Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979

1. [1]

   BELL P: I agree with Payne JA whose clear and comprehensive reasons I have had the benefit of reading.

2. [2]

   GLEESON JA: I agree with Payne JA.

3. [3]

   PAYNE JA: This is an appeal from a decision of Pain J in the Land and Environment Court delivered on 23 December 2019: Reysson Pty Ltd v Minister Administering the Environment Planning and Assessment Act 1979 [2019] NSWLEC 203.

4. [4]

   The primary judge dismissed the amended summons in which Reysson Pty Ltd (Reysson) sought judicial review of the State Environmental Planning Policy (Coastal Management) 2018 (NSW) (Coastal Management SEPP) made by the Governor pursuant to s 3.29 of the Environmental Planning and Assessment Act 1979 (NSW) (Environmental Planning and Assessment Act). The first respondent was the Minister Administering the Environmental Planning and Assessment Act 1979. The State of New South Wales was joined as the second respondent and filed a submitting appearance.

5. [5]

   Reysson challenged the validity of the mapping of an area identified as the “coastal wetlands and littoral rainforests area” in the Coastal Management SEPP as it related to the land owned by Reysson at Tweed Heads, being Lot 2 in DP 1060215 and Lot 4 in DP 228424 (the Reysson Land). The “coastal wetlands and littoral rainforests area” is an area identified on the Coastal Wetlands and Littoral Rainforests Area Map (Coastal Wetlands and Littoral Rainforests Area Map) under the Coastal Management SEPP (cll 6(2) and 8 of the Coastal Management SEPP).

6. [6]

   Reysson sought a declaration that the Coastal Management SEPP was invalid or, alternatively, was invalid to the extent that it applied to the Reysson Land. Further or alternatively, Reysson sought a declaration that the Coastal Management SEPP did not validly identify the “coastal wetlands and littoral rainforests area” for the purposes of the Coastal Management Act 2016 (NSW).

7. [7]

   The primary judge rejected Reysson’s claims. For the reasons that follow Reysson’s appeal should be dismissed with costs.

Relevant facts

1. [8]

   The Reysson Land is located on the NSW coast in Tweed Heads South. The Reysson Land is included in the Coastal Wetlands and Littoral Rainforests Area Map under the Coastal Management SEPP. The Reysson Land comprises Lot 2 in DP 1060215 and Lot 4 in DP 228424. Lot 2 is situated above Lot 4. Since the 1970s, extensive earthworks have been carried out on the Reysson Land involving the digging of stormwater channels on behalf of the Tweed Shire Council to provide stormwater drainage from remote subdivision sites through the Reysson Land out to the Tweed River and the construction of associated works such as levee banks and floodgates. Stormwater runoff is directed onto the Reysson Land from the nearby golf course to the north. A narrow area of Crown land divides Lot 2 in the western part of Lot 2. Part of Lot 4 is currently used as a banana plantation. The Reysson Land and its features can be seen in the following map:

2. [9]

   As the legend makes clear, this map depicts the areas potentially affected by tides in the separate parcels of land. The separate parcels are enclosed by the red boundary. The parts marked in blue depict those parts of the Reysson land which have surface levels of less than .85 metres Australian Height Datum (AHD), which is a measure of mean sea level averaged from 1966 to 1968, and assigned the value of zero. Dr Martens and Dr Hazelton (engaged by Reysson) and Dr Sutherland (engaged by the first respondent) agreed in a joint experts report dated 24 July 2019 as follows:

3. [10]

   As will become apparent, it is important in at least one respect to the present appeal that in the northern parcel of Reysson’s land, numerous small patches of blue are shown indicating that the land contains many areas potentially affected by tides.

4. [11]

   The Minister for Planning (the Minister) recommended the making of the Coastal Management SEPP to the Governor on 7 March 2018. The Governor signed the Coastal Management SEPP on 14 March 2018 and it was published in the Gazette on 23 March 2018. It commenced on 3 April 2018.

Relevant legislation

1. [12]

   Relevant sections of the Environmental Planning and Assessment Act concerning the making of an environmental planning instrument provide:

2. [13]

   The Coastal Management Act 2016 (NSW) and the Coastal Management SEPP came into force on 3 April 2018 and replaced the former statutory scheme comprising the Coastal Protection Act 1979 (NSW), State Environmental Planning Policy No 14 – Coastal Wetlands, State Environmental Planning Policy No 26 – Littoral Rainforests and State Environmental Planning Policy No 71 – Coastal Protection.

3. [14]

   Relevant sections of the Coastal Management Act provide:

4. [15]

   Relevant clauses of the Coastal Management SEPP provide:

Grounds of appeal

1. [16]

   There were 10 grounds of appeal advanced by Reysson:

2. [17]

   The appellant grouped the appeal grounds into three distinct issues or sets of issues. It is convenient to adopt that characterisation for the purpose of these reasons:

   1. (1)

      grounds 1-8 relate to the primary judge’s interpretation of s 6(1) of the Coastal Management Act and her Honour’s application of that section to the Reysson Land. These grounds address the primary judge’s findings in relation to whether that section contains a jurisdictional fact, and the manner in which the primary judge approached that task;

   2. (2)

      ground 9 challenges the failure to find that the additional mapping of “adjoining” land was not directly related and proportionate to the protection of the “features” specified in s 6(1) of the Coastal Management Act; and

   3. (3)

      ground 10 complains that the Coastal Wetlands and Littoral Rainforests Area Map was not before the Governor when making the SEPP.

