Posted on August 22, 2024 by Megan Hawley and Thuy Pham 2

UPDATE: Court of Appeal overturns LEC decision on ‘single proposed development’

In April 2024 we wrote about a decision in the Land and Environment Court concerning a challenge to a development consent for an open cut silver, lead and zinc mine, which was State significant development (SSD). The consent was challenged on the basis that no assessment had been undertaken of the impacts of a new 66kV electricity transmission line required for the mine (LEC Decision).

The background and issues considered in the case can be found in our original post here.

The LEC Decision has been overturned by the Court of Appeal.

In the LEC Decision, Duggan J had held that the development consent was valid because:

1. The transmission line was not part of the ‘single proposed development’ under s4.38 of the Environmental Planning and Assessment Act 1979 (EPA Act); and
2. The impacts of the transmission line were not required to be considered as ‘likely impacts of the development’ under 4.15 of the EPA Act

In arriving at her conclusion, Duggan J accepted that:

1. When the development application (DA) was lodged for the project, the precise alignment of the 66kV transmission line was still under discussion with landowners and as such the route of the transmission line remained uncertain.
2. It is not for the consent authority to determine whether every integral or necessary part of a proposal has been included in the DA. In other words, the consent authority need not look beyond the confines of the DA, which, in this case, did not include the transmission line.
3. The Decision of the Independent Planning Commission to grant consent to the project was on the basis that the 66kV transmission line would be the subject of separate assessment under Pt 5 of the EPA Act, and accordingly need not be assessed in the determination of the project.

In the Court of Appeal, White JA, with whom Adamson JA agreed, held that:

• In relation to the interpretation of the phrase ‘single proposed development’ ins4.38(4):
  • The transmission line was part of a single proposed development which required the IPC’s consent under s 4.38.
• In relation to the ‘likely impacts’ issue under s4.15(1):
  • The IPC and the Department of Planning were misguided in believing the transmission line would be subject to an environmental assessment under Division 5.1of the EPA Act, as a 66kV transmission line was exempt development which is excluded from the application of Division 5.1 of the EPA Act.
  • Even if the transmission line was not part of the DA, as the proposed mine will require electrical power, the likely impacts of the transmission line providing the power were a mandatory consideration for the IPC in considering the likely effects of the mine itself, pursuant to s 4.15(1)(b) of the EPA Act. The developer 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 DA.
  • There was nothing to show that at the time of the development consent (which was some 2 years after lodgment of the original DA) that the alignment remained undetermined.

The Court made orders declaring that the development consent for the mine was void and of no effect.

The full text of the Court of Appeal’s judgment can be found here: Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited [2024] NSWLEC 17

If you have any questions regarding this article, please contact Megan Hawley on 02 8235 9703 or Thuy Pham on (02) 8235  9731.