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Global rules on foreign direct investment (FDI)
Cross-border acquisitions and investments increasingly trigger foreign direct investment (FDI) screening requirements.
Australia | Publication | August 2024
In the recent decision in Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 (Bingman), the NSW Court of Appeal held that a development consent for a mine was void and of no effect, This was 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 (Act) but not included in the development application.
As it is not uncommon for development applications for renewable energy projects to be lodged before there is certainty as to the nature of the electricity reticulation infrastructure, the decision in Bingman is significant for the renewable energy sector.
The decision is also relevant more broadly to State significant development that may have fundamental elements on adjoining or nearby land.
At first instance, the Land and Environment Court (Duggan J) held:
The NSW Court of Appeal disagreed with the first instance decision.
The majority held:
In reaching its decision, the Court of Appeal considered three decisions regarding whether impacts are “likely” and therefore required to be assessed under section 4.15(1)(b) – Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638 (Hoxton Park), Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd (2021) 252 LGERA 221 (Mullaley) and Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41 (Palm Lake).
The Court of Appeal has left for another day the argument that where off-site impacts are sufficiently uncertain, their impacts may not need to be assessed under section 4.15(1)(b). Although White JA did not make a finding that Mullaley was incorrectly decided, His Honour stated at [95] “I should not be taken as necessarily accepting the assumption in the primary judge’s reasons that if the likely off-site impacts of the development… could not be determined, they can be ignored.”
The decision means that developers may not be able to avoid or defer the assessment of the likely impacts of a part of a State significant development by excluding it from the development application or relying on a separate approval process under Part 5 of the Act.
If State significant development requires infrastructure components (even if the precise details are still to be finalised) proponents may need to address whether those components form part of the “single proposed development” and their impacts are to be assessed under section 4.15(1)(b).
Depending on the outcome of this analysis, this may impact (or limit) the planning approval pathway for those infrastructure components.
Developers should provide sufficient information to the consent authority to enable it to consider the likely impacts of the proposed development, including off-site infrastructure, and consider the extent to which that infrastructure is required to operate the development.
Should you require further information on the Bingman decision or advice on its application to your project, our Environment & Planning team are able to assist.
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