Donnelly v Delta Gold Pty Ltd

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:
Donnelly
RESPONDENTS:
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 118D

CASES 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 133

DATES 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:
03/23/2001

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
1ST TO FOURTH RESPONDENTS
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

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 all infrastructure installed to carry out the activities pursuant to the Licence Variation and for the rehabilitation of the land affected by that infrastructure;
(iv.) a declaration that the application made for the Licence Variation was invalid for failing to comply with the PEO Act s 59(2);
(v.) a declaration that the carrying out of the activities purported to be authorised by the Licence Variation will involve a breach of the National Parks and Wildlife Act 1974 s 118D (NP&W Act);
(vi.) a declaration that the First, Second, Third and Fourth Respondents have breached a number of conditions of Mining Lease 1386; and
(vii.) various alternative remedies in respect of the alleged breaches of the Mining Lease conditions.

2. Except for some specific allegations of breaches by the Third Respondent of the conditions of Mining Lease 1386 (which had been granted to the Third Respondent in 1996 to permit gold mining on an area of some 400 ha of Crown land situate on Timbarra Plateau) the Applicant’s claims are directed at a particular activity which has only very recently commenced to be undertaken on the site of Mining Lease 1386, namely the discharge to land by spray irrigation of treated waste waters currently stored in the raw water pond (part of the water storage infrastructure established at the Mine) being waste waters that had been generated by mining operations undertaken prior to June 2000, when mining operations comprising the mining and processing of ore ceased, and the mine was placed on a care and maintenance contingency basis.

3. Before commencing to such discharge of waste waters, the Fourth Respondent had sought and obtained from the Fifth Respondent a variation of its existing pollution control licence (granted to the Fourth Respondent on 1 January 1999) to authorise the installation and operation of additional discharge points within the site of Mining Lease 1386 for the discharge of waste waters via spray irrigation to (i) an area of forest land of some 10 ha situate in close proximity to the raw water pond; and (ii) an area of land comprising some 8 ha being cells 11 to 20 of the heap leach pad that had been established as part of the infrastructure of the mining operations (but had not yet been used for that purpose).

4. The Applicant’s principal claim advanced at the hearing is that the spray irrigation of waste waters authorised by the Licence Variation is an unlawful activity because the Licence Variation is itself invalid by reason of the failure by the Fifth Respondent to call for, and to consider, public submissions, in alleged breach of the PEO Act, s 58(6), before it granted the Licence Variation on 23 June 2000. (Additionally, there is a discrete claim for invalidity of the Licence Variation based upon the formal content of the application which gave rise to the grant of the Licence Variation.)

5. Irrespective of whether the spray irrigation activity is lawful or unlawful in terms of the PEO Act, the Applicant further contends that the activity will involve a breach both of the NP&W Act s 118D and of a particular conditions of Mining Lease 1386.

6. The hearing of the proceedings was expedited soon after they were commenced on 30 June 2000, when on that day, after a brief contested hearing, I granted an interim injunction restraining the First, Second, Third and Fourth Respondents from acting upon the Licence Variation which had been granted to the Fourth Respondent by the Fifth Respondent on 23 June 2000, authorising (i) the installation of additional discharge points for the discharge of treated waste waters from the Gold Mine operation; and (ii) the disposal to land by spray irrigation method of treated waste waters stored at the mine.

7. On 7 July 2000, after a longer contested interlocutory hearing, I continued the interim injunction but expedited the final hearing of the class 4 application. The final hearing was conducted over a period of 11 days, commencing on 20 July 2000 and concluding on 10 August 2000 when judgment was reserved.

8. In his final address Senior Counsel, on behalf of the First to Fourth Respondents, urged me to discharge the interim injunction now that I had heard the entire case and was obviously far better placed than I had been when originally granting the interim injunction (and thereafter continuing it), in evaluating the merits of the competing cases. On that occasion, I declined to immediately discharge the interim injunction but indicated that I would revisit the question if I had not delivered final judgment by 18 August 2000, in recognition of the fact that in practical terms, spray irrigation of the treated waste waters would cease to be an available option to the First to Fourth Respondents with the onset of the wet season commencing at the end of Spring of 2000 with the predicted consequent environmental risk of the stormwater capacity of the storage facilities failing to cope with the stormwater runoff likely to be experienced at the mine during the upcoming wet season. On 23 August 2000, final judgment not having been delivered in the proceedings, I discharged the interim injunction from midnight 25 August 2000 for the reasons given in my judgment delivered on that day in the knowledge that the Respondents desired to forthwith commence the spray irrigation program authorised by the Licence Variation, and upon the basis of my impact that the Applicant’s case presented at the final hearing did not justify either a continuance of the interim injunction, or the grant of a permanent injunction.

9. I should at the outset mention a number of matters that were raised prior to, or at the hearing, some of which do not otherwise feature in this judgment. Firstly, there is the fact that the Applicant, just before the commencement of the final hearing had sought to join the Minister for Mines who had opposed joinder on the ground that some, if not all of the relief claimed against the First to Fourth Respondents in respect of the alleged breaches of the conditions of Mining Lease 1386 (eg cancellation by the Court of the Mining Lease) was misconceived. In the result, the Minister was not joined without the Court being required to consider the question whether the relief claimed in respect of the alleged breaches of the conditions of the Mining Lease was misconceived, as had been contended on behalf of the Minister on the interlocutory hearing seeking his joinder. Although at the final hearing the Applicant maintained his claim that a number of the Mining Lease conditions had been breached, it was agreed between the parties that the question of the appropriate form and content of any relief, if the Applicant were ultimately held to have established relevant breaches, would need to be reserved for further and future consideration by the parties and by the Court.

10. Ultimately, the final hearing has been confined to the questions raised by the Applicant’s claims as to whether there have been any relevant breaches of (i) the PEO Act (as alleged against the Fifth Respondent); (ii) the NP&W Act (as alleged against the First to Fourth Respondents); and (iii) the conditions of Mining Lease 1386 (as alleged against the Third Respondent) but wholly reserving consideration of the question of any appropriate relief in respect of any relevant breach that may be established.

11. Secondly, it is to be noted that at the hearing I granted leave to the Applicant to amend his Points of Claim to allege that in granting the Licence Variation, the Fifth Respondent failed to consider the impact of the Variation upon “aboriginal relics” within the meaning of the NP&W Act. Such leave was limited to enable the Applicant to allege a failure to consider that matter on the basis of the evidentiary materials that had already been filed in the proceedings. However, I gave the Fifth Respondent the opportunity to respond to the fresh allegation and this led to the production of a further affidavit by Mr Dutaillis, the Environment Protection Officer employed by the Fifth Respondent at its Armidale office, who as authorised delegate of the Fifth Respondent, had granted the Licence Variation.

12. Thirdly, it is to be noted that at the hearing the Applicant sought leave to further amend his Points of Claim to allege a breach of condition 100 of Mining Lease 1386 which required submission to the Department of Urban Affairs and Planning of a “final hazards analysis” before mining was commenced. (In support of this amendment, the Applicant had filed an affidavit sworn by Mr Derek Mullins, an officer of the Department of Urban Affairs and Planning stating that his searches of the Department’s records had not revealed receipt of the “final hazards analysis”).

13. This particular application to amend was ultimately opposed by the First to Fourth Respondents because they claimed the need for more sufficient time to investigate the matter which not only arose belatedly in the course of the final hearing, but was belated in a more fundamental sense—inasmuch as condition 100 in terms, required the submission of the final hazards analysis “before mining was commenced” in circumstances where not only had mining been commenced and been undertaken throughout 1999 but where, at the time these proceedings were commenced, mining production had already been suspended. In the event, I refused leave to amend but only on the condition that the First to Fourth Respondents undertook not to raise any “Anshun” estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) by way of defence to any future claim that the Applicant might choose to bring in respect of the alleged breach of condition 100 of the Mining Lease. The Respondents gave the Court the required undertaking.

14. Fourthly, I should note that the Applicant was not legally represented in the proceeding but instead, was represented by Mr Oshlack, a non-lawyer, whom he had appointed to act as his agent pursuant to the Land and Environment Court Act 1979 s 63. Mr Oshlack has so acted, and is also so acting for the Applicant and/or other persons in the other proceedings pending in the Court that have brought against the operators of the Timbarra Goldmine. I mention this matter because, notwithstanding Mr Oshlack’s extensive practical litigation experience with this Court (in recent years he has frequently appeared as a litigant in person or as an authorised agent for others) and his obvious dedication to his appointed task, he is not a trained lawyer and in consequence, he has not been able to meaningfully participate in the legal debate on what has emerged as a fundamental legal question in respect of the alleged breach by the Fifth Respondent of the PEO Act s 58(6) namely what is the true nature of the present proceedings based upon that allegation and what is the true nature and scope of the Court’s jurisdiction and adjudicative role in respect of that allegation.

15. In respect of this all important question, all Respondents have submitted that the duty cast upon the Fifth Respondent by s 58(6) did not involve a jurisdictional fact with the consequence that the Court’s jurisdiction and role in the present proceedings was limited to the “judicial review” of the Fifth Respondent’s decision to grant the Licence Variation without first seeking and considering public submissions, with the consequence that the merits of that decision are not examinable by this Court in the proceedings.

16. Such an understanding of the Court’s role in the proceedings was also reflected in the submissions ultimately advanced on behalf of the Applicant at the final hearing but I fear in innocent ignorance of the legal distinction between judicial review adjudication and jurisdictional fact jurisdiction. Notwithstanding this feature of the case, it must also be noted that both the Applicant and the First to Fourth Respondents had adduced a large body of expert evidence at the hearing, which I admitted provisionally and subject to ultimate relevance (such ruling being necessitated by the objection raised by the Fifth Respondent as to the admissibility of the expert evidence that was adduced by the Applicant). In respect of this objection, the parties agreed in the course that I ultimately adopted at the hearing, namely to leave the ultimate adjudication on the objection to the final judgment in the case, which would necessarily decide the true nature of the Court’s adjudicative function in the proceedings.

