Reported Decision : 114 LGERA 35 Land and Environment Court of New South Wales CITATION : Wilson on behalf of Gurrungar Environment Group v Bourke Shire Council and Ors [2001] NSWLEC 28 APPLICANT Wilson on behalf of Gurrungar Environment Group PARTIES : RESPONDENTS Bourke Shire Council and Ors FILE NUMBER(S) : 10312 of 2000 CORAM: Pearlman J KEY ISSUES: Development Consent :- designated development - objector appeal - scope of appeal - s 90(1) considerations - relevance LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 4(1), s 87(1), s 90(1), s 98(1) Environmental Planning and Assessment Regulation 1994 sch 3 CASES CITED: Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376; Shoalhaven City Council v Lovell (1996) 136 FLR 58 DATES OF HEARING: 08/02/2001 DATE OF JUDGMENT: 05/04/2001 APPLICANT Mr P W Larkin (Barrister) SOLICITORS Environmental Defender's Office Ltd FIRST RESPONDENT Mr J F Whitehouse (Solicitor) LEGAL REPRESENTATIVES: SOLICITORS Minter Ellison SECOND AND THIRD RESPONDENTS Mr P J McEwen SC SOLICITORS Bruce & Stewart JUDGMENT: IN THE LAND AND 10312 of 2000 ENVIRONMENT COURT Pearlman J OF NEW SOUTH WALES 4 May 2001 BRUCE WILSON ON BEHALF OF GURRUNGAR ENVIRONMENT GROUP Applicant v BOURKE SHIRE COUNCIL First Respondent HOYNES WHEELER & THORNE PTY LTD Second Respondent CLYDE AGRICULTURE LTD Third Respondent JUDGMENT Introduction 1. This decision concerns an application to limit the scope of the appeal the subject of these proceedings. 2. The substantive proceedings are an objector appeal under s 98 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") brought by Mr Bruce Wilson on behalf of the Gurrungar Environment Group. The appeal is against a development consent granted by Bourke Shire Council to the second respondent for above ground water storage and irrigation agriculture on the property "Beemery", between Bourke and Brewarrina in western New South Wales. 3. By notice of motion, Bourke Shire Council ("the council") seeks orders that: (1) The proceedings be limited to matters relating to the component of the development application the subject of the appeal which is designated development, namely the artificial waterbodies. (2) The proceedings exclude consideration of: (a) the component of the development application which is not designated development, namely irrigated agriculture; (b) matters which are subject to Part 5 of the Environmental Planning and Assessment Act, namely allocation of water under the Water Act 1912. (3) The Applicant submit a revised Statement of Issues and revised Particulars having regard to 1 and 2 above. Background 4. On 1 May 1996, the second respondent, on behalf of the third respondent, lodged development application DA 635 of 1996 with the council for two "above ground water storages" with a combined volume of 21,000 ML on Beemery. 5. The volume of the water storages was such that they fell within the description of "artificial waterbodies" within sch 3 of the Environmental Planning and Assessment Regulation 1994 ("the 1994 Regulation"), and accordingly constituted designated development. A three volume environmental impact statement ("EIS") accompanied the development application. 6. The EIS reveals the following: (1) The purpose of the water storages was to facilitate the production of cotton on Beemery; (2) The area to be occupied by the water storages was within the Bourke Shire's local government area, although cotton farming was to take place both in that area and on land within the Brewarrina Shire local government area. (I shall refer to that part of Beemery within the Bourke Shire local government area as "the site"); (3) Development for the purpose of water storages was a use permissible with consent. This followed from the zoning of the site as No 1 Non-Urban under Interim Development Order No 1 - Shire of Darling ("the IDO"), (although the EIS refers to this instrument, apparently incorrectly, as "Bourke Local Environmental Plan No 1"); (4) Development for the purpose of agriculture was permissible without consent under the IDO. However, the EIS recognised that the proposed cotton farming operation would require two other approvals, namely: (i) Approval under the Western Lands Act 1901 from the Department of Land and Water Conservation to a change of use of certain western land leases from grazing to irrigation and mixed farming; and (ii) Approval under the Water Act 1912 to the transfer of parts of certain water licences. (4) Development consent was sought only for the water storages as "[t]he other cotton farm development components do not require development consent" (EIS vol 1, p 3). 7. On 17 June 1996, the applicant, Mr Wilson, lodged an objection to the development application. 8. On 6 March 1998, the development application was amended, and a supplementary EIS was lodged. The supplementary EIS expressly described (in section 3) the modified development as follows: The modified development … proposes construction of: · 1,820 hectares (4,500 acres) of flood irrigation cotton paddocks (of which 1,215 (3,000 acres) hectares would be sown annually); and · a single, two cell above ground 10,800 megalitre, 268 hectare water storage Including associated infrastructure (i.e. roads, channels, head ditches, taildrains and levee banks) the modified cotton farm development would cover an area of approximately 2,450 hectares. Furthermore, the transfer of water licences under the Water Act was no longer proposed. 9. On 18 December 1998, the Bourke Local Environmental Plan 1998 ("the Bourke LEP") was gazetted. It repealed the IDO and it had no savings and transitional provisions. Accordingly, the development application was required to be assessed under the new instrument. It appears to be common ground that, under the Bourke LEP, the site is within zone No 1(a)(Rural Zone). In that zone, agriculture (other than "irrigated agriculture") is permissible without consent, and development for the purpose of water storage and development for the purpose of irrigated agriculture are innominate uses permissible with consent. 