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Supreme Court of New South Wales - Court of Appeal |
Last Updated: 19 March 2001
NEW SOUTH WALES COURT OF APPEAL
CITATION: Winn v Director General of National Parks and Wildlife and Ors [2001] NSWCA 17 revised - 19/03/2001
FILE NUMBER(S):
40026/97
HEARING DATE(S): 3 - 5 July 2000
JUDGMENT DATE: 20/02/2001
PARTIES:
Paul Winn (Appellant)
Director General of National Parks and Wildlife (First Respondent)
RZM Pty Ltd (Second Respondent)
Rutile and Zircon Mines (Newcastle) Limited (Third Respondent)
Director General of Mineral Resources (Fourth Respondent)
Minister for Mineral Resources (Fifth Respondent)
Director General of Land and Water Conservation (Sixth Respondent)
JUDGMENT OF: Spigelman CJ Powell JA Stein JA
LOWER COURT JURISDICTION: Land & Environment Court
LOWER COURT FILE NUMBER(S): LEC 40209/95
LOWER COURT JUDICIAL OFFICER: Talbot J
COUNSEL:
T F Robertson/P Singleton (Appellant)
Submitting (First Respondent)
B Walker SC/T S Hale SC/Ms P Sibtain (Second/Third Respondents)
Dr M Evans (Fourth/Fifth Respondents)
Submitting (Sixth Respondent)
SOLICITORS:
Woolf Associates (Appellant)
Director General of National Parks and Wildlife (First Respondent)
Minter Ellison (Second/Third Respondents)
NSW Department of Mineral Resources (Fourth/Fifth Respondents)
Department of Land and Water Conservation (Sixth Respondent)
CATCHWORDS:
ENVIRONMENTAL LAW - tension between mining planning and environmental legislation - immunity from environmental legislation - Mining Act 1973, s 116 - Mining Act 1992, ss 65, 74, cls 4, 8 of Schedule 6
ENVIRONMENTAL LAW - Development Consent - Interpretation of Planning Conditions - Finality
ENVIRONMENTAL LAW - Development Consent Conditions - Remedy for Breach - no present and continuing breach - Environmental Offences and Penalties Act 1989, s 25 - Environmental Planning and Assessment Act 1979, s 124 - D
LEGISLATION CITED:
Environmental Offences and Penalties Act (NSW) 1989 ss 21, 25
Environmental Planning and Assessment Act (NSW) 1979 ss 91, 123
Hunter District Water Sewerage and Drainage Act (NSW) 1938
Interpretation Act (NSW) 1987 ss 5, 30, 33
Land and Environment Court Act (NSW) 1979 s 20
Local Government Act (NSW) 1919 Pt XIIA Div 7
Mining Act (NSW) 1906
Mining Act (NSW) 1973 ss 116
Mining Act (NSW) 1992 ss 5, 65, 74, Schedule 6 clause 4(2), 8
Protection of Environment Operations Act (NSW) 1999 s253
Hunter Water Board (Special Areas) Regulation 1989
DECISION:
1. Appeal allowed with costs. 2. Set aside the order of Talbot J dismissing the application. 3. Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s 124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
LEC 40209/95
SPIGELMAN CJ
POWELL JA
STEIN JA
Tuesday, 20 February 2001
Facts
The Second and Third Respondents ("RZM") conducted mineral sands mining on the Tomago sandbeds. The mining was undertaken pursuant to several relevant mining leases. ML594, granted on 3 May 1978, covered the main area mined. A smaller area was covered by ML744, granted on 6 June 1979. Areas were excised from ML594 by ML1170, granted on 14 July 1986, ML1222, granted on 10 April 1990 and ML1226, granted on 6 June 1990 ("the excision leases"). Re-mining and deep mining in the areas covered by the excision leases took place. The mining operations significantly elevated the iron and arsenic levels in the aquifer formed in the sandbeds, thus polluting the potable water supply of the Hunter area.
Two development consents were obtained. The first, relating to ML594, was granted on 7 June 1978 ("the 1978 consent"). The second, relating to ML744, was granted on 28 March 1979 ("the 1979 consent").
In proceedings before Talbot J in the Land and Environment Court the Appellant alleged that RZM's mining was being conducted illegally, or alternatively that it was being carried out in breach of the conditions in the development consents attached to the mining leases. A variety of breaches of other laws were alleged. The Appellant sought a variety of declarations and orders. Talbot J dismissed the application.
On the appeal the Appellant relied on alleged breaches of Condition 1 ("the aquifer condition") - "conduct operations" so as not to cause any detrimental effect to the aquifer - and Conditions 20 and 30 ("the water pollution condition") - "no increase in the saline, iron or other deleterious content of the water". The Appellant and sought relief under s25 of the Environmental Offences and Penalties Act 1989 ("the EOP Act") or s124 of the Environmental Planning and Assessment Act 1979 ("the EPA Act").
The first issue that arose was the ambit of the consent. Was re-mining and deep mining performed under the leases authorised under the consent and its accompanying conditions? Condition 64 provided that area could be mined "once only, unless with the consent ... of the Minister ... and the Board ...". The appeal also focused on the interaction between the Mining Act 1973 ("the 1973 Act") and the Mining Act 1992 ("the 1992 Act") and whether the protection afforded in s116 of the 1973 Act and s74 of the 1992 Act applied to the mining leases in question. In addition, the appeal concerned the interaction of the Mining Acts and planning legislation. Also at issue was whether there had been a breach of any condition and if so what relief was appropriate.
Held
The 1978 consent
per Spigelman CJ and Stein JA, Powell JA agreeing
1 The 1978 consent did not incorporate any extrinsic material either expressly or by necessary implication. Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 referred to.
Re-mining and deep mining were authorised
per Spigelman CJ, Powell JA agreeing
2 The issue is one of statutory construction. Not all conditions, delegations or deferring aspects of a development consent deprive the consent of the character of a "consent to an application". Mison v Randwick Municipal Council (1991) 23 NSWLR 734 discussed, Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 and Scott v Wollongong City Council (1992) 75 LGRA 112 approved.
per Spigelman CJ
3 IDO 23 made express provision for the Planning and Environment Commission to require conditions to be imposed with respect to development for a mineral sand mine.
4 When assessing the validity of the exercise of statutory power concerned with the "grant" of an "application", the nature of the development the subject of the application is of great significance. The application to mine over the area was of a character for which the environmental implications could not be determined in advance. The conditions of the consent in this case reflect the "trial" or "experimental" nature of the mining. Comprehensive provision for control and further regulation of virtually every aspect of the mining operation did not deprive the consent of the character of a "grant" for the "application".
5 The re-mining and deep mining are a form of "mining" for which approval had been given subject to the further approval in Condition 64.
per Powell JA
6 The consents were for any type of operation which might be carried on for, or in connection with, the obtaining of mineral sands. Neither Conditions 17 nor 64 fundamentally alter the nature of the development; they vary the restrictions on the manner of conducting of mining operations.
per Stein JA
7 Under Condition 64 the leaseholder is only permitted to mine the land once. Mining the land more than once would fundamentally alter the ambit provided by the plain words of the approval. Mison supra applied. Scott v Wollongong City Council (1992) 75 LGRA 112 and Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 referred to.
8 The second half of Condition 64 is not an essential part of the development consent and can be severed without resulting failure of the remainder of the consent. Kent City Council v Kingsway Investments (Kent) Ltd: Same v Kenworthy [1971] AC 72 and Parramatta City Council v Kriticos & anor [1971] 1 NSWLR 140 applied.
9 The analysis of Condition 64 applies to Condition 17.
Applicability of the Mining Acts
(a) ML594
per Stein JA, Spigelman CJ and Powell JA agreeing
10 ML594 was granted before the 1978 consent was approved. Section 116 of the 1973 Act did not apply to ML594. Clause 8 of the transitional provisions of the 1992 Act did not operate to apply ss65 and 74 of the 1992 Act to ML594.
(b) Excision Leases
per Spigelman CJ, Powell JA agreeing
11 The 1978 consent applied to the excision leases. By reason of the formulation "shall conduct operations" both the aquifer condition and the water pollution condition refer to mining methods. They are "prescribed conditions" under s116(9) of the 1973 Act. Accordingly, s116(3A) of that Act operated to provide protection.
12 Notwithstanding the repeal of the 1973 Act, the Respondents could rely on s30(1)(a) of the Interpretation Act 1987.
per Stein JA
13 Section 116 of the 1973 Act did not apply to the excision leases because no ministerial requirement under s116(1) had been made.
14 Clause 8 of the transitional provisions to the 1992 Act provides a special regime for the application of ss65 and 74 to leases granted in accordance with s116 of the 1973 Act. As s116 did not apply to the excision leases, neither cl 4(2) nor cl 8 applies the excision leases. Thus ss65 and 74 of the 1992 Act do not apply to the excision leases.
Breach of Conditions
per Spigelman CJ and Stein JA, Powell JA agreeing
15 RZM breached the aquifer condition and the pollution condition.
per Spigelman CJ, Powell JA agreeing
16 The breach was confined to the operation in ML594. The submissions in the Court did not focus on the consequences, if separately identifiable, of breach arising from operations in this area.
Remedy
per Stein JA, Spigelman CJ and Powell JA agreeing
17 The power of the court in s25 of the EOP Act should not be interpreted in a narrow or technical sense. Brown v EPA (1992) 78 LGERA 119 approved.
per Spigelman CJ, Powell JA agreeing
18 The critical words in both the aquifer and the pollution conditions are "conduct operations". There are now no operations and accordingly there is no present and continuing breach. Rehabilitation of the mined area does not fall under "conduct operations" as found in the aquifer or the pollution conditions. Even if it did, there is nothing to suggest that the rehabilitation is being carried so as to cause the effect stated in the conditions. Thus there is no breach within the meaning of s25 of the EOP Act.
19 "Remedy" in s124 of the EPA Act is sufficient to encompass rehabilitation orders. No findings of fact were made by the trial judge as to whether the relevant conditions had been breached with respect to ML594. The matter should be remitted to determine whether there was a breach and, if so, what remedy under s124 of the EPA Act is appropriate.
per Stein JA
20 The breaches of the conditions, being the contamination of the aquifer, are the continuing consequences of the mining operation. Rehabilitation is part of the operations still being conducted and the breaches of the conditions are continuing until remedied. The breaches may be restrained under s25 of the EOP Act and s124 of the EPA Act.
Orders
1 Appeal allowed with costs.
2 Set aside the order of Talbot J dismissing the application.
3 Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
LEC 40209/95
SPIGELMAN CJ
POWELL JA
STEIN JA
Tuesday, 20 February 2001
1 SPIGELMAN CJ: In this matter I have had the benefit of reading the judgment of Stein JA in draft. His Honour sets out the relevant statutory provisions, documents, factual background and issues in these proceedings. Subject to the following additional observations, I agree with his Honour's reasons.
The 1978 Consent
2 His Honour refers to authorities which establish that the documents accompanying an application for consent are not taken as incorporated in the consent, unless incorporated expressly or by necessary implication. His Honour refers to Auburn Municipal Council v Szabo (1971) 67 LGRA 427 and Sydney Serviced Apartments Pty Limited v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, 408.
3 In addition to the authorities referred to by Stein JA, see Parramatta City Council v Shell Co of Australia Limited [1972] 2 NSWLR 632 at 637 per Hope JA, with whom Jacobs and Manning JJA agreed at 637; Woolworths Limited v Campbells Cash and Carry Pty Limited (New South Wales Court of Appeal, 19 September 1996, unreported), at p4 per Sheller JA, with whom Beazley JA agreed; Stradbroke Island Association v Sandunes Pty Limited and Redland Shire Council (1998) 101 LGERA 161 at 169; Sericott Pty Limited v Snowy River Shire Council (2000) 108 LGERA 66 at 74 per Beazley JA, with whom Handley and Powell JJA (in relevant respects) agreed; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [37]; Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 324 per Else-Mitchell and Stephen JJ; Miller-Meed v Minister of Housing and Local Government [1963] 2 QB 1996 at 215 per Lord Denning and 223 per Upton LJ; Slough Estates Limited v Slough Borough Council (No 2) [1971] AC 958 at 962 per Lord Reid).
4 A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.
5 I agree with Stein JA that in the present case the documents upon which the Appellant sought to rely were not incorporated in the consent, either expressly or by necessary implication. The construction of the conditions which the Appellant contends were breached cannot be determined in accordance with what is said to arise from the documents accompanying of the application.
Condition 64
6 The first issue to be determined on this appeal turns on the proper construction of Condition 64 in the development consent which is in the following terms:
"64 The Registered Holder shall mine the subject area once only, unless with the consent in writing of the Minister for Mines and the Board first had and obtained and subject to such conditions as they may stipulate."
7 The "Board" there referred to was the Hunter District Water Board, subsequently known as the Hunter Water Board. That Board and the Minister for Mines were given a range of functions to perform under the conditions which included Condition 64. Condition 64 cannot, in my opinion, be construed as a condition which prohibits re-mining simpliciter. It prohibits mining more than once without the concurrence of the Minister and the Board. On its proper construction it permits mining more than once if the relevant approvals are obtained.
8 Stein JA concludes, on the basis of the words "shall mine the subject area once only" that neither the re-mining nor the deep mining - the latter also generally constituting re-mining - was permitted by the consent. I agree with his Honour that the words "once only" would prohibit all forms of re-mining, including the deep mining. However, those words are qualified so that the restriction does not operate in circumstances in which a consent in writing has been obtained from the Minister for Mines and the Hunter Water Board.
9 Stein JA concludes that this part of Condition 64 can be set aside. First, his Honour concludes that it constitutes an impermissible delegation by the council of its statutory role as a consent authority, because it fundamentally alters the ambit of the approval. His Honour refers to Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 741. Secondly, his Honour concludes that that part of Condition 64 may be severed on the basis that it is not fundamental to the consent. His Honour refers to Kent City Council v Kingsway Investments (Kent) Ltd [1971] AC 72.
10 In Mison, this Court held invalid a consent to a development application which included the following condition:
"Overall height of the dwelling house being reduced to the satisfaction of council's Chief Town Planner."
11 The relevant power was found in s91 of the Environmental Planning and Assessment Act 1979 which provided:
"91(1) A development application shall be determined by -
(a) the granting of consent to that application, either unconditionally or subject to conditions."
12 The common law has not developed a general principle that the exercise of a statutory power must be "certain". (See King Gee Clothing Co Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194-195; Cann's Pty Ltd v Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration (1994) 55 FCR 439 at 447; Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 at 42). The issue is one of construction of the particular statute under consideration and the application of the statute to the circumstances of the particular case.
13 A purported exercise of the power in s91 of the Environmental Planning and Assessment Act will not be valid unless the decision constitutes a "consent". Furthermore, a purported exercise of this power will not be valid unless it constitutes a "consent to that application".
14 The ancillary power to impose conditions cannot be exercised in such a manner as to have the consequence that the exercise of the power fails to answer the description of a "consent" or a "consent to that application". (See Television Corporation Ltd v Commonwealth [1963] HCA 30; (1963) 109 CLR 59 at 41, 83; Genkem Pty Ltd v Environment Protection Authority supra at 44B-F, 49B-G; Evans v Western Australia (1997) 77 FCR 193 at 211-214).
15 This process of statutory construction has sometimes been expressed in the terms of a "principle of finality", peculiarly applicable to the construction of planning statutes. (See e.g. City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; 49 LGRA 65 at 68; Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13 at 15-16; Scott v Wollongong City Council (1992) 75 LGRA 112 at 115-118; McBain v Clifton Shire Council [1996] 2 QdR 493 at 496; Mt Marrow Blue Metal Quarry Pty Ltd v Moreton Shire Council [1996] 1 QdR 437 at 452; "Administration of Finality Principle" (1996) LGPLG 136). Such terminology must be approached with care. The issue always turns on the construction of the particular statute.
16 In Mison, this Court held that the condition there under consideration was such that:
(i) The consent was not a "consent" by reason of the significance of the issue left for further determination (at 738-739 per Priestley JA and at 739G-740B per Clarke JA); and
(ii) The consent was not a "consent to the application" because it left open the possibility that the further determination would significantly alter the development for which the application was made (at 737A-D per Priestley JA and 740E-F per Clarke JA).
17 However, as Mason P, with whom Sheller JA agreed, said in Transport Action Group against Motorways Inc v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 at [117]:
"Mison does not stand for the proposition that any retention of flexibility or any delegation to a third party of the function of supervising a later stage of the development is prohibited."
18 Indeed, as Samuels JA said in Scott v Wollongong City Council supra at 118:
"... it is common to find that development consent is subject to conditions which provide for some aspects of the matter stipulated to be left for later and final decision by the consent authority or by some delegate or offences to whose satisfaction, for example, specified work is to be performed. Such provisions are inevitable since it cannot be supposed that a development application can contain ultimate detail or that a consent can finally resolve all aspects of a proposal with absolute precision."
19 As Mason P pointed out in Transport Action Group v Road and Traffic Authority supra at [117] Mison itself "recognised that questions of degree are involved". The determination of whether a condition deprives a purported consent of the character of a "consent" or of a "consent to that application" will often be difficult.
20 Condition 64 performed dual public functions. It also appears as Condition 198 in the first mining lease. The list of conditions contained in the document "Conditions of Authority" were negotiated between the Hunter Water Board and RZM. The list is incorporated as conditions of both the development consent and of the mining lease.
