Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd

1. [1]

   WHITE JA: This is an appeal under s 58 of the Land and Environment Court Act 1979 (NSW) (“the LEC Act”) from a judgment of the Land and Environment Court (Duggan J) (Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited [2024] NSWLEC 17). The primary judge dismissed the appellant’s application for judicial review of a decision of the Independent Planning Commission (“IPC”) granting development consent, subject to conditions, for an open cut silver, lead and zinc mine located 2km north of the village of Lue in the Mid-Western Regional Council area.

2. [2]

   The development for which approval was granted is State significant development for the purposes of Div 4.7 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”). This is because it is development for the purpose of mining that has a capital investment value of more than $30 million (State Environmental Planning Policy (State and Regional Development) 2011 (NSW), Sch 1, cl 5). The IPC is the relevant consent authority for State significant development (s 4.5(a) of the EP&A Act). It is the second respondent on the appeal. It entered a submitting appearance in the court below and on appeal. In these reasons I refer to the first respondent, Bowdens Silver Pty Ltd, as the respondent.

3. [3]

   The appellant’s challenge to the validity of the development consent focuses on the IPC’s asserted failure to consider the environmental impact of an electricity transmission line that will be required to supply power to the mine.

4. [4]

   The respondent lodged a development application for the mine on 14 May 2020, together with an Environmental Impact Statement (“EIS”). The development application was not included in the appeal books because it was common ground that it did not include an application for approval of a new transmission line that would supply electricity to the mine. The respondent’s position was that that development would be separate from, although related to, the development of the mine that was the subject of the development application.

5. [5]

   The EIS stated that:

6. [6]

   The EIS also stated that:

7. [7]

   Subsequently the respondent proposed a 66kV power transmission line rather than a 132kV line. The primary judge noted that the parties agreed that it could be reasonably inferred that the IPC proceeded to determine the application on the basis that the 66kV transmission line would be the subject of separate assessment under Pt 5 of the EP&A Act, and accordingly was not assessed in the IPC’s determination that the development application for the mine should be approved (at [20]).

8. [8]

   This was the basis for the appellant’s challenge to the development consent.

9. [9]

   Section 4.38 of the EP&A Act relevantly provides:

10. [10]

    Section 4.1(1) provides:

11. [11]

    An environmental planning instrument includes a State environmental planning policy (“SEPP”) (ss 1.4, 3.29).

12. [12]

    It was common ground that, subject to s 4.38(4), pursuant to either or both of ss 2.44 and 2.46(1) of the State Environmental Planning Policy (Transport and Infrastructure) 2021 (NSW) (“the Infrastructure SEPP”), the construction and operation of the transmission line was to be taken to be development that could be carried out without development consent under Pt 4 of the EP&A Act.

13. [13]

    Omitting provisions applicable to national parks, s 2.44 of the “Infrastructure SEPP” relevantly provides:

14. [14]

    Section 2.46(1) of the Infrastructure SEPP relevantly provides:

15. [15]

    Ordinarily, exempt development does not require development consent under Pt 4 (EP&A Act s 1.6(1)(a)).

16. [16]

    The appellant contends that the transmission line is part of a single proposed development and s 4.38(4) applies.

17. [17]

    For the reasons which follow, I agree.

18. [18]

    The appellant says that this has two consequences. First, development consent for the transmission line must be obtained from the IPC under Pt 4. This is common ground, if s 4.38(4) applies. The respondent contends that, even if IPC’s consent to the transmission line is required, that consent can be obtained later.

19. [19]

    Secondly, the appellant contends that pursuant to s 4.38(4), in considering the development application lodged on 14 May 2020 (which did not include an application for the transmission line), the IPC was required to treat the unidentified proposed power line as a subject of the development application and assess its environmental impacts in determining the development application.

20. [20]

    For the reasons which follow, I do not accept that this is a consequence of s 4.38(4).

