Planning and Environmental Law

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Total word limit (questions 1-5 inclusive): 1500 words David Robinson and David Brigden, August 2010 1. Write a case note on SJ Connelly CPP Pty Ltd v Ballina Shire Council (2010] NSWLEC 128 (10 marks) S J Connelly CPP Pty Ltd v Ballina Shire Council (2010) NSWLEC 128 This case involved the categorisation of the proposed development. The issue was whether stockpiling of rock and soil excavated from highway construction work constituted designated development under the Environmental Planning and Assessment Act 1979 (EPA Act). S J Connelly CPP Pty Ltd (Connelly) lodged a development application to place 100,000 m3 of rock and soil in 3 stockpiles over an area of 2.3 hectares on a site adjoining the new highway. Trucks would stockpile the material over a 3-4 month period, and the material would remain stockpiled for up to 2 years. The site was subject to flooding and contained acid sulphate soils. The cost of the development was stated as $1.2 million. Ballina Shire Council (Council) required Connelly to provide an environmental impact statement (EIS) before it would determine the application, contending that an EIS was required as the development was an extractive industry, within the description of that term in clause 19 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000, and therefore designated development. Connelly agreed with the Council that its development met many of the characteristics of extractive industry identified in clause 19: the rock and soil were extractive materials, volumes exceeded 30,000 cubic metres, the area of disturbance was greater than 2 hectares, and the site was an environmentally sensitive area with acid sulphate soil. However, the Court (agreeing with Connelly) held that the development was not an extractive industry and therefore not designated development under the EPA Act as the stockpiling did not constitute ‘industry’. The Court held that for a development to be an extractive industry there must be “some form of process directed to the “extractive material”, which involves the intervention of machinery or equipment as a necessary element in the conduct of the activity “.The proposed development did not involve this “industrial process “.The Court suggested that the stockpiling might have been an extractive ‘facility’ or extractive ‘works’ (being terms used in other parts of Schedule 3), but it was not an extractive ‘industry’. Citing the Court of appeal in Residents Against Improper Development Inc v Chase Property Investments Pty Ltd {2006} NSWCA 323; (2006} 149 LGERA 360, the Court also had regard to the apparent legislative purpose in identifying designated development in Schedule 3 of
“(including) in the definition of “extractive industries” those activities which by their nature are likely to have a significant impact upon the environment. ” In this context, the Court said (at (44]): “The relatively benign activity of carting extractive material to a place where it is stored or stockpiled without further activity or process is not intrinsically likely to have (a) significant environmental impact ….. . Conversely, the storing or stockpiling of such material by a process of “washing, crushing, sawing or separating” or by a process of a similar kind, does have the potential for serious impact. Thus, so it seems to me, the draftsperson was deliberate in qualifying storage or stockpiling by reference to the methods identified in the definitional provision of clause 19(1). None of those processes are intended by the development which is the subject of the DA.” The Court rejected the Council’s argument that the word “industry” should, in the context of clause 19(1), be afforded a broad meaning so that it required no more than the presence of “systematic work or labour” in order that the clause be engaged. Craig J also rejected Connelly’s subsidiary argument that the development was ancillary to the highway construction approved under Part 3A (and thus not designated development under clause 37 A to Schedule 3), finding that the development served “an independent purpose which does not subserve the road construction purpose ( Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 at 161)” and that “the stockpiling of spoil from the road works is development being carried out independently of the Bypass project as a discrete commercial venture.” The practical result of the decision was that Council was required to determine the development on its merits without Connelly having to prepare and lodge an EIS. 2. If the Land and Environment Court had declared the development in SJ Connelly CPP Pty Ltd v Ballina Shire Council {2010) NSWLEC 128 to be in respect of ‘designated developmen, what would be the implications for the developer? (4 marks) If the stockpiling operation had constituted designated development, the developer would have to prepare an EIS before the DA could be determined (section 78A{8)(a) EPAA). Secondly, any objector to the DA could appeal the merits of an eventual grant of consent (s98). 