In the Zone - November 2024 Update

Welcome! What an exciting quarter it’s been, especially for our colleague David Gunter, Senior Associate, who recently received his Specialist Accreditation in Local Government, Planning & Environment Law.

In this issue of In the Zone, we’ve looked at some fascinating decisions; the Court of Appeal has held that a development consent for a mine was void and of no effect because the consent authority failed to consider the likely impacts of an off-site electricity transmission line, that was part of the single proposed development under the Environmental Planning and Assessment Act 1979 but not included in the development application. 

We consider a decision of the Court of Criminal Appeal, which found that the special executive liability provisions in the Protection of the Environment Operations Act 1997, do in fact apply to Council employees concerned in the management of the Council.

In Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77, Chief Judge Preston considered whether a subdivision that included mapped ‘coastal wetland’ land was ‘designated development.’

Justice Robson considers the ambit of the prohibition in the “essential services” clause in the Georges River Local Environmental Plan (Georges River Council v Eskander [2024] NSWLEC 98) and a sole director of a developer company was fined more than $110,000 for failing to comply with remediation order in Environment Protection Authority v Hughes [2024] NSWLEC 91.

Finally in a decision by the NSW Civil and Administrative Tribunal, Bega Valley Shire Council was ordered to disclose legal advice because it had failed to establish that the public interest considerations against the disclosure of that advice, outweighed the public interest.

At the end of this Bulletin, we also bring to your attention, some important legislative changes. Please contact us if you’d like to discuss any of the content in this Bulletin.

Court of Appeal

Court of Appeal addresses mandatory relevant considerations for a State significant development

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (16 August 2024) (Bingman). Access the case here.

Background

On 14 May 2020, Bowdens Silver Pty Ltd (Bowdens) lodged a development application (DA) for an open cut silver, lead and zinc mine. The development was State significant development under Div 4.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) due its capital investment value of more than $30 million. The relevant consent authority was the Independent Planning Commission (IPC).

The subject of the DA was the mine itself. However, Bowdens also proposed to build a 66kV transmission line which was required for the mine to function. The transmission line was not included as part of the DA. The IPC agreed that the line was outside the project area and accordingly did not consider the environmental impacts of the proposed 66kV transmission line when assessing the mine. The IPC granted consent to the DA.

The Bingman Catchment Landcare Group (BCLG) appealed the IPC’s decision in the Land and Environment Court. The primary judge, Justice Duggan, found that the transmission line was not a part of the single proposed development under s 4.38(4) of the EPA Act, and the IPC was not required to consider the environmental impacts of the transmission line. Duggan J also found that the impacts of the transmission line were not “likely” as the route had not yet been decided. Duggan J dismissed the application for judicial review of the decision of the IPC, upholding the IPC’s consent.

BCLG then appealed to the NSW Court of Appeal.

Is the 66kV transmission line exempt development?

Before addressing BCLG’s grounds of appeal, the Court considered whether the transmission line was exempt development.

The State Environmental Planning Policy (Transport and Infrastructure) 2021 provides that development for the purpose of electricity transmission by an electricity supply authority can be carried out without consent. Further, installation or upgrading of electricity lines of 66kV or less is exempt development that does not require development consent under Pt 4 of the EPA Act.

Ordinarily, exempt development does not require development consent under Pt 4 of the EPA Act. However, it was agreed between the parties that if s 4.38(4) were to apply, then the IPC’s consent for the transmission line would be required. Bowdens contended that if consent was required, it would be obtained later.

Section 4.38(4) of the EPA Act provides:

(4) If part of a single proposed development that is State significant development requires development consent to be carried out and the other part may be carried out without development consent—

(a) Division 5.1 does not apply to that other part of the proposed development, and

(b) that other part of the proposed development is taken to be development that may not be carried out except with development consent.

The Court of Appeal (White J with Adamson J agreeing) found that s 4.38(4) does apply, because the 66kV transmission line was an integral part of the mine. Therefore, consent from the IPC for the transmission line was required.

Grounds of appeal

BCLG brought three grounds of appeal:

1. the 66kV transmission line was part of the single proposed development within the meaning of s 4.38(4) of the EPA Act, and therefore its impacts were a mandatory consideration for the IPC
2. the impacts of the 66kV transmission line were likely impacts of the development which was a mandatory relevant consideration for the IPC, and
3. in the alternative to Ground 2, the IPC failed to consider whether the impacts were likely impacts of the development, giving rise to jurisdictional error that the primary judge failed to determine.

1. How does s 4.38(4) apply?

BCLG asserted that the operation of s 4.38(4) required the IPC to consider the environmental impacts of the transmission line when granting consent for the development application for the mine. However, White JA found that s 4.38(4) merely confirms that the IPC is the relevant authority to provide development consent for the transmission line. It does not require the IPC to give consent to the transmission line or consider its environmental impacts before it determines the DA. This is because there can be more than one development application for a single development, and consent for the 66kV transmission line may be granted later.

2. Were the likely impacts of the 66kV transmission line likely impacts of the primary development?

BCLG asserted that the IPC should have considered the likely impacts of the transmission line as these were mandatory relevant considerations under s 4.15(b) of the EPA Act. Section 4.15(b) provides that a consent authority must consider “the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality.”

The Respondent relied on Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 (Mullaley). In that case, Preston CJ rejected a challenge to the development of a pipeline, on the grounds that the route of the pipeline connections was unknown, resulting in uncertain environmental impacts. Accordingly, there was no “identifiable and certain other development that will cause off-site impacts,” and even if the impacts were identifiable, they did not have a “real and sufficient connection” to the application. However, White JA found that this case was not analogous to Mullaley, because in this case there was not sufficient evidence that Bowdens’ transmission line route was undetermined. Further, while White JA found it unnecessary to resolve the challenge to the correctness of Mullaley, he did not accept the assumption that “if the likely off-site impacts of the development the subject of the development application could not be determined, they can be ignored” (at [95]).

3. Did the IPC fail to consider the impacts of the 66kV transmission line?

Ground 3 was upheld, on the basis that the IPC failed to consider the likely impacts of the proposed transmission line, thus committing a jurisdictional error which the primary judge failed to recognise. White JA (with Adamson JA agreeing) declared the development consent void and ordered that Bowdens be restrained from developing the mine.

Price AJA’s dissent

Price AJA agreed that there was a jurisdictional error. His finding was that: The jurisdictional error of the IPC is confined, in my opinion, to the misunderstanding that the transmission line was not part of a single proposed development that is a State significant development which required the IPC’s consent under s 4.38 (at [130]). His Honour disagreed with the orders proposed by the majority, on the basis that if consent is required from IPC for the 66kV transmission line under s 4.38(4), it can be obtained later once the precise alignment of the transmission line is settled. This reasoning is consistent with the primary ruling by Justice Duggan. Price AJA further disagreed with White JA’s order that the development consent is void.

Key takeaways

The Court found that the transmission line was a part of a single proposed development that is State significant development within the meaning of s 4.38(4) of the EPA Act. Accordingly, the IPC’s failure to address s 4.38(4) resulted in their failure to consider the likely impacts of the transmission line for the purposes of s 4.15(b). In other words, the IPC did not consider whether the impacts were likely impacts because they believed they were irrelevant to the subject development application.

White J conceded that as the transmission line was not the subject of the application, the likely environmental impacts of the line were not directly caught by s 4.15(1)(b). However, because the proposed mine, which was the subject of the application, required electrical power to be delivered through the transmission line, its likely impacts were thus a mandatory consideration for the IPC (at [71]).

Proposed Legislative Changes

On 16 October 2024, the NSW Parliament introduced the Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024 (the Bill).

In the second reading speech for the Bill, the Minister for Planning and Public Spaces announced that the Bill was responding to the Bingman case, and although not seeking to overturn the Court of Appeal’s decision, it was intended to remove the uncertainty and delay in the assessment and determination of applications for State significant development which he feared would result from the judgement.

The Bill seeks to restore the general practice for assessing offsite enabling infrastructure under an appropriate alternative planning pathway. The main provisions in the Bill are as follows:

• Schedule 1 [1] provides that the Secretary of the Department of Planning, Housing and Infrastructure may determine that a particular development does or does not form part of a ‘single proposed State significant development’. As outlined in the second reading speech, this will allow the Planning Secretary to clarify when offsite enabling infrastructure should form part of the ‘single proposed development’ within the meaning of s 4.38(4) of the EPA Act.
• Schedule 1 [1] additionally provides that s 4.38(4) does not apply to a development where the Planning Secretary has determined that a particular development does not form part of a ‘single proposed development’. In such a case, that particular development can be assessed via an alternative pathway.
• A validation provision is included in Schedule 1 [2], providing that State significant development consents and offsite enabling infrastructure granted before the commencement of the Bill under the operation of s 4.38 remains valid.

