Winn v Director-General of National Parks and Wildlife - [2001] NSWCA 17

No judgment structure available for this case.

Reported Decision:
130 LGERA 508

New South Wales

Court of Appeal

CITATION: Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 revised - 19/03/2001

FILE NUMBER(S): CA 40026/97

HEARING DATE(S): 3 - 5 July 2000

JUDGMENT DATE:
20 February 2001

PARTIES :

Paul Winn (Appellant)
Director General of National Parks and Wildlife (First Respondent)
RZM Pty Ltd (Second Respondent)
Rutile and Zircon Mines (Newcastle) Limited (Third Respondent)
Director General of Mineral Resources (Fourth Respondent)
Minister for Mineral Resources (Fifth Respondent)
Director General of Land and Water Conservation (Sixth Respondent)

JUDGMENT OF: Spigelman CJ at 1; Powell JA at 108; Stein JA at 127

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : LEC 40209/95

LOWER COURT
JUDICIAL OFFICER : Talbot J

COUNSEL: T F Robertson/P Singleton (Appellant)
Submitting (First Respondent)
B Walker SC/T S Hale SC/Ms P Sibtain (Second/Third Respondents)
Dr M Evans (Fourth/Fifth Respondents)
Submitting (Sixth Respondent)

SOLICITORS: Woolf Associates (Appellant)
Director General of National Parks and Wildlife (First Respondent)
Minter Ellison (Second/Third Respondents)
NSW Department of Mineral Resources (Fourth/Fifth Respondents)
Department of Land and Water Conservation (Sixth Respondent)

CATCHWORDS: ENVIRONMENTAL LAW - tension between mining planning and environmental legislation - immunity from environmental legislation - Mining Act 1973, s 116 - Mining Act 1992, ss 65, 74, cls 4, 8 of Schedule 6 - ENVIRONMENTAL LAW - Development Consent - Interpretation of Planning Conditions - Finality - ENVIRONMENTAL LAW - Development Consent Conditions - Remedy for Breach - no present and continuing breach - Environmental Offences and Penalties Act 1989, s 25 - Environmental Planning and Assessment Act 1979, s 124 - D

LEGISLATION CITED: Environmental Offences and Penalties Act (NSW) 1989 ss 21, 25
Environmental Planning and Assessment Act (NSW) 1979 ss 91, 123
Hunter District Water Sewerage and Drainage Act (NSW) 1938
Interpretation Act (NSW) 1987 ss 5, 30, 33
Land and Environment Court Act (NSW) 1979 s 20
Local Government Act (NSW) 1919 Pt XIIA Div 7
Mining Act (NSW) 1906
Mining Act (NSW) 1973 ss 116
Mining Act (NSW) 1992 ss 5, 65, 74, Schedule 6 clause 4(2), 8
Protection of Environment Operations Act (NSW) 1999 s253
Hunter Water Board (Special Areas) Regulation 1989

CASES CITED:
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
AMP Society v Allan (1978) 52 ALJR 407
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Brown v EPA (1992) 78 LGERA 119
Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434
Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210
City of Unley v Claude Neon Ltd (1983) 32 SASR 329
Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319
Evans v Western Australia (1997) 77 FCR 193
Flynn v Director of Public Prosecutions [1998] 1 VR 322
Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33
G F Heublein & Bro Incorporated v Continental Liquers Pty Ltd (1962) 109 CLR 153
Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130
Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498
Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348
Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1990) 70 LGRA 79
Kent City Council v Kingsway Investments (Kent) Ltd: Same v Kenworthy [1971] AC 72
King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184
Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404
Knight v F P Special Assets Ltd (1992) 174 CLR 178
Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61
Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13
McBain v Clifton Shire Council [1996] 2 QdR 493
Malcolm v Newcastle City Council (1991) 73 LGRA 356
Miller-Meed v Minister of Housing and Local Government [1963] 2 QB 1996
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437
Parramatta City Council v Kriticos & Anor [1971] 1 NSWLR 140
Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632
Patrick Stevedores Operations (No 2) v MUA (No 3)(1998) 195 CLR 1
Qiu v Minister for Immigration (1994) 55 FCR 439
Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13
Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321
Scott v Wollongong City Council (1992) 75 LGRA 112
Seincott Pty Limited v Snowy River Shire Council (2000) 108 LGERA 66
Slough Estates Limited v Slough Borough Council (No 2) [1971] AC 958
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
Stradbroke Island Association v Sandunes Pty Limited & Redland Shire Council (1998) 101 LGERA 161
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661
Television Corporation Ltd v Commonwealth (1963) 109 CLR 59
The King v Wallis (1949) 78 CLR 529
Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598
Walker v Wilson (1991) 172 CLR 195
Woolworths Limited v Campbells Cash & Carry Pty Limited (NSWCA, 19 September 1996, unreported)

DECISION: 1. Appeal allowed with costs. 2. Set aside the order of Talbot J dismissing the application. 3. Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s 124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40026/97
LEC 40209/95

SPIGELMAN CJ

POWELL JA
STEIN JA

Tuesday, 20 February 2001

Paul WINN v Director General of National Parks and Wildlife and Ors

Facts
The Second and Third Respondents (“RZM”) conducted mineral sands mining on the Tomago sandbeds. The mining was undertaken pursuant to several relevant mining leases. ML594, granted on 3 May 1978, covered the main area mined. A smaller area was covered by ML744, granted on 6 June 1979. Areas were excised from ML594 by ML1170, granted on 14 July 1986, ML1222, granted on 10 April 1990 and ML1226, granted on 6 June 1990 (“the excision leases”). Re-mining and deep mining in the areas covered by the excision leases took place. The mining operations significantly elevated the iron and arsenic levels in the aquifer formed in the sandbeds, thus polluting the potable water supply of the Hunter area.

Two development consents were obtained. The first, relating to ML594, was granted on 7 June 1978 (“the 1978 consent”). The second, relating to ML744, was granted on 28 March 1979 (“the 1979 consent”).

In proceedings before Talbot J in the Land and Environment Court the Appellant alleged that RZM’s mining was being conducted illegally, or alternatively that it was being carried out in breach of the conditions in the development consents attached to the mining leases. A variety of breaches of other laws were alleged. The Appellant sought a variety of declarations and orders. Talbot J dismissed the application.

On the appeal the Appellant relied on alleged breaches of Condition 1 (“the aquifer condition”) - “conduct operations” so as not to cause any detrimental effect to the aquifer - and Conditions 20 and 30 (“the water pollution condition”) - “no increase in the saline, iron or other deleterious content of the water”. The Appellant and sought relief under s25 of the Environmental Offences and Penalties Act 1989 (“the EOP Act”) or s124 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”).

The first issue that arose was the ambit of the consent. Was re-mining and deep mining performed under the leases authorised under the consent and its accompanying conditions? Condition 64 provided that area could be mined “once only, unless with the consent … of the Minister … and the Board …”. The appeal also focused on the interaction between the Mining Act 1973 (“the 1973 Act”) and the Mining Act 1992 (“the 1992 Act”) and whether the protection afforded in s116 of the 1973 Act and s74 of the 1992 Act applied to the mining leases in question. In addition, the appeal concerned the interaction of the Mining Acts and planning legislation. Also at issue was whether there had been a breach of any condition and if so what relief was appropriate.
Held
The 1978 consent
per Spigelman CJ and Stein JA, Powell JA agreeing
1 The 1978 consent did not incorporate any extrinsic material either expressly or by necessary implication. Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 referred to.

Re-mining and deep mining were authorised
per Spigelman CJ, Powell JA agreeing
2 The issue is one of statutory construction. Not all conditions, delegations or deferring aspects of a development consent deprive the consent of the character of a “consent to an application”. Mison v Randwick Municipal Council (1991) 23 NSWLR 734 discussed, Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 and Scott v Wollongong City Council (1992) 75 LGRA 112 approved.

per Spigelman CJ
3 IDO 23 made express provision for the Planning and Environment Commission to require conditions to be imposed with respect to development for a mineral sand mine.
4 When assessing the validity of the exercise of statutory power concerned with the “grant” of an “application”, the nature of the development the subject of the application is of great significance. The application to mine over the area was of a character for which the environmental implications could not be determined in advance. The conditions of the consent in this case reflect the “trial” or “experimental” nature of the mining. Comprehensive provision for control and further regulation of virtually every aspect of the mining operation did not deprive the consent of the character of a “grant” for the “application”.

5 The re-mining and deep mining are a form of “mining” for which approval had been given subject to the further approval in Condition 64.

per Powell JA
6 The consents were for any type of operation which might be carried on for, or in connection with, the obtaining of mineral sands. Neither Conditions 17 nor 64 fundamentally alter the nature of the development; they vary the restrictions on the manner of conducting of mining operations.

per Stein JA
7 Under Condition 64 the leaseholder is only permitted to mine the land once. Mining the land more than once would fundamentally alter the ambit provided by the plain words of the approval. Mison supra applied. Scott v Wollongong City Council (1992) 75 LGRA 112 and Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 referred to.

8 The second half of Condition 64 is not an essential part of the development consent and can be severed without resulting failure of the remainder of the consent. Kent City Council v Kingsway Investments (Kent) Ltd: Same v Kenworthy [1971] AC 72 and Parramatta City Council v Kriticos & anor [1971] 1 NSWLR 140 applied.

9 The analysis of Condition 64 applies to Condition 17.

Applicability of the Mining Acts
(a) ML594
per Stein JA, Spigelman CJ and Powell JA agreeing
10 ML594 was granted before the 1978 consent was approved. Section 116 of the 1973 Act did not apply to ML594. Clause 8 of the transitional provisions of the 1992 Act did not operate to apply ss65 and 74 of the 1992 Act to ML594.

(b) Excision Leases
per Spigelman CJ, Powell JA agreeing
11 The 1978 consent applied to the excision leases. By reason of the formulation “shall conduct operations” both the aquifer condition and the water pollution condition refer to mining methods. They are “prescribed conditions” under s116(9) of the 1973 Act. Accordingly, s116(3A) of that Act operated to provide protection.

12 Notwithstanding the repeal of the 1973 Act, the Respondents could rely on s30(1)(a) of the Interpretation Act 1987.

per Stein JA
13 Section 116 of the 1973 Act did not apply to the excision leases because no ministerial requirement under s116(1) had been made.

14 Clause 8 of the transitional provisions to the 1992 Act provides a special regime for the application of ss65 and 74 to leases granted in accordance with s116 of the 1973 Act. As s116 did not apply to the excision leases, neither cl 4(2) nor cl 8 applies the excision leases. Thus ss65 and 74 of the 1992 Act do not apply to the excision leases.

