Capricornia Prospecting Pty Limited and 2 Ors v Donnelly and Mundine - [2002] NSWCA 254

CITATION: Capricornia Prospecting Pty Limited & 2 Ors v Donnelly & Mundine [2002] NSWCA 254

FILE NUMBER(S): CA 40829/01

HEARING DATE(S): 04/07/02

JUDGMENT DATE:
15 August 2002

PARTIES :

Capricornia Prospecting Pty Limited, Ross Mining NL and Timbarra Gold Mines Pty Ltd (Appellants)
Andrew Donnelly (First Respondent)
David Mundine (Second Respondent)

JUDGMENT OF: Handley JA at 1; Stein JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40243/98

LOWER COURT
JUDICIAL OFFICER : Bignold J

COUNSEL: M G Craig QC/D T Miller (Appellants)
In Person (First Respondent)
In Person (Second Respondent)

SOLICITORS: Phillips Fox (Appellants)

CATCHWORDS: TOWN PLANING - whether consent from Council and permit from Ministerial Corporation both required - whether development consent valid - whether consent dealt with whole of application - whether Council failed to give consideration to material circumstances - WATER PERMIT - whether permit merely replaced an existing entitlement - whether replacement in part sufficient - JURISDICTION - whether Land and Environment Court had jurisdiction to determine validity of permit granted under the Water Act 1912. D

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 4, 92,
Water Act 1912, ss 10, 21B, 22BA
Water Administration Act 1986, s 12
National Parks and Wildlife Act 1974, s 118A
Protection of the Environment Operations Act 1997, s 253
Land and Environment Court Act 1979, s 20(3)

CASES CITED:
Mison v Randwick City Council (1991) 23 NSWLR 734
Thorpes Ltd v Grant Pastoral Co Pty Ltd (1954-55) 92 CLR 317
Butler v Attorney General for the State of Victoria (1961) 106 CLR 268
Rose v Hvric (1963) 108 CLR 353
Commercial Radio Coffs Harbour Limited v Fuller (1986) 161 CLR 47
Australian Gas Light Co v The Valuer General (1940) 40 NSWSR 126
NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509
Hope v The Council of the City of Bathurst (1980) 144 CLR 1
Commissioner of Taxation v Brixius (1987) 16 FCR 359

DECISION: See paragraph 60.

CA 40829/01
LEC 40243/98

HANDLEY JA
STEIN JA
DAVIES AJA
Thursday 15 August 2002

CAPRICORNIA PROSPECTING PTY LIMITED & 2 ORS v DONNELLY & MUNDINE

JUDGMENT

1 HANDLEY JA: I agree with Davies AJA.

2 STEIN JA: I agree with Davies AJA.

3 DAVIES AJA: This is an appeal from the judgment of a judge of the Land and Environment Court of New South Wales. On the hearing of the appeal, the appellants, Capricornia Prospecting Pty Limited (“Capricornia”), Ross Mining NL (“Ross Mining”) and Timbarra Gold Mines Pty Limited (“Timbarra”), were represented by Mr M.G. Craig QC and Mr D. T. Miller of counsel. For the purposes of these reasons, it is not necessary to distinguish between the appellants. The respondents, Andrew Donnelly and David Mundine, appeared for themselves, the Court having refused leave to Mr A. Oshlack, an unqualified person, to appear for them.

4 The issue before his Honour concerned a development consent and waters permits granted to the appellants with respect to the Timbarra Gold Mine, on the Northern Tableland of New South Wales. By the time the matter came on for hearing before his Honour, the mine had closed and the appellants’ interest was to rehabilitate the area. However, the respondents had opposed the development on archaeological and environmental grounds and wished to pursue their claim that relevant permits and licences which had been granted to the appellants were void. The respondents’ application for interlocutory relief preventing the development from proceeding had been refused.

5 In his judgment, the trial Judge did not find it necessary to deal with many of the issues which the respondents had raised before him and he dismissed several grounds on which the respondents relied. The judgment nevertheless raises many issues which were challenged in the notice of appeal. Many of the grounds of appeal lost utility once the mine had been closed. The appeal, as argued, raises only a few discrete issues. There is no cross appeal and there is no notice of contention.

