Williams v NSW Minister for Planning

Williams v NSW Minister for Planning - [2010] NSWLEC 204 - NSWLEC 2010 case summary — Zoe

[29]

(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.

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(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.

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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.

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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.

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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.

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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.

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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.

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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.

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