Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd

The Effect of Vacating the Hearing

1. The NOM seeks an effective "stay" of the proceedings until after the determination of the DA, but Council says that, in all the circumstances which I will briefly describe, such a "stay" would adjourn and delay the case indefinitely.
2. When the DA was lodged, it was envisaged by the respondents that it would be determined by the end of September 2017, but already that quite optimistic estimate has blown out to December 2017, or later (see Holloway affidavit 17 November 2016, par 34, and c.f. his affidavit 6 December 2016, par 18).
3. It is impossible to predict, with any certainty, when the DA will be determined, so the adjournment the respondents now seek for the proceedings is, in reality, "at large".
4. The Council strongly resists such an open-ended adjournment, and denies the adequacy of the operational restrictions the respondents are offering in the meantime.

Evidence

1. The Court was informed that all the evidence required for the hearing is already "on".
2. Both sides put before the Court, on this interlocutory application, extensive documentation, primarily included in a Court Book from the respondents ("RCB"), and a two-volume Court Book from the applicant Council ("ACB").
3. That material was augmented by four exhibits tendered separately by the respondents, as follows:

• Exhibit R1 - Most of the Exhibits to an affidavit of Darren Holloway dated 17 November 2016 (in the RCB), Holloway being the principal planner engaged by the respondents on their 2016 DA and EIS;
• Exhibit R2 - four volumes of EIS material prepared for the 2016 DA, and dated September 2016 (Exhibit "DH7" to the Holloway affidavit in Exhibit R1);
• Exhibit R3 - A deed of settlement entered between RailCorp and Council on 20 July 2010, following resolution of earlier Class 4 proceedings (40477 of 2009) between them, concerning the quarry; and
• Exhibit R4 - Copies of various documents filed in those earlier proceedings.

Relevant Background

1. The subject quarry commenced its history in 1914 or 1915, as a "NSW Railways" quarry, focussed squarely on the production of railway ballast. (The authorities and departments that have run the "NSW Railways" over those many years have had various names for various periods, but, for simplicity, I will use the name "NSW Rail".)
2. The quarry was augmented, with Council's consent, granted in March 1991, when the material available in the "old" quarry appeared to have been exhausted. Council granted consent for a "new" quarry to be developed adjacent to, and west of, the old site. Quarry operations were to be transferred from the "old" to the "new" site. An EIS was prepared for that "designated development".
3. The 1990 EIS and the Council's 1991 Notice of Determination of the 1990 DA were added to the front of Volume 1 of the ACB, and the Notice is also found at tab 14 of the RCB.
4. In that 1990 EIS, the objectives of the proposed development were stated to be (p7, s 1.3): 1] to establish a rail ballast quarry adjacent to the existing Martins Creek quarry, 2] to supply raw material for processing at the existing quarry plant, 3] to maintain the existing Martins Creek quarry infrastructure, 4] to ensure the supply of rail ballast for the safe and efficient operation of the rail system, 5] to carry out the development in an environmentally sensitive manner.
5. Only Lot 5 was to be quarried (p15, s 3.1), and that area and Lot 6 were to be linked to the "old" area by a haul road. Five hectares of the affected area was to be quarry, and 5 ha haul road (p5, s 1.2).
6. The development, it was said, "will not alter the existing situation save for location of raw material", and environmental impacts will be "minor", and mainly view-related (p26, s 6). The nearest residence was said to be 200m to the west.
7. Reserves at the "new" area were estimated to be 3.5 m tonnes, and annual production was proposed at 250,000 - 300,000 tonnes pa, of ballast material. Other outputs of the quarry were nominated (p17, s 3.3) as concrete aggregates, sealing aggregates, and road base.
8. It was specifically proposed that 70% of output would be removed from the site by rail, and that the remaining 30% would require an average of 24 truck movements (12 each way per day), carrying out an average load of 23 tonnes (see p19, s 3.9). Calculations were based on annual gross production of 265,000 tonnes. Road movements were to be mainly in the morning, and to the south. Traffic impacts would "not change from the existing situation, and [were] considered to be slight" (p21, s 4.7).
9. Operating hours were nominated as 7am - 5pm, Monday - Saturday (s 3.8.3), and operations, it was said, would generate only "minimal noise" (p21, s 4.5, and see pp44 - 50).
10. The DA was received by Council on 15 August 1990, and the Notice of Determination of the application was issued by Council to NSW Rail (then the State Rail Authority), on 7 March 1991. It referred to the approved development as "winning material primarily for railway ballast", and dated the consent from 12 February 1991.
11. Annexure "A" to the Notice of Determination provided space for NSW Rail to signify its acceptance of, and its agreement to abide by, the conditions Council purported to attach to the DC, but the evidence suggests that NSW Rail never signed that document, and it has also been suggested by the respondents that NSW Rail specifically rejected at least some of them. In any event, the respondents now challenge them.

1991 Consent Conditions

1. The Council's conditions of consent are set out in Annexure "B" (which, in the copy in the ACB, covers pages numbered 058 - 063). They include the following requirements:
2. "not to interfere with the amenity of the neighbourhood in respect of noise, vibration [etc.] ... or otherwise".
3. plans to be submitted for "full" rehabilitation.
4. tree planting and other visual amenity enhancements. 4 & 5. approvals to be obtained from the State Pollution Control Commission (predecessor of the EPA) and other public authorities.
5. "not ... more than 30% of the quarry products" to be transported by road, without a further specific approval from Council.
6. environmental effects to be monitored, so as to "ensure all environmental safeguards proposed for the development and required by this consent and other statutory approvals are enforced".
7. dust and noise off-site to be mitigated. 9 & 10. land and water management plans, and a "cumulative impact study" to be prepared.
8. contributions to be made for road.
9. notification of blasting events.
10. restrictions on blasting. 14 & 16. suppression of dust and noise.
11. operations to be limited to 7am - 5pm Monday - Saturday.
12. operations not to occur less than 20m from external site boundaries.
13. any disputes to be referred to the Director of Planning for resolution.
14. The respondents' senior manager Paul Walker insists that these conditions never took effect, as the railways did not accept them (RCB tab 12, pars 152 and 159 to 165, fols 223 - 225, and see [27]).
15. A major dispute in the present proceedings concerns twin questions of (a) whether conditions were actually imposed (or accepted) on the 1991 consent, and (b) whether the 1990 EIS was incorporated in the consent.
16. For the record, I also note here the grant of a further DC in 1999 in respect of a tertiary crushing plant on site, and the suggestion that Mitchell in 1995 achieved some modification of the 1991 consent (Walker, RCB tab 12, pars 171 - 181).

Post-1991 events

1. Quarry operations continually expanded over the years until the rail system's need for new ballast waned - only 32.4% of the quarry's output is now ballast (Exhibit R2, Vol 1, Appendix "B", p27) - and NSW Rail put the quarry up for sale in December 2009 (see Press Release dated 2 December 2009 in the affidavit of Oswald, 15 April 2010, included in Exhibit R4).
2. The respondents' solicitor undertook due diligence, and noted "significant risks associated with the planning approval basis" for the quarry.
3. In response to a request, in late November 2012, for some reassurance, those acting for NSW Rail said that NSW Rail was "selling to Daracon certain assets ... [and] not ... the business ... as a going concern", and that Daracon should make its own inquires (ACB, Vol 1, tab 4, fols 24 - 25).
4. At that time Council, despite being a customer of the quarry (Walker, RCB tab 12, pars 183 - 189), had Class 4 proceedings on foot against RailCorp, making many of the same complaints about the quarry as it does in the present proceedings (see pleadings and affidavit in Exhibit R4). Those proceedings were settled by deed, in view of the impending sale (Exhibit R3). The deed restricted production to 550,000 tonnes pa.
5. The second respondent ("Buttai") had had an operating agreement with NSW Rail, from about 2005, but, on 1 December 2012, the first respondent ("Hunter") leased the quarry lands from their private owners, one Noel Mitchell, and/or his company, Nodekeda Pty Ltd. Hunter engaged Buttai as the operator of the quarry. (The landowner(s) do not wish to take part in these proceedings. See particulars in RCB, tab 12, fol 204, pars 24 - 26, and fol 221, and see also ACB, tab 10, and tab 19, fols 585 - 588.)
6. Daracon has since made "significant investments" on the site, presumably in the expectation of maintaining the controversial high output volumes it has achieved (subs par 36).
7. At the same time, community concerns and complaints have increased.