Grounds 1-8: interpretation of s 6(1) of the Coastal Management Act

1. [18]

   These grounds turn on the issue of whether, as the appellant submitted, s 6(1) of the Coastal Management Act contains a jurisdictional fact that preconditioned the exercise of the statutory power to identify land as being within the coastal wetlands and littoral rainforests area. The primary judge held that s 6(1) of the Coastal Management Act did not contain a jurisdictional fact. Ground 7 challenged that finding. Grounds 1-6 challenge the reasoning process adopted by the primary judge in arriving at that finding. Ground 8 challenges a further application of that finding.

2. [19]

   The appellant submitted that the power to identify land as being within the coastal wetlands and littoral rainforests area in a SEPP for the purposes of the Coastal Management Act extends only to land which meets the statutory description in s 6(1) of the Coastal Management Act; and there is no power to include land within that area if it does not meet that description. If this is so, the issue of whether or not the parts of the Reysson Land mapped within the coastal wetlands and littoral rainforests area met the statutory description was an issue of fact which the Court below should have determined de novo, and by reference to the expert evidence led by the parties.

3. [20]

   Section 6(1) of the Coastal Management Act is set out at [14] above. The appellant submitted that the relevant statutory description which the land must meet in order for it to be within power to identify it as within the coastal wetlands and littoral rainforests area is that the land:

   1. (1)

      displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforest; or

   2. (2)

      is land adjoining land with those features.

4. [21]

   The appellant submitted that the primary judge’s analysis commenced by declining to give meaning to the expression “coastal wetland” which is not defined in the Coastal Management Act. This forms the basis of appeal grounds 1-6. Relevantly, the primary judge said:

5. [22]

   The appellant submitted that the primary judge should have found that the term “coastal wetland” had a meaning (whether popular or technical) of being a discrete geographic feature with specific characteristics, most notably that it was cyclically, intermittently or permanently inundated or wet, that was an indicator that should have been taken into account in the task of statutory construction of s 6(1) of the Coastal Management Act and consideration of whether that provision contained a specification of a jurisdictional fact.

6. [23]

   The appellant submitted that a relevant consideration in the construction exercise was whether an evaluative judgment was required. If the exercise of identification involves assessing whether land displays the hydrological and floristic characteristics of coastal wetlands, one must first identify what a “coastal wetland” is within the meaning of s 6(1) of the Coastal Management Act, and then identify its characteristics.

7. [24]

   The appellant submitted that the primary judge’s finding that it was unnecessary to form a view about the meaning of the term “coastal wetland” was an error. This is the substance of appeal ground 5. The appellant submitted that the error was material as it affected the overall construction of s 6(1) of the Coastal Management Act.

8. [25]

   The appellant submitted that whether the term “wetland” is given its popular or technical meaning, the meaning would be that overall, an area which displayed the hydrological and floristic characteristics of “coastal wetlands” would be an area of land:

   1. (1)

      inundated cyclically, intermittently or permanently with water (the hydrological characteristics); and

   2. (2)

      vegetated with wetland plant communities (the floristic characteristics).

9. [26]

   The appellant submitted that as a consequence, the primary judge should have found that it was an essential characteristic of a “wetland”, as that term is used in s 6(1) of the Coastal Management Act, that it was land which was wet, in the sense of being inundated with water, at least part of the time. This forms the basis of appeal ground 1.

10. [27]

    Appeal ground 2 relates to the primary judge’s finding about whether “coastal wetlands” as described under s 6(1) of the Coastal Management Act have to be natural. Relevantly, the primary judge said:

11. [28]

    The appellant submitted that its case did not change as the primary judge found. Instead, the appellant’s case was always put on two alternative bases: that the relevant areas of land did not display the hydrological and floristic characteristics of coastal wetlands, or did not naturally display those characteristics.

12. [29]

    As to appeal ground 2, the appellant submitted that a requirement for the specified characteristics to be naturally displayed should be read into s 6(1) of the Coastal Management Act. This was because:

    1. (1)

       the management objectives in s 6(2) of the Coastal Management Act referred to the protection of coastal wetlands and littoral rainforests “in their natural state”;

    2. (2)

       the objects of the Coastal Management Act relevantly referred at s 3(a) to protection and enhancement of “natural coastal processes and coastal environmental values” and “natural character, scenic value, biodiversity and ecosystem integrity and resilience”; and

    3. (3)

       therefore, the statute evinces an intention to protect natural places, processes and values rather than artificial environments.

13. [30]

    The appellant summarised its conclusions in relation to grounds 1-6 as follows:

    1. (1)

       the primary judge should have given meaning to “coastal wetlands” to inform the construction of whether s 6(1) contains a proposition of jurisdictional fact;

    2. (2)

       the primary judge should have found that “land which displays the hydrological and floristic characteristics of coastal wetlands” meant land which was inundated cyclically, intermittently or permanently with water; and

    3. (3)

       the primary judge should have found that s 6(1) required the relevant land to display these characteristics naturally, not as a result of artificial processes.

14. [31]

    Ground 7 of the notice of appeal challenges the primary judge’s conclusion that s 6(1) of the Coastal Management Act does not specify a jurisdictional fact.

15. [32]

    The primary judge said:

16. [33]

    The appellant submitted that the primary judge erred at [100]-[106] in relation to the structure of the statutory scheme. The appellant submitted that only the first part of s 6(1) of the Coastal Management Act performs a definitional function. The balance of the provision must be given some work to do. The appellant submitted that were the further words not there, the Governor would have an unconfined discretion about the lands which could be identified as being within the coastal wetlands and littoral rainforests area.

17. [34]

    The appellant submitted that this is important as, once the land is identified as being within the coastal wetlands and littoral rainforests area, that land must be managed in accordance with the set of management objectives set out in s 6(2) of the Coastal Management Act.

