The environmental law handbook : planning and land use in NSW [Sixth edition.] 9780455236124, 0455236127

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Twenty-three specialists in environmental law share the writing, building on the work of previous editions, and working under the editorship of Dr Peter Williams from the Faculty of the Built Environment at the University of New South Wales. These barristers, solicitors, professors, academics and policy makers apply their wealth of practical experience and knowledge to offer a clear account of the law applying to environmental planning and protection in NSW. Those familiar with earlier editions will find that the book has been heavily reorganised and rewritten, and redesigned for easier location and use of content. New content includes: New chapter on climate change and energy. Extensive revision of pollution law with inclusion of significant new and updated material following a range of statutory amendments and new case law. Extensively revised discussion on forestry and plantations, agriculture, water supply and catchment management regimes. Major rework of treatment of land use planning, development and biodiversity. Thorough updating for judicial interpretation and legislative change. A handbook for practising lawyers and for students, the careful balance of clarification and detail also makes the text more widely useful. Planners, engineers and environmental scientists, as well as those involved in environmental or community causes and who seek a good grasp of the legal responsibilities of those overseeing a complex network of rights and regulations, will find The Environmental Law Handbook a valuable resource. Contents: The structure and scope of environmental law

Agriculture

Building blocks of environmental law

Biodiversity

Land use planning

Forests and plantations

Crown land and protected areas

Coastal and riverside land

Development NSW environmental assessment

Water supply

Commonwealth environmental assessment and approval

Catchment management Heritage conservation Mining

Local government

Fisheries and aquatic e.cosystems

Pollution control and waste disposal

Aboriginal land and heritage in NSW

Climate change and energy

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IS BN: 978-0-455-236117

© 2016 Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 For further information visit: www.thomsonreuters.com.au Proudly printed in Australia

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9 780455 236117

E ~RS

ENVIRONMENTAL LAW HANDBOOK 6th Edition

Edited by Peter Williams

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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The Environmental Law

Handbook Planning and Land Use in NSW

Edited by

Peter Williams Faculty of the Built Environment University of New South Wales

SIXTH EDITION

THOMSON REUTERS 2016

Published in Sydney by

Preface

Thomson Reuters (Professional) Australia LimitedABN 64 058 914 668 19 Harris Street, Pyrmont, NSW First edition 1988 Second edition 1993 Third edition 1999 Fourth edition 2006 Fifth edition 2011 This edition 2016 The Cataloguing-in-Publication entry is available from the National Library of Australia 9780 455 236 11 7 © 2016 Thomson Reuters (Professional) Australia Limited 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. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to [02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General's Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Karen Knowles Publisher: Robert Wilson Editor: Julie Pak Printed by Ligare Pty Ltd, Riverwood, NSW

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Commentary on The Environmental Law Handbook must commence with acknowledgment of the many years of dedicated contribution and service of David Farrier, Emeritus Professor of Law at the University of Wollongong. David has been the heart and soul of this book, stretching back before publication of the first edition in 1988. Having now relinquished the editing of this book to lesser hands, I feel it would be David's wish that an account of the history, the lineage of this book, not be lost. For this reason parts of the Preface to the fifth edition of the book, which outlines its history, remains intact here. This is a book with a long history. In 1981-82, the NSW Department of Environment and Planning gave grants under the National Estate Program to the National Parks Association and the recently formed Environmental Law Association of New South Wales for the development of a Citizens' Guide to the Protection of the Environment. The carriage of the book was undertaken by the Community Liaison Committee of the Environmental Law Association. Those involved with the early project believed that there were obligations on people working in the field of environmental law to help demystify the legal process and make it more accessible to the general public. The Committee found itself faced with an enormous research task, especially as many of the areas to be covered had had little research done on them. A great deal of useful background material was produced, but David Farrier eventually took over the research and writing of what was to become The Environmental Law Handbook in 1984. The first edition under his authorship appeared in 1988, and the second in 1993. By the time of the third edition in 1999, he was happy to share the updating and writing with three other authors: Rosemary Lyster, Linda Pearson and Zada Lipman, with Rosemary Lyster undertaking the bulk of the revision. The fourth edition, which appeared in 2006, was based on an even more extensive collaboration than the third. NSW environmental legislation was becoming increasingly complex, with a growing number of judicial decisions elaborating on the bare bones of legislation. In light of this, the only option was to draw on specialist skills, and to assign the revision and writing of particular chapters to authors with particular expertise. In addition the book was expanded to include much fuller coverage of particular areas (forestry, land rights arid native title, local government and catchment management), and a brand new chapter on fisheries management. As a result, this edition, edited by David Farrier and the Hon Paul Stein QC AM, was based on major contributions from over twenty authors, drawn from both academia and the practicing legal profession, and support from others. This approach was again taken in 2011 with the fifth edition. This edition involved the participation of twenty authors, effectively coordinated by Robert Wilson of Thomson Reuters. While some were new, many continued their involvement from the fourth edition. A new chapter on energy was added and closer attention was paid to issues of climate change in other chapters. In addition chapters were better integrated through fuller cross-referencing and removal of duplication. The current edition continues the approach adopted in the fourth and fifth editions. As the complexity of environmental law has grown, so has the number of specialist authors required for this edition. Thankfully, coordination of the twenty-three authors was commendably handled by Karen Knowles, and the detailed editing of their contributions expeditiously completed by Julie Pak, of Thomson Reuters. As a result the same rigorous and professional management and editing process employed in the fifth edition has been maintained.

. The Environmental Law Handbook Vl

As before, while the patience of chapter authors has undoubtedly been tested, they have been wonderfully responsive and supportive. The dedication of what are essentially a group of volunteers, all experts in their field, has been quite exceptional. They have continued the legacy of The Environmental Law Handbook, making a lasting contribution to the propagation and development of environmental law in NSW, ensuring that it is not the exclusive preserve of legal practitioners. At the same time, the sixth edition builds on the work of previous editions, and the current editor and authors are deeply indebted to those who have worked on the book in the past. While updating the law is a time-consuming and painstaking exercise, it has been made very much easier by the fact that we have had firm foundations to build on. We acknowledge the continuing contribution of previous authors. Once again environmental law as it applies in NSW has continued to grow apace. This development and change shows no sign of relenting. Literally days prior to this book going to print, new legislation was being introduced or in the pipeline. In mid-November 2015, the New South Wales Parliament passed the Greater Sydney Commission Act 2015, though at time of writing this legislation had not yet commenced. This will have significant implications on strategic planning and to a slightly lesser extent on development assessment, not just in Sydney, but quite possibly other areas in the State. Further changes in the form of the NSW Coastal Reforms and the Biodiversity Legislation Review for example, are in the wind. Reflecting the growth in environmental law, a new Chapter 10, Climate change and energy, has been added, and climate change has been paid closer attention in a number of other chapters. While the issue of climate change mitigation and adaptation is pervasive and the law which bears on it cannot be contained within a neat category of climate change law, it clearly needed specific treatment in its own chapter. In addition several chapters have been significantly reorganised and rewritten to make material more accessible, in particular Chapters 14 (Coastal and riverside land) and Chapter 3 (Land use planning). All chapters have been revised to take account of recent departmental restructuring which has caused shifts in administrative responsibilities and changes to the law. In the case of a number of chapters this has involved substantial rewriting. Chapter 9 (Pollution) has seen the inclusion of significant new and updated material caused by a range of statutory amendments and new case law. Reforms related to natural resources and water in the form the creation of Local Land Services, the abolition of catchment management authorities and the Sydney Catchment Authority, and the establishment of Water NSW had significant implications for a number of chapters, including Chapter 11 (Agriculture), Chapter 15 (Water supply) and Chapter 16 (Catchment management). As David Farrier noted in his Preface to the fifth edition, the book is gradually creeping beyond its origins in NSW law relating to planning and land use. Incorporation of Commonwealth legislation and case law, as it impacts on NSW, has become essential in order to give a complete picture of environmental law in this State. So, for example, chapters such as Chapter 4 (Crown land protected areas), 12 (Biodiversity), 13 (Forests law), 14 (Coastal and riverside land) and 19 (Fisheries and aquatic ecosystems) include significant sections on relevant Commonwealth law. Law relating to planning and land use in NSW however remains the books central focus. Land use is, in essence what most terrestrial environmental law is all about. Even those areas of law that appear to focus on the use of air and water are intimately concerned with the planning and regulation of land use. However, the Environmental Planning and Assessment Act 1979, the legislation that deals with environmental planning and development control, is only the tip of the iceberg when it comes to the planning and regulation of land use. This notion of the breadth of environmental law has sought to be captured at the beginning of Chapter 1 (The structure and scope of environmental law). The interrelationships between the processes set up under this legislation, on the one hand, and processes in other legislation relating to the use of land and water, are complex. However, they are a sad inevitability in

Preface

a world of multiple government departments with overlapping interests in environmental management, each with a deep-seated need to have its 'own''legislation. This book is the only one to contain a detailed treatment of these interrelationships. This edition of the book will hopefully continue to be a valuable jumping-off point for practising lawyers and law students. At the same time, it aspires to make the detail available in a form that is accessible to those with no specialist legal training. The book attempts to make the law accessible while not shying away from its complexity. For those involved in environmental or community groups, the book is not merely background reading but is designed to answer questions such as:

•

What procedures do government decision-makers have to follow before reaching a decision?

• What powers do particular government bodies have to prevent an environmentally harmful activity •

from proceeding? What rights do I have in this context?

For those public officials, such as planners, engineers and environmental scientists, who actually make decisions or exercise powers within legal frameworks, the book offers an opportunity to see their own particular powers and responsibilities within a broader and more complex whole. It may also assist in law reform by pointing out where the law is inadequate, or unclear. As students from a wide range of disciplines also use the book, an extensive overview of environmental law is provided in Chapters 1 and 2. The authors and editor hope that the book, with its detailed treatment of environmental law in NSW, will continue to provide a more detailed companion to other environmental law texts. I concur with David Farrier's observation in the fifth edition that environmental law in NSW is far more complicated than it needs to be. It consists of layers that have been built on top of each other, starting around the beginning of last century. The early layers dealt with different resources segmentally, in different pieces of legislation. Beginning in 1979 with the Environmental Planning and Assessment Act, we have seen attempts to integrate these diverse streams into a coherent whole. But the promise of this legislation has been cruelly spoilt by NSW governments which have frequently found procedures in legislation which they themselves put through the NSW Parliament to be inconvenient in practice. As a result, it has been amended on a piecemeal, largely unprincipled basis as the need has been perceived to exist. A consistent theme has been the watering down of provisions designed to give environmental protection and conservation a substantial status in government decision-making processes, provisions allowing public participation in decision-making processes and provisions giving objectors to development access to the courts. In essence, the objective has been to facilitate further development. Much of this was evident in the ill-fated Planning Bill 2013. Environmental law in NSW therefore, unlike many other fields of law, has been fraught with unending statutory change. The promise of a once pristine Environmental Planning and Assessment Act has been lost, overwhelmed by the myriad of reforms that have occurred since its commencement in 1980. For many long-suffering practitioners and participants, the NSW planning system has for some years been plagued by 'reform fatigue'. In some instances reforms are introduced to try to cover over the adverse consequences of earlier reforms. Unfortunately the pace of reform - essential or otherwise - is showing no sign of abating, as alluded to earlier in this Preface. As David Farrier stated in concluding his Preface to the last edition, I

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The Environmental Law Handbook

Vlll

would like to thank all of those who have been involved in capturing the version of the environmental law that exists at the time of writing.

Peter Williams December 2015

Using this book While every effort has been made to ensure that the information in this book is as up to date and accurate as possible, readers must seek detailed expert advice before acting upon it. Unlike traditional areas of law such as contract and property law, environmental law is constantly shifting as Parliaments strive to address through new and amending legislation ever-changing perspectives on environmental issues and their significance while pursuing developmental imperatives. The precise limits of environmental law are also contested, and as readers move away from its central concerns, they should look beyond this book. The Environmental Law Handbook is intended as a guide. Although it contains a very detailed discussion of some areas, particularly NSW land use law, it should not be used as a substitute for legal advice. The authors and publisher accept no responsibility for any loss or damage caused as a result of any information contained in, or omitted from the book. Each author has striven hard to summarise New South Wales legislation as it existed in late 2015. There is one significant qualification to this. On 12 November 2015 the NSW Parliament passed the Greater Sydney Commission Act 2015, which received assent on 19 November 2015. This was enacted just as the book was about to go to Press, although at the time of writing it had still not commenced. The Greater Sydney Commission Act, when it comes into force, will herald a number of changes, the most significant being the creation of the Greater Sydney Commission which will take on a number of planning and development assessment responsibilities, and the insertion of a new Part 3B - Strategic Planning, into the

Environmental Planning and Assessment Act 1979. While every effort has been made to cover Commonwealth legislation relevant in NSW, the main focus has been on the primary Commonwealth environmental legislation relevant to land use, the Environment Protection and Biodiversity Conservation Act 1999. Readers are encouraged to visit the relevant Commonwealth Government Department websites for up-to-date information on evolving issues in which the Commonwealth Government and Parliament is playing a role. Departmental and Ministerial responsibilities A number of major changes to the constitution and responsibilities of NSW Government Departments have occurred since publication of the previous edition of this book. The Department of Planning and Infrastructure became the Department of Planning and Environment in April 2014. It is the lead agency in the NSW Government's "Planning and Environment cluster", which includes the Department of Planning and Environment, the Office of Environment and Heritage and the Office of Local Government. Ministerial portfolios within the cluster are the Minister for Planning, the Minister for the Environment (also Minister for Heritage and Assistant Minister for Planning), and the Minister for Local Government. The NSW Environment Protection Authority, whose functions had been absorbed into larger government agencies b~tween 2003 and 2012 (most recently the Office of Environment and Heritage) was re-established as an independent statutory authority within the portfolio of the Minister for Environment in February 2012. Local Land Services commenced operation on 1 January 2014, bringing together the functions and activity of Catchment Management Authorities, Livestock Health and Pest Authorities and some agricultural extension and advisory services of the Department of Primary Industries. The responsible Minister for Local Land Services is the Minister for Primary Industries and Minister for Lands and Water.

The Environmental Law Handbook

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Catchment Management Authorities were abolished in January 2014 and their functions assumed by Local Land Services. The NSW Office of Water was replaced by the Department of Primary Industries - Water in July 2015. Water NSW was established and commenced operations on 1 January 2015. Water NSW replaced the Sydney Catchment Authority and State Water (that is, the State Water Corporation), which continues as a legal entity, but with the new corporate name of Water NSW.

Acknowledgments This is a book with a long history, to which many have contributed. Professor Donna Craig was the convenor of the Community Liaison Committee of the NSW Environmental Law Association which commenced the project in the early 1980s. Bruce Woolf, Jeremy Carew-Reid, Jeff Angel, Peter Hume, Rod Hayes, Neva Wendt, Peter Prineas, Penny Van Oosterzee and Danny Wiggins were particularly active in supporting the work leading to the first edition in 1988 under the authorship of David Farrier. By the third edition, published in 1999, David Farrier had been joined as co-authors by Professor Rosemary Lyster, who took responsibility for revising what are currently chapters 1, 2, 4, 6, 7, 11, 12, 14 and 17; Linda Pearson (now a Commissioner at the Land and Environment Court), who took responsibility for revising chapters 3 and 5 and Professor Zada Lipman who took responsibility for revising what is now chapter 9. The fourth and fifth editions edited by David Farrier and Paul Stein, contained contributions from a number of authors, many of whom have revised their chapters for this sixth edition. While their names appear at the head of each chapter, all acknowledge the debt they owe to authors and contributors to the first five editions. Some of this earlier work continues to appear in this edition despite the massive changes in New South Wales environmental law which have taken place over the life of the book. In addition to the authors of the third edition, noted above, I would like to thank people who have, throughout the life of the book, contributed in varying ways, including providing research assistance, reviewing chapters, responding to questions and editing, or as authors of earlier editions.

They include Ananya Agarwal, Bethany Austin, Stephen Berveling, Professor Ben Boer, Lindsay Brooker, Ian Close, Ian Clyde, Andrew Dalton, Dr Freya Dawson, Laurie Derwent, Rolf Goodacre, Tracy Goulding, Megan Hawley, Ray Jerems, James Johnson, Ian Johstone, Chris McElwain, Elizabeth Favaloro, Natasha Hammond-Deakin, Sue Higginson, Garth Holmes, Kate Marshall, Aideen McGarrigle, Debbie McLaughlin, Duncan Mcluckie, David Mossop, Dr Carla Mooney, Katrina Moore, Melinda Murray, Angela Nanson, Elisa Nicols, Greg Niven, Chris Norton, Lisa Ogle, Lorain Ogle, Margaret Ogle, Howard Reed, Stuart Simington, Jessica Simpson, Chris Smith, Peter Sobinoff, Lynne Spender, Linda Steele, Gina Studencki, Dr Lindsay Taylor, Professor Martin Tsamenyi, Gillian Walker, Rachel Walmsley, Phil Watson, Stefani White, Graeme Wiffen and Bruce Woolf. I thank all of you in contributing to what has been a wonderful collaborative process over the years. If I have missed anybody, I profoundly apologise. Finally, the editor and authors would like to thank our Product Developer at Thomson Reuters, Karen Knowles for driving the publication of this edition, and for her patience, organisation ability and commitment during the course of the book's production. Special thanks also are due to our editor, Julie Pak for her professionalism, efficiency, hard work and attention to detail.

Table of Cohtents Preface ............................................................................................................................................................................................................. v Using this book ....................................................................................................... ................................................................................... ix Acknowledgments .................................................................................................................................................................................. xi Chapter 1: The structure and scope of environmental law .................................................................................. 1 Dr Peter Wi/Jioms

What is environmental law? ....................................................................................................................................................... [l.20J The focus of environmental law ............................................................................................................................................. [l. l 50J Ecologically sustainable development ................................................................................................................................ [l. l 90J How environmental law works ............................................................................................................................................... [l.250J Land tenure ....................................................................................................................................................................................... [l.310J Sources of environmental law ................................................................................................................................................. [l.430J Chapter 2: Building blocks of environmental law .................................................................................................. 31 Dr Peter Williams

Planning by private agreement ................................................................................................................................................. [2.20J The law of nuisance ...................................................................................................................................................................... [2. l 50J Planning .............................................................................................................................................................................................. [2.250J Administrative law ........................................................................................................................................................................ [2.350J The role of criminal law ............................................................................................................................................................... [2.550J Economic instruments ................................................................................................................................................................ [2.720J The role of the courts .................................................................................................................................................................... [2.730J Chapter 3: Land use planning ............................................................................................................................................ 89 Amelio Thorpe

Plans and plan making ................................................................................................................................................................... [3.20J Local Environmental Plans .......................................................................................................................................................... [3.90J How LEPs are made ..................................................................................................................................................................... [3.280J State environmental planning policies ............................................................................................................................... [3.380J How SEPPs are made ................................................................................................................................................................. [3.590J Challenging the validity of plans ............................................................................................................................................. [3 .51 OJ Development control plans and council policies ............................................................................................................ [3.570J Identifying the relevant planning controls ........................................................................................................................ [3. 71 OJ Chapter 4: Crown land and protected areas ........................................................................................................... 131 Louise Byrne

Assessment and disposal of Crown land in NSW .......................................................................................................... [4.30] Dedication and reservation ....................................................................................................................................................... [4.100] Development in reserved areas ............................................................................................................................................. [4.320J Management plans ....................................................................................................................................................................... [4.490] Commonwealth protected areas ........................................................................................................................................... [4.510J

. The Environmental Law Handbook XlV

Chapter 5: Development ..................................................................................................................................................... 15 7 Dr Peter Williams

Introduction ........................................................................................................................................................................................... [5.20] When is development consent required? ............................................................................................................................ [5.50] Legal classification of development ..................................................................................................................................... [5.270] Nonconforming uses .................................................................................................................................................................... [5.410J Development applications ......................................................................................................................................................... [5.57 0] Who makes the decision? ......................................................................................................................................................... [5.830J Public participation ........................................................................................................................................................................ [5.910J Making the decision ................................................................................................................................................................... [5. l l 80J Development consents ............................................................................................................................................................ [5.1500J Development contributions ................................................................................................................................................... [5.188 0] Reviews and appeals ................................................................................................................................................................ [5.2220J Modification, revocation and lapsing of consent ........................................................................................................ [5.2 31 OJ Enforcement of consents ........................................................................................................................................................ [5.25 00J State significant projects ........................................................................................................................................................ [5.2690] Chapter 6: New South Wales environmental assessment .......................................................................... 275 Emily Ryon

Table of Contents

Chapter 9: Pollution control and waste disposal... .................................................................................:............ 353 Sarah Wright

•

Approaches to pollution control ................................................................................................................................................. [9.20] Role of the Commonwealth .......................................................................................................................................................... [9 .40] Chemicals ........................................................................................................................................................................................... [9 . l 20J Dangerous goods ........................................................................................................................................................................... [9.520J The Protection of the Environment Operations Act .................................................................................................... [9.550] Marine pollution ........................................................................................................................................................................... [9.2140] Waste management ................................................................................................................................................................. [9.2390J Contaminated sites .................................................................................................................................................................... [9.2670] Chapter 10: Climate change and energy .................................................................................................................. 46 7 Ilona Mi/Jar, Kylie Wilson, Rosemary Bullmore

Greenhouse gas emissions ...................................................................................................................................................... [10.20J Climate change ................................................................................................................................................................................ [10.40J Energy ............................................................................................................................................................................................... [10.320] Chapter 11: Agriculture ...................................................................................................................................................... 501 Gi/Jion Duggin

Introduction ........................................................................................................................................................................................... [6.20] When does Part 5 apply? ............................................................................................................................................................. [6.30] Decision-makers under Part 5 ................................................................................................................................................ [6. l 20J Environmental impact assessment ..................................................................................................................................... [6.160] The decision-maker ....................................................................................................................................................................... [6.3 1 O] Monitoring .......................................................................................................................................................................................... [6.350] Enforcement ..................................................................................................................................................................................... [6.360J

Environmental planning controls ........................................................................................................................................... [l l .20J Leases and licences of Crown land ................................................................................................................................... [11 .16 O] Local Land Services ................................................................................................................................................................... [l l.290J Clearing and cultivation ........................................................................................................................................................... [11 .3 50] Soil conservation ......................................................................................................................................................................... [11.440] Pest and weed management ............................................................................................................................................... [l l.520J Genetically modified organisms ...................................................................................................................................... [l l.1090J

Chapter 7: Commonwealth environmental assessment and approval ................................................. 295

Chapter 12: Biodiversity .................................................................................................................................................... 545

Dr Emma Carmody

David Robinson, Jonathon Blond

Controlled actions .............................................................................................................................................................................. [7.20] Matters of national environmental significance ............................................................................................................... [7.40J World Heritage properties ........................................................................................................................................................... [7.50J Matters of Commonwealth responsibility ........................................................................................................................ [7.300] Exemptions ......................................................................................................................................................................................... [7.330] Determining likely significant impact .................................................................................................................................. [7.460J The assessment process ........................................................................................................................................................... [7.560] Strategic assessment .................................................................................................................................................................. [7.650] Approvals ........................................................................................................................................................................................... [7.680J Public participation ........................................................................................................................................................................ [7.750J Government action ..................................................................................................................................................,. ..................... [7.890]

Overview ............................................................................................................................................................................................. [12.lOJ International treaties ................................................................................................................................................................... [12. 3 OJ Commonwealth framework ................................................................................................................................................... [12.100] NSW biodiversity legislation ................................................................................................................................................ [12.360] Protected native animals and plants ............................................................................................................................... [12.710] LEPs and SEPPs ......................................................................................................................................................................... [12.860] Trees in urban areas ................................................................................................................................................................. [12.980] Development control and offsetting .............................................................................................................................. [12.1070J Clearing native vegetation .................................................................................................................................................. [l 2.l 350J Noxious weeds ········································································································································································· [12.1560J Voluntary conservation of private land ........................................................................................................................ [12.1580J

Chapter 8: local government .......................................................................................................................................... 329

Chapter 13: Forests and plantations law ................................................................................................................. 621

Dr Andrew H Kelly, Dominic J Crinnion

Local government's power and responsibility .................................................................................................................... [8.20J Plans, strategies and programs ............................................................................................................................................. [8.1 OOJ State of the environment reports .......................................................................................................................................... [8.150] Community and operational land .......................................................................................................................................... [8. l 80J Amalgamation of councils ......................................................................................................................................................... [8.370J Constitutional recognition of local government ............................................................................................................. [8.380J

Dr Jomes Prest

Commonwealth law ...................................................................................................................................................................... [13 .20J NSW forestry law ...................................................................................................................................................................... [13.130] Forestry certification .............................................................................................................................................................. [13. l 060] Electricity generation from native forest feedstock .............................................................................................. [13. l 070J Chapter 14: Coastal and riverside land ..................................................................................................................... 669 Rosemary Bullmore

Laws that protect the coastal zone ....................................................................................................................................... [14.20] The Coastal Zone ............................................................................................................................................................................ [14.40J Planning requirements in coastal areas ........................................................................................................................ [14.160]

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Other policies and agency responsibility ........................................................................................................................ (14.5 3 0] Threatened species and Ramsar wetlands .................................................................................................................. (14.640] Development below high water mark .............................................................................................................................. (14.680] The Coastal Protection Act 197 9 ...................................................................................................................................... (14. 71 O] Accretion and erosion ............................................................................................................................................................... (14.840] Development on floodplains .................................................................................................................................................. (14.870] Rivers and lakes ....................................................................................................................................................................... (14.1040] Extractive operations ............................................................................................................................................................. (14.1250] Acid sulfate soils ...................................................................................................................................................................... (14.1290] Reclamation and dredging .................................................................................................................................................. (14.1340]

Chapter 15: Water supply ................................................................................................................................................ 723 Kathryn Ridge

Water resource management in NSW ............................................................................................................................. [15.20] National responses ....................................................................................................................................................................... [ 15.70] Water Management Act 2000 (NSW) ......................................................................................................................... (15.140] Licences ........................................................................................................................................................................................... [ 15.51 O] Approvals ........................................................................................................................................................................................ (15.710] Trading water ................................................................................................................................................................................ (15.740] Community participation ........................................................................................................................................................ (15.820] Irrigation areas ............................................................................................................................................................................. (15.850] Offences under the Water Management Act 2000 ............................................................................................... (15.940] The Sydney Water Catchment ........................................................................................................................................... [15.970] Water efficiency ....................................................................................................................................................................... (15.1020]

Chapter 16: Catchment management ........................................................................... ............................................ 763 Dr Peter Williams

Introduction ....................................................................................................................................................................................... [ 16. l O] Integrated catchment management .................................................................................................................................... [16 .30] Catchment Management Authorities .............................................................................................................................. [ 16. l 00] The Natural Resources Commission ............................................................................................................................... (16.170] Local Land Servi ces ................................................................................................................................................................... (16.210] Other legislation ........................................................................................................................................................................... (16.320] Conclusion ....................................................................................................................................................................................... (16.390]

Chapter 1 7: Heritage conservation ............................................................................................................................. 787 Judith Preston, Jeff Smith

The international framework ................................................................................................................................................... [17.20] The role of the NSW Government ........................................................................................................................................ (17.70] Environmental planning instruments .............................................................................................................................. [ 1 7 .61 O] State records ................................................................................................................................................................................. (1 7 .680] The National Trust ..................................................................................................................................................................... [17.690] Historic Houses Trust .............................................................................................................................................................. (17.700] The role of the Commonwealth ........................................................................................................................................... [17.710] Historic shipwrecks ................................................................................................................................................................... (17.940] Overseas Places of Historic Significance to Australia ........................................................................................... (17.950] Other legislation protecting heritage ................................................................................................................................ (17.960]

Chapter 18: Mining ............................................................................................................................................................... 827 Thomas Kwok, James Innes

Introduction ....................................................................................................................................................................................... [ 18.1 O] Minerals legislation ....................................................................................................................................................................... (18.90]

Table of Contents

Approvals under the Mining Act ......................................................................................................................................... (18.130] Where exploration or mining is restricted ...........:........................................................................................................ (18.240] Interaction with the planning legislation ........................................................................................................................ (18.430] Public and landholder participation ................................................................................................................................... [ 18.540] Agency involvement in decision-making ....................................................................................................................... (18.620] Compensating landholders .................................................................................................................................................... (18.670] Mine Subsidence Compensation ........................................................................................................................................ (18. 71 O] Non-mining development in mine subsidence districts ......................................................................................... (18.730] Protection of the Environment ............................................................................................................................................. (18.750] Offences and enforcement ..................................................................................................................................................... (18.840] Judicial processes under the Mining Act ........................................................................................................................ (18.930] Exploration and production of onshore petroleum .................................................................................................... (18.950] Petroleum and the planning legislation ....................................................................................................................... (18.1090] Offshore exploration and mining ..................................................................................................................................... [18.1150] Offshore petroleum exploration and production ..................................................................................................... (18.1240] Uranium mining and nuclear facilities ......................................................................................................................... (18.1270] Extractive industries .............................................................................................................................................................. (18.1280]

Chapter 19: Fisheries and aquatic ecosystems ................................................................................................... 887 Professor Wmwick Gullett

The development of fisheries law in NSW ........................................................ .............................................................. [19.30] Where do NSW fisheries laws apply? ............................................................................................................................... [ 19. 90] General fisheries management ........................................................................................................................................... [ 19.120] Recreational fishing ................................................................................................................................................................... [19.200] Indigenous fishing rights ......................................................................................................................................................... [19.270] Commercial fisheries management ................................................................................................................................. [19.320] Management strategies and environmental assessments ................................................................................ [19.560] Enforcement .................................................................................................................................................................................. (19.620] Aquaculture .................................................................................................................................................................................... (19.6 70] Protection of aquatic habitats .............................................................................................................................................. [ 19.81 O] Threatened species conservation ...................................................................................................................................... (19.910]

Chapter 20: Aboriginal land and heritage in NSW ............................................................................................ 929 Susan Phillips

Historical background .................................................................................................................................................................. [20. l O] The NSW Aboriginal Land Rights Act ................................................................................................................................ [20.70] Native title ...................................................................................................................................................................................... [20.220] Aboriginal cultural heritage protection in NSW ......................................................................................................... [20.720]

Table of Cases .......................................................................................................:.............................................................................. 973 Table of Statutes ............................................................................................................................................................................. 1003 Index ....................... ................................................................................................................................................................................. 1045

.. XVll

1 The structure and scope of environmental law Dr Peter Williams Faculty of the Built Environment University of New South Wales

What is environmental law? .................................................................................................................................. [1.20] The focus of environmental law ........................................................................................................................ [1.160] Ecologically sustainable development ........................................................................................................... [1.190] How environmental law works .......................................................................................................................... [1.250] Land tenure .................................................................................................................................................................. [1.31 0] Sources of environmental law ............................................................................................................................ [l .43 0]

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chapter l The structure and scope of environmental law

[1.40]

Environmental Planning and Protection

[1.1 OJ In NSW, environmental law is to be found mainly in State legislation, although the Commonwealth has some powers under the Constitution that have allowed it to intervene in particular areas which have been identified as involving the national interest. The role played by the common law is very limited.

NSW environmental law has its roots in urban land use planning law, pollution law, nature conservation law and natural resources law. In this Chapter:

• the question of what constitutes environmental law is addressed through considering a classification of the subject matter of this field of law • the basic structure and objectives of environmental law are outlined • the role of environmental law in achieving ecologically sustainable development is explored • the land ownership context in which environmental law operates is explained • the main sources of Australian environmental law are identified and its relationship to international environmental law clarified. Chapter 2 explores in more detail the building blocks of NSW environmental law.

What is environmental law? [1.20] Environmental law is a paradox. Despite constituting a highly specialised branch of law, it is also continuously expanding and evolving to cover ever-widening, yet overlapping, subject matter. This creates an increasingly complex - indeed intricate - field of law. Assistance in understanding the breadth of environmental law may be afforded by adopting an appropriate conceptual framework. One such explanatory framework is that provided in 1986 by the former Australian Environment Council (AEC}, a Ministerial Council comprised of the Commonwealth, state and territory ministers for the environment. The AEC has experienced several subsequent name changes, and is now called the National Environment Protection Council. The basic concept employed in this model is to perceive the body of environmental law in terms of its "protective component" and its "exploitative component".

The "protective component" may be described as those rules for the protection of our environment from undue degradation by human activity, and rules for the conservation of natural, built and cultural items within the environment. The "exploitative component" may be described as being those rules for the dispositioq of natural resources, and rules which promote, or facilitate, development activity. (Australian Environment Council, Guide to environmental legislation and administrative arrangements in Australia, AEC Report No 18 (1986) 2nd ed, Canberra, AGPS, p 6.) On the basis of this conceptualisation of protective and exploitative elements, the AEC divides the subject matter of environmental law into the following thematic groups (see Figure 1.1}:

• environmental planning and protection legislation • legislation concerning the conservation of natural and cultural resources • resource allocation legislation • development legislation.

Conservation of Natural and Cultural Resources

Disposition of Natural Resources

Development Legislation

Relying on this conceptual framework of protective and exploitative components as the basis of classification, a comprehensive list of environment legislation can be presented, and is briefly discussed below. This framework provides a context for gaining an appreciation of the breadth of this field of law - its legislation, relevant case law and related policy. Any attempt at categorisation is fraught with difficulty- the categories and examples presented are by no means exhaustive, and legislation often does not neatly fit into one category alone but rather overlaps. Nevertheless, this framework reveals the plethora of environmental laws and the interaction and interconnections between legislation.

Environmental planning and protection legislation [1.30] The generally accepted underlying philosophy in this branch of environmental law is that a balance should be maintained between the traditional right to use and develop private property with the need to maintain a reasonable level of environmental quality in the interests of the public, both present and future. It is this difference in philosophy which distinguishes measures for environmental planning and protection with legislation concerning the conservation of natural and cultural heritage within the overall body of environmental law.

Sub-groups of legislation comprised within the category of environmental planning and protection legislation are outlined below.

Land-use planning legislation [1.40] The Australian Environment Council (AEC) describes the lineage and form of this arm of environmental law in the following terms:

Legislation concerning the planning and control of land-use predates most other forms of environmental legislation in Australia by a considerable number of years. Land-use planning enactments were adopted by most States in the years immediately after the Second World War. Legislation has been modelled considerably upon British precedents and usually contemplates the zoning of land to identify appropriate and inappropriate forms of land-use, viz. uses which are prohibited, permitted or in need of planning consent. Land-use controls have provided the most common and basic method of regulation of development activity in Australia. (Australian Environment Council, Guide to environmental legislation and administrative arrangements in Australia, AEC Report No 18 (1986) 2nd ed, Canberra, AGPS, p 8.)

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Examples of land-use planning legislation in New South Wales include the Environmental Planning and Assessment Act 1979, Land and Environment Court Act 1979, Coastal Protection Act 1979 and Local Government Act 1993.

Environmental impact legislation

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designed to extend a special, protected status to these resources where they have been identified as possessing unique or distinctive characteristics. Examples include the National Parks and Wildlife Act 1974, Heritage Act 1977, Wilderness Act 1987, Threatened Species Conservation Act 1995, Nature Conservation Trust Act 2001 and Native Vegetation Act 2003.

[1.50] In NSW environmental impact assessment (EIA) procedures have been incorporated

within the land-use planning system, that is, within the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The primary EIA provisions are found in Part 5 of the EPA Act, although EIA requirements also apply to the category of designated development (within Pt 4 of the Act), State significant development (under Div 4.1, Pt 4) and State significant infrastructure (under Pt 5.1). EIA under Pt 5 of the Act may require an environmental impact statement (EIS), whereas an EIS is mandatory for the environmental assessment of designated development, State significant development and State significant infrastructure.

Resource-allocation legislation [1.11 OJ The underlying philosophy of this category of legislation was, historically, to regulate the grant of land to settlers, and more recently of utilisation of natural resources, including allocation of water rights, the taking of minerals, forestry, petroleum, fisheries and so on.

Pollution legislation

Arguably, in this category of law there has also been a significant response to emerging environmental awareness through amendments or complete revisions of such legislation, in order to qualify the fundamental policy of allocation and development, by requiring the assessment of environmental quality and conservation objectives. Examples include the Mining Act 1992, Forestry Act 2012, Water Management Act 2000 and Fisheries Management Act 1994.

[1.60] Examples of pollution legislation include the Protection of the Environment Administration Act 1991, Protection of the Environment Operations Act 1997 and Marine Pollution Act 2012.

Development legislation

Waste disposal legislation [1.70] Examples of waste disposal legislation include the Sydney Water Act 1994, the Hunter

Water Act 1991 and the Waste Avoidance and Resource Recovery Act 2001.

Hazardous substances legislation [1.80] Examples of NSW environmental legislation dealing with hazardous substances include

the Environmentally Hazardous Chemicals Act 1985, Radiation Control Act 1990 and the Contaminated Land Management Act 1997,

Integrated resource management legislation [1.90] A more recent sub-category of environmental planning and protection legislation may be

identified which seeks to integrate several branches of environmental law at both the strategic planning and development control levels. Early examples of this type of legislation include the Catchment Management Act 1989 and the Catchment Management Authorities Act 2003, both now repealed. A current example is the Local Land Services Act 2013.

[1.120] The common feature of this category of legislation is that it authorises or facilitates the carrying out of development proposals (normally of a major scale), by exempting or excluding the application of normal environmental controls falling within the environmental planning and protection category of legislation (see [1.30]) . Three distinct types of legislation are evident in this category, as outlined below.

l. Public development legislation [1.130] This involves the creation of a statutory authority which is vested with powers to undertake certain types of development, with the legislation often repealed once the authority is abolished and/or the subject development completed. Examples include the Sydney Cove Redevelopment Authority Act 1968, Darling Harbour Authority Act 1984, Sydney Harbour Authority Act 1984 and the Barangaroo Delivery Authority 2009.

2. Indenture or franchise agreement legislation [1.140] Development legislation of this type comprises acts which have been passed to give legal effect to agreements executed by a state government and a private developer. Such agreements involve a commitment by the developer to the project and by the government to the supply of necessary infrastructure, and often also providing for the grant of any requisite resource rights (for example land, water and minerals). Examples include the Sydney Harbour Tunnel (Private Joint Venture) Act 1987 and the Luna Park Site Act 1990.

Legislation for the consen,ation of natural and cultural resources

[1.150] This category of legislation is designed to facilitate development by catering for the

[1.100] The other "protective" component of environmental law is legislation that has as its principal objective the conservation of natural, built or cultural resources. Such legislation is

application of a single, streamlined approval process in place of the range of normal environmental controls. Examples include the:

3. Fast-track legislation

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State Environmental Planning (Permissible Mining) Act 1996 Environmental Planning and Assessment Amendment Act 1997 (which introduced the new categories of exempt and complying development to the NSW planning system) Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 (which created Part 3A of the EPA Act.

The focus of environmental law Development and protection [1.160] At the heart of any conception of environmental law are rules that regulate human use of the natural environment (natural resources) - land, water, air, minerals, forests and natural landscapes.

Environmental law does not necessarily guarantee the protection of the natural environment. Early NSW law dealing with natural resources such as forests, water and minerals was motivated by a desire to encourage their exploitation for economic and social purposes. There was little attempt to mitigate the impact on the natural environment, let alone ensure that development would not proceed where this impact would be significant. The focus was on development, as distinct from conservation for the benefit of future generations. However, with the enactment of the EPA Act, the law has sought to ensure that decisionmakers, when they exercise their discretionary powers in relation to the development of natural resources, take into account effects on the natural environment as well as social and economic factors. While this does not mean that environmental concerns will be decisive in particular cases, the Act has grafted onto the existing emphasis on development an obligation at least to consider impact on the environment. Yet this does not guarantee its protection. As a result, environmental law has become largely concerned with providing the machinery for resolving disputes between people who want particular natural resources to be used for different purposes. This is not to say that there are no general rules designed to protect the natural environment. Legislation does on occasions prohibit certain activities altogether (for example, nuclear activity or incompatible development in an environmental protection zone identified in a land use plan) . In addition environmental law provides that certain areas can be set aside as protected areas under State control, such as nature reserves, national parks and wilderness areas, and in these areas conservation is given priority over development. Environmental law is not confined to those areas of law that deal with preservation of the natural environment. Laws concerned with the development of natural resources have an equal claim to be included: preservation and development are simply two different approa~hes to natural resource use.

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Natural and developed [1.170] At one extreme, we may confront issues about whether a rainforest should be logged or whether remnant native vegetation should be mined or cleared for agriculture. At the other extreme, human beings may already have made such a major impact on the land through construction or farming that its status as natural environment no longer exists. In these circumstances, the issue is frequently whether one form of human activity should replace another. The dispute is still, however, about appropriate land use.

In practice, it is impossible to draw a dividing line between "natural" and "developed", and to confine environmental law to regulating the environment in its natural state. In the first place, there would be problems in defining what we mean by "natural", given that air, land and water have all been subjected to varying degrees of human interference. This is reflected in legislation. Even legislation relating to national parks contemplates significant recreational use as well as conservation. The Environmental Planning and Assessment Act 1979 deals with environmental assessment of both development within the built environment and development in endangered ecosystems.

Even in situations where the issue involves a change of use of part of the environment that has already been modified significantly by human activity, there are opportunities for mitigating human impacts, or even restoring the natural environment in some situations. One objective of environmental laws regulating air and water pollution, for example, is to gradually reduce environmental pollution over time.

Definitions of environment [1.1 80] The concept of "environment" is usually associated with the natural or biophysical environment, which consists of land, water, flora and fauna, air, and climate. But humans are also part of the environment, so economic and social factors are also relevant to this definition, helping to create the "built environment". Indeed, the environment has been defined as "a concept which includes all aspects of the surroundings of humanity, affecting individuals and social groupings" (Gilpin A, An Australian Dictionary of Environment and Planning, Oxford University Press, Melbourne, 1990). Thus the environment is by no means in its natural state when questions about its use arise, and so in practice it is difficult to draw a dividing line between "natural" and "developed" environment (see [1.170] above) .

In attempting to identify the scope of environmental law, we can get some guidance from definitions of "environment" found in legislation. The definition in the Commonwealth legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act), takes our attention beyond the natural components of the environment to the values that human beings attribute to these components. Environment is defined to include (s 528): (a)

ecosystems and their constituent parts, including people and communities; and

(b)

natural and physical resources; and

(c)

the qualities and characteristics of locations, places and areas; and

(d)

heritage values of places and

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the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b), (c) or

(1.200]

(g)

marine environment (except a matter arising under the Fisheries Management Act 1994 or the Marine Parks Act 1997,

(h)

forestry,

(i)

any other matter concerning natural resources prescribed by the regulations.

(d ).

The EPA Act provides that environment "includes all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings" (s 4, EPA Act). This definition focuses on the surroundings of human beings and the way in which these surroundings affect human beings, rather than the way human beings affect the natural environment. To this extent it is anthropocentric. But the Act itself assesses and regulates the impacts of human activities on the environment. Thus, as defined by legislation "environment" may be perceived in unavoidably anthropocentric terms, generally referring to human surroundings or includes humans as part of the environment. In comparison, terms such as "ecosystem" or "ecological community" are usually used to refer to the environments of other species, and so focus on the natural environment and the field of biodiversity in particular. An ecosystem is a dynamic complex of plant, animal and micro-organistic communities and their non-living environment or surroundings, all interacting as a functional unit (EPBC Act, s 528). An ecological community is an assembly of native species that inhabits a particular area in nature (EPBC Act, s 528). The Protection of the Environment Administration Act 1991 (NSW) simply lists the various components which go to make up the "environment" but is careful to include both the natural and human made environment. It defines "environment" as (s 3 ): components of the earth, including: (a) land, air and water, and (b)

any layer of the atmosphere, and

(c)

any organic or inorganic matter and any living organism, and

(d)

human-made or modified structures and areas,

and includes interacting natural ecosystems that include components referred to m paragraphs (a)-(c). From this broad perspective, any attempt to draw a sharp distinction between natural resources law and environmental law in particular breaks down. For example, biodiversity is perceived as part of the natural environment: specifically the environment of other species as expressed in terms such as ecosystems and ecological communities. Yet biodiversity has also come to be recognised as a resource, as indicated for example in its inclusion in the definition of natural resources in the NSW Natural Resources Commission Act 2003. The definition of "natural resources" in the Natural Resources Commission Act 2003 illustrates the difficulty of attempting to draw any distinction between environmental management and management of natural resources (s 5): (a)

water,

(b)

native vegetation,

(c)

salinity,

(d)

soil,

(e)

biodiversity,

(f)

coastal protection,

chapter 1 The structure and scope of environmental law

This scenario of the practical convergence of the fields of natural resource management and environmental management is crucial in the specific context of land use planning, as it presents a challenge for land use planners who are now expected to be natural resource managers as well. Rising to this challenge is problematic, not least because of the differing traditions of land use planning, with its origins in old-style Brit_ish "town and country planning" and natural resource management, which is rooted in more recent fields of ecology, environmental science and other sciences such as biology.

Ecologically sustainable development [1.190] The concept of ecologically sustainable development (ESD) has been increasingly

incorporated into environmental legislation as an appropriate consideration for environmental agencies and decision-makers. It has its origins in the report of the World Commission on Environment and Development, Our Common Future (Brundtland Report, 1987), where development was defined as sustainable "if it meets the needs of the present without compromising the ability of future generations to meet their own needs" (p 8). In 1992, the Intergovernmental Agreement on the Environment (see [1.540]) committed all Australian governments to ESD in the assessment of natural resources, land-use decisions and approval processes (Schedule 2).

Integrating the economy with the environment [1.200] Attempts have been made to give the concept of sustainable development greater

precision and to make it a more useful tool in legal contexts. The NSW Protection of th e Environment Administration Act 1991 set up the Environment Protection Authority (EPA). The objective of the EPA is to protect, restore and enhance the quality of the environment in NSW. In pursuing this objective, the EPA is required to have "regard to the need to maintain ecologically sustainable development" (s 6(1)(a)). ESD is said to require "the effective integration of economic and environmental considerations in decision-making processes". The "principles and programs" to assist in achieving this are (s 6(2)): (a)

the precautionary principle - namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i)

careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii)

an assessment of the risk-weighted consequences of various options,

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(b)

inter-generational equity - namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

from the scope, purpose and objects of the particular legislation. A number of pieces of NSW legislation now refer to the principles of ESD in spelling out their objects or the objectives of the agency administering the legislation.

(c)

conservation of biological diversity and ecological integrity - namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

(d)

improved valuation, pricing and incentive mechanisms - namely, that environmental factors should be included in the valuation of assets and services, such as:

For developments regulated under Part 4 of the EPA Act (see Chapter 5), for example, section 79C does not specifically require the decision-maker to take ESD into consideration. It does, however, require the "public interest" to be taken into account along with other more specific factors, including "environmental impacts on both the natural and built environments" and "the social and economic impact in the locality" . It has been held by the Land and Environment Court that the "public interest" includes ESD principles because the objects of the legislation include the encouragement of ecologically sustainable development (Carstens v Pittwater Council (1999) 111 LGERA 1 at [74]; BGP Properties Ltd v Lake Macquarie City Council (2004) 138 LGERA 237 at [113]; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [123]-[124]; Minister for Planning v Walker [2008] NSWCCA 224 at [43])). In Aldous v Greater Taree City Council (2009) 167 LGERA 13, Biscoe J held that the council had to take the principles of ESD into account, in particular the impact of climate change induced coastal erosion, in deciding whether to grant a development consent to construct a new dwelling on beachfront land.

(i)

polluter pays - that is, those who generate pollution and waste should bear the cost of containment, avoidance or abatement,

(ii)

the users of goods and services should pay prices based on the full life cycle of costs of providing goods and services, including the use of natural resources and assets and the ultimate disposal of any waste,

(iii)

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems.

This definition is now adopted by many other pieces of NSW environmental legislation. The list of ESD principles in the Commonwealth Government's EPBC Act (s 3A) is less detailed but in similar terms. The major difference is that ESD is said to require the integration not only of economic and environmental considerations but also social and equitable considerations, over both the short and long term.

Taking ES • into account in decision-making [1.210] In an ideal world, ESD would be the standard by which the suitability of development was assessed. Under NSW legislation it is, at best, something to be considered by decisionmakers. See [2 .360]-[2.510] for a discussion of the very limited role that the courts are prepared to play in ensuring that decision-makers give adequate consideration.

Whether legislation even requires ESD to be considered depends on statutory interpretation. Some statutes now specifically require a decision-maker to take ESD principles into account when making decisions affecting the environment. For example, if proposed development is likely to significantly affect a threatened species, and consent under the Environmental Planning and Assessment Act 1979 is required from a local council, that consent must not be granted without the concurrence of the Chief Executive of the Office of Environment and Heritage (EPA Act, s 79B( 3)) . In deciding whether or not to concur, the Chief Executive must take the principles of ESD into consideration (EPA Act, s 79B(5)(g)) . More specifically, the Fisheries Management Act 1994 provides that the precautionary principle ("if there are threats of serious or irreversible damage to fish stocks, lack of full scientific certainty should not be used as a reason for postponing measures to prevent that damage") is to be taken into account in fixing total allowable catches (s 30(2)(c)).

Role of the precautionary principle [1.220] The interpretation and application of one of the principles of ESD, the precautionary principle, is proving particularly controversial and difficult to resolve. The precautionary principle applies in situations where there is scientific uncertainty about the environmental impact of an activity.

In Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10, the Chief Judge of the Land and Environment Court held that to trigger the precautionary principle a threshold test, with two rungs, had to be passed:

• •

there must be a threat of serious or irrev~rsible environmental damage, supported by scientific evidence, and scientific uncertainty as to the nature and scope of the threatened environmental damage.

If the threshold test is passed, then the precautionary principle requires the decision-maker to presume that there is indeed a threat of serious or irreversible environmental damage flowing from a proposal unless the proponent proves otherwise (at [150-152]). What the precautionary principle does is to lower the burden of proof relating to environmental impact below "scientific certainty" in cases where the potential degree of impact is serious or irreversible. However, the presumption of threatened serious or irreversible environmental damage does not mean that approval for a project must necessarily be refused, or that it should only be allowed to go ahead subject to such stringent conditions that it is not economically viable. The precautionary principle does not give the assumed environmental damage overriding weight in the decision-making process. The decision-maker, in exercising discretion, can still prefer arguments in favour of development based on social and economic considerations (at [154]) .

"\

Where specific legislative provisions do not exist, it is unclear when a decision-maker is required to have regard to ESD principles as a mandatory consideration. In accordance with principles of administrative law, relevant considerations for decision-makers must be determined

On this view, the precautionary principle is designed to introduce transparency into the politics of resource use decision-making by forcing decision-makers to admit when they put socio-economic imperatives ahead of threatened serious or irreversible harm to the environment.

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Some, however, would like to see the precautionary principle go a lot further and require the decision-maker to give extra weight to environmental considerations when making decisions (see [2.440]-[2.4 70]). An extreme version of this approach would deny approval for development unless the applicant can show that the proposal will not cause serious or irreversible environmental damage. But at present the general position is that the precise weight to be given to the precautionary principle and environmental impact is a matter for the decision-maker unless legislation specifically provides otherwise. In Greenpeace Australia Ltd v Redbank Power Co Pty Ltd (1994) 86 LGRA 143, Justice Pearlman stated that the precautionary principle: should be adopted in evaluating the various relevant factors in determining whether or not to grant consent; [but] it does not require that the greenhouse issue should outweigh all other issues.

[1.240]

chapter 1 The structure and scope of environmental law

required the development of procedures not simply for dealing with the situation if voids and fissures were found, but assessing the limestone for voids and fissures, and any biota in them, prior to blasting: In basic terms, the protocol will need to identify the process for successive investigation of areas to be quarried, probably by drilled cores. The core holes will need to be examined for presences of cracks, fissures, large voids and water and sampled for biota, both stygofauna and troglofauna. The protocol may need to address frequencies of sampling and the criteria for implementation of measures up to and including closing the operation. There will need to be agreed courses of action depending on the findings from sampling (at [189]).

Case studies: The precautionary principle [1.230] Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133

was a merit appeal (see [2.350]) to the Land and Environment Court from a local council decision refusing development consent for the construction of a mobile telephone base station, including antennas, to improve mobile telephone coverage in the area. The primary issue related to the effect of radiofrequency electromagnetic energy on public health. In approving the proposal, Preston CJ found that the threshold test for the operation of the precautionary principle had not been met: there was no threat of serious or irreversible environmental damage, particularly in light of the fact that the development would comply with the relevant Australian Standard, which itself embodied a precautionary approach. In Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, one issue that arose was whether a proposal to quarry limestone was likely to have an impact on any biota present in subterranean aquatic habitat in any caves found in the limestone. At that stage, no caves were actually known to be present on the site. After considering the evidence of expert witnesses, Preston CJ determined that there were likely to be small, interconnected voids and fissures in the limestone to be quarried. He then went on to conclude that even though there was no site-specific information on the presence of biota (at 177): the presence of biota in caves and groundwater in the near vicinity of the site and the increasing number of studies elsewhere that establish the presence of biota in limestone, make it scientifically likely that some form of biota will be found within the limestone on the site. It was "beyond a mere possibility" that biota would be present, and this was sufficient to pass the threshold test and attract the operation of the precautionary principle. In light of this, the response to be taken to the quarrying proposal turned on "the combined effect of the degree of seriousness and irreversibility of the threat of environmental damage and the degree of uncertainty" (at [180]) . There had to be a balance between the stringency of the precautionary measures and their associated costs and the seriousness and irreversibility of the threat (at [182]). In these circumstances, Preston CJ held that the most appropriate approach was to grant approval subject to conditions requiring monitoring and adaptive management. This

State of the environment reports [1.240] State of the environment reports are regarded as a key component in any management system attempting to achieve ESD. ESD relies on adequate and accessible information about the environment being available to the public, industry, non-government organisations and all levels of government. Once national indicators of changes and trends in environmental conditions are agreed on, a state of the environment report allows regular reporting on these indicators. Typically, the report will describe human impacts on the environment and their implications for human and economic well-being. An opportunity is also provided to monitor the performance of government policies against actual outcomes.

The NSW Protection of the Environment Administration Act 1991 requires the Environment Protection Authority to prepare such a report every three years (s 10). The report must be given to the Environment Minister and tabled in both Houses of Parliament. It must include the following:

• an assessment of the status and condition of the major environmental resources of NSW • an examination of environmental trends, including their implications for the environment and for human health • a review of the programs and activities of public authorities and of the private sector relating to environment protection • an examination of trends in economic analysis and of the costs and benefits (including economic evaluation) of environment protection • any general recommendations for future legislative or other action that the EPA considers appropriate to discharge its responsibilities in relation to environment protection • a statement on the performance of environmental education programs.

The most recent state of the environment report is New South Wales State of the Environment 2012 (http://www.epa.nsw.gov.au/soe/soe2012/index.htm).

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(1.250]

How environmental law works [1.250] Environmental law is concerned with resolving disputes about the use of resources,

whether natural or human made. Proposed uses may involve the development of resources at one extreme (such as, putting an ecosystem under bricks and concrete) to their restoration to a historical baseline and preservation at the other, or anything in between. Environmental legislation generally gives only a partial picture of how people should behave in relation to the law. There are a few examples of general statements in legislation of what particular groups should not do, backed up by the threat of penalties under the criminal law. The Marine Pollution Act 2012 (NSW), for example, provides that the owner and the master of a ship that discharges oil into waters covered by the Act are guilty of offences unless they can prove that they fall within one of a detailed list of exceptions (ss 18 - 25). But this is unusual. Environmental legislation, for the most part, prohibits behaviour but qualifies this by providing for specific applications to engage in particular instances of this behaviour to be approved on a case by case basis. The decision on whether the behaviour should be allowed is delegated to local councils, government ministers, accredited certifiers, various planning panels or commissions, the Land and Environment Court and licensing bodies. The law's role is to set up the procedures that decision-makers must follow in reaching decisions on a case by case basis. This is inevitable in a land use context because decisions must be tailored to the very different environments that exist on different areas of land. This delegation of decision-making power is sometimes made directly to bodies with access to more precise information, which then grant an approval or give directions in particular cases. Or the delegation may be intermediate, providing procedures for making land use or management plans. In turn, the plans may further delegate the power to make decisions in particular cases by requiring approval to be sought for specified activities.

Approvals [1.260] Even where environmental legislation appears to clearly prohibit certain forms of

behaviour in relation to the environment, there will usually be a further provision that enables people to apply for approval to engage in the prohibited behaviour. So, for example, the Protection of the Environment Operations Act 1997 (NSW) at one stage states in clear terms that "a person who pollutes any waters is guilty of an offence", with the sanction of a substantial fine (s 120(1)). However, it later adds that this is not an offence if a licence is first obtained and its terms and conditions complied with. What this means is that most environmental law is concerned with setting out the procedures according to which approvals, such as consents, permits and licences, may be applied for and granted. Where the law requires approval to be sought, the applicant will not know the outcome until the procedures have been followed and a decision has been made on the facts of the particular case. This decision will turn on the way in which the responsible decision making body chooses to exercise the powers it has been given. This body exercises discretion (see [1.300]).

(1.280]

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Plans [1.270] Environmental legislation may provide for implementation through more detailed plans, although plans need not necessarily contain legally binding regulatory provisions. An example of a plan which does is an environmental planning instrument (for example, a local environmental plan) made under the NSW EPA Act. The legislation sets out the procedures according to which these plans must be made if they are to have the force of law (see Chapter 3). The legislation does not set out the detailed rights and obligations of developers in relation to the development of a particular piece of land: the plan itself will start to spell out these details, at least giving information to developers and conservationists about what kinds of development are prohibited on a particular piece of land, and what kinds are permitted with or without need for prior approval. In practice many types of development will be permitted only if the developer first secures the approval of a particular decision-making body, usually a local council, other planning body or the Planning Minister. In this case, the legislation has not only delegated to another body the decision to determine the contents of the plan, but that body is further delegated the decision about what development should be allowed on particular sites.

The existing use of land [1.280] Environmental law is rarely concerned with virgin territory. Land will usually be subject

to a current or existing use, even if it is simply rough grazing. To insist that particular activities on land, established lawfully in the past under the law as it then existed, cease because they are out of kilter with the present needs of the community or the environment would be extremely disruptive and unfair. On the other hand, if new legislation or a new plan simply permits the existing use of land to continue even though the community's priorities have changed, this denies any possibility of correcting what are now seen to be land-use errors made in the past. In practice, NSW planning legislation exempts existing uses of land from provisions in plans made under it that seek to prohibit or regulate that use (see [5.410]-[5.560]). However, a majority of the NSW Court of Appeal has emphasised that the protection of existing uses under planning legislation is a privilege rather than a right, which may have to give way to additional restrictions contained in other legislation (Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374 ). The scope of the existing use is narrowly defined. In addition, the right is lost if the use is abandoned or if the owner of the land voluntarily decides to exchange it for one that is permitted by the plan - which is precisely what planners hope will happen sooner or later. In practice, the broad principle that the existing use to which land is being put should be exempt from new regulatory initiatives by government has not only been adopted in planning legislation. For example, the Commonwealth Government's Environment Protection and Biodiversity Conservation Act 1999 introduced a new regulatory regime covering private land use where a proposed activity was likely to have a significant impact on nationally significant environmental values, such as threatened species. Existing uses are exempted from the requirement to obtain approval (see [7.450]). However, there is nothing in pollution legislation that prevents the existing level of emissions from being reduced by new regulations. The Environment Protection Authority (EPA) has powers under legislation to have a dramatic impact on industry by requiring significant cuts in emissions. In practice, however, it is sensitive to economic constraints and provides a timetable for change (see Chapter 9).

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Orders, notices and directions [1.290) Rather than spelling out general obligations from which individuals and companies can

exclude themselves by obtaining prior approval, legislation may delegate to public officials the power to take the initiative and make more specific requirements. The requirements may take the form of prohibitions and/or demands for action to be carried out. These delegated powers may take one of two forms: 1.

those usually referred to as orders, which set out regulatory requirements in relation to a particular part of the environment (for example, interim heritage orders: see (17.120])

2.

those usually called notices or directions, which are addressed to particular individuals or companies and set out specific courses of action that they must follow or activities that they must cease carrying out (for example, pollution clean up, prevention and prohibition notices: see [9.910]-(9.980]).

[1.310]

chapter 1 The structure and scope of environmental law

it, rather than on a general rule. We expect courts, on the other hand, to rely on pre-existing rules in reaching a decision in a particular case: Their function is to discover the facts and then apply the law to them. It is true that in practice the law may be unclear or make use of vague standards, and in this sense courts are able to make choices (see, for example, the law of nuisance, discussed [2.160]-(2.240]). But, in theory at least, they have no choice as far as the merits of a case are concerned. The primary issue in a criminal trial is whether the accused has performed acts that amount in law to a criminal offence. Only when it comes to sentencing a person who has been found guilty would we say that the court exercises discretion. Sometimes, however, legislation empowers courts, such as the NSW Land and Environment Court, to hear appeals on the merits from the decisions of local councils and public authorities, and in these situations they must exercise their discretion (see (2.350]).

Land tenure

When making orders, public officials choose only the target (the person obliged to do something); the legislation specifies their obligations. Notices and directions specify both the target and the precise obligations.

[1.31 OJ The regulation of land use is at the core of environmental law. Decisions about

The onus in this context is placed on public officials to bring prohibitions into operation. Whether or not regulation is initiated by making an order or giving a direction or notice depends on the exercise of discretion, and, specifically, whether the officials are prepared to take a proactive stance.

appropriate land use in both urban and rural contexts involve more than traditional notions of town and country planning law, such as the siting of industry in relation to residential areas and the structure of road networks. Appropriate land use also involves choices and decisions about issues such as:

Discretion [1.300) The body deciding whether or not to grant an approval or issue an order, notice or direction, has a choice to make. It must take the facts into account and any legal limits imposed on its range of choices, such as a list of factors it is legally required to take into consideration before granting an approval (for example, an environmental impact assessment). Within these limits, the decision is recognised as a matter for the judgment of the decision maker. This is what is meant by the exercise of discretion. For example, a decision maker deciding whether or not an approval should be granted must weigh up and balance frequently competing considerations (often, in very crude terms, the social and economic need for development as against the protection of the environment) and make a decision. If all procedural requirements are followed, the decision maker can make what is generally recognised as a bad decision without the courts interfering. For the courts are wary about interfering with the exercise of discretions allocated to decision-makers by Parliament in legislation. See [2.350]-(2.510] for a detailed discussion of the limited extent to which the courts are prepared to supervise the exercise of discretion by public bodies.

Legislation can structure the exercise of this discretion by insisting that certain procedures, such as public consultation, be followed and certain factors considered to the exclusion of others. However, only if legislation says that certain action shall be taken, or that a certain decision shall be reached in certain circumstances, will the public body be deprived of discretion and given a duty to perform. A public body exercising discretion is in a different position to a court of law. Its decision will be based on balancing the pros and cons (often referred to as the "merits") of the proposal before

17

• mining, forestry and agriculture • reservation of land for national parks • prevention of pollution • competing uses for water from natural water courses • protection of plants and animals • heritage protection, including the protection of Aboriginal heritage • Aboriginal rights of access to land and other resources.

The kind of tenure (that is, possession or title) under which land is held has important implications for its management. NSW is divided into the Eastern and Central Divisions (about 60% of the State) and the Western Division. At the turn of the century, some 55% of land in the Eastern and Central Divisions was privately owned, while about 20% was held under lease or licence from the Crown. In the Western Division, most land is held under Western Lands' leases and licences.

• • •

In simple terms, in NSW today, land tenure is assumed to be either: Crown land which may be: held under lease, licence or permit; community managed reserves; retained in public ownership for environmental purposes; within the Crown public roads network; other unallocated lands subject to claim by Aboriginal or Torres Strait Islander people; this is of two types: native title recognised at common law, and a statutory right to certain Crown lands privately owned (freehold); or rented or leased from a private owner (leasehold) .

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Crown land [1.:520] In the Eastern and Central Divisions, Crown land may be held under leases or licences ranging from perpetual leases to licences that can be terminated at any time. Most Western Lands leases are perpetual. See Chapter 11, [11.160]-(11.280].

• • •

Other Crown land includes:

[1.350)

chapter 1 The structure and scope of environmental law

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A substantial area of NSW is in private ownership or is held in perpetual leasehold. In spite of ongoing initiatives by the NSW Government to increase the area of land in national parks, we will never have a system of publicly owned conservation areas that will adequately satisfy the needs of nature conservation. The issue of how to persuade or require private landholders to use and manage their lands in ways that are at least compatible with the interests of environmental protection is one of the most intractable problems faced by environmental policy-makers.

the national parks system (7.1 million hectares) State forests (2.2 million hectares) water board catchments.

Land may also be reserved under Crown lands legislation for a range of public purposes (see [4.100]). A small proportion of land is classified as vacant Crown land, comprising mainly rugged areas not allocated for specific uses.

Aboriginal land [1.:J30] Some land in NSW is subject to claims by Aboriginal people. These claims have been facilitated by various High Court decisions and by State and Commonwealth legislation. For a detailed discussion, see Chapter 20. The Aboriginal Land Rights Act 1983 allows Aboriginal land councils, established at local, regional and State levels, to make claims in respect of certain Crown lands in NSW, which in the event of a successful claim become the freehold owners of the land. A common law right to native or customary title was recognised by the High Court in Mabo v Queensland [No 2) (1992) 175 CLR 1. The Commonwealth government responded to the decision by enacting the Native Title Act 1993, preserving native title rights that existed on 1 January 1994, and setting out where the rights had been extinguished. The NSW Government followed suit by enacting the Native Title (NSW) Act 1994 to create consistency between Commonwealth and State legislation.

Privately owned land [1.340] If an area of Crown land is specifically set aside as a protected area, such as a national

park, the threat of land uses posing a threat to conservation values is substantially diminished. While there may be continuing tensions between recreational uses and conservation objectives, most environmentally damaging activities are absolutely prohibited by legislation. Land that has been transferred into private ownership, on the other hand, is subject to a range of developmental pressures, including clearing native vegetation for agriculture and residential development. These can have massive, and often irreversible, impacts on the land' s conservation values. In addition, once land has been transferred into private ownership, it is generally politically more difficult for governments to regulate its use because they will be confronted with demands from owners that their private property rights be respected. Even perpetual leaseholders under the Crown lands legislation, though in theory they hold their land on terms that restrict its use under threat of forfeiture, in practice have a sense of ownership in the face of government "interference" that is little different to that of private landowners.

Environmental low and private property [1.350] Traditionally, private property has been associated with the owner's legally enforceable rights to exclude others from the benefit or use of the land. This is often the argument of those who resort to the ideology of private property when confronted with, for example, legal restrictions on land-clearing. But this argument neglects the vital public interest in regulating, for example, activities that cause polluting spillovers onto other land and into the air and waterways, which belong to the community as a whole. It is one thing to say that owners should be able to stop other people coming onto privately owned land and carrying out their own projects; it is going much further to say that owners should be able to do what they like on their land, regardless of the effects on adjacent landholders or the natural environment.

Some would go further and argue that land has a special status because it is not simply scarce: it is finite. As a result, the State has a vital interest in ensuring that it is used for the benefit of the community as a whole: When the "sacredness of property" is talked of, it should always be remembered, that any such sacredness does not belong in the same degree to landed property. No man made the land. It is the original inheritance of the whole species. Its appropriation is wholly a question of general expediency. When private property in land is not expedient, it is unjust. (JS Mill, Principles of Political Economy). Mill, in the historical context in which he was writing, was concerned to ensure that landholders "improved" land and used it productively. In the past, this was also the attitude taken in Australia, best illustrated in conditions attached to leases of Crown land that required lessees to show their commitment to development by carrying out "improvements" such as building fences and clearing vegetation. The argument now advanced is that society's priorities have changed, with increasing concern about loss of biodiversity and climate change and the implications this has for the future welfare of the planet and the survival of human beings. As a result, we cannot leave decisions about land use solely in the hands of landholders who claim the right to do as they please with their land. The common law, particularly the law of nuisance (see [2.160)-(2.240]), recognised that some restrictions were inevitable if private property holders were to be protected even from each other. If each were allowed to develop land according to their own wishes, there would inevitably be conflicts arising from inconsistent uses that had spillover effects - for example, factories next to residential areas. The new breed of environmental legislation takes the common law a step further. It recognises that spillover effects go beyond pollution and that they can have an impact not only on immediate neighbours but on the broader community and on future generations. The Intergovernmental Agreement on the Environment (see [1.540]) avoids the issue by providing that:

./

/

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(1.360]

Within the policy, legislative and administrative framework applying in each State, the use of natural resources and land remain a matter for the owners of the land or resources. (Schedule 2). This simply begs the question as to how far laws in each State do impinge on the use of privately owned land, but it is clearly intended to be an important symbolic assertion of the "rights" of private property, designed to appease those who call upon the ideology of private property to resist the imposition of land-use controls.

Compensation Existing and proposed uses [1.360] This still leaves the question of whether landholders should be compensated where land-use restrictions are imposed by the law. It is important at this point to distinguish between current or existing land uses and proposed changes to land use. The focus of the debate about payment of compensation has focused on situations where the law thwarts the desire of a landholder to change the use of their land by carrying out development. This needs to be distinguished from any suggestion that existing land uses should be regulated.

As already discussed ([1.280]), land use legislation in practice has traditionally exempted from regulation, to varying degrees, the use to which land is currently being put. As a result the question of compensation does not arise. There are clearly strong equity and economic arguments for protecting existing uses from being shut down overnight. In light of these arguments, governments have generally accepted that they will either have to buy the land in question if they want an existing use terminated altogether or wait for the landholder to abandon it voluntarily.

Compensation under the Commonwealth Constitution [1.370] There is nothing in the NSW Constitution that guarantees private property rights or provides for the payment of compensation if the NSW Government regulates the use to which land is put by, for example, prohibiting particular uses. Section 51(xxxi) of the Commonwealth Constitution on the other hand, provides that any "acquisition" of property by instrumentalities of the Commonwealth must be made on just terms. In the Tasmanian Dam case (Commonwealth v Tasmania (1983) 158 CLR 1), however, three of the four members of the High Court who dealt with the issue made it clear that even the severe restrictions on land use imposed under the World Heritage Properties Conservation Act 1983 (Cth) did not constitute an "acquisition" requiring the payment of compensation under section 5l(xxxi) because the Commonwealth had not itself acquired a proprietary interest in the land.

Occasionally, however, restrictions on land use may be so complete that they essentially take away the whole substance of a property interest. In these circumstances there is an indirect acquisition of property, and Commonwealth legislation will be held invalid unless it provides for compensation as required by section 5l(xxxi) of the Constitution.

(1.390]

ch a pt er 1 The structure and scope of environmental law

21

Case study: The Newcrest Mining case [1.380] In Newcrest Mining (WA) Ltd v Commonwealth (1997) 147 ALR 42, the issue involved mining leases acquired by Newcrest at Coronation Hill, adjacent to Kakadu National Park. In 1989, and again in 1991, proclamations were made under the National Parks and Wildlife Conservation Act 1975 (Cth) incorporating the Coronation Hill area into the Park. This Act provided that "[no] operations for the recovery of minerals" could be carried out in the Park.

Although the mining leases themselves were not extinguished, Newcrest was unable to exercise its rights under them. The benefits the Company might have otherwise derived from its leases were effectively sterilised. A majority of the High Court (Justices Gummow, Toohey, Gaudron and Kirby, with Chief Justice Brennan also agreeing on this point) found that this amounted to an acquisition of property under section 51(xxxi) of the Commonwealth Constitution. The effect of the proclamations and the ban on mining was not merely to impair the bundle of rights that existed under the mining leases. Justice Gummow (at p 130) held that Newcrest had, "as a legal and practical matter", been denied the exercise of its rights under the leases. The "loss" here went much further than that which occurred in the Tasmanian Dam case. Newcrest could do nothing in relation to the land without the right to mine, given the limited rights stemming from the leases, while in Tasmania the land could still be used by its owner (the State of Tasmania) in a limited way as a national park.

Case Study: The ICM Groundwater case [1.390] In ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; [2009] HCA 51 the plaintiff irrigators' licences to access groundwater, issued under the Water Act 1912 (NSW), had been replaced by aquifer access licences, issued under the Water Management Act 2000 (NSW) which allowed them to access over 60% less water. They argued that this was an acquisition of property under section 51(xxxi). Although "structural adjustment payments" had been made to the plaintiffs, the defendant governments accepted that these were not sufficient to constitute "just terms". The High Court held, however, that section 51(xxxi) did not apply because there was no acquisition of property. Following a similar approach to that taken in the Tasmanian Dam case, it held that for there to be an acquisition of property, an identifiable benefit or advantage relating to the ownership or use of property had to be obtained. The exercise by NSW of the power which it had to regulate access to a natural resource, vested not in the plaintiffs but in the State, did not fall within this principle. In a joint judgment, French CJ, Gummow and Crennan JJ distinguished the Newcrest Mining case (at [85]):

To acquire the substance of proprietary interests in the mining tenements considered in that case is one thing, to cancel licences to extract groundwater is another. The mining tenements were interests carved out of the radical title of the Commonwealth to the land in question, and the radical title was augmented by acquisition of the minerals released from the rights of another party to mine them... [T]he property of the Commonwealth had been

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[1.400]

enhanced because it was no longer liable to suffer the extraction of minerals from its land in exercise of the rights conferred by the mining tenements held by Newcrest.

Finding a nexus between State and Commonwealth legislation [1.400] Because the High Court in ICM Agriculture decided that there was no acquisition, it did not have to reach a final conclusion on another issue which was raised. In that case, the National Water Commission (NWC), acting under Commonwealth legislation on behalf of the Commonwealth Government, had entered into an agreement with the NSW Government. Under this, the NSW Government agreed to implement water sharing plans designed to achieve sustainable water use by reducing the amount of water extracted, in return for funding provided by the Commonwealth Government through the NWC. The changes to the plaintiff's licence flowed from this. The essential question is whether the Commonwealth Government has to pay compensation under s 51(xxxi) if Commonwealth legislation requires a State Government to acquire property by attaching a condition to this effect under a financial grant made to the State under section 96 of the Constitution (see below). For, as already discussed, there is no provision for compensation under the NSW Constitution. In the ICM Agriculture decision, four members of the High Court held (at [46], [174]) that Commonwealth legislation would be invalid if it granted financial assistance to a State on a condition that the State acquired property without paying just compensation. However, three of the other justices left the question open (at [141 ). This question and related questions were subsequently considered by the High Court in Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA 28. A landholder who was prevented from clearing native vegetation from his land under the NSW Native Vegetation Act 2003 (see [12.1360]-[12.1560]) argued that this amounted to a violation of s 51(xxxi) of the Australian Constitution because it constituted an acquisition of property without adequate compensation under Commonwealth legislation, the Natural Resources Management (Financial Assistance) Act 1992 and the Natural Heritage Trust of Australia Act 1997 which provided funding to NSW. He argued that the Commonwealth had not simply restricted his land use but had gained a benefit because, at an international level, it would be able to claim carbon sequestration rights derived from the vegetation on his land. Originally the landholder's challenge was dismissed by Emmett J of the Federal Court pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that the landholder had no reasonable prospect of successfully prosecuting the proceedings (Spencer v Commonwealth [2008] FCA 1256). The landholder was granted leave by a judge of the Federal Court to appeal from the decision of Emmett J and the Full Court of the Federal Court subsequently dismissed the appeal (Spencer v Commonwealth (2009) 174 FCR 398; [2009] FCAFC 38). The landholder then applied for special leave to appeal to the High Court. Contemplating the effect of its findings in the intervening decision in ICM Agriculture on the prospects of success, the High Court upheld the landholder's appeal and ordered that the matter be re-determined by the Federal Court (Spencer v Commonwealth (2010) 241 CLR 118; [2010] HCA28).

[1.420]

chapter 1 The structure and scope of environmental law

Consequently, in a judgment delivered in July 2015 (Spencer v Commonwealth [2015] FCA 754 ), the Federal Court made two key findings. First, the Court concluded that the two impugned federal laws (the Natural Resources Management (Financial Assistance) Act 1992 (Cth) ar:4:l the Natural Heritage Trust of Australia Act 1997 (Cth)) could not be characterised as laws \..,ith respect to the acquisition of property. When considered at a broader level, in their practical operation and effect as part of a scheme involving several intergovernmental agreements and state legislative controls on native vegetation clearance, there was no acquisition of property in contravention of s 51(xxxi). Second, the Court held that in the original decision (in 2007) of the NSW Rural Assistance Authority that the landholder's farm was not commercially viable because of the impact of the State's native vegetation laws, there was what could be characterised as a "sterilisation" or a "taking", but this was by the State not the Commonwealth. However, there was no acquisition by the State or any other person, of an interest or benefit of a proprietary nature in the bundle of rights the landholder held in his farm. The Court held that, if contrary to its findings, there had been an acquisition of this bundle of rights, the landholder was offered just terms in 2007 by the State's offer to pay the then properly assessed market value for the farm.

Forced purchase under NSW legislation [1.410] Although there is no constitutional provision requiring the NSW Government to pay

compensation where it acquires property, the Land Acquisition (Just Terms) Compensation Act 1991 (NSW) contains provisions requiring not compensation but purchase of land by government in certain circumstances. These include situations where land has been zoned under planning legislation so restrictively as effectively to amount to a reservation by government for a limited range of public purposes, including open space. This is the position where, even though the restrictive zoning permits other development in addition to the public purpose, it does not allow the land owner "a reasonable use of the land" (s 21(3)(6)). But land owners can only trigger purchase by government if they will suffer hardship as a result of any delay in purchase (ss 23, 24). And these provisions do not apply at all where the land is owned by a public company (s 22(2)(6)).

Management payments [1.420] While the formal legal pos1t1on may be that both the NSW and Commonwealth Parliaments have the power to enact legislation regulating land use without paying compensation, there are policy arguments against legislation that seeks to exercise this power. One argument is that where a land-use restriction confers a benefit on the community, as distinct from simply preventing harm, the community should pay. In other words, no compensation should be paid where the aim is to prevent polluting spillovers - in fact, the law increasingly requires polluters to pay - but compensation may be due where the restriction is imposed in the interests of nature conservation. However, concepts of harm and benefit are notoriously slippery. It is true that nature conservation has traditionally been regarded as a luxury rather than a necessity. But with the growing realisation of the essential role played by genetic diversity and different ecosystems in supporting life on the planet and providing ecosystem services to human beings, it may be appropriate to view nature conservation law as preventing harm, rather than simply providing a public benefit. Yet in practice, land-use restrictions - preventing, for example, the destruction of native vegetation - are only the first step in nature conservation. The land needs to be actively managed

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[1.430]

[1.460]

chapter 1 The structure and scope of environmental law

for nature conservation on an ongoing basis, through, for example, pest and noxious weed control, and the fencing off of stock. If landholders are to undertake this responsibility, they may legitimately expect to be paid for the work they do, through stewardship payments. But this is very different from compensating them for interference with so-called private property rights. Compensation relies on backward-looking payments for lost expectations, calculated by any reduction in land value stemming from the land use restrictions imposed. Stewardship payments, on the other hand, pay not for the restrictions themselves but for active conservation management of the land.

The Commonwealth has constitutional power under the external affairs power (see below1' to enact legislation that is "appropriate and adapted" to the terms of an international convention. It has, for example, relied on a number of international multilateral conventions as a basis for enacting the Environment Protection and Biodiversity Conservation Act 1999 (see Chapters 7, 12) These include the United Nations Convention on Biological Diversity (1992), the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973), the Convention on Wetlands (Ramsar) (1971) and the Convention for the Protection of the World Cultural and Natural Heritage (World Heritage Convention) (1972). See also the discussion of the constitutional basis of the Water Act 2007 (Cth) in (15.70].

Sources of environmental law

More generally, international law may influence the development of the common law, and it may be used in the interpretation of legislation where it is ambiguous.

NSW legislation

The role of the Commonwealth

[1.430] By far the greater part of the environmental law dealt with in this book consists of Acts (also referred to as statutes or legislation) made by the NSW Parliament, and decisions of the courts interpreting the provisions of this legislation.

The Commonwealth Constitution

International law [1.440] Australia is a party to a number of potentially legally binding international agreements (Conventions) relating to the environment. Most of them are multilateral in that they have multiple parties, while others are treaties between Australia and another country (for example, the Agreement between the Government of Japan and the Government of Australia for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA) (1974) and the 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 (CAMBA) (1986) (see [12.30]-(12.90]).

The Commonwealth Government is responsible for decisions whether initially to sign and then subsequently to ratify international conventions. However, the implementation of conventions often requires the cooperation of the States. Consequently, the Commonwealth has agreed to consult with them on the development of international treaties where States' interests are involved, and to take their views into account, trying to secure agreement on how international obligations will be implemented in Australia (Intergovernmental Agreement on the Environment para. 2.5.2). When it comes to the nomination of areas under the World Heritage Convention, for example, the Commonwealth will consult the States and make every effort to obtain their agreement. When agreement is reached, the State concerned has the primary responsibility for preparing the nomination (Intergovernmental Agreement on the Environment, Schedule 8). State Governments are consulted through the Treaties Council, comprising the Prime Minister and the Premiers. Once ratified, the provisions of a convention become binding on Australia at an international level. However, they are not automatically incorporated into Australian law. While not all components of conventions require implementation through legislation, legislation is required before individual rights and obligations are created within Australia.

[1.450] In addition to NSW legislation, the Commonwealth Parliament and Government also play a part through legislation, investment and other forms of influence. The formal position under the Constitution is that the Commonwealth has no direct power to legislate on environmental matters in NSW, leaving the NSW Parliament with general power to legislate in this area. However, the Commonwealth can use its powers in other fields to achieve environmental goals. Beginning in 1983 with the Tasmanian Dam decision by the High Court (see below), these have been interpreted expansively by the High Court.

Most of the relevant powers of the Commonwealth Parliament are contained in section 51 of the Constitution. Some of these powers are discussed below. Where the Commonwealth does not intervene on a constitutionally valid ground, NSW law continues to operate where the NSW Parliament has legislated on the matters in question. There is nothing to say that the Commonwealth must pass legislation in these areas for environmental purposes. In the past, Commonwealth Governments have been conservative in the use of their powers in the environmental context, focusing on specific land-use issues (for example, the protection of world heritage) or particular problems (such as ozone depletion), and on the activities and decisions of Commonwealth bodies. The enactment of the Environment Protection and Biodiversity Conservation Act 1999 (Cth), however, saw the Commonwealth engage directly with land use assessment and regulation across the landscape, including land in private ownership, albeit limited primarily to the protection of particular values for which the Commonwealth has responsibility under particular international conventions (see Chapter 7).

The trade and commerce power [1.460] The Commonwealth has power to make laws in relation to "trade and commerce with other countries and among the States" (Constitution, s 51(i)). This allows it, for example, to regulate exports of species, timber and minerals. This means that the Commonwealth can block resource developments that depend on exports for a market, even if these developments have been given the go-ahead under State land-use legislation (see Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1).

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[1.470]

Because the power extends to interstate trade, the Commonwealth could set standards for the production of manufactured goods and the taking of natural resources, provided that they did not discriminate against interstate trade on protectionist grounds (Constitution, s 92; Cole v Whitfield (1988) 165 CLR 360).

The external affairs power

[1.530]

chapter 1 The structure and scope of environmental law

Taxation [1.500] Under the taxation power (Constitution, s 51(ii)), the Commonwealth can pa~laws taxing environmentally harmful activities (for example, emission of greenhouse gases) or allowing deductions for environmentally friendly products (such as refillable containers and solar energy equipment).

[1.470] Under the external affairs power (Constitution, s 51(xxix)), the Commonwealth can

Commonwealth decision-making

pass laws to implement international conventions dealing with environmental matters, or to regulate environmental degradation of the sea (see Commonwealth v Tasmania (1983) 46 ALR 625; Richardson v Forestry Commission (1988) 77 ALR 237; Queensland v Commonwealth (1989) 86 ALR 519; NSW v Commonwealth (1975) 135 CLR 337; Victoria v Commonwealth (1996) 138 ALR 129).

[1.510] The Commonwealth can pass legislation relating to the decision-making processes of the Commonwealth Government and bureaucracy, and public bodies that have been set up at the Commonwealth level, provided that those processes relate to areas of Commonwealth power (Constitution, s 5l{xxxix)). This enables the Commonwealth Parliament to pass legislation requiring Commonwealth decision-makers to take environmental factors into account before reaching decisions. Under the EPBC Act, Commonwealth bodies must not take actions, whether inside or outside of Australia, that are likely to have a significant impact on the environment until they have been environmentally assessed and approved (s 28; see [7.320]).

The Tasmanian Dam case [1.480] The World Heritage Properties Conservation Act 1983 (now replaced by the EPBC Act see Chapters 7 and 17) provided for the identification of world heritage properties and prohibited a number of activities in those areas. It was an extremely contentious piece of legislation, originally enacted by the Commonwealth Government to prevent the building of a dam on the Gordon River below the Franklin River in Tasmania. This would have inundated a wilderness area listed under the World Heritage Convention.

The constitutional challenge to the validity of the legislation was heard before the High Court (Commonwealth v Tasmania (1983) 158 CLR 1). The Court ultimately held that the Act was constitutionally valid because the protection of the Tasmanian wilderness area was a matter of international obligation under the World Heritage Convention, and therefore the Commonwealth had the constitutional capacity to enact legislation under the external affairs power. The High Court subsequently went further and held, in Richardson v Forestry Commission (1988) 164 CLR 261, that the Commonwealth has an obligation under international law to prevent potential harm to a property which is not listed but is being investigated to determine if it meets the requirements of the World Heritage Convention. This was a valid exercise of the external affairs power.

Corporations [1.490] The Commonwealth can legislate in relation to foreign corporations, financial

corporations and trading corporations, at least in connection with things done for the purposes of their trading activities (Constitution, s 51{xx)); Commonwealth v Tasmania (1983) 158 CLR 1; New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1; [2006] HCA 52). This empowers the Commonwealth to control the environmental impact of the mining, agricultural and manufacturing activities of trading or financial corporations, and all the activities of foreign corporations. This would, for example, allow it to impose uniform pollution emission standards for corporations in all States. The Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 (Cth), for example, contains provisions that go beyond Australia's obligations under the Montreal Protocol to the Vienna Convention (1987), and these rest their claim to constitutional validity on the corporations and trade and commerce powers (see [9.410]) .

