Reported Decision : 113 LGERA 34 Land and Environment Court of New South Wales CITATION : Donnelly v Delta Gold Pty Ltd & Ors [2001] NSWLEC 55 APPLICANT: Donnelly PARTIES : RESPONDENTS: Delta Gold Pty Ltd & Ors. FILE NUMBER(S) : 40098 of 2000 CORAM: Bignold J KEY ISSUES: Jurisdiction :- allegations of breach of various Acts—Variation of Environmental Protection Licence. LEGISLATION CITED: Protection of the Environment Operations Act 1987 s 58, s 252, s 253 National Parks and Wildlife Act 1974, s 118D Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 at 157; Flaherty v Girgis (1985) 4 NSWLR 248; McRae v Coulton (1986) 7NSWLR 644; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71; CASES CITED: Port of Melbourne Authority v Anshun Pty Ltd 147 CLR 589; R v Alley Ex parte NSW Plumbers and Gasfitters Employer's Union (1981) 153 CLR 376; Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305; Sinclair v Graham (1984) 2 NSWLR 253; The Queen v Ludecke; Exparte Queensland Electricity Commission (1985) 159 CLR 178; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52; Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 DATES OF HEARING: 24/07/00-31/07/00, 01/08/00-04/08/00, 10/08/00, 29/01/01-30/01/01 DATE OF JUDGMENT: 03/23/2001 APPLICANT: Mr A Oshlack, agent SOLICITORS N/A 1ST TO FOURTH RESPONDENTS LEGAL REPRESENTATIVES: Mr Craig QC 5TH RESPONDENT Mr Leggatt, Barrister SOLICITORS FIRST TO FOURTH RESPONDENTS Phillips Fox FIFTH RESPONDENT Solicitor Environment Protection Authority JUDGMENT: IN THE LAND AND Matter No. 40098 of 2000 ENVIRONMENT COURT OF Coram: Bignold J. NEW SOUTH WALES 22 March 2001 ANDREW DONNELLY Applicant v DELTA GOLD PTY LTD First Respondent ROSS MINING N.L. Second Respondent CAPRICORNIA PROSPECTING PTY LTD Third Respondent TIMBARRA GOLD MINES PTY LTD Fourth Respondent ENVIRONMENT PROTECTION AUTHORITY Fifth Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. By his amended class 4 application filed on 12 July 2000, the Applicant, who is an authorised representative of the Wahlabul/Malerah Bandjalung Aboriginal Communities and has claimed, pursuant to the Native Title Act 1993 to be a traditional custodian of the land and waters covered by Mining Lease 1386 (upon which land a goldmine has in the past few years been established and operated by or on behalf of the First to Fourth Respondents but recently has been placed on a "care and maintenance" contingency basis) claims declaratory and injunctive relief against the Respondents as follows— (i.) a declaration that the variation of licence granted on 23 June 2000 by the Fifth Respondent to the Fourth Respondent pursuant to the Protection of the Environment Operations Act 1997 (PEO Act) is null and void for failing to comply with s 58(6) of that Act; (ii.) an injunction restraining the First, Second, Third and Fourth Respondents from carrying out activities pursuant to the Licence Variation; (iii.) a mandatory injunction for the removal of all infrastructure installed to carry out the activities pursuant to the Licence Variation and for the rehabilitation of the land affected by that infrastructure; (iv.) a declaration that the application made for the Licence Variation was invalid for failing to comply with the PEO Act s 59(2); (v.) a declaration that the carrying out of the activities purported to be authorised by the Licence Variation will involve a breach of the National Parks and Wildlife Act 1974 s 118D (NP&W Act); (vi.) a declaration that the First, Second, Third and Fourth Respondents have breached a number of conditions of Mining Lease 1386; and (vii.) various alternative remedies in respect of the alleged breaches of the Mining Lease conditions. 2. Except for some specific allegations of breaches by the Third Respondent of the conditions of Mining Lease 1386 (which had been granted to the Third Respondent in 1996 to permit gold mining on an area of some 400 ha of Crown land situate on Timbarra Plateau) the Applicant's claims are directed at a particular activity which has only very recently commenced to be undertaken on the site of Mining Lease 1386, namely the discharge to land by spray irrigation of treated waste waters currently stored in the raw water pond (part of the water storage infrastructure established at the Mine) being waste waters that had been generated by mining operations undertaken prior to June 2000, when mining operations comprising the mining and processing of ore ceased, and the mine was placed on a care and maintenance contingency basis. 3. Before commencing to such discharge of waste waters, the Fourth Respondent had sought and obtained from the Fifth Respondent a variation of its existing pollution control licence (granted to the Fourth Respondent on 1 January 1999) to authorise the installation and operation of additional discharge points within the site of Mining Lease 1386 for the discharge of waste waters via spray irrigation to (i) an area of forest land of some 10 ha situate in close proximity to the raw water pond; and (ii) an area of land comprising some 8 ha being cells 11 to 20 of the heap leach pad that had been established as part of the infrastructure of the mining operations (but had not yet been used for that purpose). 4. The Applicant's principal claim advanced at the hearing is that the spray irrigation of waste waters authorised by the Licence Variation is an unlawful activity because the Licence Variation is itself invalid by reason of the failure by the Fifth Respondent to call for, and to consider, public submissions, in alleged breach of the PEO Act, s 58(6), before it granted the Licence Variation on 23 June 2000. (Additionally, there is a discrete claim for invalidity of the Licence Variation based upon the formal content of the application which gave rise to the grant of the Licence Variation.) 5. Irrespective of whether the spray irrigation activity is lawful or unlawful in terms of the PEO Act, the Applicant further contends that the activity will involve a breach both of the NP&W Act s 118D and of a particular conditions of Mining Lease 1386. 6. The hearing of the proceedings was expedited soon after they were commenced on 30 June 2000, when on that day, after a brief contested hearing, I granted an interim injunction restraining the First, Second, Third and Fourth Respondents from acting upon the Licence Variation which had been granted to the Fourth Respondent by the Fifth Respondent on 23 June 2000, authorising (i) the installation of additional discharge points for the discharge of treated waste waters from the Gold Mine operation; and (ii) the disposal to land by spray irrigation method of treated waste waters stored at the mine. 7. On 7 July 2000, after a longer contested interlocutory hearing, I continued the interim injunction but expedited the final hearing of the class 4 application. The final hearing was conducted over a period of 11 days, commencing on 20 July 2000 and concluding on 10 August 2000 when judgment was reserved. 8. In his final address Senior Counsel, on behalf of the First to Fourth Respondents, urged me to discharge the interim injunction now that I had heard the entire case and was obviously far better placed than I had been when originally granting the interim injunction (and thereafter continuing it), in evaluating the merits of the competing cases. On that occasion, I declined to immediately discharge the interim injunction but indicated that I would revisit the question if I had not delivered final judgment by 18 August 2000, in recognition of the fact that in practical terms, spray irrigation of the treated waste waters would cease to be an available option to the First to Fourth Respondents with the onset of the wet season commencing at the end of Spring of 2000 with the predicted consequent environmental risk of the stormwater capacity of the storage facilities failing to cope with the stormwater runoff likely to be experienced at the mine during the upcoming wet season. On 23 August 2000, final judgment not having been delivered in the proceedings, I discharged the interim injunction from midnight 25 August 2000 for the reasons given in my judgment delivered on that day in the knowledge that the Respondents desired to forthwith commence the spray irrigation program authorised by the Licence Variation, and upon the basis of my impact that the Applicant's case presented at the final hearing did not justify either a continuance of the interim injunction, or the grant of a permanent injunction. 9. I should at the outset mention a number of matters that were raised prior to, or at the hearing, some of which do not otherwise feature in this judgment. Firstly, there is the fact that the Applicant, just before the commencement of the final hearing had sought to join the Minister for Mines who had opposed joinder on the ground that some, if not all of the relief claimed against the First to Fourth Respondents in respect of the alleged breaches of the conditions of Mining Lease 1386 (eg cancellation by the Court of the Mining Lease) was misconceived. In the result, the Minister was not joined without the Court being required to consider the question whether the relief claimed in respect of the alleged breaches of the conditions of the Mining Lease was misconceived, as had been contended on behalf of the Minister on the interlocutory hearing seeking his joinder. Although at the final hearing the Applicant maintained his claim that a number of the Mining Lease conditions had been breached, it was agreed between the parties that the question of the appropriate form and content of any relief, if the Applicant were ultimately held to have established relevant breaches, would need to be reserved for further and future consideration by the parties and by the Court. 10. Ultimately, the final hearing has been confined to the questions raised by the Applicant's claims as to whether there have been any relevant breaches of (i) the PEO Act (as alleged against the Fifth Respondent); (ii) the NP&W Act (as alleged against the First to Fourth Respondents); and (iii) the conditions of Mining Lease 1386 (as alleged against the Third Respondent) but wholly reserving consideration of the question of any appropriate relief in respect of any relevant breach that may be established. 11. Secondly, it is to be noted that at the hearing I granted leave to the Applicant to amend his Points of Claim to allege that in granting the Licence Variation, the Fifth Respondent failed to consider the impact of the Variation upon "aboriginal relics" within the meaning of the NP&W Act. Such leave was limited to enable the Applicant to allege a failure to consider that matter on the basis of the evidentiary materials that had already been filed in the proceedings. However, I gave the Fifth Respondent the opportunity to respond to the fresh allegation and this led to the production of a further affidavit by Mr Dutaillis, the Environment Protection Officer employed by the Fifth Respondent at its Armidale office, who as authorised delegate of the Fifth Respondent, had granted the Licence Variation. 12. Thirdly, it is to be noted that at the hearing the Applicant sought leave to further amend his Points of Claim to allege a breach of condition 100 of Mining Lease 1386 which required submission to the Department of Urban Affairs and Planning of a "final hazards analysis" before mining was commenced. (In support of this amendment, the Applicant had filed an affidavit sworn by Mr Derek Mullins, an officer of the Department of Urban Affairs and Planning stating that his searches of the Department's records had not revealed receipt of the "final hazards analysis"). 13. This particular application to amend was ultimately opposed by the First to Fourth Respondents because they claimed the need for more sufficient time to investigate the matter which not only arose belatedly in the course of the final hearing, but was belated in a more fundamental sense—inasmuch as condition 100 in terms, required the submission of the final hazards analysis "before mining was commenced" in circumstances where not only had mining been commenced and been undertaken throughout 1999 but where, at the time these proceedings were commenced, mining production had already been suspended. In the event, I refused leave to amend but only on the condition that the First to Fourth Respondents undertook not to raise any "Anshun" estoppel (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589) by way of defence to any future claim that the Applicant might choose to bring in respect of the alleged breach of condition 100 of the Mining Lease. The Respondents gave the Court the required undertaking. 14. Fourthly, I should note that the Applicant was not legally represented in the proceeding but instead, was represented by Mr Oshlack, a non-lawyer, whom he had appointed to act as his agent pursuant to the Land and Environment Court Act 1979 s 63. Mr Oshlack has so acted, and is also so acting for the Applicant and/or other persons in the other proceedings pending in the Court that have brought against the operators of the Timbarra Goldmine. I mention this matter because, notwithstanding Mr Oshlack's extensive practical litigation experience with this Court (in recent years he has frequently appeared as a litigant in person or as an authorised agent for others) and his obvious dedication to his appointed task, he is not a trained lawyer and in consequence, he has not been able to meaningfully participate in the legal debate on what has emerged as a fundamental legal question in respect of the alleged breach by the Fifth Respondent of the PEO Act s 58(6) namely what is the true nature of the present proceedings based upon that allegation and what is the true nature and scope of the Court's jurisdiction and adjudicative role in respect of that allegation. 15. In respect of this all important question, all Respondents have submitted that the duty cast upon the Fifth Respondent by s 58(6) did not involve a jurisdictional fact with the consequence that the Court's jurisdiction and role in the present proceedings was limited to the "judicial review" of the Fifth Respondent's decision to grant the Licence Variation without first seeking and considering public submissions, with the consequence that the merits of that decision are not examinable by this Court in the proceedings. 16. Such an understanding of the Court's role in the proceedings was also reflected in the submissions ultimately advanced on behalf of the Applicant at the final hearing but I fear in innocent ignorance of the legal distinction between judicial review adjudication and jurisdictional fact jurisdiction. Notwithstanding this feature of the case, it must also be noted that both the Applicant and the First to Fourth Respondents had adduced a large body of expert evidence at the hearing, which I admitted provisionally and subject to ultimate relevance (such ruling being necessitated by the objection raised by the Fifth Respondent as to the admissibility of the expert evidence that was adduced by the Applicant). In respect of this objection, the parties agreed in the course that I ultimately adopted at the hearing, namely to leave the ultimate adjudication on the objection to the final judgment in the case, which would necessarily decide the true nature of the Court's adjudicative function in the proceedings. 17. Obviously most, if not all, of the expert evidence provisionally admitted into evidence, simply would not be relevant (save for any question of discretion) if the Court's jurisdiction and adjudicative role were limited to that of judicially reviewing the decision of the Fifth Respondent to grant the Licence Variation, rather than that of determining for itself, on the basis of all the evidence whether the Fifth Respondent, in making that decision, had breached the obligation imposed by the PEO Act, s 58(6) to invite and to consider public submissions. 18. I must hereafter return to determine this all important question but firstly, I should pause to examine the juridical basis for each of the Applicant's several claims, and the correspondingly available jurisdiction vested in the Court to adjudicate upon them. 19. Finally, I should mention the fact that on 16 January 2001, the Applicant filed a Notice of Motion seeking inter alia leave for the Applicant to reopen his case to enable him to adduce evidence that the First to Fourth Respondents "had breached the Licence Variation". The Motion also claimed an injunction restraining the First to Fourth Respondents from carrying out the spray irrigation activity pursuant to the Licence Variation. The Vacation Judge adjourned the Motion to 29 January 2001 to be heard by the trial Judge. The Applicant's Motion which was resisted by all Respondents was heard on 29 and 30 January 2001 when judgment was reserved. In reserving judgment, I informed the parties that obviously I would not deliver my reserved judgment on the final hearing until I had delivered judgment on the Applicant's Motion to re-open the case but that if the Motion failed, I would contemporaneously give final judgment in the proceedings. THE JURISDICTIONAL BASIS FOR THE APPLICANT'S CLAIMS AND THE COURT'S JURISDICTION TO DETERMINE THEM 21. As I have already mentioned, the Applicant alleges breaches of three separate legal regimes, namely breach of specific provisions of (i) the PEO Act; (ii) the NP&W Act; and (iii) Mining Lease 1386. 22. I propose to separately consider each of the relevant allegations of breach of these statutory provisions and to identify the source of the Applicant's legal entitlement to claim redress in respect of such breaches, within the Court's jurisdiction. Alleged breaches of The PEO Act 23. The principal alleged breach is that committed by the Fifth Respondent in granting the Licence Variation, without having invited and considered public submissions, before it varied the licence. In this respect, s 58, which deals with the subject of "variation of licences", provides as follows: 58 Variation of licences (1) The appropriate regulatory authority may vary a licence (including the conditions of a licence). (2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition. (3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. (4) A licence may be varied at any time during its currency, including on its being transferred to another person. (5) A licence is varied by notice in writing given to the holder of the licence. (6) If: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979, the appropriate regulatory authority is to invite and consider public submissions before it varies the licence. 24. It is not in dispute that in the present case there was no invitation given for the making of public submissions and there was no consideration of public submissions before the Fifth Respondent granted the Licence Variation. Nor is it in dispute that the proposed variation had not been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979 (EP&A Act). 25. Accordingly, the sole issue in dispute concerning the alleged breach of the PEO Act, s 58(6) is whether "the variation of the licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence". The Applicant's case that the variation of the licence will have such an effect is strongly resisted by all of the Respondents. 26. As I have earlier mentioned, this issue raises the question whether the fact in issue (being the fact referred to in the PEO Act, s 58(6)(a)) is a "jurisdictional fact" which would require determination by this Court on the basis of all of the evidence, or whether it is a fact that is to be determined by the regulatory authority (in this case, by the Fifth Respondent) subject however to such determination being examinable by the Court in its judicial review jurisdiction. 27. Whereas I shall consider this question in greater detail later in these reasons, it is important to note even at this stage that considered from the viewpoint of available jurisdiction, this Court is vested with jurisdiction (i) to determine the question whether there has been a "breach of the Act" by virtue of the provisions of s 252 of the PEO Act (see also s 20(1)(ci) of the Land and Environment Court Act 1979); and (ii) to judicially review the decision of the Fifth Respondent to grant the Licence Variation—by virtue of the Land and Environment Court Act 1979, s 20(2)(a), s 20(2)(b), and 20(2)(c). However, although the Court's jurisdiction includes judicial review, if it is held that the proceedings properly invoke the jurisdiction to determine whether there is a breach of the Act, and that involves a jurisdictional fact, then that jurisdiction, rather than the judicial review jurisdiction, is the jurisdiction that is to be exercised in the case. As will later be shown, the vesting in this Court of such a comprehensive (and exclusive) jurisdiction is, in my judgment, itself an important factor in seeking the answer to the question posed. 28. Section 252 of the PEO Act is one of two sections contained in the Act, Pt 8.4 which is headed, "Civil proceedings to remedy or restrain breaches of Act or harm to environment". 29. Section 252 deals with a breach of the PEO Act and s 253 deals with a breach of "any other Act or statutory rule made thereunder". 30. Section 252 is in the following terms: (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act or the regulations. (2) Any such proceedings may be brought whether or not proceedings have been instituted for an offence against this Act or the regulations. (3) Any such proceedings may be brought whether or not any right of the person has been or may be infringed by or as a consequence of the breach. (4) Any such proceedings may be brought by a person on the person's own behalf or on behalf of another person (with their consent), or of a body corporate or unincorporate (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (5) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (6) If the Court is satisfied that a breach has been committed or that a breach will, unless restrained by order of the Court, be committed, it may make such orders as it thinks fit to remedy or restrain the breach. (7) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence. (8) In this section: breach includes a threatened or apprehended breach. 31. As earlier mentioned, the Applicant relies upon an alternative ground for challenging the validity of the Licence Variation, namely that the application for that variation was not properly made as is required by s 59(2) of the PEO Act, inasmuch as the common seal of the Fourth Respondent was not affixed to the application. 32. Section 59(2) states: An application for the variation of a licence may be made only by or with the consent in writing of the holder of the licence. 33. According to the undisputed documentary evidence, the relevant application (made in the form apparently approved by the Fifth Respondent) was submitted to the Fifth Respondent at its Armidale Office undercover of the letter dated 17 May 2000 from the Second Respondent, signed by Mr Marshall Lee, that Company's Environmental Manager. According to the application form Mr Lee signed it "as a person authorised by the licensee to sign this application form". The application form had noted that the current licensee was Timbara Gold Mines Pty Ltd (the fourth Respondent) which according to the pleadings, is a wholly owned subsidiary of the second Respondent. 34. Accordingly, two issues are raised by this particular claim— (i.) was the application for Licence Variation made by or with the written consent of the Licence holder (the Fourth Respondent)? (ii.) if not so made, does that fact invalidate the Licence Variation? Alleged breach of the NP&W Act 35. The Applicant alleges that the carrying out of the spray irrigation activity will involve a breach of the NP&W Act, s 118D. That section provides as follows: (1) A person must not, by an act or an omission, do anything that causes damage to any habitat (other than a critical habitat) of a threatened species, population or ecological community if the person knows that the land concerned is habitat of that kind. Penalty: 1,000 penalty units or imprisonment for 1 year or both. (2) It is a defence to a prosecution for an offence against this section if the accused proves that the act constituting the offence: (a) was authorised to be done, and was done in accordance with, a licence granted under this Act or under Part 6 of the Threatened Species Conservation Act 1995, or (a1) was the subject of a certificate issued under section 95(2) of the Threatened Species Conservation Act 1995, or (b) was essential for the carrying out of: (i) development in accordance with a development consent within the meaning of the Environmental Planning and Assessment Act 1979, or (ii) an activity, whether by a determining authority or pursuant to an approval of a determining authority within the meaning of Part 5 of that Act if the determining authority has complied with the Part, or (c) was authorised to be done by or under Part 2 of the Rural Fires Act 1997, the State Emergency and Rescue Management Act 1989 or the State Emergency Service Act 1989 and was reasonably necessary in order to avoid a threat to life or property. (3) If the provisions of any other Act or law or of any instrument made under any other Act or law authorise or require anything to be done that would constitute an offence under this section: (a) this section prevails (except in relation to a matter referred to in subsection (2) (b) or (c), and (b) a person is not to be convicted of an offence against the other Act, law or instrument because of the person's failure to comply with the other Act, law or instrument if compliance with the other Act, law or instrument would constitute an offence under this section. 36. The terms "critical habitat" and "threatened species, population or ecological community" are defined by s 5(1) of the Act with the meanings ascribed by the Threatened Species Conservation Act 1995. 37. The Applicant alleges that the activity comprising the spray irrigation of waste waters authorised by the Licence Variation will significantly affect the habitat of threatened and endangered species, and hence will involve a breach of s 118D of the Act. 38. There are two obvious sources of jurisdiction vested in this Court relevant to this particular claim made by the Applicant—(i) the PEO Act s 253; and (ii) the NP&W Act, s 176A—see also the Land and Environment Court Act 1979, s 20(1)(cg) and (ci). 39. Section 253 of the PEO Act provides as follows: (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 any other Act, or any statutory rule under any other Act, if the breach (or the threatened or apprehended breach) is causing or is likely to cause harm to the environment. (2) Any such proceedings may be brought whether or not any right of that person has been or may be infringed by or as a consequence of the breach (or the threatened or apprehended breach). (3) A person (other than the EPA or a member of the staff of the EPA) who brings any such proceedings is required to give a copy of the application to the EPA as soon as practicable after the application is made. The EPA is entitled to become a party to those proceedings. (4) 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. (5) Without limiting the powers of the Court under this section, an order under this section may suspend any environment protection licence. 