18. [35]

    The appellant submitted that the fact that the provision is expressed in the present tense is of no moment. The appellant submitted that it was also of little relevance whether ss 7, 8 and 9 stand to be construed according to their own terms. If part of s 6(1) of the Coastal Management Act contains a jurisdictional fact, the appellant submitted it would indicate that the legislature has taken it upon itself to identify the type of land to be subject to management in the coastal wetlands and littoral rainforests area and then only left to the Governor to determine what land of that type should in fact be placed within that zone.

19. [36]

    As to the structure of the statutory scheme, the respondent submitted that where a SEPP such as the Coastal Management SEPP “identifies” land as being a “coastal wetlands and littoral rainforests area”, and does so for the purposes of the Coastal Management Act, it is to be treated effectively as identifying land as such for the purposes of the Coastal Management Act. The Coastal Management SEPP achieves such identification through its adoption of the Coastal Wetlands and Littoral Rainforests Area Map.

20. [37]

    The appellant also challenged the primary judge’s findings at [107]-[110] as to the nature of the task. The primary judge there found:

21. [38]

    The appellant submitted that while it is relevant to consider as part of the exercise of statutory construction the potential need for application of some evaluation to determine whether or not a state of facts exist, that factor is rarely determinative of a matter not being a statement of jurisdictional fact. Even when facts are described as “objective” they do not have an existence independent of their identification by some process of human agency.

22. [39]

    The appellant challenged the primary judge’s findings about inconvenience at [111]-[115]. The primary judge there found:

23. [40]

    The appellant submitted that while the degree of inconvenience is a material factor to be taken into account to inform the process of statutory construction, it was not determinative.

24. [41]

    The appellant submitted that there was no basis for the primary judge to distinguish Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, because a similar three month limitation period applies to challenges to environmental planning instruments such as the Coastal Management SEPP: s 3.27 of the Environmental Planning and Assessment Act.

25. [42]

    The appellant submitted that the final sentence at [112] of the primary judgment suggests that the primary judge considered a consequence of Reysson’s interpretation of s 6(1) being accepted would be that other proceedings might rely upon the same interpretation. The appellant submitted that such reasoning should play no part in statutory interpretation.

26. [43]

    The appellant submitted that the finding at [113] that the possibility of severance does not overcome inconvenience and harm to the statutory scheme is contradictory. If the proper construction of the statutory scheme is that s 6(1) of the Coastal Management Act provides a limitation on power, it can do no harm to the statutory scheme to give effect to that limitation.

27. [44]

    Finally, the appellant submitted that Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8, Pallas Newco and Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 could not be distinguished on the basis that they “dealt with the evaluation of matters concerning only one site”. While each case dealt with a step in the process of granting individual development consents, the underlying statutory scheme applies to all development consents. It was submitted that the reasoning in those cases has application to the grant of any development consent.

28. [45]

    The appellant also challenged the primary judge’s findings on consultation at [116]-[118]. The primary judge there found:

29. [46]

    The appellant submitted that these paragraphs illustrated a fundamental error because there is no mandatory requirement to conduct consultation prior to making a SEPP, rather, the Minister may elect to take such consultative steps as the Minister “considers appropriate or necessary”.

30. [47]

    The appellant submitted that there is no additional requirement in the Coastal Management Act mandating consultation for a SEPP identifying the coastal wetlands and littoral rainforests area. The fact that the statutory scheme does not in terms mandate any consultation or expert input into the process of identification supports construing s 6(1) of the Coastal Management Act as imposing a factual constraint upon the power to identify land within the coastal wetlands and littoral rainforests area.

31. [48]

    As to whether the Reysson land fitted within the description in s 6(1) of the Coastal Management Act, the appellant submitted that primary judge’s analysis contains the following errors:

    1. (1)

       the primary judge incorrectly found at [129] that the Coastal Wetlands and Littoral Rainforests Area Map did not differentiate between those parts of the land that exhibit the relevant characteristics of wetlands, and those parts of the land which “adjoin” these features;

    2. (2)

       a comparison of the area of the Reysson land agreed by Reysson to display the relevant characteristics, and the proximity areas for coastal wetlands, demonstrates that there is no factual basis on the evidence for the finding at [130] that the areas marked as proximity areas were contiguous with the areas displaying the relevant characteristics; and

    3. (3)

       the primary judge’s analysis was fatally flawed by her Honour’s finding at [130] that “how far the adjoining land extends is unconfined by s 6(1)”. The appellant submits that the primary judge made no attempt to give meaning to the word “adjoin” or to provide reasons for finding that “how far adjoining land extends is unconfined”. The word “adjoins” of necessity contains a limitation. The appellant submits that in the present case, to determine the amount of proximity that land would require to the land possessing the characteristics of a coastal wetland to meet the description in s 6(1) of “adjoining” such land, it is appropriate to give the word meaning having regard to the purpose of the legislation and the geographic context in which it arises. It was for that reason that Reysson sought to lead expert evidence below.

32. [49]

    At [129]-[130] the primary judge found:

33. [50]

    The appellant submitted that the primary judge did not substantially deal with the appellant’s submissions below on the meaning of the word “adjoin”. The primary judge made no attempt to give meaning to the word “adjoin” or provide reasons for finding that “how far adjoining land extends is unconfined”.

34. [51]

    The appellant further submits that the primary judge’s analysis also failed to appreciate that incorrect identification of the area with the relevant wetland characteristics means that any identification of land purportedly “adjoining” that land must be flawed. If the area of coastal wetland had been wrongly applied then the 100 metre proximity area would not have correctly identified “land adjoining” the wetland.

Consideration of grounds 1-8

1. [52]

   The critical question at the heart of grounds 1 to 8 of this appeal is whether s 6(1) of the Coastal Management Act on its proper construction imposes a jurisdictional precondition to the exercise of the power to map any land as part of the coastal wetlands and littoral rainforests area. Put another way, was it an objective jurisdictional fact which must exist as a precondition to the engagement of the statutory power that any land identified as coastal wetlands and littoral rainforests area must display the hydrological and floristic characteristics of “coastal wetlands” or “littoral rainforests”, or adjoin such land? Resolution of that question is dispositive of much of the appeal.