21 By nature of the development proposed, two distinct but overlapping regimes of public regulation were necessarily involved. By reason of the location of the proposed development, a third public authority, with regulatory powers under the Hunter District Water Sewerage and Drainage Act 1938, was also necessary involved. The objectives of finality and certainty were best served by ensuring that the three overlapping regulatory regimes coincided.
22 Of particular significance is the fact that the existence of the three regimes was known to the drafter of the relevant instrument.
23 The consent was granted under Interim Development Order No. 23 - Shire of Port Stephens, 1974. In the relevant zoning 5(a) Special Uses "A" Yellow - which encompassed the Tomago Sandbeds - development for the express purpose of "mineral sand mines" was a Column IV use, i.e. development which could be carried out only with the consent of the Council.
24 At the time, interim development was regulated by Pt XIIA Div 7 of the Local Government Act 1919. The Council's power was found in s342V(1A) which was in the following terms:
"Subject to the provisions of any Interim Development Order, the council may, where an Interim Development Application is made, grant the application unconditionally or subject to such conditions as it may think proper to impose ..."
25 Save in one respect, this section is indistinguishable from the power considered in Mison. I see no material distinction, for present purposes, between the formulation "grant the application" and "granting of consent to that application".
26 The important qualification, for present purposes, is found in the introductory words of s342V(1A): "Subject to the provisions of any Interim Development Order". IDO 23 contains a material provision with respect to the imposition of conditions by the State Planning Authority, (subsequently the Planning and Environment Commission - see New South Wales Planning and Environment Commission Act 1974 s18(3)).
27 Clause 11(2) of IDO 23 provided:
"11(2) The Council, before determining any application made to it under this Order to carry out development for the purpose of a mineral sand mine -
(a) shall consult with the Authority;
(b) shall neither grant its consent to such application, refuse consent thereto nor attach conditions to its consent thereto except with the concurrence of the Authority; and
(c) shall, in the event of such concurrence being given, attached to its consent such conditions as the Authority requires to be imposed."
28 In the present case the consent of the Port Stephens Shire Council dated 7 June 1978, contained in Schedule 1, one condition in the following terms:
"1. Compliance with Planning and Environment Commission's conditions, a copy of which is enclosed."
It was those conditions, being the Conditions of Authority, which included Condition 64.
29 Accordingly, the relevant power for present purposes is the power of the Planning and Environment Commission, pursuant to cl 11(2) of the IDO 23, to require the Council to impose conditions. That power is, by that clause, exercisable in relation only to development for a mineral sand mine.
30 The provision in Condition 64 for consent of the Minister for Mines and of the Board for mining "more than once" is only one example of numerous such provisions which permeate the scheme. Indeed, it is the most distinctive characteristic of the entire set of conditions that it contain detailed regulation of each step in the mining process. This is consistent with what is expressly referred to in Condition 17(c) as "the experimental nature of the mining operation and the possible risks involved thereby". Similarly Condition 1 provides that mining should be "considered as a trial", by reason of the fact that detrimental effect to the aquifer or the Board's assets may take time to be "recognised and assessed".
31 In this context detailed provision is made for control of every step in the process:
· By Condition 4 "all the ... operations" in the sandbed are to be subject to the approval of the Board and to be carried out under the supervision of the Minister and of the Board.
· By Condition 6 the mining company is to comply with all instructions given by the Board and, in the event of failure will "cease all mining operations in the catchment area within 24 hours of receipt of written instruction to that effect".
· By Condition 7 the mining company is to comply with any instructions given by the Board "for the purposes of preventing the pollution of the Tomago Sandbeds and/or the water supply".
· By Condition 8 the Board reserves the right to withdraw approval "should the Board consider it necessary in order to safeguard its interests".
· By Condition 14 mining operations are to be confined to dredging "unless otherwise approved by the Minister and the Board".
· By Condition 15 no mining plant can be brought onto the area "without the approval of the Minister and the Board" and only one mining plant can be used "unless otherwise approved in writing by the Minister and the Board".
· By Condition 16 the location of stockpiles of mine concentrate must be agreed to by the Board.
· By Condition 17(a) mining is restricted to such depths as may be approved by the Minister and the Board.
· By Condition 17(b) mining is not permitted at levels below those stipulated by the Board.
· By Condition 17(d) the mining company is each year to submit to the Board its proposals defining the extent of mining and every six months resubmit plans for approval by the Board of the extent of mining proposed during the six monthly interval.
· By Condition 18(a) the mining company is to ensure that water added or returned to the pond shall be of no less quality than that of local groundwater as determined to the satisfaction of the Minister and the Board.
· By Condition 18(b) the Minister and the Board may direct that dredging operations be conducted in a particular way to maintain water level.
· By Condition 21 all sanitary arrangements for employees shall be as approved and directed by the Board.
· By Condition 24 special measures may be imposed by the Minister and the Board with respect to the possible intrusion of salt water.
· By Condition 26(a) the programme for revegetation requires approval by the Minister and the Board.
· By Condition 26(b) a management programme to control soil erosion and to ensure rehabilitation is to be approved by the Minister and the Board.
· By Condition 26(c) the Minister and the Board may vary the identified dimensions of islands of vegetation to be left and the agreement of the Minister and the Board is required to the planting of new islands of vegetation.
· By Condition 25 fertilisers are to be of a kind approved by the Minister and the Board.
· By Condition 28(a) the obligation to remove surface material is subject to a contrary direction by the Minister and the Board.
· By Condition 28(b) the Board is empowered to agree to an alternative landform to that existing before mining.
· By Condition 28(c) the mining company is obliged to restore work areas in accordance with instructions given by the Minister and the Board.
· By Condition 28(d) in the event of fire the mining company will be subject to the instructions of the Minister and the Board.
· By Condition 29(a) before any mining is conducted a site investigation may be required by the Minister and the Board and a clearance in writing may be required from the Minister and the Board for mining to commence.
· By Condition 29(b) bore holes to provide soil and water date may be required by the Minister and the Board.
· By Condition 29(c) taking and testing of samples shall be in accordance with instructions by the Minister and the Board.
· By Condition 32 the company will cease all mining operations within 24 hours if the Minister or the Board decide that "as a result of the mining there is a deterioration in the quality of water drawn from the aquifer or there is a danger that this will occur".
· By Condition 36 damage to lands after rehabilitation will be repaired to the satisfaction of the Minister and the Board.
· By Condition 39 the mining company will fill in any dredge, pond or other excavation if so directed by the Minister and the Board, in accordance with their instructions.
· By Condition 40 a secure fence will be provided around each dredge, pond or other excavation if so directed by the Minister and the Board and in accordance with their instructions.
· By Condition 41, fertiliser is to be spread over the restored area in such type and such quantity as may be directed by the Minister and the Board.
· By Condition 42, a secure stock proof fence is to be erected and maintained if so directed by the Minister and the Board and to their satisfaction.
· By Condition 43 the mining company is required to "observe any instructions which may be given by the Minister and the Board with a view of minimising or preventing public inconvenience or damage to public or private property".
· By Condition 44, in the event of damage to any improvements, such will be restored to the satisfaction of the owner or of the Minister and of the Board.
· By Condition 45(b) the mining company is not permitted to keep a dog on the subject area without the approval of the Minister and the Board.
· By Condition 47 the mining company will not interfere with any fences without the consent of the Minister and the Board.
· By Condition 48 the mining company is obliged to observe and perform "any instructions given ... by the Minister and the Board with a view of minimising or preventing any flood or storm damage".
· By Condition 50(a) the mining company will erect a separation plant "to the satisfaction of the Minister and the Board".
· By Condition 50(b) the mining company is to return tailings to the excavations or such other land "as may be directed by the Minister and the Board".
· By Condition 51(a) in the event of mining by means other than dredging, the mining is to occur in sections of such dimensions as the Minister and the Board may stipulate from time to time.
· By Condition 52, during restoration, the mining company is obliged to observe and perform any instructions given by the Minister and the Board with a view to minimising or preventing damage by domestic animals.
· By Condition 53(a) the mining company is obliged to establish a nursery for the propagation of a number and variety of plants, shrubs and trees "which in the opinion of the Minister and the Board is adequate for the purposes of satisfactorily rehabilitating the subject area".
· By Condition 55(a) the mining company is not to excavate within a certain distance of the boundary of a road without the consent of the Minister.
32 The detailed and comprehensive provision for control of virtually every aspect of the mining and rehabilitation of the land permeates the scheme. A number of these conditions deal with minor matters which could not impinge on the issue of validity. However, a number are potentially of the same order of significance as Condition 64 e.g. Conditions 4, 6, 7, 14, 15, 36 and 50. The lack of finality, if there be such, in Condition 64 is reflected in such a large number of conditions, all of which manifest the "experimental" or "trial" nature of the mining at the time of the respective approvals, that the process of obtaining further detailed approval represents an essential aspect of the whole scheme. If the requirement for approval found in Condition 64 is invalid then, in my opinion, many of the other conditions are indistinguishable and the whole scheme of the conditions would also be invalid. Invalidity in this respect would cause the whole of the conditions to fail. This would extend to the conditions relied upon by the Appellant i.e. Conditions 1, 20 and 30. They could not be permitted to stand alone. No doubt such a conclusion may have (or at least may have had) other implications, but no case to that effect has been pursued. In any event, in my opinion, conditions of this character are valid in the present context.
33 In the present case a regulatory authority, with State-wide environmental responsibilities, adopted and applied, for purposes of planning approval, a detailed regime of regulation worked out by two other statutory authorities, one with a clear responsibility and interest to maintain water quality and the other with overlapping statutory responsibilities. In the circumstances, in my opinion, the regime which was adopted by the Planning and Environment Commission for planning purposes was a valid exercise of the powers conferred on it, specifically the power under IDO 23 to require the Council to impose conditions as a condition of its own consent for development for purposes of a mineral sand mine.
34 When the Court is called upon to assess the validity, in terms of finality and certainty, of the exercise of statutory power, the scope, nature and subject matter of the power is of great significance. So also, in a context concerned with the "grant" of an "application", is the nature of the development the subject of the application.
35 The starting point for the determination of such issues is the purported exercise of power. As Dixon J said in Swan Hill Corporation v Bradbury [1937] HCA 15; (1937) 56 CLR 746 at 756:
"In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often the most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce."
36 The proposal to mine over an area is, of its nature, a development the full implications of which cannot be determined in advance. It is a form of development which by its nature will frequently require a development approval to contain conditions which permits adaptation of the development to the environmental implications as they unfold. This is what occurred in the detailed provisions of the Conditions of Authority by which the Board and the Minister reserved a right to control the operations in extraordinary detail, down to the grant of permission for a dog to be present on the site.
37 The statutory power of the Planning and Environment Commission, limited to concurrence for a mineral sand mine, together with the application being for such a mine, over the entire area, are both of a character that, in the circumstances of this case, provision for further approvals to the development was a valid exercise of the power. The nature of the development is frequently determinative in this regard. (See for example Flynn v Director of Public Prosecutors [1998] 1 VR 322 esp at 343).
38 The application for which consent was sought in the present case did not involve a single structure in a single location. It involved mining within an area. Conditions of the character imposed by the Commission did not deprive the Council's grant of the character of a "grant" for "the application".
39 In my opinion Conditions 17 and 64 are valid. In my opinion, re-mining with the concurrence of the Minister and the Board is permissible and the deep mining, whether re-mining or not, is permissible pursuant to the provisions in Condition 17, permitting the Minister and the Board to stipulate the depth of mining activity. In my opinion, the Appellant's case that neither re-mining nor deep mining was permitted should be rejected. It was a form of "mining" for which approval had been given, subject to the further approval of the Minister and the Board.
40 The Appellant did not suggest that the requisite further approvals on the part of the Minister and the Board had not been obtained. Similarly, there was no suggestion that any mining occurred to a depth beyond that permitted by the Minister and the Board.
Breach of Conditions
41 The trial judge rejected the Appellant's case that the Second and Third Respondents were in breach of conditions in the Conditions of Authority which were, by requirement of the Planning and Environment Commission, imposed as conditions of the development consent. The relevant conditions are:
"1. The registered holder shall abide by the provisions of the Catchment Area By-Laws applying to the Catchment Area of the Tomago Sandbeds Water supply works and shall conduct operations in such a manner as not to cause any detrimental effect to the aquifer or the Board's assets. As there may be a time interval before some of these effects are recognised and assessed, the mining of the subject area shall be considered as a trial and for this reason the rate of mining shall be limited to the maximum rate of progress hereinafter stipulated.
20. The registered holder shall conduct tests of the dredge pond water as required by the Minister and the Board and shall so conduct operations that there is no increase above that existing naturally in the local ground water prior to mining operations in the saline, iron or other deleterious content of the water caused by the mining process or by the addition of any oils or greases or other substances which may be used either directly or indirectly in the mining process. Suspended solids in the pond water shall not exceed the limit set from time to time by the Minister and the Board. Furthermore no deleterious material including organic matter will be permitted to float on the surface of the pond.
30. The registered holder shall conduct tests of the groundwater existing after mining, in such positions as may be determined by the Board, and will so conduct operations that the groundwater in and around the ground mined is not caused to become of a lesser quality after mining than the groundwater in the area before mining."
42 The Applicant referred to Condition 1 as the "aquifer condition." Conditions 20 and 30 were jointly referred to as the "water pollution condition".
43 Words such as "detrimental effect", "no increase" and "lesser quality" are general words which cannot be construed without reference to the context in which they appear. The contemporary approach to construction is not that propounded by Portia in the The Merchant of Venice with respect to a contractual arrangement for the delivery of "a pound of flesh". His Honour was of the view, with which I agree, that these conditions cannot be construed in such manner as would, as a practical matter, have the consequence that no mining of any character would be permitted. The general words in the respective conditions may need to be read down.
44 In this Court the Second and Third Respondents contended that the "aquifer" condition should be construed as follows:
"... to prohibit a detrimental effect to the operation of the aquifer as a catchment area or as a water supply source."
45 With respect to the water pollution condition two alternative, and in part overlapping, propositions were advanced to the effect that the two conditions should be construed:
(a) As "prohibiting the introduction of contaminating material from outside the sand beds" and to not "apply to naturally occurring materials already in the sand bed and aquifer", or
(b) As not to "prohibit the necessary and inevitable consequences of a well managed dredging operation, where the nature of the dredging operation is judged according to the standards current at 6 June 1979".
46 The effects which are said to constitute breaches of each of the aquifer and water pollution conditions are, in large measure, the same. Stein JA has referred to the evidence which indicates a substantial increase in the iron and arsenic concentrations of the water. Although there are differences amongst the experts as to the speed with which these increases will dissipate, there is no doubt that they are appropriately characterised as significant and that the increased concentrations will be maintained for substantial periods of time.
47 The context suggests that there is considerable force in the Respondent's contention that the "detrimental effect" in Condition 1 should be understood as a detrimental effect "to the operation of the aquifer as a catchment area or as a water supply source". However, the condition does not, unlike many other conditions, turn in any manner on what is from time to time found to be acceptable to the Hunter Water Board. Condition 1 is objectively stated, even if as construed in the manner for which the Second and Third Respondents contend.
48 Talbot J found that there was no breach of this condition, in part because there was no evidence before his Honour of a direct impact "upon the actual supply of water to any of the points presently used by the Board". However, as Stein JA indicates in his judgment this is in part because the Board has averted the impact by moving the locations of its water supply points. Such conduct does not, in my opinion, avoid a breach of the condition construed in the way for which the Respondents contend. In my opinion, the observed increased concentrations of iron and arsenic could detrimentally affect "the operation of the aquifer as a catchment area or as a water supply source", if only by reason of constraining the choices available to the Board and requiring it to avoid certain areas.
49 With respect to the water supply condition, the Second and Third Respondents first proposal for reading down Conditions 20 and 30 is that it should not apply to materials occurring naturally in the sand bed and aquifer. On this construction the process of oxidisation which inevitably leads to increased levels of iron and arsenic would not constitute a relevant breach. In my opinion, neither Condition 20 nor Condition 30 permits a construction of this character. The critical words in each are "conduct operations". There is nothing to suggest that the "operations" there referred to are confined to materials and substances brought in from outside.
50 Condition 20 clearly distinguishes between two different mechanisms by which the prohibited effect described as an "increase ... in the saline, iron or other deleterious content of the water" may be brought about. The first is that the increase is "caused by the mining process". The second is that the increase is caused "by the addition of any oils or greases or other substances which may be used either directly or indirectly in the mining process". The latter clearly refers to materials brought in from outside the sand bed. There is no reason to read down the words "caused by the mining process" to coincide with materials brought in from outside. In my opinion, the reference to the "mining process" includes operations which disturb the sandbed and aquifer on site.
51 Condition 30 applies generally to the quality of the "ground water in and around the ground mined". Nothing in the text or context suggests a concern with quality limited to materials brought in from outside.
52 The second construction proposed by the Second and Third Respondents to read down the "water pollution condition" is that it should not extend to the "necessary and inevitable consequences of a well managed dredging operation". This construction introduces vague and general words which themselves require reading down. It is by no means clear to me what would be encompassed within the words "necessary and inevitable consequences" nor within the context of a mining operation, what is the defining characteristics of one that is "well managed".
53 On the evidence before the Court, the effects to which Conditions 20 and 30 refer depend to a significant degree on the depth of the mining operation, whether well managed or otherwise.
54 The increased concentrations that have occurred go well beyond anything that can be regarded as the "necessary and inevitable consequences" of mining simpliciter. The conditions cannot be read down so that the very effect which is prohibited becomes permissible because the kind of mining operation actually conducted is unable to comply with the condition. The effects have been determined by the kind and intensity of mining that has in fact occurred. They cannot be regarded as a consequence of any mining.
55 No doubt there is a point below which changes in the iron and arsenic content of the water would not constitute an "increase" within Condition 20 and beyond which water does not become "of lesser quality" within Condition 30. Whatever that particular point may be is merely of academic interest. The consequences that appear on the facts of the present case clearly lie beyond any such levels.
56 By reason of his Honour's construction of the condition, Talbot J did not need to make, and did not make, the findings of primary fact which are necessary to establish an actual breach of Conditions 1, 20 and 30. Although the evidence suggests a breach, I do not believe it is appropriate for this Court to make such a finding. This is particularly so because no attempt has been made to separate the observed effects with respect to ML594 from the effects of other leases. For the reasons I set out below, it is necessary to do so.
57 Subject to any other defences, this factual issue should be remitted. Accordingly, it is necessary to determine the defences advanced on the part of the Second and Third Respondents to the effect that the operations were not subject to these two conditions.
Mining Acts Defences
58 The leases may be conveniently dealt with in three groups:
(i) ML744
(ii) ML594
(iii) ML1170, 1222 and 1226 ("the excision leases").
59 In the case of ML744 all parties agreed that s65 and s74 of the Mining Act 1992 applied. On this basis the aquifer condition and the water pollution condition, on which the Appellant relies, are void. Operations within this area did not constitute a breach of either condition.
60 With respect to ML594, the Second and Third Respondents conceded in written submissions (pars [60] and [62]) that because the lease preceded the 1978 development consent, the two conditions were applicable to operations under that lease. On this basis, no protection was available under s116 of the 1973 Act. Nevertheless, in supplementary submissions (par [49]) the Second and Third Respondents invoked the protection of s74 of the 1992 Act on the basis that s116 did apply. The original concession was correct.
61 I agree with Stein JA that s116 of the Mining Act 1973 was not applicable to ML594. I also agree that cl 8 of the transitional provisions in Schedule 6 of the Mining Act 1992 did not operate to apply ss65 and 74 of that Act to ML594.
62 I also agree that cl 4(2) in the Sixth Schedule does not operate with respect to the specific regime created by cl 8 of that Schedule. (See in addition to the authorities referred to by Stein JA, the authorities collected in Switz Pty Ltd v Glowbind Pty Ltd [2000] NSWCA 37; (2000) 48 NSWLR 661 at [69]- [73]).
63 None of the subsections of s116 apply to ML594, because the lease was granted before the development consent.
64 With respect to the excision leases, the Second and Third Respondents relied on s65 and s74 of the 1992 Act in the manner outlined by Stein JA.
65 There are difficulties with the construction of "in accordance with" in cl 8. There are also difficulties with the application of s65 and s74. The construction of the phrase "appropriate development consent" raises a number of issues. The Fourth and Fifth Respondents submitted that the phrase referred to a consent which extended to "use of land for purpose of obtaining minerals". Stein JA would give s65 a different construction and a distinct "primary purpose". In my opinion, this issue does not need to be decided. Nor does the application of s74.
66 I prefer to leave these matters until a case arises in which it is necessary to decide them. I note that the specific conclusion Stein JA reaches in this regard turns, in part, on his Honour's conclusion, contrary to my own, that the 1978 consents did not authorise re-mining and deep mining.
67 The excision leases are in a different position from ML594 by reason of the fact that they were granted after the commencement of the Mining Act 1973. As Stein JA concludes, the excision leases are not entitled to the protection of s116(3) of the 1973 Act because this subsection required, at all times, a condition, "pursuant to a requirement under subsection (1)(a)" of s116. There was no such requirement.
68 Until the 1983 amendments subsection s116(4) of the Mining Act 1973 turned on the same precondition as s116(3), (i.e. these had to have been a requirement under s116(1)(a) that an applicant for the mining lease apply for consent). From 1983, however, that condition was deleted.
69 Subsection 116(3A) has never turned on a "requirement under subsection 116(1)(a)". Subsection 116(3A) provided:
"Where a mining lease is granted over any land to a person, any condition (being a prescribed condition) imposed by an authority, ... as a condition of, or in connection with, a consent to the use of the land for the purpose of obtaining minerals given to the person before the grant of the lease (otherwise than pursuant to a requirement under subsection (1)(a)) is void and the consent to that use of land shall be deemed to have been given free of the condition."
70 The purpose of the subsection was to cover the situation in which the protection of ss116(3) and (4) (in the latter case before the 1983 amendments) was not available because a person applied for development consent before a direction under s116 was made.
71 In the second reading speech, the Minister referred to s116 and said (New South Wales Legislative Assembly, Hansard, 2 November 1983 p2297):
"However, on some occasions applicants for mining leases lodge applications for consent before a direction under section 116 is made. By taking early action to obtain development consent applicants can, on occasions, reduce the time taken to obtain the grant of a lease and thereby commence operations at an early date.
As the Act presently stands such a person does not obtain the benefits of section 116(3) and (4) unless he makes a further application for consent pursuant to a direction made under section 116.
The application of these provisions to a mining project is important as they relate to the type of conditions that may be imposed and the time within which operations must be commenced. They also provide protection against the variation of consent conditions.
The Department of Environment and Planning has expressed concern at the need or such applicants to apply for consent for a second time and indeed this double requirement has met with some criticism from the industry.
The opportunity has been taken to amend the Act to provide that where a person is granted development consent otherwise than pursuant to a direction by the Minister pursuant to section 116(1), the provisions of section 116(3) and (4) shall apply under the grant of a mining lease to that person.
This provision has the result therefore of giving equal status to a development consent obtaining by the applicant independently of the procedures of the Mining Act (Schedule 7(5))."
72 The effect of subsection (3A) was reinforced by the inclusion in s116(1), after the word "granted", of the clause "to the applicant for the mining lease (being an applicant who has not already obtained that consent)". In circumstances where a consent was extant there was thus no obligation upon the Minister to serve the instrument in writing requiring an application for consent to be made.
73 Before Talbot J, the Appellant submitted that the 1983 amendments did not have a retrospective effect. However, in this Court the Appellant expressly stated that he would not pursue that submission.
74 The Appellant's submission in this Court was to the effect that s116(3A) only applied "where there was some mutuality between development consent and mining lease". He submitted that the "remedial purpose" identified in the Second Reading Speech was that it should apply only to a consent for a mining licence obtained "in anticipation of a requirement to do so with a view to securing the grant of a mining lease for the same operation". The Appellant went on to submit that the protection should not be afforded to the excision leases on the basis that it should not extend to such leases "granted in relation to a small part of the DA area a decade later for a different mining operation".
75 The fact that the excision leases relate to only part of ML594 does not appear to me to be a material distinction. Consent for the whole encompasses consent for the part. The gravamen of the submission with respect to "mutuality" and "different mining operation" would have force if the original consent did not authorise re-mining and deep mining. For the reasons I have outlined above, in my opinion, consent did extend to all forms of mining, including those characterised by the Appellant in this case as "re-mining" and "deep mining". Such mining activities required further approvals from the Board and the Minister but, subject to obtaining such approvals, there was no relevant difference between the consent and the leases.
76 On this analysis s116(3A) applies so that, with respect to the excision leases, any "prescribed condition" is void and the consent is "deemed to have been given free of the condition".
77 By s389 of the Mining Act 1992 the 1973 Act was repealed. However the rights and privileges which RZM had under the 1973 Act were protected by the Interpretation Act 1987, unless a contrary intention appeared in the Mining Act 1992.
78 The Second and Third Respondents relied, alternatively, on two paragraphs of s30(1) of the Interpretation Act as follows:
"30(1) The amendment or repeal of an Act or statutory rule does not:
(a) revive anything not in force or existing at the time at which the amendment or repeal takes effect, or
...
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act or statutory rule, ..."
79 It is sufficient for present purposes to refer only to s30(1)(a). A prescribed condition that was "void" by reason of the operation of s116(3A) of the 1973 Act would not be "revived" by reason of the repeal of that subsection.
80 However, in accordance with s5(2) of the Interpretation Act these provisions apply subject to any contrary intention in the subsequent Act. The issue is whether the 1992 Act contains any such contrary intention.
81 By cl 8 of Schedule 6, the Parliament has provided for a similar consequence to that which, in the circumstances of this case, would be attained by s30(1). It did so by providing that s65 of the 1992 Act applied to a mining lease "granted in accordance with section 116 of the Mining Act". Furthermore, s65 provided that a "special purpose condition" was void in the case of a mining lease with respect to which "an appropriate development consent is in force".
82 As set out in the judgment of Stein JA, the submissions in this Court were based on a fine analysis of the formulations "in accordance with section 116 of the Mining Act" and of "appropriate development consent". There are cases in which express provision of this character will operate to the exclusion of the overlapping provision of the Interpretation Act.
83 In G F Heublein & Bro Incorporated v Continental Liqueurs Pty Ltd [1962] HCA 66; (1962) 109 CLR 153 at 161, the High Court concluded that in the statutes there under consideration, the express provision made in the subsequent act with respect to applications under the repealed act was intended to be exhaustive and, accordingly, an overlapping provision in the Interpretation Act 1901 (Cth) did not apply. (cf Interlego AG v Croner Trading Pty Ltd [1992] FCA 624; (1992) 39 FCR 348 at 384).
84 In the present case, such a conclusion depends on the proposition that cl 8 of Schedule 6 restricts the continued protection to cases of mining leases which can be said to have been "granted in accordance with s116" in the sense that there had been a "requirement" under s116(1)(a). This would have the effect that all conditions which had been void for up to a decade - between the time of the 1983 amendments to the 1973 Act and the time of the 1992 Act - would thereupon revive.
85 I can see no basis for such a conclusion. For purposes of the present case, it makes no difference whether a flexible interpretation is given to the phrase "in accordance with" in cl 8, or whether cl 8 is found not to be exhaustive. I prefer the latter.
86 Schedule 6 is concerned with "Saving, transitional and other provisions". Clause 1 makes provision for regulations to make further provision of a "savings or transitional nature". Such regulations could make further provision with respect to matters hitherto protected by s116(3A) on the basis that the formulation in cl 8 "in accordance with s116" does not cover subsection 116(3A). In my opinion, cl 8 is not exhaustive with respect to savings and transitional provisions. There is scope for the application of the overlapping provisions of the Interpretation Act.
87 I should note that this conclusion is not inconsistent with my acceptance of Stein JA's reasoning that cl 8 operates, to the exclusion of cl 4(2). The latter is a general provision which would render nugatory all special provisions of which there are a number of examples in Schedule 6.
88 Section 116(9) of the 1973 Act defines "prescribed condition" to mean, inter alia, a condition concerning "mining methods to be employed". Talbot J referred to cl 15 in Div 2 of Pt 2 of Schedule 1 to the 1992 Act which made provision for a "special purpose condition" in terms, which his Honour said, and the Appellant accepted in this Court, did not relevantly differ from the definition of "prescribed condition" in the 1973 Act. His Honour held that each of the conditions relied on by the Appellant were "special purpose conditions". His reasoning would apply to the characterisation of each as a "prescribed condition" for purposes of s116(3A) of the 1973 Act.
89 The Appellant submitted that each condition related to the consequences of mining, i.e. no "detrimental effect", "no increase in ... iron", no "lesser quality". However, in each case, as I have indicated, the operative effect of the obligation is on the verb in the formulation "shall conduct operations". The obligation is not an obligation to secure or avoid an effect. The obligation is to conduct mining so as not to have an effect.
90 The full context of each relevant condition makes it clear that the "operations" referred to encompass "mining methods" within the definition of a prescribed condition. I note that, by s6(1) of the 1973 Act the word "mine" when used as a verb is defined to mean:
"to disturb, remove, cast, carry, wash, sift, smelt, refine, crush or otherwise deal with ... sand ... for the purpose of obtaining any mineral."
91 In Condition 1, the aquifer condition, the obligation is "shall conduct operations in such a manner as not to cause any detrimental effect to the aquifer". The second sentence of the condition states that as these "effects" may take time, "mining" is to be considered a "trial" and it is for that reason that the "rate of mining" is to be limited. The reference to "operations" plainly encompasses "mining methods".
92 The position is the same in the water pollution condition. Condition 20 imposes the obligation "shall so conduct operations that there is no increase ...". The link to mining methods is express in the formulation of what must not increase, by referring to both a standard of comparison and a causal mechanism. The standard of comparison is "no increase" in what was present in ground water "prior to mining operations". The causal mechanism is "saline, iron or other deleterious content of the water caused by the mining process".
93 Similarly in condition 30, the obligation is expressed in terms of "will so conduct operations". However, the location of the obligation is expressed to be "the ground water in and around the ground mined" and the warranted effect is that this water "is not caused to become of lesser quality after mining than ... before mining".
94 In each case the obligation is, in my opinion, focussed on mining methods. Accordingly, by force of s116(3A), operations under the excision leases did not result in a breach of any condition of development consent.
95 On this analysis any breach of Conditions 1, 20 and 30, is confined to the operations in ML594. The submissions in this Court did not focus on the consequences, if separately identifiable at all, of breach of the conditions arising from operations in this lease area. The submissions, and such of the evidence to which the Court's attention was directed, were concerned with the effects of mining in all lease areas. Perhaps some separate effects from operations in ML594 can be identified. However, the evidence was not marshalled in this way. Subject to the exercise of the discretion to grant relief, it would be appropriate to remit the matter to the Land and Environment Court in this regard.
Relief
96 As Stein JA indicates, Talbot J granted leave to institute proceedings under the Environmental Offences and Penalties Act 1989 ("the EOP Act"). That judgment has not been appealed. Subsection 25(1) and (5) of that Act provide:
"25(1) Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of this or any other Act, or any statutory rule under an Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment."
"(5) If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed."
97 I agree with Stein JA that, for the reasons advanced by Pearlman J in Brown v EPA (1992) 78 LGERA 119, the word "restrain" when appearing in subs 25(1) and (5) is not to be interpreted in a narrow or technical sense. The submissions of the Second and Third Respondent to the effect that the section only permits orders in the form of an injunction should be rejected.
98 The issue of relief turns on the fact that mining in the Tomago Sandbeds has ceased and will not be resumed. Under s25(1) the question is whether any "breach" which this Court or the Land and Environment Court finds to exist "is causing or is likely to cause harm to the environment". The critical aspect of the provision is the tense. The breach which is to be "restrained" is a breach that either "is causing" or "is likely to cause" harm to the environment.
99 The issue is whether the present tense of the statutory formulation qualifies both the occurrence of the harm and the occurrence of the breach. If all that is required is the occurrence of the harm, then the Court's power may extend to past breaches. The context suggests that the tense applies to both i.e. the breach must also be current. Subsection 21(5) gives power to make orders to restrain breaches which "will be committed". In my opinion, the power does not extend to past breaches with current effects.
100 Stein JA concludes that the breach of conditions of the development consent are continuing and will continue until remedied. His Honour states that the essence of the breach of Condition 1 is the causing of a detrimental effect to the aquifer and that the breach of Condition 20 is the causing of an increase of iron and, presumably also of arsenic in the ground water. His Honour holds that these breaches are continuing in that they are the continuing consequences of the mining operations.
101 The issue is one of characterisation of the breach. As quoted above each of the three conditions are expressed in terms of "shall conduct operations" with the effects, or absence of effects, identified in each of Conditions 1, 20 and 30. As I have indicated above, in my opinion, the critical words in each condition are the words "conduct operations". I do not agree that the appropriate characterisation of the conditions is to focus on the consequences of mining so that, as long as such consequences exist, there is a continuing breach of condition. The obligation, in my opinion, is to "conduct operations" with a particular effect. If there are no operations there is no present and continuing breach of the conditions.
102 On the basis of this analysis there is no "breach" which, in terms of s25 of the EOP Act, "is causing or is likely to cause harm to the environment". Any breach of a condition expressed in terms of shall "conduct operations", has caused harm to the environment and such harm continues. In the absence of any operations, however, there is no continuing breach of the obligation to "conduct operations" with a particular effect. Accordingly, the breach is not at present "causing harm to the environment". Nor is there any likelihood of such harm.
103 The Appellant submitted that the words "conduct operations" in each of Conditions 1, 20 and 30 should be extended to encompass the steps taken by way of rehabilitation and not be limited to the process of mining in the sense of the extraction of mineral sands. It may very well be that steps taken in the course of rehabilitation are capable of having, in and of themselves, some form of "detrimental effect to the aquifer" or to cause an "increase" in "saline, iron or other deleterious content" or otherwise affect the quality of ground water. Nothing of that character is suggested in this case. Rather, the Appellant's submissions were directed to the proposition that as "operations" in the form of rehabilitation were still being "conducted", there was a current breach because such operations can extend to steps taken to remedy the effects of past extraction conduct.
104 Even if one were to accept the Appellant's contention that "rehabilitation" is the "conduct" of "operations", within the meaning of each of the three conditions, there is nothing to suggest that any breach of the condition is occurring in the course of such "rehabilitation". The obligation in Condition 1, on this basis, would be to "conduct" rehabilitation "in such a manner as not to cause any detrimental effect to the aquifer". There is no evidence suggesting that rehabilitation is being conducted with any such effect. Similarly, in Condition 20 the obligation would be to "so conduct" rehabilitation so that "there is no increase ... in the saline, iron or other deleterious content of the water". And in Condition 30 the obligation would to "so conduct" rehabilitation that the "ground water ... is not caused to become a lesser quality after mining". In neither case is there any suggestion that the "operations" currently being conducted in the form of rehabilitation, on the assumption that such answers the description of "operations", are being conducted in a manner to cause either of the effects.
