Donnelly v Solomon Islands Mining NL & Ors

5. The specific conditions of the development consent which are alleged to have been contravened by the Gold Mining Companies principally include a number conditions that were imposed on the grant of the development consent pursuant to the requirements of s 79B(9) of the Environmental Planning and Assessment Act 1979 (the EPA&A Act) which provides as follows: A consent authority that grants consent to the carrying out of development for which a concurrence has been granted must grant the consent subject to any conditions of the concurrence. This does not affect the right of the consent authority to impose conditions under section 80A not inconsistent with the conditions of the concurrence or to refuse consent.

6. In this respect, it is common ground that the concurrence of the Director-General NP&WS was required to the development proposed by the Gold Mining Companies' development application No 31/99 (lodged with the fourth Respondent) because the development was relevantly: development that is likely to significantly affect a threatened species, population or ecological community, or its habitat

within the meaning of the EP&A Act, s 79B(3) and it is also common ground that on 27 April 1999 the Director-General notified Tenterfield Council of his decision to grant concurrence pursuant to s 79B(8) subject to conditions specified in his written "Concurrence Report" and subject to "the implementation of the ameliorative measures contained in the SIS submitted on 19 March 1999".

7. The reference in the Director-General's notification to the Council to "the implementation of the ameliorative measures contained in the SIS" is a reference to the contents of chapter 6.4 of the Species Impact Statement prepared by ERM Mitchell McCotter on behalf of the Gold Mining Companies dated 22 December 1998 (the SIS). The SIS had been prepared following receipt of the Director-General's requirements for the preparation of the SIS notified on 30 November 1998 pursuant to the provisions of the Threatened Species Conservation Act 1995, ss 109 to 111 (TSC Act) following the request made on 2 November 1998 by the Solicitors for the Gold Mining Companies for the provision of such requirements.

8. In order to distinguish the conditions of the development consent which reflect the conditions imposed by the Director-General on the grant of his concurrence from other conditions imposed by the Tenterfield Council on the grant of the development consent, I shall hereafter refer to the former conditions as the "concurrence conditions".

9. The alleged contraventions of the concurrence conditions all occurred during a relatively short period of time in mid 1999 following the grant of the development consent on 11 May 1999. Although these are all matters of the past, they form the sole basis for the Applicant's present claims to remedial injunctive relief. (By consent of all the parties, the present hearing has reserved the question of the precise form of any remedial injunctive relief, if the Applicant demonstrates an entitlement to secure that relief by establishing his allegations of contraventions of the conditions of the development consent including the concurrence conditions, or his alternative claim that the development consent is nugatory and void.)

10. The question of the form of any remedial injunctive relief has been considerably complicated by the significant supervening fact that emerged late in the punctuated hearing of the present proceedings, namely the decision of the Gold Mining Companies to close the Timbarra Gold Mine and to initiate planning for the rehabilitation of the mining sites in accordance with the relevant obligations imposed by the relevant Mining Leases Nos 1386 and 1426 (in respect of which obligations the Department of Mineral Resources holds environmental guarantees from the lessee in the sum of $3.27 million).

11. It was following the public announcement made in mid 2001 to close the Timbarra Gold Mine that the hearing was by consent of the parties adjourned to enable them to consider their respective positions in the present litigation (including the question of the continuing utility of the proceedings, given the existing obligations for environmental rehabilitation imposed by the two relevant Mining Leases) and to consider whether the proceedings could reasonably be settled by the parties. An important question, raised but not answered in the present proceedings, concerns the question of the interrelationship between any remedial order that might be justified in the present proceedings and the overall obligation for mine site rehabilitation imposed by the Mining Leases 1386 and 1426, since obviously there is potential for overlap, if not conflict, between the different obligations requiring environmental rehabilitation of Mining Lease 1426.

12. At the outset of the final stanza of what had unfortunately become the protracted and punctuated hearing on 4 February 2002, the Applicant tendered a letter from the Applicant is against proposing a settlement of the case upon terms which required the Gold Mining Companies to submit for the Applicant's approval a detailed rehabilitation plan for the RMT site prepared by the Companies in consultation with relevant statutory authorities, and to pay to the Applicant an amount of $45,000 in respect of his costs in the proceedings. This open offer was rejected by the Gold Mining Companies and accordingly, the hearing was resumed and continued from 4 to 11 February 2002 upon which last mentioned day it was finally concluded, when judgment was reserved. B. THE ISSUES REQUIRING ADJUDICATION

13. Accordingly, to the Applicant's Second Further Amended Points of Claim, and the first, second and third Respondent's Points of Defence in response thereto, the following issues require adjudication -

(i) whether the Gold Mining Companies contravened the concurrence conditions as alleged;

(ii) whether the Gold Mining Companies contravened the conditions of the development consent imposed by virtue of the requirements of the Environment Protection Authority made in respect of the integrated development processes of the EP&A Act, s 91A(3) as alleged;

(iii) whether the Gold Mining Companies contravened other conditions of the development consent as alleged;

(iv) whether the conditions of the development consent alleged to be breached (or any of them) are rendered void by virtue of the operation of the Mining Act 1992, s 65(3);

(v) whether, in the event that the Court finds the Gold Mining Companies to have contravened any or all of the conditions of the development consent as alleged, the Court, in the exercise of its judicial discretion would withhold the injunctive relief claimed on account of the nature and environmental consequences of the contraventions;

(vi) whether the development consent is nugatory or void as alleged; and (vii) whether the Gold Mining Companies have breached s 118A and 118D of the National Parks and Wildlife Act 1974 (NP&W Act), as alleged.

14. Additionally, the Applicant's Further Amended Class 4 Application contains two allegations against the Director-General NP&WS - firstly that the approval he purported to grant pursuant to concurrence condition 1 of the development consent was void and of no effect because it was unreasonable (par 3) and secondly, that he had not complied with a subpoena for the production of documents that had been issued by the Applicant at an early stage in the proceedings (par 5).

15. The second allegation was not finally pressed at the final hearing and the Director-General has denied that his approval pursuant to concurrence condition 1 is void and of no effect.

16. In all other respects, the Director-General's participation throughout the hearing has been to provide assistance to the Court. In this assisting role, the Director-General has supported the Applicant in respect of a number of alleged contraventions of the conditions of the development consent and has supported the Gold Mining Companies in respect of other conditions alleged to have been contravened. In particular, the Director-General has opposed the Gold Mining Companies' reliance upon the Gold Mining Act, s 65(3) by way of defence to the majority of alleged contraventions of the conditions of the development consent, and especially in respect of the concurrence conditions. C. THE CONDITIONS OF THE DEVELOPMENT CONSENT THAT ARE ALLEGED TO HAVE BEEN CONTRAVENED

17. As earlier mentioned, the alleged contraventions of conditions of the development consent embrace three particular types of condition - namely (i) Concurrence conditions - being the conditions imposed upon the grant of concurrence by the Director-General NP&WS which were required to be imposed pursuant to the EP&A Act, s 79B(9). The Applicant's allegations involve the following conditions - Conditions 2(1), 2(4), 2(6), 2(7), 2(8), 2(9), 2(10), 2(15) and 2(17). (ii) Conditions imposed pursuant to the EP&A Act, s 91A(3) giving effect to the general terms of the approval proposed to be granted by the Environment Protection Authority. The Applicant's allegations involve the following conditions - Condition 3(3.2), 3(3.3), 3(3.6), 3 (6.2(a), 3(6.2)(c)(i)) 3(6.2(d)) and 3(6.2(h)); (iii) Conditions imposed by the Tenterfield Shire Council pursuant to the EP&A Act, ss 80(1) and 80A. The Applicant's allegations involve the following conditions - Conditions 6, 7, 9, 10 and 14.