10. By a notice of determination of the development application (bearing both the dates 3 May 1999 and 11 May 1999), the council granted development consent subject to conditions. The granting of consent was expressed to be "… to construct an above ground water storage facility and flood irrigation development". The competing claims 11. Against this background the competing claims of the parties may be summarised as follows. 12. Mr Whitehouse, on behalf of the council, and Mr McEwen SC, on behalf of the second and third respondents, claim that the development application is properly to be regarded as seeking development consent for only one development which is designated, namely, the water storage. In respect of that proposed development, Mr Wilson was entitled to lodge a third party appeal. However, the appeal must be confined to assessment of the designated development, and its scope must not be extended to development in respect of which Mr Wilson has no statutory right of appeal, namely, irrigated agriculture and nor should it include consideration of any approvals required under pt 5 of the EP&A Act in respect of the allocation of water under the Water Act. 13. Mr Larkin, appearing for Mr Wilson, submitted in response that the development application was for a single development which included various components which made up the whole but none of which could be viewed in isolation. The council treated the development application as one development application, and its single determination was made in respect to that one development application. Furthermore, the right of appeal conferred by the EP&A Act upon Mr Wilson was in respect of the determination of the council to grant consent to that development application, and nothing in the EP&A Act would operate to confine the appeal to a part of the development application instead of the entire application. As to the matters arising under pt 5 of the EP&A Act, Mr Larkin conceded that the development application was not made in respect of them, but submitted that the impact of water allocation was a proper consideration under s 90(1) of the EP&A Act. What is the nature of the appeal? 14. It should be noted at the outset that this development application falls to be determined under the EP&A Act in its unamended form, and references to the EP&A Act in this judgment are to the unamended Act. The development application had been made but had not been determined, when the amendments to the EP&A Act came into force on 1 July 1998, and pursuant to cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998, the development application must be determined as if the amendments had not been made. 15. Turning then to the EP&A Act, the first matter to note is that s 158 makes provision for regulations declaring any class or description of development to be "designated development". Clause 49 of the 1994 Regulation provides that development which is described in sch 3 to the 1994 Regulation is designated development for the purpose of the EP&A Act. 16. Once a development application is made for development which is described by one of the types of development specified in sch 3, the development application must be accompanied by an EIS (s 77(3)(d)), and it must be advertised and publicly exhibited (s 84). Section 87(1) provides that any person may make a written submission to the consent authority during the period specified in the notice given under s 84, and if the submission is by way of objection, "… the grounds of objection to the development application referred to in the notice shall be specified in that submission" (my emphasis). Section 95 provides that the consent authority must notify each person who made a submission under s 87 of its determination, and must notify each objector of the rights of the objector to appeal in respect of that determination. 17. Section 98(1) confers a right of appeal upon an objector in the following terms: 98(1) An objector who is dissatisfied with the determination of a consent authority to grant consent to a development application either unconditionally or subject to conditions may, within 28 days after the date on which notice of the determination was given under section 95, and in accordance with rules of court, appeal to the Court. (my emphasis) 18. The term "objector" is defined in s 4(1) of the EP&A Act as follows: "objector" means a person who make a submission under section 87 by way of objection to a development application to carry out designated development, but does not include a person who makes a submission under that section by way of objection to a development application to carry out development which is not designated development but is a development application to which any of the provisions of that section have been applied. 19. I turn now to the facts of this case. It is clear, and nor was it in dispute, that the development application, both in its unamended form and as later amended, was made for development described in one of the types specified in sch 3, namely, an artificial waterbody with "a maximum total water volume of more than 800 megalitres". 20. There is no doubt that Mr Wilson made a submission under s 87(1) by way of objection. A copy of his submission was tendered, and it sets out the grounds upon which the objection was made. It is to be noted that the objection was made on 17 June 1996, before the development application was amended, and no further objection was made by Mr Wilson after the amendments had been made. 21. I have formed the opinion that the language of the EP&A Act does not justify orders limiting the scope of the appeal in the way which the council and other respondents seek. Once Mr Wilson fell within the definition of "objector", he became entitled to appeal if he was, in the words of s 98, "… dissatisfied with the determination of a consent authority to grant consent to a development application …". Section 98(1) speaks of "a development application" and s 87(1), which confers the right to make a submission, speaks of the grounds of objection to "the development application …". An objector's right of appeal is not against designated development per se. Rather, once a development application is made for designated development the objector is entitled to object to the whole development application and is entitled to appeal in respect of the grant of consent to that development application. 