Figtree Hill v Cleary Bros (No 2)

[2006] NSWLEC 63

Land and Environment Court

of New South Wales

CITATION:

Figtree Hill v Cleary Bros and others (No 2) [2006] NSWLEC 63

PARTIES:

APPLICANT
Figtree Hill Pty Limited

FIRST RESPONDENT
Cleary Bros (Bombo) Pty Limited

SECOND RESPONDENT
Minister for Infrastructure and Planning

FILE NUMBER(S):

10639 of 2005

CORAM:

Hussey C - Brown C

KEY ISSUES:

Development Application :- the extension to an existing hard rock quarry - written submissions on conditions

DATES OF HEARING:

Written submissions 27/01/06

 
DATE OF JUDGMENT: 

02/21/2006

LEGAL REPRESENTATIVES:

APPLICANT
Ms J Reid, solicitor
SOLICITORS
Pike, Pike and Fenwick

FIRST RESPONDENT
Ms A Penklis, solicitor
SOLICITORS
Sparke Helmore

SECOND RESPONDENT
No submissions

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C with Brown C

21 February 2006

10639 of 2005 Figtree Hill Pty Limited (Applicant) v


Cleary Bros (Bombo) Pty Limited (First Respondent) and

Minister for Infrastructure and Planning (Second Respondent)
JUDGMENT

1 COMMISSIONERS: The appeal is made pursuant to s 98 of the Environmental Planning and Assessment Act 1979 (the EPA Act) where an objector who is dissatisfied with the determination of a consent authority to a development application for designated development may appeal to the Court.

2 The appeal relates to the granting of development consent by the then, Minister for Infrastructure and Planning (the Minister) of DA No. 466-11-2003 on 27 May 2005 for the extension to an existing hard rock quarry at Croom, approximately 2.5 kilometres east of Albion Park and 4 kilometres west of Shellharbour (the site).

3 The appeal was heard on 8, 9, and 12 December 2005. On 13 January 2006 the findings on the merits were provided to the parties (Figtree Hill v Cleary Bros and others [2006] NSWLEC 9) and required the parties to amend the conditions based on the findings in the judgement. The Directions (at pars 94 and 95) stated:

The conditions of consent require amendment to those provided to the Court based on the findings in the preceding paragraphs and the need for further discussions between the parties. We propose to make directions for the parties to confer and produce amended conditions of consent within 14 days based on the findings in the judgment .i.e., by 27 January 2006. If the amended conditions are not received by this date the Court will make final Orders without further reference to the parties.
Leave is also granted for the parties to restore the matter on 48 hours notice if no agreement can be reached on the conditions. Any leave to restore the matter must be within a time to allow final Orders to be made immediately after 27 January 2006.

4 Notwithstanding the Direction to confer, it appears that little if any discussion has taken place between the parties so we have addressed the areas still in dispute based on the submissions and evidence provided by the parties.

Schedule 2 Definitions

5 We accept the amendment to the definition of "Fig Tree Hill Land" proposed by the Applicant as it is less ambiguous and reflects the findings in the judgement.

Schedule 4 - Condition 2 :

6 We accept the amendment proposed by the Applicant as the total requirements for the buffer on the northern boundary are more appropriately contained within the condition rather than as a separate note to the condition.

Schedule 4 - Condition 14(d)(iv)

7 This condition relates to the Blast Management Plan and the Respondents seek to limit the operation of this plan to the "rural use" of land whereas the Applicant submits that the condition should relate to the land in general. We accept the Applicants submission on this condition as it provides appropriate protection for the future use of the Applicants land. We however, accept the Respondents submission that there should be "generally" in compliance with the Blast Management Plan as this provides a limited amount of flexibility in its operation.

Schedule 4 - Condition 20

8 This condition relates to management and monitoring of air quality and the Respondents seek to retain the word "generally" when considering the Dust Management Plan. For the reasons mentioned in the preceding paragraph we accept this submission.

Schedule 4 - Conditions 46 and 47

9 These conditions relate to site access and the previous findings specifically required discussion between parties to addresses the conflict. Despite this direction no discussion appears to have taken place. Based on the site view, the evidence and submissions we accept the Applicants submission. In our view Dunsters Lane is inappropriate for traffic associated with the quarry (except in emergency) because of its construction, alignment and proximity to dwellings on the Fig Tree Hill Land.

Schedule 4 – Condition 52

10 This condition relates to the requirement for dilapidation surveys. While not raised by either party, the condition requires the owners of the Fig Tree Hill Land to supply to the Second Respondent three nominees to undertake this work within a "reasonable" period of time. Due to the uncertainty associated with this requirement we have nominated that the nominees are to be provided to the Second Respondent within three months.

Schedule 4 – Condition 56

11 This condition requires that the trees required by the landscaping plans to be replaced if they die. The condition required these trees to be replaced within a " reasonable" time whereas the Applicant requires this to be more specific and nominates a period of 28 days. We accept the Applicants submission.

Schedule 5 - Environmental Management, Monitoring, auditing and Reporting Condition 8(e)

12 The inclusion of this condition is consistent with the findings in par 88 of the Courts previous judgement.

13 The Orders of the Court are:

1. The appeal is dismissed.
2. The extension to an existing hard rock quarry at Lot 1 in DP 858245 and Lot 23 in DP 1039967, Dunsters Lane, Croom, is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits C, L, 3 and 101 .

_____________ _____________

R R Hussey G T Brown
Commissioner of the Court Commissioner of the Court