18. The foregoing conditions were expressed in the development consent in the following terms: A. The Concurrence Conditions 2. The Applicant shall carry out the development in accordance with the conditions of concurrence recommended by the Director-General NPWS under section 79B NP&W Act 1974 (sic) being the following: Planning

1. A detailed plan documenting the locations where top soil and clearing debris will be stockpiled, and disposed (in the case of clearing debris), must be approved in writing by the Manager, Northern Zone NPWS prior to the commencement of clearing. Reason: To ensure that the areas used for the stockpiling of topsoil and clearing debris are suitably located away from areas that are not to be disturbed and do not adversely affect threatened species or the habitat of threatened species. Extent of clearing 4. The proposed development must not depart from the description contained in Chapter 3 of the SIS and all mitigation measures contained in Chapter 6 of the SIS must be fully implemented. Reason: To ensure that the impact of the proposal does not exceed that outlined in the Species Impact Statement and to ensure that the proposed ameliorative measures are implemented as described in the Species Impact Statement.

6. Sediment control measures must be implemented which minimise sediment leaving the areas of disturbance or clearing. These measures must be established and in place prior to the commencement of clearing. A sediment erosion control plan is to be prepared and submitted to and approved by the Manager Northern Zone NPWS prior to any works being undertaken. Reason: To minimise the entry of sediments into drainage lines that provide habitat for threatened frog species. Pre-clearing surveys 7. No clearing is to occur prior to mid - late spring (October - November) or after early - mid autumn (March - April) in any year without the approval in writing of the Manager, Northern Zone NPWS. 8. That pre-clearing surveys must be conducted for small mammals, arboreal fauna, large forest owls, amphibians, raptor nests and mobile ground fauna. The methods used for the pre- clearing surveys must include small mammal trapping, spotlighting, stag watching and ground traverses and occur in all areas to be cleared. Reason: To ensure that the pre-clearing surveys are undertaken in a suitable manner to effectively detect target species and prevent, wherever possible, injury or death to those species during operations. 9. Clearing must occur within one week of the conclusion of pre- clearing surveys. Reason: to reduce the likelihood of fauna species re-colonising areas to be cleared after pre-clearing surveys. 10. All records of threatened species detected during pre-clearing surveys and encountered during the construction and operation of the proposal must be provided to the Manager, Threatened Species, Northern Zone NPWS within two working days of the record being made. Reason: To ensure that NPWS is fully informed of the results of the pre-clearing surveys and any previously unrecorded threatened species so that additional ameliorative measures can be developed and applied as required. Feral Animal Control 15. The details of a comprehensive and effective feral animal control plan for the proposal must be submitted to the Manager, Northern Zone NPWS for approval prior to the commencement of clearing. Details of the timing, duration, methods, locations and estimated costs of the plan must be provided. The plan program is to commence prior to the commencement of clearing. Reason: To ensure that a comprehensive and effective feral animal is implemented throughout the course of construction, operation and decommissioning of the proposal. Monitoring and Research 17. A monitoring program is to be undertaken for Philoria kundagungan and Mixophyes balbus The monitoring program must aim to assess the ongoing status of the species and their habitats in the study area and associated creeks and drainage lines and determine whether any adverse impacts are occurring as a result of the proposal. The program should monitor both biotic and abiotic parameters such as frog species, water quality, hydrological changes and the condition of seeps, soaks and bogs. In addition, a research program is to be undertaken for Philoria kundagungan. This program will include a distribution survey of the species on the Timbarra Plateau, where possible, as well as investigations into the breeding biology, movements and habitat requirements of the species. Details of the timing, duration, methods, locations and estimated costs of the monitoring and research program must be provided. The monitoring and research programs are to commence prior to the commencement of clearing and must include investigations of populations of Philoria kundagungan and Mixophyes balbus in the catchment of Billy's Gully, Duncan's Creek and Maclean's Creek within the original Malara State Forest as relevant. The program is to be submitted to the Manager, Northern Zone NPWS for approval prior to commencement of clearing. Reason: To determine whether the proposal has any adverse impacts on the threatened frog Philoria kundagungan and Mixophyes balbus and to develop and apply additional ameliorative measures if required and to gather information on Philoria kundagungan that will assist in developing ameliorative measures to mitigate the potential impact of the proposal on the species, and to ensure that this locational information is publicly available.

B. The Integrated Development Condition Stormwater sediment control

3.2 No clearing, construction or operational work is to be carried out on the site until an integrated Erosion and Sediment Control Plan (ESCP) has been approved by the EP A. The ESCP must describe the measures that the occupier will implement during construction and operation to minimise: (a) soil erosion; (b) the discharge of sediment, turbid water and other pollutants to lands and/or waters; (c) the alteration of natural flow patterns. 3.3 ESCP must clearly specify environmental river flow and water quality goals and address the requirements of the National Water Quality Management Strategy, Australian Water Quality Guidelines for Fresh and Marine Waters. The ESCP must clearly outline works, practices and responsibilities that minimise the risk of not achieving these goals. In particular, the ESCP must note specific measures to address the requirements of the known aquatic flora and fauna in the receiving streams and riparian areas, especially the requirements of the threatened frog species Philoria Kundagungan (Mountain Frog) and Mixophyes balbus (Stuttering Frog) to the satisfaction of the NSW National Parks and Wildlife Service. 3.6 Prior to submitting the ESCP for EPA approval, the plan must be submitted to the National Parks and Wildlife Service and Department of Land and Water Conservation for their approval. Blasting 6.2 Blasting is not permitted on the Premises, except as permitted by the following conditions: (a) blasting must not take place on the Premises unless the occupier of the premise has prepared a written Final Blasting Schedule which details the time and date upon which blasting is to take place on the Premises;

(i) the occupiers of all residences within five (5) kilometres of the boundary of the Premises; and

(c) prior to the submission of the Final Blasting Schedule, the occupier of the premise must present a copy of a draft blasting schedule to;

(i) the occupiers of all residences within five (5) kilometres of the boundary of the Premises; and (ii) the occupiers of any other noise sensitive developments within five (5) kilometres of the boundary of the Premises.

