Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council - [2019] NSWCA 147

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147
Hearing dates: 6 – 9 May 2019
Date of orders: 20 June 2019
Decision date: 20 June 2019
Before: Basten JA at [1];
Gleeson JA at [224];
Preston CJ of LEC at [225]
Decision:
1.   Subject to order 2, dismiss the appeal.

2.   Order that:

A.   With respect to lots 5 and 6, DP 242210 (“the land”):

(1)   Set aside declarations (1) and (2) made in the Land and Environment Court and in place thereof:

Declare that the consent to development application 171/90/79 granted by Dungog Shire Council (“the consent”) permitted use of the land only as a quarry primarily for the purpose of winning material for railway ballast, in breach of which the appellants have since 2012 used the land otherwise than primarily for winning railway ballast, in breach of the Environmental Planning and Assessment Act 1979 (NSW) (“the Planning Act”), s 4.2(1)(a).

(2)   Set aside declaration (4) and order (5) made in the Land and Environment Court.

(3)   Set aside declaration (6) made in the Land and Environment Court and in place thereof:

Declare that the consent did not extend to the excavation of rock on lot 6, DP 242210 and that the activity of the appellants in extracting rock from lot 6 is carried out without development consent and in contravention of s 4.2(1)(a) of the Planning Act.

(4)   Set aside declaration (8) and order (9) made in the Land and Environment Court.

(5)   Set aside declaration (10) made in the Land and Environment Court and in place thereof:

Declare that –
(i)   condition (vi) of the consent prevents the appellants permitting the transport of greatly more than 30% of the products of the quarry by public road on an annual basis without the specific approval of Dungog Shire Council;
(ii)   condition (vi) applies to rock excavated from the land the subject of the consent, whether processed and dispatched by public road from that land or from adjoining land, including lot 1, DP 1006375; and
(iii) the appellants, in transporting in excess of 80% of quarry products by road since 2012 have been and continue to be in breach of condition (vi), and therefore in breach of s 4.2(1)(b) of the Planning Act.

(6)   Set aside orders (3), (7) and (11) made in the Land and Environment Court and in place thereof:

Order that the appellants by themselves, their employees, agents and assigns, be restrained from:

(a)   using the land otherwise than as a quarry primarily for the purpose of winning railway ballast; and

(b) excavating rock on lot 6 DP 242210 without a consent granted for such activity under the Planning Act; and

(c)   permitting the transport of greatly more than 30% of the quarry products derived from rock excavated from the land, and whether processed on the land or on adjoining land, including lot 1, DP 1006375, by public road on an annual basis without the specific approval of Dungog Shire Council.

(7)   Set aside declarations (12), (14), (16) and (18) and orders (13), (15), (17) and (19) made in the Land and Environment Court.

(8)   With respect to processing on lot 5, set aside declaration (20) and order (21) made in the Land and Environment Court.

B.   With respect to Environment Protection Licence No 1378:

(9)   Set aside declaration (22) and order (23) made in the Land and Environment Court, and in place thereof:

Set aside the determination of the Environment Protection Authority set out in the Notice of Variation No 1071585, dated 2 April 2007, varying EPL 1378 to permit the extraction of between 500,000 tpa and 2 million tpa from the land.

C.   Stay of orders:

(10)   Subject to further order of this Court or the Land and Environment Court, and subject to the conditions set out below, stay order (6) for a period of three months from the date of this judgment, or until

(a)   the determination of the State significant development application lodged by the appellants with respect to the land, and
(b)   the grant of any further licence or authority required to carry out further works by way of extractive industry on the land,

whichever is the earlier.

Conditions of stay

The stay is subject to the following conditions:

(1)   All operations conducted at or on the land the subject of the consent, and adjoining land, including lot 1, DP 1006375, on which processing activity is undertaken with respect to rock excavated from the land, shall be carried out in accordance with the interim Environmental Management Plan annexed to the judgment of the Land and Environment Court.
(2)   The applicants for State significant development consent take all necessary and reasonable steps to ensure the expeditious determination of that application.
(3)   If and to the extent any steps are required to be taken for the enforcement, variation or termination of the stay, otherwise than by agreement of the parties to these proceedings, application may be made for that purpose to the Land and Environment Court, to which these proceedings shall be deemed to be remitted for that purpose.
3.   Order that the appellants pay the Council’s costs of the appeal.
Catchwords:
ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional

ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately

ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road

ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions

ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights
ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58
Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), ss 4, 29, 30, 31, 33, 76, 76A, 77, 84, 86, 87, 88, 90, 91, 91A, 92, 93, 95, 98, 104, 107, 109, 119, 158
Local Government Act 1919 (NSW), s 342U
Pollution Control Act 1970 (NSW), ss 42, 48; Ch 3, Sch 1
Protection of the Environment Operations Act 1997 (NSW), ss 7, 45, 50, 58, 59, 133, 134, 162, 165; Sch 1, cl 19; Sch 5, Pt 3, cl 4
Supreme Court Act 1970 (NSW), s 69

Environmental Planning and Assessment Regulation 1980 (NSW), cll 26, 34, 41B, 44, 45, 50, 70, 73; Schs 3, 4
Environmental Planning and Assessment Model Provisions 1980, cll 5, 35, Sch 1
Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439
Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182
Auburn Municipal Council v Szabo (1971) 67 LGRA 427
Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100
Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Currey v Sutherland Shire Council (1998) 100 LGERA 365
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3
Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33
GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256
Helman v Byron Shire Council (1995) 87 LGERA 349
Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99
Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] 679 HCA 20
Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277
Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252
Mison v Randwick Municipal Council (1991) 23 NSWLR 734
Norman v Council of the Shire of Gosford (1975) 132 CLR 83; [1975] HCA 15
Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189
Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21
Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632
Pselletes v Randwick City Council (2009) 77 NSWLR 287; [209] NSWCA 262
Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321
Sansom v Port Stephens Council [2006] NSWLEC 475; 147 LGERA 203
Sericott v Snowy River Shire Council [1999] NSWCA 480; 108 LGERA 66
Stebbins v Lismore City Council (1988) 64 LGRA 132
Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59
Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8
Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158
Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5
Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74
Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508
Woolworths v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited: NSW Government Gazette No 90, 9 July 1965, p 2168
Category: Principal judgment
Parties: Hunter Industrial Rental Equipment Pty Ltd (First Appellant)
Buttai Gravel Pty Ltd (Second Appellant)
Dungog Shire Council (First Respondent)
Environment Protection Authority (Second Respondent)
Representation:
Counsel:
T F Robertson SC/J E Lazarus/J Walker (Appellants)
T G Howard SC/C M Novak (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
DWF Australia (Appellants)
Coutts Mallik Rees Lawyers (First Respondent)
Environment Protection Authority (Second Respondent)

File Number(s): 2018/344439
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 4

Citation:

[2018] NSWLEC 153

Date of Decision:

12 October 2018

Before:

Molesworth AJ

File Number(s):

2016/149935

headnote

[This headnote is not to be read as part of the judgment]

From around 1915, the State Rail Authority (“SRA”) operated the Martins Creek Quarry, near the town of Paterson in the Hunter Valley region. When, in about 1991, the andesite rock was fully exploited, the SRA obtained a further area of land, known as the western land. The quarry constituted a designated development for which an environmental impact statement (“EIS”) was required. The SRA sought consent to operate a quarry on the western land primarily for obtaining railway ballast. The respondent Council granted consent subject to a number of conditions. A plan and an environmental impact statement submitted with the development application indicated that the quarrying would take place on a particular lot. After extraction, processing of the rock extracted was to occur on the adjoining eastern land, being the site of the old quarry.

In 2007 the SRA (then RailCorp) obtained a variation of an environment protection licence granted by the Environment Protection Authority (“EPA”), permitting the extraction of 2 million tonnes per annum, an increase from 500,000.

In 2012 the appellants acquired and commenced to operate the quarry. Thereafter the Council claimed that the quarrying operation was no longer primarily for obtaining railway ballast. The Council also claimed the area of land used for quarrying, the volume of material extracted and the number of trucks driving through Paterson exceeded the scope of the development for which consent had been granted.

The Council initiated proceedings in the Land and Environment Court seeking declarations and injunctive relief. The primary judge found that the appellants were extracting rock other than primarily for railway ballast, quarrying beyond the area to which the consent applied, dispatching a greater percentage of material by road than was allowable and impermissibly processing rock on the western land. The judge also found that the variation to the environment protection licence by the EPA was impermissible as the relevant statutory provisions had not been complied with. Orders were made to that effect, and a conditional stay was granted.

The issues on appeal were whether:

(1) existing use rights qualified the effects of the 1991 consent;

(2) the grant of the consent was valid and conditional;

(3) to construe the consent the court could refer to the application and the EIS;

(4) the consent had been breached, specifically in relation to:

(i) the limiting purpose;

(ii) the area of the quarry;

(iii) the volume of material extracted from the quarry;

(iv) condition (i), relating to the amenity of the neighbourhood; and

(v) condition (vi), requiring not greatly more than 30% of the quarry output to be transported by road.

(5) the 2007 variation of the environment protection licence was invalid; and

(6) the conditional stay ordered by the primary judge was appropriate.

The Court (Basten JA, Gleeson JA and Preston CJ of LEC), varying the orders but otherwise dismissing the appeal, held:

(Basten JA; Gleeson JA and Preston CJ agreeing)

In relation to issue (1):

1. The existing use rights were in relation to the operation of a quarry primarily for the purpose of winning railway ballast, rather than the operation of a general quarry. As such, the existing use rights terminated prior to the appellant taking control of the quarry, when the railway undertaking ceased: [30], [224], [265].

In relation to issue (2):

2. While the Council’s initial resolution had purported to approve the development application without receiving the SRA’s written approval, contrary to s 91A of the Environmental Planning and Assessment Act 1979 (NSW), such approval was subsequently provided in correspondence so as to render the consent valid and conditional: [45], [224], [265].

In relation to issue (3):

3. Use of the material on the statutory register of consents in construing a development consent is not inconsistent with the proposition that a consent has an enduring function which runs with the land: [56], [224], [265].

Environmental Planning and Assessment Act 1979 (NSW), ss 50, 91, 92, 93, 104

Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, applied.

(Per Preston CJ of LEC):

4. The statutory scheme, including the classification of development, process of application, provision of environmental impact statements, public notice and determination, indicates a central relationship between the development consent and development application: [295].

Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76, 77, 84, 86, 90, 91, 93, 95, 104.

Environmental Planning and Assessment Regulation 1980 (NSW), cll 37, 38, 39, 44, 45, 70; Sch 3.

(Per Basten JA; Gleeson JA and Preston CJ agreeing):

5. It is generally permissible to have regard to the development application and an EIS to determine the scope and nature of the proposed development for which consent was sought: [59], [62], [224], [310].

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 ; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189; Sericott v Snowy River Shire Council [1999] NSWCA 480; 108 LGERA 66; Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74, applied.

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277; Stebbins v Lismore City Council (1988) 64 LGRA 132, considered.

Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321, not followed.

