Monaltrie Area Community Association Incorporated v Santin

[2025] NSWLEC 38

Land and Environment Court

New South Wales

Medium Neutral Citation:

Monaltrie Area Community Association Incorporated v Santin and Anor [2025] NSWLEC 38

Hearing dates:

11 October 2024

Date of orders:

23 April 2025

Decision date:

23 April 2025

Jurisdiction:

Class 4

Before:

Robson J

Decision:

See orders at [143]

Catchwords:

ADMINISTRATIVE LAW — Judicial review — Development consent and conditions imposed by local government authority — Whether decision to approve modification application was invalid — Five grounds of review — Lapse of consent — Consideration of acoustic and noise impacts as an essential matter — Forming state of satisfaction that development was substantially the same — Satisfaction reasonably open or not — Lawfulness in part of condition — Relief in amended summons granted

Legislation Cited:

Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 4.16, 4.17, 4.53, 4.55

Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 59.9

Cases Cited:

ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34

Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75

Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182

Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184

Arrage v Inner West Council [2019] NSWLEC 85

Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21

Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99

Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395

Boral Resources (Country) Pty Ltd v Clarence Valley Council; Cemex Australia Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134

Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263

Cameron v Nambucca Shire Council (1997) 95 LGERA 268

Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215

Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; (2006) 148 LGERA 11

Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65

FeldkirchenPty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227; (2022) 254 LGERA 114

Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134

Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231

Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; (2003) 127 LGERA 333

House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Inglis v Buckley [2023] NSWLEC 77

IOF Custodian Pty Limitedatf the 105 Miller Street North Sydney Trust v Special Minister of State [2022] NSWLEC 86

J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109

K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23

Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360

Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277

Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455

Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11

Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16

Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162; [1990] FCA 229

Minister for Immigration and Ethnics Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20

Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423

Mison v Randwick Municipal Council (1991) 23 NSWLR 734

Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465

Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143

South East Forest Rescue Incorporated v Bega Valley Shire Council [2011] NSWLEC 250; (2011) 211 LGERA 1

South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69

Trump International Golf Club Scotland Ltd v The Scottish Ministers [2017] 1 All ER 307; [2015] UKSC 74

Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185; (2008) 160 LGERA 20

Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181

Westfield Management Limited v Perpetual Trustee CompanyLimited [2006] NSWCA 245

Yule v Smith [2012] NSWCA 191

Texts Cited:

Macquarie Dictionary, online ed, March 2025

Category:

Principal judgment

Parties:

Monaltrie Area Community Association Incorporated (Applicant)
Michael Bruno Santin (First Respondent)
Lismore City Council (Second Respondent)

Representation:

Counsel:
R White (Applicant)
D Hunter, solicitor (First Respondent)
N Eastman SC (Second Respondent)

Solicitors:
Hones Lawyers Pty Ltd (Applicant)
David Hunter Law (First Respondent)
Marsdens Law Group (Second Respondent)

File Number(s):

2024/00009938

Publication restriction:

Nil

Judgment

Introduction

1. Monaltrie Area Community Association Incorporated (‘MAC’) has brought Class 4 judicial review proceedings challenging the determination of Lismore City Council (‘Council’) on 10 October 2023 to approve a modification application lodged by Michael Bruno Santin (‘Santin’) to extend the life of a quarry known as Riverbank Quarry at 72 River Bank Road, Monaltrie (‘site’) for a period of 12 years.

2. MAC seeks declaratory relief that the approval is invalid and consequential relief restraining Santin from acting on the modification.

3. MAC advances five grounds of review. Ground 1 concerns Council’s power to approve the modification on the basis that the original consent had lapsed and could not be modified. Ground 2 concerns a failure to properly consider the acoustic impacts of the modification. Ground 3 concerns Council’s lack of the requisite state of satisfaction that the development the subject of the modification was substantially the same development as the development the subject of the original consent. Ground 4 concerns the unreasonableness of any state of satisfaction reached upon Ground 3. And, Ground 5 concerns Council’s lack of power to impose part of a condition which provides for subsequent variation of the modified development’s operating hours.

4. Both Santin and Council, as the first and second respondents, respectively, opposed the relief sought by MAC. Council was the active respondent, with Santin adopting the position and submissions of Council.

5. For the reasons that follow, I find that MAC has established its first ground of review that Council did not have power to approve the modification application because the original consent had lapsed, and as such, MAC is entitled to the relief it has sought in its amended summons filed 3 May 2024.

Structure of judgment

6. The reasons for judgment are structured as follows. I will first summarise the salient background facts, which are largely uncontentious. I will then outline the grounds of review raised by MAC and consider the parties’ submissions. Further facts, some controversial, will be noted in my consideration of the discrete grounds. While there is some overlap between a number of MAC’s grounds, given the manner in which the parties have presented their arguments and the applicable legal principles, with some exception in relation to Ground 3 and Ground 4, it is necessary to deal with each ground separately which involves some unavoidable repetition in my consideration.

Background

7. On 12 May 1993, Council granted development consent for an extension to an existing hard rock quarry extracting columnar basalt in the northern rear portion of a 16.3ha site at 72 River Bank Road, Monaltrie, located approximately 6km south of Lismore (‘Original Consent’).

8. The Original Consent contained the following conditions:

“…

2.   This consent shall permit quarrying for not more than twenty-five (25) years from the date of the issue of the Section 94 Notice of Determination.

3. This consent shall lapse on 30/12/2018 at which time extraction shall have ceased and the site restored in accordance with the detailed Plan of Management.

…”

9. It is agreed between the parties that the date of commencement pursuant to the Original Consent was 12 May 1993.

10. The Original Consent was modified on 8 March 1994, 7 May 1998, 13 May 2005, 5 December 2005 and, most relevantly in this case, 28 July 2006 (‘2006 Consent’).

11. The 2006 Consent contained the following conditions:

“…

2.   This consent shall permit quarrying for not more than twenty-five (25) years from the date of the commencement of the quarry. This is to be the date upon which the first rock won from the trial blast conducted 8-10 June, 1992 is removed [from] the site or two (2) years from the date of issue of the S92 Notice of Determination.

3.   This consent shall lapse the date 25 years and nine months from the date of commencement at which time extraction shall have ceased and the site restored in accordance with the detailed Plan of [M]anagement. Any extension during the final nine months shall be for the purposes of facilitating the restoration.

…”

12. On 8 March 2022, Santin lodged modification application DA92/523-5 with Council to extend the life of the quarry for 16 years from 12 May 2020 to 12 May 2036 (‘Modification Application’), pursuant to s 4.55 of the Environmental Planning and Assessment Act 1979 (NSW) (‘EPA Act’). The Modification Application was amended during the assessment process including, first, to extend the life of the quarry for 12 (not 16) years to 12 May 2032; and second, to limit quarrying to the southern face of the site.

13. In support of the Modification Application, Santin lodged various reports including noise impact assessment reports prepared by lngen Consulting dated 17 February 2022 and 14 December 2022 (‘Ingen Consulting reports’); a traffic impact statement; a koala assessment report; a soil and water management plan; a silica risk assessment; a wind assessment report; and a town planning report dated 22 February 2022. The town planning report and the material accompanying the Modification Application noted that the period in which the quarry was permitted to operate expired on 12 May 2020 and that the quarry had been operating up until 8 December 2020.

14. On 23 January 2023, MAC submitted to Council an expert acoustic report by Day Design dated 19 January 2023 (‘Day Design report’) which comprised a peer review of the Ingen Consulting noise impact assessment report dated 17 February 2022.

15. Following a request for further information by Council, Santin lodged a further noise impact assessment report dated 14 July 2023 prepared by lngen Consulting (‘Further NIA’), which was based upon an amendment to the Modification Application involving the removal of any quarrying operations along the eastern face of the quarry and modelled the noise impacts on the assumption that “only the southern section of the quarry would be quarried”.

16. Bridges Acoustics, a noise consultancy, who had been engaged by Council to review identified acoustic issues associated with the Modification Application, prepared a report dated 28 July 2023 (‘Bridges Report’) which considered the Further NIA and concluded that “the proposed ongoing operation of [the quarry] has indicated a number of significant deficiencies with the [Further NIA]. The deficiencies discussed in this review are considered significant, and Council should [require] a further revised assessment addressing the identified deficiencies before the project can proceed”.

17. Council also engaged an independent town planner, Margaret Roberts of GAT & Associates, to assess the Modification Application. GAT & Associates prepared a detailed assessment report recommending refusal of the modification based primarily on the acoustic impact of the proposal, and also prepared and delivered a “Councillor Briefing PowerPoint” at a “Councillor Briefing Session” on 10 October 2023 which identified the “key” issues as: “Expiry of consent”; “Substantially the same”; “Amenity” (which included traffic); impact on waterways; dust and noise; protection of koala population; and history of compliance issues.

18. The GAT & Associates assessment report was adopted by Council’s “Development Assessment Officer” who provided a detailed assessment report dated 10 October 2023 (‘Council Assessment Report’), which recorded that 35 public submissions had been received in response to the public notification of the Modification Application (between 21 March and 18 April 2022) including 25 submissions against the proposal and 10 submissions in favour. The Council Assessment Report recommended refusal of the Modification Application and provided draft reasons for such refusal.