21. [21]

    Section 4.15(1) relevantly provides:

22. [22]

    The appellant submits that even if the proposed transmission line is not part of the “development the subject matter of the development application”, nonetheless, because the mine itself, which was the subject of the development application, requires power that will be transmitted through an external power line, the IPC was required by s 4.15(1)(b) to consider the likely environmental impacts of such a power line in considering the development application for the mine.

23. [23]

    The appellant relies on this Court’s decision in Hoxton Park Residents Action Group Inc v Liverpool City Council (2011) 81 NSWLR 638; [2011] NSWCA 349 (“Hoxton Park”) at [43]-[56]. The respondent says that Hoxton Park can be distinguished on its facts and that this case is instead analogous to the decision of Preston CJ of LEC in Mullaley Gas and Pipeline Accord Inc v Santos NSW (Eastern) Pty Ltd [2021] NSWLEC 110; (2021) 252 LGERA 221 (“Mullaley”) at [145]-[149].

24. [24]

    For the reasons which follow, I have concluded that the respondent could not exclude the IPC’s consideration of the off-site impacts of the mine by excluding information as to the likely or possible routes of a transmission line from its development application. I have concluded that the IPC erred in law in not considering such impacts and that error cannot be excused because the respondent chose not to provide the necessary information for the impacts to be assessed.

25. [25]

    Accordingly, I propose that the appeal be allowed.

Background Facts

1. [26]

   For the mine to operate, it will require an external electrical power supply. In its May 2020 EIS, the respondent stated:

2. [27]

   Appendix 9 stated that, in consultation with two NSW Transmission Network Service Providers, namely TransGrid and Endeavour Energy, at least seven electrical supply options had been identified for the Project. It was also again stated:

3. [28]

   The seven identified options included two that might be provided by Endeavour Energy, one of which identified a possible connection point at Breakfast Creek from an existing transmission line to the mine site, a distance of about 13km in direct line to the mine site.

4. [29]

   In a report prepared in June 2021 in response to submissions on the respondent’s EIS, it was stated on behalf of the respondent that:

5. [30]

   The submission continued:

6. [31]

   The submission also stated that the precise alignment was not presented as it was still being discussed with landowners and the details were confidential. The submission stated that “a final alignment will be planned and presented in the development application for this infrastructure”.

7. [32]

   These submissions exhibited a degree of confusion. If the proposed transmission line (wherever it would be located) was part of a single proposed development, along with the mine itself, then, pursuant to s 4.38(4), development consent from the IPC would be required for the transmission line. The respondent’s avowed intent was to seek “approval” for the construction and use of the power line under Pt 5 of the EP&A Act, which would be submitted to Endeavour Energy for assessment and determination.

8. [33]

   Except in the case of State significant infrastructure, where the Minister’s approval is required (s 5.14), Pt 5 does not provide a process for “approval” of the power line.

9. [34]

   Part 5 applies to an “activity” which is widely defined, but excludes anything for which development consent under Pt 4 is required and exempt development (s 5.1(1)(g) and (i)). As the proposal was for the supply of electricity to the mine site through a 66kV power line, the development would be exempt development and Pt 5 of the EP&A Act would not apply.

10. [35]

    I will return later in these reasons to the notion of “approval” of the “determining authority” for the purposes of carrying out an activity under Div 5.1.

11. [36]

    Returning to the chronology, in a further report provided by the respondent in March 2022 relating principally to water supply, the respondent provided an Amended Project Description. The document was said to describe the respondent’s plans for the proposed site establishment, construction, operation and rehabilitation of its Project. It was said that the document had been updated following amendment to the Project since the EIS was submitted in May 2020 and was intended to be a working document that would be updated and adapted as the Project proceeded.

12. [37]

    The report again stated that approval to construct the required 66kV power transmission line to the mine site would be sought separately in accordance with Pt 5 of the EP&A Act. The respondent stated:

13. [38]

    It stated that electricity would be supplied via a 66kV transmission line that would terminate at the mine site’s Main Mine Substation, as shown in Figure 2.1 within the report. That figure is reproduced as an annexure to the report of the NSW Department of Planning and Environment (“the Department”) to the IPC referred to below. It shows nothing as to possible off-site locations of the power line.

