Wingecarribee Shire Council v Concrite Quarries Pty Ltd

[2001] NSWLEC 97

Reported Decision: 114 LGERA 82

Land and Environment Court

of New South Wales

CITATION:	Wingecarribee Shire Council v Concrite Quarries Pty Ltd [2001] NSWLEC 97
PARTIES:	APPLICANT: Wingecarribee Shire Council RESPONDENT: Concrite Quarries Pty Limited ACN 002 232 859
FILE NUMBER(S):	40196 of 2000
CORAM:	Lloyd J
KEY ISSUES:	Estoppel :- whether capable of founding a declaration that a development consent has expired - representations of opinion rather than fact - no reliance -elements of estoppel not made out Practice & Procedure: - the slip rule - delay in bringing application - respondent has acted in reliance on the orders as made - no error shown
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Rules 1996 Pt 10 r 7
CASES CITED:	Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568; Commonwealth v Verwayen (1990) 170 CLR 394; Concrite Quarries Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97; DTR Securities Pty Ltd v Sutherland Shire Council (1993) 79 LGERA 88; Foran v Wight (1989) 168 CLR 385; House of Peace v Blacktown City Council (2000) 48 NSWLR 498; Nelson v Ballina Shire Council (1993) 80 LGERA 271; Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No. 2] (1993) 78 LGERA 404; Vanden Pty Ltd v Blue Mountains City Council (1992) 77 LGRA 16; Walton Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387; Winn v Director General of National Parks and Wildlife [2001] NSWCA 17
DATES OF HEARING:	23/02/2001
DATE OF JUDGMENT:	05/18/2001
LEGAL REPRESENTATIVES:	APPLICANT: Mr J A Ayling (Barrister) SOLICITORS: B Bilinsky & Co RESPONDENT: Mr J F Whitehouse (Solicitor) SOLICITORS: Minter Ellison

JUDGMENT:

1

IN THE LAND AND Matter No. 40196 of 2000

ENVIRONMENT COURT Coram: Lloyd J

OF NEW SOUTH WALES Decision date: 18 May 2001

Wingecarribee Shire Council

Applicant

v

Concrite Quarries Pty Ltd

ACN 002 232 859

Respondent

REASONS FOR JUDGMENT

1. The respondent, Concrite Quarries Pty Ltd, operates a hard rock quarry on land at Exeter known as Lot 2 in Deposited Plan No. 537292 and Part Portion 102, Parish of Sutton Forest. The applicant, Wingecarribee Shire Council (“the council”) wants to stop the respondent from operating the quarry. The council seeks a declaration that a development consent which it had granted on 21 December 1993 for a hard rock quarry on the respondent’s land has expired; that no consent exists to enable the respondent to carry on further quarrying on the land; and the area of land the subject of the consent does not extend beyond the boundary of the area delineated by the respondent in its application to modify the consent. It also seeks an injunction to permanently restrain the respondent from carrying out quarrying on the land. The respondent, on the other hand, contends that it is operating the quarry pursuant to a lawful development consent granted by the council.

The facts

2. On 21 December 1993 the council granted development consent to Southern Highlands Quarries Pty Ltd (a predecessor of the respondent) to extract basalt from an area, known as the Novak extraction area, which represented a significant extension to an existing quarry for which development consent had been granted in 1985. The development application was accompanied by an environmental impact statement which defined the physical location and extent of the proposed works. According to its terms, the 1993 consent was for a period of thirteen years from the date of commencement of quarrying, the effect of which is that the consent is due to expire in December 2006.

3. Quarrying proceeded for a period of about six years. On 12 November 1999 the respondent made an application to the council to modify the 1993 consent. The modification sought was to extend the quarry into an area of 5,450 square metres adjoining the northern side of the area previously approved for extraction, so as to extract approximately 100,000 tonnes therefrom over a period of six months. The council did not determine the application for modification and the respondent appealed to the Court against the failure of the council to do so. The appeal was heard by me over three days from 2 May to 4 May 2000. On the latter date I delivered an extempore judgment in which I allowed the appeal and made an order modifying the development consent accordingly.