Breach of Conditions
per Spigelman CJ and Stein JA, Powell JA agreeing
15 RZM breached the aquifer condition and the pollution condition.

per Spigelman CJ, Powell JA agreeing
16 The breach was confined to the operation in ML594. The submissions in the Court did not focus on the consequences, if separately identifiable, of breach arising from operations in this area.

Remedy
per Stein JA, Spigelman CJ and Powell JA agreeing
17 The power of the court in s25 of the EOP Act should not be interpreted in a narrow or technical sense. Brown v EPA (1992) 78 LGERA 119 approved.

per Spigelman CJ, Powell JA agreeing
18 The critical words in both the aquifer and the pollution conditions are “conduct operations”. There are now no operations and accordingly there is no present and continuing breach. Rehabilitation of the mined area does not fall under “conduct operations” as found in the aquifer or the pollution conditions. Even if it did, there is nothing to suggest that the rehabilitation is being carried so as to cause the effect stated in the conditions. Thus there is no breach within the meaning of s25 of the EOP Act.

19 “Remedy” in s124 of the EPA Act is sufficient to encompass rehabilitation orders. No findings of fact were made by the trial judge as to whether the relevant conditions had been breached with respect to ML594. The matter should be remitted to determine whether there was a breach and, if so, what remedy under s124 of the EPA Act is appropriate.

per Stein JA
20 The breaches of the conditions, being the contamination of the aquifer, are the continuing consequences of the mining operation. Rehabilitation is part of the operations still being conducted and the breaches of the conditions are continuing until remedied. The breaches may be restrained under s25 of the EOP Act and s124 of the EPA Act.
Orders
1 Appeal allowed with costs.
2 Set aside the order of Talbot J dismissing the application.
3 Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40026/97
LEC 40209/95

SPIGELMAN CJ

POWELL JA
STEIN JA

Tuesday, 20 February 2001

Paul WINN v Director General of National Parks and Wildlife and Ors

JUDGMENT

1 SPIGELMAN CJ: In this matter I have had the benefit of reading the judgment of Stein JA in draft. His Honour sets out the relevant statutory provisions, documents, factual background and issues in these proceedings. Subject to the following additional observations, I agree with his Honour’s reasons.

The 1978 Consent

2 His Honour refers to authorities which establish that the documents accompanying an application for consent are not taken as incorporated in the consent, unless incorporated expressly or by necessary implication. His Honour refers to Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, 408.

3 In addition to the authorities referred to by Stein JA, see Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 at 637 per Hope JA, with whom Jacobs and Manning JJA agreed at 637; Woolworths Limited v Campbells Cash and Carry Pty Limited (New South Wales Court of Appeal, 19 September 1996, unreported), at p4 per Sheller JA, with whom Beazley JA agreed; Stradbroke Island Association v Sandunes Pty Limited and Redland Shire Council (1998) 101 LGERA 161 at 169; Sericott Pty Limited v Snowy River Shire Council (2000) 108 LGERA 66 at 74 per Beazley JA, with whom Handley and Powell JJA (in relevant respects) agreed; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 at [37]; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324 per Else-Mitchell and Stephen JJ; Miller-Meed v Minister of Housing and Local Government [1963] 2 QB 1996 at 215 per Lord Denning and 223 per Upton LJ; Slough Estates Limited v Slough Borough Council (No 2) [1971] AC 958 at 962 per Lord Reid).

4 A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.

5 I agree with Stein JA that in the present case the documents upon which the Appellant sought to rely were not incorporated in the consent, either expressly or by necessary implication. The construction of the conditions which the Appellant contends were breached cannot be determined in accordance with what is said to arise from the documents accompanying of the application.

Condition 64

6 The first issue to be determined on this appeal turns on the proper construction of Condition 64 in the development consent which is in the following terms:

“64 The Registered Holder shall mine the subject area once only, unless with the consent in writing of the Minister for Mines and the Board first had and obtained and subject to such conditions as they may stipulate.”

7 The “Board” there referred to was the Hunter District Water Board, subsequently known as the Hunter Water Board. That Board and the Minister for Mines were given a range of functions to perform under the conditions which included Condition 64. Condition 64 cannot, in my opinion, be construed as a condition which prohibits re-mining simpliciter. It prohibits mining more than once without the concurrence of the Minister and the Board. On its proper construction it permits mining more than once if the relevant approvals are obtained.

8 Stein JA concludes, on the basis of the words “shall mine the subject area once only” that neither the re-mining nor the deep mining - the latter also generally constituting re-mining - was permitted by the consent. I agree with his Honour that the words “once only” would prohibit all forms of re-mining, including the deep mining. However, those words are qualified so that the restriction does not operate in circumstances in which a consent in writing has been obtained from the Minister for Mines and the Hunter Water Board.

9 Stein JA concludes that this part of Condition 64 can be set aside. First, his Honour concludes that it constitutes an impermissible delegation by the council of its statutory role as a consent authority, because it fundamentally alters the ambit of the approval. His Honour refers to Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 741. Secondly, his Honour concludes that that part of Condition 64 may be severed on the basis that it is not fundamental to the consent. His Honour refers to Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72.

10 In Mison, this Court held invalid a consent to a development application which included the following condition:

“Overall height of the dwelling house being reduced to the satisfaction of council’s Chief Town Planner.”

11 The relevant power was found in s91 of the Environmental Planning and Assessment Act 1979 which provided:

“91(1) A development application shall be determined by -

(a) the granting of consent to that application, either unconditionally or subject to conditions.”

12 The common law has not developed a general principle that the exercise of a statutory power must be “certain”. (See King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195; Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42). The issue is one of construction of the particular statute under consideration and the application of the statute to the circumstances of the particular case.

13 A purported exercise of the power in s91 of the Environmental Planning and Assessment Act will not be valid unless the decision constitutes a “consent”. Furthermore, a purported exercise of this power will not be valid unless it constitutes a “consent to that application”.

14 The ancillary power to impose conditions cannot be exercised in such a manner as to have the consequence that the exercise of the power fails to answer the description of a “consent” or a “consent to that application”. (See Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 at 41, 83; Genkem Pty Ltd v Environment Protection Authority supra at 44B-F, 49B-G; Evans v Western Australia (1997) 77 FCR 193 at 211-214).

15 This process of statutory construction has sometimes been expressed in the terms of a “principle of finality”, peculiarly applicable to the construction of planning statutes. (See e.g. City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15-16; Scott v Wollongong City Council (1992) 75 LGRA 112 at 115-118; McBain v Clifton Shire Council [1996] 2 QdR 493 at 496; Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437 at 452; “Administration of Finality Principle” (1996) LGPLG 136). Such terminology must be approached with care. The issue always turns on the construction of the particular statute.

16 In Mison, this Court held that the condition there under consideration was such that:

(i) The consent was not a “consent” by reason of the significance of the issue left for further determination (at 738-739 per Priestley JA and at 739G-740B per Clarke JA); and

(ii) The consent was not a “consent to the application” because it left open the possibility that the further determination would significantly alter the development for which the application was made (at 737A-D per Priestley JA and 740E-F per Clarke JA).

17 However, as Mason P, with whom Sheller JA agreed, said in Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 at [117]:

Mison

18 Indeed, as Samuels JA said in Scott v Wollongong City Council supra at 118:

“… it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or offences to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision.”

19 As Mason P pointed out in Transport Action Group v Road and Traffic Authority supra at [117] Mison itself “recognised that questions of degree are involved”. The determination of whether a condition deprives a purported consent of the character of a “consent” or of a “consent to that application” will often be difficult.

20 Condition 64 performed dual public functions. It also appears as Condition 198 in the first mining lease. The list of conditions contained in the document “Conditions of Authority” were negotiated between the Hunter Water Board and RZM. The list is incorporated as conditions of both the development consent and of the mining lease.

21 By nature of the development proposed, two distinct but overlapping regimes of public regulation were necessarily involved. By reason of the location of the proposed development, a third public authority, with regulatory powers under the Hunter District Water Sewerage and Drainage Act 1938, was also necessary involved. The objectives of finality and certainty were best served by ensuring that the three overlapping regulatory regimes coincided.

22 Of particular significance is the fact that the existence of the three regimes was known to the drafter of the relevant instrument.

23 The consent was granted under Interim Development Order No. 23 - Shire of Port Stephens, 1974. In the relevant zoning 5(a) Special Uses “A” Yellow - which encompassed the Tomago Sandbeds - development for the express purpose of “mineral sand mines” was a Column IV use, i.e. development which could be carried out only with the consent of the Council.

24 At the time, interim development was regulated by Pt XIIA Div 7 of the Local Government Act 1919. The Council’s power was found in s342V(1A) which was in the following terms:

“Subject to the provisions of any Interim Development Order, the council may, where an Interim Development Application is made, grant the application unconditionally or subject to such conditions as it may think proper to impose …”

25 Save in one respect, this section is indistinguishable from the power considered in Mison. I see no material distinction, for present purposes, between the formulation “grant the application” and “granting of consent to that application”.

26 The important qualification, for present purposes, is found in the introductory words of s342V(1A): “Subject to the provisions of any Interim Development Order”. IDO 23 contains a material provision with respect to the imposition of conditions by the State Planning Authority, (subsequently the Planning and Environment Commission - see New South Wales Planning and Environment Commission Act 1974 s18(3)).

27 Clause 11(2) of IDO 23 provided:

“11(2) The Council, before determining any application made to it under this Order to carry out development for the purpose of a mineral sand mine -

(a) shall consult with the Authority;

(b) shall neither grant its consent to such application, refuse consent thereto nor attach conditions to its consent thereto except with the concurrence of the Authority; and

(c) shall, in the event of such concurrence being given, attached to its consent such conditions as the Authority requires to be imposed.”

28 In the present case the consent of the Port Stephens Shire Council dated 7 June 1978, contained in Schedule 1, one condition in the following terms:

“1. Compliance with Planning and Environment Commission’s conditions, a copy of which is enclosed.”

29 Accordingly, the relevant power for present purposes is the power of the Planning and Environment Commission, pursuant to cl 11(2) of the IDO 23, to require the Council to impose conditions. That power is, by that clause, exercisable in relation only to development for a mineral sand mine.

