Donnelly v Delta Gold Pty Ltd & Ors

Land and Environment Court (NSW)|2001-03-22|Before: Bignold J

The Applicant's principal claim advanced at the hearing is that the spray irrigation of waste waters authorised by the Licence Variation is an unlawful activity because the Licence Variation is itself invalid by reason of the failure by the Fifth Respondent to call for, and to consider, public submissions, in alleged breach of the PEO Act, s 58(6), before it granted the Licence Variation on 23 June 2000. (Additionally, there is a discrete claim for invalidity of the Licence Variation based upon the formal content of the application which gave rise to the grant of the Licence Variation.)

Irrespective of whether the spray irrigation activity is lawful or unlawful in terms of the PEO Act, the Applicant further contends that the activity will involve a breach both of the NP&W Act s 118D and of a particular conditions of Mining Lease 1386.

On 7 July 2000, after a longer contested interlocutory hearing, I continued the interim injunction but expedited the final hearing of the class 4 application. The final hearing was conducted over a period of 11 days, commencing on 20 July 2000 and concluding on 10 August 2000 when judgment was reserved.

In his final address Senior Counsel, on behalf of the First to Fourth Respondents, urged me to discharge the interim injunction now that I had heard the entire case and was obviously far better placed than I had been when originally granting the interim injunction (and thereafter continuing it), in evaluating the merits of the competing cases. On that occasion, I declined to immediately discharge the interim injunction but indicated that I would revisit the question if I had not delivered final judgment by 18 August 2000, in recognition of the fact that in practical terms, spray irrigation of the treated waste waters would cease to be an available option to the First to Fourth Respondents with the onset of the wet season commencing at the end of Spring of 2000 with the predicted consequent environmental risk of the stormwater capacity of the storage facilities failing to cope with the stormwater runoff likely to be experienced at the mine during the upcoming wet season. On 23 August 2000, final judgment not having been delivered in the proceedings, I discharged the interim injunction from midnight 25 August 2000 for the reasons given in my judgment delivered on that day in the knowledge that the Respondents desired to forthwith commence the spray irrigation program authorised by the Licence Variation, and upon the basis of my impact that the Applicant's case presented at the final hearing did not justify either a continuance of the interim injunction, or the grant of a permanent injunction.

I should at the outset mention a number of matters that were raised prior to, or at the hearing, some of which do not otherwise feature in this judgment. Firstly, there is the fact that the Applicant, just before the commencement of the final hearing had sought to join the Minister for Mines who had opposed joinder on the ground that some, if not all of the relief claimed against the First to Fourth Respondents in respect of the alleged breaches of the conditions of Mining Lease 1386 (eg cancellation by the Court of the Mining Lease) was misconceived. In the result, the Minister was not joined without the Court being required to consider the question whether the relief claimed in respect of the alleged breaches of the conditions of the Mining Lease was misconceived, as had been contended on behalf of the Minister on the interlocutory hearing seeking his joinder. Although at the final hearing the Applicant maintained his claim that a number of the Mining Lease conditions had been breached, it was agreed between the parties that the question of the appropriate form and content of any relief, if the Applicant were ultimately held to have established relevant breaches, would need to be reserved for further and future consideration by the parties and by the Court.

Ultimately, the final hearing has been confined to the questions raised by the Applicant's claims as to whether there have been any relevant breaches of (i) the PEO Act (as alleged against the Fifth Respondent); (ii) the NP&W Act (as alleged against the First to Fourth Respondents); and (iii) the conditions of Mining Lease 1386 (as alleged against the Third Respondent) but wholly reserving consideration of the question of any appropriate relief in respect of any relevant breach that may be established.

Secondly, it is to be noted that at the hearing I granted leave to the Applicant to amend his Points of Claim to allege that in granting the Licence Variation, the Fifth Respondent failed to consider the impact of the Variation upon "aboriginal relics" within the meaning of the NP&W Act. Such leave was limited to enable the Applicant to allege a failure to consider that matter on the basis of the evidentiary materials that had already been filed in the proceedings. However, I gave the Fifth Respondent the opportunity to respond to the fresh allegation and this led to the production of a further affidavit by Mr Dutaillis, the Environment Protection Officer employed by the Fifth Respondent at its Armidale office, who as authorised delegate of the Fifth Respondent, had granted the Licence Variation.

Thirdly, it is to be noted that at the hearing the Applicant sought leave to further amend his Points of Claim to allege a breach of condition 100 of Mining Lease 1386 which required submission to the Department of Urban Affairs and Planning of a "final hazards analysis" before mining was commenced. (In support of this amendment, the Applicant had filed an affidavit sworn by Mr Derek Mullins, an officer of the Department of Urban Affairs and Planning stating that his searches of the Department's records had not revealed receipt of the "final hazards analysis").

This particular application to amend was ultimately opposed by the First to Fourth Respondents because they claimed the need for more sufficient time to investigate the matter which not only arose belatedly in the course of the final hearing, but was belated in a more fundamental sense - inasmuch as condition 100 in terms, required the submission of the final hazards analysis "before mining was commenced" in circumstances where not only had mining been commenced and been undertaken throughout 1999 but where, at the time these proceedings were commenced, mining production had already been suspended. In the event, I refused leave to amend but only on the condition that the First to Fourth Respondents undertook not to raise any "Anshun" estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) by way of defence to any future claim that the Applicant might choose to bring in respect of the alleged breach of condition 100 of the Mining Lease. The Respondents gave the Court the required undertaking.

Fourthly, I should note that the Applicant was not legally represented in the proceeding but instead, was represented by Mr Oshlack, a non-lawyer, whom he had appointed to act as his agent pursuant to the Land and Environment Court Act 1979 s 63. Mr Oshlack has so acted, and is also so acting for the Applicant and/or other persons in the other proceedings pending in the Court that have brought against the operators of the Timbarra Goldmine. I mention this matter because, notwithstanding Mr Oshlack's extensive practical litigation experience with this Court (in recent years he has frequently appeared as a litigant in person or as an authorised agent for others) and his obvious dedication to his appointed task, he is not a trained lawyer and in consequence, he has not been able to meaningfully participate in the legal debate on what has emerged as a fundamental legal question in respect of the alleged breach by the Fifth Respondent of the PEO Act s 58(6) namely what is the true nature of the present proceedings based upon that allegation and what is the true nature and scope of the Court's jurisdiction and adjudicative role in respect of that allegation.

In respect of this all important question, all Respondents have submitted that the duty cast upon the Fifth Respondent by s 58(6) did not involve a jurisdictional fact with the consequence that the Court's jurisdiction and role in the present proceedings was limited to the "judicial review" of the Fifth Respondent's decision to grant the Licence Variation without first seeking and considering public submissions, with the consequence that the merits of that decision are not examinable by this Court in the proceedings.

Such an understanding of the Court's role in the proceedings was also reflected in the submissions ultimately advanced on behalf of the Applicant at the final hearing but I fear in innocent ignorance of the legal distinction between judicial review adjudication and jurisdictional fact jurisdiction. Notwithstanding this feature of the case, it must also be noted that both the Applicant and the First to Fourth Respondents had adduced a large body of expert evidence at the hearing, which I admitted provisionally and subject to ultimate relevance (such ruling being necessitated by the objection raised by the Fifth Respondent as to the admissibility of the expert evidence that was adduced by the Applicant). In respect of this objection, the parties agreed in the course that I ultimately adopted at the hearing, namely to leave the ultimate adjudication on the objection to the final judgment in the case, which would necessarily decide the true nature of the Court's adjudicative function in the proceedings.

Obviously most, if not all, of the expert evidence provisionally admitted into evidence, simply would not be relevant (save for any question of discretion) if the Court's jurisdiction and adjudicative role were limited to that of judicially reviewing the decision of the Fifth Respondent to grant the Licence Variation, rather than that of determining for itself, on the basis of all the evidence whether the Fifth Respondent, in making that decision, had breached the obligation imposed by the PEO Act, s 58(6) to invite and to consider public submissions.

