Reported Decision: 168 LGERA 4374 NSWLR 733[2009] ALMD 5509
New South Wales
Court of Appeal
CITATION: BARRICK AUSTRALIA LTD v WILLIAMS [2009] NSWCA 275 HEARING DATE(S): 1 July 2009
JUDGMENT DATE:
3 September 2009JUDGMENT OF: McColl JA at 1; Basten JA at 2; Sackville AJA at 57 DECISION: (1) Allow the appeal and set aside the judgment and orders of the Land and Environment Court made on 13 February 2009.
(2) In lieu thereof order that the amended summons be dismissed.
(3) Direct that if any party seeks a particular order as to costs in this Court, or in the Court below, it should file a notice of motion, together with submissions in support of any proposed order within 14 days of this judgment, failing which there will be no order as to the costs of proceedings in this Court or in the Land and Environment Court.
CATCHWORDS: ENVIRONMENT AND PLANNING – development control – request for modification by Minister of terms of development approval – scope of power to modify limited by requirement that request fall within terms of statutory language conferring power – such requirement constituting precondition to evaluative judgement – whether Court to undertake that assessment – Environmental Planning and Assessment Act 1979 (NSW) s 75W - WORDS AND PHRASES – "modification of approval" – "jurisdictional fact" LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), ss 5, 75B, 75F-75I, 75W, 75X, 82, 96; Pts 3A, 4 CATEGORY: Principal judgment CASES CITED: Colonial Bank of Australasia v Willan (1874) 5 PC 417
Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297
Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611
North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468
Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13
Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315
Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414
The Owners of the Ship Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55
Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [4.305] PARTIES: Barrick Australia Ltd – Appellant
Neville “Chappie” Williams – First Respondent
Minister for Planning – Second Respondent
New South Wales Director-General for Planning – Third RespondentFILE NUMBER(S): CA 40059/09 COUNSEL: N J Williams SC/C R Ireland – Appellant
B W Walker SC/S E Pritchard/J Kay Hoyle – First Respondent
M J Leeming SC/A M Mitchelmore – Second and Third RespondentsSOLICITORS: Blake Dawson – Appellant
Environmental Defender’s Office (NSW) – First Respondent
Department of Planning…
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Details
- AGLC
- Barrick Australia Ltd v Williams [2009] NSWCA 275
- Case
- [2009] NSWCA 275
- Decision Date
CaseChat Overview and Summary
Barrick Australia Ltd appealed to the Court of Appeal of New South Wales against a decision of the Land and Environment Court concerning a modification of a development approval. The dispute centred on the scope of the Minister's power under section 75W of the *Environmental Planning and Assessment Act 1979* (NSW) to modify development approvals.
The primary legal issue before the Court of Appeal was whether the Minister's power to modify a development approval under section 75W was engaged only if the proposed modification fell within the terms of the statutory language conferring that power. This involved determining whether the requirement for the request to fall within the statutory language constituted a precondition to the Minister's evaluative judgment, and if so, whether the Court was required to undertake that assessment.
The Court of Appeal held that the statutory language conferring the power to modify was a precondition to the exercise of that power. It reasoned that the Minister's power under section 75W was not unfettered and that a request for modification must first satisfy the threshold requirement of falling within the scope of the power granted by the Act. The Court determined that the Land and Environment Court had erred in its assessment of this jurisdictional fact.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment and orders of the Land and Environment Court, and ordered that the amended summons be dismissed.
The primary legal issue before the Court of Appeal was whether the Minister's power to modify a development approval under section 75W was engaged only if the proposed modification fell within the terms of the statutory language conferring that power. This involved determining whether the requirement for the request to fall within the statutory language constituted a precondition to the Minister's evaluative judgment, and if so, whether the Court was required to undertake that assessment.
The Court of Appeal held that the statutory language conferring the power to modify was a precondition to the exercise of that power. It reasoned that the Minister's power under section 75W was not unfettered and that a request for modification must first satisfy the threshold requirement of falling within the scope of the power granted by the Act. The Court determined that the Land and Environment Court had erred in its assessment of this jurisdictional fact.
Consequently, the Court of Appeal allowed the appeal, set aside the judgment and orders of the Land and Environment Court, and ordered that the amended summons be dismissed.
Orders
Orders of the court
(1) Allow the appeal and set aside the judgment and orders of the Land and Environment Court made on 13 February 2009. (2) In lieu thereof order that the amended summons be dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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