Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3)

[2015] NSWLEC 75

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Hearing dates:	5, 6, 7 and 8 May 2014
Date of orders:	08 May 2015
Decision date:	08 May 2015
Jurisdiction:	Class 4
Before:	Pepper J
Decision:	Amended summons dismissed. Applicant to pay respondents’ costs. Exhibits to be returned.
Catchwords:	JUDICIAL REVIEW: whether development consent spent such that it could not be subsequently modified – whether exercise of discretionary power to modify a development consent gives rise to a jurisdictional fact that development as modified is substantially the same development as the original consent – whether the council erred by comparing the proposed modified development with the development as earlier modified and not the development the subject of the original consent – whether the decision to approve the modification manifestly unreasonable – whether appropriate to grant injunctive relief to prevent any reliance on the modified approval – amended summons dismissed.
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 76A, 80(3), 83, 91, 96, 106(a), 109B, 124 Environmental Planning and Assessment Model Provisions 1970 Environmental Planning and Assessment Model Provisions 1980 Land and Environment Court Act 1979, s 56A Mining Act 1992 Parkes Local Environment Plan 2012 Parkes Local Environmental Plan 1990
Cases Cited:	Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Australand Holdings Ltd v Hornsby Shire Council (1998) 98 LGERA 312 Bardsley-Smith Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 73 Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41 Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81; (2009) 167 LGERA 134 Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 348 Coalcliff v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 320 Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Lesnewski v Mosman [2005] NSWCA 99; (2005) 138 LGERA 207 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Local Government v South Sydney City Council [2012] NSWCA 288; (2002) 55 NSWLR 381 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Parramatta City Council v Hale (1982) 47 LGERA 319 Parramatta City Council v Pestell (1972) 128 CLR 305 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Reid’s Farm Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198; (2013) 200 LGERA 1 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 Willoughby v Dasco Design (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 Winns v Director-General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199; (2001) 116 LGERA 378
Category:	Principal judgment
Parties:	Agricultural Equity Investments Pty Ltd (Applicant) Westlime Pty Ltd (First Respondent) Parkes Shire Council (Second Respondent)
Representation:	Counsel: Mr I Hemmings SC with Ms A Hemmings (Applicant) Mr C Ireland (First Respondent) Ms H Irish (Second Respondent) Solicitors: Hones La Hood (Applicant)  Ashurst (First Respondent) Pikes and Verekers Lawyers (Second Respondent)
File Number(s):	41125 of 2012

TABLE OF CONTENTS

Topic	Paragraph
AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief	[1]
The Granting of the 1988 Consent	[5]
Events Subsequent to the Granting of the 1988 Consent	[17]
The 2009 Modification Approval	[35]
The 2012 Modification Approval	[50]
Issues for Determination	[62]
Legislative Framework Governing the Proceeding	[64]
Evidence of the Parties	[76]
Was the 2009 Approval Invalid Because the 1988 Consent Was Spent?	[91]
The Principles of Construction of Development Consents	[93]
The 2009 Modification Approval is Valid	[94]
Did the Council Have Regard to the 1988 Consent When Determining the 2012 Modification Approval?	[121]
Whether s 96(2)(a) of the EPAA Gives Rise to an Objective Jurisdictional Fact as to the Council’s Satisfaction that the Developments Were Substantially the Same	[139]
Whether the Decision to Grant the 2012 Modification Approval Was Manifestly Unreasonable	[165]
Legal Principles Governing the Power to Modify in s 96(2) of the EPAA	[173]
Discretion to Order Relief	[188]
Orders	[198]

Judgment

AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief

1. The following events, drawn from the four volumes of documentary materials relied upon by the parties, and a statement of agreed facts ordered by the Court, are uncontentious.

2. The applicant, Agricultural Equity Investments Pty Limited (“AEI”), is the holder of exploration licence 7242 (“EL 7242”). The first respondent, Westlime Pty Limited (“Westlime”), is the registered proprietor of land at London Road, Parkes, which is known as the ‘London-Victoria Mine’ (“the mine”). The area of the mine is 280ha. EL 7242 covers a broad area of land, including the land within which the mine is situated.

3. From about the late 1800s the mine was worked as a gold mine, with those mining activities ceasing in the 1950s. In the late 1980s BHP Gold Mine Limited (“BHP”) sought to carry out open cut gold mining on the land at the mine, together with associated ore treatment to extract gold metal products.

4. Accordingly, on 29 April 1988, BHP lodged with the Parkes Shire Council (“the council”) a development application to carry out a gold mining operation at the mine (“the 1988 DA”). The proposal was described by the council in a letter of notification to relevant authorities and interested persons as:

The proposal involves the establishment of an open cut mine on the site of the former London/Victoria mine Workings, south of Parkes, adjacent to Shire Road No. 47, known as the London Road. Associated with the open cut mine will be overburden storage area, a process residue storage dam, water catchment dams, office and amenities building and a carbon-in-pulp treatment plant to extract gold from the ore, heap leach treatment for some of the ore may be established at a later date.

It is proposed to extract up to eleven million tonnes of material over the projected five year life of the mine.

The Granting of the 1988 Consent

5. The 1988 DA was accompanied by an Environmental Impact Statement for the Proposed London-Victoria Mine Parkes, NSW prepared by BHP (“the 1988 EIS”) and a Summary of Environmental Impact Statement for the London-Victoria Gold Mine Parkes, NSW prepared by BHP, both dated May 1988 (“the 1988 EIS Summary”).

6. The 1988 EIS Summary explained that both the heap leach method of gold ore processing and carbon-in-pulp (or CIP) method would be used, and provided that "ore from additional reserved [sic] in the London-Victoria project area or other mining operations may also be processed at the CIP plant at the site". It provided that the processing plant would crush, screen, grind and mill the gold ore prior to treatment in the leach tanks of the CIP plant, and that the operation of the processing plan would be 24 hours per day, seven days per week.

7. With respect to the project outline, the 1988 EIS stated that “the life of the project is expected to be 4 years”. An extension of this time was stated to be “dependent on whether additional ore reserves are located and the continuing market for gold”. It was noted that additional open cut reserves may be found on the lease thereby extending the life of mine, and that it was “also possible that an underground mine may be developed to recover deeper and higher grade ores”. In this regard, the 1988 EIS stated that “ore from additional reserves in the London-Victoria project area or other mining operations may also be processed by the C.I.P. plant at the site.”

8. The 1988 EIS described the project as involving the “mining of gold ore…by open cut methods”. The "environmental effects and project justification” were that “the land use on the site will change for the period of the project from rural to mining and mining purpose. At the completion of mining the land will be restored and made available for rural purposes again”. Further, it explained that the gold bearing ore recovered from the open pit mine would be treated in a CIP processing plant and that this process has been determined to be the "most suitable for the gold ore on the site".

9. With respect to the proposed surface facilities, the 1988 EIS noted that because of the "relatively short period of mining all structures will be designed to be demountable to allow site clearance and rehabilitation at the end of the mine life".

10. In relation to the final void, the 1988 EIS summary stated that "given the mine life, possible variations in the gold market and other considerations, it is not possible to accurately predict the final location and dimensions of the void”. However, at an appropriate time prior to the cessation of the open cut mining, it was anticipated that there would be discussions with the relevant authorities as to the most appropriate use of the void.

11. In section 6.2 “Land-Use”, the 1988 EIS stated that:

Other areas of the project site will change from grazing land or cropping land to mining purposes for the life of the project, a period of up to 10 years. Progressive rehabilitation will gradually revegetate disturbed areas during the life of the project. At the completion of mining, all disturbed areas will be revegetated as described is Sections 4 and 5. This will restore the land to a form of improved pasture for grazing.

The void at the cessation of the mining will replace the existing abandoned workings and will be the basis of a beneficial use and fenced off for the safety of stock and personnel.

12. The 1988 EIS required that all disturbed areas, including the process plant, offices, workshops and car parks would be revegetated to restore the land to a form of improved pasture for grazing, and that rehabilitation to an appropriate standard would allow refund of the rehabilitation bond lodged at the commencement of the project.

13. A council minute dated 17 May 1988 noted that the current projected life of the mine was five years, but that “it is hoped that the life of the mine will be extended by the discovery of other ore reserves.” It observed that the proposed development was designated development under the Environmental Planning and Assessment Act 1979 (“the EPAA”).

14. On 21 June 1988 BHP was granted a consent to development application DA 379/88 by the second respondent, Parkes Shire Council (“the council”), for the “operation of an open cut gold ore mine and the construction and operation of an ore treatment plant to extract gold” on the land (“the 1988 consent”).

