Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd & Ors [1998] Nswlec 316 (18 December 1998)
[1998] NSWLEC 316
•12/18/1998
Land and Environment Court
of New South Wales
CITATION: BAULKHAM HILLS COUNCIL v. DIXON SANDS (PENRITH) PTY LTD & ORS [1998] NSWLEC 316 (18 December 1998) [1998] NSWLEC 26 PARTIES: BAULKHAM HILLS COUNCIL v. DIXON SANDS (PENRITH) PTY LTD & ORS [1998] NSWLEC 316 (18 December 1998) FILE NUMBER(S): 40130 of 1998 CORAM: Lloyd J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning & Assessment Act, s 124(1);
Sydney Regional Environmental Plan No 4.CASES CITED: Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197;
Associates Mineral Consolidated Limited v Wyong Shire Council (1974) 2 NSWLR 681 at 692;
F Hannan Pty Ltd v Electricity Commission of NSW (1985) 66 LGRA 306 at 313;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-342, 346-347). ;
Associated Minerals Consolidated Limited v Wyong Shire Council;
Attorney-General v Newry No 1 Rural District Council (1933;
F Hannan Pty Ltd v Electricity Commission of NSW;
Blacktown Municipal Council v Friend, Mahoney J (at 197) ;
Norbris v Norbis (1986) 161 CLR 513;
Warringah Shire Council v Sedvcic ;
Associated Minerals Consolidated Limited v Wyong Shire CouncilDATES OF HEARING: 23, 24, 25, 26, 27 & 30 November 1998 & 1 December 1998 DATE OF JUDGMENT:
12/18/1998LEGAL REPRESENTATIVES: Respondent P McEwen SC with J R McKenzie (24.11.98 -
S B Austin QC with R J H Darke
1.12.98) and P G Newton
JUDGMENT:
1. This is a case about sand mining. The first respondent is a corporation which carries on the business of sand mining. It has been carrying on such business since it was formed in 1981. The first respondent operates two sand mining sites, one being at Agnes Banks from which it has operated for many years and the other at portions 196 and 29 Old Northern Road, Maroota, within the area of the applicant.
2. This case is about the first respondent's mining operations at Maroota. The second respondent, Manaldo Pty Ltd is the owner of portion 196. The third respondent, Konstantinos Gouskos is the owner of portion 29. Since the commencement of the case, however, the third respondent has died. Probate of the third respondent's estate has not yet been granted. Accordingly the proceedings against the third respondent, in the absence of a legal personal representative, cannot at present be continued.
3. Mr S B Austin QC and Mr R J H Darke appear for the applicant. Mr P J McEwen SC, Mr J R KcKenzie and Mr P G Newton appear for the first and second respondents.
4. By amended application the applicant seeks an order restraining the respondents from using portions 196 and 29 at Maroota for the purpose of an extractive industry and sand mining or for any other purpose until such time as a development consent permitting any such use is granted.
5. By an agreement made on 10 January 1992 the second respondent granted a licence to the first respondent to enter portion 196 for the purpose of sand extraction and sand mining. A similar agreement was made between the third respondent and the first respondent in relation to portion 29.
6. On 3 November 1993 the applicant granted development consent for sand mining on portions 196 and 29, subject to conditions. The development consent was expressed to become effective twenty eight days thereafter, so that although granted on 3 November 1993 it did not become effective until 1 December 1993. One of the conditions of consent (condition 6) is as follows:
"6. Consent for the purpose of extraction of material is limited to a period of five (5) years from ."
The parties have agreed that, notwithstanding the absence of any date in condition 6, the period of five years operates from the date upon which the consent became effective, so that the consent expired on 1 December
7. On 15 September the first respondent (with the consent of the second and third respondents) applied to the applicant for modification of the development consent under s 96(2) of the Environmental Planning & Assessment Act 1979 ("the Act") to substitute the period of six years for five years in condition 6. The purpose of the modification was to enable the development to continue whilst a fresh development application for sand extraction was prepared, submitted to the applicant and considered. On 3 November the respondents commenced proceedings in Class 1 of this Court's jurisdiction under s 96(6) of the Act against the failure of the applicant to determine the application to modify the consent as sought.
