NSW Quarry Services Pty Ltd v Kempsey Shire Council

[2020] NSWLEC 1414

Land and Environment Court

New South Wales

Medium Neutral Citation:

NSW Quarry Services Pty Ltd v Kempsey Shire Council [2020] NSWLEC 1414

Hearing dates:

Conciliation conference on 4 September 2020

Date of orders:

7 September 2020

Decision date:

07 September 2020

Jurisdiction:

Class 1

Before:

Chilcott C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Modification Application No DA T6-14-53 (Rev 04) to modify Development Consent No DA T6-14-53 in relation to the existing quarry at 593 Gowings Hill Road, Dondingalong NSW is determined by approving the modifications as set out in Annexure “A”.

(3) As a consequence of order (2), Development Consent No DA T6-14-53 is now subject to the consolidated, modified conditions of development consent as set out in Annexure “B”.

Catchwords:

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

Legislation Cited:

Environmental Planning and Assessment Act 1979

Environmental Planning and Assessment Regulation 2000

Land and Environment Court Act 1979

Category:

Principal judgment

Parties:

NSW Quarry Services Pty Ltd (Applicant)
Kempsey Shire Council (Respondent)

Representation:

Counsel:
J Smith (Applicant)
M Staunton (Respondent)

Solicitors:
Balmain Lawyers (Applicant)
Local Government Legal (Respondent)

File Number(s):

2020/202566

Publication restriction:

No

Judgment

1. COMMISSIONER: NSW Quarry Services Pty Ltd (the Applicant) has appealed the deemed refusal by Kempsey Shire Council (the Respondent) of its modification application (T6-14-53 REV04) seeking to modify certain conditions of consent imposed in relation to development consent no. T6-14-53 in relation to the extraction of material from a quarry at 593 Gowings Hill Road, Dondingalong (the Subject Site).

2. The appeal comes to the Court pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EP&A Act) and falls within Class 1 of the Court’s jurisdiction.

3. These proceedings are determined pursuant to the provisions of s 4.55(1A) of the EP&A Act.

4. The Court had arranged a conciliation conference under s 34 of the Land and Environment Court Act 1979 (LEC Act) between the Parties, which was held on 4 September 2020, and I presided over that conciliation conference.

5. At the conciliation conference, the Parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the Parties. This decision involved the Court upholding the appeal and granting consent to the Applicant’s development application, subject to conditions.

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the Parties’ decision if the Parties’ decision is a decision that the Court could have made in the proper exercise of its functions.

7. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The Parties advised that the jurisdictional prerequisites of relevance in these proceedings have been addressed as follows:

1. the modification application that is the subject of this appeal was made pursuant to the provisions of s 4.55(1A) of the EP&A Act, and in relation to this the Parties have advised that on the basis of the terms of their agreement:

1. the proposed modification is of minimal environmental impact;

2. the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all);

3. the modification application has been notified in accordance with the Environmental Planning and Assessment Regulation 2000; and

4. no submissions were received in response to the Respondent’s notification of the modification application.

2. pursuant to s 7.13(3) of the EP&A Act:

1. a condition imposed under s 7.11 of the EP&A Act that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction); and

2. the Parties have advised that the conditions of consent that are now sought to be disallowed or amended as part of the modification application were, in their assessment, unreasonable in the particular circumstances of the case, and that the modified conditions proposed under the agreement of the Parties in this appeal, are therefore of a kind that are compliant with the provisions of s 7.13(3) of the EP&A Act.

8. Having considered the advice of the Parties, provided above at [7], I agree that the jurisdictional prerequisites on which I must be satisfied before I can exercise the power under s 4.55(1A) of the EP&A Act have been so satisfied.

9. I am further satisfied that the Parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

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

11. The Court orders that:

1. The appeal is upheld.

2. Modification Application No DA T6-14-53 (Rev 04) to modify Development Consent No DA T6-14-53 in relation to the existing quarry at 593 Gowings Hill Road, Dondingalong NSW is determined by approving the modifications as set out in Annexure “A”.

3. As a consequence of order (2), Development Consent No DA T6-14-53 is now subject to the consolidated, modified conditions of development consent as set out in Annexure “B”.

……………………………..

M Chilcott

Commissioner of the Court

Annexure A (107452, pdf)

Annexure B (238254, pdf)

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Decision last updated: 07 September 2020