I must hereafter return to determine this all important question but firstly, I should pause to examine the juridical basis for each of the Applicant's several claims, and the correspondingly available jurisdiction vested in the Court to adjudicate upon them.

Finally, I should mention the fact that on 16 January 2001, the Applicant filed a Notice of Motion seeking inter alia leave for the Applicant to reopen his case to enable him to adduce evidence that the First to Fourth Respondents "had breached the Licence Variation". The Motion also claimed an injunction restraining the First to Fourth Respondents from carrying out the spray irrigation activity pursuant to the Licence Variation. The Vacation Judge adjourned the Motion to 29 January 2001 to be heard by the trial Judge. The Applicant's Motion which was resisted by all Respondents was heard on 29 and 30 January 2001 when judgment was reserved. In reserving judgment, I informed the parties that obviously I would not deliver my reserved judgment on the final hearing until I had delivered judgment on the Applicant's Motion to re-open the case but that if the Motion failed, I would contemporaneously give final judgment in the proceedings.

THE JURISDICTIONAL BASIS FOR THE APPLICANT'S CLAIMS AND THE COURT'S JURISDICTION TO DETERMINE THEM

As I have already mentioned, the Applicant alleges breaches of three separate legal regimes, namely breach of specific provisions of (i) the PEO Act; (ii) the NP&W Act; and (iii) Mining Lease 1386.

I propose to separately consider each of the relevant allegations of breach of these statutory provisions and to identify the source of the Applicant's legal entitlement to claim redress in respect of such breaches, within the Court's jurisdiction.

The principal alleged breach is that committed by the Fifth Respondent in granting the Licence Variation, without having invited and considered public submissions, before it varied the licence. In this respect, s 58, which deals with the subject of "variation of licences", provides as follows:

58 Variation of licences (1) The appropriate regulatory authority may vary a licence (including the conditions of a licence). (2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition. (3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. (4) A licence may be varied at any time during its currency, including on its being transferred to another person. (5) A licence is varied by notice in writing given to the holder of the licence. (6) If: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979,

the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

It is not in dispute that in the present case there was no invitation given for the making of public submissions and there was no consideration of public submissions before the Fifth Respondent granted the Licence Variation. Nor is it in dispute that the proposed variation had not been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979 (EP&A Act).

Accordingly, the sole issue in dispute concerning the alleged breach of the PEO Act, s 58(6) is whether "the variation of the licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence". The Applicant's case that the variation of the licence will have such an effect is strongly resisted by all of the Respondents.

As I have earlier mentioned, this issue raises the question whether the fact in issue (being the fact referred to in the PEO Act, s 58(6)(a)) is a "jurisdictional fact" which would require determination by this Court on the basis of all of the evidence, or whether it is a fact that is to be determined by the regulatory authority (in this case, by the Fifth Respondent) subject however to such determination being examinable by the Court in its judicial review jurisdiction.

Whereas I shall consider this question in greater detail later in these reasons, it is important to note even at this stage that considered from the viewpoint of available jurisdiction, this Court is vested with jurisdiction (i) to determine the question whether there has been a "breach of the Act" by virtue of the provisions of s 252 of the PEO Act (see also s 20(1)(ci) of the Land and Environment Court Act 1979); and (ii) to judicially review the decision of the Fifth Respondent to grant the Licence Variation - by virtue of the Land and Environment Court Act 1979, s 20(2)(a), s 20(2)(b), and 20(2)(c). However, although the Court's jurisdiction includes judicial review, if it is held that the proceedings properly invoke the jurisdiction to determine whether there is a breach of the Act, and that involves a jurisdictional fact, then that jurisdiction, rather than the judicial review jurisdiction, is the jurisdiction that is to be exercised in the case.

As will later be shown, the vesting in this Court of such a comprehensive (and exclusive) jurisdiction is, in my judgment, itself an important factor in seeking the answer to the question posed.

Section 252 of the PEO Act is one of two sections contained in the Act, Pt 8.4 which is headed, "Civil proceedings to remedy or restrain breaches of Act or harm to environment".

Section 252 deals with a breach of the PEO Act and s 253 deals with a breach of "any other Act or statutory rule made thereunder".

Section 252 is in the following terms: (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. (4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. (7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence. (8) In this section:

breach includes a threatened or apprehended breach.

As earlier mentioned, the Applicant relies upon an alternative ground for challenging the validity of the Licence Variation, namely that the application for that variation was not properly made as is required by s 59(2) of the PEO Act, inasmuch as the common seal of the Fourth Respondent was not affixed to the application.

An application for the variation of a licence may be made only by or with the consent in writing of the holder of the licence.

According to the undisputed documentary evidence, the relevant application (made in the form apparently approved by the Fifth Respondent) was submitted to the Fifth Respondent at its Armidale Office undercover of the letter dated 17 May 2000 from the Second Respondent, signed by Mr Marshall Lee, that Company's Environmental Manager. According to the application form Mr Lee signed it "as a person authorised by the licensee to sign this application form". The application form had noted that the current licensee was Timbara Gold Mines Pty Ltd (the fourth Respondent) which according to the pleadings, is a wholly owned subsidiary of the second Respondent.

Accordingly, two issues are raised by this particular claim - (i.) was the application for Licence Variation made by or with the written consent of the Licence holder (the Fourth Respondent)? (ii.) if not so made, does that fact invalidate the Licence Variation?

The Applicant alleges that the carrying out of the spray irrigation activity will involve a breach of the NP&W Act, s 118D. That section provides as follows: (1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, population or ecological community if the person knows that the land concerned is habitat of that kind.

Penalty: 1,000 penalty units or imprisonment for 1 year or both. (2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or

(a1) was the subject of a certificate issued under section 95(2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with the Part, or (c) was authorised to be done by or under Part 2 of the Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property. (3) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (2) (b) or (c), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section.

The terms "critical habitat" and "threatened species, population or ecological community" are defined by s 5(1) of the Act with the meanings ascribed by the Threatened Species Conservation Act 1995.

The Applicant alleges that the activity comprising the spray irrigation of waste waters authorised by the Licence Variation will significantly affect the habitat of threatened and endangered species, and hence will involve a breach of s 118D of the Act.
There are two obvious sources of jurisdiction vested in this Court relevant to this particular claim made by the Applicant - (i) the PEO Act s 253; and (ii) the NP&W Act, s 176A - see also the Land and Environment Court Act 1979, s 20(1)(cg) and (ci).

Section 253 of the PEO Act provides as follows: (1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment. (2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach). (3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings. (4) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed. (5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence.

The NP&W Act, s 176A provides as follows: (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on the person's own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

Alleged breaches of conditions of Mining Lease 1386

The Applicant founds his claim to relief in respect of alleged breaches by the Third Respondent of various obligations imposed by conditions of Mining Lease 1386, upon the PEO Act s 253. Although a breach of the Mining Lease conditions does not, per se, fall within the scope of the PEO Act s 253 (because the Mining Lease is not "an Act or statutory rule"), such a breach of the conditions arguably involves a breach of the Mining Act 1992 vide s 73(1), s 125(1)(b) and s 374A, and hence, such a breach would fall within the scope and ambit of the PEO Act, s 253.

The allegations of breach of the Mining Lease conditions concern conditions 32, 91, 101 and 102 of Mining Lease 1386 granted by the Minister for Mineral Resources to the Third Respondent by Deed dated 9 April 1996 (Exhibit E/1) which by cl 4 incorporates specified conditions "as conditions and provisions of the lease" and binds the leaseholder to "observe, fulfil and perform" the same, subject to the proviso that

if the leaseholder at any time during the term of the demise - (i) fails to fulfil or contravenes the covenants and conditions herein contained -

this lease may be cancelled by the Minister by instrument in writing…. "

The relevant conditions of Mining Lease 1386 are in the following terms:

The lease holder must provide and maintain efficient means to prevent contaminated waters discharging or escaping from the subject area onto surrounding areas.