2. [53]

   Whether legislation creates a jurisdictional fact of the kind to be objectively ascertained by the Court is a question of statutory construction: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5; Timbarra per Spigelman CJ (with whom Mason P and Meagher JA agreed) at [39].

3. [54]

   I have concluded that on the proper construction of the Environmental Planning and Assessment Act and the Coastal Management Act, the power of the Governor to make the Coastal Management SEPP is not conditioned upon the existence of the jurisdictional fact identified by the appellant. It is not part of the Court’s role to determine for itself whether land falling within the Coastal Wetlands and Littoral Rainforests Area Map displays the requisite “floristic and hydrological characteristics” of “coastal wetlands” or “littoral rainforests” or adjoins land which does.

4. [55]

   This Court has on a number of occasions identified the considerations bearing on the correct identification of a jurisdictional fact: Timbarra; Pallas Newco; Hunter lndustriaI Rental Equipment; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 372 ALR 695. In the present case the following were of particular relevance:

   1. (1)

      the structure of the legislation. The relevant question is whether the structure of the legislation points to identification of “coastal wetlands” or “littoral rainforests” as an essential precondition to the engagement of the statutory power. Alternatively, does the structure of the legislation point to a conclusion that the question of whether land is or adjoins “coastal wetlands” or “littoral rainforests” is better understood as identifying facts “to be adjudicated upon in the course of the inquiry”: Pallas Newco at [46]; Timbarra at [52]; Colonial Bank of Australasia v Willan (1874) LR 5 PC 417 at 442-443;

   2. (2)

      the nature of the task to be performed. If the resolution of the relevant matter said to be a jurisdictional fact is a straightforward one lending itself readily to objective resolution, it is more likely to be an objective jurisdictional fact. By contrast, the opposite conclusion is likely if the task is:

5. [56]

   It is to be borne in mind that the extent of the evaluative exercise and the degree of inconvenience are material factors to be taken into account, not to dictate a particular outcome, but to inform a process of statutory construction: Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [17].

6. [57]

   A SEPP is a type of environmental planning instrument made under Part 3 of the Environmental Planning and Assessment Act. An environmental planning instrument may be made in accordance with Part 3 for the purposes of achieving any of the objects of the Environmental Planning and Assessment Act: s 3.13. An environmental planning instrument may make provision for or with respect to any of the matters set out in s 3.14 of the Environmental Planning and Assessment Act. Section 3.29(1) provides (and provided at the time of the making of the Coastal Management SEPP) the source of the Governor’s power to make the Coastal Management SEPP:

7. [58]

   In the present case, the unchallenged finding of the primary judge was that the Executive Council did advise the Governor to make the Coastal Management SEPP. Even though the Coastal Management SEPP identifies land for the purposes of the Coastal Management Act, s 3.29 was and remains the relevant source of power to make the Coastal Management SEPP.

8. [59]

   The Coastal Management Act does not provide a separate or additional source of power for the making of the Coastal Management SEPP. It is correct, however, that the Coastal Management Act contemplates that a SEPP may be made which will have specific consequences for the purposes of the Coastal Management Act, including by identifying and classifying relevant areas in particular ways.

9. [60]

   The Coastal Management Act regulates, in various ways, the “coastal zone”. The coastal zone is comprised of four coastal management areas: s 5. One of those areas is the “coastal wetlands and littoral rainforests area”. Section 6(1), set out at [14] above, contains a definition of that phrase.

10. [61]

    Where a SEPP such as the Coastal Management SEPP “identifies” land as being a “coastal wetlands and littoral rainforests area”, and does so for the purposes of the Coastal Management Act, it identifies land having that character for the purposes of the Coastal Management Act. The Coastal Management SEPP achieves such identification through its adoption of the Coastal Wetlands and Littoral Rainforests Area Map: see cll 4 and 8 of the Coastal Management SEPP.

11. [62]

    Section 6 of the Coastal Management Act does not restrict or condition the power to make a SEPP which is conferred by s 3.29 of the Environmental Planning and Assessment Act. Rather, it describes one of the consequences that the contents of a SEPP may have where the SEPP is made for the purposes of identifying coastal management areas.

12. [63]

    Section 6(1) of the Coastal Management Act also describes the type of land which is to be identified by a SEPP to be the coastal wetlands and littoral rainforests area for the purposes of the Coastal Management Act. It is not, however, expressed as a condition on the exercise of the power. Section 6(1) of the Coastal Management Act describes characteristics that make it appropriate for land to be identified as a “coastal wetlands or littoral rainforests area”, but does not stipulate that the power to make a SEPP that identifies such areas only exists if those characteristics exist. The intention of the legislation is that those responsible for preparing the maps by which land can be identified as the “coastal wetlands or littoral rainforests area” by a SEPP will need to exercise judgment in identifying areas that have the requisite characteristics, or adjoin areas that have the requisite characteristics, before incorporating those areas into such maps. It is not correct, as submitted by the appellant, that the provision has no work to do or otherwise confers an “unconfined discretion” unless it is construed to provide a jurisdictional fact.

13. [64]

    The criterion which the appellant says is an objective jurisdictional fact goes to the heart of the exercise of making the legislative instrument, namely the identification and selection of land appropriate to be mapped as part of the coastal zone, in this case the “coastal wetlands and littoral rainforests area”. The determination of the presence or absence of the condition will necessarily fall to be made in the course of the consideration of the exercise of the power. As explained in Timbarra at [44] and Muswellbrook Shire Council at [30] this is an important and usually determinative indication that the fact in question is not a jurisdictional fact.

