Greenwood v Warringah Council

[2012] NSWLEC 152

Land and Environment Court

New South Wales

Case Title:	Greenwood v Warringah Council
Medium Neutral Citation:	[2012] NSWLEC 152
Hearing Date(s):	31 October 2011; 3 November 2011
Decision Date:	09 July 2012
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	1. In respect of Matter No 40404 of 2011, the parties are directed to confer on: (a) orders reflecting the findings and reasons in this judgment, and (b) the question of the costs of the proceedings. 2. In respect of Matter No 10405 of 2011, the order made in Chambers on 4 November 2011, adjourning the proceedings to a date seven days after delivery of this judgment, is hereby vacated. 3. Both matters are to be listed together before me for mention, the making of any consent orders, and for any necessary directions for their further conduct, at 4pm Monday 6 August 2012.
Catchwords:	DEVELOPMENT MODIFICATION: Validity of conditions imposed - major condition imposed without application by, or consultation with, the applicant or his successor in title - construction principles - procedural fairness - existing use rights - abatement on death of a party - findings made on all main issues - matter stood over for (1) final orders, (2) disposition of related Class 1 proceedings, and (3) determination of costs.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulation 1994 Interpretation Act 1987 Local Government Act 1919 Local Government (Amendment) Act 1951 Mining Act 1992 Probate and Administration Act 1898 State Environmental Planning Policy No 37 - Continued Mines and Extractive Industries Supreme Court Rules 1970 Waste Disposal Act 1970 Wills, Probate and Administration (Trustee Companies) Amendment Act 1985
Cases Cited:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 187 Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382 Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243; (2002) 126 LGERA 233 Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 398 Clark and Davis v Wollongong City Council [2008] NSWLEC 110 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Crichton v City of Moorabbin [1992] 2 VR 372 Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350; (1974) 30 LGRA 237 Fokas v Kogarah RSL Club [2012] NSWLEC 136 Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; (2008) 160 LGERA 50 Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408 Hunter Wine Services Pty Ltd v Muswellbrook Shire Council [2008] NSWLEC 1390 Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227 Kennedy v New South Wales Minister for Planning [2010] NSWLEC 240 Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72; (1970) 68 LGR 301 King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 45; (2010) 174 LGERA 67 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Panagopoulos v Willoughby City Council (1992) 78 LGERA 270 Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170 Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148 Spurling v Development Underwriting (Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19 Stephenson v Human Rights & Equal Opportunity Commissioner (1996) 68 FCR 290 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245 Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Woolworths Ltd v Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 350
Texts Cited:	Judicial Review of Administrative Action, 4th ed, 2009
Category:	Principal judgment
Parties:	Scott Robert Greenwood (Applicant) Warringah Council (Respondent)
Representation
- Counsel:	Mr C Burgess (Applicant) Mr I Hemmings (Respondent)
- Solicitors:	Michael Flaherty Solicitors (Applicant) Storey & Gough (Respondent)
File number(s):	40404 of 2011 & 10405 of 2011
Publication Restriction:

JUDGMENT

CONTENTS Paragraph

Introduction ....................................................................................................... 1
The Greenwoods, the Land, and the Business ............................................ 6
The Respondent and its case ........................................................................ 15
Disposition of the proceedings ..................................................................... 18
A Chronology of Relevant Events ................................................................. 25
The Greenwood Operations and their Regulation 1951-1978 ...................... 25
Council reassesses the Greenwood operation in 1978 ................................ 34
The Lands Department adopts Council's preferred position ......................... 43
The Mines Department also reviews its position ........................................... 47
Clifford makes a DA, but consent was not required ...................................... 49
The LEP commences in 1985, and Robert takes charge in 1986 ................. 54
Robert makes a DA ....................................................................................... 61
Robert is granted his 1987 consent (87/455) ................................................ 73
Robert seeks a 1993 modification of his 1987 consent ................................. 79
Robert dies on 22 October 1993, and Scott takes over the operation .......... 88
Scott makes his own DA in 1994 ................................................................ 100
Probate of Robert's will is granted, but not to Scott .....................................104
In October 1994, Council assesses and grants Robert's Modification
Application, and imposes a sunset clause on the 1987 consent ...............105
Council notified the Modification Approval, including the Sunset Clause ...110
In November 1994, Council approves Scott's DA .......................................113
Scott learns in 2009 of the 1994 imposition of the 2003 sunset clause .......115
Council moves to close down the operation, and Scott seeks to
regularise it ............................................................................................... 123
Scott's addresses ....................................................................................... 128
These Proceedings ...................................................................................... 129
Issue 1/Ground 1 - Power to impose the Sunset Clause ........................... 135
Issue 2/Ground 2 - Denial of Procedural Fairness ..................................... 138
Issue 3/Ground 3 - Failure to give Scott notice of the modification ............140
Issue 4/Ground 4 - Abatement of the Modification Application .................. 143
Issues 5 and 6 - Construction of the 1987 Consent ................................... 145
Issue 7 - the Existing Use argument .......................................................... 147
Relevant Statutory Provisions ..................................................................... 152
The Planning Regime at the relevant time .................................................. 152
Interpretation Act ......................................................................................... 160
The Administration of Robert's estate ......................................................... 162
Consideration ................................................................................................. 165
The Modification Power ................................................................................166
Procedural Fairness .....................................................................................181
Notification of the Decision .......................................................................... 194
Abatement ................................................................................................... 204
Construction issues ..................................................................................... 212
Conclusion .......................................................................................................218

Introduction

1. These Class 4 proceedings (11/40404), and related Class 1 proceedings (11/10405), concern the use of land, and the conduct of a business on it, by the applicant in these proceedings, Scott Robert Greenwood ("Scott").

2. Scott is the present occupier of the premises at 9994 (or 450) Mona Vale Road, St Ives (also variously referred to as Terrey Hills and Belrose), and has conducted a business there on a full-time basis since about November 1993, known as "The Greenwood Landfill and Waste Recovery Facility" (Scott, par 5). Locally, the site is also known as "Greenwood's Quarry".

3. Earnings from the business are Scott's primary source of income, upon which he relies to support himself, his wife, and their four children.

4. The proceedings arise from Scott's discovery, at the end of 2009, that the development consent ('DC') upon which he had primarily relied, in the belief that it was not time-limited, expired on 1 January 2003, pursuant to a modification, of which he had no notice. The delay in commencement of these proceedings cannot be criticised in all the complex circumstances of the case.

5. Clearly that modification and the consequent expiry of the consent constitute a severe blow to Scott's undertaking on the subject land. The respondent Council having refused Scott's most recent development application ('DA') seeking to mitigate such damage, that decision is challenged in the Class 1 proceedings, and he also seeks, in these Class 4 proceedings, a series of declarations.

The Greenwoods, the Land, and the Business

1. Prior to November 1993, Scott had worked full-time, from January 1986, for his father Robert Clifford Greenwood (herein "Robert", but sometimes known as "Bob"). The subject land was occupied, and a business was conducted upon it, until 1993, by Robert, and before that, from 1956, by his grandfather, Clifford Bulmer Greenwood ("Clifford"). Robert would appear to have effectively taken over from Clifford as the major operator of the business from around 1986.

2. The nature of the business has changed in focus over the years, and, after Robert died in a workplace accident on the premises on 22 October 1993, Scott assumed responsibility for the conduct of the business, at that time a waste disposal, recycling and extractive business.

3. Apart from appropriate arrangements for land tenure and exploitation of minerals on or under the land, an operation of this type requires DC, and, usually, other environmental etc. approvals. It now has the benefit of Environmental Protection Licence ('EPL') 4669, currently permitting "waste disposal (application to land)", "recovery of general waste", and "waste storage" on the subject land.

4. The majority of "waste" now received at the premises is building and demolition waste, which is then screened for recyclable material such as timber, steel and brickwork. The materials recovered are stockpiled temporarily before removal off site for resale, the remaining inert waste is used for landfill or restoration in shale quarries. There is established infrastructure on the land, and no putrescible waste is received. That which is not identified and screened as recyclable is inert waste, which is then stockpiled for landfill, in shale quarries on the land.

5. The history preceding the litigation is aptly described in Scott's primary submissions (par 4) as "somewhat extraordinary". It is outlined in the affidavit of Council's development assessment officer, town planner Tony Collier, and in the Council's bundle of documents (Exhibit C1), which he verified. There was some dispute between the parties as to what reliance the court should place on some of the historic material contained in the bundle, but no objection to particular materials was pressed.

6. The subject site is an area of Crown land, comprising approximately 7.5ha (see title search results at Exhibit C1, tab 1). It can be also described by reference to Permissive Occupancy 1978/5 ("PO" - tab 6), and/or by reference to its inclusion of the areas of land covered by parts or all of mining or mineral leases ('ML') numbered ML 46, 47 and 52 (Exhibit C1, tabs 2, 4, and 5; Scott, tab 1, fol 008, and diagrams at Scott, tab 1 fol 040, and at tab 2, fol 045).

7. Any conceptual difference there may be between a mineral lease and a mining lease is not material to the present matter, but it needs to be recalled that a mineral/mining "lease" is not really a lease (as in a lease of land) at all, but an authority to mine/prospect. In any event, the configuration of the three MLs is clearly shown on the plan in tab 6. As Scott says (par 4), the 7.5ha also includes "natural bushland, revegetated (sic), land-fill, excavated and stockpile areas".

8. From 1977 until his death in 1993, Robert held PO 1978/5, issued to C B Greenwood Pty Ltd, of 86 Myoora Road, Terrey Hills, in respect of the premises (Scott, tab 2). It commenced on 1 August 1977, nominated the land covered as the land "within mineral lease 5469 (including ML 46)", and its purpose was stated to be "removal of silica, sandstone, filling and restoration". The site plan included in the PO (fol 045) nominated "portion ML 46 mineral lease 5469" as held by CB Greenwood Pty Ltd, "portion ML 47 mineral lease 5624" as held by "Clifford Greenwood", and, "portion ML 52 mining purposes lease 1382" as held by "Clifford Bulmer Greenwood". No holder was identified for the nearby, but not contiguous, portion ML 51.

9. As the applicant in these proceedings, Scott relied primarily on his comprehensive affidavit, sworn 2 August 2001, its attached documents, a "Statement of Reasons" (Exhibit G1), prepared on Council's behalf, at the direction of Pepper J, and the comprehensive submissions of his counsel, Mr Chris Burgess.

The Respondent and its case

1. The respondent Council is the relevant consent authority, within the meaning of the Environmental Planning and Assessment Act 1979 ('EPA Act'), for any application for DC involving the land and premises, or any application to modify any such consent. Apart from Collier's affidavit and Exhibit C1, Council also relied upon an affidavit by its paralegal, Elizabeth Caruso, some additional Council records from 1990 (Exhibit C2), a bundle of planning instruments and related documents (Exhibit C3), and comprehensive submissions made by its counsel, Mr Ian Hemmings.

2. Caruso deposed to a detailed search of Council's files and records which identified only the relevant consents - one in 1987 (87/455), a modification of that in 1994, and a second consent, granted to Scott in 1994 (94/524). (Collier deposed in similar terms).

3. Council contends that the carrying out of development for the purposes of an extractive industry, storage, and recycling of materials, other than sandstone, and waste disposal, on any part of the premises, other than ML 47 is unlawful, and that the carrying out of development for the purposes of waste disposal is unlawful anyway, even on the area of ML 47.

Disposition of the proceedings

1. Scott's summons commencing these Class 4 proceedings was amended, by consent, late on the first day of the hearing (T31.10.11 p55, L46ff), and I will turn to it in due course (at [130] below).

2. However, the thrust of the amendments to the summons became a matter of some contention on the second day (T3.11.11 p38ff).

