Hebden Quarries Pty Ltd v Singleton Shire Council

[2022] NSWLEC 1133

Land and Environment Court

New South Wales

Medium Neutral Citation:

Hebden Quarries Pty Ltd v Singleton Shire Council [2022] NSWLEC 1133

Hearing dates:

Conciliation Conference on 14 February 2022

Date of orders:

24 March 2022

Decision date:

24 March 2022

Jurisdiction:

Class 1

Before:

Bradbury AC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification application DA236/1997.6 is approved and development consent DA236/1997 granted on 10 July 1998 for a hard rock quarry on the land described as Lots 1 and 5 DP 1012182, Pictons Lane, Hebden is modified in the terms set out in Annexure A.

(3) As a consequence of the modification, development consent DA236/1997 is subject to the consolidated, modified conditions of consent set out in Annexure B.

Catchwords:

MODIFICATION APPLICATION – hard rock quarry – modification to allow importation, storing, blending and sales of electric arc furnace slags, cement fibre board and ash with the existing quarry products – dispute about conditions imposed by Council on approval of application – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9
Land and Environment Court Act 1979, s 34

Category:

Principal judgment

Parties:

Hebden Quarries Pty Ltd (Applicant)
Singleton Shire Council (Respondent)

Representation:

Counsel:
J Farrell (Applicant)
M Caban (Solicitor) (Respondent)

Solicitors:
Minter Ellison (Applicant)
Local Government Legal (Respondent)

File Number(s):

2021/296478

Publication restriction:

Nil

JUDGMENT

1. COMMISSIONER: The Applicant appeals from the Council’s determination of its modification application DA236/1997.6 (Application) for the modification of development consent DA236/1997 granted by the Council on 10 July 1998 (Consent) to allow the importation, storing, blending and sales of electric arc furnace slags, cement fibre board and ash with the existing quarry products produced at the Hebden Quarry.

2. The Hebden Quarry is located on the land described as Lots 1 and 5 DP 1012182 Hebden Rd, Hebden (Site). The quarry sits on the boundary between the local government areas of Singleton and Muswellbrook and the Consent was granted by the Council in respect of the land within its area.

3. The Application was made to the Council on 26 February 2021. When the Application had not been determined by the Council within the period after which it was taken to have been refused, on 19 October 2021 the Applicant appealed to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act).

4. The Council subsequently determined the Application by way of conditional approval on 17 November 2021 (Determination). However, the Applicant was dissatisfied with the imposition by the Council of conditions 1 and 31 and advisory condition 3 and, by notice of motion filed on 10 December 2021, the Applicant sought leave to amend its Class 1 Application accordingly. The Court granted that leave on 17 December 2021.

5. The Court arranged a conciliation conference between the parties, pursuant to s 34 of the Land and Environment Court Act 1979 (LEC Act). The conciliation conference took place on 14 February 2022. I presided over the conciliation conference.

6. At the conciliation conference, an agreement under s 34(3) of the LEC Act was reached between the parties as to the terms of a decision in the proceedings that would be acceptable to the parties. The signed agreement was initially filed on 15 February 2022 and was supported by an Agreed Statement – Jurisdictional Pre-requisites provided by the parties on the same date. A further agreement in the same terms was filed on 9 and 21 March 2022. The agreement involves the Court making the following modifications to the Consent:

• replacing condition 1 to reinstate references to various reports which had been omitted from the condition;

• amending condition 31 of the Council’s determination, which deals with dust suppression; and

• deleting advisory condition 3.

7. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if it is a decision that the Court could have made in the proper exercise of its functions.

8. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions. I have formed this state of satisfaction for the following reasons:

1. 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 was modified, this being the test required by s 4.55(2)(a) of the EPA Act. The modifications involve the incorporation of new materials into the existing storage and blending activities carried out at the Site. The modifications do not change the development in any material way.

2. The Application does not propose the amendment of any condition imposed as a requirement of a concurrence to the Consent or in accordance with the general terms of an approval proposed to be imposed by an approvals body and accordingly s 4.55(2)(b) does not apply to the modification application.

3. The notification requirements of s 4.55(2)(c) of the EPA Act have been met. The modification application was notified for a period of 30 days between 6 May 2021 and 5 June 2021. No submissions were received by the Council and accordingly s 4.55(2)(d) does not apply to the Application.

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

10. The parties have not raised, and I am not aware of, any jurisdictional impediment to the making of these orders to give effect to their agreement. Further, in making the orders, I was not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under ss 4.55(3) and 4.15(1) of the EPA Act.

11. The Court orders that:

1. The appeal is upheld.

2. Modification application DA236/1997.6 is approved and development consent DA236/1997 granted on 10 July 1998 for a hard rock quarry on the land described as Lots 1 and 5 DP 1012182, Pictons Lane, Hebden is modified in the terms set out in Annexure A.

3. As a consequence of the modification, development consent DA236/1997 is subject to the consolidated, modified conditions of consent set out in Annexure B.

…………………………

A Bradbury

Acting Commissioner of the Court

Annexure  A (157477, pdf)

Annexure B  (234702, pdf)

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Decision last updated: 24 March 2022