General Manager successfully prosecuted for a Council’s contravention of the Protection of the Environment Operations Act 1997

Environment Protection Authority v McMurray [2024] NSWCCA 160 before White JA, Mitchelmore JA and Preston CJ (22 August 2024). Access the case here.

In this matter, the Court of Criminal Appeal considered whether s 169(1) of the Protection of the Environment Operations Act 1997 (POEO Act) applied to local councils in the same way it applied to corporations and, as such, whether the General Manager of a council was subject to the “special executive liability” in that section for the council’s contravention of the Act.

The Environment Protection Authority (EPA) prosecuted both Cootamundra-Gundagai Regional Council and its General Manager (Mr McMurray) for “causing a place to be used as a waste facility without lawful authority,” which is an offence under s 144(1) of the POEO Act. Council was the operator of the Cootamundra Sewage Treatment Plant and plead guilty to contravening its environment protection licence by receiving waste (in the form of leachate) from landfill and depositing it in a pond at the treatment plant.

The EPA charged Mr McMurray with committing the offence by relying on s 169(1) of the POEO Act. This section imposes a “special executive liability” on each person “who is a director of a corporation or concerned in the management of a corporation.” A person will not be liable under s 169(1) of the POEO Act if that person was not in a position to influence the conduct of the corporation in committing the offence, or if they used all due diligence to prevent the contravention by the corporation.

The issue before the Court was whether s 169(1) of the POEO Act applied to Mr McMurray as the General Manager of the Council. Mr McMurray argued that this provision did not apply as he was not a director of a corporation, nor concerned in the management of a corporation. The EPA submitted that s 169(1) of the POEO Act did apply to Mr McMurray in his role as General Manager due to the effect of s 220(4) of the Local Government Act 1993 (LG Act), which provides that:

 “A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation).”

The Court closely considered the wording of section 220(4) of the LG Act and held that s 169(1) of the POEO Act applied to Mr McMurray in two ways. First, the Court found that s 169(1) of the POEO Act applies to councils by way of s 220(4) of the LG Act because s 169(1) is “a law of the state”, and it applies “to and in respect of” a corporation. As s 169(1) of the POEO Act applies to the Council “in the same way” as it applies to and in respect of a corporation, the Court found that those who are “concerned in the management of” a Council (such as a council’s General Manager) can attract the “special executive liability” under this provision.

The second avenue by which the Court found that s 169(1) applied to Mr McMurray was because s 144(1) of the POEO Act applies to councils (again, through the operation of s 220(4) of the LG Act). That is, a Council will be guilty of an offence under the POEO Act if it causes a place to be used as a waste facility without lawful authority (as occurred in the present case). As s 144(1) of the POEO Act applies to councils in the same way it applies to corporations, and this section attracts “special executive liability” in s 169(1) (which applies to “each person...who is concerned in the management of a corporation”), the Court held that s 169(1) applied to Mr McMurray as a person “who is concerned in the management of” a Council that has contravened s 144(1) of the LG Act.

The Court’s decision that s 169(1) of the POEO applied to Mr McMurray in his role as General Manager meant that he was also taken to have contravened s 144(1) of the POEO Act by causing a place to be used as a waste facility without lawful authority. This decision is therefore authority that a General Manager of a local council – and other Council staff who are concerned “in the management” of the council -  may be subject to “special executive liability” under s 169(1) of the POEO Act if a council contravenes certain provisions of the POEO Act (due to the effect of s 220(4) of the LG Act). Council staff will not be liable under this provision, however, if they were not in a position to influence the conduct of the council in contravening the provision, or if they used all due diligence to prevent the contravention.\

Land and Environment Court

Court finds “subdivision” by itself of coastal wetlands does not trigger designated development

Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 by Preston CJ (31 July 2024). Access the case here.

Background

In Goldcoral Pty Ltd (Receiver and Manager Appointed) v Richmond Valley Council [2024] NSWLEC 77 Preston CJ has dismissed a Class 1 appeal against the Northern Regional Planning Panel’s refusal of a development application for a concept proposal and first stage of a residential subdivision. The development had a controversial and long history, having been the subject of previous litigation before the Land and Environment Court in the 1990s.

