Posted on November 4, 2015 by Frances Tse

Approving the Outer Parameters of State Significant Infrastructure

The Land and Environment Court has recently stated in Community Action for Windsor Bridge Inc v NSW Roads and Maritime Services & anor [2015] NSWLEC 167 that State significant infrastructure may be described and approved with considerable generality and flexibility.

The Windsor Bridge is the oldest existing crossing on the Hawkesbury River. One of the bridge’s approach roads runs through heritage listed Thompson Square, one of Australia’s oldest surviving public squares, laid out by Governor Macquarie in 1810.

The Windsor Bridge replacement project (‘Project’), involves the removal of the Windsor Bridge and the construction of a new replacement bridge and approach roads and the realignment and modification of access roads.

The Project was declared to be State significant infrastructure within the meaning of Part 5.1 of the Environmental Planning and Assessment Act 1979 (‘EPA Act‘) and was assessed and approved by the Minister for Planning under that Part.

One of the conditions of the approval required the RMS to submit a Strategic Conservation Management Plan (‘CMP’) to the Director-General for approval. The CMP must, among other things:

• identify the heritage value of Thompson Square,
• specify mitigation measures for Thompson Square, and
• set out changes to the detailed design of the Project to mitigate the heritage impacts.

One of the arguments put forward by Community Action for Windsor Bridge in its challenge to the approval for the Project was that because the approval allowed changes to the detailed design of the Project through the CMP the approval lacked finality as the ultimate form and appearance of the Project was not discernible from the approval.

If the Project was the subject of a development application under Part 4 of the EPA Act, then the applicant may have succeeded in its argument because there is a line of cases which hold that a development consent under that Part which is not final and certain may not be valid (see Mison v Randwick Municipal Council (1991) 23 NSWLR 734 and Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277).

The cases in respect of finality of development consents were not considered to be directly relevant because of the different wording in Part 4 and Part 5.1 of  the EPA Act. In particular, Part 4 requires consent to be granted to ‘the application’ either unconditionally or subject to conditions, or refused. Part 5.1, and in particular s115ZB, permits the granting of approval to the carrying out of the infrastructure with modifications as determined by the Minister.

The Court held that in respect of State significant infrastructure under Part 5.1 of the EPA Act:

• there is no requirement for the infrastructure to be defined ‘to the last nut and bolt’,
• State significant infrastructure may be described and approved with considerable generality and flexibility,
• an approval under s115ZB defines the outer parameters of the proposed development, that is, the boundary between what is permissible and what remains prohibited, and
• it is possible for matters of detailed design to be left for later determination provided the details are within the defined outer parameters.

The Court went as far to say that there would only have been a failure to properly approve the Project if it was not possible to discern from the terms of the approval the outer limits of what was permissible. In this case, the Court considered that the ‘outer parameters’ of the Project were a new bridge in a specified location which was approached from each side via a specified route.

While this case may give some security to the Minister in imposing similar conditions on other State significant infrastructure approvals, it would be reasonable to assume that minds may differ as to the level of generality that may be permissible when defining the ‘outer parameters’ of a project.

The case can be found here.