Donnelly v Capricornia Prospecting Pty Ltd - [2001] NSWLEC 225

Reported Decision: 118 LGERA 147
APPEAL ALLOWED

Land and Environment Court

of New South Wales

CITATION: Donnelly and Anor v Capricornia Prospecting Pty Ltd & Ors. [2001] NSWLEC 225

PARTIES:
APPLICANTS:
Donnelly & Anor.
RESPONDENTS:
Capricornia Prospecting Pty Ltd & Ors.

FILE NUMBER(S): 40243 of 1998

CORAM: Bignold J

KEY ISSUES: Development Consent :- challenge to validity-failure to consider environmental impact-Water Permits-challenge to validity by virtue of statutory embargo on application for the water entitlements.

LEGISLATION CITED: Crown Lands Act 1989
Environmental Planning and Assessment Act 1979, s 77(1) s 90(1), s 91, s 91AB, s 110, s 124
Environmental Planning and Assessment (Savings and Transitional) Regulation 1998
Land and Environment Court Act 1979 s 20(3), s 25B
National Parks and Wildlife Act 1974, s 118A, s 176A
Water Act 1912 s 10, s 11, s 18F, s 18G, s 22BA

CASES CITED: Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446;
Canyonleigh Environment Protection Community Inc v Wingecarribee Shire Council (1997) 95 LGERA 294;
Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 109 LGERA 175;
Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420;
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154;
Mison v Randwick City Council (1991) 23 NSWLR 734

DATES OF HEARING: 08-10/11/00, 19/12/00, 30/01/01, 29/05/01, 15/08/01

DATE OF JUDGMENT:
09/21/2001

LEGAL REPRESENTATIVES:
APPLICANTS:
Mr A Oshlack, Agent
SOLICITORS
N/A
1st - 3rd RESPONDENTS
Mr D Miller, Barrister
FOURTH RESPONDENT
submitting appearance
FIFTH RESPONDENT
submitting appearance
SOLICITORS:
1st - 3rd Respondents
Phillips Fox
4th-5th Respondents
N/A

JUDGMENT:

IN THE LAND AND

Matter No. 40243 of 1998

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 September 2001

ANDREW DONNELLY & DAVID MUNDINE

Applicants

CAPRICORNIA PROSPECTING PTY LTD ACN 008 819 252

First Respondent

ROSS MINING NL ACN 006 654 824

Second Respondent

TIMBARRA GOLD MINES PTY LTD

Third Respondent

TENTERFIELD SHIRE COUNCIL

Fourth Respondent

THE WATER ADMINISTRATION MINISTERIAL CORPORATION

Fifth Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. These are class 4 proceedings in which the Applicants (who are Native Title Claimants to land and waters on Timbarra Plateau representing the Wahlabul/Malerah Bundjalung Aborigines) challenge the validity of (i) a development consent granted by the fourth Respondent on 24 September 1998 to the second Respondent’s development application (DA 98/15) for the installation of works including a pipeline associated with an application for a water licence to pump water from Nelsons Creek; (ii) a permit under the Water Act1912 Div 3A of Pt 2 (the Water Act) granted by the fifth Respondent on 2 December 1998 for the pumping of water from Nelsons Creek for use by the first to third Respondents in their processing of gold at the Timbarra Gold Mine established on Mining Lease 1386; (iii) a licence proposed to be granted by the fifth Respondent under the Water Act, s 10 as notified to the first Respondent on 21 April 1999 for the pumping of water from Nelsons Creek to the site of the Timbarra Gold Mine for use in the processing of gold. At the hearing, the Applicants also challenged the validity of an earlier permit granted under the Water Act on 16 April 1998 for the pumping of water from Nelsons Creek for road construction purposes in connection with the Timbarra Gold Mine.

2. Alternatively and on the basis that the attacks on the legal validity of the aforesaid development consent and first mentioned Water Permit fails, the Applicants allege relevant breaches of the conditions imposed on the grant of that development consent and that Water Permit.

3. Additionally, the Applicants allege a breach of the National Parks and Wildlife Act 1974, s 118A (NP&W Act) by virtue of the impact on threatened frog species, of the activity of pumping water from Nelsons Creek to the Timbarra Gold Mine.

4. In addition to the various declarations claimed, the Applicants claim prohibitory and mandatory injunctive relief against the first to third Respondents in respect of the aforesaid water pump and pipeline.

5. Finally, the Applicants seek an order joining as a further Respondent to the proceedings Delta Gold NL. Joinder was opposed. In my judgment, Delta Gold Ltd, which is a related company to the first the third Respondents (being the overall parent company) is neither a necessary nor proper party to the present proceedings, and the application for joinder is dismissed.

6. The fourth and fifth Respondents have filed submitting appearances (save as to any order for costs). In the result, the first to third Respondents, who have benefited from the development consent and Water Permits, have defended the validity of each of those grants and have opposed all of the relief claimed on the basis that the Applicants have not substantiated any of their claims, or alternatively, on the basis that the Court would on discretionary grounds, withhold the grant of any relief claimed against the first to third Respondents.

7. The hearing of the proceedings was conducted concurrently with class 3 proceedings (No 30236 of 1999) involving a reference to the Court from the Local Land Board, a further reference and from the Minister—both pursuant to the Crown Lands Act 1989—in respect of the first Respondent’s application for the grant of a water licence, in respect of, which application the fifth Respondent had notified the first Respondent on 21 April 1999 of its decision to grant the licence. However, because of the existence of objections to the water licence application, the fifth Respondent, pursuant to the Water Act, s 11(5) had directed the Local Land Board to hold a public inquiry as to the desirability of granting the application.

8. Although that process had commenced, it not been concluded, at the time the references were made to this Court, initially by the Local Land Board, and thereafter for more abundant caution by the Minister, in circumstances discussed in my interlocutory judgment delivered in those proceedings on 27 March 2000 (Corowa and Ors v Ministerial Corporation and Ors (2000) 107 LGERA 404, where I rejected the first Respondent’s challenge that had been made to this Court’s jurisdiction.

9. The parties to the present proceedings, by consent, have tendered in their respective cases all of the evidence that had been adduced in those class 3 proceedings, which were heard immediately prior to the hearing of the present proceedings, although much of that evidence was not strictly relevant to the present proceedings. This is chiefly for the reason that the present proceedings are concerned with past actions (ie the grant of the Water Permits and the grant of the development consent) whereas the class 3 proceedings are concerned with present and future actions (ie the desirability of granting a water licence).

10. However, because the two sets of proceedings were heard concurrently and raised a number of the same or similar or overlapping issues, the evidence was admitted, by consent of all parties.

11. Both proceedings have been re-opened on a number of occasions subsequent to the original hearings most recently, by consent of the parties, on 15 August 2001. All re-openings were instigated by the Applicants, some being opposed by the Respondents and others being consented to by the Respondents. The purpose of all the re-openings was to receive further evidence that had not been available at the earlier hearings.

12. The result of a protracted and comprehensive hearing has been that the Applicants have had every opportunity on the final hearing to raise against the Respondents all of their legal grievances. I should note in passing that soon after the proceedings were commenced, the Applicants had claimed interlocutory relief against the first to third Respondents but that claim was dismissed by Cowdroy J on 15 February 1999 (see (1999) NSWLEC 20).

B. THE JURISDICTIONAL BASES FOR THE APPLICANTS’ SEVERAL CLAIMS

13. There is no doubt that the Applicants’ claims to declaratory and injunctive relief in respect of (i) the development consent; and (ii) the conditions of that development consent are within the Court’s jurisdiction as conferred by the Environmental Planning and Assessment Act 1979 (the EP&A Act), s 122 to 124. (See also the Land and Environment Court Act 1979, s 20(1)(c) (the LEC Act)).

14. However since the Water Act is not a “planning or environment law” within the meaning of the LEC Act, s 20(3), (see Canyonleigh Environment Protection Community Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 323) the justiciability in this Court of the Applicants’ claims in respect of the permits and licence granted or proposed to be granted pursuant to the Water Act depends upon the application of the Protection of the Environment Operations Act 1997, s 253 (PEO Act) which provides as follows:

(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended 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).

(3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings.

(4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed

(5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

15. The Applicants’ claim alleging a breach of the National Parks and Wildlife Act 1974, s118A (NP&W Act) similarly is cognisable pursuant to the PEO Act, s 253 but additionally and more directly is within the Court’s jurisdiction conferred by the NP&W Act s 176A which provides as follows:

(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2) Proceedings under this section may be brought by a person on the person’s own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

16. The Applicants’ claims to relief under the EP&A Act and the Water Act are entirely separate from one another. However, the position is, I apprehend, otherwise in relation to the Applicants’ claim to relief under the NP&W Act because of the express terms of s 118A(3) which provide a number of statutory defences to an offence against the section, including the following:

(3) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence:

……

…….

(b) was essential for the carrying out of:

(i) development in accordance with a development consent within the meaning of the

Environmental Planning and Assessment act 1979, or

(ii)

an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with that Part, or

17. Accordingly, if the Applicants’ claims of invalidity of the development consent and Water Permits are substantiated, it would appear that the statutory defence provided by s 118A(3)(b) would simply not be available on the basis that the references therein to (i) “development consent within the meaning of the EP&A Act” and (ii) “approval of an activity within the meaning of Part 5 of that Act” are properly to be regarded as references to a valid development consent and approval under Part 5, respectively.

18. Conversely, if the Applicants’ claims to invalidity of development consent and Water Permits wholly fail, it would appear that the statutory defence provided by s118A(3)(b) is available to the first to third Respondents, in which event, a “breach of this Act” would not be established for the purposes of s 176A of the NP&W Act.

