Williams v NSW Minister for Planning

9 On 25 March 2008 Barrick lodged a request that the Minister modify the approval pursuant to s 75W of the EPA Act. This was called the E42 Modification request and has since also been called the Modification 6 request. Barrick lodged a supporting environmental assessment in August 2008.

10 In November 2008 the applicant brought proceedings in this Court against the Minister and Barrick seeking, among other things, a declaration that the E42 Modification 6 request was not a request within the meaning of s 75W. I heard the proceedings in December 2008 and reserved judgment.

11 The Minister informed Barrick that he would defer determination of the E42 Modification 6 request until the legal proceedings were determined.

12 On 5 February 2009 I delivered reasons for judgment upholding one of the grounds of challenge to the E42 Modification 6 request: Williams v Minister for Planning [2009] NSWLEC 5, 164 LGERA 204. I held that (a) the question whether a request to "modify" an approval fell within s 75W was a precondition to the exercise of the Minister's power of approval and was a jurisdictional fact for the Court to decide if challenged; (b) a request to "modify" an approval for a project did not include a radical transformation of the terms of an existing approval; and (c) as a matter of fact the E42 request required such substantial changes to the approval as to take it outside s 75W. I foreshadowed making a declaration and injuncting the Minister from determining the request and directed the parties to bring in short minutes of order to reflect my decision.

13 In the meantime, on 30 January 2009, Barrick submitted to the Minister an application to modify the development consent pursuant to s 96(1A) of the EPA Act (Modification 7 application) together with a statement of environmental effects (SEE).

14 On 11 February 2009 the Department of Planning provided a report to the Minister's delegate assessing the Modification 7 application.

15 On the same day the Minister's delegate approved the Modification 7 application subject to conditions (Modification 7). 16 On 13 February 2009 I made orders in the E42 Modification 6 proceedings including a declaration of invalidity of the E42 Modification 6 request and an injunction restraining the Minister from determining it.

17 In March 2009 Barrick filed a notice of appeal against my orders.

18 On 23 June 2009 Barrick submitted to the Minister an application to modify the development consent pursuant to section 96(1A) of the EPA Act (Modification 8 application) together with a SEE.

19 In July 2009 the Court of Appeal heard the appeal.

20 On 28 August 2009 the Department of Planning provided a report to the Minister's delegate assessing the Modification 8 application.

21 On the same day the Minister's delegate approved the Modification 8 application subject to conditions (Modification 8).

22 On 3 September 2009 the Court of Appeal delivered reasons for judgment: Barrick Australia Ltd v Williams [2009] NSWCA 275, 74 NSWLR 733, Basten JA (McColl JA agreeing) held that (a) the preferred construction of s 75W is that it confers on the Minister an implicit obligation to be satisfied that the request falls within the scope of s 75W; and (b) as that factual assessment was to be made by the Minister and not by the Court, I erred in undertaking that assessment. Sackville AJA concurred in the result but disagreed with the pluralities' reasoning. In his Honour's view, (a) the making of a request that is limited to seeking a "modification" of approval (properly construed) is not an essential precondition to the exercise of the Minister's power; (b) even if the proponent's request "overreaches", the Minister may exercise his power to modify; (c) the Minister (or the Director-General) is not obliged, in the course of processing a request, to be satisfied that the request seeks no more than a "modification" of approval; and (d) no doubt if the request seeks more than can lawfully be granted, there may be consequences for the proponent.

23 The Court of Appeal did not decide what "modification of an approval" in s 75W means or does not mean; in particular, whether it does not include a radical transformation of an existing development consent (as I had held). Basten JA (McColl JA agreeing) noted the absence of a definition, commented on the context in which the expression must be understood, and concluded that the Court should be wary of invitations to explain the meaning of the statutory language. Sackville AJA preferred to express no view as to the meaning of "modification of approval" as used in s 75W. His Honour acknowledged that the meaning may have a bearing on the scope of the powers entrusted to the Minister, in particular whether any approval must comply with objective standards in order to be lawful or whether it is sufficient for the Minister to be satisfied of certain matters (and, if so, what matters): at [64].

24 In October 2009 Barrick submitted to the Director-General an E42 Modification Modified Request, which was placed on the Department of Planning's website. The E42 Modification 6 Modified Request reduced the scope of the E42 Modification 6 request. In March 2010, the Minister approved the E42 Modification 6 Modified Request.

25 Meanwhile, in November 2009, Mr Williams commenced these proceedings.

26 Notwithstanding that one of the objects of the EPA Act is to provide increased opportunity for public participation in environmental planning and assessment (s 5(c)), a remarkable if not paradoxical feature of the statutory scheme is the absence of any legal obligation on the Minister to publicly notify modification applications under Pt 4, and he did not do so in the case of Modification applications 7 and 8. Section 96(1A) requires the Minister to notify a modification application in accordance with the regulations if the regulations so require and to consider any submission; but there are no such requirements in the regulations and therefore there were no submissions (contrast with the obligation to make publicly available a modification request under Pt 3A: s 75X(2) and cl 8G EPA Regulation). Consequently, the applicant appears to have been unaware of the Modification 7 and 8 applications until after they were approved.