Permit Under Environmental Planning & Assessment Act 1979

6 The issues in the appeal do not concern the development of the mine itself. Nor do the issues concern the widening of Timbarra Road for which development consent had also been granted.

7 The appellants held a licence under the Water Act 1912 to pump water from Timbarra River. However, they formed the view that it would be preferable to pump from Nelsons Creek, a tributary of the Timbarra River, and to draw water at a point only two kilometres away from the dam associated with the mine. The appellants required a permit for that purpose.

8 On 2 June 1998, the appellants applied to the responsible authority, the Tenterfield Shire Council, under Part 4 of the Environmental Planningand Assessment Act 1979 (“the EPA Act”), for development consent. The learned trial gave the following description of relevant parts of the application for development consent.

The prescribed application form

Installation of a ‘work’ for a Water Licence and an associated pipeline requiring consideration in accordance with Div 1 of Pt IV of the Environmental Planning and Assessment Act 1979;

letter from Russell Hetherington

Ross Mining NL considers that the proposed development subject to this application will have a ‘negligible effect’ (see Note 7 of Form 1) however the applicant has nonetheless prepared a short Statement of Environmental Effects (SEE), which is supported by a Statement of Environmental Effects and a Review of Environmental Factors which was prepared for the upgrade of the Timbarra Road by the Faculty of Engineering, University of Technology, Sydney and Review of Environmental Factors which has been prepared by Water Studies Pty Ltd in support of the Application for a Water Licence pursuant to Section 10 of the Water Act 1912.

As noted in the SEE, the development subject to this application is also subject to an application pursuant to Section 10 of the Water Act 1912 and I am reminded that both applications require advertising and invite public comment. With this in mind, it will assist in the processing of both these applications if advertising might be attended to on or about the same time and in this regard, I respectfully suggest that the Council might confer with Mr Jim Morison at the Department of Land and Water Conservation, Grafton (telephone number 02 6640 2000);

Statement of Environmental Effects

The issue of a water licence and laying out of a temporary conduit for the purposes of pumping water will require a development consent for the purposes of the Environmental Planning and Assessment Act 1979 (the EP&A Act). This consent is applied for in the name of Ross Mining NL and is still a requirement even though it is a temporary arrangement and development consent has already been obtained for the widening of the Timbarra Road. “

a Statement of Environmental Effects and a Review of Environmental Factors

Water Act

Assessment Report

Assessment Report on Potential Impacts on Threatened Species Associated with pumping water from two creek systems on Timbarra Plateau

That Assessment included in Section 8 what was described as ‘a Section 5A-Threatened Species Conservation Act 1995 – Assessment of Flora and Fauna Components of the Site’ which Assessment included the following passage:

Given the nature of the development it is considered that there will not be a significant impact on species other than frogs, which are listed in Table 3. The development will have minimal impact on the terrestrial habitats of threatened species through a habitat sensitive development process which will incorporate a number of mitigation measures as outlined above. Potential habitat disturbance will be largely limited to the frog habitat occurring (or likely to occur) within the pump station study areas. The species considered in this eight part test are Litoria subglandulosa and Mixophyes balbus.

Section 9

The only Threatened flora or fauna species known to occur in the immediate vicinity of the proposed Pump Sites is Litoria subglandulosa, however there is potential habitat for Mixophyes balbus. Litoria subglandulosa was identified from call responses and a captured individual from within the stream section that includes the proposed Mclean Creek pump site. General impacts from the proposal are considered to be minor providing all proposed safeguards and mitigation measures are implemented and maintained.

Some additional studies are required within the creek systems at the pump sites and along the proposed access/pipe-line routes. Such studies would investigate further the potential occurrence of Threatened flora and fauna species and enable a clearer determination of the appropriate safeguards/mitigation measures required to protect these species.”

