Coalcliff Community Association Inc v Minister for Urban Affairs and Planning

[1999] NSWCA 317

Reported Decision: 106 LGERA 243

New South Wales

Court of Appeal

CITATION:	COALCLIFF COMMUNITY ASSOCIATION INC v MINISTER FOR URBAN AFFAIRS AND PLANNING & ORS [1999] NSWCA 317
FILE NUMBER(S):	CA 40660/97
HEARING DATE(S):	21 - 22 July 1999
JUDGMENT DATE:	31 August 1999
PARTIES :	Coalcliff Community Association Inc (Appellant) Minister for Urban Affairs and Planning (1st Respondent) Wollongong City Council (2nd Respondent) Metropolitan Collieries Ltd (3rd Respondent) Kembla Coal and Coke Ltd (4th Respondent)
JUDGMENT OF:	Meagher JA at 1; Stein JA at 2; Hodgson CJinEq at 91

LOWER COURT JURISDICTION:	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	LEC 40047/96
LOWER COURT JUDICIAL OFFICER:	Talbot J

COUNSEL:	P.W. Larkin/M. Green (Appellant) M.J. Leeming (1st Respondent) C.W. McEwen/ A. Pickles (2nd Respondent) J. Robson (3rd Respondent) N. Hemmings QC (Solicitor) (4th Respondent)
SOLICITORS:	Environmental Defenders Office (Appellant) Department of Urban Affairs and Planning (1st Respondent) Peedom Brodie and Ward (2nd Respondent) Blake Dawson Waldron (3rd Respondent) Allen Allen & Hemsley (4th Respondent)
CATCHWORDS:	LAND AND ENVIRONMENT COURT - whether development consent had lapsed by virtue of s 99 Environmental Planning and Assessment Act 1979 - s 102 application for modification of consent - discretion to refuse to grant declaratory relief in respect of lapse of consent
ACTS CITED:	Environmental Planning and Assessment Act 1979 s 99, s 102, s 124
CASES CITED:	North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc (1992) 81 LGERA 132 Wollongong City Council v AIS (1998) 67 LGRA 51 ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 Irongates Pty Ltd v Richmond River Shire Council (unreported, Land and Environment Court, 6 March 1997) Hannan Pty Ltd v Elcom (No 3) (1985) 66 LGRA 306 House v The King (1936) 55 CLR 499 Lovell v Lovell (1950) 81 CLR 513 Smith v East Elloe Rural District Council [1956] AC 736 The Minister v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Tynan v Meharg (1998) 101 LGERA 255 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Fernando v Commissioner of Police (1995) 36 NSWLR 567 Transport Action Group Against Motorways Inc v RTA [1999] NSWCA 196
DECISION:	Appeal upheld with costs; Orders 5 - 8 made by Talbot J set aside; In addition to orders 1 - 4 made by Talbot J, the following orders made. Declare that the development consent granted by the first respondent (the Minister) on or about 8 November 1983 had lapsed pursuant to s 99 of the Environmental Planning and Assessment Act 1979; Declare that the fourth respondent (Kembla) has breached conditions 4, 5, 13 and 39 of the development consent; Declare that the modification of the development consent by the second respondent (Council) on or about 11 December 1995 is a nullity; Respondents to pay Appellant's costs of proceedings in the Land and Environment Court.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40660/97
LEC 40047/96
MEAGHER JA
STEIN JA
HODGSON CJ in EQ

Tuesday, 31 August 1999

COACLIFF COMMUNITY ASSOCIATION INC v MINISTER FOR URBAN AFFAIRS AND PLANNING & ORS

On 8 November 1983 the Minister for Planning and Environment granted a conditional development consent to the fourth respondent, Kembla Coal & Coke Pty Ltd (Kembla) for the emplacement of coal refuse at Maddens Plains, NSW. Condition 4 of the consent required the construction of an underground drift between the coal washery at Coalcliff and the dump site at Maddens Plains within 4 years of the date of consent. In the meantime, condition 5 permitted road haulage to be used to transport the refuse the dump. Condition 9 required that prior to the commencement of any work on the land relating to the development, Kembla had to enter into a deed of agreement with the Minister to provide that upon completion of coal mining it would transfer the subject land for public open space. Condition 13 further required the preparation and submission of an operations manual, covering all aspects connected with the emplacement area and drift, for approval prior to construction of the proposed development.

In July 1984 Kembla commenced to carry out work under the consent and continued its operations until 31 March 1991 when the mine closed. The drift was never constructed and at no time did Kembla enter into a deed of agreement with the Minister for the dedication of the land.

No dumping took place under the consent between 31 March 1991 and April 1995 when the third respondent, Metropolitan Collieries (Metropolitan) made an application under s 102 of the Environmental Planning and Assessment Act 1979 (the Act) to amend the consent to permit Metropolitan to transport coal refuse from its mine at Helensburgh. The modification application sought to delete the conditions of the consent granted to Kembla which related to the construction of the underground drift and restrictions on road haulage.

The Minister of Urban Affairs and Planning, the first respondent, delegated to the second respondent, Wollongong City Council (the Council) the task of determining Metropolitan’s application. The s 102 application was granted by the Council to Metropolitan in December 1995. The decision was challenged in the Land and Environment Court by the appellant, the Coalcliff Community Association Inc. It was argued that the modification of the consent was either invalid or a nullity. The appellant also sought a declaration that the original development consent had lapsed by virtue of the operation of s 99 of the Act.

Talbot J declared that condition 9 of the consent had been breached and made a number of orders requiring the Minister and Kembla to enter into an agreement to transfer the land the subject of condition 9. The appellant’s application was otherwise dismissed.

His Honour noted that conditions 9 and 13 were preconditions to commencement of any work on the site. As a result, the work done on the site and use prior to November 1995 was unlawful because of Kembla’s failure to comply with the two conditions. It followed that the work carried out on the site was prohibited by the consent and this did not amount to commencement of development within s 99(1)(a) of the Act.

In respect to the lapse of the consent his Honour refused, in his discretion, to grant any relief. His Honour held that the breach of condition 9 was a technical one, as was the breach of condition 13. In applying a purposive approach to condition 13, his Honour interpreted it as requiring two separate elements which were not interdependent. Because the drift was not constructed, the operations manual submitted had satisfied condition 13. Accordingly, his Honour held that the consent had not lapsed. Therefore, Metropolitan was entitled to act upon the consent and pursue the s 102 application.

In respect of the appellant’s argument that the Council had failed to consider the environmental consequences of recommencing dumping, his Honour held that the s 90 matters relevant to be considered under s 102(3A) of the Act were those confined to the modification application. The subject of the modification was held to be substantially the same development as approved. Talbot J did not permit the appellant to read a number of affidavits which sought to establish adverse environmental impacts of the recommencement of dumping.

On appeal , the following issues were raised:

1. Did the consent lapse on 8 November 1985 because work on the underground drift had not been commenced within the two years of it being granted?

2. If the consent had lapsed, should the Land and Environment Court have made a declaration to that effect and did his Honour’s discretion miscarry in so refusing?

3. Were the breaches of conditions 9 and 13 technical breaches?

4. If the consent had lapsed, was there any person entitled to act upon the consent for the purposes of making an application under s 102 Environmental Planning and Assessment Act 1979?

5. In considering the s 102 application, did the Council fail to have regard to the environmental consequences of the recommencement of dumping?

6. Did his Honour err in refusing the admit seven affidavits on the environmental effects of the recommencement of dumping tendered by the appellant?

The respondents also sought the leave of the court to re-argue the correctness of North Sydney Council v Michael Standley & AssociatesPty Ltd (1998) 43 NSWLR 468.

Held:

The work performed was in breach of the consent because it occurred before either condition 9 or 13 were complied with. Therefore, the consent lapsed on 9 November 1985 pursuant to s 99 of the Act because it had not been physically commenced within two years of the consent being granted. His Honour’s discretion, in refusing to grant the declaratory relief sought, miscarried. The breaches of conditions 9 and 13 were far from technical. They were extremely serious and made more serious by the deliberate acts of Kembla to avoid its obligations under the consent, which it was prepared to accept when the consent was granted. Given that the consent had lapsed on 8 November 1985 there was no consent in existence in 1985 which could lawfully be the subject of a modification application under s 102 and there was no person entitled to act upon the consent because it had ceased to exist. Accordingly, the purported s 102 approval by the Council and the Minister in 1995 was invalid and of no effect. Leave of the court was refused to re-argue North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468.

ORDERS

1. Appeal upheld with costs.

2. Set aside orders 5 - 8 made by Talbot J.

3. In addition to orders 1 - 4 made by Talbot J, make the following orders set out in paras 4 - 7 hereunder.

4. Declare that the development consent granted by the first respondent (the Minister) on or about 8 November 1983 has lapsed pursuant to s 99 of the Environmental Planning and Assessment Act 1979.

5. Declare that the fourth respondent (Kembla) has breached conditions 4, 5, 13 and 39 of the development consent.

6. Declare that the modification of the development consent by the second respondent (the Council) on or about 11 December 1995 is a nullity.

7. Order that the respondents pay the appellant’s costs of the proceedings in the Land and Environment Court.

*************

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40660/97
LEC 40047/96
MEAGHER JA
STEIN JA
HODGSON CJ in EQ

Tuesday, 31 August 1999

COACLIFF COMMUNITY ASSOCIATION INC v MINISTER FOR URBAN AFFAIRS AND PLANNING & ORS


JUDGMENT

1    MEAGHER JA: I agree with Stein JA and with Hodgson CJ in Eq. 2    STEIN JA:

Introduction

3 This appeal concerns a conditional development consent granted by the Minister for Planning and Environment on 8 November 1983 for the emplacement of coal refuse at Maddens Plains. The consent was granted to the 4th respondent, Kembla Coal & Coke Pty Ltd (previously known as Coalcliff Collieries Pty Ltd). The company operated a coal mine at Coalcliff and needed to dispose of its coal washery refuse. In July 1984 it commenced to carry out work under the consent, although precisely when is not entirely clear from the evidence. Its operations continued until 31 March 1991 when the mine at Coalcliff closed down. 4 It was a condition of the consent that an underground drift would be constructed between the coal washery at Coalcliff and the dump site at Maddens Plains within 4 years of the date of the consent. In the meantime, condition 5 of the consent permitted road haulage to be used to transport the refuse to the dump. After the expiration of 4 years the only method of transportation permitted by the consent was by the underground drift. The drift was never constructed. Another condition of the consent required that prior to the commencement of any work on the land relating to the development, the 4th respondent (Kembla) had to enter into a deed of agreement with the Minister to provide that upon completion of mining at its colliery at Coalcliff, it would transfer identified land (hatched blue on the plan annexed to the consent) to the Minister for public open space. It is common ground that at no time has this deed been entered into by Kembla. 5 No dumping took place under the consent between 31 March 1991 and April 1995 when Metropolitan Collieries Ltd (the 3rd respondent Metropolitan), having come to an agreement with Kembla, made an application under s 102 of the Environmental Planning and Assessment Act 1979 (the Act) to amend the consent to permit Metropolitan to place coal refuse from its mine at Helensburgh (11 km to the north of Maddens Plains) with all haulage to be via public roads. The modification application sought to delete the conditions of the consent which related to construction of the drift and restrictions on the use of road haulage after November 1987. 6 The Minister (the 1st respondent) delegated to the 2nd respondent, Wollongong City Council (the Council) the task of determining the application. The Council, with the concurrence of the Minister, granted the s 102 application in December 1995. This decision was challenged in the Land and Environment Court by the appellant, the Coalcliff Community Association Inc. It argued that the modification was either invalid or a nullity. Other relief was sought, including a declaration that the original consent granted by the Minister in 1983 had lapsed because of the operation of s 99 of the Act. The appellant was largely unsuccessful before Talbot J, although his Honour made a declaration of breach in relation to condition 9 of the consent. His Honour also made orders for the dedication of land under that condition. The application was otherwise dismissed.

The background facts - 1970 to 1983

7    To understand what occurred it is regrettably necessary to trace the history of the Maddens Plains waste emplacement in some detail. The story begins in 1970 when Kembla first proposed to use Maddens Plains for its coal refuse. In 1972 an application was made to the Council to dump 21m tonnes. The Council granted a limited 12 months consent for 150,000 tonnes in 1973, making it clear that haulage by road was temporary only. Also in 1973 a Public Inquiry was held by Mr Coffey into the preservation of the Illawarra escarpment with particular reference to the application then before the Council to create a 21m tonne waste dump. While the Commissioner concluded that there was no reasonable alternative for disposal other than surface emplacement, he noted the desirability of an alternative to road haulage and the Company’s preference for a belt conveyor. 8    In November 1976 Kembla made a development application to the Council to emplace 13m tonnes of refuse over 57 years. With the application it presented reports from its consulting engineers, Longworth and McKenzie. They advised that ‘all systems, with the exception of a conveyer constructed entirely within a drift, have adverse environmental characteristics’. They said that in spite of the cost advantages of trucking ‘the long term environmental factors are not considered acceptable’. The company indicated that it would ‘ignore’ its consultants’ recommendations. The Council’s Environment Committee supported the application but on the basis of a 10 year approval and transport by underground drift. The concurrence of the Planning and Environment Commission (the predecessor of the Department of Urban Affairs and Planning) was sought in May 1978. The Commission was concerned that road haulage should only be used in the short term and that the company agree to dedicate land as open space. 9    Concurrence was given by the Commission in August 1978 subject to four conditions. The third and fourth are material. They provided:

(iii) transport of coal waste being by way of an underground drift system and no emplacement beginning until Coalcliff Collieries Pty. Limited has made a substantial commencement to the installation of an underground drift system for transporting the coal washery refuse from the colliery to the emplacement site; and
(iv) an agreement between all persons having an interest in the land and the Commission being entered into to provide that, on completion of the Company’s colliery activities at Coalcliff, it will dedicate for Open Space purposes land consisting of the Illawarra Escarpment face and talus slopes with a further western strip linking existing or proposed Open Spaces to be negotiated, but to be generally in accordance with the attached plan.

10    Kembla informed the Minister that these conditions were unacceptable and asked him to vary them. In March 1979 the Minister declined. 11    However, by the end of 1981 Kembla changed its approach and wrote to the Council indicating that it accepted the Commission’s conditions. In relation to the drift it said:

We are prepared to construct such a drift and would advise that planning for the system is almost finalised. Subject to the development application being approved, we would anticipate that construction work could commence on the drift within 3 - 4 months. ….

12    Concerning the land dedication the company said:

We have instructed our Solicitors, Allen, Allen & Hemsley to prepare the necessary agreement which will provide for the dedication of the specified land for open space purposes upon completion of coal mining activities within the present leases of The Coal Cliff Collieries Pty. Limited. ….

13    On 17 May 1982 the Council conditionally approved Kembla’s development application. However, in December 1982 the Department of Environment and Planning stated that because of a ‘call-in’ of all coal applications by the Minister, he was the consent authority. It is common ground that the Council had no power to grant the consent, which has been treated as being invalid. The development application had therefore to be referred to the Minister. In the meantime, Kembla advised the Department that the drift was no longer economically viable. 14    In January 1983 the Council submitted the development application to the Department requesting that an interim period of 2 years be permitted for road haulage of the refuse. The company lobbied the Minister. The Department stated:

…. From the Government’s point of view, transport of the refuse material to the emplacement site is the most important issue, after agreement to the use of the site for refuse emplacement was given. Consistently, the Government has held the view that the transport mode should not be by road but rather a drift should be constructed up through the escarpment. This condition was part of the former Commission’s concurrence and was included in the invalid consent granted by Wollongong City Council in May, 1982. The Company has objected to this condition and requested its removal. ….

15    To respond to the company’s submission to delete the drift construction the Department suggested:

…. The approval for the whole project of 13 million tonnes should therefore require the drift still to be constructed, but rather than having to be commenced prior to any emplacement, as originally intended, it should be required to be constructed and commissioned by the time 1.2 million tonnes of refuse have been emplaced and not longer than four (4) years from the date of the consent. ….

The Minister’s consent

16    On 11 November 1983 the Minister granted the subject development consent to Kembla. The covering letter enclosing the consent stated:

…. The Minister’s consent is subject to conditions, including conditions relating to the construction of an underground drift, which is to be completed within four years from the date of the consent , or prior to the deposition of more than 1.2 million tonnes of coal washery refuse on the land. The aim of the conditions is to ensure that the development has the least damaging impact on the environment, …. [Emphasis added]

17    The consent contained 61 conditions. For the purpose of the proceedings the following conditions are relevant:

1. Subject to the provisions of clause 5 of this consent, the applicant shall not deposit more than 13 million tonnes of coal washery refuse on the land.
2. The applicant shall not, without the consent of the Council, deposit any material on the land other than coal washery refuse, which is not contaminated by oil, from the coal washery at the Coalcliff Colliery.
4. The applicant shall within four (4) years of the date of this consent construct at its own expense an underground drift for the transportation of refuse from the coal washery at Coalcliff Colliery to the land generally in accordance with the provisions of the plans prepared by Coal Development Services Pty Limited and bearing reference numbers 1306 to 1309 (inclusive), 1311 to 1318 (inclusive) and 1323 to 1325 (inclusive) copies of which are annexed hereto and marked with the letter “C”.
5. The applicant shall not -

(a) deposit more than 1.2 million tonnes of coal washery refuse on the land

or
(b) use the land for the purposes of a coal washery refuse emplacement area for a period of more than 4 years from the date of this consent, unless the construction of the underground drift referred to in condition 4 of this consent has been completed.
9. The applicant shall, prior to the commencement of any work on the land in relation to the proposed development, together with all other persons having an interest in the land enter into a deed of agreement with the Minister administering the Environmental Planning and Assessment Act, 1979 (hereinafter called “the Corporation”) to provide that upon completion of coal mining at Coalcliff Colliery the applicant will transfer free of cost - and - all encumbrances to the Corporation the land shown hatched blue on the plan annexed hereto and marked with the letter “F” for the purposes of open space.
13. An operations manual covering all aspects of operations connected with the emplacement area and the drift shall be prepared and submitted for the approval of the Council prior to the commencement of construction of the proposed development.
39. (i) Except as provided by paragraph (ii) of this condition, no coal washery refuse shall be brought to the land from any other place by means of any public road;
(ii) The applicant may, for a period of not more than four years from the date of this consent, carry coal washery refuse to the land by means of public roads PROVIDED THAT the total amount of coal washery refuse brought to the land by this method in that period shall not exceed 1.2 million tonnes;

18    Kembla accepted the consent with reservations. For example, in relation to the drift construction, the Managing Director commented:

‘Politically unacceptable unless we agreed to this, however, in 2 years time we should approach Govt with latest appraisal of drift economics and seek further time extensions beyond 4 years from now’.

19    Mr Fraser instructed his managers to ensure that representations for the extension of time be made in 2 years time.

Implementation of the consent

20 Kembla set about implementing the consent which it had obtained. It liaised with the Council, which was involved with many of the conditions. In relation to condition 9 the company noted, on 15 December 1983, that documentation for the land dedication was being prepared by its solicitors and would be with the Department during January 1984. Indeed, a draft was forwarded to the Department on 13 February 1984. However, it was unacceptable to the Department. This is unsurprising since it was drafted in such a way as to defeat the intent of condition 9, see cll 1, 4(a) and (b). The Department proposed its draft, which was rejected by the company on 26 March 1984. 21 Meanwhile Kembla had been pressing the Council to give it the ‘all clear’ to commence the development in relation to conditions which were required to be satisfied prior to the commencement of any work on the site. On 4 April 1984 the Council advised the company that all conditions, save condition 9 (and one other with which we are not concerned) had been complied with. 22 On 26 June 1984 Kembla made representations to the Minister that condition 9 was unfair, particularly since it was also required to construct the drift. The company was prepared to compromise but the situation was urgent. If work did not commence in the first week in July 1984, then 900 workers would be stood down. In early July the company wrote to the Department stating that although it had strongly objected to the drift, it had accepted the condition because of its pressing need for an emplacement site. The letter stated that the company had foregone its right of appeal against conditions 4 and 5 in hope of a speedy start. In fact, Kembla had a right of appeal against any condition for 12 months up until November 1984. The letter to the Department also foreshadowed that the company would be making a s 102 application to amend the drift conditions. 23 The Minister responded to the company’s representations on 14 September 1984 indicating that he accepted the Department’s advice on condition 9. The Minister noted that the company intended to lodge an amendment application.

Kembla commences work on the site in breach of consent

24 As I have mentioned, it appears that Kembla commenced work on the site in July 1984. At that time, quite clearly, no deed had been entered into under condition 9, nor had any s 102 application been made. 25 The next thing which appears to have occurred is that the Department wrote to the company in April 1985 drawing attention to the fact that its first annual report (required by the consent) had been due by November 1984 but had not been submitted. This caused the company to obtain advice from Epps and Associates, Environmental Consultants. The advice, given to Kembla on 4 June 1985, is illuminating. 26 The document commences by stating that outstanding items need to be addressed in the annual report. The first was the status of the Deed of Dedication of Open Space and the second the progress on the drift construction. Epps recommended that the company resume discussions with the Department on both issues. Importantly, the report continued:

Negotiations concerning the Deed of Dedication were to have been finalised prior to emplacement commencing. As the Deed has not been finalised dumping is proceeding illegally and compromises all matters connected with the emplacement. [Emphasis added]

27    The same page of the document reiterates that the operations ‘are proceeding illegally’. This was clear notice to the company that it was operating illegally and in breach of the consent. 28    An internal document of the company dated 13 June 1985 confirms its knowledge that the use had been established notwithstanding that all of the consent conditions required to be complied with before work began, had not been. The internal report recommended acting upon the advice of Epps. Thereafter, discussions were held with the Department in August 1985. However, no agreement was reached on the deed required by condition 9, nor was any s 102 application made. 29 The next document of note is a company paper entitled ‘Problems History & Strategy’, dated February 1987. The document commenced by noting that the company was in breach of condition 9 regarding the dedication and that it should have been agreed prior to commencing dumping in 1983. The paper continued that the Deed of Dedication was still to be resolved and the drift construction was still required to be completed by November 1987. 30 According to the paper, the company had four options. To dedicate the land in accordance with condition 9; to retain condition 9 but ‘continue non-compliance’; to allow limited access by a licence or challenge the Minister’s inclusion of the condition in the Supreme Court. As to the drift, the options were to construct it, but this was seen as ‘not justified’ or ‘continue with trucks - non-compliance’. The recommendation of the paper was to submit a s 102 application to remove condition 9. If this was rejected, to propose a licence agreement. If this was rejected to ‘continue in non-compliance and if challenged Challenge Minister through Supreme Court’. 31 In March 1987 Kembla informed the Department that it would be making a s 102 application to address conditions 4 and 9. It sought discussions. According to meeting notes dated 11 June 1987 the company indicated that the drift was no longer viable. A licence agreement and a walking track was proposed in lieu of condition 9. The Department viewed a licence as a very poor substitute for land dedication. The company’s draft was available to the meeting and it provided that the licence was conditional on the deletion of condition 9 and on the Minister being responsible for the cost of construction and maintenance of the walking path. 32 On 1 July 1987 the company lodged a s 102 application with the Minister to delete the drift conditions. It may be noted that the consent required that the drift had to be constructed by November 1987, only 4 months off. Further, the s 102 application had been foreshadowed 12 months before and took that time to be lodged. Amazingly 17 days later it was withdrawn. In a change of tack Kembla advised that it was seeking legal advice on the drift condition.

The September 1987 s 102 application and cessation of mining by Kembla

33 Two months later, on 25 September 1987, a further s 102 application was lodged for modification of the drift conditions and to amend condition 9. At about that time an internal memorandum of the company noted that negotiations were occurring with the Department ‘to avoid land dedication’. Consequently ‘any studies we do on Maddens Plains should avoid clouding these present negotiations by indicating to outside groups that we may be considering subdivision’. [Emphasis added] 34 The September 1987 s 102 application requested the deferral of the drift construction for a further 5 years, ie. to November 1992, and to substitute a licence agreement for the dedication of land in condition 9. The application did not seek the deletion of the drift. However, what is obvious from the text of the application is that the drift would never be built if the consent was amended since a decision had already been taken to cease coal extraction from the Coalcliff mine by the end of 1990. Road haulage was proposed until the mine closure. 35 Kembla did not press the Department to process and determine the s 102 application nor did it seek to exercise its right of appeal. The fourth anniversary of the consent (8 November 1987) came and passed, no drift was constructed and road haulage continued, quite plainly in breach of the consent. 36 In May 1988 the Council wrote to Kembla drawing attention to conditions 4 and 5 of the consent and asking what action was being taken to comply. The company responded that it had made a s 102 application to the Department but added that coal production was to cease at Coalcliff by 1990. The Mining Minister formally consented to the suspension of mining operations at the Coalcliff Colliery from 31 March 1991. With the discontinuance of the coal mine at Coalcliff no more coal washery refuse was deposited at the dump at Maddens Plains. To that point of time 0.827m tonnes had been deposited under the consent. What is also clear is that the s 102 application was, for all intents and purposes, abandoned.

Metropolitan enters the scene

37    This is the end of the factual summary until Metropolitan Collieries Ltd came on the scene in August 1994. However, before describing what occurred thereafter, I pause to observe several matters in relation to the consent:

(a) From July 1984 to March 1991 Kembla was in breach of condition 9 of the consent, as well as condition 13.

(b) In addition, from 8 November 1987 to 31 March 1991 Kembla was in breach of conditions 4, 5 and 39.

(c) Because of the breaches of conditions 9 and 13, a question arose as to whether the consent had lapsed under s 99 of the Act. At that time (1985) the section provided that a development consent shall lapse unless it has been physically commenced within 2 years of the date upon which the consent became effective.

38 Metropolitan operated a coal mine at Helensburgh, approximately 11km north of the Maddens Plains dump. It needed to dispose of its coal washery refuse. Metropolitan became aware of the subject consent and became interested in acquiring it. If it was able to use the consent, with appropriate amendments made under s 102, it would not need to submit a fresh development application accompanied by an Environmental Impact Statement, a costly and lengthy process and subject to third party appeal rights by objectors. 39 The Manager of the Illawarra office of the Department thought that Metropolitan’s proposal could not be achieved as it was not substantially the same development as approved. This is the gateway into s 102. He thought that a fresh development application was necessary. Metropolitan obtained legal advice to the contrary. The Council then wrote directly to the head office of the Department supporting the s 102 proposal. The solicitors for Metropolitan also wrote to the Department disputing the opinion of the legal officer of the Department that the proposal would not be substantially the same development. 40 In April 1995 Metropolitan wrote to the Minister about the issue. The letter noted that it had agreed to lease the emplacement site from Kembla in order to dump its coal refuse from the Helensburgh mine. It foreshadowed a s 102 application to remove the drift conditions and permit road haulage from its mine to the dump. The letter referred to its legal advice that the proposed development was substantially the same as the original approval. 41 In a minute dated 23 August 1995 the Assistant Director of the Department recommended to the Minister that:

If the Minister were to accept the company’s legal advice, the section 102 application would need only address the changes arising from MCL’s use of the emplacement. A section 102 application would be the most expedient way for the company to obtain the approval.

42 The Minister acted on the recommendation and delegated his functions under s 102 to the Council, subject to a number of conditions.

Metropolitan’s s 102 application

43 The s 102 application made by Metropolitan was exhibited between 20 September and 11 October 1995 and the Council attempted to notify the original objectors. This was not an easy task since their objections had been made back in 1980 - 1982. Notwithstanding, a number of objections were received. These fell roughly into three classes. Those that objected to the new road haulage, those that objected to the recommencement of dumping (which had ceased in March 1991) and public authority submissions. Amongst the objections the question of whether the consent had lapsed, because the drift had not been constructed, was raised. 44 The Council called an informal public meeting on 24 October 1995 to discuss the application. It was attended by some councillors, council staff, representatives of Metropolitan and members of the public. The Council stated its view, adhered to in processing the application, that it was limited to considering the mine at Helensburgh and the road haulage from it to the emplacement. Since the emplacement area was not being modified, the Council could not legally consider any matters relating to it. 45 Several members of the public expressed views that the consent had lapsed since the dump had closed and the drift had not been constructed in accordance with condition 5. The Council decided to seek legal advice on whether the consent had lapsed because of the non-compliance with condition 5 (not 9 and 13). In the meantime, the Council informed the Environment Protection Authority that the concerns which it had expressed could not be legally considered on the application. 46 The Council received legal advice on 27 October 1995 that the breach of condition 5 had not resulted in the consent lapsing. The solicitors were never asked if the consent had lapsed for non-compliance with conditions 9 and 13. It may also be noted that Metropolitan had been advised by its solicitors in October 1994 that the failure to construct the drift did not mean that the consent ‘is no longer effective’. The advice specifically referred to s 99 and stated that ‘no question arises under s 99 in the Maddens Plains consent, as we understood it, because the consent was acted on within the relevant time’, viz. 2 years. Accordingly, the conditions were still able to be modified.

47    On 13 November 1995 the Manager (Planning) at the Council reported to the Council that it could only consider matters relating to the subject of the modification application and not any other issues, including the emplacement area itself. He recommended approval of the application, which would have a life of 25 to 30 years.

48 On 27 November 1995 the Council considered the application, on the narrow basis previously indicated, and resolved to approve subject to the Minister’s agreement under the delegation. The Minister approved and notified the Council which, in turn, advised Metropolitan on 11 December 1995. Conditions 4 and 5 were deleted and conditions 1, 2, 13 and 39 were amended. On 8 March 1996 the appellant filed an application in the Land and Environment Court challenging the modification decision and seeking declaratory and injunctive relief. Its amended application sought a declaration that the consent had lapsed. 49 Before turning to the issues which arise for consideration in the appeal, I feel constrained to say that the planning process revealed by the history recounted above is extraordinary. A mine specific and heavily conditioned consent is granted in 1983 after many years of discussions, including a Public Inquiry. The key conditions of the consent are the agreement to dedicate escarpment land for public open space before the commencement of operations and the construction of the drift within 4 years of the consent or it would come to an end. The consent was never amended, nor appealed, the drift was never constructed and refuse was carried by road in breach of the consent from 1987 until March 1991. The deed of dedication was never entered into. The Coalcliff mine closed in 1991 and the subject use ceased. In 1995 the Council modified the consent (with the agreement of the Minister) to permit another company to transport coal waste from a different mine (at Helensburgh) entirely by road haulage for a period of 25 to 30 years.

Issues on Appeal

50    A number of issues arise on the appeal which has been complicated by the decision of the court in North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 decided after Talbot J published his decision. The respondents seek the leave of the court to re-argue the correctness of this decision. 51 The issues, some of them raised in the alternative, are:

(a) Did the consent lapse on 8 November 1985 because it had not been commenced within the 2 years of it being granted?

(b) If it had lapsed, should the Land and Environment Court have made a declaration to that effect and did his Honour’s discretion miscarry in so refusing?

(c) Were the breaches of conditions 9 and 13 technical breaches?

(d) If the consent had lapsed, was there any person entitled to act upon the consent for the purposes of making an application under s 102?

(e) In considering the s 102 application, did the Council fail to have regard to the environmental consequences of the recommencement of dumping? This issue involves the application of Standley .

(f) Did his Honour err in refusing to admit 7 affidavits on the environmental effects of the recommencement of dumping tendered by the appellant?

The judgment

52 Talbot J delivered judgment on 17 July 1997, comprehensively finding against the appellant. It is reported in (1997) 95 LGERA 114. His Honour did, however, declare that condition 9 of the consent had been breached and made a number of orders requiring the 1st and 4th respondents to enter into an agreement to transfer the land the subject of condition 9. The application was otherwise dismissed. 53 On the question of lapse under s 99 of the Act, Talbot J noted that the respondents did not contest that no deed had been entered into under condition 9, nor that the operations manual required by condition 13 had not included the drift. 54 His Honour noted the appellant’s submission that conditions 9 and 13 were preconditions to the commencement of any work on the site and that the work done on the site and use prior to November 1985 was unlawful because of the failure to comply with the two conditions. Accordingly, applying Irongates Developments Pty Ltd v Richmond-Evans Environmental Society Inc. (1992) 81 LGERA 132 (Irongates) such work as was carried out on the site was prohibited by the consent and could not be counted towards commencement. Therefore, the development had not been commenced in the 2 years. 55    In approaching condition 9 his Honour observed that the purpose of the condition was to guarantee that the land would be transferred to the Minister for open space. The intention was that the commencement of the development ‘be deferred until the condition was performed’. His Honour then found, in accordance with Irongates, that the work carried out and the use of the land was not commencement of development within s 99(1)(a) of the Act. Talbot J said that, as a consequence, it was open to the court to find that the consent had lapsed after 2 years. 56 His Honour then turned to the issue of the discretion to withhold relief under s 124 of the Act. In considering factors relevant to the discretion, Talbot J said that the appellant only sought a declaration regarding the validity of the delegation (now irrelevant) and the s 102 modification of the consent and that the issue of lapse was only incidental to the validity question. This was incorrect since on 3 June 1997 his Honour had given leave to the appellant to amend the application before the court to seek declaration 4A - that the consent had lapsed. 57 His Honour found that the breach of condition 9 was a technical one, as was the breach of condition 13. In any event, applying a ‘purposive and practical’ approach to condition 13, it required two separate elements which were not interdependent. Because the drift was not constructed, the operations manual (sans the drift) which was submitted, satisfied condition 13. 58 Before refusing to grant any relief in relation to the lapse of the consent his Honour said:

The applicant has no direct interest in enforcing strict compliance with condition 9 and 13, except for the coincidental consequence it has for the attack on the decision to modify the consent ten years later. In those circumstances it is not appropriate for the Court to make any declaration as to the lapse or to determine the validity of the decision to modify the consent on that issue.

59 His Honour refused, in his discretion, to grant relief on the issue of the lapsing of the consent. Accordingly, his Honour held that the consent had not lapsed. Therefore, Metropolitan was a person entitled to act upon the consent and pursue the s 102 application. His Honour said that ‘Until the Court makes a declaration that the consent has lapsed it remains in force’. Kembla do not seek to argue the correctness of this proposition except as an exercise of discretion under s 124 (Transcript p 91, 22 July 1999). 60 After dealing with issues which do not arise for consideration on the appeal, Talbot J turned to the appellant’s argument that the Council had failed to consider the environmental consequences of recommencing dumping. His Honour accepted the submission of the Council that the s 90 matters relevant to be considered under s 102(3A) of the Act were those confined to the modification application. During his Honour’s reasoning on this issue, he found that the development the subject of the modification was substantially the same development as approved. Although this is not challenged in the Notice of Grounds of Appeal, I have difficulty in comprehending it. I would have thought that a consent permitting refuse from mine A to be transported to the emplacement through a drift to be constructed within 4 years, can hardly be seen to be substantially the same development as one permitting refuse to be emplaced from mine B, some kilometres to the north, wholly transported by road haulage and by a different route. The offsite road haulage is part and parcel of the development. However, this issue must be put to one side as it does not arise directly for decision. 61 During the hearing before Talbot J the appellant sought to read, on the issue of discretion, a number of affidavits which sought to establish adverse environmental impacts of the recommencement of dumping. These affidavits had been sworn by experts and by residents. His Honour did not permit the affidavits to be read although each of the respondents made a concession, which he accepted, that there would be adverse environmental consequences of the recommencement of the use.

The lapse issue

62    In my opinion, this issue is a relatively simple one. Condition 9 was required to be complied with ‘prior to the commencement of any work on the land in relation to the proposed development’. It was a precondition to work commencing on the site. It is common ground that the deed of agreement specified in the condition was not entered into prior to July 1984, when the 4th respondent commenced the use. Indeed, as Talbot J found, such a deed has never been entered into. Condition 13 was required to be complied with ‘prior to the commencement of construction of the proposed development’. It required the submission of an operations manual on all aspects of the emplacement area and the drift for the Council’s approval prior to commencement of the works. Again, it is common ground that the manual which was submitted did not include any aspects relating to the drift. No operations manual relating to the drift was prepared at any stage. 63    Conditions 9 and 13 need to be construed. In my opinion, condition 9 is plain and its ordinary meaning apparent. ‘Prior to the commencement of any work on the land’ must mean what it says. There is no room for any alternative construction since there is no ambiguity in the language. Similarly, the words of condition 13 are clear. With respect to his Honour, I do not see how the condition can be read distributively as two conditions, one for the emplacement and another for the drift, if and when it may be constructed. 64    The condition says ‘and the drift’, and those words cannot be read out or modified in the way his Honour suggests. There is no room for a ‘purposive or practical approach’ which would, in any event, defeat the expressed intention of the Minister when he granted the consent. Accordingly, it is beyond argument that Kembla was in breach of condition 13, as well as condition 9. It is true that in Wollongong City Council v AIS (1988) 67 LGRA 51 Holland J said that an over-technical approach to the meaning and language used in conditions is not, as a general rule, called for. However, the words used in the subject conditions are ordinary English words and carry a plain and unambiguous meaning. 65 In Irongates Handley JA, at 135 - 136, said:

In my opinion the work found to be engineering work which was relied upon by the appellant to save its consent from lapse was prohibited and illegal and the persons offending against that prohibition were guilty of offences against the Act for the purposes of s 125 (1).

and
In my opinion the work in question was not work “relating to that development” for the purposes of s 99(2) (a) because it was prohibited by the consent, and therefore was not “the subject of that consent” within s 99(1) (a).

66    Handley JA said that this conclusion flowed from the language of s 99 which was ‘quite unambiguous’. Mahoney JA and Rogers AJA agreed. Although this case was decided in 1992, it is my respectful opinion that the interpretation of the provision, included in the statute in 1979, was obvious. That is, that work done unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s 99. Applying Irongates means that none of the work done on the site from July 1984 up to November 1985 can be taken into account. That work was performed in breach of the consent because it occurred before either condition 9 or 13 were complied with. Both conditions were required to be complied with prior to the commencement of any works on the land. As I have said, they were preconditions to any work taking place on the site. 67    It must follow that the consent lapsed on 9 November 1985 pursuant to s 99 of the Act because it had not been physically commenced within 2 years. There is nothing harsh in this conclusion. The developer could have appealed any condition in the first 12 months of the consent. It could have sought to modify the conditions in question before the 2 years had elapsed. It could have applied for an extension of time. It pursued none of these remedies.

Discretion

68    Having found that the consent lapsed, the court has to determine whether to grant the declaratory relief sought. Talbot J indicated that he would not, in the exercise of his discretion, grant such relief. 69    The matters taken into account by his Honour in the exercise of the discretion were:

(i) The attempts by Kembla to enter into a deed with the Minister.

(ii) Any obstructive action by the Minister in regard to the contents of the deed.

(iii) The failure of the Minister or Council to take any action to enforce the law.
(iv) The respondents’ concession of the adverse environmental consequences on recommencement of dumping.

(v) That the failure to enter into the deed when required did not immediately give rise to any adverse environmental consequences.

(vi) The history of the site from 1976 to 1991 and the knowledge of the breach of condition 9 without action being taken by the Minister.

(vii) That the breaches of conditions 9 and 13 were technical breaches only.

(viii) That the appellant did not have a direct interest in enforcing compliance with the Act.

70    On behalf of the appellant, Mr Larkin of counsel submits that the exercise of the discretion miscarried. In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82 Kirby P said:

Conformably with established principles this Court would not interfere in his Honour’s exercise of discretion unless it were shown that the discretion miscarried in some way. Especially because of the establishment of the Land and Environment Court as a specialist court, with responsibility to ensure the consistent application of the Act and other environmental laws, it would be erroneous for this Court simply to substitute its discretion because it had reached a different view about how that discretion should be exercised.

71    See also the discussion by Mahoney JA in Mulcahy v Blue Mountains City Council (1993) 81 LGERA 302 at 309 - 310. 72 On a consideration of the evidence before the Land and Environment Court I am convinced that his Honour’s exercise of discretion miscarried. Firstly, let me deal seriatim with his Honour’s reasons for refusing to exercise the discretion and withhold relief. 73    (i) Kembla never attempted to enter into a deed with the Minister which would fulfil the requirements of condition 9. On the contrary, the deed which it submitted sought to subvert the clear intent of the condition. It was rightly rejected as unacceptable by the Minister’s representatives. To make matters worse Kembla then submitted a deed of licence (instead of a land dedication) with provision for a walking path to be constructed and maintained at the Minister’s expense. This was rightly rejected as defeating the plain purpose of the condition. Indeed, Kembla’s draft required condition 9 to be deleted from the consent. It is apparent that Kembla never made any bona fide or genuine attempt to enter into a deed of dedication which would have satisfied the condition. Moreover, if it had done what was required to be done by the condition, the land referred to in the condition would most likely have been brought into public ownership after March 1991 when the Coalcliff Colliery closed. 74    (ii) There was plainly no evidence of any ‘obstructive action’ by the Minister over the contents of the deed. To the contrary, the obstructive conduct was all on the part of Kembla.
75    (iii) It is correct to observe that the Minister (and the Council) took no steps to enforce the law and this is a discretionary factor to be taken into account. 76    (iv) Although it is not clear how these concessions were taken into account, they are discretionary factors to be weighed because if the discretion is withheld, the dumping of coal waste will recommence after having ceased in 1991. 77    (v) For the same reason, the potential adverse environmental effects of the discretion being withheld are relevant factors and not to be ignored in the equation. It follows that his Honour should not had excluded the reading of the seven affidavits tendered by the appellant. 78    (vi) The history of dumping on the site and the knowledge of breach without action are discretionary factors to be considered. 79    (vii) The breaches of conditions 9 and 13 are far from technical. From the time of the Public Inquiry by Mr Coffey in 1973 the visual prominence of the Illawarra Escarpment was a highly important issue to the Minister and to his Department. The Department had made it clear that it was bent on acquiring escarpment land in order to protect it. The intent of condition 9 was to ensure that many hundreds of hectares of visually prominent land on the escarpment would be transferred into public ownership as open space. The breaches meant that this did not occur after the mine at Coalcliff ceased operations in March 1991. This defeated the clear intention of the dedication condition. In my opinion, the breach was extremely serious and made more serious by the deliberate attempts by Kembla to avoid its obligation under the condition, which condition it was prepared to accept when the consent was granted.

The breach of condition 13 was also far from technical. It came about because Kembla never genuinely accepted the drift condition. The evidence leads irresistibly to the conclusion that the company never had any real intention of constructing the drift. It accepted the proposed condition in order to obtain the consent but thereafter prevaricated about complying with condition 4, which required its construction by November 1987. While it did its best to convince the decision-makers to relieve it of the requirement (without success) it never appealed any condition relating to the drift, nor pursued any s 102 application to decision or appeal. It made one s 102 application and withdrew it in a matter of days. Then it made a further application in 1987 but never pursued it, no doubt because it had already decided to close the mine by the end of 1990. The failure to construct the drift meant that coal refuse continued to be carried by road haulage from November 1987 to March 1991, with the accompanying environmental detriment, and in deliberate breach of the consent. The failure to include the drift in the operations manual under condition 13 was part and parcel of the company’s determination to get its own way.

In Irongates Pty Ltd v Richmond River Shire Council (unreported, Land and Environment Court, 6 March 1997) I said:

Also relevant to the discretion is the ‘orderly enforcement’ of a ‘public duty’ to comply with the terms of the development consent. ( Sedevcic at 339 - 340). The developer’s predecessor obtained a consent on a certain basis which included stringent conditions designed to produce an environmentally sensitive subdivision. The present developer then proceeded to ignore many of those conditions and lead evidence at the hearing that the conditions were naive and not achievable. In other words, it proceeded to develop a traditionally engineered subdivision by wholesale clear felling and vegetation removal in disregard of the consent that had been granted to Iron Gates Developments Pty Ltd.

This case bears some remarkable similarities. Owners of consents have a public duty to comply with the terms of their development consents. To do otherwise would thwart the object of the Act to encourage the promotion of orderly development of land, s 5. Kembla obtained the consent on a certain basis and then proceeded to ignore or fudge on a number of quite crucial conditions, claiming that they were unreasonable or unviable. But the company never tested its claims by challenging the conditions or pursuing a modification application with the decision-maker or the court. In effect, it used the system to its own ends to avoid compliance with centrally relevant conditions relating to the land dedication and the drift.

80    (viii) Talbot J took account of the appellant’s lack of direct interest in enforcing compliance with the Act. It is difficult to see that this was correct, let alone relevant. Section 123 of the Act accords ‘open standing’ to any person to approach the court to remedy or restrain any actual or apprehended breach of the Act ‘whether or not any right of that person has been or may be infringed by or as a consequence of that breach’. It has been in the statute for 20 years. The appellant did not have to establish any interest in the subject matter it sought to litigate. Its motive can be merely to advance the objects and policy of the Act, but it need have no direct or indirect interest in the subject matter of enforcing compliance, see Street CJ in F. Hannan Pty Ltd v Elcom (No 3) (1985) 66 LGRA 306 at 312 - 313. 81 In addition, in exercising the discretion, his Honour should have taken into account that he was, in effect, sanctioning another company (Metropolitan) reviving a consent, which had lain dormant from March 1991, in order to transport coal refuse from its Helensburgh mine to the emplacement for the next 25 to 30 years wholly by road haulage. 82 I am left in no doubt that the discretion miscarried. With respect to his Honour, he made errors of fact and principle and failed to take account of relevant factors. Although a judgment is not to be reviewed merely because an appellate court would have given different weight to a factor (House v The King (1936) 55 CLR 499), some factors may have particular significance or warrant particular weight. If the trial judge fails to give effect to this significance or weight, the appellate court is required to intervene, Lovell v Lovell (1950) 81 CLR 513 at 519. Since the consent lapsed in 1985 and all of the relevant evidence is before the court, it is appropriate for this court to re-exercise the discretion. This can be achieved without the need to consider the excluded affidavits. For the reasons contained in the earlier discussion on discretion, I am firmly of the view that the balancing of discretionary considerations heavily favours the making of a declaration that the consent lapsed on or about 8 November 1985 pursuant to s 99 of the Act. That being so, there was no subsisting consent which could be modified under s 102. The consent terminated on 9 November 1985 because it had not been commenced in the 2 years following its grant. There was no consent in existence in 1985 which could lawfully be the subject of a modification application under s 102 and there was no person entitled to act upon the consent because it had ceased to exist. Neither Kembla nor Metropolitan were so entitled. It must follow that the purported s 102 approval by the Council and the Minister is invalid and of no effect.

Further arguments

83    It is correct to say that a consent or an environmental planning instrument remains valid until a court declares it to be invalid (Smith v East Elloe Rural District Council [1956] AC 736 at 769 - 770 and see Cole JA in The Minister v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88). However, a distinction needs to be made between the validity of a decision to grant a consent and the statutory lapsing of a validly granted consent which has not been commenced within the time required by the statute. Here there is no allegation, nor has there ever been, that the consent was invalidly granted. The allegation is simply that it has lapsed by reason of non-compliance with the statute in terms of its physical commencement. Reference, by way of analogy, has been made to s 104A of the Act. This is of no assistance since, quite obviously, it cannot be relevant to the statutory lapsing of consents. This case is simply not about the validity of a consent, rather it is about the statutory lapsing of a validly issued consent. 84 That s 102 is a beneficial and facultative power is also relied on by the respondents to assist where it is claimed that a person is having difficulty in complying with a condition or disputes the effect of a condition. I do not doubt that this is so and breaches of a condition do not preclude modification, see for example Tynan v Meharg (1998) 101 LGERA 255 at 258. However, this is not the situation here. The breaches of conditions 9 and 13 caused the consent to lapse. The consent lapsed because it had not been physically commenced within 2 years. The work that had been performed, purportedly under the consent, could not be counted towards commencement because it was unlawful. 85 On behalf of the Minister, Mr Leeming of counsel submits that even if the consent had lapsed in 1985, since no court had declared that it had so lapsed, an applicant under s 102 is entitled to rely on the presumption of regularity. Accordingly, Metropolitan was a person ‘entitled’ to act on the consent under the section. The presumption, as Mr Leeming accepts, has to be that the consent had not lapsed. This is somewhat different from the presumption of the validity of the grant of consent, although Mr Leeming submits that this does not matter and the same principles should apply. 86 Mr Leeming conceded that the argument was not put below on behalf of the Minister. More importantly, counsel for Metropolitan, Mr Robson, accepts that the submission was not put to Talbot J. The issue would require evidence because, for example, if the applicant had notice that the consent had lapsed, it is difficult to see that it could rely on the presumption of regularity, assuming it to be available in these circumstances. 87 Although there was some evidence before the court, the question of knowledge was never really explored. In these circumstances, I do not see that we are required to permit it to be argued on the appeal. Such evidence as was adduced indicates a degree of knowledge in Metropolitan. For example, in October 1994 its solicitors advised on whether the consent had lapsed, see the earlier discussion of the facts. While the s 102 was before the Council, representatives of Metropolitan attended a public meeting where several people claimed that the consent had lapsed for various reasons. These pieces of evidence may be enough to displace the presumption should it be available.

Rearguing Standley

88    Kembla, supported by all of the other respondents, seeks the leave of the court to reargue the correctness of North Sydney Council v Michael Standley & Associates Pty Ltd. The court should not permit the correctness of the case to be reargued unless it believes the decision to be clearly or plainly wrong or that considerations of justice require the court to decline to apply the decision, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100. The reasons for the rule of comity are sound, see Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 584. 89 We are not convinced that Standley is clearly or plainly wrong or that the interests of justice require the court to decline to apply it. Moreover, we think that Mr Hemmings QC, indeed all of the respondents, appear to interpret Standley in too broad a fashion. The majority judgments in Standley do not stand for the proposition that on a s 102 application the whole of the relevant s 90 matters must be considered afresh. Standley does not require ‘a complete review of s 90 of the original development application’ upon a s 102 modification (written submissions of the Council). Standley does not render the assessment of a modification application indistinguishable from the assessment of a development application. Moreover, s 102 has not been rendered otiose by the decision. It may also be noted that Standley has been followed by this court in Transport Action Group Against Motorways Inc. v RTA [1999] NSWCA 196. 90 Applying Standley, indeed even applying my narrower dissenting test in that case, must lead to the conclusion that the Council was bound to consider the environmental consequences of the recommencement of use of the emplacement. Failing to do so leads to invalidity of the approval granted to the modification on the assumption that, contrary to my earlier conclusion, it was lawfully open to the Council to consider the application. The discretionary factors are even more heavily weighted in favour of granting relief than in the lapsing situation because the purported exercise of the power by the Council under s 102 clearly miscarried and in a fundamental way. The court should declare that the purported modification of the consent under s 102 of the Act is invalid.

Orders

1. Appeal upheld with costs.

2. Set aside orders 5 - 8 made by Talbot J.

3. In addition to orders 1 - 4 made by Talbot J, make the following orders set out in paras 4 - 7 hereunder.

4. Declare that the development consent granted by the first respondent (the Minister) on or about 8 November 1983 has lapsed pursuant to s 99 of the Environmental Planning and Assessment Act 1979.

5. Declare that the fourth respondent (Kembla) has breached conditions 4, 5, 13 and 39 of the development consent.

6. Declare that the modification of the development consent by the second respondent (the Council) on or about 11 December 1995 is a nullity.

7. Order that the respondents pay the appellant’s costs of the proceedings in the Land and Environment Court.

91    HODGSON, CJ in Eq.: The facts and circumstances giving rise to this appeal, and the issues for determination, are set out of the judgment of Stein, JA. I agree with orders proposed by Stein, JA, and with his reasons. However, on some issues I would add some further reasons of my own.

THE LAPSE ISSUE

92    Condition 9 of the relevant consent required certain things to be done "before the commencement of any work on the land"; and Condition 13 required certain things to be done "prior to the commencement of construction of the proposed development". 93    Mr. Hemmings QC for Kembla submitted that, while Kembla may have been in breach of the conditions in failing to do things required, it was not in breach of the conditions in commencing work and/or construction. 94    In my opinion, if there is a requirement that one do X before one does Y, this normally means one is required not to do Y until one has done X; so that if one in fact does Y before doing X, there is a breach of the requirement which can be characterised both as "failing to do X before one did Y" or as "doing Y in circumstances where one had not previously done X"; and there is a breach of the requirement under the latter description just as much as the former. 95    There may however be some cases in which a requirement to do X before one does Y is not fairly interpreted as a requirement not to do Y until one has done X: for example, if it is plain between the giver and receiver of the requirement that if, for whatever reason, the receiver does not do X before the expected time comes to do Y, the receiver should nevertheless go ahead and do Y. As one instance of this, if a parent says to a child "tidy your room before you go to school", both may understand very well that if the room is not tidied before the proper time for going to school, the child should nevertheless go to school at the proper time. In such a case, the failure to tidy the room would be a breach of the requirement, whereas going to school at the proper time would not be, even if the room had not then been tidied. If the proper time for going to school was 8am, the instruction would be interpreted as a requirement to tidy the room before 8am; and not as a requirement to refrain from going to school at 8am if the room was not then tidy. By contrast, an instruction by a parent to a child to "finish your homework before you watch television" would most likely be understood as meaning "do not watch any television until you have finished your homework". 96    In the case of both Condition 9 and Condition 13, I think it is clear as a matter of construction that Kembla was required to refrain from commencement until it had done what those conditions had required. There is no basis in the consent or in the circumstances for any suggestion of a common understanding that commencement was to go ahead at some expected time, even if these things had not been done by them. On the contrary, having regard to the significance of the requirements, and the difficulties that could arise (and in the case of Condition 9 at least, did arise) if they were not attended to before commencement, the terms of the consent and the circumstances in fact confirm that Kembla was required not to commence before complying with the requirements of Condition 9 and Condition 13. 97    Accordingly, as found by Stein, JA, all work done by Kembla was unlawful, and the Irongates principle applies.

DISCRETION

98    Stein, JA has given reasons for deciding that Talbot, J's discretion on whether to declare lapse had miscarried. I agree with those reasons, but would add the following. In my opinion, the discretion also miscarried because it was exercised prematurely in the reasoning process. 99    It is clear in my opinion, and the contrary was not argued, that Talbot, J. was in error in saying that there was no lapse of the consent until this was declared by the Court. Given that the consent had, as a matter of fact and law, lapsed, it was in my opinion incumbent on Talbot, J. first to work out the relevant legal consequences of that lapse, and only then to consider whether or not relief should be granted or withheld as a matter of discretion. The relevant legal consequences require consideration of the effect of ss.99(1) and 102(1), (3A) and (4) of the Environmental Planning & Assessment Act, which were at relevant times (namely 1983-5 and 1995 respectively) in the following terms:

99(1) A consent granted under this Division to a development application shall lapse-
(a) unless the development the subject of that consent is commenced -

(i) except as provided in subparagraph (ii) - within 2 years (or, if the consent authority so approves in accordance with subsection (3), 3 years) of the date upon which that consent becomes effective in accordance with section 93 (in this section referred to as "the prescribed date"); or

(ii) where within one year of the prescribed date a provision of an environmental planning instrument is made having the effect of prohibiting the development - within one year of the date upon which that provision comes into force; and

(b) where a notice referred to in subsection (5) is in force under subsection (6) - unless the development the subject of that consent is completed within the time specified in that notice.

102(1) Upon the application being made in the prescribed form by the applicant or any other person entitled to act upon the consent, a consent authority which has granted development consent under this Division may modify the consent where:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development;
(b) it is satisfied that no prejudice will be caused to any person who objected to the development application the subject of that consent; and
(c) it has consulted with the relevant Minister or public authority in respect of a condition referred to in section 82(1) and that Minister or authority has not, within 21 days after being consulted, objected to the modification of that consent.
...
(3A) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 90 as are of relevance to the development the subject of the application.
(4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified.

100 In my opinion, one legal consequence of lapse was that the consent could not be the subject of an application for modification under s.102. That opinion does not depend upon the words "entitled to act upon the consent" in s.102, although that wording does confirm what otherwise appears from the scheme of the legislation, namely that a lapsed consent cannot be revived by an application under s.102. 101 The foregoing is subject to the argument based on the presumption of regularity which is applicable in various areas of administrative law. As pointed out by Stein, JA, that argument was not raised below, and had it been raised below, there could have been more evidence directed to the question of whether the applicant under s.102 could rely on any such presumption. In my opinion, that argument should not be permitted to be raised on this appeal. 102 Accordingly, the discretion to be exercised was not whether or not to declare that lapse had occurred, but rather whether or not to declare that the application under s.102 was not permitted by the Act and was incapable of being granted, and whether or not to grant relief consequential upon that declaration. For reasons given by Stein, JA, in my opinion the Court of Appeal should exercise that discretion in favour of granting the relief.

RE-ARGUING STANDLEY

103    It is not necessary, having regard to the above, to come to a decision whether or not to permit Standley to be re-argued. However, since the matter was raised, and since I have come to a firm view on it, I think it appropriate to express that view. 104 Hemmings, QC argued that "development" where it appears in s.102(3A) must mean incremental development, that is, so much of the total development to be permitted by the modified consent as was not included in the development permitted by the original consent. However, he conceded that, should a developer wish to delete part of a development permitted by a consent, it would be necessary for the developer to make a s.102 application; and that in such a case, there would be no incremental development, so that "development" in s.102(3A) would have to refer to the whole development as modified. In my opinion, it would be unreasonable to interpret "development" in s.102(3A) so that it has such a completely different application in different circumstances, as Mr. Hemmings' submission would require. In my opinion, this is a further consideration pointing to the correctness of Standley. 105    As pointed out by Stein, JA, Standley does not require full de novo consideration of all aspects of the original application. In many cases, it would be proper for the consent authority to consider whether or not there appeared to be any good reason to re-open the matters considered in the original grant of consent, and if not, simply to adopt its earlier consideration and decisions on those matters, and to focus on issues relating to the modification. 106    For those reasons, in addition to the reasons adopted by Stein, JA, I agree with the orders he proposes.

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