GROUNDS OF CHALLENGE 27 The grounds of challenge to the validity of Modifications 7 and 8 are as follows:

(a) the Minister failed to consider the life of the mine; (b) the Minister failed to consider the public interest; (c) the Minister failed to consider the cumulative effect of each Modification in conjunction with the E42 Modification 6 proposal; (d) the Minister failed to give proper regard to whether the development consent as modified by Modifications 7 and 8 was substantially the same development as the development for which the consent was originally granted; (e) the Minister's decision to grant Modifications 7 and 8 was motivated by a collateral purpose; (f) Modifications 7 and 8 were uncertain by reason of condition 3.6 of each Modification, which obliges the proponent to carry out rehabilitation of mine areas; (g) in the case of Modification 8, the Minister failed to properly consider the likely impact on the environment of the proposed new INCO method of cyanide destruction and thereby also failed to properly consider the public interest; (h) in the case of Modification 8, the Minister failed to properly consider the likely impact on the environment of the proposed clearing of 40 hectares of "sensitive environmental areas" and thereby also failed to properly consider the public interest; (i) in the case of Modification 8, the Minister failed to properly consider the likely impact on the environment of the proposed saline borefield and thereby also failed to properly consider the public interest. 28 As there were two separate modification decisions, the challenges to their validity should be considered separately. THE STATUTORY SCHEME 29 The applicant anchors his various grounds of challenge to one or more of three requirements of the EPA Act:

(a) the requirement that the Minister be satisfied that the consent as modified is substantially the same development as that which was originally granted: s 96(1A)(b); (b) the requirement that the Minister consider the likely impacts of the development on the natural environment: s 79C(1)(b), s 96(3); (c) the requirement that the Minister consider the public interest: s 79C(1)(e), s 96(3). 30 Those statutory provisions provide: " 96 Modification of consents - generally

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the proposed modification is of minimal environmental impact, and (b) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all),

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 79C (1) as are of relevance to the development the subject of the application.

(1) Matters for consideration - general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

… (b) the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality, … (e) the public interest. 31 The Minister's satisfaction as to each of the matters referred to in s 96(1A)(a) and (b) is a jurisdictional fact: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16, 240 CLR 611 at [23] - [24]. The applicant does not expressly plead a jurisdictional fact issue. The avenue of judicial review to which the applicant ostensibly pins his colours is failure to consider whether the development as modified is substantially the same development as the development for which consent was originally granted. However, in effect this raises the s 96(1A)(b) jurisdictional fact issue for if the Minister failed to consider that matter, he could not have been satisfied as to it. There is no pleaded allegation relating to s 96(1A)(a). 32 An administrative decision may be vitiated if the decision-maker fails to take into account a mandatory and relevant consideration: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39, 55.

33 One of the objects of the EPA Act is the encouragement of the principles of ecologically sustainable development: s 5(a)(vii). That object informs the mandatory public interest consideration in s 79C(1)(e) such that ecologically sustainable development must be considered in the context of the public interest: see the review of the authorities in my judgment in Walker v Minister for Planning [2007] NSWLEC 741, 157 LGERA 124 at [76] - [137] (on appeal Minister for Planning v Walker [2008] NSWCA 224, 161 LGERA 423 at [63]). MODIFICATION 7 34 The applicant submits that Modification 7 is invalid on the grounds listed at [27] above. 35 Modification 7 is to:

(1) expand the surface dimensions of the open pit from 1000 x 850m (about 70ha) to 1100m x 1051m (about 95ha) within the approved mine disturbance area of 951 ha; (2) increase the total quantity of waste rock from 128 million tonnes (Mt) to 136.6 Mt (as a result of (1) above), and relocate 1.4 Mt of previously mined waste rock from the perimeter emplacement to the northern and southern emplacements; (3) increase the height of parts of the northern and southern emplacements by 10m and 15m respectively (to accommodate the waste rock referred to in (2) above); (4) reduce the height of sections of the perimeter waste emplacement by between 5m and 12.5m (as a result of the relocation referred to in (2) above); (5) contemporise certain conditions contained in the mine's Environmental Protection Licence. 36 When considering the Modification 7 application, the Minister's delegate had two documents before him: the SEE accompanying the Modification 7 application and the Department's assessment report. The SEE explained that (a) it had been lodged due to the delay in the process of the E42 Modification 6 request and proposed changes which were part of those proposed in that request; (b) the widening of the open pit was to allow for factors of safety and the long term stability of the lake protection bund; and (c) the proposed modification would not change (inter alia) the mine area, total ore production, life of the mine, mining methods, method of development, processing methods, disturbance area, lake isolation system, and many other specified matters. Table 1 in the SEE compared the scope of the development permitted by the consent as originally granted, as it had been modified pursuant to previous decisions under s 96(1A), and as it was proposed to be modified under Modification 7. 37 The Department's assessment report recorded that the Department had consulted with a number of relevant government agencies, none of whom raised any issues with the proposed Modification 7. The Department was satisfied that Modification 7 could be carried out with minimal environmental impact and that the development as modified was substantially the same development as the originally approved development. The report quoted s 79C(1) of the EPA Act and the Department's assessment of the matters therein. The Department was also satisfied that the modification had considerable merit in that it would (a) ensure the ongoing efficiency of the mine, and (b) be in the public interest because it would maintain the current levels of employment, thereby helping to secure ongoing socio-economic benefits. The Department believed the benefits substantially outweighed any residual costs and that the proposal should be approved subject to conditions. The Life of the Mine 38 The applicant contends that in determining the Modification 7 application, the Minister failed to consider the operational life of the mine which, under the development consent, was 13 years comprised of eight years mining followed by five years processing. Those 13 years ran from 2005 to 2018: Williams v Minister for Planning [2009] NSWLEC 5, 164 LGERA 204 at [15]. 39 The SEE accompanying the Modification 7 application was before the Minister's delegate and made clear that the proposed modifications did not involve any change to the life of the mine. The Department's assessment report to the Minister's delegate also stated that there was no such change as a matter that was relevant to determining whether he could be satisfied, in accordance with s 96(1A)(b), that the consent as modified would be substantially the same development as the development for which the consent was originally granted. None of the modifications in fact affect the life of the mine. Consequently, I do not accept this ground. The Public Interest 40 The applicant alleges that the Minister did not consider the public interest. Consideration of the public interest was mandatory under s 79C(1)(e) of the EPA Act. The Department's assessment report set out the terms of s 79C(1) and then stated that it was satisfied that the proposed modifications were generally in the public interest because of the continuation of employment and ongoing efficient operations of the mine. The conclusion thereunder contained a statement concerning the merit of the proposal including a reference to the public interest, and a statement that the Department believed that the benefits substantially outweigh any residual costs. 41 Given that the report not only referred to the public interest but identified a reason why the proposal was in the public interest, I do not accept that the public interest was not considered. Cumulative Impacts 42 The applicant alleges that the Minister's delegate was bound, but failed, to consider the cumulative impacts having regard to the E42 Modification 6 request. 43 The Minister did not consider, and in my opinion was not obliged to consider, the cumulative effect of the E42 Modification 6 request. During the period in which the Modification 7 and 8 applications were on foot, the Minister was forbearing from determining the E42 Modification 6 request and had not even received the statutory report from the Director-General of the Department, consideration of which was a condition precedent to determination of the request: s 75J(2). By the time the Modification 7 application was approved, I had held that the E42 Modification 6 application did not fall within s 75W and had foreshadowed making an order restraining the Minister from determining the application, which order was later made: see [12] and [16] above. That order was not set aside by the Court of Appeal until September 2009: see [22] above. Consequently, I do not accept this ground. Ulterior or Collateral Purpose 44 If the applicant's allegation is that Modifications 7 and 8 were made for the ulterior or collateral purpose of extending the mine life beyond that which had been approved, then since neither Modification made any amendment to the mine life, the allegation cannot be sustained. 45 If the allegation of an ulterior or collateral purpose assumes that the Minister could not approve any modification pending determination of the E42 Modification 6 request, I do not accept the assumption. The applicant appears to consider that the Modification 7 and 8 applications attempted to seek by stealth what was sought in the E42 Modification 6 request (a premise that may have been inflamed by the fact that those applications were not publicly notified). However, they could only be approved if the Minister's delegate was satisfied that the consent as modified would be substantially the same development as the development for which the consent was originally granted: s 96(1A)(b). That provision is important because it insures against any "creep" factor and is more restrictive than s 75W pursuant to which the E42 Modification 6 request was submitted.

46 For these reasons, I do not accept that it has been established that the Minister's delegate had an ulterior or collateral purpose. Uncertainty 47 The applicant pleads that there was uncertainty flowing from condition 3.6, which obliges Barrick to carry out rehabilitation of mine areas. Neither Modification 7 nor Modification 8 alters condition 3.6. I reject this ground. Conclusion on Modification 7 48 No vitiating error has been established in relation to Modification 7. The claim in relation to Modification 7 therefore must be dismissed. MODIFICATION 8 49 The applicant contends that modification 8 is invalid on the grounds listed at [27] above.

