The role of a Council as a determining authority under the Environmental Planning and Assessment Act

In Natural Grass at Norman Griffiths Inc v Ku-ring-gai Council [2023] NSWLEC 84, the Land and Environment Court (LEC) has examined the role of a Council as a determining authority in assessing the environmental impacts of the redevelopment of a Council owned park (Activity) pursuant to Part 5 of the Environmental Planning and Assessment Act (EPA Act).

The Activity in this case comprised of the removal of existing natural grass and construction of a synthetic grass playing field, a stormwater mitigation system and associated works including landscaping, lighting, seating, pathways, and an electronic scoreboard.

Council considered two Reviews of Environmental Factors (REFs) in February 2023 and June 2023, as part of its ongoing review of the environmental impacts of the proposed development, however the Applicant only proceeded with its challenge to the June 2023 REF.

Both REFs referred to and annexed a range of reports and plans by experts including reports about:

• stormwater management
• arboricultural impacts
• geotechnical issues
• contamination
• heritage and ecological impacts
• bushfire, and
• flora and fauna impacts.

Proceedings were commenced by Summons filed on 30 June 2023. The Summons raised six grounds challenging both the Council’s consideration of the February REF and the June REF. The hearing of the matter was expedited as the construction of the park was ongoing and a delay in the Court’s decision would most likely delay the completion of the development and result in financial loss to the Council.

In this case note we focus on the Applicant’s “failure to inquire” ground of challenge and the Court’s consideration of this ground.

Failure to inquire

The Applicant asserted that the Council breached a broadly expressed duty under s 5.5 of the EPA Act, to inquire into the environmental impacts of the Activity. The Applicant argued that the duty imposed by s 5.5 to “examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment” imposed a duty upon the determining authority to inquire.

The Applicant claimed that the Council breached that duty by failing to make the further inquiries to enable the assessment to be undertaken to the fullest extent reasonably possible.

The Applicant contended that the Council had not complied with its Part 5 duty to inquire as it should have undertaken:

1. a potential pollutant load assessment associated with the synthetic grass playing field and associated downstream water quality monitoring
2. a flood study to understand the flood impacts on the area and whether the stormwater detention proposed as part of the Activity would function in the manner intended, and
3. a further investigation to understand where the overland stormwater flow path would be located, and the investigation of the impact of the overland flow path upon the adjacent Sydney Turpentine Ironbark Forest, a critically endangered ecological community.

The Applicant contended that whilst the Council had before it as an attachment to the REF a flood report prepared by Optimal (the Optimal Report), the Council was not entitled to take that report at face value as:

1. The Optimal Report addressed an issue that was critical to Council’s understanding as to how the environment would be affected by the proposal.
2. Dr Martens’ evidence (for the Applicant) was that the modelling adopted in the Optimal Report was incorrect.  There was a clear dispute between Dr Martens, and the Council’s expert, Mr Bewsher, as to the effectiveness of the on-site detention system (OSD system).
3. The Optimal Report schematically indicated the location of the overland stormwater flow path without identifying the works that would be necessary to construct it.

Findings of her Honour

The nature of the judicial review meant that the Court was tasked with determining whether the decision under consideration was legally made not whether the Court, if tasked with making that decision for itself, would arrive at the same conclusion. In such a case the Court cannot stray into a consideration of the merits of the Council’s decision as opposed to reviewing the legal adequacy of the decision made. This led her Honour to reject most of the expert evidence led by the Applicant.

After considering all of the circumstances and the June REF, the Court found that the Council was entitled to rely on the Optimal Report without the need for further expert evidence as:

1. The Optimal Report plainly analysed the existing and proposed stormwater systems at the park.
2. The Optimal Report on its face was undertaken by a person with appropriate qualifications.
3. The opinions expressed therein were not qualified in terms of reliability. The assessment undertaken related to both the capture of upstream stormwater and flood flows in both low probability and high probability events.
4. The Optimal Report considered the capacity of the OSD system as proposed to accommodate each of the relevant probability events. It determined that the proposed system was capable of operating in the manner and to the specifications it was designed.

Her Honour found that there was nothing on the face of the Optimal Report that would cause a decision-maker to conclude that the opinions expressed therein were not reliable or not properly formed. In those circumstances, the suggestion that the Council was not entitled to take “at face value” the terms of the Optimal Report had no foundation.

Her Honour found that the mere fact that the subject matter was important does not of itself give rise to a need to obtain, in effect, a second or third opinion of the adequacy of the first opinion.

The ecological report referred to in the REF had considered the flooding and stormwater component of the Activity. This opinion, unqualified, does not indicate a need to obtain further ecological advice as to the impact upon the Sydney Turpentine Ironbark Forest of the overland flow path.

As to the potential for microplastics pollution, the REF acknowledged that synthetic grass has the capacity to impact upon the environment by the transportation of microplastics into the environment. In light of that understanding, the REF acknowledged that the Activity had, as one of its design goals, the minimisation of microplastic pollution and consequently incorporated a range of mitigation measures.

Her Honour rejected all grounds of the challenge and dismissed the Summons.

Key takeaways

This decision and the cases referred to therein provide the following useful summary on the law pertaining to Part 5 assessments of an activity by a determining authority:

• The task of a determining authority considering the environmental impacts of a Part 5 activity is an important one, which requires a determining authority to examine and take into account to the fullest extent possible, all matters affecting or likely to affect the environment by reason of that activity. 
• The obligation imposes a positive obligation to conduct a proper examination. It requires more than merely adverting to a relevant matter and this would be regarded as paying no more than ‘lip service’ to the obligation: Willoughby City Council v Minister Administering National Parks and Wildlife Act (1992) 78 LGERA 19 at 29, per Stein J)
• The phrase “to the fullest extent possible” sets a high standard, but one that is tempered by reasonableness, so that the phrase is to be read “as if the word ‘reasonably’ was inserted before ‘possible’”: Guthega Development Pty Ltd v Minister Administering the National Parks and Wildlife Act (NSW) 1974 at 366; 415.
•  The duty imposed by s 5.5(1) is a continuing one. A matter affecting or likely to effect the environment that first came to the attention of a determining authority after it had commenced to carry out the activity could not be ignored on that account and should form part of the continuing obligation: Transport Action Group Against Motorways Inc v Roads and Traffic Authority at [70].       
• The “environment” effected or likely to be effected by the carrying out of the activity is not only the site on which the activity is to be carried out but also “the geographic location in which it is to be carried out and the area of which it is physically a part”: Kivi v Forestry Commission (NSW) (1982) 47 LGRA 38 at 47.
• In terms of the duty to inquire the extent and scope of the consideration will vary depending upon the activity as proposed and the likely environmental impacts of undertaking such activity.
• While a determining authority can consider and accept expert reports and information provided on face value, great care should be taken in considering reports and information especially where the opinion expressed, or the information provided is qualified or appears on its face to be unreliable or incomplete.

You can view the full decision here.

If you have any questions about this decision or any other matter, please contact Catherine Morton Chris Campbell or Carlo Zoppo.