19. So analysed, I would understand the Applicants’ claims to relief under the NP&W Act to be dependent upon their firstly substantiating their claims that the development consent and Water Permits are invalid.

20. Of course, the Applicants’ alternative claims alleging breaches of the conditions of the development consent and of the later of the two Water Permits do not depend upon the Applicants establishing invalidity of the development consent and Water Permit—to the contrary they are predicated upon the failure of the Applicants to establish the alleged invalidity of the development consent and Water Permit.

21. Accordingly, I propose to consider separately each of the Applicants’ several claims by considering in the following order the following questions—
(i.) whether the development consent is valid;
(ii.) whether the Water Permits are valid;
(iii.) whether the proposed grant of the water licence is valid;
(iv.) whether there has been a breach of conditions of the development consent;
(v.) whether there has been a breach of the conditions of the Water Permit; and
(vi.) whether there has been a breach of s 118A of the NP&W Act.
C. IS THE DEVELOPMENT CONSENT VALID?

22. Development consent was granted by the fourth Respondent on 24 September 1998 to the second Respondent’s development application No 98/15 which had been made on 2 June 1998.

23. It is common ground, by virtue of the fact that the development application was made on 2 June 1998, that the determination of that application was required to be undertaken in accordance with the “unamended” content of the EP&A Act within the meaning of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998: vide cl 11. Unless otherwise stipulated, all references hereinafter made to the EP&A Act are intended as references to that Act as in force immediately prior to the commencement on 1 July 1998 of Act No 152 of 1997.

24. The Notice of Determination of that development application issued pursuant to s 92 of the EP&A Act granted the development consent subject to conditions which were stipulated as follows:
1. The development being carried out in accordance with the application received by Council except where amended by the conditions of the consent. The development consent does not include consent for the pump or the extraction of water from Nelsons Creek.
2. Any clearing of native vegetation is not to occur prior to the issuing of an approval from the Department of Land and Water Conservation for the extraction of water from Nelsons Creek.

Advising:

Approval may be required under the Native Vegetation Conservation Act 1997 for the clearing of native vegetation.

3. Prior to the commencement of works details are to be provided on the storage and/or disposal of vegetation cleared as a result of the development. Details are to be provided to the satisfaction of the Department of Land and Water Conservation, Council’s Director of Engineering Services and the Rural Services Fire Control Officer.
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:

1. measures to ensure that the water pipeline does not form a major continuous barrier to small ground fauna,
2. pre-clearing surveys to be undertaken prior to development of the access route,
3. on the basis of results of pre-clearing and pre-development surveys, development of an appropriate monitoring programme for the pump site, and
4. a rehabilitation program for those areas disturbed by the development to be implemented on decommissioning of the pump.
5. Any structure on the pump site and the pipeline are to be removed at the completion of mining operations. The areas cleared to accommodate the pump site and the access road are to be rehabilitated.
6. Prior to any disturbance of the site an assessment of the Aboriginal heritage values is to be submitted to the National Parks and Wildlife Service and Council. The assessment is to be prepared in consultation with the Aboriginal community and is to include identification of Aboriginal heritage values of the area, the impacts of the development on those values and measures to mitigate those impacts.
7. Prior to commencement of works an erosion and sedimentation control plan is to be prepared for the development to the satisfaction of the Environment Protection Authority and the Department of Land and Water Conservation.
8. Details are to be provided on the measures to be used to detect any leakages in the pipeline. The measures are to ensure that leakages are detected and attended to promptly.

Advising:

The pump should have a pressure drop cut off device installed in case of pipe breakages.

9. Prior to the commencement of work a location plan for the access road and pump site are to be submitted to Council. The determination of the location of the access road and pump site is to include:
(a) the road and pump site is to be located at least 40 metres from the southern bank of Nelsons Creek,
(b) the alignment of the road is to avoid the removal of any old growth or large trees and to avoid immature trees as much as possible;
(c) the pump site is to be above the 100 year ARI flood level, and
(d) consideration of the outcomes of the pre-clearing flora and fauna surveys as well as the Aboriginal archaeological assessment.

Advising:

A 3A permit pursuant to the provisions of the Rivers and Foreshores Improvement Act 1948 may be required for the installation of the pump and associated infrastructure at the pump site.

10. (a) Prior to installation of the pipeline:

(i) the location of the pipeline within the road reserve is to be confirmed and approved by Council

(ii) a Program Schedule for the pipeline installation is to be provided to Council.

(b) During installation of the pipeline roadside drains are to be kept clear and surplus material removed or spread.

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.
12. Bushfire protection for the development is to be in accordance with the Bushfire Management Plan for the Timbarra Gold Mine Project. The pump is to be centrally located within the vehicle parking/turning area. The fire fuel load at the site is to be monitored during the period of operations.

13. The intersection of the access road with Timbarra Road is to be constructed to allow the flow of water along or away from the table drain.

23. The reasons for imposing each of the foregoing conditions were stipulated in the Notice as follows:
1. To confirm the application to which this consent applies.
2. To avoid the unnecessary clearing of native vegetation if approval is not granted for the pump and water extraction from Nelsons Creek.
3. To ensure that cleared vegetation is disposed of appropriately.
4. To minimise the effect of the development on threatened species.
5. To protect native flora and fauna.
6. To protect Aboriginal heritage values and to comply with the National Parks and Wildlife Act 1974.
7. To minimise soil erosion.
8. To minimise soil erosion.
9. to ensure that the location of the road does not adversely affect the water quality of Nelsons Creek and threatened species and archaeological sites or materials which may be present.
10. To notify Council as the relevant road authority.
11. To prevent contamination of Nelsons Creek.
12. To reduce the risk of bushfire.
13. To provide adequate road drainage.

26. The development application to which the development consent was granted comprised the following documents:

(i.) The prescribed application form which described the proposed development as follows:

work

(ii.) letter from Russell Hetherington, agent for the first to third Respondents (enclosing the application form) which included the following statements:

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);

(iii.) Statement of Environmental Effects

which included the following statement:

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

(iv.) a Statement of Environmental Effects and a Review of Environmental Factors

prepared in respect of the upgrade of Timbarra Road giving access to the Timbarra Gold Mine; (these documents had supported a separate development application in respect of which the fourth Respondent had granted development consent);

(v.) Review of Environmental Factors

prepared by Water Studies Pty Ltd in support of a contemporaneous application made by the first Respondent for a water licence pursuant to s 10 of the Water Act which Review included an Assessment Report prepared by Greenloaning Biostudies Pty Ltd entitled:

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

and

The Greenloaning Assessment also included the following conclusions in 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 flor and fauna species and enable a clearer determination of the appropriate safeguards/mitigation measures required to protect these species.

27. The Applicants’ legal attack upon the validity of the development consent is founded upon the following grounds:

(i.) the development application was not supported by a Species Impact Statement (SIS) as required by the EP&A Act, s 77 (3) (d1) ;

(ii.) the development application was not made with the “owner’s consent” as required by the EP&A Act, s 77(1)(b);

(iii.) the determination by the fourth Respondent granting the development consent was manifestly unreasonable in terms of the consideration that was required by the EP&A Act, s 90(1)(a), (b), (c3), and (n); and

(iv.) the development consent was granted in breach of cl 9(3) of the Tenterfield Local Environmental Plan 1996 (the LEP) which provides as follows:

Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development unless the Council is of the opinion that the carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out.

28. It is convenient to consider concurrently grounds (i) and (iii) of the Applicants’ legal attack on the validity of the development consent. The focus and thrust of the Applicants’ claims in this respect, concern the impact on threatened frog species and their habitat in Nelsons Creek of the carrying out of the proposed development, and upon the allied claims that the fourth Respondent, in granting development consent failed to properly and adequately consider this impact (either by not requiring the development application to be supported by an SIS or by failing to consider the relevant impact on the threatened species of frogs in terms of the EP&A Act, s 90(1)(b) and (c3).

D. INVALIDITY BASED UPON GROUNDS (i) AND (iii)—IMPACT OF PROPOSED DEVELOPMENT ON THREATENED SPECIES

29. Although the evidence reveals a continuing dispute between the frog experts called by each party (Dr Tyler and Dr Mahony) there is in fact a more fundamental issue to be considered than their opposing opinions on the identity of a possible threatened frog species and the impact on that and other known threatened species, of pumping water from Nelsons Creek. This is the submission ultimately advanced by the first to third Respondents that the question of the impact on the relevant frog species of pumping water from Nelsons Creek was not a relevant consideration in the determination of the development application. The first to third Respondents submitted that that question was peculiarly (and solely) relevant to the water licence proceedings. To quote from his written submissions, Counsel for the first to third Respondents submitted:

Tenterfield Council did not give consent to pump water from the creek. It had no statutory power to do so. It gave consent to construct the pipeline connecting to the pump and associated infrastructure. Nothing has been demonstrated to arise from

those

activities that gives rise to any real apprehension of impact on threatened species.

30. In considering the Applicants’ legal attack upon the validity of the development consent, it must be appreciated that the relevant evidence (save for that given by the frog experts) is documentary evidence concerning the grant of the development consent. That evidence includes the whole of the fourth Respondent’s file dealing with the second Respondent’s development application which had been produced to the Court pursuant to subpoena, and which was tendered as an exhibit in the Applicants’ case.

31. The documentary evidence clearly establishes that the fourth Respondent did not consider the impact upon the threatened frogs species of the pumping of water from Nelsons Creek. Moreover, the evidence entirely substantiates the submission advanced by the first to third Respondents that the Council “did not give consent to pump water from the creek”. This is made particularly clear from the express terms of the Condition 1 of the development consent which states:

The development being carried out in accordance with the application received by Council except where amended by the conditions of the consent.

