Williams v NSW Minister for Planning (No 4)

[2010] NSWLEC 222

Land and Environment Court

of New South Wales

CITATION:

Williams v NSW Minister for Planning (No 4) [2010] NSWLEC 222

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:

INJUNCTIONS AND DECLARATIONS :- moulding of declaration so that it reflects the breach found which related to only one discrete aspect of a modification to a development consent

LEGISLATION CITED:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16(1)(d)
Environmental Planning and Assessment Act 1979, ss 96(1A), 124
Interpretation Act 1987, s 32(2)
Land and Environment Court Act 1979, s 20(2)(c)

CASES CITED:

Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294
Carriage v Stockland Development Pty Ltd [No 7] [2004] NSWLEC 148
F Hannan Pty Ltd v Electricity Commission (NSW) [No 3] (1985) 66 LGRA 306
Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408
Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, 64 NSWLR 695
Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54, 167 CLR 637
Williams v NSW Minister for Planning (No 3) [2010] NSWLEC 204

DATES OF HEARING:

26 October 2010

EX TEMPORE JUDGMENT DATE:

26 October 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

26 October 2010

40890 of 2009

WILLIAMS v NEW SOUTH WALES MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT

1 HIS HONOUR: On 15 October 2010 I made a declaration that “Modification 8 to development consent 14/98 granted by the first respondent to the second respondent on 28 August 2009 pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 is invalid”: Williams v NSW Minister for Planning (No 3) [2010] NSWLEC 204.

2 The second respondent, Barrick (Cowal) Ltd, with the support of the first respondent, the Minister for Planning, now moves to vary the declaration so that it reads as follows:

“Declaration that Modification 8 to development consent 14/98 granted by the first respondent to the second respondent on 28 August 2009 pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 is invalid but only insofar as it purported to approve:

a) the introduction and use of the INCO cyanide destruction process at the Cowal Gold Mine; and
b) the carrying out of the development generally in accordance with the Modification 8 application dated 23 June 2009 to the extent that the application refers to the introduction and use of the INCO cyanide destruction process (at pages 5, 13, 17, 20, 21 and 31).”

3 The proposed variation is sought on the basis that it limits the declaration to remedying the breach of the Environmental Planning and Assessment Act 1979 identified in my earlier judgment.

4 The applicant opposes the proposed variation, arguing that it would take the Court into the merits of the case, that it undermines certainty, that there is no scope to sever, and that the second respondent is seeking to reopen on a point on which it did not earlier make submissions.

5 Modification 8 was to:

(a) increase the height of the balance of the northern and southern waste emplacements by 10 metres and 15 metres respectively;
(b) increase the total northern waste emplacement by 30 hectares;
(c) realign a small portion of the up-catchment diversion system around the northern waste emplacement;
(d) implement a cyanide destruction method (the INCO process) as an alternative to the Caro’s Acid method; and
(e) establish a borefield and associated infrastructure next to the mine at the ground surface of Lake Cowal to access saline groundwater from an aquifer beneath Lake Cowal.

6 The challenge to the validity of Modification 8 was on nine grounds listed at [27] of my earlier judgment. The only ground which succeeded was that the Minister failed to properly consider the likely impact on the environment of the proposed new INCO method of cyanide destruction and thereby also failed to properly consider the public interest.

7 Section 20(2)(c) of the Land and Environment Court Act 1979 provides that the Land and Environment Court has the same jurisdiction as the Supreme Court would, but for s 71, have to hear and dispose of proceedings (inter alia) to make declarations of right in relation to any right, obligation or duty, or the exercise of a function, conferred or imposed by a planning or environmental law.

8 Section 124(1) of the Environmental Planning and Assessment Act 1979 provides:

“ 124 Orders of the Court

(1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.”

9 The phrase “may make such order as it thinks fit” empowers the Court to mould the manner of its intervention in such a way as will best meet the practicabilities as well as the justice of the situation before it: F Hannan Pty Ltd v Electricity Commission (NSW) [No 3] (1985) 66 LGRA 306 at 311 (CA).

10 A similar approach has been taken to s 16(1)(d) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) which empowered the Federal Court to make “an order directing any of the parties to do, or to refrain from doing, any act or thing…[as it] considers necessary to do justice between the parties”. It has been held in the High Court that the legislative purpose of this provision is to allow flexibility in the framing of orders so that the issues properly raised in the review proceedings can be disposed of in a way which will achieve what is necessary to do justice between the parties and to avoid unnecessary re-litigation of the issues; that the scope of the power should not, in the context of that legislative purpose, be constricted by undue technicality; and that the words “necessary to do justice between the parties” mean justice according to law: Johns v Australian Securities Commission [1993] HCA 56, 178 CLR 408 at 433 – 434 Brennan J citing Park Oh Ho v Minister for Immigration and Ethnic Affairs [1989] HCA 54, 167 CLR 637 at 644.

11 Where a development consent has discrete components and the challenge to validity succeeds in relation to only one component, it may be proportionate and reasonable to make a declaration of invalidity only in relation to that component: Canyonleigh Environment Protection Society Inc v Wingecarribee Shire Council (1997) 95 LGERA 294 at 321-322, 324. In that case a declaration was made that a development consent was “invalid but only to the extent that it approves the construction of the proposed golf course and associated golf club house”. Similarly, a condition of a development consent may be severed and declared invalid, without affecting the balance of the development consent, if that would not result in the balance of the consent operating in a manner different to that in which the whole would have operated or if the condition is not fundamental to the development or does not go to the root of the consent itself: Maitland City Council v Anambah Homes Pty Ltd [2005] NSWCA 455, 64 NSWLR 695 at [162] – [167], [176]; Wechsler v Auburn Council (1997) 130 LGERA 134 at 137-138. A construction certificate has been declared invalid only insofar as it refers to certain work: Carriage v Stockland Development Pty Ltd [No 7] [2004] NSWLEC 148 at [21] and [30].

12 The Interpretation Act 1987 s 3 defines “an instrument” as “an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument”. Maitland and Weschler proceeded on the basis that a development consent is an “instrument” referred to in s 32(2) of the Interpretation Act, which relevantly provides:

“ 32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

…
(2) If any provision of an instrument…would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
(a) it shall be a valid provision to the extent to which it is not in excess of that power, and
(b) the remainder of the instrument…shall not be affected.”

13 In my opinion, the proposed new INCO method of cyanide destruction was a discrete and severable aspect of Modification 8. Modification 8 was in reality a bundle of modifications of which the proposed new INCO cyanide destruction method was one. The challenge to validity succeeded only in relation to that aspect. Barrick’s proposed variation of the declaration is in my view a proportionate and reasonable remedial response to the breach that I have found. In accordance with the principles to which I have referred, I propose to vary the declaration as proposed.

14 I have taken into account the matters raised by the applicant in opposition but they cannot prevail against that conclusion: see [4] above. I do not accept that the variation takes me into the merits of the case, the severability issue has been decided in favour of the respondents, and it was open to the respondents to raise the form of relief as they have.

15 Accordingly, I vary the declaration referred to at [96] of my earlier judgment so that it reads as set out at [2] above.