Land and Environment Court New South Wales

• Medium Neutral Citation: Williams v Minister for Planning and Anor (No 2) [2011] NSWLEC 62
• Hearing dates: 28 February 2011, 1 March 2011, 2 March 2011
• Decision date: 08 April 2011
• Jurisdiction: Class 4
• Before: Pain J

Decision

10/40499

1. The Applicant's summons filed on 28 June 2010 dismissed.

2. Costs reserved.

11/40135

1. The Applicant's summons filed on 22 February 2011 dismissed.

2. Costs reserved.

• Catchwords: Judicial review - whether approval to modify gold mine consent ultra vires - whether failure to consider relevant considerations in granting approval - whether jurisdictional fact raised in s 75W power to modify in EPA Act
• Legislation Cited: Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3, s 5(1)(f), s 5(1)(h), s 5(3); Environmental Planning and Assessment Act 1979 s 75H, s 75I, s 75J, s 75W,s 96, s 123, s 124, Div 1 Pt 3A, Div 2 Pt 3A, Div 5, Pt 3A; Environmental Planning and Assessment Regulation 2000 cl 8J(8); Environmental Planning and Assessment (Amendment) Miscellaneous Regulation 2010 Sch 1; Interpretation Act 1987 s 3(1), s 6, s 31; Migration Act 1958 (Cth) s 476(1)(g) (repealed), s 476(4) (repealed); Protection of the Environment Administration Act 1991 s 6(2)
• Cases Cited: Anderson v Director-General, Department of Environment and Conservation [2006] NSWLEC 12; (2006) 144 LGERA 43; Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400; Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733; Boral Resources (Country) Pty Ltd v Clarence Valley Council; Cemex Australia Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134; Brown v Brook (1971) 125 CLR 275; Buresti v Beveridge (1998) 88 FCR 399; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50; Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189; (2010) 174 LGERA 446; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349; Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442; Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120; Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258; Kennedy v NSW Minister for Planning [2010] NSWLEC 240; Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2009] NSWLEC 109; Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67; Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323; Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423; Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230; Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363; Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55; Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251; Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204; Williams v NSW Minister for Planning (No 3) [2010] NSWLEC 204; Williams v NSW Minister for Planning (No 4) [2010] NSWLEC 222
• Texts Cited: Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action, 4th ed (2009) Thomson Reuters
• Category: Principal judgment
• Parties: Neville "Chappie" Williams (Applicant)
• Representation: Mr A Oshlack (agent) (Applicant); Mr M Leeming SC with Ms A Mitchelmore (First Respondent); Mr N Williams SC with Mr C Ireland (Second Respondent); Crown Solicitor's Office (First Respondent); Blake Dawson (Second Respondent)
• File Number(s): 40499 of 2010; 40135 of 2011

Judgment

1 Mr Williams (the Applicant) seeks declarations in two separate proceedings heard together that two modifications to the development consent for the Cowal Gold Mine granted to Barrick (Cowal) Ltd (Barrick), the Second Respondent, by the Minister for Planning, the First Respondent (the Minister), are invalid. Consequential orders for relief are also sought. These are judicial review proceedings in Class 4 of the Court's jurisdiction alleging breaches of the Environmental Planning and Assessment Act 1979 (the EPA Act). Any person may take action to enforce a breach of the EPA Act under s 123. The Applicant states that he is a Wiradjiri traditional owner. He is represented by an agent, Mr Oshlack, who is not legally qualified and has run a number of cases in this Court. Evidence in one proceedings is evidence in the other.

2 In the first proceedings (10/40499) the Notice of Modification was issued on 10 March 2010 (Mod 6). The second proceedings (11/40135) concern a more recent Notice of Modification issued on 17 January 2011 (Mod 9).

Background

3 Development consent DA 14/98 was granted on 26 February 1999 for the construction of an open cut gold mine, waste supply pipeline and borefield and associated facilities on land near Lake Cowal. The approval was for 21 years and allowed mining and processing for 13 years consisting of 8 years of mining and 5 years of processing in condition 1.2(ii). On 25 March 2008 Barrick lodged a request to modify the consent pursuant to s 75W of the EPA Act with the Minister (E42 Modification Request). The Director-General's Environmental Assessment Requirements (DGEAR) were issued on 14 April 2008. The Applicant commenced proceedings challenging the validity of that modification request. In Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204, Biscoe J held that the request for modification did not come within the meaning of s 75W. In Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 733 the Court of Appeal set aside that decision on 3 September 2009.

4 In the meantime, on 11 February 2009 Mod 7 was approved by the Minister's delegate under s 96(1A) of the EPA Act to increase the area of the open pit from 70 ha to 95 ha, increase the total quantity of waste rock, increase the height of parts of the northern and southern emplacements, reduce the height of sections of the perimeter waste emplacement and amend certain conditions contained in the mine's Environmental Protection Licence. Modification 8 was approved under s 96(1A) by the Minister's delegate on 28 August 2009 to increase the height of the balance of the northern and southern waste emplacements, increase the total northern waste emplacement, realign a small portion of the up-catchment diversion system around the northern waste emplacement, implement a cyanide destruction method, and establish a borefield and associated infrastructure next to the mine at the ground surface of Lake Cowal to access saline groundwater from an aquifer beneath Lake Cowal. (Description obtained from [35] and [50] of Williams v Minister for Planning (No 3) [2010] NSWLEC 204 in which the Applicant challenged the validity of Mod 7 and Mod 8 .)

5 Barrick submitted the E42 Modification Modified Request (Modified Request) on 28 October 2009. This was approved as Mod 6 by the Minister pursuant to s 75W of the EPA Act on 10 March 2010. It allows an increase in production of ore and extends the life of the mine to 2024. The proceedings 10/40499 challenging the approval of Mod 6 were commenced on 28 June 2010. On 17 January 2011 the Minister's delegate approved Mod 9 reducing the life of the mine to 2019. Further proceedings (11/40135) were commenced challenging that decision and the Court ordered that these be heard together.

6 A more detailed chronology reduced from that supplied by Barrick (events not disputed) follows:

Date	Event
26 February 1999	Development consent for the Cowal Gold Mine granted by the Minister for Urban Affairs and Planning.
13 June 2003	Mining Lease 1535 (ML1535) granted by the Minister for Mineral Resources.
April 2005	Mining operations commence at the Cowal Gold Mine.
12 March 2008	Minister approves under the then cl 8J(8) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation) to treat the Development Consent as an approval for the purposes of s 75W of the EPA Act.
25 March 2008	Barrick lodges with the Department of Planning the E42 Modification Request pursuant to s 75W of the EPA Act and cl 8J(8) of the EPA Regulation.
14 April 2008	DGEAR for the E42 Modification Request issued by the Director-General for Planning (Director-General).
22 August to 22 September 2008	E42 Modification Request Environmental Assessment (EA) is publicly exhibited.
7 November 2008	Summons filed by the Applicant seeking a declaration that Barrick's E42 Modification Request was not a request for modification within the meaning of s 75W of the EPA Act (08/41118).
17 to 19 December 2008	Hearing of 08/41118.
30 January 2009	Barrick submits to the Minister an application to modify the development consent pursuant to s 96(1A) of the EPA Act, together with a Statement of Environmental Effects (the Mod 7 application).
5 February 2009	Judgment in 08/41118: Williams .
11 February 2009	Department of Planning prepares a report assessing the Mod 7 Application. The Minister's delegate approves Mod 7.
13 February 2009	Orders made in 08/41118, including the declaration sought.
6 March 2009	Barrick appeals that decision in the Court of Appeal.
23 June 2009	Barrick submits to the Minister an application to modify the development consent pursuant to s 96(1A) of the EPA Act, together with a Statement of Environmental Effects (the Mod 8 Application).
1 July 2009	Hearing of Court of Appeal Proceedings.
28 August 2009	Department of Planning prepares a report assessing the Mod 8 Application. The Minister's delegate approves Mod 8.
28 August 2009	Consolidated conditions of the development consent are issued (incorporating Modifications 1 to 5, and 7 to 8).
3 September 2009	Barrick delivered upholding Barrick's appeal and setting aside the Court's orders.
28 October 2009	Barrick submits the Modified Request to the Director-General.
26 November 2009	Applicant files Summons seeking a declaration that Mod 7 and Mod 8 are invalid, void and of no effect, and seeking consequential injunctions (09/40890).
9 February 2010	Minister's delegate signs off on the Director-General's Environmental Assessment Report (Assessment Report) and the Briefing Note to the Minister assessing the Modified Request.
10 March 2010	Minister approves the Modified Request pursuant as Mod 6.
10 March 2010	Consolidated conditions of the development consent (incorporating Modifications 1 to 8).
26 March 2010	Mod 6 is notified in the West Wyalong Advocate .
28 June 2010	Applicant files Summons and Points of Claim (POC) seeking a declaration that Mod 6 is invalid, void and of no effect (10/40499).
13 to 15 September 2010	Hearing of 09/40890.
15 October 2010	Judgment in 09/40890 finds that Mod 8 is invalid and dismisses the challenge to Mod 7: Williams (No 3) .
20 October 2010	Barrick files a Notice of Motion in 09/40890 seeking to vary declaration so that it is limited to remedying the breach identified in judgment.
26 October 2010	Ex tempore judgment 09/40890: Williams v Minister for Planning (No 4) [2010] NSWLEC 222: declaring Mod 8 invalid only insofar as it purported to approve the use of the INCO cyanide destruction method.
22 November 2010	Barrick applies to modify its development consent pursuant to s 75W of the EPA Act and cl 8J(8)(b) of the EPA Regulation (the Mod 9 application).
11 January 2011	Department of Planning prepares an Assessment Report on the Mod 9 application.
17 January 2011	Minister's delegate approves the request as Mod 9.
17 January 2011	Consolidated conditions of the development consent (incorporating Modifications 1 to 9).
22 February 2011	Applicant commences proceedings 11/40135 challenging the validity of Mod 9.

Evidence

7 The parties prepared an agreed tender bundle containing the key documents relating to the development consent and the Mod 6 and Mod 9 applications.

(i) Relevant conditions of the development consent (exhibit A, tab 3) granted for Cowal Gold Mine in 1999 provide:

1.1 Adherence to terms of DA, EIS, SIS etc

The development is to be carried out generally in accordance with the EIS dated 13 March 1998, including the Statement of Intent by North Gold (WA) Ltd, and prepared by Resource Strategies certified in accordance with Section 77(3) of the Act, and all other relevant documentation, including the Applicant's primary submission, and submission in reply to the Commission of Inquiry, as may be modified by the conditions set out herein.

1.2 Period of Approval/Project Commencement

(i) The approval is for a period of 21 years from the date of mine lease approval. However, approval for the mining and processing of ore is for a period of up to 13 years after completion of construction works, unless otherwise agreed by the Director-General. If, at any time, the Director-General is aware of environmental impacts from the proposal that pose serious environmental concerns due to the failure of existing environmental management measures to ameliorate the impacts, the Director-General may order the Applicant to cease the activities causing those impacts until those concerns have been addressed to the satisfaction of the Director-General.

...

3.3 Heritage Assessment and Management

(a) The Applicant shall prior to commencement of construction works:

(i) prepare an archaeology and cultural management plan to identify future salvage, excavation and monitoring of any archaeological sites within the DA area prior to and during development, and to address Aboriginal and European cultural heritage issues. The plan shall be prepared in consultation with NPWS, the Local Aboriginal Land Council, a consultant archaeologist, any other stakeholders identified by NPWS, Bland District Historical Society, BSC, and Lake landholders/residents, and to the satisfaction of the Director-General.