15. The consent was granted subject to conditions, which relevantly included:

1. condition 2.1, which required the submission of annual reports "during the life of the development”;

2. condition 3.4, which required BHP to enter into an agreement with the council for the supply of water to the plant and ancillary works;

3. condition 3.5, which required the submission of erosion prevention works and, a development application to the council for the water pipeline;

4. condition 3.7, which required the carrying out of erosion control works and the rehabilitation of the site in consultation with the relevant statutory authorities;

5. condition 3.14, which required consultation with the relevant statutory authorities regarding “the future use of the site and final void at least six months before the end of the mine life";

6. condition 3.16, which required the consultation with the Forbes Pasture Protection Board concerning any effect the project may have on a specified ‘Travelling Stock Reserve’ and to reach agreement with the Board regarding rehabilitation measures required to ensure the future use of the reserve “at the end of the project”;

7. condition 3.17, which stated the necessity to obtain all other statutory approvals required for the project not listed in the 1988 consent;

8. condition 4.4, which required "at the end of the mine life transfer to Parkes Shire Council, at no cost, ownership of the pipeline system supplying water to the site"; and

9. condition 5.1, which provided that "ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council”.

16. The 1988 consent did not require the lodgement of a rehabilitation bond, however, a bond was required under mining lease ML 1215 which was granted to BHP on 22 December 1988.

Events Subsequent to the Granting of the 1988 Consent

17. An agreement for the supply of water between BHP and the council was signed on 29 March 1989 (“the supply of water agreement”). Clause 4.4 stated that, “the Shire shall do all things reasonably necessary on its part to facilitate effective operation of the Pipeline and will co-operate with BHP to ensure the safe and efficient operation of the Pipeline”.

18. On 13 October 1989 BHP agreed to pay road maintenance contributions to the council for the haulage of ore to the land. In a letter to the Manager of the Parkes Gold Mine dated 28 November 1991, the council stated that, “these contributions were agreed to in accordance with Condition 5.1 of Development Consent No 379/88 for the London Victoria Mine.”

19. Almost a decade of open cut gold mining and ore processing for gold ensued.

20. In the meantime, in late 1993 Hargraves Resources NL (“Hargraves”) purchased the mine and treatment plant. In a letter to the council dated 14 June 1994, Hargraves stated that:

To extend the life of Parkes operation, we are undertaking an exploration program on our mining lease at Calarie (Forbes). If this program successfully identifies economic reserves or ore, we propose to mine Calarie and transport the ore by road to the treatment plant at Parkes.

21. In June and July 1995 Hargraves, together with its consultants RW Corkery & Co Pty Limited (“Corkery”), explored the possibility of transporting ore by road from Hargraves’ mining lease at Calarie to the mine for processing.

22. On 11 July 1995 the council wrote to Corkery in respect of that proposal and stated:

Attention is drawn to Development Consent Condition No 5.1 for the Parkes Gold Mine which states:

Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council.

Council considers that other matters associated with the processing of Calarie Ore at the Parkes Gold Mine's plant can be adequately addressed by the existing development conditions for the Parkes Mine.

23. On 18 July 1996 the council wrote to the mine manager, copying the letter to Hargraves, noting the manger’s advice that “mining activities at the London-Victoria Mine has ceased and processing will be completed by the end of October this year.” Attention was drawn in the letter to condition 4.4 of the 1988 consent requiring the ownership of the water pipeline system supplying water to the site to be transferred to the council at the end of the mine’s life, and it urged discussions to be held as soon as possible in this regard.

24. In approximately October 1996, the processing of stockpiled ore from the mining operation on the land had ceased and the mine was placed in care and maintenance.

25. Meanwhile Hargraves, and a prospective purchase of the land (Michelago Resources NL), considered options for continuing mining and processing operations on the land.

26. By December 1996, however, all of the mining and processing of the extracted ore had ceased, and on 5 December 1996, the council wrote to Hargraves noting this fact and requesting that discussions be held in relation to the transfer of the pipeline.

27. A letter to similar effect was written by the council on 10 October 1997. Attached to the letter were minutes of a meeting held between the council and Hargraves in an attempt to resolve the issue.

28. But on 15 January 1999, pursuant to a request by Hargraves to exercise a five year option in the supply of water agreement, the council wrote to Hargraves stating:

You have previously advised Council that mining operations have ceased at the London-Victoria Mine, with rehabilitation the only ongoing activity. Consequently it would seem inappropriate to renew the option, which is contrary to the provisions of condition 4.4 of Council’s Development Consent No. 379/88.

Council is however willing to delay any transfer of asset ownership pending the proposed sale [of the mine]. Should the new mine owners anticipate reopening the mine Council would be more than happy to negotiate a new water supply agreement, based on the availability of the effluent supply at that time.

29. On 10 July 2000, Western Red Quarries Pty Ltd (now Westlime), lodged a development application (DA00121) in respect of the land at the mine for development described as “operation of a milling, blending and distribution centre, to produce processed and/or blended agricultural, industrial and hard rock products” for its limestone and road base aggregate processing business, the Parkes Processing Centre. Consent was granted by the council on 9 February 2001 (“the 2001 processing facility consent”).

29. Approval to modify the 2001 processing consent to allow heavy vehicles to use designated roads to access the Parkes Processing Centre was subsequently granted by the council on 4 December 2002 (“the 2002 processing facility approval”).

30. By 20 April 2005, in a letter from the liquidator of Hargraves to the Department of Primary Industry, the mine was confirmed to have been sold to Westlime. In that letter, a request was made to cancel ML 1215 and to release the security bond of $60,000.

31. On 27 June 2005 ML 1215 was cancelled and the security bond released, the Director-General for Primary Industries having determined that rehabilitation of the lease area had been adequately completed.

32. On 4 September 2008 Westlime lodged an application with the council to further modify the 2001 processing consent for “recovery of tailings stored onsite from previous mining operation for blending to produce construction materials”. Approval was granted to Westlime in respect of the further modification application on 18 November 2008 (“the 2008 processing facility approval”).

33. Meanwhile, AEI had been issued with EL 7242 on 7 November 2008 (it has subsequently been renewed on 11 May 2011 and 25 June 2012).

The 2009 Modification Approval

35. On 16 December 2008 Westlime lodged an application with the council to modify the 1988 consent for activity that comprised the “recommencement of extraction operations from the London Victoria Mine”, being a use of the land for the purposes of an “extractive industry” (“the 2008 modification application”).

36. A Statement of Environmental Effects prepared by Corkery and dated December 2008 (“the 2008 SEE”), noted that Westlime “seeks to recommence extraction activities within the Mine in an area adjacent to the existing extraction area. This material would be processed and blended with material sourced from other locations to produce a range of products for use for construction and agricultural purposes”.

37. The 2008 SEE noted that the 1988 consent and the 2001 processing facility consent applied to the site. Moreover, that ML 1215 had been relinquished by the administrator of Hargraves following the Department of Primary Industries – Mineral Resources determination that rehabilitation of the lease area “had been adequately completed and the security bond returned to the leaseholder”.

38. Under section 2.1 “Objectives and Approvals Sought” of the 2008 SEE, the proposed modification was described as:

The purpose of the development would be to provide raw material for the Parkes Processing Centre to supplement raw material currently sourced from the Northern and Southern Overburden Emplacements.

…

It is asserted that the proposed modification would result in operations that are of a significantly smaller scale than currently approved under Development Consent 379/88 and, as a result, the proposed operation would be substantially the same as the approved operation.

…

The Applicant’s primary objective is to obtain a source of raw material of suitable composition and fragment size for processing and blending with other materials within the Parkes Processing Centre to maintain the quality and consistency of the Centre’s products and meet client demand for products with specific specifications.

39. The 2008 SEE further described the approval sought from the council to modify the 1988 consent as including new conditions 5.2 and 5.3, which were to provide that:

Condition 5.2 - Up to 120,000t per year of material, being material not classified as a mineral under the Mining Act 1992, may be extracted from an area adjacent to the London and Victoria and Shaws Pits as described in the document titled "Statement of Environmental Effect to support an Application for a Modification of Development Consent 379/88 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008.

Condition 5.3 - the safety bund may be relocated or upgraded as described in the document titled "Statement of Environmental Effects to support an Application for a Modification of Development Consent 379188 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008.

40. The 2008 SEE noted that all activities presently conducted at the mine were being conducted under the 2001 processing facility consent and that “no activities approved under” the 1988 consent were being carried out.

41. The 2008 SEE went on to describe the extraction operations and rehabilitation of the landform, stating, however, that it had been determined earlier that the rehabilitation of the mine was complete.

42. Finally, in section 4.2 “Substantially the Same Development”, after quoting s 96(2) of the EPAA, the 2008 SEE went on to state that:

The applicant contends that the proposed modification, if approved, would effectively remain “substantially the same development” for the following reasons. Firstly the proposed modification would increase the total area of disturbance from approximately 118ha to approximately 123ha, an increase of approximately 4%. In addition, the total size of the extraction area would be increased from approximately 34.3ha to approximately 36.1ha, an increase of approximately 5%.

Secondly, the proposed extraction methods, namely drill, blast, load and haul, would be the same as the approved extraction methods, albeit on a smaller scale.

Thirdly, construct of a bund around the perimeter of a proposed extraction area is an essential component of any extraction operation to ensure the safety, in the long term, of the public and individuals who may inadvertently enter the Project Site.