In relation to issue (4)(i):

6. The terms of the consent and surrounding circumstances indicated that there was a limiting purpose, namely that the development was a quarry for “winning material primarily for railway ballast”: [88], [224], [265].

Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] 679 HCA 20, distinguished.

7. While a quarry “primarily” for railway ballast permitted some flexibility, as less than 10% of the output had been for railway ballast since the appellants took control of the quarry the limiting purpose had been breached: [104], [224], [313].

In relation to issue (4)(ii):

8. The plan attached to the environmental impact statement established that quarrying was to take place only on lot 5, with a haul road on lot 6, and the primary judge was correct in limiting the quarry operation to this area: [121], [224], [312].

(Per Preston CJ of LEC)

9. While the processing of rock which was unlawfully extracted would in itself be unlawful, the orders accommodate the processing of lawfully extracted rock: [316].

(Per Basten JA; Gleeson JA and Preston CJ of LEC agreeing)

In relation to issue (4)(iii):

10. The material in or attached to the environmental impact statement did not constrain the volume of resources which may be extracted from the quarry, and to the extent that the primary judge implicitly made orders on that basis they should be reformulated or set aside: [118], [224], [334].

In relation to issue (4)(iv):

11. As no order expressly addressing a breach of condition (i) was sought, it was unnecessary to consider the effect of the quarry on the neighbourhood’s amenity beyond that required by condition (vi): [124], [224], [322].

In relation to issue (4)(v):

12. That condition (vi), requiring the quarry operator to not permit greatly more than 30% of quarry product to be transported by road, applied to product dispatched from the eastern land as the operator was required to comply with conditions imposed in the consent for its extraction on the western land: [135], [224], [265].

13. The existing use rights applicable to the eastern land did not negate the effect of condition (vi), as it bound the operator of the quarry on the western land to not permit excessive quantities to be transferred by road: [138], [224], [325].

14. The correspondence and agreements relied upon to demonstrate that the Council had approved a variation to or waived compliance with condition (vi) did not satisfy the Court that such an event had occurred: [165], [224], [326].

(Per Preston CJ of LEC)

15. There is no utility in making orders to address a contravention of condition (vii), which provided that the operator must ensure all requisite environmental safeguards were enforced, as the environmental safeguards do not add to the requirements within the development consent: [331], [332].

In relation to issue (5):

(Per Basten JA; Gleeson JA and Preston CJ of LEC agreeing)

16. Sections 50(2) and 58(6) of the Protection of the Environment Operations Act 1997 (NSW) imposed factual conditions on the exercise of the power to vary the licence; these constituted jurisdictional facts to be determined by the judge rather than the opinion of the EPA: [186], [224], [339], [340].

Protection of the Environment Operations Act 1997 (NSW), ss 7,50, 58; Sch 1.

Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100; Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5; Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8; Woolworths v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422, considered.

17. The primary judge was correct in upholding the licence variation as invalid on the basis that the jurisdictional facts had not been satisfied (for s 50(2)) or had been satisfied (for s 58(6)): [194], [204], [224], [339], [343].

In relation to issue (6)

18. As the appellants did not place additional evidence before the Court to demonstrate a change of circumstances, the challenge to the discretion of the primary judge should be refused subject only to the reformulation of the orders: [219], [224], [344], [347].

Judgment

BASTEN JA:

Index

Par

A

Background

1

B

Present litigation

9

C

History of planning controls

17

(1)

Planning instruments

17

(2)

Existing use rights

26

D

Quarrying on the western land: the 1991 consent

35

(1)

Terms of consent

35

(2)

Whether consent valid and unconditional

43

(3)

Construing the 1991 consent

46

(a)

Statutory scheme

46

(b)

Reference to development application and environmental impact statement

57

(c)

Conclusions as to scope of relevant material

62

(d)

Case law

68

(4)

Alleged breaches of 1991 consent

81

(a)

Limitation by reference to purpose

81

(b)

Finding as to breach of limiting purpose

97

(c)

Extraction of material from lots 5 and 6

106

(d)

Quarrying on lot 6

119

(e)

Alleged breach of condition (i)

122

(f)

Alleged breach of condition (vi)

125

(i)

Did condition (vi) purport to apply to eastern land?

130

(ii)

Inconsistency with existing use rights

137

(iii)

Subsequent approval of varied proportion

142

(iv)

Conclusions – condition (vi)

165

E

Environment protection licence

166

(1)

Background

166

(2)

Legislative regime for licence variation

173

(3)

Grounds of review

174

(4)

Assessment of preconditions

187

(a)

Relevance of EPA’s opinion

187

(b)

Challenge to factual determination – s 50(2)

192

(c)

Challenge to factual determination – s 58(6)

195

F

Conclusions

205

G

Discretion

213

H

Costs

222

I

Orders

223

A Background

The appellants operate a quarry, known as the Martins Creek Quarry, near Paterson in the Hunter Valley region. In October 2018 Dungog Shire Council obtained orders in the Land and Environment Court restraining the current operations on the basis that they were in breach of the consent obtained under the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act). [1] This appeal challenges those orders.
1. Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153; 234 LGERA 1.
Paterson is a small town on the Paterson River, a northern tributary of the Hunter River. It lies some 25km north of Maitland on the central coast. About six kilometres north of Paterson a large deposit of andesite rock was discovered more than a century ago. Because the rock was suitable for railway ballast, in 1914 the State appropriated land for the purposes of the quarry. The Martins Creek Quarry was opened in 1915 to exploit the deposit. A branch rail line allowed the rock to be transported from the quarry.
The land subject to the first quarry lay to the east of the rail siding and to the east of a dedicated road known as Station Street (the eastern land). The bulk of the eastern land (being Crown and private land) was appropriated and resumed and vested in the Deputy Chief Commissioner for Railways and Tramways in February 1914, “for the purpose of maintaining the traffic on the existing line of railway between West Maitland and Taree”. That land was augmented by further acquisitions in 1952, 1958, 1963, 1975 and 1980. The first three notifications identified the public purpose as “for a stone quarry at Martin’s Creek … for the use of the railways”; the fourth referred to “the extension of quarry operations at Martins Creek” and the last “in connection with ballast quarry purposes”.
In 1979 a geological investigation was undertaken of an area to the west of Station Street, adjoining the existing quarry, which located a further large deposit of andesite on privately owned land. The State Rail Authority (SRA) obtained leases over three parcels of land, being identified as lots 5 and 6 of DP 242210 (the western land) and lot 42 of DP 815628 (which was not within the development application the subject of these proceedings). On 8 August 1990, the SRA lodged with the Dungog Shire Council an application for consent to develop the western land.
The application concerned designated development under the Planning Act, thereby requiring an accompanying environmental impact statement, pursuant to s 77(3)(d) of the Planning Act, as then in force. [2] The contents of such a statement were identified in cl 34 of the Environmental Planning and Assessment Regulation 1980 (NSW) (1980 Regulation). Further, notice was required to be given to occupiers of adjoining land and others who might be detrimentally affected by the development if carried out: s 84(1). These steps were taken. An “Environmental Impact Statement for proposed Railway Ballast Quarry at Martins Creek”, dated 26 July 1990, (EIS) was prepared for the SRA and lodged with the development application. In addition, because the SRA was a prescribed person for the purposes of s 91A(1) of the Planning Act, [3] conditions could not be imposed without its written approval, nor could the Council refuse consent without the written approval of the Minister. [4]
2. Reference to provisions of the Planning Act, unless otherwise indicated, are to the Act as in force in 1991.
3. Regulation, cl 41B(1)(a).
4. Planning Act, s 91A(1).
On 12 February 1991 the Council granted consent, subject to conditions. The SRA was given notice of the determination by a letter dated 7 March 1991. There followed correspondence in relation to the conditions, prior approval of which had not been obtained from the SRA. Agreement was subsequently reached and amended conditions were approved by the Council at a meeting on 14 May 1991. It was common ground in this Court that the SRA had consented to the conditions between March and May 1991; however, the appellants challenged the legal conclusion that the resolution of 14 May 1991, which did not purport to redetermine the development application, amounted to a valid consent. [5] The consequence, the appellants contended, was that the consent given on 12 February 1991 was unconditional. Subject to resolution of this issue, it is convenient to refer to the consent as “the 1991 consent”.
5. Tcpt, 08/05/19, p 151(15)-(25).
In 2009 RailCorp (a successor to the SRA) announced that the quarry was no longer needed for railway operations and foreshadowed its intention to sell its assets. In 2012 RailCorp sold its interests in the various parcels of land on which quarrying was taking place, to the first appellant, Hunter Industrial Rental Equipment Pty Ltd. The second appellant, Buttai Gravel Pty Ltd, was an associated entity of the first appellant and was responsible for conducting the day-to-day quarrying operations.
There were other steps taken of less importance, which will be noted as occasion arises. Further, there were, over the decades of the operation of the quarry, significant changes in (i) the volume of rock extracted, (ii) the purposes for which it was used and (iii) the proportion of the quarry products dispatched by road, as opposed to rail. These factual matters will be addressed in the context of their relevance to the grounds of appeal.

B Present litigation

On 30 March 2015 the first respondent, Dungog Shire Council, commenced proceedings by way of summons in the Land and Environment Court against the appellants and the Environment Protection Authority (EPA). The summons in fact incorporated two entirely separate sets of proceedings: the first set sought to restrain the appellants from carrying out what were alleged to be extensive breaches of the Planning Act; the second involved judicial review proceedings of a decision of the EPA to vary a licence issued to the appellants which authorised the level to which the appellants were entitled to carry out their quarrying and crushing operations on the whole of the lands. In the judicial review proceedings, the judge declared that the variation was invalid and granted an injunction restraining the appellants from carrying on “scheduled activities” at a rate exceeding 500,000 tonnes per annum (tpa). The challenge to these orders will be addressed separately and after dealing with the civil enforcement proceedings under the Planning Act.
The civil enforcement proceedings under the Planning Act sought declarations and injunctions with respect to numerous alleged breaches of the Act. Separate allegations were made with respect to the western and the eastern lands. Those relating to the western land sought to identify breaches of the 1991 consent; those relating to the eastern land accepted that the area enjoyed existing use rights but asserted that there had been an enlargement, expansion or intensification of the relevant uses from 5 February 1986, when such steps were no longer permitted without planning consent. The primary judge accepted all the Council’s complaints with respect to the use of the eastern land and made declarations and injunctions accordingly.
With respect to the western land, the Council alleged contraventions of the following requirements of the 1991 consent, namely:

extracting rock otherwise than “primarily for railway ballast”;

undertaking quarrying beyond an area of some 10ha on lot 5, identified on a document known as “Plan 2”;

extracting a volume of more than 300,000 tonnes per annum;

dispatching greatly more than 30% of the annual production by road;

dispatching more than 12 truckloads per day by road and more than 80,000 tonnes per annum by road, and

undertaking processing on lot 5.