8. The applicant's claim is thus based on the expiry of the development consent. Mr Austin QC submits that the consent having expired, the respondents are continuing the extraction of sand without development consent contrary to s 76A(1) of the Act. Mr McEwen SC, on behalf of the respondents, consents to an order as sought by the applicant but submits that in the exercise of the Court's discretion the order should be suspended for twelve months. This would permit sand mining to continue whilst the fresh development application together with the supporting environmental impact statement is prepared, submitted to and considered by the applicant. In response to this submission, Mr Austin submits that the Court should not exercise its discretion in favour of the respondents. The Court should not do so, in his submission, because the development is designated development and thus has special status under the Act; the development is now being carried out without any consent at all; the respondents are and always have been in breach of a number of conditions of the expired consent; that considerations of commercial practicality have governed the conduct of the work on the land rather than the provisions of the conditions of consent and the terms of the environmental impact statement incorporated therein; and the respondents have only themselves to blame for their present predicament in not preparing a fresh development application and fresh environmental impact statement earlier.
9. The case was thus mostly concerned with questions as to whether the respondents and in particular the first respondent as the operator of the sand mining activity are and have been in breach of a number of conditions of the development consent and whether the development has been carried out in accordance with the environmental impact statement which is incorporated therein. The evidence on these questions occupied several days of hearing and is considerably detailed. I do not propose to examine that evidence in detail. Instead, I shall refer in a general way only to those matters of which I am satisfied that the respondents are or have been in breach.
10. Conditions 1 and 2 . These conditions are as follows:
"1. Temporary vehicular access directly to Old Northern Road be permitted subject to any requirements of the Roads and Traffic Authority and Council until such time as access may be obtained along the haul road as defined in DCP 108.
2. The applicant grant to Council a right of way on terms and conditions as determined by Council for the benefit of extractive industry traffic over its land on portions 196 and 29 as shown in DCP 108."
11. The first respondent, which is carrying on the sand mining activity on portions 196 and 29 pursuant to its licence agreements made with the first and second respondents, has continued to use the temporary vehicular access described in Condition 1. There has never been any attempt to comply with condition 2.
12. Development Control Plan No 108 ("DCP 108"), referred to in Condition 2, provides for an internal haulage road for vehicles to by-pass Maroota village. The haulage road is shown in DCP 108 as passing over several properties and it provides for a limited number of access points onto Old Northern Road and Wisemans Ferry Road.
13. On 6 April 1994 the applicant for development consent (the second respondent) made an application for modification of the consent pursuant to s 102 of the Act as it then was (now s 96). The modification sought was to delete Condition 2 in its entirety and to amend condition 1 to, inter alia, delete the reference to it being a "temporary" vehicular access. The application for modification was refused by the applicant on 6 July 1994. The second respondent appealed to the Court against such refusal. The appeal was heard by Pearlman J over eight days and in a reserved judgment delivered on 6 October 1995 her Honour dismissed the appeal and refused the application to modify the consent. Pearlman J did so for two reasons, firstly as a matter of merit taking into account the planning context specified in the relevant environmental planning instruments and secondly on discretionary grounds.
14. In 1997 the applicant adopted Development Control Plan 500 ("DCP 500"), which supersedes DCP 108. DCP 500 continues the concept of an internal haulage road with a limited number of access points onto Old Northern Road and Wisemans Ferry Road. The location of the haulage road, however, is not specified in the precise manner in which it is done in DCP 108. That is to say, there is room for a degree of flexibility in the precise location of the haulage road under DCP 500.