14. [39]

    In December 2022, the Department provided its State Significant Development Assessment Report to the IPC. It stated:

15. [40]

    In its letter to the Planning Director of the IPC of 13 February 2023, the Department reiterated that the 66kV line was a “component of the project outside the project area [and] does not form part of the development application and will be subject to separate approval under the Environmental Planning and Assessment Act 1979”.

16. [41]

    The Department did not provide any opinion or advice to the IPC as to whether, if the 66kV line were a component of the Project, this had any significance to the operation of s 4.38(4) and, if so, what significance that might have for the IPC’s consideration of the development application.

17. [42]

    In these circumstances, it is hardly surprising that in its statement of reasons for granting development consent, the IPC makes no reference to the proposed 66kV transmission line outside the boundary of the mine site. In the development consent, there is approval for a development layout (Appendix 2) which shows the proposed 66kV power line from the boundary of the mine site to the Main Mine Substation and that same layout is contained in an appendix to IPC’s Statement of Reasons. But the reasons are silent in relation to the possible route or routes of any possible proposed transmission line outside the boundaries of the mine site, or as to any environmental impacts of such a line.

18. [43]

    In its Statement of Reasons, the IPC noted at [31] that the Commission was required by s 4.15(1) of the EP&A Act to take into consideration such of the listed matters as were of relevance to the development subject to the application. The relevant parts of s 4.15(1) have been quoted above.

19. [44]

    The IPC stated that the likely impacts of the application were considered in s 5 of the Statement of Reasons. Section 5 addressed issues of health, air quality, noise during construction and operation, visual and lighting impacts on nearby residences and the Siding Spring Observatory, water resources, traffic and transport, social impacts, economics, biodiversity, rehabilitation and final landform, Aboriginal cultural heritage, historic heritage, hazards and risks, agricultural impacts, and greenhouse gas emissions. Its report did not address any likely impacts of the construction and operation of a transmission power line to the mine.

20. [45]

    The IPC did not say that environmental impacts of a transmission line were not assessed because they were considered to be too remote. It did not refer to the required transmission line at all.

21. [46]

    In giving public notice of its determination, the IPC stated that “the reasons for approval and the conditions are provided in the Planning Secretary’s Assessment Report and the Commission’s Statement of Reasons for Decision. These documents can be found on the Department’s Major Projects website”. I understand it to be common ground that the reference to the “Planning Secretary’s Assessment Report” was to the assessment report published by the Department in December 2022.

22. [47]

    Consistently with that report (relevantly quoted at [39]), I conclude that the IPC did not consider any environmental impact of a transmission line, and did not consider whether any environmental impact of a transmission line was too remote from consideration of the environmental impact of the mine itself. Rather both the Department and the IPC proceeded on the basis of the respondent’s submission that such environmental impacts would be addressed when it sought “approval” for the transmission line under Pt 5.

23. [48]

    That understanding was misguided. First, as a 66kV transmission line was exempt development, no so-called “approval” would be required. Secondly, although it is the respondent that requires the transmission line and would pay for it if the development proceeds, the only “approval” that would be required if Pt 5 did apply would be Endeavour Energy’s approval of the respondent’s request to provide the transmission line.

24. [49]

    Except in the case of the State significant infrastructure for which the Minister’s approval is required (s 5.14), Pt 5 does not require external approvals for the construction or operation of infrastructure. Rather, a “determining authority”, by whom or on whose behalf the activity is to be carried out (s 5.1 definition of “determining authority”) cannot carry out the activity that is likely “to significantly affect” [sic] the environment unless it has obtained and considered an environmental impact statement (s 5.7(1)). Section 5.5(1) requires the determining authority, when considering whether to conduct an activity, to take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity. If Pt 5 applied (which it would not as the activity (ie the construction and operation of the power line) would be exempt development) then Energy Australia would be required to consider the environmental effects of the construction and operation of the transmission line. It would not be required to consider the cumulative environmental effects of both the mine and the transmission line.

