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.
Background
- The Independent Planning Commission (IPC) granted consent to Bowdens Silver Pty Ltd (Bowdens) for an open cut silver, lead, and zinc mine, 2km from the village of Lue in Central West NSW.
- The development was State significant development for the purposes of the Act, meaning the proponent must prepare an environmental impact statement (EIS) and the consent authority is the IPC of the Minister for Planning (as opposed to the relevant council).
- The EIS submitted by the proponent stated that whilst an external electrical power supply was required for the mine, the transmission line was not part of the proposed development for which consent was sought and would be subject to a separate application under Part 5 of the Act. Bowdens submitted that this was because the precise alignment of the transmission line was still under discussion with landowners and details were confidential.
- The IPC granted consent on the basis that the electricity transmission line would be the subject of a later assessment. The IPC did not consider the impacts of the transmission line as part of its determination and did not refer to the transmission line in its statement of reasons for the decision.
- Bingman Catchment Landcare Group Incorporated (Bingman Landcare Group) made an application for judicial review of the IPC’s decision, on the basis that the IPC had failed to consider a mandatory relevant consideration – being the impacts of the transmission line.
Decision at first instance
At first instance, the Land and Environment Court (Duggan J) held:
- The transmission line was not a part of a “single proposed development” in the sense contemplated by section 4.38 of the Act and therefore the environmental impact of the transmission line was not a mandatory consideration.
- Because the route for the transmission line had not yet been determined, the potential impacts of its construction could not be determined, and therefore did not need to be taken into consideration as “likely impacts” of the development under section 4.15 of the Act.
Findings of Court of Appeal
The NSW Court of Appeal disagreed with the first instance decision.
The majority held:
- that the transmission line was part of a single proposed development that was State significant development (for the purposes of s4.38(4)) and that the likely impacts of that transmission line were a mandatory consideration under section 4.15(1)(b) of the Act.
- the IPC had failed to consider the likely impacts of the transmission line, as the evidence suggested that the IPC accepted the applicant’s statements that the transmission line would be assessed under Part 5 of the Act.
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).
- Hoxton Park concerned a development application for a school. Access to the proposed school would be by a bridge on land owned by the Council that did not require development consent under Part 4 of the EP&A Act but would require environmental assessment under Part 5. The location of the bridge was known in that instance. Basten JA upheld the primary judge’s decision that the consent was invalid on the basis that the consent authority failed to consider a mandatory consideration being the impacts of the bridge.
- Mullaley concerned an application to develop a new coal seam gas field and associated infrastructure at Narrabri. One of the grounds of challenge to the IPC’s grant of consent was that it failed to consider the likely impacts of a pipeline that would be required to carry the gas to market. Preston CJ rejected the challenge, finding that as the nature and route of a pipeline was unknown there was no identifiable and certain other development with off-site impacts to be assessed.
- Palm Lake concerned an expansion of a seniors housing development for which consent had been granted by a Commissioner of the Land and Environment Court subject to a deferred commencement condition in relation to road, civil and infrastructure works in a road reserve. The Commissioner had found that the road works were feasible and certain. Preston CJ held that the likely impacts of such works were a mandatory consideration in determining to grant development consent that could not be deferred.
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.”
Potential consequences for applicants
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.
