Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd

Inc v Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Lesnewski v Mosman [2005] NSWCA 99; (2005) 138 LGERA 207 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Local Government v South Sydney City Council [2012] NSWCA 288; (2002) 55 NSWLR 381 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Parramatta City Council v Hale (1982) 47 LGERA 319 Parramatta City Council v Pestell (1972) 128 CLR 305 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Reid's Farm Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198; (2013) 200 LGERA 1 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 Willoughby v Dasco Design (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 Winns v Director-General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199; (2001) 116 LGERA 378 Category: Principal judgment Parties: Agricultural Equity Investments Pty Ltd (Applicant) Westlime Pty Ltd (First Respondent) Parkes Shire Council (Second Respondent) Representation: Counsel: Mr I Hemmings SC with Ms A Hemmings (Applicant) Mr C Ireland (First Respondent) Ms H Irish (Second Respondent)

Solicitors: Hones La Hood (Applicant) Ashurst (First Respondent) Pikes and Verekers Lawyers (Second Respondent) File Number(s): 41125 of 2012

TABLE OF CONTENTS Topic Paragraph AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief [1] The Granting of the 1988 Consent [5] Events Subsequent to the Granting of the 1988 Consent [17] The 2009 Modification Approval [35] The 2012 Modification Approval [50] Issues for Determination [62] Legislative Framework Governing the Proceeding [64] Evidence of the Parties [76] Was the 2009 Approval Invalid Because the 1988 Consent Was Spent? [91] The Principles of Construction of Development Consents [93] The 2009 Modification Approval is Valid [94] Did the Council Have Regard to the 1988 Consent When Determining the 2012 Modification Approval? [121] Whether s 96(2)(a) of the EPAA Gives Rise to an Objective Jurisdictional Fact as to the Council's Satisfaction that the Developments Were Substantially the Same [139] Whether the Decision to Grant the 2012 Modification Approval Was Manifestly Unreasonable [165] Legal Principles Governing the Power to Modify in s 96(2) of the EPAA [173] Discretion to Order Relief [188] Orders [198]

AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief

1. The following events, drawn from the four volumes of documentary materials relied upon by the parties, and a statement of agreed facts ordered by the Court, are uncontentious.
2. The applicant, Agricultural Equity Investments Pty Limited ("AEI"), is the holder of exploration licence 7242 ("EL 7242"). The first respondent, Westlime Pty Limited ("Westlime"), is the registered proprietor of land at London Road, Parkes, which is known as the 'London-Victoria Mine' ("the mine"). The area of the mine is 280ha. EL 7242 covers a broad area of land, including the land within which the mine is situated.
3. From about the late 1800s the mine was worked as a gold mine, with those mining activities ceasing in the 1950s. In the late 1980s BHP Gold Mine Limited ("BHP") sought to carry out open cut gold mining on the land at the mine, together with associated ore treatment to extract gold metal products.
4. Accordingly, on 29 April 1988, BHP lodged with the Parkes Shire Council ("the council") a development application to carry out a gold mining operation at the mine ("the 1988 DA"). The proposal was described by the council in a letter of notification to relevant authorities and interested persons as: The proposal involves the establishment of an open cut mine on the site of the former London/Victoria mine Workings, south of Parkes, adjacent to Shire Road No. 47, known as the London Road. Associated with the open cut mine will be overburden storage area, a process residue storage dam, water catchment dams, office and amenities building and a carbon-in-pulp treatment plant to extract gold from the ore, heap leach treatment for some of the ore may be established at a later date. It is proposed to extract up to eleven million tonnes of material over the projected five year life of the mine.

