BARRICK AUSTRALIA LTD v WILLIAMS [2009] NSWCA 275 | Case summary

(a) increasing the volume of material extracted from the mine by 53 million tonnes of ore; (b) increasing production rates from 6.9 to 7.4 million tonnes per year; (c) increasing the number of employees from 200 to 315; (d) extending the life of the mining operation by 11 years, and (e) increasing the scope of the infrastructure at the mine. 9 Counsel for Mr Williams emphasised the degree to which the proposed changes potentially entailed adverse environmental consequences. These consequences, he contended, should have attracted the obligation to conduct an environmental assessment, as they would have done, if part of a new project. However, the degree to which these consequences should properly have been anticipated, together with their characterisation as potentially different in kind and degree from the consequences of the existing operation, were matters in dispute. 10 Importantly for present purposes, the appellant argued that this was not a dispute properly resolved by a court. To the extent that there were limits on the powers of the Minister to approve a proposed modification, the EP&A Act intended that the relevant assessment should be made by the Minister, rather than the Court. In legal terminology, the matters raised by Mr Williams did not give rise to a question of jurisdictional fact, upon the satisfaction of which the statutory power of approval vested in the Minister was contingent. 11 It is convenient to consider the appellant's argument with respect to jurisdictional fact, before entering upon a detailed consideration of the factual issues. Indeed, the resolution of that aspect of the appeal may render unnecessary consideration of the precise scope of the limitations imposed under s 75W and other issues identified above. The appellant's submissions in this respect are correct and it is appropriate to consider immediately why that is so. Power to determine scope of request 12 Although it is necessary to understand s 75W in its statutory context, primary consideration is required to be given to the text of the section, which provides: " 75W Modification of Minister's approval (1) In this section: Minister's approval means an approval to carry out a project under this Part, and includes an approval of a concept plan. modification of approval means changing the terms of a Minister's approval, including: (a) revoking or varying a condition of the approval or imposing an additional condition of the approval, and (b) changing the terms of any determination made by the Minister under Division 3 in connection with the approval. (2) The proponent may request the Minister to modify the Minister's approval for a project. The Minister's approval for a modification is not required if the project as modified will be consistent with the existing approval under this Part. (3) The request for the Minister's approval is to be lodged with the Director-General. The Director-General may notify the proponent of environmental assessment requirements with respect to the proposed modification that the proponent must comply with before the matter will be considered by the Minister. (4) The Minister may modify the approval (with or without conditions) or disapprove of the modification. (5) The proponent of a project to which section 75K applies who is dissatisfied with the determination of a request under this section with respect to the project (or with the failure of the Minister to determine the request within 40 days after it is made) may, within the time prescribed by the regulations, appeal to the Court. The Court may determine any such appeal. (6) Subsection (5) does not apply to a request to modify: (a) an approval granted by or as directed by the Court on appeal, or (b) a determination made by the Minister under Division 3 in connection with the approval of a concept plan. (7) This section does not limit the circumstances in which the Minister may modify a determination made by the Minister under Division 3 in connection with the approval of a concept plan." 13 There are aspects of this provision which cast doubt on the precise scope of the intended approval mechanism. However, and despite the apparently open terms in which it is expressed, the parties accepted that sub-s (4) did not give the Minister an untrammelled power to modify the approval, but only to act upon a request by the proponent of the project, pursuant to sub-s (2). This conclusion flows in part from the second limb of sub-s (4), which envisages a "modification" existing separately from the Minister's decision to "disapprove of" it. Despite the semantic inconsistency, it is therefore correct to treat the subject matter of consideration under s 75W as limited to a "request" by a proponent, to modify an existing approval for a project: sub-s (2). The request is to be "lodged" with the Director-General, from which it may readily be inferred that it is to be in writing. There are, accordingly, basic procedural requirements which must be complied with. 14 Further, at least implicitly, the Director-General is required to assess the "proposed modification" and to notify the proponent of any requirements as to environmental assessment: sub-s (3). It follows that there must be sufficient detail in the request, first, to allow the required modifications to be made, in a form appropriate to a development approval, and, secondly, to allow the Director-General to identify potential environmental consequences. 