The 2016 DA

1. I come, therefore, to the present DA lodged by the respondents, and to its relationship with the passage of these proceedings.
2. In June 2014, Buttai retained consultants to commence preparation of a State Significant DA.
3. On 31 July 2014 the respondents said they expected to lodge it "within six months".
4. On 16 September 2014, the Council resolved to commence (these) Class 4 proceedings against the respondents.
5. On 10 December 2014, the respondents estimated the DA would be lodged in April 2015.
6. On 21 May 2015 and 1 December 2015, they reported that "significant work" had been done.
7. The original "Secretary's Environmental Assessment Requirements" ("SEARS") were issued on 11 November 2014 (Exhibit R1, "DH2"), and these proceedings were commenced on 30 or 31 March 2015.
8. The SEARS have, in the meantime, been revised twice - on 22 May 2015 and 4 August 2016 (Exhibit R1, "DH4" and "DH5").
9. Council's solicitor (Robin Mallik), in his affidavit of 6 December 2016 (ACB Vol 2, tab 19), explains the Council's delay between its resolution on 16 September 2014 and the filing of the Class 4 summons (pars 4 to 27). He annexed relevant correspondence and other documents in support of his explanation (fols 564 - 600), subject to serious redaction.
10. The DA was lodged with the Minister for Planning on 27 September 2016 (Exhibit R1, "DH6").
11. The Commonwealth was not consulted on the DA until June 2016 (Exhibit R1, "DH9" and "DH10").

What is sought in the 2016 DA?

1. In their written submissions on the present application, counsel for the respondents say (par 9): The SSDA expressly seeks fresh approval for continuation of the Quarry's current operations. The SSDA also seeks approval for an increased rate of extraction, up to 1.5M tonnes of hard rock per annum, expanding into new extraction areas, extended operating hours and construction of a new access driveway to remove quarry traffic from Station Street.
2. Holloway deposes (affidavit 17 November 2016, in RCB, tab 8, fol 132 - 133, par 24): The Project as described in the SSDA consists of the following elements: a. extracting up to 1.5 million tonnes of hard rock material per annum; b. expanding into new extraction areas and clearing approx. 36.8ha existing vegetation; c. increasing the hours of operation for: i. quarrying from 6am-6pm Monday to Saturday; ii. processing from 6am-10pm Monday to Saturday; iii. mixing and binding from 4:30am-10pm Monday to Friday and 4:30am-6pm Saturday); iv. stockpiling, loading and dispatch of road transport to 5:30am-7pm Monday to Saturday; and v. train loading 24 hours per day, 7 days per week; d. consolidating existing operations and approval; e. construction of a new access driveway and bridge; and f. rehabilitating the site.
3. As stated on the Department's website (Exhibit R1, tab 6, p3/4), and in the "Referral of Proposed Action" to the Commonwealth (Exhibit R1, tab 9, p3): The proposal involves the staged extraction of 1.5 million tonnes of material per annum, comprising of andesite hard rock, expansion in to new extraction areas and the consolidation of existing operations and approvals.
4. As presented to a community meeting by the Department on 2 November 2016 (Exhibit R1, tab 10, Exhibit DH11, PowerPoint p5): The proposed development includes: • expanding the existing extraction area, including clearing 37.8 hectares of land; • extracting up to 1.5 million tonnes of hard rock material per annum; • increasing the hours of operation; • transporting processed material to market by road trucks and trains; • constructing a new access driveway and bridge; and • rehabilitating the site.
5. That PowerPoint presentation included also a slide (p21) which said: Proposed hours of operation: • extraction activities between 6 am and 6 pm Monday to Saturday (inclusive) • processing operations between 6 am and 10pm Monday to Saturday (inclusive) • product mixing and delivery preparation between 4:30 am and 10 pm Monday to Friday (inclusive) and 4:30 am and 6 pm on Saturday • stockpiling and loading trucks for dispatch between 5:30 am and 7 pm Monday to Saturday (inclusive) • train loading available 24 hours per day / 7 days per week Proposed mitigation measures: • construction of noise barriers to processing, haul road and stockpile areas and the rail siding; • engineering noise control treatments to plant and equipment; • relocation of maintenance functions on site; • cease use of the southern part of the site for stockpiling and ancillary operations; • new access driveway and haul route (via Dungog Road)
6. The DA documents were placed on public exhibition from 13 October to 24 November 2016, and the Department of Planning received more than 600 submissions, the majority opposed to the proposal.

Submissions and Comments on the 2016 DA

1. The EPA submitted its comments on the DA to the Department of Planning and Environment ("DPE") on 28 November 2016 (ACB, tab 1), saying (fols 1, and 3): Based on the information provided in the EIS the EPA is unable to provide recommended conditions for the proposal.
2. Detailed comments, and requests for further work and information, followed:

• The material on air quality does not appear to have been carried out in accordance with "approved methods" guidance provided, and so "does not adequately assess potential impacts to the air environment" (fol 1, and Attachment A, being fols4 - 5).
• Based on the acoustic and blasting impact assessments, "the EPA is unable to support the proposal and provide recommended noise conditions" (fol 2, and Attachment B, being fol 6).
• "The proposed amended hours of operations are a substantial variation, ... notably the quarrying operations in the western portion of the site would be permitted to commence earlier and go later .. [T]he EPA is currently unable to accurately predict the potential impact" of the proposed changes (fols 2 - 3).
• The report on "surface water quality" and associated matters is inadequate (fol 3), and its shortcomings are detailed (Attachment C, fol 7).

1. The Office of Environment and Heritage ("OEH") commented on the DA on 24 November 2016 (ACB, tab 2), in respect of "threatened biodiversity, Aboriginal cultural heritage, and flooding/floodplain management issues":

• The Biodiversity Assessment report "does not comply with" the relevant guidelines (see Attachment A at fols 3 to 5), and has other shortcomings (fol 9), which cannot be addressed until after the "Response to Submissions" phase of the assessment, and, therefore, outside "normal" timeframes (fol 9).
• OEH will also need to review the Commonwealth's response on biodiversity matters.
• OEH accepted that the EIS sufficiently addresses Aboriginal and flooding issues (fols 10 and 13).

