State significant development applications often rely on off site works (such as road works or energy infrastructure). Recent amendments to the Environmental Planning and Assessment Act enable the Planning Secretary to exclude some offsite development, so that it does not form part of the proposal.

The amendments respond to the Court of Appeal decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 which considered likely impacts of off site works.

Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024.

The Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024 makes the following amendments:

1. Amends s4.38 EP&A Act to specifically provide the Planning Secretary with the power to determine that particular development does not form part of a single proposed State significant development, and
2. Declares as valid any State significant development consent which was granted which may have failed to have had regard to aspects of a single proposed development.

At the time of writing the Bill has passed and is awaiting assent. It will commence upon assent.

The amendments respond to the Court of Appeal decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (Bingman CoA), in which the Court of Appeal found a State significant consent was void and of no effect. The decision focusses on whether the likely impacts of off site development, necessary for a State significant application, must be considered in the determination of a single proposed State significant development.

While the Act amendments give the Planning Secretary power to determine that some aspect of a State significant development is not part of the ‘single proposed development’, whether the likely impact of the off site works is also not required to be assessed (contrary to the Bingman CoA decision discussed further below) is a question not squarely addressed by the amendment.

Likely impacts

Pursuant to s4.15(1)(b) of the Environmental Planning and Assessment Act 1979 (EP&A Act), it is a mandatory consideration to take into account “the likely impacts” of development. In certain circumstances this may include direct or on-site impacts, and indirect or off-site impacts, of a development: Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited [2024] NSWLEC 17 (Bingman LEC) at [39].

Understanding the nature of the likely impacts requires an evaluative judgement to be undertaken by the decision maker, “which will often not involve any bright-line boundary.” Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 (Hoxton Park) at [44] to [46].

A number of cases provide guidance on this evaluative exercise, and Bingman CoA advances this further:

• The likely impact being considered is not remote, that is has no real chance or possibility of occurring: Hoxton at [46].
• Where development other than that for which consent is sought is the source of this impact, does this other development have a real and sufficient link with the proposed development, so as to be inextricably involved with the proposed development: Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake) at [6].
• There can be no real chance of occurring or sufficient link, where the other development cannot be identified with sufficient certainty as to what, and where would be, the other development to be able to consider the likely impacts: Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 (Mullaley) at [145] to [149].
• Where the other development is an integral or component part of the proposed state significant development, there will be a real chance and sufficient link to the likely impacts of that part that are required to be taken into consideration as part of a single proposed development pursuant to s4.38(4): Bingman CoA at [54] to [56] and [94].

Bingman case background

Bowdens Silver Pty Ltd (Bowdens) made a State significant development application for an open cut mine, which required electrical power supply from an external source (SSDA). The electrical power supply would require the construction of up to 13km of new electricity lines spanning multiple parcels of land (Supply Line).

The SSDA was supported by an environmental impact statement (EIS) which confirmed that the Supply Line was not part of the SSDA, and that approval for it would be sought under Part 5 of the EP&A Act. One of the reasons provided in the EIS for this approach was that the precise alignment of the Supply Line had not been determined.

In its development assessment report in support of the grant of development consent, the Independent Planning Commission (IPC) accepted this approach, and apart from making reference to submissions from objectors raising concerns with the impacts arising, gave no further consideration to this, confirming that no consent was granted to the Supply Line.

Bingman Catchment Landcare Group Inc (Bingman), sought judicial review on the following grounds before Justice Duggan in Bingman LEC:

1. Was the construction of the Supply Line part of a single proposed state significant development for the purposes of s4.38(4) of the EP&A Act?
2. Were the impacts of the Supply Line “off-site impacts” required to be considered under s4.15(1)(b) of the EP&A Act?

