Reported Decision: 113 LGERA 34
Land and Environment Court
of New South Wales
CITATION: Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55 PARTIES: APPLICANT:
DonnellyRESPONDENTS:
Delta Gold Pty Ltd & Ors.FILE NUMBER(S): 40098 of 2000 CORAM: Bignold J KEY ISSUES: Jurisdiction :- allegations of breach of various Acts—Variation of Environmental Protection Licence.
LEGISLATION CITED: Protection of the Environment Operations Act 1987 s 58, s 252, s 253
National Parks and Wildlife Act 1974, s 118DCASES CITED: Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 at 157;
Flaherty v Girgis (1985) 4 NSWLR 248;
McRae v Coulton (1986) 7NSWLR 644;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71;
Port of Melbourne Authority v Anshun Pty Ltd 147 CLR 589;
R v Alley Ex parte NSW Plumbers and Gasfitters Employer’s Union (1981) 153 CLR 376;
Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305;
Sinclair v Graham (1984) 2 NSWLR 253;
The Queen v Ludecke; Exparte Queensland Electricity Commission (1985) 159 CLR 178;
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52;
Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133DATES OF HEARING: 24/07/00-31/07/00, 01/08/00-04/08/00, 10/08/00, 29/01/01-30/01/01 DATE OF JUDGMENT:
03/23/2001LEGAL REPRESENTATIVES: 1ST TO FOURTH RESPONDENTS
APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
Mr Craig QC
5TH RESPONDENT
Mr Leggatt, Barrister
SOLICITORS
FIRST TO FOURTH RESPONDENTS
Phillips Fox
FIFTH RESPONDENT
Solicitor Environment Protection Authority
JUDGMENT:
IN THE LAND AND
Matter No. 40098 of 2000
ENVIRONMENT COURT OF
Coram: Bignold J.
NEW SOUTH WALES
22 March 2001
ANDREW DONNELLY
Applicant
v
DELTA GOLD PTY LTD
First Respondent
ROSS MINING N.L.
Second Respondent
CAPRICORNIA PROSPECTING PTY LTD
Third Respondent
TIMBARRA GOLD MINES PTY LTD
Fourth Respondent
ENVIRONMENT PROTECTION AUTHORITY
Fifth Respondent
JUDGMENT
Bignold J:
A. INTRODUCTION
1. By his amended class 4 application filed on 12 July 2000, the Applicant, who is an authorised representative of the Wahlabul/Malerah Bandjalung Aboriginal Communities and has claimed, pursuant to the Native Title Act 1993 to be a traditional custodian of the land and waters covered by Mining Lease 1386 (upon which land a goldmine has in the past few years been established and operated by or on behalf of the First to Fourth Respondents but recently has been placed on a “care and maintenance” contingency basis) claims declaratory and injunctive relief against the Respondents as follows—
(i.) a declaration that the variation of licence granted on 23 June 2000 by the Fifth Respondent to the Fourth Respondent pursuant to the Protection of the Environment Operations Act 1997 (PEO Act) is null and void for failing to comply with s 58(6) of that Act;
(ii.) an injunction restraining the First, Second, Third and Fourth Respondents from carrying out activities pursuant to the Licence Variation;
(iii.) a mandatory injunction for the removal of…
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- Case
- [2001] NSWLEC 55
- Decision Date
CaseChat Overview and Summary
The primary legal issue that the court had to address was whether the decision-maker, in this case an official from Delta Gold, had correctly applied the relevant environmental assessment criteria when approving the licence variation. The court needed to determine if there was a failure to consider relevant environmental factors, or if the decision was otherwise legally flawed. Additionally, the court had to consider whether the decision-maker's opinion regarding the environmental impact of the licence variation was rational and supported by the evidence.
In its reasoning, the court meticulously examined the decision-making process and the evidence presented to the decision-maker. The court noted that while the decision to grant the licence variation was significant, the critical issue was the decision that preceded it—the decision that the variation would not significantly increase the environmental impact. The court concluded that the decision-maker had appropriately considered the environmental assessment and the evidence before them. The court found that the decision-maker's opinion that the variation would not significantly increase the environmental impact was reasonable and supported by the evidence, thus upholding the validity of the decision.
Orders
Orders of the court
”, it is to be emphasised that it is not his decision to grant the Licence Variation that is the relevant decision in the present case, but his decision that preluded that decision, namely his opinion that the Variation would not significantly increase the environmental impact of the activity authorised or controlled by the Licence as varied).
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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