1. On 2 December 2016, the DPE wrote to the Respondents' consultant (tab 3) in these terms: The public exhibition of the Environmental Impact Statement (EIS) for the Martins Creek Quarry Extension Project concluded on Thursday 24 November 2016. The Secretary requests that you prepare and submit a report that comprehensively addresses the submissions received on the project, as well as those raised in the community meeting held on 2 November 2016. A copy of the submissions received on the project and the Department's record of issues raised at the meeting can be viewed on the Department's website... In particular, the Department requests that you also consider and respond comprehensively to the comments set out in Attachment A, including requests for further information and/or revised impact assessments. The Department notes that submissions received from residents in local communities are particularly concerned about traffic and transport (including the volume and frequency of truck movements and road safety), noise, blasting and vibration impacts, and impacts to the heritage values, rural amenity and lifestyles of Martins Creek, Paterson and other towns and villages located along the proposed haul routes. Please note that the Department is expecting to receive comments from the Roads and Maritime Services and supplementary submissions from some members of the public, which will be forwarded to you as they are received. It is requested that these are also addressed in your response to submissions (RTS) report. The Department also notes submissions from other stakeholders, including employees and businesses that support the project on the basis of employment and economic benefits, significance of the resource and the importance of the quarry to Daracon and its operations. ...
2. Attachment A, to which the letter referred (fols 16 to 23), particularised a great deal of work and information DPE requires of the respondents. "Item 1" thereof (fol 16) should be included in these reasons, viz: The Department notes the EIS has adopted the 2014/15 annual production of around 900,000 tonnes per annum (tpa) for the purposes of assessing the proposed increase up to 1.5 Million tonnes per annum (Mtpa). This means that impact assessments have been undertaken for a proposed increase of around 600,000 tpa (eg. Table 2-7 in the Traffic Impact Assessment). The Department has received submissions from the community that raise concern with this approach, particularly in the context of the current proceedings brought by Dungog Shire Council (Council) in the Land and Environment Court of NSW. These submitters are concerned that the use of 2014/15 annual production data may not accurately characterise the existing consent limits that apply to the quarry operation. More specifically, Council in its submission on the EIS outlines a significantly smaller scale operation, which involves a maximum extraction rate of 300,000 tpa from Lot 5 DP242210, a processing limit of up to 449,000 tpa on Lot 1 DP 1006375 and a maximum of 30% (or around 80,000 tpa) allowed to be transported by road, with the remainder dispatched by rail. Council also disputes the use of processing equipment, existing use rights, land clearing and stockpiling described in the EIS (sections 2.5 - 2.9 inclusive and Appendix B). The Department notes and accepts that the EIS provides an assessment of a proposed increase of 600,000 tpa. However, in light of the uncertainty around the existing consent limits, the Department considers that additional impact assessments, which consider the environmental effects of a proposed increase in extraction of 900,000tpa and 1.2 Mtpa and corresponding increases in processing, stockpiling and dispatch are necessary in order to ensure a robust and reliable assessment and an approval which can withstand legal and other scrutiny. Please provide a comprehensive assessment of noise, dust, traffic and all other key impacts based on expansion of approved production by increments of both 900,000 tpa and 1.2 Mtpa.
3. The other major areas canvassed in Attachment A were (a) the inadequacies found in the Social Impact work (fols 16 - 17), (b) stakeholder consultation (fol 17), six major topics regarding traffic and transport (fols 18 - 19), (c) air quality (fols 19 - 20), (d) noise and blasting (fols 21 - 22), (e) historic heritage (fol 22), (f) water (fols 22 - 23), (g) rehabilitation and remediation (fol 23), and (h) dangerous goods (fol 23).
4. Some inconsistencies in the EIS were also identified; staging plans would need to be revised; and timings and interim measures also would need to be clarified (items 21 to 23, on fol 23).
5. Mr Howard argued that this letter has sent the respondents "back to the drawing boards".

The Substantive Proceedings

1. The pleadings upon which the parties presently rely in the substantive proceedings are:

• An amended summons, filed 3 July 2015;
• Amended Points of Claim ("APOC"), filed 3 July 2015;
• Amended Point of Defence ("APOD"), filed 9 June 2016; and
• Applicant's Reply to those Amended Points of Defence, filed 6 July 2016.

1. As the respondents point out, Council sought neither expedition of the case, nor any interlocutory orders (subs pars 4 and 22).
2. The first prayers pleaded by the applicant (pars 1 to 10) in the substantive proceedings assert that the 1991 consent places serious limitations on the use of the "new" site for the winning of only material primarily to be used for railway ballast, and then only to such use on only one of the lots (Lot 5) covered by the consent, and only to a certain depth, and a certain annual output.
3. Secondly, prayers 11 to 16 allege breaches of the consent's conditions, in respect of road transportation (percentage of output, and numbers of truck movements.
4. Thirdly, the Council alleges (prayers 17 to 24) an "enlargement, expansion or intensification" of a pre-1986 use, contrary to s 109(2) of the EPA Act, and the illegal development of extractive infrastructure, on the "old" quarry site.
5. Fourthly, the Council challenges the development of a manufactured sand processing plant, and associated mobile crushing plants, without consent (prayers 25 and 26).
6. Fifthly, the Council challenges a variation made by the EPA in April 2007 to the EPL held by Buttai (prayers 27 and 28).
7. That EPL envisages a much larger operation (500,000 to 2 million tonnes pa), and, therefore, many more truck movements (see Exhibit R2, Vol 2, Appendix "H"), than Council has ever sanctioned or is prepared to accept.
8. The respondents' written submissions summarise (par 10) the orders sought by the applicant Council as follows: a. orders preventing the second respondent from operating the Quarry otherwise than for the primary purpose of winning railway ballast; b. orders preventing any further lateral expansion of the Quarry; c. orders preventing the second respondent from transporting more than 30% of the Quarry's product by rail; d. orders preventing the extraction of more than 300,000 tonnes per annum; and e. orders preventing the use of specified areas of land for specified types of processing.
9. Virtually every salient issue raised by the applicant is the subject of heavy dispute on the respondents' part (see Tobin letter 19 December 2014, ACB tab 19, fols 589 - 590). Their counsel submits (par 11) that, if the DA is granted, there will no longer be any basis for making the orders Council seeks. Council's challenge to the EPL would also be so resolved (par 12, and s 89K).
10. On the other hand, it is argued that, if the substantive proceedings succeed, the relief sought by Council (respondents' subs, par 1) "would likely result in the closure of the Quarry".
11. Notably, the respondents rely on the terms of what was then s 91A of the EPA Act to negate the conditions argued by the applicant to attach to the 1991 DC. At the relevant time, the respondents submit that s 91A provided: Determination of development applications by Crown, etc. 91A. (1) A consent authority, in respect of a development application made by or on behalf of the Crown or a prescribed person - ... (b) shall not impose a condition of its consent except with the written approval of the Minister or the applicant. (2) If, on the expiration of the prescribed period after the date of the Minister's notification to a consent authority that - ... (b) the Minister does not approve the imposition of any condition of a consent to a development application. the consent authority has not determined the development application in accordance with the decision of the Minister, the consent authority shall be deemed to have granted unconditional consent to the development application.
12. They also plead "discretion".
13. The respondents now say, but the applicant denies, that "all matters of dispute in these proceedings" will be resolved, "for practical purposes" (Tobin, affidavit 11 November 2016, par 15), by approval of the respondents' DA as lodged.
14. In the meantime the respondents rely on having in place good management (notably Paul Walker), a so-far voluntary Code of Conduct (dating from November 2014), an Environmental Management Plan (dated 24 February 2016 - Exhibit R2, Vol 1 Appendix "C"), and the somewhat contentious EPL.
15. The applicant's concerns with the current operation are already of fairly long standing - Council says since at least 2014 - and Council claims that the respondents have been in no hurry to rectify the problems.
16. The respondents appear to not even accept the veracity of the community's complaints, detailed in many affidavits from local residents, filed in the proceedings. In fact, senior counsel for the respondents described some of the objectors' material as "scandalous", and endeavoured to "explain it away". (See affidavits in ACB, tabs 6 to 9, 12, and 15 to 17; affidavit of Tupper, ACB tab 18, pars 4, 8, 10 to 12; and see Walker's response in pars 191 - 202 of his affidavit, at RCB tab 12, fols 228 - 230.)
17. The applicant further says that the DA assumes the lawfulness of the current activities on the quarry site, and that that assumption should be tested at the hearing of the proceedings, albeit that that hearing occurs while the Minister considers the respondents' DA.