Finally, as indicated in Section 3, the environmental impacts associated with the proposed modification are not considered to be significantly greater than those associated with the existing, approved impacts.

43. By letter dated 17 December 2008, the 2008 modification application was publicly notified by the council.

44. Correspondence passed between the council and the NSW Department of Primary Industries indicating that the Department had no objection to the proposed modifications to the 1988 consent and that the material proposed to be extracted from the extension next to the London and Shaw pits was not classified as a mineral under the Mining Act 1992, and therefore, no mining lease was required.

45. On 21 April 2009 the council granted approval under s 96 of the EPAA for the modification of the 1988 consent subject to conditions (“the 2009 modification approval”), which included:

Condition 23 - Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council.

Condition 24 - Except as except as expressly provided by these general terms of approval, works and activities must be carried out in accordance with the proposal contained in:

The development application (DA 379/188) submitted to Parkes Shire Council on 17 December 2008; and

All additional documents supplied to the DECC in relation to the development including the "Statement of Environmental Effects to support an application for a Modification of Development Consent 379/88 for the London Victoria Mine” dated December 2008 and the email transmission to Parkes Shire Council from RW Corkery & Co Pty Limited dated 23 March 2009.

46. A report presented to the council prior to its determination noted, by way of background, that the council had first granted approval for the use of the land for the purposes of a mine in 1988, but that it had ceased to operate as a mine in October 1996, after which time, it had been purchased by Westlime.

47. The report observed that the approval of the application meant that raw products for the Parkes Processing Centre would be sourced on site and therefore would not need to be transported from elsewhere. In addition, the report stated that the site was currently being used as a processing plant for Westlime’s operations and that the proposed modification, which involved the recommencement “of minor scale raw product extraction” from the mine, would allow the plant to continue to operate.

48. Nevertheless, as at 21 April 2009, the date of determination of the 2009 modification approval, the open cut gold mining activities approved in the 1988 consent had ceased, the project site on the land had been rehabilitated, the performance bond returned under ML 1215 and the council had requested the transfer of ownership of the water supply pipeline system in accordance with condition 4.4 of the 1988 consent.

49. The 2009 approval effected no modification to the 2001 processing facility consent.

The 2012 Modification Approval

50. AEI subsequently lodged another application to modify the 1988 consent, as modified by the 2009 modification approval, on 1 May 2012 (“the 2012 modification application”). That application sought permission to import and export gold concentrate from the land to permit the “recommencement of mineral processing operations” at the mine, with the use of the land being for an “industrial” purpose.

51. Westlime’s Background Paper in support of the 2012 modification application, dated March 2012, stated that (“the Background Paper”):

1. the modification was being sought to allow the recommencement of approved gold processing operations within the mine using mine infrastructure that was not currently being used. Specifically, the modification sought to permit the importation and processing of gold concentrate transported to the mine from mining operations elsewhere, including the Dargues Reef Gold Project. Permission for the following additional activities was therefore sought:

1. the transportation of gold concentrate by trucks to and from the mine; and

2. the construction and use of a new Tailings Storage Facility, namely, the Eastern Tailings Storage Facility, within the approved footprint of the Existing Tailings Storage Facility;

2. the scope of the 1998 consent as set out in the 1988 EIS permitted (at p 3):

3. Extraction of ore material from up to four open cuts.

4. processing of that material using an onsite processing plant comprising crushing and grinding, carbon-in-pulp and gold recovery circuits.

5. placement of waste rock into two waste rock emplacements.

6. placement of tailings into a tailings storage facility.

7. ancillary activities associated with the activities immediately referred to (at p 3).

8. Hargraves had operated the mine until its closure in 1996, after which the mine has been rehabilitated. The mine, including all land and infrastructure, was subsequently purchased by Westlime’s predecessor, Western Red Quarries Pty Ltd and a development application for the Parkes Processing Centre had been prepared. That application sought approval for extractive industries and related processing operations, including use of the crushing and grinding components of the processing equipment from the mine to produce raw limestone materials sourced from a limestone mine sourced at Nelungaloo, located approximately 20km to the west of the mine, to produce a range of agricultural, industrial and civil engineering products (the 2001 processing facility consent); in 2009 an application was made by Westlime to modify the 1988 consent to permit extraction activities within the project site in an area outside the previously consented extraction areas. The material was to be processed and blended with material sourced from other locations at the Parkes Processing Centre. Accordingly, a new development consent was issued “superseding the original development consent” (the 2009 modification approval);

9. in 2011 Westlime was approached by Big Island Mining Pty Ltd (“BIM”) with a proposal to recommence processing operations at the mine under the 2009 modification approval. An agreement was subsequently negotiated to permit BIM to lease a section of the mine and to use a section of the approved processing plant to treat up to 50,000 tonnes per year of gold concentrate imported from the Dargues Reef Gold Mine. That activity would require modification of the 2009 modification approval to permit importation of that material, for processing, as well as export of the tailings material should a market for that material be identified. Alternatively, the tailings material would be placed within a new storage facility located at the footprint of the approved Tailings Storage Facility; that the 1998 consent, the 2009 approval, and the 2001 processing facility consent applied to the mine; and that the London-Victoria Mine included the following approved components and activities under the 2009 modification approval (p 8):

a mine development area which was developed into four open cuts, namely the Majors, London, Shaws and Victoria Pits.

A processing plant, including a crushing and grinding circuit, Carbon-in-Pulp circuit and a gold recovery circuit.

A process residue storage area (referred to hereafter as the Existing Tailings Storage Facility).

Two overburden storage areas or emplacements.

Associated infrastructure, including access roads, offices and maintenance and staff facilities

10. approved activities included the following (p 8):

Mining of the open cuts using bulldozer ripping, following by excavator and front-end loader extraction, and drilling and blasting where required.

Transportation of the overburden via haul truck to two out-of-pit overburden storage areas. In-pit placement was also approved to minimise haul distances contingent on not sterilising future reserves.

Transportation of the ore via haul truck to ore stockpile adjacent to the processing plant.

A processing plant operating 24 hours per day, seven days per week including crushing, screening, grinding and milling and treatment using a Carbon-in-Pulp (CIP) plant. Heap leach processing on specially prepared pad was also approved.

11. prior to the establishment of the Parkes Processing Centre, the processing plant comprised the following (p 11):

A 50t capacity dump hopper and scalping screen. All ore to be processed was placed either directly into this hopper or reclaimed from run-off-mine (ROM) stockpile area.

A 250 tonne per hour (tph) capacity primary jaw crusher, 400 tph impact crusher and two tertiary crushers (a 200tph barmac impact crusher and a 200tph cone crusher), together with associated screens and a radial stacker.

A 1 500t capacity fine ore bin.

A 10t capacity secondary hopper.

A ball mill to wet grind the fine ore to a nominal 0.075mm.

A series of process and reagent tanks in which the gold was extracted from the ground ore slurry using the Carbon-in-Pulp process.

A gold room.

A cyanide storage shed.

12. that the following modifications to the 2009 modification approval would be required, namely (pp 15 and 16):

Condition 1

Undertake the development in accordance with

13. Development Application and associated Development Consent 379/88, including the accompanying Environmental Impact Statement prepared by BHP Engineering dated May 1988:

14. Development Application No DA08167 and the accompanying Statement of Environmental Effects prepared by RW Corkery & Co. Pty Limited dated December 2008; and

15. the following conditions.

16. Purpose - for the avoidance of doubt in relation to the application Development Consent 379/88.

17. Condition 23

18. Ore from other locations shall not be transported to the site on Council’s public roads without prior consent of Council.

19. Material for processing may be transported to site via Hartigan Avenue, London Road and Blaxland Street at a maximum rate of 50 000t per year.

20. Condition 23A

21. Processed material may be transported from the site via Blaxland Street, London Road and Hartigan Avenue at a maximum rate of 50 000t per year.

22. in addition to the presently approved operations at the mine, Westlime proposed to undertake the following (p 17):

Transportation of up to 50 000t material per year to the Project Site for processing.

Transportation of up to 50 000t tailings from the Project Site per year for sale.

Minor modifications to the CIP plant to permit material to be loaded directly rather than via the existing ball mill.

Construction or upgrading of ancillary infrastructure, including:

23. a separate Tailings Storage Facility within the footprint of the approved facility;

24. a concentrate storage shed and loading facility; and

25. an access road.

26. although Westlime held Environment Protection Licence 11553 permitting land based extractive activity (50,000 – 100,000 tonnes obtained) and crushing, grinding or separating (100,000 – 500,000 tonnes processed), it did not permit “mineral processing” which was a scheduled activity under Schedule 1 of Protection of the Environment Operations Act 1997. As a result, a modification to that Licence, or a new licence, would be required.