The lease holder shall ensure that all designs and works associated with the construction of the heap leach pads, the liquid storage and storm storage ponds (including methods and materials for lining) are carried out in accordance with professionally recognised engineering standards and practices appropriate for their construction and that such works are carried out under the supervision and control of a person or organisation with recognised experience in the field whose qualifications and experience are recognised by the Institute of Engineers, Australia.

The lease holder shall carry out an appropriate Community Liaison Programme in respect of major developments at the site.

102.The lease holder must ensure that the total storm storage capacity within the intermediate liquor storage, the pregnant liquor storage, the barren liquor storage and storm ponds is not less than 140 ML.

ALLEGED BREACH OF PEO ACT, S 58(6) - A JURISDICTIONAL FACT?

As I have earlier mentioned, the Applicant, in his final address, mounted his challenge of the Fifth Respondent's decision to grant the Licence Variation without first inviting and considering public submissions, upon the ground that the decision was "manifestly unreasonable" insofar as it was founded upon an assessment that the Licence Variation would not authorise "a significant increase in the environmental impact of the activity authorised or controlled by the licence". As the address was developed, it also alleged that the decision-maker had not considered relevant matters, eg whether aboriginal relics would be adversely affected by the spray irrigation activity.

Thus, the Applicant's final address was only suggestive of a challenge which was entirely based upon conventional grounds of judicial review of administrative action as discussed, for example in the oft cited judgment of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24.

However so to understand the Applicant's final address does not necessarily mean that the Applicant is to be taken as having abandoned his case as formulated in his amended class 4 application filed on 12 July 2000 as pleaded in his amended points of claim filed on the same day. As so formulated and pleaded, the Applicant's case was not founded upon a claim seeking the judicial review of the Fifth Respondent's decision to grant the Licence Variation, but rather, was founded upon an alleged breach of statutory duty by virtue of an allegation that the Licence Variation will have a significant impact upon the environment. In this respect, it should be noted that the Respondents, in their final addresses in the case, addressed the Applicant's claims on the alternate bases of the Court's adjudicative function - (i) the judicial review of the fifth Respondent's decision; and (ii) the Court, determining for itself, whether there had been a breach by the fifth Respondent of its duty under the PEO Act, s 58(6)).

Despite this uncertain state of affairs concerning the disparity between the Applicant's case as pleaded and the case as presented at the hearing it nonetheless remains the Court's duty to determine the precise nature of the Court's adjudicative function in respect of the Applicant's claims, recognising "…that within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessing executive and administrative powers exercise them only in accordance with the laws that govern their exercise: per Gaudron J in Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 at 157.

I have already tentatively suggested that this question is substantially answered by virtue of the plenary nature of the relevant jurisdiction exclusively vested in the Court that I have earlier noted, and most especially, the jurisdiction that is conferred by the PEO Act, s 252 in the express terms of "restraining and remedying a breach on threatened breach of the Act".

Although all Respondents have submitted that the fact whether a Licence Variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" is not a jurisdictional fact, the question was not satisfactorily explored in argument principally because the Applicant was not legally equipped to mount any competing argument. Nonetheless, the Court must answer the question, despite the absence of competing argument.

Ultimately, the answer to the question depends upon the proper construction of the PEO Act s 58(6). That this is so is made very clear by the judgment of Chief Justice Spigelman in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52, (a case involving a challenge to the validity of a development consent granted for the extension of the Goldmine established on ML 1386) where at p 60, the Chief Justice propounds as the solvent to the relevant question:

Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears.

The Chief Justice elaborates upon this statement in the following extended passage at 60/61:

The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave ; Re Bennett (1945 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517.

Objectivity and essentiality are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of essentiality will often suggest objectivity.

Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes jurisdictional fact as some kind of doctrine is, in my opinion, misconceived. The appellation jurisdictional fact is a convenient way of expressing a conclusion - the result of a process of statutory construction.

Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts.

Where the process of construction leads to the conclusion that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power - it is not necessary to determine which, for present purposes - a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense - Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts.

Thereafter, in his judgment, the Chief Justice examines many of the decided cases that have dealt with the question whether a factual reference in a statute is, or is not, a jurisdictional fact, in all of which cases the court is concerned to give effect to the legislative intention which (in the absence of express legislative pronouncement) is "to be extracted from implications found in inferences to be drawn from the language it has used": per Sir Frederick Jordan in Ex Parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298.

In the course of his judgment, in Timbarra the Chief Justice derives from the decided cases a number of "important and usually determinative, indications of parliamentary intention", the first one of which, noted at 62, is -

whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker in the exercise of such a power (where) such a factual reference is unlikely to be a jurisdictional fact (whereas) the conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power.

In my respectful opinion, it is clear from the statutory language that the relevant factual reference in the PEO Act s 58(6) is "preliminary or ancillary to the exercise of the statutory power" within the Chief Justice's dictum.

Thus, upon a proper construction, it is clear that s 58(1) confers the power to vary a licence (s 58(2) relevantly extending that power) with subsections (3), (4) and (5) respectively providing (i) the circumstances in which the variation power may be exercised (ii) when it may be exercised; and (iii) how it may be exercised.

Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions "before it varies the licence". This duty so formulated is clearly a matter that is "preliminary or ancillary to" the exercise of the statutory power of variation that is conferred by s 58(1).

In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the "essentiality" element identified in Chief Justice's judgment in Timbarra.

It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the "objectivity" element identified in the Chief Justice's judgment in Timbarra.

There is, of course, considerable legislative precedent in the field of environmental planning law for the existence of such a duty, operating by way of preliminary limitation or condition precedent, to the exercise of a statutory power eg EP&A Act 1979 s 79 in relation to a consent authority's consideration of a development application for designated development cf the Local Government Act 1993 s 114 to s 118 (now repealed) and the Local Government Act 1919 s 312A and s 342ZA (now repealed). In respect of the now repealed Local Government Act 1919 s 312A there is existing authority in this Court that it is for this Court to determine for itself whether "the enjoyment of land may be detrimentally affected by the erection of a proposed building" being the fact that enlivened the duty to give public notice of the building application: see Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71 (per Pearlman CJ).

Notwithstanding the foregoing conclusions, it must be realistically acknowledged that the question of the precise nature of this Court's adjudicative function in respect of proceedings challenging the validity of administrative action taken under the State's environmental planning and protection laws continues to provoke lively debate in the cases. Thus, just a few months after the unanimous decision of the Court of Appeal in Timbarra, the Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 encountered the argument that a decision by a determining authority pursuant to the EP&A Act s 112(4)(b)(i) to "modify" a proposed activity involved (and I now quote from the President's judgment at 151) -

a jurisdictional fact cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the committed works were modifications within the ambit of s 112(4)(b)(i): cf Londish v Knox Grammar School (1997) 97 LGERA 1.

In that case, the majority of the Court (Mason P and Sheller JA) found it unnecessary to decide whether the EP&A Act s 112(4)(b)(i) involved a jurisdictional fact (see at 151 per Mason P and at 171 and 172 per Sheller JA) although Sheller JA expressed the view at 172 that the task of deciding the various matters arising under the EP&A Act s 112 including the power to modify the proposed activity, were "entrusted to the determining authority" and "(I)f it acted bona fide and reasonably, its decisions could not be challenged, even if some other body on the same material might legitimately have reached a different view".

The dissenting judgment of Fitzgerald JA contains a lengthy discussion of the question - see at p 191 to p 193 in which his Honour concludes that the opinions of the RTA and the Minister were "not conclusive" and it was for the Court to determine for itself whether the modifications relevantly "reduced the detrimental effects on the environment of the proposal'.

In Timbarra, the respondent had unsuccessfully sought to defend the appeal by relying upon the Court of Appeal's decision in Londish (see at 59) with the Chief Justice holding at p 60 "that it is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact". The Chief Justice went on to observe (at 60) that Londish had decided that the relevant factual finding in the statutory context there involved (being the characterisation for the purposes of a planning instrument of an approved development) was not a finding of jurisdictional fact.