(a) increase the height of the balance of the northern and southern waste emplacements by 10 metres and 15 metres respectively; (b) increase the total northern waste emplacement by 30 hectares; (c) realign a small portion of the up-catchment diversion system (UCDS) around the northern waste emplacement; (d) implement a cyanide destruction method (the INCO process) as an alternative to the Caro's Acid method; (e) establish a borefield and associated infrastructure next to the mine at the ground surface of Lake Cowal to access saline groundwater from an aquifer beneath Lake Cowal. 51 When considering the Modification 8 application, the Minister's delegate had two documents before him: the SEE for Modification 8 and the Department's assessment report relating thereto. As the Minister's delegate was the same person who had considered Modification 7 earlier in the year, he had also considered the SEE and Department Report relating to Modification 7. 52 The SEE for Modification 8 stated that it proposed changes to the waste emplacements, cyanide destruction methods and waste supply to optimise efficiency while the larger and more complex E42 Modification 6 request remained outstanding as a result of the pending legal proceedings. 53 The SEE explained the changes as follows. Local resources stockpiled in the northern waste emplacement area were proposed to be utilised in the later progressive rehabilitation of the mine site. The proposed height increases in the northern and southern waste emplacement would allow this stockpiled rock to remain in its current location until areas became available for its use in progressive rehabilitation of the mine site. It would also increase the efficiency of haulage operations. The proposed alternative cyanide destruction method would produce significant cost savings whilst maintaining the same, originally approved residual cyanide concentrations. The introduction of a saline groundwater supply borefield would reduce demand on the originally approved external freshwater supply sources. The borefield would be operated only during times when the borefield was not inundated by Lake Cowal. 54 The SEE noted that the modification did not involve any changes to the following approved development components: total ore production; ore processing rate; life of the mine; total water requirement; open pit area or final pit dimensions; lake isolation system; waste rock production rates; tailing production; number or location of tailings storage facilities; water management processes; cyanide destruction levels; power supply; or employment.

55 Table 2 in the SEE contained a comparison between the scope of the development permitted by the consent as originally granted, as it had been modified pursuant to previous decisions under s 96(1A) (including Modification 7), and as it was proposed under Modification 8.

56 The Department's assessment report to the Minister's delegate recommended that the application be approved subject to conditions. The report recorded that the Department had consulted with other relevant government agencies which either had no objection to or supported the modifications. In the report the Department summarised the key areas of potential impact and, overall, was satisfied that the modifications would have minimal environmental impact, principally because (a) the increase in the northern waste emplacement area would have minimal impact on flora and fauna due to the disturbance area being subject to previous vegetation clearing and cropping; (b) the proposed saline groundwater borefield would not impact on the water flows of Lake Cowal or groundwater availability for surrounding properties; (c) the proposed changes were a minor modification to the originally approved operations; and (d) any consequential impacts would be of a similar nature as existing impacts and of such an extent that they would be difficult to discern from existing impacts.

57 The Department was satisfied that the consent as modified would be substantially the same development as that approved in the consent for four reasons: (a) the layout of the mine as modified would be much the same as the layout of the mine as originally approved with a single open pit, two large tailings dams, two waste emplacements, and surface facilities generally being located in the approved disturbance area; (b) the increase in surface disturbance to accommodate the proposed extension of the northern waste emplacement and consequential drainage diversion represents a minor increase (around 4%) to the total approved disturbance of the mine; (c) the introduction of the INCO cyanide destruction method would involve the substitution of one method for another and achieve the same result; and (d) the intensity of the mine's operations, the mine's production rates, and the mine's life would remain the same. The New INCO method of Cyanide Destruction 58 The Modification 8 application proposed a new method of cyanide destruction, the INCO method, as an alternative to the Caro's acid method. 59 The applicant contends that the Minister in his consideration pursuant to s 79C(1)(b) and (e) of the EPA Act failed to give proper regard to the impact on the environment and to the public interest resulting from the INCO cyanide destruction method. 60 Cyanide has been the leaching agent used for extracting gold at the Cowal gold mine. As explained in the 1998 EIS for the original development consent, in terms of toxicity, cyanide acts as an asphyxiant and can kill fauna including fish and birds, large numbers of which use Lake Cowal. The 1998 EIS noted the Commission of Inquiry's concern as to whether zero bird deaths as a result of cyanide toxicity could be achieved. Cyanide can be controlled through destruction techniques. The cyanide destruction method at the Cowal gold mine has been by Caro's acid. It was the method proposed in the 1998 EIS and approved. The 1998 EIS identified the disadvantages of another destruction method, the INCO method, as follows: "Additional treatment may be necessary for thiocyanite, cyanate, metals and ammonia, if release criteria are required. Strict control of process variables required." 61 The 1998 EIS indicated that although the thiocyanite and cyanate by-products produced by the INCO method were considerably less toxic than free cyanide, they were likely to have environmental impacts unless they were subject to additional processing in that they could be toxic to fauna, including birds and fish, at certain levels. 62 That likely environmental impact was not identified in the Modification 8 SEE or the Department's assessment report to the Minister and was not otherwise brought to the attention of the Minister's delegate. The 1998 EIS was in the possession of the Department.