25. [50]

    If Pt 5 does not apply by reason of s 4.38(4), then on a subsequent application for development consent for the transmission line, the IPC could require the respondent to surrender its development consent for the mine to consider the cumulative environmental effects of both the mine and the transmission line. But Energy Australia would have no such right.

26. [51]

    The respondent’s submissions to the IPC may have misled the Department and the IPC in a material respect. But that was not a separate ground of review. It was not a ground of review that the IPC took into account irrelevant considerations, that is, considerations it was not entitled to take into account.

Grounds of Review

1. [52]

   The grounds of review set out in the appellant’s summons for judicial review in the Land and Environment Court were:

Ground 1

1. [53]

   Ground 1 of the notice of appeal alleges:

2. [54]

   The “single development” for the purposes of s 4.38(4) is the proposed mine for which development approval was sought.

3. [55]

   Neither in the Land and Environment Court nor in this Court did the respondent dispute that as a matter of fact the external transmission line was integral to the operation of the mine, or, as the Department put it, a component of the project.

4. [56]

   In the May 2020 EIS, it was estimated that of the “capital investment value” of the mine of $246.55 million, $24.4 million would be attributable to the then proposed 132kV power supply line. The indicative construction schedule for the mine included in the respondent’s Submissions Report showed the construction of the 66kV power transmission line as an integer before numerous other construction activities were finalised and before commissioning commenced.

5. [57]

   Rather, the focus of the respondent’s submission and the primary judge’s reasons was on the second aspect of the appellant’s contention (see [18]): that if a powerline transmission were a part of the single development of the mine, the IPC was required to treat it as included within the development for which approval was sought.

6. [58]

   The primary judge found (at [23]) that the 66kV transmission line was not part of a single development to which s 4.38(4) applied. Her Honour said:

7. [59]

   The primary judge considered that the purpose of s 4.38(4) did not go beyond facilitating the determination whether or not development consent should be granted (at [35]).

8. [60]

   The primary judge concluded at [36]:

9. [61]

   The primary judge was in error in concluding that the only purpose of s 4.38(4) was to facilitate the determination of whether development should be granted. If that were its only purpose, s 4.38(4) would be otiose. The purpose of s 4.38(4) is to require that the IPC, as the consent authority under Div 4.7 for State significant development, be the consent authority for development that would not otherwise require development consent under Div 4.7, if it is part of a single development that does require such consent.

10. [62]

    But I agree that s 4.38(4) does not itself (that is, without regard to s 4.15(1)(b)) require consideration of the off-site environmental effects of a proposed transmission line. That is because there can be more than one development application for a single development (AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [229]-[233] (Preston CJ of LEC)).

11. [63]

    If the development consent is otherwise valid, the respondent will be required to make a further application to the IPC for its approval for the transmission line.

12. [64]

    For the above reasons I would uphold ground 1(a) but not ground 1(b) or (c).

13. [65]

    The appellant’s success on ground 1(a) does not resolve the appeal. It could have costs consequences if the appeal were otherwise unsuccessful.

Ground 2

1. [66]

   Ground 2 of the notice of appeal alleges:

2. [67]

   Section 4.15(1) of the EP&A Act has been quoted at [21]. The following features of the provision should be noted. First, it refers to the development “the subject of the development application”. That subject was the mine, not an external power transmission line.

3. [68]

   Secondly, it refers to “such of the following matters as are of relevance”. It may be arguable that if a following matter could not be assessed it was not relevant, or that if the transmission line were to be assessed under Pt 5 and did not require consent under Pt 4, its likely environmental impacts were not relevant.

4. [69]

   Thirdly, the considerations to be taken into account are mandatory considerations (“…a consent authority is to take into consideration…”).