If, immediately following the Timbarra decision, the revival in the Transport Action Group case of the decision in Londish in support of an argument confining this Court's adjudicative role to the judicial review of challenged administrative action, indicates or suggests that the question may not yet have been finally resolved (either in this Court or in the Court of Appeal) then the more recent decision of the High Court of Australia in the Enfield City Corporation case is likely to prove of far more decisive significance in the resolution of any continuing doubt or uncertainty: cf the Article "Jurisdictional Fact: A Dilemma for the Courts" by Linda Pearson (2000) 17E PLJ 453. In particular, it is unlikely, in my respectful opinion, that the decision in Londish can be taken to have survived the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in Enfield. Nor is it referred to in the Court's judgments. However, Bentham v Kiama Municipal Council (1986) 59LGRA 94, a decision of this Court in 1986 that was later approved in Londish is cited in the argument in Enfield in support of the proposition that "(I)n dealing with issues of fact and degree in planning matters, the court should give considerable weight to the decision of the specialist planning body" - see at 138, but is not referred to in the High Court's judgments which did not approve the proposition advanced in reliance upon Bentham.

In Enfield, the High Court, reversing the decision of the Full Court of the South Australian Supreme Court, unanimously held that whether a proposed development was "non-complying" development within the meaning of the South Australian Development Act 1993, s 35(3) was a jurisdictional fact which the trial Court (the Supreme Court) must determine upon the evidence before it, "in whatever form the proceeding in the Supreme Court had been cast": see at 151. Earlier, the joint judgment had stated at 148:

The term jurisdictional fact (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.

In the course of their reasons in the joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ observed (at 144) that the jurisdiction of the Supreme Court that had been invoked by the plaintiff was not "judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth)…but its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto".

In my respectful opinion, this discriminating analysis of the true nature of the jurisdiction that was invoked by the plaintiff in Enfield (challenging the validity of the grant of development consent) provides a particularly apt and illuminating appreciation of this Court's specialist and exclusive jurisdiction "to restrain or remedy a breach" (or apprehended breach) of planning or environmental laws that is conferred by the EP&A Act s 123; the PEO Act s 252 and s 253; and the NP&W Act, s 176A. (There are several other sources of comparable jurisdiction expressly conferred upon this Court in similar statutory language).

In my respectful opinion, when proceedings brought in this Court (such as the present proceedings) challenging the validity of administrative actions, are truly and rightly conceived to be claims "to restrain or remedy a breach or threatened breach of relevant laws", the adjudication that is required of the Court, must invariably and inevitably be whether or not there has been established a relevant breach or threatened breach of the law, as alleged in the proceedings, and where objective facts are crucially or essentially involved in the alleged breach (such as in the present case) this Court obviously must determine for itself the existence or non-existence of such facts, on the basis of the available evidence. In such circumstances, the conclusion must invariably be that the facts are jurisdictional facts.

Indeed, it is the very creation, in the same statute, pursuant to which the impugned administrative action is taken, of specialist jurisdiction vested in the Court to restrain or remedy a "breach" (or threatened breach) of the statute that is, in my opinion, a powerful legislative indication that it is intended that this Court must determine for itself, whether or not there has been a relevant breach of the statute, rather than to leave that question to the decision of the very administrative agency whose action (or inaction) is the basis for the allegation of breach of the statute . There is something fundamentally anomalous and unsatisfying in the view that the question of whether an administrative agency has relevantly breached the law, is to be answered according to the opinion held by that agency (subject albeit to the judicial review of that opinion).

For all of the foregoing reasons, I hold that the question whether the Licence Variation in the present case will relevantly "authorise a significant increase in the environmental impact of the authorised activity" is a question concerning a jurisdictional fact which this Court must determine for itself, on the basis of all relevant evidence. It follows that in the present case it is not the Court's duty to judicially review the reasonableness of the decision of the Fifth Respondent on the question although, as will later be shown, evidence concerning that decision, and the decision itself, may be relevant to, and carry weight in, the Court's determination of the relevant question: see City of Enfield at p 154 - p 156 in the joint judgment of the Court and at p 158 - p 159 per Gaudron J in her separate judgment, which passages are recited hereafter.

HAS THE APPLICANT ESTABLISHED A BREACH OF THE PEO ACT S 58(6)?

In the present case, the Applicant alleges a breach by the Fifth Respondent of s 58(6) by virtue of its failure to invite and to consider, public submissions, before granting the Licence Variation. As I have earlier noted, it is common ground that the Fifth Respondent did not invite or consider public submissions before it varied the Licence. In order to prove the alleged breach, the Applicant must prove that the Licence Variation "will authorise a significant increase in the environmental effect of the activity authorised or controlled by the licence". (It is not in contest that the proposed variation has not been the subject of environmental assessment and public consultation under the EP&A Act).

I have already held that the requirement for inviting and considering public submissions operates in the nature of a condition precedent to the exercise of the statutory power of variation. However, that requirement is not a universal requirement - rather, it only operates where the two circumstances respectively defined in par (a) and par (b) of s 58(6) both apply in a given case.

By way of preliminary observation, it may be noted that no equivalent requirement operated under the statutory licensing regime repealed and replaced by the PEO Act, which in s 3 contains express policy objects for promoting "community involvement in environment protection" (vide par (b) and par (c)) which objects no doubt informed the content of s 58(6) - see also s 45(l).
The statutory power of variation conferred by s 58(1) is expressed in wide terms "may vary a licence (including the conditions of a licence)". Subclause (2) further widens the power. It is obvious from the width of the power that there may be a variation, which by virtue of its nature and effect eg imposing of a condition requiring environmental monitoring of the existing activity (see s 66(1)), clearly falls outside the ambit of the circumstances detailed in par (a), and (b), of s 58(6) and accordingly such a variation may be granted without the possibility of the requirement for inviting and considering public submissions being enlivened. Clearly the present case does not involve such a variation. Rather, it involves a variation which permits additional discharge points for the disposal of treated wastewaters that have been produced by the mining operation, and accordingly at least potentially, it is possible that such a variation may "authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" within the meaning of s 58(6)(a).

I have earlier stated that it is common ground that the Licence Variation was not preceded by "any environmental assessment and public consultation" under the EP&A Act within the meaning of s 58(6)(b). Notwithstanding this fact, it is useful to consider the effect of this statutory circumstance, in the delineation of the scope and ambit of the statutory duty.

The existence of the twin circumstances respectively outlined in s 58(6)(a) and (b) which in combination, enliven the statutory duty, indicates a legislative recognition of the possibility that a variation of a licence "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" but nonetheless, there will be no need for inviting and considering public submissions because the variation has already been the subject of "environmental assessment and public consultation under the EP&A Act". This last mentioned environmental assessment and public consultation is not likely to be an adventitious circumstance, but rather is likely to be the direct result of the operation of the mutually relevant provisions of EP&A Act and the PEO Act that operate in respect of the concept of "integrated development" as defined by the EP&A Act, s 91 which includes "development that…requires development consent and one or more of the following approvals" (which "approvals" expressly include environmental protection licences granted under the PEO Act) - see also the EP&A Act, s 91A and the PEO Act, s 50 and 51.

