THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40099/98 LEC 40222/97
SPIGELMAN CJ MASON P MEAGHER JA
Tuesday 9 February 1999
TIMBARRA PROTECTION COALITION INC v ROSS MINING NL & ORS
The Respondent was granted a development consent by the Tenterfield Shire Council pursuant to the Environmental Planning and Assessment Act 1979 (EPA Act). Section 77(3)(d1) of the EPA Act requires a Species Impact Statement (SIS) to be submitted with an application for development consent if, inter alia, the development is “likely to significantly affect threatened species”. The respondent did not submit a SIS. Talbot J who heard the Class 4 proceedings in the Land and Environment Court held that the decision of the Council to accept the application without a SIS was not reviewable as it was not an error of jurisdictional fact and, accordingly, refused to admit evidence on the issue of “likely to significantly affect threatened species”.
Section 77(3)(d) of the Act requires an Environmental Impact Statement to be submitted if a development is a “designated development” within the meaning of Pt 2 of Schedule 3 to the Environmental Planning and Assessment Regulation 1994 (EPA Regulation). Talbot J held that the development was not “designated development”.
Held, allowing the appeal:
(Per Spigelman CJ; Mason P and Meagher JA concurring)
1 The issue of “likely to significantly affect threatened species” involves a jurisdictional fact. Whether a particular fact is a jurisdictional fact depends on the proper construction of the factual reference in the particular statutory formulation. A fact will be a jurisdictional fact if it must exist in fact and the legislature intends that the absence or presence of the fact will invalidate action under the statute. Factors relevant for construction of factual references discussed. Helman v Byron Shire Council (1995) 87 LGERA 349; Ex parte Redgrave; Re Bennett (1946) 46 SR (NSW) 122, 125; Ex…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8
Case
[1999] NSWCA 8
Decision Date
CaseChat Overview and Summary
Timbarra Protection Coalition Inc (the appellant) appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision of the Land and Environment Court concerning the validity of a mining project. The dispute centred on whether a particular factual condition, referred to in section 77(3)(d1) of the *Environmental Planning and Assessment Act 1979* (NSW), constituted a "jurisdictional fact" for the purposes of the Act.
The Court of Appeal was required to determine the correct interpretation of section 77(3)(d1) of the *Environmental Planning and Assessment Act 1979* and, in particular, whether the satisfaction of the condition stipulated therein was a prerequisite to the exercise of the Minister's power to grant approval for the mining project. This involved considering the nature of "jurisdictional facts" in administrative law and how they operate to limit or define the scope of statutory powers.
The Court reasoned that the language of section 77(3)(d1) indicated that the condition was intended to be a jurisdictional fact. Spigelman CJ, Mason P and Meagher JA held that if the condition was not satisfied, the Minister lacked the power to grant the approval. The Court applied principles of statutory interpretation to ascertain the legislative intent, concluding that the condition was a threshold requirement that had to be met before the Minister could validly exercise their discretion.
Consequently, the Court of Appeal allowed the appeal, set aside the decision of the Land and Environment Court, and remitted the matter to that court for redetermination in accordance with the Court of Appeal's reasons. The respondent was ordered to pay the costs of the appellant in both the Court of Appeal and the Land and Environment Court.
Orders
Orders of the court
122 The orders I propose are:
1 Appeal allowed.
2 Remit the matter to the Land and Environment Court to be determined in accordance with these reasons.
3 The Respondent pay the costs of the Appellant in this Court and in the Land and Environment Court.THE SUPREME COURT