Williams v Minister for Planning - [2009] NSWLEC 5

No judgment structure available for this case.

Set aside by Appeal: [2009] NSWCA 275
164 LGERA 204

Land and Environment Court

of New South Wales

CITATION: Williams v Minister for Planning [2009] NSWLEC 5
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Neville "Chappie" Williams
FIRST RESPONDENT:
NSW Minister for Planning
SECOND RESPONDENT:
NSW Director General for Planning
THIRD RESPONDENT:
Barrick Australia Ltd

FILE NUMBER(S): 41118 of 2008

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- whether request to modify development consent for a gold mine outside scope of s 75W Environmental Planning and Assessment Act 1979 - whether "modification" in s 75W permits radical transformation of terms of development consent - whether proposed changes constituted a radical transformation of terms of development consent - whether fraudulently misleading conduct by proponent in relation to the modification request - legal elements of fraud - whether Minister's decision under cl 8J(8) Environmental Planning and Assessment Regulation 2000 invalid because Minister failed to consider a relevant matter or because proposed period of mine operations exceeded terms of proponent's lease - whether, consequently, Director-General's decision to notify environmental assessment requirements in relation to modification request invalid - whether privative clause s 75X(4) applicable.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 5(a), 75B, 75D, 75F, 75J, 75V(1)(c), 75W, 75X(2), 75X(4), 96, 101, 119(1), Pt 3A, Pt 4
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Environmental Planning and Assessment Regulation 2000, cll 8G, 8J(8), 115, 283
Interpretation Act 1987, s 7
Local Government Act 1919, s 342AS
Mine Health and Safety Act 2004
Mining Act 1992, s 65(2)
Occupational Health and Safety Act 2000, s 93
State Environmental Planning Policy (Major Projects) 2005, cl 6

CASES CITED: Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876
Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337
Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229
Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54
Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321
Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364, (2000) 50 NSWLR 312
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, (2007) 154 LGERA 117
Currey v Sutherland Shire Council [2003] NSWCA 300, (2003) 129 LGERA 223
Enfield City Corporation v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135
Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, (2008) 249 ALR 398
Helman v Byron Shire Council (1995) 87 LGERA 349
Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40, (1988) 39 FCR 546
Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563
Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Lesnewski v Mosman Municipal Council [2005] NSWCA 99, (2005) 138 LGERA 207
McGovern v Ku-ring-gai Council [2008] NSWCA 209, (2008) 161 LGERA 170
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17, (2008) 245 ALR 501
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597
Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230
Scurr v Brisbane City Council [1973] HCA 39, (1973) 133 CLR 242
Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 1] [1981] HCA 59, (1981) 150 CLR 225
Sharples v Minister for Local Government [2008] NSWLEC 328
SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189
The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54, (1994) 181 CLR 404
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55
Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, (1999) 46 NSWLR 598
Walsh v Parramatta City Council [2007] NSWLEC 255, (2007) 161 LGERA 118
Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707

DATES OF HEARING: 17-19/12/2008

DATE OF JUDGMENT:
5 February 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr A Oshlack, agent
SOLICITORS
N/A
FIRST AND SECOND RESPONDENTS:
Mr M Leeming SC and Ms A Mitchelmore
SOLICITORS
Department of Planning
THIRD RESPONDENT:
Mr N Williams SC and Mr C Ireland
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 February 2009

41118 of 2008

WILLIAMS v MINISTER FOR PLANNING AND ORS
JUDGMENT

1 HIS HONOUR: The applicant claims that a request to modify the development consent for the Cowal Gold Mine is not a request for modification within the meaning of s 75W of the Environmental Planning and Assessment Act 1979 (EPA Act). The request (known as the E42 Modification Request) was made on 25 March 2008 by the third respondent, Barrick Australia Ltd (Barrick), to the first respondent, the Minister for Planning (Minister), but has not yet been determined. The applicant also challenges the validity of two decisions made by the Minister or the second respondent, the Director-General for Planning, relating to the E42 Modification Request:

(a) the Minister’s decision dated 12 March 2008 under cl 8J(8) of the Environmental Planning and Assessment Regulation 2000 ( EPA Regulation ) to treat the development consent as an approval for the purposes of s 75W ( Decision to Treat ); and

EARS Notification

2 The Cowal Gold Mine is located adjacent to Lake Cowal approximately 38 kilometres north-east of West Wyalong. The applicant, Mr Neville “Chappie” Williams, pleads that he is a Wiradjuri Traditional Owner and a native title claimant over the subject land in Federal Court proceedings. That is neither admitted by the respondents nor proved but does not bear on the substantive issues.

3 The applicant claims that:

(a) the Decision to Treat is invalid because the Minister mistakenly understood that the length of the proposed extension of the life of the mine operations was seven years when it fact it was 11 years;

(b) the Decision to Treat is invalid because the proposed period of mine operations exceeds the term of Barrick’s mining lease;

(c) the E42 Modification Request is beyond the scope of s 75W because it seeks to “radically alter” the development consent;

(d) the E42 Modification Request is beyond the scope of s 75W because Barrick fraudulently misled the Minister in connection with the documents lodged in support of it, by failing “to detail or even mention in the most cursory way matters in relation to the stability of the pit wall”;

(e) consequently, the EARS Notification is invalid;

4 The relief sought includes declarations and an injunction restraining the Minister from determining the E42 Modification Request.

5 Section 75W of the EPA Act relevantly provides:

“ 75W Modification of Minister’s approval

Minister’s approval means an approval to carry out a project under this Part, and includes an approval of a concept plan.

modification of approval means changing the terms of a Minister’s approval, including:

(2) The proponent may request the Minister to modify the Minister’s approval for a project. The Minister’s approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part.

(3) The request for the Minister’s approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister.

6 Curiously, the defined phrase “modification of approval” in s 75W is not used. Nevertheless, the definition is of some utility because “If an Act or instrument defines a word or expression, other parts of speech and grammatical forms of the word or expression have corresponding meanings”: s 7 Interpretation Act 1987.

7 Section 75W appears in Part 3A of the EPA Act. Part 3A was introduced by the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005, which commenced on 1 August 2005. The Explanatory Note to the Bill stated that its principal object was to provide a “separate streamlined and integrated development assessment and approval system for major infrastructure and other projects of significance”. Major infrastructure and other significant projects to which Part 3A applies are defined in s 75B. The approval of the Minister for Planning is required for development that is a project to which Part 3A applies: s 75D.

8 Section 75W(3), which empowers the Director-General to notify the proponent of EARS with which the proponent must comply, is not as rigorous as ss 75F to 75J relating to environmental assessment and Ministerial approval of a project under Part 3A. Those provisions mandate notification of the Director-General’s EARS to the proponent, consultation by the Director-General with relevant public authorities in preparing the EARS, environmental assessment by the proponent, public consultation, a report (including specified matters) by the Director-General to the Minister, and matters that the Minister must take into consideration in deciding whether or not to approve the carrying out of the project. Those provisions are inapplicable to the E42 Modification Request if it falls within s 75W.

9 Clause 8J(8) of the EPA Regulation provides:

“A development consent in force immediately before the commencement of Part 3A of the Act may be modified under section 75W of the Act as if the consent were an approval under that Part, but only if:

(a) the consent was granted with respect to development that would be a project to which Part 3A of the Act applies but for the operation of clause 6 (2) (a) of State Environmental Planning Policy (Major Projects) 2005 , and

(b) the Minister approves of the development consent being treated as an approval for the purposes of section 75W of the Act.