Preston CJ found that the controversial history of the development site had clouded community and Council perceptions, making the following remarks (at paras 7-9):

The idea of the development is founded and framed by the excessive and allegedly unlawful developments carried out on the land by the previous land owners, as well as the more extensive and less environmentally sensitive development originally proposed by Goldcoral in the development application first lodged in 2014. Those developments, and their perceived unacceptable environmental impacts, are seared in the memory of the Council, Ms Barker and the community.

The reality is that none of those developments is now being proposed by Goldcoral. Goldcoral has amended the development application to propose a residential subdivision that is less extensive and confined to areas of the land that have been previously cleared, many times and over many decades, so as to avoid significant impact on environmentally and culturally sensitive areas of the land.

The idea of the environment is founded and framed on conceptions of what the environment might have been at the time those previous developments were proposed and carried out. Those conceptions may have been idealized – the environment was conceived to be more pristine and ecologically intact than it really was. Regrettably, the carrying out of those previous developments continued a transformation of the environment that had begun over 40 years before.

The subject site that was proposed to be subdivided was in a residential zone (General Residential R1) and a “sensitive coastal location”, as the land was located within 100m of the mean high water mark and within 100m of coastal wetlands.

Among other matters, the Council contended two legal issues in the appeal, namely that:

1. development consent could not be granted for unauthorised works already constructed and not proposed to be removed under the amended development application, and
2. development consent could not be granted because the proposed development was designated development under cl 2.7 of State Environmental Planning Policy (Resilience and Hazards) 2021 (RAH SEPP).

Merit issues were also raised by the Council in the appeal which were largely related to the adverse environmental and cultural heritage impacts contended to arise from the proposed development. Preston CJ ultimately allowed the appeal, finding that the merit issues raised by the Council did not warrant refusal. His Honour also rejected the two legal issues raised by the Council in the appeal, as outlined below.

The unauthorised works legal issue

The Council contended that the internal road and drainage channel constructed by the previous land owners on the land and the public road and infrastructure works were unlawful. If those works were unlawful, the Council contended that Goldcoral should gain no advantage from those unlawful works.

Preston CJ found that the Council’s argument was “misguided.”  His Honour held (at 53):

There is no legal principle that development consent cannot be sought to carry out development to erect a building (which includes a structure) or to carry out works that would amend a building or works that are unlawful, and then to use in the future the new or amended building or works. That was recognised in Ralph Lauren at [128]. Contrary to the Council’s contention, development consent can be granted to the development proposed by Goldcoral to carry out works to upgrade the stretch of internal road through the littoral rainforest, to revegetate and use for conservation purposes the existing drainage channel in the littoral rainforest and to upgrade and use the road, bridge and infrastructure on Iron Gates Drive.

The designated development legal issue

Clause 2.7(1) of the RAH SEPP provides as follows (emphasis added):

2.7 Development on certain land within coastal wetlands and littoral rainforests area

(1) The following may be carried out on land identified as “coastal wetlands” or “littoral rainforest” on the Coastal Wetlands and Littoral Rainforests Area Map only with development consent—

(a) the clearing of native vegetation within the meaning of Part 5A of the Local Land Services Act 2013,

(b) the harm of marine vegetation within the meaning of Division 4 of Part 7 of the Fisheries Management Act 1994,

(c) the carrying out of any of the following—

(i) earthworks (including the depositing of material on land),

(ii) constructing a levee,

(iii) draining the land,

(iv) environmental protection works,

(d) any other development.

Clause 2.7(2) of the RAH SEPP provides that development for which consent is required by cl 2.7(1) is declared to be designated development. The Council submitted that because the proposed subdivision fell within the category of “any other development” it was designated development.

The Council’s contention that the proposed development was designated development depended on the RAH SEPP applying to the development. On the Coastal Wetlands and Littoral Rainforests Area Map under the RAH SEPP, part of the land was identified as “coastal wetlands.” The land proposed for the residential subdivision was wholly within the R1 General Residential zone. Nevertheless, the Council contended that development would still be carried out on land identified as coastal wetlands because one of the lots of the land that would be subdivided to create residential lots was identified as coastal wetlands.

