Williams v NSW Minister for Planning

[2010] NSWLEC 202

Land and Environment Court

of New South Wales

CITATION:

Williams v NSW Minister for Planning [2010] NSWLEC 202

PARTIES:

APPLICANT:
Neville "Chappie" Williams

FIRST RESPONDENT:
NSW Minister for Planning

SECOND RESPONDENT:
Barrick (Cowal) Ltd

FILE NUMBER(S):

40890 of 2009

CORAM:

Biscoe J

KEY ISSUES:

EVIDENCE - PRACTICE AND PROCEDURE :- tender of document rejected where irrelevant to any pleaded issue and where other side would be prejudiced if it were to be admitted in support of a new issue.

DATES OF HEARING:

13 September 2010

EX TEMPORE JUDGMENT DATE:

13 September 2010

LEGAL REPRESENTATIVES:

APPLICANT:
Mr A Oshlack, agent
SOLICITORS
n/a

FIRST RESPONDENT:
Ms A Mitchelmore, barrister
SOLICITORS
Department of Planning

SECOND RESPONDENT:
Mr N J Williams SC with Mr C R Ireland, barrister
SOLICITORS
Blake Dawson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

13 September 2010

40890 of 2009

WILLIAMS v NEW SOUTH WALES MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is a ruling on an objection to evidence on the first day of the hearing of judicial review proceedings challenging the validity of modifications to a development consent for the Cowal Gold Mine.

2 The applicant has tendered a document entitled “Cowal Gold Project Indigenous Archaeology and Cultural Heritage Management Plan” of October 2003. The respondents object to the tender. They say that no prior notice was given that the applicant proposed to tender the document, that it is irrelevant to any of the issues and that they would be prejudiced if it were to be admitted into evidence in support of a new issue.

3 There were directions given some time ago for the filing and service of evidence. This document was not filed and served. The respondents’ counsel saw it for the first time this morning when it was tendered. This document is referred to in the second respondent’s (Barrick’s) statement of environmental effects (at para 6.9) and in the Department of Planning’s assessment report (at p 9) that were before the Minister for Planning (the first respondent), both of which are in the respondents’ bundle of documents which it proposes to tender shortly. Barrick’s statement of environmental effects, after referring to this document, says:

“The proposed modification would avoid registered Aboriginal heritage sites. As such, the proposed modification would not change the potential impacts on Aboriginal heritage described in the EIS for the original CGM.”

4 The Department of Planning’s assessment report, after referring to this aspect of the statement of environmental effects, says that the Department of Planning and the Department of Environment, Climate Change and Water are satisfied that additional impacts on Aboriginal cultural heritage as a result of the modification would be minimal. The applicant says that the statement that the proposed modification would avoid registered Aboriginal heritage sites is false and that in fact it would impact upon three such sites.

5 The applicant says that the document is relevant to issues 1(c) and (d) of the statement of issues for trial agreed by the respondents, which has been filed and which says:

“1. In deciding to grant modifications 7 and 8, pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979, did the Minister, by his delegate, fail to consider:


(c) the allegedly significant cumulative impact resulting from the modifications (POC [21]); or

(d) the alleged cumulative impact resulting from the modifications including the Modification 6 E42 proposal [POC[17]-[18])?”

6 The statement of issues refers to paragraphs [17], [18] and [21] of the Points of Claim. Paragraph 21 alleges that the Minister failed to give proper regard to the public interest and the significant cumulative impact on the environment resulting from the modifications. The three particulars are irrelevant to the issue which the applicant now says it wishes to ventilate by reference to the document which he has tendered. Paragraphs 17 and 18 of the Points of Claim are very similar and it is difficult, if not impossible, to distinguish between them. They allege:

“17. The First Respondent failed to consider the cumulative effect of the modifications in conjunction with the Modification 6 E42 proposal to expand the mining, processing, water consumption and footprint of the total mine operation.

18. Further, the First Respondent’s failure to consider the cumulative effect of the modifications failed to give proper regard that the development to which the consent as modified is substantially the same development as the development for which the consent was originally granted.


PARTICULAR

The Modifications are in fact integral parts of the proposed E42 Modification (Modification 6) which at the time of the determinations for Modifications 7 and 8 were under consideration by the First Respondent pursuant to Part 3A of the EP&A Act.”

7 I see nothing in those paragraphs or particulars which would put the respondents on notice of the issue which the applicant has told me that it wishes to ventilate by reference to the document the tender of which I am considering.

8 The applicant says, however, that the respondents were put on notice of this issue in its earlier Points of Claim filed on 15 March 2010 at [27].

9 There are two difficulties with this proposition. First, paragraph 27 was omitted in the current version of the Points of Claim, which was filed following a directions hearing in this matter a week ago. Secondly, paragraph 27 of the earlier Points of Claim did not raise the issue which is now sought to be raised. It was in the following terms:

“The Applicant is further aggrieved that the First Respondent has failed to consider that the construction and expansion as a result of the Modifications has and will continue to desecrate and destroy Aboriginal Cultural Heritage sites.

PARTICULAR

Construction of the saline bore is within an area that is associated with an ancestral dreaming track. No archaeological or heritage assessment for cultural significance or artefact material has been undertaken for the modification. The Second Respondent over the last ten years has already caused irretrievable damage and destruction to some of the most significant sites within the Wiradjuri Nation.”

10 That pleading was reflected as Issue 5 in Barrick’s earlier Statement of Issues for Trial filed on 3 September 2010, but was taken out of the respondents’ subsequently agreed joint Statement of Issues for Trial because it had been deleted from the pleading.

11 In the end, the applicant’s agent frankly admits that he did not see this document until last Friday. Therefore it is little wonder that the issue to which it is said to go was not identified in the applicant’s pleadings, nor in the statement of issues.

12 The proposed new issue raises a question of fact which the respondents do not accept and which Barrick, at least in the time available to it to consider the matter this morning, has given instructions to its counsel that it would strongly contest.

13 In the circumstances, it seems to me that there is real prejudice to the respondents arising out of the flagging of this new issue only this morning and the tender of this document in support of that issue. In the circumstances, I reject the tender.