NSW Government introduces legislation to address Bowdens Silver Mine decision

The NSW Court of Appeal’s decision in Bowdens found that ‘enabling’ infrastructure for State significant development (SSD) needed to be assessed as SSD (rather than under a separate planning pathway). 

The decision created considerable uncertainty for proponents of SSD, particularly where projects may have already ‘carved out’ certain works to be assessed under alternate planning pathways. 

The proposed amendments to the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) will introduce a process whereby the Planning Secretary can determine whether or not development must be assessed as SSD.

Snapshot

• In August 2024, the Court of Appeal found that a transmission line for a proposed mine was not part of a ‘single proposed [mining] development’.
• This had the effect of requiring the transmission line to be assessed as SSD, rather than under Division 5.1 of the EP&A Act (due to the operation of section 4.38(4) of the EP&A Act).
• The decision had potentially significant implications for SSD projects (which commonly require ancillary or enabling infrastructure such as transmission lines or road upgrades, which are assessed under separate planning pathways).  
• The NSW Government has now introduced legislation in response to the decision, which will allow the Planning Secretary to determine that particular development does or does or form part of a ‘single proposed development’.

Factual background

Bowdens Silver Pty Ltd applied for, and obtained, SSD consent for an open cut silver, lead and zinc mine (Project).

The assessment documentation for the Project (including the Environmental Impact Statement (EIS)) provided that a transmission line would be required in order for the Project to operate. However, the EIS noted that the transmission line would be the subject of a separate assessment under Division 5.1 of the EP&A Act.

Bingman Catchment Landcare Group Incorporated commenced judicial review proceedings challenging the grant of the consent on the basis that the Independent Planning Commission (IPC) had failed to assess the likely impacts of the transmission line.

A key issue in the proceedings was the operation of section 4.38(4) of the EP&A Act, which provides that if part of a ‘single proposed development/ is SSD and requires consent, but another part of the development is permissible without consent, Division 5.1 will not apply. This means that the part of the development which was otherwise permissible without consent will require development consent.

First instance decision – the transmission line was not part of the ‘single proposed [mining] development’

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Limited [2024] NSWLEC 17

At first instance, the Land and Environment Court (LEC) held that the transmission line was not part of the ‘single proposed [mining] development’.

Noting that the phrase ‘single proposed development’ was not defined in the EP&A Act, the LEC sought to derive its meaning from the statutory text, context and purpose of the section. The LEC found, amongst other things, that it was a matter for proponents to determine the nature and scope of a development application. The Court found that the EP&A Act does not dictate that every part of an SSD project must be in a single assessment (for example, the EP&A Act allows for concept approvals).

The LEC also found that because the transmission line route had not yet been determined, the IPC was not required to consider its ‘likely impacts’ in accordance with section 4.15 of the EP&A Act. The potential impacts of the transmission line were ‘speculative’, absent the identification of a proposed route (see [48]).

Appeal decision – the transmission line was part of the ‘single proposed [mining] development’

Bingman Catchment Landcare Group Incorporated v Bowdens Silver Pty Ltd [2024] NSWCA 205

The Court of Appeal overturned the LEC’s decision, finding that:

• the transmission line was a part of a ‘single proposed development’ for the purposes of section 4.38(4) of the EP&A Act; and
• as the proposed mine would require electrical power, the likely impacts of the transmission line were a mandatory consideration pursuant to s 4.15(1)(b) of the EP&A Act.

The Court of A[peal disagreed with the LEC’s construction of section 4.38(4) and stated that its purpose was instead:

‘… to require that the IPC, as the consent authority under Div 4.7 for [SSD], [to] be the consent authority for development that would not otherwise require development consent under Div 4.7, if it is part of a single proposed development that does require such consent’: [61].

However, this construction of section 4.38(4) first assumes the existence of a ‘single proposed development’. It is not apparent from this reasoning how the Court of Appeal resolved that the transmission line was part of a ‘single proposed development’.

The Court of Appeal found that the transmission line was considered ‘integral to the operation of the mine’ (at [54]). However, the Court did not address the LEC’s reasoning that such a construction of section 4.38(4) would be to require the consent authority to determine whether every relevant integral or necessary part of a proposal has been included in the development application.

Proposed legislative amendments

On 16 October 2024, the NSW Government introduced the Environmental Planning and Assessment Amendment (State Significant Development) Bill 2024 (NSW).

The Bill proposes amendments to section 4.38 so that:

• the Planning Secretary may determine that particular development does or does not form part of a ‘single proposed development’;
• section 4.38(4) does not apply to development that the Planning Secretary has determined does not form part of a single proposed development; and
• the Environmental Planning and Assessment Regulation 2021 (NSW) (EP&A Regulation) may provide for the form and procedure for making such a determination (which may include public consultation), and the circumstances in which such a determination may be made.

Amendments to the EP&A Regulation are yet to be released.

The Bill also introduces a ‘validation’ provision which provides that:

‘Anything done or omitted to be done before the commencement of the amending Act that would have been valid but for the operation of this Act, section 4.38(4) is validated.’

However, the validation provisions will not render valid a consent that has already been declared by a Court to be invalid.

The second reading speech for the Bill notes that the validation provisions are intended to protect SSD applications ‘that have already been determined, on the basis that the offsite enabling infrastructure will be assessed via the alternative planning pathway under the [EP&A Act]’.

The Minister for Planning went on to say that:

‘[t]he bill’s validation provision is intended to protect and validate any State significant development consents and offsite enabling infrastructure, which have not been challenged on the basis of the NSW Court of Appeal decision in Bowdens, before the commencement of this bill, if made.’

More generally, the second reading speech also identified that:

• the Bill was not intended to overturn the Court of Appeal’s decision;
• however, it was common practice prior to Bowdens to have enabling infrastructure assessed under an alternate pathway, and that needing to assess this infrastructure as SSD could present many practical difficulties; and
• there are up to 60 SSD applications currently under assessment (worth approximately $50 billion) and 21 projects which have been determined, that may be affected by the Bowdens decision.

Implications for proponents

• If a project has already been granted SSD consent (and has not been challenged), it will have the benefit of the validation provisions.
• If a project has not already received consent, an application may need to be made to the Planning Secretary to determine whether enabling or ancillary works are required to be assessed as SSD (or can be assessed under alternate planning pathways).
• While the Bill clarifies the uncertainty created by the Court of Appeal’s decision, it will likely add additional time and expense to SSD applications where enabling or ancillary infrastructure is proposed to be assessed under a separate planning pathway.
• As noted in the second reading speech, the amendments do not seek to overturn the Court of Appeal’s decision. In that regard, it is important to note that in deciding Bowdens, the Court applied Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349, finding that environmental impacts of ancillary infrastructure need to be assessed (even if they might be part of a separate scope of works). The decision reinforces the importance of undertaking a comprehensive cumulative impact assessment of all aspects of a project.

By Peter Briggs (Partner), Brigitte Rheinberger (Senior Associate), James Donaldson (Solicitor) and Maddie Gelagin (Paralegal).