In passing, I should note that the reason why the spray irrigation of treated wastewaters authorised by the Licence Variation had not been subjected to environmental assessment and public consultation under the EP&A Act was not explored in these proceedings, although I hasten to add that no such enquiry was necessary for the adjudication on the issues raised by the present proceedings. However, having regard to the relevant history concerning (i) the grant of Mining Lease 1386 at a time when there was no environmental planning instrument in force in respect of the land the subject of that Mining Lease; and (ii) the subsequent coming into force, very soon after the grant of the Mining Lease, of the Tenterfield Local Environmental Plan 1996 before the mine had been developed and could thereby have acquired the status of an "existing use" in terms of the EP&A Act (both these facts are referred to as the "background facts" in the Chief Justice's judgment in the Timbarra Protection Inc case - see at p 55 and p 56) and having regard to the now current relevant planning laws, it is not difficult to speculate that the only valid reason why the activity authorised by the Licence Variation was not subjected to environmental assessment and public consultation under the EP&A Act is to be found in the operation of the Mining Act 1992, s 74(1) which is in the following terms: (1) While a mining lease has effect: (a) nothing in, or done under, the Environmental Planning and Assessment Act 1979 or an environmental planning instrument operates so as to prevent the holder of the mining lease from carrying on mining operations in the mining area, and (b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease.

But for this provision, the use of the 10 ha of forested area for the receival of spray irrigation of the treated wastewaters generated by the Goldmine would clearly constitute "development" within the meaning of the EP&A Act requiring the grant of development consent.

It is now necessary to consider some textual features of the statutory circumstance outlined in s 58(6)(a), namely (i) the meaning of the expressions "significant increase" and "environmental impact" which are not defined terms in the PEO Act (either individually or as a compound expression); and (ii) the scope and ambit of the concept of "an activity" being "authorised or controlled by the licence".

As to (i), the absence of definition means that the expressions are (subject to context) to be given their natural meanings as ordinary English words and phrases. These natural meanings are reinforced by contextual considerations which include the fact that the PEO Act is principally concerned with "the protection, restoration and enhancement of the environment" (vide s 3(a)) and the fact that other legislation, principally the EP&A Act, seeks to advance this same or similar object. The expressions "significant increase" and "environmental impact" where employed by the EP&A Act have acquired settled meanings in the past 20 years and those meanings would appear to be perfectly appropriate to be attributed to the same expressions, where they are employed by the PEO Act. The Legislature clearly appears to have adopted this alignment position, for example, by enacting s 45(i) which requires consideration of a "licence application" made under the PEO Act (which expression includes an application for variation of a licence) to include "any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the EP&A Act".

As to (ii), a consideration of the context of the PEO Act, Pt 3 indicates that it is environment protection licences that "authorise the carrying out of scheduled development work" or "scheduled activities" at premises (s 43(a) and (b)) or "control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from such activity" (s 43(d)). See also s 47, s 48 and s 49 which create offences of carrying out scheduled development work or scheduled activities without being the "holder of a licence that authorises the activity to be carried out".

"Scheduled activities" (both "premises-based" and "not premises-based") are respectively specified in Schedule 1 to the Act. (The word "activity" is defined in the Act's Dictionary as meaning "an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal)".

Part 1 of Schedule 1 enumerates a large number of "activities premises-based" including "Mines" which is defined in the manner hereinafter recited.

In respect of "such premises-based activities", it is necessary to note that the PEO Act, s 56(1) requires the licence "to specify the premises to which it applies" and subsection (2) provides as follows:

The premises so specified are to be the whole of the premises at which the activities authorised or controlled by the licence (and ancillary activities) are carried on.

As will presently be shown, the Licence Variation, the subject of the present proceedings, was granted in respect of what may be described as a "deemed licence", ie a licence in force under the statutory regime that was repealed and replaced by the PEO Act and which is given continuing force under the PEO Act in a manner shortly to be mentioned.

As earlier mentioned, the only issue in dispute concerning the alleged breach of s 58(6) is whether the Licence Variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence". This is essentially a factual question requiring a factual determination based upon the totality of relevant evidence.

Although there may be other methods or approaches which could be employed in order to make that requisite factual determination, the method or approach that I propose to adopt is to make a preliminary comparison between - (a.) the environmental impact of the activity as authorised or controlled by the licence without regard to the proposed variation; and (b.) the environmental impact of the activity authorised or controlled by the licence as it is proposed to be varied

with a view to determining the ultimate question whether the "variation will authorise a significant increase in the environmental impact of the authorised or controlled activity". In my formulation I have referred to "the proposed variation", but I could just have aptly referred to it as "the variation" cf par (a) and par (b) of s 58(6). The future tense "will authorise" in its statutory context also indicates that the requisite fact is to be found to exist (or not to exist) in a prospective sense.

The method I propose to employ is virtually the same as the method that is prescribed by cl 1 of Pt 2 of Schedule 3 of the Environmental Planning and Assessment Regulation 1994 for determining whether "alterations or additions" are "designated development", for the purposes of the EP&A Act, Clause 1 providing as follows:

Is there a significant increase in the environmental impacts of the total development? 1 Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

Speaking of the duty imposed by cl 1 upon the consent authority (and upon this Court in determining a class 1 proceeding by way of appeal against the consent authority's determination), the Chief Judge held in Westport Marina Development Pty Ltd v Concord Council (2000) 109LGERA 451 at 457 that

(T)he task….was to form the opinion that the proposed development did not significantly increase the environmental impacts of the total development compared with the existing development.

In my judgment, s 58(6)(a) of the PEO Act, imposes, by necessary implication (or perhaps directly by virtue of the word "increase"), the requirement to make a comparison between (i) the environmental impact of the activity authorised or controlled by the licence as proposed to be varied, and (ii) the environmental impact of the activity authorised or controlled and the Licence, without regard to that variation, in order to determine whether the variation "will authorise a significant increase in the environmental impact of the activity" etc.

Before considering these comparative environmental impacts as a prelude to making the requisite factual finding, it is first necessary to determine with some precision the true nature of each of the following:- (i.) the deemed Licence; (ii.) the activity that is authorised or controlled by that Licence; and (iii.) the activity that is authorised or controlled by that Licence as varied.

(i) The " deemed " Licence 92. The Licence (considered without regard to the Licence Variation) is relevantly Licence No 005771 granted to the Fourth Respondent on 6 January 1999 in respect of "the premises comprising Mining Lease 1386". That licence was granted pursuant to the Pollution Control Act 1970 (which was subsequently repealed by the PEO Act when it came into force on 1 July 1999 but by virtue of cl 4 of Pt 3 of Schedule 5 to the PEO Act, the licence "is taken to be a licence issued under this Act, subject to the regulations under this Schedule"). Existing licences are the subject of the provisions made in Pt 2 of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 6(1) providing that an existing licence "is taken to be an environmental protection licence issued under the Act except as provided by this Part."

In order to determine the precise nature of the "deemed" licence thus created and "the activity" that it "authorises" or "controls", it is necessary to consider Chapter 3 of the PEO Act which contains provisions dealing with environment protection licences.

Section 43 specifies that licences "may be issued for the following purposes: (a) to authorise the carrying out of scheduled development work at any premises, as required under section 47, (b) to authorise the carrying out of scheduled activities at any premises, as required under section 48, (c) to authorise the carrying out of scheduled activities not related to premises, as required under section 49, (d) to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122.

Section 48 applies to "scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on".

Schedule 1, Pt 1 is headed "Activities premises-based" and includes the following:

Mines that mine, process or handle minerals (being minerals within the meaning of the Mining Act 1992 other than coal) and that disturb or will disturb a total surface area of more than 4 hectares of land associated with a mining lease or mineral claim or subject to a section 8 notice under the Mining Act 1992 by: (1) clearing or excavating, or (2) constructing dams, ponds, drains, roads, railways or conveyors, or (3) storing or depositing overburden, ore or its products or tailings.

Section 50 deals with a licence that relates to "controlled development" (being defined as "development that cannot be carried out without development consent under the EP&A Act") and provides that a licence must not be granted unless development consent has been granted for the controlled activity. The section does not apply if development consent is not necessary because of an "existing use" entitlement.

Section 51 deals with a licence in relation to "integrated development" (being a term defined by the EP&A Act s 91).