19. On 10 October 2023, Council approved the Modification Application subject to conditions including, relevantly:

“…

2   This consent only permits the quarrying [of] the area marked as the 'southern face' on the approved plans and documents, for twelve (12) years from 12 May 2020 (12 May 2032).

3   The cessation of quarrying activity is to occur on twelve (12) years and nine months from 12 May 2020 at which time extraction shall have ceased and the site restored in accordance with the detailed and approved Operational Plan of Management (POM) detailed in condition 4.

…

11   The hours of operation shall be limited to 7:30am to 4:30pm, Monday to Saturday except for drilling, crushing and blasting activities which shall be restricted to the hours 8:00am to 4:30pm Monday to Friday.

No work is to be carried out Sunday or public holidays. For the purposes of this condition “work” includes all activities on the premises associated with the project, during construction and operation with the exception of plant maintenance, landscaping and office works.

The following activities may take place outside the above hours:

(a)   the delivery of materials required by the police or other authorities for safety reasons; and

(b)   activities required in an emergency to avoid the loss of life, property and/or to prevent environmental harm.

The hours of operation may be varied with the prior written approval of Council.
Any request to vary the hours of operation must include:

(a)   details of the nature and justification for activities to be conducted during the varied construction hours

(b)   evidence that appropriate consultation has been undertaken with potentially affected sensitive receivers and

(c)   a noise impact assessment using the guidelines in the Noise Policy for Industry (EPA 2017), and other relevant EPA noise guidelines in force at the time of assessment.

Reason: To preserve the environment and the existing or likely future amenity of the locality.

…

19   Operational plant (crushers, screening, facilities, drilling equipment, dozers, front end loaders and excavators), utilised on a temporary and contract basis shall comply with and meet relevant criteria and standards as specified by the Environment Protection Authority.

All vehicles and machines used as part of the operation must comply with the Protection of the Environment Operations Act 1997 and all regulations made under that Act and be fitted with properly maintained emission controls relevant to their date of manufacture.

...

…

33   Prior to the recommencement of any quarrying activities, a noise impact assessment must be submitted to, and approved by, Council. This noise impact assessment must be prepared by a suitably qualified acoustic expert, and must demonstrate full compliance with the NSW Noise Policy for Industry.

This noise impact assessment must demonstrate, at a minimum, that operational noise generated at the premises will not exceed the noise limits in the table below:

Receiver

Sensitive Receiver Noise Limit

(day) L_{Aeq 15min}

55 Chilcott Street

40

41 Chilcott Street

40

50 River Bank Road

40

56 Chilcott Street

40

96 River Bank Road

40

Alternatively, the applicant may provide evidence of private agreement(s) with any impacted property owner to have them removed as a sensitive receiver from the noise impacts of the quarrying activity. Where a property is removed as a sensitive receiver, the required evidence for any private agreement is a restriction of use on the land to be registered on the title of the land with the Land Titles Office under Section 88B of the Conveyancing Act 1919.

…

…”

Grounds of review

20. In its amended summons filed 3 May 2024, MAC seeks declaratory and consequential relief and raises five grounds:

1. Council did not have power to approve the Modification Application because the consent sought to be modified had lapsed at the date of Council’s purported approval of the Modification Application; or alternatively, Condition 2 of the 2006 Consent limited the period during which the development could be carried out and the consent could not be modified after expiry of that period (‘lapse of consent ground’).

2. Council either failed to consider, or deferred consideration of, an essential matter and a mandatory consideration, being an assessment of the acoustic impacts of the Modification Application (‘acoustic ground’).

3. Council did not form the requisite state of satisfaction that the development the subject of the Modification Application was “substantially the same development” as the development the subject of the Original Consent, and therefore, did not have power to grant the approval (‘substantially the same development ground’).

4. Alternatively to Ground 3, any such state of satisfaction that may have been reached by Council was not reasonably open to it (‘satisfaction not reasonably open ground’).

5. Condition 11, which provided that “the hours of operation may be varied with the prior written approval of Council”, is unlawful because, pursuant to s 4.17 of the EPA Act, any such variation can only be undertaken by Council after assessment of an application made under s 4.55 of the EPA Act (‘Condition 11 variation ground’).

Statutory framework

21. Sections 80(1) and 80A(1) of the EPA Act at the time of the grant of the 2006 Consent (now s 4.16 and s 4.17, respectively) relevantly provided:

80   Determination

(1)   General A consent authority is to determine a development application by:

(a)   granting consent to the application, either unconditionally or subject to conditions, or

(b)   refusing consent to the application.

80A   Imposition of conditions

(1)   Conditions—generally A condition of development consent may be imposed if:

(a)   it relates to any matter referred to in section 79C (1) of relevance to the development the subject of the consent, or

(b)   it requires the modification or surrender of a consent granted under this Act or a right conferred by Division 10 in relation to the land to which the development application relates, or

(c)   it requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates), or

(d)   it limits the period during which development may be carried out in accordance with the consent so granted, or

(e)   it requires the removal of buildings and works (or any part of them) at the expiration of the period referred to in paragraph (d), or

(f)    it requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 79C (1) applicable to the development the subject of the consent, or

(g)   it modifies details of the development the subject of the development application, or

(h)   it is authorised to be imposed under section 80 (3) or (5), subsections (5)–(9) of this section or section 94, 94A, 94EF or 94F.

22. Lapsing of a development consent is dealt with pursuant to s 4.53 of the EPA Act, which relevantly provides:

4.53   Lapsing of consent (cf previous s 95)

(1)   A development consent lapses—

(a)    5 years after the date from which it operates if the development consent commences operation after the prescribed period, or

(b)    5 years after the date from which it operates if the development consent commences operation during the prescribed period, or

(c)    2 years after the date on which the development consent would otherwise have lapsed if the development consent commenced operation before, and has not lapsed at, the commencement of the prescribed period.

…

(4)   Development consent for—

(a)    the erection of a building, or

(b)    the subdivision of land, or

(c)    the carrying out of a work,

does not lapse if building, engineering or construction work relating to the building, subdivision or work is physically commenced on the land to which the consent applies before the date on which the consent would otherwise lapse under this section.

…         

23. The Modification Application was made pursuant to the current s 4.55 of the EPA Act, which relevantly provides:

4.55   Modification of consents—generally (cf previous s 96)

…

(2)    Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)    it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

…

(3) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4)    The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

…

Submissions

Ground 1 – lapse of consent ground

MAC’s position

24. MAC submits that there must be an existing development consent upon which an applicant can rely for the purposes of making an application to modify the consent pursuant to s 4.55 of the EPA Act and that once a development consent has expired, it cannot be relied upon for the purposes of a modification application pursuant to s 4.55.

25. Relying upon s 80(1) of the EPA Act (as it stood at the time of the grant of the 2006 Consent) which provided that a consent authority is able to determine an application by granting consent subject to conditions and s 80A(1) which provided for the imposition of conditions, MAC submits that as a matter of construction, Conditions 2 and 3 of the 2006 Consent (at [11] above) make it plain that quarrying at the hard rock quarry the subject of the consent was permitted for no more than 25 years from the date of the commencement of the quarry and that the end date of the consent was 12 May 2020. Further, MAC submits that by nine months later, being 12 February 2021, the site was required by the conditions to be restored to its original condition. MAC submits that period was the “envelope” of the development consent, and as such, the rights associated with the consent “terminated” in accordance with the conditions.

26. MAC submits that s 80A(1)(d) (now s 4.17(1)(d)) of the EPA Act permits the imposition of time-limited conditions of consent, and that the proposed development specifically identified extraction for a specified period and required the restoration of land afterwards in circumstances where the 2006 Consent imposed a specific end date (agreed to be 12 May 2020) on the quarrying of rock and the operation of the quarry.

27. MAC submits that applying the accepted principles of construction of development consents, Conditions 2 and 3 were “time-limited” such that the 2006 Consent itself ceased to have effect at the end date (being 12 May 2020) or, at the least, nine months thereafter (when restoration was required to have been completed).

28. MAC accepts its position raises a matter of construction and although the conditions talk of “lapse”, this is not to be understood in the (technical/legal) sense otherwise provided for in s 4.53 of the EPA Act, but rather, in the ordinary, everyday sense of “becoming void” or “expired”. It also does not embrace words such as “spent” or “exhausted” as these words are not used in Conditions 2 and 3, but maintains that Condition 2 must be read in the light of Condition 3 and that the conditions confine the event to a limited period and make clear what shall happen at the end date – being extraction will have ceased, and the site restored.

29. MAC points to cases involving modification applications where conditions with similar words have been considered. In particular, in Hilltop Planners Pty Ltd v Great Lakes Council [2003] NSWLEC 214; (2003) 127 LGERA 333 (‘Hilltop Planners’) where a development consent was granted subject to a condition requiring certain works to be undertaken in several stages, the Court held that the failure to complete stage 1 of the development by a particular date had the effect that the consent had lapsed in its ordinary sense of expiry and rights under the consent were thereupon terminated, such that it could not thereafter be relied upon for the purposes of making an application (then pursuant to s 96 of the EPA Act, now s 4.55) to modify the consent.