40. The NP&W Act, s 176A provides as follows: (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on the person's own behalf or on behalf of the person and other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. Alleged breaches of conditions of Mining Lease 1386 41. The Applicant founds his claim to relief in respect of alleged breaches by the Third Respondent of various obligations imposed by conditions of Mining Lease 1386, upon the PEO Act s 253. Although a breach of the Mining Lease conditions does not, per se, fall within the scope of the PEO Act s 253 (because the Mining Lease is not "an Act or statutory rule"), such a breach of the conditions arguably involves a breach of the Mining Act 1992 vide s 73(1), s 125(1)(b) and s 374A, and hence, such a breach would fall within the scope and ambit of the PEO Act, s 253. 42. The allegations of breach of the Mining Lease conditions concern conditions 32, 91, 101 and 102 of Mining Lease 1386 granted by the Minister for Mineral Resources to the Third Respondent by Deed dated 9 April 1996 (Exhibit E/1) which by cl 4 incorporates specified conditions "as conditions and provisions of the lease" and binds the leaseholder to "observe, fulfil and perform" the same, subject to the proviso that if the leaseholder at any time during the term of the demise— (i) fails to fulfil or contravenes the covenants and conditions herein contained— this lease may be cancelled by the Minister by instrument in writing…. " 43. The relevant conditions of Mining Lease 1386 are in the following terms: 32. The lease holder must provide and maintain efficient means to prevent contaminated waters discharging or escaping from the subject area onto surrounding areas. 91. The lease holder shall ensure that all designs and works associated with the construction of the heap leach pads, the liquid storage and storm storage ponds (including methods and materials for lining) are carried out in accordance with professionally recognised engineering standards and practices appropriate for their construction and that such works are carried out under the supervision and control of a person or organisation with recognised experience in the field whose qualifications and experience are recognised by the Institute of Engineers, Australia. 101. The lease holder shall carry out an appropriate Community Liaison Programme in respect of major developments at the site. 102.The lease holder must ensure that the total storm storage capacity within the intermediate liquor storage, the pregnant liquor storage, the barren liquor storage and storm ponds is not less than 140 ML. ALLEGED BREACH OF PEO ACT, S 58(6)—A JURISDICTIONAL FACT? 44. As I have earlier mentioned, the Applicant, in his final address, mounted his challenge of the Fifth Respondent's decision to grant the Licence Variation without first inviting and considering public submissions, upon the ground that the decision was "manifestly unreasonable" insofar as it was founded upon an assessment that the Licence Variation would not authorise "a significant increase in the environmental impact of the activity authorised or controlled by the licence". As the address was developed, it also alleged that the decision-maker had not considered relevant matters, eg whether aboriginal relics would be adversely affected by the spray irrigation activity. 45. Thus, the Applicant's final address was only suggestive of a challenge which was entirely based upon conventional grounds of judicial review of administrative action as discussed, for example in the oft cited judgment of the High Court of Australia in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 46. However so to understand the Applicant's final address does not necessarily mean that the Applicant is to be taken as having abandoned his case as formulated in his amended class 4 application filed on 12 July 2000 as pleaded in his amended points of claim filed on the same day. As so formulated and pleaded, the Applicant's case was not founded upon a claim seeking the judicial review of the Fifth Respondent's decision to grant the Licence Variation, but rather, was founded upon an alleged breach of statutory duty by virtue of an allegation that the Licence Variation will have a significant impact upon the environment. In this respect, it should be noted that the Respondents, in their final addresses in the case, addressed the Applicant's claims on the alternate bases of the Court's adjudicative function—(i) the judicial review of the fifth Respondent's decision; and (ii) the Court, determining for itself, whether there had been a breach by the fifth Respondent of its duty under the PEO Act, s 58(6)). 47. Despite this uncertain state of affairs concerning the disparity between the Applicant's case as pleaded and the case as presented at the hearing it nonetheless remains the Court's duty to determine the precise nature of the Court's adjudicative function in respect of the Applicant's claims, recognising "…that within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessing executive and administrative powers exercise them only in accordance with the laws that govern their exercise: per Gaudron J in Enfield City Corp v Development Assessment Commission (2000) 199 CLR 135 at 157. 48. I have already tentatively suggested that this question is substantially answered by virtue of the plenary nature of the relevant jurisdiction exclusively vested in the Court that I have earlier noted, and most especially, the jurisdiction that is conferred by the PEO Act, s 252 in the express terms of "restraining and remedying a breach on threatened breach of the Act". 49. Although all Respondents have submitted that the fact whether a Licence Variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" is not a jurisdictional fact, the question was not satisfactorily explored in argument principally because the Applicant was not legally equipped to mount any competing argument. Nonetheless, the Court must answer the question, despite the absence of competing argument. 50. Ultimately, the answer to the question depends upon the proper construction of the PEO Act s 58(6). That this is so is made very clear by the judgment of Chief Justice Spigelman in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 102 LGERA 52, (a case involving a challenge to the validity of a development consent granted for the extension of the Goldmine established on ML 1386) where at p 60, the Chief Justice propounds as the solvent to the relevant question: Whether or not a particular finding of fact is jurisdictional in the requisite sense, depends upon the proper construction of the factual reference in the particular statutory formulation in which it appears. 51. The Chief Justice elaborates upon this statement in the following extended passage at 60/61: The issue of jurisdictional fact turns, and turns only, on the proper construction of the statute: see, eg, Ex parte Redgrave ; Re Bennett (1945 46 SR (NSW) 122 at 125; 63 WN (NSW) 31 at 33. The Parliament can make any fact a jurisdictional fact, in the relevant sense: that it must exist in fact (objectivity) and that the legislature intends that the absence or presence of the fact will invalidate action under the statute (essentiality): see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 72 ALJR 841 at 859-861; 153 ALR 490 at 515-517. Objectivity and essentiality are two interrelated elements in the determination of whether a factual reference in a statutory formulation is a jurisdictional fact in the relevant sense. They are interrelated because indicators of essentiality will often suggest objectivity. Any statutory formulation which contains a factual reference must be construed so as to determine the meaning of the words chosen by Parliament, having regard to the context of that statutory formulation and the purpose or object underlying the legislation. There is nothing special about the task of statutory construction with regard to the determination of the issue whether the factual reference is a jurisdictional fact. All the normal rules of statutory construction apply. The academic literature which describes jurisdictional fact as some kind of doctrine is, in my opinion, misconceived. The appellation jurisdictional fact is a convenient way of expressing a conclusion—the result of a process of statutory construction. Where the process of construction leads to the conclusion that Parliament intended that the factual reference can only be satisfied by the actual existence (or non-existence) of the fact or facts, then the rule of law requires a court with a judicial review jurisdiction to give effect to that intention by inquiry into the existence of the fact or facts. Where the process of construction leads to the conclusion that Parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact then, either as a rule of the law of statutory interpretation as to the intent of Parliament, or as the application of a rule of the common law to the exercise of a statutory power—it is not necessary to determine which, for present purposes—a court with a judicial review jurisdiction will inquire into the reasonableness of the decision by the primary decision-maker (in the Wednesbury sense—Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), but not itself determine the actual existence or non-existence of the relevant facts. 52. Thereafter, in his judgment, the Chief Justice examines many of the decided cases that have dealt with the question whether a factual reference in a statute is, or is not, a jurisdictional fact, in all of which cases the court is concerned to give effect to the legislative intention which (in the absence of express legislative pronouncement) is "to be extracted from implications found in inferences to be drawn from the language it has used": per Sir Frederick Jordan in Ex Parte Mullen; Re Hood (1935) 35 SR (NSW) 289 at 298. 53. In the course of his judgment, in Timbarra the Chief Justice derives from the decided cases a number of "important and usually determinative, indications of parliamentary intention", the first one of which, noted at 62, is— whether the relevant factual reference occurs in the statutory formulation of a power to be exercised by the primary decision-maker or, in some other way, necessarily arises in the course of the consideration by that decision-maker in the exercise of such a power (where) such a factual reference is unlikely to be a jurisdictional fact (whereas) the conclusion is likely to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. 54. In my respectful opinion, it is clear from the statutory language that the relevant factual reference in the PEO Act s 58(6) is "preliminary or ancillary to the exercise of the statutory power" within the Chief Justice's dictum. 55. Thus, upon a proper construction, it is clear that s 58(1) confers the power to vary a licence (s 58(2) relevantly extending that power) with subsections (3), (4) and (5) respectively providing (i) the circumstances in which the variation power may be exercised (ii) when it may be exercised; and (iii) how it may be exercised. 56. Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions "before it varies the licence". This duty so formulated is clearly a matter that is "preliminary or ancillary to" the exercise of the statutory power of variation that is conferred by s 58(1). 57. In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the "essentiality" element identified in Chief Justice's judgment in Timbarra. 58. It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the "objectivity" element identified in the Chief Justice's judgment in Timbarra. 59. There is, of course, considerable legislative precedent in the field of environmental planning law for the existence of such a duty, operating by way of preliminary limitation or condition precedent, to the exercise of a statutory power eg EP&A Act 1979 s 79 in relation to a consent authority's consideration of a development application for designated development cf the Local Government Act 1993 s 114 to s 118 (now repealed) and the Local Government Act 1919 s 312A and s 342ZA (now repealed). In respect of the now repealed Local Government Act 1919 s 312A there is existing authority in this Court that it is for this Court to determine for itself whether "the enjoyment of land may be detrimentally affected by the erection of a proposed building" being the fact that enlivened the duty to give public notice of the building application: see Parkes and Spencer v Rastogi and Newcastle City Council (1992) 78 LGERA 71 (per Pearlman CJ). 60. Notwithstanding the foregoing conclusions, it must be realistically acknowledged that the question of the precise nature of this Court's adjudicative function in respect of proceedings challenging the validity of administrative action taken under the State's environmental planning and protection laws continues to provoke lively debate in the cases. Thus, just a few months after the unanimous decision of the Court of Appeal in Timbarra, the Court of Appeal in Transport Action Group Against Motorways Inc v Roads and Traffic Authority (1999) 104 LGERA 133 encountered the argument that a decision by a determining authority pursuant to the EP&A Act s 112(4)(b)(i) to "modify" a proposed activity involved (and I now quote from the President's judgment at 151)— a jurisdictional fact cf Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55. The challenge provoked a contention by the respondents that the challenged decisions were valid because it was open to the RTA to conclude that the committed works were modifications within the ambit of s 112(4)(b)(i): cf Londish v Knox Grammar School (1997) 97 LGERA 1. 61. In that case, the majority of the Court (Mason P and Sheller JA) found it unnecessary to decide whether the EP&A Act s 112(4)(b)(i) involved a jurisdictional fact (see at 151 per Mason P and at 171 and 172 per Sheller JA) although Sheller JA expressed the view at 172 that the task of deciding the various matters arising under the EP&A Act s 112 including the power to modify the proposed activity, were "entrusted to the determining authority" and "(I)f it acted bona fide and reasonably, its decisions could not be challenged, even if some other body on the same material might legitimately have reached a different view". 62. The dissenting judgment of Fitzgerald JA contains a lengthy discussion of the question—see at p 191 to p 193 in which his Honour concludes that the opinions of the RTA and the Minister were "not conclusive" and it was for the Court to determine for itself whether the modifications relevantly "reduced the detrimental effects on the environment of the proposal'. 63. In Timbarra, the respondent had unsuccessfully sought to defend the appeal by relying upon the Court of Appeal's decision in Londish (see at 59) with the Chief Justice holding at p 60 "that it is not the law that the determination of whether or not something answers a statutory description cannot be a jurisdictional fact". The Chief Justice went on to observe (at 60) that Londish had decided that the relevant factual finding in the statutory context there involved (being the characterisation for the purposes of a planning instrument of an approved development) was not a finding of jurisdictional fact. 64. If, immediately following the Timbarra decision, the revival in the Transport Action Group case of the decision in Londish in support of an argument confining this Court's adjudicative role to the judicial review of challenged administrative action, indicates or suggests that the question may not yet have been finally resolved (either in this Court or in the Court of Appeal) then the more recent decision of the High Court of Australia in the Enfield City Corporation case is likely to prove of far more decisive significance in the resolution of any continuing doubt or uncertainty: cf the Article "Jurisdictional Fact: A Dilemma for the Courts" by Linda Pearson (2000) 17E PLJ 453. In particular, it is unlikely, in my respectful opinion, that the decision in Londish can be taken to have survived the effect of the decision in Enfield. Curiously, Londish was not cited in the argument in Enfield. Nor is it referred to in the Court's judgments. However, Bentham v Kiama Municipal Council (1986) 59LGRA 94, a decision of this Court in 1986 that was later approved in Londish is cited in the argument in Enfield in support of the proposition that "(I)n dealing with issues of fact and degree in planning matters, the court should give considerable weight to the decision of the specialist planning body"— see at 138, but is not referred to in the High Court's judgments which did not approve the proposition advanced in reliance upon Bentham. 65. In Enfield, the High Court, reversing the decision of the Full Court of the South Australian Supreme Court, unanimously held that whether a proposed development was "non-complying" development within the meaning of the South Australian Development Act 1993, s 35(3) was a jurisdictional fact which the trial Court (the Supreme Court) must determine upon the evidence before it, "in whatever form the proceeding in the Supreme Court had been cast": see at 151. Earlier, the joint judgment had stated at 148: The term jurisdictional fact (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome. 66. In the course of their reasons in the joint judgment, Gleeson CJ, Gummow, Kirby and Hayne JJ observed (at 144) that the jurisdiction of the Supreme Court that had been invoked by the plaintiff was not "judicial review of administrative action by the medium of the prerogative writs or statutory regimes such as that provided by the Administrative Decisions (Judicial Review) Act 1977 (Cth)…but its jurisdiction as a court of equity to grant equitable relief to restrain apprehended breaches of the law and to declare rights and obligations in respect thereto". 67. In my respectful opinion, this discriminating analysis of the true nature of the jurisdiction that was invoked by the plaintiff in Enfield (challenging the validity of the grant of development consent) provides a particularly apt and illuminating appreciation of this Court's specialist and exclusive jurisdiction "to restrain or remedy a breach" (or apprehended breach) of planning or environmental laws that is conferred by the EP&A Act s 123; the PEO Act s 252 and s 253; and the NP&W Act, s 176A. (There are several other sources of comparable jurisdiction expressly conferred upon this Court in similar statutory language). 68. In my respectful opinion, when proceedings brought in this Court (such as the present proceedings) challenging the validity of administrative actions, are truly and rightly conceived to be claims "to restrain or remedy a breach or threatened breach of relevant laws", the adjudication that is required of the Court, must invariably and inevitably be whether or not there has been established a relevant breach or threatened breach of the law, as alleged in the proceedings, and where objective facts are crucially or essentially involved in the alleged breach (such as in the present case) this Court obviously must determine for itself the existence or non-existence of such facts, on the basis of the available evidence. In such circumstances, the conclusion must invariably be that the facts are jurisdictional facts. 69. Indeed, it is the very creation, in the same statute, pursuant to which the impugned administrative action is taken, of specialist jurisdiction vested in the Court to restrain or remedy a "breach" (or threatened breach) of the statute that is, in my opinion, a powerful legislative indication that it is intended that this Court must determine for itself, whether or not there has been a relevant breach of the statute, rather than to leave that question to the decision of the very administrative agency whose action (or inaction) is the basis for the allegation of breach of the statute . There is something fundamentally anomalous and unsatisfying in the view that the question of whether an administrative agency has relevantly breached the law, is to be answered according to the opinion held by that agency (subject albeit to the judicial review of that opinion). 70. For all of the foregoing reasons, I hold that the question whether the Licence Variation in the present case will relevantly "authorise a significant increase in the environmental impact of the authorised activity" is a question concerning a jurisdictional fact which this Court must determine for itself, on the basis of all relevant evidence. It follows that in the present case it is not the Court's duty to judicially review the reasonableness of the decision of the Fifth Respondent on the question although, as will later be shown, evidence concerning that decision, and the decision itself, may be relevant to, and carry weight in, the Court's determination of the relevant question: see City of Enfield at p 154 - p 156 in the joint judgment of the Court and at p 158 - p 159 per Gaudron J in her separate judgment, which passages are recited hereafter. HAS THE APPLICANT ESTABLISHED A BREACH OF THE PEO ACT S 58(6)? 71. In the present case, the Applicant alleges a breach by the Fifth Respondent of s 58(6) by virtue of its failure to invite and to consider, public submissions, before granting the Licence Variation. As I have earlier noted, it is common ground that the Fifth Respondent did not invite or consider public submissions before it varied the Licence. In order to prove the alleged breach, the Applicant must prove that the Licence Variation "will authorise a significant increase in the environmental effect of the activity authorised or controlled by the licence". (It is not in contest that the proposed variation has not been the subject of environmental assessment and public consultation under the EP&A Act). 72. I have already held that the requirement for inviting and considering public submissions operates in the nature of a condition precedent to the exercise of the statutory power of variation. However, that requirement is not a universal requirement—rather, it only operates where the two circumstances respectively defined in par (a) and par (b) of s 58(6) both apply in a given case. 73. By way of preliminary observation, it may be noted that no equivalent requirement operated under the statutory licensing regime repealed and replaced by the PEO Act, which in s 3 contains express policy objects for promoting "community involvement in environment protection" (vide par (b) and par (c)) which objects no doubt informed the content of s 58(6)—see also s 45(l). 74. The statutory power of variation conferred by s 58(1) is expressed in wide terms "may vary a licence (including the conditions of a licence)". Subclause (2) further widens the power. It is obvious from the width of the power that there may be a variation, which by virtue of its nature and effect eg imposing of a condition requiring environmental monitoring of the existing activity (see s 66(1)), clearly falls outside the ambit of the circumstances detailed in par (a), and (b), of s 58(6) and accordingly such a variation may be granted without the possibility of the requirement for inviting and considering public submissions being enlivened. Clearly the present case does not involve such a variation. Rather, it involves a variation which permits additional discharge points for the disposal of treated wastewaters that have been produced by the mining operation, and accordingly at least potentially, it is possible that such a variation may "authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" within the meaning of s 58(6)(a). 75. I have earlier stated that it is common ground that the Licence Variation was not preceded by "any environmental assessment and public consultation" under the EP&A Act within the meaning of s 58(6)(b). Notwithstanding this fact, it is useful to consider the effect of this statutory circumstance, in the delineation of the scope and ambit of the statutory duty. 76. The existence of the twin circumstances respectively outlined in s 58(6)(a) and (b) which in combination, enliven the statutory duty, indicates a legislative recognition of the possibility that a variation of a licence "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence" but nonetheless, there will be no need for inviting and considering public submissions because the variation has already been the subject of "environmental assessment and public consultation under the EP&A Act". This last mentioned environmental assessment and public consultation is not likely to be an adventitious circumstance, but rather is likely to be the direct result of the operation of the mutually relevant provisions of EP&A Act and the PEO Act that operate in respect of the concept of "integrated development" as defined by the EP&A Act, s 91 which includes "development that…requires development consent and one or more of the following approvals" (which "approvals" expressly include environmental protection licences granted under the PEO Act)—see also the EP&A Act, s 91A and the PEO Act, s 50 and 51. 77. In passing, I should note that the reason why the spray irrigation of treated wastewaters authorised by the Licence Variation had not been subjected to environmental assessment and public consultation under the EP&A Act was not explored in these proceedings, although I hasten to add that no such enquiry was necessary for the adjudication on the issues raised by the present proceedings. However, having regard to the relevant history concerning (i) the grant of Mining Lease 1386 at a time when there was no environmental planning instrument in force in respect of the land the subject of that Mining Lease; and (ii) the subsequent coming into force, very soon after the grant of the Mining Lease, of the Tenterfield Local Environmental Plan 1996 before the mine had been developed and could thereby have acquired the status of an "existing use" in terms of the EP&A Act (both these facts are referred to as the "background facts" in the Chief Justice's judgment in the Timbarra Protection Inc case—see at p 55 and p 56) and having regard to the now current relevant planning laws, it is not difficult to speculate that the only valid reason why the activity authorised by the Licence Variation was not subjected to environmental assessment and public consultation under the EP&A Act is to be found in the operation of the Mining Act 1992, s 74(1) which is in the following terms: (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. 78. But for this provision, the use of the 10 ha of forested area for the receival of spray irrigation of the treated wastewaters generated by the Goldmine would clearly constitute "development" within the meaning of the EP&A Act requiring the grant of development consent. 