The Granting of the 1988 Consent

1. The 1988 DA was accompanied by an Environmental Impact Statement for the Proposed London-Victoria Mine Parkes, NSW prepared by BHP ("the 1988 EIS") and a Summary of Environmental Impact Statement for the London-Victoria Gold Mine Parkes, NSW prepared by BHP, both dated May 1988 ("the 1988 EIS Summary").
2. The 1988 EIS Summary explained that both the heap leach method of gold ore processing and carbon-in-pulp (or CIP) method would be used, and provided that "ore from additional reserved [sic] in the London-Victoria project area or other mining operations may also be processed at the CIP plant at the site". It provided that the processing plant would crush, screen, grind and mill the gold ore prior to treatment in the leach tanks of the CIP plant, and that the operation of the processing plan would be 24 hours per day, seven days per week.
3. With respect to the project outline, the 1988 EIS stated that "the life of the project is expected to be 4 years". An extension of this time was stated to be "dependent on whether additional ore reserves are located and the continuing market for gold". It was noted that additional open cut reserves may be found on the lease thereby extending the life of mine, and that it was "also possible that an underground mine may be developed to recover deeper and higher grade ores". In this regard, the 1988 EIS stated that "ore from additional reserves in the London-Victoria project area or other mining operations may also be processed by the C.I.P. plant at the site."
4. The 1988 EIS described the project as involving the "mining of gold ore…by open cut methods". The "environmental effects and project justification" were that "the land use on the site will change for the period of the project from rural to mining and mining purpose. At the completion of mining the land will be restored and made available for rural purposes again". Further, it explained that the gold bearing ore recovered from the open pit mine would be treated in a CIP processing plant and that this process has been determined to be the "most suitable for the gold ore on the site".
5. With respect to the proposed surface facilities, the 1988 EIS noted that because of the "relatively short period of mining all structures will be designed to be demountable to allow site clearance and rehabilitation at the end of the mine life".

Events Subsequent to the Granting of the 1988 Consent

1. An agreement for the supply of water between BHP and the council was signed on 29 March 1989 ("the supply of water agreement"). Clause 4.4 stated that, "the Shire shall do all things reasonably necessary on its part to facilitate effective operation of the Pipeline and will co-operate with BHP to ensure the safe and efficient operation of the Pipeline".
2. On 13 October 1989 BHP agreed to pay road maintenance contributions to the council for the haulage of ore to the land. In a letter to the Manager of the Parkes Gold Mine dated 28 November 1991, the council stated that, "these contributions were agreed to in accordance with Condition 5.1 of Development Consent No 379/88 for the London Victoria Mine."
3. Almost a decade of open cut gold mining and ore processing for gold ensued.
4. In the meantime, in late 1993 Hargraves Resources NL ("Hargraves") purchased the mine and treatment plant. In a letter to the council dated 14 June 1994, Hargraves stated that: To extend the life of Parkes operation, we are undertaking an exploration program on our mining lease at Calarie (Forbes). If this program successfully identifies economic reserves or ore, we propose to mine Calarie and transport the ore by road to the treatment plant at Parkes.
5. In June and July 1995 Hargraves, together with its consultants RW Corkery & Co Pty Limited ("Corkery"), explored the possibility of transporting ore by road from Hargraves' mining lease at Calarie to the mine for processing.
6. On 11 July 1995 the council wrote to Corkery in respect of that proposal and stated: Attention is drawn to Development Consent Condition No 5.1 for the Parkes Gold Mine which states: Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council. Council considers that other matters associated with the processing of Calarie Ore at the Parkes Gold Mine's plant can be adequately addressed by the existing development conditions for the Parkes Mine.
7. On 18 July 1996 the council wrote to the mine manager, copying the letter to Hargraves, noting the manger's advice that "mining activities at the London-Victoria Mine has ceased and processing will be completed by the end of October this year." Attention was drawn in the letter to condition 4.4 of the 1988 consent requiring the ownership of the water pipeline system supplying water to the site to be transferred to the council at the end of the mine's life, and it urged discussions to be held as soon as possible in this regard.