(d) when the occupier of the premise presents a copy of the draft blasting schedule to any person referred to in 6.2 (c) above, the occupier of the premise must invite written comments or suggestions in relation to the draft blasting schedule. These are to be submitted to the occupier of the premise within a reasonable period. (h) a copy of the Final Blasting Schedule must be forwarded to every person referred to in 6.2(c) within one week of it being submitted to the EPA's Regional Office. A copy of any addition or amendment must also be forwarded to every person referred to in 6.2(c) within one week of it being submitted to the EPA's Regional Office. C. Other Conditions 6. Design drawings for the re-routed haul road shown on figure 2 of the Statement of Environmental Effects shall be submitted to Council prior to the commencement of construction. These plans are to incorporate the requirements of the Department of Land and Water Conservation and the Environment Protection Authority. 7. Prior to construction commencing at the RMT pit the Applicant shall submit to the Council a copy of the Mining Operations Plan approved by the Department of Mineral Resources and the pollution control approval granted by the Environment Protection Authority both relating to the proposed construction of the RMT pit. 9. Mining operations shall be conducted in accordance with the Mining Operations Plan approved from time to time by the Department of Mineral Resources. In addition to any requirement of the Department of Mineral Resources, it is a requirement of the Council that the Mining Operations Plan contains the following in relation to ML 1426: (a) the nature of the vegetation which is to be disturbed; (b) the approximate depth of topsoil to be removed as part of mining construction and operation; (c) the contours of the land to be disturbed as they were immediately before the conduct of mining operations; (d) the manner in which it is proposed to remove, store and replace topsoil; (e) plans and sections of the land indicating the location of the minerals to be mined; (f) a site plan of the land indicating the location of any mine workings, mine processing plant and other ancillary works on the surface of the land; (g) the methods to be used in the course of the conduct of mining (h) the order in which mining operations to be conducted on the various parts of the land; (i) the nature of the vegetation proposed to be planted in the course of the rehabilitation of the land; (j) the contours of the land as they are proposed to be after rehabilitation of the land has been completed; (k) the strategy for the disposal of waste products; (1) the management strategy for the minimisation of air and water pollution; (m) the management strategy for the minimisation of noise pollution; (n) the management strategy for the prevention of soil erosion; and (o) the management strategies for the rehabilitation of any land on which mining operations are conducted or related mining infrastructure constructed. 10. The Applicant shall lodge with the Council a copy of the Mining Operations Plan within 14 days after it is approved from time to time by the Department of Mineral Resources. 14. The Applicant shall pay the cost of having a representative of the Local Aboriginal Land Council present during the excavation of surface areas in connection with the approved development.

Faced with such a plethora of conditions of the development consent alleged to have been contravened, it will be helpful to note the context of the grant of the development consent by the Tenterfield Shire Council. The Council, in granting the development consent adopted the recommendations contained in the extensive written report (comprising 83 A4 typed pages) of its Director of Environmental Services.

That Report noted the fact that the Council had previously granted development consent on two separate occasions for essentially the same development for which consent for a third time was now being sought by the Gold Mining Companies. The first development consent was granted on 3 July 1997 (No 97/02) and the second development consent was granted on 18 December 1997 (No 97/30). The Report noted the following statement contained in the Statement of Environmental Effects accompanying the third development application (99/31): This application has been submitted for abundant caution and in no way implies any deficiency in the two existing approvals for the RMT Addition. Specifically, it will ensure that the Tenterfield Shire Council has had the opportunity of reassessing the proposal with the benefit of all currently available, relevant, environmental assessment information, including some information not available at the time of the previous application. This additional information includes a Species Impact Statement, currently before the National Parks and Wildlife Service for concurrence. This application also accommodates minor physical changes to the proposed RMT Addition now planned by Ross Mining NL.

The Report noted that the two earlier development consents had been the subject of separate legal challenges each brought by the Timbarra Protection Coalition Inc in this Court and that both proceedings had been discontinued in this Court on 28 April 1999.

I interpose that the challenge to the first development consent had failed in this Court but that an appeal against that decision had been allowed by the Court of Appeal on 9 February 1999 when the proceedings were remitted to this Court for redetermination: see Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52. However, the proceedings were discontinued before any such re-determination of the proceedings could occur.

The legal challenge to the validity of the second development consent had not been heard by the Court before the proceedings were discontinued.

The Report noted that "there is no legal obstacle to the Council processing a third development as is covered by the previous development consents".

Thereafter, the Report contains a detailed evaluation of the proposed development, before recommending the grant of development consent, subject to conditions, including the concurrence conditions imposed by the Director-General NP&WS and the conditions required to be imposed by the Environment Protection Authority as conditions of an "integrated development" consent.

Interestingly, the Report adopts the view expressed by the Solicitors for the Gold Mining Companies in their letter to the Director-General NP&WS requesting his requirements for a SIS that although a SIS was not required to accompany the development application, a SIS had been prepared "in order to circumvent any future legal challenges and avoid costly litigation".

It should be noted that although this same view had been expressed to the Director-General, in his concurrence Report furnished to the Council, he did not give any credence to, or acknowledgment of the view.

In his reasons for his decision to grant concurrence subject to 18 specified conditions, the Director-General, after noting that he had considered each of the matters enumerated in the EP&A Act, s 79B(5), states the following reasons: 2. On available evidence, the proposal, as ameliorated by the conditions of concurrence, is unlikely, in the opinion of the NPWS, to significantly compromise the local or regional viability of any threatened species known to occur on the subject site, with the possible exception of Philoria kundagungan and mixophyes balbus . Further research into the impacts of the proposal on these two species will be undertaken and additional mitigation measures implemented where necessary. 3. Generally, the impacts of the proposal on the threatened species considered in the SIS will be ameliorated by the effective implementation of the measures outlined in Section 6.4 of the SIS and the conditions of concurrence detailed in Section 10 of this report.

The Concurrence Report thereafter specifies the concurrence conditions, including the reasons for each condition, before the Director-General expresses his conditional concurrence in the following terms: Having reviewed the Development Application, Species Impact Statement, Statement of Environmental Effects and other supporting documentation, I am satisfied that the Director General's Requirements and the requirements of the EP&A Act have been met. Furthermore, subject to the implementation of the ameliorative conditions contained in the SIS and the implementation of conditions specified in Section 10 of this report, under section 79B (8) (a) of the EP&A Act, I grant my concurrence to this project.

In leaving the context to the grant of the development consent, it should be noted that no reliance has been placed by the Gold Mining Companies under the two earlier development consents. Other than as background facts, the existence of these two 1997 development consent has no relevance to the present proceedings. D. ADJUDICATION ON ISSUES IN DISPUTE

I propose to consider the issues requiring adjudication in the following order -

(i) The effect of the Mining Act 1992s 65(3) upon the alleged contraventions of conditions of the development consent; (ii) The alleged contraventions of the Concurrence Conditions; (iii) The alleged contraventions of the "integrated development" conditions; (iv) The alleged contraventions of the other conditions; (v) The alleged contravention of the NP&W Act, ss 118A and 118D; (vi) Whether the alleged contraventions of the conditions render the development consent nugatory and of no effect; (vii) Whether in the exercise of discretion, the Applicant is entitled to any substantive relief. (i.) Does the Mining Act s 65(3) apply to any of the conditions of the development consent alleged to have been contravened?

The Mining Act 1992, s 65 is in the following terms: (1) This section applies:

(a) in relation to a mining lease for a mineral or minerals, to land for which development consent is required before the land may be used for the purpose of obtaining minerals, and (b) in relation to a mining lease for a mining purpose or mining purposes only, to land for which development consent is required before the land may be used for that purpose or those purposes.

(2) The Minister must not grant a mining lease over land to which this section applies unless an appropriate development consent is in force in respect of the land. (3) If a mining lease is granted over land for which an appropriate development consent has been given: (a) any condition (being a special purpose condition within the meaning of Division 2 of Part 2 of Schedule 1) imposed on the development consent by a consent authority, or by a body hearing an appeal from a consent authority, is void, and (b) the development consent (to the extent only to which it relates to the use of the land concerned for the purpose of obtaining minerals) is taken to have been given free of the condition.

Schedule 1 to the Mining Act is headed "Public consultation with respect to the granting of assessment leases and mining leases". Part 1 deals with "assessment leases" and Part 2 deals with "Mining Leases" Div 2 of Part 2 of Schedule 1 which is headed: "Notification of Councils etc where development consent required for mining" contains four clauses, including the following definition contained in cl 15: In this Division: Special purpose condition means a condition concerning: (a) the preparation of land for mining, or (b) the mining methods to be employed while mining operations are being carried on, or (c) the rehabilitation of land, either while mining operations are being carried on or after they have ceased, or (d) the safety measures to be adopted, either before mining operations are commenced, while they are being carried on or after they have ceased, or (e) the security to be given with regard to the performance of any matter referred to in paragraph a), (b), (c) or (d).