10 Clause 6 of State Environmental Planning Policy (Major Projects) 2005 relevantly provides:

“ 6 Identification of Part 3A projects

(a) that is described in Schedule 1…

11 Barrick’s development consent was not granted by the Minister under Part 3A of the EPA Act, but under the different Part 4 regime. However, cl 8J(8) of the EPA Regulation provides a mechanism by which major projects approved under other parts of the EPA Act can access the modification regime in s 75W. In the present case, the Minister’s approval under paragraph (b) of cl 8J(8) is the impugned Decision to Treat. It is common ground that Barrrick’s development consent satisfies paragraph (a) of cl 8J(8). That is, it was granted with respect to a project to which Part 3A of the Act applies but for the operation of cl 6(2)(a) of State Environmental Planning Policy (Major Projects).

Background

12 The development consent (DA 14/98) for the Cowal Gold Mine was granted on 26 February 1999 by the Minister for Urban Affairs and Planning under Part 4 of the EPA Act, in respect of land described in Appendix 1 thereto, for the “Construction and operation of an open cut gold mine, gold processing plant, a water supply pipeline and borefield, and associated facilities”.

13 The development consent was preceded by Barrick’s detailed environmental impact statement and by a commissioner’s inquiry and report under s 119(1) of the EPA Act (now repealed).

14 The development consent was modified pursuant to s 96(1A) of the EPA Act on five occasions prior to March 2008.

15 The modified development consent is for a period of 21 years from the date of the mining lease approval. As the mining lease was executed on 13 June 2003, the development consent will expire in 2024. However, it is a condition of the modified development consent that the development be carried out generally in accordance with the environmental impact statement, which stated in cl 2.4.1 that the mining of the open pit was expected to cease in year 8 and that the project would then process previously stockpiled ore to year 13. It was also a condition of the development consent that approval for the mining and processing of ore was for 13 years after completion of construction works (unless otherwise agreed by the Director-General). In these proceedings, it was common ground that the construction works were completed in 2005 and that the existing approval for the mining and processing of ore will expire 13 years later, in 2018.

16 The Minister for Primary Industries and that Minister’s Department administer the Mining Act 1992 and the Mine Health and Safety Act 2004, which govern the conduct and regulate the safety of mining activities. The Department of Primary Industries records record that at various times in 2007 Barrick notified it of pit failures that occurred in that year including in January, June and August. On 20 December 2007 the Department of Primary Industries recorded that there had been a slip in the eastern wall of the mine and commented that “A number of slips have occurred in this wall. It is therefore not rare, and if persons were caught in the pit the worste [sic] case is fatality”. On the same day the Department of Primary Industries issued a prohibition notice to the Cowal Gold Mine under s 93 of the Occupational Health and Safety Act 2000. The notice recorded an inspector’s opinion that an activity will involve an immediate risk to the health or safety of any person at a place of work. The activity was described as: “The proposal that persons continue to work within Phase 1 of the open pit and near the eastern wall of the open cut due to this wall’s instability as indicated by the slips that have occurred in that wall”. These records bear out the applicant’s submission that the Department of Primary Industries knew all about the issue of pit wall instability.

17 By letter dated 21 December 2007, Barrick notified the Director-General that it was proposing to further modify the development consent and requested:

(a) that the Minister give his approval under cl 8J(8)(b) of the EPA Regulation to the development consent being treated as an approval for the purposes of s 75W of the EPA Act ; and
(b) that the Director-General notify Barrick pursuant to s 75W(3) of any environmental assessment requirements in respect of the proposed E42 Modification.

18 Attached to this letter was a document entitled “E42 Modification Overview and Preliminary Assessment”. The proposed modifications listed therein may be summarised as follows:

(1) an increase in the current mining output from 2.7 million ounces ( Moz ) of gold and 76 million tonnes ( Mt ) of ore to 3.5 Moz of gold and 129 Mt of ore;

(2) an increase in the mine’s operational life. The existing approval was described as: “13 year operational life composed of an eight year mining and processing phase followed by a five year mineral processing phase”. The increase was described as: “Increased operational mine life of 20 years (from commencement of works associated with the E42 Modification), composed of a 14 year mining and mineral processing phase followed by an six year mineral processing phase”. Because of the commencement date of the extended term, the operational life of the mine would be extended not by seven years but by 11 years, as explained at [21] below;

(3) an increase in the ore processing rate from 6.9 million tonnes per annum ( Mtpa ) to 7.5 Mtpa;

(4) an increase in the open pit area from 70 ha to 130 ha and an increase in the final pit surface area from 1,000 m long x 850 m wide x 325 m deep, to 1,250 m long x 1,350 m wide x 440 m deep;

(5) an increase in the total volume of mined waste rock from 128 Mt to 184 Mt, and an increase in the area of waste rock emplacements from 315 ha to 500 ha;

(6) an increase in the height of the northern waste rock emplacement from relative length ( RL ) 1,243m to 1,255;

(7) an increase in the height of the southern waste rock emplacement from RL 1,223 m to 1,255 m;

(8) an increase in the volume of tailings to be produced from 76 Mt to 140 Mt (and consequential increases in tailings storage facilities as stated in (9) below);

(9) an increase in the height of the northern tailings storage facility from RL 1,233.5 m to 1,252 m and the southern tailings storage facility from RL 1,241.5 m to 1,256 m;

19 On 21 December 2007 the Department of Primary Industries wrote to the Department of Planning in relation to Barrick’s proposed request for modification. The letter included the following:

“This is a significant proposed variation to the existing major gold mine at Cowal, located about 38 km northeast of West Wyalong. The project would extend the life of the operation from 14 years to 20 years.

Ø Expansion of the existing open-cut mine to access additional resources in the E42 orebody,
Ø Expansion of the existing waste rock emplacements (WREs) through increases in height of both the southern and northern WREs,
Ø Increases in the surface area of both WREs,
Ø Increase in height of the northern and southern tailings storage facilities (TSFs)

…

Barrick presented a Conceptual Project Development Plan to the Department of Primary Industries-Mineral Resources Division (DPI-MR) for the Cowal expansion project at the Department’s offices at Orange on 11 December, 2007. A copy of the presentation is attached for your information.

Departmental technical experts in attendance at the meeting concluded that the company had demonstrated the technical feasibility and resource fundamentals of the proposed project. No specific technical impediments were identified at this stage that would preclude the development assessment and approval process proceeding.

Issues which were highlighted for the attention of Barrick’s consultants during preparation of the Environmental Assessment Report (EAR) included:

Ø The potential for sterilisation of ore as a consequence of the expansion.
Ø The nature and quantity of the resources (reported in accordance with JORC standards) of additional ore that will be mined.

Ø The potential for increased visual impact of the WREs and TSFs.
Ø The intended final landform, its long term safety and stability and how it will differ from that currently approved.
Ø Stability of the WREs with particular attention to vegetation and water management.
Ø The long term stability of the TSFs with the need to meet Dam Safety Committee requirements.
Ø Management of saline water in the dams.

The company indicated at the presentation that it intended to lodge a Section 75W application to modify the operation’s existing Part 4 consent in the near future, with a view to preparing an EAR and lodging it by the end of the second quarter of 2008.

20 On 13 February 2008 the Department of Planning prepared a report for the Minister recommending that the Minister approve Barrick’s cl 8J(8)(b) request to treat the development consent as an approval for the purposes of s 75W of the Act. The report attached a copy of Barrick’s letter and attachment of 21 December 2007 (see [17] and [18] above) and referred to some of the proposed modifications as follows:

extracting another 53 million tonnes of ore by deepening and widening the existing open cut pit;
increasing the mine’s maximum production rates from 6.9 to 7.5 million tonnes of ore a year;
upgrading a range of associated infrastructure at the mine, such as the tailings dams, waste rock emplacement dumps, and stockpiles;
increasing the number of employees at the mine from 200 to 315; and
extending the life of the mining operation by 7 years.”

21 The last statement, “extending the life of the mining operation by 7 years”, was incorrect. This is relevant to the challenge to the validity of the Decision to Treat referred to at [3(b)] above. In fact, the proposal was to extend the life of the mining operation by 11 years. It is common ground that the E42 Modification Request correctly described the presently approved operational life of the mine as “13 year operational life composed of an eight year mining and processing phase followed by a five year mineral processing phase” and that, as discussed at [15] above, the existing development consent for the mining and processing operation will expire in 2018. The E42 Modification Request sought an “Increased operational mine life of 20 years (from commencement of works associated with the E42 Modification), composed of a 14 year mining and mineral processing phase followed by an six year mineral processing phase”. Assuming that the E42 Modification Request were to be granted in 2009 (which Barrick has projected), then the associated works would be likely to start in 2009 and the proposed increased operational mine life of 20 years would run from 2009 to 2029. Therefore, the proposed increased life of the mine is 11 years (2029 compared with 2018) and not the seven years stated in the departmental report to the Minister of 13 February 2008.

22 The departmental report to the Minister included the following:

but for Clause 6(2)(a) of the Major Projects SEPP, the development consent for the Cowal Gold Mine was granted for development that would be a project to which Part 3A applies, as it satisfies the criteria in Clause 6 of Schedule 1 of the Major Projects SEPP being development for the purpose of mining with a capital investment of more than $30 million;

the proposed modifications involve incremental increases to the existing open cut pit and surface infrastructure at the mine, and can therefore be characterised as modifications to the existing operation rather than as a new development proposal; and

it would be better to modify the development consent under Part 3A rather than Part 4 of the EP&A Act because Part 3A offers a simpler assessment process, and is not constrained by the requirement that the development as modified needs to be “substantially the same” as the development that was originally approved.”

23 On 12 March 2008, pursuant to cl 8J(8)(b) of the EPA Regulation, the Minister made the Decision to Treat. That is, the Minister approved of the development consent being treated as an approval for the purposes of s 75W of the EPA Act. The only material before the Minister when he made the Decision to Treat was the departmental report of 13 February 2008 and its attachment: see [20] and [22] above.

24 On 25 March 2008 Barrick lodged its E42 Modification Request with the Director-General. It comprised a completed four page Department of Planning printed form and a copy of the same E42 Modification Overview and Preliminary Assessment as had been attached to Barrick’s letter of 21 December 2007.

25 By letter dated 17 March 2008 (but which was presumably written after 25 March) the Department of Planning wrote to the Department of Primary Industries stating that it had received Barrick’s E42 Modification Request; that the modification (inter alia) extended the life of the mine by seven years; that under s 75W of the EPA Act the Director-General was required to consult with relevant agencies in preparing the Director-General’s environmental assessment requirements for the modification; and requesting any specific recommendations by 4 April 2008. Consultation with relevant agencies was not in fact a requirement of s 75W. The Department appears, in effect, to have adopted that requirement in s 75F(4) relating to applications for approval of projects under Part 3A.

26 On 4 April 2008 the Department of Primary Industries wrote to the Department of Planning regarding the Director-General’s requirements for environmental assessment of the E42 Modification. The Department of Primary Industries noted that the proposed modification was discussed at its meeting with Barrick on 11 December 2007, and that its issues raised at that meeting had been noted in the preliminary assessment with the exception of pit wall stability. The Department of Primary Industries suggested that, as the pit was to be extended in surface area and depth, the environmental assessment should verify that the integrity of the lake protection bund wall would not be affected by any instability.

27 On 4 April 2008 the Roads and Traffic Authority wrote to the Department of Planning noting, among other things, that the life of the mine would be extended by 11 years not seven years.

28 On 14 April 2008, pursuant to s 75W(3) of the EPA Act, the Director-General’s delegate notified Barrick of the Director-General’s environmental assessment requirements with respect to the proposed E42 Modification that Barrick must comply with before the matter would be considered by the Minister. One of the requirements was that Barrick should consult with relevant government authorities including the Department of Primary Industries (Minerals).

29 On 18 April 2008 Resource Strategies Pty Ltd, on behalf of Barrick, provided the Director-General with Barrick’s lengthy environmental assessment, which noted that the proposed modifications would extend the life of the mine by approximately 11 years (from the currently approved 13 years to 24 years). The environmental assessment indicated the following further proposed changes to which the applicant draws attention:

(1) the addition of the INCO process as an alternative to Caro’s Acid as a cyanide destruction process through which the tailings slurry is passed;

(2) an increase in the runoff seepage from run-of-mine ( ROM ), low grade ore stockpile areas and northern tailings storage facility from 115 ML to 225 ML;

(3) an increase in the runoff from the southern tailings storage facility and southern waste emplacement from 148 ML to 190 ML;

(4) a reduction in the height of the perimeter waste emplacement in places;

(5) introduction of a thickener for discharges from the leach circuit within the existing process plant area;

30 A Department of Primary Industries Mine Safety Operations Investigation Decision Form of 23 April 2008 recorded in relation to a movement of rocks in the wall of the mine that: “Monitoring and procedures are so well established now that any movement is detected early and persons are restricted from the area well before any falls”.

31 On 30 May 2008 Barrick wrote to the Department of Planning enclosing a copy of the 2007 Annual Environmental Management Report. The letter noted that the Report had also been submitted to other specified government departments including the Department of Primary Industries, Bland Shire Council and others in accordance with a condition of the development consent. The Report stated that a slip had occurred on the pit wall from 20 December 2007, that the Department of Primary Industries was notified immediately, and that investigation into the causes was occurring at the time of writing the Report. Figure 3 was said to show “the commencement of the slow moving east wall slip”. Figure 3 was an aerial photograph taken in November 2007, thus indicating that the slip commenced earlier.

32 On 15 August 2008 the Director-General’s delegate informed Barrick that the Director-General was satisfied that the environmental assessment was adequate for public exhibition.

33 On 18 August 2008 the Department of Planning sent pro-forma letters notifying the E42 Modification Request to Bland Shire Council, Forbes Shire Council, the Department of Water and Energy, the Roads and Traffic Authority, the Department of Primary Industries, the Department of the Environment and Climate Change, Lachlan Shire Council and 12 land owners. The letters noted, among other things, that the proposal involved extending the life of the mine by 11 years and that the E42 Modification Request and accompanying environmental assessment would be on exhibition from 22 August to 22 September; and invited submissions by 22 September.

34 On 16 September 2008 the Department of Primary Industries wrote to the Department of Planning concerning the environmental assessment, stating:

“The proposed E42 Modification is essentially the same as the presently approved mining operation, however with an increased mining throughput and a correspondingly larger mine void, tailings and waste rock footprints. Current operations and proposed modifications are wholly within the Company’s Mining Lease 1535.

The Department of Primary Industries (DPI) was satisfied that the Environmental Assessment (EA) meets its requirements with regard to the identification and management of environmental issues…

Should the E42 Modification proposal be approved, Barrick will be required to submit and have approved a Mining Operations Plan (MOP) prepared in accordance with DPI’s Mining Rehabilitation and Environmental Management Process…

35 On 21 and 22 September 2008 the applicant, Mr Williams, on behalf of Mooka and Kalara United Families within the Wiradjuri Nation, wrote to the Department of Planning expressing opposition to the proposed expansion of the gold mine and making a preliminary submission. He stated that in March 2008, when he and colleagues flew over the mine, they discovered that a large section of the pit wall had collapsed.

