Menangle Sand and Soil Pty Ltd v Minister for Planning

[2020] NSWLEC 1425

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Menangle Sand and Soil Pty Ltd v Minister for Planning [2020] NSWLEC 1425

Hearing dates:

Conciliation conference on 8 September 2020

Date of orders:

10 September 2020

Decision date:

10 September 2020

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1)   The appeal is upheld.

(2)   Modification to development application DA 85/2865 "Menangle Quarry Extension – Modification 1" (MOD1) lodged by the Applicant on 22 May 2017 with the Minister for Planning, which includes (amongst other things) extending the life of the quarry by 15 years until 2035 by developing a new 13 ha, 2.8 kilometre (km) long southern extraction area (Stage 8) within Lot 203 DP 590247, is approved subject to the conditions set out in 'Annexure A' attached hereto.

Catchwords:

MODIFICATION APPLICATION – conciliation conference – agreement between the parties – orders

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017

Land and Environment Court Act 1979

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

Wollondilly Local Environmental Plan 2011

Category:

Principal judgment

Parties:

Menangle Sand and Soil Pty Ltd (Applicant)
Minister for Planning (Respondent)

Representation:

Counsel:
T Howard SC with C Ireland (Applicant)
J McKelvey (Respondent)

Solicitors:
MinterEllison (Applicant)
Department of Planning and Environment (Respondent)

File Number(s):

2018/342158

Publication restriction:

No

Judgment

1. COMMISSIONER: These proceedings arise following the decision made by the Minister’s delegate on 25 October 2018 to refuse to grant the applicant’s application made under (the now repealed) s 75W of Pt 3A of the Environmental Planning and Assessment Act 1979 (EP&A Act) to modify Development Consent No. 85/2865 granted by the Planning Minister in 1989 (the 1989 Consent).

2. The 1989 Consent approved the staged extraction of sand and soil from the floodplain areas of the Nepean River at Menangle in 7 stages by 2020. To date the applicant has extracted Stages 1, 2, 4, 5, and 6 and is currently completing Stage 7. The extraction of sand and soil associated with Stage 3 has not occurred.

3. The applicant now seeks approval to modify the 1989 Consent to:

• extend the life of the Menangle Quarry by 15 years until 2035 by developing a new 13 ha, 2.8 km long southern extraction area known as Stage 8. Noting that the development of Stage 8 is to be used as a substitute for Stage 3 area, which is to be relinquished and returned to the Department of Primary Industries Elizabeth Macarthur Agricultural Institute;

• the Stage 8 area will extend approximately 2.8 km along the Nepean River, within Lot 203 in DP590274 on the eastern side of the Hume Highway. Approximately 700,000 tonnes of sand and soil will be extracted over 15 years. Extraction will be sequential substages so the active extraction area will be a small portion of the total Stage 8 extraction area at any given time. The 13 substages will be commenced in the north (downstream) and progressively moving south (upstream). Each of these substages is to cover an area of approximately 1 ha, comprising 0.34 ha active extraction and 0.66 ha of stabilisation ground awaiting revegetation and is to take approximately a year to complete;

• install and operate a 500 m long overland conveyer under the Hume Highway Bridge to transfer material from the proposed Stage 8 area to the existing processing area;

• clear approximately 11 ha of River-Flat Eucalypt Forest on Coastal Floodplains of the New South Wales North Coast, Sydney Basin and South East Corner Bioregions, an endangered ecological community (EEC); and

• restore an area of 14.85 ha which is proposed to be conserved in perpetuity adjacent to the proposed extraction area to offset residual biodiversity impacts.

4. The proceedings were initially listed for hearing before me however, on the third day the parties requested that the hearing be adjourned for a period of 7 days to allow the notification of an amended application and draft conditions of consent before being referred to a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (the LEC Act). I facilitated the adjournment of the hearing and the Court listed the matter for a s34 conference on 8 September 2020. I presided over that conference.