4. The application for modification was accompanied by a statement of environmental effects which explained the need for the extension. It stated that basalt reserves within the existing approved extraction area were nearing exhaustion and that extractive operations had prematurely reached the limit of the approved extraction area. It stated that the resource within the approved extraction area would be depleted prior to the time at which it had been predicted that basalt would be available from a new quarry to be opened nearby. It stated that the application was to obtain interim supplies to sustain Concrite’s operations and that if it was unable to access this resource the quarry would close and the existing employees would be retrenched. It stated that there would be losses of $8.0 to $8.5 million in business turnover, of $2.5 to $2.9 million in wages and of 54 to 67 jobs.

5. The evidence which was put in support of the application in Court was to a similar effect. It was said that the modification was necessary to allow quarrying operations to continue for another four to five months, pending the outcome of a Commission of Inquiry regarding the proposed new quarry nearby. It was asserted that geological investigations had shown that basalt within the existing approved area would be depleted “within a couple of months”. The consequent cessation of extractive operations would lead to a loss in business turnover and a loss of jobs, described above.

6. In my judgment, delivered extempore on 4 May 2000, I accepted the statements that the basalt resource within the approved extraction area was almost exhausted. I noted that the purpose of the application for modification of the consent was to enable Concrite to obtain supplies of basalt on an interim basis so as to sustain operations until the determination of the application to open the new quarry nearby.

7. It now appears, however, that the basalt resource within the approved extraction area was not exhausted. On 27 September 2000 the respondent sent a letter to the council stating its intention to extract further basalt along the southern face of the quarry within the extraction area approved in 1993. The respondent stated that extraction would be fully within the approved area described in the environmental impact statement and in compliance with the 1993 consent. This would require the removal of a temporary bund wall which had been constructed along the southern boundary of the extraction area. The respondent’s surveyor had stated, and the council accepts, that the temporary bund wall was constructed inside the perimeter of the approved area for extraction. By removing the bund wall the respondent can gain access to more basalt underneath it. In a further letter to the council dated 19 October 2000 the respondent stated that although it was unable to precisely indicate the quantity of basalt under the bund, it would appear to provide for ongoing employment for a reduced number of its workforce at least well into 2001 (although on a very reduced sales and production basis).

8. It is these “new” works, which are within the approved extraction area under the existing development consent of 21 December 1993, which the applicant council in the present proceedings now wants stopped. The council claims that the respondent is estopped from denying that the basalt in the approved extraction area is exhausted because of its prior conduct in leading both the council and the Court to believe that the resource would be wholly depleted by about May 2000, upon which belief both the council and the Court allegedly relied to their detriment in considering the application for modification. The council alternatively claims that the respondent is estopped from asserting that it is entitled to extract material beyond the area which it had marked out pursuant to the 1993 consent.

9. The council also claims that the respondent’s 1993 consent has expired because the six months time limit on extraction from the additional area to which the modification applies was intended to apply to the original consent as well; and that a condition to this effect was omitted from the Court’s formal orders by a clerical error or slip (which should be corrected).

Estoppel

The Council’s submissions

10. Mr J A Ayling, appearing for the council, submits that the respondent made representations to both the council and to the Court on the application for modification of the 1993 consent to the effect that the basalt resource was almost exhausted. The respondent’s decision to now resume quarrying in the area covered by the 1993 consent is inconsistent with those representations. Both the council and the Court were actively misled by the respondent. The representations made by the respondent on its application for modification raise an estoppel by conduct or by representation against it which prevents it from departing from the statements made to support and justify the application for modification.

11. Mr Ayling submits that there is no relevant distinction between the representations made to the council and the representations made to the Court. As I understand the submission, it is irrelevant that the council failed to determine the development application: although the representations were made to the Court, the council can nevertheless claim the benefit of the estoppel. Both the council and the Court were, at different times, exercising the same function: that of the consent authority under the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Mr Ayling relies upon the remarks of Deane J in The Commonwealth v Verwayen (1990) 170 CLR 394 at 444 to the effect that the benefit or burden of an estoppel extends “beyond the immediate parties to it, to their privies, whether by blood, by estate or by contract”. Mr Ayling submits that the Court’s reliance on the representation is to be treated as the council’s reliance because “there is the clearest and closest kind of privity of interest between the two embodiments of the consent authority, each of which exercises the other's power and authority in accordance with the terms of the [EP& A] Act”.