52. A Statement of Environmental Effects was lodged in support on the 2012 modification application (dated May 2012) (“the 2012 SEE”) prepared by Corkery. The 2012 SEE:

1. commenced by examining the scope of the 1988 consent, and observing that the consent permitted the following activities (p 3):

2. Extraction of ore material from up to four open cuts.

3. Processing of that material using an on-site processing plant comprising crushing and grinding, carbon-in-pulp and gold recovery circuits.

4. Placement of waste rock into two waste rock emplacements.

5. Placement of tailings into a Tailings Storage Facility.

6. Ancillary activities associated with the above.

7. noted that the 1988 consent, the 2009 modification approval and the 2001 processing facility consent applied to the land;

8. attached plans of the 1988 consent and the consent as modified in 2009;

9. noted that the modification was being sought to allow the recommencement of approved gold processing operations within the mine using the mine infrastructure that was not currently being used as part of the Parkes Processing Centre. Specifically, the modification sought to permit the importation and processing of gold concentrate, transported to the mine from mining operations elsewhere, including the Dargues Reef Gold Project;

10. summarised (at p 11) the composition of the processing plant prior to the establishment of the Parkes Processing Centre (in terms identical to the summary provided in the Background Paper at p 11);

11. summarised (at pp 15 and 16) the modifications that would be required to the 2009 approval (again in terms identical to those contained in the Background Paper at pp 15 and 16);

12. stated (at p 17, likewise in terms identical to those in the Background Paper at p 17) that in addition to the approved operations, Westlime proposed to undertake the following:

13. Transportation of up to 50 000t material per year to the Project Site for processing. Minor modifications to the carbon-in-pulp plant to permit material to be loaded directly rather than via the existing ball mill.

14. Transportation of up to 50 000t tailings from the Project Site per year for sale.

15. Construction or upgrading of ancillary infrastructure, including:

16. A separate Tailings Storage Facility within the footprint of the approved facility;

17. A separate evaporation pond within the footprint of the approved Tailings Storage Facility;

18. A Facilities Building, comprising an integrated concentrate storage area, gold room and equipment parking area; and

19. An ablutions facility and crib room.

20. stated in section 3.3.6 (“Rehabilitation, Final Land Form and Final Land Use”) Westlime noted that the application for the 1998 consent identified that the rehabilitation activities would be undertaken in a manner that would permit the construction of a non-polluting final land form suitable for a final land use of agriculture. The Environmental Impact Statement prepared in support of the application for the 2001 processing facility consent identified that rehabilitation of the mine would seek to establish an “aesthetically pleasing and low maintenance site” for an as yet unidentified final land use. In order to achieve this, Westlime would:

remove all buildings, plant and equipment and imported raw materials;

remove or otherwise rehabilitate all on-site roads not required for future land management activities;

remove compacted rock from hardstand areas;

rip up all former hardstand and parking areas;

profile the active face(s) of the Northern and/or Southern Overburden Emplacements and dump hopper ramps to maximum slopes of 1:3 (V:H);

install appropriate water management structures to prevent erosion; and

apply subsoil, topsoil and seed to the disturbed surfaces.

21. Accordingly, Westlime contended that the rehabilitation operations approved in the 2001 processing facility consent superseded those identified in the 1988 consent and as a result the proposed modification did not seek to modify the approved rehabilitation activities in the 2001 processing facility consent. Notwithstanding this, Westlime would nevertheless undertake to appropriately rehabilitate the Eastern Tailings Storage Facility and the Evaporation Pond;

22. stated that the 2009 modification approval, as modified, would not have an expiry date. As a result, no time frame for completion of rehabilitation operations had been determined. However, Westlime noted that an agreement between it and BIM was for a period of six years with an option to extend that agreement. As a result, Westlime anticipated that all rehabilitation activities within the area leased by BIM would be complete prior to the end of that agreement or any subsequent extension;

23. justified the proposal on the basis that there would be minimal impact upon the local environment and potential impacts identified had been assessed as being within accepted or specified criteria and/or meeting reasonable community expectations;

24. expressly referred to ss 96(1A), 96(2)(a) and 79(c) of the EPAA. Those sections were set out in full. In particular, section 7.1.3.3 addressed the issue of whether the consent as modified was substantially the same development as the development for which consent was originally granted pursuant to s 96(2)(a) of the EPAA. It stated that:

The applicant contends that the proposed modification, if approved, would effectively remain “substantially the same development” for the following reasons:

the proposed modification would involve the use of existing plant for the purpose of processing gold concentrate, using substantially the same methods as previously utilised at the London Victoria Mine.

The proposed Eastern Tailings Storage Facility and Evaporation Pond would lie within the approved footprint of the tailings storage facility for the London Victoria Mine under Development Consent DA01867.

As indicated in Section 6, the environmental impacts associated with the proposed modification are not considered to be greater than those associated with the existing approved impacts.

25. expressly listed as a reference the 1988 EIS.

53. On 23 May 2011, the legal representatives for the council, Pikes Lawyers (“Pikes”), advised the council that the 1988 consent, as modified, remained valid and in force and could be further modified subject to the council being satisfied as to all relevant matters contained in s 96(2) of the EPAA, including whether the development approved under the modified consent would be substantially the same as that “originally approved in 1988”. The advice went on to conclude that:

We note that in assessing whether the two proposals are substantially the same Council is required to undertake both a quantitative and qualitative assessment. This involves looking not only at the specific identified activities but also the external impacts and effects of the proposed developments. The transport of material to the site may give rise to impacts specifically sought to be avoided under the original consent and which may render the current proposal not substantially the same as that originally approved. We highlight this as only one possibility and note that we would be surprised if the transport of materials to the site would render the proposal not substantially the same as the earlier proposal which must have envisaged truck movements for removal of extractive material from the site.

54. However, at the time it gave the advice Pikes "did not have a copy of the original consent”.

55. Notice was given of the 2012 modification application and objections were received. On 14 June 2012, therefore, AEI’s mining titles consultant, Mr Russell Hetherington, submitted a letter of objection to the council with respect to the 2012 modification application. The four primary grounds of objection were that: first, the 1988 consent had been abandoned; second, that the development was not substantially the same development; third, there was objection to the description of the development being “recommencement and extension of” the mine; and fourth, that the legal right to conduct the development or activity subject to the 1988 consent was at an end and that a mining lease to permit the proposal was required.

56. In June 2012, Corkery prepared a Response to Submissions in relation to the 2012 modification application. The Response discussed at length the 2009 modification to the 1988 consent. It attached a letter of advice from Ashurst Lawyers (“Ashurst”) dated 19 June 2012, refuting the proposition that the 1998 consent was exhausted and had ceased to exist. Ashurst identified the documents they were briefed with. That list did not include the 1988 EIS.

57. Officers of the council then prepared a report assessing the 2012 modification application. The report stated that:

1. the council had received an application to recommence the use of the mineral processing plant at the mine. Westlime proposed to transport ore from Dargues Reef Gold Project and to upgrade the existing processing facility at the mine; to construct a new Tailings Storage Facility within the approved footprint of the Existing Tailings Storage Facility; to transport pyrite concentrate from the mine; as well as the construction and use of ancillary infrastructure to facilitate the processing operations;

2. the site had been used since early this century, by Westlime, who used the site to process raw limestone materials to produce a range of agricultural, industrial and civil engineering products;

3. as part of the modification, Westlime proposed to construct some ancillary infrastructure (as described above including, a separate evaporation pond, a facilities building, parking and other facilities);

4. the original mine processed approximately 600,000 tonnes of ore material, whereas the proposed reuse of the facility intended to process only 50,000 tonnes per annum. The ore material being imported had a significantly higher gold content making production more profitable and the ore material proposed to be imported was also geologically different, resulting in longer processing time;

5. the council had legal advice in response to the Hetherington submission reinforcing its decision to properly accept the application as a s 96 modification application because the consent in question had never lapsed, nor was it suspended, and because the proposal appeared to be substantially the same development according to the Ashurst advice that was attached and was observed to be in conformity with the Pikes advice;

6. the proposal complied with the intent of s 96 of the EPAA and therefore it could be validly approved; and

7. in conclusion, the proposed modification involved the recommencement of the mining processing plant at the mine, the modification sought to import no more than 50,000 tonnes of ore to the existing site for processing and would not impact on Westlime’s agricultural and construction materials processing. Conditions were recommended including requiring Westlime to monitor the activities being undertaken on the site in the surrounding environment and provide such monitoring details to the approved authorities.

58. Attached to the report were the 2012 SEE and the Response to Submissions prepared by Corkery.

59. The report recommended approval of the application subject to the following conditions:

Conditions

Approved Plans

Undertake the development in accordance with:

Development Application and associated Development Consent 379/88 including an The Environmental Impact Statement prepared by BHO engineering and dated 1988;

Development Application DA08167 and accompanying Statement of Environmental Effects, prepared by R.W.Corkery & Co Pty Limited dated December 2008 and May 2012; and

The following conditions:

…

Annual Reporting

The applicant shall:

18. Prepare and submit, to the Council and to the Director Planning and Environment (hereinafter called “the Director”), in a form acceptable to the Director, an annual report in respect of performance of the development, the annual report shall be prepared for each period ending 31st December, and shall be submitted by 31st March of the following year, during the life of development. Further, the applicant shall, prior to the commencement of the construction of the development, initiate discussions with the Director, or his nominee, in order to determine the appropriate form of such report; and

…

General

23. Deleted

60. Condition 23 was the equivalent of condition 5.1 in the 1988 consent.

61. On 7 August 2012, the council determined to modify the 1988 consent and issue the 2012 modification approval, subject to the following conditions (“the 2012 modification approval”):

Conditions: Approved Plans 1. Undertake the development in accordance with: • Development Application and associated Development Consent 379/88 including an the Environmental Impact Statement prepared by BHP engineering and dated 1988;
Determination:	The development application has been determined by granting of consent pursuant to Section 80 of the Environmental Planning and Assessment Act, 1979 of 21 June 1988 and now modified pursuant to Section 96 of the said Act, subject to the conditions specified in this notice. These conditions replace the original conditions specified in Development Consent No DA379/88.

…

14.    Provide Council with staged rehabilitation plans for areas disturbed    under the modification prepared by RW Corkery & Co Pty Ltd.

15.    Appropriate mine closure measures, including the submission of a Mine Closure Plan to Council, shall be put into place prior to the closure of the mine.

…

General

23.    Deleted

Issues for Determination

62. This proceeding challenges the validity of the 2009 and 2012 modification approvals on four substantive grounds.

63. By agreement between the parties, the issues for determination by the Court are:

1. first, whether the 1988 consent was exhausted or spent such that it could not be modified pursuant to s 96 of the EPAA as at 21 April 2009 (the 2009 approval). AEI argued that upon the land being declared to be rehabilitated and the bond released, the carrying out of development in accordance with the 1988 consent was complete, and therefore, the 1988 consent could not be modified in 2009 (ground one of the points of claim);

2. second, whether the council erred in law in granting the 2012 modification approval because in doing so it failed to have regard to the 1988 consent for the purposes of s 96(2) of the EPAA (ground two of the points of claim);

3. third, whether s 96(2) of the EPAA, empowering the council to grant the modification approvals, gives rise to a jurisdictional fact that the development to which the consent as modified relates, is in fact substantially the same as the development the subject of the consent originally granted. If the answer is “yes”, whether, in respect of the 2012 modification approval, the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted in the 1988 consent (ground three of the points of claim);

4. fourth, whether the council’s decision to issue the 2012 modification approval was manifestly unreasonable insofar as no reasonable consent authority acting reasonably could have concluded that the development as modified by the 2009 modification approval and the 2012 modification approval, was substantially the same as the 1988 consent, as required by s 96(2) of the EPAA (ground four of the points of claim); and

5. fifth, if the council’s decision to grant either the 2009 or the 2012 modification approvals was infected with error, whether the grant of relief sought in the amended summons is appropriate, and in particular, whether an order setting aside and/or restraining Westlime from acting upon or pursuant to the 2009 and 2012 modification approvals should be made.

Legislative Framework Governing the Proceeding

64. Section 76A(1) of the EPAA governs the carrying out of development and states as follows (emphasis added):

76A Development that needs consent

(1)    General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless:

(a)    such a consent has been obtained and is in force, and

(b)    the development is carried out in accordance with the consent and the instrument.

65. Section 91 of the EPAA (as it stood at the time the 1988 consent was determined) was relevantly in these terms (emphasis added):

Determination of development application

91. (1) A development application shall be determined by –

(a)    the granting of consent to that application, either unconditionally or subject to conditions; or

(b)    the refusing of consent to that application.

...

(3)    A condition may be imposed for the purposes of subsection (1) if it –

(a)    relates to any matter referred to in section 90 (1) of relevance to the development the subject of the consent;

(b)    requires the modification or surrender of a consent granted under this Act or a right conferred by Division 2 in relation to the land to which the development application relates;

(c)    requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates);

(d)    limits the period during which development may be carried out in accordance with the consent so granted;

(e)    requires the removal of buildings and works (or any part thereof) at the expiration of the period referred to in paragraph (d);

(f)    requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90 (1) applicable to the development the subject of the consent;

(g)    modifies details of the development the subject of the development application; or

(h) is authorised to be imposed under section 94.

66. The power to modify development consents is contained in s 96(2) of the EPAA and relevantly provides that:

96 Modification of consents-generally

(2)    Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a)    it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)    it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

67. Section 109B of the EPAA relevantly states:

109B Saving of effect of existing consents

(1)    Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force.

(2)    This section:

(a) applies to consents lawfully granted before or after the commencement of this Act, and

(b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and

(c) has effect despite anything to the contrary in section 107 or 109.

68. As at the date of the 1988 consent, Interim Development Order No1 – Municipality of Parkes (“IDO 1”) applied to the land. Under IDO 1 both a “mine” and an “extractive industry” were permissible uses of the land with consent.

69. As at the date of the 2009 modification approval, development for the purposes of an extractive industry was permissible. The land was zoned Rural 1A under the Parkes Local Environmental Plan 1990 (“the 1990 LEP”). As with IDO 1, a “mine” and “extractive industry” were permissible with consent.

70. The land is currently zoned RU1 - Primary Production under the Parkes Local Environment Plan 2012 (“the 2012 LEP”), which came into operation on 7 December 2012. Under the 2012 LEP, development for the purposes of a "mine" is permissible with consent.

71. The Environmental Planning and Assessment Model Provisions 1970 (“the 1970 Model Provisions”) defined the terms “extractive industry”, “extractive material” and “mine”, respectively to mean:

Extractive industry means an industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on.

Extractive material means sand, gravel, clay, turf, soil, rock, stone and similar substances.

Mine means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place adjoining on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry.

72. The identical terms in the Environmental Planning and Assessment Model Provisions 1980 are defined as:

extractive industry means:

1. the winning of extractive material, or

2. an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land

extractive material means sand, gravel, clay, turf, soil, rock, stone or similar substances.

Mine means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry.

73. In the 1990 LEP “extractive material” means “sand, gravel, clay, turf, soil rock, stone or any similar substance, but does not include any pure metal or any substance extracted for the purpose of refinement to obtain a metal or mineral”.

74. The Environmental Planning and Assessment Model Provisions 1980 (“the 1980 Model Provisions”) were “except for the definitions of extractive material”, adopted for the purpose of the 1990 LEP (cl 6(1) of that LEP).

75. In the 2012 LEP the terms “extractive industry”, “extractive material” and “mine” mean:

extractive industry means the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging, tunnelling or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming.

extractive material means sand, soil, gravel, rock or similar substances that are not minerals within the meaning of the Mining Act 1992.

mine means any place (including any excavation) where an operation is carried on for mining of any mineral by any method and any place on which any mining related work is carried out, but does not include a place used only for extractive industry.

Evidence of the Parties

76. AEI relied on the evidence of Mr Hetherington and Mr Brian Loche. Mr Russell Hetherington is the director of Hetherington Expiration & Mining Title Services Pty Ltd (“Hetherington”). Mr Loche is a director and AEI.

77. In his affidavit, sworn on 28 April 2014, Mr Loche stated that:

1. he was not aware of the terms of the 2009 modification approval until that document was provided to his lawyers by the council’s lawyers sometime in or around December 2013 or January 2014;

2. furthermore, he did not become aware of the proposed reactivation of the mine until he read a public announcement concerning it by the mining company Cortona. It was following that publication that he instructed Mr Hetherington of Hetherington to prepare a submission in relation to the 2008 modification application;

3. AEI is the holder of EL 7242. EL 7242 covers the whole of the area of the mine;

4. since obtaining EL 7242, AEI has:

1. flown over the mine pit to assess the gold in the mine pit;

2. engaged geologists to assess the mineralisation within the mine;

3. analyse previous drill holes;

4. made attempts to enter into an access agreement with Westlime to explore the ground of the mine; and

5. prepared documentation for the purpose of making an application for an assessment lease;

5. based on the annual reports in respect of EL 7242, AEI had spent $438,740 on that licence;

6. he expects that by digging an additional 20 metres into the open pit of the mine, mineral extraction of $18 million profit is achievable and that at the time of swearing his affidavit, that there was over $185 million of gold within the mine. This figure did not include any gold that may reside in the tailings dam and overburden from previous mining operations.

