Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd - [2009] NSWLEC 197

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

PARTIES: Shoalhaven City Council (Applicant)
South Coast Concrete Crushing & Recycling Pty Ltd (First Respondent)
Abib Pty Ltd (Second Respondent)

FILE NUMBER(S): 40630 of 2008

CORAM: Lloyd J

KEY ISSUES:
EXISTING USE :- categorisation of current and historic uses - Shoalhaven Local Environmental Plan 1985 - uses categorised as extractive industry and industry - distinction between ancillary use and separate independent use - enlargement, expansion or intensification of extractive industry - appropriate limit on rate of extraction
CONSTRUCTION AND INTERPRETATION :- development consent allowing the "crushing and recycling of waste products" - use of extrinsic materials to interpret development consent
MINES AND MINERALS :- interpretation of "minerals" and "mining operations" under Mining Act 1992 - immunity under s 74 of Mining Act from provisions of the Environmental Planning and Assessment Act 1979 - temporal application of immunity
RES JUDICATA :- inconsistent judgment - prior judgment based upon a concession of parties - party in present case not a party to prior judgment

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 106, s 107 & s 109
Environmental Planning and Assessment Model Provisions 1980 cl 4, cl 35, Sch 1 cl 7
Environmental Planning and Assessment Regulation 2000 cl 8K
Mining Act 1992 s 74
Mining (General) Regulation 1997 cl 3, cl 4, cl 50, Sch 1 (repealed)
Mining Regulation 2003 cl 3, cl 5, Sch 2, Sch 11 cl 6,
Shoalhaven Local Environmental Plan 1985, cl 5, cl 6

CASES CITED: Ashfield Municipal Council v Armstrong [2003] NSWCA 353
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Blair v Curran (1939) 62 CLR 464
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Grace v Thomas Street Café [2007] NSWCA 359; (2007) 159 LGERA 57
King v Lewis (1991) 74 LGRA 362
King v Lewis (1995) 88 LGERA 183
Leichardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439
Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390
Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd (No 2) [2006] NSWLEC 734
Nymboida Shire Council v Skar Industries Pty Ltd [1998] NSWLEC 166; (1998) 99 LGERA 178
Shire of Perth v O’Keefe (1964) 110 CLR 529
South Sydney City Council v Houlakis (1996) 92 LGERA 401
Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404
Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580
Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184
YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395

DATES OF HEARING: 1 September 2009 & 2 September 2009

DATE OF JUDGMENT:
14 December 2009

LEGAL REPRESENTATIVES:
APPLICANT:
A E Galasso SC
SOLICITORS:
Morton & Harris RMB Lawyers
FIRST & SECOND RESPONDENTS:
I J Hemmings (barrister)
SOLICITORS:
Access Law Group

JUDGMENT:

- 70 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Monday, 14 December 2009

LEC No. 40630 of 2008

SHOALHAVEN CITY COUNCIL v SOUTH COAST CONCRETE CRUSHING AND RECYCLING PTY LTD & ANOR [2009] NSWLEC 197

JUDGMENT

Introduction

1 HIS HONOUR: This is a case about existing use rights.

2 It follows two previous judgments regarding the use of the respondents’ land: Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390; Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd (No 2) [2006] NSWLEC 734. At the respondents’ request, I have allowed the extent of existing use rights, if any, to be determined as a separate question (see r 28.2, Uniform Civil Procedure Rules 2005). I have also allowed, again at the respondents’ request, evidence and submissions on the question of the exercise of the Court’s discretion, if required, to be filed and served after the determination of the separate questions.

3 Adjacent to the Princes Highway at South Nowra is an area of land formerly known as the Nowra Brickworks, but no longer used for the purpose of brickmaking. The second respondent, Abib Pty Ltd is the lessee of land from the Crown under a mining lease, described as Mineral Lease 5087 (referred to in these proceedings as “ML1”). ML1 was first granted on 8 January 1948 and remains in force until 8 January 2019. ML1 authorises the extraction of brick clay and clay shale. The first respondent, South Coast Concrete Crushing and Recycling Pty Ltd (SCCCR), occupies the land and, with the consent of Abib, continues to extract material from the land, but the material extracted is no longer used in the manufacture of bricks. SCCCR sells the extracted material as road base and also uses it to manufacture on the land a blended material with crushed waste products.

4 The Council by its amended summons seeks a declaration that the extraction of material not used for brickmaking is an “extractive industry” for which there is no development consent; that the process of importing materials for blending with material extracted from the land is an “industry” which is a prohibited use; and alternatively, that a significant increase in the rate of extraction comprises an unlawful intensification of the existing use; and consequential relief.

5 In particular, the Council says that there was a fundamental and significant change in the use of the land in about the year 2000 when brickmaking ceased. That is, the use of the land for the core purpose of brickmaking was abandoned and the present activities on the land amount to an unlawful change of use and unlawful intensification of use.

6 The respondents say, however, that the activities are protected by existing use rights and by the current consent granted on 14 July 2003 for the “crushing and recycling waste products”.

7 The relevant date for the purpose of establishing an existing use is 28 February 1964, when Shoalhaven Interim Development Order No. 1 (“the IDO”) commenced and under which extractive industries, industries other than rural industries, mines and quarries were all prohibited.

The issues

8 The questions to be determined as originally framed were:

(a) What is the correct categorisation for the current use of the site under the Shoalhaven Local Environmental Plan 1985?

(b) Is the current use unlawful in the absence of development consent or existing use rights?

(i) To what extent is the current use authorised by the 2003 development consent?

(ii) Is the current use protected by existing use rights?

Environmental Planning and Assessment

Act

(ii) Was there an enlargement, expansion or intensification of the use after this date?

(iii) If there was an enlargement, expansion or intensification of the use, to what extent should the use be limited?

9 During the hearing, however, a number of additional questions arising from the evidence arose for determination, and are answered at par [210] below.

Issue 1: What is the correct categorisation for the current use of the site?

10 Mr John Green, the sole director of both respondents, says that the following operations have been conducted since about November 2006:

“(a) Extraction of approximately 7000 tonnes per year of weathered shale material using the excavator. This material is either loaded directly onto road registered trucks for transportation to SCCCR’s customers or, for stock pile for later despatch and sale;

(b) Extraction of approximately 87500 tonnes per [year] of unweathered shale material using drill and blast techniques;

(c) Importation of approximately 2500 tonnes per year of brick, concrete and waste bitumen materials for crushing and recycling operations;

(d) Importation of approximately 35000 tonnes per year of quarry products from other quarries for blending operations;

(e) Crushing, screening and blending of extracted, recycling and blending materials to produce general and specialised quarry products;

(f) Stockpiling of quarry products for sale;

11 Mr Green says that the method by which the quarrying activities have been conducted for the last 11 years is as follows:

“(a) An area for extraction is identified and surveyed;

(b) The top level soil has been moved by excavator and front end loader. This material is stored for future restoration works or, is sold;

(c) Brown shale is removed and sold for general controlled filling and local farming. Brown shale has good compactability and has a good CBR (Californian Bearing Ratio) rating which means it can be certified for use in a number of construction projects;

(d) In order to remove blue shale, charges are positioned by a licensed powerman and the charges are then detonated causing the area of blue shale to slump;

(e) An excavator then places blue shale into a crusher at the quarry face which is able to crush the shale from large boulders into different size aggregate depending on the nature of the end product. The crushed shale can then either be trucked away off site or alternatively it can be blended with other material including brown shale, and/or crushed concrete;

(f) In terms of concrete, various contractors supply and cart concrete to the quarry. The concrete is taken from demolition projects and is processed by placing the concrete in the crushing unit. Iron bars are removed during the crushing process with the assistance of magnets. The end product which is achieved is a concrete aggregate which is then blended with shale to produce the patent material which has been exported from the quarry for road making, hardstand areas and for other construction purposes .”

Relevant provisions

12 The Shoalhaven Local Environmental Plan 1985 (“the Shoalhaven LEP”), which commenced on 15 May 1985, now applies and it adopts the Environmental Planning and Assessment Model Provisions 1980: cl 5.

13 Clause 4(1) of the Model Provisions provides the following definitions:

“ ’extractive industry’ means -

(a) the winning of extractive material; or

and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land

…

’industry’ means -

(a) any manufacturing process within the meaning of the Factories, Shops and Industries Act 1962; or

(b) the breaking up or dismantling of any goods or any article for trade or sale or gain or as ancillary to any business;

but does not include an extractive industry

…

‘mine’ means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method and any place on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry ;”

14 The words “quarry”, “mineral” and “metal” are not defined under the Model Provisions or the Shoalhaven LEP. “Manufacturing process” was defined in the Factories, Shops and Industries Act 1962 as follows:

Manufacturing process

15 Clause 6(1) of the Shoalhaven LEP defines “extractive material” as follows:

“‘extractive material’ means sand, gravel, clay, soil, rock, stone or similar substances, but excludes turf and any sand, soil or other material remaining attached to turf after extraction of turf is carried out .”

Submissions

16 Mr A E Galasso SC, appearing for the Council, submits that the activity of extracting material from ML1 fits within the definition of “extractive industry” because it comprises the “winning of extractive material”. Insofar as the use of the land includes the importation of material which is blended with extracted material won from the site, Mr Galasso submits that that use is a separate use as an “industry”. Mr Galasso says the use falls within the definition of “industry” because:

(a) it is a “ manufacturing process ” as defined under the Factories, Shops and Industries Act ; and

xtractive industry

winning of extractive material

operations on the winning of extractive material from the land

that extractive material on that land

17 Mr I J Hemmings, appearing for the respondents, submits that for the purposes of the existing use provisions, the use is properly categorised as a “quarry” at an appropriate level of particularity. Mr Hemmings submits that for town planning purposes, again at an appropriate level of particularity, the whole of the use is properly characterised as an “extractive industry”.

18 Mr Hemmings submits that the blending and importation of goods is not an independent use of the land, but rather ancillary to these uses as a “quarry” or an “extractive industry”.