3. The Amended Points of Claim ('APOC'), filed in these proceedings on 4 August 2011, and the Points of Defence ('POD'), filed on 5 September 2011, remained unchanged on amendment of the summons.

4. Council has not pleaded that the court should exercise its discretion to decline relief.

5. However, as some of the prayers for relief are in the alternative, and some are predicated on others, the parties agreed that this judgment should make findings, and give reasons, but not arrive at final orders (see T3.11.11, p39, LL35-46).

6. The related Class 1 proceedings (11/10405) were adjourned, on 4 November 2011, to a date seven days after the delivery of this judgment.

7. I turn, firstly, to set out in more detail than is contained in the APOC and POD, the "somewhat extraordinary" history of the matter, as revealed to the court by the evidence.

A Chronology of Relevant Events

The Greenwood Operations and their Regulation 1951-1978

1. On 27 June 1951, the Local Government (Amendment) Act 1951 was gazetted and the County of Cumberland Planning Scheme ("the Cumberland Scheme") was introduced (Exhibit C3, tab 2).

2. On 11 May 1956, the Cumberland County Council ('CCC') gave its approval to the extraction of Pottery Clay and Clay Shale from land the subject of Mineral Lease Application ("MLA") 443 (formerly 419), under the Cumberland Scheme. (Notification 15 May 1956 in Exhibit C1, tab 3, was addressed to Clifford at 21 Carbeen Ave, St Ives. MLA 443 is depicted in tab 4). The Scheme identified the subject property as located within the "rural area" zone, and makes clear (at p127, item 10, column IV) that, in the "rural area", extractive industries required consent. For "existing use" purposes, Council accepts the 1956 CCC approval as a "consent", referring to it as an "assumed consent", even though a formal document cannot be found (see T31.10.11, pp71-72).

3. ML 5469 was granted over ML 46, on 2 September 1955 (a plan of portion ML 46 is at Exhibit C1, tab 2, fol 4). It was renewed in 1975 to 2 (or 20) September 1980. On 25 July 1958, ML 5624 was issued over ML 47 for 20 years. On 10 January 1969, ML 1382 was issued over ML 52 (see tab 5) for 20 years. (See, generally, also the notes at tab 12).

4. On 8 March 1974, the relevant planning regime became Warringah Interim Development Order No 51 ('IDO' - Exhibit C3, tab 4). Council agrees (T3.11.11, p16) that ss 342U and 342Y of the Local Government Act 1919 (see Part XIIA in Exhibit C3, tab 1) operated to permit the continuation of the approved use - which Council argues in these proceedings is limited to the area of ML 47 only - beyond that change of planning regime, until the EPA Act came into force in 1979-80, when continuation became a question of "existing use" rights under that Act.

5. On 14 September 1977, Council received a letter from the Land Board Office dated 9 September 1977 (Exhibit C1, tab 6), regarding an application by C B Greenwood Pty Ltd to remove silica and sandstone by way of a PO over MLs 46, 47 and 52. Council was invited to make a submission. Council replied on 15 September 1977 (tab 7), advising the Department of Lands that the land was subject to IDO 51 "and as such, the proposed removal of silica and sandstone from the land is prohibited by the planning legislation".

6. The Land Board Office wrote again on 19 October 1977 (tab 8, fol 13), asking Council to reconsider its objections. The letter continued:

   "The applicant had been removing silica from the area subject of the application under Mining Lease 5469. This lease expired on 2nd September 1975, and was subsequently renewed for a further five (5) years. However, silica was excluded from the lease as about this time it was deproclaimed as a Mineral under the Mining Act.

   Due to an oversight, C.B. Greenwood Pty. Ltd. continued to pay royalty (and the Mines Department continued to accept same) in respect of all removals of silica effected after the date of deproclamation as a mineral. The matter was only discovered recently and C.B. Greenwood Pty. Ltd., was requested to submit an application to authorise its removal.

   It is noted that the applicant, in addition to holding Mining Lease 5469 over Mining Lease Portion 46, also holds Mining Leases over Mining Lease Portions 47 and 52.

   In view of the applicant's proposal to confine removals within the above Mining Lease Portions, would Council reconsider its objections to granting a Permissive Occupancy".

1. Council replied on 3 November 1977 (tab 9, fol 14), pointing out that one of the major purposes of the IDO was to prohibit extractive industries, indeed any activities which mar the landscape. It was still unable to concur in the proposed PO. Council complained that its views had not been sought when the ML was renewed for five years in 1975, "even though the continuation of extractive activities was already clearly prohibited at that time".

2. The Land Board Office wrote again to Council on 21 March 1978 (tab 10, fol 15), indicating that, in its view, the quarry operation was an "existing use" pre-dating the Cumberland Scheme. Council responded on 29 May 1978 (tab 11, fol 19), saying that it required more information before being satisfied of existing use rights. Lands responded informally (tab 12).

3. The Council file note of 29 June 1978 (tab 13) noted that existing use rights under IDO 51 applied only to dwelling houses. A handwritten endorsement (on fol 22) suggests that the subject use commenced in about 1955. The application for the PO had been first made to Council on 9 September 1977. The IDO prohibition of the Greenwood use applied from 8 March 1974. The officers' recommendation was that Council point out the illegality of ML 46 (particularly extensions), and submit that ML 47 could not be renewed. ML 5624 over ML 47 expired on 25 July 1978. ML 46 was to run to 2 September 1980, and ML 52 to 10 January 1989 (tab 16).

Council reassesses the Greenwood operation in 1978

1. Council officers inspected the subject site on 11 July 1978 (tab 15). They spoke to "Mr Greenwood" (presumably Clifford), and observed an extensive extractive industry supplying 15,000-20,000 tonnes per year of brick clay to the State Brickworks. He also extracted silica and sandstone, much of it going to the then Main Roads Department for work on Mona Vale Road. Council's aerial photographic records show a substantial quarry in 1965, but the 1956 photograph appeared to show no work (see also fol 50), consistent with the first ML having been granted in 1955. Mr Greenwood was relying upon the CCC letter of 15 May 1956, but no-one (including, later, the Planning and Environment Commission - 'PEC') could trace a formal consent foreshadowed in that letter (see tab 15, fol 24).

2. Council wrote a lengthy and important letter to the Land Board Office on 27 July 1978 (tab 17, fols 26-28). Council had received much cooperation from "Mr Greenwood", who had shown Council officers relevant parts of his file. Council had never given any town planning consent under either the Cumberland Scheme or the Warringah IDO for any extractive industry on any part of the area. It had never agreed to any MLs, and, in fact, was opposed to the Greenwood operation.

3. Council had advised the Department of Mines and the State Planning Authority, on 8 April 1968, and again on 2 December 1968, that it opposed an extension of the terms of the leases, and any approval to increase the size of the quarrying operations (see fol 26). It sought cooperation in ensuring that the area was progressively restored until operations ceased. Council's objection was mainly based upon unsatisfactory restoration to date, and the then hazardous location of the access point on Mona Vale Road used by heavy vehicles. However, as Council noted, the Mines Department had "nevertheless" renewed ML 52 for 20 years from 10 January 1969.

4. Notwithstanding the shortcomings of the documentary evidence, Council (fol 27) was "prepared to acknowledge" the CCC letter of 15 May 1956 ([26] above) "as a planning consent for the area covered by Mineral Lease Application 443", which, Council said, "covered the same area as ML 47 only".

5. The Council letter of 27 July 1978 noted (fol 27): "as it appears that extractive industry was taking place within Mining Lease 47 at 8th March 1974 (the date of gazettal of Interim Development Order No.51 which now controls the land) Council acknowledges that extractive industry is an 'existing use' within the meaning of Part XIIA of the Local Government Act". (Part XIIA is in Exhibit C3, tab 1).

6. The letter went on to note that no part of the extractive industry within ML 46 or the works within ML 52 had been given planning consent by Council. They were, therefore, illegal uses under IDO 51, and should be discontinued. It was understood that ML 52 covered only ancillary purposes such as roads and buildings. Excavation within that area was not permitted, and extraction was to cease. (Item (c) on fol 27).

7. IDO 51 prohibited the Council from granting planning consent and, therefore, the situation with MLs 46 and 52 and other areas could not now be rectified by the granting of a planning consent. The PEC was taking a strong stand against extractive industries. (Item (d) on fol 27).

8. Council's conclusion was that, contrary to the Department's letter of 21 March 1978 ([32] above), the quarry operation was an existing use only over ML 47, and all operations on the other areas of the land were illegal. Aerial photography clearly showed that no part of the extractive industry preceded the introduction of the Cumberland Scheme (in 1951). Council, therefore, objected to the proposed issue of a PO over a very large area, including all three MLs, and additional land. Continued extraction of material from areas outside ML 47 constituted a breach of the Local Government Act.

9. Council, therefore, agreed (fol 28) to a PO not exceeding the area of ML 47 (which had expired on 25 July 1978 and was extended in 1981 for a further 21 years to 2002 - see tab 28; T3.11.11, p17, LL15-26; and [52] below). Council would pursue "an early cessation of the illegal land use" outside ML 47, and pursue also restoration of the area to a state satisfactory to the Council.

The Lands Department adopts Council's preferred position

1. On 28 August 1978 (tab 18), the Land Board Office agreed to amend its proposal in accordance with the Council's position. The PO would be varied to "removal of silica, sandstone and filling and restoration of the site"; an additional condition would be imposed confining the winning of extractive material to the area of ML 47; and the balance of the occupancy would be for restoration only.

2. On 12 September 1978 (tab 19), Council signified to the Land Board Office that it had no objections to the modified PO, nor to conditions being attached to it regarding areas outside ML 47.

3. On 6 December 1978, the Council received from the Department of Mines (tab 20) notification that a MLA (No 17), lodged by "C Greenwood of 14 Hopkins Place, Turramurra Nth", had been lodged with the Department, for the mining of clay shale and silica by means of open cut on ML 47. The area of ML 47 is shown (at fol 32) as 2.22ha. On 1 February 1979, Council expressed no opposition to MLA 17 (tab 21), but nominated some conditions to be included in the mining lease document, including a requirement (fol 34) for progressive restoration.

4. On 9 March 1979, CB Greenwood Pty Ltd was granted, by the New South Wales Department of Lands, "PO 1978/5", for "removal of silica sandstone, filling and restoration", and not for the sale of imported material. It was signed by Robert, as tenant, on 19 March 1979, but was stated to have incurred rent from 1 August 1977. (See respondent's chronology, item 4; Exhibit C1, tab 30, fol 95; and Scott, tab 2).

The Mines Department also reviews its position

1. On 16 July 1979, the Department of Mineral Resources and Development wrote to Clifford at 14 Hopkins Place, Turramurra North (Exhibit C1, tab 22), re MLA 17, telling him to make an application for DC, and giving him notice of the types of conditions that would be imposed if a mining lease were eventually granted. The conditions dealt with rehabilitation, etc, and maintenance of timber (fols 36-49).

2. An undated Council file note (tab 23) indicates that aerial photographs dating as far back as 1946 showed no sign of quarrying or mining on the area covered by MLs 46, 47 and 52. Mining appeared to have commenced in the 1961 photographs and appeared to extend outside the area of ML 47. Some clearing work had commenced on ML 46. 1965 photographs showed an escalation of activities, particularly on ML 46, but also on ML 52. The 1972 photographs show expansion of workings on ML 47, deepening in the vicinity of ML 46, and deep cuttings in ML 52. 1977 photographs show areas of restoration, mainly in ML 52. There was again an increase in ML 47 "overall, the scale of work appears to have increased".

Clifford makes a DA, but consent was not required

1. On 2 August 1979, Clifford lodged a DA (tab 24) for consent to continue "mining shales, sandstone & restoration under Lands Dept & Mines Dept supervision" (tab 24, fols 51ff). Clifford gave 14 Hopkins Place as his address, and identified the 2.2ha of ML 47 as the subject area. An attached document was on C B Greenwood Pty Ltd letterhead with the address of 86 Myoora Road, Terry Hills (sic). Existing uses of land or building before and after 6 June 1963 was said to be for mining, and the application was for consent to the continuation of the nominated activities. Clifford indicated that he had held ML 46 and 52 for approximately 35 years (fol 56).

2. On 7 August 1979, Council received from the Department of Mineral Resources and Development a letter dated 19 July 1979 (tab 25) concerning MLA 17. The Department was going to recommend granting of a ML upon the grant of any DC. Some of Council's proposed conditions for the ML were seen as not viable (there are references, in the Department's letter, to a Council letter to the Department, dated 1 February 1979, but it is not among the evidence).

3. On 9 October 1979, the Council wrote to both C B Greenwood Pty Ltd and to the Department of Mineral Resources and Development (tab 26), in respect of MLA 17 (formerly ML 47). As there were existing use rights, a DC was not required. However, Council wanted restoration of all areas, including ML 46 and 52, which "were quarried illegally in the past" (tab 26, fols 74-75).

4. On 24 July 1980, the Department of Mineral Resources advised Clifford, at Hopkins Place (tab 27), that it proposed to grant MLA 17 for a term of 21 years, for the mining of clay shale. MLA 17 and ML 909 were issued in this respect on 30 January 1981 (gazettal and other documents are at tab 28). The grantee was C B Greenwood Pty Ltd, and the effect was to extend ML 47 to 2002.

5. On 30 January 1981, ML 909, for the mining of clay shale, was gazetted in favour of CB Greenwood Pty Ltd for a term of 1 year (tab 28).

The LEP commences in 1985, and Robert takes charge in 1986

1. On 11 October 1985, Warringah Local Environmental Plan ('LEP') 1985 was gazetted, replacing the IDO. The plan associated with the LEP (Exhibit C3, tab 5) shows the subject land zoned 1(a1) (Non-urban A1). No development was allowed without consent, and much development was specifically prohibited (p 5364).

2. It would appear that around that time, or early in 1986, Robert took charge of the operation and Scott commenced working in the business (Scott, par 9).

3. On 28 January 1987, the Crown Lands Office wrote to Robert at Myoora Road (tab 30). A recent inspection of his operation had revealed that "material was being imported, stockpiled, re-cycled and sold", and the office noted that "the purpose of your Occupancy is for removal of silica sandstone, filling and restoration. It does not cater for the sale of imported material". If he wished to continue with that operation, the terms of his occupancy would need to be amended, and suitable conditions attached, and he would be required to obtain Council's consent. In view of the current use of the site and the intending change of purpose of the occupancy to include stockpiling and resale, the rent, royalty and security arrangements were altered, effective 1 May 1987. He was directed to progressively restore the site in accordance with the plan.

4. On 4 February 1987, Robert, on R Greenwood Contracting letterhead, and following discussions with planning staff at the Council, wrote to the Council, "at the direction of the Crown Lands Dept", to seek consent to extend the use of PO 1978/5 Metropolitan, approved by the Council in 1978, to include stockpiling, recycling and resale of imported material, namely ripped sandstone (tab 29, fol 93). He noted that "at present whilst taking in hard core fill to restore worked out quarry areas we have been receiving more and more sandstone material similar to that which we are currently producing under the terms of PO 1978/5". He, therefore, sought permission to stockpile this material for resale on his present stockpile site, usually a maximum of 10,000 cubic metres at any one time. "The current lease is not up for renewal until September 2002", he said.

5. On 12 February 1987, Council received from the Crown Lands Office a copy of its letter to Robert, dated 28 January 1987 (tab 30 and [56] above).

6. As Mr Hemmings put it (T3.11.11, p17, LL36-49), the regulators had become aware, by early 1987, that Robert was operating beyond what was "originally anticipated or originally authorised, and told him to do something about it", which he did. (Mr Hemmings says that this intervention and response are relevant to the construction of condition 8 imposed on the DC granted later in 1987 - see [75] below).

7. On 20 March 1987, Council wrote to Robert at Myoora Road (tab 31, fol 97), in reply to his letter of 4 February 1987. Council referred back to its letter to the Land Board Office on 27 July 1978 (tab 17), in which no objection was made to the winning of extracted material in the area of ML 47. Council advised that the development as proposed within ML 47 would be permissible with consent under the existing use provisions of the EPA Act, but Council may not support the proposal as it constituted an intensification of the use. Council required him to submit a formal DA so that his proposal could be fully evaluated.

Robert makes a DA

1. On 3 April 1987, Council received the DA it had required of Robert (tab 32 - DA 1987/182). It bore date "1.4.87", and gave his postal address as 86 Myoora Road. In describing the proposed development, he referred back to the contents of his letter of 4 February 1987 and said (fol 99) that he would be "using only the same area as at present". Granting the application would speed up the restoration and rehabilitation of the area "when lease expires". He went on to say (fol 100) that no expansion of the area was sought, and no expansion of business was anticipated. The application was said to have "full blessing" of the Lands Department, Mineral Resources Department, and the Metropolitan Waste Disposal Authority, and the method of operation and restoration had been approved by the Soil Conservation Service. The attached plan (fol 102) indicated works of stabilisation, silt trapping, etc. outside ML 47 in the 'V'-shaped area. Stockpiles would be within ML 47. (Other familiar plans appear at fols 103 and 104).

2. A preliminary assessment of the application on 15 April 1987 (fol 105) indicated that additional information was required. Also on 15 April 1987, Council received a letter from the Lands Office, dated 8 April 1987 (tab 34). Lands officers had inspected the operation, and noted use of the site for "importation, stockpiling, recycling and sale". The letter said, "... whilst this Office has no objections to amending the Occupancy to include the additional uses, Council's consent to the extra operational activity will be required". Council was asked to notify the office the outcome of Robert's DA.

3. On 30 April 1987, Robert wrote to Council Officer "Christine Wright," because he was concerned that she did not fully understand what he was proposing. He described the then current operation as excavation of sandstone, loading it onto trucks, and transporting it to stockpile sites adjacent to the screen. He was asking for permission to add to the existing stockpile similar suitable material excavated elsewhere and brought to the property to be tipped. The operation would be otherwise unchanged, and the importation of material "will only be on a when and if available basis", and would involve material excavated in close proximity to the lease, mainly for swimming pool construction.

4. On 6 May 1987, Council wrote to both the State Pollution Control Commission ('SPCC') and the Department of Mineral Resources (tab 36) seeking their concurrence to extension of the use of the existing PO, in accordance with the DA.

5. Also on 6 May 1987, Council wrote to Robert (tab 37), pointing out that his application involved "designated development", and that extension of extractive industries may require submission of an environmental impact statement ('EIS'). It sought detailed information.

6. Robert replied on 13 May 1987 (tab 38), providing/confirming information which he indicated had already been supplied in his discussions with Council officers.

7. On 26 May 1987, SPCC responded (tab 39, fol 118), concurring without conditions.

8. On 11 June 1987 (tab 40), the Soil Conservation Service expressed no objection to any aspect of the DA. The Service indicated it had had close liaison with "Mr Greenwood", and the Department of Lands, regarding the rehabilitation of the area.

9. In file notes dated 17 June 1987 (tab 41), Council officers indicated that the proposal was "minor in effect", largely due to little increase in truck movements, and could be treated as not "significant" under the designated development provisions. An EIS would not be required. One of the officers wrote that the consent ought be "time limited", to provide for an assessment of truck movements after a period such as one year, before a permanent consent be granted, as the site had direct access to the main road.

10. As at August 1987, Council would appear to have been considering establishing an environmental protection 7(a) zone covering some of the Greenwood Quarry area (file note in tab 42), and Council's letter to Robert, dated 14 October 1987 (tab 43), indicated active consideration of a draft LEP and DCP. Before determining his DA, Council required an adequate management plan, for approval by its engineering branch, detailing the steps necessary to prevent soil erosion and sediment loss.

11. On 29 October 1987, Council received from Robert a marked up plan indicating the locations of stockpile areas, silt traps and other earthworks, etc. (tab 44).

12. Council's Engineering Department signified, on 9 November 1987 (tab 45), that it was satisfied with Greenwood's proposals. The Council officers' report of 11 December 1987 (tab 46), recommended consent on conditions (including some "model conditions", but not the one numbered "1Y" - see [86] below). The officers' recommendation was adopted (fol 129), and, under delegated authority, the consent was granted (fol 130).

Robert is granted his 1987 consent (87/455)

1. On 17 December 1987, Council notified Robert - who used letterhead "R Greenwood Contracting", and gave his address as 86 Myoora Road, Terrey Hills - that it had granted DC No. 87/455 for the "importation, stockpiling, recycling and resale of materials under [PO] 1978/5 Metropolitan." (Exhibit C1, tab 47, and Scott, tab 3). The land subject to the consent was described as ML 47 Mona Vale Road, Terrey Hills.

2. Condition 1 provided for "development being generally in accordance with plan of quarry restoration unnumbered, dated 29.10.1987, submitted 29.10.1987, as modified by any conditions of this consent". There was no term/life specified for the consent.

3. Condition 8 (Exhibit C1, fol 134, and Scott, fol 051) provided:

   "Only material imported to the site for restoration purposes to be screened for recycling of sandstone."

4. During the first half of 1993, the Department of Conservation and Land Management conducted a preliminary inspection of Crown Lands within Warringah Shire, and, in a letter received on 18 June 1993 (tab 48), raised a number of matters for Council's consideration. In respect of the subject premises, the Department noted that the extractive life of the quarry has a further six years to run and was of the opinion that the land would be ideally suited for tipping operations once the quarrying was completed.

1. There was scope to provide an end use, other than recreation, depending on the nature of the fill introduced and the extent of compaction (fol 137). The Department pointed out (fol 138) a need to facilitate the continued operation of the quarry and allow for concurrent introduction of fill to the site so as to ensure proper restoration. The Department suggested the extraction of material and tipping of fill be made permitted uses under the present non urban zoning for this site. Once properly restored the question of changing the zoning, if necessary, could be addressed. (The subject site is correctly marked on a plan, enclosed as annexure 'D', at fol 142).

2. On 18 June 1993, State Environmental Planning Policy No 37 - Continued Mines and Extractive Industries ('SEPP 37') also came into force, but it did not apply to ML 47, being an "existing use" under s 107 of the EPA Act, rather than a "continuing use" under s 109. Robert enquired of the Council, orally, regarding SEPP 37, following advice from the Department of Mineral Resources (file note at tab 49).

Robert seeks a 1993 modification of his 1987 consent

1. On 21-23 July 1993, Robert applied (tab 50), and Council received his application (fol 146), to modify DC 87/455 (fol 148, where he also mentioned DA 1987/182) "to expand the materials permitted for recycling to include clay/soil, bricks/concrete, and tree loppings/shrubbery, as well as the sandstone covered by DC 87/455. Condn 8". The expression "Condn 8" (on fol 148) is in different handwriting from the balance of the application form. As Mr Burgess observed (T31.10.11, p11, LL29-30): "And then someone's written and it looks like not Robert Greenwood perhaps, who knows, condition 8". Council gave the application the reference number "3M0067".

2. Robert gave his address as PO Box 248, Terrey Hills, and the address of the development as "Mining Lease 47 (now 909), Mona Vale Road, Terrey Hills". Robert described himself as the "original applicant", and said, in an accompanying letter, dated 21 July 1993 (fols 153-155), that he was seeking to modify the consent, "due to increased demand for the supply of materials that at present are being buried in our landfill operation which is part of our current restoration works on the site". He did not wish to see the landfill facility become "too full, too soon".

3. Most of the material Robert imported to the site came from outside the Council's area. Modification would also "assist in easing the strain at [the Council's] Kimbriki Depot", which could be preserved for local ratepayers. The clay/soil came mainly from swimming pool excavations, etc, and Robert had been in close liaison with Council's recycling officer at Kimbriki, Bob Sharman. Mulch and compost would be needed on restoration sites, to promote growth of native trees and shrubs. He was happy that the new uses would be subject to all the existing controls from "the original consent" (which could only be 87/455).

4. On 27 July 1993, Council noted on its file that this development, so modified, could replicate "profitable components of [Council's] Kimbriki operations", and "reduce the surplus from Kimbriki".

5. On 30 July 1993 (tab 51), Council officers inspected the site, and requested Robert to provide a plan showing proposed stockpiles for mulch.

6. On 3 August 1993, Robert wrote to Council's Town Planning Department regarding SEPP 37 (tab 52). He had come to the conclusion that the SEPP did not apply to his operation because the MLs were granted prior to the necessity for DC (ML 46 being the latest, at 2 September 1955). As a matter of caution (it would appear) he was seeking to register his operation prior to 17 September 1993. The Town Planning branch prepared a file note on 24 August 1993 (tab 53).

7. On 1 September 1993, Robert submitted his plans (tab 54), specifying proposals in respect of screening, the mulcher and stockpiles.

8. From July to September 1993, Council officers raised no objection to the modification, "subject to made condition 14". (Exhibit C1, tab 55 - my emphasis). The respondent argues, in respect of this handwritten document, that the "4" in "14" looks completely different from the "4" in "24" in the date on it, and contends that the note says "no objection subject to model condition "1Y" (see [72] above). Council tendered a document (see Exhibit C2) containing model development conditions, being policy No. 6.3.01, as it stood on 13 November 1990. Those model conditions appear to have been first promulgated on 25 September 1984. They contain a group of provisions known as "Group Y: Non Urban (Engineering)", and model condition number 1Y provides: "Provision of a sealed vehicle entrance from an approval location on the formed road, to the satisfaction of the Shire Engineer" (emphasis in original). Also included in the exhibit is an extract from the minutes of a Special Meeting of Council, on 13 November 1990, updating those conditions, as they had stood at September 1990.

9. On 5 October 1993, Council sought further information from Robert, to be provided at "an on-site meeting 19/10/93" (tab 56).

Robert dies on 22 October 1993, and Scott takes over the operation

1. On 22 October 1993, as already noted, Robert died as a result of a workplace accident at the premises, and Scott began managing the business shortly afterwards (Scott, par 12).

2. Robert left a will dated 15 August 1986 (Exhibit C1, tab 71, fols 211-214, and Scott, tab 4, fols 054-059), in which he appointed Scott and Scott's sister, Jacqueline Ann Greenwood ('Jacqueline') as executors and trustees. Robert made the following further dispositions in his will:

   In par 3: "I direct that my quarry business trading as 'R. GREENWOOD CONTRACTING' unless and until sold shall be managed by the said SCOTT ROBERT GREENWOOD who shall be paid such salary as shall be reasonable remuneration for the position of Manager and I nominate the said SCOTT ROBERT GREENWOOD as the Transferee of Mining Leases ML7, ML52, ML46 and ML909 including Permissive Occupancy PO1978/5 Metropolitan presently held in my name in connection with my said business". (ML 909 was formerly ML 47).

   In par 4, he left the property 86 Myoora Road, Terrey Hills, on trust for his wife, Geraldine, until her death or remarriage, and then to his residuary beneficiaries.
   In par 5, he left the shares in C B Greenwood Pty Limited to his parents, Clifford and Doris, if one or both survived him.
   By par 6, the residue of Robert's estate was left to such of Scott, Jacqueline, and two other children, Tiffany and Jamie, as survived and attained the age of 21, as tenants in common.
   By par 7, the trustee of the estate was given wide powers to deal with it.

3. Scott says (par 14) that Robert's death, and his own assumption of management of the premises and the business, became known to Council during November 1993, when Scott held discussions with both Council and Department of Lands (tab 57-61, and 66-67). Robert's father Clifford was still alive (fol 165). Council admits (POD 9) that, by 18 November 1993, it was aware that Robert was dead, but it does not admit that it knew that Scott had assumed responsibility for the conduct of the business. Tab 57 contains a Council file note which records (in three entries, dated, respectively, 1, 17 and 18 November):

   "Mr Bob Greenwood died in an industrial accident on about 22/10/93. Mr Greenwood had been requested to supply additional information, which he had informed Council he had organised. The applicant's family will be contacted in 2 weeks time to determine what action they would like to take in regard to the application.

   Spoke to Bob Greenwood's father on 17/11/93. He advised the sons of Bob Greenwood would be carrying on the works and he would speak to the Lands Dept regarding additional info. required by Council.

   Spoke to Scott Greenwood (son) on 18/11/93. He advised they would be unable to get information until early 1994 due to holiday leave of person they were dealing with. I advised this was satisfactory but requested they attempt to get info. into Council ASAP."

4. Scott deposes as follows (pars 14-17):

   "14. In the year or so following my father's death, I had a number of discussions with the Department of Lands and the Council about the nature of the business, the present and future operations planned and the permissions necessary to conduct the business. I was asked, and answered, various questions and also exchanged correspondence with the Department and the Council about these matters.

   15. At this time I had had little or no experience with the paperwork associated with the business. I assumed all permits and licences which were required to run the business were in place. It seemed to me that the representatives of the Department of Lands and the Council were being helpful to me in the transition of responsibility of the business from my late father to me.

   16. As I found the representatives of Department of Lands and the Council to be helpful, I did not think it necessary to seek any advice or to question the many procedures that were required for transferring responsibility of the business from my late father to myself.

   17. During these discussions, I was told by representatives of either the Department of Lands or the Council, I cannot now recall who, that I needed to obtain a development consent to undertake landfill and restoration activities on the Premises. In about July or August 1994, I met with Council officer Ms Kerrie Symonds at the Premises to discuss what information was necessary to enable me to submit that further development application."

5. During the early part of 1994 Scott was in negotiation with Council (see tabs 58-59) in respect of the affairs of R Greenwood Contracting.

6. On 3 March 1994, Council wrote to Scott (tab 60), requesting details of "the expected life of the quarrying operations", and "the expected time frame of the restoration works". The letter was headed "Mining Lease 47, Mona Vale Road, Terrey Hills - Modification of Consent No, 87/455", and so was Scott's reply to Symonds on 25 March 1994. There was no reference at all, in the body of either letter, to Robert's modification application; the only references are in the headings, but, on Council's behalf, Mr Hemmings puts it quite strongly that Scott was clearly negotiating Robert's modification application with Council (T31.10.11, pp75-6).

7. In Scott's reply (tab 61), he stated that "the life expectancy of the quarry operations relies upon demand". He explained the operation and his plans but did not identify any time limit. He went on to say (fol 184):

   "The resulting product, leaf and chip mulch, shall be made available for public purchase, however, approximately 50% of this would remain on site to aid in our reclamation and restoration work. As we have yet to receive our mulching machine, I cannot make available the quantities, however, when they become available I shall forward them to the Council.

   As approximately 50% of material deposited on site is mixed waste (bricks, concrete, bitumen) our intention has been to begin processing the mixed waste, where by any bricks, concrete, bitumen etc, would be sorted and stockpiled separately, any cleanfill and material unable to be recycled would be retained on site while the recyclable material would be trucked to the crushing plants available. The closest crusher available to us is at Kimbriki Waste Depot at Terrey Hills.

   The total amount of material brought on site per month is between 800-1500 tons, of this material 50% would be able to be crushed and recycled at Kimbriki Tip. During an average month we would have an intake of approximately 150 two ton tippers, 70 six ton tippers and 45 twelve ton tippers.

   We have a lease agreement with the Department of Conservation and Land Management which is until the year 2002. With our recycling of material we intend extending our landfill operations to meet the 2002 time limit on our lease agreement."

8. On 24 March 1984, the Environment Protection Authority ('EPA') wrote to the Council (tab 62) in apparent response to a request for comment on Robert's modification proposal. The EPA had some concerns and suggested Council request more information on a number of aspects in view of EPA requirements. Mr Greenwood would need to seek an amendment to the Certificate of Registration under the Waste Disposal Act 1970 (tab 62, fols 185-186).

9. On 18 April 1994, Scott became the licensee of Crown Lands Licence (CLL) 198035 in respect of the premises (Scott, tab 1). It had no fixed term, and apparently remains in force. Clause 24 (fol 009) deals with commencement, and continuation until revocation. The respondent admits (POD 10), that it did, indeed, know, by 31 May 1994, that the CLL had been granted to Scott. (Tab 64 shows that Council was informed on 20 May 94 that Scott had been granted the CLL.)

10. Clause 22 of the CLL (tab 1, fols 008 and 039) conferred upon Scott the right to occupy the premises for the purposes of extraction of sandstone overburden, placement of landfill material for restoration, and the storing, stockpiling and processing of material for re-sale purposes. The CLL (cl 32, fol 012) also required Scott to obtain, where necessary, consent under the EPA Act, for any activity requiring it. Clause 33 (fol 012) obliged him to carry out such activity in accordance with any conditional requirement of such a consent, and cl 34 required the holder to comply with the requirements of all statutes regulations or by-laws of public authorities in relation to the use and occupation of the premises. The Schedule (fol 039) nominated the Carawa Road address for the service of any notices, and the commencement date was nominated as 1 January 1994.

11. On 20 May 1994, (as noted above, in part, in par [96]), the Crown Lands Service notified Council (tab 64) that Crown Lands Licence 198035 commenced on 1 January 1994, and that PO 78/5 was terminated on 18 April 1994. That advising was received on 31 May 1994 (fol 188). A copy of the CLL was included (fols 189ff). It is in the name of Scott Robert Greenwood of 58 Carawa Road, Cromer, and is dated 18 April 1994, but stated to have commenced on 1 January 1994. It covers ML 46, and parts of ML 47 and ML 52, and adjoining Crown Land. The holder's address for notices is 58 Carawa Road.

12. Symonds consulted with the EPA on 12 July 1994 (tab 65), and ascertained that a new certificate of registration under the Waste Disposal Act was required "because of the proposed modification".

Scott makes his own DA in 1994

1. Scott refers in his affidavit (par 18) to making a DA on 29 August 1994, as he had discussed with Symonds (his par 17 is quoted above at [91]), and states that he made the DA as "lease holder" of the land (presumably a reference to his holding of a Crown Lands Licence, rather than any ML).

2. He sought DC for the development of "landfill, restoration and re-vegetation" at the premises (Scott, tab 5). DA 1994/501 (tab 6) is dated 29 August 1994, gave his address as 58 Carawa Road, Cromer, and described the land as ML 46 & part ML 47 on Mona Vale Road opposite St Ives Showground. He described the proposed development as follows (fol 061):

   "Restoration of clay & shale open cut Quarry workings within ML 46 & Part ML 47 by landfill
   Land Fill over existing site fill area ML 46
   Revegetation & stabilisation of total area
   Establishment of screen mounding and planting over existing filled areas ML 47 & ML 52

   in accordance with plans in 5 sheets approved by the Crown Lands Services - ref: MN304869 vide CALM letter of consent 12 August 1994".

3. On the subject of environmental impact, the DA noted that the proposed landfill and revegetation operation was part of restoration programme developed between the lease holder and the Department of Conservation and Land Management. It should result in an improvement of the landscape, and the revegetation would cover approximately 1.8 ha. (The departmental letter of consent does not appear to be included in the affidavit).

4. Curiously, Exhibit C1 contains (tab 66) a copy of a letter, bearing date "25 July 1994", in which Council asked Scott for further info on his DA which it was investigating. Scott's memos to Council dated "29.8.94" (tab 67) would appear to respond to that "July" request, the date shown on which is obviously incorrect. Unless the letter was a follow-up to some pre-DA discussions with Council, it was probably sent to Scott on 25 August 1994.

Probate of Robert's will is granted, but not to Scott

1. On 8 September 1994, probate of Robert's will was granted to Jacqueline alone, with leave reserved to Scott to apply (Exhibit C1, tab 71, fol 210). The inventory of property attached to the grant of probate (fols 215-216) included an interest in R Greenwood Contracting valued at $101,506, two motor vehicles, and Robert's interest in the property he jointly owned with wife Geraldine, at 86 Myoora Road, Terrey Hills, which is shown as having an estimated value of $500,000.

In October 1994, Council assesses and grants Robert's Modification Application, and imposes a sunset clause on the 1987 consent

1. On 6 October 1994, Council prepared its officers' report on Robert's DA 1987/182, proposing the modification of DC 87/455 (tab 68). The "applicant" is recorded as simply "Mr Greenwood" of 86 Myoora Road. No responsible Council officer is identified, and the report notes that the subject application was for a "minor" approval, as the area on which work was carried out was not being increased - it related only to allowing additional material to be recycled. The report noted that additional information had been submitted on 20 October 1993, 25 March 1994 and 30 August 1994. No mention was made of Robert Greenwood's death, but Robert had, by then, been dead for almost twelve months.

2. In the section providing comments on "Environmental Planning", the following entries occur (fols 199-200):

   "Existing Operation
   The applicant holds Permissive Occupancy 1978/5 to use Mining Lease 909 (formerly known as ML 47) for the removal of silica, sandstone and clay. The existing quarrying operation consists of removal of raw sandstone material and processing it through a mobile screening plant, resulting in three different grades of material. Each grade is stockpiled in quantities of up to 200 tonne at a time. Once the sandstone is removed, a clay shale seem (sic) becomes exposed. The clay shale is excavated straight out of the ground and trucked to brickyards.

   In 1993, 3634 tonnes of sandstone was excavated, an average of 302.5 tonnes monthly and 6846 tonnes of clay shale was excavated, an average of 570.5 tonnes monthly. Approximately 645 tonnes of sandstone was brought to the site and screened with the excavated material for resale. Consent No. 87455 contained no restriction as to who purchased the materials.

   The Proposal
   It is intended that a mulcher be purchased to produce leaf and chip mulch. It is proposed approximately 30% of this will remain on-site and the remainder sold. It is also proposed to sort brick, concrete and bitumen and transport it to a crusher at Kimbriki Waste Depot. This recycling will extend the landfill operations to the year 2002, the year when the lease agreement expires and prevent the rehabilitated sites 'filling up' too quickly.
   ...
   This is considered satisfactory as the EPA require a Certificate of Registration for a Depot under the Waste Disposal Act 1970. The EPA will ensure nutrient discharge is satisfactory while considering this application".

3. The Council officers concluded (fol 200) that "the proposed modification will reduce the amount of landfill, improving the use of the site. There are no objections to the modification". There followed a recommendation, setting out the alterations to the description of the land in 87/455 to read "Mining Lease 909 (formerly Mining Lease 47) Mona Vale Road, Terrey Hills", the proposed amendments to conditions 1, 8 and 9, and the addition of conditions 10-14, including the sunset clause in condition 14 (nominating 1 January 2003). Despite the debate about possible impacts of the modified Greenwood operation on Council's Kimbriki operation, counsel for Scott, Mr Burgess, does not suggest that Council imposed the sunset clause for the (improper) purpose of avoiding competition (T31.10.11, p12, LL7-9).

1. Relevantly, condition 8, as amended by the modification, would read (fol 201 c.f. fol 34, [75] above):

   "Only material imported to the site for restoration purposes may be screened for the recycling of sandstone, soil, masonary (sic) and vegetation." (The emphasised materials listed being those added to the condition's original wording).

2. The development unit adopted the recommendation, and it was approved under delegated authority on 6 October 1994 (fol 202).

Council notified the Modification Approval, including the Sunset Clause

1. On or about 17 October 1994 (tab 70), Council gave written notice of its favourable determination of the modification application - despite Council knowing since November 1993 that Robert had died in October 1993, it addressed the notice to "R C Greenwood, 86 Myoora Rd, Terrey Hills, NSW 2084", and not to the Terrey Hills PO Box which Robert's application had nominated.

2. Scott's mother, Geraldine, continued to live at that Myoora Road address throughout 1994, but, at the time of Council's notification letter addressed to Robert, she was not on speaking terms with Scott (his par 25), who at that time was "involved in court proceedings" against both his mother and his sister over Robert's will.

3. The Council letter of 17 October 1994 (fols 204-5) was itself fairly detailed and explanatory, but it also enclosed a more formal instrument of modification (fols 206-8), which set out a "complete list" of the conditions of the consent, as modified, including condition 14, and added the customary notes regarding operational date, rights of appeal, lapsing, etc.

In November 1994, Council approves Scott's DA

1. On or about 29 November 1994, the Council granted DC 94/524 to Scott for the development of "restoration, landfill and re-vegetation" (Scott, tab 6), as sought on or about 29 August 1994 (Scott par 18, and tab 5. See [100]-[102] above). Council's letter to him (fol 064) was dated 29 November 1994, and addressed to him at 58 Carawa Road, Cromer.

2. On 8 February 1995, solicitors acting for Jacqueline, as the executrix of Robert's will, wrote to the Council, in response to a rates assessment, asking Council to note that the "new Crown Licence No. 195773" issued in Scott's name was held on trust for his father's estate, and that Scott's address at Cromer was not the correct address for the service of notices. Notices should be sent to Jacqueline's address - 15 Booralie Road, Terrey Hills. The letter enclosed a copy of the probate, which included a copy of the will and the inventory (tab 71, fols 209-216. See [89] and [104] above). There is a handwritten notation on the bottom of Mr Holt's letter saying: "Postal address changed 15.2.95".

Scott learns in 2009 of the 1994 imposition of the 2003 sunset clause

1. On 12 October 2009, Scott submitted to the EPA a licence variation application in respect of EPL 4669, and provided copies of the 1987 and 1994 consents, and of CLL 198035.

2. On 11 December 2009, Scott received a letter from the EPA - addressed to him as "Scott Robert Greenwood trading as R. Greenwood Contracting", at PO Box 404, Dee Why, and referring to the premises as "450 Mona Vale Road, St Ives" (Scott, tab 7).

3. The EPA letter noted that the 1987 consent referred to land described as ML 47, whereas the 1994 consent covered the PO and various MLs, including part of ML 47.

4. The letter advised that variations had been made to the EPL on 9 November 2009, to add conditions authorising undertaking of the scheduled activities of waste storage and resource recovery. However, the letter went on to assert that the 1987 consent had been modified, in October 1994, to include the 2003 sunset clause.

5. The letter said (fol 069) that it was attaching "a copy of the modification document", but what was in fact attached (tab 8) was the two-page letter of 17 October 1994 without the more detailed formal instrument which had been attached to the original of it ([110] and [112] above). The EPA noted (fol 069) that "the 17 October 1994 modification" document had not been provided to the EPA, by Scott, as part of his licence variation application, and asked for an explanation of that, and for evidence that the operation enjoyed consent.

6. Scott swears that the December 2009 letter from the EPA was the first time he became aware of that modification of the consent upon which he had always relied (pars 22-26), and Council admits that no notice of the modification was given to Scott (POD 28(b)). If the 17 October 1994 letter, and attached instrument, sent to "R C Greenwood" at 86 Myoora Road, Terrey Hills, came to the notice of Robert's widow, or his daughter/executor, neither document came to Scott's attention.

7. On receipt of the EPA letter, Scott made inquiries of Council (par 27), and, on about 29 January 2010, Council provided him with a copy of Robert's modification application, dated 21 July 1993 (Scott, tab 9. See also [79]-[81] above).

8. Scott deposes (par 32):

   "I was never informed by the Council or anyone else during 1993 or 1994 that the Council was considering modifying the First Consent to place a time limit on that consent. I had no idea the Council was proposing or considering to modify the First Consent in this manner. I did not ask the Council to modify the First Consent and I was never asked by the Council, or anyone else, to comment on whether the First Consent should be modified to include a sunset clause or other time limit."

Council moves to close down the operation, and Scott seeks to regularise it

1. On 8 February 2010, Council issued a Notice of Intention to issue an order that Scott cease importing, stockpiling, recycling and reselling, because the sunset clause had expired, meaning that "the current use of the property is unauthorised" (Scott, tab 10). The Notice of Intention was addressed to Scott at 9994 Mona Vale Road, Belrose. For completeness, I set out the following contents of the Notice (fol 075):

   "TO DO WHAT:

   1. Cease all activities that are being carried out without development consent on the subject property. The activities referred to include but are not limited to importation, stockpiling, recycling and the resale of materials on the site.
   2. Comply with current consent 94/524.

   REASONS FOR THE ORDER: (s 121L of the Act)

   1. An inspection undertaken by Council Officer's on 11 January 2010 revealed that the abovementioned activities are being carried out on the property. The previous consent (87/455) that permitted these activities remained effective until 1 January 2003 and as a consequence the current use of the property is unauthorised.
   2. The current development consent for the property (94/524) permits restoration, landfill and revegetation and remains effective at this point in time."

2. Michael Flaherty, Scott's solicitor, then corresponded with the Council, between March and June 2010 (Scott, tab 11), trying to negotiate a solution, and Council decided to allow Scott to submit a further DA. In its letter of 17 June 2010, Council indicated that, if the DA were not approved, Council would proceed with appropriate enforcement action.

3. On 3 November 2010, Scott submitted a further DA for importation, stockpiling, recycling, and resale. He made that application "without admission", and "without prejudice" to his right to bring his present proceedings.

4. On 25 March 2011, the November 2010 DA was refused.

5. On 18 May 2011, Scott commenced both a Class 1 appeal against that refusal (matter 11/10405), and these Class 4 proceedings.

Scott's addresses

1. In his affidavit of 2 August 2011, Scott gave 79A Parkes Rd, Collaroy Plateau, as his current address. He had previously given the Carawa Road, Cromer, address, or the Mona Vale Road address of the land, but he used the Myoora Road address only when he provided Council with materials or information using "R Greenwood Contracting" letterhead (tabs 58, 59), in the early days after Robert's death. Council certainly wrote to him at Myoora Road (tab 60) on 3 March 1994, but also at the Terrey Hills PO Box (tab 66) on 25 July 1994. Scott responded to both those letters. By 29 August 1994 (tab 67), he was using "R Greenwood Contracting" letterhead, but with the Carawa Road, Cromer address, when writing to Council.

These Proceedings

1. The Class 4 proceedings came on for hearing on 31 October 2011 and 3 November 2011, and this judgment was reserved. On 4 November 2011, I adjourned the Class 1 proceedings, pending delivery of this judgment ([18]-[23] above).

2. In the final form of his (further amended) Class 4 summons (filed in court on 31 October 2011), Scott seeks from the court:

   "1 A declaration that the purported modification, on or about 17 October 1994, of Development Consent No: 87/455 (the First Consent) to insert 'condition 14' is null, void and of no effect.
   ...
   3 Alternatively to order 1, a declaration that the whole of the purported modification, on or about 17 October 1994, of the First consent is null, void and of no effect.
   ...
   5 A declaration that the recyling activities permitted by the First Consent are not limited to that of sandstone.

   6 A declaration that the First Consent is not limited to the land area of former Mining Lease 47 but also includes the land area of ML 46 and ML 52, as set out in the plan of quarry restoration dated 29.10.1987 and identified in condition 1 of the First Consent.

   7 The respondent pay the applicant's costs of the proceeding.

   8 Such further or other order as the Court thinks fit."

3. The respondent Council was directed by Pepper J, on 24 June 2011, to provide a Statement of Reasons for its decision to modify DA 87/455, including by the insertion of condition 14, imposing the sunset date of 1 January 2003. That Statement of Reasons (Exhibit G1) relevantly says as follows (emphasis added):

   "The Applicant was carrying out development on the land pursuant to a permissive occupancy, previously known as Mining Lease 47. It was a requirement of both the Mining Lease and the permissive occupancy that the land be restored after quarrying operations, and prior to the expiry of the Lease/permissive occupancy.

   As part of the assessment process for the s102 modification, by letter dated 3 March 1994, Council requested additional information including:
   The expected life of the quarrying operations; and
   The expected time frame of the restoration works.

   By letter dated 25 March 1994, Mr Scott Greenwood informed the Council that:

   'We have a lease agreement with the Department of Conservation and Land Management which is until the year 2002. With our recycling of material we intend extending our landfill operation to meet the 2002 time limit on our lease agreement.'

   In the Report on the s102 modification to the Development Unit dated 6 October 1994, this information is taken into consideration, see for example page 2 of that Report:

   'This recycling will extend the landfill operations to the year 2002, the year when the lease agreement expires...'

   Consistent with the limited life of the 'lease agreement', it was appropriate to limit the life of the consent (as amended) to the life of the lease agreement. To that end, condition 14 was recommended to be imposed.

   Having considered the matters set out in the Council's Statement of Reasons dated 22 June 2011 [not before the court] and, specifically those matter (sic) identified above, the delegate determined to approve the modification application subject to conditions, including condition 14."

4. Scott was also directed to file with the court a list of Issues in Dispute, and did so on 27 September 2011, listing the following 6 matters:

   "1. Did s 102 of the Environmental Planning & Assessment Act 1979 (NSW) confer power upon the Council to modify the First Consent by adding the 'sunset clause' condition terminating that consent effective 1 January 2003 (Ground 1)?

   2. Did the respondent deny the applicant procedural fairness in the course of its decision to modify the First Consent by adding the 'sunset clause' condition (Ground 2)?

   3. Was the Council's decision to modify the First Consent by adding the 'sunset clause' condition invalid and/or ineffective because notice of the modification could not be given to the deceased Robert Greenwood and was not given to the applicant (Ground 3)?

   4. Did the modification application lodged by Robert Greenwood in July 1993 lapse, abate or cease to be effective upon his death on 22 October 1993 so that the Council's later decision to modify the First Consent by adding the sunset clause was ineffective (Ground 4)?

   5. Are the recycling activities permitted by the First Consent limited to that of sandstone?

   6. Does the land area covered by the First Consent include the land area of ML 46, ML 47 and ML 52, as set out in the plan of quarry restoration dated 29.10.1987 and identified in condition 1 of the First Consent?"

5. While counsel for both parties were content to argue the case under those six headings, there was also argument about existing use rights (Issue 7?).

6. I will now outline how those seven matters were put to the court in the APOC, POD, and the parties' submissions on them. I will then set out some relevant statutory provisions raised in argument, before I consider what findings are appropriate.

Issue 1/Ground 1 - Power to impose the Sunset Clause.

1. In APOC 16-19, Scott charges that the modification, by addition of the sunset clause, "purported to rescind rights" given by the 1987 consent, "in perpetually to undertake ... importation, stockpiling, recycling and resale of material". The rights operated in rem and attached to the premises. Neither Robert nor Scott requested, nor did either of them consent to, the addition of the time limit to the consent, as a condition of the modification, and Scott had no right of appeal (under s 102(5) of the EPA Act).

2. In APOC 20-22, Scott argues either (1) that the Council's determination to insert the sunset clause either was "not reasonably capable of being regarded as related to the purpose for which the power conferred by s 102" (to modify a consent) was granted, or (2) that the determination, "did not constitute an approval of the modification application, or was otherwise outside the scope of the" s 102 power, rendering the insertion of the sunset clause "null, void, and of no effect".

3. The respondent rejects these contentions (POD 16-22). It submits that a sufficient nexus exists between the sunset clause condition and the substance of the modification application for the court to uphold the imposition of condition 14.

Issue 2/Ground 2 - Denial of Procedural Fairness

1. In APOC 23-27, Scott denies that he was aware, or had reason to believe, that a sunset clause would be inserted into the 1987 consent, and complains that that decision has affected his rights and interests. The respondent owed Scott a duty to accord him procedural fairness when making such a decision, but failed to inform him of, and/or invite comment on, any proposal to do so. As a result, the determination to insert the clause was "null, void, and of no effect".

2. The respondent admits its duty to afford Scott procedural fairness, but says that the duty does not extend to cover what Scott complains was not done in this case (POD 23-27).

Issue 3/Ground 3 - Failure to give Scott notice of the modification

1. This ground is put as an alternative to Grounds 1 and 2, and Scott argues (APOC 28) that the respondent did not give him written, or any, notice of the determination, but was aware that his address for service of notices in regard to the business and the premises was 58 Carawa Road, Cromer. As a result, the insertion of the sunset clause was "null, void and of no effect", or the Council's determination "never took effect".

2. Scott does not assert that no notice was sent, only that none was sent to him.

3. The respondent admits it was aware of Scott's Cromer address, but says it gave notice of the determination in strict accordance with the EPA Act (POD 28). It submits it has no statutory duty, specific to Scott, in this respect, and admits that it gave no notice to him.

Issue 4/Ground 4 - Abatement of the Modification Application

1. Again as an alternative to Grounds 1-3, Scott claims (APOC 29) that the modification application was "personal to Robert", and not "transmissible or assignable", and, therefore, ceased to be current or effective when Robert died on 22 October 1993. Accordingly, the Council lacked power to modify the consent on 6 October 1994, and the decision to do so was "null, void, and of no effect", or never took effect, because notice could not be, and was not, given to Robert.

2. The respondent denies all elements of this claim (POD 29). Some statutes make specific provision for processes to either abate or continue on the death of a party concerned, but there is neither a general rule, nor a specific provision, in the EPA Act regarding what happens to an undetermined modification application when the applicant dies. The respondent submits (par 49) that "no purpose consistent with the statutory scheme in the EPA Act is achieved by treating the Modification Application as a nullity" because of Robert's death.

Issues 5 and 6 - Construction of the 1987 Consent

1. Issues 5 and 6 concern the proper construction of the 1987 consent (APOC 30-1). Scott contends (1) that the permitted recycling activities were not limited to sandstone, and (2) that the area approved was not limited to ML 47, but included MLs 46 and 52, because the PO was not so limited, and the approved consent plan shows that whole area. If the sunset clause fails, it can be severed from the balance of the modification notice (Interpretation Act 1987, s 32).

2. The respondent denies these contentions (POD 30-1). It says that the 1987 consent, both before and after modification, clearly applied only to ML 47, as it was granted and modified in reliance on existing use rights, which attached only to ML 47. While the drafting of condition 8 may have been, and remains, rather clumsy, the intention of all parties - both of the Greenwoods, and the Council - was to expand the range of materials, but also continue to limit it.

Issue 7 - the Existing Use argument

1. During the Council's submissions on the construction issues, Mr Hemmings sought to put some emphasis on the fact that the operation enjoyed existing use rights. He asked Mr Burgess (T3.11.11, p22) to concede (LL18-19) that "ML Application 443 is in fact the mining lease application for ML 47".

2. Mr Burgess protested that the Council's argument that "any existing use rights were limited to ML 47" (T p23, LL9-10) went beyond the issues articulated in the APOC and POD and, as no particulars were provided, Scott had not taken the opportunity to put on any evidence about it. As it worked an unfairness on Scott for it to be raised at such a late stage of the proceedings, the court should not entertain it. He emphasised that more land area than ML 47 was shown on the map for MLA 443 (at Exhibit C1, tab 4).

3. Mr Hemmings responded that Scott bears the onus on all matters, including any assertion that any use of MLs 46 and 52 is lawful. The lawfulness of such use was clearly denied in the POD - properly construed, the DC and its associated plans do not allow for it - and the Council served very early its submissions and all the materials (in Exhibit C1) upon which it relied for resisting the claims made. Scott chose not to seek any particulars of the defence filed by the respondent.

4. The map of MLA 443 (at tab 4) depicts both ML 46 and ML 47 (and other areas or features of the land), but the application for the ML was made in relation to the area which is most particularly specified on it (by precise bearings/coordinates), and that is clearly ML 47. I am satisfied on that point by the evidence before me, and do not need Scott to make the concession. I am equally clearly satisfied that ML 47, and only ML 47, enjoyed existing use rights in 1987, and continues to do so.

5. I will now set out some statutory provisions relevant to the court's consideration of those issues.

Relevant Statutory Provisions

The Planning Regime at the relevant time

1. During the relevant period July 1993-October 1994, the provisions of the EPA Act were different from those which now apply.

1. In Part 4 of the Act, as it stood at the relevant time, Division 1 (sections 75 onwards) dealt with the making (s 77) and determination (s 91) of DAs. Objections to designated development were dealt with in ss 84-89, with s 87 providing for objectors to make submissions. The matters for consideration by the consent authority were listed in s 90. A DA could be determined (s 91) by the granting of consent, either conditionally or unconditionally, or by its refusal. The period during which development may be carried out in accordance with a consent granted could be stipulated in the conditions - see s 91(3)(d). Section 92 dealt with the giving of notice of the determination to the applicant; s 93 dealt with the consent's commencement date; and s 95 dealt with notification to objectors, and other persons who made submissions, when an application for designated development was determined.

2. That part of the Act dealt also with the question of contributions, deemed refusal, appeals, lapsing, and other matters, before coming to the question of modification of consents, in s 102:

3. Modifications sought by an original applicant, or another person acting upon a consent, were allowed where the consent authority was satisfied that the development remained substantially the same development, that no prejudice would be caused to an original objector, and there had been consultation with any relevant Minister or public authority. The consent authority had to consider the matters specified in the then s 90 which were relevant to the modification. Subsections (4), (5) and (5A) of s 102 provided as follows:

   "(4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified.

   (5) A person making an application under subsection (1), and dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days of the application being made, may, except where the application is made in relation to a consent granted by the Minister under section 101, or except as may otherwise be provided by this section, appeal to the Court, and the Court may determine the appeal.

   (5A) Nothing in subsection (5) enables an appeal to be made against the determination of, or the failure to determine, an application to modify a development consent, being a development consent granted by the Court".

4. Section 153 dealt with notices in the following terms (emphasis added):

   "(1) Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served -
   (a) in the case of an individual:
   (i) by delivering it to him; or
   (ii) by sending it by prepaid post addressed to him at the address, if any, specified by him for the giving of notices or service of documents under this Act, or, where no such address is specified, at his usual or last known place of abode or his last known place of business; or

   (b) in the case of a person not being an individual:
   (i) by leaving it at that person's place of business, or, if that person is a corporation, at the registered office of that corporation, with a person apparently not less than 16 years of age and apparently in the service of the person to whom the notice or other document is required to be given or on whom the notice or other document is required to be served; or
   (ii) by sending it by prepaid post addressed to that person at the address, if any, specified by that person for the giving of notices or service of documents under this Act, or, where no such address is specified, at that person's last known place of business.
   (2) A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1)(a)(ii) or (b)(ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post".

5. The Regulation, agreed between counsel to be in relevant and applicable terms, for the purposes of this case, is the Environmental Planning and Assessment Regulation 1994, which commenced on 1 September 1994, and Part 7 (cls 68-71) dealt with Notices of Determination of DCs, to applicants (s 92), and objectors (s 95). Forms were provided in the Regulations for such notices. Clause 69 requires a s 92 notice to be sent to the applicant within 14 days of the determination to which it relates, but specifically provides that failure to send the notice in that time does not affect the validity of the notice or the consent to which it relates.

6. Division 3 of the Regulation (cls 75-80) provided a prescribed form for an application under s 102, and a process for giving notice of an application. The application to modify had to contain the name and address of the owner, the address of the land, together with details of the consent, and the proposed modification.

7. Clause 79 of the Regulation dealt with Notice of Determination of a Modification Application in the following terms (emphasis added):

   "(1) Notice in writing of the determination of an application for the modification of a development consent must be given to the applicant as soon as practicable after the determination is made.

   (2) If the determination is made by the granting of development consent subject to conditions or by refusing development consent, the notice:
   (a) must indicate the consent authority's reasons for the imposition of the conditions or the refusal; and
   (b) must state that the Act gives a right of appeal against the determination".

Interpretation Act

1. During argument some reliance was placed on s 32 of the Interpretation Act 1987, which provides as follows:

   "Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

   (1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.
   (2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:
   (a) it shall be a valid provision to the extent to which it is not in excess of that power, and
   (b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.
   (3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made."

2. The word "instrument" is used in s 32, and defined in s 3(1) to mean "an instrument (including a statutory rule or an environmental planning instrument) made under an Act, and includes an instrument made under any such instrument."

The Administration of Robert's estate

1. In view of the complications caused in this case by the death of Robert, prior to the determination of his application for modification, it is appropriate to have regard to two particular provisions of the Probate and Administration Act 1898 ('P&A Act').

2. Section 61 provides as follows (some emphasis added):

   "Property of deceased to vest in NSW Trustee
   From and after the decease of any person dying testate or intestate, and until probate, or administration, or an order to collect is granted in respect of the deceased person's estate, the real and personal estate of such deceased person shall be deemed to be vested in the NSW Trustee in the same manner and to the same extent as aforetime the personal estate and effects vested in the Ordinary in England".

3. Section 44(1) provides (again some emphasis added):

   "Real and personal estate to vest in executor or administrator
   (1) Upon the grant of probate of the will or administration of the estate of any person dying after the passing of this Act, all real and personal estate which any such person dies seised or possessed of or entitled to in New South Wales, shall as from the death of such person pass to and become vested in the executor to whom probate has been granted or administrator for all the person's estate and interest therein in the manner following, that is to say:
   (a) On testacy in the executor or administrator with the will annexed.
   (b) On intestacy in the administrator.
   (c) On partial intestacy in the executor or administrator with the will annexed."

Consideration

1. Given how the parties agreed that the court should deal with the matter ([22] above), I shall now address, in turn, all the key issues upon which findings have been sought.

The Modification Power

1. It was thought, following Stein J's decision in Benalup Holdings Pty Ltd v Lismore City Council (1993) 81 LGERA 257 ('Benalup'), that a consent authority had no power to modify (under s 102, c.f. s 91 - see [153]-[155] above), other than in the terms applied for, unless the applicant for modification consented to terms proposed by the consent authority.

2. The majority of the Court of Appeal (per Mason P) in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 ('Standley') questioned the correctness of Benalup, and Stein JA, who also sat on that appeal, was prepared to accept that courts should revisit the question of whether there should be implied in s 102 the power to approve conditionally (see Mason P at 475-6, and Stein JA at 482).

3. In general terms, the law is that, if there is a power to impose conditions on those affected by the exercise of a power, the conditions must be "not inconsistent with the purpose for which the power is granted": Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, at 469-70 per McHugh J.

4. In Winn v Director General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508, Spigelman CJ said (at [13]) that a purported exercise of a power to determine a DA "will not be valid unless it constitutes a 'consent to that application'" (my emphasis). The same principle must apply to an application for a modification.

5. Bignold and Talbot JJ seemed to favour the Standley view over the Benalup view in, respectively, Captain Cook Cruises Pty Ltd v North Sydney Council [2002] NSWLEC 243; (2002) 126 LGERA 233, and WoolworthsLtd v Warehouse Group (Australia) Pty Ltd [2003] NSWLEC 350, but did not need to decide the point.

6. However, the Benalup/Standley question arose again, squarely, in 1643Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 ('1643').

7. McClellan J, then Chief Judge of this court, endorsed Mason P's observations in Standley, construing the modification power (now in s 96) as including an implied power to impose conditions on the approval of the modification. His Honour was careful to point out that the current power in s 96 is broader than the former power in s 102, and said (at [37]):

   "Furthermore, to my mind there is a difference between s 102 and s 96 which is of significance when reconsidering whether the decision in Benalup should continue to be followed. Section 102 only permitted modification when the consent authority was satisfied "that no prejudice will be caused to any person who objected" to the development application. Section 96 provides for modification both in circumstances where the modification involves "minimal environmental impact" and otherwise, clearly contemplating that modification which brings adverse impacts may be approved. The only constraint on the breadth of the power is that the modified development must be "substantially the same" as that which was originally approved. It would be surprising if, although there is a more liberal capacity to approve an application for modification, there was no capacity, without the agreement of the applicant, to impose conditions on that approval".

8. McClellan J added (at [51]):

   "Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration. If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise."

9. 1643 was followed by Jagot J in King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362, and its authority does not appear to have been challenged since. Her Honour said in King at [104]-[106]:

   "104. I have also concluded above that I must reject the Council's submission that the roadwork condition related to "the same planning matter" as the s 94 conditions. It is obviously difficult to define the extent of the power to impose conditions in advance of any actual exercise of power. The "same planning matter" formula used by McClellan J at [52] in 1643 Pittwater Road, in my view, was not intended to suggest that any condition whatsoever, impinging upon the same topic no matter how tangential to it, would be within power.

   105. I accept the applicants' submissions that, on the particular facts in this case, the roadwork conditions were so far outside the scope of the modification applications that the modification approvals incorporating the roadwork conditions were not authorised by the implied conditioning power in s 96. It seems to me that the facts are analogous to the observations of Stein JA in Winn v Director-General of National Parks and Wildlife and Others (2001) 130 LGERA 508 at [206] - [211]. That is, the roadwork conditions had the effect of so significantly altering the modifications for which approval had been sought, that the approvals were not approvals of the modification applications at all. They were a unilateral act by the Council outside power.

   106. One rationale identified by Stein JA in Winn for the existence of the principle that the consent must be capable of being characterised as a consent to the application lodged, is the potential for diminution of the participation rights of objectors (at [210]). This rationale, in my view, applies equally to modification applications. In this case, potential objectors had no opportunity to comment on the imposition of conditions on the subdivision consents requiring the upgrading of Eusdale Road - in circumstances where that very activity had been identified in the documents before the Council as potentially having a significant impact on a threatened species. As such, I am satisfied that this ground of challenge to the validity of the roadwork conditions should also be upheld."

10. Mr Burgess made a "formal" submission that I ought to follow Benalup in this case. That would render Council's decision to modify the 1987 consent by adding the sunset clause invalid, because that condition was neither requested, nor consented to, by either the applicant for modification, or the present applicant for relief. The Council asserts that its assessment process was lengthy and comprehensive, but neither of the Greenwoods was alerted to the prospect that a sunset clause could be imposed.

11. Even if there be an implied power to condition the grant of approval under s 102(1), that power is a lesser power than the power to grant the modification, which must accord with the application, and could not have supported the Council's decision to add the sunset clause in the present case. Mr Burgess submits that there can be no doubt that the Council's decision to add the sunset clause cannot properly be characterised as an approval of Robert's application.

12. The Council relies, for the validity of the sunset clause, on the focus of all players, during assessment of the modification application, on the likely lifespan of the operation, and on not "filling" the site too soon/quickly. However, while the ML was due to expire in 2002, that was not certainly the end of the matter, as MLs are frequently extended, as they have been in respect of the land in this case. Mention of a current date of expiry cannot properly enliven any implied power to impose a sunset clause under s 102.

13. Robert's and Scott's focus was on the addition, to the 1987 approval, of types of material (fol 158), and the modification Robert sought was acknowledged by the Council to be minor (fol 198), but the sunset clause had the drastic and prejudicial consequence of terminating the whole of the 1987 consent, effective 1 January 2003, and the operation of that sunset clause was not limited to the new materials nominated in the modification application.

14. I am satisfied that Benalup ought not now be followed, but I am not satisfied of the adequacy of the "nexus" between a sunset clause on the whole consent and the subject matter of the application at hand. I, therefore, do not accept that clause 14 is a valid condition.

15. Council clearly had power to impose all the other new conditions - to which neither Robert nor Scott objected - and condition 14 can and should be severed from the modification approval, and from the consent, as modified: Kent County Council v Kingsway Investments (Kent) Ltd [1971] AC 72; (1970) 68 LGR 301 at 102, Spurling v Development Underwriting(Vic) Pty Ltd [1973] VR 1; (1972) 30 LGRA 19, at 4-5; and Crichton v City of Moorabbin [1992] 2 VR 372 ('Crichton'), at 384ff. See also discussion in Aronson, Dyer and Groves, "Judicial Review of Administrative Action", 4th ed, 2009, sec.10.160ff, at pp736-7.

Procedural Fairness

1. As already noted, the respondent Council admits its duty to afford Scott procedural fairness, but disputes the scope of what that duty required in this case.

2. As noted in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, at [25], procedural fairness requires a fair process, and perhaps a hearing, but not a fair outcome. It concerns the process, not the actual decision. See also Biscoe J in Kennedy v New South Wales Minister for Planning [2010] NSWLEC 240, at [106]-[108].

3. Scott's procedural fairness claim is based on the failure of the respondent to inform Robert or himself that it was considering inserting a sunset clause, and to invite him to comment on such a proposal before Council determined to do so, thereby giving him an opportunity to be heard.

4. I respectfully endorse the summary of the principles of procedural fairness set out by Biscoe J in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 ('Calardu') at [171]-[180]. His Honour referred to important authorities including Kioa v West [1985] HCA 81; (1985) 159 CLR 550 ('Kioa'), Harvey v Minister Administering the Water Management Act 2000 [2008] NSWLEC 165; (2008) 160 LGERA 50 ('Harvey'), and Tubbo Pty Ltd v Minister Administering the Water Management Act 2000 [2008] NSWCA 356 ('Tubbo', the appeal in Harvey). A right to be informed of, and heard on, the nature and content of material adverse to a party is well established: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, and 187Kent Pty Ltd v Council of the City of Sydney [2007] NSWLEC 382.

5. In Kioa (at 584-5), Mason J described the common law duty of procedural fairness in these terms:

   "The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. ... But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly...

   Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute [i.e.] ... on 'the particular statutory framework'. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting...

   In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations...

   When the doctrine of natural justice or the duty to act fairly in its application to administrative decision-making is so understood, the need for a strong manifestation of contrary statutory intention in order for it to be excluded becomes apparent. The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case? It will be convenient to consider at the outset whether the statute displaces the duty when the statute contains a specific provision to that effect, for then it will be pointless to inquire what the duty requires in the circumstances of the case, unless there are circumstances not contemplated by the statutory provision that may give rise to a legitimate expectation. However, in general, it will be a matter of determining what the duty to act fairly requires in the way of procedural fairness in the circumstances of the case. A resolution of that question calls for an examination of the statutory provisions and the interests which I have already mentioned."

1. In Tubbo (at [54]), Spigelman CJ, in upholding Jagot J's decision at first instance (in Harvey), held that procedural fairness was required in planning matters unless the EPA Act manifested a clear intention that it was not. The question for the court is, then, what was the content of the duty (Calardu at [174]).

2. As a right of appeal is allowed under the EPA Act, in respect of conditions of approval, there is no statutory requirement for an applicant to be put on notice of a Council's consideration of conditions proposed to be imposed on approval of it. The Council communicated extensively with both Robert and Scott during the assessment of the modification application (see Exhibit C1, tabs 51-67), and says that fairness did not require a separate "hearing" regarding the possible imposition of a time limit. Tubbo does not require disclosure of a proposed conclusion unless it is of a character that could not reasonably be anticipated.

3. Jagot J recognised in King (at [114]) situations where a right of appeal is "not a complete answer to a denial of procedural fairness", but I accept that a right of appeal can normally be accepted to be adequate for the purpose of affording an applicant procedural fairness. The courts retain a discretion to grant other relief if justified in the circumstances of the case. See Fitzgerald JA in Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161, at [164].

4. The respondent contends that, as there was a right of appeal in this case and it was not exercised, there is nothing to suggest that any other relief is necessary.

5. I do not agree with that submission.

6. Robert's modification application was under consideration at Council for 15 months (July 1993-October 1994), during which time Scott took over the Greenwood operation, and submitted his own DA (August 1994). He had no notice of the offending condition which Council imposed on the modification approval (October 1994), so an appeal was not available to him for that and a number of other reasons, not least because he was neither the applicant nor his executor, but also because he was not notified of the decision.

7. Time periods were discussed with him, but not time limits. Even imposition of a time limit on any expansion of the approved range of materials was not canvassed, let alone a time limit on the entire Greenwood operation.

8. I find that, on the evidence, although the fact was not admitted by Council in its POD, Scott was known to Council to be in charge of that operation, and, without any notice, lost the full benefit of the 1987 consent. He could not reasonably have anticipated such a complication (Tubbo), was thereby denied procedural fairness, in both process and outcome, and I believe he is entitled to relief from this court.

Notification of the Decision

1. It is well established that "an approval or consent cannot be complete and efficacious until communicated to the person intended to act on it": per Gibbs J in Drummoyne Municipal Council v Lebnan (1974) 131 CLR 350, at 359; (1974) 30 LGRA 237, at 244. (See also Bignold J in Panagopoulos v Willoughby City Council (1992) 78 LGERA 270).

2. Modifications may be sought by the original applicant for consent, or by another person entitled to act on the consent (s 96(1)). In the present case, Robert was both the original applicant for consent, and the applicant for the modification, but Scott became, on Robert's death and certainly after his estate was administered, a person entitled to act on the consent. See discussion of ss 44 and 61 of what is now the P&A Act ([162]-[164] above), by Gibbs J in Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 ('Laybutt'), at 77-8.

3. As Craig J noted in Betohuwisa Investments Pty Ltd v Kiama Municipal Council [2010] NSWLEC 223; (2010) 177 LGERA 312 ('Betohuwisa'), a case, like this, brought by a successor in title to the party which made the relevant application, the EPA Act clearly requires the identification of a single legal entity with which the consent authority must deal. At the time Council concluded its assessment of the Greenwood modification, it does not appear to have had any official notification from, or dealings with, the executor of Robert's estate - the evidence shows only a communication in early 1995 (some five months after probate was granted). However, Council had been dealing with Scott, but there was no substitution of him as the applicant for the modification.

4. Scott does not dispute that the letter of 17 October 1994 was sent out by Council, but complains that it was sent to an address that did not conform with the requirements of cl 79 and s 153. Certainly, it was addressed to a person Council knew to be dead, and not even to his estate, or its executor. Council has not explained why, and speculates that the modification notice must have come to Scott's attention, because of his association with the relevant address, rendering "substantial" its compliance with the notice required.

5. The duty on Council does not extend to guaranteeing the receipt of the letter/notice - see Sisic v Rockdale City Council [2007] NSWLEC 687; (2007) 158 LGERA 170, Clark and Davis v Wollongong City Council [2008] NSWLEC 110, and Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 398.

6. Scott submits that a consent authority cannot give valid and effective notice by forwarding correspondence to a person known by it to be dead. Council has admitted that no notice, written or otherwise, was given to Scott, and he has sworn that he did not receive it, that he did not live at the address to which the notice was despatched, and that his relationship with his mother had deteriorated by that time to the extent of his taking proceedings against her, about Robert's will, while she continued to live at the relevant address (86 Myoora Road).

7. In Marrickville Metro Shopping Centre Pty Limited v Marrickville Council [2010] NSWCA 45; (2010) 174 LGERA 67 at [214]-[222], the Court of Appeal found that a failure to give notice did not lead to invalidity, because, on the facts of that case, it caused little prejudice. However, the prejudice caused in the present case is real and serious, and Scott has been forced to commence these proceedings in order continue with the business which is his livelihood.

8. Robert's modification application, in fact, contained two addresses - PO Box 248, Terrey Hills, and 86 Myoora Road, Terrey Hills. Either could properly have been regarded as the "address of the applicant for the approval". The Council's use of that second address demonstrates, in my view, compliance - I accept "strict" compliance, rather than merely "substantial" compliance - with the requirements of the Regulation and s 153 ([156]-[159] above).

9. However, Council cannot rely on that compliant notification to satisfy a duty, as a matter of fairness, to notify Scott, as the known principal at the time of the business involved.

10. Even if I am wrong in finding strict compliance, Council's failure to strictly comply with the notice requirement does not lead to invalidity. See Smith v Wyong Shire Council [2003] NSWCA 322; (2003) 132 LGERA 148, and cl 69 of the Regulation.

Abatement

1. On the ground which the Council describes as "abatement", and Scott as "lapsing", of the modification application (as distinct from the transmission of rights beyond the date of the applicant's death), the EPA Act is silent.

2. Some statutes, including the Mining Act 1992 (s 134), make specific provision for such events, but the question whether statutory rights of this kind are to survive death depends upon the intention of the legislature. There does not appear to be any general or presumptive rule; but, certainly, in Laybutt, Gibbs J took a generous view of a circumstance where a widow, who was both executor and beneficiary, purported to exercise an option granted to her husband. See also The Executor of the Estate of Terence Keith Haigh and Mary Patricia Haigh and Western Australian Planning Commission [2007] WASAT 303 ('Haigh'), the cases cited therein, and discussion at [52]-[75].

3. In Haigh, the Tribunal held that the planning proceedings abated on the death of Mr Haigh, but there is nothing in the EPA Act to suggest any legislative intention that a modification application will "abate" or "lapse" if an applicant dies prior to its determination. The fundamental starting point is that consents operate in rem, and run with the land. They are not dependent on continuation of a particular title to the land (but, on this point, see Crichton at p381.30, a case which, incidentally, identified an underlying planning justification for a time-limiting condition).

4. The Federal Court said in Stephenson v Human Rights & Equal Opportunity Commissioner (1996) 68 FCR 290, at 296-297:

   "Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a 'cause of action', as lawyers use that term, or a statutory proceeding."

5. The Council submits (par 49) that no purpose consistent with the statutory scheme in the EPA Act would be achieved by treating the modification application as a nullity because Robert died prior to its determination; and that it is not necessary for the court to determine whether the modification is properly considered as personal to Robert, or if the determination to modify the consent was never perfected because the deceased could not be given notice. When Robert died, his estate was legally able to progress the application, prosecute an appeal, and take the benefit of either.

6. Council draws attention to the operation of s 102(5) in the event of an applicant's death occurring after both approval and a grant of probate, and to the operation of Part 10, r 8 (of the Supreme Court Rules 1970, applicable at the time) regarding the right to commence an appeal in relation to dissatisfaction with the condition. Any of Robert's children could have been substituted as a party to such appeal. The Council relies on an order made, without controversy, in Hunter Wine Services Pty Ltd v Muswellbrook Shire Council [2008] NSWLEC 1390, substituting an applicant in a Class 1 proceeding, in the event of an untimely death, but that order was made, by consent, by a Commissioner, and its appropriateness at law does not appear to have been argued.

7. Once Robert died, Scott began using the land for purposes consistent with the modified consent (see Scott, par 6, and Exhibit C1, tab 61, fol 184). He managed the operation from the date of Robert's death, though ownership did not pass to him, by operation of ss 44(1) and 61 of the P&A Act, until the executor distributed Robert's estate, implementing the gift in the will (par 3 quoted in [89] above). The Council argues that the correspondence between Scott and the Council was consistent with Scott's acting as a nominated executor, as well as a beneficiary, but there is no evidence to support that contention - Council was corresponding with Scott as the known operator of the site. Likewise, there is no evidence before the court of any consultation between Council and the executor who secured probate on 8 February 1994.

8. I prefer the view that the modification application did not abate or lapse on Robert's death. The Haigh line suggests that Robert's modification application is "personal" to him, and so dies with him, but I find that inconsistent with the "in rem" nature of planning approvals, and I reject the contention that an outcome which suggests survivorship is inconsistent with the legislative scheme in the EPA Act.

Construction issues

1. The rules and principles governing the construction of consents, and their conditions, are now, after long debate, well settled. I exhaustively surveyed the authorities recently, in Quarry Products (Newcastle) Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57, and I adopt that analysis for the purposes of this judgment.

2. The PO may have contemplated operations over a wider area of the Greenwood land, but it is the planning approvals which dictate the scope of the operation, in respect of both land area and materials.

3. By its terms, the 1987 consent as modified, applies only to ML 909 (formerly ML 47). So much is clearly apparent from the plan (at Exhibit C1, tab 67, fol 197). The original 1987 consent relied upon existing use rights, and, as I have already found, those rights were and are limited to ML 47. It would, therefore, have been beyond power to grant the DC, or the later modification of it, in respect of any land other than ML 47 (Interpretation Act s32).

4. Council accepts that condition 8 could have been better drafted, but conditions are not to be construed as if they had been drafted by lawyers. They are to be construed, where possible, to give effect to their substantive intention, and to achieve practical results. Some degree of ambiguity/uncertainty in their terms will not necessarily lead to a finding of invalidity: Kendall Street Developments Pty Ltd v Byron Shire Council [2004] NSWLEC 227; Westfield Management Ltd v Perpetual Trustee Company Limited [2006] NSWCA 245; and Fokas v Kogarah RSL Club [2012] NSWLEC 136. The intention of the modification application in this case was clear - to expand, but continue to limit, the range of materials that could be imported, recycled and resold at/on the subject site.

5. The change to condition 8 is not challenged. Hence, the 1987 consent, as validly modified, is not limited to screening of imported materials for recycling of only sandstone, but now covers screening of imported materials for the recycling of sandstone, soil, masonry, and vegetation ([75] c.f. [108]). As Mr Burgess reminded the court (T3.11.11, p4, L31-p5, L7), the decision in Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 makes clear (at 324) that Council must "take the consequences of any failure to specify accurately or in detail what is consented to as well as any conditions to which a consent is subject".

6. Council contends that the consent in those terms ceased to be effective on 1 January 2003, but I reject that submission.

Conclusion

1. Having expressed my concluded views on the questions of existing use rights, the power to modify consents and impose conditions, procedural fairness, notice requirements, abatement of applications, and construction of consents and their conditions, arrangements must now be made for the further disposition of both the Class 4 and the Class 1 proceedings.

2. I, therefore, make the following orders:

   1. In respect of Matter No 40404 of 2011, the parties are directed to confer on:
   (a) orders reflecting the findings and reasons in this judgment, and
   (b) the question of the costs of the proceedings.
   2. In respect of Matter No 10405 of 2011, the order made in Chambers on 4 November 2011, adjourning the proceedings to a date seven days after delivery of this judgment, is hereby vacated.
   3. Both matters are to be listed together before me for mention, the making of any consent orders, and for any necessary directions for their further conduct, at 4pm Monday 6 August 2012.

3. The exhibits are to remain with the court files until that date.

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