15 The next question is whether the concept of "modification of approval" contains its own limitations. The definition of that phrase in sub-s (1) refers to "changing the terms" of the Minister's earlier approval and, relevantly for present purposes, "revoking or varying a condition of the approval or imposing an additional condition of the approval": sub-s (1)(a). (Paragraph (b) deals with approvals of "concept plans" which are separately addressed in Pt 3A.) Because the definition is inclusive, it is clearly not limited to a change in the conditions of an approval; nevertheless, it must involve "changing the terms of" the approval. 16 In one sense, a reference to terms of approval may be thought to be restricted to conditions imposed by the Minister and to be complied with in carrying out the proposed project. In another sense, the terms of the approval can be understood to include all aspects of the project which form the subject of the approval. 17 Support for the broader construction may come from several sources, although the semantic imprecision of the drafting makes reliance on any one or more indications inconclusive. First, the definition of "modification of approval" is said to include changes in the conditions, suggesting that it is not limited to the conditions. Secondly, there is express acceptance that the Minister's approval is not required for a modification if "the project as modified" is consistent with "the existing approval": sub-s (2). This language implies that it is the project which may be modified, and not merely conditions to which it is subject. To describe the project as "consistent with" the existing approval must mean that the carrying out of the project (which is the matter the subject of approval according to the definition of "Minister's approval" in sub-s (1)) will comply with the terms of the approval, despite the modification of the project. 18 One final internal indicator as to what was envisaged as falling within the terms of the section is the indirect obligation imposed on the Minister to determine the request within 40 days after it is made, failure to comply with which time limit will permit the proponent to seek a determination of the request by the Land and Environment Court: sub-s (5). While the lapse of the prescribed period is not described as resulting in a deemed refusal, the limitation nevertheless has the statutory consequence of permitting the proponent to have the matter determined by the Court: cf s 82(1), which concerns a failure by a consent authority to determine a development application within the prescribed period, for the purposes of Pt 4 of the EP&A Act. 19 If the 40 day period is to be taken as an indicator of the nature of the modifications which may be sought under s 75W, it suggests a constrained view of the scope of the provision. The power of the Director-General to require a level of environmental assessment, which must be complied with "before" the request is considered by the Minister, is liable to render all but the most minor amendments and cursory environmental assessment impossible in practical terms, within the period specified. 20 Counsel for Mr Williams argued that the timetable was consistent with a limited concept of modification, taking into account that the effect of an approved modification would be to permit the carrying out of a project, aspects of which had not been the subject of mandatory environmental assessment, consultation and report under ss 75F-75I. While the Director-General has power to direct environmental assessment under sub-s (3), that power is, it was noted, discretionary and, even where invoked, does not pick up the requirements of the earlier provisions which apply to a new project. 21 The purpose of the present analysis is not to identify with any degree of precision the scope of any restraints imposed on the power to modify under s 75W, but rather, assuming that such constraints exist, to consider on whom lights an obligation to address those constraints. Unless they constitute objective factors to be determined by a court, their consideration must lie within the factors to be considered by the Director-General or the Minister, or both. In the latter class of cases, judicial review will be limited to determining whether an officer's acceptance that a particular request falls within the terms of s 75W, is an opinion reasonably open in the circumstances. 22 So far as the jurisdictional issue was concerned, the appellant argued that weight should be placed upon the underlying purpose and mechanism adopted in Pt 3A and the differences in approach to the handling of development applications generally, in Pt 4. 23 The critical mechanism for approving major infrastructure projects was the vesting of the power of approval in the Minister. That, it was contended, was deliberately accompanied by a degree of flexibility as to the circumstances in which the power of modification could be exercised. By contrast, under Pt 4, a consent authority (usually a local council) is empowered to modify a consent in quite limited circumstances: EP&A Act, s 96. With the exception of minor errors, misdescriptions and miscalculations (see s 96(1)), modification by a consent authority requires it to be satisfied that the development to which the consent as modified relates is "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)": sub-ss 96(1A) and (2). Both the appellant and the Minister contended that it would erroneous to seek to impose by implication some similar constraint on the power of modification granted to the Minister under s 75W. 24 In Pt 4 the tight constraints imposed on modification of development consents were contained within a criterion which involved the satisfaction of the consent authority: there is no indication that "substantially the same development" was an objective test to be applied by the courts. It was submitted that, in circumstances where a more flexible approach was adopted and where the consent authority was the Minister, it was for the Minister to be satisfied that the request fell within the scope of s 75W. 25 Senior counsel for Mr Williams directed attention to four contrary indications, namely (1) the absence of any textual indication requiring that either the Director-General or the Minister form a relevant opinion as to the scope of the request; (2) the fact that the Minister is excused by s 75X(3) from giving reasons to the proponent for his or her decision; (3) the potential for such a decision to have significant environmental consequences and (4) the absence of any standards according to which the accountability of the Minister (whether in political or legal terms) may be assessed. These factors, taken cumulatively, were said to favour the conclusion that Parliament did not intend such significant issues to remain in the largely unreviewable discretion of the Minister. 