Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2)

[2018] NSWLEC 153

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153

Hearing dates:

13-17, 20-24, 27-28 February 2017; 1- 3, 24, 28, 30-31 March 2017; and 12-13, 20 April 2017

Date of orders:

12 October 2018

Decision date:

12 October 2018

Jurisdiction:

Class 4

Before:

Molesworth AJ

Decision:

See orders at [895] of judgment

Catchwords:

CIVIL ENFORCEMENT – carrying out development contrary to development consent – construction of development consent – whether development application and environmental impact statement incorporated into the development consent – held that there was uncertainty or ambiguity on the face of the consent and that therefore there was incorporation by necessary implication

 

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether conditions validly imposed on development of quarry – whether quarrying restricted to confined area – whether quarrying on lot 6 permissible under development consent – development consent did not contemplate quarrying on lot 6, but merely ancillary activities – regard had to plan accompanying environmental impact statement

 

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether approval granted at genus level “extractive industry”, or at species level “quarry for railway ballast” – approval was for railway ballast quarry – appropriate to characterise at species level because of external impact – elements of a railway ballast quarry as distinct from a generic quarry are: 1. production of crushed rock of a particular range of grades for railway usage; 2. utilisation of railway rolling stock for transporting the rock; 3. usually loaded from a railway siding purpose-built within or adjoining the ballast quarry; 4. usually a railway freight car carries the ballast to its end location; and 5. contained amenity and environmental impact – operations have transformed and are no longer a railway ballast quarry – connectivity between purpose, product, mode of operation and consequential external environmental impact distinguishes a railway ballast quarry from a more generic quarry – transformation from railway ballast quarry to general quarry did not have planning approval

 

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether conditions validly imposed on development of quarry – condition-less approval not granted – conditions imposed following the approval of the development applicant, a government authority, to those conditions: Environmental Planning and Assessment Act 1979 s 91A

 

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – condition prohibiting impact on amenity of neighbourhood – meaning of neighbourhood – meaning of amenity – impacts included truck traffic, dust, and noise – operations unacceptably interfered with amenity of neighbourhood – condition 1 of consent breached – condition limiting proportion of product to be transported by road – product from land dealt with by approval does not cease to be such product by being transported via, or processed on, another parcel of land close by and part of the operation – greatly more than 30% of product transported by road – condition 6 of consent breached

 

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether condition requiring that all environmental safeguards proposed for the development are enforced – explanation of environmental safeguards proposed found in incorporated environmental impact statement – numerous environmental safeguards not complied with – condition 7 of consent breached

 

CIVIL ENFORCEMENT – carrying out development contrary to consent – whether processing being conducted unlawfully on lot 5 – whether such processing an ancillary use to the dominant purpose of a railway ballast quarry – ancillary use established - dominant use must be lawful for ancillary use to be lawful – dominant use is no longer conducted lawfully – processing is being conducted unlawfully on lot 5

 

EXISTING USE – civil enforcement – whether development carried out without consent on Eastern Lands– whether there were continuing or existing use rights – characterisation of existing use – whether characterisation at genus level “extractive industry”, or at species level “railway ballast quarry” more appropriate – appropriate to characterise at species level “railway ballast quarry” due to impact on neighbourhood – impact on neighbourhood a relevant factor in characterising a land use for a planning law purpose – railway ballast quarry impact on neighbourhood significantly less than generic quarry – factors going to characterisation include: 1. location, on a railway spur line; 2. primary product, railway ballast; 3. primary mode of operation, utilising direct loading to railway rolling stock from a siding; 4. primary mode of transport, via railway rolling stock, rather than road transport; and 5. the consequential contained environmental impact – in a railway ballast quarry, the current use on the Eastern Lands, processing of stone, would have been ancillary to the dominant use being the extraction of stone – extraction of stone ceased in 1993 – ancillary use dependant on lawful dominant use – ancillary processing use can no longer be considered part of the protected “existing use” – processing of stone is an industrial land use

 

EXISTING USE – whether continuing rehabilitation on site of quarry maintains existing use rights of quarrying – rehabilitation is an ancillary use – residual rehabilitation obligations do not support the recommencement of a use now requiring development consent

 

CIVIL ENFORCEMENT – whether use on Eastern Lands ancillary to that on Western Lands – whether, if use is ancillary, such use is lawful – sufficient operational nexus and reasonable proximity between Eastern and Western Lands and operations thereon – ancillary use established – dominant use must be lawful for ancillary use to be lawful – dominant use is no longer conducted lawfully – processing is being conducted unlawfully on Eastern Lands

 

CIVIL ENFORCEMENT – point in time from which existing use is to be characterised – characterisation assessed from date at which provision protecting existing use came into effect

 

EXISTING USE – whether development has enlarged, expanded or intensified per s 109 Environmental Planning and Assessment Act 1979 – development has impermissibly transformed from a railway ballast quarry to an industrial operation processing quarry products – such development requires development consent – no development consent in place

 

CIVIL PROCEDURE — parties — whether First Respondent properly a party to the proceedings – First Respondent subleases the land to the Second Respondent which operates the quarry – First and Second Respondents share a close operational nexus in the operation of the impugned development – First Respondent is a proper party to the proceedings

 

JUDICIAL REVIEW- whether environmental protection licence validly varied – whether elements of s 58(6) of the Protection of the Environment Operations Act jurisdictional facts – held to be jurisdictional facts – held that EPA was obliged prior to the licence variation, to invite and consider public submissions – EPA did not so invite and consider public submissions – therefore no jurisdiction to make the variation – variation invalid

 

JUDICIAL REVIEW – whether activity the subject of the environmental protection licence variation had the requisite development consent – activity held to have been conducted unlawfully – variation granted in contravention of s 50(2) of the Protection of the Environment Operations Act

  ENVIRONMENT AND PLANNING – Land and Environment Court – jurisdiction and powers – discretionary powers – there is utility in making the declarations sought – State Significant Development application on foot – declarations will assist in the determining of the State Significant Development application – delay by Applicant explicable – Applicant public authority – appropriate to make certain orders sought – orders restraining the unlawful conduct to be stayed for three months – impact on community of immediate cessation of activities

Legislation Cited:

City of Brisbane Town Planning Act 1964-1976 s 3
Civil Procedure Act 2005 s 56
Clean Air Act 1961
Dungog Local Environmental Plan 1990 cl 6
Dungog Local Environmental Plan 2006
Dungog Local Environmental Plan 2014
Dungog Local Environmental Plan No 1
Environmental Planning and Assessment Act 1979 Div 1 Pt 4, Div 3 Pt 6 Div 10 Pt 4, ss 4, 76A (4.2), 77, 84, 85, 91, 91A, 92, 93, 101, 102, 104A, 106, 107, 108, 109 (4.68), 109B, 122, 123, 124 (9.46)
Environmental Planning and Assessment Amendment Act 2017
Environmental Planning and Assessment Model Provisions 1980 cl 35, cl 1 of Sch 1
Environmental Planning and Assessment Regulation 1980 cll 33, 41B, 44, cl 7 of Sch 4
Evidence Act 1995 s 144
Interim Development Order No 1 – Shire of Dungog
Interpretation Act 1987 ss 32, 35
Local Government Act 1919 s 342U
Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Schs 1 and 3, cl 2
National Parks and Wildlife Act 1974
Native Vegetation Act 2003 s 38
Ordinance No 105 Town and Country Planning (General Interim Development) Pt XIIA, cl 4
Protection of the Environment Administration Act 1991 ss, 4, 5, 6, 45
Protection of the Environment Operations Act 1997 Ch 3, ss 43, 45, 50, 58, 79, 80, 83, 101
Public Works Act 1912
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 11
Transport Administration Act 1988

Cases Cited:

ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391
Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273
Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103
Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3
Archibald v Byron Shire Council (2003) 129 LGERA 311; [2003] NSWCA 292
Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681
Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317
Attorney General v PYA Quarries Ltd (1957) 2 QB 169
Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56
Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139
Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38
Bankstown City Council v Ramahi [2015] NSWLEC 74
Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200
Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275
Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 1 NSWLR 479
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171
Bentley v Benbow (1957) 97 CLR 444; [1957] HCA 70
Blacktown City Council v The Penatrators Pty Ltd (No 3) [2014] NSWLEC 4
Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd [1990] NSWCA 25
Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198
Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147
Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120
Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172
Burwood City Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404
BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164
Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50
Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175; [2000] NSWLEC 89
CB Investments v Colo Shire Council (1980) 41 LGRA 270
Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152
Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100
Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114
Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190
City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5
Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243; [1999] NSWCA 317
Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39
Coordinated Construction Company Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229
Council of the City of Sydney v Mae [2009] NSWLEC 84
Council of the City of Sydney v Pink Star Entertainment Pty Ltd (2008) 160 LGERA 251; [2008] NSWLEC 176
Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42
Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194
Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; [2006] NSWCA 339
Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48
Director-General, Department of Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118
Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34; [2001] NSWLEC 55
Donoghue v Stevenson [1932] AC 562
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (2016) 220 LGERA 43; [2016] NSWLEC 164
Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49
Egan v Hawkesbury City Council (1993) 79 LGERA 321
Elkateb v Lawindi (1997) 42 NSWLR 396
Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157
Formosa v Secretary of the Department of Social Security (1988) 46 FCR 117; [1988] FCA 291
Friends of Tumblebee Incorporated v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16
GPT RE Limited v Belmorgan Property Development Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256
Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359
Graham John de Martino Pty Ltd v Parramatta City Council (1964) 10 LGRA 104
Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720
Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1; [2007] NSWLEC 681
Greengate Consulting (NSW) Pty Ltd trading as Greengate Property Group v Ashfield Municipal Council (2008) 162 LGERA 247; [2008] NSWLEC 253
Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655
Helman v Byron Shire Council (1995) 87 LGERA 349
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59
House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44
Hudak v Waverley Municipal Council (1990) 18 NSWLR 709
IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304
John Bruce & Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67
Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] HCA 20
Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398
Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23
King v Lewis (1991) 74 LGRA 362
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114
Leichhardt Council v Geitonia Pty Ltd (No 6) (2015) 209 LGERA 120; [2015] NSWLEC 51
Liverpool City Council v Main Homes Pty Ltd [2011] NSWLEC 174
Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347; [2002] NSWLEC 45
Lucas v Mooney (1909) 9 CLR 231; [1909] HCA 58
Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455
Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127
Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62
Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98
Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154
Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8
Mollica v Shire of Bulla (1992) 9 AATR 157
Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26
Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322; [2008] NSWSC 876
No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136
Norman v Gosford Shire Council (1975) 132 CLR 83; [1975] HCA 15
North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20
North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169
North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50
Nymboida Shire Council v Skar Industries Pty Ltd (1998) 99 LGERA 178; [1998] NSWLEC 166
Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189; [2004] SASC 373
OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen (2006) 150 LGERA 154; [2006] WASCA 270
Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Penrith City Council v Konemann (2017) 225 LGERA 16; [2017] NSWLEC 79
Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council 145 CLR 485; [1980] HCA 1
Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402
Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; [1988] NSWLEC 55
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262
QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442
Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services (No 3) [2012] NSWLEC 57
R v East Sussex County Council [2003] 1 WLR 348
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Roden v Bandora Holdings Pty Ltd [2016] NSWCA 220
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305
Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277
Saffiotti v Kiama Municipal Council (2017) 225 LGERA 136; [2017] NSWLEC 65
Sansom v Port Stephens Council (2006) 147 LGERA 203; [2006] NSWLEC 475
Scurr v Brisbane City Council (1973) 133 CLR 242; [1973] HCA 39
Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740
Shire of Perth v O’Keefe (1964) 110 CLR 529; [1964] HCA 37
Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd (2009) 3 ARLR 380; [2009] NSWLEC 197
Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27
Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86
Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26
Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562
Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
Temelkovski v Wright (2016) 218 LGERA 381; [2016] NSWLEC 112
Terranora Group Management Pty Ltd v Director-General Office of Environment and Heritage (2013) 200 LGERA 1; [2013] NSWLEC 198
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Tipfast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; [2002] NSWLEC 85
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580
Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19
Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115; [2003] NSWCA 270
Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Wells v Minister of Housing and Local Government [1967] 1 WLR 1000
Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245
Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 156 LGERA 283; [2007] HCA 50
Widgee Shire Council v Bonney (1907) 4 CLR 977; [1907] HCA 11
Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284
Williams v NSW Minister for Planning (No 4) [2010] NSWLEC 222
Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17
Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123
Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156

Texts Cited:

John Whitehouse, Development and Planning Law in New South Wales, (2012, CCH)
Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis Butterworths)
Macquarie Dictionary (3rd ed 1997)
Macquarie Dictionary (Revised 3rd ed, 2001)
Shorter Oxford English Dictionary (3rd ed, 1980)

Category:

Principal judgment

Parties:

Dungog Shire Council (Applicant)
Hunter Industrial Rental Equipment Pty Ltd (First Respondent)
Buttai Gravel Pty Ltd (Second Respondent)
Environment Protection Authority (Third Respondent)

Representation:

COUNSEL:
Mr T G Howard SC with Ms C Novak (Applicant)
Mr T F Robertson SC with Mr J Lazarus and Ms J Walker (First and Second Respondents)
Submitting Appearance (Third Respondent)

  SOLICITORS:
Coutts Mallik Rees (Applicant)
Nexus Lawyers (First and Second Respondents)
Submitting Appearance (Third Respondent)

File Number(s):

2016/149935

TABLE OF CONTENTS

A COUNCIL CHALLENGES THE LEGALITY OF A QUARRY

Background

Eastern Lands – relevant history

Western Lands – relevant history

The First and Second Respondents

The Third Respondent – Environment Protection Authority

Essence of the case, shortly stated

The case in relation to the Western Lands

The case in relation to the Eastern Lands

Lot 42 DP 815628 – Land not the subject of the proceedings

The 11 primary issues to be addressed

The magnitude of the proceedings

THE OUTCOME OF THE PROCEEDINGS

Western Lands – major conclusions

Eastern lands – overall conclusion

The context of the Court findings

THE EVIDENCE

The annexures

The documentary evidence

The layperson evidence

The expert evidence

THE STATUTORY FRAMEWORK

The regulation of development

The power to determine DA in 1991

The regulation of existing uses

Powers of the Court to make orders

Environment protection licences

ISSUE 1: INCORPORATION

The Applicant Council’s claim of incorporation

Express incorporation of the 1990 DA

Incorporation by necessary implication

The Company Respondents’ rebuttal of the claim of incorporation

CONSIDERATION AND DETERMINATION – ISSUE 1 – INCORPORATION

There was uncertainty on the face of the 1991 Consent

A development consent must be construed in accordance with its enduring functions

Incorporation of certain documents is, by necessary implication, required to resolve ambiguity

Was there also express incorporation of extrinsic materials?

Inconvenience of incorporation

The purpose of an EIS in the development consent process

An EIS does not impose conditions of consent

Only material portions of the 1990 EIS are taken to be incorporated

ISSUE 2: EXTRACTION ON LOT 6 AND EXCESSIVE EXTRACTION ON LOT 5

The Applicant Council’s claim that the extraction operations on Lot 6 (and on part of Lot 5) are unlawful

The Company Respondents’ rebuttal

CONSIDERATION AND DETERMINATION – ISSUE 2

The relief sought

The outcome

What were the implications of Lots 5 and 6 both being referred to in the 1990 DA and 1991 Consent?

Plan 2

Quarrying was limited to 5 ha on Lot 5 and was not permitted on Lot 6

ISSUE 3: QUARRYING FOR RAILWAY BALLAST

The Applicant Council’s claim that the Company Respondents are carrying out an unapproved extractive industry development on Lots 5 and 6

The Company Respondents’ rebuttal

CONSIDERATION AND DETERMINATION – ISSUE 3

The relief sought

Characterisation of an approved use

The 1991 Consent was for a railway ballast quarry

Distinguishing elements of a railway ballast quarry

The importance of “operational externalities” in planning law

Transformation of railway ballast quarry into general quarry

Primary mode of transportation

ISSUE 4: THE IMPOSITION OF CONDITIONS OF CONSENT

The Company Respondents’ claim that no conditions of consent were validly imposed

The Applicant Council’s rebuttal of the Company Respondents’ claim

Written approval was given

Alternatively, approval was given but not in writing

The claim of waiver

The claim as to entitlement

The claim relating to the need for a declaration of invalidity

The consequences of invalidity

The claim relating to severance

The only possibility of an unconditional consent

The Company Respondents’ reply to particular contentions

CONSIDERATION AND DETERMINATION – ISSUE 4

The outcome

The SRA did consent to conditions of consent

The “default scenario” does not apply

Interpreting the evidence

The grant of the 1991 Consent – a footnote

An approved development cannot be significantly different to that which was applied for

Further arguments of the parties

ISSUE 5: (NON) COMPLIANCE WITH CONDITIONS 1 AND 6

The Applicant Council’s claim conditions 1 and 6 are contravened

Condition 1 – The “amenity of the neighbourhood” condition

Condition 6 – the product transportation condition

The Company Respondents’ rebuttal

Condition 1 – the “amenity of the neighbourhood” condition

Air quality

Blasting

Condition 6 – the product transportion condition

Conditions and the Eastern Lands

CONSIDERATION AND DETERMINATION – ISSUE 5

Condition 1: Interference with the amenity of the neighbourhood

The concept of “neighbourhood”

Assessing interference with amenity

The evidence on amenity impacts

The assertion of impacts from blasting

Concerns with blasting not pleaded

No relief sought in relation to breach of Condition 1

Qualitative vs quantitative assessment of the conditions

Condition 6: Transport of quarry product

Does Western Lands quarry product morph into Eastern Lands quarry product?

Does Western Lands quarry product become protected by Eastern Lands continuing use rights?

Is condition 6 unworkable and so, 26 years later, should be struck down?

CONSENT TO EXTRACT A FINITE RESOURCE – THE MARTINS CREEK QUARRY CONUNDRUM

ISSUE 6: (NON) COMPLIANCE WITH CONDITION 7 – ENVIRONMENTAL SAFEGUARDS

The Company Respondents’ position

Limit on annual production of 300,000 tonnes per annum

Railway ballast

Maximum of 30 percent by road

Maximum of 24 truck movements per day

Trucking of 80,000 tonnes per annum

Extractive operations beyond the delineated area on Plan 2

Total area of the quarry development

The Applicant Council’s claim that condition 7(b) has been contravened

Condition 7(b)

The extraction area safeguard

The quarry intensity safeguards

The quarry purpose safeguards

CONSIDERATION AND DETERMINATION – ISSUE 6 – (NON) COMPLIANCE WITH CONDITION 7 – ENVIRONMENTAL SAFEGUARDS

The relief sought

The outcome

Necessity of examining 1990 DA and 1990 EIS due to ambiguity as to proposed “environmental safeguards”

Mode of transporation by rail rather than road is an environmental safeguard

Condition 1 is an environmental safeguard

Condition 7(b) was validly imposed

A proposed limit on scale of development was an environmental safeguard

ISSUE 7: (UN) LAWFUL PROCESSING ON LOT 5

The Applicant Council’s claim that the First Respondent is carrying out unlawful processing on Lot 5

The Company Respondents’ rebuttal

CONSIDERATION AND DETERMINATION – ISSUE 7 – UNLAWFUL PROCESSING ON LOTS 5 AND 6

The outcome

Understanding the distinction between dominant and ancillary uses of land

Common sense interpretation required to identify ancillary quarry activities

Whether ancillary processing could occur on Lot 6 remains uncertain

When the dominant purpose becomes unlawful, ancillary purposes no longer protected

ISSUE 8: THE (UN) LAWFULNESS OF THE USE OF THE EASTERN LANDS

The Company Respondents’ claim that the current use of the Eastern Lands is a lawful continuing use

Characterisation

Extent of the continuing use

Railways development

No intensification after 1 December 2012

Alternative argument – if the use was not railways development

No intensification since 3 February 1986

No derogation from the continuing use

The Applicant Council’s claim of unlawful use of the Eastern Lands

Characterisation

Rehabilitation

Railways development

Tertiary plant

Abandonment

Alternative argument – if the use was railways development

Alternative argument – if the use was not railways development

Intensification

The Company Respondents’ reply submissions

Characterisation of the use

Railways development

Rehabilitation

Output of the tertiary plant

The pugmill and pre-coat plant

Transfer or control

CONSIDERATION AND DETERMINATIONN – ISSUE 8 – THE (UN) LAWFULNESS OF THE USE OF THE EASTERN LANDS

The relief sought

The outcome

Current activities on the Eastern Lands

Characterisation of the existing use of the Eastern Lands

At what level ought the use be characterised?