63 It is in these circumstances that the applicant complains that the Minister's delegate failed to properly consider the likely environmental impacts of the INCO method and thereby also failed to properly consider the public interest. 64 The complaint should be considered against the background of what the Minister did consider. The Modification 8 SEE and the Department's report for Modification 8 were before the Minister and have been discussed at [52] - [57] above. In addition, they addressed the proposed new method of cyanide destruction as follows: (a) the SEE stated that as a result of the change to the INCO process, as an alternative to the Caro's acid method, significant cost savings would result. The SEE recorded that the tests Barrick had commissioned indicated that the INCO process was capable of cyanide destruction to the current approved levels. Accordingly, Barrick considered that the process would maintain the same, originally approved residual cyanide concentrations. The SEE noted that the Cyanide Management Plan would be revised to include a description of the INCO process, and the mitigation and management issues described in that plan, including the monitoring process, would continue. The SEE quoted a geo-environmental consultant's report that the INCO process was expected to result in "comparable concentrations of sodium and sulphate in the tailings supernatant. A Department officer appears to have written by hand "more or less?" next to the word "comparable";

(b) after noting the above matters, the Department's assessment report to the Minister observed that predictions indicated an increase in the concentrations in sodium and sodium sulphate in the tailings supernatant of 22 per cent and 24 per cent respectively and that the SEE considered these were "comparable" with current levels. Those percentages appear to have been derived by the Department from figures in the E42 Modification 6 Environmental Assessment. The Department expressed its satisfaction that the impacts of these increased concentrations would be negligible. The report said that a review of Barrick's management plans and monitoring programs would be appropriate in light of the proposed changes, that any contamination issues associated with the modifications would be suitably managed through proposed mitigation measures that would be outlined in revisions of management plans, and that potential impacts of the modification were minimal. 65 The respondents submit that the Minister was not obliged to consider the 1998 EIS and therefore did not have to consider the disadvantages and environmental impact of the INCO method which it identified. The submission is based on a distinction between mandatory considerations and consideration of relevant supporting documents: Minister for Local Government v South Sydney City Council [2002] NSWCA 288, 55 NSWLR 381; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23, 143 LGERA 277 at [73]; Tugun Cobaki Alliance Inc v Minister for Planning [2006] NSWLEC 396 at [35], [36], [134]. 66 Whether a decision-maker who is bound to consider certain matters is also bound to consider relevant supporting documents depends, in my view, on the terms of the applicable legislation and may depend on whether the matters mandated for consideration can be properly considered without reference to the relevant documents.

67 In Minister for Local Government v South Sydney Council the Court of Appeal held at [211]: "I see nothing wrong in principle with an examiner and reporter, or even a decision-maker, assigning to an agent the task of recording, collating, organising and summarising a mass of submissions covering a range of discordant issues (see Tickner v Chapman (1995) 57 FCR 451 at 464, 476-477). Anyone familiar with controversial environmental impact studies would recognise this as a common method of handling material that would be lost or overlooked because of its sheer mass and complexity. Naturally there are submissions and submissions, and some will call for additional attention. But it is unrealistic and unhelpful to expect a single decision-maker or a small panel of decision-makers to wade through every submission in the first instance. It will always be open to those mounting administrative law challenges to argue that the substance or detail of particular submissions have not been considered or taken into account, but the onus of establishing such allegations will rest upon them." 68 In Tugun there was a challenge to the validity of an approval under Part 3A of the EPA Act. Section 75I mandated that the Director-General was to give a report on a project to the Minister for the purposes of the Minister's consideration of the application and that the report was to include (inter alia) a copy of the proponent's environmental assessment. Section 75J(2) mandated that the Minister, when deciding whether or not to approve the carrying out of the project, was to consider the Director-General's report and any reports, advice and recommendations contained in the report; any advice provided by the Minister of a public authority; and any findings or recommendations of a Commission of Inquiry. Jagot J did not construe s 75J(2) as meaning that the Minister was bound to consider the proponent's environmental assessment (or response to issues raised in the submissions): at [35], [36], [134]. 69 In Kindimindi at [73] the Court of Appeal held: "…submissions and supporting materials are not generally treated as constituting part of the mandated considerations. Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088 Gummow and Callinan JJ noted at [24]: 'To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.' In an appropriate case, it will also constitute a constructive failure to exercise jurisdiction: at [25]. See also comments by Kirby J at [87] and [88]. On the other hand, the relevant consideration relied upon in the present case might have been identified as the likely impacts of the development, a requirement identified in s 79C(1)(b) which, arguably, could not have been properly considered without reference to the specific conditions proposed to be attached to the consent. However, little attention was paid to the need to distinguish between mandatory considerations, and relevant supporting documentation." 70 In my view, Kindimindi tends to support the applicant's case. The relevant consideration relied upon in the present case is the likely environmental impacts of the development, a requirement identified in s 79C(1)(b), which I do not think could have been properly considered without reference to the disadvantages and impact of the INCO method identified in the 1998 EIS in the possession of the Minister's Department. 71 In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 certain Aboriginal people made a statutory land claim. The Aboriginal Land Commissioner's statutory function was to recommend to the Minister whether to grant land to a land trust for the benefit of Aboriginals and, in his report, to "comment" on (but not determine the effect of) detriment to others that might result if the claim were acceded to. Where the Commissioner recommended that a grant be made and the Minister was satisfied that it should be, the Minister was empowered to recommend that course to the Governor General. The Commissioner held an inquiry and recommended that a grant be made of part of the land. Exploration companies had discovered a large deposit of uranium in that land. The Commissioner commented on the detriment that a grant might have on the companies, but was unaware that the deposit lay wholly within the part recommended for the grant. Thereafter the companies informed the then Minister of the true position. A successor to the Minister, who was unaware of that information, recommended to the Governor-General that a grant should be made of land which included the land containing the deposit.