30 The provision in Condition 64 for consent of the Minister for Mines and of the Board for mining “more than once” is only one example of numerous such provisions which permeate the scheme. Indeed, it is the most distinctive characteristic of the entire set of conditions that it contain detailed regulation of each step in the mining process. This is consistent with what is expressly referred to in Condition 17(c) as “the experimental nature of the mining operation and the possible risks involved thereby”. Similarly Condition 1 provides that mining should be “considered as a trial”, by reason of the fact that detrimental effect to the aquifer or the Board’s assets may take time to be “recognised and assessed”.

31 In this context detailed provision is made for control of every step in the process:

· By Condition 4 “all the … operations” in the sandbed are to be subject to the approval of the Board and to be carried out under the supervision of the Minister and of the Board.

· By Condition 6 the mining company is to comply with all instructions given by the Board and, in the event of failure will “cease all mining operations in the catchment area within 24 hours of receipt of written instruction to that effect”.

· By Condition 7 the mining company is to comply with any instructions given by the Board “for the purposes of preventing the pollution of the Tomago Sandbeds and/or the water supply”.

· By Condition 8 the Board reserves the right to withdraw approval “should the Board consider it necessary in order to safeguard its interests”.

· By Condition 14 mining operations are to be confined to dredging “unless otherwise approved by the Minister and the Board”.

· By Condition 15 no mining plant can be brought onto the area “without the approval of the Minister and the Board” and only one mining plant can be used “unless otherwise approved in writing by the Minister and the Board”.

· By Condition 16 the location of stockpiles of mine concentrate must be agreed to by the Board.

· By Condition 17(a) mining is restricted to such depths as may be approved by the Minister and the Board.

· By Condition 17(b) mining is not permitted at levels below those stipulated by the Board.

· By Condition 17(d) the mining company is each year to submit to the Board its proposals defining the extent of mining and every six months resubmit plans for approval by the Board of the extent of mining proposed during the six monthly interval.

· By Condition 18(a) the mining company is to ensure that water added or returned to the pond shall be of no less quality than that of local groundwater as determined to the satisfaction of the Minister and the Board.

· By Condition 18(b) the Minister and the Board may direct that dredging operations be conducted in a particular way to maintain water level.

· By Condition 21 all sanitary arrangements for employees shall be as approved and directed by the Board.

· By Condition 24 special measures may be imposed by the Minister and the Board with respect to the possible intrusion of salt water.

· By Condition 26(a) the programme for revegetation requires approval by the Minister and the Board.

· By Condition 26(b) a management programme to control soil erosion and to ensure rehabilitation is to be approved by the Minister and the Board.

· By Condition 26(c) the Minister and the Board may vary the identified dimensions of islands of vegetation to be left and the agreement of the Minister and the Board is required to the planting of new islands of vegetation.

· By Condition 25 fertilisers are to be of a kind approved by the Minister and the Board.

· By Condition 28(a) the obligation to remove surface material is subject to a contrary direction by the Minister and the Board.

· By Condition 28(b) the Board is empowered to agree to an alternative landform to that existing before mining.

· By Condition 28(c) the mining company is obliged to restore work areas in accordance with instructions given by the Minister and the Board.

· By Condition 28(d) in the event of fire the mining company will be subject to the instructions of the Minister and the Board.

· By Condition 29(a) before any mining is conducted a site investigation may be required by the Minister and the Board and a clearance in writing may be required from the Minister and the Board for mining to commence.

· By Condition 29(b) bore holes to provide soil and water date may be required by the Minister and the Board.

· By Condition 29(c) taking and testing of samples shall be in accordance with instructions by the Minister and the Board.

· By Condition 32 the company will cease all mining operations within 24 hours if the Minister or the Board decide that “as a result of the mining there is a deterioration in the quality of water drawn from the aquifer or there is a danger that this will occur”.

· By Condition 36 damage to lands after rehabilitation will be repaired to the satisfaction of the Minister and the Board.

· By Condition 39 the mining company will fill in any dredge, pond or other excavation if so directed by the Minister and the Board, in accordance with their instructions.

· By Condition 40 a secure fence will be provided around each dredge, pond or other excavation if so directed by the Minister and the Board and in accordance with their instructions.

· By Condition 41, fertiliser is to be spread over the restored area in such type and such quantity as may be directed by the Minister and the Board.

· By Condition 42, a secure stock proof fence is to be erected and maintained if so directed by the Minister and the Board and to their satisfaction.

· By Condition 43 the mining company is required to “observe any instructions which may be given by the Minister and the Board with a view of minimising or preventing public inconvenience or damage to public or private property”.

· By Condition 44, in the event of damage to any improvements, such will be restored to the satisfaction of the owner or of the Minister and of the Board.

· By Condition 45(b) the mining company is not permitted to keep a dog on the subject area without the approval of the Minister and the Board.

· By Condition 47 the mining company will not interfere with any fences without the consent of the Minister and the Board.

· By Condition 48 the mining company is obliged to observe and perform “any instructions given … by the Minister and the Board with a view of minimising or preventing any flood or storm damage”.

· By Condition 50(a) the mining company will erect a separation plant “to the satisfaction of the Minister and the Board”.

· By Condition 50(b) the mining company is to return tailings to the excavations or such other land “as may be directed by the Minister and the Board”.

· By Condition 51(a) in the event of mining by means other than dredging, the mining is to occur in sections of such dimensions as the Minister and the Board may stipulate from time to time.

· By Condition 52, during restoration, the mining company is obliged to observe and perform any instructions given by the Minister and the Board with a view to minimising or preventing damage by domestic animals.

· By Condition 53(a) the mining company is obliged to establish a nursery for the propagation of a number and variety of plants, shrubs and trees “which in the opinion of the Minister and the Board is adequate for the purposes of satisfactorily rehabilitating the subject area”.

· By Condition 55(a) the mining company is not to excavate within a certain distance of the boundary of a road without the consent of the Minister.

32 The detailed and comprehensive provision for control of virtually every aspect of the mining and rehabilitation of the land permeates the scheme. A number of these conditions deal with minor matters which could not impinge on the issue of validity. However, a number are potentially of the same order of significance as Condition 64 e.g. Conditions 4, 6, 7, 14, 15, 36 and 50. The lack of finality, if there be such, in Condition 64 is reflected in such a large number of conditions, all of which manifest the “experimental” or “trial” nature of the mining at the time of the respective approvals, that the process of obtaining further detailed approval represents an essential aspect of the whole scheme. If the requirement for approval found in Condition 64 is invalid then, in my opinion, many of the other conditions are indistinguishable and the whole scheme of the conditions would also be invalid. Invalidity in this respect would cause the whole of the conditions to fail. This would extend to the conditions relied upon by the Appellant i.e. Conditions 1, 20 and 30. They could not be permitted to stand alone. No doubt such a conclusion may have (or at least may have had) other implications, but no case to that effect has been pursued. In any event, in my opinion, conditions of this character are valid in the present context.

33 In the present case a regulatory authority, with State-wide environmental responsibilities, adopted and applied, for purposes of planning approval, a detailed regime of regulation worked out by two other statutory authorities, one with a clear responsibility and interest to maintain water quality and the other with overlapping statutory responsibilities. In the circumstances, in my opinion, the regime which was adopted by the Planning and Environment Commission for planning purposes was a valid exercise of the powers conferred on it, specifically the power under IDO 23 to require the Council to impose conditions as a condition of its own consent for development for purposes of a mineral sand mine.

34 When the Court is called upon to assess the validity, in terms of finality and certainty, of the exercise of statutory power, the scope, nature and subject matter of the power is of great significance. So also, in a context concerned with the “grant” of an “application”, is the nature of the development the subject of the application.

35 The starting point for the determination of such issues is the purported exercise of power. As Dixon J said in Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 756:

“In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often the most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce.”

36 The proposal to mine over an area is, of its nature, a development the full implications of which cannot be determined in advance. It is a form of development which by its nature will frequently require a development approval to contain conditions which permits adaptation of the development to the environmental implications as they unfold. This is what occurred in the detailed provisions of the Conditions of Authority by which the Board and the Minister reserved a right to control the operations in extraordinary detail, down to the grant of permission for a dog to be present on the site.

37 The statutory power of the Planning and Environment Commission, limited to concurrence for a mineral sand mine, together with the application being for such a mine, over the entire area, are both of a character that, in the circumstances of this case, provision for further approvals to the development was a valid exercise of the power. The nature of the development is frequently determinative in this regard. (See for example Flynn v Director of Public Prosecutors [1998] 1 VR 322 esp at 343).

38 The application for which consent was sought in the present case did not involve a single structure in a single location. It involved mining within an area. Conditions of the character imposed by the Commission did not deprive the Council’s grant of the character of a “grant” for “the application”.

39 In my opinion Conditions 17 and 64 are valid. In my opinion, re-mining with the concurrence of the Minister and the Board is permissible and the deep mining, whether re-mining or not, is permissible pursuant to the provisions in Condition 17, permitting the Minister and the Board to stipulate the depth of mining activity. In my opinion, the Appellant’s case that neither re-mining nor deep mining was permitted should be rejected. It was a form of “mining” for which approval had been given, subject to the further approval of the Minister and the Board.

40 The Appellant did not suggest that the requisite further approvals on the part of the Minister and the Board had not been obtained. Similarly, there was no suggestion that any mining occurred to a depth beyond that permitted by the Minister and the Board.

Breach of Conditions

41 The trial judge rejected the Appellant’s case that the Second and Third Respondents were in breach of conditions in the Conditions of Authority which were, by requirement of the Planning and Environment Commission, imposed as conditions of the development consent. The relevant conditions are:

“1. The registered holder shall abide by the provisions of the Catchment Area By-Laws applying to the Catchment Area of the Tomago Sandbeds Water supply works and shall conduct operations in such a manner as not to cause any detrimental effect to the aquifer or the Board’s assets. As there may be a time interval before some of these effects are recognised and assessed, the mining of the subject area shall be considered as a trial and for this reason the rate of mining shall be limited to the maximum rate of progress hereinafter stipulated.

20. The registered holder shall conduct tests of the dredge pond water as required by the Minister and the Board and shall so conduct operations that there is no increase above that existing naturally in the local ground water prior to mining operations in the saline, iron or other deleterious content of the water caused by the mining process or by the addition of any oils or greases or other substances which may be used either directly or indirectly in the mining process. Suspended solids in the pond water shall not exceed the limit set from time to time by the Minister and the Board. Furthermore no deleterious material including organic matter will be permitted to float on the surface of the pond.

42 The Applicant referred to Condition 1 as the “aquifer condition.” Conditions 20 and 30 were jointly referred to as the “water pollution condition”.