105 Counsel for the Second and Third Respondents accepted that the reference to "remedy" in s124 of the Environmental Planning and Assessment Act was sufficient to encompass orders by the Land and Environment Court which could require something further in the form of rehabilitation over and above that which is presently proposed. This concession was properly made.
106 In my opinion, there is a case that there has been a breach of Conditions 1, 20 and 30 with respect to ML594. Talbot J did not make the findings of fact which were necessary to draw the conclusion that any condition has been breached. The matter should be remitted to the Land and Environment Court on the basis that it remains open to that Court to determine whether there was, in the past, a breach of those conditions and, if so, what if any orders by way of "a remedy" are appropriate under s124 of the Environmental Planning and Assessment Act.
107 The orders I propose are:
1 Appeal allowed with costs.
2 Set aside the order of Talbot J dismissing the application.
3 Remit the proceedings to the Land and Environment Court to consider whether there was any breach of Conditions 1, 20 and 30 of the development consent with respect to the conduct of operations in ML594 and if so to consider what further orders, if any, should be made, under s124 of the Environmental Planning and Assessment Act 1979, requiring the Second and Third Respondents to remedy any contravention of that Act arising from such breaches of these conditions as that Court determines to have occurred.
108 POWELL JA: In this matter I have had the opportunity of reading in draft the several judgments which have been prepared by Spigelman CJ and Stein JA. Subject to the additional comments which I record below, I agree with the orders proposed by Spigelman CJ and with the reasons which his Honour, in his Judgment, has given for proposing those orders.
109 It seems to me that the first question to be resolved is as to the scope of the 1978 and 1979 Development Consents, for, as will be apparent, the primary basis for Stein JA's conclusion that the appeal should be upheld is that neither of those consents authorised re-mining or deep mining and that RZM's conduct of such mining activities thus involved it in the carrying on of development without consent.
110 At the respective times when the Development Applications were made and the 1978 and the 1979 Development Consents were granted, lands within the Shire of Port Stephens were subject to Interim Development Order No. 23 - Shire of Port Stephens ("IDO 23") which IDO had been made by the then Minister for Planning and Environment on 10 May 1974 and had been published in the New South Wales Gazette of 17 May 1974.
111 Clause 2(1) of the IDO provided (inter alia) as follows:
"2(1) In this Order unless the context or subject matter otherwise indicates or requires:
'Mine' means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode, or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place adjoining on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry.
'Mineral sand mine' means a mine for or in connection with the purpose of obtaining ilmenite, monazite, rutile, zircon, and similar materials.
112 Clause 3 of the IDO set out, in the usual form, the Land Use Table, which table made provision for (inter alia) a Special Uses "A" zone within which zone "mineral sand mines" were designated as a Column IV development, that is, developments which might be carried out only with the consent of the Council.
113 The lands the subject of each of the 1978 and the 1979 development consent were located within a Special Uses "A" zone.
114 In the Development Application which led to the grant of the 1978 Development consent, the description of the development proposed was given as "mineral sands mine".
115 The Shire Clerk's letter of 7 June 1978 which conveyed the Council's consent to the development proposed commenced as follows:
"I have to advise that the application to use the above land has been dealt with and approved subject to any conditions that may appear in Schedule 1, on the reverse side of this consent.
116 In the Development Application which led to the granting of the 1979 Development Consent, the description of the development proposed was given as "mineral sands mining - enlargement of existing use - South-Western and North-Western extensions to mining operations currently being carried (sic) within Mining Lease No. 594 (Act 1973) Parishes Eldon and Stockton."
117 The Shire Clerk's letter of 28 March 1979 conveying the Council's consent to the development proposed commenced:
"I have to advise that the application to use the above land has been dealt with and approved, subject to any conditions that may appear in Schedule 1 on the reverse side of this consent."
118 Given the description of the proposed development for which consent was sought in each of the two Development Applications and the definitions of "mine" and "mineral sand mine" contained in the IDO, it seems to me that each of the 1978 and the 1979 Development Consent, unless to be read down by reference to the conditions attached to each consent, was a consent to the carrying out on the land the subject of each application for development consent of any type of operation which might be carried on for, or in connection with, the obtaining of mineral sands.
119 The question then is, whether the conditions attached to each consent, and, in particular, Condition 64 so operate as to restrict the ambit of each consent so as to preclude the re-mining of lands already mined and deep mining of such lands.
120 In his Judgment, Stein JA wrote (inter alia) as follows:
"In general terms what occurred was that RZM carried out mining of the subject land. This operation has been referred to as shallow mining, to a depth of a maximum of minus RL3m. The mined area was then rehabilitated. RZM then re-mined the same area (from 1986 to 1990) and later from August 1990 carried out deep mining to a depth of up to 12m in excess of shallow mining.
The consent does not define any of the terms - shallow mining, re-mining or deep mining. It refers only to 'mining'. However, the plain words of Condition 64 provide that the lease holder 'shall mine the subject area once only'. This statement is then qualified, 'unless' the consent to do so has been obtained from the nominated third parties. it is plain that the Council could not delegate its statutory role as consent authority to a third party if the effect of doing so is to fundamentally alter the ambit of the approval. Mining the land more than once would do this. It would offend the principle in Mison v. Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 471.
On its face Condition 17(a) appears to allow mining to a depth approved from time to time by the Minister and the Board. It does not authorise 're-mining' a such, but it may assist RZM's argument with regard to deep mining. Condition 17(b) appears to provide that the Board will not permit mining below levels of the 'highest ground water level' with a 'factor of safety'. Condition 17(c) (like condition 1) emphasises the experimental nature of the mining operation and its inherent risks for the Board's water supply. Condition 17(d) requires the leaseholder to submit to the Minister and the Board annual proposals for mining including mining depths.
Nothing in Condition 17 is directed to re-mining of an area once it has been mined, particularly if it is has been rehabilitated. Indeed, it says nothing specifically to re-mining of an area already mined under the consent. It may arguably be relevant to deep mining with reference to mining to the depths approved from time to time by the Minister and the Board. However, as I have said, I do not see how the approval of deep mining can be delegated by the Council to a third party. It would make the consent relevantly uncertain given its ambit and offend the Mison principle. Condition 17 may therefore be seen as requiring that RZM obtain further approvals for deep mining, outside the development consent."
121 If I may, with respect, say so, I have difficulty in following the approach revealed by his Honour in the passages which I have just set out and, in particular, in determining the use which his Honour has sought to make of the decision of this Court in Mison v. Randwick Municipal Council.
122 The burden of the Court's decision in Mison v. Randwick Municipal Council can be found in the Judgment of Priestley JA (1991) 23 NSWLR 734, 737 where his Honour wrote as follows:
"In my opinion if a condition imposed upon a purported consent to a particular application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application. It does not seem to me to be necessary to consider the different and harder to establish test that compliance with the condition will make the application an 'entirely different development'.
The test I have stated is not complete. Certainly, in my opinion, if the fulfilment of a condition imposed upon a consent will significantly alter the development in respect of which the application was made, there has been no consent to the application. Further however, if the effect of an imposed condition is to leave open the possibility that development carried out in accordance with the consent and the condition will be significantly different from the development for which the application was made, then again, it seems to me that the Council has not granted consent to the application made."
123 For his part, Clarke JA wrote supra at 739-740:
"Where a consent has been granted in terms which leave open for later decision a particular aspect of the planned development the question may arise whether the consent is final. This will not necessarily be the case. Where, however, the question does arise there may be cases in which the answer is clear. In other instances questions of degree may be involved. It is neither possible nor desirable to attempt to lay down a criterion to be applied in every case determining whether a consent is final. What must be decided is whether the consent finally determines the development application.
Where a consent leaves for later decision an important aspect of the development and the decision on that aspect could alter the proposed development in a fundamental respect, it is difficult to see how that consent could be regarded as final. An example of a case in which a purported consent was held not to be final is to be found in Lend Lease Management Pty. Ltd. v. Sydney City Council (1986) 68 LGRA 61. In that case Cripps J (at 85) concluded that a purported consent which left to the city planner the power to determine which of two substantially different floor ratios should be applied to the development consent was not a valid consent.
It seems clear to me that his Honour reached that conclusion upon the basis that the responsible authority had not finally disposed of the application. It had, on the contrary, delegated to its planner the power to make a further decision which, depending upon the view that the planner took, could fundamentally alter the development. Until that decision had been made it could not be said that the application had been determined."
124 If the ambit of each consent is as I have suggested above, then it seems to me that the provisions of neither Condition 17 nor Condition 64 can properly be regarded as attracting the approach taken by this Court in Mison v. Randwick Municipal Council, for approvals given pursuant to Condition 17 would not, nor would consents given pursuant to Condition 64, fundamentally alter the nature of the development to which, in each case, consent had been given - such approvals or consents would do no more than vary, from time to time, restrictions on the manner of conducting mining operations.
125 If, however, contrary to the view which I have just expressed, such approvals or consents could properly be regarded as fundamentally altering the nature of the development to which, in each case, the "consent" was given then, as the passages from the Judgments of Priestley and Clarke JJA in Mison v. Randwick Municipal Council make clear the result, in law, would be, not - as Stein JA's Judgment seems to suggest - that, to the extent to which Conditions 17 and 64 make provision for the giving of such approvals or consents, those conditions may be set to one side, but, rather, that there has never been a valid consent to the proposed development described in each application for development consent.
126 A recent example of the application of the decision of this Court in Mison v. Randwick Municipal Council is to be found in the Judgment of Pearlman J in Glowpace Pty. Ltd. v. South Sydney City Council (2000) 111 LGERA 84 where her Honour held that a purported development consent was fundamentally flawed in that the Council had not determined the precise location of an automatic public toilet, it following that the Council had not finally disposed of the relevant development application and had thereby not granted a development consent at all. In this regard her Honour said supra at 90:
"There can be no doubt, in my opinion, that the precise locations of the Kings Cross APT was a fundamental aspect of the proposed development. It was fundamental to the assessment of the impact of the proposed development under s.90(1) of the EP & A Act. 'Location' is a specific matter required to be taken into account under s.90(1)(e); and other matters requiring consideration under s.90(1) depend upon knowing the location of the development, such as, for example, the effect of the proposed development on the scenic quality of the locality (s.90(1)(c)), or the relationship of the proposed development to development on adjoining land or on other land in the locality (s.90(1)(h)), or the existing or likely future amenity of the neighbourhood (s.90(1)(o)).
I conclude that the development consent was neither final nor certain, and that accordingly it is not a valid consent."
127 STEIN JA:
Introduction
128 This is an appeal from a decision of Talbot J given in the Land and Environment Court on 20 December 1996.
129 His Honour dismissed an application for relief brought in Class 4 of the Court's jurisdiction. The case concerned mineral sands mining of the Tomago sandbeds for rutile and zircon.
The parties
130 The litigation involves multiple parties, some of whom are no longer participants. The first respondent, the Director General of the National Parks and Wildlife Service, is the licencing authority under wildlife legislation and issued certain licences to the mining operator. He has taken no active part in the proceedings.
131 The second and third respondents are mining companies, one being the holder of mining leases and the other the operator of the sand mining project. I will refer to them as RZM.
132 The fourth and fifth respondents, the Director General of Mineral Resources and the Minister for Mineral Resources (the Minister), have powers and discretions under the Mining Act 1992 and its predecessors, and made decisions to grant mining leases. They were joined in the proceedings on the application of RZM.
133 The sixth respondent, the Director General of the Department of Land and Water Conservation, took over the land management powers in relation to the sandbeds from the Hunter Water Corporation in 1995 and issued a permit to RZM for extraction from the sandbeds. He filed a submitting appearance.
134 The appellant is Mr Paul Winn, an interested member of the public.
The proceedings in the Land and Environment Court
135 The proceedings were commenced in late 1995 when a question concerning the validity of the then current mining operations was separately determined by Bannon J, favourably to the appellant. Amendments to planning legislation then retrospectively reversed the effect of the judgment. The appellant then proceeded with the remaining issues in the case. On 27 March 1996 Talbot J granted leave to the appellant under s 25 of the Environmental Offences and Penalties Act 1989 (the EOP Act) to proceed for relief in relation to legislation other than prescribed `planning and environmental laws' specifically referred to in s 20 of the Land and Environment Court Act 1979. That leave is not in issue in these proceedings. The other relief sought by Mr Winn is under s 124 of the Environmental Planning and Assessment Act 1979 (the EPA Act) and he proceeds under the open standing provision in s 123 of that statute.
136 Many of the issues in the case concern the tension and relationship between planning and environmental legislation and mining legislation. It will be necessary to set out some of the relevant provisions. Before doing so it is preferable to recount some of the material facts.
The facts
137 The Tomago sandbeds are an extensive coastal sand deposit north of Newcastle, located generally between the Hunter River and Port Stephens. They are 32km long and between 4 and 14km wide, with an average thickness of 18m. The sandbeds form an aquifer with a base of rock or clay. Water has been pumped from the aquifer for more than 60 years and has provided part of the potable water supply of Newcastle and the Hunter region. The Hunter Water Board (the Board) is responsible for the water supply and, until around 1995, was also responsible for the regulation of activities in the Tomago sandbeds. By 1995 the sandbeds were supplying one-quarter of the water needs of the region. Twenty pump stations were established in the aquifer with a network of bores. By the time the proceedings had commenced, at the end of 1995, some of the groundwater intake contained high iron concentrations which caused the abandonment of some pump stations. It is the appellant's case that the high iron content was caused by RZM's mining activities.
138 The sandbeds are Crown land and, from at least 1938, the Board was constrained by statute from issuing leases or permits in the sandbeds unless approvals could be given without any danger of pollution to the water supply. The Board was given powers to regulate pollution in the catchment in order to preserve the purity of the water supply. In short, legislation gave the Board responsibility to manage the sandbeds which extended beyond the mere protection of its asset to supply potable water.
The subject mining leases
139 Five mining leases are relevant. The most extensive in area and importance to the proceedings is ML594 granted on 3 May 1978. Areas were excised from it in 1986 and 1990 after mining and rehabilitation in ML594 was completed. Mining Leases 1170, 1222 and 1226 were granted between 14 July 1986 and 6 June 1990 and re-mining and deep mining of these areas took place. For convenience these leases will be referred to as `the excision leases'. Mining Lease 744 was granted on 6 June 1979. ML594 was renewed on 30 June 1995.
140 Since the proceedings commenced and since the trial, mining has taken place on most of these leases. However, no mining is presently taking place or is contemplated on any of the leases. Rehabilitation is presently being undertaken by RZM. The appellant's case is that the rehabilitation being undertaken is wholly inadequate. That is, inadequate in terms of surface rehabilitation but, more significantly, in relation to the need to wash and cleanse the aquifer of iron and arsenic contamination. The principal objective of Mr Winn in the proceedings in the Land and Environment Court was to obtain mandatory orders for rehabilitation of the aquifer.
Development consents
141 RZM obtained two relevant development consents under planning legislation. The first was granted by the Port Stephens Shire Council (the Council) on 7 June 1978, with the concurrence of the then Planning and Environment Commission (the PEC), the predecessor of the Department of Urban Affairs and Planning. The consent related to ML594. It is important to note that the development consent was granted after ML594 was granted to RZM. As will be seen, this affects the question of RZM's immunity from planning law. The second development consent was granted by the Council on 28 March 1979 and related to ML744. Only limited mining has occurred in ML744, granted after the development consent. The appeal is therefore principally concerned with ML594 and with the excision leases.
Contamination of the aquifer
142 There appears to be little doubt that mining of the sandbeds has produced widespread contamination of the groundwater in the aquifer. While the initial shallow mining appears to have raised iron levels only marginally, re-mining of areas already mined (which commenced in 1986) and deep mining (which occurred from August 1990) appears to have caused significant increases in iron levels. This is particularly the case with regard to deep mining.
143 In 1995 a steering committee was formed to consider the situation. Its consultants summarised the trends in iron concentration in the sandbeds in relation to the differing types of mining as follows:
Pre-mining: 2-5mg/L in upper areas and 1-44mg/L at depth. This is iron naturally occurring.
After shallow mining: 10-20mg/L after 3 - 4 years declining to 4mg/L after 20 years.
After re-mining: 20-40mg/L after 2 - 4 years, peaking at 40-70mg/L after 4 - 7 years, thereafter declining to background levels.
Deep mining: 100-200mg/L after 1 - 3 years, peaking in year 4, with evidence of sustained decline in a few observable piezometers.
144 There was significant controversy at the trial between the experts as to the rate of decline in iron levels over time. It is unnecessary at this time to explore the issue suffice to say that it appears to be common ground that it will take at least 20 years, if not considerably longer. It should also be mentioned that arsenic is mobilised in conjunction with iron. That is, there is a direct relationship between iron and arsenic levels. The elevated levels of iron and arsenic are largely the result of oxidation in the mining process.
145 From the report No 2 of Sinclair Knight Merz to the steering committee the following can be gleaned. The worst case water quality for iron is 200mg/L as against a typical background of 4.4. This contrasts with the NHMRC 1994 draft drinking water quality guidelines of 0.1. In a high iron situation arsenic was estimated at 0.120 with a background of 0.002, as compared with the draft guideline of 0.007.