5. [70]

   Fourthly, s 4.15(1)(b) requires the consent authority to take into account “the likely impacts of that development”.

6. [71]

   Because the transmission 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 transmission line, the likely impacts of that transmission line were a mandatory consideration for the IPC.

7. [72]

   The primary judge took a different view. Her Honour considered that because the route for the power line had not been determined, the potential impacts of its construction could not be determined and therefore did not need to be taken into account as “likely impacts” (at [46]-[48]). Her Honour said:

8. [73]

   The primary judge was right in saying that, on the materials presented to the IPC, the likely route of the transmission line could not be determined. But that was because the respondent did not provide any information to the IPC as to the likely or possible route or routes of the transmission lines.

9. [74]

   In the “submission report” of June 2021, RW Corkery & Co Pty Ltd on behalf of the respondent said that the “precise alignment was not presented as it is still being discussed with landowners, and the details are confidential at this time”.

10. [75]

    So far as appears from the appeal papers there was nothing that showed that, as at the date of the Department’s Assessment Report in December 2022, or the date of development consent on 3 April 2023, the alignment of the line was still being discussed with landowners and was still confidential.

11. [76]

    Rather the respondent contended, and the Department and IPC evidently accepted, that the impacts of the transmission line were irrelevant to the development application, because the transmission line was not the subject of the development application and would be subject to a separate application for “approval” under Pt 5.

12. [77]

    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 Pt 4, but would require environmental assessment under Pt 5 (at [3]).

13. [78]

    The leading judgment was given by Basten JA. Giles and Macfarlan JJA agreed with his Honour’s reasons.

14. [79]

    The then relevant provision was s 79C(1)(b) of the EP&A Act which has since been renumbered as s 4.15(1)(b).

15. [80]

    In Hoxton Park, except for his finding that the application challenging the grant of development consent was out of time, the primary judge would have allowed the challenge to the grant of development consent for failing to consider the likely environmental aspects of the bridge (at [3]-[4]).

16. [81]

    This Court held that the challenge was not time-barred and otherwise upheld the primary judge’s conclusion. Basten JA said:

17. [82]

    The appellant accepts that in Hoxton Park the route of the proposed road being assessed under Pt 5 was known (Hoxton Park Residents Action Group Inc v Liverpool Council (No. 3) [2012] NSWLEC 43; (2012) 190 LGERA 119 (“Hoxton Park No. 3”) at [3]).

18. [83]

    The respondent relied on Mullaley. That case concerned an application by Santos to develop a new coal seam gas field and associated infrastructure at Narrabri. The development was State significant development. One of the grounds of challenge to the IPC’s grant of development consent was that the IPC had not considered the likely impacts of a pipeline that would be required to carry the gas to market.

19. [84]

    Preston CJ of LEC accepted that the likely impacts of the development the subject of the development application include direct and indirect off-site impacts of the proposed development (at [140]).

20. [85]

    His Honour rejected the challenge on three grounds. The first two are relevant. The first ground was that there was no “identifiable and certain other development that will cause off-site impacts” (at [146]). This was because the nature and route of a pipeline was unknown. There were options to connect to either of two existing pipelines. The route of either connection was unknown (at [146]).

21. [86]

    His Honour said at [147]:

22. [87]

    The second ground was that “…even if the likely impacts of an identifiable gas transmission pipeline were able to be identified, such impacts of the pipeline do not have a real and sufficient connection to the Project, so that they could be said to be impacts of the Project” (at [148]). His Honour explained this by hypothesising that if the pipeline passed through the habitat of an endangered species at a particular location on its route, the impact on that habitat would be the result of the choice for the route for the pipeline, not the result of construction of the Project (at [148]).

23. [88]

    In Mullaley, no likely route of the pipeline had been identified when development consent for the first stage of the project was given, even in approximate terms. Santos had not decided to which existing pipeline the pipeline from the Narrabri field would be joined.

