The Anson Bay Company (Australia) Pty Limited v Bob Blakemore Excavations Pty Ltd
[1989] NSWLEC 231
•08/29/1989
Land and Environment Court
of New South Wales
CITATION: The Anson Bay Company (Australia) Pty Limited & Anor v Bob Blakemore Excavations Pty Ltd & Anor [1989] NSWLEC 231 PARTIES: FIRST APPLICANT
The Anson Bay Company (Australia) Pty LimitedSECOND APPLICANT
Lake Macquaire City CouncilFIRST RESPONDENT
Bob Blakemore Excavations Pty LtdSECOND RESPONDENT
Doug Blakemore Excavations Pty LtdFILE NUMBER(S): 40014 of 1989 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment
Land and Environment Court ActCASES CITED: Jones v. Sutherland Shire Council (1979) 40 LGRA 323, at 327;
Sutherland Shire Council v. Loney and Ors, Munro;
Ors v. Sutherland Shire Council, Land & Environment Court 13th June, 1986 (unreported);
Warringah Shire Council v. Sedevcic (1987) 63 LGRA 361. ;
Foodbarn Pty Ltd v. Solicitor-General (1975) 32 LGRA 157;
Strathfield Municipal Council v. Alpha Plastics Pty Limited and Ors (1988) 66 LGRA 124.;
Bob Blackmore (Blakemore) Pty Limited and Anor v. The Anson Bay Company (Australia) Pty Limited, Court of Appeal, 18th April, 1989 (unreported).DATES OF HEARING: 17/04/89 - 04/05/89 DATE OF JUDGMENT:
08/29/1989LEGAL REPRESENTATIVES: SECOND APPLICANT
FIRST APPLICANT
P.D. McClellan QC
C.J. Stevens
B. Preston
Mallesons Stephen Jaques
T. Simos QC
W.R. Davison
P. Rees, Lake Macquarie City Council
RESPONDENTS
P.C. Tomasetti
R.B. Kandy & Co.
JUDGMENT:
HIS HONOUR: The Anson Bay Company (Australia) Pty Limited ("Anson Bay") is the owner of 1,800 acres (720ha) of land situate at Caves Beach near Swansea in the City of Lake Macquarie. The first and second respondents carry out an extractive industry on parts of the land. The Lake Macquarie City Council ("the Council") whilst initially the third respondent to the application by Anson Bay, is now also, as consent authority under the relevant environmental planning instrument, an applicant in these proceedings. On 25th February, 1986 Anson Bay entered into a licensing agreement with Vestrix Pty Ltd and Vestrit Pty Ltd to carry out an extractive industry on the land, and those companies have subsequently become the first and second respondents herein.
The applicants seek, inter alia, orders with respect to the lawfulness of the use of the land for the purpose of an extractive industry and orders restraining such use in contravention of an environmental planning instrument. The applicants have an onus to establish that there has been and threatens to be a breach of the provisions of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act").
It is common ground that being a non-conforming use under the environmental planning instrument, the respondents are not entitled to continue the use for such purposes unless authorised as an "existing use" pursuant to s.107 of the E.P.& A. Act.
The consent of the interim development authority was required for the carrying out of quarrying works on any part of the land after 1949. Since that time, no owner or occupier of the land has ever claimed that such a consent has been granted. In all dealings with the relevant consent authority, the owners had at all times claimed only that the right to continue the non-conforming use was based upon commencement prior to the implementation of such planning control. Whilst the evidence is less than complete, I am satisfied on the balance of probabilities that no relevant consent has ever been given in respect of the subject land; cf. Jones v. Sutherland Shire Council (1979) 40 LGRA 323, at 327; Sutherland Shire Council v. Loney and Ors, Munro and Ors v. Sutherland Shire Council, Land & Environment Court 13th June, 1986 (unreported)
The onus of proving that the use is a lawful "existing use" and that it commenced prior to the commencement of planning control rests upon the respondents; see Warringah Shire Council v. Sedevcic (1987) 63 LGRA 361.