19 In support, Mr Hemmings draws my attention to condition 4 of the 2003 development consent, which states:

“ This activity is to be undertaken in conjunction with quarrying activities. This consent shall lapse in the event that quarrying activities cease .”

20 Mr Hemmings submits that this condition recognises that an independent use for an “industry” is prohibited, and that the development consent relies on the importation and blending being classified as an ancillary use to a “quarry” or “extractive industry”.

Finding on issue 1

21 I do not think that for the purposes of this question, the extraction of material should be categorised as a “quarry”. As noted above, a “quarry” is not separately defined. Rather, the extraction of material clearly falls within the definition of “extractive industry” because it involves the “winning of extractive material”. As to the importation and blending of material, in my opinion, this constitutes a separate use as an “industry”. My decision on this point is outlined when I address the existing use provisions below.

Issue 2: Is the current use unlawful in the absence of development consent or existing use rights?

22 On the commencement of the IDO on 28 February 1964, extractive industries, mines and quarries were prohibited uses. The use for an extractive industry (which I have found at par [97] below) was therefore a lawful use as an existing use. On 15 May 1985, Shoalhaven LEP commenced, under which the site is zoned Rural 1(b). In this zone, an “extractive industry” is permissible with development consent. The present use for an “extractive industry” is therefore unlawful unless that use was otherwise lawful immediately before 15 May 1985 (s 109(1) EPA Act).

23 The use for an “industry” is prohibited in the Rural 1(b) zone. Therefore, the present use for an “industry” is unlawful in the absence of an existing use right (s 107(1) EPA Act).

Issue 3: To what extent is the current use authorised by the 2003 development consent?

24 On 14 July 2003, the Council granted development consent on the site for the “crushing and recycling of waste products”. Condition 3 of the consent stated that it is “limited to the importation of up to 3,500 tonnes per annum of demolition material”. On 27 November 2003, condition 3 was modified to allow “importation of up to 5,000 tonnes per annum of demolition material”.

25 The issues raised are as follows:

(a) the extent to which the consent authorises the blending of material extracted from the site with the material the subject of the development consent; and

(b) the extent to which the consent authorises the exportation of material (not being bricks) from the site.

To what extent does the consent authorise the blending of material extracted from ML1?

26 The Council submits that there is no authority under the development consent to blend material extracted from ML1. In support, the Council note that the applicant for consent specifically asserted the independence of this activity.

27 The development application is dated 16 October 2002. Under the heading “describe your proposal” it states:

“ Crushing and recycling of waste products ie. concrete, brick, rock, road materials .”

28 The statement of environmental effects, which is attached to the development application, states the following under the heading “general details”:

“ The crushing and grinding works are to be carried out in mining lease ML5087 (known as ML1) … This plant processes materials from this site and also from the adjoining mining lease … (known as ML2).

The original mining lease was first taken out in this area in January 1948 and has been in operation since that time for the extraction of clay and shale and is currently licensed for these mining operations by the NSW Department of Mineral Resources and the Environment Protection Authority.

The crushing operations, an integral part of the quarry works, are required to break up hard shales for brick making and other purposes. It is also used for the recycling of reject and second grade bricks from the local works and importations for remanufacturing.

Due to slowly decreasing manufacturing of the current moulded type bricks, and the sales of extruded bricks, manufactured offsite increasing, the crusher is not being fully utilised leaving it free to be used for some other operations.

It is proposed to utilise this ‘idle’ time in the recycling and processing of concrete and similar materials.

The crushing plant has recently been modified to comply with the current safety standards, is fitted with efficient dust suppression and magnets for the removal of steel, now making it ideal for the processing and recycling of reinforced waste.
This development proposal is for this purpose only and while utilising the existing infrastructure, it is a separate activity to the normal quarry operations .” (emphasis added)

29 On 5 November 2002, Mr Ken Stevens wrote to the Council in his capacity as director of Nowra Brickworks (NSW) Pty Ltd (the applicants for consent). Under the heading “Designated Development”, the letter states:

“ As stated in the original application, this proposed development is considered a separate activity to the normal quarry operations and it is not intended to make any alteration to the existing approvals. Nowra Brickworks (NSW) Pty Ltd currently operates the quarry, and holds the licenses and leases etc, and will be the operator of this proposal but will be provided assistance by South Coast Concrete Crushing and Recycling and to that end the operations need to be a separately defined development. ” (emphasis added)

30 Under the heading “Proposed new development” the letter states:

“ Crushing and recycling of concrete and other similar products.

This development will be on a much smaller scale [to] that of the existing development. Quarrying operations are not fully utilising the capacity of the production plant and this proposal will use some of the idle time of the plant.
In character the process is similar in that the product will be crushed, however extra processing is required for the concrete over the shales and clays, as steel reinforcement has to be removed from concrete products. This is done by the addition of magnets to the existing crushing plan t.”

31 The respondents submit that the consent does authorise the blending of extracted material. In support, they note that condition 4 states “This activity is to be undertaken in conjunction with quarrying activities. This consent shall lapse in the event that quarrying activities cease”. They submit that the blending of extracted and imported material is otherwise correctly categorised as an “industry” under the Shoalhaven LEP, which is a prohibited use in the Rural 1(b) zone, and that, in order to be lawful, the consent relies for its validity upon the use being classified as ancillary to the quarry operations, which are permissible as an “extractive industry”. Further in support, the respondents note that under the consent, there is no limit on the importation of extracted materials for use in the crushing and blending process.

32 In my view, the development consent does not authorise the blending of extractive material with the imported waste products. The terms of the development consent authorise the “crushing and recycling of waste products”. There is nothing to suggest that the extractive material is a “waste product”. In my view, condition 4 does not expand the authorisation to include the blending of extractive material. I accept that the importation and blending activities may have been regarded by the Council as ancillary to the quarrying activities, since it was described in the development application as a use of the crusher in what would otherwise be “idle” time, but in my view, this alone is not enough to expand the “crushing and recycling of waste products” to include the blending of the waste products with extractive material.

33 In coming to this conclusion, I place no reliance on the statement of environmental effects and the letter of Mr Stevens referred to me by the Council. On the evidence before the Court, these documents have not been incorporated into the development consent. Condition 1 of the development consent states:

Crushing and Recycling of Waste Products

stamped with reference to this consent

34 The documents tendered in evidence are not “stamped with reference to [the] consent”, and are thus not expressly incorporated into the consent. Further, in my view, they are not impliedly incorporated into the consent. Consequently, I find that the development consent may not be construed by reference to these documents: Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 per Handley JA at 407-408.

To what extent does the consent authorise the exportation of material?

35 The Council submits that the consent does not authorise the exportation of material from the site. In support, it submits that the terms of the consent do not authorise the exportation of material and notes that the development application did not, in its terms, seek authorisation or consent to the exportation off site of material processed and recycled.

36 Under the headings “Notes to Accompany the Statement of Environmental Effects” and “Transport, Traffic and Access”, the statement of environmental effects dated 16 October 2002 states that:

“ No increase in traffic movements are envisaged by the development, as operations will be incorporated within the existing works, with delivery and removal of materials being done by mostly existing vehicle movements currently arriving or leaving unloaded Quarry output operations will be maintained at a similar level to past operations as the brickworks output is decreasing as sales of extruded bricks manufactured offsite is increasing. The recycling of concrete products will simply make up some of this lost production .”

37 The respondents accept that there is no express authorisation for exportation in the development consent. They note, however, that there is no prohibition on exportation and, to the contrary, consent is implied from condition 13 of the consent. Condition 13 of the consent appears under the heading “Part D – Conditions that must be complied with upon completion of the work”. The condition states:

“ Trucks entering or leaving the premises that are carrying loads must be covered at all times, except during loading and unloading .”

38 In support, the respondents submit that one does not need consent, express or otherwise, to export material from the site. They submit that the use of roads for the distribution of extracted materials is no different from any other use that depends upon the use of road infrastructure, such as factories, warehouses or shopping centres – none of which require consent for exportation related to those uses.

39 I accept the submissions of the respondents. In my view, the consent does not need to expressly authorise exportation as this is ancillary to the use permitted by the development consent. Moreover, the consent is for the crushing and recycling of waste products. The word “recycling” suggests that the end product is to be recycled for use, which necessarily involves exporting it from the site.

40 I am unable to take into consideration the paragraph from the statement of environmental effects relied upon by the Council, or the fact that the development application did not seek consent for exportation. As noted above, the terms of the development application and statement of environmental effects may not be relied upon to construe a consent unless they are expressly or by implication incorporated into the consent: Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) per Handley JA at 407-408. And, as noted above, on the evidence before the Court, the statement of environmental effects and development application were not expressly or impliedly incorporated into the consent.

Issue 4: Is the current use protected by existing use rights?

41 Section 107(1) of the EPA Act states:

“(1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use.”

42 Section 106(1) defines “existing use” for the purposes of Pt 4 Div 10 of the EPA Act to mean:

“(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use, and

…”

43 Section 109(1) of the EPA Act states:

“(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained .”

44 The issue is whether, and to what extent, the current use is protected by existing use rights under s 107(1) and s 109(1) of the EPA Act. In order to determine this issue, the following questions need to be examined:

(a) Is the current extraction of material protected by existing use rights?

(b) Is the current blending and importation of material protected by existing use rights?

45 There is some overlap between the examinations of these questions.

Issue 4(a): Is the current extraction of material protected by existing use rights?

46 Between 1964 and about 2000, material was continually extracted from the site and most of the material extracted from the site was used to make bricks at the adjacent brickworks. In about 2000, brickmaking ceased and the extracted material was used to blend with imported waste materials or exported off-site. The issue is whether the change in about 2000 constituted a change in use so that the former use was abandoned and the current use is no longer protected by existing use rights.