3. What enforcement action could be taken, and who could take it, if the developer proceeded to stockpile the excavated material in SJ Connelly CPP Pty Ltd v Ballina Shire Council [2010) NSWLEC 128 without first obtaining development consent? {5 marks) Failure to obtain consent before commencing development that first requires consent constitutes a breach of the EPAA for which civil and criminal remedies exist. The local council could issue demolition or cessation of use orders under section 1218 EPAA after first providing notice of the proposed order(s) and considering any representations, and provided reasons for the order{s) are given {sections 1211, 121K, 121L). Any person could seek orders in the Land and Environment Court to restrain the stockpiling, remove the material and to restore the land. The Court has the power to ‘make such orders as it thinks fit to remedy or restrain the breach’ {section 124). The Minister, the Director General or the local council could prosecute for failure to obtain development consent (section 125 and 127). The criminal standard of proof (beyond reasonable doubt) would apply before a court would convict. The local council could issue a penalty notice for failure to obtain development consent, however, this would not be appropriate in the circumstances because penalty notices are appropriate only for minor, one-off breaches where a small penalty would act as a deterrent, not for breaches of the magnitude of the proposed stockpiling operation. 4. Assume that, at the outset of its project planning, the developer in SJ Connelly CPP Pty Ltd v Ballina Shire Council {2010} NSWLEC 128 had sought your advice as to whether project approval could be obtained under Part 3A of the Environmental Planning and Assessment Act 1979 (‘EPAA’). Give that advice, referring closely to the relevant legislation. (4 marks) Part 3A only applies to development declared to be a Part 3A project under a State environmental planning policy (SEPP) or an order by the Minister published in the Gazette {section 758{1) EPAA). The Gazette should be checked to confirm that the Minister has not made a site-specific order. SEPP {Major Development) 2005 lists categories of development to which Part 3A applies in Clause 6 and Schedule l. Item 7 of Schedule 1 relates to extractive industries. In order for the stockpiling to be a Part 3A project, more than 200,000 tonnes of extraction per year must be involved, whereas only 100,000 tonnes total is involved in the subject case {at [14]), and the 100,000 tonnes involves stockpiling the product of extraction, not the extractive process itself. Alternatively, it might be argued that the stockpiling was under Part 3A because it was ancillary to another Part 3A project (Item 7(2)(a) of Schedule 1), however, the Court rejected the argument that the stockpiling was ancillary to the Part 3A Ballina bypass project (see the second last paragraph of the answer to question 1(above)). 5. Assume that an endangered ecological community under Threatened Species Conservation Act 1995, ‘White Box Yellow Box Blakely’s Red Gum Woodland’ (‘White Box EEC’) is present on the site in SJ Connelly CPP Pty Ltd v Ballina Shire Council {2010} NSWLEC 128. Taking into account the relevant discussion in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited {2010) NSWLEC 48, describe: a. the applicable biodiversity assessment requirements (under Part 4 EPAA); and b. the options available to Ballina Shire Council in determining this aspect of the development app lication, including with regard to the possible conditions of consent it might impose so as to maintain or improve regional biodiversity outcomes with respect to the White Box EEC. (7 marks) a. As the proposed stockpiling is in respect of development on land that supports the White Box EEC, the section SA EPAA assessment must be made as to whether the proposed development will significantly affect the White Box EEC. If not, then the DA can be determined on its merits, and the presence of the White Box EEC on the land will be one of the factors for consideration under s79C. If the proposed development will significantly affect the White Box EEC, the developer can choose one of two possible biodiversity assessment processes: 1. a species impact statement must be prepared (section 78A(8)(b) EPAA) and the concurrence of Director General of the Department of the Environment must be sought (section 79B(3)). The Director General is required to consider the factors in section 79B(S) in deciding whether or not to grant concurrence, or 2. the developer could consider engaging a consultant to apply for a biobanking statement for the land. If so, and consent is granted, it could then carry out any onsite conservation requirement, and purchase and retire the number and quality of biodiversity credits indicated in the biobanking statement. The latter relates to offsite actions to improve or maintain biodiversity values. At present, only one site in NSW is the subject of a biobanking arrangement. b. Ballina Shire Council can refuse to grant consent because of adverse effects on the White Box EEC. Alternatively, it can grant consent subject to conditions aimed at avoiding damage to the White Box EEC, or at minimizing damage. In addition, it could require biodiversity offset for the loss of White Box EEC. For example, in Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010) NSWLEC 48 some 0.2ha of onsite White Box EEC that would be lost by the grant of development consent to a limestone quarry. The Court required this loss to be compensated by conservation actions in relation to 6ha of White Box EEC offsite ((at [231)).

Case Name: IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v Special Minister of State

Cases Cited: AIJ19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2019) 168 ALD 331 Australians for Sustainable Development Inc v Minister for Planning (2011) 182 LGERA 370 Azriel v NSW Land & Housing Corp [2006] NSWCA 372 Bat Advocacy NSW Inc v Minister for the Environment Protection, Heritage and the Arts (2011) 180 LGERA 99 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 352

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