Such control commenced by Ordinance 105 Town and Country Planning General Interim Development, which was notified on 9th November, 1945, but was not applied to the subject land until 10th March, 1949. The Northumberland County District Planning Scheme was notified on 16th December, 1960. Interim Development Order No.198 Municipality of Lake Macquarie was notified on 22nd June, 1979. The Northumberland Local Environmental Plan No.1 was notified on 21st August, 1981, and the Lake Macquarie Local Environmental Plan 1984 was notified 19th April, 1984.
Therefore the present environmental planning instrument is the Lake Macquarie Local Environmental Plan 1984, as amended by Lake Macquarie Environmental Plan 1984 Amendment No.16 ("the Amended L.E.P."). The Amended L.E.P. prohibits the use of the whole of the subject land for the purpose of quarrying gravel, and has been made to enable the use of the land for the purpose of residential, hotel and tourist facilities. These proceedings have been brought because the owner believes that the continued use of the land pursuant to the licensing agreement for extractive industries will frustrate the purposes for which the land has been zoned by the Amended L.E.P.
The appointed day for the purposes of the Amended L.E.P. is 10th February, 1989, and the respondents must establish that there was at that time a use of the land for the lawful purpose of an extractive industry, and that there has been a continuation of that use. The particular quarrying activity contended for by the respondents is the quarrying of gravel, rock and material for general filling and the processing of gravel.
The applicants' primary submission is that the use had not commenced prior to 10th March, 1949. If it had, it was limited to discrete parts and also did not continue to the present date.
The land is situated east of the Pacific Highway at Caves Beach south of Swansea. It is now zoned part 7(a) Environmental Protection (Scenic), part 4(b) Special Industry (Quarry), and part Residential 2(b). It has an area of 720ha and is severed by Scenic Drive. The areas claimed to be the subject of past or existing quarrying operations have been described in evidence as areas "A" to "D" inclusive.
There is evidence as at 10th February, 1989 of relatively recent quarrying of gravel from excavations made in areas "A", "B" and "C". Area "D" has not been excavated for may years.
Pursuant to the Northumberland County District Planning Scheme Ordinance, quarry sites "A", "B" and "C" were within a Non-Urban 1(a) zone and the use of land for the purpose of quarries was permissible therein with the consent of the Council. On 22nd June, 1979 area "D" was made subject of Interim Development Order No.198, under which it was zoned 7(f1) Coastal Lands Protection. By amendment on 8th February, 1980 that zone was changed to 7(f2) Coastal Lands Acquisition, however in both zones development of the land for the purpose of rock quarries was prohibited. Pursuant to the provisions of the Northumberland Local Environmental Plan, notified 21st August, 1981, the zoning of quarry sites "A", "B" and "C" remained unchanged. Under the Lake Macquarie Local Environmental Plan, notified 19th April, 1984, quarry site "A" is within Environmental Protection (A) Scenic. Quarries are prohibited in that zone. Quarry site "B" is zoned partly Environmental Protection (Scenic), and partly Residential 2(b). Quarrying is
prohibited in the Environmental Protection zone, but permissible with consent of the Council in the Residential 2(b) zone.
Quarry site "C" is partly within 6(c) Open Space (Local Reservation) zone and partly within 4(b) Special Industry Quarry zone. Development for extractive industries is prohibited in the 6(c) zone, but permitted with the consent of the Council in the 4(b).
Quarry site "D" is situate in an Industrial (b) Special Industry - Quarry zone, and development for the purpose of extractive industry, including quarries, is permissible with the consent of the Council. The disputed rock quarry is within an Environmental Protection (Coastal Lands) zone. Development in this zone for the purpose of extractive industry, including quarries, is prohibited.