15. Nevertheless, Condition 2 has remained as a condition of development consent. It requires the haulage road as shown on DCP 108. The respondents have now rendered compliance with Condition 2 impracticable. They have extracted sand from within portion 29 at the site of the haulage route, so that there is now an excavation some 18 metres deep at that location.
16. The respondents have offered in these proceedings an alternative haulage route which skirts the boundaries of portion 29. They make this offer in lieu of complying with Condition 2. The respondents are effectively asking the Court to waive the need to comply with Condition 2 and to substitute another route for a haulage road which is different to that shown in DCP 108. The respondents rely upon DCP 500 as evidencing an abandonment of the haulage route specified in DCP 108.
17. In this case, however, the Court is not the consent authority. Neither the applicant nor the Court is in a position to properly assess the impact of the alternative route for the haulage road now propounded by the respondents. Moreover, the development is designated development. There may be objections or submissions from other affected landholders and from the general public which would have to be considered. It is not appropriate in this case for consideration to be given to a major change in the carrying out of the development such as this. The respondents will have the opportunity of propounding such a route in any further development application for sand mining on this land and it can then be given proper consideration. The present Condition 2 is specific. It was accepted by the respondents as a condition of development consent, since there was no appeal against it, nor against any of the other conditions of the consent. As noted in paragraph 13 above, an application to modify the development consent in relation to conditions 1 and 2 was refused by the applicant and an appeal against that was refused by Pearlman J on merit grounds and on discretionary grounds. These conditions should have been complied with.
18. Condition 3 . This condition states:
"3. A building application being submitted to Council for approval for any structure proposed to be erected."
19. A number of buildings have been erected on portion 196 in contravention of this condition. The applicant does not, however, require the demolition of such buildings. Notwithstanding the absence of building approvals, the applicant has issued construction certificates relating thereto under Part 4A of the Act. Although the first and second respondent have infringed Condition 3, I accept that no environmental harm has resulted therefrom.
20. Condition 4 . This condition states:
"4. The applicant will make arrangements with Council's Extractive Industries Officer within six (6) months of the consent becoming effective, for the monitoring of all conditions of consent and for the monitoring of environmental damage mitigation practices identified in the Environmental Impact Statement."
21. This condition was not complied with within the period of six months described therein. It seems that it was, however, complied with outside the period of six months by the respondents' then consultant, Mr M G Drummond.
22. Condition 5. This condition states:
"5. The applicant will lodge with the Council a statement within six (6) months of the consent becoming effective of the manner in which all conditions of consent have been complied with."
23. Again, this condition was not complied with within the period of six months described therein. It seems that it was not complied with until 22 March 1996, some two years and four months after the consent became effective, when the respondents' then consultant, Mr M G Drummond furnished a statement to the applicant purporting to explain the respondents' non-compliance with a number of conditions and asserting that all other conditions are being complied with.
24. Condition 6 has been described in paragraph 6 above. The respondents are continuing to carry on their sand mining operations notwithstanding the expiry of the development consent.
25. Condition 8 . This condition states:
"8. Care is to be taken to ensure that all natural bushland directly adjoining the extraction site is not damaged."
26. I am satisfied by the evidence of Mr J P May, a development control officer employed by the applicant and who inspected the subject land on a number of occasions between November 1996 and October , that this condition has not been complied with. Mr May observed bund walls to control sedimentation had no grass or native plant cover along the exposed faces thereof in order to prevent the erosion of those faces. Mr May observed that other erosion and sedimentation controls were ineffective. He observed that sediment had entered bushland on the Crown land adjoining portion 196.
27. The respondents claim that this condition has now been complied with and in any event there has been little impact on the adjoining bushland. The respondents rely, inter alia, upon a report of an inspection made on by Mr M Hughes of the Hawkesbury-Nepean Catchment Management Trust and on the absence of any complaint by the Environment Protection Authority. Mr Hughes had found no major problems. Mr Hughes, however, did not give evidence. Mr May's evidence was that his most recent inspection, on 16, disclosed a continuing problem of the discharge of sediment into the adjoining Crown land. I have no hesitation in accepting the evidence of Mr May.
