Williams v NSW Minister for Planning (No 3) [2010] NSWLEC 204

Williams v NSW Minister for Planning (No 3) [2010] NSWLEC 204

Modification 7 was not invalid because the Minister's delegate considered the relevant statutory matters, including mine life and public interest, was not obliged to consider the cumulative effect of the E42 Modification 6 request, and no collateral purpose or uncertainty was established. Modification 8 was invalid because the Minister was required to consider the likely environmental impact of the proposed INCO cyanide destruction method, and the 1998 EIS in the Department's possession identified likely environmental impacts of that method that were not brought to the delegate's attention by the SEE or Department report; without considering that material impact, the delegate did not...

Jurisdiction
Australia
Judgment Date
15 October 2010
Procedural Posture
Judicial Review Challenge to Validity of Modifications to Development Consent / Judgment on Amended Summons
Outcome
Challenge to Modification 8 upheld; challenge to Modification 7 dismissed.
Legal Topics
['modification of Development Consent' 'mandatory Relevant Considerations' 'jurisdictional Fact' 'environmental Impacts' 'public Interest' 'collateral Purpose' 'ecologically Sustainable Development']
['environmental Planning Law' 'administrative Law' 'judicial Review'] ['modification of Development Consent' 'mandatory Relevant Considerations' 'jurisdictional Fact' 'environmental Impacts' 'public Interest' 'collateral Purpose' 'ecologically Sustainable Development']

Case Brief

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Procedural Posture

Judicial Review Challenge to Validity of Modifications to Development Consent / Judgment on Amended Summons

Legal Issues

  1. 1 ['Whether the Minister failed to consider the life of the mine when granting Modifications 7 and 8.' 'Whether the Minister failed to consider the public interest under s 79C(1)(e) and s 96(3) of the Environmental Planning and Assessment Act 1979.' 'Whether the Minister was required to consider cumulative impacts of Modifications 7 and 8 with the E42 Modification 6 proposal.' 'Whether the Minister gave proper regard to whether the consent as modified was substantially the same development as that originally granted under s 96(1A)(b).' 'Whether the decisions to grant Modifications 7 and 8 were motivated by a collateral purpose.' 'Whether Modifications 7 and 8 were uncertain by reason of condition 3.6 concerning rehabilitation.' 'Whether, for Modification 8, the Minister failed to properly consider the likely environmental impact and public interest consequences of the proposed INCO method of cyanide destruction.' 'Whether, for Modification 8, the Minister failed to properly consider the likely environmental impact and public interest consequences of clearing 40 hectares of land.' 'Whether, for Modification 8, the Minister failed to properly consider the likely environmental impact and public interest consequences of the proposed saline borefield.']

Ratio Decidendi

Modification 7 was not invalid because the Minister's delegate considered the relevant statutory matters, including mine life and public interest, was not obliged to consider the cumulative effect of the E42 Modification 6 request, and no collateral purpose or uncertainty was established. Modification 8 was invalid because the Minister was required to consider the likely environmental impact of the proposed INCO cyanide destruction method, and the 1998 EIS in the Department's possession identified likely environmental impacts of that method that were not brought to the delegate's attention by the SEE or Department report; without considering that material impact, the delegate did not...

Court Disposition

Challenge to Modification 8 upheld; challenge to Modification 7 dismissed.

Orders

  • ['Declaration that Modification 8 to development consent 14/98 granted by the first respondent to the second respondent on 28 August 2009 pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979 is invalid.' 'Otherwise the amended summons is dismissed.' "The respondents are to pay the applicant's...