(ii) employ a Cultural Heritage officer approved by the West Wyalong Local Aboriginal Land Council who is to be available on site during construction earthworks; and

(iii) submit to and have approved by the Director-General of NPWS, a Consent to Destroy application under section 90 of the National Parks and Wildlife Act 1974 for Aboriginal archaeological sites that have been identified to be damaged or destroyed as a result of the development prior to consent and/or by the archaeology and cultural management plan.

...

3.6 Site Rehabilitation Management

The Applicant shall carry out rehabilitation of all mine areas in accordance with the requirements of the Mining Operations plan of the DMR (refer condition 2.1), and EIS, particularly Section 5.

There have been a number of amendments to some of these conditions since 1999 including by Mod 6 and Mod 9. Current consolidated conditions of consent were in evidence in exhibit A tab 18.

(ii) ML 1535 dated 13 June 2003 (exhibit A tab 4): condition 1.1 the development is to be carried out generally in accordance with the Environmental Impact Statement (EIS) dated 13 March 1998 (exhibit C).

(iii) Lake Cowal Gold Project Indigenous Archaeology and Cultural Heritage Management Plan prepared by Barrick in October 2003 (exhibit E).

(iv) Barrick lodged the E42 Modification Request dated March 2008 with Department of Planning (exhibit A tab 7).

(v) The DGEAR for the E42 Modification Request dated April 2008 (expiry April 2010) state:

Aboriginal Heritage - including an assessment of the potential Aboriginal heritage impacts of the revised mining operations, and a description of the measures that would be implemented to minimise these impacts.

(vi) Environmental Assessment for Cowal Gold Mine E42 Modification Request dated 20 August 2008 (exhibit D) which sought an extension of mine life of 11 years. Section 4.11 titled Aboriginal Cultural Heritage (p 4-88 - 4-92) stated that of the 20 registered aboriginal heritage sites within ML 1535 three would be affected. This section considers the existing environment, consultation with aboriginal groups, potential impacts, mitigation means and management.

(vii) Modified Request dated October 2009 (exhibit B) lodged with the Department of Planning, includes a description of the Modified Request and an Environmental Assessment (EA). Figure 1-4 shows the Modified Request areas coloured green (105 ha). Section 1.6 is headed Ecologically Sustainable Development (ESD) Considerations and refers to the principles in s 6(2) of the Protection of the Environment Administration Act 1991 which are assessed at p 1-17 to 1-19. There is a description of the Modified Request as extending the life of the mine by two years to 2019 (13 to 15 years) with mining occurring up to year 13 (2017) and ore processing up to year 15 (2019). The amount of ore produced would be 99Mt with 76Mt currently approved. Aboriginal cultural heritage is considered in section 3.11 (p 3-63 - 3-67). The report stated that no registered Aboriginal Cultural Heritage sites will be disturbed. The existing environment consultation, cultural heritage offsets, potential impacts and aboriginal group consultation are referred to.

(viii) Director-General's Assessment Report for the Modified Request prepared in relation to s 75W of the EPA Act is dated February 2010 (exhibit A tab 12). The Director-General concluded in part (at p 308 - 309):

Barrick has developed a biodiversity offset strategy to offset the 30 ha of native vegetation to be cleared for the proposal, and the impact on the Myall Woodland EEC and threatened species. Both DECCW and the Department are satisfied that, subject to he implementation of this biodiversity offset strategy, the proposal can be undertaken in a manner that would improve or maintain the biodiversity values of the locality over the medium to long term.

With regard to other impacts, the Department notes that the existing development consent provides a comprehensive basis for mitigating and monitoring environmental impacts. Where relevant, the Department has recommended conditions that reflect current best practice for operations at the mine.

On balance, the Department is satisfied that the residual environmental and socio-economic impacts of the proposal can be adequately mitigated and/or managed and that the benefits significantly outweigh their costs.

(ix) Relevant changes made to the development consent by Sch 2 of the Notice of Modification 10 March 2010 (Mod 6) (exhibit A tab 13) are as follows:

1. Insert the following definitions in Schedule 2:

...

EA - documentation titled "Cowal Gold Mine E42 Modification

Environmental Assessment" dated August 2008 and the Applicant's response to submissions dated November 2008 (exhibit D), as modified by documentation titled "Cowal Gold Mine E42 Modification Modified Request" dated October 2009 (exhibit B).

Mining Operations - includes all ore extraction, processing and transportation activities carried out on site

...

3. Insert in condition 1.1(a)(ix) the development is to be carried out in accordance with ...

(x) modification application dated 25 March 2008 and supporting EA submitted by Barrick Australia limited; and

(xi) conditions of this consent.

4. Delete condition 1.2(i) of Schedule 2 of the Development consent, period of approval, and replace with the following:

(i) Mining operations may take place until 30 June 2024.

Note: Under this approval, the Applicant is required to rehabilitate the site and perform additional undertakings to the satisfaction of the Director-General and DII(Minerals). Consequently this approval will continue to apply in all other respects other than the right to conduct mining operations until the site has been properly rehabilitated.

(x) Barrick's application for Mod 9 (exhibit A tab 15) sought to modify the development consent by:

a variation to Condition 1.2(i) in Schedule 2 of the Development Consent as follows:

1.2 Period of Approval/Project Commencement

(i) Mining operations may take place until 30 June 2024 (bold indicates struck out) 31 December 2019 ...

This variation would result in a deadline for mining operations of end 2019, which is considered with what was sought and assessed in the E42 Modification -Modified Request EA.

A variation to the definition of "Mining Operations" in the Development Consent as follows:

Mining Operations - Includes all means ore extraction , and processing and transportation activities carried out on site.

(xi) The Department of Planning's Assessment Report for Mod 9 dated 17 January 2011 (exhibit A tab 16 p 644) states in part under Statutory Context:

The proposed modification involves two administrative changes to the consent, one which relates to the duration of mining operations, and the other to the definition of mining operations...these would have negligible effects on the approved mining operations and resultant environmental impacts.

and under Conclusion (exhibit A tab 16 p 646) states in part:

The Department has also taken into consideration previous environmental assessments for the mine, including the EIS and the Commission of Inquiry Report for the original development consent and documents associated with subsequent modification applications and requests. The Department is satisfied that these documents and previous assessments do not have a direct bearing on this modification application (other than as considered above) and that sufficient information to enable the application to be determined has been considered and is either provided or referred to within this assessment report.

Based on this assessment, the Department considers that the proposed modification more consistently reflects the development the subject of the E42 Modification as previously assessed and approved. Given the modification that is proposed to condition 1.2(i) is of a minor administrative nature and would not alter the impacts of the approved development, the Department is satisfied that the impacts of the modification would be negligible.

(xii) Notice of Modification 17 January 2011 (Mod 9) (exhibit A tab 17) amended the development consent as follows:

1. Delete the definition for Mining Operations in Schedule 2 and replace with:

Mining Operations - Includes all ore extraction, ore processing and related transportation activities carried out on site

2. Include in condition 1.1(a) of Schedule 2 the following:

(xi) modification application dated 22 November 2010 and

supporting letter submitted by Barrick Australia Limited; and

(xii) conditions of this consent.

3. In condition 1.2(i) of Schedule 2, Period of approval, delete "30 June 2024" and replace with "31 December 2019".

8 Mr Williams' affidavit dated 14 October 2010 was read in part, including an affidavit dated 13 October 2002 referred to in par 4 in relation to discretion. An affidavit of Mr Williams dated 2 March 2011 was sought to be tendered after the close of the Applicant's evidence and submissions on the third day of the three day hearing. This was submitted to be relevant to the exercise of the Court's discretion. The very late application to rely on this new affidavit was opposed by the Respondents. I did not rule finally that it could not be read but did not allow it to be read at that stage. If discretion in the wide terms submitted by the Applicant's agent becomes relevant following my determination of the legal matters in issue I will revisit whether this affidavit ought be read on the question of discretion only.

Part 3A - Major Infrastructure and Other Projects

9 The two modifications challenged in these proceedings were approved by the Minister and the Minister's delegate under s 75W(4) of the EPA Act, a process enabled by cl 8J(8)(b) of the EPA Regulation as (differently) in force at the relevant approval dates. Section 75W is located in Div 5 of Pt 3A of the EPA Act. Division 1 Pt 3A identifies the kinds of development which can be declared a project to which Pt 3A applies. The development consent granted in 1999 predates the introduction of Pt 3A. The provisions in Pt 3A for the approval of new projects are relevant to the analysis of the issues in this case and are set out below.

10 Division 2 considers environmental assessment requirements for a new project to be considered under Pt 3A. Section 75H "Environmental assessment and public consultation" provides:

(1) The proponent is to submit to the Director-General the environmental assessment required under this Division for approval to carry out the project.

(2) If the Director-General considers that the environmental assessment does not adequately address the environmental assessment requirements, the Director-General may require the proponent to submit a revised environmental assessment to address the matters notified to the proponent.

(3) After the environmental assessment has been accepted by the Director-General, the Director-General must, in accordance with any guidelines published by the Minister in the Gazette, make the environmental assessment publicly available for at least 30 days.

(4) During that period, any person (including a public authority) may make a written submission to the Director-General concerning the matter.

(5) The Director-General is to provide copies of submissions received by the Director-General or a report of the issues raised in those submissions to:

(a) the proponent, and

(b) if the project will require an environment protection licence under Chapter 3 of the Protection of the Environment Operations Act 1997 -the Department of Environment, Climate Change and Water, and

(c) any other public authority the Director-General considers appropriate.

(6) The Director-General may require the proponent to submit to the Director-General:

(a) a response to the issues raised in those submissions, and

(b) a preferred project report that outlines any proposed changes to the project to minimise its environmental impact, and

(c) any revised statement of commitments.

(7) If the Director-General considers that significant changes are proposed to the nature of the project, the Director-General may require the proponent to make the preferred project report available to the public.

Section 75I "Director-General's environmental assessment report" provides:

(1) The Director-General is to give a report on a project to the Minister for the purposes of the Minister's consideration of the application for approval to carry out the project.

(2) The Director-General's report is to include:

(a) a copy of the proponent's environmental assessment and any preferred project report, and

(b) any advice provided by public authorities on the project, and

(c) a copy of any report of the Planning Assessment Commission in respect of the project, and

(d) a copy of or reference to the provisions of any State Environmental Planning Policy that substantially govern the carrying out of the project, and

(e) except in the case of a critical infrastructure project-a copy of or reference to the provisions of any environmental planning instrument that would (but for this Part) substantially govern the carrying out of the project and that have been taken into consideration in the environmental assessment of the project under this Division, and

(f) any environmental assessment undertaken by the Director-General or other matter the Director-General considers appropriate, and

(g) a statement relating to compliance with the environmental assessment requirements under this Division with respect to the project.

Section 75J "Giving of approval by Minister to carry out project" provides:

(1) If:

(a) the proponent makes an application for the approval of the Minister under this Part to carry out a project, and

(b) the Director-General has given his or her report on the project to the Minister,

the Minister may approve or disapprove of the carrying out of the project.

(2) The Minister, when deciding whether or not to approve the carrying out of a project, is to consider:

(a) the Director-General's report on the project and the reports, advice and recommendations (and the statement relating to compliance with environmental assessment requirements) contained in the report, and

(b) if the proponent is a public authority-any advice provided by the Minister having portfolio responsibility for the proponent, and

(c) any findings or recommendations of the Planning Assessment Commission following a review in respect of the project.