12. Mr Ayling accepts the concept of detriment as central to the doctrine of estoppel. In his submission the detriment suffered by the council is of three kinds. The first is the financial loss arising from the expenditure incurred in processing and dealing with the modification application and of participation in the appeal before the court. It is submitted that this expenditure flowed from the representation because the rationale upon which the application was made was the imminent exhaustion of the resource within the approved area of extraction.

13. The second kind of detriment is said to be a loss of the capacity to insist upon compliance with the terms of the 1993 consent because, had the assumed facts obtained, exhaustion of the resource would have put an end to extraction and to the associated environmental consequences; and the respondent would have been required to undertake the work of rehabilitation.

14. The third kind of detriment, as I understand the submission, is an injury to the public interest of which the council is custodian, guardian or steward. That public interest is suffering through the adverse environmental impacts associated with the extended area of extraction. (It seems to me, however, that there is little or no difference in substance between the second and third kinds of detriment suggested by Mr Ayling.)

15. I note at this stage that one of the declarations sought by the council necessarily includes a finding that the respondent’s present quarrying operations extend beyond the boundary of the extraction area described in the 1993 consent, as surveyed in accordance with that consent, which boundary was described and delineated by the respondent and subsequently accepted and relied upon by the Court in granting the modification application. I note, however, that Mr Ayling does not in his submissions now assert that the respondent is conducting quarrying operations outside the boundary of the 1993 consent as surveyed in accordance with that consent.

The respondent’s submissions

16. Mr J F Whitehouse, appearing for the respondent, submits that no estoppel could arise or has arisen in the present circumstances. He submits that there is no precedent for restraining a person having the benefit of a development consent from implementing the consent on the grounds that he is estopped from so dealing. Neither is there a precedent for holding an applicant for consent to submissions made to the consent authority once a development consent is granted. The appropriate course for a consent authority to follow in seeking to hold an applicant for development consent to the content of submissions made in support of the application is to incorporate them in conditions of consent.

17. Mr Whitehouse submits that to find an estoppel in such a case would be to defeat the nature of a development consent as a document which operates in rem and which is to be construed as the unilateral act of the consent authority, rather than the result of an agreement between the parties, especially as it may be implemented by subsequent owners and occupiers of the land. It would indirectly permit the construction of a consent to be influenced by reference to extrinsic materials, whereas it is a settled principle that a consent is to be construed without reference to extrinsic materials, except where this is necessary to identify a thing or place referred to in the consent or where documents are incorporated expressly or by necessary implication. (Mr Whitehouse relies in this context on Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17 at 199 and on Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 323.)

18. Mr Whitehouse also submits that as planning law is a creature of statute, principles derived from private law such as estoppel are not to be imported into it, in support of which proposition he cites Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [1985] 1 AC 132 at 140-141, [1984] 3 WLR 32.

19. Mr Whitehouse submits that in any event the elements of estoppel are not made out in this case. Firstly, he submits that the legal relationship between the parties was not such that the respondent was bound to act in accordance with any representation which it made. Secondly, he submits that the imminent exhaustion of the basalt resource was not the reason for the modification application but merely the rationale for that application. Thirdly, he submits that there is no evidence that the council in any way altered its position on the basis of the alleged representation. If the court relied on the representation, he argues that the council cannot take the benefit of that, because there is no relationship by “blood, estate or contract” between these entities; and that in any case such a relationship has only ever been held to found an estoppel in cases of issue estoppel. He further argues that there is insufficient evidence to show that the court acted on the representation: the judgment indicated that the modification was granted because there were no considerations justifying refusal, rather than on the ground of the alleged representation. Neither is there evidence that the council suffered any detriment as a result of the representations.

20. Finally, Mr Whitehouse submits that the respondent’s actions are not unconscionable because in the context of a merit appeal it would be unreasonable for the council to act (if it can be shown to have so acted) on a representation made as to the rationale of the application.