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

32. However, although it is clear that the fourth Respondent did not give development consent to pump water from Nelsons Creek, is the allied submission advanced by the first to third Respondents (namely that the Council “had no statutory power to do so”) also substantiated and if it is, does this mean that the fourth Respondent properly fulfilled its duty in terms of s 90 (1)(b) and (c3) of the EP&A Act in determining the development application?

33. The first to third Respondents’ submission that the fourth Respondent had no statutory power to grant development consent to pump water from Nelsons Creek was not elaborated upon in argument. Assuming that it is a correct submission of law (and it will later become necessary to adjudicate upon it) two questions immediately arise—
(i.) How did the development application made for the entire water work (ie pump and pipeline infrastructure, and the pumping of water from Nelsons Creek to the Timbarra Gold Mine site) produce a development consent limited to the infrastructure and expressly excluding the pump and water extraction? and
(ii.) In granting the development consent limited to the infrastructure, was the fourth Respondent thereby legitimately relieved of its duty to consider the environmental impact of the pumping of water from Nelsons Creek to the Timbarra gold Mine?

34. According to the documentary evidence concerning the content of the second Respondent’s development application and supporting materials, it is clear that the development for which development consent was sought by the second Respondent was the whole of the works, including the pumping of water from Nelsons Creek to the Timbarra Gold Mine site situate some 2 km distant from the Creek.

35. In its public notification of receipt of the development application inviting written submissions or objections (it is to be noted that the proposed development was declared by cl 19 of the LEP to be “advertised development” within the meaning of the EP&A Act) the fourth Respondent described the application as—

an application from Ross Mining NL, for the use of land for the purposes of a surface water pipeline at lot 37 DP 751528 Parish Maclean, Timbarra and Timbarra Road, Timbarra.

36. In its notification dated 13 July 1998 to relevant public authorities (the Environment Protection Authority, Department of Land and Water Resources and the National Parks and Wildlife Service) the Council had advised as follows:

The above application has been received from Ross Mining NL for consent to install a pump on Nelsons Creek at Timbarra and to lay a water delivery pipeline across private property (Lot 37) and along Timbarra Road to the mine site.

Consideration by Council under the Environmental Planning and Assessment Act will be restricted to the laying of the water pipeline on the surface of Lot 37 and Timbarra Road. Consideration of the environmental affects of drawing water from Nelsons Creek is more properly the province of the Department of Land and Water Resources.

37. The fourth Respondent retained a planning consultant, Ms Kathy Martin, to appraise the development application. In her file notes and correspondence with Mr Hetherington (the second Respondent’s agent) Ms Martin makes a number of references to the fact that the Department of Land and Water Resources is “the determining authority under Pt 5 of the EP&A Act for the application for water licence”. For example, in her file note dated 27 August 1998, Ms Kathy Martin notes her conversation with an officer of Department of Land and Water Conservation to the following effect:

Rang Jim Morison, DLWC Grafton – away. Spoke to Laurie Moore.

DLWC is determining authority under Part V EPA Act 1979 for application for a water licence. TSC sent copy of letter to DLWC – original written to EPA – that proposal be considered in 2 separate parts – DLWC deals with water licence (water extraction and pump) and TSC with pipeline & access road. LM: standard procedure to separate approvals.

38. In her letter dated 2 September 1998 to Mr Hetherington Ms Kathy Martin stated:

I understand that the Department of Land and Water Conservation will be assessing the environmental impacts of the pump and water extraction from Nelsons Creek under Part V of the EPA Act 1979. However, the impacts of the facilities associated with the pump will also need to be assessed by Council, for example possible bushfire protection measures and the impact of clearing required to accommodate fuel storage and vehicle parking/turning areas.

39. In the report of the fourth Respondent’s Director Environmental Services (presumably prepared by Ms Kathy Martin or with her input) submitted to the meeting of the fourth Respondent on 24 September 1998, the following statement is made in relation to the proposed development:

The proposal is part of the Timbarra Gold Mine Project and comprises:

(i) installation of the pump and extraction of water from Nelsons Creek. This part of the proposal is subject to an application for a water licence under the Water Act 1912 to be determined by the Department of Land and Water Conservation (DLWC); and
(ii) This part of the proposal constitutes development application DA98/15, and comprises

- establishment of the site for the pump and associated facilities

- upgrading of the existing track from the pump site to Timbarra Road, and

- the placement of a pipeline from the pump site to mining lease (ML) 1386 running adjacent to the upgraded track and Timbarra Road.

40. The consideration, as expressed in the Report, given to the impact of the development on the environment (s 90(1)(b)) and the effect on threatened species, populations or ecological communities or their habitats (s 90(1)(c3)) is clearly confined to such impact and effects of the establishment of the pump station and the establishment of the access road and the laying of the pipeline on the surface of Portion 37 and Timbarra Road. The relevant consideration clearly excluded impacts or effects of the pumping of water from Nelsons Creek on threatened species of frogs in Nelsons Creek. This is clearly shown from the following extract where the Report is dealing with “public interest” in terms of the EP&A Act, s 90(1)(r):

(r) the public interest; and

The development application was placed on public exhibition and submissions invited from 30 June 1998 to 17 July 1998. Notice of the exhibition period was given in the Tenterfield Star newspaper on 30 June 1998.

Nine (9) submissions were received which included one individual and one organisation each making two submissions (refer to Appendix B). All of the submissions objected to the proposal. The following lists those matters raised in the submissions and comments are provided on each matter:

· all of the submissions expressed concern at the effects of extracting water from Nelsons Creek.

: This matter is being considered separately by the Department of Land and Water Conservation as part of the water licence application.

41. The foregoing analysis of the documentary evidence clearly establishes two facts—firstly, the second Respondent’s development application sought development consent for the carrying out of the development comprising the establishment of the required infrastructure for pumping water from Nelsons Creek to the Timbarra Gold Mine site on Mining Lease 1386 and the use of that water so pumped, for the purposes of the Gold Mine and secondly, the development consent granted by the fourth Respondent expressly excluded from its scope and ambit the installation of the pump and the extraction of water from Nelsons Creek as expressed in Condition 1.

42. The documentary evidence indicates that the reason for granting the limited development consent was the fourth Respondent’s understanding (no doubt held honestly and bona fide) that environmental assessment of the impact of the proposed pumping of water from Nelsons Creek was the separate responsibility of the Department of Land and Water Conservation in terms of its determination of the contemporaneous application made by the first Respondent for the issue of a water licence pursuant to the Water Act, s 10, and that accordingly, it was no part of the fourth Respondent’s duty or responsibility to make that particular environmental assessment.

43. 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.

44. Finally, there is no suggestion in the documentary evidence that the second Respondent had sought to vary or amend its development application pursuant to cl 44 of the Regulation made under the EP&A Act so as to limit the proposed development by excluding therefrom the installation of the water pump and the extraction of water from Nelsons Creek. Rather, the limited development consent was entirely the result of the initiative and responsibility of the fourth Respondent.

45. In the light of these findings the vital question that arises is whether the development consent is valid or invalid.

46. I commence my consideration of this question by considering the first to third Respondents’ submission that the fourth Respondent did not have the power to grant development consent to the pumping of water from Nelsons Creek for use at the Timbarra Gold Mine. If this submission is sound, it is apt to have a profound influence on the question of the validity or invalidity of the development consent.

47. As I have earlier stated, the submission was not elaborated upon in the argument, but in my opinion, the submission upon consideration, is not sound. 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”).

48. In the Report on the development application submitted to the fourth Respondent, the purpose of the proposed development was stated to be “to provide water for operation of Timbarra Gold Mine” and the Report accordingly examined the question whether the proposed development was relevantly “designated development” within the meaning of Part 2 Schedule 3 to the Regulation under the EP&A Act being “alterations or additions” to “designated development” (the Gold Mine itself being such “designated development”).

49. 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 s 4(1):

development in relation to land means:

......

(ii) the use of that land

.........

land includes:

.....

......

(c) a river, stream or watercourse, whether tidal or non-tidal.

50. 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.

51. This conclusion demonstrates that the submission advanced on behalf of the first to third Respondent to the effect that the fourth Respondent had “no statutory power to grant consent to pump water from Nelsons Creek” has overlooked the fact, often encountered in the administration of planning laws, that a single development or activity (here the pumping of water from Nelsons Creek and the use of that water at the Gold Mine) may require more than one statutory approval or consent.

52. To the extent that the first to third Respondents’ submission emphasises the need for approval to be granted under the Water Act for water to be extracted from Nelsons Creek, the submission is obviously correct. However, to the extent that the submission suggests that that fact, ipso facto, excludes the operation of the EP&A Act and the LEP to require the grant of development consent for that same activity (ie the pumping of water from Nelsons Creek for use at the Gold Mine site), the submission is plainly incorrect.

53. That a particular development may require more than one statutory approval is trite as revealed in the case law, but is also now expressly acknowledged by the EP&A Act (as in force after the commencement of Act No 152 of 1997) by virtue of the provisions contained in Div 5 of Pt 4 relating to “integrated development”. In particular by virtue of s 91(1) integrated development is “development that in order to be carried out requires development consent and one or more of the following approvals—

Water Act 1912 s 10 Licence to construct and use a work, and to take and use water, if any, conserved or obtained by the work, and to dispose of the water for the use of occupiers of land

s 18F
permit to construct and use a work, and to take and use water, if any, conserved or obtained by the work, and to dispose of the water for the use of occupiers of land for any purpose other than irrigation
.