30. MAC submits that the current facts are different to those considered by this Court in Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 (‘Agricultural Equity Investments’) and Kendall Street Developments Pty Ltd v Byron Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 (‘Kendall Street Developments’), which decisions are relied upon by Council.

31. In Agricultural Equity Investments, an issue arose as to whether a development consent granted in 1988 was “exhausted or spent” in circumstances where a condition of the consent for an open cut gold mine required certain things to be undertaken “during the life of the development”, or “at the end of the mine life”, which were not undertaken. Although the applicant sought a declaration that the development consent could not be modified, the Court held (at [94], [97]) that conditions referring to “the end of the mine life” did not impose a specific end date for the operation of the gold mine under the consent. MAC distinguishes that decision from the present case on the basis that, apart from the operation of a gold mine, the Court found that the relevant development consent also authorised the operation of an ore treatment plant to extract gold on the land such that even if the mine itself had ceased to yield gold, such processing operations were able to continue into the future.

32. In Kendall Street Developments, a condition of a development consent for the commercial use of existing buildings provided that the consent “shall cease if at any time” a defined erosion escarpment “comes within 50 metres of any building associated with this development” where, at the time of consideration of the relevant modification application, the escarpment had eroded and was within 50 metres of the building. While the Court held that the condition placed a temporal limitation on the “development”, it did not impose a limitation on the development consent itself, such that the development consent continued to exist. MAC submits that Kendall StreetDevelopments is materially different to the present case because the condition in that case did not place a time limitation on the use of the land itself and there was no requirement for the land to be restored to its original state shortly after the use ceased.

33. MAC emphasises that the wording in Condition 2 of the 2006 Consent is clear, being “[t]his consent shall permit quarrying for not more than twenty-five (25) years from the date of the commencement of the quarry”, and that the wording is directed to the actual operation of the consent such that the condition is not limited to the development. MAC maintains that Conditions 2 and 3 did not mean that the quarrying could not continue on the site after 25 years, “but [that] it [would require] a new development application (and a fresh development consent) to authorise it”.

Council’s position

34. Council contends that the word “lapse” in Condition 3 does not have the effect of making the consent inoperative (and therefore not susceptible to modification), because that condition does not effect the statutory lapse of the consent. Council submits that is because there is “no question” that a time-limited consent can be the subject of a modification application after the time limitation has expired citing both Agricultural Equity Investments and Kendall Street Developments. Council accepts that if a development consent has “lapsed” within the specific meaning of that term in s 4.53 of the EPA Act, then it is not susceptible to modification under s 4.55.

35. Council submits that MAC cannot demonstrate that the word “lapse” (when used in Condition 3) can cause the consent to “lapse” in the statutory meaning under s 4.53, because a consent cannot “lapse” once the work in it is physically commenced under s 4.53(4), in which case it exists in perpetuity and runs with the land which Council says is consistent with the present case.

36. Council submits that the imposition of a condition (such as Condition 3) to effect the lapsing of a development consent at the end of a defined period and after physical commencement would be beyond power if the word “lapse” were interpreted to mean the same as “lapse” in s 4.53 (and its statutory predecessors). As a result, Council submits that if a statutory lapse is not effected, which Council maintains it cannot be in light of s 4.53(4), then the 2006 Consent was susceptible to modification and Council’s decision to do so was within the power conferred by s 4.55 of the EPA Act.

Consideration

37. The principles relating to the construction of development consents are not controversial, and for present purposes may be briefly considered. First, a development consent is to be construed according to its terms, having regard to its enduring nature which encourages a fair but liberal reading of the rights it confers: House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 (‘House of Peace’) at [41]; Bunderra Holdings Pty Ltd v Pasminco Cockle Creek Smelter Pty Ltd (Subject to Deed of Company Arrangement) (2017) 96 NSWLR 434; [2017] NSWCA 263 at [158]. Second, a development consent is to be construed not as a document drafted with legal expertise, but to achieve practical results: Westfield Management Limited v Perpetual Trustee Company Limited [2006] NSWCA 245 at [36]; Baulkham Hills Shire Council v Ko-veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]-[97], [105]. Third, a development consent (including a condition of consent) “is to be determined in accordance with the same principles of statutory interpretation that are applicable to interpreting other legal documents. Planning permissions are not in a special category requiring adoption of a completely different approach to their interpretation”: J.K. Williams Staff Pty Limited v Sydney Water Corporation [2021] NSWLEC 23; (2021) 249 LGERA 109 (‘J.K. Williams’) at [61].

38. In addition, I am conscious that a development consent (including a modification of a development consent) granted under Pt 4 of the EPA Act (here, s 4.55) should be construed having regard to the statutory provisions governing its grant: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 at [268]; J.K. Williams at [59]; and that a development consent is controlled by and subject to the conditions of consent: Green v Kogarah Municipal Council [2001] NSWCA 123; (2001) 115 LGERA 231 at [65]. Development the subject of a consent is defined and described by the instrument constituting the consent which ordinarily includes conditions of the consent imposed under s 80A (now s 4.17) of the EPA Act, which “may specify or regulate the manner and sequence of performance of the development”: K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [15].

39. While the relevant principles are more easily stated than applied (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [42]), I do not accept the construction of Conditions 2 and 3 of the 2006 Consent propounded by Council.

40. I have approached the interpretation of Conditions 2 and 3 by asking (as per Trump International Golf Club Scotland Ltd v The Scottish Ministers [2017] 1 All ER 307; [2015] UKSC 74 at [34]):

“…what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the Court would have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense. …”

41. In the present circumstances, although not strictly relevant to the issue under consideration, the hard rock quarry operations constituted “building, engineering or construction work” relating to the carrying out of the work in the development consent which was “physically commenced” before the date on which the consent would otherwise “lapse” under s 4.53 of the EPA Act, in accordance with s 4.53(4) (and its statutory predecessors). However, the scope and extent of this development is reduced temporally by Conditions 2 and 3, which I consider would be reasonably understood as being imposed under s 80A(1)(d) of the EPA Act at the time of the grant of the 2006 Consent (now s 4.17(1)(d)). Conditions 2 and 3 are lawful (pursuant to s 4.17(1)(d)) as they limit the time period during which development may be carried out in accordance with the consent. Therefore, I accept MAC’s submission that the development was permitted for not more than 25 years from the date of the commencement of the quarry (with the end date being 12 May 2020) and that the consent lapsed in the sense that it had expired by 12 February 2021 (nine months after the end date), pursuant to Conditions 2 and 3.

42. I find that the use of the word “lapse” in Condition 3 (considered with the wording in Condition 2), effects, or provides for, the cessation of the otherwise active consent and, in the present circumstances, renders the 2006 Consent inoperative and not susceptible thereafter to modification. It is common ground (and trite) that if a development consent has lapsed as provided for in s 4.53 of the EPA Act, it cannot be susceptible to modification under s 4.55. However, while it is clear that the use of the word “lapse” in s 4.53 triggers a period for a consent to be acted upon (either five years or two years), in circumstances where the development has been physically commenced pursuant to s 4.53(4), the consent becomes operative and effectively runs with the land. However, I repeat that Conditions 2 and 3, when read together, clearly provide for a limitation of the period during which the development the subject of the 2006 Consent may be carried out, in accordance with s 80A(1)(d) (now s 4.17(1)(d)). As such, the use of the word “lapse” in Condition 3 is not (and cannot be) interpreted to be the equivalent of “lapse” in s 4.53 (or its statutory predecessors).

43. Further, I do not consider that Kendall Street Developments assists Council’s position. The condition under challenge in Kendall Street Developments can be distinguished from Conditions 2 and 3 in the present case, as that condition only imposed a temporal limitation by providing that the development consent “shall cease” upon the occurrence of an event related to the development, but did not impose a time limitation on the development consent itself. As such, I accept MAC’s submission and find that Conditions 2 and 3 placed temporal limitations upon the operation of the consent in circumstances where Conditions 2 and 3 imposed a definite end date on the use of the site as a quarry for the purposes of the consent and required the consent to lapse (in the sense noted earlier in this judgment) following the end date, effectively rendering the consent inoperative: Yule v Smith [2012] NSWCA 191 at [60].

44. I accept MAC’s reliance on Hilltop Planners and its submission that the wording and effect of the subject condition in Hilltop Planners is analogous to this case, as that condition similarly imposed end dates on the development such that the consent would lapse upon expiry by the end date, and accordingly, there was no longer a consent upon which a s 4.55 modification application could be made.

45. MAC did not contend that the development consent was “spent”, but relied upon the actual words in the conditions. I accept that, as submitted by Council, the concept of a development consent being “spent” (or exhausted) per se, is contrary to existing authority: Boral Resources (Country) Pty Ltd v Clarence Valley Council; Cemex Australia Pty Ltd v Clarence Valley Council [2009] NSWLEC 81; (2009) 167 LGERA 134 at [105]; Agricultural Equity Investments at [111]. However, as I have found above, the limitation specifically stated in Conditions 2 and 3 was intended to provide for an end date for all activities on the site possibly with the exception of remediation. That is, the conditions confine the outer limits of the 2006 Consent because they make clear what shall happen at (or by) the end date, being that extraction will have ceased and the site restored.