26 Where a power is said to depend upon, not the existence of a contingency, but the satisfaction of the decision-maker as to the contingency, the jurisdictional fact will be the relevant state of satisfaction: Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [127]-[137]. Where there is no such express legislative statement, an inference may be drawn from surrounding provisions and from the nature of the contingency. Thus, if the contingency is something which the administrative decision-maker is required to investigate, it is more likely that the jurisdictional fact is the state of satisfaction of the officer: Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 at 324-326 (Mason JA, Moffatt JA agreeing). Similarly, if the matter is one requiring evaluative judgment, it is more likely that the legislature intended that the officer form an opinion as to the contingency, rather than that the power be engaged only where the objective facts are established: cf Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [61]-[64]. By contrast, an intention to establish a jurisdictional fact, to be determined objectively, may be found where the precondition to the exercise of the power is distinct from the matters to be addressed in exercising the power and can thus be characterised as "an essential preliminary to the decision-making process": Timbarra at [52], referring to Colonial Bank of Australasia v Willan (1874) 5 PC 417 at 443; Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707 at [46]-[49]; cf Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [4.305]. 27 The final ground raised by the appellant sought to rely upon the fact that the proceedings challenging decisions made under Pt 3A were not commenced within three months after public notice was given and hence were protected by the privative clause contained in s 75X(4). Whatever the scope of the privative clause, the fact that it only operates from three months after the decision was publicly notified, means that it provides little assistance in respect of this question of statutory construction. By contrast, s 75X(5) provided: "(5) The only requirement of this Part that is mandatory in connection with the validity of an approval of a project … is a requirement that an environmental assessment with respect to the project is made publicly available under section 75H …." 28 A provision in these terms may be understood as a statutory indication that a failure to comply with a requirement of Pt 3A, other than the specified requirement, does not invalidate a decision. Whether that provision has consequence for the present argument must, however, be put to one side as no party relied upon it. Presentation of argument on jurisdictional fact issue 29 As noted above, the primary focus of the appeal was the proper construction of the terms of s 75W and particularly the meaning of "modification of approval". In particular, the appellant challenged the finding of the primary judge that a proposal which involved a "radical transformation" of the project did not fall within the Minister's power under s 75W to modify the terms of an approval. The second ground was directed to the proper characterisation of the appellant's proposed modification of the approval. 30 The third ground was more obscure. It was directed to the primary judge's rejection of the appellant's submission that relief would in any event be premature: at [66]. His Honour had concluded: "A request to 'modify' is an essential precondition to the validity of a s 75W approval. If the E42 Modification Request does not satisfy the criterion of a request to 'modify', in my opinion a Ministerial approval of the E42 Modification Request would be no approval at all …. Moreover, as the E42 Modification Request does not fall within s 75W, the important environmental assessment and Ministerial approval regime in ss 75F to 75J would apply to the proposal." 31 Counsel for the appellant noted the reference to "an essential precondition" in the first sentence of the passage set out above, as picking up an earlier conclusion in the following terms at [53]: "A request to 'modify' may be classified as a 'jurisdictional fact', an expression generally 'used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question': Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; [236 CLR 120] at [43]. … A jurisdictional fact is one that the Court must decide for itself on the evidence before it …." 