This Application to Vacate

1. The respondents' NOM filed on 14 November 2016 seeks relief in the following terms (my emphasis): 1 The hearing dates for these proceedings commencing 13 February 2017 are vacated; 2 The directions made in these proceedings on 2 September 2016 for the preparation of the matter for hearing are vacated; 3 The Second Respondent undertakes to operate the Martins Creek Quarry in accordance with the document titled Interim Environmental Management Plan - Martins Creek Quarry attached to these orders at Schedule 1; 4 The proceedings are adjourned to 28 September 2017 pending determination of State Significant Development Application number SSD 14_6612 for the Martins Creek Quarry Project lodged with the Minister for Planning on 27 September 2016; 5 The prorceedings (sic) are listed for direction on 29 September 2017; 6 The First and Second Respondents pay the Applicant's costs of this Notice of Motion as agreed or assessed; and 7 Both parties have liberty to restore on 3 days notice.
2. The annexed Interim Environmental Management Plan ("IEMP"), to which par 3 of the NOM refers, includes the following "interim" provisions: 1. No more than 950,000 tonnes of product will be dispatched from the Quarry in any twelve month period. 2. No more than 150 laden trucks will be dispatched from the Quarry in one calendar day. 3. No more than 40 laden trucks will be dispatched from the Quarry in any 1 hour period. 4. The Quarry will not operate outside of the following hours: a. operations carried out on Lot 5 and Lot 6 DP 242210: 7:00 am - 5:00 pm Monday to Saturday, with no operations allowed on Sundays or public holidays; b. operations carried out on Lot 1 DP 1006375 and Lot 1 DP 204377 6am-6pm Monday to Saturday, with no operations allowed on Sundays or public holidays. It is permissible to operate outside these hours for activities like maintenance, provided such activities are not audible at the nearest or most affected residential receiver; and c. train loading and dispatch: 6am to 6pm Monday to Saturday, with no operations allowed on Sunday or public holidays. 5. Buttai may exceed the limits specified in paras [1]-[4] in response to a short-term emergency in respect to infrastructure, but only for the period and to the extent necessary to deal with the consequences of the emergency. For avoidance of doubt, any product dispatched pursuant to this paragraph is not to be counted towards the numerical limit specified in para [1]. 6. Buttai will make compliance with the Code of Conduct a condition of carriage in relation to all trucks carrying product from the Quarry, will make all drivers aware of the Code of Conduct and will take enforcement action where drivers fail to comply with the Code of Conduct. 7. Buttai will require all trucks entering and leaving the Quarry to observe a reduced speed limit of 40km/hour through the town of Patterson (sic) as outlined in the Code of Conduct. 8. Buttai will publicise a telephone number and email address for complaints, will investigate all complaints and seek to resolve them in a timely manner, and will maintain a record of complaints and the steps taken to investigate and resolve them. It will report to the complainant on its actions. It will make this information available to Council upon request. 9. While this Plan is in force, there will be no change to the methods of extraction and processing used at the Quarry. 10. While this Plan is in force, there will be no lateral expansion of the active Quarry pit, and no clearing of native vegetation (other than minor regrowth in previously disturbed areas) will be undertaken for the purpose of expanding the active Quarry pit. The Quarry pit may continue to expand vertically as required. 11. Environmental management of the site will be in accordance with the Environmental Management Plan: Martins Creek Quarry, Revision 5, dated 24 February 2016. 12. All extraction, crushing, grinding and separating operations at Martins Creek Quarry will comply with Environmental Protection Licence 1378. 13. This Plan may be varied by Buttai with the prior consent of Council. Council will not unreasonably refuse consent and will respond to Buttai's requests for variation in a timely manner. 14. If a breach of this Plan is alleged, Buttai is to be informed of the breach and given 28 days to remedy it. If Council and Buttai remain in dispute, they are to agree on the appointment of a mediator and are to undertake mediation in good faith in order to resolve the dispute. 15. This Plan comes into force on the date that orders are made by the Court, and continues in force: a. until discharged by the Court, or b. until consent is granted to the SSDA and Buttai Gravel commences to implement the consent, or c. until final orders are made in these proceedings, whichever occurs first. 16. If consent is granted to the SSDA, Buttai undertakes to use its best efforts to commence implementation of the consent within a reasonable time after: a. if Buttai Gravel accepts the conditions of consent, the grant of consent; or b. if Buttai Gravel or another party lodges an appeal in relation to the grant of consent, the making of final orders in the appeal. 17. Nothwithstanding (sic) para [15] above, if there is an appeal in relation to the grant of consent to the SSDA, or Buttai is dissatisfied with the conditions of consent imposed by the Court on appeal, Buttai may elect to proceed to a hearing of these proceedings, rather than implementing the consent, in which case it will advise the other parties of its intention to do so within 28 days of the making of final orders in the appeal.
3. The version of the IEMP annexed to the 16 November 2016 affidavit-in-support sworn by David Ross Mingay (RCB, tab 7), a key figure in the governance of the respondents, who also gave oral evidence before me on the NOM, omits par 11 from the version in the NOM.
4. In his affidavit Mr Mingay deposed (pars 4, 6 and 9, on fol 122): 4 Since the Second Respondent began operating the Quarry I have been aware that the Quarry has a complex approvals history and as a consequence there has been a lack of clarity about the conditions applying to the Quarry's operations. ... 6 Up unto (sic) the end of September 2016 the Second Respondent has spent approximately $1.3M on work including consultant fees and monitoring to support lodgement of a development application. ... 9 If consent is granted to the SSDA, I will ensure that the First and Second Respondents commence and implement the development consent as soon as reasonably practicable after satisfying any preconditions in the consent and thereafter surrendering any existing use rights and the existing development consent without delay.
5. He also committed the respondents to implementing the IEMP (par 10), and deposed (par 11, on fol 123): 11 As a director of the Second Respondent I am ultimately responsible for the management of the Quarry and I will ensure that the Quarry is managed in accordance with the IEMP until approval of the SSDA is obtained and implemented, when I expect that it will be replaced by the quarry management plans required in accordance with the usual conditions of consent imposed by on or behalf of the Minister for Planning.
6. What Mr Mingay did not say in his affidavit or oral evidence was that he wrote to Council in strong terms on 7 October 2014 (ACB fol 567) saying, inter alia: I provided a written undertaking that on the 28th of August 2014, Daracon would voluntarily request the EPA to limit the EPL to 750,000 tonnes, a 62% reduction and that would limit transportation to 500,000 tonnes of material per annum until such time as a determination of the DA is received. As you know yourself this is a further 50,000 tonnes less than the agreement that Council reached with Rail Corp in 2009. We have had discussions with the EPA who have advised that they would agree to the request for a limit on the EPL.
7. The Council opposes the application to vacate.
8. However, if I am minded to grant the adjournment on conditions, the Council urges me not to accept the respondent's IEMP. Council's submissions (par 61) say that the IEMP "contrary to an initial appearance that it will effect more stringent environmental safeguards, in reality proposes a 'business as usual' scenario".
9. Council proposes that the Court require, as a condition of vacating the hearing, an undertaking by the respondents in the following terms: UNDERTAKING BY FIRST AND SECOND RESPONDENTS Buttai and HIRE undertakes (sic) to the Court: 1 No more than 550,000 tonnes per annum of product shall be produced from the Martins Creek Quarry. 2 No more than 70 laden trucks will be dispatched from the Quarry in any one calendar day. 3 No more than 20 laden trucks will be dispatched from the Quarry in any one hour period. 4 The Quarry will not operate outside of the following hours: ... a. operations carried out on Lot 5 and Lot 6 DP242210: 7:00am - 5:00pm Monday to Saturday, with no operations allowed on Sundays or public holidays; b. operations carried out on Lot 1 DP1006375 and Lot 1 DP204377: 7:00am - 5:00pm Monday to Saturday, with no operations allowed on Sundays or public holidays. It is permissible to operate outside these hours for activities like maintenance, provided such activities are not audible at the nearest or most affected residential receiver; and c. train loading and dispatch: 6:00am to 6:00pm. 5 Buttai and HIRE will pay to the Council a sum of money to be used for the purpose of road maintenance by the Council at the rate of $0.50 per tonne for all Quarry product transported from the Quarry by public road. The sum shall be paid monthly in arrears. 6 Buttai and HIRE will provide to the Council a monthly return of all Quarry products transported by road during each and every month and shall provide to the Council on demand any weighbridge dockets or corroborative evidence that Council may require to verify the accuracy of the monthly returns provided to Council. 7 Buttai and HIRE will make compliance with the Code of Conduct an essential condition of any agency agreement, any employment agreement and any contract relating to the transportation by road of any product to or from the Quarry, breach of which is enforceable by termination of the agency agreement, employment agreement or contract as the case may be. 8 Buttai and Hire, will make all drivers aware of the Code of Conduct and will enforce any non-compliance with the Code of Conduct by terminating the agency agreement, employment agreement or contract as the case may be. 9 The Code of Conduct must provide that all drivers must ensure that no trucks enter the village of Paterson before 6:30am on any day. 10 There will be no lateral expansion of the active Quarry pit and no clearing of vegetation will be undertaken without the written consent of Council. The Quarry pit may continue to expand vertically as required, provided that the depth of the floor of the Quarry shall not exceed RL40 at any stage. 11 No quarrying activity is to take place on Lot 42 DP816828. 12 This undertaking binds Buttai and HIRE jointly and severally and continues in force until discharged or modified by the Court. 13 Buttai and HIRE will not dispose of their interest in the Quarry either by sale or otherwise, unless and until this undertaking is discharged or modified by the Court. In this Undertaking "Council" means Dungog Shire Council "Buttai" means Buttai Gravel Pty Ltd "HIRE" means Hunter Industrial Rental Equipment Pty Ltd The "Code of Conduct" means the Code of Conduct - Martins Creek Quarry (Truck & Dog, Ex-Bin & Sub-Contractors) Revision Number 02, dated 11 February 2015 The "Quarry" means the quarry and processing plant operated on Lot 5 and Lot 6 DP242210, Lot 1 DP1006375 and Lot 1 DP204377 "Quarrying activity includes the extraction, processing, storage or transportation of extractive material. "Quarrying product" means any extractive material extracted and or produced at the Quarry.