5. At the conciliation conference the parties advised that they had resolved the merits of the application and reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involves the Court upholding the appeal and granting consent to the modification to Development Application No. DA 85/2865 subject to agreed conditions of consent.

Jurisdictional matters

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties have identified the jurisdictional prerequisites of relevance in these proceedings and explained how the jurisdictional prerequisites have been met in an Agreed Statement – entitled Jurisdictional Prerequisites (marked Exhibit “A” and placed with the Court file).

7. In that regard I accept that the s 75W modification request currently before the Court was submitted to the respondent on 22 May 2017, being before 1 March 2018. The Secretary has not informed the application that insufficient information had been provided and that the request would not be dealt with under s 75W. As a consequence, the combined effect of cll 3BA and 12 of Sch 2 and cl 8J(8) of Sch 4 to the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017 permits the applicant’s 75W request for the modification to be determined by the Court.

The resolution of the merits of the application as between the parties

8. The parties agree that the amended modification application is characterised as development for the purpose of extraction of sand and soil from Stage 8 at the Menangle Quarry Site (including an extension of the life of the quarry by 15 years and ancillary works), being development that is permissible pursuant to grant of modification under s 75W of the EP&A Act. The modification affects Lots 202 and 203 in DP 590247 located within the Wollondilly Shire Local Government Area zoned RU1 Primary Production under the Wollondilly Local Environmental Plan 2011. Development for extractive purposes is permissible with consent on this land in accordance with cl 7(3) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007.

9. The respondent is satisfied that the amended modification application, by the amended design and information if carried out in accordance with the agreed set of conditions marked Annexure ‘A’ to the Agreement Between Parties (proposed conditions of consent), will not have unacceptable impacts on upon the Hawkesbury-Nepean River in respect of bank stability, flooding impacts and river ecology.

10. The respondent is satisfied that the amended modification application, by the amended design and information if carried out in accordance with the proposed conditions of consent, will not have unacceptable impacts on an endangered ecological community, being the River-Flat Eucalypt Forest on Coastal Floodplains on the New South Wales North Coast, Sydney Basin and South East Corner Bioregions EEC.

11. The respondent is satisfied that the amended modification application, by the amended design and information if carried out in accordance with the proposed conditions of consent, will not have unacceptable impacts on the water quality of the Nepean River and groundwater.

12. The respondent is satisfied that the amended modification application, by the amended design and information if carried out in accordance with the proposed conditions of consent, will provide an adequate and appropriate biodiversity offset strategy.

13. The respondent is satisfied that the amended modification application, by the amended design and information if carried out in accordance with the proposed conditions of consent, will not have unacceptable impacts on matters of public interest.

14. The parties agree that matters set out in the environmental planning instruments listed at paragraph 13 of the respondent's Amended Statement of Facts and Contentions filed 27 March 2020, are not binding on the Court in determining the amended modification application, but they are instruments to which regard may be had in the exercise of the s 75W discretion. The parties agree that the s 75W modification may be granted even if the terms of these instruments will be contravened or breached by the amended modification application. As such, the parties agree that there is no jurisdictional prerequisite requirement that the amended modification application meet the strategic aims or provisions of those environmental planning instruments as a precondition to the grant of the s 75W modification.

Notification of the application and the proposed conditions of consent

15. The respondent confirms that it exhibited or otherwise notified the original and amended modification applications, and proposed the proposed conditions of consent in Annexure A to the s 34 Agreement between the parties as follows:

Original modification application (as submitted)

1. placed a public exhibition notice in the Macarthur Chronicle on 6 June 2017 and The Advertiser (Campbelltown/Camden-Narellan/Wollondilly) on 7 June 2017;

2. publicly exhibited the application and accompanying EA from 7 to 21 June 2017 on the Department's website and at its Information Centre, Wollondilly Shire Council's office and the Nature Conservation Council's office; and

3. notified relevant State government authorities and Wollondilly Shire Council and Campbelltown City Council;

Amended modification application

1. placed a further public exhibition notice in the Macarthur Chronicle on 19 February 2020 and The Advertiser (Campbelltown/Camden-Narellan/Wollondilly) on 19 February 2020;

2. the amended modification application was subject to a further period of public notification from 19 February 2020 to 4 March 2020 on the Department's website and at its Information Centre, Wollondilly Shire Council's office and the Nature Conservation Council's office; and

3. further notification to relevant State and Local government authorities, and community groups.