Conclusions

21. It is settled law that the development consent of 1993 upon which the respondent relies operates in rem. The nature of a determination which operates in rem is explained in Spencer Bower and Turner: Res Judicata, 2nd ed (1969) at 213:

[A decision in rem] is one which declares, defines, or otherwise determines the status of a person, or of a thing, that is to say, the jural relation of the person, or thing, to the world generally, and therefore is conclusive for, or against, everybody, as distinct from those decisions which purport to determine the jural relation of the parties only to one another, and their personal rights and equities inter se, and which, therefore, are commonly termed decisions in personam.

22. In House of Peace v Bankstown City Council (2000) 48 NSWLR 498, Mason P (with whom Stein and Giles JJA agreed) said (at 504):

[22] This dispute arises in a context, planning law. Several matters follow. Planning law “is concerned with the use of land - not with the identity of the user”: per Cripps J in Moslem Alawy Society Ltd v Canterbury Municipal Council (1983) 51 LGRA 79 at 82. ...

[23] Emphasis upon the use as distinct from the person using the land reminds that a consent operates in rem. In an oft-cited dictum, Else-Mitchell J described a development consent as “not personal to the applicant but enur [ing] for the benefit of subsequent owners and occupiers, and in some respects... equivalent to a document of title” : Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 324. In Eaton & Sons Pty Ltd v Warringah Shire Council (1972) 129 CLR 270 at 293 , Stephen J described a consent as “essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor”.

23. In Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council [No 2] (1993) 78 LGERA 404, Handley JA (with whom Cripps and Clarke JJA agreed) said (at 407):

As a general rule development consents, being public documents operating in rem for the benefit of successors in title, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it: see Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50; see also Wyre Forest District Council v Secretary of State for Environment [[1990] 2 AC 357] (at 370-371). However reference may properly be made to documents incorporated expressly or by implication into the consent.

24. The proposition that an estoppel may arise to defeat the operation of a development consent would appear to be contrary to the concept of such a determination operating in rem. There is no authority, however, to suggest that the principles of estoppel cannot apply to a determination which operates in rem. In Pioneer Aggregates, upon which Mr Whitehouse relies, the House of Lords held that a planning consent for a quarry enured for the benefit of the land and all persons for the time being interested in it; and it followed that a valid consent capable of being implemented according to its terms could not be abandoned by an owner or occupier because a subsequent owner could come in and, in reliance upon the consent, resume quarrying. That is not the situation in the present case, although it does suggest that the conduct of an owner or occupier is irrelevant when considering the effect of a determination which operates in rem, which determination must operate according to its terms.

25. In Vanden Pty Ltd v Blue Mountains City Council (1992) 77 LGRA 16, Bannon J held that a council was estopped from asserting that a letter, issued under the hand of its town clerk and city manager purporting to grant development consent and subdivision approval for a subdivision of land, was not a development consent and subdivision approval. In so holding Bannon J (at 19) referred to the judgment of Windeyer J in Brickworks Ltd v Warringah Shire Council (1963) 108 CLR 568 at 577 and the words that he used there:

The Council said that it had consented. Until it spoke by the mouth of its lawyers it never said otherwise. But if, notwithstanding this, it can somehow be said that it did not in fact consent, then an estoppel seems to me to arise.

26. In DTR Securities Pty Ltd v Sutherland Shire Council (1993) 79 LGERA 88, Talbot J held that a developer was estopped from denying that a certain condition of a development consent was validly imposed, since the condition had been part of an agreement between the developer and the council for the rezoning of the land in question so as to permit the development .

27. In Nelson v Ballina Shire Council (1993) 80 LGERA 271, a council had granted consent for a subdivision of land subject to a condition that the applicant meet the cost of upgrading a public road leading to the subdivision, as agreed to in correspondence passing between the council and the developer. Pursuant to such agreement the developer provided a bond for the sum of $32,000 which was cashed in by the council. After referring to Sydney Serviced Apartments, Bignold J held that the correspondence was expressly incorporated into the terms of the consent. However, in obiter, his Honour was also of the opinion that the council, having accepted a contribution of $32,000 from the developer towards the cost of improving a public road leading to a subdivision, was estopped by convention from denying that the effect of the condition was otherwise than as agreed to by the parties; that an obligation was imposed on the council to upgrade the road once it had received the money. Although the views of Bignold J were obiter, his Honour accepted the principle that one party could be estopped from denying that it had assumed certain obligations under a development consent which were contained in correspondence which led to the granting of that consent.