The only reference to the term "special purpose condition" occurs in cl 13(1) which states: (1) Before granting mining lease (whether by tender or otherwise) over land to which this Division applies, the Minister: (a) must cause a written notice to be served on the applicant or tenderer requiring the applicant or tenderer, on or before the date specified in the notice, to apply to the appropriate consent authority for development consent to the use of the land for the purpose of obtaining minerals, and (b) must cause a written notice to be served on the consent authority concerned informing the authority:

(i) that the applicant or tenderer has been required to apply for development consent, and (ii) that proposals for the inclusion in the mining lease of conditions (including special purpose conditions) which the authority wishes to have included in the lease should be lodged with the Director-General on or before such date as is specified in the notice.

Mining Lease 1426 was granted by the Minister pursuant to the Mining Act by Deed dated 5 March 1998.

The Gold Mining Companies submit that the following conditions of the development consent fall within the definition of "special purpose condition" for the purposes of the Mining Act, s 65(3) and are, by force of that provision, void: - (i) Concurrence conditions 2(1), 2(4), 2(6), 2(7), 2(8), 2(9), 2(10), 2(15), and 2(17); (ii) "integrated development" conditions 3(3.2), 3(3.3), 3(3.6), 3(6.2(a), 3(6.2(c)(i)), 3(6/2(d)), 3(6.2(h));

The Gold Mine Companies Applicant submit that all of the "concurrence conditions", except for condition 2(17) and all of the "integrated development conditions" are conditions concerning "the preparation of land for mining" within the definition of special purpose condition and concurrence condition 2(17) and conditions 6 and 9 are conditions concerning "mining methods to be employed while mining operations are being carried on" within the definition of special purpose condition.

In submitting that the effect of s 65(3) is to render each of these conditions "void" (par (a) and to render the development consent "free" of those conditions (par (b)), the Gold Mining Companies acknowledge the apparent difficulty that arises in the application of that provision in the present case by virtue of the fact that the Mining Lease (1426) was granted before the grant of the development consent.

This difficulty confronting the Companies' argument arises directly from the different tenses employed by the relevant verbs contained in subsection (3) - namely (i) if a mining lease is granted (present tense) and (ii) (for which) an appropriate development consent has been given (perfect or past tense).

Thus, according to the statutory language employed, subsection (3) operates in a situation where an appropriate development consent has been given and thereafter a mining lease is granted.

The Companies seek to overcome this textual difficulty by suggesting that it would be an "absurd" combination of the provision if it applied where the appropriate development consent had been granted prior to the grant of the mining lease but if it did not apply if the sequence of events were reversed. But in truth this argument savours of re-writing the statutory language, rather than adopting a construction which avoids an absurd or inconvenient result.

There is, in my opinion, no absurdity or inconvenience if the subsection is interpreted according to its natural and ordinary meaning. On the contrary, when the section is read as a whole and in context, it strongly supports the natural and ordinary meaning of the language of subsection (3). In particular, s 65(2) forbids the granting of a mining lease "unless an appropriate development consent is in force" and s 65(1) applies the section to a mining lease applying to land "for which development consent is required before the land may be used for the purpose of obtaining minerals". See also s 63(4). Accordingly, it is plain beyond argument that in terms of the s 65 relationship between the grant of an appropriate development consent and the grant of a mining lease in respect of the same land, is such that the former must temporally precede the latter.

On the facts of the present case, it is clear that when the Minister granted Mining Lease 1426 on 5 March 1998, there was in existence the two earlier development consents granted in 1997 by Tenterfield Shire Council for the RMT extension to the Timbarra Gold Mine that I have earlier referred to. Their existence doubtless provided the statutory warrant (in terms of s 65(2)) for the grant of the Mining Lease. On those known facts, s 65(3) may have applied in relation to any condition (being a "special purpose condition") if such condition had been imposed by either or both of those development consents.

Although the conditions upon which those 1997 development consents were granted were not revealed by the evidence adduced in the present case, one very relevant fact can nonetheless be asserted with certainty - namely that neither of those 1997 development consents would have contained the "concurrence conditions" and the "integrated development conditions" that were imposed by the development consent, the focus of the present proceedings, because the relevant provisions of the EP&A Act providing for the imposition of such conditions were not introduced until 1 July 1998 when the Environmental Planning and Assessment (Amendment) Act 1997 (Act No 152 of 1997) was proclaimed to commence.

However, as I have earlier noted, the 1997 development consents are not relied upon by the Gold Mining Companies in the present case which concerns only the development consent granted on 11 May 1999 a little more than one year after Mining Lease No 1426 had been granted.

In my judgment, s 65(3) has no application to the development consent granted on 11 May 1999 because it does not qualify as "an appropriate development consent (that) has been given" within the meaning of s 65(3) because it was granted after the Mining Lease was granted.

The construction of s 65(3) that I have adopted not only fulfils the literal meaning of the provision but also fulfils its apparent purpose. That purpose includes the detailed statutory regime for public and private notification of the proposed grant of a mining lease that is contained in Part 2 of Schedule 1 to the Mining Act. That regime includes Division 2 which specifies notification requirements in cases "where development consent is required for mining".

As earlier noted, the notification requirement imposed by cl 13 of Part 2 of Schedule 1 requires the Minister to require the applicant for the mining lease to apply to the appropriate consent authority for the grant of development consent for the use of land for mining and also requires the Minister to notify the consent authority of the opportunity to inform the Director General of his Department what mining lease conditions (including "special purpose conditions") it wishes to have included in the mining lease.

This statutory regime clearly recognises (i) the necessity for an appropriate consent authority to grant the requisite development consent (which may be granted, subject to conditions including "special purpose conditions") before a mining lease may be granted, and (ii) the opportunity for the consent authority to notify the Minister's Department of what conditions (including "special purpose conditions") which it wishes to have included in the conditions of the Mining Lease. Moreover, this process is undertaken in the open knowledge by the appropriate consent authority that s 65(3) of the Mining Act" operates upon the grant of a mining lease, to render void any "special purpose conditions" imposed on any development consent that it may grant for the proposed mining activity, but with the prospect that those same conditions will have been imposed as conditions of the mining lease if the consent authority has so informed the Minister's Department.

Thus, in a case like the present case (where the Mining Lease No 1426 was granted more than one year before the development consent was granted), there would be no occasion prior to the grant of that development consent for the appropriate consent authority to have been notified in accordance with the statutory regime in place under Part 2 of Schedule 1 to the Mining Act and therefore there would be no opportunity for the consent authority to express its wish that certain conditions be imposed on the mining lease. Such a case clearly falls outside the scope and ambit of s 65(3), whether that provision be construed literally or purposively, because there is absent the requisite relationship between the development consent and the mining lease.

For the foregoing reasons, I hold that s 65(3) does not apply to the conditions of the development consent granted by Tenterfield Shire Council on 11 May 1999 and that the Gold Mining Companies' reliance or defence based upon s 65(3), entirely fails.