46. For the above reasons, I find that Council did not have power to approve the Modification Application on the basis that the consent had “lapsed” in the sense I have found either on 12 May 2020 or 12 February 2021. Simply stated, although the consent had not “lapsed” under s 4.53(4) of the EPA Act, I find that the use of the word “lapse” in Condition 3 does not equate with, or trigger, the meaning of that word (and the consequence) in s 4.53. I consider that “lapse” is used in the sense of “to lose effect through passage of time” as provided for in the Macquarie Dictionary, online ed, accessed 24 March 2025, although remaining conscious of the caution that accompanies the use of dictionaries: South Western Sydney Local Health District v Gould (2018) 97 NSWLR 513; [2018] NSWCA 69 at [78]; House of Peace at [28].

47. I am comforted in this finding by my view that the principles relating to the construction of development consents provide for consents to be construed fairly and liberally and consents are drafted not with legal expertise, but to achieve practical results. I also consider that considerations of text, context and purpose lead to the construction I have determined.

41. My finding in relation to Ground 1 is otherwise determinative of these proceedings. Despite this, as the Court has received detailed submissions in relation to the other grounds, it is appropriate to consider and make findings in relation to each of Grounds 2, 3, 4 and 5.

Ground 2 – acoustic ground

MAC’s position

49. MAC points to the various noise impact reports (and assessments) before Council at the time of Council’s determination of the Modification Application on 10 October 2023, including, the lngen Consulting reports dated 17 February 2022, 14 December 2022 and the Further NIA dated 14 July 2023 relied upon by Santin; the Day Design report dated 19 January 2023 prepared on behalf of MAC; the Bridges Report dated 28 July 2023 commissioned by Council in response to the Further NIA; and matters considered in the Council Assessment Report dated 10 October 2023.

50. In particular, MAC points to the Bridges Report raising seven concerns of “moderate” to “high” importance in relation to the Further NIA, being, first, the Further NIA’s reliance on the NSW Environment Protection Authority (‘EPA’) Noise Guide for Local Government, (January 2023) (‘NGLG’) offensive noise checklist in circumstances where the NGLG does not apply to industrial developments and where Section 4 of the EPA, Noise Policy for Industry, (October 2017) (‘NPI’), and the NSW Government, Voluntary Land Acquisition and Mitigation Policy, (September 2018) (‘VLAMP’) provide appropriate guidance to deal with predicted exceedances of the NPI criteria; second, the noise model used in the Further NIA should have included the correct terrain type, not 6m vegetation to R2 and R3 (defined receivers) and 10m vegetation to all other receivers as this would artificially reduce calculated noise levels; third, a more representative sound power level and spectrum for the crusher/screens (components of the proposal) is required to be adopted and then the predicted noise levels should be recalculated; fourth, the Further NIA should correct the modelled sound power level of the truck haul route to reflect a truck movement in a 15-minute period, then recalculate predicted noise levels; fifth, various conflicts between the western side of the truck route and the western barrier should be resolved and the noise levels recalculated; sixth, the overburden removal scenario relied upon in the Further NIA should be checked to identify and correct under-reporting of noise levels to receivers; and, seventh, a further noise impact assessment should consider all feasible and reasonable noise mitigation measures before the acceptability of any remaining criteria exceedances can be considered by Council.

51. MAC emphasises the conclusion in the Bridges Report that Council should require a further revised noise assessment report addressing the identified deficiencies before the Modification Application can be approved.

52. MAC notes that, in these circumstances, the Council Assessment Report recommended refusal of the Modification Application “on the basis of the acoustic impacts” and concluded that the impact of the proposed modification on the built environment is “considered unacceptable in that the acoustic impact … is not compliant with the contemporary noise criteria”.

53. MAC points to Conditions 19 and 33 (at [19] above) imposed by Council in granting consent to the Modification Application, and submits that it was abundantly clear from the totality of the evidence before Council (including the Bridges Report) that there would be a noise impact on residential properties from the resumption of quarrying on the site and that some means of controlling it was required. In these circumstances, MAC contends that Council did, but was not permitted to, leave unresolved and for future determination issues (both known and unknown) in respect of the noise impact which was a critical issue for assessment pursuant to s 4.15(1) of the EPA Act.

54. MAC submits that Condition 33, in particular, deferred the assessment of noise impacts for future assessment and determination. Adopting the observations of Giles JA in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181 (‘Weal’) at [91], [95], MAC submits that Council simply was unable to exercise its function pursuant to s 4.15 of the EPA Act without considering the noise impacts of the development and the means of controlling such impacts. MAC maintains that by deferring the consideration of the noise impacts to a future date and the means of controlling them, Council did not know “what to put in the scales”. MAC cites Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (‘Mison’) at 740 as an authority and proposition that supports its position.

55. MAC submits that the present facts are similar to those considered by this Court in Cameron v Nambucca Shire Council (1997) 95 LGERA 268, where in granting a consent for a manufactured home estate, the consent authority issued a deferred commencement consent of the development until completion of a traffic impact study, and following it being satisfied that the deferred commencement consent condition had been complied with, gave notice that the consent was operative. The Court found that error had occurred and that a traffic impact study should have been submitted prior to any works commencing. The Court held that the proper course was for the consent authority to have deferred final consideration of the development application until the traffic impact study had been prepared and submitted for its consideration, such that any traffic impacts would have been considered at the time of determination of the application.

56. MAC submits that the noise impacts in the present case were similarly left for consideration in a future noise impact assessment, which was only permitted to be submitted in the future rather than at the time of determination of the Modification Application. Accordingly, MAC submits that Council fell into error by deferring determination of the Modification Application until the future noise impact assessment had been prepared and submitted for Council’s consideration.

Council’s position

57. Council submits that a ground impugning a decision-maker’s decision for failure to consider a matter only arises when the decision-maker is bound to consider such a matter: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40 (‘Peko-Wallsend’). Council submits that the relevant considerations that a decision-maker must take into account are those either expressed in a statute or those determined by implication from the subject matter, scope and purpose of the statute. In the present circumstances, Council contends that MAC has not established that acoustic impact is a relevant consideration because MAC has failed to provide the statutory context as to why it is a mandatory matter for consideration under s 4.15(1) of the EPA Act.

58. In any event, Council submits that MAC’s contention appears to be based upon the sufficiency of the noise impact assessment reports in circumstances where the weight to be attributed to a matter being considered by a decision-maker is for the decision-maker, and even if there was an erroneous finding of fact, that would not amount to an error of law.

59. Council cautions the Court against adopting language which invites a slide into merits review and submits that although there are circumstances where a particular matter, given the statutory context, may have greater importance than other factors, there is significant danger in imposing an obligation in every case to require specified considerations to be given weight as fundamental elements in the determination, or require that adjudicators turn their minds to, grapple with, and form a view on all matters that they are required to consider, or to “consider every piece of evidence presented”: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [22].

60. As such, Council submits that the concern in relation to the adequacy of the noise assessment consideration is indicative of merits review especially in circumstances where the fundamental principle, as stated by the High Court in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; [2010] HCA 48 (‘SZJSS’) at [33]-[36], is that misattribution of weight given to a matter being considered does not manifest legal error and a court should not scrutinise the merits of administrative decisions on the grounds that there may have been a failure to give proper, genuine and realistic consideration to the material or evidence before it, such a task being quintessentially a matter for the administrative decision-maker: SZJSS at [30], [33]-[34].

61. Council further submits that reliance by MAC on Weal and Mison in relation to deferring matters for later consideration requires close scrutiny. In Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277, Basten JA (at [24]) noted that a development consent would not be lawful in two overlapping circumstances: first, where there is a condition that has the effect of “significantly altering the development in respect of which the application is made”; and second, where a council has purportedly granted consent but in terms which lack finality or certainty such that there is, in substance, no effective consent to the application. Basten JA held (at [28]) that in these circumstances, first, a consent will only fail from uncertainty where it leaves open the possibility of a significantly different development; and second, a condition may be of great precision and certainty but may fail because it results in a significantly different development. Council submits that neither of those circumstances arises in the present case, where the question is whether Condition 33 falls within the condition making power authorised by the EPA Act and that must be answered in the affirmative.

62. Council submits that the present circumstances are similar to Simpson v Wakool Shire Council [2012] NSWLEC 163; (2012) 190 LGERA 143 (‘Simpson’). Preston CJ of LEC in Simpson (at [38]-[79]) found that there is no failure to consider where matters are directly addressed in a council officer’s assessment report in circumstances where it is well-established that such a report provides evidence of the taking into account of mandatory relevant considerations. In the present circumstances, Council submits that noise impact was the subject of direct consideration and that Condition 33 (which is criticised by MAC) is similar to the subject condition in Simpson, where Preston CJ of LEC concluded (at [77]) that retention of “practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme under the EPA Act”.

