Environmental and Planning Law in New South Wales [4 ed.] 1760020540, 9781760020545

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ISBN 978-1-76002-054-5

9 7817J 020545

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES Fourth edition

Rosemary Lyster BA, LLB, LLM (Natal)

Zada Lipman BA (Hons) (Wits), LLB (UNISA), LLM (Qld)

Nicola Franklin BA, LLB (Natal), LLM, Dip Legal Studies (Cambridge)

Linda Pearson BA (Syd), LLB (UNSW), LLM, MPP (Syd)

Graeme Wiffen BA, LLB (Syd), LLM (York, Canada)

THE FEDERATION PRESS

2016

LIST OF CHAPTERS

Published in Sydney by The Federation Press PO Box 45, Annandale NSW, 2038. 71 John St, Leichhardt, NSW, 2040. Ph (02) 9552 2200. Fax (02) 9552 1681. E-mail: [email protected] Website: http:/ /www.federationpress.corn.au First edition Second edition Third edition Fourth edition

2007 2009 2012 2016

National Library of Australia Cataloguing-in-Publication entry Lyster, Rosemary, author.

1

Chapter 1

Overview of Environmental Law in Australia

Chapter 2

Managing Environmental Conflict

38

Chapter 3

Land Use Planning

59

Chapter4

Development Control

91

Chapter 5

Environmental Impact Assessment in New South Wales

142

Chapter 6

Commonwealth Assessment and Approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Cth)

178

Chapter 7

Energy and Climate Law

232

Chapter 8

Water

282

Chapter 9

Integrated Natural Resource Management

345

Chapter 10

Conserving Biodiversity

384

Chapter 11

Mining and the Environment

445

Chapter 12

Protected Areas and Crown Lands

490

Chapter 13

Heritage

529

Chapter 14

Pollution

570

Chapter 15

Waste and Contaminated Land

668

Chapter 16

Chemicals and Dangerous Goods

712

Chapter 17

Corporate Social Responsibility

767

Environmental and planning law in New South Wales/ Rosemary Lyster, Zada Lipman, Nicola Franklin, Linda Pearson, Graeme Wiffen 4th ed. Includes index. ISBN 978 1 76002 054 5 (pbk) Environmental law - New South Wales Sustainable development - Law and legislation - New South Wales Regional planning - Law and legislation - New South Wales

344.944046 ©

The Federation Press This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to the publisher.

Typeset by The Federation Press, Leichhardt, NSW. Printed by OPUS Group in Australia.

For detailed Table of Contents, see over

DETAILED TABLE OF CONTENTS

DETAILED TABLE OF CONTENTS Preface About the Authors Abbreviations Table of Cases Table of Statutes

1. Overview of Environmental Law in Australia The common law: an inadequate source of environmental law Nuisance Trespass Negligence Legislation: the primary source of environmental law Legislative powers of the Commonwealth The emergence of co-operative federalism Major influences on the development of Australian environmental law International environmental law Ecologically sustainable development The Rio Declaration Economic rationalism 2.

Managing Environmental Conflict

Merits appeal Judicial review Civil enforcement Reviews outside the courts: Ombudsman The NSW Land and Environment Court The jurisdiction of the Land and Environment Court Dispute resolution in the Land and Environment Court Environmental litigation Standing Access to information Privative clauses Costs in public interest litigation General approach Land and Environment Court Overriding legislation Other accountability avenues: Independent Commission Against Corruption

3.

Land Use Planning

Issues in planning control Who decides - State or local government? Binding or flexible planning controls? Separate systems, or integrated planning controls? Planning under the Environmental Planning and Assessment Act 1979 Types of planning instruments State Environmental Planning Policies

xvii xx xxii XXX

xli

1 1

2 6 6

15 16 19

22 22 23 23 28 38 38

39 41 41 41 42 45

50 50 51 52 54 54

55

56 57

59 62 62 65 65 65 65 66

Local Environmental Plans Planning administrator Environmental and other studies Strategic plans Environmental Planning Instruments Standard instruments Special provisions for LEPs Development control plans Zoning Existing uses Characterisation Challenges to EPis

4. Development Control Development consent under Part 4 Requirement for development consent Consent authority Definition of 'development' Types of development Development applications Formal requirements Public notification Assessment Development consent Construing a development consent Lapse, modification and revocation Certification of development Certificates Issuing authority Accredited certifiers Appeals and review Merits appeals under Part 4 Division 8 Provision of public infrastructure Part 4 Division 6 Development Contributions Local infrastructure contributions Special infrastructure contributions Contributions through planning agreements State and regional development Planning Assessment Commission Joint regional planning panels State significant development State significant infrastructure 5. Environmental Impact Assessment in New South Wales Introduction Purposes of EIA Challenges for EIA law The EIA regime The structure of the EPAA

vii

73 78 79

80 80 82 83 83

84 85

87 89 91

92 92 92 93 94 98 98 100 102

110 113 113 116 116 117 118 118 118 120 120 120 . 124

124 125 126 127 128 134 142 142 143 143 144 144

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DETAILED TABLE OF CONTENTS

Part 4 - development assessment Part 5 - environmental assessment Part 5.1 - State significant infrastructure EIA: key issues Biodiversity certification and biobanking Biodiversity certification Bio banking Levels of environmental assessment Part 5 section 111 - the duty to consider environmental impact Triggering the requirement for an EIS or SIS Designated development (Pt 4) State significant development (Pt 4) State significant infrastructure (Pt 5.1) Likely to significantly affect the environment (Pt 5) Species impact statements Failure to prepare an EIS or SIS Stage at which assessment is required What must the assessment document address? Statement of environmental effects (Pt 4) Environmental impact statements (Pts 4 and 5) Species impact statement (Pts 4 and 5) Compliance with the statutory requirements Public participation Responses to public submissions Public inquiries Modifications Decision-making Concurrence where an SIS is required Relevant considerations External scrutiny and enforcement Post-approval auditing

Commonwealth Assessment and Approvals under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) Background Overview Objects of the EPBCA Regulatory framework Matters of national environmental significance Bilateral agreements Criteria to be met before making a bilateral agreement Termination of a bilateral agreement Assessment of non-controlled actions by agreement with a State 'Action' Strategic engagement Strategic assessment of policies, plans or programs Bioregional plans

DETAILED TABLE OF CONTENTS

145 146 148 149 150 150 151 152 153 155 155 157 157 157 159 161 163 164 164 164 165 166 168 169 169 170

171 171 172 175 176

6.

178 178 181 181 182 182 183 185 185 186 186 187 188 190

Controlling provisions World Heritage properties National Heritage places Ramsar wetlands Listed threatened species and ecological communities Listed migratory species Nuclear actions Commonwealth marine area Great Barrier Reef Marine Park The water trigger Matters of national environmental significance can be added by regulation Commonwealth land Commonwealth actions Exemptions Existing uses Actions covered by an accredited management arrangement or accredited authorisation process Actions covered by conservation agreements Actions authorised following Minister's advice Action taken 'in a particular manner' Activities impacting on threatened or migratory species introduced for conservation purposes Forestry operations in certain regions National interest, national security and emergency exemptions Telecommunications facilities Is a proposal a controlled action? Referring a proposal to the Minister Information provided on referral Likely to have a significant impact The Minister's decision Decision not affected by subsequent listing event Environmental assessment Bilateral agreement Declaration of the Minister Part 8 - Choosing the appropriate form of assessment Decision whether to approve an action Variation of proposed action Constraints on the power to grant approval Relevant considerations Conditions Approval is granted to a person Appeals and judicial review Appeals Judicial review of administrative decisions Compliance and enforcement Variation of conditions and suspension and revocation of approvals Directed environmental audits Enforceable financial undertakings Minister's power to make remediation determinations

ix 190 190 191 191 191 192 193 193 194 194 196

196 196 197 197 198 199 199 200 200 201 201 202 202 202 203 204 207 208 209 209

210 210 213 214 214 215 217 219 219 219 219 220 221 222 222 223

X

DETAILED TABLE OF CONTENTS

DETAILED TABLE OF CONTENTS

Court order to remediate Injunctions Civil penalties Criminal enforcement Liability of corporations, non-corporate principals and employers Liability of persons concerned in the management of a body corporate Liability of landholders for other people's actions Liability for loss or damage caused by a contravention Conclusion

223

224 225 227 228 228

229 230 230

7. Energy and Climate Law Global climate change Economists tackle climate change International instruments on global climate change The United Nations Framework Convention on Climate Change (UNFCCC) The Kyoto Protocol The post-Kyoto commitments to 2020: The Cancun Agreements The Paris Agreement Australia's vulnerability to climate change COAG initiatives on energy and climate change The National Electricity Market Wider penetration of gas Energy efficiency measures Response of the Commonwealth government to global climate change Ratifying the Kyoto Protocol The National Greenhouse and Energy Reporting Act 2007 (Cth) The Clean Energy Future Package Australia's renewable energy target Energy efficiency savings obligations and trading schemes Other emissions reduction technologies - carbon capture and storage State government actions on energy and climate change - GreenPower New South Wales initiatives on energy and climate change A GHG trading scheme and an energy savings trading scheme The Building Sustainability Index NSW Feed-in Tariff

249 250 250 252 252 253 253 253 255 270 276 277 278 279 279 280 281

8. Water The world water crisis International initiatives on water Australia's water resources The beginning of water reform in Australia The National Water Initiative Water access entitlements and planning framework Water markets and trading Best practice water pricing The National Water Commission The Murray-Darling Basin Murray-Darling Basin Act 1993 (Cth)

282 282 282 283 285 285 286 287 287 287 288 288

232 233

235 236 236 237 240

244

The 1997 Cap on extractions The Living Murray The Water Act 2007 (Cth) Constitutional authority Purpose of Water Act 2007 Governance arrangements Water and natural resource management planning Long-term average sustainable diversion caps The Basin Plan Transferring water entitlements and allocations (Schedule D to Schedule 1) Basin water charge rules and market rules Basin water charge rules Water market rules Basin Salinity Management (Schedule B to Schedule 1) The Water (Commonwealth Powers) Act 2008 (NSW) The Great Artesian Basin Urban water reform under the National Water Initiative Water Efficiency Labelling Scheme National Guidelines for Water Recycling The Water Management Act 2000 (NSW) State's water rights and abolition of common law riparian rights Objects Strategic planning for water Classes of environmental water Water management plans Access licences Keeping water allocation accounts Approvals Ministerial directions Penalties and offences Recent initiatives to deal with the impacts of mining and coal seam gas on water resources Conclusions The supply of water in New South Wales The supply of rural water The supply of metropolitan water Demand management Urban water reform and new investment opportunities in New South Wales Private sector water service providers Emerging developments

9. Integrated Natural Resource Management Key natural resource management challenges National natural resource management Australia's Native Vegetation Framework Integrated natural resource management in New South Wales Natural Resources Commission Act 2003 Catchment Management Authorities Act 2003 (NSW) Local Land Services: Farmers back in control

xi 289 289 289 290 290 291 293 293 294 298 301 301

302 302 303 303 304 304 305 306 306 307 308 308 310

315 324 324 325 325 326 327 327 328 330 335

336 336 344 345 345

347 347 349 349 351 352

xii

DETAILED TABLE OF CONTENTS

Conserving native vegetation in New South Wales History of native vegetation legislation in New South Wales Current legislative regime: Native Vegetation Act 2003 Proposed reforms to native vegetation management Coastal zone protection Co-operative federalism National coastal adaptation to climate change Coastal zone protection in New South Wales Policies and guidelines for the coastal zone Coastal Protection Act 1979 Coastal Protection Regulation 2011 Proposed Stage 2 Coastal Reform Package State Environmental Planning Policy (State and Regional Development) 2011 Coastal Lands Protection Scheme

10. Conserving Biodiversity Introduction Biodiversity and international law Convention on Biological Diversity Potential impacts of biotechnology on biodiversity Status of Australia's biodiversity National strategy and targets National Biodiversity Strategy Threatened Species Strategy Review Environment Protection and Biodiversity Conservation Act 1999 (Cth) Approaches of the EPBCA Management schemes for conserving biodiversity Listing species, communities and key threatening processes Protecting habitats Offences Permits Migratory species Whales Listed marine species Matters of national environmental importance Planning for the conservation of biodiversity Control of non-native species Aid for conservation of species in other countries International movement of wildlife specimens Marine environment Conservation agreements Environmental offsets Conserving biodiversity: New South Wales legislation Reform NSW Biodiversity Strategy Threatened Species Conservation Act 1995 Interaction with planning legislation Biodiversity offsetting The Biodiversity Offsets Policy for Major Projects

DETAILED TABLE OF CONTENTS

356 356 357 362 366 366 367 368 369 371 379 379 382 382 384 384 384 385 387 389 390 390 392 394 394 395 395 396 398 399 399 400 401 403 404 404 405 406 406 406 406 407 408 408 409 409 423 428 429

xiii

Framework for Biodiversity Assessment Creating a market in biodiversity credits under the TSCA Fisheries Management Act 1994 (NSW) Invasive species Recent biodiversity-related case law TheEPBCA The EPAA, the TSCA and other legislation Biodiversity offsets Sentencing Assessing the risk of genetically modified organisms to Australia's biodiversity Gene Technology Act 2000 (Cth) NSW moratorium on planting of GM crops Recent actual or proposed changes Clearing for fire safety Crown lands Land use zones in certain Councils Conclusion

431 432 436 437 438 438 438 439 439 441 441 442 443 443 443 443 444

11. Mining and the Environment Introduction Regulators Ownership of minerals and petroleum, land access and compensation Ownership Land access agreements and compensation Regulation of minerals and petroleum Mining titles Coal seam gas titles Environmental assessment and protection of the environment Offences under the Mining Act 1992 (NSW) and the Petroleum (Onshore) Act 1991 (NSW) Restrictions on where activities can take place Protections for National Parks and other Special Areas Protections for exempted areas Agreements for conservation on private property Protections for agricultural land Protections for houses, gardens and other significant improvements Restrictions specific to CSG exploration and production Interaction of planning and mining/petroleum processes Strategic Regional Land Use Plans and the Gateway Process Development consent under the EPAA Assessment under Part 5 of the EPAA Summary of the consent process Other approvals that may be required Commonwealth approvals Water Biodiversity Biodiversity offsets in the context of mining Judicial processes

445 445 446 447 447 448 451 452 454 457 458 459 460 460 461 461 462 462 464 464 466 475 477 477 477 478 482 483 488

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DETAILED TABLE OF CONTENTS

DETAILED TABLE OF CONTENTS

12. Protected Areas and Crown Lands IUCN Categories National Reserve System Commonwealth protected areas Commonwealth reserves Commonwealth marine protected areas Protected areas outside Commonwealth reserves New South Wales protected areas NSW parks system National Parks and Wildlife Act 1974 Reserves and declared areas Administration of the NSW parks system Enforcement under the National Parks and Wildlife Act 1974 Reserves under other New South Wales legislation Marine protected areas Crown reserves and State parks Flora reserves Travelling stock routes and reserves Protected areas under the Local Government Act 1993 Wilderness areas Conservation measures outside of protected areas under the National Parks and Wildlife Act 1974 Interim protection orders Conservation agreements Protection and care of fauna Protection of native flora Conservation and threatened species Privately owned protected areas Conclusion 13. Heritage What is heritage? Categories of heritage significance Natural heritage Cultural heritage Other values Place Regulatory regimes in New South Wales International charters and conventions Australian heritage legislation Heritage lists in New South Wales Commonwealth heritage legislation Commonwealth heritage lists World Heritage properties National and Commonwealth Heritage significance List of Overseas Places of Historic Significance to Australia Consequences under the Environment Protection and Biodiversity Conservation Act 1999

490 491 492 493 493 495 495 497 498 499 500 506 510 511 512 516 516 517 517 518 519 519 520 521 524 526 526 528 529 529 530 530 530 532 532 533 533 535 536 537 539 539 541 545 546

xv

Responsibilities of Commonwealth agencies Conservation agreements EPBCA as developing legislation Flying Foxes case Nathan Dam case New South Wales heritage legislation Heritage administration State Heritage Register Heritage agreements Other measures for the conservation of the environmental heritage State government owned heritage items Heritage objects Objects under specialist legislation Alternatives to heritage listing Protection through ownership Commonwealth alternatives - Sydney Harbour Federation Trust Act 2001 (Cth) New South Wales alternatives Local government heritage Indigenous heritage Commonwealth Indigenous heritage legislation New South Wales legislation and Indigenous heritage Concluding remarks Place or values of the place Who decides?

547 548 548 548 549 550 550 551 554 554 556 557 558 559 560 560 561 562 565 565 567 568 568 568

14. Pollution Introduction Commonwealth responsibilities for national environment protection measures Protection of the Environment Operations Act 1997 (NSW) Objects of the Act Appropriate regulatory authority Protection of the environment policies Licences Notices Pollution offences Environmental audits Enforcement Economic measures Marine pollution Accidental or operational discharges from ships Intentional dumping at sea

570 570 570 572 573 574 574 576 584 591 628 629 645 649 650 663

15. Waste and Contaminated Land Waste Commonwealth regulation of waste Hazardous waste International movements of hazardous waste Waste management in New South Wales

668 668 668 676 677 682

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DETAILED TABLE OF CONTENTS

Contaminated land Contaminated Land Management in New South Wales Contaminated Land Management Act 1997 Statutory Environmental Trust fund

691 692 692 710

16. Chemicals and Dangerous Goods Chemicals Industrial chemicals Environmentally Hazardous Chemicals Act 1985 (NSW) Ozone-depleting substances and synthetic greenhouse gases Montreal Protocol Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) Ozone Protection Act 1989 (NSW) Agricultural and Veterinary Chemicals and Pesticides National Registration Scheme Regulation of pesticides in New South Wales Dangerous goods Transportation of dangerous goods Road and rail transport of dangerous goods in New South Wales Radiation control Radiation Control Act 1990 (NSW)

712 712 713 722 727 727

728 733 735 735 737 750 750 751 755 756

17. Corporate Social Responsibility What is corporate social responsibility? Impetus for CSR Global changes Stakeholder expectations The 'value' proposition Threat of climate change litigation Leading organisations involved in CSR Organisations developing the concept of CSR Organisations endorsing CSR Organisations setting standards Organisations promoting reporting on CSR Integrated Reporting Organisations measuring CSR performance Case studies on CSR CSR and the finance sector CSR in the mining sector CSR in Australian law Legally binding reporting obligations in Australia Triple bottom line reporting in Australia Critiques of CSR Reaction from economists NGO disquiet A pragmatic approach Conclusions about CSR

767 767 768 768 769 770 771 772 772 776 778 781 782 783 786 786 794 794 794 800 802 802 803 804 805

Index

806

PREFACE

Writing a book entitled Environmental and Planning Law in New South Wales in the 21st century is, by anyone's account, a challenging project. This is so for a number of reasons. First, there has been a proliferation of environmental law statutes in the past three decades, which cover almost every aspect of the built and natural environment. So it is unusual for one author to be an expert on every single aspect of environmental law, although authors like Dr Gerry Bates still manage ably to produce sole-author texts in this area. This means that it is more common, as with this book, to find a number of co-authors contributing chapters in their special areas of expertise. The pace of legislative reform in the area of environmental law also makes keeping up-to-date an almost Herculean task. Consider the policy and legislative activity at the Commonwealth and the New South Wales levels of government in the areas of climate change, water and planning, for example. Hence the need for the co-authors of this work once again to combine their efforts to produce this fourth edition. Writing a book on Environmental and Planning Law is also challenging given that, since the mid-to-late 1990s, the New South Wales government has attempted to achieve greater integration between discrete pieces of legislation which regulate quite different environmental problems. This has been done for two different reasons. One of these is the realisation, following the 1992 United Nations Conference on Environment and Development (the Rio Conference), that the earth's natural systems are interconnected and cannot be managed separately. This is evidenced by the drafting, at that Conference, of international instruments relating to global climate change, the conservation of biological diversity and the protection of the world's forests, which are of course all interrelated. Coupled with this were the exhortations contained in the Rio Declaration and in Agenda 21 to world leaders to integrate decision-making on environmental, social and economic issues, so as to achieve sustainable development. Another, equally important, reason for the move towards integration in New South Wales was the review and reform of all laws which restrict competition and create unnecessary duplication, as required under National Competition Policy (discussed comprehensively in Chapter 1). The consequence of legislative integration for the reader of this book is that information may appear in more than one chapter. For example, the Building Sustainability Index (BASIX), which sets a greenhouse gas emissions target for buildings in New South Wales, is mentioned in both Chapter 4 (Development Control) and Chapter 7 (Energy and Climate Law). Similarly, any legislative changes to the management of native vegetation are relevant for Chapter 9 (Integrated Natural Resource Management) and Chapter 10 (Conserving Biodiversity). Bearing this in mind, the authors have attempted to provide ample cross-references between the chapters. What do the authors see as the strengths of this book? First and foremost, this book is written by leading environmental law academics who have been teaching, and researching and writing, in their chosen areas of specialisation for many years. The fourth edition introduces two new chapter authors - Ed Couzens (who revised and updated Conserving Biodiversity) and Kate Owens (who wrote the new chapter

xviii

PREFACE

Mining and the Environment). They are both Environmental Lawyers at Sydney Law School with considerable expertise in the chapters which they have revised/updated or contributed. Not only is the aim of this book to present the law accurately, but in many instances the policy behind the law is also explained. This is because the authors have been following the developments in their specialist areas every step of the way over a significant period of time. They are able to provide insights into the legislative and policy changes, and the consequences of those changes, for the environment and for society. The authors have also traced the development of the case law in the Land and Environment Court of New South Wales, the New South Wales Court of Appeal, the Federal Court of Australia and the High Court, for years. Moreover, to ensure that the book is useful for a wide readership, the authors had most chapters which appeared in the first edition reviewed by practitioners. Their reviews were most encouraging. The second major strength of the book is its explicit acknowledgement that economic rationalism has played a significant role in shaping regulatory schemes for managing the environment, including the establishment of markets in carbon, water, metropolitan water infrastructure, biodiversity, native vegetation and salinity. In this edition, the authors express their concern about the impacts of further deregulation and the 'cutting red tape' initiatives of Coalition governments at the Commonwealth and New South Wales levels. The authors question (in Chapter 1 and elsewhere) whether these regulatory responses will help or hinder attempts to achieve ecologically sustainable development - the other most significant influence on the development of environmental law in Australia. The book also includes a discussion of Corporate Social Responsibility which is regarded by many as a 'market' mechanism, in the sense that compliance by corporations with environmental and social standards is voluntary and directed at improving 'the bottom line'. For these reasons the authors are confident that this book will contribute to the broader regulatory debate and be useful to policy-makers, and to those who make, and enforce, the law. Third, the book represents the most recently updated account of the state of environmental law in New South Wales and the Commonwealth. As far as is humanly possible, the authors have ensured that the law is updated to 24 December 2015, while accepting that it is likely to be outdated in some significant respect very shortly. Such is the nature of environmental law-making! Now to some explanation of the chapters. Chapter 1 (co-authored by Zada Lipman and Rosemary Lyster) provides an Overview of Environmental Law in Australia, including a comprehensive discussion of the common law, ecologically sustainable development and market mechanisms. Chapter 2 (Managing Environmental Conflict - authored by Linda Pearson based on material originally in Chapter 1 in the first edition) discusses the various avenues for scrutiny of Commonwealth and New South Wales environmental decision-making, including merits review, judicial review and civil enforcement. The chapters on Land Use Planning, Development Control, and Environmental Impact Assessment have been substantially re-worked since the first edition, charting the extensive changes in NSW Environmental Planning Law over this period. Chapter 3 (authored by Linda Pearson) deals with Land Use Planning. Chapter 4 (Development Control) covers the processes for development consent under Part 4 of the Environmental Planning and Assessment Act 1979 (authored by Linda Pearson) and the processes for determining State significant development and infrastructure (authored by Nicola Franklin). Chapter 4 also covers the new regime for State and regional

PREFACE

xix

development which replaced Part 3A on 1 October 2011. Chapters 5 and 6 (authored by Nicola Franklin) cover environmental impact assessment in New South Wales and the Commonwealth, respectively, the latter referencing the independent review of the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Chapters 7 and 8 (authored by Rosemary Lyster) deal with Energy and Climate Law, and Water Law, two of the most pressing natural resource issues and areas of major change in recent years. Chapter 7 discusses the Abbott government's repeal of Australia's Clean Energy Future legislative package, the establishment of the Emissions Reduction Fund and changes to the Renewable Energy Target. The 2015 Paris Agreement under the United Nations Framework Convention on Climate Change is also discussed. Chapter 8 details, among other things, the Murray-Darling Basin Plan as well as the many modifications to the operation of the Plan brought about by the Abbott government. Chapters 9 (Integrated Natural Resource Management - authored by Rosemary Lyster), 10 (Conserving Biodiversity - revised and updated by Ed Couzens), 11 (Mining and the Environment - authored by Kate Owens) and 12 (Protected Areas and Crown Lands - authored by Graeme Wiffen) also need to be read together. This is because, as explained above, attempts to manage natural resources in an integrated way and the conservation of biodiversity have resulted in legislative schemes which overlap. Chapter 13 (authored by Graeme Wiffen) discusses Australia's complicated system of heritage laws at the national and State levels. Chapter 14 (authored by Zada Lipman) provides a comprehensive account of Pollution Control, while in Chapter 15 (authored by Zada Lipman) the management of Waste and Contaminated Land is discussed together in a holistic and innovative way. Both chapters have been updated to cover recent developments, including the 2011 amendments to the Protection of the Environment Operations Act 1997 (NSW) and the introduction of the Commonwealth Product Stewardship framework legislation. Chapter 16 (authored by Zada Lipman) provides a comprehensive discussion and analysis of legislation dealing with Chemicals and Dangerous Goods, as well as recent changes to the radiation and dangerous goods regulations. The book concludes with Chapter 17 (Corporate Social Responsibility - authored by Rosemary Lyster). It is difficult in a co-authored work of this nature for each author individually to acknowledge and thank the many people who have supported their efforts. Nevertheless, the authors are sure that these people know who they are. The co-authors acknowledge each other's generous teamwork and contributions, and welcome Ed Couzens and Kate Owens as new chapter authors. We take this opportunity to acknowledge the sudden and sad passing of Chris Holt on the day that we were engaged in email discussions about this edition of the book. His presence and gracious shepherding of, and support for, this book are greatly missed. We thank Jason Monaghan and our editor, Kathryn Fitzhenry, of The Federation Press for their ongoing forbearance, support and assistance in bringing this extensive piece of work to fruition a fourth time.

Rosemary Lyster Zada Lipman Nicola Franklin Linda Pearson Graeme Wiffen February 2016

ABOUT THE AUTHORS

ABOUT THE AUTHORS

Ro~ema~y Lyster is Professor of Climate and Environmental Law at Sydney Law School, University of Sydney, where she teaches Environmental Law specialising in Energy and Climate Law, Climate Disaster Law, and Water Law and Climate Change. She also teaches Administrative Law. She was the Director of the Australian Centre for Climate and Environmental Law from 2003-15. Rosemary is the Energy Law and Water Law Special Editor of the Environmental and Planning Law Journal. She is a member of the Special Working Groups on Water and Wetlands, Energy and Climate Change, and Forests within the IUCN Commission on Environmental Law. Zada Lipman is an Emeritus Professor in the School of Law, Macquarie University. Over the past 30 years, she has been involved in teaching and researching in the area of environmental law. Recent teaching includes pollution law, coastal adaptation law, environmental impact assessment law and planning law. Zada is the Australian editor of ~he Environme~tal Liability Journal and is the New South Wales and Pollution Special Editor of the Environmental and Planning Law Journal. Zada is a member of the New South Wales Planning Assessment Commission and the IUCN Commission on Environmental Law. She is a member of the Commission's Special Working Group on Enforcement and Compliance and a member of the Special Working Group on Oceans, Coasts and Coral Reefs. Nicola Franklin is Honorary Senior Lecturer in the Faculty of Law, University of Sydney. Over many years she has taught a range of public law and environmental law subjects, including Environmental Planning Law, EIA Law and Administrative Law. Until recently she co-ordinated the Faculty's Environmental Law Program, was Deputy Director of the Australian Centre for Climate and Environmental Law and coedited the Asia Pacific Journal of Environmental Law. She co-chaired Warringah Council's Independent Hearing and Assessment Panel from 2001 to 2010. Linda Pearson is a Commissioner, Land and Environment Court of New South Wales1 and a ~isiting Fellow, Faculty of Law University of New South Wales. Before joining the Court m 2009 she taught Administrative Law and Environmental Law at the University of New South Wales. She is the author of Local Government Law in New South Wales (Federation Press), the former Natural Resources editor for Australian Administrative Law and is a member of the IUCN Commission on Environmental Law. ' Gr~eme_Wiffen taught Heritage Law and Planning Law in the School of Law, Macquarie Umvers1ty, Sydney, and writes on legal aspects of the protection of natural and cultural heritage. Graeme is active in organisations concerned with natural and cultural heritage ~s a ~ember of ICLAFI, the international scientific committee on legal and administrative issues of the International Committee for Monuments and Sites (ICOMOS); the IUCN Commission on Environmental Law; and the IUCN World Commission on Protected Areas. Graeme is also the Vice-President of the National Parks Association of New South Wales and Secretary of the National Parks Australia Council.

xxi

Chapter Authors Ed Couzens is an Associate Professor in the Sydney Law School, University of Sydney, where he teaches Environmental Law, specialising in International Wildlife Law, Biodiversity Protection and the law relating to Conservation. He also teaches Public International Law. From 2016, he is the Director of the Australian Centre for Climate and Environmental Law (ACCEL). He is an editor on the Asia-Pacific Journal of Environmental Law and on the International Environmental Law-making and Diplomacy Review (University of Eastern Finland/UNEP). He is the author of Whales and Elephants in International Law and Politics (Earthscan/Routledge, 2014); co-author of Environmental Law: South Africa (Kluwer Law, 2013); and co-editor of International Environment Law-making and Diplomacy: Insights and Overviews (Earthscan/Routledge, 2016). Kate Owens is a Lecturer in the Faculty of Law, University of Sydney, specialising in environmental law. She researches and teaches in the areas of water law, mining law, International and Australian environmental law and environmental regulation and governance, and is currently writing a book on environmental water markets and regulation. Kate is the Deputy Director of the Australian Centre for Climate and Environmental Law and the Book Review editor for the Asia-Pacific Journal of Environmental Law. Before her appointment, Kate practised for a number of years in State Government and leading commercial firms in Australia and New Zealand, providing advice and litigation services in relation to a range of environmental, planning, administrative and public law matters.

ABBREVIATIONS

xxiii

CAMBA

China-Australia Migratory Bird Agreement: Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment 1986

CCA

Climate Change Authority

CCAA

Climate Change Authority Act 2011 (Cth)

ABBREVIATIONS

Administrative Appeals Tribunal

cco ccs

chemical control order

AAT ACCC

Australian Competition and Consumer Commission

COM

clean development mechanism

ACCU

Australian Carbon Credit Units

CEA

Clean Energy Act 2011 (Cth)

ACF

Australian Conservation Foundation

CEO

chief executive officer

ADJRA AEMC

Administrative Decisions (Judicial Review) Act 1977 (Cth)

CER

Clean Energy Regulations 2011 (Cth)

Australian Energy Market Commission

CERA

Clean Energy Regulator Act 2011 (Cth)

AEMO

Australian Energy Market Operator

CFC

chloroflurocarbon

AER

Australian Energy Regulator

CFI

Carbon Farming Initiative

AETS

Australian Emissions Trading Scheme

CFI Act

Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth)

AgvetCode

Agricultural and Veterinary Chemicals Code (Cth)

CHO

Chief Health Officer

AIP

Aquifer Interference Policy

CITES

ANZECC

Australian and New Zealand Environment and Conservation Council

Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973

CLMA

Contaminated Land Management Act 1997 (NSW)

ANZFSC

Australia New Zealand Food Standards Council

CLMR

Contaminated Land Management Regulation 2013 (NSW)

AP

assessment plan

CMA

Catchment Management Authority

APVMA

Australian Pesticides and Veterinary Medicines Authority

CMAA

Catchment Management Authorities Act 2003 (NSW)

ARA

appropriate regulatory authority

CMS

Convention on the Conservation of Migratory Species 1979

ASIC

Australian Securities and Investment Commission

C02 -e

carbon dioxide equivalent

AVCAA

Agricultural and Veterinary Chemicals (Administration) Act 1992 (Cth)

COAG

Council of Australian Governments

AWG-LCA

Ad Hoc Working Group on Long-term Cooperative Action under the Convention

COP

Conference of the Parties

CPA

Competition Principles Agreement

AWG-KP

Ad Hoc Working Group on Further Commitments for Annex I Parties under the Kyoto Protocol

CPA

Coastal Protection Act 1979 (NSW)

AWS

Australian Water Services (Pty) Ltd

CPRS

Carbon Pollution Reduction Scheme

BASIX

Building Sustainability Index

CSG

coal seam gas

BDAC

Biological Diversity Advisory Council

cso

community service objectives

Bonn Convention

Convention on the Conservation of Migratory Species of Wild Animals 1979

CSR

corporate social responsibility

Cth

Commonwealth

BPA

Building Professionals Act 2005 (Cth)

CZMPs

coastal zone management plans

CA Regulation

Protection of the Environment Operations (Clean Air) Regulation 2010

DA

development application

(NSW)

DCP

development control plan

Australian Corporations and Markets Advisory Committee

DEC

(former) NSW Department of Environment and Conservation

DECC

(former) NSW Department of Environment and Climate Change (now the OEH)

CAMAC

carbon capture and storage

xxiv

ABBREVIATIONS

ABBREVIATIONS

DGA DGR DJSI DNSP EA ECPWs

Dangerous Goods (Road and Rail Transport) Act 2008 (NSW) Road and Rail Transport (Dangerous Goods)(Road) Regulation 2014 (NSW) Dow Jones Sustainability Indexes distribution network service provider environmental assessment emergency coastal protection works

EHCA

Environmentally Hazardous Chemicals Act 1985 (NSW) EHC Regulation Environmentally Hazardous Chemicals Regulation 2008 (NSW) EIA environmental impact assessment EIS environmental impact statement EITE emissions-intense trade-exposed (entity or activity) EMP Environmental Management Plan EMS Environmental Management System EOAM Environmental Outcomes Assessment Methodology EPA Environment Protection Authority EPAA Environmental Planning and Assessment Act 1979 (NSW) EPAR Environmental Planning and Assessment Regulation 2000 (NSW) EPBCA Environment Protection and Biodiversity Conservation Act 1999 (Cth) EPBCR Environment Protection and Biodiversity Conservation Regulations 2000(Cth) EPI environmental planning instrument ERA Energy Resources of Australia ERF Emissions Reduction Fund ESA Electricity Supply Act 1995 (NSW) ESC Energy Savings Certificate ESD ecologically sustainable development ESG environmental, social and governance ESS NSW Energy Saving Scheme ETA Environmental Trust Act 1998 (NSW)

GRI

Global Reporting Initiative

GTA

HCFC

Gene Technology Act 2000 (Cth) Gene Technology Regulator hydrobromofluorocarbon hydrochlorofluorocarbon

HFC

hydrofluorocarbon

GTR HBFC

ICA

international consultation and analysis

ICMM

International Council on Mining and Metals

ICZM

integrated coastal zone management

IESC

Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development

IGAE

Intergovernmental Agreement on the Environment

IGAMDB

Intergovernmental Agreement on Addressing Water Overallocation and Achieving Environmental Objectives in the Murray-Darling Basin

IGANWI

Intergovernmental Agreement on a National Water Initiative

IHAP

Independent Hearing and Assessment Panel

IMER

Improved Management of Exploration Regulation

IMP

Integrated Mining Policy

INDC

Intended Nationally Determined Contributions

IPA

Indigenous Protected Area

IPART

Independent Pricing and Regulatory Tribunal

ILO

International Labour Organization

IPCC

Intergovernmental Panel on Climate Change

IRM

integrated resource management

ISO

International Organization for Standardization

JAMBA

Japan-Australia Migratory Bird Agreement: Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1974

European Union

JI LEC

joint implementation

EU FBA

Framework for Biodiversity Assessment (NSW)

LECA

Land and Environment Court Act 1979 (NSW)

FiT

Feed-in Tariff

LEP

local environmental plan

FMA

Fisheries Management Act 1994 (NSW) government business enterprise Great Barrier Marine Park Act 1975 (Cth) greenhouse gas genetically modified organisms

LEPID

Liable Entities Public Information Database

LGA LGGR

Local Government Act 1993 (NSW) large-scale generation certificate Local Government (General) Regulation 2005 (NSW)

LNG

liquefied natural gas

GBE GBRMPAct GHG GMOs

XXV

LGC

NSW Land and Environment Court

xxvi

ABBREVIATIONS

LPG

liquid petroleum gas

LRET

Large-scale Renewable Energy Target

MA 1992

ABBREVIATIONS

NICNAS

National Industrial Chemicals Notification and Assessment Scheme

Mining Act 1992 (NSW) Man and Biosphere Program

NPWA NRCA NRMMC

MCE

International Convention for the Prevention of Pollution from Ships 1973/78 Ministerial Council on Energy

National Parks and Wildlife Act 1974 (NSW) Natural Resources Commission Natural Resources Commission Act 2003 (NSW) Natural Resource Management Ministerial Council

NSW

New South Wales

MCMPR

Ministerial Council on Mineral and Petroleum Resources

NVA

MDB

Murray-Darling Basin

NVCA

MDBA

Murray-Darling Basin Authority

NWI

MDBC

Murray-Darling Basin Commission

OECD

MDBMC

Murray-Darling Basin Ministerial Council

OEH

Native Vegetation Act 2003 (NSW) Native Vegetation Conservation Act 1997 (NSW) National Water Initiative Organization for Economic Co-operation and Development NSW Office of Environment and Heritage

MEMA

OPA

PAS

NAMA

Marine Estate Management Act 2014 (NSW) market network service provider memorandum of understanding Marine Pollution Act 2012 (NSW) Marine Pollution Regulation 2014 (NSW) Mining Regulation 2010 (NSW) monitoring, reporting and verification nationally appropriate mitigation action

NAP

National Action Plan on Salinity and Water Quality

PEOA

NCC

National Competition Council

PEP

NCP

National Competition Policy

PER

NDCs

Nationally Determined Contributions

PFC

NEL

National Electricity Law

PNF

NEM

National Electricity Market

POA 1991

MAB

MARPOL

NRC

xxvii

NEPA

United States National Environmental Policy Act of 1969

POP

NEPC

National Environment Protection Council

PPP

Offshore Petroleum Act 2006 (Cth) Office of Renewable Energy Regulator Online System for Comprehensive Activity Reporting Priorities Action Statement Partial Exemption Certificate Petroleum Exploration Licence Protection of the Environment Operations (General) Regulation 2009 (NSW) Protection of the Environment Operations Act 1997 (NSW) protection of the environment policy public environment report perfluorocarbon private native forestry Petroleum (Onshore) Act 1991 (NSW) persistent organic pollutant policies, plans or programs

NEPCA

National Environment Protection Council Act 1994 (Cth) National Environment Protection Measure

PRI

Principles for Responsible Investment

NEPM

PROTEA

Protection of the Environment Administration Act 1991 (NSW)

NETS

National Emissions Trading Scheme

PVP

Property Vegetation Plan

NFEE

National Framework for Energy Efficiency

RAC

refrigeration and air conditioning

NGERA

RAMAs

Routine agricultural management activities

RC Act

NGL

National Greenhouse and Energy Reporting Act 2007 (Cth) National Greenhouse and Energy Reporting Regulations 2008 (Cth) National Gas Law

NGO

non-government organisation

RE(E)A

Radiation Control Act 1990 (NSW) Radiation Control Regulation 2013 (NSW) Renewable Energy (Electricity) Act 2000 (Cth)

NHMRC

National Health and Medical Research Council

REC

renewable energy certificate

REF

review of environmental factors

MNSP MOU MP Act MP Regulation MR2010 MRV

NGERR

ORER OSCAR PEC PEL PEO (Gen) Regulation

RC Regulation

xxviii

ABBREVIATIONS

ReformIGA REP RET RFA RFAAct

Agreement on Murray-Darling Basin Reform regional environmental plan Renewable Energy Target regional forestry agreement Regional Forest Agreements Act 2002 (Cth) Rural Fire Service

ABBREVIATIONS

UNEP

United Nations Environment Programme

UNEPFI

United Nations Environment Programme Finance Initiative

UNESCO

United Nations Educational, Scientific and Cultural Organization

UNFCCC

United Nations Framework Convention on Climate Change

WA (Cth)

Regulatory Guiding Principles renewable power percentage

WARRA WBCSD

Water Act 2007 (Cth) Wilderness Act 1987 (NSW) Waste Avoidance and Resource Recovery Act 2001 (NSW) World Business Council for Sustainable Development

WCMG

waste coal mine gas

WELS

Water Efficiency Labelling Scheme Act 2005 (Cth) Water Industry Competition (General) Regulation 2008 (NSW)

SDL

Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 UNFCCC Subsidiary Body on Implementation Sydney Water Catchment Authority Sustainable Development Goals Sustainable Diversion Limit

SEAC

Social and Economic Advisory Council

SEE

Statement of Environment Effects

SEPP

State Environmental Planning Policy

SGG

synthetic greenhouse gas

SIDS

small island developing states

SIS

species impact statement

soc

State Owned Corporation

SOCA

SSD

State Owned Corporations Act 1989 (NSW) State Planning Control Commission socially responsible investing Strategic Regional Land Use Plans State significant development

STC

small-scale technology certificate

STP

small-scale technology percentage

SWA

Sydney Water Act 1994 (NSW)

SWMOP

State Water Management Outcomes Plan

TBL

triple bottom line

TNSP

transmission network service provider

TPA

former Trade Practices Act 1974 (Cth)

TSCA

Threatened Species Conservation Act 1995 (NSW) Threatened Species Conservation Regulation 2010 (NSW)

RFS RGPs RPP Rotterdam Convention SBI

SCA SDGs

SPCC SRI

SRLUPs

TSCR TSCBBR UNCED

Threatened Species Conservation (Biodiversity Banking) Regulation 2008 (NSW) United Nations Conference on Environment and Development

1992

xxix

WA (NSW)

WICGR WMA WSSD WMO

Water Management Act 2000 (NSW) World Summit on Sustainable Development World Meteorological Organization

TABLE OF CASES

TABLE OF CASES 363 Military Road Mosman Pty Ltd v Owners Strata Plan 72814 [2012] NSWSC 263: 45 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685: 115 Abret Pty Ltd v Wingecarribee Shire Council [2011] NSWCA 107: 88 ADI Ltd v EPA [1998] NSWLEC 279: 605 Agostino v Penrith City Council (2010) 172 LGERA 380: 70 AJS Hotel Management Pty Ltd v Lismore City Council [2013] NSWLEC 10: 610 Alamdo Holdings Pty Ltd v Hills Shire Council [2012] NSWLEC 1302: 106 Aldous v Greater Taree City Council [2009] NSWLEC 17: 27, 112 Aldred's Case (1611) 9 Co Rep 57b; 77 ER 816: 3 Alec Finlayson Pty Ltd v Armidale City Council (1994) 51 FCR 378; 84 LGERA 225: 7, 10, 709 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103: 113 Allen v Gulf Oil Refining Ltd [1981] AC 1001: 3, 6 Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435: 121 Alphacell Ltd v Woodward [1972] AC 824: 601-603 Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138: 128 American Electric Power Co v Connecticut 564 US, No 10-174 (2011): 5 Ampol Ltd v EPA (unreported, NSWCA, 60139/95, 26 October 1995): 598 Ampol Ltd v EPA (unreported, HCA, 15 June 1996): 598 Anderson v Director General of Department of Environment and Climate Change [2008] NSWCA 337: 108, 174-175 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCA 1480: 181, 206 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2007] FCAFC 3: 51, 181, 205-206 Aquatic Airways Pty Ltd v Warringah Shire Council (1990) 71 LGRA 10: 94 Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502: 114, 121 Armidale City Council v Alex Finlayson Pty Ltd (1999) 104 LGERA 9: 8, 709 Arnold v Minister Administering the Water Management Act 2000 [2014] NSWCA 386: 313,323 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; [1947] 2 All ER 680: 13, 40, 174 Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38: 41, 112 Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437: 4 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169:3-4

Auburn Municipal Council v Szabo (1989) 67 LGRA 427: 113 Australia and New Zealand Banking Group Ltd v Apollo Valley Pty Ltd [2013] NSWLEC 108: 42 Australian Airlines Commission v Newman (1987) 162 CLR 466: 10 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321: 40 Australian Conservation Foundation v Commonwealth (1980) 146 CLR 493: 489 Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200: 220 Australian International Academy of Education Inc v Hills Shire Council [2013] NSWLEC 1: 114 Australian Iron and Steel Pty Ltd v EPA (No 2) (1992) 29 NSWLR 497: 627 Australian Leisure & Hospitality Group Pty Ltd v Manly Council (No 4) (2009) 172 LGERA 1: 43 Australian Leisure & Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53: 118 Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33: 57, 130, 137, 172, 710 Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70: 57,710 AWA Ltd v Daniels (1992) 7 ACSR 759: 623 Axer Pty Ltd v EPA (1993) 113 LGERA 357: 639 Azriel v NSW Land and Housing Corporation (2006] NSWCA 372: 174 Bailey v Forestry Commission (1989) 67 LGRA 200:158-159,164,167 Ball v Consolidated Ru tile [1991] Qd R 524: 4 Balmain Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615: 79 Bankstown City Council v Alamdo Holdings Pty Ltd (2005) 223 CLR 660: 12 Bankstown City Council v Hanna [2014] NSWLEC 152: 609-610, 638-639, 643 Bankstown City Council v Ramahi [2015] NSWLEC 74: 44 Barac v Farnell (1994) 125 ALR 241: 623 Barca v Wollondilly Shire Council [2014] NSWLEC 118: 119, 168, 171 Barrick Australia Ltd v Williams (2009) 74 NSWLR 733: 138 Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113: 130-131, 474-475 Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCA 113: 215 Baulkham Hills Shire Council v AV Walsh Pty Limited (1968) 15 LGRA 338: 3

Baulkham Hills Shire Council v Group Development Services Pty Ltd [2005] NSWCA 315: 122 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404: 88 Bell v Minister of Urban Affairs & Planning (1997) 95 LGERA 86: 166-168 Belmorgan Property Development Pty Ltd v GPT RE Ltd (2007] NSWCA 171: 174, 175 Bentley v BGP Properties Pty Ltd (2006) 145 LGERA 234: 28, 418, 637-638 Betland v EPA (2010] NSWLEC 183: 744, 746 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223: 119 BGP Properties Pty Ltd v Lake Macquarie City Council (2004] NSWLEC 399; 138 LGERA 237: 27, 49, 60, 105 Blackmore Design Group Pty Ltd v Manly Council [2014] NSWLEC 164: 100 Blakeney v Mosman Municipal Council [2013] NSWLEC 100: 118 Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331: 70 Blue Mountains City Council v Prospect County Council (1992) 74 LGRA 129: 163 Blue Mountains Conservation Society v Delta Electricity (2009) 170 LGERA 1: 56 Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8: 51, 54, 214-215 Blue Wedges Inc v Minister for the Environment [2008] FCA 399: 181 Board of Fire Commissioners v Ardouin (1961) 109 CLR 105: 10 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651: 139 Booth v Bosworth (2001) 114 FCR 39: 51, 157, 181, 206-207, 224, 548-549 Bora! Resources (Country) Pty Ltd v Clarence Valley Council and Avard [2009] NSWLEC 81: 162 Bora! Resources (Country) Pty Ltd v Clarence Valley Council and Avard (No 2) (2009] NSWLEC 133: 168 Botany Bay City Council v Minister for Planning and Infrastructure (2015] NSWLEC 12: 131 Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147: 88 Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446: 161 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308: 111, 113 Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120: 89 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453: 148 Bright v Acrocert Pty Ltd [2012] NSWLEC 173: 48 Brodie v Singleton Shire Council (2001) 206 CLR 512:8, 14 Brown v EPA (No 2) (1992) 78 LGERA 119: 147-148, 577 Brown v Forestry Tasmania (No 4) (2006] FCA 1729:181, 186,201,205 Brown v Randwick City Council [2011] NSWLEC 172: 53, 102, 139 Brownlie v SPCC (1992) 27 NSWLR 78: 601

xxxi

BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210: 160-161 Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure [2013] NSWLEC 48: 39, 131, 137, 472, 474, 484 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520: 7 Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420: 80, 144 Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404: 117 Bushell v Secretary of State for the Environment [1981] AC 75: 170 Buzzacott v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCAFC 111: 217-218 Cabonne Shire Council v EPA (2001) 115 LGERA 304:639 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50: 127 Calardu Penrith Pty Ltd v Penrith City Council (2010) 174 LGERA 446: 127 Caltex Australia Petroleum Pty Ltd v Charben Haulage Pty Ltd (2005] FCAFC 271: 705 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR649:9 Calvert Cliffs' Coordinating Committee v United States ACE 449 F 2d 1109 (DC Cir, 1971): 153 Camilleri's Stock Feeds Pty Ltd v EPA (1993) 32 NSWLR 683; 82 LGERA 21: 637, 639-640 Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317: 77, 89 Capital Airport Group Pty Ltd v Director-General of the Department of Planning (2010) 171 LGERA 440: 90 Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83: 80, 144 Carltona Ltd v Commissioner of Works [1943] 2 All ER 560: 175 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd (2009) 170 LGERA 25: 55-56 Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59: 55 Carstens v Pittwater Council (1999) 111 LGERA 1: 40, 60, 105, 161 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65: 111 Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401; 135 LGERA 257: 108, 175 Centro Properties Ltd v Hurstville City Council (2006] NSWLEC 78: 50, 96 Cessnock City Council v Laila Investments Pty Ltd [2012] NSWLEC 206: 117 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400: 87 Charben Haulage Pty Ltd v Environmental and Earth Sciences Pty Ltd [2004] FCA 403: 704 Charterbridge Corporation Ltd v Lloyds Bank Ltd [1970] Ch 62: 800 Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161: 226

xxxii

TABLE OF CASES

Chief Executive, Office of Environment and Heritage v Bombala Investments Pty Ltd (2013] NSWLEC 185: 440 Chief Executive, Office of Environment and Heritage v Coffs Harbour Hardwoods Sales Pty Ltd (2012] NSWLEC 52: 439 Chief Executive, Office of Environment and Heritage v Kyluk Pty Ltd (No 4) (2014] NSWLEC 74: 440 Chief Executive, Office of Environment and Heritage v Lani (2012] NSWLEC 115: 440 Chief Executive, Office of Environment and Heritage v Leda Management Services Pty Ltd (2013] NSWLEC 111: 440 Chief Executive, Office of Environment and Heritage v Orica Pty Ltd (2015] NSWLEC 109:440 Citizens Airport Environment Assoc Inc v Maritime Services Board (1993) 79 LGERA 254: 148 Coffs Harbour City Council v Arrawarra Beach Pty Ltd (2006) NSWLEC 365: 161, 168 Coffs Harbour City Council v Minister for Planning and Infrastructure (2012) NSWLEC 4:131 Coffs Harbour City Council v Rabbits Eat Lettuce Pty Ltd (2015] NSWLEC 2: 93 Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council (1994) 84 LGERA 324: 80 Cohen v City of Perth (2000) 112 LGERA 145: 3 Cole v Whitfield (1988) 165 CLR 360: 18 Coles Holdings v Tweed Shire Council (1999) 110 LGERA 235: 147 Commissioner for Corporate Affairs v Bracht (1989] VR 821: 624 Commonwealth v Tasmania (Tasmanian Dams case) (1983) 158 CLR 1: 16-17, 537 Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services (2015] NSWLEC 167: 131, 136-137, 140, 171 Community Association DP 270253 v Woollahra Municipal Council (2013] NSWLEC 184: 139 Community Association DP270253 v Woollahra Municipal Council (2015] NSWCA 80: 55 Concrite Pty Ltd v South Sydney City Council (2001) 117 LGERA 87: 107 Connecticut v American Electric Power 406 F Supp 2d 265 (SDNY) 2005: 5 Connell v Santos NSW Pty Ltd (2014] NSWLEC 1: 459,479 Cooper v ICI Australia Operations Pty Ltd (1987) 64 LGRA 58: 601-602, 626 Corkhill v Forestry Commission of New South Wales (1990] NSWLEC 77: 424 Corowa v Geographe Point Pty Ltd (2007] NSWLEC 121: 160-161 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319: 10 Corporation of City of Enfield v Development Assessment Commission (2000) 199 CLR 135: 155,162 Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012] NSWLEC 194: 87 Cranky Rock Road Action Group Inc v Cowra Shire Council (2006] NSWLEC 159: 55

TABLE OF CASES xxxiii

Cranky Rock Road Action Group Inc v Cowra Shire Council (2006] NSWCA 339: 100, 162-163 Cumerlong Holdings Pty Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492: 82 Curac v Shoalhaven City Council (1993) 81 LGERA 124: 168 Daniels v Anderson (1995) 16 ACSR 607: 623 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012] NSWCA 48: 95 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588: 48 Davis v Commonwealth (1988) 63 ALJR 35: 19 Davis v Gosford City Council (2014] NSWCA 343: 107, 172 De Angelis v Pepping (2015) NSWCA 236: 75-76 Dean v Minister for Planning and Andros Australia Pty Ltd (2007] NSWLEC 779: 129 Deancliff Developments Pty Ltd v Hornsby Shire Council (2005] NSWCA 271: 106 Delta Electricity v Blue Mountains Conservation Society Inc) (2010) 176 LGERA 424: 56 Detala Pty Ltd v Byron Shire Council (2002] NSWCA 404: 114 Devon v New World Properties (NSW) (unreported, NSWLEC, McClelland J, 1984): 80 Direct Factory Outlets Homebush Pty Ltd v Strathfield Municipal Council (2006) NSWLEC 318: 107 Director General of Department of Environment, Climate Change and Water v Walker (2011] NSWLEC 229: 620 Director of Public Prosecutions v Serna! Pty Ltd (unreported, Melbourne Magistrates Court, Smith M, No H540840, 8 June 1995): 732 Director-General of Department of Climate Change v Jack and Bill Issa Pty Ltd (No 5) (2009) 172 LGERA 225: 622, 626 Director-General of Department of Environment, Climate Change and Water v Venn (No 3) (2012] NSWLEC 31: 438 Director-General of Department of Environment and Climate Change v Walker Corporation Pty Ltd (No 2) (2010] NSWLEC 73: 603 Director-General of Department of Environment, Climate Change and Water v Walker Corporation Pty Ltd (No 2) (2012] NSWCCA 210:602 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW)482:3 Donoghue v Stevenson (1932] AC 562: 6, 9 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003] HCA 26: 174 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186: 157-159 Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155:157 Eastlakes Golf Club v Botany Bay City Council (2006] NSWLEC 343: 159 Eco-Villages Australia Pty Ltd v Pittwater Council (2012] NSWLEC 49: 100 Egan v Hawkesbury City Council (1993) 79 LGERA 321): 167 El Cheikh v Hurstville City Council (2006] NSWCA 173: 77 Electricity Commission of New South Wales v EPA (1992) 28 NSWLR 494: 604

Elston v Dore (1982) 149 CLR 480: 3 Empress Car Co (Abertillery) Ltd v National Rivers Authority (1998] 1 All ER 481: 602 Enfield City v Development Assessment Commission (1996) 91 LGERA 277: 159 Engadine Area Traffic Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365: 55 Environmental and Earth Sciences Pty Ltd v EPA (1999) 103 LGERA 434: 601-602, 626 EPA v Aargus Pty Ltd (2013] NSWLEC 19: 613 EPA v Ampol Ltd (1993) 81 LGERA 433: 597-598 EPA v Anning (1998) 100 LGERA 354: 594-595 EPA v Ashmore (2014] NSWLEC 136: 611, 613 EPA v Australian Iron and Steel Pty Ltd (No 2) (1993) 78 LGERA 373: 603, 606 EPA v Australian Waste Recyclers 1 Pty Ltd (2005] NSWLEC 739: 638 EPA v Bathurst City Council (1995) 89 LGERA 79: 601,604 EPA v Betland (Lismore Local Court, December 2010): 744, 746 EPA v Big Island Mining Pty Ltd (2012] NSWLEC 131:605 EPA v BMG Environmental Group Pty Ltd & Barnes (2012] NSWLEC 69: 635, 638 EPA v Brazel (2002) 119 LGERA 72: 626-627 EPA v Brown and Hatton Rural Pty Ltd (1992) 77 LGRA 383: 619 EPA v Buchanan (No 2) (2009) 165 LGERA 383: 624 EPA v Bulga Coal Management Pty Ltd (2014] NSWLEC 5: 617 EPA v Caltex Australia Petroleum Pty Ltd (2007] NSWLEC 647: 604, 618 EPA v Caltex Refining Co Pty Ltd (1993) 178 CLR 477: 631 EPA v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101: 579 EPA v Coal and Allied Operations Pty Ltd (2013] NSWLEC 134: 605, 638, 642 EPA v Coggins (2003) 126 LGERA 219: 598, 641 EPA v Djura (2012] NSWLEC 122: 704 EPA v Forbes Shire Council (2014] NSWLEC 26: 605,618 EPA v Foxman Environmental Development Services Pty Ltd (2013] NSWLEC 105: 610-612, 624 EPA v Fulton Hogan Pty Ltd (2008] NSWLEC 268; 163 LGERA 345: 637-640 EPA v Gardner (1997] NSWLEC 212: 592 EPA v Geerdink [2010] NSWLEC 24: 624, 635 EPA v Ghossayn (2009] NSWLEC 181: 606, 612, 624 EPA v Greater Taree City Council (2014) NSWLEC 88:604,642 EPA v Hanna (2013] NSWLEC 41: 643 EPA v Hanson Precast Pty Ltd (2008) NSWLEC 285:638 EPA v Hardt (2006) 148 LGERA 61: 599, 603, 612 EPA v Hogan (2008] NSWLEC 125: 612, 624, 638 EPA v Jasper (2003) 139 A Crim R 329: 603 EPA v Keogh [1999] NSWLEC 231: 592 EPA v Leaway P/L (2006] NSWLEC 44: 687 EPA v MA Roche Group Pty Ltd (2013) NSWLEC 191:605 EPA v MA Roche Group Pty Ltd (2014] NSWLEC 114:642

EPA v Mainfreight Distribution Pty (2015] NSWLEC 6: 754 EPA v McConnell Dowell Constructors (Aust) Pty Ltd (2003] NSWLEC 70: 620-621 EPA v Milpharma Pty Ltd (1994] NSWLEC 189: 626,627 EPA v Mistring P/L (2013] NSWLEC 9: 589, 700 EPA v Moolarben Coal Operations Pty Ltd (No 1) (2012] NSWLEC 65: 604-605 EPA v Moolarben Coal Operations Pty Ltd (No 2) (2012] NSWLEC 80: 605 EPA v Multiplex Constructions Pty Ltd (2000) 112 LGERA 1: 602-603, 620 EPA v Munters Pty Ltd (1997) 98 LGERA 279: 604 EPA v N (1992) 26 NSWLR 352: 596 EPA v Oba id (2005] NSWLEC 171: 624 EPA v Orica Australia Pty Ltd (the Ammonia Incident) (2014] NSWLEC 107: 619, 643 EPA v Orica Australia Pty Ltd (the Ammonium Nitrate Incident) (2014] NSWLEC 109: 619, 643 EPA v Orica Australia Pty Ltd (the Botany Mercury Incident) (2014) NSWLEC 110: 619, 643 EPA v Orica Australia Pty Ltd (the Evaporator Incident) (2014] NSWLEC 104: 619, 642 EPA v Orica Australia Pty Ltd (the Hexavalent Chromium Incident) (2014] NSWLEC 106: 618-619, 640, 642 EPA v Orica Australia Pty Ltd (the Jackhammer Incident) (2014] NSWLEC 105: 619, 642 EPA v Orica Australia Pty Ltd (the Nitric Acid Air Lift Incident) (2014] NSWLEC 103: 604, 619,642 EPA v Pal (2009) NSWLEC 35: 624, 635, 641 EPA v Pannowitz (2005] NSWLEC 175: 642 EPA v Pannowitz (No 2) (2006] NSWLEC 797: 642-643 EPA v Peak Gold Mines Pty Ltd (2013] NSWLEC 158:605 EPA v Perry (2004) 135 LGRA 431: 624 EPA v Pipeline Drillers Group Pty Ltd (2012] NSWLEC 18: 605 EPA v Queanbeyan City Council (2010] NSWLEC 237: 577, 605, 642 EPA v Ramsey Food Processing Pty Ltd (2012) NSWLEC 23: 618 EPA v Ravensworth Operations Pty Ltd (2012] NSWLEC 222: 605 EPA v Shannongrove Pty Ltd (2010] NSWLEC 162: 611 EPA v Shannongrove Pty Ltd (No 2) [2012] NSWLEC 202: 611 EPA v Shell Co of Australia Ltd (2000] NSWLEC 132: 602 EPA v Shoalhaven Starches Pty Ltd (2006] NSWLEC 496: 608 EPA v Sibelco Australia Ltd (2011] NSWLEC 160: 638 EPA v Smart Skip Pty Ltd (2009] NSWLEC 204: 612 EPA v Steepleton Pty Ltd (2006) 164 A Crim R 325:624 EPA v Tea Garden Farms Pty Ltd (2012] NSWLEC 89:605,638 EPA v Terrace Earthmoving Pty Ltd and Page (2012] NSWLEC 216: 610-611

xxxiv TABLE

TABLE OF CASES

OF CASES

EPA v Unomedical Pty Ltd (No 3) (2010] NSWLEC 198: 595, 603, 607, 626, 638 EPA v v Foxman Environmental Development Services (2015] NSWLEC 105: 612 EPA v Warringah Golf Club (2003] NSWLEC 140: 598,642,745 EPA v Warringah Golf Club (No 2) (2003) 129 LGERA 211: 745 EPA v Waste Recycling and Processing Corporation (2006) 148 LGERA 299: 637, 639 EPA v Water Board (1993) 79 LGERA 103: 602-603, 619 EPA v Wattke; EPA v Geerdink (2010] NSWLEC 24:624,635,641 EPA v White (1996) 92 LGERA 263: 641 EPA v Yolarno Pty Ltd (2004] NSWLEC 764 and (2004] NSWLEC 765: 606, 608 Errington v Minister of Health (1935] 1 KB 249: 170 Esposito v Commonwealth (2015] FCAFC 160: 186 Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council (2014] NSWLEC 182: 148, 154 Everall v Ku-ring-gai Municipal Council (1991) 72 LGRA 369: 108 F Hannan Pty Ltd v Electricity Commission of New South Wales (1983) 51 LGRA 353: 153 F and D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) (2008] NSWLEC 235: 55 Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council (2013] NSWLEC 65: 110 Filipowski v Cadem Shipping Pty Ltd (2005] NSWLEC 552: 656 Filipowski v Fratelli D'Amato (2000) 108 LGERA 108:659 Filipowski v Frey (2005] NSWLEC 661: 656 Filipowski v Island Maritime Ltd (2006) 153 LGERA 1: 656 Filipowski v Mediterranean Shipping Co SA (2005] NSWLEC 159: 656 Filipowski v Vopak Terminals Sydney Pty Ltd (2006] NSWLEC 104: 656 Fitch v Shoalhaven City Council (1987) 67 LGRA 165: 112 Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157: 88 Forestry Tasmania v Brown (2007] FCAFC 186: 181, 187, 201, 205 Four2Five Pty Ltd v Ashfield Council (2015] NSWCA 248: 69 Frevcourt Pty Ltd v Wingecarribee Shire Council (2005] NSWCA 107: 123 Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113: 48, 56 Friends of Turramurra Inc v Minister for Planning (2011] NSWLEC 128: 77 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) (2013] NSWLEC 38: 153, 162, 176, 476 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 3) (2013] NSWLEC 152: 55 Gales Holdings Pty Ltd v Tweed Shire Council (2006] NSWLEC 85: 160-161 Gales Holdings Pty Ltd v Minister for Infrastructure and Planning (2006] NSWCA 388:90 Gales Holdings Pty Ltd v Tweed Shire Council (2011] NSWSC 1128: 3, 12-14, 160-161

Gamble v Hoffman (1997) 24 ACSR 369: 800 Gardam v George Wills and Co Ltd (1988) 82 ALR 415:798 Gartner v Kidman (1962) 108 CLR 12: 3 Gerroa Environment Protection Society Inc v Minister for Planning (2008] NSWLEC 173: 483 Gilbank v Bloore (2012] NSWLEC 172: 48 Gillingham C v Medway Dock (1993] QB 343: 3 Given v CV Holland (Holdings) Pty Ltd (1977) 15 ALR439: 798 Gold and Copper Resources Pty Ltd v Hartcher (No 2) (2014] NSWLEC 30: 139, 162 Goldberg v Waverley Council (2007) 156 LGERA 27: 43 Goldberg v Waverley Council (2007] NSWLEC 259: 118,176 Golden Max Pty Ltd v Hurstville City Council (2015] NSWLEC 16: 46 Gosford City Council v Popran Creek Pty Ltd (1995) 89 LGERA 208: 93 GPT RE Ltd v Belmorgan Property Development Pty Ltd (2008] NSWCA 256: 41, 50, 105, 108, 110-113, 175, 177 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540: 8-10 Gray v Macquarie Generation (2010] NSWLEC 34: 5,599,632 Gray v Minister for Planning (2006] NSWLEC 720; 152 LGERA 258: 4-5, 27, 140, 166-168, 206, 473 Greek Australian Finance Corporation v Sydney City Council (1974) 29 LGRA 130: 112 Greenpeace Australia Ltd v Redbank Power Co (1994) 86 LGERA 143: 26 Guideline Drafting and Design v Marrickville Municipal Council (1988) 64 LGRA 275: 84 Guthega Development Pty Ltd v Minister (1987) 7 NSWLR 353: 153, 155, 164 Halsey v Esso Petroleum Co Ltd (1961] 1 WLR 683:3 Hanly v Kleindienst 471 F 2d 823 (1972): 158 Hardt v EPA (2007) 156 LGERA 337: 603, 612 Harris v Harrison [2014] NSWCCA 84: 307 Harrison v Perdikaris (2015] NSWLEC 99: 440 Hasley v Esso Petroleum (1961] 2 All ER 145: 489 Haughton v Minister for Planning and Macquarie Generation (2011] NSWLEC 217; 185 LGERA 373: 137, 141, 474 Hawkesbury City Council v Sammut (2002) 119 LGERA 171: 88 He Kaw Teh v R (1985) 157 CLR 523: 591, 596, 603, 626-627 Helman v Byron Shire Council (1995) 87 LGERA 349:161, 168 Hoare v R (1989) 167 CLR 348: 637, 640 Holpitt Pty Ltd v Swaab (1992) 105 ALR 421: 623 Horticulture Council Inc v Minister of Land and Water Conservation (2002] NSWLEC 213: 320 Hoxton Park Residents Action Group Inc v Liverpool City Council (2010] NSWLEC 242: 145,167 Hoxton Park Residents Action Group Inc v Liverpool City Council (2011] NSWCA 349: 53,110,145

Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) (2012] NSWLEC 43: 50 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) (2015] NSWLEC 125: 127 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2005] FCA 678: 402 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2006] FCAFC 116: 181, 225,402 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2007] FCA 124: 402 Humane Society International Inc v Kyodo Senpaku Kaisha Ltd (2008] FCA 3: 402 Humane Society International Inc v Minister for Environment and Heritage (2003] FCA 64: 202,220 Hunter Development Brokerage Pty Ltd v Cessnock City Council (2005] NSWCA 169: 114 Hunter Environment Lobby Inc v Minister for Planning (2011] NSWLEC 221: 130-131, 487 Hunter Water Board v State Rail Authority of NSW (No 1) (1992) 75 LGRA 15: 626 Huntlee Pty Ltd v Sweetwater Action Group Inc (2011] NSWCA 378: 73, 81, 125 Hurstville City Council v Renaldo Plus 3 Pty Ltd (2006] NSWCA 248: 112-113 Hynes Urban Planners Pty Ltd v Hawkes bury City Council [2003] NSWLEC 1: 156 ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140: 323 IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62: 69 Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27: 123 Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68: 107 Iris Diversified Property Pty Ltd v Randwick City Council (2010) 173 LGERA 240: 86 Iron Gates Development Pty Ltd v RichmondEvans Environmental Society Inc (1992) 81 LGERA 132: 114 Ironlaw Pty Ltd v Wollondilly Shire Council (No 2) (2013] NSWLEC 146: 119 Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd (2011] NSWLEC 195: 39, 484 Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79: 157-159, 167 Jeffman Pty Ltd and Lawrence Dry Cleaners Pty Ltd v EPA; Sydney Water Corporation and Hutchinson (2011] NSWLEC 89: 697 John Williams Neighbourhood Group Inc v Minister for Planning and Murlan Consulting Pty Ltd (2011] NSWLEC 100: 56 Johnson v Kent (1975) 132 CLR 164: 4 Johnson v Lake Macquarie City Council (1996) 91 LGERA 331: 168 Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147: 87, 89 Joly Pty Ltd v Director-General, Dept of Environment, Climate Change and Water (2012] NSWCA 133: 438 Jones v John Lysaght (Aust) Ltd (1983) 51 LGRA 90:601,606

XXXV

Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79: 112 Kand M Prodanovski Pty Ltd v Wollongong City Council (2013] NSWCA 202: 114 Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83: 70 Kavanagh v Baulkham Hills Shire Council (1983) 48 LGRA 370: 94 Kennaway v Thompson (1981] QB 88: 3 Kennedy v Director-General of the Department of Environment and Conservation (No 2) (2007] NSWLEC 271: 55 Kennedy v NSW Minister for Planning [2010] NSWLEC 240: 130, 137, 172 Kennedy v Stockland Development Pty Ltd (No 2) (2011] NSWLEC 10: 56 Kennedy v Stockland Developments Pty Ltd (No 7) (2012] NSWLEC 257: 131 Kent v Johnson, Minister of State for Works (1973) 21 FLR 177: 4 Kerford Developments Pty Ltd v Albury Council [2011] NSWLEC 154: 426 Khreich v Holroyd City Council (2015] NSWLEC 1360:439 Kiama Municipal Council v French (1984) 54 LGRA42: 94 Kidman v Page (1959] Qd R 53: 3 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23: 112-113, 173-175, 177 Kindimindi Investments Pty Ltd v Lane Cove Council (2007] NSWCA 38: 50 King v Great Lakes Shire Council (1986) 58 LGRA 366: 98, 175 Kirk v Industrial Court (NSW) (2010) 239 CLR 531:53, 139 Kivi v Forestry Commission of NSW (1982) 47 LGRA35: 158 Kogarah City Council v Man Ho Wong (2012] NSWLEC 187: 611 Krajniw v Brisbane City Council (No 2) [2011] FCA563: 207 Krajniw v Newman (2014] FCA 1454: 438 Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402: 108 Ku-ring-gai Council v Minister for Planning [2008] NSWLEC 174: 79 Ku-ring-gai Council v Steve Nolan Constructions Pty Ltd (2012] NSWLEC 258: 605 Lainson v Sutherland Shire Council (1998) 108 LGERAl:90 Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225: 121 Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60: 107 Lane Cove Council v Orea Partners Management Pty Ltd (No 2) (2015] NSWLEC 52: 69 Lansen v Minister for Environment and Heritage (2008] FCAFC 189: 173, 181, 209, 213, 217 Latoudis v Casey (1990) 170 CLR 534: 54 Lawrence v Kempsey Shire Council (1995) 87 LGERA 49: 3, 6 Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCA 330: 181, 215-216

TABLE OF CASES

xxxvi TABLE OF CASES Lawyers for Forests Inc v Minister for Environment, Heritage and the Arts [2009] FCAFC 114: 217 Leatch v Director-General of National Parks and Wildlife Service (1993) 81 LGERA 270: 26-27 Leichhardt Council v Minister for Planning (No 2) (1995) 87 LGERA 78: 77 Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61: 112 Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705: 621 Lesnewski v Mosman Municipal Council (2005] NSWCA99:53 Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd (2013] NSWCA 45: 130, 140 Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190: 123 Levenstrath Community Association Inc v Tomies Timber (2000] NSWLEC 95: 156 Lindemans Wines Pty Ltd v Woodward (1981) 46 LGRA 14: 170 Lismore City Council v Ihalainen (2013] NSWLEC 149:586 Lismore City Council v Ihalainen (No 2) [2014] NSWLEC 198: 604 Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265: 159, 167, 176 Lotus Project Management Pty Ltd v Pittwater Council (2015] NSWLEC 166: 70 Maitland City Council v Anambah Homes Pty Ltd (2005] NSWCA 455: 53 Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659: 601-602 Makawe Pty Ltd v Randwick City Council (2009) 171 LGERA 165: 9 Malesev v Strati (2014] NSWLEC 91: 52 Manchester Corporation v Farnworth (1930] AC 171: 5

Manning v Bathurst Regional Council (No 2) (2014] NSWLEC 186: 101 Massachusetts v EPA 127 S Ct 1438 (2007): 5 Masterbuilt Pty Ltd v Hornsby Shire Council (2002] NSWLEC 170: 161 Matthews v Goulburn Wool Processors Pty Ltd (1987) 10 NSWLR 419: 595 Maxwell v Hornsby Council (2002) 121 LGERA 186:156 Maybury v Minister for Planning (1995) 87 LGERA 154: 168 Maygood Australia Pty Ltd v Willoughby City Council (2013] NSWLEC 142: 106 MCC Energy Pty Ltd v Wyong Shire Council (2006] NSWLEC 581: 107, 162 McGovern v Ku-ring-gai Council (2008] NSWCA 209: 99-100, 155, 162, 166, 175 Mees v Minister for the Environment and Heritage [2005] FCAFC 5: 204, 208 Mees v Roads Corporation [2003] FCA 306: 203-204 Melaleuca Estate Pty Ltd v Port Stephens Council 2006) 143 LGERA 319: 12 Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 44 FCR 290: 11-12 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24: 108, 170, 173-174