The granting of the development consents
146 The land was zoned special uses under the Port Stephens Interim Development Order 23 (the IDO). Mineral sand mining was a permissible use with the consent of the Council but subject to the concurrence of the PEC, and with any conditions that the PEC stipulate. The most relevant consent, granted on 7 June 1978, followed the lodging of a development application by RZM with the Council on 1 February 1978. At that time there had been some previous sandmining of the sandbeds by RZM and an earlier development consent had been granted in 1971. For a period of around 12 months (from January 1977) RZM and the Board negotiated the terms of conditions of authority for mining in the aquifer. Agreement had been reached by the time RZM lodged its development application with the Council. RZM had already applied for a mining lease over the area included in the development application. The development application was accompanied by a letter from RZM outlining details of the proposed mining and a map of the mining lease applications and proposed mining paths.
147 The Council referred the application to the PEC. RZM made submissions to the PEC for its concurrence, including the provision of a statement of environmental factors. In the meantime ML594 was granted by the Minister on 3 May 1978. Some days thereafter the PEC wrote to the Council indicating its concurrence to the proposed mineral sand mining subject to three conditions. The third condition was that the `conditions of authority', referred to above, become `part of the development consent'.
148 On 7 June 1978 the Council wrote to RZM indicating that its application had been approved subject to the conditions in schedule 1. The schedule required compliance with the PEC's conditions and enclosed a copy. The conditions comprise 67 conditions identical to the `conditions of authority' negotiated earlier between RZM and the Board. The appellant contends that RZM has breached a number of these conditions.
149 The heading of the letter notifying the grant of consent identifies certain Portions of land and `Mining Lease No 594'. It should be noted that ML594 also included the terms of the conditions of authority earlier mentioned.
150 It is important to understand that apart from the 1978 development consent (and the 1979 consent relating to ML744) no other planning consents have been issued. It should also be mentioned that the sixth respondent granted a Regulation 27 permit to RZM on 9 August 1995 pursuant to the Hunter Water Board (Special Areas) Regulation 1989.
Legislative Framework
151 When RZM originally applied for a mining lease over what ultimately became ML594 the Mining Act 1906 was in force. However, the Mining Act 1973 repealed the 1906 Act. The 1973 Act commenced on 29 March 1974. By the transitional provisions of the 1973 Act, Part 6 (including s 116) did not apply to the mining lease application. Accordingly, it was unnecessary to obtain development consent before the granting of a mining lease where the application was lodged before the commencement of the 1973 Act, as was the case.
152 In its original form s 116 relevantly provides as follows:
(1) Where the consent of an authority is necessary under a scheme to the use of land for the purpose of obtaining minerals the Minister shall, before a mining lease over the land is granted by instrument in writing served -
(a) on the applicant for the mining lease, require him, within such time as is specified in the instrument, to make the appropriate application to the appropriate authority for that consent; and
(b) on the authority concerned -
(i) notify the authority that the applicant for the mining
lease has been required to apply for the consent of
the authority and state, in the instrument, the conditions proposed to be included in the mining lease, if granted; and
(ii) inform the authority that proposals for the inclusion in the mining lease, if granted, of conditions (including prescribed conditions) which the authority wishes to have included in the lease should be lodged with the Under Secretary within such period as is specified in the instrument.
...
(3) Any condition (being a prescribed condition) imposed by an authority, or a body hearing an appeal from an authority, as a condition of, or in connection with, the consent given to a person applying for that consent pursuant to a requirement by the Minister under subsection (1)(a), is void and the consent to the use of the land concerned for the purpose of obtaining minerals shall be deemed to have been given free of the condition.
(4) Subject to subsections (5) and (7), where -
(a) pursuant to a requirement of the Minister under subsection
(1)(a), an applicant for a mining lease over land obtains
the consent of an authority, or of a body hearing an appeal
from the authority, to the use of the land for the purpose of
obtaining minerals; and
(b) the mining lease is granted to that applicant,
nothing in or done under Part XIIA of the Local Government Act, 1919, or an ordinance, order or proclamation made for the purposes of that Part, shall operate so as to prevent the registered holder of the mining lease from carrying on mining operations in the mining area, and to the extent that anything in, or done under, that Part or such an ordinance, order or proclamation would so operate, it shall be of no force or effect in relation to the mining area or the registered holder of the mining lease.
(5) Subsection (4) does not operate so as to exempt the registered holder of a mining lease -
(a) from obtaining any consent which he is required to obtain
in connection with the erection of buildings, the opening
of roads or the subdivision of lands; or
(b) from complying with any condition (not being a prescribed
condition) subject to which the consent to use the land for
the purpose of obtaining minerals was given.
...
(7) Subsection (4) shall cease to apply in the case of a mining lease where mining operations under that lease have not been commenced within five years from the date on which the consent was given to the use of the land (subject to the lease) for the purpose of obtaining minerals.
...
(9) For the purposes of this section -
"authority" means the authority or body empowered to consent to the use of land for the purpose of obtaining minerals;
"prescribed condition" means a condition concerning -
(a) the preparation of land for mining;
(b) mining methods to be employed;
(c) the reinstatement of land either during the carrying on of mining operations or after they have ceased;
(d) safety measures to be adopted either before mining
operations are commenced, while they are being carried on
or after they have ceased; or
(e) guarantee deposits to be made with regard to the
performance of any matter referred to in paragraph (a), (b),
(c) or (d);
"scheme" means -
...
(b) an interim development order made under section 342U of
that Act; or
153 With the passing of the EPA Act in 1979 consequential amendments were made to the Mining Act 1973. Section 116(1) substituted reference to where a development consent was necessary under the new planning legislation, in lieu of the reference to consent under a scheme. Upon the amendment ss (1) provided:
Where the consent of an authority is necessary under the Environmental Planning and Assessment Act, 1979, to the use of land for the purpose of obtaining minerals the Minister shall, before a mining lease over the land is granted, cause an instrument in writing to be served -
154 Similar amendments were made to ss (4).
155 In 1983 the following words were inserted in ss (1) after the word `granted' - `to the applicant for the mining lease (being an applicant who has not already obtained that consent)'.
156 Also in 1983 ss (3A) was inserted into s 116. This provided:
Where a mining lease is granted over any land to a person, any condition (being a prescribed condition) imposed by an authority, or a body hearing an appeal from an authority, as a condition of, or in connection with, a consent to the use of the land for the purpose of obtaining minerals given to the person before the grant of the lease (otherwise than pursuant to a requirement under subsection (1) (a)) is void and the consent to that use of the land shall be deemed to have been given free of the condition.
157 The Mining Act 1992 repealed the 1973 Act. None of the subject mining leases were granted under the 1992 Act. However, its transitional provisions, and the successor to s 116 (ss 65 and 74), are relevant. Schedule 6 to the 1992 Act contains the savings and transitional provisions. Clause 4(2) provides:
A mining lease or mining purposes lease granted under the Mining Act 1973 ... and in force immediately before the relevant commencement is taken to be a mining lease granted under this Act.
158 Clause 8 provides:
Sections 65 and 74 of this Act apply to and in respect of a mining lease granted in accordance with section 116 of the Mining Act 1973 ... before the relevant commencement in the same way as they apply to and in respect of a mining lease granted in accordance with this Act.
159 Section 65 applies to land for which development consent is required before it may be used for the purpose of obtaining minerals. It relevantly provides as follows:
(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.
160 Section 74 provides:
(1) While a mining lease has effect:
(a) nothing in, or done under, the Environmental Planning and
Assessment Act 1979 or an environmental planning
instrument operates so as to prevent the holder of the
mining lease from carrying on mining operations in the mining area, and
(b) to the extent to which anything in, or done under, that Act
or any such instrument would so operate, it is of no effect
in relation to the holder of the mining lease.
(2) Subsection (1) ceases to apply to a minimum lease over land for which development consent to the use of land for the purpose of obtaining minerals is required if mining operations under the lease have not begun within 5 years after the date on which the development consent is given.
Judgment at first instance
161 In a judgment necessarily of some considerable complexity and length, his Honour made a large number of findings, many of which are challenged.
162 His Honour found that RZM's letter of 1 February 1978 accompanying the development application was only relevant to identify the land the subject of the consent by reference to the attached plan. Beyond the intention to carry out a development for sand mining, the consent was not confined by anything said in the letter. These findings are challenged.
163 Condition 64 of the development consent granted on 7 June 1978 provided:
The registered holder shall mine the subject area once only, unless with the consent in writing of the Minister for Mines and the Board first had and obtained and subject to such conditions as they may stipulate.
164 Talbot J found that condition 64 did not prevent re-mining or deep mining. It did not impose a requirement for further consent from the Council. It merely required that the Minister and the Board be given the opportunity to intervene and impose conditions. Accordingly, no question of certainty or finality of the consent arose. This finding is disputed.
165 His Honour found that by 1992 when s 116 was repealed, it had the effect of rendering void any prescribed condition in a development consent irrespective of whether the consent was issued following a requirement of the Minister under s 116(1)(a). His Honour stated that it was not until ss (3A) was inserted in 1983 that the conditions imposed in a consent, granted otherwise than in accordance with s 116(1)(a), were voided. His Honour noted however that ss (3A) only applied if the consent was given before the grant of the lease. Talbot J continued that under s 116(4), once consent was obtained and the lease granted, nothing in or done under the EPA Act operated to prevent mining operations. After 1983, ss (4) applied irrespective of whether the consent was obtained pursuant to a requirement under s 116(1)(a). However, since ss (4) referred to `an applicant for a mining lease' the consent was required prior to the grant of a mining lease.
166 His Honour noted the similarity between s 116 of the 1973 Act and ss 65 and 74 of the 1992 Act. He turned to the transitional provisions in the 1992 Act and held that cl 4(2) had general application to all leases under the 1973 Act, which are taken to have been granted under the 1992 Act. Clause 8 was more specific and brought within the application of ss 65 and 74 only those leases granted in accordance with s 116 of the 1973 Act. His Honour noted that s 116 did not apply to all leases granted under the 1973 Act. If cl 8 was construed strictly, ss 65 and 74 would apply only to those leases granted `in complete agreement with s 116'. Talbot J concluded:
It would not be inconsistent with the legislative scheme to accept any lease granted after a necessary land use consent had been given, irrespective of a requirement under s 116(1)(a), as being a lease granted in accordance with s 116 for the purpose of cl 8.
167 Talbot J's construction of cl 8 is contested.
168 Addressing s 65 his Honour noted that it only had effect on a special purpose condition if `a mining lease is granted over land for which an appropriate development consent has been given'. The section is clearly prospective and has effect only in respect of leases granted under the 1992 Act. He continued that cl 8 should be construed with s 65 in mind, so that s 65 would apply to 1973 Act leases as if they were granted over land for which an appropriate consent has been granted.
169 In rejecting the appellant's submission on cl 8 his Honour said:
It would be an unfortunate result if a lessee had the benefit of s 116(3A) and (4) at the date of repeal in 1992 but, because of a constrained application of cl 8, it thereafter did not have the benefit of s 65. Conditions declared to be void at one instance would be reinstated the next. Either the conditions became void after 1983, and a consent to the use of the land was deemed to have been given free of the conditions thereafter, or s 65 had that effect.
170 This statement is also contested.
171 His Honour noted that s 74 applied whenever a mining lease `has effect'. It was therefore difficult to see how cl 8 achieved anything further in regard to s 74. Clause 8 should not be read as limiting the effect of cl 4(2). Section 74 applied to any lease granted under the 1973 Act, and in force at the commencement of the 1992 Act, by dint of cl 4(2) alone. This conclusion is disputed.
172 His Honour held that the orders sought by the appellant would effectively `prevent' the holder of the mining lease from carrying on mining operations contrary to s 74(1)(a). This provision took away the power under s 124 of the EPA Act to grant any remedy which would prevent mining.
173 Talbot J turned specifically to the mining leases. With respect to ML594, it was not granted in breach of s 116 because it was applied for under the 1906 Act and quarantined from s 116 of the 1973 Act. His Honour added that equally it could not be said that the lease was granted in accordance with the procedures required by s 116(1). This was because there was no evidence of a requirement by the Minister to make an application for consent. Further, since the grant of the lease predated the development consent, it would not be a consent given before the grant of the lease for the purpose of ss (3A). Accordingly, his Honour concluded that none of the conditions of the 1978 consent could be regarded as `prescribed' conditions as a consequence of the grant of ML594. The appellant relies on these findings and no notice of contention has been filed.
174 His Honour noted that the respondents relied solely on s 116(4) with regard to ML594 to support an argument that it was granted in accordance with s 116. However, Talbot J held that ss (4) never applied to ML594 because the development consent was issued after the lease was granted. The `applicant' for the mining lease never obtained it. Therefore, cl 8 did not have the effect of applying s 65 to ML594. Any prescribed conditions or special purpose conditions in the 1978 consent were not rendered void by s 116 or s 65. The appellant supports these findings and again no contention has been filed.
175 However, Talbot J found that the effect of cl 4(2) and s 74 is that, because ML594 was in force, the mining lease is taken to be granted under the 1992 Act. Therefore s 74 applies and operates to negate the power of the Land and Environment Court to make an order which would prevent the leaseholder from carrying on mining operations.
176 Mining Lease 744 was however in a different category to ML594 since it was granted subsequent to development consent issued on 28 March 1979. The 1979 consent was the grant of an appropriate application under s 116. Irrespective of any conflict between cll 4 and 8, ss 65 and 74 applied to ML744.
177 Dealing with the excision leases, his Honour held that s 116(1) did not apply because consent was unnecessary having already been obtained, viz. the 1978 and 1979 consents. Subsection (3A) applied and the leases were granted in accordance with s 116 for the purpose of cl 8. His Honour rejected the appellant's argument that s 116(7) meant that ss (4) did not apply because mining `under' those leases did not commence within 5 years from the date of the consent. Talbot J found nevertheless that s 74 applied to the leases because, when it came into force, they had effect.
178 Talbot J then considered the relevance of s 65 of the 1992 Act. He reiterated that cl 8 did not apply to ML594, and s 65(3) applied only if a lease is granted over the land after the commencement of the 1992 Act. Therefore, none of the conditions relating to ML594 can be treated as special purpose conditions. On the other hand, cl 8 applied to MLs 744, 1170, 1222 and 1226 and any special purpose conditions were void. However, the consents obtained were `appropriate' consents within s 65. His Honour rejected the appellant's submission that there must be reasonable concordance between the lease and the consent. His Honour concluded:
A development consent, by its nature, is to be considered as "appropriate" if it authorises, in general terms, that which is specifically authorised under the lease. The consents were given in response to applications to carry out mineral sands mining. The applications for consent were considered on the basis that mining leases would be, or had been, granted and that certain conditions of authority had been, or would be, imposed by mining leases. The dominant characterising purpose which can be commonly inferred from the applications, and the consequent consents, is mineral sands mining. That dominant purpose has been carried forward into the mining leases.
179 This conclusion is contested.
180 Talbot J found that all of the consent conditions relied on by the appellant were special purpose conditions within cl 15, schedule 1 of the 1992 Act, being conditions concerning the preparation of land for mining, mining methods or rehabilitation. Again, the appellant contests this conclusion.
181 Returning to s 74, his Honour considered the appellant's submission on ss (2). Talbot J noted that the excision leases were granted more than 5 years after the consents and that mining operations under the leases did not commence within 5 years of the grant of consents and therefore s 74(1) did not apply. However, his Honour found that mining operations `of the type subsequently authorised by the mining leases' did commence within 5 years after the consents were issued. The expression `mining operations under the lease' was to be regarded as referring to the operations described in the lease rather than operations carried out pursuant to the lease. The 1978 and 1979 consents covered the whole of the area of the excision leases and mining operations had continued throughout those areas, given the ongoing nature of mining to utilise areas progressively. The Court was satisfied that mining operations under the excised leases began within 5 years after the date on which the consents were issued and s 74(1) applied. The appellant challenges these findings.
182 His Honour dealt with the appellant's case under wildlife legislation. Although there are grounds of appeal relating to these issues, counsel for the appellant, Mr Robertson, did not press them on appeal as he conceded that they did not add to the appellant's case for relief. In addition no ground of appeal is pressed relating to his Honour's conclusion on the applicability of Part 5 of the EPA Act.
183 Talbot J then considered the appellant's claim of breach of conditions relating to ML594, given his earlier findings that those conditions remained in the 1978 consent, notwithstanding relief was constrained by s 74 of the 1992 Act. He first dealt with Condition 1, the aquifer condition, which provides:
The registered holder shall abide by the provisions of the Catchment Area By-Laws applying to the Catchment Area of the Tomago Sandbeds Water supply works and shall conduct operations in such a manner as not to cause any detrimental effect to the aquifer or the Board's assets. As there may be a time interval before some of these effects are recognised and assessed, the mining of the subject area shall be considered as a trial and for this reason the rate of mining shall be limited to the maximum rate of progress hereinafter stipulated.
184 Of this condition his Honour said:
The second sentence of the condition clearly recognises that there will be some impact on the aquifer as a consequence of the mining operation although the effects may not be recognised immediately. Accordingly it is only when the relevant detrimental effects are recognised and assessed that operations are to be controlled in accordance with the conditions.
and
By adopting the purposive approach, it is reasonable to construe condition 1 in the context of the nature of the development and mining authorised by the consent and the lease in conjunction with the authority and controls imposed by the Regulation 27(1) Permit. It would be a curious result if the effect of condition 1 was to prohibit any interference with the aquifer in circumstances where that interference has been specifically the subject of a permit by the authority relevantly concerned with the management and protection of the aquifer as a source of potable water supply.
185 His Honour proceeded to find that there was no evidence that established a direct detrimental impact upon the actual supply of water to any of the points presently used by the Board (my emphasis).