Relevant law

47 The relevant definitions are extracted above at par [12] to par [15].

48 It is also necessary to examine the terms of the legislation under which ML1 operates. Section 74(1) of the Mining Act 1992 provided that while a mining lease has effect:

Environmental Planning and Assessment Act 1979

(b) to the extent to which anything in, or done under, that Act or any such instrument would so operate, it is of no effect in relation to the holder of the mining lease. ”

49 Section 74 of the Mining Act was repealed on 16 October 2005. This repeal was delayed until 16 December 2007: cl 8K of the Environmental Planning and Assessment Regulation 2000.

50 The Dictionary to the Mining Act contains the following definitions:

“ mine means:

(a) when used as a noun – any place, pit, shaft, drift, level or other excavation, drift, gutter, lead, vein, lode, reef or salt-pan (whether occurring naturally or artificially created) in, on or by means of which, any mining operation is carried on, and
(b) when used as a verb – to extract material from land for the purpose of recovering minerals from the material so extracted or to rehabilitate land from which material has been so extracted, but does not include any activity declared not to be mining by a regulation

…

mineral means any substance prescribed by the regulations as a mineral for the purposes of this definition, and includes coal and oil shale, but does not include uranium or petroleum.

…

mining operations means operations carried out in the course of mining.”

51 It is clear from these definitions that, in order to constitute “mining operations”, “mining” or a “mine” there must be material extracted for the purpose of recovering “minerals”.

52 In 2000, the Mining (General) Regulation 1997 was in operation. Clause 4(1) of that Regulation provided:

“ The substances referred to in Schedule 1 are prescribed as minerals for the purposes of the definition of mineral in the Dictionary at the end of the [Mining] Act .”

53 Schedule 1 of the Mining (General) Regulation 1997 listed “brick clay” and “clay shale” as “minerals”.

54 On 15 June 2001, the Mining (General) Amendment (Minerals and Royalties) Regulation 2001 was gazetted. It replaced Sch 1 of the Mining (General) Regulation 1997. The terms “clay/shale” and “structural clay” were listed as “minerals”. The terms “brick clay” and “clay shale” were no longer listed as “minerals”.

55 The Mining (General) Amendment (Minerals and Royalties) Regulation 2001 also inserted the following clause into the Mining (General) Regulation 1997:

“ 50 Savings
A reference in a mining lease or a mineral claim (being a lease or claim that has effect on the commencement of the Mining (General) Amendment (Minerals and Royalties) Regulation 2001 to a mineral listed in Column 1 of the Table to this clause is taken to include a reference to a mineral specified in Column 2 opposite the firstmentioned mineral … ”

56 In the table underneath this new clause, “brick clay” in column 1 corresponds with “structural clay” in column 2. “Clay shale” in column 1 corresponds with both “structural clay” and “clay/shale” in column 2. It can be deduced that, under the amendment, a reference in a mining lease to “brick clay” and ”clay shale” was “taken to include” a reference to “structural clay” and “clay/shale”. The definitions of these new terms were inserted into cl 3(1) of the Mining (General) Regulation 1997:

“ clay/shale means clay or shale other than structural clay.

…
structural clay means clay or shale used in the manufacture of fired clay building or construction products, such as bricks, pipes and quarry tiles, but does not include clay or shale suitable for use in road-making or as fill .”

57 On 23 November 2001, the Mining (General) Further Amendment (Minerals and Royalties) Regulation 2001 was gazetted. This amendment replaced the definitions of “clay/shale” and “structural clay” which had been inserted into the Mining (General) Regulation on 15 June 2001. The new definitions were as follows:

clay/shale

structural clay

58 The November 2001 amendment also inserted a replacement for cl 50 of the Mining (General) Regulation 1997. For present purposes, the table underneath was identical to the June 2001 table. The new clause was as follows:

“ 50 Savings

A reference in an exploration licence, mining lease or mineral claim (as in force on 1 July 2001):

(a) to a mineral specified in Column 1 of the Table to this clause is, on and from that date, taken to include a reference to the mineral specified opposite in Column 2 … ”

59 The Mining Regulation 2003 was gazetted on 22 August 2003 and replaced the Mining (General) Regulation 1997. Clause 3 of this Regulation provides definitions to “clay/shale” and “structural clay” which are identical to those in par [57] above. Clause 5 provides:

“ The substances listed in Schedule 2 are prescribed as minerals for the purposes of the definition of mineral in the Dictionary at the end of the Act.”

60 As with the 1997 Regulation, the relevant schedule (Sch 2) lists “clay/shale” and “structural clay” and does not list “clay shale” and “brick clay”.

61 In Sch 11, which is entitled “Savings and transitional provisions”, cl 6 provides:

Mining (General) Regulation 1997

(a) a mineral specified in Column 1 of the Table to this clause is, on and from that date, taken to include a reference to the mineral specified opposite in Column 2 … ”

62 In the table underneath, “brick clay” is listed in column 1 opposite “structural clay” in column 2. “Clay shale” is listed in column 1 opposite “structural clay” and “clay/shale” in column 2.

63 The effect of the changes in the Mining Regulation may therefore be summarised as follows:

(a) Prior to 15 June 2001, “ brick clay ” and “ clay shale ” were listed as “ minerals ” for the purposes of the Mining Act .

brick clay

clay shale

minerals

Mining Act

(c) From 15 June 2001, a reference to “ brick clay ” and “ clay shale ” in a mining lease was “ taken to include ” a reference to the terms “ clay/shale ” and “ structural clay ”, which were listed as “ minerals ” for the purposes of the Mining Act .

(d) In the context of a mining lease, the definitions of “ clay/shale ” and “ structural clay ” introduced by the amendment of 15 June 2001 apply from that date until 1 July 2001.

(e) In the context of a mining lease, the current definitions of “ clay/shale ” and “ structural clay ” in cl 3 of the 2003 regulation operated after 1 July 2001.

The Council’s submissions regarding change of use

64 The Council submits that prior to about 2000, the use of the land was correctly categorised as a “mine” only and that in about 2000, the use of the land changed to a use as an “extractive industry”. As a consequence of this change in use, the Council submits that the use is no longer protected by s 109(1) of the EPA Act.

65 The Council submits that the activities conducted prior to about 2000 fit within the definition of “mine” as provided in the Model Provisions and the Mining Act. It submits that the use constituted a “mine” under the Mining Act because, prior to 15 June 2001, it involved the extraction of material for the purpose of obtaining “minerals” (brick clay and clay shale). It submits that the use constituted a “mine” under the

Model Provisions because:

(a) it involved an operation for the purposes of obtaining “ any metal or mineral ”; and

extractive industry

mine

66 In support, the Council relies on my decision in Normans Plant Hire v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390 where I considered the legality of ML1 and an adjoining quarry (“ML2”). In that case, I said (at [4] and [10]):

“[4] The parties agree that the areas subject to ML1 and ML2 are mines for the purposes of the Mining Act1992 … The dictionary to the Act defines ‘ mining ’ to be the extraction of material from land for the purpose of recovering minerals from the extracted material … The materials extracted under ML1 and ML2 are minerals and thus the areas of the leases are each a mine for the purposes of the Mining Act 1992 .

…
[10] ML1 was granted in 1948 pursuant to the Mining Act 1906 . The parties agree that, since that time and until the Nowra Brickworks ceased operation, believed to be about the year 2000, the land subject to this lease was continuously used for the extraction of brick clay to be used to make bricks at the neighbouring brickworks. This is a lease of some antiquity and was made under an earlier legislative scheme .”

67 In order to establish the submission that it was a “mine” and not an “extractive industry”, the Council submits that a “mine” and an “extractive industry” are mutually exclusive terms for the purposes of the EPA Act, so that where there is a “mine”, there cannot be an “extractive industry”. In support, the Council submits that a mine is expressly excluded from the definition of “extractive industry”, which is expressed in the form of two alternatives - either (a) or (b). As I understand its submission, the Council says that a “mine” is excluded from part (a) of the definition of “extractive industry” because the definition of “mine” relates to the extraction, crushing and other treatment of “any metal or mineral” whereas part (a) relates to the winning of “extractive material”. As to the other alternative, the Council submits that a “mine” is excluded from part (b) of the definition of “extractive industry” because that part requires an undertaking “not being a mine”. In support, the Council note that the Model Provisions further indicate that “mine” and “extractive industry” are mutually exclusive terms. This is demonstrated by the designation of a “mine” as an exempt development and the failure to designate an “extractive industry” as an exempt development: cl 35(a) and Sch 1 cl 7.

68 If it is accepted that they are mutually exclusive terms, the Council submits that at one and the same time, the activities cannot constitute both an “extractive industry” under the Shoalhaven LEP and a “mine” under the Mining Act. As I understand its submission, the Council says that the connection between the definition of “mine” in the Shoalhaven LEP and “mine” in the Mining Act is established by the listing of a “mine” as an exempt development in the Model Provisions. In the Council’s submission, this indicates that the Shoalhaven LEP has deferred the mining exemption to the operation of s 74(1)(a) of the Mining Act and that as a consequence, the definition of “mine” under the EPA Act corresponds with the definition of “mine” under the Mining Act.

69 In summary, therefore, the Council submits that prior to June 2001, the activities constituted a “mine” because:

(a) they fit within the definition of “ mine ” in both the Model Provisions and the Mining Act ; and

mine

quarry

extractive industry

70 The Council submits that the use after about 2000 does not fit within the definition of “mine”, and that there was a change of use to an “extractive industry” and an “industry” so that existing use rights were abandoned.

71 The Council submits that the present activities fit within the definition of “extractive industry” in the Model Provisions. Relying on their submission that a “mine” and an “extractive industry” are mutually exclusive, it submits that the activities following about 2000 are correctly categorised as an “extractive industry” because they do not fit within the definition of “mine” under the Model Provisions or the Mining Act. They do not fit within this definition because:

(a) they were outside the authority of ML1; and

mining operations

Mining Act

72 The Council submits that the question of whether or not the Court has jurisdiction to determine these issues is irrelevant because the Council are not challenging the mining lease or seeking a restraint of activity of the mining lease, and to do so would be unnecessary for the purposes of the planning legislation.