The Present Status of the DA

1. On 23 November 2016, Council's "Manager Planning", Jacqueline Tupper, wrote to the DPE (ACB, Vol 2, tab 18, fols 483 - 484), asking a series of questions, against the background of the present adjournment application.
2. The Department responded, on 18 November 2016, (fols 485 - 486), saying, inter alia: The Minister for Planning has delegated the decision-making role for all State significant development applications to the Planning Assessment Commission (Commission) where: • a reportable political donation has been declared; • an objection by the relevant Council has been made; or • more than 25 objections are received. As the Martins Creek Quarry Extension Project (SSD 6612) has received more than 25 objections and Council has made an objection, it will be determined by the Commission. The Minister's Instrument of Delegation can be viewed on the Commission's website. ... There is no current expectation that the Commission will be directed by the Minister for Planning, or the Secretary to undertake a merit review, including holding a public hearing. Rather, it is expected the Commission will determine the application in accordance with current Ministerial delegations. While there is no statutory requirement for the Commission to meet stakeholders or members of the community before determining an application, it has been the Commission's practice to hold a public meeting for all projects subject to more than 25 submissions in objection. Unlike a public hearing, the Commission's public meeting is a non-statutory meeting that does not affect appeal rights under the Environmental Planning and Assessment Act 1979. ... The Department will request that Buttai Gravel Pty Ltd prepare and submit a Response to Submissions (RTS) report. Considering the large volume of submissions the Applicant will need to review and respond to and the upcoming holiday period, the Department anticipates that an RTS may take around 3 or 4 months to prepare. Assuming the RTS is received at the beginning of March 2017, the Department would aim to finalise its assessment report and refer the application to the Commission at the beginning of June 2017. The Commission usually takes up to 42 days to undertake its determination process. ... The Department aims to finalise the Secretary's environmental assessment report within 90 days of accepting the RTS report. ... The Commonwealth Minister (or delegate) aims to make a decision whether to approve, or not approve the proposed action under the Environment Protection and Biodiversity Conservation Act 1999 within 30 days of the NSW Government's decision on the project (ie. determination of the application by the Commission).
3. Among the submissions before the Minister is one of 58 pages from Council (fols 488 - 545), plus one from Maitland City Council (fols 546 - 553), and another from Port Stephens Council (fols 554 - 559).

Power

1. The Court has power to grant adjournments such as is here sought under s 66 of the Civil Procedure Act 2005 ("CPA"), and/or under s 124(3) of the Environmental Planning and Assessment Act 1979 ("EPA Act"), which respectively provide: 66 Adjournment of proceedings (1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings. ... 124 Orders of the Court (1) Where the Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. ... (3) Where a breach of this Act would not have been committed but for the failure to obtain a consent under Part 4, the Court, upon application being made by the defendant, may: (a) adjourn the proceedings to enable a development application to be made under Part 4 to obtain that consent, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.
2. The jurisdiction in s 66 must be exercised having regard to ss 56 - 60 of the CPA, which relevantly provide: 56 Overriding purpose (1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule. (3) A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court. ... 57 Objects of case management (1) For the purpose of furthering the overriding purpose referred to in section 56 (1), proceedings in any court are to be managed having regard to the following objects: (a) the just determination of the proceedings, (b) the efficient disposal of the business of the court, (c) the efficient use of available judicial and administrative resources, (d) the timely disposal of the proceedings, and all other proceedings in the court, at a cost affordable by the respective parties. (2) This Act and any rules of court are to be so construed and applied, and the practice and procedure of the courts are to be so regulated, as best to ensure the attainment of the objects referred to in subsection (1). 58 Court to follow dictates of justice (1) In deciding: (a) whether to make any order or direction for the management of proceedings, including: (i) any order for the amendment of a document, and (ii) any order granting an adjournment or stay of proceedings, and (iii) any other order of a procedural nature, and (iv) any direction under Division 2, and (b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice. (2) For the purpose of determining what are the dictates of justice in a particular case, the court: (a) must have regard to the provisions of sections 56 and 57, and (b) may have regard to the following matters to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case. 59 Elimination of delay In any proceedings, the practice and procedure of the court should be implemented with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial. 60 Proportionality of costs In any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.
3. In any event, the principles guiding the exercise of the vacation/adjournment power are clearly established, and not in dispute between the present parties.