79. It is now necessary to consider some textual features of the statutory circumstance outlined in s 58(6)(a), namely (i) the meaning of the expressions "significant increase" and "environmental impact" which are not defined terms in the PEO Act (either individually or as a compound expression); and (ii) the scope and ambit of the concept of "an activity" being "authorised or controlled by the licence". 80. As to (i), the absence of definition means that the expressions are (subject to context) to be given their natural meanings as ordinary English words and phrases. These natural meanings are reinforced by contextual considerations which include the fact that the PEO Act is principally concerned with "the protection, restoration and enhancement of the environment" (vide s 3(a)) and the fact that other legislation, principally the EP&A Act, seeks to advance this same or similar object. The expressions "significant increase" and "environmental impact" where employed by the EP&A Act have acquired settled meanings in the past 20 years and those meanings would appear to be perfectly appropriate to be attributed to the same expressions, where they are employed by the PEO Act. The Legislature clearly appears to have adopted this alignment position, for example, by enacting s 45(i) which requires consideration of a "licence application" made under the PEO Act (which expression includes an application for variation of a licence) to include "any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the EP&A Act". 81. As to (ii), a consideration of the context of the PEO Act, Pt 3 indicates that it is environment protection licences that "authorise the carrying out of scheduled development work" or "scheduled activities" at premises (s 43(a) and (b)) or "control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from such activity" (s 43(d)). See also s 47, s 48 and s 49 which create offences of carrying out scheduled development work or scheduled activities without being the "holder of a licence that authorises the activity to be carried out". 82. "Scheduled activities" (both "premises-based" and "not premises-based") are respectively specified in Schedule 1 to the Act. (The word "activity" is defined in the Act's Dictionary as meaning "an industrial, agricultural or commercial activity or an activity of any other nature whatever (including the keeping of a substance or an animal)". 83. Part 1 of Schedule 1 enumerates a large number of "activities premises-based" including "Mines" which is defined in the manner hereinafter recited. 84. In respect of "such premises-based activities", it is necessary to note that the PEO Act, s 56(1) requires the licence "to specify the premises to which it applies" and subsection (2) provides as follows: The premises so specified are to be the whole of the premises at which the activities authorised or controlled by the licence (and ancillary activities) are carried on. 85. As will presently be shown, the Licence Variation, the subject of the present proceedings, was granted in respect of what may be described as a "deemed licence", ie a licence in force under the statutory regime that was repealed and replaced by the PEO Act and which is given continuing force under the PEO Act in a manner shortly to be mentioned. 86. As earlier mentioned, the only issue in dispute concerning the alleged breach of s 58(6) is whether the Licence Variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence". This is essentially a factual question requiring a factual determination based upon the totality of relevant evidence. 87. Although there may be other methods or approaches which could be employed in order to make that requisite factual determination, the method or approach that I propose to adopt is to make a preliminary comparison between— (a.) the environmental impact of the activity as authorised or controlled by the licence without regard to the proposed variation; and (b.) the environmental impact of the activity authorised or controlled by the licence as it is proposed to be varied with a view to determining the ultimate question whether the "variation will authorise a significant increase in the environmental impact of the authorised or controlled activity". In my formulation I have referred to "the proposed variation", but I could just have aptly referred to it as "the variation" cf par (a) and par (b) of s 58(6). The future tense "will authorise" in its statutory context also indicates that the requisite fact is to be found to exist (or not to exist) in a prospective sense. 88. The method I propose to employ is virtually the same as the method that is prescribed by cl 1 of Pt 2 of Schedule 3 of the Environmental Planning and Assessment Regulation 1994 for determining whether "alterations or additions" are "designated development", for the purposes of the EP&A Act, Clause 1 providing as follows: Is there a significant increase in the environmental impacts of the total development? 1 Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development. 89. Speaking of the duty imposed by cl 1 upon the consent authority (and upon this Court in determining a class 1 proceeding by way of appeal against the consent authority's determination), the Chief Judge held in Westport Marina Development Pty Ltd v Concord Council (2000) 109LGERA 451 at 457 that (T)he task….was to form the opinion that the proposed development did not significantly increase the environmental impacts of the total development compared with the existing development. 90. In my judgment, s 58(6)(a) of the PEO Act, imposes, by necessary implication (or perhaps directly by virtue of the word "increase"), the requirement to make a comparison between (i) the environmental impact of the activity authorised or controlled by the licence as proposed to be varied, and (ii) the environmental impact of the activity authorised or controlled and the Licence, without regard to that variation, in order to determine whether the variation "will authorise a significant increase in the environmental impact of the activity" etc. 91. Before considering these comparative environmental impacts as a prelude to making the requisite factual finding, it is first necessary to determine with some precision the true nature of each of the following:- (i.) the deemed Licence; (ii.) the activity that is authorised or controlled by that Licence; and (iii.) the activity that is authorised or controlled by that Licence as varied. (i) The " deemed " Licence 92. The Licence (considered without regard to the Licence Variation) is relevantly Licence No 005771 granted to the Fourth Respondent on 6 January 1999 in respect of "the premises comprising Mining Lease 1386". That licence was granted pursuant to the Pollution Control Act 1970 (which was subsequently repealed by the PEO Act when it came into force on 1 July 1999 but by virtue of cl 4 of Pt 3 of Schedule 5 to the PEO Act, the licence "is taken to be a licence issued under this Act, subject to the regulations under this Schedule"). Existing licences are the subject of the provisions made in Pt 2 of the Protection of the Environment Operations (Savings and Transitional) Regulation 1998 cl 6(1) providing that an existing licence "is taken to be an environmental protection licence issued under the Act except as provided by this Part." 93. In order to determine the precise nature of the "deemed" licence thus created and "the activity" that it "authorises" or "controls", it is necessary to consider Chapter 3 of the PEO Act which contains provisions dealing with environment protection licences. 94. Section 43 specifies that licences "may be issued for the following purposes: (a) to authorise the carrying out of scheduled development work at any premises, as required under section 47, (b) to authorise the carrying out of scheduled activities at any premises, as required under section 48, (c) to authorise the carrying out of scheduled activities not related to premises, as required under section 49, (d) to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122. 95. Section 48 applies to "scheduled activities where Schedule 1 indicates that a licence is required for premises at which the activity is carried on". 96. Schedule 1, Pt 1 is headed "Activities premises-based" and includes the following: Mines that mine, process or handle minerals (being minerals within the meaning of the Mining Act 1992 other than coal) and that disturb or will disturb a total surface area of more than 4 hectares of land associated with a mining lease or mineral claim or subject to a section 8 notice under the Mining Act 1992 by: (1) clearing or excavating, or (2) constructing dams, ponds, drains, roads, railways or conveyors, or (3) storing or depositing overburden, ore or its products or tailings. 97. Section 50 deals with a licence that relates to "controlled development" (being defined as "development that cannot be carried out without development consent under the EP&A Act") and provides that a licence must not be granted unless development consent has been granted for the controlled activity. The section does not apply if development consent is not necessary because of an "existing use" entitlement. 98. Section 51 deals with a licence in relation to "integrated development" (being a term defined by the EP&A Act s 91). 99. Licence 005771 was granted pursuant to the Pollution Control Act 1970 which contained in Pt 3A a similar statutory regime for the granting of licences to that now contained in Chapter 3 of PEO Act. In particular, the Pollution Control Act, s 17A provided for the making of a licence application "in respect of one or more of the following: (a) scheduled premises or scheduled equipment within the meaning of the Clean Air Act 1961, (b) the pollution of waters within the meaning of the Clean Waters Act 1970, (c) a drain which discharges or is likely to be used for discharging any pollutants into any classified waters within the meaning of the Clean Waters Act 1970, (d) scheduled premises within the meaning of the Noise Control Act 1975. 100. The definition of "scheduled premises" contained in the Clean Air Act 1961 included the following: any premises: (a) used for any of the facilities or works for the time being prescribed by clause 1 of Schedule 1" 101. Clause 1 of Schedule 1 prescribed a number of facilities or works, including the following: Grinding and milling works, being works in which more than 50 tonnes per annum of agricultural crop products, uncured rubber, rock, ores, minerals or chemicals are processed by grinding, milling or separating into different sizes by sieving, air elutriation or in any other manner except by wet screening or wet sieving. 102. Similarly, the Noise Control Act defined "scheduled premises" as "any premises of a class for the time being described in the Schedule". Item 1 of the Schedule included the following: Any premises: (c) having a site area of 20,000 square metres or more that is available to be worked, and any part of which is used for extraction, mining, excavating, dredging or quarrying of rock, coal, metalliferous ores, precious metals, sand, soil, clay, mud or any material of a similar nature, whether at the surface or underground, for the purpose of winning the material for sale or for use at other premises. 103. The premises to which Licence No 005771 was expressed to apply were described as "The Timbarra Gold Mine - Mining Lease 1386". 104. The Licence does not compendiously define "the activity" it authorises or controls other than by its reference to "the Gold Mine" which is said to comprise the relevant "premises". 105. The Licence stipulates the conditions upon which the mining operations may be undertaken. These conditions (which pursuant to the Pollution Control Act 1970, s 17BA, address "the whole of the pollution of all kinds caused or likely to be caused by the activity") include conditions authorising the discharge of polluted water from five nominated discharge points, subject to compliance with specified environmental criteria. (ii) The Activity authorised or controlled by the deemed Licence 106. Having regard to (i) the scope and content of Licence 005771 and (ii) the provisions of Chapter 3 of the PEO Act relating to environment protection licences, I am of the opinion that that deemed Licence is an environment protection licence that "authorises the carrying out of scheduled activities at premises" within the meaning of the PEO Act, s 43(b) and s 48, namely mining (comprising the gold mine situate at premises comprising Mining Lease 1386). Additionally and conformably to the PEO Act, s 44(2), the deemed Licence, also by virtue of its provisions relating to the designated discharge points for water pollutants, "regulates all forms of pollution (including water pollution) resulting from those activities", section 44(2) providing as follows: Licences with respect to scheduled development work or scheduled activities may regulate all forms of pollution (including water pollution) resulting from that work or those activities. 107. Having regard to the relevant provisions of the PEO Act (including those creating the offence of carrying out scheduled activities without the requisite licence) I think it clear that when the Act refers to a "scheduled activity", it is concerned with the specified activity as a category or genus rather than with the several individual and detailed elements or processes which may be involved or employed in the carrying out of that activity. So understood, the relevant category or genus of the activity authorised by the deemed Licence in the present case, is the Gold Mine established on Mining Lease 1386. 108. This finding reflects the established approach to the categorisation of "the purposes for which land may be developed" that has long been adopted in respect of town planning and environmental planning legislation eg see Royal Agricultural Society v Sydney City Council (1987) 61 LGRA 305 where McHugh JA surveys the earlier court decisions on this subject. Similarly, in Environment Protection Authority v Cleary Bros (Bombo) Pty Ltd (1996) 92 LGERA 101, principles or approaches derived from the planning law were applied to questions raised by the terms and conditions of a licence granted under the Pollution Control Act 1970. 109. The analogy with the well established town planning principles for categorising developments, is in my judgment, entirely apt in the present case, and is reinforced by the striking similarity between the enumerated "scheduled activities" contained in Schedule 1 to the PEO Act and the enumerated categories or descriptions of "designated development" contained in the Environmental Planning and Assessment Regulation 1994, Schedule 3 (now repealed and re-enacted in the Environmental Planning and Assessment Regulation 2000). 110. Accordingly and for all the foregoing reasons, I hold that it is that identified activity (ie the Goldmine established on Mining Lease 1386) that is the relevant activity that is "authorised or controlled by the Licence" for the purposes of the PEO Act, s 58(6). (iii) The Activity authorised or controlled by the Licence as varied 111. The importance of this last-mentioned conclusion is that the identified activity, namely the Gold Mine at premises comprising Mining Lease 1386, remains the same activity that is authorised by the Licence Variation for the purposes of s 58(6). In other words, the Licence Variation does not change the "activity that is authorised or controlled by" the Licence, although as I have earlier noted, it does increase from five to eight the number of authorised discharge points from which polluted waters may be discharged, and it authorises, subject to environmental criteria, the spray irrigation to land of treated wastewaters generated by the Gold Mine. 112. However, this conclusion does not mean that the same activity, authorised or controlled by the Licence, must necessarily have the same environmental impacts in the twin contexts of the Licence and the Licence Variation. Rather, it is necessary to examine the terms and conditions of the Licence and the Licence Variation in order to ascertain what is the environmental impact of the activity that is respectively authorised or controlled by (i) the Licence and (ii) the Licence Variation (meaning the Licence, as varied). In so ascertaining the environmental impact of the authorised or controlled activity, it is the impact of the activity undertaken in accordance with the terms and conditions of the Licence and the Licence Variation that must be considered as being the relevantly "authorised or controlled activity" for the purpose of the PEO Act s 58(6)(a). 113. This last-mentioned conclusion may require some little elaboration because in some statutory contexts it has been held that the "environmental impact of a proposed development or activity" must be considered without regard to any proposed mitigating or ameliorating conditions. Thus, in a case relied upon by the Applicant, Drummoyne Municipal Council v Maritime Services Board (1991) 72LGERA 186, the statutory context was the duty imposed by s 112(1) of the EP&A Act upon a determining authority not to carry out an activity or to grant approval in relation to that activity "that is likely to significantly affect the environment" unless it has obtained and examined an environmental impact statement in respect of that activity. Faced with evidence that the determining authority had concluded that the proposed activity was likely to significantly affect the environment, but that if certain conditions modifying the proposal were imposed, the proposal would not be likely to significantly affect the environment (see at 192), Stein J held at 192: A number of comments may be made on the conclusions of the officer. First, it is the activity the subject of the application for approval which needs to be examined in the application of s 111 and s 112, and not the activity as it may be modified by the imposition of conditions by the determining authority. …… In my opinion a determining authority cannot determine the question of whether a proposed activity is likely to significantly affect the environment by reference to the imposition of certain conditions which may have the effect of mitigating the environmental impact. This is particularly so where such conditions have the effect of altering or changing the application made by the proponent. To do so could lead to absurd situations which will defeat the objectives of the legislation. One must have regard to the opening words of s 111: For the purpose of attaining the objects of this Act relating to the protection and enhancement of the environment, … In my view an application for permission or approval to carry out an activity is either likely to significantly affect the environment or it is not. 114. The Maritime Services Board case was followed by the Chief Judge in Byron Shire Businesses for the Future Inc v Byron Council (1994) 84LGERA 434 in the context of the statutory obligation imposed the EP&A Act, s 77(3)(d1) that a development application in respect of a development which "is likely to significantly affect the environment of endangered fauna" be accompanied by a fauna impact statement, where the Chief Judge held at 446: It was not possible to determine whether the development was likely to significantly affect he environment of the Comb crested Jacana merely by imposing a condition of consent that might mitigate that effect. 115. It is apparent from both these cases that the Court considered that the statutory duty or obligation applicable in each case would be significantly defeated or frustrated if the "threshold question" whether the proposed activity or development "is likely to significantly affect the environment" etc could be answered by considering the ameliorating effect of proposed modifications to the proposed activity or development, that might be imposed as conditions of the requisite approval or development consent. 116. However, the approach adopted in the Maritime Services Board case and the Byron Shire Businesses case was not applied by this Court in two later decisions, involving slightly different statutory contexts. In Smyth v Nambucca Shire Council (1999) 105 LGERA 65, the statutory context was the duty imposed by the EP&A Act, s 5A to take into account specified factors "in deciding whether there is likely to be a significant effect or threatened species…" etc and the question for decision by the Court was whether ameliorative measures that were included in a proposed development should be considered. Lloyd J held at 69 that the fulfilment of the statutory duty of answering the relevant statutory question "can only be answered by reference to the development which is proposed, which in turn requires a consideration of any ameliorative measures proposed as part of the development". His Honour immediately continued: That this must be so is clear from the reference to whether it is the development which is likely to significantly affect threatened species…etc (his reference to "development" being a reference to the express terms of the EP&A Act, s 77(3)(d1), being one of the provisions to which s 5A expressly applies). 117. His Honour's judgment contains no reference to the Maritime Services Board or the Byron Shire Businesses case or to the principle there adopted concerning the proper approach to determining the "threshold" question raised in those cases. 118. Most recently, the Chief Judge in the Westport Marina case rejected an argument (founded upon the principle enunciated in the Maritime Services Board case) to the effect that the statutory question posed by cl 1, Pt 2 of Schedule 3 to the Environmental Planning and Assessment Regulation 1994 "could not be determined by reference to a condition requiring the development to be carried out in accordance with Exhibit "V" (Exhibit V being a plan amending the proposed development being an extension to an existing Marina). 119. In rejecting the argument, the Chief Judge at 61 described the argument as misconceived because "(T)he proposed development was modified not by a condition of consent designed to mitigate environmental impact, but by a change to the development application made by the applicant during the course of the hearing following upon leave granted by the Court". The Chief Judge continued: This was not a case where the applicant was permitted to carry out activity X so long as it did so in compliance with a condition requiring Y . Rather, the development itself was the activity described in Ex V , and reference to Ex V in the orders and conditions merely ensured that development consent was given to the development the subject of the development application. 120. The Chief Judge went on to hold that the case was "entirely different from" the Maritime Services Board case and that the question posed by the PEO Act s 58(6) was a different question from that posed in the Maritime Services Board case inasmuch as s 58(6) required "consideration of the environmental impacts of the total development compared with the existing development": at 461. 121. There is no inconsistency in the four decisions of this Court just discussed, the combined effect of them appearing to be that in determining a threshold question as to whether a proposed activity or development "is likely to significantly affect the environment" etc whereas it is an impermissible approach to answer the question by reference to mitigating or ameliorative measures to be introduced by way of conditions of any requisite approval or development consent, it is a permissible approach to answer the question by reference to the proposed activity or development, including any mitigating or ameliorative measures that are included in the proposal. 122. To so state the combined effect of these decisions is, in my respectful opinion, to inevitably expose the apparent difficulty in seeking to maintain any meaningful distinction between the different effects of an ameliorative measure (i) introduced by way of condition of consent and (ii) one already included in the proposed activity or development. It is this intrinsic difficulty concerning the sustainability of the distinction that I would respectfully understand the President to have been adverting to in his judgment in the Transport Action Group case where, speaking of the statutory power conferred by the EP&A Act, s 112(4)(b)(i) for a determining authority "to impose conditions or require such modifications as will, in its opinion, eliminate or reduce the detrimental effect of the activity on the environment…." etc he said at 152 To seek to distinguish between the formulated changes and the conditions to which they are subject, and to argue that only the former can be treated as a modification, is a semantic quibble that must be rejected. There is no difference in substance between a modification expressed as: Instead of a four-lane freeway there will be a two-lane freeway and a modification expressed as: The freeway will only proceed subject to reduction from four to two lanes. 123. Immediately following this passage in his judgment, the President refers to the Maritime Services Board case noting that the statutory context and question under consideration in the instant case were "quite different" from that addressed in the Maritime Services Board case. After quoting the passage from Stein J's judgment that is included in the more extensive passage that I have earlier recited, the President at 153 expressed his preference to reserve his decision as to the correctness of the Maritime Services Board decision. 124. It is not necessary in the present case to delve any more deeply into the decided cases because ultimately (as indeed the cases themselves attest) it is the relevant statutory language in its statutory context that is the all important consideration in the task of statutory construction. In the case of the PEO Act, s 58(6), it is tolerably clear in my judgment, that the relevant "environmental impact" is that of the activity that is "authorised or controlled" by the licence as varied and that which is so "authorised or controlled", necessarily is that which accords with the relevant terms and conditions of the licence, including the licence that is varied. To put the matter more bluntly, what has to be considered is not the environmental impact of the activity per se (as was held to be required in the Maritime Services Board case) but the environmental impact of that activity as it is "authorised or controlled by" the licence (including the licence as varied). 125. It is true that the relevant statutory context, in the present case is one that raises a "threshold question" but it is not the same threshold question that is posed by the EP&A Act, s 77(3)(d1) or s 112 as to whether facts exist that require an environmental impact statement or a species impact statement to be prepared in support of a proposed activity or development. Rather it is the threshold question whether facts exist that require the decision-maker to invite and consider public submissions before exercising the statutory power to vary a licence. Doubtless, the threshold question is addressed to an important public consideration, as is recognised by the express objects of the PEO Act, namely that of involving the community in environmental protection, but it is not a consideration that requires the exhibition of an environmental impact statement etc as an integral aspect of the required environmental impact assessment. Rather, the express requirement is to invite to consider any public comment on the proposed variation of licence. 