Minister for Environment and Heritage v Greentree (2003] FCA 857: 224 Minister for Environment and Heritage v Greentree (No 2) [2004] FCA 741: 186, 191, 198, 207, 226 Minister for Environment and Heritage v Greentree (No 3) [2004] FCA 1317: 226 Minister for Environment and Heritage v Queensland Conservation Council Inc (2004) 139 FCR 24: 181, 205, 549 Minister for Environment, Heritage and the Arts v Lamattina [2009] FCA 753: 226 Minister for Environment, Heritage and the Arts v PGP Developments Pty Limited [2010] FCA 58:226 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332: 174 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164: 175 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273: 181 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323: 173 Minister for Planning v Walker [2008] NSWCA 224; 161 LGERA 423: 27, 41, 60, 105, 130, 136, 140,175 Minister for Planning v Walker (No 2) [2008] NSWCA 334: 55 Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378: 73, 81 Minister for Resources and Energy v Gold and Copper Resources Pty Ltd [2015] NSWCA 113:52 Minister for Sustainability, Environment, Water, Population and Communities v De Bono [2012] FCA 643: 227 Mison v Randwick Municipal Council (1991) 73 LGRA 349: 112, 177 Moorebank Recyclers P/L v Benedict Industries P/L [2015] NSWLEC 40: 105, 710 Morrison v Defence Maritime Services Pty Ltd and Coates (2007] NSWLEC 421: 656 Morrison v Mahon [2007] NSWLEC 416: 656 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280: 115 Mouawad v Hills Shire Council [2013] NSWLEC 165: 610, 620-621 Munro v Southern Dairies Ltd (1955] VLR 332: 3, 489 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1: 18 Murrumbidgee Horticulture Council Inc v Minister for Land and Water Conservation: 320 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38: 161,175 National Provincial Bank Ltd v Ainsworth [1965] AC1175: 6 Nature Conservation Council of NSW v The Minister [2005] NSWCA 9: 312 New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303: 108 New South Wales v Commonwealth (2006) 229 CLR 1: 18

Newbury District Council v Secretary of State for the Environment (1981] AC 578: 111, 579 Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48: 157-161, 172 Newcastle Port Corporation v MS Magdalene Schiffahrtsgesellschaft MBH [2013] NSWLEC 210: 657 Newcastle Port Corporation v RN Dredging BV [2013] NSWLEC 217: 657 Nicholls v Director-General of National Parks and Wildlife Service (1994) 84 LGERA 397: 26 No Dump Residents Association Inc v Collex Pty Ltd (2006] NSWCA 94: 57 North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492: 52, 141, 220 North Sydney Council v Ligon 302 Pty Ltd (No 2) (1996) 93 LGERA 23: 84 North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468: 115 North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd {1989) 16 NSWLR 50: 85,88 North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2) (1990) 71 LGRA 222: 69 Northern Inland Council for the Environment Inc v Minister for the Environment (2013] FCA 1419: 207, 215 Notaras v Waverley Council [2007] NSWCA 333: 174-175 NSW Land and Housing Corporation v Campbelltown City Council (2002) 126 LGERA 348: 166 Oshlack v Iron Gates Pty Ltd and Richmond River Council (1997) 130 LGERA 189: 424 Oshlack v Richmond River Council (1998) 193 CLR 72: 54-55 Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1993) 82 LGERA 222: 157-158 Oshlack v Rous Water [2011] NSWLEC 73: 81, 153 Oshlack v Rous Water (No 2) [2012] NSWLEC 111: 153 Oshlack v Rous Water [2013] NSWCA 169: 153 Ostkrowski v Palmer (2004) 218 CLR 493: 627 Owen v Willtara Construction Pty Ltd [1998] NSWLEC 216: 603 Owners - Strata Plan No 885 v Gosford City Council [2010] NSWLEC 106: 43 Pape v Federal Commissioner of Taxation (2009) 238 CLR 1: 19 Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; 179 LGERA 346: 81, 153, 155, 164 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1: 94 Parramatta City Council v Hale (1982) 47 LGRA 319: 40, 56, 108, 173-175 Parramatta City Council v Peterson (1987) 61 LGRA 286: 120 Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231: 107 Payne v Tiwest Pty Ltd [2005] WASC 141: 625 Penrith City Council v Waste Management Authority (1990) 71 LGRA 376: 89, 147

xxxvii

People of the State of California v General Motors Corporation WL 2726871 (ND Cal, 2007): 5 Perre v Apand Pty Ltd (1999) 198 CLR 180: 8 Phosphate Resources Ltd v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1521: 215 Pierce v Minister Administering the Water Management Act 2000 [2012] NSWLEC 33: 45 Pittwater Council v Minister for Planning [2011] NSWLEC 162: 130-131 Plath of the Department of Environment, Climate Change and Water v Lithgow City Council (2011] NSWLEC 8: 28 Plath v Rawson (2009) 170 LGERA 253: 637-639, 641 Plumb v Penrith City Council [2002] NSWLEC 223: 161 Port Stephens Council v Sansom [2007] NSWCA 299:55 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426: 27,105 Potter v Minahan (1908) 7 CLR 277: 10 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155: 153 Precision Products (NSW) Pty Ltd v Hawkesbury City Council [2008] NSWCA 278; 74 NSWLR 102:13,586 Presidential Security Services Pty Ltd v Brilley (2008) 73 NSWLR 241: 621 Presrod Pty Ltd v Wollongong City Council [2010] NSWLEC 192: 46 Prineas v Forestry Commission of NSW (1983) 49 LGRA 402: 159, 166-168 Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 (CA): 159, 167 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355: 40, 140, 312 Proudman v Dayman (1943) 67 CLR 536: 626-627 Providence Projects Pty Ltd v Gosford City Council [2006] NSWLEC 52: 160 Pselletes v Randwick City Council [2009] NSWCA 262: 110 Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575: 10 Pyrenees Shire Council v Day (1998) 192 CLR 330: 8, 10 Queensland Conservation Council Inc v Minister for Environment and Heritage [2003] FCA 1463:181,202,205,549 Queensland v Commonwealth (1989) 167 CLR 232:17 R v Australasian Films Ltd (1921) 29 CLR 195: 621 R v Carroll [2008] NSWCCA 218: 637 R v McNaughton (2006) 66 NSWLR 566: 637 R v Dodd (1991) 57 A Crim R 349: 637 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598: 53, 139 R v Thomson (2000) 49 NSWLR 383: 638 R v Whyte (2002) 55 NSWLR 252: 637 Radray Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292: 100 Randwick City Council v Minister for the Environment [1998] FCA 1376: 40 Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113: 44

xxxviii TABLE

TABLE OF CASES

OF CASES

Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, NSWLEC, Talbot J, No 10649 of 1996, 11 December 1996): 113 Residents Against Improper Development Inc v Chase Property Developments Pty Ltd [2006] NSWCA 323; 149 LGERA 360: 70, 89, 147, 156 Richardson v Forestry Commission (Tas) (1988) 164 CLR 261: 17 Roberts v Blue Mountains City Council [2012] NSWLEC 2: 113 Robson v Leischke (2008) 72 NSWLR 98: 2 Rochford Rural District Council v Port of London Authority [1914] 2 KB 916: 603 Romeo v Conservation Commission (NT) (1998) 192 CLR 431; 151 ALR 263: 10, 625 Rose Consulting Group v Baulkham Hills Shire Council (2003) 129 LGERA 165: 122 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19: 98 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305: 88 Royal Automobile Club of Australia v Council of City of Sydney (1991) 74 LGRA 121: 554 Rundle v Tweed Shire Council (1989) 68 LGRA 308:154 Ryan v Coffs Harbour City Council [2014] NSWLEC 159: 119 Ryan v Minister for Planning [2015] NSWLEC 88: 78,439 Ryde Municipal Council v Royal Rude Homes (1970) 19 LGRA 321: 113 Rylands v Fletcher (1866) LR 1 Ex 265: 7 Save Little Manly Beach Foreshore Inc v Manly Council [2013] NSWLEC 155: 56 Save Little Manly Beach Foreshore Inc v Minister for Planning (No 3) [2015] NSWLEC 77: 77 Save the Ridge Inc v Commonwealth [2004] FCA 1167:225 Save the Ridge Inc v Commonwealth [2005] FCA 17:186 Save the Ridge Inc v National Capital Authority [2004] FCAFC 209: 186 Schaffer Corp Ltd v Hawkesbury City Council (1992) 77 LGRA 21: 167, 170 Schroders Australia Property Management Ltd v Shoalhaven City Council [1999] NSWLEC 251; 110 LGERA 130: 476 Secretary to Department of Sustainability and Environment (Vic) v Minister for Sustainability, Environment, Water, Population and Communities (Cth) [2013] FCA 1: 203 Sedleigh-Denfield v O'Callaghan [1940] AC 880: 2-3 Sevenex Pty Ltd v Blue Mountains City Council [2011] NSWCA 223: 86 Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257: 158 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740: 110 Shannongrove Pty Ltd v EPA [2013] NSWCCA 179: 611 SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122: 154, 159, 162 Shellharbour City Council v Minister for Planning [2011] NSWLEC 59: 52

Sherras v De Rutzen (1985] 1 QB 918: 591 Shire of Perth v O'Keefe (1964) 110 CLR 529: 87 Simpson v Wakool Shire Council [2012] NSWLEC 163: 50, 168-169 Smith v Calsil Ltd (1982) 47 LGRA 132: 606 Smith v Cnizonom Pty Ltd (unreported, NSWLEC, Cripps J, Nos 50011-2/81, 25 March 1982): 606 Smyth v Nambucca Shire Council (1999) 105 LGERA 65: 159 South East Forests Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250: 108 South Sydney City Council v Paul Dainty Corp Pty Ltd (1992) 75 LGRA 202: 93 Southport Corporation v Esso Petroleum Co Ltd (1954] 2 QB 182: 6 SPCC v Australian Iron and Steel Ltd (1992) 74 LGRA 387: 600, 620, 626 SPCC v Blue Mountains City Council (1991) 72 LGRA 345: 600, 620 SPCC v Broken Hill Pty Ltd (No 1) (1991) 74 LGRA 351: 626-627 SPCC v Caltex Refining Co Pty Ltd (unreported, NSWLEC, 50082-84/90, 50098/90 and 50102/90, 10 August 1990): 595 SPCC v Hunt (1990) 72 LGRA 316: 596, 600 SPCC v Kelly (unreported, NSWLEC, Hemmings J, 50190/90, 50191/90 and 50226/90, 26 June 1991): 596, 625 SPCC v Shell Refining (Australia) Pty Ltd (unreported, NSWLEC, Cripps J, Nos 501713/89, 1 July 1990, BC 9003120): 606 SPCC v Tiger Nominees Pty Ltd 1991) 72 LGRA 337: 602-603, 620 Spencer v Commonwealth [2015] FCA 754: 347 St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483: 3 Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 72 LGRA 52: 98 State Rail Authority of NSW v Hunter Water Board (1992) 28 NSWLR 721: 602, 626-627 Steedman v Baulkham Hills Shire Council (1991) 72 LGRA 265: 86, 89 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562: 86, 89 Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123: 121 Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472: 106-107 Stovin v Wise [1996] AC 923: 10 Strathfield Municipal Council v Poynting (2001) 116 LGERA 319: 70 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR468: 17 Sutherland Shire Council v Heyman (1985) 157 CLR 424: 7, 10 Sutherland Shire Council v Pedy Concrete Co Pty Ltd (1992) 77 LGRA 333: 632 Sweetwater Action Group Inc v Minister for Planning [2011] NSWLEC 106: 81 Sydney City Council v Ke Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186: 86 Tarkine National Coalition Inc v Minister for Sustainability, Environment, Water, Population and Communities [2013] FCA 694:215

Tarkine National Coalition Inc v Minister for the Environment [2015] FCAFC 89: 209, 215-216, 218 Tasmanian Conservation Trust Inc v Minister for Resources (1995) 127 ALR 580: 220 Tate and Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509: 6 Teck Corp v Millar 1972 Carswell BC 284; [1973] 2 WWR385:800 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; 146 LGERA 10: 26-27, 49, 60, 105, 108, 143, 172-173, 474 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289: 105, 107 Tesco Supermarkets Ltd v Nattrass (1972] AC 153: 621,625 Teys Australia Southern Pty Ltd v Burns [2015] NSWLEC 1: 105 Thaina Town (On Goulburn) Pty Ltd v City of Sydney [2007] NSWCA 300: 43, 55 Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32: 3 Tiger Nominees Pty Ltd v SPCC (1992) 25 NSWLR 715:601-602,620 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55: 161-162, 176 Toner Design Pty Ltd v Newcastle City Council (2013] NSWCA 410: 156 Tourism Inc v Minister for Fisheries (2000) 106 LGERA 322: 146 Town Watch Inc v Grafton City Council (1997) 93 LGERA 401: 56 Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133: 153, 159, 171, 177 Trives v Hornsby Shire Council [2015] NSWCA 158: 53, 97, 139 True Conservation Association Inc v Minister administering the Threatened Species Conservation Act 1995 [2008) NSWLEC 221: 57 Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396: 41, 140 Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel [2012] NSWLEC 166: 101 Ulan Coal Mines Ltd v Minister for Planning [2008) NSWLEC 185: 131 Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174: 133 Universal Telecasters (Qld) v Guthrie (1978) 32 FLR 360: 625 V'landys v Land and Environment Court of NSW [2012) NSWLEC 218: 45, 106 Vacik Pty Ltd v Penrith City Council (unreported, NSWLEC, Stein J, 24 February 1992): 115 Valley Watch Inc v Minister for Planning (1994) 82 LGERA 209: 170 Valsane Pty Ltd v EPA [1996] NSWLEC 265: 626 Van Son v Forestry Commission of NSW (1995) 86 LGERA 108: 3, 6 Vaughan v Byron Shire Council (No 2) [2009) NSWLEC 110: 368 Vaughn-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366: 147 Veen v R (No 2) (1988) 164 CLR 465: 637 Victoria v Commonwealth (1975) 134 CLR 338: 19

xxxix

Wakool Shire Council v Garrison Cattle Feeders Pty Ltd [2010] NSWLEC 199: 612 Walker v Minister for Planning (2007) 157 LGERA 124: 27-28 Walker Corporation Pty Ltd v Director-General, Department of Environment, Climate Change (2011) NSWCCA 229: 602 Walsh v Ervin [1952] VLR 361: 4 Walsh v Parramatta City Council [2007) NSWLEC 255:173 Waratah Coal Inc v Minister for the Environment Heritage and the Arts [2008] FCA 1870: 207 Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105: 131, 136-137, 174, 439, 474 Warren Shire Council v Kuehne (2012] NSWCA 81:13 Warringah Shire Council v Raffles (1978) 38 LGRA 306: 87-88 Water Administration Ministerial Corporation v Puntoriero (1997) 42 NSWLR 676: 11 Weal v Bathurst City Council (2000) 111 LGERA 181: 108,113,174 Wehbe v Pittwater Council [2007] NSWLEC 827: 68-69 Western Australia Planning Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30: 111 Western Australian Land Authority (Landcorp) v Minister for Sustainability, Environment, Water, Population and Communities [2012) FCA 226: 203, 208 Westfield Developments Pty Ltd v Sutherland Shire Council (1987) 28 APA 376: 90 Westfield Management Ltd v Perpetual Trustee Co Ltd (2006] NSWCA 245: 111 Wide Bay Conservation Council Inc v Burnett Water Pty Ltd [2008] FCA 1900: 181 Wide Bay Conservation Council Inc v Burnett Water Pty Ltd (No 8) [2011) FCA 175: 225 Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2007) FCAFC 175: 51, 181, 201-202, 204,213 Wilderness Society Inc v Minister for the Environment, Heritage and the Arts [2008] FCAFC19: 54 Wildlife Preservation Society of Queensland Proserpine/Whitsunday Branch Inc v Minister for the Environment and Heritage (2006] FCA 736: 206 Williams v Commonwealth (2012) 248 CLR 156 (Williams (No 1)): 19 Williams v Commonwealth (2014) 252 CLR 416 (Williams (No 2)): 19 Williams v Minister for Planning [2009) NSWLEC 5:138 Williams v Minister for Planning (No 2) [2011] NSWLEC 62: 130, 138 Williams v NSW Minister for Planning (No 3) [2010) NSWLEC 204: 173 Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA 232: 70 Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240: 115

xi

TABLE OF CASES

Wollondilly SC v Foxman Environmental Development Services P/L (No 5) [2013] NSWLEC 68: 602-603, 611, 632 Woodward v Cleary Bros (Bombo) Pty Ltd (1984) 54 LGRA 409: 626 Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138: 86 Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123: 86 Woolworths Ltd v Bathurst City Council (1987) 63 LGRA55: 98

Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422: 89, 93, 111, 155 Wyong Shire Council v Shirt (1980) 146 CLR 40: 6 Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739: 35 York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391: 5 Your Water Your Say Inc v Minister for Environment, Heritage and the Arts [2008] FCA 670: 206, 208 Zhang v Canterbury City Council [2001] NSWCA 167; 51 NSWLR 589: 106, 108, 112, 174

TABLE OF STATUTES Constitution s 51: 16 s 5l(i): 18, 714 s 51(ii): 18 s 51(xx): 17, 546, 714 s 51(xxix): 16, 714 s 51(xxxi): 347 s 52: 16 s 61: 22 s 81: 19 s 83: 19 s 90: 16 s 92: 18 s 96: 19 s 109: 16 s 114: 18 s 122: 16, 714 Commonwealth Aboriginal and Torres Strait Islander Heritage Protection Act 1984 s 3: 565-566 s 4: 565 s 7: 565 s 13: 565 ss 19-12: 566 s 13: 565 s 18: 566 ss 20-21: 566 Administrative Appeals Tribunal Act 1975 s 27: 51 Administrative Decisions (Judicial Review) Act 1977:41,219,682 s 3: 51 s5: 51 ss 5-7: 220 s 13: 52,220 s 13A: 220 s 14: 220 Agricultural and Veterinary Chemicals Act 1994: 23, 712, 723, 735-736 Agricultural and Veterinary Chemicals (Administration) Act 1992: 735 s 7: 736 s 7A: 736 s 8: 736 s BA: 736 s 17: 736 Agricultural and Veterinary Chemicals Code Act 1994:714,735 Sch: 735 Code s 10: 737 Code ss 12-13: 737 Code s 14: 738 Code s 15: 738 Code ss 18-21: 738 Code ss 30-32: 738 Code s 34: 738 Code s 34A: 738 Code s 34AA: 738

Code s 34AC: 738 Code s 35A: 739 Code s 36: 738 Code s 38: 738 Code ss 41-42: 739 Code ss 74-83: 740 Code s 87: 740 Code s 99: 740 Code s 108: 736, 739 Code s 118: 739 Code s 120: 739 Code s 121: 740 Code s 123: 739 Code s 126: 739 Code s 127: 740 Code s 130: 740 Code s 131AA: 740 Code s 132: 740 Code s 145A: 740 Code ss 145BA-145BC: 741 Codes 145CC: 740 Code s 145CF: 741 Code s 145CG: 741 Code ss 145DA-145DF: 741 Code s 145F: 741 Code s 162: 738 Code s 167: 741 Code Pt 2: 737 Code Pt 9: 741 Agricultural and Veterinary Chemicals Code Regulations 1995: 737 Sch 4: 748 Airports Act 1996: 200 Australian Energy Market Regulations 2005: 251 Australian Heritage Commission Act 1975: 535-537, 568 s4: 532 Australian Heritage Council Act 2003 s5: 536 s 7: 566 s 21: 568 s 22: 566 Australian Heritage Council Bill 2000: 569 Australian National Registry of Emissions Units Act 2011: 261, 266 Australian Radiation Protection and Nuclear Safety Act 1988 s 13: 755 s 15: 755 s20: 756 s 23: 756 s 26: 756 ss 30-40: 755 Australian Telecommunications Corporation Act 1989 s 27: 36 Avoiding Dangerous Climate Change (Climate Change Trigger) Bill 2005: 183

xiii

TABLE OF STATUTES

TAB LE OF STATUTES

Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth): 261 s 20G: 266 s 22: 263 s 27: 265 s 41: 266 ss 47-48: 265 ss 53-54: 263 s 56: 265 s 60: 265 s 69: 264 s 76: 267 s 106: 264-265 s 123: 264 s 123A: 264 s 133: 264 s 150: 266 s 167: 267 s 306: 262 Pt 2, Div 1: 266 Pt 6: 267 Pt 7: 267 Pt 8, Div 2: 266 Pt 8, Div 3: 266 Pt 9, Div 2: 264 Pt 10: 264 Pt 11: 265 Pt 12: 267 Pt 13: 267 Pts 15-19: 267 Pts 20-24: 268 Pt 26: 264 Pt 27: 268 Carbon Credits (Carbon Farming Initiative) Rule 2015: 263 Carbon Farming Initiative Amendment Act 2014: 269 Carbon Farming Initiative Amendment Bill 2014: 263 C lean Energy Act 2011: 279 s 5: 257 s 14: 256 s 94: 257 s 100: 257 s 101: 257 s 111: 257 s 113: 257 s 122: 257 s 125: 259 s 133: 259 s 135: 259 s 155: 259 ss 177-178: 259 ss 183-202: 259 s 207: 260 ss 221-225: 260 s 227: 260 s 228: 261 ss 230-233: 260 s 248: 260 ss 251-252: 260 s 259: 260 ss 261-263: 260 s 265: 260 ss 267-271: 260 ss 281-283: 261 s 285: 261

s 288: 261 ss 289-293: 261 Pt 21: 261 Clean Energy Legislation (Carbon Tax Repeal) Act 2014: 256 Clean Energy Regulations 2011: 258-259 Clean Energy Regulator Act 2011 s 3: 261 s 17: 261 Clean Energy (Charges-Excise) Act 2011: 259 Clean Energy (Unit Shortfall Charge-General) Act 2011: 259 Climate Change Authority Act 2011: 262 s 3: 262 ss 11-12: 262 ss 16-18: 262 ss 59-60: 262 s 62: 263 ss 64-66: 263 Pt 2, Div 6: 262 Pt 3: 262 Pt 4, Div 4: 263 Coastal Waters (State Powers) Act 1980: 655 Competition and Consumer Act 2010: 302, 704, 798 s 87B: 222 Pt IIIA: 33 Corporate Law Economic Reform Program (Audit Reform and Corporate Disclosure) Act 2004: 795 Corporations Act 2001: 35, 253, 328, 527 s 9: 623 s 299: 795-797 s 299A: 795-797, 799 s 567: 706 s 588FE: 706 s 588G: 706 s 1308A: 797 ss 1013A-1013F: 796 s 1013D: 796-797 s 1013DA: 796 s 1311: 797 P t 9.4: 796 Crimes Ac t 1914 s 4AA: 494, 547 s 4B: 227, 229, 653, 682 Criminal Code s 5.6: 227 Ch 2: 227, 540, 797 C u stoms Act 1901: 441 s 68: 675 s 71A: 675 Customs (Prohibited Exports) Regulations 1965: 737 Customs (Prohibited Imports) Regulations 1956: 729,737 Energy Efficiency Opportunities Act 2006: 276 Environment and Heritage Legislation Amendment Bill (No 2) 2000: 569 Environment Protection and Biodiversity Conservation Act 1999: 17, 21-22, 50, 142, 157, 178-180, 189, 327, 389, 392-393, 408-410, 427, 429, 438, 446, 477, 486, 529, 535-536, 554, 568, 665 s 3: 181, 183, 537, 566 s 3A: 181, 215, 538 s 4: 491,556

s 10: 183, 537 s 11: 538 s 12: 190, 225 s 13: 191,539 s 14: 540 s 15A: 190, 227, 229, 540, 548-549 s 15B: 191, 225, 546-547, 566 s 15C: 191, 227, 229, 546-547, 566 s 16: 191, 225 s 17A: 191 s 17: 191, 496 s 17B: 191, 227, 229 s 18: 192, 225 s ISA: 192, 227, 229 s 20: 192, 225 s 20A: 192,227,229 s 21: 193, 225 s 22: 193 s 22A: 193, 227, 229 s 23: 193-194, 196, 225 ss 23-24A: 495-496 s 24: 406 s 24A: 193-194, 227, 229 s 24B: 225 s 24C: 227 s 24B-24C: 194 s 24D: 225 s 24D-24E: 185, 195 s 24E: 227, 229 s 25: 196, 225 s 25A: 196 s25AA: 221 s 26: 196, 225 s 27: 196 s 27A: 196,227,229,494,546 s 27B: 196, 225, 546 s 27C: 196, 227, 229 s 28: 194, 196, 201, 225 s 28AB: 221 s 29: 185, 195 s 32: 199 s 33: 188, 199 ss 34A-34F: 199, 210 s 35: 199 ss 37A-37B: 190 ss 37C-37H: 190 s 37M: 199 s 38: 201 s42: 201 s 43: 194 s 43A: 187, 197-198 s 43B: 187, 197-198 s 44: 183 s 45: 183, 185, 538 s 46: 184-185, 195 s 47: 184 s 48: 183 s 49A: 185 s 49: 185 5 50: 185 55 51-54: 185 5 58: 186 5 59: 185 5 60: 186 5 65: 185 5 67: 182 5 68: 202

5 68A: 202 5 70: 202 5 72: 200, 203, 213 5 74: 203, 205, 210, 566 5 74A: 186, 203, 214 5 74AA: 203, 227 5 74B: 203, 207 5 74C: 207-208 5 74D: 208 5 75: 200, 202, 204-205, 207-209, 231 5 76: 203-204 5 77: 496, 540 5 77A: 200, 208, 225 5 78: 204, 208 5 78A: 204 55 78A-78C: 208 5 79: 208 5 82: 210 5 83: 209 5 84: 210 5 87: 188, 210, 211 5 88: 210 5 90: 212 5 95: 211 55 95A-95C: 211 55 96A-96B: 211 5 97: 210-211, 216 5 98: 211 55 98-100: 212 55 101A-101B: 211 5 102: 210-211, 216 5103: 211 55 103-105: 212 5 107: 210, 212, 216 55 109-110: 212 55 111-112: 212 55 114-117: 212 55 121-122: 212 5127: 212 5131: 213 5 131A: 213 5131AA: 213 5 131AB: 195, 216-217, 478 5132: 213 5132A: 213 5 133: 213, 219 5 134: 217-219, 222, 225, 228 5135A: 212 5 136: 214-216 5 137: 214 5137A: 214 55 138-140: 214 5139: 215 5140A: 215 5142: 225 5142A: 229 55 142A-142B: 227-228 5 143: 219, 221 55 143-145: 222 5145A: 222 5145B: 219 5146: 188 5146B: 188 5146D: 188 55 146F-146M: 188 55 156A-156B: 214 5156E: 214

xliii

xliv

TABLE OF STATUTES

Environment Protection and Biodiversity Conservation Act 1999 (Cth) (cont) s 158: 201 s 158A: 209, 221 s 160: 200, 496, 540 ss 160-163: 199 s 161: 199 s 161A: 199 ss 162-163: 199 s 164: 200 ss 166-170: 186 s 170BA: 212 s 170C: 202,214 s 171: 394 s 172: 395 s 173: 395 s 176: 190, 395 s 178: 398 ss 177-180: 396 s 181: 398 ss 181-183: 397 s 183: 398, 404 s 186: 396 ss 188-190: 397 s 189A: 397 s 189B: 397 ss 192-193: 396 ss 194D-194G: 398 ss 194J-194N: 398 s 194Q: 398 s 1945: 398 s 195: 400 ss 196-196F: 399 s 197: 399, 401 s 199: 399 ss 200-207: 399 s 207A: 398 ss 207B-207C: 399 s 209: 193,214,400 ss 210-223: 401 ss 211-211F: 401 s 212: 399, 401 ss 224-227: 401 s 228A: 401 ss 229-236: 401 s 229: 402 ss 229A-229D: 401-402 ss 230-232: 402 s 236: 402 ss 237-244: 402 s 238: 402 s 245: 402 s 246: 401 ss 248-252: 403 ss 253-254F: 403 ss 255-256: 403 ss 257-264: 403 s 265: 404 s 266B: 215 s 267: 404 s 268: 405 s 269A: 404 s269AA: 404 s 270: 404 s 270A: 404 s 271: 404 ss 275-276: 404-405

TAB LE O F STATUTES

s 278: 404 ss 278-280: 405 s 283: 404-405 s 283A: 405 s 284: 405 ss 285-288: 405 ss 289-298: 405 s 299: 405 s 301: 405 s 301A: 405 s 302: 406 s 303BAA: 406 s303BA: 406 s 303CA: 406 s 303CB: 406 s 303GJ: 39 s 304: 406, 548 s 305: 407, 548, 566 s 306: 407, 548 s306A: 199 s 307: 407, 548 s 307A: 407 s 308: 407 s 309: 407, 548 s 310: 548 ss 314-315: 540 s 316: 214 s 317: 541 s 319: 541 s 321: 214 ss 321-324: 541 s 323: 537 s 324: 541 s 324C: 541 s 324D: 541-542 s 324H: 544 s324J: 544 s 324JA: 544 ss 324JB-324JC: 544 ss 324JE: 544 ss 324JF-324JJ: 545 ss 324JL-324JN: 545 ss 324JP-324JQ: 545 ss 324JR-324JS: 545 ss 324L-324M: 545 s 3245: 214 s324X: 214 s 324Y: 543 s324Z: 547 s 324ZA: 547 ss 326-327: 496 ss 329-336: 496 ss 329-335: 496 ss 338-339: 497 s 341: 497 s 341C: 196, 541-544 s 341D: 196, 541-542 s 341H: 544 s 341J: 544 s 341JA: 544 s 341JB: 544 s 341JC: 544 s 341JD: 544 ss 341JE-341JI: 545 ss 341JK-341JP: 545 ss 341JQ-341JR: 545 ss 341L-341M: 545

s 3415: 547 s 341Y: 543 s 3412: 547 ss 341ZA-341ZE: 547 s 343: 493 ss 344-351: 493 s 345A: 493 ss 346-347: 492 s 347: 491 s 350: 493 ss 354-355: 494 s 359: 494 s359A: 494 ss 366-370: 494 ss 377-383: 494 ss 390C-390E: 493 s 390K: 545 ss 390L-390N: 546 ss 390P-390Q: 546 s 391: 538 ss 392-399: 494 ss 458-461: 222 s 475: 51, 224, 489 ss 479-480: 224 ss 480A-480C: 224 ss 480D-480F: 223 ss 480J-480N: 223 s 481: 226 ss 483-485: 226 ss 486A-486D: 227 s 486DA: 223 s 486DB: 223 s 487: 37, 51, 220 s 488: 220 s489: 203 ss 489-491: 227, 229 s 493: 228 ss 494-496: 229 ss 496A-496B: 229 ss 496C-496D: 230 s498B: 228 s 499: 218, 230 s 500: 230 ss 502-503: 397 ss 505C-505E: 195, 217 s 514B: 494 s 514D: 494 s 515AA: 194 s 515AB: 194 s 516: 494 s 517A: 200 s 523: 186 s 524: 187, 199 s 524A: 187 s 525: 543 s 527E: 205, 216, 221 s 528: 195-196, 199, 394,494,532, 542, 546, 557, 566 Pt 1, Div 1: 398 Pt 3: 182, 185, 188, 190, 199-200, 202, 204, 206-210, 217, 221-223, 228, 229 Div 1: 478, 539 Pt 4: 496, 540 Pt 7, Div 2: 496, 540 Pt 8: 182, 186, 209-210, 213 Div 3A: 211 Pt 9: 182, 188, 190, 199, 201, 496, 540

xlv

Pt 10: 188, 218 Pt 13: 396 Pt13A: 39 Pt 15: 539-540 Div 1: 538 Div lA: 538, 544-545 Div 3A: 538, 544-545 Pt 17: 494 Ch 2: 395, 538 Ch 4, P t 10, Div 1: 187 Ch 4, Pt 10, Div 2: 187 Ch 5: 395 Ch 5, Pt 15: 541 Environment Protection and Biodiversity Conservation Amendment Act 2013 s 25: 195, 478 Environment Protection and Biodiversity Conservation Regulations 2000: 401, 493, 497, 537,541 reg 2A.03: 190 reg 2.10: 191 reg 3.06: 209 reg 4.03: 203 reg 5.03A: 210-211 reg 6.01: 200 reg 10.01A: 542 reg 10.03A: 542 reg 16.05B: 190 Pt 2: 193 Sch 1: 209 Sch 2: 203 Sch SB: 543 Sch 6: 496 Sch 7B: 543 Sch 7C: 547 Environment Pro tection (Impact of Proposa ls) Act 1974: 18, 178, 231 Env ironment Protection (Sea Dumping) Act 1981: 200 ss 4-5: 665 s 7: 665 s 9: 665 ss lOA-lOE: 665-666 s lOF: 666 s 15: 666 ss 16-17: 667 s 18: 665 s 19: 665-666 ss 20-21: 666 ss 26-27: 667 ss 29-30: 667 s 30A: 667 s33: 667 ss 36-37: 666 s 37A: 667 EPBC Amen dment (Bilateral Agreement Implementation) Bill 2014: 184-185, 195 EPBC Amendment (Standing) Bill 2015: 220 Financial Management and Accountability Act 1977: 293 Financial Services Reform Act 2001: 796 Food Standards Australia New Zealand Act 1991: 712,714,723 Freedom of Information Act 1982: 52, 212 Gene Tech nology Act 2000: 388 ss 3-4: 442 s 74: 441

xlvi

TABLE OF STATUTES

TABLE OF STATUTES

Gene Technology Act 2000 (Cth) (cont) Pt 4: 441 Pt 8: 442 Pt 9, Div 6: 441 Pt 12, Div 2: 442 Great Barrier Reef Marine Park Act 1975: 399 s 37AB: 194 s 61ANA: 228 Hazardous Waste (Regulation of Exports and Imports) Act 1989: 22, 200, 676 s 3: 678 s 4: 678-679 s4A: 679 s 4B: 679 s 4E: 680 s 13A: 679 s 13C: 680 s 13D: 681 s 17: 679-680 s 18A: 680 s 34: 681 ss 35-35A: 681 ss 36-38: 681 ss 39-40A: 682 s 40B: 682 s 58A: 682 Pt 3: 681 Hazardous Waste (Regulation of Exports and Imports) Amendment Bill 1995: 680 Hazardous Waste (Regulation of Exports and Imports) Amendment (Hexachlorobenzene) Regulation 2014: 680 Hazardous Waste (Regulation of Exports and Imports) (Imports from East Timor) Regulations 2003: 681 Hazardous Waste (Regulation of Exports and Imports) (OECD Decision) Regulations 1996: 681 Hazardous Waste (Regulation of Exports and Imports) (Fees) Regulations 1990: 679 Hazardous Waste (Regulation of Exports and Imports) Regulations 1996: 679 reg5A: 680 Hazardous Waste (Regulation of Exports and Imports) (Waigani Convention) Regulations 1999:681 Historic Shipwrecks Act 1976 s 5: 559 s 7: 559 s 9: 559 s 12: 559 s 15: 559 Imported Food Control Act 1992: 441 Income Tax Assessment Act 1997: 407 Industrial Chemicals (Notification and Assessment) Act 1989: 23, 713 ss 3-4: 714 ss 11-12: 714 s 14: 715 s 15AA: 714-715 s 15AB: 715 s 18: 715 s 18A: 715 s 19: 715 s 21: 715-716 ss 21A-21P: 715 s 21AA: 716

s 21J: 716 s 21L: 716 s 21M: 714 ss 21Q-21ZB: 715 s 21U: 715 s 21W: 715-716 s 21ZA: 716 s 22A-22O: 715 s 22F: 715 s 221: 716 s 22J: 715 s 22N: 716 s 23: 715-716 s 23A: 716 ss 30-32: 716 ss 33-34: 717 s 33A: 716 ss 36-38: 717 s 40: 717 ss 40K-40N: 716 s 41: 713 ss 44-45: 718 s 48: 719 ss 50A-50B: 719 s 51: 719-720 ss 55-57: 719 s 58: 719-720 ss 60B-60C: 720 ss 60E-60F: 720 ss 61-62: 720 s 64: 718 s 68: 718 s 68A: 718 s 75: 717,720 s 76: 720 s 79: 720 ss 80A-80W: 720 ss 80B-80C: 720 s 80H: 720 ss 80J-80K: 720 s81: 720 s81A: 720 s82: 720 s 83: 715,720 s83A: 720 ss 86-89: 720 s lO0E: 720-721 s 100H: 721 ss lO0J-lO0K: 721 s 101: 718 Sch, Pts A-E: 716 Industrial Chemicals (Notification and Assessment) Amendment (Inventory) Act 2011:714 Industrial Chemicals (Notification and Assessment) Regulations 1990: 713 Judiciary Act 1903 s 39B: 220 Landholders' Right to Refuse (Gas and Coal) Bill 2013:448 Murray-Darling Basin Act 1993: 290 s 9: 288 Murray-Darling Basin Agreement: 288 cl 8: 299 cll 11-13: 299 ell 13-18: 300 Pt IV: 299

Pt XII: 290 Sch 1, Sch D: 298-299, 320 Sch 1, Sch E: 299 National Environment Protection Council Act 1994:21 55 6-7: 571 55 8-9: 570 s 12: 570 s 14: 571 ss 16-19: 571 s 21: 571 ss 23-24: 571 s 28: 571 National Greenhouse and Energy Reporting Act 2007:253,255,261,269 s 11: 254 s 13: 254 ss 54-55: 254 ss 76A-76B: 262 National Greenhouse and Energy Reporting Regulations 2008: 255 reg 2.14: 254 reg 2.23: 254 National Greenhouse and Energy Reporting Amendment (2015 Measures No 2) Regulation 2015: 269 National Greenhouse and Energy Reporting (Audit) Amendment Determination 2015 (No 1): 269 National Greenhouse and Energy Reporting (Safeguard Mechanism) Rule 2015: 269 National Transport Commission (Model Legislation - Transport of Dangerous Goods by Road or Rail) Regulations 2007: 750 Native Title Act 1993: 306 s 253: 506 Natural Resources Management (Financial Assistance) Act 1992: 347 Natural Heritage Trust of Australia Act 1997: 347 Navigation Act 1912: 651 Offshore Minerals Act 1994: 446 Offshore Petroleum Act 2006 s 521: 278 s 592: 278 s 606: 278 s 617: 278 s 654: 278 Pt3.2: 277 Pts 3.3-3.4: 277 Pts 3.4: 278 Pts 3.6-3.7: 278 Pt8.l: 278 Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Act 1995: 729 Ozone Protection and Synthetic Greenhouse Gas (Import Levy) Regulations 2004: 729 Ozone Protection and Synthetic Greenhouse Gas ManagementAct1989: 23,593, 728 s 3: 729 s 4: 729 s 7: 730 s 8: 732 s SA: 730 s SC: 730 s SD: 730 s 9: 730 s 12B: 730

xlvii

s 13: 732-733 s 13A: 730 s 16: 730 s 18: 730 s 19A: 730 55 23-25: 730 ss 27-28: 731 s 34: 731 s 38: 731-733 s 40: 733 s 45A: 731 s 46: 730 s48: 730 s 56: 732 ss 57-58: 733 s 62: 732 s 65AA: 732 s 65AB: 733 s 65AC: 733 s 65AF: 733 s 65AH: 733 s 65AJ: 733 s 65AK: 733 s 65AM: 733 s 68: 730 Pt III: 730 Pt IV: 731 Pt VIIIA: 731 Pt VIII, Div 1: 732 Sch 1, Pts 1-2: 734 Sch 4: 731, 733 Ozone Protection and Synthetic Greenhouse Gas Management Regulations 1995: 729, 734 reg 100: 731 regs 111-113: 731 regs 200-245: 732 reg 313: 732 reg 321: 732 Pt 6A: 731 Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Act 1995: 729 Ozone Protection and Synthetic Greenhouse Gas (Manufacture Levy) Regulations 2004: 729 Petroleum (Submerged Lands) Act 1967: 277 Product Stewardship Act 2011: 685 55 4-5: 671 s 42: 674 s 51: 674 s 55: 674 s 58: 674 s 60: 674 ss 62-64: 674 s 66: 674 Pt 2: 671 Pt 3: 672, 675 Pt 4: 673 Pt 5: 676 Pt 7: 674 Pt 8: 675 Product Stewardship Regulation 2012: 672 Product Stewardship (Televisions and Computers) Regulations 2011 reg 2.02: 675 reg 3.01: 675 reg 3.04: 675 reg 3.06: 675

xlviii

TABLE OF STATUTES

TABLE OF STATUTES

Protection of Movable Cultural Heritage Act 1986 (Cth) s 8: 558 s 17: 566 Protection of Movable Cultural Heritage Regulations 1987 Sch 1: 558 Sch 1.3: 566 Protection of the Sea (Civil Liability) Act 1981: 662 Protection of the Sea (Prevention of Pollution from Ships) Act 1983 s 6: 651 ss 9- 10: 652-653 s 11: 653 s llA: 654 s 12: 654 s 14A: 652 s 21: 652-653 s 22: 653 s 22A: 654 s23: 654 s 26AB: 652-653 s 26B: 653 s 26BC: 652-653 s 26D: 652-653 s26DAA: 652 s 26F: 652-653 s 26FA: 654 s 26FC: 652-653 s 26FD: 652 s 26FEG: 652-653 s 26FEH: 653 s26FEJ: 654 s 26FEW: 652, 654 s 27: 654 s 27A: 655 s 29: 655 ss 28-29: 655 Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994: 651 Quarantine Act 1908: 441 Regional Forests Agreements Act 2002: 201 Renewable Energy (Electricity) Act 2000: 261, 270 s 9: 272 ss 13-14: 272 s 16: 272 s 17: 272-273 s 18: 272 ss 20-22: 272 s 23A: 272 s23AAA: 272 s 23B: 273 s 23F: 273 s 24: 273, 276 s 24A: 276 s 24B: 276 s 25: 273 s 25A: 273 ss 26-27: 273 s 28A: 273 s 29: 273 ss 30-30A: 272 ss 30D-30G: 272 s 30M: 273 s 30P: 273 ss 32-33: 274 s 35: 274

s 36: 274 s 38: 274 s38A: 275 s 38B: 274-275 s 38C: 275 s 38AE: 274 s 39: 274 s40: 271 s40A: 274 s 46: 275 s 154B: 273, 276 ss 154R-154S: 276 s 162: 262, 276 Pt 5: 275 Pt 11: 275 Renewable Energy (Electricity) Amendment Act 2006:273 Renewable Energy (Electricity) Amendment Act 2015:271 Renewable Energy (Electricity) Amendment Bill 2015:275 Renewable Energy (Electricity) (Large-scale Generation Shortfall Charge) Act 2000: 274 Renewable Energy (Electricity) Regulations 2001 reg3A: 272 regs 6-10: 272 regs 13-18: 272 reg 19D: 272-273 reg 20G: 273 reg 22ZA: 275 Renewable Energy (Electricity) (Small-scale Technology Shortfall Charge) Act 2010: 274 Sea Installations Act 1987: 200 Sydney Harbour Federation Trust Act 2001 ss 6-7: 560 s 31: 560 s37: 560 s 57: 560 s 66: 561 Pt 5: 560 Telecommunications Act 1997 Sch 3, cl 28: 202 Therapeutic Goods Act 1989: 712, 714, 723 Trade Practices Act 1974 s 52: 704 s 82: 704 s 85: 625 ss 87B-87C: 222 Pt IV: 33 Water Act 2007: 29, 284, 287-290, 298, 329 s 4: 195 s 21: 294 s43A: 296 s 47A: 296 s 74A: 301 s 75: 301 s 81: 301 ss 86D-86F: 290 s 97: 302 s lOOA: 302 s 105: 293 s 173: 293 s 204: 292 Div 2: 294 Pt2A: 295 Pt 4, Div 1: 301-302 Pt4A: 302

Pts 9-10: 292 PtlOA: 290 Sch 1: 290, 320 Sch 1, Sch B: 302 Sch 1, Sch E: 293 Sch lA: 303 Sch3A: 301 Water Act Amendment Bill 2008: 290 Water Amendment Act 2008: 284, 287 Water Amendment Act 2015: 298 Water Amendment Bill 2008 Sch 1, Sch F: 290 Water Efficiency Labelling Scheme Act 2005: 305, 335 Pt4:304 Water Efficiency Labelling and Standards Regulations 2005: 304 Water Market Rules 2009: 329 World Heritage Properties Conservation Act 1983: 17

New South Wales Aboriginal Land Rights Act 1983: 43, 504-505 s 4: 567 Agricultural and Veterinary Chemicals (New South Wales) Act 1994 ss 5-6: 737 Annual Reports (Departments) Act 1985: 557 Annual Reports (Statutory Bodies) Act 1984: 557 Building Professionals Act 2005: 118 Carbon Rights Legislation Amendment Act 1998: 33 Catchment Management Act 2003: 306, 345, 349, 357 Catchment Management Authorities Act 2003: 351,425 ss 14-15: 352 Sch 1: 351 Civil and Administrative Tribunal Act 2013: 332 Civil Liability Act 2002 s 40: 13 s 42-43: 13-14 s 43A: 13-14 ss 44-46: 14-15 s 46: 15 Pt 5: 12 Civil Procedure Act 2005: 47 s 26: 47 s 56: 46 s 149B: 45 Div 1, Pt 6: 46 Clean Air Act 1961: 591 Clean Air (Plant and Equipment) Regulation 1997 Clean Waters Act 1970: 591, 595, 620 s 16: 602, 604, 627 Clean Waters Regulations 1972: 575 Clyde Waste Transfer Terminal (Special Provisions) Act 2003: 89 Coal Acquisition Act 1981: 447 Coastal Management Act 1979: 345 Coastal Management Bill 2015: 67, 379 ss 27-28: 380 ss 30-33: 380 Pts 2-5: 380 Coastal Protection Act 1979: 44, 368-369, 381-382, 468 s 1: 371

xlix

s 3: 371-372 s4: 372 ss 4A-4B: 372 s 5: 371 ss 6-7: 372 s 10: 372 s 12: 372 s 37: 373 s 37A: 372 ss 38-39: 373 ss 40-45: 373 ss 48-50: 373 ss 51-52: 374 s 55: 374, 377 ss 55B-55H: 374 s 55J: 374 ss 55K-55M: 375 s 55N: 376 s 55P: 376-377 s 55R: 377 s 55Y: 376-377 s 55ZA: 377 s 55ZB: 377 s 55ZC: 377 s 55ZE: 377 s 56A: 378 s 56B: 378 s 59: 379 Pt 2: 372 Pt2A: 372 Pt 3: 132 Pt4A: 373 Pt 4C: 376 Div 2: 377 Ch 7: 372 Coastal Protection and Other Legislation Amendment Bill 2010: 373 Coastal Protection Regulation 2011: 378-379 Commercial Arbitration Act 1984: 340 Companies (New South Wales) Code s30: 562 s 34: 562 s 36: 562 s 556: 623 Contaminated Land Management Act 1997: 44, 572, 586, 629, 692 s 5: 692 s 6: 692-693 s 7: 693 s 8: 694 s 9: 693 s 10: 695-696, 707 s 11: 694-695 s 12: 694 s 13: 696 s 14: 696-698, 705, 707 s 15: 696-697 s 16: 697 s 17: 698 s 28: 698, 705, 707 s 29: 699 ss 30-32: 699 s 33: 700 s33A: 700 s34: 701 s35: 701 s 36: 700

TABLE OF STATUTES

Contaminated Land Management Act 1997 (NSW) (cont) s 37: 701 s 38: 700 ss 39-42: 701 s 45: 699 s 46: 709 ss 47-57: 703 s 53B: 703-704, 707 s 53C: 704 s 53D: 704 s54: 704 s57: 704 s 58: 702 s 59: 703 s 60: 701-702, 705, 708-709 s 61: 697 s 63: 705-706 ss 64-65: 706 ss 78-80: 706 ss 81-90: 707 ss 91-92: 708 s 92A: 708 ss 93A-93B: 708 s 95: 708 ss 96-97: 708 s 98: 705 s 98A: 705 s 98B: 705 s 103: 707-708 s 107: 703 s 111A: 699-700 Pt 3, Div 6A: 696 Pt 4: 697, 703 Contaminated Land Management Amendment Bill 2008: 695, 699 Contaminated Land Management Regulation 2013:692 cl 4: 701 cl 10: 701 Sch 1: 708 Conveyancing Act 1919: 33 s 4B: 94 s37: 562 s 87A: 562 s 88D: 562 s88E: 699 Crimes (Local Courts Appeal and Review) Act 2001 s 31: 45 s 32: 45 s 42: 45 s 43: 45 Crimes (Sentencing Procedure) Act 1999 s 3A: 637-638 s 8: 639-640 s 9: 307 ss 10-12: 640 s 21A: 636-638 s 22: 638 Criminal Procedure Act 1986 Pt 5, Ch 4: 44 Crown Lands Act 1989: 372, 376 Cumberland Oval (Amendment) Act 1983: 56 Dangerous Goods (Road and Rail Transport) Act 2008:751 ss 6-9: 751, 753

TABLE OF STATUTES

s 10: 753 ss 11-12: 754 s 23: 752 ss 26-27: 752 s 28: 753 s 30: 753 ss 32-34: 753 s 36: 753 s40: 753 s 42: 753 ss 47-48: 754 ss 51-58: 755 s 68: 755 Electricity Supply Act 1995 s 34A: 281 s 106: 279 s 119: 279 Pt8A: 279 Pt9:279 Sch 5: 279 Electricity Supply Amendment (Energy Saving Scheme) Act 2015: 279 Electricity Supply (General) Regulation 2014: 279 Encroachment of Buildings Act 1922: 43 Energy Administration Act 1987: 335 Energy Administration Amendment (Water and Energy Savings) Act 2005: 335 Energy and Utilities Administration Act 1987: 335 Pt6A: 335 Energy Savings Scheme Rule of 2009 cl 2: 279 cl 3: 279 cl 5.3: 279 cl 7: 279 Electricity Supply Amendment (Greenhouse Gas Emission Reduction) Act 2003: 279 Electricity Supply (General) Amendment (Greenhouse Gas Abatement Certificate Scheme) Regulation 2003: 279 Electricity Supply General Regulation 2001 cl 104L: 281 Environmental Offences and Penalties Act 1989: 595 sS: 596 s 6: 596 s 7: 600 Environmental Planning and Assessment Act 1979:44 s 4: 68, 80, 92-93, 95, 98, 123, 147, 155, 158-159 s 5: 59, 69, 104, 594 s SA: 107, 150, 160-161, 172,428 s5D: 159 s 23: 126, 130, 135-136 s23B: 126 s 23D: 64, 126-127, 170 s 23E: 126 s 23F: 127, 134, 170 s 23G: 64, 127-128, 170 s 231: 104, 170 s 23N: 102 s 230: 102, 128 s 24: 60 s 26: 65, 82, 93, 423 s 28: 82, 138, 521 s 33A: 74-75, 82 s33B: 66 s 34A: 73

s 35: 53, 90 s 36: 63, 80-81 s 37: 67, 81 s 38: 73 s 53: 73 s 53A: 64, 73 s 54: 73-74, 77, 80, 144 s 55: 74, 77, 80, 144 s 56: 74-75, 78, 80, 129, 144 s 57: 75, 79-80 s 58: 75, 77-78 s 59: 75-77 s 60: 75 s 65: 77 s 66: 77 s 68: 77 s 71: 83 s 73A: 66, 76 s 74: 79 s 74B: 83 s 74BA: 83 s 74C: 83-84 s 74D: 84 s 75AI: 74, 80 s 75AK: 90 s 75W: 138 s 75X: 40 s 76: 85, 92, 145, 147 s 76A: 85, 92, 96, 145 s 76B: 85, 92 s 77A: 95, 120, 155, 157 s 78: 482 s 78A: 98-99, 129, 150, 155, 157, 159, 163, 165, 468 s 79: 78, 100-101, 155, 168, 171 s 79A: 101, 159, 168 s 79B: 102-103, 115, 132, 150, 171-172, 424, 483, 513 s 79BA: 103 s 79C: 27-28, 50, 60, 104-108, 111-113, 115, 130, 150, 152, 172-174, 358, 468, 472-474, 483, 563-564 s 80: 108-109, 111, 118, 131, 477, 488 s BOA: 111-113, 375 s 81: 109 s 82: 108 s 82A: 118-119 s 83: 133-134 s 83B: 100, 164 s 83C: 164 s 84A: 96 s 85: 96 s 85A: 96, 145 s86A: 97 s 87: 97 s 88: 97 s 89A: 98 s 89: 97-98 s 89C: 72, 128-129, 467 s 89D: 93, 130 s 89E: 128-129, 131, 171 s 89F: 130, 168, 171, 467, 477 s 89H: 130, 152, 468, 483 s 891: 132, 436 s 89J: 132-133, 373, 467, 477, 483 s 89K: 133, 466, 468, 477, 483, 580 s 91: 96, 99, 580 s 91A: 103, 580 s 93: 103,110

s 93C: 120-121 s 93E: 121, 123 s 93F: 117, 124-125, 468 s 93H: 125 s 931: 124 s 94: 111, 114, 120-125 s 94A: 111, 121-122, 124-125 s 94B: 122 s 94C: 120 s 94CA: 120 s 94E: 120, 122 s 94EA: 122 s94EAA: 122 ss 94ED-94EF: 124 s 94EF: 124 s 94EL: 124 s 94F: 111, 123 s 95: 109, 113-114, 131 s 95A: 114, 119 s 96: 115,131 s96AA:115 s96AB: 118 s 96A: 115, 119 s 97: 39, 42, 50, 119, 133-134, 155 s 97AA: 119 s 97A: 119 s 98: 39, 119-120, 133-134, 155, 488-489 s 98A: 119 s 101: 52-53, 63, 110, 139 s 102: 40 s 105A: 160 s 106: 85-87, 89 s 107: 86 s 108: 86 s 109: 86, 92, 147 s 109B: 87 s 109C: 116-117 s 109D: 117 ss 109F-109H: 116 s 109F: 117 s 109H: 117 s 109J: 117 s 109K: 119 ss 109M-109N: 117 s 1090: 113 s 109R: 138 s 110: 146-148, 470, 475 s UOA: 148 s U0E: 146, 148, 154-155, 171 s 111: 150-155, 163, 171, 476 s 111A: 148 s 112: 150, 154, 157, 159, 162-163, 165, 171, 410, 475-476 s 112B: 172 s 112C: 150, 171-172 s 112D: 172 s 112E: 172 s 113: 168-169, 176 s 114: 169 s 11ST: 134 s USU: 128, 134-135, 149 s 115V: 135, 149 s 115W: 93, 134, 136, 149 s llSY: 135-136, 157, 165 s 1152: 136, 169, 171 s USZA: 136 s USZB: 136-137, 171

Ii

Iii

TA BLE O F STATUTES

TABLE OF STATUTES

Environmental Planning and Assessment Act 1979 (NSW) (cont) s llSZC: 137 s llSZD: 135, 164 s llSZE: 135 s llSZF: 135, 138-139, 159 s llSZG: 135, 138-139, 585 s llSZH: 138, 580 s llSZI: 137-138, 171 s llSZJ: 40, 139-140 s llSZK: 135, 140-141 s llSZL: 136-138 s 117: 66, 79, 83, 90, 563 s 118: 78-79 s 118AG: 53-54, 79 s 1218: 139, 382 ss 122B-122C: 177 s 122F: 177 s 123: 41, 134, 140-141, 176, 424, 489 s 126: 360 s 1261: 150 s 127K: 434 s 145B: 709 s 147: 126 s 148B: 176 s 149: 378, 703 s 149F: 119 s 153: 110 Pt 2A, Div 4: 104 Pt3:76-79,82,138,469 Div 2: 72 Div 4: 73-74, 77 Div4B: 129 Pt 3A: 27-28, 40, 55, 74, 94, 125-128, 130-138, 140-141, 145, 164, 168, 382, 417, 419, 473, 710 Pt 3B: 66-67, 80, 90 Pt 4: 60, 78, 91-94, 98, 125-126, 128, 130-134, 137-139, 142, 145-147, 149-152, 154, 157, 159, 163-165, 168, 170-172, 176-177, 333,418, 423-424, 426, 435, 466-467, 482, 580 Div 2A: 109 Div 3: 97, 116 Div 4: 78 Div 4.1: 91 Div 5: 65 Div 6: 112, 120, 122, 138 Div 10: 86 Pt 4A: 113, 116 Pt4.1: 477 Pt 5: 4, 91-92, 94, 134-136, 138-139, 142, 145, 147-154, 157-159, 162-166, 168-169, 171, 171-172, 176-177, 333, 417-419, 423-424, 426,435,467, 470,475 Div 5: 146 Pt 5.1: 91, 126, 128, 134-136, 138-141, 145, 147, 150-151, 157, 164, 168, 171-172, 176 Pt 6: 83 Div lAA: 54, 64 Div 2A: 139, 147 Div 2B: 177 Pt7A: 709 Sch 3: 580 Pt 2: 126 cll 4-5: 126 cl 10: 126

Sch4 cl 2: 128 cl 9: 128 Sch4A cl 2: 127, 170 cl 3: 127, 170 ell 4-11: 127 Sch SA: 124 Sch 6: 119 cl 93: 83 cl 120: 66 cl 121: 66 cl 123: 66 Pt8A: 510 Environmental Planning and Assessment Amendment Act 2008: 64, 144 Sch 1.4: 564 Environmental Planning and Assessment Amendment Act 2014: 61 Environmental Planning and Assessment Amendment (Building Sustainability Index (BASIX)) Regulation 2004: 99, 280 Environmental Planning and Assessment Amendment (Development Consents) Act 2010:114 Environmental P lanning and Assessment Amendment (Part 3A Repeal) Act 2011: 127 Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011: 125, 127, 129 Environmental Planning and Assessment Regulation 2000: 280 cl 2A: 99 cl 3A: 93 cl 4: 95 cl 5: 96, 168 cl 8: 370 cl 9: 73 cl lOA: 76 cl 11: 74 cl 15: 80 cl 18: 84 cl 19: 84 cl 21: 84 cl 22: 84 cl 24: 84 cl 25: 84 cl 25AA: 84 ell 25D-25H: 125 cl 251-K: 121 cl 27: 122 ell 28-31: 122 cl 41-45: 86 cl 49: 98 cl SOA: 464-465, 477 cl 51: 162 cl 54: 162 cl 55: 98, 100 cl 56: 100 ell 66-67: 103 cl 70: 103 cl 83: 130 cl SSA: 130, 169 cl 85B: 130 ell 87-89: 101 ell 90-91: 101 cl 92: 370

ell 92-93: 108 cl 95: 113 cl 98E: 111 cl 100: 52, 110 cl 102: 110 cll 106-112: 109 cl 107: 109 cll 109-111: 109 cl 112: 109 cl 113: 108-109 cl 122A: 115 cl 124: 53 cl 124F: 129 ell 130-131: 97 cl 130AA: 97 cl 130AB: 97 cl 136B: 97 cl 136D: 97 cll 145-146: 117 cl 146: 118 cl 161: 113 cl 191: 134 cl 196: 136 cl 198: 138 cl 243: 169 cl 227AA: 147 cl 228: 154, 157 cl 243: 169 cl 268P: 126 cl 268R: 127, 170 cl 268X: 104 cl 275: 72 cl 276: 72 cl 277: 148 Ptl Sch 1: 99 Sch 3: 89, 95, Pt 3: 84 Pt4 Div lC: 122 Div 2: 122 Pt 5: 86 Pt 6, Div 5: 155, 168 Div 7: 101, 168 Div8A: 111 Sch 1 cl 2: 99-100, 107, 163 cl 2A: 99 Ptl: 99 Pt 1, cl 2: 164 Pt 1, cl 2A: 164 Sch 2: 475 cl 2: 129 cl 3: 165, 466-467, 477 cl 7: 164-165, 483 Pt 3: 136, 164 Sch 3: 155, 157, 688, 709 cl 27: 466 cl 33: 156 cl 35: 95, 157 cl 36: 95, 157 cl 37A: 89, 95, 156 Sch 4: 339 Environmental Trust Act 1998: 572 s6:710 s 7: 711 s 12: 711

liii

s 16: 711 s 19: 710 Environmentally Ha zardous Chemicals Act 1985: 44,572,713,722,737 s 3: 722-724 ss 6-7: 722 s 9: 722 s 10: 722, 727 s 11: 723 s 12: 722 s 13: 722, 724 s 15: 722, 724 s 16: 724 s 17: 723 s 18: 724 s 19: 723 s 20: 723 s 22: 724 s 23: 724-725 s 24: 724-725 s 25: 725 s 26: 726 ss 28-30: 725 s 29A: 725 s31: 725 s 32: 725-726 s37: 725 s38: 725 s39: 726 s42: 725 s 52: 726-727 s53: 726 s53A: 726 s54: 726 Environmentally Hazardous Chemicals Regulation 2008: 722 cl 11: 727 cl 13: 723 Fertilisers Act 1985: 609, 690 Fisheries Management Act 1994: 146, 154, 159, 172, 503,507 s 34C: 437 s 37: 437 s 144: 96, 133 s 200IA: 437 s 201: 96, 132 s 205: 96, 132 s 219: 96, 132 s 220G: 436 s 220ZVB: 437 s220ZW: 437 s 2218: 148 s 2210: 437 s 221V: 437 s 229: 437 Pt 7A: 151, 161, 414,426,436 Div 7: 139 Pt 9, Divs 1-4: 515 FoodAct2003: 441 Forest and National Parks Estate Act 1998 s 9: 502 Forestry Act 2012: 460, 503, 509, 525 s 16: 427, 516 Forestry Restructuring and Native Conservation Act 1995: 711 Gene Technology (New South Wales) Act 2003: 442

liv

TABLE OF STATUTES

TABLE OF STATUTES

Gene Technology (GM Crop Moratorium) Act 2003 (NSW): 442 s 7: 442 s 7A: 442 55 13-14: 442 s 23: 442 s 35: 461 s 43: 442 Gene Technology (GM Crop Moratorium) Amendment (Postponement of Expiry) Bill 2011: 442 Government Information (Public Access) Act 2009:52 Government Sector Employment Act 2013: 62 Greater Sydney Commission Act 2015: 64, 66, 80, 93 Growth Centres (Development Corporations) Act 1974: 120 Heritage Act 1977: 44, 529, 560, 562-563, 567, 569 s 4: 532, 550, 558 s 4A: 550-551 s 5: 556 s 7: 550 s 8: 551 ss 21-22: 551 55 24-26: 552 55 28-30: 552 55 32-34: 536, 551-552 55 36-38: 552 s 38A: 554 s 39: 551, 554 s40: 554 s 44: 554 s 48: 559 s 49: 536, 551, 559 s 51: 559 55 56-57: 553 s 58: 96 s 61: 553 s 63: 553 s 68: 553 s 70A: 553 s 71: 553 s 76: 553 s 78: 553 s 79C: 556 s 102: 555 s 103: 555 s 105A: 555 s 106: 551 s 108: 555 s 112: 555 s 115:555 55 118-120: 555 ss 120A-120B: 555 s 120F: 555 s 120H: 555 s 120K: 555 s 1201: 555 s 120M: 551 s 121: 555-556 s 129: 554 s 136: 133, 139, 556 s 137A: 556 s 139: 132, 467, 559 s 154: 556 s 155: 556

s 167: 551 s 170: 536, 556 s 170A: 557 Pt3B: 554 Pt 3C: 559 Pt 4: 131 Pt 4, Div 2: 553 Div 4: 553 Pt 5: 564 Pt 6: 554 Div 6: 555 Heritage Amendment Act 1988: 550 Heritage Regulation 2012 cl 9: 554 cl 22: 556 Pt 3: 555 Historic Houses Act 1980 55 5-8: 561 s 10: 561 Hunter Water Act 1991: 582 Independent Commission Against Corruption Act 1988: 57 Irrigation Corporatisation Act 1994: 328 Land Acquisition (Just Terms Compensation) Act 1991:502 Land and Environment Court Act 1979 s 5: 42 s 12: 42 s 16: 45 s 17: 42 ss 18-19: 42-43 s 20: 43-44, 89,141,589 s 21: 44 s 21A: 45, 50 ss 21A-21C: 45 s 21B: 45, 50 s 21C: 45, 488 s 23: 488 s 25A: 50 s 25B: 161 s33: 118 s 34: 46 s 34AA: 45-46 s 34A: 47 s 36: 43 s 37: 43-44 s 38: 43 s 39: 43, 69, 119 s39A: 488 s 41A: 45 s42: 45 s43: 45 s 56A: 43, 45, 55 s 58: 43-44 s 63: 48-49 s 71: 44 Pt 3, Div 3: 49, 168 Pt5A: 47 Div 3: 50 Land and Environment Court Rules 2007 r 3.7: 55 r 4.2: 55-56 r4.3: 52 r 7.7: 48 Legal Profession Uniform Law (NSW) s 6: 42

Local Government Act 1919 s 309: 62 Pt XI: 62 Pt XIIA: 1, 62-63, 65-66, 85 Local Government Act 1993: 8, 11, 42, 44, 59, 98, 563,572,582 s4: 94 s 24: 690 ss 35-36: 517 ss 36A-40: 517 ss 45-46: 517 s 68: 338, 584 s 124: 139, 710 s 125: 4 s 377: 562, 564 s 496: 690 s496B: 377 s501: 584 s 694: 632 s 722: 11 s 733: 11-12 Ch 6, Pt 2, Div 1: 78 Local Government (General) Regulation 2005: 582 ell 25-26: 584 ell 28-30: 584 cl 32: 584 ell 36-38: 584 cl 41: 584 Local Government (Town and Country Planning) Amendment Act 1945: 1 Local Government (Town and Country Planning) Amendment Act 1962: 63 Local Land Services Act 2013: 311, 345, 349, 362 s 3: 353 s 4: 353 s 9: 352 s 11: 353 s 14: 350, 354 ss 23-24: 355 s 27: 353 s 29: 354 s 33: 354 ss 37-39: 354 s 41: 355 s44: 355 55 46-48: 355 s 50: 355 s 54: 355 s 210: 425 Sch 1: 353 Pt 6: 517 Marine Estate Management Act 2014: 507 s 3: 380,513 s 6: 512 s7:513 s 8: 513 ss 9-10: 514 ss 12-13: 514 ss 18-20: 514 ss 22-23: 514 s 23: 515 s 25: 515 s 33: 514 ss 34-35: 515 55 37-38: 515 s 39: 514 s 43: 514

Iv

ss 47-48: 514 55 54-55: 513 s 57: 514 s 62: 514 s 63: 516 ss 66-67: 515 ss 70-73: 516 Marine Estate Management (Management Rules) Regulation 1999 cl 1.7: 559 Divs 2-3: 515 Marine Estate Management Regulation 2009: 515 Marine Parks Act 1997: 147 Marine Pollution Act 1987 s 8: 656-657 s BA: 656 Marine Pollution Act 2012: 572, 651 s 3: 655,658 s 5: 660 s 14: 455 ss 15-17: 656 s 18: 658 s 19: 657 s 20: 658 s 21: 658 ss 23-25: 658 s 26: 657 ss 29-31: 656 s 32: 658 s 33: 657 ss 34- 39: 658 s 40: 658 s 41: 658 ss 45-47: 656 s48: 657 s49: 657 ss 53-55: 656 s56: 658 s 57: 657 ss 60-62: 656 s 63: 658 s 64: 657 ss 65-66: 658 ss 68-72: 658 ss 68-74: 659 ss 75-77: 658 s 78: 659 ss 81-82: 659 ss 86-90: 661 s 95: 662 ss 99-100: 662 s 107: 662 s 113: 662 s 124: 662 s 135: 662 s 174: 662 ss 174-175: 663 s 176: 662 s 177: 663 ss 183-189: 655 ss 183-184: 660 ss 185-187: 661 s 188: 660 ss 193-194: 660 55 196-197: 660 s 201: 660 ss 203-204: 660

lvi

TABLE O F STATUTES

TABLE OF STATUTES

Marine Pollution Act 2012 (NSW) (cont) ss 205-209: 661 ss 216-217: 661 ss 218-219: 659 s 221: 661 s 225: 661 s 228: 663 ss 230-231: 663 s 233: 663 ss 235-236: 663 Marine Pollution Regulation 2014: 651 cl 62: 655 Mine Subsidence Compensation Act 1961 s 15: 96,133 Mining Act 1992: 45, 433, 447, 455, 457-468, 482, 487, 503, 513 sS: 448,451 ss 5-6: 458 s 13: 452 s 13A: 452 ss 13-14: 452 s 15: 454 s 24: 448 s29: 448 s 31: 462 s 33: 452 s33A: 452 s 37: 452 ss 38-40: 454 s 41: 460 s 42: 448 s 49: 462 s51: 452 ss 51-52: 453 s58: 452 s 62: 462 s 63: 452 ss 63-64: 96 s 65: 466 s 68: 448 ss 125-126: 458 s 128: 458 s 137A: 459 ss 139-140: 449 s 140: 448 s 141: 448 ss 141-153: 449 s 155: 449 s 165: 462 s 188: 462 s 191: 448 s 204: 458 s 234: 458 ss 237-239: 458 s 240: 458-459 s 240C: 459 s 241: 459 ss 246M-246X: 458 ss 262-264: 450 s 273: 458 s 293: 45, 449, 488 s 296: 488 s 298: 488 s367: 459 s 368: 452 s378A: 459 s 378C: 459

s378D: 459 s 378FA: 459 s 378F: 459 s378K: 459 s 380A: 133, 458 s 380AA: 466, 477 Div 1, Pt 3: 452 Div 1, Pt 5: 453 Pt 3: Divs 2-5: 454 Pts 3-5: 452 Pt12A: 458 Pt12:459 Pt 17A: 44,459 cl 14: 448 ell 20-21: 453 ell: 22-23A: 453 ell 22-23: 461 cl 24: 453 ell 26-28: 453 Sch 2: 461 Dictionary: 460, 462 Mining and Petroleum Legislation Amendment Act 2014: 458 Mining and Petroleum Legislation Amendment (Coal and Petroleum Prospecting Titles) Act 2015:452 Mining and Petroleum Legislation Amendment (Grant of Coal and Petroleum Prospecting Titles) Bill 2015: 457 Mining and Petroleum Legislation Amendment (Harmonisation) Bill 2015: 457, 459 Mining and Petroleum Legislation Amendment (Land Access) Act 2010: 461 Mining and Petroleum Legislation Amendment (Land Access Arbitration) Bill 2015: 450, 457 Mining Legislation Amendment (Uranium Exploration) Act 2012: 446 Mining Regulation 2010: 453 cl 15: 452 cl 21: 452 Miscellaneous Acts Amendment (Director's Liability) Act 2012: 622, 705 National Electricity (New South Wales) Act 1997: 251 National Environment Protection Council (New South Wales) Act 1995: 570 National Park Estate (Southern Region Reservations) Act 2000 s 8: 502 National Parks and Wildlife Act 1974: 44, 133, 135, 147, 154, 408, 423, 425, 427, 429, 461, 466, 477, 497 s 2A: 26, 28, 418, 499-500, 514, 554, 557, 560, 743 s 3: 491 s 5: 500-501, 521, 567 s 6: 506 s 7: 500,507 s 8: 507 s 9: 507 s 11: 506 ss 16-17: 507 ss 19-20: 507 ss 23-25: 507 s 28: 507 s 30: 460 ss 30A-30B: 502 s 30D: 460

ss 30E-30H: 500, 557 s30G: 502 ss 30G-30J: 501 s 30!: 501 ss 30J-30K: 500, 557 s 30K: 502 s 35: 502 s 37: 460, 502 s 39: 460, 502 s 40: 503 s 41: 460, 503 ss 42-44: 503 s 45: 510-511 s 47D: 502 ss 47GB-47GG: 507 s 47H: 460, 502 s 471: 503 s 47J: 460, 503, 510 s 47K: 503 s 47N: 460 ss 47S-47YT: 507 s47Z: 503 s 47ZA: 460, 502-503, 510 s 49: 502-503 s52: 502 s 53: 503 ss 54-55: 503 s 54: 460 s 56: 510-511 s 57: 510, 525 s 58: 460, 502-503 s 58M: 502 s 58N: 503 s 580: 460 ss 580-58P: 503 ss 58Q-58R: 510 s 585: 460, 502-503 s 59: 518 s 61: 500, 503-504 s 62: 502, 503-504 s 63: 504 s 64: 460 s 65: 500, 504 s 68: 504 ss 68-69: 500 ss 69B-69C: 520 ss 69C-69G: 521 s 69H: 520 s 69I-69J: 521 s69KA:521 s 70: 510-511 s 71: 510 s 71AD: 505 s 71AE: 505 ss 71AH-71AI: 505 ss 71AM-71AN: 506 ss 71AS-71AU: 506 s 71AW: 504 s 71BH: 506 s 71BI: 506 s 71BJ: 506 s 71BM:504 s 71C: 504 ss 71F-71G: 505 s 71!: 505 s 71K: 505 ss 71N-710: 505

s 71V: 505 s 71Y: 505 s 72: 504, 508, 521 s 72A: 509 s 72AA: 509 ss 73A-73B: 509 s 81: 508 ss 83-84: 567 s 85: 567 s SSA: 567 ss 86-87: 567 s 88: 568 s 89A: 568 s 90: 96, 132, 467, 567 s 91A: 520 s91AA:511 s 91B: 520 s91BB: 511 s 91C: 520 s91CC:511 s 91D: 520 s 91E: 520 s 91EE: 511 s 91F: 520 s 91G: 520 s 91H: 520 s 91!: 520 s 91FF: 511 ss 91K-91L: 511 ss 93-94: 521 ss 96-97: 521 s 98: 132, 522 s 99: 522 s 99A: 522 ss 100-103: 522 s 104: 523 s 105: 523 s 105A: 523 ss 106-108: 523 s 110: 523, 744 s 111: 523 s 112: 523 ss 112A-112G: 524 s 114: 524 s USA: 525 s 116: 525 ss 117-118: 526 s 118A: 28, 132, 410, 417-418 s 118C: 132, 419 s 118D: 132, 420 s 118G:420 s 120: 148, 420, 522-524 s 121: 522-523 s 123: 522-523 s 125: 460 s 125A: 522 ss 126-127: 523 s 129: 523 s 131: 417, 525-526 s 132: 417, 525-526 s 132A: 417, 525-526 s 132C: 148, 417, 522-525 s 133: 525 ss 137-139: 508 ss 142-143: 508 ss 145-146: 502 s 148: 519

lvii

!viii

TABLE OF STATUTES

National Parks and Wildlife Act 1974 (NSW) (cont) s 151: 509 s 151A: 509-510 s 151B: 509 s 151C: 510 s 151D: 510 ss 151A-151B: 509 ss 152-153: 510 ss 153B-153O: 510 s 156A: 132 s 156B: 507 ss 157-158: 507 s 159: 511 s 160: 508 ss 160A-160B: 508 s 164: 508 ss 169-170: 507 s 176: 416 s 176A: 416 s 188C: 460 s 189: 416 s 193: 416 s 203: 460 Pt 4A: 504-505 Pt 6: 558 Pt6A Div 1: 139 Div 3: 139 Pt 7A: 523 Pt 8A: 416, 420 Pt 9, Div 2: 522 Sch 8A: 524 Sch 11: 521 Sch 14: 504-506 Sch 15: 510 National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010: 499 National Parks and Wildlife Regulation 2009: 524 cl 99: 567 National Trust of Australia (New South Wales) Act 1990 s 4: 561 s 8: 561 ss 10-11: 561 s 14: 562 s 17: 562 s 22: 562 s 26: 561 s 30: 562 ss 34-36: 562 Sch 1, cl 2: 561 Native Vegetation Act 2003: 44, 150, 306, 345 ss 6-11: 357 s 12: 132, 468 s 29: 360 s 41: 489 Pt 2: 357 Native Vegetation Regulation 2005: 357 Native Vegetation Regulation 2013: 359-360 ell 37-42: 357 Native Vegetation Conservation Act 1997: 198, 347, 356,360 Natural Resources Act 2003 s 6: 411 Natural Resources Commission Act 2003: 306, 345, 357, 425 s5: 349