It is the Council's case that quarries "A" and "B" commenced about 1954, and quarry "B" was subject to little extraction from 1961 to 1983, and appears to have recommenced at some time prior to 1987. Quarry "C" is said to have commenced some time between 1954 and 1961, and quarry "D" to have commenced in about 1965.
The evidence as to the use of the land prior to 10th March, 1949 was given mainly by Mr and Mrs A. Mawson, who conducted thereon a small coal mine. Notwithstanding his age, Mr Mawson gave a long history of the use of the land, but to some extent was vague on details and dates. Mrs Mawson's recollection appeared to be faulty and unreliable.
In 1945 Northern Highway Collieries Pty Ltd granted a sub-lease of about 350 acres of the land for the purpose of a coal mine. The colliery was then in debt and Mr Mawson redesigned the mine and constructed new tunnels. A drilling programme was undertaken which indicated 1.5 million tons of coal and large quantities of gravel and clay. Mr Mawson now asserts that prior to March, 1949 that land was used for the extraction of such materials, which was separate and distinct from the extraction of coal. Mr Mawson now says he had an intention to acquire the whole of the land for extraction purposes. The evidence establishes that in 1948 Mr Mawson contracted to buy 1,800 acres including the colliery land, and that purchase was completed in 1952. At that time most of the land was vacant, and part was used for horticulture.
Mr Mawson had inspected the mine prior to his occupation, and said that the previous owner had |CF2.|PSI"used gravel for mine stoppings"|CF1.|PSO. "Stoppings" block defunct areas of the underground mine so as to prevent clean air being circulated in those areas. Mr Mawson inspected the areas being used by the previous owners for the winning of gravel, and formed the opinion that |CF2.|PSI"they would be perfect for obtaining gravel for use in the mine"|CF1.|PSO. Prior to his acquisition in 1947 Mr Mawson had the permission of the owner to take that material, and paid small royalties. One of the first things he did was to put gravel on all the haulage roads and tracks within the land and the access roads to the land. He also gravelled the mine entrance. The gravel was removed either by a ripper or a shot firer. Prior to March, 1949 gravel was used by him to fill boggy areas near and around the coal mine, and as land fill for mine bath-houses. Four loads of 20 tons each were sent to Austral Main and Leconfield m
ines. Mr F.J. Murphy confirmed the said use of gravel, but it is probable that its use at Leconfield was after 1949. He said there was some use of that material by the public from stockpiles kept at the mine site.
Anson Bay and the Council submit:|CF2.|PSI
1949 a present use of the whole of the land for b) the total area of the whole of the land was business of quarrying gravel;
regarded as one unit;
different purposes;
Mr Mawson cannot in the circumstances imprint quarrying gravel; and
license and it had been properly determined."|CF1.|PSO
The respondents submit:
a) that Mr Mawson's use of the subject land as at March, 1949 for the extraction of gravel was separate and distinct from the extraction of coal;
b) that the taking of gravel by the public, particularly if taken away for use on lands other than the land from which it is won, is a use for the purpose of an extractive industry;
c) Mr Mawson's intention to acquire the whole of the land for an extractive industry, combined with such use, creates an existing use over the whole of the acquired land;
d) that existing use rights attach to the whole of the land and therefore the respondents are entitled to carry out extraction thereon in all areas authorised by the licensing agreement; and
e) that authorised areas are those hatched on the plan attached to the license, or in any other areas with the consent of the owner.
On 19th May, 1932 Parbury Estates Pty Ltd leased the land, being |CF2.|PSI"the mines, beds, veins and seams of coal lying and being in and under"|CF1.|PSO the subject land, together with the right to |CF2.|PSI"enter upon the said lands and search for, win, work, get, raise, carry away and dispose of the coal in the said mines and premises hereby leased".|CF1.|PSO
There was a sub-lease dated 1st May, 1939 to Frederick William Lane and Graham Newell of |CF2.|PSI"the mines, beds, veins and seams of coal lying and being in and under"|CF1.|PSO the land referred to in that sub-lease. This was the interest which was obtained by Mr Mawson. Mr Mawson's rights to win materials from the subject land prior to acquisition were those vested by the sub-lease or by other permission granted by the owner. In my judgment, Mr Mawson's right to win material under the sub-lease was limited to coal or other materials which were incidental to that use.
Whilst both Mr Mawson and Mr Murphy initially stated that area described as "B" was used for the separate purpose of the extraction of gravel prior to 10th March 1949, I am satisfied that such use did not commence before 1954. This is confirmed to my satisfaction by the aerial photographs. Mr Murphy conceded that in the 1940s the area had no roads and was covered with scrub.
Site "C" also appears not to have been used for quarrying until about 1954-56. This also is corroborated by the aerial photographs. Earlier removal of gravel from that area was clearly on rare occasions and in small quantities. Mr Mawson said that for that purpose he only scratched the top three-quarters of an inch of the surface. The gravel was used to repair wet sections of the road on the land in the vicinity of a house on the land adjoining an area used for horticulture. No other gravel was taken from site "C" until one load was delivered to Utah for construction on the Munmorah Power Station in 1961.
It is common ground that in the vicinity of site "D" a rock quarry for the construction of the Swansea Breakwater was established at or about the turn of the century. There is, however, no evidence of a use as at 10th March, 1949, and no evidence of use of a quarry since that time. There was no use of that quarry in the construction of the nearby Spoon Rocks Breakwater in 1967.
I am satisfied that areas "B", "C" and "D" inclusive were not used or intended to be used for the separate purpose of the extraction of gravel or filling at or prior to March, 1949.
There is a gravel crushing and screening plant at site "A". That plant was erected in or about late 1985 on the footings of an earlier structure which was apparently abandoned in about 1980. I am not persuaded that there was a gravel crushing or screening plant on the land prior to 10th March, 1949. A fixed plant was used from about 1956 in conjunction with subdivision and road building activities. I am satisfied that no consent was ever obtained for the erection or use of any such plant.
I am satisfied that the pre-1949 extraction of gravel was limited to two areas. There was an excavation near the Council Quarry, and another near the opening of the old Normaine mine. After the commencement of the McCarthy Cut there does not appear to have been any gravel removed from the vicinity of the Normaine Mine. Gravel was won from coal mining operations in between the two seams of the McCarthy Cut. I am satisfied that prior to March, 1949 no other part of the land was physically used for the extraction of gravel.
It is clear on the evidence that prior to 1949 Mr Mawson occupied part of the land for the purpose of its use as a coal mine, and then entered into a contract to buy it and adjoining land. The purchase was for a very large area of unfenced, mostly vacant land (1,800 acres), comprising a number of portions severed by roads, and the mine was confined to a small part thereof. The winning of some quantities of gravel was inevitably a by-product of coal mining operations on part of the land, particularly in an open-cut. I accept that prior to 1949 small quantities of gravel were extracted in the vicinity of area "A", sometimes in areas separate from those for actual coal extraction. The existence of gravel on the land was beneficial to the coal mining activity, in that it could be used on the premises for stoppings, filling, road construction and in the erection of structures. To the extent that prior to 10th March, 1949 gravel was sold to the public or otherwise taken away from the subject site, I am satisfied th
at such activities were only small in quantity and on infrequent or rare occasions.
