SERPENTINE-JARRAHDALE Ratepayers and Residents Association Inc v Minister for Mines
[2001] WASC 203
SERPENTINE-JARRAHDALE RATEPAYERS AND RESIDENTS ASSOCIATION INC -v- MINISTER FOR MINES [2001] WASC 203
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 203 | |
| 03/08/2001 | |||
| Case No: | CIV:2032/2000 | 10 JULY 2001 | |
| Coram: | WHITE AUJ | 10/07/01 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Declarations made by consent | ||
| A | |||
| PDF Version |
| Parties: | SERPENTINE-JARRAHDALE RATEPAYERS AND RESIDENTS ASSOCIATION INC MINISTER FOR MINES |
Catchwords: | Environmental Protection Act 1986 Obligations of decision-making authority when considering a matter likely to have a significant effect on the environment Applications for mining leases where Mining Warden reported that the mining proposal was one likely to have a significant effect on the environment Minister granting the applications without first referring the proposals to the Environment Protection Authority pursuant to s 38 of the Environmental Protection Act 1986 Declaration that the minister acted in excess of the power conferred upon him by the Mining Act 1978 in granting the Mining Leases and that the Mining Leases are invalid |
Legislation: | Environmental Protection Act 1986, s 38 Mining Act 1978 |
Case References: | Nil Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Allingham v Minsiter of Agriculture and Fisheries [1948] 1 KB 780 Atkins v Minister for Mines (1996) 15 WAR 226 City of Unley v Claude Neon Ltd [1983] 32 SASR 329 Crocker Consolidated Pty Ltd v Wille [1988] WAR 187 Evans (Koara People) v Western Australia (1997) 77 FCR 193 Levy v Farrell (1861) 1 W&W(E) 10 McBain v Clifton Shire Council [1996] Qd R 493 Mison v Randwick Municipal Corporation (1991) 23 NSWLR 731 Porject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Racecourse Co-operative Sugar Association Limited v Queensland (1996) 135 ALR 225 Re Lawrence; Ex parte Goldbar Holdings (1994) 11 WAR 549 Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343 Sambell v Cook [1962] VR 448 Turner v Owen (1990) 26 FCR 366 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
MINISTER FOR MINES
Defendant
Catchwords:
Environmental Protection Act 1986 - Obligations of decision-making authority when considering a matter likely to have a significant effect on the environment - Applications for mining leases where Mining Warden reported that the mining proposal was one likely to have a significant effect on the environment - Minister granting the applications without first referring the proposals to the Environment Protection Authority pursuant to s 38 of the Environmental Protection Act 1986 - Declaration that the minister acted in excess of the power conferred upon him by the Mining Act 1978 in granting the Mining Leases and that the Mining Leases are invalid
(Page 2)
Legislation:
Environmental Protection Act 1986, s 38
Mining Act 1978
Result:
Declarations made by consent
Category: A
Representation:
Counsel:
Plaintiff : Mr G M G McIntyre
Defendant : Mr G T W Tannin
Solicitors:
Plaintiff : Environmental Defender's Office of Western Australia (Inc)
Defendant : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Allingham v Minsiter of Agriculture and Fisheries [1948] 1 KB 780
Atkins v Minister for Mines (1996) 15 WAR 226
City of Unley v Claude Neon Ltd [1983] 32 SASR 329
Crocker Consolidated Pty Ltd v Wille [1988] WAR 187
Evans (Koara People) v Western Australia (1997) 77 FCR 193
Levy v Farrell (1861) 1 W&W(E) 10
McBain v Clifton Shire Council [1996] Qd R 493
Mison v Randwick Municipal Corporation (1991) 23 NSWLR 731
Porject Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
(Page 3)
Racecourse Co-operative Sugar Association Limited v Queensland (1996) 135 ALR 225
Re Lawrence; Ex parte Goldbar Holdings (1994) 11 WAR 549
Re Warden Calder; Ex parte Cable Sands (WA) Pty Ltd (1998) 20 WAR 343
Sambell v Cook [1962] VR 448
Turner v Owen (1990) 26 FCR 366
(Page 4)
1 WHITE AUJ: In this matter, the plaintiff claimed certain declaratory relief arising from the defendant's actions in relation to two mining lease applications lodged pursuant to s 74 of the Mining Act1978 ("the Mining Act") by Bruce Scott Maloney, John Leslie Baxter, Stephen Leslie Thomas, Graeme Bruce Prior and John Andrew Simpson ("the applicants"). The first such application, 70/729, was lodged on 18 November 1991 and the second application, 70/740, was lodged on 10 February 1992. The plaintiff lodged an objection to each application, pursuant to s 75 of the Mining Act.