36 On 1 October 2008 the Department of Planning provided Barrick with a copy of the submissions it had received in relation to the environmental assessment. In November 2008 Barrick responded in writing to the submissions, including the submissions of the Department of Primary Industries and the applicant. Barrick stated that prior to commencement of the proposed open pit cutback operations, the Department of Primary Industries would be provided with the results of a quantitative geotechnical investigation, which would include confirmation to the satisfaction of that Department that the long term stability of the lake protection bund would be maintained. Barrick also stated that a slip occurred on 20 December 2007 on a transitional pit wall; that the slip was timeously reported to the Department of Primary Industries whose personnel had inspected the site; that mining was in the final stages of slip remediation; and that Barrick had commenced a geotechnical investigation into the causal factors associated with the slip, the result of which would be incorporated into subsequent and final pit wall designs.

37 These proceedings were commenced in November 2008 and heard in December 2008.

Whether Decision to Treat invalid because Minister failed to consider that E42 Modification Request was to extend mine operation by 11 years

38 The applicant submits that the Decision to Treat was invalid because the Minister failed to consider that Barrrick’s proposed extension of the mine life was for 11 years. The submission is based on the mistaken description of one of the proposed modifications in the departmental report to the Minister of 13 February 2008, namely, “extending the life of the mining operation by 7 years” (as discussed at [20] and [21] above).

39 The respondents submit that:

(a) the Court should not infer that the Minister made that factual error having regard to the correct description of the extension of the mine life in the attachment to the departmental report;

(b) even if the Minister made that factual error, the number of years by which the life of the mine was proposed to be extended was not a mandatory relevant consideration for the purpose of a Decision to Treat under cl 8J(8) of the EPA Regulation. It was not material to the decision if the Minister thought that the proposed extension of the mine life was seven years rather than 11 years;

(c) even if the Minister made that factual error and the period of extension of the mine life was a mandatory relevant consideration, the Minister did not fail to consider it in the required sense, as proper consideration of a relevant matter does not demand factual correctness: Walsh v Parramatta City Council [2007] NSWLEC 255, (2007) 161 LGERA 118 at [63], approved in Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230 at [120], in a passage in turn cited with approval in Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423 at [35]; Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 at 356;

40 The threshold question is whether it should be inferred that the Minister failed to consider that the proposed extension of the mine life was 11 years rather than seven years. On the one hand, the departmental report, which was less than three pages in length and much of which was occupied by maps, wrongly said it was seven years. On the other hand, the attached Barrick documents, some 25 pages in length, indicated it was 11 years: see the words quoted at [18(2)] above. However, the words used could create the impression that the extension was for seven years unless the reader paid attention to the commencement date of the extended term. Indeed, the words appear to have been so misunderstood by the Department of Planning when compiling its report and may not have been understood by the Department of Planning until it received the Roads and Traffic Authority’s correcting letter of 4 April 2008, referred to at [27] above. There is no evidence from the Minister as to what the Minister in fact considered. In the circumstances, I am prepared to infer that the Minister was probably misled by the departmental report into thinking that the proposed extension of the mine life was for seven years.

41 A ministerial decision based on a misleading departmental communication may be vitiated if the communication led the Minister to fail to take into account a mandatory and materially relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24 at 39 – 41 per Mason J; Sharples v Minister for Local Government (2008) NSWLEC 328 at [117] – [124] where the authorities are reviewed. As to whether a matter is a mandatory consideration, the statute must expressly or impliedly oblige the decision-maker to consider the subject matter at the level of particularity alleged by the applicant: Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230 at [120]; and the authorities reviewed in Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229 at [38] – [41]. It was conventional to say that the consideration had to be proper, genuine and realistic, but that those epithets had to be applied cautiously lest they encourage a slide into impermissible merits review. However, recently the Court of Appeal has held that it is preferable to avoid using the formula “proper, genuine and realistic” or similar descriptive formulae, but that the relevant matter must be more than merely adverted to or given mere lip service: Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337 at [57] – [58], discussed in Sharples at [107] – [111].

42 The question of what factors a decision-maker is bound to consider was authoritatively addressed by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 39 – 41 as follows (omitting citations):

“The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action… Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors – and in this context I use this expression to refer to the factors which the decision-maker is bound to consider – are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision... A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision ...

43 Clause 8J(8)(b) does not expressly state that the Minister is bound to take anything other than the development consent into account when making a decision to treat a development consent as an approval for the purposes of s 75W. It is unclear whether the Minister is implicitly bound to take into account details of modifications proposed to be requested under s 75W. The construction that the clause mandates consideration of the development consent rather than details of proposed modifications finds some support in the fact that once a decision to treat is made, it appears to be unnecessary to obtain a further decision to treat before making a further modification request under s 75W.

44 Whether or not that construction is correct, in the present case the Minister did take into account details of the proposed E42 Modification Request but was misled by the departmental report into thinking that the proposed extended term of the mining operation was seven years when in fact it was 11 years. Assuming that the Minister was bound to take into account the proposed extended term, I am unable to see how that difference between seven and 11 years could have materially affected the Decision to Treat. The Minister decided that it was appropriate to approve of the development consent being treated as an approval for the purposes of s 75W on the understanding, at the time, that the mine life was proposed to be extended for seven years. As Part 3A of the EPA Act is designed for the approval of large and lengthy projects, the Decision to Treat could only have been fortified if the Minister had understood that the extension was for 11 years. There would be a strong case for saying that the mistake could materially affect the Minister’s determination of the E42 Modification Request, but that issue does not arise. The Minister has not yet determined that Request and has become aware that the proposed extension of the mine life is for 11 years.

45 Accordingly, this challenge to the validity of the Decision to Treat is unsuccessful. It is unnecessary to address the other points raised by the respondents.

46 The applicant also pleads that the Decision to Treat is invalid because the Minister failed to consider whether the pit wall had collapsed. However, in submissions the applicant did not press this matter independently of the fraud allegation, which I consider below.

Whether Decision to Treat invalid because proposed period of mine operations exceeds the term of the lease

47 The applicant submits that the Decision to Treat is invalid because the proposed period of mine operations to 2029 exceeds the term of the lease, which expires in 2024.

48 The short answer is that s 65(2) of the Mining Act 1992 makes plain that Barrick cannot apply for a new mining lease until the modification approval is in place. Section 65(2) provides:

“The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land.”

49 If it is necessary to go further, s 75V(1)(c) of the EPA Act also makes plain that in the case of Part 3A projects, the approval comes first and then the mining lease. It does not make sense if the mining lease has to be in place before approval is obtained because, once approval has been obtained, there is an obligation to grant a mining lease. Section 75V(1)(c) provides:

75V Approvals etc legislation that must be applied consistently

50 Accordingly, this challenge fails.

E42 Modification Request: the “radical alteration” argument

51 The first challenge to the E42 Modification Request is that the changes proposed therein (summarised at [18] and [29] above) are not a modification but a “radical alteration” of the existing consent. The applicant submits that the nature and extent of the proposed changes, particularly the increase in the dimensions, processes and duration of the mine, make it virtually a new development overlaid on the original development, similar to placing a block of flats over an existing house and calling it a modification of the existing dwelling.

52 The respondents submit that:

(a) there is no “radical alteration” limitation to the meaning of “modification” in s 75W of the EPA Act ;

(b) in any case, the proposed changes do not constitute a radical alteration such as would result in a finding of invalidity; and

53 This challenge assumes, correctly in my view, that a request to “modify” enlivens the Minister’s s 75W discretion to approve. A request to “modify” may be classified as a “jurisdictional fact”, an expression generally “used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question”: Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, (2008) 249 ALR 398 at [43]. A similar description appeared in Enfield City Corporation v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 at 148 [28]. In neither case did the High Court refer to the Timbarra statutory construction factors that assist in determining whether or not a fact is a jurisdictional fact: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55; followed in Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 at [14]; McGovernv Ku-ring-gai Council [2008] NSWCA 209, (2008) 161 LGERA 170 at [190]; and Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54 at [29] – [31]. A jurisdictional fact is one that the Court must decide for itself on the evidence before it: Woolworths at [105], [108].

54 The first question is whether “modification” in s 75W means to change without radical alteration (or similar). There is no considered authority on the meaning of s 75W. It is clear that “the approval” referred to in s 75W that may be modified is the approval, with any earlier modifications, as it stood at the time of the modification request, for it makes no sense to speak of modifying something that is not current. The same construction has been adopted in relation to the modification power relating to Part 4 development consents in the former s 102 (now s 96): North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474 (CA). At times, the applicant’s submissions invited comparison with the original development consent. The relevant comparison, in my view, is with the modified development consent as at the date of the E42 Modification Request.

55 The applicant’s reference to “radical alteration” picks up similar judicial comments about the meaning of “modification” elsewhere in the EPA Act, not in the context of Part 3A: for example, Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, (1999) 46 NSWLR 598 at [76], [84], [105] per Mason P, at [163] per Sheller JA; and North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474 per Mason P. In those cases, the word “modify” was given its ordinary meaning of “to alter without radical transformation”. As noted above, the latter case was concerned with the meaning of “modification” in the former s 102 (now s 96).

56 Three differences may be noted between s 75W and s 96, which is the modification provision for approvals under Part 4. First, there is a contextual difference in that Part 3A deals with a limited class of development which may be described, in a nutshell, as large, expensive and long term. Secondly, s 75W contains a broad definition of “modification of approval” with non-exhaustive illustrations, whereas s 96 contains no definition. The s 75W definition is “changing the terms of a Minister’s approval, including (a) revoking or varying a condition of approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval”. Thirdly, there is a qualification in s 96 which informs the meaning of the word “modified” as used therein: the consent authority must be satisfied that the development to which the consent as modified relates is “substantially the same” as the development already approved. That qualification is absent in s 75W, which dispenses with the requirement of Ministerial approval if the modification is consistent with the existing approval. This difference suggests that s 75W permits a modification which is not substantially the same as the development already approved. However, that is not the same as saying that s 75W permits a radical transformation.

57 The definition of “modification of approval” in s 75W lends some support to the construction that a “modification”, contrary to its ordinary meaning, may include a change which is a radical transformation of the terms of the approval because no such limitation is expressed in the definition and it is “circular to construe the words of a definition by reference to the term defined”: The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54, (1994) 181 CLR 404 at 419. However, I do not think that construction does justice to the cumulative effect of (a) the ordinary meaning of the word “modification”; (b) the absence of definition of the word “changing”; (c) the context in which these words fall to be construed; and (d) its potentially unbridled, environmentally insensitive consequences. Take, as an example, a request to “modify” the terms of this development consent by increasing the life of the mine’s operation by 100 years, the area of the mine by 100 hectares and the production of ore one hundredfold. Such changes certainly would constitute a radical transformation of the terms of the existing development consent. If s 75W nevertheless applied, then the relatively rigorous environmental assessment and Ministerial approval regime relating to approval of a project in ss 75F to 75J (discussed at [8] above) would be bypassed. Having regard to that consequence and the objects of the Act to encourage protection of the environment, ecologically sustainable development, and “proper” development of natural resources (s 5(a)), the Court should be specially careful to ascertain whether that is what the legislature intended. A modified approval must of necessity change its predecessor in some respects. However, I do not consider that the words “changing the terms” in the s 75W definition go so far as to contemplate a radical transformation. Accordingly, in my opinion, a modification of approval in s 75W means changing the terms of an existing approval without radical transformation.

58 The next question is whether the proposed changes summarised at [18] and [29] above constitute a radical transformation of the terms of the existing development consent. The respondents submit that what is proposed is not a radical transformation and Barrick submits that it is merely an “incremental change”. The test of “radical transformation” calls for an evaluative judgment following consideration of the nature and extent of the proposed changes. Here, the proposed changes do not turn the project into something different from what it has always been, a development for the “Construction and operation of an open cut gold mine, gold processing plant, a water supply pipeline and borefield, and associated facilities”: see [12] above. That, however, is not dispositive because, even if the general description of the development remains unchanged, a radical transformation of the terms of the development consent is not a change contemplated by s 75W.

59 The mine is already a major project in terms of the size of the area covered, the scope of the works and their duration. The proposed changes are a great expansion of important elements of the currently approved development. An additional 53 million tonnes of ore (up from 76 Mt to 129 Mt) is to be mined to increase gold production from 2.7 Moz to an estimated 3.5 Moz. Consequential very large increases in operational mine life (almost doubling), pit size (almost doubling), volume of mined waste rock, area of waste rock emplacements, tailings storage, low grade ore stockpile and run off seepage are required: see [18] and [29] above.

60 Over the proposed longer lifetime of the mine, almost double the amount of water will be used – up from 30,000 megalitres to 55,485 megalitres. This is evident from a comparison between the figures in condition 4.4(a) of the existing modified development consent and the figures in Barrick’s environmental assessment for the E42 Modification. The respondents submit that three matters temper this increase. First, two of the sources of the water are the same, the Bland Creek Palaeochannel Borefield and the purchase of Lachlan River temporary water entitlements. However, there is to be an additional source, a proposed new saline groundwater borefield. Secondly, the proposed average water supply usage is eight megalitres per day or 2,925 megalitres per annum, which is significantly less than the maximum 15 megalitres per day or 3,650 megalitres per annum authorised by the existing development consent. However, the comparison is of limited assistance because it is not between apples and apples but between averages and maximums. Thirdly, the existing cap from the Bland Creek Palaeochannel Borefield is not to be exceeded under the proposed modification.

61 As for rehabilitation, the respondents point out that the environmental assessment states that: “Overall, the approved [Cowal Gold Mine] rehabilitation programme would remain unchanged as a result of the E42 Modification”. However, there will be a much larger final void and emplacement areas and ultimate rehabilitation will take place years later than would otherwise have been the case.

62 Overall, in my opinion, the proposed changes, by reason of their nature and extent, are not merely substantial (which is beside the point) but amount to a radical transformation of the terms of the existing development consent. Accordingly, I uphold this challenge to the E42 Modification Request.

63 Barrick submits that, even if the E42 Modification Request seeks more than can be granted under s 75W by proposing a radical transformation, the E42 Modification Request did not constitute a breach of s 75W by the Minister and does not provide an evidentiary basis for apprehending a breach by the Minister of s 75W when the Minister comes to determine the Request. If the Request were to be granted, its terms are not yet known, and the Minister could grant a more limited augmentation than is proposed on terms which do not constitute a radical transformation of the development. Barrick submits that there is no basis for a finding that it is void and of no effect. For the same reasons, Barrick submits that relief should in any event be refused as premature.

