Barrick Australia Ltd v Williams

(2009) 74 NSWLR 733; [2009] NSWCA 275

NSW Court of Appeal

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Interrogate

Catchwords

1. Environment and Planning
2. › Development control
3. › Modification of development approval
4. › Scope of power to modify under Part 3A
5. › Whether assessment of scope of modification request is for the Court or the Minister
6. › Whether jurisdictional fact or evaluative judgment for decision-maker
7. › Environmental Planning and Assessment Act 1979 (NSW), s 75W
1. Administrative Law
2. › Jurisdictional fact
3. › Preconditions to exercise of statutory power
4. › Whether precondition requires objective determination by court or satisfaction of decision-maker
5. › Evaluative judgment
6. › Whether matters requiring investigation and evaluative judgment indicate legislature intended decision-maker's satisfaction as jurisdictional fact

Quick Take

The scope of a modification request under s 75W of the EP&A Act is a matter for the Minister's evaluative judgment, not objective court determination. A court challenge to a modification request must demonstrate that the Minister's acceptance of the request as falling within s 75W was not reasonably open, rather than the court undertaking its own assessment of whether the request constitutes a 'modification'. Sackville AJA went further, holding that even an overreaching request does not preclude the Minister from exercising the modification power.