186 Accordingly, he found that there was no breach of the aquifer condition.
187 His Honour then referred to the pollution conditions, in particular condition 20, which provides:
The registered holder shall conduct tests of the dredge pond water as required by the Minister and the Board and shall so conduct operations that there is no increase above that existing naturally in the local ground water prior to mining operations in the saline, iron or other deleterious content of the water caused by the mining process or by the addition of any oils or greases or other substances which may be used either directly or indirectly in the mining process. Suspended solids in the pond water shall not exceed the limit set from time to time by the Minister and the Board. Furthermore no deleterious material including organic matter will be permitted to float on the surface of the pond.
188 In this regard his Honour said that:
The Court accepts the submission on behalf of the second and third respondents [RZM] that conditions 20 and 30 should be construed so that the prohibition contained in them does not apply to the necessary and inevitable consequences of a well managed dredging operation.
189 In dealing with an additional pollution condition (No 30) his Honour said:
Once again, the approach taken by the applicant in construing the effect of the conditions is to apply a constraint on the mining operation which would amount to a prohibition in direct conflict with the permissive nature of the instruments within which the conditions are found. The conditions must be read as being sufficiently broad to allow the operation to be undertaken. The narrow approach taken by the applicant is not, in the circumstances, justified.
190 Again, the judge found no breach of the pollution conditions.
191 Talbot J dealt briefly with discretion, acknowledging that it was unnecessary to do so since relief was to be refused. He made remarks which indicated that, for various reasons, he would not in any event have been minded to grant relief. These remarks are relied on by the respondents in opposition to any remitter to the Land and Environment Court.
Issues to be determined
192 It will be apparent from the above summary of his Honour's 68 page judgment that the Court was faced with many complex factual and legal issues. Therefore, it is unsurprising that numerous issues present themselves for consideration on the appeal. I will endeavour to deal with them in a logical sequential order, although this will not always be possible.
193 The first issue is the ambit of the development consent of 7 June 1978. Did it incorporate the contents of RZM's letter lodged with the development application or any other extrinsic documents? The answer to this question may have relevance to the issue of whether the 1978 consent extends to re-mining and/or deep mining and the construction to be given to condition 64. The question may also have implications for whether development was carried on without consent (s 76 EPA Act), when consent was required, or whether there was a breach of the conditions of ML594. Allied to these issues is whether the 1978 consent confined the depth of mining and the mining method. There is also an issue of the construction of conditions 1 and 17.
194 The next group of issues concern s 116 of the Mining Act 1973: whether there was a non-compliance with s 116(1)(a) regarding ML594 and whether RZM has immunity from the EPA Act. Also to be considered are the 1983 amendments to s 116, including ss (3A), and its effect.
195 The issues arising under the 1992 Mining Act focus mainly on the effect of the transitional provisions (cll 4 and 8) on the leases, and on the applicability and effect of ss 65 and 74.
196 It will also be necessary to examine the appellant's claim of breach of development consent conditions, breach of conditions in the mining leases and breach of the Regulation 27 permit. The last mentioned breaches arise from the leave granted under s 25 of the EOP Act. With regard to these alleged breaches, there is an argument as to whether, assuming breach, any relief could be granted.
197 Finally, depending on the answers to many of the above questions, it may be necessary to consider whether the case should be remitted to the Land and Environment Court for further hearing on discretion and on the form of any orders for reinstatement or rehabilitation of the subject land.
The ambit of the development consent of 7 June 1978
198 In construing a development consent it is only permissible to have regard to extrinsic material in limited circumstances.
199 As Hope J observed in Auburn Municipal Council v Szabo (1971) 67 LGRA 427, in determining what development a consent authorises, one looks primarily at the approval and construes it. The reason for this is that a consent is issued in rem and it would be inconvenient, to say the least, if one had to have regard to a series of documents to know what the consent authority intended to approve. The consent may incorporate another document if it does so expressly (not here relevant) or by necessary implication. In Szabo Hope J gave the example (at 434) of a council merely approving an application and no more. In such a case, the terms of the application would be incorporated by necessary implication. Szabo was applied by the Court of Appeal in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407 - 408.
200 When one examines the consent here in question, it is apparent that it is deficient in one respect only. It does not state the use which is being approved. The instrument of consent describes the location of the land the subject of the approval, and also refers to ML594, which had by that time been granted. It states that `the application to use the above land has been ... approved, subject to any conditions that may appear in Schedule 1'. Reading the 67 conditions leaves no doubt as to the nature of the development being approved, and by necessary implication, the description of the development `Mineral Sands Mine' in the development application is incorporated.
201 The submission of Mr Robertson goes further. He submits that the consent incorporates, by necessary implication, the letter from RZM to the Council dated 1 February 1978, which accompanied the formal development application form. This letter (and an enclosed plan) described the proposal in some detail. It is submitted that it is necessary to incorporate the contents of the letter, indeed also a subsequent letter to the PEC in support of obtaining its concurrence, in order to determine the scope of the consent. I do not agree. Leaving aside the necessary incorporation of the description of the development from the development application, as a mineral sands mine, nothing further is needed.
202 The consent and its conditions are sufficient to delineate what it was that the Council was approving. There is no justification or necessity to refer to the letter which accompanied the development application, or any other extrinsic documents, in order to construe the consent.
203 The next question is whether the consent included re-mining and deep mining. On behalf of RZM, Mr Walker SC submits that they are clearly species of the genus `mining'. Therefore, consent to a mineral sands mine includes re-mining and deep mining. Condition 64, set forth earlier (para 37) does not prohibit mining the land more than once providing RZM obtains the consent of the Minister and the Board. In that event, it may mine the land more than once. Mr Walker also calls condition 17 in aid of the inclusion of deep mining.
204 The appellant submits that Talbot J was wrong to find that condition 64 did no more than require that the Minister and the Board be given the opportunity to intervene and impose conditions on re-mining. Mr Robertson submits that on an application of the ordinary and natural rules of construction, the words in the condition plainly prohibit re-mining. The prohibition acknowledges that permission may be granted by third parties (the Minister and the Board) if re-mining is to take place, that is, mining more than once. The premise of the condition is that a further development consent may be necessary. Mr Robertson further submits that the consent gave no approval to deep mining. In this regard he also relies on condition 17 as well as condition 1, in addition to condition 64.
205 In general terms what occurred was that RZM carried out mining of the subject land. This operation has been referred to as shallow mining, to a depth of a maximum of minus RL3m. The mined area was then rehabilitated. RZM then re-mined the same area (from 1986 to 1990) and later (from August 1990) carried out deep-mining to a depth of up to 12m in excess of shallow mining.
206 The consent does not define any of the terms - shallow mining, re-mining or deep mining. It refers only to `mining'. However, the plain words of condition 64 provide that the leaseholder `shall mine the subject area once only'. This statement is then qualified, `unless' the consent to do so has been obtained from the nominated third parties. It is plain that the Council could not delegate its statutory role as consent authority to a third party if the effect of doing so is to fundamentally alter the ambit of the approval. Mining the land more than once would do this. It would offend the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 740 and 741.
207 In essence, the principle is that where a condition has the effect of significantly altering the development or to leave open the possibility that the development carried out in accordance with the condition will be significantly different to that applied for, then it is not a consent to the application. If the consent leaves for later decision an important aspect of the development which will alter it in a fundamental respect, the consent cannot finally determine the application. See in particular the judgments of Priestley JA and Clarke JA.
208 There have been many similar decisions in different Australian jurisdictions. The judgment of the Chief Justice refers to some, to which I would add further examples: Lend Lease Management Pty Ltd v Sydney City Council (1986) 68 LGRA 61 at 86 (Cripps J), Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1990) 70 LGRA 79 at 89 (Hemmings J), Malcolm v Newcastle City Council (1991) 73 LGRA 356 at 365 and Byron Shire Businesses for the Future Inc v Byron Council (1994) 84 LGERA 434 (Pearlman J).
209 The Mison principle was also discussed by the court in Scott v Wollongong City Council (1992) 75 LGRA 112 at 118. Samuels JA indicated that the principle of finality was designed to protect both the developer and the affected neighbourhood against a consent authority's reservation of power to alter the character of the development in some significant aspect, thereby changing the settled expectations of the consent already granted. Acknowledging that consents cannot always be expected to contain all ultimate detail, if a condition was 'ancillary to the core purpose' and would not alter the development in a fundamental respect as would lead to a significantly different consent to the granted, it was permissible. The dicta of Samuels JA was later specifically enacted in amendments to the Environmental Planning and Assessment Act 1979.
210 One underlying rationale for the principle is the diminishing of participation rights of objectors heard at the time of the consent. The principle also seeks to ensure that the decision taken to grant the consent is not undermined by later changes by the council, a nominated officer or third party, which may result in a development taking place which has been not assessed by the consent authority and which may have important environmental effects not relevant to be assessed at the time of granting the consent.
211 This does not mean that there is no room for flexibility or that questions of degree do not arise in some instances (Transport Action Group v Roads and Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598 at [117]). One example of flexibility is the opportunity for a developer to seek to amend a consent.
212 In my view, the words in condition 64 following 'once only' were beyond the power of the council to impose. It does not follow, in my opinion, that other conditions are similarly invalid or that the whole consent falls, see, for example, Randwick Municipal Council v Pacific-Seven Pty Ltd (1989) 69 LGRA 13. The invalid rider to condition 64 may be severed and the consent remain valid and operative. A condition (or part of one) may be severable where it is superimposed on a consent if it is incidental, trivial, unimportant or mere surplusage. If a condition is fundamental to the whole of the consent, it cannot be severed and the whole consent is invalid. That is not the situation here.
213 A prime example of the concept in practice is Kent City Council v Kingsway Investments (Kent) Ltd:Same v Kenworthy [1971] AC 72. Lord Reid [at 90] stated:
Suppose that a planning authority purports to impose a condition which has nothing whatever to do with planning considerations, but is only calculated to achieve some ulterior motive thought to be in the public interest. Clearly in my view the condition should be severed and the permission should stand. But suppose, on the other hand, that a condition, although invalid because ultra vires or unreasonable, limits the manner in which the land can be developed, then the condition would not be severable, for if it were simply struck out the result would be that the owner could do things on his land for which he never in fact obtained permission, and that would be contrary to the intention of the statute.
Lord Morris of Borth-y-Gest [at 102-103] stated that:
There might be cases where permission is granted and where some conditions, perhaps unimportant or perhaps incidental, are merely superimposed. In such cases if the conditions are held to be void the permission might be held to endure just as a tree might survive with one or two of its branches pruned or lopped off. It will be otherwise if some conditions is seen to be a part, so to speak, of the structure of the permission so that if the condition is hewed away the permission falls with it.
214 Lord Morris cited Hall & Co Ltd v Shoreham-by-Sea Urban District Council [1964] 1 WLR 240, where Wilmer LJ pointed to a contrast where one or two conditions might be held to be ultra vires and it being difficult to justify finding the whole permission failed, and where conditions are 'fundamental to the whole of the planning permission', resulting in the failure of the whole permission. In Hall Pearson LJ also differentiated between those conditions which are essential or at least important, and those which are trivial or at least unimportant.
215 Lord Upjohn stated that 'it is of cardinal importance to note that the invalid conditions went to the root of the planning permission itself and severely restricted the permission applied for' with respect to those cases where the whole permission failed.
216 Kingsway was affirmed by the Court of Appeal in Parramatta City Council v Kriticos & anor [1971] 1 NSWLR 140 where Asprey JA, (Holmes and Moffitt JJA agreeing) cited Lord Davies in Kingsway, noting that 'The true test is that if there is imposed on a permission an invalid condition which relates to matters fundamental to the development then in such a case the whole permission is or may be void. But if...the invalid condition relates not to the development itself but to matters preparatory or introductory to the permission or its final form, then the outline condition should rightly be held to have been granted free from condition'. The Court also approved the tree analogy of Lord Morris, as did Holland J in Greek Australian Finance Corporation Pty Ltd v Sydney City Council (1974) 29 LGRA 130.
217 In this case, the condition in question, being the second aspect of condition 64, is not fundamental nor does it go to the very root of the development consent. If, for example, the condition was that no mining at all was to occur without ministerial consent, then the condition would be invalid and inseverable, and the entire consent would fail as failure to gain the further consent would entirely negate the original consent. However, as the second component in condition 64 is concerned with placing a condition lacking in finality upon an exception to the condition that mining is to take place once only, it does not constitute an essential part of the structure of the consent. The severing of the second half of the condition does not result in the failure of the remainder of the consent. If the entirety of condition 64 was ultra vires then the consent would necessarily fall as it would remove a prohibition on re-mining and deep mining, which would alter the nature of the consent in a significant manner, allowing development for which permission was never obtained to take place. However, as it is only the exception to a limitation upon land use which is ultra vires, it does not affect the consent in such a manner as to render it invalid, or alter it to such a point that no consent can be regarded as given.
218 I do not accept that because the PEC approved the regime which had been worked out by the two statutory authorities, it was a valid exercise of power for the council to include the rider to condition 64. Plainly the council was the consent authority, not the PEC. I see nothing in IDO 23 which permits the PEC to require that the council impose a condition which offends the principle of finality and certainty. The concurrence power of the PEC does not assist.
219 The introductory words to the conditions in the development consent specify that the conditions are intended to protect the interests of the Board as they may be affected by mineral extraction from the Tomago sandbeds. Condition 1 is emphatic that the leaseholder must conduct its mining operations in such a manner as not to cause any detrimental effect on the aquifer. The condition stresses the experimental nature of the mining, `a trial', given the time interval between mining and the assessment of its effects. Accordingly, the `rate of mining' shall be limited to what is thereafter stipulated in the conditions. In my view, condition 1 assists the appellant's construction of condition 64.
220 Condition 17 is relied on by both sides. It is necessary to reproduce it in full. It provides:
(a) Mining shall be restricted in depth from the surface down to such depth below the surface as may be approved from time to time by the Minister and the Board.
(b) Mining shall not be permitted at levels below those stipulated by the Board related to areas defined by the Board. These levels will be determined by the Board having regard to the estimated highest groundwater level and capillary zone adopting such factor of safety as may be considered appropriate by the Board. Deposition of tailings shall be deemed to be included in the definition of mining.
The objective of this subclause is to ensure that the base of the tailings zone where a deposit of slimes, as hereinafter defined, may exist is at a level where this zone will be subject to wetting by rain percolation only, with the temporary exception of wetting caused by measures associated with active mining.
(c) Having regard to the experimental nature of this mining operation and the possible risks involved thereby, the registered holder will be required to commence mining operations in an area remote from the Board's pumping stations and close to the boundary of the catchment. Areas close to the Board's pumping stations are not to be mined until 12 months, or such other time as the Board considers appropriate, has elapsed from the commencement of mining in the remote area in order to permit a preliminary assessment to be made of the effects of such mining.
(d) The registered holder shall submit to the Minister and the Board at yearly intervals proposals defining the extent of mining desired both in respect to area and to depth during the following year. The proposals shall include plans and sections showing surface levels and depths of mining: depths of mining should be related to the datum nominated by the Minister and the Board. Furthermore the registered holder shall submit plans at not more than six monthly intervals defining the extent of mining proposed during the ensuing six months and these shall be approved by the Board before operations of the registered holder are extended into the area so defined.
(e) The above proposals submitted at yearly intervals shall include plans of the proposed future mining advances within the subject area, with the anticipated mining advance locations shown at 12 monthly intervals.
221 On its face condition 17(a) appears to allow mining to a depth approved from time to time by the Minister and the Board. It does not authorise `re-mining' as such, but it may assist RZM's argument with regard to deep mining. Condition 17(b) appears to provide that the Board will not permit mining below levels of the `highest groundwater level' with a `factor of safety'. Condition 17(c) (like condition 1) emphasises the experimental nature of the mining operation and its inherent risks for the Board's water supply. Condition 17(d) requires the leaseholder to submit to the Minister and the Board annual proposals for mining including mining depths.
222 Nothing in condition 17 is directed to re-mining of an area once it has been mined, particularly if it has been rehabilitated. Indeed, it says nothing specifically to re-mining of an area already mined under the consent. It may arguably be relevant to deep mining with the reference to mining to the depths approved from time to time by the Minister and the Board. However, as I have said, I do not see how the approval of deep mining can be delegated by the Council to a third party. It would make the consent relevantly uncertain given its ambit, and offend the Mison principle. Condition 17 may therefore be seen as requiring that RZM obtain further approvals for deep mining, outside the development consent.
223 One further observation may be made. Deep mining, in the circumstances in which it occurred from 1990 onwards, was an aspect of re-mining (but to a greater depth). Mining had already been carried out on the land and the deep mining constituted a re-mining of the land to a greater depth than had already taken place. The same reasoning with respect to condition 64 applies to condition 17.
224 In his judgment the Chief Justice has contended that as condition 64's lack of finality is `only one example of numerous such provisions which permeate the scheme', to declare it invalid due to the requirement for future approval, would operate to invalidate the entirety of the conditions. In my opinion, condition 64 is of a significantly different character to the examples mentioned where provision has been made for future control of aspects of the development. The conditions cited, such as condition 45(b), by which ministerial consent is required if the mining company should desire to keep a dog on the subject area, or condition 25 which requires that all fertilisers utilised are to be approved by the minister, are mere details which do not significantly alter the nature of the development. They fall within the degree of flexibility incorporated into the Mison principles by Scott v Wollongong and Transport Action Group v Roads and Traffic Authority. As discussed above, the rider in condition 64 fundamentally alters the character of the development and as such, cannot be included in the same category as administrative requirements lacking finality which can be regarded as ancillary to the core purpose of the consent discussed by Samuels JA in Scott v Wollongong.