(3) In deciding whether or not to approve the carrying out of a project, the Minister may (but is not required to) take into account the provisions of any environmental planning instrument that would not (because of section 75R) apply to the project if approved. However, the regulations may preclude approval for the carrying out of a class of project (other than a critical infrastructure project) that such an instrument would otherwise prohibit.

(4) A project may be approved under this Part with such modifications of the project or on such conditions as the Minister may determine....

Division 5, s 75W "Modification of Minister's approval" provides:

(1) In this section:

Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister's approval, including:

(a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and

(b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval.

(2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

(4) The Minister may modify the approval (with or without conditions) or disapprove of the modification....

11 Clause 8J(8)(b) the EPA Regulation provided at 10 March 2010, when Mod 6 was approved, provides:

(8) A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if:

(b) the Minister approves of the development consent being treated as an approval for the purposes of section 75W of the Act.

The development consent, if so modified, does not become an approval under Part 3A of the Act.

12 This clause was amended on 26 March 2010 (cl 8 Sch 1 of Environmental Planning and Assessment Amendment (Miscellaneous) Regulation 2010). O n 17 January 2011 when Mod 9 was approved it read as follows:

8) For the purposes only of modification, the following development consents are taken to be approvals under Part 3A of the Act and section 75W of the Act applies to any modification of such a consent:

(b) a development consent granted by the Minister under State Environmental Planning Policy No 34-Major Employment-Generating Industrial Development .

The development consent, if so modified, does not become an approval under Part 3A of the Act.

Proceedings No 40499/10 - challenge to Mod 6

Applicant's grounds of appeal

1. Failure to consider relevant matters

(a) life of mine

13 The Minister failed to consider that Barrick only had approval for a 13 year operational life consisting of eight years mining/processing plus a further five year processing. No consideration was given by the Minister that the 13 year life of the mine was divided into extraction and processing. The relationship between mining and processing was not considered. Mod 6 permits increased ore extraction for a further six years beyond what was originally approved. Ore production will increase from 6.9 to 7.5 Mt tonnes.

(b) ESD principles

14 The Minister failed to consider ESD principles as set out in s 5(a)(vii) of the EPA Act which are a mandatory relevant consideration. The principles of intergenerational equity and the precautionary principle are particularly relevant. Authority for this is found in Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 per Hodgson JA at [163], also Kennedy v NSW Minister for Planning [2010] NSWLEC 240 at [78] - [80].

15 The specific failure to consider ESD principles is apparent in relation to the assessment of aboriginal heritage impacts. These impacts had to be considered and were not. The DGEAR under s 75W required that the potential impacts on aboriginal heritage of the revised mining operation be assessed. No such assessment was undertaken. The DGEAR were not satisfied by p 3-63 - 3-67 of exhibit B. It refers to assessments of aboriginal cultural heritage that were undertaken 7 - 10 years previously, refers to permits and consents to destroy issued to Barrick for the development consent in 1999 and that an indigenous cultural heritage management plan will be implemented, all of which is irrelevant. All the considerations relate to the development consent and are not strictly relevant to the impact the modification may have on aboriginal cultural heritage values. The Assessment Report at exhibit A tab 12 and exhibit B appendices A - H does not include aboriginal cultural heritage.

(c) cumulative impacts

16 The Minister failed to assess the cumulative impacts of Mod 6 together with Mod 7 and Mod 8 which modifications will collectively result in a fundamental change to the operation of the mine and the mine footprint not encompassed or contemplated by the original assessment and development consent. The Minister failed to assess cumulative impacts as follows:

(i) the use of process water from the Lachlan River

(ii) the destruction of habitat of endangered species and the removal of the reporting regime put in place for the original approval of animal deaths and/or injuries

(iii) undisturbed aboriginal objects and cultural heritage places.

(iv) the risk of damaging the fragile Lake Cowal ecology and aquifer system by establishing the saline bore

The specified cumulative changes together with Mod 7 and Mod 8 were said to result in a fundamental change to the operation and mine footprint.

17 At the hearing this ground was not strongly pressed by the Applicant's agent apart from undisturbed aboriginal objects and cultural heritage places. No reference was made to material which would support the other areas identified. Nor were these linked with Mod 7 and Mod 8.

2. Jurisdictional fact

18 The Applicant's agent's written submissions filed at the hearing included a new ground without leave being sought to amend the Points of Claim (POC). The new ground "failure to comply with s 75W(3)" raised, firstly, that under s 75W(3) there was no statutory basis to consider the Mod 6 application by not having undertaken an assessment of the potential aboriginal heritage impacts of the revised operations. Secondly, s 75W(3) contains a jurisdictional fact which had to be complied with before the modification could be considered by the Minister. These two grounds appear to be the same issue. The Respondents did not object to this ground being raised. Paragraphs 43 - 52 of the Applicant's agent's written submissions are considered as part of the POC, now effectively amended.

19 The Court can determine as a jurisdictional fact whether s 75W(3) has been satisfied. Section 75W(3) specifies a jurisdictional fact concerning satisfaction of the DGEAR by Barrick that must be complied with before any modification can be considered by the Minister. The DGEAR are not actually referred to or given consideration in the Assessment Report and are not in the Minister's bundle. Further, there is no notice or letter on the file suggesting that Barrick had complied with the DGEAR prior to the Minister considering the proposal.

20 Alternatively, the Applicant submitted that whether the proponent has complied with the DGEAR is a jurisdictional fact which the Director-General must be satisfied about under s 75W(3) before approval can be given by the Minister under s 75W(4). Applying the findings of Biscoe J in Kennedy at [58(c)], there was no determination of satisfaction by the Director-General and no relevant finding of satisfaction made so that the jurisdictional fact was not satisfied. There is no document in evidence which suggests such satisfaction. Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 per Spigelman at [37] supports such a finding. There was no assessment of aboriginal cultural heritage impacts before consideration of the Modified Request.

3. Ultra vires

21 When the Minister approved the Modified Request she did not have power to do so under s 75W of the EPA Act. Paragraph 4 of the Notice of Modification approved the deletion of condition 1.2(i) of Schedule 2 of the Conditions of Consent replacing it with: "that Mine Operations may take place until 30 June 2024." The Modified Request only sought an extension of mining operations of two years until 2019. No assessment had been undertaken for mining operations to continue until 2024.

22 The Minister does not have unfettered power to approve development under s 75W, she must determine the request before her. The Minister had no power to approve a modification that has not been applied for or assessed.

23 In reaching her decision the Minister compounded her error by basing her decision on the fact that mine operations commenced in 2006 when the mine commenced in 2005.

Modification not substantially the same as approved development

24 A further issue raised under this ground in the POC (par 26) is that the development approved by the Minister as modified is not substantially the same development for which consent was originally granted. The particulars state that the development as originally approved was assessed by two Commissions of Inquiry, an EIS and a Land Board inquiry in relation to water licensing and resulted in a decision which balanced the competing interests of development and protection of the environment. The modification along with the previous modifications actually approve aspects which were rejected in the original approval process. In the Applicant's agent's written submissions this issue was considered in the context of cumulative impacts.

Minister's submissions

25 The Minister addressed the issues raised in a different order to the Applicant. The Minister's numbering is retained in the following text.

3. Ultra vires

26 The challenge based on the Minister acting beyond power in approving a mine life of 2024 in Mod 6 is rendered redundant by the approval of Mod 9. Even if an error is found, relief should not be granted where to do so has been rectified by a subsequent approval. The Court would therefore refuse relief in the exercise of its discretion where there is no utility in making the declaration as occurred, for example, in Ulan Coal Mines v Minister for Mineral Resources (No 2) [2008] NSWCA 251 at [9] inter alia.

27 In any event, Mod 6 amended the definition of mining operations so that this was inclusive of processing and transportation, a newly defined concept the subject of condition 1.2(i). That condition was varied so that the mining operations may take place until 2024. The 13 year period specified in the original development consent with 8 years extraction plus 5 years processing changed as a result of the change in definition of mining operations. The proper construction of condition 1.1(a)(x) is that the development is to be carried out generally in accordance with the E42 Modification Request dated 25 March 2008 and supporting EA submitted by Barrick in light of that changed definition.

28 Condition 3.6 of the original development consent required Barrick to carry out rehabilitation in accordance with a mining operations plan and EIS. Under Mod 6 that condition was amended to require Barrick to undertake various activities in relation to rehabilitation including progressive rehabilitation of the mine. The Modified Request indicated that if approved, the life of the mine would be extended from 13 years (2017) to 15 years (2019). The change in the length of time for mining and processing did not impact on the rehabilitation strategy in section 5 of the EIS.

29 Every reference to mining operations does not permit Barrick to do extraction until 2024, see Windeyer J at 285 in Brown v Brook (1971) 125 CLR 275 and Buresti v Beveridge (1998) 88 FCR 399 at 401 per Hill J. On a proper construction the consent conditions only permit mining and processing in accordance with the Modified Request (exhibit B) whereby the project for which approval is sought is for a two year extension of construction and processing when this is considered with the change in the definition of mining operations approved in Mod 6.

2. Jurisdictional fact

30 No jurisdictional fact arises under s 75W. There is no role for the Court to determine that there is compliance with the DGEAR as a jurisdictional fact, most recently defined by the High Court in Gedeon v Commissioner of the New South Wales Crime Commission; Dowe v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 at 139. Whether there is a jurisdictional fact must be determined as a matter of construction. This can be done by contrasting s 75H(2) with s 75W. Section 75W says nothing about compliance with the DGEAR as a pre-condition to the Minister's decision under s 75W(4). Whether there is compliance with environmental assessment requirements is contestable. Section 75H(2) "considers" the matter of compliance with environmental assessment requirements is for the Director-General and is not an issue for the Court to consider as a jurisdictional fact. The word "may" in s 75W(2) suggests a qualitative task to be undertaken by the Director-General. If there is no jurisdictional fact in s 75H(2) and it is far more elaborate than s 75W, that suggests that there is no jurisdictional fact in s 75W.

31 The second of the Applicant's agent's arguments adopting Biscoe J's finding in Kennedy that there is a jurisdictional fact in terms of the Director-General's satisfaction of compliance with the DGEAR is not supported by the wording of s 75W. This is particularly demonstrated by a comparison with the terms of s 75H.The statements in Kennedy of Biscoe J at [58(c)] are obiter. The circumstances there differed in that no DGEAR were issued, unlike here. The Court of Appeal in Barrick considered s 75W(2) and held that section does oblige the Director-General to see if there is response to the environmental assessment requirements. This was done, as can be seen in the letter from the Minister's delegate to Barrick dated 15 August 2008 (tab 8 exhibit A), which states that the EA for the E42 Modification Request is adequate for public exhibition. That concerns are expressed in the letter concerning water use is irrelevant. This demonstrates the Director-General's satisfaction exercising his discretionary power as required by s 75W. A similar finding was made in Gray v Minister for Planning [2006] NSWLEC 720; (2006) 152 LGERA 258 at [78].

32 In any event, if there is jurisdictional fact in s 75W this was clearly satisfied by the letter from the Minister's delegate at tab 8 exhibit A.

1. Failure to consider relevant matters

(b) ESD principles

33 The Applicant's agent has relied incorrectly on [163] of Walker as reflecting the decision of Hodgson JA. Paragraph [163] is the summary of Biscoe J's findings. Hodgson JA found against those findings (at [41]) holding that the public interest while a mandatory relevant consideration was to be considered at a high level of generality. The Applicant's criticism of the failure to consider aboriginal heritage is based on a level of particularity which is contrary to the finding of Hodgson JA at [41].