On such findings of fact, as at 10th March, 1949 was the extraction of gravel a use of the land for a separate purpose? I am satisfied that it was not. There can be no doubt that the dominant purpose of the use of part of the land was that of coal mining, but this does not preclude the use of that land for an additional purpose; Foodbarn Pty Ltd v. Solicitor-General (1975) 32 LGRA 157. In that matter the dominant use of premises was for the purpose of wholesale, and it was contended that there was a contravention of the planning scheme because there was also a use for retail. Glass J.A. said at p.161:|CF2.|PSI
"It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. 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. The
ordinance is nonetheless being disobeyed."|CF1.|PSO
It is well settled that the question whether there are two uses, and not merely a use incidental or ancillary to some more dominant purpose is a question of fact and degree. Limited assistance can be obtained from decisions in other cases on particular facts. If it is incidental or ancillary, it is subsumed in the dominant purpose and is not to be regarded separately. This is also confirmed by both Foodbarn (supra) and Gibbs C.J. in Lizzio v. Ryde Municipal Council (1983) 51 LGRA 114, at 117. In the latter case, it was found as a matter of fact that whilst the growing and selling of flowers could be incidental or subordinate to the use of land for the purpose of a dwelling house, in that matter it was not because of the regularity and extent of the activities.
Many examples spring to mind which demonstrate the problem. Using ordinary terminology, a use of land may be described as farming or grazing, notwithstanding that it involved a variety of activities. In order to determine existing use rights attaching to that property it would be erroneous to catalogue or separate each of the activities carried on from time to time. The prime test is explained in Shire of Perth v. O'Keefe, (1964) 10 LGRA 147, at p.150, i.e.:|CF2.|PSI
"But at the outset it is necessary to observe that the 'existing use' by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of 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. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date
is challenged as not being authorised by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v. Nottingham Corporation (2) |CF1.|PSO([1960] 1 WLR 707, at p.717)|CF2.|PSI: and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain."|CF1.|PSO
Such farmer will undoubtedly carry out various activities which subserve the dominant use, e.g. occasionally repair vehicles or equipment, log trees for buildings or fences, or extract some sand, soil or gravel for filling, roads or structures. In particular, it is notorious that most timbered grazing land along the eastern coast of N.S.W. has been used for the occasional "selective" logging and sale of trees since prior to the commencement of planning control; cf. J.N. Bornholt and Ors v. Tweed Shire Council, Land & Environment Court, 4th August, 1989 (unreported). In this matter, the evidence establishes that the cutting of trees was also part of the activities in connection with use of the subject land as a coal mine, and I infer that such logs were probably also used for fences, struts and other structural timbers.
The respondents rely heavily upon evidence of some sale of gravel to the public. However in the above example, if the farmer also occasionally repaired similar vehicles or equipment for his neighbour, occasionally sold a few logs for fence posts, or occasionally sold some gravel to enable a neighbour to repair a road, in my opinion such activities may still be described as incidental or ancillary to the use of the land for farming or grazing. In my opinion it could not properly be said that in such circumstances there was also a "use" of the land for the separate purposes of vehicle or machinery repairs, logging or forestry, or an extractive industry. Of course, each case must depend upon its own facts and it is a question of degree. In a particular case, one or more such activities may, as a matter of fact, be or become a separate and distinct purpose to that of the dominant purpose. If it becomes a separate purpose subsequent to the implementation of planning control, the lawfulness of the continuation of s
uch use depends upon the grant of any necessary consent.
With respect to the circumstances of this matter, the Northern Territory Court of Appeal in Tainui Pty Ltd v. Brown (1988 65 LGRA 22, at 31), considered what appears to me to be an apposite situation. In a proper application of the principles in Shire of Perth v. O'Keefe (supra), the use of the premises according to ordinary terminology at the material date was found to be that of a "bus depot". The sale of petrol to employees or to people connected with the primary use of the land, or to the public, was held to be an incidental or ancillary use subsumed in the dominant purpose, and not an independent activity in the sense described in Foodbarn (supra). The Court said:|CF2.|PSI
"The very occasional sales to members of the public in the circumstances described by His Honour only underline the true position and establish a case of the exception proving the rule."|CF1.|PSO
In my judgment, none of the activities on the subject land prior to 10th March, 1949 associated with the extraction, use and sale of gravel and filling material were for a separate purpose, but were subsumed in the dominant purpose of coal mining.