225 The requirement for approval as found in condition 64 has the potential effect, as discussed above, of significantly altering the character of the development. It is not a requirement for review designed to ensure that the original character of the development is retained. The approval requirements in conditions 1, 20 and 30 however, do so operate. By providing for Ministerial review of the progress of the mining operation to ensure it is within the anticipated scope of effects (condition 1) and for the carrying out of tests relevant to pollution control (conditions 20 and 30), they strive to maintain the original nature of the development. Therefore, conditions 1, 20 and 30 fall within the category of administrative details ancillary to the core purpose of the development as previously discussed.
226 The discussion of the conditions thus far highlights the problems which arise when conditions negotiated by the Board and RZM for one purpose (the proposed mining lease) become transposed without amendment as conditions of development consent. This occurred because the PEC, when it issued its concurrence, did not address the need to `translate' the agreed `conditions of authority' into readily understandable conditions of a development consent under planning law. That having been said, the Court must do its best to interpret the conditions as they appear in the consent, although it should be emphasised that the task is undertaken in the context of planning law since it is a planning consent. The words should be given their primary and natural meaning if that is consistent with the use being permitted. A purposive construction may be adopted if the natural and ordinary meaning to be given to the words used does not give effect to the purpose of the legislation (Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423). In Corporate Affairs Commission (NSW) v Yuill [1991] HCA 28; (1991) 172 CLR 319 at 344 Gaudron J (albeit in a dissenting judgment) said of s 33 of the Interpretation Act 1987:
The circumstances, if any, in which it may be applied to deprive unambiguous words of their ordinary and grammatical meaning must be extremely rare: a direction to that effect is not authority for distilling the purpose or object of an Act in isolation from its terms or divorced from the means which the legislature has selected for its attainment.
227 In my view, there is no need for a purposive construction in the context of the subject development consent. The natural and ordinary (or grammatical) meaning is consistent with the purpose and objects of the legislation. In any event, a purposive approach is directed to the promotion of the purpose or object underlying the legislation. It is not apparent that the construction adopted by his Honour was in reality a purposive one since it did not take account of the purpose and object underlying the EPA Act.
228 It must be emphasised that consent to a `Mineral Sands Mine' does not mean unconstrained development of the use, unless the consent is unconditional. Here there were 67 detailed conditions imposed on the approval. In my opinion, condition 64 contains ordinary English words of plain meaning. As I have said, the words should be given their primary and natural meaning. That is, that the leaseholder is only permitted to mine the land once. This means that RZM cannot, under the development consent, mine the land, then carry out rehabilitation of it and later return and re-mine (including deep mining) that same land, unless it obtains a further development approval. Such a requirement is flagged by the rider to the condition. Condition 64 is quite capable, read in its ordinary and literal sense, of meaning what it says. Condition 1 assists this construction and condition 17 is neutral or capable of supporting arguments for and against.
229 In my opinion, neither re-mining of lands already mined, or deep mining of those same lands, in the circumstances in which they occurred, is permitted by the consent. Accordingly, and prima facie, RZM was in breach of the consent by breaching condition 64. Looked at in a different way, the deep mining and re-mining was mining without development consent, where such consent was required by the planning and mining regimes.
230 The various conditions relating to rehabilitation, eg. conditions 26, 28, 36 and 53 also lend support to the conclusion that the consent permitted the land to be mined once and then rehabilitated in a fashion required by the consent and likely to be enduring. These conditions are consistent only with a prohibition on re-mining.
231 Appropriate meaning and effect must be given to the use of the word `only' in condition 64 as explaining the word preceding it, `once'. The word `only' cannot simply be read out of the condition.
232 Talbot J noted that what was approved was a mineral sands mine. He said that it was a use to be carried on within the bounds of the land described by reference to the plan which accompanied the letter with the development application. On the construction of the consent which I have adopted, this is incorrect. What was conditionally approved was a mineral sands mine on the land specified in the consent itself. His Honour went on to say that the question of whether the consent authorised deep mining or re-mining did not arise. With respect to his Honour, I am unable to agree with this conclusion. The consent to carry out the use of a mineral sands mine on the subject land was conditioned. One of the conditions was condition 64. That condition clearly restricted the leaseholder to mining the area once and once only. The condition raises the issue of whether the consent authorised the leaseholder to mine the area more than once. Doing so obviously involves `re-mining' and also, in my view, deep mining if that is to be a second or subsequent mining of the land, as was here the case.
233 The 1979 development consent, which concerned what became ML744, did not include the same condition 17 in the 1978 consent. However, it did contain conditions 1 and 64. Accordingly, I would come to the same conclusion that it did not authorise re-mining or deep mining. The excision leases (1226, 1222 and 1170) were for areas excised from ML594 and no new development consents were issued with respect to them. Even if RZM could rely on the 1978 and 1979 consents, the same conclusion applies that they did not authorise re-mining or deep mining in the areas of the excision leases.
Enforcement of the consents and the 1973 Mining Act
234 The question of the enforcement of the development consents, particularly the 1978 consent, is bound up with the conflict and reconciliation of the mining and planning legislative regimes. Both the 1973 and the 1992 Mining Acts required all mining operations to have prior development consent under planning law. However, once a mining lease was granted, following a development approval, the conditions of the mining lease relating to the mining operation took precedence and ousted most of the conditions of the development consent.
235 Moreover, nothing in the EPA Act, or a planning instrument made under the Act, or a development consent, could prohibit a mining operation so long as operations under the mining lease commenced within 5 years of the issue of the development consent.
236 What was the operation of s 116 of the 1973 Act on the subject development consents? First, s 116(1) clearly had application since the consent of the Council was required under the IDO. Accordingly, before any mining lease was granted over the land, the Minister was obliged to require RZM to apply to the Council for development consent, to notify the Council and to give it the opportunity to suggest conditions to be included in the mining lease if granted. It is common ground that no such ministerial requirement was made with regard to ML594 and his Honour so found. Therefore, s 116(1) was not applied to ML594. Further, s 116 was not applied to the excision leases because again there was no s 116(1) requirement made.
237 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 so, 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.
238 If there was an immunity, it ceased if mining operations had not been commenced within 5 years of the issue of the development consent (s 116(7)). No mining commenced on the excision leases before June 1983 (nor could it) so no immunity would have extended to those areas, even assuming the application of s 116(4) in the first place.
239 Under s 116(3) and (3A) any prescribed condition imposed on a development consent was void. Prescribed conditions meant conditions concerning pre-mining preparation, mining methods and rehabilitation, s 116(9). Until 1983 this applied if the consent was obtained by a person applying for that consent pursuant to a s 116(1)(a) ministerial requirement. That precondition was removed by the insertion of ss (3A) in 1983. Subsection (3A) applied where the development consent was obtained prior to the grant of the lease but included leases where the consent had not been obtained pursuant to such a ministerial requirement.
240 Section 116(3) and (3A) did not apply to ML594, as his Honour correctly found, since the lease was granted before the consent. Talbot J found that ss (3A) applied to the excision leases because it was sufficient for any development consent to have been granted to mine, even if the mining proposed by the lease could not have been undertaken under the development consent. However, even assuming this to be correct, which I doubt, it cannot be said that the excision leases were `granted in accordance with s 116' and ss (3) and (3A) are not concerned with the granting of a lease, rather with the consequences of a grant.
241 As I have already mentioned, none of the MLs were granted under the 1992 Act. All were granted under the 1973 Act, although the application for ML594 was made under the 1906 Act. With the exception of ML744, the leases were not ones to which s 116 applied. Where a mining lease was granted without the opportunity for the planning consent authority to consider it under s 116(1), the conditions of a development consent and the planning legislation remain in force, see his Honour's finding at page 15 of the judgment.
242 As I have recounted, the application for ML594 was made under the 1906 Act. Section 116 of the 1973 Act did not apply as the provisions of Part 6 (including s 116) were expressly excluded (cl 17, 2nd schedule). Accordingly, it was not necessary to obtain a development consent first and before a mining lease was granted, where an application for a lease had been lodged before the commencement of the 1973 Act. Talbot J accepted this. It follows that ML594 cannot be said to have been granted in accordance with s 116(1), as his Honour found. Since the lease predated the consent, s 116(3) did not void any of the conditions of the 1978 consent. Again, this was his Honour's conclusion. Further, as his Honour said, s 116(4) could not apply to ML594 since it was a precondition that the applicant for mining obtain development consent.
243 It follows that from the grant of ML594 in May 1978 until the 1992 Mining Act commenced, the June 1978 development consent had full force and effect, as did the EPA Act.
244 However, his Honour went on to determine that the transitional provisions of the 1992 Mining Act and that Act itself saved ML594 from the EPA Act.
The effect of the transitional provisions and s 74 of the 1992 Act
245 The effect of his Honour's decision, as I read it, is to confer on ML594 a greater protection to the mining operation than existed under the 1973 Act even though s 116(4) did not apply to the mining lease prior to 1992. This cannot have been the intention of the 1992 legislation. Such a construction would mean that `legacy' mining under the 1906 Act would become immune from planning legislation in 1992 when it was not so immune in 1973. It would mean, as counsel for the appellant correctly points out, that a later mining lease granted for a different mining project, but covering part of an area of an earlier development consent (perhaps issued decades before), would not need to obtain development consent and would have no planning scrutiny imposed on it. This cannot have been intended and obtains no support from the passage of the 1992 Bill through the Parliament or in the Explanatory Notes.
246 Clause 8 of the transitional provisions has already been quoted, para 32. The clause contains a plain precondition to the application of ss 65 and 74 of the 1992 Act. That is, where a mining lease is `granted in accordance with section 116' of the 1973 Act. A grant of a lease can only be in accordance with s 116 when ss (1) is applicable. In my opinion, it had no application to ML594, or to the excision leases.
247 However, Talbot J concluded that any mining lease granted after a development consent, irrespective of any requirement under s 116(1)(a), was granted in accordance with s 116 for the purposes of ss 65 and 74 of the 1992 Act pursuant to cl 8 of the transitional provisions.
248 The other important transitional provision is cl 4(2). Mining Lease 594 was granted under the 1973 Act so, on its face, cl 4 applied and it is taken to be a mining lease granted under the 1992 Act. His Honour rejected the appellant's submission that cl 8 was an implied exception to the generality of cl 4. He found that cl 8 should not be read as limiting the effect of cl 4(2).
249 However, cl 8 is a special provision. Authority holds that a specific provision, which includes some limitation or restriction not found in a general provision, will usually prevail. See, for example, G F Heublein & Bro Inc v Continental Liqueurs Pty Ltd [1962] HCA 66; (1962) 109 CLR 153 at 161, The King v Wallis [1949] HCA 30; (1949) 78 CLR 529 and Patrick Stevedores Operations (No 2) v MUA (No 3) (1998) 195 CLR 1 at 61.
250 In my opinion, cl 8 provides a special regime for the application of ss 65 and 74 of the 1992 Act to leases granted under earlier mining statutes if they have been granted in accordance with s 116 of the 1973 Act. It is apparent why this is so. It is to ensure that these provisions did not apply to leases which were granted without prior planning scrutiny and development consent. On the other hand, it was also to ensure that mining leases which had the protection of s 116 of the 1973 Act, were equally protected by ss 65 and 74.
251 It follows that none of the leases (other than ML744) have been granted in accordance with s 116. By this finding, and giving the phrase its natural and ordinary meaning, I accept that `in accordance with' means `in conformity with', see Walker v Wilson [1991] HCA 8; (1991) 172 CLR 195 at 208.
252 Talbot J said that cl 8 must be given a meaning consistent with the intention expressed by the words. He continued:
If clause 8 is to be construed strictly, the result would be that ss 65 and 74 would apply only to a mining lease granted in complete agreement with s 116 ... or it requires compliance in every respect with the section ...
253 From the ensuing words used by his Honour it is apparent that he accepted that the use of the word `granted' in cl 8 created a difficulty for his preferred construction, as did the words `in accordance with'. His Honour resolved this by construing those words as meaning `in conformity with' or `consistently with' s 116.
254 His Honour continued:
It would not be inconsistent with the legislative scheme to accept any lease granted after a necessary land use consent had been given, irrespective of a requirement under s 116(1)(a), as being a lease granted in accordance with s 116 for the purpose of cl 8.
255 With respect to his Honour, these are departures from ordinary rules of construction. They depart from the plain meaning of the words, and impose an unneeded and unnecessary gloss on the words used in cl 8. Indeed, they appear to depart from the apparent intent which the words seek to achieve. In my opinion, his Honour's conclusions on cl 8 are in error. The transitional provisions, properly construed and applied, lead to the conclusion that ss 65 and 74 do not apply to ML594 or to the excision leases.
Section 65 of the 1992 Act
256 On the assumption that the transitional provisions can apply ss 65 and 74 to the mining leases, other than ML744, it is necessary to consider those provisions.
257 At the trial RZM argued that ss 65 and 74 provided a complete defence to any claim for breach of the development consents or breach of the EPA Act for failure to obtain consent where consent was necessary.
258 It was submitted by RZM that s 65 removed the conditions of the 1978 consent which related to mining methods and to the environmental performance of the operation and s 74 removed any obligation to comply with planning laws as far as current operations were concerned.
259 Section 65 only has effect in relation to mining leases granted under the 1992 Act. It cannot apply to leases granted under the 1973 Act unless by a deeming or transitional provision. Assuming such a deeming, it is apparent that no lease can be granted unless `an appropriate development consent' is in force. This must mean a development consent which is appropriate to the mining operation to be authorised by the proposed lease. If the development consent is not for the mining operation proposed to be authorised by the lease, then there is no `appropriate development consent' that is in force with respect to the land. In this circumstance s 65 does not apply.
260 Where an appropriate consent has been issued, any conditions relating to mining methods and rehabilitation are void and the consent is taken to be given free of such conditions.
261 Talbot J decided that s 65 did not apply to ML594 but applied to ML744 and to the excision leases. I agree with his Honour with respect to ML594. However, with regard to the other leases his Honour found that the development consents were `appropriate' and accordingly, the conditions relating to mining methods etc. were void. However, the development consent needs to be an `appropriate' development consent, not just any development consent for the use of the land for mining.
262 I accept the submission of the appellant that there needs to be some harmony or concordance between the subject development consent and the proposed mining lease for the former to be an `appropriate' consent. A development consent would be an inappropriate one if it did not reflect the mining operation included within the proposed mining lease. An appropriate development consent would be one which did so reflect the mining operation proposed in the lease application. The symmetry requires more than just a commonality of the taking of mineral sands or, to use his Honour's words, the `dominant characterising purpose which can be commonly inferred from the applications'.
263 Such a construction defeats the purpose and intent of s 65, which is to ensure that a specific mining operation is subject to planning scrutiny and consent before the grant of a mining lease with respect to it. For example, if the only commonality is that the consent and the mining lease relate to the same mineral, one could envisage significant inconsistencies in the quantity of the mineral to be extracted as between the development consent and the mining lease. The result could nullify the objective of planning scrutiny. Environmental impacts would obviously greatly differ. Further, a development consent to an underground mine could authorise an open cut mine or vice versa. The primary purpose of s 65 is to ensure that the objectives of planning law are achieved, including the right of the public to object, rather than thwarted.
264 It must be kept firmly in mind that s 65 acknowledges that a planning consent authority may refuse consent to a mining operation the subject of a proposed mining lease. In my opinion, there must be some reasonable congruence or consonance between the subject matter of the development consent and what is proposed for the mining lease in order that the former may be an appropriate development consent under s 65.
265 In this case the excision leases authorise deep mining and re-mining whereas, as I have found, the 1978 consent did not. Accordingly, it is not an appropriate consent to those leases.
266 Moreover, the leases were granted after mining activities had been completed under ML594 and the land had been rehabilitated. This provides another reason why the consent is not appropriate. The mining to which the consent related had been completed, the land rehabilitated and the relevant mining lease (ML594) surrendered in relation to the areas which became the excised leases.
267 The construction adopted by the trial judge could lead to different mining operations undertaken by different mining operators being enabled by a single development consent obtained on the basis of certain given environmental impacts. Such a possibility could not have been intended.
Section 74 of the 1992 Act
268 Turning to s 74, it will be seen that it applies to mining leases which have effect. For a mining lease to have `effect', it needs to have been granted where an appropriate development consent is in force (s 65). The transitional provisions did not apply ss 65 and 74 to leases granted under earlier Acts otherwise than in accordance with s 116 of the 1973 Act. It follows that the mining leases which have effect under s 74(1) are those which have been granted in accordance with s 65, and those granted in accordance with s 116 of the 1973 Act. Both of these categories require compliance with the planning regime as a condition to obtaining immunity from planning law.
269 While a mining lease has effect, it is immune from planning law in so far as it may operate to prevent the carrying on of mining operations. As his Honour said, s 74 has nothing to say about regulating the manner in which mining operations are carried out except when the effect is to prevent mining altogether.
270 The immunity is however subject to the proviso in ss (2). This provides that the immunity ceases if mining operations under a lease have not commenced within 5 years after the date of the development consent.
271 In so far as the facts of the case are concerned, since mining operations have ceased and are not proposed to resume, s 74 does not, in my view, prevent an order being made for rehabilitation. Such an order may have to be drafted so as not to prevent the leaseholder from continuing the present activities being carried on. But that would be a matter for further evidence (possibly) and the moulding of a suitable form of order.