73 As to par [71](a), according to the most recent renewal of ML1, dated 2 March 2000, the lease allowed the extraction of minerals described as “brick clay and clay shale”. The Council submits that the materials extracted after about 2000 were not “brick clay” or “clay shale” and that the use was therefore not authorised by the mining lease. The Council submits that on a proper construction of the Mining Regulation, following June 2001 the reference to “brick clay” and “clay shale” in ML1 was effectively replaced by a reference to “structural clay” and “clay/shale”.

74 In order to arrive at this conclusion, it submits that the phrase “taken to include” in the savings and transitional provisions of the Mining Regulations operated from 15 June 2001 as a phrase of confinement rather than expansion. In support, it submits that the use of the word “include” will not always act as a phrase of expansion, and relies upon YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395. In that case, a statutory definition for the word “security” was defined to include “bill of sale, mortgage, lien, and charge of any real or personal property, and any assignment, conveyance, transfer or dealing with any real or personal property to secure the repayment of any loan”. The majority of the High Court held that this was an exhaustive definition. The High Court took into account the context, and noted that the drafter had used “means” and “includes” somewhat inconsistently when drafting other definitions.

75 Further in support of the contention that “taken to include” is a phrase of confinement, the Council submits that the items listed in column 1 of Sch 11 cl 6 no longer appear in Sch 2 of the Mining Regulation 2003. In the Council’s submission, this indicates that the corresponding definitions in column 2 of Sch 11 cl 6 are replacements for the items listed in column 1.

76 The Council acknowledges that the Department has not taken action to restrain the breach and that, on some of the documents produced by the Department of Primary Industries and Department of Mineral Resources, it would appear that the extraction of “brick clay” and “clay shale” were permitted by that Department. However, the Council submits that regulations should not be construed by reference to the action of the departments administering them, and that even if this was used as an interpretation tool, there are contrary indications in the documentation before the Court. The Council relies on some of the returns to the Department of Primary Industries, which indicate that the royalty rates to be paid are in relation to “structural clay” and “clay/shale” but not in relation to “clay shale” and “brick clay”. The Council also relies on the ambiguity in the returns, which, on looking at the documents, I accept to be the case. The Council submits that the ambiguity indicates that the approach of the Departments should not be determinative of the proper interpretation of the Regulation.

77 Clause 3(1) of the Mining Regulation 2003 defines “clay/shale” and “structural clay” as follows:

“ clay/shale means clay or shale other than structural clay, but does not include clay or shale used in road making or as fill.

…

structural clay

78 From about 2000, the extracted materials from ML1 were not used for the construction of bricks, but were used for road making or as fill. Consequently, the Council submits that from 1 July 2001, the materials extracted no longer fell within the definition of “clay/shale” or “structural clay” and that, as a consequence, the activities were not authorised by the mining lease. The Council submits that the mining lease is a statutory creature issued under the Mining Act and is subject to the definitions made under that Act.

79 As noted in par [71](b) above, the Council further submits that the activity could not be classified as a “mine” because it did not fit within the definition of “mining operations” in s 74(1)(a) of the Mining Act. As noted above, in order to constitute “mining operations”, there must be material extracted for the purpose of recovering “minerals”.

80 The Council submits that the materials extracted do not fall within the definition of “minerals” because they are not “clay/shale” or ”structural clay” or any of the other materials listed in Sch 2 of the Mining Regulation 2003.

81 The Council submits that even if “clay shale” and “brick clay” are correctly classified as “minerals”, the evidence indicates that there was no quantum of clay shale which would indicate a continuance of the use.

82 The Council’s alternative submission is that if the Mining Act were to exempt the use after about 2000, the effect of the repeal of s 74(1)(a) on 16 December 2007 would mean that consent is now required because it is now an “extractive industry” and no longer a “mine”. The Council submits that the requirement for such consent is indicated by cl 8K of the Environmental Planning and Assessment Regulation 2000, which delayed the repeal of the s 74 immunity for two years. The Council submits that the purpose of this two year delay was to allow the holders of mining leases to apply for development consent.

The respondents’ submissions regarding change of use

83 The respondents submit that there are no authorities which suggest that the use should be categorised as narrowly as the categorisation suggested by the Council and that the distinctions sought to be drawn by the Council descend to a level of particularity inappropriate for consideration in a continuing use matter. They submit that the authorities indicate that the categorisation should be as liberally construed as the language in the context allows. At an appropriate level of particularity, they submit that the Court must look at the use without reference to the motives behind the use or the eventual use of the extracted material: Shire of Perth v O’Keefe (1964) 110 CLR 529 per Kitto J at 535. The respondents submit that when the use is classified in such a way, the use of the land was correctly categorised as a “quarry” or an “extractive industry” since 1964 and there has been no change of use as contended by the Council. Once the Court is satisfied that “extractive material” is being won, and that this is the predominant land use, the respondents submit that the Court should not concern itself with the precise nature of the minerals extracted or the changes in use of the extracted material: Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 at [18].

84 The respondents further submit that, categorised in this way, the entire use was subject to the immunity under the Mining Act. Section 74(1)(a) provides that “mining operations” are unaffected by the EPA Act, and the respondents submit that “mining operations” encompass the use as a “mine”, a “quarry” and an “extractive industry”, however those terms may be defined in instruments under the EPA Act.

85 The respondents also make a number of submissions in response to the Council’s submissions.

86 Firstly, the respondents reject the submission that “taken to include” in this context is a phrase of confinement. They submit that the phrase “taken to include” should be interpreted so as to expand the terms “brick clay” and “structural clay” so that the lawful mining operations were for the extraction of “clay shale”, “brick clay”, “clay/shale” and “structural clay”. The respondents submit that the June 2001 amendment should not be read to take away a right which already existed. The respondents submit that if rights under the mining lease were to be taken away, it would need to occur unambiguously and expressly.

87 Consequently, the respondents submit that: (i) the definitions for “clay/shale” and “structural clay” should not be applied to “clay shale” and “brick clay” because to do so would be attempting to apply definitions to the minerals which were not in force at the time of grant of the mining lease; and (ii) because “brick clay” and “clay shale” are not defined, they do not suffer from any potential definitional limitations.

88 In support, the respondents submit that this approach is consistent with the actions of the Department of Primary Industries, which has continued to collect royalties from the mine. They further rely on a letter to the Council from the Department of Mineral Resources dated 11 December 2002. The letter attaches a title sheet for ML1, which indicates that the grant date for the lease was 8 January 1948 and the expiry date is 8 January 2019. In the section entitled “4 minerals” it lists “brick clay”, ”clay shale”, “clay/shale” and “structural clay”. The respondents also rely on a series of returns lodged with the Department of Primary Industries, some of which provide separate entries for “clay shale” and “brick clay”.

89 Secondly, the respondents submit that even if the phrase “taken to include” was interpreted as a word of confinement, the material currently being extracted is correctly classified as a “mineral” because it fits within the definition of “clay/shale”. In the respondents’ submission, “clay/shale” does not depend upon the purpose of use of the extracted material. Rather, it excludes from the definition clay or shale that is actually “used in road making or as fill”. The respondents submit that, understood in that way, a mining lease, simply by granting approval for the extraction of clay/shale, will not permit the extraction of clay/shale that has been used to make a road or that has been used to fill land. The respondents submit that this distinction is used consistently in the definitions in cl 3(1) of the Mining Regulation 2003. They cite the following as examples:

(a) “ Agricultural line ” means something that is “ suitable for use in ” improving the condition of soil. That is, it looks to purpose.

(b) “ Dimension Stone ” means something that is quarried in blocks or slabs for building, decorative or other purposes. That is, it looks to purpose.

Structural clay

in

90 The respondents submit that all of the above definitions, in contrast to “clay/shale”, look to how the materials are going to be used. This is supported by the fact that the current definition of “clay/shale” was amended from the previous definition of 15 June 2001, which stated that it does not include clay or shale “suitable for use” in road making or as fill. If the words “suitable for use” had remained, the respondents submit that it would act like the other provisions above which relate to purpose. The respondents further submit that if the Council’s approach were adopted, there would be no mineral in Sch 2 which could be extracted for the use of road making and fill. That is, it would mean that one is unable to extract under a mining lease products ultimately to be used for road making or fill.

91 Thirdly, the respondents submit that the difference between a “mine” and an “extractive industry” for the purposes of the EPA Act are irrelevant in the application of the s 74 exemption. The respondents submit that even if they are wrong in their interpretation of “minerals”, the existing use provisions are designed to permit the continuation of the use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions: Warlam Pty Ltd v Marrickville Council at [18]. As a consequence, the respondents submit that the site was used for the purposes of the mining lease, which allowed the extraction of “brick clay” and “clay shale”, and that this right was not taken away by the later amendments to the Mining Regulation.

92 Fourthly, the respondents submit that the question of whether the mining lease is being complied with is outside the jurisdiction of the Court. They rely on my statement in Normans Plant Hire where I said (at [8]):

carrying on mining operations in the mining area

carrying on mining operations in accordance with the mining lease

93 Neither party assisted the Court in relation to whether this jurisdiction had since been acquired. The respondents submit that even if jurisdiction has since been acquired:

(a) Compliance with the mining lease is not a matter appropriately dealt with in these proceedings because the Department of Primary Industries, who are presently collecting royalties from the extraction, are not a party.

(b) The ratio decidendi of the passage does not relate to the jurisdictional issue. Rather, the ratio decidendi was that it is irrelevant to determine the details of the substances extracted because s 74(1)(a) states “ carrying on mining operations in the mining area ” and not “ carrying on operations in accordance with the mining lease ”.

Finding on the change of use in relation to extraction of material

94 I find that if one were to stand on the side of the quarry prior to 1963 and compare the use at that time with the current use, then one would say on both occasions that the site is being used for extraction of material for commercial gain. In my view, it does not matter that there has been a change to the purpose for which the material is being used.