The 2009 Modification Approval

1. On 16 December 2008 Westlime lodged an application with the council to modify the 1988 consent for activity that comprised the "recommencement of extraction operations from the London Victoria Mine", being a use of the land for the purposes of an "extractive industry" ("the 2008 modification application").
2. A Statement of Environmental Effects prepared by Corkery and dated December 2008 ("the 2008 SEE"), noted that Westlime "seeks to recommence extraction activities within the Mine in an area adjacent to the existing extraction area. This material would be processed and blended with material sourced from other locations to produce a range of products for use for construction and agricultural purposes".
3. The 2008 SEE noted that the 1988 consent and the 2001 processing facility consent applied to the site. Moreover, that ML 1215 had been relinquished by the administrator of Hargraves following the Department of Primary Industries - Mineral Resources determination that rehabilitation of the lease area "had been adequately completed and the security bond returned to the leaseholder".
4. Under section 2.1 "Objectives and Approvals Sought" of the 2008 SEE, the proposed modification was described as: The purpose of the development would be to provide raw material for the Parkes Processing Centre to supplement raw material currently sourced from the Northern and Southern Overburden Emplacements. … It is asserted that the proposed modification would result in operations that are of a significantly smaller scale than currently approved under Development Consent 379/88 and, as a result, the proposed operation would be substantially the same as the approved operation. … The Applicant's primary objective is to obtain a source of raw material of suitable composition and fragment size for processing and blending with other materials within the Parkes Processing Centre to maintain the quality and consistency of the Centre's products and meet client demand for products with specific specifications.
5. The 2008 SEE further described the approval sought from the council to modify the 1988 consent as including new conditions 5.2 and 5.3, which were to provide that: Condition 5.2 - Up to 120,000t per year of material, being material not classified as a mineral under the Mining Act 1992, may be extracted from an area adjacent to the London and Victoria and Shaws Pits as described in the document titled "Statement of Environmental Effect to support an Application for a Modification of Development Consent 379/88 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008. Condition 5.3 - the safety bund may be relocated or upgraded as described in the document titled "Statement of Environmental Effects to support an Application for a Modification of Development Consent 379188 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008.

The 2012 Modification Approval

1. AEI subsequently lodged another application to modify the 1988 consent, as modified by the 2009 modification approval, on 1 May 2012 ("the 2012 modification application"). That application sought permission to import and export gold concentrate from the land to permit the "recommencement of mineral processing operations" at the mine, with the use of the land being for an "industrial" purpose.
2. Westlime's Background Paper in support of the 2012 modification application, dated March 2012, stated that ("the Background Paper"): 1. the modification was being sought to allow the recommencement of approved gold processing operations within the mine using mine infrastructure that was not currently being used. Specifically, the modification sought to permit the importation and processing of gold concentrate transported to the mine from mining operations elsewhere, including the Dargues Reef Gold Project. Permission for the following additional activities was therefore sought: 1. the transportation of gold concentrate by trucks to and from the mine; and 2. the construction and use of a new Tailings Storage Facility, namely, the Eastern Tailings Storage Facility, within the approved footprint of the Existing Tailings Storage Facility; 1. the scope of the 1998 consent as set out in the 1988 EIS permitted (at p 3): 2. Extraction of ore material from up to four open cuts. 3. processing of that material using an onsite processing plant comprising crushing and grinding, carbon-in-pulp and gold recovery circuits. 4. placement of waste rock into two waste rock emplacements. 5. placement of tailings into a tailings storage facility. 6. ancillary activities associated with the activities immediately referred to (at p 3). 7. Hargraves had operated the mine until its closure in 1996, after which the mine has been rehabilitated. The mine, including all land and infrastructure, was subsequently purchased by Westlime's predecessor, Western Red Quarries Pty Ltd and a development application for the Parkes Processing Centre had been prepared. That application sought approval for extractive industries and related processing operations, including use of the crushing and grinding components of the processing equipment from the mine to produce raw limestone materials sourced from a limestone mine sourced at Nelungaloo, located approximately 20km to the west of the mine, to produce a range of agricultural, industrial and civil engineering products (the 2001 processing facility consent); in 2009 an application was made by Westlime to modify the 1988 