43 Words such as “detrimental effect”, “no increase” and “lesser quality” are general words which cannot be construed without reference to the context in which they appear. The contemporary approach to construction is not that propounded by Portia in the The Merchant of Venice with respect to a contractual arrangement for the delivery of “a pound of flesh”. His Honour was of the view, with which I agree, that these conditions cannot be construed in such manner as would, as a practical matter, have the consequence that no mining of any character would be permitted. The general words in the respective conditions may need to be read down.

44 In this Court the Second and Third Respondents contended that the “aquifer” condition should be construed as follows:

“… to prohibit a detrimental effect to the operation of the aquifer as a catchment area or as a water supply source.”

45 With respect to the water pollution condition two alternative, and in part overlapping, propositions were advanced to the effect that the two conditions should be construed:

(a) As “prohibiting the introduction of contaminating material from outside the sand beds” and to not “apply to naturally occurring materials already in the sand bed and aquifer”, or

(b) As not to “prohibit the necessary and inevitable consequences of a well managed dredging operation, where the nature of the dredging operation is judged according to the standards current at 6 June 1979”.

46 The effects which are said to constitute breaches of each of the aquifer and water pollution conditions are, in large measure, the same. Stein JA has referred to the evidence which indicates a substantial increase in the iron and arsenic concentrations of the water. Although there are differences amongst the experts as to the speed with which these increases will dissipate, there is no doubt that they are appropriately characterised as significant and that the increased concentrations will be maintained for substantial periods of time.

47 The context suggests that there is considerable force in the Respondent’s contention that the “detrimental effect” in Condition 1 should be understood as a detrimental effect “to the operation of the aquifer as a catchment area or as a water supply source”. However, the condition does not, unlike many other conditions, turn in any manner on what is from time to time found to be acceptable to the Hunter Water Board. Condition 1 is objectively stated, even if as construed in the manner for which the Second and Third Respondents contend.

48 Talbot J found that there was no breach of this condition, in part because there was no evidence before his Honour of a direct impact “upon the actual supply of water to any of the points presently used by the Board”. However, as Stein JA indicates in his judgment this is in part because the Board has averted the impact by moving the locations of its water supply points. Such conduct does not, in my opinion, avoid a breach of the condition construed in the way for which the Respondents contend. In my opinion, the observed increased concentrations of iron and arsenic could detrimentally affect “the operation of the aquifer as a catchment area or as a water supply source”, if only by reason of constraining the choices available to the Board and requiring it to avoid certain areas.

49 With respect to the water supply condition, the Second and Third Respondents first proposal for reading down Conditions 20 and 30 is that it should not apply to materials occurring naturally in the sand bed and aquifer. On this construction the process of oxidisation which inevitably leads to increased levels of iron and arsenic would not constitute a relevant breach. In my opinion, neither Condition 20 nor Condition 30 permits a construction of this character. The critical words in each are “conduct operations”. There is nothing to suggest that the “operations” there referred to are confined to materials and substances brought in from outside.

50 Condition 20 clearly distinguishes between two different mechanisms by which the prohibited effect described as an “increase … in the saline, iron or other deleterious content of the water” may be brought about. The first is that the increase is “caused by the mining process”. The second is that the increase is caused “by the addition of any oils or greases or other substances which may be used either directly or indirectly in the mining process”. The latter clearly refers to materials brought in from outside the sand bed. There is no reason to read down the words “caused by the mining process” to coincide with materials brought in from outside. In my opinion, the reference to the “mining process” includes operations which disturb the sandbed and aquifer on site.

51 Condition 30 applies generally to the quality of the “ground water in and around the ground mined”. Nothing in the text or context suggests a concern with quality limited to materials brought in from outside.

52 The second construction proposed by the Second and Third Respondents to read down the “water pollution condition” is that it should not extend to the “necessary and inevitable consequences of a well managed dredging operation”. This construction introduces vague and general words which themselves require reading down. It is by no means clear to me what would be encompassed within the words “necessary and inevitable consequences” nor within the context of a mining operation, what is the defining characteristics of one that is “well managed”.

53 On the evidence before the Court, the effects to which Conditions 20 and 30 refer depend to a significant degree on the depth of the mining operation, whether well managed or otherwise.

54 The increased concentrations that have occurred go well beyond anything that can be regarded as the “necessary and inevitable consequences” of mining simpliciter. The conditions cannot be read down so that the very effect which is prohibited becomes permissible because the kind of mining operation actually conducted is unable to comply with the condition. The effects have been determined by the kind and intensity of mining that has in fact occurred. They cannot be regarded as a consequence of any mining.

55 No doubt there is a point below which changes in the iron and arsenic content of the water would not constitute an “increase” within Condition 20 and beyond which water does not become “of lesser quality” within Condition 30. Whatever that particular point may be is merely of academic interest. The consequences that appear on the facts of the present case clearly lie beyond any such levels.

56 By reason of his Honour’s construction of the condition, Talbot J did not need to make, and did not make, the findings of primary fact which are necessary to establish an actual breach of Conditions 1, 20 and 30. Although the evidence suggests a breach, I do not believe it is appropriate for this Court to make such a finding. This is particularly so because no attempt has been made to separate the observed effects with respect to ML594 from the effects of other leases. For the reasons I set out below, it is necessary to do so.

57 Subject to any other defences, this factual issue should be remitted. Accordingly, it is necessary to determine the defences advanced on the part of the Second and Third Respondents to the effect that the operations were not subject to these two conditions.

Mining Acts Defences

58 The leases may be conveniently dealt with in three groups:

(i) ML744

(ii) ML594

59 In the case of ML744 all parties agreed that s65 and s74 of the Mining Act 1992 applied. On this basis the aquifer condition and the water pollution condition, on which the Appellant relies, are void. Operations within this area did not constitute a breach of either condition.

60 With respect to ML594, the Second and Third Respondents conceded in written submissions (pars [60] and [62]) that because the lease preceded the 1978 development consent, the two conditions were applicable to operations under that lease. On this basis, no protection was available under s116 of the 1973 Act. Nevertheless, in supplementary submissions (par [49]) the Second and Third Respondents invoked the protection of s74 of the 1992 Act on the basis that s116 did apply. The original concession was correct.

61 I agree with Stein JA that s116 of the Mining Act 1973 was not applicable to ML594. I also agree that cl 8 of the transitional provisions in Schedule 6 of the Mining Act 1992 did not operate to apply ss65 and 74 of that Act to ML594.

62 I also agree that cl 4(2) in the Sixth Schedule does not operate with respect to the specific regime created by cl 8 of that Schedule. (See in addition to the authorities referred to by Stein JA, the authorities collected in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at [69]-[73]).

63 None of the subsections of s116 apply to ML594, because the lease was granted before the development consent.

64 With respect to the excision leases, the Second and Third Respondents relied on s65 and s74 of the 1992 Act in the manner outlined by Stein JA.

65 There are difficulties with the construction of “in accordance with” in cl 8. There are also difficulties with the application of s65 and s74. The construction of the phrase “appropriate development consent” raises a number of issues. The Fourth and Fifth Respondents submitted that the phrase referred to a consent which extended to “use of land for purpose of obtaining minerals”. Stein JA would give s65 a different construction and a distinct “primary purpose”. In my opinion, this issue does not need to be decided. Nor does the application of s74.

66 I prefer to leave these matters until a case arises in which it is necessary to decide them. I note that the specific conclusion Stein JA reaches in this regard turns, in part, on his Honour’s conclusion, contrary to my own, that the 1978 consents did not authorise re-mining and deep mining.

67 The excision leases are in a different position from ML594 by reason of the fact that they were granted after the commencement of the Mining Act 1973. As Stein JA concludes, the excision leases are not entitled to the protection of s116(3) of the 1973 Act because this subsection required, at all times, a condition, “pursuant to a requirement under subsection (1)(a)” of s116. There was no such requirement.

68 Until the 1983 amendments subsection s116(4) of the Mining Act 1973 turned on the same precondition as s116(3), (i.e. these had to have been a requirement under s116(1)(a) that an applicant for the mining lease apply for consent). From 1983, however, that condition was deleted.

69 Subsection 116(3A) has never turned on a “requirement under subsection 116(1)(a)”. Subsection 116(3A) provided:

“Where a mining lease is granted over any land to a person, any condition (being a prescribed condition) imposed by an authority, … as a condition of, or in connection with, a consent to the use of the land for the purpose of obtaining minerals given to the person before the grant of the lease (otherwise than pursuant to a requirement under subsection (1)(a)) is void and the consent to that use of land shall be deemed to have been given free of the condition.”

70 The purpose of the subsection was to cover the situation in which the protection of ss116(3) and (4) (in the latter case before the 1983 amendments) was not available because a person applied for development consent before a direction under s116 was made.

71 In the second reading speech, the Minister referred to s116 and said (New South Wales Legislative Assembly, Hansard, 2 November 1983 p2297):

“However, on some occasions applicants for mining leases lodge applications for consent before a direction under section 116 is made. By taking early action to obtain development consent applicants can, on occasions, reduce the time taken to obtain the grant of a lease and thereby commence operations at an early date.

As the Act presently stands such a person does not obtain the benefits of section 116(3) and (4) unless he makes a further application for consent pursuant to a direction made under section 116.

The application of these provisions to a mining project is important as they relate to the type of conditions that may be imposed and the time within which operations must be commenced. They also provide protection against the variation of consent conditions.

The Department of Environment and Planning has expressed concern at the need or such applicants to apply for consent for a second time and indeed this double requirement has met with some criticism from the industry.

The opportunity has been taken to amend the Act to provide that where a person is granted development consent otherwise than pursuant to a direction by the Minister pursuant to section 116(1), the provisions of section 116(3) and (4) shall apply under the grant of a mining lease to that person.

Mining Act

72 The effect of subsection (3A) was reinforced by the inclusion in s116(1), after the word “granted”, of the clause “to the applicant for the mining lease (being an applicant who has not already obtained that consent)”. In circumstances where a consent was extant there was thus no obligation upon the Minister to serve the instrument in writing requiring an application for consent to be made.

73 Before Talbot J, the Appellant submitted that the 1983 amendments did not have a retrospective effect. However, in this Court the Appellant expressly stated that he would not pursue that submission.

74 The Appellant’s submission in this Court was to the effect that s116(3A) only applied “where there was some mutuality between development consent and mining lease”. He submitted that the “remedial purpose” identified in the Second Reading Speech was that it should apply only to a consent for a mining licence obtained “in anticipation of a requirement to do so with a view to securing the grant of a mining lease for the same operation”. The Appellant went on to submit that the protection should not be afforded to the excision leases on the basis that it should not extend to such leases “granted in relation to a small part of the DA area a decade later for a different mining operation”.