28. Condition 9 . This condition is as follows:
"9. The applicant is to monitor dust generation from the extractive operations and associated activities. If a dust nuisance is identified, then the applicant is to immediately inform Council's Extractive Industries Officer and implement any mitigation practice required by the Extractive Industries Officer."
29. There was no dust monitoring as required by the first part of this condition until earlier this year, when dust monitoring equipment was installed, over four years late. I accept the respondents' assertion that no identified dust nuisance has occurred and that stockpiles and roads have been watered where necessary for dust control. Neither has there been any evidence of uncovered loads on trucks leaving the site.
30. Condition 13 . This condition states:
"13. The area of land disturbed for the purpose of extraction shall not exceed the area as detailed in the Environmental Impact Statement accompanying the application."
31. The respondents are in breach of this condition in two respects:
(i) the environmental impact statement ("the EIS") referred to in condition 13 describes the existence of a rare plant kunzea rupestris in the western part of portion 29. The EIS also states:
"A buffer of 50 metres will be provided for the protection of the kunzea rupestris ."
This statement means that there will be no extraction within a buffer area of 50 metres to the kunzea rupestris in the western part of portion 29. The location of the kunzea rupestris and of the 50 metre buffer zone is clearly shown on a plan in the EIS (fig 8) and in the supplementary report to the EIS (fig 4). The excavations within portion 29 come to about 50 metres of the western boundary of portion 29, within which is contained the kunzea rupestris . No buffer area to the kunzea rupestris as described in the EIS has been provided.
(ii) The EIS states:
"A ten metre wide buffer zone incorporating screening vegetation will be established along all boundaries unless otherwise noted."
The ten metre wide buffer zone is also clearly shown in fig 8 in the EIS and in fig 4 in the supplementary report to the EIS. The respondents assert that the extraction plan (fig 10 in the EIS and fig 5 in the supplementary report to the EIS) show extraction right up to the property boundaries. The figures showing the extraction plan, however, are diagrammatic and must give way to the clear statement of intention in the EIS as to the creation of the buffer zone. The respondents also assert that the ten metre setback derives from DCP 108, under which the setback is said to apply to any boundary to a property not used for extractive industry. I have examined DCP 108 and can find no such limitation: it provides for a setback to roads and property boundaries. In any event, despite what may be inferred from DCP 108 the terms of the EIS are clear and must be complied with. The respondents are not free to pick and choose which conditions they will comply with based upon their understanding of the reasons therefor. Portion 29 has been excavated up to its western and up to its northern and southern boundaries with the adjoining Crown road, in contravention of the EIS and thus in contravention of this condition.
32. Condition 15 . This condition states:
"15. The depth of the proposed extraction shall be limited to 15.24 metres AHD."
33. Mr McEwen at first faintly suggested that this condition read literally meant that the respondents were permitted to extract material to a depth of 15.24 metres AHD. Since the subject land is at an elevation of about 170 metres AHD, this would mean that the respondents could excavate to a depth of some 150 metres below the existing surface. Mr Austin submits that the condition simply meant that extraction is limited to a depth of 15.24 metres below the level of the existing surface: this is the only sensible meaning of the condition. Mr McEwen seems to have accepted the force of Mr Austin's argument and has not pressed upon me a literal interpretation of the condition. That is to say, Mr McEwen does not now contend for a literal application of the condition: it simply limits the depth of any excavation to 15.2 metres below the surface.
34. The respondents are nevertheless in breach of this condition. The excavation made within portion 29 is generally greater than 15.24 metres. The part of portion 29 that has been excavated is up to 18.7 metres deep.