consent to permit extraction activities within the project site in an area outside the previously consented extraction areas. The material was to be processed and blended with material sourced from other locations at the Parkes Processing Centre. Accordingly, a new development consent was issued "superseding the original development consent" (the 2009 modification approval); 8. in 2011 Westlime was approached by Big Island Mining Pty Ltd ("BIM") with a proposal to recommence processing operations at the mine under the 2009 modification approval. An agreement was subsequently negotiated to permit BIM to lease a section of the mine and to use a section of the approved processing plant to treat up to 50,000 tonnes per year of gold concentrate imported from the Dargues Reef Gold Mine. That activity would require modification of the 2009 modification approval to permit importation of that material, for processing, as well as export of the tailings material should a market for that material be identified. Alternatively, the tailings material would be placed within a new storage facility located at the footprint of the approved Tailings Storage Facility; that the 1998 consent, the 2009 approval, and the 2001 processing facility consent applied to the mine; and that the London-Victoria Mine included the following approved components and activities under the 2009 modification approval (p 8): a mine development area which was developed into four open cuts, namely the Majors, London, Shaws and Victoria Pits. A processing plant, including a crushing and grinding circuit, Carbon-in-Pulp circuit and a gold recovery circuit. A process residue storage area (referred to hereafter as the Existing Tailings Storage Facility). Two overburden storage areas or emplacements. Associated infrastructure, including access roads, offices and maintenance and staff facilities 1. approved activities included the following (p 8): Mining of the open cuts using bulldozer ripping, following by excavator and front-end loader extraction, and drilling and blasting where required. Transportation of the overburden via haul truck to two out-of-pit overburden storage areas. In-pit placement was also approved to minimise haul distances contingent on not sterilising future reserves. Transportation of the ore via haul truck to ore stockpile adjacent to the processing plant. A processing plant operating 24 hours per day, seven days per week including crushing, screening, grinding and milling and treatment using a Carbon-in-Pulp (CIP) plant. Heap leach processing on specially prepared pad was also approved. 1. prior to the establishment of the Parkes Processing Centre, the processing plant comprised the following (p 11): A 50t capacity dump hopper and scalping screen. All ore to be processed was placed either directly into this hopper or reclaimed from run-off-mine (ROM) stockpile area. A 250 tonne per hour (tph) capacity primary jaw crusher, 400 tph impact crusher and two tertiary crushers (a 200tph barmac impact crusher and a 200tph cone crusher), together with associated screens and a radial stacker. A 1 500t capacity fine ore bin. A 10t capacity secondary hopper. A ball mill to wet grind the fine ore to a nominal 0.075mm. A series of process and reagent tanks in which the gold was extracted from the ground ore slurry using the Carbon-in-Pulp process. A gold room. A cyanide storage shed. 1. that the following modifications to the 2009 modification approval would be required, namely (pp 15 and 16): Condition 1 Undertake the development in accordance with 1. Development Application and associated Development Consent 379/88, including the accompanying Environmental Impact Statement prepared by BHP Engineering dated May 1988: 2. Development Application No DA08167 and the accompanying Statement of Environmental Effects prepared by RW Corkery & Co. Pty Limited dated December 2008; and 3. the following conditions. 4. Purpose - for the avoidance of doubt in relation to the application Development Consent 379/88. 5. Condition 23 6. Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council. 7. Material for processing may be transported to site via Hartigan Avenue, London Road and Blaxland Street at a maximum rate of 50 000t per year. 8. Condition 23A 9. Processed material may be transported from the site via Blaxland Street, London Road and Hartigan Avenue at a maximum rate of 50 000t per year. 10. in addition to the presently approved operations at the mine, Westlime proposed to undertake the following (p 17): Transportation of up to 50 000t material per year to the Project Site for processing. Transportation of up to 50 000t tailings from the Project Site per year for sale. Minor modifications to the CIP plant to permit material to be loaded directly rather than via the existing ball mill. Construction or upgrading of ancillary infrastructure, including: 1. a separate Tailings Storage Facility within the footprint of the approved facility; 2. a concentrate storage shed and loading facility; and 3. an access road. 4. although Westlime held Environment Protection Licence 11553 permitting land based extractive activity (50,000 - 100,000 tonnes obtained) and crushing, grinding or separating (100,000 - 500,000 tonnes processed), it did not permit "mineral processing" which was a scheduled activity under Schedule 1 of Protection of the Environment Operations Act 1997. As a result, a modification to that Licence, or a new licence, would be required.