32 Whether the appellant or the Minister presented cases before the primary judge which focused squarely upon the issue now being presented may be doubted. Unsurprisingly, there appears to have been no challenge to the proposition that a procedural precondition to the modification of an approval was the lodging of a request by the proponent. Further, there can have been little room for debate that both purpose and statutory context more generally limited what might fall within the concept of a request for the purposes of s 75W. What seems not to have been squarely addressed was on whom the power to determine that question was conferred. Rather, that question was raised obliquely by the appellant's suggestion that relief would be premature, because it was open to the Minister to grant only so much of a request as fell within the terms of s 75W. 33 That issue, in turn, appears to have been obscured by reference to authorities concerning whether there was required to be a "valid" development application. Thus the appellant relied, both in this Court and in the Court below, upon remarks of Spigelman CJ (with whom Sheller JA and Foster AJA agreed) in Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223 to the following effect: "34 In my opinion, there is no basis for inferring a prohibition from a permissive and procedural scheme. Where the application is made to a body which is not a relevant consent authority (as in Chambers v Maclean Shire Council (2003) 126 LGERA 7) then the application is of no legal effect. That does not mean that all applications, not finally disposed of, can never have legal effect. If the law changes, so can the efficacy of the application. 35 I see very little, if any, scope in this legislative scheme for the concept of a 'valid' application. Citizens are entitled to apply to authorities for whatever they like. The relevant prohibition in the legislative scheme is found in s 76A, which prohibits development without consent, where an environmental planning instrument provides that development may not be carried out except with consent. There is no relevant prohibition, express or implied, which impinges upon the application making process." 34 These remarks should be read in context. They were made in response to a submission that the application in question sought consent for prohibited development: at [30]. Nevertheless, the remarks remain pertinent in that the concept of "invalidity" as applied to a permissive process, may be considered unhelpful. If the statute requires an application in writing signed by or on behalf of the applicant, it is possible to describe an oral application as "invalid", but more helpful to say that an essential precondition to the exercise of the statutory power has not been engaged, because no application in compliance with the statutory criteria has been made. In Timbarra, the relevant section of the EP&A Act required that, in specified circumstances, a development application was to be accompanied by a species impact statement. The absence of such a statement did not necessarily render the application "invalid", but it did mean that an essential precondition to the exercise of the power to grant consent had not been satisfied. 35 Before this Court, the submissions expressly put the appellant's case on the basis that an assessment of whether the request fell within the terms of s 75W was a matter for the opinion of the Minister and, if that opinion was not vitiated by legal error engaging the Court's power of judicial review, that precondition would be satisfied. 36 The consequence of this conclusion is not that the challenge sought to be raised by Mr Williams was beyond the scope of judicial review, but rather that he needed to assay a higher hurdle, namely that, to the extent that the steps taken in respect of the request so far demonstrated acceptance by the Minister of the request falling within the terms of s 75W, that view was not reasonably open on the facts. That task was not, however, undertaken by Mr Williams before the primary judge and this Court was not invited to embark upon such an exercise; nor would it be appropriate to do so. 37 There was no complaint made by counsel for Mr Williams as to the presentation of this argument on the appeal. He accepted that the point was open but sought to reject the argument by reference to the terms of s 75W, distinguishing it from the general procedure for development applications dealt with under Pt 4 of the Act. That was because both the Director-General (in determining what environmental assessment was required) and the Minister had separate, if inter-dependent, powers to be exercised sequentially. In other words, the Director-General might decide not to require environmental assessment because he or she had formed the view that so much of the request as fell within s 75W did not require it and that so much of the request as did require assessment fell outside the scope of the section. If the Minister took a different view, the statutory scheme would be subverted in a significant respect. Resolution of jurisdictional issue 38 The preferred construction of s 75W is that it confers on the Minister an implicit obligation to be satisfied that the request falls within the scope of the section. There are a number of reasons for reaching that conclusion. 39 First, the absence of express reference to the satisfaction or opinion of the Minister in this respect is explicable, otherwise than as an indication that the question was one for determinative resolution by a court, because the section did not identify the scope of the request as a precondition to the exercise of the power. That precondition was itself to be extracted by a process of inference discussed above. The contrast with other provisions in the EP&A Act referring to a relevant state of satisfaction is therefore of limited consequence. In s 96, for example, reference to the satisfaction of the consent authority accompanies identification of specific requirements permitting modification of a development consent. Had s 75W expressly identified the nature of the relevant request or the preconditions to approval, it would have been highly significant if it failed to indicate that a particular Minister or officer was to be satisfied as to those requirements. 40 Secondly, the fact that there are no express standards to be applied in considering whether a particular request falls within the terms of the section itself gives rise to an inference that no essential precondition to the consideration of a request was intended. 41 Thirdly, on any formulation of the limits of an appropriate request, an evaluative judgment is required as to the scope of the modifications for which the Minister's approval is sought. That will involve not merely noting changes to the description of the project, but consideration of the environmental consequences. These are matters which will fall squarely within the assessment and investigation to be undertaken by the Minister and by the Director-General. 42 Fourthly, although it is true that the section confers different functions on the Minister and the Director-General, with the possibility of inconsistent approaches, there is no reason to suppose that Parliament feared, or would have sought to avoid, such possible consequences. On the contrary, the differing functions reflect roles appropriate to each office holder, who may be expected to co-operate. Thus, the Director-General is the senior officer of the Department which will advise the Minister in relation to approval or disapproval. Other issues 43 As already noted, the primary challenge by the appellant was to his Honour's conclusion that the proposed changes amounted to a "radical transformation of the terms of the existing development consent" and therefore fell outside the scope of s 75W: at [62]. So far as the factual assessment is concerned, once it is accepted that this was (or rather will be) a matter for the Minister, it would be inappropriate for this Court to embark upon its own assessment of those factual matters. Secondly, it is strictly unnecessary to embark upon the anterior question as to the proper construction of "modification of approval" in s 75W. Nevertheless, the Minister and the Director-General invited the Court's attention to those issues. Although neither appealed from the judgment in the Land and Environment Court, perhaps mindful of the limits imposed by R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13, they supported the appellant's submissions as to error on the part of the primary judge. 44 There were a number of steps in the appellant's submissions in relation to the question of statutory construction. First, the appellant contended that his Honour had relied upon reasoning of this Court in relation to an earlier provision relating to modification of development consents in Pt 4 of the EP&A Act: see North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 at 474. In that authority, Mason P noted that the essential meaning of the verb "modify", in the statutory context, meant "to alter without radical transformation", referring to Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 421. 45 To evaluate this challenge, it is necessary to note that the primary judge dealt in express terms with the differences between s 75W and the equivalent section in Pt 4 of the EP&A Act. Whether he drew the correct conclusions on the basis of such authority and the variation in statutory context is not a matter which need be pursued. 46 Secondly, the appellant complained that the primary judge had failed to give effect to the statutory definition of "modification of approval" in s 75W(1). By placing reliance in this context on the ordinary meaning of the word "modification" his Honour had committed, it was submitted, the very error which he had identified at [57], namely that it was "circular to construe the words of a definition by reference to the term defined", referring to The Owners of the Ship "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 419. While there may be circumstances where a statutory definition is not to be applied, because a contrary intention appears from the context, this was not such a case: cf Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297. However, even if that challenge were made good, there remained for consideration his Honour's discussion of the word "changing" as it appeared in the definition, with respect to the terms of the Minister's approval. Again, there is no longer any purpose in determining whether the allegation of error was made good. 47 Various consequentialist arguments were put before the Court in support of one view or the other. In favour of the view that the section intended a restricted scope for modification, reliance was placed on the importance given to environmental assessment and public consultation in relation to the approval of development generally: see EP&A Act, s 5, Objects and ss 75F-75I. To allow a broader scope for modification would be to encourage proponents to put forward for initial approval a limited development which could then be expanded through modification as circumstances required, so that the project as ultimately developed would never have been subjected to mandatory environmental assessment and public consultation. 48 The appellant noted that a restrictive construction of the concept of modification might not achieve the intended result in that it would encourage proponents to embark on a series of modest modifications for the same purpose, namely to avoid triggering the obligation to undertake mandatory environmental assessment and public consultation. 49 It is clear that such consequentialist arguments cannot be decisive, although they may give limited assistance in identifying the intention underlying the provision. Their relevance is likely to be limited because, on the one hand, such an approach may underestimate the willingness of the Director-General to require environmental assessment even for those modifications which fall within s 75W and, on the other hand they assume a degree of manipulation on the part of proponents, which may not have been treated as a realistic problem in drafting and enacting the legislation. 