126. Accordingly, the same imperative that informed the decisions in the Maritime Services Board case and the Byron Shire Businesses case, namely that of ensuring that the processes for proper environmental impact assessment were not defeated or frustrated or foreshortened or otherwise avoided (eg by adopting an approach to environmental impact assessment of "putting the cart before the horse") does not apply in the present case. Rather, s 58(6) is clearly concerned with the environmental impact or effect of what is authorised or controlled by the variation of the licence, and accordingly, the true focus of the statutory provision is the environmental impact or effect of that which is authorised by the variation of the licence. This inevitably means it is the licence as varied, with all of its relevant terms and conditions, that "relevantly authorises or controls the activity" and it is that which must be considered, rather than simply the environmental impact or effect of the physical activity per se. 127. It follows, for the foregoing reasons, that the approach adopted in the Maritime Services Board case, has no application in the fulfilment of the statutory duty imposed by s 58(6) cf Westport Marina. 128. Moreover, even if, contrary to my conclusion just expressed, there were some scope for the application of the approach adopted in the Maritime Services Board case to the present case, it would not produce any different result because the terms and conditions imposed upon the grant of the Licence Variation were themselves substantially if not entirely, proposed in the application for variation. In effect, the Licence Variation simply replicates, as the relevant environmental conditions upon which the Variation was granted, the terms and conditions that had been proposed and propounded in the application for variation of the licence. 129. It is now possible to proceed to the required comparison between environmental impacts of the activity as authorised or controlled (i) by the Licence; and (ii) by the Licence as varied. (iv) The environmental impact of the activity authorised by the Licence unaffected by the Variation 130. I have earlier held that the relevant activity is the Goldmine established on Mining Lease 1386. The environmental impact of that activity has principally been experienced in the establishment phases of the Gold Mine and thereafter in its operation involving the mining of ore and the processing of it for gold. In addition to what has been experienced in those processes, there is a large body of documentary evidence which predicted and evaluated the likely environmental impact of the proposed establishment of the Gold Mine. 131. The likely environmental impact of that activity was chiefly described and analysed in the following documents: (i.) the Environmental Impact Statement (EIS) for the Timbarra Gold Project prepared by R W Corkery and Co Pty Ltd; and (ii.) the Environmental Impact Assessment (EIA) Report prepared by the Department of Mineral Resources. 132. Both these documents (together with the several other documents incorporated in them) had been prepared in accordance with the requirements of the EP&A Act, Pt 5, pursuant to which the Minister for Mineral Resources, as the designated "determining authority", had on 3 April 1996 granted approval, by granting Mining Lease 1386, subject to specified conditions (imposed as conditions and covenants of the Mining Lease) for the carrying out of the activity comprising the establishment and undertaking of the Gold Mine on the leased area of some 400 ha situate on Timbarra Plateau. 133. The principal environmental impact of the approved activity identified in the EIS and the supporting and follow-up documents, was the significant modification of the land form involving the clearing within the 400 ha area of Mining Lease 1386 of some 80 ha of existing native vegetation. This land clearing, which was undertaken during the establishment phase of the Gold Mine, had obvious adverse consequences for protected native flora and fauna (in terms of the Threatened Species Conservation Act 1995) within the environs of the Mining Lease area and within the wider context of the Timbarra Plateau (the latter comprising an area of some 200,000 ha, much of which is contained in the Malara State Forest and other State Forests). 134. Those consequences were mitigated by the imposition on the grant of the Mining Lease of ameliorative conditions that had been recommended by the Director General of the National Parks and Wildlife Service. These conditions, to adopt the words employed by the Director General in his report on the EIS made pursuant to the EP&A Act, s 112E were " a minimum requirement". So much appears from the following extract from his statutory Report:— Nevertheless, NPWS has not proposed that the Timbarra Gold Project not proceed but has recommended a range of prescriptions in an attempt to ameliorate, to some extent, the adverse impacts on the fauna and flora of the area. While the implementation of these prescriptions will themselves have cost associated with them it is considered that from a precautionary perspective and given the potentially irreversible impact from the mine on flora and fauna they are a minimum requirement. 135. Evidence of the environmental impact experienced in the establishment phases of the Gold Mine is contained in the Species Impact Statement dated March 1999 (coinciding with the commencement of gold mining operations on Mining Lease 1386) prepared by ERM Mitchell McCotter Pty Ltd in respect of the then proposed extension of the Gold Mine onto adjoining land immediately to the south known as Mining Lease 1426. 136. That Species Impact Statement was prepared immediately following the decision of the Court of Appeal in the Timbara Coalition case. In releasing the Statement, its authors noted that it had been prepared as a "precautionary measure" and warned against interpreting it as implying that the authors' earlier conclusion that a species impact statement was not necessary, was invalid. 137. The Species Impact Statement, though addressing the environmental impact of the proposed mine extension, makes frequent reference to the environmental impact of the establishment of the Gold Mine on Mining Lease 1386 noting inter alia that that process involved land clearing of some 95 ha but that the potentially adverse environmental impacts of this process had been ameliorated by the implementation of ameliorative measures as required by the conditions of Mining Lease 1386 imposed at the suggestion of the Director of National Parks and Wildlife, including implementation of the Threatened Species Management Plan (January 1998) that had been prepared in accordance with those conditions of the Mining Lease. 138. The evidence contained in the Species Impact Statement of the environmental impact of the establishment of the Gold Mine on Mining Lease 1386 corroborates the predictive evaluation contained in the documents evaluating the proposal in terms of the requirement of the EP&A Act, Pt 5 that I have earlier referred to. 139. Another significant environmental impact was that caused by the operational activities of the Gold Mine, involving open cut mining to obtain the ore, the crushing of the ore and the extraction of gold by the leach pad method whereby water treated with cyanide is continuously applied in percolation fashion to heaps of the crushed ore deposited on the leach pads. The environmental impacts caused by these operational activities of the Gold Mine obviously include the generation of noise (blasting is used to extract the ore from open cut pits) and of dust. Another environmental impact caused by the establishment was the need for operational activities of the Gold Mine to be controlled, including the containment of stormwater runoff and installation of sedimentation controls to protect watercourses. 140. Licence No 005771 contains a number of conditions controlling these aspects of air and noise and water pollution. 141. In respect of these conditions controlling water pollution, it is to be noted that both the EIS (adopted by the conditions of Mining Lease 1386) and the Mining Operations Plan, prepared as required by conditions of the Mining Lease, proposed "a closed system of waste water management" meaning that all waste waters would be retained in a series of dams or ponds constructed within the Mining Lease area and that the required storage capacity of such dams or ponds would be 140 megalitres ie estimated to be sufficient to cope with a 1 in 400 year storm event of 72 hours duration. As will presently be shown, the Licence Variation is exclusively directed to the issue of stormwater detention and water pollution. (v) The Environmental Impact of the Activity Authorised or Controlled by the Licence as Varied 142. It is against this background of the description and appraisal of environmental impacts of the activity authorised or controlled by Licence 005771 that I come to consider the environmental impact of the activity as varied by the Licence Variation (this being a necessary prelude to determining the ultimate issue of whether the Licence Variation "will significantly increase the environmental impact of the activity"). 143. Despite some of the language employed in the Licence Variation, it is clear that the sole intent and purport of the Variation was to authorise three additional discharge points situated within the premises comprising Mining Lease 1386 "from which the licensee may discharge in accordance with the conditions of this licence, the volume, concentration or type of pollutants described" in the Licence Variation. 144. In terms, the Licence Variation did not involve any change in "the activity authorised or controlled by the Licence" except for its authorising three additional discharge points from which there might emanate "water pollution" as that term is defined in the PEO Act. As earlier found, the "activity" in terms of the Licence as varied remains the Gold Mine, established and operating on the premises comprising Mining Lease 1386, but the extent to which water pollution over or from the premises was authorised, was increased by virtue of the provisions of the Licence Variation authorising the three additional discharge points. 145. The Licence Variation identifies the three additional discharge points as follows— (i.) discharge point 006, being classified as "an overflow drain located at the spillway from Cell 11 Silt Dam"; (ii.) discharge point 007 being classified as "an overflow drain located at the spillway from Site 3 Silt Dam"; and (iii.) discharge point 008, being classified as "drain discharging (irrigation) located at the trial irrigation area of approximately 10 ha on Mining Lease 1386, situate immediately to the south and south-east of the raw-water dam". 146. Each of the three locations is shown on a map expressly referred to in the conditions imposed on the Licence Variation (Figure 1), a copy of which is annexed hereto and marked "A" (This plan also shows the location of the various dams established in the vicinity of the heap leach pads.) 147. The Licence Variation imposed a number of "limit conditions" and "monitoring conditions" on the authorised discharge of water pollution from each of the designated three additional authorised discharge points. It is necessary to fully recite these conditions in order to fully appreciate what was authorised and to assess the environmental impact of the authorised or controlled "activity". The conditions provide as follows:- Location of authorised discharge point: Spillway from Cell 11 Silt Dam Code number of authorised discharge point: 006 Discharge Classification: OVERFLOW DRAIN LIMIT CONDITIONS W1. All run-off within Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 must be contained and directed to the Cell 11 Silt Dam. For the purposes of this licence, Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 is defined by the shaded area outlined on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1. For the purposes of this licence, the Cell 11 Silt Dam is identified on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1. W2. Water irrigated onto the Control Drainage Area for the trial irrigation of treated water to the semi-prepared heap leach pad cells 11-20 must have a pH value equal to or below 9.0 and equal to or greater than 6.0 and must not contain more than: (a) 0.05 milligrams per litre Total Cyanide; (b) 1500 microsiemens per centimetre Conductivity; or (c) 1000 milligrams per litre Salinity. W3. There must not be any discharge from authorised discharge point 006, except: (a) run-off in excess of the volume resulting from a 1 in 20 year, 3 hour (or equivalent) storm event that occurs on the Premises; or (b) when the Cell 11 silt dam is drained as permitted by condition W4. For the purposes of this condition, Australian Rainfall and Run-off Data from the Australian Bureau of Meteorology for the Premises is to be used to calculate the volume of run-off from a 1 in 20 year, 3 hour storm event. W4. No waste is permitted to be drained to waters from the Cell 11 Silt Dam except water that contains not more than: (a) 50 milligrams per litre of Total Suspended Solids (TSS); (b) 140 milligrams per litre of Total Dissolved Solids; (c) 150 milligrams per litre of Dissolved Molybdenum; (d) 0.005 milligrams per litre of Total Cyanide; or (e) 12 milligrams per litre of Total Nitrogen as Total Nitrate plus Total Kjeldahl Nitrogen. MONITORING CONDITIONS W5. The licensee must undertake all environmental monitoring and action all commitments specified in the document Environmental Management Plan Trial Irrigation to Land Project, Ross Mining NL dated Location of authorised discharge point: Spillway from Site 3 Silt Dam Code number of authorised discharge point: 007 Discharge Classification: OVERFLOW DRAIN LIMIT CONDITIONS W1. All run-off within Control Drainage Area for Site 3 Silt Dam must be contained and directed to the Site 3 Silt Dam. For the purposes of this licence, Control Drainage Area for Site 3 Silt Dam is defined by the unshaded areas of Cells 11-19 and cleared areas immediately north of heap leach pad cells and process ponds as outlined on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1. For the purposes of this licence, the Site 3 Silt Dam is identified on the map entitled Timbarra Gold Mines - Location of Irrigation to Cleared Cells and Surface and Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1. W2. There must not be any discharge from authorised discharge point 007, except: (a) run-off in excess of the volume resulting from a 1 in 20 year, 72 hour (or equivalent) storm event that occurs on the Premises; or (b) when the Site 3 Silt Dam is drained as permitted by condition W3. For the purposes of this condition, Australian Rainfall and Run-off Data from the Australian Bureau of Meteorology for the Premises is to be used to calculate the volume of run-off from a 1 in 20 year, 72 hour storm event. W3. No waste is permitted to be drained to waters from the Site 3 Silt Dam except water that contains not more than: (a) 20 milligrams per litre of Total Suspended Solids (TSS). MONITORING CONDITIONS W4. The licensee must undertake all environmental monitoring and action all commitments specified in the document. Environmental Management Plan Trial irrigation to Land Project, Ross Mining NL dated Location of authorised discharge point: Trial irrigation area of approximately 10 hectares on Mining Lease 1386 south and south south-east of the raw water dam Code number of authorised discharge point: 008 Discharge Classification: DRAIN DISCHARGING (IRRIGATION) LIMIT CONDITIONS W1. For the purposes of this licence, Control Drainage Area for the trial irrigation of treated water to the area approximately 10 hectares site on Mining Lease 1386 south and south-east of the raw water dam is defined by the shaded area outlined on the map entitled Timbarra Gold Mines - Location of Trial Irrigation Areas and Vegetation, Surface and Ground Water Sampling Sites dated 17 March 2000, Figure 1. W2. Water irrigated onto the Control Drainage Area for the trial irrigation of treated water to the area approximately 10 hectares site on Mining Lease 1386 south and south-east or the raw water dam must have a pH value equal to or below 9.0 and equal to or greater than 6.0 and must not contain more than: (a) 0.05 milligrams per litre Total Cyanide; (b) 1500 microsiemens per centimeter Conductivity; or (c) 1000 milligrams per litre Salinity. W3. Irrigation of wastewater must not be carried out if soil moisture conditions are such that surface runoff or ponding is likely to occur. MONITORING CONDITIONS W4. The licensee must undertake all environmental monitoring and action all commitments specified in the document Environmental Management Plan Trial Irrigation to Land Project, Ross Mining NL dated 148. The reference in the "Monitoring Conditions" imposed in respect of each of the three additional authorised discharge points to the "Environmental Management Plan Trial Irrigation to Land Project, Ross Mining NL dated " though an obviously incomplete reference, was clearly intended as a reference to the Environmental Management Plan (EMP) prepared by Ross Mining NL and dated 22 May 2000, a copy of which was received by the Fifth Respondent at its Armidale Regional Office on 26 May 2000. 149. The EMP states its purpose as follows: The trial, irrigating treated water sourced from the raw water dam, to be undertaken over a period of 6 months, is to assess the effects of irrigating on soil, plants, surface water and groundwater. 150. The trial involves the two areas which are shown on Figure 1 (Annexure A hereto), namely— (i) 10 ha of natural forest; and (ii) 8.1 ha comprising "cleared, semi-prepared heap leach pads cells 11-20". 151. The EMP contains detailed monitoring regimes in respect of the effects of irrigation of treated waste waters on— (i.) surface waters (Section 8.1); (ii.) ground water (Section 8.2); (iii.) soils (Section 8.3); and (iv.) vegetation (section 8.4). 152. The EMP also contains express and detailed commitments to be observed and undertaken by the Licensee in undertaking the irrigation regime. 153. It is clearly the intention and effect of the monitoring conditions imposed on the Licence Variation that the Licensee be bound by the detailed commitments contained in the EMP and that the activity authorised by the Licence Variation be regarded as a "temporary" activity to be undertaken on a " 6 month trial basis" 154. These results are confirmed by the express recitals ("background") contained in the Fifth Respondent's written notice of the Variation of Licence which are as follows: BACKGROUND (a) TIMBARRA GOLD MINES PTY LTD (the licensee) is the holder of environment protection licence 005771 (the licence) under the Protection of the Environment Operations Act 1997 (the PEO Act). (b) Timbarra Gold Mines Pty Ltd has received approval from the NSW Department of Mineral Resources to manage operations on the mining leases at the premises in a care and maintenance manner. No mining or processing of ore is being carried out on the premise. (c) Part of the care and maintenance activities involves decontamination of the heap leach pad areas and process areas and water in the associated plant and ponds. (d) Prior to any mining or processing operations commencing again on the premise, the occupier of the premise will be required to fully review all water, processing and wastewater management measures on the premise to meet all environmental objectives and pollution control targets specified by the Environment Protection Authority. (e) Timbarra Gold Mines Pty Ltd made an application (Licence Variation Form - premise dated 17 May 2000) to the Environment Protection Authority (EPA) for several alterations to the licence in regard to care and maintenance works and a six month trial irrigation of treated water to two areas of land within Mining Lease 1386. (f) These variations to Licence 5771 are considered by the Environment Protection Authority to be temporary and will be reviewed and altered if mining or processing operations commence again on the premise. (g) These variations to Licence 5771 may be reviewed and altered by the Environment Protection Authority within six months depending on the outcome of the trial irrigation of treated water. 155. The affirmations expressed in the recitals that the Licence Variation is permitting a six month trial of the irrigation regime or a temporary authorisation subject to a satisfactory outcome of the monitoring regime required to be undertaken by the Licence, are consistent with the provisions of the PEO Act concerning the powers of the EPA in respect of the variation of licences—vide s 58(1) to s 58(5) and s 77(2). 156. In my judgment, these limitations expressed in the recitals relevantly circumscribe the authorisation granted by the Licence Variation. No submission to the contrary was advanced by any party. 157. The Court has received a considerable body of expert evidence relevant to the assessment of the environmental impact of the irrigation to land of treated waste waters stored in the raw water pond (such waters having been transferred thereto from the stormwater dam before the Licence Variation was granted). It should be noted that the expert evidence (involving six witnesses) adduced by the First to Fourth Respondents, was substantially to the same effect as the contents of the expert reports that had been submitted to the Fifth Respondent on 17 May 2000 in support of the application for the Licence Variation, although as will presently be shown, the expert evidence adduced at the hearing cures deficiencies in the flora and fauna impact assessment and overall emphatically reinforces the scientific data which supported the application for Licence Variation. 158. Most, if not all, of these documentary materials supporting the Licence Variation application had been submitted to the Fifth Respondent for discussion, consultation and comment in the period of six months preceding the making of the application for Licence Variation. That ongoing consultative process, which involved other public authorities (operating on an inter agency basis), namely the Department of Mineral Resources, the National Parks and Wildlife Service and the Department of Land and Water Conservation, had begun on 23 September 1999 with the submission to the Department of Mineral Resources by the Fourth Respondent of a draft Mining Operations Plan for the "care and maintenance" of the Gold Mine, prepared immediately following the public announcement that the Timbarra Gold Mine would cease production owing to the then significant fall in the world price of gold. Throughout that consultative period, the Fifth Respondent had been actively engaged in ongoing discussions and negotiations with the Department of Mineral Resources (responsible for the enforcement of the obligations imposed by Mining Lease 1386, including the requirement that operations be undertaken in accordance with a Mining Operation Plan approved by the Department and currently in force) and the First to Fourth Respondents, it (the EPA)having originally suggested the trial irrigation of the treated waste waters to the unused heap leach cell pads 11-20 as an alternative to the First to Fourth Respondents' original proposed trial of irrigating the forested area, and it having given advice to the First to Fourth Respondents as to whether the trial irrigation of treated waste waters required approval by way of a Variation of Licence No 005771. 159. In addition to the expert evidence adduced by the First to Fourth Respondents, the Court received expert evidence from three experts called by the Applicant. 160. The Court also received evidence from Mr David Dutaillis, an Environment and Protection Officer employed by the Fifth Respondent at its Armidale Regional Office, who had represented the Fifth Respondent in the extended period of consultation and discussions that had preceded the making of the Licence Variation application that I have earlier noted, and who ultimately had exercised his delegated authority, in granting the Licence Variation. 161. His evidence was by far the most extensive given at the hearing, no doubt because the parties were apparently proceeding on the basis that the Applicant's challenge to the Fifth Respondent's decision to grant the Licence Variation only involved the judicial review of that decision. 162. Although I have now held that it is for this Court to determine the question whether the Licence Variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the Licence", Mr Dutaillis' decision (and his reasons for it) remains a relevant consideration, although of course, it is not conclusive of the determination that is required to be made by the Court. (At this stage, I should note the First to Fourth Respondents' submission based upon some dicta in the Enfield case that if the question was to be determined by the Court for itself, then I should give considerable weight to Mr Dutaillis' opinion that the Licence Variation would not significantly increase the environmental impact of the activity authorised or controlled by the Licence, and hence there had been no requirement to invite and to consider public submissions before granting the Licence Variation.) 163. I propose to initially consider the testimony of Mr Dutaillis concerning his decision to grant the Licence Variation before considering all of the expert evidence given at the hearing. I do so, not for the purpose of judicially reviewing his decision, but for the purposes of properly understanding the basis for that decision and properly understanding his opinions, as a source of evidence relevant to the Court's task of determining for itself the question posed by the PEO Act, s 58(6). In this respect, it is to be noted that of all the witnesses, it was only Mr Dutaillis, who had expressed an opinion on the ultimate question posed by the PEO Act, s 58(6). This is not entirely surprising since it was he who had determined that question as a prelude to his decision granting the Licence Variation. All of the other experts simply addressed various aspects of the environmental impact of the licensed activity for the spray irrigation to land of treated waste waters. They did not address the comparative task concerning environmental impacts referred to or implicit, in s 58(6). 