TABLE OF STATUTES

12-13: 412 13-14: 350 Nature Conservation Trust Act 2001: 461, 521 Noise Control Act 1975: 591 Offshore Minerals Act 1999: 446, 503, 513 Ozone Protection Act 1989: 733 s 3: 734 55 14-15: 734 55 21-22: 734 Pt2:734 Sch 1: 593, 734 Ozone Protection Regulation 1997: 734 PEO Amendment (Enforcement of Gas and Other Petroleum Legislation) Act 2015: 627, 630, 633 PEO Amendment (Illegal Waste Disposal) Act 2013: 612-613 PEO Amendment (Scheduled Activities and Waste) Regulation 2008: 574 Pesticides Act 1999: 44, 609, 737, 741 s 3: 742 s4: 743 s 5: 742 s5A: 742 55 7-9: 743, 745 55 10-11: 743-744 55 12-16: 744 s 17: 748 55 19-26: 742 55 28-31: 742 55 38-39: 747 s 41: 747 s 42: 747 s45: 742 55 45-53: 742 55 56-62: 748 55 64-65: 747 55 69-70: 748 55 72-73: 745 s 75: 746 s 78: 746 s 94: 745 55 95-97: 746 s 98: 745 s 99: 745-746 s 100: 746 55 108-109: 745 s 112: 746-747 s 112A: 746-747 s 112B: 746 55 115-117: 742 Pesticides Regulation 2009: 737, 748 cl 5: 742 cl 6: 742 cl 9: 749 cl BM: 749 cl 10: 749 ell 13-17: 749 cl 19: 749 cl 25: 749-750 cl 26: 750 ell 28-29: 750 Petroleum (Onshore) Act 1991: 45, 433, 457, 503, 513,572,585 s 6: 448 s 7: 448, 451, 454, 458 s 9: 96, 459, 463 s 22: 458 55

55

s 24: 133 s 24A: 458 s 29: 448 s 42: 454, 466 s 43: 455 s 67: 466 s 69C: 448-449 s 69D: 448 ss 69D-69G: 449 s 69L: 449 s 69N: 449 s 69R: 449 s 70: 460 55 71-72: 462 55 74-76: 458 55 77-78: 459 s 107: 450 s 109: 450 s 112: 450 s 115: 458, 488 s 133: 459 s 135: 459 s 136A: 459 s 137A: 459 Pt 3: 454 PtlOA: 458 Pt 14: 459 Petroleum (Onshore) Amendment (NSW Gas Plan) Act 2014: 456 Petroleum (Onshore) Regulation 2007: 454 Petroleum (Submerged Lands) Act 1982: 513 Pipelines Act 1967: 133 Planning Appeals Legislation Amendment Act 2010: 119 Planning Bill 2013: 61 Planning Administration Bill 2013: 61 Pollution Control Act 1970: 591 Ports and Maritime Administration Act 1995: 574, 655 s 103: 663 Ports Corporatisation and Waterways Management Act 1995 Private Irrigation Districts Act 1973: 329 Protection of the Environment Administration Act1991: 572,693 s 6: 35, 372, 511, 573 s 7: 577 s 10: 645 Protection of the Environment Amendment (NSW Gas Plan) Regulation 2014: 576 Protection of the Environment (General) Amendment (Licensing Fees) Regulation 2014: 578 Protection of the Environment Legislation Amendment Act 2011: 572, 616, 618 Protection of the Environment Legislation Amendment Act 2014: 696, 708 Protection of the Environment Operations Act 199~38,44,95,332,378,382,468,500,507, 572,635,658,660 s 3: 573 s 5: 620 s 6: 105, 574, 576 s 7: 655 s 10: 575 55 10-11: 574 s 13: 575

55 16-18: 575 s 20: 575 s 29: 575 55 36-38: 575 s 43: 96, 133, 576 s 44: 576 s 45: 577, 646 s 47: 96, 576, 600 55 47-49: 619 s 48: 96, 576, 600 s 49: 576, 600 s 50: 580-581 s 55: 96,577 s 58: 581 s 61: 576, 578 s 63: 578 s 64: 600, 619 s 66: 578-579 s 67: 578 s 68: 578-580 s 69: 578, 646 s 70: 578-579, 708 55 71-72: 578, 708 55 74-76: 578 s 77: 576 55 77-79: 581 s 78: 133 s 80: 582 s 82: 582 s 83: 577 s 86: 585, 590, 619 s 87: 688 s 88: 687 s 90: 585 s 91: 585, 600, 619 55 91-93: 586 s 95: 628 55 95-96: 587 55 96-99: 588 s 97: 585, 600, 619 s 98: 588 55 101-105: 588 s 102: 585, 600, 619 s 103: 588 s 104: 585 55 105-107: 589 s 107: 589 s 109: 585 55 111-112: 585 s 114: 600, 627 55 115-117: 592-593 s 115: 5, 594, 596, 599, 632, 641, 691 s 116: 596-599, 642 s 117: 596, 734 s 118: 599-600, 625, 682, 691 s 119: 592, 691 s 120: 584, 600, 602-605, 613, 627, 632 s 122: 96, 576-577, 605 s 123: 601 55 124-1350: 600 55 124-129: 606 s 126: 606 s 128: 606 s 129: 608 s 131: 606 s 132: 601 55 133-134: 608

lix

Ix

TABLE OF STATUTES

Protection of the Environment Operations Act 1997 (NSW) (cont) s 135A: 590 s 135B: 585, 590 s 135C: 590, 619 ss 136-141: 600 s 136A: 459 ss 136-140: 615 s 141: 601 s 142A: 610, 613, 632 ss 142A-142E: 600, 609 s 143: 610-611, 613, 620, 625, 642-643 ss 143-144: 603, 632 s 143-144AC: 600 s 143: 609 s 144: 599, 612-613 s 144AA: 612-613 s 144A: 614 s 144AB: 613 s 144AC: 613 s 145: 613 s 146: 614 ss 146A-146C: 614 s 146E: 614 s 147: 617 s 148: 616-618 s 150: 617 s 151: 617 s 151A: 617 s 152: 618 s 153C: 618 s 153F: 618 s 161: 585, 590, 619 s 167: 606, 619 s 169: 622, 624-625, 682 s 169A: 622, 705 s 169B: 623, 705 s 172: 628 s 173: 629 ss 174-175: 628 ss 176-183: 629 ss 180-183: 629 s 186: 747 s 187: 629 s 191: 580 ss 191-193: 631 s 195: 631 s 196: 630 s 197: 585 s 198: 630 s 198A: 615 s 199: 630 ss 200-203: 630 s 203A: 630 s 204: 630 ss 205-210: 630 s 210B: 630 ss 210B-210E: 613 s 211: 600, 630 s 212: 631 s 212A: 631 s 212B: 631 s 212C: 629 s 212E: 631 s 213: 683, 726, 734 s 215: 632 s 217: 631

TABLE OF STATUTES

s 218: 631-632 s 218A: 632 ss 219-220: 632 s 222: 627 ss 223-225: 628 ss 227-228: 628 s 233: 643 ss 234-240: 643 s 241: 636-637, 745 s 243: 640 s245: 641 ss 246-248: 642 ss 246-247: 643 s 249: 641 s 250: 641-642 s 250: 605 s 252: 632-633 ss 252-253: 140, 489 s 253: 582, 633 s 253A: 633-634, 708 s 257: 621 s 263: 574, 589 s 264: 574, 585, 589 s 265: 585, 589, 619 s 267: 589 s 267B: 589 s 268: 616 s 270: 616 s 275: 574 ss 275-277: 590 ss 278-279: 591 ss 281-282: 591 s 287: 39, 577 s 289: 588 s 292: 43 ss 293-295ZA: 578 s 295B: 646 s 2950: 647-648 s 295Q-295T: 648 s 295U: 649 ss 295Y-295ZA: 579 ss 296-307: 578-579 s 296: 649 ss 298-300: 649 ss 303-304: 649 ss 306-307: 649 s 308: 576, 645 s 309: 645 s 319A: 372 s 320: 645 Pt 5.7: 616 Pt5.7A: 618 Pt 7.2: 747 Pt 8.3: 641 Pt9.2: 43 Pt9.3: 577 Pt9.3A: 646 Pt9.3D: 619 Pt9.4: 696 Ch 2: 575 Ch 3: 133, 477 Ch 4: 139 Ch 8: 683, 726 Sch 1: 573, 577, 580, 599, 612, 688 cl 18: 689 cl 34: 689 ell 39-40: 688

ell 41-42: 689 cl 47: 689 cl 48: 688-689 cl 49: 686 Pt 2: 576 Sch 2A: 585 Dictionary: 573-574, 586, 590, 593, 595, 601, 603-604,606,608-610,616 Protection of the Environment Operations Amendment Act 2005: 572 Protection of the Environment Operations Amendment (Enforcement of Gas and Other Petroleum Legislation) Bill 2015: 457 Protection of the Environment Operations Amendment (Tradeable Emission Schemes) Act2000:33 Protection of the Environment Operations Bill 1996:576 Protection of the Environment Operations (Clean Air) Regulation 2010: 645 Pts 2-6: 607 Schs 2-4: 607 Sch 6: 607 Protection of the Environment Operations (General) Regulation 2009: 576, 646 cl 56: 603 ell 62-71: 645 cl 81: 628 cl 83: 628 ell 85-90: 574 cl 90A: 574 ell 91-93: 574 cl 99: 585 cl 104: 648 cl 105: 649 cl 106: 645 cl 109: 609 Ch 3, Pt 1: 603 Ch 6: 627 Pt 1: 578 Sch 1: 578 Sch 5: 604 Sch 6: 627-628 Protection of the Environment Operations (Hunter River Salinity Trading) Regulation 2002: 646-647 Protection of the Environment Operations (Noise Control) Regulation 2008 ell 50-53: 615 Protection of the Environment Operations (Waste) Regulation 2014: 682-683 cl 6: 594 cl 62: 691 ell 86-88: 686 cl 111: 609 cl 114: 609 Pt2:687 Pt 4: 688, 690 Pt 8: 686 Sch 1, Pts 1-3: 677, 689 Protection of the Environment Operations (Waste) Amendment (Used Packaging Materials) Regulation 2006: 685 Public Health Act 2010: 338, 341 Pt 3 Div 1: 332 Public Finance and Audit Act 1983: 562 Public Works and Procurement Act 1912: 374

lxi

Radiation Control Act 1990: 756 s 3: 756 s5A: 756 ss 6-8: 757 s 9: 758 ss 10-13: 758 s 13A: 758 ss 13B-13C: 759 s 14: 759 s 14A: 759 s 14B: 760 ss 15-16: 761 ss 18-19: 762 s 21: 762 s 22: 760 s 23: 760, 763 s 23A: 763 s 24: 763 s 24A: 763-764 s 25: 763 s 25A: 764 s 25B: 765 s 250: 763 s 27: 763 s28: 765 ss 28C-28E: 765 ss 28G-28H: 765 s 28K: 765 ss 29-30: 756 s33A: 763 s36A: 764 s36B: 763 s 38A: 760 s 39: 760 s 39A: 765 Pt 2A: 759 Pt3A: 765 Radiation Control Amendment Act 2010: 756 Radiation Control Regulation 2013: 756 ell 8-11: 760 cl 12: 757 cl 25: 760 ell 26-42: 761 cl 46: 761 Sch 2: 761 Sch 3: 760 Sch 7: 764 Redfern-Waterloo Authority Act 2004 s 29: 555 Rivers and Foreshores Improvement Act 1948: 356 Roads Act 1993 s 138: 96, 133 Road and Rail Transport (Dangerous Goods) (Road) Regulation 2014 cl 3: 752 cl 11: 751 cl 20: 752 ell 22-23: 752 ell 32-34: 751 Pts 3-13: 752 Pt 16: 752 Pts 18-20: 752 Rural Fires Act 1997: 419 s 96: 148 s 100B: 96, 132, 468 Rural Fires Amendment (Vegetation Clearing) Act 2014: 364

lxii

TABLE OF STATUTES

Soil Conservation Act 1938 (NSW): 356, 503 South Pacific Nuclear Free Zone Treaty Act 1986: 755 State Emergency and Rescue Management Act 1989: 417, 419 State Emergency Service Act 1989: 417, 419 State Owned Corporations Act 1989: 147, 330-331 s 8: 35 s 20E: 35 s 37A: 147 State Water Corporation Act 2004: 328 Swimming Pools Act 1992: 118 Sydney Water Act 1994: 584 s 21: 330, 582 s 22: 330-331 s 23: 582 s 34: 332 s 49: 582 s 103: 332 Sydney Water Catchment Management Act 1998: 331-332 Threatened Species Conservation Act 1995: 44, 102, 133, 149, 159, 161, 172, 346, 361, 408, 416, 429, 432, 437-439, 477, 482, 507, 743 s 4A: 151, 425 s SA: 151, 426 ss 6-7: 410 s 9: 411 s 10: 409-410 ss 11-13: 411 ss 10-15: 421 s 17: 410 ss 18-19: 412 s 21: 412 ss 23-24: 412 s 25A: 412 ss 37-39: 412 55 40-44: 413 55 46-51: 413 s 56: 410, 413 s 74: 410, 414 s 74A: 414 s 75: 414 55 77-82: 414 55 84-87: 415 s 90A: 415 s 90B: 415 s 91: 420 s 94: 421 s 94A: 420, 424 s 95: 417, 419 s 96: 421 s 97: 421 s 99: 148, 422 s 101: 422 ss 105-106: 422 s 110: 165-166 s 111: 166 s 113: 424 s 113B: 148 s 114: 422 s 121: 422 s 126: 422 ss 126B-126E: 425 s 126E: 351 s 126G: 57, 426

TABLE OF STATUTES

s 1261: 426 s 126J: 426, s 126K: 144, 426 s 1261: 144 s 126N: 426 s 1260: 144, 425 s 126P: 426 s 126R: 425 s 126S: 426 s 126V: 426 s 126Y: 427 s 1262: 427 ss 126ZA-126ZC: 428 ss 126ZD-126ZF: 427 s 126ZH: 427 ss 126ZJ-126ZL: 428 s 12620: 428 s 126ZP: 428 s 126ZR: 428 s 126ZS: 428 s 127A: 433 ss 127D-127U: 433 s 127E: 433 ss 127G-127L: 434 s 127N: 434 s 1270: 434 s 127P: 434 ss 127V-127ZI: 151 ss 127V-127Y: 434 ss 127Z-127ZC: 435 ss 127ZD-127ZF: 435 s 127ZI: 435 s 127ZJ: 151 s 127ZK: 152 ss 127ZJ-127ZS: 435 s 127ZL: 151-152 ss 127ZO-127ZP: 151,436 s 127ZZ: 434-435 s 128: 410 s 140: 408-409 55 141B-141C: 423 s 147: 422 s 381A: 461 Div 6: 436 Pt SA: 415 Pt 6: 417-420, 522, 524-525 Div 2: 99 Pt 7: 72, 417, 419, 522, 525 Div 1: 139 Div 4: 425 Div 5: 426 Pt 7AA: 144, 150, 425-426 Pt 7A: 154,433, 436 Div 2: 433 Divs 2-3: 151 Div 7: 132 Pt 8: 524 Sch lA: 410 Sch 2: 410 Sch 3: 249, 410 Sch 7, Pt 8, ell 24-25: 426 cl 26: 426 Threatened Species Conservation Amendment (Biodiversity Banking) Act 2006: 432 Threatened Species Conservation Amendment (Special Provisions) Act 2008: 57, 72

Threatened Species Conservation (Biodiversity Banking) Regulation 2008: 433 cll 11-18: 433 cl 18: 434 ell 19-21: 434 cll 21-25: 435 ell 45-50: 436 Threatened Species Conservation Regulation 2002:411 Threatened Species Conservation Regulation 2010 Pts 2-5: 411 Transport Administration Act 1988 s 104N: 574 Trees (Disputes Between Neighbours) Act 2006: 42-43, 49 Trustee Act 1925: 562 Uniform Civil Procedure Rules 2005: 47 r 28.2: 43 r 31.19: 48 r42.21: 56 r42.4: 55 r 59.9: 52 r 59.10: 44 r 59.11: 56 Pt 59: 44 Waste Avoidance and Resource Recovery Act 2001:572,577 s 3: 683 s 12: 684 s 14: 684 ss 15-18: 685 s 26: 683 Pt4:685 Waste Minimisation and Management Act 1995: 592 Waste Recycling and Processing Corporation Act 2001:683 Waste Recycling and Processing Corporation (Authorised Transaction) Act 2010: 683 Water Act 1912: 306, 324, 480 Pt 5: 481 Water Administration Act 1986 s 19: 11 Water (Commonwealth Powers) Act 2008: 306, 323 Water Efficiency Labelling and Standards (New South Wales) Act 2005: 304, 335 Water Industry Competition Act 2006: 332, 336 s 2A: 337 55 7-11: 338 s 19B: 339 s 20B: 339 s 20C: 339 s 20E: 339 s 20F: 339 s 20L: 339 s 23: 340 s 55: 342 Pt 2: 337-338 Pt 3: 339-340 Pt4:340 Pt 5, Div 3: 340 Pt 6: 340 Pt 7: 340 Pt 8: 340 Water Industry Competition Amendment (Review) Act 2014: 336

lxiii

Water Industry Competition (General) Regulation 2008:337 ell 14-16: 342 ell 18-19: 342 cl 28: 344 ell 30-31: 344 Pt 2, Div 1: 340 Pt 3: 342-343 Pt 4, ell 25-27: 343 Sch 1, Pts 1-3: 341 Sch 2, Pts 1-3: 342 Water Legislation Amendment (Drinking Water and Corporate Structure) Act 1998: 331 Water Management Act 2000: 306, 333, 346, 351, 354, 477, 582 s3: 308 s 4: 303,481 ss 5-7: 308 s 8: 309,312 s 8A: 309 ss 8B-8E: 309 ss 8B-8D: 310 s 15: 311 s 20: 311, 320 s35: 312 ss 36-41: 311 s 43A: 313, 322 55 45-46: 314 s 47: 312 s49A: 314 s 50: 311 s52: 307 55 52-54: 306 s 56: 315, 334 s57: 317 s 58: 317, 320-321, 334 s 60: 317, 334 s 60A: 480 ss 60A-60C: 315 s 60F: 316 s 60G: 316-317 s 60H: 315 s 60I: 326, 480 s 63: 481 s 65: 315, 322 s 68A: 315 55 69-70: 317 s 71: 321 s 71J: 321 ss 71M-71N: 319 ss 71L-71Z: 319 s 71NA: 319 s 71S: 319 ss 71U-71W: 320 s 712: 311, 320 s 78: 322 s 79: 322 s 81A: 322 s 85B: 326 s 87: 322-323 s 87AA: 314,323,351 s 87AB: 323 s 87C: 315 s 88A: 481 ss 89-91: 96, 132, 324, 468 s 91F: 481 s 91K: 307

lxiv

TABLE OF STATUTES

TABLE OF STATUTES

Water Management Act 2000 (NSW) (cont) ss 91A-91D: 324 ss 91E-91M: 325 ss 100-103: 324 ss 107-109: 324 s 123: 328 s 142: 329 ss 148-149: 329 s 176: 329 s 182: 329 s 223: 329 s 227: 329 s 232: 329 ss 241-244: 330 s 323: 322 ss 324-336: 325 s 336A: 325 s 336B: 307 ss 353B-353D: 326 s353F: 326 s 353G: 307 s 363A: 316 s 363B: 316 s 364: 316 s 364A: 316 s365A: 316 s367: 326 ss 367A-367B: 326 s 389A: 310, 352 s 392: 306 s 393: 306 s 398: 11 s 400: 317 Ch 2, Pt 5: 321 Ch 3, Pt 2: 309 Ch 3, Pt 2, Div 1: 315 Ch 3, Pt 2, Div lA: 315 Ch 3, Pt 3, Div lA: 324 Ch 4, Pt 1: 328 Ch 4, Pt 2: 329 Pt 2: 311, 315 Pt 3: 310 Dictionary: 481 Water Management Amendment Act 2004: 306 Water Management Amendment Act 2005: 309 Water Management Amendment Act 2008: 306, 481 Water Management Amendment Act 2014: 316, 319 Water Management (Amendment) Act 2010: 326, 329 Water Management (General) Amendment (Aquifer Interference) Regulation 2011: 326 Water Management (General) Amendment (Value of Water Illegally Taken) Regulation 2015: 317 Water Management (General) Regulation 2011: 306 cl 18: 315, 326 cl32:324 cl 36: 324 cl 39: 324 Sch 5, Pt 1, cl 18: 480 Sch 7, cl 27: 326 Water Management General Regulation 2004: 306 Water Management (Water Supply Authorities) Regulation 2004: 306

Water NSW Act 2014 s 7: 328 s 11: 328 s 17: 328 s 61: 333 Water NSW Regulation 2013: 328 Western Lands Act 1901: 356 Wilderness Act 1987: 154, 507 s 5: 519 ss 6-12: 518 55 14-16: 518 55 17-19: 519 ss 23-24: 519 s 30: 519 Work Health and Safety Act 2011: 743 Pt9:752 Work Health and Safety (Mines and Petroleum) Legislation Amendment (Harmonisation) Bill 2015: 457 Queensland Electricity - National Scheme (Queensland) Act 1997:251 Food Act 2006: 441 Greenhouse Gas Storage Act 2009: 277 South Australia Food Act 2001: 441 National Gas (South Australia) Act 2008: 252 Sch, cl 23: 252 cl 25: 252 cl 27: 252 cl 69: 252 National Electricity (South Australia) Act 1996: 251 National Electricity (South Australia) (New National Electricity Law) Amendment Act 2005:251 Tasmania Food Act 2003: 441 Victoria Companies (Victoria) Code: 624 FoodAct1984:441 Greenhouse Gas Geological Storage Act 2008: 277 National Electricity (Victoria) Act 1997: 251 Australian Capital Territory Electricity (National Scheme) Act 1997: 251 Food Act 2001: 441 Heritage Act 2004: 568 Northern Territory Mining Management Act s 23: 796 s39: 796 United Kingdom Companies Act 2006 s 172: 800 Town and Country Planning Act 1932: 1, 65 United States California Transparency in Supply Chains Act of 2010 (Calif): 781 Clean Air Act 1990: 31 National Environmental Policy Act of 1969: 153, 158,167

International Agenda 211992: 24 Ch 18: 282 Agreement between the Government of Australia and the Government of the People's Republic of China for the Protection of Migratory Birds and their Environment 1986 (CAMBA): 214,366,400 Agreement between the Government of Australia and the Government of Japan for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment 1974 GAMBA): 214, 366, 400 Agreement between the Government of Australia and the Government of the Republic of Korea on the Protection of Migratory Birds 2006 (ROKAMBA): 400 Agreement on the Conservation of Albatrosses and Petrels 2001 (ACAP): 400 Apia Convention 1976: 214 Athens Charter for the Restoration of Historic Monuments 1931: 531-532 Australia ICOMOS Charter for Places of Cultural Significance (Burra Charter): 533 Cartagena Protocol on Biosafety 2000: 388, 441 Art 1: 388 Art 5: 388 Art6.1: 569 Convention for the Prevention of Pollution from Ships 1973/1978 (MARPOL): 366, 653, 663 Annex I: 650-652, 655 reg 12: 657 Annex II: 650-652, 655 Annex Ill: 650-652, 655 Annex IV: 651-652, 655 Annex V: 651, 655 Annex VI: 650-651, 652, 655 Convention for the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter of 29 December 1972 (London Convention): 650, 665 Annex I: 663-664 Annex II: 663 Art 5: 664 1996 Protocol to the Convention for the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter 1972: 663 Arts 3-4: 664 Arts 5-6: 664 Art 8: 664 Art 9: 664 Annex I: 664-665 Annex II: 665 Convention for the Protection of the World Cultural and Natural Heritage 1975 (World Heritage Convention): 16-17, 214, 366, 385, 394,491,541 Art 1: 530-531 Art 2: 530 Art 8: 534 Art 11: 534, 539 Convention on Biological Diversity 1992 (Biodiversity Convention): 214, 384, 387, 389, 406 Art 1: 385 Art 2: 385, 394

lxv

Art 4: 386 Art 5: 386 Arts 7-9: 386 Arts 6-16: 386 Art 8: 191 Art 19: 388 Convention on the Conservation of Migratory Species of Wild Animals 1979 (CMS or Bonn Convention): 214, 384-385, 400 Convention on the International Trade in Endangered Species (CITES) 1973: 214, 385, 406 Art II.2: 384 Appendix I: 385 Appendix II: 384-385 Appendix III: 384 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (UNESCO Convention): 534, 558 Convention on the Protection of the Underwater Cultural Heritage 2001 (Underwater Cultural Heritage Convention): 534 Convention on the Control of Trans boundary Movements of Hazardous Wastes and their Disposal 1989 (Basel Convention): 676-677 Art 1: 679 Art 2.8: 680 Art 6: 679 Art 11: 678-681 Annex I: 679 Annex III: 679 Annex IV: 678 Annex VIII: 679 Annex IX: 679 Convention on the Safeguarding of the Intangible Cultural Heritage 2003 (Intangible Cultural Heritage Convention): 534 Convention on Wetlands 1971 (Ramsar Convention): 214, 288, 366, 385, 394, 496 Art 2: 191, 495 Global Programme of Action for protecting the marine environment from land-based sources of pollution 1995: 366 Hague Convention on the Protection of Cultural Heritage in Times of Armed Conflict 1954 (Hague Convention): 534 International Charter for the Conservation and Restoration of Monuments and Sites 1964 (Venice Charter): 533 International Convention for the Regulation of Whaling 1946 (ICRW) Art VIII: 403 International Treaty on Plant Genetic Resources for Food and Agriculture (Plant Treaty): 385 Kyoto Protocol to the UN Framework Convention on Climate Change 1997: 23, 239, 241, 264, 347 Art 1: 238 Art 3: 237-238 Art3.3: 238 Art3.4: 238 Art 5: 238 Art 6: 239 Art 7: 238 Art 11: 238 Art 12: 239 Art 17: 239

lxvi

TABLE OF STATUTES

Kyoto Protocol to the UN Framework Convention on Climate Cha nge 1997 (cont) Art 25: 240 Annex A: 238 Annex B: 238 Annex I: 238-240 Montreal Protocol on Substances that Deplete the Ozone Layer 1987: 593, 727 London Amendment (1990): 727 Copenhagen Amendment (1992): 727 Vienna Amendment (1995): 727 Montreal Amendment (1997): 727 Beijing Amendment (1999): 727 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation 2010 (Nagoya Protocol): 389 OECD Decision of the Council C 92 39 / FINA: 68 Rio Declaration on Environment and Development 1992: 23, 26 Principle 1: 24 Principle 2: 24 Principle 3: 24 Principle 5: 24 Principle 7: 24 Principle 9: 24 Principle 10: 24 Principle 11: 24 Principle 13: 24 Principle 15: 24, 388 Principle 16: 24

Principle 17: 24 Principle 20: 24 Principle 22: 24 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998: 23, 737 South Pacific Nuclear Free Zone Treaty 1985: 755 Stockholm Convention on Persistent Organic Pollutants 2001: 23, 676-677, 736 United Nations Convention on the Law of the Sea:366 United Nations Universal Declaration of Human Rights: 780 United Nations Framework Convention on Climate Change 1992: 233, 236, 240-242, 244-245, 248, 728 Art 2: 246-247 Art4.l: 237 Art 6: 237 Art 10: 247 Preamble: 237 Vienna Convention for the Protection of the Ozone Layer 1985: 727 Waigani Convention to Ban the Importation into Forum Island Countries of Hazardous and Radioactive Wastes and to control the Transboundary Movement and Management of Hazardous Wastes within the South Pacific Region 1995: 681

1

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

This chapter provides an overview of environmental law in Australia, while pointing out that, until the 1970s, environmental law was not recognised as a separate body of legal principle. Environmental controls were distributed over a number of statutes which dealt with land use planning, local government law and pollution control. In New South Wales, the planning scheme dated back to measures adopted in 19451 which in turn were modelled on the United Kingdom Town and Country Planning Act 1932. Planning schemes made under the legislation focused on infrastructure and technical issues. They did not incorporate environmental assessment and protection. Further, there was no transparency in planning matters and no community involvement in the process. There were also no comprehensive controls to regulate pollution. The most substantive tools available to litigants were the traditional common law remedies, such as nuisance, trespass and negligence. This chapter provides a comprehensive analysis of common law remedies, and some of their inadequacies. Having discussed the common law remedies, the powers of the Commonwealth and NSW governments to enact environmental legislation are discussed. It is important to note that under the Constitution the Commonwealth has no head of power over the environment, although it has used a number of other powers to legislate in this area. More recently, however, the Commonwealth and State governments have worked together in the context of 'co-operative federalism' to devise environmental policy in the areas of pollution control, environmental impact assessment, heritage conservation, natural resource management, salinity and water quality, water reform, and energy and climate change. The policies devised at the intergovernmental level are then usually incorporated into environmental legislation enacted by State governments and often supported by payments from the Commonwealth. This chapter also discusses the most significant influences on the recent development of environmental law in Australia, namely the internationally recognised concept of sustainable development and the trend to create markets to deliver specific environmental outcomes. The move to establish markets is underpinned by an economic rationalist approach currently favoured by the Commonwealth and NSW governments.

The common law: an inadequate source of environmental law Common law, or judge-made law, has been developed over centuries, first in the United Kingdom and then in Australia afer colonisation. The main common law causes of 1

The Local Govern111e11t (Town and Country Planning) Amendment Act 1945 (NSW) inserted a new Pt XIIA entitled 'Town and Country Planning Schemes' into the Local Government Act 1919 (NSW).

2

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

action relevant to environmental protection are the torts of private nuisance, public nuisance, trespass and negligence. These causes of action have proved largely ineffective as a means of protecting the environment since their emphasis is on protection and enforcement of private rights and obligations and not on the protection of public rights and interests. This has made it difficult in most cases for third parties to obtain standing. Common law remedies are also reactive, rather than proactive. Instead of focusing on actions which can prevent pollution, the traditional common law causes of action generally involve seeking compensation for damage which has already occurred, although in appropriate cases an injunction may be granted to prevent an unlawful action. Common law actions also depend on problems being brought before the courts, which results in piecemeal law reform. There is little doubt today that common law causes of action are ineffective as a means of protecting the environment in a wide range of circumstances and that they are largely being superseded by legislation. As Lord Scarman, a judge of the English House of Lords and a former Chairman of the English Law Commission, commented: Tied to concepts of property, possession, and fault, the judges have been unable by their own strength to break out of the cabin of the common law and tackle the broad problems of land use in an industrial and urbanised society. The challenge appears, at this moment of time, to be likely to overwhelm the law. As in the area of the social challenge, so also the guarding of our environment has been found to require an activist, intrusive role to be played by the executive arm of government. 2 Most statutes dealing with the environment provide criminal sanctions for breaches, rather than civil remedies. Civil remedies have two particular advantages over criminal prosecution. First, they seek to compensate for damage caused, which may often exact a greater financial penalty from the polluter than criminal prosecution. Further, the civil standard requires proof to be established on the balance of probabilities, which is less demanding than the criminal standard of proof. It is interesting to note that there has been a resurgence of common law actions in Australia over the past 15 years, particularly in the area of negligence. Most of these actions have been brought against public authorities for compensation for an alleged breach of a statutory duty. Some of the more frequently used common law actions are discussed below.

3

the plaintiff must prove that the nuisance constitutes a substantial interference with the enjoyment of the land 5 - that is, actual damage must be proved; nuisance per se is_ not actionable. The plaintiff must also establish that the interference is unreasonable, smce the law of private nuisance is largely concerned with striking a balance between the competing uses of adjoining landowners.6 The test of 'unreasonableness' is an objective one and the question to be considered is: [W]hether the neighbour is using his property reasonably, having regard to the fact that he has a neighbour. The neighbour who is complaining must remember, too, that the other man can use his property in a reasonable way and there must be a measure of give and take, live and let live.7 Factors relevant to the determination of whether the interference is unreasonable in the circumstances include the locality of the land, the time, the duration (whether temporary or permanent), the mode of commission, the nature of the nuisance, the potential for harm and the character and extent of harm, as well as any alternative action which may have been taken. 8 Thus, a barking dog in a noisy inner city suburb may well be tolerated whereas this may not be so in quiet garden suburbia. Similarly, the occupier in a suburb already polluted is unlikely to find a sympathetic hearing if a nearby factory discharges into the atmosphere as it has always done. 9 If successful, the plaintiff may recover damages or claim an injunction to restrain the wrongful conduct. Situations in which the tort of private nuisance has had widespread use in controlling disturbances having environmental consequences include: air pollution from odours,10 gases, smoke, fumes and dust,11 water pollution,12 and offensive noise and vibrations.13

Public nuisance Public nuisance has been defined as an act or omission 'which materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects'.14 There is no hard and fast rule as to how many people must be affected to constitute a 'class' of the public. It is sufficient to prove that a representative cross-section of the 'class' has been affected.15 At common law, public nuisance is a crime. In addition, like private nuisance, public nuisance provides for tortious liability. Public nuisance is similar to, but distinct from, private nuisance since it is affects the public generally, whereas a private nuisance focuses on preserving an individual's interest in the use and enjoyment of land.

Nu isance Private nuisance Private nuisance involves an act or omission which is an interference with, disturbance of, or annoyance to a person in the exercise or enjoyment of his or her ownership or occupation of land or some easement, profit or right used in connection with the land.3 Private nuisance has limitations as a remedy to pursue public interest litigation since the litigant must establish and prove certain essential elements to succeed. In the first place, the litigant must have an interest in the land affected. 4 Fault of some kind and knowledge or foresight of the risk of harm by the defendant must also be established. Furthermore, 2 3 4

English Law - The New Dimension (Stevens, 1974) at 53. Robson v Leischke (2008) 72 NSWLR 98 at [42], citing Clerk & Lindsell on Torts (19th ed, Sweet & Maxwell, 2006) [20-01], p 1162; Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 896-897. See Oldham v Lawson (No 1) [1976] VR 654; Read v J Lyons & Co Ltd [1947] AC 156 at 183.

5 6 7 8 9 10 11 12

13 14 15

Munro v Southern Dairies Ltd [1955] VLR 332. Sedleigh-Denfield v O'Callaghan [1940] AC 880 at 903; Elston v Dore (1982) 149 CLR 480 at 488. Kennaway v Thompson [1981] QB 88 at 94; [1980] 3 All ER 329 at 333. See Van Son v Forestry Commission of NSW(l995) 86 LGERA 108. See Gillingham C v Medway Dock [1993] QB 343. Aldred's Case (1611) 9 Co Rep 57b; 77 ER 816; Baulk/Jam Hills Shire Council v AV Walsh Pty Limited (1968) 15 LGRA 338; Allen v Gulf Oil Refining Ltd [1981] AC 1001. Thompson v Sydney Municipal Council (1938) 14 LGR (NSW) 32; Kidman v Page [1959] Qd R 53; Halsey v Essa Petroleum Co Ltd [1961] 1 WLR 683; St Helen's Smelting Co v Tipping (1865) 11 HL Cas 642; 11 ER 1483. Allen v Gulf Oil Refining Ltd [1981] AC 1001; Gartner v Kidman (1962) 108 CLR 12; Van Son v Fores try Commission of NSW (1995) 86 LGERA 108; Lawrence v Kempsey Shire Council (1995) 87 LGERA 49; Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128. Munro v So uthern Dairies Ltd [1955] VLR 332; Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Halsey v Essa Petroleum Co Ltd [1961] 1 WLR 683; Cohen v City of Perth (2000) 112 LGERA 145. A ttorney-General v PYA Quarries Ltd [1957] 2 QB 169 at 184. Ibid.

4

To bring an action in public nuisance, it is not essential to establish any interest in land. However, the claimant must demonstrate 'a substantial and unreasonable interference with the public's right'.16 To have standing to bring an action, the claimant must also prove that he or she has suffered 'special damage' over and above people in the 'class' of the public that have been affected.17 As Sholl J stated in Walsh v Ervin:18 [A]n individual cannot sue alone for relief in respect of a nuisance .. . unless he has sustained some particular damage, in the sense of some substantial injury, directly and not merely consequential, beyond that suffered by the public generally. Where a person suffers to the same extent as other members of the community, that person is left to seek the assistance of the Attorney-General, who must lend his or her name to allow an action to proceed. The disadvantage is obvious as it places the decision in the hands of a public officer amenable to political pressure.19 This makes public nuisance difficult to prove in actions based on pollution, as invariably the damage from, for example, smog emanating from industrial premises pervades a complete area with equal effect. In Ball v Consolidated Ru tile, 20 the plaintiffs brought an action in public nuisance against a mining company. The plaintiffs were a group of commercial fishing operators. The mining company had deposited a bank of earth and slurry adjacent to Moreton Bay. Some of the bank subsequently collapsed into the bay, causing damage to the plaintiffs' nets and making it more difficult to continue fishing operations. The plaintiffs claimed that the defendant's actions constituted a public nuisance and that, as commercial fishing operators, they had suffered special loss over and above that of the general public. The court refused the claim on the basis that, since all members of the public were entitled to fish in the bay, the plaintiffs had suffered no special loss over and above that of the average member of the public. Nor did a licence to fish confer any special rights other than those held in the public generally. It should be noted that s 125 of the Local Government Act 1993 (NSW) extends the common law remedy of 'public nuisance'. This section empowers a council to abate a public nuisance or to order a person responsible for a public nuisance to abate it. According to the explanatory note to s 125, a nuisance is 'public' if it materially affects the reasonable comfort and convenience of a sufficient class of people to constitute the public or a section of the public. In the United States public nuisance actions have been brought against utilities and car manufacturers seeking a reduction of greenhouse gas emissions and damages. 21 16 17 18 19

20 21

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Vo/man Engineering v Lob [2005] NSWCA 348 at [37]. Attorney-General v PYA Quarries Ltd [1957] 2 QB 169. [1952] VLR 361 at 368. See Kent v Johnson, Minister of State for Works (1973) 21 FLR 177; Johnson v Kent (1975) 132 CLR 164; Attorney-General v Board of Water Supply and Sewerage (1916) 16 SR (NSW) 437; and the article by WK Hancock, 'The Battle of Black Mountain', Department of Economic History, ANU, Canberra, 1976, which illustrate the political nature of an Attorney-General's decision to lend his or her name to a suit. Although in the Kent case t~e Attorney-General was eventually persuaded to bring the action, the plamhffs ended up conducting 1t. The plamhffs were ultimately unsuccessful with the court refusing to accept that the construction of a tower on a mountain, which a sector of the public found visually and aesthetically d1spleasmg, amounted to a public nuisance. [1991] Qd R 524. Australian litigants seeking to curb activities contributing to greenhouse gas emissions have preferred to base their actions on a statutory failure to consider ESD principles: Gray v Minister for Planning (2006) 152 LGERA 258._ Austrahan htigants have also unsuccessfully argued that CO2 emissions not specified m hcence cond1t10ns for a coal-fired power station constitute an offence of unlawfully discharging

5

These actions have all proved unsuccessful. For example, in Connecticut v American Electric Power22 eight State Attorneys-General brought a public nuisance action against the five largest emitters of carbon dioxide in the United States. The District Court dismissed the action, holding that the problem of global warming was a complex policy question and should be left to the political branches of government. That decision was reversed by the Court of Appeals for the Second Circuit, which found that the suits were not barred by the 'political question' doctrine and that all the plaintiffs had standing. 23 The power companies appealed to the United States Supreme Court. 24 The Supreme Court was divided on the 'political question' with the result that the finding of the Court of Appeals on jurisdiction was confirmed. However, the Supreme Court was unanimous in finding that the common law right to seek an abatement of carbon-dioxide emissions from fossil-fuel fired power plants as a public nuisance had been displaced by the authority of the Environmental Protection Agency to regulate emissions25 and that the Second Circuit had erred in ruling otherwise. This decision effectively bars the way for future federal common law nuisance claims although it leaves open the possibility of state common law nuisance actions. 26 These cases demonstrate the difficulties facing public nuisance litigants. Equally problematic is the need to establish causation although there has been an increasing willingness on the part of the courts to find a causal relationship between actions that result in emission of greenhouse gases and global climate change. 27

Defence of statutory authority A statutory authority carrying out authorised works is given a measure of protection against liability for nuisance as a result of exercising its statutory powers. It seems that the defence of statutory authority will only succeed where the activity is authorised by statute and which, despite the taking of reasonable precautions, constitutes a nuisance. The nuisance must be the 'inevitable consequence' of the performance of the statutory duty or exercise of power to be justified by the statute. 28 'Inevitable consequences' means that there was, 'in the light of contemporary scientific knowledge then available, no reasonable way' the permitted function could be performed without causing the damage. 29 Furthermore: [The] criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense. 30

22 23 24 25 26

27 28 29 30

waste under s 115 of the Protection of the Environment Operations Act 1997 (NSW): Gray v Macquarie Generation [2010) NSWLEC 34. 406 F Supp 2d 265 (SDNY) 2005. Connecticut v American Electric Power 582 F 3rd 309 (2009) at 349, 358 and 371. American Electric Power Co v Connecticut 564 US, No 10-174 (2011). That authority was confirmed by the US Supreme Court in Massachu setts v EPA 127 S Ct 1438 (2007). For example, in People of the State of California v General Motors Corporation (2007) WL 2726871 (ND Cal), an action against automobile manufacturers alleging that their greenhouse gas emissions created and contributed to a public nuisance was dismissed as presenting a non-justiciable question. Massachusetts v EPA 127 S Ct 1438 (2007); Gray v Minister for Planning (2006) 152 LGERA 258. Although these were judicial review cases, the same principle should apply in the case of public nuisance. York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983) 1 NSWLR 391 at 397 per Powell J. Ibid. Manchester Corporation v Farnworth [1930) AC 171 at 183.

6

These authorities were applied by Young Jin Lawrence v Kempsey Shire Council, 31 where a council was held liable for damages in relation to a nuisance arising from sewage effluent entering a creek and flowing onto the plaintiff's land. Young J rejected the defence of statutory authority after imposing the following test: 'Did the council act taking all reasonable regard and care for the interests of other persons?' A similar approach was adopted in Van Son v Forestry Commission of NSW, 32 in which the NSW Supreme Court found that the Forestry Commission's logging activities constituted a private nuisance where they had led to siltation of a stream used by a downstream landowner. 33 The defence of statutory authority was rejected by the court since the Forestry Commission had carried out its operations in an unreasonable way.

Trespass Trespass is rarely invoked to protect the environment. Trespass involves the unauthorised direct physical interference with the plaintiff's exclusive possession of his or her land. The advantage of an action in trespass is that it is unnecessary to prove actual damage. Every unjustified entry directly onto land in possession of another, which is carried out either intentionally or negligently, is an actionable trespass, even though no damage is done thereby. However, like private nuisance, the only persons having title to sue are those in exclusive possession of land or who have some recognised proprietary interest constituting possession. 34 Further, it is only immediate or direct acts that can be the subject of an action for trespass. In Southport Corporation v Essa Petroleum Co Ltd, 35 an oil spill caused by the defendant had polluted the plaintiff's property. The plaintiff's action in trespass failed because the oil had been carried there by the tide, and consequently did not constitute an immediate or direct act.

Negligence Negligence is rapidly becoming a strong ground on which causes of action may be based to seek a remedy for injuries, damage to property or economic loss. The litigant must prove that the defendant owed the litigant a duty of care, that the duty of care was breached by the polluter and that the litigant suffered foreseeable damage or loss as a result of that breach. The basis of the tort of negligence is that all persons owe a duty of care to avoid injury to others who might reasonably be foreseen as likely to be injured by their acts or omissions. 36 Once a duty of care is established, it is necessary to determine whether that duty has been breached. This turns on whether the appropriate standard of care has been met. The High Court test formulated in Wyong Shire Council v Shirt37 is to ask whether a reasonable person in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer is in the affirmative, the court must then determine what 31 32 33 34 35 36 37

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

(1995) 87 LGERA 49. (1995) 86 LGERA 108. See also Allen v Gulf Oil Refining Ltd [1981] AC 1001 and Tate and Lyle Food and Distribution Ltd v Greater London Council [1983] 2 AC 509. National Provincial Bank Ltd v Ainsworth [1965] AC 1175. [1954] 2 QB 182. Donoghue v Stevenson [1932] AC 562. (1980) 146 CLR 40.

7

a reasonable person would do by way of response to the risk. The perception of the reasonable person's response requires an evaluation of the magnitude of the risk and the degree of the probability of its occurrence. It also requires an examination of the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. The more hazardous the activity, the higher the standard of care required. Formerly, under the doctrine in Rylands v Fletcher, 38 a person who brought a hazard onto his or her land for their own purposes was strictly liable for all ensuing damage that was a 'natural consequence' of its escape. However, in Burnie Port Authority v General Jones Pty Ltd, 39 the High Court effectively abolished this doctrine and absorbed it into the tort of negligence. In that case, the Port Authority had allowed an independent contractor to carry out unguarded welding operations on the Port Authority's premises in close vicinity of cartons of a highly flammable substance. The substance caught fire, causing substantial damage. The High Court found that the Port Authority had breached its duty of care and was liable to General Jones in negligence. The high standard of care imposed by the High Court effectively means that, if harm does occur during an ultra-hazardous activity, the standard of care has not been met. Thus, for practical purposes the abolition of the strict liability rule in Rylands v Fletcher may not have a significant impact.

Negligent exercise of a statutory duty When a public authority, such as a local council, exercises its power in a manner which causes loss or damage to the plaintiff, the courts will generally have little difficulty in finding a duty of care. It becomes more difficult to decide whether a duty is owed in situations where the loss or damage results from failure to exercise a statutory power. This discussion will examine the tests applied by the High Court in establishing when public authorities will owe a duty of care to persons suffering damage as a result of their failure to exercise a statutory duty. 40 In recent years, the High Court has propounded a number of different approaches for determining whether a public authority owes a duty of care to a plaintiff. In Sutherland Shire Council v Heyman, 41 the High Court applied the concept of 'general reliance' to establish the necessary proximity in which a duty of care would arise. In terms of this approach, a council owes a duty of care to those members of the public who would 'generally rely' on it to exercise its powers in circumstances where they are particularly vulnerable and where the council is empowered to protect them from the actual loss that occurred. In Alec Finlayson Pty Ltd v Armidale City Council, 42 a council was held liable in negligence to a developer for losses arising as a result of land contamination. The land had previously been used as a timber treatment plant, and the council was aware of the substances used on the site and their potential danger, but nevertheless rezoned the land for residential development and subsequently granted subdivision approval and building consents. The council appealed to the Full Federal Court which upheld 38 39 40

41 42

(1866) LR 1 Ex 265. (1994) 179 CLR 520. For fuller discussion, see Z Lipman and R Stokes, 'Shifting Sands: The Implications of Climate Change and a Changing Coastline for Private Interests and Public Authorities in Relation to Waterfront Land' (2003) 20 EPLJ 406 at 411-417. (1985) 157 CLR 424. (1994) 51 FCR 378.

8

Burchett J's decision that the council owed the developer a duty of care when granting subdivision and building consents. 43 In more recent judgments,44 the High Court has departed from the tests of 'general reliance', 'foreseeability' and 'proximity' as concepts sufficient to establish a duty of care. The test currently favoured by a majority of the High Court is known as the 'salient factors' test. This approach has been applied by the High Court in a number of recent decisions. In Pyrenees Shire Council v Day, 45 the alleged negligence was the council's failure to direct and ensure that a defective fireplace be repaired. The result was a fire which caused extensive damage to a shop premise and adjoining premises. The salient factors which rendered the council liable were its statutory exercise of control over the risk of fire and special knowledge of the fire risk. Similarly, in Brodie v Singleton Shire Council, 46 the High Court referred to the 'significant and special measure of control' which highway authorities exercised over the safety of the person or property. This combination of direct control, power, and the undertaking of functions in accordance with power, gave rise to a duty of care. This led the court to abolish the longstanding highway immunity rule which provided that highway authorities were not liable for non-feasance (failure to act) as opposed to misfeasance (a positive act by the authority). The most recent pronouncement on this issue by the High Court is Graham Barclay Oysters Pty Ltd v Ryan. 47 This case concerned the liability in negligence of growers and distributors of oysters and the relevant local and State government, for harm suffered by consumers of oysters. The consumers contracted the hepatitis A virus as a consequence of eating oysters which had been harvested from Wallis Lake which had been polluted by human faecal contamination. The case against the council was that it had not exercised its powers under the Local Government Act 1993 (NSW) to monitor the water in the lake for contamination, warn oyster farmers of contamination and take steps to bring about a cessation of harvesting. On appeal, the High Court unanimously rejected any finding of negligence against the State Government or the council. The High Court held that neither the State Government nor the council owed the plaintiffs a duty of care. Nor had it been shown that the State Government or the council was the cause of the plaintiff's damage, for although they arguably could have done more to prevent the outbreak, it had not been established that the harm could have been prevented - 'short of prohibiting the cultivation of oysters in Wallis Lake altogether'. 48 In Ryan, a majority of the High Court applied the 'salient factors' test to determine whether the State Government or the council owed a duty of care to the plaintiff. An important factor in determining that no duty of care existed was the council's lack of control over the risk of harm that eventuated. Although the council had statutory power to monitor and intervene to protect the environment, it had no control over all risks of harm which could result from the conduct of independent commercial enterprises in its area. The council did not have direct responsibilities in relation to the cultivation, harvesting and supply of oysters. Nor did council's conduct directly affect 43 44 45 46 47 48

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Armidale City Council v Alex Finlayson Pty Ltd (1999) 104 LGERA 9. See Pyrenees Shire Council v Day (1998) 192 CLR 330 and Perre v Apand Pty Ltd (1999) 198 CLR 180.

(1998) 192 CLR 330. (2001) 206 CLR 512 at 559. (2002) 211 CLR 540. Ibid at 555 per Gleeson CJ.

9

the oyster consumers as there were many levels of decision-making between council's conduct and the consumers. The disadvantage of the 'salient factors' test in Ryan and other cases is that it provides no conceptual framework for determining when a duty of care will exist. 49 The result is that cases will continue to be decided on an ad hoc basis. Equally unfortunately, three of the High Court judges did not apply the 'salient factors' test and preferred to adopt their own tests for establishing the existence of a duty of care. Although no hard and fast rule can be laid down, the above analysis indicates that the salient factors which the High Court will examine to determine the existence of a duty of care include:

• Statutory powers - whether the imposition of a duty of care is consistent with the council's statutory powers;

• Foreseeability and nature of the harm - whether the nature and type of harm is foreseeable and whether it is reasonable in all the circumstances to impose a duty of care;

• Proximity - whether the relationship between the parties is one of neighbourhood in Lord Atkin's sense in Donoghue v Stevenson; • Control and assumption of responsibility - whether the council is in a position of control and has the power to control the situation that brought about the harm;

• Knowledge - whether the council must know, or ought to have known, of an existing risk of harm to the plaintiff, or a specific class of persons who included the plaintiff (rather than the general public); • Reliance - the degree of reliance by the plaintiff on the defendant; • Vulnerability - whether the claimant is vulnerable in the sense that he or she could not reasonably be expected adequately to safeguard herself or himself. The 'salient factors' test has been applied in several decisions of the NSW Court of Appeal. 50 In Caltex Refineries (Qld) Pty Ltd v Stavar51 the court listed 17 salient features that affected the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. The court pointed out that it is not compulsory in any given case to make findings about all of these features. Nor is the list exhaustive: Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. 52 In Makawe Pty Ltd v Randwick City Council, 53 the council approved a development application to construct a three-storey residential apartment building, with a basement car park three metres below ground level. At the time of granting building approval, the council was in possession of a geotechnical report which showed that the car park was situated at almost the same level as the local water table and would be at risk of flooding. The council did not impose any condition of consent relating to the level of the car park. A year later, the car park flooded, causing minor damage. The plaintiff owners brought an action in negligence against the council. The claim was rejected on the grounds that the council owed no duty of care to the plaintiffs. Both the trial judge and the NSW Court of 49 50 51 52 53

See further J Swanton and B McDonald, 'Liability in Negligence for Pure Economic Loss' (2000) 74 AL] 17. See, for example, Makawe Pty Ltd v Randwick City Council (2009) 171 LGERA 165; Caltex Refineries (Qld) Phj Ltd v Stavar (2009) 75 NSWLR 649. (2009) 75 NSWLR 649. Ibid at [104]. (2009) 171 LGERA 165.

10

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Appeal based their decisions on the 'salient factors' test. However, the Court of Appeal disagreed in some respects with the trial judge's application of the test. Specifically, it held that the trial judge had erred in finding that each of the elements of control, vulnerability and reliance had to be satisfied to establish a duty of care. The Court of Appeal also rejected the finding by the trial judge that actual reliance was required, stating that it is not necessarily actual reliance that is significant for the purposes of a duty of care but 'foreseeability or knowledge of that reliance by the defendant'. 54 The court pointed out that where there is not an established duty of care, it is necessary to consider the cumulative effect of the 'salient factors'. The court found seven salient factors applicable to the outcome of the case which, although finely balanced, 'taking into account the totality of the salient elements', did not establish a duty of care. 55

Policy matters and justiciability In earlier cases there was an attempt by the courts to distinguish between policy and operational matters. 56 According to this approach, only operational decisions are capable of being the subject of a duty of care. Policy matters are not justiciable. However, that distinction did not gain uniform acceptance and its value and utility have been questioned. 57 In the Ryan case, Gleeson CJ did find the idea behind the distinction relevant in some situations and considered that it could operate to limit negligence liability in certain circumstances. He observed as follows: Decisions as to raising revenue, and setting priorities in the allocation of public funds between competing claims on scarce resources, are essentially political. So are decisions about the extent of government regulation of private and commercial behaviour that is proper. 58

Statutory exemption clauses A number of statutes impose duties to provide services and carry out works. This is especially the case in relation to public authorities and public corporations. To ensure that these bodies are able to discharge their statutory functions without being unduly exposed to common law actions, many such statutes provide for statutory immunity. The courts have stated in a number of cases that exemption clauses should be construed strictly so as to confine the scope of the immunity conferred. 59 This is based on the principle that legislators would not deprive a person of legal rights otherwise enjoyed against a statutory body, except by the use of clear language. 60 The strict interpretation of statutory exemption clauses is well illustrated by the decision of the High Court in Puntoriero v Water Administration Ministerial Corporation 61 where the defendant was held liable in negligence for supplying chemically polluted 54 55 56

Ibid at (26). Ibid. Sutherland Shire Council v Heyman (1985) 157 CLR 424; Alec Finlayson Pty Ltd v A rmidale City Council

57

Pyrenees Shire Council v Day (1998) 192 CLR 330 at 393-394; Romeo v Conservation Commission of the Northern Territory (1998) 151 ALR 263; Stovin v Wise [1996) AC 923 at 951-953. (2002) 211 CLR 540 at 553. Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575; Australian Airlines Commission v Newman (1987) 162 CLR 466; Board of Fire Commissioners v A rdouin (1961) 109 CLR 105. Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR 575 at [59) per Kirby J; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Potter v Minahan (1908) 7 CLR 277. (1999) 199 CLR 575.

(1994) 51 FCR 378.

58 59 60 61

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

11

water which severely damaged the appellants' potato crop. A majority of the High Court62 held that the defendant was not absolved from liability by a statutory exemption clause which provided immunity from loss or damage suffered as a consequence of the exercise of a 'function' or 'power' to 'release water'. 63 Gleeson CJ and Gummow J held as follows: The supply of water by the Corporation to the appellants was not the exercise of a function which of its nature involved any interference with the rights of irrigators such as the appellants. Rather, it was a consensual dealing. Further, the gist of the complaint by the appellants was, as pointed out, the failure to warn of danger of which the Corporation knew or ought to have known. In those circumstances, s 19(1) did not operate to deny the action brought by the appellants. 64 No hard and fast rule can be laid down as to when an exemption clause can be relied on. Ultimately, it is the duty of the court to construe the wording of the exemption clause and apply it to the facts of the particular case. 65 The Local Government Act 7993 (NSW)

An important exemption clause for local councils is found ins 733 of the Local Government Act 1993. Section 733(1) exempts councils from liability in respect of advice furnished, action taken or anything done or omitted to be done which relates to flooding or its nature or extent, provided the decision was taken in good faith. A similar exemption is provided in relation to natural hazards in the coastal zone (s 733(2)), and to the risk of bush fire (s 722(2A)), provided that the decision was taken in good faith. In each case, good faith will be assumed where council acts substantially in accordance with the relevant manual most recently notified in the Government Gazette (s 733(4)). Without limiting the generality of these exemptions, s 733(3) specifies instances of when these immunities might apply: for example, the preparation or making of an environmental planning instrument; the preparation or making of a development control plan; imposition of conditions; advice furnished in as 149 certificate under the Environmental Planning and Assessment Act 1979 (NSW) (EPAA); the carrying out of coastal management works or bush fire hazard reduction works; and any other thing done or omitted to be done in the exercise of a council's functions. Section 733(1) was considered in Mid Density Developments Pty Ltd v Rockdale Municipal Council. 66 The case concerned the absence of any adequate system for the council to respond, when issuing certificates under s 149 of the EPAA, to questions by the vendor and later the purchaser, respecting the flooding of the particular land under contract. It was held that, while not dishonest, the council had not acted in good faith. The court emphasised that 'good faith calls for more than honest ineptitude'.67 There must be a real attempt to answer the request or at least to consult council's records. In 62 63

64 65

66 67

The majority was constituted by Gleeson CJ, Gummow, McHugh, Callinan JJ, with Kirby J dissenting. This provision was in s 19(1) of the now repealed Water Administration Act 1986 (NS_W). An amended version has been incorporated in the Water Management Act 2000 (NSW) s 398 which covers acts as well as omissions. (1999) 199 CLR 575 at [22). This may prove a difficult task. In Water Administration Ministerial Corporation v Puntoriero (1_997) 42 NSWLR 676, a majority of the NSW Court of Appeal held that the _e xe~pt10n clause pr?v1ded immunity for the Corporation and set aside the decision of the court of first mstance. The dec1s1on of the Court of Appeal was subsequently reversed by the High Court. (1993) 44 FCR 290. Ibid at (34).

12

this case, there had been no attempt to supply information by recourse to the council's records and there was no system in operation for doing so. Indeed, the council officer whose responsibility it was to deal with the requests for information had consciously ignored the very records that would have supplied it. In Bankstown City Council v Alamdo Holdings Pty Ltd68 the statutory indemnity from liability ins 733(1) was considered by the High Court. The council had been found liable in nuisance for the increased frequency with which land, owned by the respondent, was likely to be flooded. Liability was based on council's past conduct in relation to the construction and operation of the drainage system while involved in the process of urbanisation and which subsequent urbanisation had made less adequate. The council's claim that it was exempt from liability under s 733(1) was rejected both at first instance and on appeal to the NSW Supreme Court. These decisions were overturned by the High Court which held that the council was indemnified from liability under s 733(1) and that the section was also wide enough to protect the council from exposure to injunctive relief. The High Court found that the council had acted in good faith and distinguished the decision in the Mid Density case. The High Court held that in Mid Density the standard against which the council's conduct in issuing the s 149 certificate was to be assessed was apparent from the importance of the information sought for the routine processes of conveyancing; while in this case the vagueness of the complaints against the council lightened the weight of its evidentiary burden to establish good faith. Here, something more than negligence was necessary since, without negligence, there would be no liability for protection against which s 733(1) would be required. Further, the burden was not on the council to establish good faith, but rather on the defendant to show its absence. The decision of the High Court in Alamdo Holdings Pty Ltd was considered by the NSW Court of Appeal in Melaleuca Estate Pty Ltd v Port Stephens Council. 69 The appellants brought an action in nuisance based on the council's omission to abate a nuisance caused by its drainage works which discharged directly onto the appellants' land. The council sought to rely on the statutory defence in s 733(1) claiming lack of funding and other priorities. The Court of Appeal found that the council had not acted in good faith, pointing out that: Where the respondent created the state of affairs ... its omission to remedy the state of affairs can not readily provide justification on good faith grounds because its funds are spent elsewhere; in this respect, the circumstances are to be distinguished from those that occur over time, as in Bankstown City Council v Alamdo Holdings Pty Ltd. 70 It is clear from the above cases that the statutory immunity from liability in s 733 will not always protect councils who would otherwise be liable. However, no hard and fast rule can be laid down and each case has to be decided on its own facts.71 ·

The Civil Liability Act 2002 (NSW) The Civil Liability Act 2002 restricts the potential civil liability of public authorities, such as councils. Part 5 of the Act applies to acts or omissions which would give rise to civil 68 69 70 71

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

(2005) 223 CLR 660. (2006) 143 LGERA 319. Ibid at [84]. See also Gales Holdings Pty Ltd v Tweed Shire Council [2011] NSWSC 1128 where the defendant's action in imposing a retention basin on the plaintiff without giving reasons or compensation was held not to have been done in 'good faith'.

13

liability in tort, even where damages are sought for breach of contract or any other action (s 40(2)). Part 5 sets out core principles to be applied by the court in deciding whether the authority has a duty of care and whether it has been breached.

Resources and their allocation Section 42 of the Civil Liability Act 2002 requires a court to consider the financial and other resources that are reasonably available to the authority for the purpose of exercising their functions in deciding whether a duty of care is owed and whether it has been breached. The general allocation of those resources by the authority is not open to challenge. The fact that the authority complied with general procedures and applicable standards can be relied on as evidence of the proper exercise of its functions. In Gales Holdings Pty Ltd v Tweed Shire Council 72 the court held that s 42 applies to cases based in negligence, not nuisance, since the duty imposed is not a 'duty of care' but a 'duty to take reasonable steps to eliminate the nuisance'. However, s 42 can be considered in deciding whether the defendant took reasonable steps to eliminate the nuisance.73

Lower standard of care The legislation imposes a new test for the standard of care expected of a public authority which is lower than that generally applicable to individuals. Where proceedings are based on a breach of statutory duty, for liability to be imposed it must be shown that the act or omission was 'in the circumstances so unreasonable that no authority having the functions of the authority in question could properly consider the act or omission to be a reasonable exercise of its functions' (s 43(2)). Section 43A provides a similar test in relation to any act or omission by a public authority involving an exercise of, or failure to exercise, a special statutory power. Section 43A refers to a power conferred by statute of a kind that persons are generally not authorised to exercise without specific statutory authority.74 These formulations of the duty of care closely resemble the public law concept of Wednesbury unreasonableness. 75 According to the NSW Court of Appeal, '[w]hether it is appropriate to describe s 43A as encapsulating the blunt expression of "gross negligence" is open to debate. However, it is plain that the drafter of s 43A was attempting to ameliorate the rigours of the law of negligence'. 76 In Warren Shire Council v Kuehne, 77 the NSW Court of Appeal formulated certain principles in relation to the application of s 43A, namely: (1) The language of s 43A states a precondition for the existence of civil liability in the context with which it is concerned. Once it is found or assumed, by 72 73

74 75 76 77

[2011] NSWSC 1128. On the facts of the case, the court found no real financial constraints on the defendant and no real challenge to the way it had allocated resources. The defendant had an obligation to take steps to eliminate the nuisance it had created over the years. Therefore, s 42 did not apply and, even if it did, the court was not satisfied that it should be excused by any financial constraints. S Campbell and N Roucek, 'An Introduction to the Civil Liability of Public Authorities' (2014), . Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680, cited in Campbell and Roucek ibid. Precision Products (NSW) Pty Ltd v Hawkesbury CihJ Council [2008] NSWCA 278 at [177]. [2012] NSWCA 81.

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(2)

(3)

(4)

(5)

reference to the pre-existing common law of negligence, that a duty of care exists and there has been a failure to excise reasonable care, s 43A(3) imposes an additional requirement, beyond those of the common law, before liability can be established. The origin and legislative history of s 43A make it plain that language modelled on that of Wednesbury unreasonableness was adopted ... with the intention of raising the bar for plaintiffs in proof of breach of duty of care by an authority in the exercise of a special statutory power. Notwithstanding the difficulty of transposing the concept of Wednesbury unreasonableness, derived as it is from administrative law, to the law of negligence, the concept now has statutory force in s 43 and s 43A and is to be applied to an authority's act or omission. The words "could properly consider" [in the Wednesbury test] require a determination to be made from the perspective of the authority, but with an objective element. [I]ts transposition into the law of civil liability requires that the unreasonableness must be at a high level. The language of s 43A ("could properly consider" with the restraint of "could" moderated by "properly") necessarily requires questions of degree and judgment. 78

In Gales Holdings Pty Ltd v Tweed Shire Council79 the court found the defendant's actions in creating the nuisance (stormwater runoff) and taking no steps to eliminate it so unreasonable that the defendant did not have the benefit of s 43A.

Failure to regulate an activity Section 44 excludes liability of a public authority for failure to exercise any function to prohibit or regulate an activity if the authority could not have been required to do so in proceedings instituted by the plaintiff. According to Campbell and Roucek, this section limits both the statutory subjectmatter which can give rise to a duty of care and the class of persons entitled to the benefit of it.Bo Aronson considers that to rely on the section the plaintiff must be able to obtain a mandatory order to 'exercise its function'. B1 That means that 'the plaintiff must be able to compel action, not just consideration of whether to act'.B2

Restoration of the non1easance protection for road authorities Section 45 restores the non-feasance rule in relation to a roads authority's failure to carry out road work as it was before the decision of the High Court in Brodie v Singleton Shire CounciZ.B3 The section excludes civil liability of a roads authority for harm arising from a failure to carry out road work, or to consider carrying out road work, unless it has knowledge of the particular risk, the materialisation of which resulted in the harm. This section was considered in Gales Holdings Pty Ltd v Tweed Shire Council. 84 The court held that s 45 did not apply to a council's failure to carry out drainage works since the 78 79 80 81 82 83 84

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Ibid at [117]. [2011] NSWSC 1128. Campbell and Roucek, above n 74. M Aronson, 'Government Liability in Negligence' (2008) 32 MULR 76. Ibid. (2001) 206 CLR 512. [2011] NSWSC 1128.

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council managed roads separately from the stormwater system and h ad a separate budget. Thus, drainage was not 'road work' within the meaning of s 45. Further, even if it was, council's actual knowledge of the risk which resulted in the nuisance precluded reliance on the section.

Exercise of a function or decision to exercise it does not create a duty Section 46 provides that the fact that a public or other authority exercises or decides to exercise a function does not of itself indicate that the authority is under a duty to exercise the function or that the function should be exercised in particular circumstances or in a particular way. This section seems unnecessary. As Campbell and Roucek point out, it is doubtful whether the exercise of a function by a public authority has ever given rise to a duty as envisaged by the section_Bs The Act makes it considerably more difficult for a litigant to succeed in a civil liability action against a council or other public authority.

Legislation: the primary source of environmental law Given the shortcomings of the common law, legislation has emerged as the primary source of environmental law. Legislation is created by State and Commonwealth Parliaments. Most environmental legislation is enacted by the States, but the Commonwealth is playing an increasingly important role. Acts of Parliament are binding on all courts and judges. Only if an Act is unconstitutional, that is, beyond the power of the Commonwealth or State Parliament, can the Act be declared invalid by the State court (in the case of a State Act) and the High Court (in the case of a federal Act). A statute may delegate power to the Governor-General or Governor to make Regulations to deal with certain matters or empower a public authority, local council, Minister or public servant to make some form of legal instrument. Delegated legislation does not have the same status as Acts of Parliament and can be declared invalid by the courts. The division of legislative power between the Commonwealth and State Parliaments in the Australian Constitution has had a considerable influence on the development of environmental law in Australia.B6 Under the Constitution, the legislative powers of the federal government are limited to those matters specified in the Constitution while the residue of powers rests with the States. Environmental issues were not contemplated when the Constitution was enacted and consequently no reference is made to the environment. Thus, the States were traditionally considered to have primary responsibility for environmental matters.B7 State Parliaments have power under their Constitutions to make law 'for the peace, order and good government' of their respective territories. In the environmental context, statutes have been enacted by State governments to cover a wide range of environmental issues including biodiversity, biotechnology, chemicals, energy, environmental planning and assessment, heritage, native vegetation, natural resource management, pollution, waste and water. In recent times, the NSW government has made deliberate attempts to integrate as far as possible the consent 85 86 87

Campbell and Roucek, above n 74. See further Z Lipman, 'Environmental Management in a Multi-Jurisdictional System: An Austra lian Perspective' (1996) 3 SAJELP 105 at 106-107. M Crommelin, 'Resources Law and Public Policy' (1983) 15 UWALR l.

16

provisions of the environmental planning and assessment regime and also the management of natural resources. Local government is not mentioned in the Australian Constitution despite the fact that, at the time of federation, each colony had some form of local government. It is accorded some recognition in State constitutions, but its powers and functions are subsidiary to, and derivative from, the States. Today there are about 560 local councils in Australia to whom State governments have devolved many of their everyday planning and decision-making powers.

Legislative powers of the Commonwealth The Commonwealth Parliament has full plenary power to legislate in respect of federal Territories, including those that are self-governing or outside Australia (Constitution s 122). The Commonwealth Parliament has some exclusive powers (for example, Constitution ss 52, 90) but in most cases Commonwealth powers are exercised concurrently with the States. The Constitution confers legislative power on the Commonwealth Parliament primarily through s 51, which lists 39 heads of power held concurrently with the States. Where legislative powers are exercised concurrently, conflicts and inconsistencies may arise. Section 109 of the Constitution provides a mechanism for resolving inconsistencies in areas of concurrent legislative competence, whereby a Commonwealth law prevails over a State law, rendering the latter invalid to the extent of the inconsistency. There is no presumption that an Act of the Commonwealth Parliament will take precedence over a State law. Although the Commonwealth has no direct powers to legislate on environmental matters it has used a number of other powers to pass environmental legislation. The main heads of power on which the Commonwealth has relied, and can rely, to legislate with respect to the environment are discussed below.BB

The external affairs power Section 51(xxix) of the Constitution confers power on the Commonwealth to legislate with respect to external affairs. The seminal decision on the ambit of this power in relation to the environment was Commonwealth v Tasmania (Tasmanian Dam case).B9 Before this decision, it was settled law that legislation could be valid under the external affairs power in two situations, namely: • where a matter is of international concern, even though its primary operation is within Australia; • where the matter is one which occurs outside Australia. An issue which arose in the Tasmanian Dam case was whether legislation, not otherwise within Commonwealth power, would be valid under the external affairs power where it purports to implement an international treaty or convention which Australia has ratified. Briefly, the facts of the case involved a proposal by the Hydro-Electric Corporation, a statutory authority in Tasmania, to construct a dam on the Gordon-below-Franklin river. The Tasmanian government had passed legislation authorising the proposal. Australia had ratified the Convention for the Protection of the World Cultural and Natural Heritage 88 89

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

For a fuller discussion, see J Crawford, 'The Constitution and the Environment' (1991) 13 Syd LR 11. (1983) 158 CLR 1.

17

1975 (World Heritage Convention) and the Frankl~n riv~r wa~ on the World He~ita~e List. The campaign against the dam became a national ISsue m the federal election m 1983 and featured prominently in the outcome. The new Labor government enacted the World Heritage Properties Conservation Act 1983 (Cth) 90 to prevent the construction of the dam. This action was justified by the federal government principally on the basis that it was meeting its international obligations under the World Heritage Convention. The Tasmanian government instituted an action in the High Court challenging the constitutional validity of the legislation. The validity of the Act was upheld by the High Court (by a majority of four to three). The High Court construed the external affairs power very broadly to enable the Commonwealth to pass legislation, not otherwise within power, to implement an international convention. However, the court did place certain restrictions on the exercise of this power. First, the court can examine the bona £ides of the legislation and, secondly, the legislation has to be in reasonable conformity with the Convention. The intervention of the federal government in land-use issues within the States was extremely controversial and, while there was enormous support in many quarters, the Tasmanian and Queensland governments expressed concern that it challenged the very basis of federalism. However, undeterred by these criticisms, the federal government continued to use these powers to override State government projects in Tasmania and Queensland. These actions generated a great deal of political controversy and resulted in two further constitutional challenges in the High Court. In both cases the High Court confirmed the broad view of Commonwealth power enunciated in the Tasmanian Dam case.91 These High Court decisions greatly extended the federal government's powers over domestic environmental policy and have been a prominent source of federal environmental legislation. This has paved the way for the Commonwealth to play a more active role in environment protection.

The corporations power Section 51(xx) of the Constitution permits the federal government to make laws with respect to foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. This provision clearly confers full plenary power on the federal government to legislate in respect of foreign companies trading in Australia, as well as power to regulate the trading and financial activities (and activities incidental thereto) of trading and financial corporations formed under Australian law.92 However before the Tasmanian Dam case it was unclear whether the power extended to all actions of a trading or financial corporation, or only to their trading and financial activities. Three of the judges in the Tasmanian Dam case took a broad view, holding that the power should extend to the regulation of any acts undertaken by corporations for the purpose of engaging in trading activities. 90

91

92

This Act was repealed in 2000. The Commonwealth's obligations under the World Heritage Convention are now implemented by the En vironment Protection and Biodiversity Conservation Act 1999 _(EPBCA). The EPBCA requires the Commonwealth to consult with the affected State before nommatmg a site for World Heritage listing unless the site is under imminent threat. . . See Richardson v Forestry Commission (Tas) (1988) 164 CLR 261. This dispute concerned the constitutional validity of Commonwealth legislation establishing a Commission o~ Inquiry to determine whether the Lemonthy me Forests should be nominated for World Heritage L1stmg. In Queensland v Co111!110nwealth (1989) 167 CLR 232, the High Court held that the Commonwealth nomination a nd hstmg of the Queensland Wet Tropics were not reviewable. Strickland v Roda Concrete Pipes Ltd (1971) 124 CLR 468.

18

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

A further issue which arose in the Tasmanian Dam case was whether the HydroElectric authority could properly be classified as a 'trading' corporation. The majority of the High Court decided that a corporation is a trading corporation if a substantial part of its activities are trading activities. Since a major function of the Hydro-Electric Corporation was the sale of electricity, it satisfied this test. The broad interpretation of this head of power has also been relied on by the Commonwealth as a mandate to pass a number of environmental statutes. The High Court has continued to take a broad view of the corporations power. In New South Wales v Commonwealth,93 the High Court by a 5-2 majority held that the Workplace Relations Amendment (Work Choices) Act 2005 was a valid use of the corporations power. Moreover, the High Court held that the corporations power is not limited to laws with respect to the external relationships of corporations, but can include relationships between corporations and actual or prospective employees. This decision makes it possible for the Commonwealth to control the environmental operations of corporations and to include environment conditions in contracts of employment.

The trade and commerce power Section Sl(i) of the Constitution confers power to make laws with respect to 'trade and commerce with other countries and among the States'. Since most manufacturing or resource extraction is for foreign or interstate trade, this power is of particular importance in respect to environmental management. The federal government used this power to intervene in relation to sand mining proposals on Fraser Island, off the coast of Queensland. The federal government invoked its power under the now repealed Environment Protection (Impact of Proposals) Act 1974 (Cth) to order an inquiry into the proposal. It subsequently refused to grant an export licence. Since there was no domestic market for rutile and zircon, this effectively blocked the mining proposal. The validity of the legislation was upheld by the High Court in Murphyores Inc Pty Ltd v Commonwealth. 94 Section Sl(i) was traditionally thought to be limited to foreign trade, since s 92 of the Constitution prohibits barriers on interstate trade. The High Court decision in Cole v Whitfield 95 has overturned the view that s 92 of the Constitution precludes the Commonwealth from regulating interstate trading activities. In the Whitfield case, the High Court made it clear that s 92 only has application in relation to laws which are 'protectionist' or 'discriminatory'. This decision opened up the possibility of federal control of interstate exports on environmental grounds.

Section 96 of the Constitution empowers the federal government to make grants to States, either absolutely or subject to conditions. This section could be used to further environmental objectives, for example, to require the States to adopt new pollution technology or standards. The federal government could also use moneys appropriated under s 81 of the Constitution to finance environmental projects within the States. Section 83 of the Constitution provides that such moneys can be expended for 'the purposes of the Commonwealth'. This raises the question whether 'purposes of the Commonwealth' are limited to powers conferred in the Constitution or whether it extends to any purposes which the Commonwealth may have in mind. In Victoria v Commonwealth (AAP case),96 a majority of the High Court upheld the validity of expenditure for purposes which were not otherwise within constitutional power. The High Court again took a broad view of Commonwealth spending power in Davis v Commonwealth,97 holding that the federal government is entitled to spend money for purposes which are incidental to its legislative powers. In Pape v Federal Commissioner of Taxation 98 the High Court clarified that the Commonwealth's power to spend appropriated funds must be found in the Constitution or in statutes made under it. This ruling has been applied in subsequent decisions of the High Court.99 Arguably, if these criteria were met, the federal government could use s 81 to by-pass the States and appropriate funds for national programs to other bodies within the States. It would not be forced to depend on the States to carry out its wishes, as it is in the case of a grant under s 96 of the Constitution. Consequently, it would seem that, given the range of existing Commonwealth powers in the Constitution and the broad interpretation of certain powers by the High Court, the lack of a specific head of power in relation to the environment is of little practical significance. Clearly, the Commonwealth has power to act to protect the environment in all significant areas. The real issue is whether it has the political will to do so.

The emergence of co-operative federalism Notwithstanding the broad mandate that the High Court has conferred on the federal government to control land-use decisions in the States, in the late 1980s the federal government decided to adopt a policy of co-operation, favouring consensus based arrangements with the States. According to Fowler,1°0 these arrangements fall into four categories: • broad strategic agreements which attempt to delineate areas of jurisdiction and responsibility such as the Intergovernmental Agreement on the Environment 1992; • national strategies which address specific areas, such as the National Strategy for Ecologically Sustainable Development 1992; • agreements establishing jurisdictions for environmental management, such as joint arrangements for the management of world heritage sites in Queensland and Tasmania; and • agreements for the adoption of national standards and guidelines in specific areas, for example, the national guidelines formulated by the National Environment

Financial powers The federal government could also make use of its extensive financial powers to legislate on environmental matters: the Commonwealth has a general taxing power, limited only by s 114 (taxes on State property) and the prohibitions against discrimination against States or parts of a State in s Sl(ii). The power may be exercised in such a way as to have an effect in areas where the federal government has no legislative power. The federal government could therefore use its fiscal powers to tax environmentally unsound products or grant deductions for money expended on developing new technologies to prevent pollution. 93 94 95

(2006) 229 CLR 1. (1976) 136 CLR 1. (1988) 165 CLR 360.

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96 97 98 99 100

(1975) 134 CLR 338. (1988) 63 ALJR 35. (2009) 238 CLR 1. Williams v Commonwealth (2012) 248 CLR 156 (William s (No 1)); Williams v Commonwealth (2014) 252 CLR 416 (Williams (No 2)). 'New National Directions in Environmental Protection and Conservation' in B Boer et al, Environmental Outlook (Federation Press, 1994) 113 at 115.

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Protection Council in relation to areas such as ambient air quality, and interstate movement of controlled waste. The agreements are all important for the development of environmental law and policy, but the most important initiative for delineating federal/State powers over the environment has been the Intergovernmental Agreement on the Environment.

The Intergovernmental Agreement on the Environment The Intergovernmental Agreement on the Environment (IGAE) purports to facilitate a co-operative national approach to the environment. The Agreement was concluded by the Commonwealth, States and the Local Government Association in May 1992. The inclusion of the Local Government Association recognised the emerging role of local government in environmental management in Australia. It was strongly supported by the States who regarded it as a means of restricting Commonwealth intervention in land-use planning in the States. The IGAE introduced three important initiatives. First, it attempts to delineate the respective roles and responsibilities of the Commonwealth, States and local government. The Agreement defines the roles of the respective governments in relation to environment protection in terms of a co-operative approach. It defines the Commonwealth's role as 'safeguarding and accommodating national environmental matters' and acknowledges the primary responsibility of the States for environmental matters within their own boundaries (paras 2.21, 2.2). However, it largely fails to resolve the demarcation issue, as it fails to define and clarify the ambit of 'national' environmental matters. The only environmental areas specified as falling under the exclusive jurisdiction of the Commonwealth are foreign policy, particularly in relation to the ratification and implementation of internal conventions; and the prevention of policies and practices by one State which could have significant adverse consequences in another (para 2.2). Commonwealth powers are further restricted by an undertaking to consult the States before ratifying an international convention (para 2.5.2).101 The IGAE also provides some mechanisms for avoiding duplication of functions between different levels of government and reducing the number of disputes on environmental issues (para 2.5). It envisages an accommodation of Commonwealth and State interests through Commonwealth accreditation of State practices and procedures. Second, the IGAE acknowledged the need for uniform environmental measures across Australia. It provided for the creation of the National Environment Protection Council with power to make National Environment Protection Measures (Sch 4). Third, the agreement recognised the need to adopt sound environmental practices and procedures as a basis for ecologically sustainable development. This required the effective integration of economic and environmental considerations in decision-making processes. The IGAE elaborates that ecologically sustainable development (ESD) can be achieved by the implementation of the precautionary principle, intergenerational equity, conservation of biological diversity and ecological integrity, and improved valuation pricing and incentive mechanisms. The undertaking in the IGAE to adopt these principles has had a significant influence on environmental legislation. There has been a proliferation of legislation throughout Australia incorporating these principles.102 101 102

This process has been elaborated by COAG, a Treaties Council and a Standing Committee on Treaties. See p 26, n 111.

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

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Commonwealth Councils The commitment to co-operative federalism has led to the Commonwealth government adopting a structure of Ministerial Councils and Advisory Councils to enable other jurisdictions, industry and NGOs to have a direct input into the formulation of environmental policy. It has been observed that the ability of these councils to make policy 'ranges from the deliberative to the merely consultative' but that even those councils whose role is merely consultative have some influence in setting the public policy agenda.103 The Council of Australian Governments

The Council of Australian Governments (COAG) is the principal ministerial council and was formed in 1992. It is constituted by the Prime Minister, the six State Premiers and two Territory Chief Ministers. COAG's role is to facilitate structural reform across Australian jurisdictions. It deals with a number of issues, including micro-economic reform, social and regulatory reform, and environmental matters. It has radically reformed intergovernmental environmental responsibilities. In 1997, COAG undertook a review of Commonwealth and State involvement in environmental issues with a view to furthering the policy of co-operative federalism which had begun in the IGAE. The review concluded with a Heads of Agreement on Commonwealth/State Roles and Responsibilities for the Environment. The Agreement acknowledged that the Commonwealth had a valid role in environment protection and specified the matters of 'national environment significance' for which the Commonwealth was responsible. It also provided for formal accreditation of State environmental assessment and decisionmaking processes, a matter which had stagnated under the IGAE. The review was endorsed by the COAG meeting in 1997. The federal government did not let matters remain at policy level, as it had done in the case of the IGAE, but acted immediately to reform existing environmental legislation to give effect to the COAG agreement. The outcome was the Environment Protection and Biodiversity Conservation Act 1999 (Cth). As mentioned in Chapters 7, 8 and 9 COAG has also played a significant role in restructuring the electricity market, providing the impetus for major water reforms, and developing natural resource management strategies. National Environment Protection Council

The National Environment Protection Council (NEPC) was established under the National Environment Protection Council Act 1994 (Cth) and complementary State legislation. The council comprises an Environment Minister from each jurisdiction in Australia. The council has the responsibility to develop National Environment Protection Measures (NEPMs). These measures are limited to pollution issues and waste disposal. The council has already made a number of measures which include the National Ambient Air Quality Guidelines and National Guidelines for Contaminated Sites (see Chapter 15). Ministerial and Advisory Councils

Initially, a large number of Ministerial Councils were also established by COAG. These included: the Ministerial Council on Energy; the Gene Technology Ministerial Council; 103

L Pearson, 'Intergovernmental Relations, Federalism and Environmental Policy', unpublished paper, Environmental Justice and The Legal Process Conference, Cape Town, 1998.

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the Murray-Darling Basin Ministerial Council; and the Natural Resource Management Ministerial Council. However, in 2011 and again in 2013, COAG decided to reduce and refocus the number of Ministerial Councils. From 30 June 2013, COAG replaced its 22 Standing Councils, Select Council and governance fora with eight Councils. For environmental law purposes the most significant will be the Energy Council.104 A small number of Ministerial Legislative and Governance Fora have also been established in specific areas to manage ongoing legislative and governance functions where they are outside the scope of Councils. These include the Australia and New Zealand Ministerial Forum on Food Regulation, the Legislative and Governance Forum on Gene Technology, and the Murray-Darling Basin Authority.105

Major influences on the development of Australian environmental law International environmental law Australia is a party to over 100 international conventions and agreements which either deal exclusively with environmental issues or impacts on the environment. It also maintains an active participation in a number of international environmental bodies such as the United Nations Environment Program and the United Nations Commission on Sustainable Development. Given Australia's significant international involvement, it is hardly surprising that developments in international environmental law have played, and continue to play, a considerable role in domestic policy and legislation. However, implementation of international obligations is heavily dependent on political and economic considerations. Ratification of international treaties is a function of the executive government under s 61 of the Australian Constitution, but international obligations accepted by Australia do not form part of Australia's legal system until they have been incorporated into national law by legislation. Australia's acceptance of its international obligations is complicated by the federal system and the policy of co-operative federalism. The Commonwealth has agreed to notify and consult with affected States in the 'negotiation, joining or implementation of international agreements', and to include them in negotiations if appropriate (IGAE para 2.3.2).106 This complicates and extends the process of ratifying a convention. Key multilateral conventions for the environment, which Australia has ratified, fall into four broad areas: biodiversity and conservation; hazardous substances; marine protection; and atmospheric pollution. The Commonwealth government has enacted a number of statutes to give effect to its obligations under these conventions. In some cases these statutes apply in the States while in other instances the States have enacted complementary legislation. Australia's international obligations on biodiversity and conservation have been consolidated in the Environment Protection and Biodiversity Conservation Act 1999 (Cth). Domestic legislation regulating international transfers of hazardous wastes is dealt with in the Hazardous Waste (Regulation of Exports and Imports) Act 1989. Australia has met its 104 105 106

Its terms of reference are still under development, see . See (accessed 26 October 2011). Elaborated in the revised 'Principles and Procedures for Commonwealth-State-Consultation on Treaties' (originally adopted in 1992).

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obligations under the Stockholm Convention on Persistent Organic Pollutants 2001 and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1998 through amendments to existing legislation, such as the Industrial Chemicals (Notification and Assessment) Act 1989 and the Agricultural and Veterinary Chemicals Act 1994. The federal government has also enacted a number of statutes to give effect to its international obligations relating to marine pollution. Australia has been successful in meeting its international obligations on ozone depleting substances and synthetic greenhouse gases. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth) deals comprehensively with these aspects. However, Australia's record on addressing climate change has been variable, as discussed in Chapter 7. In the first place, Australia only ratified the Kyoto Protocol in 2007 and then having established a Carbon Price Mechanism in 2011, under the Gillard government, this was promptly repealed by the Abbott Coalition government. There have been similar interrupted policy responses to encouraging renewable energy technologies in Australia. The influence of the above conventions and the principal domestic legislation giving effect to them will be discussed in more detail in later chapters. Environmental policy and legislation in Australia have also been heavily influenced by non-binding international agreements, in particular, the principle of ecologically sustainable development.

Ecologically sustainable development The concept of ecologically sustainable development (ESD) has had a significant impact on environmental management in Australia at a national, State and local level. Sustainable development may be defined as 'development which meets the needs of present generations without compromising the ability of future generations to meet their needs'. This definition, which has been adopted by the international community, first appeared in Our Common Future (the Brundtland Report). The 1987 Report, produced by the World Commission on Environment and Development, was the culmination of international research and investigation into the state of the global environment. The 21-member Commission, chaired by Norwegian Prime Minister, Gro Harlem Brundtland, heard evidence from public meetings held on all five continents over three years. The Report included environmental strategies for achieving sustainable development by the year 2000 and beyond, and was hailed by the United Nations Environment Program as the most important document of the decade. The 1992 United Nations Conference on Environment and Development (the Rio Conference) was a landmark in the development of sustainable development. The purpose of the Conference was to formulate strategies to achieve 'sustainable development'107 worldwide.

The Rio Declaration The principal objectives of the Rio Declaration were to establish 'a new and equitable global partnership through the creation of new levels of co-operation among States, key sectors of societies and people', and developing international agreements which 107

'Sustainable development' was defined in Our Common Future (1987 Report to the UN General Assembly by the World Commission on Environment and Development) as 'development which_ meets the needs of the present without compromising the ability of future generations to meet their own needs'.

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would 'respect the interests of all and protect the integrity of the global environmental and developmental system'. The Declaration proclaimed human beings, entitled to a healthy and productive life in harmony with nature, to be at the centre of concerns of sustainable development (Principle 1). It also reaffirmed the sovereign right of states to exploit their resources, while bearing in mind their obligation not to allow domestic activities to cause transboundary damage to the environment (Principle 2). Perhaps the most influential principles of the Declaration have proved to be the principles of intergenerational equity, the precautionary principle and the polluter-pays principle. Intergenerational equity requires current rates of development to equitably meet the development and environmental needs of present and future generations (Principle 3). The precautionary approach is that, 'where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation' (Principle 15). Finally, the polluter-pays principle envisages the 'internalisation of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution (Principle 16). Other enduring Rio principles are poverty alleviation (Principle 5), the common but differentiated responsibilities of countries to achieve sustainable development (Principle 7), capacity building and technology transfer (Principle 9), and public participation in decision-making (including women and Indigenous people) (Principles 10, 20 and 22). States were also called on to enact effective environmental laws (Principle 11), including the provision of compensation for the effects of pollution and other forms of environmental degradation (Principle 13), environmental impact assessment (Principle 17), and effective legal remedies (Principle 10).

Agenda 21 Agenda 21 sets out a number of programs which establish the basis for action, objectives, activities and means of implementing the agreements reached at the Rio Conference. It sets out the challenges which the world needs to confront and deal with in the 21st century, and advocates strongly the development of global partnerships including the involvement of international, regional and sub-regional organisations. Agenda 21 states that considerable financial resources will need to be devoted to achieving sustainable development in developing countries, while economies in transition will need to be given special attention. The program areas of Agenda 21 include: social and economic dimensions, the conservation and management of resources, strengthening the role of major groups and means of implementation.

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WSSD which was the Plan of Implementation of the World Summit on Sustainable Development.108 In 2012 the UN Conference on Sustainable Development, known as the Rio+ 20 Conference, was held to assess progress, identify gaps and recommit to implementing strategies for sustainable development. Two major topics were considered: the green economy in the context of sustainable development; poverty eradication; and the institutional framework for sustainable development. The Conference resulted in a non-binding outcome document, The Future We Want, which contains practical measures for implementing sustainable development goals. Guidelines were adopted for green economy policies and a decision was taken to develop Sustainable Development Goals (SDGs) building on the Millennium Development Goals.109 The 2015 SDGs110 recognise that poverty eradication, promoting sustainable patterns of consumption and production, and protecting and managing the natural resource base of economic and social development are intrinsic to sustainable development. The principles of justice, equity and inclusion are to benefit children, youth and future generations without discrimination of any kind. The principle of common but differentiated responsibilities is reaffirmed as a guiding principle. The SDGs are accompanied by targets for which indicators will be developed which are action oriented, global in nature and universally applicable. These will seek to extend the vision of the Millennium Development Goals which have not yet been achieved. There are 17 SDGs each of which is accompanied by a number of Goals. In broad terms the SDGs relate to: ending poverty (SDG 1); ending hunger through food security, improved nutrition and sustainable agriculture (SDG 2); ensuring health (SDG 3); education (SDG 4); access to water and sanitation (SDG 6); and modern energy systems (SDG 7); as well as full productive employment and decent work for all (SDG 8). In addition, there is a requirement to take urgent action to combat climate change and its impacts (SDG 13), including through building resilient infrastructure (SDG 9), and making cities and human settlements safe, resilient and sustainable (SDG 11). From an environmental perspective, the oceans and marine resources must be conserved through sustainable utilisation (SDG 14), while terrestrial ecosystems should be protected, restored and sustainably utilised (SDG 15). Forests must be sustainably managed, desertification combated, and land and biodiversity loss halted and reversed (SDG 15). Gender equality must be ensured (SDG 5) and inequalities within and among countries reduced (SDG 10), while access to justice and accountable and inclusive institutions at all levels must be provided (SDG 16). Peaceful and inclusive societies for sustainable development and sustainable consumption and production patterns must be ensured while strengthening implementation and the global partnership for sustainable development (SDG 17).

Post Rio Milestones in Sustainable Development In 2002, the World Summit on Sustainable Development (WSSD) was held to evaluate and build on initiatives taken at the United Nations Conference on Environment and Development (the Rio Conference). The aim of the conference was to reconcile development and economic growth. The WSSD became known as the 'Rio +10' Conference. Leading up to the WSSD, the UN Secretary-General, Kofi Annan, proposed the development of the WEHAB initiative which focused on five key areas - namely, Water, Energy, Health, Agriculture and Biodiversity. These themes were regarded as integral to a coherent international approach to the implementation of sustainable development. These initiatives were specifically incorporated into the final outcome of the

ESD in Australia Australia participated in the United Nations Conference on Environment and Development 1992 (UNCED) and adopted the Rio Declaration on Environment and Development and Agenda 21. Much of Australia's domestic environmental policy on sustainable development reflects the influence of these documents. 108 109 110

See (accessed 1 September 2006). See (accessed 1 December 2015). See (accessed 1 December 2015).

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The formulation of the precautionary principle in the Rio Declaration has been adopted in many national jurisdictions, including Australia. In Australia, the precautionary principle is generally expressed as a key component of ecologically sustainable development and has been incorporated as part of the national policy on the environment. In December 1992, six months after UNCED, each tier of government in Australia adopted the National Strategy for Ecologically Sustainable Development. The inclusion of the prefix 'ecologically' before the term 'sustainable development' was an important Australian innovation. The National Strategy committed all levels of Australian government to the promotion of 'development that improves the total quality of life, both now and in the future, in a way that maintains the ecological processes on which life depends'. The Strategy also established an Intergovernmental Committee to supervise the implementation of ESD within each jurisdiction. The Intergovernmental Agreement on the Environment 1992 also includes a commitment to ESD principles. While there is no formal or compulsory implementation strategy for ESD principles, they have been incorporated in a large number of federal, State and Territory statutes.111 Australian courts are increasingly applying ESD principles, particularly the precautionary principle. The seminal case on the precautionary principle is Leatch v Director-General of National Parks and Wildlife Service,112 where Stein J applied the principle to refuse a licence 'to take or kill' an endangered species (the Giant Burrowing Frog) in the context of a development proposal for a link road. The National Parks and Wildlife Act 1974 (NSW), under which the Director-General of the National Parks and Wildlife Service granted the licence, had no express provision requiring consideration of the precautionary principle.113 His Honour nevertheless concluded that: [T]he precautionary principle is a statement of commonsense ... It is directed towards the prevention of serious or irreversible harm to the environment in situations of scientific uncertainty. Its premise is that where uncertainty or ignorance exists concerning the nature or scope of environmental harm (whether this follows from policies, decisions or activities), decision-makers should be cautious.114 Stein J held that, since the evidence left in doubt key questions as to the populations, habitat and behavioural characteristics of the frog, he was unable to conclude with any degree of certainty that a licence should be granted. Initially, although the Land and Environment Court endorsed the precautionary principle as a relevant consideration in environmental decision-making, it was generally not decisive in influencing the outcome of the case.115 The precautionary principle was elaborated by Preston J in Telstra Corporation Ltd v Hornsby Shire Council. 116 This is an important judgment, as it not only analyses the precautionary principle and identifies the process for its application, but also emphasises that the principle operates to shift the evidentiary burden of proof. Consequently, once 111 112 113 114 115

116

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P Stein, 'Are Decision-makers too Cautious with the Precautionary Principle' (2000) 17 EPLJ 3, in an appendix lists 119 statutes which incorporate ESD principles. (1993) 81 LGERA 270. The Act has since been amended to adopt ESD principles as one of its objectives: National Parks and Wildlife Act 1974 (NSW) s 2A(2). (1993) 81 LGERA 270 at 282-283. See Nicholls v Director-General of National Parks and Wildlife Service (1994) 84 LGERA 397; Greenpeace Australia Ltd v Redbank Power Co (1994) 86 LGERA 143; see also R Lyster, 'Friends of Hinchinbrook v Minister for the Environment: The relevance of the precautionary principle' (1997) 14 EPLJ 390. (2006) 146 LGERA 10.

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a threat of serious or irreversible harm has been established, the precautionary principle operates to create the assumption that the threat is certain, requiring action on the part of the decision- maker. This is a different approach from that of Stein J in the Leatch case which merely required the decision-maker to be cautious, and paved the way for the principle to play a more prominent role in judicial decision-making.117 This is facilitated to some extent by the fact that many environmental statutes, particularly in New South Wales, now expressly include ESD principles as one of their objectives. ESD principles now occupy a pre-eminent position in judicial decision-making in New South Wales. For example, it is now clear that in respect of a consent authority making a decision in accordance with s 79C of the EPAA, and a court hearing a merits appeal from such a decision, consideration of the public interest ins 79C(l)(e) embraces ESD in cases where principles relevant to those considerations arise.118 There was some uncertainty as to the applicability of the public interest and ESD principles when assessing decisions under the now repealed Pt 3A of the EPAA. In Gray v Minister for Planning119 Pain J held that a failure to consider ESD principles rendered the decision void and of no effect. A similar view was taken in Walker v Minister for Planning.120 However, the NSW Court of Appeal cast some doubt on the Gray case and reversed the decision in Walker, stating that good decision-making would require the Minister to consider whether any of the objects of the Act (including ESD) was relevant, and to take into account those considered relevant. However, an erroneous decision by the Minister would not necessarily render the decision void. Hodgson JA did, however, concede that: [T]he principles of ESD are likely to come to be seen as so plainly an element of the public interest, in relation to most if not all decisions, that failure to consider them will become strong evidence of failure to consider the public interest and/or to act bona fide in the exercise of powers granted to the Minister, and thus become capable of avoiding decisions. It was not suggested that this was already the situation at the time when the Minister's decision was made in this case, so that the decision in this case could be avoided on that basis; and I would not so conclude.121 This suggests that the court may have considered that it was premature to regard ESD as a mandatory consideration at that point in time. Given the strong legislative and judicial support for ESD principles since the Walker appeal in 2006, the court may now reach a different decision. This view is supported by Biscoe J in Aldous v Greater Taree City Council122 who states as follows: This is a timing point. As I understand it, if the concept plan approval in Walker had not been given in 2006 but at some later time, there would be a strong prospect that failure to consider the principles of ESD would avoid the decision because of a growing public perception that ESD is plainly an element of the public interest. 117

118

119 120 121 122

See further Hon JB Preston, Chief Judge, Land and Environment Court of NSW, 'Jurisprudence on Ecologically Sustainable Development; Paul Stein's Contribution', unpublished paper, 10 December 2009, ; G Bates, Environmental Law in Australia (8th ed, LexisNexis, 2013) at 248, fn 96, notes that a search of databases of Australian courts and tribunals in 2009 indicated that the precautionary principle had been raised in 315 cases throughout Australia. BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; Port Stephens Pearls Pty Ltd v Minister for Infrastrncture and Planning [2005] NSWLEC 426; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Aldous v Greater Taree City Council [2009] NSWLEC 17. (2006) 152 LGERA 258. (2007) 157 LGERA 124. Minister for Planning v Walker (2008) 161 LGERA 423 at 454 [55]-[56]. [2009] NSWLEC 17 at [28].

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However, the Court of Appeal decision in Walker is largely irrelevant in view of the repeal of Pt 3A of the EPAA unless the same structure is retained for some types of critical State significant infrastructure development. An interesting feature of the judgment was its endorsement of ESD principles as a mandatory consideration in merit appeals under the 'public interest' provision ins 79C(l)(e) of the EPAA.123 ESD principles have a wider application than their role in planning decisions. Preston J has pointed out that prior environmental impact assessment and approval underpin environmental statutes and that an offence against these provisions undermines the objects of environmental statutes, including ESD.124 In Bentley v BGP Properties Pty Ltd1 25 (discussed in Chapter 9) Preston J emphasised that the objects of the National Parks and Wildlife Act 1974 (NSW) are to be achieved by applying the principles of ecologically sustainable development, as set out in s 2A(2) of the Act. His Honour stated that prior environmental impact assessment and approval are key means of achieving ESD and that 'the conservation of biological diversity and ecological integrity is one of the pillars of ecologically sustainable development'.126 His Honour also noted that the requirement for prior assessment and study of the impacts of a proposed action likely to damage threatened species, populations or ecological communities is an important component of the precautionary principle,127 intergenerational equity,128 and can facilitate the internalisation of external environmental costs.129 In this case, the defendant was convicted of picking a threatened species contrary to s 118A(2) of the National Parks and Wildlife Act, fined the amount of $40,000 and ordered to pay the prosecutor's costs. This was the first instance in New South Wales in which ESD principles have been referred to when convicting a person of a criminal offence.130

Economic rationalism In addition to the influence exerted by the principles of ESD on Australian governments, the governments have shown an increasing interest in recent years to use the 'market' as a key aspect of environmental management. Before this, environmental management rested primarily on a form of regulation known as 'command-and-control' regulation. Essentially, 'command-and-control' regulation envisages the enactment of a statute, which prohibits the undertaking of an environmentally harmful activity without the granting of a permit, or licence, by a consent authority. Conditions may be attached to the permit which constrains the undertaking of the activity within the confines of the imposed conditions. Traditionally, 'command-and control' statutes have governed the regulation of every type of environmental problem including planning, pollution, the conservation of biodiversity and natural resource management. Recently, while 'command-and-control' 123 124

125 126 127 128 129 130

(2008) 161 LGERA at [42]-[43]. B Preston, 'Principled Sentencing for Environmental Offences' in L Paddock, D Qun, L Kotze, D Markell, K Markowitz and D Zaelke (eds), Compliance and Enforcement in Environ111ental Law (Edward Elgar Publishing Ltd, 2011) at 323. (2006) 145 LGERA 234. Ibid at 243 [58]. Ibid at 246 [68]. Ibid at 246 [69]. Ibid at 246 [70]. See also Plath of the Department of Environ111ent, Climate Change and Water v Lithgow City Council [2011] NSWLEC 8 at [93].

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regulation still plays a vital role in environmental management, there is a tendency to introduce market mechanisms to achieve environmental outcomes. The economic rationalist theory, which underpins the move towards the 'market', is based on neoclassical economics which claims that economic resources are better allocated through unfettered market forces than by government intervention. Coupled with this economic philosophy is a political philosophy that questions the nature and proper role of the state, favouring a minimal or residual state. There is a loss of faith in government both as a regulator and as a service provider. Neoclassical economics promises a smaller more efficient state in keeping with the fundamental tenets of liberal political philosophy. Liberalism promotes 'rationality, individuality, equality, liberty from interference from others or the State unless justified, the availability of legal rights, and the protection of the private sphere of life which is conventionally deemed to be "not the State's interest".'131 Under the neoclassical paradigm, it is expected that social needs will be met when the market is allowed to allocate public goods, without interference from the State, which is regarded as an impediment to the smooth allocation of resources. Within this paradigm, it is believed that market mechanisms have a number of advantages over traditional command-and-control strategies. With regard to allocation, market forces are likely to direct resources in a cost-effective manner at a lower overall cost while maintaining environmental quality. Market mechanisms relieve the state of much of its responsibility for decision-making. Rather, it is individual operators and investors who will regulate their activities to best position themselves in the market. For environmental lawyers, the critical question is whether or not the 'market' is likely to result in the achievement of ecologically sustainable development. As the ensuing analysis demonstrates, there are numerous concerns about the move to the 'market'.

Creating markets to manage natural resources One of the most interesting aspects of a new regulatory philosophy for managing natural resources is the move towards using 'markets' in the areas of water, carbon, renewable energy, salinity and biodiversity.132 The creation of such markets is evident in international instruments like the Kyoto Protocol, which now provides for the establishment of an international emissions trading scheme for greenhouse gases. Closer to home, the Australian government established a renewable energy trading scheme in 2000 and a carbon price mechanism (CPM) in 2012. However, the CPM was abolished by the Abbott government in 2014 (see Chapter 7). As discussed in Chapter 8, COAG has long been committed to a national water trading market which has been given further impetus by the Water Act 2007 (Cth) as amended in 2008. The NSW and ACT governments, meanwhile, established a Greenhouse Benchmarks Scheme where the trading of greenhouse abatement certificates was an integral aspect of the scheme. As discussed in Chapter 7, this scheme was subsumed under the Commonwealth's CPM and has not been reinvigorated following the repeal of the CPM. More recently, State governments have established energy efficiency trading schemes (see Chapter 7). Furthermore, an interesting, if controversial, development has been the establishment of biodiversity trading schemes in New South Wales and Victoria (see Chapter 10). 131 132

H Barnett, Introduction to Feminist Jurisprudence (Cavendish Publishing, 1998) at 121. See R Lyster, '(De)regulating the Rural Environment' (2002) 19 EPLJ 34.

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A market in ecosystem services In addition to these initiatives is an interest in using markets to properly value ecosystem serv~ces. Ecosystem services have been defined as 'the conditions and processes through which natural ecosystems, and species that make them up, sustain and fulfil human life'.133 They include the provision of goods134 as well as regenerating processes.135 The services, which are regarded by economists as natural capital, supply 'for free' a stream of goods and other support services similar to those supplied by human and hum_an-made capital. Heal et al1 36 claim that there are two reasons that our ecosystem serv~ces are threatened. These include the unprecedented rate at which humanity is altermg natural e~osystems and the processes that they control, and the failure of policymak~rs to recog~1se_the natural capital of these services. The result is that the ecosystem services underpmnmg the production of goods have no market value due to the fact that there is no market to capture and express their value. There are also no efficient price mechani~~s to ~ignal sc~rcity or degradation of the services. A further difficulty is that, as classic pubhc goods, the ecosystem services cannot be exclusively controlled. On~ of the keys to establishing markets in ecosystem services is to recognise the many different goods and services delivered by a single ecosystem and the interaction b~t~een ~hem. A single system may deliver carbon storage and sequestration services, b10d1vers1ty, salinity and water purification services. According to Heal et al, policymakers need to ask themselves three questions: • What combinations of goods and services can be produced and what are the tradeoffs among services? • Wh~t are the policy variables that deliver different combinations of the outputs? • Which of these alternative product mixes is best for society?137 Before making any firm decisions, an explicit accounting of ecosystem services is required as well as the impacts on those services of alternative courses of action.13s . Australian governmer:its at the Commonwealth and State levels have already established schemes to recogmse and create markets in ecosystem services in the areas of salinity management, native vegetation conservation and biodiversity protection. These are discussed in Chapters 9 and 10.

Efficiency is achieved in a competitive market where economic exchanges continue until it is impossible to make anyone better off without making somebody worse off. However, this approach only examines the allocation of resources, not property and income distribution. By taking the original distribution of property rights as a given, efficiency provides a limited performance principle for environmental and social policymaking.140 Environmental organisations, Aboriginal people and others are unlikely to have the same bargaining power in the market as other well-resourced purchasers of environmental property rights. In addition, markets do not exercise caution or intervene to redress imbalances in the public interest, neither do they do it to protect discrete interests. As neoclassical economic theory insists, the market will allocate resources to the highest value use, not necessarily to those most in need of it. One of the mechanisms that corrects a potentially detrimental allocation of resources, like water, in a command-and-control framework is the opportunity for public participation. Very often, natural resource legislation allows for notice and comment procedures so that objections to applications for allocations, or development, may be made by those affected. However, in a market the only type of participation that is recognised is financial participation by those who can afford to enter the market. Clearly, the goal of efficiency, well served by the market, is often at odds with the principle of equity. Problems with measuring ecosystem services In order for a market in ecosystem services to be established, each service needs to be identified, measured, endowed with property rights and priced in the marketplace. This acknowledges the existence and value of the service and allows buyers, willing and able to do so, to trade in the resource. This much is clear from all of the major policy documents that have been developed in recent years in Australia proposing recourse to the market as a natural resource management strategy. Experience with wetland mitigation trades in the United States has shown that there are considerable difficulties associated with such assumptions. As Boyd et al1 41 note: The exchange of complex environmental assets creates significant challenges for implementation, however. In particular, ecosystem exchanges, such as wetland mitigation trades, require more than good ecological analysis. They require the conscientious application of economic analysis in order to guarantee that trades preserve what is valuable about ecosystems. In most cases, regulators are not adequately equipped, financially or technically, to judge the relative value of environmental assets to be exchanged in such markets. Until these challenges are met, badly regulated ecosystem trades may undermine, rather than advance, the achievement of environmental and social welfare objectives.142

Criticisms of markets in natural resources and ecosystem services Eckersely notes that a market in various natural resources: enables environmental assets to be put to their highest valued combination of uses. We may not achieve an optimal environmental outcome, but this is not the point: rather, the concern is simply to achieve an optimal allocation of environmental resources.139 133

134 135 136 137 138 139

G H~al, GC Daily, PR Ehrlich, J Salzman, C Boggs, J Hellmann, J Hughes, C Kremen, T Ricketts, 'Protecting Natural Capital Through Ecosystem Service Districts' (2001) 30 Stanford Environmental LJ 333 at 336. Such goods include food, pharmaceuticals, durable materials, energy, industrial products and biodiversity: ibid at 337. These include cycling and filtration processes, translocation processes, stabilising processes, and hfe-fulfillmg functions: ibid. Ibid at 340-341. Ibid at 345. Ibid at 360. R Eckersley, 'Rationalising the Environment: How Much AM I Bid?' in S Rees, G Rodley and F Stilwell (eds), Beyond the Market: Alternatives to Economic Rationalism (Pluto Press, 1993) 237 at 242.

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Most Australian policy documents which promote the use of markets to manage natural resources do so with reference to the success of air emissions trading programs under the Clean Air Act 1990 in the United States. However, as Boyd et al note, '[a]ir emission trading differs significantly from trades involving more complex, heterogeneous, environmental assets such as habitat, water quality, and biodiversity'.143Ecosystem trading 140 141

J Boyd, D King and LA Wainger, 'Compensation for Lost Ecosystem Services: The Need for Benefit-

Ibid.

142 143

Based Transfer Ratios and Restoration Criteria' (2001) 20 Stanford Environmental LJ 393. Ibid at 394. Ibid.

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systems require complex bio-physical comparisons and trade-specific environmental valuation. Consequently, there are significant legal, economic and practical implications for ecosystem trading. While the social costs of air pollution from different sources and the attendant environmental damage caused by them are relatively easy to compare, this is not the case with ecosystem services. Damage to land, a watershed or species is difficult to compare and rank since they are all highly idiosyncratic. This is because the social value of habitat or a species depends on location in the landscape, relationship to human activities and changes over time.144 Boyd et al conclude that, '[w]ithout these environmental asset valuation methods, confidence in ecosystem exchange is impossible. In short, a ton of sulphur dioxide (SOJ may be a ton of S02 anywhere, but an acre here may not be worth an acre elsewhere'.145 The principal concern is that in practice regulators tend to value the strictly biophysical or functional site characteristics rather than valuing the ecosystem services. While biophysical characterisation is fundamental to any ecosystem evaluation they do not value the social value of an ecosystem. This is a major weakness of the wetland mitigation scheme in the United States as wetland mitigation projects, and particularly off-site mitigation projects, involve the exchange of one wetland for another, either explicitly or implicitly. While an extensive review of the essential components of ecosystem service valuation is beyond the scope of the present discussion, the following basic principles of valuation are instructive. In addition to understanding the contribution of inputs to outputs, ecosystem services must be valued by paying attention to: scarcity and substitution; complementary goods and services; and marginal analysis. Greater scarcity and a relative lack of substitutes will increase the value of ecosystem services. Also the value of ecosystems increases when their complementary goods and services are accurately assessed and when the combination of these services is adequately appreciated. Marginal analysis, meanwhile, requires the realisation that 'the value of a wetland acre or individual in a biotic population is a decreasing function of the number already protected. In other words, the value of the only existing ... wetland is greater than the value of the millionth'.146 In addition to understanding the basic principles of service valuation, it is necessary for regulators who are establishing markets to understand the temporal and spatial aspects of the analysis. Temporal analysis of ecosystems must demonstrate sensitivity to the fact that ecosystems provide benefits over lengthy periods of time, while spatial analysis requires an understanding that the services delivered by ecosystems depend on the landscape context in which those functions and services arise.147 Meanwhile, the environmental concerns about markets in ecosystem services are numerous. If trading commences in services that have not been appropriately valued by agencies there could be serious environmental damage. The risk of inappropriate valuation has been clearly enunciated by Boyd et al. There is the further risk that offsets will be allowed to occur where there is no clear appreciation of the value of services that will be lost. How then can agencies determine what type of ecosystem should be established to replace that which will be destroyed during the offset process? 144 145 146 147

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Ibid at 395. Ibid. Ibid at 405-406. Ibid at 406-407.

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It is not suggested that the search for alternative methods of regulation be abandoned. However, policy-makers in Australia need to ensure that, before rushing to the market, they are confident that the services that are traded are properly evaluated and accounted for. They need to consider whether natural resource markets need to be regulated so as to achieve ecologically sustainable outcomes. Policy-makers need to make explicit the links between natural resources law, which is essentially command-and control in nature, and natural resource markets. They need to consider also whether existing law needs to be amended, or new laws enacted, to support the market.148 These considerations underpin a belief that the government should retain ultimate political responsibility for the ecologically sustainable management of Australia's natural resources, albeit while it establishes an appropriate mix of command-andcontrol and market instruments.

National Competition Policy in Australia (NCP) In addition to adopting markets to manage natural resources, economic rationalism has also been responsible for a move in Australia towards deregulation, corporatisation or privatisation, and increased competition. These processes need to be assessed in relation to their consequences for ecologically sustainable development. The origins of the processes may be found in 1992, when COAG commissioned an Independent Commission of Inquiry into National Competition Policy chaired by Professor Fred Hilmer (Hilmer Inquiry). The deregulation principle was enthusiastically endorsed by the Hilmer Inquiry which recommended specifically that legislation be reviewed to strategically surrender regulation in specific areas and to introduce innovative forms of regulation. Acting on the recommendations of the Hilmer Inquiry, COAG signed three agreements: the Competition Principles Agreement (CPA); the Conduct Code Agreement; and the Agreement to Implement the National Competition Policy and Related Reforms in 1995. The agreements were designed to: improve efficiency of the economy through competition; remove regulatory impediments to productivity; and ensure that public sector businesses operate along the same market and profit oriented lines as the private sector. The reforms can be outlined as: the review and reform of all laws which restrict competition by the year 2000; the restructuring of public sector monopoly businesses covering the electricity, gas, water and road transport industries; the introduction of competitive neutrality so that public businesses do not enjoy unfair advantages and to extend the operation of Pt IV of the then Trade Practices Act 1974 to government business enterprises; to facilitate access to nationally significant infrastructure services to promote competition in related markets;149 and the extension of price surveillance to government business enterprises which retain a market monopoly.150 Following the signing of these agreements, regulation review units were set up at the Commonwealth and State levels to reduce regulatory barriers to competition. 148

149 150

See, for example, the Carbon Rights Legislation Amendment Act 1998 (NSW), which amends the Conveyancing Act 1919 (NSW) to recognise that a right associated with carbon sequestration from the atmosphere may be a species of forestry right; see also the Protection of the Environment Operations Amendment (Tradeable Emission Schemes) Act 2000 (NSW). See Pt IIIA of the Competition and Consumer Act 2010 (Cth) which gives a firm the right to require another firm to give it access to certain infrastructure it owns. 'National Competition Policy - Some Facts', at 1.

34

OVERVIEW OF ENVIRONMENTAL LAW IN AUSTRALIA

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

In New South Wales, for example, the government developed the NSW Government Policy Statement of Legislation Review. In 1997, guidelines entitled Consulting on Reform: A Consultation Framework for Review of Anti-Competitive Legislation were developed to ensure that the reviews were conducted in an open and transparent manner allowing for public participation. In addition, all proposals for new legislation, or for amendments to existing statutes, are required to take account of NCP and are reviewed by officials in the Cabinet Office. The Commonwealth agreed at COAG to make special payments in the order of $16 billion over 1997-98 and 2005-08 to States and Territories on satisfactory progress in implementing NCP reforms. Eligibility for these payments was assessed by the National Competition Council (NCC) in June 1997, 1999 and 2001.151 The legislation review deadline for all jurisdictions to complete legislation reviews was 30 June 2002.152

of Parliament) or a departmental structure to a company structure (in conformity with Companies legislation applying to the private sector)'.155 Such a corporation is known as a government business enterprise (GBE), or State Owned Corporation (SOC), and may be incorporated under the Corporations Act 2001 (Cth). The government usually has a controlling or substantial interest.156 Full privatisation occurs when the SOC is sold to private investors, involving a total divestment of government ownership and responsibility for the operations of the corporation. Where public sector businesses, like Sydney Water (discussed in Chapter 8), have been corporatised, the corporatised entity has generally been expected to comply with community service objectives (CSOs). For example, the State Owned Corporations Act 1989 (NSW) (SOCA) provides that the principal objectives of State Owned Corporations are: (a) to be a successful business and, to this end: (i) to operate at least as efficiently as any comparable businesses, and (ii) to maximise the net worth of the State's investment in the SOC, and (b) to exhibit a sense of social responsibility by having regard to the interests of the community in which it operates, and (c) where its activities affect the environment, to conduct its operations in compliance with the principles of ecologically sustainable development contained in section 6(2) of the Protection of the Environment Administration Act 1991, and (d) to exhibit a sense of responsibility towards regional development and decentralisation in the way in which it operates. (2) Each of the principal objectives of a SOC is of equal importance. (ss 8, 20E)

Review of laws that restrict competition

Under cl 5 in the Competition Policy Agreements (CPA), all governments agreed that legislation should not restrict competition unless it can be demonstrated that the benefits of the restriction to the community outweigh the costs, and the objectives of the legislation can only be achieved by restricting competition. The NCC has indicated the matters which can be taken into account in establishing interventions in the public interest. Clause 1(3) of the CPA lists several issues that can be taken into account including: government legislation and policies that relate to ecologically sustainable development; social welfare and equity considerations including community service obligations imposed on government business enterprises; economic and regional development, including employment and investment growth; and the efficient allocation of resources.153 Despite the assurance in cl 1(3) of the CPA, land use and natural resource approvals systems have been prime targets for deregulation under the review process. 154 Environmental regulation is by its very nature a 'regulatory impediment to productivity' and may interfere with the 'efficient allocation of resources'. Although governments are permitted to take ecologically sustainable development into account during the process of regulation review, conventional environmental regulation is under the spotlight as never before. Competition principles have infiltrated the deliberations of intergovernmental policy-makers, like COAG, and have influenced the development of natural resource strategies adopted at both the Commonwealth and State levels of government. Restructuring of public sector monopoly businesses

In line with national competition policy, the majority of public sector monopoly businesses in Australia have either been corporatised or privatised. The corporatisation of publicly owned entities, like airlines, banking, post, telecommunications and utilities (electricity, water and gas), is often a precursor to full privatisation. Corporatisation involves 'converting agencies from a statutory authority structure (established by an Act 151 152 153 154

Ibid at 4. Council of Australian Government's Meeting, 3 November 2000, Canberra, Communique, Attachment B. Ibid at 7. See, for example, the 1997 amendments to the NSW EPAA which introduced the concepts of 'integrated development' and 'accredited certifiers' as well as the overhaul of Commonwealth environmental impact assessment procedures under the EPBCA to avoid duplication of State and Commonwealth procedures.

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Social impacts of restructuring

In keeping with the tenets of sustainable development which seek to integrate economic, social and environmental considerations, it is important to consider the social implications of restructuring. Consumer concerns about privatised and corporatised utilities are numerous. Will the services so crucial to human health and well-being be provided to all, without discrimination? While this may be a goal of public service providers, the privatised or corporatised utilities have a profit motive and may neglect the needs of less lucrative 'clients'. Will the service itself, and the quality of the service, be maintained so as not to impact on human health and well-being? How will the services be provided - on the basis of a pre-paid meter, or by payment of an account at regular intervals? What are the consequences of not buying tokens to insert in the meter, or of mounting debt and an inability to service the debt? When can the service provider disconnect the 'consumer' from the service? The question is whether or not CSOs of the type mentioned above are enforceable. The reality of this concern was illustrated in Yarmirr v Australian Telecommunications Corporation. 157 Here a representative of an Aboriginal community sought review of the corporatised Telecom's failure to provide the community with interim telephone services. A plan to extend standard telephone services to their remote area had been substantially delayed. They claimed that the provision of a satellite telephone service 155

156 157

H Michael, 'Statement before the Industrial Relations Commission of NSW (IRC No 789 of 1993)', cited by Wettenhall Roger, 'Corporations and Corporatisation: An Administrative History Perspective' (1995) 6 PLR 7 at 11. Ibid at 19. (1990) 96 ALR 739.

36

would alleviate difficulties which they experienced with a high frequency radio telephone, subject to provision of the standard service at a later date. Section 27(4) of the Australian Telecommunications Corporation Act 1989 (Cth) provided that: Telecom shall ensure: (a) that, in view of the social importance of the standard telephone service, the service is reasonably accessible to all people in Australia on an equitable basis, wherever they reside or carry on business. The Aboriginal community's attempt to enforce the community service obligation in s 27(4) of the Act did not meet with success in the Federal Court. Burchett Jheld that no error of law had been made and that the discharge of the obligations required Telecom to determine priorities in pursuing each ideal with respect to the services made available to communities around Australia. Meanwhile, there have been numerous examples of corporatised or privatised utility failure. In Melbourne, the explosion of a temperature valve at the Longford gas station, operated by the private utility, Esso, left Melbournians without an energy source for weeks. The explosion also resulted in the death of, and horrific injuries to, workers.1 58 In New Zealand, the corporatised Mercury Energy was responsible for a total power failure in the central business district of Auckland due to serious infrastructural collapse. The charge levelled at all of these utilities is that they allowed profit motives to override all other concerns including safety and consumer welfare. Environmental impacts of restructuring

Concern about the environmental impacts of the restructured National Electricity Market is discussed in Chapter 7. However, it is also possible that utility failure can impact on the environment in a direct way. Gas explosions at facilities and failure of electricity supplies or sewage systems create obvious environmental hazards. It should also be remembered that the McClellan Inquiry which investigated the circumstances surrounding the Sydney Water 'boil water' alerts in 1998 (discussed in Chapter 8) found that Australian Water Services (Pty) Ltd (AWS) was selected as the preferred tenderer to operate the plant because it offered the lowest price - $40 million less than the nearest tender price. This was in spite of the fact that it had not proved its treatment process to the satisfaction of the technical assessment team. In addition, the Inquiry found that the Water Board undertook the design and tender stage of the project before publishing an environmental impact statement (EIS). This was despite the fact that the Water Board, before its corporatisation as Sydney Water, was required under provisions of the EPAA to prepare an EIS before deciding whether to proceed with the development of improved facilities by the private sector. By the time the EIS process was finalised, the preliminary contractual arrangements had imposed considerable time cost pressures on the Board. At that stage, it was unlikely that the project would not proceed, irrespective of the outcome of the EIS.

158

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Employees, and former employees, interviewed about the activities of Esso all pointed to the fact that the plant was inadequately maintained, that staff training to deal with accidents was deficient, that staff had been cut back and that incidents at the plant were not properly accounted for in accordance with risk management and accounting procedures. It was also alleged that both with respect to this incident, and another in Hong Kong, vital information regarding the accidents was withheld from Commissions and Coronial Inquiries: The 7.30 Report, Australian Broadcasting Corporation, 3 May 1999.

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The highwater mark of economic rationalism: 'cutting red tape' and the Freedoms Inquiry Economic rationalism and antagonism to environmental regulation reached a highwater mark under conservative Coalition governments including at the federal and State levels in recent times. For example, the Australian government under then Prime Minister Tony Abbott instituted the 'Cutting Red Tape' initiative.159 Under this program, the Regulator Performance Framework indicates the Australian government's commitment 'to reduce the cost of unnecessary or inefficient regulation imposed on individuals, business and community organisations by at least $1 billion a year', as well as repealing Australia's carbon price mechanism. It goes without saying that environmental regulation is regarded by those who resist regulation as an unnecessary and inefficient burden on their businesses. Ten principles for Australian government policy-makers were also released. It is beyond the scope of this book to enumerate the countless examples where environmental regulation has been watered down, or even eviscerated, to smooth the path for business - including the minerals and extractive industries. Yet another example of the government's determination to reduce environmental regulation is the 'Freedoms Inquiry'160 referred to the Australian Law Reform Commission by the Attorney-General. The Commission must investigate the extent to which Commonwealth legislation 'unreasonably encroach upon traditional rights, freedoms and privileges'. This includes the impacts of environmental regulation on vested property rights. Finally, in recent years Coalition governments around Australia have sought to dramatically undermine the capacity of the Environmental Defender's Offices to represent litigants bringing actions in the public interest. They have done this by cutting government funding. In addition, the Attorney-General proposed in 2015 that the extended standing provision found ins 487 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) be repealed, following the Carmichael coal mining litigation discussed in Chapter 6.161 This proposal has found favour with the majority of the Senate Environment and Communications Committee, with the Labor and Green Senators providing strong dissenting reports.162

Conclusion It is clear that economic rationalism has had a considerable influence on the environmental policy and regulatory framework in Australia. As discussed, it has led to the establishment of markets in various areas of environmental law, most recently in carbon. The restructuring of the water and energy services sector is another consequence of this economic theory. In addition, in recent times, under conservative Coalition government at the Commonwealth and State levels, efforts to 'cut red tape' have posed significant threats to comprehensive and effective environmental regulation. Environmental lawyers will need to keep abreast of these developments and assess their implications for ecologically sustainable development in Australia. 159 160 161

162

See (accessed 1 December 2015). See . See Environment Protection and Biodiversity Conservation Amendment (Standing) Bill 2015. (accessed 1 December 2015). See (accessed 1 December 2015).

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2

MANAGING ENVIRONMENTAL CONFLICT

Environmental disputes arise in a variety of ways. An applicant seeking approval for a project may wish to challenge a refusal by the relevant government agency to grant that approval; objectors to a proposed project may wish to challenge a decision to grant approval; a government agency may consider that a person or organisation has failed to comply with legal requirements by, for example, carrying out an activity without obtaining a necessary consent; or a person may have committed an offence, such as discharging waste or pollutants. The nature of the dispute will determine what kind of legal or other avenues are open, either to individuals whether applicants or objectors, or to government agencies. In some instances, there may be a right to have a matter reconsidered afresh by a court or tribunal; in others, a challenge may be limited to grounds of legal validity or process. Environmental matters can arise under either Commonwealth legislation or that of a State or Territory, and the available, and appropriate, avenues for dealing with any matter may vary accordingly. A unique feature of Australian environmental law is the diversity of dispute resolution avenues, including courts and tribunals. A number of specialist statutory courts and tribunals have been established to adjudicate environmental matters: in New South Wales, the Land and Environment Court; in Victoria, the Victorian Civil and Administrative Tribunal; in Queensland, the Planning and Environment Court; in South Australia, the Environment Resources and Development Court; in Tasmania, the Resource Management and Planning Appeal Tribunal; and in Western Australia, the State Administrative Tribunal. In contrast, the Commonwealth has not established any specialist court or tribunals for environmental matters. Challenges to decisions made by Commonwealth agencies are generally made in the Federal Court, and the Administrative Appeals Tribunal determines appeals from a number of Commonwealth environmental decisions. Proceedings in common law actions such as negligence and nuisance in New South Wales will need to be taken in the appropriate court, depending on the amount of compensation sought: that may be the Supreme Court, District Court, or Local Court. Prosecutions for criminal offences, for example, breaches of the Protection of the Environment Operations Act 1997, can be brought in the relevant Local Court, or the Land and Environment Court. The three main types of civil environmental law proceedings are merits appeals, civil enforcement proceedings, and judicial review challenges.

Merits appeal An appeal on the merits is only available where it is expressly provided by statute. A merits appeal allows the court or tribunal to reconsider afresh a decision made by a

39

local council, a minister, or some other government official or agency. The court or tribunal is not limited to the material that was before the original decision-maker, and exercises the same powers as those available to the original decision-maker. If the court or tribunal disagrees with the decision, it can overturn it and substitute its own. Merits appeals are widely available to applicants under environmental legislation. For example, s 97 of the Environmental Planning and Assessment Act 1979 (EPAA) gives the applicant a right of merits appeal within six months of the determination of a development application, or deemed refusal. An applicant for, or the holder of, an environment protection licence can appeal against refusal of a licence or conditions, or decisions affecting a licence, under s 287 of the Protection of the Environment Operations Act 1997. In some limited circumstances a third party, that is, an objector or group opposed to a particular project, can appeal against the granting of a consent or approval.1 Section 98 of the EPAA gives objectors a right of merits appeal in relation to designated development; the objector must have made a written submission objecting to the proposal, and must lodge the appeal within 28 days of notification of the determination. Some of the decisions made under Pt 13A (International Movement of Wildlife Specimens) of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) can be the subject of a merits appeal to the Administrative Appeals Tribunal (s 303GJ). 2

Judicial review Judicial review proceedings involve the court inquiring into the legality of a decision made by a minister, government official, or agency, and the decision-making process. If the decision-maker followed the correct procedures and the decision was within power, the decision cannot be overturned by the court, notwithstanding that the court would not have come to the same conclusion. If the plaintiff is successful in alleging an illegality, the decision may be declared invalid by the court. Even if the court is satisfied that the ground of challenge has been made out, it has a discretion as to whether or not to grant a remedy. Factors such as inconvenience to third parties, or delay, are relevant to the exercise of discretion. And even if the court sets aside a decision and sends the matter back for reconsideration, the decision-maker can subsequently make the same decision, provided the correct procedures are followed, and it will not be susceptible to challenge in the courts. However, in some cases the ensuing publicity results in a decision-maker reconsidering its original decision. Given the limited availability of third party merits appeals, particularly for matters arising under Commonwealth laws, public interest challenges are often by way of judicial review. The types of grounds for judicial review available to applicants under administrative law include: 1

2

See, for example, Ironstone Community Action Group Inc v NSW Ministerfor Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195, where approval was granted to a project subject to conditions more extensive than those imposed in the original project approval; and Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48, refu sing approval for expansion of a coal mine (appeal dismissed: Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105). Examples include the importation of Asian elephants: Re International Fund for Animal Welfare (Aust) Phj Ltd and Minister for Environment and Heritage (2005) 93 ALD 985; and approval of fishing operations as an approved wildlife trade operation: Re Humane Society International and Minister for the Environment (2006) 93 ALO 640.

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• that the decision-maker took account of an irrelevant consideration, or failed to consider a relevant consideration;3 • that the decision-maker acted beyond power, or exceeded jurisdiction;4 • that the decision-maker did not observe procedural fairness; 5 • that the decision was so unreasonable, that no reasonable decision-maker properly applying his or her mind to the matter could have made it. 6 Decisions involving the formation of an opinion by the decision-maker will generally require that the decision-maker has, in fact, formed the relevant state of satisfaction. Such decisions must also not be affected by any material misdirection in law. Judicial review challenges can also be based on a failure to comply with a procedure set out in the applicable legislation, for example, a failure to comply with notification requirements for certain types of development. Not all such failures invalidate a decision, however. The reviewing court will have to decide whether it was the legislative purpose that an act done in breach of legislative requirements be invalid.7 In some instances the legislation will make specific provision. For example, s 102 of the EPAA, which applies to development consents granted by the Minister, provides that the only requirements of the Act that are mandatory in connection with the validity of such a development consent are those listed in s 102(2): • a requirement that a development application to carry out State significant or designated development and its accompanying information be publicly exhibited for the minimum period of time; • a requirement that a development application to carry out development, being development other than State significant or designated development, to which some or all of the public notification provisions apply, be publicly exhibited for the minimum period of time; • a requirement that a development application to carry out advertised development and its accompanying information be publicly exhibited for the minimum period of time prescribed by the regulations. The term 'mandatory' as used in s 102 (which was introduced in 1997) reflects previous case law which distinguished between 'mandatory' legislative requirements, which had to be complied with strictly, and 'directory' requirements, where substantial compliance would suffice. Since the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority, 8 the courts have posed the question as being whether there is a legislative purpose to invalidate any act that fails to comply with the requirements. The Land and Environment Court has held that s 102, and the similarly worded s 75X(5),9 is the expression of Parliament's intention that the only provisions breach of which will necessarily lead to invalidity are those specifically identified. A breach of other provisions may not necessarily result in invalidity and must be considered in accordance with 3 4

5 6

7

8 9

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Parramatta City Council v Hale (1982) 47 LGRA 319; Carstens v Pittwater Council (1999) 111 LGERA 1. Randwick City Council v Minister for the Environment [1998] FCA 1376. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Parramatta City Council v Hale (1982) 47 LGRA 319. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Ibid. This provision applied to approval of a project or concept plan under the former Pt 3A of the EPAA. See now s 115ZJ(2), discussed at pp 139-140.

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the principles in Project Blue Sky.10 The Court of Appeal has approved that reasoning, so that such provisions do not preclude relief where the court determines that a purported approval of a project is not a bona fide attempt to exercise the power, for example, by failure to comply with a basic requirement of the legislation.11 Judicial review challenges to decision-making under NSW environmental legislation are heard in the Land and Environment Court. Challenges to decisions of Commonwealth agencies can be heard in the Federal Court or Federal Circuit Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth), or otherwise in the High Court, Federal Court, or Federal Circuit Court.

Civil enforcement Environmental legislation imposes a range of obligations, for example, an obligation that a developer obtain a licence or approval before commencing a specified activity, or an obligation on government decision-makers to consider all the relevant matters when exercising their powers. A person or organisation with standing (see below) can commence proceedings to enforce those obligations, for example, by obtaining an order to stop an unauthorised activity. Enforcement actions may be initiated by public authorities such as a council. Some civil enforcement proceedings are brought by commercial competitors.12 Most NSW environmental statutes have open standing provisions permitting any person to bring an action to obtain an order to restrain a breach of the legislation, for example, s 123 of the EPAA. The Commonwealth legislation has its own standing test, discussed below. Civil enforcement actions may involve grounds similar to those in judicial review proceedings. As is the case with judicial review proceedings, even if an applicant is successful in establishing a breach of the legislation (for example, work in contravention of the conditions of a development consent), the court has a discretion as to whether or not to grant a remedy.

Reviews outside the courts: Ombudsman The Commonwealth and all Australian States have an Ombudsman whose functions are to investigate and report on the conduct of public authorities. Complaints to the NSW Ombudsman relating to environmental issues concern such issues as how councils exercise, or fail to exercise, their powers relating to development control, and property and services management. The Ombudsman can investigate in response to a complaint or on his or her own motion. The Ombudsman has no power to change a decision, and the outcome of an investigation will be a report, of ten recommending remedial action.

The NSW Land and Environment Court The Land and Environment Court (LEC) commenced operations in September 1980. It was the first specialist environmental court established as a superior court of record in 10

11 12

Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38; Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396. Minister for Planning v Walker [2008] NSWCA 224. For example, see the protracted litigation involving redevelopment in the Wollongong CBD, culminating in GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256.

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the world. Since its establishment, it has created an impressive body of environmental jurisprudence and has been an important catalyst in the development of environmental law in Australia. The LEC is a superior court of record equivalent to the Supreme Court in NSW (Land and Environment Court Act 1979 (LECA) s 5). It is constituted by its judges (six, including the Chief Judge). Commissioners are appointed on a full-time or part-time basis, and have specialist knowledge and experience in specific areas, such as planning, environmental science, architecture, valuation, engineering, and Aboriginal land rights (LECA s 12(2)). An additional qualification for appointment as a Commissioner is that a person is an Australian lawyer (LECA s 12(2AA)).13 The creation of the LEC rationalised and replaced the diversified jurisdictions of a number of courts and tribunals with jurisdiction in a variety of areas including land development, enforcement of planning and environmental legislation, and land valuation. The jurisdiction of the LEC has extended into areas such as disputes between neighbours concerning trees and hedges, and mining matters.

The jurisdiction of the Land and Environment Court The LEC has a mixed jurisdiction, which enables it to deal not only with all merits appeals relating to land use and environmental issues, but also with all civil and criminal enforcement matters, and judicial review. The jurisdiction of the LEC is purely statutory - it has not been given jurisdiction over common law actions, such as negligence or nuisance or civil claims for environmental damage. It cannot award damages except where provided for by statute. The jurisdiction of the LEC is divided into eight classes according to the nature of · the subject matter in question. The class of the litigation affects its scope, the remedy available, the way in which evidence is received, and appeal rights.14 These classes are as follows: Class 1 - Environmental planning and protection appeals (LECA s 17)

Appeals in this class lie from a range of environmental statutes, dealing with areas such as planning and development, pollution, heritage and threatened species. They are often appeals by applicants against decisions by local councils and constitute more than half of the court's workload. They also include a small number of third party merits appeals, which have made an important contribution to the development of environmental law. In 2014 nearly two-thirds of class 1 matters were appeals under s 97 of the EPAA relating to development applications, and over half of those were applications where councils had not determined the development application within the statutory time period. Class 2 - Local government and miscellaneous appeals and applications (LECA s 18)

This class includes applications under the Trees (Disputes Between Neighbours) Act 2006, matters arising under the Local Government Act 1993, and a number of other statutes dealing with water supply, catchment management and noxious weeds. 13 14

An 'Australian lawyer' is a person who has been admitted to the Australian legal profession in New South Wales or in another Australian jurisdiction: Legal Profession Uniform Law (NSW) s 6(1). Australia and New Zealand Banking Group Ltd v Apollo Valley Pty Ltd [2013] NSWLEC 108.

MANAGING ENVIRONMENTAL CONFLICT

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Class 3 - Land tenure, valuation, rating and compensation matters (LECA s 19)

This class includes appeals against land valuations and compensation for land which has been compulsorily acquired by the State. It also includes land claims under the Aboriginal Land Rights Act 1983.

Merits appeals - Appeals in classes 1-3 Merits review and other civil proceedings in classes 1, 2 and 3 comprised 84% of the court's finalised caseload in 2014.15 Many appeals in classes 1, 2 and 3 are merits appeals and involve a de nova rehearing of the matter. Issues of fact and questions of law may be considered. The LEC exercises all the powers and responsibilities of the original decision-maker and is not bound by the original decision (LECA s 39(2)).16 For most matters heard in classes 1, 2 and 3 the decision of the LEC is deemed to be the decision of the decision-maker whose decision was the subject of the appeal (LECA s 39(5)).17 Some class 1, 2 and 3 matters are original proceedings, for example, applications made under the Trees (Disputes Between Neighbours) Act 2006 or the Encroachment of Buildings Act 1922. Proceedings in class 1, 2 or 3 of the court are conducted with as little formality and technicality, and as much expedition, as is appropriate (LECA s 38(1)). The court is not bound by the rules of evidence and may inform itself on any matters as it thinks appropriate (LECA s 38(2)). Proceedings in class 1, 2 or 3 can be delegated to one or more Commissioners for hearing and disposal. In practice, the majority of appeals in class 1, 2 or 3 are heard by Commissioners. Some matters must, and others cannot, be determined by a Commissioner (LECA s 36(1)(b), (lB)). The court has power to order, under r 28.2 of the Uniform Civil Procedure Rules 2005, that a question (for example, a question as to the permissibility of a proposed development) be determined separately from other questions in the proceedings.18 If a question of law arises during a hearing, it can, with the approval of the court, be referred to a judge for determination. Judgments of the Commissioners are final, except that an appeal lies to a judge of the LEC on a question of law (LECA s 56A). Complex matters are heard before a judge who may be assisted by a Commissioner if scientific or technical matters are involved. In this situation, the Commissioner assists and advises the court, but does not adjudicate on any matter before the court (LECA s 37(3)). An appeal lies from a decision of an LEC judge to the Court of Appeal in classes 1, 2 or 3 on a question of law (LECA s 58). Until 2009, costs in class 1, 2 or 3 proceedings could only be awarded in exceptional circumstances, but can now be awarded where it is 'fair and reasonable' to do so, discussed below. Class 4 - Environmental planning and protection and development and development contract - civil enforcement (LECA s 20)

This class deals with civil enforcement as well as judicial review of environmental decisions. These matters may only be heard by a judge of the LEC; a judge may be 15 16

17

18

Land and Environment Court Annual Review 2014, at 30. The extent, and limitations, of s 39(2) were considered in Goldberg v Waverley Council (2007) 156 LGERA 27 and Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) (2009) 172 LGERA 1. There are some exceptions, for example, s 292(2) of the Protection of the Environment Operations Act 1997 provides that the decision of the LEC on appeal under Pt 9.2 of that Act (which includes an appeal against a prevention notice) 'is final and binding' on the appellant and the authority whose decision or notice was the subject of the appeal: see Thaina Town (On Gou/burn) PhJ Ltd v City of Sydney [2007] NSWCA 300 at [ll]-[16]. Owners - Strata Plan No 885 v Gosford City Council [2010] NSWLEC 106.

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assisted by a Commissioner (LECA s 37(1)). The class 4 jurisdiction includes the hearing and disposing of proceedings arising under the specific enforcement provisions of a large number of environmental statutes listed in LECA s 20(1), and the same jurisdiction as the Supreme Court would have in relation to judicial review relating to a right, obligation or duty, or the exercise of a function, conferred or imposed by a 'planning or environmental law' (LECA s 20(2)). A 'planning or environmental law' includes the EPAA, the Coastal Protection Act 1979, the Contaminated Land Management Act 1997, the Environmentally Hazardous Chemicals Act 1985, the Heritage Act 1977, certain Parts of the Local Government Act 1993, the National Parks and Wildlife Act 1974, the Native Vegetation Act 2003, the Pesticides Act 1999, the Protection of the Environment Operations Act 1997 and the Threatened Species Conservation Act 1995 (LECA s 20(3)). Judicial review is concerned with procedural breaches of environmental legislation and the legality of the decision-making process, for example, where the decision-making authority has misunderstood its legal obligations by taking account of irrelevant considerations. In class 4 matters, the LEC is the court of first instance and has exclusive jurisdiction (LECA s 71). The LEC has power to issue injunctions and other orders. An appeal lies from a decision of an LEC judge in class 4 to the Court of Appeal (LECA s 58). This may be a full appeal on the law and the facts. Part 59 of the Uniform Civil Procedure Rules 2005 applies to class 4 proceedings, and requires that proceedings for judicial review of a decision must be commenced within three months of the date of the decision, subject to the power of the court to extend the time, unless there is a statutory limitation period for commencing the proceedings (r 59.10).19 Factors to be considered by the court in deciding whether to extend the time include any particular interest of the plaintiff in challenging the decision, possible prejudice to other persons (including parties to the proceedings) caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, and any relevant public interest (r 59.10(3)). 20 Class 5 - Environmental planning and protection - summary criminal enforcement (LECA s21)

This class involves criminal enforcement and prosecution. The LEC exercises summary criminal jurisdiction over a number of environmental statutes. Foremost among these are prosecutions under the EPAA and the Protection of the Environment Operations Act 199Z Prosecutions under this legislation are brought by the Environment Protection Authority and local councils. From 15 November 2010 the LEC has jurisdiction to hear and determine proceedings for offences under Pt 17A of the Mining Act 1992. Jurisdiction in this class is exercised by a judge. An appeal lies from a decision of a judge of the LEC to the Court of Criminal Appeal. Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings in class 5, including disclosure obligations on the prosecution and the defence.

Class 6 -Appeals by defendants from convictions relating to environmental offences (LECA s21A)

This class deals with appeals from convictions or sentences by the Local Courts for environmental offences. Only appeals as of right are dealt with in this class. 21 Class 7 - Other appeals by defendants relating to environmental offences (LECA s 27 BJ

This class also deals with appeals from convictions by the Local Courts for environmental offences. Only appeals which require the leave of the LEC are dealt with in this class. 22 An appeal lies from a decision of a judge of the LEC in class 6 or 7 to the Court of Criminal Appeal. Class 8 - Mining matters (LECA s 27C)

Civil matters under the Mining Act 1992 and the Petroleum (Onshore) Act 1991 which were formerly heard in the Mining Warden's Court are now determined by the LEC. The class 8 jurisdiction is exercised by a judge, or by a Commissioner who is an Australian lawyer (referred to as a Commissioner for Mining), or by a judge assisted by a commissioner (LECA ss 42, 43). An appeal from a Commissioner for Mining on a question of law lies first to a judge of the LEC (LECA s 56A). For proceedings relating to small-scale titles (other than proceedings relating to a matter referred to ins 293(1)(q) of the Mining Act), a conciliation/arbitration procedure in similar terms to that applicable under s 34AA of the LECA applies (LECA s 41A). Other jurisdiction

In addition to the jurisdiction expressly vested in the LEC by the LECA or other legislation, the court has jurisdiction to hear and dispose of a matter that is ancillary to a matter that falls within the court's jurisdiction (LECA s 16(1A)). The court also has jurisdiction in civil proceedings transferred to it from the Supreme Court. Section 149B of the Civil Procedure Act 2005 enables transfer of proceedings between the Supreme Court and the LEC if either court is satisfied, in relation to proceedings before it, that there are related proceedings pending in the other court, and it is more appropriate for the proceedings to be heard, together with the related proceedings, in the other court. 23

Dispute resolution in the Land and Environment Court The LEC has available a range of dispute resolution procedures and approaches, some (such as mediation and neutral evaluation) in common with other courts and tribunals, 21

22

23 19 20

For discussion of the relationship between r 59.10 of the Rules and s 101 of the EPAA, see Bankstown City Council v Ramahi [2015] NSWLEC 74. These factors are not exhaustive and the weight to be given to relevant factors depends on the circumstances of the case: Regional Express Holdings Ltd v Dubbo City Council (No 2) [2013] NSWLEC 113.

45

These are appeals under ss 31 or 42 of the Crimes (Local Courts Appeal and Review) Act 2001. Section 31 deals with appeals by the defendant against conviction or sentence, whiles 42 deals with appeals by the Director of Public Prosecutions against the sentence imposed. These are appeals under ss 32 or 43 of the Crimes (Local Courts Appeal and Review) Act 2001. Section 32 deals with appeals by the defendant against a conviction in their absence or following a plea of guilty. Section 43 deals with appeals by the Director of Public Prosecutions. For an example of a proceeding transferred from the Supreme Court, see V'landys v Land and Environment Court of NSW [2012] NSWLEC 218; for transfer to the Supreme Court, see Pierce v Minister Administering the Water Management Act 2000 (2012] NSWLEC 33. An application for transfer to the LEC was not granted, and the Supreme Court proceedings were stayed until the determination of the LEC proceedings, in 363 Military Road Mosman Pty Ltd v Owners Strata Plan 72814 [2012] NSWSC 263.