78. Mr Loche was cross-examined by counsel for both Westlime and the council. The cross-examination revealed that:

1. only a very small portion of the $438,740 was spent in relation to on ground exploration or in field exploration on Westlime’s land (T26.30);

2. AEI has not actually carried out any drilling itself on the land (T28.45–29.05);

3. as at June 2011 Hetherington was engaged on AEI’s behalf to make enquires of the council in relation to Westlime’s planning approvals. In this respect, Hetherington acted as AEI’s agent (T30.40);

4. no mining lease application has been lodged over the land covered by EL 7242 (T36.05);

5. the application to renew EL 7242 had not yet been determined (T37.25);

6. the amount of funds that AEI had allocated for on the ground drilling had been wholly consumed by the litigation (T37.85);

7. AEI had not applied to have the dispute arbitrated under the Mining Act (T38.05);

8. the land access agreement sent to Westlime by AEI was nothing more than the standard form template for a land access agreement suitable for agriculture (T40.30);

9. AEI did not respond to or engage with Westlime’s requirements issued in January 2012 in respect of land access (T42.10);

10. AEI was “obviously … a long way from actually mining this stuff” (T43.11);

11. AEI has not signed any contracts for drilling on Westlime’s land (T44.25);

12. AEI had not analysed the tailings and the overburden, and therefore, it was not in a position to comment whether or not it has any gold content (T50.24);

13. Mr Loche expected to be kept informed of any planning approvals Mr Hetherington became aware of, including a copy of the 2009 modification approval that Mr Hetherington obtained in June 2011 (T53.10); and

14. EL 7242 had currently expired but was the subject of a further late renewal. However, it was the relevant Department’s intention to refuse the application (T55.43).

79. In his affidavit sworn 30 April 2014, Mr Hetherington deposed to the following facts:

1. that Hetherington had been assisting AEI in respect of its exploration activities since at least 2008 and was involved in it obtaining EL 7242;

2. it was not until 6 June 2011 that he became aware, pursuant to an email sent from the council on that date, of the 2009 modification approval; and

3. sometime in about May or June 2012 he became aware of the 2012 modification application, in respect of which he made a submission on behalf of AEI.

80. The council relied on an affidavit of Mr Joshua Palmer, affirmed 20 December 2013. Mr Palmer is a solicitor instructed by the council. Having reviewed in detail the council’s file relating to the development consents and modifications the subject of these proceedings he gave the following evidence:

1. that in his review of the council’s files he had not found a copy of the entire EIS. The council had confirmed that it did not hold a full copy of the 1988 EIS;

2. EL 7242 was due to expire on 7 November 2013;

3. on 17 December 2008 the council notified adjoining land owners and relevant Government agencies, by letter, that the 2008 modification application had been lodged. Furthermore, on that date the council commissioned The Parkes Champion Post to publish notification of the 2008 modification application;

4. between 15 May and 23 May 2012, the council notified relevant land owners and Government departments of the lodgement of the 2012 modification application. On 15 May 2012 the council commissioned publication of the notice of the 2012 modification application in The Parkes Champion Post;

5. on 14 June 2012 Hetherington wrote to the council on behalf of AEI objecting to the 2012 modification application;

6. on 8 August 2012 the council wrote to Hetherington notifying it of the 2012 modification approval; and

7. the council published notice of the 2012 modification approval in The Parkes Champion Post on Friday, 10 August 2012.

81. Mr Palmer was cross-examined. The cross-examination revealed that he did not seek to obtain a copy of the 1988 EIS from Corkery (T63.45).

82. Mr Andrew Commins, the General Manager of Westlime, swore an affidavit on 7 May 2013. In his affidavit, after detailing the history of Westlime and its current operations, Mr Commins went onto depose that Westlime’s road base production is dependent on the 2009 modification approval. In short, Westlime extracts hard rock at the mine before processing the hard rock at the Parkes Processing Centre in order to create road based products of particular grades and qualities. The hard rock used to create all of Westlime’s road based products is extracted from the London and Shaw pits at the mine.

83. According to Mr Commins, the extraction of rock from the pits is authorised by condition 5.2 of the 1998 consent, as modified. He noted that condition 5.2 was not contained within the original 1988 consent but was inserted as a consequence of the 2009 modification approval.

84. One of the road based products produced by Westlime is a grade of road base that is a very high quality product designed to meet the Roads and Maritime Services’ specifications in order to be designated as such. Westlime is one of a small number of suppliers of this high quality road base. Westlime is the contracted road base supplier to the council. It also supplies road base to Forbes Shire Council, Orange City Council, NSW Roads and Maritime Service, and other private business. Road based production is a main component of Westlime’s business and occurs year round. It comprises approximately 56% of Westlime’s annual revenue. The high quality road base is Westlime’s bestselling product.

85. He further stated that Westlime also extracts limestone from another pit which is then delivered by truck to the Parkes Processing Centre for the production of agricultural limestone products. Given its agricultural use, Westlime produces limestone seasonally.

86. Westlime’s products are delivered by Westlime trucks, as well as independent trucking contractors to customers.

87. Mr Commins deposed that if the 2009 modification approval was invalidated then:

1. Westlime would be unable to extract and process hard rock from the pits at the mines;

2. Westlime would be unable to produce road based products generally, including the high quality road base;

3. Westlime would suffer a significant impact on its sales revenue due to the loss of revenue on road base sales;

4. Westlime’s trucking contractors would be significantly financially impacted by the termination of Westlime’s road based deliveries;

5. Westlime would have to rely solely on its revenue from agricultural lime production for its financial viability. In addition to the fact that this product is seasonal, sales from lime production for agriculture are also vulnerable to drought conditions, as demand for limestone fertiliser products drops significantly during periods of drought;

6. Westlime would have to retrench between 10 and 12 employees; and

7. Westlime’s ongoing operations would no longer be financially viable.

88. He stated that Westlime had acted in reliance on the 2009 modification approval for approximately the last four years.

89. Finally, he deposed that since 2011 AEI had corresponded with Westlime in order to enter into a land access agreement for mineral expiration at the mine. To date, however, no such agreement has been entered into.

90. Mr Commins was not required for cross-examination.

Was the 2009 Approval Invalid Because the 1988 Consent Was Spent?

91. AEI conceded that the 1988 consent was neither abandoned, nor surrendered, and that it had not lapsed. Rather, the issue was framed as whether, as a matter of interpretation, and having regard to ss 76A(1) and 96(2) of the EPAA, the 1988 consent had reached the end of its life, and therefore, could not authorise the “carrying out” of any development, and hence, could not be the subject of a modification application.

92. In essence, the submissions of AEI were two-fold:

1. first, that the 1988 consent was for the “operation of an open cut gold mine and ore treatment plant to extract gold” subject to conditions. Those conditions (in particular, conditions 3.7, 3.14, 3.16 and 4.4) made it clear, as a matter of construction, that the consent was for a limited period of time, namely, “the life” of the mine, which in turn was limited by the activities carried out at the mine itself, such activities having ceased prior to the 2009 modification approval; and

2. second, because the 1988 consent only authorised the carrying out of development for the life of the mine, after the mine had ceased no person could “act on” (using the language of s 96(2) of the EPAA) the consent because there was nothing left to be “carried out in accordance with the consent” (using the language of s 76A(1)(b)).

The Principles of Construction of Development Consents

93. The principles of construction of development consents are well known and may be summarised as follows:

1. consents are to be construed, “not as documents drafted with legal expertise, but to achieve practical results” (Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 at [36] per Hodgson JA, Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]–[100] and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [80]));

2. consents are to be construed fairly and liberally, with the meaning of their text to be determined objectively, having regard to the context in which the consent was issued, and taking into account the fact that, unlike a contract, a consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as for the applicant (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23] and [37]–[41] per Mason P, Stein and Giles JJA agreeing and K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [23] per Meagher JA);

3. as a general rule, a development consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it (Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [42] and Bardsley-Smith Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 at [66]);

4. plans and other documents may be incorporated in a development consent expressly or by necessary implication (Allendale at [24], [43]–[48] and [153]–[163] and Bardsley-Smith at [66]);

5. a mere reference in a development consent to another document, such as a development application, will not usually be sufficient to incorporate that document into the consent (Allandale at [45], [157]–[158] and Bardsley-Smith at [67]). However, if a development consent expressly incorporates another document, or part of it, or if a document is attached to a development consents or referred to in it for the purpose of identifying or describing something dealt with in the consent, this will generally be sufficient for the purposes of incorporation (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 434, Allandale at [45] and Bardsley-Smith at [67]); and

6. the words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the development consent, and orthodox cannons of construction may require an alternative interpretation (Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252; at [28] per Biscoe J).

The 2009 Modification Approval is Valid

94. In my view, AEI’s submissions cannot be accepted. My reasons are as follows. First, as a matter of construction, no specific end date was imposed by the conditions attached to the 1988 consent on the processing of gold ore under the consent, or for that matter, the operation of the open cut gold mine. Applying the principles of interpretation discussed above, it is plain that, in addition to granting consent for an open cut gold mine, the 1988 consent approved the operation of an ore treatment plant to extract gold on the land which was not limited to the processing of gold actually mined from the land. Therefore, even if the mine had ceased to yield gold, it was not correct to contend, as AEI does, that the 1988 consent was spent or exhausted as at 2009, such processing operations were able to continue into the future. This is a complete answer to the first ground of review.

95. This was evident not only from the terms of the 1988 EIS and the original development application as incorporated into the 1988 consent, but also as a stand-alone document from the terms of the 1988 consent itself.