95 According to Mr Hemmings, there are no authorities indicating that an existing use for the production or extraction of a primary material changes when the purpose of use for that primary material has changed. Indeed, in my view, such an approach would lead to absurd consequences. If a property had existing use rights for the extraction of iron ore, and the use changed from use for the manufacture of steel to use for the manufacture of another alloy, there would not in my opinion be a change in use. In my opinion, this principle would also apply to the manufacture of component parts. If a property had existing use rights for the manufacture of ink, and the use of the ink changed from the use for the manufacture of biros to use for the manufacture of printing cartridges, there would not in my opinion be a change in use.

96 In Warlam Pty Ltd v Marrickville Council, Biscoe J, in summarising the relevant principles on the categorisation of existing uses, said (at [18]):

“ the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation ”

97 In my view, applying the principles summarised by Biscoe J, it would not be categorising the use too widely if it were categorised as the extraction of material from the ML1 site for commercial gain. Accordingly, I consider that, to the extent that it is necessary to apply a definition from the relevant planning instruments, the appropriate categorisation for this use at all relevant times is an “extractive industry” because it involves the “winning of extractive material”.

98 As noted above, the Council submits that prior to about 2000, the use was correctly categorised as a “mine” and that, consequently, it could not be classified as an “extractive industry”. I do not accept the submission for the following reasons.

99 I agree with the respondents’ submission that the distinction between an “extractive industry” and a “mine” is irrelevant when applying the existing use provisions. Classification of the use in the way suggested by the Council would, in my opinion, be adopting the approach that was disapproved by Kitto J in Shire of Perth v O’Keefe (at 535):

“ The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of the processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. ”

100 As demonstrated above, the various definitions in relevant legislation have changed since 1963. A use for extraction of material for commercial gain, on the other hand, has not changed. It would, in my opinion, be a “meticulous examination of the details of the process or activities” to confine the use for extraction of material in the way suggested by the Council.

101 Even if the examination suggested by the Council were conducted, in my opinion, the use would continue to be classified as an “extractive industry” at all relevant times. I do not accept the submission of the Council that a use cannot constitute both an “extractive industry” under the Model Provisions and a “mine” under the Mining Act. I do not believe that the definition of “mine” in the Model Provisions corresponds with the definition of “mine” under the Mining Act because they are separate definitions. That is, by defining a “mine” in the Mining Act, the legislature has discarded the ordinary meaning of the word and adopted an artificial meaning solely for the purpose of that Act. Similarly, in the Model Provisions, the word as defined applies solely for the purposes of those Provisions. The definition of “mine” in the Model Provisions is very broad. The terms “with the purpose of obtaining any metal or mineral” should not be narrowly confined to only include “minerals” as defined under the Mining Act. The use clearly falls within alternative (a) of the definition of “extractive industry” under the Model Provisions and, in my opinion, the Mining Act does not change this. The material being extracted clearly falls within the definition of “extractive material”.

Res judicata?

102 The respondents note that in Normans Plant Hire v South Coast Concrete Crushing & Recycling Pty Ltd, I found (at [54]) that “the mining operations under ML1 are lawful”. The respondents submit that, applying the principle of res judicata, the issue of the lawfulness of the activities after about 2000 may not be raised in these proceedings. In the respondents’ view, the Council is submitting that I should make a finding in this case which is inconsistent to a prior judgment.

103 It is clear that Anshun estoppel and issue estoppel do not apply to the present proceedings because the Council was not a party to the proceedings in Normans Plant Hire. The principle of res judicata was described by Dixon J in Blair v Curran (1939) 62 CLR 464 at 532 as follows:

“ in [res judicata] the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence .”

104 In Normans Plant Hire, I identified three different submissions that had been made by SCCCR’s trade competitors, in support of the proposition that ML1 did not enjoy the benefit of s 74 (at [7] and [8]):

Mining Act 1992

Winn v Director-General of National Parks & Wildlife

Mining Act 1973

Mining Act 1992

rrying on mining operations in the mining area

carrying on mining operations in accordance with the mining lease

105 The respondents submit that there is no difference between the submissions raised in Normans Plant Hire and the submissions presently being pressed by the Council.

106 The Council submits that res judicata does not apply because my decision in Normans Plant Hire was based upon a concession of the parties. In par [4] of the decision I said that the parties “agree that the areas subject to ML1 … are mines for the purposes of the Mining Act”. The Council submits that this was a concession to which it should not be bound. The Council relies on Leichardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439. In that case, Spigelman CJ said (at [18]) that leave was not required to argue against an issue that had been determined in another case because that point had been expressly conceded. Insofar as the respondents rely on public policy, the Council submits that the decision in Normans Plant Hire was made in the absence of the Council, a regulatory authority, and that the public policy reasons in favour of rasing a legal point outside the concession in par [4] of Normans Plant Hire are stronger than the public policy reasons in favour of refusing to allow the issue to be determined.

Finding on res judicata issue

107 I do not need to address the res judicata issue for the purposes of issue 4(a) because I have found that the use of the site for the extraction of material is subject to existing use rights, which are categorised at an appropriate level of particularity as an “extractive industry”. The use for an “extractive industry” included the “mining operations” conducted on the land.

Issue 4(b): Is the importation and blending protected by existing use rights?

Evidence

108 As noted above, prior to about 2000, the clay and shale won from ML1 was predominantly used for brickmaking. However, the evidence establishes that there was also the importation of material to the site, which was used to blend with material won from ML1.

109 In the early to mid 1960s, material began to be imported to the site from land located on Yalwal Road in South Nowra. The material was blended with the material won from ML1 in order to create a different coloured brick. The imported material from Yalwal Road was not suitable for brickmaking on its own, and was only suitable as a blended product in the brickmaking process. Prior to the importation of material from Yalwal Road, imported material was brought to the site from various locations including Fitzroy Falls, Bundanoon and the Goulburn area.

110 Mr Ronald Downes, who worked on the site between about 1950 and 1997, says that the importation of material from Yalwal Road intensified in about 1966 and that at this time, the Yalwal Road operations were formalised. He says that the material was imported “on a regular basis” from Yalwal Road, particularly to develop different kinds of bricks. This is confirmed by the evidence of Mr Dennis Hinkley, who worked continuously at the site between 1964 and 2000. Mr Hinkley says that he was “often engaged throughout the course of … employment” in transporting clay from Yalwal Road “back to either the brickworks quarry or directly into the brickworks area”. Mr Hinkley says that he “regularly” brought material from Yalwal Road to be blended with the material from ML1. Mr Hinkley says that he observed the material from Yalwal Road being blended with the material won from ML 1 and that he “blended the material which was imported [from Yalwal Road] with the material won from ML1 on a daily basis”. Mr Hinkley says that:

“ as part of my daily duties I would operate machinery which performed the functions of winning shale, crushing of shale and, blending .”

111 Mr Hinkley also recalls transporting material from Yalwal Road to the site when he was working a second job for a transport company. This occurred at some time between 1947 and 1984, when the quarry was owned by Mr Claude Downes. Mr Hinkley says that the loads of material imported from the Yalwal Road quarry to the Brickworks quarry varied but that the process was performed “at least weekly”.

112 Ronald Downes and Mr Hinkley say that the different types of shale won on ML1 would not by themselves provide an adequate aggregate to make bricks, and that it was necessary to blend each of the different types of shale won on ML1 or the material from Yalwal Road together in order to make bricks.

113 Mr Kerry Lynch says that between 1989 and 1995, his company, which undertook subcontracting operations for the Nowra Brickworks, received income from the extraction and haulage of clay from Yalwal Road quarries to the brickworks to blend with the shale from the brickworks Quarry “as part of the brickmaking process”. Mr Lynch says that shale which had been won from ML1 was transported to the brickworks area and that:

“[f]ollowing crushing, the shale was sometimes blended with clay won from the Yalwal Quarry into the brickworks. In total there would have been approximately 2 employees working fulltime on this task depending on the demand at the time. ”

114 Mr Kenneth Stevens, a director of Nowra Brickworks (NSW) Pty Ltd, says that from early 1997, material imported from Yalwal Road was acquired “at least on a weekly basis”. Mr Stevens recalls speaking to Mr Claude Downes, the operator of the quarry from 1947 to 1984, who told him words to the effect of:

“ I used to get clay out of a hole near Greenwell Point until I was able to get the lease on Yalwal Road at about 1963. I used the material from Yalwal Road to bring into the Quarry to blend.”

115 After noting that the development application sought consent for the crushing and recycling of waste products, Mr Stevens says that:

“ The disposal of material which was crushed and recycled was amongst other uses used for blending with material which was won from ML1 and ML2. This accompanied the material which continued to be imported from the Yalwal Road mining lease … The blending of the recycled material and that material imported from Yalwal Road provided an opportunity to blend with the material won from ML1 … thus provided a marketable product which was used for roadway infrastructure projects hard stand areas .”

116 Mr Stevens says that:

“ When I took over the quarry [in early 1997] it was evident that a large volume of tailings and other foreign material had been brought to the site and used for the purpose of fill. Commonly this exercise was undertaken for the purpose of hiding the actual volume of material being extracted to avoid the payment of full royalties .”

117 The statement of environmental effects, which is attached to the development application dated 16 October 2002, states the following under the heading “general details”:

The crushing operations, an integral part of the quarry works, are required to break up hard shales for brick making and other purposes

The Council’s submissions

118 The Council accepts that the use for brickmaking was protected by existing use rights but submits that the blending of imported material with extracted material is not an existing use because it is an independent use commenced unlawfully. The Council submits that the importation and blending prior to about 2000, noted in the evidence above, was truly ancillary to brickmaking and when the brickmaking use stopped it became the core and dominant purpose which by its nature and extent was able to be categorised as a separate independent use as an “industry”.

