Gunlake Quarries Pty Limited v The Minister for Planning and Public Spaces

[2021] NSWLEC 1333

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gunlake Quarries Pty Limited v The Minister for Planning and Public Spaces [2021] NSWLEC 1333

Hearing dates:

Conciliation conference on 6 & 31 May 2021

Date of orders:

9 June 2021

Decision date:

09 June 2021

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The application to modify State Significant Development Consent SSD 7090 (granted by the Court on 30 June 2017 in Proceedings No 108663 of 2017) to increase the truck movements and the annual quarry product transport limit is approved, subject to the conditions set out in Annexures “A” and “B” including Appendices 1 to 6.

(2) No order as to costs.

Catchwords:

MODIFICATION APPLICATION – State significant development – modification to increase truck movements and annual quarry product transport limit – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, s 4.55

Goulburn Mulwaree Local Environmental Plan 2009

Land and Environment Court Act 1979, s 34

State Environmental Planning Policy (Mining Petroleum Production and Extractive Industries) 2007, cll 7, 16

Category:

Principal judgment

Parties:

Gunlake Quarries Pty Limited (Applicant)
The Minister for Planning and Public Spaces (Respondent)

Representation:

Counsel:
A Pickles SC (Applicant)
J Reid (Respondent)

Solicitors:
Corrs Chambers Westgarth (Applicant)
NSW Department of Planning, Industry and Environment (Respondent)

File Number(s):

2020/327172

Publication restriction:

Nil

Judgment

1. COMMISSIONER: These proceedings arise following an application made by Gunlake Quarries Pty Limited pursuant to s 4.55(2) of the Environmental Planning and Assessment Act 1979 (EPA Act) to modify a development consent (SSD 7090) for a hard rock quarry granted by the Court on 30 June 2017 (the consent).

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 6 & 31 May 2021. I presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court approving the modification of the development application as proposed subject to conditions set out in Annexures “A” and “B” including Appendices 1 to 6.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under subss 4.55(2) and (3) of the EPA Act. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties explained how the jurisdictional prerequisites have been satisfied and, on that basis, I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

5. In reaching this conclusion I have had regard to the following facts and evidence.

6. On 24 September 2008, the then Minister for Planning (Minister) approved Project Approval MP 07_0074 under Pt 3A of the EPA Act for the establishment of a hard rock quarry at Marulan (Project Approval).

7. The Project Approval was subsequently modified on three occasions.

8. On 1 April 2016, the applicant submitted State significant development application SSD 7090 seeking approval for the extension of the existing quarry under Pt 4 of the EPA Act (Extension Project Application). This was a separate application and not a modification to the Project Approval for the existing quarry.

9. On 5 April 20217, the former Planning Assessment Commission refused the Extension Project Application.

10. The applicant appealed to the Land and Environment Court and on 30 June 2017, the parties entered into an agreement pursuant to s 34 of the Land and Environment Court Act 1979 and SSD 7090 was approved by the Court.

11. The consent permits:

1. development of a hard rock quarry as an extension of the existing quarry footprint (Gunlake Quarry);

2. transporting up to 2 million tonnes per annum (Mtpa) of saleable products by road;

3. transporting quarry products by truck via two approved transport routes (the Primary Transport Route and the Secondary Transport Route);

4. overburden emplacements;

5. supporting infrastructure;

6. 24-hour crushing and proceeding; and

7. blasting.

12. On 6 August 2018, the Project Approval was surrendered.

13. On 17 November 2020, pursuant to s 4.55(8) of the EPA Act, the applicant applied to the Court to modify the consent under s 4.55(2) of the EPA Act (MOD 2 Application).

