Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council

Hunter Industrial Rental Equipment Pty Ltd (the appellants) appealed to the Court of Appeal of New South Wales against decisions of the Land and Environment Court concerning a development consent granted by Dungog Shire Council (the respondent) for a quarry. The dispute centred on the scope and conditions of this consent, particularly regarding the primary purpose of the quarry, the area of excavation, and the transport of quarry products. The appellants also challenged a variation to an Environment Protection Licence issued by the Environment Protection Authority.

The Court of Appeal was required to determine whether the development consent permitted the use of the land as a quarry for purposes other than primarily winning material for railway ballast, and whether quarrying outside a specified area constituted a breach. Further issues included whether the consent extended to excavation on an adjoining lot, and whether the transport of quarry products by road in excess of 30% annually breached a condition of the consent. The court also considered the validity of the Environment Protection Authority's variation to the licence.

The Court of Appeal reasoned that the development consent, when construed by reference to the development application and environmental impact statement, limited the quarry's purpose to being primarily for railway ballast. It found that the appellants had breached this condition by using the land for other purposes since 2012 and by excavating on lot 6, DP 242210, which was not covered by the consent. The court also held that a condition limiting road transport of quarry products to "greatly more than 30%" applied to products processed on adjoining land and that the appellants had breached this condition by transporting over 80% by road. The variation to the Environment Protection Licence was also set aside.

The appeal was largely dismissed, with the Court of Appeal setting aside certain declarations and orders of the Land and Environment Court and substituting its own declarations and orders. These new orders declared breaches of the development consent regarding the primary purpose of the quarry, excavation on lot 6, and road transport of products. The appellants were restrained from continuing these breaches. However, a stay of orders was granted for three months, subject to conditions including compliance with an interim Environmental Management Plan and the expeditious determination of a State significant development application. The appellants were ordered to pay the Council's costs of the appeal.