Kay and Ors v Wingecarribee Council - [2007] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION: Kay and Ors v Wingecarribee Council [2007] NSWLEC 50

PARTIES:
APPLICANT
Arthur Geoffrey Kay, Lesley S. Kay and Gordon Kay
RESPONDENT
Wingecarribee Council

FILE NUMBER(S): 10551 of 2006

CORAM: Hussey C

KEY ISSUES: Appeal :- Section 121B Order - Cease unauthorised quarrying activities and rehabilitate area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Cassanitti v Canada Bay Council [2002] 123 LGERA 53;
Stuchbury v Pittwater Council [1999] NSWLEC 177

DATES OF HEARING: 04/10/2006

DATE OF JUDGMENT:
8 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Baird, barrister
RESPONDENT
Mr B. Bilinsky, solicitor
of B. Bilinsky and Co.

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

Date : 9 February 2007

10551 of 2006 Arthur Geoffrey Kay, Lesley S. Kay and Gordon Kay v Wingecarribee Council

JUDGMENT
Background.

1 This appeal was lodged against a Section 121B Order to cease all quarrying activities and rehabilitate an excavated area on a rural property situated at Lot 40 Inveray Road, Sutton Forest. The property is described as Lot 40 in DP 751284 and has an area of approximately 65 ha.

2 The property is zoned 1(a) (Rural “A”) under the Wingecarribee Local Environmental Plan.

3 The proceedings commenced with a view and the parties agreed that the matter be determined by way of an on-site hearing (OSH). Following the view and hearing of preliminary submissions, I gave my initial findings that the existing scope and presentation of the material excavation and transport operations on the site were extensive and could be classified as "quarrying/extractive industry", which apparently would require development consent. No development consent has been issued for this type of activity on the subject site.

4 Following this, the applicant gave an undertaking to cease all quarrying activities and transportation of extracted material off-site.

5 However, Mr Baird’s submissions raised some detailed questions about the validity of the Order and accordingly the matter was adjourned to allow the respondent to reply. This resulted in the submission of detailed written submissions.

The Order.

6 The s 121B Order No. 1 was issued on 23 May 2006 and relevantly included the following provisions:

The Council of the Shire of Wingecarribee (the ”Council”) hereby orders you to cease all quarrying activities and rehabilitate the quarried area in accordance with a rehabilitation plan approved by council on your property at Lot 40 DP751284 Inveray Road, Sutton Forest (the “Property”), within the time specified.

Environmental Planning and Assessment Act 1979

No approval has been granted for quarrying operations under the provisions of the Environmental Planning and Assessment Act, 1979.

Submissions.

7 In the first instance, Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 50
Decision Date: 8 February 2007

CaseChat Overview and Summary

The appeal in this case was brought by Arthur Geoffrey Kay, Lesley S. Kay and Gordon Kay against the Wingecarribee Council. The dispute related to a Section 121B Order made by the Council to cease all quarrying activities and rehabilitate an excavated area on a rural property located at Lot 40 Inveray Road, Sutton Forest. The property is zoned as Rural “A” under the Wingecarribee Local Environmental Plan and is approximately 65 hectares in size. The applicants were ordered to cease all quarrying activities and rehabilitate the quarried area in accordance with a rehabilitation plan approved by the Council. The applicants appealed against the Order, contending that the excavation works were for a farm dam and, therefore, did not require development consent.

The primary legal issues the court had to decide were whether the Order was valid and if the applicants' activities on the property constituted quarrying, requiring development consent. The applicants argued that the excavation works were for a farm dam, and thus not subject to the requirement for development consent. The court, however, disagreed, finding that the scale of the excavation did not present as a farm dam and was, in fact, consistent with quarrying activities. The court also considered whether the Order was valid, specifically if it provided adequate reasons for its issuance. The court noted that the Order should make intelligible the basis for the decision to issue the order, so that affected persons have sufficient information to decide whether to accept the order or appeal it.

The court found that the Order was valid and appropriate, given the scale of the unauthorised excavation and the potential environmental damage. The court noted that the applicants had undertaken extensive excavation and transport operations that could be classified as quarrying, which apparently required development consent. The court considered that rehabilitation of the excavated area was necessary to prevent environmental damage and ordered the applicants to submit a rehabilitation plan within three months, including an appropriate timeframe to complete the works and a landscape provision and maintenance program. The court allowed the appeal in part, modifying the original Order to clarify the requirements for the rehabilitation works.

In summary, the Land and Environment Court upheld the validity of the Section 121B Order issued by the Wingecarribee Council. The court found that the applicants' activities on the property constituted quarrying, requiring development consent, and that the Order was valid and appropriate. The court modified the original Order, requiring the applicants to submit a rehabilitation plan within three months, including an appropriate timeframe to complete the works and a landscape provision and maintenance program. The court emphasised the importance of providing adequate reasons for the issuance of an order, ensuring affected persons have sufficient information to decide whether to accept the order or appeal it.

Orders