119 In support, the Council submits that:

(b) The Mining Act and ML1 regulate the activities on the site as a mine, and only authorise those activities related to the mining of the specified minerals. Consequently, the immunity did not apply to that part of the use which is outside the use for the purpose of the “ mine ” under the Mining Act. All that the immunity under the mining lease extended to, taken at its highest, was the extraction of material and the rehabilitation of the land.

industry

extractive industry

quarry

extractive industry

mine

120 In Grace v Thomas Street Café [2007] NSWCA 359; (2007) 159 LGERA 57 Beazley JA said at [60]:

Shire of Perth v O’Keefe

At first instance the court held that the relevant ‘existing use’ was for the ‘purpose of light industry’ as defined in the by-laws. There was no doubt that pottery making fell within the category of light industry. The question whether the ‘purpose’ for which the land was being used needed to be defined more narrowly for the purpose of the existing use provisions. Kitto J (with whom Owen J agreed), considered that there was a distinction between the use for the purpose of pottery making and use for some other form of light industry, although a change in the method of pottery making would not have been sufficient to destroy the existing use .”

121 In Warlam Pty Ltd v Marrickville Council, Biscoe J said (at [19])

Shire of Perth v O’Keefe

Shire of Perth

Woollahra Municipal Council v Banool Developments

Royal

North Sydney Municipal Council v Boyts Radio

Grace

122 The Council accepts that a use can naturally evolve over a period. However, it submits that this has not occurred in the present case. It submits that the question is always the purpose of the use (Beazley JA in Grace) and that prior to 2000, the purpose of the existing use was for brickmaking only which was analogous to the purpose of pottery making considered in Shire of Perth v O’Keefe. The Council submits that existing use rights applied only to that purpose, and not more broadly to the other purpose of manufacturing road making material and fill.

The respondents’ submissions

123 The respondents submit that, as a matter of fact and degree, the blending and importation has always been ancillary to the existing use as an “extractive industry” or a “quarry”. The respondents submit that it follows that it was protected by the immunity under s 74 of the Mining Act until 16 December 2007 and that the current use which, according to Mr Green has been continuing for the “past 11 years”, would be protected by s 109 of the EPA Act.

124 In support, the respondents submit that the ancillary nature of the use is reflected in the development consent for crushing and recycling of waste products dated 14 July 2003. Condition 4 states:

“ This activity is to be undertaken in conjunction with quarrying activities. This consent shall lapse in the event that quarrying activities cease .”

125 The respondents submit that this condition constitutes a concession that there is a history of the importation and blending of extracted materials, and that, given that an “industry” is a prohibited use under the Shoalhaven LEP, the Council needed to rely for the grant of consent on existing use rights insofar as the importation and blending was ancillary to the use as a “quarry” or an “extractive industry”.

126 Further in support, the respondents submit that the built form or design of a use can change and remain protected by the existing use provisions: Ashfield Municipal Council v Armstrong [2003] NSWCA 353.

127 The respondents also rely upon Warlam Pty Ltd v Marrickville Council at [18], where Biscoe J, in summarising principles of existing use, said that “the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless”. The respondents submit that the blending and importation of material for the purposes of creating road making material, an ancillary use, is a natural change in the use contemplated by that statement and does not constitute an independent change in use.

Finding on issue 4(b)

128 In Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157, Glass JA said (at 161):

“ Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged .”

129 In Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404, Meagher JA said (at 409-10):

“ Notwithstanding the principles laid down in Foodbarn it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being any independent use of the land. It is a question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is ‘ancillary to’, or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses … illustrate the point: they show that a ‘convenience store’ and a petrol station are two independent uses, although the former is the ancillary to the latter. This is a fortiori the case where the ‘ancillary’ use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not ‘ancillary’ to any other use. ”

130 In my view, applying Foodbarn and Baulkham Hills Shire Council v O’Donnell, there have been three separate existing use rights.

131 The first existing use is an “extractive industry” as described above, which involves the “winning of extractive material”. The purpose of this use was to extract material for commercial gain.

132 The second existing use was for brickmaking, which involved a “dry pressing” process. As accepted by the Council, this use had the benefit of existing use rights prior to its abandonment in about 2000.

166 In my opinion, the use fell within the definition of “mining operations” prior to 23 November 2001 but did not fall within that definition afterwards to the extent that the extracted material was not used for brickmaking. Prior to 15 June 2001, the activities fit within the definitions of “clay shale” and “brick clay” which were listed as “minerals” under Sch 1 of the Mining (General) Regulation 1997. Between 15 June 2001 and 23 November 2001, the activities fell within the definitions of “clay/shale” and “structural clay”, which were the only applicable “minerals” in Sch 1 of the Mining (General) Regulation 1997. Following 23 November 2001, the activities did not fall within the definitions of “clay/shale” and “structural clay” or any of the other “minerals” in Sch 1 of the Mining (General) Regulation 1997. I do not accept the respondents’ submissions in par [90] above that the activities other than brickmaking fell within the new definition of “clay/shale”. In my opinion, the definition of “clay/shale” looks to purpose in the same way as the other examples. The use of the terms “used in” rather than “suitable for use in” does not, in my opinion, mean that the definition of “clay/shale” incorporates clay or shale extracted for the purpose of road making or as fill.

167 The savings provisions are irrelevant for the purposes of this exercise. The savings provisions relate only to the words used under the mining lease, and hence the authorisation under the mining lease. They do not relate to what constitutes “mining operations”. In my view, it is possible for the activities to be authorised by ML1, in applying the expansionary interpretation to the terms “taken to include”, without the activities falling within the definition of “mining operations”. As noted above, I believe that the phrase “mining operations” in s 74 is a different thing to “mining operations in accordance with the mining lease”.

168 For the reasons raised by the Council, I am able to determine this issue despite my finding in Normans Plant Hire that the mining operations at ML1 are lawful. This is because the finding in that case was based upon a concession by the parties that ML1 was a “mine” for the purposes of the Mining Act. This concession presupposes that the materials extracted were “minerals” for the purposes of the Mining Act. The Council was not, of course, a party and is thus not bound by either the concession or the finding.

169 The relevant date for the purposes of s 109(2) is thus the date that the immunity ceased, that is 23 November 2001. I do not accept the submissions of the Council that it was in 1986. Section 109(1) of the Act states that “nothing in an environmental planning instrument operates” so as to require consent for the continuance of a use. Applying s 109(1) to the present case, nothing in the Shoalhaven LEP operated to the “extractive industry” use until 23 November 2001, when the immunity under the Mining Act ceased. Consequently, the provisions of s 109 of the Mining Act were not enlivened until 23 November 2001.

Issue 6: Was there an enlargement, expansion or intensification after this date?

Evidence

170 Annexed to Mr Lynch’s affidavit is a document entitled “application for registration of continued mine or extractive industry under state environmental planning policy no. 37”. The precise date of lodgement is unclear on the copy before the Court, which indicates that it was some time in the 1990s. Under the heading “details of operation before planning controls (prior to 28 February 1964)”, the document states that the operation commenced in 1947. Under the title “quantities produced in each year of operation until 1963”, it states “Records of previous owners not available, but quantities produced are guessed at 7500 tonnes per annum average”.

171 Mr Jeremy Leather, who operated the quarry between about 1984 and 1997, wrote a letter to the Council dated 4 April 1995. The letter advises that the Nowra Brickworks intend to submit a development application for their “brick shale pit”. The letter provides the following information for comment:

“ Present production output from this pit is approximately 4,000 – 5,000 tonnes per annum and was some 2,000 tonnes per annum more than this up until 10 years ago .”

172 The “Annual Environmental Management Report for Nowra Brickworks Quarry” is dated April 2001. Under “Summary of Operations”, it states “total materials extracted in the 12 months to the end of March, 2001 was 5,592.5 tonnes”.

173 Royalty returns submitted by the first respondent to the Department of Mineral Resources and the Department of Primary Industries indicate that for the specified years the material extracted from ML1 was as follows (where all figures referred to the period commencing on 1 July and ending on 30 June the following year):

(b) 44,540 tonnes of clay/shale in 2003/2004;

(c) a total of 42,345 tonnes of material consisting of 30,032 tonnes of structural clay, 12,313 tonnes of clay/shale and ‘nil’ brick clay in 2004/2005;

(d) a total of 112,934 tonnes of material consisting of 9,856 tonnes of clay/shale, 103,078 tonnes of structural clay and ‘nil’ brick clay in 2005/2006 (these figures include the extraction from ML2); and

structural clay

174 As noted at par [10] above, Mr Green says that following July and November 2006, the operations within ML1 have comprised:

“(a) Extraction of approximately 7000 tonnes per year of weathered shale material using the excavator. This material is either loaded directly onto … trucks for transportation to SCCCR’s customers or, for stock pile for later despatch and sale;

(b) Extraction of approximately 87500 tonnes per of unweathered shale material using drill and blast techniques;

(c) Importation of approximately 2500 tonnes per year of brick, concrete and waste bitumen materials for crushing and recycling operations;

(d) Importation of approximately 3500 tonnes per year of quarry products from other quarries for blending operations;

(e) Crushing, screening and blending of extracted, recycling and blending materials to produce general and specialised quarry products;

(f) Stockpiling of quarry products for sale;
(g) Progressive rehabilitation of the areas no longer required for extraction – related purposes .”

175 Mr Green says that each of the above operations were adopted before 15 December 2007 and since that day the operations have not expanded the area in ML1 which is the subject of the quarrying activities.

176 According to the latest renewal of ML1, dated 2 March 2000, the area of the mine is limited to 7.358 hectares, and the depth restriction “embraces the surface and soil below thereof to a depth of 30.48 metres”.

The respondents’ submissions

177 The respondents submit that the issue should be approached adopting the following two step process:

(a) categorisation of the existing use at an appropriate level of generality; and

178 Adopting that approach to the case at hand, the respondents submit that the use is correctly categorised as “extraction of material within the requirements of the mining lease” and there has been no enlargement, expansion or intensification because the rate of extraction is not restricted by ML1. As noted above, ML1 only restricts the area of the mine and the maximum depth of the mine (ie. the volume), and these restrictions are being complied with. The respondents accept that if there was an increase in the volume of material extracted, there would be an enlargement, expansion or intensification for the purposes of s 109(2)(c).