Her Honour ultimately dismissed the appeal finding that:

1. Section 4.38 is directed to the development the subject of the application, “The statutory scheme does not dictate that every part of a State significant development project must be comprised in a single assessment.”: Bingman LEC at [28] to [32].
2. Having regard to the authorities, identifying the location of the Supply Line was critical to determining the possible impacts; “The lack of certainty of the route at the time of the determination…rendered the impact….so remote as to be incapable of being relevantly determined as a ‘likely impact’…and therefore not a mandatory consideration.”: Bingman LEC at [44] to [49] applying Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110 (Mullaley).

The Court of Appeal Decision

Bingman appealed the Bingman LEC decision to the Court of Appeal (CoA). The CoA was unanimous in its decision to overturn the Bingman LEC decision, the majority made orders declaring that the SSDA consent was void and of no effect, and restrained Bowden from acting upon it, finding that the failure of the IPC to take into account a mandatory consideration was not merely a technical breach: Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (Bingman CoA) at [114] to [118].

In relation to the grounds considered in Bingman LEC, the CoA said as follows.

Single proposed development

The CoA formed the view that the Supply Line did form part of a single proposed development for the purpose of s4.38(4), because on the facts it was accepted that it was an integral component of the SSDA: Bingman CoA at [55]. However, because Bowden specifically excluded the Supply Line from its SSDA, the IPC was not required to assess the Supply Line as the development for which consent was sought.

While the CoA found the judge in Bingman LEC to have been in error in her consideration of the application of s4.38(4), it agreed that it was not necessary to seek consent for all aspects of the same development as a single proposed development, finding at [61] to [62] that:

“…The purpose of s4.38(4) is to require that the [consent authority of state significant development] be the consent authority for development that would not otherwise require development consent…if it is part of a single development that does require such consent…s4.38(4) does not itself (that is, without regard to s4.15(1)(b)) require consideration of the off-site environmental effects…That is because there can be more than one development application for a single development [authorities cited]”

Likely impacts

The CoA found the IPC erred in not considering the impacts of the Supply Line, being integral to the SSDA, notwithstanding that Bowden had not provided the necessary information to assess its impacts. The CoA ultimately concluded at [94] that, “Their failure to address s4.38(4) led to their failure to address 4.15(1)(b) in relation to the likely impacts of the [Supply Line].”

The CoA found at [71] that:

“Because the [Supply Line] was not the subject of the development application, the likely environmental impacts of the transmission line were not directly caught by s 4.15(1)(b). But because the proposed mine (which was the subject of the development application) will require electrical power to be delivered through an off-site [Supply Line], the likely impacts of that transmission line were a mandatory consideration for the IPC.”

However, on the facts, the CoA found that the IPC did not address the likely impacts of the Supply Line, and there was no evidence that it did not do so because it considered the impacts to be too remote because the alignment remained undetermined; at [109] finding that, “…the evidence did not establish that it was not possible to identify the likely impacts of the [Supply Line]…”

Rather, the CoA found at [76] that the impacts were not considered because, “…[Bowdens] contended, and the [IPC accepted] that the impacts of the [Supply Line] were irrelevant to the [SSDA], because the [Supply Line] was not the subject of the [SSDA] and would be subject to a separate application for approval under [Part 5 of the EP&A Act].”

We note that even if it were, the CoA found that a Part 5 approval could not have been obtained for the Supply Line and so the IPC was misguided in accepting this approach: at [33] to [35], and [48] to [51].

Key Takeaways

• A development application does not need to seek consent for every aspect of a development; more than one application can be made for different aspects of a single proposed development.
• However, where the other aspects are integral or component parts to the development for which consent is sought, consideration of the likely impacts arising from the integral parts are mandatory; they cannot be deferred for assessment in some future approval.
• Where impacts from these integral or component parts have not been considered, this is not merely a technical breach of the obligation, and may result in a declaration of invalidity of the consent, which cannot be cured by the Court.
• While the Act amendments give the Planning Secretary power to determine that some aspect of a State significant development is not part of the ‘single proposed development’, whether the likely impact of the off site works is also not required to be assessed is a question not squarely addressed by the amendment. Whether this is the legal effect of the Act amendment remains to be seen.