Relevant factors affecting impact of railway ballast quarry

The protected existing use is a railway ballast quarry

Nexus between operations on Eastern Lands and Western Lands

Additional continuing use contentions regarding the Eastern Lands

The implications of the Tertiary Crushing Plant consent DA 162/99

Analysis of the evidence of historical processing on the Eastern Lands

The Company Respondents’ railway undertaking argument

The implications of materials being sourced from offsite for processing on the Eastern Lands

Do the rehabilitation requirements on the Eastern Lands represent a continuing quarry?

Overall conclusion regarding the continuing use rights issue

ISSUE 9: THE ROLE OF THE FIRST RESPONDENT

The Applicant Council’s claim that the First Respondent is carrying out the relevant development

The First Respondent leases the lands

The First Respondent licences the lands to the Second Respondent

The Company Respondents’ claim that the First Respondent is not carrying out the relevant development

CONSIDERATION AND DETERMINATION – ISSUE 9 – THE ROLE OF THE FIRST RESPONDENT

Nexus between the First and Second Respondents

First Respondent has ongoing obligations under the head lease

First Respondent derives profits from development

The First Respondent has not ceded control to the Second Respondent

ISSUE 10: THE VALIDITY OF THE VARIATION OF EPL 1378

The Applicant Council’s claim that the variation of EPL 1378 was invalid and of no effect

The alleged contravention of s 58(6) of the POEO Act

The alleged contravention of s 50 of the POEO Act

Discretion

The Company Respondents’ rebuttal of the claim that EPL 1378 is invalid

The alleged contravention of s 58(6) of the POEO Act

The alleged contravention of s 50(2) of the POEO Act

Discretion

Applicant Council’s rebuttal of argument that variation only in relation to licence fee

Fee based activities

The 2001 variation to EPL 1378

CONSIDERATION AND DETERMINATION OF ISSUE 10 RE EPL VARIATION

The relief sought

The outcome

Elements of s 58(6) are jurisdictional facts

The Company Respondents’ contentions on jurisdictional fact

Legislative intent to allow public participation

The variation would authorise a significant increase in environmental impact

No other environmental assessment of the impacts of the variation had been conducted

The Company Respondents’ contentions on environmental impact

In varying the EPL, did the EPA contravene s 50 of the POEO Act?

ISSUE 11: DISCRETION

The Company Respondents’ claim on discretion

Impacts of development

The Applicant Council’s conduct

Economic impacts of relief

State Significant Development application

Interim Environmental Management Plan (Exhibit 17)

The Applicant Council’s claim on discretion

CONSIDERATION AND DETERMINATION OF ISSUE 11 ON DISCRETION

The outcome

It is appropriate to grant declaratory relief

The alleged delay on the part of the Applicant Council

It is appropriate to make certain orders

DECLARATIONS SOUGHT

ORDERS SOUGHT ARE REFINED

COSTS

ORDERS

Glossary of defined abbreviations

Annexure A – Aerial photograph of the Quarry taken 14 June 2015

Annexure B – Plan 2 of the “Western Lands” dated 15 October 1990

Annexure C – Interim Environmental Management Plan

JUDGMENT

A COUNCIL CHALLENGES THE LEGALITY OF A QUARRY

Background

1. Within the Shire of Dungog, in the Hunter Valley Region, there is an operational quarry and undertaking known as the Martins Creek Quarry (the Quarry). As the name suggests, the Quarry is located next to the town of Martins Creek, off Station Street, and is approximately 4 km from the town of Paterson as the crow flies. The Quarry comprises four lots, being: Lot 5 in Deposited Plan 242210; Lot 6 in Deposited Plan 242210; Lot 1 in Deposited Plan 1006375; and Lot 1 in Deposited Plan 204377.

2. At the outset, it is convenient to divide the lots comprising the Quarry into two notionally separate parcels. The lots to the west of Station Street – comprising Lot 5 in Deposited Plan 242210 (Lot 5), and Lot 6 in Deposited Plan 242210 (Lot 6) – will henceforth be referred to as the Western Lands. The lots to the east of Station Street – comprising Lot 1 in Deposited Plan 1006375 and Lot 1 in Deposited Plan 204377 – will henceforth be referred to as the Eastern Lands.

Eastern Lands – relevant history

3. The relevant history of the Eastern Lands dates back to around 1914 whilst, for the Western Lands, the earliest relevant year is 1990. Amongst the evidence placed before the Court was material which provided an overview of the history of the Quarry and an understanding of the operations of a railway ballast quarry. In particular, tendered by the Company Respondents were extracts from an historical work titled “Martin’s Creek Ballast Quarry” written by Mr Peter Attenborough (Exhibits 4A, 4B and 4C).

4. In either 1914 or 1915, a State owned and operated quarry commenced operations on part of the Eastern Lands “for the purpose of maintaining the [railway] traffic on the existing line of railway between West Maitland and Taree”. Between 1952 and 1975, the area resumed for the Quarry on the Eastern Lands expanded. By the end of 1993, extraction activities on most of the Eastern Lands ceased but it is contested whether all allegedly extraction-related activities ceased (such as rehabilitation, stockpiling and various ancillary uses).

5. On 18 May 1999, Dungog Shire Council (the Applicant Council) formally resolved to recognise and accept the existence of existing use rights on part of the Eastern Lands for the processing of material. In so doing, the Applicant Council concurrently resolved that “[p]rocessing of materials on Lot 2 in DP 524511 is limited to 449,000 tonnes of bulk material per annum”. On 17 September 1999, Rail Services Australia (RSA) was notified that the Applicant Council had granted development consent for the “erection and operation of fixed tertiary crushing equipment” on part of the Eastern Lands. In these proceedings, the Court has been called upon to determine whether there are other extant rights enabling other parts of the Eastern Lands to be utilised for quarry-related processing and with respect to the consent that was granted whether its allowed production limit has and is being impermissibly exceeded

Western Lands – relevant history

6. With respect to the Western Lands, the relevant history commences on 8 August 1990 when the State Rail Authority of New South Wales (SRA) lodged a development application (DA) with the Applicant Council (the 1990 DA) – which described: the proposed development as “quarry for railway balast [sic]” and the location of the proposed development as “Lot No. 5 + 6” of “D.P. 232210 [sic]” (with an area of 10 ha.) – and copies of an accompanying environmental impact statement (EIS) dated July 1990 (1990 EIS).

7. On 12 February 1991, the Applicant Council formally resolved “that development consent be granted for an extractive industry being a quarry winning material primarily for railway ballast on lots 5 and 6 in DP 242210 … subject to the following conditions” (18 conditions were then specified). This was followed by the Applicant Council sending the SRA a notice of determination of the 1990 DA on 7 March 1991 (Notice), in which the development was described as “An Extractive Industry (Designated Development) being a quarry, winning material primarily for railway ballast”. On 14 March 1991, the Applicant Council formally resolved that the “conditions of development consent be amended to read …” (15 conditions were then specified). These amended conditions were sent to the SRA on 21 June 1991.

8. In this judgment, the consent given by the Applicant Council in relation to the 1990 DA will be referred to as the 1991 Consent. For the purposes of the judgment at this overview stage, for ease of reference the Applicant Council’s decisions of 12 February and 14 March will collectively be referred to as the 1991 Consent. Later in the judgment, after setting out its analysis, the Court will precisely identify the consequences of each resolution so as to clarify when the Applicant Council’s actions “matured” into the final 1991 Consent. The precise date on which that consent was granted was in contention and is discussed in Issue 4 below.

9. Since the granting of the 1991 Consent, quarrying has been carried out on the Western Lands to the present day. In the context of quarrying having ceased on the Eastern Lands from late 1993, processing of quarry product extracted from the Western Lands has been conducted on the Eastern Lands since the commencement of the Western Lands quarry.

The First and Second Respondents

10. Hunter Industrial Rental Equipment Pty Ltd (the First Respondent), by virtue of two separate leases, is now the lessee of both the Western and Eastern Lands. Whilst it is contested as to whether Buttai Gravel Pty Ltd (the Second Respondent) occupies the Western Lands and Eastern Lands as a sub-lessee or licensee, it is clear that the Second Respondent manages the day-to-day operation of the Quarry (and has done so since late 2012, when the State’s long-standing involvement with the Quarry ended). Relevantly, the Second Respondent holds an environment protection licence (EPL), EPL 1378, for the scheduled activities of “crushing, grinding or separating works” and “extractive industries” at the Quarry. Collectively the First and Second Respondents will be referred to as the Company Respondents in this judgment.

The Third Respondent – Environment Protection Authority

11. EPL 1378 was issued on 2 May 2000 (Exhibit R-1, p 677-694) by the Third Respondent, the Environment Protection Authority (EPA) under the Protection of the Environment Operations Act 1997 (POEO Act). On 2 April 2007, following a number of earlier variations, the EPA gave notice of its decision to vary EPL 1378 to significantly increase the scale of the fee-based activity of “hard-rock gravel quarrying”. That notice of variation of EPL 1378, being Variation No 1071585, is said by the Applicant Council to be invalid. The contentions regarding this EPL variation is addressed as Issue 10 in this judgment.

12. The EPA has filed a submitting appearance in these proceedings, save as to costs.

Essence of the case, shortly stated

13. Although these proceedings are complex and involve many challenging legal and factual issues, the essence of this case can be shortly stated. The Applicant Council claims that the Company Respondents are operating “a very large scale designated development at the Martins Creek Quarry without that development having been the subject of any proper environmental assessment and that the development is being carried out unlawfully, in the absence of the requisite approvals under the Environmental Planning and Assessment Act 1979”.

The case in relation to the Western Lands

14. With respect to the Western Lands, the Applicant Council seeks to enforce the Environmental Planning and Assessment Act 1979 (EPA Act) by establishing that the Company Respondents are carrying out development both in breach of the 1991 Consent and without the requisite consent. More specifically, the Applicant Council advances four principal contentions as to why the Company Respondents are contravening s 76A of the EPA Act (now s 4.2) in carrying out development on the Western Lands.

15. First, the Applicant Council alleges that the Company Respondents are carrying out development for the purpose of extractive industry beyond the area of land approved for such development (with the approved area said to comprise a specified area within Lot 5) and, therefore, without the requisite consent. Secondly, the Applicant Council alleges that the Company Respondents are carrying out development for an unapproved extractive industry purpose – rather than for the approved purpose of a quarry winning material primarily for railway ballast – and, therefore, without the requisite consent. Thirdly, the Applicant Council alleges that the Company Respondents are carrying out development for the purpose of processing extractive materials without the requisite consent. Fourthly, the Applicant Council alleges that the Company Respondents are carrying out development in contravention of three conditions of the 1991 Consent. In particular, the Company Respondents are said to be in breach of the following alleged conditions of consent: a condition relating to the amenity of the neighbourhood; a condition restricting the number of truck movements; and a condition relating to environmental safeguards.

16. The relief that the Applicant Council seeks from the Court with respect to the Western Lands includes nine declarations and nine orders (Amended Summons, prayers 1-16 and 25-26). It is uncontroversial to observe that if the orders sought were made by the Court, the Company Respondents would be significantly restrained in carrying out quarry-related development on the Western Lands.

The case in relation to the Eastern Lands

17. With respect to the Eastern Lands, the Applicant Council seeks to enforce the EPA Act by establishing that the Company Respondents are carrying out development without the requisite consent. More specifically, the Applicant Council advances four principal contentions as to why the Company Respondents are contravening s 76A (now s 4.2) of the EPA Act in carrying out development on the Eastern Lands.

18. First, the Applicant Council alleges that the Company Respondents are – by processing materials and manufacturing products – carrying out development for the purpose of general or heavy industry on part of the Eastern Lands without the requisite approval. Secondly, the Applicant Council alleges that the Company Respondents are – by storing, stockpiling and transporting extracted materials on part of the Eastern Lands – carrying out development without the requisite consent. Thirdly, the Applicant Council alleges that the Company Respondents are – by installing and using a pugmill for the purpose of manufacturing – carrying out development without the requisite consent. Fourthly, the Applicant Council alleges that the Company Respondents are – by installing and using a pre-coat plant for the purpose of manufacturing – carrying out development without the requisite consent.

19. Additionally, the Applicant Council also claims that the crushing and stockpiling of quarried material on part of the Eastern Lands constitutes an enlargement, expansion or intensification of a lawful continuing use of the land contrary to s 109 (now s 4.68) of the EPA Act.

20. The relief that the Applicant Council seeks from the Court with respect to the Eastern Lands includes four declarations and four orders (Amended Summons, prayers 17-24). As above, if the orders sought were made by the Court, the Company Respondents would be significantly restrained in carrying out development on the Eastern Lands.

21. Further to the Applicant Council’s claims regarding the EPA Act, another major plank in the Applicant Council’s case is its claim that the variation to EPL 1378, made on 2 April 2007 by the EPA, is invalid and of no effect because it was made in contravention of the POEO Act. The Applicant Council seeks from the Court a declaration to this effect and a consequential order restraining, in effect, the Company Respondents from relying on that variation (Amended Summons, prayers 27-28).

22. The Company Respondents deny all of these overarching allegations made by the Applicant Council. Ultimately, the Company Respondents maintain that the development being carried out on the Western and Eastern Lands is not “being carried out unlawfully, in the absence of the requisite approvals under the [EPA Act]”. With respect to the Western Lands, the Company Respondents claimed that the relevant development is approved by the 1991 Consent. With respect to the Eastern Lands, the Company Respondents claimed that the relevant development is lawful, by virtue of s 109 of the EPA Act, as a continuing use. Importantly, it is also claimed that the Applicant Council’s case against the First Respondent should be dismissed because the First Respondent cannot be said to have carried out any of the development alleged to be unlawful.

23. However, in the event that the Applicant Council successfully establishes that the Second Respondent and/or First Respondent have carried out development at Martins Creek unlawfully, the Company Respondents argued that the Court should exercise its discretion to decline to grant the relief sought by the Applicant Council in its Amended Summons. The Company Respondents made a similar argument with respect to the variation of EPL 1378. The Applicant Council countered that the Court should grant the relief that it seeks in the event that it is successful. In this respect, it is also relevant to note at the outset that the Second Respondent has lodged, under the EPA Act, a State Significant Development application (SSD Application) for the Martins Creek Quarry Extension Project, which has yet to be assessed and determined by the relevant consent authority.

Lot 42 DP 815628 – Land not the subject of the proceedings

24. In the course of the proceedings a further parcel of land, Lot 42 in Deposited Plan 815628, had at times been included in references to the Quarry in association with the Western Lands. Two boundaries of Lot 42 abut the southern part of Lot 5 (T8.41). In par 5 of the Amended Points of Claim it is stated that the First Respondent is the lessee of land comprising Lot 42 under a lease from the owner of that land Nodekeda Pty Limited. In their Amended Points of Defence the Company Respondents admit that pleading. In par 7 of the Amended Points of Claim it is stated that Nodekeda does not wish to take part in the proceedings.

25. A review of the 1990 DA, the land particulars set out in the 1990 EIS (Exhibit R-1, p 176) and the Applicant Council’s letter of 7 March 1991 (Exhibit R-1, p 355) and the resolutions of the Applicant Council of 12 February and 14 May 1991 (February Resolution and May Resolution, respectively), all confirm that Lot 42 was never the subject of the 1991 Consent. By correspondence from the Council dated 15 June 1992 (Exhibit Q being the Applicant Council’s supplementary evidence book, p 1) it appears that the Applicant Council was then encouraging Freight Rail to “negotiate with Mrs Giselle Thomas the owner of Lot 42 (in DP 815628) relative to purchase” on the basis that “Freight Rail should purchase adjoining land owned by Mrs Thomas and any other land sterilized by the quarry’s operations”.

26. There appears to have been a DA 171/94/41 made in March 1995 with respect to Lot 42, by which development consent was sought for extraction of stone and processing (Exhibit R-1, p 447). There was also evidence received that a consent was obtained with a 10 year operational limit (T657.40-45; T685.1-9; T752.46-50; and T787.1-6). Despite the examination and cross examination of witnesses regarding quarrying on Lot 42, the Court proceeds on the basis of the assurance given to the Court in the opening by Mr Howard, senior counsel for the Applicant Council. He advised the Court that Lot 42 forms part of the Western Lands but that “there’s no claim or counterclaim in relation to that parcel of land and quarrying is, as we understand it, not being carried out on that portion, so that the western lands, effectively, where extraction has and is taking place comprise lots 5 and 6” (T7.41-46). Accordingly, the Court proceeded on the basis that Lot 42 does not form part of the Quarry in contention and so is outside the lands which are the subject of these proceedings.

27. In view of the foregoing, surprisingly the Amended Summons erroneously included Lot 42 when making reference to development on the other Western Lands lots. In particular, prayer 4 seeks a declaration that any further extraction of material from the Western Lands and Lot 42 is prohibited. Prayer 5 then seeks an order restraining the Company Respondents from extracting any further material from the Western Lands and Lot 42. If the evidence had shown that material was being extracted from Lot 42 without a development consent, the Court would have made the declaration and restraining order sought. However, despite the reference to Lot 42 remaining in the relief sought in the Amended Summons through to the end of the proceedings, the Court assumes it remained due to oversight. Accordingly, there will be no relief granted with respect to Lot 42.

The 11 primary issues to be addressed

28. Whilst the principal overarching allegations made by the Applicant Council have been set out above, it is important to note that the parties, quite appropriately, structured their submissions to address the allegations in a neatly sequential and confined manner. The Court has decided to adopt a structure which replicates the manner in which the parties helpfully organised their submissions to address the critical legal issues. Considered seriatim, these issues are as follows:

1. Whether or not the 1990 DA and 1990 EIS should be taken to be incorporated into the 1991 Consent.

2. Whether or not the Company Respondents are carrying out extractive operations on Lot 6 (and part of Lot 5) without the requisite development consent and, therefore, unlawfully.

3. Whether or not the Company Respondents are unlawfully carrying out the unapproved extractive industry development on Lots 5 and 6 of a quarry winning material primarily for the manufacture of concrete, asphalt and spray seal aggregates and road and pavement construction materials (rather than a quarry winning material primarily for railway ballast).

4. Whether or not conditions of the 1991 Consent were validly imposed and if so, what are those conditions and if not, what are the consequences.

5. Whether or not the Company Respondents are contravening conditions 1 (relating to neighbourhood amenity) and 6 (relating to product transportation) of the 1991 Consent.

6. Whether or not the Company Respondents are contravening condition 7(b) of the 1991 Consent (relating to environmental monitoring/environmental safeguards).

7. Whether or not the Company Respondents – in using a manufactured sand processing plant and associated facilities and two mobile processing plants – are carrying out unlawful processing on Lots 5 and 6.

8. Whether or not the current use of the Eastern Lands is a lawful continuing use under s 109 (now s 4.68) of the EPA Act and, hence, whether or not the Company Respondents are unlawfully processing materials and manufacturing products on the Eastern Lands.

9. Whether or not the First Respondent can be liable for carrying out development on the Eastern Lands and Western Lands unlawfully in circumstances where it has allegedly not carried out any of the relevant development on the Eastern Lands and Western Lands.

10. Whether or not the variation of EPL 1378 was invalid and of no effect.

11. Whether or not, if the Applicant Council were to be successful, the Court should exercise its discretion under s 124 (now 9.46) of the EPA Act to decline to grant the Applicant Council the relief that it seeks.

29. Many of these overarching issues involve a plethora of significant constituent issues. In particular, the continuing use issue (Issue 8) involves a number of detailed legal and factual issues and requires the careful consideration of alternative cases.

The magnitude of the proceedings

30. As might be apparent from what has already been said, the scale of these proceedings is considerable. The substantive hearing spanned across 22 days (including one day of an on-site view) and involved the adducing of (sometimes complicated) oral evidence from many witnesses (experts and laypeople). The four volume evidence book (including affidavits) spans some 2,784 pages (albeit not all admitted as evidence), 37 (sometimes considerably detailed) further exhibits were tendered, and a folder of historical legislation was provided to the Court. Moreover, the total word count of the parties’ written submissions was well over 100,000 (which were complemented by extensive oral submissions over the many days of hearing) and the parties collectively relied upon at least 131 (often seminal) town planning law authorities.

31. None of the above is to suggest that counsel and the solicitors for the parties did not present their respective cases admirably and efficiently or should be seen as the Court grumbling about the task before it. To be clear, counsel and the relevant solicitors enabled the hearing of the proceedings to be efficient and provided significant assistance to the Court.

32. However, it is important to convey the magnitude of the proceedings to justify why this judgment will not provide: an entire summary of the relevant body of oral and written evidence, an entire separate summary and consideration of the relevant legal principles relating to the overarching legal issues, or an entire history of events relevant to the quarry-related activities on the Western and Eastern Lands. To attempt to undertake this herculean task is simply not sensible and would probably be of limited utility and, even worse, prove distracting and confusing: see, eg, Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156at 171-172.

33. Instead, this judgment will provide a detailed summary of the competing positions of the parties (on Issues (1)-(11) above) which draws out the pertinent evidence that has been relied on by the parties. This does not mean that the Court has only considered the evidence expressly or implicitly relied upon by the parties. What it does mean is that the Court has focused on the key evidence relied upon by the parties to support their propositions. Moreover, given the scale of this judgment, the Court has staggered its consideration of the legal issues such that each summary of the competing positions of the parties is followed by the Court’s determination of that issue.

34. Notwithstanding the above, in order to properly contextualise this judgment it is necessary to: briefly explain some pertinent aspects of the nature of the body of relevant evidence and identify the documents that are annexed to this judgment; and briefly outline salient parts of the relevant statutory framework.

35. However, first, the Court has decided to concisely set out the outcome of the proceedings and identify its critical determinations and findings.

THE OUTCOME OF THE PROCEEDINGS

Western Lands – major conclusions

36. It is appropriate at the outset to indicate that, with respect to the Western Lands, the Court has decided as follows.

1. The proposal which was sought in the 1990 DA, considered and then approved by the 1991 Consent was specifically a railway ballast quarry and not a more generic quarry.

2. Although Lots 5 and 6 were approved as the subject land for the purposes of the railway ballast quarry, the extraction of stone component of the quarry activity was to be contained entirely within Lot 5 and only a 5 ha portion of it. The outer perimeter of the area, within which the 5 ha was to be located, was delineated on an indicative plan, albeit a sketch plan, being Plan 2 in the 1990 EIS accompanying the 1990 DA. Ancillary components of the railway ballast quarry were approved to be within a restricted 5 ha area of Lot 6.

3. The aggregate area to be occupied by the approved development, comprising all components, was intended to be limited to approximately 10 ha and therefore not across the entire 52.5 ha of Lots 5 and 6.

4. Although processing of extracted rock on the Western Lands was a legitimate ancillary land use when the Quarry commenced, once the primary development of extraction impermissibly extended beyond the permitted location and depth, thereby increasing productivity beyond envisaged production, the ancillary lawful entitlement to conduct processing on the Western Lands ceased because the primary development was no longer lawful.

5. Contrary to the case pressed by the Company Respondents that the 1991 Consent with respect to the Western Lands was issued unconditioned on 12 February 1991, the Court has found that the May Resolution, of 14 May 1991, granted a valid development consent and that the consent validly imposed development conditions.

6. In order for the 1991 Consent to be correctly construed it is necessary and proper to incorporate relevant components of the 1990 DA and its associated 1990 EIS into the Consent.

7. Condition 6 in the 1991 Consent validly imposed a restriction that the transport of quarry product by road was not to exceed “greatly more than 30% of quarry products” on an annual basis.

8. Condition 1, being the requirement that there not be interference with the amenity of the neighbourhood, has been breached, primarily due to a very significant increase in truck movements associated with the Quarry.

9. With respect to all of the findings just summarised, the Court has decided it is appropriate to exercise its discretion in favour of the Applicant Council and so has decided to make the orders sought in response to prayers 1-9, 11, 12, 25 and 26 of the prayers for relief in the Amended Summons, modified as the Court has considered necessary. All orders are stayed for a period of three months.

10. The Applicant Council has not made out its case that the 1991 Consent limited the extraction of stone from Lot 5 to not more than 300,000 tonnes per annum; therefore no order is made with respect to prayer 10 in the Amended Summons.

11. The Applicant Council has not made out its case that the 1991 Consent limited the transporting of quarry products to no more than 12 truckloads per day; therefore no order is made with respect to prayers 13 and 14 in the Amended Summons.

12. The Applicant Council has not made out its case that the 1991 Consent limited the transporting of quarry products to no more than 80,000 tonnes per annum of quarried material , therefor no order is made with respect to the 15th and 16th prayers for relief in the Amended Summons

Eastern lands – overall conclusion

37. With respect to the numerous issues with respect to the Eastern Lands issues, the Court’s major conclusions are as follows.

1. Conflating a large number of separate complex issues which explored the validity of the processing of quarry materials on the Eastern Lands, the Applicant Council has succeeded in establishing its case that the processing, in its multiple forms, lacks development consent and is not protected by either existing or continuing use rights. The range of issues and the extent of arguments that needed to be determined are too numerous to be further summarised in this overview. Further, given the complexity inherent in most of these issues, there is a danger in too simplistically reducing the Court’s conclusions to dot points.

2. The April 2007 variation to EPL 1378, by which the production capacity at the Quarry was permitted to increase from 500,000 tonnes per annum to 2 million tonnes per annum, was invalidly made because both ss 58(6) and 50 of the POEO Act were breached.

3. With respect to each of the Eastern Lands findings just summarised, the Court has decided it is appropriate to exercise its discretion in favour of the Applicant Council and so has decided to make the orders and declarations sought in response to the 17th to 24th, 27th and 28th prayers for relief in the Amended Summons, modified as the Court has considered necessary. All orders are stayed for a period of three months

The context of the Court findings

38. The importance of identifying precisely what was sought in the 1990 DA and then determining precisely what received consent, constrained by the parameters set by that 1990 DA and nothing more, calls for a reflection of the context within which this judgment is written. Although in the minority in the judgment in Hillpalm Pty Ltd v Heaven’s Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 (Hillpalm), Kirby J’s obiter observations at [71]-[73] provide a useful reminder of the context for the determination of the issues in this case, charging this Court to ensure that an unjustified expansion of development far beyond that originally proposed, and consented to, ought not to be condoned.

“71   The nature and purpose of land use law: In order to understand the operation of planning law — both under the LGA and, when it came into force, the EPAA, it is necessary to appreciate that it is concerned with fundamentally more important objectives than the rights of those with various interests in land inter se. Of their nature, such laws, governing consent to development generally, and to subdivisions in particular, are concerned with the orderly management of land in society so as to protect at once the interests of individuals, the community and the environment

72   This point was well made by Street CJ in F Hannan Pty Ltd v Electricity Commission (NSW) [No 3] at [310]-[313]. His Honour's analysis is generally accepted as the classic exposition of the nature and scope of the jurisdiction and powers of the Land and Environment Court to grant remedies for breaches of the EPAA pursuant to the provisions whose scope is in issue in this appeal. However, much of what Street CJ says in that connection (whilst especially pertinent here) is also applicable to the purpose and effect of conditions imposed under the former planning law in the LGA. I shall return to his Honour's analysis later. For the moment it is enough to notice the essential point he made at [313]:

‘[T]he task of the Court is to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes.’

73   The reason for the breadth of this principle lies in the central purpose of planning law for land management and use. That purpose is to ensure, relevantly, that the basic purposes necessary to that task are observed and conditions essential to a modern interdependent society observed. Apart from the considerations already mentioned, one has only to think of societies that do not protect their environment and land-based infrastructure, but permit developments to occur without observance of overall planning control and environmental protection. It is because of the chaos that can ensue in such circumstances that the ultimate focus of planning regulation law is the land itself. It is not, as such, merely the ephemeral ownership or possession of the land.”

39. In the context of the foregoing, it would be unjust for the 1991 Consent, effectively by default, to be interpreted as having been granted for a far larger area (and consequentially allowing far larger quarrying operations) than that which was applied for by the SRA and envisaged by responding authorities and the community-at-large. It would have the effect of including areas for development, and greater consequential impacts, which were not properly considered for expanded operations. Further, to accept that the 1991 Consent extended to a larger area than that originally proposed in the 1990 DA would effectively undermine, indeed potentially make a mockery of, public participatory processes

40. The Court of Appeal in GPT Re Limited v Belmorgan Property Developments Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256 at [49] highlighted the relevance of the implications for the public when it examined conditions in a consent which may have the effect of the development consented to becoming not that for which approval was sought but rather a different development to that proposed. The Court said:

“49.   The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections.”

41. In this case the 1990 EIS, accompanying the 1990 DA, would have left no doubt to a reader, say a member of the public or an approval authority, that the proposal involved, inter alia, a railway ballast quarry with the extraction of rock limited to a specified 5 ha area within Lot 5. With respect to other authorities to which the 1990 EIS was forwarded, the Applicant Council’s town planner’s report of 12 February 1991 (Exhibit R-1, p 332) lists no less than eight State agencies/authorities/departments which were sent that document. The planner’s report then provides a summary of these agencies’ responses (Exhibit R-1, pp 333-334). To subsequently find the 1991 Consent, as the Company Respondents would have it, extending the area allowed for extractive activity far beyond that proposed in Lot 5, potentially to 52.5 ha across all of Lots 5 and 6, would never be acceptable in practice or in principle when responding persons and agencies believed that the proposal described in the 1990 EIS was that which they should consider. That suggested by the Company Respondents must surely be an undesirable outcome from a public policy perspective and an unacceptable interpretation of the legal instruments intended to constrain the development to that ostensibly proposed and approved, rather than some amorphous undefined expansion that has incrementally come about in a manner never considered by the public or by relevant authorities and extended into areas never contemplated.

THE EVIDENCE

The annexures

42. In order to assist a proper understanding of the legal and factual issues concerning the use of the Quarry, the Court has decided to annex the following documents (which were tendered in Court) to this judgment:

1. An aerial image of the Quarry taken on 14 June 2015, which was tendered as Exhibit 2 (Annexure A).

2. A copy of a document entitled “Plan 2” received by the Applicant Council on 15 October 1990, which was also tendered as part of Exhibit R-1 (Annexure B).

3. Interim Environmental Management Plan (IEMP) (Annexure C).

The documentary evidence

43. As has already been indicated, a considerable amount of documentary evidence was tendered in these proceedings in the four volumes of the evidence book (Exhibit R) and numerous other exhibits.

44. With respect to the evidence book, although unclear, many important documents, such as relevant minutes of the Applicant Council and documents concerning the 1990 DA, appear to be derived from a file (records) kept by the Applicant Council with respect to the regulation of the Quarry. The evidence book contains a significant amount of important correspondence (over a lengthy period) between (variously) regulatory agencies, State rail entities (including the SRA), the Second Respondent and the Applicant Council. Further, numerous documents concern EPL 1378.

45. In addition to these categories of documents, the evidence book also contains relevant historical notifications of resumption of land, pollution control licences, aerial photographs and images, maps etc. As will be described in more detail below, the evidence book also includes most of the layperson and expert affidavits that were read in the proceedings.

46. With respect to the other exhibits, the evidence is notably varied and includes, for example, historical and recent aerial images and maps, quarry operations data, correspondence between the Applicant Council and relevant State entities, a bundle of photographs of the Quarry and financial and tax invoices.

The layperson evidence

47. The layperson evidence (both written and oral) can be categorised in two groups: first, the noise and amenity related evidence of residents of the towns of Paterson and Martins Creek; second, the evidence of people who work or who have worked at the Quarry (or for the Daracon Group) and/or have been relevantly involved in the regulation of the Quarry.

48. The layperson evidence in the first category included that of Mr Frederick Ashton, Ms Kristy Buttsworth, Mr John McNally, Mrs Pamela Atkinson, Mr Christopher Atkinson, Ms Robin Darnley, Ms Kathleen Isherwood, and Ms Leesa Priestly.

49. The layperson evidence in the second category included the critical evidence of Mr Frank Martin and Mr Paul Walker. Mr Martin – who has lived nearby the Quarry since his childhood in the 1940s – began working at the Quarry (initially as a labourer) in November 1968 and finished working at the Quarry upon his retirement in 2001. Mr Walker was appointed as the quarry manager at the Quarry in December 1984, has a longstanding history with the Quarry; and is now employed by the Second Respondent as the quarry manager. Mr Jason Hearn, a divisional manager for the Daracon Group (see below), gave evidence with respect to the Quarry’s complaints system.

50. The other important layperson witness to identify is Ms Jacqueline Tupper, who is the manager of planning at the Applicant Council and has detailed knowledge of how the Applicant Council has sought to regulate and monitor the Quarry.

51. Additionally, the evidence of Mr Darren Robson should also be noted. Mr Robson is the company secretary for the Daracon Group (and was the Group Financial Controller until December 2016), a private family-owned group of companies that comprises a trading group of companies (including the Second Respondent) and has a number of other affiliated companies (which include the First Respondent, as the corporate trustee for the S Mingay Family Trust).

The expert evidence

52. The expert evidence in these proceedings was relatively limited. The parties each adduced evidence from an acoustic/noise expert, Mr Raymond Tumney and Mr Steven Cooper, with respect to the noise and amenity impacts of the Quarry.

53. Other than this evidence, it is only necessary to note that the Company Respondents also relied, to a fairly limited extent, on the expert evidence of a registered surveyor, Mr David Wallace, a roads and pavements expert, Mr Roy Bartlett, and an air quality expert, Mr Aleksander Todoroski.

54. It is not necessary to outline this expert evidence in any detail because the pertinent details will be drawn out below by showing, in outlining the parties’ submissions, what the parties relied upon.

THE STATUTORY FRAMEWORK

55. As has been indicated above, it is not sensible to outline all of the relevant historical and current statutory sections and clauses that the Court is required to consider in this case. Instead, what follows is an outline of some of the most pertinent historical and current statutory provisions from the EPA Act and the POEO Act relating to: the regulation of development; the power to determine DAs in 1991; the regulation of existing uses; orders of the Court; and EPLs.

56. This case was heard prior to the EPA Act being substantially amended by the Environmental Planning and Assessment Amendment Act 2017, which commenced on 1 March 2018. Where the Court has considered it helpful to an understanding of the judgment and in order to facilitate an understanding of any relevant implications of the amended EPA Act following 1 March 2018, in this judgment, the updated section references in the now extant Act will be set out alongside the original section references. However, save for those instances where ongoing contraventions are alleged, all of the applications, consents, matters and considerations occurred some years before the amendments to the EPA Act came into operation.

The regulation of development

57. Under s 4 (now s 1.5) of the EPA Act, development is defined to mean, inter alia, “the use of land” and “the carrying out of a work”. The EPA Act regulates development by way of a threefold system of classifying development. As was explained by Ipp JA in Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 at [33], the three categories of development are delineated under Div 1 of Pt 4 of the EPA Act:

“The first category is that provided by s 76(1). Section 76(1) concerns specified developments that, by an “environmental planning instrument”, may be carried out without the need for development consent. The second category of development is set out in s 76A(1) and concerns a specified development that, by an environmental planning instrument, may not be carried out except with development consent. The third category is set out in s 76B. It concerns developments that, by an environmental planning instrument, are prohibited, or a development that cannot be carried out on land with or without development consent.”

58. Relevantly for these proceedings, s 76A (now s 4.2) prohibited a person from carrying out development on land that needs development consent without such consent:

76A Development that needs consent

(1)   General

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

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

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

(2)   For the purposes of subsection (1), development consent may be obtained:

(a)   by the making of a determination by a consent authority to grant development consent, or

(b)   in the case of complying development, by the issue of a complying development certificate.

…

The power to determine DA in 1991

59. Under the EPA Act as at 1991, the power for a consent authority to determine a DA by granting consent (either unconditionally or subject to conditions) or refusing consent was set out in s 91. However, if a DA was made by or on behalf of the Crown or a prescribed person, s 91A was applicable to the determination of the DA. In full, s 91A was in the following terms:

Determination of development application by Crown, etc.

91A. (1) A consent authority, in respect of a development application made by or on behalf of the Crown or a prescribed person –

(a)   shall not refuse its consent to the application except with the written approval of the Minister; and

(b)   shall not impose a condition of its consent except with the written approval of the Minister or the applicant.

(2) If, on the expiration of the prescribed period after the date of the Minister’s notification to a consent authority that –

(a)   the Minister does not approve the refusal of consent to a development application; or

(b)   the Minister does not approve the imposition of any condition of a consent to a development application,

the consent authority has not determined the development application in accordance with the decision of the Minister, the consent authority shall be deemed to have granted unconditional consent to the development application.

60. In order to determine who was a prescribed person and what the prescribed period was one would have to have had recourse to the applicable clause of the Environmental Planning and Assessment Regulation 1980 (EPA Regulation): being cl 41B. That clause provided as follows:

Development applications by Crown etc.

41B (1) For the purposes of section 91A(1) of the Act, the following persons are prescribed:

(a)   a public authority (not being a council);

(b)   a public utility;

…

(3) For the purposes of section 91A(2) of the Act, the prescribed period is 40 days.

61. It is also relevant to identify that a public authority was defined under s 4 of the EPA Act to mean “a public or local authority constituted by or under any Act, a government Department or a statutory body representing the Crown, and includes a person exercising functions on behalf of that authority, Department or body”.

The regulation of existing uses

62. The EPA Act has regulated existing uses since coming into force. Whilst the historical versions of the relevant operative sections are relevant for the purposes of this judgment, only the current provisions are set out below.

63. Division 10 of Pt 4 of the EPA Act sets out the provisions governing the continuance of and limitations on existing uses. The definition of the term “existing use” is set out in s 106, the provisions of which “…are definitional only: they have no operative effect”: Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [39] and BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [23]. “Existing use” is defined under s 106 to mean:

106 Definition of “existing use”

In this Division, existing use means:

(a)   the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and

(b)   the use of a building, work or land:

(i)   for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and

(ii)   that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.

64. Sections 107-109B are the operative existing use provisions of the EPA Act. For these proceedings, the provisions in ss 107 and 109 are of particular relevance:

107   Continuance of and limitations on existing use

(1)   Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.

(2)   Nothing in subsection (1) authorises:

(a)   any alteration or extension to or rebuilding of a building or work, or

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)   without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

109 Continuance of and limitations on other lawful uses

(1)   Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.

(2)   Nothing in subsection (1) authorises:

(a)   any alteration or extension to or rebuilding of a building or work, or

(b)   any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or

(c)   without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or

(d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or

(e)   the continuance of the use therein mentioned where that use is abandoned.

(3)   Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.”

Powers of the Court to make orders

65. Division 3 of Pt 6 of the EPA Act makes provision for orders of the Court. For the purposes of this judgment it is convenient to set out ss 122-124 (now ss 9.44 – 9.46):

122 Definitions

In this Division:

(a)   a reference to a breach of this Act is a reference to:

(i)   a contravention of or failure to comply with this Act, and

(ii)   a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and

(b)   a reference to this Act includes a reference to the following:

(i)   the regulations,

(ii)   an environmental planning instrument,

(iii)   a consent granted under this Act, including a condition subject to which a consent is granted,

(iv)   a complying development certificate, including a condition subject to which a complying development certificate is granted,

(v)   an order under Division 2A,

(vi)   a planning agreement referred to in section 93F.

123 Restraint etc of breaches of this Act

(1)   Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach.

(2)   Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)   Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)   (Repealed)

1. It is declared that any further extraction of material from Lots 5 and 6 is prohibited until development consent has been duly granted under the Environmental Planning and Assessment Act 1979 for the further extraction of extracted material from those lots.

2. It is ordered that the First and Second Respondents be restrained from extracting any further material from Lots 5 and 6 unless and until they are authorised to do so by a development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

3. It is declared that the 1991 Consent does not permit the carrying out of any operations involving the extraction of rock on Lot 6.

4. It is ordered that the First and Second Respondents, by themselves their servants agents or assigns, be restrained from carrying out operations involving the extraction of rock on Lot 6 unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

5. It is declared that the 1991 Consent permits the carrying out of extractive operations on Lot 5, only within the area and to the depth of 40 m RL identified on the drawing entitled “Plan 2, Proposed Quarry, Lots 5 & 6 DP 242210” (Plan 2) which formed part of the Environmental Impact Statement dated July 1990 prepared by D P James for the State Rail Authority of NSW which accompanied the application for the 1991 Consent.

6. It is ordered that the First and Second Respondents, by themselves their servants agents or assigns, be restrained from carrying out extractive operations on Lot 5 otherwise than in accordance with the limitations as to area and depth of 40 m RL identified on Plan 2, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

7. It is declared that the First and Second Respondents are transporting by road more than 30% of the lawful annual production of the quarry material from Lots 5 and 6 contrary to condition 6 of the 1991 Development Consent.

8. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns, be restrained from permitting the transport by road of more than 30% of the lawful annual production of the quarried material from Lots 5 and Lot 6, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

Development on Lot 1 in DP 1006375 and on Lot 1 in DP 204377

12. It is declared that the development being carried out by the First and Second Respondents, by themselves, their servants, agents or assigns, on that part of Lot 1 DP 1006375 that formerly comprised Lot 2 DP 524511, being the crushing and stockpiling of quarried material, constitutes an enlargement, expansion or intensification of the use of the said land for the purpose of a crushing plant as at 5 February 1986, contrary to s 4.68(2) of the Environment Planning and Assessment Act 1979.

13. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns, be restrained from carrying out on that part of Lot 1 DP 1006375 that formerly comprised Lot 2 DP 524511 the crushing or stockpiling of more than 449,000 tonnes of bulk quarried material (310,000 tonnes of saleable product) per annum unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

14. It is declared that the First and Second Respondents, by themselves, their servants, agents and assigns, are using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing stockpiling and transportation of extracted material without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.

15. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns be restrained, using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing, stockpiling or transportation of extracted material on the said land unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order.

16. It is declared that the development being the installation and use of a pugmill and associated silos and tanks and associate infrastructure and the stockpiling of extracted material and fly ash by the First and Second Respondents on Lot 1 DP 204377 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.

17. It is ordered that the First and Second Respondents remove the pugmill and associated silos and tanks and associated infrastructure and the stockpiled extracted material and fly ash from Lot 1 DP 204377 and cease using the said land for the purpose of stockpiling or processing extracted material and fly ash, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order, then this order shall cease to have effect.

18. It is declared that the development being the installation and use of a pre-coat plant by the First and Second Respondents on Lot 1 DP 1006375 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.

19. It is ordered that the First and Second Respondents remove the pre-coat plant from Lot 1 DP 1006375 and cease using the said land for the purpose of operating a pre-coat plant unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order then this order shall cease to have effect.

Use of Lot 5 DP 242210

20. A declaration that the development being the installation and use of a manufactured sand processing plant and two mobile crushing plants by the First and Second Respondents on Lot 5 DP 242210 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979.

21. It is ordered that the First and Second Respondents remove the manufactured sand processing plant and two mobile crushing plants from Lot 5 DP 242210 and cease using the said land for the manufacture of sand or the crushing of extracted material unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order, then this order shall cease to have effect.

Invalid variation of Environment Protection Licence No 1378 granted under the Protection of the Environment Operations Act 1997

22. It is declared that the purported variation made by the Third Respondent under s 58 of the Protection of the Environment Operations Act 1997 to Environment Protection Licence No 1378, being a licence currently held by the Second Respondent and formerly held by Rail Corporation New South Wales, by way of Notice of Variation No 1071585, dated 2 April 2007, is invalid and of no effect.

23. It is ordered that the First and Second Respondents be restrained from carrying out the scheduled activity the subject of Environment Protection Licence No 1378 (as varied) at any scale exceeding 500,000 tonnes per annum, unless and until authorised to do by an environment protection licence duly granted under the Protection of the Environment Operations Act 1997, save that the restraint shall be stayed for a period of three months from the date of this order.

Operations at and associated with the Martins Creek Quarry during stay period

24. Notwithstanding the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 or any extension of that stay period as may be allowed by further order made pursuant to Order 25, the Second Respondent, shall, within fourteen (14) days of these orders, conduct its operations at and associated with the Martins Creek Quarry in accordance with the amended Interim Environmental Management Plan (IEMP) annexed to this judgment (which is based on the draft that was Annexure 1 to the Respondents’ closing submissions (and Exhibit 17) in relation to which the Second Respondent undertook to operate). Operating in accordance with the annexed IEMP shall continue until such time as the State Significant Development Application (SSD Application) is determined in accordance with the Environmental Planning and Assessment Act 1979 and all required consents, approvals and licences have been granted.

Leave to apply in relation to the stay on orders

25. (a)   The First and Second Respondents have leave to apply to the Court to have extended the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, and 23.

(b)   An extension of the stay will not be granted unless the application seeking it is supported by affidavit setting out the basis for seeking the extension and the Court is satisfied that it is reasonable and proper in the circumstances to grant it. The affidavit, in particular, must:

1. demonstrate that the First and Second Respondents have taken all steps necessary, with due diligence, to facilitate the completion of the SSD Application process;

2. demonstrate that the First and Second Respondents have proceeded with expedition since the date of these Orders in their endeavours to secure all necessary consents, licences and associated approvals as are required for the Quarry, whether consequential to the SSD Application process or otherwise;

3. confirm that the First and Second Respondents have duly implemented and complied with the Amended IEMP, and will continue to do so, in accordance with Order 24 of the Court;

4. confirm that Dungog Shire Council has been advised of the SSD Application (so as to enable it being heard on the application); and

5. confirm that a reasonably visible notice advising of the SSD Application was placed in the local newspaper with the highest circulation within the district which includes the towns of Martins Creek and Paterson (so as to enable representatives of the community to be heard, with leave, on the application).

Costs

26. The First and Second Respondents shall pay the Applicant Council its costs in the proceedings, on the normal basis, as assessed or agreed, such costs to be paid within 60 days of these Orders.

Exhibits

27. Exhibits tendered to the Court during the proceedings by a party may be released to that party seven (7) days after the date of these orders, upon application to the Registry of this Court.

**********

Addendum made on 25 October 2018

896. On 25 October 2018 by consent of the parties the Court amended Orders (24) and (25) pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 as follows:

Operations at and associated with the Martins Creek Quarry during stay period

1. Notwithstanding the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 or any extension of that stay period as may be allowed by further order made pursuant to Order 25, the Second Respondent, shall, within fourteen (14) days of these orders, conduct its operations at and associated with the Martins Creek Quarry in accordance with the amended Interim Environmental Management Plan (IEMP) annexed to this judgment (which is based on the draft that was Annexure 1 to the Respondents’ closing submissions (and Exhibit 17) in relation to which the Second Respondent undertook to operate). Operating in accordance with the annexed IEMP shall continue until:

   (a) such time as the State Significant Development Application (SSD Application) is determined in accordance with the Environmental Planning and Assessment Act 1979 and all required consents, approvals and licences have been granted; or

   (b) the expiration of the three-month stay period specified in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 above, and, in the event of any extension(s) to that period granted by this Court pursuant to Order 25 below, the expiration of such extension(s).

Leave to apply in relation to the stay on orders

(25)     (a)    The First and Second Respondents have leave to apply to the Court to have extended the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, and 23. 

(b)     An extension of the stay will not be granted unless the application seeking it is supported by affidavit setting out the basis for seeking the extension and the Court is satisfied that it is reasonable and proper in the circumstances to grant it. The affidavit, in particular, must:

1. demonstrate that the First and Second Respondents have taken all steps necessary, with due diligence, to facilitate the completion of the SSD Application process;

2. demonstrate that the First and Second Respondents have proceeded with expedition since the date of these Orders in their endeavours to secure all necessary consents, licences and associated approvals as are required for the Quarry, whether consequential to the SSD Application process or otherwise; 

3. confirm that the First and Second Respondents have duly implemented and complied with the Amended IEMP, and will continue to do so, in accordance with Order 24 of the Court;

4. confirm that Dungog Shire Council has been advised of the application (so as to enable it being heard on the application); and

5. confirm that a reasonably visible notice advising of the application was placed in the local newspaper with the highest circulation within the district which includes the towns of Martins Creek and Paterson (so as to enable representatives of the community to be heard, with leave, on the application).

Addendum made on 26 October 2018

897. On 26 October 2018 by consent of the parties pursuant to r 36.15(2) of the Uniform Civil Procedure Rules 2005 the Court set aside Order (26) of the Court’s orders and made the following order in lieu of that order:

Costs

(26) The First and Second Respondents shall pay the Applicant Council its costs in the proceedings, on the normal basis, as assessed or agreed.

GLOSSARY OF DEFINED ABBREVIATIONS

Defined Term	Definition
1990 DA	Development application submitted by the State Rail Authority to Dungog Shire Council on 8 August 1990 which described the proposed development as “quarry for railway balast [sic]” and the location of the proposed development as “Lot No 5 + 6” of “D.P. 232210 [sic]”
1990 EIS	The environmental impact statement submitted with the 1990 DA
1991 Consent	Development consent granted in relation to the 1990 DA
Applicant Council	Dungog Shire Council
Class 2 development	Per cl 4(1) of Ordinance 105, development carried on by a person carrying on a public utility undertaking “expressly authorised under any…State Act”
DA	Development Application
Eastern Lands	Portion of the Quarry to the east of Station Street (Lot 1 Deposited Plan 1006375 and Lot 1 in Deposited Plan 204377)
EIS	Environmental impact statement
EPA	Environment Protection Authority, the Third Respondent
EPA Act	Environmental Planning and Assessment Act 1979
EPA Regulation	Environmental Planning and Assessment Regulation 1980
EPL	Environment protection licence
EPL 1378	Environment protection licence held by the Second Respondent for the scheduled activities of “crushing, grinding or separating works” and “extractive industries” at the Quarry.
February Minutes	The minutes of the ordinary meeting of the Applicant Council on 12 February 1991
February Resolution	A resolution made at the ordinary meeting of the Applicant Council on 12 February 1991 purportedly to grant development consent in relation to the 1990 DA
First Respondent	Hunter Industrial Rental Equipment Pty Ltd
IDO No 1	Interim Development Order No 1 – Shire of Dungog
IEMP	Interim Environmental Management Plan, Annexure C to this judgment
LEP 1990	Dungog Local Environmental Plan 1990
LEP 2006	Dungog Local Environmental Plan 2006
LEP 2014	Dungog Local Environmental Plan 2014
LEP No 1	Dungog Local Environmental Plan No 1
Lot 5	Lot 5 Deposited Plan 242210
Lot 6	Lot 6 Deposited Plan 242210
May Minutes	The minutes of the ordinary meeting of the Applicant Council on 14 May 1991
May Resolution	A resolution made at the ordinary meeting of the Applicant Council on 14 May 1991 to grant development consent in relation to the 1990 DA
Model Provisions 1980	Environmental Planning and Assessment Model Provisions 1980
Notice	Purported notice of determination of the 1990 DA, sent by the Applicant Council to the SRA on 7 March 1991
Ordinance 105	Ordinance 105 – Town and Country Planning (General Interim Development)
POEA Act	Protection of the Environment Administration Act 1991
POEO Act	Protection of the Environment Operations Act 1997
Quarry	The Martins Creek Quarry
RailCorp	Rail Corporation New South Wales, a successor agency of the State Rail Authority of New South Wales
RSA	Rail Services Australia
RTA	Roads and Traffic Authority
Second Respondent	Buttai Gravel Pty Ltd
SEPP 2007	State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
SPCC	State Pollution Control Commission
SRA	State Rail Authority of New South Wales
SSD	State Significant Development
SSD Application	State Significant Development application lodged by Buttai Gravel Pty Ltd for the Martins Creek Quarry Extension Project.
Third Respondent	Environment Protection Authority
Western Lands	Portion of the Quarry to the west of Station Street (Lots 5 and 6 Deposited Plan 242210)

Annexure A (1.54 MB, pdf)

Annexure B (73.5 KB, pdf)

ANNEXURE C

INTERIM ENVIRONMENTAL MANAGEMENT PLAN – MARTINS CREEK QUARRY

A: Definitions

In this document:

Buttai means Buttai Gravel Pty Ltd.

Council means Dungog Shire Council.

The Code of Conduct means the Code of Conduct – Martins creek Quarry (Truck & Dog, Ex-Bin & Sub-Contractors) Revision Number 02, dated 11 February 2015.

The Quarry means the Martins Creek Quarry, located at Station Street, Martins Creek, on Lots 5 & 6 DP242210, Lot 1 DP 204377, Lot 1 DP1006375 and Lot 42 DP815628.

The SSDA means State Significant Development Application SSD6612 for the Martins Creek Quarry Extension Project lodged on 27 September 2016.

B: Background

The purpose of this Plan is to describe the environmental management measures which Buttai has agreed to adopt in order to protect the environment and the amenity of neighbouring landowners and the residents of Paterson if the Court finds that the Quarry is currently operating without consent, or otherwise than in accordance with a consent, or in excess of any existing or continuing use right, or that the Quarry does not have an Environmental Protection Licence, pending determination of the SSDA (including any appeal).

This Plan has been prepared without prejudice to Buttai's claims in these proceedings that the Quarry is not limited as to the quantity or method of dispatch of product from the Quarry.

C: Interim Provisions

1.   No more than 650,000 tonnes of product will be dispatched from the Quarry by road in any twelve month period.

2.   No more than 130 laden trucks will be dispatched from the Quarry in one calendar day.

3.   No more than 30 laden trucks will be dispatched from the Quarry in any 1 hour period.

4.   The Quarry will not operate outside of the following hours:

a.   operations carried out on Lot 5 and Lot 6 DP 242210: 7:00 am - 5:00 pm Monday to Saturday, with no operations allowed on Sundays or public holidays;

b.   operations carried out on Lot 1 DP 1006375 and Lot 1 DP 204377 6am-6pm Monday to Saturday, with no operations allowed on Sundays or public holidays. It is permissible to operate outside these hours for activities like maintenance, provided such activities are not audible at the nearest or most affected residential receiver;

c.   train loading and dispatch: 6am to 6pm.

d. truck loading not to commence before 7am.

5.   Buttai may exceed the limits specified in paras [1]-[4] in response to a short-term emergency in respect to infrastructure, but only for the period and to the extent necessary to deal with the consequences of the emergency. For avoidance of doubt, any product dispatched pursuant to this paragraph is not to be counted towards the numerical limit specified in paras [1] and [2].

6.   Buttai will make compliance with the Code of Conduct a condition of carriage in relation to all trucks carrying product from the Quarry, will make all drivers aware of the Code of Conduct and will take enforcement action where drivers fail to comply with the Code of Conduct. Buttai will modify the Code of Conduct to limit trucks passing through Paterson before 6:45am.

7.   Buttai will require all trucks entering and leaving the Quarry to observe a reduced speed limit of 40km/hour through the town of Paterson as outlined in the Code of Conduct.

8.   Buttai will publicise a telephone number and email address for complaints, will investigate all complaints and seek to resolve them in a timely manner, and will maintain a record of complaints and the steps taken to investigate and resolve them. It will report to the complainant on its actions. It will make this information available to Council upon request.

9.   While this Plan is in force, there will be no change to the methods of extraction and processing used at the Quarry.

10.   While this Plan is in force, there will be no lateral expansion of the active Quarry pit, and no clearing of native vegetation (other than minor regrowth in previously disturbed areas) will be undertaken for the purpose of expanding the active Quarry pit. The Quarry pit may continue to expand vertically as required.

11.   All extraction, crushing, grinding and separating operations at Martins Creek Quarry will comply with Environmental Protection Licence 1378.

12.   This Plan may be varied by Buttai with the prior consent of Council. Council will not unreasonably refuse consent and will respond to Buttai's requests for variation in a timely manner.

13.   If a breach of this Plan is alleged, Buttai is to be informed of the breach and given 28 days to remedy it. If Council and Buttai remain in dispute, they are to agree on the appointment of a mediator and are to undertake mediation in good faith in order to resolve the dispute.

14.   This Plan comes into force on the date that orders are made by the Court, and continues in force:

a.   until discharged by the Court, or

b.   until consent is granted to the SSDA and Buttai commences to implement the consent, or

c. until final orders are made in these proceedings, whichever occurs first.

15.   If consent is granted to the SSDA, Buttai undertakes to use its best efforts to commence implementation of the consent within a reasonable time after:

a.   if Buttai accepts the conditions of consent, the grant of consent; or

b.   if Buttai or another party lodges an appeal in relation to the grant of consent, the making of final orders in the appeal.

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Amendments

26 October 2018 - Addendum of 25 October 2018 amending Orders (24) & (25) added.

Addendum of 26 October 2018 amending Order (26) added.

Decision last updated: 26 October 2018