272 I should turn to s 74(2), in case it be relevant. Assuming that his Honour was correct that ML594 was otherwise within ss 65 and 74, it is apparent that ss (2) was satisfied since mining operations began on that lease within 5 years of the consent.
273 The excision leases mostly relate to areas excised from ML594. They were granted between 1986 and 1990. No new development consents were obtained. His Honour held that the 1978 and 1979 development consents sufficed to support the new leases. The consents were to the use of the land for the purpose of obtaining minerals and related (in part) to the same land as the new leases. His Honour reasoned that s 116(1) did not apply because development consent was unnecessary since it had already been obtained.
274 In any event, Talbot J held that ss (3A) and (4) applied irrespective of whether consent was obtained pursuant to a requirement under s 116(1)(a). His Honour rejected the appellant's submission that it required a direct connection between the lease and the consent. His Honour found that the excision leases were granted in accordance with s 116 for the purposes of cl 8. Finally, his Honour found that s 74 applied to the leases because they continued to have effect when the 1992 Act came into force.
275 As I have said, his Honour's above findings are disputed and, it seems to me, with some legitimacy. I am unable to see how it can be concluded that the 1978 and 1979 development consents were referable to the excision leases granted many years later. But assuming that they can rely on the earlier consents, `mining operations under the lease(s)' (my emphasis) did not begin within 5 years after the date of the giving of the development consents, thus s 74(2) applies and no immunity is obtained under s 74(1). In my opinion, it would make a mockery of the legislative provisions to hold that because the nature of mining is a continuous process, RZM can rely on the commencement of operations under ML594 (a different lease) to comply with s 74(2) in relation to mining leases granted many years later and in respect of a different mining project.
276 In relation to the excision leases the position is simply this. Development consent was required for them but none was obtained. Since these leases were directed to re-mining and deep mining, they were of a different nature to the 1978 development consent, which I have held did not include those activities. Clearly since no appropriate development consent was in force for these leases in 1992, neither ss 65 nor 74 applied. Moreover, the mining operations under the leases had not begun within 5 years of the 1978 consent being granted. In my opinion, the transitional provisions did not apply ss 65 and 74 to those leases.
Breach of conditions of development consents
277 The development consent conditions which the appellant maintains have been breached are condition 1 (the aquifer condition), condition 20 and allied conditions (the pollution conditions) and the fauna conditions. However, as already stated, the appellant does not press breaches of the fauna conditions.
The aquifer condition
278 This condition (No 1) is to be found in the 1978 and 1979 development consents. It was also a condition of ML594 until 30 June 1995 and contained in ML744.
279 The plain and unambiguous words of the first sentence of condition 1 require RZM to conduct its operations so `as not to cause any detrimental effect on the aquifer'. There is evidence of significant detrimental impacts of mining activities on the aquifer prior to 1995. It is to be found in the findings of the consultants to the steering committee established in 1995 to investigate the situation. The detriment to the aquifer includes its partial removal, acidification and contamination with elevated levels of iron and arsenic, which would affect its use for potable water for a very lengthy period of time from the cessation of mining.
280 His Honour held that a purposive approach should be applied to construe the aquifer condition `in the context of the nature of the development and mining authorised ... '. He added that it would be a `curious result if the effect of condition 1 was to prohibit any interference with the aquifer in circumstances where the interference has been specifically' permitted by the Regulation 27 permit. This was a reference to the permit issued by the sixth respondent in 1995.
281 It is impermissible to construe a condition imposed in 1978 by reference to the granting of the permit in 1995. The Regulation 27 permit is irrelevant to ascertain the meaning of condition 1 of the 1978 consent. It must be recalled that in 1978 the Board was both manager and regulator of activities within the subject sandbeds, as well as the user of its potable waters. The sandbeds had been reserved for the purpose of water supply since 1916. The purpose of the conditions included in the 1978 consent was far more than simply to protect the Board's asset. For example, numerous conditions relate to protection of flora and fauna and to rehabilitation.
282 It is not permissible to construe condition 1 in the light of subsequent events, see AMP Society v Allan (1978) 52 ALJR 407. Nor is it permissible to read the condition down as his Honour appears to have done. His Honour was concerned with whether there was any evidence that established a direct detrimental impact upon the `actual supply of water to any of the points presently used by the Board'. He found that there was no such evidence. While this may have been literally correct, the reason that this may be so was the withdrawal by the Board from areas affected by contamination. However, the condition is not restricted to a direct detrimental effect on the actual supply of water to the Board. The condition states that the leaseholder shall not conduct operations so as to `cause any detrimental effect to the aquifer or the Board's assets' (my emphasis).
283 The condition protects both the aquifer and the Board's assets. His Honour appears only to have given effect to the latter and to read out the former to the extent that the actual water supply then presently used by the Board had not been detrimentally effected. The `detriment' in the condition clearly relates both to the aquifer and to the Board's assets.
284 I mentioned the reason why his Honour was able to find that there was no direct impact by way of detrimental effect on the actual supply of water to the Board. It was because the Board had to move its extraction points as RZM's mining operation proceeded so as to prevent a detrimental impact on the potable water supply for Newcastle. For example, pump station No 6 (north and south) had to be abandoned and decommissioned in 1994 due to the extremely high iron levels. It also appears from the evidence that pump station 22 will necessarily be abandoned. Further, the Board anticipates that the mining activities will ultimately lead to the abandoning of other pump stations (3, 4, 21 and 1). There is uncertainty about these because it is presently impossible to predict how long it will take for the elevated iron levels to decay to background. Clearly this could take a considerable period, possibly running into several decades. It is common ground that at least 20 years is involved.
285 Presently known iron concentrations are extremely high, coupled with arsenic concentrations, both well in excess of the NHMRC draft drinking water guidelines. What has occurred is the very thing that the aquifer condition, and other conditions of the 1978 consent, sought to avoid. The detrimental impact on the aquifer is not some minor and transient deleterious effect. It is dramatic and long lasting. RZM was in breach.
286 In my opinion, the words in condition 1 are plain and should be given their ordinary and natural meaning. The words used give effect to the purpose of the legislation. There is no ambiguity in them and the construction adopted by his Honour is not available. Indeed, I do not see how the construction favoured by his Honour was truly a purposive one. It did not promote the purpose or object underlying planning legislation.
The pollution condition
287 Condition 20 in the 1978 and 1979 consents is also to be found in the conditions of ML594 until 1995 and in ML744. Condition 20 does not appear in MLs 1170, 1222 and 1226, although other pollution conditions appear in those leases.
288 Condition 20 provides that the leaseholder shall conduct operations so that there is `no increase above that existing naturally in the local ground water prior to mining operations in the saline, iron or other deleterious content of the water caused by the mining process'.
289 His Honour accepted RZM's submission that the condition should be `construed so that the prohibition contained in them does not apply to the necessary and inevitable consequences of a well managed dredging operation'.
290 The obvious intent of condition 20 is that mining operations not cause any elevation in iron, or other deleterious substances, in the water in the aquifer above those naturally existing prior to mining. One may put to one side slight elevations not causing any short or long term effect on the quality of water in the aquifer. There is however no sanction in the plain and readily understandable words in condition 20 to read out of it any elevations which arise as the `inevitable consequences of a well managed dredging operation'. This is to write into the conditions words that are not there. The construction has the effect of severely cutting back the clear words of prohibition in the condition. Such a construction defeats the purpose of the condition and is unwarranted. Indeed, the construction has the effect of permitting the very thing the condition seeks to prohibit. It must not be forgotten that conditions of a development consent serve to protect the public interest and that breaches may be enforced by `any person' under s 123 of the EPA Act. It is not simply a decision to be made by the regulator.
291 In any event, I fail to see how what occurred, the oxidation leading to elevated iron and arsenic levels, can be said to be a naturally occurring process. What happened was a direct result of the mining operations, which are the antithesis of processes naturally occurring in the sandbed.
292 On a correct construction of conditions 1 and 20 in the 1978 and 1979 consents, RZM was in clear breach of both. The same conditions are included in ML594 (to 1995) and ML744. Section 5 of the 1992 Mining Act prohibits mining otherwise than in accordance with a mining lease in force in relation to the land. Mining has plainly occurred in breach of the conditions of these mining leases and consequently, in breach of the 1992 Act.
293 As mentioned, the sixth respondent issued a permit to the third respondent under cl 27 of the Hunter Water Board (Special Areas) Regulation 1989 on 9 August 1995. Condition 9 of the permit required RZM to observe all statutory provisions in force relating to the mining operations and to comply with the conditions of its relevant mining leases. Condition 9 would include compliance with relevant development consents. I have found that RZM breached the conditions of the development consents and the mining leases mentioned. This would amount to a breach of the permit and cl 25 of the Regulation.
The question of relief
294 The breaches of the development consents or the carrying on of development without consent (where consent is required) may result in relief being granted under s 124 of the EPA Act. Breaches of the mining leases are breaches of the Mining Act 1992 by way of s 5 and can only result in relief via s 25 of the EOP Act. Likewise any breach of the Reg 27 permit.
295 RZM submits that no relief may be granted under s 25 because there is no threat of any breach to be restrained. All mining has ceased and is not to be resumed.
296 The EOP Act was enacted in 1989. Its principal object was to supplement other laws which protect the environment from pollution (s 3(1)).
297 Section 25(1) provided that:
Any person may bring proceedings in the Land and Environment Court for an order to restrain a breach (or a threatened or apprehended breach) of this or any other Act, or any statutory rule under an Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment.
298 Subsection (3) required the leave of the Court to be given to any proceedings under the section. Talbot J granted such leave and this is not in issue on the appeal.
299 Subsection (5) provided:
If the Court is satisfied that a breach, or a threatened or apprehended breach, will, unless restrained by order of the Court, be committed or be likely to be committed, it may make such orders as it thinks fit to restrain the breach or other conduct of the person by whom the breach is committed or by whom the threatened or apprehended breach is likely to be committed.
300 The EOP Act has been repealed and s 25 has been re-enacted in a slightly different form in s 253 of the Protection of the Environment Operations Act 1999. Leave of the Court is no longer required.
301 Counsel for RZM draws attention to the difference in the wording between s 25(1) of the EOP Act and the broader words used in s 124 of the EPA Act, which includes `remedy'. Mr Walker submits that s 25 cannot apply because there is no breach which is causing or likely to cause harm to the environment. If there was a breach, it has long since ceased. It is also submitted that the section only permits injunctive orders to be made and not declaratory relief.
302 In Brown v EPA (1992) 78 LGERA 119 the Chief Judge of the Land and Environment Court, Pearlman J, considered a similar argument. Of it she said:
... I do not think the powers of the Court to make orders as it sees fit are constrained by s 25. The whole purpose of that section is to restrain statutory breaches which are causing or likely to cause harm to the environment. If this Court adopts a purposive interpretation (as s 33 of the Interpretation Act 1987 (NSW) requires) then the word "restrain" should not be interpreted in a technical and narrow sense, meaning only an order for injunctive relief. Rather, it must be interpreted in its wider and ordinary sense of "to prevent" or to "hold back". It follows from such an interpretation that the Court may make whatever orders it considers appropriate in order that the breach which is causing or likely to cause harm is discontinued. Those orders may be declarations, or injunctives, or orders for mandamus.
I am fortified in this approach to the construction of the section by the words used in subs (5) and the opening words of subs (6). Subsection (5), (which subs (6) does not limit) empowers the Court to "... make such orders as it thinks fit to restrain the breach or other conduct ...". Clearly "restrain" is here used in a wide not technical sense. It would be straining the language of subs (5) to hold that the only orders it permits are orders granting injunctive relief. (at 126)
303 I agree with her Honour and adopt her reasoning. Bearing in mind the objects of the EOP Act and the extension of standing to pursue relief where the breach (or threatened or apprehended) of any statute is causing or likely to cause harm to the environment, the provision should not be read narrowly but expansively. See Knight v F P Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205 and Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 581 - 582. Further, in the specific context of the Land and Environment Court, see Logwon Pty Ltd v Warringah Shire Council (1993) 33 NSWLR 13.
304 The fact that the removal of minerals has ceased, and is not threatened to resume, does not mean that s 25 is not able to be enlivened. Rehabilitation is part of the operations still being conducted on the land and the breach of conditions of the development consent, the mining leases and the Regulation 27 permit, are continuing until remedied.
305 The essence of the breach of condition 1 is the causing of a detrimental effect on the aquifer, namely the iron and arsenic contamination. The breach of condition 20 is the causing of an increase of iron in the water over and above that naturally existing. These breaches were caused by the mining operations of RZM. The breaches, that is the contamination of the aquifer, are continuing. They are the continuing consequences of the mining operation. The contamination of the aquifer is not being caused by the present activities of rehabilitation. The breaches, it seems to me, may be restrained under s 25 of the EOP Act and, in so far as they constitute breaches of the EPA Act, under s 124 of that statute.
306 In relation to the point taken by RZM, it should be noted that no such question relating to s 25 was raised before the Land and Environment Court. Accordingly, we do not have the benefit of his Honour's reasons. The time for the issue to be raised was on the application for leave, or at least before the trial ended. Notwithstanding that I assume Talbot J would have followed and applied Brown, there is, in my opinion, nothing in the point.
307 While I have found that RZM has been in and is in breach of planning law, of the conditions of development consent, and of mining without consent where it was required, there is a question as to whether any declaratory relief should be granted. Many of the breaches took place in the past and, to some extent, events have overtaken them. Moreover, no mining (only rehabilitation) is presently taking place, nor is any mining contemplated in the future. The same may be said of the breaches of the mining leases (s 5 of the Mining Act), as well as the Regulation 27 permit. However, what is important is the continuing consequence of the breaches.
308 In so far as any declarations are reliant on s 25 of the EOP Act, for reasons already mentioned, I believe that it is open to grant relief. Declarations are also open to be made under the EPA Act. There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer.
309 The real point of the litigation, as I understand the appellant, is to seek relief by way of mandatory order to rehabilitate the land in such a way as to cleanse the aquifer of iron and arsenic contamination, which is not being undertaken by the present rehabilitation being carried out by RZM.
310 The respondents argue that there is no purpose in remitting the matter to the Land and Environment Court. In support of this proposition they argue that by reason of s 74 of the Mining Act 1992 the Court has no power to make such an order. I have already rejected this submission. Any order made may not prevent the leaseholder from carrying on mining operations. The reason for this is that no mining operations are presently being carried on or are contemplated. Mining has been completed and has ceased. In any event, it will be up to the Court, should it decide in its discretion to make any order, to tailor such order to the law and to the particular circumstances disclosed by the evidence.
311 That the mining operations have ceased has been confirmed by the undertaking handed to the Court during the hearing of the appeal. There is now simply nothing to prevent. In any event, as far as the excision leases are concerned, because of the operation of s 74(2), subsection (1) has no operation.
312 The second reason advanced by the respondents is discretionary. It is submitted that having regard to his Honour's findings of the conduct of mining over a lengthy period of time and his remarks on discretion, there is no practical purpose in a remitter.
313 I am unimpressed with the respondents' arguments on discretion, and do not accept the submission that a remitter has no utility.
314 First, his Honour's comments on discretion were obiter and made on the basis that no relief was to be granted since no breaches had been found. His Honour's remarks are not determinative. The remitter will be held in a quite different context, acknowledging the breaches and the finding of the Court on appeal, and in the light of what has occurred since his Honour's judgment in 1996. In this latter respect, the parties have filed considerable evidence. The remitter will also be on the basis that no mining is presently proceeding nor intended in the future. To use the expression of the appellant's counsel, the caravan has moved on.
315 There is, in my opinion, good reason why the matter ought be remitted. The situation of damage to the sandbeds and the aquifer is a continuing one. It is important for the Land and Environment Court to hear evidence on whether or not, in the exercise of the discretion, a mandatory order for rehabilitation should be made. If it determines that an order should be made, the precise terms of that order will require further evidence and consideration, especially in respect of its framing. I am unpersuaded that it is necessary to hear counsel on the form of Short Minutes of Order to be made by the Court of Appeal.
Summary of principal conclusions
(a) Neither the 1978 nor 1979 development consents authorise re-mining or deep mining and development consent was required for such.
(b) The excision leases were not granted in accordance with s 116 of the Mining Act1973.
(c) Clause 8 of schedule 6 to the Mining Act 1992 limits the effect of cl 4(2) of that schedule.
(d) Sections 65 and 74 of the Mining Act 1992 do not apply to ML594 and the
excision leases.
(e) None of the conditions of the 1978 and 1979 development consents were void.
(f) RZM are in breach of the conditions of the development consents, in particular conditions 1 and 20, and the breach is continuing.
(g) RZM breached s 5 of the Mining Act 1992 in relation to ML594 (to 1995) and ML744.
(h) RZM breached the Regulation 27 permit.
Orders
316 I would propose that the following orders be made:
1. Appeal allowed with costs.
2. Set aside order of Talbot J dismissing the application.
3. Declare that mining activities carried out by the 2nd and 3rd respondents on the subject land have been and continue to be in breach of the 1978 and 1979 development consents.
4. Declare that no development consent under the EPA Act 1979 has been granted to permit re-mining or deep mining of the subject land where development consent is required.
5. Declare that mining by the 2nd and 3rd respondents of the subject land has been carried out in breach of s 5 of the Mining Act 1992 and the permit granted under Hunter Water Board (Special Areas) Regulation 1989.
6. Remit the proceedings to the Land and Environment Court to consider what further orders, if any, should be made requiring the 2nd and 3rd respondents to restore the subject land and, in particular, the aquifer.
LAST UPDATED: 19/03/2001
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