72 There was no express statutory requirement that the Minister consider the Commissioner's comments. Nor was there any statutory provision for interested parties who might suffer detriment to have an opportunity to make submissions to the Minister. Nevertheless, the High Court held there were implications to be derived from the statutory scheme that (a) the Minister was bound to have regard to the Commissioner's comments, and (b) where such submissions were made which "may have a direct bearing on the justice of making the land grant" the Minister was bound to have regard to the submissions (at 44-45).

73 The High Court held that the Minister's recommendation was void on the ground that he was bound to have regard to the information provided to his predecessor in office. Gibbs CJ agreed generally (at 30) and Dawson J agreed (at 71) with the reasons of Mason J. Deane J agreed generally (at 70) with the reasons of Brennan J. The following principles identified by the High Court are relevant in the present case: (a) the ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision: at 39 per Mason J; (b) the Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power: at 55 per Brennan J. The "level of particularity with which a matter is identified for the purpose of applying this principle may be significant": Foster v Minister for Customs and Justice [2000] HCA 38, 200 CLR 442 at [23] per Gleeson CJ and McHugh J. That may be significant where it is not suggested that the Minister had entirely neglected a mandatory consideration but where a particular level of detailed inquiry is said to be required: Foster at [23]; (c) there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker: at 45 per Mason J; (d) the Minister cannot ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of the matter, and proceed instead on the basis of material that may be incomplete, inaccurate or misleading: at 45 per Mason J; (e) the Minister is bound to consider the matter "in the light of the actual facts as disclosed by the material in his possession": at 30 per Gibbs CJ, followed in Gales Holdings Pty Ltd v Minister for Infrastructure and Planning [2006] NSWCA 388, 69 NSWLR 156 at [190]; (f) material in the possession of the Department must be treated as being in the possession of the Minister and within his knowledge: at 31 per Gibbs CJ, 45 per Mason J, 66 per Brennan J; (g) the Minister may rely on a summary of the relevant facts furnished by officers of his Department. But if that summary fails to bring to the Minister's attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account in accordance with law: at 30 - 31 per Gibbs CJ; (h) the facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered: at 61 per Brennan J. 74 In my opinion, the above principles should be applied in the present case as follows: (a) the Minister was required to have regard to the likely environmental impact of the proposed INCO cyanide destruction method: s 79C(1)(b) EPA Act ; (b) there is an implication in the subject matter, scope and purpose of the EPA Act that the power which it confers to make an administrative decision under Part 4 is to be made on the basis of the most recent material available to the decision-maker. That included the 1998 EIS where relevant; (c) the present case is analogous to Peko-Wallsend . Although the Department had not received a submission (unlike Peko-Wallsend ) drawing attention to the environmental impacts of the INCO method - which is unsurprising since the modification application had not been publicly notified - the Department was in an equivalent if not better position because it was in possession of the 1998 EIS which had been submitted to a predecessor in office of the Minister in connection with the original development consent; (d) the 1998 EIS in the possession of the Department must be treated as having been in the possession of the Minister and could not be ignored if it had a direct bearing on the justice of the matter; (e) the 1998 EIS had a direct bearing on the justice of the Minister's consideration of the likely environmental impacts of the INCO method because it indicated that the INCO method was likely to have environmental impacts unless the by-products which it produced were subject to additional processing before being released into the environment, in that they could be toxic to fauna, especially birds and fish, at certain levels; (f) the Modification 8 SEE and Department report, on which the Minister's delegate relied, failed to bring that disadvantageous environmental impact to his attention; (g) that impact was of such importance that, as it was not considered by the Minister's delegate, it could not be said that the likely environmental impact of the INCO method had been properly considered; (h) the failure complained of is not a complete failure to address the subject of likely environmental impact. Nor is it a failure to make some inquiry in that respect outside information in the Department's possession. It is a failure to address the likely environmental impact of the INCO method identified in the 1998 EIS in the Department's possession. Failure to consider it meant that the delegate did not consider all of the environmental impacts of this new method known to the Minister's department.