63. Council submits that MAC has not established that Council has failed to take into consideration the relevant matter of acoustic impact when it determined the Modification Application.

Consideration

64. The duty imposed by s 4.15(1) (and reflected relevantly in s 4.55(3)) of the EPA Act is, in terms, a duty to take the identified matters “into consideration” as they are “of relevance to the development” the subject of the application to modify the consent. Whether a consideration is mandatory is a matter of statutory construction. A consideration may be a mandatory consideration by way of implication, taking into account the subject matter, scope and purpose of the relevant statute: Peko-Wallsend at 39-40. MAC submits, and I accept, that acoustic impact is a relevant consideration applying the ordinary principles of statutory interpretation.

65. As the relevant duty is a duty to “consider”, a challenge based on an alleged failure to consider “should not be turned into an assessment of the adequacy of the consideration accorded [by the decision-maker] in a particular case” and must not be framed in a way which “encourage[s] a slide into impermissible merit review”: Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [35]. Moreover, a duty to consider a matter does not carry with it a duty to “refer to every piece of evidence and every contention made” in respect of that matter: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 at [46].

66. The concept of consideration is not obscure and the duty to “consider” has given rise to an extensive history of judicial exegesis: Ceerose Pty Ltd v A-Civil Aust Pty Ltd (2023) 112 NSWLR 225; [2023] NSWCA 215 (‘Ceerose’) at [54]. It is trite to note that caution has been suggested by the High Court in relation to the use of labels such as “active intellectual process” and “proper, genuine and realistic consideration”, as there is a risk that the use of these labels can readily shade into claims about arguments having been resolved incorrectly because such claims were not grappled with, which on any view tends towards merits review: Ceerose at [56]-[57].

67. I do not accept MAC’s submission that the mere fact that Council had various expert reports in relation to the noise impacts of the proposal (including the Council Assessment Report which concluded that “the proposal is considered to have an unacceptable impact on the built environment and social impact due to the unresolved acoustic issues”) and thereafter gave consent imposing conditions which sought to address the acoustic impacts, was indicative of justiciable error.

68. MAC’s submission is that although it was “obvious” from the totality of the evidence before Council that there would be noise impacts on residential properties and that some means of control was required (referring to Weal at [91]), Council did not properly consider these issues. MAC’s consequential submission is that Council (by the imposition of Condition 33) deferred consideration of the noise impacts to a future date for determination such that Council was not able to exercise its function pursuant to s 4.15 of the EPA Act, having not considered the noise impacts and the means of controlling them.

69. I do not consider that this is a case where a decision-maker has merely adverted to or paid lip service to the relevant matter. Concerns in relation to noise impact assessment had been clearly identified in various reports before Council (and in a number of objections received) and it is clear that an attempt was made to have these concerns addressed by conditions of consent. In particular, Condition 33 (at [19] above) provided for specific compliance limits in relation to five identified local receivers as well as requiring “at a minimum” that the operational noise generated at the site would not exceed specified noise limits. Condition 33 also provided an alternative response to the noise concerns, evidenced by private agreement with any impacted property owner, who can be removed as a sensitive receptor from the noise impacts of the quarrying activity.

70. The above matters are not indicative and certainly not decisive of a failure to consider noise impacts. Moreover, Condition 33 fixed and implemented a performance outcome and provided for “full compliance with the NSW Noise Policy for Industry”. As such, as adverted to in Simpson at [77], I consider that in adopting Condition 33 there has been a retention of practical flexibility and leaving matters of detail for later consideration in relation to this aspect of the development. As noted above, Condition 33 also left open a choice by which the outcome or objective of addressing noise impacts could be met.

71. Further, while MAC does not contend that Condition 33 is discretely uncertain, and questions of degree are always involved in determining whether a condition is sufficiently uncertain as to be made without power, I consider that leaving some matters of detail for later determination, and delegation of supervision of some stage or aspect of a development are, in the present circumstances, appropriate: Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185; (2008) 160 LGERA 20 at [78].

72. I am also conscious that the Council Assessment Report (although recommending refusal “on the basis of the acoustic impacts”) addressed the noise concerns and considered what might result if Council was minded to issue a consent and included the following:

“It is recognised both by the assessing officer and the acoustic peer review that a quarry operation will create loud noise in periods associated with the extraction of the material. There is scope to allow a relaxation of the noise criteria where noise impacts are intermittent and short term in duration. However, there remain concerns with the assessment generally that leaves sufficient doubt the acoustic impacts of the proposed modification are accurately assessed and acceptable, inclusive of a potential relaxation of the noise criteria, to understand what level will be reached, where, when and to whom. The unresolved aspects from the second peer review may, once resolved, introduce new properties affected by exceedances in the noise criteria or detail an exacerbated impact on the currently identified affected properties to a point where the current assessment is not acceptable.

The most important point taken from the planner’s assessment, the Environmental Health Officer’s assessment and echoed in the acoustic peer review is the NIA has not adequately demonstrated it has considered all feasible and reasonable noise mitigation measures. The first request for additional information sought more information but as of the second peer review, this information remains inadequately addressed. The outstanding information affects whether the quarry can operate on the southern face only or on both the southern and eastern faces.

Consequently, the NIA has not provided sufficient information to determine the proposed mitigation measures (signed agreements and the offensive noise checklist) are necessary and/or other mitigation measures are viable or unviable to address acoustic privacy. Given this, the proposed Section 4.55(2) application is recommended for refusal on the basis of the acoustic impacts.

For completion of the considerations, were any consent to be issued relying on the signed agreement method for acceptance breaches to the PNTL, these would need to be conditioned to be placed on title for the duration of the development consent for the affected lots prior to the resumption of the quarry to ensure the longevity of the agreement through land ownership changes and occupant circumstances.”

73. I remain conscious that a consent authority (here, Council) cannot rationally approve a development that is likely to have identified environmental impacts on the basis of a theoretical possibility that the impacts will be offset by some uncertain action in the future. However, Council has imposed conditions in relation to the noise impacts which address, in Council’s view, the said impacts.

74. In summary, I do not accept MAC’s submission that the material before Council did not enable it to discharge its duty to take into account the noise impacts in determining the Modification Application. Material before Council relating to noise impacts was identified in the various reports and in particular, the Council Assessment Report, and was sought to be addressed by Condition 33 which implemented a performance outcome. The fact that Council officers may need to assess the adequacy of the submitted information and supervise compliance does not mean that Council has deferred consideration of the noise impacts or has not finally determined the Modification Application.

75. For the reasons above, I accept Council’s submission that Council took into account the potential noise impacts at the appropriate level of generality in view of the material before it. It follows that I do not find that the relevant conditions of consent left an inappropriate or unlawful opening for later consideration of an important aspect of the development the subject of the Modification Application. Ground 2 has not been made out.

Ground 3 – substantially the same development ground

MAC’s position

76. In Ground 3, which is related to Ground 4, MAC submits that s 4.55(2)(a) of the EPA Act fixes a precondition to the exercise of the power to modify the consent such that Council (as the consent authority) needs to form an opinion of satisfaction that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted. MAC submits that in the present case, it is the collegiate body of councillors that was required to form the necessary opinion of satisfaction.

77. MAC points to the material produced by Council in response to MAC’s request made pursuant to r 59.9 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’) for a copy of Council’s statement of reasons for the decision to grant consent to the Modification Application, pursuant to which Council provided four signed “Statements of Reasons for Decision” from four (of the five) councillors who had voted in favour of the approval of the Modification Application (‘r 59 Statements’). MAC notes that not one of those statements identified that the essential precondition in s 4.55(2)(a) of the EPA Act had been considered by the councillors.

78. MAC submits that had the councillors properly considered the s 4.55(2)(a) precondition, it would have been recorded in the r 59 Statements, which (pursuant to r 59.9(3) of the UCPR) must set out “findings on material questions of fact” and explain “why the decision was made”. As such, in the absence of reference to such matters in any of the r 59 Statements, MAC submits that the inference arises that Council (through its councillors) failed to reach the necessary state of satisfaction because the councillors did not turn their minds to the question.

79. MAC refers to various authorities that consider the importance of the provision of reasons by a collegiate public body in response to a request for a statement of reasons for a decision, including: Minister for Immigration and Ethnic Affairs v Taveli (1990) 23 FCR 162 at 178; [1990] FCA 229; Commonwealth of Australia v Pharmacy Guild of Australia (1989) 91 ALR 65 at 88; IOF Custodian Pty Limited atf the 105 Miller Street North Sydney Trust v Special Minister of State [2022] NSWLEC 86 at [68]-[71].

80. MAC submits that although there was no obligation under the EPA Act for Council to provide reasons, in the present case, this is all the more reason why the r 59 Statements should be seen to reflect the true reasons behind Council's determination. This is particularly so where the question of whether the Modification Application involved substantially the same development as that for which the consent was originally granted (pursuant to s 4.55(2)(a)) was of central importance to the determination.