17. Obviously most, if not all, of the expert evidence provisionally admitted into evidence, simply would not be relevant (save for any question of discretion) if the Court’s jurisdiction and adjudicative role were limited to that of judicially reviewing the decision of the Fifth Respondent to grant the Licence Variation, rather than that of determining for itself, on the basis of all the evidence whether the Fifth Respondent, in making that decision, had breached the obligation imposed by the PEO Act, s 58(6) to invite and to consider public submissions.

18. I must hereafter return to determine this all important question but firstly, I should pause to examine the juridical basis for each of the Applicant’s several claims, and the correspondingly available jurisdiction vested in the Court to adjudicate upon them.

19. Finally, I should mention the fact that on 16 January 2001, the Applicant filed a Notice of Motion seeking inter alia leave for the Applicant to reopen his case to enable him to adduce evidence that the First to Fourth Respondents “had breached the Licence Variation”. The Motion also claimed an injunction restraining the First to Fourth Respondents from carrying out the spray irrigation activity pursuant to the Licence Variation. The Vacation Judge adjourned the Motion to 29 January 2001 to be heard by the trial Judge. The Applicant’s Motion which was resisted by all Respondents was heard on 29 and 30 January 2001 when judgment was reserved. In reserving judgment, I informed the parties that obviously I would not deliver my reserved judgment on the final hearing until I had delivered judgment on the Applicant’s Motion to re-open the case but that if the Motion failed, I would contemporaneously give final judgment in the proceedings.

THE JURISDICTIONAL BASIS FOR THE APPLICANT’S CLAIMS AND THE COURT’S JURISDICTION TO DETERMINE THEM

21. As I have already mentioned, the Applicant alleges breaches of three separate legal regimes, namely breach of specific provisions of (i) the PEO Act; (ii) the NP&W Act; and (iii) Mining Lease 1386.

22. I propose to separately consider each of the relevant allegations of breach of these statutory provisions and to identify the source of the Applicant’s legal entitlement to claim redress in respect of such breaches, within the Court’s jurisdiction.

PEO Act

23. The principal alleged breach is that committed by the Fifth Respondent in granting the Licence Variation, without having invited and considered public submissions, before it varied the licence. In this respect, s 58, which deals with the subject of “variation of licences”, provides as follows:

58 Variation of licences

(1) The appropriate regulatory authority may vary a licence (including the conditions of a licence).
(2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition.
(3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority.
(4) A licence may be varied at any time during its currency, including on its being transferred to another person.
(5) A licence is varied by notice in writing given to the holder of the licence.
(6) If:
(a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and
(b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the

Environmental Planning and Assessment Act 1979,

the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

24. It is not in dispute that in the present case there was no invitation given for the making of public submissions and there was no consideration of public submissions before the Fifth Respondent granted the Licence Variation. Nor is it in dispute that the proposed variation had not been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979 (EP&A Act).

25. Accordingly, the sole issue in dispute concerning the alleged breach of the PEO Act, s 58(6) is whether “the variation of the licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence”. The Applicant’s case that the variation of the licence will have such an effect is strongly resisted by all of the Respondents.

26. As I have earlier mentioned, this issue raises the question whether the fact in issue (being the fact referred to in the PEO Act, s 58(6)(a)) is a “jurisdictional fact” which would require determination by this Court on the basis of all of the evidence, or whether it is a fact that is to be determined by the regulatory authority (in this case, by the Fifth Respondent) subject however to such determination being examinable by the Court in its judicial review jurisdiction.

27. Whereas I shall consider this question in greater detail later in these reasons, it is important to note even at this stage that considered from the viewpoint of available jurisdiction, this Court is vested with jurisdiction (i) to determine the question whether there has been a “breach of the Act” by virtue of the provisions of s 252 of the PEO Act (see also s 20(1)(ci) of the Land and Environment Court Act 1979); and (ii) to judicially review the decision of the Fifth Respondent to grant the Licence Variation—by virtue of the Land and Environment Court Act 1979, s 20(2)(a), s 20(2)(b), and 20(2)(c). However, although the Court’s jurisdiction includes judicial review, if it is held that the proceedings properly invoke the jurisdiction to determine whether there is a breach of the Act, and that involves a jurisdictional fact, then that jurisdiction, rather than the judicial review jurisdiction, is the jurisdiction that is to be exercised in the case.

As will later be shown, the vesting in this Court of such a comprehensive (and exclusive) jurisdiction is, in my judgment, itself an important factor in seeking the answer to the question posed.

28. Section 252 of the PEO Act is one of two sections contained in the Act, Pt 8.4 which is headed, “Civil proceedings to remedy or restrain breaches of Act or harm to environment”.

29. Section 252 deals with a breach of the PEO Act and s 253 deals with a breach of “any other Act or statutory rule made thereunder”.

30. Section 252 is in the following terms:
(1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations.
(2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations.
(3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach.
(4) Any such proceedings may be brought by a person on the person’s own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.
(5) 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.
(6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach.
(7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.
(8) In this section:

breach

includes a threatened or apprehended breach.

31. As earlier mentioned, the Applicant relies upon an alternative ground for challenging the validity of the Licence Variation, namely that the application for that variation was not properly made as is required by s 59(2) of the PEO Act, inasmuch as the common seal of the Fourth Respondent was not affixed to the application.

32. Section 59(2) states:

An application for the variation of a licence may be made only by or with the consent in writing of the holder of the licence.

33. According to the undisputed documentary evidence, the relevant application (made in the form apparently approved by the Fifth Respondent) was submitted to the Fifth Respondent at its Armidale Office undercover of the letter dated 17 May 2000 from the Second Respondent, signed by Mr Marshall Lee, that Company’s Environmental Manager. According to the application form Mr Lee signed it “as a person authorised by the licensee to sign this application form”. The application form had noted that the current licensee was Timbara Gold Mines Pty Ltd (the fourth Respondent) which according to the pleadings, is a wholly owned subsidiary of the second Respondent.

34. Accordingly, two issues are raised by this particular claim—
(i.) was the application for Licence Variation made by or with the written consent of the Licence holder (the Fourth Respondent)?
(ii.) if not so made, does that fact invalidate the Licence Variation?

NP&W Act

35. The Applicant alleges that the carrying out of the spray irrigation activity will involve a breach of the NP&W Act, s 118D. That section provides as follows:

(1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, population or ecological community if the person knows that the land concerned is habitat of that kind.

Penalty: 1,000 penalty units or imprisonment for 1 year or both.

(2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence:
(a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the

Threatened Species Conservation Act 1995, or

(a1) was the subject of a certificate issued under section 95(2) of the

(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 the Part, or
(c) was authorised to be done by or under Part 2 of the

Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property.

(3) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section:
(a) this section prevails (except in relation to a matter referred to in subsection (2) (b) or (c), and
(b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person’s failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section.

36. The terms “critical habitat” and “threatened species, population or ecological community” are defined by s 5(1) of the Act with the meanings ascribed by the Threatened Species Conservation Act 1995.

37. The Applicant alleges that the activity comprising the spray irrigation of waste waters authorised by the Licence Variation will significantly affect the habitat of threatened and endangered species, and hence will involve a breach of s 118D of the Act.

38. There are two obvious sources of jurisdiction vested in this Court relevant to this particular claim made by the Applicant—(i) the PEO Act s 253; and (ii) the NP&W Act, s 176A—see also the Land and Environment Court Act 1979, s 20(1)(cg) and (ci).

39. Section 253 of the PEO Act 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.

40. The NP&W Act, s 176A 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.

Alleged breaches of conditions of Mining Lease 1386

41. The Applicant founds his claim to relief in respect of alleged breaches by the Third Respondent of various obligations imposed by conditions of Mining Lease 1386, upon the PEO Act s 253. Although a breach of the Mining Lease conditions does not, per se, fall within the scope of the PEO Act s 253 (because the Mining Lease is not “an Act or statutory rule”), such a breach of the conditions arguably involves a breach of the Mining Act 1992 vide s 73(1), s 125(1)(b) and s 374A, and hence, such a breach would fall within the scope and ambit of the PEO Act, s 253.

42. The allegations of breach of the Mining Lease conditions concern conditions 32, 91, 101 and 102 of Mining Lease 1386 granted by the Minister for Mineral Resources to the Third Respondent by Deed dated 9 April 1996 (Exhibit E/1) which by cl 4 incorporates specified conditions “as conditions and provisions of the lease” and binds the leaseholder to “observe, fulfil and perform” the same, subject to the proviso that

if the leaseholder at any time during the term of the demise—

(i) fails to fulfil or contravenes the covenants and conditions herein contained—

this lease may be cancelled by the Minister by instrument in writing….

43. The relevant conditions of Mining Lease 1386 are in the following terms:

32. The lease holder must provide and maintain efficient means to prevent contaminated waters discharging or escaping from the subject area onto surrounding areas.

91. The lease holder shall ensure that all designs and works associated with the construction of the heap leach pads, the liquid storage and storm storage ponds (including methods and materials for lining) are carried out in accordance with professionally recognised engineering standards and practices appropriate for their construction and that such works are carried out under the supervision and control of a person or organisation with recognised experience in the field whose qualifications and experience are recognised by the Institute of Engineers, Australia.

101. The lease holder shall carry out an appropriate Community Liaison Programme in respect of major developments at the site.

102.The lease holder must ensure that the total storm storage capacity within the intermediate liquor storage, the pregnant liquor storage, the barren liquor storage and storm ponds is not less than 140 ML.

ALLEGED BREACH OF PEO ACT, S 58(6)—A JURISDICTIONAL FACT?

44. As I have earlier mentioned, the Applicant, in his final address, mounted his challenge of the Fifth Respondent’s decision to grant the Licence Variation without first inviting and considering public submissions, upon the ground that the decision was “manifestly unreasonable” insofar as it was founded upon an assessment that the Licence Variation would not authorise “a significant increase in the environmental impact of the activity authorised or controlled by the licence”. As the address was developed, it also alleged that the decision-maker had not considered relevant matters, eg whether aboriginal relics would be adversely affected by the spray irrigation activity.