28. None of these decisions are directly relevant to the present case. In each of them, the conduct of a party leading to the creation of a consent was found to prevent that party (and that party only) from denying it had assumed certain obligations or granted certain rights to another party under that consent. In none of those decisions was this estoppel said to lead to change in the consent itself which could justify a declaration, as is being sought here, that the terms of the consent where otherwise than as explicitly expressed or explicitly incorporated in the consent document. In this respect, the present case is more analogous to the case of Pioneer Aggregates, where the Court rejected the contention of the consent authority that the conduct of the holder of the consent could lead to a change in the effect of the consent itself. That case, however, was not an estoppel case.

29. The council’s claim in the present case is a novel one. It claims that the respondent is bound by principles of estoppel which result in an entitlement on the council’s part to have declarations made limiting the operation of the development consent, such development consent being a public document which, as I have observed, operates in rem for the benefit of parties other than the original applicant. In seeking the declaration which it claims, the council council seels relief which has consequences which go beyond the personal entitlements of the respondent.

30. I do not find it necessary to decide the question of whether declarations could be made upon such a basis. I am not satisfied, in any event, that the necessary elements of an estoppel are present in this case. I have come to this view for reasons which I shall now describe.

31. In Waltons Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387 at 413 it was held that estoppel could prevent a party “from asserting the existence of a different state of affairs as the foundation of [the] respective rights and liabilities” of itself and the party to whom the relevant representation was made. The respondent is not, in the present proceedings, either asserting or denying the presence of basalt remaining within the area approved for extraction as the foundation of its legal rights. It is simply asserting what is incontrovertible, namely, that it has a consent to quarry the approved area. It so happens that if the basalt were to be exhausted the respondent would as a practical consequence have to stop mining; and once it had stopped mining it would be obliged to rehabilitate; but the existence of the basalt in no sense needs to be asserted in order to found the respondent’s rights.

32. The respective rights and liabilities of the council and the respondent rest not upon the existence of the resource, but upon the existence of a development consent which allows the respondent, subject to certain conditions, to extract basalt from the approved area. Whilst this state of affairs obtains the respondent is entitled to extract as much basalt as it finds in that area and it need assert nothing more than that it has a development consent authorising it to do so.

33. It would be a different matter if the respondent had asserted that it was not entitled to extract basalt from the area from which it is presently extracting and therefore needed a modification of the consent for an extension of the approved quarry. It might then be prevented from asserting subsequently that it did have a right to mine the area from which it is presently extracting. But having merely asserted the physical inadequacy of the resource within the approved area, it would be absurd to force it to pretend that the resource which is now shown to exist was not there.

34. The representations which are said to found the estoppel in this case are contained in an affidavit of Ms V Smith which contains the following statement: “geological investigations commissioned on behalf of the applicant have revealed that the basalt resource within the extraction area approved under the development consent is nearing exhaustion and will be depleted within a couple of months”; and also contained in the statement of environmental effects which accompanied the 1999 application for modification, which contains a statement: “the resource within the approved extraction area will be depleted prior to the time at which it is predicted basalt would be available under an approval to extract from the area north-east of Rockleigh Road.”

35. An estoppel can be founded on a representation of fact or law, present or future (The Commonwealth v Verwayen (1990) 170 CLR 394). The relevant representations are to be distinguished, however, from mere statements of opinion:

...a representation of future fact and representation of law will often, upon analysis, involve no more, for the purposes of the doctrine of estoppel by conduct, than a representation of present opinion. In a case where that is so, any estoppel founded upon the representation will ordinarily be of no use to representee since it will extend no further than precluding a denial that the represented opinion was truly held. (Foran v Wight (1989)168 CLR 385 at 436.)