50 In the course of argument, senior counsel for the Minister suggested that there may well be a limit on the scope of a legitimate request under s 75W, based on the idea that the project which will be the subject of change under the proposal must be the same project and not a project which can properly be characterised as "new and different". Senior counsel for Mr Williams, in response, characterised that terminology as unhelpful. If there were to be change, the result would be something "different" and little assistance was to be derived from asking whether it constituted a "new" project. 51 There was force in these criticisms, both of the language adopted by the primary judge of "radical transformation" and the alternatives proffered by the Minister. Such difficulties are likely to arise with any descriptive phrase proffered by way of exegesis with respect to the statutory language. 52 There are two related reasons why this is so. First, the very concept of a project is amorphous in a sense which is not true of an object, such as a car. Although there will be circumstances in which it is not clear which descriptor applies, it is usually possible to distinguish between a modified vehicle and a replacement vehicle. By contrast, a project is, at least in part, a process and may be characterised or described from a variety of different perspectives. Secondly, because there are many varying uses of land, it is difficult to identify precise terminology which will apply across the broad range of potential projects. For these reasons, the Court should be wary of invitations to explain the statutory language. 53 The absence of precision in relation to what might constitute a modification of an approval has formed part of the reasoning for considering that the legislature did not intend that it be the subject of conclusive determination only by a court. As noted, the defined phrase means "changing the terms of an approval to carry out a project under this Part". Although that is defined to include changing a condition of the approval, there is no clear dividing line between that which may constitute a condition and that which may constitute an element of the underlying project. All that can usefully be said in the abstract is that the requirement for approval of a modification must be understood in the context of three factors. The first is that the subject matter of Pt 3A is defined by reference to major infrastructure developments, as identified by the Minister (or by a State environmental planning policy), as having State or regional environmental planning significance: s 75B. Secondly, the project is required to undergo environmental assessment and public consultation, of a kind not required of a modification. Construing s 75W in its context, it is clear that the modification of an approval was something intended to have limited environmental consequences beyond those which had been the subject of assessment. (Given the powers of the Director-General, it cannot be said, of course, that only modifications which properly required no further environmental assessment were envisaged.) Thirdly, the 'consent authority' was to be the Minister. Conferring authority on a Minister may have a number of purposes. One such purpose may be to permit the decision-making authority to have regard to matters such as State and regional planning significance, being matters which stand above and beyond developments having limited local impact or insignificant impact at a regional or State level. 54 These considerations inform the content of the definition of "modification of approval" and the scope within which the terms of an approval to carry out a project may properly be sought to be changed. Beyond these general remarks, it is neither helpful nor appropriate for this Court to go in this case. Costs 55 Because of the way in which the matter appears to have developed, on a key question which rendered irrelevant the other issues raised, the parties should be given the opportunity to address the Court on costs. Although the appellant has succeeded in the outcome and sought its costs of the appeal, there are factors which would support an order that each party bear its, his or her own costs. First, the issue appears to have been raised as one of public importance, rather than private interest: see Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72. Secondly, counsel appearing for the Minister and the Director-General took a position which, if not actively supported by the appellant, was not resisted by it, that this Court should clarify the scope of the statutory power conferred by s 75W. The fact that this should not be done, beyond the remarks set out above, does not diminish the existence of a matter of public interest and importance as raised by Mr Williams in the Court below and in this Court by the appellant. Thirdly, there is the point already noted, namely that, at least as a matter of emphasis, the case on which the appellant has succeeded was not the case on which the primary judge focused, nor was it the case which lay at the forefront of the notice of appeal. Conclusions 56 The following orders should be made:

(3) Direct that if any party seeks a particular order as to costs in this Court, or in the Court below, it should file a notice of motion, together with submissions in support of any proposed order within 14 days of this judgment, failing which there will be no order as to the costs of proceedings in this Court or in the Land and Environment Court. 57 SACKVILLE AJA: The primary Judge concluded that the words "changing the terms of a Minister's approval" contained in the definition of "modification of approval" in s 75W(1) of the Environmental Planning and Assessment Act 1979 (NSW) ("EPA Act") did not contemplate a "radical transformation" of the terms of an existing approval (at [57]). The consequence was not that the appellant's request to modify the development consent for the Cowal Gold Mine was invalid, but that it was not a request "to modify the Minister's approval for a project" within the meaning of s 75W (at [65]). It was for this reason that his Honour granted relief to the first respondent to the appeal ("Mr Williams") which included a declaration that the second respondent to the appeal ("the Minister") was not empowered to determine the appellant's request. 58 As I understood the appellant's submissions, it did not dispute that a request was necessary "at some procedural level" to enliven the operation of s 75W. As Basten JA points out (at [13]), s 75W contemplates that a request will be made by a proponent of the modification and that the request will be lodged with the Director-General. One purpose of the latter requirement is plainly to enable the Director-General to determine whether to impose "environmental assessment requirements with respect to the proposed modification" (s 75W(2)). 59 The precise consequences of a failure to comply with these procedural requirements of s 75W were not explored in argument, doubtless because no such issue arises in the present case. However, the consequences might depend on the particular circumstances. For example, a proponent might mistakenly lodge a request with the Minister, rather than with the Director-General. The request might find its way to the Director-General who then proceeds to discharge his or her statutory responsibilities, including considering under s 75W(2) of the EPA Act whether to impose environmental assessment requirements with respect to the proposed modification. In these circumstances, the failure to lodge the request with the Director-General might not expose any subsequent approval of the request by the Minister to attack on the ground that it was ultra vires the Minister. 60 On the other hand, if the request never found its way to the Director-General and, consequently, the Director-General never gave consideration to imposing environmental assessment requirements, the position might be quite different. A purported approval of the request by the Minister in these circumstances might well be held to be unauthorised by the statute. 61 Basten JA takes the view (at [32]) that there can be little room for debate that both the purpose and statutory context of s 75W limit what might fall within the concept of a request, although it is not strictly necessary to address the construction of the expression "modification of approval" (or other grammatical forms of this expression) (at [43]). This task is unnecessary because his Honour concludes that s 75W, on its proper construction, obliges the Minister when discharging his or her functions under s 75W(4), "to be satisfied that the request falls within the scope of the section" (at [38]). 62 In my view, if a proponent makes a request that seeks something more than a "modification of approval" (on the proper construction of that expression), it is still open to the Director-General and the Minister to deal with the request in the manner contemplated by the legislation. The making of a request that is in fact limited to seeking a "modification of approval" (properly construed) is not an essential precondition to the exercise of the Minister's power: cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, at 63-64 [37]-[38], per Spigelman CJ (with whom Mason P and Meagher JA agreed). Even if the proponent's request "overreaches", the Minister may exercise his power to modify the approval in accordance with s 75W(4) of the EPA Act. If it were otherwise, the Minister's decision to modify the approval, even if made entirely in accordance with the relevant statutory criteria and after an impeccable procedural process, would be liable to be set aside because the initial request was framed too broadly. 63 Nor do I think that either the Director-General or the Minister is obliged, in the course of processing a request by a proponent, to be satisfied that the request itself seeks no more than a "modification of approval". No doubt if the Director-General or the Minister forms the view that the request seeks more than can lawfully be granted, there may be consequences for the proponent. But there is nothing in the language of s 75W to indicate that the Director-General or the Minister must be satisfied that the terms of the request do not travel beyond seeking a modification of the Minister's approval for a project before the Minister can act on the request. 64 This conclusion is enough to resolve the appeal. In the absence of any determination by the Minister under s 75W(4) of the EPA Act, I prefer not to express a view as to the proper construction of the expression "modification of approval" as used in s 75W. The precise meaning of the statutory expression may have a bearing on the scope of the powers entrusted to the Minister. In particular, it may bear on the question whether any approval by the Minister must comply with objective standards in order to be lawful or whether it is sufficient for the Minister to be satisfied of certain matters (and, if so, what matters). 65 I agree with the orders proposed by Basten JA. **********

BARRICK AUSTRALIA LTD v WILLIAMS

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Judgment (32 paragraphs)

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Cited By (28)