24. [89]

    In contrast, in Ballina Shire Council v Palm Lake Works Pty Ltd [2020] NSWLEC 41, Preston CJ of LEC upheld an appeal from a Commissioner who granted deferred commencement consent to an expansion of a seniors housing development. The Commissioner failed to consider the likely impacts of necessary road, civil and infrastructure works in a road reserve that would be required to provide safe and efficient traffic movement to the development. Preston CJ of LEC held that the Commissioner misdirected herself by believing that imposing a deferred condition of consent (that there be an environment assessment and later approval of the works proposed in the road reserve) justified her not considering the likely impacts of such works in determining to grant development consent (at [36]). The Commissioner found that the works were feasible and certain and would be constructed within the road reserve (at [33]). Those works had a “real and sufficient link” to and were “inextricably involved” with the proposed development (at [6]).

25. [90]

    Assuming that whether the likely impacts of the future power transmission line can be assessed is a matter for determination by the Court, the respondent submitted that the question was one of fact and degree. It submitted that the primary judge was entitled to conclude that the case was analogous to Mullaley rather than to Hoxton Park or Palm Lake.

26. [91]

    I do not agree.

27. [92]

    The material provided by the respondent to the IPC did not support the primary judge’s finding that the threshold for finding that an impact was “likely” was not met until the route of the transmission line had been determined. There was no evidence that as at the date of development consent the route had not been determined. The respondent did not provide an update of its June 2021 report that “…the final alignment of this powerline [viz from Breakfast Creek] remains subject to agreement with landholders”.

28. [93]

    This statement in June 2021 fell short of saying that the likely route of the powerline had not been determined. No further information was provided later.

29. [94]

    As explained further below in relation to ground 3, neither the Department nor the IPC addressed the question whether the likely impacts of the transmission line could be determined. No doubt this was because they accepted the respondent’s contention that such impacts would be considered later when “approval” for the transmission line was sought from Endeavour Energy. Their failure to address s 4.38(4) led to their failure to address 4.15(1)(b) in relation to the likely impacts of the powerline.

30. [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 the subject of the development application could not be determined, they can be ignored. The appellant challenged the correctness of Mullaley. In the view I take, it is unnecessary to resolve that challenge.

31. [96]

    If it were necessary to decide ground 2, ground 2 should be upheld.

Ground 3

1. [97]

   Ground 3 of the amended notice of appeal alleges:

2. [98]

   It was common ground at trial that it was for the Land and Environment Court to determine whether an impact was a “likely impact” of the development the subject of the development application (ie the mine).

3. [99]

   Neither party drew the primary judge’s attention to this Court’s decision in Ross v Lane [2022] NSWCA 235; (2022) 255 LGERA 136. There Basten AJA, with whose reasons Macfarlan JA agreed, said that the likely impacts of the development the subject of the development application were evaluative matters for the consent authority to address subject to statutory forms of review or appeal (at [94]-[100]) (Basten JA’s analysis was accepted as correct by this Court in El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78; (2023) 256 LGERA 24 at [53]).

4. [100]

   The appellant submitted that assessment of the likely impacts of the development were an objective matter that was appropriately the subject of determination by the Court. As a matter of precedent, as the observations of Basten AJA (with which Macfarlan JA agreed) in Ross v Lane were approved by this Court in El Khouri v Gemaveld, they should be followed in this Court. I do not accept the appellant’s submission that to do so impermissibly requires the reading of words into s 4.15(1)(b) as if that provision provided that the consent authority:

5. [101]

   To the contrary, the fact that the chapeau to s 4.15(1) refers to the consent authority’s consideration of the matters in that sub-section provides textual support for Basten AJA’s analysis.

6. [102]

   The respondent submitted that, although the IPC made no mention of the external transmission line in its Statement of Reasons, it should be inferred from its public notice of its determination that it took into account the matters in the Department’s Assessment Report (at [46] above). It submitted that:

7. [103]

   The difficulty with this submission is that neither the IPC nor the Department did any such thing. Paragraphs [9]-[14] of the respondent’s submissions referred to in para [56] quoted above, go no further than the matters referred to at [29]-[31] and [36]-[42] above.