14. [65]

    The structure of the legislation tends strongly against a conclusion that the fact relied upon by the appellant is a jurisdictional fact. Section 10(2) of the Coastal Management Act expressly restricts the power to make a SEPP that identifies a coastal management area, by requiring that there must be a recommendation of the Minister administering the Coastal Management Act. If the Parliament had intended to create an essential objective precondition to the exercise of the power it could have structured s 6 in a way that was equivalent to s 10(2), but chose not to. If the appellant were correct that s 6(1) created an objective jurisdictional fact, the same would apply to the other provisions of the Coastal Management Act which are structured in an identical way and contemplate the identification of other areas within the coastal zone. The relevant provisions are:

    1. (1)

       s 7(1), which addresses the “coastal vulnerability area” which is described as land “subject to coastal hazards”. Coastal hazard is a defined term (s 4) and it includes such matters as coastal cliff or slope instability and coastal inundation;

    2. (2)

       s 8(1), which addresses the “coastal environment area” which is described as land “containing coastal features such as the coastal waters of the State, estuaries, coastal lakes, coastal lagoons and land adjoining those features, including headlands and rock platforms”; and

    3. (3)

       s 9(1), which addresses the “coastal use area” which is described as “land adjacent to coastal waters, estuaries, coastal lakes and lagoons where development is or may be carried out (at present or in the future)”.

15. [66]

    Determining which land can and should be identified as forming part of each of these areas may, and frequently will, involve complex, contestable evaluative judgments. It is improbable that the legislature intended that these provisions turn on objective jurisdictional facts. The similar structure suggests a common intention throughout about the nature of the mapping exercise and the qualifying criteria specified in respect of the different zones.

16. [67]

    A further factor militating against the appellant’s construction of the Coastal Management Act is that s 6(1) of the Coastal Management Act is expressed in the present tense. On the appellant’s construction, a SEPP can only validly identify land as coastal wetlands if, as a matter of objective fact, it addresses “land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features.” On this construction, a court must determine that fact for itself. In doing so, the court must consider the characteristics of the land as at the date the instrument was made, rather than the date the court comes to consider the evidence. Yet in making this assessment, a court is likely to be at a significant disadvantage compared with those who prepared the maps, because of the difficulty in identifying what characteristics of the land were “displayed” in the past. Senior Counsel for the appellant accepted that “climate change is probably the best example of that where wetlands can shift, expand or reduce, depending on exogenous hydrological conditions”. It was submitted that “they’re still part and parcel of the natural process”. The point, for present purposes, is that it is unlikely that the legislature would have intended the validity of a SEPP to turn on such an evaluation by a court.

17. [68]

    Whether it is appropriate for land to be identified as part of a “coastal wetlands and littoral rainforests area” involves a careful assessment of complex facts and the formation of opinions and value judgments about a range of matters:

    1. (1)

       first, there is an evaluative process of determining what the “hydrological and floristic characteristics” of coastal wetlands and littoral rainforests are. If the legislature had intended that the identity of “coastal wetlands” and “littoral rainforests” would create a test to be applied by the courts, it would have provided a definition of those characteristics;

    2. (2)

       secondly, there is an evaluative process of determining whether “hydrological and floristic characteristics” of coastal wetlands and littoral rainforests are in fact displayed;

    3. (3)

       thirdly, there is an evaluative process of selection. The Coastal Management Act does not contemplate or require that all land having the requisite characteristics will be identified as “coastal wetlands and littoral rainforests”. Value judgments must be made in determining whether land found to display the requisite characteristics should be identified as part of a “coastal wetlands and littoral rainforests area”.

18. [69]

    Identifying what land should be identified as forming part of “a coastal wetlands and littoral rainforests area” on the basis that it is land “adjoining” land enjoying the relevant features also involves additional difficult evaluative judgments. The choice about what land should be treated as “adjoining” such features may involve a policy choice; how narrowly or broadly the boundaries should be drawn in identifying “adjoining land”. I have concluded that the legislature did not intend that a court would make policy judgments of this kind and draw the boundaries of the Coastal Wetlands and Littoral Rainforests Area Map.

19. [70]

    The process of identifying the presence of land with the requisite characteristics and the process of deciding where to draw the boundaries relative to such areas are closely intertwined. The legislature did not intend that the validity of the resulting map depend upon a judicial re-examination of the objective correctness of the first step.

20. [71]

    The issues debated before the primary judge demonstrate the considerable scope for debate and disagreement about the relevant hydrological and floristic characteristics of “coastal wetlands” and “littoral rainforests” and how those hydrological and floristic characteristics should be recognised at any given site. I accept the Minster’s submission that the process is complex and contestable. The scale and nature of the judgment to be exercised makes it unlikely that the legislature intended that the validity of the Coastal Management SEPP should depend upon a court making an objective assessment about the characteristics of the land being mapped. Although the present case focused on the Coastal Wetlands and Littoral Rainforests Area Map as it applied to the Reysson Land, the Coastal Wetlands and Littoral Rainforests Area Map applies to the entire coastal region of NSW.

21. [72]

    The primary judge heard three days of evidence about the characteristics of one relatively small area of land forming part of just one of almost 6,000 polygons that comprise the Coastal Wetlands and Littoral Rainforests Area Map. The preparation of the complete Coastal Wetlands and Littoral Rainforests Area Map, involving the identification and mapping of land having the relevant characteristics, was no doubt a complicated and technical task. It is highly improbable that the legislature intended that the validity of the mapping exercise would fall to be determined by a court’s own assessment of hydrological and floristic characteristics of land included in each of the 5,832 polygons comprising the Coastal Wetlands and Littoral Rainforests Area Map.