If I be wrong, a question arises as to whether the whole or only discrete parts of the land were used at the relevant date for the separate purpose of gravel extraction. If the whole of the land was used or intended to be so used, the use at the relevant date would be the same even if later intensified; Norman v. Gosford Shire Council 31 LGRA 368. But, even if land was being used for a lawful "existing use", it does not follow that the whole of the land was also used or intended to be used for that purpose at that time. In each case it is necessary to identify the land used for that purpose; see Eaton & Sons Pty Limited v. Warringah Shire Council (1972) 129 CLR 271, at 281; Council of the City of Sydney v Royal Agricultural Society of N.S.W. Land & Environment Court, 28th November, 1985 (unreported). Actual physical use of the whole of the land was not essential to proof of its use for the existing use as at the relevant date; Parramatta City Council v. Brickworks Ltd (1972) 128 CLR 1; Eaton (supra). The resp
ondents claim that the right to extract applies to the entire 1,800 acres acquired by Mr Mawson by contract prior to 1949. The coal mine was confined to an area of approximately 300 acres. The 1,800 acres was largely unfenced, held in a number of portions severed by roads and partly used for horticulture. The topography varied dramatically, and ranged from steep to undulating. It had a variety of vegetative cover including remnant forest, coastal heaths and woodlands. I am satisfied that the gravel source was not common to the whole of the land and its use and intention to use any of it was confined by factors such as location, quality, access, topography and geology. In my judgment, the only part of the land used or intended to be used for any extraction of gravel prior to 10th March, 1949 was that part of area "A" referred to earlier.
In my opinion, Norman (supra) also is no authority for the proposition that, until controlled by legislation, in all cases each "existing use" of the land was entitled to be intensified or enlarged until it became a use of the entire property. Nor, in my opinion, do the observations of Glass J. in Lane Cove Municipal Council v. Lujeta Pty Ltd (1986 58 LGRA 157) suggest that Norman's case is authority for an existing use of part of land without consent to intensify and subsume the whole. Norman's case was merely a determination of an appeal on particular matters of fact, and in that regard cannot be elevated to the principle of law suggested by the respondents.
Norman used land for the winning of topsoil and filling material. The activity was expanded from a small way to a use of all of the land until it had |CF2.|PSI"the appearance of a quarry"|CF1.|PSO. But the primary judge had held that there was an "existing use" at the relevant date of |CF2.|PSI"the business of selling of soil and filling from the land to customers on a fairly regular basis"|CF1.|PSO, and that as a consequence of intensification there had been a change in such use. The finding of the High Court was that:|CF2.|PSI
"...the ultimate conclusion reached by the primary judge cannot be sustained in the light of the specific findings of fact which he made."|CF1.|PSO (p.370)
The relevant finding of fact in Norman was, inter alia:|CF2.|PSI
"...that the appellant had an intention to use the whole of the land for the purpose in question, removal of topsoil and filling, and concluded that in the circumstances of the case the land should be regarded in its entirety."|CF1.|PSO (p.371, emphasis added)
I respectfully adopt the observation of the Court in Tainui (supra) that (p.29):|CF2.|PSI
"There is, however, a very obvious distinction between that case and the present case. There was no ambiguity in Norman's case as to the use of the land. It was clear at all times what that use was. In the present case to submit that the nature of the use immediately prior to 19 January, 1979 was the sale of petrol, begs the question because, on the evidence, that may not be an appropriate, or one appropriate, categorisation of the nature of the use at that time."|CF1.|PSO
In my opinion, a careful reading of Norman's case restates the findings in Eaton's case (supra), and clearly demonstrates that the right to use the whole of the property for an existing use depended upon such identification of it as being the land to which that use attached, or an intention to do so was established at the relevant date.
