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.
[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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Williams v Minister for Planning [2009] NSWLEC 5
Case
[2009] NSWLEC 5
Decision Date
CaseChat Overview and Summary
In Williams v Minister for Planning, the applicant, Neville "Chappie" Williams, sought a declaration that a request to modify the development consent for the Cowal Gold Mine was not a request to modify within the meaning of s 75W of the Environmental Planning and Assessment Act 1979 (NSW). The applicant also challenged the validity of two decisions made by the Minister for Planning and the Director-General for Planning relating to the modification request. The court held that the modification request did not fall within s 75W because it sought to radically alter the terms of the existing development consent. The court further held that the applicant's allegation that the proponent, Barrick Australia Ltd, had fraudulently misled the Minister by omitting to mention pit wall instability in the modification request documents, did not vitiate the request itself. However, the court found that the modification request was not a request to modify within the meaning of s 75W. The court also held that the notification of environmental assessment requirements in relation to the modification request and the Minister's power to determine the request were invalid. The court granted declarations to that effect and restrained the Minister from determining the modification request under s 75W.