179 In support, the respondents rely upon the way in which the Court of Appeal approached a similar issue in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580. That case considered s 109(2)(b) which, as noted above, provides that nothing in s 109(1) authorises:

“ any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned ”

180 The issue before the Court of Appeal was the extent to which s 109(2)(b) limited the operation a mine in which existing use rights could be exercised. Unlike the present case, the parties had agreed to impose a limitation on the rate of extraction and the issue was exclusively related to area. Nevertheless, Mahoney JA addressed the issue of rate of extraction in the context of s 109(2)(b) and said (at 584):

“ In my opinion, it does not prevent the company in the present case digging a mine or quarry which is deeper than existed before the relevant date. The paragraph [s 109(2)(b)] is directed to the lateral area of the land use: it does not, in such a case as the present restrict the cubic content of what is done .”

181 The following submission was made on behalf of the mining company in that case (at 584-585):

“ And, the suggestion is, that for which the land is ‘actually physically’ being used in that way is, not for ‘reserved land’ but for ‘mining operations’, the latter being the appropriate designation of the overall use. It would follow from this, the company contends, that the commencement of the act of quarrying or mining on part of the reserved land would not represent a change in the use to which ‘actually physically’ it was being put: it would continue to be ‘actually physically’ used for mining operations notwithstanding that the particular acts constituting those operations in the relevant part of the land had changed.”

182 Mahoney JA did not accept the submission. His Honour said (at 585):

“ The various paragraphs of s 109(2) clearly restrict what previously could be done. In my opinion s 109(2)(b) distinguishes between things which, within one existing use, were ‘actually physically’ being done in pursuance of that use and things which were not ‘actually physically’ being done. In this respect, it distinguishes between the area of the use of land which was ‘actually physically’ being used for the relevant purpose and the area which, though being ‘used’ for that purpose, was not ‘actually physically’ being so used. In the present example, it distinguishes between the quarry or mine and the land merely held in reserve. It was, I think, the purpose of the paragraph to make that kind of distinction .”

183 The respondents submit that, in contrast to s 109(2)(b), s 109(2)(c) does not direct its attention to an actual, physical or lawful rate of extraction, but looks to whether there is an enlargement, expansion or intensification so that one needs to determine the intensification by reference to the properly categorised use.

184 In support, the respondents cite South Sydney City Council v Houlakis (1996) 92 LGERA 401, where the Court of Appeal considered whether an extension of operating hours for a licensed premises was an enlargement, expansion or intensification. In that case, the Court held that there was an enlargement, expansion or intensification because it was easily established that the hours of operation at the relevant date were limited. The respondents submit that this case is distinguishable, because there is no similar easily established notion in the circumstances of this case and, to the contrary, although there are limits on the area and volume lawfully used under the Mining Lease, there is and was no limit upon rate of extraction. The respondents note that in Houlakis, the Court of Appeal didn’t go into details as suggested by the Council in the present case. This was deemed unnecessary on the case before the Court of Appeal, as demonstrated by Clarke JA (at 403):

“ These authorities establish in my opinion that when a question arises whether there has been an enlargement, an expansion or an intensification of a use within 109(2)(c) of the Act the Court is required to examine the extent of the use of the relevant land at the date that the relevant environmental planning instrument came into force … and the later use which is claimed to be an enlarged, expanded or intensified use.
The question is one of fact and does not, in my opinion, require a complicated analysis of trading figures, numbers of patrons, etc. In the present case one asks simply whether the great extension of the hours of operation effected an expansion, enlargement or intensification of the earlier use. For my part the question allows only of one answer and that is ‘Yes’.

…

The real question is whether what has been established falls within the notion of increase embodied in s 109(2)(c). I have no doubt that it does. ”

The Council’s submissions

185 The Council submits that there has been an intensification of the use since 1986, which is not lawful to the extent that the intensification has not been the subject of any express authorisation under the Mining Act and has not been subject to the consent of the Council.

186 The Council submits that:

(a) the change in the use of the extracted materials for the purposes of brickmaking to use for the purpose of road making constituted an enlargement, expansion or intensification; and

187 As to par [186](a), the Council submits that, on a proper characterisation of the use, the use prior to about 2000 would be classified as a separate use to the use after about 2000 which was not authorised under ML1. The Council submits that the only connection between the two would be the fact that they are occurring on the same land and using material extracted from the quarry. Consequently, the Council submits that the change in use constituted an enlargement, expansion or intensification of the use.

188 As to par [186](b), the Council submits that the rate of extraction of the material has increased significantly. In the period up to the end of the 1990s the rate of extraction from the site was about 7000 tonnes per annum and by contrast, the rate of extraction is now approximately 100,000 tonnes per annum. The Council also notes that the quantity now being imported onto the site far exceeds the quantity that was ever imported prior to the end of brickmaking.

189 In support of these submissions, the Council notes that s 109(2) removed the authority to expand, enlarge or intensify the existing use and the legislature evinced an intention to construe in a much narrower sense than before the use of land unrestrained by the operation of the planning scheme. This intention was summarised by Mahoney JA in Vaughan-Taylor (at 585):

“ It was the intention of the legislature, in enacting s 109(2) in its present form, to place restrictions upon what otherwise would have been the operation of existing use rights. Under the pre-existing law, in some at least of the forms which they took, existing use rights would permit … the enlargement, expansion or intensification of particular uses: existing use rights would allow, for example, the digging of many more tonnes of stone than had originally been dug. The various paragraphs of s 109(2) clearly restrict what previously could be done .”

190 In the same case, Priestley JA said (at 587):

“ The change made by s 109(2) has a particularly radical effect on mining operations. Before Hemmings J the appellant contended it meant the s 109(1) authorisation was limited to precise parts of the area actually disturbed or otherwise physically used at the relevant date. Hemmings J thought that such an interpretation would make vast numbers of mining and quarrying operations unlawful, and that the legislature could not have had such an intention. However, s 109(2) not only seems to me to have the meaning rejected by Hemmings J, but quite deliberately to be intended to have that meaning. It cannot be the case that the legislature, in restricting the ambit of s 109’s operation by the addition of subs (2), was unmindful that the provision would affect mining and extractive operations ;...”

191 The Council referred me to the Court of Appeal’s judgment in King v Lewis (1995) 88 LGERA 183, noting that it is an indicator, if not a conclusive indicator, of the fact that assessing the quantity of extraction from a facility which was no different to the one in the present case is an example of intensification for the purposes of s 109(2)(c). At first instance, Cripps J had estimated that the intensity of the extraction as at January 1986 should be estimated to be 4,000 cubic metres per year, and that by 1990 this level had risen to 20,000 cubic metres per year. His Honour concluded that there had been a substantial intensification of the use between 1986 and 1990 and that s 109(2) prohibited this intensification. On appeal, Kirby ACJ said (at 195):

192 Consequently, the Council submits that the reference to Houlakis is irrelevant. The Council further submits that the application of s 109(2)(b) should not be compared with the application of s 109(2)(c) in the way suggested by the respondents because a limitation on “area” is an entirely different matter to a limitation on “expansion, enlargement or intensification”.

Finding on issue 6

193 As noted above, in my opinion, the use for blending and creation of road product is a separate independent use, and is subject to existing use rights to the extent that it involves the blending of clay and shale. As noted above, in my view, the 2003 development consent granted consent for the importation, crushing and recycling of waste materials, but did not grant consent for the blending of the imported waste materials with clay and shale. I note that Mr Green states that since about November 2006 there has been the continued importation of quarry products from other quarries for blending (see par [10]) and has described the method by which this has been utilised for the past 11 years (see par [11]). As a consequence of these findings and the evidence, I do not accept the submission in par [186](a) that the change in the purpose for which the material was used constituted an enlargement, expansion or intensification. Further, there is no need to determine whether there was an expansion, enlargement or intensification of the established existing use for crushing and blending and I have not been directed to evidence or heard submissions on this point.

194 It is clear, however, that there was an enlargement, expansion or intensification of the use for an “extractive industry” after 23 November 2001. I accept that the respondents’ two step approach should be adopted when determining whether there has been an enlargement, expansion or intensification. However, I reject the submission that the use should be categorised for the purposes of s 109(2) as the “extraction of material within the requirements of the mining lease”. Rather, I am of the opinion that the use should be categorised more narrowly as the “extraction of material”.

195 In my opinion, the case of Houlakis is not directly relevant, and the submissions of the respondents with respect to that case do not persuade me that their approach should be adopted. The restrictions placed upon the trading hours of a licensed premises are not properly compared with the restrictions placed upon the rate of extraction in ML1. The uses are very different in nature and extent. In that case, the Court of Appeal came to the conclusion that an enlargement, expansion or intensification of a licensed premises could be determined by reference to trading hours. In my view, this case is distinguishable by reason of the nature of the use, and the question of whether there is in the present case an enlargement, expansion or intensification should be determined by reference to rate of extraction, consistently with the Court of Appeal’s decision in King v Lewis. The use is not properly categorised as “extraction of material within the requirements of the mining lease” because (i) unlike the trading hours of a licensed premises, the restrictions in ML1 are not an appropriate benchmark for measuring whether there has been an enlargement, expansion or intensification; and (ii) I do not believe that the categorisation of the use as “extraction of material” requires the “complicated analysis” which was disapproved by Clarke JA in Houlakis.