The primary judge did not accept that the consent was subject to volumetric limits and hence rejected the Council’s claims identified at (3) and (5) above. He made declarations and granted injunctions with respect to the other matters.
In their defence, the appellants denied that their operations, in so far as they were regulated by the 1991 consent, were restricted in the manner alleged by the Council. They further submitted that the conditions of the 1991 consent could not constrain the existing use rights enjoyed by operations on the eastern land, from which the products of the quarrying on the western land were dispatched. In the alternative, to the extent that the Council contended that the proportion of quarry products shipped by road exceeded the proportion permitted under the 1991 consent, the increase was said to be justified by approval given by the Council by conduct.
The issues raised on the appeal covered the following topics:

scope and operation of the 1991 consent;

scope and effect of existing use rights on the eastern lands;

whether the conditions of consent were varied or subject to approval after 1991, and

the validity of the variation of the licence issued by the EPA.

For reasons set out below, the primary judge did not err in granting the Council the principal relief sought with respect to breaches of the Planning Act involving the quarrying activities carried out on the western land. Although no extractive operations are now conducted on the eastern land, most of the crushing and processing of rock quarried on the western land continues to be undertaken with plant situated on the eastern land. Subject to one qualification concerning the operation of a tertiary processing plant, the appellants have no current development consent relating to operations on the eastern land. Because the only activities carried out on the eastern land since about 1993 have been the processing of rock excavated from the western land, if that source is not lawfully available, no separate issue arises as to the processing operations, nor as to the limits of the existing use rights on the eastern land. Those rights will be discussed to the extent necessary to address the appellants’ submissions that the processing and dispatch of quarry products on and from the eastern land were governed solely by existing use rights, and not by the terms of the 1991 consent which related only to the western lands.
Bearing the limited purpose in mind, it is convenient to commence with an outline of the history of planning controls applicable to the eastern land.

C History of planning controls

(1) planning instruments

The first planning controls to affect the quarry were, the parties agreed, the Interim Development Order No 1 – Shire of Dungog (IDO No 1), made under the Local Government Act 1919 (NSW). Power to make interim development orders was conferred on the Minister by the Local Government Act, s 342U. That section provided that “nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order”: s 342U(4). IDO No 1 came into force, subject to that proviso, on 12 May 1967. The use of the eastern land as a quarry was protected by the proviso.
IDO No 1 adopted certain “model provisions” promulgated on 9 July 1965. [6] Clause 2(1) of the 1965 model provisions read as follows:
6. NSW Government Gazette No 90, 9 July 1965, p 2168.

2.   The following development may be carried out notwithstanding the provisions of the Interim Development Order:-
(1)   the carrying out by persons carrying on public utility undertakings, being railway undertakings, on land comprised in their undertaking, of any development required in connection with the movement of traffic by rail, including the construction reconstruction, alteration, maintenance and repair of ways, buildings, works and plant, except –
(a)   the construction of railways, railway stations and bridges over roads;
(b)   the erection of any buildings outside the limits of a railway or railway station;
(c)   the recreation within the limits of a railway station, but not wholly within the interior of a station, of residential buildings, offices or buildings … to be used for manufacturing or repairing works;
(d)   the construction or alteration of buildings outside the limits of a railway or railway station and the reconstruction or alteration, so as materially to affect the design or external appearance thereof, of railway stations or bridges or of residential buildings, offices or factory buildings within the limits of a railway or railway station, but not wholly within the interior of a station;
(e)   the formation or alteration of any means of access to a road.

The appellants asserted that the operation of the quarry by the SRA in 1967 (and thereafter) constituted a “railway undertaking” for the purposes of cl 2(1) of the model provisions.

Following the commencement of the Planning Act on 1 September 1980, the Minister, on 26 September 1980, made and published model provisions for environmental planning instruments, pursuant to s 33 of the Planning Act (the 1980 model provisions).
On 29 May 1981 the Minister made the Dungog Local Environmental Plan No 1, which repealed IDO No 1 and, in part, adopted the 1980 model provisions: cl 5(3). Clause 35 of the 1980 model provisions stated:

35   Nothing in the Local Environmental Plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit –
(a)   the carrying out of development of any description specified in Schedule 1;
….
SCHEDULE 1
1.   The carrying out by persons carrying on railway undertakings on land comprised in their undertakings of –
(a)   any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant; and
(b)   the erection within the limits of a railway station of buildings for any purpose,
but excluding –
(c)   the construction of new railways, railway stations and bridges over roads;
(d)   the erection, reconstruction and alteration of buildings for purposes other than railway undertaking purposes outside the limits of a railway station and the reconstruction or alteration so as materially to affect the design thereof, of railway stations or bridges;
(e)   the formation or alteration of any means of access to a road; and
(f)   the erection, reconstruction and alteration of buildings for purposes other than railway purposes where such buildings have direct access to a public place.

The wording of cl 35 was not identical with its counterpart in the 1965 model provisions incorporated in IDO No 1, but the appellants asserted the operation of the quarry continued to be exempt from planning controls as a railway undertaking.
In a number of cases dealing with the existing use provisions in force prior to 1986, the High Court held that where land could be regarded as a “unit” and where part of it was in use for a particular purpose, the whole of the land was treated as having been used for that purpose prior to the relevant planning instrument coming into effect. [7] The physical use of the land could therefore be expanded or intensified without the need for planning consent. That situation was changed with the commencement, on 3 February 1986, of amendments to provisions in the Planning Act. Those provisions amended ss 107 and 109 to require consent for alterations or extensions of works which otherwise constituted existing uses. To the extent the railway undertaking, and now the appellants, relied upon these existing use provisions, the level of activity permitted without consent therefore crystallised on 3 February 1986.
7. Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21; Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33; Norman v Council of the Shire of Gosford (1975) 132 CLR 83; [1975] HCA 15.
The exemption for railway undertakings ceased with the adoption of the Dungog Local Environmental Plan 2014. However, the appellants accepted that the land ceased to be used as a railway undertaking, either in 2009 when RailCorp announced that the quarry was no longer needed for its purposes, or in 2012 when it sold its assets to the first appellant. At a date no later than 2012, the eastern land became the subject of planning controls, and the existing use rights crystallised.
These provisions thus gave rise to two questions, namely whether, and if so for how long, the operation of the quarry constituted a “railway undertaking” for which consent was not required; and secondly, the point in time at which the use crystallised as an existing use.
No quarry existed on the western land before the commencement of the Planning Act; subject to the appellants’ submission that the processing and dispatch of rock always took place on and from the eastern land, the earlier history of planning controls was not relevant to the western land.

(2) Existing use rights

For reasons explained below, the existing use rights attaching to the eastern land do not govern the scope and nature of the activities which the appellants currently conduct on either the eastern or western lands. However, because orders were made based on those rights, which were challenged on the appeal, it is convenient to address the submissions as to the content of those rights in outline.

As noted above, existing use rights may generally be taken to have been frozen at two dates, namely as to the nature of the use, when planning controls first prohibited such activities on the land, either absolutely or subject to consent; and, as to scope and intensity of the use, in February 1986 when the Planning Act was amended to require consent with respect to the extension or enlargement of such rights. However, the appellants submitted that they were not subject to any prohibition on development without consent whilst the quarry on the eastern land constituted a railway undertaking, and was therefore exempt from any consent requirement.
The appellants did not contend that the operation of the quarry by the SRA on the western land involved a “carrying on railway undertakings”, so as to be exempt from planning controls. They accepted that consent was required for the development of the quarry on the western land. [8] The contention was limited to the eastern land, all of which, when used for both excavation and processing, had been resumed for “railway purposes”. The appellants submitted that the eastern land ceased to be used for a railway undertaking upon its sale in December 2012 or, if that were not accepted, December 2009 when, in the course of negotiations with the Council in relation to the dispute over the level of extraction and the dispatch of material by road, RailCorp issued a press release announcing its intention to sell the quarry “because the ballast produced at the site is surplus to its needs.”
8. Tcpt, 07/05/19, p 111(38)-(46).
If the subjective intention of RailCorp were the relevant criterion, it should be accepted that the land had ceased to be used for a railway undertaking at least by December 2009. If one were to look at railway ballast as a proportion of the total output from the quarry, after remaining stable between 75% and 85% from 1968 to 1988, it commenced a slow decline, falling below 50% in 1995 and below 30% in 1997 (26%). Thereafter it never exceeded 25%.
However, the appellants contended that, even if the quarry were not being operated primarily for the production of railway ballast, it did not necessarily cease to be the carrying on of a railway undertaking. Although it may be accepted that the characterisation of the undertaking being carried on did not necessarily define the existing use right, it did not follow that there might not be a material connection between the railway undertaking and the existing use right. In other words, the fact that exemption from the planning laws depended upon the carrying on of a railway undertaking would at least be consistent with the definition of the existing use right as being primarily for obtaining railway ballast, rather than the operation of a general quarry. On that basis the existing use right terminated when that purpose ceased.
If the carrying on of a railway undertaking continued after 1997, nothing much turns upon whether the relevant date was 2004, 2009 or 2012. In both 2004 and 2012 annual extraction rates were running in the order of 800,000 tpa; between 2004 and 2011 they were running at variable rates between 600,000 and 800,000 tpa. However, prior to 1999 the relevant volumes were between 200,000 and 400,000 tpa.
The relevance of these figures depends on the relevant use. On the one hand, if the relevant existing use were extraction, that ceased on the eastern land in about 1993. In February 1986 it appears that the volume being extracted was a little above 200,000 tpa and in 1993 it was approximately 400,000 tpa. By 1997 the volume had fallen below 300,000 tpa, but the rock was then being extracted from the western land. For the purposes of an extractive use, the appellants obtain no benefit from a date after February 1986; since no extraction now takes place on the eastern land, there is no extant use for that activity.
If, on the other hand, the relevant existing use involved processing operations and dispatch of quarry products, the benefits of a later date were considerable. For example, the volume processed to a finished product in 1986 was 245,000 tpa; the relevant figure in 2009 was 633,000 tpa, and by 2012 it had risen to 834,000 tpa. On the basis that the SRA had ceased to exploit the available resource primarily for railway ballast by 1997, the better view is that it was no longer being conducted as a railway undertaking by that date. Production at that time was under 300,000 tpa. It is clear from the terms of the model provisions that by no means all activities of the SRA were railway undertakings.
If that conclusion were not to be accepted, the land was patently not required for railway purposes after 2009. The evidence did not disclose any basis for an intermediate date between 1997 and 2009.

D Quarrying on the western land: the 1991 consent

(1) Terms of consent

As will be noted below, the parties were at issue over the material which could be relied upon in construing the scope of the 1991 consent. Thus, although it forms the termination of a process, it is appropriate to commence with the consent itself. The Council had before it, at a meeting held on 12 February 1991, an extensive report from the Council’s town planner with respect to development application 171/90/79. The determination of Council commenced in the following terms:

“RESOLVED … that Development Consent be granted for an extractive industry being a quarry winning material primarily for railway ballast on lots 5 and 6 in DP 242210 off Station Street Martins Creek Parish Barford County Durham subject to the following conditions ….”

The conditions which were included in that resolution had not been considered by the SRA, as required by s 91A of the Planning Act. Section 91A of the Planning Act, as then in force, provided:

Determination of development applications by Crown etc
91A   (1)   A consent authority, in respect of a development application made by or on behalf of the Crown or a prescribed person –
(a)   shall not refuse its consent to the application except with the written approval of the Minister; and
(b)   shall not impose a condition of its consent except with the written approval of the Minister or the applicant.