22. [73]

    I reject the appellant’s submission that as they are the only party to complain about the validity of the Coastal Wetlands SEPP this is a factor of lesser importance. That submission does not address the present task of statutory construction.

23. [74]

    It is clear from the 5,832 polygons comprising the Coastal Wetlands and Littoral Rainforests Area Map covering the whole of the NSW coast that considerable inconvenience may be occasioned if the validity of the mapping incorporated in the Coastal Management SEPP turned on a subsequent judicial determination about the accuracy of the relevant hydrological and floristic characteristics of the land.

24. [75]

    While it is correct, as the appellant submitted, that there is a three-month time limit on the commencement of proceedings, the actual process for determining the validity of inclusion of land in a map will inevitably take considerably longer. In the present case, for example, the parties are still debating the validity of an instrument that was made in April 2018. In the interim, no doubt vast numbers of people and enterprises have proceeded to act in reliance on the Coastal Management SEPP, which is an environmental planning instrument of general application. While the extent of any orders invalidating parts of the Coastal Management SEPP may be confined, the validity of a legislative instrument being subject to such uncertainty is obviously highly undesirable. It is unlikely the legislature intended such uncertainty.

25. [76]

    Where the legislative scheme provides for consultation to occur at the decision-making phase, as here, that is an indicator that the matter is to be determined by that process, and not by a court on review.

26. [77]

    Section 3.30 of the Environmental Planning and Assessment Act provides for consultation on a proposed SEPP. This is a legislative mechanism through which interested persons can comment on what is proposed, which would include raising any disagreement about the identification of land as “coastal wetlands” in proposed maps. That scheme for consultation in relation to a legislative instrument would be undermined if the matter in truth falls subsequently to be determined by a court.

27. [78]

    I accept that there is no obligation to consult under s 3.30 of the Environmental Planning and Assessment Act. Rather, provision is made for such consultation as the Minister considers appropriate or necessary. Nevertheless, such a provision reinforces my conclusion that the process of preparing a SEPP for making by the Governor is essentially a legislative exercise, not intended to be subject to review on objective grounds by the Court.

28. [79]

    The appellant emphasised that s 6(1) of the Coastal Management Act is not expressed by reference to any individual’s state of satisfaction. However, that is not a conclusive indicator that the provision creates an objective jurisdictional fact. The absence of subjective terminology is of diminished significance in circumstances where, as here, s 6(1) of the Coastal Management Act is not a provision that confers or conditions the power to make a SEPP. Rather, as I have explained, it is a provision that takes a definitional form and identifies the consequences of a SEPP that is made, where the SEPP includes the identification of a “coastal wetlands and littoral rainforests area”.

29. [80]

    I have concluded that the power to make the Coastal Management SEPP does not depend upon an objective jurisdictional fact about the characteristics of the land forming part of the “coastal wetlands and littoral rainforests area”. These conclusions are sufficient to reject grounds 1-8 of the notice of appeal.

30. [81]

    The following points arise in response to further specific arguments advanced by the appellant under particular grounds.

31. [82]

    Grounds 1, 3, 4 and 5 are really different aspects of the same argument. The question of whether or not a “coastal wetland” needs to be inundated by water at the surface at least some of the time was a matter that was explored by each of the parties’ experts on the hydrological characteristics of “coastal wetlands”.

32. [83]

    It was submitted that an essential characteristic of a “wetland” within the meaning of s 6(1) of the Coastal Management Act was that it was land that was inundated with water at least part of the time. In seeking to construe the reference to “wetlands” in s 6(1) of the Coastal Management Act, the appellant relied upon dictionary definitions and on the treatment of allegedly cognate terms in other Acts and legislative instruments. I reject the reliance on dictionary definitions as providing assistance in this case. This is not to deny the value of dictionary definitions in some cases and some contexts. As Leeming JA explained in South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [79]:

33. [84]

    I also reject the appellant’s reliance upon the definition of terms used in other Acts and legislative instruments to construe the meaning of those terms in the present context. Absent some indication that the context is the same or similar, or some obvious relationship between the Acts or instruments in question, it is generally unhelpful to transpose the meaning of a term from one statutory context to another.

34. [85]

    The appellant’s deceptively simple submission that “it’s not difficult to determine a wetland” should be rejected. As this case demonstrates, the question “what is a wetland” throws up a broad range of possible answers. Determining the meaning, at large, of the terms “wetland” or “coastal wetland”, does not resolve the character of the constraint, if any, on the power to make a SEPP imposed by s 6(1) of the Coastal Management Act. I reject the appellant’s submission that arriving at a construction of the words “wetlands” or “coastal wetlands” assists in resolving the jurisdictional fact debate. Construing individual words plucked from their context in the Coastal Management Act does not assist in identifying the correct construction.

35. [86]

    The evaluative judgment required under s 6(1) of the Coastal Management Act is not the identification of a “wetland”, but rather, an assessment of whether the hydrological and floristic characteristics of coastal wetlands are displayed. At most, resolving the interpretation of those words might inform some of the detail of the evaluative criteria to be applied. But whatever constructional choices are made, the basic nature of that evaluative exercise remains. Even if “wetland” had one particular meaning, rather than its meaning in this context, that will not detract from the need for an evaluative exercise to be carried out in determining what the characteristics of particular land are, measured against that interpretation. For these additional reasons, I would reject grounds 1, 3, 4 and 5.

36. [87]

    Ground 2. This ground took issue with the primary judge’s failure to find that an essential characteristic of a wetland within s 6(1) was land which was inundated by natural processes, as distinct from artificial ones such as drainage.