75 The fact that the excision leases relate to only part of ML594 does not appear to me to be a material distinction. Consent for the whole encompasses consent for the part. The gravamen of the submission with respect to “mutuality” and “different mining operation” would have force if the original consent did not authorise re-mining and deep mining. For the reasons I have outlined above, in my opinion, consent did extend to all forms of mining, including those characterised by the Appellant in this case as “re-mining” and “deep mining”. Such mining activities required further approvals from the Board and the Minister but, subject to obtaining such approvals, there was no relevant difference between the consent and the leases.

76 On this analysis s116(3A) applies so that, with respect to the excision leases, any “prescribed condition” is void and the consent is “deemed to have been given free of the condition”.

77 By s389 of the Mining Act 1992 the 1973 Act was repealed. However the rights and privileges which RZM had under the 1973 Act were protected by the Interpretation Act 1987, unless a contrary intention appeared in the Mining Act 1992.

78 The Second and Third Respondents relied, alternatively, on two paragraphs of s30(1) of the Interpretation Act as follows:

“30(1) The amendment or repeal of an Act or statutory rule does not:

(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or

…

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, …”

79 It is sufficient for present purposes to refer only to s30(1)(a). A prescribed condition that was “void” by reason of the operation of s116(3A) of the 1973 Act would not be “revived” by reason of the repeal of that subsection.

80 However, in accordance with s5(2) of the Interpretation Act these provisions apply subject to any contrary intention in the subsequent Act. The issue is whether the 1992 Act contains any such contrary intention.

81 By cl 8 of Schedule 6, the Parliament has provided for a similar consequence to that which, in the circumstances of this case, would be attained by s30(1). It did so by providing that s65 of the 1992 Act applied to a mining lease “granted in accordance with section 116 of the Mining Act”. Furthermore, s65 provided that a “special purpose condition” was void in the case of a mining lease with respect to which “an appropriate development consent is in force”.

82 As set out in the judgment of Stein JA, the submissions in this Court were based on a fine analysis of the formulations “in accordance with section 116 of the Mining Act” and of “appropriate development consent”. There are cases in which express provision of this character will operate to the exclusion of the overlapping provision of the Interpretation Act.

83 In G F Heublein & Bro Incorporated v Continental Liqueurs Pty Ltd (1962) 109 CLR 153 at 161, the High Court concluded that in the statutes there under consideration, the express provision made in the subsequent act with respect to applications under the repealed act was intended to be exhaustive and, accordingly, an overlapping provision in the Interpretation Act 1901 (Cth) did not apply. (cf Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 384).

84 In the present case, such a conclusion depends on the proposition that cl 8 of Schedule 6 restricts the continued protection to cases of mining leases which can be said to have been “granted in accordance with s116” in the sense that there had been a “requirement” under s116(1)(a). This would have the effect that all conditions which had been void for up to a decade - between the time of the 1983 amendments to the 1973 Act and the time of the 1992 Act - would thereupon revive.

85 I can see no basis for such a conclusion. For purposes of the present case, it makes no difference whether a flexible interpretation is given to the phrase “in accordance with” in cl 8, or whether cl 8 is found not to be exhaustive. I prefer the latter.

86 Schedule 6 is concerned with “Saving, transitional and other provisions”. Clause 1 makes provision for regulations to make further provision of a “savings or transitional nature”. Such regulations could make further provision with respect to matters hitherto protected by s116(3A) on the basis that the formulation in cl 8 “in accordance with s116” does not cover subsection 116(3A). In my opinion, cl 8 is not exhaustive with respect to savings and transitional provisions. There is scope for the application of the overlapping provisions of the Interpretation Act.

87 I should note that this conclusion is not inconsistent with my acceptance of Stein JA’s reasoning that cl 8 operates, to the exclusion of cl 4(2). The latter is a general provision which would render nugatory all special provisions of which there are a number of examples in Schedule 6.

88 Section 116(9) of the 1973 Act defines “prescribed condition” to mean, inter alia, a condition concerning “mining methods to be employed”. Talbot J referred to cl 15 in Div 2 of Pt 2 of Schedule 1 to the 1992 Act which made provision for a “special purpose condition” in terms, which his Honour said, and the Appellant accepted in this Court, did not relevantly differ from the definition of “prescribed condition” in the 1973 Act. His Honour held that each of the conditions relied on by the Appellant were “special purpose conditions”. His reasoning would apply to the characterisation of each as a “prescribed condition” for purposes of s116(3A) of the 1973 Act.

89 The Appellant submitted that each condition related to the consequences of mining, i.e. no “detrimental effect”, “no increase in … iron”, no “lesser quality”. However, in each case, as I have indicated, the operative effect of the obligation is on the verb in the formulation “shall conduct operations”. The obligation is not an obligation to secure or avoid an effect. The obligation is to conduct mining so as not to have an effect.

90 The full context of each relevant condition makes it clear that the “operations” referred to encompass “mining methods” within the definition of a prescribed condition. I note that, by s6(1) of the 1973 Act the word “mine” when used as a verb is defined to mean:

“to disturb, remove, cast, carry, wash, sift, smelt, refine, crush or otherwise deal with … sand … for the purpose of obtaining any mineral.”

91 In Condition 1, the aquifer condition, the obligation is “shall conduct operations in such a manner as not to cause any detrimental effect to the aquifer”. The second sentence of the condition states that as these “effects” may take time, “mining” is to be considered a “trial” and it is for that reason that the “rate of mining” is to be limited. The reference to “operations” plainly encompasses “mining methods”.

92 The position is the same in the water pollution condition. Condition 20 imposes the obligation “shall so conduct operations that there is no increase …”. The link to mining methods is express in the formulation of what must not increase, by referring to both a standard of comparison and a causal mechanism. The standard of comparison is “no increase” in what was present in ground water “prior to mining operations”. The causal mechanism is “saline, iron or other deleterious content of the water caused by the mining process”.

93 Similarly in condition 30, the obligation is expressed in terms of “will so conduct operations”. However, the location of the obligation is expressed to be “the ground water in and around the ground mined” and the warranted effect is that this water “is not caused to become of lesser quality after mining than … before mining”.

94 In each case the obligation is, in my opinion, focussed on mining methods. Accordingly, by force of s116(3A), operations under the excision leases did not result in a breach of any condition of development consent.

95 On this analysis any breach of Conditions 1, 20 and 30, is confined to the operations in ML594. The submissions in this Court did not focus on the consequences, if separately identifiable at all, of breach of the conditions arising from operations in this lease area. The submissions, and such of the evidence to which the Court’s attention was directed, were concerned with the effects of mining in all lease areas. Perhaps some separate effects from operations in ML594 can be identified. However, the evidence was not marshalled in this way. Subject to the exercise of the discretion to grant relief, it would be appropriate to remit the matter to the Land and Environment Court in this regard.

Relief

96 As Stein JA indicates, Talbot J granted leave to institute proceedings under the Environmental Offences and Penalties Act 1989 (“the EOP Act”). That judgment has not been appealed. Subsection 25(1) and (5) of that Act provide:

“25(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of this or any other Act, or any statutory rule under an Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.”

…

“(5) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.”

97 I agree with Stein JA that, for the reasons advanced by Pearlman J in Brown v EPA (1992) 78 LGERA 119, the word “restrain” when appearing in subs 25(1) and (5) is not to be interpreted in a narrow or technical sense. The submissions of the Second and Third Respondent to the effect that the section only permits orders in the form of an injunction should be rejected.

98 The issue of relief turns on the fact that mining in the Tomago Sandbeds has ceased and will not be resumed. Under s25(1) the question is whether any “breach” which this Court or the Land and Environment Court finds to exist “is causing or is likely to cause harm to the environment”. The critical aspect of the provision is the tense. The breach which is to be “restrained” is a breach that either “is causing” or “is likely to cause” harm to the environment.

99 The issue is whether the present tense of the statutory formulation qualifies both the occurrence of the harm and the occurrence of the breach. If all that is required is the occurrence of the harm, then the Court’s power may extend to past breaches. The context suggests that the tense applies to both i.e. the breach must also be current. Subsection 21(5) gives power to make orders to restrain breaches which “will be committed”. In my opinion, the power does not extend to past breaches with current effects.

100 Stein JA concludes that the breach of conditions of the development consent are continuing and will continue until remedied. His Honour states that the essence of the breach of Condition 1 is the causing of a detrimental effect to the aquifer and that the breach of Condition 20 is the causing of an increase of iron and, presumably also of arsenic in the ground water. His Honour holds that these breaches are continuing in that they are the continuing consequences of the mining operations.

101 The issue is one of characterisation of the breach. As quoted above each of the three conditions are expressed in terms of “shall conduct operations” with the effects, or absence of effects, identified in each of Conditions 1, 20 and 30. As I have indicated above, in my opinion, the critical words in each condition are the words “conduct operations”. I do not agree that the appropriate characterisation of the conditions is to focus on the consequences of mining so that, as long as such consequences exist, there is a continuing breach of condition. The obligation, in my opinion, is to “conduct operations” with a particular effect. If there are no operations there is no present and continuing breach of the conditions.

102 On the basis of this analysis there is no “breach” which, in terms of s25 of the EOP Act, “is causing or is likely to cause harm to the environment”. Any breach of a condition expressed in terms of shall “conduct operations”, has caused harm to the environment and such harm continues. In the absence of any operations, however, there is no continuing breach of the obligation to “conduct operations” with a particular effect. Accordingly, the breach is not at present “causing harm to the environment”. Nor is there any likelihood of such harm.

103 The Appellant submitted that the words “conduct operations” in each of Conditions 1, 20 and 30 should be extended to encompass the steps taken by way of rehabilitation and not be limited to the process of mining in the sense of the extraction of mineral sands. It may very well be that steps taken in the course of rehabilitation are capable of having, in and of themselves, some form of “detrimental effect to the aquifer” or to cause an “increase” in “saline, iron or other deleterious content” or otherwise affect the quality of ground water. Nothing of that character is suggested in this case. Rather, the Appellant’s submissions were directed to the proposition that as “operations” in the form of rehabilitation were still being “conducted”, there was a current breach because such operations can extend to steps taken to remedy the effects of past extraction conduct.