Which law prevails? [1.520] Where the Commonwealth does validly exercise its powers in environmental matters,

Commonwealth legislation prevails over State legislation if there is any inconsistency (Constitution, s 109).

Case studies: Commonwealth and NSW legislation [1.530] In Commercial Radio Coffs Harbour Ltd v Fuller (1986) 60 LGRA 68, the High Court dismissed the argument that the Broadcasting and Television Act 1942 (Cth), as it then stood, was inconsistent with the Environmental Planning and Assessment Act 1979 (NSW). The Commonwealth legislation did not purport to state exclusively or exhaustively the law that commercial broadcasting station operators must comply with. It concentrated on the technical efficiency and quality of broadcasting services and left room for the operation of other laws, such as planning and environmental legislation. As a result, the operator of a proposed commercial broadcasting station not only needed a Commonwealth broadcasting licence but also development consent, as required by the State legislation. See also Botany Municipal Council v Federal Airports Corporation (1992) 79 LGERA 241.

In Lane Cove Council v Optus Networks (1996) 90 LGERA 232, however, it was held that regulations made under the Telecommunications Act 1991 (Cth) validly exempted Optus from complying with NSW environmental and planning law. Currently, the Telecommunications Act 1997, Schedule 3, Part 1, Division 3, clause 6 specifically exempts certain activities from State environmental planning legislation, including facilities determined by the Minister to be low-impact, while leaving others subject to it.

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The Intergovernmental Agreement on the Environment [1.540] Whether or not the Commonwealth Government will, in practice, exercise its broad powers under the Constitution now largely depends on an agreement between the Commonwealth, the States and the Territories reached in May 1992. This agreement attempts to spell out the environmental policy and management responsibilities of each level of government, including local government.

The Intergovernmental Agreement on the Environment (IGAE) articulates principles that the parties agree should guide the development and implementation of environmental policy and programs, including the adoption of sound environmental practices and procedures as a basis for ecologically sustainable development. The IGAE also represents an attempt to reduce tensions between the Commonwealth and the States that developed when the Commonwealth used its constitutional powers to enact legislation to protect the environment and, in the process, block certain developmental activities in the States - in particular, Tasmania and Queensland.

(1.590]

chapter 1 The structure and scope of environmental law

the grant is to be used for, and also attach other conditions. This allows the Commonwealth to make grants specifically for environmental purposes, such as land clearing regulation (the Natural Resources Management (Financial Assistance) Act 1992 (Cth); Natural Heritage Trust of Australia Act 1997 (Cth)) and water resource management (National Water Commission Act 2004 (Cth)). It could also attach environmental protection conditions to grants for other purposes, for example road construction.

The role of local government [1.580] A considerable amount of environmental law is generated by local councils in the form

delegated or subordinate legislation called local environmental plans (for example, provisions that identify land use zones and regulate development within those zones). The responsibilities and functions of councils are discussed primarily in Chapters 3, 5 and 8.

Areas of Commonwealth responsibility [1.550] The general position under the IGAE is that:

Each State has responsibility for the policy, legislative and administrative framework within which living and non-living resources are managed within the State. (para. 2.3.2) The only areas where the Commonwealth takes overriding responsibility for environmental policy development are (IGAE para. 2.2):

• foreign policy, particularly entering into international conventions and ensuring that international obligations are met • the prevention of situations where the policies and practices of one State have significant adverse effects in another jurisdiction.

The EPBC Act (see Chapter 7), for example, is designed to implement Australia's obligations under specified international nature conservation conventions. Even in areas where the interests of the Commonwealth are recognised, the States are allowed a significant consultative role.

The role of the courts [1.590] The courts have a major role to play in interpreting legislation of the NSW and Commonwealth Parliaments, but they do not play an independent role in areas where the existing legal response to environmental problems is considered inadequate. Although judges were once active in creating new law, producing what is known as the common law, the courts are no longer prepared to get involved in developing a completely new area, such as environmental law.

This is not to say that judges no longer "make" new law. They will deny that they ever do this - but they certainly do have a creative role to play in interpreting the vague words of the Constitution, legislation and the existing common law. Frequently they fill in gaps that parliament has never really thought about. Courts also have the job of interpreting the common law in those areas where it is well established and has not been changed by legislation, for example the law of nuisance (see [2.160]-[2.240]). There are opportunities here for creativity in interpretation, and for extending the boundaries of these areas.

The National Environment Protection Council [1.560] The National Environment Protection Council was set up by the National Environment

Protection Council Act 1994 (Cth), and by complementary State legislation, to implement provisions of the IGAE. The Council has powers to direct the policy of the States where a two-thirds majority of its ministerial members can be obtained (s 28). However, its operations are essentially limited to pollution control and waste recycling and disposal (s 14(1); see [9.50]-[9.110]). In these areas it can make national environment protection measures and assess and report on the implementation and effectiveness of these measures in the States and Territories (s 12).

The Commonwealth's fiscal powers [1.570] Apart from direct legislative intervention, the Commonwealth can use its fiscal powers to exert influence in the environmental context. For example, under section 96 of the Constitution it can make tied grants to the States. That is, the Commonwealth can stipulate what

Sometimes courts act as tribunals, hearing appeals on the merits of particular development proposals and exercising discretion rather than applying legal rules (see the discussion of discretion at [1.300]). In NSW, the Land and Environment Court has an extensive jurisdiction to hear merit appeals, often from local council decisions on development applications (see [2. 730]-[2. 780] ).

29

2 Building blocks of environmental law Dr Peter Williams Faculty of the Built Environment University of New South Wal es

Planning by private agreement ............................................................................................................................ [2.20] The law of nuisance ................................................................................................................................................. [2.160] Planning ......................................................................................................................................................................... [2.250] Administrative law ................................................................................................................................................... [2.350] The role of criminal law .......................................................................................................................................... [2.550] Economic instruments ........................................................................................................................................... [2.720] The role of the courts ............................................................................................................................................... [2.730]

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[2.10]

[2.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979.

This chapter discusses the building blocks that make up environmental law and the processes through which environmental law is implemented. Environmental law has its foundations in both the common law, developed by the judiciary and in legislation or statutes, enacted by Parliaments. Some of the building blocks, such as the law of nuisance which is part of the common law, no longer play a significant role in regulating the relationship between human beings and their environment, but they were an important first step in the historical development of environmental law. On the other hand, the restrictive covenant, another early common law development, which allowed landholders to regulate neighbouring land uses through agreement rather than regulation, has further evolved under the influence of legislation into an important policy instrument for achieving environmental objectives consensually.

Planning law initially emerged through legislative initiatives in urban environments to regulate development. In Australia it has evolved into what is now the lynchpin of environmental law. The core piece of environmental legislation in New South Wales is the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). It operates in both urban and rural environments, not only by facilitating appropriate human development of land and natural resources while mitigating impact on the natural environment, but also by sanctioning incompatible development in sensitive environments to be outlawed altogether. Environmental criminal law directly addresses those whose activities may damage the environment. It may prohibit certain behaviour altogether. But this is relatively rare in an environmental context. Here, as discussed in Chapter 1, the practice is usually to require those who want to carry out activities that will have an impact on the environment to apply for an approval and if they are granted one, to carry out the activity in accordance with the terms of the approval. If they breach those conditions, or go ahead without getting any approval at all, they commit a criminal offence.

Administrative law is addressed to the public officials who make decisions on the preparation and making of plans and whether to grant approvals. Even though legislation allows them a great deal of discretion when it comes to making decisions (see [1.300]), and the courts are wary of becoming involved in usurping this discretion given that it has been granted by Parliament, the courts will nevertheless insist that decision-makers stay within the procedural ground rules set by Parliament and principles established by the common law.

[2.30]

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values. A big breakthrough took place when the courts decided that, in certain circumstances, these private agreements bound not only the original parties to the agreement but also those who subsequently purchased land from them. These devices for restricting land use are known as covenants and easements. They continue to exist today on many land titles, and can still be created by those who want to supplement the land-use regulations contained in environmental plans made by local and State Government. Covenants and easements form part of the basic doctrines of property law, which were devised at a time when governments played little part in planning the use and development of land. However the common law, through covenants and easements, provided the means for private landowners to regulate the use of land by private agreement. Today covenants and easements remain the two areas of the law of property primarily concerned with the planning of land use by private agreement. A covenant is simply an obligation imposed on the owner of land. The law of covenants affecting land governs the enforcement of such obligations by and against persons who were not parties to the original agreement. Under the law of easements a landowner may acquire a limited interest in nearby land owned by another person (see [2.20]; [2.100] below). Common law mechanisms such as covenants and easements have, for hundreds of years, provided a way in which property owners could impose restrictions on land, including on future owners of that land. Often these restrictions were imposed to maintain amenity (for example covenants mandating the use of certain building materials or setting of building lines or setbacks) or provide access (for example easements for provision of utility services and rights-of-way), at a time when statutory planning controls did not exist or were still in their infancy. In more recent decades, government has also used these mechanisms, typically through requiring property owners to execute covenants or easements over their land, often as a condition of gaining statutory planning permission or development consent.

Restrictive covenants [2.30] Typically, a person subdividing land will want to restrict the activities of purchasers on the subdivided lots in order to preserve the amenity of any land retained, or to preserve its value if the ultimate intention is to sell off all the land. This can only be done successfully if:

• the burden of complying with the restrictions placed on the first purchaser also binds future purchasers, and • the benefit of being able to enforce the restrictions passes to purchasers from the original seller.

Covenants and easements

At one stage in the development of the law, it appeared that the courts were prepared to adopt the broad principle that anyone who took title to land knowing there was an agreement relating to its use was bound to comply with it. This has since been rejected in favour of a much narrower approach, aimed at allowing anyone who owns land and sells off part of it to protect the value of the land retained.

[2.20] Most of the provisions dealing with what can and cannot be done on land in NSW are now found in legislation or planning instruments made under the EPA Act. However, long before government became involved in strategic land use planning, private landholders attempted to influence their neighbours' use of land by entering into voluntary agreements with them, or impose restrictions or obligations on their own land, in the interests of preserving their land

Statutory based planning, building and subdivision controls were imposed on land by government during the course of the 20th century. However, the restrictive covenant is illustrative of the proposition that, under common law, restrictions also attach to the user of private property. At law, the restrictive covenant was (and continues to be) an agreement about land use which binds the landowning covenantor who enters into the agreement, as well as the

Planning by private agreement

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convenantor's successors in title, thus creating an enforceable proprietary interest. To this end, the restrictive covenant was utilised in the pre-planning era to achieve planning objectives or to impose built form controls.

[2.80]

• •

Making a covenant binding [2.40) The law in this area is complex. In essence, if both the benefits and the obligations of an agreement are to be binding on current and future owners (to "run with the land") some conditions must be satisfied. The agreement must:

• • •

be known to the purchaser of land burdened by it be intended to restrict the use to which the land can be put even when bought by a subsequent purchaser benefit or protect neighbouring land held by the person who wishes to enforce the agreement and who was intended to have the benefit of it.

chapter 2 Building blocks of environmental law

the easement, restriction or obligation is obsolete as a result of changes in the use of the land benefited, or in the character of the neighbourhood or other relevant circumstances, or if continued, would prevent reasonable use of the land subject to the easement, restriction or obligation, without any practical benefits to those entitled to enforce the easement, restriction or obligation.

A covenant only prevents reasonable use of land if it means that no reasonable use of the land is possible unless the restriction is modified or extinguished (Frasers Lorne Pty Ltd v Joyce Goldsworthy Burke [2008] NSWSC 743). A restriction will not be modified or extinguished simply because it restricts development allowed by a land use plan, such as a local environmental plan (see [3.90]; [3.220]) made under the EPA Act (see, for example, Post Investments Pty Ltd v Wilson (1990) 26 NSWLR 598; Eucalypt Group Pty Ltd v Robin [2003] 2 Qd R 488; [2003] QSC 63 ). Even a planning approval given by a local council does not allow a restrictive covenant to be overridden Uessica Estates v Lennard [2007] NSWSC 1434).

The basic idea is that one landholder has promised not to do something on their land for the benefit of neighbouring land, and that, in the future, purchasers of the benefited land will be able to see that this promise is kept by purchasers of the burdened land. This is what is meant by a restrictive covenant.

In other words, at first sight it seems that the intentions of a land use plan can be thwarted by a restrictive covenant. This raises the broad policy question of how far landholders should be able to tie up neighbouring land uses through covenants.

Examples of restrictive covenants

[2.80) This problem is now addressed by a provision in the EPA Act (s 28(2)) that allows a land use plan made under that legislation to set aside covenants, agreements and regulatory instruments to the extent necessary for development (see, generally, in relation to environmental planning instruments, Chapter 3). The Governor must first give approval for these steps to be taken (s 28(3): see Cha/lister Ltd v Blacktown City Council (1992) 76 LGRA 10). In Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341 at 348, Pearlman J stated that section 28 was "designed t:o facilitate development and to overcome impediments placed on development so as to avoid sterilisation of land and it recognises that the ultimate regulatory provisions in relation to the carrying out of development lie in the Environmental Planning and Assessment Act".

[2.50] Restrictive covenants still play an important role. Examples include restrictions on:

• the height of buildings on neighbouring blocks, especially for the preservation of views • the number of houses that can be erected on a lot • types of building materials that can be used • the type of fencing that can be erected (if any) • the use to which particular premises can be put (for example, residential only). Positive covenants

[2.60) A positive covenant requires the landholder to do something on their land (for example, carry out management activities such as controlling weeds). In the absence of special provisions in legislation (see below), positive covenants can only be enforced against the original landholder who entered into the agreement. They are not enforceable by and against subsequent purchasers of land. However, covenants expressed in positive terms may still be interpreted as imposing restrictions and, therefore, as being restrictive covenants. The basic question is whether they require anything to be done on the land. If they do, they will not be enforced by the courts as restrictive covenants.

Under planning legislation

In practice, NSW environmental planning instruments generally include a clause that allows the body making the decision to permit development to go ahead even if it is in breach of a restrictive covenant. Under the Standard Instrument Local Environmental Plan (LEP) this is provided by clause 1.9A - Suspension of covenants, agreements and instruments. In this case however, the operation of the clause may, pursuant to s 28(3) of the EPA Act, not extend to certain agreements (many of which are positive covenants), including (cl l.9A(2)):

• • •

Modifying or removing covenants and easements

covenants imposed by a local council instruments under the Crown Lands Act 1989 various agreements under the National Parks and Wildlife Act 1974, Nature Conservation Trust Act 2001, Threatened Species Conservation Act 1995, and Environmental Planning and Assessment Act 1979

Through the courts

•

[2.70) A developer can apply to the Supreme Court under section 89 of the Conveyancing Act 1919 (NSW) for an order to modify or extinguish an easement or a restriction or obligation imposed by a covenant. The grounds on which the court can make such an order include:

For an example of a poorly drafted clause, see Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121. Such problems of drafting, at least as far as LEPs are concerned, have presumably now been overcome by the Standard Instrument.

property vegetation plans under the Native Vegetation Act 2003.

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[2.90]

Restrictive covenants and conservation [2.90] To those who believe that the public interest is best served by government decision making through the land use planning system, private agreements about land use appear as a nuisance. However, covenants could play a more positive role if they were available to non-government conservation organisations, or to government bodies concerned with conservation. Instead of purchasing land, these bodies could ensure its conservation in the hands of private landholders by inducing them to enter into arrangements under which they were paid to manage the land in a particular way. Alternatively, these bodies could purchase land and then sell it off subject to covenants - for example, restrictions on land clearing to preserve wildlife habitats or restrictions protecting buildings of heritage significance. Agreements imposing not simply restrictions but obligations to actively manage land or maintain buildings in a particular way could also play a very useful role.

• •

Two obstacles stand in the way of using restrictive covenants to achieve these objectives: those who wish to enforce a restrictive covenant against future purchasers of the land must retain neighbouring land that is benefited by the covenant (London County Council v Allen (1914) 3 KB 642) the courts will not enforce covenants requiring active management of the land because these are not restrictive covenants (Haywood v Brunswick Permanent Building Society (1881) 8 QBD 403).

New approaches in legislation [2.100] Early legislative initiatives did not deal with these obstacles. Provisions in the National Parks and Wildlife Act 1974 (NSW) permit the National Parks and Wildlife Service, through the Governor, to enter into agreements with private landholders for the creation of wildlife refuges (s 68). These agreements can involve restrictions on the use of land or obligations to do things. They cannot, however, be enforced against people who buy the land from those originally entering into the agreement, as the legislation specifically allows agreements to be terminated at any time by existing or future landholders (s 68(3)(6)).

Covenants and easements under Conveyancing Act Easements under Conveyancing Act, ss 88B and 88K [2.11 0] The Conveyancing Act 1919 (NSW) provides for easements, as well as restrictive and positive covenants, to be created by being included on plans of subdivision or consolidation of land (s 88B). Specifically the provisions require that a plan cannot be lodged with the office of the Registrar General {presently Land and Property Information) for registration unless it indicates any easements, restrictions on the use of land or positive covenants, that are intended to be created burdening or benefitting land comprised in the plan. Easements may be created over land for purposes such as for (s 88A(2A): right of access, repairs, sewage, drainage of water, electricity purposes, services, and water supply. As such, an easement represents a partial interest, or estate, or right over land owned by someone else. Easements may also be created by the Supreme Court of NSW (s 88K). The Court may make an order imposing an easement over land if the easement is reasonably necessary for the effective

[2.130]

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use or development of other land that will have benefit of the easement (s 88K(l)) . The Court may make the order if the following conditions are satisfied (s 88K(2)):

• • •

use of the land having the benefit of the easement will not be inconsistent with the public interest, and the owner of the land to be burdened by the easement and each other person having an estate or interest in that land can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement, and all reasonable attempts have been made by the applicant for the order to obtain the easement but have been unsuccessful.

Covenants under Conveyancing Act, sections 880 and 88E [2.120] Provisions in the Conveyancing Act 1919 (NSW) allow government departments and authorities, and local councils to attach covenants to particular pieces of land, and these can be enforced against subsequent purchasers of the land even where no neighbouring land to be benefited by the covenant is owned by the public body. Under section 88E, these public bodies can enter into voluntary agreements relating to land use with existing landholders. Under section 88D, public bodies can sell land owned by them subject to covenants. Subsequent purchasers of the land will be bound by the covenants. The National Trust has also been given the power under section 88D (National Trust of Australia (New South Wales) Act 1990, s 25), but not other non-government conservation organisations.

Originally, these covenants could only impose restrictions on land use. They could not impose obligations to take active steps to protect the environment. However amendments to the Conveyancing Act 1919 in 1986 now allow both positive and restrictive covenants to be made under sections 88D and 88E (thus modifying the common law position recognising only restrictive covenants) . These amendments were actually designed to facilitate development of land rather than conservation of the natural environment, and the definition of "public positive covenant" in the legislation reflects this (s 87A). Under these provisions, a public authority can, for example, sell off airspace over a railway station or public car park for development, on the basis that the completed buildings will be maintained and insured by successive owners. Or a council or public authority can dispose of land on condition that the purchaser and any subsequent owner will develop it within a certain time, and in accordance with certain standards. However, the definition of "public positive covenant" is expressed simply to "include" these sorts of activities. It is not necessarily meant to be comprehensive. It may also allow other types of positive covenant, such as a covenant requiring land to be actively managed for nature conservation in accordance with a management plan.

Covenants and development consent [2.130] In practice, those granted development consent under the EPA Act (see Chapter 5) are sometimes required to enter into covenants under section 88E as a condition of the consent: for example, a condition requiring registration of a positive covenant to maintain a stormwater detention system (NTL Australia Ltd v Willoughby Council [2000] NSWLEC 244 ).

One advantage of putting a section 88E covenant in place is that it must be recorded on the register and potential purchasers of the land will be made aware of it when they do their searches. They are less likely to become aware of restrictions on land use that are simply attached as conditions of development consent (Fortunate Investments Pty Ltd v North Sydney Council

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[2.140]

(2001] NSWLEC 70). The other advantage is that by registering a covenant, alternative and additional enforcement mechanisms become available (see Conveyancing Act 1919, ss 88F - 88J). Where, for example, a public positive covenant which requires works to be carried out on land is breached, the public authority can enter the land, carry out the works itself and then charge the cost to the person bound by the covenant (s 88F(2)). Alternatively, it can make an application to the courts to compulsorily purchase the land (s 881). However, there is a line of Land and Environment Court authority indicating that only in exceptional cases is it appropriate to require an applicant for development consent to enter into a section 88E covenant as an alternative to simply relying on planning controls (MacDonald v Mosman Municipal Council (1999) 105 LGERA 49; Our Firm Facility Pty Ltd v Wyong Shire Council [2001] NSWLEC 243; Hockitt Pastoral Co Pty Ltd v Great Lakes Shire Council [2007] NSWLEC 514).

Conservation agreements [2.140] Covenants are now being rediscovered as a contemporary tool at the disposal of planners to manage urban growth and other land use change, so as to facilitate the protection of natural and built environment resources such as biodiversity, scenic landscapes, agricultural land and heritage values. For example, provisions are now in place to allow government bodies to enter into voluntary agreements - covenants - with landholders to achieve conservation objectives. These agreements can contain both land-use restrictions and commitments to actively manage the land for conservation.

The NSW Environment Minister can enter into voluntary conservation agreements with private landholders under the National Parks and Wildlife Act 1974 (ss 69A- 69K), and these bind future purchasers of the land once they are registered (see [12.1610]). However these agreements may be set aside under the provisions of section 28 of the EPA Act, discussed above, to allow development to proceed (s 69KA) though, as discussed above, the operation of s 28 may be affected where clause 1.9A of the Standard Instrument is adopted in a local council's LEP. Public bodies can also apply to carry out development in these areas, and the Minister can grant consent where there is "no practicable alternative" or the area is needed "for an essential public purpose or for a purpose of special significance to the State" (s 691(2)). Conservation covenants are integral to the operation of the NSW Biodiversity Banking and Offset Scheme managed by the Office of Environment and Heritage. Usually referred to by its shorthand title of "Bio banking", the scheme was established in 2008 following 2006 amendments to the Threatened Species Conservation Act 1995 which created a new Part 7 A ("Biodiversity Banking"). Biobank sites are formalised by means of biobanking agreements entered into between the NSW Minister for Environment and the owner(s) of the land concerned. A biobanking agreement is a conservation covenant that is attached to the land title (see [12.1620] for more detail). Property vegetation plans made under the Native Vegetation Act 2003 are a further example of recent utilisation of conservation covenants in NSW (see [12.1640]). The Commonwealth Environment Minister can also enter into conservation agreements with landholders under the provisions of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (ss 304 - 312; see [12.1660]).

[2.160]

chapter 2 IBuilding blocks of environmental law

The Nature Conservation Trust [2.150] The Nature Conservation Trust Act 2001 took the further step of setting up a special trust. The Nature Conservation Trust is not a government body (s 9), although it has to get the Environment Minister's approval for its business plan (s 24).

The Trust's objectives include protecting and enhancing natural heritage by: encouraging landholders to enter into co-operative arrangements for the management and protection [of private land] that is significant for the conservation of natural heritage (and any cultural heritage that is associated with natural heritage (s l0(a)). "Natural heritage" includes ecosystems and ecosystem processes and biological diversity (s 3). The Trust can enter into, monitor and enforce a new type of voluntary conservation agreement known as a trust agreement (Nature Conservation Trust Act 2001, s 11(2)(e) and Part 3: see [12.1630]). Trust agreements can (s 33):

• • •

impose land-use restrictions require the Trust or the landholder to carry out active management, such as weed control provide financial, technical and other assistance to the landholder under the Trust's Stewardship Program.

However the agreement only binds future purchasers if the landholder consents to it being registered (s 37). Trust agreements are enforceable in the Land and Environment Court, although damages cannot be awarded unless the breach was intentional or reckless (s 38). But once again, they may be overridden so to allow development to proceed, by resort to the provisions of section 28 of the EPA Act, discussed above (s 38A). The Nature Conservation Trust also operates a revolving fund scheme (ss 7, 11(2)(a)) under which it purchases high conservation value private land, registers a protective covenant on the title and then sells it off, using the proceeds to purchase other land.

The law of nuisance [2.160] Restrictive covenants begin their lives in voluntary agreements, although they have the effect of regulating the use to which future purchasers can put the land. In the absence of agreement, the common law, through the law of nuisance, regulated land uses in order to ensure a minimum level of amenity at a time when land was used in a haphazard fashion according to the dictates of the marketplace. Because conflicts about land use arising from such things as noise, smells and air pollution had not been anticipated and avoided by strategic land use planning, the question was usually whether anything could be done about them after the event. Even now land use planners are by no means immune from mistakes. In one famous English case, residential development was allowed next to a cricket ground, with the result that householders had cricket balls landing on and damaging their property, giving rise to nuisance proceedings (Miller v Jackson (1977) 1 QB 975).

The law of nuisance continues to offer remedies - injunctions and damages - to people who are prepared to take civil (rather than criminal) action against those causing certain forms of

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harm. The fact that development has been approved under normal land use planning procedures does not normally exempt it from the law of nuisance, a position recently affirmed by the NSW Court of Appeal in Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382. A useful definition and synopsis of the legal principles relating to nuisance is presented in Gales Holdings, with the Court stating [at 131-321] that: A nuisance is either a continuous or recurrent state of affairs. An occupier of land will be liable for continuing a nuisance if, with knowledge or presumed knowledge of the state of affairs, the occupier fails to take reasonable steps to bring it to an end despite having had ample time to do so (Hargrave v Goldman (1963) 110 CLR 40 at 59-61; [1963] HCA 56) ... Nuisance is a wrongful interference with another's enjoyment of land by the use of other land occupied or owned by the alleged wrongdoer ... [However] there must be more than mere harm being done to another's enjoyment of land. The harm must be caused by the alleged wrongdoer's use of its own land. The word use connotes that a degree of personal responsibility is usually required, even though a deliberate or negligent act is not. A deliberate or negligent act will however be sufficient. A balance must be maintained between an owner or occupier's right to do what it likes with its land and a neighbour's right not to be interfered with. The proper test to apply in most cases is what is reasonable, according to the ordinary usages of a particular society. While negligence is not essential, fault of some kind is almost always necessary (Elston v Dore (1982) 149 CLR 480 at 487-488; [1982] HCA 71).

Limitations of the courts [2.170] There were and are obvious limits to the law of nuisance. The courts cannot reorganise an entire area to remedy problems arising from conflicting land uses. Individual litigants have to bring problems to their attention. Apart from the fact that the courts do not have the expertise or the resources to plan land use for large areas, their sole concern is with resolving the dispute between the parties to the litigation. The burden of proof is on the party alleging the nuisance to prove that it exists on the balance of probabilities (the standard of proof in civil actions). Where the proceedings are brought in an attempt to prevent a nuisance from being caused in the first place (quia timet proceedings), the standard of proof is even higher (see Kent v Johnson (1973) 21 FLR 177: see [2.220]).

The courts do not have the halfway house, available to planners, of rezoning land while protecting existing uses (see [1.280]). The only responses they can make are:

• to order one party to pay compensation to the other • to order a party not to engage in the harmful activity • to order a party not to engage in the harmful activity, but suspend the order to allow it to put its house in order • to decide not to intervene.

The courts are prepared to intervene in these situations only if damage has been caused, or is likely to be caused unless action is taken to prevent it. In the context of nuisance, the notion of damage has been interpreted quite liberally. It includes not only injury to property but also interference with pleasure, comfort and enjoyment. But it does not include interference with the enjoyment experienced by those viewing a particular landscape (Kentv Johnson (1973) 21 FLR 177).

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The rules about who can sue and in what circumstances are very technical and further limit the usefulness of the law of nuisance as a technique of environmental management.

Private nuisance [2.180] The law makes a distinction between public and private nuisance. A private nuisance is an unreasonable interference with the use and enjoyment of land. Private nuisance had its origins in a concern to protect occupiers against interferences with the use of their land. Consequently, in Halsey v Essa Petroleum Co Ltd (1961) 2 ALR 145, the court held that damage to a car parked on the road outside the plaintiffs' house, caused by acid smuts from the defendant's factory, could not amount to a private nuisance. On the other hand, damage to the plaintiffs' washing in their backyard did.

The essential aim of the law of private nuisance is to protect the value of land, not to encourage effective environmental management. The law seeks to balance the conflicting demands of neighbouring occupiers to use their land as they wish and in accordance with what they see as their private property rights. Damage in the form of personal discomfort caused by smells and noise is downgraded in comparison with physical damage to property. The rule is that in determining whether interference with personal comfort amounts to a nuisance, the nature of the area must be taken into account - for example, is it an industrial area? This issue does not arise where injury to property occurs (see St Helen's Smelting Co v Tipping (1865) 11 ER 1483).

Case study: Environmental management and the law of nuisance [2.190] In some situations, the law of nuisance can have a positive effect on environmental management. In Van Son v Forestry Commission (1995) 86 LGERA 108, the court found that the Forestry Commission's work on a haulage track, and subsequent logging activity, was a substantial and unreasonable interference resulting in discomfort in the plaintiff's use of land. The Commission's activities had resulted in the siltation of a creek and the pollution of a pond, the plaintiff's only source of water for domestic purposes, garden and stock. Consequently, private nuisance had been established. Justice Cohen found that, in spite of the enactment of NSW legislation relating to the management of water resources, riparian owners retained their residual common law right to use and take water for domestic purposes, without sensible alteration in its character or quality. Water quality continues to be protected under the common law doctrine of nuisance. Although the Forestry Commission raised the defence that it was authorised to carry out the work by legislation, Justice Cohen held that this defence is only available if statutory powers are exercised without negligence. [2.200] For a recent review of the law of private nuisance by the Chief Judge of the Land and Environment Court, see Robson v Leischke (2008) 72 NSWLR 98; [2008] NSWLEC 152. See also Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382.

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[2.220]

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Public nuisance [2.210] A person whose occupation of land has not been interfered with may still be able to

Intrusion on the landscape?

bring an action in public nuisance. A public nuisance is one that materially interferes with public health, safety, property, enjoyment or comfort. For example, excessively noisy quarrying operations in a quiet residential area or smells caused by boiling offal on a poultry farm may amount to a public nuisance. In Baulkham Hills Shire Council v Domachuk (1988) 66 LGRA 110, it was held that smells and flies from a mushroom composting operation could amount to a public nuisance.

One line of argument centred on the suggestion that the tower would permanently disfigure the natural skyline of Canberra. The court could find no previous instances of interference with such an amenity being regarded by the law as a nuisance. It also considered such matters as being more appropriately dealt with in the planning context. It had heard a number of witnesses taking opposing positions on the aesthetic quality of the tower, and clearly felt that it was inappropriate for a court of law to espouse one particular value position so openly and obviously. (See also Bathurst City Council v Saban [No 2) (1986) 58 LGRA 201, where it was held that unsightliness alone does not amount to nuisance.)

The origins of public nuisance lie in the criminal rather than the civil law. Nowadays, for a private individual to bring a civil action in public nuisance, there must be evidence that they have suffered special damage over and above that suffered by the public as a whole. For example, the plaintiffs in Halsey v Esso (see [2.180]) did succeed in an action in public nuisance for the damage caused to their car. In the absence of evidence of special damage, the only alternative is to attempt to persuade the Attorney-General to bring an action as a representative of the public, or at least to consent to an action by private individuals, with a view to securing an order preventing continuation of the activity.

Case study: Black Mountain Tower [2.220] The difficulties involved in seeking remedies through a nuisance action are· illustrated by the litigation that followed the decision to construct a multi-purpose communication tower, as well as tourist and restaurant facilities, on Black Mountain, near Canberra (Kent v Johnson (1973) 21 FLR 177). There was ample opportunity for the issues to be dealt with in a land use planning context, and one of the main points made by those opposing the tower's construction was that the relevant planning procedures had not been fully complied with. But their more general frustration with the planning process was revealed by their attempt to argue, in addition, that the tower would constitute a nuisance.

What the objectors had to prove

The objectors were not in a position to show that occupation of their land would be interfered with in any way by the tower and, therefore, they had no action in private nuisance. Nor were they able to show that they had suffered special damage, so as to permit a private action in public nuisance. As a result, the first thing they had to do was to persuade the Attorney-General to bring the action formally, even though they would in fact be the ones conducting it. This they eventually managed to do. The court was prepared to accept that there would be a public nuisance if construction of the tower involved a substantial, harmful, unlawful interference with land used and enjoyed by members of the public. This was the anthropocentric or human-centred framework within which the debate was to be conducted. There was no room for argument based on the need to preserve the natural environment as an end in itself. The issue revolved around how the environment should be exploited by human beings. Even the focus on human needs was a short-term one, framed in terms of recreation rather than the future benefits to humans that might arise from the conservation of biodiversity (for example, new medicines from plants).

Disturbance to the land?

A second line of argument focused on physical disturbances to the land resulting from construction of the tower. One of these involved the use of an old quarry pit as a soil dump for a period of two years. Within its frame of reference, the court did not regard this as constituting a substantial interference with public enjoyment of the park, not only because this particular area was not well endowed with native flora but also because there was no evidence that anybody visited it. Threats to biodiversity?

More significantly, it was argued that disturbance of the soil would contribute to the spread of a fungal disease that attacked trees and other vegetation. Here the court had to feel its way through a maze of scientific evidence relating to the extent of the likely impact. Once again it decided, after examining the nature and extent of the soil disturbance involved, that there would be no substantial effect on public enjoyment of the park. One comment here is particularly significant. Although there was no evidence that those parts of the park of particular interest to botanists would be affected, the court expressed doubt as to whether this would have amounted to a public nuisance even if there had been such evidence. Although it is not necessary to show that everybody would be affected by a nuisance for it to be classified as public, the particular people affected must amount to a substantial group and not constitute merely a minority interest. Another argument was based on the fact that the presence of the tower would attract increased numbers of visitors to the reserve. This would result in the increased importation of seeds of exotic species of plants into the reserve, and increased damage to vegetation and ground because of the greater number of people walking around. Once again the argument was rejected. The only way in which it could have succeeded would have been if the court had been convinced that the resulting changes to the reserve would have materially interfered with public use and enjoyment. But this would have involved the court in accepting that such interference could result from too many members of the public seeking to exercise their right of weekend enjoyment. Arguments based on the need to protect the environment from too enthusiastic a public could not have succeeded, given the anthropocentric legal framework in which the case had to be conducted.

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Traffic problems

There was only one ground on which the court was prepared to find that there was a public nuisance. This was that the existing road facilities could not cope with the increased amounts of traffic generated by the existence of the tower, with the result that members of the public would be seriously inconvenienced in exercising their right to use and enjoy the park. It is ironic that a state of affairs that would have actually reduced the attraction of the tower (and thus would have helped protect the natural environment by limiting the number of people visiting the reserve) was the only aspect of the construction that the court held amounted to a public nuisance. This "problem" was eventually solved by traffic control arrangements, and the tower was built.

Nuisance and pollution [2.230] Pollution control is the main area where the courts have played an active role through the law of nuisance. Issues range from quarrels between neighbours about noise, to clashes between industry and nearby residents about industrial pollution. The outcome is always uncertain: the court must balance one person's right to use their land for their own purposes against another's right to reasonable enjoyment of their land or the public domain. The role of the law of nuisance is more limited where water pollution is involved. Cases usually only come to the attention of the courts if:

• there is damage to the foreshore occupied by a private individual, giving rise to an action in private nuisance • water is being extracted for use on land (see Van Son, [2.190]) • flow of water onto land, specifically directing the flow of stormwater runoff onto land (see

[2.260)

offensive noise to bring proceedings in a Local Courts to obtain a noise abatement order (see [9.2120]). This makes resort to nuisance proceedings an increasingly unattractive option. Nevertheless, in certain situations they can still be a useful tool for those concerned to reduce the polluting impact of activities.

Planning Objectives of planning [2.250] Planning legislation in NSW has evolved from British town planning legislation, which emerged as a result of post-industrial urban reform. This legislation had its origins in a concern to address the squalid conditions of burgeoning British urban centres from the late 18th century onwards. The focus was on public health and amenity in urban environments. The role of town planning was to create a better physical environment in our towns and cities by providing people with pleasant structures in which to live and work, and adequate recreational facilities, including open space. The belief was that physical surroundings were major determinants of both social behaviour and personal satisfaction. By improving them, it was thought that we would improve people's behaviour and happiness. Only with the enactment of the NSW Environmental Planning and Assessment Act 1979 (EPA Act) was the potential created for the urban planning system to become seriously engaged in rural land use issues, and environmental issues more generally. This legislation, interacting with threatened species and other environmental legislation, is now the primary vehicle for conserving ecosystems on land in private ownership. It also has a vital role to play in ensuring that polluting development is appropriately located. The objects of the Act (s 5) include encouraging:

• the proper management, development and conservation of natural and artificial resources,

Gales Holdings Pty Ltd v Tweed Shire Council (2013) 85 NSWLR 514; [2013] NSWCA 382)

• a person can show that they have suffered special damage over and above that suffered by the public as a whole (the basis of an action in public nuisance).

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•

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 (s 5(a)(i)) 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 (s 5(a)(vi)), and

Legislation and pollution control

•

[2.240] The law of nuisance has now lost much of its relevance in the field of pollution control because of legislation that attempts to take a systematic approach to such problems (see Chapter 9). Instead of relying exclusively on individual members of the community to take the initiative in bringing pollution problems to light, the legislation (primarily the Protection of the Environment Operations Act 1997) provides for the NSW Environment Protection Authority and local councils to play the major role in both prevention and enforcement.

Plans may be made for achieving these objects (see Chapter 3 ). In some cases, they must be preceded by environmental studies that examine both the physical opportunities and constraints of the area (for example, existing land uses, slopes and threatened ecosystems), and also its socioeconomic character, including such factors as the needs of different groups of people in the area, viewed in the light of current social and economic imperatives.

Nothing in the pollution legislation says that people cannot continue to bring actions for nuisance. However, the courts can award compensation for damage to property in criminal prosecutions under the pollution legislation (see [9.1920]), and the public have broad rights under this legislation to bring civil proceedings to obtain restraining orders (see [9.2060]). The legislation also allows individuals claiming that their occupation of premises is affected by

ecologically sustainable development (s 5(a)(ii)).

Example of strategic planning: increasing industrial use [2.260] Suppose an area is under pressure to expand in the industrial sector, and current plans do not allow for this.

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On one level, environmental planners will want to examine the physical nature of proposed sites and their existing uses. Are they flood-prone? Are threatened species or ecological communities present? Will the development involve the loss to agriculture of fertile rural land? What will be its impact on any outstanding natural features? Then there is the question of whether existing services can meet industrial demand for such things as water and electricity. What will be the effect on traffic flow, noise levels, and air and water quality? What are its social impacts, and effects on cultural (Indigenous and European) heritage? On another level, the planners will want to know whether employees are likely to be attracted from within the area or whether they are likely to come from outside. If they are to come from inside, the planners will want information about whether there is an untapped pool of labour that has the required skills, or that industry is prepared to train to the required standard. If not, there is the risk that higher wages might draw people away from their existing employment in fields vital to the social and/or economic needs of the community. If labour is to be brought in from outside, the planners will need a detailed analysis of the position with regard to housing and community facilities, such as education, health and recreation. Questions such as these may have implications beyond the local level, requiring consideration in terms of regional or even State policy. There may, for example, be a policy to attract industry to areas of the State where unemployment is particularly high, or to attract particular kinds of industry. For this reason, environmental planning must proceed at these levels, as well as the local one. The environmental planner recognises that all the choices in relation to the structure of our physical environment are interrelated. A decision made in a particular context may have an unanticipated effect in another. So, for example, moves to encourage the expansion of industry in a particular area may result in making the existing residents poorer if, in practice, the new industry attracts better qualified labour from outside. The newcomers will put pressure on limited existing resources, but will be in a better position to secure them if they are better paid. A good example is housing. Shortage of affordable housing and pressure on other facilities may, in turn, result in increased demands on the social welfare system, for accommodation, counselling and childcare. Planners try to arrange human use of land so that it makes sense in terms of competing social, economic and environmental considerations. The alternative to some form of regulatory system would be to leave allocation of land uses to market forces, with the result that land would be used in such a way as to maximise net return over a foreseeable period of time. No coordinated attention would be given to the overall balance of land use in the community, and the interactions between land use and social and economic factors. Protection of the natural environment would receive a very low priority in the marketplace.

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obtained. The local council would then have the task of deciding, on the facts of each case, whether the proposal should be allowed to go ahead. Under such a system, there would be no general legally binding restrictions on the type of activity that can take place in any particular area. For example, there would be no legal provisions ensuring that industrial development is excluded from residential areas. In practice, planners would have a strategic plan relating to the future shape of the area, and they would use this to guide their recommendations in individual cases. But strategic planning of this kind does not necessarily have to take the form of legally binding documents. The focus of the law in this version of a planning system would be on the case-by-case assessment of particular projects (project control), rather than on strategic planning. The advantage of this sort of approach is its flexibility. It acknowledges that in practice it is extremely difficult to predict future movements in the demand for land for different purposes, and equally hard to anticipate the likely reaction to these demands by those with the responsibility for making decisions. It allows planners to adjust their strategic plans to take account of changing values in the community (for example, a growing preference for inner-city living), without having to go through any elaborate legal plan-making procedures. Assumptions and predictions can be constantly revised in the light of cold, hard facts. Moreover, under this system, strategic planners would not have to express their intentions in the precise language that the law demands. The problem with this approach is its uncertainty. Ideally, developers want to be in the position of knowing well in advance where particular types of development are likely to be approved, and where there is no point at all in making an application. They also want to avoid expensive delays. In addition, a flexible system of this kind means that land values will be in a state of flux. If land can be used in a number of different ways provided that the consent of a particular body is first obtained, the value of that land depends on which use eventually receives approval.

Legally binding strategic plans [2.280] At the opposite extreme, we could imagine a planning system based on legally binding plans made in accordance with legal procedures which allocated land uses to particular areas, and prohibited them in others. Those seeking to carry out development would know exactly where development of that type could be carried out. There would be no need to seek any further approval, excluding the exercise of any subsequent discretion. There would be no role for project control.

The problem with this approach is its rigidity. In addition, it fails to provide for the proposal to be adapted to the specific site through a detailed process based on an application to carry out a particular development and careful consideration by the decision-maker, such as a local council. In the real world, we will not find such a planning system in operation.

The role of law in the planning system Planning in NSW Deciding case by case [2.270] At one extreme, legislation might simply provide that before any change of land use or development can take place, the permission of the local council, advised by its planners, must be

[2.290] In practice, the NSW environmental planning system developed under the EPA Act falls somewhere between the two extremes outlined above (see Chapter 3 for a detailed discussion). It relies on three principal techniques to regulate land use: zoning, development consents and development standards.

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Zoning [2.300) In the legally binding strategic plan - or "statutory" plan - different land is allocated to different zones indicated on a map of the relevant local area. Land use tables, contained in a written document, set out the various purposes for which land may or may not be used or developed in each zone. Plans offer a degree of predictability to owners, developers and conservationists. They prohibit development for quite unacceptable purposes in a particular zone (for example, heavy industrial development in a residential zone), or, at the other extreme, they may permit development for certain purposes without the need to get any further approval (for example, home occupations in some residential zones). At the same time, plans provide flexibility to the extent that they permit development of land in a particular zone for a range of purposes spelt out in the zoning table, provided that approval (development consent) is first obtained from the relevant authority. One question that can often arise is: into which category does a development proposal fall? For example, is it permissible or is it prohibited? This raises the issue of how the particular development should be classified under the terms of the plan. If development of the type proposed is prohibited, then it would be unlawful for the decision-maker to give approval.

Case study: Classifying development [2.310) In Cranbrook School v Woollahra MC (2006) 66 NSWLR 379; [2006] NSWCA 155, the issue was whether the Council could consider a private school's application for development consent to build a junior school on land which it had purchased adjacent to its existing facilities. The land on which the existing facilities were located was zoned "special uses - school". The recently purchased land was zoned "open space". In this zone, "community facilities" along with such things as recreation facilities and utility installations were permissible with consent but other uses were prohibited. The Court of Appeal, after carefully interpreting the plan, held that a school fell within the definition of community facilities: it was "a building or place owned or controlled by ... a body of persons associated for the physical, social, cultural, economic, intellectual or religious welfare of the community ... ". The result was that the matter went back to the Council to decide whether to give development consent to this particular proposal on this particular piece of land. This was a matter for the Council's discretion (see below). In Caltex Oil (Australia) Pty Ltd v Holroyd Municipal Council (1983) LGRA 77 it was argued that a convenience food store attached to a service station was not a separate use of the land as a shop (which was prohibited) but fell within the use of the land as a service station (permissible with consent). In support of this, it was suggested that planning purposes evolved over time in response to social changes, and that this should be reflected in adjustments to the definitions. Justice McClelland rejected the argument, emphasising that "an evolution in public habits does not transform the meaning of language". The convenience food store was classified as a shop, which was prohibited. Therefore, the Council could not legally exercise discretion to grant consent. The correct approach to dealing with the situation was

to amend the law by changing the plan. The approach now taken in more recent plans (including the Standard Instrument LEP) is to define service station expansively to include "the ancillary retail selling or hiring of general merchandise or services or both". [2.320) The initial issue in these cases is whether the facts fit a legal concept. The plan-makers have decided, for example, that certain types of development should be absolutely prohibited on certain sites. They have attempted to define these types as precisely as possible and their intentions must be implemented. This is simply a matter of interpreting the definitions in the plan and deciding whether a particular activity falls within one definition rather than another. It is a question of definition not discretion. Ultimately, it is a question of law for the courts. The answer to it determines whether there is any discretion to be exercised.

Development consent [2.330) An approval required under a plan in NSW is known as development consent. The decision on whether or not to grant consent, and the terms (conditions) of the consent is ordinarily made by a local council, the Planning Minister, other relevant consent authority or, in certain circumstances, the Land and Environment Court on appeal. While a statutory plan indicates that development for specified purposes (for example, industrial or residential) is generally appropriate within a particular zone, the decision on the precise contours of the development is delegated to the local council, the Planning Minister, or other consent authority exercising discretion (see [1.300]) in response to particular proposals made by developers.

In reaching a decision on a development application, the legislation instructs the decisionmaker to consider a range of factors set out in section 79C(l) of the EPA Act (see [5.1180]-[5.1490]). These include:

• the likely impacts of the development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality • the suitability of the site for the development • the public interest.

In any particular case, it is for the decision-maker to decide how much significance or weight to give to each consideration. It will usually have to resolve situations where some factors suggest that development should go ahead while others suggest that it should not. Different decisionmakers may decide that different factors are more important. A controlling majority of a local council elected on a pro-development ticket will weigh the beneficial social and economic impacts of development as compared with the harmful environmental impacts very differently to a "green" council. There is nothing in the EPA Act that suggests that the decision-maker must somehow strive to give these competing factors equal weight or to give an objective decision. One of the issues that has arisen is whether, when a plan provides that development for a particular purpose is permissible provided that development consent is first obtained, there is a presumption that some version of that development will be approved (albeit subject, perhaps, to stringent conditions). This issue arises in situations where plans have at some time in the past zoned a particular area for development (for example, subdivision), and more recently it has been

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discovered that the area is environmentally sensitive. In BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399, the Chief Judge of the Land and Environment Court stated: In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) [1971] 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted (at [117]). However, he then went to add that: there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project. (at 119)

Development standards [2.340] The third statutory planning device used by planners in NSW is the development standard (see [3.170]-[3.190]). Development standards are provisions in plans that lay down particular requirements that must be met by particular kinds of development. Standards may be framed in numerical terms (for example, the floor space of a particular type of building must not exceed a certain proportion of the area of the site, or blocks on which certain kinds of buildings can be erected must not be less than a particular area or width). They may require compliance with a specific condition. They may even demand the provision of particular facilities in conjunction with certain kinds of development (for example, loading and unloading facilities). In practice, the types of development standards currently contained in LEPs are prescribed by the Standard Instrument LEP (see [3.100]).

Administrative law Merit appeal and judicial review Merit appeal [2.350] A right of appeal on the merits of a proposal exists only where it is specifically provided by legislation. Where legislation provides for merit appeal (also known as administrative appeal or review), the appeal body reconsiders the detailed pros and cons of a particular proposal and substitutes its own discretionary decision for that of the original decision-maker. The availability of a merit appeal places a considerable restriction on the discretion of the decision-making capacity of the body making the original decision.

Environmental legislation often provides a right of merit appeal to those applying for an approval where it is not granted or the conditions attached are unacceptable to them. The Land

[2.360)

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and Environment Court has a substantial merit appeal jurisdiction (see [2.730]) . In determining appeals, the legislation, in essence, tells the Court to act in the place of the original decision-maker, such as a local council. This puts the Court in a difficult position when it is hearing merit appeals from heavily politicised local councils. For example, if a majority of councillors on a particular local council are elected on a platform that includes a commitment to restrict new development, decisions of the Court favouring development are alleged to interfere with the political relationship between the council and its constituents. Many local councillors argue that the Court should not be able to override decisions made by popularly elected representatives. However, in other situations, councils try to use the Court to deliberately avoid making politically controversial decisions on applications for development consent by not determining an application and thus triggering an appeal on the grounds of deemed refusal of consent. Sometime legislation provides a right of merit appeal, but to another appeal body, not the Land and Environment Court. For example, under the Heritage Act 1977, appeals from decisions by the Heritage Council to refuse applications involving items protected by heritage orders are to be made to the Minister responsible for that legislation (see [17.360]). Where an initial decision is made to grant an approval, legislation rarely provides a right of appeal on the merits to those who are aggrieved by this decision, such as neighbouring landowners or conservation groups. Where such a right of appeal does exist, it is usually referred to as a third-party appeal.

Judicial review [2.360] If legislation makes no provision for a third-party appeal and the body making the initial decision decides to grant consent, there is no way of having that decision reviewed by the courts except by applying for judicial review. There may be a volume of opinion that a decision to grant consent is a poor decision, but there is very little that an aggrieved citizen can do about it, unless the courts can be convinced in an application for judicial review that it is not simply a poor decision but an invalid one. Judicial review proceedings are usually a last resort for objectors where legislation does not provide them with a right of merit appeal.

In judicially reviewing a 8ecision, the courts play a much more limited role than merit appeal bodies. Judicial review is not concerned with whether a decision is a good or bad one but rather:

• whether decision-makers had any power to make the decision in the first place • if they did, whether they followed the correct procedures in arriving at the decision.

In judicial review proceedings, the courts are supervising the decision-making process rather than trying to ensure that decisions are "good" decisions. They are not concerned with the merits of the proposal. So, for example, local councils can quit'e legitimately make "development-at-all-costs" decisions, provided that they comply with their legal obligations to at least consider environmental impact (see below) . As Justice Moffitt put it in Parramatta City Council v Hale (1982) 47 LGRA 319, before an inference can be drawn that a council has failed to take relevant factors into account: there must be displaced for example a view that the decision, even an unwise one, was come to on the basis that the merits of the development and the burden which would be

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placed on the developer if required to m1t1gate the harm to the environment were considered to outweigh protecting the environment, after the relevant matters had been taken into consideration.

Case studies: A legitimate expectation? [2.390] In Country Energy v Williams (2005) 63 NSWLR 699; [2005] NSWCA 318, the NSW Court of Appeal pointed out that there were two separate issues: was consultation required, and if so, what level of consultation? In that case, Mr Williams argued that the Director-General of the Department of Environment and Conservation failed to afford him, as an interested Aboriginal person, procedural fairness in consenting under the National Parks and Wildlife Act 1974 to the destruction of Aboriginal objects in the course of the construction of an electricity transmission line. Prior to the grant of consent, Country Energy had engaged a consultant to carry out a survey to identify relevant Aboriginal objects which might be affected by the proposed development. The issue was whether Mr Williams had a right to participate in the survey. The Court of Appeal doubted whether the facts gave rise to a legitimate expectation by Mr Williams that he would be consulted in this way:

If an application for judicial review is successful, the decision challenged is simply declared invalid. The reviewing court does not substitute a decision on the merits favourable to the applicant. Where the court decides that the body making the decision had no power to make that decision, then that is the end of the matter. If, on the other hand, it concludes that the decision-maker had the power but did not exercise it in a procedurally correct fashion, the decision-maker still has the opportunity of deciding the matter again - this time following the correct procedures. The eventual decision on the merits may be the same, with the decision-making process merely being adjusted to take account of the court' s conclusions. There is nothing unlawful about this (see the discussion of Parramatta City Council v Hale (1982) 47 LGRA 319 at [2.430]). In practice, however, the decision-maker might find it politically extremely difficult to come to the same conclusion. In the field of environmental law, moreover, one reason for requesting judicial review is sometimes the tactical one of causing delay. For a developer, a delay of a few months can often mean the difference between a profitable and an unprofitable venture.

• •

Grounds for judicial review

•

The Policy was not publicly available.

There was no clear evidence that Mr Williams had a traditional connection or historical association with the proposed transmission line corridor.

Even if it had been found, however, that Mr Williams had a legitimate expectation that he would be involved in an inspection of the whole corridor prior to the giving of any consent to destroy Aboriginal objects, it did not follow that the consent to destroy would be invalid unless that expectation was met. He did not have a right, merely an expectation, and this had been satisfied by giving him an opportunity to make his case for participating in the survey even though his request was ultimately turned down.

Where there was no opportunity to be heard [2.380] One argument might be that the decision-maker has failed to comply with rules of procedural fairness, legitimate expectation or natural justice by not giving someone an opportunity to present their case. The first issue is whether some form of consultation is required. Consultation may be expressly required by legislation. Alternatively, the courts might find that an opportunity for consultation can be implied from the legislative context. In the High Court case of Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57, Chief Justice Mason, and Justices Dean and McHugh, stated: ·

Another possibility is that the decision-maker might have adopted a public statement or practice of consulting stakeholders, building up their expectations.

While the National Parks and Wildlife Service Cultural Heritage Community Consultation Policy on which he relied pointed to the need to consult with relevant and interested Aboriginal people in the identification of their heritage, it did not commit to involving them at the level of detailed survey work.

• There was no evidence of practice in relation to the Policy.

[2.370] On what grounds will a court be prepared to declare a decision invalid? A comprehensive survey is not possible here, but some of the most relevant grounds of intervention in an environmental context are discussed below.

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person's rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment. (p 167)

chapter 2 Building blocks of environmental law

[2.400]

See also Vammeld Pty Ltd v Fairfield City Council [1999] 46 NSWLR 78; Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213.

Where the decision-maker exceeds or misuses their powers [2.400] Another basis on which the courts will intervene is that the decision making body has exceeded its powers, misunderstood them or, more likely, exercised them improperly. It might, for example, be alleged that the decision maker has abused its discretionary powers in some way, such as by:

•

creating an apprehension by a fair-minded lay observer that they might not bring an impartial mind to decision making (apprehended bias), for example, by prejudging an issue so as not to be open to persuasion (McGovern v Ku-ring-gai Council [2008] NSWCA 209;

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[2.410]

Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140; CPT Manager Ltd v Broken Hill City Council [2010] NSWLEC 69)

• acting without evidence or simply complying with somebody else's instructions, instead of reaching a decision independently • basing a decision on a predetermined policy rather than examining the facts of the particular case (Corkill v Hope (1991) 74 LGRA 33) • considering irrelevant factors (Gwandalan Summerland Point Action Group Inc v Minister for Planning (2009) 75 NSWLR 269; [2009] NSWLEC 140) • failing to consider relevant factors (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40.

Allegations such as these, particularly the last, are likely to form the basis of challenges by objectors to decisions made by environmental decision-makers in situations where there is no right of third party merit appeal for those objecting to a development.

Relevant considerations [2.41 OJ The factors that a decision-maker must consider before reaching a decision are frequently spelt out clearly in legislation, for example, section 79C of the EPA Act (see [2.330]). This requires the decision-maker to take into account not only the likely environmental impact of a proposal but also social and economic impacts in the locality. In addition, it must consider the public interest, and it has been held by the courts that this includes the principles of ecologically sustainable development (ESD). This requires "the effective integration of economic and environmental considerations in decision-making processes" (see [1.190]-[1.230]).

However, there is nothing to prevent legislation defining the relevant factors that the decision-maker must consider more narrowly. For example, Commonwealth legislation, the World Heritage Properties Conservation Act 1983, which has since been repealed, provided that:

In determining whether or not to give a consent .. ., the Minister shall have regard only to the protection, conservation and presentation ... of the property. (s 13(1)) See Friends of Hinchinbrook Society Inc v Minister for Environment (1997) 77 FCR 153. This would have prevented the Minister from taking economic factors into account. Compare this with the provisions of the Heritage Act 1977 (NSW), which make it clear that the Heritage Council, in deciding whether or not to recommend listing of an item on the State Heritage Register, must consider whether the listing would render it incapable of reasonable or economic use, and whether it would cause undue financial hardship to the owner (s 33(4)). Where legislation is silent on the question of what factors must be considered, they must be deduced from the subject-matter, scope and purpose of the legislation.

Case study: Key principles of administrative law [2.420] In Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc

(2014) 86 NSWLR 527; (2014] NSWCA 105, the NSW Court of Appeal had to consider key principles of administrative law, including the issues of relevant considerations and discretion. The Court's deliberation on the weight to be given a

[2.420]

chapter 2 Building blocks of environmental law

mandatory or relevant or consideration in an administrative decision was couched in terms of whether it was a "focal point" or "fundamental element" to the decision (R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322 followed, where Mason J introduced into the field of relevant considerations the notion of something being a "fundamental" or "focal" consideration). The matter involved an appeal against the decision of the Chief Judge of the Land and Environment Court upholding a third party merit appeal against the approval given by the Minister for Planning under the former Part 3A of the EPA Act to an extension of the existing Warkworth open cut coal mine in the Hunter Valley. The Director-General's environmental assessment report had to be considered in determining whether to approve a Part 3A project application. The report was one of three mandatory considerations (EPA Act, s 75J(2)(a)), but the only one relevant to this project. Warkworth contended that the Minister, through his delegate the Planning Assessment Commission, gave the requisite weight to the report, but that his Honour failed to do so. There was no question that the Director-General's report had to be considered (s 75J(2)(e) required that). However, Warkworth and the Minister contended thats 7 5J(2)(a) required that weight be given to the report- and its recommendation for approval of the mine - as a fundamental element or focal point in the decision making process: see Zhang v Canterbury City Council (2001) 51 NSWLR 589. The Court found that it was apparent from his Honour's reasons that he engaged in "an active intellectual process" when considering the material presented to him, including the Director-General's report: Tickner v Chapman (1995) 57 FCR 451 at 462. However, his Honour was not required to make this report a fundamental element or focal point of his determination, with the Court stating (at [230]): We do not agree that the legislation operates in the way contended by Warkworth and the Minister. In the first place, there is no statutory requirement that the report contain a recommendation as to approval, even though in the way that the executive arm of government operates that would be expected. More importantly, however, there is much more in the Director-General's report for a given proposal than the Director-General's recommendation. There will be a vast body of material including technical and expert reports, sometimes presenting contrasting views and submissions from opponents and supporters of the proposal. That material must be considered by the Minister as required by the legislation. The Minister is not bound to implement the Department's recommendation. The decisionmaker still retains ultimate discretion: see Walkerville v Adelaide Clinic Holdings (1985) 38 SASR 161. The Director-General's report must be considered, but to say that the Department's view must be given prima facie weight by the Minister would serve to place a constraint on the Minister's decision-making task beyond what is required by the legislation and constitute an unauthorised interference with Ministerial responsibility. A further challenge to his Honour's reasoning related to the manner in which he dealt with impact on biodiversity and endangered ecological communities and his resultant approach to proposed environmental offsets. Again, it was argued that his

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Honour failed to have regard to the Director-General' s report (which found these impacts acceptable) as a fundamental element or focal point in the decision-making process. This was also rejected by the Court as being the correct approach, and indeed in utilising his discretion his Honour had expressly and extensively dealt with biodiversity conservation in his reasons (at [262)). Notably, it is in the context of biodiversity conservation that the notion of "fundamental consideration" does operate, as the principle of the conservation of biological diversity and ecological integrity is a "fundamental consideration" under the definition of ecologically sustainable development (Protection of the Environment Administration Act 1991, s 6(2)(c); see paragraph [2.470] below).

Case study: The Parramatta Park case (2.430] The Parramatta Park case (Parramatta City Council v Hale (1982) 47 LGRA 319) involved the argument that a decision-maker had failed to take into account relevant considerations. The Friends of Parramatta Park and the NSW branch of the National Trust applied for a declaration that a development consent given by Parramatta Council was invalid, and for an order that the Council and the developers be restrained from commencing the proposed development (a sports stadium on Cumberland Oval in Parramatta Park). The application was made to the Land and Environment Court acting not as a merit appeal body but in its judicial review jurisdiction. This was because the EPA Act gave the objectors no third-party appeal rights (the development was not classified as "designated development": see [5.330]). In the first instance, Justice McClelland held that the development consent was invalid on three different grounds. The Council had misconstrued its powers and as a result had failed to deal with the question of whether the stadium should be approved. This was because it had wrongly come to the conclusion that legislation passed by the State Government (the Cumberland Oval Act 1981) had already decided the question of whether the stadium should be built and all that was left to be done by the Council was to impose conditions mitigating the impact of the development.

•

• The Council had not given the consideration required by the legislation in •

question to particular factors, specifically those dealing with parking, traffic and access arrangements. The decision reached was not simply a bad decision but was "so unreasonable that no reasonable body, properly understanding its duties, could have reached such a decision" ("manifest unreasonableness": see below).

The Council appealed from this decision to the Court of Appeal. The appeal was dismissed, with two members of the court agreeing with Justice McClelland's decision on the second ground, and one disagreeing. The Chief Justice, in the majority, emphasised that, in deciding whether relevant considerations had been taken into account, the Council's collective state of mind was at issue. He concluded

(2.430]

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that although the questions of parking, traffic and access had, technically speaking, been dealt with in the Council's decision, they had not been given due consideration. They had, in one sense, been dealt with in conditions attached to the consent. But these conditions were much less demanding than those originally recommended by the chief town planner in a report placed before the Council meeting at which the decision had been made. Some of the conditions were, in fact, little more than "pious hopes", in contrast with the detailed requirements relating to parking, access and traffic movement the chief town planner recommended. The Council could not, therefore, claim that it was relying on the research of its officers as a basis for its final decision. These officers had not been given any opportunity to reconsider the matter in light of the proposed amendments to their recommendations. It was not simply this failure that led the Chief Justice to conclude that the relevant factors had not been given due consideration by the Council. It was also the way in which one group of councillors had pushed through the vastly amended set of conditions at the meeting, without giving other councillors an adequate opportunity to understand or evaluate them. There was, for example, no chance to examine the proposed amendments before the meeting, and even at the meeting they were not presented in writing.

Justice Moffitt, coming to the same conclusion, emphasised that in exercising its judicial review function the Court was not concerned with whether the decision reached was or was not a wise one. The Council might quite legitimately have decided that the desirability of the development and the unfairness of the burden on the developer outweighed the need to protect the environment - as long as the correct procedures were followed. After a detailed examination of what had happened, he concluded that this was not the case. Rather, the evidence supported an inference that the Council had not considered relevant matters before reaching its decision. There was the course of events at the meeting and the total inadequacy of the conditions, despite the fact that the development was likely to have significant impact on the environment. But Justice Moffitt seemed to place special emphasis on the inadequacy of the information before the Council when it reached its decision. It had rejected the advice of its officers, and they had not been given any opportunity even to comment on the changes made in the final decision. Moreover, although the Council' s attention had been drawn to the responses of a number of government departments and public authorities to an environmental impact statement prepared by the developer for the Minister for Lands, it had not even bothered to obtain these responses. The result was that the only relevant information before the Council was that presented by the developer. Compare Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23 at [61]-[81] where the Court of Appeal decided that consideration had been given to relevant matters despite the limited time available.

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[2.440)

Depth of consideration required [2.440] Where the allegation is that, in reaching its decision, the decision-maker has failed to consider factors that it was required by legislation to consider, a crucial issue is the extent to which ·the courts will scrutinize the depth of consideration given to these factors. On one view, it is sufficient if there is some consideration given, regardless of whether it is in any sense adequate. But the danger here is that decision-makers will be misled into thinking that all they have to do is simply pay lip-service to the factors, which is clearly wrong (Anderson v Director General of the Department of Environment and Climate Change [2008) NSWCA 337 at [58)). An alternative approach argues that the job of the courts is to ensure that the decisionamaker gives "proper, genuine and realistic consideration" to the merits of the case (Kahn v Minister for Immigration, Local Government and Ethnic Affairs (1987) 14 ALD 291). It has been applied in a number of decisions of the Land and Environment Court (for example, Centro Properties Ltd v Hurstville CC [2004] NSWLEC 401 at [35)-[37]; Anderson v Minister for Infrastructure Planning & Natural Resources [2006] NSWLEC 337 at [52); Noble v Cowra Shire Council [2003) NSWLEC 178 at [122), [135)). In Weal v Bathurst [2000] NSWCA 88, the "proper, genuine and realistic consideration" test was specifically adopted by a majority of the NSW Court of Appeal ([2000) NSWCA 88 at [9]-[10)). Justice Giles held that: there had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation sufficient to warrant the description of the matters being taken into consideration. (at [80)). However' in Kindimini Investments v Lane Cove CC [2006] NSWCA 23 at [74)-[79] and . Anderson v Director General of the Department of Environment and Climate Change [2006] NSWCA 337 at [57), the NSW Court cif Appeal emphasised the dangers of such an approach and the need to avoid slipping into review on the merits.

Manifest unreasonableness [2.450] One of the grounds relied on by Justice McClelland in the Parramatta Park case was not used by the Court of Appeal to justify its decision. This was the argument that the Council's decision was so unreasonable that no reasonable body could have reached it. This is a recognised basis for judi~ial review of decisions by councils and p~blic authorities, frequently referred to as "Wednesbury unreasonableness" after the UK decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223. It is an exception to the general position that the courts will not become involved in the merits of decisions where they are exercising their . judicial review function, but it is a very narrow one. In the leading Australian case of Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Justice Mason framed the issue in the following way: ... it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power ... I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable" (at 41).

[2.470)

chapter 2 Building blocks of environmental law

The courts are extremely reluctant to conclude that a decision is "manifestly unreasonable". They are concerned that they will be accused of making decisions on the merits of the case without having the full facts before them, as distinct from simply supervising the decision-making process. In Murrumbidgee Ground Water Preservation Association Inc v Minister for Natural Resources [2005) NSWCA 10; [2005) NSWCA 10 at [129), the NSW Court of Appeal said that a decision would only be manifestly unreasonable if it was "illogical, irrational or lacking a basis in findings or inferences of facts supported on logical grounds" (see also, Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010) NSWCA 145). This deference to the decision-maker's determination on the weight that should be given to particular factors means that the values of particular decision-makers are decisive.

Case study: A manifestly unreasonable decision (2.460] An example of the sort of situation in which the courts will be prepared to intervene occurred in Ba/main Association Inc v Planning Administrator for Leichhardt Municipal Council (1991) 25 NSWLR 615. The Court of Appeal held that a direction by the Minister under the EPA Act, requiring the Council to complete the process of making a number of draft plans within five weeks, was manifestly unreasonable. This was based on the fact that the Council had to decide whether to hold a public hearing and, if it did, to advertise this for a period of three weeks, leaving it only eight days to hold the hearing, make public the report, consider it, and decide whether to make any amendments to the plans. (See also Minister for Primary Industries and Energy v Austral Fisheries PIL (1993) 30 ALD 783; Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning (2000) 107 LGERA 363; [2000) NSWLEC 20.)

Legislative prioritisation of matters to be considered [2.470] If legislation goes further than simply telling decision-makers to take certain factors into account and indicates the weight that should be given to them the decision-maker must give effect to this. For example, when it comes to making decisions under the Water Management Act 2000 (NSW), priority must be given to protecting water sources and their dependent ecosystems over the allocation of water for irrigation (ss 5(3), 9(1)). In making decisions on whether or not to grant licences relating to pollution, the Environment Protection Authority (EPA) is required to take its own objectives into account (Protection of the Environment Operations Act 1997 s 45(6)). These require the EPA to have regard to the need to maintain ecologically sustainable development. The conservation of biological diversity and ecological integrity is identified as a fundamental consideration when it comes to spelling out the principles and programs through which ecologically sustainable development can be achieved (Protection of the Environment Administration Act 1991, s 6(2): see [1.200)). There is an argument, therefore, that in making decisions about whether or not to grant a licence, and what conditions should be attached, greater weight must be given to biodiversity conservation than, for example, to economic considerations.

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[2.480]

Requiring the decision-maker to be satisfied of particular matters [2.480] Another legislative approach to restricting the decision-maker' s discretion is to impose a requirement that they must be satisfied that certain conditions are met before making a decision. State Environmental Planning Policy 19 - Bushland in Urban Areas (see [12.890]), for example, provides that before granting consent to the disturbance of native bushland in the areas covered, councils must:

• make an assessment of the need to protect and preserve the bushland, taking into account certain objectives spelt out in the Policy • be satisfied that the disturbance of the bushland is essential for a purpose in the public interest, and no reasonable alternative is available • be satisfied that the amount of bushland to be disturbed is as little as possible and, where

the disturbance is to allow construction work to be carried out, that the bushland will be reinstated as far as possible.

Obstacles to judicial review [2.490] The burden of proving that a council has invalidly exercised its decision-making

authority is on those alleging that this has occurred (GPT RE Ltd v Belmorgan Property Development Pty Ltd [2008] NSWCA256; Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127). Justice Moffitt, in the Parramatta Park case, emphasised the formidable problems of proof faced by those trying to prove a negative state of mind - that is, that relevant factors were not taken into consideration by a group of people as a whole. A conclusion that the council had not fulfilled its obligations could be reached only after "anxious consideration". Moreover, it was a matter of inference, taking into account a range of pieces of evidence that individually would not have been sufficient. Councils are not required to give reasons for their decisions to give development consent (CPT Manager Ltd (acting as trustee of the Broken Hill Trust) v Broken Hill City Council [2010] NSWLEC 69). Dealing with an application in an apparently cursory fashion does not necessarily mean that a decision-maker has failed to satisfy the obligation to give due consideration to relevant factors. A council is entitled to rely on its officers' inquiries and summaries of relevant information and their opinions and advice in reaching a determination (Parramatta City Council v Hale (1982) 47 LGRA 319; Warren v Electricity Commission of NSW (unreported, Land and Environment Court, 31 October 1990)). In addition, councils can quite legitimately delegate their power to make decisions to their officers. Documents contained on a council's files are generally presumed to be documents in the possession of the councillors (Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Notaras v Waverley Council [2007] NSWCA 333) and have been read by them (Bora! Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38). Councillors are also entitled to make use of their general knowledge, without making further detailed inquiries in the course of each case.

[2.510]

chapter 2 Building blocks of environmental law

The mere fact that there has been political caucusing does not mean that the decision-making process is flawed (Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 86). Apart from the financial cost of environmental litigation (see [2.900]-[2.960]) and any problems of standing to sue (see [2.800]-[2.890]), another difficulty faced by those considering whether to bring an action for judicial review is that remedies lie within the discretion of the courts (see [2.700]).

Case study: Reports [2.500] In Schroders Australia Property Management Ltd v Shoalhaven CC [2001] NSWCA 74, the Council relied on reports from independent consultants and legal advice to conclude that development was consistent with the objectives of the zoning of the land in question. While there was no evidence that each councillor had read these materials individually, the Court of Appeal held that an inference could be drawn that material in the possession of the Council was also in the possession of the individual councillors. Moreover, there was a presumption that the councillors had read this material and the burden of proof was on the objector to disprove this.

Compare Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38, where the Land and Environment Court held that there was evidence rebutting the presumption that councillors had read relevant material (a letter from the Council's solicitors indicating that only one councillor looked at the file prior to the council meeting). The Council had not responded by leading any evidence indicating that other councillors had read the relevant material.

Privative douses [2.510] Privative clauses are prov1s10ns in legislation that purport to limit or exclude the jurisdiction of the courts to review decisions under the principles discussed above. The Gene Technology (GM Crop Moratorium) Act 2003, for example, provides that an exemption order "cannot be challenged, reviewed or called into question in proceedings before any court or tribunal". The Sydney Harbour Tunnel (Private Joint Venture) Act 1987 (ss 8, 10) exempted tunnelling and ancillary works related to the construction of the Sydney Harbour Tunnel from the operation of Parts 3, 4 and 6 of the EPA Act (the latter Part dealing with enforcement). Further, section 17 on the imitation of appeals, mandated that no legal proceedings were available in relation to decisions, conditions imposed, or any alleged contravention of Part 5 of the EPA Act, with respect to tunnelling or ancillary works for the Sydney Harbour Tunnel. Section 19A of the Luna Park Site Act 1990 states that, within the restrictions set by that section, the emission of noise from the Luna Park site does not constitute a public or private nuisance, and that no criminal or civil proceedings or noise abatement action may be taken against any person with respect to the emission of noise from the site.

Under the EPA Act, where an environmental planning instrument is gazetted or public notice of a development consent is given (Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61), actions questioning the validity of the plan or consent must be brought within three months (ss 35, 101; see [3.610]; [5.2630]). Such provisions do not remove the right

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of judicial review entirely, but rather seek to impose a time limit on potential legal challenge for the sake of certainty of a statutory plan or consent. The courts have, however, held that privative clauses do have their limits. In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the NSW Court of Appeal held that compliance by councils with a precondition to be satisfied before they could require applicants for development consent to dedicate land free of charge was so significant as to amount to an "inviolable restraint". Consequently, it could be challenged outside the time limit set by section 101 of the EPA Act. It has also been held that privative clauses do not exclude a challenge based on a denial of procedural fairness (Lesnewski v Mosman Municipal Council [2005] NSWCA 99). For example, the Water Management Act 2000 purports to specifically exclude procedural fairness challenges in relation to water management plans (s 47(5), 47(6)). In addition, one view of the recent decision of the High Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1, is a general rule that the States cannot constitutionally enact privative clauses to exclude the jurisdiction of the State Supreme Court where the error in question undermines the jurisdiction of decision-makers (jurisdictional error) (at [99]-[100]). The High Court stated: To deprive a State Supreme Court of its supervisory jurisdiction enforcing the limits on the exercise of State executive and judicial power by persons and bodies other than that Court would be to create islands of power immune from supervision and restraint. (at [99]) See generally, [5 .2630]-[ 5 .2640].

Validating legislation [2.520] Even if it appears that there are firm grounds on which to base a request for judicial review, there may still be obstacles. Governments may intervene where they are determined to see that a particular project goes ahead. They may not be prepared to wait for the existing procedures to be followed in a re-run of the decision making process. So far as the law is concerned, there is nothing to prevent governments from introducing special legislation, enabling existing legal procedures to be bypassed in particular situations and earlier wrongdoing to be validated. The NSW Government has intervened with special legislation on a number of occasions in the past in relation to procedures for plan-making and project control under the EPA Act. The Blue Mountains Land Development (Special Provisions) Act 1985 and the Port Kembla Development (Special Provisions) Act 1997, for example, provided that even if certain environmental planning instruments and development consents made or granted under the EPA Act were invalid because the correct procedures had not been followed, they were to be treated as if they were valid. This had the effect of terminating judicial review proceedings that had already been commenced in the Land and Environment Court. The NSW Parliament passed the Filming Approval Act 2004 to overcome the decision of the Land and Environment Court in Blue Mountains Conservation Society Inc v Director-General of National Parks and Wildlife (2004) 133 LGERA 406; [2004] NSWLEC 196 restraining commercial film production in a wilderness area. The Act facilitated filming in dedicated areas

[2.530)

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under the National Parks and Wildlife Act 1974 and the Marine Parks Act 1997, for example by permitting filming even where prohibited under the EPAAct (s 5(1)). In 2008, amendments to the Threatened Species Conservation Act 199 5 (Schedule 7, Part 7) conferred biodiversity certification (see [12.1290]) on State Environmental Planning Policy (Sydney Region Growth Centres) 2006 by legislative fiat. This was in response to threatened legal proceedings that challenged the rationality of the Minister's conclusion that the planning policy could be certified because it in fact contained measures that would lead to "the overall improvement or maintenance of biodiversity values". Although it is quite clear that the NSW Government, acting through the legislature, is legally entitled to act as it did in these cases, some people would dispute its moral right to do so. Adopting this sort of approach leaves it open to accusations of riding roughshod over the environmental planning legislation.

Case studies: Validating legislation [2.530] In Parramatta City Council v Hale (1982) 47 LGRA 319 (discussed in [2.430]), we have seen that the Court of Appeal held that the development consent was invalid. It was then open to the developers to resubmit their application for consent, and open to the Council to reaffirm its original decision to give the go-ahead, this time making sure that it took into account all the matters it was required to consider. This, however, would have taken time. Besides, it would have been politically difficult for the Council to give approval without making more detailed provision for parking, access and traffic movement. There might even have been the threat of further legal proceedings if the substance of the decision had remained unchanged, however hard the Council tried to follow the guidelines laid down by the Court of Appeal. To deal with these circumstances, the NSW Government introduced special legislation in the form of the Cumberland Oval (Amendment) Act 1983 and the Cumberland Oval (Amendment) Act 1984. This made no attempt to interfere with the Court of Appeal's decision that the development consent already granted by the Council was invalid. What it did do for the future was to make the issue of development consent redundant by providing that the relevant parts of the EPA Act did not apply to development carried out under the Cumberland Oval Act 1981 or leases granted under that Act. On top of this, once a lease had been granted under the Act, environmental planning instruments no longer applied to the land while it was in force. More recently, the Clyde Waste Transfer Terminal (Special Provisions) Act 2003 overturned the decision of the NSW Land and · Environment Court in Drake v Minister for Planning [2003] NSWLEC 270. Justice Bignold had held that, in giving development consent under the EPA Act for a development that involved the compacting of putrescible waste, the Minister had proceeded on an incorrect basis as the activity proposed was not permissible with consent but prohibited under the terms of the applicable plan. In other words, the Minister had wrongly classified the activity and the development consent was invalid (see above, [2.310]). The Act dealt with this illegality by simply deeming development consent to have been granted.

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[2.580]

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Duty and discretion

New directions

(2.540] A public body may not simply have a discretion to exercise, but a duty to perform. As a rule of thumb, use of the word "may" in legislation introduces a discretion, while the word "shall" places the body under a duty. In the end, however, it is a question of interpretation of the particular piece of legislation. Where there is a duty to be performed, the public body has no choice in the matter. If it refuses, those with sufficient standing to sue (see [2.800]-[2.890]) may obtain from the courts an order requiring performance, or at least a declaration that the public body is under such a duty.

Advance approvals for breach of the criminal low

Decision-makers responsible for discretionary decisions still normally have a duty to reach some decision and a duty to take specified factors into account, as discussed above. Beyond this, however, the exact nature of the decision is a matter for their discretion.

The role of criminal law The stereotype (2.550] Criminal law is usually thought of as a series of general directions to all members of the community, telling them to not to behave in a particular way and pointing out the possible penalties to those who are tempted to do so. More than this, criminal law is perceived as being concerned with behaviour that poses a fundamental threat to the kind of society we live in - for example, laws forbidding physical and sexual violence and various kinds of interference with private property rights. Criminal law has a long history. It was originally developed by judges on a case-by-case basis, using the doctrine of precedent. In other words, its foundations lie in the common law. It is closely associated with the idea of blame, and for those who break the criminal law, punishment is seen to be an almost inevitable consequence. Even where there is an identifiable victim of the offence, the community feels so strongly about the behaviour in question that it is not prepared to leave decisions as to what to do about it in the hands of individual members of the community. The offence is perceived to be an offence against the community as a whole, and deserving of a response by the official representatives of the community. There is a general reluctance to condemn those who have caused damage not by acting, but by failing to act. Only in cases where death is caused by somebody failing to fulfil a duty of care to another person, such as the duty a parent owes to a child, is there any possibility of a murder or manslaughter conviction. There is a feeling that criminal law should determine the minimal level of behaviour necessary for a civilised society, rather than acting as a counsel of perfection. Criminal law provides defences. but their ambit is very restricted. Where there is bodily harm, even the consent of the victim does not constitute a defence. The harm caused to the community is seen as being more important than the issue of whether or not the supposed victim considers that they have suffered damage. Defences cannot ordinarily be arranged in advance; the law does not recognise a licence to kill.

(2.560] Where criminal law has expanded through legislation into.__ new fields of human behaviour, including the relationship between people and their environment, it has taken on a fundamentally different shape. There are still general criminal prohibitions, such as those contained in the NSW Protection of the Environment Operations Act 1997 stating that a person shall not pollute any waters or cause or permit any waters to be polluted (s 120). However, these are much more restricted than they appear because of the further provision that no offence is committed by those who cause pollution in accordance with the terms of a licence (s 122). In other words, advance approval to pollute can be obtained by applying to public bodies, such as the Environment Protection Authority or a local council, which make discretionary decisions (see [1.300]). The reality is that these bodies exercise their discretion to give approval in most cases, albeit approval subject to detailed conditions. The attitude is not one of outright condemnation with very limited exceptions where we are prepared to allow a defence. The community is at least ambivalent, and the benefits of industrialisation are weighed against the impact of pollution on the environment. Instances of water pollution that have no social utility are still roundly condemned, but in other cases the attitude is equivocal. The proviso is that any pollution must be regulated - in other words, it must take place under controlled conditions. The ambit of prohibited behaviour is in practice defined by those licence conditions, rather than by the general prohibition contained in the legislation. In this context, criminal law is often referred to in terms of regulation.

Obligations to act (2.570] Another noticeable feature of criminal law in the environmental context is the readiness to impose obligations on people not simply to refrain from acting, but to act positively in a certain way. This makes criminal offenders of those who omit to act as directed. In most cases, these obligations are not imposed on the public at large but on certain groups of people occupying special positions - those engaged in ongoing activities (industrial concerns, for example) that have a continuing effect on the environment. For example, the occupier of certain premises must, under the Protection of the Environment Operations Act 1997, maintain control equipment "in an efficient condition", and must operate that equipment "in a proper and efficient manner" (s 167), or be guilty of an offence. This provision imposes an obligation to act, but it is an obligation framed in imprecise terms, which the occupier must interpret and apply to their precise circumstances. Traditionally, one of the key principles underlying criminal law has been that members of the community should be aware of their obligations well in advance. In theory, at least criminal law has been traditionally concerned with giving messages to those wishing to conform to its demands, not simply with punishing those who are found, after the event, to have breached it.

Individualised obligations (2.580] One way of avoiding the imposition of vague obligations in environmental legislation is, as discussed above, to require those who are subject to its requirements to approach a specialised

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agency for approval of a proposed activity in advance - for example, to obtain a licence from the Environment Protection Authority. The licence spells out the detailed obligations of the licensee through the conditions attached, and these are backed up by the threat of criminal penalties for breach of condition. Another technique, which is again not found in more traditional areas of the criminal law, is to allow regulatory agencies to issue directions to a specific member of a group as distinct from the group as a whole (see [1.290]). Failure to abide by the detailed demands of the direction becomes a criminal offence. In essence, licences and directions are individualised criminal laws, as compared with general commands addressed to the whole community. Directions can require that certain steps be taken or that certain activities cease. The provision of detailed requirements in a direction is fairer to the individual or company concerned because it relieves them of the potential perils of vague, general requirements set out in legislation. Apart from providing a great deal more detail on what is required, the implementation of a direction can also be supervised by the body responsible for issuing it.

Finding fault [2.590] In another respect, regulatory criminal law in the environmental context seems to show much less regard for questions of fairness to the individual. Traditionally, criminal law has usually stopped short of convicting those who are only negligent - that is, people who ought to have known what was happening or the likely result of their actions, but did not know, and people who have failed to act reasonably when faced with risk even though they thought that their response was adequate. It is more difficult to attribute blame where people are not fully aware of what is going on or did their imperfect best. If the apparent wrongdoing was all a complete accident, traditional criminal law has been even more reluctant to convict and punish. To do so in these circumstances would be to punish regardless of whether the person knew what was happening. In legal terms, this is to make liability absolute. There is an argument, however, that where the criminal law is concerned simply with regulating activity, rather than condemning the morally culpable, we should be prepared to lower the level of fault that must be proved and be more willing to convict at least the negligent in some circumstances. In support of this, it is argued that, in the environmental context, for example, the criminal law is concerned not with general rules that apply to all members of the community, but with particular groups of people engaged in specialist activities calling for special precautions. Only by demanding a reasonable standard of care, and closing off all so-called loopholes, can we hope to ensure that those engaged in these activities will do their best to meet the law's requirements. There is also the argument that in these circumstances it is too great a burden on the prosecution to have to prove beyond a reasonable doubt that the defendant knew what was going on, or took risks being fully aware of ,the consequences, especially where the defendant is a company. This raises complicated legal questions (for example, which officer's knowledge represents that of the company), and complex factual questions stemming from the fact that in large organisations any individual may have only partial knowledge.

Interpreting legislation [2.600] In practice, when confronted with criminal offences in legislation, the question of what level of fault must be proved requires the courts to interpret the detailed provisions setting out the

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offence. In doing so, they will maintain the fiction that they are discovering the intention of Parliament rather than making the decision themselves.

In some cases, absolute liability and liability for negligence are excluded by the express terms of the legislation. So, an offence might be restricted to situations where the accused acted "knowingly" or "recklessly" (awareness of a risk). For example, under the Gene Technology (GM Crop Moratorium) Act 2003 (NSW) it is ordinarily an offence to cultivate a genetically modified food plant knowing that it is such a plant or being reckless as to whether it is (ss 6, 7; see [11.1090]-[11.1150]). Section 115 of the Protection of the Environment Operations Act 1997, on the other hand, makes it an offence not only to "wilfully" (intentionally) dispose of waste in a manner that harms the environment, but also to do so "negligently" (see [9.1150]-[9.1220]). Amendments in 2010 to the National Parks and Wildlife Act 1974 provide for two offences relating to harm to an Aboriginal object. These offences are distinguished by their fault requirements. The rriost serious, punishable with up to a year's imprisonment as well as a fine, is committed where the defendant knows that it is an Aboriginal object (s 86(1)). The other offence, which is only punishable by fine, is committed where the defendant came to the conclusion that it was not an Aboriginal object, but a reasonable person would have realised that it was (ss 86(2), 86(5)) (liability is "strict": see below). In many cases, however, legislation simply does not use words that clearly indicate the level of fault that must be proved. But the wording of the offence must be examined closely to see if there are any more subtle indications. The word "permit", for example, usually indicates that awareness on the part of the person doing the permitting must be proved.