8. [104]

   Indeed, in its response to the appellant’s summons for judicial review the respondent admitted “…that the Power Line was not the subject of consideration by the Second Respondent [the IPC] in making its decision on 3 April 2023”.

9. [105]

   The respondent submitted that this admission was made in error. I do not agree. The admission was plainly correct.

10. [106]

    For the above reasons, ground 3 should be upheld.

Respondent’s Contention

1. [107]

   Although the respondent did not file a notice of contention, it submitted in the Court below, without objection, that if the IPC’s decision were affected by material jurisdictional error, the Court should make one of the following orders:

2. [108]

   Sections 25B and 25C of the LEC Act provide:

3. [109]

   For the reasons above, I would uphold ground 2 on the basis that the evidence did not establish that it was not possible to identify the likely impacts of the proposed transmission line and would uphold ground 3 on the basis that the IPC failed to consider the likely impacts of the proposed transmission line.

4. [110]

   In Hoxton Park No. 3, Biscoe J declined to make an order under s 25B. His Honour observed at [51]:

5. [111]

   Biscoe J identified the complexities of proceeding under s 25B and 25C at [40]-[46].

6. [112]

   In this case, there has not been a “technical breach” of s 4.15(1) (see Kindimindi Investments Pty Ltd v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 at [21], where Hodgson JA said in relation to s 25B that “The general intention was that technical breaches should be capable of being rectified”).

7. [113]

   As Biscoe J observed (at [37]), this reflected the legislative aim expressed in the Minister’s Second Reading Speech of s 25B (NSW Legislative Assembly, Parliamentary Debates (Hansard), 28 May 1997 at 9459-9460).

8. [114]

   The respondent rightly says that there is nothing in the text of s 25B or 25C that confines its application to technical breaches. Nonetheless, where there has been a failure by the consent authority to take into account a mandatory consideration under s 4.15(1), it is difficult to see how the Court could be satisfied that compliance with specified terms “will validate the consent” (as distinct from “may validate the consent”) unless the breach is of a technical nature.

9. [115]

   In this case, were the orders sought by the respondent under s 25B of the LEC Act made, it is difficult to see how, without a reopening of submissions on the development application, it could be said that the terms proposed by the respondent, if complied with, “will” validate the consent. For the reasons in relation to ground 2, the materials before the consent authority (and the primary judge) did not establish that, as at the date of the IPC’s consideration of the development application, no alignment of the route of the transmission line had been determined, or that no likely route of the transmission line had been determined. It is inconceivable that the construction and operation of a 13km power transmission line would not have some environmental impact, or some social or economic impact in the locality of the line (whether positive or negative). The cumulative effect of such impact with the impact of the development of the mine itself should be determined (Hoxton Park at [55]).

10. [116]

    True it is that declaring the development consent to be void will reopen the development application for further consideration which will require balancing the consideration of such impacts against other relevant considerations. But that is not a reason for declining to make a declaration of invalidity of the consent. To the contrary, it is consistent with the objects of the EP&A Act and the purpose of s 4.15(1). It is also the consequence of the respondent’s decision to proceed on the basis that consent to the transmission line would not be required from the IPC but would be subject to separate approval under Pt 5 and thus to withdraw from the IPC’s consideration the likely impacts of the transmission line.

11. [117]

    I do not accept the respondent’s submission that orders should be made as proposed by the respondent under s 25B of the LEC Act.

12. [118]

    For these reasons the appeal should be allowed. I propose the following orders:

    1. (1)

       Appeal allowed.

    2. (2)

       Set aside the orders made by Land and Environment Court on 14 March 2024 and in lieu thereof:

    3. (3)

       The First Respondent pay the Appellant's costs of the appeal.

13. [119]

    ADAMSON JA: I agree with White JA.