… 14. Provide Council with staged rehabilitation plans for areas disturbed under the modification prepared by RW Corkery & Co Pty Ltd. 15. Appropriate mine closure measures, including the submission of a Mine Closure Plan to Council, shall be put into place prior to the closure of the mine. … General 23. Deleted

Issues for Determination

1. This proceeding challenges the validity of the 2009 and 2012 modification approvals on four substantive grounds.
2. By agreement between the parties, the issues for determination by the Court are: 1. first, whether the 1988 consent was exhausted or spent such that it could not be modified pursuant to s 96 of the EPAA as at 21 April 2009 (the 2009 approval). AEI argued that upon the land being declared to be rehabilitated and the bond released, the carrying out of development in accordance with the 1988 consent was complete, and therefore, the 1988 consent could not be modified in 2009 (ground one of the points of claim); 2. second, whether the council erred in law in granting the 2012 modification approval because in doing so it failed to have regard to the 1988 consent for the purposes of s 96(2) of the EPAA (ground two of the points of claim); 3. third, whether s 96(2) of the EPAA, empowering the council to grant the modification approvals, gives rise to a jurisdictional fact that the development to which the consent as modified relates, is in fact substantially the same as the development the subject of the consent originally granted. If the answer is "yes", whether, in respect of the 2012 modification approval, the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted in the 1988 consent (ground three of the points of claim); 4. fourth, whether the council's decision to issue the 2012 modification approval was manifestly unreasonable insofar as no reasonable consent authority acting reasonably could have concluded that the development as modified by the 2009 modification approval and the 2012 modification approval, was substantially the same as the 1988 consent, as required by s 96(2) of the EPAA (ground four of the points of claim); and 5. fifth, if the council's decision to grant either the 2009 or the 2012 modification approvals was infected with error, whether the grant of relief sought in the amended summons is appropriate, and in particular, whether an order setting aside and/or restraining Westlime from acting upon or pursuant to the 2009 and 2012 modification approvals should be made.

Legislative Framework Governing the Proceeding

1. Section 76A(1) of the EPAA governs the carrying out of development and states as follows (emphasis added): 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.
2. Section 91 of the EPAA (as it stood at the time the 1988 consent was determined) was relevantly in these terms (emphasis added): Determination of development application 91. (1) A development application shall be determined by - (a) the granting of consent to that application, either unconditionally or subject to conditions; or (b) the refusing of consent to that application. ... (3) A condition may be imposed for the purposes of subsection (1) if it - (a) relates to any matter referred to in section 90 (1) of relevance to the development the subject of the consent; (b) requires the modification or surrender of a consent granted under this Act or a right conferred by Division 2 in relation to the land to which the development application relates; (c) requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates); (d) limits the period during which development may be carried out in accordance with the consent so granted; (e) requires the removal of buildings and works (or any part thereof) at the expiration of the period referred to in paragraph (d); (f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90 (1) applicable to the development the subject of the consent; (g) modifies details of the development the subject of the development application; or (h) is authorised to be imposed under section 94.
3. The power to modify development consents is contained in s 96(2) of the EPAA and relevantly provides that: 96 Modification of consents-generally (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

Evidence of the Parties

1. AEI relied on the evidence of Mr Hetherington and Mr Brian Loche. Mr Russell Hetherington is the director of Hetherington Expiration & Mining Title Services Pty Ltd ("Hetherington"). Mr Loche is a director and AEI.
2. In his affidavit, sworn on 28 April 2014, Mr Loche stated that: 1. he was not aware of the terms of the 2009 modification approval until that document was provided to his lawyers by the council's lawyers sometime in or around December 2013 or January 2014; 2. furthermore, he did not become aware of the proposed reactivation of the mine until he read a public announcement concerning it by the mining company Cortona. It was following that publication that he instructed Mr Hetherington of Hetherington to prepare a submission in relation to the 2008 modification application; 3. AEI is the holder of EL 7242. EL 7242 covers the whole of the area of the mine; 4. since obtaining EL 7242, AEI has: 1. flown over the mine pit to assess the gold in the mine pit; 2. engaged geologists to assess the mineralisation within the mine; 3. analyse previous drill holes; 4. made attempts to enter into an access agreement with Westlime to explore the ground of the mine; and 5. prepared documentation for the purpose of making an application for an assessment lease; 1. based on the annual reports in respect of EL 7242, AEI had spent $438,740 on that licence; 2. he expects that by digging an additional 20 metres into the open pit of the mine, mineral extraction of $18 million profit is achievable and that at the time of swearing his affidavit, that there was over $185 million of gold within the mine. This figure did not include any gold that may reside in the tailings dam and overburden from previous mining operations.
3. Mr Loche was cross-examined by counsel for both Westlime and the council. The cross-examination revealed that: 1. only a very small portion of the $438,740 was spent in relation to on ground exploration or in field exploration on Westlime's land (T26.30); 2. AEI has not actually carried out any drilling itself on the land (T28.45-29.05); 3. as at June 2011 Hetherington was engaged on AEI's behalf to make enquires of the council in relation to Westlime's planning approvals. In this respect, Hetherington acted as AEI's agent (T30.40); 4. no mining lease application has been lodged over the land covered by EL 7242 (T36.05); 5. the application to renew EL 7242 had not yet been determined (T37.25); 6. the amount of funds that AEI had allocated for on the ground drilling had been wholly consumed by the litigation (T37.85); 7. AEI had not applied to have the dispute arbitrated under the Mining Act (T38.05); 8. the land access agreement sent to Westlime by AEI was nothing more than the standard form template for a land access agreement suitable for agriculture (T40.30); 9. AEI did not respond to or engage with Westlime's requirements issued in January 2012 in respect of land access (T42.10); 10. AEI was "obviously … a long way from actually mining this stuff" (T43.11); 11. AEI has not signed any contracts for drilling on Westlime's land (T44.25); 12. AEI had not analysed the tailings and the overburden, and therefore, it was not in a position to comment whether or not it has any gold content (T50.24); 13. Mr Loche expected to be kept informed of any planning approvals Mr Hetherington became aware of, including a copy of the 2009 modification approval that Mr Hetherington obtained in June 2011 (T53.10); and 14. EL 7242 had currently expired but was the subject of a further late renewal. However, it was the relevant Department's intention to refuse the application (T55.43).