75 For these reasons, I uphold the applicants' contention concerning the INCO method of cyanide destruction and conclude that, in consequence, the 2008 Modification is invalid. Clearing of 40 hectares of "sensitive environmental areas" 76 The applicant submits that the Minister, in his consideration pursuant to s 79C(1)(b) and (e) failed to give proper regard to the impact on the environment and to the public interest resulting from the proposed clearing of 40 hectares of "sensitive environmental areas" which were planned as part of the mine rehabilitation. 77 This proposed modification involved an increase in the total disturbance area by 40 hectares from 950 hectares to 990 hectares. It was considered in the Department's assessment report which recorded that the Department of Planning and the Department of Environment, Climate Change and Water (DECCW) were both satisfied that any additional impacts were likely to be minimal. 78 The 40 additional hectares of land to be disturbed described in the report comprised (a) 30 hectares of Secondary Native Grassland with scattered trees associated with the increase to the northern waste emplacement, two small soil stockpiles and a realignment; and (b) 10 hectares of Swamp Canegrass Grassland within the lake bed associated with the saline groundwater supply borefield. The Secondary Native Grassland with scattered trees had been subject to nearly complete land clearing as a result of previous pastoral use. Its floristic condition was considered to be poor. Dead wood and dead trees (ie stag trees) would be removed and placed either on the lakebed or on the proposed offset area to improve habitats for wildlife. Hollow bearing trees would be removed but this was likely to result in minimal environmental impact to any fauna species given the scattered nature of stag trees and the strategies to minimise the impact of clearing activities. The Swamp Canegrass Grassland vegetation within the lakebed (the condition of which would vary with the flooding cycle of the lake) had been subject to livestock grazing and, in some areas, cropping. Trees were absent from this vegetation community.

79 The report noted that the SEE indicated that both areas had been heavily disturbed by previous agricultural activities. The report noted that there were no listed endangered populations or ecological communities in the proposed modification areas and that the impact on fauna would not be significant. The report noted that a series of plans were required for the mine in accordance with the consent; and that Barrick proposed to offset the disturbance by revegetating approximately 40 hectares of land to the south of the project site. A condition was imposed requiring Barrick to prepare and implement an offset strategy in consultation with DECCW and to the satisfaction of the Director-General. The report concluded that due to the level of previous disturbance and with the addition of an offset area, the Department and DECCW were satisfied that the impacts associated with the clearing of vegetation would be minimal.

80 There seems to have been an error in the report in that it said at one point that no trees would be cleared as a result of the proposed modification, although it is unclear whether this statement was referable only to the northern waste emplacement area. However, earlier on the same page it stated that the land clearance included scattered trees in the 30 hectare area and on the next page the report correctly indicated that tree hollows would be disturbed. Having regard to all those statements and to the fact that the Minister also considered the SEE, I am not satisfied that the Minister failed to give proper consideration to this aspect. Consequently, I do not accept this ground. The saline borefield 81 The applicant submits that the Minister, in his consideration pursuant to s 79C(1)(b) and (e) failed to give proper consideration to the likely environmental effect and the public interest by reason of the significant cumulative impacts resulting from "the risk of damaging the fragile Lake Cowal ecology and aquifer system by establishing the saline bore".

82 The Modification 8 SEE referred to a review of mineral drilling records identifying a prospective local saline alluvial aquifer located within the area of the mining lease, to the east and south of the open pit. Tests on the aquifer indicated that a borefield of approximately four bores could supply one million litres per day of saline water. Barrick proposed to operate the borefield during times when it was not inundated by Lake Cowal, which meant that it would operate in drier times and be rested in wetter times when the contained water storages would make up the supply from this source.