14. [120]

    PRICE AJA: I have had the advantage of reading in draft the judgment of White JA with whom Adamson JA agrees. I find myself in respectful disagreement with the orders White JA proposes. As I am in the minority, my judgment will be brief. I am grateful for his Honour’s recitation of the relevant facts and legislation and I will not repeat them.

15. [121]

    I agree that s 4.38 of the EP&A Act applies so that development consent for the transmission line must be obtained from the IPC under Pt 4. However, I agree with the respondent’s contention that even if IPC’s consent to the transmission line is required, that consent can be obtained later.

16. [122]

    There is nothing to suggest in the terms of s 4.38(4) that the consent authority is required to grant consent to all parts of a State significant development at one time. It is well established that there can be more than one development application for a single development. As Preston CJ at LEC observed in AQC Dartbrook Management Pty Ltd v Minister for Planning and Public Spaces (2021) 105 NSWLR 152; [2021] NSWCA 112 at [233]:

17. [123]

    Section 4.38(4) does not require either expressly or implicitly that all parts of a State significant development requiring consent be included in one development application. State significant development applications will inevitably involve a major project of some complexity. It makes little sense to restrict State significant development applications to a single application whereas two applications may be made for less significant development applications. To do so would not promote the objects of the EP&A Act which include “the orderly and economic use and development of land”: s 1.3(c).

18. [124]

    Section 4.38(1)(a) enables conditional consent to be granted where more than one application is made so that various parts of the State significant development are considered at different times; the broad powers of the IPC include the imposition of conditions of a kind provided in s 4.17 of the EP&A Act.

19. [125]

    In the present case, when the development application was made, the precise alignment of the 66kV transmission line was not settled. True it is the understanding of the Department and the IPC that the environmental impacts of the transmission line would be addressed when approval was sought under Pt 5 was misguided but that does not mean, in my opinion, that the respondent (now that guidance has been provided) may not apply to the IPC for development consent for the powerline when the precise alignment is settled.

20. [126]

    As the primary judge observed at [44], “the determination of the proposed route of any power line is critical to determining the possible impacts of such development”.

21. [127]

    Whilst I agree with White JA’s observations at [92]-[93] that there was no evidence that “as at the date of development consent the route had not been determined”, the respondent conducted its case before the primary judge and in this Court on the basis that the alignment of the 66kV powerline has not been fully settled. I do not understand the appellants to submit otherwise.

22. [128]

    In my opinion, once the alignment of the powerline is settled, the respondent may apply to the IPC for development consent for the powerline. When considering that application, the IPC’s powers include the surrender or modification of the earlier consent.

23. [129]

    As the respondent may make a further application to the IPC, I do not consider that the development consent granted on 3 April 2023 should be declared to be “void and of no effect”.

24. [130]

    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.

25. [131]

    The orders that the respondent seeks, if the IPC’s decision was affected by material jurisdictional error, are provided in White JA’s judgment at [107]. His Honour further sets out ss 25B and 25C of the Land and Environment Court Act 1979 (NSW) (“the Act”) at [108].

26. [132]

    It is apposite to note that by s 25A(1) of the Act, Division 3 applies to a development consent granted by the IPC. Section 25A(2) provides:

27. [133]

    As White JA recounts at [112], Hodgson JA said at [21] in Kindimindi Investments Pty Limited v Lane Cove Council [2007] NSWCA 38; (2007) 150 LGERA 333 in relation to s 25B that “the general intention was that technical breaches should be capable of being rectified”. However, Hodgson JA said at [19] and [20]:

28. [134]

    The respondent correctly contends that there is nothing in ss 25B or 25C that confines their application to technical breaches. In my view, there is no good reason why s 25B should not apply to the present case which arose out of the misapprehension of all involved in the development application.

29. [135]

    Accordingly, the orders I would propose are as follows:

    1. (1)

       Until further order, the operation of the whole of the consent to development application number SSD 5765 granted on 3 April 2023 (Consent) is suspended.

    2. (2)

       Compliance with the following terms will validate the Consent: