CEAL Ltd v Minister for Planning - [2007] NSWLEC 302

Land and Environment Court

of New South Wales

CITATION: CEAL Limited v Minister for Planning & Ors [2007] NSWLEC 302

PARTIES:
APPLICANT
CEAL Limited
FIRST RESPONDENT
Minister for Planning
SECOND RESPONDENT
Goulburn Mulwaree Council
THIRD RESPONDENT
Gregory Douglas Gibbons

FILE NUMBER(S): 10245 of 2006

CORAM: Jagot J - Watts C

KEY ISSUES: Appeal :- designated development - State significant development - quarry - road upgrading - insufficient information to assess impacts of road upgrading - impacts on zoned village - amenity - appeal dismissed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005
Land and Environment Court Act 1979
Roads Act 1993
Mulwaree Local Environmental Plan 1995
Environmental Planning and Assessment Model Provisions 1980
Environmental Planning and Assessment Regulation 2000

CASES CITED: BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 ;
Goldberg v Waverley Council [2007] NSWLEC 259;
New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303;
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 ;
Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687;
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Ors (1980) 145 CLR 485;
Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329;
Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 3/5/07, 4/5/07, 7/5/07, 8/5/07, 9/5/07, 14/5/07, 15/5/07, 16/5/07

DATE OF JUDGMENT:
19 June 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr C McEwen SC with Mr A Pickles
SOLICITORS
Bowen & Gerathy
FIRST RESPONDENT
Ms S Duggan
SOLICITORS
Department of Planning
SECOND RESPONDENT
Mr A Galasso SC
SOLICITORS
Minter Ellison
THIRD RESPONDENT
N/A
SOLICITORS
Clayton Utz

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

19 June 2007

10245 of 2006

CEAL LIMITED
Applicant

MINISTER FOR PLANNING
First Respondent

GOULBURN MULWAREE COUNCIL
Second Respondent

GREGORY DOUGLAS GIBBONS
Third Respondent
JUDGMENT

Jagot J:

A. The appeal

1 This appeal concerns whether development consent should be granted to a proposed sand and hard rock quarry.

2 On 2 August 2005 the Minister for Infrastructure and Planning determined development application (DA-10-1-2005), proposing the establishment of a sand and hard rock quarry at Ardmore Park, 5152 Oallen Ford Road via Bungonia (lot 124 in deposited plan 1001312), by refusing development consent for three reasons as follows:

(a) The predicted heavy vehicle movements associated with the proposal would result in unacceptable amenity and social impacts for residents along the proposed transport route, including Bungonia;
(b) The predicted heavy vehicle movements associated with the proposal cannot be accommodated without unacceptable risk to road users given the current serviceability of the proposed transport route; and
(c) The proposal as submitted is not in the public interest.

3 On 29 March 2006 the applicant, CEAL Limited trading as Multiquip Quarries, commenced this appeal against the Minister’s refusal of the development…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 302
Decision Date: 19 June 2007

CaseChat Overview and Summary

CEAL Limited sought development consent for a proposed sand and hard rock quarry at Ardmore Park, Oallen Ford Road, via Bungonia. The Minister for Infrastructure and Planning had refused the application on the basis that the proposal would result in unacceptable amenity and social impacts for residents along the proposed transport route, including Bungonia; the predicted heavy vehicle movements associated with the proposal could not be accommodated without unacceptable risk to road users; and the proposal as submitted was not in the public interest. CEAL Limited appealed the Minister's decision, and the Land and Environment Court was required to consider whether the proposed development should be granted consent. The Court concluded that the existing road infrastructure was inadequate to accommodate the consequences of the proposed quarry. The roads must be upgraded to accommodate those consequences. The upgrading, whether as proposed by the applicant's traffic engineer or the Minister's traffic engineer, involved a real potential for material environmental impacts. However, the environmental impacts of the upgrading and the capacity to effectively ameliorate those impacts could not be identified on any reasonably informed basis. There was also a real chance that the operations of the quarry, and its associated consequences, would interact with the nature and extent of the road upgrading, the conditions to which it might be subject and, in consequence, the associated environmental impacts. An assessment of the quarry under s 79C(1) as sought by the applicant, in these circumstances, ran a real risk of being incomplete or inappropriate. Accordingly, the Court found that the applicant's development application lacked merit and should be refused consent. The Court also found that the proposed development would have serious and unacceptable impacts on the amenity of the village of Bungonia. The Court concluded that the proposed development should be refused consent for this reason.

Orders