As a public authority, the SRA was “a prescribed person” pursuant to cl 41B(1) of the 1980 Regulation. [9] It may be accepted that the conceded failure to comply with this provision rendered invalid the conditions adopted by the resolution of 12 February 1991.

9. See definition of “public authority”, Planning Act, s 4(1).

Following that meeting, on 1 March 1991, the State Pollution Control Commission (the predecessor of the EPA) granted a licence to the SRA with respect to grinding and milling works involving more than 200,000, but not more than 500,000, tpa. This was the first such licence (EPL 1378), which was later varied to increase the volumetric scale, the variation becoming the subject of judicial review proceedings.
On 7 March 1991 the Council gave notice, pursuant to s 92 of the Planning Act, of the 12 February resolution determining the development application. On 15 April 1991 the SRA responded, noting that it was pleased to receive Council’s consent for the development application, but stating that the Authority “cannot accept many of the conditions imposed.” This appears not to have been the first response, as a later letter (dated 19 April 1991) referred to a meeting that had occurred on April 11. There was a further meeting on April 17 at which it appears agreement was reached as to the appropriate conditions, as acknowledged by the SRA in its letter to the Council of 18 April 1991. Nevertheless, a significant further response, referring to matters raised in the earlier of the two meetings, was provided by letter dated 19 April, which enclosed two copies of a document which had been part of the environmental assessment process, known as Plan 2, annotated to indicate the scope of the expected works at particular periods in the future. (This document became central to the Council’s case as to the scope of the development and will be addressed below: it is annexed to these reasons.)
On 14 May 1991 there was a further meeting of Council which had before it an updated report by the town planner, noting the determination of 12 February 1991 that consent be granted, but attaching amended conditions. A resolution of Council accepted the proposed amended conditions.
The appellants have vacillated as to their position with respect to the 1991 consent. In their amended defence they alleged that the failure to obtain the consent of the SRA to the proposed conditions prior to granting consent on 12 February 1991 meant that the grant was effective, but without conditions. [10] Further, absent an application to modify the consent in accordance with the procedures under s 102 of the Planning Act, the resolution of 14 May 1991 was said to be ineffective to impose conditions. The appellants asserted that the SRA had never in fact given written approval to the conditions adopted on 14 May 1991. The result was an unconditional consent. In this Court, the appellants accepted that it could be inferred as a fact that the SRA had approved the conditions adopted on 14 May 1991; the legal effect remained contentious. [11]
10. Amended defence, 9 June 2016, par 35(b).
11. For basis of inference, see primary judgment at [232].
The revised conditions need not be repeated in full. As to issues (1) and (2) noted at [11] above, the purpose and the area of operation did not depend on the conditions. The primary judge rejected the Council’s arguments with respect to issues (3) and (5) on the basis that there were no conditions controlling the annual volume of rock which might be extracted. With respect to issue (4), the critical condition was (vi). The Council also placed significant reliance in the course of argument on condition (i). Condition (xiv) had some relevance to the area within which quarrying operations could be conducted. It is sufficient for present purposes to set out those conditions:

“General
(i)   The development being conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise;
…
Product Transportation
(vi)   The applicant shall not permit the transport of greatly more than 30% of the quarry products, by road on an annual basis without the further specific approval of Council.
…
Set-backs from boundaries
(xiv)   No quarrying operations, other than haul road, are to be carried out within 20 metres of any external boundary of the land.”

Condition (xiv) was the subject of a later variation. As appears from the aerial photograph with cadastral indicators superimposed (attached to this judgment), lot 5 was shaped as a panhandle with lot 42, also controlled by the appellants, at the point where the lot turns south. The 20 metre setback was amended so as not to apply to the boundary with lot 42. Nothing turned on that for the purposes of the proceedings.

(2) Whether consent valid and unconditional

There was an element of confusion in the findings of the primary judge with respect to this issue. The judge concluded, correctly, that the resolution of 12 February 1991 was not effective to grant a conditional consent, absent the written approval of the SRA. The judge further held that approval was given by the SRA to the amended conditions between February 1991 and May 1991. [12] The judge found, more specifically, that the SRA conveyed its written approval of the proposed conditions by letter dated 18 April 1991. Accordingly, the judge concluded that the process of determining the development application was completed by the grant of a valid conditional consent on 14 May 1991, notice of which was conveyed to the SRA by letter of 21 June 1991. [13]
12. Primary judgment at [260(l)]
13. Primary judgment at [261].
In their written submissions, the appellants noted that the judge had described the letter of 21 June 1991 from the Council enclosing a copy of the revised conditions as satisfying the terms of s 91A(1)(b). The reasoning of the primary judge should not be so understood: patently a letter from the Council to the SRA could not constitute written approval by the SRA. Elsewhere the judge made it clear that it was the letter of 18 April from the SRA which constituted written approval of the revised conditions, sufficient to satisfy s 91A(1)(b).
The submission that the Council had granted an unconditional consent on 12 February 1991 should not be accepted. Neither the SRA nor the Council thought that that had happened. Rather, what in fact happened was a step in a process which was not completed until the Council meeting of 14 May 1991. The resolution of 12 February purported to grant conditional consent, but without the necessary agreement of the applicant to the conditions. That omission was rectified and a further resolution with revised conditions was adopted by Council. There is no basis for treating the first step in the process as the final event: the law does not require that a consent authority act through a single resolution. The judge correctly held that consent had been granted and that the terms of the consent involved the resolution of 12 February, absent the conditions, together with the conditions adopted on 14 May 1991.

(3) Construing the 1991 consent

(a) Statutory scheme

It is necessary to identify the legal principles by which the development consent should be construed. That is because there was disagreement (the precise extent of which is not easy to describe) as to the use which could be made of documents other than the Council resolution granting consent, in order to understand the scope and operation of the consent and the conditions. In particular, there was a question as to the extent to which reference could properly be made to the development application and the EIS which accompanied it.
The discussion in the cases in which this issue has arisen have tended to describe any document other than the document recording the decision of the consent authority as “extrinsic material”, adopting a principle that reference can generally only be made to extrinsic material to the extent that it is “incorporated” into the decision. This language appears to have attained the status of an established legal principle, and was deployed in argument with limited regard to the statutory scheme within which it necessarily operated.
As the history of the planning laws set out above demonstrates, the Planning Act adopts a tripartite characterisation of the uses to which land may be applied, [14] namely (i) development permitted without consent, (ii) development that needs consent and (iii) development which is prohibited, for which no consent can be provided.
14. Planning Act, ss 30 and 31.
The important category for present purposes is the second, namely development which can occur, but only with consent. However, not all such development is dealt with by a single process. Thus, relevantly for present purposes, the proposed quarry on the western land was a designated development and the application was required to be “accompanied by an environmental impact statement in the prescribed form”. [15] The significance of that characterisation is that the Planning Act made provision for notice to be given of the development application to persons owning or occupying adjoining land, [16] and for the provision of public notice, including in a newspaper circulating in the locality. [17] The development application “and documents accompanying that application” were to be available for inspection; [18] and persons were entitled to lodge grounds of objection to the development application. [19] Where objections were lodged, they were to be referred to the Secretary of the Department, and the Minister was then to determine whether a public inquiry should be held with respect to “the environmental aspects of any proposed designated development the subject of a development application”. [20]
15. Planning Act, s 77(3)(d).
16. Planning Act, s 84(1)(a)(i).
17. Planning Act, s 84(1)(c).
18. Planning Act, s 86.
19. Planning Act, s 87(1).
20. Planning Act, ss 88 and 119(1)(b).
Disregarding for present purposes the fact that this was “designated development”, the statutory scheme justified the characterisation of a consent by Spigelman CJ in Winn v Director-General of National Parks and Wildlife: [21]

“[4] A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions.”
21. [2001] NSWCA 17; 130 LGERA 508.

In order to construe a document in accordance with its “enduring functions” it is necessary to have regard to the manner in which the determination of the consent authority is made available to the public. In 1991, s 104 of the Planning Act required that the Council maintain a public register of consents:

Register of consents
104. (1) A council shall, in the prescribed form and manner (if any), keep a register of consents granted under this Division and of decisions on appeal from any determination made under this Division.
(2) The register referred to in subsection (1) shall be available for public inspection, without charge, at the office of the council during ordinary office hours.

The 1980 Regulation made such provision for the purposes of s 104(1) in the following terms:

Register of consents
50. (1) The register of consents required by s 104 of the Act to be kept by a council shall contain in relation to each consent the following information:
(a) a copy of the development application which has been determined under s 91 of the Act by the granting of the consent;
(b) a copy of the notice given under s 92 of the Act of the determination granting the consent;
…
(e) the date on which the consent becomes effective ascertained in accordance with s 93 of the Act ….

The regulation also made provision for modifications, surrender and revocation of the consent to be recorded on the register. Where there had been a decision of the Land and Environment Court on appeal, a copy of that “decision” was to be included on the register.

Two further provisions should be noted by way of explanation of the reference in cl 50 to the “notice” given under s 92. First, a determination was made under s 91 which relevantly provided:

Determination of development application
91.   (1)   A development application shall be determined by –
(a)   the granting of consent to that application, either unconditionally or subject to conditions, or
(b)   the refusing of consent to that application.

The mechanism for making the determination depended upon the procedures of the particular consent authority. In relation to a local council, those procedures involve the formulation of a resolution which is put to the vote of councillors at a properly constituted council meeting. Decisions of the council are recorded in the minutes of the meeting. However, those minutes are not included on the public register, nor is there provision in the Planning Act for the minuted resolution to be provided to the applicant for consent. Rather, notice is provided in the following manner:

Notice to applicant of determination of development application
92. (1) Notice of a determination under section 91 shall be given to the applicant in the prescribed form and manner.

(2)   Where the determination is made by the granting of consent subject to conditions or by the refusing of consent, the notice referred to in subsection (1) shall –
(a)   indicate the reasons for the imposition of the conditions or the refusal; and
(b)   notify the applicant of the provisions of this Act conferring a right of appeal against the determination.

The date from which the consent operated was determined pursuant to s 93. Except in the case of designated development, that was the date “endorsed”, as prescribed, upon the notice referred to in s 92: s 93(1)(a). In the case of designated development it was a date 28 days after the endorsed date of consent on the s 92 notice: s 93(1)(b).
It is not necessary to consider for present purposes how a discrepancy between the minuted resolution of the Council and the s 92 notice should be resolved in proceedings between the applicant and the consent authority. [22] What is clear, however, is that the primary source of information, both for the applicant and the public at large, will be the material contained on the statutory register of consents. From that it may be inferred that there will be no necessary inconsistency between the proposition that a consent has an enduring function, running with the land, and the use of material required to be placed on the public register for the purpose of understanding the scope and operation of the consent.
22. Cf Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 at [44]-[47], where reliance was placed on a report before the Council to identify the scope of the consent.