96. Having said this, because all parties agreed that the 1988 EIS was incorporated into the 1988 consent (this was manifest in Westlime’s written and oral submissions and was accepted by the council in oral argument: T161.01) I was not asked to determine this issue. Had I been called upon to do so, it is not certain absent full argument, in conformity with the authorities in Allendale and Bardsley-Smith, that I would have reached the same conclusion as that of the parties. For the purpose of this ground, however, result is nevertheless the same.

97. It is true that conditions 2.1, 3.5, 3.14 and 4.4 of the 1988 consent all required things to be attended to at the end of the life of the mine or development or during the operation of the mine, but these conditions are not, of themselves, inconsistent with the processing of ore occurring from time to time into the future. Put another way, conditions referring to “the end of the mine life”, “the end of the development”, or “the end of the project”, are consistent with the objective contemplation of future mining and processing activity at the site, with no necessity that such activity be continuous or uninterrupted.

98. At their absolute highest, these conditions placed a vague and inchoate temporal limitation on the development but not a temporal limitation on the development consent granted in 1988 (Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 per Lloyd J at [16] quoted below).

99. And notwithstanding that there were various (and conflicting) statements in the 1988 EIS (which was required because the development was designated development) and 1988 Summary EIS as to the life of the mine, or the project life, these were no more than estimates. The 1988 EIS did not identify with any specificity the temporal or spatial (that is to say, volumetric) limits of the proposed open cut mine operation (again, noting that the open cut mine was only part of the development for which consent was sought). To the contrary, the processing operation was specifically and repeatedly stated as potentially continuing into the future if other reserves or off site ore could be found. In this regard, condition 5.1 of the 1988 consent expressly foreshadowed the seeking of council’s approval if use of its public roads was involved to transport ore to and from the mine from elsewhere.

100. AEI cannot demonstrate that there was no further development to be carried out within the terms of the 1988 consent. As the council contended, just as AEI urged upon the Court a finding that the mine had ceased to operate and the ore treatment and processing plant had suspended its operation because the approved development activity was exhausted, it is equally plausible that this cessation and suspension was the product of the user’s inability to continue with the development activity (for example, by reason of Hargraves’ liquidation, or due to uncertainty surrounding the financial viability of the project due to a drop in the gold price). AEI’s position ignores the ability of a person entitled to act upon the consent to resume doing so at any time, or, as in this case, to apply to modify that consent.

101. Also contrary to AEI’s submission that the consent has ceased is the fact that as at the date of the 2009 modification approval there were active conditions. In particular, condition 4.4 had not been complied with and the pipeline ownership had not been transferred. In addition, the Parkes Processing Centre remained on site.

102. Further reinforcing the conclusion that the 1988 consent is not limited in time in the manner asserted by AEI is the fact that, as the council submitted, as at the date of the determination of the 1988 consent, s 91(3)(d) of the EPAA (as it then was) expressly provided for the imposition of a time limit on the period during which development could be carried out in accordance with a consent, and the council deliberately did not exercise this power.

103. The fact that ML 1215 had been cancelled and the bond returned pursuant to that cancellation is, in my view, irrelevant. Not only was that mining lease granted subsequent to the 1988 consent, it was a wholly separate instrument issued under a wholly separate legislative regime (the Mining Act) (Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 at [47]–[50]).

104. AEI placed considerable reliance in support of its position on Winns v Director-General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508. In my opinion, however, that decision is distinguishable on its facts and does not assist AEI.

105. In Winns at issue was a condition which stated that “the Registered Holder shall mine the subject area only once, unless with the consent in writing of the Minister for Mines and the Board first had and obtained and subject to any conditions they may stipulate” (emphasis added). The Court held as a matter of construction that the words “only one” prohibited all forms of re-mining, including deep mining, absent the requisite approvals, but that if the relevant approval were obtained mining more than once was permissible (at [7]–[8] per Spigelman CJ).

106. In the present case, neither emphatic words of limitation such as “only once”, nor any necessity to obtain further approval for future mining activities (other than condition 5.1), may be found in the consent. Phrases such as “the life of the mine” or “the life of the project” are not comparable.

…

113   Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. ...

172. To this curial chorus, the observations of Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 (at 323), as quoted and expanded upon by Jagot J in Bechara (at [48]–[49]), should be added:

48    The principles applicable to review for Wednesbury unreasonableness are well known (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). Biscoe J surveyed many of the familiar judicial admonitions about the very confined nature of review on this ground in Save our Street Incorporated v Settree (2006) NSWLEC 570 at [27] to [31]. To that survey, I would add only a reference to The Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323 where Menzies J observed that:

There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council’s opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court.

49 The distinction drawn by Menzies J focuses attention on the critical difference between a decision which is so devoid of plausible justification as to amount to an abuse of power (with which the courts will interfere) and a decision which is reasonably open even though the court may not consider that decision to be sound or right (with which the courts will not interfere). This distinction must be kept in mind in a case such as the present where, as I have said, minds may reasonably differ about the application of ss 96(1A)(a) and (b) to any particular modification application.

Legal Principles Governing the Power to Modify in s 96(2) of the EPAA

173. The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows:

1. first, the power contained in the provision is to “modify the consent”. Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore “chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity” (Michael Standley at 440);

2. the modification power is beneficial and facultative (Michael Standley at 440);

3. the condition precedent to the exercise of the power to modify consents is directed to “the development”, making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]);

4. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8);

5. the term “substantially” means “essentially or materially having the same essence” (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]);

6. the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]);

7. the term “modify” means “to alter without radical transformation” (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]);

8. in approaching the comparison exercise “one should not fall into the trap” of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik);

9. the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their “proper contexts (including the circumstances in which the development consent was granted)” (Moto Projects at [56]); and

10. a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be “legally flawed” (Moto Projects at [52]).

174. AEI described the “essence” of the 1988 consent as:

1. for an open cut gold mine;

2. for the purposes of a mine and not an extractive industry;

3. including a gold ore treatment and processing plant for the gold ore extracted onsite;

4. not including ore from other locations to be transported to the site without prior consent of the council (relying on condition 5.1 of the 1988 consent);

5. for a limited time (relying on conditions 2.1, 3.7, 3.14, 3.16 and 4.4 of the 1988 consent); and

6. requiring the land to be rehabilitated.

175. The combined effect of the 2009 and 2012 modification approvals, however, resulted in a substantially different development from that approved in 1988, namely, one that:

1. no longer included mineral extraction, and therefore, could not be properly characterised as a mine. Rather, the land was to be used for the purposes of an extractive industry, that is, a hard rock quarry and the treatment of imported gold ore;

2. did not process ore for the purposes of extracting gold from the land;

3. permitted up to 50,000 tonnes of ore per annum to be transported to the site (having regard to the deletion of condition 23)

4. was not time limited; and

5. did not have an obligation to rehabilitate the area of the extractive industry.

176. AEI relied on the various definitions of “mine”, “extractive material” and “extractive industry” in the 1970 and 1980 Model Provisions and the 1990 and 2012 LEP (as quoted above), to draw a distinction between the development approved by the 1988 consent - that is to say, a “mine” - and the development approved by the 2009 and 2012 approvals - viz, an “extractive industry”.

177. According to AEI, the various definition of these terms in the planning instruments made it tolerably clear that the concept of a “mine” had been deliberately excluded from the definition of “extractive industry”, and therefore, the approvals granted in 2009 and 2012 for the use of the land as an extractive industry could not reasonably be said to be substantially the same as the consent given in 1988 for the use of the land as an open cut gold mine.

178. Reinforcing this conclusion in respect of the 2009 modification approval was the fact that no mining lease was required in respect of that approval because the material to be extracted was not classifiable as a mineral under the Mining Act. And in relation to the 2012 modification approval, AEI emphasised the fact that the 2012 modification application described the use of the land as “industrial”, as confirmed by the 2012 SEE, and that condition 25 of the 2012 modification approval required the payment of a fee for an environment protection licence based on use of the land for an extractive industry

179. As is made plain by the principles applicable to the manner in which the discretionary power contained in s 96(2)(a) of the EPAA is to be exercised by the council, the relevant comparison is between the 2012 modification approval and the 1988 consent, and not, as AEI seemed to suggest, as between the 2009 modification approval, the 2012 modification approval and the 1988 consent. AEI does not challenge the 2009 modification approval on the ground that it was not substantially the same development as the 1988 consent. Having said this, the granting of the 2009 modification approval is nevertheless relevant to the proper comparison exercise the council must undertake in respect of the 2012 modification application insofar as it forms part of the proper context or circumstances in which the 2012 modification approval was granted.

180. Having regard to the legal principles summarised above, I find that the decision by the council to approve the 2012 modification application was neither manifestly unreasonable nor unreasonable. Put another way, I do not accept that the council’s satisfaction that the 2012 development as proposed by the modifications and the development the subject of the 1988 consent were substantially the same, was sufficiently attended by unreasonableness that intervention by the Court can be justified.