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while others are unique to the LEC. 24 In its civil jurisdiction the LEC is subject to the guiding principles in Div 1 of Pt 6 of the Civil Procedure Act 2005, in particular s 56 which requires the court to seek to give effect to the overriding purpose of that Act and the rules of court, which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

Conciliation conferences Conciliation is a process in which the parties to a dispute, with the assistance of the neutral conciliator, identify the issues in dispute, develop options, consider alternatives and endeavour to reach an agreement. Conciliation conferences may be held in classes 1, 2 and certain class 3 matters, and are conducted by Commissioners. Originally these proceedings were mandatory in every case. 25 There is now a presumption in class 1 matters that the matter will be referred to conciliation, unless the parties demonstrate a good reason to the contrary. 26 Section 34 of LECA provides that the court may arrange a conciliation conference, with or without the parties' consent, and that the parties must participate in good faith (LECA s 34(1A)). Even if a participant to as 34 conference does not have authority to bind that party, there may still be a value in having a s 34 conciliation conference, for example in providing scope for agreement on', or narrowing of, some of the issues in dispute. 27 If an agreement is reached, and the Commissioner is satisfied that decision is one that the court could have made in the proper exercise of its powers, the Commissioner must dispose of the matter in accordance with the parties' agreement (LECA s 34(3)). 28 If agreement is not reached, the Commissioner may, with the consent of the parties, dispose of the proceedings, either on the basis of what occurred at the conciliation conference or with a hearing (LECA s 34(4)). There was a significant increase in the utilisation of conciliation conferences from 2007 and, in 2014, 1169 s 34 conciliation conferences were held. 29 From 7 February 2011 a modified form of the s 34 conciliation process is available for proceedings concerning development applications or modifications to development consents for single dwellings and dual occupancies, or alterations or additions to single dwellings and dual occupancies. Under s 34AA of the LECA, the court must arrange a conciliation conference and, if no agreement is reached during that process, the Commissioner presiding over the conciliation conference must terminate the conciliation, and dispose of the proceedings either following a hearing held forthwith or (if the parties consent) on the basis of what occurred at the conciliation conference. The court has set a target for finalisation of 95% of s 34AA matters within three months from lodgment.

47

On-site hearings Certain class 1 and class 2 matters can be heard and determined at an on-site hearing. Those matters are specified in s 34A of the LECA, and involve proposed development that has an estimated value that is less than half the median sale price for the previous quarter for all dwellings in the local government area in which the development is proposed to be carried out and, if carried out, would have little or no impact beyond neighbouring properties, and does not involve any significant issue of public interest beyond any impact on neighbouring properties. Once a matter is determined by the Registrar to be an on-site hearing matter, the proceedings are dealt with at an on-site conference. The Commissioner determining the matter may give reasons in writing or orally (and recorded). In 2014 there were 72 on-site hearings, and 35% of class 1, 2 and 3 matters were finalised by means of an on-site hearing or as 34 conciliation conference.30

Mediation and neutral evaluation Mediation is a process in which the parties to a dispute, with the assistance of an impartial mediator, identify the disputed issues, develop options, consider alternatives and endeavour to reach an agreement. 31 Since 1991 the LEC has offered mediation as an alternative to litigation in classes 1, 2, 3, 4 and 8 of its jurisdiction. 32 Mediation is available at any stage of the proceedings at the option of the parties, or by the court's referral under s 26 of the Civil Procedure Act 2005. Evidence of anything said or of any admission made in a mediation session, and any document prepared for the purposes of, or in the course of, or as a result of, a mediation session, are not admissible in any proceedings before any court or other body, unless all parties consent. If the matter is not resolved, the matter will be heard by the LEC and the judge will not be told of anything that took place during the mediation conference. If parties reach agreement, they can either have an informal agreement or have it given the force of a court order so that it is binding. The court can refer matters for mediation to one of the Commissioners who are nationally accredited mediators, or the parties can choose their own mediator. In 2014 there were 29 mediations, 24 conducted by a court mediator, and 79% of the matters mediated were finalised without a hearing. 33 The LEC also offers neutral evaluation of disputes. Neutral evaluation is defined as a process of evaluation of a dispute in which an impartial evaluator seeks to identify and reduce the issues of fact and law in dispute. The evaluator's role includes assessing the relative strengths and weakness of each party's case and offering an opinion as to the likely outcome of the proceedings.34 The court can refer proceedings in classes 1, 2, 3 or 4 for neutral evaluation with or without the consent of the parties.

Expert evidence 24

25 26 27 28 29

See the Hon Justice B Preston, 'Operating an Environment Court: The Experience of the Land and Environment Court of New South Wales' (2008) 25 EPLJ 385; 'The Land and Environment Court of New South Wales: Moving Towards a Multi-door Courthouse - Part I' (2008) 19 ADRJ 72; 'The Land and Environment Court of New South Wales: Moving Towards a Multi-door Courthouse - Part II' (2008) 19 ADR] 144. For the history of s 34 conferences, see the Hon Justice B Preston, 'Conciliation in the Land and Environment Court of New South Wales: History, Nature and Benefits' (2007) 13 LGLJ 110. Preston, 'Part II', above n 24, at 149. Golden Max Pty Ltd v Hurstville City Council (2015] NSWLEC 16. See Presrod Pty Ltd v Wollongong City Council (2010) NSWLEC 192 for an unsuccessful attempt by the council to set aside orders made following agreement reached at a s 34 conference. Land and Environment Court Annual Review 2014, at 19.

Many environmental matters require the assistance of scientific or other expert evidence on critical issues of fact, for example, noise levels, impact of pollutants or biodiversity issues. A person giving expert evidence must have specialised knowledge based on 30 31 32 33 34

Ibid at 31. Ibid at 19. Initially under Pt SA of the LECA and, since 2007, in accordance with the provisions of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. Land and Environment Court Annual Review 2014, at 20. Ibid.

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training, study or experience, and their evidence must be wholly or substantially based on that knowledge.35 A direction of the court is required for a party to adduce expert evidence (Uniform Civil Procedure Rules 2005 r 31.19). That leave is routinely given in directions made for matters in Classes 1, 2 and 3 of the LEC's jurisdiction. In class 4 matters, the scope for adducing expert evidence in judicial review proceedings is limited, and the court will need to be satisfied that expert evidence is reasonably required to resolve the proceedings. 36 Class 1, 2 or 3 matters may be determined by a Commissioner with special knowledge or experience in a particular field. 37 Where expert evidence needs to be put before the court, there are a number of ways in which it can be presented, including individual reports from experts engaged by each party, joint reports from competing experts, and single expert reports. Since 2003 the LEC has used single experts (initially referred to as court-appointed experts). The parties may agree on the selection of the expert; if not, they provide a list of three nominees and the LEC selects the expert. A party requires leave before calling their own separate expert evidence if a single expert is appointed. An alternative approach routinely used by the LEC is to require experts engaged by the parties to meet to determine the areas of agreement and disagreement, and to provide a joint report to the court, sometimes after the experts have prepared individual reports. Any oral evidence given by expert witnesses will usually be heard concurrently. The LEC's Practice Notes outline the circumstances in which a single expert would be appropriate, and the obligations on experts providing expert evidence. 38

Representation A person entitled to appear before the court may appear in person, or by an Australian legal practitioner, or (except in proceedings in class 5, 6 or 7 of the court's jurisdiction) by an agent authorised by the person in writing (LECA s 63(1)). Leave is required for a person to appear by an agent and, in considering whether to grant leave, the court will consider whether the agent has provided the person with the information required by the rules, and whether granting leave is in the best interests of the person. Rule 7.7 of the Land and Environment Court Rules 2007 requires the proposed agent to provide the following information: (a) that the person is under a duty to assist the court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court, (b) that the person is under a duty to take reasonable steps to resolve or narrow the issues in the proceedings, (c) that the agent must not, by the agent's conduct, cause the person to be in breach of a duty referred to in paragraph (a) or (b), (d) that the court may take into account any failure to comply with a duty referred to in paragraph (a), (b) or (c) in exercising a discretion with respect to costs, 35 36 37

38

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588. Bright v Acrocert Pty Ltd (2012] NSWLEC 173; Gilbank v Bloore [2012] NSWLEC 172; Friends of King Edward Park Inc v Newcastle City Council (2012] NSWLEC 113. A Commissioner using his or her special knowledge or experience is required to comply with the requirements of procedural fairness, including disclosure to the parties: see the Hon Justice Biscoe, 'Land and Environment Court of New South Wales: Jurisdiction, Structure and Civil Practice and Procedure', paper delivered at Australasian Conference of Planning and Environment Courts and Tribunals, 2 September 2010, at (166]. See .

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49

(e) that the court may make a costs order against the person in proceedings to which rule 3.7 applies if the court considers it fair and reasonable in the circumstances and in any other proceedings if the person is unsuccessful, (f) the knowledge and experience of the agent with respect to the type of matter that is the subject of the proceedings, and (g) whether the agent proposes to charge for the agent's services and, if so, the agent's proposed written costs agreement, a written estimate of the likely total of the agent's charges and the likely disbursements to be incurred by the person. Leave can be granted subject to conditions, and can be revoked at any time for any reason (LECA s 63(4)).

Planning principles Since 2003 the LEC has formulated and made available on its website 'planning principles', intended to promote consistency within the court and to provide guidance for councils, applicants and others. 39 The court describes a planning principle as the statement of a desirable outcome when considering whether to grant consent to a development proposal; the chain of reasoning aimed at reaching a planning decision; or a list of appropriate matters to be considered when making a planning decision. The planning principles fall into two broad categories: those relating to procedure or process, and those relating to assessment or outcome. 40 The procedural or process-oriented principles set out criteria, questions or steps to be considered when making particular decisions, for example, responsibility for monitoring compliance with a condition. The assessment or outcome principles give guidance as to the weight to be given to particular matters, or express a preference for the outcome that should be achieved or required, for example, assessment of height, scale or bulk, and assessment of views. Most of the planning principles are formulated by the Commissioners; some, in particular on the application of the principles of ESD in the decision-making process, have been formulated by the judges.41 In 2013 the Commissioners undertook a review of the 42 planning principles that had been adopted, to determine which principles should be revised or abandoned; during 2014, eight planning principles were dealt with as a consequence of the review process, with five being confirmed, two modified and one set aside. 42 The court has also developed tree dispute principles for matters arising under the Trees (Disputes Between Neighbours) Act 2006.

Orders in development consent matters Division 3 of Pt 3 of the LECA makes specific provision for orders that can be made in challenges to the validity of development consents. If the LEC decides that a development consent is invalid because of failure to comply with preliminary steps, whether or not those preliminary steps should have been taken by the consent authority or by 39 40

41 42

See . See P Williams, 'The Land and Environment Court's Planning Principles: Relationship with Planning Theory and Practice' (2005) 22 EPLJ 401; D Galpin, 'Planning Principles: Policy-making by the Land and Environment Court' (2005) 11 LGLJ 94; L Pearson and P Williams, 'The New South Wales Planning Reforms: Undermining External Merits Review of Land-use Decision-making?' (2009) 26 EPLJ 19. BGP Properties Pty Ltd v Lake Ma cquarie City Council (2004] NSWLEC 399; Telstra Corporation Ltd v Horn sby Shire Council (2006] NSWLEC 133. Land and Environment Court Annual Review 2014, 23.

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any other person or body, it may, instead of declaring or determining that the consent is invalid, make an order suspending the operation of the consent in whole or in part, and specifying terms the compliance with which will validate the consent (LECA ss 25A, 25B(l)). Those terms can include a requirement to carry out again steps already carried out, or steps not yet carried out, or requiring other acts, matters or things to be done or omitted (LECA s 25B(2)). Section 25A(2) states that Div 3 'extends to invalidity arising from any steps preliminary to the granting of a development consent to which this Division applies, whether those steps were taken, or should have been taken, by the Minister or any other consent authority, or by any other person or body'. Section 25A is not limited to the particular kind of invalidity specified ins 25A(2). 43 The development consent referred to in s 25A(l) is the determination of the consent authority, and ss 25A and 25B can be applied where, for example, the ground of invalidity is a failure to consider a matter specified ins 79C of the EPAA. Even if these provisions apply, however, the LEC still has a discretion. While the court could impose a term under s 25B(2)(c) requiring a consent authority to reconsider, or consider, any one or more of the matters in s 79C, there may be circumstances where the appropriate order is that the consent authority consider afresh all the relevant material. 44 An order under s 25B is unlikely to be appropriate where the defect is such that the purported development consent fails to indicate how it was expected to operate, 45 or where the defect is failure to have regard to a mandatory consideration,46 or failure to comply with mandatory requirements for notification of a development application. 47

Environmental litigation Standing Merits appeal rights are conferred by legislation, and that legislation will specify who can initiate that process. Most merits review appeals are brought by the applicant for an approval, against a decision to refuse that approval or to attach conditions. So an applicant for development consent can appeal under s 97 of the EPAA against refusal of consent. Certain decisions under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBCA) can be appealed to the Administrative Appeals Tribunal. 48 In some circumstances an objector can initiate a merits appeal. In New South Wales, a person who makes a written submission objecting to an application for approval of 'designated development' (see p 95) can appeal to the LEC against the granting of that consent. Third parties have also had standing to challenge approvals granted by Commonwealth agencies in the Administrative Appeals Tribunal (AAT). In matters before the AAT an applicant for review will need to establish that they have interests affected by the decision under review. An organisation is taken to have interests affected if the decision relates to a matter included in the objects of the organisation or association

(Administrative Appeals Tribunal Act 1975 (Cth) s 27(2)). The AAT has heard appeals against decisions approving management plans relating to kangaroos 49 and fisheries.50 For other challenges to environmental decisions, again the distinction needs to be drawn between NSW legislation and Commonwealth legislation. Most NSW environmental statutes permit 'any person' to initiate proceedings to enforce obligations imposed under the legislation or to challenge the validity of the decision-making process. For Commonwealth matters initiated under the Administrative Decisions (Judicial Review) Act 1977 (Cth) the standing test generally imposed is that the applicant is a 'person aggrieved' by the decision under challenge, which means a person whose interests are adversely affected by the decision (ss 5, 3(4)). 51 Where the source of the power to make the decision under challenge is the EPBCA, that test is altered. Under s 487 of the EPBCA, an individual is taken to be a person aggrieved by a decision, failure or conduct if the individual is an Australian citizen or ordinarily resident in Australia or an external Territory; and, at any time in the two years immediately before the decision, failure or conduct, the individual has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment. An organisation or association (whether incorporated or not) is taken to be a person aggrieved by a decision, failure or conduct if the organisation or association is incorporated, or was otherwise established, in Australia or an external Territory; and, at any time in the two years immediately before the decision, failure or conduct, the organisation or association has engaged in a series of activities in Australia or an external Territory for protection or conservation of, or research into, the environment; and at the time of the decision, failure or conduct, the objects or purposes of the organisation or association included protection or conservation of, or research into, the environment. Examples of challenges brought to decision-making under the EPBCA include the challenge to the approval of a pulp mill in Tasmania (Wilderness Society Inc v Minister for Environment and Water Resources), 52 dredging in Port Phillip Bay (Blue Wedges Inc v Minister for the Environment, Heritage and the Arts), 53 and the Anvil Hill coal mine (Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources).54 An application for an injunction under the EPBCA to restrain conduct in breach of the legislation can be brought by the Minister or by an 'interested person' (EPBCA s 475). An 'interested person' can be an individual or an organisation, and the required interest is defined similarly to s 487 (EPBCA s 475(6), (7)). The first successful application for an injunction under the EPBCA was brought by an individual, Dr Booth, in Booth v Bosworth. 55

Access to information There are two main avenues for obtaining access to information about environmental matters. A decision-maker may be obliged to provide reasons for a decision, either on request by a person entitled to challenge the decision, or sometimes as part of the 49

43 44 45 46 47 48

Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38. Ibid; Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78. GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256. Hoxton Park Residents Action Group Inc v Liverpool City Council (No 3) [2012] NSWLEC 43. Simpson v Wakool Shire Council [2012] NSWLEC 163. For example, appeals against decisions to refuse approval for export of native birds: Re Hand and Minister for the Environment, Heritage and the Arts [2008] AATA 893; Re Zapirain and Minister for the Environment, Heritage and the Arts [2008] AATA 1047.

51

50 51 52 53 54 55

Re Wildlife Protection Association of Australia Inc and Minister for the Environment, Heritage and the Arts [2008] AATA 717. Re Nature Conservation Council ofNSW Inc and Minister for Environment and Water Resources [2007] AATA 1876. Argos Pty Ltd v Corbell, Minister for the Environment and Sustainable Development [2014] HCA 50. [2007] FCAFC 175. [2008] FCA 8. [2007] FCAFC 3. (2001) 114 KR 39.

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process of notifying the decision. A person entitled to seek review of a decision by a Commonwealth Minister or agency under the Administrative Decisions (Judicial Review) Act (ADJRA) is entitled to ask for a statement of reasons for the decision (ADJRA s 13). In North Coast Environment Council Inc v Minister for Resources 56 the applicant requested a statement of reasons for a decision to grant a licence for export of woodchips; the Minister refused, arguing that the organisation did not have standing to challenge the decision: the Federal Court disagreed, finding that the organisation did have standing and was entitled to a statement of reasons. There is no similar general obligation to provide reasons under NSW legislation. In some instances, legislation may require reasons; for example, in notification of the refusal of development consent or the imposition of conditions, reasons for the decision must be provided (Environmental Planning and Assessment Regulation 2000 (EPAR) cl 100). For matters challenging a decision of a public authority commenced in class 4 of its jurisdiction, the LEC can order the public authority to provide to the other party a written statement setting out the public authority's reasons for the decision (Land and Environment Court Rules 2007 r 4.3). 57 In judicial review proceedings in which relief is sought in relation to a decision of a public authority, the plaintiff may, within 21 days of commencing proceedings (or within such other time as the court may direct), serve on the public authority a notice requiring the public authority to provide to the plaintiff a copy of the decision, and a statement of reasons for the decision; if the public authority does not comply within 14 days of service, or the plaintiff has not served a notice within the time prescribed, the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision (Uniform Civil Procedure Rules 2005 r 59.9). The public authority can be directed to provide those documents notwithstanding that it has filed a submitting appearance rather than taking the position of a protagonist in the proceedings. 58 An alternative avenue for obtaining information about environmental decisionmaking and processes is through freedom of information (FOi) legislation. Both New South Wales and the Commonwealth have FOi legislation59 under which agencies are required to make certain information about the agency, its policies and practices publicly available, and are required to provide access to documents on request. The legislation imposes procedural requirements as to the form of application, the payment of fees and charges, and the circumstances in which an agency is entitled to refuse access to documents. There are rights to seek review where an agency refuses access to documents: in New South Wales to the Information Commissioner (who can make recommendations to the agency) or to the NSW Civil and Administrative Tribunal; for the Commonwealth, reviews can be conducted by the Information Commissioner or the Ombudsman, and there is right of appeal to the Administrative Appeals Tribunal.

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If public notice of the granting of a consent or a complying development certificate is given in accordance with the regulations by a consent authority or an accredited certifier, the validity of the consent or certificate cannot be questioned in any legal proceedings except those commenced in the Court by any person at any time before the expiration of 3 months from the date on which public notice was so given. The public notice referred to ins 101 is a notice published in a local newspaper describing the land and the development the subject of the application, which states that the development consent is available for public inspection at the consent authority's principal office (EPAR cl 124).60 The notice must comply with the requirements of the regulations for the limitation period to operate. 61 The courts generally construe provisions such as s 101 which attempt to limit or restrict judicial review strictly and, after the High Court decision in Kirk v Industrial Court (NSW), 62 the full range of jurisdictional error remains subject to judicial review notwithstanding a privative clause. 63 Section 101 does not protect a development consent from challenge after three months where the consent does not conform to the threefold principle in R v Hickman; Ex parte Fox and Clinton, 64 where it is manifest that the decision is not a bona fide attempt to exercise the power; where it does not relate to the subject-matter of the legislation; or where it is not reasonably capable of reference to the power given to the decision-maker, or against breach of, or non-compliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as 'essential', 'indispensable', 'imperative' or 'inviolable'. 65 The precise application of these principles is a matter of debate, in particular the extent to which the alleged defect must be apparent on the face of the document. 66 The Court of Appeal has expressed the view that the expansion of Kirk beyond its sphere of operation must be undertaken with caution: it was concerned with review by the Supreme Court of a decision of a superior court of record, albeit one with limited jurisdiction, and was not, in terms, concerned with decisions of non-judicial bodies. Further, it was concerned with a strong form of privative clause, not a provision imposing a limitation period on otherwise available relief: Trives v Hornsby Shire Council. 67 Section 35 makes similar provision for challenges to Environmental Planning Instruments (EPls), limiting challenges to those commenced within three months from the date of publication on the NSW legislation website. The arguments in favour of giving effect to a legislative provision restricting review to a defined period include the need for finality and certainty in land use decision-making. More contentious are legislative provisions that attempt to prevent any challenge. An example of such a provision is s 118AG of the EPAA, which applies to certain functions of the Minister relating to the appointment of a planning administrator or a planning

Privative clauses Legislation can restrict, or attempt to prevent, judicial review challenges. The most commonly used form of such a provision in NSW legislation is a time limitation. Section 101 of the EPAA applies to development consents, and provides: 56 57 58 59

(1994) 55 FCR 492. See Shellharbour City Council v Minister for Planning [2011] NSWLEC 59 where an order was made under r4.3. Malesev v Strati [2014] NSWLEC 91. See also Minister for Resources and Energy v Gold and Copper Resources Pty Ltd [2015] NSWCA 113 for discussion of the extent of the power conferred by r 59.9(4). Government Information (Public Access) Act 2009 (NSW); Freedom of Information Act 1982 (Cth).

60

61 62 63 64 65 66 67

A notice that does not comply with cl 124 is not a notice given 'in accordance with the regulations' for the purpose of s 101 of the EPAA: Haxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA349. Brown v Randwick City Council [2011] NSWLEC 172; Haxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349. (2010) 239 CLR 531. Brown v Randwick City Council [2011] NSWLEC 172. (1945) 70 CLR 598. Lesnewski v Mosman Municipal Council [2005] NSWCA 99. Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455. [2015] NSWCA 158.

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panel, or the conferral of functions on a joint regional planning panel. Section 118AG(2) provides: The exercise by the Minister of any protected function may not be: (a) challenged, reviewed, quashed or called into question before any court of law or administrative review body in any proceedings, or (b) restrained, removed or otherwise affected by any proceedings. Section 118AG is clearly intended to be comprehensive. Subsection (3) states that the prohibition on legal challenge applies whether or not the proceedings relate to any question involving compliance or non-compliance with the procedural requirements of Div lAA of Pt 6 of the EPAA, or the rules of natural justice. Subsection (6) states that the 'exercise' of functions includes a purported exercise of functions, non-exercise or improper exercise; and proposed, apprehended or threatened exercise of functions . The latter provision appears intended to prevent pre-emptive challenges.

Costs in public interest litigation General approach The general principle applied in judicial proceedings is that the successful party is entitled to its costs. This principle is based on the common law position that it is just and reasonable that the party that has caused the other party to incur the costs of litigation should reimburse that party for the liability incurred: its purpose is not to punish the unsuccessful party, but to compensate the successful party for the expense to which it has been put. 68 In Oshlack v Richmond River Council 69 the High Court confirmed the approach that had been adopted in the LEC that, where proceedings are brought in the public interest, there may be a basis for departing from the usual rule. In that case, the relevant factors were that the legislation conferred standing on the applicant, the issues raised were significant and novel, and the applicant was motivated by a concern to protect the environment rather than personal gain. Public interest applicants have had mixed success in resisting orders for costs. Applicants in the Federal Court in challenges to decision-making under the EPBCA have rarely been successful in arguing that costs should not be awarded.70 Some notable exceptions include Blue Wedges Inc v Minister for the Environment, Heritage and the Arts, 71 a challenge to approval of dredging operations in Port Phillip Bay, where costs were not awarded on the basis that the matters raised were of significant public concern, and which raised important questions of construction of provisions of the EPBCA. In Wilderness Society Inc v Minister for the Environment, Heritage and the Arts,72 a challenge to the approval of a pulp mill, the applicant was required to pay 70% of the Minister's costs and 40% of the costs of the project proponent, Gunns Ltd. For merits review matters, the general principle is that each party bears their own costs. 68 69 70 71 72

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Latoudis v Casey (1990) 170 CLR 534. (1998) 193 CLR 72. For discussion of some of these cases, see C McGrath, 'Flying Foxes, Dams and Whales: Using Federal Environmental Laws in the Public Interest' (2008) 25 EPLJ 324 at 336-337. [2008] FCA 8. [2008] FCAFC 19.

55

Land and Environment Court For merits review matters in classes 1, 2 and 3 of the LEC jurisdiction (other than an appeal on a question of law under s 56A of the LECA), r 3.7 of the Land Environment Court Rules 2007 applies, and provides that the court is not to make an order for the payment of costs unless the court considers that the making of an order as to the whole or any part of the costs 'is fair and reasonable in the circumstances'.73 The starting point is a presumptive rule that there will be no order as to costs, and the issue is whether in the particular circumstances of the case it is fair and reasonable that a party should be reimbursed for the costs it has incurred. 74 The consideration of unreasonableness warranting a costs order is confined to unreasonableness of conduct in relation to the proceedings.75 For matters in class 4 of the LEC's jurisdiction, the general principle that costs follow the event applies, subject to r 4.2 of the Land and Environment Court Rules 2007, which provides that the court may decide not to make an order for payment of costs against an unsuccessful applicant if it is satisfied that the proceedings have been brought 'in the public interest'. Before the introduction of r 4.2,76 the LEC had on occasion decided not to order costs against an unsuccessful applicant, or to reduce costs, on the basis of the approach approved in Oshlack v Richmond River Council. 77 The Court of Appeal applied this approach in Minister for Planning v Walker (No 2) 78 in ordering that each party pay its own costs at first instance and on appeal: in this matter, while the Minister's appeal from a decision of the LEC relating to whether ESD principles are a mandatory consideration under Pt 3A of the EPAA had succeeded, the proceedings had raised a novel point of law, the point was reasonably arguable and, according to the primary judge and a majority in the Court of Appeal, the Minister had not taken into account ESD principles which was contrary to good decision-making. In most cases there needs to be something additional to characterisation of the litigation as being brought in the public interest to justify a departure from the usual costs rule. The cases establish a number of circumstances or factors that, when coupled with the characterisation of the litigation as being brought in the public interest, justify departure from the usual costs rule: the litigation raises one or more novel issues of general importance; the litigation has contributed, in a material way;to the proper understanding, development or administration of the law; where the litigation is brought to protect the environment or some component of it, the environment or component is of significant value and importance; the litigation affects a significant section of the public; and there was no financial gain for the applicant in bringing the proceedings.79

Maximum costs order The LEC has power to make an order specifying the maximum costs that may be recovered by one party from another (Uniform Civil Procedure Rules 2005 r 42.4). The critical 73 74 75 76 77

78 79

For a discussion of practice in the LEC before r 3.7 came into effect, see Thaina Town (On Gou/burn) Pty Ltd v City of Sydney [2007] NSWCA 300 at [38]-[52] per Spigelman CJ. Port Stephens Council v Sansom [2007] NSWCA 299. Community Association DP270253 v Woollahra Municipal Council [2015] NSWCA 80. 28 January 2008. See, for example, Engadine Area Traffic Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365; Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWLEC 159; Kennedy v Director-General of the Department of Environment and Conservation (No 2) [2007] NSWLEC 271; F and D Bonaccorso Pty Ltd v City of Canada Bay Council (No 5) [2008] NSWLEC 235. [2008] NSWCA 334. Caroona Coal Action Group Inc v Coal Mines Australia Phj Ltd and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; Fullerton Cove Residents Action Group Inc v Dart Energi; Ltd (No 3) [2013] NSWLEC 152.

56

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

issue is whether access to justice would be promoted or impeded by the making or not making of such an order. In Blue Mountains Conservation Society v Delta Electricity8° (confirmed on appeal in Delta Electricity v Blue Mountains Conservation Society Inc) 81 Pain J concluded that the matter was public interest litigation and that it was likely that the applicant would not proceed in the absence of a protective costs order, and made an order capping the costs payable at $20,000. In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd 82 Preston CJ declined to make such an order, finding that the applicant would continue the litigation regardless, and that it had not been established that there was a disproportionality of costs. Preston CJ noted that, while a maximum costs order could facilitate access to justice, it could also inhibit access to justice by depriving an applicant of access to lawyers and experts.

Security for costs The courts have the power to direct that an applicant provide security for the payment of costs should the action be unsuccessful (Uniform Civil Procedure Rules 2005 r 42.21). Factors which may be relevant include the purpose for which the applicant is bringing the proceedings, the financial status of the applicant, the strength of the applicant's case and the public interest nature of the litigation. 83 The LEC may decide not to make an order requiring an applicant to give security for the respondent's costs if it is satisfied that the proceedings have been brought in the public interest (Land and Environment Court Rules 2007 r 4.2(2)). 84 For proceedings in class 4 of the court's jurisdiction, Uniform Civil Procedure Rules 2005 r 59.11 provides that a plaintiff is not to be required to provide security for costs in respect of judicial review proceedings except in exceptional circumstances, and where a plaintiff invokes an open standing provision, or commences representative proceedings, the court is not to treat the plaintiff as bringing proceedings for the benefit of a third party for the purposes of considering whether exceptional circumstances exist. 85

Undertaking for damages In the LEC, r 4.2(3) of the Land and Environment Court Rules 2007 provides that, in proceedings for an interlocutory injunction or order, the court may decide not to require an applicant to give an undertaking as to damages if it is satisfied that the proceedings have been brought 'in the public interest'.

Overriding legislation It is not uncommon for legislation to be enacted to override an unwelcome judicial decision on a challenge to environmental decision-making. One early example was the special legislation passed to enable the construction of a sports stadium at Parramatta after successful challenges to the council's consent in the LEC and Court of Appeal. 86 A 80 81 82 83

84 85 86

(2009) 170 LGERA 1. (2010) 176 LGERA 424. (2009) 170 LGERA 25.

Town Watch Inc v Grafton City Council (1997) 93 LGERA 401; John Williams Neighbourhood Group Inc v Minister for Planning and Murlan Consulting Pty Ltd [2011] NSWLEC 100; Kennedy v Stockland Development Pty Ltd (No 2) [2011] NSWLEC 10. Friends of King Edward Park Inc v Newcastle City Council [2012] NSWLEC 113. Save Little Manly Beach Foreshore Inc v Manly Council [2013] NSWLEC 155. Parramatta City Council v Hale (1982) 47 LGRA 319; Cumberland Oval (Amendment) Act 1983.

MANAGING ENVIRONMENTAL CONFLICT

57

class 4 challenge to the validity of biodiversity certification of the State Environmental Planning Policy (Sydney Region Growth Centres) 2006 under s 126G of the Threatened Species Conservation 1995 was halted when the NSW Parliament enacted the Threatened Species Conservation Amendment (Special Provisions) Act 2008; this legislation did not validate the original decision, but conferred biodiversity certification on the SEPP directly. As noted in the decision that each party pay their own costs, while the judicial review challenge could theoretically still proceed, the practical effect of the legislation was to render the proceedings futile. 87 Action to overcome potential grounds for chal_lenge can be tak_en late in the proceedings: for example, the amendment of State Environmental Planning Policy No 55 - Remediation of Land to exclude the Barangaroo redevelopment site from its application came after the hearing had concluded, and removed the ground on which the applicant would otherwise have succeeded. 88 In some instances, special legislation has given rise to further litigation to establish its application. 89

Other accountability avenues: Independent Commission Against Corruption The Independent Commission Against Corruption (ICAC) was established as an independent body by the Independent Commission Against Corruption Act 1988 in response to growing community concern about the integrity of public administration in New South Wales. Its principal objectives are to investigate, expose and prevent corruption, and to educate public authorities, public officials and members of the public about corruption and its detrimental effects. In 2013-14, 41% of allegations of corruption made by members of the public concerned local government, and 25% related to development and land rezoning decisions. In 2007 ICAC published a position paper on Corruption Risks in NSW Development Approval Processes, identifying conflicts of interest, use of State Environmental Planning Policy No 1 (SEPP 1) departures from development standards, and political donations as issues of concern. The ICAC made a number of recommendations, including referral of matters for independent assessment, extension of merit appeal rights, provision of reasons for decisions, and tightening procedures for disposal of council-owned land and dealing with SEPP 1 objections. The 2008 ICAC reports on its investigation into corruption allegations affecting Wollongong City Council found actual corrupt conduct in five levels of the council; in addition to recommending action against specific individuals, ICAC recommended major changes to both council and Department of Planning systems and administration. Some of those changes have been implemented, for example, the monitoring of the requirement that councils report to the Department on their use of the SEPP 1 discretion (see p 68), and advice on the status of draft plans in development decision-making (see p 105). In 2012 the ICAC published a report on Anti-Corruption Safeguards and the NSW Planning System, in which it recommended six key corruption prevention safeguards that would reduce the frequency of corruption if integrated into the NSW planning system: providing certainty in the 87

True Conservation Association Inc v Minister administering the Threatened Species Conservation Act 1995

88

Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33. In that case, while

[2008] NSWLEC 221.

89

the challenge to the project approval failed, the Minister was ordered to pay costs on an mdemmty basis: Australians for Sustainable Development Inc v Minister for Planning (No 2) [2011] NSWLEC 70. See, for example, No Dump Residents Association Inc v Collex Pty Ltd [2006] NSWCA 94, on the Clyde Waste Transfer Terminal (Special Provisions) Act 2003.

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

form of strategic planning; clear criteria to guide decisions and a consistent decisionmaking framework; clear articulation of balancing competing public interests; ensuring transparency; reducing complexity; providing meaningful community participation and consultation; and expanding the scope of third party merit appeals.

3

LAND USE PLANNING

Planning is a term which has a broad range of meanings. In the context of land use, it can include strategic planning, the development of urban policy, for example, in provision of infrastructure such as housing and transport, and more focused reference to urban and regional, or town and country, planning.1 Planning processes relevant to environmental issues include management of protected areas by all levels of government, including management of community land by local government; water catchment management; and controls on activities which may impact on native vegetation. Plans of management for protected areas, including under the Local Government Act 1993, are discussed in Chapter 12. Catchment management is discussed in Chapter 10. The primary focus of this chapter is on land use planning, or the regulation of land use, through the controls established under the Environmental Planning and Assessment Act 1979 (EPAA). The EPAA was passed in 1979, in a regulatory climate very different from that of today. The objects of the EPAA are set out in s 5, and as originally enacted were: The objects of this Act are: (a) to encourage: (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and co-ordination of the orderly and economic use and development of land; (iii) the protection, provision and co-ordination of communication and utility services; (iv) the provision of land for public purposes; (v) the provision and co-ordination of community services and facilities; and (vi) the protection of the environment; (b) to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and (c) to provide increased opportunity for public involvement and participation in environmental planning and assessment. Subsequent amendments have added to s S(a) '(vii) ecologically sustainable development' and '(viii) the provision and maintenance of affordable housing', and expanded s S(a)(vi), which now reads: 1

B Gleeson and N Low, Australian Urban Planning: New Challenges, New Agendas (Allen & Unwin, 2000) at 12.

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ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

LAND USE PLANNING

(vi) the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats. The EPAA does not in terms direct decision-makers to have regard to the objects of the Act when making decisions. However, these objects are relevant in consideration, in particular, of 'the public interest' under s 79C in development consent determinations under Pt 4 of the EPAA: Carstens v Pittwater Council;2 BGP Properties Pty Ltd v Lake Macquarie City Council; 3 Telstra Corporation Ltd v Hornsby Shire Council. 4 The objects are also relevant in the making of environmental planning instruments, which must be made for the purpose of achieving any of the objects of the EPAA (s 24). The objects of the EPAA reflect a number of themes that had emerged by the second half of the 20th century: a concern for the balancing of economic growth and environmental protection; a desire to achieve a greater degree of co-ordination in decision-making between State and local government; and the growing demand for increased opportunities for public participation in the decision-making process. Amendments made to the EPAA over the past decade call into question whether there is emerging an inconsistency between the objects of the Act and its specific provisions. 5 On 12 July 2011 the NSW government announced a review of the EPAA, which was conducted by the Hon Tim Moore and the Hon Ron Dyer. The Independent Review resulted in the publication of The Way Ahead for Planning in NSW - Recommendations of the NSW Planning System Review: Vol 1 - Major Issues (May 2012), and Vol 2 - Other Issues (June 2012). The Independent Review recommended a new legislative framework, comprising a Sustainable Planning Act to establish a framework for a reformed planning system, a Planning Commission Act to establish the composition, powers and functions of an independent Planning Commission, and a Spatial Information Act to facilitate a 'whole of government' approach to the application of information technology to spatial data. The five major elements to the proposed reforms were to provide a focus on long-term strategic planning maximising community engagement at the front end of the process; a new classification system for assessing and determining development proposals bringing all development within a single framework; to provide the basis for moving to a proper electronic planning framework relying on digital information rather than the present paper-based system; reinforcement of the independence and transparency of the decision-making process for development proposals of State or regional significance; and identifying the need for positive cultural change. 6 A Green Paper on A New Planning System for New South Wales was published in July 2012, and a White Paper and associated draft legislation were exhibited in AprilJune 2013. The Planning Bill 2013 included several significant changes to the present EPAA, including to the objects of the legislation which were identified in the following terms: 2 3 4 5

6

(1999) 111 LGERA 1. (2004] NSWLEC 399. (2006) 146 LGERA 10. The reasoning in these cases was approved by the Court of Appeal in Minister for Planning v Walker (2008] NSWCA 224. Y Carr, 'Does Part 3A of the Environmental Planning and Assessment Act 1979 (NSW) undermine the objects of that Act?' (2007) 12 LGLJ 240; Z Lipman and R Stokes, 'The Technocrat is back: Environmental land-use planning reform in New South Wales' (2008) 25 EPLJ 305. .

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(a) to promote the growth of the State's economy and increased productivity, (b) to promote sustainable development, (c) to provide opportunities for early and on-going community participation in strategic planning and to promote transparent decision-making, (d) to facilitate and manage growth by the co-ordination, planning, delivery and integration of infrastructure and services in strategic planning, (e) to promote the timely delivery of business, employment and housing opportunities (including for housing choice and affordable housing), (f) to promote the protection of the environment and heritage, including by: (i) the conservation of biodiversity, and (ii) the conservation and sustainable management of built and cultural heritage (including Aboriginal cultural heritage), (g) to enable the effective management of natural hazards and natural resources, including agricultural land, water and minerals, (h) to promote health and safety in the design, construction and performance of buildings, (i) to promote health, amenity and quality in the design and planning of the built environment, U) to promote efficient and timely development assessment that is proportionate to the likely impacts of proposed development, (k) to share responsibility between all levels of government for planning and the management of growth. The term 'sustainable development' was defined: Sustainable development is development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs. Sustainable development is achieved by the integration of relevant economic, environmental and social considerations in decision-making about planning and development.

The Planning Bill 2013 was passed by the Legislative Council on 30 October 2013 and, following a number of amendments by the Legislative Council, debate was adjourned on 28 November 2013 and the Bill subsequently lapsed.7 The associated Planning Administration Bill 2013 was passed by both Houses of Parliament, and subsequently lapsed. The Department's website states that the NSW government is considering options on the best means to implement planning reform. While many of the recommendations of the Independent Review were not reflected in the Planning Bill 2013, and that legislation was not enacted, one of the significant concerns of the Independent Review for accessibility of planning information has been addressed by the Department through the introduction of a suite of online planning tools: the Planning Viewer enables access to the planning controls that apply to a particular property by entry of the property address; Interactive Buildings shows the planning requirements for minor building work which is exempt development displayed on a residential, commercial or industrial property; and Local Insights provides access to development information and trends about individual local government areas, including display of current development applications on a map. 8 Amendments to the EPAA made by the Environmental Planning and Assessment Amendment Act 2014 to establish an electronic database of instruments and maps, and to provide a website (the NSW 7 8

See . See .

62

planning portal) from which they can be accessed, commenced on 30 November 2015. Other amendments, including provisions for development consents to operate from the date the consent is registered on the NSW planning portal by the consent authority, or following a determination of the LEC on appeal, are yet to commence.

Issues in planning control Who decides - State or local government? As noted above, one of the objects of the EPAA is to 'promote the sharing of the responsibility for environmental planning between the different levels of government in the State'. The delineation of appropriate division of responsibilities between State and local government has been a significant issue since the introduction of comprehensive planning legislation in New South Wales in 1945, in Pt XIIA of the Local Government Act 1919. The first comprehensive planning legislation was introduced following the Commonwealth-State Housing Agreement in 1945, under which the Commonwealth government agreed to provide funds to the States for public housing, on condition that the States ensured that there was adequate legislation to control town planning. Before this, planning controls were minimal, and essentially negative. Nineteenth century legislation allowing local government to control the subdivision of land, the erection of roads and building standards was supplemented by the Local Government Act 1919, which allowed local government to restrict undesirable development. This was primarily achieved through s 309 (in Pt XI), under which councils could proclaim residential districts from which offensive uses were excluded. The focus was initially on local government. The Cumberland County Council was created with representatives of the Sydney City Council and from 5 to 12 other councils, to prepare the County of Cumberland Planning Scheme (covering the County of Cumberland, which was essentially then metropolitan Sydney). Local councils were given the power to prepare more detailed local planning schemes, either alone or as a joint scheme with other councils. The Minister and local councils had the power to regulate interim development, that is, development during the preparation of a local planning scheme, or during suspension of its provisions or those of the County of Cumberland Planning Scheme. This position was not without difficulty, however, as the Cumberland County Council had to rely on the support of the relevant Minister to co-ordinate activities of other State government agencies. Further, the role of the local council was limited in the finalisation of a planning scheme, which was formally made by the Minister following a report by the Town and Country Planning Advisory Committee, with no more than three-quarters of its members coming from the council. The County of Cumberland was disbanded in 1963 with the creation of the State Planning Authority. Central control of planning by the State government has since then been in the hands of either a statutory authority or a government department, currently the Department of Planning and Environment.9 Local councils continued to have primary responsibility for the preparation of local planning schemes, subject 9

LAND USE PLANNING

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

Referred to in this chapter as 'the Department'. The Department is part of the Planning and Environment Cluster, which advises the Minister for Planning, the Minister for the Environment, and the Minister for Local Government. From 15 July 2015, as a consequence of the enactment of the Government Sector Employment Act 2013, the former Director-General of the Department is now referred to as the Secretary. Some of the documents referred to in this chapter and Chapter 4 still refer to the 'Director-General'.

63

to ultimate approval by the Minister. While there were some legislative amendments under the Local Government (Town and Country Planning) Amendment Act 1962 to speed up the process, preparation and approval of a planning scheme was still a lengthy process. Many councils relied on the interim development controls available in Pt XIIA, and either did not prepare a planning scheme or used the interim development control provisions to 'spot rezone' land without reference to the prescribed planning scheme. By the early 1970s the complexity of both the planning process and the approvals system was apparent. An added impetus to reform came in the growing awareness of environmental issues, and in particular the need to ensure consideration of environmental factors in development control decision-making. The EPAA came into effect on 1 September 1980 and introduced three types of environmental planning instruments (EPis): State environmental planning policies (SEPPs), regional environmental plans (REPs) and local environmental plans (LEPs). The State government had primary responsibility for the formulation and implementation of SEPPS and REPs, and local government had primary responsibility for the formulation of LEPs. When the EPAA was first enacted, there was no hierarchy between the three types of EPis: s 36 of the EPAA provided that to the extent of any inconsistency the provisions of a later instrument were to prevail over any earlier instrument, unless a contrary intention appeared. Section 36 was amended in 1996 and again in 2005 and 2008, and its current operation is discussed below. Gleeson and Low characterise the legislative changes introduced in New South Wales (as well as in other States such as Victoria) in the 1970s and 1980s, including the reference in the EPAA to 'environmental planning', as reflecting green democratic aspirations.10 They trace a subsequent shift during the 1980s and 1990s, driven by a larger political-economic reform agenda, leading to reductions in participation and accountability through such means as involvement of the private sector in development control.11 The balance of responsibilities for planning and development control between State and local government has shifted since the enactment of the EPAA. The amendment of s 36 in 2005 to introduce a formal hierarchy of planning instruments is one example of this. Environmental planning instruments are formally made by the Minister; the 'relevant planning authority' responsible for proposing and formulating a local planning instrument may be the council, or the Secretary, or other bodies authorised by the Minister. In development control, the Minister has always had power under the EPAA (initially conferred bys 101) to 'call in' particular development applications for determination, qualified to situations 'where the Minister considers it expedient in the public interest to do so, having regard to matters of significance for State or regional environmental planning'. The 1985 amendments to the EPAA gave the Minister power to call in and make decisions for applications to consent to development which would otherwise be prohibited, thus bypassing the planning process. The 1997 amendments to the EPAA introduced the concept of 'State significant development' for which the Minister was the consent authority. In 2005 Pt 3A (Major Projects) was inserted in the EPAA; those provisions were repealed in 2011, and the current provisions for determining applications for State significant development are now in Div 4.1 of Pt 4 of the EPAA. 10 11

B Gleeson and N Low, 'Unfinished Business: Neoliberal Planning Reform in Australia' (2000) 18 UPR 7 at 7. Ibid at 12-18.

64

LAND USE PLANNING

ENVIRONMENTAL AND PLANNING LAW IN NEW SOUTH WALES

The Environmental Planning and Assessment Amendment Act 2008 (the 2008 Amendment Act) introduced new players in planning and development assessment decision-making. The Planning Assessment Commission (PAC) consists of a chairperson and between three and eight members, appointed by the Minister. Each member is to have expertise in at least one of planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism, or government and public administration. The central roles for the PAC are the determination of applications for approval and modification of major projects (see p 126); a general advice and review function on the request of the Minister; and to exercise the function of a regional panel, an independent hearing and assessment panel or a planning assessment panel conferred on it by the Minister (EPAA s 23D). The PAC is prohibited from employing staff, and relies on support from staff seconded from, or facilities provided by, government agencies, including the Department and local councils. A joint regional planning panel (JRPP) may be constituted by the Minister for a particular part of the State. The required expertise for appointment is the same as that for the PAC. Three members are appointed by the Minister and two by the applicable local council. One of the members appointed by the Minister is the chairperson. There are six JRPPs, for Sydney East, Sydney West, Hunter and Central Coast, Northern Region, Southern Region and Western Region. The Central Sydney Planning Committee continues to function for the City of Sydney. The functions of a JRPP are set out in s 23G and include functioning as a consent authority as provided in an EPI; functions conferred under Div lAA of Pt 6; and, at the request of the Minister, to provide advice on planning or development matters or EPis relating to the part of the State for which it is appointed. The approvals function of the JRPPs includes determining applications for development with a capital investment value of more than $20 million, developments where the relevant council is involved or has an interest, and certain coastal developments (see p 127). The Greater Sydney Commission Act 2015, which commenced on 27 January 2016, constitutes the Greater Sydney Commission (the Commission) and confers planning and other functions. The Commission has 13 members: four appointed by the Minister, one as Chief Commissioner and the others as Environment Commissioner, Social Commissioner and Economic Commissioner; six District Commissioners, nominated by councils in each district; and three ex officio members, being the Secretary of each of the Department, the Department of Transport, and the Treasury. The principal objectives of the Commissioner include to lead metropolitan planning for the Greater Sydney Region, which is identified in Sch 1 to include all the local government areas in the area bounded by Hawkesbury to the north, Blue Mountains to the west, and Wollondilly to the south; and to promote orderly development, the alignment of infrastructure decision-making with land use planning, and supply of housing; and to encourage development that is resilient and takes into account natural hazards. The functions of the Commission include providing advice and recommendations to the Minister, assisting local councils, and other functions including the power to make LEPs (EPAA s 53A) and prepare draft strategic plans (discussed below). The Minister may constitute a Sydney planning panel for a specified part of the Greater Sydney Region; that panel is taken to be a JRPP, and any JRPP previously constituted under s 23G for that part of the Greater Sydney Region is abolished on constitution of the Sydney planning panel.

65

Binding or flexible planning controls? Part XIIA (Town and Country Planning Schemes) in the Local Government Act 1919 ':as odelled on the 1932 UK legislation, the Town and Country Planning Act. The plannmg :hemes introduced under Pt XIIA shared the essential characteristics of the United Kingdom model, that is, they were binding as a matter of law on both members of the public and the council. . . The environmental planning instruments made under the EPAA are also bmdmg. They have varied, however, in the extent to which they .i~p~se specific co~trols,_ or allow flexibility. LEPs primarily operate through specification of zones, m which certain types of development are permissible without needing development consent, or require consent, or are prohibited, and through speci~cation of dev_el~pmen~ sta~dards for development. Flexibility in zoning has been achieved by specifymg ob~ect~ves for particular zones, and requiring councils to determine ~evelop~ent apphcahons by reference to consistency with zone objectives. Before the mtroduchon of standard LEP provisions, some LEPs had no prohibited uses identified, a~lowing t~e c~uncil to approve any development that it regarded as being consistent with the ~~Jectlves _of the zone: Manly Council v Hortis.12 Flexibility in development consent decis10n-makmg has a~so been achieved through SEPP 1 - Development Standards (discussed below), under which a council can decide to waive compliance with a particular development standard, and with similar provisions in the Standard LEP (see below). Further flexibility in planning controls was introduced by the 2008 Amendment Act, under which an EPI can make provision for zoning of land to have effect only for a specified period or in specified circumstances (EPAA s 26(3A)).

Separate systems, or integrated planning controls? The current system is based on sector-specific approaches to regulation. The various chapters in this book dealing with such matters as pollution, natural resou~ce man~gement, heritage and water are a reflection of this. There are some atte~pts at 1:.1-tegration, for example, in the provisions for assessment of development characterised as _mtegra~ed development' under Div 5 of Pt 4 of the EPAA (see Chapter 4). However, it remams the case that a particular project may require consideration of a number of regulatory regimes.

Planning under the Environmental Planning and Assessment Act 1979 Types of planning instruments As originally enacted, the EPAA established three types of environmental planning instruments (EPis): • State environmental planning policies (SEPPs); • regional environmental plans (REPs); • local environmental plans (LEPs). 12

(2001) 113 LGERA 321.

66

The 2008 Amendment Act removed REPs with effect from 1 July 2009, and REPs in force at that date13 continued in force as SEPPs, subject to review (discussed below).14 Those planning scheme ordinances, or interim development orders, made under Pt XIIA of the Local Government Act 1919 and still in force at the commencement of the EPAA, were continued in force after the EPAA commenced as a 'deemed environmental planning instrument', and are continued in force after the amendments made by the 2008 Amendment Act.15 Other instruments and documents relevant in land use control include: • • • •

development control plans (DCPs); directions under s 117(2) of the EPAA; circulars from the Department; strategies and policies, such as the Metropolitan Strategy.

SEPPs and some LEPs are available online at . In general, an amendment to an existing EPI will require an amending EPI, which will require compliance with the same procedure as the initial EPI (set out below). Some amendments, including corrections of obvious misdescriptions, spelling and numbering errors, and grammatical mistakes, which address matters in the principal instrument that are of a 'consequential, transitional, machinery or other minor nature', or which deal with matters that the Minister considers do not warrant compliance with the conditions precedent for the making of the instrument because they will not have any significant adverse impact on the environment or adjoining land, can be made without complying with that procedure (EPAA s 73A(1)). The Greater Sydney Commission Act 2015 introduces a new Pt 3B into the EPAA dealing with strategic planning, under which regional and district plans may be prepared.

Review of EPls Section 33B enables the Minister to specify a staged repeal program for existing EPis, so as to facilitate the staged implementation of standard instruments and periodic review of existing instruments. The EPis identified through this process are automatically repealed at the time specified for repeal (s 33B(3)). The Minister may make an LEP, adopting the mandatory provisions of the standard instrument, to take effect after repeal while a replacement LEP is being prepared under the Act. REPs in force as at 1 July 2009 and continuing in force as if they were SEPPs were to be reviewed 'as soon as practicable'. New EPis may be made by the Governor (as a SEPP), or by the Minister (as an LEP), to transfer existing environmental planning provisions in REPs to appropriate new or existing principal instruments applying to the land concerned (Sch 6, cl 121).

State Environmental Planning Policies Types A SEPP may be made for the purpose of environmental planning by the State, which may include provisions with respect to any matter that is, in the opinion of the Minister, 13 14 15

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The State Environmental Planning Policy (Repeal of REP Provisions) 2009 repealed seven REPs that were redundant, and amended a further 13 REPs to remove a number of obsolete clauses. EPAA Sch 6, ell 120, 121. EPAA Sch 6, cl 123.

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of State or regional environmental planning significance, or of environmental planning significance to a district within the meaning of Pt 3B (EPAA s 37(1), (2)). SEPPs are made by the Governor. Some SEPPs apply to specific sites or projects, for example, SEPP 29 - Western Sydney Recreation Area, SEPP 39 - Spit Island Bird Habitat and SEPP 47 - Moore Park Showground. In 2007 a number of other SEPPs relating to specific infrastructure projects were repealed and replaced by SEPP (Infrastructure) 2007 (discussed below). Many SEPPs establish policy frameworks for matters of environmental significance. There are two types of such SEPPs. Some impose an obligation to obtain development consent for certain activities, such as SEPP 14 - Coastal Wetlands (which restricts activities such as land clearing and drainage work on over 1300 identified wetlands); SEPP 19 - Bushland in Urban Areas (which is designed to protect bushland in public open space zones and reservations, and to ensure that bush preservation is given high priority when LEPs are prepared); and SEPP 26 - Littoral Rainforests (which applies to specified local government areas on the Pacific coast). Others impose a requirement to consider specified matters, or impose additional procedures, for activities that would otherwise require development consent; these include SEPP 44 - Koala Habitat Protection and SEPP 71 - Coastal Protection.16 SEPP 71 is considered in detail in Chapter 9. There are a number of SEPPs focusing on particular industries or activities of significance in land use decision-making. Some make permissible with consent development that would otherwise be prohibited under an EPI. SEPP (Housing for Seniors or People with a Disability) 2004 replaced the former SEPP 5 - Housing for Older People or People with Disability, under which such housing was permissible in residential areas. SEPP (Housing for Seniors or People with a Disability) 2004 applies to land zoned primarily for urban purposes, and permits development for the purpose of any form of seniors housing, and seniors housing in the form of a hostel, residential care unit or serviced self-care housing on land adjoining land zoned for urban purposes. The SEPP does not apply to environmentally sensitive land or other land listed in Sch 1. Part 3 of the SEPP sets out design requirements, including design principles; Pt 4 provides development standards that must be complied with. Another example of this type of SEPP is SEPP (Affordable Rental Housing) 2009. The aims of the SEPP are to provide a consistent planning regime for the provision of affordable rental housing, to facilitate the effective delivery of new affordable rental housing, and to facilitate the retention and mitigate the loss of existing affordable rental housing. Types of housing include infill development for dual occupancies, multi-dwelling housing or residential flat buildings to be used for affordable housing for a period of 10 years; boarding houses, supportive accommodation, and group homes; and development by social housing providers and public authorities. The SEPP permits affordable housing development on land zoned for various residential purposes, or equivalent zones, and in some instances prescribes standards that must be met - for example, provision of communal living space, and requirements for a boarding house manager, in relation to development for a boarding house. 16

At the time of writing a draft Coastal Management State Environmental Planning Policy was on exhibition. This proposed SEPP is part of a package of reforms to coastal management, including a Coastal Management Bill 2015 and a new Coastal Management Manual. The draft SEPP is intended to maintain and enhance the relevant provisions in SEPP 14 - Coastal Wetlands, SEPP 26 - Littoral Rainforests and SEPP 71 - Coastal Protection; and once those provisions, and provisions in the SEPP (Infrastructure) 2007 relating to coastal protection works, are consolidated in the new SEPP, the current instruments will be revoked.

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Some SEPPs have been made to overcome conflict between local and State government strategies, for example, SEPP 53 - Metropolitan Residential Development, under which the Minister could alter local planning controls to facilitate medium density development of sites located close to transport, employment and services. SEPP 53 originally applied to 13 councils in the greater metropolitan region. Following the adoption of a residential development strategy by the last council to which it applied, Ku-ring-gai, SEPP 53 was repealed from 3 June 2011. Other SEPPs provide policy or other planning detail: SEPP 15 - Rural Land-sharing Communities, SEPP 21 - Caravan Parks, SEPP 30 - Intensive Agriculture, SEPP 33 - Hazardous and Offensive Development, SEPP 36 - Manufactured Home Estates, SEPP 62 - Sustainable Aquaculture, SEPP 65 - Design Quality of Residential Apartment Development. SEPP 65 sets out 10 design quality principles for residential apartment buildings, and requires a consent authority to take into consideration in determining a development application the advice (if any) obtained from the relevant design review panel, the design quality of the residential apartment development when evaluated in accordance with the design quality principles, and the Residential Flat Design Code (for development applications lodged before 19 June 2015) or the Apartment Design Guide (for development applications lodged after 19 June 2015 and determined after 17 July 2015). Significant SEPPs of this type are SEPP 1 - Development Standards and the SEPPs relating to exempt and complying development. Both were intended to provide flexibility in the application of planning controls in specified circumstances, and to achieve uniformity in approach. Both are now supplemented by similar provisions in LEPs.

SEPP 1 - Development Standards The flexibility provided by SEPP 1 is now implemented in those LEPs which adopt the standard provisions by cl 4.6. The central focus of this flexibility is in the concept of a 'development standard', which is a provision of an EPI which specifies requirements or fixes standards in respect of any aspect of development, and includes numerical standards such as floor space of a building, area of land, and bulk, scale, size, height and density of a building; and other requirements such as character, location, density, provision of open space and facilities for vehicle movements, road patterns and drainage (EPAA s 4(1)). Under SEPP 1, a person intending to carry out development that would otherwise be restricted by a development standard can make a development application for that development, supported by a written objection (referred to as a 'SEPP 1 objection') that compliance with that development standard is unreasonable or unnecessary in the circumstances of the case. Examples of ways to establish that compliance is unreasonable or unnecessary include demonstrating that the objectives of the development standard are met notwithstanding non-compliance; that the underlying objective or purpose of the development standard is not relevant to the proposed development; that the underlying objective or purpose would be defeated or thwarted if compliance was required; that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard; and that the zoning of the land is unreasonable or inappropriate so that a development standard appropriate for that zoning is unreasonable or unnecessary. 17 The consent authority can, with the concurrence of the Secretary of the Department, grant development consent if satisfied that the objection is well grounded and that 17

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W ehbe v Pithvater Council (2007] NSWLEC 827.

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the granting of consent is consistent with the aims of SEPP 1. Those aims are stated in cl 3 to be to provide flexibility in the application of planning controls operating by virtue of development standards, in circumstances where strict compliance would be unreasonable or unnecessary or tend to hinder the objects specified ins 5(a)(i) and (ii) of the EPAA. The LEC upheld the validity of SEPP 1 in IDA Safe Constructions Pty Ltd v Woollahra Municipal Council,18 holding that, even though the administration of SEPP 1 would operate at the local level, the principles embodied in it were of significance for State environmental planning. SEPP 1 does not apply where the applicable LEP takes the form of the Standard LEP, including cl 4.6. Clause 4.6 of the Standard LEP provides that consent may be granted for development even though the development would contravene a development standard. The applicant must provide a written request seeking to justify the contravention of the development standard by demonstrating that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard (cl 4.6(3)). The consent authority may grant consent if satisfied that the applicant's written request has adequately addressed the matters required to be demonstrated by cl 4.6(3), that the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and the concurrence of the Secretary has been obtained (cl 4.6(4)). The existence of a written request is a jurisdictional fact, but whether a request actually demonstrates the matters required by cl 4.6(3) to an objective standard is not - that is a matter to be determined by the consent authority.19 While there are similarities between SEPP 1 and cl 4.6, so that the case law on SEPP 1 may be of assistance in applying cl 4.6, that provision must be applied in its own terms. 20 Councils are generally entitled to assume the concurrence of the Secretary under both SEPP 1 and cl 4.6, but must report to the Secretary on a quarterly basis on the use of variations to development standards (Planning Circulars 08-003, 08-014). While the LEC can uphold a SEPP 1 objection in determining an appeal without the concurrence of the Secretary (LECA s 39(6)), the court must be satisfied that a consideration of the matters in cl 8(a) and (b) of SEPP 1 justifies the upholding of the SEPP 1 objection; those matters are whether non-compliance raises any matter of significance for State or regional planning, and the public benefit of maintaining the relevant planning controls: Wehbe v Pittwater Council.21 The most significant issue in the application of SEPP 1, and cl 4.6, has been in identifying whether a particular provision is properly characterised as a 'development standard' or operates as a prohibition. In North Sydney Municipal Council v PD Mayoh Pty Ltd (No 2), 22 the Court of Appeal distinguished provisions which describe the characteristics of particular land on which particular development is prohibited, from those which specify how and to what extent permissible development can be carried out. A development standard regulates permissible development. The difficulty 18 19 20 21 22

(1981) 48 LGRA 62. Lane Cove Council v Orea Partners Management Pty Ltd (No 2) (2015] NSWLEC 52. Four2Five Pty Ltd v Ashfield Council (2015] NSWCA 248.

(2007] NSWLEC 827. (1990) 71 LGRA 222.

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in determining whether a particular provision in an EPI is a development standard arises from the difficulty in distinguishing conditional prohibition from regulation. For some time the LEC has applied the two-step analysis of Giles JA in Strathfield Municipal Council v Poynting: 23 the first step being to determine whether a provision prohibits the development under any circumstances, in which case it will be a provision controlling development and not a development standard; and the second step being to determine whether the provision specifies a requirement or fixes a standard in relation to an aspect of the (non-prohibited) development. The Court of Appeal has subsequently noted the difficulties which this approach causes in some contexts and has restated that the critical question will be to define the elements of the proposed development which are essential elements in the context of the LEP: Blue Mountains City Council v Laurence Browning Pty Ltd. 24 In Agostino v Penrith City Council, 25 Tobias JA (with whom Giles JA agreed) held that the proposed development must first be identified and the criteria which are the essential conditions in determining whether the particular development is permissible then determined. Determination of the essential elements of a development is not restricted to elements within the zoning table of the relevant planning instrument. In dissent, McClellan CJ at CL was critical of the focus on identifying the 'essential element' of the development and doubted the two-step approach of Poynting, holding that, if a relevant provision is a 'requirement' or 'standard' in relation to an aspect of a proposed development, it will be a development standard. Recent decisions of the LEC have applied the Poynting two-step approach, as refined in Residents Against Improper Development Inc v Chase Property Developments Pty Ltd, 26 in a series of propositions (references omitted): 27 • the provision in question must be seen as part of the environmental planning instrument as a whole; • if a provision falls within one of the matters in subparas (a) to (o) of the definition of 'development standard', that fact alone does not mean that the provision is thereby a development standard: the provision must be in relation to the carrying out of development and must fix requirements or standards in respect of an aspect of the development; • although there is a distinction between a provision that is a development standard and a provision controlling development in some other way, the dichotomy between 'regulation' and 'prohibition' cannot replace the definition in the EPAA; care must be taken lest form govern rather than substance; • a provision that prohibits the development under any circumstances controls development, but is not a development standard; • if the provision does not prohibit the development under any circumstances and the development is permissible in the circumstances expressed in the provision (whether expressed positively or negatively), then in most instances the provision will specify a requirement or fix a standard in respect of an aspect of the development; 23 24 25 26 27

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(2001) 116 LGERA 319. [2006] NSWCA 331. (2010) 172 LGERA 380. (2006) 149 LGERA 360. Wilson Parking Australia 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA 232; Karimbla Constructions Services (NSW) Pty Ltd v Pittwater Council [2015] NSWLEC 83; Lotus Project Management Pty Ltd v Pittwater Council [2015] NSWLEC 166.

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• it is necessary to identify the development in order to say whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development; • an essential condition of the definition of 'development standard' is that the requirements specified or standards fixed in respect of any aspect of the development must be requirements or standards which, ex hypothesi, are external to the aspects of that development; and • the key consideration in any debate over the second step (the question whether the provision specifies a requirement or fixes a standard in respect of an aspect of the development) is identifying a relevant aspect of the development; in this regard, the list of aspects of development in subparas (a) to (n) of the definition of 'development standard' shows that a broad view of what is an aspect of a development should be taken.

Exempt and complying development There have been a number of SEPPs dealing with exempt and complying development. The concept of exempt development was introduced in 1998 and is development that, subject to satisfying pre-specified standards, does not need development consent. Complying development is development identified in the applicable EPI by reference to specific standards. A person who wishes to undertake a complying development can choose either the local council or an accredited certifier to certify that the proposal complies with the standards. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (the Codes SEPP 2008) came into force on 27 February 2009, intended to streamline assessment processes by providing exempt and complying development codes that have State-wide application, instead of local controls. The Codes SEPP 2008 contains a General Exempt Development Code (specifying types of development and applicable development standards); an Advertising and Signage Exempt Development Code; a Temporary Uses and Structures Exempt Development Code; a General Housing Code, setting out types of complying development and applicable development standards; a Rural Housing Code; a Housing Alterations Code; a General Development Code; a Commercial and Industrial Alterations Code; a Commercial and Industrial (New Buildings and Additions) Code; a Subdivisions Code; a Demolitions Code; and a Fire Safety Code. Clause 1.19 of Codes SEPP 2008 provides exclusions from the application of specified Codes; for example, to be complying development specified for the General Housing Code or the Rural Housing Code, the development must not be carried out on land within a heritage conservation area or a draft heritage conservation area, land identified in an EPI as being, among other things, environmentally sensitive land or land that is reserved for a public purpose in an EPI. The issue of overlap and duplication of provisions in other SEPPs, LEPs or other controls is addressed in cl 1.8 (other SEPPs), cl 1.9 (LEPs and development control plans) and cl 1.10 (which provides that two or more instruments are taken to specify the same development if they specify that development for the same purpose may be carried out on the same land even though there may be some differences in the specifications or development standards for that development).

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Major projects and infrastructure Another significant use of SEPPs has been to identify and make provision for major projects and infrastructure development. The State Environmental Planning Policy (State and Regional Development) 2011 (the SRD SEPP) came into effect on 1 October 2011, as part of the process of repeal of Pt 3A of the EPAA (see p 125). The SRD SEPP declares certain development to be State significant development, being development listed in Schs 1 and 2 if it requires development consent (cl 8). The SRD SEPP declares certain development to be State significant infrastructure, being development listed in Sch 3, which is, by the operation of a SEPP, permissible with requiring development consent (cl 14) or development listed in Sch 4 (cl 15). Development declared to be critical State infrastructure is listed in Sch 5 (cl 16). The Minister has power to declare other specified development as State significant development (EPAA s 89C). The development listed in Sch 1 is identified by reference both to type and size, and in some instances location, for example, aquaculture development with a capital investment value of more than $30 million, or aquaculture located in an environmentally sensitive area of State significance. Schedule 2 lists specific sites, including the Sydney Opera House. The procedure for determining applications for State significant development and State significant infrastructure is considered in detail at p 125££. SEPP (Infrastructure) 2007 consolidates a number of previous project-specific SEPPs and standardises provisions relating to infrastructure across New South Wales. Part 3 of the SEPP provides development controls for some 25 types of infrastructure, including educational establishments, health services, ports, rail, road and traffic facilities, sewerage works, soil conservation works and water supply works. Schedule 1 of the SEPP lists a range of development that, if carried out by or on behalf of a public authority and meeting the specified development standards, and in accordance with the requirements of cl 20 of the SEPP, is exempt development. Those requirements include a requirement that it not be designated development (cl 20(2)(d)). The SEPP requires public authorities to consult with local councils and other public authorities. SEPP (Sydney Region Growth Centres) 2006 is the initial planning instrument for the implementation of the Metropolitan Strategy released on 4 December 2005, and provides for the release of land for residential, employment and other urban development in the north west and south west growth centres of the Sydney region. The Minister can declare any precinct to be released for urban development, and any application for development consent for specified large scale development must be accompanied by an assessment of the consistency of the proposed development with the relevant growth centre structure plan (Environmental Planning and Assessment Regulation 2000 (EPAR) ell 275, 276). The Growth Centres SEPP was the first EPI to receive biodiversity certification under Pt 7 of the Threatened Species Conservation Act 1995, confirmed by legislation (see p 57). 28

Procedure for making SEPPs There are no specified procedures for the making of a SEPP in Pt 3, Div 2 of the EPAA. The function of preparing a SEPP was formerly expressly conferred on the Secretary. The Minister has power to recommend that the Governor make a SEPP, and that recommendation is an exercise of executive power. The EPAA does not require a ministerial recommendation, and the power of the Governor to make a SEPP is conditional only

on the advice of the Executive Council and the requirement that the SEPP be 'for the purpose of environmental planning by the State'. 29 The Minister is required, ~e!ore recommending the making of a SEPP by the Governor, to take such steps as the Minister considers appropriate or necessary to publicise an explanation of a proposed SEPP and to seek and consider submissions on it (EPAA s 38). Section 34A of the EPAA also requires the Secretary to consult with the Chief Executive of the Office of Environm:nt and Heritage if, in the opinion of the Secretary, critical habitat or threatened species, populations or ecological communities, or their habitats, wil_l or may be ad_v~rsely affected by the proposed SEPP. The consultation process consists of the provis10n of information; a period for comment; and consideration by the Secretary of any comments made (s 34A(3), (5), (6)).

Local Environmental Plans The provisions for LEPs are contained in Div 4 of Pt 3 of the EPAA. Under s 53, the Minister may make EPis for the purpose of environmental planning in each local government area, and in such other areas of the State (includi~g the coastal waters of the State) as the Minister determines. While the heading to Div 4 and s 53 refer to an 'LEP', the provisions in Div 4 refer generally to an 'instrument', and s 53(2) states that instruments made under Div 4 of Pt 4 'may be called a local environmental plan (or LEP)'. As originally enacted, an LEP could relate to the whole or part of a lo~al government area (s 54(1)). Two or more councils could decide to prepare an LEP m resr~ct of the whole or any part of the land within their areas (s 54(2)), one example of a Jorn~ LEP being the Waverley and Woollahra Joint Local Environmental Plan 1991 - Bondi Junction Commercial Centre, setting out the planning parameters for the redevelopment of Bondi Junction. Following the amendments made by the 2008 Amendment Act, two or more local authorities can prepare a joint LEP to make a single principal or amending LEP in relation to the whole of their combined areas (EPAA s 54(5~)- ~or local government areas in the Greater Sydney Region, the Greater Sydney Commiss10n, rather than the Minister, may make an EPI which may be called an LEP (EPAA s 53A). In addition to enabling the involvement of persons or bodies other than the local council and the Minister, Div 4 of Pt 3 envisages the making of EPis that may not be called LEPs. An LEP may be made in order to consolidate existing LEPs, to replace older planning instruments or to amend a principal LEP to rezone particular land in the area ('spot rezoning').

Procedure for making LEPs The 'relevant planning authority' for the purpose of making an LEP is the council for the area to which the proposed instrument is to apply, or the Secretary or other perso_n or body specified in the regulations if the Minister so directs (EPAA s 54(1)). JRPP is prescribed as a relevant planning authority (EPAR cl 9). The Minister may direct that the Secretary (or any other person or body prescribed by the regulations) is the relevant planning authority for a proposed LEP if:

':°

• the proposed LEP relates to a matter that, in the opinion of the Minister, is of State or regional environmental planning significance; 29

28

Threatened Species Conservation Amendment (Special Provisions) Act 2008.

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Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc (2011] NSWCA 378.

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• the proposed instrument makes provision that, in the opinion of the Minister, is consequential on the approval of a concept plan for a Pt 3A project, the making of another environment planning or other instrument, or changes made to a standard instrument under s 33A; • the PAC or a JRPP has recommended that the proposed LEP be made; • the council for the area has, in the opinion of the Minister, failed to comply with its obligations with respect to the making of the proposed instrument or has not carried out those obligations in a satisfactory manner; or • the proposed LEP is to apply to an area that is not within a local government area. (EPAA s 54(2)) If the relevant planning authority is not the local council, the Minister can direct the relevant council to provide studies or other information in its possession relating to the proposed instrument (EPAA s 54(4)). Part 3 Div 4 of the EPAA provides a three-step process for the making of an LEP. The first step is the preparation by the relevant planning authority of a 'planning proposal', a document that explains the intended effect of the proposed LEP and sets out the justification for making the proposed LEP. While not spelt out in the EPAA, a planning proposal may be prepared at the written request of a person. 30 The planning proposal is to include a statement of objectives or outcomes; an explanation of proposed provisions; justification for the objectives, outcomes and provisions and the process for their implementation; maps; and details of proposed community consultation (s 55). The relevant planning authority must give effect to any applicable district plan or regional plan in preparing a planning proposal (s 75AI(2)). The Department has issued guidelines for the preparation of planning proposals, in accordance withs 55(3) of the EPAA. 31 The second step in the process is the 'gateway determination'. The relevant planning authority is to forward the planning proposal to the Minister, who, after review, determines:

• whether the matter should proceed (with or without variation); • whether the matter should be resubmitted (for example, for further studies or other information); • community consultation required; • consultation required with any State or Commonwealth public authorities adversely affected; • whether a public hearing is to be held by the PAC or other specified person or body;and • the timing for completion of the various stages of the procedure for making the proposed instrument. (EPAA s 56(1), (2)) The Minister can arrange for review of a planning proposal to be conducted by the PAC or a JRPP if there has been any delay in the matter being finalised, or if for any other reason the Minister considers it appropriate to do so (s 56(5)). The Minister can alter a 'gateway' determination at any time (s 56(7)). 30

31

The relevant planning authority may enter into an agreement with a person who requests the prepa:ation of a planning ~roposal 'for the payment of the costs and expenses incurred by the authority m undertaking studies and other matters required in relation to the planning proposal': EPAR cl 11. 'A guide to preparing planning proposals' (2012), .