36. The representations relied upon by the council and which are said to have given rise to the assumption that the basalt would be exhausted within a certain number of months are not statements of fact, such as “x amount of basalt remains”, or statements of intention such as “Concrite will cease mining basalt in x months”. The question of when the basalt will be depleted depends upon some objective and some subjective criteria, which include the precise amount of basalt available, the logistical problems in extracting it and the rate at which the respondent decides to extract it, which may in turn be influenced by external economic factors. In the light of these complexities it is not surprising that both Ms Smith and the consultants who prepared the statement of environmental effects in support of the application for modification gave an imprecise indication of when exhaustion of the resource was likely to occur. Had the rate of exhaustion been as pivotal to the application for modification as the council suggests, the respondent would be no doubt have been required to substantiate its predictions with more specific evidence from its officers or experts. Since none of this occurred it is proper to draw the inference that these statement were regarded by all concerned as mere expressions of opinion of what was likely to occur if the application for modification were not granted. It follows that these statements cannot ground an estoppel. Neither does it help the council if the respondent is unable to deny that it truly held the opinion, when the statements were made, that the resource was likely to be exhausted within a few months.

37. Whatever might be said of the respondent’s assertions, the council obviously placed no reliance on them as it did not determine the application. Moreover, the council did not alter its position as a result of the respondent’s assertions. The council did not act or abstain from acting in reliance on the statements made by or on behalf of the respondent. The council continued at all times to oppose the application for modification of the consent. It is self-evident that even if the representations had not been made the council would have opposed the application for modification of the consent. The representations did not cause the council to change its position.

38. Neither did the Court place reliance on respondent’s assertions. Although I adopted the assumption, as shown by my judgment, that the basalt resource within the approved extraction area was almost exhausted, I placed no reliance on that assumption in allowing the application for modification (Concrite Quarries Pty Ltd v Wingecrribee Shire Council [2000] NSWLEC 97). The imminent exhaustion of the resource was referred to in the context of the background to the appeal, as explaining why the modification was being sought, but I then went on to consider the merits of the case, notably that the modification would not result in any increase in the environmental impact of the total development compared with the approved development, that there would be no extension of the time for which the original consent runs, that the total volume of material to be extracted (including the material to be won from the additional area) would be less than the volume approved for extraction under the original development consent, there would be no adverse impact by way of noise; that the volume of traffic generated would be no greater than that generated by the original consent, and that there would be no adverse visual impact. It was as a result of these factors that I came to the conclusion that there was “no merit consideration which would justify a refusal of this application” (ibid, at par [9]).

39. Neither does it seem to me that any detriment was occasioned to the council. I need only refer to the merit considerations described above. Moreover, even if the application for modification had not been granted it would not have prevented the respondent from continuing its operations pursuant to the existing development consent until that consent expires in about December 2006.

40. Shortly stated, the council fails in its claim that the respondent is estopped by its conduct from carrying on its quarrying operations pursuant to the development consent granted on 21 December 1993. It fails because there was no representation (in the relevant sense), there was no reliance on the representation and no detriment has been occasioned. Although I recognise that the question of detriment remains arguably open, the absence of the other elements necessary to establish an estoppel is fatal to the council’s claim.

Expiry of the consent

41. I have noted in par [9] above, the council’s submission that the respondent’s 1993 consent has expired because a six-month time limit on extraction from the additional area the subject of the modification application before this Court was intended to apply to the original consent as well but was omitted from the Court’s formal orders by a clerical error or slip.

Submissions of the applicant

42. Mr Ayling submits that the orders signed by the Registrar do not reflect the orders actually pronounced by the Court in that the former do not refer to the conditions set out in Exhibit H, whereas in the latter the modification was granted subject to those conditions. Exhibit H sets out proposed conditions proffered by the council to be imposed on the granting of the application for modification. One of the conditions in Exhibit H includes the following:

2. This amended consent is limited to a maximum period of six (6) months from the date hereof or to such time as saleable material is extracted from a new quarry to be commenced on adjacent lands whichever is the earlier.

43. As an error may be rectified pursuant to the Land and Environment Court Rules, (“the Court Rules”) Part 10, rule 7(1) (“the slip rule”), Mr Ayling submits that the Court may proceed upon the basis that the slip may be and has been corrected.