164. In his affidavit sworn 18 July 2000, Mr Dutaillis comprehensively records his involvement on behalf of the Fifth Respondent with its consideration of the First to Fourth Respondent's proposals for approval by the Department of Mineral Resources and the Fifth Respondent of the draft Mining Operations Plan for the Care and Maintenance of the Mine (the MOP) which proposals in the course of the consultative process were revised to include the proposals to irrigate to land, treated waste waters stored in the raw water dam. The immediate cause for the emergence of the proposal for land irrigation of treated waste waters was the realisation by the First to Fourth Respondents that in the event of higher than average rainfall being experienced in the summer of 2000/2001 "wet season" they would not be able to maintain the 1 in 400 year storm event storage capacity as required by the conditions of Mining Lease 1386 and by the conditions of Licence 005771. (This emergency situation and the action proposed to be taken by the First to Fourth Respondents to relieve it is fully detailed in the affidavit of Mr Marshall Lee, the Second Respondent's Corporate Environment Manager, sworn 18 July 2000 to which I shall later return particularly when considering the Applicant's allegation of breaches of the conditions of Mining Lease 1386.) 165. Mr Dutaillis, in his affidavit, also comprehensively explains how he came to his decision to grant the Licence Variation and how he came to the opinion that the Licence Variation would not significantly increase the environmental impact of the authorised or controlled gold mining activity. I propose to now examine that evidence in some detail for the assistance that it provides to the Court in its task of determining for itself the question whether the Licence Variation will significantly increase the environmental impact of the authorised or controlled activity cf The Queen v Ludecke; Exparte Queensland Electricity Commission (1985) 159 CLR 178 at 183 to 184 held to be applicable to the task presented to the trial court in the Enfield City case: see at 155. In so concluding, I am mindful of the fact that save for some important exceptions which will be noted presently, virtually all of the expert evidence relied upon by the First to Fourth Respondents in the present case was available to Mr Dutaillis in the documentary form which was presented in support of the application for Variation of the Licence. 166. In par 52 of his affidavit Mr Dutaillis states that a few days before granting the Licence Variation he had discussed the matter at a meeting with two of his superiors at the EPA where he presented them with the background to the irrigation proposal, an overview of his investigations and conclusions and an outline of the intent and details of the proposed Licence Variation. He then states "We agreed that the EPA would issue the variation". 167. In par 54 of his affidavit, Mr Dutaillis states that before notifying the Fourth Respondent of the grant of the Licence Variation, he had prepared "a statement of reasons" for his decision to vary the Licence. These reasons appear in a document which is in the form of a standardised "checklist" (which I infer was probably derived from an EPA Office Manual relevant to the administration of the PEO Act) which Mr Dutaillis had completed by ticking the relevant box and where appropriate, by adding his own specific comments. For example, under the heading "Statement of Reasons" the document records the following: The EPA considered all significant environmental and other issues relevant to the application. In particular, the following issues were significant in the EPA's decision on the application. · This Licence variation is issued as part of the company's decontamination program for the mine processing site as it finalises measures moving to the next stage of care & maintenance. The Dept of Mineral Resources under the relevant mining leases has allowed care and maintenance. · The trial of irrigating treated water to land is considered the least impact option and will reduce risk to the environment. · Water to be irrigated has been treated. There are some residual levels of pollutants. Very minor amounts of total cyanide remain but tests demonstrate that the low level of total cyanide present is very stable (for example no free or WAD cyanide detected) and the cyanide that remains is not bio-available. Similar levels of total cyanide are detected in the receiving environment. Some elevated levels of nitrogen could leach to groundwater. The trial will involve extensive and comprehensive monitoring of surface and ground waters, soils and vegetation. · This Licence variation is least impact option to finalise decontamination measures on the site and progress into next stages of care & maintenance. · If the premise occupier proposes re-commencing mining operations and processing then mine site water management measures will have to be re-calculated & redesigned to ensure agreed levels of environment protection are met well before any proposed re-commencing. The EPA has taken into account the objects of the Protection of the Environment Operations Act and the following relevant factors listed in section 45 of that Act: · See check list attached. Statement of Reasons 1. The practical measures as outlined in the licence application and supporting documentation and reflected in the licence conditions will assist in controlling and mitigating any likely impact of treated water emission resulting from the activity, assisting in the minimisation of environmental harm. 2. The proposal is consistent with standards set out in previous decisions by the EPA on licence and approvals issued for this premise and in regard to the numerous development consents issued for the mine site. 168. The standardised form that was completed by Mr Dutaillis includes his comments in response to a standardised checklist raising issues (i) concerning the stated objects of the PEO Act, s 3; and (ii) reflecting the considerations enumerated in the PEO Act, s 45. (Section 45 enumerates 13 matters which the regulatory authority "is required to take into consideration as are of relevance" in exercising its functions under Chapter 3 of the Act.) 169. In respect of the considerations enumerated in s 45, Mr Dutaillis, in his written comments, noted that the considerations stipulated in par (b), par (c), par (d), par (f) and par (h) were applicable and that the considerations stipulated in par (a), par (e), par (g), par (i), par (j), par (k) and par (l) were not applicable. 170. A sample of Mr Dutaillis' comments in respect of some of the considerations that he regarded to be applicable is provided as follows: (c) the pollution being or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment Comment: Water has been treated - residual levels of some pollutants remain (eg nitrogen & dissolved solids) - minor amounts of total cyanide remain but tests demonstrate this total cyanide is very stable (eg no free or WAD cyanide detected) & the cyanide that remains is not bio-available. It matches that in the receiving environment. Some elevated levels of nitrogen could leach to groundwater - trial involves significant & comprehensive monitoring. Licence variation is least impact option to finalise measures to decontaminate site & progress into next stages of care & maintenance. (d) the practical measures that could be taken (i) to prevent, control, abate or mitigate that pollution; and (ii) to protect the environment from harm as a result of that pollution? Comment: Measures chosen to deal with treated water are the least impact options. Trial will comprehensively monitor surface & ground waters & soils. If occupier recommences mining or processing, then before any works all water management measures will be reviewed to meet standards determined by the EPA. 135. 171. The considerations that Mr Dutaillis regarded as non-applicable included par (l) which provides— (l) in connection with a licence application—any public submission received by the appropriate regulatory authority under this Act or the Environmental Planning and Assessment Act 1979, noting that the Dictionary to the PEO Act defines "licence application" as an "application for the issue, transfer or variation of a licence". 172. Mr Dutaillis' written comment in this respect of par (l) is as follows: Licence variation not considered to significantly increase environmental impacts. Decisions in Licence Variations are consistent with other EPA standards set in decisions on licence & approvals issued & consistent with various development consents issued for mining at the premise. 173. The checklist standardised form contained an additional component referable to "all Licence Variations" which was completed by Mr Dutaillis as follows: ISSUE YES NO N/A a. Does the variation of the licence authorise a significant increase in the environmental impact of the activities, authorised or controlled by the licence No b. Has the proposed variation been subject of environmental assessment and public consultation under the EP&A Act 1979? No c. Was the original application for the issue of a licence subject to IDA? No 138. 174. In par 55 of his affidavit, Mr Dutaillis states that "in arriving at my decision under Section 58(6) of the PEO Act, I considered whether the activity authorised or controlled by the licence had already had a significant impact on the environment". He immediately proceeds to refer to his review of relevant documents, including the EIA prepared by the Department of Mineral Resources pursuant to the EP&A Act, Pt 5 as submitted to the Minister for Mineral Resources as determining authority who in April 1996 approved the project and granted Mining Lease 1386, which EIA included the following statement in its "assessment of environmental impact" of the proposed mine:. The proposal will result in a significant and unavoidable modification of a land form which has already been modified by past mining activities: Section 5.2 175. In paragraph 56 of his affidavit Mr Dutaillis states the reasons that led him to the conclusion that the "irrigation trial would not significantly affect threatened species, populations, ecological communities or their habitats in the 10 hectare forest area". That conclusion adopts the statutory language (that I have emphasised) employed in the Threatened Species Conservation Act 1995 s 94(1), s 95(1) and the EP&A Act, s 5A, s 78A, s79B(3), s112(1B). It is to be noted that that statutory language is not, in terms, employed in the PEO Act, although s 45(i) and (j) refer respectively to (i) an "environmental impact statement or statement" of environmental effects prepared under the EP&A Act; and (ii) to a "species impact statement" prepared under the Threatened Species Conservation Act. 176. In this respect, it is to be further noted (as will presently appear) that some of the expert witnesses called by the first to fourth Respondents also express opinions in terms of that particular statutory language and formulation. In one sense this is an unexceptional feature of the expert evidence, because since the enactment of the Threatened Species Conservation Act 1995 (and the consequent amendments made by that Act to the EP&A Act and the National Parks and Wildlife Act) that statutory language or formulation has come to the forefront in expressions of requisite opinions and conclusions of environmental impact assessment of proposals on the natural environment particularly that comprising protected native flora and fauna. 177. There is however, an unusual feature of the prominence given to this statutory language or formulation in the expert evidence given in the present case, which must be noted, namely that its employment at the very least implies the relevance of the EP&A Act and/or the Threatened Species Conservation Act to the spray irrigation activity authorised by the Licence Variation, whereas in fact, as I have earlier pointed out, it is common ground that that activity was not subjected to any environmental assessment under the EP&A Act, with the inevitable legal and practical consequence that recourse to the statutory language or formulation can serve no relevant purpose so far as concerns any application of EP&A Act or the Threatened Species Conservation Act to the spray irrigation activity sanctioned by the Licence Variation. 178. However, in making these observations, I am by no means suggesting that the expert evidence that expresses opinions by reference to the statutory language or formulation is irrelevant to the present case, since it is obvious that the particular kinds of assessment that are called for by the statutory language are but a specialised species of the genus of "environmental impact assessment". It is the wider concept combined with the concept of "significant increase" that is the relevant criterion employed by the PEO Act, s 58(6)(a). However, it seems to me with respect that, apart from this limited relevance, resort to the statutory language or formulation is otherwise apt to prove beguiling or misleading because the present case simply does not raise any issue under the EP&A Act or the Threatened Species Conservation Act. It must be added that even the limited relevance that I have acknowledged, means that the expert opinions that are expressed by reference to that statutory language or formulation, do not directly address the issue raised by the PEO Act, s 58(6), and the ultimate relevance of such expert opinions must be mediated via the sole statutory criterion employed by s 58(6). 179. In par 57 and par 58 of his affidavit, Mr Dutaillis provides a detailed description of the "manner in which I came to decide that the Variation did not significantly increase environmental impacts of the activity controlled or authorised by the Licence" in a similar fashion to the provision of reasons for administrative decisions that is obtainable under s 13 of the Commonwealth Administrative Decisions (Judicial Review) Act 1977. 180. The detailed description is in the form of a written table comprising six typed pages and containing four columns with the following respective headings: Column 1 Issue Column 2 Environmental Concern Column 3 Follow up Action Column 4 Decision - Resolution/Action 181. A copy of the written table is annexed hereto and is marked "B". 182. In respect of the contents of the Table, Mr Dutailis in par 57 of his affidavit provides the following explanation— (i) Column 1 details features of the proposed activity which he considered to "have the potential to increase the environmental impact of the activity authorised or controlled by the Licence"; (ii) Column 2 details his reasons for ascribing those potential environmental impacts; (iii) Column 3 details actions that he took in assessing those potential environmental impacts; and (iv) Column 4 details his conclusions why such matters "did not significantly increase the environmental impact of the activity authorised or controlled by the Licence" including measures he took "to ensure on an ongoing basis, that no such increased impact would result or would be minimised so as to be insignificant". 183. In par 58 of his affidavit, Mr Dutaillis states that whereas his presentation of the matter in his Table demonstrates his assessment of the "issues" considered in "isolation", his assessment had also considered "whether those matters taken together significantly increased the environmental impact of the activity authorised or controlled by the Licence" and he had concluded that they "did not have such an impact". Mr Dutaillis re-affirmed his conclusion. 184. In par 60 of his affidavit, Mr Dutaillis noted an error in the concentration of molybdenum permitted to be discharged from the cell 11 silt dam. The limit condition had incorrectly stated 150 milligrams per litre of dissolved molybdenum, the correct stipulation being 0.150 milligrams per litre. It has not been suggested that this is other than an obvious typographical error and I take it that the correct stipulation is to be substituted for the incorrect one. 185. The Applicant's extensive and searching cross-examination of Mr Dutaillis did not ultimately, in my evaluation of the testimony, undermine his evidence-in-chief and he adhered to his opinions that had undergirded his decision to grant the Licence Variation . Although Mr Dutaillis is not a scientist, he demonstrated an intelligent comprehension of the several areas of scientific knowledge and discipline which were vitally relevant to the proper environmental evaluation of the proposal to irrigate to land treated wastewaters from the Gold Mine. He also demonstrated a very comprehensive grasp of the complex and detailed history of the environmental evaluation of the proposal to establish the Timbarra Gold Mine, which evaluation process had included significant input from the Environment Protection Authority, which in addition to licensing the Gold Mine had also granted the requisite "pollution control approval" under the Pollution Control Act 1970 for the establishment and operation of the Gold Mine. He also demonstrated obvious competence in the discharge of his duties as an Environmental Protection Officer who had had a detailed involvement since 1995 in the processes that led to the grant of the statutory environmental protection approval and licence (including the Licence Variation) for the establishment and operation of the Timbarra Gold Mine. 186. Despite this testimonial outcome reflecting my evaluation of his evidence, the Applicant in his final address, severely criticised Mr Dutaillis' decision as being unreasonable in the "Wednesbury" sense. A number of grounds were cited, including the following:- (i.) In respect of the issue of "residual cyanide levels in the irrigation water", it was submitted that Mr Dutaillis should have adopted and acted upon all of the advice for "follow up" action given to him by scientists employed by the EPA, whom he had consulted, instead of a selective adoption of the advice; (ii.) In respect of the issue "treated wastewater in raw water dam", it was submitted that Mr Dutaillis' conclusion that "this issue would not cause significant increase in the environmental impact of the activity" was "outrageous" in view of the elevated levels of metals in the wastewater compared with the corresponding levels of those metals as sampled from the nearby stream; (iii.) In respect of the issue of "impacts on threatened species", it was submitted that Mr Dutaillis' reliance upon the advice given by the National Parks and Wildlife Service to the Department of Mineral Resources in respect of the proposed trial irrigation activity was unreasonable since that advice had been confined to a monitored trial of forested area of only 4 hectares. Furthermore, it was submitted that Mr Dutaillis should not have placed any reliance upon the Greenloaning Biostudies "s 5A assessment of impacts of the trial irrigation area on flora and fauna" because of the following obvious deficiencies in that assessment— (a) it had addressed a trial irrigation of an area of only 4 hectares and not 10 hectares; (b) it had not assessed the impact of other discharges from the Site 3 Dam and Cell 11 Dams; (c) it did not contain any assessment of the impact on fauna; (d) it did not contain any ecotoxicological assessment; (e) it, in terms, had referred to the proposed activity erroneously as "quarry operations"; and (iv) In respect of the issue of "elevated levels of total dissolved solids and nitrogen in irrigation water", it was submitted that Mr Dutaillis should not have sanctioned departures from the ANZECC Water Quality Guidelines and should not have accepted the prospect of waste waters containing at times elevated levels of total dissolved solids, nitrogen aluminium dissolved ions and molybdenum, without causing adverse environmental impacts. 187. In view of my earlier holding that the determination of the question posed by the PEO Act, s 58(6) is ultimately a fact-finding task for the Court, the Applicant's submission that Mr Dutaillis' decision was unreasonable in the "Wednesbury" sense is, of course, no longer relevant. (In referring to Mr Dutaillis' "decision", it is to be emphasised that it is not his decision to grant the Licence Variation that is the relevant decision in the present case, but his decision that preluded that decision, namely his opinion that the Variation would not significantly increase the environmental impact of the activity authorised or controlled by the Licence as varied). 188. However, the Applicant's submission can, I think, be reasonably converted into the submission that the Court, in coming to its own determination on the question, would not place much weight and reliance upon Mr Dutaillis' decision because of the various criticisms of that decision that had been made by the Applicant in the proceedings. I have not detailed the full extent of the criticisms levelled against Mr Dutaillis by the Applicant. Though multitudinous, their true nature and effect, was to argue against the merits of his decision. Such criticism is, of course, not truly relevant to a challenge to the decision, by the process of judicial review. However, it is relevant to the value of his evidence, on the issue to be decided by the Court. 189. For their part, the Respondents submit that Mr Dutaillis' reasoned decision had convincingly withstood the sustained attacks made on it in the course of the proceedings by the Applicant, and that in consequence of that obvious testimonial outcome, the Court, in its determinative function, would derive much assistance from his decision and from the impressive defence of it that had been given during his oral testimony, especially under cross-examination. 190. There are a number of observations concerning Mr Dutaillis' evidence that I should make at this stage, even before I come to consider the totality of the expert evidence adduced at the hearing, noting that his evidence is not strictly expert testimony and stands on a somewhat different footing from that testimony. 191. Firstly, and most importantly, it is to be noted that there was no evidence adduced in rebuttal of Mr Dutaillis' evidence, the criticism of him being exclusively founded upon the Applicant's cross-examination of him (which, as I have found, did not truly or significantly undermine or disturb his evidence or cause him to repudiate or abandon any of his opinions). 192. Secondly, it is to be noted that the expert evidence adduced by the Respondents in the present proceedings is to the same or similar effect to the scientific opinions that had been proffered in support of the application for the Licence Variation, which opinions Mr Dutaillis had evaluated and relied upon, and had generally accepted, in coming to his decision to grant the Licence Variation. Importantly, it is to be noted, as will presently emerge, that the scientific evidence adduced by the Respondents in the proceedings relevantly has cured any deficiencies in the scientific opinions that had supported the application for Licence Variation—most notably the environmental impact assessment conducted by Greenloaning in respect of native flora and fauna which had originally been confined to 4 hectares of forested area rather than the 10 hectares approved in the Licence Variation, was cured by the additional joint assessment undertaken by Ms Martin and Dr Robertson, which was adduced in evidence at the hearing (see Exhibit H/1). 193. Thirdly, it is to be noted that the expert evidence adduced by the first to fourth Respondents in the present case emphatically reinforces the scientific opinions supporting the Licence Variation application, and provides a cogent rebuttal of the scientific doubts raised by the expert evidence that had been adduced by the Applicant in respect of the scientific materials that had supported the application for the Licence Variation. 194. Fourthly, had the adjudication on the Applicant's claim of breach of the PEO Act, s 58(6) in the present case, been confined to the Court's judicial review of Mr Dutaillis' decision, I would have found that that claim had not been established by the Applicant. 195. The foregoing extended consideration of Mr Dutaillis' evidence enables me to deal more briefly with the totality of the expert evidence given at the hearing, because in large measure, it replicated the scientific data supporting the application for Licence Variation that had been considered by Mr Dutaillis in coming to his decision. 196. It will, I think, assist in the appreciation of the ambit of this expert evidence, to initially examine it globally to see how it all fits together. 197. In this respect it is, I think, a fair overall appraisal of the expert evidence adduced on behalf of the Applicant to describe it as raising scientific doubts as to the validity and/or soundness of the scientific opinions that had been proffered in support of the application for the Licence Variation. 198. Each of the Applicant's expert witnesses provided expert opinion by way of a self-confessed hurried response to the scientific data that had supported the application for Licence Variation, without the benefit of any field work or site inspection of the Mine Site and without the benefit of a more thorough-going opportunity to review that scientific data. (In so regarding the evidence, I am not criticising the experts for the extremely limited opportunity and limited resources they had to prepare their evidence—I am simply stating objectively what each of the Applicant's witnesses themselves had said concerning their respective briefs and the limited opportunity and resources they had enjoyed to prepare their opinions). 199. In the circumstances, it is not at all surprising that the principal function and focus of their evidence was to raise scientific doubt rather than to provide scientific opinion. 200. So to appreciate the limited nature and ambit of the expert testimony adduced by the Applicant is at once to expose the intrinsic difficulty encountered by the Applicant who carries the burden of proof on the issue of whether there has been a breach of the PEO Act, s 58(6). 201. By contrast, the expert evidence adduced by the First to Fourth Respondents is self-evidently far more comprehensive—in addition to containing a detailed rebuttal and answer to the scientific doubts raised by the Applicant's experts, it provides positive evidence on the environmental impacts of the activity authorised by the Licence Variation for the spray irrigation to land, of treated waste waters at the Gold Mine site. 202. With the benefit of that global evaluation of the expert evidence, I can now briefly consider the detail of the various expert opinions that were given in the proceedings. 203. Firstly, I shall consider the evidence of the Applicant's experts—Dr Moran (a hydrogeological consultant, specialising in water quality and geochemical issues), Mr Milledge (a wildlife ecologist) and Mr Ryan (a terrestrial ecologist). 204. Mr Milledge was severely critical of the flora and fauna impact assessment conducted by Greenloaning. In particular, he criticised the assessment by virtue of it being confined to only 4 hectares of forested land, and containing no assessment of toxicological effects on flora and fauna caused by virtue of the existence of chemicals in the discharged treated waste waters. 