The Principles to Apply

1. As the plurality of the High Court said in Aon Risk Services Australia Ltd v Australian National University ("Aon") (2009) 239 CLR 175; [2009] HCA 27, a case involving amendment, not adjournment, at [113] - [114]: 113 In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy .... It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 114 Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts. It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants. The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment. It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced. It would impact upon other litigants seeking a resolution of their cases. What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward. A just resolution of its claim necessarily had to have regard to the position of Aon in defending it. An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21. Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon. None was provided.
2. French CJ and Heydon J agreed with the orders proposed in that joint judgment, but wrote individual judgments.
3. French CJ said (at [5] and [30]): 5 In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried. ... 30 It might be thought a truism that "case management principles" should not supplant the objective of doing justice between the parties according to law. Accepting that proposition, [Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146] cannot be taken as authority for the view that waste of public resources and undue delay, with the concomitant strain and uncertainty imposed on litigants, should not be taken into account in the exercise of interlocutory discretions of the kind conferred by r 502. Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes.
4. In Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd ("Expense") (2013) 250 CLR 303; [2013] HCA 46, the High Court emphasised the duty of parties and their lawyers to further the overriding purpose set out in s 56 of the CPA ([95] above). The High Court said (at [51] - [57]): 51 In [Aon] it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in [Aon] was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice. 52 Unsurprisingly, the case management rules with which the Court was concerned in [Aon] had essentially the same object as those stated in the CPA. The overriding purpose of the CPA and the rules of court provided for by the UCPR, as stated in s 56(1) of the CPA, is "to facilitate the just, quick and cheap resolution of the real issues in the dispute or proceedings." In order to achieve that purpose, s 56(2) provides that the court: ... "must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule." A duty is also imposed upon a party to civil proceedings. Section 56(3) provides that: "A party to civil proceedings is under a duty to assist the court to further the overriding purpose and, to that effect, to participate in the processes of the court and to comply with directions and orders of the court." Section 56(4) requires that lawyers representing a party to civil proceedings (or any person with a relevant interest in the proceedings) must not, by their conduct, put a party in breach of this duty. [The Court set out ss 57 - 59 in pars [53] - [55], concluding in [55]] 55 ... The CPA provides some broad powers to the court to enable it to fulfil its duties with respect to the management of proceedings. Sections 56 to 59 appear in Pt 6 of Div 1 ('Guiding principles') of the CPA. Division 2 of Pt 6 is entitled "Powers of court to give directions". Section 61(1) provides generally that: "The court may, by order, give such directions as it thinks fit (whether or not inconsistent with rules of court) for the speedy determination of the real issues between the parties to the proceedings." Sub-section (2) goes on to provide that the court may, inter alia, direct the parties to take specified steps and give such other directions with respect to the conduct of the proceedings as it considers appropriate. 56 The evident intention and the expectation of the CPA is that the court use these broad powers to facilitate the overriding purpose. Parties continue to have the right to bring, pursue and defend proceedings in the court, but the conduct of those proceedings is firmly in the hands of the court. It is the duty of the parties and their lawyers to assist the court in furthering the overriding purpose. 57 That purpose may require a more robust and proactive approach on the part of the courts. Unduly technical and costly disputes about non-essential issues are clearly to be avoided. However, the powers of the court are not at large and are not to be exercised according to a judge's individualistic idea of what is fair in a given circumstance. Rather, the dictates of justice referred to in s 58 require that in determining what directions or orders to make in the conduct of the proceedings, regard is to be had in the first place to how the overriding purpose of the CPA can be furthered, together with other relevant matters, including those referred to in s 58(2). The focus is upon facilitating a just, quick and cheap resolution of the real issues in the proceedings, although not at all costs. The terms of the CPA assume that its purpose, to a large extent, will coincide with the dictates of justice.
5. In Richards v Cornford (No 3) [2010] NSWCA 134, Allsop P (as His Honour then was) also stressed the importance of ss 56 - 60 of the CPA in matters of this sort (see [98] - [107, quoted by Pepper J in Vilro Pty Limited v Roads and Transport Authority of NSW [2010] NSWLEC 141, at [20] - [24]).
6. In determining the present NOM the Court must "properly assess where the dictates of justice lie for the purpose of exercising the Court's discretion" (per Pepper J in Royal Motor Yacht Club (Broken Bay) Pty Ltd v Northern Beaches Council (No 2) [2016] NSWLEC 110, at [25], in which case this Court refused a motion to vacate, even though it was unopposed).
7. I vacated hearing dates in Thaler v Cooma Monaro Shire Council (No 2) ("Thaler") [2014] NSWLEC 51, relying upon what Ward JA had said in Kenoss Pty Ltd v Palerang Council ("Kenoss") [2013] NSWCA 174, at [13], when also dismissing a vacation motion, namely: The power to adjourn proceedings or vacate hearings in s 66 of the [CPA] confers a discretion that must be exercised in accordance with the overriding purpose described in s 56(1) of the [CPA] and in accordance with the dictates of justice as described in s 58 of that Act. The considerations that must be taken into account include: the prejudice to the respondent by such an adjournment; the prejudice to the applicant if such an adjournment is refused; the circumstances in which the application is brought; and considerations relating to the administration and management of matters in this Court.
8. Her Honour added: 16 It is submitted that costs would be an adequate remedy for any prejudice suffered by the respondent. Mr Clay notes that it is a consent authority. He points to no prejudice that the respondent will suffer, other than costs, in relation to an adjournment. I note that in [Aon] (at [24]) French CJ noted that the discretion there in consideration (to amend pleadings) was one that was to be exercised in the context of the common law adversarial system as qualified by changing practice and that this is not a system which today permits disregard of undue delay. 17 ... in circumstances where the matter that is to be before the Court next week is a discrete question of statutory construction. The matter appears to have been prepared for hearing by the applicant's former instructing solicitor. I am not satisfied that there would be any difficulty for competent counsel to review the material and be in a position to present the matter before the Court of Appeal next week. It is submitted that if the vacation is not granted the applicant will be unable to proceed with the appeal. There is nothing in the material before me that suggests that that would be the case. In the circumstances, and having regard to the efficient case management of matters within this Court, I am not satisfied that I should vacate the hearing date. ...
9. Pepper J approved the principles stated in both Thaler and Kenoss, in Wingecarribee Shire Council v O'Shanassy (No 4) [2014] NSWLEC 52.
10. Earlier, in Council of the City of Sydney v Samadi ("Samadi") [2010] NSWLEC 125, Her Honour had said (at [51] - [52]): 51 Ordinarily the Court would be loath to insist on the continuation of the preparation of proceedings where costs may be thrown away by reason of an outcome in another matter. This would not facilitate the overriding purpose set out in s 56 of the CPA. 52 However, in the present Class 4 proceedings it is by no means likely that these costs would be wasted. This is because of the uncertainty surrounding the commencement of the development assuming, of course, that the Class 1 appeal succeeds. I cannot ignore the fact that Mr Samadi is elderly and seriously ill. I did not find the evidence proffered on behalf of Mr Samadi that he would commence construction immediately upon success in the Class 1 appeal compelling.
11. In his oral submissions for the respondents on their present motion, Mr Robertson SC referred me to four decisions of this Court, which I will now attempt to summarise.