In this matter I am not satisfied that I should make a finding of fact similar to that made by the primary Judge in Norman. For the above reasons, I do not accept that as at 10th March, 1949 any person used or had an intention to use the whole of the subject land for gravel extraction. I am not even persuaded that there was such intention with respect to coal mining purposes. It follows that I am satisfied that the continued use of any part of the subject land for the extraction of gravel or filling is in breach of the provisions of the E.P.& A. Act.
Notwithstanding the breach of the environmental law, the respondents submit that the Court should exercise its discretion to refuse the orders sought. These proceedings concern the enforcement of the provisions of the E.P.& A. Act and an environmental planning instrument. This breach of public law is not merely the failure to obtain an appropriate consent for such use, but involves the carrying out of a use which was absolutely prohibited on most of the land. The legislature has by such instrument expressed itself on the public interest with respect to the appropriate nature and type of uses permissible thereon. Pursuant to the provisions of s.124, the Court may make such order "as it thinks fit". When such a breach of the public law has occurred, and the continued breach thereof is threatened, a successful applicant is usually entitled to an injunction to remedy or restrain such breach. However, the making of such order is subject to the exercise of the Court's discretion and that discretion is a wide one. T
he nature and extent of that discretion has been considered and its application explained in ACR Trading Pty Ltd and Anor v. Fat-sel Pty Ltd and Anor (1987) 11 NSWLR 67; Sedevcic (supra).
That wide discretion is not to be given an unduly restrictive operation and has been described as being just as much a part of the structure and scheme of the E.P.& A. Act for the enforcement of planning laws as are the other parts. It permits, in appropriate case, refusal of injunctive relief where to grant it would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation; cf. Strathfield Municipal Council v. Alpha Plastics Pty Limited and Ors (1988) 66 LGRA 124.
The respondents submit:
a) The breaches of the instrument are "technical".
b) That no serious damage is being caused to the land.
c) The law in relation to the breach is very complex and it was difficult to discern whether there had been a breach.
d) There was no wilful intent to breach the provisions of an environmental planning instrument.
e) The Council, as the consent authority, has been aware for many years of the activities, the removal of trees and the claim for existing use rights.
f) Quarry known as "A" was adjacent to the Council's own quarry and Council must have been aware of its existence. There is some evidence that the Council purchased material from the subject land.
g) There has been no complaint made to the Council, or any other statutory authority, in the forty years that there has been a use of the land for the prohibited purposes.
h) The consent authority only took these proceedings when virtually forced by Anson Bay.
i) If forced to close, the respondents will suffer financial hardship and might lose customers. The present operator purchased the land only after inspecting Council correspondence. $132,000 was paid for the right to extract.
j) The respondents entered into a license agreement to carry out extraction on the land because Anson Bay asserted that existing use rights attach to the land.
k) The license agreement has not been determined.
As a consequence of the nature of the orders that I propose to make, it is not necessary or appropriate that the Court determine every matter in issue. Unless central to the resolution of a dispute in connection with an environmental law, or necessary for the proper exercise of discretion, this Court should consider carefully whether it is appropriate to embark upon such questions as the proper determination of the license agreement and breaches thereof. S.22 of the Land and Environment Court Act entitles the Court to investigate such matters for ancillary purposes, but there is also considerable doubt as to the power to make declaratory orders with respect thereto; see Bob Blackmore (Blakemore) Pty Limited and Anor v. The Anson Bay Company (Australia) Pty Limited, Court of Appeal, 18th April, 1989 (unreported). However, for the purpose of the exercise of my discretion I have given consideration to all of the above matters.