9 The trial Judge held that a permit under the EPA Act was necessary. His Honour said:

“This is because of the provisions of the LEP which apply to Portion 37 (which includes that section of Nelsons Creek in which the water pump was proposed to be installed) zoning that Portion (including the relevant section of Nelsons Creek traversing the Portion) Zone No 1(a) General Rural, in which Zone, development for the purposes of a ‘mine’ is a purpose of development for which development consent is required (being also declared ‘advertised development’).

Part 2 Schedule 3

In view of the relevant provisions of the LEP and the characterisation of the proposed development as development for the purposes of ‘a mine’ I am of the opinion that the pumping of the water from Nelsons Creek and the use by the Gold Mine of the water so pumped, is relevantly ‘development of land’ within the meaning of the EP&A Act – vide the following definitions contained in s4(1):

Development in relation to land means:

….

(ii) the use of that land

….

land

….

Accordingly, in terms of the LEP, the pumping of water from Nelsons Creek to the Timbarra Gold Mine site was relevantly development (being the use of the waters) for the purposes of mine, which required the grant of development consent, if the development were to be lawfully carried out.”

10 I agree with the trial Judge that the proposed works required consent under Part 4 of the EPA Act.

11 The Council granted consent under s92 of the EPA Act, subject to a multitude of conditions of which the first was:

The development consent does not include consent for the pump or the extraction of water from Nelsons Creek

12 In his reasons for judgment, the trial Judge raised a point which had not been put on behalf of the present respondents, namely, that development consent was needed for the pump and the pumping of water from Nelsons Creek and that consent was not granted in the Council’s determination. The respondents had not raised this point in their particulars of claim.

13 The trial judge referred to other evidence to support his view that the development consent had deliberately omitted consent to the pump and the pumping of water from Nelsons Creek. His Honour said:

limited

s10

14 Although Mr Craig has raised points of natural justice with respect to his Honour’s consideration of this issue in the absence of submissions on it from the parties, I consider that it was necessary for his Honour to give consideration to the terms of the consent, and to its ambit. The preferable course would have been for his Honour to have referred the issue to the parties once he had identified it. However, I am satisfied that all relevant evidence is before the Court. The appeal books are voluminous. They include the reports which went to Council for its consideration and which set out the recommendation to Council, which recommendation the Council accepted. It is unnecessary to remit the matter back to the trial judge for further consideration.

15 The trial Judge considered that the failure of the Council to deal with the entirety of the application before it invalidated the consent which issued. His Honour relied upon Mison v Randwick City Council (1991) 23 NSWLR 734 where Priestley JA, with whom Clarke and Meagher JJA agreed, said at 737:

“In my opinion if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application … Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application.”

16 In my opinion, however, the Council did not impose a condition which significantly altered the development in respect of which consent was sought. The Council simply failed to give consent to an aspect of the development in respect of which consent was sought. The Council did that because it considered that the function of giving consent to the pump and the pumping of water from Nelsons Creek was the function of the Ministerial Corporation, the body having the administration of the WaterAct 1912.

17 It did not follow that the Council failed to give proper consideration to the totality of the development proposed. The documents tendered in evidence from the Council’s file show that the Council’s consultant Kathy Martin and the Council’s officers considered the environmental implications of the pump and pumping water from Nelsons Creek. They had before them, inter alia, the detailed information which the appellants had provided.

18 There was correspondence between Kathy Martin, the Council’s consultant, and Mr Russell Hetherington, the appellants’ consultant, raising the possibility of ecological harm and the need for additional studies. Ms Martin appears to have accepted Mr Hetherington’s lengthy response which includes the paragraph:

not

19 A lengthy and detailed report which went to Council from the Council’s Director of Environmental Services concluded that the impact of the proposal on ecological communities was likely to be minor and could be controlled by the imposition of conditions. The report said, for example:

“The use of fuel and oils associated with the pumps themselves, could be a potential threat to water quality and hence threatened frog species. The threat of contamination of the watercourse will be minimised by the placement of pumps well away from the water and by strict adherence to the proposed water quality controls as detailed in the Company’s MOP (Ross Mining N.L. 1997) (Greenloaning Biostudies, June 1998, p 21).”