(b) Reference to development application and environmental impact statement

With respect to the development application, not only can there be no objection in principle to referring to it in order to understand the scope of the development to which consent was granted, but it will be commonly be the case that such reference is available. Nor is it necessary to find ambiguity or uncertainty in the terms of the consent before having reference to the development application. As noted by Beazley JA (Handley and Powell JJA agreeing) in Sericott Pty Ltd v Snowy River Shire Council: [23]
23. [1999] NSWCA 480; 108 LGERA 66.

“[46] The consent granted can, of course, be no wider than the application to which it relates.”

To similar effect, the High Court stated in Weston Aluminium Pty Ltd v Environment Protection Authority: [24]

“[14] Thirdly, in 1981, s 91(1) of the EPA Act provided that a development application was to be determined by:
‘(a) the granting of consent to that application, either unconditionally or subject to conditions; or
(b) the refusing of consent to that application.’

A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought. The consenting authority responded to what was sought by granting or refusing consent and, if consent was granted, doing so either unconditionally or subject to conditions.
24. [2007] HCA 50; 82 ALJR 74.

In Mison v Randwick Municipal Council [25] Priestley JA said that “if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application.” Clearly such a determination cannot be made without reference to the application.
25. (1991) 23 NSWLR 734 at 737A-B.
Accordingly, it should generally be permissible to have regard to the development application for the purpose of determining the scope and nature of the proposed development for which consent was sought, if that is in issue.
The next issue is whether it is permissible to have regard to the EIS, for the same purpose. The parties considered whether an environmental impact statement will be included on the public register in accordance with cl 50 of the 1980 Regulation. The Council submitted that it should be included because it was, in effect, part of the development application. The Council noted that the prescribed form in which this development application was to be submitted [26] required (i) a description of the development for which consent was sought; (ii) that “plans/drawings and other information (in triplicate) describing the development must accompany the application”; (iii) that the applicant provide a statement of the “environmental impact of proposed development”; (iv) that the application was to be “accompanied by” an environmental impact statement, [27] and (v) that the 1980 Regulation provided for the form in which an environmental impact statement was to be lodged, namely form 4.
26. 1980 Regulation, Sch 4, form 3.
27. 1980 Regulation, Form 3, Pt D and note 5.
The appellants submitted that for the purposes of the register, it was clearly appropriate to draw a distinction between the development application itself (which was to be included on the register) and those documents which were required to accompany the development application, which were not to be included on the register. The correctness of that submission may be doubted, but the point is not determinative for present purposes.

(c) Conclusions as to scope of relevant material

The determination of the scope and operation of the development consent in the present case should be approached on the following basis.

The notice given pursuant to s 92 of the Act stated that it was notice of “the Determination by Council (the consent authority) of the Development Application No 171/90/79 the details of which, and of the land involved follow ….”

Although some details are then provided, it is appropriate to look at the development application which, together with the notice, is required to be placed on the public register, in order to understand the scope of the proposed development.

As may be expected, the development application provides more detail of the proposed development. Importantly, although the notice identified the property the subject of the proposed development as lots 5 and 6 in DP 242210, having an area of 52.5 ha, the development application identified the area of the proposed development as being about 10 ha. It did not, however, identify where on the two lots the development was proposed to take place.

The development application form provided that the full description of the development could be included in the separate information provided in the EIS.

It should therefore be permissible in this case to look at the summary of the proposed development contained in the EIS, whether or not it is itself to be found on the public register.

If it were necessary to find that the development application was “incorporated” into the development consent, the proper conclusion is that it was so incorporated. The reference to it at the commencement of the determination is not merely a passing reference; it is a precise reference to the matter which is the subject of the determination and which provides the limits of the function being exercised by the Council as the consent authority. Further, it is not appropriate to characterise the development application as “extrinsic material”, even if not incorporated, because it forms part of the public register. It is thus a document which is not only available but which would readily form part of a search undertaken by a prospective purchaser of the land.
So far as the EIS is concerned, if it were necessary to determine the issue, the proper finding is that it is incorporated into the development application to the extent that it provides a full description of the proposed development. To that extent only, the statement is expressly incorporated into the development application. In reaching that conclusion, it is significant that an environmental impact statement is not a private document available only to the applicant and the consent authority, but a document prepared for the purposes of public notification and possibly a public inquiry.
The Council supported this approach and outcome, if not the precise reasoning. It further submitted that such an approach was not inconsistent with authority. However, it also submitted that, if the approach were inconsistent with authority, that authority should be reconsidered. For the reasons which follow, the better view is that the approach is consistent with authority, particularly when proper regard is had to the statutory scheme.
Before considering the case law with respect to the Planning Act, it is helpful to note an analogous situation which would arise were there to be a challenge to the validity of the consent. Absent a privative clause, the Court’s supervisory jurisdiction would extend to error of law on the face of the record. Disregarding the statutory expansion of the record effected by s 69(4) of the Supreme Court Act 1970 (NSW), Craig v South Australia held that the record was confined to (but included) “the documents initiating and defining the matter in the inferior court and the impugned order or determination.” [28] Recognising that a consent operates as a description of the permissible use of particular land, no more precise categorisation can identify the limits of the material available in construing a consent.
28. (1995) 184 CLR 163 at 180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.
While Craig was dealing with an inferior court, the principle was equally applicable to any other body which was subject to the supervisory jurisdiction of a superior court exercising power to issue a writ of certiorari. The development application and documents accompanying it should fall within the category of “documents initiating and defining the matter” for determination.

(d) Case law

Turning to the authorities dealing with the operation of the Planning Act, reference has already been made to the judgment of this Court in Sericott and the judgment of the High Court in Weston Aluminium. The restrictive approach is conventionally traced to the following passage in the earlier judgment of Hope J in Auburn Municipal Council v Szabo: [29]

“The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes [30] and by [the Court of Appeal for England and Wales]. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. … In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent.”
29. (1971) 67 LGRA 427 at 433-434.
30. (1970) 19 LGRA 321.

This very general statement should be read and applied with caution, for a number of reasons. First, it did not purport to apply to a legislative regime similar to that in the Planning Act, which it predated by a decade. Secondly, it placed emphasis on the practical problems which would arise were the construction of the consent to be considered by reference to other documents. That problem is diminished, if not removed where there is a public register which includes at least the development application. Thirdly, the principle stated is qualified by reference to “one primarily looks at”; the possibility of express or implied incorporation and the possibility of reference to other material denies the universality of the principle.
Finally, the authority for the principle was derived, so far as New South Wales law was concerned, from the judgment of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes. The question in that case was whether a consent was subject to any condition restricting the times within which the premises could operate as a laundry. The resolution of council simply approved the application (subject to relevant consultation with the State Planning Authority, which it was required to carry out under the relevant planning scheme). Although there was reference to conditions being recorded “in the Council’s register” the relevant conclusion was that a statement of fact or assertion of intention contained in an application was not necessarily to be treated as a condition of the consent. Else-Mitchell J stated: [31]

“I have no doubt that … a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application.”

There is no general principle contained in this judgment to the effect that reference could not generally be had to the application to determine the scope and nature of the consent.

31. Ryde Municipal Council at 323.

In Parramatta City Council v Shell Co of Australia Ltd [32] Hope JA (with the agreement of Jacobs P and Manning JA) considered whether a planning approval might be ineffective because the plans which accompanied the application were deficient, noting that “no question has been raised, nor indeed could be raised, that the consent was invalid because of the lack of drawings showing further particulars of the development.” To explain that proposition, Hope JA continued:

“As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. The nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks.”
32. [1972] 2 NSWLR 632 at 637.

This reasoning reflected that adopted in Szabo, but now with the authority of this Court, and left open the undefined scope of evidence admissible for the purpose.
A similar approach was adopted after the commencement of the Planning Act (in 1980), the continuing primary emphasis being on the nature of the consent, rather than the statutory scheme under which the consent was granted. However, in Stebbins v Lismore City Council [33] a submission was noted and addressed in the following passage, which did have regard to part of the statutory scheme: [34]

“Mr Tamberlin QC, senior counsel for the appellants, referred the court to a number of authorities in support of the proposition that the form of notification itself constituted the relevant development consent. In addition he directed the court's attention to s 104 of the [Planning Act] which requires councils to keep a register, open to the public during ordinary working hours, of such consents. This was, he contended, important, because it emphasised the fact that development consents operate, in effect, in rem and may be availed of by subsequent owners and other occupiers of the land: see Parramatta City Council v Shell Co of Australia Ltd ….”
33. (1988) 64 LGRA 132 (Mahoney, Priestley and Clarke JJA).
34. Stebbins at 134-135.

The Court did not determine the correctness of that submission and what assistance might be derived from s 104. However, the notification before the Court involved a return of the plan of the proposed development which had been part of the development application, with a stamp suggesting an amendment. The Court continued:

“The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application. Similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan on which, at the time of consent, a marking had been placed showing that the development being approved did not include the new entrance. Read together the documents returned to the appellants informed them that the works shown on the plan were the subject of the development consent except insofar as an amendment was required in relation to the new entrance to the Bruxner Highway. …
If the written notice of consent alone is to be regarded as the consent so that it alone would appear on the public register the fact inescapably remains that it could not be understood by a searcher without recourse to the application itself, including the accompanying plans. The searcher wishing to gain a full appreciation of the terms of the consent would then see a plan showing that no approval had been given to the new entrance.”

It is in fact by no means uncommon to find the court considering the terms of a development application, including documents forming part of the application, when dealing with the validity of a consent. In Currey v Sutherland Shire Council [35] this Court considered a proposed subdivision of lot 4 in a plan, the result of which would, for two of the subdivided lots, require access over lot 1. No consent was obtained from the owner of lot 1. The Court (Stein JA, Mason P and Handley JA agreeing) held that it was plain from the development application that the proposed development was limited to the subdivision of land in accordance with the proposed plan and that no development was proposed on lot 1. Accordingly the consent of the owner of lot 1 was not required. That conclusion was identified by reference to a letter referred to in the development application and attached to it. The letter was treated, in accordance with the principles in Szabo, as having been incorporated into the development application. [36]
35. (1998) 100 LGERA 365.
36. Currey at 368.
A further example of detailed reference to a development application and accompanying documents, for the purpose of considering a challenge to the validity of conditions of consent, was undertaken in Kindimindi Investments Pty Ltd v Lane Cove Council: [37]
37. [2006] NSWCA 23; 143 LGERA 277 (in my judgment, with which Handley JA and Hunt AJA agreed).