205. More positively, Mr Milledge noted that the proposed irrigation area was vegetated with specified plant communities which were the preferred habitat of two threatened rodent species, the endangered Hastings River Mouse and the vulnerable Eastern Chestnut Mouse. He also noted that the proposed irrigation area lay within the catchment of a tributary to Nelson Creek which was known to contain populations of two threatened frog species, the vulnerable Stuttering Frog and the vulnerable Glandular Frog. 206. Mr Ryan criticised the Greenloaning flora and fauna impact assessment in similar terms to Mr Milledge. Additionally, he expressed the opinions (i) that the proposed mitigation methods, including the 1 ha control monitoring area "is likely to be inadequate"; (ii) that the Greenloaning conclusion that no species impact statement was required "is not scientifically based" and (iii) based upon his reading of the Greenloaning assessment, "the proposal may have an impact on the local biota". 207. Dr Moran who resides in the USA had even less opportunity to review the scientific data that had been sent to him by the Applicant and which he received only two days before he swore his first affidavit. 208. His review of the materials led him to raise the following scientific doubts or concerns— (i.) a number of variable factors resulted in uncertainty of the chemical composition of the treated waste waters licensed to be spray irrigated; (ii.) the treated waste waters were likely to contain numerous potentially toxic constituents such as cyanate, thiocyanates, metal-cyanide complexes and chloramines, which constituents are not detected in standard analytical procedures (including (i) weak acid dissociable cyanide WAD and (ii) total cyanide) for measuring cyanide; (iii.) some metal-cyanide complexes and thiocyanates can release free cyanide in certain conditions; and (iv.) water quality monitoring samples should have included representative unfiltered (and acidified) samples. 209. Dr Moran concluded his first affidavit by expressing the opinion that "the toxicological impact on wildlife and ecology cannot be determined with any degree of accuracy using the monitoring methods stipulated by the conditions of the Licence Variation and hence, the precautionary principle should be adopted and the discharge prevented". 210. Dr Moran's first affidavit had been prepared without reference to the affidavit sworn 18 July 2000 by Dr Stephen Dubos, a consulting geochemist (simply because that affidavit had not been available to be included in the scientific data that had been forwarded to Dr Moran in the USA). 211. Dr Dubos swore a second affidavit (sworn 24 July 2000) in response to Dr Moran's affidavit which contains a detailed and comprehensive rebuttal of Dr Moran's opinions and a very comprehensive and satisfying answer to Dr Moran's scientific doubts. 212. This led to Dr Moran's swearing a second affidavit (dated 27 July 2000) in response to Dr Dubos's two affidavits. (Dr Dubos further replied to Dr Moran's second affidavit and sworn testimony in his third affidavit sworn 4 August 2000). 213. In his affidavit in reply, Dr Moran adhered to his original opinions, including the following— (i.) "the actual chemical compositions of the waters proposed for irrigation and/or discharge from the Timbara Site are unknown and subject to considerable uncertainty"; and (ii.) "the discharge waters are likely to contain numerous potentially toxic constituents that have not been investigated", noting that he had not been shown any "analyses for cyanide-metal complexes, thoyanates and cyanates and chloramines." 214. Dr Moran was extensively cross-examined by Senior Counsel for the First to Fourth Respondents. In the course of that cross-examination he was asked to assume that an analysis of samples taken from the stored treated waste waters undertaken on 27 July 2000 had revealed measured levels of 0.2 milligrams/litre thiocyanate and 0.1 milligrams/litre of cyanate. (Evidence of such measurements was subsequently to be tendered in the First to Fourth Respondent's case on Exhibit J/1). 215. The relevant portion of cross-examination which appears at transcript 28 July 2000 at p 42 to p 43 is as follows: Q. If - if as at not 28th but 27 July you had a measurement of cyanate that was less than zero point one milligrams per litre, you'd draw a deal of comfort from that wouldn't you? A. I would. Q. If as at 27 July 2000 you had a measured level of thiocyanate of zero point two milligrams per litre, you'd draw some comfort from that too, wouldn't you? A. Yes Q. And that would be particularly so because if you assumed that over a period of months that was the extent to which - in which sorry over a period of months in which this cleaned water has been stored in this 8,000 square metre dam clearly the result indicates that there is no cyanate or thiocyanate of concern? A. Are these numbers - have they been presented to the public yet or are they here. Q. Forget about the public, just answer my question. If they were the levels of the measurements that were reflected from analysis then your concern about at least those substances would cease would it not? A. Especially if I knew what the units were. Q. Sorry the units of what? A. Are these in milligrams per litre. Q. Yes I said that, I'm sorry? A. I - I missed that. Q. Milligrams per litre? A. I would - my concerns would be reduced, yes. Q. Thank you. Well you certainly wouldn't have concerns as to the possible toxic problems that emanated or might emanate from cyanates or thiocyanates, would you? A. If those values were representative, I wouldn't yes. Q. You wouldn't thank you. And if - let me just put this proposition to you as well, assume the dam having the characteristics that I've described to you, 8,000 square metres, five metres deep, clear water and let me go back from 28 July 2000 to April 2000 and let me ask you to assume that within a few, start again, within a week or so of 26 April there had been discharged into the raw water dam treated water from the stormwater dam, treated in the sense that it's been subjected to the processes and the addition of hydrogen peroxide in the manner described in the documents that you read from the company. You would expect, if there were significant presence of cyanide in that treated water coming into the dam that when measurements were taken on 26 April you would be able to detect at levels of significance, cyanide certainly in the total cyanide measurement would you not? A. If - if what we mean by cyanide we mean the species that are detectable in the forms you've talked about, free, wad and total. Q. Yes? A. Then I agree. Q. Agreed and if we add that understanding to the measurement that I've asked you to assume more recently of cyanate with thiocyanate, then they would be things you would add together to say well I'm becoming less concerned about this cyanide question now, wouldn't they? A. Yes. 216. The following expert evidence was adduced by the First to Fourth Respondent— (i.) Dr Dubos (geochemist) (ii.) Dr Ross Smith (ecotoxicologist) (iii.) Dr Robert Loch (soil scientist) (iv.) Dr David Robertson (ecologist) (v.) Ms Alison Martin (flora and fauna consultant) (vi.) Mr Marshall Lee (environmental scientist). 217. As earlier noted, the global ambit of this evidence was (i) to rebut and/or answer the scientific doubts or concerns raised by the Applicant's experts; and (ii) to provide relevant scientific opinions on the environmental impacts of the licensed activity for the spray irrigation and land of treated waste waters stored in the raw water pond at the Goldmine site. 218. The evidence of Ms Martin and Dr Robertson is in direct rebuttal of the scientific doubts and concerns and opinions expressed by Mr Milledge and Mr Ryan in respect of the original assessment of impact on flora and fauna undertaken by Greenloaning (Ms Martin's Company). 219. I have previously noted that a significant effect of Ms Martin's and Dr Robertson's evidence is that they have now jointly prepared an assessment of impacts on flora and fauna of the trial irrigation by an assessment that complies with the standard "8 part test" prescribed by the EP&A Act, s 5A. 220. That assessment (Exhibit H/1) is confined to the 10 hectare forest area. It does not include the 8.1 hectare area cleared for heap leach pad cells 11 - 20. The assessment adopts and relies upon the expert opinions expressed in the Landloch Report (prepared by Dr Loch) which had supported the application for Licence Variation. The conclusions of the Assessment include the following: (i.) The proposed irrigation trial is not likely to cause significant adverse effects on the plant species and communities within the study area; (ii.) As no significant impacts on threatened species populations or habitats are provided, no further investigations are required in the form of a Species Impact Statement. 221. However, the Assessment includes the following recommendation: To ensure that the proposed irrigation trial does not significantly affect the vegetation and habitats of the survey area, it is recommended that a vegetation monitoring programme be implemented as detailed in Section 5.1. 222. Details of the recommended monitoring programme reflect the monitoring programme detailed in the EMP adopted by the monitoring conditions imposed upon the grant of the Licence Variation. 223. Dr Robertson, in his affidavit sworn 18 July 2000, expresses the following opinions in respect of the environmental impact of the licensed activity on the 10 hectare forested area— (i.) the likelihood of there being significant impact on any threatened species is very low (par 15); (ii.) there will be no significant adverse effects on the vegetation from the proposed trial irrigation (par 16); and (iii.) there will be no adverse impacts upon threatened fauna species and/or their habitats from the proposed trial irrigation (par 17). 224. Ms Martin, in her affidavit sworn 18 July 2000 expresses similar opinions: vide pars 14 - 16. Additionally, Ms Martin, in her affidavit refers to her extensive experience (involving the past seven years) in conducting innumerable surveys and undertaking flora and fauna assessments on the Timbarra Plateau in respect of the establishment and operation of the Gold Mine. She also expresses her familiarity with the area 8.1 ha, being the cleared land for leach pad cells 11 to 20, noting that that area had previously been cleared in accordance with the pre-clearing protocols developed as part of the Threatened Species Management Plan (which she had jointly prepared) that had been required to be prepared by conditions of Mining Lease 1386. 225. As I have already noted, the environmental impact assessments jointly and severally prepared by Ms Martin and Dr Robertson rely upon the findings of the Landloch Report prepared by Dr Loch, the soil scientist which had originally propounded the proposal for the spray irrigation to land of treated waste waters as the preferred solution to the perceived problem experienced by the First to Fourth Respondents in maintaining the required stormwater storage capacity for the 1 in 400 year rain event (72 hours duration). 226. The Landloch Report had contained the following overview: This report considers the potential for disposal of treated water via irrigation of an area of undisturbed woodland. An area of 12 ha is suitable for irrigation, but it is proposed that the concept be trialed initially for 3-6 months on a smaller (4 ha) area using slightly higher rates of irrigation. An evaluation of the trial area will be carried out to ensure that the irrigation has no adverse impacts on soil properties, vegetation, or surface and ground waters before any decision to expand the irrigation to a larger (10-12 ha) area. There appear to be no potential problems with the proposed irrigation. The irrigation method proposed will cause minimal site disturbance in installation and in subsequent removal once the irrigation is completed. The quantity of water to be applied (300-350 mm/year) is small relative to recorded rainfall variability at this site. The amounts of Nitrogen that will be added to the soil via irrigation are also small relative to soil reserves of organic Nitrogen estimated from data for similar soils in this area. Amounts of other elements in the irrigation water are not high enough to be of concern. Strategies for irrigation management and scheduling are detailed, with monitoring of soil water potential being the major tool used to determine irrigation applications. Irrigation will be applied in response to soil water deficit rather on a fixed timetable, and the rate applied per month is likely to vary considerably. 227. The findings of the Landloch Report were further explained and elaborated by Dr Loch in his affidavit sworn on 18 July 2000. In par 6, Dr Loch states that his assessment was principally directed to the presence in the treated waste waters of two elements—Nitrogen and Molybdenum in the measured concentrations, which were in excess of the "acceptable contaminant concentration" levels prescribed in the ANZECC Guidelines for Irrigation Waters. 228. In par 7, Dr Loch notes that irrigation of the forested area "will be governed by soil water conditions, with irrigation only occurring where there is a sufficient soil water deficit" so as to ensure that "irrigation does not greatly increase water logging, deep drainage or runoff". 229. In par 8 to par 21 inclusive, Dr Loch undertakes two separate assessments—one based upon the six month trial period and the other "if, on the basis of site monitoring, irrigation is found to have no significant impacts" over a two year period. Each assessment is based upon an assumed irrigation rate of 50 mm per month and provides calculations in respect of the following matters— (i.) Total Nitrogen applied (kg/ha) (ii.) Potential Nitrogen loss via denitrification (kg/ha) (iii.) Estimate of total Nitrogen currently in the soil (kg/ha) (held in organic matter) (iv.) Percentage change in total soil Nitrogen 230. Dr Loch's assessments or calculations are for 2.16 per cent and 8.6 per cent increases in the levels of total soil Nitrogen respectively for the six month trial and the two year trial. 231. In par 20, Dr Loch expresses the following opinion: In the long term, an approximate increase of 8.6% in the soil N pool is unlikely to have any discernible impact on plant growth or on plant ecosystems. 232. In par 22 to par 27, Dr Loch considers the impact of the measured concentration of Molybdenum in the treated waste waters irrigated over a period of two years, noting in par 22 that the "maximum total loading of Molybdenum…will be 8.7 kg/ha…being less than the total acceptable Molybdenum loading of 10 kg/ha that was used in developing ANZECC Guidelines for irrigation waters". 233. In par 33 to par 36 inclusive, Dr Loch considers the impact of irrigating the cleared area comprising cells 11 to 20 of the heap leach pads, noting that overall application rates will be lower than in the case for the forested area because irrigation of the cleared areas will depend upon water loss via evaporation rather than transpiration (being the principal mechanism operating in respect of irrigating the forested area). 234. In par 37, Dr Loch expresses the following conclusion: It is accordingly my opinion that the proposed irrigation trial will: (a) have no significant effects on soil or vegetation within the forested area; (b) have no significant impact on groundwater or receiving water adjacent to the forested area; (c) result in some environmentally insignificant changes to soil properties in the cleared heap leach area; and (d) cause slight increases in the amount of runoff from the cleared heap leach area reaching the cell 11 sediment pond, and in the content of sediment and N in that runoff, which is unlikely to have any significant environmental impact. 235. In his affidavit sworn 18 July 2000, Dr Smith (ecotoxicologist) referred to earlier reports that he had provided to the First to Fourth Respondents (including the report that had been included in the scientific data supporting the application for Licence Variation). In his affidavit, Dr Smith elaborates upon the two options for disposing of stored treated waste waters that he had discussed in his original report. He also opines on the substantial environmental risks of an uncontrolled release to waters of an excessive build up of waters in the storm water dam. 236. After fully discussing the various relevant environmental scenarios, Dr Smith expresses the following conclusions— In conclusion, it is my opinion that: · Direct discharge of the raw water dam waters into natural receiving waters in the region could be achieved without environmental damage, but would require the careful maintenance of a ten-fold or greater dilution of the raw water dam waters in the receiving waters. This dilution could be difficult to maintain in practice. · The irrigation of the raw water dam waters to naturally vegetated lands has little environmental risk due to the capacity of the soil profile and natural litter deposits to assimilate and detoxify the potentially environmentally harmful substances contained in the raw water dam waters via sorption into the soils, and binding to tannins and other organic compounds. · During the course of the proposed irrigation, any frogs resident in the area are unlikely to be adversely affected by salt levels, and their aquatic stages would be protected by monitoring to ensure that the receiving waters complied with the ANZECC 1992 water quality guidelines. · In the event of an uncontrolled discharge of waters from the storm water dam into the natural receiving waters there would be a substantial risk of environmental damage occurring as a result of the concentrations of cyanide, aluminium cadmium,, copper, zinc, ammonium and nitrogen that could develop in the receiving waters in the course of a sustained discharge, or from the concentrations of cyanide and copper that could develop in the receiving waters in the course of a short-term discharge. · While the cyanide concentrations in the process circuit will decline over time, the concentrations of metals and nitrogen contained in the storm water dam and process circuit are likely to decline very slowly. · Of the options considered, only the proposed land irrigation carries minimal environmental risk, and that risk would be further controlled by the proposed monitoring and management plan associated with the proposed irrigation. 237. Dr Dubos, as I have earlier noted, swore three affidavits (the last two in reply to Dr Moran). In his original affidavit sworn 18 July 2000, Dr Dubos traverses his involvement with the Gold Mine which commenced in December 1999 when he was consulted to advise on treatment of waste waters to destroy the cyanide levels therein, and to develop a protocol for the trial irrigation to land, of treated waste waters. 238. After setting forth details of the trial irrigation proposal, including regular monitoring and collection of data for submission to the EPA, Dr Dubos expresses the following opinions at par 30 and par 31: Based on the above, it is my professional opinion that no irreversible negative impact on the local environment is possible if the trial irrigation and monitoring are carried out as proposed. An impact on the receiving environment outside the mining lease and irrigation areas is exceedingly unlikely. If the irrigation trial goes to completion, and is proved to have no significant negative impact on the environment, it is my professional opinion that continued irrigation of treated water from the raw water dam, at the projected rates, will have minimal or zero negative impact on the environment. 239. Dr Dubos' second and third affidavits provide, in my respectful judgment, a resounding and convincing rebuttal of, and answer to, all of the scientific doubts and concerns that had been raised by Dr Moran in his affidavit and oral testimony. 240. I have earlier mentioned the measured concentrations of cyanate and thiocyanate in the samples taken from the raw water pond on 27 July 2000, that were put to Dr Moran, as assumptions, in the course of his cross-examination (the relevant passages from which I have earlier recited). 241. The Certificate of Analysis of these samples from the raw water pond treated waters was later tendered in evidence (Exhibit J/1) and shows a measurement of cyanate of less than 0.1 mg/L (below detection level) and 0.2 mg/L for thiocyanate (having a detection level of 0.1 mg/L). In his third affidavit (sworn 4 August 2000), Dr Dubos refers to these sampled measurements as "verifying" the opinions and conclusions that Dr Dubos had expressed in rebuttal of the concerns raised by Dr Moran about cyanide complexes and derivatives. 242. Dr Dubos impressed me, as possessing a mastery of his subject and I am entirely satisfied that he has fully answered the scientific doubts and concerns that had been raised by Dr Moran, who did not have the benefit of evidence of the sampled measurements of cyanates and thiocyanates, which matters were the focus of his fundamental scientific concerns and doubts. 243. Although I accept Dr Dubos' opinion that those measurements "verified" Dr Dubos' opinions and conclusions on those matters, it also seems to me that Dr Moran was also vindicated by the belated evidence of those sampled measurements, it being noted that he fairly and properly conceded the matter that had been put to him in cross-examination on the assumption that such measurements existed. 244. Finally, I should note the opinion of Mr Marshall Lee, (who has held the position as Corporate Environment Manager for the second Respondent since 21 June 1999) contained in par 57 of his affidavit sworn 18 July 2000 to the following effect: In my opinion, there will be no significant effect on receiving ground water and surface water and there will be no adverse effect on fauna and flora in the irrigated areas if the irrigation is carried out in accordance with the conditions imposed by the EPA on the variation of the licence the subject of these proceedings. 245. I take this opinion as being one that is chiefly informed by Mr Lee's proper reliance upon the expert opinions contained in the affidavits of Dr Dubos, Dr Loch, Dr Smith and Dr Robertson respectively which Mr Lee notes at par 56 of his affidavit. 246. Although each of the Respondent's expert witnesses were cross-examined and some of them (eg Dr Loch and Ms Martin) were criticised in the Applicant's final submissions, ultimately I have found the expert testimony adduced by the First to Fourth Respondents to be very persuasive. In particular, and taken globally, it very convincingly rebuts and answers the scientific doubts and concerns that have been raised by the Applicant's experts, and positively provides an impressively integrated assessment of the environmental impact of the licensed activity for the spray irrigation to land, of treated waste waters at the Gold Mine. 247. Having so evaluated the competing expert evidence on the environmental impacts of the licensed activity for the spray irrigation to land of treated waste waters, I am now in the position to state my findings on the environmental impact of "the activity authorised or controlled by the Licence as varied". 248. I find that that impact is the accumulation of (i) the already found environmental impact of the activity, the subject of the original licence and (ii) the environmental impact of the spray irrigation activity. 249. My findings in relation to latter impact are as follows. 250. There will be an additional environmental impact of the spray irrigation activity because until the Licence Variation was granted, that particular activity was not authorised. The Licence Variation authorises that additional activity by allowing three additional discharge points for "polluted waters" (the original licence having authorised five discharge points but not having licensed any spray irrigation activity). As I have previously held, that environmental impact of that additional activity is to be assessed by having regard to (i) the conditions imposed upon the Licence Variation; (ii) the fact that the activity is limited temporally to a six month trial period; and (iii) the requirements for conducting and monitoring the trial activity in accordance with the EMP. 251. My acceptance of the overall expert testimony adduced by the First to Fourth Respondents, in preference to the expert testimony adduced by the Applicant, because the latter testimony was in the nature of raising scientific doubts and concerns which, in my judgment, have been entirely and satisfactorily answered by the expert testimony adduced by the First to Fourth Respondents, leads me to the conclusion as a finding of fact that the environmental impact of the authorised spray irrigation activity carried out in accordance with the conditions of the Licence Variation for a trial period of six months is likely to be insignificant. 252. Accordingly, my finding on the environmental impact of the activity authorised or controlled by the Licence as varied is that there is now added to the significant environmental impact of the activity authorised or controlled by the Licence, as originally granted, an additional, but insignificant environmental impact, of the authorised spray irrigation activity. 253. The position is now reached where I am able to make my ultimate finding on the question posed by the PEO Act, s 58(6). (vi) Does the Licence Variation authorise a significant increase in the environmental impact of the activity authorised or controlled by the Licence as varied? 254. Having regard to my findings on the preliminary issues, my ultimate finding is that the Licence Variation will not significantly increase the environmental impact of the activity authorised or controlled by the Licence as varied. 255. I have arrived at this ultimate conclusion upon the basis of my own findings based upon my evaluation of the totality of evidence, both documentary and expert, without any reliance upon the evidence of Mr Dutaillis. However, if I were to consider his evidence, I would find that it would provide some assistance in the Court's ultimate fact finding task, and most particularly so in terms of his opinion that the Licence Variation would not significantly increase the environmental impact of the activity authorised or controlled by the Licence as varied. I propose to examine the question of whether I should consider Mr Dutaillis' evidence as providing support for my own ultimate factual finding. 256. In Enfield, the joint judgment accepted as applicable to the task of the trial judge the statement made by Mason J in R v Alley Ex parte NSW Plumbers and Gasfitters Employer's Union (1981) 153 CLR 376 as cited at p 155 of the judgment in Enfield subject to the qualification that the evidence remained "substantially the same". 