2 The applicants lodged the applications for the purpose of enabling them to carry on exploration for minerals on the land the subject of the applications. The applications and the objections thereto were heard by Mining Warden Calder in Perth in March and April 1999 respectively.
3 On 8 July 1999, the Mining Warden published to the defendant his report and recommendations relating to the applications and objections, and, inter alia:
(a) found that the relevant mining proposal was one which was likely to have a significant effect on the environment;
(b) recommended that the Minister refer the applications to the Environmental Protection Authority pursuant to s 38 of the Environmental Protection Act1986 ("the Act");
(c) recommended that, subject to compliance with the provisions of the Act and the exclusion of certain areas applied for, the applications should be granted.
4 On or about 23 December 1999, the Minister granted the applications in their entirety, without first referring the applications or the proposals embodied therein to theEnvironmental Protection Authority pursuant to s 38 of theAct.
5 Section 38 (1)(a) of the Act provides in relevant part as follows:
"38 Referrals
(1) A proposal that appears likely, if implemented, to have a significant effect on the environment, …-
… shall, in the case of a proposal other than a proposal under an assessed scheme, be referred in writing to the Authority by a decision-making
(Page 5)
- authority as soon as the proposal comes to the notice of the decision-making authority; …"
6 The definitions of "decision-making authority" and "public authority" in s 3 of the Act, read together, indicate that the defendant's predecessor was the "decision-making authority" for the purposes of that section.
7 Accordingly, the defendant's act in granting the applications without reference to the Environmental Protection Authority, was contrary to the express requirement of s 38 of the Act.
8 There were other matters pleaded by the plaintiff, with which I do not need to deal.
9 The defendant, by counsel, has conceded that the Leases were invalidly granted on the ground identified in par 10 of the Statement of Claim. The defendant, in written submissions, which I accepted, went on to say:
"2. A referral of the proposal prior to the grant of the Leases was required in this particular case because of several unusual aspects of the applications for the Leases:
(a) The Warden made a recommendation to the former Minister as to whether or not the applications for the Leases should be granted. That recommendation brought to the former Minister's notice, not only an application for a grant of a mining tenement, but also a proposal to conduct dredge mining to extract mineral sands from the subject land (at page 9 of the Book of Agreed Documents ('AD')).
(b) The Warden's recommendation had identified, and brought to the former Minister's notice, a number of likely and significant effects of the proposal on the environment. The Warden expressly indicated to the former Minister that the proposal was one to which section 38(1)(a) of the EP Act applied (AD page 39).
(c) The Minister granted the leases subject to the condition that a plan of proposed operations be
(Page 6)
- referred to the EPA under section 38 of the EP Act before any developmental or productive mining commenced on the land. In imposing this condition the Minister implicitly recognised and accepted that the proposal was likely, if implemented, to have a significant effect on the environment, and so was a proposal to which section 38 applied.
- 3. The structure of Part IV of the EP Act, together with the provisions of section 6(1) of the Mining Act 1978, indicate that the effect the former Minister's failure to comply with section 38(1)(a) of the EP Act is, in those circumstances, to invalidate the subsequent purported grant of the Leases. This invalidating effect arises because there was a conscious refusal by the former Minister to refer to the EPA a proposal that he had recognised as likely, if implemented, to have a significant effect on the environment."
10 For these reasons, and by consent, I made the declarations sought by the plaintiff, namely:
(1) A declaration that the defendant acted in excess of the power conferred upon him by the Mining Act 1978 in granting Mining Leases 70/729 and 70/740; and
(2) A declaration that Mining Leases 70/729 and 70/740 are invalid.
11 I further ordered, by consent, that the plaintiff's costs should be paid by the defendant.
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