12. In Sahade v The Owners - Strata Plan No. 62022 & Ors ("Sahade") [2006] NSWLEC 770, in adjudicating a costs dispute in a case in which s 124 had been invoked, Jagot J said: 6 ... However, the applicants did not consent to a simple and relatively lengthy adjournment of the proceedings in order to enable the development application to be determined but continued to press for a hearing date. Ultimately, the respondents say a development consent was granted in September 2006 with the condition relied upon by the applicants, namely condition 6 - doing nothing more than merely confirming the existing position, that is that the caretaker's quarters should only be used as caretaker's quarters. 7 In those circumstances, the respondents submit that far from the respondents having satisfied or caused to be satisfied the applicants' claim, the development application has confirmed that the use that was being made of the premises may continue. In particular, the respondents submit that an extraordinary aspect of this case is that, although the applicants were aware of the development application from a very early stage, they chose to continue the proceedings and thereby chose to expend costs at their own risk. Indeed, the development application was lodged only four weeks after the commencement of these proceedings - which, as I have said, were commenced without any formal notice to the respondents. 8 In those circumstances, the respondents submit that the only possible basis upon which the applicants could succeed in an application for costs would be to demonstrate either that the respondents acted so unreasonably that the applicants should obtain a costs order or that the applicants were almost certain to succeed if the matter had been fully tried. ... ... 10 In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined. 11 ... on the very first return date of the Class 4 application, the respondents were in a position to inform the Court that a development application for the very use complained about was lodged and, accordingly, they were able to apply to adjourn the proceedings as contemplated by s 124(3). Indeed, as it turned out, the Council granted development consent for precisely the use that was being carried out by the respondents. 12 ... The respondents acted appropriately on receipt of the Class 4 application in a manner designed to avoid the unnecessary incurring of costs with respect to this litigation, notwithstanding the substantial issues upon which they might well have relied at a final hearing and as set out in the affidavit of Mr Cole of 23 November 2006. That is, the respondents put those substantial arguments both of law and discretion to one side, promptly lodged a development application and appropriately sought an adjournment of proceedings commenced without notice to them, which application for adjournment according to the record appears to have been consistently opposed by the applicants.
13. In Shellharbour City Council v Altz Pty Ltd ("Altz") [2014] NSWLEC 57, Craig J dealt with a s 66 application. His Honour said: 25 The essence of the argument advanced on behalf of Altz is really this. There is a discretion to afford an adjournment in order to enable the development application to be determined. It is in the interests of justice that this should be done, whether one refers to the provisions of ss 56 to 60 of the Civil Procedure Act or whether, contrary to the submissions it makes, one relies upon the exercise of discretion under s 124(3) of the EPA Act. 26 I have determined, having regard to the background to the proceedings which I have but briefly outlined, that it is appropriate to grant the adjournment sought by Altz. It seems to me there are three reasons that justify the adjournment. First, it is clear that there is a serious question to be determined as to whether or not the manner in which the premises are presently being conducted by Altz do offend the provisions of LEP 2013 and therefore the Act. In so saying I am not suggesting for one moment that the Council does not have a proper case to make. However, it is clear that there are a number of provisions of the EPA Act, of LEP 2013 and of the Exempt and Complying Development SEPP that require consideration in order to determine whether there is a breach that should be remedied. 27 Secondly, it is clearly accepted by the Council that there are aspects of the business being conducted by Altz that fall within the "bulky goods store" definition in LEP 2013 and hence those aspects of the activity would be lawful. So much is apparent from the April 2011 referral of the proposal to the Council and the latter's response of 6 May 2011. Whether the detail as then understood by the Council is reflected "on the ground" is a matter yet to be determined. But the point upon which I rely is the circumstance that conduct of the activity generally conforming with the intent of a " Good Price Home Health Care Supplies" establishment is capable of complying with LEP 2013. Added to that, it should be noticed that the complying development certificate that was granted and of which the Council was given notice late in 2011, is not the subject of any challenge in these proceedings. 28 Section 76A of the EPA Act requires that if an environmental planning instrument provides that specified development may not be carried out except with consent, a person must not carry out such development without that consent, being a consent that is in force. By subsection (2) of the same section, it is provided that in the case of complying development, a consent may be obtained by the issue of a complying development certificate. There is a complying development certificate that appears to be current in respect of the subject premises. I identify that circumstance as being one demonstrating the capacity for development that conforms with the intention of the application for that certificate to comply with the provisions of s 76A. 29 The third factor that causes me to conclude that an adjournment should be granted is delay. I can accept that both parties have not acted with the expedition that might have been expected, given the circumstances of the case. However, the position of Altz, so it seems to me, is somewhat different to that of the Council. It is the Council who complains that a breach of the Act is and has been occurring, an allegation in respect of which it has been aware since late 2011. 30 It will be remembered that the complaint from a competitor or competitors about the current manner of conduct at the premises was first notified to the Council in late 2011. The complaint was investigated in mid 2012 and yet proceedings were not commenced until January 2014. The Council has not sought, understandably in the circumstances, an interlocutory injunction to restrain the activities that are presently being conducted. 31 In those circumstances it seems to me that the delay in commencing proceedings to restrain the activity said to be unlawful is such that, if not the letter, then the purpose of the EPA Act, as reflected in s 124(3), should be implemented. There should be an opportunity afforded to Altz to obtain the consent for which it has now applied without incurring further cost in defending the present proceedings pending determination of its application. [In [32] His Honour quoted [10] from Sahade, as I did in [108] above.] 33 By referring to that passage I do not determine that s 124(3) is the provision under which the adjournment is granted. In light of the argument earlier advanced on behalf of Altz I leave that question open. Nonetheless, in my opinion the provision does reflect a legislative intention, in circumstances like the present, that an opportunity be afforded to obtain a development consent. The subsection therefore reflects a basis upon which a discretion can properly be exercised in accordance with the provisions of Pt 6 of the Civil Procedure Act. I also note the observations of Pepper J in [Samadi] where her Honour said at [51]: "Ordinarily the Court would be loath to insist on the continuation of the preparation of proceedings where costs may be thrown away by reason of an outcome in another matter. This would not facilitate the overriding purpose set out in s 56 of the CPA." 34 There is no doubt that if the present Class 4 proceedings are prosecuted to their conclusion, they will raise complex issues of law and of fact of the kind that were addressed in litigation both in this Court and in the Court of Appeal in Bardsley-Smith v Penrith City Council [2013] NSWCA 200. In contrast, by adjourning the proceedings for a relatively short period and allowing what on its face would appear to be a fairly straight-forward application to be considered and determined by the Council and, if necessary, by this Court on appeal, there is a more expeditious and less costly means of addressing the issue between the parties than the conduct of protracted Class 4 litigation.
14. I quoted extensively from Altz in North Sydney Council v North Sydney Leagues Club Limited ("Norths") [2016] NSWLEC 22, in which various delays played a key part. The Club's adjournment application was specifically based on s 66. Unlike Craig J, I exercised the Court's discretion in Council's favour, finding ([50]) that the adjournment application was the Club's "latest attempt to avoid or postpone the consequences of its alleged breach(es) of the planning law".
15. A second application was made to the Court by the "Norths" Leagues Club three months later, this time relying on s 124(3), rather than s 66, because a Class 1 appeal was on foot, and I vacated the hearing on strict conditions: North Sydney Council v North Sydney Leagues Club Limited (No 2) [2016] NSWLEC 78.
16. I said (No 2, at [5]) that the Court "must always bear in mind finding the most 'just, quick and cheap' way forward". Neighbourhood complaints appeared to have reduced, but breach of the planning law was admitted. The Council argued (see [20]) that even if the Class 1 succeeded, the Class 4 may retain "some utility", but, like here, the Club argued that the Class 1 would "wholly address" the substance of the Class 4 case.
17. In my decision I required the Club "to take all necessary steps" to have the Court conclude the Class 1 proceedings.
18. In so far as Mr Robertson argues (pars 13 - 14) that this Court has adopted a practice, based on an alleged "strong legislative policy", that it "should generally be inclined to adjourn civil enforcement proceedings to permit the lodging of a DA which would resolve the issues in dispute", he further relies on Tynan v Meharg (1998) 101 LGERA 255 as Court of Appeal endorsement of that practice as a court policy.
19. Such a policy/practice usually relies on s 124(3), but, in this case, no breach has yet been found, and the respondents rely on s 66. Mr Robertson submits, however (par 15), relying on Norths and Altz, that the same policy considerations apply to any reliance on s 66 in the present case, where breach is denied (see applicant's subs par 19 and 20).
20. The applicant submits (par 20): ... The blind application of a policy or 'practice' is not an appropriate exercise of discretion.