83 The clearing associated with installing the borefield has been dealt with above. As Barrick acknowledged in the SEE, there were potential hazards associated with the introduction of the saline borefield, (a) potential leaks or spills from failure of the saline groundwater supply pipeline delivering water from the borefield to the CGM process water dam; and (b) potential public safety risks due to possible accidental damage to borefield infrastructure during a lake full scenario. 84 A risk assessment undertaken in relation to these hazards assessed the maximum reasonable consequence to be minor and a probability assessment concluded they would be rare events. In addition to the hazard prevention and mitigation measures which formed part of the numerous plans Barrick was required to have in place under the consent, it also proposed shut-down and removal of pumps during periods when the borefield is inundated by Lake Cowal; well-heads raised above the full storage level of Lake Cowal by construction of stand pipes; steel stand pipes to minimise potential damage to the bore in the unlikely event of an accidental collision; prominent signage at the well-heads to minimise the potential for accidental collision and damage; an anchored pipeline laid on the ground surface (ie above ground level) in a V-drain for potential spill containment; an underground powerline to power the pumps; and leak detection mechanisms including automatic shut-down capability (ie a pressure-based shut-down system). 85 In relation to the potential surface water impacts of the proposed borefield, the Department's assessment report referred to the preventative measures that Barrick had proposed, and to conditions requiring the design and construction of the borefield which the Department had recommended in consultation with the Office of Water. Both the Department and the Office of Water were satisfied that the SEE contained "sufficient assessment of the possible surface water impacts likely to arise from the proposed modification and that, with the appropriate mitigation measures in place, environmental impacts would be minimal". In relation to potential groundwater impacts, the report noted that the borefield would be located within the Cowra Formation, as opposed to the Lachlan Formation. It referred to the prediction in the SEE that the aquifer had sufficient capacity to support the proposed extraction rates with limited drawdown, and the statement that there were no groundwater users that may be affected by any such drawdown. The Report continued: "Groundwater quality monitoring during operation of the mine has found little variation between pre-mining data and recent groundwater chemical testing associated with pit dewatering. There is no evidence to suggest that the natural groundwater chemistry would be significantly altered as a result of the proposed modification. The Department and OoW are satisfied that the use of saline groundwater is unlikely to result in any significant environmental impacts." 86 Fastening on the concluding words "unlikely to result in any significant environmental impacts", the applicant argues that the Minister's delegate addressed the wrong question, since the correct question under s 96(1A)(a) is whether the Minister is satisfied that the proposed modification was of "minimal environmental impact". Since s 96(1A)(a) is not the subject of any pleaded issue, in my opinion the alleged "correct" question does not arise in these proceedings. 87 In any case, the applicant's contention is unduly selective and overlooks that thereafter the report states: "Overall, the Department is satisfied that the proposed modifications would have minimal environmental impact"; and then states the principal reasons including that the proposed saline groundwater borefield would not impact on the water flows of Lake Cowal or groundwater availability for surrounding properties. Later, the report sets out s 79C(1) of the EPA Act, says that the Department has assessed the proposed notifications against those matters and is satisfied that (inter alia) "the potential environmental impacts are minimal and can be adequately managed". In the conclusion to the report, a similar statement is made.

88 A specific condition was added to the consent in relation to the saline borefield. It required that the pipelines for the borefield be constructed in accordance with the requirements of the Office of Water, and be laid so as not to impede the passage of fish and other animals or to interfere with flood behaviour or the passage of boats and vehicles. In addition, the water supply was to be installed with an automatic shut down device "so water supply shall not be restarted until the rupture is located and repaired" (cl 4.4A). 89 In my view, the applicant has not established that the cumulative impacts from the saline borefield were not properly considered by the Minister's delegate. Consequently, I do not accept this ground. Life of the Mine 90 As was the case for Modification 7, the Modification Application 8 did not seek any change to the life of the mine and Modification 8 did not approve any change to the life of the mine. The Department's assessment report noted that there was no change to the life of the mine as a factor relevant to determining that the consent as modified would be essentially the same development as that for which the consent was granted. The applicant's contention that the Minister failed to consider the life of the mine is without foundation. The Public Interest 91 Section 79C(1)(e) mandated consideration of the public interest and was set out in the Department's assessment report which thereafter expressly addressed the public interest. The report noted that the proposed modifications would enable Barrick to avoid either reducing the size of the mine's workforce or absorbing the additional costs of double-handling waste rock, which the Department considered to be positive outcomes for the local community and the mine. It considered the modification to be an appropriate use of the State's mineral resources, which could be carried out in a manner which was consistent with the objectives of the EPA Act, including the principle of ecologically sustainable development. I reject the applicant's contention that the public interest was not considered. Cumulative Impacts 92 The Modification 8 application set out the original form of approval, the modifications approved to date and the proposed modifications. The decision-maker in respect of Modification 8 was the same decision-maker in relation to Modification 7. He plainly considered the cumulative impact arising from Modifications 7 and 8. For the reasons given earlier, I do not accept that he had to consider the effect of the E42 Modification 6 request. I reject this ground.

Ulterior or Collateral Motive and Uncertainty 93 My earlier analyses and conclusions in relation to these two matters in the context of Modification 7 also apply to Modification 8: see [44] - [48] above. No vitiating error is established in those respects.

Conclusion on Modification 8 94 The applicant has established one vitiating error, relating to the proposed new INCO method of cyanide destruction.

RELIEF 95 As the respondents submit, the relief should reflect the fact that since Modifications 7 and 8 were granted, the Minister has considered and approved the E42 Modification 6 Modified Request under s 75W of the EPA Act. That request appears to have separately included each modification sought under s 96(1A) in Modifications 7 and 8. Thus, relief should be restricted to setting aside the Modification 8 decision and injunctive relief is inappropriate. Even if injunctive relief were appropriate, it would be restricted to restraining activity undertaken in reliance on Modification 8. That is the extent of the injunctive relief sought in any event. ORDERS 96 The orders of the Court are as follows:

1. Declaration that Modification 8 to development consent 14/98 granted by the first respondent to the second respondent on 28 August 2009 pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 is invalid. 2. Otherwise the amended summons is dismissed. 3. The respondents are to pay the applicant's costs including the reasonable out of pocket expenses of the applicant's agent. 4. The exhibits may be returned.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.