64 This raises the question of the form of relief. The present case is atypical because the statutory request has not yet been granted. The typical cases are concerned with a challenge to the validity of a statutory consent on the ground that the application was defective because it did not comply with a mandatory statutory requirement which was a condition precedent to the granting of consent or to consideration of the application. Scurr v Brisbane City Council [1973] HCA 39, (1973) 133 CLR 242 was near enough to a typical case in that there was a notification of a proposal to grant consent from which objectors appealed by right under the legislative scheme. The NSW Court of Appeal has sometimes discussed the “validity” of a development application under the EPA Act: e.g. Helman v Byron Shire Council (1995) 87 LGERA 349 at 353; Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364, (2000) 50 NSWLR 312 at [14]; McGovern at [191]. On the other hand, the Court of Appeal has said in the context of a development application under Part 4 of the EPA Act that there is “very little, if any, scope in this legislative scheme for the concept of a ‘valid’ application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument [so] provides…”: Currey v Sutherland Shire Council [2003] NSWCA 300, (2003) 129 LGERA 223 at [35] per Spigelman CJ (Sheller JA and Foster AJA agreeing). A statutory application may be subject to an essential mandatory requirement which therefore must be substantially complied with, although substantial compliance may be satisfied by material provided subsequently: Currey at [33]; Botany Bay City Council v Remath at [14], [18], [47]; McGovern at [191]; Sharples v Minister for Local Government [2008] NSWLEC 328 at [80] – [93].

65 In the typical case the precise description of a defective application may not matter much because the question is whether the consent or approval is thereby invalidated. In the present case, it affects the form of relief. It is preferable, in my view, not to describe the E42 Modification Request as “invalid” but, rather, as not being a request to modify the Minister’s approval for a project within the meaning of s 75W. If relief were to be granted, it could take the form of a declaration to that effect. That is in fact the relief sought in the amended summons (notwithstanding that the points of claim plead that the E42 Modification Request is “void”).

66 The final consideration is Barrick’s submission that relief is in any event premature. I do not accept the submission. A request to “modify” is an essential precondition to the validity of a s 75W approval. If the E42 Modification Request does not satisfy the criterion of a request to “modify”, in my opinion a Ministerial approval of the E42 Modification Request would be no approval at all: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 at [51]; SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189 at [42]; McGovern at [197]. Moreover, as the E42 Modification Request does not fall within s 75W, the important environmental assessment and Ministerial approval regime in ss 75F to 75J would apply to the proposal.

E42 Modification Request: Barrick’s alleged fraudulently misleading conduct

67 The applicant submits that the E42 Modification Request is beyond the scope of s 75W because Barrick “fraudulently misled the consent authorities in an important respect, in connection with the documents lodged in support of the E42 Modification Request, by their failure to detail or even mention in the most cursory way matters in relation to the instability of the pit wall”. The respondents deny that the pleaded and particularised facts constitute fraud. The pleaded particulars are largely admitted by Barrick. The pleaded particulars, insofar as they are admitted or proved, are as follows, except as otherwise indicated:

(i) On a number of occasions since mine operations commenced in 2005 there have been collapses of the eastern wall of the mine pit. The most recent known major slip occurred on 20 December 2007. After cracks occurred following five to 10mm of rain, over 100,000 cubic metres of loose rocks and clay dislodged from the eastern wall and fell into the mine pit. This particular was addressed in the applicant’s submissions as follows: “On the 21st [sic] of December 2007 a slip occurred on the Eastern Wall which continued over the following weeks and by the 8th of February an estimated volume of 570,000 cubic metres had slumped into the pit”.

(ii) Mine personnel were removed from site an hour before the slip began as had happened on a previous occasion further north of the current slip.

(iii) The slip continued over an eight week period and on 25 January 2008 a further 50 metre x 10 metre block slumped into the pit. By 8 February an estimated volume of 570,000 cubic metres had slumped into the pit.

(iv) A prohibition notice was issued by the Department of Primary Industries on 20 December 2007 under s 93 of the Occupational Health and Safety Act 2000.

(v) The Department of Primary Industries inspector described such an event as “high risk”.

(vi) The applicant pleads that not one technical document or assessment provided by Barrick to the Minister as part of the Director-General’s EARS mentioned the pit wall instability despite the fact the assessments were carried out following the slip. I do not accept that this is accurate. The EARS did not require the issue of pit wall stability to be addressed. The December 2007–January 2008 incident was disclosed in Barrick’s 2007 Annual Environmental Management Report lodged with the Department of Planning on 30 May 2008. The issue of pit wall stability was raised in public submissions and addressed in Barrick’s response to those submissions in November 2008.

(vii) On 27 August 2006 material slumped on the western edge of a failure first observed on 24 May 2006.

(viii) On 16 January 2007, a failure occurred on the southern wall of the pit.

(ix) The applicant pleads that on 16 April 2007 a failure occurred on the southern wall of the pit. I do not accept that this is established by the evidence. There is a photograph in evidence taken on 16 April 2007 but it shows the event referred to in particular (viii).

(x) The applicant pleads that on 8 June 2007 a failure occurred on the south wall of the pit. I do not accept that this is established by the evidence.

(xi) On 21 June 2007 a failure occurred of approximately 30,000 cubic metres on the east wall.

(xii) On or around 25 August 2007 failure of the southern end of the eastern wall occurred in which an estimated 200,000 cubic metres slumped into the pit.

(xiii) On 12 September 2007 the Department of Primary Industries Mines Inspector in a Mine Safety Operations Investigation Decision Form stated that “Risk is high as this is the third slip and the largest”.

(xiv) On 5 October 2007 Graeme Ovens, the Acting General Manager for the Cowal Gold Mine, sent an email to the Department of Primary Industries Mines Inspector, Mark Stephens, to the effect that a slip had occurred on the west wall of the pit.

(xv) On 16 April 2008 movement occurred in the south end of the east wall. This movement occurred within the failed material from the event referred to in particular (i).

(xvi) On 23 April 2008 200 tonnes fell on the south west wall with the failure occurring over a period of a month.

68 Fraud vitiates an administrative decision procured by the fraud: SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189 at 198-206; Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17, (2008) 245 ALR 501 at [33]; Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229 at [79]; Sharples v Minister for Local Government [2008] NSWLEC 328 at [114] – [115]. Negligence is not fraud and provides no ground of complaint that the detriment vitiates the decision made: SZFDE at [53]; SZLIX at [33]; Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 at 898, 902 (HL).

69 The present case falls outside this fraud principle because there has been no relevant administrative decision. All the cases, so far as I am aware, are concerned with a fraudulently affected result, not with an undetermined fraudulent statutory request or application. The Minister has not determined the E42 Modification Request. The applicant’s challenge is to the validity of the request itself. What is said to be unravelled by fraud here is not an administrative decision but the antecedent statutory request.

70 However, the applicant prays in aid the general proposition that fraud unravels everything. Lord Denning once said, but not in the context of administrative law: “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The Court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever”: Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712. In administrative law there are few cases to illustrate this statement.