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The community consultation requirements referred to ins 56(2)(c) are addressed in more detail in s 57. Determination of the community consultation requirements may include a determination that the matter does not require community consultation (s 56(3)). The relevant planning authority must consult the community in accordance with the community consultation requirements (s 57(1)). That may include provision of a summary of detailed provisions rather than full details of the planning proposal if the Secretary is satisfied that the summary provides sufficient detail for community consultation (s 57(2)). The community consultation requirements may include compliance with the notice requirements identified in the Department's 'A Guide to Preparing Local Environmental Plans'. 32 Any person may make a written submission during the period for community consultation (other than on mandatory matters under s 33A). If the person requests, and the relevant planning authority considers that the issues raised in the submission are of such significance that they should be the subject of a hearing, the relevant planning authority is to arrange a public hearing. The community consultation required is completed when the relevant planning authority has considered any submissions made and the report of any public hearing (s 57(8)). The relevant planning authority may, at any time, vary its proposals as a consequence of considering submissions or a report, or for any other reason; if it does so, it is to forward a revised proposal to the Minister (s 58(1), (2)); however, if it does so, further community consultation is not required unless the Minister so directs (s 58(3)). It is important to note that while a failure to comply with a requirement of a determination under s 56 does not prevent the planning instrument being made or invalidate it once made, if community consultation is required under s 57, the instrument is not to be made unless the community has been given an opportunity to make submissions and the submissions have been considered (s 56(8)). 33 The third step in the process is the making of the LEP. The Secretary makes arrangements for drafting the LEP (by the Office of the Parliamentary Counsel) to give effect to the final proposals, following which the Minister (or the Minister's delegate) may make the plan, with or without variation, or decide not to proceed, and may defer the inclusion of a matter in the proposed plan (s 59(1), (2), (3)). If the Minister, or delegate, decides not to proceed, or to defer a matter, the procedures to be complied with before resubmission must be specified (s 59(4)). 34 When the plan is made it is notified on the NSW Legislation webpage and becomes effective on the day it is notified on the webpage. 35 The regulations may make further provision with respect to consultation requirements, advertising requirements and concurrence requirements (s 60). Further detail of the plan-making process is provided in the Department's 'Guide to preparing local environmental plans' (2013). 32

33 34 35

See . Section 5.5.2 of the Guide distinguishes between 'low impact proposals', that is proposals that are consistent with the pattern of surrounding land use zones and/ or land uses, consistent with the strategic planning framework, present no issues with regard to infrastructure servicing, are not a principal LEP, and do not reclassify public land, and require exhibition for 14 days; and all other proposals, which require exhibition for 28 days. Section 5.5.2 specifies how public exhibition is 'generally undertaken'. De Ange/is v Pepping (2015] NSWCA 236. The Department maintains a Local Plan Making Tracking System: see . The plan will specify the date on which it is to come into force, which may be on notification or on a subsequent date.

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Delegation of plan-making powers

The legislative framework for the development and making of LEPs is outlined above. In practice, local councils have a significantly greater role in the process than the legislation would suggest. The Minister has delegated to local councils all the functions under s 59 of the EPAA if the council is the relevant planning authority for a proposed instrument, if the Secretary gives a written authorisation to exercise the delegation, and subject to the terms of the authorisation. Planning Circular PS 12-006 (29 October 2012) states that the following types of draft LEPs will routinely be delegated to councils to prepare and make following a gateway determination that the planning proposal can proceed: • mapping alterations; • s 73A matters (for example, amending references to documents/agencies, minor errors and anomalies); • reclassifications of land; • heritage LEPs related to specific local heritage items supported by an Office of Environment and Heritage endorsed study; • spot rezoning consistent with an endorsed strategy and/or surrounding zones; and • other matters of local significance as determined by the gateway. The delegation operates in respect of a draft LEP on receipt by the council of a Written Authorisation to Exercise Delegation (the Authorisation), as part of the gateway determination. A council will be required to formally accept the delegation before the Department will issue an Authorisation. If a council chooses to accept the delegation, it may sub-delegate the function to an officer within council (usually the general manager or planning director) who will exercise the delegation. 36 Reviews

There are two administrative review processes for the Pt 3 plan-making process: • pre-gateway reviews: which may be requested by a proponent before a planning proposal has been submitted for a gateway determination (informed by advice from JRPPs or the PAC); • gateway reviews: which may be requested by a council or proponent following a gateway determination, but before community consultation on the planning proposal has commenced (informed by advice from the PAC). The process for these reviews, which are administrative and have no legislative basis, is outlined in Planning Circular PS 12-006 (29 October 2012) and the Department's 'Guide to preparing local environmental plans' (the Guide). Local councils are required to notify a person who has requested the preparation of a planning proposal if it does not support the request 'as soon as practicable' that the proposal is not supported (EPAR cl lOA); the Guide states that the proponent then has 40 days to request the relevant JRPP to review the proposal. A proponent can request a review if the council has not made a determination within 90 days. The Department undertakes an assessment to determine if the proposal has strategic merit or site-specific merit, and prepare a report; the Secretary then decides if the proposal qualifies for review. For gateway reviews, a council or proponent may request the Minister (or delegate) to alter a gateway

determination when a determination is made that the planning proposal should not proceed, the planning proposal should be resubmitted to the gateway, or it imposes requirements other than consultation requirements or makes variations to the proposal that the council or proponent thinks should be reconsidered. The initial fee payable for a pre-gateway review is $5,000; the fee for further assessment which is undertaken by a JRPP or the PAC is $15,000 (EPAR cl 263(4), (5)). The Minister (or delegate) makes the final decision with respect to the proposed instrument. The Minister may request a council to submit a planning proposal to gateway determination within 40 days, consult with the relevant council to determine if the Secretary or some other body should be the relevant planning authority, or decide to, or not to, proceed with the matter notwithstanding any advice from the JRPP or the PAC. Compliance with plan-making requirements

The former provisions for the making of an LEP in Pt 3 Div 4 were significantly more detailed than those now in force since 1 July 2009. A council could decide to prepare an LEP and notify the Department (formers 54(4)), or the Minister could direct the council to do so (formers 55(1)). The council would consult with relevant public authorities and prepare a draft LEP, which would be submitted to the Department for a certificate under former s 65 to enable the draft to be publicly exhibited. The courts insisted on compliance with the procedural requirements set out for public notification and exhibition, in particular requiring that public notice be accurate and complete. 37 The council could make amendments to the draft LEP either in response to submissions or any public hearing held, before submitting the draft LEP to the Department (former s 68). The Minister could make amendments, and the final decision to approve the LEP was made by the Minister following a report by the Secretary. The power to make amendments to a draft LEP was constrained by the requirement that those amendments did not achieve a difference of such significance that the final LEP could not be said to be an outcome of the plan-making process in Pt 3 of the EPAA. 38 The current provisions are different in several respects, summarised by Pain J in Save Little Manly Beach Foreshore Inc v Minister for Planning (No 3):39 • no draft instrument is exhibited to the public consultation process if one is required; rather an explanation and justification for a proposed instrument are prepared in a planning proposal in accordance with s 55; • the detailed mandatory provisions for public notification and exhibition in the formers 66 are not repeated; in a gateway determination the Minister can determine a matter is to proceed and the nature of the community consultation requirements; • under s 58 a proposal may be varied by a planning authority at any time after consideration of a submission or report during the community consultation or for any other reason; the alteration power is marginally wider than that under the former Div 4; • under the current s 59(2) the Minister can make an LEP in the terms he or she considers appropriate following community consultation, which is a wide power to vary; 37 38

36

Failure to sub-delegate lawfully may mean that an LEP is not lawfully made and is invalid: De Angelis v Pepping [2015] NSWCA 236.

77

39

Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council (1991) 73 LGRA 317; El Cheikh v Hurstville City Council [2006] NSWCA 173. Leichhardt Council v Minister for Planning (No 2) (1995) 87 LG ERA 78; Friends of Turramurra Inc v Minister for Planning [2011] NSWLEC 128. [2015] NSWLEC 77 at [65]-[70].

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• drafting of an LEP occurs to give effect to the final proposals of the planning authority at the end of the Div 4 process, not towards the beginning as previously. Notwithstanding those differences, Pain J held that the greater flexibility does not undermine the importance of community consultation in the statutory scheme and, where consultation is required by the gateway determination, it is mandatory. Pain J concluded that there was no basis for distinguishing the earlier authorities and that effective community consultation is a fundamental precondition to the exercise of the powers to make an LEP; so that the power to vary the exhibited planning proposal under s 58 is necessarily constrained by the requirement that the resulting plan be a product of the Div 4 process as reflected in the accuracy of the planning proposal's discussion of the proposed instrument. 40 In De Angelis v Pepping41 the Court of Appeal considered the issue of compliance with community consultation requirements, noting that the drafting of s 56(8) had been careful not to make the validity of an instrument dependent on strict compliance with requirements imposed by reference to relatively informal Department documents rather than statute or subordinate legislative instruments, and that a failure to comply fully with community consultation requirements would not necessarily have any material effect on the opportunity for interested persons to make submissions on a planning proposal. The court concluded that s 56(8) attempts to ensure that there is a genuine opportunity for interested persons to make submissions on a planning proposal, but without employing the blunt mechanism of invalidity for every breach of community consultation requirements no matter how inconsequential the breach.

Planning administrator The Minister may appoint a planning administrator, a planning assessment panel or a regional panel to exercise functions of a council if the council has failed to comply with or carry out any of its obligations under the planning legislation, or the Minister is of the opinion that the council's performance in dealing with planning and development matters is unsatisfactory because of the manner in which the council has dealt with those matters or the time taken, if the council agrees or if the Independent Commission Against Corruption (ICAC) recommends this (s 118(1)). Section 118(12) defines failure to comply with obligations under the planning legislation to include a failure to comply with or carry out the provisions of the EPAA, an EPI, certain directions made under the EPAA, a failure to comply with the requirements of a staged repeal program under s 33B of the EPAA, or a failure to provide access to and the use of staff and facilities to the PAC or a JRPP. A planning administrator may be appointed to exercise all or any particular function or class of functions of the council under the EPAA. The role of a planning assessment panel or regional panel is more limited: they may be appointed to exercise only functions as a consent authority under Pt 4, or in relation to the making of EPis under Pt 3 or under Div 1 of Pt 2 of Chapter 6 of the Local Government Act 1993 (s 118(2), (3)); and may not exercise the functions of a council for more than five years (s 118(4)). 40

41

On the facts of this case, the amendments to the proposed instrument the subject of the exhibited planning proposal were not so significant that the impugned LEP differed in important respects from the exhibited planning proposal, and the amendments were within the scope of the council's power under s 58 to vary the proposal and the Minister's power under s 59(2)(a) to make the LEP. Sheahan J applied Pain J's reasoning in Rynn v Minister for Planning [2015] NSWLEC 88, but reached a different conclusion on the facts of that case and declared the impugned LEP invalid. [2015] NSWCA 236.

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Section 118 contains some consultation and notification requirements. Before appointing a planning administrator or planning assessment panel, or conferring functions on a regional panel, the Minister must notify the council concerned in writing of the proposed action (including the reasons for the proposed action) and request the council to show cause why the action should not be taken. The Minister must consider any written submissions made by the council within 21 days of notice being given and must not take action earlier than 21 days after the notice is given (s 118(7B), (7C)). Before appointing a planning administrator or a planning assessment panel, or conferring functions on a regional panel, the Minister is to obtain the concurrence of the Minister for Local Government (s 118(8)). If the basis for the action is that the Minister is of the opinion that the performance of a council in dealing with planning and development matters is unsatisfactory, the Minister must first publish in the Gazette heads of consideration for the exercise of power and take any of those heads of consideration that are relevant into account (s 118(9)).42 No notice or inquiry is required if the basis for the decision is a report by ICAC; however, the Minister must inquire into the matter as soon as practicable with a view to confirming or revoking the appointment (s 118(10)). The Minister must make reasons for the appointment of a planning administrator, a planning assessment panel or conferral of functions on a JRPP publicly available as soon reasonably practicable (s 118(11)). These notification and consultation provisions, which were amended following the decision in Ku-ring-gai Council v Minister for Planning,43 may override any obligation the Minister might previously have had to provide a council with the opportunity to present a case before the appointment is made: Balmain Association Inc v Planning Administrator for Leichhardt Council. 44 In any event, the functions of the Minister (or a delegate) relating to the appointment of a planning administrator or planning assessment panel, or the conferral of functions on a JRPP, are now protected from judicial challenge under s 118AG. The exercise of any such function (referred to as a 'protected function') cannot be challenged in any legal proceedings, including on the basis of procedural non-compliance or breach of natural justice (s 118AG(2), (3)).

Environmental and other studies As originally enacted, the EPAA required the preparation of an environmental study before preparation of an REP or LEP. The Pt 3 plan-making provisions in force before the 2008 Amendment Act commenced required that an environmental study be prepared if a proposed REP or LEP was the first such instrument applying to the relevant land, or if the Minister (in the case of a proposed REP) or the Director-General (in the case of a proposed LEP) so directed (former s 74). A local environmental study was required where a council proposed provisions in its LEP which were inconsistent with as 117 direction (for example, affecting existing industrial zonings, or zonings on flood-prone land). An environmental study required by the former s 57 had to be an objective, disinterested study of the land and, while it could examine a specific rezoning application, 42

43 44

The Environmental Planning and Assessment (Unsatisfactory Council Performance) Order 2007, in effect from 1 August 2007, sets out the applicable heads of consideration: Planning Circular PS 07-010, . [2008] NSWLEC 174. (1991) 25 NSWLR 615.

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it was not restricted to the merits of a particular rezoning application. 45 If the draft LEP was proposed to rezone particular land, the council could recover the cost of an environmental study from the person who made the request for the rezoning amendment (former EPAA s 57; EPAR cl 15). Under the current Pt 3 plan-making provisions, the Minister may, as part of the gateway determination, require the provision of further studies or information (s 56(2)(b)) as part of the assessment of a planning proposal. The Minister can direct a council to provide studies or other information in its possession relating to a proposal instrument to the planning authority (s 54(4)). A relevant planning authority that is requested by the owner of land to exercise its planning functions may require the owner to carry out studies or provide other information concerning the proposal, or to pay the costs of the authority in accordance with the regulations (s 54(3)).

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'want of consistency or congruity', 'lack of accordance or harmony' or 'incompatibility, contrariety or opposition'; 47 Mahoney JA commented that two planning instruments may be inconsistent 'if the general principles or general provisions provided by each are different' or if 'the later instrument enacts a provision which is a qualification or an exception to a general principle stated in the earlier instrument'. 48 Under amendments made to the EPAA in 1996, a SEPP could prevail over an REP or LEP if it so provided, and an REP could prevail over an LEP if it so provided. Section 36 was amended in 2005 to entrench the hierarchy of planning instruments and to clarify that instruments higher in the hierarchy prevail over instruments made subsequently, an issue that was also discussed by the Court of Appeal in Coffs Harbour Environment Centre Inc v Minister for Planning. Section 36 now provides: (1) In the event of an inconsistency between environmental planning instruments and unless otherwise provided: (a) there is a general presumption that a State environmental planning policy prevails over a local environmental plan or other instrument made before or after that State environmental planning policy, and (b) [Repealed] (c) the general presumptions of the law as to when an Act prevails over another Act apply to when one kind of environmental planning instrument prevails over another environmental planning instrument of the same kind. (4) Nothing in this section prevents an environmental planning instrument from being expressly amended by a later environmental planning instrument, of the same or a different kind, to provide for the way in which an inconsistency between them is to be resolved.

Strategic plans Part 3B of the EPAA is introduced by the Greater Sydney Commission Act 2015, with effect from 27 January 2016, and provides for the making of strategic plans, which are a district plan or a regional plan. The Minister may declare any area of the State (other than the Greater Sydney Region) to be a region for the purposes of Pt 3B, and any part of the Greater Sydney Region or other region to be a district for the purposes of Pt 3B (EPAA s 75AB). There are six districts for the Greater Sydney Region: Central, West Central, West, North, South West and South. A draft regional or district plan is prepared by the relevant strategic planning authority, which is, for the Greater Sydney Region, the Greater Sydney Commission or, for any other region, the Secretary or other prescribed person. A strategic plan prepared under Pt 3B is not included in the definition of 'environmental planning instrument' ins 4 of the EPAA. The relevant strategic planning authority preparing a draft district plan is to give effect to any regional plan applying to the region in respect of which the district is a part (EPAA s 75AI(l)). The relevant planning authority is required, when preparing a planning proposal under s 55, to give effect to any district plan applying to the local government area to which the planning proposal relates or, if there is no district plan, to any regional plan applying to the region in respect of which the local government area is part (EPAA s 75AI(2)).

Environmental Planning Instruments Relationship between EPls Section 36 of the EPAA addresses the relationship between environmental planning instruments. As initially enacted, there was no general presumption that an EPI of one type prevailed over an EPI of another type, and the provisions of a later instrument prevailed over the provisions of an earlier instrument unless the contrary intention appeared. In Coffs Harbour Environment Centre Inc v Minister for Planning and Coffs Harbour City Council, 46 Kirby P noted that there would be inconsistency if there is 45

Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420; Devon v New World Properties (NSW) (unreported, NSWLEC, McClelland J, 1984); Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) (2011] NSWLEC 83.

46

(1994) 84 LGERA 324.

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In Sweetwater Action Group Inc v Minister for Planning Biscoe J noted that s 36 codifies the common law.49 Biscoe J had earlier considered the general principles of statutory interpretation relating to reconciliation of potentially competing provisions within different statutes in Parks and Playgrounds Movement Inc v Newcastle City Council 50 and Oshlack v Rous Water. 51 Sweetwater required consideration of two SEPPs, each expressed to override any other SEPP, and held that the provisions of SEPP 55 - Remediation of Land and SEPP (Major Development) 2005 were intended to give effect to harmonious goals and that there was no relevant inconsistency between them, so that they could both be obeyed. 52 On appeal, the Court of Appeal held that, because the power conferred on the Governor under s 37(1) of the EPAA to make a later SEPP was conditional only on the advice of the Executive Council and the requirement that the SEPP be 'for the purpose of environmental planning by the State', even if there had been a failure to comply with the requirements of cl 6 of SEPP 55 that would not invalidate the amendment to the Major Development SEPP. 53

47 48 49 50 51 52 53

Ibid at 331. Ibid at 345. (2011] NSWLEC 106 at [71]. (2010) 179 LGERA 346. [2011] NSWLEC 73. [2011] NSWLEC 106 at (78].

Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc (2011] NSWCA 378.

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Content of EPls An EPI may make provision for any of the following: • • • • • •

protecting, improving or utilising, the environment; controlling development; reserving land for use for various public purposes; providing, maintaining and retaining affordable housing; protecting or preserving trees or vegetation; protecting and conserving native animals and plants, including threatened species, populations and ecological communities, and their habitats; • controlling advertising; • protecting and conserving vulnerable ecological communities. (s 26) Legislation may also authorise the inclusion of other matters in an EPI. An EPI may provide that, for the purpose of enabling development to be carried out in accordance with an EPI or in accordance with a development consent, a specified 'regulatory instrument' shall not apply to development or shall apply subject to specified modifications (s 28(2)). A 'regulatory instrument' is 'any Act [other than the EPAA], rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made'. Such a provision has effect only if the Governor has, before the making of the EPI, approved of the provision (s 28(3)). Compliance with that requirement is a mandatory procedure. 54

Standard instruments Section 33A (inserted in the EPAA with effect from 30 September 2005) allows the Governor to prescribe the standard form and content of LEPs and other EPis. An EPI may then declare that the applicable mandatory provisions of a standard instrument are adopted, or set out the mandatory provisions, and any of the non-mandatory provisions, that are to apply (s 33A(2)). If the standard instrument is subsequently amended, the EPI is automatically amended to include any changes to the standard instrument (s 33A(4)). A new EPI adopting the provisions of the standard instrument for the purpose of replacing previously applicable instruments may be made without complying with the otherwise applicable procedural requirements of Pt 3 of the EPAA, if the Minister is of the opinion that the replacement instrument does not make any substantial changes to the general effect of the existing instrument or instruments (s 33A(8A)). A standard instrument for preparing LEPs was gazetted on 30 March 2006 - the Standard Instrument (Local Environmental Plans) Order 2006. The Order has since been amended, and at the time of writing sets out 35 standard zones, grouped in eight categories: rural, residential, business, industrial, special purpose, recreation, environment protection and waterways. The Standard Instrument sets out a Dictionary of standard definitions relating to land uses, and those definitions are mandatory. The land use terms are grouped into general categories (including advertising, building and works, home activities, industry, primary industry, residential accommodation, retail and business). Other terms are defined, including administrative terms, heritage terms and terms used in maps. Terms which are not defined in the Standard Instrument continue to be defined using the ordinary meaning of the word. 54

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Cumerlong Holdings Phj Ltd v Dalcross Properties Pty Ltd (2011) 243 CLR 492.

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The intention behind the introduction of the LEP Standard Instrument was to achieve consistency and efficiency. In his Second Reading speech, the then Minister for Planning and Infrastructure commented that the standard LEP would reduce the existing zoning categories from 3100 to around 25, and the 1700 existing definitions to fewer than 300. 55 From February 2016, all local government areas now have a standard instrument LEP. With the introduction of the Standard Instrument for LEPs, the Environmental Planning and Assessment Model Provisions and s 71 directions were repealed. The Model Provisions contained definitions and general provisions relating to such matters as foreshore building lines, tree preservation and certain types of development such as motor showrooms. Councils were previously free to adopt any or all of the Model Provisions in their LEPs. Despite the repeal, the Model Provisions continue in force for those LEPs which adopted them (Sch 6 cl 93). The directions under s 71 related to the format, structure and content of LEPs, and are replaced by the Standard Instrument provisions.

Special provisions for LEPs Section 117 of the EPAA enables the Minister to direct any public authority or person having functions under the EPAA or an EPI to exercise those functions at or within such times as are specified in the direction (s 117). There are two sets of s 117 directions: local planning directions issued on or after 1 July 2009 for planning proposals lodged after that date, and a consolidated list of local planning directions issued before 30 June 2009 which apply to a draft LEP received from a council before 1 July 2009. 56 Some directions apply to all councils when preparing a draft LEP, while others apply only to specified councils. Under some of these directions, councils cannot include provisions in an LEP that require concurrence or consultation of a Minister or public authority, alter provisions relating to business or industrial zones, or identify development as designated development, without the approval of the Director-General. The s 117 directions apply to councils, and to persons or bodies other than councils exercising planning functions (s 117(2B)).

Development control plans A development control plan (DCP) can be prepared by the relevant planning authority, which is the council of the area to which the matter relates or the Secretary. However, the council is not the relevant planning authority for a SEPP, and the Secretary is not the relevant planning authority for an LEP for which a council is the relevant planning authority (s 74B). The principal purpose of a DCP is to provide guidance to persons proposing to carry out development and to the consent authority for such development on giving effect to the aims of any applicable EPI; facilitating development that is permissible; and achieving the objectives of land zones under an EPI. The provisions of a DCP made for that purpose are not statutory requirements (s 74BA). The other purpose of a DCP is to make provision for advertised development, or for publication or advertising of specified development, or to specify criteria to be taken into account by a council in making an order under Pt 6 of the EPAA (s 74C(l)). Only one DCP made by the same relevant planning authority may apply in respect of the same land (s 74C(2)). 55 56

Hansard, NSW Legislative Assembly, 27 May 2005. See .

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Unless directed otherwise by the Minister, a council can choose to make one DCP for its entire area, or localities within its area, or to have a site-specific DCP. If the latter option is adopted, the council would have to exclude the application of other DCPs. The consequence of non-compliance with the limitation of one DCP to each site is that all DCPs applying to that site have no effect (s 74C(2)). A provision of a DCP will be of no effect to the extent that it is the same or substantially the same as a provision of an EPI applying to the same land, or is inconsistent or incompatible with a provision of such an EPI (EPAA s 74C(5)). This provision was amended in 2012 and formerly referred to provisions the application of which 'prevents compliance with a provision of any such instrument', rather than incompatibility. An example of inconsistency is provided by Guideline Drafting and Design v Marrickville Municipal Council, 57 invalidating a provision of a DCP that restricted the location of refreshment rooms to ground floors of buildings on the basis that it was inconsistent with the relevant planning instrument under which refreshment rooms were a permissible use. However, some restrictions imposed by a DCP may be able to stand consistently with the provisions of an EPI. In North Sydney Council v Ligon 302 Pty Ltd (No 2), 58 the Court of Appeal held that a provision in a DCP that was restrictive or prohibitive unless certain conditions were met would not necessarily be contrary to the relevant planning instrument. Part 3 of the EPAR sets out the procedures for preparation of DCPs by councils and those provisions also apply to the preparation of DCPs by the Secretary (cl 24). A draft DCP must be publicly exhibited for at least 28 days, and any person may make submissions (ell 18, 20). A council can approve the DCP, with amendments, or decide not to proceed, and must give notice of its decision in a local newspaper within 28 days (cl 21). A DCP can be amended by a subsequent DCP, and can be repealed by a subsequent DCP or by public notice in a newspaper (cl 22). An EPI may require a DCP to be prepared for a site before development can be carried out (EPAA s 74D). These DCPs are prepared by the owner of the land and submitted to the relevant planning authority (s 74D(3)). If the planning authority refuses to make the DCP, or delays for more than 60 days, the owner of the land may make a development application despite the absence of the DCP (s 74D(5)). The.. planning authority may require further information before deciding whether to make the DCP (EPAR cl 25). If a draft development control plan under s 74D is prepared (and submitted to the relevant planning authority) by the owners of the land to which it applies, the owners must pay the relevant planning authority an assessment fee as determined by the planning authority; that fee cannot exceed the reasonable cost, to the relevant planning authority, of assessing or preparing the draft development control plan, carrying out any associated studies and publicly exhibiting the draft plan (EPAR cl 25AA).

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and councils can prepare additional local objectives, provided they are not inconsistent with the core objectives and compulsory land uses. Older planning instruments specify zoning provisions in the form of a table. More recent planning instruments list for each zone provisions which reflect the threefold classification of development in ss 76, 76A and 76B of the EPAA, namely: development that is permissible without development consent; development that requires development consent; and development that is prohibited. The planning instrument will be accompanied by a map which identifies the relevant zones. The land use table in the Standard Instrument Principal Local Environmental Plan specifies for each zone the objectives of the zone, and sets out the threefold classification of development permitted without consent, permitted with consent, and prohibited. For each zone there is a direction that certain development must be included as either 'permitted without consent' or 'permitted with consent'. For example, under Zone RU4 Primary Production Small Lots, extensive agriculture, farm buildings, intensive plant agriculture, roads and roadside stalls must be included as either 'permitted without consent' or 'permitted with consent'. The Standard Instrument contains other mandatory provisions, for example, for Zone R3 Medium Density Residential, attached dwellings, boarding houses, child care centres, community facilities, group homes, multi-dwelling housing, neighbourhood shops, places of public worship, respite day care centres and seniors housing are permitted with consent. Councils can supplement the mandated permitted and prohibited land uses for each zone. The Department's LEP Practice Note PN 11-002 provides commentary on the standard zones and objectives.

Existing uses

One of the central provisions in an LEP is to establish zones for areas of land, and to specify for each zone development that is permissible without needing consent, or development that requires consent, and development that is prohibited. Under the Standard Instrument (LEP), there are 35 standard zones for councils to use when preparing LEPs. Each standard zone has one or more objectives for development in the zone,

Planners do not start the planning process with a clean slate and they must accommodate the range of uses that will already be in place at the time a new EPI is made. If occupiers are required to discontinue uses which do not conform to the new planning instrument, there would be significant pressure for compensation. The alternative, to prepare a planning instrument that simply reflects the status quo, would largely destroy any benefits to be gained by planning. 59 The EPAA continues the approach of planning schemes under Pt XIIA of the Local Government Act 1919, in allowing existing uses to continue 'as a transitional derogation designed, for a time only, to cushion the impact of new general planning laws upon private owners with established use of their land which has continued without abandonrnent'. 60 Existing use rights arise when an EPI comes into force which has the effect of changing the status of a particular development or use. An EPI may specify that the particular use is now prohibited or that it requires consent where consent was not previously required. Section 106 of the EPAA defines 'existing use' to mean (a) the use of a building, work or land for a lawful purpose immediately before the corning into force of an EPI which would have the effect of prohibiting that use, and (b) development for which consent was granted before the commencement of a provision of an EPI which would prohibit the use, and which has been carried out within one year after the date of commencement of that EPI to the extent so as to ensure that the consent would not lapse. The reference to 'lawful purpose' in s 106 is a reference to planning considerations and not the general law, so that only those uses commenced with consent (if consent

57 58

59 60

Zoning

(1988) 64 LGRA 275. (1996) 93 LGERA 23.

M Wilcox, The Law of Land Development in New South Wales (Law Book Co, 1967) at 260. North Sydney Municipal Council v Boy ts Radio and Electrical Pty Ltd (1989) 16 NSWLR 50 at 51 per Kirby P.

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was previously required), or permissible without requiring consent, are included in s 106: Sydney City Council v Ke Su Investments Pty Ltd (No 2); 61 Steedman v Baulkham Hills Shire Council. 62 Section 107(1) allows an existing use to continue. Existing use rights attach to the premises and not to the owner or occupier of those premises. Existing use rights are lost if the use is abandoned (s 107(2)(e)), and there is a presumption that a use is abandoned if the use ceases for a continuous period of 12 months (s 107(3)). Abandonment is a question of fact. An existing use can be continued even if there have been interruptions or breaks, so long as those interruptions are not of such a kind as to constitute a termination or abandonment of that use. Both objective and subjective factors are relevant, including the intention of the person relying on existing use rights. For example, if premises are vacant because of renovation work or if the owner is having difficulty finding a tenant, such a break may not necessarily be evidence of abandonment: Woollahra Municipal Council v Banool Developments Pty Ltd; 63 Woollahra Municipal Council v TAJJ Investments Pty Ltd. 64 It may be necessary to determine whether an existing use has continued at each of the relevant dates for commencement if there has been more than one EPI during the relevant period: Steedman v Baulkham Hills Shire Council (No 2). 65 Part 5 of the EPAR contains provisions which regulate existing uses. Under cl 41, an existing use can be enlarged, expanded or intensified, altered or extended, rebuilt or changed to another use. An amendment made to the EPAR in 2006 qualifies this, by specifying that the other use must be a use that may be carried out with or without development consent. Before this, the EPAR permitted change of an existing use to another use which would itself be prohibited. For commercial and light industrial uses in premises with a floor space of less than 1000 square metres, an existing use can be changed to another commercial or light industrial use, including a commercial or light industrial use that would otherwise be prohibited, but only if it involves minor alterations or additions, does not involve an increase of more than 10% of the floor space, or the rebuilding of the premises, or a significant intensification of the existing use (EPAR cl 41(1)(e), (f), (2), (3)). 66 Development consent is required for any of these changes (EPAR cll 42, 43, 44, 45), which may require consideration of provisions in the applicable planning controls. 67 The EPAA also covers the situation where an EPI comes into effect requiring development consent for a use where consent was not previously required. While this is not an 'existing use' as defined in s 106, similar provisions apply to these continuing uses. Section 109 allows such a use to be continued until abandoned, and makes similar provision for a presumption of abandonment after 12 months (s 109(3)). Any alteration, extension or rebuilding, enlargement or intensification of the use, or increase in the area of land actually physically and lawfully used, will require development consent (s 109(2)). Division 10 of Pt 4 also provides for continuation of development authorised by an operative development consent, so that, for example, the use of premises authorised by a consent having commenced, the entitlement to use the existing building in accordance 61 62 63 64 65 66 67

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(1983) 51 LGRA 186. (1991) 72 LGRA 265. (1973) 129 CLR 138. (1982) 49 LGRA 123. (1993) 31 NSWLR 562. Determining whether a particular proposed use is a 'commercial' use can be challenging: Sevenex Pty Ltd v Blue Mountains City Council (2011] NSWCA 223. Iris Diversified Property Phj Ltd v Randwick City Council (2010) 173 LGERA 240.

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with that consent continues, even if there are lengthy periods during which the building is vacant or even if there is no apparent intention to resume that use (s 109B(l)). The preservation of the consent bys 109B is not an 'existing use' as defined ins 106, and the continuation of the use it sanctions is not subject to the restrictions created by s 107(2), or amenable to change either in its physical dimension (its expansion or intensification or the extension or rebuilding of a building used for an existing use), or in the nature of the activity itself (a change of use) pursuant to s 108.68 A use protected bys 109B may also be an 'existing use' within the meaning of s 106: Jojeni Investments Pty Ltd v Mosman Municipal Council. 69 Section 109B does not prevent the lapsing, revocation or modification of a consent otherwise in accordance with the EPAA.

Characterisation As noted above, the zoning provisions of EPis will specify uses that are permissible without consent being required, or permissible with development consent, or prohibited. Characterisation of the purpose of a proposed, or existing, use, is required in order to determine its status under the relevant EPI. The applicable EPI may contain a definition. For example, SEPP (Housing for Seniors or People with a Disability) 2004 defines 'dwelling' to mean 'a room or suite of rooms occupied or used, or so constructed or adapted as to be capable of being occupied or used as a separate domicile'. The Standard Instrument - Principal Local Environmental Plan defines 'entertainment facility' to mean 'a theatre, cinema, music hall, concert hall, dance hall and the like, but does not include a pub or registered club'. If a term is not defined in the EPI, its meaning will be how that word is understood in ordinary usage, which is usually found by consulting a dictionary. The definition in the EPI may itself refer to other terms (as is the case with 'entertainment facility' in the Standard Instrument), and those meanings will also need to be determined by reference to definitions elsewhere in the EPI, or on their ordinary meaning. The general approach to characterisation for planning purposes was set out by Kitto Jin Shire of Perth v O'Keefe:7° The application of the by-law in a particular case is therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. Characterisation of the purpose of a use of land is to be undertaken at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, rather than in terms of the detailed activities, transactions or processes, and has to be done in a 'common sense and practical' way: Chamwell Pty Ltd v Strathfield Council. 71 The nature of the use needs to be distinguished from the purpose of the use, and uses of different natures may still serve the same purpose. 72 There are two means by which an EPI and land use table for each zone may identify the purpose of development falling in each of the three classifications, as development 68 69 70 71 72

Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012] NSWLEC 194. (2015] NSWCA 147. (1964) 110 CLR 529 at 535. (2007) 151 LGERA 400. Shire of Perth v O'Keefe (1964) 110 CLR 529; Warringah Shire Council v Raffles (1978) 38 LGRA 306.

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that may be carried out without consent, development that may be carried out with consent or development that is prohibited. A nominate purpose is one which the environmental planning instrument expressly nominates by name as being within one of the three classifications; and an innominate purpose is one which the EPI does not nominate by name as being within one of the three classifications, but rather identifies as falling within a particular classification by reason of it not being nominated in other classifications. For example, the land use table for a zone may classify as prohibited development, development for a purpose other than a purpose nominated as being able to be carried out without consent or with consent: Botany Bay City Council v Pet Carriers International Pty Ltd.73 In characterising a use which has more than one purpose, if one purpose is dominant, any subordinate use can be disregarded in deciding the status of the development: Warringah Shire Council v Raffles.74 If, however, there is no dominant purpose, but two or more independent purposes, the status of each must be considered: Foodbarn Pty Ltd v Solicitor General. 75 A use which can be said to be ancillary to another use is not automatically precluded from being an independent use - it is a question of fact and degree: Baulkham Hills Shire Council v O'Donnell.76 Planning instruments may define development purposes in ways that overlap: Hawkesbury City Council v Sammut. 77 Where there are overlapping purposes, and where all uses of a development proposal are controlled by provisions of the applicable planning instrument, it is not necessary to find a predominant use. If any one purpose is independent and does not serve the other, or is not incidental to the other, and the other purpose is prohibited, the development is not permissible: Abret Pty Ltd v Wingecarribee Shire Council.78 Characterisation of development in the context of existing use rights raises additional issues, as a broad definition or characterisation of the existing use will enable its continuation, favouring private over social rights: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd. 79 The approach is usually to define the purpose of the use, rather than to descend to the detail of the particular activities carried on: Royal Agricultural Society of New South Wales v Sydney City Council. 80 Determining the appropriate genus requires attention to the town planning purpose for which the determination is being made. In contrast to consideration where the issue is whether development can be characterised as being for a purpose that the EPI identifies as being permissible with consent and not for a purpose identified as permissible without consent or prohibited (where the focus of the inquiry is whether the development is within a nominate or innominate purpose, the terms of which are specified in the instrument), when determining whether a development is an existing use it may be necessary to determine, at large, the category of purpose into which the development should be seen as falling and to formulate a description of that category: Botany Bay City Council v Pet Carriers International Pty Limited. 81 All uses of the land at the relevant time, which will 73 74 75 76 77 78 79 80 81

[2013] NSWLEC 147 at [29]-(30]. (1978) 38 LGRA 306. (1975) 32 LGRA 157. (1990) 69 LGRA 404. (2002) 119 LGERA 171. (2011] NSWCA 107. (1989) 16 NSWLR 50. (1987) 61 LGRA 305. [2013] NSWLEC 147.

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generally be the date of the coming into effect of a planning instrument that required development consent or prohibited the claimed existing use, must be considered. So long as it is real, a minor use cannot be ignored, even if it is overshadowed by other uses of the land: Steedman v Baulkham Hills Shire Council (No 2). 82 Where an existing use arises by operation of s 106(b), the terms of the relevant development consent, unless silent as to use and purpose, determine the extent of the existing use rights: Botany Bay City Council v Workmate Abrasives Pty Ltd. 83 Characterisation of proposed development may arise not only in deciding whether the development is permissible or prohibited, but in determining whether additional procedural requirements apply, for example, as designated development. Here, too, the attempt to characterise uses as 'dominant' or 'ancillary' may be misleading. As discussed at p 95, designated development is development declared to be so in an EPI or the EPAR. Part 1 of Sch 3 to the EPAR lists a number of categories as designated development. In some instances a large project may include a number of different activities, for example, a large-scale residential development that includes a sewerage treatment plant. Previously, the courts considered that, if a particular part of an overall development was designated development because it falls within one of those categories (such as a sewerage treatment plant), it did not matter whether it was subsidiary or ancillary to some other form of development to which the application relates or whether it constituted an independent use of the land. The courts considered whether the application was 'in respect of' designated development, so that the additional environmental assessment requirements would apply: Penrith City Council v Waste Management Authority;84 Residents Against Improper Development Inc v Chase Property Investments Pty Ltd. 85 Clause 37A of Sch 3 to the EPAR now excludes from the definition of designated development, development that is ancillary to other development and that is not proposed to be carried out independently of that other development. While the characterisation of a use is a question of fact, it is a jurisdictional fact. The determination of the consent authority as to how a particular development is to be characterised is a matter which can be reviewed by the Land and Environment Court. The court will be able to have regard to additional evidence that was not before the consent authority and will make its own determination of the appropriate characterisation, rather than assessing the reasonableness of the consent authority's determination: Woolworths Ltd v Pallas Newco Pty Ltd. 86

Challenges to EPls The LEC has jurisdiction to hear and determine challenges to the validity of an EPI, in class 4 of its jurisdiction (Land and Environment Court Act 1979 s 20). The LEC has generally insisted on compliance with procedural requirements, declaring invalid the resulting LEP where there has been a procedural defect: Canterbury District Residents and Ratepayers Association Inc v Canterbury Municipal Council; 87 Smith v Wyong Shire 82 83

84 85 86 87

(1993) 31 NSWLR 562. (2004) 138 LGERA 120. Doubt has been cast on the authority of the reasoning in Workmate Abrasives by the Court of Appeal in Jojeni Investments Phj Ltd v Mosman Municipal Council [2015] NSWCA 147 at [72]-[73]. (1990) 71 LGRA 376. [2006] NSWCA 323. (2004] NSWCA 422. (1991) 73 LGRA 317.

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Council; 88 Capital Airport Group Pty Ltd v Director-General of the Department of Planning. 89 Challenges can be made on other grounds, for example, failure to have regard to all relevant material: Gales Holdings Pty Ltd v Minister for Infrastructure and Planning.90 The validity of DCPs and other instruments, such as s 117 directions, can also be challenged, on the basis of failure to comply with procedural requirements or consistency with the requirements of the EPAA. 91 Section 35 of the EPAA provides that challenges to the validity of an EPI must be brought within three months of the date of publication on the NSW Legislation website: see pp 52-53. A challenge to the validity of a strategic plan made under Pt 3B of the EPAA must also be brought within three months (s 75AK).

88 89 90 91

(2003) 132 LGERA 148. (2010) 171 LGERA 440. (2006] NSWCA 388. W es tfield Developments Pty Ltd v Sutherland Shire Council (1987) 28 APA 376; Lainson v Sutherland Shire Council (1998) 108 LGERA 1.

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DEVELOPMENT CONTROL

The Environmental Planning and Assessment Act 1979 (NSW) (EPAA) makes provision for assessment and approval of various types of development and other activities on land. The starting point is to determine whether a proposed activity or project is 'development' as defined in the EPAA; if it is, approval may be required under Pt 4 of the EPAA, either through a process of assessment by a consent authority, or through a process of certification. Development can take many forms, including the use of land and physical activity on land for a particular purpose such as the erection of a building. As originally enacted, the EPAA drew a distinction between development which requires development consent, and activities which do not require development consent but which require approval under other legislation, for example, mining or forestry, or which are to be carried out by a government agency. Assessment of the environmental impacts of development which required development consent was to be carried out under Pt 4 of the Act. Part 5 of the Act provided the process for assessment of environmental impacts of activities that did not require development consent under Pt 4. The environmental assessment of various types of activities has become more complex. Part 4 of the EPAA now sets out the processes for assessment of most forms of proposed development on land, including the erection of buildings, subdivision, and the use of land for a particular purpose. Additional requirements are specified in Pt 4 for development identified in advance as likely to have a significant environmental impact, which is characterised as designated development, and development which is likely to have an impact on threatened species or habitat. Proposals for such development may require the preparation and consideration of an environmental impact statement (EIS) or species impact statement (SIS). Assessment of applications for State significant development, formerly undertaken under Pt 3A of the EPAA, is now provided for in Pt 4 Div 4.1 of the EPAA. Other types of development may not require a formal consideration and may be approved by the issue of a certificate, for example, a complying development certificate. This chapter outlines the processes of application for development consent, and consideration and determination of those applications, under Pt 4 of the EPAA, including for State significant development under Pt 4 Div 4.1. This chapter also outlines the process for assessment and approval of State significant infrastructure under Pt 5.1. The additional requirements for assessment of the environmental impact of designated development, and development on land that is critical habitat or is likely to have a significant effect on threatened species, populations or ecological communities or their habitats, are discussed in Chapter 5.

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Development consent under Part 4 Requirement for development consent Sections 76, 76A and 76B of the EPAA set out the threefold classification that is central to the operation of Pts 4 and 5 of the EPAA. If an environmental planning instrument (EPI) provides that specified development may be carried out without the need for development consent, a person may carry that development out in accordance with the EPI (s 76(1)). The applicable EPI may impose some requirements (for example, notification requirements) and environmental assessment of the development may be required under Pt 5 of the EPAA (see Chapter 5). An EPI may identify development of a specified class or description that is of minimal environmental impact as 'exempt' development (s 76(2)). Exempt development can be carried out without development consent, unless it is proposed for land that is critical habitat or is (or is part of) a wilderness area. Exempt development does not require environmental assessment under Pt 5 of the EPAA (s 76(3)). Other activities which do not require development consent, but which are carried out by government agencies or which require approval under other legislation, will need to be assessed under Pt 5 of the EPAA. If the applicable EPI provides that specified development can only be carried out with development consent, consent must be obtained and the development must be carried out in accordance with that consent (s 76A(l)). Consent can be obtained by a consent authority making a determination to grant development consent (s 76A(2)(a)). The EPI may specify that development that can be addressed by predetermined development standards is 'complying' development (s 76A(5)). Approval of complying development can be obtained by the issue of a complying development certificate (s 76A(2)(b)). The applicable EPI may state that specified development is prohibited on certain land, or that development cannot be carried out on land, with or without development consent. If it does, a person must not carry out the development (s 76B). Environmental planning instruments, particularly local environmental plans (LEPs), reflect this threefold classification by specifying for each of the zones development that is permissible without consent, development that requires consent and development that is prohibited. One of these categories may be a residual category; for example, the EPI may specify particular types of development as permissible without consent, and others as permissible with development consent, and state that all development other than the types specifically identified is prohibited. An important exception to the prohibition in s 76B to carrying out development, where the applicable EPI states that it is prohibited, is in the right to continue an existing use and, with consent, to modify, expand or alter the use. A further exception to the requirement in s 76A to obtain development consent is provided for in s 109, which permits continuation of a use without consent where an EPI comes into effect that requires that consent be obtained. Existing use rights and the right to continue lawful uses are discussed in Chapter 3 at p 85.

Consent authority If development consent is required, it must be obtained from the relevant 'consent authority'. Section 4 of the EPAA defines 'consent authority' to be the local council or, if

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the Act, the regulations or the applicable EPI so specify, a Minister, the Greater Sydney Commission, the Planning Assessment Commission, a joint regional planning panel or public authority (other than a council) or other public authority.1 Local environmental plans will specify the council as consent authority. The Minister for Planning and Infrastructure (hereafter, the Minister) is the consent authority for State significant development (s 89D). State significant infrastructure, although not requiring development consent, requires the Minister's approval (s 115W).

Definition of 'development' The term 'development' is central to the operation of Pt 4 of the EPAA. It is defined in s4 to mean: • • • • • •

the use of land; subdivision of land; erection of a building; carrying out of a work; demolition of a building or work;2 or any other act, matter or thing referred to in s 26 that is controlled by an EPI.

As discussed in Chapter 3, s 26 sets out the matters that may be included in an EPI. For example, an EPI may make provision to control advertising (s 26(1)(g)), in which case advertising will be 'development' for the purposes of Pt 4.

Use The 'use' of land will generally be for a particular purpose, and it is the purpose of that use that will be relevant in deciding whether the use is permissible or not. A 'use' need not be a continuing activity and can include a one-off event such as a rock concert, 3 a weekend music and arts festival,4 or a dance party. 5 As discussed in Chapter 3, the process of characterisation of a current or proposed use can be difficult. The consent authority must form a view as to the appropriate characterisation, in order to decide whether it has the power to grant consent or not. However, its conclusion on that issue is subject to review by the Land and Environment Court (LEC). The characterisation of a use is a jurisdictional fact, which means that the court has the power to decide for itself, on the evidence available to it at the time it is deciding the issue, how to characterise the use. 6

Subdivision 'Subdivision' of land means the division of land into two or more parts that, after the division, are obviously adapted for separate occupation, use or disposition. Subdivision can be carried out by conveyance, transfer or partition, or by any agreement, dealing, plan 1

2 3 4 5 6

The Greater Sydney Commission, constituted under the Greater Sydney Commission Act 2015 (which commenced on 27 January 2016), is also a consent authority. Demolition of a temporary structure is prescribed as not being 'development': Environmental Planning and Assessment Regulation 2000 (EPAR) cl 3A. South Sydney City Council v Paul Dainty Corp Pty Ltd (1992) 75 LGRA 202. Gosford City Council v Popmn Creek Pty Ltd (1995) 89 LGERA 208. Coffs Harbour City Council v Rabbits Eat Lettuce Pty Ltd [2015) NSWLEC 2. Woolworths Ltd v Pallas Newco Pty Ltd [2004) NSWCA 422.

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or instrument, and includes registration of a plan of subdivision under the Conveyancing Act 1919 and a strata plan under the strata legislation (s 4B(l), (2)). However, there are some dealings in land that are not 'subdivision' for the purposes of the definition of 'development'. These include a lease of a building or part of a building; opening of a public road; the acquisition of land (voluntary or compulsory) under legislation; and certain transactions under the Conveyancing Act, for example, the registration of a plan of consolidation (s 4B(3)).

Erection of a building For the purposes of the definition of 'development', a building includes part of a building, and any structure or part of a structure, but does not include a manufactured home, a movable dwelling or associated structure, or a temporary structure within the meaning of the Local Government Act 1993 (s 4). The placing of a structure on land constitutes development; see, for example, Aquatic Airways Pty Ltd v Warringah Shire CounciF where the placement of weights on the bed of Pittwater, and the securing of those weights to a pontoon by means of chains, was held to be the erection of a building.

Carrying out of a work The 'carrying out of a work' includes physical activity on land. In Parramatta City Council v Brickworks Ltd,8 the High Court held that a 'work' is the 'physical product of labouring operations'. Not all physical activity on land will constitute a 'work' - it is a matter of degree. For example, in Kiama Municipal Council v French,9 the placement of soil on agricultural land which raised the soil level by approximately 10 centimetres was held not to be a work. In Kavanagh v Baulkham Hills Shire Council,10 the construction of a BMX track was held to be a 'work', having regard to its size and shape, the height of proposed earthworks, the material and the method of construction.

Types of development The procedure set out in Pt 4 of the EPAA for application for development consent and the determination of applications may vary depending on the type of development. Additional requirements are set out for designated development, advertised development and integrated development. A new regime for determining major projects and infrastructure came into operation on 1 October 2011, replacing the former Pt 3A regime. The new regime restores to some extent the structure of the Act as it existed before the now repealed Pt 3A. The intention is that most large development proposals - referred to as State significant development - are dealt with under Pt 4, while public infrastructure projects - referred to as State significant infrastructure - are dealt with under Pt 5. Despite their place in the Act, there are procedures specific to each type of development. Thus, State significant development and State significant infrastructure are dealt with in a separate section at the end of this chapter, under the heading 'State and regional development'.

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(1990) 71 LGRA 10. (1972) 128 CLR 1 at 24. (1984) 54 LGRA 42. (1983) 48 LGRA 370.

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Designated development Designated development is development that is declared to be designated development by an EPI or by the regulations (s 77A). SEPP 14 - Coastal Wetlands, for example, declares that clearing, draining, filling or construction of a levee on land that is subject to the SEPP is designated development. Designated development does not include State significant development (s 77A(2)). A s 117 Direction states that councils are not to identify development as designated development in an LEP unless the council can satisfy the Director-General that the class of development is likely to have a significant impact on the environment, and the council has obtained the approval of the Director-General.11 Part 1 of Sch 3 to the Environmental Planning and Assessment Regulation 2000 (EPAR) lists a range of development as designated development (cl 4). Developments are listed by type, scale and, in some instances, also by proximity to environmentally sensitive areas such as natural waterbodies or wetlands or drinking water catchments. For example, paper pulp or pulp industries with an intended production capacity of more than 30,000 tonnes a year (or 70,000 tonnes a year if at least 90% of the raw material is recycled and if no bleaching or de-inking is done), or that release effluent or sludge within 100 metres of a natural body or wetland or in an area of high watertable or in a drinking water catchment, are designated development. Alterations or additions to development may not be designated development if in the opinion of the consent authority they do not significantly increase the environmental impacts of the total development (cl 35, Sch 3). In deciding whether an alteration or addition is designated development, the consent authority must consider the impact of the existing development, the likely impact of the proposed alterations or additions, any proposals to mitigate environmental impacts and manage any residual risk, or to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities (cl 36, Sch 3). An applicant for development consent seeking to rely on cl 35 to establish that a development is not designated development must demonstrate the elements of the clause to the relevant decision-maker.12 Development that is listed in Pt 1 of Sch 3 is not designated development if it is ancillary to other development, and it is not proposed to be carried out independently of that other development (cl 37A, Sch 3).

Advertised development Advertised development is development that is not designated development or State significant development, and which is identified as advertised development by the regulations, an EPI or a development control plan (DCP) (s 4). Advertised development includes development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 that is not designated development (s 4). Examples of EPis which specify certain development as advertised development include SEPP 19 - Bushland in Urban Areas, which states that disturbance of bushland zoned or reserved for public open space requires the consent of the council, and that this is advertised development (cl 6(1), (3)). SEPP 33 - Hazardous and Offensive Development provides that development for the purposes of potentially hazardous or potentially offensive industry is advertised development (cl 14). An LEP may identify types of 11 12

Direction 6.1(4)(c) issued on 19 July 2009. Darley Australia Pty Ltd v Walfertan Processors Pty Ltd [2012] NSWCA 48.

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development as 'advertised development', for example, development which comprises the demolition of a heritage item, or the use of a building which is a heritage item.13 The EPAR identifies as advertised development: certain types of integrated development (referred to as 'nominated integrated development'); development on land that is or is part of critical habitat or is likely to affect threatened species, populations or ecological communities or their habitats to a significant extent ('threatened species development'); and development that is, pursuant to SEPP 62 - Sustainable Aquaculture, class 1 aquaculture ('class 1 aquaculture development') (cl 5).

Integrated development Integrated development is development other than complying development or State significant development that requires development consent and one or more of approvals under the following legislation: Fisheries Management Act 1994 (FMA) ss 144, 201, 205, 219; Heritage Act 1977 s 58; Mine Subsidence Compensation A ct 1961 s 15; Mining Act 1992 ss 63, 64; National Parks and Wildlife Act 1974 s 90; Petroleum (Onshore) Act 1991 s 9; Protection of the Environment Operations Act 1997 ss 43(a), 47 and 55 (environment protection licence for scheduled development), ss 43(b), 48 and 55 (environment protection licence for scheduled activity), ss 43(d), 55 and 122 (environment protection licence for non-scheduled activities to regulate water pollution); • Roads Act 1993 s 138; • Rural Fires Act 1997 s 100B; • Water Management Act 2000 ss 89, 90, 91. (EPAA s 91(1)) • • • • • • •

Subsections (lA), (2), (3) and (4) of s 91 limit the provisions of s 91(1); for example, development which requires approval under s 138 of the Roads Act is not integrated development if it requires the development consent of a council and the approval of the same council (s 91(3)). Development that requires approval under the above specified provisions of the Heritage Act, Water Management Act or Protection of the Environment Operations Act is referred to in the EPAR as 'nominated integrated development', and is advertised development (cl 5(1)(b)).

Complying development Complying development is development which requires development consent and which, under an EPI, can be addressed by specified predetermined development standards (EPAA s 76A(5)). SEPP (Exempt and Complying Development Codes) 2008 contains a number of codes identifying various types of complying development and the applicable development standards: see p 71. Complying development can be carried out if a complying development certificate has been issued, and the development is carried out in accordance with that certificate and any applicable provisions of an EPI, DCP or the regulations (s 84A(l)). A 'complying development certificate' is a certificate that states that proposed development is complying development and will comply with 13

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Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78.

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relevant development standards and, if it involves the erection of a building, identifies the relevant classification of the building under the Building Code of Australia (s 85(1)). An application for a complying development certificate can be made to the council, or to an accredited certifier (discussed below at p 118). The regulations may require notification of the issue of a complying development certificate (s 85A(ll)(c)). Clause 130AB of the EPAR requires notification of an application for a complying development certificate for development that involves a new dwelling or an addition to an existing dwelling, certain demolition work, or certain secondary dwellings or group homes, on land (other than land within a residential release area) if the development is to be carried out on a lot that has a boundary within 20 metres of the boundary of another lot on which a dwelling is located. The only matters to be considered are whether the proposed development is complying development; whether it complies with the relevant development standards; and, if the development is complying development because of the provisions of an LEP or of an LEP in relation to which the council has made a OCP specifying standards and conditions for the complying development, whether the proposed development complies with those standards and conditions (s 85A(3)). If the proposed development does comply with any applicable standards and the requirements of the regulations, the council or certifier must issue the complying development certificate, within the period specified in the regulation (s 85A(7), (8); EPAR cl 130AA). That period is 10 days, or 20 days if cl 130AB applies to require notification. The certifier must consider the application and form an opinion as to each of the three elements identified in s 85A(3), and the obligation to issue the certificate under s 85A(7) must be engaged by the formation of the relevant opinion: if the opinion is not validly formed in accordance with relevant legal requirements, the obligation would fall away; however the obligation in s 85A(7) does not depend on some objective view of whether the proposed development is complying development or not: Trives v Hornsby Shire Council.14 Building work must comply with the requirements of the Building Code of Australia and meet fire safety requirements (EPAR cll 130, 131). The council or certifier can impose conditions if required by the regulations, an EPI or a DCP, and must impose a condition relating to contribution to public amenities and public services if required (s 85A(6), (9)). If the development involves any building, subdivision or demolition work, there must be a sign erected on the site advising details of the certifier and principal contractor, and prohibiting unauthorised entry to the site (EPAR cl 136B). If the building is, or is to become, a BASIX affected building (seep 99), the complying development certificate must include a condition that the commitments listed in the BASIX certificate must be fulfilled (EPAR cl 136D). A complying development certificate lapses five years after the date endorsed on the certificate, unless the development is physically commenced on the land before that date (s 86A). An application can be made, complying with the requirements of Div 3 of Pt 4, to modify development the subject of a complying development certificate (s 87(2)).

Crown development A Crown development application is a development application made by or on behalf of the Crown (s 88(1)). A consent authority (other than the Minister) must not refuse its consent to a Crown development application or impose a condition on its consent, except with the approval of the Minister (s 89(1)). If a consent authority fails to determine a 14

[2015] NSWCA 158.

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Crown development application within the period prescribed by the regulations, the applicant or the consent authority may refer the application to the Minister (if the consent authority is not a council), or to the applicable joint regional planning panel (if the consent authority is a council) (s 89(2)). If the applicable regional panel fails to determine the application within the prescribed period, the applicant or the panel may refer the application to the Minister (s 89(5)). The consent authority must provide a copy of the development application, details of its proposed determination and reasons, and any relevant reports of another public authority (s 89(7)). Once a Crown development application is referred to the Minister by a consent authority or an applicable panel, the Minister may direct the relevant consent authority to approve the Crown development application, with or without specified conditions, or to refuse the application (s 89A(l)). If the consent authority fails to comply, it is deemed to have determined the application in accordance with the Minister's direction on the last date for compliance specified in the direction (s 89A(3)).

Development applications Formal requirements A 'development application' (DA) is an application for consent under Pt 4 of the EPAA to carry out development. An application for a complying development certificate is not a development application (s 4). A DA can be made by the owner of the land, or any other person with the written consent of the owner (EPAR cl 49). 15 Failure to obtain the consent of the owner means that the DA is defective, and any development consent granted before obtaining the consent of the owner will be invalid.16 However, a consent authority can consider a DA and grant development consent so long as the consent of the owner is obtained before the consent is granted.17 If the owner withdraws consent before the DA is determined, the consent authority can still continue to deal with the application on its merits.18 A DA made by a lessee of Crown land requires the written consent of the Crown. If the DA is made by a public authority, the consent of the owner of the land to which it relates is not required, but the public authority must serve a copy of the application on the owner (EPAR cl 49(2)). A single application may be made for one or more of the types of development specified in the definition of 'development' ins 4 (EPAA s 78A(2)). If approval is also required under the Local Government Act 1993, for example, to install a temporary structure on the land, and the consent authority is a council, the applicant can apply for development consei:it and ~ocal Government Act approval in the one application (s 78A(3)). If the council grants development consent, it is taken to have granted the relevant approval under the Local Government Act (EPAA s 78A(5)). The council can impose a condition that the approval is granted only to the applicant, and does not run with the land to which it applies, and can impose a condition that approval is granted for a specified time (s 78A(6)). 15

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Ther~ is no requirement in E_PAR cl 55 for further landowner's consent to be obtained if a development apphcahon 1s amended while under consideration by the consent authority: Rothwell Boys Pty Ltd v Coffs Harbour City Council (2012] NSWLEC 19. King v Great Lakes Shire Council (1986) 58 LGRA 366. Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55. Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 72 LGRA 52.

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The information required in a DA is specified in Pt 1 of Sch 1 to the EPAR. In addition to information describing the proposed development, the DA must: indicate whether the land is, or is part of, critical habitat; indicate whether the development is likely to affect threatened species, populations or ecological communities or their habitats significantly; list any approvals of the kind referred to in s 91(1); and provide the estimated cost of the development. Section 78A of the EPAA and cl 2 of Pt 1 of Sch 1 to the EPAR list the documents that must accompany the DA. These include a site plan of the land, and a sketch of the development. Failure to provide any of the documents specified in EPAA s 78A and cl 2 of Pt 1 of Sch 1 to the EPAR will invalidate any development consent.19 If the development involves the erection of a building, the DA must include an A4 plan of the building indicating its height and external configuration. If the development involves building work to alter, expand or rebuild an existing building, the DA must include a scaled plan of the existing building. A DA involving change of use of a building must include details of existing and proposed fire safety provisions. If the DA involves subdivision work, it must include preliminary engineering drawings of the work to be carried out. A DA for any development that involves the erection of a BASIX affected building, or which involves a change of building use by which a building becomes a BASIX affected building, must be accompanied by a BASIX certificate for the development (EPAR cl 2A, Sch 1). The Building Sustainability Index (BASIX) was introduced from 1 July 2004 when the SEPP - Building Sustainability Index (BASIX) 2004 and Environmental Planning and Assessment Amendment (Building Sustainability Index (BASIX)) Regulation 2004 came into effect. BASIX applies to residential development and requires assessment of how the proposed development performs by reference to several sustainability indices, including savings in mains-supplied potable water consumption, greenhouse gas emissions and thermal performance. The BASIX assessment process is an online program which assesses the house or unit design using information such as site location, house size, type of building materials and fittings for hot water, cooling and heating. Since 1 July 2007, BASIX applies to all residential development with a total estimated cost of works over $50,000. If the DA is in respect of designated development (other than for State significant development), it must be accompanied by an EIS (s 78A(8)(a)). If the DA is in respect of land that is, or is a part of, critical habitat or is likely to affect threatened species, populations or ecological communities or their habitats (other than for State significant development), it must be accompanied by an SIS prepared in accordance with Div 2 of Pt 6 of the Threatened Species Conservation Act 1995 (s 78A(8)(b)). 20 A development application for State significant development must be accompanied by an EIS prepared in the form prescribed by the regulations (s 78A(8A)). The requirements for an EIS and an SIS are discussed in Chapter 5. For all other development, the DA must be accompanied by a statement of environmental effects, which must indicate the environmental impacts of the development, how the environmental impacts of the development have been identified, the steps to be taken to protect the environment or to lessen the expected harm to the environment, and any matters required to be indicated by any guidelines issued 19 20

McGovern v Ku-ring-gai Council (2008] NSWCA 209. If the applicable EPI has biodiversity certification under the Threatened Species Conservation Act 1995, proposed development on biodiversity certified land is taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat: see Chapter 10, p 425.

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by the Secretary (cl 2(4) Sch 1). There are additional requirements for a statement of environmental effects if the DA relates to residential flat development to which SEPP 65 - Design Quality of Residential Apartment Development applies (cl 2(5)). Failure to include a statement of environmental effects will not necessarily invalidate any development consent granted, so long as the consent authority has sufficient information to consider the environmental effects. 21 A development application may be amended or varied by the applicant (but only with the agreement of the consent authority) at any time before the application is determined (EPAR cl 55(1)). 22 There is no specification in either the EPAA or the EPAR as to how the agreement of the consent authority is to be evidenced, and that may need to be determined by reference to the conduct of the consent authority, for example, in seeking concurrence from other authorities. 23 If an amendment or variation results in a change to the proposed development, the application to amend or vary the development application must have annexed to it written particulars sufficient to indicate the nature of the changed development (cl 55(2)).

Staged development A 'staged development application' is a DA that sets out concept proposals for the development of a site, and for which detailed proposals for separate parts of the site are to be the subject of subsequent development applications (s 83B(1)). The applicant must request that the DA is to be treated as a staged development application. If consent is granted on determination of a staged development application, a further DA will be needed for development on any part of the site, unless the staged development application also provided the required details of the development on that part of the site, and consent is granted for that first stage of the development (s 83B(3)).

Public notification The EPAA imposes obligations to notify applications for designated development and advertised development. Apart from these requirements (discussed below), if the DA relates to the erection of a building, the consent authority must make available to interested persons extracts of the DA which are sufficient to identify the applicant and the land to which the DA relates, and which contain a plan of the building indicating its height and external configuration (EPAR cl 56).

Designated development The formal requirements for notification of an application for consent to carry out designated development are set out ins 79(1) of the EPAA. In summary, those requirements are: • the DA, together with the accompanying information (which will include the EIS), must go on public exhibition for a period of not less than 30 days; 21

Cranky Rock Road Action Group Inc v Cowra Shire Council (2006] NSWCA 339; see also McGovern v Ku-ring-gai Council (2008] NSWCA 209.

22

The LEC does not have power on appeal to permit amendment of an application under cl 55 if the effect of the amendment is to convert the application into an original application: Radmy Constructions Pty Ltd v Hornsby Shire Council (2006) 145 LGERA 292; Blackmore Desig~roup Pty Ltd v Manly Council (2014] NSWLEC 164. \ Eco-Villages Australia Pty Ltd v Pittwater Council (2012] NSWLEC 49.

23

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• the consent authority must give written notice of the DA to owners or occupiers of adjoining land, and (if practicable) to owners and occupiers of land the use and enjoyment of which may be detrimentally affected if the designated development is carried out; • notice of the DA must be exhibited on the land; and • notice of the DA must be published in newspapers. During the period of public exhibition and submission, any person is entitled to inspect the DA and accompanying information, and to make submissions to the consent authority (s 79(4), (5)). Submissions by way of objections to the DA must set out the grounds of the objection (s 79(5)). Public exhibition is not required if the DA is amended, substituted or withdrawn and later replaced before it has been determined by the consent authority, and the consent authority has complied with the public exhibition and notification requirements, and the consent authority determines that the amended, substituted or later application differs only in minor respects from the original application (s 79(6)).

Advertised development Notice of a development application for consent to carry out advertised development is to be given in accordance with the EPAA, the EPAR, the relevant EPI, and any relevant DCP (s 79A(1)). The notification and publication requirements in Pt 6 Div 7 of the EPAR require that the consent authority give written notice of the DA to owners and occupiers of adjoining land and to public authorities which may have an interest in the determination of the application, and publish notice of the application in a local newspaper (cll 87, 88). The written notice must include a description of the land, the name of the applicant and the consent authority, a description of the proposed development, a statement that the application may be inspected, and a statement that any person may make submissions (cl 89(1)). The minimum period for exhibition is 14 days, or 30 days if the application is for nominated integrated development or threatened species development (cl 89(3)). The notice of an application for integrated development must include that it is integrated development and state the approvals required (cl 89(2)(a)). Notice of an application for threatened species development must state that it is threatened species development (cl 89(2)(b)). During the period of public exhibition and submission, any person is entitled to inspect the DA and accompanying information, and to make submissions to the consent authority. Submissions by way of objections to the DA must set out the grounds of the objection (cl 91). The notification provisions do not apply to an amended or substituted DA where the consent authority has complied with the notification requirements for the original application, and the consent authority is of the opinion that the amended, substituted or later application differs only in minor respects from the original application (cl 90). A DCP may identify specified development (other than designated development or advertised development) as requiring notification or advertising, and notification or advertising must comply with the provisions of the DCP (s 79A(2)). Failure to comply with those requirements may result in invalidity of any consent granted. 24

24

Tweed Business and Residents Focus Group Inc v Northern Region Joint Regional Planning Panel (2012] NSWLEC 166; Manning v Bathurst Regional Council (No 2) (2014] NSWLEC 186.

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Assessment The consent authority considering and determining a DA may be the Minister or some other person, the Planning Assessment Commission (PAC) or a joint regional planning panel, or the relevant local council. Most DAs determined by councils as consent authority are in fact determined by council officers under authority delegated by the council. 25 Some councils have delegated determination of DAs to independent panels, the earliest being in 2008 when Warringah Council established the Warringah Development Assessment Panel, and Manly Council established the Manly Independent Assessment Panel, to determine a range of DAs where there are unresolved submissions. Where the consent authority is the PAC or a joint regional planning panel, the relevant local council will be required to provide staff and facilities, and access to council records; the council (or councils) are also required to reimburse the Secretary for the remuneration, costs and expenses of the PAC or joint regional planning panel (ss 23N, 230). 26

Consultation and concurrence The consent authority may be required by the applicable EPI to consult with, or obtain the concurrence of, a specified person or authority. The consent authority must consult, or obtain concurrence, unless the consent authority decides to refuse development consent (EPAA s 79B(l)). However, if the consent authority is the Minister, he or she is required only to consult (s 79B(2)). Unless the EPI so specifies, a provision requiring consultation or concurrence does not apply to State significant development (s 79B(2A)). If the DA relates to development on land that is, or is part of, critical habitat, or is likely significantly to affect a threatened species, population or ecological community or habitat, the consent authority cannot grant consent without the concurrence of the Chief Executive of the Office of Environment and Heritage (OEH). If the Minister is the consent authority, consultation with the Minister administering the Threatened Species Conservation Act 1995 is required (EPAA s 79B(3)). Section 79B(5) lists the matters which must be taken into account in deciding whether to grant concurrence. The Chief Executive OEH may grant concurrence conditional on the taking of specified action (voluntary action) that the Chief Executive considers will significantly benefit threatened species conservation, but only if the Chief Executive is satisfied that the person who proposes to carry out the development to which the concurrence relates has agreed to take the voluntary action and agrees to the imposition of the condition. The voluntary action can include reservation of land or entering into a conservation agreement under the National Parks and Wildlife Act 1974, action to secure protection of land for conservation purposes, action to restore threatened species habitat, or the contribution of money for one of those purposes (s 79B(8), (8B)). The person whose concurrence is required may grant concurrence (which may be subject to conditions) or refuse concurrence. In doing so, that person is required to consider any matters specified in the EPI which imposes the concurrence requirement 25

26

If a consent has been granted under delegated authority, even if not formally notified, the council no longer has power under s 80 of the EPAA to determine the application: Brown v Randwick City Council (2011] NSWLEC 172. In 2013-14 council staff determined 73% of the total 84,159 new development approvals (59,389 development applications, 24,770 applications for complying development certificates); private certifiers determined 24%; councillors 2%; JRPPs 0.3%; and independent panels 0.3%: Department of Planning, Local Development Performance Monitoring, .

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(s 79B(8)). If that person does not respond within the time allowed, the cons~n_t authority can go ahead and determine the DA without the concurrence of the specified person (s 79B(11)). Otherwise, if the consent authority determines the DA without obtaining concurrence, or not subject to any conditions of the concurrence, the development consent is voidable (s 79B(10)). If the DA is for development on bushfire-prone land (other than a subdivision of land that could lawfully be used for residential or rural residential purposes or development for a special fire-protection purpose), the consent authority must be satisfied that the development conforms to the specifications and requirements of Planning for Bush Fire Protection (a document prepared by the NSW Rural Fire Service in co-operation with the Department), or there is a certificate by a person who is recognised by the NSW Rural Fire Service as a qualified consultant in bushfire risk assessment stating that the development conforms to the relevant specifications and requirements. If the consent authority is satisfied that the development does not conform to the relevant specifications and requirements, the consent authority may grant consent to the carrying out of the development if it has consulted with the Commissioner of the NSW Rural Fire Service concerning measures to be taken with respect to the development to protect persons, property and the environment from danger that may arise from a bushfire (s 79BA). Section 79BA does not apply to State significant development (s 79BA(1B)).

Integrated development The consent authority must forward a DA for development which is 'integrated development' to the authority or authorities whose approval is required under the applicable legislation within 14 days after the DA is lodged (EPAR cl 66). The ap?roval body may request additional information (cl 67). The approval body must ~otify ~he consent authority in writing, within 40 days, of its general terms of approval, mcludmg whether or not it will grant approval (cl 70). If the DA has to be publicly notified, this period is extended to 21 days after receiving the last of the submissions made during the applicable submission period, or after the consent authority notifies the approval body that no submissions were made (cl 70(1)(b)). If the approval body fails to advise the consent authority whether it will grant the approval, or of the general terms of its approval, the consent authority can determine the DA. If the approval body advises that it will not grant an approval that is required for the development to be lawfully carried out, the consent authority must refuse development consent (s 91A(4)). If the approval body advises that it will grant approval, and the consent authority decides to grant development consent, the consent must be consistent with the general terms of approval proposed to be granted by the approval body, and the consent authority can impose any condition that the approval body could impose as a condition of its approval (s 91A(3)). If the consent authority decides to refuse development consent, it must advise the approval body (EPAR cl 70(2)). If the approval body advises the consent authority of the general terms of its approval, and the consent authority grants development consent, the approval body must grant approval to any application for approval made within three years after the date on which development consent is granted, if the consent has not lapsed or been revoked (s 93(1)). The approval body cannot refuse to grant approval, and its approval must not be inconsistent with the development consent (s 91A(5)).

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Independent hearing and assessment panels Many councils have established independent hearing and assessment panels (IHAPs) to consider and advise on DAs. Under Div 4 of Pt 2A of the EPAA, a council may establish an IHAP to assess any aspect of a DA or other planning matter referred by the council, and must do so if required by an EPI (s 231(1), (2)). The required expertise for members of an IHAP includes planning, architecture, heritage, the environment, urban design, land economics, traffic and transport, law, engineering, tourism or government and public administration (s 231(3)). The council must provide staff and facilities for the IHAP (s 231(6)). The council must report to the Department annually the number of IHAPs appointed by the council in the preceding year, the matters referred to the panels in the preceding year, the persons appointed to the panels, and the decisions made by the council relating to matters referred to the panels, including the reasons for any decision not in accordance with an assessment by a panel (EPAR cl 268X). Some panels established by councils have determinative powers.

Matters to be considered Section 79C(l) sets out the matters which the consent authority is required to take into consideration in determining a DA: (1) In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application: (a) the provisions of: (i) any environmental planning instrument, and (ii) any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and (iii) any development control plan, and (iiia) any planning agreement that has been entered into under section 93F, or any draft planning agreement that a developer has offered to enter into under section 93F, (iv) the regulations (to the extent that they prescribe matters for the purposes of this paragraph), and (v) any coastal zone management plan (within the meaning of the Coastal Protection Act 1979), that apply to the land to which the development application relates, (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, (c) the suitability of the site for the development, (d) any submissions made in accordance with this Act or the regulations, (e) the public interest. Section 79C does not expressly refer to the principles of ecologically sustainable development. However, one of the objects of the EPAA, as stated ins 5(a)(vii), is to encourage ecologically sustainable development (ESD). The LEC has held that, in requiring a consent authority to take into account 'the public interest', s 79C(l)(e) obliges the consent authority to have regard to the principles of ESD in cases where issues relevant to those

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principles arise. 27 The Act defines ESD as having the same meaning as it has ins 6(2) of the Protection of the Environment Administration Act 1991, and so the applicable principles of ESD are: the precautionary principle; the principle of intergenerational equity; the conservation of biological diversity and ecological integrity; and improved valuation, pricing and incentive mechanisms. Section 79C(l)(a)(i) requires the consent authority to take into consideration the provisions of any relevant EPI. An EPI may provide specific criteria for assessment of particular types of development. For example, SEPP 32 - Urban Consolidation (Redevelopment of Urban Land) requires the Minister as consent authority to consider the effect of development on: the streetscape; privacy of, and availability of sunlight to, adjoining owners; noise; and whether adequate provision has been made for car parking and access. SEPP 55 - Remediation of Land requires the consent authority to consider whether the land is contaminated and, if it is, whether it is satisfied that the land is suitable in its contaminated state, or will be after remediation, for the purpose for which the development is proposed to be carried out (SEPP 55 cl 7). 28 An EPI may require consideration of other identified documents, for example the requirement in cl 28(2)(c) of SEPP 65 - Design Quality of Residential Apartment Development that the consent authority take into account the Apartment Design Guide (formerly, the Residential Flat Design Code). An EPI may impose development standards. If those development standards are non-discretionary, and the development complies with those standards, the consent authority is not entitled to take those standards into further consideration, must not refuse consent on the basis of those standards, and must not impose a condition of consent more onerous than those standards (s 79C(2)). If the development the subject of the application does not comply with those standards, the discretion of the consent authority is not limited by s 79C(2), and a provision of an EPI that allows flexibility in the application of a development standard may be applied (s 79C(3)). The consent authority is required under s 79C(l)(a)(ii) to consider the provisions of any proposed 'instrurnent',29 and is entitled to give weight to its perception of the likely, or unlikely, imminence of the relevant provisions of the instrument corning into force. The greater the certainty that a draft instrument will in fact be adopted, the greater the weight that can be given to it. 30 If the draft has in fact come into force, the consent authority is entitled to regard its provisions as certain and imminent. Even if the instrument contains transitional provisions stating that it is not to apply to the application before the consent authority, the consent authority is still entitled to have regard to its provisions as a matter relating to the 'public interest', referred to ins 79C(l)(e). 31 An example of such a transitional provision is cl 1.8A of the Standard Instrument LEP, 27

28

29

30 31

Carstens v Pittwater Council (1999) 111 LGERA 1; BGP Properties Pty Ltd v Lake Macquarie City Council (2004) 138 LGERA 237; Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10. The Court of Appeal approved this line of authority in Minister for Planning v Walker (2008) 161 LGERA 423 at [42]-[43]. The investigation and reporting requirements of cl 7 must be complied with and the consent authority must properly address the matters for consideration in cl 7: Moorebank Recyclers Pty Ltd v Benedict Industries Pty Ltd [2015] NSWLEC 40. Before the 2009 amendments to the EPAA s 79C(l)(a)(i) required consideration of 'any draft environmental planning instrument that is or has been placed on public exhibition and details of which have been notified to the consent authority'. Determining what is a 'proposed instrument' for the purposes of s 79C(l)(a)(ii) can be complex: see, for example, Teys Australia Southern Phj Ltd v Burns [2015] NSWLEC 1. GPT RE Ltd v Belmorgan Property Development Phj Ltd [2008] NSWCA 256. Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289.