14. The MOD 2 Application seeks to increase the truck movements and the annual quarry product transport limits.

Environmental Planning and Assessment Act 1979 (NSW) requirements

Section 4.55

15. The parties submit that the requirements under subss 4.55(2) and (3) have been satisfied. The provisions state:

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c) it has notified the application in accordance with—

(i) the regulations, if the regulations so require, or

(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

16. The proposed modification of the existing consent may be summarised as follows:

1. amend Condition 7 to allow 2.6 million tonnes of quarry product to be transported per annum instead of 2 million tonnes;

2. amend Condition 9 to allow for the limit of truck movements on the Primary Transport Route to be an average of 220 inbound and 220 outbound instead of a total daily average of 370 trucks;

3. amend the averaging period in Condition 9 from each calendar month to 3-monthly;

4. amend Condition 9 to allow a maximum of 295 inbound and 295 outbound truck movements on any given day instead of a maximum of 490 trucks; and

5. no change to the number of movements on the Secondary Transport Route.

17. The parties submit that the Court can be satisfied that “…the development as proposed to be modified is substantially the same development as that for which consent was originally granted” because the alteration to the annual quarry transportation from 2 million tonnes of quarry products to 2.6 million tonnes is achieved without changing the footprint of the quarry and the change to the average daily number of truck movements, the averaging period and the daily limits, while different, will not radically alter the development from that approved. Following a consideration of the originally approved development and the development after the proposed modification, I accept that to be the fact.

18. The Respondent confirms that the MOD 2 Application was:

1. publicly exhibited between 14 January 2021 to 5 February 2021; and

2. notified to members of the public who had made submissions in relation to the Extension Project Application and landowners of properties adjoining the Primary Transport Route.

19. The applicant served on the Respondent a Response to Submissions prepared by EMM (on behalf of the applicant) and dated March 2021, addressing the public submissions made including those made by TfNSW and Goulburn Mulwaree Council (Council).

20. The Respondent confirms that it notified the members of the public who made submissions in relation to the MOD 2 Application, TfNSW and Council by email on 9 April 2021 and invited those third parties to make further submissions.

21. I also understand that there were no reasons given for the grant of the consent when the s34 Agreement was approved by the Court viz. s 4.55(3).

State Environmental Planning Policy (Mining Petroleum Production and Extractive Industries) 2007 (Extractive Industries SEPP)

22. To the extent that it applies to a modification application, the parties agree, and I accept, that the development as modified will be characterised as an extractive industry which is permissible with consent in accordance with cl 7(3)(a) of the Extractive Industries SEPP. Clause 7(3)(a) permits the carrying out of an extractive industry with development consent on land on which development for the purposes of agriculture or industry may be carried out (with or without development consent). Development for the purpose of both agriculture and industry is permissible with consent on the quarry site (which is zoned RU1 Primary Production and RU2 Rural Landscape) under the provisions of the Goulburn Mulwaree Local Environmental Plan 2009 (Goulburn LEP). However, as the modification application does not involve a change to the footprint or operations of the extractive industry except in respect of transport, none of the matters in Part 3 are relevant to the application except cl 16.

23. Clause 16 of the Extractive Industries SEPP provides that where a consent for development to which the SEPP applies involves the transport of materials, the consent authority must consider whether or not the consent should be issued subject to conditions that do any one or more of the following:

1. require that some or all of the transport of materials in connection with the development is not to be by public road,

2. to limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools,

3. require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads.

24. Based on the documentation before the Court, I am satisfied that the application was referred to the relevant roads authorities for comment in accordance with cl 16(2).

Section 4.15

25. The parties have taken into consideration such of the matters referred to in s 4.15(1) of EPA Act as are of relevance and as set out in Section 4 of the Statement of Environmental Effects Prepared by EMM dated November 2020 including the relevant provisions of the:

1. Goulburn LEP; and

2. Extractive Industries SEPP.

26. I note that the Respondent is satisfied that the modification application, as modified, if carried out in accordance with the agreed set of conditions marked Annexure “A” to the agreement between parties, will not have any unacceptable environmental impacts.

27. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

28. The Court orders that:

1. The application to modify State Significant Development Consent SSD 7090 (granted by the Court on 30 June 2017 in Proceedings No 108663 of 2017) to increase the truck movements and the annual quarry product transport limit is approved, subject to the conditions set out in Annexures “A” and “B” including Appendices 1 to 6.

2. No order as to costs.

……………………

S Dixon

Senior Commissioner of the Court

Annexure A (192319, pdf)

Annexure B (1923818, pdf)

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Decision last updated: 09 June 2021