20 The Council in its Determination of 24 September 1998 adopted the report and included many conditions to protect against ecological and other environmental damage, including the following:

“4. All safeguards and mitigation measures relevant to threatened species included in the Threatened Species Management Plan – Timbarra Gold Project Mining Lease 1386 (A. Martin, Greenloaning Biostudies Pty Ltd, January 1998) and the Flora and Fauna Impact Assessment – Timbarra Gold Mine Proposed Access Road (Greenloaning Biostudies Pty Ltd, ERM Mitchell McCotter, February 1998) are to be implemented as appropriate for the development.

In addition the following measures are to be implemented and details of the measures submitted to Council prior to commencement of works:

(a) measures to ensure that the water pipeline does not form a major continuous barrier to small ground fauna,

(b) pre-clearing surveys to be undertaken prior to development of the access route,

(c) on the basis of results of pre-clearing and pre-development surveys, development of an appropriate monitoring programme for the pump site, and

(d) a rehabilitation program for those areas disturbed by the development to be implemented on decommissioning of the pump.”

…

9. …

…

11. The pump is to be bunded and any spillage is to be immediately cleaned up and waste collected and removed from the site. No fuel is to be stored on the site. Details are to be submitted to the satisfaction of Council’s Director of Environmental Services prior to construction of the bund.”

21 The safeguards and mitigation measures referred to in condition 4 included steps to be taken to minimize damage from the installation and operation of the pump and the extraction of water from Nelsons Creek. Conditions 9(c) and 11 also dealt with the pump.

22 It does not seem likely that, if the Council had granted consent to the pump and the pumping of water from Nelsons Creek it would have imposed any additional protective conditions. Its conditions covered the field. I am persuaded that the Council did give attention to, and satisfied itself about, the totality of the development which the appellants proposed.

23 The trial judge held that the Council deliberately excluded the pump and the pumping of water from Nelsons Creek from its consideration as it believed that that matter was the sole responsibility of the Ministerial Corporation which had the administration of the Water Act 1912 and of the Water Administration Act 1986. His Honour said:

“Additionally, the documentary evidence clearly establishes that the fourth Respondent’s consideration of the environmental impact of the development and the effects on threatened species etc deliberately excluded consideration of the impact on threatened frog species of the pumping of water from Nelsons Creek.”

24 As the Ministerial Corporation had the knowledge, experience and expertise to deal with the issue as to water levels and the impact on the Timbarra River system of pumping water from Nelsons Creek, I would have expected the Council to leave detailed consideration of that matter to the judgment of the Ministerial Corporation and to deal with it by imposing a condition that a permit or licence from the Ministerial Corporation be obtained. That is effectively what the Council did.

25 However, the Council did consider those issues to which it was needful that it turn its attention, particularly the welfare of the fauna and flora on the Timbarra plateau. It did not ignore the possibility of harm to threatened frog species but decided that the imposition of conditions would provide adequate protection. In taking that view, the Council would have been influenced by the Greenloaning Report which appears to have been accepted by the Council’s consultant and by its officers.

26 It is worth mentioning in this respect that the two allegations of harm to threatened frog species which were dealt with by his Honour, one alleging a breach of condition 9 of the development consent and the other a breach of s 118A of the National Parks & Wildlife Act 1974, were both dismissed by his Honour at a later stage in his Honour’s reasons for judgment.

27 For these reasons, I am of the view that the consent granted by the Council was not, insofar as it went, invalidated by lack of consideration of relevant matters. However, the appellants were still left with the necessity of obtaining consent under the EPA Act for the pump and the pumping of water from Nelsons Creek.

28 Mr Craig submitted that the Council was correct in the view which it took of its own powers and that such consent was not required. He referred to s12 of the Water Administration Act which provided inter alia:

12. Control of use and flow of water

(1) The right to the use and flow, and to the control, of:

(b) the water conserved by any works,

(d) sub-surface water,

is vested in the Ministerial Corporation except to the extent that is otherwise provided by this Act or to the extent that the right is divested by the exercise of a function of the Ministerial Corporation.