Further invitation for submissions on the amended modification application

1. The respondent also confirms that it sent letters to relevant State and Local government authorities and community groups on 24 July 2020 and invited those third parties to provide further submissions prior to the hearing.

Agreed conditions of consent

1. The respondent confirms that on 28 August 2020 notification letters enclosing the proposed conditions of consent, were sent to the relevant State and Local government authorities and community groups who made a submission on the amended modification application. The respondent invited those parties to make any final written submissions by 4 September 2020, or alternatively to attend the s 34 conciliation conference for the purpose of making oral submissions.

2. The only written submission made in response to the notification of the conditions of consent was received from Transport for NSW, and the respondent is satisfied that the matters raised therein have been satisfactorily addressed by the amended modification application and the proposed conditions of consent.

Owner’s Consent

16. The land the subject of the 1989 Consent is as follows:

1. Lots 201-203 DP 590247

2. Lot 1 DP 168893

3. Lot 11 DP 531897

4. Lot 4 DP 595181

5. Lot 3 DP 593211

6. Lot 2 DP 236059

7. Lot 2 DP 116069

17. This land now known according to the folio identifiers identified in the table below. The landowners are identified in column three and owner’s consent has been provided.

Lot	Deposited Plan	Land Owner	Owners Consent
Lot 10	DP1022204	NSW Harness Racing Club Ltd, trading as Club Menangle ABN: 34 000 002 666	Letter from Club Menangle to Department dated 30 November 2017
Lot 1	DP1140461
Lot 2	DP1187569
Lot 2	DP1050479	DPI (Elizabeth Macarthur Agricultural Institute)	Letters from DPI to Department dated 3 February 2017 and 29 June 2017
Lot 2	DP1133910	DPI (Elizabeth Macarthur Agricultural Institute)	Letters from DPI to Department dated 3 February 2017 and 29 June 2017
Lots 1	DP1187569	Campbelltown City Council	Letter from Council to Department dated 23 August 2017
Lot 105	DP249189	Moreton Part Pty Ltd, aft Hillcrest Park Trust	Letter from Moreton Part Pty Ltd, aft Hillcrest Park Trust to Department dated 28 July 2017
Lot 21	DP581462	Central Creamery Pty Ltd, atf Central Creamery Unit Trust	Letter from Central Creamery Pty Ltd, atf Central Creamery Unit Trust to Department dated 28 July 2017
Lots 201-203	DP590247	EL Bethel P/L ABN: 36 087 585 260	Letter from EL Bethel P/L to Department dated 28 July 2017

18. Evidence of the provision of landowner consent documents was individually provided to the respondent by post on or around July-August 2017 and were accepted by the respondent.

Conclusion

19. The parties consider that the jurisdictional prerequisites to the proper exercise of the power to approve the amended modification application have been met and for the reasons outlined above I accept that to be the fact on the evidence before me.

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

21. The Court orders that:

1. The appeal is upheld.

2. Modification to development application DA 85/2865 "Menangle Quarry Extension – Modification 1" (MOD1) lodged by the Applicant on 22 May 2017 with the Minister for Planning, which includes (amongst other things) extending the life of the quarry by 15 years until 2035 by developing a new 13 ha, 2.8 kilometre (km) long southern extraction area (Stage 8) within Lot 203 DP 590247, is approved subject to the conditions set out in 'Annexure A' attached hereto.

………………………….

S Dixon

Senior Commissioner of the Court

Annexure A (2127042, pdf)

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Amendments

17 September 2020 - Correction to Applicant's Counsel on cover sheet.

Decision last updated: 17 September 2020