Parliamentary silence on fault requirements [2.610] If the legislation is totally silent when it comes to spelling out fault requirements, the courts do not assume that absolute liability was intended (see generally He Kaw Teh v R (1985) 157 CLR 523 ). In fact, they start with exactly the opposite presumption: that the prosecution must prove that the accused was aware of the circumstances that went to make up the criminal offence. However, this can be rebutted. It is at this point that the courts look to the social purpose of the legislation, including whether the offence falls within an ill-defined notion of "real crime", conviction for which will result in social stigma. This is contrasted with "mere regulation", where liability for negligence and absolute liability sit more comfortably. The courts also consider whether opting for liability for negligence or even absolute liability will actually assist in making the legislation more effective. If we require each industrial unit to achieve what is reasonable within the industry as a whole rather than doing its own imperfect best, we may actually raise the overall standa~d. But this assumes that any particular unit is capable of achieving this standard, when it frequently depends on the financial resources available.

Strict liability [2.620] In practice, where the law is not specific, NSW courts generally opt for a form of liability for negligence known as strict liability. In technical terms, this means that the prosecution does not have to prove that the defendant knew all the facts making up the offence (for example, that the plant picked was listed as threatened) but the excuse of "reasonable mistake of fact" is available to the defendant. See; for example, Director-General of the Department of Land and Water Conservation v Greentree [2004] NSWLEC 584 (clearing native vegetation); Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715 (water

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pollution); Environment Protection Authority v Australian Iron and Steel Pty Ltd (No 2) (1992) 78 LGERA 373 (air pollution); Plath v Rawson [2009] NSWLEC 178 (picking a threatened plant species: see [12.610]); Director of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4 (clearing native vegetation) . To secure a conviction, the prosecution must show that any mistake of fact alleged by the defence was not one a reasonable person would have made. But before the defendant can rely on reasonable mistake of fact, it must have made a mistake: it must have at least considered the issue and reached a wrong conclusion.

Case study: Reasonable mistake [2.630] In State Rail Authority v Hunter District Water Board (1992) 65 A Crim R 101, an underground PVC pipe failed, and as a result, oil escaped and a creek was polluted. The State Rail Authority was prosecuted for polluting waters under what is now section 120 of the Protection of the Environment Operations Act 1997. The Rail Authority argued reasonable mistake of fact. The Authority's depot manager said that he understood that the relevant systems were working properly and that he had never observed any previous leakage, but he acknowledged that there was a risk of breakage from movement and settlement of the material in which the pipeline was located. It would have been possible to conduct a check using a water pressure test, but no such check had ever been made, even though there had been a major earthquake ten months before the incident. The Court of Appeal held that a mere assumption by the accused that everything was in order did not amount to a mistake. There had to be a positive belief that the operation of plant and equipment would not result in pollution. This belief also had to be reasonable.

Due diligence [2.640] Suppose an accused corporation argues that it correctly appreciated all the facts and that, in light of this, it took reasonable steps to avoid any incident, even though, as it turned out, it failed? Where the legislation is silent on these matters, does the "reasonable mistake of fact" excuse allow an accused to argue due (reasonable) diligence (ie that they were not negligent)? The answer given by the courts is in the negative. Australian Iron and Steel Pty Ltd v EPA [No 2] (1992) 79 LGERA 158 involved the offence of polluting waters under section 16 of the Clean Waters Act 1970. Justice Cripps of the Land and Environment Court held (and affirmed on appeal by the NSW Court of Criminal Appeal) that the prosecution only has to prove negligence (unreasonableness) in relation to issues of awareness (mistakes of fact). When it comes to issues about the adequacy of the response (diligence), liability is absolute. In taking this approach, the courts have lost sight of the policy considerations and, in particular, the question of effectiveness. The assumption underlying the decision is that it is inappropriate to convict someone who was quite reasonably unaware of all the facts that went to make up the criminal offence, but that it is quite appropriate to convict someone who took precautions that were quite reasonably regarded as adequate at the time to prevent commission of an offence, even though in practice they turned out not to be so. The problem is that, if we make someone in the second case absolutely liable, we do not appear to assist in preventing pollution. We are demanding perfection. No matter how hard you try, if you fail you must be convicted.

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In some cases, however, even though the prosecution do not have to prove that the accused failed to act with due diligence (ie, negligently), the legislation specifically provides for an offence of due diligence, which the defendant must prove on a balance of probabilities. For example, section 118 of the Protection of the Environment Operations Act 1997 provides that it is a defence to certain pollution offences if the defendant proves that the commission of the offence was due to causes over which they had no control and that they exercised due diligence to prevent the commission of the offence (see [9.1180]). Some legislation not only imposes liability for negligence, but also reverses the burden of proof, requiring the accused to show the absence of negligence, or "due diligence" (for example, Protection of the Environment Operations Act 1997, s 118).

Enforcement [2.650] The apparent harshness of laws imposing strict or absolute liability may be considerably modified in practice. Specialist enforcement agencies, such as the Environment Protection Authority, responsible for regulating those engaged in specialised activities generally perceived to be legitimate, may choose to prosecute offenders very selectively. They may argue that a much better response will be obtained in terms of compliance with licence conditions over the longer term by using the techniques of bargaining and persuasion rather than prosecution and punishment. The assumption is that those involved in these activities want to comply with these requirements but that this may take a period of adjustment due to financial and technological constraints. As a result, enforcement agencies have traditionally used criminal prosecution for environmental offences as a last resort, preceded by a process of inspection, advice, negotiation and warning. Where there are licensing arrangements, law enforcement has often become an aspect of licence supervision. This approach is justified by enforcement agencies on the grounds that it is the most effective way of ensuring regulatory compliance and improvement over the longer term. They are able to take this approach because they do not have a duty to prosecute, even when they are sure that an offence has been committed, and can prove it. The decision whether or not to prosecute is a discretionary decision (see [1.300]). A different point of view is that enforcement agencies are restrained when it comes to prosecution because they have been "captured" by those whom they are supposed to regulate that is, they have come to identify with these groups, seeing the situation from their perspective rather than that of the broader society they are supposed to represent. This is more likely in situations where responsibility for enforcing criminal law is not in the hands of the police, but in those of specialist agencies that are also concerned with the day-to-day regulation of particular activities.

Penalties [2.660] Prison sentences are rarely used where environmental offences are committed. Often, legislation does not allow them to be imposed. One significant exception is the tier one pollution offences under the Protection of the Environment Operations Act 1997 (see [9.1110]-[9.1190])

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which attract a maximum penalty of seven years' imprisonment (s 119). However, while in late 1997 an offence under these provisions resulted in a 12-month prison sentence, offenders are nearly always fined. A series of more innovative sentencing options are now contained in this legislation. These include ordering the offender to publicise the offence, to carry out a project enhancing the environment, or to audit its activities (Part 8.3, see particularly s 250; see [9.1900]). Offenders can also be ordered to pay an amount to an organisation for "a specified project for the restoration or enhancement of the environment or for general environmental purposes" (s 250(1)(e)). Similar sentencing options are available under the National Parks and Wildlife Act 1974 (s 205). Amendments in 2014 to the offences, penalties and enforcement provisions of the EPA Act now allow the Court, where it finds an offence proven, to impose the alternative sentencing options contained in Part 8.3 of the Protection of the Environment Operations Act 1997. These include orders to prevent, control, abate or mitigate harm to the environment; orders regarding the payment of monetary benefits gained as part of committing an offence; and a publication order where the offender is required to publish an advertisement in a newspaper reporting on the prosecution.

Case studies: innovative sentences (2.670] In Environment Protection Authority v State of New South Wales (Department of Environment, Climate Change and Water) [2010] NSWLEC 67, the National Parks and Wildlife Service pleaded guilty to breaching a condition of its licence to treat sewage at its Perisher Valley sewage treatment plant by failing to operate equipment in a proper and efficient manner. It was not fined, but ordered to pay $80,000 to the Southern Rivers Catchment Management Authority for riparian rehabilitation and exotic tree removal along a stretch of the Thredbo River. The Court specifically ordered that this amount was not to interfere with the operational funding that the Department was responsible for paying the Authority. In Plath v Fish and Orogen Pty Ltd [2010] NSWLEC 144 environmental consultants were convicted in the Land and Environment Court of causing damage to habitat of threatened species {the Koala), knowing that the land concerned was habitat of that kind (see [12.640]). They provided a developer with advice on what vegetation could be lawfully cleared on a property but failed to advise that damaging habitat of the Koala which they were aware existed on the property was unlawful. Apart from being fined a total of $15,000 and having to pay the prosecutor's costs, they were ordered to carry out parts of a Koala mapping project, and to publicise the offence in the Sydney Morning Herald and the Newsletter of the Ecological Consultants Association of NSW.

In Environment Protection Authority v Wattke and Geerdink [2010] NSWLEC 24, the general manager and a director of a company which transported and dumped 25,000 litres of waste, causing water pollution, were each sentenced to 460 hours of community service and a total fine of $60,000, as well as being ordered to pay $15,000 towards the costs of the investigation and the costs of the prosecution.

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In Environment Protection Authority v Tea Garden Farms Pty Ltd [2012] NSWLEC 89 the defendant was convicted of the offence against s 120(1) of the Protection of the Environment Operations Act 1997 of discharging sediment-laden water from a rural dam into the waters of a marine park. Pursuant to s 250{l)(e) of the Act, the defendant was required to pay:

(i)

$40,000 to Great Lakes Council to be applied to the Kore Kore Creek Bushland Reserve Project for stabilisation and remediation of tracks within the Kore Kore Creek Reserve; and

(ii)

$37,000 to the Marine Parks Authority for a project in the Port Stephens Great Lakes Marine Park involving the installation of "seagrass friendly moorings" in place of "dump and chain" swing moorings.

Fines [2.680] Companies can be fined up to $5 million for deliberate acts of pollution, and up to $2 million where they are negligent (Protection of the Environment Operations Act 1997, s 119). These are maximum penalties, however, and it is up to the courts in particular cases to give a penalty within this range. In practice the penalties handed down are considerably less than the maximum. Since 2003 the highest penalty imposed on a company under section 119 has been $250,000, with an additional $190,000 for prosecution costs and $50,500 for clean up expenses. Most of the fines for serious pollution offences have been under $100,000. Legislation frequently provides for maximum penalty units rather than monetary amounts. This allows fines to be raised over time without amending legislation. Currently, a penalty unit is valued at $110 under both NSW and Commonwealth legislation (Crimes (Sentencing Procedure) Act 1999 (NSW), s 17; Crimes Act 1914 (Cth), s 4AA).

Civil enforcement of criminal law [2.690] Increasingly, provisions are appearing in legislation that make it possible to enforce criminal laws through civil proceedings as an alternative to prosecution. The objective is not to punish the offender, but to obtain an order requiring that the offence cease and the situation be remedied. For example, it is a criminal offence under the Environmental Planning and Assessment Act 1979 to breach the provisions of a plan by carrying out development that is absolutely prohibited, or by failing to secure prior development consent where this is required (ss 122, 125, 126) . Maximum penalties for contraventions of the EPA Act have increased following 2014 amendments to the Act which commenced in 2015. Additional penalties have been introduced, now described as Tier 1, 2 and 3 offences (ss 125A, 125 Band 125C respectively). For example, increased penalties are now available for offences committed intentionally or those that cause harm or likely harm to the environment or death or serious injury to a person (Tier 1 offence, s 125A, with a penalty of up to $5 million in the case of a corporation, and up to $1 million in the case of an individual. The maximum penalty for offences against the Environmental Planning and Assessment Regulation 2000 (NSW) has been increased to $110,000 (s 125D).

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But as an alternative (ss 127(7), 127(8)), civil proceedings can be brought to remedy or restrain the breach (s 123). This provision gives very broad rights of standing (see below): "any person" can bring proceedings to remedy or restrain a breach of the Act. Most other NSW environmental legislation contains a similar provision. More generally, section 253 of the Protection of the Environment Operations Act 1997 gives any person a right to bring proceedings to restrain (but not to remedy) a breach, or a threatened breach of any NSW legislation, provided that it is causing or likely to cause harm to the environment. One of the attractions of civil enforcement is the lower standard of proof required. The prosecution must ordinarily prove guilt beyond reasonable doubt to secure a conviction for a criminal offence. The standard of proof in civil proceedings is the less demanding one of a balance of probabilities. Civil proceedings look to the future and seek to resolve the problem, rather than focusing on the past and the punishment of the offender, though the greater use of innovative sentencing regimes by the courts in recent years does point to a reliance on penalties that seek to achieve direct environmental benefits.

A discretionary remedy [2.700] The courts do, however, have a broad discretion to refuse a remedy in civil proceedings even where a breach has been proved. In Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, Justice Kirby offered general guidelines for the exercise of this broad discretion in the context of environmental planning law (Environmental Planning and Assessment Act 1979, s 124). He emphasised that the point at issue was the enforcement of a public duty, not a private right. In light of the broad rights of standing given to members of the public under the legislation, the function of the courts in exercising the discretion was to uphold "the integrated and co-ordinated nature of planning law" to ensure that justice was done and that private advantage was not gained by particular individuals:

the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under section 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under section 124. (pp 365-366) Nevertheless, Justice Kirby made it clear that the discretion to refuse a remedy would be exercised in appropriate circumstances, taking into account such factors as whether the breach was purely technical, whether it actually had a beneficial rather than an adverse effect, and any delay in bringing the action. He indicated that it may be more readily exercised where development has already occurred and would be expensive to remove, "than where what is involved is a continuing breach by conduct which could quite easily be modified to bring it into compliance with the law". He added that the discretion was broad enough to allow the court to soften the impact of rules by, for example, postponing the effect of an order, where otherwise they would produce an unjust result in the particular case. Finally, denial of a remedy would be less likely where enforcement proceedings were brought by the Attorney-General or a local council, because they were the proper guardians of public rights.

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A good example of the way in which this discretion is exercised in practice can be found in Fatsel Pty Ltd v ACR Trading Pty Ltd [No 3] (1987) 64 LGRA 177. The Court of Appeal held that it was relevant to take into account the following facts:

• that the defendant's activities (processing grease-trap wastes) contributed to the solution of an important environmental problem • that they were conducted in an environmentally satisfactory manner and had been carried on without problems for some time • that the facility concerned was one of only three in the Sydney region • that the only complaint was from a trade competitor who stood to gain a commercial advantage if an injunction was granted.

Civil penalties [2. 71 0] The significant Commonwealth environmental legislation, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (see Chapter 7), contains civil penalty provisions, which are not found in NSW legislation. For example, under the Commonwealth legislation, it is a criminal offence to take an action that has or is likely to have a significant impact on a species listed as threatened, without first obtaining approval. This is punishable by imprisonment for up to seven years and, for corporations, a fine of up to $378,000 (s 18A). But, apart from this, breach of this provision attracts a civil penalty, following civil proceedings, of up to 50,000 penalty units where a corporation is involved o(s 18). Currently a penalty unit equals $180 (Crimes Act 1914, s 4AA), equating to a penalty of up to $9 million. Once a person is convicted of a criminal offence, payment of a civil penalty cannot be ordered (s 486A). On the other hand, criminal proceedings can still be taken after a civil penalty has been ordered (s 486C).

Again, an important attraction ·of civil proceedings is the lower standard of proof. It also seems likely that the prosecution in criminal proceedings will have to prove a higher degree of fault on the part of the defendant.

Economic instruments [2.720] There has been a recent trend, both within Australia and internationally, to employ economic instruments, including market mechanisms, to address environmental issues. These instruments are proposed as an alternative way of influencing behaviour in some circumstances to "command and control" regulation, particularly criminal law. What economists mean by "command and control" is the focus of much of the law presented in this book: provisions, usually in legislation, that, under threat of penalty, prohibit particular forms of environmentally harmful behaviour, or, on occasions, require certain action designed to avert environmental harm to be carried out.

Economic instruments use price signals as incentives to change behaviour rather than commands. They include charges imposed by governments (often misleadingly referred to as "taxes") and tradeable permit systems. A tradeable permit is a right to emit a set level of pollutant or to use a set level of a resource, such as water, which can be bought and sold in the market place.

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Economic instruments are designed to remedy failures in the market place by making polluters pay for "externalities": environmentally harmful side-effects of their activities that impose costs on the broader community. Those responsible have traditionally not paid for these costs. In effect, the community has subsidised the activity by bearing the costs.

[9.1630]). The Carbon Pollution Reduction Scheme (CPRS) unsuccessfully proposed in 2010 by the Commonwealth Government in a package of proposed legislation that included the Carbon Pollution Reduction Scheme Bill, was an example of a tradeable permit scheme which placed a cap on Greenhouse gases in the environment.

We saw in Chapter 1 ([l.190]) that under NSW legislation, two strategies for achieving ecologically sustainable development are the application of the polluter pays principle ("those who generate pollution and waste should bear the cost of containment, avoidance or abatement") and that:

Tradeable or transferable development "rights" or "credits" schemes have been attempted in Australia, generally without much success. A notable exception is Sydney City Council's Heritage Floor Space Scheme (see: http://www.cityofsydney.nsw.gov.au/development/application-guide/ heritage-conservation/heritage-floor-space-scheme). In the context of water resource management, Chapter 15 outlines a tradeable permit scheme which allows not a right to pollute but a right to use a natural resource to be bought and sold.

environmental goals, having been established, should be pursued in the most cost effective way, by establishing incentive structures, including market mechanisms, that enable those best placed to maximise benefits or minimise costs to develop their own solutions and responses to environmental problems (Protection of the Environment Administration Act 1991 (NSW), s 6(2)(d)). Economic instruments are proposed as more "efficient" ways of changing behaviour. Because they are more flexible, they enable a particular target to be achieved at the least cost. For example, a uniform command and control air pollution emission standard designed to achieve a given level of environmental quality requires each and every polluter to meet that standard. But for some polluters this will be very expensive, whereas for others who have updated or are about to update technology, it will be much cheaper. If they are charged by government for the amount of pollutant emitted, or can buy and sell permits to pollute in the market-place, then different firms will choose different strategies based on the relative cost. Some will find it cheaper to pay the charge or purchase the permits. But those who are able to reduce environmental damage more cheaply than the cost of the charge or permit, by investing in pollution control technology for example, will do so. And if as a result they no longer need permits to pollute, they will be able to sell them to those who do. The use of economic instruments rather than command and control regulation therefore allows each polluter to choose what is for them the most cost effective strategy. A tradeable permit scheme can be combined with a "cap" on the overall level of pollutant in the environment (for example, a cap on Greenhouse gases). The amount of pollution allowed under permits to pollute is limited so that in total it meets this cap. Permits can be issued for defined periods, and over time the cap can be reduced. With a tradeable permit scheme, one of the most significant issues relates to how the initial permits are allocated. Polluters generally want existing permits to pollute, which have in the past been issued to them under command and control legislation, to be "grandfathered" (ie, simply left in place, without charge). But another argument is that they should be auctioned. With a pollution charge scheme, government sets the level of the charge. It should set it at a level that ensures that public costs are paid, and externalities are internalised by being paid by the polluter. But the problem is how to quantify these costs in terms of environmental harm. And there are political difficulties involved in adjusting the charge to take into account increased levels of production and resulting pollution. If a charge is fixed at a level that is too low, it becomes no more than a revenue raising exercise by government, not one designed to influence behaviour. In NSW we can find examples of economic instruments being used in the pollution control context. The NSW load-based licensing scheme relies on a pollution charge while the Hunter Valley Salinity Trading Scheme provides an example of a tradeable pollution permit scheme (see

More recently, economic instruments have even begun to emerge in the nature conservation context. The Biodiversity Banking ("Biobanking") scheme discussed in Chapter 12 ([12.1200]-[12.1280]) combines:

• a command and control requirement to offset damage to biodiversity caused by development, by replacing it on another site, with • a market which allows those managing land for biodiversity to sell biodiversity credits to developers who need them to offset the damage that they will cause.

The role of the courts The Land and Environment Court [2. 730] The Land and Environment Court of NSW is a superior court of specialist jurisdiction. It was established in 1979, and its powers are set out in the Land and Environment Court Act 1979.

The Court comprises both Judges and Commissioners (Pt 2, Divs 2 and 3 ). Commissioners are judicial officers who have expertise in one or more of a number of fields, including (s 12):

• planning • environmental science • environmental protection • land valuation • architecture • surveymg • building • natural resource management • land rights • urban design • heritage.

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The Court's jurisdictions [2.740) The Court has eight areas of jurisdiction (s 16(2)). In Part 3, Division 1 of the Act, these

are divided in the following way:

•

Class 1: environmental planning and protection (s 17). This allows for merit appeals (see [2.350]) under a number of pieces of legislation. In practice, most are appeals by applicants for approval from decisions by local councils involving land development (for example, appeals under s 97 of the Environment Planning and Assessment Act 1979 against conditions a council has imposed on a development consent, and appeals against the refusal of a development application or neglect or delay in giving a decision). Appeals by those seeking licences under the Protection of the Environment Operations Act 1997, and licences and approvals under the Water Management Act 2000 are also included. Rights of merit appeal by objectors (third party appeals) are few and far between (see [5.330]).

• Class 2: local government and miscellaneous appeals (s 18). Most frequently these cases •

involve merit appeals arising under the Local Government Act 1993 and applications under the Trees (Disputes Between Neighbours) Act 2006. Class 3: land tenure, valuation, rating and compensation (s 19). This includes:

- appeals against land valuations - claims for compensation where land has been compulsorily acquired by the state or a public authority - appeals in relation to the determination of property boundaries - Aboriginal land claims under land rights legislation (see [20.40]-[20.210]) .

• Class 4: judicial review of administrative decision-making (see [2.360]-[2.540]) and civil •

enforcement proceedings (see [2.690]) (s 20). This takes place under a range of environmental legislation, including legislation that gives broad rights of standing to sue (see [2.800]-[2.890]). Class 5: criminal prosecutions under a range of environmental legislation (s 21). The jurisdiction is summary, which means that the case is dealt with by a judge sitting without a jury, even though in recent years maximum penalties for some environmental crimes have become quite severe. In many situations, it is possible to bring civil enforcement proceedings in class 4, seeking an order to remedy or restrain environmentally harmful action, as an alternative to bringing criminal proceedings, where the outcome is usually a fine.

• Class 6: appeals by defendants from convictions by magistrates for environmental criminal offences in Local Courts, where prosecutions can also be brought (s 21A) . • Class 7: appeals from magistrates in relation to environmental criminal prosecutions that •

would previously have been heard by the Supreme Court (see Crimes (Local Courts Appeal and Review) Act 2001, ss 32, 43) (s 21B) . Class 8: a range of proceedings under mining and petroleum legislation (s 21C).

Hearings

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reviewing the decision of the primary decision-maker, the case is reheard, with any new evidence taken into account (s 39(3)). Hearings in classes 1, 2 and 3 must be conducted "expeditiously", and with as little formality and technicality as possible (s 38(1)). The Court is not bound by the rules of evidence (s 38(2)).

In all proceedings other than those involving criminal matters, representation can be through an agent, who need not be legally qualified (s 63: the Court's permission is required in relation to class 8 matters).

Conciliation [2.760) The Court can require parties in a pending class 1, 2 or 3 matter to take part in a conciliation conference with a Commissioner (s 34). If the parties reach an agreement, the Commissioner must deal with the matter in line with the agreement. Where agreement is not reached, the parties can agree to let the Commissioner deal with the matter, either with or without a hearing. Otherwise the Commissioner must provide to the Court and the parties a written report identifying the issues in dispute. But this, and anything said in the conciliation conference is not admissible in evidence in later proceedings unless the parties consent.

A special procedure was introduced in 2010 amendments to the Act to deal in particular with merit appeals involving detached single dwellings and dual occupancies, including alterations and additions (s 34AA). The Court must arrange a conciliation conference for these matters. If no agreement is reached, the Commissioner must terminate the conference and dispose of the case on the basis of what has occurred at the conference if the parties agree, or, if not, after holding an immediate hearing. The Commissioner does, however, have the discretion to decide at any stage that this procedure is inappropriate given the particular circumstances of the case.

Neutral evaluation [2.770) The Court can require matters in classes 1-4 and 8 to undergo neutral evaluation paid

for by the parties. The evaluator "seeks to identify and reduce the issues of fact and law in dispute, including by assessing the relative strengths and weaknesses of each party' s case and offering an opinion as to the likely outcome of the proceedings " (Land and Environment Court Rules 2007, r 6.2).

Appeals on questions of law [2.780) An appeal on a question of law may be made to a Judge of the Land and Environment Court against the decision of a Commissioner in classes 1, 2, 3, and 8 (s 56A). If the matter has been heard by a Judge, an appeal may be made on a question of law to the NSW Supreme Court (Land and Environment Court Act 1979, s 57).

An appeal from a decision of the Court under class 4 is made to the Court of Appeal (s 58). An appeal where a party is convicted or ordered to pay costs under class 5 is brought before the Court of Criminal Appeal (Criminal Appeal Act 1912, ss SAA, 5AB).

[2.750) Only judges can exercise the powers vested in the Court under classes 4, 5, 6 and 7 of its jurisdiction (s 33(2) ).

Access to the courts

Classes 1, 2 and 3 of the Court's jurisdiction can be exercised by a Judge or one or more Commissioners (s 33(1)). Commissioners frequently conduct proceedings. Rather than simply

[2.790) It does not necessarily follow that because individuals or public bodies are breaking the law, any public-spirited member of the community has the right to bring an action against them

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in court. If someone can show that they personally have suffered as a result of alleged wrongdoing -for example, if they base their case on private nuisance - they will have no problem in gaining a hearing before the courts. But the common law is much more guarded in giving access where the public interest is at stake. Increasingly, however, broad rights of "standing" to bring civil proceedings to enforce the law have been granted in environmental legislation.

Standing to sue in civil proceedings [2.800] Civil proceedings taken in the public interest can take one of two forms. In some cases, they are simply an alternative to prosecution for a criminal offence, the aim being to prevent the offence from being committed, or to remedy the situation, rather than to punish the offender (see [2.690]).

More usually, the objective is to supervise public bodies, such as local councils and government agencies, by bringing proceedings for judicial review of administrative action (see [2.360]-[2.540]). The aim may be to obtain an order restraining the public body concerned from behaving in an unlawful way; or an order requiring it to do its duty may be more appropriate. Even a simple declaration from a judge on the legal position in the particular circumstances may be sufficient, because generally public officials perform their duty when it is pointed out to them.

Special interest [2.810] In Australia, at common law, the basic position is that a public-spirited citizen or an environmental group or organisation, such as the National Trust or the Australian Conservation Foundation, has standing to sue for injunctions and declarations only if they have a special interest in the subject matter (Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53).

Holders of commercial interests certainly have a "special interest" under this rule. As a result, conservation groups may seek to gain standing by developing commercial interests in a threatened area, through conducting tours or selling articles relating to the area.

Case studies: Establishing special interest Commercial interest [2.820] In Yates Security Services Pty Ltd v Keating (1990) 77 LGRA 165, the plaintiff company brought an action challenging the validity of the Commonwealth Treasurer's revocation of an order under the Foreign Acquisitions and Takeovers Act 1975 (Cth) which prohibited an acquisition of land by a foreign company that proposed to redevelop the site. The argument was based on an alleged failure by the Treasurer to comply with environmental assessment provisions that applied to a listed building on the land (Paddy's Market). The plaintiff wished to redevelop the site itself, and it argued that it should be granted standing on the basis that success in the proceedings would confer a commercial benefit on it, namely the opportunity to negotiate for the acquisition and development of the site. This argument succeeded before Justice Wilcox, but was rejected by the Full Court of the Federal Court. Justices Marling and Pincus denied standing on the grounds that the plaintiff had

[2.850]

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failed to show that it had a feasible proposal to buy and develop the site and the financial means to carry it out. The proposal must be a practical possibility; there must be at least a reasonable likelihood of benefit. A mere opportunity to negotiate did not confer a commercial benefit. Justice Marling held that the plaintiff did not have a special interest because, like any other member of the public, it had the opportunity to negotiate for the purchase of the site and its development regardless of whether or not it won the case.

Cultural interest [2.830] Proof of a commercial interest is not the only basis on which a court will decide that there is a "special interest". In Onus v Alcoa (1981) 149 CLR 27, a group of Aboriginal people sought an injunction against a company that intended to build an aluminium smelter on land that their people had occupied since prehistoric times. They claimed that the development would interfere with Aboriginal relics on the land, and that this would be in breach of the provisions of the legislation. The High Court held that the plaintiffs had a special interest over and above the general public interest, because they would be particularly affected by damage to the relics. Therefore, they could proceed with their action. Not only did the relics have special cultural and spiritual significance for the plaintiffs, but they were also the custodians under Aboriginal law and custom and, in addition, they used them in teaching their children.

Case study: Intellectual and emotional concern [2.840] In Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53, the High Court denied standing to the Australian Conservation Foundation to seek declarations and injunctions in relation to a proposed resort development in Yepoon, Queensland. The ACF claimed that the Commonwealth Minister's decision to give the go ahead failed to comply with legislation designed to ensure that adequate consideration was given to the environmental aspects of the proposal. In denying standing, one judge stated that "a mere intellectual or emotional concern" was not sufficient. This means that the desire to protect and conserve the environment is not on its own sufficient to gain standing.

Judicial review in Commonwealth cases [2.850] Proceedings for judicial review of decisions made under Commonwealth legislation can be brought under the Administrative Decisions (Judicial Review) Act 1977 (Cth). Under section 5 (1) of this Act only "a person aggrieved" by a decision can bring an action. In Australian Conservation Foundation v Minister for Resources (1989) 76 LGRA 200, a judge at first instance distinguished the decision in Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 (see above). The judge held that the ACF was a "person aggrieved" and therefore had standing to bring an action. The ACF argued that the Minister did not comply with the provisions of what was then the Commonwealth heritage legislation before issuing a licence to export woodchips derived from the South-East forests. Justice Davies argued that the forests in question should be treated as part of the National Estate and that, therefore,

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the issue was not purely local, as the issue in Australian Conservation Foundation Inc v Commonwealth may have been. In deciding the question of standing, he stated that current community perceptions and values have to be considered: public perception of the need for conservation and the role of bodies such as the ACF had increased noticeably in the last ten years. The ACF was the major national conservation organisation, and received substantial government funding. The community expected it to put forward a conservation viewpoint to counter arguments for economic exploitation. Justice Davies concluded that, while the ACF did not have standing to challenge every decision affecting the environment, it had a special interest in the South-East forests, having produced an alternative strategy for their sustainable management that was subject to public debate and discussions with government and industry.

Case study: Who is a person aggrieved? The North Coast Environment Council

[2.860] In North Coast Environment Council Inc v Minister for Resources (1994) 36 ALD 533, the North Coast Environment Council had requested the Commonwealth Minister for Resources to provide a statement of reasons under section 13(4A) of the Administrative Decision (judicial Review) Act 1977. Justice Sackville held that the words "person aggrieved" should not be construed narrowly. In this case, it was enough for the applicant to demonstrate a special interest in the preservation of forests in its "defined area" of activities. Other factors that persuaded Justice Sackville to grant standing under the Act were:

• the North Coast Environment Council's status as a peak environmental organisation for the region in which the dispute was centred • activities by the Council that demonstrated a strong concern for the area • recognition by the Commonwealth Government of the Council as a significant and responsible environmental group • the Council's receipt of grants from the Commonwealth Government • State Government recognition of the Council by including it as a member on advisory committees • the undertaking or coordination by the Council of projects and conferences on environmental issues.

Justice Sackville held, however, that simply formulating objects that demonstrate an interest in and commitment to the preservation of the physical environment would not be sufficient to gain standing.

The Tasmanian Conservation Trust [2.870] In Tasmanian Conservation Trust v Minister for Resources (1995) 37 ALD 73 Justice Sackville applied the factors identified in North Coast Environment Council to conclude that the Trust was also a "person aggrieved" for the purposes of the Administrative Decision (judicial Review) Act 1977.

(2.880)

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Special provisions in legislation [2.880] The decision in ACF v Commonwealth [1980] HCA 53 is now of limited significance in NSW because many NSW statutes now include special provisions allowing anybody at all to bring proceedings to remedy or restrain breaches and threatened breaches of the piece of legislation in question (Corkill v Forestry Commission of NSW [No 2] (1991) 73 LGRA 126 at p 140; Sydney City Council v Building Owners' and Managers' Association of Australia Ltd (1985) 55 LGRA 444; compare Ba/main Association Inc v Planning Administrator for Leichhardt Municipal Council (1991) 25 NSWLR 615 at p 638). This includes:

• the Environmental Planning and Assessment Act 1979 (s 123) • the Heritage Act 1977 (s 153) • the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (s 10) • the National Parks and Wildlife Act 1974 (s 193) • the Wilderness Act 1987 (s 27) • the Threatened Species Conservation Act 1995 (s 147) • the Native Vegetation Act 2003 (s 41) • the Protection of the Environment Operations Act 1997 (s 252) • the Contaminated Land Management Act 1997 (s 96) • the Fisheries Management Act 1994 (s 282) • the Local Government Act 1993 (s 674) • the Water Management Act 2000 (s 336).

In addition, section 253 of the Protection of the Environment Operations Act 1997 allows anyone to bring an action to restrain (but not to remedy) a breach of any NSW Act if the breach is causing, or is likely to cause, harm to the environment. This is despite the fact that this Act is concerned primarily with pollution control. So, for example, this provision could be relied on to bring proceedings under the Mining Act 1992, the Plantations and Reafforestation Act 1999, the Pesticides Act 1999 or the Forestry Act 2012, which do not contain a provision allowing any person to bring proceedings. This provision is not quite as generous as those listed above: it must be shown that there is at least a threat of "harm to the environment". In practice, however, this does not present a major obstacle because "harm to the environment" is defined very broadly (see [9.1140]). It has been held, for example, that it includes harm caused indirectly by the granting of a pollution licence by the EPA in breach of the provisions of the legislation (Brown v EPA (unreported, Land and Environment Court, 12 November 1992)). These broad standing provisions do not apply to Commonwealth legislation, but provisions in specific pieces of Commonwealth legislation have also relaxed common law standing requirements. The Industrial Chemicals (Notification and Assessment) Act 1989, for example, allows any person to bring an action for an injunction (s 83). However, this only allows civil enforcement of criminal law (see [2.690]), not judicial review proceedings (see [2.360]). Under the Environment Protection and Biodiversity Conservation Act 1999, either the Minister or an "interested person" has standing to bring an action for an injunction to prevent a "contravention" of the Act. An "interested person" includes someone who has "engaged in a series of activities for protection or conservation of, or research into, the environment" during the past two years. It also includes organisations that have engaged in such activities in pursuance of their objects

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during this period (s 475). There is no requirement that the activities of the organisation relate to the particular environmental issue at stake in the proceedings.

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(2.910]

Case study: Costs Costs denied

Private prosecutions [2.890] The general position is that where a wrongdoer's behaviour amounts to a criminal offence, anybody can bring a private prosecution in the Local Court, unless there is a special provision in the legislation that restricts or abolishes this right (for example Protection of the Environment Operations Act 1997, s 217).

Where the offence is a serious one that can only be tried in a higher court, an ordinary citizen cannot ordinarily see the matter through to its conclusion. Under the Protection of the Environment Operations Act 1997, however, members of the public can bring a prosecution in the Land and Environment Court with the leave of that Court, in cases where the Environment Protection Authority has not itself responded (s 219; see [9.2070]). In practice, members of the community are unlikely to want to bring criminal proceedings because they must prove guilt beyond a reasonable doubt, and they do not have the legal powers to gather evidence possessed by government enforcement agencies. In addition, they are more likely to be interested in obtaining an order in civil proceedings to prevent and remedy environmental harm rather than the punishment of an offender.

Financial barriers to environmental litigation

[2.910] Minister for Planning v Walker (No 2) [2008] NSWCA 334, raised the issue of costs where the plaintiff had been unsuccessful in arguing that principles of ecologically sustainable development had to be taken into account by the Minister in approving a concept plan for a residential project on a flood constrained coastal plain under Part 3A of the Environmental Planning and Assessment Act 1979 prior to its repeal. In the application for costs, the Court of Appeal decided that the case involved public interest litigation (at [8]):

[T]here is clearly a public interest in the principles of ecologically sustainable development (ESD) and in climate change flood risk in relation to properties near the coast. In my opinion, it is clear that this interest is not confined to a small number of people in the immediate vicinity of the development in this case. I would infer that the prime motivation of this litigation was to uphold the rule of law in relation to that matter of public interest. The Court also found additional factors present which justified the decision not to award costs against the unsuccessful plaintiff. The proceedings raised a novel point of law, and the plaintiff was successful in the Land and Environment Court. Even a majority of the Court of Appeal thought that the Minister's failure to take into account ESD considerations was contrary to good practice, although it did not invalidate his decision. Costs awarded

Costs [2.900] In addition to the difficulties of gaining standing to bring an action, there are potential financial barriers. Engaging in litigation can be an expensive process. Unless a litigant is legally aided under NSW legislation and has been granted an indemnity against costs (see [2.970]), they will not only have to pay their own legal fees if they are unsuccessful, but they may also have to pay the costs incurred by the party being sued.

The normal rule is that courts should ordinarily award costs against the unsuccessful party (Uniform Civil Procedure Rules 2005, r 42.1). The courts will, however, take into account the fact that proceedings have been brought in the public interest in deciding whether or not to apply the normal rule (Oshlack v Richmond River Council [1998] HCA 11; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39). But, the mere fact that there is a public interest involved in the litigation or that the community organisation bringing the proceedings has the public interest as its object and stands to make no financial gain, does not mean that costs will not be awarded against it (Save The Ridge Inc v Commonwealth [2006] FCAFC 51; Lawyers for Forests v Minister for the Environment, Heritage and the Arts (No 2) [2009] FCA 466). In Minister for Planning v Walker (No 2) [2008] NSWCA 334, the Court of Appeal held that to displace the normal rule, more is needed than that the proceedings were brought in the public interest.

The substantive issue in Hastings Point Progress Association Inc v Tweed Shire Council (No 3) [2010] NSWCA 39 was whether the applicable planning rules permitted the local council to approve a development greater than two storeys in height. The Court of Appeal held that costs should be awarded against the Progress Association which unsuccessfully challenged the approval. Basten JA, with whom McColl JA agreed, found three factors favouring this conclusion: the defendant was a commercial enterprise, and not the State or a governmental authority; the question of public interest was a relatively discrete point of interpretation, not one having broad ramifications for the community at large or for protection of the natural environment; and the private interests of members of the Progress Association were involved insofar as the development might affect the amenity of the area in which they lived (at [11]). In Caroona Coal Action Group Inc v Coal Mines Australia Pty Ltd and Minister for Natural Resources (No 3) [2010] NSWLEC 59 the Chief Judge of the Land and Environment Court emphasised the nebulous nature of the concept of public interest, pointing out that there is a public interest in social and economic development as well as environmental protection. In light of this, he drew specific attention to the need to protect the particular public interest in ensuring access to justice to those seeking to enforce environmental law. On the facts in that case, he applied the normal costs rule and awarded costs. One of the factors he emphasised was that those challenging the validity of a mining exploration licence for mining

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[2.960]

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Providing security for costs activity had, as the owners of highly productive agricultural land, the financial incentive and means to fund the litigation. Another consideration was that the licence involved was only for exploration, not mining, and it involved minimal damage to the environment. Compare Gray v Macquarie Generation (No 2) [2010] NSWLEC 82 where Paine J applied the principles in the Caroona decision and ordered that each party pay its own costs after dismissing the argument that the environment protection licence issued by the Environment Protection Authority to the power station did not authorise the emission of carbon dioxide, while allowing a related argument to proceed. The fact that an unsuccessful party is unable to meet a costs order is not a reason for not making the order (Kennedy v NSW Minister for Planning [2010] NSWLEC 269).

Capping costs [2.920] Under rule 42.4 of the Uniform Civil Procedure Rules 2005, a court has the power to specify the maximum costs which can be recovered. In Delta Electricity v Blue Mountains Conservation Society Inc [2010] NSWCA 263, the Society alleged that Delta had polluted waters in contravention of the pollution legislation. A majority of the Court of Appeal upheld a decision by Paine J early in proceedings before the Land and Environment Court to cap costs at $20,000 in spite of claims by Delta Electricity that its likely costs would be over $230,000. In this context, in addition to the public interest, the Court of Appeal took into account that unlimited costs orders would seriously undermine the use of broad standing provisions in legislation to prevent breaches of environmental protection laws (see [2.880]).

Land and Environment Court Class 4 [2.930] The Land and Environment Court Rules 2007 specifically provide that the Land and Environment Court has the discretion not to make a costs order against an unsuccessful litigant in judicial review and civil enforcement proceedings (Class 4) "if it is satisfied that the proceedings have been brought in the public interest" (r 4.2(1)). Pursuant to this, the Court has held that although ordinarily there must be an additional factor beyond the public interest before costs against an unsuccessful litigant are waived (for example, the legal issue is a novel one of general significance), in some situations the public interest might be so considerable that this in itself will suffice (Anderson on behalf of the Numbahjing Clan within the Bundjalung Nation v NSW Minister for Planning (No 2) (2008) 163 LGERA 132 at [9]-[11]). An example of this, given in the Anderson decision, was an "unsuccessful proceeding, based on a good arguable case, brought to stop or limit the development of one of the last habitats of an endangered species".

Land and Environment Court Class 1 and Class 2 [2.940] When the Land and Environment Court is hearing merit appeals (Classes 1 and 2 and some Class 3 proceedings), the general rule is that each party bears .its own costs (Land and Environment Court Rules 2007, r 3.7).

[2.950] A related issue is whether public interest litigants should be required at the outset to provide security to make sure that they are in a position to meet any costs of the other party that they are eventually required to pay. The Land and Environment Court again has the discretion not to make an order for the security of costs against an unsuccessful litigant "if it is satisfied that the proceedings have been brought in the public interest" (Land and Environment Court Rules 2007, r 4.2(2)). In Melville v Craig Nowlan & Associates Pty Ltd [2002] NSWCA 32, an action was brought under section 123 of the Environmental Planning and Assessment Act 1979 seeking to have a development consent declared invalid. A majority in the Court of Appeal made it clear that there was no rule preventing an order for security of costs being made against an individual who had no money. The Land and Environment Court had a broad discretion. On the facts, the Court of Appeal held that, although the plaintiff had an arguable and bona fide case, an order for security for costs should be made because:

• • • • •

she had little money others were in a position to bring proceedings under the broad standing provisions in the NSW legislation if she withdrew the sum of money required as security was relatively low failure to require security could materially damage the applicant for development consent the application for security for costs was made promptly

• the application was not oppressive.

See also KP Cable Investments Pty Limited v Meltglow Pty Ltd (1995) 56 FCR 189 at 197-198; Burrell Place Community Action Group Inc v Griffith City Council [2009] NSWLEC 120. There are, however, public interest cases in the Land and Environment Court where judges have exercised their discretion in favour of not making orders for security for costs, including cases where the claimant was indigenous. See Carriage v Stockland Development Pty Limited [2004] NSWLEC 321 (where an impecunious Aboriginal person had a special relationship to the land in question); Carriage v Stockland (Constructors) Pty Ltd [No 5] [2003] NSWLEC 197; Williams v Pardoe [2003] NSWLEC 363; Hunter Ecologically Sustainable Employment Group Inc v HEZ Pty Ltd [2003] NSWLEC 357 (where there was a voluntary association with limited funds); and Belmore Residents Action Group Inc. v Canterbury City Council [2005] NSWLEC 258.

Undertakings to pay damages [2.960] An applicant for a court order may want to apply for an immediate order (an interlocutory injunction) to preserve the status quo from imminent action (for example, native vegetation clearance) until the issue of legality is determined by a court. In these circumstances, the court has a discretion as to whether it provides immediate relief. The exercise of this discretion is discussed in detail by the Chief Judge of the Land and Environment Court in Tegra (NSW) Pty Ltd v Gundagai Shire Council [2007] NSWLEC 806. One consideration is whether the applicant is prepared to give an undertaking as to damages, that is, to agree to compensate for any damage caused to the other party if the application is unsuccessful. However, failure to give

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an undertaking as to damages in environmental litigation where open standing provisions are relied on (see [2. 790]-[2.890]) is not determinative: it is simply one issue to be considered.

Legal aid Legal aid in State matters [2.970] Legal Aid NSW is responsible for the provision and administration of legal aid and other legal services in NSW. Where the activity or proposal raised a matter of "substantial public concern" about the environment, legal aid was available for public interest environmental law matters in the Land and Environment Court in class 1 (merits appeal), where the hearing was before a judge, and class 4 (judicial review) matters, as well as appeals from the Court. However, as of 1 July 2013 legal aid is no longer available for public interest environment matters.

Legal aid in Commonwealth matters [2.980] Legal aid is also not available under Legal Aid NSW policies for public interest environment matters which are covered by Commonwealth legislation or come within the Commonwealth jurisdiction. Legal assistance for Commonwealth public interest environment matters may be obtained under the Federal Government's Public Interest and Test Cases Scheme. Under the Commonwealth scheme there is a means and a merit test. Also, there is no indemnity against an adverse costs order where the applicant's legal proceedings are unsuccessful. What this means is that, where a legally assisted person is unsuccessful in legal proceedings, they are not provided with statutory protection so they do not have to pay costs awarded to the successful party. See Commonwealth Guidelines for Legal Financial Assistance 2012 (available at: https://www.ag.gov.au/LegalSystem/Legalaidprogrammes/ Commonwealthlegalfinancialassistance/Pages/Commonwealthpublicinterestandtestcases.aspx} for detailed information on how the Scheme operates and the requirements that need to be satisfied when applying for legal assistance.

The Environmental Defender's Office [2.990] The Environmental Defender's Office (NSW) (EDO) is a community legal centre specialising in public interest environmental law, assisting individuals and community groups working to protect the built and natural environment. It is part of a national network of Environmental Defender's Offices that provide similar services in other States and Territories.

The EDO is a good starting point for getting legal advice on a problem or for finding out more about environmental law in general. If you need advice, you should contact them as early as possible, as they can offer a range of services. Sometimes, the EDO runs cases in court if there is an important point of public interest at stake. Services offered include:

• initial free advice • written advice where a public interest matter is involved, including scientific assessment and advice

[2.990]

• • • • •

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representation in public interest environmental litigation publications on environmental law and public rights workshops, seminars and conferences commentary and submissions on draft environmental legislation reviews of existing environmental laws and suggestions for law reform.

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3 Land use planning Amelia Thorpe Faculty of Law University of New South Wales

Plans and plan making .............................................................................................................................................. [3.20] Local Environmental Plans ..................................................................................................................................... [3.90] How LEPs are made ................................................................................................................................................ [3.280] State environmental planning policies .......................................................................................................... [3.380] How SEPPs are made ............................................................................................................................................ [3.590] Challenging the validity of plans ....................................................................................................................... [3.51 OJ Development control plans and council policies ....................................................................................... [3.670] Identifying the relevant planning controls ................................................................................................... [3. 71 OJ

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environment, community needs, cultural significance, and economic sustainability, planners aim to improve our quality of life and create vibrant communities. As well as assessing development proposals and devising policies to guide future development, planners work in areas as diverse as housing, energy, health, education, communications, leisure, tourism and transport. They create new, and revitalise existing, public spaces, conserve places of heritage and enhance community value. The important work planners do is gaining increasing recognition as communities place greater emphasis on "liveability", environmental sustainability, the design and feel of places and public space. People and decision-makers are also increasingly interested in managing urban growth effectively in order to build a nation worth inheriting for future generations.

Greater Sydney Commission Act [3.05] The Greater Sydney Commission Act 2015 (NSW) (GSC Act) was passed and received assent in November 2015 but at the time of writing had not yet commenced. This legislation makes major changes to land use planning in NSW.

The GSC Act inserts a new Part 3B Strategic Planning into the Environmental Planning and Assessment Act 1979 (NSW). This significantly alters the nature of land use planning in NSW by providing for new strategic plans and a clear hierarchy between these and LEPs. The Act makes provision for two types of strategic plan: regional plans and district plans (s 75AA). Regions and districts may be declared by the Minister by order published on the NSW Planning portal (s 75AB). District plans must give effect to any applicable regional plan, and LEPs must give effect to any applicable district plan or, where there is no such district plan, to any applicable regional plan (s 75AI). The existing document entitled A Plan for Growing Sydney (2014) is taken to be the initial regional plan for the GSR. The GSC Act also provides for the establishment of a Greater Sydney Commission (GSC) to lead land use planning in the Greater Sydney Region (GSR). Along with a range of other consent and advisory functions (ss 9, 10, GSC Act), the GSC may make LEPs for local government areas within the GSR (ss 24, 53A, EPA Act), and may make district and regional plans within the GSR and regions and districts in any other part of the state declared by the Minister (s 75AB). [3.10] In this Chapter, please note the following abbreviations:

• the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) • the "Minister" refers to the Minister administering this legislation (currently the Minister for Planning) • the "Department" refers to the Planning Department (currently the Department of Planning and Environment) • the "Secretary" refers to the Secretary of the Department (previously known as the Director-General) • "Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW) • "Consent authority" refers to the body responsible for granting development consent, frequently a local council.

chapter 3 Land use planning

(From: https://www.planning.org.au/becomeaplanner, "What is Planning?") The EPA Act sets out a framework for planning comprising two key processes: l.

Strategic planning (forward planning), which provides an opportunity for government, landowners and the wider public to participate in the development of an overall vision for the future in the form of an agreed land use plan or plans.

2.

Development control (assessing development proposals), in which potential projects are assessed against such plans.

This Chapter deals with the first of these processes, strategic or forward planning - that is, it deals with plans and plan making. It considers the following topics:

• the range of land use planning documents • the relationship between planning instruments and development control • recent trends in land use planning law • local environmental plans (LEPs) • state environmental planning policies (SEPPs) • the relationship between various land use plans • the making of planning instruments • challenges to planning instruments • development control plans • how to identify the planning controls applicable to a particular property Chapter 5 deals with decision-making at the development control stage.

Plans and plan making [3.20] Planning is a broad term with many definitions. The Planning Institute of Australia (PIA) defines planning as: "the process of making decisions to guide future action". PIA goes on to explain:

The planning profession (which is also referred to as "urban planning" or " town planning") is specifically concerned with shaping cities, towns and regions by managing development, infrastructure and services. Planners are professionals who specialise in developing strategies and designing the communities in which we live, work and play. Balancing the built and natural

Other forms of planning [3.30] There are also other forms of forward planning that are dealt with in other chapters. These include:

• the assessment and allocation of Crown land, including the reservation and dedication of Crown Land for special uses, such as national parks and state forests (dealt with in Chapter 4) • planning for cultural and natural heritage protection (dealt with in Chapter 17) • catchment management (dealt with in Chapter 16).

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Other chapters address special applications of planning instruments, for example, Chapter 11 (environmental planning controls relating to agriculture) and Chapter 14 (planning requirements in coastal areas).

[3.50]

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protecting and conserving native animals and plants controlling advertising

The Act defines "environment" as including "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings" (s 4(1)).

Land use plans [3.40] The fundamental documents through which land use plans are set out in NSW are environmental planning instruments (EPls). EPis are legally binding. Two types of EPis may be made under the EPA Act:

• •

Local environmental plans (LEPs) State environmental planning policies (SEPPs)

EPis may be made "for the purposes of achieving any of the objects" of the EPA Act (s 24). The objects (s 5) 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 coordination of the orderly and economic use and development of land,

(iii)

the protection, provision and coordination of communication and utility services,

(iv)

the provision of land for public purposes,

(v)

the provision and coordination of community services and facilities,

(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, and

(vii)

ecologically sustainable development, and

(viii)

the provision and maintenance of affordable housing, and

(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.

Without limiting that broad scope, the Act gives some guidance as to how EPis may achieve those objects by indicating that EPis may make provision for (s 26(1)):

• protecting, improving or utilising, to the best advantage, the environment • controlling development, including by imposing development standards • reserving land for public purposes, including open space, national parks, cemeteries, hospitals, railways and schools • providing, maintaining and retaining, and regulating affordable housing • protecting or preserving trees and vegetation

The Act makes provision for a range of supplementary planning documents. Unlike EPis, these are not legally binding. They include:

• development control plans • Practice Notes and circulars • policies and strategies • Directions made under s 117

Land use planning in NSW also includes a small number of plans made under repealed provisions of the EPA Act and under older legislation. These continue in force as deemed EPls. When originally enacted in 1979, the EPA Act made provision for regional land use plans as well as state and local plans. Regional environmental plans (REPs) made under the old provisions of the Act are now deemed to be SEPPs (EPA Act, Sch 6, cl 120). REPs in force when the new provisions came into effect in 2009 were to be reviewed "as soon as practicable" and new EPis made to transfer their contents to appropriate new or existing EPis (EPA Act, Sch 6, cl 121). That process is still ongoing. At the time of writing there were 22 REPs in force as deemed SEPPs. Prior to the enactment of the EPA Act, land use planning was regulated under Part XIIA of the Local Government Act 1919. This provided for land use plans in the form of planning scheme ordinances (intended to be definitive land use plans) and interim development orders (intended to be temporary measures pending the making or suspension of a planning scheme ordinance, though in practice many areas did not reach the stage of having their own planning scheme ordinance). These ordinances and orders are deemed to be EPis under the EPA Act (see Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 (NSW), and they are gradually being replaced by LEPs. There are currently 18 remaining in force (July 2015).

Planning instruments and development control [3.50] The process of shaping cities, towns and regions described in the definition of planning above is rarely undertaken directly. Rather, the realisation of the visions set out in land use plans depends largely on the decisions of landowners - individuals, developers, local, state or federal government - as to how and when they will use their land. For example, a decision that more housing, or more of a certain type of housing, should be provided in a certain area will require the owner of the land in that area to build housing, or to pass it on to someone else who will. State and local planning departments rarely have any power to compel landowners to use their land in accordance with the vision set out in an EPI. A provision in an EPI for commercial or mixed use development where currently there were heavy industrial uses, for example, would not require the owner or operators of those industrial uses to cease operations. Instead, the EPA Act sets out a process so that when landowners make decisions about the future development of their land, they do so in accordance with relevant land use plans. The EPA Act includes two key mechanisms for achieving consistency with the direction set out in EPis:

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classification of development (ss 76, 76A, 76B)

2.

assessment of development (s 79C{l)(a)).

(3.50]

Classification of development [3.60] The EPA Act sets out three main classes of development. 1.

Development that does not need consent (s 76). An EPI may specify development that may be carried out without the need for development consent. Other provisions that apply to the particular land under the EPI (for example, development standards) must still be complied with.

2.

Development that needs consent (s 76A). An EPI may specify development that may not be carried out unless consent has been obtained and is in force. Such development must be carried out in accordance with the development consent and with the EPI.

3.

Development that is prohibited (s 76B). An EPI may specify development that is prohibited. Such development cannot be carried out on land to which the provision applies, with or without development consent.

One of the most important provisions of an EPI is the division of the area into land use zones in which various uses are classified as: permitted, permitted with consent, or prohibited.

Assessment of development [3.70] The other section that is crucial in encouraging consistency with the contents of EPis is section 79C, which sets out the factors that consent authorities must consider when determining a development application. This provides that consent authorities must consider any relevant provisions of any EPI applying to the land in question (s 79C(l)(a)(i)).

Section 79C also provides scope for the consideration of other planning documents in the development control process. Draft EPis and development control plans must be considered (ss 79C(l)(a)(ii) and (iii)), as well as broader considerations of the likely impact of development, the suitability of the site and the public interest (ss 79C(l)(b) - (e)), to which other planning documents such as policies and strategies may also be relevant.

[3.90]

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different planning controls. Amendments in 2005 allowed the Minister to stipulate the form and content of an LEP through the use of a standard instrument, which is a template that has now been adopted by almost all councils across NSW (94% as at June 2014). Legislative changes have also established a firm hierarchy between EPis, with SEPPs applying in cases of inconsistency with LEPs. More recent amendments have emphasised the non-binding status of development control plans. Although development control plans (DCPs) were never treated as legally binding, they were often given considerable weight in determining development applications. The process for making land use plans has also been streamlined. Previously, the EPA Act specified a number of steps to be followed in the making of an LEP, including environmental studies, consultation and public exhibition. Following amendments made in 2008, the process for making an LEP is set on a case-by-case basis in a "Gateway determination" made by the Minister. The requirements for the making of SEPPs were also streamlined. Another feature is increased use of the internet, with EPis, planning directions, circulars and notes and the steps in the plan making process all published on the Department's website or NSW legislation website. EPis now take effect when published on the NSW legislation website rather than when published in the NSW Government Gazette. In 2015, the Department introduced an online planning "hub" bringing together a range of planning information and interactive tools intended to make it easier to identify and understand the planning controls applicable to particular places. These shifts in the relationship between state and local government, with less scope for variation between local authorities and greater Ministerial control over planning processes, reflect changing approaches to the Act's objects in section 5(6) of promoting "the sharing of the responsibility for environmental planning between the different levels of government" and in section 5(c) of providing "increased opportunity for public involvement and participation in environmental planning and assessment". The Planning Bill introduced in 2013 continued these trends, with an emphasis on hierarchies, consistency and simplicity across the planning system.

Local Environmental Plans [3.90] A local environmental plan (LEP) consists of the written text and a map or series of maps.

Recent tre nds in the regulation of la nd use plannin g [3.80] The EPA Act has been amended over 150 times since its passage in 1979, and the

provisions regulating land use planning have changed in a number of ways. Several amendments have been made to streamline the process of land use planning, reducing both the number and variety of land use plans in NSW. This includes reducing the range of EPis from three types (SEPPs, REPs and LEPs) to two (SEPPs and LEPs), as well as consolidation to reduce the number of SEPPs. A significant change to the range of land use plans is the adoption of a Standard LEP. Previously, there was considerable variation between different councils. Most councils also had multiple LEPs in force at the same time, so a given piece of land might be covered by many

The text includes:

• a description of the aims of the plan • zoning tables categorising different areas within the council area so as to set out the types of development that are permitted or prohibited within each area • definitions of some of the words used in the LEP and in particular in the zoning tables • a description of development that is exempt from development control (exempt development) and development that is permitted without obtaining development consent if it complies with specified standards (complying development) (see [3.420])

• development standards that particular types of development have to meet • provisions for particular types of development such as subdivision and residential flat buildings within the council area.

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[3.100]

There will usually be several maps. These maps:

• identify the area to which the LEP applies • set out the zonings of different areas within the council area • identify other particular sub-areas in the council area, such as heritage conservation areas, acid sulfate soils, and flood management areas • identify where development standards apply, such as building heights and floor space ratios. An LEP when made can be found both on the NSW legislation website and usually on the council's website. A hard copy of the LEP is available for inspection without charge at the council's offices and also usually at a council's library.

The Standard LEP [3.100] Previously, councils determined the form and content of their LEPs individually. There

was considerable variation between councils, with many thousands of different zones and land use definitions in operation across NSW. Amendments to the EPA Act in 2005 enabled the Minister to stipulate the form and content of LEPs through the introduction of a standard instrument. The standard instrument sets out a template that all councils are required to use. The Standard Instrument Principal Local Environmental Plan can be found on the NSW legislation website (see http:// www.legislation.nsw.gov.au/maintop/view/inforce/epi+ 15 5 a+2006+cd+0+ N) and shows the "LEP template". The Standard Instrument (Local Environmental Plans) Order 2006 (as amended) also published on the NSW legislation website contains the "LEP template" plus clauses including those detailing how mandatory, optional and additional provisions should be addressed. Some clauses in the Standard LEP are mandatory and other clauses are optional. In some circumstances, local content may be added to clauses provided in the template (compulsory or optional) provisions, and councils can also include some separate local clauses. LEP maps must conform to the "Standard technical requirements for LEP maps". To assist in the preparation of local clauses, the Department has prepared model clauses that councils may choose to adopt as they prepare their LEPs. These cover: issues of common concern, such as minimum lot sizes, land to which plans apply, and development in areas subject to aircraft noise. Since the introduction of the standard instrument in 2006, there has been a program of repeal of older LEPs and the making of new principal LEPs for each council area in a standard form. By June 2014, 94% of councils across NSW had completed an LEP based on the standard instrument.

Zoning [3.11 0] A key function of LEPs is to divide the relevant area into zones, such as rural, residential, industrial, mixed use, environmental conservation and public recreation purposes.

Land use zones are set out in a table, with text for each setting out:

[3.120]

• • • •

chapter 3 Land use planning

objectives of the zone development permitted without consent, development permitted with consent, and prohibited development.

There are 35 zones in the Standard LEP. As well as prescribing objectives for each zone and uses to be included in each of the categories, the template also includes directions at the start of the land use table and in each of the zones. Additional local objectives may be included in a zone, provided they are consistent with the core objectives for development in the zone (which must be listed first). Additional uses may be added to (but not removed from) the list of development that is permitted or prohibited in a zone, provided they are one of the types of development listed in Direction 5 at the start of the land use table in the Standard Instrument (LEPs) Order 2006 (see also LEP Practice Note PNll-002). Under clause 2.3(2) of the Standard LEP, the consent authority must have regard to the objectives for development in a zone when determining a development application of land within the zone. This is a shift from some older LEPs, which required that development be consistent with zonal objectives. In Conservation of North Ocean Shores Inc v Byron Shire Council (2009) 167 LGERA 52, the relevant LEP required the Council to be of the opinion that the proposed development was consistent with the objectives of the zone before granting consent for the development. In this case the Court found that the Council was not of that opinion but _consent had still been granted for a temporary place of assembly for a temporary music festival on land partly zoned Habitat. As a result, the Court set aside the consent.

Case study: Consistency with objectives [3.120] In 1991 Coffs Harbour City Council resolved to construct an ocean outfall

at the "Look At Me Now Headland" to dispose of effluent. However, the objectives of the relevant zone were to enable the land to be developed for recreational purposes. Coffs Harbour Environment Centre commenced proceedings claiming that the proposed sewer outfall was contrary to the aims and objectives of the zone under the EPI. Although the works were to be mainly underground, the reserve would be closed for two years and, when open, some areas would not be available for public recreation. Distinguishing between compatibility with and promoting public recreation, the NSW Court of Appeal held that the proposed development was not consistent with the zoning objective and so was prohibited under the EPI (Coffs Harbour Environmental Centre v Coffs Harbour City Council (1991) 74 LGRA185). LEPs are complex documents, and it is important to read them as a whole and not simply refer to the zoning tables. Definitions provide important guidance as to which uses sit within the various zones. Further, even if a type of development is permitted in a particular area according to the zoning table, for example, a particular proposed development of that type may not comply with specified development standards (see [5.1230)). Conversely, a public utility may be able to undertake a project that is otherwise prohibited by a LEP (see [1.130)).

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Definitions [3.130] EPis include definitions of the uses set out in the land use zoning table - for example

"agriculture", " attic ", "building", "dwelling house" and "home industry". The Standard LEP includes a Dictionary containing approximately 250 definitions. Immediately prior to the introduction of the Standard LEP in 2006, there were some 1,700 definitions in use. This number has been reduced with the implementation of the Standard LEP. Definitions may be critical in determining whether development is permissible. The courts have often had to determine whether a council has made the correct decision as to whether a particular proposal falls within one definition rather than another (see below and [1.180]; see also Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; 136 LGERA 288; [2004] NSWCA422). In an effort to ensure that expressions and definitions were used consistently in NSW planning instruments, a set of model provisions were devised. LEPs usually adopted the definitions spelled out in these model provisions. Where model provisions were adopted it is necessary to read not only the local LEP but also the Environmental Planning and Assessment Model Provisions 1980 (NSW) to discover the meaning of words defined in the LEP. With the introduction of the Standard LEP, new LEPs have ceased to adopt the model provisions. However, the model provisions will still apply for those LEPs existing as at 30 September 2005 that adopted those model provisions.

Definitions in case low (3.140] A number of cases have dealt with the meaning of terms in EPis. Examples include:

• whether a mushroom composting process is a "rural industry" (Mittagong Mushrooms Pty Ltd v Narambulla Action Group Inc (1998) 97 LGERA 333) • whether a poultry farm is "agriculture" or a "rural industry" (Hunt v Blacktown City Council (1999)107 LGERA 156) • what constitutes a "boarding house" (Fortunate Investments Pty Ltd v North Sydney Council (2001) 114 LGERA 1) • whether a mosque is a "church" (House of Peace Pty Ltd v Bankstown City Council (2000)106 LGERA 440) • what constitutes a "residential flat building" and "cluster development" (Allison v Gosford City Council (2001) 112 LGERA 420) • what constitutes "cluster housing" (Guilfoile v Lake Macquarie City Council (2002)119 LGERA300) • what constitutes "commercial premises" (Walker v North Sydney Council (2002) 110 LGERA397) • whether land filling dependent on winning material from an existing quarry is an •

"extractive industry" (Monier PGH Holdings Ltd v Blacktown City Council (1998) 102 LGERA24) what constitutes a "floodway" (Vanmeld Pty Ltd v Fairfield City Council (2000)106 LGERA454)

[3.160)

chapter 3 Land use planning

• whether water boring and bottling is an "industry" or a "rural industry" (Liauw v Gosford City Council (2004) 136 LGERA 349) • what constitutes an "allotment" (Issa v Burwood Council (2004) 137 LGERA 221) • what constitutes a "drive-in takeaway establishment" (Woolworths Ltd v Pallas Newco Pty Ltd and another (2004)136 LGERA 288) • the meaning of "storey" (Walsh v Parramatta CC (2007) 161 LGERA 118) • the meaning of "ancillary development" (Pease v Sharpe (2007) 158 LGERA 21) • whether a supermarket is a "general store" or a "shop" (Hastings Cooperative Ltd v Port Macquarie Hastings Council (2009) 167 LGERA 205) • whether a private school is a "community facility" (Cranbrook School v Woollahra Council (2006) 66 NSWLR 379) • whether an Aldi store is a "shop" or "local shop" (Aldi Stores v Newcastle City Council [2010] NSWLEC 227) • whether a pet transportation business is a "commercial premises" or an "airport-related • •

land use" and/or "air freight forwarder" (Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147) whether a studio above a garage is a "dwelling" (Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123) whether seniors housing fell within the use of "residential flat buildings" (Abret v Wingecarribee Shire Council [2011] NSWCA 107)

Case study: Defining uses (3.150] A decision with broad implications for the definition of "shop" is that of

Westfield Management Pty Ltd v Gazcorp Pty Ltd (2004) 135 LGERA 220. The council had approved the use of a large building as a warehouse clearance outlet with 63 tenancies. Shops were a prohibited use on the land under the zoning in the relevant EPI. The development had been constructed and opened by the Minister. The court found that the definition of "shop" was wide enough to include any form of selling of items by retail, and that the development was prohibited under the relevant EPI. The court ordered that Gazcorp Pty Ltd cease the use.

Categories of development (3.160] One important function of EPis is to specify whether consent is required for various categories of development and what processes must be followed to obtain consent for land uses within each of those categories.

In addition to the three categories listed above (permitted without development consent, permitted with development consent, and prohibited), which are listed in zones, the EPA Act makes provision for several other categories of development.

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[3.170)

There are a number of ways in which developments may be declared to fall within these categories. Depending on the category, these include: the regulations, SEPPs, development control plans and declarations by the Minister. The categories of development that may be declared in an LEP are:

• exempt development (s 76(2)) • complying development (ss 76A(5), 84 - 87) • advertised development (s 29A) • designated development (s 29).

Exempt and complying developments cover minor and routine developments that are unlikely to have significant impact. Exempt development must be of minimal environmental impact and

may be carried out without the need for development consent (with some· exceptions, including wilderness areas, critical habitat and land including heritage items listed under the Heritage Act 1977). Exempt development must be carried out in accordance with other provisions of the relevant EPI, and approvals, licences, permits or other authorities may still be required under other legislation. Part 5 of the Act (explained in Chapter 6) does not apply to exempt development. Complying development must meet certain predetermined development standards, and a complying development certificate must be obtained from the council or a private certifier before the development can proceed. The Standard LEP includes compulsory provisions for exempt and complying development (Part 3 ). These refer to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 for a list of exempt and complying development, as well as schedules where councils can include additional exempt or complying development not specified in that SEPP. Exempt or complying development must not be carried out on environmentally sensitive areas (cl 3.3 ). Advertised and designated development cover developments that are likely to have a more significant environmental impact. Advertising and notification requirements apply to both, allowing members of the public to make submissions on the proposal. For designated development, which covers high impact developments, additional environmental assessment and merit review provisions also apply. In practice, these high impact developments are rarely designated in LEPs. Most advertised and designated developments are declared in the Regulation. The various categories of development are discussed further in Chapter 5.

[3.180)

chapter 3 Land use planning

• height, bulk, scale, siting, density and design • site coverage • density and intensity of use • open space and landscaping • roads, parking and traffic • drainage and earthworks • service prov1s10n • pollution control. Some developments, such as service stations, drive-in theatres and drive-in take-away food shops, tend to attract very detailed development standards. The Standard Instrument includes development standards for minimum subdivision lot sizes, height of buildings, and floor space ratio as optional clauses (Pt 4). Where such standards are adopted, councils set out their own objectives and numerical standards for each of the relevant clauses. If a council wishes to have such development standards in its area, then they must be included in the principal LEP and not through some other mechanism (such as a DCP). Development standards need not follow zone boundaries. For example, different building height limits may be identified for different parts of a zone. Development standards can also be fixed by regulations and development control plans (operating as guidelines only, as DCPs are non-binding).

Development standard or prohibition? [3.180] While the general rule is that developments must comply with development standards, there is some flexibility around this through SEPP 1 (for pre-October 2005 LEPs) and clause 4.6 of the LEP template (for post-October 2005 LEPs). Clause 4.6 provides for exceptions to development standards, enabling the granting of consent even though the development would contravene a development standard imposed by an EPI. Such exceptions would not apply, however, to development standards that are expressly excluded from the operation of this clause. Clause 4.6 is a compulsory clause.

Sometimes there is a question about whether a provision is a development standard, in which case such exceptions can apply, or a prohibition, to which SEPP 1 and cl 4.6 do not apply.

Development standards [3.170] LEPs contain development standards, which specify requirements or fix standards in relation to the carrying out of development. Generally, if a proposed development does not comply with a development standard, it cannot be approved, regardless of whether it is permissible in the relevant zone.

Examples of development standards are given m section 4(1) of the Act. They include requirements in respect of:

•

site areas, dimensions and setbacks

The courts have experienced considerable difficulty in deciding whether particular provisions are a development standard or a prohibition and various tests and approaches have been applied. See, for example: Woollahra Municipal Council v Carr (1985) 62 LGRA263; North Sydney MC v PD Mayoh Pty Ltd (No. 2) (1990) 71 LGRA 222; Strathfield Municipal Council v Poynting (2001) 116 LGERA319; Lauriev Land and Environment Court (NSW) (2002) 123 LGERA 179; Residents Against Improper Development Inc. v Chase Property Investments Pty Ltd (2006) 149 LGERA 360; Blue Mountains CC v Laurence Browning Pty Ltd (2006) 150 LGERA 130;

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Agostino v Penrith City Council (2010) 172 LGERA 380; Huang v Hurstville City Council (No 2) [2012] NSWCA 177; and Wilson Parking 1992 Pty Ltd v Council of the City of Sydney (2014) 201 LGERA232.

Case study: Development standard or prohibition? [3.190] In Agostino v Penrith City Council (2010) 172 LGERA 380 the council refused a development application for alterations to an existing fruit and vegetable store to increase its gross floor area from 150 to 765 square metres. The site was in a rural zone where fruit and vegetable stores were prohibited, but a clause in the LEP permitted such a store with a maximum area of 150 sqm. The issue was whether the size restriction was a development standard that could be varied under SEPP 1, or a prohibition that could not.

The Court of Appeal made it clear that an LEP provision could be a prohibition even when it does not appear in the zoning table. The key question was whether the restriction is an essential condition in determining whether the particular development proposed is permissible. This needs to be answered by considering the LEP as a whole, including the underlying principle as well as the structure and provisions of the plan. The Court concluded that the 150 sqm limit was an essential condition for permissibility and was therefore not a development standard capable of variation under SEPP l. It was significant that the limit defined the land use in question, and that development of that nature was permissible only because of the clause employing that definition.

Planning and property law [3.200] Planning can be understood as a restriction on property rights, in that zoning restricts the ability of property owners to develop their land in certain ways. However, planning can also be understood as protecting and enhancing property rights, by providing property owners with a degree of certainty and an opportunity to express their views on proposed changes that might affect their land. In residential areas, for example, the protection offered by zoning from undesirable uses - such as factories, brothels or prisons - may be very important to the maintenance of house prices. In New York, where an early and very influential zoning plan was introduced at the start of the 20th century, it was property owners who pressed for the adoption of land use planning.

To some degree, planning and property will always exist in tension. Typically, property owners seek to maximise flexibility regarding potential development on their own land while also maximising certainty regarding potential development on their neighbour's land. That tension, coupled with the need to balance the public interest in a well-planned environment against the practicalities of implementing change, make property an important consideration for state and local planning authorities.

[3.240]

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Existing uses [3.210] Land use planning does not occur on a blank slate. Zoning and other decisions are typically made in the context of a range of existing uses. While there would be little value in preparing land use plans that simply reflect the status quo, planning authorities need to balance the achievement of planning objectives against the significant political (and financial) pressure that would arise if existing uses were forced to cease. The EPA Act provides a compromise, with provisions enabling the continuation of non-conforming uses following zoning changes in certain circumstances (ss 106, 109, discussed in Chapter 5).

Restrictive covenants [3.220] Another issue is the relationship between planning law and the regulation of development

through property law. An EPI may, for the purpose of enabling development in accordance with the EPI or a development consent to be carried out, provide that a restrictive covenant or other instrument shall not apply to any such development (s 28). This means that a restrictive covenant registered on the title to land restricting development on the land (for example, limiting development to a single storey dwelling even though two-storey development was permissible under the LEP), can be rendered ineffective by a section 28 clause in an EPI. There have been a number of cases in which these provisions under s 28 have been upheld, forestalling the operation of a restrictive covenant (see Ludwig v Cashatt (1994) 83 LGERA 22 (aff'd Cashatt v Ludwig (1997) 8 BPR 15,519; [1997] NSW ConvR 55-810); Doe v Cogente Pty Ltd (1997) 94 LGERA 305; Owens v Longhurst (1998) NSW SC 387 applied in Jessica Estates v Lennard (2007) 156 LGERA 266; [2007] NSWSC 1175 (but where the particulars 28 clause was held not to apply because of its unusual wording); Natva Developments Pty Ltd v McDonald Bros Pty Ltd [2004] NSWSC 777; Cracknell and Lonergan Pty Ltd v Council of the City of Sydney (2007) 155 LGERA 291; [2007] NSWLEC 392). The Department has prepared a model local clause for the suspension of covenants, agreements and instruments in LEPs made using the Standard LEP (cl 1.9A).

Acquisition of land reserved for public purposes [3,230] A further issue is the use of land for public purposes. An EPI may reserve land exclusively

for purposes of open space, a public place, a public reserve or other public purposes such as a national park or public railway (s 26(1)(c)). If land was reserved then, previously, under section 27 of the EPA Act and the provisions of the LEP, the public authority (for example a local council) was required to acquire the land if the owner gave notice. However, since 2008 the obligation to acquire reserved land is found in the Land Acquisition (Just Terms Compensation) Act 1991 (s 21(1)(6)) but the owner must be suffering hardship before the requirement to acquire is triggered (s 23, see [1.410]). This is the situation even if an existing LEP applies and provides for immediate acquisition upon notice (EPA Act, ss 27(3), (4)) .

Other matters covered by LEPs [3.240] LEPs may also cover other matters, including:

• conservation of items of environmental heritage, such as historic buildings

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(3.250]

• protection of trees or other vegetation • matters that councils must take into account before granting consent to particular kinds of development (see (5.1240]) • whether a council must consult with public authorities in particular cases, and whether the authority has the power to veto certain approvals (see [5.830]) • public authority development • temporary use of land • classification and reclassification of council land (see [8.330]).

[3.280]

may be necessary in any particular case to review at least both the relevant LEP and SEPP (Infrastructure) 2007 (discussed below, [3.470]).

How LEPs are made [3.280] The process for making land use plans has changed since the introduction of the EPA Act. Previously, the process of making LEPs followed a series of steps set out in the Act. These steps have been replaced by a "gateway" process in which the process is determined by the Minister on a case-by-case basis. The Department has provided more detailed advice about the process m

Heritage conservation

•

[3.250] In recent years, LEPs have played an increasingly important role in heritage conservation. The number of items listed on the State Heritage Register maintained under the Heritage Act 1977 has decreased, in line with government policy that local councils take more responsibility for protecting local heritage.

•

The Standard LEP includes a compulsory clause for heritage conservation (cl 5.10). Heritage items and conservation areas (if any) are shown in a heritage map and described in a schedule to the LEP.

1.

Protection of trees or other vegetation [3.260] The Standard LEP includes two compulsory clauses relating to the protection of trees and vegetation. Where trees or other vegetation are prescribed for the purpose in a DCP, the ring barking, cutting down, topping, lopping, removal, injuring or destruction of such trees and vegetation must not be undertaken without consent (with some exceptions) (cl 5.9). For trees or vegetation not so prescribed, such activities are permitted without consent (cl 5.9AA).

[3.270] Prior to the introduction of the Standard LEP, LEPs usually included a schedule listing developments to which the controls under the LEP do not apply. These were primarily developments related to the activities of public utilities and public authorities. Development consent is not required for listed development when carried out by these bodies, even if the zoning tables otherwise appear to require it (or to prohibit the development altogether). This becomes important when considering the operation of Part 5 of the EPA Act (see Chapter 6). There is no schedule for the development of this type in the Standard LEP because the SEPP (Infrastructure) 2007 now deals with this type of development. Instead, the Standard LEP includes a compulsory clause referring to this SEPP (cl 5.12). That clause also provides that controls under the LEP do not apply to the use of existing Crown buildings by the Crown. For older LEPs remaining in force, SEPP (Infrastructure) 2007 does not repeal the Schedules but the SEPP prevails to the extent of any inconsistency with other EPls made before or after it. It

A guide to preparing planning proposals (NSW Planning & Infrastructure, October 2012) available at: http://www.planning.nsw.gov.au/-/media/Files/DPE/Manuals-and-guides/ a-guide-to-preparing-planning-proposals-2012-10 .ashx A guide to preparing local environmental plans (NSW Planning & Infrastructure, April 2013) available at: http://www.planning.nsw.gov.au/-/media/Files/DPE/Manuals-and-guides/ a-guide-to-preparing-local-environmental-plans-2013-04.ashx. The LEP-making process now includes the following stages:

Heritage conservation is discussed further in Chapter 17.

Infrastructure development and use of existing buildings of the Crown

chapter 3 Land use planning

The relevant planning authority (RPA) prepares a planning proposal (s 55(1)). This is usually the local council, but the Minister may direct that the Department or another body is the relevant planning authority for a particular area in certain circumstances (s 54). The planning proposal explains the effect of and sets out the justification for the proposed plan. It has five parts (s 55(2)): 1.

statement of objectives or intended outcomes

2.

explanation of the proposed provisions

3.

justification for the objectives, intended outcomes and provisions and the process for their implementation

4.

maps, with sufficient detail to indicate the substantive effect of the plan

5.

details of the intended community consultation.

2.

The planning proposal is sent to the Minister. The Department's A guide to preparing local environmental plans states that the planning proposal is assessed by the Department and then both the proposal and the Department's recommendations are forwarded to a Review Panel which provides a recommendation to the Minister.

3.

The Minister makes a gateway determination (s 56), covering:

• whether the plan should proceed (with or without variation) • whether the plan should be resubmitted, including for further studies • community and other consultation requirements, if any • times within which the various stages are to be completed.

4.

Consultation is undertaken, as required (s 57). If the RPA is of the opinion that critical habitat or threatened species, populations or ecological communities or their habitats will or may be adversely affected by the proposed LEP, it must consult with the Environment Department (s 34A).

5.

The RPA resolves to adopt and make the draft LEP.

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7.

(3.290]

The Secretary arranges drafting of the LEP and the Minister (or delegate) makes the local environmental plan (s 59). The Minister may vary the proposals submitted by the RPA, and may decide not to make the proposed LEP or to defer inclusion of matters proposed in the LEP (s 59). The LEP is published on the NSW legislation website and commences on the date of publication or a later date stated in the LEP (s 34 ).

The RPA may forward a revised proposal to the Minister at any time (s 58).

• •

These steps, including the Gateway determination, will not be required if: the LEP being made is an amending LEP to correct an obvious error or to address matters of a minor nature in the principal instrument, or the Minister considers that the matters dealt with in the LEP do not warrant compliance with the conditions precedent for the making of the LEP because they will not have any significant adverse impact on "the environment or adjoining land" (s 73A).

The Planning Department website contains a database of planning proposals, enabling the tracking of progress of particular LEPs.

Environmental studies (3.290] There is no express requirement for environmental studies in the making of an LEP.

Prior to the 2009 amendments, environmental studies were required when the plan was first made for the area. In most cases there was at least a deemed EPI in existence, so the decision whether or not to order a study was made by the Minister or the Secretary. There is provision in the context of the Gateway determination for resubmission of a proposal for any reason including for "further studies or other information" (s 56). The reference to "further studies or other information" suggests that there perhaps should be an initial study or studies for the planning proposal. Section 55(3) provides that the Secretary may issue requirements in relation to the preparation of a planning proposal. The Department's Planning Circular PS 09-015 states that the Secretary's requirements under section 55(3) are in the Department' s publication A guide to preparing local environmental plans and that the requirements are found in figures 3 and 4 of the Guide. Figure 3 includes the requirements for justification of the planning proposal including the need for the planning proposal and the question whether the planning proposal is a result of any strategic study or report. Figure 4 simply repeats this question. The Planning Department publication A guide to preparing planning proposals states that proposals should, at a minimum, "identify any environmental, social and economic impacts associated with the proposal", but that comprehensive information is not required at this stage. Rather, planning proposals should identify the relevant issues. The Gateway determination would then confirm the studies and investigations required and the process for continuing assessment of the proposal, including whether it would need to be resubmitted following completion of the studies or investigations. An owner of land may request a plan making process. In that case the RPA may, as a condition of doing so, require the owner to carry out any studies or other information or to pay the costs of the authority. (s 54(3)).

[3.310]

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Public participation (3.300] Consultation requirements are set as part of the Gateway determination. This may include a determination that no community consultation is required (s 57(3)). Where consultation is required, the RPA must undertake such consultation in accordance with the requirements.

The planning proposal (as revised to comply with the Gateway determination and in approved form) is to be made publicly available during the period of community consultation. Detailed provisions may be summarised instead of being set out in full if the Secretary is satisfied the summary provides sufficient details for community consultation. The Department's Guide indicates that the complete planning proposal and supporting studies should also be available for inspection. During the consultation period, any person may make a written submission to the RPA. Submissions may (but need not) be made publicly available. A person making a submission may request that the RPA conduct a public hearing. The RPA must arrange a hearing if it considers the issues raised are of sufficient significance (s 57(3), (5)). Even without a request, the RPA may arrange a public hearing. Community consultation is complete only when the RPA has considered any submissions and the report of any public hearing into the proposed LEP (s 57(8)). The Act provides that regulations may prescribe standard consultation requirements, but no such regulations have been made. The Department' s Guide states that consultation will be tailored to specific proposals, and indicates that the exhibition period will generally be 28 days, or 14 days for low impact proposals. The Guide sets out the manner of public exhibition, what the written notice must contain and the material that must be made available for inspection. There are special provisions for a public hearing reclassifying public land from "community" to "operational" under the Local Government Act 1993 (see [5.920]).

If the RPA varies the proposals, further community consultation is not required unless the Minister so directs in a revised Gateway determination (s 58(3)). In contrast to the steps for making LEPs under the repealed provisions of the Act, the legal drafting of the LEP takes place after these steps to give effect to the final proposals (s 59(1)) and there is no public exhibition of the draft LEP.

Guidance on the content of an LEP [3.310] The making of an LEP, including the content, is mainly a cooperative process between a council and the Minister/Department, with the Minister having the ultimate authority. Under sections 55 and 56 of the EPA Act a council can decide to prepare a planning proposal and forward it to the Minister. While the planning proposal must include the information required by section 55, the substantive content is determined by the council. This is subject to a number of limitations:

• the template set out in the Standard LEP (see [3.100]) • directions made by the Minister under section 117 • requirements for LEPs set out in some SEPPs.

While the EPA Act stipulates that it is the Minister who makes the LEP (s 59), in practice many local plan making functions have been delegated to local councils following administrative

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[3.320]

changes that came into effect on 2 November 2012. Departmental Circular PS 12-006 Delegations and independent reviews of plan-making decisions indicates the plan making powers that may be delegated to local councils, and lists the types of proposed LEPs for which these functions are routinely delegated. See also the Department's publication A guide to preparing local environmental plans for a list of LEP-making delegations.

Directions under s 11 7(2) (3.320] Directions under section 117(2) of the EPA Act place restrictions on councils that are intending to develop a LEP. Before amendments to the Act in 1985, directions could only be made if they dealt with matters of significance for State or regional environmental planning. This restriction has been removed.

[3.350]

chapter 3 Land use planning

These directions contain provisions allowing inconsistency of a planning proposal with a direction to be justified.

Case study: Consistency with s 11 7 directions (3.330] In Smith v Wyong Shire Council (2003) 132 LGERA 148, an LEP was made that was inconsistent with a section 117 direction not to reduce residential density and not to increase residential flat development standards. The NSW Court of Appeal by majority held that the non-compliance did not invalidate the LEP, but the failure of the council to publicly exhibit the applicable section 117 direction did mean that the LEP was invalid. Section 117(5) now specifically provides that a LEP or planning proposal cannot in any court proceedings be challenged, reviewed, called into question, or be prevented from being made on the basis of anything in a section 117 direction.

Previously, if a council did not comply with relevant directions, the Secretary could refuse to issue the certificate required to place a draft LEP on public exhibition. These provisions have been repealed, with an exception for pending draft LEPs as at July 2009.

Departmental circulars

New directions, mostly commencing on 1 July 2009, were issued in relation to planning proposals. The following discussion gives an indication of some of the issues on which councils are directed in formulating planning proposals.

(3.340] The Department issues Practice Notes and Planning Circulars to provide guidance to councils in relation to planning issues. They are published on the Department's website and cover matters such as:

Some directions under section 117(2) apply to all local government areas; others have more specific application. Most of the first group are designed to preserve the status quo unless change can be fully justified. These include directions that planning proposals must:

• retain the areas and locations of existing business and industrial zones (direction 1.1) • include provisions that facilitate the protection and conservation of environmentally

sensitive areas (direction 2.1) and the conservation of heritage items, areas, objects and places (direction 2.3)

• not reduce the permissible residential density of land, and not permit residential development until land is adequately serviced (direction 3 .1) • include provisions that give effect to and are consistent with policies and strategies such as

Improving Transport Choice - Guidelines for planning and development, the Acid Sulfate Soils Planning Guidelines, NSW Flood Prone Land Policy, and Planning for Bushfire Protection 2006 (directions 3.4, 4.1, 4.3, 4.4, 5.1, 7.1)

• minimise the inclusion of provisions requiring concurrence, consultation or referral of development applications to a Minister or public authority (direction 6.1) • not identify development as designated development except in particular circumstances (direction 6.1) • not create, alter or reduce existing zonings or reservations of land for public purposes without approval from the relevant authority and the Department (direction 6.2) • reserve land for public purposes where requested by the Minister or public authority, and include and/or remove provisions relating to such land as requested (direction 6.2) • avoid site specific planning controls when undertaking spot rezoning (direction 6.3)

• the standard instrument • the LEP-making process • following section 117 Directions • the implementation of particular SEPPs, REPs, regional, metropolitan and draft subregional strategies

Practice Notes and Planning Circulars do not have legal status. In one instance the Court found that a Departmental circular did not correctly interpret the law (Burns Philp Trustee Co Ltd v Wollongong City Council (1983) 49 LGRA 420). Practice Notes and Planning Circulars generally offer guidance and may assist in understanding the processes and law being discussed and, particularly, the way in which the Department and councils will interpret the relevant prov1s1ons.

Strategic plans (3.350] The Department regularly produces strategic plans to guide planning across the State. These strategies are not legal instruments but are important guiding documents in relation to local planning and the making of LEPs. Directions issued under section 117 provide that planning proposals must be consistent with regional strategies (direction 5.1) and with the metropolitan strategy (direction 7.1). The Planning Bill 2013 contained a number of proposals to provide clearer "lines of sight" between plans at various levels, with local plans subject to a much stronger hierarchy of regional and state level plans. In line with this, the Department released a new Metropolitan Strategy in 2014 to guide planning over the next 20 years, A Plan for Growing Sydney. This will be followed by a number of Subregional Delivery Plans.

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[3.360)

chapter 3 Land use planning

[3.380)

Amendment of LEPs

State environmental planning policies

[3.360] LEPs, like all EPis, are not intended to last indefinitely. While some degree of stability is necessary, plans need to be updated in light of changing demographic, economic, environmental and other circumstances. The EPA Act thus provides that councils shall keep their LEPs under regular and periodic review "for the purpose of ensuring that the objects of this Act are, having regard to such changing circumstances as may be relevant, achieved to the maximum extent possible" (s 73 ).

[3.380] In practice, SEPPs are not policies in the strict sense of the word. SEPPs have, for example, amended the details of LEPs, usually by permitting development that would otherwise be prohibited or by imposing consent requirements that do not exist under LEPs. Most SEPPs expand the range of permissible activities, though some may have the opposite effect (SEPP 50, for example, prohibits the development of new canal estates).

Amendments to all LEPs, including deemed LEPs, are made by new LEPs (s 74). Section 74 of the Act simply provides that an EPI may be amended in whole or in part by a subsequent environmental planning instrument whether of the same or of a different type. Amended includes altered, varied or repealed. There are no further prescriptions or rules in relation to amendment of EPis except in relation to: (a)

minor amendments to correct pbvious errors or to address matters of a consequential or minor nature. In these cases any conditions for the making of an EPI need not be complied with (s 73A(l)(a), (b)); and

(b)

EPis dealing with matters that the Minister considers do not warrant compliance with the conditions precedent because those matters will not have any significant adverse impact on the environment or adjoining land. Therefore on an amendment the Minister can decide that there will be no public exhibition, no community consultation, no studies, no justification and no planning proposal (s 73A(l)(c)).

Combining planning with project control [3.370] The EPA Act provides that an application for development consent may be made, and considered by the consent authority, even if its approval would require amendment of the relevant EPI (s 72J). Amendments to EPis in such cases are known as "spot rezoning", and are frequently concerned with rezoning quite small blocks of land. Spot-rezoning is really quite different to strategic or forward planning. It is a way of making adjustments to a plan to take account of circumstances not envisaged when it was first made, and may be understood as part of the process of project control. Division 4B of Part 3 of the Act applies if an EPI must be amended so that a proposed development can be carried out. It is intended as a procedural simplification, speeding up the process by enabling the processing of an amending EPI at the same time as a development application. The amending EPI and the development application can be jointly exhibited (s 72K). An appeal against a refusal of development consent does not affect the power of the council to decide not to proceed with an LEP.

If an amending LEP is principally concerned with permitting State significant development that is wholly or partly prohibited, the decision on the LEP and the development application is made by the Planning Assessment Commission under Ministerial delegation (s 89E(6)). In such cases, the Secretary may undertake the planning authority functions in the plan making process (s 89E(5)).

Most of the provisions in the EPA Act dealing with the content of EPis apply to SEPPs as well as LEPs. However, SEPPs are made with respect to matters "of State or regional environmental planning significance" (s 37). While certain features are more likely to be found in LEPs (such as zoning and development standards), most can be found in both (eg the Major Development SEPP sets out zoning and development standards for a range of areas). The Court of Appeal has confirmed that SEPPs may deal with detailed planning matters, not just broader policy issues (see Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31). There are also some exceptions. For example, there are some categories of development that can be declared by a SEPP, but not by an LEP. SEPPs can declare development to fall within all of the categories for which this may be done by an LEP (exempt, complying, advertised and designated development). There are also two other categories of development that may be declared in a SEPP: 1.

State significant development (ss 89C - 89L)

2.

State significant infrastructure (ss 115T - 115ZM).

As their names suggest, these are major developments for which particular procedures apply. SSD and SSI are discussed further below ([3.460]) and in Chapter 5. At the time of writing, there were over 60 SEPPs in force. A full list and general description of SEPPs is available on the Department's planning "hub" at http://www.hub.planning.nsw.gov.au/ PlanningControls/StateEnvironmentalPlanningPolicies/ ListofStateEnvironmentalPlanningPolicies % 2 8SEPPs % 29. as px. Examples of different types of SEPPs and those of general application are discussed below. SEPPs with specific relevance to particular aspects of NSW environmental law are discussed in relevant chapters:

• SEPP 30- Intensive Agriculture, SEPP 15- Rural Land Sharing Communities and SEPP (Rural Lands) 2008 are dealt with in Chapter 11, Agriculture. • SEPP 33- Hazardous and Offensive Development and SEPP 55- Remediation of Land are discussed in Chapter 9, Pollution control and waste disposal. • SEPPs 14- Coastal Wetlands, 19- Littoral Rainforests and 26-Bushland in Urban Areas

impose development consent requirements on certain activities impacting upon native flora. SEPP 44 applies more generally to protect koala habitat. They are dealt with in Chapter 12, Biodiversity and Chapter 14, Coastal and riverside land. SEPP 39 applies to development for the creation and protection of a bird habitat at Spit Island at Towra Point, Kurnell.

• SEPP (Mining, Petroleum Production and Extractive Industries) 2007 is dealt with m Chapter 18, Mining. • SEPP 62-Sustainable Aquaculture is dealt with m Chapter 19, Fisheries and aquatic ecosystems.

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• SEPP 71-Coastal Protection and SEPP SO-Canal Estate Development are dealt with in Chapter 14, Coastal and riverside land.

SEPPs increasing flexibility in the development assessment process [3.390] Several SEPPs have been used to vary the procedures for granting development consent as set out in LEPs. SEPP 1 and the SEPPs relating to exempt and complying development were introduced to provide flexibility in the application of planning controls in particular circumstances, and to promote consistency in the approaches taken by different councils. The Standard LEP contains compulsory provisions covering much of the content of those SEPPs, with the result that their significance for planning in NSW has been reduced.

SEPP 1 [3.400] SEPP 1 provides for the granting of consent to development applications that did not comply with relevant development standards, in circumstances where such compliance would be unreasonable or unnecessary or tend to hinder the attainment of the objects of the Act. The intention was to avoid the rigidity associated with development standards setting requirements such as floor space, site area, height, density and intensity of development (see above, [3.170]). The applicability of SEPP 1 has been greatly reduced by the adoption of the Standard LEP, which sets out a similar procedure for objections to development standards (cl 4.6). SEPP 1 does not apply where the applicable LEP was made in accordance with the Standard LEP (cl 1.9). A person wishing to apply for development under SEPP 1 should submit a written objection (a "SEPP 1 objection") demonstrating how compliance is unreasonable or unnecessary. The consent authority, with the (generally assumed) concurrence of the Department, may then grant consent if satisfied that the objection is well grounded and the granting of consent is consistent with the aims of SEPP 1. SEPP 1 has been considered by the Land and Environment Court on a number of occasions. The court has held that compliance is "unnecessary" or "unreasonable" within the terms of the SEPP in a number of ways, including:

• the objectives of the standard are met despite the non-compliance • the underlying purpose of the standard is not relevant to the proposed development • the zoning of the land is unreasonable or unnecessary • where the council has virtually abandoned or destroyed the standard by its own action.

See Winten Property Group Ltd v North Sydney Council (2001) 130 LGERA 79 at [26] and in Wehbe v Pittwater Council (2007) 156 LGERA 446. Compliance cannot be established through the variation of the standard in other instances. If a development standard is varied under SEPP 1, this means only that compliance is not appropriate in the particular circumstances. SEPP 1 cannot be used as a substitute for the plan making process (Hooker Corp Pty Ltd v Hornsby Shire Council (1986) 130 LGERA 438; Circular Bl). In Legal and General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201, the

[3.420]

chapter 3 Land use planning

Court of Appeal warned of the dangers of misusing SEPP 1 to bypass planning decisions that had been made through the planning process in consultation with the community, without being obliged to obtain further community input. SEPP 1 makes no reference to the extent of the variation permissible, with the result that substantial variations may be allowed in appropriate cases. In Legal and General Life of Australia Ltd v North Sydney Municipal Council (1990) 69 LGRA 201, the Court of Appeal upheld a decision to allow a floor space ratio more than four times that permitted by the development standards, and a height ratio more than three times greater. One important question constraining the applicability of SEPP 1 is whether the relevant provision is indeed a development standard. If it is found to be a prohibition, SEPP 1 will not apply (see above, [3.180]). SEPP 1 does not apply to complying development (see [5.320]). A SEPP 1 objection is only required in instances of non-compliance with a development standard, being a provision found in an EPI or the regulations (see EPA Act, s 4 Definitions). Without the objection there is no discretion to vary such standards as they are "nondiscretionary", and so need the provision of another EPI (such as SEPP 1 or cl 46) to allow flexibility in their application (EPA Act, s 79C(3)(b)). For standards in which a discretion to vary is available - for example those found in development control plans - a SEPP 1 objection is not required.

SEPP 4 and SEPP 60 [3.41 0] SEPP 4 - Development Without Consent and Miscellaneous Exempt and Complying Development and SEPP 60 - Exempt and Complying Development set out a range of exempt developments, for which consent is not required, and complying developments, for which, if prescribed development standards and controls are met, consent must be granted by the issue of a complying development certificate. The relevance of both of these SEPPs has been reduced with the inclusion of similar provisions in LEPs by local councils (in which case SEPP 4 and SEPP 60 do not apply), the adoption of the Standard LEP (which includes compulsory clauses for exempt and complying development, and excludes the operation of SEPP 4 and SEPP 60, cl 1.9), and the SEPP (Exempt and Complying Development Codes) 2008 (which amends and limits the application of both SEPP 4 and SEPP 60).

SEPP {Exempt and Complying Development Codes) 2008 [3.420] This SEPP aims to provide streamlined assessment processes for development that complies with specified development standards that apply across the state, instead of local controls. It includes a range of codes covering particular types of development. The General Exempt Development Codes identify types of development of minimal environmental impact that may be carried out without the need for development consent. The Complying Development Codes identify types of development that may be carried out in accordance with a complying development certificate. There are exceptions, such as land in environmentally sensitive, heritage or wilderness areas (cl 1.19). A number of codes have been added to this SEPP since its introduction. At the time of writing, the SEPP includes the following codes:

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• General Exempt Development Code (Part 2, Division 1) • Advertising and Signage Exempt Development Code (Part 2, Division 2) • Temporary Uses and Structures Exempt Development Code (Part 2, Division 3) • General Housing Code (Part 3) • Rural Housing Code (Part 3A) • Housing Alterations Code (Part 4) • General Development Code (Part 4A) • Commercial and Industrial Alterations Code (Part 5) • Commercial and Industrial (New Buildings and Additions) Code (Part 5A) • Subdivisions Code (Part 6) • Demolition Code (Part 7) • Fire Safety Code (Part 8) These codes are given force in LEPs through the compulsory provisions in the Standard LEP for exempt and complying development, which enable councils to add, but not remove, types of exempt and complying development (discussed above, [5 .320]).

SEPPs introducing mechanisms to improve the quality of development

[3.450]

chapter 3 Land use planning

consent authority must refer the application to the relevant design review panel (if any). The advice of the relevant design review panel for the area must be taken into account when determining a development application to carry out residential flat development. Failure to have regard to the SEPP 65 mandatory considerations was found to be an error of law in Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223; [2009] NSWLEC 179.

SEPP {Building Sustainability Index: BASIX] 2004 (3.440] SEPP (Building Sustainability Index: BASIX) 2004 aims to encourage sustainable residential development. BASIX is a certification process applied to development applications for residential housing (see [10.420]). The aims of BASIX are essentially achieved through the Environmental Planning and Assessment Amendment (Building Sustainability Index (BASIX)) Regulation 2004. The purpose of this SEPP is to ensure that EPis and development control plans do not detract from the BASIX requirements. BASIX came into effect on 1 July 2004, with its application expanded in stages until 2007. It applies to residential projects (single and multiple) with a total estimated cost of works over $50,000. BASIX requires assessment of how proposed development performs by reference to several sustainability indices. These include savings in mains-supplied potable water consumption, greenhouse gas emissions and thermal performance. The assessment is undertaken using an online program, which assesses the design using information such as site location, house size, building materials and fittings for hot water, cooling and heating.

SEPP 65 - Design Quality of Residential Apartment Development [3.430] SEPP 65 aims to improve the design quality of residential flat development. It sets out ten design quality principles, including:

SEPPs regulating specific sites or projects

1.

context

2.

scale

(3.450] There are a number of SEPPs that manage specific sites or facilitate particular developments. These include:

3.

built form

4.

density

5.

resource, energy and water efficiency

6.

landscape

7.

amenity

8.

safety and security

9.

social dimensions and housing affordability

10.

aesthetics.

SEPP 65 requires that an EPI or other plan in relation to residential flat development should include provisions ensuring the achievement of the design quality principles. The principles must also be considered in determining a development application. SEPP 65 provides for the establishment of design review panels for residential flat buildings, comprising experts such as architects, urban designers, environmental planners and landscape architects. Before determining a development application for residential flat development, the

• SEPP (Western Sydney Park/ands) 2009 • SEPP (Western Sydney Employment Area) 2009 • SEPP (Kosciuszko National Park -Alpine Resorts) 2007 • SEPP (Sydney Region Growth Centres) 2006 • SEPP 59 - Central Western Sydney Regional Open Space and Residential • SEPP 47 - Moore Park Showground • SEPP 39 - Spit Island Bird Habitat • SEPP 29 - Western Sydney Recreation Area • SEPP (Kurnell Peninsula) 1989 • SEPP (Penrith Lakes Scheme) 1989

The use of SEPPs in this way may be controversial, in that they remove such areas from local control. The courts have approved this use of SEPPs to override LEPs and to transfer decision-making power to the State government. In Darling Casino Ltd v Minister for Planning (1995) 86 LGERA 186, the court upheld the use of a SEPP (SEPP 41) to override the relevant LEP to permit development for the purposes of a casino at Darling Harbour, and to make the

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Minister, rather than the local council, the consent authority. In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 the court upheld the similar use of a SEPP (SEPP 47), permitting the redevelopment of the Moore Park showground as a film and television studio. REPs were often used to manage particular areas, and a number of these continue in operation as deemed SEPPs. These include:

• Willandra Lakes REP No 1 - World Heritage Property • Sydney REP No 16 - Walsh Bay • Sydney REP No 18 - Public Transport Corridor • Sydney REP No 19- Rouse Hill Development Area • Sydney REP No 24 - Homebush Bay Area • Sydney REP No 26 - City West • Jervis Bay REP 1996 • Sydney REP (Sydney Harbour Catchment) 2005 • Sydney REP No 30- St Marys • Sydney REP No 33 - Cooks Cove

SEPP {Major Development] 2005 and SEPP {State and Regional Development] 2011 [3.460] In recent years SEPPs have been used to override local planning controls and enable large projects to proceed, sometimes in the face of local opposition. For example, SEPP (Major Development) 2005 identified development to which Part 3A of the Act applied. The Minister was the consent authority for these projects and other EPis had limited application. Legislation to repeal Part 3A was enacted in June 2011, but SEPP (Major Development) 2005 and Part 3A will continue to apply for some time to projects already in process at the time of the repeal (see EPA Act, Schedule 6A and SEPP (Major Development) 2005, cl 17). Part 3A has been replaced by two new streams for large projects: 1.

State significant development (SSD), which will be subject to Part 4 development consent determined by the Minister rather than a local council

2.

State significant infrastructure (SSI), which will be determined by the Minister and assessed under Part 5.1 of the EPA Act (see [5.2750]).

[3.480]

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Schedule 3 lists state significant infrastructure by general categories, including all general public authority activities which, in the opinion of the public authority, would require an environmental impact statement to be obtained under Part 5 of the Act (see Chapter 6). Other classes include port facilities, rail infrastructure and water supply systems where there is a minimum capital investment value of $30 million, and also pipelines and submarine telecommunication cables. Schedule 4 lists SSI by specified sites. Schedule 5 lists specific sites as part of particular projects as critical SSI, including Pacific Highway projects, certain rail infrastructure projects, the F3-M2 (NorthConnex) project, and WestConnex. Part 3A, SSD and SSI are discussed further in Chapter 5.

SEPP {Infrastructure] 2007 [3.470] SEPP (Infrastructure) 2007 consolidates a number of earlier SEPPs addressing specific projects, standardising provisions relating to infrastructure across the state. This SEPP:

• enables development on Crown Land if development is permissible on adjoining land, despite the provisions of any LEP (cl 18) • classifies certain development by or for a public authority as exempt development (cl 20) • specifies a range of infrastructure development which may be carried out without

development consent or with development consent in various specified zones within other EPls. This operates notwithstanding provisions in a relevant LEP that may otherwise prohibit or require consent for such development. For some of the development the provisions only apply if carried out by or for a public authority. For other infrastructure development this is not a requirement. The SEPP specifies 25 categories of infrastructure development, including: transport facilities, prisons, schools, TAFEs, universities, energy generating, transmission and distribution works, bushfire hazard reduction, health service facilities, port facilities, railways, roads and traffic, sewerage systems and telecommunications facilities. The SEPP includes some exceptions and requirements, including for consultation with local councils and other public authorities. In many of these cases, where the proposal is not a State significant infrastructure proposal requiring approval under Part 5.1 of the EPA Act when it comes into operation (see [5.2750]), environmental assessment of the work involved will be carried out under Part 5 of the EPA Act (see Chapter 6).

These two classes of development are set out in SEPP (State and Regional Development) 2011. SSD is identified in a number of ways. Schedule 1 lists SSD by the type of development (for example, agricultural and aquaculture development; certain manufacturing industries; water infrastructure and waste management; hospital, educational establishments and prisons). This is often combined with criteria relating to minimum capital investment value or minimum quantity of goods produced, or to the location of the development (for example, near environmentally sensitive areas). Schedule 2 lists SSD according to specific sites, including Sydney Opera House, Sydney Olympic Park, Luna Park, Barangaroo, Darling Harbour, Redfern-Waterloo Authority Sites, Western Sydney Parklands, Taronga Zoo and Fox Studios. Minimum investment values or other similar criteria are set for many sites.

Environmentally sensitive areas [3.480] Several SEPPs have been used to establish policy frameworks for environmentally sensitive areas. These include: SEPP 14 - Coastal Wetlands (restricts activities such as land clearing and drainage work on over 1300 identified wetlands, imposing an obligation to obtain development consent)

• • SEPP 19 - Bushland in Urban Areas (protects bushland in public open space zones and reservations, and aims to ensure that bushland is given high priority when LEPs are prepared) • SEPP 26 - Littoral Rainforests (applies to specified local government areas on the Pacific coast, imposing an obligation to obtain development consent for certain activities)

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•

[3.490]

SEPP 44 --~oala H_abitat Protection (restricts development in specified local government areas, requmng environmental studies before development can be approved)

• SEPP 71 -

Coastal Protection (introduced a development assessment framework for the coastal zone, ~nd aims to ensure development in the zone is appropriate, suitably located and managed consistently and strategically). See Chapter 14.

•

SE~~ (Sydney Drinking Water Catchment) 2011 (requiring consent authorities to be satisfied that a proposed development will have a neutral or beneficial effect on water quality before grantmg consent)

SEPPS regulating and restricting particular industries and activities [3.490) SEPPs have also bee~ used to regulate particular industries and types of development.

These SEPPs may make certa_m development permissible with consent, even when prohibited under ~n EPI; they may also Impose additional restrictions or prohibitions. Examples of these SEPPs mclude:

• SEP~ 1_5 - Rural Land~sharing communities (makes multiple occupancy development perm1ss1ble with consent m rural and non-urban zones, subject to specified criteria) • SEP~ 30- Intensive Agriculture (requires consent and specifies information and notification reqmrements for large cattle feedlots and piggeries) • SEPP 33 - Hazardous and Offensive Development (provides definitions for "hazardous industry", "hazardous storage establishment", "offensive industry" and "offensive sto t bl' h " d ·f· rage es a rs ment an speer res matters to be considered before the granting of consent for such uses)

• SEPP 36 - Manufactured Home Estates (seeks to promote affordability and security of tenure for ~es1dent_s by allo:"ing MHEs to be located on certain land where caravan parks are permitted m certam council areas, and by making the subdivision of estates by community title or leases permissible with consent)

• SEPP SO - Canal Estate Development (prohibits the development of new canal estates) • ofSEPP 55 - Remediation of Land (specifies state-wide planning controls for the remediation contaminated land) • ~EPP 62 ~ Sustainable Aquaculture (encourages the "sustainable expansion" of the mdustry,. w~th stan~ar_d app~oaches to the identification and categorisation of aquaculture and restnct10ns on its 1dent1f1cation as designated development)

• SEPP_64 - Advertising and Signage (regulates outdoor advertising, amendments in 2007 permit and regulate outdoor advertising in transport corridors) • SEPP (Temporary Structures) 2007 (provides for the erection of temporary structures and the use of places of public entertainment while protecting public safety and local amenity) • SEPP (Mining, Petroleum and Extractive Industries) 2007 (provides for the management and development of mmeral, petroleum and extractive material resources)

chapt er 3 Land use planning

[3.520)

Development assessment under the Mining SEPP [3.500] State Environmental Planning Policy (Mining, Petroleum and Extractive Industries)

2007 clarifies the categories of mining, petroleum production and extractive industries activities that are permissible with and without development consent. It also sets out development standards and the procedure for applications for development consent, including matters for consideration by consent authorities in determining whether to grant consent. In 2008, the Mining SEPP was amended, including a change to those considerations so that the SEPP prioritised the significance of the mineral resource over other environmental, social and economic considerations in the SEPP. The amendments were made following a decision in the NSW Court of Appeal confirming the rejection in the Land and Environment Court of planning approval for the expansion of the Warkworth mine in the NSW Hunter Valley. Considering a new application under the amended SEPP in 2015, the Planning Assessment Commission found that the application to expand the mine was capable of being approved. In August 2015 the Government amended the Mining SEPP to remove that provision, with the stated aim of providing "a more balanced framework for decision making."

Housing and urban consolidation [3.51 OJ Another controversial purpose for which SEPPs have been used is to pursue policies

related to urban consolidation and affordable housing. Planning policies and strategies consistently include provisions to increase urban consolidation, responding to increasing infrastructure and servicing costs, increasing environmental impacts and declining social equity caused by the continued growth of suburbs. Related to this, growing problems of housing supply and affordability have prompted a number of policies and initiatives intended to maintain and increase the supply of affordable housing across the state, and particularly in Sydney. However, while the social, economic and environmental benefits of such policies are widely agreed, councils are often reluctant to implement such policies at the local level. A number of SEPPs have been used to implement such policies.

SEPP {Affordable Rental Housing] 2009 [3.520] This SEPP aims to increase the supply and diversity of affordable rental and social housing across NSW. Affordable housing is defined as housing for very low to moderate-income households. The SEPP covers housing types including villas, townhouses and apartments that contain an affordable rental housing component, along with secondary dwellings (granny flats), boarding houses, group homes, social housing and supportive accommodation.

The SEPP permits group homes with consent and small group homes by a public authority, some without consent, in several residential and other zones. For affordable rental housing it provides incentives by way of floor space ratio bonuses and non-discretionary development standards (consent cannot be refused on these grounds when a proposal complies with the standards) and seeks to facilitate an expanded role for not-for-profit providers. It makes boarding houses permissible with consent and subject to minimum standards in a range of residential and non residential zones. Subject to a site compatibility certificate, the SEPP enables

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any land close to a railway station or in some rural centres near the CBD to be developed for affordable housing flats by a public authority or social housing provider or the Land and Housing Corporation (Part 2, Division 5). Affordable housing must be used as such for a minimum of 10 years, and must be managed by a registered community housing provider. Amendments in 2011 reduced the scope of the SEPP, for example by removing the provisions expanding the permissibility of dual occupancies, multi-dwelling housing and residential flat buildings to land where such dwellings are already permissible under another EPI. Requirements for parking were also tightened, and a new "character" test introduced for developments proposing to make use of the floor space bonus. The SEPP also includes provisions designed to retain existing affordable rental housing. These apply to a residential flat building that contained a low rental dwelling or was a boarding house as at 28 January 2000. For these, consent is required for demolition, altering or adding to the structure, changing use, or, if a residential flat building, strata subdivision. On an application for consent, the consent authority is to take into account Guidelines for the Retention of Existing Affordable Rental Housing and specified matters, such as the effect of the development on affordable housing in the area, including whether there is sufficient comparable accommodation.

SEPP 70 -Affordable Housing {Revised Schemes) [3.530] SEPP 70 enables specified councils to assign an affordable housing contribution to certain developments within their local government area. This scheme is currently operating in Ultimo, Pyrmont and Green Square only.

[3.570]

chapter 3 Land use planning

some forms of housing in adjoining urban areas, except for some environmentally sensitive areas. Consent must first be obtained, and the consent authority must be satisfied that residents of the proposed development have reasonable access to facilities and services. The SEPP sets out applicable development standards and matters for consideration, and requires the consent authority to take into account a site analysis and a range of design principles in determining whether or not to grant consent. In some circumstances a site compatibility certificate is required. The importance of this SEPP has been reduced with the adoption of the Standard LEP, which includes compulsory clauses making "seniors housing" and a range of other dwelling types permitted with consent in general, medium and high density residential zones.

SEPP 32 - Urban Consolidation {Redevelopment of Urban Land) [3.560] SEPP 32 aims to promote the use and development of land no longer required for the purpose for which it is currently zoned or used to be redeveloped for multi-unit housing and related development. This implements a policy of urban consolidation, which is intended to further social, economic and environmental goals by:

• establishing houses where there is existing public infrastructure, transport and community facilities • increasing opportunities to live close to employment, leisure and other opportunities • reducing the rate at which land is released for development on the fringe of existing areas • providing a greater diversity of housing types to provide for changing demographic and household needs.

Green Square Affordable Housing Program [3.540] The Green Square Affordable Housing Program aims to enable people on low to moderate incomes "to continue to live and work in Green Square". The program is delivered in partnership between the community, development industry and government, with City West Housing as the community housing provider. Monetary contributions for affordable housing form a condition of development consent for development in Green Square, and these are used to provide affordable housing. The aim is to provide about 330 rental units for very low to moderate-income households as development continues in the area over the next 15 to 20 years. More information regarding how contributions are calculated is available on the City of Sydney website: http://www.cityofsydney.nsw.gov.au/development/planning-controls/affordablehousing-and-development-contributions/green-square-affordable-housing.

Under SEPP 32, councils and the Minister must consider whether urban land is surplus to current needs and whether it should be redeveloped for multi-unit housing. When preparing EPis or considering development applications, councils and the Minister must implement the aims and objectives of the SEPP to the fullest extent practicable. In spite of the repeal of provisions in the legislation dealing with Regional Environmental Plans (see [3.40]), SEPP 32 continues to provide that the Minister must consider whether the redevelopment of urban land for multi-unit housing is a matter of regional planning significance, meriting the preparation of a REP to allow for larger housing developments or a particular type of housing for which there is a need. Where such a plan is prepared, the Minister becomes the consent authority and the proposal must be advertised (ell 10, 12). In deciding whether or not to give development consent, the Minister is specifically required to take into account issues of privacy, access to sunlight, noise and parking (cl 11).

SEPP {Housing for Seniors or People with a Disability) 2004

SEPP {Urban Renewal) 20 l 0

[3.550] This SEPP makes the development of housing for seniors and people with a disability, which were prohibited in residential zones by many councils, permissible with consent. This means that councils can still refuse to give consent in individual cases, but an appeal can be taken to the Land and Environment Court, which is not under the same pressures as local councils to reject this kind of development.

[3.570] The Urban Renewal SEPP aims to integrate land use planning with existing or planned infrastructure to create revitalised local communities, and to increase access to public transport, housing and employment options ("transit oriented development"). The SEPP was intended to contribute to the implementation of the now superceded Metropolitan Plan for Sydney 2036, which required 70% of population growth to be accommodated in existing areas.

The SEPP amends all other EPis to permit housing for seniors or people with a disability in zones where houses, flats, hospitals and special uses are permitted in urban areas. It also permits

The SEPP provides for the Minister to nominate potential precincts for renewal on a map within the SEPP. The precinct is then investigated, after which a new statutory framework (SEPP,

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LEP or DCP) can be introduced to facilitate this. Newcastle CBD, the Redfern-Waterloo area and the Granville Town Centre were the first three precincts identified for renewal under the SEPP.

Inconsistency between instruments [3.580] LEPs are generally subject to the provisions of relevant SEPPs. If there is an inconsistency between EPis there is a general presumption that a SEPP prevails over an LEP made before or after that SEPP (s 36(1)(a)). If the EPis are of the same kind, the general legal rules as to when one piece of legislation prevails over another will apply (s 36(1)(6)). It is not always easy to determine whether the EPis are inconsistent. See Hastings Point Progress Association v Tweed SC (2009) 168 LGERA 99.

In practice, SEPPs usually have specific clauses dealing with their relationship with other EPis (both LEPs and sometimes other SEPPs). Generally, SEPPs will provide that if there is an inconsistency the SEPP prevails over an LEP. A SEPP and an LEP may apply concurrently (see Mete v Warringah Council (2004) 133 LGERA420).

How SEPPs are made [3.590] SEPPs are made by the Governor on the recommendation of the Minister. Other than the provision in section 37(2) that an EPI may be made by the Governor "with respect to any matter that, in the opinion of the Minister, is of State or regional environmental planning significance", the EPA Act provides very few limits on the power to make SEPPs.

Section 38 provides that, before the making of any EPI by the Governor, the Minister is "to take such steps, if any, as the Minister considers appropriate or necessary" to publicise an explanation of the intended effect of the proposed SEPP, and to seek and consider submissions from the public on the matter. However, if the Secretary is of the opinion that critical habitat or threatened species populations or communities or their habitats may be adversely affected, the Department of Environment, Climate Change and Water must be consulted (s 34A). Prior to amendments made in 2008, the Act provided more guidance, including provisions for the Secretary to prepare draft SEPPs and submit these to the Minister, and discretionary provisions for consultation with other public authorities and Ministers. These were discretionary provisions and, even before the introduction of the 2008 amendments, the courts confirmed that the power to make a SEPP is extremely wide.

Case study: Consultation requirements in the making of a SEPP [3.600] Provisions relating to consultation in the making of SEPPs were considered by the Court of Appeal in Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. Under (the now repealed) section 39(2), the EPA Act provided for the Minister to "take such steps, if any, as he considers

[3.620]

chapter 3 Land use planning

appropriate or necessary to publicise a draft SEPP and to seek and consider submissions from the public before he makes such a recommendation". Rosemount, the owner of vineyards in the Hunter Valley near the proposed Bengalla open cut coal mine, sought to challenge the making of SEPP 45 - Permissibility of Mining on the grounds that the Minister had consulted only with the Departments of Mineral Resources and State Development. The court found that the words "if any" made it clear that the discretion as to who to consult was unrestricted.

Challenging the validity of plans [3.610] Under section 123 of the EPAAct, anyone may bring proceedings to remedy or restrain a breach of the Act. The Land and Environment Court has jurisdiction to hear and determine challenges to the validity of an EPI in Class 4 of its jurisdiction. If any mandatory steps in the making of a LEP or SEPP have not been complied with, this would amount to a breach of the Act, and legal proceedings could be commenced to obtain a declaration that the relevant EPI is invalid.

There is a time limit privative clause (see [3.620]): the validity of an EPI may not be questioned in any legal proceedings unless they are commenced within three months of the date of publication of the EPI on the NSW legislation website (s 35). In some exceptional cases, proceedings can be brought after the three month period. In this regard there is a long line of cases. These are considered and referred to in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 136 LGERA 288. See also [13.450].

Case study: Privative clauses and the making of an LEP [3.620] In Bryan v Lane Cove Council (2007) 158 LGERA 390 the council had

exhibited a draft LEP which had the effect of suspending all private restrictive covenants (see [2.30]) throughout the local government area. The council then amended the draft to apply only to one property (adjacent to the applicant's in the proceedings) and the LEP in that amended form was made. The applicant challenged the validity of the LEP. The court application was one day outside the three month limit under section 35 of the EPA Act. Jagot J held that the differences in the amendments were of such significance that the plan as made was not within the power to alter or amend. It was a different plan and accordingly was never exhibited as required by the provisions of the Act as they then stood. This involved a breach of an essential, imperative or inviolable restraint and so section 35 did not operate to prevent the court action. The LEP was declared invalid.

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Challenges to LEPs [3.630] The grounds for challenging LEPs for procedural failures in their preparation have been reduced over time, as the EPA Act has been amended to reduce the number of steps required to make an LEP, putting requirements in guidelines rather than the Act and Regulation, and to make the steps discretionary rather than mandatory.

•

[3.670]

redevelopment of the Moore Park Showground for film and television studios and film-related entertainment facilities. Prior to the election, the previous Fahey Government had announced that the future use of the Showground site would be considered by a REP and established a REP Committee for consultative purposes. The Court rejected claims that the REP Committee had a legitimate expectation for consultation.

Case study: State or regional environmental planning significance

Other grounds for legal challenge are specifically excluded. For example: A failure to comply with a requirement of a Gateway determination does not prevent the instrument from being made or invalidate the instrument once it is made. However, if a discretionary decision is made to require community consultation, the LEP is not to be made unless the community has been given the opportunity to make submissions and the submissions have been considered under that section (s 56(8)).

[3.660] In IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62, the Land and Environment Court rejected a challenge to the Minister's decision that SEPP 1 dealt with matters of State environmental planning significance. Even though its administration operated on a local level, the principles embodied in the SEPP were of State significance. According to the Court, the aim of the policy was "to temper uniformity with flexibility". Rigid application of development standards would not lead to "the promotion and co-ordination of the orderly and economic use and development of land", which is one of the objects of the Act (s 5(a)(ii)). See also Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA306.

• An LEP or planning proposal cannot in any court proceedings be challenged, reviewed,

called into question, or be prevented from being made on the basis of anything in a section 117 direction (s 117(5) ).

Case study: Misleading public notice [3.640] In Canterbury District v Canterbury Municipal Council (1991) 73 LGRA 317, Justice Stein held that the notice given by the council of the public exhibition of an LEP was misleading and the LEP was therefore invalid. The notice referred to a specific type of development to be carried out following the making of the LEP, whereas the LEP actually would have allowed a broader range of development. The courts have insisted on strict compliance with the procedural aspects of public exhibition, and where public notice has been given in a form that takes away the right of the public to participate, or makes participation incomplete, the courts have declared the resulting LEP invalid. See also Homeworld Ballina Pty Ltd v Ballina SC (2010) 172 LGERA 211.

Challenges to SEPPs [3.650] A number of challenges have been made to SEPPs and REPs on both procedural and substantive grounds. Several have argued, unsuccessfully, that SEPPs have been made on matters that are not properly of state or regional environmental planning significance. See IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62; Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306. Other challenges have argued, also unsuccessfully, that the Minister is under an obligation to publicise a draft SEPP. See Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Darling Harbour Casino Ltd v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186; Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. In Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1996) 92 LGERA 275, the Court of Appeal rejected a challenge to SEPP 47 - Moore Park Showground based on procedural fairness. SEPP 47 was made by the new Carr Government to facilitate the

chapter 3 Land use planning

Development control plans and council policies Developm ent control plans [3.670] Development control plans (DCPs) are made primarily to provide guidance on giving effect to the aims of any relevant EPI, facilitating development that is permissible under any such instrument, and achieving the objectives of zones under any such instrument (s 74BA). A council or, if applicable, the Secretary, can also make a DCP for the purposes of (s 74C(l)):

•

identifying development as advertised development

• requiring additional notification or advertising for certain types of development • providing for •

or excluding advertising or notification of a request for review of a determination of a development application or an application for modification of a development consent

specifying criteria that the council is to consider in determining whether to make one of the orders provided for under Division 2A of Part 6.

In practice, DCPs generally cover matters such as foreshore development, car parking, landscaping, guideline development controls, heritage conservation areas, and advertising and notification policy. Generally, only one DCP made by the same planning authority may apply in respect of the same land (s 74C(2)) .

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[3.680]

Legal status of DCPs [3.680) Unlike EPis, provisions in DCPs are not legally binding on decision-makers who are

considering applications for development consent. They are simply factors to be taken into consideration before a decision is reached. Amendments in 2013 confirmed the non-binding status of DCPs. Previously, councils and the Land and Environment Court had often treated DCPs as a fundamental element in decisionmaking (see Zhang v Canterbury City Council (2001) 115 LGERA 373; Notaras v Waverley CC (2007)161 LGERA 230; Andrews v Botany Bay CC (2008) 158 LGERA 451; Botany Bay City Council v Premier Customs Services Pty Ltd (2009) 172 LGERA 338). The EPA Act now provides that consent authorities determining applications for development consent are to be flexible in applying the provisions of the DCP, and to allow reasonable alternative solutions that achieve the objects of those standards for relevant aspects of the development (s 79C(3A)). A DCP has no effect to the extent that it is inconsistent with an EPI applying to the same land or prevents compliance with an EPI (s 74C(5)) .

If an EPI requires a DCP to be prepared before any particular development or kind of development may be carried out, the owners of the land (or a percentage of them) to which this applies may prepare and submit the DCP to the planning authority. If the planning authority refuses or fails to make the DCP within 60 days, the application for development consent can proceed without the DCP or the Minister may act in place of the planning authority to make a DCP if authorised by the relevant EPI (s 74D)).

Making DCPs [3.690) The making of DCPs is prescribed in the Regulation, under section 74E. Development control plans relating to LEPs are made by councils, without any involvement by the State government. However, the Minister can direct a council to make, amend or revoke a DCP and if the Council fails to act the Minister can carry out the direction and is not subject to the Regulation in so doing (s 74F). The Regulation sets out the following steps:

1

A draft plan is prepared by council (cl 18). The plan must be in the form of a written statement, and may include other materials such as maps, diagrams, illustrations. The plan must describe the land to which it applies and identify any applicable EPis.

2

Public notice is given, the draft plan exhibited for at least 28 days and submissions invited (cl 18). Anyone may make written submissions during the submission period (cl 20) .

3

If it relates to residential development, the draft is referred for comments to the design review panel (if any) under SEPP 65 (cl 21A).

4

The draft plan, with any amendments, is approved by council (cl 21) .

5

The plan comes into force after public notice of its approval (cl 21(4)).

Council codes and policies [3.700) Council codes and policies deal with similar matters as DCPs, but they are not made in accordance with the procedural requirements necessary for making a DCP. A code that has been

[3.710]

chapte r 3 Land use planning

made in accordance with these procedural requirements is in fact a DCP. Council codes and policies have no official status under the EPA Act, although they may be taken into account when a decision about development is being made.

Identifying the relevant planning controls Planning certificates [3.710) Under section 149 of the EPA Act, a person can apply for a certificate spelling out the planning controls applicable to development on any piece of land in the council area. Anybody not just those who are interested in purchasing the land - can make such an application. The basic fee is $53 (cl 259). Councils will usually answer oral enquiries, but written application for a certificate is necessary to obtain reliable information.

Schedule 4 of the Regulation specifies matters that must be included in the certificate. These matters change from time to time, at the time of writing they include:

• all EPis, DCPs and proposed EPis (where those proposed EPis are or have been the subject of community consultation or placed on exhibition) applying to the land • zones applying to the land, including applicable categories of development, any development

standards fixing minimum land dimensions for a dwelling, and whether the land includes critical habitat, a conservation area or heritage item

• zoning and land use under SEPP (Sydney Region Growth Centre) 2006, if applicable • whether and to what extent complying development may be carried out • whether the concurrence provisions of the Coastal Protection Act 1979 have been applied to the land (see [14.710]) (to the extent Council has been notified) • in relation to coastal councils, certain information in relation to emergency coastal

protection works and other information under the Coastal Protection Act 1979, and whether an owner has consented to annual charges for coastal protection services under the Local Government Act 1993.

• whether or not the land has been proclaimed to be a mine subsidence district (see [18.720]) • whether the land is affected by certain proposals for road widening or realignment • whether there is a policy adopted by council or other public authority (and notified to

council) restricting the development of the land because of the likelihood of land slip, bushfire, tidal inundation, subsidence, acid sulfate soils or any other risk (other than flooding)

• whether development on the land is subject to flood related development controls • whether any EPI (or proposed EPI) provides for the acquisition of the land by a public authority • the name of each contributions plan applying to the land (see [5.1990]) • if the land is biodiversity certified land (see [12.1240]) • if a biobanking agreement, of which Council has been notified, relates to the land (see [12.1200]) • a statement of whether or not the land is bushfire-prone land

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• whether a property vegetation plan under the Native Vegetation Act 2003 applies (if the council has been notified) • whether an order under the Trees (Disputes Between Neighbours) Act 2006 has been made regarding the land (if the Council has been notified) • whether a Part 3A direction applies to the land (see [5.2680]) • if SEPP (Housing for Seniors and People with a Disability) 2004 applies and if so whether a current site compatibility certificate (Seniors Housing) applies, with conditions (see above, [3.550])

• whether a site compatibility certificate (infrastructure) under SEPP (Infrastructure) 2007 applies • whether a valid site compatibility certificate under SEPP (Affordable Rental Housing 2009) applies (if Council is aware), and conditions • the name of any development plan adopted that applies to the land or that is proposed to be subject to a consent ballot • a statement of whether there is a current site verification certificate, of which council is

aware, including matters as required under the SEPP (Mining, Petroleum Production and Extractive Industries) 2007 and the Contaminated Land Management Act 1997 (see Chapter 9).

What the certificate will not show [3.720] The certificate will not set out all the terms of the EPis that apply. For example, it does not show development standards. If there is a development proposed for a parcel of land, it is usually necessary to research thoroughly all of the terms of the LEPs and other planning instruments that apply to the land. The LEP may not be in a consolidated form, and care must be taken to ensure that all amendments have been taken into account.

Obtaining further information [3. 730] It is also possible to apply for a certificate that contains information additional to that in a basic section 149 certificate. An application may be made under section 149(5), which might reveal information about matters affecting the land in addition to those specified in Schedule 4. A further fee (currently $80) is payable.

Liability of councils [3.740] Councils must include the information referred to above in Schedule 4 of the Regulation in a planning certificate, and are liable to pay damages if they negligently provide inaccurate information. This includes being liable to those who rely on a planning certificate attached to a contract of sale when purchasing property, as well as those who lend money in reliance on a certificate. A council cannot exclude liability by a unilateral disclaimer (see Burke v Forbes Shire Council (1987) 63 LGRA 1).

Any advice on other matters affecting the land in response to an application under section 14 9 (5) should be carefully cross-checked because a council has protection against legal

[3.750]

chapter 3 Land use planning

liability for negligence in respect of this additional information, provided that it has acted in good faith (s 149(6)). "Good faith" in this context means that the council has made a real attempt to answer the request for information at least by referring to the materials available to the council (see Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993) 116 ALR 460).

Finding copies of EPis [3.750] An EPI must be published on the NSW legislation website (http:// www.legislation.nsw.gov.au/maintop/scanact/inforce/NONE/O) (s 34(5)). However, the maps that accompany the text will often be excluded.

The Act also provides that copies of all EPis must be available for public inspection without charge at the Department (s 34(6)), and that copies of all applicable EPis must be available for public inspection without charge at the office of the council (s 34(8)). Copies of relevant EPis will often also be available for inspection at the council library. Most councils will also make relevant LEPs, planning proposal draft LEPs and DCPs available for download on their website. The Department's planning "hub" contains a number of online tools to assist in understanding the various planning controls. This includes:

• The Planning Viewer, a Google-map style interface through which the planning controls

applicable to individual land parcels can be identified. This includes matters such as: acid sulfate soils, airport noise, environmental conservation area, dwelling density, floor space ratio, foreshore building line, gross floor area, groundwater, building height, heritage, industrial release area, zoning, land reservation acquisition, land reclassification, landslide risk land, lot size, mineral resource land, native vegetation protection, precinct and growth area boundaries, salinity, SSD, transport and arterial road infrastructure, urban release area and wetlands.

• A link to the Electronic Housing Code website, which enables users to determine whether

proposed buildings or renovations require a complying development certificate or are exempt, as well as generating reports, lodging and tracking applications for complying development certificates.

• A link to the BASIX website, with information about obtaining BASIX certificates. • The Interactive Buildings tool for exempt development, providing access to interactive

models of residential, commercial and industrial buildings which allow users to establish the changes that can be made to a property without the need for further planning or building approvals.

• Local Insights, a range of published information about every suburb intended to assist in making decisions about moving or investing in an area.

• The Local Development Performance Monitor, with statistics on a range of indicators relevant to development applications and complying development certificates.

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So what controls apply? [3.760] The starting point is usually the section 149 certificate (see above). Then the zoning under the EPI should be considered, then the rest of the EPI and any other EPis, DCPs and/or draft EPis. These documents constitute the basic legal planning framework within which the council is obliged to operate under the EPA Act in considering any development application.

• • • • • • • •

In examining the relevant LEP, pertinent questions might be: How is the land zoned? Consider land use tables and any relevant definitions. Are there any development standards that apply? Consider clauses setting standards such as floor space ratio, height controls etc.

4 Crown land and protected areas

Is the land in any special area, such as a heritage conservation area or one affected by acid sulfate soil? Are there any other clauses that apply to development on the land? Is the development by or for a public authority or is it major infrastructure? There may be exceptions to the zoning and to other provisions in the LEP because of a special clause and schedule in the LEP (see [3.120]) or because of the application of a SEPP such as SEPP (Infrastructure) 2007 (see [3.470]). Do any EPis apart from the LEP apply? There may be relevant SEPPs. Are there more detailed provisions in a DCP applicable to the development? Is the development "State significant development", "State significant infrastructure" or "critical State significant infrastructure"?

Louise

Byrne

Barrister Frederick Jordan Chambers

Assessment and disposal of Crown land in NSW ..................................................................................... [4.30] Dedication and reservation .................................................................................................................................. [4.1 OD] Development in reserved areas ........................................................................................................................ [4.320] Management plans .................................................................................................................................................. [4.490] Commonwealth protected areas ...................................................................................................................... [4.61 OJ

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[4.10]

Crown Lands Legislation White Paper [4.10] In 2012, the NSW Government commenced a comprehensive review into the management of Crown land. The Crown Lands Legislation White Paper proposes one new consolidating piece of legislation that will replace eight existing Acts, the Crown Lands Act 1989, the Crown Lands (Continued Tenures) Act 1989, the Western Lands Act 1901 and some lesser known Acts such as the Commons Management Act 1989. Submissions closed on 20 June 2014 but legislative implementation of the recommendations has not yet occurred at the time of writing (September 2015). National parks and state forests are excluded from the Crown lands management rewrite but changes to the National Parks and Wildlife Act 1974 (NSW) are also mooted. The commentary in this Chapter remains current law until proposed new Acts are promulgated.

For further details and links to the White Paper see: http://www.lpma.nsw.gov.au/crown_lands/comprehensive_review_of_nsw_crown_land_ management. [4.20] A significant amount of land in NSW is what is generally known as public land, not private land. Most of this is Crown land, which is ultimately controlled by the State Government. This includes:

• • •

Crown land that has not been allocated to particular uses Crown land leased to individuals and companies for a range of purposes, including grazing and agriculture land that has been dedicated or reserved, including National Parks and State forests.

The recognition by the High Court in Mabo v Queensland (1992) 175 CLR 1; [1992] HCA 23 that native title existed at the time of European settlement means that the Crown did not acquire full beneficial title to the land. Native title rights may still exist where the claimants can show a continuing connection with the land. This is discussed fully in Chapter 20. Local Councils own land, and have care, control and management of other land. Where the land that they manage is Crown land, the relevant legal provisions are dealt with in this Chapter. Otherwise, council land is managed under the Local Government Act 1993 as operational or community land. The relevant legislation is discussed in Chapter 8.

[4.50]

chapter 4 Crown land and protected areas

The Minister for Primary Industries is the Minister generally responsible for the Crown Lands Act 1989. The Lands portfolio is administered by the Department of Primary Industries - Lands.

Principles of Crown land management [4.40] The legislation spells out a number of principles of Crown land management (Crown

Lands Act 1989, s 11):

• that environmental protection principles be observed in relation to management and administration • that natural resources (including water, soil, flora, fauna and scenic quality) be conserved wherever possible • that public use and enjoyment of appropriate areas be encouraged • that multiple use be encouraged where appropriate • that, where appropriate, the land and its resources be used and managed in such a way that they are sustained in perpetuity • that land be dealt with in the best interests of the State consistent with these principles. Although at first sight these principles appear to be oriented towards environmental protection, the law only requires that they be taken into account in making decisions about Crown land, not that they be given any particular weight (see [2.440]). One of the declared objects of the legislation is to provide for the proper development and conservation of Crown land, having regard to these principles (s lO(c)). Apart from this, the principles are heavily qualified by the phrases "wherever possible" and "where appropriate". They certainly do not create any presumption against development or in favour of conservation. The general position is that Crown land cannot be sold, leased, licensed, dedicated or reserved until it is first assessed (ss 35(1), 85(1), 91(1)). However, the Minister can waive the requirement for assessment if satisfied that this is in the public interest, provided that due regard is paid to the principles outlined above (ss 35(2), 85(2), 91(2)(6)). Land to be reserved from sale or for future public requirements does not have to be assessed (s 91(2)(a)).

Assessment of public lands

Assessment and disposal of Crown land in NSW [4.30] The Crown Lands Act 1989 (NSW), provides for a procedure for the assessment of Crown land to identify appropriate uses before there is any decision to sell or lease it to private interests. The provisions do not apply to land in the Western Division of NSW (Western Lands Act 1901, s 2A and Schedule B). This procedure is, in essence, a system of strategic planning, and has a vital bearing on the uses to which land may be put.

Additional land-use restrictions may be placed on Crown land by zoning and other provisions of environmental planning instruments (EPls) made under the Environmental Planning and Assessment Act 1979 (see Chapter 3 ).

[4.50] The first step in the assessment process is the preparation of an inventory of existing Crown land, containing details of physical characteristics and' other matters affecting the land (Crown Lands Act 1989, ss 30, 31).

This is followed by an assessment to determine the land's capabilities for such purposes as environmental protection, nature conservation, forestry, tourism, recreation, agriculture, industry or mining, taking into account issues such as flora and fauna and the land's susceptibility to hazards and degradation (s 32; Pt 3 Crown Lands Regulation 2006). The final step is the identification of suitable uses and, where practicable, preferred uses of the land, taking into account (s 33 ):

• the particulars in the inventory • the assessment

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• • • • • • •

[4.60]

the views of any government bodies that have expressed an interest in the land the principles of Crown land management any policies relating to the land approved by the Minister. Policies approved by the Minister include:

Food and Beverage Outlets on Crown Reserves Policy 2004 Domestic Waterfront Facility Policy 2009 Fire Protection Policy for Caravan Parks on Crown Reserves and Leasehold Land 2005 The Use of Crown Reserves for Operating Caravan Parks and Camping Grounds 2010 (Source: http://www.lpma.nsw.gov.au/crown_lands/assessments.]

Information and public participation [4.60] The Minister must arrange for notice of the preparation of draft land assessments to be advertised and placed on exhibition for public comment. Proposals must be advertised if they involve sales (including conversions from leasehold to freehold) and leases exceeding five years (s 34(3)), but this advertisement might only be in a local newspaper.

Sole or lease for uses not preferred or suitable [4.70] What is the position where land is sold or leased for purposes that are not in line with the preferred uses, or even those uses identified as suitable? The implication is that the proposed use must at least be suitable, but the Minister is not bound by anything in the legislation to this effect. In the case of an outright sale, there is nothing that requires the attachment of conditions guaranteeing that the use will not be changed. There is a very broad discretion when it comes to dealings with the land (s 34).

Conditions on sale or lease of land (4.80] The Minister has the power to control the future use of land that is sold or leased by attaching conditions (ss 36, 37) such as a condition of sale prohibiting a change of use. Leases can theoretically be forfeited for breach of condition (s 129). The Minister can also create an easement for public access over dedicated Crown land, Crown land that is to be sold and, with the consent of the lessee, Crown land held under lease (ss 56, 57) .

Certain activities are prohibited on easements for public access. These include (Crown Lands Act, s 57(1); Crown Lands Regulation, cl 22):

• campmg • lighting fires • damaging or injuring flora or fauna • setting traps.

Converting leasehold to freehold [4.90] Under Schedules 7 and 7 A of the Crown Lands (Continued Tenures) Act 1989, the general position is that the Minister must grant conversion to freehold title to any applicant who

[4.100]

chapter 4 Crown land and protected areas

holds a perpetual or term lease (other than a special lease). In most cases, the land can be purchased at a minimal cost because the price was set when the lease was first granted, between 20 and 100 years ago. There seems to be an assumption that, after the land has been converted to freehold, most environmental protection issues can be satisfactorily dealt with through the environmental planning system (see Chapters 3, 5). This ignores the crucial planning role that the Crown lands legislation can play. There are certain exceptions that allow land to be retained in Crown ownership for conservation purposes. This extends to situations where (Crown Lands (Continued Tenures) Act 1989, Schedule 7, Part 1, ell 2 - 3):

• the land is required for forestry • part of the land is needed for public purposes, or • land is reserved from sale (in the case of certain leases). Dedication and reservation

[4.100] One possible outcome of the assessment process discussed above is that land is retained in Crown ownership and set aside for special purposes. This is a form of strategic planning. Its effect is that restrictions are placed on the type of development that can be carried out.

Under the Crown Lands Act 1989, Crown land throughout NSW (Western Lands Act 1901, s 2A and Schedule B) can be dedicated (s 80) or reserved (s 87) for any "public purpose", or reserved for future public requirements, although this does not prevent it from being sold or leased by the reserve trust with the consent of the Minister (ss 102,103). The Minister determines precisely what constitutes a public purpose by notice in the Gazette (s 3). Some examples of public purposes are:

• public recreation • preservation of native flora and fauna • environmental protection • soil conservation.

The reserve trust is usually a local council. The special provisions relating to public land owned or managed by local councils (community land and operational land), discussed in Chapter 8 ((8.180]), do not apply to Crown land under council care and control. Alternatively, Crown land can simply be reserved from sale, lease or licence (Crown Lands Act 1989, s 87). Crown land, with certain exceptions, can be dedicated or reserved for particular purposes under the following legislation:

• the National Parks and Wildlife Act 1974 • the Forestry Act 2012 • the Marine Estate Management Act 2014.

Under the National Parks and Wildlife Act 1974 (NSW) (s 30A), land can be reserved as: a National Park (s 33)

• • a historic site: (s 30F)

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[4.110]

• a State conservation area (ss 30G, 47B) • a regional park (ss 30H, 470) • a nature reserve (ss 30], 49) • a karst conservation reserve (ss 301, 58K) • an Aboriginal area (ss 30K, 62). Under the Marine Estate Management Act 2014 (s 23 ), an area of Crown land may be declared a marine park with the consent of the Minister for the Environment and the Minister for Primary Industries (see [19.860)). Finally, there are some areas of Crown land that are not formally dedicated or reserved for particular purposes but have, nevertheless, been declared by proclamation in the Gazette to fall into a special category.

•

This is the position with: Crown land declared under the National Parks and Wildlife Act 1974 to be:

• an

- a protected archaeological area (s 65) - a wildlife refuge (s 68) - an Aboriginal place (s 84)

aquatic reserve (Marine Estate Management Act 2014, s 34; see Chapter 19, paras 19.820 -19.850).

Land reserved as a National Park, historic site, Aboriginal area, nature reserve, karst conservation reserve, regional park and State conservation area can consist of Crown lands, lands owned by the Crown, land in respect of which the National Parks and Wildlife Reserve Trust is appointed trustee, Crown lands reserved under the Crown Lands Act 1989, and land especially acquired for the purpose (National Parks and Wildlife Act 1974, s 30B).

[4.140]

chapter 4 Crown land and protected areas

Other categories of Crown land can be reserved for protective and conservation purposes (National Parks and Wildlife Act 1974, s 30A). !fi!toric sites are "areas associated with a person, event or historical theme, or containing a burldmg, place, feature or landscape of cultural significance" (s 30F(l)).

Land c~n also be reserved as a State conservation area if it contains "significant or representative ecosystems, landforms or natural phenomena or places of cultural significance" and is "capable of ~roviding opportunities for sustainable visitor use and enjoyment", provided it can be managed m accordance with the principles spelled out in the Act, including the conservation of biodiversity (s 30G). Regional parks are areas of natural or modified landscape that are suitable for public recreation and enjoyment (s 30H).

_Sta~e conservation areas and regional parks do not have conservation as their primary obJe~tive but se_ek to balance co~servation with other objectives. They are essentially designed to provide recreational opportumties, but the use should be "sustainable" and be compatible with the "natural and cultural values" of the area (ss 30G, 30H).

Land connected with Aboriginal people [4.120] Land can be dedicated as an Aboriginal area to "identify, protect and conserve" areas "of natural_or cultural _si~nificance to Aboriginal people" or "of importance to improving public understandmg of Abongmal culture and its development and transitions" (s 30K(l)).

. ~b_original ?laces are places declared by the Minister for the Environment to be of "special sigmficance with respect to Aboriginal culture" (s 84) (see [20.730)).

Korst conse111otion areas [4.130] Karst environment is defined as (s 5):

Protected areas [4.110] At January 2012, the New South Wales terrestrial reserve system covered 7.1 million hectares or 8.8% of the State. Since the beginning of 2009, the reserve system has grown by 380,247 ha, an increase of 5.7%. The system of marine protected areas covers 345,100 hectares or approximately 34% of NSW waters and most marine bioregions are well-represented (NSW State of the Environment Report 2012, NSW EPA, page 236).

National Parks are described as areas containing outstanding or representative ecosystems, natural or cultural features or landscapes or phenomena that provide opportunities for public appreciation and inspiration and sustainable visitor use and enjoyment (National Parks and Wildlife Act 1974, s 30E(l)). Nature reserves are areas containing "outstanding, unique or representative ecosystems, species, communities or natural phenomena" (s 30J(l)). Nature reserves must be managed in accordance with certain principles including "the conservation of biodiversity, the maintenance of ecosystem function, the protection of geological and geomorphological features and natural phenomena" (s 30J(2)(a)). Flora reserves are areas of Crown land or parts of State forests designed to preserve native flora (Forestry Act 2012 s 16).

an area of land, including subte_rranean land, that has developed in soluble rock through the processes of solut10n, abras10n or collapse, together with its associated bedrock soil water, gases and biodiversity. ' ' Karst conservation reserves are areas, including subterranean land, "containing outstanding or ~epresentative examples of karst landforms and natural phenomena" (s 301(1)). Examples mclude the Abercrombie, Borenore, Wombeyan, Timor and Jenolan karst conservation reserves. One of the principles governing the management of a karst conservation reserve is "the conserva~ion of the karst environment, including the protection of catchment values, such as hydrological processes and water quality" (s 30I(2)(a)).

For a detailed analysis of karst environment and the biota it supports see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010) NSWLEC 48, at [139] and following (discussed in Chapter 1, [1.230]). ,

Wildlife refuges [4.140] Wildlife refuges can be created over unoccupied and occupied Crown land, privately owned land and land in a State forest, but not without the consent of the owners and occupiers (s 68(3)). One aim of such a dedication is to preserve, conserve, propagate and study wildlife (s 68(2)(a)).

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[4.150)

Aquatic reserves and marine porks (4.150] Aquatic reserves may be declared under the Marine Estate Management Act 2014 (s 34) in order to conserve the biodiversity of fish and marine vegetation. Marine parks may be declared under the Marine Estate Management Act 2014, s 23 in order to:

• conserve marine biological diversity and marine habitats • maintain ecological processes, and • where consistent with these objectives, provide for ecologically sustainable use of fish and

marine vegetation and to provide opportunities for public appreciation, understanding and enjoyment. See Chapter 19, [19.820) - [19.900).

Wild rivers [4.160] The Chief Executive of the NSW Office of Environment and Heritage (of which the National Parks and Wildlife Service is a part) may declare any river or part of a river within lands reserved under the National Parks and Wildlife Act 1974 to be a wild river (s 61). The purpose is to protect and conserve any watercourse or water body that has substantially natural flow and is in a near-pristine condition in terms of animal and plant life.

In 2009-11 Oxley Wild Rivers National Park was added to the existing wild rivers of: Upper Brogo, Forbes and Upper Hastings, Kowmung, Colo, and Grose rivers, and Washpool Creek.

[4.190)

• Aboriginal areas • wild rivers • protected archaeological areas • wildlife refuges • State forests • flora reserves • special management zones within state forests • marine parks • reserves under section 87 of the Crown Lands Act 1989. The declaration is subject to consent from the relevant Minister, or owner or occupier, in the case of:

• Aboriginal areas • protected archaeological areas • wildlife refuges • flora reserves

Dedications of Crown land for a public purpose under section 80 of the Crown Lands Act 1989 must be laid before both Houses of Parliament, but this is only for the purpose of giving information (Crown Lands Act 1989, s 82).

Timber areas

Parliamentary veto

(4.170] The Forestry Corporation of NSW, a stated owned corporation, manages just under 2 million hectares of native forests and half a million hectares of forest plantations under the Forestry Act 2012 (http://www.forestrycorporation.com.au).

[4.190] The procedure is more complicated in the case of:

• •

Under the Forestry Act 2012, Crown land can be: dedicated as a State forest (s 14), or a flora reserve (s 16) declared to be a special management zone within a State forest if the Minister is satisfied the area has special conservation value (s 18(1)). For a detailed discussion, see [13.140).

The process of dedication and reservation [4.180] Members of the public have no formal role to play in the .procedure leading up to dedication or reservation, although they can put informal pressure on their political representatives or the Chief Executive of the Office of Environment and Heritage. Under the National Parks and Wildlife Act 1974 (s 7), the Chief Executive has a general role to play in considering and investigating proposals for reservations and dedications.

In some cases, the formal procedure begins and ends with a notice in the Gazette (National Parks and Wildlife Act 1974, ss 30A, 61, 68; Forestry Act 2012, ss 14(1), 16(1), 18(1); Crown Lands Act 1989, s 87). This applies to:

chapter 4 Crown land and protected areas

• National Parks • historic sites • nature reserves • karst conservation reserves • State conservation areas • regional parks.

The proclamation of the reservation must be laid before each House of Parliament and ceases to have effect if rejected by either house within a limited period (National Parks and Wildlife Act 1974, ss 35, 47D, 47R, 58, 58S). The concurrence of certain Ministers must also be obtained (ss 30C, 30D) before an area can be reserved as:

• a National Park • a historic site • a State conservation area • a regional park • a karst conservation area • a nature reserve • an Aboriginal area.

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[4.200]

Revoking a dedication or reservation Role of Parliament (4.200] It is more difficult to revoke a dedication or reservation. This can ordinarily only be done by an Act of Parliament for:

• National Parks (National Parks and Wildlife Act 1974, s 37(1)) • historic sites (National Parks and Wildlife Act 1974, s 37(1)) • nature reserves (National Parks and Wildlife Act 1974, s 52(1)) • karst conservation reserves (National Parks and Wildlife Act 1974, s 58M(l)) • marine parks (Marine Estate Management Act 2014, s 25) • flora reserves (Forestry Act 2012, s 16(4)) • regional parks (National Parks and Wildlife Act 1974, s 47ZB)

With State forests, there normally has to be a resolution by both Houses of Parliament that the revocation should go ahead before the Governor can notify it in the Gazette (Forestry Act 2012, s 15). Dedications under the Crown Lands Act 1989, dedications of aquatic reserves and reservations of State conservation areas cannot be revoked if either House of Parliament, after being notified, passes a resolution rejecting the proposed revocation (Crown Lands Act 1989, s 84; Marine Estate Management Act 2014, s 38; National Parks and Wildlife Act 1974, s 47L).

Revocation by notice in the Gazette (4.210] Reservations under the Crown Lands Act 1989 can be revoked by the Minister for Primary Industries simply putting a notice in the Gazette, after the intention to revoke has been advertised (Crown Lands Act 1989, s 90).

Additions to protected areas (4.220] The NSW Office of Environment and Heritage has a program for acquiring and reserving land in accordance with the NSW National Parks Establishment Plan 2008. This Plan identifies priorities for building the terrestrial park and reserve system in each biogeographic region of NSW over the next 10 years and is based on the CAR (comprehensive, adequate and representative) assessment system of reserves. The NSW Government has adopted national targets for reserving ecosystems which are set out in Australia's Strategy for the National Reserve System 2009 - 2030. (NSW State of the Environment Report 2012, NSW EPA, p 239).The broad framework within which CAR is applied and measured is the Interim Biogeographic Regionalisation for Australia (IBRA) (see OEH website reference below). Significant additions to the reserve system since January 2009 include Toorale National Park and State Conservation Area (85,251 hectares), the Riverina Red Gum Reserves (106,364 ha), South-Western Cypress Reserves (54,387 ha) and further additions to the Brigalow and Nandewar Community Conservation Areas (22,277 ha) (NSW State of the Environment Report 2012, NSW EPA, pp 237 and 248). The NSW National Parks Establishment Plan 2008 has been reframed to provide a strategic approach to expanding the protected area system (see Directions Statement for National Park Establishment at http://www.environment.nsw.gov.au/acquiringland/ whatareourprioritiesinacquiringland.htm).

[4.250]

chapter 4 Crown land and protected areas

The focus is on the following conservation themes:

• connectivity conservation • lands improving reserve design to support the effective and efficient management of the existing reserve system • culturally important landscapes and places • poorly reserved ecosystems and critical habitats • wetlands, floodplains, lakes and rivers • lands within important water catchments • places containing significant geodiversity. Conversion of State forest to National Park (4.230] A State forest cannot be declared a National Park until a certain procedure has been followed. Section 15 of the Forestry Act 2012 provides that, after a resolution has been passed by both Houses of Parliament, the Governor may revoke the dedication of a State forest by notice in the Gazette. On revocation, the land becomes Crown land and may then be reserved as a National Park under the National Parks and Wildlife Act 1974 (s 30A).

Regional forest agreements (4.240] The State Government practice of converting substantial areas of State forest to National Park originated in its 1996 forestry reform package. The package is consistent with the National Forest Policy Statement signed by the Commonwealth and all States and Territories in 1992. The National Forest Policy Statement requires joint Commonwealth and State comprehensive regional assessments of the natural, cultural, economic and social values of Australia's forests. Comprehensive regional assessments form the basis for the negotiation between governments of regional forest agreements. One of the aims of these agreements is to establish a forest reserve system that is comprehensive, adequate and representative. As a result, substantial areas of State forest have been converted into National Parks. Regional forest agreements are discussed in Chapter 13, [13.30].

Recognition of aboriginal ownership of protected areas (4.250] A significant innovation in relation to the management of Crown lands in NSW was the enactment of the National Parks and Wildlife Amendment (Aboriginal Ownership) Act 1996, which amended the National Parks and Wildlife Act 1974 by introducing Part 4A, "Aboriginal Land" (see [20.70]). As a result of these amendments, the National Parks and Wildlife Act 1974 provides that land that has already been dedicated or reserved under that Act can be transferred to Aboriginal people in cases where it has cultural significance (ss 71C(2), 71D) . Aboriginal land councils are to hold the land in trust for traditional owners. Although ownership is transferred, there is a mandatory leaseback of the land to the Minister for the Environment for a term of thirty years (s 71AD(1)(b)) . The lease is renewable after negotiation between the parties (s 71AI), but there is a holding-over provision that means the

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[4.310]

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143

-- --------

Minister can allow the lease to continue even after it has expired (s 71AL). The Minister is obliged to pay rent to the Aboriginal owners for the loss of full enjoyment of their land through the leasing arrangement (s 71AE).

Declaring protected areas as wilderness [4.280] Land already reserved or dedicated under the National Parks and Wildlife Act 1974, including National Parks and nature reserves, can simply be declared a wilderness area under the Wilderness Act 1987 (s 8(1A)).

Wilderness areas

Declaring private and Crown land as wilderness

[4.260] The objects of the Wilderness Act 1987 are to provide for the permanent protection of wilderness areas and their proper management, and to promote public education about wilderness (s 3).

[4.290] Private land (including leased Crown land) is declared as wilderness where a conservation agreement has been successfully negotiated with the owner or Crown leaseholder (ss 8(1)(6), 16; see (12.1600]). If the terms offered to owners are not sufficiently attractive to persuade them to enter into what are entirely voluntary agreements, then apart from outright purchase there is no way of protecting the land except temporarily through an interim protection order (see Chapter 12).

Wilderness is defined (s 6) as an area of land (including subterranean land) that:

• has not been substantially modified by humans, or can be restored • is of sufficient size to be capable of being maintained in a substantially unmodified state • is capable of providing opportunities for solitude and appropriate self-reliant recreation. In practice, nearly all declared wilderness is within National Parks and nature reserves, not private land. As at 2014, the total area of wilderness in NSW was over two million hectares, which represents around 30 percent of NSW parks and reserves or 2.6% of NSW (Office of Environment and Heritage, Annual Report 2013 - 2104). Two wilderness additions were declared by the Minister in 2013-14: the Nattai Wilderness addition (11,400 ha, mostly within Warragamba Catchment) and the Goobarragandra Wilderness addition (99 ha near Tumut, to clarify a management boundary). Declared wilderness areas are to be managed in such a way as to protect their unmodified state, preserve the capacity of the area to evolve in the absence of significant human interference and permit opportunities for solitude and appropriate self-reliant recreation whether of a commercial nature or not (s 9). The italicised words were added as a result of a significant amendment to the management principles by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 which came into force on 1 October 2010. This indicates a fundamental shift away from a minimalist low impact form of access to wilderness areas and opens the door for the government to allow commercial use of wilderness. OEH seeks to expand opportunities for public enjoyment and appreciation of wilderness areas. A pilot program is underway to trial horse riding in selected areas (Office of Environment and Heritage, Annual Report 2013 - 2104).

Identifying on oreo os wilderness [4.270] The fact that land has been identified as wilderness does not mean that it is fully protected. Under the legislation, the Director-General of the Environment Department (currently the Chief Executive of the Office of Environment and Heritage) identifies areas which in their opinion satisfy the criteria for wilderness (s 6), including areas needed as buffer zones. Anybody can make written proposals, and the Director-General must assess these within two years and decide whether the areas should be identified (s 7). The practice has been to place assessed nominations on exhibition for public comment, but this is not a requirement of the legislation.

Crown land that has not been leased, and land owned by certain public bodies (including local councils), also depends for long-term protection on an agreement being reached between the Minister for Primary Industries and the particular Minister or public body in control of the land (s 10), such as the Forestry Corporation. These agreements are known as wilderness protection agreements. Nothing in the Act requires the Ministers or public bodies to co-operate. The consent of persons with a property interest in the land must also be obtained (s 10(2)). Agreements can take a form similar to that of conservation agreements (s 12). Before a wilderness protection agreement is concluded, the draft must be placed on public exhibition and any submissions taken into account (s 11). A register of agreements must be open to public inspection (s 14 ).

Breaches of agreements and management plans (4.300] If a conservation agreement is breached, the remedies that can be sought are those ordinarily available for a breach of contract, subject to certain restrictions on damages (National Parks and Wildlife Act 1974, s 69G).

If a wilderness protection agreement is broken, on the other hand, the legislation appears to allow the public body in breach to refer the matter to the Premier to settle the dispute. The Premier may arrange for an inquiry to be held, but does not have to (Wilderness Act 1987, s 21). Anyone can bring proceedings to remedy or restrain a breach of the Act (Wilderness Act 1987, s 27; see also National Parks and Wildlife Act 1974, s 193). This standing provision does not cover breaches of agreements. If, however, a plan of management has been prepared, legal proceedings can be brought to remedy a breach of the plan, as both the Director-General of the Environment Department and those bound by the agreement have a duty to give effect to management plans (Wilderness Act 1987, s 18(7); National Parks and Wildlife Act 1974, s 81(2)). Management plans for wilderness areas protected by conservation agreements are optional (National Parks and Wildlife Act 1974, s 72(1)(e)), but the Director-General must "from time to time" prepare a management plan where a wilderness protection agreement is involved (Wilderness Act 1987, s 17).

Revoking and varying declarations of wilderness [4.31 0] Declarations of wilderness areas based on wilderness protection agreements, and declarations of areas reserved under the National Parks and Wildlife Act 1974, can only be

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[4.320]

[4.370]

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revoked by an Act of Parliament. They can be "varied by a further notification" by publication in the Gazette, but the scope of this power is not clear (Wilderness Act 1987, s 8(3), (4A)).

A regional park may be managed by a regional park trust established for that purpose, or by a local council nominated by the Environment Minister (s 47O(3)(c)).

Wilderness areas based on conservation agreements may be varied or revoked by notification in the Gazette (Wilderness Act 1987, s 8(4)).

National parks, historic sites, nature reserves, State conservation areas, regional parks, and karst conservation areas must only be "dealt with" in accordance with the provisions of the Act (ss 40, 53, 471, 47Z, 58N).

Development in reserved areas

The Director-General of the Environment Department can only arrange to have works carried out if they are related to "the management and maintenance of" a National Park (National Parks and Wildlife Act 1974, s 8(3)) or "the protection and care of fauna and the protection of native plants" (s 8(7)).

(4.320] There are extensive restrictions on the kinds of projects that can be carried out on Crown land set aside for special purposes. Quite apart from the provisions of environmental planning instruments (see Chapter 3) and management plans (see below), public authorities can only carry out projects that are authorised by the legislation under which they were set up.

Reserves under the Crown Lands Act [4.330] The Minister for Primary Industries can grant a lease, licence or permit over a Crown reserve for any "facility or infrastructure", or for any other purpose the Minister thinks fit (s 34A). However before granting the interest, the Minister must (s 34A(2)(c}}: (i)

be satisfied that it is in the public interest to grant the instrument; and

(ii)

have had due regard to the principles of Crown land management.

Where land has been dedicated or reserved for a particular purpose, the use of the land for some other purpose is not authorised: Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (Goomallee Claim) (2012) 84 NSWLR 219; [2012] NSWCA 358, per Basten JA at [37] . Crown reserves within the Crown Lands Act 1989 dedicated for public recreation are commonly under the care, control and management of local councils as a reserve trust: see Part 5 and Division 4. There are restrictions on the grant of leases and licences in respect of Crown reserves under a reserve trust. The Minister's consent is required but may be given generally and can be dispensed with by him or her (ss 102, 102A, 108). For a detailed discussion of public land owned or managed by local councils (community land and operational land), which excludes Crown land under their care and control, see [8.200].

Management of protected areas

However the Director-General is subject to the control and direction of the Minister for the Environment (s 8(10)) and the National Parks and Wildlife Service is to carry out such works and activities as the Minister may direct, either generally or in a particular case (s 12), provided that they are within the objects and purposes of the Act. See National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA 443 in which it was held that the Minister could direct the Director-General to re-open a 4-wheel drive access road through Yuraygir National Park to Shelley Beach. This power includes directing the Service to carry out works for the provision of facilities for sustainable visitor or tourist use (s 12(f) ), as amended by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010, see below).

Mining [4.350] Unless it is expressly authorised by legislation, mining is generally prohibited in areas covered by the National Parks and Wildlife Act 1974 apart from State conservation areas. This is dealt with in detail in Chapter 18, Mining.

Logging (4.360] In theory, the Sydney Water Corporation and the Hunter Water Corporation could permit commercial logging activities in catchment areas that are protected areas within the jurisdiction of the Environment Department, but the Director-General's agreement must first be obtained, and this is to be given only after "the fullest examination" (National Parks and Wildlife Act 1974, ss 185(5), 186). Logging took place under these provisions in Morton National Park, prior to inundation under the Shoalhaven dam scheme.

[4.340] Under the National Parks and Wildlife Act 1974, the Director-General of the Environment Department is given care, control and management of:

Rights of way

The trustees of a State conservation area, once appointed, have care, control and management powers (s 47GA).

[4.370] The National Parks and Wildlife Act 1974 (s 153) allows the Environment Minister, after "the fullest examination" (s 186), to permit pipelines and electricity transmission lines to cross National Parks, historic sites, nature reserves, State conservation areas, regional parks and karst conservation areas (but not Aboriginal areas). Other rights of way can be granted "for any other purpose deemed necessary". The breadth of this provision could conceivably allow the Minister to grant an easement for the construction of a freeway through a National Park, although an alternative way of proceeding would be to revoke part of the National Park reservation (s 37(1)).

• National Parks and historic sites (s 31) • nature reserves (s 49(4)(c)) • Aboriginal areas (s 63) • karst conservation areas (s 58K(4)(c)) • regional parks (s 47O(3)(c)).

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Leases and licences [4.180] The Minister can grant leases or licences for the exclusive use of land, buildings and structures (including the erection of new buildings) for specified purposes in National Parks, historic sites, State conservation areas, regional parks, nature reserves, karst conservation reserves or Aboriginal areas. In doing so, the Minister must give effect to the objects of the Act, and give the matter "the fullest examination" (ss 151(1), (3), 186(1)). Where the erection of a new building or structure is proposed, its general location must be identified in the management plan (s 151A(5)).

Public consultation [4.190] Where the proposal involves a change of land use, the erection of a building/structure or significant modification to an existing building, the Minister must advertise it in appropriate newspapers and take comments into account (s 151F). A public hearing is at the Minister's discretion (s 151F(4)). Some proposals have to be referred to the National Parks and Wildlife Advisory Council (s 151G). A register of leases and licences that have been granted is available at http://www.environment.nsw.gov.au/protectedareas/RegisterOfLeases.htm (s 15 lJ).

Nature reseroes [4.400] So far as nature reserves are concerned, the legislation simply provides that leases and licences can only be granted for a purpose consistent with the management principles (s 151A(2)). These provide that nature reserves must be managed to conserve natural and cultural values, while promoting public enjoyment and understanding of these values (s 30J).

Other protected areas [4.410] In the other categories of protected area, the purposes for which buildings can be provided under leases or licences are spelled out in more detail in section 151A. They include surf life-saving clubs, sporting activities, research facilities, recreational, educational and cultural activities, and, more generally, any other purpose consistent with the relevant management principles provided it is identified in the management plan for the area concerned (s 151A(l)(a)). In ski resort areas, leases and licences can be granted for any development permitted under the applicable environmental planning instrument made under the Environmental Planning and Assessment Act 1979 (s 151A(3)); see generally, Chapter 3).

Sustainable tourism [4.420] As a result of amendments to the Act by the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 which commenced on 1 October 2010, leases and licences can also be granted (other than in nature reserves) for (s 151A(l)(b)(i) - (iv)):

• • •

tourist and visitor accommodation facilities and amenities for visitors and tourists, including restaurants and other food outlets ancillary facilities, including retail outlets and conference facilities, and

[4.440]

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• information centres, restaurants, cafes, kiosks and other food outlets. There is some concern that these tourism amendments have opened the door for commercial uses and alienation of protected areas. They certainly do allow a range of activities based on exclusive commercial use in protected areas. However, the significant constraint on these powers is that leases and licences must give effect to the objects of the Act (s 251(3)). This legislative addition reflects the decision of the Court of Appeal in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710. The Act's objects include that the various types of protected area be managed in accordance with relevant management principles spelled out in the legislation (ss 2A(l)(d)), 30E - 30K). For National Parks, for example, these principles include not only the conservation of natural and cultural values, but also "provision for sustainable visitor or tourist use and enjoyment that is compatible with the conservation of the National Park's natural and cultural values" (s 30E(2)(e); emphasis supplied). Development must be "sustainable" within the principles of ecologically "sustainable development" (s 5(1); see [1.190]). In addition, the Minister, before granting a lease or licence must be satisfied of a number of things, including compatibility with the natural and cultural values of both the particular area and the protected area in the vicinity (s 151B) . Assessment criteria developed by the Director-General of the Environment Department must be considered, along with a special report where a lease is proposed (s 151B).

Adaptive reuse [4.410] Leases and licences can also be granted to facilitate the adaptive reuse (s 5(1)) of an existing building or structure or the use of a modified natural area (an area that has been cleared and cannot be restored) (ss 5(1), 151A(l)(c)).

Case studies: Activities in protected areas [4.440] In Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710 (the Simon University case), a postgraduate school of business administration, situated in existing buildings that were to be restored by the licensee, was held not to be permissible under the legislation as it then existed because it was not an activity that promoted the enjoyment of the park by the public. This was despite the fact that the arrangement would have provided the National Parks and Wildlife Service with much needed funds for the management of the National Park, as well as allowing use of the buildings during half the week by other organisations offering educational services or facilities to the public. Under the 2010 amendments to the Act, a lease of existing buildings for these purposes may now be allowed under the readaptive reuse provisions, provided that "the modification and use are not inconsistent with the conservation of the natural and cultural values of the land" (ss 5(1), 151A(l)(c)). In Blue Mountains Conservation Society Inc v Director General of NPWS (2004) 133 LGERA 406 the Land and Environment Court held that an approval and consent for commercial filming activity and associated activities were invalid. The makers of the Hollywood film Stealth had sought to shoot part of the film in an area

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Environmental planning controls near Mount Hay, which was both a declared wilderness under the Wilderness Act 1987 (the Grose Wilderness) and a National Park under the National Parks and Wildlife Act 1974 (the Blue Mountains National Park). The court held that the production of a commercial feature film was not appropriate public recreation in the context of the objects of the National Parks and Wildlife Act 1974 or in the context of the purpose of reserving land as National Park. In addition, the filming activity did not satisfy any of the management purposes in section 9 of the Wilderness Act 1987. In the court's view, declared wilderness areas were sacrosanct.

In response to the case, the State Government enacted the Filming Approval Act 2004 to allow approval to be given for filming in National Parks, including wilderness areas. The Filming Approval Act 2004 also facilitated filming in marine parks which is permissible with the consent of the Minister under the current Marine Estate Management Act 2014 and Marine Estate Management (Management Rules) Regulation 1999, cl 1.33.

Trades and businesses [4.450) The Director-General can grant licences to carry on trades, businesses or occupations in a National Park, historic site, State conservation area, regional park, nature reserve, karst conservation reserve or Aboriginal area after giving the matter "the fullest examination" (ss 152(1), 186(2)). The Minister can grant a franchise to any person for the sale of goods and services, the provision of public transportation or 7:he supply of other facilities and amenities within these areas (s 152(3)).

Development in wilderness areas [4.460) Where wilderness areas are located in National Parks and nature reserves, the leases or licences normally available under the provisions discussed above cannot be granted (National Parks and Wildlife Act 1974, s 153A). However since the National Parks and Wildlife Amendment (Visitors and Tourists) Act 2010 came into operation, the Minister has the power to grant licences and franchises for trade and businesses in these areas under s 152 (for example, commercial tours). All government departments, public authorities and local councils, whether or not they are parties to a wilderness protection agreement, must obtain the consent of the Environment Minister before carrying out development in a wilderness area, including land clearing. Before granting consent, the Minister must conclude that the area will not be adversely affected (Wilderness Act 1987, s 15). Where privately owned land is declared as wilderness on the basis of a conservation agreement, the extent to which the landholder is allowed to carry out development will be determined by the provisions of the agreement and applicable environmental planning instruments.

[4.470) Reserved and dedicated land will still be subject to the p~ovisions of any ~elevant environmental planning instruments (EPis) made under the Environmental Planning and Assessment Act 1979 (see Chapter 3). EPls cannot authorise any activities or projects on the land that are not authorised by the legislation under which the reservation or dedication was made, but they can impose additional restrictions. Therefore, the reservation and dedication process operates as an important backdrop to the planning process in relation to these areas of land. See Case Study, Friends of King Edward Park Inc at [4.540].

Development adjoining OEH land and water [4.480] Guidelines for developments adjoining land and water managed by t~e Office of Environment and Heritage (2010) have been prepared by OEH for use by councils and other consent authorities when assessing development applications that may impact on:

• land acquired, reserved or dedicated under the National Parks and Wildlife Act 1974 • land declared to be an aquatic reserve under the Marine Estate Management Act 2014.

OEH also works with the Marine Estate Management Authority to manage land declared to be a marine park under the Marine Estate Management Act 2014. [See http://www.environment.nsw.gov.a u/resources/protectedareas/10 5 0 9devadj deccw. pdf].

Management plans [4.490] The legislation allowing Crown land to be set aside for special purposes also provides for detailed management plans to be made for these areas.

Mandatory plans (4.500] Management plans must be prepared "as soon as practicable" for:

• National Parks • historic sites • nature reserves • State conservation areas • regional parks • karst conservation reserves.

It has been held that there was a breach of the Act where a management plan had not been prepared 17 years after a National Park came into existence (National Parks Association of NSW v Minister for the Environment (1992) 130 LGERA443). Where Aboriginal land is reserved or dedicated under Part 4A of the National Parks and Wildlife Act 1974, a plan of management is to be prepared by the board of management for the lands concerned, in consultation with the Director-General of the Environment Department (s 72(1C)).

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[4.510]

Under the Forestry Act 2012, a "working plan" must be prepared for flora reserves (s 25(1)). Management plans are prepared for State forests (s 21(1))). When flora reserves are located in State forests, the forest management plan provides general provisions and the working plan deals with the finer details.

Optional plans [4.510) Plans are optional (National Parks and Wildli-'e /C Act 1974 ' s 72·) Crown Lands Act 1989 ) s 112) for:

• Aboriginal areas • wildlife refuges • land dedicated or reserved under the Crown lands legislation. Making management plans

[4.520) Management plans under the National Parks and Wildlife Act 1974 are initially prepared by the Director General of the Environment Department, or by the local council that has care, control and management of a State conservation area or regional park. They are eventually submitted to the Minister for the Environment, who has the final say on the matter (see generally National Parks and Wildlife Act 1974, Part 5). Plans for wildlife refuges and land subject to a conservation agreement require the consent of the owner and the occupier (s 73B(6)).

Preparing and exhibiting plans [4.530) Management plans for protected areas under the National Parks and Wildlife Act 1974 must be placed on public exhibition (s 73A). Members of the public then have a period of not less than 90 days to make representations, which must be forwarded by the responsible authority to the National Parks and Wildlife Advisory Council. This council has a diverse membership of all relevant stakeholders (s 22, Schedule 7). The plan, with the suggestions or comments of the council, is then referred to the Minister, who has the final say (s 73B). Management plans for reserves under the Crown lands legislation are prepared by the Minister or, with the Minister's consent, the reserve trust (Crown Lands Act 1989, s 112). The trust is charged with the care, control and management of the land (s 92(5)). The Minister has the final say (s 114(1)), after the draft has been placed on public exhibition and any representations have been considered (s 113; Crown Lands Regulation 2006, cl 34).

Case study: Commercial function centre not allowed in a Crown Reserve within a public park [4.540) In Friends of King Edward Park Inc v Newcastle City Council (No 2) [2015] NSWLEC 76, a local community association challenged the grant of a development consent by Newcastle Council for a "function centre" situated in the Park. The proposed development was located in a crown land reserve (King Edward

[4.560)

chapter 4 Crown land and protected areas

Headland Reserve) managed by the State Government via a Trust, situated within a large public park managed by the council. Both of these areas of land were reserved from sale for the purposes of "public recreation" under Crown land legislation from as early as 1894. In September 2007 a plan of management for the Reserve was adopted by the Minister which by its terms sought to approve additional uses for "conference centres and commercial facilities that provide for public recreation". The council's LEP provided that any use allowed under a Plan of Management was permissible with development consent. In finding for the applicant and declaring the development consent to be invalid, Justice Sheahan said that the use of land for private functions such as weddings is inimical to its use for public recreation. His Honour reviewed the earlier case law concerning the use of land for "public recreation". The Court also found the Plan of Management to be invalid because the Minister did not consider the mandatory relevant matters under s 114(1C) of the Crown Lands Act 1989. This case also provides a useful illustration of the interaction between planning law and the principles concerning management of Crown land.

Catchment areas and submerged lands [4.550) Where a National Park, historic site, nature reserve, karst conservation reserve, wilderness area or Aboriginal area is in a catchment area, the Director-General must refer the draft plan to the relevant water supply authority, and the Minister must consider any representations made before adopting the plan (National Parks and Wildlife Act 1974, s 74). To protect the quality of water in Sydney Water's storage areas, tracts of land surrounding the storage areas have been gazetted as special areas under the Water NSW Act 2014. These special areas comprise an extensive (365,000 hectare) and largely contiguous band of unspoilt bushland within the drinking water catchment of greater Sydney. They are jointly managed by Water NSW and the National Parks and Wildlife Service according to a Special Areas Strategic Plan of Management (SASPoM) made under section 49 of the now repealed Sydney Water Catchment Management Act 1998. Requirement for preparation of SASPoMs is now provided by section 52 of the Water NSW Act 2014. The current SASPoM applies to all publicly-owned land, but not privately-owned land, in the special areas. In accordance with the SASPoM, Water NSW and the National Parks and Wildlife Service manage 86% of the special areas, with the remaining lands privately owned.

Land under water [4.560) Draft plans must be submitted to the Fisheries Minister for comment if they are for land under water in:

• National Parks • historic sites • State conservation areas • regional parks • nature reserves

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[4.570]

• karst conservation reserves • Aboriginal areas. In the case of land in territorial waters (see [19.840]), the concurrence of the Fisheries Minister is required for plans (National Parks and Wildlife Act 1974, s 80).

Floro reserves and State forests [4.570] Working plans for flora reserves and management plans for State forests do not have to be submitted to the Minister for the Environment for approval. However, section 73 of the National Parks and Wildlife Act 1974 enables the Director-General of the Environment Department to prepare a management plan for a State forest, with the agreement of the Forestry Corporation. In this case, the Minister can adopt the plan, provided that the written agreement of the Forestry Corporation is first obtained. Such plans must be cancelled at the request of the Forestry Corporation (s 73B(8)). See Chapter 13 on the management of land under the jurisdiction of the Forestry Corporation.

Objectiv es of management plans [4.580] The National Parks and Wildlife Act 1974 spells out the objectives to be pursued in making management plans. These include (s 72AA}:

•

the specific management principles provided for each category of land that can be reserved under the Act. That is: -

National Parks (s 30E) historic sites (s 30F) State conservation areas (s 30G) regional parks (s 30H) karst conservation reserves (s 301) nature reserves (s 30J) Aboriginal areas (s 30K)

• the conservation of biodiversity, including the maintenance of habitat, ecosystems and populations of threatened species • the protection and appreciation of objects, places and structures of cultural significance, and tracts of land • fire management • the potential for the reserved land to be used by Aboriginal people for cultural purposes • the rehabilitation of landscapes and the reinstatement of natural processes. There is no provision in the Forestry Act 2012 dealing directly with the objectives of management plans. Since the enactment of the Forestry Act 2012 the Minister has no role in the making of management plans, it is the Forestry Corporation, constituted as a SOC under the State Owned Corporations Act 1989. However, the objectives of the Forestry Corporation include compliance with the principles of ESD, (s l0(l)(c)), and "to be an efficient and environmentally sustainable supplier of timber from Crown-timber land and land owned by it under its control and management": section l0(l)(e) of that Act. The Corporation also has to

[4.600]

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abide by the objectives of a land manager under Pt 5 of the Act: ss 10(3) and ll(l)(e), Forestry Act 2012, and State forest management plans should be in line with these objectives which are set out in s 59 of the Act. The Act provides that, the principle objectives specified in ss l0{l}{a) and l0(l)(e) do not apply in relation to the Forestry Corporation's functions as a land manager: s 59(3), Forestry Act 2012 but conducting its activities in compliance with ecologically sustainable development set out ins l0(l)(c) continues to apply to its role as a land manager. See further Chapter 13.

Enforcing management plans [4.590] Once the Minister has made a management plan or a working plan for flora reserves, it is legally binding: no operations can be undertaken on or in relation to the area unless they are in accordance with the plan (National Parks and Wildlife Act 1974, s 81(4); Forestry Act 2012, s 25(4); Crown Lands Act 1989, s 114(2)). In Guthega Development Pty Ltd v The Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353, however, it was held that the mere grant of a lease did not amount to "operations" that had to be authorised by the management plan, even though the lease required the lessee to carry out "operations" . There was time for the requirements of the management plan to be observed after the grant of the lease but before the operations were carried out.

The Director-General of the Environment Department and the trustees of State conservation areas have the duty of carrying out and giving effect to management plans (National Parks and Wildlife Act 1974, ss 81(1), 81(3A)), and anyone can bring proceedings to ensure that this is done (s 193). A similar duty is placed on the trustees of Crown land reserves (Crown Lands Act 1989, s 114(2)), but this is somewhat illusory because the Minister can simply alter or cancel the plan at any time (s 115). Management plans under the National Parks and Wildlife Act 1974 can also be amended, but the proposed changes must go through the same vetting process as the original plan (National Parks and Wildlife Act 1974, s 73B).

Enforceability of management plans [4.600] What does enforceability mean in practice? Are management plans written in terms that create legally enforceable obligations on those administering them?

The precise wording of plans needs to be carefully examined. Plans may not use language that creates a positive duty to carry out a management activity but instead simply give discretion to those administering the plan by using words such as "may" rather than "should" or "must". Where obligations to carry out management activities are qualified by phrases such as "where necessary", "as far as possible" or "as soon as possible" they will be difficult to enforce. Even where plans incorporate timetables for the completion of management activities, these will nearly always be made subject to the availability of funds and other considerations.

It is much easier to see how provisions prohibiting activities might be legally enforceable. In management and working plans for State forests and flora reserves, harvesting operations may be prohibited in certain zones designed for conservation purposes. In plans for National Parks, there may be prohibitions against such things as grazing, beekeeping and public motor vehicle access.

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But even prohibitions are sometimes worded in such a way as to give decision-makers some discretion about applying them. For example, there may be provision to grant a particular permission or to modify prohibitions in the light of changed circumstances. A limit on the yield of a particular type of log in a forestry management plan may be subject to review, taking into account such things as the economics of supply and demand and the principle of sustainable yield.

Commonwealth protected areas [4.610] The Commonwealth defines a "protected area" as: a clearly defined geographical space, recognised, dedicated and managed through legal or other effective means to achieve the long-term conservation of nature with associated ecosystem services and cultural values. [Source: Australian Government, Department of the Environment website] The primary purpose of the recognition, dedication and management of protected areas 1s biodiversity conservation according to the classification system and management objectives developed by the International Union for the Conservation of Nature (IUCN). In practical terms, the States and Territories have primary responsibility for creating protected areas. While there is a National Reserve System (NRS) that seeks to ensure that a sample of all of Australia's diverse ecosystems, and the plants and animals they contain, are protected, most of the protected areas in this system have been created and are managed by the States (in NSW, under the National Parks and Wildlife Act 1974, discussed earlier in this Chapter) rather than by the Commonwealth, as Commonwealth reserves. The vast majority of land in the NRS is national park or public reserve but also includes areas of private land and indigenous community owned land (Indigenous Protected Areas) which is securely managed for biodiversity conservation. However the Commonwealth has remained active in the goal of protected area establishment and management by states and territories. In 2009, the NRS Task Group prepared a NRS Strategy 2009 - 2030 which identifies priority actions to provide a nationally coordinated approach, including the identification of critical areas for climate change resilience, such as refugia 1, to act as core lands of broader "whole of landscape scale" approaches to biodiversity conservation by 2030 [Source: Australian Government, Department of the Environment]. There are detailed provisions in Part 15 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) relating to Commonwealth reserves: protected areas on land within the jurisdiction of the Commonwealth. In addition, there are provisions in the Commonwealth legislation implementing Australia's obligations under international conventions relating to world heritage and wetlands. There are a number of areas in NSW that are listed under these conventions and so these provisions are considered in more detail.

Meaning: an area in which a population of organisms or species can survive through a period of unfavourable conditions, such as drought, fire or glaciation.

[4.630)

chapter 4 Crown land and protected areas

Commonwealth reserves [4.620] Commonwealth reserves (Environment Protection and Biodiversity Conservation Act 1999, Division 4) can be declared over (ss 343 - 352):

• areas of land or sea that the Commonwealth owns or leases • areas that are in a Commonwealth marine area • areas outside Australia that the Commonwealth has international obligations to protect.

The proclamation declaring an area to be a Commonwealth reserve must assign the reserve to one of the following categories (s 346(1)(e); Environment Protection and Biodiversity Conservation Regulations 2000, reg 10.03H):

• strict nature reserve • wilderness area • National Park • natural monument • habitat/species management area • protected landscape/seascape • managed resource protected area.

These categories are derived from those developed by the IUCN. Management principles for each category are set out in Schedule 8 of the Regulations (s 348(1)). Permissible and prohibited activities in Commonwealth reserves and conservation zones are governed by the plans of management and the Environment Protection and Biodiversity Conservation Regulations 2000 for the purposes of protecting the environment and conserving biodiversity (ss 354, 356, 390E).

World heritage areas and Ramsar wetlands [4.630] Australia is a party to both the Convention for the Protection of the World Cultural and Natural Heritage (1972) (see [17.40]) and the Convention on Wetlands of International Importance (1971), commonly known as the Ramsar Convention (see [14.670]). The Environment Protection and Biodiversity Conservation Act 1999 implements these Conventions by enabling the Commonwealth, after seeking the agreement of the relevant State Government (ss 314(2), 326(2)), to submit properties for listing on the World Heritage List and to submit wetlands for inclusion in the List of Wetlands of International Importance. Australia currently has 65 wetlands on this List that cover more than 8.3 million hectares [Source: Australian Government, Department of the Environment]. Both lists are kept at an international level. A number of properties and wetlands in NSW are included in these lists. Some of those on the List of Wetlands oflnternational Importance are located on private land (eg, Macquarie Marshes, Gwydir wetlands), but some of the wetlands on this list (eg, Towra Point Nature Reserve, Lake Pinaroo, Little Llangothlin Lagoon, Myall Lakes and Narran Lake) and some properties on the World Heritage List (eg, the Gondwana rainforests and the Greater Blue Mountains) incorporate significant areas of Crown land protected under the provisions of the National Parks and Wildlife Act 1974, discussed above in this Chapter.

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In addition to the protection provided for these areas under NSW legislation, the Environment Protection and Biodiversity Conservation Act 1999 contains important protective provisions. Any action that is likely to have a significant impact on the ecological character of a Ramsar wetland or the world heritage values of a world heritage property triggers the need for Commonwealth assessment and approval (see [14.640]). This includes wetlands and properties not yet listed at an international level, but with the potential to be listed, in situations where the Commonwealth Environment Minister has declared that they are under threat (ss 13, 14, 17, 17A).

Apart from this, however, management of NSW protected areas included on these international lists is within the domain of the NSW Government. The Commonwealth legislation simply provides that the Commonwealth "must use its best endeavours" to see that a management plan which satisfies Australia's obligations under the Conventions is prepared and implemented in co-operation with NSW (ss 320, 321, 332, 333), perhaps offering financial or other assistance as an inducement (ss 324, 336). In this connection, the Commonwealth has developed management principles elaborating the provisions of the Conventions (ss 323, 335; Environment Protection and Biodiversity Conservation Regulations 2000, Schedules 5, 6).

5 Development Dr Peter Williams Faculty of the Built Environment University of New South Wales

Introduction ..................................................................................................................................................................... [5.20] When is development consent required? ....................................................................................................... [5.50] Legal classification of development ................................................................................................................ [5.270] Nonconforming uses ............................................................................................................................................... [5.410] Development applications .................................................................................................................................... [5.570] Who makes the decision? .................................................................................................................................... [5.830] Public participation ................................................................................................................................................... [5.910] Making the decision .............................................................................................................................................. [5.1180] Development consents ....................................................................................................................................... [5.1500] Development contributions .............................................................................................................................. [5.1880] Reviews and appeals ........................................................................................................................................... [5.2220] Modification, revocation and lapsing of consent ................................................................................... [5.231 OJ Enforcement of consents ................................................................................................................................... [5.2500] State significant projects ................................................................................................................................... [5.2690]

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[5.05]

Greater Sydney Commission Act 2015 [5.05] On 12 November 2015, the NSW Parliament passed the Greater Sydney Commission Act 2015. The Act was assented to on 19 November 2015, but at the time of writing has not yet commenced. Once established, the Greater Sydney Commission will undertake a number of strategic planning and development assessment functions. The Commission will assume the development assessment functions of the two Sydney Joint Regional Planning Panels. The Environmental Planning and Assessment Act 1979 will be amended so that the Greater Sydney Commission is defined as a "consent authority" under that Act. [5.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) and the "Minister" refers to the Minister administering this legislation (currently the Minister for Planning). "Secretary" refers to the Secretary (formerly Director-General) of the Planning Department, currently the Department of Planning and Environment. The "Regulation" or "EPA Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW). "Consent authority" refers to the body responsible for granting development consent, frequently a local council.

Introduction [5.20] Examined in this Chapter are project assessment and decision-making processes under Parts 4, 4A and 5.1 of the EPA Act. Environmental assessment under Part 5 of the EPA Act is covered in Chapter 6. For the purposes of this Chapter, a project includes not only the erection of buildings or other structures, but also such things as:

• • • •

clearing land spraying pesticides extracting water for irrigation discharging waste. In some cases, one project might consist of a combination of activities.

A project may be carried out by any organisation - a government body, private industry or a farming cooperative, for example. It may also be purely personal - for example, building a home. In all these cases, the question is: under what circumstances will the law permit a particular project to go ahead? In most cases, a project requires approval from a particular public authority, following an application by a developer. Certain activities are completely prohibited by law. For example, prospecting for or mining uranium in NSW is prohibited by the Uranium Mining and Nuclear Facilities (Prohibitions) Act 1986 (s 7(1): see [18.1270]). Generally, however, there is a reluctance to take such an inflexible position. Many statutory provisions appear at first sight to be absolute prohibitions, but most provide that approval (a licence or consent) can be sought for the activity in question. Even the general prohibitions against harming threatened species and damaging their habitat are bypassed where prior permission has been obtained (National Parks and Wildlife Act 1974, ss 118A, 118D). Other projects are not prohibited altogether, but must be carried out in a particular way or comply with certain general requirements or "standards". If, for example, the project amounts to development,

[5.40]

chapter 5 Development

it will usually have to comply with development standards set out in environmental planning instruments (EPis, see [3.170]). If it is a building, it will usually have to comply with building standards contained in the Building Code of Australia.

How many approvals are required? [5.30] Ideally, only one application for approval should have to be made to one decision-making body. This is often not the case. The law may regard a project as a number of activities, each requiring the approval of a different decision-maker under various pieces of legislation - and if approval cannot be obtained for a particular activity, the whole project may collapse. A new mine, for example, is likely to require not only a mining lease, but also at least the following other approvals:

• an environment protection licence under the Protection of the Environment Operations Act 1997 (see [9.670]) • development consent under the Environmental Planning and Assessment Act 1979 (EPA Act) (discussed in this Chapter) • a licence under the Water Act 1912 or the Water Management Act 2000 (see Chapter 15).

There are several explanations for this situation. One is historical: different legal controls, focusing on different aspects of projects, were introduced at different times, and often little attempt was made to reconcile them with provisions that already existed. Another is the structure of the executive government: generally, particular Ministers and agencies are responsible for sponsoring new legislation that lies within the area of responsibility of the relevant Minister or agency. A related explanation is that it is considered appropriate for different Ministers or agencies to make decisions on different aspects of a proposal under different legislation reflecting specific types of expertise belonging to the Minister' s advisers or the agency concerned. Sometimes requirements differ because there is competition between public bodies or government departments, because of the constitutional division of power between State and Commonwealth governments, or because of the political balance of power between State and local government.

Integrating the approvals process [5.40] Late in the 20th century, legislators had become aware that the various approval requirements caused problems and made some attempt to integrate them. For example, the Mining Act 1992 contains extensive provision for integrating the granting of mining titles with the provisions of the EPA Act (see [18.480]). More generally, amendments made in 1997 to the EPA Act introduced the concept of integrated development into the development control system (see [5.370]). The 1997 amendments also took a step towards reducing the number of separate approvals required for a project by incorporating building and subdivision approval requirements formerly contained in local government legislation into the procedure for implementing a development consent.

Much of the statutory planning reform to the project assessment system since 1997 has focused on calibrating the operation of the integrated development assessment amendments to the EPA Act. For example, in 2005, a separate streamlined system for the assessment of major projects was introduced into the EPA Act. That system was repealed by the Environmental

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Planning and Assessment Amendment (Part 3A Repeal) Act 2011 which came into operation on 1 October 2011, and was replaced by a new process for State significant development and State significant infrastructure (see [5.2700]).

How approvals work [5.50] Some approvals seek to regulate projects as an ongoing activity (eg, environment protection licences), while others focus on their initial setting up (eg, development consent). Where an approval regulates an ongoing activity, the decision-maker has much greater power to adjust conditions. An approval may also have to be renewed or reviewed regularly: for example, environment protection licences must be reviewed at least every five years (Protection of the Environment Operations Act 1997, s 78).

Approvals dealing with the initial setting up of a project are less flexible, and ordinarily do not have to be renewed. This means that they give long-term enforceable rights to the person obtaining approval. It is commonly assumed that development consent under the EPA Act is somehow at the core of this complex regulatory system - probably because development consent is the commonest form of approval encountered. But many projects do not require development consent, even though they may require approval under other legislation. Even where development consent is required, it is in no sense pre-eminent. Other approvals must be obtained if the law requires them, and if any of them are refused, the project cannot go ahead. Development consent is only one of a number of overlapping project control processes operating at present in NSW. However, it is the focus of this Chapter.

When is development consent required? [5.60] Whether development consent is required is generally determined by an environmental planning instrument (EPI) made under Part 3 of the EPA Act (see Chapter 3). The provisions of Part 3 relating to EPis and development control are very broadly worded: section 24 allows for the making of EPis for achieving any of the objects of the Act, and section 26 is similarly expansive in terms of describing the contents of EPis. An EPI can control development (s 26(1)(6)) by either waiving the necessity for consent (s 30(1)(a)), requiring consent (s 30(1)(6)) or prohibiting development (s 31 ). Since the 1997 amendments to the Act, the term development includes anything referred to in section 26 that is controlled by an EPI (s 4).

If an EPI requires that consent be obtained before a particular activity can be carried out, the provisions of Part 4 of the EPA Act apply. In general terms, Part 4 of the Act establishes a threefold classification for development:

• • •

development that does not need development consent (s 76) development that needs consent (s 76A) development that is prohibited (s 76B). See also Chapter 3.

chapter 5 Development

[5.80)

Land use tables [5.70] In practice, development consent is most frequently required by the land use tables in local environmental plans (LEPs), although it would be unwise to look only there. The whole of the LEP should be examined in detail, along with any State environmental planning policies (SEPPs) that apply to the land in question. Care must be taken because any EPI can amend, expressly or impliedly, the provisions of a previous EPI (Marchese and Partners Architects v Warringah Council [2002] NSWLEC 41).

Land use tables regulate development. Sections 33A and 33B of the EPA Act provide for the standardisation of EPis and the staged repeal and review of non-standardised instruments. The Standard Instrument (Local Environmental Plans) Order 2006 provides for the standardisation of local environmental plans in accordance with a standard instrument template, generally referred to throughout this book as the Standard LEP or Standard Instrument (see [3.100]). The Standard LEP contains a Land Use Table that sets out for each zone the objectives for the zone and the development that is permitted without development consent, only with development consent and prohibited. Older instruments have similar tables. To determine whether development is permissible with consent, two questions must be answered: 1.

does the project amount to development?

2.

does the land use table say that a project for this purpose requires development consent?

What is development? [5.80] Under the EPAAct (s 4(1)), development means:

• the use of land • the subdivision of land

• the erection of a building

• the carrying out of a work • the demolition of a building or work • any other act, matter or thing referred to in section 26 that is controlled by an EPI (see below). In Lennard v Jessica Estates Pty Ltd (2008) 71 NSWLR 306; [2008] NSWCA 121, the NSW Court of Appeal held that whilst each of the subsets of the definition of development in s 4(1) may be mutually exclusive, the phrase "a land use" in the applicable EPI, when read in context, extended not only to the use of land for a particular purpose but also to the erection of buildings to enable that use to be carried out.

Development "does not include any development of a class or description prescribed by the regulations for the purposes of the definition" - that is, something is not development if regulations made under the Act say it is not. The reference in the definition to the mere use of land being development must be read alongside provisions that protect existing and continuing uses (see [5.420]) .

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What is "the use of land"?

[5.130)

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Demolition of a building or work includes enclosing a public place in connection with the demolition of a building or work (s 4(2)(e)).

[5.90] In Warringah Council v Swain [2010] NSWLEC 68, the Land and Environment Court

held that the long-term storage of a commercial fishing vessel in the front yard of residential premises was development because it involved the use of the land. Craig J acknowledged that often the determination of whether a particular activity constitutes development will be a matter of fact and degree and held on the facts that the length of time over which the vessel had stood in the yard of the residential premises, its apparent use as a commercial fishing trawler and its state of repair meant that the storage of it constituted a use of land in planning terms, and therefore development. Development comprising "a use of land" refers to or includes incidental and associated uses (North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20). Any person who uses land in some way carries out a development of it (Hillpalm Pty Ltd v Heavens Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59). In Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285; [2008] HCA 48, the High Court said that recurring physical acts on land, by which the land is made to serve some purpose, will usually constitute a use of the land. Applying this approach, in Hill Top Residents Action Group Inc v Minister for Planning (2009) 171 LGERA 247; [2009] NSWLEC 185, Biscoe Jin the Land and Environment Court held that depositing bullets and excluding the public from a danger area associated with a rifle range constitutes a use of land in planning terms. See also Newcastle City Council v Royal Newcastle Hospital (1957) 96 CLR 493; [1957] HCA 15 where the High Court, in a rating case decided under the Local Government Act 1919, held that land adjoining hospital grounds and purposely kept in its natural state to provide clean air and quiet undeveloped surroundings for users of the hospital was a use of land.

Building [5.100] Until the commencement of the Environmental Planning and Assessment Amendment

Act 1997 on 1 July 1998, there was a separate but interlinked system of building regulation, administered by local councils. That system was initially contained in Part XI of the Local Government Act 1919, then in the Local Government Act 1993. Building and demolition is now regulated under the EPA Act, apart from installation of a manufactured home, moveable dwelling or associated structure, which requires approval under the Local Government Act 1993 (s 68: see [8.60]).

Erecting or demolishing a building [5.110] The erection of a building is defined in the EPAAct (s 4(2)(6)) to include:

• the rebuilding of, the making of alterations to, or the enlargement or extension of, a building • the placing or relocating of a building on land • enclosing a public place in connection with the construction of a building • erecting an advertising structure over a public road • extending a balcony, awning, sunshade or similar structure or an essential service pipe beyond the alignment of a public road.

Erecting temporary and minor structures [5.120] If a temporary structure is erected, does that comprise the erection of a building as defined in the Act? Section 4(1) of the EPA Act defines a building to include part of a building and any structure or part of a structure, other than a manufactured home, a moveable dwelling or associated structure, or a temporary structure.

In Najask Pty Ltd v Palerang Council (2009) 165 LGERA 171; [2009] NSWCA 39, the NSW Court of Appeal held that the terms moveable dwelling and manufactured home do not necessarily import a degree of permanency of habitation or occupancy. Instead, the relevant definitions refer to physical characteristics rather than the degree of permanence.

In Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2008] NSWLEC 181, Pain Jin the Land and Environment Court held that the installation of holiday cabins on land did not constitute building work as defined in section 4(1) of the Act because the cabins were moveable dwellings. In Cohen v Wyong Shire Council [2005] NSWCA 46, the NSW Court of Appeal held that a shipping container placed on land was a building that required consent. The definition of temporary structure in section 4(1) of the Act now specifically "includes a booth, tent or other temporary enclosure (whether or not part of the booth, tent or enclosure is permanent), and also includes a mobile structure". The question whether the erection of a minor structure constitutes development depends on whether the Act was intended to cover that type of structure (Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302). In Conomos v Chryssochoides (1997) 97 LGERA 113, it was held that a set of sewer and drainage pipes on the side of a residential building in an urban area was a structure or part of a structure because "their effect upon the amenity of the adjoining neighbour is unreasonable in all the circumstances". A similar approach was taken in Burwood Council v Russo (40145 of 1994, 14 March 1995), where corrugated iron sheeting was held to be a structure in a densely populated urban residential area. In Blacktown City Council v Lacan Pty Ltd [2008] NSWLEC 172, Preston J in the Land and Environment Court held that a group of prefabricated, re-locatable sheds that had been placed on land were structures and therefore buildings within the meaning of the Act. See also Jambrecina v Blacktown City Council [2009] NSWCA 228, where the NSW Court of Appeal, placing significant reliance on amenity impacts, also held that the placement of four sheds on land involved the erection of structures and was therefore development. In North Sydney Council v Gilmour [2009] NSWLEC 93, Pain Jin the Land and Environment Court held that a hoarding fence enclosing waterfront public land causing its alienation from public use was a temporary structure and therefore a building within the meaning of the Act requiring development consent under the applicable EPI.

Subdivision [5.130] Regulation of subdivision in New South Wales was first introduced in the Local

Government Act 1919 (Part XII - somewhat erroneously titled "Town Planning"), well before the introduction of planning and development control in 1945. Part XII was integrated into the EPA Act by the Environmental Planning and Assessment Amendment Act 1997 from 1 July 1998.

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Subdivision of land is defined in section 4B of the EPA Act to be the division of land into two or more parts that are obviously adapted for separate use, occupation or disposition by various means including through the registration of a plan of subdivision within the meaning of the Conveyancing Act 1919. By operation of section 4B(3)(e)(i) and section 195 of the Conveyancing Act 1919, the subdivision of land does not include

the consolidation of land where the consolidation merely involves the consolidation of two or more existing lots into a single lot, where there is no simultaneous redivision of them into two or more lots. In Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246, Sugerman J said: The approval of a subdivision into lots ... is in law the approval of a subdivision simpliciter and not its approval with any condition or for any particular purpose such as shops or dwellings, etc. The question what sort of building may be erected upon the respective blocks is one which in strictness arises for decision later when it is sought to build on them and one which will be affected by circumstances as they then exist, by various considerations including the size of the lots, and by other matters which may have occurred in the meantime, such, for instance, as the proclamation of the area as a residential area. It could happen that land once subdivided might afterwards be struck with sterility in the hands of owners of the blocks; for instance if there had been a subdivision into lots of a size suitable only for the erection of shops in a position in'which subsequent events showed, or had the result, that it would not be profitable or permissible to erect shops. In Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311, the NSW Court of Appeal held that the remarks of Sugerman J remain applicable to the present definition of subdivision of land. See also Wehbe v Pittwater Council [2007] NSWLEC 827.

[5.170)

ch apter 5 Development

LGRA 270). Whether or not land clearing or land filling amount to a work will depend on whether or not the changes brought about are substantial (Kiama Municipal Council v French (1984) 54 LGRA 42; Warringah Shire Council v May). In Kiama Municipal Council v French, it was held that dumping fill on land, which had the effect of raising it by no more than 10 cm in order to improve the quality of vegetation for grazing, did not amount to a work. Instead it was a use of the land - cultivating fodder. Pesticide spraying is neither a work nor a use of land (Rundle v Tweed Shire Council (1989) 68 LGRA 308). A sediment pond to serve a 17-lot subdivision was a work, not a building (Williams v Blue Mountains City Council [2001] NSWLEC 73).

Matters covered by section 26 [5.160] The matters referred to in section 26 of the Act include:

• protecting, improving or utilising the environment • controlling development • protecting and conserving native animals and plants • protecting or preserving trees or vegetation • controlling advertising.

If such matters are controlled by an EPI, they will amount to development. For example, in Dames and Moore Pty Ltd v Byron Council [2000] NSWLEC 46 and Cameron v Lake Macquarie City Council [2000] NSWLEC 34, it was held that conduct contrary to a tree preservation order made by the council was development that required consent because it was conduct controlled by an EPI.

Subdivision work

Purposes of the development

[5.140] Subdivision may involve subdivision work. Subdivision work is defined to mean any

[5.170] It has been held that "[i]n planning law, use must be for a purpose" as the purpose is

physical activity authorised to be carried out under the conditions of a development consent as referred to in section 81A(3) (EPA Act, s 4(1)). It includes the construction of roads and stormwater drainage systems (s 85(4)).

"the end to which land is seen to serve" and "describes the character which is imparted to the land at which the use is pursued": per Preston] in Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114 at [27] referring to Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Minister Administering Crown Lands Act v New South Wales Aboriginal Land Council (No 2) (1993) 80 LGERA 173. However, the nature of a use must be distinguished from the purpose of the use. Uses of different natures could still be seen to serve the same purpose. See Chamwell Pty Ltd v Strathfield Council [2007] NSWLEC 114; Warringah Shire Council v Raffles (1978) 38 LGRA 306.

What is "the carrying out of a work"? [5.150] The expression "the carrying out of a work" is not defined in section 4(1) of the EPA Act. However, section 4(2)(c) provides that a reference to the carrying out of a work includes a reference to the rebuilding of, the making of alterations to, or the enlargement or extension of, a work, or enclosing a public place in connection with the carrying out of a work.

It seems that the concept of a work is "intended to refer to something done to the land itself' (Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1 at 24; Warringah Shire Council v May (1979) 38 LGRA 424). In Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 Biscoe Jin the Land and Environment Court held that that fencing and signposting a public exclusion area associated with a rifle range constituted the carrying out of work and was therefore development. However, questions of degree are involved (see Parramatta City Council v Shell Company of Australia Ltd (1972) 26 LGRA 25). Activities associated with "the ordinary and normal pursuit of an existing land use" do not amount to the carrying out of a work (CB Investments Pty Ltd v Colo Shire Council (1980) 41

Whether or not development is permissible with consent depends on its purpose. Zoning tables indicate which purposes of development are permissible with consent, which do not require consent and which are prohibited. The result is that the courts often have to deal with difficult questions of how the purpose of development should be classified. The current state of the law is that the question of whether development is permissible or prohibited by an EPI is a fact, which the court must determine for itself (Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; Chambers v McLean Shire Council [2003] NSWCA 100; Issa v Burwood Council [2005] NSWCA 38). Previously, the courts had held that this was a matter of opinion for the consent authority (frequently a local council) acting reasonably, and did not intervene in such decisions unless they were unreasonable (Londish v Knox Grammar School (1997) 97 LGERA 1).

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Problems with classifying development [5.180] Problems arise in relation to classification for a number of reasons, as outlined below.

[5.230]

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LGRA 151; Egan v Hawkesbury City Council (1993) 79 LGERA 321; Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; RCM Constructions v Ryde City Council [2004] NSWLEC 266).

While one of the aims of adopting the Standard LEP was to minimise problems of classification by utilising standard definitions, difficulties have not been fully eliminated. For an explanation of the methodology employed by the Department of Planning for categorising land use and other definitions under the standard LEP, see: LEP Practice Note PN 11-003 - Preparing LEPs using the Standard Instrument, at: http://www.planning.nsw.gov.a u/-/media/F iles/D PE/Practice-notes/ preparing-leps-using-the-standard-instrument-definitions-2011-03-10 .ashx.

The development considered in Friends of Pryor Park Inc v Ryde Council [1995] NSWLEC 160 fell within the definition of community facilities (a permissible use) as well as the definition of child care centre (a prohibited use). Bignold J found that a child care centre is a species of the genus community facilities and that the prohibition of that use did not affect the permissibility of the proposed development under the terms of the LEP.

Terms and definitions

Dual-purpose developments

[5.190] The purpose of development is usually spelt out in land use tables in terms of things like dwelling houses or caravan parks. The things are often defined in the definition section of the EPI, or in any model provisions (see [3.130]) that have been incorporated. Usually the definitions are expressed in terms of purpose, and employ phrases such as "used for the purpose of' or "used for" or "used as". But sometimes they are framed in terms of the design or structure of a building (eg, "a building designed for use as a dwelling for a single family").

Sometimes particular purposes are defined differently in different EPis. This is especially true of deemed EPis (see [3.40]) which often contain their own set of definitions. There are, for example, a number of different definitions of dwelling house. One of the primary purposes of the Standard LEP was to deal with this state of affairs by standardising definitions of development purposes. These definitions have to be adopted in new LEPs made in accordance with the Standard LEP template (cl 1.4; Act, s 33A(3)). Clause 2.3(3)(a) of the Standard LEP provides that a reference in the Land Use Table to a type of building or other thing is a reference to development for the purposes of that type of building or other thing.

References to other legislation [5.200] In some cases, the definition in the EPI requires recourse to other legislation to ascertain

the meaning of a term. For example, the Standard LEP defines forestry as having the same meaning as forestry operations in Part 5A of the Forestry Act 2012, and moveable dwelling as having the same meaning as in the Local Government Act 1993, and registered club means a club that holds a club licence under the Liquor Act 2007. In other cases, reference to other legislation in EPI definitions requires the courts to determine whether a particular proposal complies with other legislative requirements. For example, the Standard LEP defines mining as being mining carried out under the Mining Act 1992 or the recovery of minerals under the Offshore Minerals Act 1999. In older EPis refreshment rooms are defined as an activity for which a lease or licence can be granted under the National Parks and Wildlife Act 1974 (see Woollahra Municipal Council v Minister for Environment (1991) 73 LGRA 379; Willoughby City Council v Minister Administering the National Parks and Wildlife Act (1992) 78 LGERA 19; Friends of Pryor Park Incorporated v Ryde City Council (1995) 89 LGERA226).

Is a use specifically prohibited? [5.21 0] Another problem can arise if a type of use is specified as permissible, but a specific use is prohibited (see Ashfield Municipal Council v Australian College of Physical Education (1992) 76

[5.220] Other problems arise when a development may be viewed as having more than one purpose. Consider, for example, a zone where development for the purposes of agriculture is permissible with consent, but use for the purposes of an extractive industry is prohibited. What if a farmer wishes to remove a mound of gravel deposited by a river? Removal will make the land available for agricultural purposes, but will also provide the farmer with income, because the gravel can be sold. Is the purpose of the development the carrying out of agriculture or the winning of extractive material?

In such situations, the courts are wary of deciding primarily on the basis of the intentions of the developer, because some degree of objectivity must be maintained. Impact on the environment is important, but is usually considered later, when deciding whether or not consent should be given, not at the earlier stage of classification.

Ancillary use - dominant or independent purposes [5.230] The courts do not consider that a development should be prevented simply because one of its purposes is prohibited. The central issue is whether one of the purposes is subordinate to a dominant purpose and therefore not an independent land use. If it is, it can be disregarded, and the development characterised by the nature of the dominant purpose (Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157). For example, in Chamwell Pty Ltd v Strathfield Council [2007) NSWLEC 114, Preston J in the Land and Environment Court considered the proper characterisation of the use of a carpark, driveways, access ways and landscaped forecourt that served a supermarket development. His Honour held that the activities of the retail customers on the ground floor and the basement carparking levels in the development were so commingled in time, place and circumstances with the actual exercise or carrying on of the retail uses of a supermarket that in a practical sense one could not conceive of the one being carried on without the other. Such uses were subordinate to the purpose of the supermarket as they were not by reason of their character, extent and other features capable of being independent. Similarly, in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, the drive-in aspect of a large takeaway liquor store was held to be ancillary to the use of the premises for a conventional bottle shop. Accordingly, the store was not a drive-in takeaway establishment. However, in Warringah Council v Swain [2010] NSWLEC 68, the Land and Environment Court held that the long-term storage of a commercial fishing vessel in the front yard of residential premises was not ancillary to the use of the land for residential purposes and was therefore a separate land use for planning purposes.

If the purposes are independent, they must be characterised and considered as separate land uses. If one purpose is permissible and one is prohibited, the development will be prohibited (CB

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Investments Pty Ltd v Colo Shire Council (1980) 41 LGRA 270; Liauw v Gosford City Council [2004] NSWLEC 72). An ancillary use can be an independent use: Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. In Health Administration Corp v Ryde City Council (2005) NSWLEC 507, for example, Pain Jin the Land and Environment Court held that an ambulance station proposed to be located on land within the same zone as, and near to, a hospital but which would operate separately from the hospital and service a wide range of facilities over a large area, including but not limited to the hospital, was ordinarily an ancillary use to the hospital. However, it was an independent use for the purposes of characterising the development. A minor use cannot be ignored simply because it is minor (Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323. The independent purpose test really does little more than beg the question, and there does not seem to be much predictability or principle in this area. Each case depends on the particular facts and the views of individual judges, which are frequently not spelt out. In some cases, two ostensibly separate land uses might not be independent of one another. For example, in Macquarie International Health Clinic Pty Ltd v University of Sydney (1998) 98 LGERA 218, the NSW Court of Appeal considered a situation where the respondent had sought development consent for the construction of a private teaching hospital partly on land zoned Education and partly on land zoned Hospital. The relevant council refused the application on the basis that it had no power to approve a proposal which straddled two zones, in one of which the alternative or secondary or ancillary uses were prohibited. The Court held that the proposal involved two purposes which were inextricably bound up so as to be properly categorised as a teaching hospital. They were not two independent uses of an educational institution and a hospital.

Policy questions [5.240] One basic policy issue is whether land use tables should make distinctions between broadly similar types of development. An EPI should prohibit development for the purpose of

hazardous industry in a residential zone, but does it make sense to prohibit development for the purpose of a boarding house or hostel in a zone where other forms of residential development are allowed? (See Burwood Municipal Council v Aboriginal Hostels Ltd (1979) 39 LGRA 150; Lorna Hodgkinson Sunshine Home v Lane Cove Municipal Council (1979) 38 LGRA 282.) Should not decisions in such cases be made on a case-by case-basis, taking into account the particular circumstances? This is increasingly the case as the State government pursues more flexible approaches to environmental planning as most recently evidenced by the adoption of the Standard Instrument LEP.

Overriding land use tables [5.250] Even where the purpose of a development has been properly classified, and it appears from the land use tables that the development is permissible if consent is obtained, that is by no means the end of the matter. The land use tables may be overridden by other provisions in the EPI. The EPI may identify the development proposed as an exempt development, in which case development consent is not required (see [5.290]). An EPI such as State Environmental Planning

[5.290]

chapter 5 Development

Policy (Exempt and Complying Development Codes) 2008 (see [3.420]) or State Environmental Planning Policy (Infrastructure) 2007 (see [3.4 70]) may apply, having the effect that the development does not need consent. This illustrates the vital importance of a full reading of all EPis that affect the land in question. A quick glance at the land use tables may give a completely misleading impression.

Is development excluded from an EPI? [5.260] Some schedules to EPis (eg, Schedule 1 to the Standard LEP or the Schedule in the Environmental Planning and Assessment Model Provisions 1980), as well as State Environmental Planning Policy (Infrastructure) 2007 (see [3.470]), specify development that is excluded from the land use restrictions in the EPI, including those imposed by the land use tables. This includes development carri~d out by public utilities supplying water, gas and electricity, sewerage services, and transport. This means that the specified development will not require development consent. Even if the development is prohibited under the zoning provisions, the prohibition will have no effect. See, for example, Sydney Catchment Authority v Bailey (No 2) [2007] NSWLEC 191.

Legal classification of development [5.270] In broad terms, the EPA Act establishes a three-fold classification of development (Part 4, Division 1):

• development that does not need development consent - that is, development that may be carried out in accordance with the relevant EPI (s 76(1)) • development that needs consent - that is, development that must not be carried out unless a consent has been obtained and is in force, and is carried out in accordance with the consent and the EPI (s 76A(l))

• development that is prohibited by the EPI or cannot be carried out on land with or without development consent under the EPI (s 76B).

Development permitted without consent [5.280] There are two types of development that do not need consent under Part 4 of the EPA Act - general development without consent and exempt development.

1. Exempt development [5.290] Exempt development is development having minimal environmental impact, specified in an EPI (s 76(2)). Exempt development may be carried out in accordance with the EPI without consent, except on land that is critical habitat or is part of a wilderness area within the meaning of the Wilderness Act 1987. The environmental assessment provisions of Part 5 of the EPA Act (see Chapter 6) do not apply to exempt development (s 76(3)).

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 ("the Codes SEPP") lists certain kinds of exempt development. Clause 3.1 and Schedule 2 of the

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Standard LEP also provide for exempt development. An LEP that contains exempt development provisions is overridden by the Codes SEPP (ell 1.9(1) and 1.9(2)); however where an LEP specifies additional (ie a wider scope of) exempt development its operation is not affected by the SEPP (cl 1.9(9)). The Code SEPP seeks the progressive extension of exempt (and complying) development (cl 1.3). Embedded in the SEPP are exempt (and complying) development codes that have State-wide application. Exempt development codes contained in the SEPP are:

•

General Exempt Development Code Advertising and Signage Exempt Development Code Temporary Uses and Structures Exempt Development Code.

In addition to these provisions, exempt development must still meet certain requirements or standards under the Building Code of Australia (Codes SEPP, cl 1.16).

2. General development without consent [5.300] Development that does not need development consent is not necessarily exempt development. If it is not exempt development, approvals under other legislation may still be required, and so Part 5 of the EPA Act may apply (see Chapter 6) .

Development permitted only with consent [5.310] Development permitted only with consent may be either complying development or general development requiring consent (through lodgement of a development application, usually with a local council as the consent authority) . Development requiring a development application may be further categorised as State significant development, designated development, advertised development or integrated development. The development application process is examined at length in [5.330]; the various categories or types of development requiring consent are considered briefly here.

Complying development [5.320] An EPI may identify development, or a class of development, that can be addressed by specified predetermined development standards as complying development (s 76A(5)). The primary EPI that identifies complying development is State Environmental Planning Policy (Exempt and Complying Development Codes) 2008.

Certain development cannot be identified as complying development, for example, if it is on land that is critical habitat or that is identified in an EPI as an environmentally sensitive area, or on land where there is a protected item of environmental heritage (Codes SEPP, cl 1.17A). Clause 3.2 and Schedule 3 of the Standard Instrument make provision for complying development. As was the case with exempt development, an LEP that contains complying development provisions is overridden by the Codes SEPP (cl 1.9(1)); however where an LEP specifies additional (ie a wider scope of) complying development its operation is not affected by the SEPP (cl 1.9(9)). Such development must be permissible in the relevant zone and must meet certain requirements or standards under the Building Code of Australia.

[5.340)

chapter 5 Development

Complying development is discussed further in [5.610].

Designated development [5.330] Designated development is development which requires consent that is declared to be designated development by an EPI or the regulations (s 77 A).

An environmental impact statement must accompany an application in respect of designated development (see [5.680]). In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, the NSW Court of Appeal held that an application was "in respect of' designated development where a "not insignificant part" of the development could be so categorised. Objectors have a right of third-party appeal (see (2.350]) to the Land and Environment Court if the consent authority grants consent, unless the application is determined by the consent authority after a public hearing held by the Planning Assessment Commission (s 98(5)) (see [5.2290]).

What development is designated development? [5.340] Clause 4(1) of the Environmental Planning and Assessment Regulation 2000 provides

that development described in Part 1 of Schedule 3 is designated development for the purposes of the Act unless it is excluded by a provision of Part 2 or 3 of that Schedule. Development is also sometimes identified as designated development in SEPPs (eg, SEPPs 14 and 26: see (14.370] and [14.430]). It is rarely designated in LEPs. A direction issued under section 117(2) of the Act on local plan making states that a planning proposal must not designate development unless it is likely to have a significant impact on the environment. The list of designated development contained in Schedule 3 of the Regulation covers development such as heavy industry with high pollution potential and other development capable of producing significant environmental impacts such as:

• livestock intensive industries (eg, feedlots and piggeries) • extractive industries • coal and many other mining operations • marinas with facilities for more than a certain number of vessels • aircraft facilities.

Most of the definitions are based on the size of the development and/or its proximity to environmentally sensitive areas, such as watercourses. The common element is the potential risk the activities listed pose to the environment, and the concern they arouse among nearby residents (Penrith City Council v Waste Management Authority (1990) 71 LGRA 376 at 381). However, depending on the capital investment value and intensity of the development, it may be declared to be State significant development (see [5.2700]) and it then ceases to be designated development (s 77A(2)). In Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, the NSW Court of Appeal held that once it was determined or conceded that at least part of the subject development fell within one of the categories listed within Part 1 of Schedule 3 to the Regulation, then that part was designated development. The Court held that it

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would be contrary to the intent of the legislation to hold that an activity which fell within one of the categories listed in Part 1 of Schedule 3 should necessarily lose that character because it only formed part of a greater development or was not the main purpose of the development in respect of which the application has been made. However, this decision needs to be read in the light of clause 37A of Schedule 3, which was subsequently added in 2007. This provides that development of a kind specified in Part 1 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. Clause 35 of Schedule 3 to the Regulation provides that development involving alterations or additions to development (whether existing or approved) is not 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 (that is the development together with the additions or alterations) compared with the existing or approved development. Clause 36 sets out matters that the consent authority is to consider in forming its opinion under clause 35. See Bora/ Resources (Country) Pty Ltd v Clarence Valley Council [2009] NSWLEC 81.

[5.400]

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• Protection of the Environment Operations Act 1997 (ss 43(a), (6), (d); 47, 48, 55, 122: environment protection licence) (see [9.670]) • Roads Act 1993 (s 138) • Rural Fires Act 1997 (s lOOB) • Water Management Act 2000 (ss 89, 90, 91) (see [14.1150]). When a development application is made for integrated development and the application indicates on its face that an approval is required, the consent authority must forward a copy of the application to the authority required to give that approval under the other legislation (the approval body) within 14 days after receiving the application (Environmental Planning and Assessment Regulation 2000, cl 66(2)). The approval body may request additional information from the consent authority, which may in turn request that information from the applicant (cl 67).

Electing to have development dealt with as integrated development

State significant development and infrastructure [5.350] Legislation enacted in 2011 to repeal Part 3A of the EPA Act came into operation on

1 October 2011. New special procedures were introduced to deal with development and infrastructure classified as State significant. These are discussed in detail at [5.2690]-[5.2780] of this chapter. See also Chapter 3 ([3.460]).

[5.380] There is a question whether an applicant can elect whether or not development should

be treated as integrated development. The courts have made apparently conflicting decisions on this matter (see Maule v Liporoni [2002] NSWLEC 25; Motbey v Hollis [2003] NSWLEC 40; Azzopardi v Gosford City Council [2002] NSWCA 234; Gunning Sustainable Development Association Inc v Upper Lachlan Council [2005] NSWLEC 23 ).

Decision-making by the approval body

Advertised development [5.360] Advertised development is discussed at [5.1040]. It is development requmng development consent that is specified in the regulations, an EPI or a development control plan. It

also includes any development for the purposes of a scheduled activity under the Protection of the Environment Operations Act 1997 (see [9.670]) that is not designated development or State significant development. Particular public notification requirements apply to development applications for advertised development.

Integrated development [5.370] Provisions relating to integrated development were introduced by the EPA Act with the intention of streamlining the development assessment process. Integrated development is development that requires development consent, other than State significant development, and also requires at least one approval, permit, licence, authority or consent under any of the following legislation (EPA Act, s 91):

• Fisheries Management Act 1994 (ss 144,201,205,219) (see [19.20]) • Heritage Act 1977 (s 58) (see [17.310]) • Mine Subsidence Compensation Act 1961 (s 15) (see [18.710]) • Mining Act 1992 (ss 63, 64: mining lease) (see [18.180]) • National Parks and Wildlife Act 1974 (s 90: Aboriginal impact permit) (see [20. 730]) • Petroleum (Onshore) Act 1991 (s 9: production lease) (see [18.1090])

[5.390] If an approval body proposes to grant any approval, it must inform the consent

authority of the general terms of that approval within 40 days of receiving the application. If the development application requires public notification (see [5.1100]), that period is extended to 21 days after the approval body receives copies of any submissions made to the consent authority or is told that there are no submissions (ss 91A(2), 92(2); cl 70(1)).

If information has been requested from the applicant, the time limit can be extended (see cl 109). Furthermore, a consent authority can have regard to an approval body's general terms of approval even if they are provided after the expiry of the relevant period (cl 70(3)). If the approval body informs the consent authority that it will not grant approval, development consent must be refused (s 91A(4)). If the approval body fails to inform the consent authority or Minister whether or not it will grant approval, or what the general terms of the approval are, the consent authority or Minister may determine the development application. In this situation, the approval body must give its approval to the proposal in terms consistent with the development consent (s 91A(5)). The applicant has three years from the date of the granting of the development consent to seek approval from the approval body (s 93).

Appeals [5.400] On appeal, the Land and Environment Court is not bound to refuse an application for development consent because an approval body has decided not to gra:-it its approval or has failed to inform the consent authority whether or not it will grant its approval. The court may also grant a development consent that is inconsistent with the general terms of approval of an approval body (Land and Environment Court Act 1979, s 39(6A)).

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Nonconforming uses [5.410] Nonconforming use provisions, protecting previous uses of land against new regulatory initiatives, are discussed in general terms in Chapter 1. Part 4, Division 10 of the EPA Act contains detailed provisions in relation to existing and continuing uses; these place significant qualifications on the system of environmental planning control. They not only protect lawful uses current at the time a new EPI is made but allow for modifications to be carried out, provided that development consent is first obtained. The rationale for existing use rights and the provisions giving effect to them is that it is unjust to deprive an owner of the right to use land for an existing purpose (Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; see [5.420] below).

In interpreting these provisions, the courts have to balance demands for the protection of private property against the public interest in a well-planned environment. The general approach has been to favour private property interests (North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344; RCM Constructions Pty Ltd & Maycot Pty Ltd v Ryde City Council [2004] NSWLEC 266). This is despite the fact that the version of nonconforming use protection introduced by the EPA Act in 1979, and in subsequent amendments, suggests that the underlying objective of the legislature has been to "squeeze out" nonconforming uses in the public interest (Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366). The Court of Appeal has commented that existing use rights are more a privilege than a right (Vanmeld Pty Ltd v Fairfield City Council (1992) 75 LGRA 374). One significant difficulty for those who want to rely on existing use rights is that the burden of proof lies on them (Fatsel Pty Ltd v ACR Trading Pty Ltd (No 3) (1987) 64 LGRA 177; Warringah Shire Council v Sedevic (1987) 63 LGRA 361; Penrith Waste Services Pty Ltd v Penrith City Council (1998) 101 LGERA 98; Auburn Council v Nehme (1999) 106 LGERA 19).

Existing uses [5.420] What happens when a new EPI completely prohibits certain development, but land is currently being used for those purposes? The Act attempts to compromise between the legitimate expectations of the occupants and the public interest in implementing the objectives of the new EPI. If the new EPI allows the site to be used for purposes that increase its market value, there is an incentive for the occupant to give up the current use. But where the site is zoned for purposes that reduce the market value of the land, the current use is more likely to continue. The question is, how far should the law go in bringing pressure on the current use in order to ultimately achieve the objectives of the EPI?

Section 106 of the EPA Act defines an existing use as: (a)

a use of a building, work or land for a lawful purpose immediately before the EPI that prohibits that use came into force, or

(b)

use of a building, work or land: (a)

for which development consent was granted before the commencement of the provision of the EPI that prohibits the use, or

(b)

that has been carried out, within one year after the date on which the provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse (see [5.2440]) .

[5.420)

chapter 5 Development

Section 107(1) provides that nothing in the Act or an EPI prevents the continuance of an existing use, but section 107(2) provides that this does not authorise:

•

any alteration or rebuilding to or rebuilding of a building or work, or

• any increase in the area of the use made of a building, work or land from the area actually • • •

physically and lawfully used immediately before the coming into operation of the EPI, or any enlargement or expansion or intensification of the use, or the continuance of the use in breach of any consent in force under the Act, or the continuance of the use therein mentioned where that use is abandoned.

Intensification of use may include such changes as an increase in production, or the rate of extraction of materials in an extractive industry (see Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197), or an increase in the hours of operation of a business (South Sydney City Council v Houlakis (1996) 92 LGERA 401) . It is well-established that section 106 is not concerned with the identity of the user but rather with the nature of the use of land: Greengate Consulting (NSW) Pty Ltd t/as Greengate Property Group v Ashfield Municipal Council [2008] NSWLEC 253; see also House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79; Daniel v Manly Municipal Council (1975) 34 LGRA 14; PD Mayoh Pty Ltd v Burwood Municipal Council (unreported, Land and Environment Court, NSW, Bignold J, No 40275 of 1989, 11 February 1991); Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252; Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59. In Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23, Biscoe J in the Land and Environment Court re-affirmed that the existing use provisions in the Act are designed to permit continuation of a use of land for the purpose for which it was used immediately before a later regulation that prohibited it wholly or partly or upon conditions. His Honour noted that the rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose and, therefore, the existing use provisions should be as liberally construed as the language in its context allows. See also Royal Agricultural Society (NSW) v Sydney City Council (1987) 61 LGRA 305; Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Dorrestijn v SA Planning Commission (1984) 59 ALJR 105; 54 LGRA 99. The definition in section 106(a) needs to be carefully applied to the facts of each case. In Keay v Wollongong City Council [2008] NSWLEC 243, Jagot J in the Land and Environment Court held that section 106 did not apply where a special provision in the applicable EPI prohibited the erection of a replacement dwelling-house on the relevant land but did not in terms prohibit the continuance of the use of the existing dwelling-house on the land. It has been held that an existing use only exists during the period when an EPI has the effect of prohibiting the use. If a use was prohibited under an EPI which is now no longer in force, and the current EPI makes it permissible with consent, then it is no longer an existing use (See BYT Nominees Pty Ltd v North Sydney Council [2008] NSWLEC 164; Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252).

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[5.430)

Description of the existing use [5.430] The courts are concerned not to describe an existing use so broadly that the land or premises can be used for a purpose that was not part of its use when the prohibition commenced. The purpose of an existing use is therefore usually described broadly enough to cover the activities that were lawfully carried on at the relevant date, but not so broadly as to permit other activities: Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359. In some cases it has been held that the use is construed broadly, at a general level rather than a specific one (eg, a community facility rather than a childcare centre) (Ashfield Municipal Council v Armstrong [2002] NSWCA 269; Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37; Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 67 LGRA 344). It follows that where material is being extracted or mined as an existing use, the ultimate purpose to which the material won through extraction or mining is put is irrelevant (Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197 per Lloyd J). Where the lawful use is described by a development consent, the existing use is described by the terms and conditions of the development consent (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25). In Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198, this led Lloyd J to find that a development consent for development described as "use of existing warehouse building for the warehousing/storage and distribution of alcoholic goods" could only give rise to existing use rights limited to warehousing/storage and distribution of alcoholic goods and not the broader genus of warehousing and distribution of goods generally.

Use for o lawful purpose

[5.470]

chapter 5 Development

"abandoned" (s 107(2)(e)). The onus of proof lies with those alleging abandonment (King v Lewis (1995) 88 LGERA 183; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423). The existing use is presumed to be abandoned if it ceases for a continuous period of 12 months (s 107(3 ). However the statutory presumption is rebuttable by proof to the contrary. In this regard, continuation of the existing use, even in a minor way, may be sufficient. For example, in MeritonApartments Pty Ltd v Fairfield Council [2004] NSWLEC 423, the predominant use of a caravan park for long-term residents when the lawful existing use was for short-term visitors did not mean abandonment of the existing use.

If the physical use of the land for the purposes of the existing use is interrupted, it does not necessarily mean that there has been abandonment. Where physical use has ceased, the courts will examine the actual intentions of the occupant. However, while a subjective intention to continue an existing use is a relevant factor, it is not by itself sufficient to rebut the presumption of abandonment. In Hudak v Waverley Municipal Council (1990) 70 LGRA 130, for example, premises had lawfully been used as a residential flat building after which time the premises were left unoccupied and allowed to deteriorate for a number of years. The owner of the premises claimed that it was his intention to restore the premises to a habitable state and have them occupied again after certain other problems, including personal problems, were resolved. The Court of Appeal held (at 137-138) that " ... [if] years go by without actual use and particularly where the factor said to be delaying a resumption of the existing use is something of an indefinite character ... there would be little difficulty in concluding that the cessation of use for a similar period of time involved an abandonment". In Woollahra Municipal Council v Banool Developments Pty Ltd (1973) 129 CLR 138; [1973] HCA 65, the High Court held that the making of a development application to change an existing use does not indicate an intention to abandon the existing use if the evidence shows that the intention of the applicant was to continue the existing use should the development application be refused. See also Woollahra Municipal Council v TAJ] Investments Pty Ltd (1982) 49 LGRA 123; Dosan Pty Ltd v Rockdale City Council [2001] NSWLEC 252.

[5.440] Section 106(a) of the EPA Act defines an existing use to be "the use of a building, work or land for a lawful purpose". For a use to be for a lawful purpose, the use need not have been lawful under the general law as long as it was not prohibited by planning law (Sydney City Council v Ke-Su Investments Pty Ltd (No 2) (1983) 51 LGRA 186; Durable Building Products Pty Ltd v Sutherland Shire Council [2000] NSWLEC 233; Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323; Meriton Apartments Pty Ltd v Fairfield Council [2004] NSWLEC 423).

In Caltex Australia Petroleum Pty Ltd v Manly Council (No 2) [2007] NSWLEC 350, Pain J held that abandonment had been established in circumstances where the applicant had taken action which prevented the resumption by it or anyone else of the existing use without a further development consent being obtained and it had sought to sell the subject property for a use other than the existing use.

A use would be unlawful if, at the time it commenced, the use was permissible with consent but consent was not obtained (Hastings Municipal Council v Mineral Deposits Ltd (1981) 43 LGRA 198; Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323).

Changing on existing use

Some uses will be lawful because they commenced before there was any relevant planning regime in place.

[5.460] The EPA Act allows that regulations may make provisions for existing use, including the carrying out of alterations and extensions; change from an existing use to another use; and enlargement, expansion or intensification (s 108).

Modifying the existing use

Abandonment [5.450] The Act provides that an existing use can be continued in spite of the fact that it is prohibited by an EPI (s 107(1)). However, the existing use right is lost forever if it is

[5.470] Provided that development consent is first obtained, an existing use may be modified on the existing site (Regulation, cll 41- 44). It can be:

• enlarged, expanded or intensified, or

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•

[5.480]

altered or extended, or

• rebuilt.

There is no limitation on the size, extent, scale or degree of the change for which consent may be granted (Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243; Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74 ). For example, in Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74, the Land and Environment Court held that rebuilding allowed the replacement of an existing structure with a new structure not limited by considerations of degree, size, character or design. The Land and Environment Court has published a planning principle setting out considerations that may be relevant to the assessment of development applications involving changes to an existing use (see Fodor Investments v Hornsby Shire Council [2005] NSWLEC 71; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587).

Changing an existing use to another use [5.480] The Regulation provides that an existing use may be changed to another use, provided that the other use is not prohibited and consent is obtained (cll 41(l)(d), 45).

In two situations, development consent can even be sought to change the use to one that is prohibited (cll 41(1)(e), 41(1)(f)):

[5.510]

chapter 5 Development

because neither demolition nor subdivision involve the use of land for the purposes of EPA Act section 106. See also Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; [1974] HCA 34; Smith v Randwick Municipal Council (1950) 17 LGR (NSW) 246. In considering whether development consent is required for a change of use, the impact of the proposed new use may be relevant: North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd (1989) 67 LGRA 344. In Grace v Thomas Street Cafe Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359, the Court of Appeal held that use of a premises for a milk bar could not be changed to a use for a cafe. In coming to this conclusion, the Court considered that the cafe had a much greater impact on the neighbourhood with respect to noise, traffic and parking.

Seeking consent [5.490] There are no specific limits placed on the discretion to be exercised in determining whether consent should be given, other than those that apply to all Part 4 consents (see [5.1180)-(5.1230)) (Ashfield Municipal Council v Armstrong [2002] NSWCA 269; Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74).

It is possible to apply for development consent and still intend to continue the existing use of the premises if the application is refused (see [5.1500)).

• changing one commercial use (office, business or retail) to another • changing one light industrial use to another, or to a commercial use.

If consent is granted, the surrender of an existing use can be made a condition of development consent (s 80A(l)(b)).

However, these exceptions to the general position that consent cannot be sought for a prohibited use are very restricted. For example, any alterations must be minor and there must not be an increase of more than 10% in the floor space of the premises associated with the existing use (cl 41(2)). A change in use must also comply with any development standards in applicable EPis (Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58).

Area of on existing use

What constitutes a change to the existing use for these purposes? For example, can an existing use change through an evolution of the use over time, avoiding any need to obtain development consent? In Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37, the High Court indicated that where the proper characterisation of an existing use is, for example, "professional offices", a change in the profession practised by the person occupying them would not amount to a change of use, but the situation would be different in the case of a shop: that is, a proposal to turn a greengrocers into a butcher's shop would probably amount to a change of use. In Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 25, Pain Jin the Land and Environment Court dealt with a development described in the development consent as commercial premises involving several different specific uses identified in the approved plans. Her Honour held that the proper characterisation of the existing use was commercial premises and a development consent authorising the change of a specific use covered by the approved plans did not amount to a change from one commercial use to another commercial use. As a result, the restrictions on changing one commercial use to another prohibited commercial use (cl 41(l)(e): see above) did not apply. In Wehbe v Pittwater Council [2007] NSWLEC 827, Preston J held that a development application for demolition of buildings or works and subdivision of land could not be characterised as seeking consent to change an existing use of the land to another use of the land

[5.500] The existing use provisions of the Act apply only to that area "actual~y phy~ically a~d lawfully used" immediately before the new plan was made. They do not authorise an mcrease m the area of the use made of a building, work or land (s 107(2)(6)).

Similarly, the provisions discussed above, which allow changes to existing uses with development consent, are limited to changes carried out on the land on which the existing use was carried out or the building or work erected (cll 42(2)(6), 43(2)(6), 44(2)(6)). Before these provisions were inserted into the EPA Act, two cases were authority for the position that, in certain circumstances, an existing use could extend to parts of the land not physically being used for that purpose. See Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 and Eaton and Sons Pty Ltd v Warringah Shire Council (1972) 1_29 CLR 270; [1972) HCA 33. If, for example, land had been acquired with a view to gradually usmg it for a particular purpose, such as mining, the whole area could be held to have been used for that purpose, even though the physical use only extended to part of it. Everything depended on the facts of the particular case. However, the Court of Appeal, in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 73 LGRA 366, held that those cases no longer represent the law under the EPA Act and that land held in reserve for some future activity cannot be said to be actually physically used within the wording of the legislation.

Amendments after the Vaughan-Taylor case [5.51 OJ The impact of Vaughan-Taylor has been qualified by amendments made to the EPA Act

in 1992. These provide that if a nonconforming use is lawful because of a development consent, development carried out in accordance with the terms of that consent is not affected by any

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subsequent EPI (s 109B). So, for example, if the development consent permits mining or quarrying over a wider area than that currently developed, the developer is entitled to develop that wider area in spite of any subsequent prohibition. The precise terms of the consent, therefore, are crucial. The 1992 amendments did not modify the impact of Vaughan-Taylor where the nonconforming use is lawful because the use has been continuously carried out before any planning controls covered the area (ie, not because of an existing development consent). The NSW government also responded to the decision in Vaughan-Taylor by introducing SEPP 37, which permitted mines and extractive industries to continue during a moratorium period while development consent was obtained. The moratorium has since expired and SEPP 37 has been repealed. (See also Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17.)

How much of a building or land is used? [5.520] How much of a building, work or land is physically and lawfully used? An existing use of land refers to the "land which from a practical point of view should be regarded as one piece of land or a unit" (Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389). In Starray Pty Ltd v Sydney City Council [2002] NSWLEC 48, the land concerned was being used as a car park and was held to be confined to the ground level. It did not extend underground. In Lemworth Pty Ltd v Liverpool City Council [2001] NSWCA 389, the unit of land on which a brothel was carried out was limited to the first floor of the building. However in Mona Vale Pty Ltd v Pittwater Council [2003] NSWLEC 74, the existing use rights for a retail shopping complex included the stratum below the surface of the land, and in Moore Development Group Pty Ltd v Pittwater Council [2003] NSWLEC 130, the use of a three-storey building for a motel was held to be carried out on each level of the building and to include a restaurant on the ground floor, because the motel and restaurant were physically interconnected and operated as one entity.

Existing use rights and development consent [5.530] As discussed above, nothing in an EPI prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force (s 109B; Mcllveen v Baiada Pty Ltd [2003] NSWLEC 174; Botany Bay City Council v Workmate Abrasives Pty Ltd (No 2) [2003] NSWLEC 166). In Caltex Australia Petroleum Pty Ltd v Manly Council [2007] NSWLEC 105, Pain J held that a use carried out under a development consent granted prior to the coming into force of an EPI that prohibits the use operates separately from the existing use rights regime so that the development consent holder does not have existing use rights in addition to the rights conferred by the development consent. But compare Currency Corporation Pty Ltd v Wyong Shire Council [2006] NSWLEC 692 where Biscoe J held that pevelopment that is carried out under a development consent that is in force is also an existing use if the applicable EPI prohibits the use authorised by the consent. This conflict in the case law has been recently resolved by the NSW Court of Appeal in Jojeni Investments Pty Ltd v Mosman Municipal Council [2015] NSWCA 147. The Court preferred the approach taken by Biscoe Jin Currency Corporation, making it clear thats 109B (which permits a person to continue to carry out development pursuant to a development consent even if a subsequent planning instrument prohibits the use of the land to which the consent related for that

[5.560]

chapter 5 Development

purpose) is subordinate to s 106 (which defines existing uses). It has held that a use pursuant to a development consent protected bys 109B may also be an existing use within the meaning of s 106 and afforded the existing use right protections under the EPA Act. Effectively, s 109B provides an additional protection for an existing use which is a use authorised by a development consent.

Existing consents [5.540] Suppose that a new EPI does not prohibit the purpose for which a building, work or land is currently being used, but imposes a new requirement for development consent. The law is that the requirement for development consent does not operate retrospectively. Nothing in an EPI operates so as to require consent to be obtained under the Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the EPI (s 109(1)). Accordingly, if the building, work or land was lawfully being used for the purpose immediately before the new EPI came into force (Steedman v Baulkham Hills Shire Council (No 2) (1993) 80 LGERA 323), there is no need for development consent for the continuing use (s 109(1)). The protected use has been misleadingly referred to as an "existing consent" to distinguish it from an existing use.

Where new development consent is needed [5.550] Section 109(1) does not allow (s 109(2)):

• any alteration or rebuilding to or rebuilding of a building or work, or • any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

• any enlargement or expansion or intensification of the use, or • the continuance of the use mentioned in breach of any consent in force under the Act, or • the continuance of the use where it is abandoned.

Section 109(3) provides that a continuing use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. For decided cases applicable to uses covered by section 109, see existing uses at [5.420]-[5.530].

Determining the area of continuing use [5.560] The protected shape and size of the continuing use is determined as at 5 February 1986, the date when the amendments came into operation (Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157; King v Lewis (1995) 88 LGERA 183). In addition, the protected continuing use right is lost if it is abandoned (EPA Act, ss 109(2)(e), 109(3)). Many of the classification difficulties raised in the context of existing uses by the case of Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 (see [5.480]) have been avoided by specific provisions in EPis. These make it absolutely clear that certain modifications to some uses do not

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need consent. For example, under clause 7 of State Environmental Planning Policy No 4 Development Without Consent and Miscellaneous Exempt and Complying Development (now repealed), in certain local government areas there was no need for consent for changes in the kind of shop being run or a particular type of commercial activity, regardless of the provisions of other EPis. The 1997 amendments to the Act which introduced the category of exempt development (see [5.320)) has resulted in an increase in the number of such provisions. Specific £Pis provisions removing the need for consent has subsequently grown extensively with the introduction of State Environment Planning Policy (Exempt and Complying Development Codes) 2008.

Development applications [5.570] The appropriate procedure for development applications depends on whether or not an application is for integrated development. Additional procedures also apply to:

• advertised development (see [5.1040]) • designated development (see [5.970]) • State significant development (see [5.2700]) • development requiring concurrence (see [5.850]).

Complying development is certified under a separate process (see [5.590]) and a development application is not needed for it. Development that is declared to be State significant infrastructure is dealt with under Part 5.1 and Part 4 of the Act does not apply (see [5.2750]).

Applications for more than one type of development

[5.610]

chapter 5 Development

Complying development may be carried out if (s 84A(l)):

• a complying development certificate has been issued, and • the development is carried out in accordance with the certificate and any provisions of an EPI, development control plan or the regulations. It is possible for building work that is complying development to proceed without any consideration by the local council and entirely through a series of certificates issued by a private accredited certifier (see [5.600]). In such circumstances, the only public access to information will be in the form of the register of complying development certificates kept by the council (cl 267).

Accredited certifiers [5.600] An accredited certifier is a person who is the holder of a certificate of accreditation as an accredited certifier under the Building Professionals Act 2005 (s 4(1)). Section 4 of this Act establishes an accreditation scheme which provides for corporate accreditation and individual accreditation in different accreditation categories.

Applications for complying development [5.610] An application for a complying development certificate may be made by the owner of the land or any other person with the consent of the owner (s 84A(2)). The information and materials the application must contain are listed in Part 2 of Schedule 1 of the Regulation (cl 126(1)(a)). The application may be made either to the council or to an accredited certifier. A decision must be made within the period prescribed by the Regulation, unless the applicant agrees to an extension (s 85A(8)). The time limit prescribed for determination is 10 days, or 20 days if it is a type of development that requires a notice to be given under clause 130AB (cl 130AA) .. The council or accredited certifier must consider and determine (s 85A(3)):

[5.580] A development application may be made in respect of one or more types of development as defined in the EPA Act (see [5.80]). For example, only one development application is needed for subdivision, the erection of buildings, and the use of those buildings for a particular purpose once they are constructed (s 78A(2)). In addition, if the consent authority is a council, the proponent may apply in the same application for development consent and some approvals required under the Local Government Act 1993 (s 78A(3)).

• whether the proposed development is complying development • whether the development complies with the relevant development standards • whether the development complies with any applicable standards and conditions for

In some instances, the developer may not wish to prepare detailed plans and specifications for building work until it is clear that the development as a whole will be permitted under the applicable zoning. In these circumstances, a developer can simply lodge a series of development applications for different aspects of a proposal.

•

complying development imposed by an LEP or development control plan. The council or accredited certifier cannot refuse to issue a certificate: on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in respect of that requirement in accordance with the regulations (s 85A(4)), or

• if the development complies with the applicable development standards and with other requirements prescribed by the regulations (s 85A(7)).

Complying development [5.590] The concept of complying development was introduced into the Act in 1997. Until then, all applications that required development consent were determined by councils, the Minister or another public authority (depending on the relevant EPI), and assessed on their merits. Complying development may now be approved, without any merit assessment, by a council or by an private sector accredited certifier (s 85A(6)) provided that it complies with specified predetermined development standards (see [5.630])

There is no right of appeal against a failure or refusal to determine an application for a complying development certificate (s 85A(10)).

If a complying development certificate is issued by an accredited certifier rather than the council, the certifier must forward to the council copies of the determination, any endorsed plans, specifications, any complying development certificate issued as a result of the determination, the record of inspection of the site of the development, and any other documents, within two days of the determination (cl 130(4)).

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Standards and requirements [5.620] The Regulation sets out development standards relating to fire safety and structural capacity for building work associated with a change of use of an existing building, or building work that involves alteration, enlargement or extension of an existing building (ell 131, 132).

• • •

Additional requirements ensure that: the work must be carried out in accordance with the Building Code of Australia and residential building work complies with the insurance requirements of the Home Building Act 1989 (see cl 98) the council is notified of the principal contractor or owner-builder (cl 98B) commitments listed in a relevant BASIX certificate (see [10.420]) for the development are fulfilled (cl 97A(2)).

Complying development certificates [5.630] A complying development certificate certifies that particular proposed complying development will comply with all applicable development standards and other requirements prescribed by the regulations if carried out as specified in the certificate (s 85(1)).

Imposing conditions on certificates [5.640] The council or accredited certifier may only impose conditions required by the regulations, EPI or development control plan and conditions requiring a monetary contribution for public amenities and services (s 85A(6), 85A(9); see [5.1890]-[5.2100]). The Regulation specifies a small number of conditions that must be imposed when a complying development certificate is issued (Part 7, Division 2A, ell 136A - 136N). Those conditions include requirements relating to: compliance with the Building Code of Australia and insurance requirements under the Home Building Act 1989

• • fulfillment of BASIX commitments • the removal of asbestos materials • any requirement for payment of security prior to commencement of work.

[5.660)

chapter 5 Development

application. Accordingly, a development application does not relate to adjoining land simply because it is expected that access over the adjoining land will be intensified as a result of the development (see also Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; Motbey v Hollis [2003] NSWLEC 40) or because work may be required to be carried out on other land under the conditions of consent to address the impacts of the development: see Farah v Warringah Council [2006] NSWLEC 191. Where a consent authority must give owner's consent to the making of a development application (where, eg, the council owns an adjoining road), and an appeal is lodged against the determination of the application, the Land and Environment Court has the power to grant owner's consent to the development application in place of the consent authority (Land and Environment Court Act 1979, s 39(2); Kogarah Municipal Council v Kent (1981) 46 LGRA 334; McDougall v Warringah Shire Council (1993) 80 LGERA 151; Sydney City Council v Claude Neon Ltd (1989) 67 LGERA 181; Shel/harbour Municipal Council v Rovili Pty Ltd (1989) 68 LGRA 231; Pimas Group Pty Ltd v Maritime Services Board of NSW (1994) 82 LGERA 205; Paino v Woollahra Municipal Council (1990) 71 LGRA 62; Gibson v Mosman Municipal Council [2001] NSWLEC 134; Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197). The case law on this point is thoroughly examined in Goldberg v Waverley Council [2007] NSWLEC 259. A development application made by a lessee of Crown land requires written consent granted by or on behalf of the Crown (cl 49(3)). A development application made in respect of land owned by a Local Aboriginal Land Council may be made by a person only with the consent of the New South Wales Aboriginal Land Council (cl 49(3A)). Public authority developers need only serve a copy of an application on the owner of land and do not require written consent (cl 49(2)). The predecessor of this provision was introduced in 1985 in order to deal with the position of public authorities seeking advance approval for large-scale developments, such as dams and transmission lines, which affect areas of land currently owned by a large number of private individuals.

Incomplete development applications

another person with the owner's written consent (s 78A(1), cl 49(1); King v Great Lakes Shire Council (1986) 58 LGRA 366; Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; Shel/harbour Municipal Council v Rovili Pty Ltd (1989) 68 LGRA 231); Cobden-Jones v Woollahra Municipal Council [2002] NSWLEC 2.

[5.660] If a development application does not substantially comply with the statutory requirements (such as the requirement for owner consent), it is incomplete and ineffective. However, the owner's consent can be supplied at any time before the determination of the application. If the defect in the application is remedied, it is regarded as having the same legal force and effect as if it had been validly made on the date of lodgement (Currey v Sutherland Shire Council [2003] NSWCA 300; Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; Rose Bay Marina v Minister for Urban Affairs and Planning [2002] NSWLEC 223; Hemmes Hermitage Pty Ltd v City of Sydney Council [2004] NSWLEC 539; Becton Corporation Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2005] NSWLEC 197).

In North Sydney Council v Ligon 302 Pty Ltd (1996) 91 LGERA 352, the High Court adopted a restricted interpretation of the land to which a development relates. The consent of the owner of adjoining land is not required unless the adjoining land is the subject of the development

The Regulation stipulates that a development application may be rejected by a consent authority within 14 days of lodgement, and lists the grounds of rejection (cll 51(1), 51(2)). Where a consent authority decides that a development application is to be rejected and not determined,

Making a development application [5.650] A development application may be made by:

• •

the owner of the land to which the development relates, or

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the applicant may request a review of this decision (s 82B). An application for review by a council must be made within 14 days of the applicant given written notice of the decision to reject and not determine the development application (cl 123H(l)). A council is deemed to have refused an application for review if it fails to determine the application within 14 days of lodgement (cl 123H(3)). A development application is taken never to have been made if it is rejected and the determination to reject it is not changed following any review (cl 51(3)).

Amendments to development applications [5.670] A development application may be amended by the applicant, but only with the agreement of the consent authority, at any time before the application is determined (cl 55). If a development application is amended, a fresh owner's consent is not required. The landowner is taken to have consented to the full development assessment process, including the provisions that authorise the amendment or variation of a development application by the applicant (Rose Bay Afloat Pty Ltd v Woollahra Municipal Council [2002] NSWLEC 208).

Information required [5.680] Part 1 of Schedule 1 of the Regulation specifies that a development application must contain certain information and be accompanied by certain documents. A statement of environmental effects is required for all development (s 78A(9); cl 50(1)(a)) except designated development and State significant development, which require submission of an environmental impact statement (ss 78A(8)(a), 78A(8A); Regulation, Sch 1, Part 1). Development relating to critical habitat or likely to significantly affect threatened species, populations or ecological communities, or their habitats, must also be accompanied by a species impact statement, unless the development application is for State significant development (s 78A(8)(b); Regulation, Sch 1 Part 1; see Chapter 12).

The development application must be accompanied by a fee as determined by the consent authority (cl 50(1)).

Environmental impact [5.690] Of particular importance is the information that must be provided to enable the environmental impact of a development to be assessed.

Statement of environmental effects [5.700] Even where a statement of environmental effects is required, it has been held that the failure by the applicant to include one in the development application will not invalidate a development consent: see Cranky Rock Road Action Group Inc v Cowra Shire Council [2006] NSWCA 339; McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209.

Designated development (5.710] In the absence of an environmental impact statement, an application in respect of designated development is ineffective and incomplete and not properly made (Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364; Helman v Byron Shire

[5.760]

chapter 5 Development

Council (1995) 87 LGERA 349; Builders Recyclers Investments Pty Ltd v Marrickville Council [2003] NSWLEC 331) and the failure to comply with the requirement will result in the ultimate invalidity of any determination (McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209).

Critical habitat or threatened species [5.720] Failure to comply with a requirement for a development application to be accompanied by a species impact statement will result in the ultimate invalidity of any determination (McGovern v Ku-Ring-Cai Council (2008) 72 NSWLR 504; [2008] NSWCA 209).

Reductions in water use and greenhouse gas emission [5.730] The Act and Regulation implement the NSW Government's scheme for new residential dwelling development to meet targets of a 40% reduction in water consumption and a 25% reduction in greenhouse gas emissions, compared with the previous average for a home. A development application for any BASIX affected development or the alteration, enlargement or extension of a BASIX affected building that contains more than one dwelling, must be accompanied by a BASIX certificate that has been issued no earlier than three months before the date on which the application is made (cl 164A; Sch 1, cl 2A).

The BASIX scheme is discussed in [10.420].

Residential apartments [5.740] A development application that relates to a residential apartment development must be accompanied by a design verification from the qualified designer of the development verifying that it conforms to design quality principles set out in Part 2 of SEPP 65 (Regulation cl 50(1A), l(AB), (lB); see [3.430]).

Staged development applications and consents [5.750] A developer undertaking a major long-term project may be unable to provide more than a general picture of the total development, and councils and the courts have often been reluctant to bind themselves to such proposals. This is because there is often insufficient information available to assess such things as environmental impact and other planning implications.

Case study: A resort built over 15 years [5.760] In Civil and Real Estate v Great Lakes Shire Council (1981) 46 LGRA 283, a development application was made for an extensive resort-type development combining vacation and residential facilities. It was estimated to cost between $100 million and $150 million, to be completed over a period of 15 to 25 years, proceeding gradually in accordance with market demand. The applicant conceded the lack of precision of the proposal, but argued that this was inevitable if it was to retain the necessary flexibility to meet changing market conditions. The Council rejected the application, and the Land and Environment Court upheld the decision. As far as the court was concerned, the proposal should have been divided into a number of stages, with a fresh development application being

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made for each. Although this procedure could create financing problems for the developer, these had to be set against the planning disadvantages of a blanket approval. The Council could not cope adequately with the situation by attaching conditions to a development consent.

Approving concept proposals and staged development [5.770] To deal with the problems created by large developments to be completed over many years, the ability to grant staged development consents was introduced in 1993 amendments to the EPA Act, consequent to the enactment of the Local Government Act 1993. This type of consent was continued in the 1997 amendments to the EPA Act (ss 80(4), 80(5)). Special provisions further facilitating the staging of development applications were introduced in 2005 (EPA Act Part 4, Division 2A, plus amendments toss 80(4) and 80(5)).

[5.830)

chapter 5 Development

Any subsequent development consent for a site cannot be inconsistent with a staged development consent already granted for that site (s 83D(2)) .

Modifying a staged development consent [5.800] Section 83D(3) provides that a staged development consent can be modified in accordance with the Act (see (5.2320)). Accordingly, it may be possible to modify the concept consent to accommodate changes to the development even after one or more stages have been completed. Such modifications would be subject to the usual requirements for modification of a consent.

Alternative to preparation of a development control plan [5.810] A staged development application can be made in circumstances where an EPI requires

the preparation of a development control plan (DCP; see (3.670]) before particular development is carried out on land. The staged development application satisfies the obligation for the preparation of the DCP if it contains the information which has to be included in the DCP (s 83C).

Staged development applications [5.780] An applicant can request that the application should be treated as a staged development application, which sets out concept proposals for the development of a site. Detailed proposals for separate parts of the site are to be the subject of subsequent development applications (s 83B). The application may set out detailed proposals for the first stage of development. Section 83B(2) provides that a development application cannot be treated as a staged development application under Division 2A unless the applicant requests that it be so treated.

The information that should be provided in relation to a concept proposal application will depend on the circumstances. It seems that the application must respond to all "relevant" matters critical to the site and the ultimate proposed use. For example:

• where traffic generation is important, the application must include information on the precise number of cars that will be accommodated on a site • where floor space is critical, the application should include the precise details of the proposal • where the major issue is the protection of vegetation, the footprints of the proposed buildings may be sufficient.

''Total" or "partial" development consents (5.820] A consent authority has the power to, in effect, grant development consents in stages even if the applicant has not requested it to do so (s 80(4)) . For under the legislation, the consent authority can grant consent for:

• the development for which the consent is sought, or • that development, except for a specified part or aspect, or • a specified part or aspect of that development.

The consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted, and development consent may subsequently be granted for that part or aspect of the development (s 80(5)) . See also Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687; CEAL Limited v Minister for Planning [2007] NSWLEC 302. Of course, if the applicant is dissatisfied with a decision by a consent authority not to grant consent to the entire development for which consent is sought, the applicant can appeal to the Land and Environment Court (see [5.2230]).

Effect of a consent to a staged development application [5.790] If consent is granted to a staged development application, the consent does not authorise the carrying out of development on any part of the site concerned unless (s 83B(3)}:

• consent is subsequently granted to carry out development on that part of the site following a further development application, or • the staged development application also provided the requisite details of the development on that part of the site and consent is granted without the need for further consent.

Who makes the decision? [5.830] In most cases of development that requires development consent under Part 4 of the EPA Act, the body responsible for making the initial decision (the consent authority} is the local council. However, there is nothing to stop an EPI from naming another consent authority, such as the Planning Minister or any other Minister, the Planning Assessment Commission, the Greater Sydney Commission, a joint regional planning panel or a public authority (s 4(1)).

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A joint regional planning panel may exercise the consent authority functions for councils in relation to development where this is specified in an EPI (s 23G(2); see State Environmental Planning Policy (State and Regional Development) 2011, Part 4 - Regional Development)). A list of the specific types of development for which regional panels may be authorised to exercise consent authority functions of councils is contained in Schedule 4A of the EPA Act, including: development that has a capital investment value of more than $20 million (EPA Act, Schedule 4A, cl 3)

• • specified types of private infrastructure and community facilities that have a capital investment value of more than $5 million (EPA Act, Schedule 4A, cl 6) • certain types of designated development, including extractive industries, marinas and waste management facilities (EPA Act, Schedule 4A, cl 8) • certain subdivision development in the coastal zone (EPA Act, Schedule 4A, cl 9).

The Minister is the consent authority for development classified as State significant (s 89D(l); see [5.2720)).

Major development in the City of Sydney (5.840] A slightly unusual position applies under the City of Sydney Act 1988. The Central Sydney Planning Committee may exercise the functions of the Sydney City Council under Part 4 of the Act in relation to major development (City of Sydney Act 1988, s 40). This includes (s 31):

• • •

development worth more than $50 million development that would not comply with an EPI if an unconditional consent were given development the committee has been requested to deal with by the Minister.

The committee has seven members, including two elected councillors and the Lord Mayor (s 34). It has the power to fast-track projects that need other authorisations in addition to development consent by setting time limits within which these decisions must be made. The committee can even give the authorisations itself if other bodies do not co-operate (ss 46 - 51).

Concurrence [5.850] Even where the local council is the consent authority, an EPI may provide that consent cannot be given unless the Minister or a public authority agrees to it - that is, unless concurrence is given (ss 30(2), 79B(l)). In other words, the council can reject the application purely on its own initiative, but if it wants to give consent, it must obtain co-operation from the Minister or public authority. If, however, an EPI makes the Minister the consent authority, and states that the Minister is required to obtain the concurrence of a person, the Minister is required only to consult with that person (s 79B(2)) and does not have to follow their advice. Consultation and concurrence requirements do not apply to State significant development unless specified in an EPI (s 79B(2A)).

If a consent authority (other than the Minister) grants a consent without obtaining concurrence, or the consent is not made subject to the conditions that the concurring body imposed, the development consent is voidable and may be set aside by the Court (s 79B(l0); see [5.2620)).

[5.880)

chapte r 5 Development

Concurrence requirements, including whether concurrence is required, who is responsible for giving concurrence and what they must consider, are usually imposed by an EPI. In the case of development on land that is critical habitat, or that is likely to significantly affect a threatened species, population or ecological community or its habitat, the legislation itself requires the concurrence of the Chief Executive of the Office of Environment and Heritage except where a Minister is the consent authority. In that case, only consultation between that Minister and the Minister administering the Threatened Species Conservation Act 1995 is required (s 79B(3); see [12.1130)). When deciding whether or not to grant concurrence, the concurrence body may consider only those matters listed in the relevant EPI and may grant concurrence (with or without conditions) or refuse it (s 79B(8)). Conditions attached to the concurrence must be reflected in the consent where the consent authority decides to grant consent (s 79B(9)). Recent amendments to the EPA Act in relation to threatened species requirements permit the Chief Executive of the Office of Environment and Heritage to grant concurrence conditional on the taking of specific action ("voluntary action") that is considered will significantly benefit threatened species conservation (s 79B(8A)). Voluntary action that can be required by a condition imposed under this provision consists of (s 79B(8B)):

• reservation of land under the National Parks and Wildlife Act 1974 or entering into a conservation agreement relating to the land • action to secure the protection of land for conservation purposes by a method that the Chief Executive considers satisfactory • action to restore threatened species on land • a monetary contribution to achieve any of the above purposes.

The concurrence body must give its reasons for imposing conditions or refusing concurrence (cl 63). It may also notify the consent authority in advance that its concurrence may be assumed in certain circumstances (cl 64).

Time limits [5.860] Where concurrence cannot be assumed, the decision must be made within 40 days, or, if the application has been publicly notified, 21 days after receiving copies of written submissions or notice that none were made (cl 62(1)). After that time, the consent authority can go ahead and give consent without bothering about concurrence (s 79B(ll)).

Appeals [5.870] On appeal, the Land and Environment Court may determine the appeal whether or not any relevant consultation has taken place or concurrence or approval granted. The Court may also vary or revoke any conditions imposed or that could have been imposed (Land and Environment Court Act 1979, s 39(6)).

Development by the Crow n [5.880] Special provisions for development undertaken by or on behalf of the Crown, and limiting the powers of local councils to refuse such development, were formerly contained in

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[5.890]

individual EPis. Amendments to the legislation in 1985 imposed uniform provisions in the EPA Act itself. Division 4 of Part 4 now applies to development by or on behalf of the Crown. The Crown includes (EPA Act, s 88(2)(a); cl 226):

• • • •

a public authority (other than a council) a public utility an Australian university

Delays and disputes [5.890] If the consent authority fails to determine a Crown development application within 70 days after a development application is lodged with the consent authority, the applicant or the consent authority may refer the application (EPA Act, s 89(2); cl 113B(l}}:

to the Minister, if the consent authority is not a council, or to the applicable regional panel, if the consent authority is a council.

The regional panel acts as a consent authority with respect to any application referred to it (ss 89(3), (4)) . Only if it fails to determine the application within 50 days can the applicant or the panel refer the application to the Minister (EPA Act, ss 89(2A), 89(5); cl 113(B)(2)). When an application is referred to a regional panel or the Minister, the consent authority must, as soon as practicable, submit (s 89(7)):

• • • •

a copy of the development application, and details of its proposed determination of the development application, and the reasons for the proposed determination, and any relevant reports of another public authority.

Where the application is referred to the Minister, he or she may direct the consent authority to approve the application, with or without specified conditions or to refuse it (s 89A(l)). If the consent authority fails to comply with the direction, it is taken, on the last date for compliance specified in the direction, to have determined the application in accordance with the direction (s 89A(3)). These provisions impose considerable restrictions on the powers of councils in relation to certain kinds of development. In practice, it is extremely difficult for a council to persuade the Minister to support it in refusing a development consent, although attempts are occasionally made. In most cases, the issue is about the conditions to be attached to the consent. Councils have some bargaining power, and many cases do not go to the Minister because developers are prepared to negotiate with councils about conditions. One important factor in this regard is the time it takes for any dispute to be resolved by the Minister.

Standards applying to building work by the Crown? [5.900] Crown building work is (s 109R(l}}:

•

chapter 5 Development

•

an activity under Part 5 of the EPA Act, by the Crown that comprises the erection or demolition of a building or work or incidental work.

Crown building work cannot be commenced unless it is certified by or on behalf of the Crown to comply with the technical provisions of the Building Code of Australia (s 109R(2}; cl 227). However, Ministers may, under section 109R(3), exempt buildings or classes of buildings for which they are responsible from a particular provision of the Code (ss 109R(3), 109R(4)).

a TAFE establishment.

Section 89(1) provides that councils must not refuse consent to such applications except with the written approval of the Minister, and must not impose a condition of consent except with the written approval of the Minister or the applicant.

• •

[5.930]

development (other than exempt development), or

Public participation [5.91 OJ Provisions for public participation depend on the type of development involved, the terms of applicable EPis and development control plans and the practice of the consent authority. There are specific provisions for public participation in relation to specific types of development applications, in particular:

• designated development (see [5 .970]) • State significant development (see [5.2700]) • advertised development (see [5.1040]) • other development (see [5.930]; [5.1120]). • development covered by section 342ZA of the Local Government Act 1919 (see [5.1130])

The requirements to give notice for each type of development are discussed in detail below.

Public hearings requested by the Minister [5.920] One of the functions of the Planning Assessment Commission is to review any development, activity, infrastructure or project (s 23D(l)(b)(ii)). It must conduct a public hearing (cl 268R):

• if requested to do so by the Minister or the Secretary, • if the review concerns a development under Part 4 that, in the Commission's opinion, may involve the need for an approval under the Water Management Act 2000 (see Chapter 14 ).

Public participation where there is no statutory requirement Council practice [5.930] If there is no specific requirement under the legislation for a council or other consent authority to give notice of a development application, an individual does not have a right to have their views considered unless the council or other planning authority has a practice of giving notice and considering submissions. Such a practice has been held to give rise to an obligation under the common law that notice will be given in the future (Hornsby Shire Council v Porter (1990) 20 LGRA 175; Hooper v Lucas (1990) 71 LGRA27; Somerville v Dalby (1990) 69 LGRA 422; Nelson v Burwood Municipal Council (1991) 75 LGRA 39; Lesnewski v Mosman

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Municipal Council [2005] NSWCA 99; compare Cooper and Wilton v Maitland City Council, unreported, Land and Environment Court, 19 May 1992).

Case study: J oinder [5.960] In Meriton Apartments Pty Ltd v Fairfield City Council (No 2) [2005] NSWLEC 121, the Residents Against Lansdowne Eviction Incorporated were given leave to be joined as a party to bring evidence of the social impact of the proposed closure of a caravan park. In Grosvenor Australia Properties Pty Ltd v The Council of the City of Sydney (2006) 147 LGERA 25; [2006] NSWLEC 270, Railcorp was joined as a party to proceedings where it had a particular knowledge of and concern about a major public infrastructure proposal potentially impacted by the erection of two residential tower blocks above a multi-level car-park. In Mirvac Projects Pty Ltd v Ku-ring-gai Council (2007) NSWLEC 113, an adjacent landowner was joined to the proceedings to raise an issue going towards the power of the Court to grant the application in question.

Case study: Procedural fairness [5.940] In Barton Securities Ltd v Warringah Council (2009) 170 LGERA 223; [2009] NSWLEC 179, the Council elected to go beyond its own notification policy and placed material on its website regarding the processing of the relevant development application. The applicant became aware from the website that owner's consent to the development application had not been properly given and requested the council to reject the development application, but made no submission objecting to the proposed development. The Council subsequently received information that satisfied its concerns regarding owner's consent but placed no further information about this on the website, nor any information to the effect that it had decided to process the development application further. It proceeded to grant consent. It was held that once the Council put information on its website, it created a legitimate expectation on the part of the applicant that further relevant information would become available to it, and the applicant was denied procedural fairness (see [2.380]) in that it was denied the opportunity to lodge an objection.

Participation in the Land and Environment Court [5.950] If a council rejects an application and the developer appeals to the Land and Environment Court, a neighbour may be invited to the court by the council as a witness to give evidence on such matters as the impact of the development on the amenity of the neighbourhood (see [2.350] ).

Designated development [5.970] If a proposed development falls into the very restricted category of designated development, anybody can make written submissions to the consent authority (s 79(5)). Anybody who makes an objection in such a submission can appeal on the merits (see [2.350]) to the court (s 98).

The consent authority must advertise proposed designated development. This must be done in each of three different ways. 1.

•

a person is able to raise an issue that should be considered in appeal proceedings, and can show that the issue would be unlikely to be sufficiently addressed if they were not joined as a party, or

2.

Someone joined as a party in this way has the right (subject to case management by the Court) to bring evidence and make submissions in the proceedings. They also have a right to appeal on a question of law arising out of the determination of the proceedings (Lowy v Land and Environment Court [2002] NSWCA 353).

3.

to those who appear to be owners or occupiers of adjoining land, if practicable, to other owners and occupiers of land that may, in the consent authority's opinion, be detrimentally affected if the designated development is carried out.

A notice must be placed on the land where -development is proposed (s 79(1)(c)). The notice must (cl 79):

• • • • •

it is in the interests of justice or the public interest that the person be joined as a party to the appeal.

In deciding whether to exercise its discretion to join the party, the Court will take into account matters such as the delay in the application, the likely strength of the issues sought to be raised and the undesirability of having a multiplicity of parties to proceedings (Pro-vision Developments Pty Ltd v Ku-ring-gai Municipal Council [2003] NSWLEC 226; Bongiorno Hawkins Frasetto & Associates Pty Ltd v Griffith City Council [2007] NSWLEC 205).

If the use or enjoyment of land may, in the council's opinion, be detrimentally affected by the proposed development, written notice must be given in accordance with the Regulation (s 79(1)(6); cl 78):

• •

Section 39A of the Land and Environment Court Act 1979 allows people to be joined as parties to an appeal if the Court is of the opinion that:

•

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be displayed on a signpost or board be clear and legible be headed DEVELOPMENT PROPOSAL in capital letters and bold type contain details required by the Regulation (cl 79(1)(e)) be capable, if practicable, of being read from a public place.

A notice must be published on at least two separate occasions in a newspaper (s 79(1)(d); cl 80). It must:

• • •

be large enough to appear across two or three columns in the newspaper' s display be headed DEVELOPMENT PROPOSAL in capital letters and bold type contain details required by the Regulation (cl 80).

The information that must be set out in the notices includes (cl 78):

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the name of the applicant a brief description of the application a notice saying where and when the application and the environmental impact statement required to accompany applications for designated development (see [5.680]) may be inspected.

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[5.1020)

written submissions, either for or against a proposal, during the exhibition period. If they object to the proposal, they must set out the reasons for their objection (s 79(5)).

Case studies: Public exhibition Failure to comply with requirements for public exhibition

Amending the application [5.980] It can happen that the designated development application is altered before the consent authority makes its decision, or is withdrawn and replaced by a new application that is substantially the same. In such a case the council does not have to go through the notice procedures again if, in its opinion, the applications differ in only "minor respects" (s 79(6)). This does not specifically deal with the slightly different situation where a council consents to a development application subject to a number of conditions that require alterations to the plans or further vetting by the council (see [5.1560]).

Case studies: Amendment of a development application [5.990] In Woodhouse v Wyong Shire Council (No 2) [2006] NSWLEC 83, Cowdroy J in the Land and Environment Court concluded that there did not need to be any further notification following the amendment of a development application for a poultry farm because there was no change to the nature of the proposed activity, the proposed physical structure was largely consistent with the original proposal and the detrimental effects were substantially reduced. In Barca v Wollondilly Shire Council (2014) 205 LGERA 454, an environmental impact statement was subsequently amended after the making of a development application, but was not exhibited in accordance with s 79(1). Pepper J noted (at [49]): It was uncontentious that the effect of s 79(1) and (6) of the EPAAis that if an original development application (which includes the material accompanying that application) has been exhibited in conformity with s 79(1) and is later amended, the consent authority may dispense with the further exhibition of the amended application if the consent authority is of the opinion that the amended application differs "only in minor respects from the original application" (s 79(6)). Otherwise, the amended development application must be re-exhibited in accordance withs 79(1).

See also [5.1010] below.

Public exhibition [5.1000] The development application and any accompanying information must be exhibited for at least 30 days following the first newspaper notice. Exhibition may be at public libraries as well as council offices. Anybody, whether or not they live in the area, can come to the exhibition and make extracts and copies of documents (ss 79(1), 79(4)). Members of the public can make

[5.1010] In Barca v Wollondilly Shire Council (2014) 205 LGERA 454, Pepper J referred to s 80(9) of the EPA Act, which relevantly provides that a consent authority must not determine a development application for designated development until after the submission period in s 79(1)(a) has expired. Her Honour found that the failure to comply with the exhibition requirements in s 79(1) - insofar as an amended environmental impact statement was not exhibited for the required public notification period - prohibited the council from determining the development application. Public notification, in accordance with the EPA Act, is a condition precedent to the valid exercise of the council's power to determine the development application. As it had not been satisfied, the determination of the development application by the council was invalid. Extension of submission period In Woolcott Group Pty Ltd v Rostry Pty Ltd [2015] NSWLEC 46, Preston CJ accepted at [59] that a consent authority has the power to extend the submission period for the purposes of s 79(1)(a) of the EPA Act. However, this power can only be exercised so as to extend the submission period universally for all persons and not differently for one or some persons. His Honour also noted at [59] that there is:

only one submission period for the purposes of s 79 of the EPA Act, although this one submission period is used under s 79 for two purposes: firstly, to fix the period during which the development application and accompanying information must be placed on public exhibition and be available for inspection by the public (ss 79(l)(a) and 79(4)) and, secondly, to fix the period during which the public may make written submissions to the consent authority with respect to the development application (s 79(5)). There cannot be one submission period for public exhibition and a different submission period for making public submissions.

Appeal and review [5.1020] Those who have submitted an objection to the proposal have a right of appeal to the Land and Environment Court, which makes a decision on the merits of the application. They must do so within 28 days after being informed of the council's decision (s 98(1)). The applicant has six months to decide whether or not to appeal (ss 97(1), 97(2), 97(3)). Amendments to the EPA Act in 1997 conferred on an objector to designated development a right to be heard at an applicant's appeal as if that person was a party to it (s 97(4)); however this right was removed in 2010 amendments to appeals under the EPA Act.

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Review by the Planning Assessment Commission [5.1030] Where the Planning Assessment Commission, carries out a review of a designated

development application directed by the Minister or the Secretary requiring a public hearing (s 23D(l)(b)), the applicant and any objectors are deprived of their appeal rights and the consent authority makes the decision (ss 97(7), 98(5), 80(6) - (7)). Copies of submissions made by objectors must be sent to the Director-General of the Planning Department, unless the Secretary has waived the requirement (s 80(9), 80(10)).

Advertised development [5.1040] The next special category of development that allows for some limited public

participation is advertised development. This is defined as development (other than designated development or State significant development) that is identified as advertised development by an EPI, regulations, or a development control plan. Advertised development also includes any non-designated development for the purposes of a scheduled activity at any premises under the Protection of the Environment Operations Act 1997 (EPA Act, s 4(1)). Since the introduction of the EPA Act, EPis have often contained provisions stating that some, but not all, provisions in the Act relating to designated development apply to specified development. These provisions were those relating to the giving of public notice, public exhibition of the development application, and the making of written submissions.

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or reduce, the prov1s10ns of the Regulation relating to advertised development (s 29A). Development control plans (DCPs; see [3.670]) can also identify development as advertised development provided that they make additional but not inconsistent requirements to those imposed by the Regulation (s 74C(l)(b)).

Notification [5.1100] Only adjoining owners and occupiers need be notified in wntmg of advertised development (cl 88(1)(a)), and there are no requirements as to where in the newspaper the published notice is to appear (cl 87(6)).

Submissions may be made for at least 30 days from the date the notice is first published in the newspaper (EPA Act, s 79A(l); cll 89(1)(d), 89(1)(e), 89(l)(f), 89(3)(a)) in respect of:

• nominated integrated development • threatened species development.

For other categories, the submission period is at least 14 days (cl 89(3)(6)).

Appeals [5.111 0] There are no third-party appeal rights in respect of advertised development.

Notification requirements in DCPs

Types of advertised development

[5.1120] The EPA Act envisages not only that DCPs can identify advertised development

[5.1050] The Regulation identifies a number of different types of advertised development

(s 74C(l)(b); see above), but also "provide for (or exclude) public or particular advertising or notification of . . . a development application for specified development" other than State significant, designated or advertised development (s 74C(l)(c)(i)). These provisions are binding on councils (s 79A(2)).

(cl 5(1)), and these are discussed below.

Nominated integrated development [5.1060] Nominated integrated development covers only selected classes of integrated development listed in [5.370] above, specifically development requiring a specified approval under (cl 5(1)(6)):

• the Heritage Act 1977 • the Water Management Act 2000 • the Protection of the Environment Operations Act 1997. Threatened species development

[5.1070] Threatened species development 1s development that reqmres preparation and consideration of a species impact statement.

Class 1 aquaculture development [5.1080] Class 1 aquaculture development 1s development under SEPP 62 - Sustainable Aquaculture (see [19.790]).

Compliance with the advertising and notification requirements of a DCP is sufficient to discharge the consent authority's obligation to afford procedural fairness (see [2.380]) in relation to notification of a development application (Sisic v Rockdale City Council [2007] NSWLEC 687; Hillpalm Pty Ltd v Tweed Shire Council [2002] NSWLEC 17; see also Vanmeld Pty Ltd v Fairfield City Council [1999] NSWCA 6). In Sisic, the Council was held to have afforded procedural fairness to an objector where letters notifying the objector of the relevant development application were shown to have been correctly delivered to the objector's postal address notwithstanding that the letters subsequently went missing without explanation and were not received by the objector. However, there will be a denial of procedural fairness if the notification provided by the Council or other planning authority does not provide adequate information regarding the development application (see Doueihi v Canterbury City Council [2003] NSWLEC 267; Trenwith v Sutherland Shire Council [2005] NSWLEC 143).

Development identified by an EPI or a development control plan

Local Government Act, section 342ZA

[5.1090] An EPI can contain provisions that identify development, other than designated

[5.1130] Section 342ZA of the Local Government Act 1919 was found in Local Government Act 1919 Part XIIA of that Act, which was repealed when the Environmental Planning and

development, as advertised development being provisions that add to or extend, but not replace

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Assessment Act 1979 came into force. Under clause 14(1) of the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980, section 342ZA continues in force, but only where a development application involves the provisions of "a former planning instrument" that is, a planning scheme ordinance or an interim development order made before the EPA Act was introduced. Where an LEP made under the EPA Act is involved, section 342ZA is replaced by the categories of advertised and designated development. Only a handful of former planning instruments remain in force in NSW, so few development applications are now affected by their provisions. In practice, section 342ZA only applies to the erection of residential flat buildings. These must be advertised in a similar way to designated and advertised development, but there are important differences (s 342ZA(l}).

Notification (5.1140] The first difference is that personal notification need only be given to:

• adjoining owners (not occupiers), and • owners whose enjoyment of their land may, in the council's opinion, be detrimentally affected. Councils have substantial discretion in identifying exactly who these people are. However, a greater onus is placed on councils here than in the case of designated or advertised development, because their obligation to inform owners who may be detrimentally affected is not qualified by the words "where practicable". Second, as with designated development, notice must be placed on the land concerned - not, for example, on telegraph poles close by (Donnelly v Marrickville Municipal Council (1973) 28 LGRA276). Finally, after these two kinds of notice have been given, notice must be published in a local newspaper. The notice must indicate that the development application is on exhibition for a period of 21 days (the period for designated development is 30 days). During this time, anybody can inspect the application at council offices during office hours (ss 342ZA(3), 342ZA(4)).

Objections (5.1150] Anybody can object to designated or advertised development, but considerable restrictions are placed on who can make written objections to development covered by section 342ZA. Only landowners, not occupiers, can object, and then only if a personal notice has been served on them or if they contend that their enjoyment of their land will be detrimentally

affected (s 342ZA(5}). Landowners who come within these provisions do not have the third-party appeal rights of objectors to designated development. They do, however, have greater rights than objectors to advertised development. If a council decides to reject a development application, and the developer appeals, objectors to development covered by section 342ZA have a right to be heard at the appeal as if they were parties to the proceedings (s 342ZA(7)). In other words, they do not have to rely on the council calling them as witnesses. Normally their only role in these

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proceedings is establishing the detrimental effect of the development on their enjoyment of their land. Yet it seems that where the council plays only a passive role in the proceedings (eg, where it has delayed making a decision and, as a result, is deemed to have refused the application), the court may allow the objector to launch a general attack on the proposed development on the broadest principles of town planning and urban design (Parangool v North Sydney Municipal Council, unreported, Land and Environment Court, 4 May 1982).

Reodvertising (5.1160] Where the development proposed is changed because the council has attached conditions to the development approval the courts have required readvertisement under section 342ZA only "when revised plans are not being dealt with pursuant to the original application, but pursuant to a new application" (Cambridge Credit Corporation Ltd v Parkes Developments Pty Ltd (1974] 2 NSWLR 590). In a later case (IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62), this was interpreted as meaning that readvertisement is needed only when the "reasonably minded potential objector" would object to the development as amended by the conditions attached to the development consent.

Errors in advertising (5.1170] The Land and Environment Court has held that the notification requirements of the Environmental Planning and Assessment Regulation 2000 are mandatory. In Johnson v Lake Macquarie City Council (1996) 91 LGERA 331, the notice of a development application for designated development stated that the period for public exhibition and submissions was 14 days, instead of the 28 days required by the Regulation. Justice Stein had regard to section 5(c) of the EPA Act, concerning the Act's object of the promotion of public involvement and participation in environmental planning and assessment, and held that strict or substantial compliance with the Regulation was required. Substantial compliance might have been achieved if the notice had specified one or two days short of the required period, but on these facts the statutory purpose was unfulfilled. The consent granted by the council was held to be invalid.

A failure to comply with notification requirements led to similar results in Levenstrath Community Association Inc v Tomies Timber [2000] NSWLEC 95, Curac v Shoalhaven City Council (1993) 81 LGERA 124 and De Haas v Williams [2004] NSWLEC 15. This approach is consistent with the courts' usual insistence on strict compliance with procedural requirements for the making of EPis (Leichhardt Municipal Council v Minister for Planning (1992) 78 LGERA 306; Smith v Wyong Shire Council (2003] NSWCA 322), and draws support from the statement of objectives in the Act. In a leading case on breach of notification requirements (Lesnewski v Mosman Municipal Council [2005] NSWCA 99) the Court of Appeal was unwilling (but did not need) to decide whether a consent is invalid because notification requirements have not been strictly complied with. However, the court held that if a failure to comply amounts to a breach of the rules of procedural fairness (see [2.380]), such a consent could be invalid. Where the Minister is the consent authority, consents are given additional protection (s 102). The only requirements of the legislation that are mandatory are those relating to the minimum period for public exhibition (s 102(c)).

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Making the decision What must be considered? [5.1180] Section 79C of the EPA Act sets out the factors consent authorities must take into account when making decisions under the Act. This includes:

• local councils • joint regional planning panels (s 23G(2)(a)) • the Planning Minister (or the Planning Assessment Commission under delegation from the Minister (s 23D(l)(a)) • the Land and Environment Court (Land and Environment Court Act 1979, ss 39(2), 39(4)). It has been held that section 79C does not exclude consideration of other relevant matters, including any matter that, in the public interest, relates to the objects of the Act as set out in section 5 (Carstens v Pittwater Council (1999) 111 LGERA 1).

•

Section 79C(l) now lists five broad matters for consideration: the provisions of any of the following that apply to the land to which the development application relates:

• any EPI (see [5.1270]) • any proposed EPI that is or has been the subject of public consultation and that has been notified to the consent authority (see [5.1300]) • any development control plan (see [5.1310]) • any planning agreement or draft planning agreement that the developer has offered to enter into (see [5 .2110]) • any matter prescribed by regulations (see [5.1330]) • any coastal zone management plan within the meaning of the Coastal Protection Act

• • • •

1979 (see [14.810]) the likely impacts of the development, including environmental impacts on both the natural and built environments and social and economic impacts in the locality (see [5.1340]-[5.1430]) the suitability of the site for the development (see [5.1440]) any submissions made in accordance with the Act or the Regulation (see [5.1460)) the public interest (see [5.1480]). These factors are considered in detail below.

Section 79C obliges consent authorities to take into consideration those matters specified in that section that are relevant to the subject of the application (Parramatta City Council v Hale (1982) 47 LGRA 319), otherwise there will be grounds for judicial review (see [2.360]-[2.540]), and the development consent could be declared invalid. The terms of s 79C(1) are mandatory (Weal v Bathurst City Council (2000) 111 LGERA). A failure to take into account a matter under section 79C can only vitiate a decision if the consent authority was bound to take it into account when determining the application (Noble v Cowra Shire Council [2001] NSWLEC 149; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40). Elaborating this point, in Teys

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Australia Southern Pty Ltd v Burns (2015) 206 LGERA 186, a case, involving the interpretation of a "proposed instrument" ins 79C(l)(a)(ii), Pain] held that "a decision to give no weight to an issue is a legally different concept to a failure to take a mandatory matter into account. A matter can be taken into account, even though it is afforded no weight" (at [62]). The matters listed in s 79C(1) are not exhaustive. It sets out the matters that a consent authority must take into consideration, but does not exclude from consideration other matters which may be relevant to the particular application that furthers the objects of the EPA Act (Carstens v Pittwater Council (1999) 111 LGERA 1). While s 79C(1) is silent on what other matters a consent authority may take into account, it does not mean that if a consent authority takes into account matters outside those prescribed in s 79C, that an error of law will have automatically occurred (SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65). Materially misleading statements that are considered by the consent authority in the assessment of a development application have the capacity to vitiate its decision (see, for example, the comments of Biscoe J in Sharples v Minister for Local Government [2008] NSWLEC 328). However, such statements will not vitiate a consent authority's decision if the evidence shows that it nevertheless properly discharged its duty under section 79C (Moorebank Recyclers Pty Ltd v Liverpool City Council [2009] NSWLEC 100).

What weight is given to each factor? [5.1190] The legislation does not indicate what weight must be given to each factor, so long as they are all considered, when relevant. There is also no rule that says that if the development proposal fails on any particular factor, consent must be denied (Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 356). There is nothing to say that factors should be given equal (or any) weight when it comes to making the final decision. They simply have to be duly considered where they are relevant. To determine a development application without proper consideration of those matters is an error of law that would vitiate the decision. Some cases have applied a test of "proper, genuine and realistic" consideration (see, for example Weal v Bathurst City Council (2000) 111 LGERA 181; Ai v Newcastle City Council [2003] NSWLEC 123; Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725; see also Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472). Recently, however, the NSW Court of Appeal has expressed its reservations regarding the use of that test (Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23; Belmorgan Property Development Pty Ltd v GPT Real Estate Ltd [2000] NSWCA 171 ), and has said that the requirement is that the relevant matter under section 79C must be more than merely adverted to or given mere lip service: Anderson v Director-General, Department of Environment and Climate Change [2008] NSWCA 337. See generally, [2.360]-[2.540].

Duty to consider imposition of conditions [5.1200] The duty to consider relevant matters under section 79C(l)(b) involves the duty to consider not only the likely impacts on the natural and built environments and social and economic impacts in the locality, but available protective or mitigating measures. In this regard, the conditions to be included in the consent are an integral part of the consideration (Weal v

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Bathurst City Council [2000] NSWCA 88; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23). In Weal, the court said that the relevant duty is to balance possibly competing interests, including the public and private interests in preventing harm to the environment and the public and private interests in permitting gainful use of the land. In Kindimindi, the council had issued a development consent for a shopping centre near a school containing numerous conditions but not a requirement that a new drop-off facility be constructed to promote pedestrian safety in relation to the school. The requirement for the drop-off facility was included in a deed between the council and the developer. The Court of Appeal held that the consent should have contained a requirement for the construction of the drop-off facility. It was not properly contained in a private deed alone.

Power of decision-makers [5.1210] Ultimately, the decision-maker can, on the merits of a particular application, legally make what is generally recognised as being a bad decision. The law will not intervene on these grounds and the decision will stand, except where a right of appeal on the merits is provided by legislation and the decision is reversed on appeal.

Limits on discretion Is the development permissible with consent [5.1220] The threshold question for a consent authority is whether a proposed development is permissible with consent under the relevant EPI, and not prohibited. This question is determined by properly characterising (that is, classifying) the proposed development under the EPI (see [2.300]). In Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, the Court of Appeal held that such characterisation was a jurisdictional fact, which, on appeal, the Land and Environment Court must determine for itself. The court said that the issue was one of statutory construction, not opinion.

Development standards [5.1230] A council or accredited certifier cannot exercise discretion to refuse an application for a complying development certificate if the development complies with the applicable development standards and regulations (s 85A(7); see [5.590]). Even where development is not within the category of complying development, there may be non-discretionary development standards in relation to which the discretion of the decision-maker is restricted (s 79C(2); see [5.1280]).

Accreditation is another limitation. A consent authority must not refuse to grant consent to development on the ground that any building product or system relating to the development does not comply with a requirement of the Building Code of Australia if the building product or system is accredited in accordance with the regulations (s 79C(4)).

Giv ing consideration t o a development application [5.1240] Many cases deal with the question of whether a consent authority has given proper consideration to the matters in section 79C (and the former s 90). A wrong assessment of the

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relevant section 79C considerations in planning terms does not mean that there has been a failure by the consent authority to take relevant considerations into account (see Brunetto v Collector of Customs (1984) 4 FCR 92). Furthermore, the correctness or incorrectness of a conclusion reached by the consent authority is irrelevant if the decision it reached based on the section 79C considerations is reasonably open to it (Broad Henry v Director-General of the Department of Environment and Conservation [2007] NSWLEC 722). In King v Bathurst Regional Council [2006] NSWLEC 505 (at [63]) Jagot J said that there was a "world of difference between justifiable opinion and sound opinion". Whether an opinion is sound or not "is not a question for decision by a Court". A distinction has been drawn between the way in which matters are taken to be considered by Ministers and councils. If a ministerial or departmental official has knowledge of a matter, the Minister is taken to know it (see Carltona Ltd v Commissioners of Works [1943] 2 All ER 560), but if only one council officer knows something, it is not taken to be known by the elected councillors who must determine an application as a collegiate body (Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401). However, it has been held that, in the absence of evidence to the contrary, documents contained on a council's files are presumed to be documents in the possession of the councillors (Parramatta City Council v Hale (1982) 47 LGRA 319; Somerville v Dalby (1990) 69 LGRA 422; Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74; Gee v Council of The City Of Sydney [2004] NSWLEC 581; Notaras v Waverley Council [2007] NSWCA 333). Of course, when matters are directly before the council at the time it grants consent, it can be inferred that the council knew of them (Houlton v Woollahra Municipal Council [1998] NSWLEC 188). Section 79C does not require the councillors to individually pursue every element of a development application; they are entitled to rely on conclusions drawn by qualified officers such as engineers and town planners, and it is open to the councillors to accept or reject such conclusions (Hill v Woollahra Municipal Council [2003] NSWCA 106; Friends of Malua Bay Inc v Perkins (2014) 203 LGERA 14). The benchmark set by the Court of Appeal for councillors dealing with development applications is that "the fair-minded observer will expect little more than an absence of personal interest in the decision and a willingness to give genuine and appropriate consideration to the application, the matters required by law to be taken into account and any recommendation of council officers" (McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; 161 LGERA 170 at [80]).In Zhang v Canterbury City Council [2001] NSWCA 167, a commissioner in the Land and Environment Court failed to specifically consider a requirement of a development control plan that a brothel should not be located within 200 metres of a church or school. The Court of Appeal held that this was a breach of the Act. The commissioner had substituted a different approach, namely that the adverse impact on the affected land arising from the presence of a brothel had to be demonstrated in the proceedings before him. See also Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA226. In Hill v Woollahra Municipal Council [2003] NSWCA 106, the court said that explicit reference to the instrument would help confirm that the body did address the right question, but the absence of such reference did not of itself indicate that it had not. The court said that when a court came to consider whether or not such a breach had occurred, the court would have regard

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to the presumption of regularity. See also Minister for Natural Resources v NSW Aboriginal Land Council (1987) 62 LGRA 409; Morris v Kanssen [1946] AC 459; Western Stores Ltd v Orange City Council (1971) 23 LGRA 191. The courts take a different approach where the question is whether the consent authority has the legal power to grant development consent. That question will arise, for example, if an EPI prohibits consent being granted unless the consent authority is satisfied as to one or more specified matters. In Manly Council v Hortis [2001] NSWCA 81, the NSW Court of Appeal held that the court will not presume that a consent authority has fulfilled a requirement that is an essential prerequisite to its power to grant development consent. The court must determine this for itself. In that case, a clause in an LEP provided that the council could not grant consent to development unless it was satisfied that the development would not have a detrimental effect on the amenity of a foreshore scenic protection area. The court held that it could be inferred that council did not consider the clause because there was no reference to it in the minutes and no evidence was called at the trial that the clause had been considered. See also Frank/ins Ltd v Penrith City Council [1999] NSWCA 134; Skouteris v Auburn City Council [2005] NSWLEC 207; Clifford v Wyong Shire Council (1996) 89 LGERA 240; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Hastings Point Progress Association Inc v Tweed Shire Council [2008] NSWLEC 180; Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69.

Planning principles [5.1250] Since 2003 the Land and Environment Court has developed its own planning principles. A planning principle comes about when a decision explicitly sets out particular criteria that should be applied when making a future decision about a situation that occurs frequently. Usually the planning principle outlines a series of steps that should be applied in assessing the situation and making the decision. The aim is to enable councils and developers to understand the approach which will ordinarily be applied by the Court, and to enhance the capacity of those advising councils and developers to predict the approach likely to be taken.

Currently there are around 40 published planning principles, including, for example, those dealing with:

• what regard should a consent authority give to the principles of ecologically sustainable development (BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399) • the adequacy, and location, of allotted communal open space in a development (Seaside Property v Wyong Shire Council [2004] NSWLEC 600) • the compatibility of a proposal with the surrounding development (Project Venture Developments Pty Ltd v Pittwater Council [2005] NSWCA 108) • the extension of trading hours and the increase in the number of patrons allowed on licensed premises (Vinson v Randwick Council [2005] NSWLEC 142) • existing use rights and assessment of merits in a redevelopment proposal (Fodor Investments •

v Hornsby Shire Council [2005] NSWLEC 71; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587 application of the precautionary principle (Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; see pp 10-12)

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• access to sunlight (The Benevolent Society v Waverley Council [2010] NSWLEC 1082) • assessment of height, bulk and scale (Veloshin v Randwick City Council [2007] NSWLEC 428) • solar access for allotments in residential subdivisions (Wallis & Moore Pty Ltd v Sutherland Shire Council [2006] NSWLEC 713) • views - general principles (Tenacity Consulting v Warringah Council [2004] NSWLEC 140).

Case study: Consistency of decision-making? [5.1260] Planning principles are not legally binding (Segal v Waverley Council

(2005) 64 NSWLR 177; Stromness Pty Ltd v Woollahra Municipal Council [2006] NSWLEC 587). Tellingly, in Segal v Waverley Council, Tobias JA in the Court of Appeal stated that (at [95]-[96]}: I am in no way convinced that in the context of adversarial proceedings in the Land and Environment Court, there is any place for the so-called principle of consistency in administrative decision-making. As I have observed . . . above, that concept is more appropriately applied to true administrative decision-making at the level of executive or local government. It has no application to adversarial proceedings where the merits of any particular application depend upon the facts and circumstances of the case and the substantive issues joined between the parties. My only qualification to the foregoing, at least in the context of environmental planning, is that consistency in the application of planning principles is, clearly, a desirable objective.

Environmental planning instruments [5.1270] The provisions of relevant EPis must be looked at when assessing development applications (s 79C(l)(a)(i)). The consent authority is bound to consider which provisions in an EPI are relevant (Noble v Cowra Shire Council [2001] NSWLEC 149; Parramatta City Council v Hale (1982) 47 LGRA 319).

The Land and Environment Court has held that a provision of any relevant EPI must be given determining weight (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472). In many cases, an EPI requires the consent authority not to grant consent unless it is of the opinion that the development is generally consistent with one or more of the objectives of the plan and one or more of the objectives of the zone within which the development is proposed to be carried out. In Hunt v Blacktown City Council [2001] NSWCA 216, the NSW Court of Appeal held that such a requirement does not prohibit development, but places a limit on the power of the consent authority to grant consent. A development is regarded for legal purposes as consistent with the objectives of a zone if it does not conflict with them. It is not necessary to demonstrate that a development promotes or is ancillary to the objectives, nor even that it is compatible with them (New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154; see also Coffs Harbour Environmental Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185).

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Development standards [5.1280] Decision makers should consider any development standards in the EPI. Nondiscretionary development standards are those identified as such in an EPI or the Regulation (s 79C(6)). If a development complies with such a standard, the decision-maker must not (s 79C(2)):

• take the standard into further consideration in determining the application • refuse the application on the ground that the development does not comply • impose a condition that has the same effect as the standard but is more onerous.

If a proposed development does not comply with development standards, the decision-maker has more discretion. Clause 4.6 - Exceptions to development standards - of Standard Instrument LEPs, or SEPP 1 in the case of other EPis, may permit flexibility in the application of those development standards (see [3.180]; [3.400]).

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Appeal considered a draft LEP containing a transitional provision that said that the plan did not apply to a development application made but not finally determined when the plan came into force. The court held that such a provision did not force the consent authority to ignore otherwise relevant provisions of the draft instrument. The court commented that, if an application was brought under a pre-existing instrument and would substantially undermine the draft instrument's purpose, the draft instrument should be given significant weight in deciding whether to reject the application. See also Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC279. The language used in a particular savings clause is important (see: Alamdo Holdings Pty Ltd v Hills Shire Council [2012] NSWLEC 1302; Maygood Australia Pty Ltd v Willoughby City Council [2013] NSWLEC 1127). However, the adoption of a standard savings provision under the Standard LEP (cl 1.8A- Savings provision relating to development applications) should result in greater uniformity of interpretation of the effect of these provisions.

[5.1290] EPis may require consideration of other special matters relating to the development. For example, there may be special matters to be considered where access to a site is through a junction or intersection with a main road (Environmental Planning and Assessment Model Provisions 1980, cl 10(2)).

Even if particular EPis have not reached this stage, the courts held that they could still be taken into account as one of the "circumstances of the case" under the former section 90(1)(q), and may also be taken into account as an element of the public interest under section 79C(l)(e). The importance attached to them depended on the court's estimate of how likely they were to be eventually placed on public exhibition (Silverton v North Sydney Municipal Council, unreported, Land and Environment Court, 23 July 1982; Fridrich Constructions Pty Ltd v Leichhardt Municipal Council, unreported, Land and Environment Court, 23 December 1982).

Draft EP/s

Development control plans

Consideration of other matters

[5.1300] In addition to considering EPis that have been finalised, the consent authority must also take into consideration any proposed EPI of which it has notice has been subject to public consultation, unless the Director-General of the Planning Department has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved (s 79C(l)(a)(ii)). In this context, proper consideration of the proposed instrument means that the consent authority may give weight to the fact that provisions in the instrument will come into force (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA289).

A failure by the consent authority to take into consideration the prov1s10ns of a draft instrument is a failure to discharge the obligation imposed by section 79C(l)(a)(ii) and any decision on the development application will be invalid (Centro Properties Pty Ltd v Albury City Council [2005] NSWLEC 721; Centro Properties Ltd v Hurstville City Council [2006] NSWLEC 78; Belmore Residents Action Group Inc v Canterbury City Council [2006] NSWLEC 530). The Land and Environment Court has held that, under section 79C, a consent authority must take into consideration an exhibited draft LEP that would prohibit development that was the subject of a development application. However, while the draft LEP was significant to the decision, it was not necessarily determinative of it (Novara Crescent Pty Ltd v Sutherland Shire Council [2004] NSWLEC 403). In many cases, draft instruments contain savings and transitional provisions - that is, provisions governing the changeover period between outgoing and incoming EPls. In Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289, the NSW Court of

[5.1310] Development control plans (see [3.670]) must also be considered (s 79C(l)(a)(iii)). Unlike EPis, DCPs are not legally binding, even though they might spell out planning policy and development standards in quite specific terms.

The statutory obligation is to have regard to an applicable development control plan, not to apply it correctly in a planning sense (McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209). This obligation precludes the consent authority from substituting a different planning approach or policy to that contained in the plan. In Zhang v Canterbury City Council [2001] NSWCA 167, the NSW Court of Appeal found that a Commissioner in the Land and Environment Court did not take into consideration provisions of a DCP as to where a brothel should not be located because he substituted for the statutory requirement a different policy approach. See also Botany Bay City Council v Premier Customs Services Pty Ltd [2009] NSWCA 226. A failure to apply the correct provisions of a DCP constitutes a failure to properly consider the plan and is an error of law (Wiggins v Pittwater Council [2006] NSWLEC 543). In Zhang v Canterbury City Council [2001] NSWCA 167, the Court held that a DCP had to be treated as a fundamental element in, or a focal point of, the decision-making process. In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472, McClelland J, Chief Judge of the Land and Environment Court, set out the approach to be taken to consideration of DCPs under section 79C. A DCP adopted after consultation with interested persons, including the affected community, would be given significantly more weight than one adopted with little or no community consultation. Further, a DCP that had been consistently applied by a council would

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be given significantly greater weight than one that had only been selectively applied. Finally, if it could be demonstrated that a DCP brought about an inappropriate planning solution, especially an outcome which conflicted with other policy outcomes adopted at a State, regional or local level, it would be given less weight than a DCP that provided a sensible planning outcome consistent with other policies. See also Andrews v Botany Bay City Council [2008] NSWLEC 96. Following 2012 amendments to the EPA Act which commenced in March 2013, the Department of Planning and Environment has sought to redefine the purpose, status and content of DCPs including to change the way a consent authority is to consider a DCP when assessing a development application. The amendments were made in response to developer and Departmental concern that "following a number of recent court cases, councils have felt obliged to treat DCPs as inflexible and rigid rule-books which must be consistently applied when considering development applications" (see Planning Circular PS 13-003 - Proclamation of certain provisions of EP&A Amendment Act 2012, p 1). Particular concern was directed to the courts' interpretation of the role of DCPs in Zang v Canterbury City Council and Stockland Development Pty Ltd v Manly Council. The objectives of the changes are to:

• reinforce the purpose and status of DCPs as guidance documents used in local planning decision-making, and • introduce flexibility in the way in which provisions in DCPs are applied by consent

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In Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 4 72, McClelland J said that when there is a relevant policy that is not a DCP, the weight to be given to it will depend upon a number of matters. If the policy has been generated with little public consultation and was designed to defeat a project that was known to be under consideration by a developer for a particular site, it may be given little weight. However, where controls have been carefully thought out after detailed consultation, but have not been included in a DCP, the council should make decisions that give them practical application. Unless there were good reasons, the council was also entitled to expect the court to require development to conform to the adopted policy. A council is entitled to be concerned about the risk of creating a precedent when it is being asked to depart from its consistently applied policy, and to refuse consent when it considers that the departure is unjustified (BP Australia Ltd v Campbel/town City Council (1994) 83 LGERA 274).

Matters prescribed by regulation [5.1330) Under the Regulation, certain councils are required to take the Government Coastal Policy into consideration in their decision-making, and all councils must take into consideration the provisions of Australian Standard 2601 when considering a development application for the demolition of a building (EPA Act, s 79C(l)(a)(iv); cl 92).

authorities when assessing development applications Amendments were made to DCP provisions in Part 3 of the EPA Act, as well as insertion of a news 79C matter for consideration (s 79C(3A) - Development control plans), to make clear the role of DCP provisions in development assessment. Under the changes:

• if a development application complies with the provisions of a DCP, a consent authority is not able to apply more onerous standards (s 79C(3A)(a)) • if a development application does not comply with provisions in a DCP, a consent authority

•

must be flexible in the way it applies the controls and also allow for reasonable alternative solutions to achieve the objectives of those standards (s 79C(3A)(b)) a consent authority may consider only the DCP's development standards in connection with the assessment of the particular development application before it (s 79C(3A)(c)). See also Chapter 3, [3.670].

Environmental impact [5.1340] Section 79C( 1 )(b) of the EPA Act requires the consent authority to have regard to: the likely impact of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality. Consideration must also be given as to whether there is likely to be a significant effect on critical habitat, or threatened species, populations or ecological communities, or their habitats, because a species impact statement must be prepared and considered if there is (ss SA, 78A(8)(b); see [12.1090]). Beyond these general obligations, there is a specific obligation to have regard to the register of critical habitat kept by the Chief Executive of the Ofice of Environment and Heritage (ss 5B(l), 5B(2)(a)). EPis may also impose requirements to consider particular impacts on the natural environment (eg, SEPP 44 - Koala Habitat Protection; see [12.900]).

Council codes and policies [5. 1320) Even if a council policy or code has not been made into a DCP (see [3. 700]), if it is a well-founded, detailed planning policy it can still be taken into consideration under section 79C(l)(e) (see [5.1480]) as an aspect of the public interest (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; Maxnox Pty Ltd v Hurstville City Council [2006] NSWLEC 146; F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 2) [2007] NSWLEC 537). In Bonaccorso, Biscoe J decided that the council's heritage policy was not written in terms which made it readily applicable to particular cases. It was simply "a general statement of council's desire to preserve items which are thought to have some heritage significance of varying degrees", and was not a document that the council was obliged to consider.

Ecologically sustainable development [5.1350) The meaning of ESD and the relevance of the precautionary principle is dealt with at length in Chapter 1 ([1.220]). As discussed there, it has been held by the Land and Environment Court that ESD principles must be considered as an aspect of the "public interest" (s 79C(l)(e)) in cases where issues relevant to those principles arise (Carstens v Pittwater Council [1999] NSWLEC 249 at [74]; BGP Properties Ltd v Lake Macquarie City Council [2004] NSWLEC 399 at [113]; Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 at [123]-[124]; Minister for Planning v Walker [2008] NSWCA 224 at [43], Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426; Gales Holdings Pty Ltd v Tweed Shire Council [2006] NSWLEC 85).

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Inter-generational equity

Measures to mitigate harm

[5.1360] One of the key ESD principles which has to be taken into account in development consent decisions is inter-generational equity. An important factor in this context is the assessment of the cumulative impacts of proposed activities on the environment. In Gray v Minister for Planning [2006] NSWLEC 720, Pain Jin the Land and Environment Court held that a failure to consider cumulative impacts would not adequately address the environmental impact of a particular development where often no single event could be said to have such a significant impact that it would irretrievably harm a particular environment, but cumulatively activities would harm the environment (see also Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12).

[5.1390] An earlier version of section 79C required the consent authority to consider not just the

The principles of ESD are interrelated in the environmental assessment of development. In Gray, for example, Pain J held that the approach to environmental assessment required by the application of the precautionary principle and inter-generational equity required the decisionmaker to have knowledge of impacts which were cumulative, ongoing and long term and recognised that in the context of climate change there was considerable overlap between the environmental assessment requirements to enable these two principles of ESD to be adequately dealt with.

Climate change

likely impact on the environment, but any means to protect the environment or mitigate the harm. In Parramatta City Council v Hale (1982) 47 LGRA 319, Justice Moffitt discussed the interpretation of this provision (although his views do not necessarily represent those of the Court of Appeal). He suggested that councils should find out about means to protect the environment, and would be wise to consider submissions on relevant environmental matters "particularly from experts" - even though there was a legal obligation to do this only in a limited number of situations (see [2.430]). Otherwise they risked a challenge based on the argument that due consideration had not been given to environmental protection. (See also King v Great Lakes Shire Council (1986) 58 LGRA 366.) This opened up back-door opportunities for public participation. But Justice Moffitt went even further. He suggested that councils would be well advised to gather information themselves, at least through their officers. In the reformulation of the factors to be considered in section 79C there is no requirement to consider ways to protect the environment or to mitigate environmental harm. This suggests that a consent authority may now be able to rely on information provided by the applicant or readily available to it. Assessment of the likely effects of development could be unnecessarily constrained unless such a requirement could be incorporated into a general consideration of "the public interest" under section 79C(l)(e).

[5.1370] Some important recent ESD cases have dealt with the consideration of the likely effects

of climate change on development (see, eg, Gray v Minister for Planning [2006] NSWLEC 720 (greenhouse gas emissions); Minister for Planning v Walker [2008] NSWCA 224 (increased risk of flooding), Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17 (increased risk of coastal erosion), Newton and anor v Great Lakes Council[2013] NSWLEC 1248 (reasonableness of climate change-related conditions of consent)). The Australian and international case law concerning the consideration of ESD and climate change particularly in a planning context, was comprehensively reviewed by Biscoe Jin Walker v Minister for Planning [2007] NSWLEC 741.

Brood scope of environmental impact [5.1380] The definition of environment (s 4(1)) includes not only the natural environment but also "all aspects of the surroundings of humans, whether affecting any human as an individual or in his or her social groupings". In addition, section 79C(l)(b) refers to impacts on both the natural and built environment. This includes impacts such as the implications of a development for traffic movement - for example, whether the road system in the area can cope with the traffic likely to be generated by it, and whether the means of access to it are adequate. They may also include the aesthetic impact on the landscape and scenery, and the relationship with other development on adjoining land or in the locality. This would involve considering the effects on views enjoyed by neighbours, their privacy, and their access to sunlight and ventilation. Size, bulk, the appearance and design of buildings, and effects on the health and safety of occupants may also be taken into consideration. The visual qualities of a neighbourhood can be damaged by buildings that are ugly or out of harmony with the surroundings.

Social and economic impacts [5.1400] The consent authority must take into consideration in so far as is relevant to the proposed development (s 79C(l)(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. What a consent authority may lawfully consider when considering the economic impact of development has been dealt with in a number of cases. The cases establish a general principle that the consent authority may not have regard to issues of commercial competition between a proposed development and businesses in a locality unless the effects of such competition are likely to produce an overall community detriment by adversely affecting the availability or adequacy of services or facilities: Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; AMP Investments Ltd v Newcastle City Council [1999] NSWLEC 164; Cartier Holdings Pty Ltd v Newcastle City Council (2001) NSWLEC 170. The classic formulation of the principle is that of Stephen J in the High Court decision in Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675 in the following terms (at 681):

If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However, the mere threat of competition to existing businesses, if not accompanied by a prospect by a

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resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. In Randall v Willoughby City Council [2005] NSWCA 205, Basten JA said (at [45)) that it is at least arguable that a broader construction of section 79C(1)(b) can be adopted than Fabcot and Cartier indicate.

Case study: Economic impacts [5.1410] The Court of Appeal's decision in Randall v Willoughby City Council

(2005) NSWCA 205 shows how in appropriate cases the direct and indirect economic impacts of the proposed development on the users of a facility and the developer can be considered. In that case, the appellant owned a lot and carpark within a building in Chatswood. The development consent for the lot required that free parking be provided to the public for the first two hours. The appellant applied to the council to modify the development consent to enable a charge to be imposed for the first two hours of parking. The application was refused by the Council and a Commissioner of the Land and Environment Court on appeal. The Commissioner held that the imposition of a fee would induce persons to park elsewhere, and maybe take their business elsewhere in the locality. The Court of Appeal upheld the condition. Basten JA said (at (38)-(39]): This was not a case in which either the purpose or the effect of the decision was or would be to interfere with market forces. No question arose as to the establishment of a new business which might compete with existing businesses. Rather, the question was whether the claimant should be entitled to charge for an aspect of its services for which it cannot now charge, because of the existence of a condition which the claimant assumed to have been validly imposed. In this situation it would not have been surprising if the claimant had sought to call evidence of the economic impact of the condition on its operations. But its present argument would appear to entail the conclusion that such evidence should not be considered. If a planning authority can impose a condition regulating the circumstances in which charges can be levied, it would be absurd to suggest it cannot consider the economic impact of imposing or varying such a condition. ... The imposition of a parking fee must have a direct economic impact on each person who thereafter uses the parking lot for a period of less than two hours, that being the period of free parking under the existing consent conditions. No doubt the impact on one individual would be dismissed as insignificant. However, the direct impact must properly be understood as applying to many individuals over an extended period of time. It has been held that whilst the economic viability of a proposed development might be relevant in a broad sense, it is not relevant in the sense of the profitability of the applicant's personal business (see Patra Holdings Pty Ltd v Minister for Land and Water Conservation (2001) 119 LGERA 231; (2001) NSWLEC 265).

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Socially incompatible uses [5.1420] Some uses may be socially incompatible with existing uses. A sex shop may offend a

large part of the community, and therefore not be permitted on planning grounds (Venus Enterprises v Parramatta City Council (1981) 43 LGRA 67), but there is a need for concrete evidence that people would be affronted. As Justice McClelland stated in Dennis v Parramatta City Council (1981) 43 LGRA 71: This Court is not a court of morals and its decision in a matter such as this must be based solely on planning and environmental considerations. There clearly are limits, therefore, as to how far the court will go. It is obviously not concerned with preserving the moral fabric of society, though it is concerned about the social impact of development. One area where this has been apparent is in respect of the social impact 1 locational compatibility and spatial concentration of licenced premises, hotels and liquor stores (see Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; Waugh Hotel Management Pty Ltd v Marrickville Council [2009] NSWCA 390; ]PR Legal Pty Ltd v Marrickville Council (2009] NSWLEC 1216; Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280).

Case studies: Interests of property owners [5.1430] The Land and Environment Court considered the meaning of "social and economic effect ... in the locality" in what was then section 90(1)(d) of the EPA Act on a number of occasions. The wording of that provision was almost identical to the current provision.

In IDA Safe Constructions Pty Ltd v Woollahra Municipal Council (1981) 48 LGRA 62, Justice McClelland said that a relevant factor was the likelihood that the proposed development would reduce the value of neighbouring units by interfering with views. In Bauer Holdings Pty Ltd v Sydney City Council (1981) 48 LGRA 356, Justice McClelland was faced with a motel development that would have resulted in the loss of an existing boarding house. He held that the decision-maker had to take into consideration that the development would result in a reduction of available housing stock for permanent residents, that there would be less accommodation in the locality for people on low incomes, that the existing use of the site as a boarding house was not economically viable and that, because of the age of the buildings, continuing expenditure would be required if they were to remain habitable. The interests of property owners were to be taken into account as well as those of low-income tenants. In the end, having regard to all of these matters, along with all the other relevant considerations spelt out in former section 90(1), the decision was reached that development consent should be granted.

In contrast, the court refused consent in Fridrich Constructions Pty Ltd v Leichhardt Municipal Council (unreported, Land and Environment Court, 23 December 1982). This involved a development application to carry out a strata subdivision of a residential flat building currently providing private rental accommodation to tenants in the low to moderate income group Although Senior Assessor Bignold, as he then was, followed the law laid down in Bauer's case

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(above), he did not find that the existing use was economically unviable. Considering also the increased demand for residential accommodation in the locality, causing upward pressure on rents and the removal from the area of long-term residents, he decided that the proposal was likely to have an adverse social effect in the locality. Taking this into account along with other relevant considerations under former section 90(1), the court rejected the application.

Is the site suitable for the development? [5.1440] The consent authority must consider in so far as is relevant "the suitability of the site for the development" (s 79C(l)(c)). In MCC Energy Pty Ltd v Wyong Shire Council [2006] NSWLEC 581, Jagot Jin the Land and Environment Court said (at [86]):

The phrase "suitability of the site for the development" operates at a high level of generality. Many facts may be relevant to questions of a site's suitability for various developments. Identifying those facts is a matter for the consent authority ... There may, for example, be safety factors associated with the land or it may be susceptible to flooding, subsidence, slip, contamination or bushfire. This may make development inappropriate or, at least, require that suitable precautions be taken. In Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, Jagot Jin the Land and Environment Court held that the council had to consider the presence of an endangered ecological community on the site in determining its suitability for the proposed development. In MCC Energy, the Court considered a consultant's report on the suitability of the relevant site and said (at [87]): The report described the site and its surrounds and the development in the introduction. The report considered the topography of the site and concluded that the proposed development represented an appropriate response to the constraints imposed by the slope of the land and the existing dwelling erected upon the land. The report considered the coastal nature of the development and the importance of maintaining visual amenity of the coastline. It analysed the neighbourhood character. It addressed the context and setting of the development in detail. The report concluded that the additions were consistent with the theme, scale and height of many other developments in the surrounding area and allowed the appearance and quality of the dwelling to be considerably improved along with the Elizabeth Drive streetscape in general. All of these matters constituted a consideration of the suitability of the site for the development. The impact of the development must be looked at: for example, would the development prejudice future agricultural production on prime agricultural land, or future use for mineral and extractive resources? Constraints imposed by adjacent development should also be considered.

Case studies: Conflict between existing and proposed development [5.1450] In Concrite Pty Ltd v South Sydney City Council [2001] NSWLEC 22 7, Justice Talbot in the Land and Environment Court held that new development should be expected to accommodate the impact of existing lawful development on

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adjoining or nearby land. In that case, the court held that future residential development would need to take account of and accommodate the impact of a batching plant. In Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd (1996) 90 LGERA 68, the council was dealing with an application for a residential subdivision adjacent to a large-scale poultry processing plant. The Court of Appeal held that where there is a fundamental incompatibility between a proposed development and that on an existing adjacent property, and it cannot be resolved by appropriate conditions, the development should be refused. In McIntyre v Pittwater Council [2000] NSWLEC 160, Justice Talbot considered a proposed development, part for industrial purposes and part for medium density residential purposes, located within a 400 metre buffer zone for the Warriewood Sewage Treatment Plant. This existing facility had significant odour impacts on the surrounding area. The court found that the land was not suitable for medium density housing development while the potential for odour impact from such a proximate location existed. Accordingly, his Honour held that the part of the site identified for residential development was not suitable for the intensity of residential development proposed by the applicant, whereas the part proposed for industrial purposes could be approved subject to finalisation of appropriate conditions of consent. In reaching this conclusion, Talbot J emphasised (at [54]) that the Court was: mindful of its responsibility to ensure that development unsuited to a particular location is prevented wherever that is preferable. This is such a case. In principle the court should not be a party to the creation of a situation in which basically incompatible land uses are juxtaposed, thereby avoiding the prospect of future conflict.

Submissions [5.1460] The consent authority must take into consideration in so far as is relevant "any submissions made in accordance with this Act or the regulations" (s 79C(l)(d)) . The occasions when public submissions must be invited, including designated and advertised development and State significant development, are discussed at [5.970]-[5.1110]; [5.2700]. It goes without saying that a failure by the consent authority to take a submission into consideration will render the consent authority's decision void (Nambucca Valley Conservation Inc v Nambucca Shire Council [2010] NSWLEC 38).

Case studies: Objections Opposition to a mosque [5.1470] In New Century Developments Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 154, the Land and Environment Court considered a development application to build a mosque that was the subject of many objections from local

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residents. The court held that when analysing public submissions, issues of taste and morality were not necessarily to be set aside when determining whether or not a development was appropriate (see Fairfield City Council v Liu Lonza & Beauty Holdings (unreported, NSW Court of Appeal, February 1997). Furthermore, the Court said that where a proposed development caused great offence to a large portion of the community, it could be legitimately refused on town planning grounds (see Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; [2000] NSWLEC 188). Nevertheless, the Court held that while the views of those who made submissions must be taken into consideration, there must be evidence that could be objectively assessed before a finding could be made of an adverse effect on the amenity of an area. A fear or concern without rational foundation was not a matter that, by itself, could be considered as an amenity or social impact under section 79C(l) of the Act (see Newton v Wyong Shire Council (unreported, Land and Environment Court, NSW, McClelland J, 6 September 1983); Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79; Perry Properties Pty Ltd v Ashfield Municipal Council (2000) 110 LGERA 345; [2000] NSWLEC 188). The cCurt, on the facts before it, held that as there was no evidence to support a rational fear, it was irrelevant for the purposes of section 79C that members of the community might have modified their behaviour because of such an unjustified fear. Mobile telephone base station

In Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 Preston J considered a development application for the installation of telecommunications equipment and a base station on the roof of a local recreational club. The application was the subject of significant community objection. His Honour found that the objections had no rational basis in science and held that they should be given little, if any, weight under section 79C(l)(d). His Honour said (at [192] et seq): In determining the nature and scope of amenity and the impact of a proposed development on it, the consent authority may consider the community responses to the proposed development as set out in the submissions made to the consent authority: s 79C(l)(d) and (e) of the [Act]

However, in considering the community responses, an evaluation must be made of the reasonableness of the claimed perceptions of adverse effect on the amenity of the locality. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect 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(l) of the [Act] .. . "Mere local prejudice" or "the resistance of uninformed opinion to innovation" is not a basis for rejecting a proposal ... In this case, the residents' perceptions of an adverse effect on the health and safety of residents and on the environment by exposure to RF EME emitted from the proposed base station are without justification in

chapter 5 Development

[5.1490)

objective, observable, likely consequences. The claimed effects are unsubstantiated and without reasonable evidentiary foundation ... In these circumstances, little, if any, weight can be given to the residents' perceptions.

The public interest [5.1480) The consent authority must take into consideration in so far as is relevant "the public interest" (s 79C(l)(e)). The concept of public interest is wide, and, when considering it, it is legitimate to consider the ultimate use to which a site is to be put (Patra Holdings Pty Ltd v Minister For Land And Water Conservation (2001) 119 LGERA 231; [2001] NSWLEC 265; see also Shoalhaven City Council v Lovell (1996) 136 FLR 58). When determining planning policies, or the public interest, a consent authority is not confined to statutory planning instruments (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289).

Community response to a proposed development, for example, can be regarded as an aspect of public interest. One of the express objects of the EPA Act is to provide increased opportunity for public involvement and participation in environmental planning and assessment (Kulin Holdings Pty Ltd v Penrith City Council (1999) 103 LGERA 402; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 126 LGERA 303; Telstra Corporation Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Martin Morris & Jones Pty Ltd v Shoalhaven City Council [2012] NSWLEC 1280). As previously discussed, the court has held that the application of ecologically sustainable development principles is a relevant consideration as an aspect of the public interest (see [5.1350]). It has been held that the precedent effect of a proposed development is a valid planning consideration (Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75). Nevertheless, the court has been cautious in applying the principle of planning precedent because the Act requires that each development be assessed on its particular planning merits (s 79C(l)) .

Case study: Considering the public interest [5.1490] In Patra Holdings Pty Ltd v Minister for Land and Water Conservation

(2001) 119 LGERA 231; [2001] NSWLEC 265, Justice Pearlman held that in determining a development application for the clearing of native vegetation, the public interest was a crucial factor to take into account. That was because clearing resulted in the permanent loss of native vegetation. Whether or not that was a desirable consequence from an environmental and planning point of view depended on many factors, and the public interest was a significant one. Accordingly, when the consent authority (or the Court on appeal) decides whether to grant or refuse consent to the clearing of native vegetation, it must balance the public detriment (the permanent loss of native vegetation) against the public interest (the objects of the

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EPA Act and other relevant legislation). The public detriment resulting from the permanent loss of native vegetation had to be balanced against the public interest in promoting native vegetation management in the economic interests of the State and the orderly and economic use and development of land. Justice Pearlman held that the economic viability of the proposed use of the cleared land could only be considered as an element of the public interest in this sense. The profitability to the applicant of the proposed land use, on the other hand, was not a relevant consideration.

Development consents

(5.1530]

chapter 5 Development

King v Minister for Planning [2010] NSWLEC 1102; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404; Auburn Council v Nehme [1999] NSWCA 383).

Reference to other documents to interpret o development consent [5.1520] Extraneous documents, such as the contents of the relevant development application, can only be relied upon to interpret a development consent where, and to the extent to which, they have been incorporated into the consent, either expressly or by necessary implication (Council of the City of Sydney v Pink Star Entertainment Pty Ltd [2008] NSWLEC 176; Owners Of SP 39204 v Sutherland Shire Council [2003] NSWLEC 255; Loreto NormanhurstAssociation Inc v Hornsby Shire Council [2002] NSWLEC 45; Woolworths Ltd v Campbells Cash & Carry Pty Ltd (1996) 92 LGERA 244; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404; Auburn Municipal Council v Szabo (1971) 67 LGRA 427).

Determination of a development application [5.1500] Section 80(1) of the EPAAct authorises a consent authority to determine a development

application by:

• • •

granting consent unconditionally granting consent subject to conditions refusing consent. In practice, development consent is nearly always granted subject to conditions.

Section 81 of the EPA Act requires a consent authority, in accordance with the Regulation, to notify its determination to the applicant and those who made submissions if the subject development is designated development or State significant development. It has been held that it is the decision of the consent authority made under section 80(1) and not the notice of determination that constitutes the consent authority's determination of a development application: Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333; [2007] NSWCA 38; Aldous v Greater Taree City Council (2009) 167 LGERA 13; [2009] NSWLEC 17. Development applications are frequently determined under delegation from the consent authority, particularly in the case of councils. In GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303, the NSW Court of Appeal considered a development consent granted by the general manager of the Council under a delegation that authorised the general manager to approve the application but did not authorise him to refuse development consent. The Court held that the function of determining a development application required either an unconditional or conditional consent or a refusal of consent and that to delegate to the general manager a power to approve only was a limitation on the nature of the opinion that could be formed and inconsistent with the statutory scheme.

The nature of o development consent [5.151 0] A development consent creates a right that attaches to and runs with the land to which it relates (Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97. See also

Deferred commencement consents [5.1530] Until amendments to the Act in 1993, the courts applied the general principle that all aspects of a development consent had to be final at the date the consent was granted. In some situations, where councils set conditions that, in essence, postponed consideration of substantial matters, the courts held that the decision did not amount to a consent because of lack of finality (Mison v Randwick Municipal Council (1991) 73 LGRA 349; Jungar Holdings v Eurobodalla Shire Council (1989) 70 LGRA 79; King v Great Lakes Shire Council (1986) 58 LGRA 366 at 384-385; Malcolm v Newcastle City Council (1991) 73 LGRA 356; Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 84-55; Leichhardt Municipal Council v Minister for Planning (1992) 77 LGRA 64). Alternatively, the courts declared a particular condition to be void for lack of finality (Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13).

The Act now provides that a development consent may be granted 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 consent (s 80(3)). The Regulation requires such a consent to be clearly identified as a "deferred commencement" consent and to distinguish the conditions that must be satisfied from other conditions (cll 95(1), 95(2)) . The consent authority may specify a period in which the applicant must produce evidence sufficient to satisfy the consent authority about the deferred matters (cl 95(3)). The imposition of deferred commencement conditions does not free a consent authority from its obligation to consider all relevant matters required by section 79C (G PT Re Ltd v Wollongong City Council [2006] NSWLEC 303; Weal v Bathurst City Council [2000] NSWCA 88; Cameron v Nambucca Shire Council (1997) 95 LGERA 268). The legal effect of a deferred commencement condition is to suspend the operation of the development consent, not to make the grant itself conditional (CSR Ltd v Fairfield City Council [2001] NSWLEC 221. See also Bezzina Developers Pty Ltd v Leichhardt Municipal Council [2006] NSWLEC 175). In Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243, the court held that, under section 80(3 ), a consent authority can express a

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conditional or qualified satisfaction in respect of the deferred commencement condition. It also held that in such circumstances, the applicant can treat that decision as expressing dissatisfaction, and then has a right of appeal (see [5.2230]).

Case studies: Deferred commencement consent [5.1540] In Weal v Bathurst City Council [2000] NSWCA 8 8, the NSW Court of Appeal held that, where there is a deferred commencement consent, a consent authority must still consider all relevant matters as required by section 79C (see [5 .1240]). Earlier, in Design/ink International v Baulk ham Hills Shire Council [1999] NSWLEC 218, Talbot J explained that the mechanism provided by section 80(3) is that although the consent authority may be satisfied that an applicant for development consent is entitled to a consent, that consent is not to operate until some matter external to the subject matter of the consent is satisfied. It does not allow a deferral of the decision to grant consent. See also Remath Investments No 6 Pty Ltd v Botany Bay Council (No 2) (unreported, Land and Environment Court, 11 December 1996). Nevertheless, the range of matters that may be specified in a deferred commencement condition is potentially wide.

WRF Property Pty Ltd v Armidale Dumaresq Council [2003] NSWLEC 223 involved judicial review proceedings against the grant of deferred commencement consent for a proposed shopping centre. The site was located in the Dumaresq Creek floodplain. The applicant successfully challenged one of the conditions in the consent which required that prior to the commencement of construction the ' applicant undertake a flood analysis of the site. The analysis had to demonstrate how floodway capacity would be retained within the site such that the Dumaresq Creek flood level upstream and downstream were not affected by changes to site levels. Talbot J held that the issue was not just that the Council had failed to finally resolve the form of the development. More importantly, and indeed critically, the condition disclosed that the Council neglected to inform itself specifically about the effect on flooding capacity. The Court was satisfied that the challenged condition left a material matter for future determination without any process in place that will ensure the achievement of the underlying purpose of the condition. If additional flooding capacity was required then provision for that capacity needed to be identified, designed and specified as a condition of consent. Until that point was reached and the council was satisfied with the result, the operation of the consent was suspended pursuant to s 25B of the Land and Environment Court Act 1979.

Partial consents [5.1550] Development consent can be granted for the development for which the consent is sought or a specified part or aspect of the development (s 80(4) - Total or partial consent), and consent may subsequently be granted for the remainder (s 80(5)). Referred to as "staged development consent" prior to the 2005 amendments to the EPA Act, the procedures for staged development applications may also apply (EPA Act, ss 83A- 83D); see [5.780]).

[5.1570]

chapter 5 Development

Imposition of conditions (5.1560] As previously discussed (see [5.1200]), the consent authority's duty to consider relevant matters relating to a development application under section 79C of the EPA Act involves the duty to consider not only the impact and likely harm to the environment but available protective or mitigating measures through conditions attached to the consent (Weal v Bathurst City Council [2000] NSWCA 88; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23; Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59). In appropriate cases, for example, conditions should address the precautionary principle (see [1.220]). For example, in Taralga Landscape Guardians Inc v Minister for Planning [2007] NSWLEC 59, Preston CJ in the Land and Environment Court held that conditions based on the precautionary principle should be imposed on a wind farm development to ensure the taking of measures to deal with any occurrences of threatened flora or native grasslands if they were discovered subsequent to or during construction of the development.

Section BOA of the Act sets out the types of conditions that can be imposed upon the grant of a development consent. In Hilltop Planners Pty Ltd v Great Lakes Council (2003) 127 LGERA 333; [2003] NSWLEC 214 it was held that the grant of a development consent is the exercise of a statutory power and not a power at large (see Zhang v Canterbury City Council [2001] NSWCA 167) and the EPA Act limits the conditions that can be imposed (see also Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85). In Hilltop, the Court held that a consent authority had no power to impose a condition under which a consent lapses because of failure to comply with the condition. The Regulation may set out conditions that must be imposed for particular developments (see [5.1620]). Conditions requiring contribution towards public amenities and services can only imposed under sections 94 and 94A (see [5.1890]).

Types of conditions [5.1570] The conditions which the consent authority can impose include (s BOA( 1) ):

• conditions relating to any matter referred to in section 79C(l) relevant to the development • conditions requiring the modification or surrender of a consent or an existing or "continuing use" right (see (5.420]-[5.560]) • conditions requiring the modification or cessation of development (including the removal of buildings and works) carried out on land (whether or not land to which the development application relates)

• conditions limiting the period during which development may be carried out • conditions requiring the removal of buildings and works at the end of the period during which development may be carried out • conditions requiring the carrying out of works (whether or not on land to which the application relates) relating to any relevant matter referred to in section 79C(l) • conditions requiring development contributions (see [5.1880]).

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A ncillary matters

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• shoring and adequacy of adjoining property.

!!~:~:OJ

A ~onsent can be granted subject to a condition that a specified aspect of the pmenr is to be earned out to the satisfaction of the consent authority or as ·f· d (s 80A(2)) Th' ll ·1 . pec1 1e person . is a ows counc1 s to determine the issues of substance in th d l matt f d ·1 l d . e consent an eave ers o eta1 (eg, an scapmg plans) to council officers. The conse t h · . · d · h. h' h 11 n aut onty can specify a P eno w1t m w IC an anci ary aspect must be carried out (cl 96).

Conditions requiring other means of enforcement [5.1630] Consent authorities sometimes attempt to reinforce development consents by imposing conditions that require other means of enforcement, such as deeds, agreements and covenants.

Standards or outcomes

Common law deeds and agreements

[5.1590) Conditions may specify (s 80A(4)):

[5.1640] In Kindimindi Investments Pty Ltd v Lane Cove Council (2007) 150 LGERA 333;

• outcomes or objectives that the development must achieve, and • clear criteria against which the achievement of utcomes must be assessed.

[2007] NSWCA 38, the Council had issued a development consent for a shopping centre near a school containing numerous conditions but not a requirement that a new drop-off facility be constructed to promote pedestrian safety in relation to the school. The requirement for the drop-off facility was included in a deed between the council and the developer. The Court of Appeal held that the consent should have contained a requirement for the construction of the drop-off facility. It was not properly contained in a private deed alone.

O

Provision of security [5.1600) A development consent may be granted b' .. may enter into an agreement with an I' hsu hJect to a cond1t10n, or a consent authority app icant, t at t e applicant must ·d · payment of the cost of (ss 80A(6) _ BOA(lO)): prov1 e security for the

• making ~ood any damage caused to any property of the consent authority • construction, completmg any public work (such as road work . . stormwater drainage d . ' kerbmg and guttermg, the consent

footway an environmental controls) required in connection with

• completed. remedying any defects in any such bl' pu

JC

k h . wor t at anse within six months after the work is

The security is to be for a reasonable amount as determined by th

h . e consent aut onty.

Reviewable conditions [5.1 610) Subections 80A(10B) _ (l0E) 11 " . consents. These are conditions that: a ows rev1ewable conditions" to be attached to

hours of operation (in add't' h .. •• mcrease .permit extended h . wn to ot er specified hours of operation) or t e maximum number of . . '

Covenants and easements [5.1650] Conditions requiring covenants are not uncommon. For example, a condition might require the registration of a covenant on title restricting a future change of use of a building or land (see [2.20]-[2.150]). The Land and Environment Court will generally not support the imposition of such conditions. It has expressed the view that the law already adequately provides for the enforcement of the provisions of development consents and therefore there is no need or justification for the imposition of a restrictive covenant (see Squadron Pty Ltd AFT Garrison Unity Trust v Wyong Shire Council [2007] NSWLEC 336; PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41; Macdonald v Mosman Municipal Council (1999) NSWLEC 215; S Y Holdings Pty Ltd v Warringah Shire Council (unreported, 15 April 1981); Carr v Gou/burn City Council (unreported, 21 June 1983); Lean Lackenby & Hayward Pty Ltd v Wollondilly Shire Council (unreported, 20 July 1994); Willoughby Municipal Council v Huxley Homes Pty Ltd [1989] NSWLEC 135).

J

· persons permitted m a building (' dd' · maximum number otherwise permitted) . m a 1t10n to the

They can be attached to uses of a building as . · d cu l b or restaurant (cl 124B(l)). an entertamment venue ' fu nc t'!On centre, pub, reg1stere A development consent that is granted sub·ect to . .. subject to a further condition that the conse t J h . a rev1e~able cond1t10n may be granted at intervals specified by the consent d thn ahut on~ may review that condition at any time or an at t e rev1ewabl econ d'itwn · may be changed on any such review (s 80A(10B)).

Prescribed conditions [5.1 620) Section BOA( 11) provides that a develo . . may be prescribed by the Regulation The . l dpm(enllt consent rs subiect to such conditions as . . · se me u e c 98 _ 98E): compliance with the Building Code of Au . . Home Building Act 1989 stra1Ia and msurance requirements under the

• • erection of signs

Case study: Time limited consent [5.1660] In Newton v Great Lakes Council [2013] NSWLEC 1248 the Land and

Environment Court considered the reasonableness of climate change related conditions of consent on land susceptible to coastal erosion. The first challenged condition limited development consent to a period of 20 years. It required that 60 days prior to consent expiry the owner's consultant undertake a review of applicable coastal controls and hazard predictions, including long-term recession and storm erosion data and projections. The review report and its recommendations were to be submitted for Council's consideration (for further consent) no later than 30 days prior to expiry. The reason cited by the Council for the imposition of this condition was "to allow reasonable expectation of development under current uncertainties in relation to beach renourishment and the resulting effective hazard lines." The second contested condition required the dwelling's footings and foundations to be designed and constructed to ensure continued support of the building structure consistent with the 2033 sea level rise conditions. This condition

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sought to ensure structural stability and safety and to avoid increased erosion of adjacent properties during a severe storm event. In relation to the first condition, the Court noted it effectively imposed two obligations on whosoever was the owner of the property in 2033. The first obligation, subject to reprieve by the second, was the obligation to cease using the dwelling at the time of expiry of the consent. The hope of reprieve lay in the second half of the condition whereby the Council held out the potential - subject to the then owners undertaking a coastal hazard study - of approval for some further occupation of the dwelling either on an indefinite basis or on some further time restriction. The Court therefore held that it was inappropriate to impose the first contested condition placing a time limit on the consent, primarily because it was so out of context with that imposed on the surrounding existing development. It emphasised however, that the removal of that condition made it essential that the second contested condition requiring appropriate precautionary standards to be applied in the construction of the footings for the dwelling be retained as a condition of consent.

Validity of conditions [5.1670] In order to be valid, a condition must:

• •

be authorised by the Act (and in particulars 80A(l)(a)), and satisfy the common law test of validity (ie the "Newbury test", discussed below).

See Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; Community Association DP 270253 v Woollahra Municipal Council [2013] NSWLEC 184; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 The leading authority for the common law test of validity is the House of Lords decision in Newbury District Council v Secretary for the Environment [1981] AC 578; [1980] 1 All ER 731. It is the accepted test for determining the validity of consent conditions in NSW (see, for example, Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54 at 68; Waverley Municipal Council v PE Bakers Pty Ltd (1985) 54 LGRA 309; Parramatta City Council v Peterson (1987) 61 LGRA 286; Richmond River Shire Council v Ramsey (1988) 66 LGRA 210 at 213; King v Bathurst Regional Council [2006] NSWLEC 505; Hill v Blacktown City Council [2007] NSWLEC 401; Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53; Andrews v Botany Bay City Council [2008] NSWLEC 96; Botany Bay City Council v Ralansaab Pty Ltd [2010] NSWLEC 225).

• • •

In order to be valid under the Newbury test, a condition must:

be imposed for a planning purpose fairly and reasonably relate to the development for which permission is given not be so unreasonable that no reasonable planning authority would have imposed it.

It is important to remember that even if a condition is found to be legally valid- that is, within a council' s powers - the court may still, as a matter of discretion on a merit appeal, decide that it

[5.1690]

chapter 5 Development

should not be imposed. Apart from deciding questions of validity, the court can also hear appeals on the merits from developers who are not happy with council decisions (see [2.350]).

When is a condition for a planning purpose? [5.1680] In order to be for a planning purpose, a condition must be derived from the EPA Act and not preconceived general notions of what constitutes a planning purpose: Westfield Management Ltd v Perpetual Trustee Co Ltd [2006] NSWCA 245; Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63.

Several cases have dealt with the question of whether conditions are for a planning purpose. In Hill v Blacktown City Council [2008] NSWLEC 203, the Court considered a condition requiring the applicant to enter into a deed of release with the Planning Department preventing the applicant from seeking compensation for the acquisition of land. The condition was held to be for a planning purpose. Pain J considered, amongst other things, that the Growth Centres SEPP required the Department to consider the cost to the Department of acquiring the development site prior to granting its concurrence (see also Hill v Blacktown City Council [2007] NSWLEC 401). In Lean Lackenby & Haywood Liverpool Pty Ltd v Baulkham Hills Shire Council [2003] NSWLEC 406, Pain J in the Land and Environment Court held that because there is no power in the EPA Act authorising the acquisition of land except by way of dedication under section 94 (see [5.1890]), there could be no basis for a condition requiring the applicant to dedicate land comprising a detention basin to the Council at no cost. The condition was held not to be for a planning purpose and therefore could not satisfy the first part of the Newbury test. However, in Valiant Timber & Hardware Co Pty Ltd v Blacktown City Council [2005] NSWLEC 747, Bignold J disagreed with Pain J (at [32]) on the basis that her Honour did not address the true question of power raised in that case, which was whether Council had power to grant approval to a section 96 modification application (see [5.2320]-[5.2420]). Bignold J held that pursuant to such an application, the Council did have power to impose such a condition of consent under section 96 of the Act.

The Court has also held that conditions are void if they require an indemnity to be given to the consent authority in consideration of the grant of development consent. Such conditions could not be classified as being made in the public interest as referred to in section 79C(l)(e) of the EPA Act, since no protection whatsoever is afforded to the public. In addition, they do not satisfy the requirement that they be imposed for a planning purpose (Hutchison 3G Australia Pty Ltd v Waverley Council [2002] NSWLEC 151 applying Galandon Pty Ltd v Narrabri Shire Council (1983) 51 LGRA 5).

When does a condition fairly and reasonably relate to the development? [5.1690] In order to satisfy the second test, a condition must not simply be justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case (Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008] NSWLEC 53). The fundamental consideration is whether there is a nexus between the condition proposed and the development for which consent is granted (Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65).

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In Parramatta City Council v Peterson (1987) 61 LGRA 286, Stein J held that this test is not answered simply by geographical proximity but rather by whether the development is benefited (see also McGregor v Bathurst City Council [1995] NSWLEC 71; Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313).

However, in Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008) NSWLEC 53, Biscoe J said that "it may not be inconsistent to envisage cases where a condition is fair and reasonable in the circumstances of a particular case ... even if it does not benefit the permitted development". In Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65, Craig J interpreted this statement to mean that there may be some circumstances in which the nexus between a condition and a development can be demonstrated by some means other than a benefit.

[5.1720]

chapter 5 Development

to the development. In the circumstances, the effect of the condition was that it amounted to either a refusal of the application or a failure to determine the application, and it was held that there had been no consent to the application. On the other hand, in Bullock, Walters and Assoc Pty Ltd v Eurobodalla Shire Council (unreported, Land and Environment Court, 26 March 1984), Cripps J upheld the validity of a condition that there should be a monetary contribution for the future construction of an arterial road for a proposed residential subdivision. The development would generate additional traffic in the area, even though many of the residents would not use the road on a regular basis and most of the anticipated traffic would have no connection with the subdivision.

Case studies: Imposing conditions

When is a condition unreasonable?

[5.1700] In St George Building Society v Manly Municipal Council (1982) 3 APA 370, the Council imposed a condition that required the developer to provide a pedestrian walkway across his land at all times. The existing development incorporated an arcade that gave pedestrian access between two streets. The Council wanted the developer to continue this arrangement, or a similar one, when the site was redeveloped. However, the land comprising the arcade belonged to the developer and there was no existing legally enforceable public right of way over it. The court decided on the merits that the condition was not one that should be imposed, and took the further step of holding that the condition was invalid. Although the condition was concerned with the existing and likely future amenity of the neighbourhood, and thus satisfied the first requirement of the test, it did not satisfy the second or the third. The development itself did not create any need for an arcade access. Indeed, the question of access was "wholly extraneous" to the proposed development. The condition, therefore, did not fairly and reasonably relate to the development. It was irrelevant that an arcade was presently provided because the public had no legal rights to use this arcade for access purposes. Apart from this, the court decided that the condition was so unreasonable that no reasonable council, properly advised, would impose it.

[5.1710] A condition must not be so unreasonable that no reasonable authority could have imposed it. This test is concerned with the test for unreasonableness ("manifest unreasonableness") expressed in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (see [2.450)).

In Dogild Pty Ltd v Warringah Council (2008) 158 LGERA 429; [2008) NSWLEC 53, the court considered a condition on an approval for a four storey residential and commercial development requiring the creation of a right of carriageway to the rear of the development site. Biscoe J held that the condition did not fairly and reasonably relate to the development. His Honour found that the development did not generate the need for the right of carriageway and public access and would not benefit from it. His Honour also considered that the condition caused significant private detriment due to the new and potentially heavy vehicular traffic and pedestrian flows. See also Pickwell v Ku-ring-gai Council [2005) NSWLEC 59 and Andrews v Botany Bay City Council [2008) NSWLEC 96. In Ben-Menashe v Ku-ring-gai Municipal Council [2001) NSWLEC 168, the court considered a condition of development consent for a Torrens title subdivision requiring strata subdivision. It was held that the condition could not be of relevance

In Pickwell v Ku-ring-gai Council [2005] NSWLEC 59, the court considered a condition on an approval for subdivision. The condition required the applicant to alter the terms of a drainage easement and to pay the Council's legal costs and disbursements for the checking of the documentation associated with the alteration of the easement. Lloyd J held that the condition was unreasonable because it required the applicant to accept an open-ended obligation to pay the Council' s legal costs. For recent cases in which the court declined to make a finding that a condition was unreasonable, see Westfield Management Limited v Perpetual Trustee Company Ltd [2006] NSWCA 245; Andrews v Botany Bay City Council [2008) NSWLEC 96 and Botany Bay City Council v Ralansaab Pty Ltd [2010) NSWLEC 225.

Uncertain or unenforceable conditions [5.1720] Conditions that are open-ended, uncertain or incapable of enforcement may be declared to be invalid. This was the case in Fairfield City Council v Holroyd City Council [1999] NSWLEC 122, where a development consent for a doctor's surgery to deal with emergencies was subject to a condition requiring the applicant to request authorities to improve facilities. The Land and Environment Court noted that the condition was expressed in the broadest terms and its fulfilment was dependent upon the cooperation of third parties. The court said that, treating it literally, the condition would be satisfied once the requests were made even though they might be refused or never fulfilled.

In Botany Bay City Council v Ralansaab Pty Ltd [2010) NSWLEC 225; Sheahan J considered a condition requiring the replacement of cables "within the road reserves and within the site". He held that the condition was uncertain because the "road reserves" were not identified in the consent.

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Status of invalid conditions [5.1730] A condition of development consent is valid and must be complied with until it is declared to be void by a court (Swadling v Sutherland Shire Council (1994) 82 LGERA 431; Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 85). If a condition is imposed that is beyond the consent authority's powers, the authority may modify the consent under section 96 of the Act by amending or deleting the condition (see [2.2320)-(2.2420)), unless the consent, or a condition of the consent, is declared to be void. If the effect of the modification is to remove the cause of the suggested invalidity, there is no longer any basis for saying that the consent is void (Swadling v Sutherland Shire Council (1994) 82 LGERA 431. See also Smith v East Elloe Rural District Council [1956] AC 736 at 769-70; Calvin v Carr [1979] 1 NSWLR 1; [1980) AC 574; F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306; Ba/main Association Inc v Planning Administrator for Leichhardt Council (1991) 25 NSWLR 615). However, the qualification on this rule is that section 96 cannot be used where a consent is invalid because:

• of jurisdictional error • it lacks finality • it contains a condition that is not severable from the remainder of the consent.

See Association for Berowra Creek Inc v Minister for Planning [2003] NSWLEC 38. Invalidation of a condition of consent may also mean that there is no lawful consent to a development application if it falls under one of two overlapping circumstances:

• where a condition has the effect of "significantly altering the development in respect of which the application is made" • where a Council has purportedly granted consent, but in terms which lack either finality or certainty, so that there is, in substance, no effective consent to the application.

See Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA 349; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277.

Severance of invalid conditions [5.1750] A court declaration that a condition is invalid does not mean that the developer can proceed and ignore the offending condition. The court may also find that the condition and the consent are so intertwined that if the condition is invalid, the consent should not stand and the whole question should be reopened. The developer, having reapplied for consent, then faces the risk that the council (and/or the court, on appeal) may decide that development consent should not be granted at all if the condition is absent.

This approach means that developers will be reluctant to challenge the validity of conditions, even when they appear to have a good argument. If they do make a challenge, they risk losing development consent altogether.

Case study: Condition not severable [5.1760] The case of Greek Australian Finance Corp v Sydney City Council (1974) 29 LGRA 130 was decided under the previous planning legislation. A condition requiring the developer to contribute to a fund established to provide for off-street parking was held to be invalid. In his development application, the developer had actually offered to contribute to the fund, but was clearly taken aback by the amount actually required and challenged the validity of the condition. The court then went on to hold that the condition could not be severed from the consent and, therefore, that the consent had no effect. The condition was "a fundamental element of the approval". The Council had never considered the possibility of no parking places and no contribution, and in these circumstances may well have wanted to reject the application outright.

Case study: Condition severable Case study: Significant alteration and lack of finality or certainty [5.1740] Two circumstances where invalidity of a condition may result in the voiding of a development consent are where the condition is held to permit significant alteration to the consent or lacks finality or certainty. In Mison v Randwick Municipal Council (1991) 23 NSWLR 734; 73 LGRA349, the contentious condition provided for the overall height of the subject dwelling house to be "reduced to the satisfaction of Council's chief town planner". On the facts, the height of the house was of critical importance yet the condition left the height for later determination without stating any criterion for its determination. In Levenstrath Community Association Inc v Tomies Timber (2000) 108 LGERA 176, a consent was declared void because of the absence of a condition limiting the production capacity of a sawmill which left uncertainty that operations might be altered in a way that changed the nature of the sawmill from development per se to designated development.

[5.1770] In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the Court of Appeal considered a condition of consent requiring the dedication of an area of land to the Council free of cost. The condition was found to be invalid on the basis that it was not imposed in accordance with a contributions plan approved under section 94B of the Act (see [5.1990)). The Court held that the condition was severable from the consent in question because its deletion would not result in the balance of the consent operating in a manner different to that in which the whole would have operated and it was not fundamental to the proposed development. The Court relied on evidence that it was not the Council's intention to require the land to be dedicated to Council free of cost as the Council intended to use monetary development contributions required by conditions attached to related development consents to purchase the land.

Delay may also influence a developer's decision not to challenge the validity of a condition. In the Queensland case of Bayview Gardens Pty Ltd v Mu/grave Shire Council (1987) 65 LGRA 122, the developer had paid money voluntarily even

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though a condition requiring it to do so was invalid. The developer tactically chose not to challenge this condition directly, but failed in its attempt to obtain an order requiring the Council to repay the money (see also M J Davis Industrial Pty Ltd v Fairfield City Council [1999) NSWSC 829).

Certification of development [5.1780] The certification of complying development under the EPA Act has been discussed

([5.610)). The Act also provides for certification of some of the stages in development control. Under Part 4A- Certification of development - of the Act, the following certificates can be issued (ss 85A, 109C(1)):

• construction certificates • occupation certificates • subdivision certificates • compliance certificates.

These certificates - "Part 4A certificates" and complying development certificates under Part 4 of the Act - are generally issued by either private accredited certifiers or councils (ss 85A(1), 109D(l)). Private certifiers and council officers are accredited for this purpose by the NSW Building Professionals Board under the provisions of the Building Professionals Act 2005.

Construction certificates [5.1790] The erection of a building or subdivision work must not be commenced without a construction certificate (ss 81A(2)(a), 81A(4)(a)). If a construction certificate is not obtained, any work carried out is unlawful (Detala Pty Ltd v Byron Shire Council [2002) NSWCA 404 ).

A construction certificate certifies that work completed in accordance with the plans and specifications complies with requirements of the Regulation (ss 81A(5), 109C(l)(b)). These requirements include: compliance with any relevant BASIX certificate (cl 145(1)(a1)) (see [10.420))

• • • •

compliance with the relevant requirements of the Building Code of Australia (cl 145(1)(6)) compliance with conditions of development consent, including conditions requiring the payment of development contributions or the provision of security (cl 146), and ensuring that the design and construction of the building are "not inconsistent with" the development consent (cll 145(1)(a), 145(2)).

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When issuing construction certificates, certifiers are held to a position of public trust requiring the exercise of their professional judgment (Building Professionals Board v Cogo [2008) NSWADT 119; Barakat v Building Professionals Board [2009) NSWADT 5).

Consistency between construction certificates and development consent [5.1800] A certifying authority must not issue a construction certificate for building work unless

the design and construction of the building are "not inconsistent with" the development consent (cl 145(1)(a)). This contemplates some variation. The question of the consistency of the variation with the development consent is determined having regard to the individual circumstances (Lesnewski v Mosman Municipal Council [2004) NSWLEC 99). In Moy v Warringah Council [2004) NSWCCA 77, the Court of Criminal Appeal said that it should not be determined by reference to the "substantially the same" requirement in section 96 of the EPA Act as that test serves a different statutory function. Sperling J said (at [79)) that the function of the "not inconsistent" requirement is to ensure that the development as built will be in accordance with the development consent and that variations which infringe the limitations on development expressly or impliedly imposed by the development consent may be seen as "inconsistent with" the development consent. The development consent must be construed having regard to the objectives of the consent and its conditions. The overall construction of the consent should be rationalised in a practical and effective way where there are conflicting provisions (Baulkham Hills Shire Council v Dix [2004] NSWLEC 404). Recent case law in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014) NSWCA 404 has shed further light on the issue of consistency between construction certificates and development consent. The development in question involved a major residential and commercial development project for which six construction certificates had been issued by a private accredited certifier which differed from the development consent, resulting in a building that was markedly different from that shown in the consent. The Court of Appeal held that the Land and Environment Court' s decision could not stand in relation to the finding that the construction certificates were not inconsistent with the development consent and not issued in breach of the EPA Regulation (cl 14 5 (1)) or the restrictions on the issue of construction certificates in the Act (s 109F(l)(a)). However, ultimately the Court declined to make ruling on whether the construction certificates were inconsistent with the development consent. What the Court did rule was that, even if it was established that the construction certificates were inconsistent with the development consent and issued in breach of s 109F(l)(a), this would not have invalidated the construction certificates. Instead, the breach should be dealt with as a disciplinary matter relating to the accredited certifier under the Building Professionals Act 2005. Leave to appeal this decision was refused by the High Court in June 2015.

Is a construction certificate part of development consent?

Construction certificates may be issued during progressive stages of development. The Act was amended in 2006 (s 109F(1A) inserted) to provide that a construction certificate has no effect if it is issued for building or subdivision work physically commenced on the land to which the relevant development consent applies. This modified the position adopted by the Court in Marvan Properties Pty Ltd v Randwick City Council [2005) NSWLEC 9, where Talbot J held that a construction certificate could be validly issued for work that had commenced (ie the construction certificate operated retrospectively).

[5.181 0] A construction certificate, once issued, together with any plans and specifications

accompanying it, is taken to form part of the relevant development consent (s 80(12)). Accordingly, compliance with the details certified by a construction certificate can be enforced because the development must be carried out in accordance with the development consent (s 76A(1)).

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Occupation certificates [5.1820] A development consent or complying development certificate that enables the erection of a building is sufficient to authorise the use of the building, when erected, for the purpose for which it was erected (s 81A(l)). However, subject to certain exceptions, it is an offence for a person to commence occupation or use of the whole or any part of a new building or a building subject to a change of use unless an occupation certificate has been issued (ss 109M, 109N).

An occupation certificate authorises the occupation and use of a new building, or a change of use for an existing building (s 109C(l)(c)). New building is defined to include an altered portion of, or an extension to, an existing building (s 109C(4)).

[5.1860)

A subdivision certificate must not be issued unless the certifying authority is satisfied of various matters (s 109](1)), including that a development consent or complying development certificate is in force and that the applicant has complied with all pre-conditions to the issue of the certificate. Where a subdivision involves subdivision work (see [5.140]), a subdivision certificate cannot be issued unless the certifying authority is satisfied that (s 109](2)):

• •

Preconditions for occupation certificates [5.1830] Certain preconditions must be satisfied before interim and final occupation certificates can be issued (ss 109H(3), 109H(5)). These are:

• that the certifying authority must be satisfied that a development consent or complying development certificate is in force in relation to the building • in cases other than where a complying development certificate is issued, that a construction certificate has been issued • that the partially completed building is suitable for occupation or use in accordance with its classification under the Building Code of Australia • that any requirements of the Regulation are first complied with.

Similar requirements apply in relation to the change of use of an existing building (s 109H(4), 109H(6)).

Exemptions [5.1840] It is not necessary to obtain an occupation certificate for occupation or use of a new building if (s 109M(2); cl 156):

• the erection of the building does not require development consent • more than twelve months have expired from the date on which the building was first occupied or used • the building is erected by or on behalf of the Crown • it is a temporary structure other than an entertainment venue. Subdivision certificates

[5.1850] A subdivision certificate authorises the registration of a plan of subdivision under the

Conveyancing Act 1919 (s 109C(l)(d)).

the work has been completed, or that agreement has been reached between the applicant for the certificate and the consent authority in relation to: - the payment or provision of security by the applicant to the consent authority for the cost of carrying out the work, and - when the work will be completed by the consent authority or the applicant.

An occupation certificate can be issued on an interim or final basis. An interim certificate relates to the occupation or use of a partially completed new building or a new use of part of an existing building. All preconditions to the issue of an occupation certificate that are specified in a development consent or complying development certificate must have been met (s 109H(1B)).

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Principal certifying authority [5.1860] Section 109£(1) provides that the person having the benefit of a development consent or complying development certificate for development involving building work or subdivision work must appoint a principal certifying authority for development. The erection of a building in accordance with a development consent must not be commenced until the principal certifying authority has been appointed (s 81A(2)(b)(i)). The principal certifying authority must notify the consent authority and council (if the council is not the consent authority) of his or her appointment two days before any building work commences (s 81A(2)(bl).

A principal certifying authority for building work or subdivision work is required by section 109E( 3) to be satisfied about various matters. These include:

• that a construction certificate or complying development certificate has been issued before building work or subdivision work commences on the site • that the principal contractor has a building licence and appropriate home warranty msurance, • that owner-builders have an owner builders permit • that building work or subdivision work on the site has been properly inspected by the •

principal certifying authority or another certifying authority before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work that any preconditions have been met if they are required by a development consent or complying development certificate before an occupation certificate or subdivision certificate is issued.

The principal certifying authority must assess and determine occupation certificate applications before the a new building is occupied or used (s 109D(2)). It must also assess and determine subdivision certificate applications before subdivision work is commenced (s 109D(3)). There is no general power of delegation by a principal certifying authority under the Act (Northern Residential Pty Limited v Newcastle City Council [2009] NSWLEC 10: this finding was undisturbed on appeal in Newcastle City Council v Northern Residential Pty Ltd [2009] NSWCA 141). However, the power to carry out critical stage inspections, and other inspections required by the principal certifying authority may be delegated in limited circumstances, but only to another certifying authority (s 109E(3)(d); cl 162A).

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Section l091 ~uthorises principal certifying authorities to issue notices requiring work to be carried out in circumstances in which an order under s 121B of the Act may be_ serv~d (see ]). A notice under section 1091 brings a breach to the attention of :hose actmg with the 5 2590 le.nefit of the consent or complying development certificate (s 1091(2)), havmg the same e~fect as a notice to be given of a proposed order (s 121H), and informs the owner, consent authority and local council (s 1091(3)).

Compliance certificates (5.1870] A compliance certificate certifies that (s 109C(l)(a)):

..

• specified building work or subdivision work has _b~en. completed as specified m the certificate and complies with specified plans and specificat10ns or standards, or • a condition attached to a development consent or complying development certificate has been complied with, or • a building or proposed building is classified in accordance with the Building Code of Australia, or • an aspect of development complies with the requirements of any other provisions prescribed by the Regulation, or . • an aspect of development (including design) complies with standards or requirements specified in the certificate. A compliance certificate issued by an accredited certifier can, for example, replace inspections of various stages of building work.

Development contributions (5.1880] Divisions 6 and 6A of Part 4 of the EPA Act deal with development contributions. They

contain provisions authorising: a condition of development consent requiring the payment of a mo_netary c_ontribu~ion o~ the dedication of land free of cost or the acceptance of a material public benefit m-heu towards the provision of local public amenities and public services to meet development (s 94

•

contributions)

• a condition of development consent requiring the payment of a flat percentage levy toward_s the provision of local public amenities and public services to meet development (s 9~A levies) • a condition of development consent to be imposed by the consent autho_r~ty at t~e direct10n • •

of the Minister requiring a development contribution towards the prov1s10n of mfrastructure in relation to development (s 94EF special infrastructure contributions) a voluntary planning agreement for the provision of development contributions to be entered into with a developer who seeks a rezoning of land or makes a development application (s 93F planning agreements) . a condition of development consent requiring land or contributions for affordable housmg (s 94F affordable housing contributions). The different development contributions mechanisms contained in those sections are discussed

below.

Section 94 contributions Scope of section 94 (5.1890] Section 94(1) of the EPA Act provides that if a consent authority is satisfied that

development is likely to require the provision of or increase the demand for public amenities and public services within the area, it can grant the development consent subject to a condition requiring the dedication of land free of cost or the payment of a monetary contribution or both. Such a condition can only require a reasonable dedication or contribution for the provision, extension or augmentation of the public amenities and public services concerned (s 94(2)). A consent authority may also accept the provision of a material public benefit by a developer, such as works in kind or the provision of certain public amenities or services that are not scheduled within a contributions plan in lieu of the part or full payment of either a monetary contribution or the dedication of land that is required as a condition of development consent (s 94(5)). Section 94 is an exclusive code in relation to the imposition of conditions of development consent requiring monetary contributions or the dedication of land free of cost towards the provision of local public amenities and public services (Fitch v Shoalhaven City Council (1987) 671GRA 165). Section 94 sets out what is necessary before the dedication of land or a monetary contribution can be required. It also sets out the procedure for doing so. In Fitch, Stein J explained that section 94 explicitly makes special requirements before such conditions can be valid; these requirements are in addition to those under section 80A. In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733, the applicants made an offer to pay money to the council towards the purchase of environmental conservation offset land. This was to be done through a condition of consent under section 80A(l)(a) (see [5.1560]) and, in the alternative, through a planning agreement (see [5.2110]). Jagot J said that section 80A(l)(a) is not a source of residual power to impose conditions requiring payment of money outside the scheme of section 94. On the facts, a condition requiring the payment to be made was not authorised under section 94. See also MLC Properties v Camden Council (1997) 96 1GERA 52; Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning [2000] NSW1EC 20. The NSW Court of Appeal held in Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41 that it would be unwarranted to extend the exclusive scope of section 94 beyond conditions that require the payment of a monetary contribution or the dedication of land free of cost to the consent authority. The Court considered two conditions of development consent requiring roadworks to be undertaken adjacent to the land concerned. Those conditions had been imposed under what is now section 80A(l)(f), which permits a condition requiring the carrying out of on-site or off-site works relating to any matter referred to in section 79C(l) applicable to the development. The Court, in upholding the validity of the conditions, held that section 94 did not deny a council the power to impose a condition of consent requiring the developer to undertake work offsite at their own expense simply because the work might or would benefit the public. In Dogild Pty Ltd v Warringah Council (2008) 158 1GERA 429; [2008] NSWLEC 53, Biscoe J held that a condition imposed by the Council requiring the creation of a right of carriageway over a private lane at the rear of the development site was not imposed in breach of the exclusive power in section 94 as it did not require the dedication of land to the public. In its

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terms, the condition granted a right of way to other properties, not to the public even though the reason given by the council in the consent for the imposition of the condition was "to ensure public access over the laneway". In addition to the limitation imposed by Fairfield City Council v N & S Olivieri Pty Ltd [2003] NSWCA 41, in Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168 the Land and Environment Court held that a contribution under section 94 could only be required as a condition on the grant of a development consent. It could not be required on a modification application under section 96 (see [5.2320]). This does not mean, however, that a section 94 condition cannot be modified under section 96 (Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502). In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, the NSW Court of Appeal held that, to be valid, a section 94 condition must satisfy the test of future need and the Newbury test (see [5.1670]).

Case study: Requirement for valid development contribution conditions [5.1900] In Meriton Apartments Pty Ltd v Minister for Urban Affairs and Planning

[2000] NSWLEC 20 the applicant challenged the validity of provisions of an LEP and DCP requiring development contributions for the provision of affordable housing in the Green Square urban renewal area. The applicant was successful on three grounds: Development contributions must have a purpose authorised by the EPA Act, and the challenged provisions did not conform to the objectives of the EPA Act (s 5). The power to impose a contribution as a condition of development consent is exclusive to s 94. In this case, a contribution towards affordable housing was held to be invalid because its purpose was to achieve a social objective (the provision of affordable housing) which was not contemplated by s 94. The EPA Act did not contain express provisions permitting the acquisition of property without compensation, as envisaged by the challenged provisions. Further, any condition imposed in reliance on those provisions would be manifestly unreasonable in the Wednesbury sense (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) since such conditions would represent an "oppressive" or "gratuitous" interference with property rights. Prior to, and consequent to, judgment being handed down in this matter, amendments were made to the EPA Act. These added affordable housing as an object of the Act (s 5(a)(viii)), included affordable housing in the contents of an EPI (s 26(1)(d)), and enabled the imposition of conditions requiring contributions to be made for the purpose of providing affordable housing where that need has been identified by a SEPP (ss 94F and 94G). The legislation also validated existing consents and temporarily validated the affordable housing provisions of affected statutory instruments, and removed the potential for compensation to be claimed in relation to consents granted under affordable housing schemes. State Environmental

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Planning Policy No 70 - Affordable Housing (Revised Schemes) ("SEPP 70") was subsequently gazetted in 2002 to extend the validation of existing affordable housing schemes and to amend their operation to align with sections 94F and 94G of the Act.

Within the local government area [5.191 0] If there is a requirement for land to be dedicated or money contributed under a section 94 condition, it must only be for the purpose of providing or increasing public amenities and public services (s 94(2)) in the local government area concerned (Parramatta City Council v Peterson (1987) 61 LGRA 286; Russo v Burwood Municipal Council (unreported, NSW Court of Appeal, 25 November 1996); Lismore City Council v Richmond Valley Council [2003] NSWLEC 295).

Public amenities and public services [5.1920] Public amenities and public services are not defined in the Act except to exclude water

supply and sewerage services (s 93C). In Stockland (Constructors) Pty Ltd v Shel/harbour Council [1996] NSWLEC 123, Stein Jin the Land and Environment Court accepted an argument by the Council that a building or facility can provide a public amenity or public service without the public having access to the facility or building as of right. His Honour said that what is important is the public benefit provided by or from the facility, not necessarily its physical accessibility to the public: so long as a facility is operated or used for the benefit of the public, it provides a public service or public amenity (see also Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313). Public amenities and public services would typically include things such as:

• open space • a wide range of community facilities such as childcare and youth centres • landscaping • carparks • drainage works • public roads and traffic management measures • pedestrian and vehicle overbridges.

In Arkibuilt Pty Ltd v Ku-Ring-Cai Council [2006] NSWLEC 502, Jagot J held that a childcare centre to be operated for the benefit of the public (whether or not all members of the public will or may make use of the centre) fell within the scope of section 94. In Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733, Jagot J seemed prepared to accept that a monetary contribution to the Council towards the cost of purchasing environmental conservation land would also fall within the scope of section 94 (see also Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, which concerned an environmental conservation corridor) .

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Water and sewerage [5.1930] Section 94 does not apply to water supply or sewerage services (s 93C). However,

before issuing a certificate of compliance for development, councils have the power under the Water Management Act 2000 to require the payment of a contribution towards the cost of existing or projected works (including water mains and headworks, sewer mains and sewage treatment works, drainage channels and ancillary works) or to require the developer to construct such works (Division 5 of Part 2 of Chapter 6). In calculating the amount to be contributed, the value of existing works and the estimated cost of projected works may be taken into consideration, and the amount of any Government subsidies is not to be deducted.

Need for public facilities [5.1940] The operation of section 94(1) involves a prediction about the future need for public facilities to meet development the subject of a development application (Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311). Before it can impose a condition of development consent requiring a contribution or dedication, the consent authority must be satisfied that the development will or is likely to require the provision of, or increase the demand for, public amenities and public services in the area (s 94(1)). In Lake Macquarie City Council v Hammersmith Management Pty Limited [2003] NSWCA 313, Tobias JA explained the effect of the statutory test as follows (at [41]):

Both statutory phrases - "require the provision of" and "increase the demand for" require the decision-maker to focus on the particular development and to then ask what types of public amenities or public services that development will or is likely to require the provision of or increase the demand for. The Council's approach concentrates on the identification of a particular public amenity or public service and then asks whether the particular development is capable of benefiting from it. This, in my opinion, shifts the emphasis from that which was intended ... The Court accepted that the test is one of "demonstrated need" in the sense that it is necessary for the consent authority to demonstrate that the particular development would generate a need for the relevant public amenities and public services when implemented. As Tobias JA explained (at [44]), the concept of need covers both "requiring provision" and "increasing demand for". The Court held that whenever a condition is imposed under section 94(1), the consent authority must have evidence available that justifies the prediction about future need. The point in time to assess the likely demand for public amenities and public services is at the time the development consent is granted (Meriton Apartments Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 776; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261). There must be a definite and rational basis of assessment (Quota Corporation Ltd v Leichhardt Municipal Council (1981) 45 LGRA 319; Building Owners and Managers Association of Australia Ltd v Sydney City Council (1984) 53 LGRA 54; Frevcourt v Wingecarribee Shire Council (1993) 80 LGERA 75; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA261).

Where facilities hove already been provided [5.1950] The Act provides that if (s 94(3)):

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• a consent authority has already provided public amenities or public services within the area in preparation for facilitating development, and • the proposed development will benefit from the provision of those public amenities or public services, the consent authority may grant the development consent subject to a condition requiring the payment of a reasonable monetary contribution towards recoupment of the cost of providing the public amenities or public services. In Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435, the Court of Appeal held that the reference to "cost" in section 94(3) was a reference to the actual historic amount of money the Council paid out at the time for capital costs, not an amount worked out by taking present day cost and discounting it, or by applying an index to historical cost. It did not include any government subsidies, such as those provided for the construction of waterworks. However, subsequent amendments to section 94 and the Regulation permit the recovery of costs indexed in accordance with the Consumer Price Index (cl 251).

Reasonableness [5.1960] A section 94 contribution must be "reasonable" (ss 94(2), 94(4), 94B(3); Trehy v

Gosford City Council (1995) 87 LGERA 262). In Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313, the Court of Appeal said that the requirement in section 94(2) that a condition is to be imposed only for the reasonable provision, extension or augmentation of public amenities and public services is not to be confused with the third limb of the Newbury test. The concept of reasonableness is not a precise one, and it allows councils and the courts a great deal of flexibility. In the past, one issue has been whether the service or amenity must be connected to the development, not only in the sense that the development has created a need for it, but also that it is located close to the development. Demanding a connection in this second sense makes absolutely no sense in planning terms (see Lake Macquarie City Council v Hammersmith Management Pty Ltd [2003] NSWCA 313 ).

Case studies: Conditions relating to development [5.1970] In Parramatta City Council v Peterson (1987) 61 LGRA 286, Stein J applying the test of whether a condition fairly and reasonably relates to the permitted development (see [5.1690]), made it clear that the question was whether the development benefited from the public amenity provided, not simply whether it was close by in geographical terms.

In this case, the council proposed to spend the contribution on a carpark situated about 800 metres away from the development site and on the opposite side of a railway line. The judge held that such a condition could be valid even though there was no "direct connection" geographically between the development and the carpark, provided that the facility was located in the council's local government area. The Parramatta central business district had to be looked at as an integrated

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whole. By alleviating the parking problem throughout the area, the proposed parking station would in fact benefit this particular site. In Collin C Donges and Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370, Stein J followed his decision in Parramatta City Council v Peterson (1987) 61 LGRA 286 in holding that extractive industry could be required to pay a monetary contribution towards the maintenance, repair and reconstruction of particular classified main roads within the council's boundaries, even where the roads provided a regional facility. However, in Richmond River Shire Council v Ramsey (1988) 66 LGRA 210, the Court of Appeal struck down a condition that required a contribution to the "upgrading of the shire road network generally", because there was no nexus with the proposed agricultural subdivision.

Capitol and recurrent costs [5.1980] The Court of Appeal has held that cost recoupment for facilities previously provided only applies to capital cost, plus interest paid, and indicated that this approach applied generally to section 94 contributions (Allsands Pty Ltd v Shoalhaven City Council (1993) 78 LGERA 435). An exception has, however, been recognised in relation to road maintenance, repair and reconstruction, where the likelihood of excessive wear and tear by heavy vehicles associated with the proposed development has been established (Collin C Donges and Associates Pty Ltd v Baulkham Hills Shire Council (1989) 67 LGRA 370; Capital Quarries Ltd v Gunning Shire Council (unreported, Land and Environment Court, 14 August 1989); EH and PH Clifford Pty Ltd v Scone Shire Council (1988) 65 LGRA 391).

Accountability: contributions plans Requirement for contributions plan [5.1990] Subject to any relevant direction by the Minister, a council may impose a condition under section 94 only if it is of a kind allowed by a contributions plan and is determined in accordance with the provisions of that plan (s 94B(l)). Contributions plans govern the levying and expenditure of section 94 contributions and are a key accountability mechanism. However, in the case of a consent authority other than a council, the consent authority may impose a condition under section 94 even though it is not authorised by a contributions plan but only if, before imposing the condition, it has regard to any applicable contributions plan (s 94B(2)).

The limitation imposed on councils by this requirement has been interpreted strictly by the courts (see Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455; Trehy v Gosford City Council (1995) 87 LGERA 262). Accredited certifiers are bound by contributions plans when determining applications for complying development certificates, notwithstanding that the wording of the Act is somewhat awkward in this regard (ss 85A(9), 94EC; Broker Pty Ltd v Shoalhaven City Council (2008) 164 LGERA 161; [2008] NSWCA 311).

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The Planning Department has produced practice notes providing advice on the preparation of contributions plans. Considerable emphasis is placed on the need to establish a connection between the proposed development and the need for increased amenities and services.

Power of the Land and Environment Court [5.2000] The Court can disallow or amend a section 94 condition on appeal because it is unreasonable, even if it was determined in accordance with the relevant contributions plan (s 94B(3)) . This power does not authorise the court to disallow or amend the contributions plan.

Section 94B(3) addresses the need to ensure that the Court is not bound in the same way as the council by the contributions plan in appeals under section 97 (see [5.2230)-(5.2280]). This is to permit disputes over the reasonableness of contributions to be properly adjudicated by the court (Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297) . This means that if the court amends a condition on appeal, it may well produce a different outcome from the condition mandated or permitted by the plan (Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266; Trehy v Gosford City Council (1995) 87 LGERA 262). In Rose Consulting, the NSW Court of Appeal held that section 94B(3) gives the Court on appeal a broader discretion than that of a council in amending an unreasonable condition so it is no longer unreasonable even if no longer permitted or mandated by the contributions plan.

Preparing a contributions plan [5.2010] A contributions plan can cover the whole or part of a council area, and can relate to one or more public amenities or services (cl 26(2)). It must include, among other things (cl 27):

• the relationship between the expected types of development in the area and the demand for additional public amenities and services • formulas to be used for determining contributions • contribution rates for different types of development • if the plan authorises the imposition of a fixed development consent levy (ie s 94A

condition), the percentage of the levy, if the percentage differs for different types of development, and indexing of the calculation of the proposed cost of carrying out development

• a works schedule of the specific public amenities and services proposed, and an estimate of their cost and staging.

Thus the proposed public amenities and services should be specified (cl 27(1)(h)). See also Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2, where the Land and Environment Court held that this requirement would be satisfied by denoting the type, kind or category of amenities. The council must prepare a draft contributions plan and place it on public exhibition for comment (cl 28). After considering any submissions, the council may approve the plan, with or without alterations, or decide not to proceed with it. It must give public notice of its decision within 28 days (cl 31) . The validity of the procedures involved in making or approving a contributions plan cannot be questioned in any legal proceedings unless they are commenced within three months of the date

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on which the plan came into effect (s 94EB(3)). However, it has been held that this does not apply to challenges to the validity of the content of a plan (Easeport Pty Ltd v Leichhardt Municipal Council [2001] NSWLEC 2).

Accountability: holding and applying contributions [5.2020] Monetary contributions are to be held in accordance with the conditions of a

development consent or with a planning agreement for the purpose for which the payment was required, and the money is to be applied towards that purpose within a reasonable time (s 93E(l)). Money that is paid for different purposes in accordance with the conditions of development consents may be pooled and applied progressively for those purposes, subject to the requirements of any relevant contributions plan or Ministerial direction (s 93E(2)). A contributions plan must not contain a provision that authorises monetary section 94 contributions paid for different purposes to be pooled and applied progressively for those purposes unless the council is satisfied that the pooling and progressive application of the money paid will not unreasonably prejudice the carrying into effect, within a reasonable time, of the purposes for which the money was originally paid (cl 27(3)). Land dedicated in accordance with a condition of development consent or planning agreement is to be made available for the purpose for which the dedication was required and within a reasonable time (s 93E(3)). In Levadetes v Hawkesbury Shire Council (1988) 67 LGRA 190, the Land and Environment Court held that the Council had failed to expend the relevant monetary contributions within a reasonable time. Holland J said that the locality in question was very small and "particular", the nature of the task to be performed was very simple and uncomplicated and the range of possibilities to achieve the objectives were very limited. These facts led inevitably to the conclusion that a relatively short time for applying the contributions would be reasonable. His Honour acknowledged that the facts in Levadetes were different from many situations where a council has a fund for the provision of parking at strategic places in its area which is gradually accumulated by contributions received from different developers and from which those developers benefit by being relieved of the need to use part of their own sites to provide parking. Here the council may reasonably expect to be free to apply contributions from the fund over a period of time in accordance with appropriate planning. In such a case a reasonable time for applying the funds may be quite long. In Idameneo (No 9) Pty Ltd v Great Lakes Shire Council (1990) 70 LGRA 27, Cripps CJ in the Land and Environment Court considered that a reasonable time would have been a relatively short period in circumstances where a monetary contribution in lieu of carparking had been levied in connection with a development containing six retail shops that was completed within a year or so of the development consent being granted. However, compare Wallis & Moore Pty Ltd v Sutherland Shire Council [2005] NSWLEC 397, where Cowdroy J in the Land and Environment Court held that a period of more than 20 years was a reasonable time in the particular circumstances.

The Court of Appeal in Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107 held that the terms of the conditions of consent and the contributions plan that is in force at the time consent is granted are relevant to the council' s application of the contribution. There is nevertheless a limited discretion as to how section 94 contributions can be spent; it depends on the wording of the relevant contributions plan and the facilities or services in question. The actual

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wording of the development consent condition is also relevant in considering what the council's obligations are in each case. However, a council has a duty to apply the contributions towards the relevant public amenity only to the extent that it is consistent with the proper exercise of the council's statutory functions (Engadine Area Traffic Action Group Inc v Sutherland Shire Council [2004] NSWLEC 264; see also Denham Pty Ltd v Manly Council (1995) 89 LGERA 108). In addition, if costs have increased between the time the contributions were collected and the time they were applied, not all the public amenities and public services identified in a contributions plan must be built if it is no longer possible to build the same number or extent of facilities from the contributions collected. However, if it is proposed to reduce or substitute the works for which contributions were levied, this must be authorised by an amendment to the relevant contributions plan (Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107). The council is entitled to spend money obtained under section 94 before the development to which it relates has commenced (Denham Pty Ltd v Manly Council (1995) 89 LGERA 108). Where the condition is designed to recover costs incurred, it must be used to pay off any debts that remain.

If these requirements are not met, any person may bring proceedings in the Land and Environment Court under section 123 of the Act (see [2.880]), and the Court can make an appropriate order to remedy or restrain the breach. Can section 94 contributions be refunded? [5.2030] One question that frequently arises is whether a council can refund monetary contributions, or can be required to do so. The Court has held that a council could make a voluntary refund of money in accordance with its obligations under section 94 if it was satisfied that the purpose for which the contributions were collected could not, or need no longer, be fulfilled (Engadine Area Traffic Action Group Inc v Sutherland Shire Council [2004] NSWLEC 264; Frevcourt Pty Ltd v Wingecarribee Shire Council [2003] NSWLEC 206). Although Pain J held in Frevcourt v Wingecarribee Shire Council [2005] NSWCA 107 that there were very limited circumstances in which the Land and Environment Court could make an order to refund section 94 monetary contributions, on appeal, the Court of Appeal doubted whether a refund is available as a form of relief under section 124 of the Act (Frevcourt Pty Ltd v Wingecarribee Shire Council [2005] NSWCA 107).

Accountability: Record keeping [5.2040] Councils must keep accounting records that enable monetary contributions under section 94 to be distinguished from other money they hold (cl 35(1)). The accounting records must indicate: the various kinds of public amenities or services for which expenditure is authorised by the relevant section 94 contributions plan

• • the monetary section 94 contributions received under the plan by reference to the various kinds of public amenities or services for which they have been received • the pooling or progressive application of section 94 contributions for different purposes • the amounts spent in accordance with the plan, by reference to the various kinds of public amenities or services for which they have been spent.

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Details of money received and spent under contribution plans must be reported in annual financial reports (cl 35(3)) and annual statements on contribution plans (cl 36). Details of conditions imposed under section 94 are to be recorded in a public register (cl 34(1)). The register must contain:

• • • •

particulars sufficient to identify each development consent for which a condition has been imposed the nature and extent of the section 94 contribution required for each public amenity or service the contributions plan under which the condition was imposed the date on which the section 94 contribution was received.

Section 94 conditions imposed by the Minister qr Secretory [5.2050] If the Minister or Secretary is the consent authority, a section 94 condition can be

imposed (s 94D(l)) where the land in question is:

• •

within a growth centre established under the Growth Centres (Development Corporations) Act 1974, or within a single local council area.

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This power was, for a while, used to prevent section 94 contributions being levied on housing for older people and people with a disability under the former SEPP 5 (see [3.550]). In recent years, the Minister has issued directions in relation to the following:

• • •

capping the amount of section 94 contributions for residential development (4 June 2010, 16 September 2010 and 4 March 2011) social housing (14 September 2007) Building the Education Revolution Program (15 September 2009).

Section 94A levies What ore section 94A levies? [5.2070] A consent authority can grant development consent subject to a condition that the consent authority will be paid a levy, authorised by a contributions plan, on the proposed cost of carrying out the development (s 94A(l)). A contributions plan that authorises a section 94A levy must specify the type or area of development for which a section 94A levy may be imposed, and must exclude the application of section 94 in such cases (s 94EA(2)).

Restrictions similar to those that apply to councils levying and spending section 94 contributions apply, except that in this case a council's contributions plan is not binding. The Minister or Secretary must have regard to the contributions plan (s 94B(2)(b)) but may impose a condition even though it is not in accordance with the plan (s 94B(2)(a)).

A consent authority is prohibited from imposing conditions under both section 94 and section 94A on the same development consent (s 94A(2). If a condition requiring a section 94A levy is imposed in accordance with a contributions plan, section 94B(4) precludes an appeal against it to the Land and Environment Court. A condition imposed under section 94A is not invalid because there is no connection between the development and the object of the expenditure of the levy (s 94A(4)).

The Minister or Secretary are required to pay monetary section 94 contributions to the deyelopment corporation of the relevant growth centre or to the council of the area concerned (s 94D(3)).

The maximum amount

Ministerial directions [5.2060] Section 94E(l) authorises the Minister to give directions to a consent authority in relation to various section 94 matters. These include:

• • • • • •

the public amenities and public services in relation to which a condition under section 94 may be imposed the way in which monetary section 94 contributions are calculated and the maximum amount of the contribution the things that may or may not be accepted as a material public benefit the type or area of development in respect of which a condition under section 94A may be imposed the use of monetary contributions for purposes other than those for which they were paid the preparation of joint contributions plans by two or more councils.

A Ministerial direction is binding on the consent authority (s 94E(2)) and overrides other provisions of Division 6 of Part 4 of the EPA Act and the provisions of a contributions plan (s 94E(3)).

[5.2080] Clause 25K of the Regulation sets out the maximum percentages of the proposed cost of carrying out development that may be imposed by a levy under section 94A. The percentages specified in this clause are subject to any Ministerial direction issued under s 94E(l)(d) of the Act. Any such direction may indicate the maximum percentage of a levy under section 94A for different cost and type of development and development in respect of which such a levy cannot be applied.

Estimating development cost [5.2090] The Regulation provides how the estimated development cost is to be determined

(cl 25J). The costs and expenses incurred by the applicant the consent authority can take into account include those incurred in (cl 25J(l)):

• • • • •

erecting any buildings, with the associated costs of preparing the site for demolition excavation, decontamination or remediation of the site changing the use of the land if the development requires it subdividing the land and preparing, executing and registering the plan of subdivision and any covenants or easements. A consent authority cannot take into account any of the following factors (cl 25J(3 )): the price paid for the land to be developed

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the costs associated with repairing any buildings that are to be kept as part of the development the cost of marketing or financing the development

• the cost of legal work • any project management costs • the cost of building insurance • any costs of furnishings, fittings or refurbishment associated with the development • the costs of commercial stock inventory • any taxes, levies or charges paid in connection with the development • costs of enabling access to the development by disabled persons • costs of energy and water efficiency measures • cost of any development that is provided for affordable housing • cost of any development that is the adaptive reuse of a heritage item. The section 94A levy is similar to, but not the same as, the levy system authorised by section 61 of the City of Sydney Act 1988, which has operated in central Sydney for a number of years.

Accountability [5.2100) The provisions of the Act relating to holding and spending money and to the

requirements for a public register, accounting and annual statements apply to section 94A levies in essentially the same way as they do to section 94 contributions (cl 35; see [5.2040]).

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A consent authority cannot refuse to grant development consent on the ground that a planning agreement has not been entered into in relation to the development (s 931(2)). However, if a draft agreement has been prepared, it must be considered by the consent authority in determining whether to grant consent (s 79C(l)(a)(iiia)). The consent authority can even grant consent subject to a condition that a planning agreement is entered into, but only if the agreement is in the terms of the developer's offer to the consent authority (s 931(3)). This is an important requirement because it imposes the element of compulsion under the law necessary for the parties to avoid liability for GST for supplies under a planning agreement. In Progress and Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135 Jagot Jin the Land and Environment Court held that a consent authority could impose such a condition not only when development consent is originally given but also on the approval of an application to modify a development consent under section 96 of the EPA Act (see [2.2320]-[2.2420]).

What is a public purpose? [5.2120) Public purpose is defined in section 93F(2) to include the provision of, or the recovery of the cost of:

• public amenities and public services (see [5.1920]) • affordable housing and transport or other infrastructure • the funding of recurrent expenditure relating to those things • monitoring the planning impacts of development • the conservation or enhancement of the natural environment. What must a planning agreement contain?

Planning agreements [5.2110) A planning agreement is a voluntary agreement or arrangement entered into between a

planning authority (such as a local council, the Minister or specified public authorities: s 93C) and someone who seeks a change to an EPI or proposes to make a development application (s 93F(1)). Under a planning agreement, the developer agrees to make development contributions towards a public purpose through monetary contributions, the dedication of land free of cost or the provision of material public benefits to the relevant planning authority (s 93F(1)). The nexus principle that applies to section 94 contributions does not apply to planning agreements (s 93F(4)). Planning agreements are intended to be entirely voluntary. A provision of an EPI has no effect (s 931(1)) if it:

• requires a planning agreement to be entered into before a development application is made or determined, or • prevents a development consent from being granted unless a planning agreement is entered into.

[5.2130) Section 93F(3) sets out the mandatory provisions of planning agreements. These

include:

• provisions specifying the relevant land, and the change to an EPI or development application to which the agreement relates • the nature and extent of development contributions to be made under the agreement • dispute resolution and enforcement mechanisms. The obligation to perform an agreement will ordinarily arise when the development to which it relates is commenced.

Relationship with sections 94 and 94A [5.2140) A planning agreement can exclude wholly or partly the application to development of

sections 94 or 94A of the EPA Act (s 93F(5)). If a section 94 contribution is required, any planning agreement that has also been entered into must ordinarily be taken into account in determining the contribution (s 94(6)), but the agreement can provide otherwise (s 93F(6)).

Accountability and safeguards [5.2150) There are a number of important accountability and safeguard mechanisms relating to planning agreements.

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Affordable housing contributions

[5.2160) Money paid under a planning agreement must be applied within a reasonable time for the purpose for which it was paid (s 93E(l)).

What a planning agreement cannot do [5.2170) A planning agreement cannot impose an obligation on a consent authority to grant development consent or to a change an EPI (s 93F(9) ). Nor can a planning agreement constrain a council's power to amend an LEP.

In Rozelle Village Pty Ltd v Leichhardt Municipal Council [2015] NSWLEC132 an LEP had been amended in 2008, consistent with a planning agreement, to allow a total floor space ratio of 3.9:1 on the subject site. Council now proposed to rezone the site to a floor space ratio of 1:1 for commercial development and 1.5:1 for mixed use development. Craig J noted the lack of jurisprudence directed to the inter-relationship of a planning agreement with other provisions of the EPA Act that involve the exercise of discretionary power, including the taking of steps by a council to amend a planning instrument. In an ex tempore judgment on an application for an interlocutory injunction to stop council proceeding with a planning proposal that would be in breach of the planning agreement, his Honour stated (at [25]):

it would seem to lead to a strange result if the terms of a voluntary planning agreement could forever, or at least for an extended period of time, constrain the capacity of a local authority in the performance of its quasi-legislative function to instigate the process of amendment to a local environmental plan under the provisions of Div 4 of Pt 3 of the EPA Act, assuming that for a rational planning reason it is appropriate so to do.

Public notice [5.2180) A planning agreement cannot be entered into, amended or revoked unless public notice is given and it is made available for inspection (s 93G(l)). Notice must be given contemporaneously with public notice of the rezoning or development application to which the proposed agreement relates, or as soon as possible afterwards (cl 25D).

Councils and the Secretary must make available for public inspection planning agreement registers containing short descriptions of planning agreements (ell 25F - 25G). All planning authorities must make the agreements themselves available for public inspection (cll 25F - 25H), and they must include in their annual reports particulars of the planning agreements to which they are party (s 93G(5)). Planning agreements can only be registered on the title to the land if landholders or people with an interest in the land agree (s 93H). On registration, they run with the land and are binding on future landholders.

Nature and scope of section 94F [5.2200) The provision and maintenance of affordable housing is an object of the EPA Act (s 5(a)(viii); see [5.1900]). Flowing from this, a consent authority can consent to a development application subject to a condition that requires the applicant to do one or both of the following (s 94F(2)):

• •

dedicate part of the land, or other land they own, free of cost, to be used for affordable housing pay a monetary contribution

to

be used for affordable housing.

Affordable housing is defined (s 4(1)) to mean housing for very low income households, low income households or moderate income households, as prescribed by the Regulation or provided for in an EPI.

• • • • • •

A condition can be imposed only if (s 94F(3)): it complies with all relevant requirements made by a SEPP (currently SEPP 70) a LEP authorises the imposing of the condition in accordance with a scheme for dedications or contributions set out or adopted it requires a reasonable dedication or contribution, having regard to certain factors. In addition, one of the following preconditions must apply (s 94F(l)):

the consent authority is satisfied that the proposed development will or be likely to reduce the availability of affordable housing within the area, or the consent authority is satisfied that the proposed development will create a need for affordable housing within the area, or the proposed development is allowed only because of the initial zoning of a site, or the rezoning of a site.

Other conditions can be imposed on a development consent that relate to the provision, maintenance or retention of affordable housing (s 94F(5)). Examples of such conditions are those providing for the imposition of covenants (including positive covenants) or the entering into of contractual or other arrangements.

The role of the Land and Environment Court

Accountability

[5.2190) There is no appeal against the failure of a planning authority to enter into a planning agreement or about the terms of an agreement (s 93J(l)) In Progress and Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135, Jagot J held that the Court cannot, on appeal, require a planning authority to enter into a planning agreement.

[5.2210] Any monetary affordable housing contribution must be held for the purpose for which the payment was required and be applied for the purposes of affordable housing in the council's area or an adjoining area within a reasonable time, or be paid in accordance with any direction by the Minister under section 94G(3) (s 94G(2)).

However, anybody can apply to the Land and Environment Court under section 123 of the Act (see [2.880]) to review an agreement on the ground of illegality or to enforce it against a non-complying party (ss 93](2), 122(b)(vi)).

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Reviews and appeals Review of council decisions [5.2220] Under section 82A of the EPA Act, an applicant can ask for a review of a determination in respect of a development application unless a joint regional planning panel has exercised the council's functions as the consent authority (s 82A(12)). The review must be requested at any time before the expiry of the time available for appeal (s 82A(2A); see [5.2250]). This does not apply to complying development (see [5.590]), designated development (see [5.330]), integrated development (see [5.370]) or Crown development (see [5.890]) (s 82A(l)).

An applicant can also ask for a review of a council decision relating to a modification application (see [5.2320]) (s 96AB). The request must be made within 28 days of being notified of the Council' s decision (cl 1231). There is also a right to review a council's decision to reject and not determine a development application (s 82B). The review must be requested within 14 days of being notified of a council's decision (cl 123H).

Appeals Appeal by the applicant [5.2230] If an applicant for development consent or the modification of a consent is dissatisfied with a council decision to refuse consent or to grant consent subject to conditions that are unacceptable to the applicant, they can appeal on the merits to the Land and Environment Court (ss 97, 97AA; see [2.350]) . The exception to this right of appeal is where the development application is for designated development which has been determined by the consent authority following a public hearing held by the Planning Assessment Commission (s 97(7)).

Questions arise as to when an applicant can be said to be relevantly dissatisfied. The issue frequently arises in relation to monetary section 94 contributions, where an applicant seeks to have the court review the amount payable after payment has been made. In Arncliffe Development Pty Ltd v Rockdale City Council [2003] NSWLEC 297, Pain J commented that an applicant might choose to comply with a development consent contribution condition and then seek its modification by the Court under what is now section 97 AA, rather than pursuing a section 97 appeal, which suspends the development consent while the appeal is on foot so that it cannot be acted upon. However, she noted that such an approach might well give rise to discretionary considerations in relation to taking the benefit of the development consent while seeking to avoid the burden (see Progress & Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; Toadolla Co Pty Ltd v Dumaresq Shire Council (1992) 78 LGERA 261; Security Storage Pty Ltd v Leichhardt Municipal Council (1997) 93 LGERA 176).

Deemed refusal [5.2240] What if a council simply stalls and does not make any decision? After a certain period of time, it is deemed to have refused consent (ss 82(1), 82C(3), 96(6), 96AA(3)) . For example, in

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relation to a council' s decision on a development application, the council will usually be deemed to have refused consent either 40 days or 60 days from the date of lodgment, depending on whether the development is designated or integrated development, whether concurrence is required and whether the council has requested further information (cl 113). This allows the applicant to appeal to the Land and Environment Court, which will then make the decision.

Time for appeal [5.2250] The applicant can lodge an appeal in respect of a decision relating to a development application or modification application within six months of:

•

receiving notice of the determination of the application or review (ss 97(l)(a), 97AA(a)), or

• the date in which the application is deemed to have been refused (ss 97(1)(6), 97AA(b)).

This time period was changed as a result of amendments to the EPA Act in February 2011. Prior to this, the time limit was 12 months for development applications and 60 days for modification applications.

The council's rights and obligations [5.2260] Councils must give reasons in writing for refusing consent or for giving it subject to conditions (s 81(1); cl l00(l)(c)), but there is nothing to stop a council arguing on different grounds when it comes to an appeal. The appeal involves a complete rehearing of the case, with the court taking the council's place and exercising its discretion (Land and Environment Court Act 1979, s 39(2), 39(3)). This has led to a considerable level of dissatisfaction among local councils, which claim that, as elected bodies, they are entitled to make the final decision on questions affecting their constituents. Conversely, it is a fundamental principle of the rule of law that there should be a right of appeal or review of an administrative decision.

Rights of other government bodies to be heard [5.2270] If the development application requires the concurrence of a Minister or public authority, or involves integrated development, the Minister or body whose concurrence or approval is required is entitled to be heard on any appeal by the developer (s 97A(l), 97A(4)). The Planning Assessment Commission and joint regional planning panels may also be heard if they have determined the development application in question or if they are able to review it (s 97A(2)- (4)).

If the development application required concurrence, the Land and Environment Court has the power to allow the appeal and grant consent, even though the body whose concurrence is required has not been consulted or has not granted its concurrence. If concurrence has been granted, the court can vary or revoke any conditions attached to the concurrence (Land and Environment Court Act 1979, s 39(6).

Appeal by objectors [5.2280] Third-party merit appeal rights (see [2.350]) are only available where the development is designated or would have been if it had not been declared State significant development (EPA Act, s 98; see [5.2750]) . Where a development application does not fall into either of these

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categories and the council grants consent, the merits of the decision cannot be challenged by an objector in the Land and Environment Court. However, judicial review of the decision can be sought under section 123 (see [2.360]-[2.540]).

Review by Planning Assessment Commission [5.2290] If the consent authority makes a decision on a development application after a review has been held by the Planning Assessment Commission at the direction of the Minister or the Secretary (see [5.920]), and the Commission has held a public hearing, there is no right of appeal by the applicant for designated development or by objectors to designated development or development that would have been designated if it had not been declared to be State significant (ss 97(7), 98(4) - (5)). In reaching a decision, the consent authority must take into account the conclusions of any review that has been held (s 80(6), 80(7)), but does not have to accept them.

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A development consent can be modified under section 96 even though the relevant planning law has been changed between the original grant of consent and the making of the modification application: see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433. See also Consumo Pty Ltd v Fairfield CC [2003] NSWLEC 143; Houlton v Woollahra Municipal Council (1997) 95 LGERA 201; Valhalla Cinemas Pty Ltd v Leichhardt Municipal Council (1986) 60 LGRA 240). The power to amend a consent is not restricted to situations where circumstances have changed, or there is new information available since the original consent was given. However, the proposed modification must fall into one of three categories before it can be considered (ss 92(1), 92(1A), 92(2)). These are addressed below. A requirement of all three types of modification application is that the development, as modified, will remain substantially the same as the development that was originally approved (ss 96(1A)(b), 96(2)(a); cl 115(1)).

Minor errors

Construction, occupation and subdivision certificates [5.2300] There is a right of appeal to the Land and Environment Court (s 109K) against:

• the failure or refusal of a consent authority, when acting as construction, final occupation or subdivision certificate • a decision to issue a construction certificate subject to conditions.

[5.2330] A section 96 application may be made to correct a minor error, misdescription or miscalculation in or relating to a development consent (s 96(1)).

a certifier, to issue a

The appeal may be brought within 12 months after the date on which the decision was made. Deemed refusal periods apply (s 109K(3)). There are no appeal rights for refusal to issue a complying development certificate or an interim occupation certificate.

Modification, revocation and lapsing of consent [5.2310] After development consent has been given, the applicant may seek to have it amended. The consent authority, on the other hand, may wish to take steps to see that developers carry out proposed development and do not simply sit on consents indefinitely. It may even revoke or modify the consent in some circumstances, provided that it is prepared to compensate the developer.

Modification of consent [5.2320] In limited situations, on application by the developer, the consent authority can allow changes to the development, after taking into account section 79C considerations (s 96(3 ); see [5.1180]-[5.1490]). It has been held that modification applications are not the same as development applications made under section 77, and the exercise of the modification power is not the exercise of the power to determine a development application. See Makram Constructions Pty Ltd v North Sydney Council [2002] NSWLEC 4, applying North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 433; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317. Similarly, the legal effect of modifying a development consent is not to grant a new development consent (s 96(4)).

Minimal environmental impact [5.2340] On application, a consent authority can modify the consent if, amongst other things, it is satisfied that the proposed modification is of minimal environmental impact and that the development as modified is substantially the same development as the development for which the consent was originally granted (s 96(1A)). If a development control plan requires public notice of an application to be given (cl 17) then any submissions must be considered (s 96(1A)(d)).

It has been held that whether a modification has minimal environmental impact depends on the particular circumstances of the case. Even though "minimal" means "very small" or "negligible", a proposal that adds an additional level to part of an approved development, comprising additional floor space (even a material amount of additional floor space) is not necessarily incapable of falling within section 96(1A) (Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; King v Bathurst Regional Council [2006] NSWLEC 505).

Other modifications [5.2350] On application, a consent authority can modify a consent that does not fall into the above two categories (ie ss 96(1) or 96(1A)), if it is satisfied that the development is "substantially the same development" as the development for which consent was originally granted (s 96(2)). Before doing so, it must consult relevant government bodies regarding concurrence or integrated development approval requirements (s 96(2)(6); cl 120). The test of whether the development is substantially the same is essentially one of fact (Hope v Council of the City of Bathurst [1980] HCA 16; Fernance Family Holdings Pty Ltd v Newcastle City Council [2000] NSWLEC 190). In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Stein J said: In my opinion "substantially" when used in the section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that

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the modified development is substantially the same, see Seaforth Services Pty Ltd v By_ron Shire Council (No 2) (1991) 72 LGRA 44 and CSR Ltd (tlas CSR Readymix) v Wingecarribee Shire Council (unreported, Land and Environment Court, 17 December 1990). In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations .... Stein J emphasised that the development as modified would not necessarily be substantially the same development simply because it was for precisely the same use as that for which consent was originally granted. Development, particularly the extractive industry in question in that case must be assumed to include the way in which the development is to be carried out. On the facts, it was held that the additional and distinct use of waste disposal in relation to the rehabilitation of an existing quarry, included in the proposed modification of the original consent to carry out extractive industry, meant that it was not "substantially the same development". See also North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433). In Mato Projects (No 2) Pty Limited v North Sydney Council [1999] NSWLEC 280, Bignold J said that the comparison between the original development and the development as modified "involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted)" (at [56]). It also involved comparison of the environmental impacts. It has been held that the concept of modifying development does not exclude amendment of a consent to permit the carrying out of development on land that was not the subject of the original development consent. This includes an expansion of the area on which development is carried out by adding land not the subject of the original consent: Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333.

Making the decision [5.2360] In determining an application for modification of a consent, the consent authority must take into account relevant considerations under section 79C(l) (s 96(3); see [5.1180]-[5.1490]). In exercising this discretion, the consent authority is required to consider the totality of the proposed development as modified: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433.

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Honour stated that the power to modify a consent (s 96) is a free-standing provision which meant that the restriction under s 76A, which required that development be carried out in accordance with a consent and the LEP) did not apply. Thus a section 96 application could be approved despite the development being in breach of a development standard. A SEPP 1 objection was not needed, nor available, as it could only be used for a development application for the purpose of gaining consent, and the consequence of a s 96 application is not the granting of consent, but rather the consent as modified (North Sydney Council v Michael Standley & Associates Pty Ltd followed).

Modifying conditions [5.2380] The section 96 procedure cannot be used as an indirect means of challenging a condition imposed on the original consent (Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236). It has been held that in order to properly assess and consider an application to modify a condition of consent, it is generally important to have regard to the perceived reason why the condition was imposed in the first place (Randall Pty Ltd v Willoughby City Council (2004) 137 LGERA 25). While a contribution condition under section 94 (see [5.1890]) can be modified under section 96, it cannot be imposed for the first time (Arkibuilt Pty Ltd v Ku-ring-gai Council [2006] NSWLEC 502; Peter Duffield and Associates Pty Ltd v Canada Bay City Council [2002] NSWLEC 168). The position with regard to conditions relating to planning agreements (see p 229) is different. In Progress & Securities Building Pty Ltd v Burwood Council (No 2) [2008] NSWLEC 135, Jagot Jin the Land and Environment Court held that a condition authorised by section 931(3) of the Act, requiring a planning agreement to be entered into in terms of an offer made by the developer, can be imposed on a modification approval. In Bena/up Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257, Stein Jin the Land and Environment Court held that the consent authority could not approve a section 96 application by modifying conditions of the development consent other than in the terms sought in the section 96 application. However, the Court of Appeal has reserved its view on this matter and hinted that there may be a limited power to grant conditional approval to a section 96 application (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433).

Development standards

Public participation

[5.2370] In North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 97 LGERA 433, the NSW Court of Appeal held that what is now section 96 is a free-standing provision meaning that a modification application may be approved notwithstanding the development would be in breach of an applicable development standard were it the subject of an original development application. Development standards, therefore, are not binding but are rather matters for the consent authority's consideration under section 79C in the determination of a section 96 application.

[5.2390] The Regulation contains several provisions relating to the notification and advertising of different types of modification applications. In King v Bathurst Regional Council [2006] NSWLEC 505, the Land and Environment Court held that a failure to notify a modification application in accordance with the Regulation is "fatal" to the validity of any purported determination of the application.

More recently in Gann v Sutherland Shire Council [2008] NSWLEC 157 Lloyd J also held that c~nsent authority could modify a development consent which would result in non-compliance w~th development standards in an LEP, and that that this modification could be approved without the need for a SEPP 1 objection (now a cl 4.6 exception under the Standard LEP). His

Modification applications based on minimal environmental impact only need to be notified or advertised if specifically required by a development control plan (cl 117; Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594 ). There are complex provisions dealing with notification and advertising where the modification application argues that the proposed development is "substantially the same" development. Designated development and certain types of advertised development must be advertised in a

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local newspaper and notified to each person who made a submission in relation to the original development application (cl 118). For development not falling into these categories, subject to any specific provisions in a development control plan, at a bare minimum an application must be advertised for fourteen days (cll 119(2), 119(3)). Applications for modification of development consents must be made available for public inspection by the consent authority (cl 121).

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Revocation of consent Consents that ore incompatible with o draft EPI

Alternative to o modification application

[5.2430] Consents given by a local council can be revoked or modified by the council or the Secretary of the Planning Department if they are incompatible with the provisions of a draft SEPP or LEP (EPA Act, s 96A(l). The Secretary can make the decision if the consent is incompatible with a draft SEPP, and local councils have the power in relation to draft LEPs. Councils may also use this power in respect of complying development for which a complying development certificate has been issued (see [5.630]), even where the certificate was issued by an accredited certifier rather than the council (s 96A(2)). However, the power to revoke or modify cannot be used where the consent was granted by the Land and Environment Court or the Minister (s 96A(9)).

[5.2410] Where more substantial changes to the development are proposed (eg, allowing access by members of the public to a staff and client canteen, as in Woollahra Municipal Council v D ' Albora Marinas Pty Ltd (1992) 75 LGRA 46), there is nothing to stop the developer making a completely fresh application for development consent, which might be subject to a condition requiring the surrender of the earlier consent (s 80A(l)(b)). See also Waverle)' Council v CM Hairis Architects [2002] NSWLEC 180.

A consent can be revoked or modified at any time before the development is completed. It is not restricted to those cases where the development has not yet begun (s 96A(l)). So, where the development involves use for a particular purpose, it seems that the consent to carry out the particular use can be withdrawn at any time. However, any person aggrieved by such a decision is entitled to receive compensation for money spent in the period the consent operated, where this expenditure is rendered useless by the decision to revoke or modify (s 96A(7)).

Appeals [5.2400] While the applicant can generally appeal to the Land and Environment Court against a decision not to amend a consent or failure to determine an application for amendment (s 97 AA), third-party objectors, even to designated development, have no right to appeal against the decision of a consent authority to permit modifications to be made.

Development already carried out [5.2420] The Land and Environment Court has held that if a development has already been carried out, a modification application relating to it can be still be made under section 96: ie it can be used retrospectively (Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2002] NSWLEC 90; Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240; Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257; Steelbond (Sydney) Pty Ltd v Marrickville Municipal Council (1994) 82 LGERA 192).

It is not relevant to the exercise of the power under section 96 that the applicant might have carried out development in breach of the conditions of the development consent sought to be modified Uonah Pty Ltd v Pittwater Council [2006] NSWLEC 99). If approved under section 96, the modification removes the unlawful nature of the development (Willoughby City Council v Dasco Design and Construction Pty Ltd [2000] NSWLEC 257). In Windy Dropdown Pty Ltd v Warringah Council (2000) NSWLEC 240, Talbot J explained that, broadly construed, section 96 enabled consent authority to deal with unexpected developments as they arose during construction or subsequently, provided the development to which the consent as modified was "substantially the same". His Honour believed that "the language of s 96 .. . itself does not mandate against retrospective development" (at [27]), and subsequently approved the s 96 modification application on its merits. A question which Talbot J did not have to consider in this case was whether a new construction certificate could be issued for the modified works (ie a retrospective construction certificate) . This his Honour decided in the affirmative on this question in Marvan Properties Pty Ltd v Randwick City Council [2005] NSWLEC 9. However, subsequent amendment to the EPA Act effectively overturned this decision, as the Planning Department was of the opinion that construction certificates should not be issued respectively (see [5.1790]).

a

Before the decision is made, all those who might be "adversely affected" by the proposed revocation or modification must be notified and allowed to appear before the Secretary or council to put their case (s 96A(3)). The person who initially applied for the consent and anybody else who is now entitled to make use of the consent can appeal (within 3 months) to the Land and Environment Court against any revocation or modification (s 96A(5)) .

Lapsing of consent [5.2440] Development consents can simply lapse in certain circumstances. The general position is that the consent lapses after five years (s 95(1)). The consent authority can reduce that time when granting the development consent, but may not impose a period of less than two years for consent to erect or demolish a building or subdivide land (ss 95(2), 95(3)). In May 2010, however, amendments were made to the Act restraining the power to reduce the five year time period. The Act was amended to provide that no reduction can be made before 1 July 2011, and during any subsequent period prescribed by regulation (s 95(3A)). Further, any reduction to a development consent that was in force as at 22 April 2010 is to be disregarded (s 95(3A)).

In Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214, the Land and Environment Court held that as all the powers and conditions for the lapsing of consent or the completion of development are to be found in section 95, it is beyond the consent authority's powers under the Act to impose a condition of development consent providing that the consent would lapse if the condition was not complied with. Nor can an application be made under the modification procedure in section 96(1A) (see [5.2340]) to substitute a condition providing that the consent would lapse in two years with one providing it would lapse in five years (Kinder Investments Pty Limited v Sydney City Council [2005] NSWLEC 737). See also Reid's Farms Pty Ltd v Murray Shire Council [2010] NSWLEC 127.

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The lapsing period only commences to run when a consent operates. Thus, if a development consent is subject to a deferred commencement condition (see [5.1530]) it does not operate until the consent authority notifies the applicant in writing that the deferred commencement condition has been satisfied. The effect of a deferred commencement consent is to suspend the operation of a consent (CSR Ltd v Fairfield City Council [2001] NSWLEC 221).

Extension of time [5.2450] If the consent authority fixes a period of less than five years when granting consent, the applicant or any other person entitled to rely on the consent can apply, before the period expires, for an extension of one year (s 95A(l)). The extension can be granted if the consent authority is satisfied that there are good reasons for an extension (s 95A(2)). There is ordinarily a right of appeal to the court if the extension is refused (s 95A(3)) . These provisions do not apply to complying development (s 95A(5); see [5.590]). In Derodo Pty Ltd v Ku-ring-gai Municipal Council (1992) 77 LGRA 1, Bignold Jin the Land and Environment Court granted an extension at a time when development consents lapsed after two years. The validity of the initial grant of consent had been challenged by objectors and was still before the courts after the two-year commencement period. In addition, the developer was in receivership and was reluctant to spend money while the validity of the consent was in doubt. It did not matter that the developer might not commence the consent within the extended period, but instead use it in negotiations with the council for a modified development on a reduced scale. The fact that the consent should not have been given in the first place on planning grounds was not a reason for refusing an extension, but it might have been different if planning circumstances had changed since the consent was given.

Preventing consent lapsing [5.2460] 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 before the date on which the consent would otherwise lapse (s 95(4)). Development consent for other development does not lapse if the use of any land, building or work the subject of that consent is "actualiy commenced" (s 95(5)). A deferred commencement consent (see [5 .1530]) lapses if the applicant fails to satisfy the consent authority as to the matter specified in the condition within five years from the grant of the consent or, a shorter period that has been specified (s 95(6)). For work to constitute commencement, it must be in accordance with the terms of the consent (Smith v Wyong SC (1984) 53 LGRA 176; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132).

Physical commencement [5.2470] The question of what is sufficient to constitute physical commencement was answered in Hunter Development Brokerage Pty Ltd v Cessnock City Council [2005] NSWCA 169, where the Court of Appeal considered a subdivision of land involving the carrying out of physical work such as the provision of roads, water, sewerage and drainage. In each case survey work had been carried out prior to the relevant lapsing date, involving some clearing of vegetation, digging of

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holes and placing of survey pegs. There had also been some geotechnical investigations. The Land and Environment Court had held that the work was not engineering work and the consent had lapsed as the work was "preparatory" to commencement and not commencement itself. The Court of Appeal held that there were three questions to be answered under section 95(4) in deciding whether the consent had lapsed:

• was the work relied on building, engineering or construction work? • if so, did it relate to the approved development? • if so, was it physically commenced on the land to which the consent applied prior to the relevant lapsing date?

The Court held that once consent was granted for a subdivision, the implementation of that consent required as a necessary first step in the engineering or construction of that subdivision, the setting out by survey upon the land of each of the component elements of the subdivision in accordance with the approved plan. The carrying out of survey work referable to the development consent to establish the correct location of these elements was capable of constituting a first step in the performance of the engineering and/or construction work involved in the creation of a subdivision. It was not merely preparatory work. The natural and ordinary meaning of the expression "engineering work" in the relevant context was capable of including physical survey work of the nature and extent in the case before the Court. The required connection or relationship was satisfied if the relevant work was a necessary step in, or part of, the process required for, or involved in, the subdivision of the land. For the work to be "physically commenced" physical activity which manifested itself on the land and which was not merely a sham was required. Material change to the physical nature of the land was not required. Clearing vegetation and hammering in survey pegs, when done in a way that related to the development consent, was sufficient for physical commencement. In Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252, Biscoe Jin the Land and Environment Court held that survey work carried out in order to produce engineering drawings were engineering works for the purposes of s 99 of the EPA Act (the predecessor to s 95). Other engineering works which fall withins 95 were considered at as well (at [35]), though it was stated that if the works were not lawfully conducted, those works will not prevent the lapsing of a consent (at [36]; see [5.2490]). See also Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9.

Demolition work referable to a development consent has also been held to constitute physical commencement (Smith v Wyong Shire Council [2008] NSWLEC 115), as has soil testing and remediation engineering work (Zaymill Pty Limited and Maksim Holdings Pty Limited v Ryde City Council [2009] NSWLEC 86). Digging foundations, therefore, would certainly amount to physical commencement, but not prefabrication work done off the site.

Preconditions to commencement [5.2480] In many cases, development consents are granted subject to conditions requiring things to be done before work commences. In Detala Pty Ltd v Byron Shire Council [2002] NSWCA 404, for example, the consent was subject to the specific condition that a plan be provided to and approved by the council' s planning manager before work commenced. The court found that the appellant had complied with all other requirements of the development consent in order to commence the development and did everything possible to obtain that approval. The reason why approval was not granted was that the council itself was determined to obstruct the development.

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The court held that, in that circumstance, it would be wrong to hold that the other work done by the appellant was not sufficient to commence the development and prevent the consent lapsing.

Work commenced in breach of the consent [5.2490] It has been held that if building, engineering or constructions work is commenced in breach of the development consent, either because it does not come under the consent or because a condition of consent is not met, the development is unlawful. Such work therefore does not prevent the consent from lapsing (Green v Kogarah Municipal Council [2001] NSWCA 123; Iron Gates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132; Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317; Besmaw Pty Ltd v Sutherland Shire Council 12 7 LGERA 413; Reysson Pty Ltd v Roads and Maritime Services (2012) 188 LGERA 252). The courts have taken a strict approach in this regard.

In Department of Environment and Climate Change v Olmwood Pty Ltd [2010] NSWLEC 15, the accused was charged with clearing native vegetation without consent. Development consent had been granted but the issue was whether it had lapsed because it had not been physically commenced. The consent contained a condition to the effect that no work w1ls to commence until a permit under other legislation had been issued by the Department of Land and Water Conservation. No such permit was obtained prior to survey work. The Court held that the survey work was not authorised under the terms of the development consent and could not be relied upon as constituting physical commencement.

If development requires a construction certificate (see [5.1790]) and is commenced without one, it has commenced in breach of a development consent because a construction certificate is deemed to form part of a development consent (see [5 .1810])).

Enforcement of consents

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An offence under section 125 is a strict liability offence (Power v Pentill House Pty Ltd (1993) 80 LGERA 247; see [2.620]). The offence must be proved beyond reasonable doubt, not on the balance of probabilities, which is also stipulated in s 125A of the Act. Until recently, a drawback to bringing criminal proceedings was that there was no provision allowing the court to order a convicted defendant to remedy the breach - for example, by pulling down a building that has been erected without development consent. The only exception was where the breach consists of damage to trees or vegetation, when an order can be made requiring these to be replaced and maintained (s 126(3)). However, the same set of amendments to the EPA Act that commenced on 31 July 2015 also now means that the Land and Environment Court has a range of sentencing options available to apply to guilty criminal offenders (s 126(2A)). Consistent with the Protection of the Environment Operations Act 1997, the Court can impose various orders in addition to, or as an alternative to, a monetary penalty for planning offences. These include orders:

•

to prevent, control, abate or mitigate any harm to the environment caused by the commission of the offence, including orders to reverse or rectify any unlawful development or activity related to the commission of the offence

• enabling a public authority to recover certain costs and expenses it has incurred as a result of the commission of the offence • requiring the offender to pay back any monetary benefits gained by committing the offence • requiring the offender to give public notice of the offence, for example in local or regional newspapers • requiring the offender to carry out public environmental projects or social or community activities for the benefit of affected communities • requiring the offender to attend training or other courses.

A court order to carry out an environmental restoration or enhancement work or program can also be supported by requiring financial assurances from the offender to the Environment Protection Authority for the work or program.

Offences [5.2500] It is a criminal offence if a developer does not comply with the terms of a consent or any conditions attached to it (ss 76A(l), 125) . This is also the position if the consent is no longer in force because it has lapsed or been revoked. New penalty provisions for offences against the EPA Act commenced on 31 July 2015. This introduced a new three tier system of penalties for offences brought in the Land and Environment Court, classified according to the severity of the offence (ss 125A, 125B, 125C). Maximum penalties for each tier of offence are:

• Tier 1: corporations - $5 million; individuals - $1 million • Tier 2: corporations - $2 million; individuals - $500,000 • Tier 3: corporations - $1 million; individuals - $250,000.

Daily penalties for each day that an offence continues also apply. The maximum for an offence against the Regulation (s 125(2)) remains $110,000, subject to any provision in the Regulation that prescribes a different maximum penalty for a particular offence (s 125D). If the prosecution is brought in the Local Court, the maximum penalty is 1,000 penalty units (s 127(3)), which is currently $110,000.

Civil enforcement [5.2510] An alternative to criminal prosecution is civil proceedings in the Land and Environment Court (s 123; see [2.690]) . These may be brought if a remedial order rather than criminal punishment is sought, or if an order is needed to restrain a threatened breach. Although these proceedings will often be undertaken by council officers, ordinary members of the public and conservation groups can bring them.

• • •

The Court can make any order suitable to remedy or restrain the breach (s 124(1)), including: an order requiring the demolition of buildings an order requiring the reinstatement of buildings to their former condition an order restraining land, work or buildings from being used for purposes that are not permitted (s 124(2)).

In Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59, the High Court of Australia held that the Act allows the Land and Environment Court to make orders against anyone who

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uses land in a manner not permitted by a development consent. However, the High Court also held that sections 123 - 124 are not to be read as conferring power on the Court to make orders to remedy or restrain breaches of the Act against those who were not themselves in breach of the Act or who, unless restrained, would be in breach of the Act. An order directed to a person who was not actually in breach of the Act, and not threatening to act in breach, would neither remedy nor restrain any breach. See also Wilkie v Blacktown City Council (2002) NSWCA 284.

Failure to obtain a development consent (5.2520] Where the breach involves a failure to obtain a development consent, the court can adjourn the proceedings to give the developer an opportunity to submit a development application and try to obtain consent (s 124(3)). Special provisions apply in proceedings concerning the validity of a development consent (see [5.2620]).

Can criminal proceedings also be taken? (5.2530] Once proceedings under section 123 have been commenced, the defendant cannot be convicted and fined in criminal proceedings except where the Court refuses to make an order (s 127(7), 127(8)). The two types of proceedings are alternative responses to wrongdoing, the one remedial and the other primarily punitive.

Authorities challenging their own consents (5.2540) Proceedings under section 123 can be, and sometimes are, used by consent authorities to challenge development consents previously granted by them in error. In Hawkesbury City Council v Sammut [2002] NSWCA 18, the NSW Court of Appeal held that a council is not estopped from asserting that a use to which it had previously granted conditional consent was invalid because it was in fact prohibited. See also Holidays-A-Float Pty Ltd v Hornsby Shire Council (1992) 75 LGRA 127; Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23. In City of Sydney Council v Waldorf Apartments Hotel Sydney Pty Ltd [2008] NSWLEC 97, Pain J held that the Council was not estopped from bringing proceedings seeking a declaration that a building was being used for the purposes of serviced apartments without the requisite approval, despite Council officers making representations to the operator of the site that

development consent was not required for that use.

Orders (5.2550] The following bodies can issue orders as additional means of enforcing development consents (EPAAct, s 121B(1)):

• councils • the Minister or the Director-General, if either is the consent authority • other bodies exercising functions as a consent authority. Only a council can give orders in relation to complying development for which a complying development certificate has been issued (s 121B(l)(b)).

Council orders (5.2560] Orders that may be given by consent authorities include:

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an order to a person entitled to act on a development consent directing the person to comply with the development consent (s 121B, Order No 15) an order requiring the completion of development if development has been commenced within the period required (see [5.2440]), but is not yet completed (s 121B, Order No 16) an order that subdivision works be carried out, if there has been a failure to carry out the subdivision works in accordance with the development consent or any agreement between the applicant and the council (s 121B, Order No 17) an order to cease carrying out specified building work or subdivision work, if the building work or subdivision work is being carried out in contravention of the Act or in a manner that affects the support of adjoining premises (s 121B, Order No 19). Other orders allowed by section 121B include: orders to demolish or remove a building erected without development consent (Order No.2) orders not to demolish a building where development consent is required for the demolition and has not been obtained (Order No 3) orders requiring demolition or repair of a building that is likely to become a danger to the public (Order No 2; Order No 4) orders to cease the use of a building where this poses a life-threatening hazard or threat to public health or safety (Order No 9).

Notice of intention to give an order must be given to a person to whom an order is proposed to be given. That person must be given an opportunity to make representations (ss 121H, 1211). If, after considering any representations, the council decides to go ahead, it must give reasons for the order, and specify a reasonable time for compliance (ss 121K, 121L, 121M). The person to whom an order is given has the right to appeal to the Land and Environment Court (ss 121N, 121ZK).

Failure to comply (5.2570] If a person fails to comply with an order, the consent authority can carry out the work and the costs of doing so can be recovered from the person required to comply (s 121ZJ).

Invalid orders (5.2580] An order is invalid if it fails to provide reasons as required by section 121L (Cassiniti v Canada Bay Council [2002] NSWLEC 144). Furthermore, the court has held that incorrect references to statutory planning documents such as LEPs and development control plans will lead to the same result. Similarly, where the subject matter of the order changes between the giving of the council's notice of intention to issue the order and the giving of the order itself, the order will be held to be invalid (Lederer v Sydney City Council [2001] NSWLEC 272). In Barclay v Wollongong City Council [2005] NSWLEC 160, the Land and Environment Court considered the validity of an order requiring "all action necessary to bring about the compliance" with a development consent but did not particularise how the recipient of the order should implement the action. In finding that the order was invalid, Talbot J considered that there were a number of alternative ways in which the order could have been implemented and the Council had a responsibility to specify the action it believed necessary to comply with the conditions of development consent.

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Notices issued by accredited certifiers (5.2590] An accredited certifier who is the principal certifying authority for any development

(see [5.1860]) may serve a notice on a person of an intention to issue an order un?er section 12_1B (s 109L(l)). If the principal certifying authority complies with a number of requ~r~ments re!atmg to representations in response to this notice (see s 109L(2)), the procedural prov1s10ns relatmg to orders under section 121B (discussed above) then have effect.

Building certificates (5.2600] Where a building has been erected unlawfully, an application can still be ma_de for _a building certificate under section 149A of the EPA Act. The council must '.ssue the certificate rf there are no grounds for taking action (eg, by ordering the building's alteration or demoht10n), or it does not propose to take action even though there are grounds for doing ~o- (s 149D). It can require the applicant to carry out work on the building before it grants the certificate (s 149D(5)). If it refuses to issue a certificate, it must inform the applicant of the reasons for refusal (s 149D(2)). There is a right of appeal to the Land and Environment Court against refusal to grant a certificate or failure to issue one within 40 days (s 149F(l)). The appeal must be lodged within 12 months (s 149F(2)).

In Ireland v Cessnock City Council [1999] NSWLEC 153, Bignold J in the Land and Environment Court held that the issue of a building certificate, where council is not bound to issue one is discretionary. In such circumstances, he considered that the council could issue a building ~ertificate where the building was subject to an order requiring demolition. This would have the effect of negating the order. See also Williams v Blue Mountains City Council [2001] NSWLEC 73.

The effect of a building certificate (5.2610] A building certificate does not protect the holder against criminal proceedings for

constructing the building without consent or in breach of consent conditions, or the makmg of a fire safety order (Order No 6) under s 121B of the Act (s 149E(3)). What it ~oes d~ is to pre:ent the council from making an order (with the exception of Order No 6), or takmg CIVll proceedmgs in court for an order based on existing faults, that (s 149E(l)):

• •

(5.2640]

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[2.350]), it is based on the consent authority's failure to have proper regard to the matters specified in section 79C (see [2.410]). A challenge could also be based on the interpretation of the applicable environmental planning instrument: for example, there may be an argument that the development was prohibited, and there was therefore no power to grant consent. There is a special provision in the legislation that restricts the circumstances in which the courts can declare a consent invalid where the consent authority is the Minister (s 102). In all these instances the request is for judicial review of the decision-making process. The court cannot substitute its own decision as it can where there is a merit appeal. But merit appeal rights in this area are very limited, and judicial review proceedings offer some redress in extreme cases (see [2.350]-[2.540]).

It has been held that a challenge to the validity of the conditions of a development consent is a challenge to the consent (Anambah Homes Pty Ltd v Maitland City Council [2004] NSWLEC 615; Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455).

Time limits on legal proceedings (5.2630] If public notice of the granting of a consent or a complying development certificate is given in accordance with the Regulation, any challenge to its validity must be brought within the next three months (s 101; Breitkopf v Wyong Council (1996) 90 LGERA 269; PW Rygate & West v Shoalhaven City Council (1996) 91 LGERA 417; Coles Supermarkets Australia Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 341). This is known as a privative clause (see [2.510]). Public notice is given when the consent authority publishes in a local newspaper a notice that describes the land and the development and states that the consent or certificate can be inspected (cl 124 ). Where public notice is not given, there is no time limit on proceedings: see Levenstrath Community Association Inc v Tomies Timber [2000] NSWLEC 95.

In Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, the Land and Environment Court held that a challenge to the validity of a consent on the basis of an alleged failure to consider relevant matters under section 79C of the EPA Act was subject to the three month time limit. In Currey v Hargraves [2007] NSWLEC 471, it was held that challenges to a consent based on a lack of a valid delegation, and the failure to comply with a clause of an LEP requiring the Council to be satisfied of certain matters, could not be brought outside of the three month period.

requires the building to be repaired, demolished, altered, added to or rebuilt, or relates to any encroachment by the building on land under the control of the council.

The certificate also prevents a council from taking action for seven years in relation to matters arising from the deterioration of the building as a result solely of fair wear and tear (s 149E(2)).

When the time limit does not apply Manifest jurisdictional error (5.2640] The courts have held that section 101 does not operate to impose a time limit on a challenge to a decision where:

Challenging the validity of consents (5.2620] Proceedings can be brought under section 123 that challenge the validi~y of a consent, rather than seeking to enforce it (see [2.690]). A challenge may be based on a failure to comply with procedural requirements for the determination of a development application, such as a requirement to give public notice. Frequently, where there is no provision for a merit appeal (see

• there has not been a good faith attempt to exercise a power or • the decision does not relate to the subject matter of the legislation or • the decision is not reasonably capable of reference to the power given to the decision-maker.

This three part test is known as the Hickman Principle (see R v Hickman; Ex parte Fox (1945) 70 CLR 598; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455).

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Effectively this common law principle, where found to apply, displaces the statutory protection from legal challenge afforded to development consents by section 101.

Essential requirements [5.2650] Section 101 does not impose a time limit on a challenge to the validity of a

development consent where there is a 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 "essential", "indispensable", "imperative" or "inviolable": Lesnewski v Mosman Municipal Council [2005] NSWCA 99; Woolworths Pty Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455). In Lesnewski v Mosman Municipal Council [2005] NSWCA 99, the Court of Appeal affirmed that a proven denial of procedural fairness is not barred from challenge by the operation of section 101 (see also Clark v Wollongong City Council [2008] NSWLEC 110). In Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, the Court of Appeal held that section 101 did not prevent the applicant from challenging a condition requiring the dedication of land to the council free of cost in circumstances where the relevant contributions plan did not authorise such a condition.

[5.2690]

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In Warringah Shire Council v Sedevcic (1987) 63 LGRA 361, Kirby P set out a number of factors to be considered by the Court when exercising discretion under section 124 of the EPA Act. These include:

• whether the breach was a purely technical one that would not be noticed unless someone is well versed in the law

• whether the applicant delayed in bringing the case, and the effect of that delay • the nature and extent of environmental effects of the breach • the obvious intention of the Act that normally those concerned in development and use of the environment will comply with the terms of the legislation • that discretion not to grant relief is more likely to be used where the development is static and the situation can only be remedied at great cost or inconvenience, as compared with ongoing conduct which can more easily be modified to bring it into compliance with the law.

Postponing or limiting orders

See also the reference in Chapter 2 ([2.510]) to the possible implications of the more recent decision of the High Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1.

[5.2680] The Court may postpone orders, or limit the operation of orders to soften their impact, if it considers this appropriate (see ]arasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 102-107; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 216-217; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 201-203; Normans Plant Hire Pty Ltd v South Coast Concrete Crushing and Recycling Pty Ltd (No 2) [2006] NSWLEC 734; Barton v Orange City Council [2008] NSWLEC 104 and Hawkesbury City Council v Agostino [2009] NSWLEC 176).