36. Condition 18 . This condition relates to the hours of operation. It limits the extraction, transportation and processing or the running of machinery for maintenance purposes to the hours of 7 am to 6 pm on Mondays to Fridays, between 7 am and 1 pm on Saturdays and at no time on Sundays and public holidays. Drivers and clients must not arrive at the site before 6.45 am on any day. On 11 December 1996 the applicant granted consent to an application to modify the development consent by substituting 6 am for 7 am and 5.45 am for 6.45 am.
37. There have been breaches of this condition by the occasional arrival of trucks before 5.45 am, but only by periods of about 5 to 10 minutes. There is no evidence of any complaints as a consequence of such breaches. There is also one instance of work being carried out on a public holiday (Anzac Day) which resulted in a complaint by a competitor who is subject to similar operating hours. I accept that these breaches are minor. I also accept Mr Austin's submission, however, that although minor, when considered together with the other breaches of conditions, they are indicative of a general approach to the conditions which is governed by considerations of commercial expediency more than by a desire to comply therewith.
38. Condition 22 . This condition specifies the monetary contributions payable under s 94 of the Act, including the amount and timing of such payments. The payment required by the condition is the sum of 57 cents per tonne of all processed material transported from the site. The condition requires the submission to the applicant of monthly returns showing the quantities of extractive material transported from the site during the preceding month, together with the payment of the contribution calculated in accordance with the condition.
39. The only breach of this condition is the slowness of the submission of the monthly returns and the associated payments. In other words, there is no doubt that the respondents have been in breach of this condition, but only as to the timing of payments.
40. Condition 23 . This condition states:
"23. The development is to be carried out in accordance with details submitted with the application and accompany EIS and additional information."
41. Some of the provisions of the EIS are incorporated into particular conditions of consent, such as condition 13 which I have discussed in paragraphs 30 and 31 above. Some other specific provisions of the EIS which are not the subject of particular conditions of the consent have also been breached by the respondents.
42. The EIS refers to traffic at the intersection of Old Northern Road and the access road to the site. The EIS states that the intersection will be upgraded to a Type A intersection as detailed in the NAASRA/Austroads recommendations. Nothing has been done to upgrade the intersection.
43. The EIS states:
"Extraction and rehabilitation is carried out on a staged basis to minimise the area open for extraction."
Under the heading "Planned Extraction Sequence" the EIS refers to the fact that two distinctly different coloured sands are found at the site. The EIS then states:
"As both of these sands are readily marketable, extraction of these areas will be carried out simultaneously. It is proposed that extraction of the yellow sand will take place in four stages and extraction of the white sand in six stages as shown on fig 10 Extraction Plan. ...
As each area is opened for extraction, the preceding area will be prepared for rehabilitation, thus minimising the extent of disturbed areas at any one time."
Fig 10, the Extraction Plan in the EIS is effectively repeated as fig 5 in the supplementary EIS. It shows the various areas of both white sand and yellow sand which are to be worked in stages as described.
44. These sections of the EIS and of the supplementary EIS have been completely ignored. It seems that no attempt has been made to comply with them. Most parts of the site to be worked appear to have been worked simultaneously rather than sequentially as proposed, with the consequence that the area open for extraction has not been minimised. None of the initial areas to be worked as shown on fig 10 on the EIS or in fig 5 in the supplementary EIS have been prepared for rehabilitation.
45. The EIS was approved on the basis that there would be an orderly sequence of extraction and rehabilitation. The applicant has, since 11 July 1966, on several occasions written to the first respondent asking it to rectify these operational deficiencies, including the work of rehabilitation. The respondents' then consultant, Mr Drummond, advised the applicant by letter dated 3 June 1966 that "the Extraction Plan is indicative only" and "clearly it would not be feasible to extract to a depth of 15 metres in one square, rehabilitate, then move onto the next". The letter goes on to state that the first respondent would, if necessary, lodge an application for modification of the consent (under the then s 102 of the Act) on this issue. Mr Drummond also advised the applicant by letter dated 22 March 1966 that "commercial decisions and site specific problems have slightly altered the order of extraction". No application has been made for modification of the development consent to vary the operational and rehabilitation provisions of the EIS.
46. Mr McEwen submits that it is unrealistic for the applicant to insist on the operational and rehabilitation measures stated in the EIS. The applicant's knowledge of the site and of the way in which it was previously worked suggests, in his submission, that the applicant must have understood that a degree of flexibility was required in working the site. I do not agree. The EIS is specific on this issue. If the site had been previously worked in the manner suggested by Mr McEwen, then the EIS presents a method of working and of rehabilitation which departs from previous practices.
47. The EIS describes the plant and equipment to be employed on the site. This includes one dry screening plant and one wet screening plant. Whilst there is a dry screening plant on the site, there is no wet screening plant. Instead there is a wet scrubber. I do not know what the environmental consequences are of substituting a wet scrubber for a wet screening plant. I am satisfied, however, that it is a different plant and it operates differently. Again, no application has been made to modify the development consent to reflect the change in plant.
48. I am thus satisfied that, in addition to the specific conditions to which I have referred (Conditions 2, 3, 4, 5, 6, 8, 9, 13, 15, 18 and 22), there has been and continues to be three departures from the EIS contrary to Condition 23.
49. Mr McEwen submits that nevertheless the Court should exercise its discretion in favour of the respondent and suspend the order sought by the applicant for a period of twelve months. Mr McEwen's submissions, as I understood them, may be summarised as follows:
(i) Notwithstanding the breaches of the conditions of development consent and the departures from the EIS, there has generally been compliance therewith and there are valid explanations for the departures therefrom.
(ii) The resource on the site is of strategic significance. This significance is recognised by Sydney Regional Environmental Plan No 9 , which includes the site as land which contains extractive material of regional significance. The Maroota district, including the subject site, is a major supplier of bricklayers sand to the building industry in the Sydney region.
(iii) The specific haul route in DCP 108 has now been abandoned and there is thus no reason why the existing haulage route used by the first respondent should not continue to be used.
(iv) The first respondent has generally been frustrated in its dealings with the applicant throughout the duration of the consent.
(v) The applicant has been aware of the conditions on the site and the methods by which it is being worked since September 1995, when its officers first visited the site following the grant of development consent. Accordingly, the present conditions on the site and the manner in which it is being worked do not appear to be viewed seriously by the applicant. The applicant's delay in seeking to enforce the terms of the EIS and the conditions of consent suggest that a delay in any orders to be made is entirely appropriate.
(vi) The applicant has displayed a lack of even-handedness, in that whilst it has brought the present proceeding against the respondents it has apparently ignored breaches of consent committed by the first respondent's competitor in Maroota, Etra Pty Ltd t/as P F Formation.
(vii) An injunction would impose considerable hardship on the first respondent. It would shut down the first and second respondent's cash flow, as well as the cash flow of the estate of third respondents. It would impact on the first respondent's customers. It would put the first respondent's goodwill at risk. It would mean that plant worth about $6.5 million would lie idle. The first respondent's twelve employees at the site would have to be dismissed, with a consequential impact on their dependents.
(viii) The site has been previously disturbed by sand mining before the commencement of the subject development consent. The respondents' operations have had a minimal overall impact on such an already disturbed site.
(ix) There would be no adverse environmental effect if the sand mining continues whilst a fresh development application and accompanying EIS is prepared, submitted and considered. There have been no complaints by other authorities about the respondents' activities on the subject land.
(x) The respondents have exhibited a desire to comply with the EIS and the conditions of development consent "in a reasonable fashion".