71 The general proposition that fraud unravels everything was considered in the administrative law context in the leading case of SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189. A family of Lebanese citizens arrived in Australia and applied for protection visas. The applications were refused. They commenced proceedings before the Refugee Review Tribunal for the purpose of reversing the refusals. Pursuant to a statutory provision the Tribunal invited the family to appear before it. A rogue, who wrongly claimed to be entitled to practice as a solicitor and immigration agent, advised the family not to attend the Tribunal hearing. The family followed the rogue’s advice. In its reasons, the Tribunal relied on the family’s failure to appear as a ground for rejecting the applications for review. The High Court held unanimously that there was fraud in the necessary sense by the rogue, which was perpetrated on the Tribunal as well as upon the family: at [7]. The High Court reasoned as follows:

(a) any application of a principle that “fraud unravels everything” requires consideration first of that which is “unravelled”, and second of what amounts to “fraud” in the particular context. It then is necessary to identify the available curial remedy to effect the “unravelling”: at [29];

(b) a finding of fraud should specify what was said that was fraudulent, how it was fraudulent and how it was acted upon: at [41];

(c) the ultimate issue was the effect upon the Tribunal’s decision-making process of the fraud. The fraud had the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the family: at [48] – [49]. By reason of the fraud, the Tribunal was disabled from the due discharge of its imperative statutory functions with respect to the conduct of review. That state of affairs merited the description of the practice of fraud “on” the Tribunal: at [51];

(d) the Tribunal’s decision was no decision at all because, in the sense of the authorities collected in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 at 614 – 615, the jurisdiction remained constructively unexercised: at [52];

72 It has frequently been said that fraud must be pleaded distinctly and with particularity and clearly proved: Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563 at 573. When a fraudulent misrepresentation is alleged, it is not enough to prove that the representation as pleaded was false: Krakowski at 576. To establish fraud it must be proved that the representor has no honest belief in the representation in the sense in which the representor intended it to be understood: Krakowski at 578.

73 The pleaded allegation is that Barrick’s fraudulent non-disclosure or silence as to pit wall instability misled the Minister. There is no pleaded allegation of a positive fraudulent misrepresentation. In oral submissions the applicant explained (a) that what was alleged was not a misleading statement but a misleading omission; (b) that the omission was misleading because the E42 Modification Request documents omitted to mention it; (c) that the source of the legal duty to disclose that information was cl 283 of the EPA Regulation; and (d) that Barrick’s conduct was fraudulent because the omission misled the consent authority in an important respect in connection with documents lodged in relation to the E42 Modification Request.

74 In my opinion, mere non-disclosure of information, without more, is not actionable. Before the question of fraud arises for consideration there must be a representation. Non-disclosure of information may become a representation in the following three circumstances, none of which apply in the present case. Strictly, the question of misrepresentation does not arise for consideration because it has been neither pleaded nor asserted; nevertheless I will address those circumstances.

75 First, silence may constitute an implied representation where there is a mandatory obligation or duty upon the representor to disclose a matter if it exists and where, therefore, the other party is entitled to infer from the representor’s silence that the matter does not exist: Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40, (1988) 39 FCR 546 at 557. The applicant submits that cl 283 of the EPA Regulation was the source of a duty on Barrick to disclose pit wall instability when making the E42 Modification Request. Clause 283 provides:

“ 283 False or misleading statements

76 In my opinion, cl 283 is not a source of the duty of disclosure for which the applicant contends. The phrase “makes any statement” in cl 283 is inapt to describe an omission to provide information. The applicant does not plead or contend that there was a positive statement which became false or misleading by reason of non-disclosure of pit wall stability. The omission to mention pit wall instability, which is the applicant’s allegation, did not give rise to any statement that there had been no pit wall instability.

77 The applicant’s submissions also place, unclearly, some reliance on the principle that the Minister is under a mandatory obligation to take into account the public interest when exercising functions under Part 3A of the EPA Act: Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423 at [39]. As I understand it, the applicant’s suggestion is that the Minister is obliged to take into consideration pit wall instability as an aspect of the public interest when determining the E42 Modification Request and, therefore, Barrick was under a duty to disclose pit wall instability when making that Request. Whether or not the Minister is required to take the public interest into consideration at such a high level of particularity as pit wall instability (if known to the Minister), I do not accept that it follows that there was a duty on Barrick to disclose pit wall instability when making the E42 Modification Request.

78 In my opinion, there was no mandatory obligation or duty on Barrick to disclose the past pit wall instability when making the E42 Modification Request. Neither s 75W of the EPA Act nor any other statutory provision stipulates what information is to be submitted with a modification request. That may be contrasted with cl 115 of the EPA Regulation regarding modification applications under s 96 of the EPA Act. Further, Barrick’s development consent, to which the E42 Modification Request relates, does not govern the conduct or regulate the safety of mining activities. Those matters are regulated by the Mining Act 1992 and the Mine Health and Safety Act 2004, administered by the Minister for Primary Industries and that Minister’s Department. The Minister for Planning has no role under that legislation. The regulation of mine activities in a detailed statutory regime, the administration of which is vested in another Minister, weighs against the proposition that Barrick was under a mandatory obligation or duty to refer to pit wall instability when making the E42 Modification Request.

79 Secondly, concealment of a fact may cause a true representation of another fact to become a misrepresentation. In other words, a true representation, coupled with concealment, can become a positive misrepresentation: Krakowski v Eurolynx Properties Ltd at 575. In my opinion, Barrick’s non-disclosure of pit wall failures did not cause a representation of another fact to become a misrepresentation.

80 Thirdly, silence may impliedly constitute a particular representation if, in light of a representor’s past practice, a reasonable person would understand it to do so: Shaddock & Associates Pty Ltd v Council of the City of Parramatta[No 1] [1981] HCA 59, (1981) 150 CLR 225 at 230, 238-239, 247, 256. In that case, the plaintiff’s solicitors followed the usual practice of purchasers’ solicitors in making a request for a certificate under s 342AS of the Local Government Act 1919, by asking on the request form whether the subject land was affected or proposed to be affected by road widening proposals. Although the council was under no statutory duty to answer such a question, it was the council’s practice when it received a request for a s 342AS certificate to refer to the proposal, if there was one, at the foot of the certificate. The council issued a certificate to the plaintiff’s solicitors which contained no notation in answer to that question. In fact the land was subject to road widening proposals. The High Court held that in issuing a certificate which was silent as to road widening proposals the council erroneously represented that there were no such proposals. It was further held that the council was under a duty of care to an inquirer and that the misrepresentation was a breach of the duty for which the council was liable to the plaintiff in damages for negligence. The implied representation principle expressed in Shaddock has no application in the present case.

81 As Barrick did not represent that there had been no pit wall collapses the question whether such a representation would have been fraudulent does not arise for consideration.

82 Lest I am in error and it is appropriate to consider whether the mere omission to disclose pit wall instability was fraudulent, I am not satisfied that it was fraudulent. The suggested element of fraud is deliberate concealment of pit wall instability in the E42 Modification Request documents. As the applicant submits, the Department of Primary Industries knew all about the pit wall instability. Barrick informed the Department of Primary Industries of pit wall instability at various times in 2007: see [16] above. It appears from the Department of Planning’s letters, as Barrick submits, that Barrick was aware that the Department of Primary Industries would be involved in the Department of Planning’s processes in relation to the E42 Modification Request. The involvement of the Department of Primary Industries in the E42 Modification Request process is evidenced by its correspondence with the Department of Planning from December 2007: see [19], [25], [26], [33] and [34] above. Barrick informed the Department of Planning on 30 May 2008, in forwarding its 2007 Annual Environmental Management Report, that a slip had occurred on a pit wall from 20 December, that investigation and associated government regulatory interactions were continuing at the time of the report, and that the Department of Primary Industries had been notified immediately: see [31] above. That Report referred to the prohibition notice which had been issued by the Department of Primary Industries and to additional monitoring and new procedures, and included an aerial photograph taken in November 2007 described as showing “the commencement of the slow moving east wall slip”, which indicated that the slip had earlier origins. All these circumstances tend to weigh against a conclusion that the non-disclosure was fraudulent. In my opinion, the applicant has not proved that it was fraudulent.