Licence 005771 was granted pursuant to the Pollution Control Act 1970 which contained in Pt 3A a similar statutory regime for the granting of licences to that now contained in Chapter 3 of PEO Act. In particular, the Pollution Control Act, s 17A provided for the making of a licence application "in respect of one or more of the following: (a) scheduled premises or scheduled equipment within the meaning of the Clean Air Act 1961, (b) the pollution of waters within the meaning of the Clean Waters Act 1970, (c) a drain which discharges or is likely to be used for discharging any pollutants into any classified waters within the meaning of the Clean Waters Act 1970, (d) scheduled premises within the meaning of the Noise Control Act 1975.

The definition of "scheduled premises" contained in the Clean Air Act 1961 included the following:

any premises: (a) used for any of the facilities or works for the time being prescribed by clause 1 of Schedule 1"

Clause 1 of Schedule 1 prescribed a number of facilities or works, including the following:

Grinding and milling works, being works in which more than 50 tonnes per annum of agricultural crop products, uncured rubber, rock, ores, minerals or chemicals are processed by grinding, milling or separating into different sizes by sieving, air elutriation or in any other manner except by wet screening or wet sieving.

Similarly, the Noise Control Act defined "scheduled premises" as "any premises of a class for the time being described in the Schedule". Item 1 of the Schedule included the following:

Any premises: (c) having a site area of 20,000 square metres or more that is available to be worked, and any part of which is used for extraction, mining, excavating, dredging or quarrying of rock, coal, metalliferous ores, precious metals, sand, soil, clay, mud or any material of a similar nature, whether at the surface or underground, for the purpose of winning the material for sale or for use at other premises.

The premises to which Licence No 005771 was expressed to apply were described as "The Timbarra Gold Mine - Mining Lease 1386".

The Licence does not compendiously define "the activity" it authorises or controls other than by its reference to "the Gold Mine" which is said to comprise the relevant "premises".

The Licence stipulates the conditions upon which the mining operations may be undertaken. These conditions (which pursuant to the Pollution Control Act 1970, s 17BA, address "the whole of the pollution of all kinds caused or likely to be caused by the activity") include conditions authorising the discharge of polluted water from five nominated discharge points, subject to compliance with specified environmental criteria.

(ii) The Activity authorised or controlled by the deemed Licence

Having regard to (i) the scope and content of Licence 005771 and (ii) the provisions of Chapter 3 of the PEO Act relating to environment protection licences, I am of the opinion that that deemed Licence is an environment protection licence that "authorises the carrying out of scheduled activities at premises" within the meaning of the PEO Act, s 43(b) and s 48, namely mining (comprising the gold mine situate at premises comprising Mining Lease 1386). Additionally and conformably to the PEO Act, s 44(2), the deemed Licence, also by virtue of its provisions relating to the designated discharge points for water pollutants, "regulates all forms of pollution (including water pollution) resulting from those activities", section 44(2) providing as follows:

Licences with respect to scheduled development work or scheduled activities may regulate all forms of pollution (including water pollution) resulting from that work or those activities.

Having regard to the relevant provisions of the PEO Act (including those creating the offence of carrying out scheduled activities without the requisite licence) I think it clear that when the Act refers to a "scheduled activity", it is concerned with the specified activity as a category or genus rather than with the several individual and detailed elements or processes which may be involved or employed in the carrying out of that activity. So understood, the relevant category or genus of the activity authorised by the deemed Licence in the present case, is the Gold Mine established on Mining Lease 1386.

This finding reflects the established approach to the categorisation of "the purposes for which land may be developed" that has long been adopted in respect of town planning and environmental planning legislation eg see Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 where McHugh JA surveys the earlier court decisions on this subject. Similarly, in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101, principles or approaches derived from the planning law were applied to questions raised by the terms and conditions of a licence granted under the Pollution Control Act 1970.

The analogy with the well established town planning principles for categorising developments, is in my judgment, entirely apt in the present case, and is reinforced by the striking similarity between the enumerated "scheduled activities" contained in Schedule 1 to the PEO Act and the enumerated categories or descriptions of "designated development" contained in the Environmental Planning and Assessment Regulation 1994, Schedule 3 (now repealed and re-enacted in the Environmental Planning and Assessment Regulation 2000).

Accordingly and for all the foregoing reasons, I hold that it is that identified activity (ie the Goldmine established on Mining Lease 1386) that is the relevant activity that is "authorised or controlled by the Licence" for the purposes of the PEO Act, s 58(6).

(iii) The Activity authorised or controlled by the Licence as varied

The importance of this last-mentioned conclusion is that the identified activity, namely the Gold Mine at premises comprising Mining Lease 1386, remains the same activity that is authorised by the Licence Variation for the purposes of s 58(6). In other words, the Licence Variation does not change the "activity that is authorised or controlled by" the Licence, although as I have earlier noted, it does increase from five to eight the number of authorised discharge points from which polluted waters may be discharged, and it authorises, subject to environmental criteria, the spray irrigation to land of treated wastewaters generated by the Gold Mine.

However, this conclusion does not mean that the same activity, authorised or controlled by the Licence, must necessarily have the same environmental impacts in the twin contexts of the Licence and the Licence Variation. Rather, it is necessary to examine the terms and conditions of the Licence and the Licence Variation in order to ascertain what is the environmental impact of the activity that is respectively authorised or controlled by (i) the Licence and (ii) the Licence Variation (meaning the Licence, as varied). In so ascertaining the environmental impact of the authorised or controlled activity, it is the impact of the activity undertaken in accordance with the terms and conditions of the Licence and the Licence Variation that must be considered as being the relevantly "authorised or controlled activity" for the purpose of the PEO Act s 58(6)(a).

This last-mentioned conclusion may require some little elaboration because in some statutory contexts it has been held that the "environmental impact of a proposed development or activity" must be considered without regard to any proposed mitigating or ameliorating conditions. Thus, in a case relied upon by the Applicant, Drummoyne Municipal Council v Maritime Services Board (1991) 72LGERA 186, the statutory context was the duty imposed by s 112(1) of the EP&A Act upon a determining authority not to carry out an activity or to grant approval in relation to that activity "that is likely to significantly affect the environment" unless it has obtained and examined an environmental impact statement in respect of that activity. Faced with evidence that the determining authority had concluded that the proposed activity was likely to significantly affect the environment, but that if certain conditions modifying the proposal were imposed, the proposal would not be likely to significantly affect the environment (see at 192), Stein J held at 192:

A number of comments may be made on the conclusions of the officer. First, it is the activity the subject of the application for approval which needs to be examined in the application of s 111 and s 112, and not the activity as it may be modified by the imposition of conditions by the determining authority.

In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation. One must have regard to the opening words of s 111: For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, … In my view an application for permission or approval to carry out an activity is either likely to significantly affect the environment or it is not.

The Maritime Services Board case was followed by the Chief Judge in Byron Shire Businesses for the Future Inc v Byron Council (1994) 84LGERA 434 in the context of the statutory obligation imposed the EP&A Act, s 77(3)(d1) that a development application in respect of a development which "is likely to significantly affect the environment of endangered fauna" be accompanied by a fauna impact statement, where the Chief Judge held at 446:

It was not possible to determine whether the development was likely to significantly affect he environment of the Comb crested Jacana merely by imposing a condition of consent that might mitigate that effect.

It is apparent from both these cases that the Court considered that the statutory duty or obligation applicable in each case would be significantly defeated or frustrated if the "threshold question" whether the proposed activity or development "is likely to significantly affect the environment" etc could be answered by considering the ameliorating effect of proposed modifications to the proposed activity or development, that might be imposed as conditions of the requisite approval or development consent.

However, the approach adopted in the Maritime Services Board case and the Byron Shire Businesses case was not applied by this Court in two later decisions, involving slightly different statutory contexts. In Smyth v Nambucca Shire Council (1999) 105 LGERA 65, the statutory context was the duty imposed by the EP&A Act, s 5A to take into account specified factors "in deciding whether there is likely to be a significant effect or threatened species…" etc and the question for decision by the Court was whether ameliorative measures that were included in a proposed development should be considered. Lloyd J held at 69 that the fulfilment of the statutory duty of answering the relevant statutory question "can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of the development".