257. However, as the joint judgment makes clear, the statement in Alley is to be understood as "permitting rather than requiring recourse to the administrative decision" (p 155) and ultimately "…it was the task of Debelle J to determine the question of the jurisdiction of the Commission upon the evidence as to special industry before him, as opposed to the probative material which had been before the Commission, and upon his construction of the relevant provision. His Honour did so. If, at the end of the day, Debelle J had been in doubt upon a particular factual matter, it would have been open to his Honour to resolve that doubt by giving weight to any determination upon it by the Commission. We do not read Debelle J's reasons as indicating any doubt apt for resolution in this way. 258. To similar effect is the following passage in the separate judgment of Gaudron J However, there may be situations where the evidence before the court is the same or substantially the same as that before the primary decision-maker and minds might reasonably differ as to the finding properly to be made on that evidence. In that situation a court may, but need not, decline to make a different finding from that made by the primary decision-maker, particularly if the latter possesses expertise in the area concerned (94). Even so, in that situation, the question is not so much one of judicial deference as whether different weight should be given to the evidence from that given by the primary decision-maker. (94) See R v Alley; Ex parte NSW Plumbers & Gasfitters Employees' Union (1981) 153 CLR 376 at 390, per Mason J; R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1981) 153 CLR 402 at 411, per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ; r v Ludeke; Ex parte Queensland Electricity Commission (1985) 159 CLR 178 at 183-184. 259. In the present case, there are two features of the evidence at the hearing which were obviously not before Mr Dutaillis when he concluded that the Licence Variation would not significantly increase the environmental impact of the activity licensed or controlled by the Licence as varied, namely: (i.) the Applicant's expert evidence raising scientific doubts and concerns about the scientific data that had supported the application for Licence Variation; and (ii.) the additional expert evidence adduced by the First to Fourth Respondents which materially cured obvious deficiencies in the flora and fauna impact assessment and which considerably reinforced some of the other scientific data (particularly the evidence of Dr Dubos and Dr Loch). 260. My evaluation of this "additional" evidence (ie not available to Mr Dutaillis) is that it significantly reinforces the scientific data that had supported the application for Licence Variation so that the scientific underpinning of Mr Dutaillis' relevant decision, is considerably stronger in the case of the Court's decision. 261. Although Mr Dutaillis did not have the benefit of the expert evidence adduced by the Applicant in the proceedings, my evaluation of that evidence is that it is primarily focussed on legitimately raising scientific doubts and concerns but more importantly, that those doubts and concerns have been rebutted and/or fully answered by the expert evidence adduced by the First to Fourth Respondents. 262. In the result, my extensive consideration of Mr Dutaillis' opinion (searchingly tested by, but surviving relatively intact, the process of cross-examination), does provide me with assistance, in the nature of corroborative support, for my own determination on the question posed by s 58(6), which assistance I adopt. 263. It follows from the foregoing findings that the duty imposed by the PEO Act, s 58(6) to invite and to consider public submissions was not enlivened in the present case. It further follows that the Applicant's allegation of "breach of the Act" by virtue of the Fifth Respondent granting the Licence Variation, without first inviting and considering public submissions, must accordingly fail. E. THE APPLICANT'S ALLEGATION THAT IN GRANTING THE LICENCE VARIATION, THE FIFTH RESPONDENT FAILED TO GIVE ANY CONSIDERATION TO THE IMPACT OF THE AUTHORISED SPRAY IRRIGATION ACTIVITY ON ABORIGINAL RELICS 264. As referred to earlier, in seeking leave to amend its claim to allege a failure to consider the impact of the spray irrigation activity on Aboriginal relics, the Applicant was content to rely upon the filed evidence. However, without objection from the Applicant, I granted leave to the Fifth Respondent to respond to this new claim. It did so by relying upon Mr Dutaillis' further affidavit sworn on 31 July 2000 in which he deposes to the consideration that he had given to the question of the impact of the licensed spray irrigation activity on aboriginal relics. In this respect, he deposed to the following matters— (i.) at a meeting held on 30 March 2000, he attended with representatives of the First to Fourth Respondents and an officer of the Department of Mineral Resources, the latter had indicated that he would seek the views of the National Parks and Wildlife Service and the Department of Land and Water Conservation on the First to Fourth Respondents' proposed trial irrigation. In particular, the Service would be consulted "in regard to any possible threatened species or Aboriginal archaeological issues"; (ii.) In its letter dated 5 April 2000, in reply to the Department of Mineral Resources, the Service had stated: In the event that the proposed irrigation of forested land proceeds, the NPWS supports the proposal to initially irrigate only a four hectare area as a monitored trial, with approval for further irrigation dependent on the satisfaction of the DMR with the results of the monitoring. (iii.) In his decision granting the Licence Variation, Mr Dutaillis took into consideration the following matters concerning Aboriginal relics— a) the fact that the Service had not raised any concerns regarding Aboriginal archaeological issues arising from the spray irrigation activity; b) the fact that the Department of Mineral Resources, in its EIA prepared for the Minister for Mines on the Environmental Impact Statement to establish the Gold Mine had noted that Aboriginal archaeological issues had been assessed with the only evidence of Aboriginal sites or relics located in the area comprising Mining Lease 1386 being Bold Top Mountain, situate some 2 km to the east of the authorised irrigation areas. c) the fact that in its comments on that Environmental Impact Statement provided in its letter dated 14 August 1995, the Service had stated: The results of the archaeological survey undertaken by Appleton (1994) have shown no evidence that the proposed development may impact upon any archaeological material. The absence of relics of past Aboriginal usage in the archaeological record in the subject area, is largely due to the intensity of past mining activities ; and d) his knowledge that there had been a confidential agreement entered into between the Mining Company and the Tabulam Bundjalung Aboriginal Community in relation to (i) a relevant cultural connection with the land comprising Mining Lease 1386 and (ii) the Aboriginal Community's native title claim in respect of the area comprising Mining Lease 1386. 265. Mr Dutaillis was cross-examined on this further evidence. Again he was criticised for relying upon material dating back to the Environmental Impact Assessment undertaken in 1995 and 1996 for the establishment of the Gold Mine without further enquiring as to further Aboriginal archaeological or anthropological studies and for making the assumption based upon the Service's failure to raise concerns of the proposed trial irrigation for Aboriginal archaeological issues, that there were no relevant concerns on that score. 266. These criticisms of Mr Dutaillis, which even if wholly accepted come close to a criticism of the merits of his decision, do not establish the alleged failure of the Fifth Respondent to "consider" the impact of the spray irrigation activity on Aboriginal relics. 267. However, I readily accept Mr Dutaillis' evidence concerning his "consideration" of the proposal's impact on Aboriginal archaeological relics. In my judgment, that consideration was relevantly a real and legally adequate consideration of that issue. 268. In this respect, it is to be noted that there is no evidence of (i) the existence within the forested irrigation area of Aboriginal relics (eg scar trees) or (ii) adverse impact of the spray irrigation activity upon such relics, even assuming they relevantly existed. 269. As I would understand it, the Applicant is truly aggrieved by what he considers to be the inadequate Aboriginal archaeological and anthropological assessment of the area comprising Mining Lease 1386. He is particularly critical of the "Appleton" archaeological assessment that was undertaken as part of the Environmental Impact Statement and Assessment for the establishment of the Gold Mine and which was obviously relied upon by the Minister and his Department when granting the Mining Lease. However, that sense of grievance does not negate the existence of the archaeological assessment. Nor does it disqualify reliance upon it by Mr Dutaillis in his consideration of the application for Licence Variation. In truth, the Applicant's complaint is that there has been no proper Aboriginal archaeological or anthropological survey of Mining Lease 1386. However, this complaint travels far beyond the legitimate bounds raised by an allegation of "failure to consider" impact on Aboriginal relics. 270. In these circumstances, I must hold that the Applicant has not established its allegation of failure on the part of the Fifth Respondent to consider the impact of the proposal on Aboriginal relics. 271. In so concluding, I should note that this issue has been litigated upon the common assumption that the impact of the authorised spray irrigation activity on Aboriginal relics was a relevant consideration in the Fifth Respondent's decision to grant the Licence Variation. 272. This assumption is presumably founded upon the provisions of the PEO Act, s 45(c) which requires the regulatory authority to take into consideration "the pollution being or likely to be caused….and the likely impact of that pollution on the environment". (the "environment" being broadly defined by the PEO Act). 273. In my adjudication, I have been content to proceed upon the common assumption adopted by the parties. 274. For the reasons given, the Applicant's claim fails. F. THE ALLEGATION OF FORMAL INVALIDITY OF THE APPLICATION FOR LICENCE VARIATION 275. According to par 18 of the Applicant's Amended Points of Claim, the sole basis for the Applicant's allegation of invalidity of the application for the Licence Variation is that "the application form did not contain the seal of the Company as was required by the form". 276. According to the recitals to the Licence Variation, the application for Licence Variation was made by, and in the name of the Fourth Respondent, being the holder of Licence No 005771. It was signed by Mr Marshall Lee (who had also signed the letter from the second Respondent which had submitted the application) who was employed as the Corporate Environment Manager of the Second Respondent at the time that the application was made. According to the application form, he signed it as "a person authorised by the licensee to sign the application form". 277. There was not affixed to the application the Common Seal of the Fourth Respondent (or any of the other Respondent Companies, all of which are interrelated). 278. According to the pleadings, it is common ground that the Fourth Respondent is a wholly owned subsidiary of the Second Respondent. Accordingly, there is nothing unusual in the application by the Fourth Respondent being submitted to the Fifth Respondent by the Second Respondent. 279. The legal effect of the absence from the application for the Licence Variation of the Common Seal of the Fourth Respondent is to be understood in the light of the requirements of the PEO Act, s 59(2) which provides as follows: An application for the variation of a licence may be made only by or with the consent in writing of the holder of the licence. 280. In response to the Applicant's claim that the absence of the Common Seal from the application for the Licence Variation invalidates the application (which presumably, in turn, invalidates the Licence Variation), the First to Fourth Respondents make the following submissions:- (i.) The PEO Act, s 59 does not require the application to be made under the seal of the company, being the holder of the licence. (ii.) The application bears an endorsement that it was signed by Mr Lee with the authorisation of the licensee; (iii.) The requirement for signature on the application form attracts the principle, enunciated in the Court of Appeal's decision in McRae v Coulton (1986) 7NSWLR 644, that another person may, as agent, sign on the other's behalf; (iv.) No question has been raised concerning Mr Lee's authority to sign the application on behalf of the Fourth Respondent—if it had been, the Applicant would have the onus of proof of want of authority, and no such proof has been tendered. 281. The Fifth Respondent, in supporting the submissions of the First to Fourth Respondents, relies upon the Corporations Law, s 126 and the Interpretation Act 1987, s 80. It also draws attention to s 58(3) of PEO Act which provides as follows: A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. 282. In my opinion, the Respondents' submissions should be accepted. The absence from the application of the affixing of the Common Seal of the Fourth Respondent, being the Company which is relevantly the "holder of the licence", did not invalidate the application for the following reasons:- (i.) The requirements of the PEO Act did not require an application for variation of a licence held by a company to be made under seal. Accordingly, the Fourth Respondent was entitled to make the application via its authorised agent cf The Corporations Law, s 126(1) (ii.) Although it is true that the application form (which I infer was issued by and used by the EPA administratively, but otherwise lacks statutory warrant) contains provision for the affixing of a Common Seal, in Section 9 of the Form (which is headed "Signature") that provision is facultative, not mandatory. (iii.) Unlike the case of an application for the issue of a licence (see s 53) or the case of an application for the transfer of a licence (see s 54), the PEO Act does not prescribe any form for an application for variation of a licence. It simply enables such an application to be made by the holder of the licence (s 58(3)) and restricts the making of such an application by stipulating that it "may be made only by or with the consent in writing of the holder of the licence" s 59(2)). (iv.) The application for the Licence Variation was relevantly "made" by the Fourth Respondent as the holder of the licence. (v.) Although the PEO Act contains no stipulation as to (i) the form of an application to vary the licence; and (ii) the signature required to be subscribed to any such application, the form employed in the present case relevantly constitutes "an application for variation of the licence" in terms of s 58(3) and insofar as the form required a signature and an indication of the authority to sign the form either as "(i) licensee; (ii) secretary (director of the licence; (iii) person authorised by the licence to sign the application form", Mr Lee's signature in the stated capacity of "a person authorised by the licence to sign this application form" satisfied the requirements for signature. 283. Even if, contrary to my conclusion, the application was assumed to be invalid, that result would not have invalidated the Licence Variation because the PEO Act, s 58(3) empowered the Fifth Respondent to vary the Licence without the necessity for application, and the Licence Variation would accordingly be legally sustainable on that alternative ground: cf the Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31. 284. For all the foregoing reasons, this claim made by the Applicant must fail. G. HAS THE APPLICANT ESTABLISHED A BREACH OF THE NP&W ACT, S 118D? 285. I have earlier recited the terms of s 118D—see par 35. 286. The expert evidence is not relevantly in dispute concerning the fact that the 10 ha forested area designated to receive the authorised spray irrigation activity, is relevantly "habitat" for at least two threatened species, in the same way that a vast area of similarly forested and vegetated land situate on Timbara Plateau (including undisturbed areas within Mining Lease 1386) constitutes "habitat". 287. However, as I have earlier noted, the expert evidence diverges upon the question as to whether that spray irrigation activity would significantly impact (adversely) upon that habitat—not that the divergence presents directly conflicting opinions because as I have earlier found, the Applicant's experts, Mr Milledge and Mr Ryan, principally expressed scientific doubts or concerns on the manner in which the Greenloaning flora and fauna impact assessment had been undertaken. 288. However, as I have earlier found, the obvious deficiencies in the Greenloaning assessment were cured by the more adequate and comprehensive evidence given by Ms Martin and Dr Robertson, which I have accepted. Their evidence also depends to a large degree upon the evidence of Dr Loch, whose opinions I have also accepted. 289. The effect of my evaluation and acceptance of the expert evidence adduced by the First to Fourth Respondents on the question of the environmental impact of the authorised spray irrigation activity needs to be translated, subject to any necessary modification or adaptation, to my consideration of the present question as to whether that activity will involve a breach of the NP&W Act, s 118D by virtue of it causing "damage" to "habitat of threatened species". 290. The need to so translate or to otherwise rework or revisit the evidence necessarily arises, because no separate expert evidence was given which specifically addressed in terms, the question posed by the alleged breach of the NP&W Act, s 118D. 291. This presents some evidentiary difficulty since the question posed by the allegation of breach of the PEO Act, s 58(6) is not the same question posed by the alleged breach of the NP&W Act, s 118D, although I fear that the parties may not have not fully appreciated this important difference. 292. Stated bluntly, my earlier finding that the authorised spray irrigation activity will not have a significant environmental impact is not the same as a finding that that activity will not cause damage to any habitat, although obviously, the former finding has relevance to the latter finding. 293. As a prelude to determining the question of the alleged breach of s 118D, there are a few relevant observations to be made concerning s 118D, namely— (i.) The term "damage" is not defined in the NP&W Act. Accordingly, it is to be interpreted, subject to context, according to its ordinary meaning. The Shorter Oxford Dictionary defines it (ie the noun "damage") as follows: 1. Loss or detriment caused by hurt or injury affecting estate, condition or circumstances. 2. Injury, harm. 3. A disadvantage; a misfortune, a pity. The primary Dictionary meaning was applied in Flaherty v Girgis (1985) 4 NSWLR 248 at 266 where McHugh JA, speaking of the word " damage " in a different context said " …it includes all the detriment, physical, financial and social, which the plaintiff suffers as a result of the tortious conduct of the defendant ". In the context of s 118D , I think that the first of the meanings given in the Shorter Oxford Dictionary is the most apt meaning to be ascribed to the word " damage "; (ii.) The term "habitat" is not defined in the Act, although the term "critical habitat" is (having the meaning given to it by the Threatened Species Conservation Act 1995). The term "habitat" is also defined in that other Act and that defined meaning provides the appropriate meaning to give the term the context of s 118D; and (iii.) The statutory defences provided in s 118D(2) to a prosecution for an offence against the section do not in terms include the carrying out of an activity authorised by an environmental protection licence granted under the PEO Act. 294. The "act" of the First to Fourth Respondents alleged to constitute the breach of s 118D or threatened breach of it (see the PEO Act, s 253) is the spray irrigation to the 10 ha of forested area, of treated waste waters, where that activity is conducted in accordance with the conditions of the Licence Variation. 295. Having regard to the totality of the expert evidence given in these proceedings which is relevant to the issues posed by the allegation of breach (or threatened breach) of the NP&W Act, s 118D, and to my evaluation of that evidence and in particular to my acceptance of the expert evidence adduced by the First to Fourth Respondents as both fully answering the scientific doubts and concerns raised by the Applicant's experts and as providing positive evidence of the insignificant environmental impact of the authorised spray irrigation activity undertaken in accordance with the conditions of the Licence Variation (including the initial six month trial period and the strict monitoring regime required to be undertaken during the trial period) I must inevitably conclude that the Applicant has not proven its allegation. 296. In so concluding, I have particularly relied upon the assessment of impact on flora and fauna jointly undertaken by Ms Martin and Dr Robertson (Exhibit H/1) and to the conclusions recorded in Chapter 6 which include the following: · There are three main fauna habitats represented in the study area, ie. dry sclerophyll forest, wet sclerophyll forest and fringe wetland. The forested habitats are relatively diverse structurally and would be expected to provide suitable habitat for a variety of fauna species, including a number of threatened species; · The majority of fauna species previously recorded for ML 1386 and the immediate vicinity would be likely to utilise the study are habitats at times. The use of the study area to some extent by some threatened fauna species would also be expected and this would be consistent with habitat usage at most locations on the Timbarra Plateau; · The proposed irrigation trial is not likely to cause significant adverse effects on the plant species and communities within the study area; and · As no significant impacts on threatened species populations or habitats are predicted, no further investigations are required in the form of a Species Impact Statement. 297. For all the foregoing reasons, I hold that the Applicant's claim fails. H. HAS THE APPLICANT ESTABLISHED A BREACH OF THE CONDITIONS OF MINING LEASE 1386? 298. Earlier in this judgment, I have particularised the four conditions of Mining Lease 1386 that the Applicant alleges to have been breached: see par 43. In this section, I simply refer to the conditions by their number. 299. I also identified the PEO Act, s 253 as the source of this Court's jurisdiction to entertain these allegations and gave some preliminary consideration to the question how such breaches, if established, could involve "a breach of the Mining Act 1992" and therefore fall within the jurisdiction created by s 253: see par 41. 300. The latter question has not been further explored in the arguments advanced in the proceedings, save for the submission made by the First to Fourth Respondents (and not responded to in the Applicant's argument) that the Mining Act, s 374A is the sole provision of that Act that is relevant to the question posed by the PEO Act, s 253 as to the meaning of the expression "a breach of another Act" (where that Act is the Mining Act). 301. The Mining Act, s 374A(1) is in the following terms: 374 A Contravention of conditions of mining title (1) The holder of any lease, licence or mineral claim under this Act must not, without reasonable excuse, contravene or fail to comply with any conditions of the lease, licence or claim. Maximum penalty: 100 penalty units 302. If s 374A be the only provision relevant to the concept of "breach of another Act" within the meaning of the PEO Act, s 253, Senior Counsel for the First to Fourth Respondents accordingly submits that the Court's jurisdiction is only attracted in relation to the alleged breaches of the conditions of Mining Lease 1386 if the Applicant proves— (i.) that each of such breaches relevantly constitutes a contravention of the Mining Act, s 374A to which end the Applicant must prove absence of "reasonable excuse"; and (ii.) that each breach is causing (or is likely to cause) "harm to the environment" (as that expression is defined in the PEO Act). 303. In the absence of argument, I would prefer to leave unanswered the question whether the concept referred to in the PEO Act, s 253 of "a breach of another Act" is confined to the case, where that other Act is the Mining Act, to a contravention within the meaning of the Mining Act, s 374A. 304. However, for present purposes, I am prepared to assume the correctness of the submission. 305. I now proceed to separately consider each of the conditions of Mining Lease 1386 that have been alleged to be breached. (i) Condition 32 306. A number of interpretive issues arise as to the proper meaning of the following terms, none of which is defined in terms in the Mining Lease— (i.) "contaminated waters" (ii.) "subject area" (iii.) "surrounding areas" 307. I think it reasonably clear that "contaminated waters" means waters containing any contaminants caused by the mining operations. As such, the "treated waste waters" to be disposed of by the authorised spray irrigation activity would qualify as "contaminated waters". 308. "Subject area", I think means the area comprising Mining Lease 1386 (ie some 400 ha). As such, the authorised spray irrigation would occur within "the subject area" in the sense that the areas designated to receive the spray irrigation are located within the area of the Mining Lease. 309. "Surrounding areas", I think, clearly refers to areas surrounding the area of Mining Lease 1386. 310. The expert evidence indicates that the irrigated treated waste waters will principally be contained within the designated irrigation areas. However, treated waste waters not otherwise spent by the processes of transpiration and evaporation, obviously have the capacity to travel by entering the groundwater system and the natural drainage lines leading to nearby Nelson Creek and its tributary. 311. However, the overwhelming conclusion of the expert evidence which I have accepted, is that there will be insignificant adverse impact on the environment caused by the licensed irrigation activity. 312. Accordingly accepting that some residual part of the irrigated treated waste waters are discharged from the Mining Lease area onto surrounding areas (eg the tributary to Nelson Creek) and assuming that such result involves a breach of Condition 32, two further facts must be established in order that this Court's jurisdiction under the PEO Act, s 253 jurisdiction be attracted namely: (i.) the result is "without reasonable excuse" within the meaning of the Mining Act, s 374A; and (ii.) the result is causing or likely to cause "harm to the environment". 