Was the 2009 Approval Invalid Because the 1988 Consent Was Spent?

1. AEI conceded that the 1988 consent was neither abandoned, nor surrendered, and that it had not lapsed. Rather, the issue was framed as whether, as a matter of interpretation, and having regard to ss 76A(1) and 96(2) of the EPAA, the 1988 consent had reached the end of its life, and therefore, could not authorise the "carrying out" of any development, and hence, could not be the subject of a modification application.
2. In essence, the submissions of AEI were two-fold: 1. first, that the 1988 consent was for the "operation of an open cut gold mine and ore treatment plant to extract gold" subject to conditions. Those conditions (in particular, conditions 3.7, 3.14, 3.16 and 4.4) made it clear, as a matter of construction, that the consent was for a limited period of time, namely, "the life" of the mine, which in turn was limited by the activities carried out at the mine itself, such activities having ceased prior to the 2009 modification approval; and 2. second, because the 1988 consent only authorised the carrying out of development for the life of the mine, after the mine had ceased no person could "act on" (using the language of s 96(2) of the EPAA) the consent because there was nothing left to be "carried out in accordance with the consent" (using the language of s 76A(1)(b)).

The Principles of Construction of Development Consents

1. The principles of construction of development consents are well known and may be summarised as follows: 1. consents are to be construed, "not as documents drafted with legal expertise, but to achieve practical results" (Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 at [36] per Hodgson JA, Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]-[100] and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [80])); 2. consents are to be construed fairly and liberally, with the meaning of their text to be determined objectively, having regard to the context in which the consent was issued, and taking into account the fact that, unlike a contract, a consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as for the applicant (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23] and [37]-[41] per Mason P, Stein and Giles JJA agreeing and K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [23] per Meagher JA); 3. as a general rule, a development consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it (Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [42] and Bardsley-Smith Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 at [66]); 4. plans and other documents may be incorporated in a development consent expressly or by necessary implication (Allendale at [24], [43]-[48] and [153]-[163] and Bardsley-Smith at [66]); 5. a mere reference in a development consent to another document, such as a development application, will not usually be sufficient to incorporate that document into the consent (Allandale at [45], [157]-[158] and Bardsley-Smith at [67]). However, if a development consent expressly incorporates another document, or part of it, or if a document is attached to a development consents or referred to in it for the purpose of identifying or describing something dealt with in the consent, this will generally be sufficient for the purposes of incorporation (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 434, Allandale at [45] and Bardsley-Smith at [67]); and 6. the words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the development consent, and orthodox cannons of construction may require an alternative interpretation (Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252; at [28] per Biscoe J).