(2) The right conferred by subsection (1) prevails over any authority conferred by or under another Act, including a later Act than this Act.

(3) In the exercise of the right conferred by subsection (1) or of any other function, the Ministerial Corporation may take such measures as the Ministerial Corporation thinks fit for:

(i) environmental protection.”

29 Mr Craig submitted that the provisions of s12 prevailed over the provisions of Part 4 of the EPA Act. He referred to Thorpes Ltd v Grant Pastoral Co PtyLtd (1954-55) 92 CLR 317, in which, at 331, Fullagar J, with whom Dixon CJ and Webb J agreed, said that the Water Act 1912-1946, and its forerunner the Water Rights Act 1896, were designed,

“… to enable the Crown, in a country in which water is comparatively scarce and important commodity, to exercise full dominion over the water of rivers and lakes and to undertake generally the conservation and distribution of water. For the attainment of that object it was not necessary to destroy anybody’s rights, but it was necessary to give to the Crown, or to some statutory authority, overriding rights to which private rights must, if need arise, give way.”

Water Act

30 However, the principle to be applied is that stated by Fullagar J in Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 where his Honour said at 275-6:

Garnett v Bradley

contraria

Stradling v Morgan

….

leges posteriores priores contrarias abrogant

generalia specialibus non derogant

Rose v Hvric

31 The provisions of the Water Administration Act and of Part 4 of the EPA Act are not inconsistent. We are not here concerned with an activity carried out by the Ministerial Corporation. What occurred was that the Ministerial Corporation, having the right to the use and flow and the control of the water in rivers, conferred by means of permits rights on the appellants to pump water from Nelsons Creek. There is no warrant for concluding that those rights were not to be subject to the ordinary laws of the land. The rights conferred by the permits issued by the Ministerial Corporation had no greater effect than would the rights which a lessee or licensee of land have by reason of its holding of that right. The carrying out of activities on land is subject to the provisions of the EPA Act, as well as to other relevant laws. See Commercial Radio Coffs Harbour Limited vFuller (1986) 161 CLR 47.

32 It is not in dispute that the EPA Act includes rivers and streams within its ambit. Section 4 of the EPA Act defines “land” as follows:

land

(a) the sea or an arm of the sea,

(b) a bay, inlet, lagoon, lake or body of water, whether inland or not and whether tidal or non-tidal, and

33 In my opinion the appellants, who wished to pump from Nelsons Creek, were required to obtain a permit from the Ministerial Corporation and also a development consent from the Tenterfield Shire Council under Part 4 of the EPA Act.

34 I need not discuss s91AB of the EPA Act, which then applied, except to say that, by subsection (1), it permitted a development consent to be granted for the development for which the consent was sought, or for that development except for a specified part or aspect of that development. The Council so acted, considering that it did not have the power to grant consent for the totality of the development sought.

35 There should be a declaration that the development consent did not give the consent which the appellants required under the EPA Act for the pump and the pumping of water from Nelsons Creek, but that the consent granted was not invalidated thereby.

Water Permits

36 Section 22BA of the Water Act provided inter alia:

22BA Invalidation of applications for entitlements

(a) the requirements of the persons already authorised by law to take water from the water source, and

(b) such other possible requirements for water from the water source as are determined by the Ministerial Corporation.

(2) The Ministerial Corporation may, by order published in the Gazette, declare that, until the order is revoked, an application for an entitlement to which the order applies may not be made after a specified date (being a date not earlier than the date of publication) if the entitlement would authorise the taking of water from a water source specified in the order that is a water source to which this section applies.

(3) An order may be made to apply:

(a) to a specified application for an entitlement,

(b) to all applications for entitlements,

(d) to all applications for entitlements other than a specified application for an entitlement or a specified class of applications for entitlements.

An order does not apply to an entitlement that would merely replace an existing entitlement

(5) If an application for an entitlement to which an order applies is made while the order is in force, the application is invalid and shall be rejected by the Ministerial Corporation.”

