A Court of Appeal decision of Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd has just redrawn the map for how State significant developments must be assessed—completeness is a non-negotiable.

The Law

The Court of Appeal in New South Wales recently handed down a significant decision that reinforces the rigorous standards required for the assessment of State significant developments under the Environmental Planning and Assessment Act 1979 (EPA Act).

The judgment of Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205 focused on the interpretation and application of Section 4.38(4) of the EPA Act, which mandates that all components of a State significant development be considered as a single, unified proposal. This includes any necessary infrastructure, such as transmission lines, that are integral to the operation of the main project.

At the heart of the case was the Bowdens Silver Project, a proposed open-cut silver, lead, and zinc mine located near the village of Lue in the Mid-Western Regional Council area. Bowdens Silver Pty Ltd had sought and obtained development consent for the mine from the Independent Planning Commission (IPC), but notably that consent excluded a critical piece of infrastructure — a 66kV transmission line required to supply electricity to the mine — from its development application. The company argued that this transmission line would be subject to a separate application under Part 5 of the EPA Act, which deals with activities that generally do not require development consent under Part 4 of the EPA Act.

The Bingman Catchment Landcare Group Incorporated (BCLG), however, challenged this approach, arguing that the transmission line was not merely an ancillary or subsequent development but was in fact an integral part of the single proposed development that included the mine. Therefore, it should have been included in the original development application and subjected to environmental impact assessment as part of the overall project.

The Facts

The dispute arose from the development application lodged by Bowdens Silver in May 2020, which included an environmental impact statement (EIS) detailing the mine’s operations but omitting the proposed 66kV transmission line. The EIS stated that the power line, necessary for the mine’s operations, would be the subject of a separate application under Part 5 of the EPA Act. Bowdens argued that this approach was valid because the exact alignment of the transmission line had not been finalised and was still under negotiation with landowners.

The IPC, acting on the advice of the NSW Department of Planning and Environment, proceeded to assess and eventually grant consent for the mine without considering the environmental impacts of the transmission line, relying on the understanding that these impacts would be addressed in the future under a separate application.

BCLG filed for judicial review of the IPC’s decision in the Land and Environment Court, arguing that the omission of the transmission line from the development application constituted a legal error, as it failed to consider the cumulative environmental impacts of the entire project. The Land and Environment Court initially dismissed BCLG’s application, leading to an appeal to the Court of Appeal.

What the Court of Appeal determined

The Court of Appeal overturned the Land and Environment Court’s decision, siding with BCLG. The Court found that the IPC had indeed committed a legal error by failing to consider the environmental impacts of the transmission line as part of the overall assessment of the Bowdens Silver Project. The Court emphasised that under Section 4.38(4) of the EP&A Act, all components of a State significant development, including any associated infrastructure, must be treated as part of a “single proposed development.” This means that even if certain elements of a project, like the transmission line in this case, are proposed to be handled under separate applications, they must still be considered in the initial development application if they are integral to the operation of the main project.

Justice White, delivering the leading judgment, noted that the transmission line was essential to the mine’s operation and that its environmental impacts were not merely ancillary but directly related to the project’s overall impact. The Court declared the IPC’s development consent void and of no effect, restraining Bowdens Silver from proceeding with any work under the now-invalid consent.

What This Means for the Assessment of Development Applications

This judgment has significant implications for how State significant developments are assessed in New South Wales. Here are five key takeaways:

1. Holistic Assessment Requirement – Consent authorities must adopt a holistic approach when assessing State significant developments. This decision makes it clear that all integral components of a project, including any necessary infrastructure, must be included in the initial development application and subjected to environmental impact assessment. This ensures that the cumulative effects of the entire project are thoroughly examined, preventing piecemeal assessments that could overlook significant environmental impacts.
2. No Segmentation of Projects – The Court’s decision reinforces that assessment cannot occur in a segmented manner and State significant projects must be the subject of a comprehensive environmental assessment. All relevant impacts must be considered from the outset.
3. Importance of an EIS – Environmental Impact Statements must be comprehensive and accurately reflect all aspects of the proposed development, including any ancillary infrastructure. In this case, the omission of the transmission line from the EIS was a critical factor in the Court’s decision to void the development consent. An EIS must cover all foreseeable impacts to avoid legal challenges and potential delays.
4. Increased Scrutiny on Infrastructure Projects – This judgment may lead to increased scrutiny on infrastructure components of major developments, particularly those that are essential for the operation of the main project. Consent authorities are now more likely to demand that all infrastructure, even if planned for future applications, be included in the initial assessment to provide a full picture of the project’s environmental footprint.
5. Legal and Operational Implications – this judgment highlights the legal and operational risks of attempting to segment projects or defer the assessment of critical infrastructure. The decision to void the development consent in this case underscores the potential consequences of such strategies with respect to State significant development, including significant project delays and additional costs. Applications must have a clear strategy that accounts for all aspects of a project to ensure compliance with the EPA Act to avoid legal challenges

Further reading

A full copy of the judgment can be accessed below.