83 Finally, even if there was a fraudulent nondisclosure of pit wall instability, the allegation that the Minister is thereby misled cannot, in my opinion, be sustained. The Minister has not yet determined the E42 Modification Request and now knows all about pit wall instability. That knowledge was substantially acquired from the Department of Primary Industries’ communications and Barrick’s communication of 30 May 2008, and certainly from the evidence and analysis in these proceedings.

84 For these reasons, I reject this challenge to the E42 Modification Request.

Consequential challenges

85 As one of the challenges to the E42 Modification Request has succeeded, the consequential challenges to the validity of the EARS Notification and to the power of the Minister to grant the E42 Modification Request should be upheld (see [3(e)] and [(f)] above), subject to consideration of the following submission by Barrick.

86 Barrick submits that the validity of the EARS Notification is protected from challenge by a privative clause, s 75X(4) of the EPA Act, which provides:

87 As for “public notice” of the EARS Notification, Barrick relies on evidence that on 19 May 2008 a statement was posted on the Department of Planning’s website, in relation to the E42 Modification Request, that the “documents available” included the EARS, and a website link to the EARS was provided. Section 75X(2) required EARS to be made publicly available and cl 8G of the EPA Regulation authorises that to be done by making them available on the Department’s website. In my opinion, s 75X(4) is inapplicable. As the E42 Modification Request is outside s 75W, so too is the EARS Notification which depends for its life on the E42 Modification Request being within s 75W. In other words, as the E42 Modification Request does not relate to the subject matter of s 75W, neither does the EARS Notification. A privative provision on its proper construction will not protect such a “manifest” defect: Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 at [81]; Lesnewski v Mosman Municipal Council [2005] NSWCA 99, (2005) 138 LGERA 207 at [76]; Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, (2007) 154 LGERA 117 at [34], [43] (Jagot J). Those cases were concerned with a privative provision in s 101 of the EPA Act. In Lesnewski at [76] Tobias JA (Hodgson and Ipp JJA agreeing) held:

“The effect of the Chief Justice’s discussion in Woolworths with respect to s 101 is that the section does extend to protect decision from jurisdictional error at least where that expression is used in the wider sense. However, the provision does not, even after the expiration of the three month period, extend to protect decisions that do not conform to the threefold Hickman principle, namely, where it is manifest that the decision is not a bona fide attempt to exercise the power; where it does not relate to the subject matter of the legislation; or where it is not reasonably capable of reference to the power given to the decision-maker. Furthermore, it does not protect against breach of, or non-compliance with, a restriction or requirement which is construed as being of such significance in the legislative scheme that it constitutes a limitation or requirement that is variously expressed in the authorities as ‘essential’, ‘indispensable’, ‘imperative’ or ‘inviolable’.”

88 I propose the following relief:

Environmental Planning and Assessment Act

(3) Declaration that the first respondent is not empowered under s 75W to determine the said request to modify.

89 The parties are to bring in agreed or competing short minutes of orders to reflect my decision within seven days. I will hear the parties on costs if they are not agreed. The exhibits may be returned.

01/04/2009 - Minor transposition correction to [57] - Paragraph(s) 57

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Williams v Minister for Planning [2009] NSWLEC 5

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Cases Cited

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Statutory Material Cited

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CITATION:	Williams v Minister for Planning [2009] NSWLEC 5 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Neville "Chappie" Williams FIRST RESPONDENT: NSW Minister for Planning SECOND RESPONDENT: NSW Director General for Planning THIRD RESPONDENT: Barrick Australia Ltd
FILE NUMBER(S):	41118 of 2008
CORAM:	Biscoe J
KEY ISSUES:	JUDICIAL REVIEW :- whether request to modify development consent for a gold mine outside scope of s 75W Environmental Planning and Assessment Act 1979 - whether "modification" in s 75W permits radical transformation of terms of development consent - whether proposed changes constituted a radical transformation of terms of development consent - whether fraudulently misleading conduct by proponent in relation to the modification request - legal elements of fraud - whether Minister's decision under cl 8J(8) Environmental Planning and Assessment Regulation 2000 invalid because Minister failed to consider a relevant matter or because proposed period of mine operations exceeded terms of proponent's lease - whether, consequently, Director-General's decision to notify environmental assessment requirements in relation to modification request invalid - whether privative clause s 75X(4) applicable.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss 5(a), 75B, 75D, 75F, 75J, 75V(1)(c), 75W, 75X(2), 75X(4), 96, 101, 119(1), Pt 3A, Pt 4 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Environmental Planning and Assessment Regulation 2000, cll 8G, 8J(8), 115, 283 Interpretation Act 1987, s 7 Local Government Act 1919, s 342AS Mine Health and Safety Act 2004 Mining Act 1992, s 65(2) Occupational Health and Safety Act 2000, s 93 State Environmental Planning Policy (Major Projects) 2005, cl 6
CASES CITED:	Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 Anderson v Director General of the Department of Environment and Climate Change [2008] NSWCA 337 Anderson v Minister for Infrastructure Planning and Natural Resources [2006] NSWLEC 725, (2006) 151 LGERA 229 Anvil Hill Project Watch Association Inc v Minister for the Environment and Water Resources [2008] FCAFC 3, (2008) 166 FCR 54 Australian Broadcasting Tribunal v Bond [1990] HCA 33, (1990) 170 CLR 321 Botany Bay City Council v Remath Investments No 6 Pty Ltd [2000] NSWCA 364, (2000) 50 NSWLR 312 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121, (2007) 154 LGERA 117 Currey v Sutherland Shire Council [2003] NSWCA 300, (2003) 129 LGERA 223 Enfield City Corporation v Development Assessment Commission [2000] HCA 5, (2000) 199 CLR 135 Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43, (2008) 249 ALR 398 Helman v Byron Shire Council (1995) 87 LGERA 349 Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No 1) [1988] FCA 40, (1988) 39 FCR 546 Krakowski v Eurolynx Properties Ltd [1995] HCA 68, (1995) 183 CLR 563 Lazarus Estates Ltd v Beasley [1956] 1 QB 702 Lesnewski v Mosman Municipal Council [2005] NSWCA 99, (2005) 138 LGERA 207 McGovern v Ku-ring-gai Council [2008] NSWCA 209, (2008) 161 LGERA 170 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 17, (2008) 245 ALR 501 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, (2002) 209 CLR 597 Minister for Planning v Walker [2008] NSWCA 224, (2008) 161 LGERA 423 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Notaras v Waverley Council [2007] NSWCA 333, (2007) 161 LGERA 230 Scurr v Brisbane City Council [1973] HCA 39, (1973) 133 CLR 242 Shaddock & Associates Pty Ltd v Council of the City of Parramatta [No 1] [1981] HCA 59, (1981) 150 CLR 225 Sharples v Minister for Local Government [2008] NSWLEC 328 SZFDE v Minister for Immigration and Citizenship [2007] HCA 35, (2007) 232 CLR 189 The Owners of the Ship “Shin Kobe Maru” v Empire Shipping Co Inc [1994] HCA 54, (1994) 181 CLR 404 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 Transport Action Group Against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196, (1999) 46 NSWLR 598 Walsh v Parramatta City Council [2007] NSWLEC 255, (2007) 161 LGERA 118 Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707
DATES OF HEARING:	17-19/12/2008
DATE OF JUDGMENT:	5 February 2009
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Oshlack, agent SOLICITORS N/A FIRST AND SECOND RESPONDENTS: Mr M Leeming SC and Ms A Mitchelmore SOLICITORS Department of Planning THIRD RESPONDENT: Mr N Williams SC and Mr C Ireland SOLICITORS Blake Dawson