54. The EP&A Act, s 120A(1) is another express recognition that a development, the subject of a development application, “may involve a work that may require a water licence”

55. My conclusion that the installation of the pump and the extraction of water from Nelsons Creek for pumping to the Timbarra Gold Mine site for use by the Gold Mine requires development consent under the EP&A Act (in conjunction with the express terms of the LEP) carries the important consequence that that development did not constitute an “activity” for the purposes of EP&A Act, Part 5 because of the exclusionary words of the definition of “activity” contained in s 110(1)—

means:

(a) the erection of a building,
(b) the carrying out of a work in, on, over or under land,
(c) the use of land or of a building or work, and
(d) the subdivision of land,

and includes any act, matter or thing for which provision may be made under section 26 and which is prescribed for the purposes of this definition,

but does not include

(e) any act, matter or thing for which development consent under Part 4 is required or has been obtained, or
(f) any act, matter or thing which is prohibited under an environmental planning instrument.

(my emphasis)

56. Accordingly, contrary to the understanding of both the fourth Respondent and the fifth Respondent, the first Respondent’s application for a water licence under the Water Act, s 10 was not an application in respect of an “activity” that required environmental assessment in terms of the EP&A Act, Part 5, because it was expressly excluded from the statutory definition of “activity” by virtue of the terms of par (e) which clearly applied to the development proposed in the second Respondent’s development application.

57. Thus, assuming for the moment that the fourth Respondent had the power to exclude from its consideration and determination of the second Respondent’s development application, the installation of the water pump and the extraction of waters from Nelsons Creek the rationale and basis (both legal and factual) for its decision to so proceed in its determination of the development application, was wholly lacking or was frustrated, because contrary to the mutual misunderstanding of both the fourth and fifth Respondents, environmental assessment of the first Respondent’s water licence application in terms of the EP&A Act, Part 5 was not required in fact or in law.

58. This brings me finally to the question whether the fourth Respondent’s decision to so limit the scope of the approved development was a valid exercise or discharge of its duty under the EP&A Act, s 90 and 91 to determine the second Respondent’s development application.

59. The obvious disparity between the development for which development consent was sought in the second Respondent’s development application and the development for which development consent was granted does not require much elaboration. The difference is profound and significant since the development for which consent was sought involved the pumping of water from Nelsons Creek to the Timbarra Gold Mine site for use by the Gold Mine whereas the development consent granted expressly excluded from its scope the installation of the water pump and the extraction of the water from Nelsons Creek.

60. The development consent granted by the fourth Respondent clearly offended the following principle that was enunciated by Priestley JA in Mison v Randwick City Council (1991) 23 NSWLR 734 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

61. This principle was recently applied by the Chief Judge in Carr v Minister for Land and Water Conservation [2000] NSWLEC 89, 109 LGERA 175.

62. Although the facts of the present case are quite different from the facts in the two cases cited, the principle enunciated and applied in these cases is readily applicable to the present case where the alteration or difference between the approved development and the development for which consent was sought is in truth more radical and significant, than in either of those cases.

63. Here, the approved development is the laying of a pipeline some 2 km in length, initially on the surface of Portion 37 for a length of some 450 m and thereafter on the surface of Timbarra Road until it reaches Mining lease 1386, whereas the development for which development consent was sought was for that infrastructure together with the water pump and the extraction of water from Nelsons Creek for transmission to the Timbarra Gold Mine site for use in the process of producing gold.

64. Accordingly, the application of the “Mison” principle to the facts of the present case results in the inevitable conclusion that development consent has not been granted to the second Respondent’s development application.

65. However, there remains the possibility that s 91AB may operate to save the development consent from invalidity by virtue of the application of the “Mison” principle. It is in the following terms:

91AB Staged development

(1) A development consent may be granted:
(a) for the development for which the consent is sought, or
(b) for that development, except for a specified part or aspect oft hat development, or
(c) for a specified part or aspect of that development.
(1) Such a development consent may be granted subject to a condition that the development or the specified part or aspect of the development, or any thing associated with the development or the carrying out of the development, must be the subject of another development consent.

66. Section 91(3)(h) provides that “a condition may be imposed for the purposes of subsection (1)” (which authorises the grant of consent to an application either unconditionally or subject to conditions) if it:
(g) is authorised to be imposed under section 91AA, 91AB or 94

67. Section 91AB has been the subject of very little judicial consideration. It was applied by the Chief Judge in Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420 in a case of a development application seeking consent to the creation of a number of discrete subdivided residential precincts. The Chief Judge at 436 considered the meaning of the section to be “plain and unambiguous”.

68. In the present case, there is not the slightest suggestion in the documentary evidence that the fourth Respondent, in granting the development consent was intending to exercise the statutory power conferred by the EP&A Act, s 91AB. This, of course, is not conclusive and it may be accepted that if the power is available, it may be invoked to avoid invalidity of the development consent: cf Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. On the face of it (especially Condition 1), the development consent was granted for the development for which the consent was sought “except for a specified part or aspect of that development” within the meaning of s 91AB(1((b). Accordingly, prima facie, the development consent may be saved by the operation of s 91AB even though it is apparent that the fourth Respondent was not consciously exercising that power when it granted the development consent.

69. However, s 91AB does not operate in vacuo. Rather, it is an aspect (manifested in the result of the process of determination) of the duty of a consent authority to determine a development application. The duty imposed upon the fourth Respondent by s 90(1) “in determining” the second Respondent’s development application was to “take into consideration” such of the matters enumerated in the subsection “as are of relevance to the development the subject of that development application” (my emphasis). It follows from my earlier findings that the fourth Respondent deliberately did not consider the relevant environmental impact of the pumping of waters from Nelsons Creek on the threatened frogs species,. that there has been established a breach of the relevant duty imposed upon the fourth Respondent by the EP&A Act, s 90(1)(b) and 90(1)(c3) in its consideration “of the development, the subject of the development application”.

70. In my judgment, this established breach of duty is not saved by the fortuitous or adventitious operation of s 91AB because although it prima facie authorises the result of development consent being granted to “the development for which consent is sought except for a specified part or aspect of that development” (s 91AB(1)(b)), that result does not diminish or curtail the duty imposed upon a consent authority by s 90(1) to consider matters “of relevance to the development the subject of the development application”. The saving effect of s 91AB is achieved via the imposition of conditions on the grant of development consent (see s 91(3)(h)) but that result does not short circuit or curtail the duty imposed by s 90 and s 91 to determine the development application for which development consent is sought.

71. Accordingly, I would hold that there has been a relevant breach of the duty imposed by the EP&A Act, s 90(1)(b) and (c3) which breach is not in the result, cured or saved by the EP&A Act, s 91AB.

72. Moreover, the breach of duty imposed by s 90(1) in the present case is a most material breach, since the Greenloaning Assessment of potential impacts on threatened species, specifically identified two threatened frog species as being the threatened species most at risk of significant impact from the proposal to pump waters from Nelsons Creek to the Timbarra Gold Mine site.

73. It follows from the foregoing that the development consent is invalid on account of the fourth Respondent’s breach of duty imposed by the EP&A Act, s 90(1)(b) and (c3).

74. My conclusion that the development is invalid for breach of the EP&A Act, s 90(1)(b) and (c3) by virtue of the failure by the fourth Respondent to consider the impact on the threatened frog species of the pumping of water from Nelsons Creek to the Timbarra Gold Mine site has not been based upon a conclusion that a SIS was required to accompany the second Respondent’s development application. Nor does my conclusion depend upon any finding based upon the Applicants’ claims that the fourth Respondent, in granting the development consent unreasonably failed to properly consider (i) the submissions made by public authorities (and notably the National Parks and Wildlife Service) in response to the notice given to them of the existence of the second Respondent’s development application; and (ii) matters of Aboriginal archaeology or anthropology. I do not suggest that these matters may not be important considerations. Rather, findings upon them would not add anything to my finding that the fourth Respondent breached its relevant duty in terms of s 90(1)(b) and (c3) in deliberately excluding consideration of environmental impacts on the threatened frog species, of pumping water from Nelsons Creek.

75. I should note in passing, but for completeness, that if contrary to my conclusion I had held that s 91AB had saved the development consent from the invalidity that I have held to infect the development consent, the evidence would clearly indicate that there has been no further development consent granted (as would be required by the EP&A Act and the LEP) for the installation of the water pump and the extraction of water from Nelsons Creek for transmission to the Timbarra Gold Mine site. That is to say, had the development consent survived the attack upon its validity by virtue of the adventitious operation of s 91AB, the clear result would have been that there had been no grant of the requisite consent under the EP&A Act (and the LEP) for the installation of the water pump and for the extraction of water from Nelsons Creek for transmission to the Timbarra Gold Mine site. This lack of requisite development consent under the EP&A Act would not have been avoided or overcome by the grant of any permit or licence under the Water Act. The result would have been that the pumping of water from Nelson Creek would have involved a breach of the EP&A Act, in that development had been carried out without the requisite consent.

76. It remains for me to consider whether instead of making a declaration that the development consent is invalid, I should make an order pursuant to the provisions of the LEC Act, Div 3 of Pt 3.

77. Section 25B empowers the Court as the alternative to declaring a development consent to be invalid, to make an order “suspending the operation of the consent” and “specifying terms in compliance with which will validate the consent”.

78. In my judgment, recourse to the power conferred by the LEC Act, s 25B is not appropriate in the circumstances of this case.

79. Having regard to the basis upon which I have held the development consent to be invalid, it is difficult to conceive or formulate terms, compliance with which would validate the consent.

80. Apart from these daunting conceptual difficulties, there is the practical consideration that there has been no pumping of water from Nelsons Creek to Timbarra Gold Mine since June 2000 when gold production ceased at the Mine and that the first to third Respondents have recently publicly announced their intention to close the Gold Mine and to rehabilitate the site.

81. These practical considerations strongly suggest that there is no present utility in resorting to the LEC Act, s 25B in order to leave open the possibility of some ultimate validity of the development consent being attained.

82. For the foregoing reasons, I consider it more appropriate to make a declaration of invalidity of the development consent than to make an order pursuant to the LEC Act, s 25B.

83. In view of my conclusion that the development consent is invalid, I shall deal but briefly with the other grounds of alleged invalidity.

E. INVALIDITY BASED UPON GROUND (ii)—ABSENCE OF OWNER’S CONSENT TO DEVELOPMENT APPLICATION

84. In my opinion, this ground of invalidity has not been substantiated.

85. The EP&A Act, s 77(1) and (2) provide as follows:

77 Making of development applications

(a) A development application may be made only by:
(a) the owner of the land to which that development application relates, or
(b) any person, with the consent in writing of the owner of the land to which that development application relates.
(b) Notwithstanding subsection (1) (b), a development application may be made by a lawful occupier of Crown lands within the meaning of the

Crown Lands Consolidation Act 1913 with respect to the whole or any part of any such land lawfully contracted to be sold to the occupier without the consent in writing or otherwise of:

(a) where the lands are not within an irrigation area within the meaning of that Act—the Minister for Lands, or
(b) where the lands are within such an irrigation area—the Minister for the time being administering the

Irrigation Act 1912.

86. The EP&A Act, s 4(1) defines “owner” as having “the same meaning as it has in the Local Government Act 1993”.

87. The Dictionary to the Local Government Act 1993 defines “owner” as follows:
(c) in relation to Crown land, means the Crown and includes:
(i) a lessee of land from the Crown; and
(ii) a person to whom the Crown has lawfully contracted to sell the land but in respect of which the purchase price or other consideration for the sale has not been received by the Crown; and

88. The same Act defines “Crown land” as having “the same meaning as in the Crown Lands Act 1989”.

89. The second Respondent’s development application was accompanied by a written endorsement, signed by the endorser, in the following terms:

Pursuant to Section 77(1)(b) of the Environmental Planning and Assessment act 1979, I, William Edwin Petrie, consent to Ross Mining NL lodging a development application in respect to Lot 37 in Deposited Plan No 751528 for the purposes of a Water Licence and laying a temporary pipeline as a conduit for water from Nelson Creek to Mining Lease No 1386.

90. Additionally, the development application furnished a copy of a Computer Folio Certificate to the effect that William Edwin Petrie held an estate in perpetual leasehold subject to the provisions of the Crown Lands Consolidation Act 1913 in respect of land formerly known as Portion 37, Parish of Maclean, County of Clive, now being lot 37 in Deposited Plan 751528.

91. In response to the fourth Respondent’s notification to various public authorities of the second Respondent’s development application, the Department of Land and Water Conservation wrote to the fourth Respondent on 31 July 1998 advising inter alia as follows:

2. Consent of Owner to Consent

It is noted that the subject land being Lot 37, DP 751528, Parish Maclean, County of Clive, is a Crown Lease held by Mr W.E. Petrie under the provisions of the Crown Lands (Continued Tenures) Act. This being the case, the owner by definition, is the Minister for Land and Water Conservation and the development application signed by Mr Petrie may not be valid.

The normal practice in such cases affecting Crown Land is that the applicant consult the Department of Land and Water Conservation in the first instance to confirm whether there are any legal impediments to the lodgement of the application. These matters are handled by the Armidale office of the Department of Land and Water Conservation (formerly Lands Office). It is recommended that the Development Application be forwarded to the District Manager PO Box 199A Armidale NSW 2350 so that any issues relating to the Crown’s interest are properly considered.

92. In a later letter dated 12 August 1998, the Department of Land and Water Conservation advised the fourth Respondent as follows:

I refer to our recent phone discussions about definition of owner and the giving of consent to lodgement of the above development application, and comments contained in a letter from the Catchment Manager, Glen Innes concerning same.

The Local Government Act defines that owner in relation to Crown land, means the Crown. However it also includes a lessee of land from the Crown (refer attached).

Further, Councils development application provides notes which clearly provide that where the subject and (sic) is Crown land that there is a need to obtain the relevant signature on behalf of the department.

In this case, I have referred the matter and recommended that the Ministers delegate sign the application giving consent as owner to lodgement.

The signed (copy of) application is provided herewith.

93. The letter enclosed a copy of the application form forming part of the second Respondent’s development application, bearing the signatures of Mr Petrie and of the Minister’s Delegate as consenting to the development application.

94. The Applicants submit that the development application was invalid because (i) when it was submitted to the fourth Respondent, it bore the consent of Mr Petrie, who was a lessee of the land and not the owner thereof; and (ii) the conditions of the Crown lease did not permit the lessee to deal with the land in any way without the consent of the Minister.

95. In my judgment, neither of the Applicants’ submissions should be accepted because as undisputed factual findings, at the time that the second Respondent’s development application was determined by the fourth Respondent, there had been notified to the fourth Respondent the consent to the making of the development application by both Mr Petrie, the lessee, and by the Minister, as owner, respectively of Portion 37.

96. Whether or not the consent by Mr Petrie alone (which was notified to the fourth Respondent when the development application was lodged with the fourth Respondent on 2 June 1998) satisfied the requirements of the EP&A Act, s 77(1)(b) (and I am inclined to think that it did) by the time the fourth Respondent determined the development application on 24 September 1998, it had been notified additionally of the Minister’s consent in terms of s 77(1)(b).

97. This meant that at the time the fourth Respondent granted the development consent, there existed the fact of the owner’s consent (whether the owner be relevantly regarded as (i) Mr Petrie, as lessee, in terms of the definition of “owner” contained in the Local Government Act adopted for the purposes of the EP&A Act or (ii) the Minister by virtue of Portion 37 being Crown Land).

98. Accordingly, the requirements of the EP&A Act, s 77(1) had been satisfied by the time the fourth Respondent granted the development consent. In this respect, I respectively adopt the following passage from the judgment of Stein JA in Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446 at pp 449/450:

A number of observations may be made about s 77(1) and (3). First, the issue of the ownership of the land to which the development application relates is dealt with in s 77(1) separately from the requirements which relate to the making of the development application in subs (3).

During the 1980s and early 1990s there were a number of decisions in the Land and Environment Court which considered the requirement for an owners’ consent under s 77(1) including the time at which the consent of the owner must be forthcoming. These include:

Harry’s Real Estate Agency Pty Ltd v Canterbury Municipal Council (unreported, Land and Environment Court, NSW, Perrignon J, 8 July 1981)

Crowley v Hastings Municipal Council (1982) 4 APA 115
King v Great Lakes Shire Council (1986) 58 LGRA 366
Royal Motor Yacht Club v Sutherland Shire Council (unreported, Land and Environment Court, NSW, Bignold J, 26 June 1987)
Woolworths Ltd v Bathurst City Council (1987) 63 LGRA 55
Amacon Pty Ltd v Concord Municipal Council (unreported, Land and Environment Court, NSW, Hemmings J, Nos 10541 and 20532 of 1987, 2 December 1987
Reeson v Warringah Shire Council (unreported, Land and Environment Court, NSW, Cripps J, No 10160 of 1990, 16 October 1990)
Wharf 11 Pty Ltd v Sydney City Council (unreported, Land and Environment Court, NSW Cripps J, No 10569 of 1990, 15 February 1991)
Stafford Quarries Pty Ltd v Kempsey Shire Council (1992) 76 LGRA 52.

As to the latter aspect, the most direct authority is Amacon Pty Ltd v Concord Municipal Council wherein Hemmings J said at p 11:

Woolworths Ltd v Bathurst City Council, Crowley v Hastings Municipal Council

It has not been suggested that the cases in the Land and Environment Court relating to the timing of the provision of an owner’s consent to a development application have been incorrectly decided.

99. For all the foregoing reasons, I hold that this ground of alleged invalidity of the development consent has not been established.

F. INVALIDITY BASED UPON GROUND (iv)—DEVELOPMENT CONSENT GRANTED CONTRARY TO cl 9(3) OF THE LEP

100. Clause 9(3) of the LEP provides as follows:

(3) Except as otherwise provided by this plan, the council must not grant consent to the carrying out of development unless the Council is of the opinion that the carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out.

101. The relevant objectives of Zone No 1(a) (being the zoning of Portion 37) are stated in the Table to cl 9(1) of the LEP as follows:

The objectives are as follows:

(d) to promote efficient sustainable agricultural utilisation of agricultural land, particularly prime crop or pasture land;
(e) to protect or conserve:
(i) soil stability by controlling development in accordance with soil capability;
(ii) forests of commercial value for timber production;
(iii) valuable deposits of minerals, coal, petroleum and extractive materials by controlling the location of development to enable the efficient extraction of those deposits;
(iv) trees and other vegetation in environmentally sensitive areas where the conservation of the vegetation is likely to reduce land degradation; and
(v) water resources.
(f) To enable the development of land within this zone for purposes that are compatible with the rural character of the land;
(g) To enable the development of land for other purposes where it can be demonstrated by the applicant that no other land or buildings in the locality could reasonable be used for the proposed purpose and that such a use will not detrimentally affect the amenity of any existing or proposed nearby development.

102. According to cl 9(2) of the LEP within Zone No 1(a), no development is declared to be “prohibited” development and development for the purposes of a “mine” is declared by cl 9(2) to be “advertised development” that may be carried out with development consent.

103. As I have earlier noted, in granting the development consent, the fourth Respondent regarded the approved development as being for the purposes of the Timbarra Gold Mine established on Mining Lease 1386. There has been no suggestion in these proceedings that that categorisation of the approved development was not correct.

104. The Applicants assert that in granting the development consent, the fourth Respondent failed to come to the “opinion” as required by cl 9(3), namely that the “carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out”.

105. In the written Report on the second Respondent’s development application submitted to the fourth Respondent by its Director of Environmental Services, the requirements of cl 9(3) of the LEP are expressly addressed at p 15 and 16. After stating the zone objectives for Zone No 1(a) the Report contains the following passage:

The land subject of the development has been used for limited grazing activities in the past. The development is not likely to adversely impact on the agricultural potential of the land. Mitigating measures have been included in the development application and recommended by the relevant public authorities to protect or conserve soil stability, vegetation and water resources. The development is part of the Timbarra Gold Mine Project and will therefore facilitate the extraction of mineral deposits. Given the nature and scale of the development it is not considered to be incompatible with any rural characteristics the land may have. It is concluded that the carrying out of the development is considered to be consistent with one or more of the objectives of the zone. The development is permissible in Zone No. 1(a) with development consent.

106. The reasoning in this passage is not particularly clear or convincing and it is a little difficult to appreciate what particular zone objective is in mind when the author of the Report expresses the conclusion “that the carrying out of the development is considered to be consistent with one or more of the objectives of the zone”.

107. Not without experiencing some difficulty, I have concluded that the passage can be taken to be expressing the requisite opinion, in terms of cl 9(3) of the LEP, that the carrying out of the development is consistent with the objectives stated in par (c), namely:

to enable the development of land within this zone for purposes that are compatible with the rural characteristics of the land

108. Accordingly, the requirements of cl 9(3) of the LEP were satisfied by the fourth Respondent when granting the development consent.

109. The first to third Respondents’ reliance upon the consistency of the proposed development with objective (d), in my opinion, has not been established in the evidence. The relevant passage in the Report that I have recited contains no reference (express or implied) to objective (d).

110. For all the foregoing reasons, I hold that the Applicants have not established this ground of invalidity of the development consent.

G. THE APPLICANTS’ CHALLENGE TO THE VALIDITY OF THE WATER PERMITS AND PROPOSED WATER LICENCE

111. As noted in par 14, these claims are only justiciable in this Court if the PEO Act, s 253 applies to the claims.

112. The first to third Respondents contest the application of s 253 on the ground that the Applicants must establish that any alleged breach of the Water Act “is causing or is likely to cause harm to the environment”. I shall return to consider this contention after I have ruled upon the question of whether the Water Act has been breached.

113. It is convenient to consider together these claims alleging invalidity of the two relevant Water Permits and of the relevant proposed water licence because of the common alleged ground for invalidity, namely that the applications for the Water Permits and water licence were rendered invalid by virtue of the operation of the provisions of the Water Act, s 22BA.

114. Section 22BA is in the following terms:

22BA. (1) This section applies to a water source that is not the subject of a volumetric water allocations scheme under Division 4B if the Ministerial Corporation is satisfied that the water source is unlikely to have more water available than is sufficient to meet:

(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;

(c) to all specified class of applications for entitlements; or

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

(4) An order does not apply to an entitlement that would merely replace an existing entitlement and, for the purposes of this subsection, where land to which an entitlement relates is subdivided into parts, an application for an entitlement relating to one of the parts shall be deemed to be an application for an entitlement to 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.

(6) In this section:

entitlement means a licence, permit, authority or group licence;

water source means:

(a) a river, lake or section of a river; or

(b) a combination of 2 or more of them.

115. It is common ground that at the time that the two Water Permits were respectively granted (namely (i) 16 April 1998 in the case of Water Permit No 30PE002311; and (ii) 3 December 1998 in the case of Water Permit No 30PE002321), there was in existence a relevant (but different) order in force under s 22BA.

116. I shall consider separately the validity of the two Water Permits which were granted for different purposes.

117. As at 16 April 1998, when the first Water Permit was granted, the relevant s 22BA Order was that published in Government Gazette No 94 of 4 August 1995. That order, in terms, declared that “no application for an entitlement may be made except as specified below….”.

118. The order was expressed to relate “to all applications for entitlements other than applications for entitlements for” various purposes including the following:
(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.

119. Water Permit No 30PE002311 was issued on 16 April 1998 for a period of six months (the permit was renewed on 14 October 1998).

120. Condition 2 of the Permit was in the following terms:

(2) pumping from Nelsons Creek shall only be undertaken for the purpose of the construction of the infrastructure associated with the approved mine site as wholly contained within ml 1386. the infrastructure includes but is not limited to the heap leach pad, cruising plant area, contractors lay down area, pregnant and barren liquor ponds, storm ponds, haul roads. this permit in no way confers authority for water to be utilised from the aborementioned

creek for the purposes of mining and ore processing.

121. The first to third Respondents submit that “there is no evidence to suggest that the permit was granted otherwise than in accordance with, and conscious of, the embargo then in place”.

122. The first to third Respondents submit that on its face, the embargo (ie the s 22BA Order) prescribes an exception, namely item (3) earlier recited, which encompasses the Permit.

123. Finally, the first to third Respondents submit that the Court should apply the presumption of regularity to find that the Permit was issued in accordance with the requirements of the Water Act and is valid.

124. The scope and application of the presumption of regularity are aptly expounded in the following passages from the judgment of McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164:

In my opinion, this was a classic case for the application of the maxim whose rationale was explained by Lord Simonds in Morris v Kanssen [1946] AC 459, a company case, where his Lordship said (at 475):

omnia praesumuntur rite esse acta

The natural home of the maxim is public law. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. Thus a person who acts in a public office is presumed to have been validly appointed to that office: M’Gahey v Alston (1836) 2 M & W 206 at 211; 150 ER 731 at 733; R v Brewer (1942) 66 CLR 535 at 535 at 548; Hardess v Beaumont [1953] VLR 315 at 318-319. And a Council which must form an opinion as to whether there will be any detriment upon the granting of a planning permit is presumed to have formed the opinion before granting the permit: Pearce v City of Coburg [1973] VR 583.

The maxim was applied in a statutory context in this Court in Western Stores Ltd v Orange City Council [1971] 2 NSWLR 36 where objection was taken to the validity of the imposition of parking area rates on the ground that the resolutions, which imposed the rates, did not recite that in the opinion of the Council certain works or services would be of special benefit to the areas rated. The formation of such an opinion was a pre-requisite to the valid exercise of the power to make the rate under the Local Government Act 1919, s 121. Moffitt JA, giving the judgment of the Court, applied the maxim.

125. However, in the present case, there is evidence that suggests that the Permit may not have been regularly granted and its existence is, in my opinion, sufficient to displace the application of the presumption of regularity in the present case.

126. The evidence concerns the fact that the lawful occupier of Portion 37, holding that land on perpetual lease granted under the Crown Lands Consolidation Act 1913, was Mr William Edwin Petrie who consented to the second Respondent lodging a development application for the necessary works for the water licence and to the first Respondent lodging the contemporaneous application for a water licence under the Water Act. However, the evidence does not indicate that Mr Petrie consented to the lodging of the requisite application resulting in the issue on 16 April 1998 of Water Permit No 30PE002311.

168. I now return to consider the question whether my findings that both the Water Permits were invalid by force of the Water Act, s 22BA(5) declaring the respective applications for such permits to be invalid, mean that there has been established relevant breaches of the Water Act, being breaches that “are causing or likely to cause harm to the environment” within the meaning of the PEO Act, s 253.

169. In my judgment, my findings that both Permits were invalid because of the operation of the Water Act, s 22BA means that there have been relevant breaches of the Water Act. Those breaches involve the grant by the fifth Respondent of the Water Permits in breach of its duty imposed by s 22BA(5) to reject the respective applications.

170. Those breaches have necessarily involved the legal consequence of the unlawful (because not sanctioned by valid Permits) extraction of water from Nelsons Creek over a continuous period of more than two years during the curency of the Water Permits (Permit No 30PE002311 was granted for six months from April 1998 and was renewed for a further six moths in October 1998 and Permit No 30PE002321 was granted for 12 months on 3 December 1998 and was renewed for a further 12 months).

171. According to the affidavit sworn 4 October 2000 of Mr Marshall Lee, the Corporate Environment Manager for the second Respondent, some 26,300 cubic metres (26.3 megalitres) of water was pumped from Nelsons Creek to the Timbarra Gold Mine in 1999 and a further 1,075 cubic metres (1.07 megalitres) of water was pumped from Nelsons Creek up to 8 June 2000 when pumping ceased, coinciding with the cessation of gold production at the Timbarra Gold Mine.

172. Having regard to the totality of the expert evidence concerning the impact on threatened frog species of that water pumping activity, such water extraction from Nelsons Creek over that period of time was, in my judgment, “likely to cause harm to the environment” as that compound expression is broadly defined by the PEO Act and as the word “likely” in similar statutory contexts has been interpreted in the decided cases.

173. Accordingly, I would hold that the Applicants’ claims that the Water Permits were invalid are justiciable in this Court in the present proceedings, and the breaches of the Water Act that have been established, and my findings of the consequent likely causing of harm to the environment, justify the making of declarations of invalidity of the two Water Permits.

H. WHETHER THERE HAVE BEEN BREACHES OF THE CONDITIONS OF THE DEVELOPMENT CONSENT AND/OR WATER PERMIT

174. Since I have already held that the Development Consent and the Water Permits are invalid, the question of any alleged breach of relevant conditions of the Development Consent and Water Permit does not strictly call for adjudication.

175. However, for completeness (and assuming, contrary to my holdings that the Development Consent and Water Permits are valid) I shall but briefly consider the Applicants’ allegations of breaches of Conditions.

176. According to the Applicants’ Further Amended Application and Amended Points of Claim (both filed in Court on 8 November 2000), the alleged breaches of conditions are as follows:
(i.) Development Consent—Conditions 1, 2, 3, 6 and 7
(ii.) Water Permit No 30PE002321—Conditions 6, 7 and 8

177. Conditions 1, 2, 3, 6 and 7 of the Development Consent are recited in par 24 of these reasons.

178. Conditions 6, 7 and 8 of Water Permit No 30PE002321 are in the following terms:
(6) The pipeline be installed in such a way that it does not present a barrier to the movement of fauna within the area.
(7) If any species listed under schedule 2 of the threatened species conservation act 1995 are discovered during the undertaking of works, the proponent is to stop work immediately and the manager northern zone team, national parks and wildlife service Coffs Harbour is to be contacted immediately.
(8) In the event that any site of archaeological significance is discovered during the course of the activity then the proponent is to stop work immediately and the manager northern zone team, national parks and wildlife service Coffs Harbour is to be contacted immediately.

179. I shall consider firstly the allegations of breaches of the conditions of the Development Consent and thereafter, the allegations of breaches of the conditions of the Water Permit No 30PE02321, noting that my consideration must necessarily assume (against my holdings) the validity of the Development Consent and Water Permit because if, as I have already held, the Development Consent and Water Permits are invalid, there can in law be no breach of conditions of that Development Consent or Water Permit.

(i.) Development Consent Conditions
. Condition 1:

180. The Applicants have not substantiated their allegation of breach of this condition.

. Condition 2:

181. The Applicants rely upon the evidence of Mr James Morison, an officer of the Department of Land and Water Conservation, who carried out an inspection of the development site on 19 November 1998 and made the observations related in par 6 of his affidavit sworn 24 July 2000 (Exhibit B/1) as follows:
1. On 19 November, 1998 I inspected the proposed pump site on Nelson Creek. I found that work was substantially advanced in relation to establishing the pump housing. I also inspected a storage dam which had been constructed for water extracted from the creek. While the works were at that stage unauthorised, I was satisfied that the works were well constructed so far as meeting this Department’s requirements for such works was concerned.

182. This evidence indicated that infrastructure had been installed before the Water Permit No 30PE02321 had been issued (It was issued on 3 December 1998).

183. However, under cross-examination, Mr Morison was reminded of the existence, at the date of his inspection, of the Water Permit No 30PE002311.

184. This caused him to be unsure whether what he had observed on his inspection was work referable to the existing Water Permit or to the proposed Water Permit.

185. This being the principal evidence relied upon by the Applicants, I am left in considerable doubt as to whether what Mr Morison observed was evidence of a breach of Condition 2. The other documentary evidence relied upon (namely the daily records of pumping water from Nelsons Creek) is equally equivocal because of the existence at the times of the earlier Water Permit.

186. In the result, I am not satisfied on the evidence that a breach of Condition 2 has been established.

. Condition 3

187. The Applicants have not substantiated their allegation of breach of this condition. On the contrary, the evidence indicates compliance with the condition.

. Condition 6

188. The gist of the obligation imposed by this condition is for the making, in consultation with the Aboriginal community, of an assessment of Aboriginal heritage values of the development site prior to any disturbance of the site occurring in the carrying out of the approved development. There is an ancillary obligation that the requisite assessment be submitted to the National Parks and Wildlife Service before any disturbance is caused.

189. The evidence satisfactorily establishes that an archaeological survey was conducted on the development site on 23 October 1998 by Mr John Appleton, a consulting archaeologist, accompanied by Mr Kevin Walker, representing Mr Eric Walker, a community Elder of the Tabulan Bunjalung Aboriginal Community.

190. Mr Appleton’s survey was undertaken on foot and lasted four hours. He reported that he did not observe “any sites, recess or planes of indigenous significance in the survey area of the proposed pumping station and water pipeline and access road”.

191. Mr Appleton did not provide a copy of his survey report to the National Parks and Wildlife Service and the documentary evidence strongly suggests that the assessment was not provided to the National Parks and Wildlife Service before the site was disturbed for the purpose of installing the pipeline and pump infrastructure. The documentary evidence suggests that at least by the time the National Parks and Wildlife Service wrote to the Department of Land and Water Conservation on 23 August 1999 (well after the date of installing the infrastructure), the archaeological assessment had been submitted to the Service.

192. In that letter, the Service expressed the opinion that adequate consultation with the broader local Aboriginal community had not occurred.

193. The obligation imposed by Condition 6 for the assessment to be prepared “in consultation with the Aboriginal community” is not, unfortunately, precisely formulated. To conclude that the obligation was breached because only a representative of Tabulam Bunjalung Aboriginal Community was consulted in undertaking the required assessment (and not the Wahlabul/Malerah Bandjalung people whom the Applicants’ represent, both in the present proceedings and in claims under the Native Title Act 1993), may involve an interpretation of the Condition that is essentially unfair to the first to third Respondents even though they were only too well aware of the existence of opposition to the Timbarra Gold Mine Project by members of other Aboriginal communities. Having regard to the content of the assessment, the apparent breach of the ancillary obligation that the assessment be submitted to the National Parks and Wildlife Service, I think can only fairly be regarded as a technical breach.

194. I am acutely conscious of the extreme dissatisfaction felt by the Applicants’ with Mr Appleton’s archaeological survey work undertaken on the Timbarra Plateau in connection with the establishment of the Timbarra Gold Mine, including the particular survey undertaken on Portion 37 as required by Condition 6. An attack on Mr Appleton’s credit during his cross-examination did not succeed.

195. Accordingly, on balance, I am satisfied that the gist of the obligation was performed and that all that the Applicants have established is a technical breach of the ancillary obligation that the assessment be submitted to the National Parks and wildlife Service before, and not after, the site was disturbed by the installation of the pipeline.

. Condition 7:

196. The Applicants have not substantiated their allegation of breach of this Condition. On the contrary, the evidence suggests that the Condition was complied with.

(ii.) Water Permit Conditions
. Condition 6:

197. The Applicants did not finally press their allegation of breach of this condition.

. Condition 7

198. On 10 February 1999, the National Parks and Wildlife Service wrote to the Department of Land and Water Conservation advising that it had been brought to the Service’s attention—

that, in addition to the threatened frog species

which has been previously recorded in the vicinity of the pumping station on Nelson’s Creek, the threatened frog

and possibly

have recently been recorded upstream of the pumping station. NPWS is currently seeking confirmation of the identification of

by the Australian Museum

199. On 8 March 1999, the Service again wrote to the Department enquiring “whether work had ceased” at the pump site in view of the fact that two threatened frog species had been recorded in Nelsons Creek in proximity to the pumping station since pumping had commenced.

200. The letter also advised that a third species of frog “believed to be Litoria piperata” had been collected from the Creek and the identity of this species was “being resolved at present”.

201. The Department, by letter dated 18 March 1999 responding to the Service’s letter, included the following passages:

The Department is vested with substantial powers in relation to controlling access to water and in particular in light of the conditions attached to the permit. Clearly the exercise of a power to require pumping to cease may have serious consequences. It is incumbent on the Department to exercise such power with great care. Before requiring the pumping to cease, the Department must be satisfied that there is or are species which are endangered and whose existence is likely to be further put at risk by the pumping. At present the Department does not have such information.

It is important to note that Messrs. Andrew Connolly and David Mundine recently sought to obtain interim orders that pumping should cease, in the Land and Environment Court. This request was made in the course of proceedings they have brought seeking to have the Water Permit cancelled. The application for interim orders was substantially based on evidence obtained from Dr Michael Mahony in relation to the finding of an example of the Peppered Frog approximately 500 metres from the pump site. The application failed and a copy of the judgment of acting Judge Cowdroy (in particular paragraphs 4 and 7 of that judgment) is enclosed. His Honour was in essence, not satisfied that the expert evidence before him established that the Peppered Frog was put at risk by the pumping.

The Department remains concerned to consider whether the obligation in condition 8 of the Permit should be enforced. If you are able to provide the Department with further evidence of the likely impact of the pumping on any endangered species the Department will consider whether that obligation must be enforced.

202. The correspondence on this issue passing between the Service and the Department came to an end with the Service’s letter dated 23 August 1999 which included the following passage:

The NPWS has reviewed the report entitled The Effects of Pumping Water for Minesite Demands on the Ecology of Nelsons Creek (Nolan 1999) and an affidavit, dated 19 August 1999, by Professor Michael Tyler from the Department of Environmental Biology at the University of Adelaide. The NPWS is now satisfied that the concerns raised in our letter to DLWC, dated 24 July 1998, in respect to threatened frogs have been addressed.

203. I take the reference to “the affidavit dated 19 August 1999 by Professor Michael Tyler” to be a reference to the affidavit filed and read in the present proceedings. In that affidavit, Professor Tyler refers to the request he received on 11 February 1999 from the Service to identify a preserved frog collected from Nelsons Creek and to his response by letter dated 7 March 1999 which included the following passage:

Identifying the species from a single specimen is often a little difficult but I am reasonably satisfied that this specimen does not represent

. The frog is an adult male and its size is down at the known

recorded for

. It is unfortunate that the specimen has been a little bit squashed as a result of compression of the packing material during transport and this, I think, is why it appears a little flatter than I would expect it to be. I am sure that this is an artefact. The advertisement calls of

and

are distinctive, and it is likely that a reasonable recording of the advertisement call will confirm the identity of this species. There remains a possibility that some of these isolated populations of tree frogs have differentiated genetically but at the present time, the evidence available to me from the examination of this single specimen suggests that it represents

204. The evidence establishes that this specimen was collected on 21 December 1998 live in Nelsons Creek upstream from the pump site by Mr Ben Lewis, a Southern Cross University student working part-time for the first to third Respondents. When collecting the frog, he observed a number of frogs in the vicinity of the frog he collected. He notified the National Parks and Wildlife Service of his discovery and the Service asked Dr Mahony to identify the frog which was delivered to him alive on 24 December 1999. Dr Mahony identified the species as Litoria piperata.

205. Before the Service sought Professor Tyler’s opinion, it had sent the preserved specimen to the Australian Museum for identification. Mr Allen Greer of the Museum wrote to the Service on 9 February 1999, advising that he had examined the specimen and had compared it with the holotype and 13 AM paratypes of Litoria piperata. He did not think it was Litoria piperata but he could not say which species it was. He suggested to the Service that it send the specimen to Professor Tyler.

206. Does the foregoing evidence establish a breach of Condition 7?

207. Again, the Condition poses some difficulty of interpretation. Does it mean that if a threatened species is discovered during the undertaking of the works they are to be permanently suspended or only temporarily suspended, pending the giving of advice to the National Parks and Wildlife Service of the discovery? Accordingly, is the gist of the obligation the requirement to notify the Service of the discovery (so that it may investigate the matter for itself) or is it that work (including the pumping of water) cease altogether?

208. I think the more reasonable interpretation of the Condition is that is requires notice to be given to the National Parks and Wildlife Service of any discovery of a threatened species within the sphere of influence or impact of the pumping works. The obligation to “stop work immediately” would appear to be an ancillary obligation, designed to afford the Service, because of its particular statutory functions, the opportunity to investigate.

209. Although there is no evidence whether work ceased immediately upon the discovery, it is clear that the Service was notified and it was the receipt of the notice that led to the correspondence passing between the Service and the Department and the Service’s attempts to have the specimen that had been collected in Nelsons Creek scientifically identified. Until that identification was undertaken, it could not be said that there had been a discovery of the threatened frog species Litoria piperata. (It may be noted that the difference in opinion as to the identity of the species collected on Nelsons Creek between two renowned experts, Dr Tyler and Dr Mahony was not resolved in the course of the proceedings, notwithstanding the experts jointly conferring and jointly inspecting the specimen at the Australian Museum on 23 January 2001).

210. In the light of all of the evidence (and my reading of the obligation imposed by the Condition), I do not think that the Applicants have substantiated their allegation of breach of Condition 7.
. Condition 8:
211. The Applicants have not substantiated their allegation of breach of this Condition.

212. It follows from the foregoing analyses that the Applicants must be held to have generally failed to establish their allegations of breaches of conditions of the Development Consent and Water Permit No 30PE02321.

213. Even if they had substantiated their allegations (or any of them), only findings (and not declaratory relief) to that effect would have been appropriate in view of my earlier conclusions that the Development Consent and the Water Permits are invalid.

I. HAS THERE BEEN A BREACH OF THE NP&W ACT, s 118A?

214. The NP&W Act, s 118A(1) provides as follows:

118A Harming or picking threatened species, populations or ecological communities

(1) A person must not:

Penalty:

(a) in respect of any endangered species, population or ecological community—2,000 penalty units or imprisonment for 2 years or both,
(b) in respect of any vulnerable species—500 penalty units or imprisonment for 1 year or both.

215. The NP&W Act, s 5(1) defines “harm” as follows:

an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap, injure or kill, but does not include harm by changing the habitat of an animal.

216. The same section defines “threatened species” as having the same meaning as in the Threatened Species Conservation Act 1995.

217. The only evidence of “harm” to a threatened species was the admission made by Dr Robertson in the course of his oral testimony that there was the potential for tadpoles of the threatened stuttering frog species when present in that section of Nelsons Creek in which the pump was installed, to be sucked up by the action of the pump transferring water into the pipeline.

218. In view of my conclusions that the Development Consent and the Water Permits were not valid, the statutory defence provided by the NP&W Act, s 118A(3) is not available to the first to third Respondents.

219. However, I do not think that the very slight evidence relied upon by the Applicants substantiates their allegation or the granting of declaratory relief. Even if I had held that the evidence was sufficient to establish a breach of s 118A, I do not think, as a matter of discretion, any declaratory relief would be warranted, because obviously during the two year period that water was regularly pumped to the Timbarra Gold Mine site, the first to third Respondents were relying upon the authority so to act, provided by the Development Consent and Water Permit. Although I have now held that the Development Consent and Water Permit were invalid, their putative validity does have an important bearing on the question of culpability of the first to third Respondents, even though by virtue of the declarations of invalidity, they could not invoke the statutory defence provided by s 118A(3)(b).

J. WHAT IF ANY RELIEF IS APPROPRIATE TO BE GRANTED?

220. For the reasons that I have already given, I have concluded that the Development Consent and the Water Permits are invalid.

221. Even though the Water Permits are no longer in force (the last of them expired on 3 December 2000) and the Development Consent is not currently being acted upon because pumping of water from Nelsons Creek to the Timbarra Gold Mine ceased in June 2000, nonetheless the Applicants have established their entitlement to declaratory relief on the final hearing (though they had failed to obtain interlocutory relief). The challenges to the validity of the Development Consent and the Water Permits were vigorously resisted by the first to third Respondents (the fourth and fifth Respondents having filed submitting appearances), no doubt because the first to third Respondents were conscientiously pursuing their case in the related class 3 proceedings for the issue of the Water Licence, which if granted, would employ the infrastructure installed pursuant to the Development Consent.

222. Accordingly, I am satisfied that it is appropriate to make declarations declaring the Development Consent and Water Permits to be invalid.

223. The Applicants have also claimed prohibitory and mandatory injunctions. In my opinion, this relief should also be granted as consequential relief flowing from the grant of the declaratory relief.

224. The prohibitory relief should be moulded in the conventional manner to only restrain the relevant activity or development, unless and until the requisite development consent therefor is obtained under the EP&A Act and the requisite entitlement therefor is obtained under the Water Act.

225. The mandatory relief should, I think, require both the removal of the pump and pipeline infrastructure and the rehabilitation or restoration of the land that had been disturbed by the installation of that infrastructure.

226. Some reasonable time (eg three months) should be allowed for compliance with the mandatory injunction for the removal of the infrastructure and some additional time (another three months) should be allowed for restoration and rehabilitation of the disturbed land. The standard of restoration and rehabilitation should be similar to that reflected in Condition 4 of the Development Consent.

K. ORDERS

227. For all the foregoing reasons, I make the following orders:

1. Declare that the Development Consent granted by Tenterfield Shire Council on 24 September 1998 to the second Respondent’s development application No 98/15 is invalid.

2. Declare that Water Permits Nos 30PE002311 and 30PE002321 (including their respective renewals) are invalid.

3. Order that the first to third Respondents by themselves, their servants and agents and contractors be restrained from pumping water from Nelsons Creek to the Timbarra Gold Mine by using the pump and pipeline infrastructure installed on Portion 37, Parish of Maclean and the Timbarra Road, unless and until there is obtained therefor both the requisite development consent under the EP&A Act 1979 and the requisite entitlement under the Water Act 1912.

4. Order that the first to third Respondents remove from Portion 37 and Timbarra Road the aforesaid pump and pipeline infrastructure within three months.

5. Order that the first to third Respondents restore and rehabilitate, to the satisfaction of the Tenterfield Shire Council, the land comprising Portion 37 and Timbarra Road that has been disturbed by the installation and/or removal of the aforesaid pump and pipeline infrastructure within a further period of three months following the removal of that infrastructure.

6. The exhibits be returned.

7. The question of costs be reserved.

CITATION:	Donnelly and Anor v Capricornia Prospecting Pty Ltd & Ors. [2001] NSWLEC 225
PARTIES:	APPLICANTS: Donnelly & Anor. RESPONDENTS: Capricornia Prospecting Pty Ltd & Ors.
FILE NUMBER(S):	40243 of 1998
CORAM:	Bignold J
KEY ISSUES:	Development Consent :- challenge to validity-failure to consider environmental impact-Water Permits-challenge to validity by virtue of statutory embargo on application for the water entitlements.
LEGISLATION CITED:	Crown Lands Act 1989 Environmental Planning and Assessment Act 1979, s 77(1) s 90(1), s 91, s 91AB, s 110, s 124 Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 Land and Environment Court Act 1979 s 20(3), s 25B National Parks and Wildlife Act 1974, s 118A, s 176A Water Act 1912 s 10, s 11, s 18F, s 18G, s 22BA
CASES CITED:	Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 111 LGERA 446; Canyonleigh Environment Protection Community Inc v Wingecarribee Shire Council (1997) 95 LGERA 294; Carr v Minister for Land and Water Conservation [2000] NSWLEC 89 109 LGERA 175; Lend Lease Development Pty Ltd v Manly Council (1997) 92 LGERA 420; Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154; Mison v Randwick City Council (1991) 23 NSWLR 734
DATES OF HEARING:	08-10/11/00, 19/12/00, 30/01/01, 29/05/01, 15/08/01
DATE OF JUDGMENT:	09/21/2001
LEGAL REPRESENTATIVES:	APPLICANTS: Mr A Oshlack, Agent SOLICITORS N/A 1st - 3rd RESPONDENTS Mr D Miller, Barrister FOURTH RESPONDENT submitting appearance FIFTH RESPONDENT submitting appearance SOLICITORS: 1st - 3rd Respondents Phillips Fox 4th-5th Respondents N/A