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

v

DELTA GOLD PTY LTD

First Respondent

ROSS MINING N.L.

Second Respondent

CAPRICORNIA PROSPECTING PTY LTD

Third Respondent

TIMBARRA GOLD MINES PTY LTD

Fourth Respondent

ENVIRONMENT PROTECTION AUTHORITY

Fifth Respondent

JUDGMENT

Bignold J:

A. INTRODUCTION

1. By his amended class 4 application filed on 12 July 2000, the Applicant, who is an authorised representative of the Wahlabul/Malerah Bandjalung Aboriginal Communities and has claimed, pursuant to the Native Title Act 1993 to be a traditional custodian of the land and waters covered by Mining Lease 1386 (upon which land a goldmine has in the past few years been established and operated by or on behalf of the First to Fourth Respondents but recently has been placed on a “care and maintenance” contingency basis) claims declaratory and injunctive relief against the Respondents as follows—
(i.) a declaration that the variation of licence granted on 23 June 2000 by the Fifth Respondent to the Fourth Respondent pursuant to the Protection of the Environment Operations Act 1997 (PEO Act) is null and void for failing to comply with s 58(6) of that Act;
(ii.) an injunction restraining the First, Second, Third and Fourth Respondents from carrying out activities pursuant to the Licence Variation;
(iii.) a mandatory injunction for the removal of…