50. Section 124(1) of the Act provides that where the Court is satisfied that a breach of the Act has been committed or that a breach of the Act will, unless restrained by order of the Court, be committed, it may make "such order as it thinks fit to remedy or restrain the breach". The width of the Court's discretion has long been recognised ( Blacktown Municipal Council v Friend (1974) 29 LGRA 192 at 197, Associates Mineral Consolidated Limited v Wyong Shire Council (1974) 2 NSWLR 681 at 692, F Hannan Pty Ltd v Electricity Commission of NSW (1985) 66 LGRA 306 at 313, Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 339-342, 346-347).
51. Appellate courts have generally shown a reluctance to confine or limit the width of the Court's discretion in cases such as this. If anything appellate courts have emphasised that the discretion is unconfined. In Associated Minerals Consolidated Limited v Wyong Shire Council , the Privy Council, after noting that the granting of an injunction is discretionary, said (at 692):
"Secondly, however, it is necessary to take into account that the plaintiff is acting on behalf of the public and in the public interest. It is necessary, therefore, to base the granting or denial of equitable relief on broader grounds than would normally apply as between private citizens. As was said in Attorney-General v Newry No 1 Rural District Council (1933) NI 50 at p 71, the courts are somewhat slower to deny the Attorney-General, as the custodian of the public rights, relief on this ground (sc. delay) than in the case of an individual."
52. The width of the Court's discretion under s 124 is explained by Street CJ in F Hannan Pty Ltd v Electricity Commission of NSW . Street CJ noted that "The Court is given an extremely wide charter"; and that the phrase "make such order as it thinks fit" in s 124(1) "empowers the Court to mould the manner of its intervention in such a way as will best meet the practicalities as well as the justice of the situation before it" (at 311). Street CJ also stated (at 313):
""The precise manner in which the Court will frame its orders in the context of particular disputes is ultimately the discretionary province of the Court to determine in the light of all the factors falling within the purview of the dispute."
53. In Blacktown Municipal Council v Friend , Mahoney J (at 197) accepted that the discretion which the Court has to grant or refuse relief is a discretion which is not fettered or limited to special cases. Mahoney J also said:
"It is not necessary, nor is it in my opinion desirable, to attempt to delineate the matters by reference to which a court's discretion to refuse an injunction in such a case as the present ought to be exercised."
54. In Norbris v Norbis (1986) 161 CLR 513 , Wilson and Dawson JJ in referring to a discretion conferred upon a court, preferred the accumulated wisdom of a case by case approach rather than attempt to formulate guidelines. Their Honours said (at 533-534):
"The authoritative guidance available to aid in the resolution of the next case case lies in that accumulated wisdom. It does not lie in the abstract formulation of principles or guidelines designed to contain judicial discretion within a predetermined framework."
55. In the same case, Brennan J said (at 537):
"It is one thing to say that principles may be expressed to guide the exercise of a discretion; it is another thing to say that the principles may harden into legal rules which would confine the discretion more narrowly than the parliament intended. The width of a statutory discretion is determined by the statute; it cannot be narrowed by a legal rule devised by the court to control its exercise."
56. Despite these cautionary words, Kirby P in Warringah Shire Council v Sedvcic bravely ventures a number of guidelines applicable to the exercise of the Court's discretion under s 124 of the Act. Having regard to the width of the discretion, including the principles explained by their Lordships in Associated Minerals Consolidated Limited v Wyong Shire Council noted in paragraph 51 above and in the guidelines advanced by Kirby P in Warringah Shire Council v Sedevcic , I am not persuaded that the respondents should receive the benefit of such discretion.
57. I have come to the view that the applicants should not receive the benefit of the Court's discretion for the following principal reasons.