(emphasis added)

37 The challenge made by the respondents below was a challenge to the validity of permits to which the provisions of s22BA applied. The proceedings were in the nature of judicial review proceedings in this respect. The jurisdiction of the Court was limited to that provided by s253 of the Protection of the Environment OperationsAct 1997 which permits the Court to make orders if a breach or a threatened or apprehended breach of a relevant law is causing or likely to cause harm to the environment. The Court had no power to review the merits of the grant of a water permit.

38 Under s22BA of the Water Act, an order was published in the Government Gazette on 4 August 1995. That order declared that no application for an entitlement may be made except as specified. One of the exceptions specified was:

“(c) stock purposes (not associated with feedlots or piggeries), industrial purpose and recreational purposes where the annual water use will not exceed 5 megalitres per year.”

39 Water Permit No 30PE002311 (“2311”) was issued on 16 April 1998 for a period of six months and was renewed on 14 October 1998 for a similar period. It was a condition of the permit that “pumping from Nelsons Creek shall only be undertaken for the purpose of the construction of the infrastructure ….. this permit in no way confers authority for water to be utilized from the abovementioned creek for the purposes of mining and/or processing”.

40 As there was nothing in the permit to impose a limitation of 5 megalitres per year, the trial judge was not satisfied that the permit was granted for a permitted purpose. There was no evidence before him that it had been intended that the water use would not exceed 5 megalitres per year. I see no error in that finding.

41 A water permit, No 30PE002321 (“2321”), was granted on 3 December 1998 for industrial (mining) purposes. At that time, the relevant s22BA order was that published in the Government Gazette of 23 October 1998. There was no relevant exception.

42 An issue in this appeal is whether the permits were valid by reason of s22BA(4) which provided that an order does not apply to an entitlement “that would merely replace an existing entitlement”.

43 On 24 July 1997 the Ministerial Corporation had granted to the appellants water licence No 30SL065251 to extract water from the Timbarra River for the purpose of water supply for mining and industrial purposes for a period of five years from 22 July 1997. This licence was granted notwithstanding the then existing s22BA order as the application for the licence had been lodged before the order came into force.

44 The trial Judge considered that s 22BA(4) did not apply to the subsequent permits 2311 and 2321 as the new permits did not wholly replace, in the sense of wholly substitute for, the existing entitlement.

45 In my opinion, his Honour’s approach was wrong. The word “replace” is an ordinary word of the English language and it is used in the section in that sense and not in some special sense. The principle to be applied is that stated by Jordan CJ in the Australian Gas Light Co v The Valuer General (1940) 40 NSWSR 126 where his Honour said, at 137-8:

Girls’ Public Day School Trust v Ereaut

Life Insurance Co. of Australia Ltd v Phillips

McQuaker v Goddard

Camden v Inland Revenue Commissioners

In re Ripon (Highfield) Housing Confirmation Order

White and Collins v Minister of Health

Caledonian Railway v Glenboig Union Fireclay Co

Attorney General for the Isle of Man v Moore

Commissioners for Special Purposes of Income Tax v Pemsel

Girls’ Public Day School Trust v Ereaut

Attorney General for the Isle of Man v Moore

Farmer v Cotton’s Trustees

Currie v Inland Revenue Commissioners

Inland Revenue Commissioners v Lysaght

In re Ripon (Highfield) Housing Confirmation Order

White & Collins v Minister of Health

Farmer v Cotton’s Trustees

Colonial Mutual Life Assurance Society Ltd v Federal Commissioner of Taxation

Farmer v Cotton’s Trustees

Mersey Docks and Harbour Board v West Derby Assessment Committee and Bottomley, etc

Farmer v Cotton’s Trustees

Currie v Inland Revenue Commissioners

Inland Revenue Commissioners v Lysaght

Mersey Docks and Harbour Board v West Derby Assessment Committee and Bottomley, etc

NSW Associated Blue-Metal Quarries Limited v Federal

Commissioner of Taxation

Hope v The

Council of the City of Bathurst

Commissioner of Taxation v Brixius

46 The water licence was granted on 22 July 1997 for the purpose of “water supply for mining & industrial purposes”. It permitted pumping from the Timbarra River. The following condition, inter alia, was imposed:

“(4) The authorised work shall not be used unless the discharge of the Timbarra River at the Drake Gauge is greater than 60 megalitres per day (such discharge corresponding to a reading of 1.12 metres on the said gauge or such other reading as may be determined from time to time).”

47 Permit 2321 issued 3 December 1998 authorized the pumping from Nelsons Creek for “Water supply for industrial (mining) purposes” by means of a 100 mm submersible pump. A condition of the permit was that:

“(11) The total amount of water taken from Nelsons Creek under this permit and from the Timbarra River under License Number 30SL065251 shall not exceed 915 megalitres in any period of 12 months.”

48 The permit did not expressly say that pumping from Nelsons Creek was limited to 183 megalitres per annum. However, this was intended.

49 On 7 January 1999 an officer of the Ministerial Corporation wrote to the appellants to say:

“As you are aware, the license and permit applications seeking authorisation of a pump on Nelsons Creek were intended as a part replacement of the entitlement already held under License No 30SL065251 (pump on the Timbarra River). The subject permit was issued in satisfaction of this requirement.

However, it was intended that the maximum quantity of water which could be extracted from Nelsons Creek under authority of the subject permit, was not to exceed 183 megalitres in any period of 12 months. This would not prevent additional water being extracted (if required) from the Timbarra River under the existing license. The existing condition (11) of the permit could be interpreted as allowing abstraction of up to 915 megalitres from Nelsons Creek in any period of 12 months. This is contrary to all documentation and information upon which the permit approval was based.”

“(11) The total amount of water taken from Nelsons Creek under authority of this permit shall not exceed 183 megalitres in any period of 12 months.”

50 Shortly thereafter, the following condition was imposed upon the water licence:

“(5) The total volume of water taken from the Timbarra River under authority of this license shall not exceed 732 megalitres in any period of 12 months.”

51 It is clear that the new permit was intended to be a part substitute for the entitlement under the water licence. The purpose for which the water was to be pumped was the same. The effect of the water permit was to permit the water to be taken at a place higher up in the river system. It appears that, from the point of view of the Ministerial Corporation, there was no particular significance in this fact.

52 In my opinion, it was open to the Ministerial Corporation to conclude that the permit would “merely replace” the licence. The permit was not intended to supplement the entitlement granted by the licence. Perhaps of more importance is the fact that the Ministerial Corporation was entitled to conclude that the effect of what was done was merely to allow the appellants to draw water from the river system at a more convenient site nearer the mine. No additional water entitlement was sought and it was not contemplated that the appellants would pump from both Nelsons Creek and the River, although the licence would have permitted that to be done.

53 The same reasoning does not apply to permit 2311 issued on 2 June 1998 and renewed on 14 October 1998. That permit was issued for six months for the following purpose “water supply for industrial (construction) purposes”. As the purpose was different from that expressed in the licence and as there is no evidence which shows that the permit was to be related in any way to the licence, I consider it would not have been open to the Ministerial Corporation to conclude that the permit merely replaced an existing entitlement.

54 However, as the trial Judge pointed out, the Water Act is not a “planning or environment law” within the meaning of s20(3) of the Land andEnvironment Court Act 1979. Therefore, the Court’s jurisdiction to declare permit 2311 invalid depended upon other statutes. Section 253 of the Protection of the Environment Operations Act 1997 provided, inter alia:

253 Restraint of breaches of an Act or statutory rules that harm the environment

Any person may bring proceedings

to restrain a breach

or a

threatened or apprehended breach) of any other Act

if the breach

is causing or is likely to

cause harm to the environment

(2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach).

(emphasis added)

55 The section required a breach or a threatened or apprehended breach of an Act which was causing or likely to cause harm to the environment.

56 The trial judge held that:

likely to cause harm to the environment

likely

57 However, in my opinion, the evidence before the Court did not establish any harm or threatened or apprehended harm to any threatened species population or ecological community. Indeed, the trial judge rejected the contention that there had been a breach of s 118A of the National Parksand Wildlife Act 1974 (“the NP&W Act”). His Honour said:

harm

58 In any event, the validity of the water permit was not an issue which arose in relation to the alleged breach of s 118A of the NP&W Act. The trial judge held that, because the permit 2311 was invalid, “there has been established relevant breaches of the Water Act”. However, if there was a breach of s22BA by the issue of permit 2311, that was a breach by the Ministerial Corporation, which was not a party to the proceedings. I have not identified any relevant breach by the appellants of the Water Act. The appellants could not be held to have breached, for example, s 21B of the Water Act, which provides for the following offence:

“21B

(1) Any person who:

(a) constructs, erects or uses a work to which this Part extends otherwise than pursuant to a right conferred on the person by this Part or Part 10 or by a licence, group licence, irrigation corporation licence, authority or permit.”

59 The Land and Environment Court had no jurisdiction to rule upon the validity of permit 2311 save in relation to the exercise of its jurisdiction under s253 of the Protection of the Environment Operations Act. There is nothing in his Honour’s reasons for judgment which indicates a finding that the appellants breached an Act which breach caused or was likely to cause harm to the environment. In the absence of such a finding, his Honour had no jurisdiction to make an order as to the invalidity of the water permit.

Orders

60 In the circumstances I am of the view that his Honour’s orders should be set aside and in lieu thereof the orders should be:

(1) Declaration that the appellants required development consent for the pump and the pumping of water from Nelsons Creek;

(2) Declaration that the development consent granted on 24 September 1998 did not grant such consent;

(3) Declaration that the development consent granted on 24 September 1998 was not invalidated by reason of failure to consider the pump and the pumping of water from Nelsons Creek.

(4) Order that the matter be remitted back to the trial judge for the hearing of outstanding issues which the parties may wish to pursue.

(5) Order that the costs of the trial be reserved to the trial judge.

**********

CITATION:	Capricornia Prospecting Pty Limited & 2 Ors v Donnelly & Mundine [2002] NSWCA 254
FILE NUMBER(S):	CA 40829/01
HEARING DATE(S):	04/07/02
JUDGMENT DATE:	15 August 2002
PARTIES :	Capricornia Prospecting Pty Limited, Ross Mining NL and Timbarra Gold Mines Pty Ltd (Appellants) Andrew Donnelly (First Respondent) David Mundine (Second Respondent)
JUDGMENT OF:	Handley JA at 1; Stein JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40243/98
LOWER COURT JUDICIAL OFFICER :	Bignold J

COUNSEL:	M G Craig QC/D T Miller (Appellants) In Person (First Respondent) In Person (Second Respondent)
SOLICITORS:	Phillips Fox (Appellants)
CATCHWORDS:	TOWN PLANING - whether consent from Council and permit from Ministerial Corporation both required - whether development consent valid - whether consent dealt with whole of application - whether Council failed to give consideration to material circumstances - WATER PERMIT - whether permit merely replaced an existing entitlement - whether replacement in part sufficient - JURISDICTION - whether Land and Environment Court had jurisdiction to determine validity of permit granted under the Water Act 1912. D
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 4, 92, Water Act 1912, ss 10, 21B, 22BA Water Administration Act 1986, s 12 National Parks and Wildlife Act 1974, s 118A Protection of the Environment Operations Act 1997, s 253 Land and Environment Court Act 1979, s 20(3)
CASES CITED:	Mison v Randwick City Council (1991) 23 NSWLR 734 Thorpes Ltd v Grant Pastoral Co Pty Ltd (1954-55) 92 CLR 317 Butler v Attorney General for the State of Victoria (1961) 106 CLR 268 Rose v Hvric (1963) 108 CLR 353 Commercial Radio Coffs Harbour Limited v Fuller (1986) 161 CLR 47 Australian Gas Light Co v The Valuer General (1940) 40 NSWSR 126 NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509 Hope v The Council of the City of Bathurst (1980) 144 CLR 1 Commissioner of Taxation v Brixius (1987) 16 FCR 359
DECISION:	See paragraph 60.