104 Even if one were to accept the Appellant’s contention that “rehabilitation” is the “conduct” of “operations”, within the meaning of each of the three conditions, there is nothing to suggest that any breach of the condition is occurring in the course of such “rehabilitation”. The obligation in Condition 1, on this basis, would be to “conduct” rehabilitation “in such a manner as not to cause any detrimental effect to the aquifer”. There is no evidence suggesting that rehabilitation is being conducted with any such effect. Similarly, in Condition 20 the obligation would be to “so conduct” rehabilitation so that “there is no increase … in the saline, iron or other deleterious content of the water”. And in Condition 30 the obligation would to “so conduct” rehabilitation that the “ground water … is not caused to become a lesser quality after mining”. In neither case is there any suggestion that the “operations” currently being conducted in the form of rehabilitation, on the assumption that such answers the description of “operations”, are being conducted in a manner to cause either of the effects.

105 Counsel for the Second and Third Respondents accepted that the reference to “remedy” in s124 of the Environmental Planning and Assessment Act was sufficient to encompass orders by the Land and Environment Court which could require something further in the form of rehabilitation over and above that which is presently proposed. This concession was properly made.

106 In my opinion, there is a case that there has been a breach of Conditions 1, 20 and 30 with respect to ML594. Talbot J did not make the findings of fact which were necessary to draw the conclusion that any condition has been breached. The matter should be remitted to the Land and Environment Court on the basis that it remains open to that Court to determine whether there was, in the past, a breach of those conditions and, if so, what if any orders by way of “a remedy” are appropriate under s124 of the Environmental Planning and Assessment Act.

107 The orders I propose are:

1 Appeal allowed with costs.
2 Set aside the order of Talbot J dismissing the application.
3 Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.

108 POWELL JA: In this matter I have had the opportunity of reading in draft the several judgments which have been prepared by Spigelman CJ and Stein JA. Subject to the additional comments which I record below, I agree with the orders proposed by Spigelman CJ and with the reasons which his Honour, in his Judgment, has given for proposing those orders.

109 It seems to me that the first question to be resolved is as to the scope of the 1978 and 1979 Development Consents, for, as will be apparent, the primary basis for Stein JA's conclusion that the appeal should be upheld is that neither of those consents authorised re-mining or deep mining and that RZM's conduct of such mining activities thus involved it in the carrying on of development without consent.

110 At the respective times when the Development Applications were made and the 1978 and the 1979 Development Consents were granted, lands within the Shire of Port Stephens were subject to Interim Development Order No. 23 - Shire of Port Stephens ("IDO 23") which IDO had been made by the then Minister for Planning and Environment on 10 May 1974 and had been published in the New South Wales Gazette of 17 May 1974.

111 Clause 2(1) of the IDO provided (inter alia) as follows:

"2(1) In this Order unless the context or subject matter otherwise indicates or requires:

………

'Mine' means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode, or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place adjoining on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry.

'Mineral sand mine' means a mine for or in connection with the purpose of obtaining ilmenite, monazite, rutile, zircon, and similar materials.

………"

112 Clause 3 of the IDO set out, in the usual form, the Land Use Table, which table made provision for (inter alia) a Special Uses "A" zone within which zone "mineral sand mines" were designated as a Column IV development, that is, developments which might be carried out only with the consent of the Council.

113 The lands the subject of each of the 1978 and the 1979 development consent were located within a Special Uses "A" zone.

114 In the Development Application which led to the grant of the 1978 Development consent, the description of the development proposed was given as "mineral sands mine".

115 The Shire Clerk's letter of 7 June 1978 which conveyed the Council's consent to the development proposed commenced as follows:

"I have to advise that the application to use the above land has been dealt with and approved subject to any conditions that may appear in Schedule 1, on the reverse side of this consent.

………"

116 In the Development Application which led to the granting of the 1979 Development Consent, the description of the development proposed was given as "mineral sands mining - enlargement of existing use - South-Western and North-Western extensions to mining operations currently being carried (sic) within Mining Lease No. 594 (Act 1973) Parishes Eldon and Stockton."

117 The Shire Clerk's letter of 28 March 1979 conveying the Council's consent to the development proposed commenced:

"I have to advise that the application to use the above land has been dealt with and approved, subject to any conditions that may appear in Schedule 1 on the reverse side of this consent."

118 Given the description of the proposed development for which consent was sought in each of the two Development Applications and the definitions of "mine" and "mineral sand mine" contained in the IDO, it seems to me that each of the 1978 and the 1979 Development Consent, unless to be read down by reference to the conditions attached to each consent, was a consent to the carrying out on the land the subject of each application for development consent of any type of operation which might be carried on for, or in connection with, the obtaining of mineral sands.

119 The question then is, whether the conditions attached to each consent, and, in particular, Condition 64 so operate as to restrict the ambit of each consent so as to preclude the re-mining of lands already mined and deep mining of such lands.

120 In his Judgment, Stein JA wrote (inter alia) as follows:

"In general terms what occurred was that RZM carried out mining of the subject land. This operation has been referred to as shallow mining, to a depth of a maximum of minus RL3m. The mined area was then rehabilitated. RZM then re-mined the same area (from 1986 to 1990) and later from August 1990 carried out deep mining to a depth of up to 12m in excess of shallow mining.

Mison v. Randwick Municipal Council

………

Section 65 of the 1992 Act

256 On the assumption that the transitional provisions can apply ss 65 and 74 to the mining leases, other than ML744, it is necessary to consider those provisions.

257 At the trial RZM argued that ss 65 and 74 provided a complete defence to any claim for breach of the development consents or breach of the EPA Act for failure to obtain consent where consent was necessary.

258 It was submitted by RZM that s 65 removed the conditions of the 1978 consent which related to mining methods and to the environmental performance of the operation and s 74 removed any obligation to comply with planning laws as far as current operations were concerned.

259 Section 65 only has effect in relation to mining leases granted under the 1992 Act. It cannot apply to leases granted under the 1973 Act unless by a deeming or transitional provision. Assuming such a deeming, it is apparent that no lease can be granted unless ‘an appropriate development consent’ is in force. This must mean a development consent which is appropriate to the mining operation to be authorised by the proposed lease. If the development consent is not for the mining operation proposed to be authorised by the lease, then there is no ‘appropriate development consent’ that is in force with respect to the land. In this circumstance s 65 does not apply.

260 Where an appropriate consent has been issued, any conditions relating to mining methods and rehabilitation are void and the consent is taken to be given free of such conditions.

261 Talbot J decided that s 65 did not apply to ML594 but applied to ML744 and to the excision leases. I agree with his Honour with respect to ML594. However, with regard to the other leases his Honour found that the development consents were ‘appropriate’ and accordingly, the conditions relating to mining methods etc. were void. However, the development consent needs to be an ‘appropriate’ development consent, not just any development consent for the use of the land for mining.

262 I accept the submission of the appellant that there needs to be some harmony or concordance between the subject development consent and the proposed mining lease for the former to be an ‘appropriate’ consent. A development consent would be an inappropriate one if it did not reflect the mining operation included within the proposed mining lease. An appropriate development consent would be one which did so reflect the mining operation proposed in the lease application. The symmetry requires more than just a commonality of the taking of mineral sands or, to use his Honour’s words, the ‘dominant characterising purpose which can be commonly inferred from the applications’.

263 Such a construction defeats the purpose and intent of s 65, which is to ensure that a specific mining operation is subject to planning scrutiny and consent before the grant of a mining lease with respect to it. For example, if the only commonality is that the consent and the mining lease relate to the same mineral, one could envisage significant inconsistencies in the quantity of the mineral to be extracted as between the development consent and the mining lease. The result could nullify the objective of planning scrutiny. Environmental impacts would obviously greatly differ. Further, a development consent to an underground mine could authorise an open cut mine or vice versa. The primary purpose of s 65 is to ensure that the objectives of planning law are achieved, including the right of the public to object, rather than thwarted.

264 It must be kept firmly in mind that s 65 acknowledges that a planning consent authority may refuse consent to a mining operation the subject of a proposed mining lease. In my opinion, there must be some reasonable congruence or consonance between the subject matter of the development consent and what is proposed for the mining lease in order that the former may be an appropriate development consent under s 65.

265 In this case the excision leases authorise deep mining and re-mining whereas, as I have found, the 1978 consent did not. Accordingly, it is not an appropriate consent to those leases.

266 Moreover, the leases were granted after mining activities had been completed under ML594 and the land had been rehabilitated. This provides another reason why the consent is not appropriate. The mining to which the consent related had been completed, the land rehabilitated and the relevant mining lease (ML594) surrendered in relation to the areas which became the excised leases.

267 The construction adopted by the trial judge could lead to different mining operations undertaken by different mining operators being enabled by a single development consent obtained on the basis of certain given environmental impacts. Such a possibility could not have been intended.

Section 74 of the 1992 Act

268 Turning to s 74, it will be seen that it applies to mining leases which have effect. For a mining lease to have ‘effect’, it needs to have been granted where an appropriate development consent is in force (s 65). The transitional provisions did not apply ss 65 and 74 to leases granted under earlier Acts otherwise than in accordance with s 116 of the 1973 Act. It follows that the mining leases which have effect under s 74(1) are those which have been granted in accordance with s 65, and those granted in accordance with s 116 of the 1973 Act. Both of these categories require compliance with the planning regime as a condition to obtaining immunity from planning law.

269 While a mining lease has effect, it is immune from planning law in so far as it may operate to prevent the carrying on of mining operations. As his Honour said, s 74 has nothing to say about regulating the manner in which mining operations are carried out except when the effect is to prevent mining altogether.

270 The immunity is however subject to the proviso in ss (2). This provides that the immunity ceases if mining operations under a lease have not commenced within 5 years after the date of the development consent.

271 In so far as the facts of the case are concerned, since mining operations have ceased and are not proposed to resume, s 74 does not, in my view, prevent an order being made for rehabilitation. Such an order may have to be drafted so as not to prevent the leaseholder from continuing the present activities being carried on. But that would be a matter for further evidence (possibly) and the moulding of a suitable form of order.

272 I should turn to s 74(2), in case it be relevant. Assuming that his Honour was correct that ML594 was otherwise within ss 65 and 74, it is apparent that ss (2) was satisfied since mining operations began on that lease within 5 years of the consent.

273 The excision leases mostly relate to areas excised from ML594. They were granted between 1986 and 1990. No new development consents were obtained. His Honour held that the 1978 and 1979 development consents sufficed to support the new leases. The consents were to the use of the land for the purpose of obtaining minerals and related (in part) to the same land as the new leases. His Honour reasoned that s 116(1) did not apply because development consent was unnecessary since it had already been obtained.