The 2009 Modification Approval is Valid

1. In my view, AEI's submissions cannot be accepted. My reasons are as follows. First, as a matter of construction, no specific end date was imposed by the conditions attached to the 1988 consent on the processing of gold ore under the consent, or for that matter, the operation of the open cut gold mine. Applying the principles of interpretation discussed above, it is plain that, in addition to granting consent for an open cut gold mine, the 1988 consent approved the operation of an ore treatment plant to extract gold on the land which was not limited to the processing of gold actually mined from the land. Therefore, even if the mine had ceased to yield gold, it was not correct to contend, as AEI does, that the 1988 consent was spent or exhausted as at 2009, such processing operations were able to continue into the future. This is a complete answer to the first ground of review.
2. This was evident not only from the terms of the 1988 EIS and the original development application as incorporated into the 1988 consent, but also as a stand-alone document from the terms of the 1988 consent itself.
3. Having said this, because all parties agreed that the 1988 EIS was incorporated into the 1988 consent (this was manifest in Westlime's written and oral submissions and was accepted by the council in oral argument: T161.01) I was not asked to determine this issue. Had I been called upon to do so, it is not certain absent full argument, in conformity with the authorities in Allendale and Bardsley-Smith, that I would have reached the same conclusion as that of the parties. For the purpose of this ground, however, result is nevertheless the same.
4. It is true that conditions 2.1, 3.5, 3.14 and 4.4 of the 1988 consent all required things to be attended to at the end of the life of the mine or development or during the operation of the mine, but these conditions are not, of themselves, inconsistent with the processing of ore occurring from time to time into the future. Put another way, conditions referring to "the end of the mine life", "the end of the development", or "the end of the project", are consistent with the objective contemplation of future mining and processing activity at the site, with no necessity that such activity be continuous or uninterrupted.
5. At their absolute highest, these conditions placed a vague and inchoate temporal limitation on the development but not a temporal limitation on the development consent granted in 1988 (Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 per Lloyd J at [16] quoted below).

Did the Council Have Regard to the 1988 Consent When Determining the 2012 Modification Approval?

1. This ground of review only applies to the 2012 modification approval and not to the 2009 modification approval.
2. In short, AEI submitted that in approving the 2012 modification application the council failed to have regard to the 1988 consent in order to determine whether the development, as proposed in the 2012 application, was "substantially the same development as the development for which consent was originally granted and before that consent was as originally granted was modified (if at all)" (s 96(2)(a) of the EPAA). Rather, it was contended that the council only had regard to the consent as modified by the 2009 modification approval.
3. AEI, as the applicant for relief, bears the onus of establishing error on administrative law grounds (Minister for Local Government v South Sydney City Council [2012] NSWCA 288; (2002) 55 NSWLR 381; at [164] per Mason P). As has been often observed (Parramatta City Council v Hale (1982) 47 LGERA 319 per Moffit P at 345): Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person who seeks under s 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. The responsibility to make the consent determination is given to a reasonable authority which will normally be a council democratically elected. The court exercising jurisdiction under s. 123 does not sit on appeal from its determination. A conclusion by a court finding a breach of s. 90 by way of inference is one to be come to only after anxious consideration, but, when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn.
4. It was not in dispute that in undertaking the comparative exercise demanded by s 96(2) of the EPAA, as a precondition to the exercise of the council's discretionary power to permit the proposed modifications in 2012, the council was mandatorily required to have regard to the 1988 consent.
5. Having said this, it must be observed that it was not unlawful for the council, in determining the 2012 modification application, to also have regard to the 2009 modification approval, provided that the actual comparison exercise carried out referenced the unmodified 1988 consent. Nothing in either s 76A or s 96(2) of the EPAA made the 2009 modification approval an impermissible irrelevant consideration. In order to ascertain the development the subject of the consent as originally granted, a consent authority will as a matter of necessity have to distinguish between the original consent and later modifications.

Whether s 96(2)(a) of the EPAA Gives Rise to an Objective Jurisdictional Fact as to the Council's Satisfaction that the Developments Were Substantially the Same

1. As a preliminary issue to AEI's principal submission under its third ground of review, namely, that the council erred in concluding that the development as modified in 2012 (not 2009) was substantially the same as that consented to in 1988, AEI argued that the question of whether or not the development was substantially the same was an objective jurisdictional fact that the Court had to determine for itself. If the Court cannot determine for itself whether the development was substantially the same, then AEI's complaint is essentially one directed to the merits of the council's decision, which, given that AEI does not seek to impugn the existence of the state of satisfaction arrived at by the council in approving the 2012 modification application, will be (subject to the fourth ground of review, viz, manifest unreasonableness) unassailable in these judicial review proceedings (Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1).
2. Both Westlime and the council asserted that the decision by Jagot J in Bechara was determinative authority for the proposition that the formation of the requisite opinion in s 96(2)(a) is a matter for the original decision-maker, and not the Court.
3. In Bechara, in respect of s 96(1A)(b) of the EPAA (where an identical statutory formulation to that contained in s 96(2)(a)), Jagot J held that (at [42] and [46]): 42 Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475, characterised the gateways through which an applicant for modification had to pass as "narrow". Although the section was subsequently amended, the provision requiring the consent authority to be satisfied that the modified development would be "substantially the same" remained, and unquestionably is a constraint on the power of a consent authority. It is a constraint expressed, however, not by reference to an objective fact, but to a state of satisfaction of the consent authority, in this case Mr Robinson as the Council's delegate. That feature of the statutory scheme does not immunise the decision from judicial review. The required state of satisfaction must be formed absent any material misdirection in law and must be reasonably open in the particular circumstances. In this context, see the review of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] to [137]. Mr Robinson said that he formed the required state of satisfaction in terms. Pointing to one paragraph in his report describing the additional level as significant, does not establish that Mr Robinson asked the wrong question or gave an incorrect meaning to the statutory test. … 46 Finally, provided the decision maker addresses the correct question (is the development to which the consent as modified related substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)), the range of facts relevant to the answer to that question is left to the decision-maker. Minds may reasonably differ about those facts.