[33] Pursuant to clause 50(1)(a) of the [Regulation] a development application must contain prescribed information and be accompanied by specified documents, as identified in Part 1 of Schedule 1 of the [Regulation]. Clauses 1 and 2 prescribe, respectively, the information to be included in the development application and documents to accompany the development application. In part, the accompanying documents are designed to provide a better indication, or at least an indication in a different form, of information required to be contained in the application. Thus, the first two specified documents are:

Clause 34 of the EPA Regulation 1980 prescribed the contents of an environmental impact statement, including:

“(a) a full description of the designated development proposed by the development application;
(b) a statement of the objectives of the proposed designated development;
(c) a full description of the existing environment likely to be affected by the proposed designated development, if carried out;
(d) identification and analysis of the likely environmental interactions between the proposed designated development and the environment;
(e) analysis of the likely environmental impacts or consequences of carrying out the proposed designated development (including implications for use in conservation of energy);
(f) justification of the proposed designated development in terms of environmental, economic and social considerations;
(g) measures to be taken in conjunction with the proposed designated development to protect the environment and an assessment of the likely effectiveness of those measures;
(g1) details of energy requirements of the proposed development and measures to be taken to conserve energy;
(h) any feasible alternatives to the carrying out of the proposed designated development and reasons for choosing the latter;
(i) consequences of not carrying out the proposed designated development.”

All of these matters focus on the particular designated development proposed by the development application. (The current form and content requirements for a development application and an environmental impact statement for designated development are in s 4.64(1)(e), (j) and (k) of the EPA Act and cl 50 and Sch 1 and 2 of the EPA Regulation 2000).
Where a development application is made to carry out designated development, the consent authority is required to give public notice of the development application, in the form and manner prescribed: s 84(1) and (4) of the EPA Act and cll 37-39 of the EPA Regulation 1980 (see now s 4.64(1)(g) of the EPA Act and cll 77-80 of the EPA Regulation 2000). The public may inspect the development application referred to in the notice and documents accompanying that application, which include the accompanying environmental impact statement: s 86 of the EPA Act (see now s 4.64(1)(g) and (l) and Sch 1, Div 2 and 3 of the EPA Act and cl 78(1)(e) and (f) of the EPA Regulation 2000).
Any person may, during the submission period, make a submission in writing to the consent authority, including by way of objection to the development application: s 87(1) of the EPA Act (see now s 4.64(1)(l) of the EPA Act and cl 78(1)(f) of the EPA Regulation 2000). The consent authority is to forward copies of all submissions by way of objection to the Minister or Planning Secretary: s 87(2) and (3) of the EPA Act (see now cl 81 of the EPA Regulation 2000).
A person who made a submission by way of objection during the submission period is an objector who is entitled to appeal to the Land and Environment Court against any determination of the consent authority to grant development consent to the designated development: s 98(1) of the EPA Act (see now s 8.8(2) of the EPA Act).
The consent authority was required to consider and determine the development application that had been made. The consent authority, in determining the development application, was required to take into consideration such of the matters in s 90(1) (now s 4.15(1)) of the EPA Act as were of relevance to “the development the subject of that development application”, including the impacts of that development on the environment: s 90(1)(b) (see now 4.15(1)(b) of the EPA Act).
The consent authority was required to determine the development application by granting consent to that application, either unconditionally or subject to conditions, or by refusing consent to that application: s 91(1) (see now s 4.16(1)) of the EPA Act. The consent authority may grant consent subject to such conditions as may be imposed by s 91(3) (now s 4.17) of the EPA Act. Of critical importance is that a condition of consent that controls the development to be carried out needs to relate to “the development the subject of the consent” (s 91(3)(a) now s 4.17(1)(a)) or “the development the subject of the development application” (s 91(3)(g) now s 4.17(1)(g) of the EPA Act).
After a consent authority determined a development application, it had to give notification to the applicant of the determination of the development application in the form and manner prescribed by the regulations: s 92(1) (now s 4.18) of the EPA Act. The EPA Regulation 1980 prescribed a form, Form 7, for the notice of determination: cl 44(1) of the EPA Regulation 1980. Form 7 required identification of the development application and how that development application had been determined, by the grant or refusal of consent, and if by the grant of consent, the conditions of consent (see now cl 100 of the EPA Regulation 2000).
For designated development, the consent authority was also required to notify, in the prescribed form, time and manner, each person who made a submission by way of objection to the development application: s 95 (now s 4.18(3)) of the EPA Act. The EPA Regulation 1980 prescribed a form, Form 8, for notifying objectors of the determination of the development application for designated development: cl 45(1). The notification was required to include a copy of the notice of determination given to the applicant (cl 45(2)). Form 8 identified the development application and how the development application had been determined by the granting or refusing of consent, as well as “brief particulars of development”.
The development consent became effective and operated from the date of consent that was endorsed, as prescribed, upon the notice of determination, except in the case of designated development to which any objection had been made, in which case the consent became effective and operated from the expiration of 28 days from the date of consent that was endorsed, as prescribed, upon the notice of determination: s 93(1) of the EPA Act. The date of consent that was required to be endorsed upon the notice of determination was the date on which the notice was posted or delivered: cl 44(4) of the EPA Regulation 1980) (now, a development consent has effect on and from the date it is registered on the NSW Planning Portal: s 4.20(1) and (2) of the EPA Act).
Each council was required to maintain a register of development applications and development consents: s 104(1) of the EPA Act and cl 50 of the EPA Regulation 1980 (see now s 4.58 of the EPA Act and cl 264 of the EPA Regulation 2000). Amongst the documents that the register was required to contain were a copy of the development application which had been determined by the granting of the consent and a copy of the notice of determination granting the consent (see now cl 264 and 266 of the EPA Regulation 2000). The Council had to make the register available for public inspection: s 104(2) of the EPA Act (see now cl 268(1) of the EPA Regulation 2000).
This summary of the statutory provisions regulating the making, consideration and determination of development applications and the notification of determination of development applications under the EPA Act reveals the central relationship between the development application and the development the subject of the development application on the one hand and the development consent on the other.
A development application seeks consent to carry out the particular development described in the application. A development application is determined by the granting or refusing of consent to that application. A development consent is therefore the determination of a development application by the grant of consent to the development for which consent was sought in that development application. A purported exercise of the power to grant development consent will not be valid unless it constitutes “the granting of consent to that application” (the words of the former s 91(1)(a)) or “granting consent to the application” (the words of the current s 4.16(1)(a)): see Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [13] and Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737. As Basten JA framed the proposition, “that to which the consent is given must accord with that for which application had been made”: GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44].
The High Court held in Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]:

“A development consent thus hinged about the application made by the party
seeking consent. It was the application that marked out the boundaries of the
consent sought.”

Development consent cannot be granted for development of a nature different to or to an extent or with other features greater than the development for which consent was sought in the application. As this Court noted in Sericott v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 at [46], a development consent can “be no wider than the application to which it relates.” Development consent can be granted for less than the development sought in the development application. Under the current s 4.16(4) of the EPA Act, a development consent may be granted for the development for which the consent is sought, or for that development except for a specified part or aspect of that development, or for a specified part or aspect of that development. But development consent cannot be granted to development greater than the development for which the consent is sought.
One example is the development of a wind farm. The development application may seek consent for a particular number of wind turbines at particular locations. Development consent could be granted for the number of wind turbines at the locations proposed in the development application (this being the development for which the consent is sought) or for that development except for specified wind turbines proposed in that development application that are found to be unacceptable or for only specified wind turbines proposed in that development application that are found to be acceptable: see Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59. But consent could not be granted for a greater number of wind turbines than was proposed in the development application. That would not be a determination of the development application that had been made by “granting consent to the application”.
Another example, closer to the facts of this case, is a quarry. The development application, as required by the statutory provisions regulating the making of a development application, may describe the particular development to be carried out and show in the accompanying plans the location of the proposed quarry works and any buildings in relation to the land’s boundaries and adjoining development and the dimensions of those works and buildings (such as depth or height above ground level and width and length). Those descriptions of the development define the development for which the consent is sought. Development consent could be granted for the development for which the consent is sought, or for that development except for a specified part or aspect of that development (such as a specified part of the proposed quarry or a specified building) or for only a specified part or aspect of the development. But development consent could not be granted to carry out a development other than the development for which the consent is sought, such as to extract rock from the whole of the land and not only the particular part of the land identified in the development application, by the location and dimensions specified, as the quarry. The development consent cannot approve a greater development than the development for which the consent is sought in the development application.
This was the situation in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103. The development application sought consent for a blue metal quarry in a particular area, identified by a circle on a plan accompanying the development application, within the larger development site. At issue was whether the development consent permitted quarrying operations over the whole of the development site or only in the smaller area identified in the plan accompanying the development application. Meagher and Ward JJA, Macfarlan JA dissenting, held that the development consent only approved quarrying operations in the smaller area identified in the plan accompanying the development application and not over the whole of the development site: at [55] and [201]. Their Honours considered it was permissible to refer to the development application and accompanying documents in order to identify the area in respect of which quarrying had been approved. But recourse to the development application and accompanying documents was also necessary in order for the consent to be a valid exercise of the power to determine the development application. If the development for which the consent was sought in the development application was to quarry in a specifically designated area within the larger development site, as identified in the plan accompanying the development application, development consent could not be granted to quarry the whole of the development site. That would not be to grant consent to the application.
The development to which consent has been granted might, therefore, not be able to be meaningfully identified without reference to the development application and the documents accompany the development application, including the plans, which describe and define the development for which the consent is sought.
The point has been recognised by this Court. In Stebbins v Lismore City Council (1988) 64 LGRA 132 at 135, Mahoney, Priestley and Clarke JJA held that:

“The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application. Similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan…”

In Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [34], Basten JA, with whom Handley JA and Hunt AJA agreed, recognised that “in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development.”
A similar point was made by Doyle CJ in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189 at [45], cited with approval by Meagher JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services at [48], that:

“The primary document is the development authorisation itself. This is the case whether one is dealing with a provisional development plan consent or with a development approval. It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle it must be permissible, when deciding the meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to “details and plans” submitted as part of the application.”

In order for a development application to be complete and effective, it must be made in the prescribed form and manner, contain the prescribed information and be accompanied by the prescribed documents. The information to be included in the development application includes a description of the proposed development and the development application must be accompanied by a site plan and a sketch of the development showing the location and dimensions of the proposed development (typically these are the architectural or engineering plans showing the buildings or works proposed).
A development application for designated development is required to be accompanied by an environmental impact statement (the former s 77(3)(d) of the EPA Act and cl 26 of the EPA Regulation 1980 and the current s 4.12(8) of the EPA Act and cl 50 and Sch 1 and 2 of the EPA Regulation 2000). The development application form expressly required an environmental impact statement to accompany the development application where the proposed development was for designated development.
As I noted in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [97], with which Basten JA and Leeming JA agreed:

“The development application will be “ineffective and incomplete” whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189].

In particular, a consent authority has no power to determine a development application for designated development unless the development application is accompanied by an environmental impact statement: Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-359 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [106]-[108]. An environmental impact statement is not merely information supporting a development application for designated development, but is a critical part of the development application necessary to enliven the power of the consent authority to determine the development application.
In these circumstances, reference may legitimately be made to the development application and the accompanying documents, including an environmental impact statement where the proposed development is designated development, in order to identify the nature, extent and other features of the development the subject of the development application and to which consent has been granted.
It is in this statutory context that the 1991 consent needs to be construed. I agree with Basten JA that it is appropriate, indeed necessary, to examine the development application and documents, including the environmental impact statement, that were statutorily required to accompany the development application in order to understand the nature, extent and other features of the development for which consent was sought and to which consent could lawfully be granted. That examination reveals, amongst other things about the development for which the consent was sought, that the nature of the development was a quarry for the purpose of winning material primarily for railway ballast, and the extent of the development involved extraction of around 10ha on Lot 5 in the location of the dotted line polygon shown on Plan 2 in the EIS that accompanied the development application. Identification of this nature and this extent of the proposed development is sufficient to permit resolution of the Council’s claims that the appellants are carrying out development not in accordance with the 1991 consent.