What I have held by way of construction of s 65(3) in respect of the temporal relationship between the grant of a development consent and the grant of a mining lease, appears to be entirely consistent with the decision of the Court of Appeal in Winn v Director General National Parks and Wildlife (2001) NSWCA 17 which considered s 116 of the 1973 Mining Act (being the statutory antecedent to s 65(3) of the current Mining Act) as is shown by the following passage at par 237 in the judgment of Stein JA: If the Minister had made a requirement under s 116(1), and development consent was granted followed by the grant of a mining lease, then under s 116(4) nothing in or done under any planning law could prevent the leaseholder from carrying on mining operations. To the extent that the consent purported to do, it would be of no force and effect. However, this immunity was only conferred on an applicant for a mining lease who obtained development consent. The consent must therefore have been obtained prior to the mining lease for ss (4) to have effect. Talbot J so found. The immunity did not apply to ML594 since it was granted before the grant of development consent by the Council Subsection (4) did not apply to the excision leases since, as at the date of the issue of the 1978 consent, RZM was not an applicant for any mining lease.

Counsel for the Gold Mining Companies submitted that the provisions of the Mining Act 1973 were relevantly different from the provisions of the current Mining Act inasmuch as the earlier provisions were predicated upon the fact that the development consent had to precede the grant of the mining lease. In my opinion, the relevant regiment under s 116 of the 1973 Act is substantially perpetuated by the regime of the current Mining Act.

My conclusion that s 65(3) has no application in respect of the development consent (the subject of the present proceedings) means that it is not necessary for me to determine whether the relevant conditions fall within the statutory definition of "special purpose condition". Nor is it necessary for me to consider the argument advanced on behalf of the Director-General NP&WS that even if the relevant conditions could be so characterised, they were of such a nature as to justify a dual characterisation with the other characterisation being "environmental protection" conditions. In developing this argument, Counsel drew attention to the provisions of Part 11 of the Mining Act which is headed "Protection of the environment". The logical force of the argument was that if the relevant conditions, by virtue of the nature and content justified such a dual characterisation, the "voiding" operation of s 65(3) although operating in relation to "special purpose conditions" would not operate in relation to the other characterisation of those conditions as "environmental protection conditions". This interesting argument, which is not without obvious difficulty, may safely be left for another case in which the question is fairly and squarely raised and requires adjudication.

Another matter, not explored in argument and best left for another case, concerns the fact that I have earlier mentioned, namely that the concurrence conditions and the integrated development conditions that were imposed upon the grant of the development consent were compulsorily imposed by the Tenterfield Shire Council, as the consent authority, by virtue of the obligations respectively imposed by the EP&A Act, ss 79B(9) and 91A(3) which provisions only came into force on 1 July 1998 when Act No 152 of 1997 amended the EP&A Act. It is at least arguable that the enactment of these provisions of the EP&A Act, after the enactment of the Mining Act 1992, impliedly repeals s 65(3) of the earlier Act because of inconsistency between the relevant provisions of the two Acts. There was no such inconsistency when the Mining Act was enacted in 1992 because there were no provisions contained in the EP&A Act, dealing with (i) the Director-General's concurrence role emanating from the Threatened Species Conservation Act; and (ii) integrated development - where those provisions compel the consent authority to impose conditions on the grant of development consent. E. ALLEGED CONTRAVENTIONS OF THE CONCURRENCE CONDITIONS

The relevant concurrence conditions are Conditions 2(1), 2(4), 2(6), 2(7), 2(8), 2(9), 2(10), 2(15), and 2(17).

The Gold Mining Companies admit that concurrence conditions 2(6), 2(7), 2(10) and 2(17) were contravened. They deny all other alleged contraventions of the concurrence conditions and in this respect are supported by the Director-General NP&WS. I shall defer consideration of the Gold Mining Companies' submission (which does not have the support of the Director General) that no relief should be granted in respect of the admitted contraventions, because they only involve technical or insignificant breaches without involving any adverse environmental consequences.

Hence, the disputed allegations are confined to concurrence conditions 2(1), 2(4), 2(8), 2(9) and 2(15) which I shall separately consider. (i.) Concurrence Condition 2(1)

The terms of this conditional recited in paragraph 18.

The evidence establishes the following relevant facts -

(i) Following the release of the Director-General's Concurrence Report and the receipt of a number of letters from the Gold Mining Companies, a meeting was held on 4 May 1999 between representatives of the Gold Mining Companies and the National Parks and Wildlife Service (the Service) to discuss the Director-General's concurrence conditions.

(ii) The Gold Mining Companies followed up that discussion with a letter dated 5 May 1999 to the Service which included the following content relevant to concurrence condition 2(1) - All topsoil and clearing debris will be either placed or disposed of in cleared areas within the RMT pit or haul road, or removed from lease 1426 to already cleared areas on lease 1386 such as the area cleared for the waste minings. Could the Manager Northern Zone for this plan grant the approval in writing?

(iii) By letter dated 10 May 1999, the Services' Manager Threatened Species Northern Zone, on behalf of the Director General, responded to the several requests made by the Gold Mining Companies in respect of the Director-General's concurrence conditions. That response included the following content relevant to Concurrence Condition 2(1): Condition 1 The NPWS notes your advice that all topsoil and clearing debris from approved clearing activities in ML 1426 will be placed or disposed of in cleared areas within the RMT Pit or haul road, or in areas already cleared on ML 1386. On the basis that no additional areas will be cleared or used for placement or storage of topsoil or debris, the NPWS approves the top soil/debris disposal plan.

(iv) Clearing activity on Mining Lease 1426 commenced on 14 May 1999.

The Gold Mining Companies submit that these facts do not support a finding that there has been a contravention of the condition. In so submitting, reliance is placed upon the definition of the word "plan' contained in the Macquarie Dictionary - namely "a scheme of action or procedure". It is submitted on behalf of the Companies that their proposal for storage and disposal of topsoil and clearing debris outlined in their letter to the Service is relevantly a "plan".

The Director-General supports these submissions.

In my judgment, the Companies' letter did not satisfy the requirements of the condition that there be "a detailed plan documenting the locations" of the stockpiled material. The Companies' proposal was not a detailed plan. Nor did it document the locations for the stockpiled material.

I am satisfied that this alleged contravention has been established.

This finding means that it is not necessary for me to consider the conflicting evidence as to whether the stockpiled material was placed on already cleared land. It also means that it is not necessary for me to adjudicate upon the Applicant's claim that the approval given on behalf of the Director-General to the Companies' proposal was so unreasonable as to be a nullity.

For all the foregoing reasons, I find that the contravention as alleged has been established. (ii.) Concurrence Condition 2(4)

The terms of this condition are recited in paragraph 18.

The Applicant's allegation is that the failure to provide a "post clearing" report to the Service constitutes a breach of the following requirement contained in Section 6.4.5 of the SIS (and hence constitutes a contravention of the Concurrence Condition): A post-clearing report is to be submitted to NPWS detailing the clearing procedures

The context of this particular obligation imposed upon the Gold Mining Companies should be noted. It occurs in Section 6.4.5 which is headed "Pre-clearing surveys", being a subset of the "Mitigation Measures" that are specified in s 6.4 of the SIS.

The whole passage in which the particular obligation is imposed is as follows: Pre-clearing surveys are to be undertaken as close as practicable to the clearing period and shall be undertaken according to the pre-clearing survey protocol. A post-clearing report is to be submitted to NPWS detailing the clearing procedures. NPWS will be notified immediately if a threatened species previously unrecorded on Timbarra Plateau is found during pre-clearing surveys or during clearing activities. In this case, all clearance activities will be immediately suspended, pending consultation with the NPWS Northern Zone Threatened Species Manager.