44. According to Mr Ayling, correction of the slip would lead to a finding that the consent as a whole, not merely the modification granted by the Court, expired six months after the date of the order, so that the consent expired on 4 November 2000. In support of the submission that it was the Court’s intention that the duration of operations in both the existing and the modified consent would be limited to six months, Mr Ayling cites par [7] of the judgment:

[7] It is reasonably clear that the proposed modification will not result in any increase in the environmental impact of the total development compared with the approved development. There will be no extension of the time for which the consent runs. A condition proffered by the applicant as part of its application will limit the time to which the existing consent runs to a maximum period of six months, which is, of course, well short of the time for which the original development consent is operative .

45. Mr Ayling also relies on par [13] of the judgment:

[13] There being no merit considerations which lead to a refusal of the application, it follows, in my view, that the application must be granted; and it will be granted subject to the conditions set out in the draft conditions of consent proffered by the applicant and contained in Exhibit H. Those conditions include conditions limiting the consent to a maximum period of six months from the date hereof, limiting the production of saleable product to 100,000 tonnes of material from the area the subject of the modification and other conditions of a subsidiary nature.

46. Mr Ayling further submits that as a general proposition a modification of a consent does not create a new consent, rather the original consent continues in existence but subject to the change wrought by the amendment; therefore the modified consent to which Condition 2 of Exhibit H refers is the original consent, relating to quarrying in the original as well as the extended area to which the modification applies.

47. Mr Ayling concedes that the points of claim do not clearly raise this issue and seeks leave to amend the points of claim by inserting the following paragraph:

11A. The 1993 consent as amended by the Court’s orders of 4 May 2000 expired not later than 4 November 2000, being the date six months after the date of the orders.

Particulars
Condition 2 within Exhibit H limited the consent in terms.

48. It was submitted that such an amendment does not require a re-opening of the applicant’s case, as the point was raised at the hearing without objection and has been further addressed in written submissions filed and served subsequently; that the proposed amendment merely regularises what has already happened in the proceedings.

Since no additional evidence is required and because the respondent has had ample opportunity to deal with it in its written submissions, it is said that there can be no prejudice flowing from the grant of the leave sought.

49. Mr Ayling submits that to force the applicant to bring fresh proceedings to resolve this matter would be contrary to section 22 of the Land and Environment Court Act 1979 (“the Court Act”), which directs the Court to completely and finally determine all matters in controversy between the parties so as to avoid a multiplicity of proceedings.

Submissions of the respondent

50. Mr Whitehouse submits that the council cannot proceed on the basis that the orders have been amended because no proper application has been made by the council to re-open its case and amend its points of claim. If it sought to amend the order, the appropriate course, he submits, would have been for the council to file a notice of motion. Alternatively, he submits that the Court should not, in its discretion, allow the council to re-open its case and amend its points of claim or apply the slip rule.

51. Mr Whitehouse submits that there are no exceptional circumstances justifying the grant of the amendment sought; that the circumstances relating to the case have not changed; that the unexplained delay in bringing forward the point ought to count against the council; that the delay in bringing this new point forward should militate against allowing the amendment; and that it will have a negative impact on Court’s efficiency and case management.

52. Mr Whitehouse submits that the respondent will suffer prejudice because the proposed amendment substantially alters the basis upon which the council seeks declaratory and injunctive relief. The respondent will, therefore, be denied the opportunity to consider its prospects of a successful defence based on the newly-stated claim and will not have an adequate opportunity to respond in its points of defence or by way of evidence. The respondent is also prejudiced because it has now implemented the orders according to their terms by undertaking the quarrying operations.

53. Mr Whitehouse submits that if the Court is minded to allow the amendment to the applicant’s points of claim, there are two reasons why the Court should not, in the exercise of its discretion, amend the orders pursuant to the slip rule.

54. The first is the council’s delay in making the application. He points out that the orders were issued on 4 May 200 and that the council would have been aware since at least September 2000 that the respondent intended to continue quarrying in the area the subject of the original consent, but did not formally raise the question until it made its submissions in this matter. The second is the prejudice to the respondent described in par [52] above.