Quarrying outside area approved by the 1991 consent

The primary judge was correct to find that quarrying was occurring outside the area approved by the 1991 consent. On a proper construction, the 1991 consent did not authorise extraction of rock on Lot 6, only on Lot 5. Extraction was limited to an area of around 10ha on Lot 5, as indicated by the dotted line polygon on Plan 2. The appellants have extracted rock far to the north of this dotted line polygon into Lot 6. There might be some small portion of the dotted line polygon in the south west of Lot 5 where extraction might not have occurred. This is relevant to the challenge to the primary judge’s resource exhaustion finding. But this non-extraction of a small portion of the area permitted to be extracted (if that be the case) does not excuse the extraction far beyond the area permitted to be extracted.

Quarrying for products other than railway ballast

The primary judge was correct in finding that the 1991 consent permitted a quarry for the purpose of winning material primarily for railway ballast but that the quarry is not currently being operated for that purpose. Railway ballast has ceased to be the primary product of the quarry.

Processing quarry products without consent

The primary judge was correct to find that the processing of rock extracted from Lot 5 in accordance with the 1991 consent would be ancillary to such extraction. Quarrying, as an extractive industry, includes processing of the extracted material. The primary judge found, however, that the current extraction operations on the Western Lands are not being carried out in accordance with the 1991 consent, including that rock is being extracted outside the area approved by the 1991 consent. In these circumstances, the primary judge found that the processing of unlawfully extracted rock is itself unlawful.
This finding of unlawful processing logically follows from the finding of unlawful extraction. I do not consider, however, it is necessary to make a declaration and order to that effect. It is sufficient to make declarations and orders addressing the unlawful extraction of rock. Once the unlawful extraction is remedied, so too will any unlawful processing.
If it be the case that there is still some portion of the area approved for extraction by the 1991 consent that has not yet been extracted, then the rock lawfully extracted from that portion could be lawfully processed. The primary judge’s order (21) would not allow for such lawful processing of lawfully extracted rock to occur. That order should be set aside.

Contravention of conditions of the 1991 consent

Validity of conditions of the 1991 consent

The 1991 consent was effectively granted on 14 May 1991. The Council resolved to grant consent subject to conditions on 12 February 1991 but that resolution was ineffective until the State Rail Authority gave its written approval to revised conditions in April 1991. The Council resolved on 14 May 1991 to adopt the revised conditions that the State Rail Authority had approved. Thereupon, the Council granted consent subject to the revised conditions. The primary judge was correct to find that the 1991 consent was granted subject to the revised conditions.

Contravention of condition 1

Condition 1 of the revised conditions of the 1991 consent provided that:

“The development being conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.”

The primary judge found that increased road transportation of quarry products by trucks driving through the town of Paterson interfered with the amenity of residents in Paterson in respect of noise. The appellants challenged this finding on a variety of bases. But the one that I find to be successful is that the driving of trucks through the town of Paterson is not itself the carrying out of the development to which consent was granted. The development the subject of the 1991 consent is the quarrying operation on the Western Lands. Of course, quarry products resulting from that development need to be transported from that land to customers. One condition of consent (condition 6) specified that the modal split for the transportation of quarry products be that not greatly more than 30% be transported by road and the balance by rail. But this condition did not cause the transportation of the quarry products along the roads or the railway lines to be part of the development for which consent was sought in the development application and to which consent was granted by the 1991 consent.
Condition 1 of the 1991 consent regulated the carrying out of “the development” the subject of the consent, which is the quarrying operations on the Western Lands but not the transportation of quarry products from that land. It is the development the subject of the 1991 consent that must not interfere with the amenity of the neighbourhood, not the transportation of quarry products from that development.
In these circumstances, even if the trucks transporting quarry products interfered with the amenity of the residents of Paterson when they drove through the town (as the primary judge found), this would not result in a breach of condition 1 of the 1991 consent.
This conclusion, however, does not have any consequence. The primary judge did not make an order to remedy a breach of s 76A(1)(b) of the EPA Act resulting from any breach of condition 1. Hence, there is no order to set aside.

Contravention of condition 6

Condition 6 of the revised conditions of the 1991 consent provided that:

“The applicant shall not permit the transport of greatly more than 30% of the quarry products by road on an annual basis without the further specific approval of Council.”

The primary judge was correct to find that the appellants had permitted the transport of greatly more than 30% of the quarry products by road on an annual basis without the further specific approval of the Council.
As Basten JA explains, Condition 6 regulates the carrying out of the development on the Western Lands; it does not regulate what is done on the Eastern Lands, and in particular the carrying out of any continuing use on the Eastern Lands. The condition requires the person carrying out the development on the Western Lands in accordance with the 1991 consent not to permit the quarry products resulting from that development to be transported in breach of the modal split required by the condition. There was no inconsistency with any continuing use rights that might apply to the Eastern Lands.
As a matter of fact, it was incontrovertible that greatly more than 30% of quarry products had been permitted to be transported by road on an annual basis. As Basten JA finds, no further specific approval of the Council was given for such excessive transportation by road.

Contravention of condition 7

Condition 7 of the revised conditions of the 1991 consent required the applicant to:

“(b) Ensure that all environmental safeguards proposed for the development and required by this consent and other statutory approvals are enforced.”

The appellants challenged the primary judge’s construction of this condition as requiring enforcement of three categories of environmental safeguards:

“(1) all environmental safeguards proposed for the development; (2) all environmental safeguards required by the 1991 consent; and (3) all other statutory approvals.”

I agree with the appellants that the primary judge may have misconstrued this condition. However, this misconstruction has no particular consequence, having regard to what the primary judge found the environmental safeguards to be. The primary judge found that the environmental safeguards for the purposes of Condition 7 included that: the proposal was for a railway ballast quarry as distinct from a more generic quarry; the mode of operating the railway ballast quarry was by transporting quarry products by rail; and condition 1 protected the amenity of the neighbourhood.
Each of these environmental safeguards, however, are sourced in the 1991 consent and it is not necessary to have recourse to the environmental safeguards proposed for the development (the primary judge’s first category) or other statutory approvals (the primary judge’s third category). The only source is the 1991 consent (the primary judge’s second category).
Hence, the three environmental safeguards identified by the primary judge as required by condition 7 of the 1991 consent – the approved purpose of the development being a quarry for the purpose of winning material primarily for railway ballast, the modal split for the transportation of quarry products required by condition 6 and the protection of the amenity of the neighbourhood required by condition 1 – add nothing to what was already required by the 1991 consent. There can be, therefore, no different contravention of the 1991 consent by not complying with these environmental safeguards. The appellants have carried out the quarry not for the purpose for which the 1991 consent was granted and in contravention of the modal split for transportation of quarry products required by condition 6. They have not contravened condition 1 by driving trucks through Paterson, even if those trucks interfered with the amenity of the residents of Paterson.
In these circumstances, there is no utility in making any orders to address any contravention of condition 7; it will suffice to make orders addressing the other contraventions of the 1991 consent.

Exhaustion of permitted resource

The primary judge, of his own volition, found that the volume of rock that had already been extracted over the years exceeded what he considered would be available within a 5ha area within the dotted line polygon on Plan 2 to a depth of RL 40m. The appellants challenged this finding on the ground of denial of procedural fairness but also that it was factually inaccurate. As to the latter, the appellants pointed to a small portion of land in the south west of the dotted line polygon on Plan 2 that had not yet been excavated. The appellants argued that even if the area of excavation approved by the 1991 consent were to be limited to around 10ha in the dotted line polygon in Plan 2, there still would be rock permitted to be excavated.
I agree that the primary judge ought not to have made his resource exhaustion finding. Arguably, there might be some portion of the area approved by the 1991 consent that might still be able to be excavated (although it is not necessary to conclusively determine this). That possibility should be left to the appellants to pursue if they wish. As Basten JA proposes, the primary judge’s orders should be adjusted to allow them to do so.

Unlawful development on Eastern Lands

The Council claimed, and the primary judge found, that the appellants were carrying out on the Eastern Lands processing of rock extracted from the Western Lands in breach of the EPA Act. The primary judge’s finding that the processing of the rock extracted from the Western Land was unlawful was dependent on the primary judge’s finding that the extraction of rock from the Western Lands was unlawful.
I have my doubts that there still could be a lawful use of the Eastern Lands for the processing of extracted material. The processing of extracted material was ancillary to the dominant use of extraction of rock on the Eastern Lands. Extraction of rock on the Eastern Lands ceased in 1993. Thereafter, any processing was of rock extracted not from the Eastern Lands but rather from other land, being the Western Lands. There is a real question whether such processing thereupon became unlawful: it was no longer ancillary to a dominant lawful use of the Eastern Lands, but became an independent use with no lawful source of authority.
Nevertheless, it is not necessary to determine this question. As Basten JA points out, the Council’s claim and the primary judge’s finding concerning processing of extracted material on the Eastern Lands were not needed. If orders were to be made to remedy the unlawful extraction of rock from the Western Lands, the unlawful processing of extracted rock on the Eastern Lands would necessarily also be remedied. There was no suggestion that the appellants are processing rock extracted from anywhere other than the Western Lands.
In these circumstances, I agree with Basten JA that there is no need to determine the issues of whether there is still any continuing use of the Eastern Lands for the processing of extracted material or, if so, whether there has been an enlargement, expansion or intensification of any such continuing use without consent. Furthermore, because the appellants have sought consent in the State significant development application for extraction of rock from the Western Lands and processing of extracted material on the Eastern Lands, there is reason not to do so.

Validity of variation of the EPL

Breach of s 50(2) of POEO Act

The primary judge was correct in finding that the EPL was varied by the EPA in breach of s 50(2) of the POEO Act. As Basten JA explains, the condition in s 50(2) that a licence that relates to controlled development not be varied unless development consent has been granted for the controlled development is a jurisdictional fact. In this case, the jurisdictional fact was not satisfied. The controlled development included the extraction of rock from the Western Lands. That activity required development consent. Yet the 1991 consent did not authorise the nature (quarrying otherwise than for the purpose of winning material primarily for railway ballast), extent (quarrying outside the area approved by the 1991 consent, including on Lot 6) and other features (including the predominant transportation of quarry products by road) of the controlled development proposed in the licence variation application. The licence variation was therefore in breach of s 50(2) of the POEO Act.

