Consent authorities in NSW might have to consider the likely impacts from other stages of a development, not just the one it is responsible for approving.

If your development proceeds in different stages, over different parcels of land and under different parts of the Environmental Planning and Assessment Act 1979 (NSW) (Planning Act), does the consent authority have to consider all of the likely impacts of the development as a whole, or just those of the stage it is considering? The NSW Court of Appeal recently considered this in Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349.

The multi-stage development

Liverpool City Council granted development consent for the construction and operation of a school on an undeveloped area of land. Access to the school was to be given via an undeveloped road, which required a bridge across a public reserve and waterway.

The bridge was to be constructed on a public reserve vested in the Council and did not require development consent under Part 4 of the Planning Act and was to be subject to assessment under Part 5 of the Planning Act.

The development application originally envisaged a seven-staged development to take place over seven years, with the roadway and bridge being completed in stage 4. The statement of environmental effects that accompanied the development application for the school referred to the bridge.

The Council gave development consent. As a condition of approval, it required the connecting road to be completed prior to occupation of stage 1. The construction of the bridge would require clearing approximately 1,000 square metres of bushland, which largely comprised "endangered ecological community, River-Flat Eucalyptus Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner bioregions".

What should the council have considered?

Under section 79C(1) of the Planning Act a consent authority must "take into consideration such of the following matters as are of relevance to the development the subject of the development application". One of these matters is "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality"

Based on the answer to an interrogatory, in which the Council stated that it did not consider the likely impacts of the development on the River-Flat Eucalyptus Forest, the Court of Appeal held that the Council did not consider the impact of the bridge.

But was the impact of the construction of the bridge a matter that the Council was required to take into account when determining the development application under Part 4?

The Court held:

  • "the likely impacts of that development" are those flowing from the development the subject of the development application. The answer to the question of how remote a "likely" impact must be to exclude it from section 79C(1)(b) requires an evaluative judgment which will often not involve any "bright-line-boundary".
  • as remoteness from the development increases, impact is likely to decrease, until it no longer has practical significance in terms of approving or refusing to approve a development application. Furthermore, the likelihood of a particular impact may diminish with remoteness.
  • in determining whether there are "direct and indirect impacts", the Court of Appeal followed the Federal Court's analysis in the Nathan Dam case: impact is "not confined to direct physical effects of the action on the matter protected by the relevant provision… it includes effects which are sufficiently close to the action to allow to be said, without restraining the language, that they are, or would be, the consequence of the action on the protected matter."
  • there was no basis to exclude environmental impacts which have been or are likely to be considered in relation to a separate development application required for that activity.  

The Court of Appeal upheld the primary judge's finding that the consent was invalid because the Council failed to consider the likely environmental impacts of the construction of the bridge.

What does this case mean?

The case has implications not only in respect of proposals that are carried out on different parcels of land and which are sought to be separately assessed under Part 4 and Part 5, but also proposals that are carried out on different parcels of land and which are sought to be separately assessed under Part 5, where the impacts of one proposal is "likely" to have an impact on the other proposal.

Importantly, in respect of Part 5, clause 228 of the Planning Regulation provides that one of the factors to be taken into account when assessing likely impacts of an activity on the environment is, "any cumulative environmental impacts with other existing or likely future activities" (clause 228(2)(o)).