196 In coming to this decision, I bear in mind the following contextual considerations:

(a) The use of the word “ any ” in s 109(2)(c) indicates to me that the provision should be interpreted broadly to encompass an enlargement, expansion or intensification regardless of whether it was authorised under a mining lease.

actually physically and lawfully used immediately before the coming into the operation of the instrument

197 As noted above, the decision in Vaughan-Taylor is not directly on the point as it considered s 109(2)(b). However, I pay particular regard to the following observations:

(a) Mahoney JA noted that the enactment of s 109(2) restricted the previous application of the law, so that existing use rights no longer allow the enlargement, expansion or intensification of particular uses. Mahoney JA went on to use, as a specific example, “ the digging of many more tonnes of stone than had originally been dug ” as a use which is now restricted.

particularly radical effect on mining operations

it cannot be the case that the legislature, in restricting the ambit of s 109’s operation by the addition of subs (2), was unmindful that the provision would affect mining and extractive operations

198 I am also bound by the Court of Appeal’s judgment in King v Lewis, and I have regard to the decision of Cripps J in King v Lewis (1991) 74 LGRA 362. The facts in that case were different to the facts in the present case because there was no consideration of the limits imposed by a mining lease. However, as noted above, in my view the intensification of the use relates to the “extraction of material” and not the “extraction of material in accordance with the mining lease”. In these circumstances, I accept the observation of Kirby ACJ that the increase in extraction rates from 4,000 cubic metres per year to 20,000 cubic metres per year “represents an intensification of the use within the terms of s 109(2)(c)”.

199 In my opinion, there has been expansion and intensification of the use.

Issue 7: If there has been an enlargement, expansion or intensification, how does one impose a limit?

200 The Council seek a declaration that the quantum of output of combined material in consequence of the blending is 64,555 tonnes per annum, or such other quantum as this Court determines appropriate in the circumstances.

201 The Council cites Nymboida Shire Council v Skar Industries Pty Ltd [1998] NSWLEC 166; (1998) 99 LGERA 178. In that case, Sheahan J said (at 190-191):

“ As the courts have not construed ‘as at’ to mean ‘on’ any particular date, the ordinary meaning of ‘immediately before’ cannot be quite so narrow and restrictive either. The authorities dealt with in this judgment persuade the court that it is neither necessary nor reasonable to focus only on one day, one month, or perhaps even one year, as the relevant period. Construing the relevant restrictions charitably (Cripps J in Lewis), and resolving their ambiguity in favour of the proponent (Boyts Radio and Kirby ACJ in Lewis), I conclude that the appropriate amount of extraction to allow post 3 February 1986 should take into account the relevant operation history of the quarry, in a naturally fluctuating market, over ‘ a reasonable period ’ prior to ‘ the key date ’ ”.

202 The Council submits that the diversity in figures between 2000/2001 and 2006/2007, in circumstances in which the user of the land might wish to increase output on the eve of the abatement of an immunity and in circumstances in which there are fluctuations in extraction, should be considered when adopting the approach applied by Sheahan J in Nymboida Shire Council.

203 The Council submits that even if a liberal or charitable approach were adopted, it needs to be acknowledged that there was a use averaging about 7,000 tonnes per annum for a long period of time, followed by a period of about 5 years in which it was about 65,000 tonnes per annum. Bearing this history into consideration, the Council submits that the long term average would be much lower than 65,000 tonnes per annum.

204 In the alternative, if the relevant date is 16 December 2007, the Council submits that the available evidence suggests that the rate of extraction was an average of about 65,000 tonnes per annum. The Council submits that “expansion, enlargement or intensification” encompasses the increase in extraction rates over the last 11 years.

The respondents’ submissions

205 The respondents submit that the Court should apply a liberal approach and that an averaging exercise over a number of years is not appropriate in the present case. The respondents submit that, in imposing a limit, the relevant date is 16 December 2007 and one needs to look at what occurred immediately before this date and what occurred immediately after.

206 In support of a liberal approach, the respondents rely on Sheahan J’s judgment in Nymboida (at 187):

“ As the EPAA, s 109(2), effectively cuts back on what would, in the commercial world, be regarded as ‘valuable economic rights’, the courts have said that such a provision should be construed liberally in cases of ambiguity, so as to favour the proponent of the right: see, eg, Lewis and North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50; 67 LGRA 344. ”

207 The respondents also rely on the way in which Sheahan J formulated his approach by “construing the relevant restrictions charitably”.

Finding on issue 7

208 As noted above, in my opinion the relevant date is 23 November 2001. Prior to this date, production output from the pit was between about 5,000 and 7,000 tonnes of material per annum. In Nymboida, Sheahan J said (at 191):

“ What is a ‘reasonable period prior to’ 3 February 1986 will always be a question of fact which can be determined only by considering the circumstances of each case. The court would, in my view, determine the question generally on the basis that the ‘reasonable period’ is one that is a fair and accurate representation of the average intensity of the use prior to the relevant date, taking into account any clear trends of expansion or contraction.”

209 In my opinion, a reasonable period in this case would encompass the entire period between the commencement of operations in 1947 and 23 November 2001. After examining extraction rates during this period and construing s 109(2) liberally, in my opinion the extraction of material from the pit should be limited to 7,000 tonnes per annum.

Conclusion and orders

210 I have come to the following conclusions on the various issues raised during the hearing:

(1) The correct categorisation of the current uses of the respondents’ land is an “ extractive industry ” which is permissible with consent under the Shoalhaven LEP, and a separate use as an “ industry ”, which is a prohibited use.

(2) The current use as an “ extractive industry ” is unlawful in the absence of either a right to continue the use under Pt 4 Div 10 of the EPA Act or the grant of a development consent for that use. The current use as an industry is unlawful unless it is an existing use as defined in s 106 of the Act.

(3) The use of the land for brickmaking was a separate independent use as an industry and an existing use, but that use was abandoned in about 2000 when brickmaking ceased.

(4) The development consent granted by the Council on 14 July 2003 authorises the “ crushing and recycling of waste products ”. It does not authorise the blending of the imported waste products with the clay and shale material extracted from ML1 or the imported clay and shale.

(5) The development consent allows the exportation of the crushed and recycled waste products.

(6) The crushing and blending of clay and shale material, imported or otherwise, is an “ industry ” which is and was at all material times an existing use as defined in s 106 of the Act, and is thus a lawful use. I have not decided whether s 109(2) applies to this existing use.

(7) The winning of clay and shale from ML1 is an “ extractive industry ”, which use may continue under s 109(1) of the EPA Act.

(8) The prohibition in s 109(2)(c) of the EPA Act against any enlargement, expansion or intensification of the extractive industry operates from the date upon which the immunity from that Act (by dint of s 74 of the Mining Act ) ceased, namely 23 November 2001.

211 At the request of the respondents, the question of the exercise of the Court’s discretion and the making of final orders is deferred for separate determination to enable the parties to adduce evidence on those questions.

I hereby certify that the preceding 211 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate
Dated: 14 December 2009

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Citations

Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

Most Recent Citation

Shoalhaven City Council v South Coast Concrete Crushing and Recycling Pty Ltd [2010] NSWLEC 80

Cases Citing This Decision

3

Burwood Council v Iglesia Ni Cristo (No 2) [2019] NSWLEC 159

Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42

Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2010] NSWLEC 80

Cases Cited

14

Statutory Material Cited

7

Normans Plant Hire Pty Limited & (2) Ors v South Coast Concrete Crushing & Recycling Pty Limited [2006] NSWLEC 390

Normans Plant Hire Pty Limited & (2) Ors) v South Coast Concrete Crushing & Recycling Pty Limited (No. 2) [2006] NSWLEC 734

YZ Finance Co Pty Ltd v Cummings [1964] HCA 12

CITATION:	Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197
PARTIES:	Shoalhaven City Council (Applicant) South Coast Concrete Crushing & Recycling Pty Ltd (First Respondent) Abib Pty Ltd (Second Respondent)
FILE NUMBER(S):	40630 of 2008
CORAM:	Lloyd J
KEY ISSUES:	EXISTING USE :- categorisation of current and historic uses - Shoalhaven Local Environmental Plan 1985 - uses categorised as extractive industry and industry - distinction between ancillary use and separate independent use - enlargement, expansion or intensification of extractive industry - appropriate limit on rate of extraction CONSTRUCTION AND INTERPRETATION :- development consent allowing the "crushing and recycling of waste products" - use of extrinsic materials to interpret development consent MINES AND MINERALS :- interpretation of "minerals" and "mining operations" under Mining Act 1992 - immunity under s 74 of Mining Act from provisions of the Environmental Planning and Assessment Act 1979 - temporal application of immunity RES JUDICATA :- inconsistent judgment - prior judgment based upon a concession of parties - party in present case not a party to prior judgment
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 106, s 107 & s 109 Environmental Planning and Assessment Model Provisions 1980 cl 4, cl 35, Sch 1 cl 7 Environmental Planning and Assessment Regulation 2000 cl 8K Mining Act 1992 s 74 Mining (General) Regulation 1997 cl 3, cl 4, cl 50, Sch 1 (repealed) Mining Regulation 2003 cl 3, cl 5, Sch 2, Sch 11 cl 6, Shoalhaven Local Environmental Plan 1985, cl 5, cl 6
CASES CITED:	Ashfield Municipal Council v Armstrong [2003] NSWCA 353 Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Blair v Curran (1939) 62 CLR 464 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Grace v Thomas Street Café [2007] NSWCA 359; (2007) 159 LGERA 57 King v Lewis (1991) 74 LGRA 362 King v Lewis (1995) 88 LGERA 183 Leichardt Council v Roads and Traffic Authority (NSW) [2006] NSWCA 353; (2006) 149 LGERA 439 Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390 Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd (No 2) [2006] NSWLEC 734 Nymboida Shire Council v Skar Industries Pty Ltd [1998] NSWLEC 166; (1998) 99 LGERA 178 Shire of Perth v O’Keefe (1964) 110 CLR 529 South Sydney City Council v Houlakis (1996) 92 LGERA 401 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23; (2009) 165 LGERA 184 YZ Finance Co Pty Ltd v Cummings (1964) 109 CLR 395
DATES OF HEARING:	1 September 2009 & 2 September 2009
DATE OF JUDGMENT:	14 December 2009
LEGAL REPRESENTATIVES:	APPLICANT: A E Galasso SC SOLICITORS: Morton & Harris RMB Lawyers FIRST & SECOND RESPONDENTS: I J Hemmings (barrister) SOLICITORS: Access Law Group