81. MAC accepts that the Council Assessment Report considered the s 4.55(2)(a) question, however, submits that “awareness” of an issue alone on the part of the councillors is insufficient to amount to satisfaction: Inglis v Buckley [2023] NSWLEC 77 at [54]. MAC distinguishes the present facts from FeldkirchenPty Ltd v Development Implementation Pty Ltd [2022] NSWCA 227; (2022) 254 LGERA 114 (‘Feldkirchen’), which held the fact that the relevant question was addressed in the council officer’s assessment report can lead to an inference that the councillors reached the necessary state of satisfaction, because in Feldkirchen there was no statement of reasons advanced which was silent on the issue. Moreover, MAC repeats that it is not the assessing officer who had to reach the necessary state of satisfaction, but the councillors themselves had to turn their minds and form the necessary satisfaction.

82. MAC submits that a statutory requirement of satisfaction that the two developments are substantially the same is a “markedly” more onerous obligation imposed on a decision-maker than an obligation to take into account mandatory relevant matters.

83. In these circumstances, MAC submits that the Court should conclude, based upon the r 59 Statements which are a true record of how the councillors reached their decision (and not the Council Assessment Report), that the councillors (and therefore, Council) failed to address the precondition in s 4.55(2)(a) of the EPA Act, and that consequently, the decision to grant the Modification Application lacked power.

Council’s position

84. Council responds to Grounds 3 and 4 together. Council submits that the procedural provisions in r 59.9 of the UCPR do not require a list of every single jurisdictional prerequisite, but rather, are directed to the merit matters provided for in the r 59 Statements as is evident from r 59.9(3), which provides:

(3)   A statement of reasons for the decision must–

(a)   set out findings on material questions of fact, and

(b)   refer to the evidence or other material on which those findings were based, and

(c)   explain why the decision was made.

(Emphasis added by Council.)

85. Council submits that, in any event, a failure to specifically refer to a matter only allows an inference to be drawn that a matter was not considered. In the present case, that inference is not available because the Council Assessment Report specifically dealt with the subject matter of s 4.55(2)(a) of the EPA Act.

86. Council submits that it is well-accepted that reference to a matter in a council officer’s report provides evidence of consideration of the matter: Coffs Harbour City Council v Arrawarra Beach Pty Ltd [2006] NSWLEC 365; (2006) 148 LGERA 11 at [42]. As such, Council submits that the “collegiate mind” of the councillors is able to be sufficiently informed as to the decisions that were made by reference to the Council Assessment Report.

87. Council submits that each of the r 59 Statements identified consideration of the relevant “substantially the same” test in s 4.55(2)(a) of the EPA Act and that this is evident from the fact that each of the councillors directly adopted a number of references to the “substantially the same” test in the Council Assessment Report, including the identification of s 4.55(2)(a) as the relevant statutory provision.

88. Council further submits that the councillors also turned their minds to three relevant “aspects” in reaching the conclusion on the developments being substantially the same through their adoption of those aspects of the Council Assessment Report, being, first, the truck haulage routes; second, the temporal limitation on the consent; and third, the Council Assessment Report’s identification of the cumulative nature of the modifications. Council maintains that this shows that the councillors (as a collegiate body) have turned their mind to the proper comparison in determining whether the developments are substantially the same.

89. Moreover, Council submits that to the extent that MAC (in Ground 4) attacks the reasonableness of any satisfaction reached by Council when engaging with the precondition for the exercise of the power under s 4.55(2) of the EPA Act, ascribing inadequacy of weight or insufficiency of consideration does not disclose any error of law and the threshold for finding such an error of law is illogicality or irrationality: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 (‘SZMDS’) at [96], [131]. Council contends that MAC’s submissions on Ground 4 (recorded later in this judgment), taken as a discrete challenge independent of Ground 3, are limited to the factual concerns in relation to, first, the temporal nature of the consent changing; second, the delay in site restoration; and third, the change in the location of the truck haulage routes, and that this (factual) limitation precludes MAC from making out the unreasonableness ground (which usually arises from some other error of law): Marrickville Metro Shopping Centre Pty Ltd v Marrickville Council [2010] NSWCA 145; (2010) 174 LGERA 67 (‘Marrickville Metro’) at [208].

90. Council further submits (in relation to Ground 4), adopting the words of Basten JA in Marrickville Metro at [208], that “[w]here it can be seen that the power has been exercised for a proper purpose, and no mandatory considerations have been ignored, nor impermissible considerations taken into account, the challenge of irrationality will be hard to make good”.

91. In further response to Ground 4, Council submits that the test for amounting to manifest unreasonableness is stringent (Weal at [27]), particularly in circumstances where Council has considered the relevant test because it was expressly dealt with in the Council Assessment Report.

Consideration

92. There is no evidence recording in explicit terms that Council was satisfied that the development to which the consent as modified by the approval relates was substantially the same development as the development for which the consent was originally granted. As such, the question becomes one of inference based on the available evidence, being whether it can be inferred that Council did not form the necessary opinion of satisfaction.

93. MAC, as the challenger of Council’s decision, bears the onus of establishing that Council did not form the necessary opinion of satisfaction. For reasons that follow, and generally accepting Council’s submissions noted above, MAC has not convinced me that the inference should be drawn that Council did not form the necessary opinion of satisfaction when deciding to approve the Modification Application.

94. The parties differed as to the approach to be taken to the Council Assessment Report, and consequently, the matters in the r 59 Statements. Before I consider each of these matters, I will make a number of preliminary observations.

95. The power to modify development consents (and the precondition therein) has been a constant feature of the statutory regime for development in the EPA Act since 1979 and is commonly invoked by consent authorities who would have needed to form the necessary opinion of satisfaction every time they exercised the power under s 4.55(2) (or its predecessors) to modify a development consent. The relevant precondition to the exercise of the power in s 4.55(2) is that consent authorities must be satisfied that the development to which the consent as modified relates is substantially the same development as the development originally approved (this is now provided for in s 4.55(2)(a) of the EPA Act). Although the scope of the power has changed over time and it has been phrased in different terms, I consider the requirements of s 4.55 of the EPA Act to be well-known to consent authorities.

96. I also consider that the inferences that are able to be made in relation to s 4.55 of the EPA Act can be distinguished from the approach to an inference that can be made about less familiar provisions of the EPA Act and environmental planning instruments: South East Forest Rescue Incorporated v Bega Valley Shire Council [2011] NSWLEC 250; (2011) 211 LGERA 1 (‘South East’) at [107]-[109], [124]-[125].

97. As such, the present circumstances are different from a number of cases where the Court was invited to draw an inference that the consent authority had knowledge of a less commonly used or a new provision in the statutory regime or in other environmental planning instruments. In Franklins Limited v Penrith City Council and Campbells Cash & Carry Pty Limited [1999] NSWCA 134 (‘Franklins’) at [26], the Court of Appeal noted that while it may be reasonable to make a presumption that councillors have a general knowledge of their principal planning instrument, there was no reason to infer knowledge of a specific new provision. In contrast to the facts in Franklins (and presently leaving aside the extensive consideration of the relevant question in the Council Assessment Report), I consider it would be reasonable to presume that Council (and the councillors) had general knowledge of s 4.55(2)(a) of the EPA Act which I find is consistent with the comments of Preston CJ of LEC in South East at [125], where the Court was dealing with a provision that had to be considered and applied by the council before granting consent to the development that was regulated by the applicable local environmental plan such that the relevant councillors would have had knowledge of the existence and content of the provision.

98. The present facts are also different to those considered by the Court of Appeal in Feldkirchen where, although explicit reference was not made to the terms of the precondition in s 4.55(2)(a) of the EPA Act in either the internal modification assessment report considered by the council or the debate at the council meeting, there were other indications that the council addressed the precondition in s 4.55(2)(a).

99. It is well-known that the consideration required by s 4.55(2)(a) is between the two developments as noted at [95] above. While there are different ways in which the two developments may be compared, it is usually the case that “material and essential features” of the two developments are considered by way of comparison: Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [55], [56], [58]; Arrage v Inner West Council [2019] NSWLEC 85 (‘Arrage’) at [26]; Feldkirchen at [112]-[113].

100. Apart from the other matters to which I will give consideration, I am prepared to accept that councillors were aware of the requirement in s 4.55(2)(a) of the EPA Act. I consider that there are also various indicators that Council did address the question posed by the precondition in s 4.55(2)(a).

101. The “Councillor Briefing PowerPoint” contained consideration of s 4.55(2) which was expanded in more detail in the Council Assessment Report, which recorded in the “Executive Summary” that the Modification Application followed “several previous attempts to extend the life of the quarry with varying additional modifications to conditions of consent”. It also noted that:

“Given the lengthy history of [Council’s consideration of the quarry], Council has engaged an independent town planner, GAT & Associates, to undertake the assessment of this Section 4.55(2) application. The assessment of this application has determined that the development is “substantially the same” as required by Section 4.55(2) of the [EPA Act].”

102. The Council Assessment Report detailed various previous modification applications lodged (pursuant to s 4.55(2) of the EPA Act and its earlier equivalent provisions) in relation to the quarry in October 2015, October 2019, and further, in July 2020, which Council had refused for various reasons including, relevantly, that the applications would not result in a development that was substantially the same as the development the subject of the Original Consent.