34 There is no mandatory relevant consideration identified in conformity with the principles in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 in not having regard to ESD principles.

35 In any event, as a matter of fact there is clear reference to ESD principles. In the Modified Request headed ESD Considerations (exhibit B p 1-10 - 1-19), with reference to the precautionary principles at p 1-17, intergenerational equity is addressed and there is implementation of an offset strategy for the loss of vegetation. The 105 ha section of green area in Fig 1 - 4 in exhibit B will be disturbed and there is provision for 210 ha as an offset by Barrick. Implementation of the offset strategy is discussed and an analysis that the strategy complies with ESD principles is provided. The Assessment Report (exhibit A tab 12 p 291) assesses what these principles require. In relation to vegetation there is an assessment of what is to be removed and both the Department of Planning and the Department of Environment, Climate Change and Water are satisfied that there is a biodiversity offset strategy.

36 The Director-General is not required to undertake an environmental assessment (in contrast with s 75I for new projects) for the purposes of s 75W(3) and (4) but has done so. That assessment considers issues such as water, and flora and fauna. It is plain from looking at the document that what occurred was an assessment consistent with ESD principles especially p 288 exhibit A.

Aboriginal heritage (response to A's submissions par 34-42)

37 There is clear reference to the issue of aboriginal heritage in the assessment of aboriginal heritage in the Modified Request application. The Applicant's agent relied on Biscoe J in Kennedy in relation to the ground of whether aboriginal heritage had been taken into account. Biscoe J reviewed the material prepared on that issue and considered that there was evidence that the issue of aboriginal heritage was taken into account. The material considered by Biscoe J is similar to that plac ed before the Minister in this matter and his conclusion at [87] that there was no failure to consider aboriginal heritage applies here.

(c) cumulative impacts/fundamental change

38 The Applicant says Mod 6 will result in fundamental changes to the operation and mine footprint without taking into account the specified cumulative impacts. The green area in Fig 1 - 4 exhibit B is 105 ha, a less than 11 per cent increase in the overall area of the mine footprint. The operations continue as the same mine with the same extractive processes. There is no fundamental change on the facts in relation to the process rate (Applicant's agent's written submissions at par 41(i) - (iv)).

Modification not substantially the same as approved development (POC 26)

39 This ground impermissibly relies on the wording in s 96(1A) of the EPA Act. Section 96(1A)(b) states that a consent authority can modify a consent if satisfied the development as modified is substantially the same as the development originally approved, inter alia. No such wording is found in s 75W. There is no such precondition in s 75W per Basten JA in Barrick at [40]. This ground of challenge is misconceived.

Barrick's submissions

40 The Court would only grant such relief as is necessary to remedy or restrain a breach, assuming such a breach is found, consistently with the terms of s 124 of the EPA Act . That would be a declaration that, to the extent to which Mod 6 purported to authorise mining and processing beyond December 2019, it was invalid. The Court would not make a general declaration of invalidity covering aspects of the modification not touched by the error alleged: Williams v Minister for Planning (No 4) [2010] NSWLEC 222.

41 The E42 Modification Request dated 25 March 2008 was supported by additional documentation. The Notice of Modification dated 10 March 2010 should be read as authorising mining only until the date sought in the application, namely 2019. However, these issues of construction of the Notice of Modification do not need to be resolved by the Court in these proceedings as Mod 9 granted on 17 January 2011 by the Minister's delegate has now brought the modified consent into line with the Modified Request and replaced "30 June 2024" in condition 1.2(i) with "31 December 2019".

42 As a matter of discretion, the Court would not now grant relief in relation to Mod 6, on this ground, even if the Court accepts that there was error in the respect alleged in the decision of 10 March 2010, for the reason that the alleged error has been entirely rectified by the later Mod 9. To grant any relief is pointless.

3. Ultra vires

43 The note beneath item 4 and condition 1.2(i) in the Notice of Modification dated 10 March 2010 (exhibit B tab 13 p 596) for Mod 6 shows that the apparent purpose of inserting a condition allowing mining operations (which in the Notice of Modification were defined inclusively) to continue to 2024 was simply to reflect the 21 year duration of the development consent from the date of grant of the mining lease in 2003 (see exhibit A tab 3 p 177 cl 1.2(i)), and the capacity for rehabilitation to occur within that 21 year period after the operational (extraction and processing) life had ceased.

44 If anything still turns on it, condition 1.2(i) as appearing in the Notice of Modification for Mod 6 should be construed as having allowed that sub-set of "mining operations" (as defined) being rehabilitation, transportation activities and other mining related activities, but not mining and processing, as such, to continue after the 2019 date sought in the Modified Request. That flows from the terms of general condition 1.1(a)(x) at exhibit A tab 14 p 609, which requires that the development be carried out "generally in accordance with the (x) modification application dated 25 March 2008 and supporting EA submitted by Barrick Australia Ltd". The "EA" is defined on p 607 to incorporate the modifications made by the Modified Request (exhibit B). Thus, read according to its terms and without more, Mod 6 conferred authority to conduct mining and processing until the end of 2019, and other mining related activities such as rehabilitation until June 2024.

45 In any event and alternative to the first point, Mod 6 should be read down to be within power. Section 6 of the Interpretation Act 1987 states that:

Definitions that occur in an Act or instrument apply to the construction of the Act or instrument except in so far as the context or subject-matter otherwise indicates or requires.

The E42 Modification Request dated August 2008 was modified by the Modified Request dated October 2009. The Notice of Modification defines these documents collectively as the "EA". The Modified Request in table 1-2 describes the proposed modification and provides a comparison with the consent as previously modified as at the date of the Modified Request dated October 2009 (after Mod 7 and Mod 8 were approved). The most relevant comparison for the purposes of these proceedings is that in table 1-2 of the Modified Request, between the right hand column headed "Summary of Modified Request Project Compared to E42 Modification Project" and the left hand column "Summary of Currently Approved CGM".

46 When the conditions of consent as amended are considered in context there is no circumstance suggesting ultra vires exercise of power arises. The approval is within the definition of "instrument" under s 3(1) of the Interpretation Act which includes an environmental planning instrument. A construction of an instrument which avoids excess of power is required to be adopted according to s 31(1):

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

Therefore the Court must adopt a construction that avoids an excess of power.

2. Jurisdictional fact

47 The Minister's submissions are adopted. The power in s 75W(4) is not conditioned on compliance with the DGEAR, if any are imposed. For the Applicant to be correct would require s 75W(4) to state that "where the proponent has complied with the environmental assessment requirements, if any, ..." and it does not.

1. Failure to consider relevant matters

(a) life of mine

48 The Minister's delegate was clearly told that the development consent as originally granted, and the development consent as it was at 10 March 2010 immediately prior to Mod 6, provided for a period of mining and processing of ore limited to 13 years and comprising an 8 year mining and processing phase followed by a 5 year processing only phase: see third entry Life of Mine in table ES-1 of exhibit D p ES-3. The Applicant's agent's complaint in this respect, made only in oral submissions and not pleaded, is without substance. As the Cowal Gold Mine commenced mining operations in 2005, the 13 year operational life was due to be completed in 2017: Barrick's Points of Defence at par 8 and 16(d) and (e); condition 1.2(i) of the development consent exhibit A tab 3 p 177, and the EIS dated 13 March 1998 (table 2-1 in vol 1 of exhibit C p 2-7).

49 Material before the Minister correctly identified the 13 year operating life of the approved development that was to be modified, the fact that 2017 was the final year of the mine's operational life, and the fact that a two year extension was sought: Assessment Report (exhibit A tab 12 p 294), and the Department of Planning Briefing Note (exhibit A tab 12 p 284) where it is observed that "[u]nder the modified consent, Barrick is allowed to extract and process up to 6.9 million tonnes a year (Mtpa) until 2017." In the Briefing Note (exhibit A tab 12 p 286) the Department of Planning also observes that the proposed extension of mine life (that is, in the Modified Request as opposed to the EA) has "been reduced from 11 years to 2 years (total proposed mine life reduced from 24 years to 15 years)", a statement which correctly presupposes an approved mine life of 13 years.

50 The only conclusion open on the above evidence is that the Minister took into account the matter alleged in the first par 23 of the POC, namely the 13 year operational mine life, including its 8/5 split.

(b) ESD principles

51 T he allegation in the second par 23 of the POC that the principles of ESD were not considered, is also contrary to the evidence. The principles of ESD are expressly considered in the Assessment Report at exhibit A tab 12 p 291, and in the E42 Modification Request EA (exhibit D at p ES-27, and p 3-21 - 3-26), and in the Modified Request (exhibit B at p 1-10, and p 1-16 to 1-19) which were before the Minister.

Aboriginal heritage

52 Detailed archaeological surveys are referred to at p 4-88 exhibit D. There is an extensive regime for the management of aboriginal cultural heritage on the site imposed by the Director-General of the National Parks and Wildlife Service who has statutory responsibility for aboriginal cultural heritage. The existence of that regime is highly relevant for the decision-maker to take into account. Under the wider E42 Modification Request a larger area of disturbance was proposed. Under the Modified Request no registered aboriginal heritage site is touched. There is no basis for submitting that there has been no assessment or failure to consider a wider assessment. It is contemplated in the Lake Cowal Project Indigenous Archaeological and Cultural Heritage Management Plan (exhibit E) that objects are likely to be found elsewhere beyond registered sites and provision for these is made. That recognition is implicit from the outset and does not impact on the validity of Mod 6.

(c) cumulative impacts

53 None of the impacts on the Lachlan River, the habitat of endangered species, aboriginal objects and heritage sites and the impact on Lake Cowal's ecology and aquifer system by the establishment of the saline bore is a mandatory consideration for a decision-maker under s 75W. For a particular consideration to be mandatory it must be made so by express words or implication from the subject matter, scope and purpose of the legislation pursuant to which the decision is made: Foster v Minister for Customs and Justice [2000] HCA 38; (2000) 200 CLR 442 at [20] - [24], citing Deane J in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [73]; Peko-Wallsend at 39 - 41 per Mason J and 55 - 56 per Brennan J; Drake-Brockman v Minister for Planning [2007] NSWLEC 490; (2007) 158 LGERA 349 at 385 [126] - [129].

54 As a matter of fact cumulative environmental impacts were considered in any event so that it cannot be said they were not. The Department of Planning's Briefing Note (exhibit A tab 12 p 287) observes that the external water supply comes from three sources, one of which is the Lachlan River and that Barrick has identified potential alternative water supply sources to reduce the mine's reliance on the Lachlan River entitlement. The Department states (at p 288) that it is satisfied that "the modification would be able to proceed without the risk of significant water shortages". Barrick proposes to purchase additional water entitlements from the Lachlan River trading market (Barrick's Response to Submissions, exhibit A tab 12 p 367 - 368, exhibit D section 2.7 Water Supply). This means that there is no additional environmental impact to consider because the entitlement is the same and only the vendor would have changed. The Assessment Report (exhibit A tab 12 p 302 - 303) expressly considers the potential impacts on threatened flora and fauna and concludes that the Department is satisfied that any additional impacts as a result of the modification are likely to be minimal as the impacts of the mine as modified will be similar to those originally approved. It also considers Barrick's proposal to conserve and enhance 170 ha of remanent woodland and cleared agricultural land to offset the disturbance of up 30 ha of remnant vegetation including 15 ha of an endangered ecological community: exhibit A p 284 - 288. Extensive assessments of impacts of flora and fauna are contained in the E42 Modification Request and Modified Request (exhibit D p 4-35 - 4-61, and exhibit B p 3-20 - 3-43).