37. [88]

    I reject the appellant’s submission. There are no textual or purposive considerations that suggest such a qualification on the explicit words of the Coastal Management Act should be implied. Such an approach would be difficult, if not impossible, for any decision-maker to apply. The appellant’s attempts to explain what “natural” meant in this context demonstrate the inherent instability in the concept itself, making it unlikely that the legislature intended to imply such a requirement.

38. [89]

    Grounds 6 and 7. I have addressed grounds 6 and 7 sufficiently in determining that s 6 of the Coastal Management Act does not identify a jurisdictional fact. Those grounds must be dismissed.

39. [90]

    Ground 8. It will be recalled that ground 8 complained about the conclusion of the primary judge at [129] and [130] set out at [49] above. The primary judge found that even if an objective jurisdictional precondition was to be discerned from s 6(1) of the Coastal Management Act, the appellant’s grounds of review must fail because, even on Reysson’s case, the area mapped as “coastal wetlands” was land which either displayed the specified characteristics or adjoined such land.

40. [91]

    I have also concluded that the primary judge was correct in paragraphs [129] and [130]. Even on the assumption that s 6(1) of the Coastal Management Act created an objective jurisdictional fact, the fact in question is whether the area identified as the “coastal wetlands and littoral rainforests area” is either land having the characteristics of “coastal wetland” or land adjoining such land. As I explained at the outset, Reysson accepts that a portion of the Reysson Land displays the requisite characteristics of “coastal wetland”: see the map at [8] above. Even on Reysson’s case, all of the mapped land adjoins such land. The appellant’s challenge to the validity of the Coastal Management SEPP based on non-satisfaction of a jurisdictional fact fails on this alternative basis.

41. [92]

    The primary judge was correct to reach the conclusions in paragraphs [129] and [130]. The appellant’s arguments on appeal erroneously contend that the Coastal Wetlands and Littoral Rainforests Area Map is to be read as if it specifically identified:

    1. (1)

       the area marked as “coastal wetlands”, as shown on the Coastal Wetlands and Littoral Rainforests Area Map, as being land which displays the hydrological and floristic characteristics of coastal wetlands; and

    2. (2)

       a “proximity area for coastal wetlands”, as shown on the Coastal Wetlands and Littoral Rainforests Area Map, being the land which “adjoins” coastal wetlands.

42. [93]

    This is to confuse two different concepts. The appellant’s principal argument is that the jurisdictional fact created by s 6(1) of the Coastal Management Act permits mapping of “land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests and land adjoining those features”. On the assumption that there is such a jurisdictional precondition, the precondition must be read as a whole. If any given area of land fits the description, because it either displays the specified characteristics or comprises land adjoining land displaying those features, then on the appellant’s case it can legitimately form part of the identified coastal wetlands and littoral rainforests area. But that is the only constraint imposed by the threshold precondition. It says nothing about how the relevant SEPP might then regulate matters within that area, including by dealing with particular sub-areas within the coastal wetlands and littoral rainforests area. One function of the Coastal Wetlands and Littoral Rainforests Area Map, in terms of identifying the coastal wetlands and littoral rainforests area for the purposes of s 6 of the Coastal Management Act, is to identify a total area as the “coastal wetlands and littoral rainforests area”.

43. [94]

    The particular map which has been adopted by the Coastal Management SEPP identifies the sub-areas of “coastal wetlands” and “proximity area for coastal wetlands”. It does not follow that the first sub-area is to be construed as being linked to one part of the jurisdictional precondition, whereas the second sub-area is to be construed as being linked to another part. That does not follow either from the nature of the provisions or from the form of the map. These are legislative choices, not classifications driven by the asserted jurisdictional precondition.

44. [95]

    The argument developed by the appellant is built on the flawed foundation that the Coastal Wetlands and Littoral Rainforests Area Map purported to map that land which displayed the hydrological and floristic characteristics of wetlands and then proceeded to separately map the land “adjoining” such features as the “proximity area”. An area identified on the map as either “coastal wetland” or “proximity area” could legitimately include land which, though not itself displaying the hydrological and floristic characteristics of a wetland, adjoined such land. As the map reproduced at [8] above shows, there is no sound basis to infer that the mapping proceeded on an “inherently flawed” understanding of what areas adjoined other areas.

45. [96]

    The appellant’s submissions about the different ways in which “adjoining” has been construed in other contexts provide no support for its position in the present case. The appropriate starting point in the analysis is to consider the outer boundary of the mapping of the Reysson Land, because this marks out the area that was being identified as being within the coastal wetlands and littoral rainforests area. All of the land within this boundary, even on the narrowest version of Reysson’s own case, either displayed the hydrological and floristic characteristics of wetlands (being all the blue and patches of blue) or adjoined such features. There is no meaning of “adjoining” in the present context which is narrow enough to avoid this conclusion.

46. [97]

    I would reject grounds 1-8 of the notice of appeal.

Ground 9: Proportionality

1. [98]

   The appellant’s argument on ground 9 turned on the interpretation of the phrase “land adjoining those features” in s 6(1) of the Coastal Management Act for the purpose of determining whether the asserted jurisdictional fact in that section was met.

2. [99]

   The appellant submitted that the identification of land “adjoining” coastal wetlands was required to be reasonably and appropriately adapted to achieving the objects and aims of the Coastal Management Act and the Coastal Management SEPP. If not, it was submitted that it would lack proportionality.

3. [100]

   The appellant adduced expert evidence about whether the approach adapted in designating the “proximity area for coastal wetlands” of mapping a uniform distance of 100 metres from the identified wetland was reasonably and appropriately adapted to achieving the aims and objectives. The primary judge rejected that evidence as irrelevant.

4. [101]

   The appellant submitted that the primary judge should have considered that expert evidence and used the evidence to inform the application of s 6(1) in this case. The appellant submitted that the primary judge should have found that the additional mapping of “adjoining” land needed to be directly related and proportionate to the protection of the areas with those characteristics.