103. Having stated the statutory test (with extracts and analysis from various decided cases), the Council Assessment Report then analysed specific aspects (referred to as “fundamental attributes”) of the existing quarry operations and compared those aspects with the proposed modification all under the heading “Is the Development ‘Substantially the Same’?”

104. The Council Assessment Report identified the “fundamental attributes” under various sub-headings, including: “The Method of Extraction”; “The Environmental Impact of the Operation”; “The Time-Limited Consent”; “Other Aspects – Haulage Routes”; “Other Aspects – Truck Sizes”; “Other Aspects – Truck Movements”; “Extraction Rate”; and “Cumulative Modifications”. The report concluded that, given the comparisons set out, “it is considered that the proposed modifications can be deemed substantially the same insofar as what is proposed”. I consider that the manner in which the Council Assessment Report (which repeated that the application was made under s 4.55(2)) addressed the material and provided a conclusion based upon various comparisons is entirely conventional: Arrage at [24]-[29].

105. In making my findings above, I have also considered the r 59 Statements more closely in circumstances where Council, as the collegiate body, had the Council Assessment Report and where the r 59 Statements did not discretely identify the precondition in s 4.55(2)(a).

106. I consider that, as a general proposition, where reasons pursuant to r 59.9(3) of the UCPR (or otherwise) are given, it is appropriate that they be regarded as what they purport to be, that is, a statement of reasons for the decision. I also accept that a failure to include any reference to a matter in a statement of reasons may justify the inference that, as a matter of fact, the matter was not taken into account. Rule 59.9(3) of the UCPR, as submitted by MAC, requires that the decision-maker set out their “findings on material questions of fact”, refer to “other material” on which those findings were based, and “explain why the decision was made”. However, I consider that omission of a matter in a statement of reasons is not necessarily conclusive such that the omission (or omissions) does not itself suggest that a decision-maker failed to consider the matter. The statutory question must be determined in the light of the whole of the circumstances: Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 485; Bat Advocacy NSW Inc v Minister for Environment Protection, Heritage and the Arts [2011] FCAFC 59; (2011) 180 LGERA 99 at [47].

107. I consider that the circumstances relevant to the consideration of the essential question in s 4.55(2)(a) of the EPA Act despite its omission in the r 59 Statements have been canvassed by my findings in relation to Council (and its officers and councillors) being familiar with the commonplace obligations for the satisfaction required by s 4.55(2)(a), the “Councillor Briefing PowerPoint” and the councillors being aware of and having considered the Council Assessment Report (which deals with the essential question at some length), and the fact that there had been a number of relatively recent applications for modifications of the subject consent. In these circumstances, I am not satisfied that it is appropriate to draw the inference that the essential matter raised by MAC was not taken into account by reason of the r 59 Statements.

108. For the above reasons, I do not find that the evidence before the Court supports MAC’s position that it should be inferred that Council did not form the necessary opinion of satisfaction when approving the Modification Application. MAC has not established on the balance of probabilities that the negative inference regarding the necessary opinion of satisfaction should be drawn such that Council erred in granting approval to the Modification Application. Ground 3 has not been made out.

Ground 4 – satisfaction not reasonably open ground

MAC’s position

109. MAC submits that if the Court finds that Council did form an opinion of satisfaction, contrary to MAC’s position in relation to Ground 3, any such satisfaction would be unreasonably formed because of the significant differences between the development as modified and the development for which consent was originally granted.

110. MAC submits that the test in s 4.55(2)(a) requires a simple comparison of the two developments, being the development as modified and the development as originally approved (here, on 12 May 1993) (Feldkirchen at [112]), and that the opinion of satisfaction requires that the two developments being compared are substantially the same: Arrage at [19], [31].

111. MAC submits that it is the features or components of the originally approved and the modified developments that are to be compared in order to assess whether the development as modified is substantially the same as that originally approved: Arrage at [25]. As such, MAC identifies eight matters (or components) of the development the subject of the Modification Application and compares those between the originally approved development and the modified development, and submits that there are “significant differences” between the two developments such that Council could not have reasonably formed the opinion of satisfaction.

109. Those components are, first, the development being limited by time; second, matters in relation to site restoration; third, matters in relation to the hours of operation of the quarry; fourth, matters in relation to the location of the haulage route; fifth, matters in relation to the extent of quarrying; sixth, matters in relation to the machinery used; seventh, matters in relation to road works; and eighth, matters in relation to the number of truck movements.

110. In relation to these components, MAC highlights the following changes, first, the extensive extension of time; second, the delay in any site restoration; third, the extra day of quarry operation (being Saturday); fourth, the change of the haulage route from Gundurimba Road to Wyrallah Road; fifth, the change in the extent of quarrying (now being limited to the southern face); and sixth, the changes in machinery from a fixed crusher and screening plant to a mobile crusher, as well as changes to the road works and to the number of truck movements.

111. MAC submits that the most important differences are, first, the increase in the life of the quarry (with a consequential delay in site restoration); second, the change in the location of the haulage route; and third, the increase in the quarry’s hours of operation, which (whether considered individually or cumulatively) demonstrate that Council’s determination that the developments were substantially the same was legally unreasonable.

112. MAC submits that the unreasonableness in the present decision is exposed by demonstrating that the state of satisfaction was not reasonably formed and repeats the matters recorded at [114] above with the effect that not only is the life of the quarry extended (by approximately 48%) with obvious effect upon the impacts (including noise impacts which is a critical issue in this case) which will continue up until 2032, but the further consequence is that site restoration of the quarry is delayed by 14.5 years by the approval of the Modification Application.

113. MAC also submits that a quarry operating up until May 2018 cannot reasonably fit the description of being substantially the same as a quarry operating up until 12 May 2032, particularly in circumstances where the Council Assessment Report has recommended refusal of the Modification Application on the grounds of acoustic impacts (noting the potential for new properties to be affected by exceedances in the noise criteria and/or exacerbated impact on the currently affected properties). MAC maintains that a development consisting of a quarry which is to be restored to its original rural state in 2033 is not reasonably the same as a development consisting of a quarry to be restored to its original rural state in 2018.

114. MAC further points to the evidence of James Berkaya in his affidavit affirmed 28 June 2024 which informs the Court as to what would have been known to the councillors (namely that the proposed haulage route of Wyrallah Road is “flanked” by several residential properties, Wilson Park School and Wyrallah Road Public School, none of which would have been affected by the earlier haulage route along Gundurimba Road). In these circumstances, MAC submits that a quarry that changes its haulage route (and thereby introduces new sensitive receptors to noise impacts from trucks operating) cannot reasonably fit the description of being substantially the same as the previous quarry development, which combined with the extended hours of operation of the quarry (which has different impacts including in respect of noise) and the matters noted above, led to the councillors’ opinion of satisfaction that the two developments were substantially the same which MAC maintains was not reasonably open to Council.

115. As such, MAC submits that the present case is one where the comparison between the two developments shows differences that are so “stark” that no reasonable consent authority could rationally have concluded that the two developments are substantially the same.

Council’s position

119. Repeating a number of its submissions in its response to Ground 3 noted at [84]-[91] above, Council maintains that ascribing inadequacy of weight or insufficiency of consideration simply does not disclose an error of law which requires a threshold of illogicality or irrationality: SZMDS at [96], [131]. Council repeats that the test for manifest unreasonableness is “stringent” (Weal at [27]) and that the decision must amount to an abuse of power (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36; [1990] HCA 21) or be so devoid of plausible justification that no reasonable person could have taken that course: Minister for Immigration and Ethnics Affairs v Teoh (1995) 183 CLR 273 at 290; [1995] HCA 20.

120. Council submits that the substance of MAC’s attack relates to such matters as the delay in site restoration, that there may be new residences affected by the altered haulage route, and the extended hours of operation which may result in “different” impacts, all justifying a finding that Council’s decision was unreasonable in concluding that the proposed development was substantially the same. Council submits that none of those “errors” provides a basis for MAC’s position, because the test is whether any other decision-maker would reach the same decision acting rationally, and MAC has not sufficiently demonstrated that there was irrationality in the councillors’ adoption and determination of the conclusions on those matters raised by MAC such that they could be reached by no other decision-maker.

121. Council maintains that there was a proper basis to draw the relevant conclusions, as set out in the Council Assessment Report. As such, Council submits that any form of disagreement in relation to any of the three factual bases raised by MAC (at [114] above) does not rise high enough to establish that no other decision-maker acting reasonably could have reached the same decision.

Consideration

122. The role of the Court in judicial review is “to assess the quality of the administrative decision by reference to the statutory source of the power exercised in making the decision” (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 (‘SZVFW’) at [79]) and the factual information before the decision-maker: Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1; [2016] FCAFC 11 (‘Stretton’) at [7].

123. The power given by s 4.55 of the EPA Act is subject to the requirement of legal reasonableness and the statutory text, context and purpose of s 4.55 informs the reasonableness inquiry: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (‘Li’) at [23], [24], [63], [90]; Minister for Immigration and Border Protection v SZMTA; CQZ15 v Minister for Immigration and Border Protection; BEG15 v Minister for Immigration and Border Protection (2019) 264 CLR 421; [2019] HCA 3 at [11]. The question for the Court is not whether it thinks the decision is reasonable or appropriate but to “evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful”: Stretton at [12].

