Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd

The case of *Lester v NSW Minister for Planning and Ashton Coal Operations Pty Ltd* concerned a judicial review of a modification to a project approval. The appellant, Mr Lester, challenged the validity of the modification, arguing that the NSW Minister for Planning had failed to comply with a statutory requirement to make publicly available the request for modification and its accompanying documents. Ashton Coal Operations Pty Ltd was the proponent of the project. The matter was heard on appeal.

The central legal issues before the court were whether the documents submitted by Ashton Coal constituted a "request for modification" for the purposes of the relevant legislation, and whether the partial unavailability of these documents on the department's website amounted to sufficient compliance with the statutory obligation to make them publicly available. The court also considered whether a message indicating that further information might be requested could cure the deficiency in public availability, and whether non-compliance with this statutory requirement rendered the modification of approval invalid.

The Court of Appeal, comprising Tobias AJA, Young AJA, and Preston CJ of LEC, dismissed the appeal. The court reasoned that the submitted documents, despite some being inaccessible online, did comprise the request for modification. Crucially, the court held that the statutory requirement for public availability was not met by making only parts of the accompanying documents accessible, nor was it cured by a general notification that further information might be sought. The court concluded that the purpose of the legislation was not such that this specific non-compliance would automatically invalidate the modification of approval. Consequently, the appeal was dismissed, and the appellant was ordered to pay the costs of the respondents.