Whether the Decision to Grant the 2012 Modification Approval Was Manifestly Unreasonable

1. AEI submitted that because the consent as modified by the 2012 modification approval was not substantially the same as the 1988 consent, the decision to grant the 2012 modification approval was manifestly unreasonable insofar as it was patently not open for the council, acting reasonably, to attain the state of satisfaction required under s 96(2)(a) of the EPAA.
2. The principles applicable to review for Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 234 and 235 per Lord Greene MR) have been well traversed.
3. Although subsequently endorsed and entrenched in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332), the concept of manifest unreasonableness is not new. As the plurality in Li observed, a standard of reasonableness in the exercise of any discretionary power conferred by the legislature was demanded well before the decision in Wednesbury (at [64]-[66]).
4. In Li, French CJ described the operation of principle in the following terms (at [26]): 26 The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute…
5. But his Honour sounded this note of caution (at [30], and see a similar sentiment expressed in the joint judgment of Hayne, Kiefel and Bell JJ at [66]): 30 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."

Legal Principles Governing the Power to Modify in s 96(2) of the EPAA

1. The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: 1. first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); 2. the modification power is beneficial and facultative (Michael Standley at 440); 3. the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); 4. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); 5. the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); 6. the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); 7. the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); 8. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); 9. the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and 10. a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]).

Discretion to Order Relief

1. Because AEI has been unsuccessful in establishing any of the grounds of review raised in the amended summons, it is strictly unnecessary for the Court to determine the appropriateness of the relief sought by it in the amended summons. In particular, it is unnecessary to decide whether the Court should, in the exercise of its discretion under s 124 of the EPAA, set aside the 2009 or 2012 modification approvals and grant injunctive relief restraining Westlime from acting pursuant to them. However, for the sake of completeness and in case I have erred in making any of the findings above, I shall proceed to deal with this issue.
2. AEI submitted that if the declarations sought by it were granted, then the remaining relief ought to follow because recent investigations suggested that there were significant deposits of gold in relation to which AEI has the benefit of an exploration licence burdened by the 1988 consent as modified.
3. Both Westlime and the council argued in reply that in respect of the 2009 and 2012 modification approvals the Court should not, in the exercise of its discretion, order this remaining relief because of: 1. first, the delay by AEI in seeking relief in respect of both modification approvals, especially the 2009 modification approval; 2. second, the potential prejudice to Westlime if, given the effluxtion of time, the 2009 modification approval was set aside and the restraint issued; and 3. third, there would be no real prejudice to AEI if the relief was denied.
4. The principles guiding the exercise by the Court of its discretion to grant relief under s 124 of the EPAA are well known and have been expounded upon in a number of cases (Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339-341, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82, Botany Bay City Council v Saab Corp at [149] and Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 at [74]-[75] and [82]-[83]). It is not necessary to presently repeat them, but they are relied upon for the purposes of the reasons below.
5. I endorse the submissions of the respondents in relation to the relief sought in respect of the 2009 modification approval and would, were it necessary to resolve the issue, refuse to set aside that modification approval and refuse to restrain Westlime from acting on or pursuant to it.

Orders

1. In conformity with the reasons given above, the orders of the Court are as follows: 1. the amended summons is dismissed; 2. the applicant is to pay the first and second respondent's costs of the proceedings; and 3. the exhibits are to be returned.

Amendments 13 July 2015 - Coversheet - hearing dates added 17 July 2015 - reformatted table of contents and removed duplicate paragraph numbering in [15] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 July 2015