Conclusions

55. The making of an order under Part 10 rule 7 of the Court Rules is discretionary. In Shaddock & Associates Pty Ltd v Parramatta City Council [No. 2] (1982) 151 CLR 590, the High Court (Mason ACJ, Wilson and Deane JJ) said in relation the equivalent rule under the High Court Rules (at 597):

... an order under the slip rule is not available as a matter of course. There is a discretion in the court to refuse an order if something has intervened which would render it inexpedient or inequitable that it be made .... The general principle in support of finality in litigation together with the fact that a party against whom judgment in a money sum is entered is entitled to regard that judgment as finally determining the extent of his liability combine to stress the importance of prompt action under the slip rule.

56. Many of the conditions in Exhibit H are not intended to replace those of the original consent, but apply only to the modification. For example, Condition 1 requires the applicant to “retain the existing bund wall parallel to Rockleigh Road”. This condition could only apply to the modification. Condition 3 states: “[t]he production of saleable product shall not exceed 100,000 tonnes from the area the subject of this modification....” This condition by its terms could only apply to the area the subject of the modification. Condition 4 states: “[t]he extended quarrying operation shall comply with the requirements of all relevant Departments, Statutory Bodies and Authorities having power to control or regulate the quarry and the conditions attached to these licences issued by these agencies.”. This condition by its terms could only apply to the modification. Condition 5 states: “[n]o drilling, blasting or crushing of quarry material shall occur on the area the subject of this modification.” This condition by its terms could only apply to the area the subject of the modification. Condition 6 states: “[t]he area the subject of this modification shall not be used for the disposal of any waste products from any source or area other than soil rock or overburden.” Again this condition by its terms only applies to the modification. Condition 7 states: ‘[t]he environmental management and Site Rehabilitation Plan is amended by adding the annexed final landform plan. Trees of the same species as recommended for this modification shall be planted around the amended perimeter.” Again this condition by its terms only applies to the modification. Condition 8 applies a condition of the original consent to the modification: “[t]he contribution rate fixed by Condition No. 20A of the original consent DA001/93 shall apply to materials extracted from the area the subject of modification.” Condition 9 applies a condition of the original consent to the modification as well: “[t]he stockproof fence erected in compliance with Condition No.22 of original consent DA001/93 is to be altered to suit the conformation of the quarry flowing from the extraction of material from the area the subject to this modification.” Finally, Condition 10 applies the other condition of the original consent to the modification: “[t]he conditions of original consent DA001/93 dated 21 December 1993 as amended shall apply mutatis mutandis to the quarry operation authorised by this modification.”

57. The council thought it necessary to expressly apply, by Conditions 8, 9 and 10 above, conditions of the original consent to the modification. Presumably it must have thought that if it did not do so those conditions would not apply. Moreover, the other conditions proffered by the council, namely Conditions 1 to 7 inclusive, appear to me to only apply to the modification. Those conditions include Condition 2 which limits the amended consent to a period of six months. If it were intended to apply the same limit to the original consent, which otherwise expires in 2006, then one would have expected there to be a term limiting the application of the proffered Condition 10. That is to say, the proffered Condition 10 would or should have said something like: “except for [the condition which states that consent expires in 2006] the conditions of the original consent shall apply...”

58. The fact that Condition 10 proffered by the council reads as it does suggests that all the conditions of the original consent were intended to apply, including that which relates to the expiry of the consent. If there is any lack of clarity or certainty as to the meaning of the conditions then the council must take the consequences of any failure to specify accurately or in detail what it consented to as well as what conditions apply (Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 at 324).

59. Accordingly, in the exercise of the Court’s discretion, the council’s applications to amend its points of claim and to amend the Court’s orders are refused. They are refused for the following reasons: the council’s unexplained delay in seeking to invoke the rule; the prejudice caused by such delay to the respondent; the fact that the proffered condition 2, in particular, appears to be intended to apply only to the modification; and the express application of the conditions of the original consent to the modification (which includes the date of expiry of that consent).

Orders

60. It follows that the council’s application must be dismissed. It would also seem that there should be an order that the council pay the respondent’s costs. Since the parties did not argued the question of costs, however, I will reserve that question. The formal orders are as follows:

1. The application is dismissed.

2. The question of costs is reserved.