181. The matters relied upon by AEI to demonstrate that the developments were not substantially the same do not, in my view, withstand close scrutiny. In short, the consent for the development in 1988 was for a use of the land as an open cut gold mine as well as for the operation of an ore treatment plant to extract gold. The consent consisted of a number of components: extractive (extracting the ore on the ground in the location of the open cut pits); and processing and treatment (crushing the rock on site and processing it at the CIP processing facility).The operation of the processing and treatment facility did not preclude the use of material transported to the site. Contrary to the submission of AEI, condition 5.1 expressly contemplated the transportation of ore to and from the mine for processing provided that the council consented. This is precisely what occurred, as evidenced by the haulage contributions paid by BHP to the council for the transport of ore between sites pursuant to condition 5.1 of the 1988 consent.

182. The 2012 development approved an operation involving extraction of ore from the same body of rock in a pit adjacent to the pre-existing open cut pits (the result of the 2009 modification approval) (a modified consent may extend the development approved by the consent to other land: Scrap Realty at [18]), that is crushed and processed on site using plant and infrastructure in Westlime’s road base production similar to that previously used for the milling of the gold ore. While the processing methodology has changed with technological improvements, and any gold ore mined on site is now exported, these are not changes that ought to be characterised as effecting “radical” transformation as between the two developments.

183. That the extractive component of the 2012 development cannot be classified as a “mine” under the Model Provisions should not be, in my opinion, accorded much weight. As a matter of logic, just as characterising the development as being for a certain use and that as altered it can be characterised as for precisely for the same use, does not mean that the developments are substantially the same (Vacik), merely because the original and altered uses of the land are different does not inexorably lead to the conclusion that the developments are not substantially the same. Characterisation of the developments, although relevant, will not necessarily be determinative.

184. In Vacik, an application was made to modify a consent to backfill an existing quarry with non-putrescible waste. Waste disposal was not part of the rehabilitation of the quarry. The Court held that because an additional and distinct use, that of waste disposal, was to be included in the rehabilitation of the quarry (a use that was not incidental or ancillary to the dominant use) the development was not substantially the same.

185. In the present case, by contrast, although the developments may be differently characterised, the activity remains the same, namely, the winning and processing of ore on the land, and the transportation of ore to and from the land for processing. The use to which the land has been put pursuant to the 2012 modification approval has the same “essence”, therefore, as the use to which the land was put under the 1988 consent.

186. As to the specific matters raised by AEI:

1. the 1988 consent was for an open cut gold mine and the construction and operation of an ore treatment plant to extract gold. In other words, it was not merely for the use of the land as a gold mine but also for the activity of processing of the ore. Under the 2012 modification approval, the land is currently being used to process the ore extracted from and imported to it, including gold ore;

2. although a “mine” is not an “extractive industry” for the purposes of the relevant planning instruments, the gold ore nevertheless required extraction just as the ore for the road base requires extraction;

3. ore from other locations was transported to and from the mine in accordance with condition 5.1 of the 1988 consent. This condition endured in 2009 (condition 23). The fact that it was deleted and replaced with a condition permitting haulage of ore up to a specified tonnage does no more than remove the need to obtain separate consent from the council for the transportation of ore. The transportation, however, is a continuing activity;

4. the development as approved in 1988 was not, as was discussed above under the first ground of review, for a limited period of time;

5. that a specific amount of ore per annum (50,000 tonnes) is currently permitted to be transported to the site does not matter because ore was always permitted to be transported to the mine under the 1988 consent, and the activity permitted by that consent is not of limited duration; and

6. contrary to the submissions of AEI, there is an obligation to rehabilitate the site under the 2012 modification approval. First, pursuant to the 1988 consent, the obligation to rehabilitate the land was not complete as at 2009 but was ongoing with respect to “sections of the Project Site that have been disturbed by the Parkes Processing Centre” (see section 2.3.4.1 of the 2008 SEE). Second, an obligation to carry out rehabilitation was contained in the 2008 SEE (section 2.3.4). Third, an obligation to carry out rehabilitation was imposed in the 2009 modification approval (condition 1, incorporating the 2008 SEE, and condition 14). Fourth, an obligation to carry out rehabilitation was contained in the 2012 SEE (section 3.3.6), which, together with the 2008 SEE, was in turn incorporated into the 2012 modification approval (see conditions 1, 13 and 14).

187. For these reasons, AEI is unable to make out this ground of review.

Discretion to Order Relief

188. Because AEI has been unsuccessful in establishing any of the grounds of review raised in the amended summons, it is strictly unnecessary for the Court to determine the appropriateness of the relief sought by it in the amended summons. In particular, it is unnecessary to decide whether the Court should, in the exercise of its discretion under s 124 of the EPAA, set aside the 2009 or 2012 modification approvals and grant injunctive relief restraining Westlime from acting pursuant to them. However, for the sake of completeness and in case I have erred in making any of the findings above, I shall proceed to deal with this issue.

189. AEI submitted that if the declarations sought by it were granted, then the remaining relief ought to follow because recent investigations suggested that there were significant deposits of gold in relation to which AEI has the benefit of an exploration licence burdened by the 1988 consent as modified.

190. Both Westlime and the council argued in reply that in respect of the 2009 and 2012 modification approvals the Court should not, in the exercise of its discretion, order this remaining relief because of:

1. first, the delay by AEI in seeking relief in respect of both modification approvals, especially the 2009 modification approval;

2. second, the potential prejudice to Westlime if, given the effluxtion of time, the 2009 modification approval was set aside and the restraint issued; and

3. third, there would be no real prejudice to AEI if the relief was denied.

191. The principles guiding the exercise by the Court of its discretion to grant relief under s 124 of the EPAA are well known and have been expounded upon in a number of cases (Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339–341, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82, Botany Bay City Council v Saab Corp at [149] and Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 at [74]–[75] and [82]–[83]). It is not necessary to presently repeat them, but they are relied upon for the purposes of the reasons below.

192. I endorse the submissions of the respondents in relation to the relief sought in respect of the 2009 modification approval and would, were it necessary to resolve the issue, refuse to set aside that modification approval and refuse to restrain Westlime from acting on or pursuant to it.

193. First, in respect of the 2009 modification approval AEI has unnecessarily delayed the bringing of these proceedings. Well in excess of two years (the amended summons was filed on 22 August 2012), that is to say, from June 2011 when Mr Hetherington, acting on behalf of AEI, became aware of the 2009 modification approval, has passed since that approval was granted by the council (on 21 April 2009). I do not accept Mr Loche’s claim that he only become aware of the terms of the 2009 modification approval in December 2013 or January 2014. I find it implausible that Mr Hetherington, acting on behalf of AEI, would not have brought the approval to Mr Loche’s notice in or about June 2011.

194. Second, as revealed by Mr Loche’s cross-examination, AEI would suffer very little prejudice if the relief in respect of the 2009 modification approval was refused. As Mr Loche conceded, AEI was “obviously… a long way from actually mining this stuff”. Given, amongst other things: that EL 7242 had expired and was not likely to be renewed; that no mining lease application had been lodged over the land covered by EL 7242; that no drilling on the land had taken place; and that his expectation as to the amount and value of the gold in the land was no more than an estimate, the observation was an understatement.

195. Third, by contrast, if the 2009 modification approval were to be set aside and an injunction issued, then, as the unchallenged evidence of Mr Commins demonstrated, the prejudice to Westlime would be severe, with a significant fall in its revenue and concomitant job losses the likely consequence.

196. Thus, in light of the fact that there is no evidence of any environmental harm arising from the operation of the 2009 modification application; that, although a commercial operation, the operation of Westlime is nevertheless in the public interest insofar as it is one of the few providers of high quality road base to local councils and the State government; that the 2009 modification approval was the subject of environmental assessment and was supported by a detailed SEE (in 2008); that the 2008 modification application was publically notified; that there is unexplained delay in commencing the proceedings to set the 2009 modification approval aside; and that AEI would suffer limited prejudice if the relief were refused, whereas the impact on Westlime would be quite detrimental, the Court would be disinclined to exercise its discretion to set the modification approval aside and to grant the injunctive relief.

197. The same conclusion cannot, however, be arrived at in respect of the 2012 modification approval. In relation to that approval there was no real delay in bringing the proceedings to have it set aside (the summons was filed on 5 November 2012 and the approval was granted on 7 August 2012) and while no prejudice would flow (for the reasons given above) to AEI were the relief refused, there is likewise no evidence of any prejudice to Westlime if the relief were granted.

Orders

198. In conformity with the reasons given above, the orders of the Court are as follows:

1. the amended summons is dismissed;

2. the applicant is to pay the first and second respondent’s costs of the proceedings; and

3. the exhibits are to be returned.

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Amendments

17 July 2015 - reformatted table of contents and removed duplicate paragraph numbering in [15]

13 July 2015 - Coversheet - hearing dates added

Decision last updated: 17 July 2015