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which provides that a development application made before the commencement of the LEP, and not finally determined before that commencement, must be determined as if the LEP had not commenced. 32 The consent authority is required by s 79C(l)(a)(iii) to consider the provisions of any development control plan. 33 While not determinative, provisions in a DCP setting standards which are directly relevant to the application for consent (for example, minimum distances for the location of brothels from sensitive uses such as schools) are entitled to significant weight. 34 The principles relevant to the consideration of development control plans were summarised by McClellan CJ in Stockland Development Pty Ltd v Manly Council35 in the following terms: • A development control plan adopted after consultation with interested persons, including the affected community, will be given significantly more weight than one adopted with little or no community consultation. • A development control plan which has been consistently applied by a council will be given significantly greater weight than one which has only been selectively applied. • A development control plan which can be demonstrated, either inherently or perhaps by the passing of time, to bring about an inappropriate planning solution, especially an outcome which conflicts with other policy outcomes adopted at a State, regional or local level, will be given less weight than a development control plan which provides a sensible planning,outcome consistent with other policies. • Consistency of decision-making must be a fundamental objective of those who make administrative decisions. That objective is assisted by the adoption of development control plans and the making of decisions in individual cases which are consistent with them. If this is done, those with an interest in the site under consideration or who may be affected by any development of it have an opportunity to make decisions in relation to their own property which is informed by an appreciation of the likely future development of nearby property. The Court of Appeal has held that the provisions of a DCP are to be taken into consideration as a fundamental element in, or a focal point of, the decision making process, without being determinative (Zhang v Canterbury City Council36 ); and the objectives which the relevant provisions are intended to serve are relevant in undertaking the consideration required bys 79C(l)(a)(iii) of the Act. 37 Section 79C(3A) of the Act (inserted in 2013) now requires that if a proposed development complies with standards specified in a DCP the consent authority is not to require more onerous standards and, if the development does not comply, the consent authority is to be flexible in applying those provisions and allow reasonable alternative solutions that achieve the objects of those standards. 32

33

34 35 36 37

There is a divergence of views as to the weight to be given to an LEP that has come into force when applying cl 1.8A of the standard instrument LEP: see Alamdo Holdings Pty Ltd v Hills Shire Council (2012] NSWLEC 1302; Maygood Australia Pty Ltd v Willoughby City Council (2013] NSWLEC 142. The obligation under s 79C(l)(a)(iii) is to consider the DCP if it is of relevance to the development the subject of the application; that obligation is concerned with substantive matters because they are relevant to the determination, but does not extend to procedural provisions such as notification requirements because they are antecedent to the function exercised in determining an application: V' landys v Land and Environment Court of NSW (2012] NSWLEC 218. Zhang v Canterbury City Council (2001) 51 NSWLR 589; Deancliff Developments Phj Ltd v Hornsby Shire Council (2005] NSWCA 271. (2004] NSWLEC 472 at (87]. (2001) 51 NSWLR 589 at (75]. Ibid at [70].

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Section 79C(l)(b) requires the consent authority to consider the likely impacts of the proposed development, including environmental impacts on both the natural and built environments. That encompasses all likely impacts of the development on the natural environment, including on threatened species, populations or ecological communities, or their habitats. 38 For development other than designated development, the DA must be accompanied by a statement of environmental effects, which must indicate the environmental impacts of the development; how those impacts have been identified; the steps to be taken to protect the environment or to lessen expected harm; and any matters required to be indicated in guidelines by the Secretary (EPAR cl 2(1)(c), (4), Sch 1). The relatively limited role of the statement of environmental effects has been acknowledged by the courts, reflecting as it does the applicant's perception of likely environmental impacts rather than an independent assessment. 39 Assessment of environmental impacts for designated development, for development on land that is critical habitat or is likely significantly to affect threatened species, for major projects, and for activities which do not require development consent, is discussed in Chapter 5. In considering the likely impacts of a proposed development under s 79C(l)(b), the consent authority is also required to consider social and economic impacts in the locality. Economic impacts including likely employment generation, viability of existing and future businesses, and impact on property values are relevant considerations.40 Section 79C(l)(c) requires consideration of the suitability of the site for the development, which may include how the proposal fits in the locality and whether the site attributes are appropriate for the proposed development. A proposed development is expected to accommodate the impact of existing lawful development on adjoining or nearby land. 41 The consent authority may be faced with a range of policies relevant to the proposed development. Planning policies may be adopted by a council, or by other authorities, such as the State government's Metropolitan Plan for Sydney 2036. Policies do not have statutory force, but will still be relevant in consideration of the public interest under s 79C(l)(e), and the consent authority is entitled to have regard to them. 42 The matters relevant when determining the weight to be given to a planning policy adopted by a council were summarised by McClellan CJ in Stockland Development Pty Ltd v Manly Council 43 in the following terms: • the extent, if any, of research and public consultation undertaken when creating the policy; • the time during which the policy has been in force and the extent of any review of its effectiveness; • the extent to which the policy has been departed from in prior decisions; • the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans; 38

39 40 41 42 43

Davis v Gosford City Council [2014] NSWCA 343: an effect on threatened species, populations or ecological communities or their habitats that is not likely to be a significant effect (as determined in accordance with s SA of the EPAA) so as to require the provision of a species impact statement, is not an irrelevant matter for consideration under s 79C(l). MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581. Lakeside Plaza Pty Ltd v Legal and General Properties No 2 Ltd (1992) 76 LGRA 60; Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231. Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68; Concrite Phj Ltd v South Sydney City Council (2001) 117 LGERA 87. Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003] NSWCA 289; Direct Factory Outlets Homebush Pty Ltd v Stratlifield Municipal Council (2006] NSWLEC 318. (2004] NSWLEC 472 at (92].

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• the compatibility of the policy with other policies adopted by a council or by any other relevant government agency; • whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it. Community responses to a proposed development are aspects of the public interest within the meaning of s 79C(l)(e): Telstra Corporation Ltd v Hornsby Shire Council. 44 An evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality, and that involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect, for example, on the amenity of the locality. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact pursuant to s 79C(1) of the Act. The EPAR sets out additional matters that must be considered for particular types of development, including development on land to which the Government Coastal Policy applies, and the requirement to have regard to fire safety considerations for change of building use that does not involve rebuilding, alteration or extension of the building (ell 92, 93). While the weight to be given to each of the s 79C factors is a matter for the consent authority, the consent authority is obliged to consider those factors which are objectively of relevance for the application.45 The consideration must be a genuine consideration and mere advertence to a matter required to be taken into account will not be sufficient. 46 For example, the requirement under s 79C(l)(a)(ii) that the consent authority take into consideration the provisions of a draft instrument may not be met simply by having the draft drawn to the attention of the individual councillors considering the DA. 47 Difficulties can arise in determining whether a council, as a collective decision-maker, reliant on documents and reports provided by council officers, has actually taken mandatory considerations into account. 48 Where a majority of councillors deprive the minority of an opportunity to consider relevant material, the decision may be invalid. 49 A challenger must establish that a mandatory consideration was not taken into account and that this error was material to the decision.50

Determination The consent authority determines a DA by granting consent, which may be subject to conditions, or by refusing consent (EPAA s 80(1)). If the consent authority does not determine the DA within 40 days (or 60 days in the case of designated development, integrated development or development requiring concurrence), it is deemed to have refused the application for the purposes of any appeal rights (s 82(1), EPAR cl 113). If the 44 45 46

47 48 49 50

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(2006) 146 LGERA 10. See also New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402. Eve rail v Ku-ring-gai Municipal Council (1991) 72 LGRA 369; Parramatta City Council v Hale (1982) 47 LGRA 319. Zhang v Canterbury City Council (2001) 51 NSWLR 589; Centro Properties Ltd v Hurstville City Council (2004) 135 LGERA 257; Weal v Bathurst City Council (2000) 111 LGERA 181; Anderson v Director-General of Department of Environment and Climate Change [2008] NSWCA 337. GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256. South East Forests Rescue Inc v Bega Valley Shire Council [2011] NSWLEC 250. Parramatta City Council v Hale (1982) 47 LGRA 319. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

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period during which submissions in relation to a proposal for designated development or other advertised development may be made exceeds 30 days, the deemed refusal period is increased by that part of the submission period that exceeds 30 days (EPAR cl 113(3)). When calculating the length of an assessment period for the purposes of the deemed refusal provisions, the day on which the DA is lodged and the following day are disregarded (EPAR cl 107). The time for determination is extended if the concurrence of a person or authority is required or if the consent authority requests further information from the applicant (cll 106-112). The assessment period 'clock' stops if a request for additional information is made by the consent authority within 25 days from the start of the deemed refusal period, or by a referral body within 25 days of receiving the DA from the consent authority (cll 109, 110, 111). The assessment period 'clock' restarts if the applicant gives the requested information to the consent authority or notifies the consent authority that the information will not be provided. If a referral body makes the request for additional information, the 'clock' restarts two days after the consent authority refers the requested information or notifies the referral agency that the information will not be provided. The 'clock' can be restarted by the consent authority if the applicant does not give the requested information within the time specified (which must be reasonable) or any further time allowed. The consent authority must notify the applicant of the effect of the 'stop the clock' provisions on the assessment period (cl 112). The consent authority may grant consent for the whole development; for the development, except for a specified excluded part or aspect; or for a specified part or aspect of the development (s 80(4)). The specific provisions for staged development in Div 2A of Pt 4 have been set out above. If the consent authority has been advised that the Minister has requested that the Planning Assessment Commission (PAC) conduct a review in relation to part or all of a development the subject of a DA, it must not determine the DA until the review has been conducted and it has considered the findings and recommendations of PAC, and any comments made by the Minister (s 80(6)). A similar provision applies where the Minister is the consent authority (s 80(7)). The consent authority cannot determine a DA for designated development until after the period for submissions has ended or, if a submission has been made within the submission period, until 21 days after a copy of that submission has been sent to the Secretary (s 80(9)). A development consent can be granted for a period of up to five years. Consent may be granted for a shorter period, except for staged development. A development consent for the erection or demolition of a building or the subdivision of land must be granted for at least two years (s 95). 51 The consent authority must give notice of its determination to the applicant, to any objector (if the application is for designated development) and any other persons as required by the regulations (s 81(1)). If the consent authority is not the council, it must notify the council of the determination (s 81(2)). Notice must be sent within 14 days 51

Section 95 was amended from 26 May 2010 by the insertion of s 95(3A), which provides that the reduction to a period of less than five years permitted by s 95(2) does not apply to a development consent that operated before, and lapsed after, 26 May 2010, or that lapsed during the period 22 April 2010 to 26 May 2010. The effect of this provision is that a development consent subject to a lapsing period of less than five years that had not lapsed before 22 April 2010 was extended to the maximum five-year period; and any development consent granted between 26 May 2010 and 1 July 2011 must be subject to the maximum five-year lapsing period. Section 95(3A) permits the making of a regulation to again require the minimum lapsing period to be five years.

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• variation to aspects of the development identified in the DA; • compliance with the requirements of other agencies (such as those responsible for road safety or fire safety); • control of the construction of the development; and • control of the operation of the development once constructed.

after the date of the determination and specify the date of the determination (EPAR cll lO0(l)(d), 102(1)).52 Clause 100 of the EPAR sets out the requirements of the notice. If the application has been granted, the written notice must include: • the terms of any conditions imposed and the reasons for imposing those conditions; • whether the applicant has the right to request review; • if the consent is for staged development, whether a subsequent development application is required for any part of the site; • the date on which the determination was made; • the date from which consent operates; • the date on which the consent will lapse; • if the development involves a building but does not require a construction certificate for the development to be carried out, the class of the building under the Building Code of Australia; • whether the PAC has conducted a review of the application; • which approval bodies have given general terms of approval in relation to the development, as referred to in s 93 of the EPAA; and • whether the EPAA gives the applicant, or any objector, the right of appeal against the determination. If the application has been refused, the notice must include the reasons for the refusal and notification of whether there are any appeal rights. The development consent is constituted by the actual determination of the council or its officer. Where there is an inconsistency between that and a description in a notice of determination, the development to which the consent extends must be determined by having regard to the minutes of the council with its actual resolution or to the written decision of the council's delegate: Pselletes v Randwick City Council. 53 Both a decision to grant consent, and the formal communication to the applicant, are required and the consent authority can recall and rescind or alter the decision before it is formally communicated to the applicant: Shanahan v Strathfield Municipal Council. 54 The consent authority may give public notice of the granting of a development consent: if such notification complies with the requirements of cl 124 of the EPAR, the validity of the consent cannot be questioned except those commenced in the LEC at any time before the expiration of three months from the date on which public notice was given (s 101).55

Development consent Conditions There are four broad categories of conditions that may be imposed on a development consent:56 52

53 54 55

56

Section 153 of the EPAA specifies how notices are to be served or given. The deemed date of delivery is important for determining whether appeal rights have been exercised in time: Figtree Reserve Pty Ltd v Goulburn Mulwaree Shire Council [2013) NSWLEC 65. [2009) NSWCA 262. [1973) 2 NSWLR 740. If notice is not given 'in accordance with the regulations' it will not trigger the commencement of the limitation period ins 101: Hoxton Park Residents Action Group Inc v Liverpool City Council [2011) NSWCA 349. GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008) NSWCA 256 at [45) per Basten JA.

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The consent authority may impose a condition on the development consent if: • it relates to any matter referred to in s 79C of relevance to the development; • it requires the modification or surrender of a consent granted under the EPAA or an existing use right; • it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land; • it limits the period during which development may be carried out in accordance with the consent; • it requires the removal of buildings and works (or any part of them) at the end of the period during which the development may be carried out; • it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to ins 79C(l) relevant to the development; • it modifies details of the development the subject of the development application; • it is authorised under s 80(3), (5), 80A(5)-(9), 94, 94A, 94EF or 94F. (s 80A(l))

The regulations may prescribe conditions (s 80A(ll)). Part 6 Div BA of the EPAR contains prescribed conditions of consent: for example, cl 98E requires that, if the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must, at the person's own expense, protect and support the adjoining premises from possible damage from the excavation and, where necessary, underpin the adjoining premises to prevent any such damage. The validity of a condition is to be assessed by reference to the scope and purpose of the statutory power under which it is imposed: Botany Bay City Council v Saab Corp Pty Ltd. 57 Many of the cases apply the threefold Newbury test that the condition: be imposed for a planning purpose; relate fairly and reasonably to the development for which the consent is given; and that it be reasonable. 58 The test of 'reasonableness' is the Wednesbury test - namely, whether the condition is so unreasonable that no reasonable decision-maker could have imposed it. 59 In applying the Newbury test to the statutory power in s 80A(l) to impose a condition, a condition must be both fair and reasonable as it relates to a matter identified ins 79C(l), and it must be of relevance to the development the subject of the consent. 60 There is a degree of evaluative judgment for the consent authority: for example, in considering under s 79C(l)(b) the likely impacts of a proposed development, there may be a question as to how distant, remote or indirect the relationship may be between the development and the likely impacts on the environment. 61 A 57 58 59 60 61

[2011) NSWCA 308. Newbury District Council v Secretary of State for the Environment [1981) AC 578; Western Australia Plnnnillg Commission v Temwood Holdings Pty Ltd (2004) 221 CLR 30. Woolworths Ltd v Pallas Newco Pty Ltd [2004) NSWCA 422; Westfield Management Ltd v Perpetual Tru stee Co Ltd [2006) NSWCA 245. Cavasinni Constru ctions Pty Lid v Fairfield City Council [2010) NSWLEC 65. Botany Bay City Council v Saab Corp Pty Ltd [2011) NSWCA 308 at [9).

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condition which does not meet these requirements will be invalid. Depending on how central the condition is to the development consent, the invalidity of the condition may invalidate the consent as a whole. 62 A condition may be imposed which limits the period during which the development may be carried out (s 80A(1)(d)). This can be used to limit a proposed use, such as a brothel, to a probationary or trial period, for example, a period of 12 months.63 The consent authority may grant consent subject to a 'reviewable condition', which is a condition that permits extended hours of operation or increases the maximum number of persons permitted in a building. A development consent that is granted subject to a reviewable condition may be granted subject to a further condition that the consent authority may review the condition at any time or at intervals specified by the consent (s 80A(10B)). A decision by a consent authority to change a reviewable condition is taken to be a determination of a development consent for the purposes of review or appeal rights (s 80A(10D)). A condition can be expressed in terms of express outcomes or objectives that are to be achieved, and clear criteria against which achievement of the outcome or objective can be assessed (s 80A(4)). The Court of Appeal has adopted a purposive approach to this provision, holding that the term 'outcomes' is not to be understood in its ordinary meaning of a result or visible effect, but rather in the sense of a broader objective, which will not be sufficient to identify a particular result. Objectives can be identified in a manner which includes the criteria, so long as the criteria are clear. Section 80A(4) is intended to allow a condition to require a variation of a proposal where the intended result is sufficiently identified, but the means of achieving it are left to the applicant. 64 Conditions requiring monetary contributions cannot be imposed under the general power to impose conditions under s BOA. 65 Such conditions are authorised under Div 6 of Pt 4 (discussed at p 120).

Finality The consent authority must frame conditions which actually deal with the issues relating to the matters listed ins 79C, and it cannot postpone the resolution of difficult issues or refer them to others for determination. Central matters such as floor space ratio, height and position of any building on the site, and measures to reduce environmental impact must be decided at the time of granting consent.66 The consent authority must deal with such matters by imposing conditions and cannot, for example, rely on a deed entered into with the developer dealing with that matter. 67 A development consent which leaves open the possibility that the development carried out will be significantly different from the development for which consent was sought, or which lacks finality or is uncertain, may be invalid.68 These two categories may overlap in circumstances where a develop62 63 64 65 66

67 68

Greek Australian Finance Corporation v Sydney City Council (1974) 29 LGRA 130; Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38. Zhang v Canterbun; CihJ Council (2001) 51 NSWLR 589. Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256. Fitch v Slwalhaven City Council (1987) 67 LGRA 165. Lend Lease Management Phj Ltd v Sydney City Council (1986) 68 LGRA 61; Mison v Randwick Municipal Council (1991) 73 LGRA 349; Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79; Aldous v Greater Taree City Council [2009] NSWLEC 17. Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23. Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248.

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ment consent is granted subject to a condition which allows for significant variation of the development proposed.69 A condition will not necessarily be beyond power because it lacks specificity or particularity. 70 The central issue is whether a consent has been given to the development that was the subject of the DA. 71 Matters which are ancillary to the core purpose of the development can be made the subject of a condition which requires the applicant to carry out a specified aspect of the development to the satisfaction of the consent authority or specified person (s 80A(2)). A consent authority may grant consent subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition (s 80(3)). A 'deferred commencement' consent must be identified as such (EPAR cl 95(1)). The consent authority may specify the period within which the applicant must provide evidence sufficient to enable it to be satisfied of the specified matters and, if so, the consent authority must notify the applicant whether it is satisfied (cl 95).72 A development consent subject to a deferred commencement condition will lapse if the applicant fails to satisfy the consent authority as to the specified matter within five years from the grant of the consent, or within any shorter period specified by the consent authority (s 95(6)).73 The consent authority cannot use a deferred commencement consent to leave unresolved, and for future determination, issues relevant to the impact of the proposed development or to avoid the obligation to consider all relevant matters as required by s 79C.74

Construing a development consent A development consent is a public document that constitutes a unilateral act on the part of the consent authority, rather than a private contract between the parties. A consent runs with the land and enures for the benefit of subsequent owners and occupiers. The consent must be construed objectively, based on the document that constitutes the approval; the terms of another document may be incorporated in a development approval either expressly or by necessary implication.75 Determining whether it is open to consider extrinsic documents such as the development application, or evidence of the nature of the site, is a complex issue and depends on whether recourse to such documents is necessary in order to establish the true meaning of the consent. 76

Lapse, modification and revocation A development consent lapses five years after the date on which it operates, or earlier if granted for a shorter period (s 95(1), (2)). If the initial consent was granted for a period 69 70 71 72

73 74 75 76

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23. Hu rstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248; Kindimindi Investments Phj Ltd v Lane Cove Council [2006] NSWCA 23; Botany Bay CihJ Council v Saab Corp Pty Ltd (2011] NSWCA 308. GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA 256. The regulations may provide that, for the purpose of enabling a Part 4A certificate or a complying development certificate to be issued by a certifying authority, a requirement for a consent authority or council to be satisfied as to any specified matter may be complied with if the certifying authority is satisfied as to that matter: s 1090; cl 161 of the EPAR lists a number of such matters. Roberts v Blue Mountains City Council (2012] NSWLEC 2. Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, NSWLEC, Talbot J, No 10649 of 1996, 11 December 1996); Weal v Bathurst City Council (2000) 111 LGERA 181. Auburn Municipal Council v Szabo (1989) 67 LGRA 427; Ryde Municipal Council v Royal Rude Homes (1970) 19 LGRA 321. For a recent examination of the authorities and principles, see Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103.

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of less than five years, the applicant or any other person entitled to rely on the consent can apply to the consent authority for an extension of one year. The extension may be granted if the consent authority is satisfied that the applicant has shown good cause (s 95A). There are limitations on the ability of a consent authority to reduce the period of a development consent to less than five years. A development consent to erect or demolish a building or to subdivide land cannot be granted so as to lapse within two years after the date from which the consent operates (s 95(3)(a)), and the regulations may prescribe the type of development and the period (s 95(3)(b)). The Environmental Planning and Assessment Amendment (Development Consents) Act 2010, which came into effect on 26 May 2010, extended the lapsing period of existing development consents that were operative and subject to a reduction as at 22 April 2010 to the maximum five-year period. That amending legislation also precluded a consent authority from reducing the period of a development consent to less than five years, for consents granted until 1 July 2011. From that date, a consent authority is again able to reduce the lapsing period to less than five years, unless a regulation is made (s 95(3A)). If the development is a use of land, the consent will lapse unless the use is actually commenced before the relevant date (s 95(5)). Development consent for the erection of a building, the subdivision of land or the carrying out of a work does not lapse if building, engineering or construction work is physically commenced on the land to which the consent applies (s 95(4)). The work must relate to the building, subdivision or work and must be in accordance with the terms of the development consent. 77 For development which comprises the subdivision of land, the term 'engineering work' in the phrase 'building, engineering or construction work' is to be given a broad meaning to include all the activities associated with, and forming a necessary part of, the discipline of engineering applicable to the subdivision of land. That may include physical survey or geotechnical investigation work. 78 The relevant work must be commenced on the land in a physical sense, and off-site work such as design and planning work does not constitute physical commencement of the development for the purposes of s 95(4). 79 The regulations may set out circumstances in which work is or is not taken to be physically commenced for the purposes of s 95 (s 95(7)). The person entitled to rely on a development consent can apply to the consent authority for modification of the consent. The modification can include the amendment or disallowance of a condition requiring monetary contribution imposed under s 94, 80 or deletion of a condition not validly imposed on the original consent.81 If the application is for a change to the consent which is more than the correction of a minor error, misdescription or miscalculation, the consent authority must first consider whether the proposed modification is of minimal environmental impact. If it is so satisfied, and is also satisfied that the development to which the consent as modified is substantially the same as the original development, the consent authority can modify the consent, subject to complying with any requirement in the regulations or any development control plan to notify the application. The consent authority must consider any submissions made 77

Iron Gates Development Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Detain Pty Ltd v Byron Shire Council [2002] NSWCA 404; Kand M Prodnnovski Pty Ltd v Wollongong City Council

78 79 80 81

Hunter Development Brokerage Ply Ltd v Cessnock City Council (2005] NSWCA 169.

(2013] NSWCA 202.

in response (s 96(1A)). In other circumstances, if the consent authority is satisfied that the development to which the consent as modified is substantially the same as the original development, it must consult with the relevant Minister or authority whose concurrence was required, or approval body if it is integrated development; notify the application if the regulations or a DCP plan requires; and consider any submissions received (s 96(2)). In determining whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted, the consent authority is required to consider both qualitative and quantitative aspects of the development, and to consider whether the development as modified is essentially or materially the same as the approved development. 82 The relevant comparison is that between the development as proposed to be modified and the development as originally approved, that is, before any previous modifications. The consent authority must take into consideration any of the s 79C matters that are relevant (s 96(3)), and can impose conditions when determining an application for modification. 83 An application for modification of a development consent can be made to provide retrospective approval for development already carried out otherwise than in accordance with development consent. 84 If the consent relates to land that is, or is part of, critical habitat, or the development is likely to significantly affect a threatened species, population, ecological community, or habitat, the consent authority must comply with the requirements of s 79B(3) to (7), which include the requirement to obtain concurrence of the Chief Executive of the Office of Environment and Heritage or (if the consent authority is a Minister) to consult (s 96(5)). The consent authority can modify a development consent granted by the LEC (s 96AA(l)). The consent authority must consider the matters referred to in s 79C and, if the development is on land that is critical habitat, or is likely to significantly affect threatened species, concurrence of the Chief Executive of the Office of Environment and Heritage will be required (s 96AA(1A), (lB)). If the consent authority has failed to determine a modification application within 40 days, it is deemed to have refused the application for the purposes of appeal rights (EPAR cl 122A). The Secretary, or a council, can revoke or modify a development consent, if satisfied that the development should not be carried out or completed, or should not be carried out or completed except with modifications. This consideration is made having regard to the provisions of a proposed SEPP, for the Secretary, or of a draft LEP in the case of the council (s 96A(l)). This provision does not apply to a consent granted by the LEC or the Minister (s 96A(9)). Any person who will be adversely affected is entitled to written notice and the opportunity to appear to show cause why the consent should not be revoked or modified (s 96A(3)). Compensation is payable for expenditure incurred between the date on which the consent becomes operative and the date of service of notice of the proposed revocation or modification which is rendered abortive by the revocation or modification (s 96A(7)).

82

Ibid.

Arkibuilt Pty Ltd v Ku-ring-gai Council (2006] NSWLEC 502. Australian International Academy of Education Inc v Hills Shire Council (2013] NSWLEC 1.

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83 84

Vacik Ply Ltd v Penrith City Council (unreported, NSWLEC, Stein J, 24 February 1992); Mato Projects (No 2) Pty Ltd v North Sydney Council (1999] NSWLEC 280; North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 43 NSWLR 468. 1643 Pit/water Road Pty Ltd v Pittwater Council (2004] NSWLEC 685. Windy Dropdown Pty Ltd v Wnrringah Council (2000] NSWLEC 240.

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Certification of development The EPAA provides for certification of development in two contexts: approval of complying development under Div 3 of Pt 4, and in the certification of various steps in the development process under Pt 4A. A 'certifying authority' is defined ins 4 of the Act to be a person authorised by or under s 85A to issue complying development certificates, or authorised by or under s 1090 to issue Part 4A certificates. That includes the council or an accredited certifier, and also a consent authority for Part 4A certificates. The process for obtaining a 'complying development certificate' under Div 3 of Pt 4 has been outlined above at p 96. A complying development certificate states that certain development is complying development, and, if carried out as specified in the certificate, will comply with relevant development standards and the regulations. A complying development certificate is, unless expressly excluded, defined in s 4 to be a development consent. Part 4A of the Act sets out provisions enabling the certification of certain stages in development control. The following certificates (referred to in the EPAA as 'Part 4A certificates') can be issued: • • • •

compliance certificate; construction certificate; occupation certificate; subdivision certificate. (s 109C(l))

A single certificate may deal with any number of matters (s 109C(1A)).

Certificates A compliance certificate may be issued to certify that specified building or subdivision work has been completed as specified and complies with plans and specifications; that a condition attached to a development consent or complying development certificate has been complied with; that a specified building has a specified classification in accordance with the Building Code of Australia; that any specified aspect of development complies with any other provisions prescribed by the regulations; or that any specified aspect (including design) complies with specified standards or requirements (s 109C(l)(a)). A compliance certificate relating to building work or subdivision work can only be issued where the certifying authority is satisfied that a development consent or complying development certificate is in force (s 109G). A construction certificate is a certificate to the effect that work completed in accordance with specified plans and specifications will comply with the requirements of the regulations relating to the erection of buildings and subdivision of land (s 109C(l)(b)). The certifying authority must be satisfied that the requirements of any regulations relating to erection of buildings or subdivision of land are met, and that any required long service levy has been paid (s 109F(l)). A construction certificate cannot be issued after the building work or subdivision work to which it relates has been physically commenced on the land (s 109F(1A)). An occupation certificate authorises the occupation and use of a new building or a change of building use for an existing building (s 109C(l)(c)). There are two types of occupation certificates: an interim occupation certificate and a final occupation certificate (s 109H). An occupation certificate must not be issued unless any preconditions to

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the issue of the certificate specified in a development consent or complying development certificate, or any requirements of a planning agreement referred to in s 93F that, by its terms, are required to be complied with before such a certificate is issued, have been met (s 109H(2)). 85 Occupation or use of a new building is not permitted unless an occupation certificate has been issued (s 109M). A change of building use also requires an occupation certificate (s 109N). A subdivision certificate authorises the registration of a plan of subdivision (s 109C(l)(d)). The certifying authority must be satisfied of a range of matters listed ins 109J(l), which includes whether the applicant has complied with the conditions of any development consent. If subdivision work is required for the subdivision, the certifying authority must be satisfied that the work has been completed, or that agreement has been reached for payment for work to be completed by the consent authority, or for security for work to be carried out by the applicant (s 109J(2)).

Issuing authority Compliance certificates, construction certificates and occupation certificates can be issued by a consent authority, the council or an accredited certifier. A subdivision certificate can be issued by the consent authority or council, if the subdivision is the subject of development consent. If the subdivision is not the subject of development consent, the subdivision certificate can only be issued by the council. For subdivision carried out by or on behalf of the Crown or a prescribed person, the subdivision certificate can be issued by the Crown or prescribed person, or any person acting on their behalf. If an EPI identifies subdivision as being of a kind for which an accredited certifier can issue a subdivision certificate, the subdivision certificate can be issued by an accredited certifier (s 1090).

Issue of construction certificates Section 109F of the EPAA restricts the issue of a construction certificate, in particular in providing that a construction certificate has no effect if it is issued after the building work or subdivision work to which it relates is physically commenced on the land to which the relevant development consent applies (s 109F(1A)). Clauses 145 and 146 of the EPAR apply to the issue of a construction certificate. A certifying authority must not issue a construction certificate for building work unless: • the plans and specifications for the building include such matters as each relevant BASIX certificate requires; • the design and construction of the building are not inconsistent with the development consent; • the proposed building will comply with the relevant requirements of the Building Code of Australia. (cl 145(1)) A certifying authority must not issue a construction certificate for subdivision work unless the design and construction of the work 'are not inconsistent with' the development consent (cl 145(2)). That phrase is used in its ordinary meaning, and the issue is whether the specifications in the development consent and those in the construction certificate are inconsistent in the sense of lacking harmony between the different elements or lacking congruity. 86 A certifying authority must not issue a construction certificate for 85 86

Cessnock City Council v Laila Investments Pty Ltd (2012] NSWLEC 206. Burwood Council v Ralan Burwood Pty Ltd (No 3) (2014] NSWCA 404.

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building work or subdivision work under a development consent unless each condition or agreement requiring the provision of security, each condition requiring the payment of a monetary contribution or levy, and each other condition of the development consent that must be complied with before the issue of a construction certificate may be issued, has been complied with (cl 146). Section 80(12) of the EPAA has the effect of deeming the plans and specifications issued by the accredited certifier with respect to a construction certificate to be part of the development consent and so, to the extent that there may be an inconsistency between those plans and specifications and those approved in the consent, the former will prevail.B7

to substitute a decision for that of the original decision-maker and can have regard to fresh or additional evidence that was not before the original decision-maker (LECA s 39).

Developer appeals The applicant for, or holder of, development consent can appeal to the LEC against the following decisions: • refusal of an application for extension of development consent granted for less than five years (EPAA s 95A(3)); • revocation or modification of the development consent (s 96A(5)); • determination of application for development consent, including a determination on internal review under s 82A (s 97(1)); • refusal of application to modify a development consent granted by the consent authority or the court (s 97AA); • imposition, or refusal to release, security (s 98A(l)); • refusal to issue a construction certificate, a final occupation certificate or a subdivision certificate, or to issue a construction certificate subject to conditions (s 109K(l)); • refusal to issue a building certificate (s 149F(l)).

Accredited certifiers The Building Professionals Board accredits certifiers, including individual council officers, to issue construction, occupation, subdivision, strata, compliance and complying development certificates under the EPAA and other legislation, including for example under the Swimming Pools Act 1992; investigates complaints against accredited certifiers; and audits accredited certifiers and councils in their certification role. The Board's constitution and functions are provided in the Building Professionals Act 2005 (BPA). Both individuals and bodies corporate can be accredited as accredited certifiers.

Appeals and review If the consent authority is a council, an applicant for development consent can request the council to review its determination of the application, other than an application for a complying development certificate, or an application in respect of designated development, integrated development or an application by the Crown (EPAA s 82A). The determination cannot be reviewed after the time for appealing the determination to the LEC has expired, unless an appeal has been lodged or after any appeal has been disposed of by the LEC (s 82A(2A)). The applicant can make amendments to the development described in the original application; however, the council must be satisfied that the development, as amended, is substantially the same development as the development described in the original application (s 82A(3A), (4)(c)). The council must conduct a review, and on review can confirm or change its determination (s 82A(2), (4A)). A similar provision is made for review by the council of a determination made in relation to an application to modify a development consent granted by the council or by the LEC (s 96AB).

Merits appeals under Part 4 Division 8 As discussed in Chapter 2, appeals against decisions made under the EPAA are included in class 1 of the LEC jurisdiction, and are heard by one or more Commissioners or by a judge (Land and Environment Court Act 1979 (LECA s 33). These appeals are appeals on the merits, which means that the court takes a fresh look at the issues and exercises all the powers and discretions of the original decision-maker.BB The court has the power 87 88

Ibid. That may include the exercise of powers conferred under other legislation for which there may not be a right of appeal, for example under the Roads Act 1993: Goldberg v Waverley Council [2007] NSWLEC 259; Australian Leisure & Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53; Blakeney v Mos111an Municipal Council [2013] NSWLEC 100.

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The right to appeal under s 97 against the consent authority's determination of an application for development consent can include an appeal against a decision to refuse consent or against conditions imposed. The right to appeal is not confined to the person or entity who signed the development application and extends to the principals of the person or entity on whose behalf the development application was made.B9 The time within which the appeal must be brought varies, in some instances being three months (revocation or modification of development consent) and, in others, six months (appeals against refusal of consent, or conditions, under s 97, and appeals in relation to applications to modify a development consent).90 The time for appeal runs from the date on which the applicant received notice, given in accordance with the regulations, of the determination of that application or review, or the date the application is deemed to have been refused. 91 The right to appeal under s 97 does not apply to a DA for designated development determined by the consent authority after a public hearing held by the PAC (s 97(7)).

Objecto r appeals A person who has made a submission in writing objecting to an application for designated development can appeal against a determination to grant consent (EPAA s 98). Such an appeal must be lodged within 28 days after notice of the decision is given. An objector is entitled to be heard at the hearing of any appeal brought by the applicant as if the person or body were a party to the appeal (s 97A(4)). The right to appeal under s 98 includes an appeal in relation to State significant development that would be designated 89

90

91

Betohuwisa Investments Pty Ltd v Kia111a Municipal Council [2010] NSWLEC 223. For a discussion of the power to amend where there has been an error in selection of the applicant, see Ryan v Coifs Harbour City Council [2014] NSWLEC 159. The period for an appeal under s 97 was reduced from 12 months to 6 months by the Planning Appeals Legislation Amendment Act 2010. However, the reduced appeal period does not apply in respect of any development application lodged with a consent authority before 28 February 2011: EPAA Sch 6 [132]. Iron/aw Pty Ltd v Wollondilly Shire Council (No 2) [2013] NSWLEC 146; Barca v Wollondilly Shire Council [2014] NSWLEC 118.

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development but for s 77A(2), unless there has been a public hearing held by the PAC (s 98(4), (5)).

Provision of public infrastructure Part 4 Div 6, Development Contributions, of the EPAA contains provisions for contribution of land or money for the provision of public infrastructure. Financial contributions in the form of a contribution of money or payment of a levy are contentious. The requirement for contributions is based on the policy position that beneficiaries of the provision of new infrastructure should make a contribution to that infrastructure; however, infrastructure levies can be a significant cost of providing serviced blocks of land for development, in particular for land zoned for residential development. In December 2008 the government announced changes to how infrastructure contributions are calculated, removing the cost of providing some infrastructure from the calculation of levies, deferring payment of certain levies to the point of transfer from the developer to the purchaser and imposing a cap of $20,000 per dwelling/lot. The present position is contained in a Direction under s 94E of the EPAA, made on 4 March 2011, imposing a cap of $20,000 per dwelling/lot for established areas, $30,000 for specified greenfield areas, and providing an exemption for areas where development applications have been lodged and remain valid as at 31 August 2010, for more than 25% of the expected yield from the development area or contributions plan.92

Part 4 Division 6 Development Contributions Part 4 Div 6 distinguishes between local infrastructure contributions (Pt 4 Div 6 Subdiv 3) and special infrastructure contributions (Pt 4 Div 6 Subdiv 4). Some of the provisions apply to consent authorities; others apply more broadly to any 'planning authority', which is defined in s 93C to mean a council, the Minister, the corporation sole constituted by the Minister, a development corporation within the meaning of the Growth Centres (Development Corporations) Act 1974, or a public authority declared by the regulations to be a planning authority. Contributions for infrastructure can take the form of a dedication of land, contribution of money or payment of a levy.

Local infrastructure contributions If the consent authority is satisfied that the development will or is likely to require the provision of, or increase the demand for, public amenities and public services within the area, the consent authority may impose a condition requiring the dedication of land or the payment of a monetary contribution, or both (s 94(1)). The dedication or contribution must be reasonable and can be for provision, extension or augmentation of public amenities or public services (s 94(2)). The public amenities and services are those provided in the local government area. 93 However, if there is a joint contributions plan (discussed below), a condition can be imposed wholly or partly for the benefit of an adjoining area (s 94C) and, with the approval of the Minister, for the provision of a public amenity or public service on land outside New South Wales (s 94CA). The 92 93

See Planning Circular PS 11-012, 15 March 2011. Parramatta City Council v Peterson (1987) 61 LGRA 286.

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term 'public amenities and public services' is not defined in the EPAA. The LEC has held that the phrase is to be interpreted broadly, to reflect the changes in services and amenities provided by local government over time. So long as a facility is operated or used for the benefit of the public, it will provide a public service or amenity. 94 This may include facilities such as council administrative offices, works depots and child-care centres.95 The public amenities and public services which can be funded through s 94 contributions ors 94A levies do not include water supply and sewerage services (s 93C). The consent authority can impose a condition requiring monetary contribution towards the recoupment of the costs of providing public amenities or public services if these have already been provided and the development will benefit from those amenities or services (s 94(3)). The contribution towards recoupment must be reasonable (s 94(4)). Calculation of such costs was for some time based on the actual money paid by the council at the time for the capital costs of carrying out the work, rather than by discounting the current cost or indexing the historical cost.96 Section 94(3) now allows the council to recover costs indexed in accordance with cl 251 of the EPAR, which is based on the CPI. The consent authority may accept dedication of land in part or full satisfaction of such a condition (s 94(5)(a)). The consent authority may accept the provision of a material public benefit in part or full satisfaction of a condition either for provision of public amenities or services, or to recoup the cost of such amenities or services already provided (s 94(5)(b)). If the applicant has already provided land, money or a material public benefit within the area or an adjoining area, the consent authority must take that into account (s 94(6)). The consent authority must have evidence to justify its prediction about future need for provision, or increased demand, for public amenities or public services.97 As an alternative to the provision of a monetary contribution or the dedication of land under s 94, the consent authority may require the applicant to pay a levy of a percentage of the proposed cost of carrying out the development (s 94A(l), (2)). The money paid in the form of a levy must be used for the provision, extension or augmentation of public amenities or public services, or to recoup the cost of amenities or services already provided (s 94A(3)). The maximum levy is 1% of the cost of the development for development estimated to cost $200,000 or more; higher levies may be payable for development in specified parts of Liverpool, Wollongong, Gosford, Parramatta, Newcastle, Burwood and Willoughby local government areas (EPAR cl 25K). Clause 25J of the EPAR sets out how the cost of the development is determined. The Minister has power under s 94E to direct a consent authority as to the public amenities or services in relation to which a condition may be imposed; the means of calculating a monetary contribution; the maximum amount of a monetary contribution; the things, or types of things, that may be accepted as a material public benefit; the type or area of development in respect of which a levy can be imposed under s 94A and the maximum percentage of the levy; and the use of monetary contributions or levies for purposes other than which they were paid (s 94E(l)).98 The consent authority must comply with such a direction and cannot impose a condition that is not in accordance 94 95 96 97 98

Stockland (Constructors) Pty Ltd v Shellharbour Council [1996] NSWLEC 123. Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502. Allsands Pty Ltd v S/walhaven City Council (1993) 78 LGERA 435. Lake Macquarie City Council v Hammersmith Management Pty Ltd (2003) 132 LGERA 225. The Direction current at time of writing was made on 4 March 2011: see Planning Circular PS 11-012, 15 March 2011.

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with the direction, even if that direction is contrary to the provisions of Pt 4 Div 6 or a contributions plan (s 94E(2), (3)). If the consent authority is a council, any conditions imposed under s 94 or 94A must be authorised by a contributions plan (s 94B(l)).99 Other consent authorities (for example, the Minister) can impose such a condition even if it is not authorised by a contributions plan, but they must have regard to any contributions plan before imposing the condition (s 94B(2)). On appeal, the LEC may disallow or amend a condition imposed under s 94 of the kind allowed by a contributions plan or a direction of the Minister because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan or direction (s 94B(3)).100 There is no similar power to disallow or amend a condition imposed under s 94A (s 94B(4)). A contributions plan may be made by a council alone or in conjunction with other councils (s 94EA(l)). The Minister can direct a council to approve, amend or repeal a contributions plan. If the council fails to act in accordance with such direction or, if the council consents, the Minister can make, amend or repeal a contributions plan (s 94EAA(2)). The aim of a contributions plan is to establish the relationship between expected types of development in the area to which the plan applies and the demand for public amenities and facilities to meet that development. The requirements for preparation and exhibition of a contributions plan and for public participation are in Pt 4 Div lC and Div 2 of the EPAR. The contributions plan must provide details of formulas to be used in calculating contributions, rates for different types of development, how the percentage of any s 94A levy is determined, council's policy on timing and deferral of payment, a map showing specific public amenities and services supported by a works schedule, and priorities for expenditure of contributions and levies (EPAR cl 27). The council must put a draft contributions plan on public exhibition, and consider any submissions received during the period of public exhibition when deciding whether to approve the plan, with or without amendments (ell 28, 29, 30, 31(1)). The council must give public notice of its decision in a local newspaper within 28 days, and the contributions plan comes into effect either on the date that notice is published or on a later date if specified in the notice (cl 31(2), (4)). If the council decides not to proceed with the contributions plan, it must give reasons for that decision in the notice (cl 31(3)). Since June 2010 the Independent Pricing and Regulatory Tribunal (!PART) has been involved in reviewing new contributions plans which propose a contribution level above the relevant cap, and those plans which propose a contribution level above the relevant cap for councils seeking priority infrastructure funding or a special variation to general income. The criteria used by IPART in assessing contributions plans are whether public amenities and public services are identified as 'essential works', which include land for open space or community services, land and facilities for transport or stormwater management, and the costs of plan preparation and administration; whether there is a nexus between development and the kinds of public amenities and public services identified in the plan; whether the contribution is based on a reasonable estimate of the cost of proposed public amenities and public services; whether the

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proposed public amenities and public services can be provided within a reasonable time; whether there is a reasonable apportionment between existing demand and new demand for proposed public amenities and public services; and whether the council has conducted appropriate community liaison and publicity.101 Following its assessment, IPART advises the Minister, who may request the council to make changes to its contributions plan before it comes into effect. Contributions made in accordance with a s 94 condition must be held by the council and applied for a public purpose, within a reasonable time (s 93E(l)).102 If the cost of providing the public amenities or services has increased by the time that the s 94 contributions are applied, the council is not required to construct all the public amenities and facilities identified in the contributions plan. Reduction or substitution of works for which contributions have been required must be authorised by amendment of the contributions plan.103 A consent authority can pool money paid as a contribution or levy and apply those funds progressively, subject to the provisions of any contributions plan or a ministerial direction (s 93E(2)). Land dedicated under a s 94 condition must be made available for the purpose for which the dedication was required within a reasonable time (s 93E(3)). There are specific provisions relating to provision of affordable housing. If the proposed development is in an area identified in a SEPP as having a need for affordable housing, the consent authority must consider whether the development will reduce the availability of affordable housing in the area, or will create a need for affordable housing in the area. If either applies, or the proposed development is allowed only because of the initial zoning of the site, the consent authority can impose a condition requiring the dedication of part of the land, or other land owned by the applicant, for the provision of affordable housing, or a condition requiring the payment of monetary contribution to be used for the purpose of providing affordable housing (s 94F(l), (2)). The condition must be authorised by an LEP and be in accordance with a scheme for dedications or contributions set out or adopted by such a plan (s 94F(3)(b)). SEPP 70 - Affordable Housing (Revised Schemes) identifies that there is a need for affordable housing in the City of Sydney, South Sydney, Willoughby and Leichhardt areas within the Greater Metropolitan Region. Section 4 of the EPAA defines 'affordable housing' as meaning housing for very low-income households, low-income households or moderate-income households. Clause 8 of SEPP 70 states that very low-income households are those whose gross income is less than 50% of the median household income for the Sydney Statistical Division according to the Australian Bureau of Statistics. Low-income households are those whose gross income falls within the range of 50 to 80%, and moderate-income households are those whose gross income falls within the range of 80 to 120% of median household income. The consent authority is required to consider the principles set out in Sch 2 to SEPP 70 before imposing such a condition (SEPP 70 cl 10). The dedication or contribution for affordable housing must be reasonable, having regard to the extent of the need in the area for affordable housing, the scale of the proposed development and any other dedication or contribution required under s 94 (s 94F(3)(c)). 101 102

99 100

Baulkhnm Hills Shire Council v Group Development Services Pty Ltd [2005] NSWCA 315. Rose Co11sulti11g Group v Baulk/Jam Hills Shire Council (2003) 129 LGERA 165.

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103

Department of Planning, Revised Local Development Contributions Practice Note for Assessment of Local Contributions Plans by IPART, February 2014. Confirming Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107; Levndetes v Hnwkesbury Shire Council (1988) 67 LGRA 190; Idnmeneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27. Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107.

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Special infrastructure contributions The Minister can determine the level and nature of development contributions to be imposed as conditions for provision of infrastructure, as defined in s 94ED: • provision, extension and augmentation of (or recouping the costs of) public amenities or public services, affordable housing and transport or other infrastructure; • funding of recurrent expenditure for such provision, extension or augmentation; • conservation or enhancement of the natural environment; and • the Minister, Department or Secretary carrying out research or investigation, preparing a report, study or instrument, or doing anything else in connection with the exercise of a statutory function under the EPAA, other than water supply or sewerage services. In determining the level and nature of such contributions, the Minister is, as far as reasonably practicable, to make the contribution reasonable having regard to the cost of the provision of infrastructure, and is to consult the Treasurer if the cost of the infrastructure exceeds $30 million (s 94EE). Part of such a contribution can be for the provision of infrastructure by a council (s 94EE(3A)); if so, it is to be provided to the council (s 94EE(3B)). The Minister can direct a consent authority, in relation to development or class of development on land within a special contributions area, to impose a condition on a grant of development consent, which is in addition to any condition that the consent authority could impose under s 94 or s 94A (s 94EF). Special contributions areas are listed in Sch SA to the EPAA, and include land in the Western Sydney Growth Areas, and specified land in Wyong and Warnervale. There is no right of appeal in respect of a direction of the Minister or a condition imposed under s 94EF (s 94EF(6)). Monetary contributions, and the proceeds of sale of any land dedicated, under Subdiv 4 are held in a separate fund, called the Special Contributions Areas Infrastructure Fund. Payments from this fund can only be made for provision of infrastructure by public authorities, to meet administrative expenses, or as authorised by the EPAA or regulations (s 94EL).

Contributions through planning agreements As an alternative to the imposition of conditions under s 94 or s 94A, contributions can be made by the developer for public purposes through a planning agreement. A planning agreement is a voluntary agreement entered into by one or more planning authorities and a developer who is seeking either a change in an EPI or who has made or is making a development application (s 93F(l)). A consent authority can require a planning agreement to be entered into as a condition of a development consent if the planning agreement is in the terms of an offer made by the developer in connection with the development application or a change in an EPI sought by the developer. However, the consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the proposed development or that the developer has not offered to enter into such an agreement (s 931(2), (3)). Under a planning agreement the developer may be required to dedicate land free of cost, pay a monetary contribution, or provide any other material public benefit, or any combination of them, to be used for or applied towards a public purpose. A public

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purpose includes the provision, or the recovery of the costs, of public amenities or public services, affordable housing, transport or other infrastructure relating to land, the funding of recurrent expenditure relating to the provision of public amenities or public services, affordable housing or transport or other infrastructure, the monitoring of the planning impacts of development, or the conservation or enhancement of the natural environment (s 93F(2)). There need be no connection between the development and the object of expenditure of any money required to be paid by a provision in a planning agreement (s 93F(4)). A planning agreement may exclude the application of s 94 or 94A to the development, or may state whether the contribution under the planning agreement is to be taken into consideration under s 94(6) (s 93F(5), (6)). A planning agreement cannot exclude the application of s 94 or 94A unless the consent authority for the development or the Minister is a party to the agreement (s 93F(3A)). A planning agreement may be registered by agreement of any person with an interest in the land and, if it is registered, is binding and enforceable on subsequent owners of the land (s 93H).104 The planning authority must ensure that public notice is given of a proposed planning agreement, or an agreement to amend or revoke a planning agreement, in connection with a development application (EPAR cl 25D), with a written statement that summarises the objectives, nature and effect of the proposed agreement and that contains an assessment of the merits of the proposed agreement (cl 25E). As well, planning agreements are to be available for public inspection (ell 25F, 25G, 25H).

State and regional development A new regime for determining major projects and infrastructure at State government level came into operation on 1 October 2011. The repeal of the former regime - Pt 3A of the EPAA - was a key election promise of the Liberal-National government which took office in March 2011 and the first step in a comprehensive review of the planning system in New South Wales. In introducing the Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011, the Minister for Planning and Infrastructure described this first step as an interim but necessary measure to rebuild confidence in the planning system and correct the balance between decisions that should be made by local communities and those that are genuinely of State significance.105 As discussed in Chapter 3, the reform process stalled in 2013. Important changes brought about by the new regime include the removal of retail, commercial and residential projects from the categories of development determined at State government level and the reinstatement of Pt 4 as the regime for assessing State significant development (but not State significant infrastructure). In implementing the new regime, the Minister has scaled back the extent of State-level assessment and, through extensive delegations to the Planning Assessment Commission and the Department, distanced the Minister from determination of major projects. While these changes are substantial, it needs to be recognised that several of the powers conferred on the Minister by the former Pt 3A regime have been retained under the new regime, as has the call-in power that has long existed under the EPAA. Further, large-scale retail, 104 105

Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378. Parliament of New South Wales, Hansard (Legislative Assembly, 16 June 2011) p 2592 (Brad Hazzard, Minister for Planning and Infrastructure).

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commercial, residential and coastal developments are not determined by the relevant local council but by joint regional planning panels. Under the new regime, development that may be identified for determination at State government level is referred to as 'State significant development', the term used in the EPAA before the introduction of the former Pt 3A. The development consent procedure is in Pt 4. A new Pt 5.1 provides the approval process for 'State significant infrastructure' and 'critical State significant infrastructure'. Before outlining the processes for assessment and determination of State significant development and infrastructure, the roles of the Planning Assessment Commission and joint regional planning panels need to be explained.

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The PAC can only conduct a public hearing if requested to do so by the Minister (s 230, EPAR cl 268R). If a public hearing is held, there is no appeal against the Commission's decision (s 23F). Appeal rights are not lost where the PAC holds a public briefing or otherwise opens its meetings to the public. In introducing the Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011, the Minister for Planning and Infrastructure signalled more resources for the PAC, more transparency and public participation in the exercise of its functions, and an increase in public meetings in rural and regional New South Wales where there is a significant community interest in a proposal.107

Joint regional planning panels Planning Assessment Commission The Minister is the consent authority for State significant development under Pt 4 and the approval authority for State significant infrastructure under Pt 5.1 of the EPAA. The Minister may delegate this function (s 23), except the function of determining an application to carry out critical State significant infrastructure (s 23(8)(a2)). One of the bodies to whom the Minister may delegate functions is the Planning Assessment Commission (PAC). The PAC was established in 2008, charged with a variety of roles, including to review project and infrastructure proposals and to provide policy advice to the Minister (s 230). An important intention in establishing the PAC was to facilitate the delegation to it of the Minister's function of determining certain Pt 3A projects and concept plans. The establishment of the PAC came amid perceptions of conflicts of interest arising from political donations by property developers to the Labor Party, which was then in government. The limited delegations to the PAC under Pt 3A sought to meet that concern. Since October 2011, the delegation of functions to the PAC has been far more extensive.106 In particular, the PAC has been delegated the functions of determining major project applications and modifications under Pts 4 and 5.1 submitted by private proponents where there have been 25 or more objections to the application, or the local council has objected, or there has been a reportable political donation (s 147) in connection with the application. Where there are fewer than 25 objections and the proposal has local council consent, the function of determining major project applications has been delegated to the Department. The Chairperson and members of the PAC are appointed by the Minister, on a full-time or part-time basis, or as a casual member for a specific purpose (EPAA Sch 3 Pt 2). The chairperson may be removed from office by the Minister (Sch 3 cl 10). For the purpose of carrying out any of its functions, the PAC is constituted by three members (Sch 3 cl 4). Although the EPAA provides that the PAC is not subject to the direction or control of the Minister, there are exceptions (s 23B(3)). The Minister may direct that the PAC is to be constituted by specified members (Sch 3 cl 4) or a specified number of members (EPAR cl 268P). The Commission does not enjoy autonomy over its procedures (ss 23B(3), 23E). Various features of the PAC raise concern about its independence or perceived independence. In 2011, in order to enhance its independence, the EPAA was amended to provide that a member may not hold office for more than six years in total (Sch 3 cl 5(3)).

Large-scale projects, not being State significant development or State significant infrastructure, are determined by joint regional planning panels. As a consequence of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011, regional panels have become responsible for determining those residential, commercial, retail and coastal projects that were previously dealt with as Pt 3A projects. At the same time, development applications having a capital investment value of between $10 million to $20 million, previously determined by regional panels, have been returned to councils for determination. Panels are constituted by the Minister on a regional basis (s 23G). Amongst its other functions, a panel acts in the place of the local council as consent authority for Pt 4 development where that is provided for in an EPI and the development requires consent but is not State significant development (s 23G(2), Sch 4A cl 2). EPis can only confer this function on a regional panel if the development falls within a class or description of development set out in Sch 4A (s 23G(2A)). Generally, this is development having a capital investment value of more than $20 million (Sch 4A cl 3).108 Other classes of development included in Sch 4A are: • development that has a capital investment value of more than $5 million and the council is the applicant or owner of the land, or related to the development in other respects; • Crown development over $5 million; • private infrastructure and community facilities over $5 million; • eco-tourist facilities over $5 million; • development for the purposes of specified classes of designated development (extractive industries, marinas and waste management facilities); • specified coastal subdivision; • development over $10 million that has not been determined by the council within 120 days after the application (unless the chair of the regional panel considers the delay was caused by the applicant); • development in a local government area where the Minister is satisfied that the council's performance has not met applicable performance criteria. (Sch 4A cll 4-11) 107 108

106

See the website of the Department of Planning and Environment, with links to the instruments of delegation, (accessed 1 November 2015).

Parliament of New South Wales, Hansard (Legislative Assembly, 16 June 2011) p 2592 (Brad Hazzard, Minister for Planning and Infrastructure). Capital investment value is a jurisdictional fact which in judicial review proceedings the LEC can determine de nova: Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 (affirmed on appeal in Calnrdu Penrith Pty Ltd v Penrith City Council (2010) 174 LGERA 446). See also Haxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2015] NSWLEC 125.

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Regional panels are constituted by five members - three appointed by the Minister and two council nominees (Sch 4 cl 2). A panel is not subject to the direction or control of the Minister, except in relation to their procedures (s 23G(4)). However, members can be removed from office for any or no reason (Sch 4 cl 9(3), (4)). One of the State members is appointed by the Minister as chairperson. The Minister is ordinarily required to obtain the concurrence of the Local Government and Shires Association to the appointment, but not if the Association refuses to concur in two different persons proposed for appointment (EPAA Sch 4 cl 2(2)). Council assessment officers remain responsible for assessing the development application (SEPP (State and Regional Development) 2011 (the SRD SEPP) cl 21(2)(e)), thereby providing the Panel with local input.109 Councils are responsible for the remuneration, costs and expenses of regional panels (s 230).

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State significant development: call-in power In addition to the power to declare State significant development by class or description, the Minister has the power to declare specified development on specified land to be State significant development (s 89C(3); see also EPAR cl 124F). This call-in power can only be exercised if the Minister has obtained, and made publicly available, advice from the PAC about the State or regional planning significance of the development. In introducing the Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011, the Minister for Planning and Infrastructure tabled in Parliament a policy statement on the use of the call-in power.110 The policy statement identifies inclusively the following factors as being relevant to State or regional planning significance:111 • whether the proposal delivers significant public benefits for the State or regional communities, including those that directly relate to actions and goals in State or regional strategies and plans (including the State Infrastructure Strategy and projects endorsed by Infrastructure NSW); • whether the proposal is complex, contentious or environmentally hazardous and local authorities have requested or require State assistance; or • whether the proposal is a precinct-scale or linear project that crosses over multiple local government areas or other jurisdiction boundaries, and requires co-ordinated assessment.

State significant development A SEPP may declare any development, or any class or description of development, to be State significant development (s 89C(2)). The SRD SEPP came into effect on 1 October 2011, the date on which Pt 3A was repealed. It applies State-wide and declares a range of development to be State significant development (Schs 1 and 2) provided the development requires consent under an EPI (cl 8(1)). Development does not require consent merely because it is declared State significant development under the SRD SEPP. If part of a single proposal requires development consent and the other part does not, that other part is taken to require consent (s 89E(4)). If a single proposed development comprises development that is only partly State significant development, the remainder of the development is also State significant development, except to the extent that the Director-General determines it is not sufficiently related to the State significant development (cl 8(2)). Schedule 1 to the SRD SEPP lists classes of State significant development, including, for example: large-scale mining, resource and primary industry projects; chemical and manufacturing industries; and cultural, recreation and tourist facilities. Major social infrastructure projects are listed, such as hospitals, educational establishments and correctional centres. Included also are some infrastructure projects over $30 million, such as port, rail and air transport facilities; electricity generating works; and water supply, sewage and wastewater treatment plants. If a development falls within a class of State significant development and a class of State significant infrastructure, declared under a SEPP, the development must be assessed as State significant development under Pt 4 (s 115U(6)). However, if a specific State significant development is declared by the Minister to be State significant infrastructure, it is dealt with as State significant infrastructure under Pt 5.1 (s 115U(7)). Thresholds used in the SRD SEPP include capital investment value (usually $30 million), output and sometimes location. In contrast to the former Pt 3A regime, financial thresholds have been increased significantly. This, together with the removal of certain classes of development - residential, commercial, retail, coastal and marina development - has substantially reduced the number of development proposals that are processed as State significant development under the new regime. Schedule 2 to the SRD SEPP lists specific sites as State significant development, including, for example, the Sydney Opera House and Barangaroo.

The Minister can grant consent to partly prohibited development, but cannot consent to development that is wholly prohibited by an EPI (s 89E(2), (3)).112 Where development is wholly or partly prohibited, a development application may be considered in conjunction with a proposed EPI to permit the development (s 89E(5), Pt 3 Div 4B). The Secretary of the Department of Planning becomes the relevant planning authority under Pt 3 (s 89E(5)). If the gateway determination under s 56 declares that the proposed LEP is principally concerned with permitting State significant development that is wholly prohibited, only the PAC can make the proposed LEP and determine the development application (s 89E(6)).

Assessment and public participation A development application for State significant development must be accompanied by an EIS prepared by or on behalf of the applicant in the form prescribed by the regulations (s 78A(8A)). The regulations prescribe the same EIS requirements for State significant development, designated development and activities requiring an EIS under Pt 5 (EPAR Sch 2 cl 2). This stands in contrast to the former Pt 3A regime. The EIS process is described in Chapter 5. 110 111

112 109

See Amalgamated Holdings Ltd v North Sydney Council [2012] NSWLEC 138 at [27]-[29].

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Parliament of New South Wales, Hansard (Legislative Assembly, 16 June 2011) p 2592 (Brad Hazzard, Minister for Planning and Infrastructure). NSW Department of Planning and Infrastructure, 'Policy Statement: Environmental Planning and Assessment Amendment (Part 3A Repeal) Bill 2011, Ministerial 'call in' for State significant development' CTune 2011), (accessed 1 November 2015). See further the Minister's guidelines to the PAC: 'Guideline on 'call-in' of State significant development under the Environmental Planning & Assessment Act 1979' (undated), (accessed 1 November 2015). See Dean v Minister for Planning and Andros Australia Pty Ltd [2007] NSWLEC 779 (interpreting the now repealed Pt 3A as originally enacted).

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State significant development applications are subject to a mandatory minimum 30-day public exhibition period (EPAA s 89F(l), EPAR cl 83).113 Objections must be in writing and set out the grounds of the objection (EPAA s 89F(3)). The Secretary must forward submissions, or a summary of the submissions, to the applicant and may require the applicant to provide a written response to such issues raised in those submissions as the Secretary considers necessary (EPAR cl 85A). If the development application is amended, substituted or replaced before determination, the EPAA provides that re-exhibition is not required unless the Secretary decides that the application substantially differs from the original application and the environmental impact has not been reduced by the proposed changes (s 89F(4)). The Department is required to publish on its website State significant development applications and accompanying documents, environmental assessment requirements, public submissions, any development consent or modification to a consent, and other related information and reports (EPAR cl 85B). Determination The Minister is the consent authority for State significant development (EPAA s 89D(l)). The Minister may delegate the consent authority function to the PAC, the Secretary or to any other public authority (s 23). Delegations of this function to the PAC and the Department were outlined earlier in this section (p 126). If a staged development application is made in respect of State significant development, the Minister may decide that a subsequent stage of the development is to be determined by the relevant council, in which case the development ceases to be State significant development (s 89D(2)). An application for State significant development, like any Pt 4 development application, is evaluated in accordance withs 79C (EPAA s 89H). This is in contrast to the relatively unstructured discretion exercised under the former Pt 3A. It will ensure that the Minister has regard to planning controls in the LEP. However, development control plans do not apply to State significant development or to any subsequent stages of the development determined by a council under s 89D(2) (SRD SEPP cl 11). The Minister's discretion is structured by a large body of case law interpreting s 79C, as discussed earlier in this chapter (pp 104-108). Importantly, the requirement to have regard to the public interest imports consideration of ESD principles,114 thus removing any doubt that existed in relation to evaluating projects under the former Pt 3A.115 Additional 113 114

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With respect to the duty to make documents publicly available, see Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd [2013] NSWCA 45 at [44]-[45], [49]-[51] and [55]. In determining projects under the now repealed Pt 3A, the LEC required ESD to be considered, albeit at a high level of generality: Kennedy v NSW Minister for Planning [2010] NSWLEC 240; BarringtonGloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113; Pittwater Council v Minister for Planning [2011] NSWLEC 162; Williams v Minister for Planning (No 2) [2011] NSWLEC 62; Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33. See also Hunter Environment Lobby Inc v Minister for Planning [2011] NSWLEC 221 at [21] (objector appeal). See Minister for Planning v Walker (2008) 161 LGERA 423 where the Court of Appeal held that that the Minister is not required to consider ESD principles as an aspect of the public interest when determining an application for approval of a concept plan under the now repealed Pt 3A; but see Kennedy v NSW Minister for Planning [2010] NSWLEC 240 at [77] per Biscoe J; Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113 at [170]-[171] per Pepper J. The Court of Appeal in Walker's case did approve the line of authority in the LEC which requires consent authorities to have regard to the principles of ESD, as an aspect of the public interest, when determining development applications under Pt 4 s 79C (at [42]-[43]).

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considerations arise where the PAC has conducted a review of proposed State significant development. The Minister must consider the findings and recommendations of the PAC (s 80(7)). An application for State significant development may be granted with such modifications of the proposed development or on such conditions as the Minister may determine (s 89E(l)). The power to impose conditions is not constrained to the same extent as the more general power under Pt 4 to condition development consent. The Pt 3A power was flexibly interpreted by the LEC, given the power of modification and given that Pt 3A projects and infrastructure are often complex, extensive and multi-staged.116 The practical need for flexibility applies equally to State significant development and infrastructure under the current regime.117 The power must nevertheless be exercised for a purpose consistent with the scope and purpose of Pt 3A; conditions must fairly and reasonably relate to the proposal; and the parameters of what has been approved must be sufficiently defined.118 In the context of approving proposed State significant infrastructure, where the Minister has a similar power, the power to modify the proposal has been held to permit the Minister to approve something different from what is proposed as long as the difference does not amount to its wholesale rejection and replacement or its radical transformation.119 Later modification is, like other Pt 4 developments, governed by s 96 of the EPAA. Thus the Minister must be satisfied that the development as modified would be substantially the same development as originally approved (s 96(2)). The general rules in Pt 4 governing the lapsing of development consent (s 95) also apply to State significant development. Conditions requiring offsets to compensate for loss of biodiversity are common and call for close scrutiny given that many State significant developments will result in extensive environmental impacts. The LEC in its merits appeal jurisdiction has demonstrated its concern to ensure a principled approach to avoiding, mitigating and offsetting biodiversity impacts.120 This has not been without controversy.121 In response, the OEH has developed a biodiversity offsets policy for major projects, which commenced on 1 October 2014.122 The Policy anticipates that it will be put on a statutory basis following an 18-month period of administrative implementation, using environmental assessment requirements. This could lead to a statutory requirement that applications 116

117 118 119 120

121 122

Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185 at [74]-[75]; Pittwater Council v Minister for Plannmg [2011] NSWLEC 162 at (69]; Hunter Environment Lobby Inc v Minister for Planning (2011] NSWLEC 221 at [87]-[89] (objector appeal); Coffs Harbour City Council v Minister for Planning and Infrastructure [2012] NSWLEC 4 at [169]; Barrington-Gloucester-Stroud Preservation Alliance Inc v Minister for Planning and Infrastructure (2012) 194 LGERA 113 at [82)-(85]; Kennedy v Stockland Developments Pty Ltd (No 7) [2012] NSWLEC 257 at [72]; Botany Bay City Council v Minister for Planning and Infrastructure (2015] NSWLEC 12 at [159]. Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services [2015] NSWLEC 167 at [69] per Brereton AJ. Ibid at [73]-[74]. Ibid at [59]. See esp Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mznzng Lnmted [2013] NSWLEC 48 at [65]; upheld on appeal: Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014] NSWCA 105 at [296]. For background and current initiatives, see V Walsh, 'The future of Land and Environment Court oversight of major project offsets' (2014) 31 EPLJ 397. NSW Office of Environment and Heritage, NSW Biodiversity Offsets Policy for Major Projects (OEH, 2014), (accessed 1 November 2015).

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for State significant development and State significant infrastructure be accompanied by a biodiversity assessment report and offset strategy, prepared by an accredited ecological consultant in accordance with the Policy and accompanying Framework for Biodiversity Assessment.123 The Minister has a discretion to condition consent on a requirement that the applicant acquire and retire biodiversity credits, whether or not a biobanking statement has been obtained (s 891(1)). If a biobanking statement was obtained and the Minister conditions consent on compliance with any of its conditions, the condition is not appealable (s 891(4), (5)). The Minister may also agree to a deferred retirement arrangement which is then deemed to have been approved under Pt 7A Div 7 of the Threatened Species Conservation Act 1995 (EPAA s 891(2), (3)).

Section 89K of the EPAA specifies a range of approvals that cannot be refused if the approval is necessary for carrying out State significant development for which consent has been granted or for any investigative or other activities that are required to be carried out for the purpose of complying with environmental assessment requirements.125 Further, the approval must be substantially consistent with the development consent. The regulator's discretion is restored when an application is made for a renewal or further authorisation, or in the case of an environment protection licence under the Protection of the Environment Operations Act 1997 (PEOA) after the first review of the licence under s 78 of that Act (EPAA s 89K(2)). The specified approvals, which must be granted and must be consistent with development consent for State significant development, are: • • • • •

an aquaculture permit under s 144 of Fisheries Management Act 1994; an approval under s 15 of the Mine Subsidence Compensation Act 1961; a mining lease under the Mining Act 1992; a production lease under the Petroleum (Onshore) Act 1991; an environment protection licence under Ch 3 of the PEOA (for any of the purposes referred to in s 43 of that Act); • a consent under s 138 of the Roads Act 1993; • a licence under the Pipelines Act 1967. (EPAA s 89K(1))

Approvals, consultation and concurrence The new regime relating to State significant development carries over the provisions from the repealed Pt 3A relating to approvals, consultation and concurrence under the EPAA and other legislation, thereby limiting the role of other government agencies in regulating the development. Some approvals are not required, others cannot be refused and must be consistent with any consent granted by the Planning Minister, and separate consultation or concurrence is not required. Section 79B provides that any requirement for consultation or concurrence in an EPl does not apply to State significant development unless the EPl specifies that it applies. Nor do the requirements in that section relating to threatened species consultation apply to State significant development (s 79B(2A)). Section 89J(1) provides that the following authorisations are not required for State significant development: • concurrence under Pt 3 of the Coastal Protection Act 1979 of the Minister administering that Part of that Act; • a permit under ss 201,205 or 219 of the Fisheries Management Act 1994; • an approval under Pt 4, or an excavation permit under s 139, of the Heritage Act 1977; • an Aboriginal heritage impact permit under s 90 of the National Parks and Wildlife Act 1974;

• an authorisation referred to ins 12 of the Native Vegetation Act 2003 (or under any Act repealed by that Act) to clear native vegetation or State protected land; • a bushfire safety authority under s 100B of the Rural Fires Act 1997; • a water use approval under s 89, a water management work approval under s 90, or an activity approval (other than an aquifer interference approval) under s 91 of the Water Management Act 2000.

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Despite s 89K(1), mining and petroleum production leases can be refused on the ground that the applicant is not a fit and proper person (Mining Act 1992 s 380A; Petroleum (Onshore) Act 1991 s 24A).

Other regulatory powers A further restriction on regulatory powers is that a stop-work order under s 136 of the Heritage Act 1977, to prevent harm to buildings, works, relics or places, cannot be made so as to prevent or interfere with the carrying out of State significant development (EPAA s 89J(2)). Under the now repealed Pt 3A there were additional restrictions which, under the new regime, have been lifted. Thus there is no restriction on issuing stop-work orders under the National Parks and Wildlife Act 1974 or the Threatened Species Conservation Act 1995, and no restriction on issuing environment protection notices under the PEOA. These restrictions have been continued only for State significant infrastructure.

Appeals

The requirement to obtain a separate approval for aquifer interference activities was inserted into the Bill during its passage through Parliament following representations from the NSW Farmers Association. Other approvals and authorisations must be sought,124 but in respect of some the regulator's discretion is fettered until the first renewal or review of the approval.

The determination of an application for State significant development can be appealed by the applicant or an objector in the same circumstances as other Pt 4 development (EPAA ss 97, 98). Appeal rights were discussed earlier in this chapter. An objector has a right of appeal on the merits against the grant of consent to State significant development where that development would otherwise be classified as designated development (s 98(4)). However, the general rule that the operation of a consent is suspended pending an objector appeal (s 83(1), (2)) does not apply to State significant development that would otherwise be designated development (s 83(4A)). This amendment to s 83 was made

123 124

125

See Walsh, above n 121, at 410. Note also that, under the National Parks and Wildlife A ct 1974, it is a defence to a prosecution relating to harming native fauna, threatened species, habitat and reserved land that the act was essential for carrying out development in accordance with development consent or an approval under the EPAA: National Parks and Wildlife Act 1974 ss 98(5), 118A(3), 118C(5), 118D(2), 156A(2).