Breach of s 58(6) of POEO Act

The primary judge was correct to find a breach of s 58(6) of the POEO Act. As Basten JA explains, the conditions in s 58(6)(a) and (b) are jurisdictional facts and, in this case, they were satisfied. The proposed variation of the EPL did authorise a significant increase in production capacity at the quarry, from the 500,000 tpa limit in the EPL before variation to the 2,000,000 tpa limit after variation of the EPL. It mattered not whether the operators would actually increase production at the quarry to the limit permitted; the operation of s 58(6) turns on the production capacity that the variation will “authorise”. An increase in production capacity to the limit authorised by the proposed variation of the EPL would in turn authorise a significant increase in the environmental impact of the activity authorised by the EPL.
As Basten JA points out, the greatest single environmental impact of the quarry is the level of truck movements involved in transporting quarry products to customers. The level of truck movements is proportionate to production capacity: a significant increase in production capacity will significantly increase truck movements, which in turn will significantly increase environmental impacts. Hence, the proposed licence variation “will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence,” being the jurisdictional fact in s 58(6)(a) of the POEO Act.
As a matter of fact, the proposed licence variation had not been the subject of environmental assessment and public consultation under the EPA Act, being the jurisdictional fact in s 58(6)(b) of the POEO Act. It mattered not, contrary to the appellants’ argument, that the development the subject of the 1991 consent had been the subject of environmental assessment and public consultation under the EPA Act. That development was not the development that would be authorised by the proposed licence variation. It is the development that would be authorised by the proposed variation of the EPL, with its significantly increased production capacity and environmental impacts, that needed to be the subject of environmental assessment and public consultation under the EPA Act. That development, however, had not been the subject of such environmental assessment and public consultation.
As these jurisdictional facts in s 58(6) were met, the EPA was obliged to invite and consider public submissions before it varied the EPL. The EPA did not do so and thereby varied the EPL in breach of s 58(6) of the POEO Act.

Relief to remedy statutory breaches

There could be no meritorious basis for withholding relief in the judicial review proceedings to set aside the EPA’s variation of the EPL made in breach of ss 50(2) and 58(6) of the POEO Act. The form of the orders made by the primary judge, however, should be simplified as proposed by Basten JA.
The appellants’ arguments for withholding relief to remedy the ongoing breaches of the EPA Act in the civil enforcement proceedings are also unmeritorious, as Basten JA explains. The breaches, having been established, should be remedied. The appellants have not shown any sound basis for why they should be allowed to continue to breach the law in material respects. Extraction is occurring far beyond the area approved by the 1991 consent, for products other than primarily for the railway ballast that had been approved by the 1991 consent, and in contravention of a fundamental condition of the 1991 consent, condition 6, requiring that not greatly more than 30% of quarry products be transported by road on an annual basis. Orders should be made to enforce compliance with the 1991 consent.
The appellants have sought to regularise extraction and processing activities by making a State significant development application seeking consent for these activities. That application is pending determination. The primary judge stayed his orders for a period of 3 months to allow the making and determination of the State significant development application. That time has now expired. This Court extended the stay of orders until the determination of the appeal to this Court. The Council, at the hearing of the appeal, agreed to a further stay of any orders made by this Court for a further period of 3 months. I agree that a grant of one further stay of 3 months is appropriate to allow time for the State significant development application to be determined and for the appellants otherwise to arrange their affairs and operations to comply with the law.
Of course, orders of the primary judge found not to be supported by conclusions of this Court need to be set aside or varied as is appropriate having regard to the conclusions. Basten JA explains the changes in orders that should be made. I agree with the orders he proposes.

**********

Endnotes

Decision last updated: 20 June 2019

Medium Neutral Citation:	Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147
Hearing dates:	6 – 9 May 2019
Date of orders:	20 June 2019
Decision date:	20 June 2019
Before:	Basten JA at [1]; Gleeson JA at [224]; Preston CJ of LEC at [225]
Decision:	1. Subject to order 2, dismiss the appeal. 2. Order that: A. With respect to lots 5 and 6, DP 242210 (“the land”): (1) Set aside declarations (1) and (2) made in the Land and Environment Court and in place thereof: Declare that the consent to development application 171/90/79 granted by Dungog Shire Council (“the consent”) permitted use of the land only as a quarry primarily for the purpose of winning material for railway ballast, in breach of which the appellants have since 2012 used the land otherwise than primarily for winning railway ballast, in breach of the Environmental Planning and Assessment Act 1979 (NSW) (“the Planning Act”), s 4.2(1)(a). (2) Set aside declaration (4) and order (5) made in the Land and Environment Court. (3) Set aside declaration (6) made in the Land and Environment Court and in place thereof: Declare that the consent did not extend to the excavation of rock on lot 6, DP 242210 and that the activity of the appellants in extracting rock from lot 6 is carried out without development consent and in contravention of s 4.2(1)(a) of the Planning Act. (4) Set aside declaration (8) and order (9) made in the Land and Environment Court. (5) Set aside declaration (10) made in the Land and Environment Court and in place thereof: Declare that – (i) condition (vi) of the consent prevents the appellants permitting the transport of greatly more than 30% of the products of the quarry by public road on an annual basis without the specific approval of Dungog Shire Council; (ii) condition (vi) applies to rock excavated from the land the subject of the consent, whether processed and dispatched by public road from that land or from adjoining land, including lot 1, DP 1006375; and (iii) the appellants, in transporting in excess of 80% of quarry products by road since 2012 have been and continue to be in breach of condition (vi), and therefore in breach of s 4.2(1)(b) of the Planning Act. (6) Set aside orders (3), (7) and (11) made in the Land and Environment Court and in place thereof: Order that the appellants by themselves, their employees, agents and assigns, be restrained from: (a) using the land otherwise than as a quarry primarily for the purpose of winning railway ballast; and (b) excavating rock on lot 6 DP 242210 without a consent granted for such activity under the Planning Act; and (c) permitting the transport of greatly more than 30% of the quarry products derived from rock excavated from the land, and whether processed on the land or on adjoining land, including lot 1, DP 1006375, by public road on an annual basis without the specific approval of Dungog Shire Council. (7) Set aside declarations (12), (14), (16) and (18) and orders (13), (15), (17) and (19) made in the Land and Environment Court. (8) With respect to processing on lot 5, set aside declaration (20) and order (21) made in the Land and Environment Court. B. With respect to Environment Protection Licence No 1378: (9) Set aside declaration (22) and order (23) made in the Land and Environment Court, and in place thereof: Set aside the determination of the Environment Protection Authority set out in the Notice of Variation No 1071585, dated 2 April 2007, varying EPL 1378 to permit the extraction of between 500,000 tpa and 2 million tpa from the land. C. Stay of orders: (10) Subject to further order of this Court or the Land and Environment Court, and subject to the conditions set out below, stay order (6) for a period of three months from the date of this judgment, or until (a) the determination of the State significant development application lodged by the appellants with respect to the land, and (b) the grant of any further licence or authority required to carry out further works by way of extractive industry on the land, whichever is the earlier. Conditions of stay The stay is subject to the following conditions: (1) All operations conducted at or on the land the subject of the consent, and adjoining land, including lot 1, DP 1006375, on which processing activity is undertaken with respect to rock excavated from the land, shall be carried out in accordance with the interim Environmental Management Plan annexed to the judgment of the Land and Environment Court. (2) The applicants for State significant development consent take all necessary and reasonable steps to ensure the expeditious determination of that application. (3) If and to the extent any steps are required to be taken for the enforcement, variation or termination of the stay, otherwise than by agreement of the parties to these proceedings, application may be made for that purpose to the Land and Environment Court, to which these proceedings shall be deemed to be remitted for that purpose. 3. Order that the appellants pay the Council’s costs of the appeal.
Catchwords:	ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), ss 4, 29, 30, 31, 33, 76, 76A, 77, 84, 86, 87, 88, 90, 91, 91A, 92, 93, 95, 98, 104, 107, 109, 119, 158 Local Government Act 1919 (NSW), s 342U Pollution Control Act 1970 (NSW), ss 42, 48; Ch 3, Sch 1 Protection of the Environment Operations Act 1997 (NSW), ss 7, 45, 50, 58, 59, 133, 134, 162, 165; Sch 1, cl 19; Sch 5, Pt 3, cl 4 Supreme Court Act 1970 (NSW), s 69 Environmental Planning and Assessment Regulation 1980 (NSW), cll 26, 34, 41B, 44, 45, 50, 70, 73; Schs 3, 4 Environmental Planning and Assessment Model Provisions 1980, cll 5, 35, Sch 1
Cases Cited:	Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3 Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33 GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 Helman v Byron Shire Council (1995) 87 LGERA 349 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] 679 HCA 20 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Norman v Council of the Shire of Gosford (1975) 132 CLR 83; [1975] HCA 15 Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189 Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Pselletes v Randwick City Council (2009) 77 NSWLR 287; [209] NSWCA 262 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Sansom v Port Stephens Council [2006] NSWLEC 475; 147 LGERA 203 Sericott v Snowy River Shire Council [1999] NSWCA 480; 108 LGERA 66 Stebbins v Lismore City Council (1988) 64 LGRA 132 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 Woolworths v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422
Texts Cited:	NSW Government Gazette No 90, 9 July 1965, p 2168
Category:	Principal judgment
Parties:	Hunter Industrial Rental Equipment Pty Ltd (First Appellant) Buttai Gravel Pty Ltd (Second Appellant) Dungog Shire Council (First Respondent) Environment Protection Authority (Second Respondent)
Representation:	Counsel: T F Robertson SC/J E Lazarus/J Walker (Appellants) T G Howard SC/C M Novak (First Respondent) Submitting appearance (Second Respondent) Solicitors: DWF Australia (Appellants) Coutts Mallik Rees Lawyers (First Respondent) Environment Protection Authority (Second Respondent)
File Number(s):	2018/344439
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 4 Citation: [2018] NSWLEC 153 Date of Decision: 12 October 2018 Before: Molesworth AJ File Number(s): 2016/149935

Index					Par
A	Background				1
B	Present litigation				9
C	History of planning controls				17
(1)	Planning instruments			17
(2)	Existing use rights			26
D	Quarrying on the western land: the 1991 consent				35
(1)	Terms of consent			35
(2)	Whether consent valid and unconditional			43
(3)	Construing the 1991 consent			46
(a)	Statutory scheme		46
(b)	Reference to development application and environmental impact statement		57
(c)	Conclusions as to scope of relevant material		62
(d)	Case law		68
(4)	Alleged breaches of 1991 consent			81
(a)	Limitation by reference to purpose		81
(b)	Finding as to breach of limiting purpose		97
(c)	Extraction of material from lots 5 and 6		106
(d)	Quarrying on lot 6		119
(e)	Alleged breach of condition (i)		122
(f)	Alleged breach of condition (vi)		125
(i)	Did condition (vi) purport to apply to eastern land?	130
(ii)	Inconsistency with existing use rights	137
(iii)	Subsequent approval of varied proportion	142
(iv)	Conclusions – condition (vi)	165
E	Environment protection licence				166
(1)	Background			166
(2)	Legislative regime for licence variation			173
(3)	Grounds of review			174
(4)	Assessment of preconditions			187
(a)	Relevance of EPA’s opinion		187
(b)	Challenge to factual determination – s 50(2)		192
(c)	Challenge to factual determination – s 58(6)		195
F	Conclusions				205
G	Discretion				213
H	Costs				222
I	Orders				223