274 In any event, Talbot J held that ss (3A) and (4) applied irrespective of whether consent was obtained pursuant to a requirement under s 116(1)(a). His Honour rejected the appellant’s submission that it required a direct connection between the lease and the consent. His Honour found that the excision leases were granted in accordance with s 116 for the purposes of cl 8. Finally, his Honour found that s 74 applied to the leases because they continued to have effect when the 1992 Act came into force.

275 As I have said, his Honour’s above findings are disputed and, it seems to me, with some legitimacy. I am unable to see how it can be concluded that the 1978 and 1979 development consents were referable to the excision leases granted many years later. But assuming that they can rely on the earlier consents, ‘mining operations under the lease(s)’ (my emphasis) did not begin within 5 years after the date of the giving of the development consents, thus s 74(2) applies and no immunity is obtained under s 74(1). In my opinion, it would make a mockery of the legislative provisions to hold that because the nature of mining is a continuous process, RZM can rely on the commencement of operations under ML594 (a different lease) to comply with s 74(2) in relation to mining leases granted many years later and in respect of a different mining project.

276 In relation to the excision leases the position is simply this. Development consent was required for them but none was obtained. Since these leases were directed to re-mining and deep mining, they were of a different nature to the 1978 development consent, which I have held did not include those activities. Clearly since no appropriate development consent was in force for these leases in 1992, neither ss 65 nor 74 applied. Moreover, the mining operations under the leases had not begun within 5 years of the 1978 consent being granted. In my opinion, the transitional provisions did not apply ss 65 and 74 to those leases.

Breach of conditions of development consents

277 The development consent conditions which the appellant maintains have been breached are condition 1 (the aquifer condition), condition 20 and allied conditions (the pollution conditions) and the fauna conditions. However, as already stated, the appellant does not press breaches of the fauna conditions.

The aquifer condition

278 This condition (No 1) is to be found in the 1978 and 1979 development consents. It was also a condition of ML594 until 30 June 1995 and contained in ML744.

279 The plain and unambiguous words of the first sentence of condition 1 require RZM to conduct its operations so ‘as not to cause any detrimental effect on the aquifer’. There is evidence of significant detrimental impacts of mining activities on the aquifer prior to 1995. It is to be found in the findings of the consultants to the steering committee established in 1995 to investigate the situation. The detriment to the aquifer includes its partial removal, acidification and contamination with elevated levels of iron and arsenic, which would affect its use for potable water for a very lengthy period of time from the cessation of mining.

280 His Honour held that a purposive approach should be applied to construe the aquifer condition ‘in the context of the nature of the development and mining authorised … ’. He added that it would be a ‘curious result if the effect of condition 1 was to prohibit any interference with the aquifer in circumstances where the interference has been specifically’ permitted by the Regulation 27 permit. This was a reference to the permit issued by the sixth respondent in 1995.

281 It is impermissible to construe a condition imposed in 1978 by reference to the granting of the permit in 1995. The Regulation 27 permit is irrelevant to ascertain the meaning of condition 1 of the 1978 consent. It must be recalled that in 1978 the Board was both manager and regulator of activities within the subject sandbeds, as well as the user of its potable waters. The sandbeds had been reserved for the purpose of water supply since 1916. The purpose of the conditions included in the 1978 consent was far more than simply to protect the Board’s asset. For example, numerous conditions relate to protection of flora and fauna and to rehabilitation.

282 It is not permissible to construe condition 1 in the light of subsequent events, see AMP Society v Allan (1978) 52 ALJR 407. Nor is it permissible to read the condition down as his Honour appears to have done. His Honour was concerned with whether there was any evidence that established a direct detrimental impact upon the ‘actual supply of water to any of the points presently used by the Board’. He found that there was no such evidence. While this may have been literally correct, the reason that this may be so was the withdrawal by the Board from areas affected by contamination. However, the condition is not restricted to a direct detrimental effect on the actual supply of water to the Board. The condition states that the leaseholder shall not conduct operations so as to ‘cause any detrimental effect to the aquifer or the Board’s assets’ (my emphasis).

283 The condition protects both the aquifer and the Board’s assets. His Honour appears only to have given effect to the latter and to read out the former to the extent that the actual water supply then presently used by the Board had not been detrimentally effected. The ‘detriment’ in the condition clearly relates both to the aquifer and to the Board’s assets.

284 I mentioned the reason why his Honour was able to find that there was no direct impact by way of detrimental effect on the actual supply of water to the Board. It was because the Board had to move its extraction points as RZM’s mining operation proceeded so as to prevent a detrimental impact on the potable water supply for Newcastle. For example, pump station No 6 (north and south) had to be abandoned and decommissioned in 1994 due to the extremely high iron levels. It also appears from the evidence that pump station 22 will necessarily be abandoned. Further, the Board anticipates that the mining activities will ultimately lead to the abandoning of other pump stations (3, 4, 21 and 1). There is uncertainty about these because it is presently impossible to predict how long it will take for the elevated iron levels to decay to background. Clearly this could take a considerable period, possibly running into several decades. It is common ground that at least 20 years is involved.

285 Presently known iron concentrations are extremely high, coupled with arsenic concentrations, both well in excess of the NHMRC draft drinking water guidelines. What has occurred is the very thing that the aquifer condition, and other conditions of the 1978 consent, sought to avoid. The detrimental impact on the aquifer is not some minor and transient deleterious effect. It is dramatic and long lasting. RZM was in breach.

286 In my opinion, the words in condition 1 are plain and should be given their ordinary and natural meaning. The words used give effect to the purpose of the legislation. There is no ambiguity in them and the construction adopted by his Honour is not available. Indeed, I do not see how the construction favoured by his Honour was truly a purposive one. It did not promote the purpose or object underlying planning legislation.

The pollution condition

287 Condition 20 in the 1978 and 1979 consents is also to be found in the conditions of ML594 until 1995 and in ML744. Condition 20 does not appear in MLs 1170, 1222 and 1226, although other pollution conditions appear in those leases.

288 Condition 20 provides that the leaseholder shall conduct operations so that there is ‘no increase above that existing naturally in the local ground water prior to mining operations in the saline, iron or other deleterious content of the water caused by the mining process’.

289 His Honour accepted RZM’s submission that the condition should be ‘construed so that the prohibition contained in them does not apply to the necessary and inevitable consequences of a well managed dredging operation’.

290 The obvious intent of condition 20 is that mining operations not cause any elevation in iron, or other deleterious substances, in the water in the aquifer above those naturally existing prior to mining. One may put to one side slight elevations not causing any short or long term effect on the quality of water in the aquifer. There is however no sanction in the plain and readily understandable words in condition 20 to read out of it any elevations which arise as the ‘inevitable consequences of a well managed dredging operation’. This is to write into the conditions words that are not there. The construction has the effect of severely cutting back the clear words of prohibition in the condition. Such a construction defeats the purpose of the condition and is unwarranted. Indeed, the construction has the effect of permitting the very thing the condition seeks to prohibit. It must not be forgotten that conditions of a development consent serve to protect the public interest and that breaches may be enforced by ‘any person’ under s 123 of the EPA Act. It is not simply a decision to be made by the regulator.

291 In any event, I fail to see how what occurred, the oxidation leading to elevated iron and arsenic levels, can be said to be a naturally occurring process. What happened was a direct result of the mining operations, which are the antithesis of processes naturally occurring in the sandbed.

292 On a correct construction of conditions 1 and 20 in the 1978 and 1979 consents, RZM was in clear breach of both. The same conditions are included in ML594 (to 1995) and ML744. Section 5 of the 1992 Mining Act prohibits mining otherwise than in accordance with a mining lease in force in relation to the land. Mining has plainly occurred in breach of the conditions of these mining leases and consequently, in breach of the 1992 Act.

293 As mentioned, the sixth respondent issued a permit to the third respondent under cl 27 of the Hunter Water Board (Special Areas) Regulation 1989 on 9 August 1995. Condition 9 of the permit required RZM to observe all statutory provisions in force relating to the mining operations and to comply with the conditions of its relevant mining leases. Condition 9 would include compliance with relevant development consents. I have found that RZM breached the conditions of the development consents and the mining leases mentioned. This would amount to a breach of the permit and cl 25 of the Regulation.

The question of relief

294 The breaches of the development consents or the carrying on of development without consent (where consent is required) may result in relief being granted under s 124 of the EPA Act. Breaches of the mining leases are breaches of the Mining Act 1992 by way of s 5 and can only result in relief via s 25 of the EOP Act. Likewise any breach of the Reg 27 permit.

295 RZM submits that no relief may be granted under s 25 because there is no threat of any breach to be restrained. All mining has ceased and is not to be resumed.

296 The EOP Act was enacted in 1989. Its principal object was to supplement other laws which protect the environment from pollution (s 3(1)).

297 Section 25(1) provided that:

Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of this or any other Act, or any statutory rule under an Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.

298 Subsection (3) required the leave of the Court to be given to any proceedings under the section. Talbot J granted such leave and this is not in issue on the appeal.

299 Subsection (5) provided:

If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.

300 The EOP Act has been repealed and s 25 has been re-enacted in a slightly different form in s 253 of the Protection of the Environment Operations Act 1999. Leave of the Court is no longer required.

301 Counsel for RZM draws attention to the difference in the wording between s 25(1) of the EOP Act and the broader words used in s 124 of the EPA Act, which includes ‘remedy’. Mr Walker submits that s 25 cannot apply because there is no breach which is causing or likely to cause harm to the environment. If there was a breach, it has long since ceased. It is also submitted that the section only permits injunctive orders to be made and not declaratory relief.

302 In Brown v EPA (1992) 78 LGERA 119 the Chief Judge of the Land and Environment Court, Pearlman J, considered a similar argument. Of it she said:

Interpretation Act

I am fortified in this approach to the construction of the section by the words used in subs (5) and the opening words of subs (6). Subsection (5), (which subs (6) does not limit) empowers the Court to “… make such orders as it thinks fit to restrain the breach or other conduct …”. Clearly “restrain” is here used in a wide not technical sense. It would be straining the language of subs (5) to hold that the only orders it permits are orders granting injunctive relief. (at 126)

303 I agree with her Honour and adopt her reasoning. Bearing in mind the objects of the EOP Act and the extension of standing to pursue relief where the breach (or threatened or apprehended) of any statute is causing or likely to cause harm to the environment, the provision should not be read narrowly but expansively. See Knight v F P Special Assets Ltd (1992) 174 CLR 178 at 205 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581 - 582. Further, in the specific context of the Land and Environment Court, see Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13.