55 Aboriginal cultural heritage is a matter considered at section 5.6 of the Assessment Report, at exhibit A tab 12 p 306, which observes that the Modified Request would not directly impact on any identified site at the mine, and concludes that the Department was satisfied that with continued implementation of the Indigenous Archaeology and Cultural Heritage Management Plan and compliance with the s 87 permit and s 90 consent under the National Parks and Wildlife Act 1974, the modification was unlikely to have any significant impact on aboriginal heritage values.

Modification not substantially the same as approved development

56 The power to modify provided in s 75W does not require a comparison with the development for which consent was originally granted, unlike s 96 of the EPA Act; see Williams at [54]. Basten JA observed in Barrick at [53] that the requirement for approval of a modification in s 75W must be understood in the context of three factors. Firstly, the subject matter of Pt 3A is defined by reference to major infrastructure developments, secondly that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment, and thirdly the Minister was the consent authority and was to have regard to matters such as State and regional planning significance.

57 On the facts, in any event, the modification is not a radical change to the existing project.

Finding on Mod 6 (40499/10)

58 The Applicant raises a number of grounds of challenge to Mod 6 (and Mod 9), and bears the onus of proof on the civil standard of the balance of probabilities of establishing these. Development consent for the Cowal Gold Mine was granted in 1999 under the EPA Act. As the circumstances referred to in background and the chronology set out in par 3 - 6 above demonstrate, there have been a number of amendments (not all are referred to in the chronology) to the development consent with consequential changes in the consent conditions.

59 While the Applicant's agent's submissions and the chronology refer to Mod 7, approved on 11 February 2007, and Mod 8, approved on 28 August 2009, under s 96(1A) of the EPA Act only passing reference was made to these by the Applicant's agent and there is no relevant evidence about them. The two modifications (Mod 6 and Mod 9) challenged by the Applicant were approved under s 75W of the EPA Act in March 2010 and January 2011 respectively, as provided for by cl 8J(8)(b) of the EPA Regulation (as differently in force at the relevant dates). It is necessary to consider how s 75W fits within Pt 3A to understand the relevant statutory context, which in turn is necessary for the consideration of several grounds of appeal.

60 Sections 75H, 75I and 75J set out above in par 10 apply to the assessment and approval of new projects under Div 2 Pt 3A. Section 75H requires a proponent to submit to the Director-General the environmental assessment required under Div 2. The Director-General can require a revised environmental assessment if what is submitted is not adequate. The environmental assessment is publicly exhibited. Under s 75I the Director-General must report to the Minister on the project to enable his or her consideration of the application for approval to carry out the project. The contents of the Director-General's report are specified in s 75I(2)(a) - (g). The Minister's power to approve new projects under s 75J is constrained in s 75J(1) and (2). The requirements for approval of modifications under s 75W are markedly less extensive than for approvals of proposed Pt 3A projects as required in Div 2 s 75H, s 75I and s 75J. There is no s 75I environmental assessment requirement specified for modification applications under s 75W. There is no similar constraint in s 75W(4) to s 75J(1) and (2) when the Minister is considering modification applications. Some of these differences are considered in obiter by Biscoe J in Kennedy at [58].

61 In this case, the Director-General specified EARs for the E42 Modification Request as he can choose to do under s 75W(3). These were before Barrick when the lengthy Modified Request (exhibit B) was prepared. The Director-General through his Department prepared environmental assessment reports to the Minister and the Minister's delegate for Mod 6 and Mod 9. These reports were not a requirement identified in s 75W.

Jurisdictional fact

62 As the jurisdictional fact issue is a threshold issue I will consider this first. The Applicant argued that s 75W(3) raised a jurisdictional fact, which the Court had to determine, of whether the DGEAR were satisfied by Barrick, which satisfaction was required before the Minister could grant approval of a modification under s 75W(4). Alternatively, the Applicant submitted that the Director-General had to be satisfied that the DGEAR had been complied with, relying on Kennedy at [58(c)]. The Respondents argue that there is no basis for finding that either the Court or the Director-General's satisfaction concerning compliance with EAR is a jurisdictional fact under s 75W.

63 The most recent statement by the High Court on the meaning of jurisdictional fact is found in Gedeon at [43] that:

... the expression is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker.

64 The principles in Timbarra at [34] - [44] in relation to jurisdictional fact in a statutory context continue to be relevant and have been referred to in many cases in this Court considering jurisdictional fact issues. I considered these and a number of other authorities in Boral Resources (Country) Pty Ltd v Clarence Valley Council; Cemex Australia Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134 at [79] - [87], see also Calardu Penrith Pty Ltd v Penrith City Council [ 2010] NSWLEC 50 Biscoe J at [38] - [39] ( affirmed on appeal in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWCA 189 ; (2010) 174 LGERA 446) .

65 Principles identified include that a fact which is preliminary to the exercise of statutory power, rather than part of a decision-making process, is more likely to be an objective fact that is jurisdictional. That an issue gives rise to subjective considerations (matters of fact and degree requiring judgment) is more suggestive that the fact is not jurisdictional. Where the relevant factual reference necessarily arises in the course of consideration by that decision-maker of the exercise of power suggests the fact is unlikely to be jurisdictional. The extent of inconvenience that may arise from classifying a factual reference in a statute as a jurisdictional fact is also relevant.

66 Whether a different jurisdictional fact arose in s 75W was considered in Williams at first instance (at [53] and [66]) and on appeal in Barrick . At issue in the appeal was whether there were any constraints on the power to modify under s 75W and on whom the obligation to address those constraints fell. The appellant argued against the finding of the trial judge that a radical change was not permitted in an application to modify development under s 75W. In upholding the appeal, Basten JA at [38] considered that there is an implicit obligation on the Minister to be satisfied that a request falls within the scope of s 75W for reasons stated at [39] - [42]. Whether the proposed modification was a radical transformation Basten JA held is a matter for the Minister to determine, not the Court at [43]. Issues relevant to the determination of jurisdictional fact were identified in [26]:

Where a power is said to depend upon, not the existence of a contingency, but the satisfaction of the decision-maker as to the contingency, the jurisdictional fact will be the relevant state of satisfaction: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [127]- [137]. Where there is no such express legislative statement, an inference may be drawn from surrounding provisions and from the nature of the contingency. Thus, if the contingency is something which the administrative decision-maker is required to investigate, it is more likely that the jurisdictional fact is the state of satisfaction of the officer: Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 at 324-326 (Mason JA, Moffatt JA agreeing). Similarly, if the matter is one requiring evaluative judgment, it is more likely that the legislature intended that the officer form an opinion as to the contingency, rather than that the power be engaged only where the objective facts are established: cf Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [61]- [64]. By contrast, an intention to establish a jurisdictional fact, to be determined objectively, may be found where the precondition to the exercise of the power is distinct from the matters to be addressed in exercising the power and can thus be characterised as "an essential preliminary to the decision-making process": Timbarra at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443; Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707 at [46]- [49]; cf Aronson, Dyer and Groves, Judicial Review of Administrative Action (4 th ed, 2009) at [4.305].

67 I will consider firstly whether the Court has a role in determining as a jurisdictional fact compliance with the DGEAR under s 75W(3). Applying the principles identified in Timbarra , inter alia, as largely applied in the reasoning of Basten JA in Barrick at [26] suggests that the Court does not have such a role. Consideration of the statutory context is necessary. As submitted by the Minister it is useful to contrast s 75W with s 75H, s 75I and s 75J Div 2 which apply to new projects for which approval is sought under Pt 3A. As identified in par 61 above, there is no equivalent in s 75W or another section in Div 5 to s 75H(2) - (7) and s 75I specifying environmental assessment requirements and approval processes for new projects. Section 75J which provides for the Minister to grant consent for new projects imposes requirements on the Minister in doing so. Section 75W(4) has no such requirements. There are no similar environmental assessment requirements and approval processes in s 75W(3). Section 75W(3) does not require the Director-General to issue EARs nor does it state that the Director-General must be satisfied of any matter. The express obligation in s 75W falls on the proponent who must comply with any EAR issued by the Director-General.

68 The matter of fact argued to be jurisdictional is whether the DGEAR have been complied with, which raises matters of fact and degree suggesting subjective issues arise. The wording in s 75W(3) makes no reference to any statutory precondition which requires satisfaction before any project is referred to the Minister for approval under s 75W(4). There is no fact in s 75W(3) explicitly or implicitly specified which is "an essential preliminary to the decision-making process". The wording in s 75W(3) does not suggest that the Court has a role in determining as a jurisdictional fact satisfaction with the DGEAR before the exercise of the Minister's discretion to approve a modification under s 75W(4). This is further confirmed by Kennedy at [58(c)] where there was no finding that the Court had a role in determining satisfaction with DGEAR under s 75W(3).

69 The Applicant's alternative submission was that the Director-General must be satisfied under s 75W(3) in relation to the jurisdictional fact of whether there was satisfaction with the DGEAR. In Kennedy at [58(c)] Biscoe J stated in obiter that:

(c) in contrast to the express language of the Part 3A modification of project approval regime, the Director-General has a discretion ("may") but is not bound to notify the proponent of EARS and there is an express requirement that the proponent "must" comply with the EARS before the matter will be considered by the Minister: s 75W(3). Thus, in the modification context the proponent's compliance with EARS (if they are notified) is a jurisdictional fact (in the sense of the Director-General's or the Minister's satisfaction - rather than the Court's satisfaction - that the proponent has complied with the EARS). There is also no express requirement that the Director-General report to the Minister.

70 In Kennedy , the Court was considering a ground of appeal challenging the approval of modification approvals because the Minister failed to consider the protection of aboriginal cultural heritage as recommended in three reports. As Biscoe J noted at [57] there is no express requirement that the Minister consider anything when deciding whether to approve a modification request under s 75W. In that case the Director-General did not issue any EARs to the proponent.

71 It is unnecessary that I determine this alternative issue in order to resolve this ground of appeal. The Department of Planning also undertook its own assessment which reviewed Barrick's extensive report addressing the DGEAR (par 7(viii) above). To the extent that the Director-General did have to form a view about compliance with the DGEAR the letter dated 15 August 2008 from the Director-General to Barrick which states that the EA is considered adequate for public exhibition (exhibit A tab 8) demonstrates that view was formed. This ground of appeal fails in these circumstances.

Ultra vires

72 The Applicant argues that the approval was beyond power because there was no basis for granting the modification to extend the mine operations until 2024 when Barrick applied for an extension until 2019. As this is also a threshold issue I will consider this next. In Barrick at [13] Basten JA noted that despite the open ended terms of s 75W(4) the parties agreed that the Minister's powers were not unlimited and he or she could only act upon a request by the proponent of the project. That case did not have to consider whether the scope of the Minister's approval was limited by the specific terms of an application to modify. The definition in s 75W(1) of modification of approval is wide.

73 I agree with the Respondents' submissions that as Mod 9 has changed the life of the mine to 2019, as applied for by Barrick in the Modified Request, this error, if one existed, is remedied if Mod 9 is valid. I also agree with the Respondents that there is no consequential relief which this Court would order in relation to Mod 6 in that circumstance as to do so would lack utility (applying Ulan ). This ground of appeal is not a proper basis for declaring the whole of Mod 6 invalid as that would be quite disproportionate to the alleged invalidity.

