BARRICK AUSTRALIA LTD v WILLIAMS [2009] NSWCA 275

BARRICK AUSTRALIA LTD v WILLIAMS [2009] NSWCA 275

The Court allowed the appeal because, on the preferred construction of s 75W, any assessment whether a proposed modification falls within the scope of the section requires evaluative judgment about the project and its environmental consequences and is for the Minister, not the Court, to make. The Land and Environment Court therefore erred by itself deciding that the request was outside s 75W and granting declaratory relief on that basis.

Jurisdiction
Australia
Judgment Date
03 September 2009
Procedural Posture
Appeal From the Land and Environment Court Concerning Modification of a Development Approval Under S 75 W of the Environmental Planning and Assessment Act 1979 (nsw) / Court of Appeal Judgment
Outcome
Appeal allowed; judgment and orders of the Land and Environment Court set aside; amended summons dismissed.
Legal Topics
['development Control' "modification of Minister's Approval" 'jurisdictional Fact' 'judicial Review' 'environmental Assessment']
['environment and Planning' 'administrative Law' 'statutory Interpretation'] ['development Control' "modification of Minister's Approval" 'jurisdictional Fact' 'judicial Review' 'environmental Assessment']

Case Brief

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Procedural Posture

Appeal From the Land and Environment Court Concerning Modification of a Development Approval Under S 75 W of the Environmental Planning and Assessment Act 1979 (nsw) / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether a request for modification of approval under s 75W of the Environmental Planning and Assessment Act 1979 (NSW) was outside the scope of the section because it involved substantial changes to the approved project.' "Whether the existence and scope of a request within s 75W was a jurisdictional fact to be determined by the Court or a matter for the Minister's evaluative judgment." 'Whether the primary judge erred by assessing whether the proposed modification amounted to a radical transformation of the existing approval.' 'Whether s 75X of the Environmental Planning and Assessment Act 1979 (NSW) precluded relief of the kind granted below.']

Ratio Decidendi

The Court allowed the appeal because, on the preferred construction of s 75W, any assessment whether a proposed modification falls within the scope of the section requires evaluative judgment about the project and its environmental consequences and is for the Minister, not the Court, to make. The Land and Environment Court therefore erred by itself deciding that the request was outside s 75W and granting declaratory relief on that basis.

Court Disposition

Appeal allowed; judgment and orders of the Land and Environment Court set aside; amended summons dismissed.

Orders

  • ['Allow the appeal and set aside the judgment and orders of the Land and Environment Court made on 13 February 2009.' 'In lieu thereof order that the amended summons be dismissed.' 'Direct that if any party seeks a particular order as to costs in this Court, or in the Court below, it should file a notice of motion,...