Preston CJ rejected that the proposed development was designated development for the following reasons advanced by the developer:

1. The development application was to be assessed under the former State Environmental Planning Policy No 14 – Coastal Wetlands and State Environmental Planning Policy No 71 – Coastal Protection (which were in force when the development application was lodged), which did not declare the proposed development to be designated development, rather than RAH SEPP.
2. Even if RAH SEPP did apply to the development application, no part of the land identified as “coastal wetlands” under RAH SEPP will be subdivided – the boundaries of the lots shown on the plan of subdivision are outside of the area identified as “coastal wetlands.” The boundary between the residential allotments and the area mapped as coastal wetlands follows the splay at the interface of the R1 General Residential zone and the C2 Environmental Conservation zone, which coincides with the boundary of the area identified as coastal wetlands.
3. The subdivision of the land without the carrying out any works on the land does not involve the carrying out development “on land” within the area mapped as coastal wetlands.

His Honour held (at 79-80):

…although subdivision of land is development as defined in s 1.5(1) of the EPA Act, the mere subdivision of land by the procuring of the registration in the Office of the Registrar-General of a plan of subdivision without undertaking any physical work on the land, such as the carrying out of a work, does not involve the carrying out of development “on land.” Each of the development for which consent is required by cl 2.7(1) of the RAH SEPP is development that is “carried out on land.” The procuring of the registration of a plan of subdivision might involve the subdivision of land, which is development, but that subdivision is not “carried out on land.”

To carry out development on land involves doing something on the land. That is evident with the development specified in paragraphs (a) to (c) of cl 2.7(1) – they all involve physical work on the land with attendant impacts on the land and its vegetation. The catch-all category of “any other development” in paragraph (d) of cl 2.7(1) is no different. Development other than the developments specified in paragraphs (a) to (c) must also be “carried out on land.” The mere procuring of the registration of a plan of subdivision in the Office of the Registrar-General does not involve the carrying out of any development on land.

Court finds “essential services” essential to the grant of consent

Georges River Council v Eskander [2024] NSWLEC 98 by Robson J (26 September 2024). Access the case here.

In Georges River Council v Eskander [2024] NSWLEC 98 (Eskander) Justice Robson has found that a Commissioner’s application of clause 6.9 of the Georges River Local Environmental Plan 2021 (GRLEP) was erroneous at law.

Clause 6.9 of the GRLEP is in the following terms (emphasis added):

6.9 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required—

(a) the supply of water,

(b) the supply of electricity,

(c) the supply of telecommunications facilities,

(d) the disposal and management of sewage,

(e) stormwater drainage or on-site conservation,

(f) suitable vehicular access.

The Class 1 Appeal

The Class 1 appeal concerned the construction of a detached dual occupancy and a key issue in the proceedings was whether the subject site had suitable vehicular access. The site had a 20m street frontage, while at the rear of the property there was a small narrow lot owned by the Council (Council Lot). The Council Lot separated the subject site from an otherwise adjoining road by less than 1m. One of the proposed dual occupancies relied on this road for the purposes of vehicular access.

There was evidence before the Court that the Applicant had commenced Class 3 proceedings seeking orders for the grant of an easement over the Council Lot under s 40 of the Land & Environment Court Act 1979 (LEC Act). The Council was opposing the grant of the easement in those proceedings.

The Council thereby argued that, as a result of cl 6.9 of the GRLEP, there was no power to grant consent as there was, first, no existing legal right of access over the Council Lot and, second, that adequate arrangements had not been made for vehicular access. Council also maintained that because cl 6.9 was a “jurisdictional precondition,” it could not be satisfied by a deferred commencement condition.

Commissioner Gray nevertheless allowed the appeal and granted development consent subject to a deferred commencement condition which provided that the consent would not operate until the proponent satisfied Council (within 24 months) that there were “adequate written documents and plans” to address “[a]n easement for a right of carriageway” over the Council Lot “for the benefit of [the site], to provide vehicular access to the secondary dwelling”.

Decision on Appeal

The Council appealed the Commissioner’s judgment under s 56A of the LEC Act.

Among other matters, the Council argued that the Commissioner’s finding, namely that there was an extant application under s 40 of the LEC Act to obtain an easement, was not an “arrangement” for the purposes of cl 6.9, let alone something that had “been made”, by which the Commissioner could have assessed “adequacy”. 

Justice Robson found in favour of the Council on appeal, and in so doing provided the following construction of cl 6.9 of the GRLEP (at 55):

In my view, properly construed, where the consent authority forms the state of satisfaction that suitable vehicular access is available, the prohibition on the grant of consent otherwise in cl 6.9 of the GRLEP is lifted and, subject to other relevant matters requiring consideration under s 4.15(1) of the EPA Act, development consent can properly be granted (with conditions where appropriate). However, if the consent authority cannot form that state of satisfaction, the prohibition remains and, as submitted by Council, cl 6.9 then provides a second pathway being that the consent authority is to be satisfied that “adequate arrangements have been made” that the “essential” service will be available “when required.”