Consideration – ground 9

1. [102]

   As I have explained in addressing ground 8, the appellant’s argument in relation to ground 9 involves the assumption that the “proximity area” in the Coastal Wetlands and Littoral Rainforests Area Map corresponds in meaning to “adjoining” land in s 6(1) of the Coastal Management Act. As I have said, I do not accept that submission.

2. [103]

   In any event, the appellant’s contention that the 100 metre zone mapped as “proximity area” was not reasonably appropriate and adapted to serving the objects of the Coastal Management Act and the Coastal Management SEPP pays insufficient regard to whether this area serves the objects of the Coastal Management Act. I reject the appellant’s reliance upon the conclusions of its experts that 40 metres from land displaying the relevant characteristics was an appropriate “proximity area”. The personal preference of these experts about what they think is an appropriate “buffer” do not address proportionality according to the standard of legal validity.

3. [104]

   There is no basis to conclude that the Coastal Management SEPP is disproportionate in any sense to the objectives of the Coastal Management Act, the Environmental Planning and Assessment Act or the Coastal Management SEPP. There is nothing unreasonable or disproportionate about the technique adopted in the Coastal Management SEPP of identifying a proximity area, or buffer, around areas identified as “coastal wetlands”. The use of that proximity area has to be understood in the context of the Coastal Management SEPP as a whole and the role that designating certain land as “proximity area” has in terms of engaging certain development controls: see cl 11 of the Coastal Management SEPP.

4. [105]

   The use of a proximity area should also be understood in the context of a State-wide map. The technique of imposing a generic proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of both the Environmental Planning and Assessment Act and the Coastal Management Act. This is particularly so in circumstances where it is used to trigger an analysis of adverse development impacts. This permits the specific factual circumstances of any mapped area to be considered in the context of a particular development application.

5. [106]

   Ground 9 should be rejected.

Ground 10: Map not before the Governor

1. [107]

   The appellant submitted that the power to make a SEPP under the Coastal Management Act is reposed in the Governor. Accordingly, it must be the Governor who identifies the relevant area by making the SEPP, not the Minister. In this case, the appellant submitted that the Governor did not do so.

2. [108]

   The appellant submitted that the evidence demonstrated that at no stage did the Governor approve the Coastal Wetlands and Littoral Rainforests Area Map. Instead, it was the Minister.

Consideration – ground 10

1. [109]

   There is no factual dispute about what occurred in relation to the process of the Governor making the Coastal Management SEPP. The appellant’s argument proceeds from an inaccurate description of the way in which the Governor, in making the Coastal Management SEPP, “identified” the coastal wetlands and littoral rainforests area by adopting the Coastal Wetlands and Littoral Rainforests Area Map that had been approved by the Minister. It is a false issue whether or not the Governor “approved” the Coastal Wetlands and Littoral Rainforests Area Map.

2. [110]

   As I said at the outset, the power of the Governor to make a SEPP arose under s 3.29 of the Environmental Planning and Assessment Act. Having regard to the terms of s 6(1) of the Coastal Management Act, one of the outcomes that could be achieved by a SEPP was to “identify” land to comprise the coastal wetlands and littoral rainforests area for the purposes of the Coastal Management Act. The Governor achieved this by making the Coastal Management SEPP. This is because the Coastal Management SEPP identifies the land which comprises the coastal wetlands and littoral rainforests area. It does so explicitly through cl 6. Clause 6(2) provides that the coastal wetlands and littoral rainforests area is the land identified as such by the Coastal Wetlands and Littoral Rainforests Area Map.

3. [111]

   Clause 8(1) of the Coastal Management SEPP provides that a reference to a map is a reference to the relevant map of that name which has been “approved by the Minister when the map is adopted”. Contrary to the appellant’s submission, the identification of land is thereby achieved by the Coastal Management SEPP, at the moment the SEPP is made, through the adoption of a specific pre-existing map which has already been, at the time of its adoption, approved by the Minister.

4. [112]

   Nothing in the Environmental Planning and Assessment Act or the Coastal Management Act required the Governor to identify land as the coastal wetlands and littoral rainforests area through any particular process of “approval”. It was open to the Governor to make an instrument which identified land through the device of adopting by reference a map which had been approved by the Minister. There is no dispute that the Minister had in fact approved the Coastal Wetlands and Littoral Rainforests Area Map which the Governor then adopted in making the Coastal Management SEPP. Nor is it relevant to search for a statutory power on the part of the Minister to approve a map. The Minister’s approval of a map assumed no legal significance until the Governor chose to make a SEPP which adopted that approved map by reference. No question of delegation of the Governor’s power arises.

5. [113]

   There is nothing in the Environmental Planning and Assessment Act or the Coastal Management Act that required the Governor to have regard to, approve or do anything at all in relation to making the Coastal Wetlands and Littoral Rainforests Area Map.

6. [114]

   The Governor’s power is to make an environmental planning instrument for the purposes of environmental planning by the State: s 3.29 of the Environmental Planning and Assessment Act. Apart from requiring the prior recommendation of the Minister administering the Coastal Management Act (s 10(2)), about which there was no complaint by the appellant, the Coastal Management Act did not impose any conditions on the process by which the Governor may make a SEPP that identifies a coastal management area. The only requirement is that the SEPP which is made by the Governor must “identify” the area. Contrary to the appellant’s submissions, the power to identify an area in this way does not carry with it an implication that the Governor must have a particular state of mind or satisfaction about the area being so identified.

7. [115]

   Ground 10 has not been made out.

Conclusion and orders

1. [116]

   For the foregoing reasons I propose the following orders:

   1. (1)

      Appeal dismissed;

   2. (2)

      Appellant to pay the costs of the respondent.