22. The proper construction of the EP&A Act therefore makes it irrelevant to consider, for the purpose of some alleged requirement to limit the scope of the appeal, whether the development was comprised of component parts or not. Once the development application was made for designated development, even if that comprised only a part of the development for which consent was sought, the right to appeal is triggered and the subject matter of the appeal is the development application as a whole. 23. In this case there was no issue that part of the development for which consent was sought was designated development and accordingly questions of characterisation of the development of which approval was sought (cf Penrith City Council v Waste Management Authority and Anor (1990) 71 LGRA 376) do not arise. 24. It was said on behalf of the respondents that permitting an appeal in respect of the whole of the development application would be contrary to the scheme of the EP&A Act which is to confine s 98 appeals to consideration of designated development, there being no statutory third party appeal rights in respect of any other type of development. But this submission, in my opinion, misconceives the scheme of the EP&A Act. There is a gateway for third party appeals. They may only be brought by an "objector" who is a person who makes a submission in respect of a development application to carry out designated development. But once the gateway is cleared, the appeal relates to the particular development application as a whole. Nothing in s 98(1) indicates that the appeal is confined to any particular part of the development application - it is, rather, an appeal in respect of the determination of the consent authority to grant consent to the development application. To find otherwise would require reading into s 98(1), after the words "development application" the words "to carry out designated development". Those words appear in the definition of "objector" but do not appear in s 98(1). 25. The legal representatives of the respondents put much emphasis upon the second part of the definition of "objector" which excludes from the definition: … a person who makes a submission under (s 87) by way of objection to a development application to carry out development which is not designated development but is a development application to which any of the provisions of that section have been applied. 26. They submitted that the application of the definition means that Mr Wilson is an "objector" only in relation to that part of the development application which seeks consent to carry out designated development, and he is not an "objector" in relation to that part of the development application which seeks consent to carry out development which is not designated. 27. The second part of the definition of "objector" is couched in somewhat obscure language, but I think its proper meaning is derived by having regard to s 30(4) of the EP&A Act. Section 30(4) permits an environmental planning instrument to provide that the provisions of ss 84 and 87(1) (as well as other related sections of the EP&A Act) apply to development which is not designated development in the same way as those provisions apply to designated development. Section 4(1) defines development to which those provisions apply as a consequence of s 30(4) as "advertised development". Having regard to s 30(4), it is clear, I think, that the second part of the definition of "objector" excludes a person who has made a submission under s 87(1) to a development application to which s 87(1) has been applied by virtue of s 30(4), but which is not a development application in respect of designated development. Shortly put, the second part of the definition encompasses a person who makes a submission in respect of "advertised development". That person does not acquire a right to appeal under s 98(1) because that person is not "an objector" within the definition. 28. I find that Mr Wilson is an objector within the meaning of the EP&A Act, and is entitled to appeal to the Court under s 98(1). I conclude, for the above reasons, that his appeal is in respect of the development application in its entirety, and should not be confined in the manner which the council seeks. There is, in other words, a statutory basis for his whole appeal. 29. However, Mr Whitehouse raised an alternative ground to support the notice of motion, and I now turn to that ground. The s 90(1) considerations - a theory of relevance? 30. Mr Whitehouse submitted that the appeal unconfined would generate evidence about the whole of the Darling and Barwon Rivers from their headwaters to the sea, and Mr Whitehouse likened the consequences to "chaos theory applied to planning law of a butterfly flapping its wings in the Amazon causing a cyclone in New York" [T 8 February 2001, p 9 line 15]. 31. Accordingly, in Mr Whitehouse's submission, the Court should exclude from the appeal broad consideration of the irrigated agriculture and the allocation of water under the Water Act, because those matters are not relevant under s 90(1) of the EP& Act. Section 90(1) requires the consent authority, and the Court on appeal, in determining a development application, to take into consideration such of the matters specified in that section "… as are of relevance to the development the subject of that development application". Hence, in Mr Whitehouse's submission, the Court is required to consider whether any particular factual matter is of relevance. Mr Whitehouse posited a theory of relevance as a basis for doing so. 32. His theory, as I understood it, is that the determination of relevance under s 90(1) is a two-step process. First, the Court must consider whether a particular matter in a factual context has a bearing upon or is connected to a development. In other words, the Court asks itself whether there is a development, and whether there is an impact, and whether there is a process connecting the development and the impact. If the answer to these questions is yes, then the Court must consider whether, in the context of the particular case, the impact is relevant, that is, whether the connection between the development and the impact is direct, and not tenuous or remote. Applying that theory, the Court in this case would conclude that matters concerning the broader impacts of irrigated agriculture and water allocation under the Water Act are not relevant under s 90(1), and accordingly, the Court would limit the appeal in the manner the respondents seek. 33. Mr Whitehouse drew support for his theory of relevance principally from the judgment of Mahoney P in Shoalhaven City Council v Lovell (1996) 136 FLR 58, but he also sought support from the commentary of Professor Julius Stone in section 11 of chapter 7 of the "Law of Frustration" dealing with "The Legal Category of Indeterminate Reference". Despite my esteem for my former teacher, I do not find Professor Stone's commentary of much assistance in determining the question before the Court. 34. The passage from the judgment of Mahoney P upon which Mr Whitehouse relied is found at p 63 of the reported judgment. His Honour was directing his attention to two of the considerations specified in s 90(1), namely, (q) "the circumstances of the case" and (r) "the public interest". His Honour said: In considering the relevance of considerations of this kind, two questions may arise: whether the considerations can, in a proper factual context, be relevant to the exercise of the discretion or whether they cannot in any circumstances be so relevant: and, if they can be relevant, whether in the circumstances of the instant case, they are relevant. In my opinion, such considerations are within the scope of relevance in respect of the discretion and, in appropriate circumstances, may be relevant to what the court does. 35. Mr Whitehouse submitted that this passage corroborated the theory of relevance that he posited, and that it is incumbent upon the Court to direct its attention to the first step in the process, that is, whether the various considerations under s 90(1) can, in a proper factual context, be relevant. He argued that, in the application of this theory: (a) issues in relation to the direct impacts of irrigation agriculture in the immediate environs of the site are relevant, particularly issues of elevation of groundwater and associated salinity; (b) issues in relation to the utilisation of existing water licences are factually relevant, but the Court should confine its consideration of such matters to the immediate locality downstream of Bourke, because the water licences have been granted and are subject to consideration under part 5 of the EP&A Act; and (c) issues in relation to the effects on riverine ecology and hydrology extending from the site to the junction of the Darling River at Mildura are not factually relevant. 36. I am assuming, although it was not entirely clear to me, that Mr Whitehouse was submitting, as a logical outcome of this argument, that the orders sought in the notice of motion should be made. 37. In the course of argument, I expressed some misgivings as to whether the Court could, in the absence of appropriate evidence, make the orders sought simply on the basis that issues concerning irrigation agriculture and water allocation were not relevant considerations under s 90(1). On reflection, I have become convinced that my misgivings were justified. This is an interlocutory application in class 1 and no evidence about any of the issues in the appeal has yet been heard by the Court. The Court cannot determine the relevance of particular issues in a vacuum. Rather, the Court should proceed as it usually does - that is, evidence relating to the issues should be furnished, the relevance of the issues in the particular case should be considered as required by s 90(1), and appropriate weight should be attributed in the Court's discretion to those issues and the evidence furnished in relation to them. As I respectfully understand the passage from the judgment of Mahoney P, his Honour was saying no more than this - that the issues should be relevant, and if they are relevant, the Court should determine how relevant, that is, how much weight should be attributed to them. The passage from the judgment of Mahoney P does not compel or suggest that the Court determine the relevance of the issues or the evidence in advance of the hearing. 38. For these reasons, I reject the alternative ground for the orders which the council seeks in its notice of motion. 39. However, that is not to say that the issues could not be refined. The applicant has, in this case, prepared a statement of issues. Its second further amended statement of issues was filed on 26 September 2000, and is couched in quite general terms. Furthermore, the reply to the council's request for further and better particulars also appears to lack precision in many respects. It would be prudent and efficient in terms of cost and length of hearing to attempt to define the issues with particularity in advance of the hearing. An issues conference should be held for that purpose and Mr Whitehouse acknowledges that this course was appropriate. Conclusion 40. For the reasons I have set out, I decline to limit the scope of the appeal in the manner sought by the council in its notice of motion. Accordingly, my formal orders are: (1) The notice of motion filed 3 November 2000 is dismissed. (2) The exhibits may be returned. 41. I stand the proceedings over to a callover before the Registrar on 15 May 2001 so that appropriate directions for an issues conference can be made. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.