That this must be so is clear from the reference to whether it is the development which is likely to significantly affect threatened species…etc

(his reference to "development" being a reference to the express terms of the EP&A Act, s 77(3)(d1), being one of the provisions to which s 5A expressly applies).

His Honour's judgment contains no reference to the Maritime Services Board or the Byron Shire Businesses case or to the principle there adopted concerning the proper approach to determining the "threshold" question raised in those cases.

Most recently, the Chief Judge in the Westport Marina case rejected an argument (founded upon the principle enunciated in the Maritime Services Board case) to the effect that the statutory question posed by cl 1, Pt 2 of Schedule 3 to the Environmental Planning and Assessment Regulation 1994 "could not be determined by reference to a condition requiring the development to be carried out in accordance with Exhibit "V" (Exhibit V being a plan amending the proposed development being an extension to an existing Marina).

In rejecting the argument, the Chief Judge at 61 described the argument as misconceived because "(T)he proposed development was modified not by a condition of consent designed to mitigate environmental impact, but by a change to the development application made by the applicant during the course of the hearing following upon leave granted by the Court". The Chief Judge continued:

This was not a case where the applicant was permitted to carry out activity X so long as it did so in compliance with a condition requiring Y . Rather, the development itself was the activity described in Ex V , and reference to Ex V in the orders and conditions merely ensured that development consent was given to the development the subject of the development application.

The Chief Judge went on to hold that the case was "entirely different from" the Maritime Services Board case and that the question posed by the PEO Act s 58(6) was a different question from that posed in the Maritime Services Board case inasmuch as s 58(6) required "consideration of the environmental impacts of the total development compared with the existing development": at 461.

There is no inconsistency in the four decisions of this Court just discussed, the combined effect of them appearing to be that in determining a threshold question as to whether a proposed activity or development "is likely to significantly affect the environment" etc whereas it is an impermissible approach to answer the question by reference to mitigating or ameliorative measures to be introduced by way of conditions of any requisite approval or development consent, it is a permissible approach to answer the question by reference to the proposed activity or development, including any mitigating or ameliorative measures that are included in the proposal.

To so state the combined effect of these decisions is, in my respectful opinion, to inevitably expose the apparent difficulty in seeking to maintain any meaningful distinction between the different effects of an ameliorative measure (i) introduced by way of condition of consent and (ii) one already included in the proposed activity or development. It is this intrinsic difficulty concerning the sustainability of the distinction that I would respectfully understand the President to have been adverting to in his judgment in the Transport Action Group case where, speaking of the statutory power conferred by the EP&A Act, s 112(4)(b)(i) for a determining authority "to impose conditions or require such modifications as will, in its opinion, eliminate or reduce the detrimental effect of the activity on the environment…." etc he said at 152

To seek to distinguish between the formulated changes and the conditions to which they are subject, and to argue that only the former can be treated as a modification, is a semantic quibble that must be rejected. There is no difference in substance between a modification expressed as:

Instead of a four-lane freeway there will be a two-lane freeway

The freeway will only proceed subject to reduction from four to two lanes.

Immediately following this passage in his judgment, the President refers to the Maritime Services Board case noting that the statutory context and question under consideration in the instant case were "quite different" from that addressed in the Maritime Services Board case. After quoting the passage from Stein J's judgment that is included in the more extensive passage that I have earlier recited, the President at 153 expressed his preference to reserve his decision as to the correctness of the Maritime Services Board decision.

It is not necessary in the present case to delve any more deeply into the decided cases because ultimately (as indeed the cases themselves attest) it is the relevant statutory language in its statutory context that is the all important consideration in the task of statutory construction. In the case of the PEO Act, s 58(6), it is tolerably clear in my judgment, that the relevant "environmental impact" is that of the activity that is "authorised or controlled" by the licence as varied and that which is so "authorised or controlled", necessarily is that which accords with the relevant terms and conditions of the licence, including the licence that is varied. To put the matter more bluntly, what has to be considered is not the environmental impact of the activity per se (as was held to be required in the Maritime Services Board case) but the environmental impact of that activity as it is "authorised or controlled by" the licence (including the licence as varied).

It is true that the relevant statutory context, in the present case is one that raises a "threshold question" but it is not the same threshold question that is posed by the EP&A Act, s 77(3)(d1) or s 112 as to whether facts exist that require an environmental impact statement or a species impact statement to be prepared in support of a proposed activity or development. Rather it is the threshold question whether facts exist that require the decision-maker to invite and consider public submissions before exercising the statutory power to vary a licence. Doubtless, the threshold question is addressed to an important public consideration, as is recognised by the express objects of the PEO Act, namely that of involving the community in environmental protection, but it is not a consideration that requires the exhibition of an environmental impact statement etc as an integral aspect of the required environmental impact assessment. Rather, the express requirement is to invite to consider any public comment on the proposed variation of licence.

Accordingly, the same imperative that informed the decisions in the Maritime Services Board case and the Byron Shire Businesses case, namely that of ensuring that the processes for proper environmental impact assessment were not defeated or frustrated or foreshortened or otherwise avoided (eg by adopting an approach to environmental impact assessment of "putting the cart before the horse") does not apply in the present case. Rather, s 58(6) is clearly concerned with the environmental impact or effect of what is authorised or controlled by the variation of the licence, and accordingly, the true focus of the statutory provision is the environmental impact or effect of that which is authorised by the variation of the licence. This inevitably means it is the licence as varied, with all of its relevant terms and conditions, that "relevantly authorises or controls the activity" and it is that which must be considered, rather than simply the environmental impact or effect of the physical activity per se.

It follows, for the foregoing reasons, that the approach adopted in the Maritime Services Board case, has no application in the fulfilment of the statutory duty imposed by s 58(6) cf Westport Marina.

Moreover, even if, contrary to my conclusion just expressed, there were some scope for the application of the approach adopted in the Maritime Services Board case to the present case, it would not produce any different result because the terms and conditions imposed upon the grant of the Licence Variation were themselves substantially if not entirely, proposed in the application for variation. In effect, the Licence Variation simply replicates, as the relevant environmental conditions upon which the Variation was granted, the terms and conditions that had been proposed and propounded in the application for variation of the licence.

It is now possible to proceed to the required comparison between environmental impacts of the activity as authorised or controlled (i) by the Licence; and (ii) by the Licence as varied.

(iv) The environmental impact of the activity authorised by the Licence unaffected by the Variation

I have earlier held that the relevant activity is the Goldmine established on Mining Lease 1386. The environmental impact of that activity has principally been experienced in the establishment phases of the Gold Mine and thereafter in its operation involving the mining of ore and the processing of it for gold. In addition to what has been experienced in those processes, there is a large body of documentary evidence which predicted and evaluated the likely environmental impact of the proposed establishment of the Gold Mine.

The likely environmental impact of that activity was chiefly described and analysed in the following documents: (i.) the Environmental Impact Statement (EIS) for the Timbarra Gold Project prepared by R W Corkery and Co Pty Ltd; and (ii.) the Environmental Impact Assessment (EIA) Report prepared by the Department of Mineral Resources.

Both these documents (together with the several other documents incorporated in them) had been prepared in accordance with the requirements of the EP&A Act, Pt 5, pursuant to which the Minister for Mineral Resources, as the designated "determining authority", had on 3 April 1996 granted approval, by granting Mining Lease 1386, subject to specified conditions (imposed as conditions and covenants of the Mining Lease) for the carrying out of the activity comprising the establishment and undertaking of the Gold Mine on the leased area of some 400 ha situate on Timbarra Plateau.

The principal environmental impact of the approved activity identified in the EIS and the supporting and follow-up documents, was the significant modification of the land form involving the clearing within the 400 ha area of Mining Lease 1386 of some 80 ha of existing native vegetation. This land clearing, which was undertaken during the establishment phase of the Gold Mine, had obvious adverse consequences for protected native flora and fauna (in terms of the Threatened Species Conservation Act 1995) within the environs of the Mining Lease area and within the wider context of the Timbarra Plateau (the latter comprising an area of some 200,000 ha, much of which is contained in the Malara State Forest and other State Forests).