There also can be no doubt that until controlled by its present shareholders, Anson Bay promoted the use of its land for an extractive industry. Indeed, Anson Bay entered into the agreement to license on the premise that the land could be used for the existing use. The conduct of Anson Bay and the collateral dispute inter parties does not, in my opinion, prejudice the application for similar orders by the consent authority. That body is charged with the public duty of the enforcement of the provisions of the E.P.& A. Act, and the control of the use of land. So far as the present shareholders of the respondents are concerned, I am not satisfied that they purchased an interest in the belief that the Council had recognised or held out that existing use rights attached to the land. Even if it did, in my opinion no estoppel arises from the Council's behaviour, or its awareness of that use of part of the land since at least 1986. I am not persuaded that the Council's conduct or delay disentitles it to the orders so
ught.
I do not accept that the breach of the public law is merely technical and one which would be unnoticeable |CF2.|PSI"other than to a person well versed in the relevant law"|CF1.|PSO. However, the length of the hearing and the nature and volume of technical and historical material, and the depth of legal argument necessary for the determination of the matter, makes it quite obvious that it was an open question whether there was likely to be a breach of the environmental planning instrument by the continuation of quarrying activities. The use has continued unchallenged by the owner or Council for many years, notwithstanding that there has been complaint and adverse representations concerning such use.
Whilst the winning of extractive material relates to a significant natural resource which, in appropriate circumstances, should be available for use in the public interest, that factor must also be weighed against other relevant matters such as the likely adverse environmental impact of extraction. Substantial evidence was called as to the existing and likely future damage to the environment if the subject use continues. It involves a large area, i.e. 720ha (1,800 acres) and, notwithstanding past operations on part thereof, most of it continues to be environmentally
significant coastal land. Experts allege erosion, siltation of water courses, destruction of flora, damage to rainforests and increased adverse visual impact. To continue extraction uncontrolled on this land will, in my opinion, result in the destruction of the character of the land and its present environment. If the whole or a significant part of the 720ha was used for an extractive industry, it is inevitable that the impact on the environment would be substantial, if not catastrophic. I am also persuaded that, unless terminated or at least substantially restricted in time or location and extent, the continued use of the subject premises for the quarrying of gravel will not only prejudice but probably frustrate the implementation of the recent Lake Macquarie Local Environment Plan 1984 Amendment No.16.
I have no hesitation in making orders which prohibit henceforth the use of the land, with the exception of some limited use of part of the area described as "A", for the purpose of the extraction of gravel or any other material. I can see no justification for the exercise of discretion which would result in the destruction of this large area of environmentally significant land. However, I do not believe in the circumstances that the same conclusions apply to the north-western side of the scenic drive in the vicinity of the area described as "A". Owing to its topography and location, the impact is confined and to a large extent hidden from public view. That land is adjacent to the Council's quarry and, subject to adequate controls, could in my opinion be satisfactorily worked with appropriate plant for a substantial period of time without unacceptable impact.
At one time, notwithstanding possible breaches of the license agreement, Anson Bay appeared willing, on appropriate terms, for part of land in the vicinity of area described as "A" to be used for a limited period for an extractive industry. I infer that such use would not prejudice the proposed "staged" development of the balance of the land. On the findings of this Court, the Council now cannot grant a consent under the environmental planning instrument. The Council submits that the Court has no material before it from which it could, in the exercise of its discretion, condition an order so as to prevent harm to the environment by the continued use of even that discrete area.
There would normally be great force in this submission. In ordinary circumstances I would be reluctant to exercise discretion and make a conditional order which would take the appearance of a development consent. This Court has no machinery for the monitoring of compliance with orders in the nature of injunctions, and enforcement is intended to be only by way of contempt proceedings.
However, in all the circumstances I am of the opinion that this is an appropriate case to make declarations only with respect to the lawfulness of the use of the whole of the land for the extraction of gravel or other material, and to make orders restraining such use, but suspend operation thereof to enable continued extraction in an identified part of area "A" for a limited period and subject to appropriate conditions. I am confident that to assist the Court this Council would draft such conditions and monitor compliance therewith during the period of suspension.
I stand over the making of those orders to give the parties the opportunity to bring in Short Minutes to give effect to these reasons for judgment. Exhibits may be released.
0
3
2