According to the evidence of Ms Martin, Consultant Ecologist to the Gold Mining Companies, which I accept, a "final draft" of the post clearing report was submitted to the Service on 14 December 2000 and she has not received any response.

This action was taken during the course of the early stages of the hearing in these proceedings. The report addressed clearing activities that had occurred on Mining Lease 1426 more than 12 months earlier. By any account, this was a leisurely compliance with the obligation, although I accept Ms Martin's explanation that delay was experienced because of the massive amount of data which was required to be factored into the computer database that she had prepared.

Despite this finding, I do not think that the alleged contravention has been established. This conclusion is reached, not simply because the obligation was not expressly cast with any attendant time stipulation (clearly, there should be implied into the obligation a condition that the report would be submitted within a reasonable time after the clearing activities had been completed) but because the obligation itself is not a "mitigation measure contained in Chapter 6 of the SIS" within the meaning of Concurrence Condition 2(4). Rather, it is an ancillary or auxiliary obligation to the several mitigation measures stipulated in Section 6.4 of the SIS.

For all the foregoing reasons, I find that the alleged contravention has not been established. (iii.) Concurrence Condition 2(8)

The terms of the Condition are recited in paragraph 18.

According to Ms Martin's evidence (affidavit sworn 27 October 2000) pre-clearing surveys were not conducted for amphibians "as there was no appropriate habitat for such species in the areas cleared": par 24.

This opinion is amplified in par 17 of her affidavit where she states: Further, the haul road from Mining Lease 1386 to the RMT Pit and the RMT Pit did not contain any potential habitat of threatened frogs and was not located in any seepage lines or creeks that may have contained potential habitat. It was accordingly my opinion that, provided that appropriate sediment and erosion control measures were in place, it was not necessary to be able to detect the presence of any threatened frogs prior or during clearing of the haul road to the RMT Pit or the RMT Pit.

Ms Martin further amplifies her opinion in pars 8 and 9 of her affidavit sworn 8 December 2000.

Notwithstanding Ms Martin's opinion as to why pre-clearing surveys were not conducted for amphibians (and in particular the stuttering frog and the mountain mist frog), it is clear that the condition required such survey to be undertaken in respect of these frog species which are included in the Director-General's Concurrence Report as vulnerable "threatened species" recorded in the Study Area.

Accordingly, I find that the alleged contravention has been established in respect of these two frog species. (iv.) Concurrence Condition 2(9)

The terms of this condition are recited in par 18.

Ms Martin in paragraphs 26 and 27 of her affidavit sworn 27 October 2000 provides details of when pre-clearing surveys were completed and when the subsequent clearing was undertaken. The clearing activity was undertaken in four stages - (i) the haul road; (ii) the sedimentation drains for the pit; (iii) stage 1 of the pit; and (iv) stage 2 of the pit. In the case of each stage, the clearing activity was undertaken immediately following the completion of the pre-clearing survey. The relevant dates of the clearing activities were -

(ii) sedimentation drains for pit - 31 May 1999; (i) stage 1 of pit - 8 and 9 June 1999; and (ii) stage 2 of pit - 21 August 1999.

This evidence was not challenged or refuted and I accept it.

It follows that this alleged contravention has not been established, and I so find. (v.) Concurrence Condition 2(15)

The terms of this condition are recited in par 18.

The documentary evidence establishes the following relevant facts - (i) Following the discussion held between representatives of the Gold Mining Companies and the Service the Companies wrote to the Service on 5 May 1999 and stated the following in relation to concurrence condition 2(15): Condition 15. The proposed feral animal control program will be as developed in section 2.5 and amendments of the Threatened species Management Plan. The sites for the free feeding bait stations are shown on the accompanying map. These sites have been carefully selected to provide the best chance of detecting feral animals moving along the edge of tracks and the Timbarra road. Details of the timing and duration are documented in the separate report on the feral animal control program (Martin, 1997b). The estimated cost of the planned activities for year 1 is $12,727.50. This plan has been operating since February 1999. (ii) In his letter of 10 May 1999 in response, the Manager Threatened Species Northern Zone advised as follows: Condition 15 The NPWS notes that the Species Impact Statement (SIS) and the TSMP and amendments prepared by Ross Mining detail the proposed feral animal control plan and approves the content of the plan. The NPWS notes from the SIS and section 2.5 of the TSMP that Ross Mining is committed to the provision of adequate resources to fully implement the feral animal control programme. The NPWS notes and approves the six proposed locations for feral animal control bait stations along the access road and in ML 1386 and ML 1426. In accordance with the amendments to the TSMP, free-feeding at these stations is to be monitored for four consecutive nights each two month period and, where feral predator activity is identified, free-feeding is to be continued until at least five nights have elapsed where only feral predator activity has been recorded, before placement of a poisoned bait. The NPWS notes that implementation of this plan has commenced. (iii) A Feral Animal Control Program prepared by Ms Martin in 1997 for the Timbarra Gold Project, and incorporated into the Threatened Species Management Plan (also prepared by Ms Martin), has been extended to apply to the RMT site and as such has been operating since mid 1999.

The Service, in its letter dated 10 May 1999 notified its approval of the Companies' proposal, being a proposal that fulfilled the requirements of the concurrence condition.

I find that the alleged contravention has not been established. F. ALLEGED CONTRAVENTIONS OF THE INTEGRATED DEVELOPMENT CONDITIONS

The relevant integrated development conditions are conditions 3(3.2), 3(3.3), 3(3.6), 3(6.2(a)), 3(6.2(c)(i)), 3(6.2(a)) and 3(6.2(h)).

The Gold Mining Companies admit that integrated development conditions 3(3.2) has been contravened but denies all other allegations of contraventions of the integrated development conditions.

It is convenient to deal with the contested allegations in two separate brackets - (i) conditions 3(3.3) and 3(3.6), dealing with sediment control and (ii) conditions 3(6.2(a)), 3(6.2)(c)(i)), 3(6.2(d)), and 3(6.2(h)) dealing with blasting. (i.) Integrated Conditions 3(3.3) and 3(3.6)

The terms of these conditions are recited in par 18.

The evidence establishes the following relevant facts -

(i) The Gold Mining Companies by letter dated 3 May 1999 sought the approval of the Service to the sediment and erosion control plan contained in the SIS.

(ii) The Service's response by letter dated 10 May 1999 advised as follows: The NPWS has been advised by the Environment Protection Authority (EPA) that is will require revision of the sediment and erosion control plan for the haul road to RMT and the RMT pit. The NPWS advises that it will consider approval for the sediment and erosion control plan for the haul road to RMT and the RMT pit after it has been revised to the satisfaction of the EPA.

(iii) On 6 May 1999, the Environment Protection Authority notified the Gold Mining Companies of the need for them to revise the sediment and erosion control.

(iv) On 21 May 1999 revised sediment and erosion control plan was submitted to the Service, the EPA and Department of Land and Water Conservation (DLWC).

(v) By letter dated 16 June 1999 the Gold Mining Companies sought the approval of the Service to the revised sediment and erosion control plan advising that it had been approved by the EPA and DLWC.

(vi) The EPA approved the revised sediment and erosion control plan on 26 May 1999, DLWC approved it on 30 June 1999 and the Service approved it on 11 August 1999.

On the basis of the foregoing facts, I find that the alleged contraventions have not been established. (ii.) Integrated Conditions 3(6.2(a), 3(6.2(c)(i)), 3(6.2(d)) and 3(6.2(h))

The terms of these conditions are recited in par 18.

