NSW Caselaw
Reported Decision: 168 LGERA 4374 NSWLR 733[2009] ALMD 5509
New South Wales Court of Appeal
CITATION: BARRICK AUSTRALIA LTD v WILLIAMS [2009] NSWCA 275
HEARING DATE(S): 1 July 2009
JUDGMENT DATE: 3 September 2009
JUDGMENT OF: McColl JA at 1; Basten JA at 2; Sackville AJA at 57
(1) Allow the appeal and set aside the judgment and orders of the Land and Environment Court made on 13 February 2009.
DECISION: (2) In lieu thereof order that the amended summons be dismissed.
(3) Direct that if any party seeks a particular order as to costs in this Court, or in the Court below, it should file a notice of motion, together with submissions in support of any proposed order within 14 days of this judgment, failing which there will be no order as to the costs of proceedings in this Court or in the Land and Environment Court.
CATCHWORDS: ENVIRONMENT AND PLANNING – development control – request for modification by Minister of terms of development approval – scope of power to modify limited by requirement that request fall within terms of statutory language conferring power – such requirement constituting precondition to evaluative judgement – whether Court to undertake that assessment – Environmental Planning and Assessment Act 1979 (NSW) s 75W - WORDS AND PHRASES – "modification of approval" – "jurisdictional fact"
LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW), ss 5, 75B, 75F-75I, 75W, 75X, 82, 96; Pts 3A, 4
CATEGORY: Principal judgment
Colonial Bank of Australasia v Willan (1874) 5 PC 417 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26; 147 CLR 297 Currey v Sutherland Shire Council [2003] NSWCA 300; 129 LGERA 223 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 CASES CITED: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13 Sutherland Shire Council v Finch (1970) 71 SR(NSW) 315 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 The Owners of the Ship Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 Woolworths Ltd v Pallas Newco Ltd [2004] NSWCA 422; 61 NSWLR 707
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