Conditional validity

State significant projects

[5.2660] When the Land and Environment Court is dealing with a challenge to the validity of a development consent such as that discussed above, it must consider whether it should make an order for conditional validity of the consent. This means that instead of declaring the consent invalid, it may suspend its operation and specify the terms required to validate it (Land and Environment Court Act 1979, s 25B). The consent authority may at a later point apply for an order to validate the consent and to have the suspension revoked if those terms have been substantially complied with (s 25C). Alternatively, the consent authority can revoke the development consent and, if the terms imposed by the Court have been substantially complied with, grant a new development consent without taking any other preliminary steps (EPA Act, s 103 ). Neither the applicant nor any third party objector has a right of appeal against the consent (s 104)).

Discretion [5.2670] Aside from making an order for conditional validity, the Land and Environment Court has a wide discretion to make such orders as it thinks fit to remedy the breach (s 124; F Hannan Pty Ltd v The Electricity Commission of NSW (No 3) (1985) 66 LGRA 306; Warringah Shire Council v Sedevcic (1987) 63 LGRA 361; Sutherland Shire Council v Nader [2007] NSWLEC 363).

P a rt 3 A [5.2690] Part 3A of the EPA Act was inserted in 2005. It set out a new procedure, separate from Part 4, for assessing and carrying out certain major projects. The intent was to streamline the approval and implementation process for these projects and to focus decision-making power in the hands of the Planning Minister.

A project became a Part 3A project if it was declared as such by a SEPP or by order of the Minister (previous s 75B(l)). The projects that could be declared included major infrastructure projects and development that in the opinion of the Minister was of State or regional environmental planning significance. Part 3A operated generally to the exclusion of Parts 4 and 5 of the Act. One of its features was that it allowed for the approval of a concept plan for a project where it was appropriate to resolve up-front certain critical matters in relation to the project and to simplify the issuing of subsequent aprovals. A further level of streamlining applied if the project was declared to be a critical infrastructure project. The Minister could declare a project to be a critical infrastructure project if of the opinion that it would fall within a category that was essential to the State for economic, environmental or social reasons (previous s 75C).

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[5.2750]

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Repeal of Part 3A

Development prohibited by EPis

[5.2700] With the change in Government in 2011, the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 was enacted to repeal Part 3A, and came into operation on 1 October 2011. Despite this, some proposals continued to be processed under Part 3A as a result of transitional arrangements relating to the repeal. These proposals included those for which environmental assessment requirements were notified before the repeal and those specifically declared to be subject to the transitional procedures. These procedures are spelt out in detail in Schedule 6A to the EPA Act.

[5.2730] ~onsent ca~not be given to a development that is "wholly prohibited" by an EPI, altho_u~~ 1t can be given to "partly prohibited" development (s 89E(2), 89E(3)). However, proh1bltlons on development can be removed by an amending EPI, and this is facilitated in the new pro'."isions. by allowing this to be done at the same time that an application for development consent 1s considered (s 89E(5)). In these circumstances, the Planning Assessment Commission not the Minister, becomes responsible for making the EPI and deciding whether or no; development consent should be granted (s 89E(6)).

The repeal reflected the incoming Government's policy to return decision-making powers to local government. The Amendment Act introduced two new categories of development, State significant development and State significant infrastructure. Procedures for these new categories of development are found in Part 4, Division 4.1 - State significant development, and Part 5 .1 State significant infrastructure. Projects covered by the new procedures include:

• projects that deliver large-scale transport and utility infrastructure such as major road and rail projects, electricity generation, water and sewerage systems and telecommunications • projects that provide major social infrastructure to the community such as large scale hospitals, universities and cultural facilities • projects with significant environmental impact such as large scale mining resource and primary industry projects • projects of significant economic benefit to the State or national economy. State significant development

[5.2710] The Minister can declare development to be State significant in a SEPP (s 89C(2)). Alternatively specific development can be declared to be State significant by order published in the Government Gazette provided that advice from the Planning Assessment Commission as to its State or regional planning significance has first been obtained and made publicly available (s 89C(3)). State Environmental Planning Policy (State and Regional Development) 2011 commenced on 1 October 2011 and identifies development that is State significant development, State significant infrastructure, or critical State significant infrastructure. See also Chapter 3, [3.460], where this SEPP is discussed further.

Development consent from the Minister [5.2720] Development consent from the Minister under Part 4 of the Act is required for State significant development (s 89D), but the Minister can delegate this decision to any public authority, including the Planning Assessment Commission or the Secretary of the Planning Department (s 23 ). The factors set out in section 79C must be considered before the decision is made (s 89H; see [5.1180]).

The application and an environmental impact statement (s 78A(8A)) must be placed on public exhibition for at least 30 days, and anybody can make a written submission (s 89F). Amendments to an application do not have to be re-exhibited if the Secretary decides that the environmental impact has been reduced by the proposed changes (s 89F(4)).

Bypassing other decision-makers [5.2740] I~ development consent is granted, successful applicants are exempted from a range of other reqmrements (s 89]), significantly restricting the regulatory role of other government agencies:

• concurrence under Part 3 of the Coastal Protection Act 1979 (see Chapter 14, [14.730]) • certai? perm~ts under the Fisheries Management Act 1994 (s 201: dredging work; s 205: harmmg manne vegetation ands 219: blocking fish passage) • approvals to carry out activities restricted by section 57 of the Heritage Act 1977 (see [17.290]), and excavation permits under section 139 (see [17.440]) • Aboriginal heritage permits under section 90 of the National Parks and Wildlife Act 1974 (see [20.730]) • approvals under the Native Vegetation Act 2003 to clear native vegetation (see [12.1380]) or State protected land (see [11.90]) • bush fire safety authorities under section 100B of the Rural Fires Act 1997 • approvals under sections 89 (water use), 90 (water management work) and 91 (controlled activity, other than aquifer interference) of the Water Management Act 2000 (see [14.1150]). A number of other authorisations still have to be obtained, but they cannot be refused if they are necessary for the carrying out of an approved project, and they must be substantially consistent with the development consent (s 89K):

• aquaculture permits under section 144 of the Fisheries Management Act 1994 (see [19. 700]) • approvals under section 15 of the Mine Subsidence Compensation Act 1961 (see [18. 710]) • mining leases under the Mining Act 1992 (see [18.180]) • production leases under the Petroleum (Onshore) Act 1991 (see [18.1090]) • initial environment protection licences under the Protection of the Environment Operations Act 1997 (see [9.670]) • consents under section 138 of the Roads Act 1993 • licences under the Pipelines Act 1967 Appeal by objectors [5.2750] Third-party merit appeal rights (see [2.350]) are only available where State significant development would have been designated development if it had not been declared State

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significant development (EPA Act, s 98(4 ). Even then, the appeal right is lost where there has been a public hearing by the Planning Assessment Commission (s 98(5)).

State significant infrastructure [5.2760] State significant infrastructure does not require development consent under Part 4 of the EPA Act but an approval from the Minister under Part 5.1 of the Act (ss 115W, 115ZF(l)). Infrastructure is broadly defined to include such things as roads, railways, pipelines and telecommunications, as well as reserve management (s 115T). It will usually be carried out by public authorities, but infrastructure carried out by the private sector is also covered. Infrastructure can be declared to be State significant in a SEPP (s 115U(2) which, since 1 October 2011, has been State Environmental Planning Policy (State and Regional Development) 2011. Alternatively, specific infrastructure can be declared to be State significant in an order from the Minister amending a SEPP, published on the NSW legislation website (s 115U(4)). Apart from this limited role for SEPPs, EPis do not apply to State significant infrastructure (s 115ZF(2)(a)). The Secretary of the Planning Department prepares environmental assessment requirements for those applying for approval, in consultation with "relevant public authorities" (s 115Y(l), 115Y(3)). An environmental impact statement (but not a separate species impact statement) must be prepared (s 115Y(2)) and put on public exhibition for at least 30 days (s 115Z). Anybody can make written submissions and the Secretary has the discretion to require the proponent to respond and to submit a preferred infrastructure report outlining any proposed changes (s 115Z(6)). This report can be made publicly available if the Secretary considers that significant changes are proposed (s 115Z(7)). The Secretary then prepares a report for the Minister, including advice provided by other public authorities (s 115ZA). In reaching a decision, the Minister must consider the report, but there is no equivalent of the list of considerations that consent authorities must consider under Part 4 of the Act (s 79C). The applicant can choose to make a staged infrastructure application which simply sets out concept proposals, leaving the detailed proposals for separate parts of the infrastructure to be deal with in subsequent applications for approval (s 115ZD).

Bypassing other decision-makers [5.2770] As with State significant development, State significant infrastructure is exempted from a range of requirements found in other legislation (s 115ZG), while other authorisations cannot be refused and must be consistent with the Minister's approval (s 115ZH) (see [5.2740]). In addition, there are no rights of merit appeal against the Minister's decision, but judicial review proceedings questioning the validity of an approval can be brought within three months (s 115ZJ(l)), though the grounds of review are constrained (s 115ZJ(2)).

Critical State significant infrastructure [5.2780] State significant infrastructure can be declared to be critical State significant infrastructure if the Minister concludes that it is essential for the State for economic, environmental or social reasons (s 115V). In these circumstances, the legislation goes even further

(5.2780)

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in restricting the role of other government departments by excluding the use a range of orders, including environment protection notices under the Protection of the Environment Operations Act 1997 and orders under s 121B of the EPAAct (ss 115ZG(3), 115ZF(4); see [9.920]; [5.2550]). In addition, the role of the courts is severely restricted by requiring the Minister's consent before proceedings can be brought by a third party to remedy or restrain breaches of the Act, including breach of a condition attached to an approval (s 115ZK).

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Introduction ..................................................................................................................................................................... [5.20] When does Part 5 apply? ........................................................................................................................................ [5.30] Decision-makers under Part 5 ........................................................................................................................... [5.120] Environmental impact assessment ................................................................................................................ [5.150] The decision-maker .................................................................................................................................................. [5.31 O] Monitoring ..................................................................................................................................................................... [5.350] Enforcement ................................................................................................................................................................ [5.350]

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[6.10] In this Chapter, the "Act" or "EPA Act" refers to the Environmental Planning and Assessment Act 1979 (NSW) and the "Minister" refers to the Minister administering this legislation (the Planning Minister, currently the Minister for Planning). "Secretary" refers to the Secretary of the Planning Department, currently the Department of Planning and Environment. The "Regulation" or "EPA Regulation" refers to the Environmental Planning and Assessment Regulation 2000 (NSW).

[6.70]

chapter 6 New South Wales environmental assessment

Part 5.1 was introduced into the EPA Act in 2011 when Part 3A was repealed. It contains specific provisions for environmental assessment of "State significant infrastructure". At the same time, Part 4 was amended to include procedures for environmental assessment of State significant development (see [5.350]).

Other circumstances in which Part 5 does not apply

Introduction

[6.40] Part 5 will not apply in some circumstances, even where no approval under Part 5.1 or development consent under Part 4 is required.

[6.20] Part 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is entitled "Environmental Assessment". This is somewhat misleading as it suggests that these are the only provisions in the Act relevant to the topic of environmental assessment. In fact, there are also important environmental assessment provisions in Parts 4 and 5 .1 , and these are discussed in detail in Chapter 5.

Exempt development

The environmental assessment provisions in Parts 4, 5 and 5.1 operate at the level of project control rather than strategic planning. This does not mean that particular undertakings have to comply with all sets of provisions or that a choice can be made between the three. The legislation itself spells out which undertakings are covered by the provisions in Parts 4 and 5.1 and which by those in Part 5. Those carrying out activities that have to be assessed under Part 5 are known as "proponents" . The body responsible for deciding whether an activity should go ahead, after determining the level of environmental assessment required and taking environmental impact into account, is known as a "determining authority" (see below). As we shall see, where the proponent is a public body, it will also be a determining authority in relation to the proposed activity.

[6.50] If a project is "exempt development" under an environmental planning instrument (see [5.1270]), then it does not require assessment under Part 5 (EPA Act, s ll0(l)(i)).

Biodiversity certification [6.60] The Threatened Species Conservation Act 1995 (NSW) (TSC Act) has the effect that certain activities do not require assessment under Part 5.

If an environmental planning instrument has obtained biodiversity certification (see [6.60]), a determining authority is not required to consider the effect on biodiversity values of an activity carried out on biodiversity certified land (TSC Act, s 1261(5)), and activities are considered not to be likely to significantly affect any threatened species, population or ecological community, or its habitat (TSC Act, s 1261(4)).

When does Part 5 apply? Application of Part 4 and Part 5.1 [6.30) Part 5 of the EPA Act was originally designed to catch those undertakings which fell through the net of Part 4. If a project requires development consent under Part 4, then the environmental assessment provisions of Part 4 apply (EPA Act, s 110).

However, if a project does not require development consent under the relevant environmental planning instruments (EPis), then the project must be assessed under Part 5, subject to certain exceptions noted below. The reason for the division between assessment under Part 4 and assessment under Part 5 is primarily historical. The development control system, currently regulated by Part 4, was well established before the introduction of the EPA Act in 1979. It was therefore a simple matter to tack environmental, threatened species, and assessment provisions onto this ongoing system, requiring that these factors be taken into account when development proposals are considered. But the decision-making system did not cover all proposals. If environmental impact assessment was to take place on a systematic basis, then an additional system had to be set up. This was the purpose of Part 5 of the EPA Act.

In addition to this, if a biobanking statement has been issued in respect of a development subject to Part 5, the activity is taken to be an activity that is not likely to significantly affect any threatened species, population or ecological community or its habitat (TSC Act, s 127ZP(1)). A determining authority must impose any conditions specified by the biobanking statement if approving an activity under Part 5 of the EPA Act (TSC Act, s 127ZP(2)).

Other exemptions (6. 70] There may be other statutory exemptions from the application of Part 5. For example, the Chief Executive of the Office of Environment and Heritage is deemed not to be a determining authority when issuing a general licence to harm protected fauna under the National Parks and Wildlife Act 1974 (s 120(6)) or a scientific licence under s 132C (s 132C(6)) (see [12.720]). As a result no assessment of the impact of the licensed activity is required under Part 5 (although the assessment procedures in the National Parks and Wildlife Act 1974 would need to be followed), unless some other approval is required for that activity, or the proponent is a public authority which would itself be a determining authority for the purpose of Part 5.

In addition to this, the Courts have held that some statutes exclude the operation of Part 5 of the EPA Act. In Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; the Land and Environment Court held that the lopping of trees overhanging

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public roads pursuant to s 88 of the Roads Act 1993 did not require assessment under Part 5 (see also Oshlack v Rous Water [2011] NSWLEC 73).

Activities under Part 5 [6.80] The general position is that where a proposal is not to be assessed under Part 4 or Part 5 .1 of the EPA Act, it will be assessed, if at all, under the assessment provisions contained in Part 5. But the provisions of Part 5 do not automatically apply. It has already been noted that Part 5 does not apply to some types of development, such as exempt or prohibited development. It also has other limits.

A precondition to the operation of Part 5 is that the undertaking must fall within the definition of an "activity" in section 110 of the EPA Act.

Activities

[6,130]

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Private activities requiring approval [6.110] Part 5 also covers "activities" carried out by private concerns provided that some approval other than development consent is required.

An "approval" includes not only the giving of a consent, licence or permission for something, but also provision of financial accommodation by a determining authority to another person.

An approval could, for example, be a licence under the Water Management Act 2000 (NSW) or the Protection of the Environment Operations Act 1997 (NSW) (POEO Act) or a lease under the Mining Act 1992 (NSW). Long-standing activities protected from regulatory requirements by nonconforming use provisions (see [5.460]) will have to be assessed under Part 5 when any approvals must be renewed. However, applications for environmental protection licences under the POEO Act where the "activity" was carried out even before a licence was required do not have to be assessed under Part 5, provided the licence is for the same or substantially the same activity (POEO Act, ss 52(1), 52(2) and Protection of the Environment Operations (General) Regulation 2009, cl 48).

[6.90] "Activity" means:

• • • • • •

the use of land subdivision erection of a building carrying out of a work demolition of a building or work or anything else referred to in section 26 that is prescribed by the Environmental Planning and Assessment Regulation 2000 (EPA Act, s 110(1)).

Section ll0E of the EPAAct also provides that the following matters do not require assessment under Part 5: modifications of an activity the environmental impact of which has already been assessed, if the modification will reduce the impact;

• • •

Decision-makers under Part 5

routine activities that the Minister determines have a low environmental impact and are carried out in accordance with a code approved by the Minister; and activities or parts of activities that have been approved or are to be carried out by another determining authority after environmental assessment under Part 5.

Public activities [6.100] Part 5 applies to "activities" carried out directly by government departments, public authorities and local councils. This includes the construction of roads by Roads and Maritime Services or a local council; of the construction of a dam or sewerage works by Sydney Water or a local council.

For example, in Garrett v Freeman (No 5) (2009) 164 LGERA 287; [2009] NSWLEC 1, the construction by the Council of a road on its own land was considered an "activity" as it did not require development consent. Consequently, the Council should have carried out a proper assessment of the impact of the construction of the road on threatened species under Part 5 of the EPA Act.

Determining authorities [6.120] A public body is a determining authority for the purpose of Part 5 if it is carrying out an activity on its own behalf, or having someone else carry an activity out on its behalf, or if it is responsible for granting an approval for an activity (EPA Act, s 110).

The determining authority is ordinarily responsible for deciding whether, in relation to its own activities, the activity should proceed, and in relation to applications for approval, whether to grant the approval. But there is a significant exception in respect of development carried out by public bodies which requires an environmental impact statement (see [6.190] below).

Case studies: Activities carried out by public bodies [6.130] In relation to activities carried out by public bodies, the question of which

body is carrying out the activity, or on whose behalf it is being carried out may be complex. In Citizens Airport Environment Association v Maritime Services Board (1992) 78 LGERA 7, Justice Stein held that dredging work carried out by the Federal Airports Corporation to obtain fill for the third runway at Sydney airport was not carried out "on behalf of" the Maritime Services Board, so as to make the Board a determining authority within the definition in section 110 of the EPA Act. This was so even though the Board owned the land under the bay and there was the possibility that its plans to develop a new port facility would be furthered if the fill was taken from a particular area. Under the terms of its agreement with the Board, there was no obligation on the Corporation to dredge in a particular place and no element of control or direction by the Board.

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The Land and Environment Court may also exercise the functions of a determining authority in certain circumstances. In Goldberg v Waverley Council (2007) 156 LGERA 27; [2007] NSWLEC 259, the Land and Environment Court was considering an appeal against the refusal by the Council of development consent for a dwelling house and associated works, including a driveway. The Court decided that because the driveway was to be located on a road, it did not need development consent. However, an approval under section 138 of the Roads Act 1993 (NSW) was required, and the construction of the driveway was therefore considered to be an activity to which Part 5 of the EPA Act applied. The Council, as the roads authority under the Roads Act 1993, would have therefore had to assess the driveway as the determining authority under Part 5. It was held that the Court itself had the power to carry out the assessment, and make a determination under Part 5 of the EPA Act in relation to whether to grant the approval under the Roads Act 1993. This was because section 39(2) of the Land and Environment Court Act 1979 (NSW) gives the Court on appeal the power to exercise all of the functions and discretions of a council necessary to dispose of the appeal.

[6.170]

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determining authority and must comply with the legal provisions relating to both. This means that the public authority may both prepare and review any environmental assessment documents required under Part 5.

Environmental impact assessment The duty to consider environmental factors [6.160] The fact that an undertaking is an activity for the purposes of Part 5 does not mean that an environmental impact statement (EIS) and/or a species impact statement (SIS) must be prepared.

What it does mean is that the determining authority, before it can proceed with an activity, or grant an approval to the activity, must take into account the environmental impact of that activity. Section 111 of the EPA Act specifies how that is to be done.

Duty to consider environmental impact

Additional determining authorities [6.140] There may be more than one determining authority if a public authority carrying out an activity also requires an approval from another public authority, or if a private developer requires an approval from more than one public authority for its activity.

Where there is more than one determining authority, all determining authorities must comply with Part 5. However, to avoid duplication, the Minister can specify a "nominated determining authority" to be responsible for carrying out certain procedural functions (EPA Act, s 110A). Where the Minister has specified a nominated determining authority, then the other determining authorities are not required to comply with certain provisions of Part 5 regarding the receipt, exhibition of, and provision of environment impact statements to the Secretary (EPA Act, s 110A(2)). However, they must assist the nominated determining authority, including by forwarding to the nominated determining authority any submissions they receive (EPA Act, s 110A(3)). Importantly, the fact that there is a nominated determining authority does not absolve any of the other determining authorities from the key obligation under Part 5 of considering the environmental impact of the activity as required by EPA Act, s 111 (see below).

[6.170] Section 111 provides:

For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, a determining authority in its consideration of an activity shall ... examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. The requirement to take such matters into account to the fullest extent possible differs from the requirement under s 79C to take matters into consideration (see [5.1180]). In Goldberg v Waverley (see above) Biscoe J suggested it was a more exacting requirement, but went on to say: "However, there must be imported into this statutory obligation under s 111(1) a concept of reasonableness." In order to meet its obligations under s 111, the determining authority must have regard to the register of critical habitat kept by the Chief Executive of the Office of Environment and Heritage under the TSC Act (EPA Act, s llOC). It must consider the effect of an activity on critical habitat and, in the case of threatened species, populations and ecological communities and their habitats, whether there is likely to be a significant effect on them, and any other protected fauna or protected native plants within the meaning of the National Parks and Wildlife Act 1974 (EPA Act, s 111(4)) (see Chapter 12).

Who is the proponent?

The determining authority must also consider the effect of the activity on conservation agreements and plans of management under the National Parks .a nd Wildlife Act 1974 and joint management agreements and biobanking agreements under the TSC Act, as well as the effect on any wilderness area under the Wilderness Act 1987 (NSW).

[6.150] The "proponent" is the person or body actually proposing to carry out an activity. This includes the private developer who has to apply to a determining authority for an approval. Where a public authority itself proposes to carry out the activity, it is both the proponent and the

In addition, the authority must have regard to recovery and threat abatement plans relating to the relevant land, for the purposes of assessing the effect on a threatened species, population or ecological community (EPA Act, s 112A).

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simply, this means that all determining authorities must consider factors relating to the environment when making decisions about activities, even if the legislation under which they are making the decision says nothing about the need to take account of environmental impact.

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P ut

This is the importance of Part 5. It acts as an umbrella, attempting to shelter the environment from the impact of decisions made under a whole range of statutes, many of them dating back decades and from an era when development was encouraged at all costs. EPA Regulation, clause 228 spells out in detail some of the factors which must be taken into account when determining authorities are considering what the likely impact of an activity on the environment is. These include:

• • • • • • • • • •

any environmental impact on a community a transformation of a locality any environmental impact on the ecosystems of the locality any impact on the habitat of protected fauna any endangering of any species of plant or animal any pollution of the environment any environmental problems associated with the disposal of waste any increased demands on resources, natural or otherwise, which are, or are likely to become, in short supply any cumulative environmental effect with other existing or likely future activities, and any impact on coastal processes and coastal hazards, including those under projected climate change conditions.

It is difficult to say what is involved in taking a matter into account (see generally, [6.180]) . The courts have sometimes adopted a test of whether "proper, genuine and realistic consideration" of relevant matters has taken place. However, the Court of Appeal has suggested that that test should be applied with caution, so that the Court does not delve into the merits of the matter before it (see for example, Notaras v Waverly Council (2007) 161 LGERA 230; [2007] NSWCA 333 and Anderson v Director-General, Department of Environment and Climate Change (2008) 163 LGERA 400; [2008] NSWCA 337). What is clear is that the relevant matter must be more than merely adverted to or paid mere lip service. Nor would it be sufficient to advert to the matter and then disregard it as irrelevant (see Anderson per Tobias JA at [58]). In addition to this, the fact that there is an obligation to take certain matters into account does not mean that the conclusion reached on those matters must be correct. The fact that a review of the decision might suggest that the decision is wrong does not necessarily lead to a conclusion that the decision is invalid at law (Walsh v Parramatta City Council (2007) 161 LGERA 118; [2007] NSWLEC 255).

Case studies: Considering environmental impact [6.180] In Garret v Freeman (see [6.100]) the Court found that there had been only a token effort to comply with Part 5. Justice Lloyd held that the person carrying out the assessment had completed a tick-a-box checklist which did not even mention the threatened species or whether the activity was likely to have a significant effect on

the habitat of the species, as required by section 111 of the EPA Act. That was held not to be sufficient to comply with Part 5. At the very least, compliance with section 111 would be expected to involve, for example, carrying out surveys on the distribution of fauna and flora to assess their conservation status where existing information was inadequate Uarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at pp 99-100).

In Bailey v Forestry Commission of NSW (1989) 67 LGRA 200, the Forestry Commission argued that it had satisfied its obligations under EPA Act, section 111 by, among other things, completing a management plan and attaching Standard Erosion Mitigation Conditions to timber licences. But Justice Hemmings concluded otherwise. The plan was primarily concerned with economic factors and the environmental reviews were superficial. The mitigation conditions were not adequate under all circumstances, and the Commission ought to have taken this into account. Nor had the Commission explained why it had departed from its normal practices by leaving such decisions as the areas to be logged and the location of snig tracks to the discretion of the loggers (at pp 215-216). However, a cost-benefit analysis is not necessarily required (Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 at p 160). In this case, Justice Stein took into account the expertise of the decisionmaking body in concluding that it had complied with its duty. There may also be an argument that a decision-maker lacking expertise cannot reasonably be expected to carry out the same level of assessment as one that has the necessary resources and skills.

The need for an environmental impact statement [6.190] If development is being dealt with under Part 4 of the EPA Act, then an EIS is only

required if the development is specifically identified as "designated development" (EPA Act, s 78A(8)(a)) or State significant development (EPA Act, s 78A(8A)). An EIS is also required for State significant infrastructure under Part 5.1 (EPA Act, s 115Y(2)). Under Part 5, an EIS is only required if the determining authority forms the view that the activity which it is considering "is likely to significantly affect the environment (including critical habitat) or threatened species, populations or ecological communities, or their habitats" (EPA Act, s 112(1), 112(1B)). In contrast to designated development and State significant development under Part 4 and State significant infrastructure under Part 5 .1, there is no attempt to list specific types of undertakings, although this could be done in the EPA Regulation, as the EPA Act, section 112 provides that activities can be "prescribed". The test of whether something is likely to "significantly affect" the environment is potentially very broad - much broader than the categories of designated development, State significant development and State significant infrastructure.

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Who determines significant effect? [6.200) The primary responsibility for deciding if an activity is likely to "significantly affect" the environment lies with the determining authority. Where there is more than one determining authority, each has to consider the matter independently. An EIS has to be prepared if any one of them decides that the activity is likely to significantly affect the environment or threatened species, populations or ecological communities - even if the others do not agree. The fact that the nominated determining authority (see above [6.140]) does not agree is irrelevant, as it has no power of veto (EPA Act, s 110A(2)).

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Likelihood of significant effect [6.210] Section 111 of the EPA Act and clause 228 of the EPA Regulation, prescribe what must be considered when assessing an activity under Part 5 (see above, [6.200]), and those matters will be relevant to the determination of whether the activity will have or is likely to have a significant effect on the environment.

Each case must be considered on its own facts: the assessment of significance made in another similar case cannot be relied on (Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38).

Unlike designated development, State significant development or State significant infrastructure, where an EIS is required if the proposal falls within one of a number of specifically identified categories, it is open to a determining authority to conclude that an activity will not, or is not likely to have a significant effect on the environment or threatened species, and that an EIS is not required.

The determining authority must assess the significance of the environmental effect of the activity as proposed, not as modified by any conditions designed to mitigate its impact which could be attached to the approval sought. However, ameliorative measures proposed as part of the activity can be relevant to the assessment of the expected impact of the activity (Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186).

There are only limited ways in which such a conclusion can be challenged. There is no right of merit appeal against a determining authority's conclusion. However, under section 123(1) of the EPA Act, any person can commence proceedings alleging a breach of the EPA Act. It is a breach of the EPA Act for a determining authority to allow an activity which is likely to significantly affect the environment to proceed without considering an EIS (EPA Act, s 112(l)(a). The legal position was that in such proceedings the Court would only be considering whether the conclusion of the determining authority not to require an EIS was reasonably open to the determining authority, based on the material or evidence which was, or should have been available to the decision-maker at the time the decision was made. If the decision was reasonably open to the determining authority, then there will be found to have been no breach of the EPA Act (see Leichhardt Municipal Council v Maritime Services Board (1985) 57 LGRA 169; Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155; Bailey v Forestry Commission ofNSW (1989) 67 LGRA200; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186).

The Court has held that an effect on the environment will be "likely" if there is a "real chance" or "possibility" of the effect occurring. It is not necessary for the effect to be, "more probable than not" Uarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at p 94; Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155 at p 163; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at p 193; compare Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 211).

It has, however, been stated in two decisions by Biscoe J of the Land and Environment Court that the question of whether an EIS or SIS is required under section 112 of the EPA Act is a jurisdictional fact. This means that the Court could determine that fact for itself, and would not be limited to considering the reasonableness of the determining authorities' decision (Parks and Playgrounds Movement Inc v Newcastle City Council [2010] NSWLEC 231; Oshlack v Rous Water [2011] NSWLEC 73 ). Biscoe J relies on the decision in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 in which the Court of Appeal held that the question of whether a proposal was likely to significantly affect threatened species, and therefore whether an

SIS was required under what is now s 78A(8)(b) of the EPA Act, was a jurisdictional fact. In Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38, Pepper J of the Land and Environment Court also held thats 112(1) of the EPA Act gives rise to a jurisdictional fact that the Court is required to determine for itself on all the available evidence whether or not the activity is likely to significantly affect the environment.

The effect will be significant if it is "important" or "notable", "weighty" or "more than ordinary" (see Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd [2010] NSWLEC 48, and cases cited therein). It is also important to consider what constitutes the "environment".

The environment which needs to be considered is not only the area in which the activity is to be carried out, but can include the surrounding area. So in Kivi v Forestry Commission of NSW (1982) 4 7 LGRA 37, where the activity involved logging of 170 hectares of Goonimbar State Forest (of which 66 hectares were rainforest), Justice Cripps decided that the "environment" to be considered was not restricted to the area of the logging, but included at least the whole of Goonimbar State Forest. He also considered not only this particular logging proposal but the effect of logging as a whole in the State forest, in order to understand " the cumulative and continuing effect of the activity on the environment". In Kivi, the Court defined the relevant environment as extending beyond the specific area to be logged so as to include the question of cumulative impact. But the court has had to make it clear that impacts cannot be rendered insignificant by extending the scope of the "relevant" environment to include the whole of the State or region. In the end, the extent of the relevant environment will depend on the facts of each case. The significance of the effect on the environment may also be reduced if the environment is badly degraded (Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 212) . . The environment includes not just the natural environment but "all aspects of the surroundings of humans whether affecting any human as an individual or in his or her social groupings" (EPA Act, s 4(1)) . This clearly covers the built, cultural and social environment as well (see Drummoyne Municipal Council v Roads and Traffic Authority of NSW (1989) 67 LGRA 155).

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This point was brought out in Severn Shire Council v Water Resources Commission (1982) 47 LGRA 257, when Justice Cripps summed up the evidence relating to the likely impact of the proposed dam on the environment in the following manner: When constructed, it will have a direct effect on the long-term needs of Glen Innes. The construction of the dam will result in the closure of Shannan Vale Road and will make the Glen Legh Road more susceptible to flooding. The Red Range bridge will need to be rebuilt to give access to Glen Innes. The closure of the Shannan Vale Road will mean a number of people will be required to travel an additional seven kilometres to get to Glen Innes. The project will cost approximately $4,500,000 and will have a significant effect on the rating structure of the municipality. A large area of arable land will be flooded after the dam is completed. Furthermore, the fact that the dam is to be built will mean (or at least make it more likely) that a dam will not be built on the Mann River. More recently, the Land and Environment Court in Goldberg v Waverley Council [2008] NSWLEC 49 refused to approve the construction of a driveway on an unmade section of road under Part 5 for the sole reason that the driveway would be unsafe for people using it either intentionally or by accident. The Court noted the broad definition of environment in the EPA Act, and identified public safety as the relevant aspect of the environment.

The need for a species impact statement [6.220] SISs are used to assess the particular significance of the effect of actions on threatened species, populations and ecological communities, or their habitats.

A SIS must be submitted with a development application under Part 4 of the EPA Act if the proposal relates to land which is critical habitat, or it is likely to significantly affect threatened species, populations or ecological communities, or their habitats (EPA Act, s 78A(8)(b)). Whether a SIS is required under section 78A(8)(b) to accompany a development application has been held to be a jurisdictional fact, meaning that the court can determine the relevant fact (being whether a SIS is required) for itself (Timbarra Protection Coalition Inc v Ross Mining NL and others (1999) 46 NSWLR 55; Corowa v Geographe Point Pty Limited & Anor [2007] NSWLEC 121). Under Part 5 of the EPA Act, a determining authority must not carry out an activity or grant an approval for an activity that is likely to significantly affect the environment (including critical habitat) or threatened species, populations and ecological communities, or their habitats, unless it has been furnished with a separate SIS or a SIS incorporated into an EIS (EPA Act, ss 112(1), 112(1B)). In contrast to the position under section 78A(8)(b), the question of whether a SIS is required under Part 5 is a matter for the determining authority, and can only be challenged on the basis of the reasonableness of the determining authority's decision. However, recent case law has suggested otherwise (see [6.280]). A detailed discussion of the criteria used to determine whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats; exceptions to the requirement of an SIS where land has been biodiversity certified or a biobanking statement has been issued; and the contents of SISs can be found in Chapter 12, [12.1200].

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The timing of environmental and species impact assessment Initial assessment [6.230] The obligation to consider the environmental impact of an activity arises at the point of consideration of the activity (see Goldberg v Waverley [2007] NSWLEC 259). This would be when a determining authority is deciding whether to proceed with an activity (if it is also the proponent), or when the determining authority is considering whether to grant an approval for an activity.

For proponents who are also determining authorities, one would expect this consideration to begin as soon as the proposal is first discussed. For private proponents, there is no legal duty for them to consider environmental matters from the outset. However, in practice, the proponent must do so in order to determine what level of assessment, and what type of documentation is required to accompany their application. The initial assessment for both public and private proponents must be whether or not the activity is likely to have a significant effect on the environment (including critical habitat), or threatened species, populations or ecological communities, or their habitats, so that they can determine whether or not an EIS and/or a SIS is required.

When should the EIS/515 decision be mode? [6.240] Under Part 4, any EIS or SIS which is required must accompany the development application.

The formal position under Part 5 is that the EIS or SIS is only required immediately before the determining authority makes its decision. Depending on the type and scale of the proposal, however, the initial assessment may occur at an early stage, and may even occur at the time of the proponent considering whether the activity is viable. This will be the case where there are well ··· documented threatened species on the site, or the site comprises critical habitat. It will also be the case with large scale proposals with obvious environmental impacts. For other proposals, the significance of the impact of the proposal on the environment may only emerge at a later stage, and, in the case of private proponents, may only be considered after the determining authority specifically requests the proponent to consider the impacts of the proposal on certain aspects of the environment.

Preparing the EIS [6.250] An EIS or SIS is prepared by the person applying for development consent under Part 4 (EPA Act, ss 78A(8), 78A(8A)), by the person applying for approval under Part 5.1 (EPA Act, s 115Z(l)), or by the proponent under Part 5 (EPA Act, s 112(1)(a)(i); TSC Act, s 111(1)).

Whilst the EIS or SIS is prepared by or on behalf of the proponent, and not by an independent body, it must be prepared in accordance with requirements issued by the Secretary (see below).

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[6.260] A SIS has to be prepared in accordance with the provisions of the TSC Act (see [6.250]).

found that it is doubtful that an EIS could cover every aspect of a problem. The issue is whether the statement substantially complies with the legislative requirements, not whether it complies in every conceivable way.

The Regulation sets out in detail what an EIS required under Part 5 should cover (EPA Regulation, Schedule 2). An EIS must include the matters listed in Schedule 2 of the Regulation. Schedule 2 also sets out the process through which the Secretary issues Environmental Assessment Requirements - these must be contained in the EIS.

This means that it is difficult to challenge the validity of an EIS where there has been an apparently genuine attempt to comply with the requirements. Even if topics are omitted, this does not necessarily mean a lack of substantial compliance (see for example Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21).

What must be covered?

Content of an EIS [6.270] Schedule 2 of the Regulation states that an EIS must cover the following:

•

a summary of the environmental impact statement

• a statement of the objectives of the development, activity or infrastructure

• •

•

analysis of any feasible alternatives to the carrying out of the development, activity or infrastructure, having regard to its objectives, including the consequences of not carrying out the development, activity or infrastructure an analysis of the development, activity or infrastructure including (a)

a full description of the development, activity or infrastructure, and

(b)

a general description of the environment likely to be affected by the development, activity or infrastructure together with a detailed description of those aspects of the environment that are likely to be significantly affected, and

(c)

the likely impact on the environment of the development, activity or infrastructure, and

(d)

a full description of the measures proposed to mitigate any adverse effects of the development, activity or infrastructure on the environment, and

(e)

a list of any approvals that must be obtained under any other Act or law before the development or activity may be lawfully carried out

the reasons justifying the carrying out of the development or activity in the manner proposed, having regard to biophysical, economic and social considerations and the principles of ecologically sustainable development

The Secretary's requirements must be complied with (Prineas v Forestry Commission of NSW (1983) 49 LGRA 402), and a failure to lodge an EIS which complies with these requirements can result in any approval granted in reliance on that EIS being held to be invalid. However, not all deviations from the EIS requirements will automatically invalidate it. Courts have repeatedly held that, to be valid, an EIS need only comply substantially, rather than strictly, with the legislative content requirements. The relevant standard was outlined by Justice Cripps in Prineas v Forestry Commission of NSW (1983) 49 LGRA 402. His Honour held that "a superficial, subjective or non-informative environmental impact statement" would not comply with the Act. A statement will comply, however, if it is comprehensive and objective, and informs the decision-maker, the public and the Planning Department about the consequences of the activity. It is not invalid simply because it "does not cover every topic and explore every avenue advocated by experts". Justice Cripps

Case studies: Challenging an environmental impact statement [6.280] In Guthega Development Pty Ltd v Minister Administering the National

Parks and Wildlife Act (1986) 7 NSWLR 353, one ground of challenge to an EIS prepared for the development of a ski resort at Mount Blue Cow was that there was no adequate justification of the proposed activity in terms of economic considerations as required by the Regulation. The Court of Appeal held that this meant that the EIS should include material from which it could be reasonably inferred that the project had reasonable prospects of a sound economic future. But this did not mean that there had to be a feasibility study, including consideration of the capital cost of the project, estimated income and expenditure, and the return of capital or funds invested. In Warren v Electricity Commission of NSW (unreported, Land and Environment Court, 31 October 1990) the Court upheld the validity of an EIS which dealt with the health effects of high-voltage transmission lines, about which there was considerable scientific disagreement. In concluding that, for practical purposes, there was no cause for concern, the EIS acknowledged that there were competing views. The Court held that the EIS did not have to highlight the opinions of those who viewed the risks as being greater.

Public exhibition (6.290] Once an EIS is complete, a copy must be supplied to the Secretary. Arrangements must

also be made to put the EIS on exhibition and to invite public comment. This is done by the consent authority under Part 4 (EPA Act, s 79), the Secretary in relation to State significant development (EPA Act, s 89F), the determining authority under Part 5 (EPAAct, s 113(1)) or the Secretary under Part 5.1 (EPA Act, s 115Z(3)). Where there is more than one determining authority and a nominated determining authority has been identified by the Minister, then this body is responsible for exhibiting the EIS (EPA Act, s 110A(2)). Notice must be given to members of the public, inviting inspection and comment. Under Part 5, notice must be published in both a Statewide and a local paper on two occasions over a specified period (EPA Regulation, cl 234). The exhibition must last for at least 30 days, during which anybody can inspect the EIS and make written comments on the proposed activity or development (EPA Act, s 113(1)).

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There is no provision for placing SISs on public exhibition under EPA Act, Part 4. Under Part 5, SISs are subject to the same public exhibition requirements as EISs (EPA Act, s 113(8)). Under Part 5, a determining authority can restrict publication of any part of the EIS if it thinks this would be contrary to the public interest (EPA Act, s 113(2)). There is no equivalent to this provision under Part 4. Copies of the EIS can be put on sale (at no more than $25 each) by the consent authority or the determining authority (EPA Regulation, Schedule 2).

Review by the Planning Assessment Commission [6.300] Under Part 5, copies of any public comments which are made to a determining authority must be sent to the Secretary. The Planning Department is then allowed at least 21 days to decide what action to take before the determining authority can make its decision (EPA Act, s 113(3)). The Minister has the option of requesting a review by the Planning Assessment Commission of all or any of the environmental aspects of an activity which is likely to significantly affect the environment, or of a part of any such activity (EPA Act, ss 23D and 113(5)). If such a review is not requested, the Secretary can arrange to have the EIS, and any public comments examined within the Department (EPA Act, s 113(5)).

The findings and recommendations of any review must be forwarded to determining authorities (EPA Act, s 114(a)) and, ordinarily, also made public (EPA Act, s 113(6), EPA Regulation, cl 268V). Where a review is held, the Minister may also give advice to the determining authority on whether there are, in the Minister's opinion, environmental grounds preventing the activity going ahead or on whether any conditions ought to be attached to any approval (EPAAct, s 114(a)). But the Minister' s views, and the findings and recommendations of the Planning Assessment Commission, are not binding; they simply have to be taken into account by the determining authority.

The decision-maker [6.310] It is the determining authority that decides whether or not an approval should be given to an activity under Part 5.

However, where the proponent of development (other than a local or county council) is also a determining authority, and in the opinion of the proponent an EIS would be required if the proposal were assessed under Part 5, then the development can be declared by a State environmental planning policy (SEPP) to be State significant infrastructure and dealt with not under Part 5 but under Part 5.1 (EPA Act, s 115U(3)). Here State Environmental Planning Policy (State and Regional Development) 2011 is the relevant SEPP. Under Part 5.1, an approval is required from the Minister. EISs and SISs are not designed to replace decision-making processes, and the determining authority need not accept the conclusions contained in those documents (Prineas v Forestry Commission of NSW (1983) 49 LGRA 402 at 417; Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at p 95; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at p 210).

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[6.320]

Where there is more than one determining authority, each can effectively exercise a veto over the activity by refusing to give the go-ahead.

• • •

In making its decision, the determining authority may: approve the activity not approve of the activity impose conditions to eliminate or reduce the impacts.

Where the determining authority is the proponent of the activity, and assuming Part 5.1 does not apply, it may determine to:

• carry out the activity • refrain from carrying out the activity • modify the activity to eliminate or reduce the detrimental effect.

Case study: Where the determining authority is the proponent [6.320] If a determining authority is also the proponent of an activity, its power to modify an activity after environmental impact assessment is extremely broad.

In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133, a challenge was brought against the decision of the Roads and Traffic Authority to approve the building of the MS East motorway in Sydney. An initial proposed route was the subject of an EIS and extensive public submissions were received. The Authority considered that there would be significant environmental impacts caused by the proposed route, and modified the proposal so that the road took a new route. That route produced a new range of environmental impacts on new people, and on a number of other areas. The applicant argued, in particular, that a determining authority could not "eliminate or reduce the impact" of an activity by modifying it to reduce one set of impacts while creating a range of new impacts. The proposed modifications were so significant that each, if proposed as an individual project, would have required an EIS. The Authority had not prepared a new EIS for the modifications or carried out a full public exhibition and participation process under the EPA Act. The Court of Appeal held by majority that the Roads and Traffic Authority and the Minister had not exceeded their authority under the Act. The concept of a "modification" to an activity must be understood in the light of the project as a whole. The Court held that the changes to the route and associated works, although deviating markedly in alignment and affecting different localities and different people, did not "radically transform" the activity. The authority therefore had the power to modify the proposal in the way proposed and carry it out without the need for a new EIS and a further public exhibition process. The Court also rejected a proposition that a "modification" must merely reduce or eliminate impacts without creating new adverse impacts. Justice Sheller added that a modification "was a change which might add to or subtract from the proposed activity". The substance of the activity continues, and a modification is "less than its wholesale rejection and replacement".

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[6.330) The above case study is not relevant where Part 5.1 of the EPA Act applies. There are

special procedures in Part 5.1 for modification of approvals granted for the carrying out of State significant infrastructure. A proponent who is dissatisfied with the decision of a determining authority has no right of appeal under the EPA Act. However, there may be appeal rights under the legislation under which an approval, consent or licence is required, (for example, the Protection of the Environment Operations Act 1997, see (6.300]). The Land and Environment Court may also have the functions of the determining authority, if it is otherwise hearing an appeal, pursuant to section 39(2) of the Land and Environment Court Act 1979 (see Goldberg v Waverley [2007] NSWLEC 259). However, any person can bring proceedings to remedy or restrain a breach of the EPA Act (see [6.300]). In such proceedings, the Court is only concerned with the legality of the decisionmaking process (judicial review), and not with the merits of the activity or the question of whether the activity should be allowed to proceed based on its environmental impacts (see [6.280]).

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Monitoring [6.350) There is nothing in the EPA Act which requires monitoring of the activity to assess its actual impact compared with the predictions in the EIS or SIS, and whether appropriate adjustments need to be made to the activity in light of this. However, in Guthega Development Pty Ltd v The Minister Administering the National Parks and Wildlife Act (1986) 7 NSWLR 353, suggestions were made that EPA Act, section 111 may entail a continuous monitoring of the activity. This has since been repeated by Justice Hemmings (]arasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 95):

There is a strong argument that Part 5 contemplates in appropriate circumstances an environmental impact statement which adequately assesses the general concept of an activity without necessarily assessing in every case the detail of the site-specific impact of intended structures, activities and land use. A large-scale multi-stage project may additionally involve an inquiry as to the nature and extent of necessary continuous monitoring of the development, and also when and if site-specific impact should be evaluated in detail, and at what stage such detailed evaluation should occur. Often the requirements for the EIS or SIS issued by the Secretary will include an assessment of how the impacts of the proposed activity will be monitored.

Concurrence [6.340) If an SIS is required, and the consent authority or determining authority is not a

Minister, the consent authority or determining authority must obtain the concurrence of the Chief Executive of the Office of Environment and Heritage to the grant of the development consent or approval (EPA Act, ss 79B(3), 112C(l)). If the Chief Executive does not grant concurrence, consent or approval cannot be granted. If concurrence is granted, consent or approval (if also granted) must be consistent with the concurrence. In determining whether or not to grant concurrence, the Chief Executive must take into account certain mandatory matters, including (EPA Act, ss 79B(5), 112C(3); EPA Regulation, cl 244):

• the SIS • any assessment report • any public submissions • any relevant recovery plan or threat abatement plan • whether the proposal is likely to reduce the long-term viability of the species, population or ecological community in the region • whether the proposal is likely to accelerate the extinction of the species, population or ecological community • the principles of ecologically sustainable development • the likely social and economic consequences of granting or not granting concurrence.

There is an exception to the above where the Land and Environment Court is standing in the place of the consent authority when determining an appeal under sections 97 or 98 of the EPA Act. In those circumstances, the Court can grant consent in the absence of the concurrence of the Director-General of the Environment Department (Land and Environment Court Act 1979, s 39(6)).

Enforcement [6.360) As discussed above, a failure to comply with the environmental assessment provisions of Part 5 can be challenged by anyone in civil enforcement proceedings (EPA Act, s 123). However, the fact that a requirement of the Act has not been strictly complied with when an action is carried out does not necessarily mean that the action is invalid or unlawful, or that the courts will grant a remedy if that breach is proved.

The courts have recognised that not every provision of an Act requires strict compliance. So the fact that the EPAAct sets out a process before a determining authority decides to proceed with or approve an activity under Part 5 does not mean that any error in the process will invalidate the ultimate decision. The courts determine whether a particular breach is fatal to the validity of the decision by construing the Act and determining whether Parliament intended that strict compliance is necessary (Project Blue Sky Inc v Australian Broadcasting Association [1998] HCA 28). The courts also have a broad discretion as to what remedies it grants if a breach is found. In some cases, it may not make any orders at all, particularly if it regards the breach as trivial or if it considers the public interest would not be well served by making orders (see [6.280]). The courts may also postpone orders, or limit the operation of orders to soften their impact, where this is considered appropriate (see Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 102-107; Bailey v Forestry Commission of NSW (1989) 67 LGRA 200 at 216-217; Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 201-203).

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7 Commonwealth environmental assessment and approval Dr Emma Carmody

Controlled actions ......................................................................................................................................................... [7.20] Matters of national environmental significance .......................................................................................... (7 .40] World Heritage properties ...................................................................................................................................... [7.50] Matters of Commonwealth responsibility ................................................................................................... (7.300] Exemptions ................................................................................................................................................................... [7.330] Determining likely significant impact ............................................................................................................. (7.460] The assessment process ...................................................................................................................................... (7.560] Strategic assessment ............................................................................................................................................. (7.650] Approvals ...................................................................................................................................................................... (7.68 0] Public participation ................................................................................................................................................... (7.750] Government action ................................................................................................................................................... (7.890]

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[7.10) This chapter deals with the assessment and approval processes for proposed actions that affect matters of national environmental significance. The relevant legislation is Commonwealth legislation: the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) and the Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) (EPBC Regs). At the time of writing, the Minister responsible for administering this legislation was the Minister for the Environment (the Minister). The relevant government department is currently the Department of the Environment.

[7.40]

• • •

chapte r 7 Commonwealth environmental assessment and approval

that the action will have no significant impact and approval is not needed (s 75) to give approval to the action, with or without conditions (s 133 ). to refuse to approve the action (s 133).

Even residential subdivisions may involve the Commonwealth if, for example, they are likely to have a significant effect on a listed ecological community. The vast majority of controlled actions are approved by the Minister. At the time of writing, only 18 out of the 806 projects assessed under the EPBC Act have been refused.

The EPBC Act runs to some 528 sections and a further 59 pages of schedules. It is the Commonwealth's main tool for environmental protection. In summary, the EPBC Act has four important functions in protecting the environment. It provides for:

Case study: Clearing cassowarry habitat in North Queensland

• assessment and approval processes for proposed actions likely to have a significant impact on matters of national environmental significance • management and protection of Commonwealth protected areas (see Chapter 4) • the conservation of biodiversity and heritage (see Chapters 12 and 17) • enforcement action to ensure compliance with obligations imposed under law.

[7.30) A developer in North Queensland referred a proposed action, the clearing of land for a subdivision, to the Minister for approval. The land was possible habitat for the listed cassowarry. Before the Minister had made a determination on the referral, the land was cleared. The developer was prosecuted in the Local Court and fined for clearing before getting a determination from the Minister. Ultimately the Minister determined that the action was not a "controlled action" and no approval was required.

This chapter deals with assessment and approval by the Commonwealth of matters which the Commonwealth considers are its responsibility, and also the enforcement by the Commonwealth of compliance with assessment and approval obligations under the EPBC Act.

Matters of national environmental significance Controlled actions [7.20] Part 3 of the EPBC Act requires Commonwealth assessment and approval for actions that are likely to have a significant impact on one of the following:

• actions that take place on, or affect, Commonwealth land or waters • actions that take place on, or affect, Commonwealth heritage places overseas • actions carried out by Commonwealth agencies • actions affecting matters the Commonwealth considers are of national environmental significance, regardless of who is involved and where the action takes place.

[7.40] Matters of NES were chosen by the Commonwealth Government having regard to what it saw as its role and responsibilities in protecting the environment In doing so the Government was mindful of the Intergovernmental Agreement on the Environment (IGAE) which it signed with the States in 1992 (see [1.540]). The IGAE noted the following as Commonwealth responsibilities:

• •

matters of foreign policy relating to the environment and, in particular, negotiating and entering into international agreements relating to the environment and ensuring that international obligations relating to the environment are met by Australia ensuring that the policies or practices of a State do not result in significant adverse external effects in relation to the environment of another State or the lands or territories of the Commonwealth or maritime areas within Australia's jurisdiction

Something a person proposes to do that requires approval under a provision in Part 3 of the EPBC Act is a controlled action. An "action" is defined to include a project, a development, an undertaking, an activity or series of activities and an alteration of any of these things (s 523 ). Any section in Part 3 of the EPBC Act that requires approval to be obtained before an action is carried out is a controlling provision (s 67).

• facilitating the cooperative development of national environmental standards and guidelines • the management (including operational policy) of living and non-living resources on land

In summary, the controlling provisions deal with actions affecting matters listed as being of national environmental significance (NES), and with matters of Commonwealth responsibility.

The matters of NES listed in the EPBC Act largely derive from the Commonwealth's participation in selected international agreements, primarily those relating to nature conservation. These matters of national environmental significance are:

Under the EPBC Act, it is an offence to carry out an action without approval from the Minister if it has, will have, or is likely to have a significant impact on a matter of NES listed in the Act. (See EPBC Act, Ch 2, Pt 3 Div 1 for the various offence sections). A person carrying out an action which might have a significant impact on a matter of NES is directly responsible for referring it to the Minister (s 68). The Minister can decide:

which the Commonwealth owns or which it occupies for its own use.

• world heritage (see [7.50]) • national heritage (see [7.110]) • Ramsar wetlands (see [7.140]) • threatened species and communities (see [7.190])

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• listed migratory species (see [7.240]) • protection from nuclear actions (see [7.250] ) • Commonwealth marine areas (see [7.270]) • the Great Barrier Reef Marine Park (see [7.280])

•

water resources impacted by coal seam gas (CSG) development or large coal mmmg development (see [7.700] ).

In some cases, matters listed above do not require approval by the Minister. These exemptions are discussed in [7.350].

World Heritage properties [7.50] World Heritage properties are:

• those listed under the World Heritage Convention • any property declared by the Minister to be a World Heritage property because it has been submitted by the Commonwealth to the World Heritage Committee as suitable for listing • any property declared by the Minister to be a World Heritage property because the Minister

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Management [7.80] The development of management plans for world heritage properties is discussed in Chapter 4 at [4.630] and in Chapter 17 at [17.750]. World Heritage management principles are required by section 323 of the EPBC Act, and are found in Schedule 5 of the EPBC Regulations (reg 10.01) They state that the primary purposes of managing the natural heritage and cultural heritage of a declared world heritage property must be to:

• identify the world heritage values of the property • protect these values • conserve them • present them (that is, allow them to be seen or experienced) • transmit them to future generations • rehabilitate them, if appropriate.

These principles are in accordance with Australia's obligations under the World Heritage Convention . Reg 10.01 further provides for public consultation and ongoing community input in relation to the management of World Heritage properties.

is satisfied that it is likely to have world heritage values and these are under threat (ss 12-14).

What is protected? [7.60] A person cannot, without approval, take an action which has, will have or is likely to have

a significant impact on the world heritage values of a world heritage property. It is the values for which it was listed that are protected under the legislation, not the property itself (ss 12, 15A). World heritage values of "cultural heritage" (monuments, groups of buildings, and sites) and "natural heritage" (natural features, geological and physiographic formations, and natural sites) are defined by the Convention as being of "outstanding universal value" from the point of view of history, art, science, aesthetics, ethnology, anthropology, conservation or natural beauty (World Heritage Convention, Articles 1 and 2).

Case study: Dredging Hinchinbrook Channel [7.70] The Port Hinchinbrook development at Cardwell in Queensland involved dredging part of Hinchinbrook Channel, damaging part of the listed Great Barrier Reef world heritage property.

The Minister was satisfied that the values of the property would not be significantly affected (Friends of Hinchinbrook Society Inc v Minister for Environment (No 2) (1997) 69 FCR 28). There is room for considerable difference of opinion about whether a development has a significant impact on the world heritage values of a property.

Environmental impact assessment [7.90] The management principles provide that before an action likely to have a significant impact on world heritage values is taken, whether inside or outside of a world heritage property, there should be an assessment of its likely impact on the property's World Heritage values (reg 10.01, Schedule 5, cl 3). This assessment should be carried out under a statutory environmental impact assessment and approval process accredited by either the Commonwealth or a State. An action should not be approved if it would be "inconsistent with the protection, conservation, presentation or transmission to future generations of the World Heritage values of the property" (Sch 5, cl 3.04). The assessment process should (cl 3.03):

• identify the world heritage values of the property that are likely to be affected by the action • examine how these world heritage values might be affected • provide adequate opportunity for public consultation. World Heritage properties in NSW [7.100] World heritage properties listed in NSW are:

• the Gondwana Rainforests of Australia {previously the central eastern rainforest reserves), inscribed in 1986 and extended in 1994) • the Willandra Lakes region, inscribed in 1981 • the Greater Blue Mountains area, inscribed in 2000 • the Lord Howe Island group, inscribed in 2007 • the Sydney Opera House, inscribed in 2007 • the Australian Convict Sites, inscribed on 31 July 2010, four of which are in NSW.

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A full description of these properties, including their values, can be found at http:// http:// www.environment.gov.au/heritage/places/world-heritage-list or www.environment.nsw.gov.au/parktypes/WorldHeritageListedAreas.htm.

National heritage places

[7.160]

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Ramsar wetlands are located on different types of land including national parks, nature reserves, State forests, Crown land and private properties. The Gwydir wetlands, for example, are on private land used for farming. There are 16 Ramsar wetlands in the Murray-Darling Basin (Basin). These wetlands are also provided for in the Water Act 2007 (Cth) and Basin Plan 2012 (Cth), which seek to increase the amount of water available for the environment across the Basin.

[7.110] National heritage places (s 15B) are those listed on the National Heritage List by the

Minister (ss 324C, 324JJ). See generally, [17. 760] . To be listed, a place must have "outstanding heritage value to the nation" because of (reg 10.0lA):

• its place in Australia's natural or cultural history • the presence of uncommon, rare or endangered aspects of Australia's natural or cultural history • its potential to yield information that will contribute to an understanding of Australia's natural or cultural history • its importance in demonstrating the principal characteristics of a class of Australia's natural or cultural places or environments • its possession of aesthetic characteristics valued by a community or cultural group • its importance in demonstrating a high degree of creative or technical achievement at a particular period • its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons • its special association with the life or works of a person, or group, of importance in Australia's natural or cultural history • its importance as part of indigenous tradition. Listed national heritage places

[7.120] Places in NSW include both natural and cultural heritage and range from the Australian

Listed Ramsar wetlands in NSW [7.150] There are 12 Ramsar wetlands listed in NSW. They are:

1.

Towra Point Nature Reserve

2.

Hunter Estuary Wetlands

3.

Macquarie Marshes

4.

Little Llangothlin Nature Reserve

5.

Blue Lake

6.

Lake Pinaroo (Fort Grey Basin)

7.

Gwydir Wetlands

8.

Myall Lakes

9.

Narran Lake Nature Reserve

10.

Fivebough and Tuckerbil Swamps

11.

NSW Central Murray State Forests

12.

Paroo River Wetlands

A full listing and map of wetland locations can be found at http://www.environment.gov.au/ water/wetlands/publications/factsheet-australias-ramsar-sites. Information about sites located in NSW can be found at: http://www.environment.nsw.gov.au/wetlands/RamsarWetlands.htm.

Alps National Parks and Reserves to Brewarrina Aboriginal fish traps. The full list of National Heritage Places can be found at http://www.environment.gov.au/ heritage/places/national-heritage-list.

What is protected? [7.130] A person cannot, without approval, take an action which has, will have or is likely to have a significant impact on the national heritage values of a national heritage property. Again, it is the values for which it was listed that are protected under the legislation, not the property itself (ss 15B, 15C).

Heritage conservation is covered in detail in Chapter 17.

Ramsar wetlands [7.140] Ramsar wetlands are wetlands of international importance listed under the international multilateral Convention on Wetlands, known as the Ramsar Convention.

What is protected? [7.160] A person cannot, without approval, take an action which has, will have or is likely to have a significant impact on the ecological character of a declared Ramsar wetland (ss 16, 17B). This includes internationally listed wetlands as well as those with the potential to be listed that are under threat (ss 17, 17A) (see [4.630]). It is the ecological character of the wetland that is protected under the EPBC Act, not the wetland itself. The term "ecological character" is referred to in the Ramsar Convention and defined in a meeting of the body governing the Convention ("Conference of the Parties") as "the sum of biological, physical, and chemical components of the wetland ecosystem and their interactions which maintain the wetland and its products, functions and attributes."

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[7.170]

Ecological thinning in the Central Murray State Forests - controlled action [7.170] The Central Murray State Forests are located in south-western NSW and comprise the

Millewa Forests, Werei Forests and Koondrook Forests. Logging pre-dated the listing of these forests as a Ramsar wetland in 2003 and was permitted to continue, providing the ecological character of the wetland was protected. Declining health of river red gums in these forests prompted the NSW Office of Environment and Heritage (OEH) and the Victorian Department of Environment and Primary Industries (DEPI) to collaborate on the development of an "ecological thinning" trial. Ecological thinning involves reducing tree density for the purposes of improving the overall health of a forest. The method is controversial as the science behind the process is largely untested. Critics argue that it will have a negative impact on local waterways, cause soil contamination and suffocation (due to excess mulch), reduce food for wildlife and may introduce new pests and diseases into the area. Bird advocates contest that it will result in less nesting areas for local birdlife. The trial, which involves 198 hectares, has been declared a controlled action as it is likely to have a significant impact on three matters of NES: the Barmah-Millewa Ramsar site, listed threatened species and communities and listed migratory species. The Public Information Report produced by OEH and DEPI for assessment of the proposed trial under the EPBC Act is available at http://www.environment.nsw.gov.au/resources/ protectedareas/14008 3ecothinredgum.pd£. In October 2014, it was reported that DEPI had withdrawn from the project and would be working with NSW to develop an appropriate management strategy for river red gums . However, NSW has not officially abandoned the trial. Furthermore, it is still listed as a "controlled action" on the Commonwealth Department of Environment website (that is, it has not been listed as withdrawn by the proponents), though it is yet to be determined. See http:// www.environment.gov.au/cgi-bin/epbc/epbc_ap.pl?name=current_referral_detail&proposal_id= 6713. The ecological character description for the Central Murray State Forests can be found at: http://www.environment.gov.au/system/files/resources/97a 7ddbc-d7 4a-43a 7-a4c79c4a 1c48b290/files/ecd-nsw-central-murray-forests.pdf.

Man agement

[7.230]

chapter 7 Commonwealth environmental assessment and approval

Threatened species and communities [7.190] A brief overview of the categories of threatened species and communities is presented

below. Threatened species and communities are provided for in Part 13 of the EPBC Act. For a full discussion, see [12.150].

Threatened species [7.200] A species may be listed in one of the following categories:

• • • • • •

extinct extinct in the wild critically endangered if it faces an extremely high risk of extinction in the wild in the immediate future endangered if it faces a very high risk of extinction in the wild in the near future vulnerable if it faces a high risk of extinction in the wild in the medium-term future conservation dependent if the species is the focus of a specific conservation program, the cessation of which would result in the species becoming vulnerable, endangered or critically endangered. Alternatively, a species of fish that is the subject of plan of management which is necessary to maintain its conservation status may also be defined as "conservation dependent."

Thre atened communities [7.2 1OJ A threatened ecological community may be listed in one of the following three

categories: 1. critically endangered, if it is facing an extremely high risk of extinction in the wild in the immediate future 2. endangered, if it is not critically endangered but is facing a very high risk of extinction in the wild in the near future 3. vulnerable, if it is not critically endangered or endangered but is facing a high risk of extinction in the wild in the medium-term future.

[7.180] The development of management plans for Ramsar wetlands is discussed in Chapter 4 at

[4.630]. The contents of these plans reflect the obligations outlined in the Ramsar Convention (reg 10.02, Schedule 6) . Accordingly, a management plan for a Ramsar wetland should (amongst other things):

• describe the ecological character of the wetland, and the characteristics that make it a wetland of international importance under the Convention • state what must be done to maintain its ecological character • state mechanisms to deal with the impacts of actions that individually or cumulatively endanger its ecological character • state whether the wetland requires rehabilitation, and if so, explain how this will be achieved.

W hat is protecte d? [7.220] A person cannot, without approval, take an action which has, will have or is likely to

have a significant impact on a listed threatened species or community (ss 18, 18A). It is the species or community as a whole which is protected.

Protection of critical habitat [7.230] The Commonwealth Minister may identify and list habitat critical to the survival of a listed threatened species or ecological community. Details of this identified habitat are recorded in a register of critical habitat (s 207 A).

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(7.240)

Listing as critical habitat provides some protection. It is an offen~e for a person to ta~e an action they know will significantly damage the critical habitat of a listed threatened species or ecological community, but only if the critical habitat is in a Commonwealth area (s 207B). The only critical habitats that have been listed to date are:

• the remote habitat of three species of albatross • the habitat of the black-eared miner in South Australia • 20 ha of grassland in the ACT, where the Ginninderra peppercress grows. Full details of the species and communities listed in the various categories can be found at: http://www.environrnent.gov.au/biodiversity/threatened. The Register of Critical Habitat can be found at: http://www.environment.gov.au/cgi-bin/ spra t/pu blic/publicregisterofcri ticalha bit at. pl.

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• decommissioning or rehabilitating any facility or area in which an activity described above has been undertaken • any other type of action set out in the Regulations (see reg 2.01, which states that an action includes establishing, significantly modifying, decommissioning or rehabilitating a facility where radioactive materials at or above the specified activity level are, were, or are proposed to be used or stored).

What is a Jorge-scale disposal facility? [7.260] A facility used for the disposal of radioactive materials at or above the specified activity level is defined as "large-scale" (reg. 2.03).

Commonwealth marine area Migratory species [7.240] A person must not, without approval, take an action that has, will have, or is likely to

have, a significant impact on a listed migratory species (ss 20, 20A). Listed migratory species include species listed in: appendices to the Bonn Convention (the Convention on the Conservation of Migratory Species of Wild Animals) under which Australia is a range state the Agreement Between the Government of Australia and the Government of the Peoples Republic of China for the Protection of Migratory Birds and their Environment (CAMBA)

• • • the Agreement Between the Government of Australia and the Government of Japan and for the Protection of Migratory Birds and Birds in Danger of Extinction and their Environment (JAMBA)

• an Agreement Between the Government of Australia and the Government of the Republic of Korea for the Protection of Migratory Birds (ROKAMBA). An up-to-date list of listed migratory species can be found at http://www.environment.gov.au/ cgi-bin/sprat/public/publicshowmigratory.pl.

Nuclear actions

[7.270] A person must not, without approval, take an action in the Commonwealth marine area that has, will have or is likely to have a significant impact on the environment (ss 23(1), 24A).

Further, a person must not, without approval, take an action in the "Australian Jurisdiction" that has, will have or is likely to have a significant impact on the Commonwealth marine area (ss 23(2), 24A). This includes Australia's land and waters including the exclusive economic zone {extending 200 nautical miles offshore) and the continental shelf (see s 5(5)). There are other detailed provisions relating to the impacts of fishing (s 23(3), 23(5), 23(6)). The Commonwealth marine area includes any part of the sea that is not State or Northern Territory waters, and that is within Australia's exclusive economic zone and/or over the continental shelf of Australia. This includes the water, seabed and airspace (s 24). Generally, the Commonwealth marine area stretches from three nautical miles to two hundred nautical miles from the coast. By way of illustration, discharge of waste from a pipe at the shoreline from a land-based activity is only a controlled action if it is likely to have a significant impact on the environment at least three nautical miles from the shore. The onus is on a proponent to refer an action (s 68), though States and Territories, as well as a Commonwealth agency with administrative responsibility for a proposal may refer actions to the Minister (ss 69, 71).

[7.250] A person must not take a "nuclear action" without approval (ss 21, 22A). Nuclear

actions include (s 22): establishing or significantly modifying a nuclear installation

• • transporting spent nuclear fuel or radioactive waste products arising from reprocessing • establishing or significantly modifying a facility for storing radioactive waste products arising from reprocessing • mining or milling uranium ore (excluding operations for recovering mineral sands or rare earths) • establishing or significantly modifying a large-scale disposal facility for radioactive waste (see [7.260])

Great Barrier Reef Morine Pork [7.280] A person must not, without approval, take an action in the Great Barrier Reef Marine

Park that has, will have or is likely to have, a significant impact on the environment. Further, a person must not take an action outside the Great Barrier Reef Marine Park but in the Australian jurisdiction that has or will have or is likely to have a significant impact on the environment in the Great Barrier Reef Marine Park (ss 24B and 24C). This is qualified by section 43, which allows an action to be taken in a zone of the Park if it is for a purpose for which, under the zoning plan made under the Great Barrier Reef Marine Park Act 1975 (Cth), the zone may be used or entered without permission.

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[7,290)

Accident on the Reef [7.290] The immediate damage resulting from the 3 April 2010 grounding of a bulk carrier on the Great Barrier Reef, a World Heritage site covered approximately 2.5 km, with reef scarring and potentially toxic paint residue having been found. The coral and sea bed structure was completely crushed in some areas and approximately three tons of oil was leaked into the sea. Officers of the ship were charged with breaches of the Great Barrier Reef Marine Park Act 1975, not the EPBC Act.

Matters of Commonwealth responsibility [7.300] As well as matters of NES, the EPBC Act controls actions on or affecting Commonwealth land and actions by Commonwealth agencies.

Actions on or affecting Commonwealth land [7.310] A person must not, without approval, take an action on Commonwealth land that has,

will have or is likely to have a significant impact on the environment (ss 26(1), 27A(l), 27A(2)). An action taken anywhere in the Australian jurisdiction that affects Commonwealth land is also regulated if it has, will have or is likely to have a significant impact on Commonwealth land (ss 26(2), 27A(3), 27A(4)).

Actions by Commonwealth agencies [7.320] The Commonwealth, including agencies of the Commonwealth, must not take any

action anywhere without an approval if that action is likely to have a significant impact on the environment anywhere (s 28). This catch-all provision is there to ensure that the Commonwealth assesses its own actions.

Exemptions [7.330] An action that would normally be regulated under one of the provisions discussed above

does not require approval from the Minister under the EPBC Act if it falls within one of a number of exemptions. These are listed below, and then each is subsequently discussed in more detail.

• The action is approved by a State or Territory, and taken in accordance with a management arrangement or authorisation process that has been accredited bilaterally. • There has been a declaration by the Minister. • The action is a forestry operation under a regional forest agreement. • It is an authorised action that takes place in the Great Barrier Reef Marine Park. • The action is exempted under section 160. • The action is exempted in the national interest. • The action is exempted for reasons of national security or emergency.

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• The action is authorised by a facility installation permit under the Telecommunications Act 1997 (Cth). • The action is undertaken in a specified manner. • The action was authorised before the Act commenced. Actions declared in a bilateral agreement [7.340] Approval is not required if the action is approved by a State or Territory in accordance with a management arrangement or authorisation process that has been accredited bilaterally (ss 29, 46).

At the time of writing, bilateral "approval" agreements for each State and Territory were in draft form. In order to become law, these draft agreements must be tabled by Parliament and survive any potential notice of motion for disallowance. Environment groups have expressed opposition to bilateral approval agreements, arguing that State and Territory laws do not meet the accreditation requirements set out in the EPBC Act or the standards outlined by the Commonwealth in its 2014 publication entitled Standards for Accreditation of Environmental Approvals under the Environment Protection and Biodiversity Act 1999. It has also been argued that the Commonwealth is ultimately responsible for ensuring that Australia meets the international legal obligations which underpin the Act, and that States often have conflicting interests as they benefit directly from the projects that they are approving.

Declarations by the Minister [7.350] The Minister may declare in writing that an action does not require approval if it has

been approved by the Commonwealth in accordance with a management arrangement or authorisation process that has been accredited by the Minister (ss 32 and 33 ). Several such declarations, concerning fisheries, have been made following strategic assessment (see [7.650]) and endorsement of plans of management. Actions approved in accordance with such a plan do not require approval, and an endorsed plan is an "accredited management plan" for the purposes of the declaration. The Minister may also declare that approval is not needed where the action is in an area covered by a Bioregional plan (see s 176) and the action is in accordance with the Bioregional plan. Bioregional planning provides for a landscape based approach to biodiversity conservation, including matters of national environmental significance. It can be carried out in partnership with State and Territory governments where a bioregion is not wholly within a Commonwealth area.

Marine Bioregional Planning [7.360] In 2011, draft Marine Bioregional Plans for the North-west, South-west, Temperate east

and South marine regions were released for public exhibition. These plans were finalised in 2012 and describe the marine environment and conservation values for each region, outline biodiversity objectives, identify conservation priorities and specify strategies and objectives to

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[7.370]

meet these priorities. The Plans themselves are not legally binding instruments. However, the Minister is required to have regard to them when making decisions under the EPBC Act that relate to any of the four regions covered by a Plan (see http://www.environment.gov.au/marine/ marine-bioregional-plans).

Forestry operations [7.370] A regional forestry agreement (RFA) is an agreement between a State and the Commonwealth which sets out how a particular area of forest is to be managed, having regard to certain criteria outlined in the Regional Forests Agreement Act 2002 (Cth). Forestry operations that are subject to a RFA do not require approval under the EPBC Act as long as they are undertaken in accordance with that agreement (see EPBC Act, Pt 4, Div 4, discussed at [13.30]). There are currently 10 RFAs in place across four States, namely NSW, Victoria, Western Australia and Tasmania. There is considerable debate surrounding the extent to which these agreements result in the sustainable management of forests and protect areas of high conservation value. For example, it has been argued that RFAs are not properly enforced, resulting in the destruction of important habitat. The 2009 independent review of the EPBC Act (the "Hawke Report") recommended that the EPBC Act be amended to allow the Minister to apply the Act if a statutory review of a RFA indicated (amongst other things) "serious non-performance" with the terms of that RFA. At the time of writing, this recommendation had not been implemented by the Commonwealth. See The Australian Environment Act: Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (October 2009), the Hawke Report; see http://www.environment.gov.au/epbc/review/publications/final-report.html.

Case study: Brown v Forestry Tasmania (No 4] and Forestry Tasmania v Brown [2007] FCAFC 186 [7.380] Brown v Forestry Tasmania (No 4) (2006) 157 FCR 1; [2006] FCA 1729;

Forestry Tasmania v Brown (2007) 167 FCR 34; [2007] FCAFC 186 Senator Bob Brown made an application under s 475 of the EPBC Act seeking an injunction to restrain Forestry Tasmania from logging in the Wielangta State Forest. Senator Brown alleged that the operations being undertaken breached s 18(3) of the EPBC Act, which states that an action that has, will have or is likely to have a significant impact on a listed threatened species included in the endangered category, is only permissible if approved by the Minister. In this case, the relevant species were the Tasmanian wedge-tailed eagle, the broad-toothed stag beetle and the swift parrot. Senator Brown also sought three declarations: that the Tasmanian Regional Forestry Agreement was not a RFA for the purposes of the EPBC Act; that the forestry operations in the Wielangta State Forest were likely to have a significant impact on several specified threatened species; and that the forestry operations would not be undertaken in accordance with the RFA. Justice Marshall of the Federal Court found that the Tasmanian Regional Forestry Agreement was a RFA for the purposes of the Regional Forests Agreement Act 2002 (Cth). The Court also held that existing and proposed forestry operations were likely

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to have a significant impact on the species in question. However, it held that Forestry Tasmania was not undertaking its forestry operations in accordance with the RFA (as protecting the species was a condition of the RFA). As a consequence, the exemption for approval under the EPBC Act no longer applied. These findings were overruled by the Full Court of the Federal Court. The Full Court held that the Tasmanian RFA did not require Forestry Tasmania to explicitly protect the three listed species, only to set up a comprehensive, adequate and representative reserve system (CAR) as per the requirements of the Regional Forests Agreement Act 2002. As the RFA provided for a CAR, the forestry operations were validly exempted from further approval under the EPBC Act.

Great Barrier Reef Marine Park [7.390] Approval is not required if the action is taken in the Great Barrier Reef Marine Park and is authorised by certain instruments issued under the Great Barrier Reef Marine Park Act 1975 (Cth) (s 43).

Exemptions under section 160 [7.400] In some cases, a Commonwealth agency need not obtain approval from the Minister, but need only obtain and consider advice. These cases are either listed in the EPBC Act (ss 160(2)(a) - (c)) or prescribed in regulation 6.01 made under section 160(2)(d).

Cases that do not need approval are:

• Commonwealth overseas aid projects • management plans for aircraft operations or major airport development • actions authorised by a permit under the Environment Protection (Sea Dumping) Act 1981 (Cth) (see [9.2330]) • actions authorised by a Basel permit under the Hazardous Waste (Regulation of Exports and Imports) Act 1989 (Cth) • actions authorised by a permit or an exemption certificate under the Sea Installations Act 1987 (Cth). In these cases, approval is not required if the action has been authorised by a government decision and the Minister's advice has been considered.

Exemptions in the national interest [7.410] Approval is not required if the Minister declares that it is in the national interest to grant an exception (s 158). This happens rarely. In 2000 the Minister granted a general exemption for all actions taken in accordance with the National Plan to Combat Pollution of the Sea by Oil and Other Noxious and Hazardous Substances. In September 2009 the Minister exempted the drilling of a relief well to stop the spill from the Montara oil well.

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Cases of national security or emergency

Determining likely significant impact

[7.420] An action by the Commonwealth does not require approval if the Minister declares that the Act does not apply to it for reasons of national security or emergency (s 28(3)).

[7.460] Where a proposal may have a significant impact on a matter of national environmental significance, it must be referred to the Minister for consideration. The Minister makes the final decision on whether there is likely to be a significant impact, and thus whether the action is a controlled action.

Telecommunications facilities [7.4:J0] Approval is not required if an action (such as erecting a mobile phone tower) is authorised by a facility installation permit granted under the Telecommunications Act 1997 (Cth) (Sch 3, cl 28).

The only qualification is that the Australian Communication Authority must consult the Environment Secretary before issuing a facility installation permit. "Environment Secretary" means the Secretary to the Department responsible for the administration of the Act (see Sch 3, reg 2).

Actions taken in a particular manner [7.440] Some actions do not require approval if they are to be taken "in a particular manner"

(s 77 A) . The Minister, in giving a notice, can specify how the action is to be carried out. It is an offence to carry out an action in a manner different from that specified. The Hawke Report (A Hawke, Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, October 2009) found that "particular manner" decisions cause problems for compliance and enforcement, including difficulty in interpreting whether an action is "inconsistent" with such a provision and "particular manner" provisions being so vague as to be difficult to monitor and enforce (at 16.41-16.43).

Who can refer a proposal? [7.470] If a person who proposes an action thinks that it may be a controlled action, they must refer it to the Minister (s 68(1)). Other ways in which a matter may be referred are:

•

A State or Territory government or agency that has responsibilities relating to the proposed action can refer the proposal to the Minister (s 69). This includes a local council (see s 528). But there is no requirement for these bodies to refer actions.

• The Minister may request the person who proposes the action to refer it (s 70). If no referral is made within the required time, the Minister can deem the action to have been referred. • A Commonwealth agency that has responsibilities relating to the proposed action can refer it to the Minister (s 71 ).

Anyone may supply information that might influence the Minister to request that the matter be referred. However, members of the public have no power to refer proposals.

Supplying information in a referral [7.480] Information that must be provided in a referral is outlined in Schedule 2 to the Regulations.

The referral must state (reg 4.03; Sch 2):

Actions with prior authorisation [7.450] There are two sections in the EPBC Act which exempt actions with prior authorisation.

Section 43A provides that approval is not required for a use of land, sea or seabed that was authorised by a specific environmental authorisation immediately prior to the commencement of the Act and which continues to be in force. An example of an environmental authorisation would be a development consent issued by a State government. Section 43B provides that approval is not required for an action that is a lawful continuation of a use of land, sea or seabed that was occurring immediately before the commencement of the Act. This exception is the equivalent of the existing use provisions in the Environmental Planning and Assessment Act 1979 (see [1.2 80]). Like those provisions, it does not allow an existing use to be enlarged, intensified or expanded without consent.

• a description of the proposal • is the nature and likely impacts of the proposal, as well as details regarding the source, currency and reliability of this information • measures to avoid or reduce impacts • the environmental record of the person or company proposing to take the action • what uncertainties, if any, are in the information. It is an offence under the Act to give false or misleading information (ss 489 - 491).

These provisions are important. Environmental impact statements at the State level often contain assertions that have an air of authority but, on examination, prove to be either highly qualified or simply matters of opinion.

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[7.490]

Case study: A misleading referral

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What is significant?

[7.490) Mees v Roads Corporation (2003) 128 FCR 418; [2003] FCA 306 dealt

with a proposal to build a section of freeway. The applicant argued that the information in the referral was misleading: it failed to mention the strong chance that a freeway link (the final section of freeway linking two other sections of road) would be built across an area of environmentally sensitive land. The court held that there was in fact a strong chance that the link would be built, and that the failure to mention this in the referral was misleading. In doing so the court had regard to cases under what was then the Trade Practices Act 1974 (Cth) where silence has been held to constitute misleading conduct. The court noted that the Minister had no fact-finding role in the process and relied on information provided in the referral. The purpose of the EPBC Act is to protect the environment: if the Minister had to make determinations about proposals without the full information required by the Act and Regulations, the Act's purpose would be subverted.

What impacts? [7.500] In dealing with the EPBC Act it is important to understand how broadly an action's

impact should be considered. The courts have required a sufficient link between the action and the impacts, but once that link has been demonstrated, both direct and indirect effects are to be considered. For example, in the Nathan Dam case (Queensland Conservation Council Inc v Minister for Environment and Heritage (2004) 139 FCR 24; [2004] FCAFC 190), the Minister had decided that the only "relevant impacts" of the proposal that had to be assessed were the direct impacts of the construction of the darn on listed species and communities. The potential impacts of irrigation by other people using water from the darn were not impacts of the referred action. The Court held that the ordinary meaning of "impact" included the indirect consequences of an action and may include the results of acts by someone other than the principal actor. Subsequently the EPBC Act was amended to provide limits to the extent of the meaning of "impact". Section 52 7E( 1) now provides that where consequences flow indirectly from an action, the question is generally whether the action is a substantial cause of those consequences. However, special provisions apply where a person takes an action and as a consequence another person takes a secondary action which has not been requested by the first person. In these circumstances, the general position is that the environmental consequences of the secondary action need only be considered by the first person if the primary action facilitates the secondary action to a major extent and the secondary action and its consequences were reasonably foreseeable (s 527E(2)).

Administrative guidelines [7.510) The Commonwealth has published three separate "significant impact guidelines" to

provide proponents, governments and the Minister with guidance as to whether an action may have a significant impact. 1.

Matters of National Environmental Significance, Significant Impact Guidelines 1.1 Act 1999 (2013) (General Guidelines)

2.

Significant impact guidelines 1.2 - Actions on, or impacting upon, Commonwealth land and Actions by Commonwealth Agencies (2006) (Commonwealth Guidelines)

3.

Significant Impact Guidelines 1.3: Coal seam gas and large coal mining developments impacts on water resources (2013) (CSG and Coal Guidelines).

The Coal and CSG Guidelines were created following the insertion of a tenth matter of national environmental significance, namely the "water trigger" (see [15.130]). The Commonwealth Guidelines and CSG and Coal Guidelines are to be read in conjunction with the General Guidelines. The meaning of "significant" is subjective, and the Minister or, ultimately the courts, must decide whether an impact is significant. However, the General Guidelines state that: A "significant impact" is an impact which is important, notable, or of consequence, having regard to its context or intensity. Whether or not an action is likely to have a significant impact depends upon the sensitivity, value, and quality of the environment which is impacted, and upon the intensity, duration, magnitude and geographic extent of the impacts. This is consistent with Justice Branson's interpretation of "significant impact" in Booth v Bosworth (2001) 114 FCR 39; [2001] FCA 1453, the first full trial brought under the EPBCAct. The significant impact guidelines include significant impact criteria for each matter of national environmental significance. For example, the General Guidelines state that an action is likely to have a significant impact on the Great Barrier Reef Marine Park if there is a real chance or possibility that the action will "result in a substantial change in air quality or water quality (including temperature) which may adversely impact on biodiversity, ecological health or integrity or social amenity or human health." Industry Guidelines have also been developed to assist specific industry sectors. These supplements are designed to be read in conjunction with the significant impact guidelines. At the time of writing, there were five Industry Guidelines addressing the following matters: interactions between offshore seismic exploration and whales; offshore aquaculture; windfarms; agriculture; and marine bioregional plans.

Case study: The HSI Case [7.520] The Guidelines are not amendments to the law. In Humane Society

International v Minister for Environment and Heritage (2003) 126 FCR 205, the Humane Society challenged a supplement to the Guidelines advising that people who

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[7.530]

held and complied with a State government permit to kill grey-headed flying foxes did not need to make a referral under the EPBC Act. The Court held that this statement was not authorised by the Act and could not grant an exemption from the Act.

[7.620]

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The assessment of a proposal may be: on preliminary documentation by public environment report by environmental impact statement by public inquiry.

Reliability of information

Related actions [7.530] In determining significance, the whole of a series of activities by a proponent ought to be considered. This is clear from the definition of "action", which includes "an activity or series of activities" . Section 74A gives the Minister the power to decide not to accept a referral if satisfied that the action referred is part of a larger action the person proposes to take.

Developments at Eastern Creek

[7.580] The Department doesn't have the resources or expertise to gather its own information about every referral, or to check the information it is given. It is very dependent on the reliability of the information supplied by proponents.

The Hawke Report (see above) has recommended (Recommendation 24) that there be an industry Code of Conduct for consultants supplying information for the purposes of the environmental impact assessment and approval regime under the Act, with enforcement powers given to ACCC and a system of follow up audits.

[7.540] Unfortunately, section 74A appears to be ignored on occasion. For example, in July

2004 a developer submitted two referrals on the same day for industrial development at Eastern Creek. The proposals required the removal of two areas of Cumberland Plain woodland close to each other, one with an area of a hectare and the other with an area of a hectare and a half. Neither referral mentioned the other. The Department determined both referrals on the same day and decided that neither proposal was for a controlled action. Neither determination made mention of the other related development.

The precautionary principle [7.550] The Minister must take account of the precautionary principle in determining whether

an action is a controlled action (s 391). Under this principle, a lack of scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage. See [1.220].

The assessment process

Assess