I am satisfied on the evidence of Mr Rosengren, the Plant Operations Manager of the Timbarra Gold Mine, that the full requirements of Condition 3(6.2) were not complied with. In particular, material details of the proposed blastings at the mine were omitted in the written notices given to relevant residents.

Accordingly, I find that the alleged contravention of Condition 3(6.2) has been established. G. ALLEGED CONTRAVENTIONS OF OTHER CONDITIONS (i.) Condition 6

The terms of this condition are recited in par 18.

The documentary evidence (Exhibit 37) establishes that the haul road design drawings for stages 1 and 2 of the haul road were submitted to the Tenterfield Council with the Gold Mining Companies' letter dated 23 June 1999.

Clearing for the relevant sections of the haul road was undertaken on 14 May 1999.

The Companies submit that based upon these facts, there has been no contravention of the condition because it required the submission of the road design drawings "prior to the commencement of construction" and the clearing activity undertaken was not "construction".

In advancing this submission, the Companies draw attention to the wording of other conditions of the development consent requiring things to happen "prior to" stated events and in particular to the conditions which specify "clearing" as the relevant event. They submit that "clearing" is distinguished from "construction".

I think that the Companies' suggested construction of the condition is a reasonable one and that, in its context, the concept of "commencement of construction" of a haul road does not extend back to the clearing activity which is a necessary prelude to, but not the commencement of, the construction activity.

Accordingly, I find that this alleged contravention has not been established. (ii.) Conditions 7, 9 and 10

These conditions can be considered together. The terms of the conditions are recited in par 18.

The documentary evidence (Exhibits 36 and 37) establish the following relevant facts -

(i) on 3 February 1999 the Gold Mining Companies submitted to the Department of Mineral Resources (DMR) a variation of the Timbarra Mining Operations Plan (MOP) to include the RMT site;

(ii) on 31 March 1999 the DMR notified the Companies of its approval of the MOP variation.

(iii) the content of the MOP variation did not include all of the information referred to in Condition 9.

(iv) on 23 June 1999 the Companies submitted to the Tenterfield Shire Council a copy of the MOP variation.

The Gold Mining Companies submit that condition 9 is ultra vires the power of the Council conferred by ss 80 and 80A of the EP&A Act impose conditions on the grant of development consent, to the extent that it encroaches upon the power of the DMR and the Minister under the Mining Act 1992 to impose requirements on mine lessees in relation to mining operations.

In my judgment, the Companies' argument to the effect that the second sentence of Condition 9 is ultra vires, the power of the Council is sound insofar as that sentence would operate to require of the content of the MOP something more than that which is required by the Minister or the DMR exercising the powers conferred by the Mining Act in that behalf.

On the established facts, it is clear that condition 10 was contravened because the approved MOP was submitted to the Council more than 14 days after it had been approved by the DMR.

Accordingly, I find that the alleged contraventions of Conditions 7 and 9 have not been established and that the alleged contravention of Condition 10 has been established. (iii.) Condition 14

The terms of this condition are recited in par 18.

The Gold Mining Companies admit that this condition was contravened. H. THE APPLICANT'S CLAIM THAT THE DEVELOPMENT CONSENT IS NUGATORY AND VOID

The Applicant's claim is said to be founded upon a principle contained in the judgment of Stein J (when a judge of this Court) in Oshlack v Iron Gates Pty Ltd (unreported 6 March 1997).

In that case, his Honour, having found that a number of breaches of a development consent for a residential subdivision were "serious" and that "the deleterious effect on the environment arising from the breaches of consent and work beyond its bounds, is and will be substantial" came to consider the exercise of the judicial discretion conferred by the EP&A Act, s 124 to grant or to withhold a remedy.

It was in that context that his Honour accepted the submission "that the manner in which the development has been undertaken so far make it impossible for the development to be completed as originally envisaged" (p 30). His Honour continued at p 31: It is apparent that the development cannot now be carried out in the manner which the development application outlined, and which Council approved. In effect, the developer's conduct has rendered the consent nugatory

Having made such findings, relevant to the exercise of the discretion conferred by the EP&A Act, s 124, it is interesting to note that the extensive relief granted did not include a declaration that the development "was nugatory or void" but did include a prohibitory injunction restraining the respondent from carrying out any development "pursuant to" that development consent.

In my respectful opinion, the decision of Stein J in Oshlack v Iron Gates does not establish any principle of law that a development consent may be declared to be nugatory or void on account of the impossibility of the approved development being carried out conformably to that consent, because of the unauthorised manner (including exceeding the bounds of the development authorised by the consent) in which the development has been partly carried out. Rather, the decision supports the proposition that the Court, in the exercise of its discretion conferred by the EP&A Act, s 124, may in a case where relevant breaches of planning law have been established, restrain the carrying out of further development pursuant to the relevant development consent because the breaches of the planning law mean that it is no longer possible for the approved development to be carried out in conformity with the development consent.

Turning to the facts of the present case, the question is whether the admitted or proven contraventions of the conditions of the development consent have created a situation where it can be fairly said that, by virtue of the existence of those contraventions, it is no longer possible for the approved development to be carried out in conformity with the development consent.

In my opinion, this question must be answered in the negative. The relevant contraventions of the conditions in the present case are not of a nature and kind that would preclude the possibility of the approved mining development being carried out in accordance with the development consent. I. ALLEGED CONTRAVENTIONS OF SS 118A AND 118D OF THE NP&W ACT

Section 118A relevantly provides as follows: (1) A person must not: (a) harm any threatened species, population or ecological community, being an animal, or …………… (3) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the alleged offence: (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

"Harm" is defined by s 5(1) of the Act as follows: harm an animal (including an animal of a threatened species, population or ecological community) includes hunt, shoot, poison, net, snare, spear, pursue, capture, trap injure or kill, but does not include harm by changing the habitat of an animal.

Section 118D relevantly 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:

(i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or

In support of its allegation of contraventions of s 118A, the Applicant relies upon the undisputed evidence of the death of a brush-tailed phascogale (a "vulnerable" "threatened species" as defined in the TSC Act which definition is adopted by the NP&W Act) found on the RMT site on 9 June 1999.

The Applicant invites the Court to infer that its death was caused by the trap that had been employed by the Gold Mining companies in conducting pre-clearing surveys as required by concurrence Condition 2(8).

The Applicant also relies upon the opinion of Dr Michael Mahony (par 10 of this affidavit Exhibit 11) that two and possibly three breeding sites of the Mountain Mist Frog (a "vulnerable", "threatened species" in terms of the TSC) near the headwaters of Duncans Creek had been completely destroyed by the construction of the RMT pit.

The Gold Mining Companies contest these allegations and rely upon the evidence of Ms Martin concerning the probable cause of death of the brush-tailed phascogale and upon the evidence of Ms Martin and Dr Robertson in rebuttal of Dr Mahony's opinion that two or three breeding sites of the Mountain Mist Frog were completely destroyed by the construction of the RMT pit.

So far as concerns the brush tailed phascogale, I accept Ms Martin's opinion that it is likely that death was by natural causes rather than by the trapping process. Even if the trapping had contributed to the death, I would not find any relevant contravention of s 118A because although "trap" is included in the definition of "harm", trapping that was carried out as part of the pre-clearing survey in accordance with the requirements of the concurrence conditions would not, in my judgment, fall within the definition of "harm" or within the scope of activity proscribed by s 118A(1).