Competing Submissions

1. The respondents' contentions in support of the orders sought in their NOM are summarized in their written submissions (par 8) as: a. it is the usual practice of the Court in Class 4 civil enforcement proceedings to grant an adjournment to permit a consent to be obtained if that will provide an answer to the alleged breaches; b. in this case, granting an adjournment may prevent the throwing away of costs on a complex, fully contested, three week hearing; c. the environmental impacts of allowing the Quarry to continue operating during the adjournment will be minor and will not increase, as the second respondent will undertake to comply with an Interim Environmental Management Plan during the adjournment; d. the first and second respondents are committed to obtaining and implementing the SSDA as soon as possible; e. the Council delayed commencing these proceedings, when the facts alleged in the proceedings have been known to it since at least 2009, and on one view since about 1999; and f. the first and second respondents made this application promptly after lodgement of the SSDA, and have offered to pay the Council's costs of this application as agreed or assessed.
2. Mr Robertson submits (pars 17ff) that the February 2017 hearing is "likely to be expensive and time-consuming for all parties and for the court", as "the factual and legal disputes ... are complex". I note that the respondents' solicitor has warned his clients that the hearing will cost them $1M (RCB, tab 4, fol 85).
3. Mr Robertson annexed to his submissions a table in which he nominates 20 issues, and he drew attention to the APOD, which respond to the 120 paragraphs in the APOC.
4. He confirmed that if any breaches are proven at the hearing, the respondents will ask the Court to exercise "a discretion to stay or decline relief", but he also emphasised that the second respondent is committed to working with the DPE to obtain approval of the DA as soon as possible.
5. He went on, however, to reserve his clients' appeal rights if the approval is not to their liking.
6. On the other hand, the Council's written submissions opposing the respondents' adjournment application, say, inter alia (pars 7, 11, 12, 14 and 17): 7. At its highest, there is a contingent possibility, that sometime in the future after further work is done to address fundamental issues with the SSDA (explained later in these submissions) the issues the subject of these proceedings might be resolved. That is not a sufficient basis upon which a discretion to adjourn should be exercised. The applicant submits that notwithstanding the SSDA there is utility in these proceedings been heard. It is in the interest of all parties that the issues are resolved such that the first and second respondents will know the basis upon which the SSDA should be prepared. It would be unreasonable and irrational for the Planning Assessment Commission (PAC) to determine the SSDA (which it many respects adopts existing environmental impacts from the Martins Creek Quarry as an environmental baseline) unless they know to whether and to what extent the Quarry is presently operating lawfully. The determination of the issues will be of further utility as, should the Court find the Quarry has been operating unlawfully, affected community members may be able to commence actions in nuisance for damage caused by the Quarry. ... 11. Notwithstanding the Department of Planning's estimate as to when the NSW and Cth applications might be determined, the timing of those determinations is invariably flexible and uncertain. This is all the more so taking into account recent submissions from government agencies and correspondence from the Department of Planning and Environment identifying deficiencies in the reports prepared in support of the SSDA and requesting that the second respondent consider and respond comprehensively to those comments. It is unknown whether the SSDA will be re-notified. 12. Even if one can know the date of determination of the SSDA and the Commonwealth Minister for the Environment's determination, that does not resolve the issue that the adjournment is in effect for an indefinite period. That is because the second respondent in its proposed Interim Environmental Management Regime impliedly envisages an application for a further adjournment in the event that it lodges a merits appeal from the decision of the PAC. Moreover, there is a good chance that even if approved on acceptable terms, an objector will lodge a merits appeal under s 98(4) of the Environmental Planning and Assessment Act 1979. ... 14. Ultimately, the second respondent seeks to have the proceedings heard only if and when it deems it convenient at paragraph 17 of its Interim Environmental Management Regime it is stated that 'notwithstanding para [16] above, if there is an appeal in relation to the grant of consent to the SSDA, and Buttai is dissatisfied with the conditions of consent imposed by the Court on appeal, Buttai may elect to proceed to a hearing of these proceedings, rather than implementing the consent, in which case it will advise the other parties of its intention to do so within 28 days of the making of final orders in the appeal.' The added delay envisaged by paragraph 17 is contrary to the requirements of timely disposal of proceedings. ... 17. This is not a case where the use in dispute will cease for the duration of the adjournment. In the face of the strength of the applicant's case, the first and second respondents are seeking judicial sanction to operate on terms, (for a significant period of time) which the applicant says is in breach of the EP&A Act - the Court should not accept that that is an appropriate course of action. As will be demonstrated below, there will be continuing adverse environmental consequences and also prejudice suffered by the Council.
7. The applicant's submissions continue (pars 22, 23, 25, and 26): 22. ... the SSDA does not clearly assess all of the relevant impacts of the development for which it seeks consent. Rather, that application proceeds on the basis that there is no significant impact from what is existing. 23. The fundamental factual foundation upon which the SSDA has been prepared is in dispute. That dispute is to be resolved by the hearing of these proceedings. It is the Applicant's submission that the resolution of these proceedings must precede any consideration and determination of the SSDA; not the other way around. ... 25. ... If the Council were successful in these proceedings, at the very least the impact from truck movements would be practically abated, being limited to 24 laden truck movements per day. The environmental baseline would be significantly different to that which Buttai relies upon. 26. ... the [SSDA] fails to take into account the likely impacts of the development. Again, that is because numerous impacts have been assessed on the basis of what is currently occurring within the subject site. The Application is inconsistent as to the approach it adopts in an assessment of impacts. ...
8. By way of example, the Council's submissions point out that the DA documents describe the quarry's current average output of hard rock material as 906,000 tonnes pa, with the DA seeking approval to extract up to 1.5M tonnes pa, inadequately assessed. The serious acoustic and traffic issues raised by Council and local residents are virtually dismissed by the EIS.

Consideration

1. In the usual s 124(3) situation there is a breach which the offending party is seeking to rectify by obtaining a consent or a building certificate.
2. Here the developer does not accept that there is a breach, and also does not accept that it is bound by the conditions Council sought to impose on the 1991 consent.
3. The current operation of the quarry is "larger", in material respects, than it was in 1990 -1991, but any additional post-1991 impacts have never been assessed under the EPA Act.
4. The Council's proceedings deal with the present realities of the operation.
5. What the present DA seeks is not a regularization of current operations, but approval to significantly expand them.
6. The assessment of the DA is far from complete. The requisitions raised by the assessing and commenting authorities are very complex, and may result in the need to re-exhibit the proponents' (revised) material, which would certainly postpone a decision beyond the anticipated December 2017 date.
7. Samadi illustrates that the courts, when adjourning hearings, prefer some certainty in respect of timing.
8. Assuming the DA process has a result favourable to the present respondents, there is a possibility it could be challenged by an unhappy objector, and, in light of Mr Mingay's evidence, also by the respondents themselves.
9. I also find quite unrealistic Mr Mingay's estimates of how quickly the respondents would take up any consent - the suggestion is "as soon as reasonably practicable". Mr Howard's rather exotic "graphic" indicates how open-ended the timetable could be.
10. Contrary to the respondents' submissions, I am firmly of the opinion that the litigation of the claims made by the Council will certainly, and usefully, inform the State and Commonwealth authorities' assessment of the DA, and have genuine utility as a consequence.
11. The respondents want the proceedings to be delayed indefinitely, and see them heard at a time of their choosing.
12. They offer costs, and an interim regime, in return for a decision that achieves that objective.
13. The authorities indicate that costs are not always a sufficient tonic for the actual cost and inconvenience cause by vacation of a hearing and the resulting delay, and I agree with Council that the respondents' IEMP really maintains the status quo, be it lawful or otherwise. It must be accepted as lawful until the Court finds it not so, and an indefinite adjournment of a hearing designed to resolve those issues is not in the public interest, nor the interests of justice.
14. There were many submissions regarding delay as a ground for granting or refusing the application, but I prefer to decide it on its merits rather than on those allegations.
15. In all the circumstances the Council's submissions are clearly to be preferred, and I find no merit in the respondents' application.

Conclusion and Orders

1. The Notice of Motion filed by the first and second respondents on 14 November 2016 is dismissed, with costs.
2. The hearing dates, 13 February to 3 March 2017 are confirmed.
3. The pre-trial mention will now be held at 9.30am Friday 3 February 2017, before the Trial Judge, and the matter is stood over to that mention.
4. The Court Books and other exhibits are returned.

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