74 Additional substantive reasons for why this ground should fail include that the construction of the amended consent is consistent with the application made by Barrick because the extension to 2024 allows extraction and processing for a further two years until 2019 and other mining related activities such as rehabilitation until 2024 (see par 44 above). This is consistent with the term of the mine of 21 years as originally granted in condition 1.2(i) (see par 7(i)).

75 Alternatively, the consent conditions should be construed as allowing extraction until 2019 the extension of two years sought, for the reasons given by the Minister at par 28 - 30. In the context of the definition of the change in mining operations in Mod 6 to include rehabilitation as well as mining and processing and condition 1.1(a)(x) requiring the development to be in accordance with the Modified Request and the supporting EA, which sought an extension of ore extraction of two years.

Modification not substantially the same as approved development

76 The Applicant submitted in the POC (par 26) that the Mod 6 approval was for a substantially different development than what had been granted development consent. This was referred to in the Applicant's written submissions under cumulative impact. The wording of substantial difference does not appear in s 75W and the submission appears to be based on similar wording in s 96(1A)(b), as the Respondents submitted. If such a limitation exists under s 75W it must be implied in the absence of express statutory expression. Modification of approval is defined in s 75W(1) as "changing the terms of a Minister's approval" and includes "varying or adding a condition of the approval or imposing an additional condition of the approval", and "changing the terms of any determination made by the Minister under Division 3" (not relevant here). Section 96 does not have such a broad definition of change to an approved development.

77 The extent of modification permissible under s 75W in contrast with s 96 was considered by this Court in Williams . Biscoe J at [56] considered s 75W and s 96 as follows:

Three differences may be noted between s 75W and s 96, which is the modification provision for approvals under Part 4. First, there is a contextual difference in that Part 3A deals with a limited class of development which may be described, in a nutshell, as large, expensive and long term. Secondly, s 75W contains a broad definition of "modification of approval" with non-exhaustive illustrations, whereas s 96 contains no definition. The s 75W definition is "changing the terms of a Minister's approval, including (a) revoking or varying a condition of approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval". Thirdly, there is a qualification in s 96 which informs the meaning of the word "modified" as used therein: the consent authority must be satisfied that the development to which the consent as modified relates is "substantially the same" as the development already approved. That qualification is absent in s 75W, which dispenses with the requirement of Ministerial approval if the modification is consistent with the existing approval. This difference suggests that s 75W permits a modification which is not substantially the same as the development already approved. However, that is not the same as saying that s 75W permits a radical transformation.

78 His Honour's reasoning that s 75W permits a modification which is not substantially the same as the development already approved appears correct and has not been addressed by the Applicant's agent suggesting there is any error. It should be applied in this case also in the interests of judicial comity, suggesting this ground of appeal should fail. This ground is not formulated on the basis of a radical transformation of the approved development, which was the substantive finding in Williams which was appealed successfully by Barrick to the Court of Appeal.

79 The Minister considered that the judgment of Basten JA in Barrick supported her argument that no precondition such as that raised by the Applicant applies explicitly or implicitly in s 75W. The issue before the Court of Appeal was whether the finding of the primary judge that a project which was a radical transformation of the terms of an existing approval did not fall within an application to modify under s 75W was correct. Overturning that finding, Basten JA (McColl JA and Sackville AJA concurring) held that the decision whether a proposal came within s 75W was a matter for the Minister at [38] - [42]. In relation to the constraints on the Minister's power to modify Basten JA stated at [53]:

The absence of precision in relation to what might constitute a modification of an approval has formed part of the reasoning for considering that the legislature did not intend that it be the subject of conclusive determination only by a court. As noted, the defined phrase means "changing the terms of an approval to carry out a project under this Part". Although that is defined to include changing a condition of the approval, there is no clear dividing line between that which may constitute a condition and that which may constitute an element of the underlying project. All that can usefully be said in the abstract is that the requirement for approval of a modification must be understood in the context of three factors. The first is that the subject matter of Pt 3A is defined by reference to major infrastructure developments, as identified by the Minister (or by a State environmental planning policy), as having State or regional environmental planning significance: s 75B. Secondly, the project is required to undergo environmental assessment and public consultation, of a kind not required of a modification. Construing s 75W in its context, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment. (Given the powers of the Director-General, it cannot be said, of course, that only modifications which properly required no further environmental assessment were envisaged.) Thirdly, the 'consent authority' was to be the Minister. Conferring authority on a Minister may have a number of purposes. One such purpose may be to permit the decision-making authority to have regard to matters such as State and regional planning significance, being matters which stand above and beyond developments having limited local impact or insignificant impact at a regional or State level.

80 This finding does not identify definitively any limit on the power to modify under s 75W. Two matters to be considered in addition to the fact that the Minister is the consent authority are that a modification is intended to have limited environmental consequences beyond the original approved project, and that projects approved under Pt 3A are major infrastructure developments. That finding applied by analogy suggests that this ground of appeal is not available in this case in relation to s 75W.

81 Further as a matter of fact, and assuming it is a matter this Court can consider, for the reasons given by the Respondents the Minister in approving the Modified Request did not approve a substantially different development. The same mining activity will be carried out within the approved mining lease area, the area of the mine will increase by less than 11 per cent and the processes used are the same. This ground of appeal fails.

Failure to consider relevant matters

82 In order to succeed in relation to the ground that a decision-maker, here the Minister, has failed to consider a relevant matter that matter must be mandatory in the manner considered in Peko-Wallsend per Mason J at 39 that:

The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General [1981] 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233. The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1947] EWCA Civ 1; (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

83 A number of further authorities are identified by Barrick (at par 53 above) which confirm the limits on this ground of judicial review. There is no specific statutory requirement that any matter must be considered under s 75W(4) by the Minister when approving a modification. Whether any matters are implied relevant mandatory considerations must be addressed in light of the subject matter, scope and purpose of the statute under which the decision is made; Peko-Wallsend per Mason J at 39 - 40.

84 A statute must be able to be construed as expressly or impliedly obliging the decision-maker to consider the subject matter at the level of particularity alleged by the Applicant per Notaras v Waverley Council [2007] NSWCA 333; (2007) 161 LGERA 230 at [120] in order for this ground to succeed. As identified in Williams by Biscoe J at [41] the formula of "proper, genuine and realistic" was not favoured in the Court of Appeal, rather a matter, if relevant, must be more than merely adverted to; see Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337; (2008) 163 LGERA 400 at [57] - [58]. An important submission against the Applicant's arguments identified by Barrick is that the matters said not to be considered have all been identified in the E42 Modification Request (exhibit D), the Modified Request (exhibit B) and was material before the Director-General and the Minister. The ground of judicial review sought to be raised is not so much whether there has been any consideration of a matter as it is expressed in the Applicant's agent's submissions, but whether that consideration was adequate. Framed in that way the Applicant's agent's arguments stray closer to a merits argument which is not permissible in judicial review proceedings.

(a) life of mine

85 The Applicant's agent argues that the development consent was originally given for a mine life of 13 years consisting of 8 years extraction and 5 years processing but this circumstance was not considered by the Minister. Assuming this is a mandatory relevant consideration the documents before the Minister did refer to this issue (see par 48 to 49 above) so that as a matter of fact the failure to consider has not been established.

(b) ESD principles/Aboriginal heritage

86 The Applicant asserts a failure to consider ESD principles, particularly intergenerational equity and the precautionary principle, and aboriginal cultural heritage in particular. The passage of the judgment in Walker relied on by the Applicant's agent (incorrectly referring to [163] of Hodgson JA) is taken from a quotation of [159] to [167] of Biscoe J's judgment at first instance by Hodgson JA at [23]. It is not the conclusion of Hodgson JA. The Respondents submitted it cannot therefore provide support for the Applicant's agent's arguments as that reasoning was overturned on appeal. The Respondents have submitted, based on Hodgson JA in Walker at [41], that the obligation to consider the public interest and ESD principles arises at a general level and cannot be considered at the level of particularity for which the Applicant's agent contends. The reasoning in Walker was to the effect that in that case the public interest including ESD principles had to be considered at a general level. Such matters remain relevant as is also clear from the Court of Appeal in Walker . How they are taken into account will depend on the particular circumstances of a case.

87 In Kennedy (decided after Walker ) Biscoe J considered similar arguments to those made by the Applicant's agent in this case in relation to the validity of modification approvals under s 75W for a large residential subdivision at Sandon Point. The alleged ground arising for consideration was that the Minister failed to have regard to two principles of ESD in relation to aboriginal cultural heritage and that these principles are mandatory relevant considerations when considering a modification request under s 75W. At [77] - [80] Biscoe J held:

The public interest is a mandatory consideration in relation to approval of a concept plan under s 75O of the EPA Act and in relation to development approval: Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [39], [62]. Although the public interest consideration operates at a very high level of generality, it requires consideration of relevant ESD principles at the development approval stage: at [41], [62]. And the time has come in my view (as foreshadowed in that case) when it requires consideration of those principles at the concept plan stage: at [56].

Similarly, in my opinion, the public interest is a mandatory consideration in relation to modification of a project approval under s 75W (as the respondents accept) and requires consideration of relevant ESD principles.

The applicant places particular emphasis on the failure to consider two ESD principles - the precautionary principle and the principle of inter-generational equity - insofar as they relate to the protection of Aboriginal cultural heritage. These principles are set out in s 6(2) of the Protection of the Environment Administration Act 1991:

"(2) Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle-namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options,

(b) inter-generational equity-namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations..."

Given the broad definition of "environment' in s 4 of the EPA Act , Aboriginal artefacts and cultural heritage can be described as forming part of the environment.

88 The same considerations apply here. At [81] - [89] Biscoe J reviewed the evidence and concluded that the Minister did sufficiently take into account aboriginal heritage when the modifications for approval were made under s75W.

89 While I consider the approach in Kennedy identified above is correct, it is not necessary that I resolve the competing legal arguments of the extent to which the consideration of ESD principles is a mandatory relevant consideration including in relation to aboriginal cultural heritage assessment in relation to Mod 6. As a matter of fact, when the documents supporting the Mod 6 application are considered ESD principles including intergenerational equity and the precautionary principle were clearly identified and considered. The EA supporting the E42 Modification Request (exhibit D p 3-21 - 3-26) and the EA supporting the Modified Request (exhibit B p 1-10 - 1-19) refer specifically to ESD principles. The Assessment Report states (exhibit A p 291) that "the Department has assessed the modification application, the EA and Modified Request ... in accordance with the objects of the EP&A Act and principles of ecologically sustainable development." It addresses matters the subject of those principles such as impacts on water quality and flows, flora and fauna, aboriginal heritage and noise impacts at exhibit A p 297 - 309. Similarly, the Briefing Note considers water, noise, biodiversity and other issues (exhibit A p 287 - 288). While the Applicant's agent criticises the adequacy of the assessment that is essentially a question of merit and not a matter reviewable in these proceedings.

90 In relation to aboriginal heritage issues, the DGEAR dated 14 April 2008 (par 7(vi) above) require an assessment of the potential aboriginal heritage impacts of the revised mining operations, and a description of the measures to be implemented to minimise the impacts. The E42 Modification Request (exhibit D p 4-88 - 4-92), the Modified Request (exhibit B p 3-63 - 3-67) and the Assessment Report (exhibit A p 306) all refer to aboriginal cultural heritage and the impacts of the proposed Mod 6. Condition 3.3 of the development consent also identified the requirement to prepare an archaeological and cultural management plan which was done (exhibit E; see par 7(iii) above). The consideration is more than cursory and the Court is not able in judicial review proceedings to undertake its own merit assessment of whether the consideration is otherwise adequate, which is essentially what the Applicant's agent is seeking be done.