45. Thus, the Applicant’s final address was only suggestive of a challenge which was entirely based upon conventional grounds of judicial review of administrative action as discussed, for example in the oft cited judgment of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

46. However so to understand the Applicant’s final address does not necessarily mean that the Applicant is to be taken as having abandoned his case as formulated in his amended class 4 application filed on 12 July 2000 as pleaded in his amended points of claim filed on the same day. As so formulated and pleaded, the Applicant’s case was not founded upon a claim seeking the judicial review of the Fifth Respondent’s decision to grant the Licence Variation, but rather, was founded upon an alleged breach of statutory duty by virtue of an allegation that the Licence Variation will have a significant impact upon the environment. In this respect, it should be noted that the Respondents, in their final addresses in the case, addressed the Applicant’s claims on the alternate bases of the Court’s adjudicative function—(i) the judicial review of the fifth Respondent’s decision; and (ii) the Court, determining for itself, whether there had been a breach by the fifth Respondent of its duty under the PEO Act, s 58(6)).

47. Despite this uncertain state of affairs concerning the disparity between the Applicant’s case as pleaded and the case as presented at the hearing it nonetheless remains the Court’s duty to determine the precise nature of the Court’s adjudicative function in respect of the Applicant’s claims, recognising “…that within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessing executive and administrative powers exercise them only in accordance with the laws that govern their exercise: per Gaudron J in Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 at 157.

48. I have already tentatively suggested that this question is substantially answered by virtue of the plenary nature of the relevant jurisdiction exclusively vested in the Court that I have earlier noted, and most especially, the jurisdiction that is conferred by the PEO Act, s 252 in the express terms of “restraining and remedying a breach on threatened breach of the Act”.

49. Although all Respondents have submitted that the fact whether a Licence Variation “will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence” is not a jurisdictional fact, the question was not satisfactorily explored in argument principally because the Applicant was not legally equipped to mount any competing argument. Nonetheless, the Court must answer the question, despite the absence of competing argument.

50. Ultimately, the answer to the question depends upon the proper construction of the PEO Act s 58(6). That this is so is made very clear by the judgment of Chief Justice Spigelman in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52, (a case involving a challenge to the validity of a development consent granted for the extension of the Goldmine established on ML 1386) where at p 60, the Chief Justice propounds as the solvent to the relevant question:

Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears.

51. The Chief Justice elaborates upon this statement in the following extended passage at 60/61:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave ; Re Bennett (1945 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.

Objectivity and essentiality are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of essentiality will often suggest objectivity.

Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes jurisdictional fact as some kind of doctrine is, in my opinion, misconceived. The appellation jurisdictional fact is a convenient way of expressing a conclusion—the result of a process of statutory construction.

Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

Where the process of construction leads to the conclusion that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power—it is not necessary to determine which, for present purposes—a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense—Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

52. Thereafter, in his judgment, the Chief Justice examines many of the decided cases that have dealt with the question whether a factual reference in a statute is, or is not, a jurisdictional fact, in all of which cases the court is concerned to give effect to the legislative intention which (in the absence of express legislative pronouncement) is “to be extracted from implications found in inferences to be drawn from the language it has used”: per Sir Frederick Jordan in Ex Parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298.

53. In the course of his judgment, in Timbarra the Chief Justice derives from the decided cases a number of “important and usually determinative, indications of parliamentary intention”, the first one of which, noted at 62, is—

whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker in the exercise of such a power (where) such a factual reference is unlikely to be a jurisdictional fact (whereas) the conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

54. In my respectful opinion, it is clear from the statutory language that the relevant factual reference in the PEO Act s 58(6) is “preliminary or ancillary to the exercise of the statutory power” within the Chief Justice’s dictum.

55. Thus, upon a proper construction, it is clear that s 58(1) confers the power to vary a licence (s 58(2) relevantly extending that power) with subsections (3), (4) and (5) respectively providing (i) the circumstances in which the variation power may be exercised (ii) when it may be exercised; and (iii) how it may be exercised.

56. Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions “before it varies the licence”. This duty so formulated is clearly a matter that is “preliminary or ancillary to” the exercise of the statutory power of variation that is conferred by s 58(1).

57. In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the “essentiality” element identified in Chief Justice’s judgment in Timbarra.

58. It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the “objectivity” element identified in the Chief Justice’s judgment in Timbarra.

59. There is, of course, considerable legislative precedent in the field of environmental planning law for the existence of such a duty, operating by way of preliminary limitation or condition precedent, to the exercise of a statutory power eg EP&A Act 1979 s 79 in relation to a consent authority’s consideration of a development application for designated development cf the Local Government Act 1993 s 114 to s 118 (now repealed) and the Local Government Act 1919 s 312A and s 342ZA (now repealed). In respect of the now repealed Local Government Act 1919 s 312A there is existing authority in this Court that it is for this Court to determine for itself whether “the enjoyment of land may be detrimentally affected by the erection of a proposed building” being the fact that enlivened the duty to give public notice of the building application: see Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71 (per Pearlman CJ).

60. Notwithstanding the foregoing conclusions, it must be realistically acknowledged that the question of the precise nature of this Court’s adjudicative function in respect of proceedings challenging the validity of administrative action taken under the State’s environmental planning and protection laws continues to provoke lively debate in the cases. Thus, just a few months after the unanimous decision of the Court of Appeal in Timbarra, the Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 encountered the argument that a decision by a determining authority pursuant to the EP&A Act s 112(4)(b)(i) to “modify” a proposed activity involved (and I now quote from the President’s judgment at 151)—

a jurisdictional fact cf

(1999) 46 NSWLR 55. The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the committed works were modifications within the ambit of s 112(4)(b)(i): cf

(1997) 97 LGERA 1.

61. In that case, the majority of the Court (Mason P and Sheller JA) found it unnecessary to decide whether the EP&A Act s 112(4)(b)(i) involved a jurisdictional fact (see at 151 per Mason P and at 171 and 172 per Sheller JA) although Sheller JA expressed the view at 172 that the task of deciding the various matters arising under the EP&A Act s 112 including the power to modify the proposed activity, were “entrusted to the determining authority” and “(I)f it acted bona fide and reasonably, its decisions could not be challenged, even if some other body on the same material might legitimately have reached a different view”.

62. The dissenting judgment of Fitzgerald JA contains a lengthy discussion of the question—see at p 191 to p 193 in which his Honour concludes that the opinions of the RTA and the Minister were “not conclusive” and it was for the Court to determine for itself whether the modifications relevantly “reduced the detrimental effects on the environment of the proposal’.

63. In Timbarra, the respondent had unsuccessfully sought to defend the appeal by relying upon the Court of Appeal’s decision in Londish (see at 59) with the Chief Justice holding at p 60 “that it is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact”. The Chief Justice went on to observe (at 60) that Londish had decided that the relevant factual finding in the statutory context there involved (being the characterisation for the purposes of a planning instrument of an approved development) was not a finding of jurisdictional fact.

64. If, immediately following the Timbarra decision, the revival in the Transport Action Group case of the decision in Londish in support of an argument confining this Court’s adjudicative role to the judicial review of challenged administrative action, indicates or suggests that the question may not yet have been finally resolved (either in this Court or in the Court of Appeal) then the more recent decision of the High Court of Australia in the Enfield City Corporation case is likely to prove of far more decisive significance in the resolution of any continuing doubt or uncertainty: cf the Article “Jurisdictional Fact: A Dilemma for the Courts” by Linda Pearson (2000) 17E PLJ 453. In particular, it is unlikely, in my respectful opinion, that the decision in Londish can be taken to have survived the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in Enfield. Nor is it referred to in the Court’s judgments. However, Bentham v Kiama Municipal Council (1986) 59LGRA 94, a decision of this Court in 1986 that was later approved in Londish is cited in the argument in Enfield in support of the proposition that “(I)n dealing with issues of fact and degree in planning matters, the court should give considerable weight to the decision of the specialist planning body”— see at 138, but is not referred to in the High Court’s judgments which did not approve the proposition advanced in reliance upon Bentham.

65. In Enfield, the High Court, reversing the decision of the Full Court of the South Australian Supreme Court, unanimously held that whether a proposed development was “non-complying” development within the meaning of the South Australian Development Act 1993, s 35(3) was a jurisdictional fact which the trial Court (the Supreme Court) must determine upon the evidence before it, “in whatever form the proceeding in the Supreme Court had been cast”: see at 151. Earlier, the joint judgment had stated at 148:

The term

(which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

66. In the course of their reasons in the joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ observed (at 144) that the jurisdiction of the Supreme Court that had been invoked by the plaintiff was not “judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth)…but its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto”.

67. In my respectful opinion, this discriminating analysis of the true nature of the jurisdiction that was invoked by the plaintiff in Enfield (challenging the validity of the grant of development consent) provides a particularly apt and illuminating appreciation of this Court’s specialist and exclusive jurisdiction “to restrain or remedy a breach” (or apprehended breach) of planning or environmental laws that is conferred by the EP&A Act s 123; the PEO Act s 252 and s 253; and the NP&W Act, s 176A. (There are several other sources of comparable jurisdiction expressly conferred upon this Court in similar statutory language).

68. In my respectful opinion, when proceedings brought in this Court (such as the present proceedings) challenging the validity of administrative actions, are truly and rightly conceived to be claims “to restrain or remedy a breach or threatened breach of relevant laws”, the adjudication that is required of the Court, must invariably and inevitably be whether or not there has been established a relevant breach or threatened breach of the law, as alleged in the proceedings, and where objective facts are crucially or essentially involved in the alleged breach (such as in the present case) this Court obviously must determine for itself the existence or non-existence of such facts, on the basis of the available evidence. In such circumstances, the conclusion must invariably be that the facts are jurisdictional facts.

69. Indeed, it is the very creation, in the same statute, pursuant to which the impugned administrative action is taken, of specialist jurisdiction vested in the Court to restrain or remedy a “breach” (or threatened breach) of the statute that is, in my opinion, a powerful legislative indication that it is intended that this Court must determine for itself, whether or not there has been a relevant breach of the statute, rather than to leave that question to the decision of the very administrative agency whose action (or inaction) is the basis for the allegation of breach of the statute . There is something fundamentally anomalous and unsatisfying in the view that the question of whether an administrative agency has relevantly breached the law, is to be answered according to the opinion held by that agency (subject albeit to the judicial review of that opinion).

70. For all of the foregoing reasons, I hold that the question whether the Licence Variation in the present case will relevantly “authorise a significant increase in the environmental impact of the authorised activity” is a question concerning a jurisdictional fact which this Court must determine for itself, on the basis of all relevant evidence. It follows that in the present case it is not the Court’s duty to judicially review the reasonableness of the decision of the Fifth Respondent on the question although, as will later be shown, evidence concerning that decision, and the decision itself, may be relevant to, and carry weight in, the Court’s determination of the relevant question: see City of Enfield at p 154 - p 156 in the joint judgment of the Court and at p 158 - p 159 per Gaudron J in her separate judgment, which passages are recited hereafter.

HAS THE APPLICANT ESTABLISHED A BREACH OF THE PEO ACT S 58(6)?

71. In the present case, the Applicant alleges a breach by the Fifth Respondent of s 58(6) by virtue of its failure to invite and to consider, public submissions, before granting the Licence Variation. As I have earlier noted, it is common ground that the Fifth Respondent did not invite or consider public submissions before it varied the Licence. In order to prove the alleged breach, the Applicant must prove that the Licence Variation “will authorise a significant increase in the environmental effect of the activity authorised or controlled by the licence”. (It is not in contest that the proposed variation has not been the subject of environmental assessment and public consultation under the EP&A Act).

72. I have already held that the requirement for inviting and considering public submissions operates in the nature of a condition precedent to the exercise of the statutory power of variation. However, that requirement is not a universal requirement—rather, it only operates where the two circumstances respectively defined in par (a) and par (b) of s 58(6) both apply in a given case.

73. By way of preliminary observation, it may be noted that no equivalent requirement operated under the statutory licensing regime repealed and replaced by the PEO Act, which in s 3 contains express policy objects for promoting “community involvement in environment protection” (vide par (b) and par (c)) which objects no doubt informed the content of s 58(6)—see also s 45(l).

74. The statutory power of variation conferred by s 58(1) is expressed in wide terms “may vary a licence (including the conditions of a licence)”. Subclause (2) further widens the power. It is obvious from the width of the power that there may be a variation, which by virtue of its nature and effect eg imposing of a condition requiring environmental monitoring of the existing activity (see s 66(1)), clearly falls outside the ambit of the circumstances detailed in par (a), and (b), of s 58(6) and accordingly such a variation may be granted without the possibility of the requirement for inviting and considering public submissions being enlivened. Clearly the present case does not involve such a variation. Rather, it involves a variation which permits additional discharge points for the disposal of treated wastewaters that have been produced by the mining operation, and accordingly at least potentially, it is possible that such a variation may “authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence” within the meaning of s 58(6)(a).

75. I have earlier stated that it is common ground that the Licence Variation was not preceded by “any environmental assessment and public consultation” under the EP&A Act within the meaning of s 58(6)(b). Notwithstanding this fact, it is useful to consider the effect of this statutory circumstance, in the delineation of the scope and ambit of the statutory duty.

76. The existence of the twin circumstances respectively outlined in s 58(6)(a) and (b) which in combination, enliven the statutory duty, indicates a legislative recognition of the possibility that a variation of a licence “will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence” but nonetheless, there will be no need for inviting and considering public submissions because the variation has already been the subject of “environmental assessment and public consultation under the EP&A Act”. This last mentioned environmental assessment and public consultation is not likely to be an adventitious circumstance, but rather is likely to be the direct result of the operation of the mutually relevant provisions of EP&A Act and the PEO Act that operate in respect of the concept of “integrated development” as defined by the EP&A Act, s 91 which includes “development that…requires development consent and one or more of the following approvals” (which “approvals” expressly include environmental protection licences granted under the PEO Act)—see also the EP&A Act, s 91A and the PEO Act, s 50 and 51.

77. In passing, I should note that the reason why the spray irrigation of treated wastewaters authorised by the Licence Variation had not been subjected to environmental assessment and public consultation under the EP&A Act was not explored in these proceedings, although I hasten to add that no such enquiry was necessary for the adjudication on the issues raised by the present proceedings. However, having regard to the relevant history concerning (i) the grant of Mining Lease 1386 at a time when there was no environmental planning instrument in force in respect of the land the subject of that Mining Lease; and (ii) the subsequent coming into force, very soon after the grant of the Mining Lease, of the Tenterfield Local Environmental Plan 1996 before the mine had been developed and could thereby have acquired the status of an “existing use” in terms of the EP&A Act (both these facts are referred to as the “background facts” in the Chief Justice’s judgment in the Timbarra Protection Inc case—see at p 55 and p 56) and having regard to the now current relevant planning laws, it is not difficult to speculate that the only valid reason why the activity authorised by the Licence Variation was not subjected to environmental assessment and public consultation under the EP&A Act is to be found in the operation of the Mining Act 1992, s 74(1) which is in the following terms:
(1) While a mining lease has effect:
(a) nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area, and
(b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease.

78. But for this provision, the use of the 10 ha of forested area for the receival of spray irrigation of the treated wastewaters generated by the Goldmine would clearly constitute “development” within the meaning of the EP&A Act requiring the grant of development consent.

79. It is now necessary to consider some textual features of the statutory circumstance outlined in s 58(6)(a), namely (i) the meaning of the expressions “significant increase” and “environmental impact” which are not defined terms in the PEO Act (either individually or as a compound expression); and (ii) the scope and ambit of the concept of “an activity” being “authorised or controlled by the licence”.

80. As to (i), the absence of definition means that the expressions are (subject to context) to be given their natural meanings as ordinary English words and phrases. These natural meanings are reinforced by contextual considerations which include the fact that the PEO Act is principally concerned with “the protection, restoration and enhancement of the environment” (vide s 3(a)) and the fact that other legislation, principally the EP&A Act, seeks to advance this same or similar object. The expressions “significant increase” and “environmental impact” where employed by the EP&A Act have acquired settled meanings in the past 20 years and those meanings would appear to be perfectly appropriate to be attributed to the same expressions, where they are employed by the PEO Act. The Legislature clearly appears to have adopted this alignment position, for example, by enacting s 45(i) which requires consideration of a “licence application” made under the PEO Act (which expression includes an application for variation of a licence) to include “any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the EP&A Act”.

81. As to (ii), a consideration of the context of the PEO Act, Pt 3 indicates that it is environment protection licences that “authorise the carrying out of scheduled development work” or “scheduled activities” at premises (s 43(a) and (b)) or “control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from such activity” (s 43(d)). See also s 47, s 48 and s 49 which create offences of carrying out scheduled development work or scheduled activities without being the “holder of a licence that authorises the activity to be carried out”.

82. “Scheduled activities” (both “premises-based” and “not premises-based”) are respectively specified in Schedule 1 to the Act. (The word “activity” is defined in the Act’s Dictionary as meaning “an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal)”.

83. Part 1 of Schedule 1 enumerates a large number of “activities premises-based” including “Mines” which is defined in the manner hereinafter recited.

84. In respect of “such premises-based activities”, it is necessary to note that the PEO Act, s 56(1) requires the licence “to specify the premises to which it applies” and subsection (2) provides as follows:

The premises so specified are to be the whole of the premises at which the activities authorised or controlled by the licence (and ancillary activities) are carried on.

85. As will presently be shown, the Licence Variation, the subject of the present proceedings, was granted in respect of what may be described as a “deemed licence”, ie a licence in force under the statutory regime that was repealed and replaced by the PEO Act and which is given continuing force under the PEO Act in a manner shortly to be mentioned.

86. As earlier mentioned, the only issue in dispute concerning the alleged breach of s 58(6) is whether the Licence Variation “will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence”. This is essentially a factual question requiring a factual determination based upon the totality of relevant evidence.

87. Although there may be other methods or approaches which could be employed in order to make that requisite factual determination, the method or approach that I propose to adopt is to make a preliminary comparison between—
(a.) the environmental impact of the activity as authorised or controlled by the licence without regard to the proposed variation; and
(b.) the environmental impact of the activity authorised or controlled by the licence as it is proposed to be varied

with a view to determining the ultimate question whether the “variation will authorise a significant increase in the environmental impact of the authorised or controlled activity”. In my formulation I have referred to “the proposed variation”, but I could just have aptly referred to it as “the variation” cf par (a) and par (b) of s 58(6). The future tense “will authorise” in its statutory context also indicates that the requisite fact is to be found to exist (or not to exist) in a prospective sense.

88. The method I propose to employ is virtually the same as the method that is prescribed by cl 1 of Pt 2 of Schedule 3 of the Environmental Planning and Assessment Regulation 1994 for determining whether “alterations or additions” are “designated development”, for the purposes of the EP&A Act, Clause 1 providing as follows:

Is there a significant increase in the environmental impacts of the total development?

1 Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

89. Speaking of the duty imposed by cl 1 upon the consent authority (and upon this Court in determining a class 1 proceeding by way of appeal against the consent authority’s determination), the Chief Judge held in Westport Marina Development Pty Ltd v Concord Council (2000) 109LGERA 451 at 457 that

(T)he task….was to form the opinion that the proposed development did not significantly increase the environmental impacts of the total development compared with the existing development.

90. In my judgment, s 58(6)(a) of the PEO Act, imposes, by necessary implication (or perhaps directly by virtue of the word “increase”), the requirement to make a comparison between (i) the environmental impact of the activity authorised or controlled by the licence as proposed to be varied, and (ii) the environmental impact of the activity authorised or controlled and the Licence, without regard to that variation, in order to determine whether the variation “will authorise a significant increase in the environmental impact of the activity” etc.

91. Before considering these comparative environmental impacts as a prelude to making the requisite factual finding, it is first necessary to determine with some precision the true nature of each of the following:-
(i.) the deemed Licence;
(ii.) the activity that is authorised or controlled by that Licence; and
(iii.) the activity that is authorised or controlled by that Licence as varied.

deemed

92. The Licence (considered without regard to the Licence Variation) is relevantly Licence No 005771 granted to the Fourth Respondent on 6 January 1999 in respect of “the premises comprising Mining Lease 1386”. That licence was granted pursuant to the Pollution Control Act 1970 (which was subsequently repealed by the PEO Act when it came into force on 1 July 1999 but by virtue of cl 4 of Pt 3 of Schedule 5 to the PEO Act, the licence “is taken to be a licence issued under this Act, subject to the regulations under this Schedule”). Existing licences are the subject of the provisions made in Pt 2 of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 6(1) providing that an existing licence “is taken to be an environmental protection licence issued under the Act except as provided by this Part.”

93. In order to determine the precise nature of the “deemed” licence thus created and “the activity” that it “authorises” or “controls”, it is necessary to consider Chapter 3 of the PEO Act which contains provisions dealing with environment protection licences.

94. Section 43 specifies that licences “may be issued for the following purposes:
(a) to authorise the carrying out of scheduled development work at any premises, as required under section 47,
(b) to authorise the carrying out of scheduled activities at any premises, as required under section 48,
(c) to authorise the carrying out of scheduled activities not related to premises, as required under section 49,
(d) to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122.

95. Section 48 applies to “scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on”.

96. Schedule 1, Pt 1 is headed “Activities premises-based” and includes the following:

Mines

that mine, process or handle minerals (being minerals within the meaning of the

other than coal) and that disturb or will disturb a total surface area of more than 4 hectares of land associated with a mining lease or mineral claim or subject to a section 8 notice under the

by:

(1) clearing or excavating, or
(2) constructing dams, ponds, drains, roads, railways or conveyors, or
(3) storing or depositing overburden, ore or its products or tailings.

97. Section 50 deals with a licence that relates to “controlled development” (being defined as “development that cannot be carried out without development consent under the EP&A Act”) and provides that a licence must not be granted unless development consent has been granted for the controlled activity. The section does not apply if development consent is not necessary because of an “existing use” entitlement.

98. Section 51 deals with a licence in relation to “integrated development” (being a term defined by the EP&A Act s 91).

99. Licence 005771 was granted pursuant to the Pollution Control Act 1970 which contained in Pt 3A a similar statutory regime for the granting of licences to that now contained in Chapter 3 of PEO Act. In particular, the Pollution Control Act, s 17A provided for the making of a licence application “in respect of one or more of the following:
(a) scheduled premises or scheduled equipment within the meaning of the Clean Air Act 1961,
(b) the pollution of waters within the meaning of the Clean Waters Act 1970,
(c) a drain which discharges or is likely to be used for discharging any pollutants into any classified waters within the meaning of the Clean Waters Act 1970,
(d) scheduled premises within the meaning of the Noise Control Act 1975.

100. The definition of “scheduled premises” contained in the Clean Air Act 1961 included the following:

any premises:

(a) used for any of the facilities or works for the time being prescribed by clause 1 of Schedule 1”

101. Clause 1 of Schedule 1 prescribed a number of facilities or works, including the following:

Grinding and milling works, being works in which more than 50 tonnes per annum of agricultural crop products, uncured rubber, rock, ores, minerals or chemicals are processed by grinding, milling or separating into different sizes by sieving, air elutriation or in any other manner except by wet screening or wet sieving.

102. Similarly, the Noise Control Act defined “scheduled premises” as “any premises of a class for the time being described in the Schedule”. Item 1 of the Schedule included the following:

Any premises:

(c) having a site area of 20,000 square metres or more that is available to be worked, and any part of which is used for extraction, mining, excavating, dredging or quarrying of rock, coal, metalliferous ores, precious metals, sand, soil, clay, mud or any material of a similar nature, whether at the surface or underground, for the purpose of winning the material for sale or for use at other premises.

103. The premises to which Licence No 005771 was expressed to apply were described as “The Timbarra Gold Mine - Mining Lease 1386”.

104. The Licence does not compendiously define “the activity” it authorises or controls other than by its reference to “the Gold Mine” which is said to comprise the relevant “premises”.

105. The Licence stipulates the conditions upon which the mining operations may be undertaken. These conditions (which pursuant to the Pollution Control Act 1970, s 17BA, address “the whole of the pollution of all kinds caused or likely to be caused by the activity”) include conditions authorising the discharge of polluted water from five nominated discharge points, subject to compliance with specified environmental criteria.

(ii) The Activity authorised or controlled by the deemed Licence

106. Having regard to (i) the scope and content of Licence 005771 and (ii) the provisions of Chapter 3 of the PEO Act relating to environment protection licences, I am of the opinion that that deemed Licence is an environment protection licence that “authorises the carrying out of scheduled activities at premises” within the meaning of the PEO Act, s 43(b) and s 48, namely mining (comprising the gold mine situate at premises comprising Mining Lease 1386). Additionally and conformably to the PEO Act, s 44(2), the deemed Licence, also by virtue of its provisions relating to the designated discharge points for water pollutants, “regulates all forms of pollution (including water pollution) resulting from those activities”, section 44(2) providing as follows:

Licences with respect to scheduled development work or scheduled activities may regulate all forms of pollution (including water pollution) resulting from that work or those activities.

107. Having regard to the relevant provisions of the PEO Act (including those creating the offence of carrying out scheduled activities without the requisite licence) I think it clear that when the Act refers to a “scheduled activity”, it is concerned with the specified activity as a category or genus rather than with the several individual and detailed elements or processes which may be involved or employed in the carrying out of that activity. So understood, the relevant category or genus of the activity authorised by the deemed Licence in the present case, is the Gold Mine established on Mining Lease 1386.

108. This finding reflects the established approach to the categorisation of “the purposes for which land may be developed” that has long been adopted in respect of town planning and environmental planning legislation eg see Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 where McHugh JA surveys the earlier court decisions on this subject. Similarly, in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101, principles or approaches derived from the planning law were applied to questions raised by the terms and conditions of a licence granted under the Pollution Control Act 1970.

109. The analogy with the well established town planning principles for categorising developments, is in my judgment, entirely apt in the present case, and is reinforced by the striking similarity between the enumerated “scheduled activities” contained in Schedule 1 to the PEO Act and the enumerated categories or descriptions of “designated development” contained in the Environmental Planning and Assessment Regulation 1994, Schedule 3 (now repealed and re-enacted in the Environmental Planning and Assessment Regulation 2000).

110. Accordingly and for all the foregoing reasons, I hold that it is that identified activity (ie the Goldmine established on Mining Lease 1386) that is the relevant activity that is “authorised or controlled by the Licence” for the purposes of the PEO Act, s 58(6).

(iii) The Activity authorised or controlled by the Licence as varied

111. The importance of this last-mentioned conclusion is that the identified activity, namely the Gold Mine at premises comprising Mining Lease 1386, remains the same activity that is authorised by the Licence Variation for the purposes of s 58(6). In other words, the Licence Variation does not change the “activity that is authorised or controlled by” the Licence, although as I have earlier noted, it does increase from five to eight the number of authorised discharge points from which polluted waters may be discharged, and it authorises, subject to environmental criteria, the spray irrigation to land of treated wastewaters generated by the Gold Mine.

112. However, this conclusion does not mean that the same activity, authorised or controlled by the Licence, must necessarily have the same environmental impacts in the twin contexts of the Licence and the Licence Variation. Rather, it is necessary to examine the terms and conditions of the Licence and the Licence Variation in order to ascertain what is the environmental impact of the activity that is respectively authorised or controlled by (i) the Licence and (ii) the Licence Variation (meaning the Licence, as varied). In so ascertaining the environmental impact of the authorised or controlled activity, it is the impact of the activity undertaken in accordance with the terms and conditions of the Licence and the Licence Variation that must be considered as being the relevantly “authorised or controlled activity” for the purpose of the PEO Act s 58(6)(a).

113. This last-mentioned conclusion may require some little elaboration because in some statutory contexts it has been held that the “environmental impact of a proposed development or activity” must be considered without regard to any proposed mitigating or ameliorating conditions. Thus, in a case relied upon by the Applicant, Drummoyne Municipal Council v Maritime Services Board (1991) 72LGERA 186, the statutory context was the duty imposed by s 112(1) of the EP&A Act upon a determining authority not to carry out an activity or to grant approval in relation to that activity “that is likely to significantly affect the environment” unless it has obtained and examined an environmental impact statement in respect of that activity. Faced with evidence that the determining authority had concluded that the proposed activity was likely to significantly affect the environment, but that if certain conditions modifying the proposal were imposed, the proposal would not be likely to significantly affect the environment (see at 192), Stein J held at 192:

A number of comments may be made on the conclusions of the officer. First, it is the activity the subject of the application for approval which needs to be examined in the application of s 111 and s 112, and not the activity as it may be modified by the imposition of conditions by the determining authority.

……

In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation. One must have regard to the opening words of s 111: For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, … In my view an application for permission or approval to carry out an activity is either likely to significantly affect the environment or it is not.

114. The Maritime Services Board case was followed by the Chief Judge in Byron Shire Businesses for the Future Inc v Byron Council (1994) 84LGERA 434 in the context of the statutory obligation imposed the EP&A Act, s 77(3)(d1) that a development application in respect of a development which “is likely to significantly affect the environment of endangered fauna” be accompanied by a fauna impact statement, where the Chief Judge held at 446:

It was not possible to determine whether the development was likely to significantly affect he environment of the Comb crested Jacana merely by imposing a condition of consent that might mitigate that effect.

115. It is apparent from both these cases that the Court considered that the statutory duty or obligation applicable in each case would be significantly defeated or frustrated if the “threshold question” whether the proposed activity or development “is likely to significantly affect the environment” etc could be answered by considering the ameliorating effect of proposed modifications to the proposed activity or development, that might be imposed as conditions of the requisite approval or development consent.

116. However, the approach adopted in the Maritime Services Board case and the Byron Shire Businesses case was not applied by this Court in two later decisions, involving slightly different statutory contexts. In Smyth v Nambucca Shire Council (1999) 105 LGERA 65, the statutory context was the duty imposed by the EP&A Act, s 5A to take into account specified factors “in deciding whether there is likely to be a significant effect or threatened species…” etc and the question for decision by the Court was whether ameliorative measures that were included in a proposed development should be considered. Lloyd J held at 69 that the fulfilment of the statutory duty of answering the relevant statutory question “can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of the development”.

329. In these circumstances, I am unable to accept the version of Condition 102 that is suggested by Exhibit F/1. The First to Fourth Respondents have not relied upon it in their sustained dealings with the Department of Mineral Resources and the other public authorities (including the EPA) since it was announced in September 1999 that the Gold Mine would cease production and approval was sought for the Mine to be placed on a “care and maintenance contingency basis”.

330. More importantly, Mr Lee, in his evidence, accepts the current relevance of Condition 102 in its original form (being the form that I have recited in par 44).

331. In my judgment, the evidence adduced by the First to Fourth Respondents demonstrates that for a time late in 1999 and in 2000, the storm water capacity of the dams located on the Mine site fell below the required capacity.

332. This fact was frankly conceded by the First to Fourth Respondents in their representations to the Department of Mineral Resources for its approval of the six month trial irrigation proposal to alleviate what was seen to be an emergency situation in the light of the experience of higher than median rainfall at the Mine site during the wet season of 1999 and in the light of the recent fresh calculations of water balance at the Mine site which had revealed earlier predictions had significantly underestimated the volume of rainfall and of stormwater events.

333. Accordingly, I am satisfied, even on the First to Fourth Respondent’s own evidence, that there was a relevant breach of Condition 102 at some times in the past.

334. This brings me to consider the two further matters essential to be established in order to enliven the Court’s jurisdiction—namely whether such a breach relevantly constitutes a contravention of the Mining Act, s 374A(1) and whether the breach has caused or is likely to cause “harm to the environment” within the meaning of the PEO Act, s 253.

335. As to s 374A, I have earlier noted the First to Fourth Respondent’s submission that the Applicant has the onus of establishing that the breach occurred “without excuse”.

336. But irrespective of where the onus of proof on this issue lies, the First to Fourth Respondents submit that as a “reasonable excuse” has been shown to exist in that (according to par 20 of Mr Lee’s affidavit) there was an “unexpected accumulation of excess process water in the storm water dam caused by a higher than normal rainfall at the Mine site during 1999”.

337. I take it that it was the existence of such an accumulation of excess process waters on the site which materially diminished the stormwater capacity of the dams located on the Mine site so that the absolute capacity required by condition 102 was not maintained. Even if, as I am inclined to think, that those physical conditions did not in themselves constitute “a reasonable excuse” for failing to maintain the absolute storage capacity required by condition 102,. it has not been established that “harm to the environment” was relevantly caused by virtue of the breach of Condition 102. This want of proof carries the consequence that the breach is beyond the Court’s jurisdiction as conferred by the PEO Act, s 253.

338. Since there was no evidence of continuing breach of Condition 102 at the time of hearing (the evidence of breach having been confined to the earlier periods I have mentioned), the extended concept in the PEO Act, s 253 of “likely to cause environmental harm” is not relevant in the present case.

339. In these circumstances, I am driven to conclude that the breach of Condition 102, though established, is not within the Court’s jurisdiction.

340. Even if, contrary to my conclusion, the Court possessed jurisdiction in respect of the breach, in the absence of evidence of continuing breach or likely harm to the environment, it is difficult to appreciate what remedy the Court could grant within the power conferred by s 253(4). In this respect, a declaration of a past breach of Condition 102 (without any continuing consequences) would appear to be wholly lacking in utility, even assuming that solely declaratory relief, is within the remedy power conferred by s 253(4).

341. For all the foregoing reasons, I find that the Applicant has failed to establish any entitlement to relief in respect of any or all of its allegations of breaches of conditions of Mining Lease 1386.

I. DISCRETIONARY CONSIDERATIONS

342. Since I have held that the Applicant has failed to establish any relevant breaches of the law that have been alleged, I do not think it necessary for me to consider the discretionary matters raised by the First to Fourth Respondents in defence of the Applicant’s claims, other than to say that I have not been persuaded that, absent the authorisation by the Licence Variation, the First to Fourth Respondents would nonetheless be entitled to undertake the spray irrigation activity.

343. As I have earlier mentioned, that activity apparently has not received development consent under the EP&A Act, presumably because the First to Fourth Respondents rely upon the Mining Act 1992, s 74. However, whether that provision extends to the spray irrigation activity has not been considered in the present case and I express no view on the question.

J. THE APPLICANT’S MOTION TO RE-OPEN ITS CASE

344. As previously noted (see par 19), the Applicant, by Motion filed 16 January 2001 sought leave to reopen his case for the purpose of allowing him to adduce evidence that the Fourth Respondent in carrying out the spray irrigation activity had breached relevant conditions of the Licence Variation.

345. Additionally, the Motion sought an interim injunction against the First to Fourth Respondents’ restraining them from carrying out any activity pursuant to the Licence Variation.

346. The relief claimed in the Applicant’s Motion was opposed by all Respondents. In particular, they vigorously opposed the reopening of the case to allow the Applicant to conduct an entirely different case from that waged in the proceedings, namely to now allege breach of conditions of the Licence Variation where the Applicant’s whole case in the concluded hearing, had been that the Licence Variation was invalid.

347. In my judgment, it is far too late in the day to allow the Applicant to reopen his case to allege a breach of the Conditions of Licence Variation. If there has been a breach, fresh proceedings can be taken in respect thereof.

348. Likewise, it is also far too late to entertain the Applicant’s claim to interim injunction since the six month trial of the spray irrigation activity has now expired (assuming that the trial began soon after I had discharged from 25 August 2000 the interim injunction that I had granted earlier in the proceedings).

349. In the course of argument on the Applicant’s Motion, an entirely different tack was taken by the Applicant. He said that I would allow the reopening in order to allow the Applicant to adduce evidence of the actual environmental impact of the spray irrigation activity, which would be preferable to the evidence adduced at the trial of estimated or predictable environmental impact.

350. Again, the Respondents vigorously opposed the application, claiming that the evidence would not be relevant to the issue posed by the PEO Act, s 58(6) because that issue required assessment of the environmental impact of the spray irrigation activity authorised by the Licence Variation ie carried out in accordance with the conditions imposed on the Licence Variation.

351. Although there is much force in the Respondent’s submission, I am prepared to assume that the evidence sought to be led by the Applicant has potential relevance to be received in accordance with the well known dictum that “where facts are available they are to be preferred to prophecies”.

352. However, as was pointed out by Hutley JA in Sinclair v Graham (1984) 2 NSWLR 253, that dictum has to be applied in the light of the need to ensure finality of litigation.

353. In the present case, where the question of environmental impacts of the licensed spray irrigation was the subject of extensive expert evidence and where the statutory provision (the PEO Act, s 58(6)) specifically required an assessment of the prospective environmental impacts of the approved activity, no good or compelling purpose would be served by entertaining evidence as to the actual environmental impact of the spray irrigation activity (particularly in circumstances where the party wishing to reopen the case to adduce that evidence is also alleging that the spray irrigation activity has been undertaken in breach of the relevant conditions of the Licence Variation, which would inevitably open up a wider enquiry).

354. Accordingly, as a matter of discretion, I must refuse all of the relief claimed in the Applicant’s Motion.

K. CONCLUSIONS AND ORDERS

355. For all the foregoing reasons, I make the following orders—
1. The Applicant’s Motion filed 16 January 2001 for leave to reopen his case is dismissed.
2. The relief claimed in the Applicant’s aforesaid Motion is refused.
3. The Applicant’s Class 4 application is dismissed.
4. The question of costs is reserved.

ANNEXURE “B”

ISSUE ENVIRONMENTAL CONCERN FOLLOW UP ACTION DECISION RESOLUTION/ACTION

Residual cyanide levels in irrigation water Possible toxicity in the environment I requested further advice from TGM regarding the characteristics of residual cyanide in the irrigation water (Exhibit DD-15).
I received advice (Exhibit DD-23, Pg 7, para 1) that analysis of samples taken from the raw water pond indicated no detectable free or WAD cyanide and average levels of total cyanide of 0.023 mg/l in stable cyano-complex with cobalt. I requested and received advice from EPA Science regarding toxicity of cyanide. I noted that the ANZECC guideline to protect aquatic ecosystems is 0.005 mg/l free cyanide (Exhibit DD-17).
I noted advice regarding possible natural sources of cyanide in environment (Exhibit DD-17) and that analysis by TGM (Exhibit DD-23, Pg11. Para 6) of leachate from soil samples indicated levels of total and WAD cyanide.
I concluded that the very low levels of stable cyanide in irrigation water were not a significant threat to environment. I concluded that the guiding licence commitment of no cyanide from premise was maintained.
I included a condition in the Variation that prohibited irrigation that caused runoff or ponding in the forest area.
I ensured that advanced irrigation practices were included in the proposals. I ensured that the monitoring requirements of the Variation for surface and groundwater included analysis for all forms of cyanide.
I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.

Treated wastewater in raw water dam Possible overflows from the raw water and to surface waters and leakage to groundwater I checked “as built” details for Raw Water Dam.
I confirmed that the raw water dam has single HDPE liner (Exhibit DD-5a).
I reviewed the analysis of the quality of water transferred and stored in Raw Water Dam (Exhibit DD-23, Pg 6).
I noted the direction from Dept of Mineral Resources on 22 March 2000 to Ross Mining to transfer water from the Storm Water Dam to the Raw Water Dam (Exhibit DD-14a).
I noted that TGM had not breached any condition of the Licence.
I was satisfied that transfer of the treated stormwater to the raw water pond was the best environmental outcome.
I concluded that the low levels of residual elements in the water presented no significant risk to the environment.
I ensured that the discharge conditions for the Raw Water Dam remained in force in the Licence.
I concluded that no further action was required.
I concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.

Impacts on threatened species Risks to threatened species populations or ecological communities or habitats. I noted the following reports and assessments:
· Greenloaning Biostudies Pty Ltd, s5A Assessment of impacts of the trial irrigation Area on Flora and Fauna, March 2000 (Exhibit DD-14);
· Dept of Mineral Resources “Environmental Impact Assessment Report” for the Pt 5, EP&A Act development application to grant the Mining Lease Applications No’s 4 and 5 Inverell (ML 1386) (Exhibit DD-39a);
· Decision of Minister for Mineral Resources to grant Mining Lease Application 4 & 5 Inverell and conditions of Authority for ML 1386 especially noting the “special conditions” included in the Mining lease in regard to fauna & flora (Exhibit DD-39a, “Decision of the Minister for Mineral Resources”);
· NPWS Director General’s Recommendations Report for the proposed Poverty Point Timbarra Gold Mining Project to Minister for the Environment regarding the Minister for Mineral’s decision to grant the Mining Lease Applications Nos’ 4 and 5 Inverell (Exhibit DD-39a, Appendix No. 4);
· Threatened Species Management Plan, Timbarra Gold Project (Exhibit DD-39b, Appendix H);
· Timbarra Gold Project, Mine Lease Extension, Species Impact Statement, March 1999ERM Mitchell McCotter Pty Ltd (Exhibit DD-39).
I noted that NPWS determined in their recommendations to the Minister for the Environment that the Fauna Impact Statement prepared for the Timbarra Gold Mining Project (Pt 5, EP&A Act development application to grant the Mining Lease Applications Nos’ 4 and 5 Inverell) was considered a Species Impact Statement under the transitional provisions for the Threatened Species Conservation Act (1995) and the Threatened Species Conservation (Savings and transitional) regulation 1996 (Exhibit DD-39a, Appendix No.4, Pg2).
I noted the details proposed for irrigation operations (eg irrigation scheduling, monitoring of soil moisture) (Exhibit DD-10, Pg 10).
I noted irrigation would be scheduled to ensure it did not cause runoff from the proposed irrigation in the forest area (Exhibit DD-9, Pg 5).
I noted NPWS advice in their letter to Dept of Mineral Resources dated 5 April 2000 (Exhibit DD-18). NPWS raised no concerns in regard to threatened species impacts from the proposal. NPWS did indicate a preference for irrigation within cells 11-20 and that the trial be for 4ha with a possibility of extension provided Dept of Mineral resources was satisfied with monitoring results.
I was aware that threatened species monitoring program for the mine included frogs.
I was aware that the frog monitoring sites included sites downstream of the proposed irrigation areas.
I noted the details of the vegetation survey program for the forest irrigation area (Exhibit DD-32, Pg 7).
I concluded on the basis of the material I reviewed, that the variation would have no significant effect on threatened species, populations or ecological communities or their habitats.
I ensured that extensive monitoring and reporting of soils, vegetation, surface and gorundwaters would be included in the trial.
I ensured t hat benchmark groundwater and soils characteristics were analysed before the trial.
I supported NPWS advice that the monitoring frequency for the Threatened Species Management Plan would continue at the mining site.
I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.

Elevated levels of total dissolved solids and nitrogen in irrigation water Possible impacts on flora & fauna.
Possible impacts on soils and the quality of surface and ground waters.
Further analysis of irrigation water was requested and carried out (Exhibit DD-15)
I requested characterisation and benchmarking of soils, surface and groundwater (Exhibit DD-15).
I requested and received advice from EPA Waters and Catchments (Exhibit DD-14).
I reviewed soils consultants reports, especially in regard to effects of elevated salts and nitrogen leaching to groundwater in the cells 11-20 area and nitrogen cycling in the forest areas (Exhibits DD-9, DD-10, DD-11, DD-11a, DD-13, DD-14, DD-19, DD-22, DD-23, DD-27.
I referred to existing ANZECC water quality guidelines for protection of aquatic ecosystems and agricultural water use (Exhibit DD-40a).
I reviewed advice contained in consultant’s reports for the proposals especially the Landloch Report (Exhibit DD-10), Dobos & Ass reports (Exhibits DD-11, DD-11a), and First and Second Proposals (Exhibits DD-9, DD-23).
I reviewed pollution control proposals for the cell 11-20 area (Exhibit DD-35).
I requested investigations to optimise the catchment for the cell 11-20 area and to investigate practical measures to optimise possible re-use of nitrogen in the cell11-20 area.
I noted proposals for irrigation operations and monitoring of soils, vegetation, surface and groundwater to complement existing monitoring programs (Exhibit DD-27).
I requested a review of irrigation practices to maximise the opportunity for evaporation and release of nitrogen to the atmosphere.
I noted the trial was for six months involving a target of 6ML per month (Exhibit DD-9, Pgs 1 & 3).
I noted that, assuming an average application of 6ML per month over the total area of 18.1 ha, the proposals involved irrigation of approximately 2 ML per hectare.
I concluded that nitrogen and total dissolved solids might leach to groundwaters.
I concluded that runoff containing elevated levels of total dissolved solids and nitrogen might be recorded at the discharge point to the Cell 11 Dam.
I ensured that extensive monitoring and reporting of soils, vegetation, surface and groundwaters would be included in the trial. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. In ensured that existing monitoring programs including stream condition surveys would continue. I ensured that conditions of the Variation placed limits on the quality of water to be irrigated and the quality of water that could be discharged from the Cell 11 Dam.
I ensured that discharges would not be directly to waters.
I ensured that conditions of the licence variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas. I concluded that even though levels of total dissolved solids and nitrogen might be elevated for some periods during the trial this issue would not cause a significant increase in environmental impact of the activity controlled or authorised by the Licence.

Elevated levels of total suspended solids Possible impacts on flora & fauna. I requested and receive investigation reports from TGM for the unused heap leach cells 11-20 area regarding water balance studies including the irrigation trial, storm runoff calculations and investigation of sediment dam sizes at cell 11 (Exhibits DD-19, DD-22, DD-23, DD-34, DD-35).
I requested investigations to optimise the catchment for the cell11-20 area and practical measures to optimise possible treated water re-use in the cell11-20 area and minimise sediment run-off.
I requested investigation of alternative runoff arrangements for the cell 11-20 area attempting to spread the runofff from the area (Exhibit DD-24).
I concluded that elevated levels of total suspended solids might be recorded at the discharge point for the Cell 11 Dam.
I was aware that prior to that time monitoring of total suspended solids and stream condition downstream of other sediment dams had indicated no significant impact in streams likely to be affected by activities on the mine site from sediment.
I ensured that the environment protection standard established in the Licence for sedimentation dams discharging directly to waters was maintained for discharge point number 007, the Site 3 Dam.
I concluded that the standard for discharge from the Cell 11 Dam (discharge point number 006) could be different as discharge was not direct to waters and that it was not practical to construct a storage to meet the 1:20 year 72 hour storm criteria.
I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use.
I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding.
I ensured that strict monitoring programs would continue.
I concluded that even though levels of total suspended solids might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence.

Elevated levels of metals in irrigation water Possible impacts on flora & fauna.
Possible impacts on soils and the quality of surface and ground water.
I requested further analysis of filtered and unfiltered water samples to ensure that the total characteristics of the water were known (Exhibit DD-15).
I noted that the ANZEC water quality guidelines for metal concentrations to protect aquatic ecosystems and for agricultural use (Exhibit DD-40a).
I reviewed the consultant’s reports on the First and Second Proposal (Exhibits DD-9, DD10, DD-11, DD-11a, DD13, DD-22, DD-23, DD-27, DD-34, DD-35) in regard to the fate metals in the irrigation water.
I concluded that slightly elevated levels of aluminium (ie above ANZECC guidelines) might be recorded at the discharge point of Cell 11 Dam and some dissolved ions may leach to groundwater.
I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use.
I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding.
I ensured that benchmark groundwater and soils characteristics were analysed before the trial.
I ensured that strict monitoring programs would continue.
I concluded that even though levels of aluminium and dissolved ions may be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence.

Elevated levels of molybdenum in irrigation water Possible fate in the environment and any environmental impacts. I researched material in the current and draft ANZECC water quality guidelines on molybdenum for protection of aquatic ecosystems and agricultural use (Exhibit DD-40a).
I noted that the levels set in the ANZECC guidelines were set to protect grazing livestock and that a cumulative contaminant loading limit was not set in the draft guidelines due to lack of soils data and toxicity benchmarks.
I note that there is no current ANZECC guideline for molybdenum to protect aquatic ecosystems but the new draft guidelines indicate a trigger value of 0.006 mg/l.
I requested characterisation of the soils in the irrigation areas for molybdenum (Exhibit DD-15).
I noted that the agricultural use ANZECC guideline was based on levels of 10mg/kg and irrigation for at least 20 years (Exhibit DD-40a).
I concluded that slightly elevated levels (ie above ANZECC guidelines) of molybdenum might be recorded at the discharge point of the Cell 11 Dam.
I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use.
I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding.
I ensured that benchmark groundwater and soils characteristics were analysed before the trial.
I ensured that strict monitoring programs would continue.
I concluded that even though levels of molybdenum might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.

CITATION:	Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55
PARTIES:	APPLICANT: Donnelly RESPONDENTS: 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 118D
CASES 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 133
DATES 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:	03/23/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Oshlack, agent SOLICITORS N/A 1ST TO FOURTH RESPONDENTS Mr Craig QC 5TH RESPONDENT Mr Leggatt, Barrister SOLICITORS FIRST TO FOURTH RESPONDENTS Phillips Fox FIFTH RESPONDENT Solicitor Environment Protection Authority

ISSUE	ENVIRONMENTAL CONCERN	FOLLOW UP ACTION	DECISION RESOLUTION/ACTION
Residual cyanide levels in irrigation water	Possible toxicity in the environment	I requested further advice from TGM regarding the characteristics of residual cyanide in the irrigation water (Exhibit DD-15). I received advice (Exhibit DD-23, Pg 7, para 1) that analysis of samples taken from the raw water pond indicated no detectable free or WAD cyanide and average levels of total cyanide of 0.023 mg/l in stable cyano-complex with cobalt. I requested and received advice from EPA Science regarding toxicity of cyanide. I noted that the ANZECC guideline to protect aquatic ecosystems is 0.005 mg/l free cyanide (Exhibit DD-17). I noted advice regarding possible natural sources of cyanide in environment (Exhibit DD-17) and that analysis by TGM (Exhibit DD-23, Pg11. Para 6) of leachate from soil samples indicated levels of total and WAD cyanide.	I concluded that the very low levels of stable cyanide in irrigation water were not a significant threat to environment. I concluded that the guiding licence commitment of no cyanide from premise was maintained. I included a condition in the Variation that prohibited irrigation that caused runoff or ponding in the forest area. I ensured that advanced irrigation practices were included in the proposals. I ensured that the monitoring requirements of the Variation for surface and groundwater included analysis for all forms of cyanide. I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.
Treated wastewater in raw water dam	Possible overflows from the raw water and to surface waters and leakage to groundwater	I checked “as built” details for Raw Water Dam. I confirmed that the raw water dam has single HDPE liner (Exhibit DD-5a). I reviewed the analysis of the quality of water transferred and stored in Raw Water Dam (Exhibit DD-23, Pg 6). I noted the direction from Dept of Mineral Resources on 22 March 2000 to Ross Mining to transfer water from the Storm Water Dam to the Raw Water Dam (Exhibit DD-14a). I noted that TGM had not breached any condition of the Licence.	I was satisfied that transfer of the treated stormwater to the raw water pond was the best environmental outcome. I concluded that the low levels of residual elements in the water presented no significant risk to the environment. I ensured that the discharge conditions for the Raw Water Dam remained in force in the Licence. I concluded that no further action was required. I concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.
Impacts on threatened species	Risks to threatened species populations or ecological communities or habitats.	I noted the following reports and assessments: · Greenloaning Biostudies Pty Ltd, s5A Assessment of impacts of the trial irrigation Area on Flora and Fauna, March 2000 (Exhibit DD-14); · Dept of Mineral Resources “Environmental Impact Assessment Report” for the Pt 5, EP&A Act development application to grant the Mining Lease Applications No’s 4 and 5 Inverell (ML 1386) (Exhibit DD-39a); · Decision of Minister for Mineral Resources to grant Mining Lease Application 4 & 5 Inverell and conditions of Authority for ML 1386 especially noting the “special conditions” included in the Mining lease in regard to fauna & flora (Exhibit DD-39a, “Decision of the Minister for Mineral Resources”); · NPWS Director General’s Recommendations Report for the proposed Poverty Point Timbarra Gold Mining Project to Minister for the Environment regarding the Minister for Mineral’s decision to grant the Mining Lease Applications Nos’ 4 and 5 Inverell (Exhibit DD-39a, Appendix No. 4); · Threatened Species Management Plan, Timbarra Gold Project (Exhibit DD-39b, Appendix H); · Timbarra Gold Project, Mine Lease Extension, Species Impact Statement, March 1999ERM Mitchell McCotter Pty Ltd (Exhibit DD-39). I noted that NPWS determined in their recommendations to the Minister for the Environment that the Fauna Impact Statement prepared for the Timbarra Gold Mining Project (Pt 5, EP&A Act development application to grant the Mining Lease Applications Nos’ 4 and 5 Inverell) was considered a Species Impact Statement under the transitional provisions for the Threatened Species Conservation Act (1995) and the Threatened Species Conservation (Savings and transitional) regulation 1996 (Exhibit DD-39a, Appendix No.4, Pg2). I noted the details proposed for irrigation operations (eg irrigation scheduling, monitoring of soil moisture) (Exhibit DD-10, Pg 10). I noted irrigation would be scheduled to ensure it did not cause runoff from the proposed irrigation in the forest area (Exhibit DD-9, Pg 5). I noted NPWS advice in their letter to Dept of Mineral Resources dated 5 April 2000 (Exhibit DD-18). NPWS raised no concerns in regard to threatened species impacts from the proposal. NPWS did indicate a preference for irrigation within cells 11-20 and that the trial be for 4ha with a possibility of extension provided Dept of Mineral resources was satisfied with monitoring results. I was aware that threatened species monitoring program for the mine included frogs. I was aware that the frog monitoring sites included sites downstream of the proposed irrigation areas. I noted the details of the vegetation survey program for the forest irrigation area (Exhibit DD-32, Pg 7).	I concluded on the basis of the material I reviewed, that the variation would have no significant effect on threatened species, populations or ecological communities or their habitats. I ensured that extensive monitoring and reporting of soils, vegetation, surface and gorundwaters would be included in the trial. I ensured t hat benchmark groundwater and soils characteristics were analysed before the trial. I supported NPWS advice that the monitoring frequency for the Threatened Species Management Plan would continue at the mining site. I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.
Elevated levels of total dissolved solids and nitrogen in irrigation water	Possible impacts on flora & fauna. Possible impacts on soils and the quality of surface and ground waters.	Further analysis of irrigation water was requested and carried out (Exhibit DD-15) I requested characterisation and benchmarking of soils, surface and groundwater (Exhibit DD-15). I requested and received advice from EPA Waters and Catchments (Exhibit DD-14). I reviewed soils consultants reports, especially in regard to effects of elevated salts and nitrogen leaching to groundwater in the cells 11-20 area and nitrogen cycling in the forest areas (Exhibits DD-9, DD-10, DD-11, DD-11a, DD-13, DD-14, DD-19, DD-22, DD-23, DD-27. I referred to existing ANZECC water quality guidelines for protection of aquatic ecosystems and agricultural water use (Exhibit DD-40a). I reviewed advice contained in consultant’s reports for the proposals especially the Landloch Report (Exhibit DD-10), Dobos & Ass reports (Exhibits DD-11, DD-11a), and First and Second Proposals (Exhibits DD-9, DD-23). I reviewed pollution control proposals for the cell 11-20 area (Exhibit DD-35). I requested investigations to optimise the catchment for the cell 11-20 area and to investigate practical measures to optimise possible re-use of nitrogen in the cell11-20 area. I noted proposals for irrigation operations and monitoring of soils, vegetation, surface and groundwater to complement existing monitoring programs (Exhibit DD-27). I requested a review of irrigation practices to maximise the opportunity for evaporation and release of nitrogen to the atmosphere. I noted the trial was for six months involving a target of 6ML per month (Exhibit DD-9, Pgs 1 & 3). I noted that, assuming an average application of 6ML per month over the total area of 18.1 ha, the proposals involved irrigation of approximately 2 ML per hectare.	I concluded that nitrogen and total dissolved solids might leach to groundwaters. I concluded that runoff containing elevated levels of total dissolved solids and nitrogen might be recorded at the discharge point to the Cell 11 Dam. I ensured that extensive monitoring and reporting of soils, vegetation, surface and groundwaters would be included in the trial. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. In ensured that existing monitoring programs including stream condition surveys would continue. I ensured that conditions of the Variation placed limits on the quality of water to be irrigated and the quality of water that could be discharged from the Cell 11 Dam. I ensured that discharges would not be directly to waters. I ensured that conditions of the licence variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas. I concluded that even though levels of total dissolved solids and nitrogen might be elevated for some periods during the trial this issue would not cause a significant increase in environmental impact of the activity controlled or authorised by the Licence.
Elevated levels of total suspended solids	Possible impacts on flora & fauna.	I requested and receive investigation reports from TGM for the unused heap leach cells 11-20 area regarding water balance studies including the irrigation trial, storm runoff calculations and investigation of sediment dam sizes at cell 11 (Exhibits DD-19, DD-22, DD-23, DD-34, DD-35). I requested investigations to optimise the catchment for the cell11-20 area and practical measures to optimise possible treated water re-use in the cell11-20 area and minimise sediment run-off. I requested investigation of alternative runoff arrangements for the cell 11-20 area attempting to spread the runofff from the area (Exhibit DD-24).	I concluded that elevated levels of total suspended solids might be recorded at the discharge point for the Cell 11 Dam. I was aware that prior to that time monitoring of total suspended solids and stream condition downstream of other sediment dams had indicated no significant impact in streams likely to be affected by activities on the mine site from sediment. I ensured that the environment protection standard established in the Licence for sedimentation dams discharging directly to waters was maintained for discharge point number 007, the Site 3 Dam. I concluded that the standard for discharge from the Cell 11 Dam (discharge point number 006) could be different as discharge was not direct to waters and that it was not practical to construct a storage to meet the 1:20 year 72 hour storm criteria. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that strict monitoring programs would continue. I concluded that even though levels of total suspended solids might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence.
Elevated levels of metals in irrigation water	Possible impacts on flora & fauna. Possible impacts on soils and the quality of surface and ground water.	I requested further analysis of filtered and unfiltered water samples to ensure that the total characteristics of the water were known (Exhibit DD-15). I noted that the ANZEC water quality guidelines for metal concentrations to protect aquatic ecosystems and for agricultural use (Exhibit DD-40a). I reviewed the consultant’s reports on the First and Second Proposal (Exhibits DD-9, DD10, DD-11, DD-11a, DD13, DD-22, DD-23, DD-27, DD-34, DD-35) in regard to the fate metals in the irrigation water.	I concluded that slightly elevated levels of aluminium (ie above ANZECC guidelines) might be recorded at the discharge point of Cell 11 Dam and some dissolved ions may leach to groundwater. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. I ensured that strict monitoring programs would continue. I concluded that even though levels of aluminium and dissolved ions may be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence.
Elevated levels of molybdenum in irrigation water	Possible fate in the environment and any environmental impacts.	I researched material in the current and draft ANZECC water quality guidelines on molybdenum for protection of aquatic ecosystems and agricultural use (Exhibit DD-40a). I noted that the levels set in the ANZECC guidelines were set to protect grazing livestock and that a cumulative contaminant loading limit was not set in the draft guidelines due to lack of soils data and toxicity benchmarks. I note that there is no current ANZECC guideline for molybdenum to protect aquatic ecosystems but the new draft guidelines indicate a trigger value of 0.006 mg/l. I requested characterisation of the soils in the irrigation areas for molybdenum (Exhibit DD-15). I noted that the agricultural use ANZECC guideline was based on levels of 10mg/kg and irrigation for at least 20 years (Exhibit DD-40a).	I concluded that slightly elevated levels (ie above ANZECC guidelines) of molybdenum might be recorded at the discharge point of the Cell 11 Dam. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. I ensured that strict monitoring programs would continue. I concluded that even though levels of molybdenum might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence.

[2001] NSWLEC 55

23/03/2001