Those consequences were mitigated by the imposition on the grant of the Mining Lease of ameliorative conditions that had been recommended by the Director General of the National Parks and Wildlife Service. These conditions, to adopt the words employed by the Director General in his report on the EIS made pursuant to the EP&A Act, s 112E were " a minimum requirement". So much appears from the following extract from his statutory Report: -

Nevertheless, NPWS has not proposed that the Timbarra Gold Project not proceed but has recommended a range of prescriptions in an attempt to ameliorate, to some extent, the adverse impacts on the fauna and flora of the area. While the implementation of these prescriptions will themselves have cost associated with them it is considered that from a precautionary perspective and given the potentially irreversible impact from the mine on flora and fauna they are a minimum requirement.

Evidence of the environmental impact experienced in the establishment phases of the Gold Mine is contained in the Species Impact Statement dated March 1999 (coinciding with the commencement of gold mining operations on Mining Lease 1386) prepared by ERM Mitchell McCotter Pty Ltd in respect of the then proposed extension of the Gold Mine onto adjoining land immediately to the south known as Mining Lease 1426.

That Species Impact Statement was prepared immediately following the decision of the Court of Appeal in the Timbara Coalition case. In releasing the Statement, its authors noted that it had been prepared as a "precautionary measure" and warned against interpreting it as implying that the authors' earlier conclusion that a species impact statement was not necessary, was invalid.

The Species Impact Statement, though addressing the environmental impact of the proposed mine extension, makes frequent reference to the environmental impact of the establishment of the Gold Mine on Mining Lease 1386 noting inter alia that that process involved land clearing of some 95 ha but that the potentially adverse environmental impacts of this process had been ameliorated by the implementation of ameliorative measures as required by the conditions of Mining Lease 1386 imposed at the suggestion of the Director of National Parks and Wildlife, including implementation of the Threatened Species Management Plan (January 1998) that had been prepared in accordance with those conditions of the Mining Lease.

The evidence contained in the Species Impact Statement of the environmental impact of the establishment of the Gold Mine on Mining Lease 1386 corroborates the predictive evaluation contained in the documents evaluating the proposal in terms of the requirement of the EP&A Act, Pt 5 that I have earlier referred to.

Another significant environmental impact was that caused by the operational activities of the Gold Mine, involving open cut mining to obtain the ore, the crushing of the ore and the extraction of gold by the leach pad method whereby water treated with cyanide is continuously applied in percolation fashion to heaps of the crushed ore deposited on the leach pads. The environmental impacts caused by these operational activities of the Gold Mine obviously include the generation of noise (blasting is used to extract the ore from open cut pits) and of dust. Another environmental impact caused by the establishment was the need for operational activities of the Gold Mine to be controlled, including the containment of stormwater runoff and installation of sedimentation controls to protect watercourses.

Licence No 005771 contains a number of conditions controlling these aspects of air and noise and water pollution.

In respect of these conditions controlling water pollution, it is to be noted that both the EIS (adopted by the conditions of Mining Lease 1386) and the Mining Operations Plan, prepared as required by conditions of the Mining Lease, proposed "a closed system of waste water management" meaning that all waste waters would be retained in a series of dams or ponds constructed within the Mining Lease area and that the required storage capacity of such dams or ponds would be 140 megalitres ie estimated to be sufficient to cope with a 1 in 400 year storm event of 72 hours duration. As will presently be shown, the Licence Variation is exclusively directed to the issue of stormwater detention and water pollution.

(v) The Environmental Impact of the Activity Authorised or Controlled by the Licence as Varied

It is against this background of the description and appraisal of environmental impacts of the activity authorised or controlled by Licence 005771 that I come to consider the environmental impact of the activity as varied by the Licence Variation (this being a necessary prelude to determining the ultimate issue of whether the Licence Variation "will significantly increase the environmental impact of the activity").

Despite some of the language employed in the Licence Variation, it is clear that the sole intent and purport of the Variation was to authorise three additional discharge points situated within the premises comprising Mining Lease 1386 "from which the licensee may discharge in accordance with the conditions of this licence, the volume, concentration or type of pollutants described" in the Licence Variation.

In terms, the Licence Variation did not involve any change in "the activity authorised or controlled by the Licence" except for its authorising three additional discharge points from which there might emanate "water pollution" as that term is defined in the PEO Act. As earlier found, the "activity" in terms of the Licence as varied remains the Gold Mine, established and operating on the premises comprising Mining Lease 1386, but the extent to which water pollution over or from the premises was authorised, was increased by virtue of the provisions of the Licence Variation authorising the three additional discharge points.

The Licence Variation identifies the three additional discharge points as follows - (i.) discharge point 006, being classified as "an overflow drain located at the spillway from Cell 11 Silt Dam"; (ii.) discharge point 007 being classified as "an overflow drain located at the spillway from Site 3 Silt Dam"; and (iii.) discharge point 008, being classified as "drain discharging (irrigation) located at the trial irrigation area of approximately 10 ha on Mining Lease 1386, situate immediately to the south and south-east of the raw-water dam".

Each of the three locations is shown on a map expressly referred to in the conditions imposed on the Licence Variation (Figure 1), a copy of which is annexed hereto and marked "A" (This plan also shows the location of the various dams established in the vicinity of the heap leach pads.)

The Licence Variation imposed a number of "limit conditions" and "monitoring conditions" on the authorised discharge of water pollution from each of the designated three additional authorised discharge points. It is necessary to fully recite these conditions in order to fully appreciate what was authorised and to assess the environmental impact of the authorised or controlled "activity". The conditions provide as follows:-

Location of authorised discharge point: Spillway from Cell 11 Silt Dam

W1. All run-off within Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 must be contained and directed to the Cell 11 Silt Dam.

For the purposes of this licence, Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 is defined by the shaded area outlined on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1.

For the purposes of this licence, the Cell 11 Silt Dam is identified on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1.

W2. Water irrigated onto the Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 must have a pH value equal to or below 9.0 and equal to or greater than 6.0 and must not contain more than: (a) 0.05 milligrams per litre Total Cyanide; (b) 1500 microsiemens per centimetre Conductivity; or (c) 1000 milligrams per litre Salinity.

W3. There must not be any discharge from authorised discharge point 006, except: (a) run-off in excess of the volume resulting from a 1 in 20 year, 3 hour (or equivalent) storm event that occurs on the Premises; or (b) when the Cell 11 silt dam is drained as permitted by condition W4.

For the purposes of this condition, Australian Rainfall and Run-off Data from the Australian Bureau of Meteorology for the Premises is to be used to calculate the volume of run-off from a 1 in 20 year, 3 hour storm event.

W4. No waste is permitted to be drained to waters from the Cell 11 Silt Dam except water that contains not more than: (a) 50 milligrams per litre of Total Suspended Solids (TSS); (b) 140 milligrams per litre of Total Dissolved Solids; (c) 150 milligrams per litre of Dissolved Molybdenum; (d) 0.005 milligrams per litre of Total Cyanide; or (e) 12 milligrams per litre of Total Nitrogen as Total Nitrate plus Total Kjeldahl Nitrogen.

W5. The licensee must undertake all environmental monitoring and action all commitments specified in the document Environmental Management Plan Trial Irrigation to Land Project, Ross Mining NL dated

Location of authorised discharge point: Spillway from Site 3 Silt Dam

W1. All run-off within Control Drainage Area for Site 3 Silt Dam must be contained and directed to the Site 3 Silt Dam.

For the purposes of this licence, Control Drainage Area for Site 3 Silt Dam is defined by the unshaded areas of Cells 11-19 and cleared areas immediately north of heap leach pad cells and process ponds as outlined on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1.

At a glance

Court

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Judgment (464 paragraphs)

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Legislation Cited (1)

Cases Cited (18)

Cited By (9)