So far as concerns the Mountain Mist Frogs, I think that the combined force of the opinion evidence of Ms Martin and Dr Robertson that the two or three breeding sites opined by Dr Mahony to have been destroyed by the construction of the RMT pit were not in fact so destroyed, outweighs Dr Mahony's opinion, particularly in the light of concessions freely made by Dr Mahony under cross-examination.

For all these reasons, I find that the alleged contraventions of s 118A have not been established.

Concerning the alleged contraventions of s 118D, it is common ground that the clearing undertaken on the sites of the haul road and of the RMT pit involved "damage to habitat of a threatened species population or ecological community" within the meaning of the section.

The clearing of those sites involved some 6 hectares of a total allowance for site clearing of 13.3 hectares. (The latter figure was the maximum amount of clearing permitted by Concurrence Condition 2(5)). It is also common ground that the clearing of the section of the haul road leading to the RMT pit and of the RMT pit itself involved habitat of both flora and fauna threatened species and that this was known to the Gold Mining Companies.

The only question therefore that arises is whether the clearing activity that was undertaken on Mining Lease 1426 was "essential for the carrying out of development in accordance with a development consent…." within the meaning of the statutory defence provided by s 118D(2)(b).

Since the relevant facts are not in dispute, the question is simply a question of statutory construction.

The Gold Mining Companies submit that the statutory defence is available to them on the facts of the present case. In support of this submission, they submit that "the defence is available to the alleged contravention under s 118D unless the breach of the development consent is related to or causes the destruction of habitat referred to in s 118D".

In my opinion, this argument involves a misconstruction of the statutory defence. It is apparent that the statutory defence is intended to be available to a person who is carrying out development "in accordance with a development consent".

In the present case, the Companies have admitted a contravention of Concurrence Condition 2(7) which forbade the occurrence of "clearing prior to mid-late spring (October - November)…..etc".

It follows from earlier findings and admissions that the clearing of the RMT pit (involving some 5 hectares) occurred in June and August 1999 in direct contravention of Concurrence Condition 2(7). (The Service had authorised clearing in May 1999 and it was during that month that the relevant section of the haul road was cleared.)

Accordingly, the clearing of the RMT pit which was in direct contravention of Concurrence Condition 2(7) inevitably meant that that clearing was not "essential for the carrying out of development in accordance with a development consent" because clearly that clearing was not in accordance with development.

It follows that the statutory defence is not available to the Companies in respect of the clearing of the RMT pit involving an area of 5 hectares containing relevant habitat.

Accordingly, for all of the foregoing reasons, I find that the alleged contravention of s 118D has been established. J. IS THE APPLICANT ENTITLED TO ANY REMEDIES FOR THE ADMITTED OR PROVEN CONTRAVENTIONS?

Finally, I come then to consider this question, which has been argued in a manner that requires me to determine, in the exercise of judicial discretion, whether any substantive relief should be granted in these proceedings, recognising that the parties have argued the question as a matter of principle and have not addressed the question of the appropriate form of relief that may be granted.

Firstly, it is necessary to summarise the relevant statutory contraventions that have been admitted or proved in these proceedings, as follows -

(i) Contraventions of the Concurrence Conditions of the development consent - Concurrence Conditions 2(1), 2(6), 2(7), 2(10) and 2(17).

(ii) Contraventions of the Integrated Conditions of the development consent - Integrated Conditions 3(3.2) and 3(6.2).

(iii) Contraventions of other conditions of the development consent - Conditions 10 and 14.

Numerically stated, the contraventions are significant - nine conditions of the development consent were contravened and s 118 was contravened.

I have earlier noted the Gold Mining Companies' submission that the contraventions of the conditions of development consent were technical or minor in nature and insignificant in character and environmental consequence. Much of the extended hearing was devoted to an exploration of these contentions.

At the end of the hearing, the Director-General contended that the contraventions of the concurrence conditions were not technical, minor or inconsequential contraventions.

Although the Gold Mining Companies have attempted to demonstrate that there were no significant environmental consequences of the contraventions and that a number of the contraventions are clearly technical and minor, the case that they have mounted has failed to come to terms with the important legal consequences of some of the contraventions. These legal consequences are that all of the clearing activity was undertaken, not only in contravention of relevant conditions of the development consent, but unlawfully in the sense that it was simply not covered or authorised by the development consent at all. I am here referring to the contraventions of conditions which required specified things to happen "prior to the commencement of clearing" - eg concurrence conditions 2(1), 2(6) and 2(17) and integrated development conditions 3(3.2) which respectively required the following matters to be satisfied "prior to the commencement of clearing" -

(i) approval of the detailed plan documenting locations for stockpiling cleared materials;

(iii) monitoring and research program for the threatened frog species - Mountain Mist Frog and Stuttering Frog; and (i) approval of an integrated erosion and sediment control plan.

The legal consequence of the failure to comply with these requirements is that the clearing activity undertaken on the haul road and RMT pit (involving some 6 hectares of land clearance) was unlawfully undertaken in breach of the EP&A Act, s 76A - see Green v Kogarah Municipal Council (2001) 115 LGERA 231. Although that was a case concerning the provisions of the EP&A Act dealing with the statutory lapsing of a development consent, the legal analysis contained in pars 63 to 67 of the judgment of Giles JA is apposite to the present case where the proper construction of the relevant conditions that I have cited is that they forbid the carrying out of the permitted development (or more precisely an aspect of that permitted development, namely land clearing) unless the requirements made by the conditions are first satisfied.

These legal consequences of the contraventions of the relevant conditions, in my opinion, present an insurmountable obstacle to the Gold Mining Companies' submission that the Court, in the exercise of its discretion would decline to grant any substantive relief in respect of these contraventions. The submission, in effect, must be to the effect that the unlawful clearing of 6 hectares of habitat for threatened species (both flora and fauna) does not justify the granting of any remedy. I would reject this submission as being manifestly untenable.

The extensive evidence adduced by the Gold Mining Companies sought to demonstrate that there were reasons for the contraventions (eg misunderstandings) that the contraventions were not blatant, that many of the obligations that had been contravened, were otherwise being fulfilled by the Companies and that no environmental harm, by virtue of the contraventions, had been established.

Even if I were to accept the totality of the evidence advanced by the Companies as providing explanations for their conduct and as establishing that the contraventions did not create environmental harm, I would not be persuaded that the contraventions do not justify the grant of any substantive remedy.

In my judgment, the contraventions of the conditions of the development consent and of s 118D of the NP&W Act are of such a nature as to justify in the exercise of discretion the granting of substantive remedies under the EP&A Act, s 124 and under the NP&W Act, s 176A.

The justification for the grant of a remedy under the EP&A Act, s 124 is enhanced once the true legal consequence of the contraventions of a number of the conditions that I have earlier mentioned, is appreciated. K. CONCLUSIONS AND ORDERS

For all the foregoing reasons, I find that there have been contraventions, as earlier noted, of nine of the conditions of the development consent and there has been a contravention of the National Parks and Wildlife Act, s 118D.

I also find that the Applicant is entitled to substantive relief in respect of those contraventions.

The precise nature of that relief cannot be formulated at this stage. However, as a matter of principle, the relief should encompass appropriate declarations and mandatory injunctions to remedy the contraventions.

1. The Applicant has established his entitlement to the grant of substantive relief in respect of the admitted or proven contraventions of the conditions of the development consent and of the NP&W Act, s 118D.

2. The question of the precise form of that relief is reserved.

3. The Applicant has liberty to restore for the purpose of obtaining substantive relief on 7 days' notice.

4. The question of costs is reserved.
5. Pending completion of the proceedings, the exhibits are to remain with the Court's file.

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