In terms of what constitutes “adequate arrangements” for the purposes of clause 6.9, His Honour observed (at 56) that there must be a current “arrangement” that has “been” made and be available “when required”. While this could be less “than a formal or binding promise,” Robson J found that there “must be some form of objective and tangible proof to constitute an arrangement as something “made”.

On the basis of this construction of cl 6.9, His Honour found that the Commissioner erroneously applied cl 6.9 of the GRLEP when forming the view that arrangements for suitable vehicular access had “been made.”

His Honour observed as follows (at 60-61):

…the Commissioner's opinion of satisfaction was, to a material extent, dependent upon success being enjoyed by the proponent in the Class 3 easement proceedings brought pursuant to s 40 of the Court Act. As Council maintained its opposition to the grant of the easement, there remained a prospect that the Court would not grant the easement, and this would have been known to the Commissioner.

Read properly and literally (and taking into account its purpose), cl 6.9 requires the consent authority to reach a state of satisfaction that arrangements “have been made” and that those words must be given their proper meaning.

Commissioner Gray’s decision was set aside and the Class 1 appeal was remitted to the Commissioner to be redetermined according to law. The Council was awarded its costs of the appeal.

Implications of the decision

The decision in Eskander confirms that a provision in an LEP framed in the terms of cl 6.9 of the GRLEP is a jurisdictional precondition to the power to grant development consent. In circumstances where a site does not presently have access to the requisite essential services, there will need to be evidence before the consent authority that “adequate arrangements have been made to make them available when required.”  Where for instance a development site is landlocked, evidence of negotiations for the provision of an easement or of an application having been made to the Court for that easement, will not be sufficient to satisfy the pre-condition of a clause that is drafted in similar terms to clause 6.9 based on Justice Robson’s analysis in Eskander.

Sole director of developer company fined more than $110,000 for failing to comply with remediation order

Environment Protection Authority v Hughes [2024] NSWLEC 91 before Pepper J (27 August 2024). Access the case here.

Hughes (the Respondent) was the sole director of Thomas Paul Constructions Pty Ltd (TPC), a company that purchased land for the purpose of developing and constructing houses. TPC owned a block of bushland about 23km out from Muswellbrook, NSW. From October 2013 to December 2014, Hughes directed trucks loaded with building and demolition waste to TBC’s block and instructed them to unload the waste into pits, which were then covered with soil. The volume of buried waste was stated to be no less than 4,950 tonnes or 45000m3 of waste.

In 2019, the Environmental Protection Authority (EPA) brought proceedings against Hughes and on 31 July 2019, the Court made orders against him including that he remediate the premises under s 245 of the Protection of the Environment Operations Act 1997 (POEO Act) by removing the waste and making good the environmental damage caused by the offences by 31 March 2020 (Remediation Order).

Between early March 2020 and November 2023, Hughes intermittently did work required by the Remediation Order. Twice during this period, Hughes requested to extend the deadline for the Remediation Order. The Order was amended twice, and the final amendment set a deadline of 31 March 2023. By 31 March 2023, not all of the waste had been removed meaning the Remediation Order had not been complied with.

The EPA brought further proceedings against Hughes under s 251 of the POEO Act, which creates an offence for failing to comply with an order made in connection with an offence under the POEO Act. Hughes entered a plea of guilty in these proceedings.

Even though he had complied with the Remediation Order by the time of these further proceedings, in sentencing Hughes the Court found that Hughes’ offence was in the mid-range of objective seriousness for the following reasons:

• his actions were contrary to the objects of the POEO Act
• there is a daily penalty for the offence, indicating that Parliament considers the offence to be serious
• Hughes’ state of mind showed awareness of his obligations and deliberate commission of the offence, including by diverting resources away from complying with the order
• the offence was committed for financial gain
• the offence caused actual and potential environmental harm (although this harm no longer existed due to Hughes’ eventual compliance)
• asbestos was present in the environment
• Hughes could foresee the harm
• there were practical measures Hughes could have taken to prevent the harm, and he had the resources to do so, and
• Hughes had complete control over the commission of the offence.

The Court also considered the following subjective circumstances:

• Hughes has expressed contrition and genuine remorse
• he entered into an early plea
• he assisted the EPA in the prosecution
• Hughes’ two prior convictions were given limited weight because they related to these proceedings, and
• although no findings on Hughes’ character were made, the Court found it was unlikely that Hughes would reoffend.

Finally, the Court considered deterrence, denunciation and retribution, consistency in sentencing, costs and Hughes’ capacity to pay a fine.

The Court imposed a monetary penalty of $150,000 for Hughes’ contravention of s 251 of the POEO Act, reduced to $112,500 on account of the early guilty plea. Hughes was also ordered to pay professional costs of $81,600 to the EPA and publish a notice about the matter in the Daily Telegraph and the Newcastle Herald, at his expense.

In addition, the Court made an order for moiety, which meant that half of the $112,500 fine paid by Hughes went to the EPA. The Court found this appropriate because the professional costs order would not fully compensate the EPA, and the EPA did not otherwise seek reimbursement for investigation expenses.

NSW Civil and Administrative Tribunal

Council ordered to disclose legal advice after Court finds Council’s conduct was inconsistent with maintaining confidentiality

Social Justice Advocates of the Sapphire Coast Incorporated v Bega Valley Shire Council [2024] NSWCATAD 279 by Senior Member Robinson (19 September 2024). Access the case here.

The Applicant sought administrative review of the decision of Bega Valley Shire Council (Council) to refuse access to a document containing legal advice (the Advice) provided to (and held by) the Council. The Advice was about moveable dwellings used as temporary accommodation for people who are homeless.

Council refused the Applicant’s request under s 58 of the Government Information (Public Access) Act 2009 (GIPA Act) on the basis that the public interest considerations against disclosure outweighed the public interest considerations in favour of disclosure. In the proceedings, Council relied on s 14 and cl 5 of Schedule 1 of the GIPA Act arguing that legal professional privilege (LPP) applied to the Advice because the dominant purpose of the creation of the document was for a lawyer to provide legal advice. The Applicant contended that the Advice should be disclosed as LPP had been waived by the conduct of the Council.

It is conclusively presumed that there is an overwhelming public interest against disclosure of information that would be privileged from production in legal proceedings on the grounds of LPP, unless privilege has been waived (s 14(1) and Schedule 1, cl 5 of the GIPA Act).

Senior Member Robinson was satisfied that the Council established two of the three essential elements of LPP, namely that a client and lawyer relationship existed, and that the Advice was prepared for the dominant purpose of providing legal advice. However, the Senior Member was not satisfied of the third essential element, that is, that the Advice was intended to be confidential in nature, for the following reasons:

• the document contained no confidential markings, and
• the evidence of the Council officer asserting that confidentiality had been maintained was based on her review of the Council file and did not demonstrate actual knowledge that confidentiality had been maintained.

Further, and in the alternative, the Senior Member determined that the conduct of the Council caused LPP over the Advice to be lost for the following reasons:

• Council described the Advice as being confidential on the basis it was ‘commercial in confidence’ relying on s 10A(2)(d) of the Local Government Act 1993 (LG Act) (instead of relying on s 10A(2)(G) of the LG Act which relates to LPP), and
• the Council meeting paper effectively disclosed the contents of the Advice (consistent with the decision in Switchcorp Pty Ltd v Multiemedia Ltd [2005] VSC 425).

Having determined that LPP did not apply to the Advice on two grounds, the Senior Member then considered the public interest test, which involves a two-step process of weighing the case against disclosure with the case in favour of disclosure.

The Council relied on clauses 1(d)-(f) and 3(a) of the Table to s 14 of the GIPA Act and argued that disclosure of the Advice would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, prejudice a deliberative process of government or agency, and prejudice current or future court proceedings. The Senior Member was not satisfied that any of those public interest considerations against disclosure applied and there was no evidence of current or likely court proceedings about the matter.

The Court held that the Council (which bears the onus) had failed to establish that the public interest considerations against the disclosure of the Advice, on balance, outweighed the public interest considerations in favour of disclosure, and an order was made that the Advice be disclosed to the Applicant.

• On 15 August 2024, the Biodiversity Conservation Amendment (Biodiversity Offsets Scheme) Bill 2024 (BC Amendment Bill) was introduced to Parliament and is currently before the Legislative Council. The BC Amendment Bill proposes amendments to the Biodiversity Conservation Act 2016, which could result in a number of changes to the Biodiversity Offsets Scheme (BOS), including the following:
  • the BOS is to transition to “net positive biodiversity outcomes”
  • the avoid, minimise and offset hierarchy is defined and stated to be the “key principle” of the BOS
  • a proponent can only make a payment to the Biodiversity Conservation Fund as an alternative to retiring credits in certain circumstances, but they can instead undertake “prescribed conservation measures”
  • biodiversity development assessment reports (BDAR) and biodiversity certification assessment reports are to assess the “genuine measures” a development proponent has taken (or will take) to avoid, minimise and offset biodiversity impacts
  • the Environment Agency Head (EAH) can issue written directions on accredited assessors if it is satisfied, they are not complying with the accreditation scheme, which can impact on the certification or submission of a biodiversity assessment report
  • the EAH can amend the first amount to be paid towards the Total Fund Deposit if it considers that the original amount is “inappropriate”
  • the Minister can make exceptions to the requirement of a BDAR (for instance, if it is required to support a DA in connection with a natural disaster)
  • the Minister could increase the number of biodiversity credits to be retired under State Significant Development or State Significant Infrastructure applications, and
  • additional public registers are to be kept and maintained by the EAH, including a register of measures to avoid and minimise biodiversity impacts that are contained in BDARs.

Please contact us if you would like more information about the total suite of amendments proposed under this Bill.

• On 1 October 2024, updates to the subordinate legislation under the Native Title Act 1993 (Cth) (NT Act) came into force. The full set of changes is summarised by the National Native Title Tribunal here. The changes are technical in nature and aimed at streamlining and assisting practitioners, the Tribunal and the Federal Court by updating forms and processes.

• Changes that may interest clients involved in native title matters in NSW include:
  • Changes to the map requirements for Indigenous Land Use Agreements (ILUAs) to remove requirements for geographic coordinates. Maps now need only show the boundaries and written description of the application area that enables the boundaries of the area to be identified as well as any areas that are not included; see section 6 of the Native Title (Indigenous Land Use Agreements) Regulations 2024 (Cth).
  • Allowing notices under the NT Act to be delivered electronically if the recipients elect to receive them that way; see s 8(3) of the Native Title (Notices) Determination 2024 (Cth).

• Since our last edition of In The Zone, progress has been made on Bills introduced by the Commonwealth government as part of its “Nature Positive Plan.” The Nature Positive (Environment Protection Bill) 2024 (which establishes a Commonwealth Environment Protection Authority), the Nature Positive (Environment Information Australia) Bill 2024 (which establishes the Head of Environment Information Australia and aims to improve the availability and accessibility of environmental data and information) and the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 (which provides transitional provisions and amends the Environment Protection and Biodiversity Conservation Act 1999 to incorporate the previous Bills) all passed the House of Representatives on 4 July 2024. The Bills were introduced to the Senate on 12 August 2024, and a second reading was moved at this time.

  We will continue to report on the progress of the above Bills, and on the introduction of any further Bills, in our next edition.

• The Albanese Government set up a High Speed Rail Authority (the Authority) in 2022, which has since commissioned eights studies, including a business case for a Sydney-Newcastle line. On 26 July 2024, the Environmental Planning and Assessment Amendment (High Speed Rail Authority) Regulation 2024 commenced, prescribing the Authority as a public authority for the purposes of the Environmental Planning and Assessment Act 1979 (NSW). Sparke Helmore will continue to monitor news from the Authority and the practical ramifications of its designation as a public authority.

• The Australian Bureau of Statistics (in partnership with the Commonwealth Department of Climate Change, Energy, the Environment and Water (DCCEEW) and CSIRO) will release a new National Ecosystem Accounts in 2025 that will measure and value Australia’s ecosystems to deliver environmental information for decision-makers and provide a platform for feedback on utility and future enhancements. Read more here.

• The NSW Government in partnership with the Rural Fire Service has developed a Bush Fire Prone Land Package to ensure that bush fire risk is considered in strategic land use planning in NSW. The consultation period has now closed but you can view the exhibition documents on the Department’s website here.

• The Climate Change Considerations chapter of the Australian Rainfall and Runoff: A Guide to Flood Estimation has been updated by the Commonwealth DCCEEW and Engineers Australia. Workshops about the non-mandatory guidance are being held for local government, industry and regulators. Find out more or register your interest here.

• The Australian Government has released its National Hydrogen Strategy 2024, with a focus on accelerating clean hydrogen industry growth. Read more about the Strategy here.