* the sand mining is now being carried out on the land without consent;
* the sand mining being carried out on the land is designated development. The development thus has special status under the Act, which includes the involvement of others as well as the applicant. The Act requires the views of members of the public and other authorities to be taken into consideration before such development is to be permitted. It would be contrary to the scheme of the Act to allow the development to continue without consent;
* the development has been carried out in breach of several of the conditions of the consent and in breach of the provisions of the EIS and the supplementary report to the EIS. I have referred in paragraphs 10-48 above to these breaches, some of which are continuing;
* many of the breaches of conditions and of the provisions of the EIS have been influenced by considerations of commercial expediency. That is to say, where considerations of commercial expediency have, in the respondents' views, outweighed the requirements of the conditions of development consent and the provisions of the EIS, the considerations of commercial expediency have prevailed;
* apart from the hours of operation, the haulage road and the five year limit to the term of the consent, no application has been made to modify those conditions of consent or provisions of the EIS which are said to be commercially impractical. The respondents have instead unilaterally decided that any inconvenient conditions or provisions will be simply ignored;
* many of the breaches have had adverse environmental consequences. For example, the failure to grant the right of way for the haulage route has resulted in traffic being adjacent to the area occupied by the rare plant kunzea rupestris ; the ineffective sediment controls have resulted in sediment entering bushland on the adjoining Crown land; sand mining has been undertaken within the 50 metre buffer to the kunzea rupestris , thus compromising the survival of that rare plant; the absence of the ten metre vegetative buffer has meant that there is no visual screening to the development; the excavation below a depth of 15.2 metres has thus created a deeper excavation which in turn makes compliance with condition 2 impractical and rehabilitation more difficult; the breach of operating hours, intended to limit the times at which trucks enter and leave the site, may well have had an adverse impact on residents who live along Old Northern Road; and the abandonment of the extraction plan and of staged extraction and rehabilitation has resulted in almost the whole site remaining in a disturbed state;
* the applicant is the body charged with the duty and responsibility of administering the Act within its area. It is thus acting on behalf of the public and in the public interest. The Court is thus less likely to deny relief than it would in litigation between private citizens;
* it seems to me that the respondents have, throughout the whole of the period of the consent, been motivated by considerations of commercial expediency when such considerations conflict with the conditions of development consent and the provisions of the EIS;
* as noted by Mahoney JA in Warringah Shire Council v Sedevcic (at 346):
"The courts have, under the various planning regimes, emphasised the significance of compliance with planning requirements and the danger of allowing individual hardship in particular cases to erode the general operation of planning schemes. These considerations are no less relevant at the present time."
This consideration, it seems to me, has even greater force where the case is one which involves designated development;
* the present predicament in which the respondents find themselves is entirely of their own making. They knew when the development consent was to expire. The have only belatedly set about preparing a new EIS for a new development application to continue the sand mining. They have belatedly made an application for the modification of the consent pursuant to s 96 of the Act by amending Condition 6 to provide them with an additional period of twelve months;
* in short, I do not think that the respondents can be trusted. I have considerable doubts as to their willingness to comply with all the conditions of the development consent and the provisions of the EIS which are in conflict with considerations of commercial expediency. The respondents' conduct suggests the contrary;
* whilst there may be some financial penalty as a consequence of the respondents' activities being restrained, I note that there is evidence that the subject land is not the only source of income of the first respondent. It has other sand mining activities elsewhere, which will continue to provide it with income. I also note that the agreement between the first respondent and the land owners (the second and third respondents) may be terminated by them if sand extraction is no longer possible. If as a consequence of the Court's orders in this case the agreement is terminated, then the land owners would, it seems, be free to enter into another agreement with some other operator.
58. Accordingly I make the following orders:
1. The first and second respondents, their respective servants and agents abstain from using, permitting to be used or causing to be used the land being lots 196 and 29 in Deposited Plan 752025 within the Parish of Cornelia and County of Cumberland and being contained in Folio Identifiers respectively 196/752025 and 29/752025 situate on Old Northern Road at Maroota for the purposes of an extractive industry and sand mining (except for works of remediation or restoration) until such time as a development consent permitting any such use is granted.
2. The question of costs is reserved.
3. The exhibits may be returned.
I certify that the 27 preceding pages are a true copy of the reasons for judgment herein of the Honourable Mr Justice Lloyd.
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