124. The standard of reasonableness is not confined to why a statutory decision is made but extends to how a decision is made, which can be assessed through examining the reasoning process by which the decision-maker arrived at the exercise of power: ABT17 v Minister for Immigration and Border Protection (2020) 269 CLR 439; [2020] HCA 34 (‘ABT17’) at [19], citing Li at [91].

125. The test for legal unreasonableness is to ask whether the decision “lacks an evident and intelligible justification”: Li at [76]; SZVFW at [10]. There is no need to show that the exercise of power is “irrational, if not bizarre”: SZVFW at [82].

126. Simply stated, the decision cannot be “so devoid of plausible justification that no reasonable person could have taken that course” (Li at [91]), and the decision should not lack rational foundation, be “plainly unjust, arbitrary, capricious, or [lack] common sense having regard to the terms, scope and purpose of the statutory source of the power” such that it “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Stretton at [11]; SZVFW at [82].

127. I remain conscious that legal unreasonableness also requires the Court to acknowledge that there is “an area of decisional freedom” vested in the decision-maker within which reasonable minds may differ in exercising statutory discretionary power: Li at [28]. In the present case, the decisional freedom afforded to Council (including its officers and councillors) under s 4.55(2)(a) of the EPA Act is discretionary in nature.

128. I do not accept that MAC has satisfied its onus that Council’s conduct was unreasonable based upon Council’s consideration involving the matters noted at [111]-[115] above, primarily being the delay in site restoration, the prospect of new residences being affected by noise as the result of an alteration to the truck route, and the extended hours of actual operation and the extension of the life of the quarry. However, I accept Council’s submissions and find that these matters either individually and/or cumulatively do not demonstrate that it would be unreasonable for Council to conclude that the proposal was substantially the same.

129. In particular, the matters raised in the Council Assessment Report, including the table comparing the various relevant conditions and, as noted above, the summary of the approach adopted in a number of decided cases, and thereafter the consideration of discrete aspects (or components) including the method of extraction, the environmental impacts of the proposed operation (including the acoustic impact), the fact that there were changes in the extension of time (noted by Council as a 48% increase in the life of the quarry) and the actual hours of operation, along with the changes in relation to the haulage routes (which were “not assessed to be substantially different from the approved development…”), and other matters such as the size of the trucks used for the haulage of material and the actual truck movements over a period of time, were all compared and taken into account in the Council Assessment Report in relation to the “substantially the same” question (albeit concluding that the Modification Application should be refused primarily because the modification was not compatible with other land uses as it was likely to have a “significant acoustic impact”). These lead to my view that Council had adequate material before it to consider the essential question. As such, I find (albeit with some caution) that there is an “intelligible justification” for the decision and that Council’s state of satisfaction was reached “through an intelligible decision-making process”: ABT17 at [20].

130. In these circumstances, I do not consider that Council’s satisfaction was sufficiently lacking in rational foundation or in any intelligible justification, nor was it plainly unjust, arbitrary or capricious or lacking commonsense having regard to the terms, scope and purpose of the statutory source of power such that it cannot be said to be within the range of possible lawful outcomes as an exercise of that power. I find that the satisfaction reached by Council was reasonably formed. Ground 4 has not been made out.

Ground 5 – Condition 11 variation ground

MAC’s position

131. MAC contends that the latter part of Condition 11 is unlawful. Condition 11 (with the impugned part italicised) provides:

“11   The hours of operation shall be limited to 7:30am to 4:30pm, Monday to Saturday except for drilling, crushing and blasting activities which shall be restricted to the hours 8:00am to 4:30pm Monday to Friday.

No work is to be carried out Sunday or on public holidays. For the purposes of this condition “work” includes all activities on the premises associated with the project, during construction and operation with the exception of plant maintenance, landscaping and office works.

The following activities may take place outside the above hours:

(a)   the delivery of materials required by the police or other authorities for safety reasons; and

(b)   activities required in an emergency to avoid the loss of life, property and/or to prevent environmental harm.

The hours of operation may be varied with the prior written approval of Council.
Any request to vary the hours of operation must include:

(a)   details of the nature and justification for activities to be conducted during the varied construction hours

(b)   evidence that appropriate consultation has been undertaken with potentially affected sensitive receivers and

(c)   a noise impact assessment using the guidelines in the Noise Policy for Industry (EPA 2017), and other relevant EPA noise guidelines in force at the time of assessment.

Reason: To preserve the environment and the existing or likely future amenity of the locality.”

132. MAC submits that the italicised part of Condition 11 (providing that the hours of operation may be varied with the prior written approval by Council) is unlawful because it was not authorised by s 4.17(1) of the EPA Act and it purports to authorise future modification of the consent other than in accordance with s 4.55 of the EPA Act, which MAC contends is the source of power to apply for, and determine, an application to modify a development consent (including the conditions of that consent).

133. MAC contends that a condition imposed by reason of s 4.17 of the EPA Act can only be lawfully varied by a consent authority (here, Council) after Council’s receipt and assessment of an application to modify the consent made under s 4.55 of the EPA Act. MAC submits that the italicised part of Condition 11 (noted above) has the effect that Condition 11 could be varied without going through a modification application made pursuant to s 4.55, and as such, Council’s decision to grant the consent subject to that part of Condition 11 is inconsistent with the requirements of s 4.55 which would render void the decision to impose that part of Condition 11.

134. MAC further submits that Condition 11 is not severable because it is a condition which relates to the hours of operation of the quarry, being a matter that is fundamental to the acceptability of the development itself: Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 (‘Anambah Homes’) at [162]. Nonetheless, MAC accepts that the italicised part of Condition 11 could be severed because that would not result in invalidity of the whole of the consent.

Council’s position

135. Council contends that Ground 5 raises two questions, first, whether there is power to impose Condition 11 in its present form; and second, whether, if voidable, the condition is not severable and causes the entire consent to be declared void. In its oral submissions, Council directed the Court to MAC’s acceptance that the italicised part of Condition 11 is severable and would not invalidate the entire consent.

136. Council submits that Condition 11 is similar to conditions imposing trial periods and other limitation periods which are frequently imposed by consent authorities, which allow matters to be varied with sufficient cause, and points to the commentary in Simpson at [77], where Preston CJ of LEC expressed the view that retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some aspect of the development, may all be desirable and be in accordance with the statutory scheme. As such, Council contends that Condition 11 fits within this description and is a lawful condition which Council was entitled to impose.

137. Council submits that, even if the Court was minded to find that the italicised part of Condition 11 was unlawful, there is no reason why it could not be simply severed as that would not result in the residue operating differently to the manner in which the whole consent would have operated: Anambah Homes at [166]-[167].

Consideration

138. I accept the position of Council that the two questions under this ground are, first, whether there is power to impose Condition 11; and second, if it is voidable, is it otherwise severable.

139. As to the first question, I do not consider that Condition 11 is similar to trial periods and other limitations imposed as submitted by Council. Further, I do not consider that the italicised part of Condition 11 is the type of condition which provides practical flexibility in leaving matters of detail for later determination as observed by Preston CJ of LEC in Simpson at [77]. I find that the italicised words go to a fundamental aspect of the proposed development, do not properly provide for flexibility, and are otherwise invalid for the reasons stated by MAC.

140. In those circumstances and finding that the remaining (unitalicised) words of Condition 11 are appropriate, and noting that my findings relating to Ground 1 are likely determinative of the whole of these proceedings, for clarity, I find (and would grant relief to the effect) that the italicised words are unlawful and that the severance of those words is otherwise appropriate and would not result in the residue “operating differently to the manner” (as per Anambah Homes at [166]-[167]) in which the quarry is otherwise to have operated. As such, subject to this finding, I consider that Condition 11 (with the italicised words extracted) would not cause the consent to be void. For the foregoing reasons, Ground 5 is partially made out.

Conclusion

141. For the above reasons, MAC has been successful in relation to Ground 1 and is entitled to the declaratory relief sought.

Costs

142. The usual rule in Class 4 judicial review proceedings is that costs follow the event unless it appears that some other order should be made: r 42.1 of the UCPR. On the evidence currently before the Court, I am of the view that the usual rule should be followed such that the respondents pay MAC’s costs. However, I am prepared to give the parties the opportunity to consider this further, and unless an application for a specific order as to costs is made by any of the parties on or before 1 May 2025, I shall make an order that the respondents pay MAC’s costs, as agreed or assessed. If an application for a specific order as to costs is made and not agreed between the parties, I will list the proceedings for mention in relation to costs on 8 May 2025.

Orders

143. The Court:

1. Declares that the approval by Lismore City Council of modification application DA92/523-5 to modify development consent DA92/523 to extend the life of a quarry located at 72 River Bank Road, Monaltrie on 10 October 2023 is invalid and of no effect.

2. Reserves costs.

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Decision last updated: 23 April 2025