304 The fact that the removal of minerals has ceased, and is not threatened to resume, does not mean that s 25 is not able to be enlivened. Rehabilitation is part of the operations still being conducted on the land and the breach of conditions of the development consent, the mining leases and the Regulation 27 permit, are continuing until remedied.

305 The essence of the breach of condition 1 is the causing of a detrimental effect on the aquifer, namely the iron and arsenic contamination. The breach of condition 20 is the causing of an increase of iron in the water over and above that naturally existing. These breaches were caused by the mining operations of RZM. The breaches, that is the contamination of the aquifer, are continuing. They are the continuing consequences of the mining operation. The contamination of the aquifer is not being caused by the present activities of rehabilitation. The breaches, it seems to me, may be restrained under s 25 of the EOP Act and, in so far as they constitute breaches of the EPA Act, under s 124 of that statute.

306 In relation to the point taken by RZM, it should be noted that no such question relating to s 25 was raised before the Land and Environment Court. Accordingly, we do not have the benefit of his Honour’s reasons. The time for the issue to be raised was on the application for leave, or at least before the trial ended. Notwithstanding that I assume Talbot J would have followed and applied Brown, there is, in my opinion, nothing in the point.

307 While I have found that RZM has been in and is in breach of planning law, of the conditions of development consent, and of mining without consent where it was required, there is a question as to whether any declaratory relief should be granted. Many of the breaches took place in the past and, to some extent, events have overtaken them. Moreover, no mining (only rehabilitation) is presently taking place, nor is any mining contemplated in the future. The same may be said of the breaches of the mining leases (s 5 of the Mining Act), as well as the Regulation 27 permit. However, what is important is the continuing consequence of the breaches.

308 In so far as any declarations are reliant on s 25 of the EOP Act, for reasons already mentioned, I believe that it is open to grant relief. Declarations are also open to be made under the EPA Act. There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer.

309 The real point of the litigation, as I understand the appellant, is to seek relief by way of mandatory order to rehabilitate the land in such a way as to cleanse the aquifer of iron and arsenic contamination, which is not being undertaken by the present rehabilitation being carried out by RZM.

310 The respondents argue that there is no purpose in remitting the matter to the Land and Environment Court. In support of this proposition they argue that by reason of s 74 of the Mining Act 1992 the Court has no power to make such an order. I have already rejected this submission. Any order made may not prevent the leaseholder from carrying on mining operations. The reason for this is that no mining operations are presently being carried on or are contemplated. Mining has been completed and has ceased. In any event, it will be up to the Court, should it decide in its discretion to make any order, to tailor such order to the law and to the particular circumstances disclosed by the evidence.

311 That the mining operations have ceased has been confirmed by the undertaking handed to the Court during the hearing of the appeal. There is now simply nothing to prevent. In any event, as far as the excision leases are concerned, because of the operation of s 74(2), subsection (1) has no operation.

312 The second reason advanced by the respondents is discretionary. It is submitted that having regard to his Honour’s findings of the conduct of mining over a lengthy period of time and his remarks on discretion, there is no practical purpose in a remitter.

313 I am unimpressed with the respondents’ arguments on discretion, and do not accept the submission that a remitter has no utility.

314 First, his Honour’s comments on discretion were obiter and made on the basis that no relief was to be granted since no breaches had been found. His Honour’s remarks are not determinative. The remitter will be held in a quite different context, acknowledging the breaches and the finding of the Court on appeal, and in the light of what has occurred since his Honour’s judgment in 1996. In this latter respect, the parties have filed considerable evidence. The remitter will also be on the basis that no mining is presently proceeding nor intended in the future. To use the expression of the appellant’s counsel, the caravan has moved on.

315 There is, in my opinion, good reason why the matter ought be remitted. The situation of damage to the sandbeds and the aquifer is a continuing one. It is important for the Land and Environment Court to hear evidence on whether or not, in the exercise of the discretion, a mandatory order for rehabilitation should be made. If it determines that an order should be made, the precise terms of that order will require further evidence and consideration, especially in respect of its framing. I am unpersuaded that it is necessary to hear counsel on the form of Short Minutes of Order to be made by the Court of Appeal.

Summary of principal conclusions

(a) Neither the 1978 nor 1979 development consents authorise re-mining or deep mining and development consent was required for such.

(b) The excision leases were not granted in accordance with s 116 of the Mining Act 1973.

(c) Clause 8 of schedule 6 to the Mining Act 1992 limits the effect of cl 4(2) of that schedule.

(d) Sections 65 and 74 of the Mining Act 1992 do not apply to ML594 and the
excision leases.

(e) None of the conditions of the 1978 and 1979 development consents were void.

(f) RZM are in breach of the conditions of the development consents, in particular conditions 1 and 20, and the breach is continuing.

(g) RZM breached s 5 of the Mining Act 1992 in relation to ML594 (to 1995) and ML744.

(h) RZM breached the Regulation 27 permit.

Orders

316 I would propose that the following orders be made:

1. Appeal allowed with costs.

2. Set aside order of Talbot J dismissing the application.

3. Declare that mining activities carried out by the 2nd and 3rd respondents on the subject land have been and continue to be in breach of the 1978 and 1979 development consents.

4. Declare that no development consent under the EPA Act 1979 has been granted to permit re-mining or deep mining of the subject land where development consent is required.

5. Declare that mining by the 2nd and 3rd respondents of the subject land has been carried out in breach of s 5 of the Mining Act 1992 and the permit granted under Hunter Water Board (Special Areas) Regulation 1989.

6. Remit the proceedings to the Land and Environment Court to consider what further orders, if any, should be made requiring the 2nd and 3rd respondents to restore the subject land and, in particular, the aquifer.

OoO

Citations

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17

Most Recent Citation

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CITATION:	Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 revised - 19/03/2001
FILE NUMBER(S):	CA 40026/97
HEARING DATE(S):	3 - 5 July 2000
JUDGMENT DATE:	20 February 2001
PARTIES :	Paul Winn (Appellant) Director General of National Parks and Wildlife (First Respondent) RZM Pty Ltd (Second Respondent) Rutile and Zircon Mines (Newcastle) Limited (Third Respondent) Director General of Mineral Resources (Fourth Respondent) Minister for Mineral Resources (Fifth Respondent) Director General of Land and Water Conservation (Sixth Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Powell JA at 108; Stein JA at 127

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40209/95
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	T F Robertson/P Singleton (Appellant) Submitting (First Respondent) B Walker SC/T S Hale SC/Ms P Sibtain (Second/Third Respondents) Dr M Evans (Fourth/Fifth Respondents) Submitting (Sixth Respondent)
SOLICITORS:	Woolf Associates (Appellant) Director General of National Parks and Wildlife (First Respondent) Minter Ellison (Second/Third Respondents) NSW Department of Mineral Resources (Fourth/Fifth Respondents) Department of Land and Water Conservation (Sixth Respondent)
CATCHWORDS:	ENVIRONMENTAL LAW - tension between mining planning and environmental legislation - immunity from environmental legislation - Mining Act 1973, s 116 - Mining Act 1992, ss 65, 74, cls 4, 8 of Schedule 6 - ENVIRONMENTAL LAW - Development Consent - Interpretation of Planning Conditions - Finality - ENVIRONMENTAL LAW - Development Consent Conditions - Remedy for Breach - no present and continuing breach - Environmental Offences and Penalties Act 1989, s 25 - Environmental Planning and Assessment Act 1979, s 124 - D
LEGISLATION CITED:	Environmental Offences and Penalties Act (NSW) 1989 ss 21, 25 Environmental Planning and Assessment Act (NSW) 1979 ss 91, 123 Hunter District Water Sewerage and Drainage Act (NSW) 1938 Interpretation Act (NSW) 1987 ss 5, 30, 33 Land and Environment Court Act (NSW) 1979 s 20 Local Government Act (NSW) 1919 Pt XIIA Div 7 Mining Act (NSW) 1906 Mining Act (NSW) 1973 ss 116 Mining Act (NSW) 1992 ss 5, 65, 74, Schedule 6 clause 4(2), 8 Protection of Environment Operations Act (NSW) 1999 s253 Hunter Water Board (Special Areas) Regulation 1989
CASES CITED:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 AMP Society v Allan (1978) 52 ALJR 407 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Brown v EPA (1992) 78 LGERA 119 Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 Cann’s Pty Ltd v Commonwealth (1946) 71 CLR 210 City of Unley v Claude Neon Ltd (1983) 32 SASR 329 Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 Evans v Western Australia (1997) 77 FCR 193 Flynn v Director of Public Prosecutions [1998] 1 VR 322 Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 G F Heublein & Bro Incorporated v Continental Liquers Pty Ltd (1962) 109 CLR 153 Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130 Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1990) 70 LGRA 79 Kent City Council v Kingsway Investments (Kent) Ltd: Same v Kenworthy [1971] AC 72 King Gee Clothing Co Pty Ltd v Commonwealth (1945) 71 CLR 184 Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 Knight v F P Special Assets Ltd (1992) 174 CLR 178 Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13 McBain v Clifton Shire Council [1996] 2 QdR 493 Malcolm v Newcastle City Council (1991) 73 LGRA 356 Miller-Meed v Minister of Housing and Local Government [1963] 2 QB 1996 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437 Parramatta City Council v Kriticos & Anor [1971] 1 NSWLR 140 Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 Patrick Stevedores Operations (No 2) v MUA (No 3)(1998) 195 CLR 1 Qiu v Minister for Immigration (1994) 55 FCR 439 Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Scott v Wollongong City Council (1992) 75 LGRA 112 Seincott Pty Limited v Snowy River Shire Council (2000) 108 LGERA 66 Slough Estates Limited v Slough Borough Council (No 2) [1971] AC 958 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Stradbroke Island Association v Sandunes Pty Limited & Redland Shire Council (1998) 101 LGERA 161 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 Television Corporation Ltd v Commonwealth (1963) 109 CLR 59 The King v Wallis (1949) 78 CLR 529 Transport Action Group against Motorways Inc v Roads and Traffic Authority (1999) 46 NSWLR 598 Walker v Wilson (1991) 172 CLR 195 Woolworths Limited v Campbells Cash & Carry Pty Limited (NSWCA, 19 September 1996, unreported)
DECISION:	1. Appeal allowed with costs. 2. Set aside the order of Talbot J dismissing the application. 3. Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s 124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.