91 The ground of review of the failure to take ESD principles, particularly aboriginal heritage issues, into account as part of the approval process for Mod 6 fails.

(c) cumulative impacts/fundamental change

92 The Applicant's agent did not strongly press all aspects of this ground as noted above in par 16 in relation to (i) the use of the process water from the Lachlan River, (ii) the destruction of habitat of endangered species and (iv) risk of damage to the Lake Cowal ecology and aquifer from establishing a saline bore. No specific evidence on any of these matters was referred to which makes it difficult to address this part of the Applicant's case. There is also reference in the Applicant's agent's written submissions to the failure to consider these cumulative impacts in light of Mod 7 and Mod 8 but these were referred to essentially in passing and without any specific evidence referred to concerning their scope. I am unable to assess any part of this ground as it relates to Mod 7 and Mod 8.

93 The Respondents, particularly Barrick's submissions at par 54, addressed each matter raised to the effect that the relevant material did adequately address the matters raised. In the absence of a competing analysis from the Applicant's agent concerning the evidence relied on I accept these submissions

94 The alleged failure pressed by the Applicant's agent was in relation to consideration of undisturbed aboriginal objects and cultural heritage places, par 16 (iii) above. Reliance was placed on Anderson v Director-General, Department of Environment and Conservation [ 2006] NSWLEC 12; (2006) 144 LGERA 43 at [199] - [200] where I held that there had been a failure to consider cumulative impact of the destruction of aboriginal relics resulting from excavation work. My reasoning in Anderson may need to be considered in light of the Court of Appeal decision in Walker at some stage but I do not need to do so in order to resolve this ground. The ground is described as the failure to consider undisturbed aboriginal objects and cultural heritage places, and the Applicant's agent submitted that no new archaeological or other report had been prepared in relation to aboriginal cultural heritage for the new area to be disturbed under Mod 6, the green area identified in Fig 1-4 exhibit B. The DGEAR (par 7(v) above) require an assessment of potential aboriginal heritage impacts and a description of the measures to be implemented to minimise impacts. These do not require what the Applicant contends for. The Applicant's agent's submission attempts to redraft the DGEAR, which is impermissible in this judicial review action. As submitted by Barrick (see Barrick's submissions, par 52 above) aboriginal heritage was considered in the Modified Request and the Assessment Report in a more than cursory manner.

95 The POC (par 24) also refer to Mod 6 being a fundamental change to the mine footprint due in large part to the increased ore proposed to be extracted. For the reasons given by the Respondents (see par 38 and 54 - 55 above) this is not arguable as a matter of fact in the circumstances of Mod 6.

96 The Applicant's challenge to Mod 6 is unsuccessful on all the grounds of appeal, subject to final confirmation in relation to the ultra vires issue following my finding on the validity of Mod 9.

Proceedings No 40135/11 - challenge to Mod 9

Applicant's submissions

97 Barrick sought to modify the development consent by varying the period of the mine to 2019 and amending the definition of mining operations (see par 7(x) above). The Department of Planning's Assessment Report dated 17 January 2011 (exhibit A tab 16 p 644) refers to the modification sought as administrative in nature with negligible effect on the mining operations and environmental impacts (see par 7(xi) above).

98 The Assessment Report also states that: "Mr Williams' Points of Claim include an allegation that the Minister's approval is beyond power because it extended the approval for mining operations beyond the two year period sought by Barrick in the modified E42 Modification request." According to the Assessment Report the modification clarifies any uncertainty raised by the challenge to Mod 6.

99 On 17 January 2011 the Minister's delegate approved the Mod 9 application by reducing the life of the mine from 2024, granted in Mod 6, to 2019, inter alia. Six grounds of challenge are identified in the amended POC. I should note that the Applicant served two versions of the POC immediately before the hearing, neither of which was complete. The POC considered were a combination of those two POCs.

1. Improper exercise of power

100 The Minister improperly exercised his power by approving Mod 9 to allow ore extraction at a higher processing rate for a further six years and eight months beyond the original development consent without environmental assessment.

2. Non-existence of a critical fact

101 The Minister erred by considering that the two purported changes sought in the Mod 9 request were administrative and would have only negligible effect on approved mining operations and resultant environmental effects. However the increase of the mine life to 2019 is six years more than the original approval and is a substantial increase in extraction of about 70 per cent of ore with consequential environmental impacts. This cannot be a decision of an administrative nature contrary to the statement of the Minister when approving the modification. The Minister's view that Mod 9 was administrative in nature was based on a particular fact that did not exist, namely that the impacts operationally and environmentally of the approved modification were negligible and limited. Authority to support this is found in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 , Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 and Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 .

3. Failure to consider ESD principles

102 The same failure to consider ESD principles detailed above in relation to Mod 6 applies also to Mod 9. No environmental assessment has been undertaken for Mod 9 and there is no accurate description of the impact of the approval. The reference to ESD principles and the objects of the Act are tokenistic and cursory at best.

103 Further the Applicant's agent relies on par 30 - 42 of his submissions that the public interest and ESD principles in particular are relevant mandatory considerations.

4. Manifestly unreasonable

104 The consideration to give such an approval allowing Barrick to expand mining operations substantially as a minor administrative decision without environmental assessment is so manifestly unreasonable and against the public interest that no decision-maker could have made such a decision. The decision-maker failed to apply the most fundamental diligence expected of a public official to make a decision.

105 As Lord Greene surmises in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 223 - 224:

... nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them. The appeal must be dismissed with costs.

5. Jurisdictional fact

106 Further or in the alternative it is a jurisdictional fact that the Minister required an evaluation to conclude that the proposal was administrative and minor in nature having only a negligible impact on the environment prior to approving Mod 9.

6. Uncertainty

107 The decision to approve Mod 9 is uncertain. Mod 9 does not stand alone as it is interdependent with the validity of Mod 6. If Mod 6 is held to be invalid then Mod 9 will also be invalid. Mod 9 was approved in response to the allegation that the Minister acted ultra vires when she approved Mod 6. Further, it is uncertain what Mod 9 essentially approves and what assessment has been undertaken to affect the Minister's consideration.

Minister's submissions

1. Improper exercise of power

108 To the extent that the Applicant contends in his Points of Reply (at par 3), that Mod 9 was granted without consideration of the impacts of an extension of the period of ore extraction from 2013 to 2019, the Minister notes that:

(i) condition 1.1(a) of the development consent requires Barrick to carry out the development generally in accordance with, inter alia, the modification application and supporting EA submitted by Barrick as part of the Mod 6 process; consolidated conditions of consent exhibit A tab 18 p 727 .

(ii) the acronym "EA" is defined to include both the EA for the E42 Modification Request as it was originally proposed, and the Modified Request; consolidated conditions of consent exhibit A tab 18 p 725.

(iii) the Modified Request indicates that ore processing would be carried out until year 13 of the 15 year mine life (approximately 2017), with processing activities to be carried out during that period and up to year 15 of the mine life section 2.1, p 2-1.

(iv) the extension of mining operations was assessed by the Department in the context of Mod 6, on the basis of the material included in the EA for the E42 Modification Request (which sought a much longer extension of the mine life (11 years)) and the material in the Modified Request; see, for example, the description of the proposed project at exhibit A tab 12, p 284 and p 294.

(v) in recommending that Mod 9 be approved, the Department noted that it had assessed the proposed extension of mining operations in the context of considering whether to recommend that the Minister approve Mod 6; exhibit A t ab 16, p 645.

109 The Applicant's ground of the improper exercise of power misconceives what was sought and approved under Mod 9. An Assessment Report was prepared by the Department (exhibit A tab 16), although not required by s 75W. The Director-General has a discretion under s 75W(3) to notify a proponent of environmental assessment requirements which must be complied with before a modification application will be considered by the Minister. That power was not exercised for Mod 9, for the obvious reason that the modifications sought were limited to amending condition 2.1(1) to reduce the extent of mining operations in Mod 6 and clarify the meaning of "mining operations" such that only mining related activities such as rehabilitation could continue after the 2019 date sought by Barrick in the Modified Request. The Department considered that an assessment had already taken place in relation to Mod 6 concerning the increase in the ore processing rate and the two year extension of the life of the mine. The bulk of assessment is in the Modified Request (exhibit B). The Department had regard to that and was entitled to do so. The attack on Mod 9 cannot succeed.

2. Non-existence of a critical fact

110 This ground cannot arise in this case which must rely on common law principles of judicial review. The jurisdiction to consider such a ground is found in the specific statutory scheme in s 5(1)(h) of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) (Cth). That this is the case is identified in Bond at 357 - 358 and Rajamanikkam at 227. There is no such ground available to the Applicant in these proceedings. In any event it requires a finding that there was no assessment when the evidence shows that there clearly was.

3. Failure to consider ESD principles (POC 19)

111 The same arguments made in relation to Mod 6 apply to Mod 9. ESD principles were considered in relation to Mod 6.

4. Manifestly unreasonable (POC 20)

112 The Applicant makes a bald assertion that the decision was manifestly unreasonable and cannot meet the high threshold in Wednesbury .

5. Jurisdictional fact (POC 21)

113 The Applicant has not identified with any precision what jurisdictional precondition to the exercise of the power in s 75W of the EPA Act he alleges that the delegate did not comply with in this case. The only precondition to the exercise of the power to modify that is apparent from the terms of s 75W is receipt by the Minister of an application for that power to be exercised in relation to an existing approval.

114 In any event, the delegate had before him an evaluation of the Mod 9 application that had been prepared for him by the Department, following its assessment of the proposed modifications. As part of that assessment the Department had reviewed all of the environmental assessments which had been prepared in relation to the mine, and it expressed the view that they did not have a direct bearing on the proposed modifications, "other than as considered above": exhibit A tab 16 p 646. The Department had, of course, earlier referred to the fact that the two year extension to which Barrick sought to shrink the approval had been assessed as part of its consideration of the Modified Request, which application had been approved.

6. Uncertainty

115 Barrick's submissions rejecting the Applicant's agent's submission that Mod 9 is uncertain are adopted.

Barrick's submissions

116 The Applicant argues that Mod 9 suggests there is deficiency and circumvents court proceedings but the mere fact that doubt is removed in Mod 9 constitutes neither admission of error by the Respondents nor invalidity of the decision to approve Mod 9.

1. Improper exercise of power

117 The proposition that as a consequence of Mod 9 ore extraction is now allowed to be undertaken at a higher process rate for a further 6 years 8 months at par 67 of the Applicant's agent's written submissions "as provided in the Mod 6 E42 request", fails to properly identify what was approved in Mod 9, which was to reduce the operational life of the mine from 30 December 2024 to 30 June 2019, resulting in a 15 year operational mine life (13 years extractive mining and processing and 2 years processing only; exhibit A tab 15 p 636 - 648, exhibit B section 2.1, p 2-1) as compared to the original breakdown in the EIS of 13 years operational mine life (8 years extractive mining and processing and 5 years processing only; exhibit A tab 3 p 177, EIS section 2.1 and fig ES-4 at p ES-10 and p ES-9, exhibit A tab 18 p 725 and p 727). Barrick since the time of the Modified Request has only ever proposed to undertake 13 years of extraction and a further 2 years of processing. The Applicant seeks to turn an application to clarify the terms of the approval into a concession of error. There is no improper exercise of power in relation to Mod 9.