In Ulan Coal Mines v Minister for Mineral Resources [2008] NSWCA 174 at [15], [17], [19] the view was expressed that, where the exercise of discretion to refuse an authorisation is precluded, procedures (such as public consultation) directed to matters relevant to the exercise of that discretion cannot be considered mandatory.

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following representations by the NSW Minerals Council. If development consent for State significant development is refused by the LEC on appeal, any development consent that was granted ceases to have effect on the determination of the appeal (s 83(4A)). Neither the applicant nor an objector has a right of appeal if the application was determined after a public hearing held by the PAC (ss 23F, 97(7), 98(5)).

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reserved under the National Parks and Wildlife Act 1974. The SRD SEPP also declares as State significant infrastructure activities for which the proponent (other than a council) is also the determining authority and which would, in the opinion of the proponent, otherwise require an EIS to be obtained under Pt 5.

State significant infrastructure: call-in power Judicial review and civil enforcement Unlike the former Pt 3A regime, the EPAA with respect to State significant development does not attempt to curtail the right of any person under s 123 to apply to the LEC, in its civil jurisdiction, for an order to remedy or restrain a breach of the Act, an EPI or development consent. Proceedings under s 123 include judicial review of the legality of government decisions and proceedings to remedy or restrain other breaches of the legislation.

Overriding the constraints imposed on what may be declared State significant infrastructure, the Minister has a power to call in particular development. The Minister may declare, by SEPP or by an order amending a SEPP, specified development on specified land to be State significant infrastructure (s 115U(4)). None of the constraints applying to a s 115U(2) declaration applies and, if the development is also State significant development, it becomes State significant infrastructure (s 115U(7)). The PAC or Infrastructure NSW may recommend to the Minister that the declaration be made (s 115U(5)).

State significant infrastructure

Critical State significant infrastructure

A new Pt 5.1 of the EPAA deals with the assessment and approval of State significant infrastructure. The Minister's approval is required for State significant infrastructure (s 115W). A SEPP may declare any development, or any class or description of development, to be State significant infrastructure (s 115U(2)). However, development can only be so declared if a SEPP permits the development without the need for consent under Pt 4 and the development is either:

Any State significant infrastructure may be declared to be critical State significant infrastructure. The Minister must be of the opinion that the infrastructure is of a category that is essential for the State for economic, environmental or social reasons (s 115V). This is similar to the critical infrastructure provision under the former Pt 3A. However, in contrast to the use of Pt 3A, declarations of critical State significant infrastructure have been limited to road and rail infrastructure projects (SRD SEPP cl 16, Sch 5). Power stations, wind farms and biodiesel projects are no longer listed as critical infrastructure. Additional provisions apply to critical State significant infrastructure. First, the Minister cannot delegate the function of determining an application for approval to carry out critical State significant infrastructure (s 23(8)(a2)). Second, a range of directions, orders and notices cannot be made or given so as to prevent or interfere with the carrying out of approved critical State significant infrastructure (ss 115ZF(4), 115ZG(3)). These are outlined below. Third, only the Minister can bring civil enforcement proceedings (or approve proceedings brought by a third party) to remedy or restrain a breach of the conditions of a Pt 5.1 approval for critical State significant infrastructure (s 115ZK(2)). This and other attempts to restrict the civil jurisdiction of the LEC are discussed more fully below.

• infrastructure; or • an activity for which the proponent (other than a council) is also the determining authority and which would, in the opinion of the proponent, otherwise require an EIS to be obtained under Pt 5 (s 115U(3)). Thus the requirement to obtain the Minister's approval provides a layer of external scrutiny where public authorities approve their own activities. An important SEPP which permits development without consent is SEPP (Infrastructure) 2007. If a development meets the description of a class of State significant infrastructure and also a class of State significant development declared under a SEPP, the development is to be assessed as State significant development under Pt 4 (s 115U(6)). The definition of 'infrastructure' is circular. It is defined as meaning development for the purposes of infrastructure, followed by a list of types of physical infrastructure expressed to be 'without limitation' (s 115T). The Regulation adds to this by providing that, if a single proposed development comprises development that is only partly infrastructure, the remainder of the development (for whatever purposes) is also infrastructure (EPAR cl 191(2)). Pursuant to s 115U(2), the SRD SEPP declares a range of development to be State significant infrastructure, provided the development is permissible without consent under a SEPP (SRD SEPP cl 14(1), Sch 3). If a single proposed development comprises development that is only partly State significant infrastructure, the remainder of the development becomes State significant infrastructure permissible without consent (SRD SEPP cl 14(2)). Included in the Schedule of State significant infrastructure are: major port and wharf or boating facilities; rail infrastructure; water storage or treatment facilities; pipelines; submarine telecommunications cables; and certain development in land

Staged infrastructure A 'staged infrastructure application' may be made which sets out concept proposals for the proposed infrastructure, and for which detailed proposals for separate parts of the infrastructure are to be the subject of subsequent applications for approval (s 115ZD). An approval granted to a staged infrastructure application does not have any effect to the extent that it is inconsistent with the determination of any further application for approval in respect of that infrastructure (s 115ZE(2)).

Environmental assessment and public participation When an application is made for the Minister's approval for State significant infrastructure, the Secretary must prepare environmental assessment requirements (s 115Y(l)). It is expressly provided that the requirements must include preparation of an EIS by or on behalf of the proponent in the form approved by the Secretary (s 115Y(2)). The

136

Regulations provide a common format for EISs relating to designated development, State significant development, State significant infrastructure and Pt 5 activities (EPAR Sch 2 Pt 3). This restores the consistency and structured approach to environmental impact assessment that existed before the now repealed Pt 3A. In preparing the environmental assessment requirements, the Secretary must consult relevant public authorities and have regard to the need for the requirements to assess any key issues raised by those public authorities (s 115Y(3)). The Secretary may require the proponent to submit a revised EIS (s 115Z(2)). The EIS must be publicly exhibited for at least 30 days (s 115Z(3)). The Secretary may require the proponent to respond to any submissions (s 115Z(3)) and prepare a preferred infrastructure report that outlines any proposed changes to the State significant infrastructure to minimise its environmental impact or to deal with any other issue raised during the assessment of the application (s 115Z(6)). If the Secretary considers that significant changes are proposed, the Secretary may make the preferred infrastructure report available to the public (s 115Z(7)). Various documents must be made publicly available on the Department's website, including the environmental assessment requirements, the EIS, submissions and environmental assessment reports of the Secretary, any advice, recommendations or reports received from the PAC, the approval and any modifications (s 115ZL(l), EPAR cl 196).

Determination The Minister's approval is required to carry out State significant infrastructure (s 115W). Delegations of this function to the PAC and the Department were outlined earlier in this section (p 126). If the application is for critical State significant infrastructure, the Minister cannot delegate the function of determining the application (s 23(8)). Before determination of the application, the Secretary must prepare a report to the Minister, which must include the EIS, any preferred infrastructure report, any advice provided by public authorities, any report or advice of the PAC, and any environmental assessment undertaken by the Secretary (s 115ZA). The Minister must take into consideration: the Secretary's report and the reports, advice and recommendations contained in the report; any advice provided by the Minister having portfolio responsibility for the proponent; and any findings or recommendations of the PAC following a review of the State significant infrastructure (s 115ZB(2)). In interpreting the former Pt 3A, the Court of Appeal held that no implication is to be drawn from the statute that the decision-maker must give primary importance to the Secretary's report and recommendation.126 These statutory matters do not exhaust relevant matters that must be considered. Clearly those impacts of the proposal which constitute the very reason why the Minister's approval under Pt 5.1 is required must be considered.127 Undoubtedly the Minister must have regard to the public interest.128 While the requirement to have regard to the public interest is confined by the subject-matter, purpose and scope of the Act, it typically operates at a high level of generality importing a discretionary value judgement.129 Community responses to an infrastructure proposal will be relevant to the public interest where those responses reflect more than an unjustified fear or 126 127 128 129

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Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014] NSWCA 105 at (230)-(235]. Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services [2015] NSWLEC 167 at (104]. Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014] NSWCA 105 at (299]; Minister for Planning v Walker (2008) 161 LGERA 423 at (39] per Hodgson JA (Campbell and Bell JJA agreeing). Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at (299].

137

concern.130 Under the now repealed Pt 3A, the LEC consistently accepted, and the Court of Appeal agreed,131 that the principles of ESD are embedded in the public interest and thus of relevance to most decisions under that Part where there exists some material environmental issue, risk or consequence, actual or potential.132 This would include a determination of a staged infrastructure application which sets out only a concept proposal.133 The application may be approved by the Minister with modifications and on conditions (s 115ZB(3); see also s 115ZL(3), (5)). As previously discussed in relation to State significant development, the power to impose conditions is not as constrained as the power to condition development consent under Pt 4 (seep 131). Given the power to modify the proposal and given that infrastructure projects are often complex, extensive and multi-staged, considerable generality and flexibility are permissible in describing the proposal submitted for approval and in the terms of the approval given to the proposal.134 Certainty is required in the sense that the approval must sufficiently define what has been approved so that the boundary between what is permissible and what remains prohibited can be discerned_l35 Conditions or modifications may be expressed in terms of an outcome or an objective.136 The LEC has held that the power to modify the proposal permits 'approval of something different from what is proposed, so long as the differences do not amount to its wholesale rejection and replacement or its radical transformation'.137 Modifications must be made as part of the process of approval. The view has been expressed that a condition which has the effect that, after approval, the proposed infrastructure might, as a result of the later decision of a subordinate official, be modified would be invalid; and this is so even if the later decision did not effect a radical transformation.138 As previously discussed, OEH has developed a biodiversity offsets policy for major projects, which commenced on 1 October 2014.139 Thus conditions requiring offsets to compensate for loss of biodiversity should be guided by this policy. As with State significant development, the Minister has a discretion to condition consent on a requirement that the applicant acquire and retire biodiversity credits, whether or not a biobanking statement has been obtained (s 115ZC). There is a broad power to modify the approval later at the request of the proponent (s 115ZI). Environmental assessment is at the discretion of the Secretary (s 115ZI(3)). The 130

131 132

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48 at [65]; upheld on appeal: Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc (2014] NSWCA 105 at (296]. Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [296]. Australians for Sustainable Development Inc v Minister for Planning [2011] NSWLEC 33 at [239]-[244] per Biscoe J.

133

Kennedy v NSW Minister for Planning (2010] NSWLEC 240 at [77] per Biscoe J; Haughton v Minister for Planning and Macquarie Generation; Haughton v Minister for Planning and TRUenergy Pty Ltd [2011]

134

Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services [2015] NSWLEC 167 at (14],

135 136 137 138 139

[64]-[68] per Brereton AJ. Similar latitude was afforded in the context of the now repealed Pt 3A; see above, n 116. Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services [2015] NSWLEC 167 at (73]. Ibid at [73]. Ibid at [59]. Ibid at (60]. NSW Office of Environment and Heritage, NSW Biodiversity Offsets Policy for Major Projects (OEH, 2014), (accessed 1 November 2015).

NSWLEC 217 at [146] per Craig J.

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138

factual assessment as to whether the proposal falls within the meaning of 'modification' is for the Minister and not a reviewing court.140 There is no express requirement, as there 141 is in Pt 4, that the activity as modified be substantially the same as originally approved. For the purpose of s 115ZI, modification means changing the terms of the approval, including revoking or varying a condition or imposing an addition~! _con~ition on th~ approval (s 115ZI(1)).142 The approval may be modified without the M1mster s approval 1£ the infrastructure as modified will be consistent with the existing approval (s 115ZI(2)). There is no appeal, by an applicant or objector, against a decision of the Minister to approve or refuse to approve the carrying out or modification of State significant infrastructure. If the application is not approved or is modified by the Minister, the Minister must give reasons to the proponent (s 115ZL(2)).

Application of other provisions of the EPAA

The requirements in Pts 4 and 5 relating to threatened species consultation do not apply to State significant infrastructure because those Parts do not apply to the approval of State significant infrastructure (s 115ZF(1)).

Restrictions on other regulatory powers A stop-work order under s 136 of the Heritage Act 1977, to prevent harm to buildings, works, relics or places, cannot be made so as to prevent or interfere with the carrying out of State significant infrastructure (EPAA s 115ZG(2)). The Minister or Secretary may make orders under EPAA Pt 6 Div 2A in connection with State significant infrastructure (s 121B(1)(aa)). With respect to critical State significant infrastructure, a range of directions, orders and notices cannot be made or given so as to prevent or interfere with the carrying out of the activity, namely:

With exceptions, Pts 3, 4 and 5 of the EPAA, and EPis, do not apply to State significant infrastructure (s 115ZF). The exceptions are: • Part 3 and EPis apply to the declaration of infrastructure as State significant infrastructure or as critical State significant infrastructure and to the declaration of development that does not require consent (s 115ZF(2)(a)). • Section 28 (suspension of regulatory instruments including covenants) may be used to enable State significant infrastructure to be carried out in accordance with an approval granted under Pt 5.1 (s 115ZF(2)(b)). • Part 4 Divs 6 (development contributions) and 6A (contributions for affordable housing) apply to State significant infrastructure that is not carried out by or on behalf of a public authority (s 115ZF(3)). • Section 109R (certification of Crown building work) applies to approved State significant infrastructure (s 115ZF(6)). Regulations apply the certification provisions in Pt 4 to State significant infrastructure (s 115ZF(5); EPAR cl 198).

Authorisati ons, consultation and concurrence The provisions removing requirements for authorisations, consultation and concurrence under the EPAA and other legislation, and requiring other authorisations to be granted and to be substantially consistent with the Pt 5.1 approval, are the same for ~oth State significant development and State significant infrastructure. These were outlined earlier in relation to State significant development. For State significant infrastructure the relevant provisions are ss 115ZG(1) and 115ZH. 140 141

142

Barrick Australia Ltd v Williams (2009) 74 NSWLR 733. The power of modification under the repealed Pt 3A was interpreted as permitting a modi~cation which is not substantially the same as the development already approved: W 1llwms v Mini ster for Planning (2009] NSWLEC 5 at (56] per Biscoe J; Williams v Ministerfor Planning (No 2) (2011] NSWLEC 62 at (78] per Pain J. The finding in Williams v Minister for Plannin~ [2009] NSWLEC 5 that t~e proposal did not fall within the modification power because that power did not contemplate a radical transformation of the terms of an existing approval was set aside by the Court of Appeal because the factual assessment was a matter for the Minister not the Court: Barrick Australia Ltd v William s (2009) 74 NSWLR733. The observations of Basten JA regarding the extent of the power of modification under s 75W of Pt 3A are instructive (Barrick Australia Ltd v Williams (2009) 74 NSWLR 733 at [52]-(53]), but that power indirectly imposed a time limit on the Minister's determination.

139

• an administrative order under Pt 6 Div 2A (s 115ZF(4)); • an interim protection order within the meaning of the National Parks and Wildlife Act 1974 or the Threatened Species Conservation Act 1995; • a stop work order under Pt 6A Div 1 of the National Parks and Wildlife Act 1974, Pt 7 Div 1 of the Threatened Species Conservation Act 1995 or Pt 7A Div 7 of the Fisheries Management Act 1994; • a remediation direction under Pt 6A Div 3 of the National Parks and Wildlife Act 1974; • an environment protection notice under Ch 4 of the Protection of the Environment Operations Act 1997; • an order under s 124 of the Local Government Act 1993. (EPAA ss 115ZF(4), 115ZG(3))

Judicial review and civil enforcement Part 5.1 attempts to limit proceedings in the LEC for judicial review and civil enforcement. Privative clauses need to be interpreted in light of the High Court's decision in Kirk v Industrial Court (NSW), 143 where it was held that State Parliaments cannot as a matter of constitutional law prevent the State Supreme Court from supervising jurisdictional error. There is a constitutionally entrenched minimum provision of judicial review of administrative decisions. First, Pt 5.1 attempts to place a time bar on bringing proceedings. Section 115ZJ(l) provides that the validity of an approval or other decision under Pt 5.1 cannot be questioned in any legal proceedings if the proceedings are not commenced in the LEC within three months after public notice of the decision has been given. As discussed in Chapter 2, before Kirk's case this time limit did not bar validity challenges based on breach of the Hickman provisos.144 Since Kirk's case, the LEC has held that a similar provision in EPAA s 101 cannot prevent the court from reviewing the full range of jurisdictional errors.145 However, Basten JA in the NSW Court of Appeal has expressed, without deciding, reservations about applying Kirk's case to s 101.146 143 144 145

146

(2010) 239 CLR 531. R v Hickman; Ex pnrte Fox and Clinton (1945) 70 CLR 598. Brown v Rnndwick City Council [2011] NSWLEC 172 at [39] per Preston CJ; Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184 at [74]. See also Gold and Copper Resources Pty Limited v Hartcher (No 2) [2014] NSWLEC 30 at [224]. Trives v Horn sby Shire Council [2015] NSWCA 158 at [46]-[50] (Macfarlan and Meagher JJA agreeing). Basten JA also expressed doubts about the relevance of Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 in interpreting environmental planning legislation.

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Second, s 115ZJ(2) provides that the only requirement of Pt 5.1 that is mandatory in connection with the validity of an approval of State significant infrastructure is a requirement that an EIS with respect to the infrastructure is made publicly available. The broadest interpretation of this provision would be that breach of any of the other provisions of Pt 5.1 cannot result in invalidity and cannot be remedied or restrained by the court. However, in interpreting a similar provision in the repealed Pt 3A, the LEC adopted a restrictive interpretation, consistent with the presumption that the legislature does not intend to limit a court's ability to supervise the legality of administrative decisions. The court's jurisdiction to make orders turns on whether there has been a breach of the legislation. A range of consequences, rather than invalidity, may attend a breach of legislation, and the mandatory/directory distinction is not helpful in discerning the consequence intended.147 The section must be construed as an expression of Parliament's intention that the only breach which will necessarily lead to invalidity is the requirement to make the environmental assessment publicly available.148 The consequence of other breaches will need to be worked out on a case-by-case basis, and could also include invalidity. In Gray v Minister for Planning,149 Pain J held that the failure of the DirectorGeneral to take into account a mandatory consideration, when deciding whether an environmental assessment under Pt 3A was adequate, could result in invalidity. The Court of Appeal in Minister for Planning v Walker 150 agreed that the requirement to make an EIS publicly available does not provide the only ground of invalidity. Third, and with seeming greater effect, s 115ZK attempts to shield from supervision breaches of the law relating to critical State significant infrastructure. Section 115ZK(2) provides that EPAA s 123 and PEOA ss 252 and 253 cannot be invoked - except by the Minister or with the approval of the Minister - to remedy or restrain:

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conditions of a Pt 5.1 approval for critical State significant infrastructure. In any other proceedings relating to critical State significant infrastructure, the applicant would need to show common law standing. Provided the applicant has standing, proceedings may be brought for judicial review of decisions of the Minister or other public authorities, and for civil enforcement, including to ensure compliance with authorisations for critical State significant infrastructure, other than the Pt 5.1 approval. Section 115ZK differs from its predecessor under Pt 3A which purported to make the Minister the 'gatekeeper' for all proceedings, including proceedings under LECA s 20(2) for judicial review of the Minister's own decisions. In Haughton v Minister for Planning and Macquarie Generation,151 the LEC readily rejected a literal interpretation of the section. As a matter of substance, such an interpretation would oust the jurisdiction of the LEC and the Supreme Court to supervise jurisdictional error, contrary to the decision of the High Court in Kirk. Further, the LEC was not prepared to interpret the section as preventing a person on whom standing has been conferred bys 123 from challenging a decision of a Minister on the basis of jurisdictional error.152 In the alternative, the LEC would have extended common law standing to the applicant whose concerns about, and activism relating to, anthropogenic climate change were found to extend beyond those of the public generally.153

• a breach of the Act in respect of critical State significant infrastructure, including the declaration of the development as State significant infrastructure and critical State significant infrastructure and any approval or other requirement under Pt 5.1 for the infrastructure; • a breach of any conditions of an approval under Pt 5.1 for critical State significant infrastructure; • a breach of the EPAA or any other Act arising in respect of the giving of an authorisation for critical State significant infrastructure or in respect of the conditions of such an authorisation. Section 115ZK(3) separately provides that the conditions of approval under Pt 5.1 for critical State significant infrastructure can only be enforced by or with the approval of the Minister, whether under EPAA s 123 or PEOA ss 252 and 253, or in the LEC's jurisdiction under LECA s 20(2), or in any other proceedings. Section 115ZK does not attempt to remove the jurisdiction of the court to supervise jurisdictional error but to limit access to the LEC. As discussed earlier in Chapter 2, EPAA s 123 and PEOA ss 252 and 253 extend standing to 'any person' to ensure compliance with the relevant law. The effect of 115ZK would seem to be that only the Minister can bring proceedings (or approve proceedings brought by a third party) to enforce 147 148 149

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. Tugun Cobaki Alliance Inc v Minister for Planning and RTA (2006] NSWLEC 396 at (184] per Jagot J. (2006] NSWLEC 720 at (143]. See also Community Action for Windsor Bridge Incv NSW Roads and Maritime Services [2015] NSWLEC 167 at (101]; Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd (2013] NSWCA 45 at (57].

150

(2008) 161 LGERA 423 at (28]-(33] .

151 152 153

[2011] NSWLEC 217 at (98] per Craig J. Ibid at [59]-(80]. Ibid at (93]-(95], applying North Coast Environment Council Inc v Minister for Resources (1994) 55 FCR 492.

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5

ENVIRONMENTAL IMPACT ASSESSMENT IN NEW SOUTH WALES

This chapter explains the framework in New South Wales for assessing the environmental impact of proposed development, whether or not it requires development consent. This involves examining the procedures in Pts 4 and 5 of the Environmental Planning and Assessment Act 1979 (EPAA). This chapter is only concerned with assessment procedures and documentation. Chapter 4 discusses the making and determination of a development application. In addition to assessment under the EPAA, a proposal may also require assessment and approval by the Commonwealth under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBCA). Chapter 6 examines the the environmental impact assessment (EIA) and approvals regime under the EPBCA.

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may well be intractable. Yet it is at this stage that the legislative tools for alerting decision-makers to the likely or uncertain environmental consequences are at their most developed. Development control legislation has long included requirements for environmental impact statements (EISs) and other documentation of potential impacts, and opportunities for public participation, at the time of approving physical actions or the use of land. Decision-makers may be assisted by the precautionary principle - not only in determining the application, but also in deciding whether documentation of environmental impacts is required and is adequate. The precautionary principle is a method of decision-making that guides assessment where there are threats of serious or irreversible environmental damage and scientific uncertainty. It shifts the focus of assessment from the acceptability of the likely impacts to preventing threatened impacts. The precautionary principle is of considerable utility in exposing for scrutiny the types of uncertainty that must be factored into assessment and in prompting decision-makers to examine technical and scientific information more critically. Application of the principle helps to ensure that uncertainties attending environmental concerns are not excluded from due consideration along with other priorities.1 In particular, as a decision-making tool the precautionary principle carries implications relating to evidentiary burdens, the presentation of scientific and technical material, the examination of experts, and the sourcing and weighing of evidence. 2

Purposes of EIA

Introduction At Commonwealth level, one of the functions of environmental impact assessment (EIA) is to identify those actions that require approval. In order to trigger the assessment and approval requirements, an action must be likely to have a significant impact on a matter protected by the Act. EIA performs a determinative function at this initial stage. At State level, environmental planning instruments (EPis) identify, through zoning, locality planning or otherwise, those developments that require consent or approval. The function of EIA is to inform the decision as to whether or not to approve the carrying out of proposed development. Assessment of environmental impact will frequently be a central consideration. An EPI may reduce or remove discretion by fixing standards or requirements, or by imposing restrictions or prohibitions, that resolve some or all of the issues in advance of particular applications. Examples of jurisdictional constraints developed at the planning stage are zone objectives or environmental performance criteria which have to be satisfied before assessing a particular proposal on its merits. These can serve to both inform and confine the discretionary issues in assessing environmental impact. But in the absence of an absolute prohibition or an inflexible standard, the discretion to approve development will invariably involve, to varying degrees, an assessment of the environmental consequences of proposed development. The focus of assessment, depending on the nature of the proposal, will range from weighing the acceptability of likely impacts to determining how, if at all, uncertain impacts, which threaten serious or irreversible environmental damage, can be prevented. The choices for the decision-maker at the development control stage are likely to be limited. A contest between the applicant, the consent authority and interested members of the public has been engaged and alternatives are constrained. If prior policy-making or planning was not adequately informed by environmental considerations, the contest

EIA law has served important educative and democratic purposes. It has enhanced the internalisation of environmental considerations by proponents and decision-makers, and it has underlined the need for full environmental disclosure and public discussion of development proposals. While the achievement of these objectives may be flawed, the purposes remain valid and crucial. Mechanisms are available to enhance the reliability and independence of environmental assessment and the accountability of public and private decision-makers. Poor science, token public participation and flabby political will can be addressed through a range of action-forcing and reporting measures and cultural changes.

Challenges for EIA law The serious flaw in EIA law is its project focus. Both the EPAA and the EPBCA are predominantly concerned with mechanisms to assess the impacts of individual projects. It is well understood that the environment is not impacted by a single activity, but by the interaction and cumulative impact of decisions, actions and natural processes, spatially and temporally. Cumulative impacts and long-term effects cannot be effectively addressed at the stage of implementing a project. Further, project-by-project assessment pre-empts future decisions on the type and timing of development, and increases the cost burden of environmental mitigation. 3 Choosing the 'no-go' option and evaluating alternative uses of land is highly constrained when assessing an individual project in the context of existing development and permissive EPis. 1 2 3

See Jacqueline Peel, The Precautionary Principle in Practice (Federation Press, 2005). See especially Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10. David James, 'Environmental Impact Assessment: Improving Processes and Techniques' (1995) 2 Australian Journal of Environmental Management 78 at 80-81.

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Requirements to consider an EIS when approving single projects have deflected attention from the crucial need to subject choices made at the policy or planning level to assessment for their environmental impact. An integrated perspective, which transcends time and space, can only be achieved at this level. The EPAA as originally enacted provided for environmental studies as part of the regional and local environmental planning process. Where a study was undertaken, it had to be a study 'of the land' - that is to say, an assessment of alternative uses of the land rather than a particular proposal, even in the case of a rezoning.4 Further, also differing from an EIS, the study had to be prepared by, or on behalf of, the planning authority, rather than the developer. The Environmental Planning and Assessment Amendment Act 2008 repealed the provisions relating to environmental studies. The amendment Act also repealed regional environmental planning as a statutory exercise. The Department of Planning has, since 2006, been engaged in strategic regional planning outside the framework of the EPAA. Local planning proposals are subject to a 'gateway determination', in the course of which studies may be required as a matter of discretion, as discussed in Chapter 3 (EPAA ss 54(3), (4), 55(3), 56(2)(b)). The Minister may also arrange for a review of a planning proposal by the Planning Assessment Commission or a joint regional planning panel (s 56(5)). Amendments in 2006 and 2010 to the Threatened Species Conservation Act 1995 (TSCA) encourage planning authorities, particularly local councils, to address biodiversity conservation at a landscape scale. The incentive is that the Environment Minister may confer biodiversity certification on specified land with the consequence of reducing sitespecific regulatory requirements relating to biodiversity assessment (TSCA Pt 7AA). The Minister may confer biodiversity certification only if the certification will improve or maintain biodiversity values (TSCA s 1260) and only if the planning authority has a biodiversity certification strategy (s 126K(l)). A 'biodiversity certification strategy' is a policy or strategy for the implementation of conservation measures to ensure that the overall effect of biodiversity certification is to improve or maintain biodiversity values (s 126K(2)). At the planning stage, using the approved biodiversity certification assessment methodology, the planning authority identifies the biodiversity values of the land, including endangered ecological communities, and determines the areas which can viably be protected in the long term. Any clearing within the development footprint needs to be offset, which can be done through permanently protecting areas of high conservation value and improving their conservation value through management plans. Offsets can be secured in a variety of ways, subject to any requirements of the biodiversity certification assessment methodology (s 126L). These include the reservation of land, conservation agreements, property vegetation plans, financial contributions towards the conservation or enhancement of the natural environment, zoning and acquisition or retirement of biodiversity credits (s 126L). Biodiversity certification and the biobanking scheme are discussed in Chapter 10.

The EIA regime The structure of the EPAA The structure of the EPAA, at the time of its drafting, reflected an acknowledgement that all development requiring government approval and public development, whether 4

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or not it requires development consent, should undergo some level of environmental assessment. Parts 4 (Development assessment) and 5 (Environmental assessment) of the EPAA deal with project assessment. Development requiring consent is assessed under Pt 4. Part 5 of the Act catches development not requiring consent under the Act, but requiring some other government approval, or being undertaken by or on behalf of a public authority. Under both Parts, environmental assessment is required. Parts 4 and 5 are mutually exclusive in the sense that only one assessment regime can apply to a defined activity or development proposal. Where related developments fall to be assessed under the different regimes, the same environmental impacts may need assessment under both regimes. Assessment under one does not exclude a duty to assess it under the other. 5 This structure became unsettled over the years with the introduction of exempt and complying development and in 2005 with the enactment of the now repealed Pt 3A. Exempt and complying developments are not subject to EIA. Part 3A provided a mechanism for the Planning Minister to remove from the framework of Pts 4 and 5 projects which in the opinion of the Minister were of State or regional environmental planning significance or public development which would otherwise be assessed under Pt 5. Part 3A was repealed in 2011 and replaced with a new regime for assessing major projects and infrastructure. The new regime restores to some extent the s~ructu:e of the Act. State significant development, identified in State Environmental Planning Polzcy (State and Regional Development) 2011 (the SRD SEPP), requires assessment and development consent under Pt 4. State significant infrastructure, being infrastructure which does not require development consent and which is identified in the same SEPP, is assessed and requires approval under Pt 5.1.

Part 4 - development assessment Part 4 of the EPAA establishes the framework for assessing development that requires consent under an EPI. Part 4 is discussed more fully in Chapter 4. Characterisation of development to decide whether it requires consent is discussed in Chapter 3. Applications for development consent must be accompanied by either a statement of environmental effects (SEE) or an EIS. An EIS must accompany an application for designated development and an application for State significant development. All other applications must be accompanied by a SEE. In addition, an application must be accompanied by a species impact statement (SIS) if the development is on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats. It should also be noted that EPis will identify a range of exempt and complying development. Exempt development can be carried out in accordance with the EPI without being assessed under either Pts 4 or 5. It must by definition be 'of minimal environmental impact' (EPAA s 76(2)). Complying development is development that can be addressed by specified predetermined development standards (s 76A(5), (6)). The proposal is assessed against those development standards and, if it complies, a complying development certificate, which enables the development to be carried out, must be issued (s 85A). Environmental assessment more generally is not relevant. 5

Burns Philp Trustee Co Ltd v Wollongong CihJ Council (1983) 49 LGRA 420. See also Capital Airport Group Pty Ltd v Director-General of the NSW Department of Planning (No 2) [2011] NSWLEC 83.

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Haxton Park Residents Action Group Inc v Liverpool City Council [2010] NSWLEC 242 at (19]-[26]. This part of the decision was not disturbed on appeal: Haxton Park Residents Action Group Inc v Liverpool CihJ Co11ncil [2011] NSWCA 349 at [53]-[56].

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• requires consent under Pt 4; or • is prohibited development; or • is development identified in an EPI as 'exempt development' - that is, development 'of minimal environmental impact' (s 76(2)); or • is development being carried out in compliance with an administrative order under Pt 6 Div 2A; or • is of a class or description that is prescribed by the regulations. 8 (s 110(1))

Part 5 - environmental assessment Part 5 provides for two forms of environmental assessment. First, it requires environmental assessment of activities that do not require development consent under Pt 4, but require some other government approval, or are being undertaken by or on behalf of a public authority. If the activity is likely to significantly affect the environment, an EIS is required. Species impact assessment is also required if the development is on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats. Second, Pt 5 Div 5 provides for strategic environmental assessment of commercial fisheries, dispensing with the need for environmental assessment of individual licence applications.

The ambit of Part 5 This section explains the ambit of Pt 5, excluding State significant infrastructure, outlined below, and excluding the strategic assessment of commercial fisheries. Apart from the provisions covering State significant infrastructure and commercial fisheries, the structure of Pt 5 has remained largely intact since the enactment of the EPAA. It applies to activities that do not require consent under Pt 4 and are not prohibited. This could be either public or private development, provided that, in the case of private development, the activity requires a government approval, other than development consent. The intention of Pt 5 is to catch development which escapes environmental assessment under Pt 4 and to ensure that all public authorities undertaking activities that do not require development consent internalise environmental considerations, regardless of the terms of their statutory mandate. To bring Pt 5 into play, there must be an activity, which is proposed to be undertaken by a determining authority or requires the approval of a determining authority.

Activity An early retreat from the original intention of Pt 5 was the re-definition of 'activity' to mean the same as 'development' (s 110(1)). In the early years of the EPAA, 'activity' was defined much more broadly than 'development' so as to trigger environmental assessment at an early stage in planning public projects - when formulating the proposal, making financial outlays, resuming or leasing land and so forth. Interpretation of 'development' is discussed in Chapter 4. A significant case under Pt 5 is the decision of the Land and Environment Court (LEC) in Sustainable Fishing and Tourism Inc v Minister for Fisheries. 6 In that case it was held that commercial fishing falls within the definition of development, being the 'use of land'. Thus in granting a commercial fishing licence under the Fisheries Management Act 1994 (FMA), the Minister for Fisheries had to comply with Pt 5 of the EPAA. EPAA Pt 5 was subsequently amended to provide for strategic environmental assessment of commercial fisheries and to dispense with the need for environmental assessment of individual applications for licences (Pt 5 Div 5). Excluded from the definition of 'activity' is development that:7 6 7

(2000) 106 LGERA 322. In addition, ss 111 and 112 do not apply to routine activities (such as the maintenance of infrastructure) that the Minister determines has a low environmental impact and that is carried out in accordance with a code approved by the Minister: s ll0E.

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Although the existing use provisions fall within Pt 4, a use that does not require development consent because of the dispensation in s 109 is nevertheless caught by Pt 5 if an approval, such as a mining licence, is required. 9 Existing uses are explained in Chapter 3. SEPP (Infrastructure) 2007 exempts a range of development from the need to obtain development consent, thus bringing Pt 5 into play or, as later explained, Pt 5.1. The exemptions include public development for the purpose of: an airport; an electricity transmission or distribution network; bush fire hazard reduction work; flood mitigation work; forestry; gas pipelines; port facilities; a road or road infrastructure facilities; sewage treatment plants and water recycling facilities; soil conservation works; stormwater management systems; telecommunications facilities; water storage facilities; and waterway or foreshore management activities. Further, the SEPP exempts from the need to obtain development consent, development for any purpose on land reserved under the National Parks and Wildlife Act 1974 (NPWA), land declared under the Marine Parks Act 1997 to be a marine park, and land declared under the FMA to be an aquatic reserve. Characterisation of a proposal as an 'activity' is a jurisdictional fact, which means that on an application for judicial review the LEC can review the decision of the determining authority de novo.10 Where the activity has more than one purpose, a 'dominant purpose' approach to characterisation of the activity has been used:11 see Chapter 3. This has the consequence that, if the dominant purpose does not require government approval, Pt 5 is not brought into play. However, interdependent purposes may require independent characterisation having regard to their character, extent and other features. 12

Determining authority 'Determining authority' in relation to an activity means a Minister or public authority carrying out an activity or on whose behalf the activity is to be carried out, or whose approval is required in order to enable the activity to be carried out (EPAA s 110(1)). The term 'public authority' includes local government and statutory State-owned corporations within the meaning of the State Owned Corporations Act 1989 (EPAA s 4(1)).13 The regulations may prescribe persons to be public authorities (s 4(1)); and have done so for the purpose of allowing them to be determining authorities within the meaning of Pt 5: 8 9 10 11

12 13

See Environmental Planning and Assessment Regulation 2000 cl 227AA (demolition of a temporary structure). Vaughn-Taylor v David Mitchell-Melcnnn Pty Ltd (1991) 73 LGRA 366 (CA). Coles Holdings v Tweed Shire Council (1999) 110 LGERA 235. Brown v EPA (No 2) (1992) 78 LGERA 119. However, see the decision of the Court of Appeal relating to characterisation of designated development (discussed later in this chapter): Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323. Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 (characterisation of designated development under EPAA Pt 4). For company State-owned corporations, see State Owned Corporations Act 1989 s 37A.

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see Environmental Planning and Assessment Regulation 2000 (EPAR) cl 277.14 Commonwealth Ministers and public authorities cannot be determining authorities.15 Further, the phrase 'on whose behalf' does not include an authority that merely consults with, or furthers the interests of, a public authority.16 Thus the Federal Airports Corporation, in carrying out dredging for the third runway at Sydney airport, could not be said to be acting on behalf of a NSW public authority, the Maritime Services Board, merely because the dredging served the long-term interest of the Board in constructing a new dock facility at the dredging site.17 In particular, the Board had no legal power to direct or supervise or control the activities of the Federal Airports Corporation. There are some statutory exemptions. For example, authorities granting fire permits under the Rural Fires Act 1997 are not determining authorities within the meaning of Pt 5.18 The Director-General under the TSCA is not a determining authority when granting a licence to harm or pick threatened species, populations or ecological communities or to damage habitat (TSCA s 99).19 Nor is the Director-General a determining authority when granting general and scientific licences under the NPWA (ss 120, 132C), or approving a property management plan under the TSCA (s 113B). Where there is more than one determining authority, the Minister may nominate one of them as the determining authority responsible for discharging the obligations relating to obtaining and considering an EIS where Pt 5 so requires (EPAA s 110A). This does not absolve the other determining authorities from the more general obligation to take into account all matters affecting or likely to affect the environment by reason of the activity (s 110A(2)), subject to the exemption for activities that have been approved, or are to be carried out, by another determining authority after environmental assessment in accordance with Pt 5 (s ll0E(c)). 20 Approval

The definition of 'approval' is broad and inclusive. It includes a consent, licence or permission, or any form of authorisation. It also includes the 'provision of financial accommodation by a determining authority to another person' unless excluded by the determining authority (EPAA s 110(1)). The term 'approval' has been held to include a renewal of an approval. 21

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State significant infrastructure (EPAA s 115U(2)). The Minister's approval is required for State significant infrastructure (s 115W). Development can only be so declared if a SEPP permits the development without the need for consent under Pt 4 and the development is either: • infrastructure; or • an activity for which the proponent (other than a council) is also the determining authority and which would, in the opinion of the proponent, otherwise require an EIS to be obtained under Pt 5. (s 115U(3))22 The Minister has made the relevant declaration relating to Pt 5 activities where an EIS is required (SRD SEPP Sch 3.1). This provides external scrutiny where public authorities would otherwise approve their own activities. Pursuant to s 115U(2), the SRD SEPP declares a range of development to be State significant infrastructure, provided the development is permissible without consent under a SEPP (SRD SEPP cl 14(1), Sch 3). Included in the schedule of State significant infrastructure are major port and wharf or boating facilities, rail infrastructure, water storage or treatment facilities, pipelines, submarine telecommunications cables and certain development on land reserved under the NPWA. Any State significant infrastructure may also be declared to be critical State significant infrastructure. The Minister must be of the opinion that the infrastructure is of a category that is essential for the State for economic, environmental or social reasons (s 115V). The assessment requirements are the same as those for other State significant infrastructure.

EIA: key issues In designing a statutory scheme for environmental assessment, a number of key issues need to be resolved, including:23 • What levels of assessment should be provided? • How should the requirement for an assessment document be triggered, and who decides when the requirement arises? • At what stages should environmental assessment be required? • What should the assessment document address, and who should prepare it? • How should effect be given to the community's right to know and participate? • What should be the function of the assessment document in decision-making? • What mechanisms of external scrutiny should be put in place? • How should the requirements be enforced? • Is provision made for post-approval monitoring and auditing?

Part 5.1 - State significant infrastructure Under Pt 5.1, State significant infrastructure requires environmental assessment and the approval of the Minister. The Secretary must prepare environmental assessment requirements, which must include a requirement that the proponent prepare an EIS in the form approved by the Secretary. State significant infrastructure is explained in more detail in Chapter 4. In short, a SEPP may declare any development, or any class or description of development, to be 14 15 16 17 18 19 20 21

See also EPAA s 111A (Regulations for environmental impact assessment by prescribed determining authorities). Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453. Citizens Airport Environment Assoc Inc v Maritime Services Board (1993) 79 LGERA 254. Ibid. Rural Fires Act 1997 s 96. See also FMA s 221B. See Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182. Brown v EPA (No 2) (1992) 78 LGERA 119.

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The ways in which Pts 4 and 5 of the EPAA resolve these issues are explained in the rest of this chapter. First, however, it is necessary to outline the effect of the biodiversity certification and biobanking scheme under the TSCA. Where this scheme applies, it creates important exemptions to environmental assessment of biodiversity values at the project control stage. The exemptions affect statutory duties under both Pts 4 and 5 of the EPAA. 22 23

As explained in Chapter 4, the Minister may also call-in particular development without the need to comply with these constraints: s 115U(4). See generally Mandy Elliot, Environmental Impact Assessment in Australia - Theory and Practice (6th ed, Federation Press, 2014); Christopher Wood, Environmental Impact Assessment: A Comparative Review (2nd ed, Prentice Hall, 2003); Nick Harvey and Beverley Clarke, Environmental Impact Assessment in Practice (Oxford University Press, 2012).

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Biodiversity certification and biobanking As explained in the sections that follow, when development or an activity is to be carried out on land that is critical habitat, or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, three statutory duties arise under both Pts 4 and 5: • an SIS must be prepared and considered (Pt 4 s 78A(8)(b); Pt 5 s 112(18)); • the consent authority or the determining authority must obtain the concurrence of the Chief Executive (Office of Environment and Heritage (OEH) or Fisheries) before granting consent or approval, or carrying out an activity (ss 79B(3)-(7), 112C);24 and • the consent authority or determining authority must consider the factors specified in s SA when determining an application or carrying out an activity. These duties do not apply to State significant development and State significant infrastructure, except in relation to the Minister's consideration under s 79C of an application for State significant development where the s SA factors are relevant.

Biodiversity certification In 2008 a scheme for biodiversity certification and biodiversity trading commenced under the TSCA with a view to encouraging biodiversity planning and conservation at a landscape scale. Where planning authorities and development proponents take advantage of this scheme, site-by-site assessment of biodiversity values is not required. Participation in the scheme is voluntary. Biodiversity certification of land was outlined in the introduction to this chapter. The scheme allows planning authorities to obtain biodiversity certification of land where the authority has in place a strategy of conservation measures, management plans and offsets to ensure that, overall, the outcome of biodiversity certification will be to improve or maintain biodiversity values (TSCA Pt 7AA). The approved biodiversity certification assessment methodology must be used. Where development is proposed on biodiversity certified land, the following dispensations apply (s 1261): • Development consent under Pt 4 - The proposed development is taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat. - A consent authority, when determining a development application, is not required to take into consideration the likely impact of the development on biodiversity values.

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The term 'biodiversity values' is defined inclusively (TSCA s 4A). It includes the composition, structure and function of ecosystems, and it includes (but is not limited to) threatened species, populations and ecological communities, and their habitats. It does not extend to the biodiversity values of fish or marine vegetation within the meaning of Pt 7A of the FMA, other than those that are considered to be animals or plants because of an order made under s SA of the TSCA.

Biobanking Biobanking is explained more fully in Chapter 10. In short, under the biobanking scheme, biobank sites may be established by means of biobanking agreements entered into between the Minister and the owners of the land concerned, which are registered on the land title and are binding on and enforceable against successors in title to the land (TSCA Pt 7A Divs 2 and 3). Management actions carried out, or proposed to be carried out, on biobank sites that improve biodiversity values create tradeable biodiversity credits that can be used by development proponents to offset the impact of proposed development on biodiversity values (TSCA ss 127V-1272l). 25 A biobanking statement may be issued in respect of any development that requires development consent under EPAA Pt 4, any activity to which Pt 5 applies and development that is State significant infrastructure under Pt 5.1 (TSCA s 1272J). The Director-General may only issue a biobanking statement if the proposed development will improve or maintain biodiversity values (s 1272L(l), (2)). This is determined on the basis of an assessment of the development in accordance with the biobanking assessment methodology, including the number and class of biodiversity credits to be retired to offset the negative impact of the development. The statement may apply generally to the proposed development or may be limited to a specified aspect or a specified part of the land or by reference to its potential impact on specified biodiversity values (s 1272L(6)). If consent or approval is granted, it must include any conditions specified in the biobanking statement and those conditions cannot be appealed (ss 12720(2), (3), 1272P(2), (4)). 1£ a determining authority is the proponent of an activity under Pt 5 in respect of which a biobanking statement has been issued, the determining authority must carry out the activity in accordance with any conditions specified in the biobanking statement (s 1272P(5)). The issue of a biobanking statement has the following consequences. • Development consent under Pt 4 (s 12720) - The proposed development is taken to be development that is not likely to significantly affect any threatened species, population or ecological community, or its habitat. - A consent authority, when determining a development application, is not required to take into consideration the likely impact of the development on biodiversity values.

• Activities under Pt 5 - An activity to which Pt 5 applies is taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community. - A determining authority is not required to consider the effect on biodiversity values (despite EPAA s 111).

• Activities under Pt 5 (s 1272P) - An activity to which Pt 5 applies is taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community. - A determining authority is not required to consider the effect on biodiversity values (despite EPAA s 111).

• State significant infrastructure under Pt 5.1 - The environmental assessment requirements do not require an assessment of the impact of the infrastructure on biodiversity values.

• The Native Vegetation Act 2003 does not apply to biodiversity certified land. 25 24

At ministerial level, consultation rather than concurrence is required.

Management actions under a biobanking agreement for which biodiversity credits may be created are taken to be exempt development for the purposes of the EPAA: TSCA s 127K.

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Although the scheme dispenses with the need for an SIS, an application for the issue of a biobanking statement will require some level of assessment. The application may be refused if the applicant does not demonstrate that all cost-effective on-site measures to minimise any negative impact of the development on biodiversity values will be carried out (s 127ZL(4)(d)). The application must also include an assessment of the likely impacts of the development on biodiversity values and a statement of the class and number of biodiversity credits proposed to be retired, prepared in accordance with the biobanking assessment methodology (s 127ZK). If the Director-General refuses to issue a biobanking statement, the proponent may apply for assessment under the applicable part of the EPAA and the usual requirements for an SIS and concurrence or consultation will apply (s 127ZL(8)).

Levels of environmental assessment The EPAA provides for four levels of assessment. First, there is a general duty under both Pts 4 and 5 to take into account environmental impact as a relevant consideration. Under Pt 4 the duty is imposed on the consent authority at the time of determining the development application (s 79C(l)(b)). It applies to all consent authorities, including the Minister when determining applications for State significant development (s 89H). The duty under Pt 5 is much broader (s 111). It applies to a determining authority, who may also be the proponent, and it is not confined to the approval decision. Section 111 is explained immediately below. Second level assessment is the statement of environmental effects (SEE). Under Pt 4 applications for development, consent must be accompanied by a SEE. Third, under both Pts 4 and 5, some proposals or classes of development may require fuller and more formal documentation of assessment and evaluation of environmental impact. This takes the form of an EIS and/or an SIS. The triggers are discussed below, as is the content of SEEs, EISs and SISs. Fourth, a public inquiry may be established at the discretion of the Minister. This is discussed under the heading 'Public Participation', below. It should be noted that EISs and SISs are the only types of formal assessment documents provided for in the Act and that the majority of development applications will not be accompanied by documentation of this type. The binary nature of the decision as to whether a formal assessment process must be and has been followed creates dilemmas, including when assessing the adequacy of the assessment document. As discussed below, failure to comply with the requirements relating to EISs and SISs leads to the invalidity of any consent or approval. Preparation of a review of environmental factors (REF) is common practice, not least in order to decide whether an activity is likely to have a significant environmental impact giving rise to statutory obligations to prepare an EIS or SIS. The Department of Industry Resources and Energy, for example, requires preparation of an REF as part of the process of approving mining and petroleum exploration activities that are subject to Pt 5. 26 An REF, however, has no statutory basis in the EPAA.

26

See NSW, Department of Industry, Skills and Regional Development, ESG2: Guideline for Preparing a Review of Environmental Factors July 2015, (accessed 1 November 2015).

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Part 5 section 111 - the duty to consider environmental impact Part 5 s 111 imposes a general duty on determining authorities, in their consideration of an activity, to examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. This obligation applies notwithstanding the provisions of any Act or any instrument made under an Act. 27 The thinking behind this obligation, and its language, can be sourced to the United States National Environmental Policy Act of 1969 (NEPA) - the seminal EIA legislation. 28 The requirement is designed to make environmental protection a part of the mandate of all public bodies. It precludes a public body from arguing that it has no statutory authority to concern itself with the environmental impacts of its activities. 29 In the case which laid the foundation for subsequent interpretation of NEPA, the phrase 'to the fullest extent possible' was said to set a high standard for public decision-making, which must be rigorously enforced by the reviewing court. 30 The phrase has elicited a more sceptical response from the NSW Court of Appeal, which has substituted 'reasonably practicable' for 'possible'. 31 The LEC, however, has acknowledged the importance of s 111 to a proper working of Pt 5, Cripps J stating that compliance with its requirements is pivotal. 32 Pepper Jhas usefully pointed out that s 111 is not merely a run-of-the-mill requirement to have regard to relevant considerations. 33 That is only one of the duties imposed bys 111. The section imposes a further duty; namely to examine to the fullest extent possible all matters likely to affect the environment by reason of that activity. This creates a 'Prasad-like duty to inquire'; that is to say, a legal duty to make inquiries where there is information that is readily available and centrally relevant. 34 Non-compliance with this duty may be established by adducing expert evidence. Expert or other extraneous evidence is admissible to show what inquiries ought to have been made as a precursor to examining the relevant matters and, if they had been made, what those inquires would have revealed. 35 However, with respect to the other duty- to take into account all matters likely to affect the environment - expert evidence is not admissible. 36 A reviewing court is confined to the material actually or constructively before the decision-maker. It has been held that the s 111 duty is not necessarily inconsistent with a direction to carry out an activity. Even though the direction must be carried out, there remains scope to consider how it can be carried out in a way that mitigates environmental impact. 37 In 27

28 29 30 31 32 33 34 35 36 37

For the approach to statutory interpretation where the other statutory regime is also expressed to apply 'notwithstanding' or 'despite' any other Act or law, see Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [97]-[99], [101]-[116]; Oshlack v Rous Water [2011] NSWLEC 73 at [38]-[41], [48]-[56]. See MC Blumrn, 'The Origin, Evolution and Direction of the National Environmental Policy Act' (1988) 5 EPLJ179. For example, Calvert Cliffs ' Coordinating Committee v United States ACE 449 F 2d 1109 (DC Cir, 1971). Ibid per Skelly Wright J. Guthega Development Pty Ltd v Minister (1987) 7 NSWLR 353; Tran sport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 at [68]. F Hannan Phj Ltd v ElectricihJ Commission of New South Wales (1983) 51 LGRA 353 at 365-366. Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [142]. Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. Fullerton Cove Residents Action Group Incorporated v Dart Energy Ltd (No 2) [2013] NSWLEC 38 at [144]. Ibid at [143]. Osillack v Rous Water [2011] NSWLEC 73 at [55] per Biscoe J. In subsequent litigation it was concluded that the water supply authorities had discharged their obligations under s 111: Oshlack v Rous Water (No 2) [2012] NSWLEC 111 per Pepper J; appeal dismissed Oshlack v Rous Water [2013] NSWCA 169.

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this situation, it is clearly preferable that environmental assessment commence at the stage of giving directions. This will be required under Pt 5 if the person giving the direction is a determining authority whose approval is required for the carrying out of the activity. And it may engage the exemption in s 110E(c);38 namely, that a person carrying out an activity that has been approved by another determining authority after environmental assessment in accordance with Pt 5 is not bound by ss 111 and 112. The exemption will apply where the ambit of considerations for both determining authorities corresponds. 39 The Environmental Planning and Assessment Regulation 2000 (EPAR) sets out an extensive list of factors that must be taken into account in considering environmental impact, including any long-term effects on the environment and any cumulative environmental effect with other existing or likely future activities (cl 228). 40 The Secretary may establish guidelines for the factors to be taken into account in relation to activities generally or in relation to any particular kinds of activities (cl 228(3)). General guidelines have been issued at State level, providing a structured process by which the relevant factors can be interpreted and the required level of assessment determined. 41 A feature of these guidelines is that they envisage documentation of the duty to have regard to relevant considerations, thereby enhancing greater accountability.42 Without limiting the generality of the s 111 duty, a determining authority must consider the effect of an activity on: • any conservation agreement entered into under the NPWA and associated management plan; • any joint management agreement entered into under the TSCA; • any biobanking agreement entered into under Pt 7A of the TSCA that applies to the land; • any wilderness area, within the meaning of the Wilderness Act 1987; • critical habitat, within the meaning of the TSCA and FMA; • threatened species, populations and ecological communities, and their habitats, within the meaning of the TSCA and FMA; • protected fauna or protected native plants, within the meaning of the NPWA. (s 111(2)) As previously discussed, biodiversity values do not have to be considered if the activity is to be carried out on biodiversity certified land, or where a biobanking statement has been issued in respect of the activity under Pt 7A of the TSCA. When compared to other parts of the EPAA, the s 111 duty is novel. First, where the determining authority is also the proponent, the proponent is under a statutory duty to take into account environmental impacts. In addition, the duty arises in 'the consideration' of an activity. Thus the duty arises at an early stage and continues through implementation of the activity. As the Court of Appeal has recognised, the duty does not arise at any specific time and may thus entail a continuous monitoring of the 38 39 40 41 42

See Eurobodalla Fluoride Issues Inc v Eurobodalla Shire Council [2014] NSWLEC 182. Ibid at [129]. But see SHCAG Pty Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122 at [117], [183] per Pain J. NSW Department of Urban Affairs and Planning, Is an EIS Required? Best Practice Guidelines for Part 5 of the Environmental Planning and Assessment Act 1979 (1995). Among other things this avoids the surprising decision in Rundle v Tweed Shire Council (1989) 68 LGRA 308 at 326 that the determining authority had constructively complied withs 111, even though it was not aware of its responsibilities under Pt 5.

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development. 43 There is a qualification: the s 111 duty does not apply to a modification of an activity already assessed where that will reduce its overall environmental impact (s llOE(a)).

Triggering the requirement for an EIS or SIS The EPAA uses two approaches to identifying those proposals which require formal evaluation and documentation of their potential environmental impact. One approach is to identify particular types of development - to list or categorise them. This approach is used in Pt 4. Under Pt 4, an EIS must accompany an application for designated development, which is listed by class. Similarly, an EIS is required in applying for State significant development and State significant infrastructure, which are identified by class or description. The other approach is to require an assessment of each proposal to determine whether it is likely to impact significantly on the environment. This approach is used in Pt 5. If a proposed activity is likely to significantly affect the environment, an EIS is required. The same approach is used in triggering the requirement for an SIS under both Pts4and5.

Designated development (Pt 4) Under Pt 4 of the EPAA, an application for designated development must be accompanied by an EIS (s 78A(8)(a)). Designated development is development identified as such in Sch 3 to the EPAR or in an EPI (EPAA s 77A). The declaration of development as designated development says nothing about whether the development is permissible. The purpose of the declaration is to require special procedures for environmental assessment and public participation where development requires consent. In addition to the requirement to prepare an EIS, notice must be given to neighbours and the public generally, who have the right to inspect the application and accompanying documentation, and to make submissions (EPAA s 79; EPAR Pt 6 Div 5). Further, any person who has made a submission by way of objection ('objector'44 ) has the right to appeal the grant of development consent (EPAA s 98). It is a merits appeal; that is to say, a full rehearing of the application by the LEC in its class 1 jurisdiction. If the applicant appeals, objectors have the right to be made parties to the proceedings (s 97(4)). These important consequences make it all the more critical to characterise the proposed development correctly. For the most part, EPAR Sch 3 identifies designated development in objective terms. It is likely that in most cases the characterisation will be regarded as a jurisdictional fact, 45 with the consequence that the LEC can review the consent authority's determination de nova. Schedule 3 to the EPAR lists designated development by class. The classes of development are not described by reference to their purpose. The schedule simply describes the type of development and sets out thresholds and qualifications in an effort to ensure that only those developments that are likely to have a significant impact are processed as designated development. The following is an example: 43 44 45

Guthega Development Pty Ltd v Minister (1987) 7 NSWLR 353 at 367. See also Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231 at [158]. EPAA s 4 'objector'. See the reasoning in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422. See also McGovern v Ku-ring-gai Council [2008] NSWCA 209 at [197] per Basten JA.

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Wood or timber milling or processing works (being works, other than joineries, builders supply yards or home improvement centres) that saw, machine, mill, chip, pulp or compress timber or wood: (a) that have an intended processing capacity of more than 6,000 cubic metres of timber per year and: (i) are located within 500 metres of a dwelling not associated with the milling works, or (ii) are located within 40 metres of a natural waterbody or wetland, or (iii) burn waste (other than as a source of fuel), or (b) that have an intended processing capacity of more than 50,000 cubic metres of timber per year. (EPAR Sch 3 cl 33) That example is a reminder that the application and any consent that is granted should specify its intended capacity or output. If the application does not do so and is not processed as designated development, a consent granted that authorises production in excess of the threshold is invalid. 46 Although the schedule does not describe development by reference to its purpose, the LEC has nevertheless used the 'dominant purpose test' to characterise a proposal which has more than one purpose. 47 If the dominant purpose is not designated development, the court has not required the application to comply with the requirements for designated development. Most of the LEC cases concerned sewage treatment plants, which almost always serve the main purpose of the proposal. In the result, sewage treatment plants for large residential or resort development have escaped the environmental assessment requirements for designated development, even though they fall within the schedule. The LEC's approach was held to be erroneous by the Court of Appeal in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd. 48 The Court of Appeal held that the correct approach is to ask whether any part of the overall proposal is designated development and whether the application is 'in respect of' designated development. If it is, it matters not whether the designated development component is an independent use or a use that is subsidiary or ancillary to some other part, or the overall purpose, of the proposal. 49 It would be contrary to the environmental protection objectives of the Act if designated development were to lose that character because it forms part of a greater but non-designated development. 5°Further, the question whether the development application is 'in respect of' designated development should not be narrowly framed. An application is 'in respect of' designated development where a not insignificant part of the development can be so categorised. 51 Shortly after the Court of Appeal's decision, EPAR Sch 3 was amended to restore the approach of the LEC. Development identified in Sch 3 is not designated development if it is ancillary to other development and is not proposed to be carried out independently of that other development (EPAR Sch 3 cl 37A). The test to be applied is objective. 52 This does not apply to sewage systems or works that have an intended processing capacity of more than 2500 persons equivalent capacity or 750 kilolitres per day (EPAR Sch 3 cl 37A(2)). 46 47 48 49 50 51 52

Levenstrath Community Association Inc v Tomies Timber (2000] NSWLEC 95. See Hynes Urban Planners Pty Ltd v Hawkesbury City Council (2003) NSWLEC 1, overruling Maxwell v Hornsby Council (2002) 121 LGERA 186. (2006) NSWCA 323. Ibid esp at (121)-(172], (178)-(179) per Tobias JA, with whom Giles JA and McClellan CJ at CL agreed. Ibid at (182]. Ibid at [180]-(189]. Toner Design Pty Ltd v Newcastle CihJ Council (2013) NSWCA 410.

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Under EPAR Sch 3, if the development application is for alterations or additions to an approved or existing development, it must be asked whether the alterations or additions significantly increase the environmental impacts of the total development - that is, the existing development together with the additions or alterations - compared with the existing or approved development. The application would not be for designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (EPAR Sch 3 cl 35). In making this assessment, the Regulation requires a range of factors to be considered, including previous environmental management performance, the number and nature of all past changes and their cumulative effects, the degree to which the potential environmental impacts can be predicted with adequate certainty, any proposals to mitigate the environmental impacts and any proposals to facilitate compliance with relevant standards (EPAR Sch 3 cl 36).

State significant development (Pt 4) Although the procedures for determining applications for State significant development are contained in Pt 4, designated development does not include State significant development (s 77A(2)). All applications for development declared by the Minister to be State significant development must be accompanied by an EIS (s 78A(8A)).

State significant infrastructure (Pt 5.1) When an application is made for the Minister's approval for State significant infrastructure, the Secretary must prepare environmental assessment requirements (s 115Y(l)). It is expressly provided that the requirements must include preparation of an EIS by or on behalf of the proponent in the form approved by the Secretary (s 115Y(2)).

Likely to significantly affect the environment (Pt 5) Under Pt 5, a determining authority must not carry out an activity, or grant an approval in relation to an activity, that is likely to significantly affect the environment unless the determining authority has obtained, and has examined and considered, an EIS in respect of the activity (s 112(1)). In deciding whether an activity is likely to significantly affect the environment, the EPAR sets out an extensive list of factors that must be taken into account (cl 228(1)). Alternatively, the Secretary may establish guidelines relating to activities generally or activities of a particular kind (cl 228(3)). Litigation has provided guidance in determining whether an activity is likely to significantly affect the environment. First, it has been held that 'likely' means a real chance or possibility, rather than 'more probable than not'. 53 In Booth v Bosworth, Branson J, in considering the similar expression in the EPBCA, inclined to the view that the expression 'likely' should be understood in the sense of 'prone', 'with a propensity' or 'liable'. 54 This would be consistent with the precautionary principle and would tend to avoid the risk to 53

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 94; Drummoyne Municipal Council v Roads and Traffic Authority ofNSW (1989) 67 LGRA 155 at 163; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 193; Oshlack v Richmond River Shire Council and Iron Gates Development Pty Ltd (1993) 82 LGERA 222; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council

54

Booth v Bosworth (2001) 114 FCR 39 at [97]-(98).

(2010] NSWLEC 48 at (84].

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the environment which would flow from the need for scientific certainty or confidence. The expression 'likely' is typical of EIA legislation and a reflection of the era in which such legislation emerged. 55 The legal frameworks for EIA were bedded down at a time when environmental decision-making focused on harm or danger - on responding to known hazards or remedying damage. The precautionary principle subsequently emerged as a legal tool to guide decision-makers and, in particular, to alert them to uncertainties relating to causation and effect, and our incomplete knowledge base. Use of the term 'likely' should not be an invitation to ignore uncertain impacts. Where there is a risk of serious or irreversible damage, lack of scientific certainty about the potential impacts will not itself justify a decision that the action is not likely to have a significant impact. Second, 'significant' means 'important' or 'more than ordinary'. 56 That is only a partial definition as significance can be statistical, ecological or social, or arise from the planning context. 57 A Department of Planning guideline observed that significance depends on:58 • • • •

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fact or degree and is conditioned by the circumstances of the environment; the context and intensity; the existence of pre-established legal limits or precedents; the level of social or political acceptance. 59

In Bailey v Forestry Commission, 60 Hemmings Jaccepted that in each case it is relevant to consider not only the absolute qualitative environmental effects of the activity, but also those in the context of existing adverse impacts arising from the subject environment. His Honour approved the approach in Hanly v Kleindienst61 which requires the proposed activity to be viewed in the light of at least two relevant factors: • the extent to which the action will cause adverse environmental effects in excess of those created by existing uses in the area affected; and • the absolute quantitative adverse environmental effects of the action itself, including the cumulative harm that results from its contribution to existing adverse conditions or uses in the affected area. The term 'environment' encompasses 'all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings' (EPAA s 4(1)). Social and economic effects must be factored in, 62 but if these are the only significant effects it is unlikely that an EIS would be required. 63 Questions of scale are important. In the first Pt 5 case, Kivi v Forestry Commission of NSW, 64 it was made clear that consideration should not be confined to the likely impacts on the immediate

geographical area in which the proposed activity would occur. The court looked to the whole undertaking of which the activity formed a part in order to understand its cumulative and continuing effect. 65 This approach, however, cannot be used to diminish the significance of likely impacts. 66 Nor, of course, is it relevant that the zoning of the area permits the activity without the need for development consent. 67 A determining authority may select the activity it proposes to assess, 68 but the activity cannot be erroneously described so as to lessen its likely impacts.69 The likelihood of significant environmental effects should be determined having regard to the 'raw' activity, not the activity as proposed to be conditioned or modified by the determining authority. In Drummoyne Municipal Council v Maritime Services Board,7° the officer who assessed the proposal determined that the marina extension as proposed would be likely to significantly affect the environment. However, the likely effects could be avoided by the imposition of conditions. Conditional approval was granted without obtaining and considering an EIS. The LEC held that the approval was invalid.71 Of course, and desirably, the proponent should consider environmental impacts from an early stage of concept development and option selection, incorporating ameliorative measures into the proposal. 72

Species impact statements The requirement for an SIS under Pt 4 and Pt 5 is triggered if the proposal: • is on land that is, or is a part of, critical habitat; or • is likely to significantly affect threatened species, populations or ecological communities, or their habitats. (EPAA ss 78A(8), 112(1B)) The requirement does not apply to State significant development or State significant infrastructure (ss 79A(8), llSZF(l)). The terms critical habitat and threatened species, populations or ecological communities take their meaning from the TSCA and the FMA (EPAA s 4(1)). They are identified and listed under those Acts: see Chapter 10. For the purpose of the EPAA, a reference to 'threatened species, populations and ecological communities' does not include a reference to any vulnerable ecological community. This exclusion does not apply to any threatened species or endangered population that forms part of a vulnerable ecological community (EPAA s SD).

65 55 56

57 58 59 60 61 62 63 64

The seminal legislation was the US National Environmental Policy Act of 1969 (NEPA), which uses the same language to trigger environmental assessment. Jara sius v Forestry Commission of NSW (1988) 71 LGRA 79; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186; Oshlack v Richmond River Shire Council and Iron Gates Development Phj Ltd (1993) 82 LGERA 222; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [84]. Elliot, above n 23 at 182-183. Department of Urban Affairs and Planning Guideline, above n 41, at 48. But see Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 93. (1989) 67 LGRA 200. 471 F 2d 823 (1972). Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257. See Brian Preston, 'The EIS Threshold Test: When is an Activity Likely to Significantly Affect the Environment' (1990) 7 EPLJ 147 at 158. (1982) 47 LGRA 35.

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But see SHCAG Pty Ltd v Hume Coal PhJ Ltd [2015] NSWLEC 122 at [117], (183] and (255]-(256] per Pain

J. 66 67 68 69 70 71

72

Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79; Bailey v Forestry Commission of NSW (1989) 67 LGRA200. Bailey v Forestry Commission of NSW (1989) 67 LGRA 200. Prineas v Forestry Commission of NSW (1984) 53 LGRA 160 (CA). Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265. (1991) 72 LGRA 186. Ibid. See also Enfield CihJ v Development Assessment Commission (1996) 91 LGERA 277 at 300. This approach was not followed by the Court of Appeal when deciding whether a modification under Pt 5 eliminates or reduces the detrimental effect of a proposal. In this context it is the conditional change that is to be tested: Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 at [81] per Mason P (Sheller JA agreeing). See Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council (2010] NSWLEC 48 at (83]; SHCAG PhJ Ltd v Hume Coal Pty Ltd [2015] NSWLEC 122 at [154]; Smyth v Nambucca Shire Council (1999) 105 LGERA 65 at [10]; Eastlakes Golf Club v Botany Bay City Council (2006] NSWLEC 343 at (62].

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An SIS may have to be prepared if, after lodging the development application, there is a new listing of an endangered species, population or ecological community. 73 The list for vulnerable species, however, is frozen for a period of 12 months from the time a valid application is lodged (s lOSA). Judicial interpretation of the term 'likely to significantly affect the environment', as earlier discussed, is also relevant to deciding whether an SIS is required. In particular, an approach based on the precautionary principle is appropriate. 74 Guidelines prepared by the then Department of Environment and Climate Change NSW state: If information is not available to conclusively determine that there will not be a significant impact on a threatened species, population or ecological community, or its habitat, then it should be assumed that a significant impact is likely and a species impact statement should be prepared.75 In addition, EPAA s SA(2) sets out a list of mandatory considerations to assist in deciding whether effects are likely to be significant. The s SA considerations are more generally relevant to decision-makers in their consideration and determination of development proposals, and in deciding whether consultation or concurrence is required. EPAA s SA requires the following to be taken into account: 76 • in the case of threatened species and endangered populations, whether the action proposed is likely to have an adverse effect on the life cycle of the species or population such that a viable local population of the species is likely to be placed at risk of extinction; • in the case of an endangered or critically endangered ecological community, whether the action proposed is likely to: - have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or - substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction; • in relation to the habitat of a threatened species, population or ecological community: - the extent to which habitat is likely to be removed or modified as a result of the action proposed,77 and whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and the importance of the habitat to be removed, modified, fragmented or isolated to the long-term survival of the species, population or ecological community in the locality;

• whether the action proposed is likely to have an adverse effect on critical habitat (either directly or indirectly); • whether the action proposed is consistent with the objectives or actions of a recovery plan or threat abatement plan; • whether the action proposed constitutes or is part of a key threatening process or is likely to result in the operation of, or increase the impact of, a key threatening process. 78 Section SA is colloquially referred to as the 'seven-part test'. It originally comprised eight components. The complexity of the original test led to its amendment, bringing the scale of assessment down to the local level and providing more comprehensive tests for endangered ecological communities and the assessment of impact on habitat. The expression 'seven-part test' is misleading. Section SA does not prescribe a test, but rather a set of factors that must be taken into account in arriving at a conclusion as to whether there is likely to be a significant effect on threatened species, populations or ecological communities or their habitat. 79 The LEC has recognised that the question is not answered by finding a positive answer to one or more of the factors; nor is a negative answer required if only one of the factors carries an affirmative answer. 80 Furthermore, s SA does not exhaust the inquiry. There may be other relevant factors and circumstances which are not specifically referred to ins SA. 81 Cumulative impact is a relevant matter. 82

Failure to prepare an EIS or SIS Failure to obtain an EIS or SIS, and to do so before the public participation process, will invalidate any consent granted. 83 In Helman v Byron Shire Council, 84 the Court of Appeal held that public participation requirements are in the nature of a condition precedent to any consideration of a development application, and reception of impact assessment documents cannot bypass the participation process. Further, the LEC has held that it is not appropriate to suspend a declaration of invalidity under s 2SB of the Land and Environment Court Act 1979, as the effect of a failure to lodge an impact statement is that a fundamental requirement is outstanding. 85 Until the requirement is complied with, there are crucial issues that cannot be resolved. Helman's case was approved in Timbarra Protection Coalition Inc v Ross Mining NL, 86 where the Court of Appeal held that the question whether an SIS is required under Pt 4 78 79 80

73 74

75

76 77

Corowa v Geographe Point Phj Ltd [2007] NSWLEC 121 at [49]-[50]; Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [82]. BT Goldsmith Planning Services v Blacktown City Council [2005] NSWLEC 210; Gales Holdi11gs Pty Ltd v Tweed Shire Council [2006] NSWLEC 85; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 212. See also Providence Projects Phj Ltd v Gosford CihJ Council (2006] NSWLEC 52. NSW Department of Environment and Climate Change NSW, Threatened species assessment guidelines: The assessment of significance {August 2007), (accessed 1 November 2015} at 12. OEH has assessment guidelines to assist in the interpretation and application of the factors; see ibid. These must be taken into account: s 5A(l)(b). A quantitative approach based on the size of the area is not appropriate: BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [80]-[82].

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81 82 83 84 85 86

'Key threatening process' has the same meaning as in the TSCA and Pt 7A of the FMA. The approach to assessing likely significant effect is summarised by Preston CJ in Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council [2010] NSWLEC 48 at [81]-(86]. Plumb v Penrith City Council [2002] NSWLEC 223 at [36]-[37]; Masterbuilt PhJ Ltd v Hornsby Shire Cou11cil (2002] NSWLEC 170; Carstens v Pittwater Council (1999) 111 LGERA 1 at [59]-[61]; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85. Plumb v Penrith City Council [2002] NSWLEC 223 at (37]; Newcastle and Hunter Valley Speleological Society lllc v Upper Hunter Shire Council (2010] NSWLEC 48 at [85]. BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210. Helman v Byron Shire Council (1995) 87 LGERA 349 (fauna impact statement). See also Botany Bay City Council v Rema th Investments No 6 Pty Ltd (2000) 111 LGERA 446. Ibid. Coifs Harbour City Council v Arrawarra Beach Pty Ltd (2006] NSWLEC 365. (19_99) 46 NSWLR 55. See also Plumb v Penrith City Council [2002] NSWLEC 223; Corowa v Geographe Pomt Pty Ltd [2007] NSWLEC 121; Na111b11cca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38.

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is a jurisdictional fact. This means that the consent auth~rity's decis~on as to whet~er a proposal is likely to significantly affect threatened species, populations or _eco~ogical communities, or their habitats, is provisional in the sense that, on an apphcat10n for review in the LEC's class 4 jurisdiction, it is for the court to decide the question de nova. The court does not ask whether the consent authority's decision was reasonably open, but rather must decide for itself whether an SIS i~ required. To this end t~e court receives fresh evidence which, subject to the rules of evidence, may be more or different from the material considered by the consent authority.B7 Further, the High Court has rejected a doctrine of deference to the administrator's finding.BB This intei:se standard of review displaced the more deferential approach which the LEC had previously taken. An important justification is the pivotal role that an SIS plays in enhancin~ the qual~t~ of decision-making by ensuring that detailed information is available to pnmary decisionmakers in a systematic and ordered way.B9 The same reasoning no doubt applies to characterisation of designated development,90 as well as to the requirements for EISs and SISs under Pt 5.91 The LEC has now clarified that the requirement for an EIS under Pt 5 s 112 is indeed a jurisdictional fact that the court must determine for itself on all the available evidence, including expert evidence tendered by the parties.92 Although a jurisdictional fact, the court has held that the onus remains with the applicant for 93 review to prove that the activity is likely to significantly affect the environment. !f the precautionary principle is invoked, the two conditions precedent must be established before any onus shifts to the respondent. 94 . In contrast, the Court of Appeal in Cranky Rock Road Action Group Inc v Cowra Shire Council9s has upheld the LEC's rulings that development consent is not invalid where the application is not accompanied by the documents specified in EPAR Sch 1, ~ncluding a SEE. The legislative intention that this is so is derived from the marked differences between the requirements for an EIS and SIS, on the one hand, and those for a SEE, on the other.96 The differences lie in the legislative source of the obligations and the nature and degree of prescription, together with the consequence that a SEE is a l