313. In my judgment, these additional matters have not been established, with the consequence that the Court's jurisdiction under the PEO Act, s 253 is not attracted. 314. In so concluding, I am satisfied that such a physical result (as contemplated by my findings) is not "without reasonable excuse" within the meaning of the Mining Act, s 374A by virtue of the result being authorised by the Licence Variation. 315. For similar reasons, I am satisfied that the result, being expressly sanctioned by the Licence Variation, cannot reasonably be held to "cause harm to the environment" as that expression is very broadly defined in the PEO Act. In particular, the existence of the Licence Variation sanctioning the result, in my opinion, necessarily excludes, for reasons of context and subject matter, the extended definition of "harm to the environment", namely "includes any act or omission that results in pollution" cf the PEO Act, s 122 which provides a statutory defence to a "water pollution" charge on the basis that the pollution "was regulated by an environment protection licence and the conditions of the licence were not contravened". 316. For all the foregoing reasons, I hold the alleged breach of Condition 32 is beyond this Court's jurisdiction conferred by the PEO Act, s 253. (ii) Condition 91 317. The Applicant adduced no evidence in support of its allegation that this condition had been breached. 318. On the other hand, Mr Lee has given evidence on the nature of the construction of the stormwater dam and the raw water pond (including plastic lining to both) and of his understanding that Condition 91 has been complied with. He was not challenged on this evidence and I accept it. 319. It follows that the Applicant has not proved its allegation of any relevant breach of Condition 91. (iii) Condition 101 320. The Applicant relies upon the evidence of Mr Peter Sandford, a nearby occupier to the Gold Mine and who uses water from Nelson Creek, that he was not consulted by the First to Fourth Respondents about the licensed spray irrigation activity. 321. The evidence was not challenged and I accept it. 322. Similarly, Mr Lee's evidence of consultation about the spray irrigation activity with the relevant public authorities and nearby property owners and occupiers, Mr and Mrs Petrie, is not challenged and I accept it. 323. The First to Fourth Respondents submit that the evidence does not establish that the spray irrigation activity was relevantly a "major development of the site". Nor does it establish what is an appropriate Community Liaison Programme. 324. I am satisfied that there was no appropriate Community Liaison Programme carried out by the First to Fourth Respondents in respect of the spray irrigation activity. Without seeking to exhaustively define such a Programme, I would expect it to be something like the Community Environmental Report issued by the Mining Company in May 1999 at the time mining operations were commenced (which was referred to in Mr Dutaillis' evidence). 325. However, even assuming a relevant breach of Condition 101, the breach is not, in my opinion, within the jurisdiction conferred upon the Court by the PEO Act, s 253 because it has not been established that such a breach has caused, or is likely to cause, "harm to the environment". (iv) Condition 102 326. The First to Fourth Respondents tendered a letter dated 4 March 1998 from the Department of Mineral Resources (Exhibit F/1) purporting to suspend Condition 102 from 4 March 1998 until 8 April 2006, subject to the following condition: The lease holder must ensure that the total storm capacity within the pregnant liquor storage, the barren liquor storage and the storm ponds is not less than 140 ML, or at least 47.5 ML storage capacity for each 10 hectares of heap leach pad site developed. 327. Despite this evidence, it is significant that in all the other evidence given in the proceedings, the First to Fourth Respondents have always referred to the requirement in terms of the original Condition 102. 328. In particular, Mr Lee, whose affidavit sworn 18 July 2000, provides a detailed account of the history of dam storage capacity at the Mine site, and the problems experienced in maintaining it, specifically refers to "the important condition" that a 1 in 400 year 72 hour design storm capacity be maintained in the storm water dam. 329. In these circumstances, I am unable to accept the version of Condition 102 that is suggested by Exhibit F/1. The First to Fourth Respondents have not relied upon it in their sustained dealings with the Department of Mineral Resources and the other public authorities (including the EPA) since it was announced in September 1999 that the Gold Mine would cease production and approval was sought for the Mine to be placed on a "care and maintenance contingency basis". 330. More importantly, Mr Lee, in his evidence, accepts the current relevance of Condition 102 in its original form (being the form that I have recited in par 44). 331. In my judgment, the evidence adduced by the First to Fourth Respondents demonstrates that for a time late in 1999 and in 2000, the storm water capacity of the dams located on the Mine site fell below the required capacity. 332. This fact was frankly conceded by the First to Fourth Respondents in their representations to the Department of Mineral Resources for its approval of the six month trial irrigation proposal to alleviate what was seen to be an emergency situation in the light of the experience of higher than median rainfall at the Mine site during the wet season of 1999 and in the light of the recent fresh calculations of water balance at the Mine site which had revealed earlier predictions had significantly underestimated the volume of rainfall and of stormwater events. 333. Accordingly, I am satisfied, even on the First to Fourth Respondent's own evidence, that there was a relevant breach of Condition 102 at some times in the past. 334. This brings me to consider the two further matters essential to be established in order to enliven the Court's jurisdiction—namely whether such a breach relevantly constitutes a contravention of the Mining Act, s 374A(1) and whether the breach has caused or is likely to cause "harm to the environment" within the meaning of the PEO Act, s 253. 335. As to s 374A, I have earlier noted the First to Fourth Respondent's submission that the Applicant has the onus of establishing that the breach occurred "without excuse". 336. But irrespective of where the onus of proof on this issue lies, the First to Fourth Respondents submit that as a "reasonable excuse" has been shown to exist in that (according to par 20 of Mr Lee's affidavit) there was an "unexpected accumulation of excess process water in the storm water dam caused by a higher than normal rainfall at the Mine site during 1999". 337. I take it that it was the existence of such an accumulation of excess process waters on the site which materially diminished the stormwater capacity of the dams located on the Mine site so that the absolute capacity required by condition 102 was not maintained. Even if, as I am inclined to think, that those physical conditions did not in themselves constitute "a reasonable excuse" for failing to maintain the absolute storage capacity required by condition 102,. it has not been established that "harm to the environment" was relevantly caused by virtue of the breach of Condition 102. This want of proof carries the consequence that the breach is beyond the Court's jurisdiction as conferred by the PEO Act, s 253. 338. Since there was no evidence of continuing breach of Condition 102 at the time of hearing (the evidence of breach having been confined to the earlier periods I have mentioned), the extended concept in the PEO Act, s 253 of "likely to cause environmental harm" is not relevant in the present case. 339. In these circumstances, I am driven to conclude that the breach of Condition 102, though established, is not within the Court's jurisdiction. 340. Even if, contrary to my conclusion, the Court possessed jurisdiction in respect of the breach, in the absence of evidence of continuing breach or likely harm to the environment, it is difficult to appreciate what remedy the Court could grant within the power conferred by s 253(4). In this respect, a declaration of a past breach of Condition 102 (without any continuing consequences) would appear to be wholly lacking in utility, even assuming that solely declaratory relief, is within the remedy power conferred by s 253(4). 341. For all the foregoing reasons, I find that the Applicant has failed to establish any entitlement to relief in respect of any or all of its allegations of breaches of conditions of Mining Lease 1386. I. DISCRETIONARY CONSIDERATIONS 342. Since I have held that the Applicant has failed to establish any relevant breaches of the law that have been alleged, I do not think it necessary for me to consider the discretionary matters raised by the First to Fourth Respondents in defence of the Applicant's claims, other than to say that I have not been persuaded that, absent the authorisation by the Licence Variation, the First to Fourth Respondents would nonetheless be entitled to undertake the spray irrigation activity. 343. As I have earlier mentioned, that activity apparently has not received development consent under the EP&A Act, presumably because the First to Fourth Respondents rely upon the Mining Act 1992, s 74. However, whether that provision extends to the spray irrigation activity has not been considered in the present case and I express no view on the question. J. THE APPLICANT'S MOTION TO RE-OPEN ITS CASE 344. As previously noted (see par 19), the Applicant, by Motion filed 16 January 2001 sought leave to reopen his case for the purpose of allowing him to adduce evidence that the Fourth Respondent in carrying out the spray irrigation activity had breached relevant conditions of the Licence Variation. 345. Additionally, the Motion sought an interim injunction against the First to Fourth Respondents' restraining them from carrying out any activity pursuant to the Licence Variation. 346. The relief claimed in the Applicant's Motion was opposed by all Respondents. In particular, they vigorously opposed the reopening of the case to allow the Applicant to conduct an entirely different case from that waged in the proceedings, namely to now allege breach of conditions of the Licence Variation where the Applicant's whole case in the concluded hearing, had been that the Licence Variation was invalid. 347. In my judgment, it is far too late in the day to allow the Applicant to reopen his case to allege a breach of the Conditions of Licence Variation. If there has been a breach, fresh proceedings can be taken in respect thereof. 348. Likewise, it is also far too late to entertain the Applicant's claim to interim injunction since the six month trial of the spray irrigation activity has now expired (assuming that the trial began soon after I had discharged from 25 August 2000 the interim injunction that I had granted earlier in the proceedings). 349. In the course of argument on the Applicant's Motion, an entirely different tack was taken by the Applicant. He said that I would allow the reopening in order to allow the Applicant to adduce evidence of the actual environmental impact of the spray irrigation activity, which would be preferable to the evidence adduced at the trial of estimated or predictable environmental impact. 350. Again, the Respondents vigorously opposed the application, claiming that the evidence would not be relevant to the issue posed by the PEO Act, s 58(6) because that issue required assessment of the environmental impact of the spray irrigation activity authorised by the Licence Variation ie carried out in accordance with the conditions imposed on the Licence Variation. 351. Although there is much force in the Respondent's submission, I am prepared to assume that the evidence sought to be led by the Applicant has potential relevance to be received in accordance with the well known dictum that "where facts are available they are to be preferred to prophecies". 352. However, as was pointed out by Hutley JA in Sinclair v Graham (1984) 2 NSWLR 253, that dictum has to be applied in the light of the need to ensure finality of litigation. 353. In the present case, where the question of environmental impacts of the licensed spray irrigation was the subject of extensive expert evidence and where the statutory provision (the PEO Act, s 58(6)) specifically required an assessment of the prospective environmental impacts of the approved activity, no good or compelling purpose would be served by entertaining evidence as to the actual environmental impact of the spray irrigation activity (particularly in circumstances where the party wishing to reopen the case to adduce that evidence is also alleging that the spray irrigation activity has been undertaken in breach of the relevant conditions of the Licence Variation, which would inevitably open up a wider enquiry). 354. Accordingly, as a matter of discretion, I must refuse all of the relief claimed in the Applicant's Motion. K. CONCLUSIONS AND ORDERS 355. For all the foregoing reasons, I make the following orders— 1. The Applicant's Motion filed 16 January 2001 for leave to reopen his case is dismissed. 2. The relief claimed in the Applicant's aforesaid Motion is refused. 3. The Applicant's Class 4 application is dismissed. 4. The question of costs is reserved. ANNEXURE "B" ISSUE ENVIRONMENTAL CONCERN FOLLOW UP ACTION DECISION RESOLUTION/ACTION I requested further advice from TGM regarding the characteristics of residual cyanide in the irrigation water (Exhibit DD-15). I concluded that the very low levels of stable cyanide in irrigation water were not a significant threat to environment. I concluded that the guiding licence commitment of no cyanide from premise was maintained. Residual cyanide levels in irrigation water Possible toxicity in the environment I received advice (Exhibit DD-23, Pg 7, para 1) that analysis of samples taken from the raw water pond indicated no detectable free or WAD cyanide and average levels of total cyanide of 0.023 mg/l in stable cyano-complex with cobalt. I requested and received advice from EPA Science regarding toxicity of cyanide. I noted that the ANZECC guideline to protect aquatic ecosystems is 0.005 mg/l free cyanide (Exhibit DD-17). I included a condition in the Variation that prohibited irrigation that caused runoff or ponding in the forest area. I noted advice regarding possible natural sources of cyanide in environment (Exhibit DD-17) and that analysis by TGM (Exhibit DD-23, Pg11. Para 6) of leachate from soil samples indicated levels of total and WAD cyanide. I ensured that advanced irrigation practices were included in the proposals. I ensured that the monitoring requirements of the Variation for surface and groundwater included analysis for all forms of cyanide. I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence. I checked "as built" details for Raw Water Dam. I was satisfied that transfer of the treated stormwater to the raw water pond was the best environmental outcome. I confirmed that the raw water dam has single HDPE liner (Exhibit DD-5a). I concluded that the low levels of residual elements in the water presented no significant risk to the environment. Treated wastewater in raw water dam Possible overflows from the raw water and to surface waters and leakage to groundwater I reviewed the analysis of the quality of water transferred and stored in Raw Water Dam (Exhibit DD-23, Pg 6). I ensured that the discharge conditions for the Raw Water Dam remained in force in the Licence. I noted the direction from Dept of Mineral Resources on 22 March 2000 to Ross Mining to transfer water from the Storm Water Dam to the Raw Water Dam (Exhibit DD-14a). I concluded that no further action was required. I noted that TGM had not breached any condition of the Licence. I concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence. I noted the following reports and assessments: · Greenloaning Biostudies Pty Ltd, s5A Assessment of impacts of the trial irrigation Area on Flora and Fauna, March 2000 (Exhibit DD-14); · Dept of Mineral Resources "Environmental Impact Assessment Report" for the Pt 5, EP&A Act development application to grant the Mining Lease Applications No's 4 and 5 Inverell (ML 1386) (Exhibit DD-39a); · Decision of Minister for Mineral Resources to grant Mining Lease Application 4 & 5 Inverell and conditions of Authority for ML 1386 especially noting the "special conditions" included in the Mining lease in regard to fauna & flora (Exhibit DD-39a, "Decision of the Minister for Mineral Resources"); · NPWS Director General's Recommendations Report for the proposed Poverty Point Timbarra Gold Mining Project to Minister for the Environment regarding the Minister for Mineral's decision to grant the Mining Lease Applications Nos' 4 and 5 Inverell (Exhibit DD-39a, Appendix No. 4); I concluded on the basis of the material I reviewed, that the variation would have no significant effect on threatened species, populations or ecological communities or their habitats. · Threatened Species Management Plan, Timbarra Gold Project (Exhibit DD-39b, Appendix H); I ensured that extensive monitoring and reporting of soils, vegetation, surface and gorundwaters would be included in the trial. Impacts on threatened species Risks to threatened species populations or ecological communities or habitats. · Timbarra Gold Project, Mine Lease Extension, Species Impact Statement, March 1999ERM Mitchell McCotter Pty Ltd (Exhibit DD-39). I ensured t hat benchmark groundwater and soils characteristics were analysed before the trial. I noted that NPWS determined in their recommendations to the Minister for the Environment that the Fauna Impact Statement prepared for the Timbarra Gold Mining Project (Pt 5, EP&A Act development application to grant the Mining Lease Applications Nos' 4 and 5 Inverell) was considered a Species Impact Statement under the transitional provisions for the Threatened Species Conservation Act (1995) and the Threatened Species Conservation (Savings and transitional) regulation 1996 (Exhibit DD-39a, Appendix No.4, Pg2). I supported NPWS advice that the monitoring frequency for the Threatened Species Management Plan would continue at the mining site. I noted the details proposed for irrigation operations (eg irrigation scheduling, monitoring of soil moisture) (Exhibit DD-10, Pg 10). I therefore concluded that this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence. I noted irrigation would be scheduled to ensure it did not cause runoff from the proposed irrigation in the forest area (Exhibit DD-9, Pg 5). I noted NPWS advice in their letter to Dept of Mineral Resources dated 5 April 2000 (Exhibit DD-18). NPWS raised no concerns in regard to threatened species impacts from the proposal. NPWS did indicate a preference for irrigation within cells 11-20 and that the trial be for 4ha with a possibility of extension provided Dept of Mineral resources was satisfied with monitoring results. I was aware that threatened species monitoring program for the mine included frogs. I was aware that the frog monitoring sites included sites downstream of the proposed irrigation areas. I noted the details of the vegetation survey program for the forest irrigation area (Exhibit DD-32, Pg 7). Further analysis of irrigation water was requested and carried out (Exhibit DD-15) I requested characterisation and benchmarking of soils, surface and groundwater (Exhibit DD-15). I requested and received advice from EPA Waters and Catchments (Exhibit DD-14). I reviewed soils consultants reports, especially in regard to effects of elevated salts and nitrogen leaching to groundwater in the cells 11-20 area and nitrogen cycling in the forest areas (Exhibits DD-9, DD-10, DD-11, DD-11a, DD-13, DD-14, DD-19, DD-22, DD-23, DD-27. I concluded that nitrogen and total dissolved solids might leach to groundwaters. I referred to existing ANZECC water quality guidelines for protection of aquatic ecosystems and agricultural water use (Exhibit DD-40a). I concluded that runoff containing elevated levels of total dissolved solids and nitrogen might be recorded at the discharge point to the Cell 11 Dam. Elevated levels of total dissolved solids and nitrogen in irrigation water Possible impacts on flora & fauna. I reviewed advice contained in consultant's reports for the proposals especially the Landloch Report (Exhibit DD-10), Dobos & Ass reports (Exhibits DD-11, DD-11a), and First and Second Proposals (Exhibits DD-9, DD-23). I ensured that extensive monitoring and reporting of soils, vegetation, surface and groundwaters would be included in the trial. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. In ensured that existing monitoring programs including stream condition surveys would continue. I ensured that conditions of the Variation placed limits on the quality of water to be irrigated and the quality of water that could be discharged from the Cell 11 Dam. Possible impacts on soils and the quality of surface and ground waters. I reviewed pollution control proposals for the cell 11-20 area (Exhibit DD-35). I ensured that discharges would not be directly to waters. I requested investigations to optimise the catchment for the cell 11-20 area and to investigate practical measures to optimise possible re-use of nitrogen in the cell11-20 area. I ensured that conditions of the licence variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas. I concluded that even though levels of total dissolved solids and nitrogen might be elevated for some periods during the trial this issue would not cause a significant increase in environmental impact of the activity controlled or authorised by the Licence. I noted proposals for irrigation operations and monitoring of soils, vegetation, surface and groundwater to complement existing monitoring programs (Exhibit DD-27). I requested a review of irrigation practices to maximise the opportunity for evaporation and release of nitrogen to the atmosphere. I noted the trial was for six months involving a target of 6ML per month (Exhibit DD-9, Pgs 1 & 3). I noted that, assuming an average application of 6ML per month over the total area of 18.1 ha, the proposals involved irrigation of approximately 2 ML per hectare. I concluded that elevated levels of total suspended solids might be recorded at the discharge point for the Cell 11 Dam. I was aware that prior to that time monitoring of total suspended solids and stream condition downstream of other sediment dams had indicated no significant impact in streams likely to be affected by activities on the mine site from sediment. I requested and receive investigation reports from TGM for the unused heap leach cells 11-20 area regarding water balance studies including the irrigation trial, storm runoff calculations and investigation of sediment dam sizes at cell 11 (Exhibits DD-19, DD-22, DD-23, DD-34, DD-35). I ensured that the environment protection standard established in the Licence for sedimentation dams discharging directly to waters was maintained for discharge point number 007, the Site 3 Dam. Elevated levels of total suspended solids Possible impacts on flora & fauna. I requested investigations to optimise the catchment for the cell11-20 area and practical measures to optimise possible treated water re-use in the cell11-20 area and minimise sediment run-off. I concluded that the standard for discharge from the Cell 11 Dam (discharge point number 006) could be different as discharge was not direct to waters and that it was not practical to construct a storage to meet the 1:20 year 72 hour storm criteria. I requested investigation of alternative runoff arrangements for the cell 11-20 area attempting to spread the runofff from the area (Exhibit DD-24). I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I ensured that strict monitoring programs would continue. I concluded that even though levels of total suspended solids might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence. I concluded that slightly elevated levels of aluminium (ie above ANZECC guidelines) might be recorded at the discharge point of Cell 11 Dam and some dissolved ions may leach to groundwater. I requested further analysis of filtered and unfiltered water samples to ensure that the total characteristics of the water were known (Exhibit DD-15). I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. Elevated levels of metals in irrigation water Possible impacts on flora & fauna. I noted that the ANZEC water quality guidelines for metal concentrations to protect aquatic ecosystems and for agricultural use (Exhibit DD-40a). I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. Possible impacts on soils and the quality of surface and ground water. I reviewed the consultant's reports on the First and Second Proposal (Exhibits DD-9, DD10, DD-11, DD-11a, DD13, DD-22, DD-23, DD-27, DD-34, DD-35) in regard to the fate metals in the irrigation water. I ensured that benchmark groundwater and soils characteristics were analysed before the trial. I ensured that strict monitoring programs would continue. I concluded that even though levels of aluminium and dissolved ions may be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity controlled or authorised by the Licence. I researched material in the current and draft ANZECC water quality guidelines on molybdenum for protection of aquatic ecosystems and agricultural use (Exhibit DD-40a). I concluded that slightly elevated levels (ie above ANZECC guidelines) of molybdenum might be recorded at the discharge point of the Cell 11 Dam. I noted that the levels set in the ANZECC guidelines were set to protect grazing livestock and that a cumulative contaminant loading limit was not set in the draft guidelines due to lack of soils data and toxicity benchmarks. I ensured that construction specifications for the Cell 11 Dam included downstream works to maximise spread of any overflows to forest areas to facilitate dilution, absorption and re-use. Elevated levels of molybdenum in irrigation water Possible fate in the environment and any environmental impacts. I note that there is no current ANZECC guideline for molybdenum to protect aquatic ecosystems but the new draft guidelines indicate a trigger value of 0.006 mg/l. I ensured that conditions of the Variation did not allow irrigation in the forest area that would cause surface runoff or ponding. I requested characterisation of the soils in the irrigation areas for molybdenum (Exhibit DD-15). I ensured that benchmark groundwater and soils characteristics were analysed before the trial. I noted that the agricultural use ANZECC guideline was based on levels of 10mg/kg and irrigation for at least 20 years (Exhibit DD-40a). I ensured that strict monitoring programs would continue. I concluded that even though levels of molybdenum might be elevated for some periods during the trial this issue would not cause a significant increase in the environmental impact of the activity authorised or controlled by the Licence. 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