2., 3., 4. Non-existence of a critical fact/Failure to consider ESD principles/Manifestly unreasonable

118 As submitted by the Minister, the ground of non-existence of a critical fact can arise only under s 5(1)(h) and s 5(3) of the ADJR Act. Secondly, no critical fact is specified in any event.

119 The Applicant's agent mistakenly asserts, at par 72 to 74 of his written submissions, that ESD principles were not taken into account in the delegate's decision to approve Mod 9. This is incorrect, as appears from the express reference to these matters in the Assessment Report; exhibit A tab 16 p 646.

120 Far from being manifestly unreasonable, it is apparent that Mod 9 is a very proper administrative decision which operates to remove, and expressly so, an ambiguity in Mod 6 suggested by the Applicant in these proceedings.

6. Uncertainty

121 There is no uncertainty in Mod 9, the effect of which is clear. The extent of any invalidity in relation to Mod 6 (even if, contrary to these submissions, the Court were to find error and determine in its discretion to grant relief) would only be the period beyond that sought in the Modified Request, that is beyond the end of 2019. Consistently with the principles of severance, Mod 6 would be read down so as not to extend beyond December 2019. The assessment that was carried out for Mod 6 expressly assessed a two year extension to the life of the mine (exhibit A tab 12 p 293), and the Assessment Report dealt with that proposal (exhibit A tab 12 p 284). No uncertainty or other invalidity arises.

Finding on Mod 9 (40135/11)

122 As identified in the Minister's submissions the context for Mod 9 must be considered. The matters referred to at par 102 and par 112 above identify the nature of the changes effected by Mod 9 and the context for these. These should be considered when the respective grounds of appeal are considered.

1. Improper exercise of power

123 I am unclear on what precise legal basis the Applicant raises this ground of judicial review in the context of Mod 9. The only written articulation of the ground is in the POC at par 17 which states that the approval allowed ore extraction at a higher processing rate for a further six years and eight months beyond the original approval without environmental assessment. As identified by the Respondents' submissions, and as is evident from the terms of Mod 9, the period of the mine operations is reduced to 2019 from 2024 and the definition of "mining operations" was changed to clarify its meaning . The effect of Mod 9 is not as articulated by the Applicant's agent in this ground of appeal and it cannot therefore succeed.

2. Non-existence of a critical fact

124 This ground of judicial review is a creature of statute only available under particular statutory regimes such as s 5(1)(h) and s 5(3) of the ADJR Act as the Respondents submitted. It is not a common law ground of review available to the Applicant. The principal authority is Bond , an appeal from the Full Court of the Federal Court of Australia by way of judicial review under the ADJR Act of decisions made by the Australian Broadcasting Tribunal. The appeal was allowed and the orders of the Full Court were set aside.

125 Mason CJ (Brennan and Deane JJ agreeing at 365 and 369, respectively) at 334 - 344 considered the ambit of judicial review under the ADJR Act. In discussing statutory grounds of review at 355 - 360, his Honour compares these with the common law ground of review of error of law. At common law, the absence of evidence to sustain a finding or inference of fact gives rise to an error of law. The wrong finding of fact is not an error of law; so long as there is some basis for an inference, even if that inference appears to have been drawn as a result of illogical reasoning. While the common law ground of "error of law" provides context for the interpretation of the ADJR Act, Mason CJ said that a statutory ground of review is influenced by the scope and purpose of the ADJR Act.

126 Under the ADJR Act, findings of fact, including inferences, can be reviewed for error of law under s 5(1)(f) and on the ground that there was no evidence to justify the making of a decision under s 5(1)(h), which must be read in light of s 5(3). Section 5(3) provides that the ground in s 5(1)(h) is not taken to be made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence ... from which he could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.

127 His Honour said that the effect of s 5(3) was to severely limit the area of operation of the ground of review in s 5(1)(h). Mason CJ found that s 5(3)(b) was directed to proof of the non-existence of a critical fact to the making of the decision.

128 The Applicant also relied on a statement by Mason CJ at 359 that findings of fact are only reviewable on the ground that there is no probative evidence if they constitute "decisions" within the meaning of the ADJR Act. This statement actually appears at 355 and states that findings of fact and inferences are not reviewable under the ADJR Act unless jurisdiction is enlivened by the review of a "decision" or "conduct" referring to that specific statutory context. That passage is taken out of context and does not support a common law ground of judicial review based on the failure to find a critical fact.

129 The Applicant's agent also relied on Curragh , an appeal to the Full Court of the Federal Court of Australia where the appellant argued that a finding involved an error of law, there being no evidence of a fact found, a ground of review under s 5(1)(f). Alternatively, the appellant relied upon s 5(1)(h). At par 69 of his written submissions, the Applicant's agent quoted Black CJ at 220 - 221 to the effect that a decision may be based on facts critical to the making of the decision and/or on a critical finding of fact that leads the decision-maker to take one path in the process of reasoning rather than another. However, that statement was made in the context of his Honour's consideration of the statutory "no evidence" ground of review. Immediately above the relevant passage, his Honour (Spender and Gummow JJ agreeing) quoted Mason CJ at 357 in Bond regarding s 5(3)(b) and stated that it did not require the identification of a single particular fact that was said to be the foundation of the decision the non-existence of a critical fact. After the relevant statement relied upon by the Applicant, Black CJ continued that satisfaction of the requirements of s 5(3)(b) alone was insufficient as it would ignore the language of the ground provided by s 5(1)(h). To make out the ground under s 5(1)(h), it was necessary to prove an absence of evidence or other material of a particular fact upon which the decision was based. That decision also does not provide a basis for this ground of appeal.

130 The third case the Applicant's agent relied on was Rajamanikkam , another appeal from the Full Court of the Federal Court of Australia to the High Court. It is similarly unhelpful in the common law context as it involved consideration of the "no evidence" ground of judicial review under s 476(1)(g), as qualified by s 476(4), of the Migration Act 1958 (Cth). As observed by Gleeson CJ (at 227), those provisions mirrored s 5(1)(h) and s 5(3) of the ADJR Act, respectively. Gleeson CJ (at 233 - 234) quoted Mason CJ at 357 - 358 in Bond in interpreting the relationship between s 476(1)(g) and s 476(4). His Honour also quoted Black CJ at 220 - 221 in Curragh and similarly found that satisfaction of s 476(4)(a) or (b), while necessary, is insufficient as the ground of review was provided by s 476(1)(g). At par 71 of his written submissions, the Applicant refers to Callinan J (at 271) where he considers the meaning of the words "based on the decision" in s 476(4)(b) of the Migration Act. For the reasons already stated in relation to Bond and Curragh that case reflects a particular statutory context which gives rise to a statutory ground of review available in that context, not as a general ground of administrative law review.

131 No authorities which apply this ground of judicial review in a common law context in this Court or any other have been supplied by the Applicant. In their absence I consider this ground of appeal is not available.

132 Further the forming of an opinion that the Mod 9 application was administrative in nature is not a determination based on a finding of critical fact within the meaning of that term as analysed in the above authorities in any event.

3. Failure to consider ESD principles

133 On the assumption that such principles are mandatory relevant considerations (about which I make no finding in relation to Mod 9), the overall context for the assessment of Mod 9 as submitted by the Respondents must be considered in relation to whether there was a failure by the Minister's delegate to consider ESD principles. As identified by the Respondents there was a reference to these in the material prepared by the Department in relation to Mod 9 and in the Assessment Report. As a matter of fact the Applicant has not established this ground.

4. Manifestly unreasonable

134 Many cases have observed that establishing that a decision-maker has made a decision which is manifestly unreasonable in the Wednesbury sense is a high threshold. I reviewed a number of these authorities at [113] - [116] in Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [ 2009] NSWLEC 109 which was affirmed on appeal in Marrickville Metro Shopping Centre Limited v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67. Manifest unreasonableness was dealt with at [85] - [109] by Tobias JA (with Basten JA and Handley AJA concurring with additional reasons and observations) and particularly, at [108] - [109] his Honour states:

...Mason J pointed out in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 42, the necessity for a court to "proceed with caution ... lest it exceed its supervisory role by reviewing the decision on its merits".

[109] The cases are replete with this warning with the consequence that the success of a challenge on the Wednesbury unreasonable ground is confined to extreme cases involving, as Aronson et al opine at 376, "demonstrably absurd decisions".

135 Moreover, Mark Aronson, Bruce Dyer and Matthew Groves, Judicial Review of Administrative Action , 4th ed (2009) Thomson Reuters at [6.215] (p 375 - 377) states:

...unreasonableness review serves a useful purpose. Confined to extreme cases, its application should not involve the courts in trawling through the fine details of the administration's work, looking for errors. Rather, it amounts to the sort of low-level quality control which low level management systems should maintain in any event. Furthermore, there would be serious credibility costs to the system if demonstrably absurd decisions were allowed to go unchecked...

It is particularly hard to establish unreasonableness "where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste". According to Brennan J in Attorney-General (NSW) v Quin , the ground is "extremely confined". Weinberg J said that cases satisfying Wednesbury's "stringent" standard are "rare".

136 The Applicant's agent has essentially done no more than assert that the Minister's delegate's decision to approve Mod 9 was manifestly unreasonable in his view. The matter is not self evident and more must be done to establish such a case. The decision is clearly not absurd. The Applicant has not met the high threshold of proof he bears of establishing this ground.

5. Jurisdictional fact

137 The Applicant's agent has not articulated with any clarity what jurisdictional fact is said to arise in relation to Mod 9 in this ground. The fact is stated to be an evaluation to conclude the proposal was administrative and minor in nature. The particular for this ground is described as the existence of actual facts in relation to the impact of increased ore extraction before the decision was made. Principles relevant to the consideration of whether a jurisdictional fact arises are identified above in relation to Mod 6, summarised at par 63 to 72. A fundamental matter is the need to construe the relevant statute (per Timbarra at [37]). No submission was made orally or in writing by the Applicant's agent addressing the terms of s 75W and how the ground as articulated related to the wording of that section, Pt 3A or the EPA Act as a whole. The matters raised by the Applicant's agent as giving rise to a jurisdictional fact do not obviously arise from the terms of s 75W(3) or (4). In the absence of a clearer articulation of this ground addressing the terms of s 75W it cannot succeed.

6. Uncertainty

138 While the Applicant's agent stressed that the effect of Mod 9 was uncertain that is not apparent from its terms. Legal uncertainty in judicial review proceedings requires that the meaning of the impugned act, decision or delegated legislation is reasonably precise; Aronson, Dyer and Groves at [6.165]. There is nothing uncertain about the changes to the conditions of development consent made in Mod 9. The Respondents' submission on this ground are otherwise adopted. This ground of appeal fails.

139 The Applicant's challenge to Mod 9 is unsuccessful. Consequently the challenge to Mod 6 based on the approval being ultra vires because the life of the mine was extended to 2024 cannot succeed.

140 The Applicant has not succeeded in these two Class 4 proceedings and they should be dismissed. There is no reason to consider the additional affidavit the Applicant's agent sought to rely on in relation to discretion. In the absence of agreement of the parties the issue of costs will need to be determined. I will reserve costs as I have not heard any submissions on that matter.

Orders

10/40499

141 The Court makes the following orders:

1. The Applicant's summons filed on 28 June 2010 dismissed.

2. Costs reserved.

11/40135

142 The Court makes the following orders:

1. The Applicant's summons filed on 22 February 2011 dismissed.

2. Costs reserved.

Decision last updated: 12 April 2011