Williams v NSW Minister for Planning [2010] NSWLEC 202

Land and Environment Court of New South Wales

CITATION : Williams v NSW Minister for Planning [2010] NSWLEC 202

APPLICANT: Neville "Chappie" Williams

PARTIES : FIRST RESPONDENT: NSW Minister for Planning

SECOND RESPONDENT: Barrick (Cowal) Ltd

FILE NUMBER(S) : 40890 of 2009

CORAM: Biscoe J

KEY ISSUES: EVIDENCE - PRACTICE AND PROCEDURE :- tender of document rejected where irrelevant to any pleaded issue and where other side would be prejudiced if it were to be admitted in support of a new issue.

DATES OF HEARING: 13 September 2010

EX TEMPORE JUDGMENT DATE : 13 September 2010

APPLICANT: Mr A Oshlack, agent SOLICITORS n/a

FIRST RESPONDENT: LEGAL REPRESENTATIVES: Ms A Mitchelmore, barrister SOLICITORS Department of Planning

SECOND RESPONDENT: Mr N J Williams SC with Mr C R Ireland, barrister SOLICITORS Blake Dawson

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BISCOE J

13 September 2010

40890 of 2009

WILLIAMS v NEW SOUTH WALES MINISTER FOR PLANNING & ANOR

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a ruling on an objection to evidence on the first day of the hearing of judicial review proceedings challenging the validity of modifications to a development consent for the Cowal Gold Mine. 2 The applicant has tendered a document entitled "Cowal Gold Project Indigenous Archaeology and Cultural Heritage Management Plan" of October 2003. The respondents object to the tender. They say that no prior notice was given that the applicant proposed to tender the document, that it is irrelevant to any of the issues and that they would be prejudiced if it were to be admitted into evidence in support of a new issue. 3 There were directions given some time ago for the filing and service of evidence. This document was not filed and served. The respondents' counsel saw it for the first time this morning when it was tendered. This document is referred to in the second respondent's (Barrick's) statement of environmental effects (at para 6.9) and in the Department of Planning's assessment report (at p 9) that were before the Minister for Planning (the first respondent), both of which are in the respondents' bundle of documents which it proposes to tender shortly. Barrick's statement of environmental effects, after referring to this document, says: "The proposed modification would avoid registered Aboriginal heritage sites. As such, the proposed modification would not change the potential impacts on Aboriginal heritage described in the EIS for the original CGM." 4 The Department of Planning's assessment report, after referring to this aspect of the statement of environmental effects, says that the Department of Planning and the Department of Environment, Climate Change and Water are satisfied that additional impacts on Aboriginal cultural heritage as a result of the modification would be minimal. The applicant says that the statement that the proposed modification would avoid registered Aboriginal heritage sites is false and that in fact it would impact upon three such sites. 5 The applicant says that the document is relevant to issues 1(c) and (d) of the statement of issues for trial agreed by the respondents, which has been filed and which says: "1. In deciding to grant modifications 7 and 8, pursuant to s 96(1A) of the Environmental Planning and Assessment Act 1979, did the Minister, by his delegate, fail to consider: