Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd - [2018] NSWLEC 153 - NSWLEC 2017 case summary — Zoe

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Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd

[2018] NSWLEC 153

Land and Environment Court (NSW)|2017-02-28|Before: Molesworth AJ

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At a glance

Source facts

Court

Land and Environment Court (NSW)

Decision date

2017-02-28

Before

Molesworth AJ

Source

Original judgment source is linked above.

Judgment (217 paragraphs)

[1]

Background

Within the Shire of Dungog, in the Hunter Valley Region, there is an operational quarry and undertaking known as the Martins Creek Quarry (the Quarry). As the name suggests, the Quarry is located next to the town of Martins Creek, off Station Street, and is approximately 4 km from the town of Paterson as the crow flies. The Quarry comprises four lots, being: Lot 5 in Deposited Plan 242210; Lot 6 in Deposited Plan 242210; Lot 1 in Deposited Plan 1006375; and Lot 1 in Deposited Plan 204377.
At the outset, it is convenient to divide the lots comprising the Quarry into two notionally separate parcels. The lots to the west of Station Street - comprising Lot 5 in Deposited Plan 242210 (Lot 5), and Lot 6 in Deposited Plan 242210 (Lot 6) - will henceforth be referred to as the Western Lands. The lots to the east of Station Street - comprising Lot 1 in Deposited Plan 1006375 and Lot 1 in Deposited Plan 204377 - will henceforth be referred to as the Eastern Lands.

[2]

Eastern Lands - relevant history

The relevant history of the Eastern Lands dates back to around 1914 whilst, for the Western Lands, the earliest relevant year is 1990. Amongst the evidence placed before the Court was material which provided an overview of the history of the Quarry and an understanding of the operations of a railway ballast quarry. In particular, tendered by the Company Respondents were extracts from an historical work titled "Martin's Creek Ballast Quarry" written by Mr Peter Attenborough (Exhibits 4A, 4B and 4C).

[3]

Western Lands - relevant history

With respect to the Western Lands, the relevant history commences on 8 August 1990 when the State Rail Authority of New South Wales (SRA) lodged a development application (DA) with the Applicant Council (the 1990 DA) - which described: the proposed development as "quarry for railway balast [sic]" and the location of the proposed development as "Lot No. 5 + 6" of "D.P. 232210 [sic]" (with an area of 10 ha.) - and copies of an accompanying environmental impact statement (EIS) dated July 1990 (1990 EIS).
On 12 February 1991, the Applicant Council formally resolved "that development consent be granted for an extractive industry being a quarry winning material primarily for railway ballast on lots 5 and 6 in DP 242210 … subject to the following conditions" (18 conditions were then specified). This was followed by the Applicant Council sending the SRA a notice of determination of the 1990 DA on 7 March 1991 (Notice), in which the development was described as "An Extractive Industry (Designated Development) being a quarry, winning material primarily for railway ballast". On 14 March 1991, the Applicant Council formally resolved that the "conditions of development consent be amended to read …" (15 conditions were then specified). These amended conditions were sent to the SRA on 21 June 1991.
In this judgment, the consent given by the Applicant Council in relation to the 1990 DA will be referred to as the 1991 Consent. For the purposes of the judgment at this overview stage, for ease of reference the Applicant Council's decisions of 12 February and 14 March will collectively be referred to as the 1991 Consent. Later in the judgment, after setting out its analysis, the Court will precisely identify the consequences of each resolution so as to clarify when the Applicant Council's actions "matured" into the final 1991 Consent. The precise date on which that consent was granted was in contention and is discussed in Issue 4 below.
Since the granting of the 1991 Consent, quarrying has been carried out on the Western Lands to the present day. In the context of quarrying having ceased on the Eastern Lands from late 1993, processing of quarry product extracted from the Western Lands has been conducted on the Eastern Lands since the commencement of the Western Lands quarry.

[7]

The case in relation to the Western Lands

With respect to the Western Lands, the Applicant Council seeks to enforce the Environmental Planning and Assessment Act 1979 (EPA Act) by establishing that the Company Respondents are carrying out development both in breach of the 1991 Consent and without the requisite consent. More specifically, the Applicant Council advances four principal contentions as to why the Company Respondents are contravening s 76A of the EPA Act (now s 4.2) in carrying out development on the Western Lands.
First, the Applicant Council alleges that the Company Respondents are carrying out development for the purpose of extractive industry beyond the area of land approved for such development (with the approved area said to comprise a specified area within Lot 5) and, therefore, without the requisite consent. Secondly, the Applicant Council alleges that the Company Respondents are carrying out development for an unapproved extractive industry purpose - rather than for the approved purpose of a quarry winning material primarily for railway ballast - and, therefore, without the requisite consent. Thirdly, the Applicant Council alleges that the Company Respondents are carrying out development for the purpose of processing extractive materials without the requisite consent. Fourthly, the Applicant Council alleges that the Company Respondents are carrying out development in contravention of three conditions of the 1991 Consent. In particular, the Company Respondents are said to be in breach of the following alleged conditions of consent: a condition relating to the amenity of the neighbourhood; a condition restricting the number of truck movements; and a condition relating to environmental safeguards.
The relief that the Applicant Council seeks from the Court with respect to the Western Lands includes nine declarations and nine orders (Amended Summons, prayers 1-16 and 25-26). It is uncontroversial to observe that if the orders sought were made by the Court, the Company Respondents would be significantly restrained in carrying out quarry-related development on the Western Lands.

[8]

The case in relation to the Eastern Lands

With respect to the Eastern Lands, the Applicant Council seeks to enforce the EPA Act by establishing that the Company Respondents are carrying out development without the requisite consent. More specifically, the Applicant Council advances four principal contentions as to why the Company Respondents are contravening s 76A (now s 4.2) of the EPA Act in carrying out development on the Eastern Lands.
First, the Applicant Council alleges that the Company Respondents are - by processing materials and manufacturing products - carrying out development for the purpose of general or heavy industry on part of the Eastern Lands without the requisite approval. Secondly, the Applicant Council alleges that the Company Respondents are - by storing, stockpiling and transporting extracted materials on part of the Eastern Lands - carrying out development without the requisite consent. Thirdly, the Applicant Council alleges that the Company Respondents are - by installing and using a pugmill for the purpose of manufacturing - carrying out development without the requisite consent. Fourthly, the Applicant Council alleges that the Company Respondents are - by installing and using a pre-coat plant for the purpose of manufacturing - carrying out development without the requisite consent.
Additionally, the Applicant Council also claims that the crushing and stockpiling of quarried material on part of the Eastern Lands constitutes an enlargement, expansion or intensification of a lawful continuing use of the land contrary to s 109 (now s 4.68) of the EPA Act.
The relief that the Applicant Council seeks from the Court with respect to the Eastern Lands includes four declarations and four orders (Amended Summons, prayers 17-24). As above, if the orders sought were made by the Court, the Company Respondents would be significantly restrained in carrying out development on the Eastern Lands.
Further to the Applicant Council's claims regarding the EPA Act, another major plank in the Applicant Council's case is its claim that the variation to EPL 1378, made on 2 April 2007 by the EPA, is invalid and of no effect because it was made in contravention of the POEO Act. The Applicant Council seeks from the Court a declaration to this effect and a consequential order restraining, in effect, the Company Respondents from relying on that variation (Amended Summons, prayers 27-28).
The Company Respondents deny all of these overarching allegations made by the Applicant Council. Ultimately, the Company Respondents maintain that the development being carried out on the Western and Eastern Lands is not "being carried out unlawfully, in the absence of the requisite approvals under the [EPA Act]". With respect to the Western Lands, the Company Respondents claimed that the relevant development is approved by the 1991 Consent. With respect to the Eastern Lands, the Company Respondents claimed that the relevant development is lawful, by virtue of s 109 of the EPA Act, as a continuing use. Importantly, it is also claimed that the Applicant Council's case against the First Respondent should be dismissed because the First Respondent cannot be said to have carried out any of the development alleged to be unlawful.
However, in the event that the Applicant Council successfully establishes that the Second Respondent and/or First Respondent have carried out development at Martins Creek unlawfully, the Company Respondents argued that the Court should exercise its discretion to decline to grant the relief sought by the Applicant Council in its Amended Summons. The Company Respondents made a similar argument with respect to the variation of EPL 1378. The Applicant Council countered that the Court should grant the relief that it seeks in the event that it is successful. In this respect, it is also relevant to note at the outset that the Second Respondent has lodged, under the EPA Act, a State Significant Development application (SSD Application) for the Martins Creek Quarry Extension Project, which has yet to be assessed and determined by the relevant consent authority.

[9]

Lot 42 DP 815628 - Land not the subject of the proceedings

In the course of the proceedings a further parcel of land, Lot 42 in Deposited Plan 815628, had at times been included in references to the Quarry in association with the Western Lands. Two boundaries of Lot 42 abut the southern part of Lot 5 (T8.41). In par 5 of the Amended Points of Claim it is stated that the First Respondent is the lessee of land comprising Lot 42 under a lease from the owner of that land Nodekeda Pty Limited. In their Amended Points of Defence the Company Respondents admit that pleading. In par 7 of the Amended Points of Claim it is stated that Nodekeda does not wish to take part in the proceedings.
A review of the 1990 DA, the land particulars set out in the 1990 EIS (Exhibit R-1, p 176) and the Applicant Council's letter of 7 March 1991 (Exhibit R-1, p 355) and the resolutions of the Applicant Council of 12 February and 14 May 1991 (February Resolution and May Resolution, respectively), all confirm that Lot 42 was never the subject of the 1991 Consent. By correspondence from the Council dated 15 June 1992 (Exhibit Q being the Applicant Council's supplementary evidence book, p 1) it appears that the Applicant Council was then encouraging Freight Rail to "negotiate with Mrs Giselle Thomas the owner of Lot 42 (in DP 815628) relative to purchase" on the basis that "Freight Rail should purchase adjoining land owned by Mrs Thomas and any other land sterilized by the quarry's operations".
There appears to have been a DA 171/94/41 made in March 1995 with respect to Lot 42, by which development consent was sought for extraction of stone and processing (Exhibit R-1, p 447). There was also evidence received that a consent was obtained with a 10 year operational limit (T657.40-45; T685.1-9; T752.46-50; and T787.1-6). Despite the examination and cross examination of witnesses regarding quarrying on Lot 42, the Court proceeds on the basis of the assurance given to the Court in the opening by Mr Howard, senior counsel for the Applicant Council. He advised the Court that Lot 42 forms part of the Western Lands but that "there's no claim or counterclaim in relation to that parcel of land and quarrying is, as we understand it, not being carried out on that portion, so that the western lands, effectively, where extraction has and is taking place comprise lots 5 and 6" (T7.41-46). Accordingly, the Court proceeded on the basis that Lot 42 does not form part of the Quarry in contention and so is outside the lands which are the subject of these proceedings.
In view of the foregoing, surprisingly the Amended Summons erroneously included Lot 42 when making reference to development on the other Western Lands lots. In particular, prayer 4 seeks a declaration that any further extraction of material from the Western Lands and Lot 42 is prohibited. Prayer 5 then seeks an order restraining the Company Respondents from extracting any further material from the Western Lands and Lot 42. If the evidence had shown that material was being extracted from Lot 42 without a development consent, the Court would have made the declaration and restraining order sought. However, despite the reference to Lot 42 remaining in the relief sought in the Amended Summons through to the end of the proceedings, the Court assumes it remained due to oversight. Accordingly, there will be no relief granted with respect to Lot 42.

[10]

The 11 primary issues to be addressed

Whilst the principal overarching allegations made by the Applicant Council have been set out above, it is important to note that the parties, quite appropriately, structured their submissions to address the allegations in a neatly sequential and confined manner. The Court has decided to adopt a structure which replicates the manner in which the parties helpfully organised their submissions to address the critical legal issues. Considered seriatim, these issues are as follows: 1. Whether or not the 1990 DA and 1990 EIS should be taken to be incorporated into the 1991 Consent. 2. Whether or not the Company Respondents are carrying out extractive operations on Lot 6 (and part of Lot 5) without the requisite development consent and, therefore, unlawfully. 3. Whether or not the Company Respondents are unlawfully carrying out the unapproved extractive industry development on Lots 5 and 6 of a quarry winning material primarily for the manufacture of concrete, asphalt and spray seal aggregates and road and pavement construction materials (rather than a quarry winning material primarily for railway ballast). 4. Whether or not conditions of the 1991 Consent were validly imposed and if so, what are those conditions and if not, what are the consequences. 5. Whether or not the Company Respondents are contravening conditions 1 (relating to neighbourhood amenity) and 6 (relating to product transportation) of the 1991 Consent. 6. Whether or not the Company Respondents are contravening condition 7(b) of the 1991 Consent (relating to environmental monitoring/environmental safeguards). 7. Whether or not the Company Respondents - in using a manufactured sand processing plant and associated facilities and two mobile processing plants - are carrying out unlawful processing on Lots 5 and 6. 8. Whether or not the current use of the Eastern Lands is a lawful continuing use under s 109 (now s 4.68) of the EPA Act and, hence, whether or not the Company Respondents are unlawfully processing materials and manufacturing products on the Eastern Lands. 9. Whether or not the First Respondent can be liable for carrying out development on the Eastern Lands and Western Lands unlawfully in circumstances where it has allegedly not carried out any of the relevant development on the Eastern Lands and Western Lands. 10. Whether or not the variation of EPL 1378 was invalid and of no effect. 11. Whether or not, if the Applicant Council were to be successful, the Court should exercise its discretion under s 124 (now 9.46) of the EPA Act to decline to grant the Applicant Council the relief that it seeks.
Many of these overarching issues involve a plethora of significant constituent issues. In particular, the continuing use issue (Issue 8) involves a number of detailed legal and factual issues and requires the careful consideration of alternative cases.

[11]

The magnitude of the proceedings

As might be apparent from what has already been said, the scale of these proceedings is considerable. The substantive hearing spanned across 22 days (including one day of an on-site view) and involved the adducing of (sometimes complicated) oral evidence from many witnesses (experts and laypeople). The four volume evidence book (including affidavits) spans some 2,784 pages (albeit not all admitted as evidence), 37 (sometimes considerably detailed) further exhibits were tendered, and a folder of historical legislation was provided to the Court. Moreover, the total word count of the parties' written submissions was well over 100,000 (which were complemented by extensive oral submissions over the many days of hearing) and the parties collectively relied upon at least 131 (often seminal) town planning law authorities.
None of the above is to suggest that counsel and the solicitors for the parties did not present their respective cases admirably and efficiently or should be seen as the Court grumbling about the task before it. To be clear, counsel and the relevant solicitors enabled the hearing of the proceedings to be efficient and provided significant assistance to the Court.
However, it is important to convey the magnitude of the proceedings to justify why this judgment will not provide: an entire summary of the relevant body of oral and written evidence, an entire separate summary and consideration of the relevant legal principles relating to the overarching legal issues, or an entire history of events relevant to the quarry-related activities on the Western and Eastern Lands. To attempt to undertake this herculean task is simply not sensible and would probably be of limited utility and, even worse, prove distracting and confusing: see, eg, Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 at 171-172.
Instead, this judgment will provide a detailed summary of the competing positions of the parties (on Issues (1)-(11) above) which draws out the pertinent evidence that has been relied on by the parties. This does not mean that the Court has only considered the evidence expressly or implicitly relied upon by the parties. What it does mean is that the Court has focused on the key evidence relied upon by the parties to support their propositions. Moreover, given the scale of this judgment, the Court has staggered its consideration of the legal issues such that each summary of the competing positions of the parties is followed by the Court's determination of that issue.
Notwithstanding the above, in order to properly contextualise this judgment it is necessary to: briefly explain some pertinent aspects of the nature of the body of relevant evidence and identify the documents that are annexed to this judgment; and briefly outline salient parts of the relevant statutory framework.
However, first, the Court has decided to concisely set out the outcome of the proceedings and identify its critical determinations and findings.

[12]

Western Lands - major conclusions

It is appropriate at the outset to indicate that, with respect to the Western Lands, the Court has decided as follows. 1. The proposal which was sought in the 1990 DA, considered and then approved by the 1991 Consent was specifically a railway ballast quarry and not a more generic quarry. 2. Although Lots 5 and 6 were approved as the subject land for the purposes of the railway ballast quarry, the extraction of stone component of the quarry activity was to be contained entirely within Lot 5 and only a 5 ha portion of it. The outer perimeter of the area, within which the 5 ha was to be located, was delineated on an indicative plan, albeit a sketch plan, being Plan 2 in the 1990 EIS accompanying the 1990 DA. Ancillary components of the railway ballast quarry were approved to be within a restricted 5 ha area of Lot 6. 3. The aggregate area to be occupied by the approved development, comprising all components, was intended to be limited to approximately 10 ha and therefore not across the entire 52.5 ha of Lots 5 and 6. 4. Although processing of extracted rock on the Western Lands was a legitimate ancillary land use when the Quarry commenced, once the primary development of extraction impermissibly extended beyond the permitted location and depth, thereby increasing productivity beyond envisaged production, the ancillary lawful entitlement to conduct processing on the Western Lands ceased because the primary development was no longer lawful. 5. Contrary to the case pressed by the Company Respondents that the 1991 Consent with respect to the Western Lands was issued unconditioned on 12 February 1991, the Court has found that the May Resolution, of 14 May 1991, granted a valid development consent and that the consent validly imposed development conditions. 6. In order for the 1991 Consent to be correctly construed it is necessary and proper to incorporate relevant components of the 1990 DA and its associated 1990 EIS into the Consent. 7. Condition 6 in the 1991 Consent validly imposed a restriction that the transport of quarry product by road was not to exceed "greatly more than 30% of quarry products" on an annual basis. 8. Condition 1, being the requirement that there not be interference with the amenity of the neighbourhood, has been breached, primarily due to a very significant increase in truck movements associated with the Quarry. 9. With respect to all of the findings just summarised, the Court has decided it is appropriate to exercise its discretion in favour of the Applicant Council and so has decided to make the orders sought in response to prayers 1-9, 11, 12, 25 and 26 of the prayers for relief in the Amended Summons, modified as the Court has considered necessary. All orders are stayed for a period of three months. 10. The Applicant Council has not made out its case that the 1991 Consent limited the extraction of stone from Lot 5 to not more than 300,000 tonnes per annum; therefore no order is made with respect to prayer 10 in the Amended Summons. 11. The Applicant Council has not made out its case that the 1991 Consent limited the transporting of quarry products to no more than 12 truckloads per day; therefore no order is made with respect to prayers 13 and 14 in the Amended Summons. 12. The Applicant Council has not made out its case that the 1991 Consent limited the transporting of quarry products to no more than 80,000 tonnes per annum of quarried material , therefor no order is made with respect to the 15th and 16th prayers for relief in the Amended Summons

[14]

The context of the Court findings

The importance of identifying precisely what was sought in the 1990 DA and then determining precisely what received consent, constrained by the parameters set by that 1990 DA and nothing more, calls for a reflection of the context within which this judgment is written. Although in the minority in the judgment in Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 (Hillpalm), Kirby J's obiter observations at [71]-[73] provide a useful reminder of the context for the determination of the issues in this case, charging this Court to ensure that an unjustified expansion of development far beyond that originally proposed, and consented to, ought not to be condoned. "71 The nature and purpose of land use law: In order to understand the operation of planning law - both under the LGA and, when it came into force, the EPAA, it is necessary to appreciate that it is concerned with fundamentally more important objectives than the rights of those with various interests in land inter se. Of their nature, such laws, governing consent to development generally, and to subdivisions in particular, are concerned with the orderly management of land in society so as to protect at once the interests of individuals, the community and the environment 72 This point was well made by Street CJ in F Hannan Pty Ltd v Electricity Commission (NSW) [No 3] at [310]-[313]. His Honour's analysis is generally accepted as the classic exposition of the nature and scope of the jurisdiction and powers of the Land and Environment Court to grant remedies for breaches of the EPAA pursuant to the provisions whose scope is in issue in this appeal. However, much of what Street CJ says in that connection (whilst especially pertinent here) is also applicable to the purpose and effect of conditions imposed under the former planning law in the LGA. I shall return to his Honour's analysis later. For the moment it is enough to notice the essential point he made at [313]: '[T]he task of the Court is to administer social justice in the enforcement of the legislative scheme of the Act. It is a task that travels far beyond administering justice inter partes.' 73 The reason for the breadth of this principle lies in the central purpose of planning law for land management and use. That purpose is to ensure, relevantly, that the basic purposes necessary to that task are observed and conditions essential to a modern interdependent society observed. Apart from the considerations already mentioned, one has only to think of societies that do not protect their environment and land-based infrastructure, but permit developments to occur without observance of overall planning control and environmental protection. It is because of the chaos that can ensue in such circumstances that the ultimate focus of planning regulation law is the land itself. It is not, as such, merely the ephemeral ownership or possession of the land."
In the context of the foregoing, it would be unjust for the 1991 Consent, effectively by default, to be interpreted as having been granted for a far larger area (and consequentially allowing far larger quarrying operations) than that which was applied for by the SRA and envisaged by responding authorities and the community-at-large. It would have the effect of including areas for development, and greater consequential impacts, which were not properly considered for expanded operations. Further, to accept that the 1991 Consent extended to a larger area than that originally proposed in the 1990 DA would effectively undermine, indeed potentially make a mockery of, public participatory processes
The Court of Appeal in GPT Re Limited v Belmorgan Property Developments Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256 at [49] highlighted the relevance of the implications for the public when it examined conditions in a consent which may have the effect of the development consented to becoming not that for which approval was sought but rather a different development to that proposed. The Court said: "49. The extent to which departure from the development described in the application is permissible may depend in part upon the requirements of public notice and the opportunity to be given for those potentially affected by the development to lodge objections."
In this case the 1990 EIS, accompanying the 1990 DA, would have left no doubt to a reader, say a member of the public or an approval authority, that the proposal involved, inter alia, a railway ballast quarry with the extraction of rock limited to a specified 5 ha area within Lot 5. With respect to other authorities to which the 1990 EIS was forwarded, the Applicant Council's town planner's report of 12 February 1991 (Exhibit R-1, p 332) lists no less than eight State agencies/authorities/departments which were sent that document. The planner's report then provides a summary of these agencies' responses (Exhibit R-1, pp 333-334). To subsequently find the 1991 Consent, as the Company Respondents would have it, extending the area allowed for extractive activity far beyond that proposed in Lot 5, potentially to 52.5 ha across all of Lots 5 and 6, would never be acceptable in practice or in principle when responding persons and agencies believed that the proposal described in the 1990 EIS was that which they should consider. That suggested by the Company Respondents must surely be an undesirable outcome from a public policy perspective and an unacceptable interpretation of the legal instruments intended to constrain the development to that ostensibly proposed and approved, rather than some amorphous undefined expansion that has incrementally come about in a manner never considered by the public or by relevant authorities and extended into areas never contemplated.

[21]

The power to determine DA in 1991

Under the EPA Act as at 1991, the power for a consent authority to determine a DA by granting consent (either unconditionally or subject to conditions) or refusing consent was set out in s 91. However, if a DA was made by or on behalf of the Crown or a prescribed person, s 91A was applicable to the determination of the DA. In full, s 91A was in the following terms: Determination of development application 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 - (a) shall not refuse its consent to the application except with the written approval of the Minister; and (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 - (a) the Minister does not approve the refusal of consent to a development application; or (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.
In order to determine who was a prescribed person and what the prescribed period was one would have to have had recourse to the applicable clause of the Environmental Planning and Assessment Regulation 1980 (EPA Regulation): being cl 41B. That clause provided as follows: Development applications by Crown etc. 41B (1) For the purposes of section 91A(1) of the Act, the following persons are prescribed: (a) a public authority (not being a council); (b) a public utility; … (3) For the purposes of section 91A(2) of the Act, the prescribed period is 40 days.
It is also relevant to identify that a public authority was defined under s 4 of the EPA Act to mean "a public or local authority constituted by or under any Act, a government Department or a statutory body representing the Crown, and includes a person exercising functions on behalf of that authority, Department or body".

[22]

The regulation of existing uses

The EPA Act has regulated existing uses since coming into force. Whilst the historical versions of the relevant operative sections are relevant for the purposes of this judgment, only the current provisions are set out below.
Division 10 of Pt 4 of the EPA Act sets out the provisions governing the continuance of and limitations on existing uses. The definition of the term "existing use" is set out in s 106, the provisions of which "…are definitional only: they have no operative effect": Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 at [39] and BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 at [23]. "Existing use" is defined under s 106 to mean: 106 Definition of "existing use" In this Division, existing use means: (a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4 of this Part, have the effect of prohibiting that use, and (b) the use of a building, work or land: (i) for which development consent was granted before the commencement of a provision of an environmental planning instrument having the effect of prohibiting the use, and (ii) that has been carried out, within one year after the date on which that provision commenced, in accordance with the terms of the consent and to such an extent as to ensure (apart from that provision) that the development consent would not lapse.
Sections 107-109B are the operative existing use provisions of the EPA Act. For these proceedings, the provisions in ss 107 and 109 are of particular relevance: 107 Continuance of and limitations on existing use (1) Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of an existing use, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is to be presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months. 109 Continuance of and limitations on other lawful uses (1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained. (2) Nothing in subsection (1) authorises: (a) any alteration or extension to or rebuilding of a building or work, or (b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or (c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or (d) the continuance of the use therein mentioned in breach of any consent in force under this Act in relation to that use or any condition imposed or applicable to that consent or in breach of any condition referred to in section 80A (1) (b), or (e) the continuance of the use therein mentioned where that use is abandoned. (3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months."

[23]

Powers of the Court to make orders

Division 3 of Pt 6 of the EPA Act makes provision for orders of the Court. For the purposes of this judgment it is convenient to set out ss 122-124 (now ss 9.44 - 9.46): 122 Definitions In this Division: (a) a reference to a breach of this Act is a reference to: (i) a contravention of or failure to comply with this Act, and (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) a reference to this Act includes a reference to the following: (i) the regulations, (ii) an environmental planning instrument, (iii) a consent granted under this Act, including a condition subject to which a consent is granted, (iv) a complying development certificate, including a condition subject to which a complying development certificate is granted, (v) an order under Division 2A, (vi) a planning agreement referred to in section 93F. 123 Restraint etc of breaches of this Act (1) Any person may bring proceedings in the Court for an order to remedy or restrain a breach of this Act, whether or not any right of that person has been or may be infringed by or as a consequence of that breach. (2) Proceedings under this section may be brought by a person on his or her own behalf or on behalf of himself or herself and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) (Repealed) 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. (2) Without limiting the powers of the Court under subsection (1), an order made under that subsection may: (a) where the breach of this Act comprises a use of any building, work or land - restrain that use, (b) where the breach of this Act comprises the erection of a building or the carrying out of a work - require the demolition or removal of that building or work, or (c) where the breach of this Act has the effect of altering the condition or state of any building, work or land - require the reinstatement, so far as is practicable, of that building, work or land to the condition or state the building, work or land was in immediately before the breach was committed. (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. (4) The functions of the Court under this Division are in addition to and not in derogation from any other functions of the Court. (5) Nothing in this section affects the provisions of Division 3 of Part 3 of the Land and Environment Court Act 1979.

[24]

Environment protection licences

Under the POEO Act, an EPL may be issued to authorise, inter alia, the carrying out of scheduled activities that require such a licence. Chapter 3 of the POEO Act sets out the regime relating to EPLs. For this case, the relevant sections (as at the material time in 2007) under Pts 3.1, 3.2 and 3.3 of Ch 3 are important.
First, Pt 3.1 sets out the types of licences that may be issued and the matters which the appropriate regulatory authority is required to take into account in exercising its functions under Ch 3. To this end, ss 43 and 45 (as at the material time in 2007) provide as follows: 43 Types of licences Environment protection licences may be issued for the following purposes: (a) to authorise the carrying out of scheduled development work at any premises, as required under section 47, (b) to authorise the carrying out of scheduled activities at any premises, as required under section 48, (c) to authorise the carrying out of scheduled activities not related to premises, as required under section 49, (d) to control the carrying out of non-scheduled activities for the purpose of regulating water pollution resulting from any such activity, as referred to in section 122. Note. Scheduled activities for which a licence is required are set out in Schedule 1. Scheduled development work for which a licence is required is defined in section 47 (being generally work on premises, at which scheduled activities are not carried on, that is designed to enable scheduled activities to be carried on at the premises). This Act permits (but does not require) a licence to be issued for a non-scheduled activity - compliance with the conditions of the licence provides a defence to the offence of polluting waters under section 120. 45 Matters to be taken into consideration in licensing functions In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance: (a) any protection of the environment policies, (b) the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991, (c) the pollution caused or likely to be caused by the carrying out of the activity or work concerned and the likely impact of that pollution on the environment, (d) the practical measures that could be taken: (i) to prevent, control, abate or mitigate that pollution, and (ii) to protect the environment from harm as a result of that pollution, (e) any relevant green offset scheme, green offset works or tradeable emission scheme or other scheme involving economic measures, as referred to in Part 9.3, (f) whether the person concerned is a fit and proper person (as referred to in section 83), (f1) in relation to an activity or work that causes, is likely to cause or has caused water pollution: (i) the environmental values of water affected by the activity or work, and (ii) the practical measures that could be taken to restore or maintain those environmental values, (g) in connection with a licence application relating to the control of the carrying out of non-scheduled activities for the purpose of regulating water pollution - whether the applicant is the appropriate person to hold the licence having regard to the role of the applicant in connection with the carrying out of those activities, (h) in connection with a licence application - any documents accompanying the application, (i) in connection with a licence application - any relevant environmental impact statement, or other statement of environmental effects, prepared or obtained by the applicant under the Environmental Planning and Assessment Act 1979, (j) in connection with a licence application - any relevant species impact statement prepared or obtained by the applicant under the Threatened Species Conservation Act 1995 or Part 7A of the Fisheries Management Act 1994, (k) in connection with a licence application, any waste strategy in force under the Waste Avoidance and Resource Recovery Act 2001, (l) in connection with a licence application: (i) any public submission in relation to the licence application received by the appropriate regulatory authority under this Act, and (ii) any public submission that has been made under the Environmental Planning and Assessment Act 1979, in connection with the activity to which the licence application relates, and that has been received by the appropriate regulatory authority, (m) if the appropriate regulatory authority is not the EPA - any guidelines issued by the EPA to the authority relating to the exercise of functions under this Chapter.
Secondly, Pt 3.2 sets out the licensing requirement, and relevant offences, for scheduled development work and scheduled activities. Relevantly, s 50 (as at the material time in 2007) sets out provisions governing the timing of licensing of development requiring consent under the EPA Act: 50 Timing of licensing of development requiring consent under EP&A Act (1) Licensing of development controlled under EP&A Act This section applies to development that cannot be carried out without development consent under the Environmental Planning and Assessment Act 1979. This development is called controlled development in this section. (2) Licence to be concurrent A licence that relates to controlled development must not be granted or varied (other than on the initiative of the EPA) by the appropriate regulatory authority, unless development consent has been granted for the controlled development. However, this section does not prevent the consideration of a licence application by the appropriate regulatory authority before development consent is granted. (3) Existing use Without limiting the above, this section does not apply to the extent that development consent is not necessary under the Environmental Planning and Assessment Act 1979 because of an existing use. (4) Definitions In this section: development has the same meaning as in the Environmental Planning and Assessment Act 1979. development consent means consent under Part 4 of the Environmental Planning and Assessment Act 1979, and includes approval to carry out a project under Part 3A of that Act. existing use has the same meaning as in Division 10 of Part 4 of the Environmental Planning and Assessment Act 1979.
Thirdly, Pt 3.3 of the POEO Act contains those provisions governing the issue, transfer and variation of licences. As will be seen below, s 58 (as at the material time in 2007) is a critical section in these proceedings: 58 Variation of licences (1) The appropriate regulatory authority may vary a licence (including the conditions of a licence). (2) A variation includes the attaching of a condition to a licence (whether or not any conditions have already been attached), the substitution of a condition, the omission of a condition or the amendment of a condition. (3) A licence may be varied on application by the holder of the licence or on the initiative of the appropriate regulatory authority. (4) A licence may be varied at any time during its currency, including on its being transferred to another person. (5) A licence is varied by notice in writing given to the holder of the licence. (6) If: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the Environmental Planning and Assessment Act 1979, the appropriate regulatory authority is to invite and consider public submissions before it varies the licence.

[25]

The Applicant Council's claim of incorporation

The Applicant Council prefaced its submissions - concerning its claim that the 1990 DA and 1990 EIS should be taken to be incorporated into the 1991 Consent - by setting out the relevant legal principles. In particular, the Applicant Council relied upon the principles set out by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (Allandale) at [24]-[25] (per MacFarlan JA); at [42]-[48] (per Meagher JA); and at [154]-[163] (per Ward JA). Of the relevant principles, the Applicant Council emphasised the following (in its words): 1. a development consent is to be construed according to its terms, having regard to its enduring nature, namely that it is not personal to the Applicant Council but is a public document operating in rem for the benefit of third parties such as subsequent owners, occupiers and security holders, and in some respects is equivalent to a document of title: citing House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [23]; 2. the nature and extent of the approved development must be determined by construing the document of approval, including any plans or other documents which it incorporates, aided only by that evidence admissible in relation to construction which establishes, or helps to establish, the true meaning of the document as the unilateral act of the relevant authority, not the result of a bilateral transaction between the applicant and the council: citing Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 at 637; and 3. in construing a development consent, reference may be made to documents other than the consent itself if those documents or parts of them, are incorporated into the consent expressly or by necessary implication: citing Allandale at [43] and the cases cited therein.
The Applicant Council commenced its submissions by contending that the Court should, in undertaking the incorporation inquiry, not restrict itself to considering the 1991 Consent. Rather, it was submitted that the Court should have regard to the terms of the Notice (Exhibit R-1, pp 355-363) and the letter from the Applicant Council dated 21 June 1991 notifying the SRA of its decision to adopt amended conditions of consent (Exhibit R-1, p 391). The Applicant Council contended that such an approach would be consistent with the relevant authorities: citing Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 (Winn) at [28], [148] and [198]-[201]; Allandale at [21], [27], [49] and following, and [169] and following; Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 at [47]; Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 405 and 408; Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347; [2002] NSWLEC 45 at [6]-[20]; and Tipfast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; [2002] NSWLEC 85 at [8] and following.

[26]

Express incorporation of the 1990 DA

The Applicant Council initially did not assert that the 1991 Consent expressly incorporated any extrinsic material. However, in closing, the Applicant Council advanced such an argument in the alternative to its claim of incorporation by necessary implication.
The Applicant Council submitted that the 1990 DA was expressly incorporated in the 1991 Consent. It was conceded by the Applicant Council that the mere reference to a DA in a development consent would not usually suffice to constitute express incorporation: citing Allandale at [45] and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 at [39]-[40]. However, the Applicant Council submitted that this is not a case where there has been a mere reference to the DA in the development consent. Rather, the Applicant Council argued that the nature of the references to the 1990 DA in the Notice demonstrate that the 1990 DA was incorporated in the 1991 Consent.
The Applicant Council submitted that the following attributes of the Notice are of significance to the determination of express incorporation. First, the Notice was, under s 92 of the EPA Act, required to be given to the Applicant Council in the prescribed form and manner. Secondly, the Notice was issued by the Applicant Council in substantial compliance with the prescribed form (EPA Regulation: cl 44 and Form in Sch 4). Thirdly, the Notice refers to the 1990 DA by its reference number at the top of the notice of determination. Fourthly, the Notice contained the prescribed sentence (although supplemented by the underlined words) of "[p]ursuant to section 92 of the Act, notice is hereby given of the Determination by Council (the consent authority) of the Development Application No 171/90/79 the details of which, and of the land involved, follow". Fifthly, the Notice provided formal details of the development including a description of the development as "[a]n Extractive Industry (Designated Development) being a quarry, winning material primarily for railway ballast". Sixthly, the Notice also referred to the 1990 DA under the heading "Determination" on the front page in the sentence: "In accordance with the provisions of clause 9 of the Dungog Local Environmental Plan 1990, and the provisions of Part IV of the Environmental Planning & Assessment Act 1979, this development application has been determined by the granting of consent subject to the conditions detailed in Annexure 'A' - Schedule 5 to this notice".
Taking into account these attributes of the Notice, the Applicant Council submitted that the present case is analogous to that of Loreto Normanhurst Association Inc v Hornsby Shire Council. In that decision, at [20], the Applicant Council said that the Court held - on the basis of comparable references (no different in kind or species) to the DAs in the notices of determination - that each of the development consents expressly incorporated the DA. The Applicant Council said that the Court, in so finding, placed weight "on the very comprehensive and detailed statutory regime contained in the EP&A Act and Regulation for the making of a development application and for the determination of that application and the public availability of [the] register of development consents".
The Applicant Council noted that Biscoe AJ had observed, in Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322; [2008] NSWSC 876 at [396], that this decision was cited with apparent approval in Council of the City of Sydney v Pink Star Entertainment Pty Ltd (2008) 160 LGERA 251; [2008] NSWLEC 176 at [86]; Tipfast Pty Ltd v South Sydney City Council at [22] and Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398 at [52].
Finally, in identifying some tension between Loreto Normanhurst Association Inc v Hornsby Shire Council and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd, the Applicant Council sought to distinguish the present case from the latter decision. The Applicant Council noted that Basten JA expressed some reservations about the broad approach taken by the primary judge with respect to the question of express incorporation. Yet, it was submitted that this reservation arose in circumstances where the documents found by the primary judge to be expressly incorporated into the development consent were incorporated by a covering letter to the consent rather than the consent itself: citing at [40].
The Applicant Council argued that, consistently with Loreto Normanhurst Association Inc v Hornsby Shire Council, the present case is distinguished because the relevant references to the DA were contained in the formal Notice. Moreover, the Applicant Council also referred to the decision of the High Court overturning the Court of Appeal decision (on a separate ground), Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 156 LGERA 283; [2007] HCA 50. The Applicant Council submitted that the following passage from that decision, at [14], highlights the significance of a DA in the context of construing a development consent: "A development consent thus hinged about the application made by the party seeking consent. It was the application that marked out the boundaries of the consent sought. The consenting authority responded to what was sought by granting or refusing consent and, if consent was granted, doing so either unconditionally or subject to conditions."
Thus, the Applicant Council submitted that the Court should, in accordance with the principle of comity, follow Loreto Normanhurst Association Inc v Hornsby Shire Council. The Applicant Council suggested that Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd and Loreto Normanhurst Association Inc v Hornsby Shire Council could be reconciled by adopting the position that a mere reference to the DA in, for example, a letter will be insufficient but that references in a formal notice of determination conforming with the relevant legislation and regulation may be sufficient.

[27]

Incorporation by necessary implication

The Applicant Council contended that the Court should take the 1990 DA and 1990 EIS to be incorporated in the 1991 Consent by necessary implication. The Applicant Council did not contend that the 1990 EIS should be incorporated at large, a stance with which, it will be seen, the Court concurs. Rather, the Applicant Council argued that both the 1990 DA and 1990 EIS must properly be incorporated for five primary reasons.
First, to resolve uncertainty and ambiguity as to the meaning - that is to say, the location and area - of "the quarry" approved by the 1991 Consent and "the proposed quarry site" referred to in condition 2 of the 1991 Consent. Second, to identify the environmental safeguards referred to in condition 7(b) of the 1991 Consent. Third, to resolve any uncertainty regarding the limitations imposed by condition 6 of the 1991 Consent on road transportation. Fourth, to enable condition 1 to be understood, complied with and enforced. Fifth, to resolve any ambiguity about what was meant by the description of the approved development as "[a]n extractive industry, being a quarry winning material primarily for railway ballast".
In making its supporting submissions with respect to its first reason justifying incorporation, the Applicant Council focused on applying Allandale to the present circumstances. The Applicant Council submitted that the facts of that decision were somewhat analogous to the present circumstances. According to the Applicant Council, the underlying question in Allandale was whether the development consent only approved quarrying within an area delineated and described as the "Proposed Quarrying Area" on a document attached to the 1990 DA and described as "the Indicative Plan". The majority of the Court of Appeal held that the primary judge had not erred in construing the development consent by reference to the indicative plan because (as the primary judge found) "the consent standing alone was not capable of proper construction as to some of its necessary and important details".
The Applicant Council submitted that the principal question for the Court in the present case is that which was articulated by Ward JA in Allandale at [186]: "However, the question is whether (having regard to the enduring nature of the consent) a reader would be able to determine on the face of the letter and with reference to the physical features of the land where quarrying could lawfully be conducted. If not, or if there is some ambiguity as to that issue, then the authorities referred to earlier would permit reference to just such material as that to which [the primary judge] had regard."
It was said by the Applicant Council that the "letter" should be understood to be the consent authority's letter notifying the proponent of the grant of development consent and that the relevant inquiry also encompasses "uncertainty".
The Applicant Council argued that if the Court were to assume the position of a reader of the 1991 Consent in this case, the Court would conclude that the 1991 Consent is ambiguous (or uncertain) as to where quarrying may lawfully be conducted. The Applicant Council submitted that the 1991 Consent is ambiguous or uncertain because it refers to Lots 5 and 6 and nominates an area of 52.5 ha without otherwise indicating the location or area of the approved quarrying activity. That is to say, the 1991 Consent, as a stand-alone document, might appear to approve quarrying over an unidentified and indeterminate 52.5 ha area. Without reference to any other document, the Applicant Council said that it is unclear whether this 52.5 ha area constitutes the cumulative area of Lots 5 and 6. In this respect, the Applicant Council said that the judgment of Ward JA in Allandale at [185] supported the proposition that, in the present circumstances, the reference to Lots 5 and 6 in the description of the land in a development consent or notification letter should be taken to mean no more than the allotments within which the development has to take place and not that the development will occur on all of that land (T988).
Additionally, the Applicant Council said that condition 2 of the 1991 Consent also creates uncertainty and ambiguity. This condition provided that the SRA, within six months of the granting of the 1991 Consent, was required to submit to the Applicant Council "detailed plans and specifications of proposed erosion and sediment control measures, of proposed dams for soil and water conservation and of rehabilitation of both the existing quarry site on the generally eastern side of Station Street and the proposed quarry site on lots 5 and 6 in DP 242210". The Applicant Council asked rhetorically "what is 'the proposed quarry site on lots 5 and 6?'" and submitted that the terms of the 1991 Consent and conditions of consent "calls for something to clarify what is 'the quarry'".
The Applicant Council rejected the argument that the 1991 Consent unambiguously approves quarrying on the entirety of both Lots 5 and 6 because the allotments were expressly referred to next to the form word "property" on the 1991 Consent. The Applicant Council submitted that, analogously to the decision of Ward JA in Allandale, the better construction is that this identified "… the overall boundaries of the land on which quarrying operations were permitted to be carried out in accordance with the conditions of consent (ie, not as consent to quarrying across the whole of the land": quoting that decision at [185]).
With respect to its second and third reasons justifying incorporation, the Applicant Council contended that reference to the 1990 EIS is necessary in order to understand conditions 7(b) and 6 of the 1991 Consent. The Applicant Council submitted that the 1990 EIS provided the necessary information to resolve the inherent ambiguity in condition 7(b) as to what the "environmental safeguards proposed for the development" are. In fact, the Applicant Council submitted that the effect of condition 7(b) is equivalent to it reading "you must carry out the proposal in accordance with your environmental impact statement". Similarly, it was submitted that condition 6 "reasonably requires reference to the [1990 EIS] in order to remove any possible ambiguity".
The Applicant Council conceded that there is a "line of authorities" commencing with Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 that express reservations regarding the incorporation of collateral documents into development consents; on the basis that it would create difficulties and inconvenience if later purchasers of property could not rely on the terms of a development consent (a document in rem) alone. Whilst an important consideration, the Applicant Council submitted that this is not a paramount or determinative consideration: citing, for example, Allandale. Moreover, the Applicant Council submitted that such a policy concern is "more apparent than real" in the present circumstances "where the development is a designated development and the document sought to be incorporated is the [1990 EIS] which was required to include information about the proposal; certified as accurate; notified; exhibited and circulated to both members of the public and government agencies".
In this context, the Applicant Council distinguished the circumstances with that of, for example, a letter between the proponent and the consent authority. The Applicant Council asserted that "[i]n that sense, this is a stronger case in favour of incorporation than [Allandale]". In fact, the Applicant Council suggested that, in this case, the countervailing policy considerations of the integrity of the DA public participation process, which relies upon the accuracy of the EIS, might outweigh policy concerns regarding incorporation.
The Applicant Council also contended that the Court should, in determining the issue of incorporation, recognise that the 1990 DA marks out the boundaries of the 1991 Consent: citing, although with caution, Weston Aluminium Pty Ltd v Environment Protection Authority at [14]. In this respect, the Applicant Council submitted that the Court should adopt a construction of the development which assumes the validity of the 1991 Consent.
Finally, the Applicant Council submitted that if the Court decided to only incorporate the 1990 DA into the 1991 Consent, then it would necessarily follow - on the particular facts - that the 1990 EIS would be incorporated. This is because, so the Applicant Council reasoned, the 1990 DA expressly refers to and incorporates the 1990 EIS. Additionally, the Applicant Council said that the 1990 EIS is necessary to resolve the ambiguity and uncertainty as to what the "Area of Land" being "ca 10 ha" referred to in the 1990 DA means (cf the 52.5 ha area referred to in the 1991 Consent). Indeed, the Applicant Council said that the discrepancy between these two different areas demonstrates that the area approved for quarrying is a different and smaller area to that of the entirety of Lots 5 and 6.

[28]

The Company Respondents' rebuttal of the claim of incorporation

The Company Respondents prefaced their submissions concerning the claim of incorporation by outlining at least 14 of the relevant principles. The Company Respondents stated that these principles have been identified and restated in the decisions of Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 at [93] and Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 at [39]-[48]. The relevant principles which the Company Respondents drew from the decision of Allandale are as follows (in their words): 1. as a general rule, a development consent, being a public document operating in rem for the benefit of third parties, should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it. That extrinsic evidence is not led to vary the consent but to identify the thing or place referred to it. Evidence as to the nature or physical features of the land may also be admissible for that purpose, at least those features observable by a third party at the time of the consent: at [44]; 2. plans and other documents may be incorporated in a development consent expressly or by necessary implication: at [24], [43]-[48] and [153]-[163]; 3. a document attached to a development consent or referred to in it for the purpose of identifying or describing something dealt with in the consent, will for that reason be expressly incorporated in the consent: at [45]; 4. a mere reference in a development consent to another document, such as a DA, will not usually be sufficient to incorporate that document into the consent: at [45] and [157]-[158]; 5. the difficulty arising from incorporating general statements of intention into the consent may not arise where the incorporation need only be for the limited purpose of determining that which is unclear on the face of the 1991 Consent: at [196]; and 6. ultimately, the test of necessary implication is whether, in the absence of express incorporation, the consent is complete on its face, or whether it is ambiguous or otherwise such that a reader of it, or a person acquainted with the physical features of the land, would conclude that recourse to other documents would be necessary to give it a sensible meaning: at [26] (per Macfarlan JA), see also at [186] (per Ward JA).
With respect to the immediately preceding principle, the Company Respondents submitted that, contrary to the Applicant Council's submissions, "[t]he test is not whether it is possible to 'gain a full appreciation of the terms of the approval from the notice of consent alone'".
The Company Respondents' rebuttal to the Applicant Council's claim of incorporation is that, on a proper application of the above principles, the 1990 DA and 1990 EIS should not be incorporated into the 1991 Consent, whether expressly or by necessary implication. The Company Respondents challenged the reasons that the Applicant Council provided in support of its claim of incorporation.
First, the Company Respondents denied that there was any ambiguity or uncertainty as to the quarrying activities approved by the 1991 Consent warranting recourse to extrinsic materials. In the Company Respondents' words, the 1991 Consent "…says what it wants to say … There's no call to go outside the four corners of this document to interpret it". The Company Respondents submitted that the 1991 Consent (which they contended means the February Resolution) purports to approve "an extractive industry being a quarry … on lots 5 and 6 in DP 242210 of Station Street …" Hence, in contrast to the facts of Allandale (at [55] and [189]-[192]), the Company Respondents contended that this is not a case where references to a specifically designated and definite area - that was not the whole of the site - in the 1991 Consent could not otherwise be identified than by having recourse to extrinsic materials.
The Company Respondents submitted that the conditions of the 1991 Consent (if validly imposed) support the conclusion that there is no ambiguity as to the approved quarry area of the entirety of Lots 5 and 6. With respect to condition 2(a), the Company Respondents said that no ambiguity or uncertainty arises as to the meaning of "the proposed quarry site" because this "is simply drawing a distinction between 'the existing quarry site' on the generally eastern side of Station Street (ie the 'old' quarry) with 'the proposed quarry site on lots 5 and 6' (ie the 'new' quarry)". The Company Respondents submitted that the references to "residences outside the quarry area" in condition 8 and the prohibition of quarrying operations "within 20 metres of any external boundary of the land" in condition 17 also confirm that the approved area for quarrying was (effectively) the entirety of Lots 5 and 6.
The Company Respondents relied upon the decision of Winn which was said to be "on all fours with the present case" (T1,120), in support of their position. In that decision, Stein JA found that it was necessary to incorporate the relevant DA for the purpose of identifying what development had been approved. However, Stein JA did not incorporate a relevant letter that provided details of the proposed method and location of mining, because "[t]he consent and its conditions are sufficient to delineate what it was that the council was approving": quoting Winn at [202]. The Company Respondents submitted that the present case is analogous in that there is no need to incorporate the 1990 EIS because the 1991 Consent "clearly identifies both the land to which it relates and the use to be carried out on the land". Furthermore, the Company Respondents said that this decision also stands for the general principle that - because of the nature of a development consent as an enduring document operating in rem - "whatever was done for whatever purposes prior to the grant of consent does not affect the construction of the consent": citing, inter alia, House of Peace Pty Ltd v Bankstown City Council at [23] and, by analogy, Hillpalm Pty Ltd.
Conversely, in response to the Applicant Council's reliance on Loreto Normanhurst Association Inc v Hornsby Shire Council, the Company Respondents respectfully submitted that "insofar as it appears to stand for the proposition that the mere reference to a development application in the development consent has the effect of incorporating the development application into the consent [it] is plainly wrong and should not be followed": citing at [13], [17] and [20]. In response to the observation of Biscoe AJ in Neighbourhood Association DP 285249 v Watson at [398] that the decision had been cited with approval in at least three subsequent decisions, the Company Respondents argued that this observation "does not bear close scrutiny".
The Company Respondents submitted that the relevant decisions do not stand for the principle for which Loreto Normanhurst Association Inc v Hornsby Shire Council is cited by the Applicant Council. The Company Respondents submitted that the Court should not follow Loreto Normanhurst Association Inc v Hornsby Shire Council: citing Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd at [39]; Allandale at [24], [43], [46], [154], [156] and [157]; Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200 at [65]; Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services (No 3) [2012] NSWLEC 57 at [87]-[89]; and John Whitehouse, Development and Planning Law in New South Wales, (2012, CCH) at 1,087.
In any event, the Company Respondents submitted that the 1990 DA, if incorporated, unambiguously confirms that the 1991 Consent was granted for a quarry on Lots 5 and 6. Additionally, the Company Respondents asserted that the incorporation of the 1990 DA would not incorporate the 1990 EIS. The Company Respondents emphasised that the 1990 DA and the 1990 EIS are not in the same category of material under the EPA Act. The 1990 EIS is a document which accompanies the 1990 DA. Nevertheless, the Company Respondents said that it is of some significance that the certification at the commencement of the 1990 EIS described the development as the "extraction of rock" (Exhibit R-1, p 147).
Contrary to the submissions of the Applicant Council, the Company Respondents asserted that there are no authorities which support the position that the principles of incorporation should be applied less strictly in circumstances of designated DAs, which require the public exhibition of an EIS. The Company Respondents submitted that there is no warrant so to do. In fact, they argued that the 1991 Consent demonstrates that the Applicant Council consciously decided to regulate the development in a manner differently, to a certain extent, than that contemplated in the 1990 EIS (T1,099).
Secondly, the Company Respondents said that it is important, in determining whether the 1990 EIS is incorporated, to understand the purpose and requirements of an EIS. In this respect, the Company Respondents referred to the decision of AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391 at 401, in which it was said that the purpose of an EIS is "primarily, to ensure that the proponent of the activity takes a hard look at the environmental consequences of action or inaction". The Company Respondents drew attention to what it said was Cripps JA's consequent rejection (at 401) of the suggestion that the EIS itself could give rise to free-standing statutory obligations.
Additionally, the Company Respondents noted that an EIS also serves the purpose of bringing the environmental issues associated with proposed development to the attention of the public and the determining authorities: citing Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 at 417. As such, the Company Respondents submitted that regulatory breaches in preparing an EIS would not necessarily make a subsequent decision in the development consent process invalid. Ultimately, the Company Respondents asserted that the EIS is a decision-making tool and that its "role is exhausted once the decision is made": citing as context, inter alia, Helman v Byron Shire Council (1995) 87 LGERA 349 at 356 and Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 at [49]. The Company Respondents said that the representations in the 1990 EIS were not relied upon by the public. For instance, the Company Respondents submitted that the public were under no misapprehension as to the likely traffic impacts: "[w]hatever the representation in the EIS, they didn't believe it" (referring to contemporaneous objector evidence).
Thirdly, the Company Respondents addressed the issue of incorporation of the 1990 EIS by reference to the specific allegations of breach of the conditions of consent (if valid). The Company Respondents submitted that the reference in condition 7(b) to the "environmental safeguards proposed for the development and required by this consent and other statutory approvals" cannot incorporate the entire 1990 EIS into the 1991 Consent.
Contrary to the Applicant Council's position, the Company Respondents submitted that the environmental safeguards are only those required by the 1991 Consent or other statutory approvals. The Company Respondents submitted that this was the view taken by the SRA in its letter dated 15 April 1991. Taking into account the dictionary definition of safeguard as, relevantly, "something serving as a protection or defence, or ensuring safety" (Macquarie Dictionary (3rd ed 1997)), the Company Respondents submitted that condition 7(b) could only relate to specific measures to protect the environment. Therefore, it was submitted that, even at its highest, only the specific environmental protection and mitigation measures referred to in sections 3.8, 4.3, 4.4, 4.5 and 4.11 of the 1990 EIS could be incorporated into the 1991 Consent.
More generally, the Company Respondents submitted that even if it were deemed necessary to incorporate the 1990 EIS into the 1991 Consent to explain the conditions of consent, this could not be done "in the absence of the written approval of the SRA to the (implied) conditions which are said to arise from the incorporation of the EIS": citing s 91A of the EPA Act as it then was. Furthermore, the Company Respondents submitted that the Court should draw the inference that the Applicant Council chose not to do so from its omission to expressly include enforceable conditions of consent giving effect to various statements in the 1990 EIS (cf, for example, condition 6).

[30]

There was uncertainty on the face of the 1991 Consent

In this case it is necessary to carefully interpret the 1991 Consent due to ambiguity on the face of the operative consent documents. As mentioned at [8] in this judgment, for current purposes, the Court refers to the "operative consent document" as the 1991 Consent without, at this stage, particularisation. Later in this judgment the Court has analysed in close detail whether the record of the February Resolution or the May Resolution of the Applicant Council is the operative consent document. For present purposes, a more general reference to, simply, the operative consent document or the 1991 Consent will be sufficient.
As will be seen later, the Court accepts, in accordance with Pselletes v Randwick City Council, that it is the actual minutes of the resolution of a consent authority, rather than the subsequent written expression of that resolution, which is the primary instrument of consent to examine. However, where clarification is required of the precise parameters of the consent, the surrounding documentation may be referenced. The Court adopts and endorses each of the principles extrapolated from the authorities which are set out in the Court's summary of the Applicant Council's submissions in [70(a)]-[70(c)] earlier in this judgment. This is a case where it is necessary to reference - to incorporate - associated documents in order to redress what can be described as ambiguity on the face of the consent documentation. It is necessary to adopt this approach in this case, because the Court has formed the conclusion that back in 1990 and 1991, the SRA, the Applicant Council, other approval authorities and the wider community knew exactly what they were dealing with: a quarry for winning railway ballast from specifically identified land.
The Court has arrived at its conclusion as to what was proposed and what received consent in 1991 based on its interpretation of the extensive "paper trail" placed into evidence, comprising the many documents concerning and comprising the 1990 DA through to the many confirmatory documents that followed the May Resolution. In this judgment, where illustrative, the Court will return to some of these documents in order to explain the basis of its reasoning. With imprecise drafting on the face of some of the contemporaneous documentation, such as the Applicant Council's minutes and consequential letters and notices that followed the Applicant Council's resolutions, the Court is tasked to make sense of an unsatisfactory situation in order to determine the legal outcome of the process that was followed.
In this case, the Court is satisfied that documents, or at least, in some instances, parts of those documents as required, were impliedly incorporated into the 1991 Consent. In short, the 1991 Consent was made within a context - an understanding of a proposal that was before the Applicant Council at the point of decision-making. The loose drafting of the written expression of the resolutions, both within the minutes of the relevant Applicant Council meetings or in the subsequently issued letters constituting the Notice ought not, in the Court's opinion, be allowed to be misconstrued so as to condone the occurrence of development beyond that which the Applicant Council believed it had approved.
An example will assist in understanding this point. The Applicant Council's letter dated 7 March 1991, advising of the outcome of the 12 February 1991 Applicant Council meeting, which may have then been believed to be a "Notice to Applicant of Determination of a Development Application" (Exhibit R-1, p 355), lacks clarity. On its face the letter confirms what the Court has found, that the approved proposal was for "An Extractive Industry ('Designated Development') being a quarry, winning material primarily for railway ballast". The document then confirms that the relevant property embraces Lots 5 and 6 and the total area to which the 1991 Consent relates is of 52.5 ha. Without more information, such as reference to and incorporation of associated documentation, it might be said, as indeed the Company Respondents pressed, that the quarrying activity was thereby allowed over the entire 52.5 ha of Lots 5 and 6. On the contrary, as the Court has found and as was pressed by the Applicant Council, there were multiple indications in associated documentation, particularly in the 1990 EIS which formed part of the 1990 DA, that the proposal only ever envisaged actual extraction of stone for railway ballast from a designated confined area within Lot 5 of about 5 ha and associated development, such as a haul road, within Lot 6, also of about 5 ha.
Ideally the written expression of the purported 1991 Consent, in both the minutes of the ordinary meeting of the Applicant Council on 12 February 1991 (February Minutes) and the subsequent purported Notice referenced above, should have stated something like "at such locations within the property as designated on Plan 2". Better still, the purported 1991 Consent might have gone on to state: "and in accordance with the parameters described in the 1990 EIS which document is, together with the Plan, hereby incorporated". Additionally, proper drafting of approved conditions in the purported 1991 Consent should have incorporated, as the very first condition, the requisite plan and delineating document or documents confirming the parameters of that which was being approved. Where indicative plans form part of DAs, it is common practice for the first condition in a consent to require subsequent submission for approval, to the satisfaction of the consent authority, of a formal "settled" and detailed plan generally in accordance with the approved indicative plan. Absent such words, if there is a subsequent absence of scruples on the part of a consent holder, improper liberties can be taken. That is what the Court has found occurred in the instance of the Quarry.
Condition 7(b), as it appeared in each set of conditions the subject of the February Resolution and May Resolution, stated: "Ensure that all environmental safeguards proposed for the development and required by this consent and other statutory approvals are enforced" (emphasis added). I rhetorically ask, without incorporating the document that set out references to the environmental safeguards proposed for the development and the explanation for them, being the 1990 EIS, how is the reader to confidently know what safeguards were proposed? In this regard, the Court accepts the Applicant Council's submissions as summarised at [80] and following above as being correct, in effect that "you must carry out the proposal within the context set by the EIS".
In passing, I make the observation that the explanation in the 1990 EIS regarding the proposed approaches to the transportation of extracted rock, in particular via limited truck transportation, provided a context for Condition 6. That condition provided (in its 14 May 1991 iteration) that "The applicant shall not permit the transport of greatly more than 30% of quarry products by road, on an annual basis …". Given the environmental implications of exceeding that limitation on truck transportation, the restraint provided by Condition 6 is indisputably one of the environmental safeguards explained in the 1990 EIS.

[31]

A development consent must be construed in accordance with its enduring functions

As cited with approval at [25] in Allandale, it is instructive to consider the words of Spigelman CJ in Winn at [4] as follows: "25 The principles are consistent with, and give effect to, the approach to construction that Spigelman CJ identified in Winn v Director National Parks and Wildlife (2001) 130 LGERA 508 at [4]: 'A public document, such as a development consent, constitutes a unilateral act on the part of the consent authority expressed in a formal manner, required and intended to operate in accordance with its own terms. It has, as Stein JA points out, an inherent quality that it will be used to the benefit of subsequent owners and occupiers. It is also a document intended to be relied upon by many persons dealing with the original grantee, or assignees of the grantee, in such contexts as the provision of security. In some respects it is equivalent to a document of title. It must be construed in accordance with its enduring functions'".
So the Court asks itself: what was the "enduring function" sought to be achieved by the 1991 Consent? It was a consent to be used for the benefit of subsequent owners and occupiers, to be relied upon by many persons, such as the general public, effectively relying upon the 1991 Consent as a guarantee that what was proposed and then approved would be that which was known - identified with certainty - constraining excesses and permitting that which was actually proposed. In such circumstances, the Court is satisfied that the enduring function of the 1991 Consent was to allow a railway ballast quarry within a limited area of Lot 5, with ancillary works and activity within a limited area of Lot 6. The enduring function of the 1991 Consent was not to allow the consent grantee a liberty to pursue unrestrained quarrying for all purposes inexorably extending far beyond the area envisaged, massively increasing the quarrying activity at Martins Creek and so, potentially, significantly increasing consequential off-site impacts, such as truck traffic through the nearby historic town of Paterson.

[32]

Incorporation of certain documents is, by necessary implication, required to resolve ambiguity

So if the Court has correctly identified the enduring function of the 1991 Consent, how is the ambiguity arising from imprecise drafting to be addressed? The answer lies in accepting that this is a case where the incorporation of certain documents is required and justifiable.
In Allandale at [26] Macfarlan JA expressed the consequential question in the face of ambiguity as follows: "26 In light of these principles and the absence of any express incorporation of the Development Application documents in the letter of consent, the question for determination in the present case is whether the letter of consent is complete on its face, or whether it is ambiguous or otherwise such that a reader of it, or a person acquainted with the physical features of the land, would conclude that recourse to other documents such as the Development Application documents is necessary to give it a sensible meaning."
Meagher JA elaborated upon the circumstances where in previous cases extrinsic material had been referenced in order to overcome uncertainty or ambiguity in consents. Material to the case before me, His Honour's examination of the authorities in [43]-[48] is particularly instructive. "43 The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: see generally, Ryde Municipal Council v The Royal Ryde Homes (1970) 91 WN (NSW) 440 at 443; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; and the decisions of this Court in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; 48 NSWLR 498 at [23], Winn v Director-General of National Parks & Wildlife [2001] NSWCA 17; 130 LGERA 508 at [2], [4], [199]; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 at [1], [3], [35]-[36]. See also Adelaide Corporation Pty Ltd v City of Charles Sturt [2008] SASC 260; 162 LGERA 106 at [33], [49], [50]. 44 Evidence may also be led to identify a thing or place referred to in the consent: Slough Estates Ltd v Slough Borough Council (No 2) [1971] AC 958 at 962; Wyre Forest District Council v Secretary of State for the Environment [1990] 2 AC 357 at 370-371; Leichhardt Municipal Council v Terminals Pty Ltd (1970) 21 LGRA 44 at 50-51; Sydney Serviced Apartments Pty Ltd at 407. That evidence is not led to vary the consent but to identify the thing referred to in it. Evidence as to the nature or physical features of the land or site may also be admissible for that purpose: Parramatta City Council v Shell Co of Australia Ltd (1972) 2 NSWLR 632 at 637. 45 A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it: Szabo at 434; Sydney Serviced Apartments Pty Ltd at 408. However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself: Sydney Serviced Apartments Pty Ltd at 408; Alcoa at [39], [40]. 46 What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent: Royal Ryde Homes at 442-443; Szabo at 434; Winn at [5], [199]. A consent in those terms would not necessarily have the effect of incorporating all of the matters dealt with in the application. For example, general matters of fact or assertions of intention furnished or made for the purpose of informing the consent authority of the nature of the development, are not likely to be incorporated: Royal Ryde Homes at 442-443. In Winn, Stein J (with whom Spigelman CJ and Powell JA agreed on this point) rejected an argument that reference could be made to a letter to the consent authority which had accompanied the development application, on the basis that it was not necessary to have regard to the letter in order to resolve any uncertainty as to what the Council had approved. Specifically, that question was whether consents which authorised a mineral sands mine also authorised re-mining or deep mining. It was held that the consents and their conditions sufficiently delineated what the Council had approved: Winn at [5], [108], [199]-[202]. The argument for incorporation of the development application was not rejected on the basis that it was not permissible to refer to it even if the consent and conditions did not sufficiently delineate what had been approved. 47 In Stebbins v Lismore City Council (1988) 64 LGRA 132, the issue was whether the consent to a development application for a motel extension included the construction of an entrance or driveway from the motel to the new Bruxner Highway. This Court held (at 135) that the documents constituting the consent included a plan which had accompanied the development application and been marked up and returned with the notice advising of consent. The Court also considered the position on the basis that the notice alone constituted the consent. In that circumstance, the Court said (at 136) that recourse could be had to the application and its accompanying plan because it was not possible to gain a full appreciation of the terms of the approval from the notice of consent alone. In other words, it was permissible to look at the application and its accompanying plans if that was necessary to understand what had been approved. 48 A similar exposition of the circumstances in which reference may be made to documents which are not expressly incorporated in the consent, is given in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189 in the judgment of Doyle CJ (with whom Duggan and Anderson JJ agreed). In summarising the principles by reference to which a court should interpret a development consent, Doyle CJ said (at [45]) that it was usually the case that a consent 'will be meaningless' without reference to the plans and proposals submitted and, that being the position, it 'must be permissible' when deciding the 'meaning, scope and effect of a development authorisation, to refer to the plans or other documents constituting the proposal submitted for authorisation'. See also Adelaide Corporation Pty Ltd at [33], [49], [50]."
Given the circumstances before me, I find the abovementioned words of Doyle CJ in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189; [2004] SASC 373 at [45] particularly pertinent. Here, there is a need to "reference the plans and proposal submitted", particularly Plan 2 in the 1990 EIS, so that the "meaning, scope and effect" of the development allowed by the 1991 Consent can be given the necessary clarity.
Finally, Ward JA expressed the question as her Honour saw it at [184]-[186] and, relevantly to the case before me, arrived at her conclusion at [189]: "184 Turning then to the question whether there is ambiguity on the face of the development consent so as to permit reference to the extraneous material to which his Honour had regard, it is submitted for Allandale that the development consent clearly relates to the whole of the land referred to in the header ('Portions 198 and 177') and that the finding that the development consent does not disclose the size and location of the quarry in relation to the land portions nominated in the development application is inconsistent with the terms of the consent (the header to referring to the blue metal quarry 'on' Portions 198 and 177 and there being no specific geographical limitation on size or location). 185 This submission requires much weight to be placed on what is clearly a reference header to the letter (and not a condition of the consent as such). The header can also be read (and in my view this would be the better construction) as identifying the overall boundaries of the land on which quarrying operations were permitted to be carried on in accordance with the conditions of consent (i.e. not as consent to quarrying across the whole of that land). Once reference is made to the various conditions of consent (to which I refer below) that make reference to 'the quarry' in terms suggesting that it is a specifically identifiable location (and not the whole of the land in lots 198 and 177), there is at least an inconsistency with the proposition that the consent was to cover quarrying operations over the whole of the land, so as to give rise to a relevant ambiguity. 186 In substance, Allandale's construction of the development consent is that it permits quarrying on any part of those two portions of land, subject to the ability of the quarry wherever located (and arguably wherever it may be located from time to time) to comply with the written conditions of consent, and that it does not limit quarrying to a 40ha area. It is submitted by Mr Lancaster that the size of the quarrying operation (and its location) depends upon the position of the resource within those property boundaries and that, on a reasonable construction of the development consent, the size and location of the quarry in relation to the land portions are discernible. (In this regard it is submitted that Sheahan J incorrectly assumed that a consent must be comprehensive and must state in detail numerous features of the development for which approval has been given.) However, the question is whether (having regard to the enduring nature of the consent) a reader would be able to determine on the face of the letter and with reference to the physical features of the land where quarrying could lawfully be conducted. If not, or if there is some ambiguity as to that issue, then the authorities referred to earlier would permit reference to just such material as that to which his Honour had regard. … 189 A review of the consent conditions in my view leads to the conclusion that approval was being given for a quarry (or the quarrying operations) to be at a specific location (in particular, conditions (1) and (8) but also the various references to 'the quarry'). The inability to discern, from the consent alone where that location was to be, gives rise to an uncertainty warranting reference to the development application and accompanying documents for the limited purpose of establishing what was the location (and hence the size) of the quarry for which approval was being given. At the very least, the room for uncertainty as to whether the consent was relatively free-ranging or limited to a particular location is one that would permit reference to extraneous documents."
With minor editing to match the facts of this case, the last four paragraphs from the judgment of Ward JA, could be recast to become the very finding I make in this case regarding the necessity to incorporate the 1990 DA, with its 1990 EIS and Plan 2, so as to remove any uncertainty. Reinforced by the foregoing passages from Allandale, which I find apposite, the case before me is an instance where there is ambiguity on the face of the purported 1991 Consent which, for present purposes, embraces the 7 March 1991 formal "Notice to Applicant of Determination" (Exhibit R-1, pp 355-356) together with the final form of "approved" conditions (Exhibit R-1, pp 392-396) endorsed by the May Resolution appended to the Applicant Council's letter of 21 June 1991 (Exhibit R-1, p 391), requires rectification. As noted earlier, a consent has been judicially determined to be the resolution of the decision-maker, rather than the notice of that decision to the proponent.
The Court accepts that the 1991 Consent's final conditions, having received written approval from the SRA, were those in the form approved by the May Resolution (Exhibit R-1, pp 392-396), noting again that it is the Council resolution, as distinct from the subsequent documentary evidence of that resolution, that constitutes a consent. In summary, as described earlier, the ambiguity arises, somewhat akin to the situation in Allandale, from a lack of particularity on the face of the Council resolution purportedly granting the 1991 Consent. The documented conditions, as expressed, exacerbated the situation, given the capacity for them to be read as implying that the entire Lots 5 and 6 covering an area of 52.5 ha was being approved for actual quarrying extraction, rather than approval related to confined 5 ha areas within those lots, one with respect to extraction of rock and the other with respect to ancillary activity, specifically the haul road. Consequently, this was an instance of a consent which by necessary implication incorporated the 1990 DA documentation, including, specifically, the material referred to by the Applicant Council which I have summarised in [70]-[71] of this judgment.

[33]

Was there also express incorporation of extrinsic materials?

Accordingly, the Court embraces the Applicant Council's rationale for incorporating the 1990 DA and material portions of the 1990 EIS (as required), as summarised at [80] and following of the judgment. I have stressed the words "material portions" as I shall return to a discussion of the materiality of what is to be incorporated at [135] below.
In its submissions the Applicant Council addressed the question of whether the incorporation of the 1990 DA (with its 1990 EIS) was express, by necessary implication, or both. I have concluded that, at the very least, the incorporation was by necessary implication, however there was considerable merit to the Applicant Council's submission (as summarised at [72]-[79] of this judgment) that the incorporation was express. Given that I have found that there was incorporation by necessary implication, it is unnecessary for the Court to go further and finally decide whether the incorporation was also express. Nevertheless, and by way of observation, the Court considers the words "Development Application No. 171/90/79 the details of which, and of the land involved follow" as appearing in the "Notice to Applicant of Determination" document (Exhibit R-1, p 355) most probably confirm the proposition that the actual resolution of the Council did, in effect, expressly incorporate the 1990 DA. In this regard, the rationale for accepting that an application is expressly incorporated in a consent is appropriate in the circumstances explored by Bignold J in Loreto Normanhurst Association Inc v Hornsby Shire Council at [30] is relevant to this case. Further, I agree with the Applicant Council's analysis, summarised at [77]-[79] above regarding Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd as to how the judgment in that case can be reconciled.
It is important to understand that the purpose of the incorporation of the 1990 EIS is to provide clarity as to the limited nature of the development that was proposed and the context for environmental controls which would set the constraints upon the future operations. The conditions of consent, once granted, would provide the regulatory constraint while the incorporated 1990 EIS would provide the explanatory context for those conditions. As highlighted earlier in this judgment, in the context of the condition 6 requirement that "not greatly more than 30% of quarry products" were to be transported by road, the 1990 EIS provided the rationale for that condition, confirming the very nature of the proposed quarry as a railway ballast quarry, embracing the expectation that for such a quarry the other 70% of product would go by rail.

[35]

The purpose of an EIS in the development consent process

The Court also agrees with the Applicant Council's submissions summarised at [90] above regarding the policy considerations of the integrity of the DA public participatory process - which inherently relies upon the accuracy (perhaps even honesty) of an EIS - and, I would add, the utility of an EIS process itself. These are considerations which I stressed at the commencement of the Court's deliberations when I made reference to Kirby J in Hillpalm. To reiterate the point: accepting that it was clearly intended in 1991 that a valid development consent be issued, if the Court were to decide that the 1991 Consent was deficient for reasons of uncertainty but nevertheless decided it could not incorporate the application documents, the Court would effectively be putting aside the 1990 DA and 1990 EIS which "marked out the physical and operational boundaries of the proposal". Instead, if not potentially allowing a condition-less consent as the Company Respondents argued at par 20 of their closing submissions, the Court would then be allowing an approval of an unconstrained proposal never applied for (an unconditioned generic extractive industry rather than a railway ballast quarry), over an area much larger than ever envisaged (the whole 52.5 ha of the property rather than 5 ha designated for extraction), with likely significantly greater external impacts never examined. The unacceptable implications of such ramifications are clear.
In their submissions regarding the implications of incorporating the 1990 EIS (as I have summarised at [93]-[107] earlier in this judgment), the Company Respondents relied on a number of authorities which, in their submission, confirmed the status of an EIS as being a document created for a very different purpose than those DA documents created to satisfy EPA Act regulatory requirements. They stressed that the EIS was intended to "serve the purpose of bringing the environmental issues associated with proposed development to the attention of the public and determining authorities". They stressed that an EIS is simply a decision-making tool, with its function exhausted once the decision is made. The Court rejects the Company Respondents' proposition that the function of an EIS simply ends at the point of public exposure and consent authority consideration. As the Court has found in this case, the 1990 EIS remained a contextual descriptor of the proposal before the Council. The integrity of the process requires the 1990 EIS to be afforded the necessary reference status.
The propositions of the Company Respondents, if accepted, would make a mockery of the public participatory processes established by the legislation. I address the ramifications of these participatory processes later in this judgment, highlighting the importance of them. Accordingly, the Court rejects the propositions summarised earlier in [104], whereby the Company Respondents asserted that the representations in the 1990 EIS were not relied upon by the public. For instance, they said, the public were under no misapprehension as to the traffic impacts - "[w]hatever the representations in the EIS they didn't believe it". The Court can accept that there will often be scepticism across a community about assurances in a proponent's project documentation (indeed the Company Respondents highlighted some objectors' statements at the time of the review of the 1990 EIS opposing the then proposal expressing doubt about safeguard assurances). As it turns out, these concerned people have been proved to be insightful. Be that as it may, the Court does not accept the Company Respondents' argument as it would effectively mean the process is to disregarded or dismissed, with assurances in such documents being given little or no weight. Such a proposition would invite a deplorable disregard of the statutory scheme that requires compliance with the EIS process, a scheme which presumably the legislature saw merit in enacting.

[36]

An EIS does not impose conditions of consent

A further argument put by the Company Respondents against the prospect of incorporating the 1990 EIS, summarised earlier, was that it could not be done without the approval of the SRA as to do so without such approval would be contrary to s 91A of the EPA Act. In short, it was suggested there would be unapproved incorporated conditions. The Court rejects this argument for, as the Court has explained earlier, the 1990 EIS does not bring with it further conditions beyond those imposed via the 1991 Consent, rather the 1990 EIS brings clarity to the context of the conditions which were already approved by the SRA and thereafter imposed in the 1991 Consent. As already said, the incorporation of the 1990 DA and its associated 1990 EIS is by necessary implication, to remove ambiguity and uncertainty, so as to bring clarity as to how to read the 1991 Consent in its proper context.
So when "proposed environmental safeguards" are referred to in consent condition 7(b), the explanation of those safeguards and their intent can be found in the 1990 EIS. The Court has already pinpointed a couple of obvious examples: the limitation of the areas to be extracted and developed (which obviously means other areas were not proposed to be extracted) and the explanation of the modes of transporting the quarry product, specifically the proportion by road as distinct from rail. Both of these "controls" reflected in a proper and informed reading of the 1991 Consent are, in a general sense, environmental safeguards. In some respects the most all-encompassing proposed environmental safeguard would have been responsible adherence to the project as described in the 1990 EIS, spatially at the very least, to confine extractive activity to the 5 ha identified for that purpose in the 1990 EIS, rather than the 52.5 ha comprising the whole of Lots 5 and 6 which the Company Respondents now assert is available to them.
The Company Respondents argued that the 1991 Consent issued by the Applicant Council had to be read in context, as just one instrument amongst other approvals that were required from other authorities, such as from the then State Pollution Control Commission (SPCC) for environmental licences. In combination, it was argued, the many approvals negated any assertion of uncertainty as to what was actually approved by the 1991 Consent or what particularity was required in order to set development parameters. The Court is not convinced by that argument as all other approvals were issued within their respective legislative context addressing different issues, as such, they did not necessarily require cadastral or spatial particularity. In contrast, it is in the 1991 Consent - the primary planning instrument of control - that one should find the source of physical limitation with respect to area of defined development and limitations as to use and activity (such as extent - including depth - and quantum of extraction).

[37]

Only material portions of the 1990 EIS are taken to be incorporated

Accordingly it follows, if the 1991 Consent is only able to be properly construed by incorporating relevant components of the EIS into it, to provide the requisite contextual particularity (in effect informing the interpreter, whomever they might be - the public, other authorities, subsequent owners), specifically as an example, the precise area from which it was proposed that rock would be extracted, then so be it. The area the subject of the DA was set out (ie Lots 5 and 6) in the approval, but - materially - it didn't provide specificity as to the specific location of quarrying/roads etc If ambiguity is thereby removed, ensuring that which was approved was that which was sought, then it follows that the Applicant Council's submissions to the Court were correct. In this context, it is to be understood that the incorporation of the 1990 EIS, as with the other documents comprising the 1990 DA, is to bring clarity to the task of interpreting the 1991 Consent, to remove ambiguity where it exists. That is the extent of the materiality of the documentary material being incorporated. In short, the incorporation of this material does not bring new conditions or new restraints not otherwise approved by the SRA and thereafter imposed by way of the 1991 Consent, rather it is to resolve ambiguity in order to facilitate an understanding of the primary documents of consent: the resolutions of the Applicant Council setting out the conditions of consent together with the notices and letters communicating the Applicant Council's resolutions.
The Company Respondents argued that the Court should draw an inference from the Applicant Council's failure to expressly include specifically enforceable conditions giving effect to the 1990 EIS. It was argued that in circumstances where there is an absence of an express intent to incorporate the 1990 EIS, where such incorporation would have constrained the proposal to that described, it is to be inferred that the 1990 EIS was only put forward to explore possible parameters, and so can be put to one side. The Court declines to accept that such an inference is appropriate, that being the more improbable interpretative option. Additionally, as repeated in other places in this judgment, a degree of tolerance is justified when analysing the expression in documents drafted by staff of a small rural shire council over 25 years ago. The Company Respondents suggested that the failure to specifically include words on the face of the 1991 Consent confirming that the 1990 EIS was incorporated meant the Applicant Council deliberately chose to omit such an inclusion and therefore contemplated a consent to activities far beyond those set out in the 1990 EIS. With due respect to the ingenuity of the argument, such a suggestion stretches credibility. The implication that the Applicant Council was condoning, by virtue of its "silence", a project with, for instance, extraction extending far beyond the 5 ha limit set out in the 1990 EIS to potentially 52.5 ha, must be treated with incredulity.
In concluding this analysis of the respective arguments submitted by the parties with respect to this first issue regarding incorporation, as I said at the outset, the Court has considered all the evidence placed before it, submissions put, and the various authorities respectively cited therein. The Court has not found any of the Company Respondents' arguments persuasive, accordingly it adopts the conclusions submitted by the Applicant Council in its submissions.

[39]

The Applicant Council's claim that the extraction operations on Lot 6 (and on part of Lot 5) are unlawful

The Applicant Council claimed that the 1991 Consent does not approve the use of Lot 6 for the purpose of extractive operations but only approves the construction and use of a haul road on Lot 6. Consequently, given that the Company Respondents are extracting rock from Lot 6, the Applicant Council alleged that the Company Respondents have contravened s 76A(1) of the EPA Act. Similarly, the Applicant Council claimed that the 1991 Consent only approved the use of a defined 5 ha area of Lot 5 to a particular depth as identified on Plan 2 (an attachment to the 1990 EIS: Exhibit R-1, p 231). The Applicant Council alleged that the use of most of Lot 5 by the Company Respondents (that area beyond the delineated area on Plan 2) is similarly unlawful.
The Applicant Council contended that the evidence consistent with the proposition that the proposed location of the quarry area was within Lot 5 (even if, contrary to the Applicant Council's submissions, the edge of the quarry extended onto Lot 6) "is overwhelming". The Applicant Council asserted that the proposal of the SRA, contained within the 1990 DA and 1990 EIS, was for a quarry within the delineated area of Lot 5 depicted on Plan 2. Thus, the Applicant Council rejected that the proposal was to quarry across the whole of the 52 ha area comprising Lots 5 and 6.
In support of this claim, the Applicant Council relied upon the following evidence. First, the Applicant Council submitted that the identification of the proposed development location as being an area of "ca. 10ha" in the 1990 DA was given specificity in the 1990 EIS, which was said to indicate that the proposed quarry would comprise 5 ha and that the haul roads and setbacks a further 5 ha (Exhibit R-1, pp 150 and 200). Secondly, the Applicant Council quoted the following extract from the 1990 EIS which it said further identified the area of the proposed development: "[t]he quarry will be developed on Lot 5 … Plan 2 shows the location of the proposed quarry, haul road and details of the quarry faces and benches" (Exhibit R-1, p 160). Thirdly, the Applicant Council said that Plan 2 does, in accordance with the above statement, show the location of the proposed quarry and haul road and details of the quarry faces and benches. Relevantly, the Applicant Council asserted that Plan 2 shows the proposed quarry to be located within a delineated area of Lot 5. Fourthly, the Applicant Council said that the 1990 EIS recognised that the quarry was for a defined maximum area in statements such as "[t]he high point is within the set back from the property boundary and not subject to quarrying".
The Applicant Council submitted that the particular depiction of the quarry floor as being within Lot 5 on Plan 2 does not mean that the quarry face would extend onto Lot 6 if benched and battered. The Applicant Council contended that such an interpretation of Plan 2 was inconsistent with a reading of the to-scale plan and the evidence of the Company Respondents' surveyor, Mr David Wallace. More specifically, the Applicant Council asserted that Mr Wallace had agreed that there was nothing on the face of that plan to indicate that the quarry would extend into Lot 6 if battered from the outside of the top bench (T928.11-15).
The Applicant Council criticised the evidence of Mr Walker concerning the representations made in the 1990 EIS generally and specifically in relation to Plan 2. The Applicant Council alleged that Mr Walker was evasive in his evidence (citing T427-428). It was said that Mr Walker disputed the accuracy of the diagrammatic representation of the quarry on Plan 2 because this delineated area only comprised 65% of Lot 5. The Applicant Council alleged that this estimate by Mr Walker "was a significant exaggeration". It was said that the appropriate estimation of the relevant area depicted on Plan 2 was approximately 35% of Lot 5. Moreover, the Applicant Council cast doubt on Mr Walker's evidence to the extent that he was said to have distanced himself (despite being the manager of the Quarry at the time of those representations being made) from the representations contained within the 1990 EIS and in suggesting that relevant representations were mistakenly made (T433-435 and T439).
The Applicant Council argued that its interpretation of the 1990 EIS, including Plan 1 and Plan 2, is corroborated by the actions and correspondence of the SRA subsequent to the granting of the 1991 Consent. The evidentiary material highlighted by the Applicant Council in support of this argument was said to demonstrate that the relevant evidence of Mr Walker was "obviously not right".
The Applicant Council contended that Plan 2 was not amended as part of an amended DA. Similarly, the Applicant Council suggested that the following circumstances militate against any such conclusion: the SRA did not seek an amendment of its 1990 DA pursuant to cl 33 of the EPA Regulation; the Applicant Council did not consent to any such amendment; no notification of an amendment was published in a local newspaper; and the Applicant Council did not notify the SRA of a decision under s 85(1) of the EPA Act to dispense with the notice requirements set out in s 84 of the EPA Act. In any event, the Applicant Council submitted that both Plan 2 and the annotated copies of Plan 2 discussed below at [164]-[167] are consistent with its claim that the approved area for extraction was a defined maximum area within Lot 5.
In addition to the reasons set out in the previous paragraph, the Applicant Council listed (in its supplementary closing submissions at par 127) the following statements in the 1990 EIS to make this claim good: 1. The EIS states that "[t]he land has an elevation of 90 m AHD and is a uniform, rounded hill". The only location in which that elevation is depicted is on Lot 5 DP 242210. See the contour lines on Plan 1 and Plan 2. 2. Reference is made to "'[t]he high point of the land' on Lot 5 DP 242210 and in particular that '[t]he high point is within the set back from the property boundary and not subject to quarrying'". 3. Environmental impacts are assessed by reference to a (static) "centre of the proposed quarry". 4. The archaeological survey which formed appendix 7 to the 1990 EIS (at Exhibit R1 204) assessed environmental impacts on the basis of a zone of maximum impact resulting from the proposed development, identified in figure 1.2. Moreover, it was stated (at Exhibit R1 210-211) that "[t]he location of the quarry and haulage roads, as indicated by the development consultant and by the acting quarry manager in the field, are shown in figure 1.2. The developer estimates that the quarry would cover 5 hectares, with a further 5 hectares required for the haulage road. The development would effectively destroy the present land surface over this 10 hectare area". It is noted however, that the area of the quarry shown on figure 1.3 is only partly consistent with that shown in Plan 2. 5. The identification of three scarred trees (no 1-3 on figure 1.3) on Lot 5 DP 242210 are noted as being "…all outside the development area".
Finally, the Applicant Council submitted that the fact that a wider area was used for the calculation of probable reserves, as shown on Plan 1 - which, if extracted, would have required a larger quarry floor area than that shown on Plan 2 - is irrelevant. This is because, on its case, approval was sought and obtained for a defined quarry within the location of proved reserves.

[40]

The Company Respondents' rebuttal

If, contrary to the Company Respondents' case, the Court were to determine that reference may be made to extrinsic material such as the 1990 EIS to clarify uncertainty or ambiguity as to the location of approved quarrying activities (as the Court has so decided), the Company Respondents denied the Applicant Council's claim that the 1991 Consent only permitted quarrying activities on Lot 5. Instead, the Company Respondents asserted that the 1991 Consent, read with the 1990 EIS, shows that quarrying operations were approved for both Lots 5 and 6. The Company Respondents provided the following two arguments in support of this assertion.
First, the Company Respondents rejected the Applicant Council's argument that the relevant plan attached to the 1990 EIS, Plan 2, proves that the approved quarry was to only be located on Lot 5. The Company Respondents said that while Plan 2 depicts the entirety of the quarry floor as being within Lot 5, the quarry would extend over a larger area (and onto Lot 6) if benched and battered in accordance with the diagram on Plan 2. The Company Respondents submitted that nothing in Plan 2 prohibits the expansion of the quarry onto Lot 6. Moreover, the Company Respondents argued that Plan 2 should be read together with Plan 1, as providing information on the proved and probable reserves. It was suggested that Plan 2 represented the geological area used to calculate proved reserves whilst Plan 1 showed a wider area for the calculation of probable reserves. If this area of probable reserves were to have been superimposed on Plan 2, it would have been a larger area than that already shown on Plan 2. Thus, the Company Respondents said that both plans do not show the full extent of proposed extraction but, rather, the extent of proved and probable reserves.
Secondly, and alternatively, the Company Respondents asserted that Plan 2 was amended on 9 October 1990 when the SRA provided an amended Plan 2 to the Applicant Council (Exhibit R-1, p 263). The Company Respondents contended that this amended Plan 2 clarified that, in their words, "there was no limitation upon the extension of quarrying activities onto Lot 6". This was said to be because the amended Plan 2 stated that "[i]ndicated quarry pit boundaries are estimates only and will depend on actual demand for ballast, and quality of stone found".
In relation to this argument, the Company Respondents rejected the Applicant Council's counter-argument that the amended Plan 2 did not apply because there was no valid amendment to the 1990 DA due to: first, a breach of cl 33 of the EPA Regulation and, second, a failure to properly publicly notify the amendment or, alternatively, a failure of the Applicant Council to notify the SRA of its decision under s 85 of the EPA Act to dispense with the requirements of s 84 of the EPA Act (including public notification of the amendment).
The Company Respondents argued that there was no breach of cl 33 of the EPA Regulation: if the amended Plan 2 changed the development proposal, the requirement for particulars in writing was satisfied by the handwritten note on the amended Plan 2. Moreover, the Company Respondents said that the Court should infer that the Applicant Council consented to the amendment for the purposes of the EPA Regulation: citing Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49 at [21]-[24] and [57]. It was said that the Applicant Council's conduct in notifying local residents of amended Plan 2 on 11 October 1990 was sufficient evidence of this.
If a decision under s 85 of the EPA Act to dispense with the requirements of s 84 was required, the Company Respondents contended that it can be inferred that the Applicant Council made such a decision because it took no steps to re-notify the 1990 DA. It was said that the Court should assume that all relevant statutory requirements were satisfied pursuant to the principle of regularity: citing Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 and Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48. Furthermore, the Company Respondents submitted that the validity of the amendment could not be affected by a failure of the Applicant Council to notify the SRA of such a decision under s 85(2) of the EPA Act because that "was merely a mechanical provision".
In any event, the Company Respondents suggested that the issue of whether or not there was a valid amendment to the 1990 DA might be a moot point. If recourse to the 1990 EIS is permitted to determine the approved quarry area, the Company Respondents submitted that the Court must equally be able to consider the "amended" Plan 2. Not to do so would, according to the Company Respondents, create a misleading impression that the original Plan 2 fixed the full extent of the proposed quarry and would be perverse given that the amended Plan 2 was understood by all relevant parties to have supplanted the original Plan 2.

[43]

What were the implications of Lots 5 and 6 both being referred to in the 1990 DA and 1991 Consent?

The first issue to be addressed is the implication of the inclusion of the reference to both Lots 5 and 6 in the 1990 DA (Exhibit R-1, p 143) and in the 1991 Consent (Exhibit R-1, p 355), confirming that the entire 52.5 ha of the two lots were the subject of the application and consent. It has long been recognised in planning law that a primary development (land use) is normally accompanied by ancillary developments (land uses) or activities which are secondary, but nevertheless associated with the primary. In essence, primary and associated secondary uses come together as a package. Yet when it comes to defining where "what" is to occur, one must bore down to the detail of the proposal and then into the consent that follows. It would be chaos if the delineations of use and development for one area as distinct from another area, within the overall land the subject of the consent, were simply thereafter cast aside allowing a "free for all". Such are the implications of the Company Respondents' contention that they are free, in essence, to extract stone from the whole of Lots 5 and 6 (save, presumably, for the 20 m setbacks from the boundaries).
One of the seminal planning cases in the High Court dealing with extractive industry assists us in understanding this sensible approach: that within an overall land site, despite a confined use description "the purpose of extraction of rock and stone and crushing and screening" applying to all the land the subject of permission, it should nevertheless be accepted that some areas may be approved for quarrying rock whilst other areas may be concurrently approved for ancillary activity. For instance, within an overall approved site, there may be active areas, say designated for extraction of stone, and other areas that may simply be environmental buffer areas or perhaps reserved land which might at some future time be the subject of a further DA. The following passage from Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council 145 CLR 485; [1980] HCA 1 at 502 (Stephen J) is instructive, as whilst focussing upon the definition of "use" as it appeared in s 3 of the City of Brisbane Town Planning Act 1964-1976, His Honour confirmed an interpretative approach, consistent with long-standing planning law practice with respect to associated uses, which is apposite to the case before me. "I do not regard this definition as in any way requiring that an applicant for consent should include in his application a description of all incidental and associated uses involved in devoting the land to the proposed use. What it does do, however, is to make it clear that, just as permission granted for a particular use will extend to permit of all incidental and necessarily associated uses, so too land devoted only to the latter will be as much land to which the application relates or applies as will be the land which is to be devoted to the principal use. Even without the aid of this definition I should have thought that the applicant's proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products: it included the construction and use of an access road. The land the subject of the use accordingly included the route of that access road. Were there any room for doubt as to this, the extended meaning of 'use' given by the latter portion of the definition removes it. The intimate connexion between the use of land and access to it requires little elaboration."
In this respect, the Court accepts the Applicant Council's submissions summarised above at [138]-[146] with respect to the consistency of its interpretation of the reference to Lots 5 and 6 in the 1991 Consent with contemporaneous documents such as the 1990 DA and 1990 EIS. The Court further highlights the following passages found in the 1990 EIS: "The 'new' quarry will occupy about 5 ha and another 5 ha will be required for the haul roads and setbacks" (at Exhibit R-1, p 150); "The quarry will be developed on Lot 5…Plan 2 shows the location of the proposed quarry, haul road and details of the quarry faces and benches" (Exhibit R-1, p 160); "The area of development totals about 10 ha made up of about 5 ha for the quarry and another 5 ha for the haul road" (Exhibit R-1, p 200).

[44]

Plan 2

Contrary to the submissions of the Company Respondents, the Court does not accept that Plan 2 (Exhibit R-1, p 231) can be interpreted as indicating that the area of extraction would extend beyond the designated area shown for the quarry on the Plan. The Court does not accept that the words on that plan marked "QUARRY FLOOR RL 40.0" provides information beyond that the RL for the quarry floor will be at 40.0 m RL. It is not, in the Court's interpretation, an indication that the area contained within the dashed line is merely the quarry floor from which the proposed quarry is to expand outwards. The words are, rather, an indication of maximum depth.
There is a further logical interpretation of Plan 2. It was an indicative plan prepared for the purposes of the 1990 EIS to effectively give a representation of, or provide an understanding of, the intended area of disturbance. If the area of disturbance was to extend beyond the area contained within the dashed-line, why would Plan 2 not instead show that? To make sense of what would, on the Company Respondents' interpretation, be a deficiency in the information being shown, the more logical interpretation is that Plan 2 shows the outer limits of the potential disturbed area associated with the proposed quarry, provided always that it be contained within 5 ha. Plan 2 therefore confirms that the quarry area - where stone is to be extracted - was always to be contained within Lot 5. Given that the Plan is an indicative plan, providing the area of extraction was kept within 5 ha, the final shape might vary presumably guided by the quality of the andesite resource within the 5 ha.
The Court's interpretation is not weakened by the propositions put by the Company Respondents regarding the necessity to batter the quarry faces, noting that Plan 2 contains a diagrammatical representation of a typical quarry face. Essentially they argued that if the battering commenced from the dashed-line perimeter of the area shown on Lot 5 in Plan 2, it would, of necessity, extend into Lot 6. They therefore argued that Lot 6 was necessarily always envisaged to be included in the area from which rock would be extracted. The Court rejects this interpretation as a post factum construct. In short, the Court determines that the battering was intended to occur, extending inwards, within the dashed-line perimeter.
Further confirmation that the Court's interpretation of the location of the batters is correct - that is, all extraction of stone including the full batters from the pit are contained entirely within the dashed-line perimeter of the polygon as shown on Plan 2 - can be found in the 1990 EIS. That document contains consistent references to the quarry area being limited to 5 ha (for instance at Exhibit R-1, p 150) yet the documentation confirms that the total area of Lot 5 is 27.13 ha (see the title details set out at Exhibit R-1, p 176). With the 5 ha of quarrying being a small portion of 27.13 ha of the entire Lot 5, there is no evidence of a need or an intention for the active area of rock extraction together with the batter slopes extending out from the quarry pit contained within the polygon shown on Plan 2. Indeed, the dashed line of the polygon, enclosing as it does an area probably greater than 5 ha, was simply indicative of the area within which the 5 ha extraction area would eventually be located.
Much issue was made of the fact that later versions of Plan 2 (Exhibit R-1, p 263) were produced with what the Court will describe as greater "particularisation". Two iterations of a particularised version of Plan 2 were produced to the Court: one (Exhibit R-1, p 263) which was provided by the SRA to Mr B Hartcher (the Applicant Council's then town planner) on 15 October 1990; and another (Exhibit R-1, p 268) which was forwarded on 11 October 1990 to neighbours to the south - a Mrs G Thomas on Lot 4 and Mr and Mrs R R Sanders on Lot 3. The only differences are that indications of staged or staggered extraction within the quarry area were shown in the 15 October 1990 version by coloured hatching, whereas that staging on the 11 October 1990 version was unhatched and uncoloured and the locations of the Thomas and Sanders properties were marked. The Company Respondents submitted (as described above at [149]) that this particularised version of Plan 2 was an "amendment" that was accepted by the Applicant Council, thereby confirming, they argued, that the extraction of rock was to extend beyond the dashed-line area on Lot 5 into other areas, most particularly Lot 6. This argument was based upon a proposition that handwritten words appearing on the particularised Plan 2 stated as follows: "Predicted quarry pit boundaries are estimates only and will depend on actual demand for ballast, and quantity of stone found".
Again, the Court finds that the Company Respondents' interpretation was a convenient post-factum construct. The Court rejects this construct and interpretation of the revised Plan 2. There is no indication on Plan 2, whichever version one reviews, to indicate or suggest that there is any proposal to extend the extraction of rock beyond the dashed-line perimeter of the area depicted on Lot 5. The Court interprets "predicted quarry pit boundaries" in the handwritten annotation as indicating that the estimated boundaries might actually shrink. With Plan 2 being indicative, as already stated at [161] above, the actual extraction pit, being restricted to 5 ha, would be anticipated to reflect the location of the quality andesite. The boundaries are estimates, providing locational flexibility within the polygon, which could shrink if the actual demand for ballast was less or, once excavation commences in the quarry pit, the quality of stone is found to be of lesser quality. The Court rejects the suggestion that the particularised versions of Plan 2 were proposing an expansion beyond that which was applied for and which had been the subject of public notification. Put simply, Plan 2 did nothing other than delineate the maximum area within Lot 5 within which rock extraction was eventually permitted to occur, at precise locations to be determined (always limited to 5 ha). The particularised versions did not alter this, and were not in any event part of the 1991 Consent.
The Court, having interpreted the particularised Plan 2 versions as being simply the same Plan 2 as that approved by the 1991 Consent, but with helpful annotations, considers that there is no issue as to whether those versions were formal amendments requiring adherence to the proper amendment procedure or process. The Company Respondents' arguments regarding the annotated Plan 2 being an amendment and the process that was or was not required, or was waived, as described in [149]-[152] earlier in this judgment is quite frankly a distraction, diverting attention from the more plausible interpretation of the annotated Plan 2. The interpretation of the status and circumstances of the annotated Plan 2 as submitted by the Applicant Council and summarised above in [144] accords with the Court's conclusions.
Put plainly, none of the versions of Plan 2 to convey anything to suggest that the quarry area within which the extraction of rock is to occur is not delineated by the dashed line around the polygon area - that is the outer perimeter of the area within which the 5 ha extraction area would be located.
With respect to the evidence of Mr Walker, called to give evidence for the Company Respondents, the Court agrees with the analysis and description of his evidence as described and criticised by counsel for the Applicant Council as I have summarised at [142] of this judgment. The Court found Mr Walker's evidence to be vague and unhelpful. In short, on this issue, Mr Walker was not a credible witness. Alternative interpretations of Plan 2 and the 1991 Consent as proffered by Mr Walker are not accepted by the Court.

[46]

The Applicant Council's claim that the Company Respondents are carrying out an unapproved extractive industry development on Lots 5 and 6

The Applicant Council asserted that the 1991 Consent only approved a particular type of extractive industry: namely, a quarry winning material primarily for railway ballast. The Applicant Council submitted that this description of the development in the 1991 Consent, construed objectively, defines the lawful purpose for which the relevant land may be used, as distinct from any characterisation of the use of the land at a level of genus consistent with existing use principles: citing Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120; Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198; MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8; House of Peace Pty Ltd v Bankstown City Council; and Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147.
In respect of the last of these decisions, the Applicant Council said that the Court recognised at [60] that a development consent can contain limiting words which constrain the uses which are permitted. In the present circumstances, the Applicant Council claimed that the limiting words of the 1991 Consent constrained the permitted use to that of a quarry winning material primarily for railway ballast. Importantly, it was said that this description of the approved development would remain valid regardless of whether or not the 1990 DA and 1990 EIS are taken to be incorporated in the 1991 Consent.
The Applicant Council claimed that the Company Respondents are unlawfully carrying on a different, unapproved type of extractive industry: namely, a quarry winning material primarily for the manufacture of concrete, asphalt and spray seal aggregates and road and pavement construction materials. In order to make good this claim, the Applicant Council advanced two primary contentions. First, that the Company Respondents have carried out the relevant quarry development such that the substantial majority of the output of the quarry for each financial year has not been railway ballast but has instead been manufactured concrete, asphalt, and spray seal aggregates and road and pavement construction materials. Secondly, that the Company Respondents have carried out the relevant quarry development such that the substantial majority of material extracted from the quarry has been transported, in each financial year, by truck rather than by rail.
The primary evidentiary material upon which the Applicant Council relied to make good its claim was documentary evidence - such as contemporaneous quarry business records kept for the purpose of fulfilling statutory reporting obligations - detailing the proportion of total output of the Quarry comprising railway ballast and transported by rail over time. The Applicant Council also relied upon, inter alia, the evidence of Mr Frank Martin as evidence of its claim that, prior to 1998, the quarry on Lot 5 was mainly producing railway ballast. The Applicant Council also criticised the evidence of Mr Walker to the extent that it did not accord with the above evidence. Ultimately, the Applicant Council asserted that the relevant evidence "is all one way on this issue".
The Applicant Council submitted that the figures of total output of the Quarry up until 3 February 1986 (that is, prior to the grant of the 1991 Consent), demonstrate that the development was a quarry winning material primarily for railway ballast. This was said to be because "[a]ccording to the SRA output figures, for the eighteen years from 67/68 through to 85/86 the proportion of total output made up by railway ballast (track ballast) ranged between a low of 65.4% in the year 1970/71 through to a high of 85.9% in the year 1979/80" (citing Exhibit R-1, pp 585-603).
The Applicant Council said that, as at 1990, it was only possible to infer from the 1990 DA and 1990 EIS that the quarry was winning material primarily for railway ballast because that is the development for which approval was sought (citing Exhibit R-1, pp 152 and 162). The Applicant Council stated that 59.8% of the total output for the financial year ending 30 June 1990 was railway ballast (Exhibit R-1, p 591), which was said to be the lowest proportion for the financial year spanning 1967/1968 to 1992/1993. With respect to the last- mentioned financial year of 1992/1993, the Applicant Council submitted that the Quarry continued to mainly produce railway ballast (citing Mr Martin's evidence at T461.28-39) and that 69.1% of the total output constituted railway ballast. The Applicant Council said that the evidence of Mr Martin was that the Quarry was mainly producing railway ballast until the installation of the tertiary plant, which the Applicant Council alleged was in 1998 or 1999 (T461.28-39).
However, significantly, the Applicant Council claimed that the quarry on Lot 5 ceased to be "a quarry winning material primarily for railway ballast" - and, therefore, commenced being used for an unapproved purpose - after 1998. The Applicant Council suggested that this change was brought about by the construction of the tertiary plant which "was not installed for the purpose of producing railway ballast and had nothing to do with the production of railway ballast". The Applicant Council argued that this claim was reinforced by Mr Martin's evidence that the commencement of the tertiary plant precipitated an increased rate of production and a greater number of truck movements (T459-460). The Applicant Council said that in the financial year ending 30 June 1998, only 23.7% of total output was railway ballast (Exhibit R-1, p 744).
Most relevantly, the Applicant Council submitted that the evidence shows that, since the Company Respondents commenced carrying out the Quarry, less than 10% of the total output of material won from the quarry has been railway ballast and only about 2.5% of total output has been transported by rail. The Applicant Council contended that "[a]ll of the relevant figures show" that, by 2014, "the quarry had become completely converted into one which produced mostly concrete and bitumen aggregates and pavement construction materials". In fact, the Applicant Council said that the Company Respondents did not appear to dispute the proposition that railway ballast only accounts for about 10% of the total output of material won from the quarry. The Applicant Council submitted that, since 1998, most of the total output of the Quarry has constituted product used to manufacture concrete, asphalt, and spray seal aggregates and road and pavement construction materials.
Additionally, the Applicant Council submitted that it was significant that only a negligible amount of the annual total output of the Quarry has been transported by ballast train (citing Exhibit M, p 17).
Thus, the Applicant Council contends that the above evidence demonstrates that, in contrast to the development carried out on Lot 5 prior to 1998, the Company Respondents are carrying out a type of extractive industry development different to that approved by the 1991 Consent. In so doing, the Applicant Council alleges, the Company Respondents have contravened s 76A(1)(a) of the EPA Act.

[47]

The Company Respondents' rebuttal

The Company Respondents denied that the description of the quarry development on Lots 5 and 6 in the 1991 Consent as "an extractive industry being a quarry winning material primarily for railway ballast" constrains the products of the development, "as distinct from the operations themselves". The Company Respondents contended that the development was, and remains, a railway ballast quarry, if the purpose of the use of Lots 5 and 6 is properly characterised (according to the principles set out in Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 (Chamwell) and Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147). Therefore, the Company Respondents rejected that they were carrying out some other unapproved development in contravention of s 76A(1)(a) of the EPA Act. The Company Respondents articulated three primary reasons why the purpose of use of Lots 5 and 6 is that of railway ballast quarry.
First, the Company Respondents submitted that the development being carried out on Lots 5 and 6 is consistent with what a railway ballast quarry has always been understood in the industry to mean. That is to say, a quarry which produces aggregates including a size fraction that is suitable as ballast. It was said that such a quarry would also have been understood to: necessarily involve the production of other smaller and larger fractions of rock; feature railway sidings; and have equipment capable of producing larger sized aggregates. On this basis, the Company Respondents submitted that the development being carried on at Lots 5 and 6 is a railway ballast quarry. In fact, the Company Respondents asserted that the Quarry "continues to be a major supplier to the New South Wales rail network, supplying about 25% of ballast requirements for NSW". The Company Respondents relied on the evidence of Mr Walker (Affidavit dated 13 February 2017) in support of these propositions.
Secondly, the Company Respondents submitted that it was important for the Court to distinguish between the use of Lots 5 and 6 and the separate use of the Eastern Lands. The Company Respondents emphasised that the operative 1991 Consent only applies to Lots 5 and 6: citing North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 at [8] and [14]-[18]. Contrary to the use of the Eastern Lands, the Company Respondents submitted that, in essence, "the activities which take place on Lots 5 and 6 relate only to the extraction of the material, and not the processing of it". Aside from some exceptions, the Company Respondents said that the development on Lots 5 and 6 "is the drilling of holes, the placing of explosive charges and the use of hydraulic hammers mounted on excavators to break up run of mine … rock which is too large for processing" (Exhibit R-4, p 2,301 at [39]). The Company Respondents noted that some rock is processed on Lots 5 and 6 using mobile plant.
Thirdly, the Company Respondents argued that whether or not the final product of quarry operations is predominantly railway ballast "is to a large extent an irrelevance". This is because, on the Company Respondent's case, what matters for the purpose of characterisation is not the final product (as transformed on the Eastern Lands) but the processes that actually occur on Lots 5 and 6. The Company Respondents submitted that irrespective of whether the final product is railway ballast, road aggregate or any other relevant products, the development on Lots 5 and 6 would be largely carried out in the same way.
It should also be noted that the Company Respondents emphasised that the determination as to whether the development on Lots 5 and 6 is that of "an extractive industry being a quarry winning material primarily for railway ballast" is a question of law for the Court to determine.
In the alternative, the Company Respondents contended that the 1991 Consent approved use of Lots 5 and 6 for the purpose of extractive industry, or quarry, at large. The latter part of the description of the development as "being a quarry winning material primarily for railway ballast" was said to be a non-binding statement of intention or commercial purpose rather than a constraint on the lawful activities permitted to be carried out or the end products able to be produced. It was said that the words "winning material primarily for railway ballast" concern the purpose of the proponent seeking approval (originally, the SRA), rather than the purpose of the use. Therefore, the Company Respondents submitted that it would be contrary to settled principles to regulate the development by the user rather than the use.
Furthermore, the Company Respondents submitted that this position is consistent with the principle that planning law is not concerned to regulate matters of commerce (citing: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] HCA 20 at 681) or the subjective intention of the user: citing Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99. The Company Respondents also stated that the words used to describe a proposed development in a DA are not determinative of its proper characterisation: Sansom v Port Stephens Council (2006) 147 LGERA 203; [2006] NSWLEC 475.

[50]

The 1991 Consent was for a railway ballast quarry

The Court has found that the quarry on Lot 5, with its ancillary activity (haul road) allowed on Lot 6, is a railway ballast quarry, or, as so described at various points in the contemporaneous documentation, "a quarry winning material primarily for railway ballast". The 1991 Consent was not granted for "extractive industry" generally. Lest there be any ambiguity, where I simply refer to the "Quarry" in this judgment with reference to the Western Lands, I am at all times referring to that which I have found as being the case: a permitted quarry involving the extraction of rock from Lot 5 and the associated development, primarily the haul road, on Lot 6, all for the purpose of winning railway ballast.
In reaching its conclusion on this aspect of the case, the Court has carefully considered the submissions from the parties together with the evidence upon which they respectively rely. The Court finds that the arguments submitted on behalf of the Company Respondents on this aspect of the case cannot be sustained. They may submit that their use of the Western Lands constitutes a railway ballast quarry, but on the evidence, their usage does not, in the Court's view, constitute such a species of quarry.
It is perfectly acceptable for development consents to contain limiting words constraining the uses which were permitted - thereby constraining, as in this case, a genus of quarry to a species, being a railway ballast quarry. Each of the cases relied upon by the Applicant Council (at [171] above) have been reviewed by the Court and confirm the approach pressed. See in particular Jojeni Investments Pty Ltd v Mosman Municipal Council at [60] and [71], in which Botany Bay City Council v Parangool Pty Ltd and MM & SW Enterprises Pty Ltd v Strathfield Council were highlighted as instances where such a course had been identified.
To explain the Court's conclusion on this aspect of the case, I will now summarise my examination of the documentation produced in evidence which I found persuasive. The primary purpose of setting out this material is to clearly point to material which corroborates the Court's exercise, based on its own examination of the evidence and law, in characterising the purpose for which development consent was granted. On the face of the determination, dated 7 March 1991, notifying the SRA of the purported grant of the 1991 Consent for the proposed extractive industry extension from the Eastern Lands to the Western Lands, the highly relevant description of the approved development is stated as follows: "An 'Extractive Industry'" (Designated Development) being a quarry, winning material primarily for railway ballast" (Exhibit R-1, p 355). I am of the opinion that the inclusion of the adjective "an" before "extractive industry" is a touchstone of the intention to specify a particular type of extractive industry being approved, that is, a quarry involving the winning of material for railway ballast. One might also reflect on the reason for the comma between the words "quarry" and "winning", however I have concluded that it was intended to simply provide a pause in order to put emphasis on the purpose of this particular quarry - the tie to railway ballast. It was not, in my opinion, a consent for extractive industry generally, rather it was a determination issuing a confined and restricted consent for a type of extractive industry.

[51]

Distinguishing elements of a railway ballast quarry

Further, I am satisfied that the 1990 DA and the 1991 Consent that followed were not with respect to a generic extractive industry quarry, rather the proposal was for a species of quarry: a "Railway Ballast Quarry" - as the front cover page of the 1990 EIS so unambiguously stated (Exhibit R-1, p 146). I have concluded that with such a species of quarry there are certain inherent characteristics with the operation of a railway ballast quarry - essentially being the production of crushed rock of a particular range of grades for railway usage (Exhibit R-4, p 2,299 [29]-[30]) and being largely dependent upon railway rolling stock to transport the raw rock ballast thereby obviating the need for (much) road transport. The Court confirms that the normal mode of transport of crushed rock from a more generic quarry is usually by truck transport over roads, an observation gained from reading many judgments dealing with extractive industry developments over many years.
These elements, of extracting crushed rock for railway use and then the utilisation of railway rolling stock for transporting the rock, usually loaded from a railway siding purpose-built within or adjoining the ballast quarry, which had been the case on the Eastern Lands quarry since its commencement, (which the Court inspected at Martins Creek during its view), in the Court's opinion, are inextricable elements of the expansion of the quarry at Martins Creek onto Lot 5 proposed by the 1990 DA and 1990 EIS. Usually a railway freight car will carry the ballast, and travel from the quarry siding, via the railway network to the end point where the ballast is directly off-loaded onto the railway lines (as described at Exhibit R-4, p 2,300 [30]). The whole process minimises the use of road transport. This process of transportation, and thus, external impact, is a critical and integral component of characterising the Quarry as a railway ballast quarry. On the basis of the evidence relied upon by the Applicant Council, summarised earlier at [174]-[179] of this judgment, the Company Respondents' operations at Martins Creek have moved far away from that which could still be characterised as a railway ballast quarry.
The Court rejects the Company Respondents' alternative position as summarised in [186] above that the description of the development as "being a quarry winning material primarily for railway ballast" was said to be a non-binding statement of intention or commercial purpose rather than a constraint on the lawful activities permitted to be carried out or the end products able to be produced. As said earlier, it was argued that focussing on the product was contrary to settled principles to regulate the development by the user rather than the use. The Court rejects the suggestion that these principles are applicable to the circumstances before it. The connectivity between purpose, product, mode of operation and consequential external environmental impact distinguishes a railway ballast quarry from a more generic quarry.
This distinction is not just about the product, railway ballast, rather it is about the operational interface between the Quarry and the broader community. In circumstances where the 1990 EIS stressed the apportionment of product and the consequential different mode of transport and so differential externalities, the proposed quarry, as described in the 1990 DA, was in part defined by the proposition that 70% of quarry product was proposed to travel from the Quarry by rail, with the ballast to be loaded via the onsite railway siding. The 1990 EIS (at Exhibit R-1, p 150) stated: "Estimated annual production is 250,000 to 300,000 tonnes. Some 70% of the production will be removed by rail and the balance by road. About 12 truckloads, thus 24 truck movements per day are required to remove 80,000 tonnes per annum based on 50 weeks at 5.5 days per week and average loads of 23 tonnes". With the final form of condition 6 in the 1991 Consent requiring that the quarry operator "not permit the transport of greatly more than 30% of quarry products by road on an annual basis ...". The Applicant Council and the public could properly characterise the Quarry as a railway ballast quarry. They were entitled to rely on the assurances that the proposed quarry would be, and remain, such a species of quarry. Although discussed later more fully, the Court does not consider the production and transporting of a range of product mix beyond ballast, when predominantly using railway rolling stock, would alter the Court's characterisation of the Quarry as a railway ballast quarry - providing the rock material product remains an integral part of the railway ballast quarry operations. It is accepted as inevitable that, in the process of crushing rock to create ballast of the correct dimensional range, there will be by-products, such as smaller particles of rock, some of which were referred to as "scalps" in the course of the evidence.

[53]

Transformation of railway ballast quarry into general quarry

On the basis of my characterisation of the operations which had been carried out on Lot 5 (extraction) and Lot 6 (ancillary) at the Quarry since the 1991 Consent, at some point in time, most probably in 1998 or 1999 when the tertiary crushing plant was introduced to crush greater volumes of rock into a greater range of product grades, the operations so expanded and so morphed into generic quarry operations, that this change in operation brought about the species of a railway ballast quarry undergoing a transformation to become a general quarry. This transformation never had planning approval.
This finding should not be interpreted as the Court taking issue with the Company Respondents' description of "scalps" being produced as a by-product of the crushing of rock for railway ballast. At par 55 of their closing submissions, the Company Respondents said: "Railway ballast is a large coarse aggregate comprising rock which has been quarried and then crushed and screened to nominally the specification of minus 63mm plus 25mm. In the process of producing ballast and aggregate, other products are produced known as 'scalps' and 'crusher dust', which are reprocessed on site to make higher-value saleable products such as road base or concrete aggregate".
The above passage, extracted from the Company Respondents' closing submissions, was sourced from the affidavit of Paul Walker affirmed 25 February 2016 at pars 31-34. Although the Court found Mr Walker's evidence regarding the 1991 Consent and the changes in the operations at the Quarry over the years to be at times vague and unreliable, with respect to his more generic description of his industry, specifically the processes involved in producing different quarry products, the Court accepts such information should be within his knowledge and experience.
In circumstances where it was clear that the purpose of the quarry was for the "winning of material primarily for railway ballast", the fact that an ancillary production of by-products, such as scalps and "crusher dust", occurs concurrently does not mean the production of such by-products should be allowed over time to convert the railway ballast quarry to a quarry of another kind. For this to occur would be allowing the figurative tail to wag the dog. Once such a transformation has occurred, the quarry in question would be conducted for a different purpose and would be of a different character, especially when such product becomes reliant on road transport, rather than using the rail network. Perhaps Mr Walker was too revealing when he referred to the reprocessing of these by-products to make higher-value saleable products such as road base or concrete aggregate. The Court accepts the Applicant Council's summation of the evidence confirming this transformation, demonstrating that by 1998 only 23.7% of the Quarry's output was rail ballast (Exhibit R-1, p 744) and that in the period that the Company Respondents have operated the Quarry, less than 10% of total output of material won from the Quarry was for railway ballast (Applicant Council's closing submissions at par 11).
Commencing with the 1990 DA itself, wherein the words "Quarry for Railway Ballast" is entered in the pro-forma Dungog Shire Council application form in that section headed "Proposed Development" (Exhibit R-1, p 143), there is repeated confirmation in the contemporaneous documentation confirming that the proposal was always for a quarry for railway ballast. For reasons explained at [158] above, the more generic form of expression of "quarry" under the heading "Future Use of Land" (Exhibit R-1, p 145) and "Development of a Hardrock Quarry" in the subject line of the letter dated 8 August 1990 from P Handel, the Quarries Business Manager for the SRA, accompanying the 1990 DA (Exhibit R-1, p 141) does not alter the Court's view. The general description delineates the overall application to the 52.5 ha, but the actual delineation becomes apparent from the detail that follows, which states that the proposal is a "quarry for railway ballast" and then identifying where the respective components are to occur.

[54]

Primary mode of transportation

The inextricable linkage of the railway ballast quarry (as proposed) to the primary mode of transport of extracted raw material by rail is one of the most critical factors, in the Court's opinion, in determining the actual characterisation of the Quarry, The applicant for the development consent represented that the offsite impacts of the generation of truck traffic will be contained. In the February Minutes, at which the 1990 DA was considered and approved the Town Planner's Additional Report on the proposal makes the following comment with respect to the SRA's Mr Handel: "He also claims that there will be no increase in traffic as a consequence of the relocation of quarrying operations and consequently he feels that the SRA should not be required to meet the full cost of road construction" (Exhibit R-1, p 329). These same minutes contain (at Exhibit R-1, p 330) a description of the proposal as "The development application for the extractive industry being a quarry winning material primarily for railway ballast" (emphasis added). These minutes further stated, in the town planner's report of the responses of referral authorities, that "[t]he [Roads and Traffic Authority] is generally not in favour of the transport of quarry products on the public road system, it however does recognise that there will be cases where proposals for public road transport are required" (Exhibit R-1, p 333). In this instance, the Court infers, the Roads and Traffic Authority (RTA) anticipated that another mode of transport, namely rail, would be the primary mode of transportation, with public road transport as a secondary and minor component.
This town planner's report on the 1990 DA, as contained in the February Minutes, then progressed to its recommendation: "that Development Consent be granted for an extractive industry being a quarry winning material primarily for railway ballast" (emphasis added) (Exhibit R-1, p 335). A material component of the characterisation of the project, the manner in which the product will be transported from the Quarry, is dealt with in proposed condition 6: "The applicant shall not permit the transport of more than 30% of the quarry products by road without the further specific approval of the Council" (Exhibit R-1, p 336). It follows that, in the particular circumstances of the site (being the rail siding, the lack of proximity to a water body for shipping, and the lack of feasibility of other transport alternatives such as air freight), the 70% balance would be transported by rail. The retention of the proposed condition 6 in the 1991 Consent confirmed this intention.
Beyond the extracts in the relevant contemporaneous documentation to which the Court has referred to above at [190]-[205], there are a number of similar references of relevance all of which confirm the purpose of the Quarry was to be for the winning of material primarily for railway ballast. A good example is found in the 1990 EIS (at Exhibit R-1, p 152) under the heading "Development Objectives" whereat it is stated: "The objectives of the development are: 1] to establish a rail ballast quarry adjacent to the existing Martins Creek quarry...". Another passage from the 1990 EIS (at Exhibit R-1, p 160) states in its "Introduction" that: "The development is to establish a replacement supply of quality rail ballast material as close as possible to the existing infrastructure at Martins Creek". The achievement of this objective was apparent to the Court during its inspection of the Quarry. The Court observed elements of the existing infrastructure such as the extant railway siding and the adjoining loading equipment.
In May 1991, the proposed development consent returned to the Applicant Council for further consideration of the consent conditions following negotiations with the SRA, which was the subject of correspondence between February 1991 and May 1991 inclusive. Again the Applicant Council's town planner's report, recommendations to the Applicant Council and the May Resolution have left the Court with no doubt that at all material times "a quarry winning material for railway ballast" remained the proposal (see, for example, Exhibit R-1 at pp 384 and 386).
On the basis of the foregoing analysis of the evidence and the Court's explanation of its reasoning, it follows that, with reference to the Applicant Council's Amended Summons, the Court should make the two declarations sought in the first and second prayers for relief. Further, the Court should make the order sought in the third prayer for relief.

[55]

The Company Respondents' claim that no conditions of consent were validly imposed

The Company Respondents usefully summarised their claim that no conditions of consent were validly imposed as comprising, in their own words, the following four propositions: "(a) the failure of [the Applicant Council] to obtain the [SRA's] (or the Minister's) written approval to the imposition of conditions prior to the February 1991 resolution has the necessary legal consequence that the conditions were invalidly imposed but the consent itself nonetheless remained valid, albeit without conditions; (b) in the absence of an application to modify the consent, [the Applicant Council] had no power to impose or amend conditions as it purported to do in May 1991; (c) as a result, the consent remained a valid consent without conditions; and (d) alternatively to (a) to (c) above, neither the Minister's nor the [SRA's] written approval was obtained to the imposition of numerous conditions, with the consequence that it is only those conditions which did receive written approval that are valid and enforceable."
The Company Respondents predicated their claim on the proposition that, by dint of s 91A of the EPA Act (as it was at the material time), the Applicant Council was prohibited from imposing conditions on the 1991 Consent except with the written approval of the SRA. This was said to be because, for the purposes of the EPA Act, the SRA - which was a public authority constituted under the Transport Administration Act 1988 - was a prescribed person: cl 41B of the EPA Regulation.
It is also important to note that the Company Respondents asserted that - after setting out a detailed chronology of relevant events - the relevant development consent is that which was granted by the Applicant Council by its February Resolution. The Company Respondents submitted that the proper interpretation of the former ss 91-93 of the EPA Act is that "[t]he resolution and not the notice of determination is the grant of consent": Pselletes v Randwick City Council at [44] and [50]. The Company Respondents submitted that once this development consent was communicated by the Notice dated 7 March 1991, it could not be recalled (citing Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 at 744-745) or varied unilaterally. Rather, a written application under s 102 of the EPA Act was required to modify the consent, which the Company Respondents said was never made.
From this foundation, the Company Respondents argued that the failure (on its case) of the Applicant Council to obtain any approval from the SRA prior to granting development consent on 12 February 1991 means that the Applicant Council failed to comply with s 91A of the EPA Act. The consequence of this, so the Company Respondents claimed, is that the Applicant Council granted the 1991 Consent without any conditions of consent (despite purporting so to do). In support of this position, the Company Respondents gave the following reasons as to why the alleged contravention of s 91A by the Applicant Council would not invalidate the 1991 Consent. As a threshold issue, the Company Respondents claimed that the Court need not entertain any argument that the 1991 Consent is invalid because no declaration of invalidity has been sought by the Applicant Council or, in any event, could be sought (if the 1991 Consent was notified by the Applicant Council, which is unclear) due to (the former) s 104A or s 101 of the EPA Act: citing Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [46]-[50] (although noting, cf, Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 at [37]-[39] and Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 at [62]-[71]).
First, the Company Respondents noted that the Applicant Council, pursuant to (the former) s 91, had the power to grant a development consent "either unconditionally or subject to conditions". The Company Respondents submitted that it does not follow from the invalid imposition of the purported conditions of consent that the 1991 Consent was invalid in toto. In fact, it was said that (the former) s 91A(2) "expressly contemplated that the consequence of the consent authority not determining a development application in accordance with the Minister's decision not to approve the imposition of conditions would be the granting of "unconditional consent". The Company Respondents submitted that this reflected the statutory intention of the provision and that there was no reason why there should be any other result.
Secondly, the Company Respondents claimed that the issue of whether the conditions of consent can be severed from the 1991 Consent is a red herring. The Company Respondents contended that because there was an absence of power to impose conditions without written approval no question of severance arises in these proceedings. That is to say, there are no conditions to be severed.
Thirdly, the Company Respondents argued that, although severance is "a non-issue", the position that the result of the contravention of s 91A would result in an "unconditional consent" is supported by the ut res magis valeat quam pereat rule of statutory interpretation: "which would involve a preference for a construction which preserves the validity of an instrument over one that would render it invalid": citing Widgee Shire Council v Bonney (1907) 4 CLR 977; [1907] HCA 11 at 983 and the cases referred to in Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 at [46]. To the same end, the Company Respondents cited s 32(2) of the Interpretation Act 1987: citing Williams v NSW Minister for Planning (No 4) [2010] NSWLEC 222 at [12], as to the application of s 32(2) to development consents.
Fourthly, the Company Respondents challenged the reliance of the Applicant Council on Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 1 NSWLR 479 in support of the proposition that the 1991 Consent would be invalid in toto if there was an "unconditional consent". The Company Respondents submitted that this reliance was misplaced because the decision was based on the former s 91(5) of the EPA Act, which provided that a development consent granted by a consent authority otherwise than in accordance with the EPA Act (or any relevant environmental planning instrument) was void. Following the repeal of that provision, an unlawful condition of consent could be severed without necessarily making the 1991 Consent invalid. In fact, the Company Respondents submitted that, Baulkham Hills Shire Council v Land Commission of New South Wales actually stands "for the proposition that the duty of council in the absence of concurrence was to issue an unconditional approval" because Hope JA observed at 489B that, in the Company Respondents' words, "in circumstances where the Minister had not granted concurrence either to the refusal of consent, or the granting of conditional consent, the Council had a duty to grant unconditional consent to the application".
Fifthly, the Company Respondents rejected that the granting of an unconditional consent would be inconsistent with the principle in Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (Mison) because such a development consent would be significantly different from that which was applied for: citing Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 (Kindimindi Investments (2006)) at [24]-[29] and Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175; [2000] NSWLEC 89 at [49].
The Company Respondents argued that the Applicant Council did grant consent to the 1990 DA but did so in circumstances where, by dint of s 91A, it did not have power to impose conditions of consent. That outcome, according to the Company Respondents, did not infringe the principle in Mison but was, rather, a direct consequence of the statute and "is mandated by a [Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky)] analysis". Furthermore, the Company Respondents submitted that, in any event, the Applicant Council's position was predicated on the erroneous basis that the unconditional consent was significantly different to that which was applied for in the 1990 DA (and not the 1990 EIS: citing s 91(1) and the distinction between a DA and EIS made in s 77(3)(d)).
Turning to the second of the Company Respondents' four primary propositions, the Company Respondents contended that the Applicant Council could not amend the 1991 Consent by imposing conditions of development consent (even with the written approval of the SRA), once it had granted the unconditional consent, in the absence of an application to modify the 1991 Consent. The Company Respondents asserted that there is no evidence before the Court that any such modification application was made or that the statutory procedure under the EPA Act for modifying a development consent was complied with. Thus, the Company Respondents reasoned that the Applicant Council had no power to impose conditions of development consent following the grant of the unconditional consent.
In the event that the Court were to reject the above submissions, the Company Respondents argued that numerous conditions of consent are nonetheless invalid because of the failure to obtain written approval for those conditions as required by s 91A of the EPA Act. The Company Respondents advanced the following arguments in support of this alternative claim.
First, the Company Respondents argued that the unambiguous language of s 91A(1)(b) shows that written approval was a jurisdictional pre-requisite to the power of the Applicant Council to impose conditions: citing, by analogy, Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 at [41]. As such, the Company Respondents submitted that it is irrelevant that they, and not the SRA, have raised the issue of the validity of numerous conditions. The Company Respondents said that there is no issue of their entitlement to raise the issue as a defence to the enforcement claims brought by the Applicant Council: noting that s 123 of the EPA Act would empower any third party to bring proceedings challenging the validity of certain conditions on the basis of a breach of s 91A.
Secondly, the Company Respondents rejected any argument that the requirement for written approval was "a requirement as to form only, not substance". Rather, the Company Respondents claimed that "[t]he requirement of writing is a critical safeguard designed to ensure that consent authorities such as [the Applicant Council] only act on the basis of documentary proof that written approval has been obtained…". The requirement was said by the Company Respondents to reflect the legislature's intention to ensure that the Crown is only bound by formally approved conditions. Thus, the Company Respondents contended that the requirement to obtain written approval was mandatory: citing, by analogy, IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304 at [4]-[5] and Formosa v Secretary of the Department of Social Security (1988) 46 FCR 117; [1988] FCA 291.
Contrary to Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 (at 690), the Company Respondents denied that the requirement for written approval was a "mere matter of machinery for carrying out the undoubted purpose of the Act". The Company Respondents submitted that on any analysis consistent with the principles in Project Blue Sky, "it must be the case that breach of the requirement under s 91A that the approval of the Minister or the Applicant be in writing would lead to invalidity".
Thirdly, the Company Respondents asserted that there is no evidence which establishes that the SRA gave written approval to numerous conditions of consent purported to be imposed by the Applicant Council, including conditions 6 and 7(b). In particular, the Company Respondents denied that the SRA's letter of 18 April 1991 amounted to a written approval of conditions: the reference to conditions verbally agreed in a previous meeting does not amount to a "written approval" within the meaning of s 91A.
Fourthly, the Company Respondents denied that the legislative requirement for written approval in a public law context could legitimately be waived, especially with respect to a jurisdictional legislative requirement: citing, inter alia, Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 and Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193. If waiver was to be used in such a way, the Company Respondents said that it would "eviscerate the ultra vires rule". The Company Respondents submitted that the only case to embrace waiver in such a context, Wells v Minister of Housing and Local Government [1967] 1 WLR 1000, has been rejected: citing, inter alia, R v East Sussex County Council [2003] 1 WLR 348 at 356-357; Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27 at [47]-[48]; Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [69]-[71].
Finally, the Company Respondents claimed that, in any event, no verbal consent was given by the SRA to any condition to the effect of purported condition 6. In support of this claim, the Company Respondents referred to the following evidence: Mr Walker's oral evidence that the SRA would never have agreed to condition 6 (Exhibit R-4, pp 2,318-2,320); the letter of 15 April 1991 written by Mr Handel stating that the SRA would not contribute to road maintenance and allow the Applicant Council to control whom the SRA could sell its product to (Exhibit R-1, pp 366-369); and "the clear evidence - both before the grant of the consent and after it - that the [SRA] would not accept a condition constraining the mode of transport from the Quarry".

[58]

Alternatively, approval was given but not in writing

Alternatively, if the Court were to determine that no written approval was given, the Applicant Council argued that the only reasonable inference on the evidence is that the SRA approved conditions of consent but did not do so in writing. The Applicant Council recited the following evidence concerning the events subsequent to the Applicant Council's resolution of 14 May 1991 as supporting this inference: 1. The SRA wrote to the SPCC referring to "'State Rail's DA'" which Council are now prepared to approve" (Exhibit R-1, p 380). 2. After 14 May 1991, the SRA conspicuously did not seek to agitate the subject of the conditions with the Applicant Council, having been assiduous to stand upon its rights up until that point in time. 3. The SRA did not complain to the Minister. 4. The SRA did not institute a merit appeal or seek judicial review. 5. On 17 July 1995 the SRA lodged a Stormwater Management Plan with the Applicant Council dealing with erosion and sediment control measures of dams for soil and water conservation as required under condition 2(a) of the 1991 Consent (Exhibit R-1, pp 486-528). 6. The SRA sent the EPA a copy of conditional development consent when seeking to vary its EPL (albeit it was a copy of the Notice issued on 7 March 1991 conditions of consent) (Exhibit R-1, pp 811-821). 7. On or about 13 March 1995 the Applicant Council wrote to Mr Handel complaining that there had been a breach of condition 6 of the development consent in the following terms "the applicant shall not permit the transport of greatly more than 30% of the quarry products, by road on an annual basis without the further specific approval of Council" (Exhibit F). In response to that letter Mr Handel on 18 April 1995 replied to the Applicant Council, stating, among other things (Exhibit F): "The Authority wishes to make it very clear that it has no intent to breach the understanding of the development consent given by council… … The Authority operates within the conditions of the development consent..."
In relation to this letter of 18 April 1995, the Applicant Council stated that Mr Walker had agreed that the letter suggested that condition 6 was a condition which had been agreed to and was in force.
The Applicant Council conceded that Mr Walker's evidence did not support the inference which it argued that the Court should draw. However, it submitted that "[t]he evidence given by Mr Walker 26 years later does not have sufficient probative value to tip the scales against the weight of the objective contemporaneous evidence". The Applicant Council also argued that the evidence demonstrated that Mr Walker "was not fully in the loop" with respect to the alleged approval of the conditions of consent because he was not sure what position Mr Handel had adopted in this respect. This was despite the fact that "Mr Handel certainly was privy to the fact that [there had] been an agreement reached".
In the event that the Court were to accept that the SRA did approve the conditions of consent, but did not provide written approval, the Applicant Council argued that the contravention of s 91A was not of a character that would result in invalidity: citing Project Blue Sky. The Applicant Council submitted that policy consideration supports the view that where a Crown agency has approved conditions of consent, the decision to do so without obtaining written approval would not result in that decision being invalid. Moreover, the Applicant Council challenged the relevant contentions of the Company Respondents.
First, the Applicant Council denied that the statutory requirement of writing is "a critical safeguard". It asserted that this requirement does not protect against, for example, any inequality in bargaining power or any evidentiary difficulty.
Secondly, the Applicant Council argued that the Company Respondents' attempt to draw an analogy between this statutory requirement and that in Formosa v Secretary of the Department of Social Security was inapposite. This is because "[t]he risk that the scheme under the social security legislation might be undermined if a person seeking to obtain social security benefits can rely on a claim made orally cannot seriously equate with a risk that the scheme under the EPA Act might be undermined if a conditional development consent the subject of a formal notice of determination is issued by a local government authority where the conditions have been agreed, but not in writing".

[63]

The claim relating to severance

The Applicant Council contended that an application of the relevant common law principles of severance and relevant statutory provisions to the present circumstances means that if the conditions of consent are invalid, the 1991 Consent itself must be invalid. In this respect, the Applicant Council said that regard must be had to s 32 of the Interpretation Act 1987. In so doing, the Applicant Council quoted the observation of Cole J that "[t]he court is required to have regard to the intention of the legislature, but if it appears that severance of any ultra vires portion of a regulation … results in the residue operating differently to the manner in which the whole would have operated, then, notwithstanding provisions such as s 32, severance cannot be effected. This is because the residue would operate differently to the apparent intention of the legislature": Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 at 101 (cited with approval in Maitland City Council v Anambah Homes Pty Ltd (at [166]).
Additionally, the Applicant Council submitted that the reasoning in Maitland City Council v Anambah Homes Pty Ltd is instructive for the present proceedings. In that decision, the council said that an invalid condition could be severed because it "…would not result in the balance of the consent operating in a manner different to that in which the whole would have operated or that condition 36 was fundamental to the development the subject of the consent or went to the root of the consent itself": quoting at [166]. In the present circumstances, the Applicant Council submitted that severance of all of the conditions would undoubtedly significantly change the operation of the balance of the 1991 Consent. Moreover, it was emphasised that, as designated development (and, therefore, with potentially significant environmental impacts), this was particularly true.
The Applicant Council also argued that the Court should not find that there is an unconditional consent because such a consent would result in an approved development significantly different from what was sought in the 1990 DA: citing eg Kindimindi Investments (2006) at [100]-[101] and [104]; Mison ; and Carr v Minister for Land and Water Conservation at [49]. Similarly, it was claimed that the Court should not find that there is an unconditional consent because this would adopt an interpretation of the 1991 Consent that results in invalidity of the 1991 Consent: citing Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115; [2003] NSWCA 270 at [19] and Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [40].
In response to the Company Respondents' submissions concerning the repeal of s 91(5) of the EPA Act in 1985, the Applicant Council submitted that this repeal is not in any way decisive of the result that, in the absence of an equivalent provision, invalid conditions "may be merrily severed". Rather, according to the Applicant Council, the repeal of that provision only means that the relevant common law and statutory provisions on the issue of severance must be applied.

[65]

The Company Respondents' reply to particular contentions

The Company Respondents challenged four particular contentions of the Applicant Council relating to the s 91A issue.
First, the Company Respondents rejected any suggestion that a finding that there is a development consent without conditions would bolster the case for having recourse to the 1990 EIS. The absence of conditions would not make the 1991 Consent sufficiently ambiguous or uncertain to justify this.
Secondly, the Company Respondents challenged any suggestion that the SRA was precluded from denying that it approved conditions of consent because these conditions (such as condition 6) reflected what had been proposed in the EIS. The Company Respondents submitted that this could not alter that the requirement for written approval was a jurisdictional pre-requisite. Moreover, it was said that any argument relating to the doctrine of estoppel is inapplicable: citing Minister for Immigration and Ethnic Affairs v Kurtovic.
Thirdly, the Company Respondents argued that the Applicant Council's reliance on the conduct of the SRA subsequent to the grant of the 1991 Consent to bolster its s 91A claim was misplaced. The Company Respondents submitted that if written approval was not obtained prior to the imposition of the relevant conditions of consent, then these conditions are legally ineffective regardless of what happened subsequently. Similarly, the Company Respondents contended that this post-consent conduct cannot "cast any light on the issue of whether the [SRA] approved the imposition of the relevant conditions prior to the May 1991 resolution". Any post-consent conduct indicating that the SRA was attempting to comply with (purported) conditions of consent does not assist in determining whether these conditions were agreed prior to their (purported) imposition.
Fourthly, the Company Respondents accepted that they had not sought any declaration of invalidity. However, the Company Respondents denied that it follows that the Court "may not address the s 91A issue as part of its determination of [the Applicant Council's] claim for breach of the consent". The Company Respondents submitted that because the 1991 Consent took effect without conditions, there is nothing to invalidate and no need for any declaration of invalidity. In any event, the Company Respondents argued that it is open to the Court to conclude, as a conclusion of law, that the 1991 Consent took effect without conditions, without granting any positive relief. In exercising its jurisdiction under s 124 of the EPA Act, the Company Respondents said that the Court "may conclude that no breach of the EPA Act has been committed in circumstances where the relevant conditions said to have been breached were not effective because of an absence of power to impose them in light of s 91A". Alternatively, if a declaration were to be necessary, the Company Respondents said that it would be open to the Court to do so.

[66]

The outcome

I have decided that the Company Respondents' submissions regarding the issue as to whether or not conditions were validly imposed on the 1991 Consent largely fail. I have decided that a condition-less consent was not issued by the Applicant Council, rather, by the May Resolution, the 1991 Consent was issued imposing conditions which had received the requisite approval from the SRA.
As the 1991 Consent was issued with approved conditions, consideration of the effect of the "default" provision in s 91A(2), whereby a condition-less consent can issue, is not strictly necessary. However, given the extensive argument from both parties on whether a condition-less consent could or did issue, and that both parties presented alternative cases on most sub-issues, some examination of the interaction between ss 91 and 91A of the EPA Act (as they then were) is warranted.
The Court accepts the submissions of the Applicant Council set out in [248] above regarding circumstances in which an unconditional consent might issue pursuant to the default operation of s 91A(2). In this case, those circumstances did not arise. However, there are two further observations to be made.
First, s 91(1)(a) did provide another power by which a consent authority might grant an unconditional consent. Section 91(1) provided that "a development application shall be determined by - (a) the granting of consent to that application, either unconditionally or subject to conditions; or (b) the refusing of consent to that application". Secondly, s 91A(2) was only triggered where it was the Minister who declined to approve proposed conditions and gave notification of that decision. Nowhere in the language of s 91A(2) was there any indication that the default provision applied in circumstances where it is a "prescribed person" applicant, such as the SRA, who declined to approve proposed conditions.
The operation of s 91(1)(a) had no application in this case as the Court finds no indication in any of the evidence before the Court that at any stage there was contemplation of the grant of an unconditional consent by the Applicant Council.
Likewise, s 91A(2) had limited relevance in this case as the Court can find no evidence in the material before it that the Minister was involved at any stage in the consideration of the 1990 DA leading to the 1991 Consent. The entire exercise under examination was simply an exercise involving a "prescribed person" - the SRA - as the consent applicant.

[67]

The SRA did consent to conditions of consent

Section 91A did require the Applicant Council to obtain the approval of the SRA for the imposition of proposed conditions prior to the resolution to grant the 1991 Consent. The 1991 Consent was that granted pursuant to the May Resolution, rather than the February Resolution. I have reached this conclusion for the following reasons: 1. The 1990 DA was made by a "prescribed person" - the SRA - as so defined by virtue of cl 41B of the former EPA Regulation wherein a public authority is included in the definition of "prescribed person". So where, in s 91A, there was a reference to a DA made by a prescribed person and thereafter there is a reference to the "applicant", that reference to applicant necessarily referred to a prescribed person. 2. Where a DA was lodged by a prescribed person, as in this case, there was no power for the Applicant Council, as the consent authority, to impose conditions on the consent without first obtaining the written approval of the Minister or the applicant - in this case, the SRA. Although the applicant here was the SRA, it nevertheless remained an option for the Minister to be involved. As indicated earlier, there was no such involvement. 3. I stress the words "without first obtaining". As there was no power for the Applicant Council to impose a condition except with the approval of the applicant SRA (or the Minister), it necessarily follows that the approval of proposed conditions had to come first in time before the consent authority could exercise its power to impose a condition. The power to impose a condition was predicated upon obtaining the requisite approval. The very expression of the words: "'shall not impose …" reinforces the prospective nature of the conduct being approved. 4. In the circumstances of this case where the Applicant Council purported to pass the February Resolution and then entered into negotiations with the SRA regarding the proposed conditions, specifically at the 17 April 1991 meeting, the Court has considered whether an alternative sequence of steps to that described in (c) above, was available, in order to determine whether there might have been an alternative pathway to gaining approval of proposed conditions. The Court considered whether an alternative pathway might have involved a state of limbo whereby the consent authority purported to exercise a power to impose conditions, with that power being held in limbo until approval is subsequently obtained, which would be crystalized in an actual consent when the required approval was later forthcoming. In this context the Court considered whether the February Resolution purported to give approval could have been considered provisional, crystallising on the date of the SRA subsequently giving approval to conditions. The Court, having regard to the wording of the provision, is of the view that such an interpretation is not open to it. In short, an alternative pathway is not supported by the preferred interpretation of the provision. 5. The contemporaneous documentation, which was placed in evidence before the Court, such as correspondence from the SRA to the Applicant Council does not, in my opinion, convey approval of foreshadowed conditions by the SRA, let alone the requisite written approval, prior to the 12 February 1991 meeting of the Applicant Council. 6. Where there is reference in documentation to meetings at which conditions were discussed and, supposedly, a compromise agreement was reached with respect to proposed conditions in contention, the mere reference in the February Minutes to potential or actual oral agreement to varied conditions, would not, in my view, constitute documentation akin to "written approval of … the applicant [SRA]". 7. I consider that the words "written approval" in s 91A(1)(b) require a degree of finality and, at the very least, avoidance of ambiguity. As the receipt of such written approval effectively empowers the consent authority to proceed to issue a consent with conditions, without written approval, the consent authority lacks the power to impose conditions of a consent. To do otherwise would be ultra vires. Accordingly, the Court does not consider the February Resolution to constitute a validly issued consent, if it was purported to be a final resolution on the matter. Accordingly, the Court does not accept the Applicant Council's alternative argument that "oral" approval of proposed conditions would have satisfied the legislative requirement. However, the Court does accept that the list of matters referred to in [232] above reinforces that approval had been given, but that it had been in writing. 8. The Court accepts that on the authority of Pselletes v Randwick City Council at [44]-[50], it is the consent authority's resolution that constitutes the determination of a DA as distinct from the actual Notice that is subsequently issued. In this case the February Resolution (Exhibit R-1, pp 345-349), made on 12 February 1991, was on its face, expressed in terms expressing finality: "Resolved on the motion of …. that Development Consent be granted for an extractive industry being a quarry winning material primarily for railway ballast on lots 5 and 6 …. subject to the following conditions [emphasis added]:". 9. However, a careful analysis of the resolution and the immediately preceding recommendation in the February Minutes containing the Applicant Council's town planner's report, reveals inconsistencies with the interpretation of the February Resolution being a final resolution with respect to the granting consent to the 1990 DA. There is a clear intention, embodied in the February Resolution itself, to embark upon negotiations with the SRA to seek its approval of conditions. 10. Nowhere at that stage in the timeline do the February Minutes or contemporaneous correspondence contain any reference to approval of the imposition of conditions having been obtained from the applicant SRA prior to the Applicant Council's 12 February 1991 meeting. The incorporation of a blank schedule 7 (Exhibit R-1, p 358) in the Notice following the February Resolution is indicative of a process in transition. As already said, although the February Resolution has the initial appearance of a final resolution to issue a consent subject to conditions, the fact that the Applicant Council was aware of a need to enter negotiations suggests an alternative interpretation. 11. As the record of what transpired after the meeting of the Applicant Council of 12 February 1991 shows, the SRA shortly thereafter conveyed, via correspondence (the letter of 15 April 1991) its disquiet with respect to specified conditions, specifically the transport condition 6, but additionally others, being 2, 7, 8, 9, 10, 13, 14, 15 and 16, with the bulk not acceptable on the basis of an overlapping of the controls with other authorities, such as the SPCC. Notably, however, was an acceptance that negotiations were to take place - which took place on 17 April 1991. Concluding its letter of "disquiet" of 15 April 1991 (Exhibit R-1, p 369) with the words "For your consideration and further discussion at out meeting of 17th April, 1991", the SRA was clearly confirming that there was a process underway, involving negotiations, which was intended to arrive at a conclusion regarding consent conditions. 12. The Court has interpreted the sequence of events and communications between February 1991 and May 1991 as indicative of negotiations between the SRA and the Applicant Council regarding prospective conditions which eventually matured into approval being given by the SRA for the imposition of agreed conditions. The Court has determined that this process led to the issue of a valid consent, via the May Resolution on 14 May 1991 (Exhibit R-1, pp 392-396). 13. It was by letter dated 18 April 1991 that the SRA conveyed its written approval of the proposed conditions of consent (Exhibit R-1, p 376). Signifying its agreement to contribute $30,000 for "the construction of roads leading into the Martins Creek Quarry" in addition to the supply of road material, both being actions in compliance with what would be condition 8(a) of the 1991 Consent (previously condition 11(a) in the draft conditions), the SRA then explicitly confirmed its overall position with respect to the then post-negotiation proposed conditions. The SRA requested: "Council promptly approve State Rail's D.A. 171/90/79 with conditions as agreed to in the joint Council-State Rail meeting of 17/4/1991". 14. The Court has concluded that a valid course was followed and that the imposition of agreed conditions by the resolution (May Resolution) made at the ordinary meeting of the Applicant Council on 14 May 1991, despite the apparent representation in the minutes of that meeting (May Minutes) of the conditions being amendments to the conditions set out in the February Resolution. The material words of the May Resolution were unambiguous in their expression: "Resolved on the motion of …. that:- 1) … 2) The conditions of development consent be amended to read-[emphasis added]" (Exhibit R-1, p 392). 15. As the May Resolution was clearly made with reference to the 1990 DA in the heading to the recording of that resolution in the May Minutes (Exhibit R-1, p 392), in the context of the Applicant Council town planner's report being received and noted (as the May Minutes record), there was no "internal" ambiguity or uncertainty as to what was being resolved. However, from an "external" perspective the absence of a more expansive description of the details of the 1990 DA in the May Resolution, the necessity to incorporate by implication, if not also expressly, the 1990 DA and the 1990 EIS arises. The examination of incorporation issue has already been set out at [108]-[137] earlier in the judgment. 16. Clearly, it would have been preferable for the May Resolution to have at least set out in a chapeau to the resolution a preliminary paragraph such as preceded the February Resolution (Exhibit R-1, p 345) which stated: "[b]e granted for an extractive industry being a quarry winning material primarily for railway ballast on lots 5 and 6 …etc". 17. Further, it would have also been preferable for the Applicant Council's letter of 21 June 1991, forwarding the outcome of the May Resolution in the form of the approved conditions, to have contained the two pages in the form of a "Notice to the Applicant of Determination of a Development Application", such as was sent to the SRA after the 12 February 1991 meeting of the Applicant Council by letter dated 7 March 1991 (Exhibit R-1, pp 355-356). However, the Court has concluded that the failure to adopt that form or approach was not fatal to the veracity of the May Resolution. As observed in (h) above, it is the Applicant Council's resolution that constitutes the grant of consent. With that Notice having been sent and forming the basis of the negotiations to follow, there was no uncertainty between the parties as to the process that was underway nor of the details of the subject matter of those negotiations. 18. Submitting that the February Resolution constituted a validly issued consent (but without conditions), the Company Respondents argued (as the Court has summarised earlier at [219]) there was no evidence that a formal application for amendment of the 1991 Consent had ever been made by the SRA. In such circumstances, it was argued that as there was no valid amendment application before the Applicant Council there was no legal power by which the Applicant Council could resolve to amend as it purported to do so on 14 May 1991. 19. If in fact the February Resolution had resulted in the valid issue of a consent, then the Court would have agreed with the Company Respondents' synopsis on this point. In short, if the February Resolution was valid, then there is no evidence of a proper amendment application leading to the May Resolution. However the flaw in this argument is that, absent SRA approval of the proposed conditions, the purported consent granted by the February Resolution was invalid. If the consent purported to have been granted by the February Resolution was invalid, then the May Resolution could not be characterised as the consideration of an application to amend a February consent. 20. As foreshadowed and set out in the February Minutes, the documentary evidence indicates that negotiations were entered into at a meeting on 17 April 1991, for the purpose of reviewing and revising the consent conditions set out in the February Resolution. To make sense of these circumstances, the February Resolution must be interpreted as endorsing proposed conditions in relation to which negotiations were accepted as being required in order to secure the SRA's approval. The language of the poorly drafted February Minutes is a distraction, tending to obscure what was actually happening. Similarly, the Applicant Council letter of 7 March 1991, poorly expressed by conveying the impression of finality, was inconsistent with the proposed course of negotiation set out in the very same document (see for instance condition 11(b) and (c)). The incorporation of a blank schedule 7 headed "Acceptance of Conditions" (Exhibit R-1, p 358) is a further indication that the "draft" conditions were being sent out to the SRA for consideration, acknowledged negotiation to come, and eventual requisite approval. 21. The Applicant Council's Town Planner's report of 14 May 1991 recorded that "A consensus/agreement was reached (at the negotiation meeting) on the general conditions of consent". (Exhibit R-1, p 384) resulting in a recommendation from the planner "that the conditions of development consent be amended to read …" (Exhibit R-1, p 385). There followed after the May Resolution correspondence from the Applicant Council to the SRA, including a letter dated 21 June 1991 (Exhibit R-1, p 391), which forwarded the "final" conditions of consent with the words: "Enclosed herewith is a copy of the revised conditions for the subject development". It would seem that thereafter the SRA and the Applicant Council proceeded on the basis that there was a consent in place in which "agreed" conditions had been imposed - as set out in the May Resolution and provided to the SRA on 21 June 1991. 22. It is instructive to note from a comparison between the proposed "draft" conditions endorsed by the Applicant Council at its 12 February 1991 meeting and distributed thereafter for consideration and negotiation, and the SRA approved conditions approved by the May Resolution, that, by reference to the original numbering in the draft conditions set out in the February Resolution, conditions 8, 9 and 10 were deleted, conditions 2, 6, 7, 12, 14, 15(b), 16 and 17 were modified, whilst condition 7 was replaced. All the other conditions were approved with no variation from their draft February form. Such numerous alterations to the original proposed conditions is indicative of a proper process of negotiation, leading to an agreement, thereby laying the requisite foundation for the Applicant Council's May Resolution. 23. Given the above circumstances, the Court has had to determine whether there was a rational explanation for the course of action that was followed. The "failure" of the Applicant Council was, in the Court's view, simply a failure to maintain or make a proper record of what was going on. Actions taken by the Applicant Council and the SRA are indicative of one course being followed - the correct one - yet the February and May Minutes indicate an oddly inconsistent course. If the Applicant Council's town planner had simply written in his report (included in the May Minutes) a recommendation amended thusly (in italics) "that the draft conditions of development consent as proposed at 12 February meeting of Council be amended to read …", less argument years after the event, would have resulted. Similarly, if the May Resolution had stated (amendments in italics): "The draft conditions of development consent considered at the 12 February meeting be amended to read…", then again less argument would have followed.
The Court has set out in [260(u)] above the operative provisions of the SRA letter of approval of 21 June 1991. The Court has concluded that this letter satisfies the terms of s 91A(1)(b), that the consent authority: "shall not impose a condition of its consent except with written approval ...". I interpret those words as requiring the approval to be expressed clearly and positively. With the use of the word "a" before the word "condition", the provision should be read, in effect, as "any", meaning that all foreshadowed conditions - each and every one - must receive written approval. A letter of approval can be expressed in terms such as: "all the proposed conditions are hereby approved". The words expressed by the SRA are adequately all encompassing when it referred to the conditions agreed to at the joint Applicant Council-SRA meeting of 17 April 1991. No reservations or exceptions were expressed.
It follows that the Court accepts as accurate the Applicant Council's closing submissions at pars 223-224: "223. In these circumstances, the only reasonable inference that may be drawn from the SRA (Handel) letter of 18 April 1991 is that, at the time that letter was written, the SRA had agreed to, and thus approved, a set of conditions and that the set of conditions it had approved was the set of conditions imposed pursuant to the resolution of the applicant of 14 May 1991 and notified to the SRA on 21 June 1991. 224. It follows that the SRA letter of 18 April 1991 constitutes 'the written approval of the applicant' within the meaning of s 91A(1) (b) of the EPA Act. There was no prescribed form of written approval. This was a written record of the approval. That suffices to constitute written approval."
It is well to keep in mind, in order to appreciate the context of this current rather complex analysis, that the Company Respondents' primary case is that the purported consent set out in the February Resolution was valid and that it was issued condition-less. Further, they argued that the May Resolution, expressed as a variation, was an invalid variation, as no amendment application had been lodged. I have already dismissed the Company Respondent's argument that a formal amendment of the purported consent contained in the February Resolution was required, primarily because that February Resolution did not issue a valid consent. Further, again as earlier stated, despite s 91(1)(a) providing a means by which the Applicant Council could have issued a consent, on its own volition, unconditionally, there is clear evidence that such a scenario was never within contemplation.

[69]

Interpreting the evidence

Bringing a sensible interpretation to the events that occurred between the lodging of the 1990 DA and the sending of the final Council letter relevant to this issue to the RTA on 21 June 1991 is required. Reviewing the conflicting submissions from the parties, the Court has reached the following conclusions: 1. Being a small rural shire council in 1991, the Court ought not have a high expectation of sophisticated expression in its documentation and with its administrative procedures, therefore it is appropriate to apply a degree of tolerance to informality and minor irregularity. 2. The Court should, where appropriate to do so, apply a presumption of regularity to the steps which were followed, guided by what is apparent from the documentary evidence as indicative of the intentions of the SRA and the Applicant Council at the time. 3. This is a case where the Court, standing back from the detail, should view what were relatively clear intentions at the time in 1991 for what they were: an applicant seeking development consent for a railway ballast quarry constrained by the limitations it proposed in its own EIS and DA; and a council that was intent on granting a consent for that which was proposed, a railway ballast quarry, subject to conditions which were agreed by the time of the Council meeting of 14 May 1991. 4. Although seemingly expressed in a final fashion, given words such as "be granted" in the resolution recorded in the February Minutes (Exhibit R-1, p 345), the February Resolution was not intended to be the final expression of the 1991 Consent. First, the highly relevant context immediately preceding the February Resolution in the February Minutes (Exhibit R-1, p 344): (a) confirmed that the SRA still had concerns regarding some proposed conditions; (b) reported that with respect to other conditions, the SRA officer Mr Peter Handel was ".. prepared to recommend acceptance of the other conditions"; (c) recorded that a council sub-committee would be set up to negotiate the finalisation of the conditions; and (d) directing that the SRA carry out required negotiations with the RTA. 5. Materially, the actual proposed conditions approved by the February Resolution incorporated in condition 11(b) the decision to set up a Council sub-committee to negotiate the final form of the road contribution condition; and in condition 11(c), the advice that the Applicant Council should negotiate with the RTA. It makes no sense for a consent to be considered final when it is cast in terms containing provisions such as those found in conditions 11(b) and 11(c). The Court considers that these provisions would be inappropriately uncertain in a final consent, but explicable when appearing in a document in transition. 6. The Court interprets the foregoing circumstances as indicating that the Applicant Council was aware at the 12 February 1991 meeting that it still required the SRA's approval of conditions, even those conditions not in issue. The Applicant Council effectively approved in principle, but not finally, the consent conditions it desired and so concurrently set up a process to resolve outstanding issues regarding the conditions, for example setting up a council negotiating sub-committee. On this interpretation, there was no final determination on 12 February 1991, rather there was, effectively, an interim resolution setting up a process to resolve outstanding issues regarding conditions, in relation to which both the SRA and the Applicant Council knew approval of final conditions would have to be obtained. 7. The real failure of the Applicant Council was to not properly record and communicate the steps being followed in the February Minutes and in the "interim" notification of the Applicant Council's position in its letter of 27 March 1991 (Exhibit R-1, p 355). If this interpretation is correct, it is a far lesser "evil", especially for a small rural shire council, than the alleged grant of a void consent, by reason of it pressing ahead to issue a consent in breach of s 91A(1)(b) requiring SRA approval of the imposition of the conditions. With the Applicant Council being fully aware that the SRA's approval of conditions was still required; with it setting up a process to resolve disagreement; with the 7 March 1991 "consent" document setting out that process of resolution (odd in the extreme if it was said to be a final set of consent conditions) - these are all elements indicative of an approval of a transition process, as distinct from a process concluded in February by the grant of a purported consent. The approved transition process led to the grant of consent on 14 May 1991, embracing (i) negotiations between the SRA and the Applicant Council, (ii) the receipt of a SRA letter of approval and then (iii) a formal Council resolution.
The Court considers that the practical approach it has adopted to this aspect of the case - whether approved conditions were imposed via the May Resolution - accords with the approach described in Project Blue Sky at [69]-[71], albeit that approach was described in the context of reconciling conflicting statutory provisions (footnotes omitted): "Conflicting statutory provisions should be reconciled so far as is possible [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos , Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was 'a known rule in the interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent,"
Although submitted in support of a different argument, the Court agrees with the propositions submitted by the Company Respondents, as summarised earlier in this judgment at [215] which adopts the legal maxim that there should be "a preference for the construction which preserves the validity of an instrument over one that would render it invalid". The legal authorities relied upon by the Company Respondent, as identified in that paragraph, are apposite, but not with respect to interpretation of the February Resolution, rather with respect to the May Resolution. Adopting that approach, also in the context of the principles set out in Project Blue Sky, the Court's approach to the 1991 Consent, in the form of the May Resolution, is appropriate.
The absence of greater descriptors of the 1990 DA in the May Resolution was briefly addressed in [260(o)] above, confirming that incorporation of the 1990 DA documentation was necessary to remove ambiguity and uncertainty. As described in [226] above, the Company Respondents sought to rely upon the evidence of Mr Walker, asking him to interpret the SRA correspondence and give his view of what occurred back in 1990/91. The Court found Mr Walker to be an unconvincing witness. His recollections were not reliable in the Court's view and were inconsistent with the "face" of the documentary evidence. His assertions that the SRA would never have agreed to a restraint on the mode of transportation of rock product were inconsistent with the SRA letter approving the conditions, including in particular, the negotiated final form of condition 6 which provided that the "applicant shall not permit the transport of greatly more than 30% of quarry product, by road on an annual basis without further specific approval of Council". The corroboration provided by the SRA letter of 18 April 1995 (Exhibit F) that the SRA "operates within the conditions of the development consent", specifically responding to complaints of a potential breach of condition 6, satisfies the Court that Mr Walker's interpretations are not to be preferred. In this regard, the Court accepts the submissions of the Applicant Council as summarised at [234] above.

[70]

The grant of the 1991 Consent - a footnote

Essentially as a footnote to its primary findings, although the Court has found that the May Resolution constituted a valid grant of consent and that that consent contained conditions which had gained the approval of the SRA, if the Court was wrong and that the Company Respondents' arguments regarding the issue of an unconditioned consent was correct, the Court does not believe the resultant outcome would be as the Company Respondents would have it. The Company Respondents would still be dealing with a railway ballast quarry on a constrained and identified site. The Court's reasons for reaching this conclusion are as follows: 1. The Court has already made three critical interconnected determinations: first, the Court has decided that the 1990 DA sought approval for a "railway ballast quarry" and it is for that development (and so only for that purpose and use) that the 1991 Consent was issued. The approved development remains that of a "railway ballast quarry" even if the consent was unconditioned. The Court explained at [189]-[208] above its reasons which have led to its characterisation of the Quarry as a railway ballast quarry. 2. Secondly, the Court has already determined that the 1990 DA and so the resultant 1991 Consent set out specific areas within which specific activities would occur 5 ha of land within Lot 5 for the extraction of stone; and 5 ha of land within Lot 6 for the ancillary haul road. The 1991 Consent could not have been issued with respect to other land, nor could it have been issued for something that was not sought, without express statements to that effect in the 1991 Consent. In this context, the Company Respondents' submissions, pressing the concept of an unconditioned consent, does not upset that finding. 3. The 1991 Consent did not allow the SRA to carry out all kinds of development, or all kinds of quarrying, on all of the land within the ownership of the SRA, ie the 52.2 ha. To the contrary, the authorised development was always to be within a known and accepted context: a particular proposed development with respect to a particular specified area. Conditions of development were not actually necessary to characterise the proposal, nor to limit the proposed activities to particular areas, however, without a doubt, incorporation of the 1990 DA documentation into the 1991 Consent assists in addressing the uncertainty on the face of that document. 4. Thirdly, the Court has already determined that incorporation of associated documentation into the 1991 Consent was necessary in order to determine that for which the 1991 Consent was granted, but also in order to determine the parameters of that for which consent was granted. One such parameter was the specific areas within which the proposed activities would occur, being the 5 ha areas within Lots 5 and 6 as was identified in the 1990 DA and the accompanying 1990 EIS. 5. The 1991 Consent necessarily had to be granted with respect to a particular proposal, which proposed for specific activities to take place on specific areas of land within the identified Lots. It was not a consent for unconstrained development over the whole of the identified Lots. As such, it necessarily follows that one must move back from that farcical end of the spectrum to a point at which some particularity is apparent in order to identify what was proposed and/or approved and with respect to which areas of the identified lots. This is necessary in order to achieve some certainty, certainty demanded by planning law, in order for the successful applicant, the planning authority and the public-at-large to achieve an understanding of precisely what was approved to be developed. 6. Having reached this conclusion, it is necessary to revert to the discussion earlier regarding the characterisation of that which was approved via the 1991 Consent. Having decided that the Quarry was always intended to be a "railway ballast quarry", even if the Company Respondents had been correct with respect to the issue of an unconditioned consent (which the Court has rejected), it is necessary to again confirm the parameters of a railway ballast quarry, as the Court has determined it. The elements were described earlier as including: (i) an intended rock product identified as railway ballast; (ii) an inextricable linkage to a mode of transport of the ballast rock product using predominantly railway rolling stock - which the 1990 EIS identified at 70% (Exhibit R1 p 150); (iii) associated infrastructure such as a dedicated railway siding, loading hoppers and related equipment; and (iv) an identifiable associated limitation on environmental externalities. This latter aspect obviously relates to the association of the Quarry to the usage of railway rolling stock. If the latter component of transportation was ended or significantly reduced, say by the transport of product via road transport to a degree where the bias in favour of rail transport is replaced with a bias in favour of road transport, then objectively that which is occurring at the Quarry is no longer that for which consent was obtained - a railway ballast quarry - rather it has become a more generic quarry which is reliant on road transport. 7. Focussing on the parameters of the approved railway ballast quarry on Lots 5 and 6. If, as I have found, the quarry product is no longer predominantly ballast and, whatever the product, is no longer predominantly being transported via railway rolling stock, with the conditions validly attached to the 1991 Consent then the transition of the mode of product transportation from predominant railway rolling stock to predominant truck road transport would be in breach. That breach would have been contrary to planning law, as breaches of conditions in planning consents are breaches of the planning law. However, in the hypothetical situation of the Company Respondents having succeeded with their unconditioned consent argument, the transformation of the permitted development from railway ballast quarry to some other more generic quarry would necessarily be interpreted as the carrying out of a use and development of land for which consent was not obtained. So, in short, with or without consent conditions, for the reasons explained, the Company Respondents would still be in a predicament - breaching the planning law.

[74]

Condition 1 - The "amenity of the neighbourhood" condition

Condition 1, as it appeared in the Applicant Council's resolution of 14 May 1991, being the resolution by which the 1991 Consent was granted, states as follows: "The development being conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise".
Assuming that condition 1 forms part of the 1991 Consent, the Applicant Council stated that the Court must address two issues in determining whether the Company Respondents have breached condition 1: first, what area constitutes "the neighbourhood" for the purpose of the condition and second, whether the development being conducted has "interfered" with "the amenity of the neighbourhood".
The Applicant Council argued that the Court should not construe "the neighbourhood" to refer to an area immediately proximate to the quarry development. Instead, it was posited that "the neighbourhood" should be read to include those areas directly impacted by the quarry development. In this respect, the Applicant Council sought to draw an analogy with the concept of "neighbour" in tort law: citing Donoghue v Stevenson [1932] AC 562. In support of this position, the Applicant Council relied upon the following passage from the decision of Graham John de Martino Pty Ltd v Parramatta City Council (1964) 10 LGRA 104 at 107: "The word [the locality] is, of course, not capable of precise and inflexible application to a given area of land for the extent of a locality may well vary with the purpose for which the expression has to be defined. In a context which comprehends injury to or interference with its amenities it will, generally speaking, be at least as extensive as the area in which the effect of the injury or interference may be experienced."
Thus, the Applicant Council submitted that the context of the word "neighbourhood" (in a sentence dealing with issues of amenity) supports a purposive interpretation of condition 1 so as to refer to those areas the subject of direct impact. The Applicant Council said that if trucks from the Quarry "are impacting upon the residents of Paterson, then that is the neighbourhood for the purpose of condition 1". Additionally, the Applicant Council submitted that any subjective narrow understanding that the Applicant Council had as to what was the area of direct impact (the neighbourhood) at the time of imposing the condition could not preclude the Court from properly adopting a broader interpretation of "the neighbourhood".
In assessing whether the quarry development has breached condition 1 by interfering with the amenity of the neighbourhood, the Applicant Council said that the Court should be guided by the following interpretation of "amenity": "[t]he 'amenity' of a neighbourhood is, in the ordinary use of language, the quality which it has of being pleasant or agreeable … meaning the pleasantness or agreeableness of the neighbourhood as it is in fact is [sic], in pursuance of an intention that it should not become less pleasant or agreeable": Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152 at 156.
On this basis, the Applicant Council argued that condition 1 requires the frequency of truck movements to not exceed that stated as the existing truck movements in the 1990 EIS. This is because, according to the Applicant Council, a higher frequency of truck movements "undoubtedly interferes with amenity" (regardless of noise generation). The Applicant Council referred to the below evidence in support of its claim that the Company Respondents have breached condition 1 by interfering with the amenity of both Martins Creek and Paterson. The Applicant Council explicitly denied that the alleged breach of condition 1 relates mainly to truck traffic travelling through Paterson. However, the Applicant Council did maintain that the increase in quarry-related truck movements since the grant of the 1991 Consent has significantly diminished the amenity of Paterson.
In support of its position, the Applicant Council relied upon the affidavits and oral evidence of the following residents as to the impact of the quarry development on their daily lives: Mr John McNally, Mr Frederic Ashton, Ms Kristy Buttsworth, Mr Christopher Atkinson and Ms Pamela Atkinson. It was said that significant weight should be given to this evidence due to the Company Respondents' alleged omission to challenge these lay witnesses on whether they correctly attributed the relevant impacts to the quarry development.
The Applicant Council said that the reliable evidence of Mr Ashton demonstrates that there was a very high number of truck movements through Paterson on particular days in 2014, 2015 and 2016 and that there has been a consistently (albeit "pulsing") high number of truck movements associated with the Quarry through Paterson. The Applicant Council noted that Mr Ashton had given evidence as to how this has resulted in sleep disturbance and other significant interferences with his daily life. The Applicant Council next drew attention to the evidence of Ms Buttsworth, who denied that the day-to-day level of noise from truck movements was acceptable to her. The Applicant Council also focused on the evidence of Mr McNally that on some days there could be 40 to 50 trucks going in one direction within an hour. The Applicant Council submitted that Mr McNally's evidence supported the proposition that there is significant day-to-day variation in truck movements; a proposition which it said was not reflected in Mr Tumney's expert noise evidence.
Moreover, the Applicant Council relied on the Court view as corroborating the evidence of the Paterson lay witnesses. It was said that "[t]he Court will also recall that the noise generated by the passing of [heavy vehicle] trucks was so loud that it did in fact prevent conversation".
With respect to the alleged interference of the amenity of Martins Creek, the Applicant Council relied on the evidence of three objectors to the pending SSD Application residing in Martins Creek. It was said that those "residents complain about the impact that the current operation of the Martins Creek Quarry is having on their daily lives". The Applicant Council submitted that the evidence of all three residents is that the blasting associated with the quarry operations is adversely affecting their lives. In particular, the Applicant Council drew attention to Ms Isherwood's evidence that she has perceived an intensification of blasting impacts since the Company Respondents took over the operations of the Quarry.
In light of the above evidence, the Applicant Council asserted that the amenity of the relevant "neighbourhood" has been interfered with and, consequently, that the Company Respondents have breached condition 1. To bolster this claim, the Applicant Council denied that the above evidence was not representative of the impacts suffered by other members of Paterson and Martins Creek. Indeed, the Applicant Council submitted that the evidence of Ms Tupper was that there has been a dramatic increase in community complaints and submissions about the operation of Martins Creek Quarry (Exhibit R-3, p 1,942). Finally, the Applicant Council said it was relevant that the Second Respondent stated, in its EIS lodged for the pending SSD Application, that it "… is aware that there are a number of circumstances where the current quarry operations and the associated transport operations impact on the surrounding community" (Exhibit R-3, p 1,667).

[75]

Condition 6 - the product transportation condition

Condition 6, as it appeared in the resolution of in the Applicant Council's resolution of 14 May 1991, being the resolution by which the 1991 Consent was granted, states as follows: "The applicant shall not permit the transport of greatly more than 30% of the quarry products, by road on an annual basis without the further specific approval of Council"
The Applicant Council noted that there is a material difference between the terms of condition 6 in the February Resolution and the terms of condition 6 in the May Resolution (which the Applicant Council said was the material resolution). However, the Applicant Council argued that, on either version, the Company Respondents have breached condition 6 because "[u]ndoubtedly there has been a significant exceedance of this condition". In support of this claim, the Applicant Council referred to its account of the historic and recent history of truck movements associated with the quarry development. In essence, this account of the evidence is as follows.
The 1990 EIS contained the following representations as to truck movements associated with the quarry development: first, that "[t]he level of truck movements will remain at the existing level of 24 movements per day" (which was, according to the Applicant Council, noted to equate to 12 truckloads) and second, that "[t]ruck movements may be expected to vary between nil and a peak of about 36 per day, ie a 50% increase" (Exhibit R-1, pp 166, 164 and 164).
The Applicant Council relied upon, inter alia, the August 2016 Traffic Impact Assessment (Exhibit R-2, p 1,403) (included with the EIS for the pending SSD Application) as evidence of the relevant historic truck movements between 2003 and 2015. The Applicant Council said that this demonstrated that: average weekday truck movements increased from an estimated average of 146 movements in the financial year of 2005 to 186 movements in the financial year of 2006; the estimated average weekday laden truck movements for the financial year of 2012 was 186; the estimated average weekday laden truck movements for the financial year of 2013 was 210; the estimated average weekday laden truck movements for the financial year of 2014 was 186; and the estimated average weekday laden truck movements for the financial year of 2015 was 202.
In addition to this evidence, the Applicant Council relied upon the evidence of Mr Ashton detailing his record of truck movements through Paterson for 15 September 2014, 3 November 2015 and 16 November 2015. On these respective dates, Mr Ashton recorded the following number of relevant truck movements: 339, 415 and 470. With respect to 15 September 2014, the Applicant Council submitted that the evidence of Mr Ashton is corroborated by Exhibit PW-1, which was identified by Mr Walker as "an excel spreadsheet which records all weighbridge and sales transactions for the Quarry from 1 December 2012 to 31 August 2015". Exhibit L, an extract of that data for 15 September 2014, was said by the Applicant Council to record the equivalent of 340 truck movements for that day. The Applicant Council submitted that this corroborated Mr Ashton's evidence for that day and allows the Court to rely on his evidence.
Finally, the Applicant Council denied that it had granted approval, within the meaning of condition 6, to the transport of (greatly) more than 30% of quarry products by road (on an annual basis). The Applicant Council submitted that there was no evidence that it had specifically granted such an approval with respect to condition 6.

[76]

Condition 1 - the "amenity of the neighbourhood" condition

The Company Respondents prefaced their submissions as to the alleged contravention of condition 1 with the following "pleading matters". First, the Company Respondents stated that, contrary to the Applicant Council's closing submissions, "[t]here is no doubt that the pleaded allegation relates to the impacts of excessive truck movements, and not to anything else such as blasting". Secondly, the Company Respondents said that it was of concern that the Applicant Council has not appeared to seek any relief in relation to the alleged breach of condition 1. The Company Respondents speculated that this is because it would be a "near impossible task" to formulate a relevant court order to remedy or restrain the alleged breach.
The Company Respondents contended that the Court, in construing what is "the neighbourhood" for the purpose of condition 1, should only consider "the area immediately affected by the operations of the Quarry". On the Company Respondents' case, condition 1 does not apply to the amenity of Paterson because it is "located some 6 or so km from the Quarry". The Company Respondents said that the correctness of this interpretation was apparent if one properly accords the word "neighbourhood" meaning from its context: citing Lucas v Mooney (1909) 9 CLR 231; [1909] HCA 58 at 236 and OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen (2006) 150 LGERA 154; [2006] WASCA 270 (OSB Operations Pty Ltd v Jansen) at [64].
More specifically, the Company Respondents submitted that various other conditions of the 1991 Consent - such as conditions 8, 10, 12 and 17 - demonstrate that the focus of the Applicant Council was on a limited geographical area surrounding the quarry land. If recourse to the 1990 EIS were to be permissible due to the ambiguity of the meaning of "neighbourhood", the Company Respondents submitted that it is significant that the 1990 EIS limited its consideration of affected residences to those within the immediate proximity of the Quarry (less than 1 km away).
The Company Respondents denied the allegation that they have breached condition 1. In assessing whether the Company Respondents have contravened condition 1, the Company Respondents said that the Court should give the condition a practical operation so as to avoid the condition operating such that any interference with the amenity of the neighbourhood constitutes a breach. Moreover, the Company Respondents submitted that condition 1 should be understood in its context and so as not to constrain total production, truck movements or hours of operation if there are no relevant constraints. The Company Respondents sought to rebut the Applicant Council's allegation of breach by providing a substantially different analysis of the: evidence of truck traffic in Paterson, relevant air quality evidence and blasting impacts on Martins Creek. Truck traffic
The Company Respondents contended that the layperson evidence relating to the truck traffic impacts upon three Paterson dwellings does not provide a sufficient base from which to assume that other properties in Paterson suffer from similar impacts: citing, by analogy, Attorney General v PYA Quarries Ltd (1957) 2 QB 169 at 184. Of this evidence, it was said that the evidence of Mr McNally - as the owner of the most affected dwelling and as a person who works from home - should be given the greatest weight. The Company Respondents emphasised Mr McNally's evidence that, contrary to the situation from early-to-mid-2014, "the current level of truck traffic is acceptable" (T357.9-12) and that 60 truck movements an hour was "within the bounds of reason" (T361.2-3). The Company Respondents said that it was a common position amongst the witnesses that the issue of truck traffic has improved since mid-2014.
With respect to the evidence of Mr Ashton and Ms Buttsworth, the Company Respondents suggested that both had accepted the truck noise as part of their daily lives by purchasing their property and deciding to renovate their dwelling. Finally, the Company Respondents submitted that there is no causal link between any breach of any condition and the sleep disturbance of the expert witnesses, which was said to be the main issue raised by the lay witnesses. The Company Respondents said that the lay witnesses had confirmed that they would suffer the same sleep disturbance even if the Quarry were operated according to what the Applicant Council accepted is permissible under the 1991 Consent.
The Company Respondents suggested that it was relevant to the determination of breach to understand the successful (according to the Company Respondents) efforts taken by the Second Respondent to mitigate any amenity impacts arising from truck traffic. The Company Respondents referred specifically to what it said was the assiduous effort of the Second Respondent to formulate, implement and strictly enforce a code of conduct for truck drivers and the Second Respondent's strategy of "spreading the truck movements out by more than one day".
The Company Respondents asserted that many of the impacts experienced by the relevant laypeople are at least partly the fault of the Applicant Council. The Company Respondents submitted that the Applicant Council has allowed the relevant road to deteriorate to an "exceptionally poor standard" despite the relevant payments made by quarry operators. The Company Respondents said that the condition of the road had been evident during the Court view and was confirmed by the layperson evidence. Additionally, the Company Respondents submitted that the Applicant Council's status as a customer of the Quarry means that it must accept some responsibility for the impacts of which it complains.
The Company Respondents argued that the expert evidence of Mr Tumney demonstrates that the projected differential of noise impacts between a scenario where the Quarry does not operate and actual measured conditions is 1.1 dBA (Affidavit of Mr Ray Tumney dated 26 July 2016, p 26). The Company Respondents submitted that the agreed evidence of the parties' acoustical experts demonstrates "that traffic noise levels in Paterson are relatively insensitive to the presence or absence of trucks from the Quarry". Moreover, the Company Respondents drew attention to the finding of Mr Tumney that the increase in noise level attributable to the Quarry at affected residences was "within the allowable increase criteria" under the "NSW Road Noise Policy"
Finally, the Company Respondents suggested that the poor pavement condition and the vulnerable state of the relevant residences "appear to be making a greater contribution to noise levels at affected residences than the presence of traffic from the Quarry" (Affidavit of Mr Ray Tumney dated 26 July 2016, pp 31, 32 and 34 and Affidavit of Mr Bartlett dated 7 March 2016).

[79]

Condition 6 - the product transportion condition

Regardless of whether or not condition 6 (if valid) should be understood at being in the form it was in the February Resolution or May Resolution, the Company Respondents argued that the condition was "completely unworkable" and "incapable of being complied with: citing Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 at [31]. This is because the purported regulation of road transportation by a percentage rather than a tonnage figure "meant that it was impossible to commit to any jobs by road in the absence of knowing what the rail transport requirements were expected to be over any particular time period": referring to the evidence of Mr Walker (T644-645).
In the event that the condition is capable of enforcement, the Company Respondents posited that an issue arises as to the onus of proving the absence of the Applicant Council's "further specified approval". The Company Respondents submitted that, similarly to prohibitions in environmental planning instruments, the terms of condition 6 suggest that the onus to demonstrate an absence of consent lies on the person alleging breach: citing, by analogy, Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139 (Baiada) at 64 and Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 (Vines) at 519. If so, the Company Respondents asserted that the Applicant Council has not proven an absence of the "further specific approval" because it "has not assayed that task". If the Company Respondents bear the onus, then the Company Respondents submitted that the Applicant Council's "further specific approval" was obtained, as evidenced by the conduct set out below: citing Eco-Villages Australia Pty Ltd v Pittwater Council at [21]-[24] and [57]; and Baiada at 62.
The Company Respondents said that a further issue with condition 6 is whether it contemplates a "once-and-for-all approval" or an approval each time the 30% limit (or "not greatly more") is proposed to be breached. The Company Respondents contended that condition 6 - if given a practical construction capable of providing certainty - should be interpreted as contemplating a "once-and-for-all approval".
On this basis, the Company Respondents submitted that the following evidence, inter alia, demonstrates that the Applicant Council so approved: the Applicant Council's acceptance of a contribution by the SRA for road haulage (Exhibit R-1, p 376); the Applicant Council's resolution of 18 May 1999 recognising an existing use right to process 449,000 tonnes of bulk material per annum from Lots 5 and 6 (Exhibit R-1, p 656); the Applicant Council's agreement with RSA on 16 August 2000 (Exhibit R-1, p 695); the Applicant Council's granting of the 1991 Consent on 17 September 1999 to RSA for the erection and operation of fixed tertiary crushing equipment on conditions including the payment of road contributions (Exhibit R-1, p 663); and the Applicant Council's Deed of Settlement with Rail Corporation NSW (RailCorp) on 20 July 2010, which included RailCorp's agreement to pay for relevant road maintenance (Exhibit R-2, p 1,023).

[83]

The concept of "neighbourhood"

There is no contest that the village of Martins Creek, essentially and historically being a quarry settlement, and in close proximity to the Quarry, is within the immediate "neighbourhood" envisaged by condition 1. Whether or not the historic township of Paterson is within the relevant neighbourhood, being located some 6 or so kilometres from the Quarry, is a matter in contention. In order to examine the conflicting views as to whether condition 1 has been breached, it is necessary for the Court to examine the concept of neighbourhood in order to determine whether there has been an interference with the amenity of those places or areas within the district and locality of the Quarry which the Court decides is the relevant neighbourhood.
With respect to the identification of the neighbourhood, the Court adopts the submissions of the Applicant Council, summarised earlier in this judgment commencing at [276], finding itself in agreement with each submitted proposition. Specifically, with respect to the quoted passage from Graham John de Martino Pty Ltd v Parramatta City Council, the Court considers the interpretation of the word "locality" in that case, which can be interposed for the word "neighbourhood" for the purposes of interpreting condition 1, it is an entirely logical approach and appropriate to adopt. Consequently, as an example, if the area of impact of a component of quarrying development includes the areas traversed by quarry trucks transporting quarry product, then that area is within the relevant neighbourhood. Inherently, this exercise must be a qualitative one, involving an assessment of relevant differentials. So to determine "impact", a comparison of the state of a place without the relevant truck traffic compared to the state of the place with the relevant truck traffic would be necessary to determine whether the extent of the differential is such that, objectively, it would be considered to constitute interference with the identified amenity of that place.
The Company Respondents' submissions regarding "neighbourhood" are not accepted, suggesting as they did that the Court should be guided by the focus of the 1990 EIS which they submitted was far more proximate to the Quarry location, such as within 1 km, than the town of Paterson "located some 6 km or so from the Quarry". Obviously the context of a neighbourhood will vary from case to case, on the facts relating to any given development. The discernible impact, being measurable change that could be described as interference, should be accepted as at least one touchstone to determine the further boundaries of any given relevant neighbourhood. Obviously, having determined the further boundaries or extent of impact or discernible change from the pivotal point, in this case the Quarry, all that which falls within those boundaries can be taken to be within the relevant neighbourhood.
The Company Respondents relied upon the Western Australian Court of Appeal decision in OSB Operations Pty Ltd v Jansen, but that decision merely reinforces the view that I have indicated is appropriate. In short, although the OSB Operations Pty Ltd v Jansen judgment was very much concerned with the statutory interpretation of the words "neighbourhood" and "vicinity" as they appeared in the Western Australian legislation being scrutinized, assisted by resort to the Shorter Oxford Dictionary, in the end the Court confirmed at [65] that "[t]he word 'neighbourhood' must necessarily take its meaning from its context". So the Court in that case declined to simply focus on an apartment most immediately affected (situated above a function room), but rather the neighbourhood in context which comprised several apartments proximate to licensed premises being considered. The 1909 High Court case of Lucas v Mooney, also relied upon by the Company Respondents, simply reinforced this point again, wherein, O'Connor J observed at 236: "'Neighbourhood' is, no doubt, a word of very general application, and in the sense in which it is used in the Act, entirely relative. What is neighbourhood in one set of circumstances would not be in another set of circumstances".
The Court rejects the Company Respondents' preference for the relevant "neighbourhood" to be interpreted as being a limited geographical area surrounding the Quarry, not precisely defined but possibly just the abutting locality, essentially the village of Martins Creek. They stressed that the 1990 EIS was more narrowly focussed and that other conditions in the 1991 Consent focussed on a more limited area of consideration, citing conditions 8, 10, 12 and 17 as they appeared in the February Resolution. The Court finds the reference to those conditions was unhelpful, especially as the February Resolution conditions 8 and 10 did not remain in the May Resolution (and thus, the 1991 Consent) and condition 12 (which became 9 and was amended) and condition 17 (which became 14 and was also amended) address matters that of course concerned more proximate issues - notification of residents in earshot of blasting, and setbacks from abutting boundaries. In short, there is nothing to suggest that condition 1 should be so limited in compass.
A relevant context of the Quarry, in the Court's opinion, is the preferential truck route through the town of Paterson, viewed by the Court during its site view and the subject of much evidence placed before the Court, together with an absence of many alternative options. This means, in the Court's opinion, that there was a direct nexus between the Quarry and the trucks associated with the Quarry frequently passing through the town of Paterson. The inevitability of a substantial proportion of trucks passing through the town, being either a high proportion of the 26 truck movements envisaged at the time the 1990 EIS was considered in 1991 or the actual 470 truck movements recorded by Mr Ashton on 16 November 2015, satisfies the Court that, in every relevant sense, Paterson is within the neighbourhood encompassed by condition 1.

[84]

Assessing interference with amenity

The Court accepts the proposition that condition 1 contains ongoing obligations to comply from the moment the development permitted by the 1991 Consent commenced operations through to that time in the future when they will inevitably cease. It follows therefore that the assessment of any interference with the amenity of a place is not static, nor is it set by any assessment at the time the 1991 Consent was granted. At any point in time in the course of the quarry operations, it should be capable of being assessed whether there is any "unacceptable" interference with amenity. I have inserted the word "unacceptable" as, consistent with my focus on the differential, no Court would be concerned with de minimus impacts. The interference must be real, as compared to the pre-interference state.
The Court also accepts as appropriate for reference in this case the definition of "amenity" extracted from Cecil E Mayo Pty Ltd v Sydney City Council, as briefly quoted in [280] above, focussing upon the pleasantness or agreeableness of the neighbourhood. A fuller passage, at [156] of Sugarman J's judgment, is instructive: "The 'amenity' of a neighbourhood is, in the ordinary use of language, the quality which it has of being pleasant or agreeable. The Ordinance, in cl. 27, appears to use the expression in this sense, and to refer not to potential amenity (that is the capacity which a neighbourhood may have for being made pleasant or agreeable) but to an existing condition of affairs. Neighbourhoods differ greatly in this quality of amenity, and it may be, and probably is, the true view that the Ordinance uses the term 'amenity' in a relative rather than in an absolute sense, - that is to say not as referring to conformity to some generally accepted standard of amenity but as meaning the pleasantness or agreeableness of the neighbourhood as it in fact is, in pursuance of an intention that it should not become less pleasant or agreeable…It is possible that the preservation of an existing balance of uses may be a means of preserving the amenity of a neighbourhood, in this sense. That is a matter involving consideration of the character of the neighbourhood, the nature of the existing uses, the way in which they are balanced, and the sort of disturbance of existing balance which is in question".
Accordingly, "amenity" is another qualitative term, requiring a consideration of the pre-existing states of pleasantness and agreeability. The Applicant Council submitted that one baseline from which one could assess interference with amenity was the approved level of truck movements which was effectively incorporated into the 1991 Consent. For instance, in the Introduction section (Exhibit R-1, p 150) of the 1990 EIS (which the Court has already determined is, by necessary implication, incorporated into the 1991 Consent so as to provide the requisite understanding of and context for the conditions of consent) there was a reference to "24 truck movements per day", although there were some qualifying words referring to variability. It was argued that a high frequency of truck movements "undoubtedly interferes with amenity" - the approved level of truck movements setting the baseline. As indicated earlier in the Court's summary of the Applicant Council's submissions, the neighbourhood the Applicant Council considered relevant included both Martins Creek and Paterson.
As mentioned at various stages in this judgment, particularly in that section examining whether the development proposed in the 1990 DA was to be a "railway ballast quarry" as distinct from a more generic quarry, the Court has concluded that a key environmental and amenity management component of the railway ballast quarry was the agreed limit on truck transport by requiring "not greatly more than 30% of the quarry products" would go by road on an annual basis. This necessarily meant that the other 70% or so of products would have to go by rail, a key component, as the Court has found, of a railway ballast quarry. Therefore, in determining the baseline of amenity within the relevant neighbourhood, it follows there is a nexus to the 30% limit set in the conditions of the 1991 Consent. Extrapolating that argument, increasing truck traffic to (improperly) accommodate the transport of greatly more quarry product by road, can be presumed, as a starting consideration, to likely interfere with the amenity of the neighbourhood. I will return to what is meant by "starting consideration" later.

[85]

The evidence on amenity impacts

As summarised earlier in this judgment, starting at [282], the Court received affidavits and heard oral evidence from lay witnesses describing how the quarry development has impacted upon their lives. Noting that counsel for the Company Respondents did not directly challenge the evidence of these laypeople, the Court found the evidence of these witnesses telling and persuasive, subject to some qualifications. The Court is convinced that by reason of the truck traffic, attributable to or associated with the quarry operations, passing within proximity of the respective locale or vantage point of each person, the amenity which they could enjoy, compared to the baseline, has been interfered with. The Court has summarised at [285] above the Applicant Council's analysis of some of the lay witness evidence placed before the Court. The Court's post-hearing review of the witness affidavits and of the transcript of their oral evidence, confirms that the Applicant Council's summary in its submissions is a fair representation of the evidence.
Returning to my earlier reference to the "starting consideration", it is however also relevant to consider the evolving amenity context of their respective locales, that is the general increase in traffic impact due to general traffic unrelated to the Quarry. If there is a general increase in adverse impacts on amenity, then the relativities must be taken into account. In short, if the ambient noise and vibration level of traffic has significantly increased since 1991, then with respect to the question whether the quarry-related truck movements are interfering with the amenity of the relevant neighbourhood, that assessment must be carried out in that evolved context. In other words, the baseline from which one determines "interference" moves or evolves.
In simple terms, if the originally contemplated 24 truck movements per day were subsequently swamped by, say, regular movements of 200 trucks from another industry unrelated to the Quarry, then the impact of an increasing number from the 24 quarry truck movements would be assessed against that evolved context. The relevant baseline would have shifted.
It was clear from the evidence before the Court, as emphasised by the Company Respondents in their submissions, that since the 1991 Consent, general traffic through Paterson, including truck traffic, has increased over the intervening years - an unsurprising observation given the passage of 26 years up to the Court hearing. In this respect, the expert evidence of the Company Respondents' traffic engineer Mr Ray Tumney was instructive. So, when considering the Applicant Council's submissions on condition 1, the Court necessarily considered and applied that evolved context to the evidence the Court received. The Court accepts that general traffic volume, including truck traffic, has increased since 1991, however, the Court is also satisfied that the truck traffic attributable to the Quarry has disproportionately and very significantly increased, far beyond that originally forecast or envisaged at the time of the 1991 Consent. Within that evolved context, the Court has concluded that the quarry-related truck traffic is sufficiently discernible to be caught by an assessment that concludes, by reference to the impacts of those trucks, that the amenity of the neighbourhood has been, and is being, interfered with. The Court would go further, concluding that the amenity has been unacceptably interfered with, to the extent that it has been, and is, contrary to condition 1 of the 1991 Consent.
In reaching the view that the amenity of the neighbourhood is being interfered with by reason of the quarry-related truck traffic, the Court accepts that Mr Todoroski's evidence regarding air quality goes some way to indicating that, as judged against air quality standards, even with the effect of the truck traffic, those standards are not breached in Paterson. However, the Court cannot dismiss the lay evidence in this regard as being untenable. Again, it is a question of which baseline to use to determine acceptability. Given that condition 1 was a requirement set by the 1991 Consent, on an expected basis of a certain number of truck movements, the massive increase in volume of truck traffic, which the Court accepts as true, must necessarily have given rise to a very significant difference in amenity conditions to that which prevailed 26 years earlier. Counterbalancing that observation, the Court accepts the evolving context, the increase in traffic generally since 1991, in relation to which the Company Respondents have no responsibility, would obviously increase ambient traffic noise and cause a deterioration in air quality adjacent to the truck route. However, that evolved context is not enough, in the Court's assessment to discount the impact of a massive increase in quarry-related truck movements.
Further, as the Court observed during its site view, and as the Company Respondents stressed in their submissions, the main road through Paterson was in a clearly poor state. The Court accepts that this would exacerbate issues such as noise and vibration associated with truck movement. However, if there are hundreds more trucks passing down that road than were originally envisaged, and taking into account the "evolving context", it is not surprising the road has deteriorated. It is highly likely that the increase in truck movements has contributed to the poor state of the main road, and thus the further decrease in amenity in Paterson.
The Court was also not persuaded by two other arguments of the Company Respondents. First, the "coming to the nuisance" proposition that some of the lay witnesses had chosen to move to Paterson, and thereby must accept the adverse consequences. The Court rejects that proposition, as the condition 1 standard is an objective one, not judged by any particular individual. Secondly, it might be the case that the residents concerned who gave evidence came to the town with an expectation of a reasonable level of amenity disturbance due to proximity to truck traffic, but, the Court rhetorically asks, ought they be expected to tolerate unreasonable disturbance by objective standards? No real estate agent is going to say "don't move here because the truck traffic noise is really bad".
The tenor of the evidence that the Court received during the hearing can be gained from the following paragraphs from the Applicant Council's submissions. The point to be made, in the Court's assessment, is that the lay witnesses were fair in their description of the impact: they accepted that a degree of truck noise was expected by them and they also did not deny the volumes of truck traffic varied. Paragraphs 102-105 from the Applicant Council's supplementary closing submissions conveyed those points. "102 It was suggested to Ms Buttsworth that when she moved to Paterson she was aware of and accepted that she would experience impacts from the operations of the Martins Creek Quarry. In re-examination she denied that the level of impact currently being experienced was acceptable to her. The following question and answer was given (T 354.26-354.35): 'Q. When I asked you a question earlier on you told the Court, in effect, although you accepted that noise from trucks and vehicles would be part of your daily life, you didn't accept that the level of noise from the number of truck movements that you're experiencing, as described in your affidavit, would be part of your daily life? A. That's correct. Q. Do you accept that that level of noise from truck movements should be part of your daily life? A. No, I do not.' 103 Various scenarios concerning frequency of morning truck movements were put to the residents in cross examination. Mr McNally said that on occasion those hypothetical scenarios bore a resemblance to reality and yet on other days they did not, to the extent that there would be 40 or 50 trucks going in one direction within an hour. The transcript (T 360.18-360.33) records the following exchange: 'Q. Mr McNally, do you recall being asked some questions by Mr Lazarus beside me, about an assumed scenario which he said might or might not reflect reality concerning 20 trucks which passed by your house in a northerly direction, interspersed randomly over a period of an hour? A. Yes. Q. Does that assumed scenario bear any similarity with the reality of your life? A. On some days at sometimes it does, but others, we can have 40 or 50 trucks going in one direction. Q. Could you tell his Honour please, if you can, how often do you have a situation where that assumed scenario does bear some semblance with reality and how often do you have levels which are much more common than that much more numerous than that, I should say? A. It, it can change from day to day. Yesterday for instance was a particularly heavy day. This morning was much quieter.' 104 The evidence of Mr McNally supports the proposition, confirmed by Mr Walker, that there can be and in fact is, significant variation in day-to-day truck movements. The impact of those peak truck movements is not reflected in Mr Tumney's assessment of noise which is based on averaging those impacts. 105 It was not put to any of the lay witnesses in the course of cross-examination that the impacts that they were experiencing which they attribute to the Martins Creek Quarry were not in fact caused by that quarry. In those circumstances, the Court can and should give significant weight to the statements of those residents. Moreover, the Court experienced for itself the disturbance caused by passing heavy vehicle trucks attributable to the Martins Creek Quarry during the course of the view. The noise that the Court could hear was generated by those trucks was entirely consistent with the evidence given by witnesses. The Court will also recall that the noise generated by the passing of those trucks was so loud that it did in fact prevent conversation."
There was evidence placed before the Court that a degree of success had been achieved, through determined effort on the part of the Company Respondents in comparatively recent times, to lessen the effect of the truck traffic through the implementation of better truck traffic management. Certainly lay evidence confirmed that there was improvement in conditions since mid-2014. The Court accepts this evidence about that improvement, however the obvious issue is to determine the appropriate comparator. Are the improved conditions to be compared to a worse state just prior to mid-2014, or a far better state back in late 1991 when a mere 24 truck movements per day were envisaged?
The Court concludes that to determine the degree to which amenity has been interfered with (at any particular point in time when amenity is to be assessed), it is first necessary to accept that the ambient level of background traffic will have increased incrementally each year since 1991. Next, one would determine, for any given year, the level of quarry truck traffic which would not be "greatly more" than the 1991 Consent accepted level of 30% of quarry product travelling by road, company records could confirm that figure in any year. The baseline would thereby be set or at least estimated. It is to be noted that one of the amenity safeguards that was set by the 1991 Consent was condition 6 - "not greatly more than 30%" requirement. The reference to 24 truck movements in the 1990 EIS was not actually set as a condition; rather it was a contextual assurance.
In Exhibit E, a letter dated 9 August 2004, from the then Rail Infrastructure Corporation (later known as RailCorp) to the Applicant Council, a table was provided setting out, inter alia, the figures for the differing transport method of both ballast and other quarry product over an 11 year period from 1993/94 through to 2003/04. This table confirms that none of the "other product" material ever travelled by rail, despite the quantities ranging from 106,751 tonnes in the first year through to 599,888 tonnes in the tenth year. Even for ballast product, in no year was the quantity of product transported by road anywhere near as low as the "not greatly more than 30%" requirement. Indeed, only in the first five years did the rail transported ballast exceed road transported ballast.
Further, the Second Respondent's own material, submitted in May 2016 with the SSD Application, indicated that the non-road transportation at that time was nowhere near the 70% level, rather, it was down to a mere 2.5% of product. It is to be surmised that, despite the evolving context, there would be an inevitable impact - "interference" - from such a massive increase in truck volumes, sitting at 97.5% of quarry product transportation rather than 30%. Logic demands a circumstantial conclusion that such a rise in quarry truck traffic would cause unreasonable amenity interference, contrary to condition 1. In that context, whilst accepting the recent road management improvements for what they are, the conditions following traffic improvements would not be such as to reset the baseline back to the pre-30% exceedence, and so therefore not displace the overall conclusion. The longer-term yardstick determines whether, in terms of condition 1, there has been and is now interference with the amenity of the neighbourhood.

[86]

The assertion of impacts from blasting

The Applicant Council's analysis of the evidence of possible "interference" with amenity included evidence in relation to the noise of blasting and that the evidence relates to described impacts at both Paterson and Martins Creek. Further, reference was made to objector submissions made in response to the SSD Application which the Second Respondent has lodged in support of new consents being sought for the Quarry. The Court has summarised the Applicant Council's evidence regarding this material in [285]-[286] above, and has considered the original material placed into evidence. In assessing this evidence and judging the expressed observations of blasting against the standard in condition 1, being whether there is or has been apparent interference with the amenity of the neighbourhood, the Court has again considered it appropriate to apply the contextual approach to this assessment - the moving baseline as described earlier.
The Court has concluded, on the basis of the evidence before it, that there is indeed an impact on the amenity of the neighbourhood in the manner summarised by the Applicant Council in its submissions by reason of the described blasting. However, is that impact "interference" of the kind that would offend condition 1? As summarised at par 110 in the Applicant Council's supplementary closing submissions: "110 Ms Isherwood has been a resident of Martins Creek since before the 1990 development application was lodged by SRA. Ms Isherwood lodged an objection to the SSDA. (Evidence Book Vol 3 at pp. 1888-1889). She moved to the area some thirty years ago in pursuit of an 'idyllic country lifestyle'. She also noted that '…while the quarry was operational and run by RailCorp, the workload had minimum impact on our lives.' Ms Isherwood observed a marked change in the operations after 'Daracon' (i.e. the respondents) took over. She complains that 'previously the blasting resembled a faraway explosion it has now become so intense that the ferocity of the blast led me to believe an earthquake was rumbling up the road, shaking the house and rattling the windows. This is not something you quietly adapt to, it delivers the same instinctive fear every time.' She also complains about dust which she attributes to the quarry."
The question is whether this level of interference with the amenity of the neighbourhood is within acceptable parameters. Commencing with the amenity levels following the grant of the 1991 Consent, what is the relevant baseline amenity, in the context of blasting impacts, of the neighbourhood of a person living in Martins Creek or on rural land reasonably proximate to the Quarry?
The Court must accept that any quarrying operation on either of the Eastern Lands or the Western Lands would always have involved blasting. In that context, the Court cannot, with confidence, on the basis of the evidence before it, identify the baseline from which it might establish a comparison of blasting immediately following the grant of the 1991 Consent (that is, at accepted levels) and blasting at any particular point in time during the 26 years that have since passed. At the time the 1991 Consent was granted, the comparator would have been any extant blasting occurrences at the old quarry on the Eastern Lands, albeit that there had been periods of cessation over time, compared to the accepted level of blasting that would obviously be a component of the new quarry approved on the Western Lands by the 1991 Consent. The conditions prior to the 1991 Consent, which necessarily brought with it an expectation of increased blasting, are not the relevant comparator. That extant state of amenity plus the new blasting allowed by the 1991 Consent reset the baseline.
Logic would suggest that the frequency and scale of blasting would have a direct relationship in scale to the quantity of rock being blasted out of the quarry face. In circumstances where the Court has found that the operations at the Quarry have improperly extended far beyond that which was permitted, with extraction quantities being far greater than those described in the incorporated 1990 EIS, as being capable of being extracted from the identified reserves of quality andesite within the approved quarry area within Lot 5, it is conceivable that the blasting impacts are greater, probably more numerous, than those which would be accepted as reasonable interference with the amenity of the neighbourhood. However, given the absence of a reliable comparator, the Court is unable to reach a concluded view on the issue of the amenity impacts of blasting.
Having reached this conclusion, the Court observes that it sees no reason to question the veracity of the evidence placed before it, by witnesses such as Ms Isherwood. The Court accepts that those persons expressing their concerns regarding blasting have honestly described what they have experienced and how they perceive it. However, the difficulty for the Court is to confidently decide that the blasting experienced, as described in the witness evidence of three laypeople, or in the submissions to the SSD Application, is materially and unacceptably different to blasting that a person living within the neighbourhood of an approved quarry, of the scale of that approved by the 1991 Consent, should be taken to likely experience. Conceptually, there is a baseline of acceptable blasting necessarily associated with every quarry.
The Court is also aware that blasting is a highly regulated aspect of quarrying operations, with a range of controls applicable, none of which the Court was advised had ever been breached. On the contrary, it was submitted for the Company Respondents, as I have summarised earlier at [304], that none of the blasting limits had been exceeded. On balance, given the likelihood of compliance with the regulatory regime regarding blasting, there is further reason not to reach a concluded view based only on the layperson evidence regarding the blasting as to whether there has been contravention of condition 1 in that respect.

[88]

No relief sought in relation to breach of Condition 1

The Company Respondents, as summarised earlier at [293], raised the concern that despite the contentions submitted by the Applicant Council regarding condition 1 in the 1991 Consent, no actual relief is sought from the Court. This was submitted to be a consequence of the impossibility of identifying an appropriate remedy should the Applicant Council succeed in establishing its case. Given the conclusion the Court has reached with respect to the interference with the amenity of the relevant neighbourhood, particularly in Paterson, by reason of the massive (as the Court has concluded) increase in truck traffic - giving rise to all of noise, dust, vibration, traffic congestion and traffic danger impacts - over and above that permitted by the 1991 Consent, had the Court been requested to make a declaration to that effect, then it would have so declared.
Nevertheless, despite specific relief not being sought with respect to the breach, as the Court has found, of condition 1, there has been utility in it finding as it has done. There are three strong reasons justifying the Court determining the condition 1 issues, despite the absence of relief being specifically sought with respect to it. First, the Court has ruled as to the state of law, that there has been a breach of condition 1 and that breach is contrary to s 76A(1)(b) of the EPA Act. Confirming the rule of law is a critically important outcome in these proceedings - a matter already confirmed in the passage I cited, at [38] above, from Hillpalm at [71]-[73], and further reinforced in Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1; [2007] NSWLEC 681 (2007) 158 LG3ERA 1; [2007] NSWLEC 681 (Great Lakes Council v Lani) at [25].
Secondly, the breach of condition 1, being directly connected to the consideration of condition 6 is relevant to the exercise of discretion when it comes to the Court considering the appropriate relief it should grant in relation to the breach, which it has also found, of condition 6. In circumstances where the breach of condition 6 is quantitative, in distinction to the breach of condition 1 which is qualitative, a qualitative understanding of the consequences of the breach of condition 6 by virtue of the matters examined for the purposes of condition 1 is instructive and so informs the exercise of the Court's discretion with respect to condition 6. In short, it is not just about numbers, whether there has been an exceedance, it is also about the consequences for those within the relevant neighbourhood.
Finally, as I expand upon in [872]-[878] below in the section of this judgment addressing discretion, findings in this judgment will inform those involved with assessing the SSD Application. As I say in my examination of discretion, it will be important for those assessing the SSD Application to understand that the baseline from which they will be assessing the SSD Application is not a lawful quarry operating in accordance with its 1991 Consent and EPL 1378, rather the baseline - the comparator against which future decisions should be assessed is a non-compliant quarry operation in breach of s 76A(1)(a).

[89]

Qualitative vs quantitative assessment of the conditions

Before leaving the consideration of condition 1, the Court confirms that conditions such as condition 1 require a "qualitative" assessment. Hence the consideration of amenity requires the evolving context to be considered as part of the Court's assessment of whether that condition had been breached. By contrast, condition 6, which the Court will turn to next, requires a quantitative assessment. Although condition 6 is irrefutably, in the Court's opinion, an environmental safeguard and an amenity protection provision, (with an inextricable nexus to the characterisation of the development authorised by the 1991 Consent as a railway ballast quarry), the assessment of compliance with condition 6 is based more on quantity, or numerical compliance. With the condition focussed on maintaining an upper limit on truck transport, by imposing a quantitative limit on the transport of quarry product to "not greatly more than 30% of the quarry product", it is more fixed than condition 1. There is arguably, without more context, a capacity to increase truck numbers in circumstances where the quantity of quarry product increases lawfully, providing the 30% proportion is not "greatly" exceeded.
However, as earlier explained when dealing with Issue 1 - incorporation - above, the Court has determined that it was necessary to incorporate the 1990 EIS, in order to redress uncertainty, so as to provide an understanding of the scale of what was proposed in the 1990 DA, and thereby to understand the scale of the railway ballast quarry that was approved by the 1991 Consent. As examined at [379]-[399] in this judgment one feasible conclusion on an assessment of the body of evidence before the Court is that there is no longer any lawful operation occurring at the Quarry as the andesite resource would have been long exhausted and all that which has subsequently been occurring in recent years has never received development consent. Alternatively, or perhaps concurrently, if there is some vestige of the development approved by the 1991 Consent remaining, then there is a comprehensive breach on multiple bases of that consent.

[90]

Condition 6: Transport of quarry product

In relation to the product transportation condition 6, in its Amended Summons, the Applicant Council seeks the following relief in prayers 11 and 12: "11 A declaration that the First and Second Respondents are transporting by road more than 30% of the lawful annual production of the quarry material from Lots 5 and 6 contrary to condition 6 of the 1991 Development Consent 12 An order that the first and second respondents by themselves, their servants, agents and assigns, be restrained from permitting the transport by road of more than 30% of the lawful annual production of the quarried material from Lot 5 and Lot 6, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979."
Condition 6 of the 1991 Consent, as granted by the May Resolution of the Applicant Council states: "The applicant shall not permit the transport of greatly more than 30% of the quarry products, by road on an annual basis without the further specific approval of Council".
First, the Court considers the comma between the words "products" and "by" to be an aberrant typographical error which should be ignored. As noted earlier in this judgment, the word "greatly" was added to the earlier draft form of this condition (as appeared in the February Resolution). As determined earlier, on the basis of the evidence before the Court, the insertion of "greatly" was an outcome of the negotiations between the SRA and the Applicant Council which occurred at the meeting of 17 April 1991, and the SRA subsequently gave written approval to all conditions, including condition 6 in its final form, by its letter of 18 April 1991 (Exhibit R-1, p 376). That is the relevant context in which to consider condition 6.
The critical issue with respect to condition 6 is whether it has been and is being breached by the Company Respondents because "greatly more than 30% of quarry products" is being transported by road, which, on the evidence, is primarily via trucks. It should really be unnecessary to state the obvious, but the other 70% or so (noting that "not greatly more" allows a degree of tolerance, albeit an undefined tolerance) would travel via railway rolling stock. This type of split of the mode of transporting quarry product has already been accepted by the Court as a key characteristic of a railway ballast quarry, as distinct from a more generic quarry.
There is no dispute between the parties that over an extended period of operations at the Quarry to the current day, greatly more than 30% of quarry products have been, and are still, transported by road. The evidence book contained multiple documents, providing a perspective of decades of operation at the Quarry, and providing evidence that the Court accepts as true, which demonstrate that this exceedance is the norm. To illustrate just how stark is the differential, confirmed by the Company Respondents own witness and quarry manager Mr Walker, the Court refers to pars 168-169 of the Applicant Council's closing submissions: "168 A May 2016 ACOR report entitled 'Martins Creek Quarry: Report on Engineering and Transport' was lodged by the second respondent as part of its SSDA. (Exhibit M) That documents states that 'only 2.5% of total production is transported by ballast train.' (Exhibit M, page 170) 169 Mr Walker was asked about this representation. He said that he '…thought it was higher'. However when asked whether he had any reason to suggest that the statement made was inaccurate the effect of his answer was in the negative. He said 'I assume he's checked his data, yes. My recollection is it's higher than that, but I assume he's checked his data.' (Transcript 717, lines 13-39)"
The Court has already determined that, by reason of the restraint upon the amount of truck traffic generated by the Quarry, condition 6 constitutes a key environmental and amenity protection provision of the controls applying to the quarry operations. It is understandable why the contravention of the "not greatly more than 30%" requirement of condition 6 is highly contentious. Extrapolating the figure quoted earlier, contained in the Company Respondents' own SSD Application, it means that 97.5% of quarry product now travels by truck as compared to the "not greatly more than 30%" approved by the 1991 Consent. The Court can only conclude that 97.5% compared to 30% represents an extremely gross exceedance.
Despite such evidence, the Court has had to consider a multiplicity of propositions put by the Company Respondents, in nothing short of a "Gish Gallop" exercise, as to why the Applicant Council's case regarding condition 6 should not be accepted.

[91]

Does Western Lands quarry product morph into Eastern Lands quarry product?

First, the proposition that the 1991 Consent only applies to Lots 5 and 6, being the "new" quarry on the Western Lands adjacent to the "old" existing quarry on the Eastern Lands (as it was described in the EIS (Exhibit R-1, p 150), is perfectly correct. However, to then assert that the extracted rock, once processed (crushed into different grades) on the Eastern Lands site, is no longer "quarry product" originating from the quarry operations approved by the 1991 Consent is, quite frankly, a nonsense. The Company Respondents asserted that the amount of material processed and directly exported from Lots 5 and 6 is de minimus (referring to Exhibit R-4, p 2,301). They said that all "the quarry products" come from the Eastern Lands, as it is at that location the rock quarried from the Western Lands is crushed. So, it was said, as the trucks transporting the quarry product collect and depart from the Eastern Lands, condition 6 cannot apply to those truck movements. Therefore, they said, there is no breach of the condition.
The Court was disappointed that it had to deal with such a submission, and incredulous that it was even put. In circumstances where the Company Respondents are responsible for both the Western and Eastern Lands and conduct their respective functions or roles on both areas of land concurrently, it is indisputable that the quarry product extracted from the Western Lands is still quarry product from the Western Lands whether or not it has gone through or over a "staging point" or transitional handling, as the Court will describe it. If the Court were to accept that condition 6 was not to apply due to the rock, extracted from the Western Lands, having been moved from the Western Lands to the Eastern Lands, in the manner suggested by the Company Respondents it would be tantamount to condoning a device improperly conceived by the Company Respondents to circumvent their legal obligations.
Whether the extracted rock product travels in a rough, large, "unprocessed" boulder state directly from the Western Lands, or whether it is diverted down another track and then crushed somewhere, anywhere, on the Company Respondents' lands into smaller grade product, is quite irrelevant for the purposes of condition 6. Whether the Company Respondents might stockpile the rock product on either the Western or Eastern Lands is also irrelevant as far as condition 6 is concerned. What happens on the Eastern Lands is simply a transitional stage as the rock travels from the quarry face on the Western Lands to its transport route outside the Company Respondents' lands.
If the Court was to give any credence to this spurious argument, how should it treat a truckload of rock product, originally from the Western Lands that is lost beside a public road because the truck rolls, or if it simply dumps its load at a wayside stop, and then recovers the load and travels on through Paterson? Why would these transitional "changeovers" of the transported quarry product not be treated, in accordance with the Company Respondents' argument, as quarry product no longer from the Western Lands, thereby freed of the strictures of condition 6? Given that the Eastern Lands have been, at all times subsequent to the SRA occupation, operational components of the Company Respondents' Martins Creek operations, the Company Respondents' nonsense proposition would surely be stronger with respect to the transportation of retrieved dumped product on the side of a road. Neither scenario, the Company Respondents' proposition nor the Court's hypothetical suggestion, has merit and so must be rejected.

[94]

The Court is not persuaded that it was ever beyond the capacity of the Company Respondents to monitor their orders of quarry product and assign them appropriately to a mode a transport as required, or to track the proportions assigned to truck or rail respectively. With the assistance of modern technology, advance forecasting should be perfectly capable of determining whether one order or another via truck might tip the balance beyond the allowable "not greatly more than 30%". In short, contrary to the proposition submitted by the Company Respondents, there is no assistance to be gained from Athens v Randwick City Council at [31] wherein Hodgson JA stated: "..I accept the general principle that, to be enforceable, an order must be so expressed that the person affected knows, or plainly should know, what he or she is required to do or refrain from doing". The interpretation of, and compliance with, condition 6 does not represent a situation where the Company Respondents would be in any doubt as to what they were required to do or refrain from doing.
In short, compliance with condition 6 would oblige the Company Respondents to monitor the quantity of product being transported and incrementally add each quantum, as the case may be, to either the aggregated truck transport total or the aggregated rail transport total. Responsible compliance with condition 6 would require the Company Respondents to be alert to an approaching maximum percentage, to prospectively analyse market sales and orders, which would guide them to modify their allocation of product to one transport mode or the other. This would, presumably, mean that as the maximum percentage is approached with respect to road transport, the next orders would have to be allocated to rail transport.
The feasibility of the approach mandated by condition 6 is also to be presumed from the following facts: (a) the percentage approach was the very one put forward by the SRA in its own 1990 EIS as appropriate, as whenever the transport mode was addressed by the SRA it was always in terms of the 30% / 70% split; (b) the condition was the subject of negotiation at the meeting on 17 April 1991 and was amended at the request of the SRA by the insertion of the word "greatly"; (c) the condition was approved in writing by the SRA, in accordance with the then s 91A(1) of the EPA Act (Exhibit R-1, p 376); (d) no effort was ever taken to appeal the 1991 Consent; (e) when challenged by the Applicant Council on 13 March 1995 that the SRA was operating in breach of condition 6, the SRA replied on 18 April 1995 that it "operates within the conditions of the development consent …" (Exhibit F), thereby confirming it was operating in conformity, and raising no issues as to any difficulty in so complying; (f) the Company Respondents took over the Quarry knowing that the 1991 Consent was in place, with all the inherent operational requirements such as condition 6; and (g) save that the Second Respondents have apparently chosen to operate their quarrying business (effectively under the auspices of the First Respondent) in breach of condition 6, it was not until the proceedings before this Court, 26 years later, that it was alleged the condition was unworkable.
The Company Respondents' next submission challenging the Applicant Council's case regarding condition 6, was to the effect that the Applicant Council had not established that the Company Respondents (and before them, the SRA) had not obtained "further specific approval of Council" in each or any of the 26 years since the 1991 Consent was granted. The Court summarised the Company Respondents' submissions on this point earlier at [306]. They submitted that the onus rests with the Applicant Council and, in the event of a failure to do so, the Company Respondents ought be presumed to have obtained that further consent.
The Court rejects these propositions. The two cases upon which the Company Respondents rely by analogy, Baiada and Vines, are both distinguishable from the circumstances of this case. First, in this case the Applicant Council has been the consent authority throughout the 26 years since the grant of the 1991 Consent. In that capacity it has brought the proceedings, alleging that the Company Respondents have breached that 1991 Consent, including condition 6, knowing that if "further specific approval of Council" existed, it would defeat its entire case with respect to condition 6.
Secondly, the Applicant Council has placed into evidence voluminous material covering what must comprise almost the whole of the Applicant Council's file on the Quarry. Counsel for the Applicant Council, with their overriding duty to the Court, painstakingly took the Court through many dozens of documents in an evidence book approaching 3,000 pages in length, and required the Court to peruse many hundreds of pages of these documents. Throughout, Counsel for the Applicant Council have submitted that condition 6 has been breached by reason of the Company Respondents failing to ensure that the "not greatly more than 30% of quarry product" has not been exceeded. On the Company Respondents' argument as to onus, is the Court required to doubt that the exhaustive analysis of this material by counsel for the Applicant Council would not have revealed a "further specific approval" and if it had, then doubt that it would have not been disclosed to the Court, by counsel cognizant of their duty to the Court? I think not.
Thirdly, where there has been an instance of quarry production being permitted by the Applicant Council to exceed that originally envisaged by the 1990 DA and its EIS, eg the 1999 consent allowing the tertiary crusher, that has been clearly drawn to the Court's attention by the Applicant Council. It is to be presumed that the Council would similarly reveal a "further specific approval" if one were to exist. Fourthly, these Class 4 proceedings are civil, and as such, the criminal onus of proof does not apply. The Court is satisfied that, by the civil standard, the Applicant Council has made out its case on this point.
Finally, by reference to a range of documents, primarily the Company Respondents' documents, figures regarding the quantum of quarry product being transported by road as distinct from rail, up to and including recent years, there is clear evidence that percentages far greater than 30% of quarry product have been transported by truck. In these circumstances, in the face of this material, it defies logic that the Company Respondents would not produce at least one, if not more, "further specific approvals of Council" if any actually existed. In circumstances where counsel for the Company Respondents is similarly under a duty to the Court and, in accordance with s 56 of the Civil Procedure Act 2005, must assist the Court to achieve a resolution of proceedings in accordance with the "just, quick and cheap" imperative, it defies credibility that the Company Respondents would not produce a "knock out" document if it existed, in order to speedily dispose of a cornerstone of the Applicant Council's case.
In circumstances where, in the Court's opinion, a strong prima facie case of breach has been established on the evidence that was placed before the Court, I am of the view that the onus then shifted to the Company Respondents. I find support for this conclusion in what I set out in Penrith City Council v Konemann (2017) 225 LGERA 16; [2017] NSWLEC 79, at [156]-[157] which, although the point then in question was whether a continuing use right might exist, the reasoning in the following passages is apposite to the circumstances in this case: "156 I am of the opinion that once Penrith Council has demonstrated on the balance of probabilities that the purpose to which Lot 40 is and has been put is a prohibited use, the onus then shifts to the First Respondent to prove its case that, for instance, the property enjoys existing use rights for the land uses that are being carried out on the land. This is even more the case in circumstances where the Council has carried out extensive searches of its consent registers, albeit not as far back as the commencement of planning controls in the district, although the Court was assured the searches were as extensive as the records would allow. Given the nature of the orders that might be made in proceedings such as these, it is improbable that the First Respondent would not produce evidence of prior consents of which he is aware. If the realities are such that the First Respondent is unaware of any prior consents, but had an informal understanding of such consents, then the Court would expect to hear some description of what those consents might have been. In this case not the slightest inkling of earlier consents were mooted by the First Respondent. The Court must proceed on the basis that no such consents have existed. 157 The Court rejects the First Respondent's argument. These Class 4 civil enforcement proceedings are not in the nature of a criminal prosecution with its higher burden of proof. In the current proceedings, the onus rests firstly with the Applicant, Penrith Council to demonstrate that the current land use of the subject land is prohibited under the PLEP on the balance of probabilities. At that point, the onus moves to the First Respondent who must satisfy the Court that there is a plausible basis for the Court not to make the orders sought. One possible basis for not making orders, might be compelling evidence which is sufficient to satisfy the Court that use of the land falls within an item 2 (permitted without consent) category, such as home occupation; or an item 3 (permitted with consent) category, such as agriculture or dwelling house. Indeed, in this latter regard, evidence was placed before the court that established that development consent had been granted for a farm shed/garage of a specified size."
The final argument the Company Respondents raised in response to the Applicant Council's allegation regarding condition 6, which is summarised earlier in this judgment at [307], posits a possibility that the condition might contemplate a "one-and-for-all-approval" beyond 30%. This argument was put despite, in the Court's opinion, the condition clearly being a quantitative performance-based condition with an obvious intent to ensure that a "not greatly more than 30% of quarry product" per annum is not transported via road transport because of the environmental and amenity consequences of transportation above that level.
None of the matters in evidence referred to by the Company Respondents in support of this proposition support the proposition they press. Although it is true that there is material within the documentation that would indicate that on one occasion the Applicant Council accepted an increase in production level, to the 449,000 tonne level by resolution of 18 May 1999, related to the tertiary crusher, none of this material alters the 30% of quarry product approach of condition 6. The condition would operate just as effectively with respect to the original maximum of 300,000 tonnes envisaged in the 1990 EIS at the time of the 1991 Consent, or the 449,000 tonnes envisaged in May 1999, or the 2 million tonnes the subject of the 2007 EPL variation (which, of course, was not a decision supported by Council) (see Issue 10, examined later in this judgment). That is, "not greatly more than 30%" of quarry products, be it 300,000 or 2 million tonnes, is the requirement of condition 6. Of course, this "acceptance" of 30% of a greater production level would be predicated on the requisite consents for such increases in production being obtained.
In closing this consideration of the competing submissions regarding condition 6, the Court finds the Applicant Council's submissions persuasive, in contradistinction to the Company Respondents' submissions. On balance, the Court finds condition 6 has been breached and most probably continues to be breached to the date of this judgment, if the Company Respondents continue to approach their operations contrary to the Court's interpretation of the condition.

[95]

CONSENT TO EXTRACT A FINITE RESOURCE - THE MARTINS CREEK QUARRY CONUNDRUM

Before continuing to examine the remaining issues in contention regarding the Western Lands, and before examining the Eastern Lands issues, there is utility at this stage in the judgment to set out the Court's response to a conundrum that arises from its interpretation of the 1991 Consent. Essentially, on the basis that the Court has correctly identified the parameters of the 1991 Consent, as understood within the context of the incorporated 1990 DA with its 1990 EIS, given the limited area permitted for extraction of stone and the estimated reserves of the andesite in such a limited area, how is it that significant volumes of andesite rock are still being extracted from the Western Lands, some 14 years after the resource should have been exhausted?
The Court has decided that the 1991 Consent granted permission for the Quarry, with the actual area of land within which the extraction of andesite rock was permitted being limited to a designated 5 ha within a portion of Lot 5 to a depth of RL 40 m. The full extent of Lot 5 is 27 ha, therefore my finding is that the quarrying of andesite was not permitted on the balance of Lot 5. The Court has also accepted that Lot 6 was part of the land permitted to be developed under the 1991 Consent, in association with the quarrying activity on Lot 5, being utilised for ancillary works such as a haul road. The Court has determined that none of Lot 6 was available under the 1991 Consent for the actual extraction of andesite. The Court has accepted that the aggregate area approved for development under the 1991 Consent, comprising both the extraction and ancillary works, was always limited to 10 ha, being a mere portion of the overall extent of both Lots 5 and 6 which in total amount to 52.5 ha.
Due to the "silence" on the face of the 1991 Consent, the operative document of which is the Applicant Council's May Resolution, the Court has decided that it is appropriate to incorporate, so as to remove uncertainty and ambiguity, the 1990 DA and its associated 1990 EIS into the 1991 Consent.
The Court has then proceeded to examine the parameters of the 1991 Consent, informed where appropriate by the 1990 DA and 1990 EIS, in order to establish what was, and what was not permitted, so as to determine whether there have been exceedances which would constitute a breach of planning law, as contended by the Applicant Council.
Having determined that the quarrying activity (that is, the extraction for rock) was to be confined to the 5 ha area within Lot 5, the Court is informed by the incorporated 1990 EIS that the reserves of quality andesite rock to be extracted from the quarry pursuant to the 1991 Consent was determined to be within the range of 250,000 to 300,000 tonnes (Exhibit R-1, p 150). The Court knows that there was a larger reserve of andesite rock identified within the greater Lot 5 because in section 3.10 of the 1990 EIS (Exhibit R-1, p 164) it is stated that the estimated reserves are 7,360,000 tonnes of proven reserves and 11,224,000 tonnes of probable reserves. These figures were extracted from the geological investigation report which is Appendix 3 to the 1990 EIS (Exhibit R-1, pp 178-189). Obviously, estimates are just that, determined by exploratory drilling and analysis, hence it may be the case that more or less rock may actually be found and so extracted. Importantly, this report confirms that the area of investigation was the whole of Lot 5, stated in the report to be 27 ha (Exhibit R-1, p 179, first paragraph).
The fact that the geological investigation report provided a contextual understanding of the probable andesite reserves across the whole of Lot 5, does not cause the Court to question its decision that the allowed extraction of andesite was confined to the area delineated within the 5 ha portion of Lot 5. The Court has already determined that Plan 2, formed part of the 1990 EIS and was incorporated, as necessary to resolve ambiguity or uncertainty, into the 1991 Consent. That plan graphically displays, in a rough fashion, the maximum extent of area and depth within Lot 5 potentially available for andesite extraction ("potentially" as until extraction begins, estimated reserves are not proven).
Although Plan 2 is somewhat conceptual in its presentation, almost sketch-like, it nevertheless represents a schematic depiction of the area within which extraction was to occur, a plan which would necessarily be subsequently refined by engineers and geologists to "inform" the preparation of an operational version to be implemented on the ground by the quarry manager. It is to be noted that the "particularised" version of Plan 2 which was provided by the SRA to Mr B Hartcher on 15 October 1990, discussed above at [164] (Exhibit R-1, p 263), provides additional information regarding prospective extraction beyond the 1991 Consent approval, as it shows staggered extraction over five year periods, extending to a full 20 years, whereas the 1990 EIS indicated the proposal comprising the 1990 DA envisaged just a 10-plus year quarry life.
Although it is arguable that Plan 2 shows, in its sketch fashion, potential extraction beyond the 5 ha allowed by the 1991 Consent, albeit all within the polygon bordered by the dashed-line, the Court notes that Plan 2 would always be read in the context of the 1990 EIS, which repeatedly stated a 5 ha limit. Further, as decided earlier in the judgment, a key representation on Plan 2 was that the quarry floor would be set at 40 m RL. The Court accepts the Applicant Council's contention that the 40 m annotation on Plan 2 set another parameter of the extraction depth limitation. Again, as confirmed earlier, a 40 m quarry depth limit largely accords with the andesite resource depth estimates (Exhibit R-1, p 181, Table).
At the time the 1990 DA and 1990 EIS were being reviewed by the general public and by consent authorities, including the Applicant Council, all were informed by those documents that the proposal was limited in area and in depth, with a target andesite reserve to be extracted of up to 300,000 tonnes. Further statements in the 1990 EIS stretched that andesite reserve figure, most probably because an estimate of reserves is only ever an estimate. That is, the 1990 EIS represented that: "The reserves on the land are estimated to be in excess of 3,500,000 tonnes, sufficient for more than 10 years of extraction" (Exhibit R-1, p 150, fifth paragraph).
The Court can only conclude from the evidence that it was being represented by the SRA via its documentation that the further andesite reserves, presumably in areas beyond the precise area within the 5 ha in Lot 5 identified for the purposes of the 1990 DA, were not the subject of the 1990 DA and so, once the 1991 Consent was granted, were not included in the envisaged and understood quarry proposal now approved. As with many resource developments, it would have been anticipated by both the consent authorities and the public that the quarry then proposed might, once exhausted ten or so years later, be followed by a new DA seeking consent for a new or extended quarry.
It is clear from the explanations in the 1990 EIS that it was expected that the quarry being proposed was one limited in scale and, as a logical extrapolation, limited in operational longevity. Apart from the specific reference to "for more than 10 years", simple arithmetic confirms that conclusion. In particular the following passage helps to understand the parameters of the particular quarry proposal that gained approval via the 1991 Consent: "Estimated annual production is 250,000 to 300,000 tonnes. Some 70% of the production will be removed by rail and the balance by road. About 12 truck-loads, thus 24 truck movements per day are required to remove 80,000 [tonnes] per annum based on 50 weeks at 5.5 days per week and average loads of 23 tonnes"
The arithmetic shows that 30% of 300,000 tonnes equals 90,000 tonnes and 30% of 250,000 tonnes equals 75,000 tonnes, so a mid-range was being projected for truck transportation. If the reserves are taken as being 3 million tonnes, then at an annual production rate of 300,000 tonnes, 10 years' operation at the proposed quarry was being projected. With the stated higher reserve estimate of 3.5 million tonnes, at an annual extraction rate of 300,000 tonnes, the projected operations at the quarry calculate out at 11.7 years, falling within a reasonable tolerance of the "more than 10 years of extraction" range.
What are the ramifications of this analysis? If the Court is correct, as it has ruled, that the quarry approved by the 1991 Consent was to be limited to the 5 ha within Lot 5, knowing that the andesite reserve was finite, the proposal that was approved should have ceased many years ago, potentially by 2003, just 12 years after the grant of the 1991 Consent. Of course, it is conceivable that the quarrying operations could have been drawn out by slowing production, in which case the life of the quarry might be extended into additional years.
The evidence before the Court indicates, however, that rather than a declining quarrying operation at the Quarry, there appears to have occurred an exponential increase. As just one item of evidence selected from that before the Court, a letter to the Applicant Council from the Rail Infrastructure Corporation, dated 9 August 2004, headed "Martins Creek Production, Sales and Transport" (Exhibit E), forwarded a table in which it is revealed that in the 1993/94 year, the total production was 373,550 tonnes and then, with just two years being exceptions, the production figures progressively increase over the 10 years reported on to reach 772,983 tonnes in the 2003/04 year. The total production over the ten years covered by the table comes to a total of 4,534,637 tonnes. Assuming that there might have been a lag before operations began after the receipt of the 1991 Consent in May 1991, and hence the 1991/92 year might be disregarded, however, the production figures for the 1992/93 might also be material. That is, the more than 4.5 million tonnes calculated as extracted from the quarry since the grant of the 1991 Consent might not represent the full production figure to 30 June 2004.
On the basis of the foregoing, in the context of the higher reserve estimate figure in the 1990 EIS of 3.5 million tonnes of extractable andesite from the permitted quarry area within Lot 5, it is instructive to note that, 13 years after the 1991 Consent at least 4.5 million tonnes of quarry product had been produced from the Quarry.
The Court was informed that no further consents have been granted for new or expanded development at the Quarry since 1991. Yet, to the day of commencement of the Court hearing and probably beyond, the quarrying operations have continued unabated at the Quarry. With the Court having found that the 1991 Consent only allowed quarrying from an extraction hole to a 40 m depth within the designated 5 ha area within Lot 5 and that 14 years ago 4.5 million tonnes had already been extracted from the Quarry, one million tonnes greater than the highest reserve estimate, it is difficult to explain, if the quarrying was only occurring within the area permitted by the 1991 Consent, and without conceptualising some sort of andesite Magic Pudding, how it is that the quarrying has continued unabated.
Logic therefore demands the conclusion that the Company Respondents have been quarrying for many years from andesite reserves located beyond the permitted 5 ha area approved by the 1991 Consent. As an extension to that unpermitted operation, it follows that the baseline against which one judges compliance or otherwise with the conditions of the 1991 Consent, must surely also shift.
Although the issues arising with respect to the compliance or otherwise of the 1991 Consent conditions are examined in depth in the following sections of this judgment, some of the implications of this Quarry conundrum are conceivably as follows. With respect to the condition 1 requirement not to interfere with the amenity of the neighbourhood, the expectation of the continuance of a "reasonable" number of truck movements contemplated and allowed by the 1991 Consent, must logically be negated if the permitted quarrying should have terminated many years ago. So, arguably, all truck movement associated with the unauthorised continuing quarrying constitutes unreasonable interference with amenity. Likewise, any blasting associated with the unauthorised continuing quarrying could be seen as constituting unreasonable interference with amenity. Further, on that view, any extraction of material would constitute a breach of the environmental safeguards contrary to Condition 7(b).
Arguably any operations occurring at Martins Creek, where connected to the Western Lands, can no longer gain any "protection" from that which was permitted by the 1991 Consent, as none of the operations constitute an allowable continuance of the permitted land use. Accordingly, it is not inconceivable that all that is occurring extending beyond the permitted parameters of the development approved by the 1991 Consent is now being conducted in breach of the former s 76A (now s 4.2) of the EPA Act.
This conundrum gives rise to a question as to whether the 1991 Consent has "run its course" as the andesite resource which that consent allowed to be extracted must necessarily have been exhausted, most probably 14 years ago. Since that time, extracted rock must, logically, have been and is being sourced from areas not approved by the 1991 Consent. This would mean that the extractive activity and related ancillary operations that have been occurring since that time lack the required development consent, thereby being in breach of the former s 76A (now s 4.2) of the EPA Act. In short, as it appears that the Company Respondents are operating outside the 1991 Consent, then what is occurring is without the requisite development consent.
An issue that might be considered is whether the 1991 Consent can no longer provide any "cloak" of planning approval by virtue of it being exhausted. The Court is of the view that, in the circumstances of this case, there is an arguable proposition that the 1991 Consent constitutes an "exhausted" development consent. However, for the purposes of this judgment that is a question which need not be resolved.

[106]

Condition 7(b)

The Applicant Council contended that a disjunctive interpretation of condition 7(b) should be applied such that the condition is read to have three separate obligations: citing Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis Butterworths) at 66-68. That is to say that the condition required the Applicant Council to ensure the enforcement of: (1) all environmental safeguards proposed for the development; (2) all environmental safeguards required by the 1991 Consent; and (3) all other statutory approvals. A conjunctive interpretation, such that the effect of the condition would be to refer simply to other conditions within the 1991 Consent, was rejected by the Applicant Council on the basis that it "would result in the condition having no work to do". Moreover, the Applicant Council reasoned that a disjunctive interpretation is consistent with the fact that the other conditions of consent deal with matters (environmental safeguards) that were not proposed in the 1990 DA: citing conditions 7(a), 3 and 9.
On this basis, the Applicant Council submitted that there are three fundamental categories of environmental safeguards which were "proposed for the development" (see [412] above) that have not been enforced by the Company Respondents. In failing so to do, it is alleged that the Company Respondents have breached condition 7(b).
The first environmental safeguard applying to the development identified by the Applicant Council are those safeguards that restrict quarrying activities to a defined area of approximately 5 ha on Lot 5. The second category of environmental safeguards applying to the development includes those safeguards that limit the annual production of the quarry development and the associated truck movements. The third category of environmental safeguards applying to the development includes those safeguards that require the main product extracted from the quarry to be railway ballast consistent with the SRA specification.

[113]

Necessity of examining 1990 DA and 1990 EIS due to ambiguity as to proposed "environmental safeguards"

The consideration of the parties' competing contentions regarding condition 7(b) must start in the context of the finding the Court has already made regarding the incorporation of the 1990 DA and its associated 1990 EIS into the 1991 Consent. As was explained, it was necessary to incorporate these documents to the extent necessary to remove uncertainty and ambiguity so as to ensure that the 1991 Consent was properly understood within the correct context. At [132]-[134] above I said that the incorporation was not to impose a new or additional set of conditions, rather it was to remove ambiguity and uncertainty, or to paraphrase Macfarlan JA in Allandale, it was necessary in order to give the 1991 DA a sensible meaning that was otherwise absent.
With respect to condition 7(b), the incorporation of the 1990 EIS was a necessary step in order to understand the words "all environmental safeguards proposed for the development". However, as the Court's explained rationale for the incorporation of the 1990 EIS indicates, it was not on the basis that the "environmental safeguards proposed" were different to those "required by this consent and other statutory approvals". Sometimes a condition like 7(b) is described as a "boots and braces" condition, whereby it performs a catch-all role lest more specific environmental safeguard conditions fail to provide comprehensive protection due to their narrow compass, or there is a danger that, by some technical cleverness, the safeguard in question can be sidestepped. Drafters of these "boots and braces" conditions do face the danger of creating a condition that is redundant (because other more specific conditions already cover the ground), tautological or uncertain thereby endangering the veracity of that condition, and potentially others. However, with a sensible mindset on the part of both consent authorities and consent holders intent on achieving the underlying purpose of such a condition, these potential difficulties are not insurmountable. Well-drafted conditions are always preferable, but as cases before this Court have frequently shown, poor drafting frequently gives rise to issues of interpretation.
The Applicant Council's submissions as to how the Court should approach the interpretation of condition 7(b), as summarised earlier at [412] and following, has merit. As it was put, a disjunctive interpretation of condition 7(b) should be applied accepting that the condition gives rise to three separate component obligations. This interpretation confirms the "belts and braces" purpose of the condition.

[117]

A proposed limit on scale of development was an environmental safeguard

One of the debates regarding condition 7(b) focussed on whether there was a limit on annual production approved as an essential environmental safeguard when the Applicant Council issued its 1991 Consent. With the 1991 Consent, on its face, being silent on the question of annual production, the issue moved to consideration of the proposition that the incorporation of the 1990 EIS provided the missing words regarding such a limit, with such limitation being identified, by the Applicant Council, as one of the environmental safeguards falling within the ambit of condition 7(b). Obviously the underlying proposition was that a quarry with an annual production of 300,000 tonnes will have far less of an environmental impact than, say, a quarry extracting a million tonnes per year, because the lower production would mean, for instance, less transporting of quarry product and so less potential interference with amenity by reason of noise, vibration, smell (fumes) and dust.
Earlier in the judgment when the Court determined the incorporation issue, in addition to that discussed in [423] above, the Court explained that the incorporation of the 1990 DA and the 1990 EIS was necessary in order to clarify the parameters of that which was being sought and so that which subsequently received approval. The 1990 EIS did put forward a proposal for a railway ballast quarry of a certain scale, limited to a specified area delineated within 5 ha within Lot 5. Assuming for the moment that the Applicant Council was only envisaging approving a quarry to the scale proposed by the SRA, is the keeping of the approved quarrying development to that approved scale an environmental safeguard (falling within the ambit of condition 7(b)), was it simply one of the delineating factors defining or characterising the quarry that was actually being approved, or was it both? The Court has concluded that, effectively, it was both.
Planning proposals are frequently approved with limitations on capacity because without those limitations the environmental consequences are predicted to be unacceptable. As an example, a restaurant proposal with a maximum capacity for 100 seats might receive consent, whereas a larger restaurant proposal on the same site, say for 200 seats, might be refused for reasons of likely greater noise and/or likely greater parking inconvenience in the neighbourhood. A well-drafted development consent for the small restaurant would most probably incorporate the "usual amenity" condition, but additionally it would state, in a condition, "the dining capacity of the restaurant is not to exceed 100 seats". Extrapolating this example, let us assume the restaurant DA documentation, incorporated a statement of environmental effects (SEE), in which the applicant left no doubt that the proposal to be considered was for a 100 seat restaurant.
Cognizant that limitation on operational capacity is but one "tool" to protect environmental amenity, restrictions as to scale or location are similarly common approaches. So a variation to the above restaurant example might be a proposal with respect to a restaurant to be created within a three-storey building, with the proponent proposing that only the ground floor room be used rather than the upper floors. If a consent was granted for such a restaurant proposed in this manner, ideally the consent would contain a condition to the effect that the restaurant may only be conducted on the ground floor.
What then might be the situation if the consent authority concerned, perhaps a small rural shire lacking the resources to, or experience in dealing with, such planning applications, issued a poorly drafted consent? In response to the first restaurant scenario, what if a consent was issued containing no reference to the 100 seats proposed in the DA, but rather simply incorporating the "usual amenity" condition together with the "usual belts and braces" environmental safeguard conditions? In the second restaurant scenario, what if the consent simply issued for the street address of the building, rather than precisely stating, as the DA proposed, that the restaurant was to be limited to the ground floor? Perhaps the small shire had faith in the restaurant proponent's word, as expressed in the DA documentation, that the approved development would be operated as was proposed: 100 seats rather than 200 seats, or the ground floor rather than the whole building.
Returning to the case in hand, keeping in mind the Court's hypothetical restaurant consent, the Court has no doubt that the SRA was proposing a railway ballast quarry within explained and promoted parameters. In essence, the 1990 DA with its associated 1990 EIS was proposing that a railway ballast quarry would not have unacceptable environmental or amenity implications for the relevant neighbourhood as the scale envisaged would be perfectly manageable. Apart from the key safeguard being offered, that the proposal was for a railway ballast quarry as distinct from a more generic quarry, there can be no doubt that the product transport mode condition 6 with its "not greatly more than 30%" limit was another key limiting factor proposed and approved. For the purposes of condition 7(b), was it also the case that the annual production limit was a similar proposed safeguard, akin to the 100 seat proposal rather than the 200 seat proposal in my restaurant example? Alternatively, was the SRA's 1990 DA proposal always for a quarry simply limited in area, akin to the restaurant being proposed for the ground floor rooms as distinct from the whole building?
To rebut the suggestion that an incorporated EIS might be taken to have set an environmental safeguard by reference to the estimated 300,000 tonne maximum production level, the Company Respondents stressed the figures in the 1990 EIS regarding the reserves of rock, and suggested that, due to the large figures, the annual production rates proposed were simply statements reflecting current production levels and so should only be taken as estimates, not limiting factors. They referred to the calculated proven and probable reserves of 7,360,000 and 11,224,000 tonnes respectively (Exhibit R-1, p 182) set out in the geological investigation report in Appendix 3 to the 1990 EIS.
These submissions have to be seen in context. The Court believes the scenario that was proposed by the SRA shows that the Company Respondents' submissions misplaced their reliance on the quoted figures. First, the geological investigation report confirms that it investigated the whole of Lot 5, being 27 ha (see first paragraph on p 179 of Exhibit R-1). Secondly, as the Court has already found, the actual proposal before the Applicant Council was for a limited area within Lot 5, being 5 ha maximum. This is unambiguously stated earlier in the 1990 EIS (second paragraph on p 150 of Exhibit R-1): "The 'new' quarry will occupy about 5 ha …". Thirdly, in the earlier section of the 1990 EIS it is stated: "the reserves on the land are estimated to be in excess of 3,500,000 tonnes, sufficient for more than 10 years extraction" [emphasis added] (fifth paragraph on p 150 of Exhibit R-1), obviously a reserve figure related to a smaller area. (The reserves, of course, only relate to high quality andesite, hence although 5 ha is less than a fifth of the whole of Lot 5, it may not be surprising that the actual quarry site contains a higher concentration, and so tonnage, of andesite). Finally, the most telling and informative passage on that same page is as follows: "Estimated annual production is 250,000 to 300,000 tonnes. Some 70% of the production will be removed by rail and balance by road. About 12 truck-loads, thus 24 truck movements per day are required to remove 80,000 tonnes per annum based on 50 weeks at 5.5 days per week and average loads of 23 tonnes". [emphasis added]
The Court accepts there was no sunset proposal inherent in the 1990 DA documentation, which means the proposed "new" quarry was not limited to 10 years. Obviously the Consent itself was silent on that aspect, but even with the necessary incorporation of the 1990 DA, no additional light was cast on the duration of the operation of the proposed quarry development. The Court reaches this conclusion due to the many references to "estimates" with respect to both the reserves of the rock and the annual production rate. The Court has already found that, with respect to the actual rock extraction component of the proposal, the primary limiting factor proposed was the true quarry site, 5 ha within the larger 27 ha of Lot 5, together with a 40 m RL depth limitation.
The Court has also concluded that the product transport mode was a key proposed environmental safeguard, as indeed was the fact that it was a railway ballast quarry that was approved and not a more generic quarry. Provided those safeguards were met, the Court finds that the Applicant Council in May 1991 approved a quarry without limiting it to an annual production rate. In the context of the repeated reference to the rock resources in terms of "estimates", be it the reserves or the annual output, the Court finds that the 1991 Consent would allow the quarry to be exhausted at whatever operational capacity the quarry operator could manage, provided the critical restraints as to location, area, depth and transport mode were met, together with compliance with the amenity condition and the other environmental safeguards.
Reverting to the Court's restaurant analogy, the controls on the Quarry were not akin to a limit on the number of patrons to 100 seats, but rather akin to limiting the restaurant to a use of a room on the ground floor and disallowing the use of rooms on other floors of the hypothetical restaurant building. With the restaurant so approved, this might mean more patrons might be fitted into the ground floor; and so it would be with the approved quarry development, that the annual capacity might fluctuate up and down, and may exceed the estimated annual production predicted in the 1990 EIS.
As to the other arguments raised by the Company Respondents with respect to other components of the Quarry potentially being capable of being classed as environmental safeguards of the kind caught by condition 7(d), the Court has already determined many of the matters earlier in this judgment, hence it will not repeat itself. In summary, the Court has determined as follows.
With respect to the Company Respondents' arguments summarised at [403]-[404] above, the Court agrees with their overall conclusion with respect to there not being a restriction on annual production (but not on the precise basis expressed).
Secondly, with respect to the argument of the Company Respondents summarised at [405] above that the nature of a railway ballast quarry, as distinct from a more generic quarry, is not a more environmentally sensitive operation, their arguments are rejected. Although addressed a number of times at various points in this judgment, a key passage setting out the Court's reasons is found at [194]-[197] above.
Thirdly, with respect to the transportation restriction of "not greatly more than" provision, the arguments of the Company Respondents summarised at [406] above are rejected for the reason exhaustively explained earlier in this judgment at [325] and following.
Fourthly, with respect to the Company Respondents' submissions, summarised at [407] above, against it being accepted that there is a maximum of 24 truck movements a day, as the Court has said earlier, the number of trucks would be likely to increase if the quantity of output of production is greater. So the Company Respondents' case on this point is accepted.
Fifthly, as with the number of truck movements a day, for similar reasons explained with respect to there not being a maximum limit of annual production, there is not, in the Court's opinion an annual limit on trucking to 80,000 tonnes per year. The Court therefore accepts the Company Respondents' arguments summarised at [408] above.
Sixthly, with respect to the Company Respondents' argument, summarised at [409] above that there is no requirement restricting the extraction of stone to the area depicted on Plan 2 within Lot 5, the Court has previously rejected those submissions. The limitation of extraction to a 5 ha area within that delineated by the dashed-line polygon shown on Plan 2 is a critical environmental safeguard. In this regard, the Court agrees with the Applicant Council's submissions summarised at [415] above.
Finally, with respect to the Company Respondents' arguments, summarised above at [410], that the area of quarry development is not limited to 5 ha for quarrying and 5 ha for ancillary components, the Court has already found against those submissions, agreeing instead with those of the Applicant Council.
With the Court having reached differing conclusions with respect to the various arguments raised by the parties, it follows that not all the orders and declarations sought by the Applicant Council will be made. In summary, with reference to the Amended Summons, the Court will make declarations sought in prayers 1, 2, 4, 6, 8 and 11 and will make the orders sought in prayers 3, 5, 7, 9 and 12. However, the Court will not make the declarations sought in prayers 13 and 15, nor will it make the orders sought in prayers 10, 14 and 16.

[118]

The Applicant Council's claim that the First Respondent is carrying out unlawful processing on Lot 5

In relation to Issue 7 focussed on the alleged unlawful processing on Lot 5, pursuant to the Amended Summons filed 3 July 2015 the relief sought by the Applicant Council, in prayers 25 and 26, is as follows: "25 A declaration that the development being the installation and use of a Manufactured Sand processing plant and two mobile crushing plants by the first and second respondents on Lot 5 DP 242210 is being carried out without development consent in contravention of section 76A(1)(a) of the Environmental Planning and Assessment Act 1979. 26 An order that the first and second respondents remove the Manufactured Sand processing plant and two mobile crushing plants from Lot 5 DP242210 and cease using the said land for the manufacture of sand or the crushing of extracted material unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979."
In using a manufactured sand processing plant and associated facilities and two other mobile processing plants on Lots 5 and 6 to process extractive materials, the Applicant Council claimed that the Company Respondents are acting unlawfully because they do not have the requisite consent. The Applicant Council submitted that the 1991 Consent, which it said permits the use of Lot 5 for the purpose of a quarry winning material primarily for railway ballast, does not permit this processing of extractive materials. Additionally, the Applicant Council submitted that the use of mobile crushing plants on Lot 5 is not permitted by State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (SEPP 2007) because such use is within 1 km of a dwelling not associated with the extractive industry and is, therefore, precluded from being complying development: citing cl 11(2)(c). Alternatively, the Applicant Council said that a complying development certificate has not been obtained.

[121]

The outcome

In reaching its conclusions on the issues raised with respect to processing on Lot 5, the Court has carefully analysed all the submissions from the parties together with the evidence upon which they respectively relied. For the reasons set out below, the Court has found the contentions pressed by the Applicant Council to be largely persuasive and so are to be preferred to those submitted on behalf of the Company Respondents. Accordingly, the Court has decided to grant the relief sought by the Council in prayers 25 and 26. However, as will be explained in the section of the judgment at [879]-[891] below addressing Issue 11, being the consideration of discretionary factors, the Court has determined that it is appropriate to stay the order for a period of three months.
The 1991 Consent permitted a "quarry winning material primarily for railway ballast", alternatively described as a "railway ballast quarry", within the Western Lands. The Court's initial examination of what that permitted development constitutes is set out at [189]-[208] above. This is not a case where there is any claim that existing use rights apply to the Western Lands. Accordingly, the Court must take its lead from the 1991 Consent to determine what development is permitted on the Western Lands (and not, as would be the case if the characterisation exercise was focussed on identifying existing uses, from what is actually occurring on the Western Lands,). The Applicant Council submitted that the "processing of rock" on the Western Lands is outside that which the 1991 Consent allows. In rebuttal, the Company Respondents contended that such processing is ancillary to the primary use of the land.
Although a railway ballast quarry was the actual development permitted by the 1991 Consent, as determined earlier in this judgment at [189]-[208], it is nevertheless a species of "extractive industry'" which in the current LEP for Dungog Shire, LEP 2014, is defined as: "extractive industry means the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming."
As a railway ballast quarry is a particular sub-species of a more generic quarry, it is conceivable that some of the included activities in the wide ambit LEP definition of "extractive industry" are not relevant. A LEP definition provides assistance for understanding the parameters of a permitted development, but it is the consent in each case that should provide the primary understanding. In circumstances where a consent is issued for a specific constrained form of quarry, on the facts of each case some of the associated activities that appear in a LEP definition may not necessarily be permitted by the consent. That is the case pressed by the Applicant Council, as summarised above at [450]. The Company Respondents' submissions, in which they assert that sand processing and rock crushing are ancillary to the use of the land pursuant to the 1991 Consent, are summarised above at [451]. This Issue 7 is therefore primarily focussed on determining whether an aspect of the development and use that has been conducted - the processing of rock - comes within that which was permitted to occur on Lot 5.

[122]

Understanding the distinction between dominant and ancillary uses of land

In the Victorian case of Mollica v Shire of Bulla (1992) 9 AATR 157 (Mollica), Senior Legal Member Byard, as he then was, was called upon to make declarations on a referred question of law whether the sale and storage of loose gravel, sand and soil was either ancillary to a retail or wholesale plant nursery or whether it was a separate use. The determination in Mollica is instructive as it provides a useful understanding of the analysis required to determine such questions, and is thus pertinent to the case before me. The following passages, at pp 161-167, commence with the questions to be determined. "1. Whether as a result of the said permit and the Bulla Planning Scheme and having regard to the zone of Bulla Rural Zone and the actual use of the land, the land is being used for the purposes of bulk retail garden supplies of materials including gravel, sand, soil, bark etc in breach of the planning scheme or the permit. 2. Whether the sale of the materials described in paragraph 1 constitutes a use of the land, namely, peripheral sales, separate from the use permitted. 3. If the sale of the materials described in paragraph 1 does constitute a separate use, whether or not such use is ancillary to the use permitted. … … [i]f an activity (like the sale of bulk retail garden supplies referred to in question 1 above) is regarded as an ancillary use, then, in planning terms it is not a separate use, but it is part of the dominant use. Hence 'offices' on the 6th floor of the Myer Emporium in Bourke Street Melbourne would be offices in planning terms if located separately from the Myers Department Store (that is to say Myers shop) but in fact, being located as they are in and as part of the dominant use of shop, they are merely an ancillary part of the shop. In planning terms they are shop, admittedly part of a shop, and not a separate use as office. The third question fails to keep clear the distinction between a separate use and an activity that is an ancillary part of a single use. If there is a separate use in planning terms, then it is not an ancillary part of some other use. If it is ancillary to one use, it is not at the same time a separate use. …. … The 'purposes' as that term is used in that context were and are often called 'uses' in planning circles. Such a 'purpose' or 'use' may be a shop. A shop may involve a number of activities eg. receiving, unpacking, storing and displaying stock, selling it, wrapping despatches, delivering goods purchased by customers, keeping books of account, sending out bills to customers, receiving and banking cash, paying suppliers and staff, cleaning the premises and so on. If some activities were carried out in the shop premises that were not part of the shop 'purpose' or 'use', they would come within some other 'purpose' or 'use'. They could only lawfully be carried out if that other 'purpose' or 'use' was allowed by the planning scheme. If such 'purpose' or 'use' was only allowed subject to a planning permit, then such a permit would have to be obtained, even if 'shop' was an as-of-right use in the particular zone. An example of such other activities in relation to a shop might be a bank subagency or a post office agency. A bank agency is not really a shop. Technically a 'use' that is ancillary to another use, is not a separate planning 'use' at all, it is an activity that is merely ancillary to, and for planning purposes part of, the one use. … There are a variety of activities carried out on the land in this present case. The question is not; is there more than one use and if so are some ancillary to others? Rather it is; do these various activities constitute one planning use, or more than one, bearing in mind that a number of activities may be ancillary parts of a particular use. The expression 'ancillary use' is common enough, but it is frequently used in a shorthand way to mean activities that are an ancillary part of a use meaning 'purpose' in terms of Clause 5AAA. There may be activities that should be regarded as de minimis, in other words trifling and therefore suitable to be overlooked. (The maxim 'de minimis non curat lex' means the law does not concern itself with trifles). I do not want to exclude the application of that maxim to activities that are not ancillary but which are very minor or trifling. … Really 'nursery' and 'retail plant nursery' are an ordinary English word and phrase respectively and should receive their ordinary English meanings. In this context I think that retail plant nursery can involve the retail sale of such plants on the land. There may or may not be some ancillary sale of assorted goods that are not plants. Terracotta plant pots, stakes and ties, gardening books, packages of seeds or fertilizer, watering cans, secateurs and garden forks, gloves etc might well be found for sale in a retail plant nursery without being out of place and without constituting a separate use in town planning terms. Of course, such activities could become so extensive or of such a nature and include such items as to go beyond retail plant nursery and become, for example, a book shop or a hardware shop etc. There can be more than one use carried out on a piece of land. Whether the goods or services for sale, other than plants, are such by their nature or extent as to constitute a separate use is a question of fact that must be determined on the circumstances of the particular case. This involves drawing a line. However, in some cases the line may appear hazy. Although many cases are clear, others may be uncertain and such that reasonable views may defer as to how a particular instance should be categorised see Shire of Perth v O'Keefe HCA 110 CLR 529 and (1964) 10 LGRA 147.1 will discuss these matters at a later point. … I have come to the view that the Responsible Authority is correct. I have borne in mind the approach in the familiar passage from page 535 of the judgment of Kitto J in the High Court decision of Shire of Perth v O'Keefe 110 CLR 529 where it is said that such a task is not to be approached with a meticulous examination of the details of activities or a precise cataloguing of individual items dealt in 'but by asking what, according to ordinary terminology, is the appropriate designation of the purposes being served by the use of the premises at the material date'. Ms Rawson also quoted this passage and continued on where His Honour observed 'that will often be a question of fact and degree' and where he observed 'border line cases will inevitably arise in which opinions will differ'. Mr Young also referred me to Pacific Seven Pty Ltd v City of Sandringham 1982 VR 157 where Marks J adopted this approach. I do not find the present case to be particularly near the border line. I regard it as reasonably clear that the existing additional activities carried on since 1991 involving bulk sand and soil etc sales are not part of the wholesale or retail nursery or ancillary to either of them. In my view the sand and soil sales must be regarded as a separate, third use of the land."
Another example of this reasoning process is found in my own judgment in Saffiotti v Kiama Municipal Council (2017) 225 LGERA 136; [2017] NSWLEC 65 (Saffiotti). In that case the use and development of land for the purposes of a "dwelling", "domicile" or "dwelling house" was examined in the context of determining whether that use extended over the entire land, the planning unit, or whether it was confined to a portion of the land. In contradistinction to the facts as found by the Court with respect to the Quarry, that the 1991 Consent was only in relation to development on a specified and limited area within the overall land of the SRA, in Saffioti, the Court found that the relevant existing use, being dwelling use, applied to the entire site. At [83]-[87], the approach adopted to analyse land use highlights that common sense and common knowledge is required in order to identify the range and diversity of activities which might come within an overarching land use, thereby identifying what will be accepted as associated activities or uses ancillary to a dominant use, rather than as distinct independent land uses. "83 The extent and nature of the approved and therefore lawful existing use of Lot 117 for the purpose of dwelling should be understood in light of the ordinary meaning or understanding of that purpose of use. 84 In existing use cases the relevant use should not be described or understood by reference to the environmental planning instrument under which it has become proscribed: Shire of Perth v O'Keefe at 535; North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 at 61 and Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 at [34]-[36]. This is a case where the existence of an existing dwelling use right is not in dispute between the parties, only the physical extent of the existing use is in issue. 85 However, in the absence of any division of the land by title (or otherwise) or evidence of any area on the land being put to some other use, a dispute focussed on the extent of the existing use necessarily requires an examination of the characterisation of the use of land for the purpose of dwelling. Should it be determined that the lawful dwelling use was and is limited to a mere portion of a single lot or rather that it extends to the whole lot? The issues in this case require that question to be answered. If it is instructive or helpful to do so, resort may be had to dictionaries to elicit the ordinary meaning of a purpose or use, see House of Peace Pty Ltd v Bankstown City Council. However, for common terms such as 'domicile', 'dwelling' or 'dwelling house', little value is gained from such an exercise in this case. 86 Understanding the essential usage of a dwelling is assisted by a simple reflection on common domiciliary activities - activities which can be accepted as being common sense expectations within the scope of judicial knowledge. So with a dwelling, the use is readily comprised of activities involving people going about their normal domestic living: eating, sleeping, recreating, resting, playing, studying, gardening, keeping pets and so on. The list of domestic activity associated with a dwelling might be more or less diverse, depending upon the people living within the dwelling. For instance, an elderly retired couple's habitual use of their dwelling can be expected to differ from the habitual use of a dwelling occupied by a family with a number of active children. 87 The range of activities carried on within or associated with a dwelling can be expected to vary reflecting both the opportunities and constraints offered by the relevant physical environment - but such variation does not redefine the core dwelling use and its proper characterisation. It remains a dwelling despite the diversity of domestic habitation. So, for instance, a dwelling on a modestly sized block in Rose Bay with a small garden is unlikely to be a place where active outdoor family games are physically possible, whereas a family living in Bowral with a large backyard is more likely to be able to embrace a greater diversity of outdoor family activities, such as gathering around a barbecue with children running around, perhaps kicking a football. Despite these differences, both indisputably constitute a dwelling use."
The primary purpose of citing Mollica and Saffiotti was to provide examples of the analysis required in cases where there are differing interrelated uses or activities on land which need to be scrutinized in order to determine whether they come together as one overall development comprising dominant and ancillary components, or alternatively are shown on the facts of the case to be concurrent "stand-alone" land uses each requiring development consent. The applicable principles have been endorsed in this State by high authority, with the lead cases in relation to the distinction between dominant and ancillary land uses being the Court of Appeal decisions of Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157; and Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404. Glass JA in Foodbarn at 160-1 observed: "But no countenance is given to a general proposition that, where premises are used for two purposes, that which is not dominant is for planning purposes to be disregarded. The weighing of purposes was there undertaken in the course of deciding what use was being made of premises on which stood buildings used to store vehicles and plant in connexion with the business of carrier and also used to store produce for the customers of that business. There was a cottage used as the residence of a caretaker of the premises plant and produce. The purpose of the cottage was held to be industrial being ancillary to the dominant purpose gathered from a consideration of the character of the whole enterprise. In similar fashion it has been held that the use of a power-driven bottling machine which would be an industrial activity under normal circumstances would not be so classified if merely ancillary to a retail business (Mollica v. Marrickville Municipal Council. It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts. But the trial judge specifically found that sales by retail were not ancillary to other purposes of the defendants and no attempt has been made to subvert that conclusion. Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged."
In Baulkham Hills Shire Council v O'Donnell at 409-410, the following passage from Meagher JA further assists in understanding the applicable principles "Notwithstanding the principles laid down in Foodbarn, it does not follow that a use which can be said to be ancillary to another use is thereby automatically precluded from being an independent use of the land. It is question of fact and degree in all the circumstances of the case whether such a result ensues or not. When a resident uses his land to park his motor car at his house, he is no doubt not conducting an independent use of car parking; when an employer installs at his factory a canteen for his workers, no doubt he is not conducting an independent use of running a restaurant; when the Clarks grew vegetables for their table they were not conducting an independent use of vegetable growing. But when one use of the land is by reason of its nature and extent capable of being an independent use it is not deprived of that quality because it is `ancillary to', or related to, or interdependent with, another use. If a book publisher opens a sales room at his publishing house to sell his products, the selling of books is an independent use although ancillary to the use of publishing. The series of cases dealing with dual uses (of which the decision of this Court in Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206 is an example) illustrate the point: they show that a 'convenience store' and a petrol station are two independent uses, although the former is clearly ancillary to the latter. This is a fortiori the case where the 'ancillary' use has pre-dated the use to which it is said to become ancillary and when it has done so in circumstances where it was initially not 'ancillary' to any other use."

[123]

Common sense interpretation required to identify ancillary quarry activities

The Court is of the opinion that applying both common sense and an ordinary English terminology approach to the permitted development, being railway ballast quarry, it is necessary to consider the practicalities of such an operation. Identifying the practicalities of the operation of such a quarry helps to identify the ancillary activities that necessarily co-exist with the dominant land use, being the extraction or winning of stone. Essentially, the desired rock resource, andesite, is removed from its source deposit, by being broken away from its natural location via blasting. Having been blasted from a rock face or bed, the rock material to be taken away will inevitably be in many different physical states: there will be large irregular pieces of rock, perhaps huge boulders; there will be totally shattered material, down to fine gravel and dust; and there will be every shape and size of rock between those extremes. Accepting that the blasted rock is to leave the quarry as railway ballast for railway purposes, or as other quarry product for other markets, it is logical that most of the material, once blasted, must be broken down further in order to be placed in railway rolling stock or in trucks for road transport. In short, the material must be rendered manageable for transport. Further, as the rock material is to be transformed to the product required by the customer market, be it the railway or others, the rock would need to be processed down to the required grade in each case. For instance, evidence before the Court described the particle size range that is necessary for broken rock to perform the function of railway ballast.
The LEP definition gives an indication of a range of activities considered to constitute an extractive industry, none of which are surprising to this Court. The Shorter Oxford English Dictionary (3rd ed, 1980) defines "quarry" in its most relevant sense as "an excavation from which stone for building etc is obtained by cutting, blasting, or the like". The Macquarie Dictionary (Revised 3rd ed, 2001) defines quarry in its most relevant sense as "an excavation or pit, usually open to the air, from which building stone, slate, or the like is obtained by cutting, blasting, etc". Given that the quarry in question (as approved by the 1991 Consent) has been found by the Court to be a railway ballast quarry, it is instructive to also focus on the definition of ballast. In the Shorter Oxford English Dictionary, the most relevant definition is: "gravel, broken stone, slag, etc, used to form the bed of a railroad". Whilst in the Macquarie Dictionary, the most relevant definition of ballast is: "gravel, broken stone, slag etc, placed between and under railway sleepers to give stability, provide drainage, and distribute the load".
There are two key points to draw out of these dictionary definitions. First, there is a focus on the purpose or end use; secondly, there is a focus on the process to meet that purpose or end use. So, with respect to purpose, we find a reference to "stone for building etc" or "building stone"; and with process, we find a reference to cutting, blasting etc. If we then blend into the purpose component, the specifics of "ballast", being derived from "gravel, broken stone, etc" there is a logical conclusion to our inquiry. Reflecting on the guidance provided by the definitions just traversed, the Court is led to what it considers to be an inevitable conclusion: a key component of a railway ballast quarry, indeed a broader generic quarry too, is the breaking down of larger rocks to smaller rocks, all the way to gravel and "fines", by processes involving crushing, cutting etc. In short, processing has an inherent nexus to the extraction or winning of stone.
With the purpose of producing product inherent in the above-cited definitions of quarry, it follows that the processes of breaking down of rock that will occur at a quarry will be targeted to the particular quarry rock market being met. So, in the case of this process to produce railway ballast, it would be correct to accept that gravel, crushed to various grades, is usually produced on the site of the quarry by whatever processing is required. It would be logical to expect that fine material, such as gritty sand, would be concurrently produced as a by-product.
Accordingly, on the assumption for present purposes that the quarrying is occurring lawfully pursuant to the 1991 Consent, the Court agrees with the Company Respondents that the processing of rock on Lot 5 would be lawful as an expected, indeed necessary, ancillary component of operations at the Quarry. Further, to the extent that it would be necessary to stockpile rock material awaiting crushing and processing and then subsequently awaiting collection for transporting, such components of processing would also be a necessary ancillary component of operations on Lot 5 at the Quarry.
Reverting to the earlier discussion of the distinction between a dominant land use and an interdependent, subservient or ancillary land use, as the two NSW Court of Appeal cases show, what might be an ancillary land use in some circumstances, may become a co-existent stand-alone land use in other circumstances. In this case, the Court dismisses, on the evidence, the Council's contention that the processing occurring on Lots 5 and 6 is a stand-alone land use. However, that finding is subject to the proviso that the quarrying occurring must be lawful. The interdependency is a critical factor. If there was no quarrying of stone, there would obviously be no processing. If however, over time, there occurred a transformation of the ancillary processing of stone, by reason of significant up-scaling and/or by the introduction of significant quantities of externally-sourced raw materials into the processing, then what was once an ancillary land use might conceivably become a primary and separate land use. Inevitably an analysis of the facts in each instance of changed circumstances will guide a determination whether such a transformation has occurred.

[125]

When the dominant purpose becomes unlawful, ancillary purposes no longer protected

The Court now turns to the question of whether the quarry rock being provided for ancillary processing, whether on Lot 5 or 6, is derived from a lawful operation. All that has been said in [458]-[465] above with respect to processing being an allowable ancillary use is predicated upon the dominant use of the Western Lands remaining lawful. As was correctly identified in the Mollica decision (at 162), an ancillary use can only be allowable or lawful if the dominant use/purpose is itself lawful, being either permissible as-of-right or permissible with consent. Ancillary activities, such as rock processing, can only be lawful if the dominant permitted development is still extant. If however the only quarrying being carried on is taking place on land beyond the area permitted by the 1991 Consent, as the Court has found, outside the designated 5 ha area within Lot 5, then the cloak of protection (provided by reason of its characterisation as an ancillary activity to a lawful dominant use) afforded by the 1991 Consent is no longer available. If the dominant development is unlawful (due to the extraction beyond Lot 5 being without consent), then an activity ancillary to that dominant development is also unlawful.
As earlier explained on the basis of the evidence before the Court, it is inconceivable that the quarry pit approved by the 1991 Consent, confined as it was to the andesite resource on a specified 5 ha portion of land, could still be providing stone to today at the extraction rates revealed by the records contained within the evidence book. With the Court having determined that the quarry was to be restricted to a 5 ha designated area within Lot 5, with a quarry floor depth limited to 40 m RL, even if the most liberal interpretation of the probable andesite resource identified in the 1990 EIS was allowed, that is if some quantity beyond the 3.5 million tonnes was accepted, the evidence (set out in Exhibit E) indicates that from somewhere an additional 1 million tonnes of andesite had been obtained by the eleventh year after the 1991 Consent. It is inconceivable that 14 years later, the same quarry, within its allowed 5 ha limit, by reference alone to truck transportation of product, is still producing andesite at volumes considerably greater than was the case in the first 11 years.
Accordingly, the Court has concluded that the andesite being extracted, processed and transported, most probably since 2003, is being extracted from a location beyond that permitted by the 1991 Consent, noting that the original finite resource, permitted to be extracted was to a defined depth and within a restricted area. For the purposes of activities that are ancillary to the primary quarrying of rock, by bringing andesite in from another, unapproved, area, the ancillary dependency must be negated. The Court has concluded that that is precisely what has happened at Martins Creek: that extended quarrying operation could not be defined as extraction with development consent - it would have no resemblance to the permitted railway ballast quarry, as it would be beyond that permitted by the 1991 Consent. Of course, there would be nothing to prevent an applicant from applying to extract a newly identified resource, which may or may not be in an area associated with a former quarry, but that would require a new DA, seeking a new consent.
Consequently, in the light of the foregoing discussion, the Court finds that the finite resource of andesite in the approved location must have been exhausted, so it follows there is no longer a lawful development and use of land occurring in relation to which the ancillary activity of rock processing could legitimately occur. If the dominant purpose is no longer lawful, then the ancillary purpose cannot be lawful. It follows that the processing which has in recent years been occurring on Lots 5 and 6, such as the Court observed during its site view is still occurring, is unlawfully being conducted without the necessary consents.
As a minor footnote to the conclusion in the last paragraph, there is a need to consider the implications of condition 2(b) in the 1991 Consent. Condition 2(b) provided that: "All areas disturbed due to quarrying operations and the haulage of stone are to be fully rehabilitated to the satisfaction of both Council and the NSW Soil Conservation Service. Rehabilitation of the site is to be completed within 12 months following the completion of all extractive activities".
In circumstances where by condition 2(b) there is an obligation to rehabilitate the quarry hole within 12 months of the cessation of extraction activities on the designated 5 ha area in Lot 5, in the context of the Court's finding that the extraction that is occurring in recent times is unpermitted, it follows that that which was lawful quarrying must have concluded and so the rehabilitation obligation should have been enlivened, despite, obviously, non-compliance with the 12 month requirement. It is conceivable that some processing of rock to produce material that might be used in batter construction, levelling, and landscaping on site in order to meet the rehabilitation condition obligations would be allowable, and that would be a remnant ancillary task legitimately connected to the former dominant lawful quarrying, allowable by the 1991 Consent. However, from the Court's own observations, there was no indication that the processing viewed on Lot 5 would have had any connection with rehabilitation works, nor has any party suggested that such processing that has been occurring is being carried out to satisfy the rehabilitation requirement.
In the context of the conclusions I have reached, it is unnecessary for the Court to determine the Applicant Council's argument based on SEPP 2007, by which it was asserted the processing was not permitted by that policy. Similarly, the Court need not determine the further argument as to whether a complying development certificate would be required.
In conclusion, without there being a nexus between the processing being carried out on Lot 5, utilising a manufactured sand processing plant and the two mobile crushing plants, and lawful extraction of quarry rock, then the otherwise usually permissible continuance of ancillary processing must cease. Such processing could recommence if it became ancillary to lawful rock extraction, made lawful through the grant of a new development consent. Alternatively, such processing could be operated as a stand-alone industrial processing operation, but only if it obtained the requisite development consent. Absent such newly granted development consents, it is appropriate that the Court makes the declaration sought in prayer 25 of the Amended Summons and the order sought in prayer 26.

[127]

The Company Respondents' claim that the current use of the Eastern Lands is a lawful continuing use

The Company Respondents claimed that the current use of the Eastern Lands, which it called the processing area, is a lawful continuing use under s 109(1) of the EPA Act. The Company Respondents said that they would make good this claim by establishing the following: 1. that the proper characterisation of the use carried on in the processing area now and at all relevant times has been used for the purpose of a quarry, rather than for a more specific purpose such as extraction or processing, or a public utility undertaking; 2. that the land occupied by the continuing use is the whole of the processing area, and that this land has been used for the relevant purpose since, at the latest, 12 October 1965 which was the date on which the first planning control came into force which may have required consent for the use; 3. that use of the processing area by the SRA was permissible without consent from, at the latest, 6 April 1990, because in addition to being a quarry, it was railways development within the meaning of the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions 1980); 4. that during the currency of Dungog Local Environmental Plan 2006 (LEP 2006) use of the processing area was lawful on two alternative bases, first as a railways development under the Model Provisions 1980, and second under s 109(1) of the EPA Act; 5. that when control of the Quarry passed from the SRA to the Second Respondent on 1 December 2012, the use of the processing area continued to be lawful, but solely based on s 109(1) of the EPA Act; 6. that the relevant time at which LEP 2006 came into operation in relation to the processing area, within the meaning of s 109(2)(b) of the EPA Act, was 1 December 2012; and 7. that the Applicant Council has not proved that the use of the processing area as a quarry has enlarged, expanded or intensified since 1 December 2012.
The Company Respondents advanced the following alternative basis for their continuing use claim to that outlined above in 475 to (7) in the event that the Quarry was not railways development within the meaning of the Model Provisions 1980: "(h) … that the processing area was lawfully used for the purpose of a quarry prior to the coming into force of Ordinance 105 on 12 October 1965, which was the first planning instrument to impose a requirement for consent for the use; (i) that the use of the processing area for the purpose of a quarry has continued to be lawful pursuant to either s.107(1) or s.109(1) under all subsequent planning instruments between 23 May 1981 and the present day; and (j) that Council has not proved that the use has enlarged, expanded or intensified since the coming into force of s.109(2) on 3 February 1986."

[128]

Characterisation

Prior to articulating what they said was the proper characterisation of the use of the Eastern Lands, the Company Respondents set out the following outline of the relevant principles applicable to the characterisation of continuing and existing uses: 1. existing use provisions should be as liberally construed as the language in its context allows: Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359 at [67]; 2. in determining whether a use is protected by existing use provisions, there are two distinct steps: first, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use; and secondly, identify whether the use of the land thereafter is generally for the same purpose: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (Royal Agricultural Society) at 311; 3. the purpose of an existing use should be described only at the level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place: Royal Agricultural Society at 309-310; 4. the task of determining the purpose of a use involves an inquiry into what, according to ordinary terminology, is the appropriate characterisation of the purpose of the use: Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 at 535; 5. the process of characterisation is not to be approached through a meticulous examination of the details of processes or activities: Shire of Perth v O'Keefe at 535; 6. the approach generally taken is to construe the use broadly and to determine the appropriate genus (not species) which is the purpose of the use: North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 (Boyts Radio) at 59; 7. the use should not be described by reference to the planning instrument under which it has become proscribed. Definitions in an incoming instrument could not be relevant to determine the character of something which had been established over the period prior to that instrument coming into effect: Shire of Perth v O'Keefe at 535; Boyts Radio; and Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 at [34] and [36]; and 8. a useful means of comparison between the existing use and the current use is to stand on the site and compare the current use with the use that was being carried out at the material date: see Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd (2009) 3 ARLR 380; [2009] NSWLEC 197 (Shoalhaven City Council v South Coast Concrete Crushing) at [94].
The Company Respondents contended that the purpose of the use of the Eastern Lands is, and has been at all relevant times, that of a quarry. A proper application of the above principles dictates that the appropriate designation of the purpose being served by the use of the Eastern Lands has, since 12 October 1965, been that of quarry: applying the principle in Shire of Perth v O'Keefe at 535. The Company Respondents submitted that use of land for the purpose of a quarry involves more than blasting and hammering rock from the ground and includes some level of crushing and screening: citing Egan v Hawkesbury City Council (1993) 79 LGERA 321 at 326. Additionally, the Company Respondents said that this quarry use includes rehabilitation, at the appropriate time. The Company Respondents submitted that despite the cessation of extraction activities in 1993, the Eastern Lands continue to be used for the purpose of quarrying because of the "presence of the administration building, crushing and screening plant, the weighbridge, stockpiles, circulation areas and active rehabilitation, all of which were ancillary to the quarrying use".
In order to make good this claim, the Company Respondents said that they were only required to show that the use of the Eastern Lands for the purpose of a quarry has remained the same and has not been abandoned since, at the earliest, 12 October 1965. However, the Company Respondents did note that a quarry was established on the Eastern Lands by the Deputy Commissioner of Railways in 1914 or 1915. The Company Respondents relied on, inter alia, the following evidence.
With respect to the 1960s, the Company Respondents submitted that "Cost of Production" documents from the Department of Railways detailing the production details of the Quarry between 1964 and 1969 demonstrate that the activities on the Eastern Lands included stripping, drilling, blasting, crushing, screening, stockpiling and the loading of materials (Exhibit R-1, pp 605-609). This evidence was said to be corroborated by 1960s aerial photographic evidence and the evidence of Mr Martin relating to his work as a labourer at the Quarry commencing in 1968. In addition to providing evidence that extraction occurred on the Eastern Lands, Mr Martin was said to have recalled that, in the 1960s, there was a primary crusher and two secondary crushers on the Eastern Lands (affidavit of 18 February 2017 at [6]).
The Company Respondents also relied on the evidence of Mr Walker, who became the quarry manager in December 1984. The Company Respondents submitted that his evidence demonstrated that extraction and processing, primary crushing (using a fixed crushing plant), and secondary and tertiary crushing (using crushing stations and various mobile crushing and screening plants) were occurring on the Eastern Lands (Exhibit R-4, pp 2,308-2,310 and 2,352-2,553). This evidence was said to confirm that extraction activities ceased in early 1993 (Exhibit R-4, p 2,320), aside from some extraction-related activities such as rehabilitation, the stockpiling of materials and other ancillary uses such as administration buildings, roads, equipment sheds and so on. Mr Walker's evidence also demonstrates, according to the Company Respondents, that the Eastern Lands have continued (since 1993) to be subject to the essential quarry-related activity of rehabilitation: citing references to rehabilitation in the 1990 EIS and (purported) conditions of consent (Exhibit R-4, p 2,316) and the above mentioned ancillary uses.
In addition to advancing their case as to the characterisation of the purpose of use of the Eastern Lands, the Company Respondents also rejected alternative characterisations of the purpose of use.
First, the Company Respondents contended that it is not appropriate to narrowly characterise the use of the Eastern Lands prior to the grant of the 1991 Consent as a use for the purpose of the extraction of gravel and rock.
Secondly, the Company Respondents argued that the purpose of use should not be characterised as a railway ballast quarry. To do so would, according to the Company Respondents, be inconsistent with both the principle that a change in the end use of quarry products does not change the nature of use (citing: Shoalhaven City Council v South Coast Concrete Crushing at [94]-[96]) and the principle that historic changes in the manner of carrying on an industry do not change the use: citing Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 at [18]. Hence, in the present case, technological advances in processing quarry products (such as, on Mr Walker's evidence, the replacement of "bucket-blending" with a pugmill and pre-coat plant) was said to be "no more than an evolutionary change in the processing of materials": citing Jojeni Investments Pty Ltd v Mosman Municipal Council at [78] and Archibald v Byron Shire Council (2003) 129 LGERA 311; [2003] NSWCA 292 (Archibald) at [70]-[71].
Thirdly, the Company Respondents denied that the proper characterisation of the purpose of use prior to the commencement of the first planning controls was a public utility undertaking. The Company Respondents submitted that the term is an "artificial construct designed for a different, instrumental purpose, to classify and then exclude State related development from planning control, or at least Council or local control". In short, the Company Respondents said that such a characterisation, by relying on the application of terms derived from planning instruments, would be the result of an erroneous approach to characterisation for an existing use case (citing: Shire of Perth v O'Keefe at 535) and would be overly legalistic, overly broad, and produce results conflicting with the purpose of the existing use provisions.
Fourthly, the Company Respondents submitted that the characterisation of the use of the Eastern Lands should not be undertaken after excluding particular processes on the Eastern Lands on the basis that they involve "the blending of some small quantity of materials sourced from offsite with material sourced onsite". To do so would impermissibly rely on the application of the definition of extractive industry in historic planning instruments (citing: Shire of Perth v O'Keefe at 535) and impermissibly focus on individual activities, transactions and processes occurring on the Eastern Lands: citing Chamwell at 35. The use of the pugmill and pre-coat plant to blend this material was said to be subsumed in the larger purpose of the use of the Eastern Lands as a quarry.
In the event that the Court was to find that the Eastern Lands is being used for the purpose of processing quarry products, the Company Respondents submitted that this use has been an independent use of the land from 12 October 1965 onwards. In support of this, the Company Respondents referred to the evidence of Mr Martin that the land was used for processing of quarry products (that is, crushing carried out by a primary and two secondary crushers) when he commenced working at the Quarry in November 1968. It was noted by the Company Respondents that Mr Martin said that this plant "appeared to have been used for many years" (affidavit of 18 February 2017 at Annexure C, p 9).

[129]

Extent of the continuing use

The Company Respondents contended that the relevant land upon which the use for the purpose of a quarry has occurred, from at least October 1965, is the entirety of the Eastern Lands (that is, Lot 1 DP 1006375 and Lot 1 DP 204377). On the evidence, the Company Respondents submitted that the relevant land unit which had been acquired for use for the purpose of a quarry was the whole of the Eastern Lands. In particular, the Company Respondents referred to, inter alia, the relevant Government Gazette notices of acquisition (Exhibit R-1, pp 103-114) and an aerial photograph taken in 1958 (Exhibit 5, p 4), which was said to show disturbance on approximately three quarters of the historical Lot 2 (within the Eastern Lands).
In these circumstances, the Company Respondents claimed that it is unnecessary to show that the entirety of the land unit was physically used at 12 October 1965 to establish that the continuing use applies to all of the Eastern Lands: citing Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 at 27-28. As a quarry, land not yet subject to extraction, but used for ancillary activities and as reserve for extraction, will be land used for the purpose of a quarry: citing Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 at 583-585. Hence, given that both the land unit had been acquired for the purpose of a quarry and quarrying activities were expanding across this unit over time, the Company Respondents submitted that "it may be inferred that those parts of the land unit which were not being physically used for quarrying purposes as at 12 October 1965 [such as parts of Lot 1 DP 204377] were being kept in reserve for quarrying purposes".
Relevant to this claim, according to the Company Respondents, is Mr Walker's evidence to the effect that, by 1984 (although further expansion did subsequently occur), most of the Eastern Lands were being used for the processing of quarry products, with extraction occurring on the boundaries of the Eastern Lands. The Company Respondents also said that at the operative times, there was no constraint on enlargement or intensification: citing Norman v Gosford Shire Council (1975) 132 CLR 83; [1975] HCA 15; Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21.
If the Court was to find that, contrary to the Company Respondents' submissions, processing of quarry products has been an independent use of the Eastern Lands since, at least, 12 October 1965, the Company Respondents submitted that this use of land extended to the boundaries of the single unit of land. For similar reasons to those given above, "the Court may reasonably find that the use extended over the whole of the land notwithstanding that the area of actual physical use for that purpose may have been more limited".
The Company Respondents submitted that the relevant evidence supported the inference that the whole of the Eastern Lands were used for the purpose of processing before 12 October 1965. In particular, the Company Respondents submitted that the frequent use of explosives to reduce the size of run of mine rock could have occurred anywhere on the quarry floor within the Eastern Lands (affidavit of Mr Martin dated 18 February 2017 at [3] and [8]). The Company Respondents made the same point in relation to most of the other activities on the quarry floor, such as stockpiling.
Additionally, the Company Respondents cautioned that the relevant evidence of Mr Martin - to the effect that a particular "area of lot 2 [was] used for processing" (affidavit of Mr Martin dated 18 February 2017 at Annexure C) - should not be understood to mean that processing was restricted to that area. This evidence was said to be an indication by Mr Martin of the location of the fixed processing plant and not an opinion about the total extent of the area used for processing. Similarly, the Company Respondents submitted that references to processing operations as being on Lot 2 in a RSA letter (concerning existing use rights) were shorthand references to distinguish the Eastern Lands from the Western Lands, rather than a representation of the total extent of the continuing use area.

[130]

Railways development

The Company Respondents contended that the development (for the purpose of a quarry or, alternatively, processing) on the Eastern Lands was permissible without consent under the LEP 1990 because it fell within the meaning of what the Company Respondents called railways development: citing cl 6 and Model Provisions 1980, cl 35. The development was said to be "railways development" for the purposes of LEP 1990 because it was (1) carried on by a person carrying on a railway undertaking (2) on land comprised in that undertaking and (3) was "development required in connection with the movement of traffic by rail…".
The quarry on the Eastern Lands was said to be operated by some embodiment of the Crown responsible for railways at all relevant times up to December 2012, including the SRA, RSA and RailCorp. Therefore, the Company Respondents submitted that the above two elements of railways development were satisfied.
The Company Respondents contended that the development was "required in connection with the movement of traffic by rail" because the railway ballast produced by the Quarry was necessary to construct and maintain railway lines. In interpreting the meaning of the words "in connection with", the Company Respondents submitted that the Court should not adopt a narrow construction: citing Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-80 and Elkateb v Lawindi (1997) 42 NSWLR 396 at 402. The Company Respondents also said that the context of the provision and its purpose were relevant, namely, "to prevent work on transport infrastructure being held up by planning restrictions". The following evidence was said to make good this claim.
First, the Company Respondents noted that the relevant land was acquired "for the purpose of maintaining the existing line of railway between West Maitland and Taree" and that the desired quarry was, in the opinion of the Governor in Council, "requisite and convenient for the use of the railways" (Exhibit R-4, pp 103-114). Secondly, Mr Walker's evidence was said to demonstrate that railway ballast was necessary to construct and maintain rail lines and that the Quarry was intended by the NSW Government to ensure security of supply (Exhibit R-4, p 2,311). Thirdly, the Company Respondents drew to attention the minutes of a RailCorp board meeting where it was stated that the Quarry and another quarry "provide almost all of RailCorp's requirement for new ballast" (Exhibit R-4, p 776). Finally, the Company Respondents submitted that the fact that the Quarry has produced materials other than railway ballast does not cut against the grain of its argument. The production of these other products allegedly made the Quarry more economical but did not change its overall reason for existence: to supply railway ballast and assist in the construction and maintenance of railway lines.
The Company Respondents rejected two arguments to the effect that the development was not railways development. First, the Company Respondents submitted that it would be unworkable if the railways development clause only applied to quarry development to the extent that it produced railway ballast. Secondly, the decline of railway ballast as a proportion of the Quarry's total output does not, so the Company Respondents submitted, deprive the Quarry from being required in connection with the movement of traffic by rail. In fact, the Company Respondents asserted that the Quarry still remains important in this respect, allegedly (according to Mr Walker) providing 25% of the total ballast requirements for the network (affidavit dated 18 February 2017 at [17]).
Thus, the development on the Eastern Lands, being railways development for the purposes of LEP 1990, was lawful without consent. This position was replicated under LEP 2006 when it commenced on 24 March 2006. However, the Company Respondents asserted that the development on the Eastern Lands ceased to be railways development in December 2012 because it ceased to be operated by a person carrying on a railway undertaking. This is because the Second Respondent "took over operations at the quarry". At this point, so the Company Respondents submitted, but for s 109(1) of the EPA Act, the development would have been unlawful because development for the purpose of extractive industry was permissible only with consent under LEP 2006. Yet as s 109(1) did apply, according to the Company Respondents, the development remained lawful as a continuing use under the EPA Act.
The Company Respondents submitted that s 109(1) was enlivened when control of the Quarry passed to the Second Respondent in December 2012 because LEP 2006 only became applicable when the Quarry ceased to be railways development. The Company Respondents said that it did not matter that the use was lawful prior to December 2012 by virtue of an immunity rather than being lawful per se because s 109(1) is concerned with the lawfulness of the actual use of land at the relevant date: citing Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 at 570.
The Company Respondents referred to two decisions which were said to be analogous to the present circumstances and confirm that "where a use is lawful both as an existing or continuing use and on a second legal basis, and that second legal basis ceases to apply (either because of a legislative change or a change in the nature or identity of the operator), then the use may be lawfully continued as an existing or continuing use under s 107(1) or s 109(1)". These decisions are No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136 (No Dump (No 2)) and Shoalhaven City Council v South Coast Concrete Crushing.
With respect to the former decision, the Company Respondents conceded that the decision was varied on appeal (but not on the relevant aspect) and distinguished in Greengate Consulting (NSW) Pty Ltd trading as Greengate Property Group v Ashfield Municipal Council (2008) 162 LGERA 247; [2008] NSWLEC 253 (Greengate Consulting (NSW) Pty Ltd v Ashfield Municipal Council) at [28]. However, the Company Respondents sought to distinguish that case on the basis that it concerned an instrument which only placed restrictions on who could apply for consent rather than on who could carry out the development.
On this basis, the Company Respondents next turned to the issue of enlargement, expansion or intensification. The Company Respondents contended that the relevant date under s 109(2)(c) for assessing whether there has been an enlargement, expansion or intensification is 1 December 2012, being the date on which control of the Quarry passed to the Second Respondent. This was said to be the relevant date because LEP 2006 only came into "operation" in relation to the actual use of the Eastern Lands within the meaning of s 109(2) when control of the Quarry was transferred. The Company Respondents reasoned that "[u]p until 1 December 2012, cl 35 of the Model Provisions 1980 took the Quarry outside the operation of Part 4 entirely, so that there was nothing for LEP 2006 to operate on".
In making this contention, the Company Respondents recognised that this position is contrary to the ordinary case where the relevant date is either the date of the commencement of the planning instrument or s 109(2) itself: citing, eg, Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 at [213]. Moreover, the Company Respondents conceded that Talbot J had rejected a similar argument in No Dump (No 2) at [36]. However, the Company Respondents countered by arguing that Lloyd J's finding in Shoalhaven City Council v South Coast Concrete Crushing - that s 109(2) did not apply until an applicable immunity was lifted - should be preferred.
The Company Respondents also submitted that their interpretation is supported by the fact that the relevant date for the purposes of s 109(2)(b) is the date "immediately before the coming into operation of the instrument…" (citing Shoalhaven City Council v South Coast Concrete Crushing at [196]) rather than "immediately before the coming into force of the instrument…" (s 109(1)). Accordingly, it was submitted that the legislature intended the relevant date for s 109(2)(b) to be "the date on which that planning instrument had the effect of requiring consent for an actual prior use". This was said to be corroborated by the underlying rationale of continuing use provisions; to prevent unfairness caused by the instantaneous conversion of a lawful use of land into an unlawful use of land: citing Grace v Thomas Street Café Pty Ltd at [56]-[69].
The Company Respondents rejected that the relevant date was the date on which s 109(2) was inserted: namely, 3 February 1986. The Company Respondents submitted that s 109(2) expressly refers to the coming into force of "the instrument", which is the instrument that would impose the prohibition under s 109(1). That instrument was said to be LEP 2014, which came into force on 1 June 2014.

[132]

Alternative argument - if the use was not railways development

If the Court was to find that the use of the Eastern Lands was not railways development, the Company Respondents argued that the development was permissible without consent under the first planning instrument to regulate the Eastern Lands (made under the Local Government Act 1919): namely, Ordinance No 105 - Town and Country Planning (General Interim Development) (Ordinance 105), which came into force on 12 October 1965. This was said to be because development carried on by a person carrying on a public utility undertaking "expressly authorised under any…State Act" before the interim development provisions of Pt XIIA became applicable to the land (which was on 12 October 1965) was permissible without consent (Class 2 development): citing cl 4(1) of Ordinance 105. The development of the quarry on the Eastern Lands was said to be expressly authorised by the acquisition proclamations between 1914 and 1963 "'under' the Public Works Act 1912".
In the event that the Court was to find that the use of the land was not Class 2 development, the Company Respondents contended that the use of the Eastern Lands was protected by s 342U(4) of the former Local Government Act 1919. This section provided that nothing in an interim development order "shall prevent the continuance of the use of any land … for the purpose for which such land or building was lawfully used immediately before the coming into operation of the interim development order". Prior to the coming into force of Interim Development Order No 1 - Shire of Dungog (IDO No 1) on 12 May 1967 (made under the Local Government Act 1919), the lawful use of the Eastern Lands was said by the Company Respondents to have been that of a quarry or extractive industry.
Under IDO No 1, extractive industries were permissible with consent in all areas zoned as "Non-urban" whereas quarries were prohibited in areas zoned "Non-urban B" or were permissible with consent in areas zoned "Non-urban A". The Company Respondents submitted that the preferable characterisation of the purpose of use of the Eastern Lands, as at the commencement of IDO No 1, was "quarry" rather than "extractive industries". The Company Respondents submitted that as the Company Respondents said that they were unclear whether the Eastern Lands were zoned Non-urban A or Non-urban B, it was submitted that IDO No 1, from 12 May 1967, either prohibited the use of the Eastern Lands as a quarry or required that development consent was obtained for this use.
On this basis, the Company Respondents contended that the use of the Eastern Lands as a quarry was shielded from either needing development consent or being prohibited by s 342U(4) of the Local Government Act 1919 because it was a lawful use, under Ordinance 105, prior to the commencement of IDO No 1. Even if the processing use of the Eastern Lands was a prohibited use of industry under IDO No 1 - which the Company Respondents denied - the Company Respondents said that the use would still be protected under s 342U(4).
Relying on this foundation, the Company Respondents set out what they said was the following relevant history of planning controls applying to the Eastern Lands.
On 1 September 1980, with the commencement of the EPA Act, the Company Respondents claimed that the relevant use continued to be protected either as an existing use under s 107(1) (if prohibited under IDO No 1) or as a continuing use (if permissible with consent under IDO No 1): noting that IDO No 1 became a deemed environmental planning instrument under Schs 1 and 3, and cl 2 of the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979.
On 23 May 1981, IDO No 1 was replaced by Dungog Local Environmental Plan No 1 (LEP No 1) which made extractive industries (said to be the relevant characterisation) permissible with consent in the relevant zone. However, the Company Respondents submitted that as the use was lawful prior to the commencement of LEP No 1, it did not need consent to be lawful by dint of s 109(1) of the EPA Act.
On 6 April 1990, LEP No 1 was replaced by LEP 1990 which replicated the position that extractive industries were permissible only with consent. Again, the Company Respondents submitted that as the use was lawful prior to the commencement of LEP 1990, it did not need consent to be lawful by dint of s 109(1) of the EPA Act.
On 24 March 2006, LEP 2006 came into force under which a mine was defined to include a quarry. Again, the Company Respondents submitted that as the use was lawful prior to the commencement of LEP 2006, it did not need consent to be lawful by dint of s 109(1) of the EPA Act.
On 1 June 2014, LEP 2014 came into force which replicated the position that extractive industries were permissible only with consent. Again, the Company Respondents submitted that as the use was lawful prior to the commencement of LEP 2014, it did not need consent to be lawful by dint of s 109(1) of the EPA Act. Thus, the Company Respondents submitted that the use of the Eastern Lands continues to be lawful by dint of s 109(1).
In the alternative, if the Court were to find that the Eastern Lands were used for the two independent purposes of a quarry and the processing of quarry products (and the quarrying use was abandoned in 1993), the Company Respondents contended that the processing use has continued and would remain lawful if protected as an existing or continuing use. Prior to setting out the relevant history of the applicable environmental planning instruments, the Company Respondents first sought to establish that the processing use had a lawful origin. To this end, the Company Respondents asserted that, prior to the commencement of the EPA Act, the use was lawful by dint of s 342U(4) of the Local Government Act 1919.
The Company Respondents argued that the use of the Eastern Lands for the purpose of processing quarry products has been permissible with consent at all times since 23 May 1981.
Under LEP No 1, extractive industries were permissible with consent. The Company Respondents argued that the operative definition of "extractive industry" applied to the processing use because the definition included an industry which depended for its operations on the winning of extractive materials from the land on which it is carried on. The Company Respondents claimed that "[t]here can be no doubt that as at 23 May 1981, such processing as was occurring at the Quarry was processing of materials won on the same site". The position under LEP No 1 was replicated under LEP 1990 (from 6 April 1990).
On 13 August 1993, the operative definition of "extractive industry" was amended to be, according to the Company Respondents, more prescriptive and referred specifically to "crushing, grinding, milling or separating" works but retained the requirement that the materials must be won on the land on which the extractive industry was carried on. For reasons already articulated above, the Company Respondents claimed that, because the Quarry "operated as a single enterprise spanning both" the Eastern and Western Lands, the use continued to be an extractive industry that was permissible with consent and, therefore, lawful.
On 24 March 2006, when LEP 2006 came into force, the Company Respondents suggested that the applicable definition was that of a mine, which was said not to require the processing and quarrying to occur on the same land. Development for the purpose of a mine was said to be permissible with consent and, therefore, lawful.
On 1 June 2014, when LEP 2014 came into force, the Company Respondents said that the use fell within the meaning of "extractive industry", which was defined to include the "storing stockpiling or processing of extractive materials" but did not require these materials to be won on the same land. The Company Respondents submitted that "[t]he processing use clearly involves all of these activities, therefore it is an extractive industry and permissible with consent". The Company Respondents rejected the argument that the importation of thousands of tonnes of other materials onto the Eastern Lands to blend with extractive materials "produced by the Quarry each year" means that the proper characterisation of the use was that of "general industry". Nevertheless, either way, the use of the Eastern Lands for processing was said to remain lawful under either s 107 or s 109 of the EPA Act: "[b]oth are equally effective to preserve the lawfulness of the use, and both have the same restrictions on enlargement, expansion or intensification".

[133]

No intensification since 3 February 1986

If the Applicant Council were to be correct in identifying the relevant date from which to assess whether there has been an intensification of the use of the Eastern Lands as being 3 February 1986 - because s 109(2) of the EPA Act commenced on that date - the Company Respondents rejected that the Applicant Council has discharged its onus to establish that there has been an intensification. To this end, the Company Respondents denied that evidence as to quarry output over time was appropriate (albeit conceding that the production data is not in issue - T1.097) for the following reasons.
First, the Company Respondents contended that, between 1986 and the present, the overall intensity of the use of the Eastern Lands has decreased due to the cessation of extractive activities in 1993. The Company Respondents said that the evidence as to the nature of the extraction activities, such as primary and secondary blasting, prior to their cessation demonstrated that these activities were "much more intensive and high-impact … than processing alone". Thus, it would not be legitimate to focus on the evidence of output alone or even principally. In this respect, the Company Respondents distinguished the cases of King v Lewis (1991) 74 LGRA 362 and Vaughan-Taylor v David Mitchell-Melcann "because they concerned sites where all aspects of quarrying were occurring in the area in which continuing use rights were claimed".
Secondly, the Company Respondents argued that the post 1999 output attributable to the fixed tertiary crusher should be disregarded because the plant operates under its own consent, which was said to be the source of authority for its production. The Company Respondents submitted that this other development consent did not contain any conditions which restricted production levels to a particular rate of production or any commitment relating to the number of permissible truck movements.
The Company Respondents also submitted that to the extent that the development consent was inconsistent with any limitation on the continuing use as to production (because the consent was said not to impose any such limitation), the former should prevail over the latter: citing, by analogy and inter alia, John Bruce & Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67 at 68-69 and Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; [1988] NSWLEC 55 at 242. The Company Respondents argued that, if the output of the tertiary crusher is excluded, it could not be shown that total production has increased since 3 February 1986.
Thirdly, the Company Respondents contended that the intensity of use should be measured by reference to the productive capacity of the relevant equipment rather than the actual (fluctuating) production. On this basis, the Company Respondents submitted that as the capacity in tonnes per hour of the primary crusher has not changed (citing Mr Walker's evidence at Exhibit R-4, pp 2,301 and 2,315 and T750-751), the productive capacity of the quarry has not intensified.
In the event that the Court was to rely on the annual production rate "as the sole barometer of intensification", the Company Respondents said that the Court should take into account the evidence regarding the interpretation of the SRA production summaries from the 1980s. The Company Respondents said that, according to Mr Walker, this evidence under-represented total production because of incomplete counting of products other than railway ballast.
Instead, the Company Respondents said that the figures provided in Mr Walker's (first-hand) evidence (Exhibit R-4, pp 2,313-2,315 and 2,354) were likely to be the true figures. Even if these figures were not accepted, Mr Walker's evidence was said to mean that the records should not be accepted verbatim. The Company Respondents submitted that the Applicant Council had accepted that this evidence under-represented total production when it agreed to accept existing use rights in 1999 (Exhibit R-4, p 657). For these reasons, the Company Respondents submitted that the Applicant Council's alleged reliance on production output summaries between the 1960s and the 1980s as "equivalent to more systematic modern-day records" was misplaced.
Moreover, the Company Respondents submitted that the production figures should be understood in the context that the Court should take a liberal approach in deciding the time period over which to measure intensification. In the present circumstances, the Company Respondents suggested that the Court should take the accounting period which most closely corresponded to the record of output for February 1986, said to be period 8 of the output summary for the year ending 1986 (Exhibit R-1, p 585). If the figure for track ballast production of 20,271 is doubled to account for a rate of recovery of 50% (derived from Mr Walker's evidence - T577, T579-580, T585-586 and T772-773) and then annualised, the Company Respondents said that total production was 538,746 tonnes per annum.
Finally, the Company Respondents criticised the proposed order sought by the Applicant Council to restrain the allegedly unlawful development on the Eastern Lands. The Company Respondents drew attention to the fact that the Applicant Council did not seek an order requiring the cessation of the use but sought to restrain the extent and intensity of the use and certain specified activities. The Company Respondents alleged that the desired limit of only crushing or stockpiling 449,000 tonnes of bulk quarried material (310,000 tonnes of saleable product) per annum was derived from representations in the RSA existing use rights letter dated 21 September 1998 (Exhibit R-1, p 567). The Company Respondents submitted that it is a historical fact of 1986 that the Quarry could only produce 310,000 tonnes of saleable product from 449,000 tonnes of bulk quarried material. In the present day, so the Company Respondents asserted, "practically all of the rock processed by the Quarry ends up as saleable product, because of the greater variety of products not produced by the Quarry".

[136]

Characterisation

The Applicant Council initially contended that the proper characterisation of the purpose of use of the Eastern Lands immediately prior to the coming into force of Ordinance 105 is that of public utility undertaking. However, the Applicant Council revised its position to assert that the proper characterisation is that of "quarry for railway purposes". In support of this characterisation the Applicant Council said the following.
First, the Applicant Council submitted that this characterisation is consistent with the purpose for which the lands were resumed: citing the first notice of resumption (Exhibit R-1, p 103). Namely, the lands were said to be resumed "for the purpose of supplying ballast to the northern rail line".
Secondly, it was said that this characterisation, of a quarry at a level of particularity, is consistent with the characterisation of the purpose of use by Sheller JA in Archibald at [70] as "…a quarry for the extraction, production and sale of road base".
Thirdly, the Applicant Council submitted that this characterisation is analogous to the examples of the appropriate level of particularity provided by Kitto J in Shire of Perth v O'Keefe at 535. In particular, the Applicant Council drew attention to how a retail use for the purpose of a butcher's shop is distinct from a use for the purpose of a general store (although noting that this was not embraced by Menzies J). So too, the Applicant Council said, a quarry for railway purposes is distinct from an unconstrained quarry. The Applicant Council reasoned that it is appropriate to characterise the purpose of use at the level of particularity of "quarry for railway purposes" because this necessarily constrains the associated impacts of the development in comparison to that of "quarry": citing, by analogy, Archibald.
In response to the Company Respondents' suggestion, derived from Shoalhaven City Council v South Coast Concrete Crushing at [94], that a useful means of characterising a continuing use is to stand on the side of the site and compare the former and current use, the Applicant Council submitted that this does not mean that the proper characterisation is that which a layperson would attribute to the use from this position.
The purpose of use may be properly characterised at a higher level of particularity than that which the layperson would give after observing the use from the side of the site. The proper inquiry to determine the level of particularity is, so the Applicant Council submitted, what is appropriate for town planning purposes. That is to say, "the question will be determined upon the relevance for town planning purposes of the need for finer detail": quoting Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd [1990] NSWCA 25.
More broadly, the Applicant Council submitted that its characterisation is consistent with a proper application of the relevant legal principles: citing, inter alia, Boyts Radio and Royal Agricultural Society.
It follows that the Applicant Council did not accept the Company Respondents' characterisation of the purpose of use as that of quarry. However, in the event that the Court was to accept the Company Respondents' characterisation, the Applicant Council challenged the Company Respondents' claims as to what the use of land for this purpose encompasses. The Applicant Council submitted that the essence of the use of land for the purpose of a quarry, according to ordinary terminology (citing Shire of Perth v O'Keefe at 535) "is the winning of material by extracting it from a pit dug into the ground". Therefore, the Applicant Council said that it is significant that the Company Respondents claim a continuing use of quarry when extraction of material on the Eastern Lands ceased 24 years ago.
In response to the Company Respondents' argument that quarrying involves some level of crushing and screening, the Applicant Council suggested that only very basic processing necessary to win the material (excluding secondary crushing and screening) can be said to be ancillary to quarrying: citing Egan v Hawkesbury City Council at 324, 326, and 332. Certainly, the Applicant Council argued that the current processing - to manufacture aggregates and products other than railway ballast - is not ancillary to quarrying. Even if the processing use could be said to be ancillary, the Applicant Council submitted that it may still be an independent use of land: Baulkham Hills Shire Council v O'Donnell at 409.

[138]

Railways development

The Applicant Council asserted that the Company Respondents' primary railways development continuing use argument "is a confused argument, unsound from the perspective of planning law and notable for the questions and anomalies it raises".
First, the Applicant Council criticised the Company Respondents' assertion that the use of the Eastern Lands by the SRA was permissible without consent from 6 April 1990 because the use of land was "railways development" for the purpose of LEP 1990 in addition to being a quarry. The Applicant Council argued that there is an internal inconsistency to the argument that the land was simultaneously subject to the independent uses of quarry and railway undertaking. The Applicant Council asked rhetorically which of the operations on the Eastern Lands fell within each use.
Secondly, the Applicant Council challenged the Company Respondents' assertion that the use of the Eastern Lands was lawful under LEP 2006 both as a railways development and by virtue of s 109(1). This was said to be a contradiction in terms; if the SRA was permitted to carry out the development without consent because it comprised railways development, then the development could not benefit from continuing use rights pursuant to s 109(1).
Thirdly, the Applicant Council rejected the Company Respondents' proposition that the relevant use of the Eastern Lands, upon allegedly ceasing to be railways development on 1 December 2012 (when control of the Quarry passed from the SRA to the Second Respondent), remained lawful as a continuing use by dint of s 109(1) of the EPA Act. Rather, the continuing use (if any) ceased. The Applicant Council said that the terms of s 109(1) do not permit a transaction between two parties to create a continuing use right if the transferor enjoyed a special concession under the relevant planning instrument.
Furthermore, it was argued that the Company Respondents' proposition is inconsistent with the fundamental policy underlying existing and continuing use rights, which was claimed to be the prevention of unfairness to those holding interests in land occasioned by the imposition of a new prohibition or restriction on a formerly permissible or unrestricted use of land: citing, inter alia, Royal Agricultural Society at 309-310. The Applicant Council argued that it is of no assistance to the Company Respondents' proposition that it is possible for rights to carry out development to attach to land on two independent bases.
In this respect, the Applicant Council challenged the Company Respondents' reliance on No Dump (No 2). The Applicant Council asserted that the present circumstances are distinguished from that decision because it concerned a prohibited use: citing Greengate Consulting (NSW) Pty Ltd v Ashfield Municipal Council at [28].
In any event, the Applicant Council submitted that the decision should be approached with caution because: it was reversed on appeal, albeit on a different point (leaving the relevant point undisturbed); has not since been followed; the relevant reasoning is, with respect, not clear; and is inconsistent with the opinion expressed in Greengate Consulting (NSW) Pty Ltd v Ashfield Municipal Council that "[Section] 106 is not concerned with the identity of the user. Planning law 'is concerned with the use of land - not with the identity of the user'". Additionally, the Applicant Council contended that the decision of Shoalhaven City Council v South Coast Concrete Crushing "is not relevantly analogous". In particular, it was submitted that it "involved entirely orthodox reasoning which in no way turned on any change in the identity of the user and which in no way assists the [Company Respondents'] argument".
Fourthly, the Applicant Council rejected that the relevant date for the purpose of the commencement of s 109 continuing use rights is 1 December 2012. The Applicant Council submitted that the relevant date on which s 109 continuing use rights may be established is the point in time immediately before the coming into force of an environmental planning instrument that would require consent to be obtained for a lawful use to continue.
The applicable environmental planning instrument, LEP 2006, did not, so the Applicant Council submitted, change in any way on 1 December 2012. Therefore, the relevant date, for the purpose of s 109, could not be 1 December 2012. The Applicant Council submitted that the Company Respondents' claim to this effect is inconsistent with the well-accepted principle that s 109 (and planning law more broadly) is about use and not about the identity of the user: citing Greengate Consulting (NSW) Pty Ltd v Ashfield Municipal Council at 257. The Applicant Council also rejected the Company Respondents' construction of s 109(2) to the effect that LEP 2006 only "came into operation" (juxtaposing this with the language in s 109(1)) on 1 December 2012 because this was the date that the cl 35 immunity ceased.
Fifthly, the Applicant Council argued that, in any event, the use of the Eastern Lands for the purpose of extracting materials other than railway ballast and processing such materials was not railways development as defined by cl 35 of the Model Provisions 1980 for the following reasons.
The processing and manufacturing activities were said by the Applicant Council not to be carried out "on land comprised in their railway undertaking" except for the rail siding and ballast loading facility. This is because the Eastern Lands were not in the northern railways corridor, which was suggested to be the land comprised in the railway undertaking. Hence, in this respect, the Eastern Lands were said to be no different to a factory manufacturing steel sleepers located outside the land comprised in the railway undertaking.
The Applicant Council claimed that, properly construed, cl 35 only prevented environmental planning instruments from constraining the carrying out of development such as the maintenance and repair of "ways, works and plant". Taking into account the inclusive words and their indication as to the types of development to which cl 35 is directed, the Applicant Council submitted that the proper construction of cl 35 is that it applied to "run-of-the-mill" developments in the railway corridor but not substantial developments associated with the railways. It was suggested that this is why, allegedly, the rail authorities recognised that cl 35 did not apply to the operations on the Eastern Lands, even in advancing its existing use rights case to the Applicant Council in 1998. Moreover, the Applicant Council submitted that its interpretation of cl 35 is consistent with the fact that the railway undertaking exemption was, from 29 May 1981, not restricted to government owned undertakings.
Additionally, the Applicant Council submitted that both the extraction of material other than railway ballast and the processing and manufacturing of such material on the Eastern Lands were not "required in connection with" the railways undertaking or carried out for that purpose.

[142]

Alternative argument - if the use was not railways development

The Applicant Council challenged the Company Respondents' alternative argument that the use of the Eastern Lands as a quarry (or extractive industry) became a continuing use (or existing use) from 12 May 1967 (the date of commencement of IDO No 1) by dint of s 342U(4) of the Local Government Act 1919 and has remained a continuing use under s 109 (or an existing use under s 107).
First, the Applicant Council contended that any right to process and stockpile extractive materials on the Eastern Lands - as permissible ancillary processing preserved by s 342U(4) of the Local Government Act 1919 and, thereafter, by s 109 of the EPA Act - was constrained by the right to extract materials. Thus, the Applicant Council submitted that such a right was limited to the land actually (albeit not physically) used for the purpose of extracting materials immediately before Ordinance 105 applied.
The Applicant Council submitted that this right was limited to that part of the Eastern Lands actually used (albeit not physically) "for the purpose of extraction of extractive materials, immediately before Ordinance 105 applied". According to the Applicant Council, this land only comprised those lands formally resumed by the Commissioner of Railways to establish the Martins Creek Quarry. The Applicant Council stated that "on the face of the 7 January 1967 photographs the area of disturbance neither extends over the entirety of the lands that now comprise consolidated Lot 1 DP 1006375 nor Lot 1 DP 204377 … not all of the lands which now comprise those lots were owned by the Railways".
Secondly, the Applicant Council challenged the evidence relied upon by the Company Respondents to support its claim that there was a tertiary crushing plant, even if on a campaign basis, in use on the Eastern Lands between 1984 and February 1986. In particular, the Applicant Council said that Mr Walker's evidence to this effect was contrary to the more credible evidence of Mr Martin that no tertiary crushing plant was on the Eastern Lands until at least 1998.
Thirdly, the Applicant Council argued that the Company Respondents' claim must be considered in light of the fact that, aside from rehabilitation, extraction ceased on the Eastern Lands in early 1993. From this point on, the Applicant Council submitted that, aside from rehabilitation, the Eastern Lands "have been exclusively used for the purposes of processing and manufacturing a suite of aggregate and sealant products for sale …". The Applicant Council emphasised that since this point, the material processed on the Eastern Lands has not been extracted on the Eastern Lands and has not been used to produce railway ballast.
In contrast, the Applicant Council said that Mr Martin's evidence confirms that the only material processed on the Eastern Lands prior to 1991 was material won from the Eastern Lands. Hence, the Applicant Council argued that once material began to be imported onto the Eastern Lands, there was an increase in the area of the Eastern Lands actually used, or an enlargement or expansion of the use from that which existed immediately before 3 February 1986.
Moreover, the Applicant Council asserted that this "renders illusory the Company Respondents' alternative agreement that there was an independent use of land for the purpose of processing from 1965. Regardless, the Applicant Council said that s 109(2) does not now permit the transportation of material onto the Eastern Lands for independent processing.
Fourthly, the Applicant Council challenged the Company Respondents' position that, if the Court were to find that there was an independent use of the Eastern Lands for the purpose of processing, the continuing use would extend to all of the relevant lands acquired by Railways prior to 12 October 1965.
Specifically, it was argued that s 109(2) of the EPA Act restricted (with effect from 3 February 1986) the land to which such a continuing use affixed to that actually physically used for that purpose. The Applicant Council submitted that the relevant evidence demonstrates that the relevant part of the Eastern Lands was Lot 2 DP 5245111: referring to Mr Martin's evidence (T465-466 and Exhibit B) and the existing use letter of RSA to the Applicant Council (Exhibit R-1, pp 566-568).
The Applicant Council suggested that any challenge to the meaning of the relevant evidence of Mr Martin should be given little weight because of the Company Respondents' alleged failure to seek clarification from Mr Martin. In any event, the Applicant Council said that Mr Martin's evidence is highly probative. Thus, the Applicant Council maintained that any processing on the Eastern Lands being carried out beyond Lot 2 DP 5245111 after 3 February 1986 was (and is) unlawful.

[143]

Intensification

Regardless of whether the relevant date for determining whether there has been a significant intensification in the use(s) of the Eastern Lands is 3 February 1986 or December 2012, the Applicant Council claimed that a significant body of evidence plainly shows that there has been a significant intensification in output from the Eastern Lands.
Perhaps most importantly, the Applicant Council said that the Court should rely on what it said is the body of contemporaneous official records of the annual quarry output for over 40 years to determine whether there has been an intensification of the relevant use (rather than the evidence of Mr Walker, which was criticised as "self-serving speculation and surmise). The Applicant Council submitted that the following decisions support the proposition that the output of a quarry is the proxy which should be relied on to determine the intensity of that use: King v Lewis at 369-370 (said not to be disturbed on appeal); Nymboida Shire Council v Skar Industries Pty Ltd (1998) 99 LGERA 178; [1998] NSWLEC 166 at 190-191; and Archibald at 314 and 324.
To this end, the Applicant Council criticised the evidence of Mr Walker insofar as it suggested that the level of output as at February 1986 was 310,000 tonnes of saleable products because that was the figure produced by annualising the monthly statistic for February 1986. Instead, the Applicant Council said that the Court should, consistently with the approach in Nymboida Shire Council v Skar Industries Pty Ltd, assess the intensity of the quarry on the Eastern Lands as at February 1986 by having regard to the historical output for the preceding 17 years or, alternatively, the most recent preceding three years (namely, 162,113 tonnes for 1982/1983; 222,750 tonnes for 1983/1984; and 192,349 tonnes for 1984/1985).
In response to the Company Respondents' argument that the intensity of the development on the Eastern Lands has decreased due to the absence of extractive activities, the Applicant Council said that this argument ignores the proposition that there was no entitlement to use the land for processing upon the cessation of extraction and ignores "the very significant intensification in terms of traffic generation" that outweighs any purported diminishment. Regardless, the Applicant Council said that the evidence as to output was the appropriate measure of intensification.

[144]

Characterisation of the use

The Company Respondents challenged the Applicant Council's characterisation of the purpose of use of the Eastern Lands (whilst it was owned by railway entities) as a quarry for railway purposes, by which the Company Respondents said that the Applicant Council abandoned its earlier contention that the land was used for the purpose of a railway undertaking. In particular, the Company Respondents suggested that the decision relied upon by the Applicant Council to support its position, Archibald, "is not particularly useful" in the present case because, primarily, the characterisation of the use as a particular type of quarry was not in issue: citing at [70]. Moreover, the Company Respondents sought to distinguish that decision on the basis that the relevant quarry had at all relevant times been used, apparently exclusively, for the production of road base.
The Company Respondents maintained that the proper characterisation of the use of the Eastern Lands is that of quarry, without reference to the kinds of products produced or the ultimate use of the product: citing, by analogy, CB Investments v Colo Shire Council (1980) 41 LGRA 270; Shoalhaven City Council v South Coast Concrete Crushing and Parramatta City Council v Brickworks Ltd. The Company Respondents asserted that anyone looking at the relevant lands would know that the lands were, at all relevant times, being used as a quarry. Hence, the Company Respondents submitted that town planning considerations do not indicate that the purpose of use should be characterised as a railway ballast quarry because, inter alia, the quarry on the Eastern Lands uses the same processes and machinery and generates the same impacts regardless of whether it is producing railway ballast or other products.
Moreover, the Company Respondents submitted that fluctuations in the rate of production of particular quarry products over time do not make a use change to become a different genus of use. The Company Respondents said that the issue of intensification is controlled by ss 107(2) or 109(2).

[145]

Railways development

The Company Respondents rejected the Applicant Council's argument that the development on the Eastern Lands was not railways development because it was not carried out on "land comprised in their undertakings". The Company Respondents said that the Applicant Council's interpretation of this phrase - said to rely on reading down the phrase to mean land comprising "the railway line and its corridor" - is contrary to its literal and contextual meaning: citing, by analogy, No Dump (No 2).
The Company Respondents emphasised what they said were two important aspects of that decision: first, that the Court found that the use of land remained a railways undertaking despite a large part of the land being used for storage purposes and the use of the land transforming from general freight to waste; and, second, that "the existing use sprung up, or rather … was always there but it was the sole source of authority to authorise the continuation of the activity" once the land ceased to be a railways undertaking (T1,261).
Furthermore, the Company Respondents alleged that the Applicant Council's interpretation ignored the history of the railways in this State. In essence, the Company Respondents said that the "undertakings" of "persons carrying on railway undertakings" involved more than simply the movement of rail on railway lines and included development related to the movement of rail such as rail depots, shunting yards and railway workshops. In the words of the Company Respondents "[t]he NSW Railways was, as a matter of economic and political history, a great State enterprise, employing many thousands in disparate occupations, all related in one way or another to the railway undertaking".
In support of their interpretation, the Company Respondents submitted that it is significant that the relevant land was acquired for railway purposes and was, therefore, part of a "railway undertaking". Similarly, the Company Respondents drew attention to the fact that the Eastern Lands are adjacent to a railway line.
Conversely, the Company Respondents argued that the Applicant Council's interpretation would lead to anomalous results. Why, the Company Respondents asked rhetorically, should the construction, maintenance or repair of rail only be exempt from planning controls if carried out on the railway line itself?
The Company Respondents also denied what they said was the Applicant Council's claim that the express inclusions and exclusions of the clause are limited to land within the railway corridor, citing sub-cll (d) and (f). The Company Respondents challenged the Applicant Council's submission that the railways development exception did not apply to the commercial sale of product won from the quarry: they said that the commercial sales activity was ancillary to the use for railways purposes. The Company Respondents also denied that the expression "required in connection with" connotes necessity or essentiality: citing Bentley v Benbow (1957) 97 CLR 444; [1957] HCA 70 at 453. In any event, the Company Respondents submitted that the Quarry was essential, citing Mr Walker's evidence (Exhibit R-4, p 2,311 and affidavit dated 13 February 2017 at pars 17-20).

[147]

Output of the tertiary plant

The Company Respondents reiterated their position that the output of the tertiary crusher was not limited by the conditions of the 1999 development consent. In relation to statements made in the SEE accompanying the DA, the Company Respondents submitted that the Court would not find that these statements limited the effect of the 1999 development consent. Similarly, to an EIS (although of less significance in the scheme of the EPA Act) the Company Respondents said that the SEE was intended to enhance the quality of environmental decision-making: citing Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; [2006] NSWCA 339 at [79] and [83]-[88]. The Company Respondents submitted that it was not incorporated, either expressly or implicitly, into the development consent.
The Company Respondents submitted that the Applicant Council erroneously assumed that no tertiary crushing occurred on the Eastern Lands prior to the installation of the fixed tertiary crushing plant when, in fact, a significant amount of such crushing (using mobile plant) did occur from before 1986 (Exhibit R-4, p 2,310): citing a 1998 aerial photograph and the evidence of Mr Walker (T798). Consequently, the Company Respondents denied that there was any clear demarcation between primary and secondary crushing on the one hand and tertiary crushing on the other for the purposes of assessing the scale of the continuing use.
When the continuing use rights "kicked in" in 2012, on the Company Respondents' case, the continuing use encompassed the pugmill "because previously that could be an operation carried out on the railway land by Railways and they did - for which they did not require consent" (T1,265). On the Company Respondents' alternative continuing use argument, the Company Respondents reiterated that the output of the tertiary crusher should not be taken into account to determine whether the use of the Eastern Lands has intensified in the period after 1999.
Additionally, the Company Respondents rejected any submission that an increase in the continuing use must have occurred to provide, via primary and secondary crushing, "feedstock to the tertiary crusher". It was argued that, in this respect, primary and secondary crushing "was ancillary to and subservient to the dominant authorised use and that production took its character from the dominant use": citing Foodbarn Pty Ltd v Solicitor-General (NSW) at 161. Hence, the Company Respondents said that "[t]he increase in any production on the primary and secondary crusher solely for the purpose of tertiary crushing must take its character from the production … of the tertiary product" (T1,263).

[151]

The relief sought

In relation to Issue 8, focussed on the alleged unlawful use of the Eastern Lands, pursuant to the Amended Summons filed 3 July 2015 the relief sought by the Applicant Council, in eight prayers for relief, namely 17-24, is as follows: "17. A declaration that the development being carried out by the first and second respondents, by themselves, their servants, agents or assigns, on that part of Lot 1 DP 1006375 that formerly comprised lot 2 DP DP524511, being the crushing and stockpiling of quarried material, constitutes an enlargement, expansion or intensification of the use of the said land for the purpose of a crushing plant as at 5 February 1986, contrary to section 109(2) of the Environment Planning and Assessment Act 1979. 18. An order restraining the first and second respondents by themselves, their servants, agents and assigns, from carrying out on that part of Lot 1 DP 1006375 that formerly comprised lot 2 DP 524511 the crushing or stockpiling of more than 449,000 tonnes of bulk quarried material (310,000 tonnes of saleable product) per annum unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act. 19. A declaration that the first and second respondents, by themselves, their servants, agents and assigns, are using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing stockpiling and transportation of extracted material without development consent in contravention of section 76A(1 )(a) of the Environmental Planning and Assessment Act 1979 20. An order restraining the first and second respondents by themselves, their servants, agents and assigns, using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing, stockpiling or transportation of extracted material on the said land unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979. 21. A declaration that the development being the installation and use of a Pug Mill and associated silos and tanks and associate infrastructure and the stockpiling of extracted material and fly ash by the first and second respondents on Lot 1 DP204377 is being carried out without development consent in contravention of section 76A(1 )(a) of the Environmental Planning and Assessment Act 1979 22. An order that the first and second respondents remove the Pug Mill and associated silos and tanks and associate infrastructure and the stockpiled extracted material and fly ash from Lot 1 DP204377 and cease using the said land for the purpose of stockpiling or processing extracted material and fly ash. 23. A declaration that the development being the installation and use of a Pre Coat Plant by the first and second respondents on Lot 1 DP1006375 is being carried out without development consent in contravention of section 76A(1)(a) of the Environmental Planning and Assessment Act 1979. 24. An order that the first and second respondents remove the Pre Coat plant from Lot 1 DP1006375 and cease using the said land for the purpose of operating a Pre Coat plant unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979."

[152]

The outcome

In reaching its conclusions on the issues raised with respect to the alleged unlawful use of the Eastern Lands, the Court has carefully analysed all the submissions from the parties together with the evidence upon which they respectively relied. For the reasons set out below, the Court has found the contentions pressed by the Applicant Council to be largely persuasive and so are to be preferred to those submitted on behalf of the Company Respondents. Accordingly, the Court has decided to grant the relief sought by the Applicant Council in prayers for relief 17 and 24 of the Amended Summons. However, as will be explained in the section of the judgment, commencing at [851], addressing Issue 11, being the consideration of discretionary factors, the Court has determined that it is appropriate to stay all the orders for a period of three months.
Throughout their case with respect to the Eastern Lands the Company Respondents maintained the proposition that it is the land use and development of "quarry" at the genus level, rather than the species level of "railway ballast quarry", in relation to which they have continuing use rights. As seen earlier in this judgment, that same position was maintained by the Company Respondents with respect to characterisation of the Quarry on the Western Lands. The determination as to the distinction between a more generic quarry and the more specific railway ballast quarry was a fundamental issue with respect to the Western Lands. With respect to the Eastern Lands, the Court considers that the distinction is also important in order to clarify the planning rights established over time that apply to the Eastern Lands.
The Court acknowledges that an alternative case was put by the Company Respondents that the Quarry on the Western Lands was and remains a railway ballast quarry however, the critical distinction to be made is that the "railway ballast quarry" as characterised for the purposes of the Company Respondents' alternative argument was not in accord with the Court's characterisation for such a quarry. This judgment, of necessity, has examined that distinction.

[155]

At what level ought the use be characterised?

Conflicting contentions in this case have arisen over the distinction between quarry at the genus level and railway ballast quarry at the species level. The Company Respondents have placed great reliance upon those authorities that have stressed that it is necessary to construe the land use in question broadly and to determine the appropriate genus (not species) which is the purpose of the use. Amongst others, reliance was placed on the Court of Appeal decision in Boyts Radio, which in turn followed the earlier Court of Appeal decision in Royal Agricultural Society. This Court is, of course, bound to follow those decisions. However, how the principles enunciated ought to be applied to the facts of this case is the critical issue.
It is necessary for me to dissect the paragraphs, set out below, that appear in Boyts Radio at 59 to explain how it is that my finding that at Martins Creek there has only ever been a railway ballast quarry is correct, and materially relevant, and that, despite the warnings in the authorities to steer clear of identifying a use at the species level, to do so in this case does not run counter to the persuasive and binding interpretation of the law in these cases.
Usefully, for the purposes of examining both decisions concurrently, in Boyts Radio at 58-59, Kirby P (as he then was) quoted from Royal Agricultural Society: "In this Court, in a still more recent review of the authorities, a similar approach was taken. In Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 at 311 McHugh JA (with whom Hope and Samuels JJA agreed) after examining the cases just mentioned concluded by posing a test as follows: 'The foregoing cases were concerned with the activities of a particular business or industry or with activities of a common kind. But I see no reason why the principle upon which those decisions were based is not also applicable to a case where land is used for activities, processes or transactions of widely differing kinds. If the activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then that genus may properly be regarded as describing the purpose of the use of the land. If they are not, then it may be that the only conclusion is that the land has been used for more than one purpose. If that conclusion is drawn then each purpose is to be characterised in accordance with the principles set out earlier in this judgment.' Earlier in his judgment, McHugh JA recorded the dilemma which courts face in giving effect to provisions such as s 106 and s 107 of the Act (at 309- 310): '… Because 'existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an 'existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.' From these authorities the following matters of approach emerge: 1. Defining the existing use depends upon a detailed examination of the facts of each case. Inevitably there will be borderline cases where the characterisation of the use which is protected will be controversial and upon which minds may differ. 2. Nevertheless, the general approach to be taken is one of construing the use broadly. It is to be construed liberally such that confining the user to precise activity is not required. What is required is the determination of the appropriate genus which best describes the activities in question. 3. In determining that genus, attention should be focused on the purpose for which the determination is being made. This is a town planning purpose. It therefore considers the use from the perspective of the impact of the use on the neighbourhood. This is because the regulation of the use within the neighbourhood is the general purpose for which planning law is provided."
Highly material, for the purposes of the case before me, is the first numbered "matter" which Kirby P found emerges from the authorities: that in the end characterisation will depend upon a detailed examination of the facts in each case. Secondly, the general approach is to focus on the "use" broadly. By emphasising the detailed examination of the facts, but concurrently holding that the general approach is to approach the question broadly, indicates that there are instances where a more focussed approach to defining the land use in question may be necessary or warranted - obviously led by the facts of each case, guided by an understanding of the relevant historical record of land use. Critically, the third "matter" required for the exercise of determining the characterisation of a use is, that attention should be focussed on the purpose for which the determination is being made. In focussing on the purpose of the determination in that matter, Kirby P held that it was necessary to consider the impact of the use on the neighbourhood, and explained that the regulation of the use within the neighbourhood is the general purpose for which planning law is provided.
Applying this approach to the present case, there is a very important context established on the facts accepted by the Court: it is clear that, from, at least 1914 there has been a railway ballast quarry on the Eastern Lands, at least for as long as it was lawfully operated (see Exhibits 4A, 4B and 4C). Whether a component of that railway ballast quarry, by virtue of an ancillary land use, continues to operate, or ceased at an identifiable point in time, such as on 30 November 2012 when RailCorp (formerly the SRA) sold its assets to the Second Respondent, or earlier due to a transformation of the land use, is at issue, and will be returned to later.
Earlier in this judgment at [189]-[208] I have described the factors which the Court has accepted as confirming this species of quarry, being railway ballast quarry, as distinct from a more generic "genus" of quarry. The documentation placed into evidence left the Court with no doubt that the railway ballast quarry on the Eastern Lands never varied in character during its years of lawful operation, until what appears to have been a transformation (a matter addressed later). It is the integral connectivity of mode of operation, location and, historically, the primary product being produced, that leads the interpretation exercise to the necessity to consider the impact of the use on the neighbourhood as a relevant factor. As was the case in Royal Agricultural Society, in this matter the determination as to characterisation of existing use is being made for a planning purpose (being under the auspices of the EPA Act and various LEPs). It is therefore necessary, as Kirby P noted, to consider the impact of the use on the neighbourhood as a relevant factor in characterising that use.

[156]

Relevant factors affecting impact of railway ballast quarry

As described earlier, there are a number of factors which render a railway ballast quarry more effectively contained, with less external impact, than a generic quarry. These include: 1. the winning of crushed rock for use on the railways; 2. purpose-built railway siding and loading facilities; 3. purpose-built spur line connecting to the State's rail grid; and 4. capacity to collect the railway ballast on site and then transport it via railway rolling stock to its end destination.
Considering the relevance of such a characterization in the context of the "impact of the use on the neighbourhood", the differential between the "contained" interface of operations of a railway ballast quarry, and the far less constrained operations of a generic quarry, is clear. With the latter generally not utilising railway stock, and therefore being reliant on truck road transport, the external, off-site, environmental and amenity impacts must, as a matter of logic, be significantly greater for a generic quarry than is the case with a railway ballast quarry. The difference in offsite impacts between a railway ballast quarry and a generic quarry is the fifth and final piece in the jigsaw that makes up the characterisation of the land use.
To illustrate this point, in the period since the Company Respondents have strayed, as the Court has earlier in this judgment found, from the 1991 Consent for a railway ballast quarry, the proportions of product being transported by road as distinct from rail has dramatically increased. Already cited in this judgment, informed by the data submitted by the Second Respondent with the SSD Application, the figures reveal that at the time of submitting the SSD Application, approximately 97% of product travelled by road.
In summary, at the Quarry, the five pieces of the characterisation jigsaw were: 1. location - on a railway spur line; 2. primary product - railway ballast; 3. primary mode of operation - utilising direct loading to railway rolling stock from a siding; 4. primary mode of transport - via railway rolling stock, rather than road transport; and 5. the consequential contained environmental impact.

[157]

The protected existing use is a railway ballast quarry

On the basis of the marked difference in offsite environmental and amenity impacts between a railway ballast quarry and a more generic quarry, the Court considers that to argue that the quarry of the Eastern Lands ought to be characterised as a generic quarry would do a disservice to that element stressed by Kirby P in Boyts Radio to consider "the use from the perspective of the impact of the use on the neighbourhood".
Although both parties cited Archibald in support of propositions, the Applicant Council drew the Court's attention to [70] wherein the Court of Appeal accepted the characterisation of a quarry at the species level, finding on the facts in that case that the continued use can be characterised as that of a "quarry for the extraction, processing and sale of road base".
It follows that the Court rejects the Company Respondents' submissions as summarised earlier at [484] in which they asserted that the Eastern Lands quarry should not be characterised as a railway ballast quarry. Their reliance on Shoalhaven City Council v South Coast Concrete Crushing, on the basis that the railway ballast quarry characterisation was focussing, impermissibly, only on the end-use quarry product, was misplaced. Similarly, their reliance on Warlam Pty Ltd v Marrickville Council, on the basis that the railway ballast quarry characterisation, impermissibly, did not accept the natural changes by which an industry is carried out, was also misplaced. To reduce the characterisation argument in favour of a railway ballast quarry down to a simplistic reliance on the end product or a failure to accept change in processes which produce that end product, does a disservice to the, admittedly more complex, consideration required. In this regard, the submissions of the Applicant Council are to be preferred (Applicant Council's closing submissions on Respondents' continuing use rights case at par 5). The interplay of the five elements, which the Court explained in [194]-[197] above and summarised in [616], need to be understood. Given the five interrelated elements of the railway ballast quarry characterisation, the Company Respondents' submissions must fail, as the end product, ballast, is just one relevant component.

[158]

Nexus between operations on Eastern Lands and Western Lands

Moving from the historical use of the Eastern Lands as a railway ballast quarry, to the more recent times since the cessation in 1993 of extraction of rock from the Eastern Lands. The Court must ascertain whether there was an interrelationship between the operations on the Eastern and the Western Lands. The nexus between the Eastern Lands and the Western Lands is a relevant contextual consideration providing some assistance in understanding what the operations on the Eastern Lands were intended by the SRA to be after the 1991 Consent was obtained for the Western Lands.
A further critical issue which will be examined later is whether there occurred a transformation of the land use on the Eastern Lands, despite the nexus to the Western Lands, taking the characterisation away from that of railway ballast quarry to that of industrial processing. As examples of the more extensive or intensive industrial processing, the Applicant Council drew attention to processing components such as the pugmill, the pre-coat plant and all the associated silos, tanks and infrastructure.
Although the 1990 EIS, which the Court has found was incorporated into the 1991 Consent, relates to the proposal for Lots 5 and 6 of the Western Lands, within it are a number of passages which shed some light on what the SRA proposed, in 1990/91, for the Eastern Lands (Exhibit R-1, pp 150, 152, and 160). "1.1 General Introduction The reserves of quality stone for balast (sic) have almost been completely depleted and additional reserves are required for the quarry to continue. The proposed development will ensure that the existing quarrying operations at Martins Creek is retained. 1.2 Summary of Proposed Development The proposal is to develop a "new" quarry on land adjacent to the existing 'old' Martins Creek quarry. The existing infrastructure at the 'old' quarry, that is crushing plant, other fixed plant, mobile plant, haul roads and staff will be retained. Haul roads will connect the 'new' quarry with the 'old' quarry. … The rock will be broken by drilling and blasting and then loaded in haul trucks for removal to the crushing plant. Products will be stored in buns and stockpiles prior to dispatch by rail and road. … 1.3 Development Objectives. The objectives of the development are: 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. … 3 PROPOSED DEVELOPMENT. 3.1 Development. The development is to establish a replacement supply of quality rail ballast material as close as possible to the existing infrastructure at Martins Creek. Land adjacent to the existing quarry has been secured under a lease agreement with the landowner. A haul road will be constructed from the existing quarry to the proposed quarry site. The quarry will be developed on Lot 5. Material will be won by drilling and blasting to form broken rock. Face shovels will load this broken rock onto off-road hail trucks for transport to the existing processing plant."
From the foregoing quoted passages in the 1990 EIS, there can be little doubt that the proposal from the SRA was one involving an operational nexus between the Eastern Lands and that for which development consent was being sought for the Western Lands. The Court's examination of the parameters of the characterisation of a quarry, specifically a railway ballast quarry in [188]-[208] of this judgment in the context of processing on the Western Lands (and as similarly described earlier in this section of the judgment at [607] and [619] with respect to the Eastern Lands), is relevant for examining the parameters of continuing use rights on the Eastern Lands.
The Court is satisfied that the quarrying extraction that was occurring historically on the Eastern Lands, together with its ancillary processing of crushed rock, was that of a railway ballast quarry. As summarised in [563] above, the Applicant Council submitted that the use of the Eastern Lands for the purpose of such a quarry was abandoned on 30 November 2012 upon execution of the sale of RailCorp's assets on the Eastern Lands to the Second Respondent. The Applicant Council stressed that the evidence shows that sale was not on the basis that the quarry on the Eastern Lands was a "going concern". The parties agreed that the cessation of extraction activities on the Eastern Lands occurred in 1993, that is, two years after the grant of the 1991 Consent for the Western Lands.
The Company Respondents submitted that, despite the cessation of rock extraction on the Eastern Lands in 1993, the use of that land as an ongoing quarry (but not specifically a railway ballast quarry) is protected pursuant to continuing land use rights. Those continuing rights were based on two grounds: (1) ongoing rehabilitation; and (2) ongoing processing. As summarised at [478] above they placed reliance on the relevance of the "presence of the administration building, crushing, and screening plant, the weighbridge, stockpiles, circulation areas, and active rehabilitation, all of which were ancillary to the quarrying use". The question as to whether ongoing rehabilitation could alone sustain the continuing use rights is addressed below at [682] and following.
One threshold issue for the Court to consider was whether the nexus between the operations on the Eastern Lands and on the Western Lands was such that, despite the cessation of extraction on the Eastern Lands, it would be lawful for the processing to continue on the Eastern Lands. On the evidence, once quarrying ceased on the Eastern Lands, it is clear that processing was not occurring on those lands in a manner by which it was ancillary to activity on those lands. This question is critical as, unless the processing was ancillary to a lawful use, for instance, extraction on the Western Lands authorised by the 1991 Consent, then it would have to be treated as a stand-alone industrial activity requiring development consent. (This question is quite apart from the question whether there occurred a transformation to stand-alone industrial processing, at some point in time, due to enlargement, expansion or intensification).
As will be seen, the Court does not accept that, historically, there was ever standalone processing on the Eastern Lands that could have the benefit of either existing or continuing use rights. Historically, there was always a nexus to the extraction of stone on site, or on associated land.
The Court is satisfied that if the processing of rock was divorced from actual extractive activity, the activity which is generally encapsulated in the definitions of "extractive industry" and "quarry", be those terms as defined in LEPs in NSW or in dictionaries (as referenced earlier in this judgment), then the processing would be a stand-alone industrial land use requiring separate consent. There are numerous authorities which confirm the necessity of such an interrelationship to be one of dominant land use (here, the actual rock extraction), and the subservient or ancillary land use (in this instance, the processing of that rock). Of course, there can be instances where on one parcel of land two or more distinct land uses may coexist, each either requiring development consent or, depending on the facts, needing to rely on existing use rights. That was not the situation, in the Court's opinion, that prevailed on the Eastern Lands.
Despite the inference to the contrary by the Company Respondents in their reference to Egan v Hawkesbury City Council, summarised earlier at [478], that case stands for precisely this point, providing an example of one circumstance where processing was held to be a separate industrial development requiring consent. A passage in the judgment of Mahoney JA, at 324, clarifies the point: "Before this Court discussion took place as to the description and categorisation of the crushing activities. It may be accepted that, in quarrying activities, there will, or will ordinarily, be some form of progressive reduction in size of the stone quarried. Such an activity would be an activity ancillary to or incidental to quarrying activities. Counsel have accepted for the purpose of this appeal, and the evidence I think indicates, that the crushing activities here in question are not what is merely incidental or ancillary to the quarrying activities. They involve, as the environmental impact statement indicates, the use of machinery, involving a crusher, screens, and 'the secondary plant' to 'produce a selected range of special products', the products below the specified size being for one purpose (roadbase material) and that above the specified size being 'passed back through the crushing plant'. It will no doubt be convenient for a person engaged in quarrying activities to arrange, in some cases, for crushing activities of this kind to be carried out on the quarry site rather than in another place but it has not been contended that in the present case the crushing activities are carried on in the quarry site other than for purposes of business or other convenience."
As already indicated, the Court accepts that up until 1993 there was still extraction of rock occurring on the Eastern Lands and that there was therefore a nexus between the ancillary activity of rock processing and the (presumably) lawful dominant land use of extraction of rock concurrently occurring on those Eastern Lands. On the evidence, the Court has concluded that after the grant of the 1991 Consent there was a legitimate nexus between the extraction of rock operations on the Western Lands and the processing operations on the Eastern Lands. Although the Eastern Lands and the Western Lands are on different title allotments, and although the 1991 Consent was granted solely with respect to the Western Lands, (albeit with inclusion of a rehabilitation condition 2(a) which also sought to include the Eastern Lands), the Court is satisfied that whilst the lands were in the same occupancy and being operated as one enterprise under the same operator, then the processing operations occurring on the Eastern Lands were ancillary to the lawful extraction occurring on the Western Lands, and so could lawfully continue. That is, with the cessation of quarrying extraction on the Eastern Lands, the entitlement to continue processing was totally dependent upon the ancillary relationship to the extraction occurring pursuant to the 1991 Consent remaining lawful. As I have explained earlier at [456], citing Mollica v Shire of Bulla, an ancillary purpose is only lawful as long as the dominant purpose remains lawful.
In passing, it is advisable to focus for a moment on the ramifications of the Western Lands and the Eastern Lands being on different land titles, so as to answer the question how far the ancillary purpose might be capable of separation from the dominant purpose of rock extraction. On reflection, there must be numerous instances across the State where large quarrying operations occupy large parcels of land which may embrace many titles. The incremental increase in a quarrying operation might see the acquisition of new lands, perhaps where an adjoining new rock resource has been identified, in order to keep a quarrying operation continuing. In such circumstances, extant processing equipment on the first lots of land might be given extended life as new rock supplies are sourced on nearby land (being precisely that which occurred at Martins Creek). Therefore the dependency of ancillary land use (processing) to dominant land use (extraction) should not be determined simply by reference to land titles. There may be circumstances where titles are relevant - but not generally, and certainly not in this case before me. The critical consideration is one of operational nexus and what I can only describe, with imprecision, as "reasonable proximity". There will be cases where the separation in distance or location is too great between land upon which the dominant land use is occurring and the dependent ancillary land use is occurring, where there is insufficient proximity, and it would be clear that the activities are not conducted as one operationally. Each case must necessarily depend on its particular circumstances.
In this case the Eastern Lands and the Western Lands, which essentially abut as they are separated only by Station Street, have in fact been operated as one since the 1991 Consent and, on analysis of the evidence such as the 1990 EIS (as quoted earlier in [622]) were clearly intended to be operated as one. In short, after the cessation of extraction activity on the Eastern Lands in 1993, the ancillary processing on those Eastern Lands was dependent upon the dominant activity, extraction of rock, lawfully continuing on the Western Lands. That is, the circumstances of this case provide both operational nexus and reasonable proximity.
Earlier in this judgment I have determined that the extraction of rock that has been occurring on the Western Lands since the exhaustion of the resource (which was allowed to be extracted), quite possibly for as long as 14 years, could not be occurring lawfully in accordance with the 1991 Consent. In short, the rock being provided to the Eastern Lands from the Western Lands has been obtained without development consent. As discussed above, given the requirement that an ancillary land use is dependent upon a dominant land use being lawful, in the circumstances of this case the Court has concluded that the processing on the Eastern Lands has been deprived of its entitlement to rely on continuing use rights, as a component of a railway ballast quarry, as there is no continuing extraction on the Eastern Lands and that extraction which is occurring, for many years (perhaps 14), on the Western Lands is contrary to planning law.
Although, as explored earlier at [379] and following, the 1991 Consent, so far as extraction was concerned, may have been "exhausted" - it having run its lawful course - as the lawful extraction of rock permitted must have concluded on the permitted 5 ha area of Lot 5, it is arguable that the 1991 Consent is no longer "capable of being implemented" lawfully (to borrow from Handley JA at [24] in Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 as far as extraction is concerned. However, as indicated earlier, that question need not be finally determined. Be that as it may, in circumstances where extraction of rock must have necessarily, on the Court's assessment of the evidence, been occurring on land that was not permitted by the 1991 Consent, and whilst a new development consent has not been obtained for this further extraction (which has most probably been occurring since 2004), then there is no lawful dominant land use to which the purportedly ancillary land use of processing on the Eastern Lands must relate.
In short, the processing of rock on the Eastern Lands is not a stand-alone land use that is capable of continuing by virtue of continuing use rights. Continuing use rights of an ancillary land use can only co-exist with a dominant lawful land use, so while lawful extraction of rock was occurring in the past, it was concurrently lawful for the ancillary land use of processing to continue. The processing of rock, be it on the Eastern Lands or the Western Lands, has only ever been ancillary, and so was a land use entirely dependent upon the continuing lawfulness of the dominant land use of extraction of rock.
Once the ancillary processing of rock on the Eastern Lands became deprived of the critical nexus to a lawful dominant land use, it was always an option for the quarry operator to apply for development consent for processing as a stand-alone industrial activity. In the absence of a new development consent, such processing is necessarily occurring contrary to planning law. The Company Respondents' convoluted case endeavouring to convince the Court to find that processing on the Eastern Lands was still lawful, may simply have been avoided many years ago had a new development consent been obtained

[160]

The implications of the Tertiary Crushing Plant consent DA 162/99

There is significance in the exclusion of that area formerly known as Lot 2 DP524511. Following the presentation of legal submissions from the then RSA to the Applicant Council at a Council meeting on 18 May 1999, the Council passed a resolution (Exhibit R-1, p 656) to the following effect: "1. The documentary evidence supplied by RSA for existing use rights on Lot 2 in DP 524511 for the processing of material be accepted and no further action be taken with regard to RSA's use of the quarry, provided no further evidence is produced that alters these findings, in which case Council will review its position on the matter. 2. Processing of materials on Lot 2 in DP 524511 is limited to 449,000 tonnes of bulk material per annum."
The legal submissions from RSA were based on three legal opinions from a member of counsel, Mr John J Webster, dated respectively 10 March, 1 July, and 6 July 1998. These opinions together comprised Exhibit 14 before the Court. Quite properly, Mr Webster's opinions were predicated on his understanding of the facts as contained within his instructions. The Court observes that if the factual basis of instructions outlined in a counsel's brief are misconceived, then the opinion based upon those facts can be flawed.
As a consequence of the Applicant Council's resolution accepting the legal representations that there were existing use rights on Lot 2 in DP 524511 for the processing of material, the Council then accepted a development application, DA 162/99, dated 12 June 1999 for the "erection and operation of fixed tertiary crushing equipment" on that Lot 2 (Exhibit R-1, p 658). DA 162/99 was accompanied by a SEE (Exhibit R-1, pp 660-663). Cognizant of the need not to jeopardise the existing use rights which the Council had accepted as being extant on Lot 2, the SEE stated: "This development work simply replaces the previous system of utilising portable crushing and screening plant with fixed plant. It does not provide any greater productive capacity for the quarry. There will be no increase in the vehicular movements to the quarry as a result of this work".
The Council resolved to issue a development consent in relation to DA 162/99, sending a "Notice to Applicant of Determination on 17 September 1999" (Exhibit R-1, pp 663-666). This consent specifically confirmed: (i) that it was with respect to Lot 2 DP 524511; and (ii) by condition 2, that "The proposed development is to be carried out strictly in accordance with the details set out in the application and the plans numbered DA 162/99 except as modified by the conditions of consent". It is to be noted that the SEE states in its chapeau: "Attachment to development application for Lot 2 Martins Creek, Martins Creek Quarry, Douglas Street, Martins Creek, 2420". Accordingly, with the SEE stating that "[the proposal] does not provide any greater productive capacity for the quarry", Condition 2 set the upper parameter of production from the new tertiary crushing plant. In this regard, the Court accepts the submissions of the Applicant Council at pars 125-129 of its closing submissions.
The Company Respondents submitted (at par 167 of their closing submissions) that the Court should disregard the output from the tertiary plant because, they said, it operated under its own consent, being the consent granted with respect to DA 162/99, with no limit on the production level, and did not produce railway ballast. However, it is understood that the material processed within the tertiary crushing plant must be first processed by the primary and then secondary plant (T570.48-571.2). The Applicant Council's response to this contention was as follows: "34. The proposition that the tertiary plant had no limit on the production level is unsound for two reasons. Firstly, it was an express condition of consent that the development be carried out strictly in accordance with the details in the application. This included the statement of environmental effect and in particular the statement that the tertiary plant did not provide any greater productive capacity for the quarry and that there would be no increase in vehicular movements as a result of the proposed development (as to which see the Applicant's Closing Submissions at [125]-[129]. Secondly, the lawfulness of tertiary processing was necessarily constrained by the quantum of material that could be processed by the primary and secondary plant's continuing use rights as at 3 February 1986. Noting that (notwithstanding the applicant's concession that there was a right to process 449,000 tonnes of bulk quarried material/310,000 tonnes of saleable product per annum) this was prior to the erection of the secondary plant building in 1987 which increased the capacity of the Martins Creek Quarry and which remains to this day. [Applicant Council's closing submissions at [98]-[106]]. That is, the downstream production capacity of the tertiary plant is constrained by the lawful use and capacity of the upstream primary and secondary plant."
As foreshadowed earlier, the Court has misgivings regarding the opinion expressed by Mr Webster, based as it was on an interpretation of the factual circumstances at Martins Creek placed before him in his instructions. The advice was predicated on the source of rock for processing coming from land other than Lot 2 as sustaining the proposition that there were two land uses operating on the Eastern Lands, one being the extraction of rock and processing of product from Lot 2, and the second being the separate use of processing product obtained from other lands. With the latter "separate" land use having been established, according to Mr Webster, the processing of material from other lands was a stand-alone use that could continue with the benefit of existing use rights, it being said, according to Mr Webster's instructions that such uses were operating before "the Planning regime operated to require Planning Consent". Mr Webster qualified his advice as follows: "Provided the factual basis for the 'existing use' on Lot 2 is in accordance with the matters set out in my earlier brief and during conferences, it is reasonably open to the Council to find that the existing use for the processing of product from Lot 2 would be from Lots 5, 6 and 42 but may be wider".

[161]

Analysis of the evidence of historical processing on the Eastern Lands

First, the Court starts with a contextual reiteration with respect to the distinction between a generic quarry and a species of quarry, namely a railway ballast quarry. On all the evidence relied upon by the Company Respondents, there was, in the Court's assessment, invariable reinforcement of the view that from 1914/15 to some imprecise concluding date (most likely years before the sale to the Second Respondent in December 2012), the quarry on the Eastern Lands was a railway ballast quarry, contrary to the view expressed by the Company Respondents, preferring as they did either "quarry" or "railway undertaking". With respect to the ancillary processes, there was also clear evidence, not surprisingly, that the quarry on the Eastern Lands involved all of stripping, drilling, blasting, crushing, screening, stockpiling and the loading of materials, being processes associated with such a quarry, processes commonly found at many quarries. Importantly, the evidence shows that the material processed on the Eastern Lands came from the lots comprising the Eastern Lands until such time as the quarrying ceased on those Eastern Lands in late 1993, proximate to such time, most probably during 1992, the source of rock was then the Western Lands. The Court could choose from the evidence book many instances of confirmatory documents describing the processing, but to cite just one, the SPCC licence 01978 granted on 1 March 1990 confirmed the licensing of "grinding and milling works, processing of material in quantities per annum of more than 200 kilotonnes but not more than 500 kilotonnes" (Exhibit R-1, p 610).
In addition to the documentary evidence, with respect to understanding the processes on the Eastern Lands the Court found the oral evidence of Mr Martin persuasive. Mr Martin had an extraordinarily long continuing employment at the quarry on the Eastern Lands commencing in 1968, and so was able to give a perspective extending over decades. His description of processing, in particular the differing modes of rock crushing and when they were introduced, was helpful. Clearly, processing was always an ancillary use of the Eastern Lands, associated with the extractive activity, throughout Mr Martin's years at the Quarry. In this respect, to a certain extent, the evidence of Mr Walker was also helpful when describing the processing, historically, at the Quarry. However, as the Court has said at other stages in this judgment, Mr Walker had a tendency to be too "self-serving" in the interests of the Company Respondents, which sadly infected the objectivity and so usefulness of his evidence.
Importantly, the Court finds no basis to accept that the processing that had occurred historically on the Eastern Lands was anything other than processing that was ancillary to the primary extraction of rock on the Eastern Lands. Further, the fact that rock was brought from adjoining or associated lands for processing, particularly those lots comprising the Western Lands, did nothing to negate the continuing ancillary activity of processing. It was not, in the Court's opinion, a stand-alone separate land use of rock processing. Consequently, after the quarrying ceased on the Eastern Lands, processing was only capable of continuing if the associated extraction of rock on the Western Lands remained a lawful operation. As found earlier, once the operations on the Western Lands trespassed into an illegal operation, by reason of the absence of further development consent over extended areas, then the lawfulness of the ancillary relationship collapsed. I am of the opinion that Mr Webster's advice was erroneous, based as it was on incorrect instructions.
With respect to the Company Respondents' reliance upon the processing from the tertiary crushing plant being lawful, the Court is of the opinion the Applicant Council's rebuttal is sound. The tertiary processing plant was dependent upon a supply of material having been processed first via the primary and secondary crushers, but in all instances the legitimacy of those operations was dependent (after quarrying ceased on the Eastern Lands) on the lawfulness of the operations on the Western Lands. As I have already found, on a number of bases, the operations on the Western Lands ceased being in accord with the 1991 Consent many years ago.
Further, if the processed material coming from the Western Lands via the Eastern Lands processing operations is of the scale evident from the evidence placed before the Court, even if the Court's view regarding the basic legitimacy of the use of the tertiary crushing plant is erroneous (in which case such use is lawful), it is clear that the quantum of material being processed exceeds that which was allowed by the consent issued in 1999 with respect to DA 162/99. Condition 2 of that consent is unambiguous, tied as it is to the SEE that accompanied the DA. Accordingly, the Court concludes that in determining the contentions before it regarding the operations on the Eastern Lands, it should not disregard the material the subject of tertiary processing.
The Court does confirm that in circumstances where it has not been requested to make findings and orders specifically in relation to that portion of the Eastern Lands which was formerly known as Lot 2 DP 524511, nor to make specific findings regarding the lawfulness of the consent to DA 162/99, it has not done so. However, forming the view it has regarding Mr Webster's opinion, whilst noting that the Council may have felt bound to accept that advice, the Court is not so bound. Accordingly, in determining the issues in contention regarding the Eastern Lands, the Court has done so on its interpretation of the evidence before it.

[162]

The Company Respondents' railway undertaking argument

The Company Respondents at pars 193-216 of their closing submissions put forward an alternative case which was a complex argument that the development on the Eastern Lands, including the processing of rock, was permissible without consent based on a continuation of that which was a "railway undertaking" but concurrently with the development being "a quarry". With respect to the first, they claimed immunity from the requirement to obtain development consent, whilst with respect to "quarry", they claimed the benefit of continuing use rights. The Court must examine the implications of the Eastern Lands having been a "railway undertaking" within the meaning of the Model Provisions 1980, between 6 April 1990 and 1 December 2012, and on that basis, after the railway undertaking ceased, whether s 109(1) continuing use rights allow the processing of quarry product to continue.
Given the complexity of the railway undertaking proposition, the Court is assisted by incorporating some passages from the parties' submissions. Quoting from the Company Respondents' closing submissions at pars 159-162 and 168, in which they submitted: "159. Dungog Local Environmental Plan 1990 (LEP 1990) was gazetted on 6 April 1990. It adopted parts of the Model Provisions 1980 including cl 35: cl 6. Clause 35 provided that nothing in the instrument was to be construed as restricting the carrying out of development listed in Schedule 1. One of the developments specified in Sch 1 was: 1. The carrying out by persons carrying on railway undertakings on land comprised in their undertakings of - (a) any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant …. 160. Thus, development which fell within the description in Sch 1 was permissible without consent. In the discussion below, we will refer to development satisfying the description of Schedule 1, cl 1(a) as "railways development". 161. There are three requirements for development to be characterised as railways development. First, it must be carried on by a person carrying on a railway undertaking. Second, it must be carried on land comprised in that undertaking. Third, it must be "development required in connection with the movement of traffic by rail ….". 162. At all relevant times to December 2012, the Quarry was operated by some embodiment of the New South Wales Crown responsible for railways. At 6 April 1990, activities in the Processing area were carried on by the SRA on land which had been acquired by the NSW Crown for railways purposes. The SRA was vested under the Transport Administration Act 1988 with the function of operating railway passenger services and railway freight services, and also constructing railways. In 1996 the operator of MCQ became the RSA, which was responsible for supplying goods and providing services to the rail industry in New South Wales. Just prior to transfer of the land to the second respondent, the operator of MCQ was Rail Corporation NSW (Railcorp), while the owner of the land was the Rail Infrastructure Corporation. The functions of Railcorp included the operation of railway passenger services, and the ownership, establishment of infrastructure facilities. Thus, the use in the processing area satisfied the first two requirements of being carried on by a person carrying on a railway undertaking on land comprised in their undertaking. … 168 It follows that the use of the processing area for quarrying was lawful immediately before the coming into force of LEP 2006. This use was permissible without consent because, in addition to being a quarry, it was also railways development within the meaning of the Model Provisions 1980, Sch 1 cl 1."
There were many elements to the Company Respondents' argument regarding the "railway undertaking" however, the Court having already provided a précis of their submissions at [494]-[506] above, will not exhaustively outline every nuance of the argument, nevertheless they have all been carefully analysed. At par 21 of the Applicant Council's closing submissions on the Company Respondents' continuing use rights case a useful summary of the three broad propositions encapsulated in the Company Respondents' arguments was provided. The Court considers this summary to be accurate. "(a) Respondents' First Proposition: From 'at least 6 April 1990', when the Dungog Local Environmental Plan 1990 came into force, as a consequence of the operation of clause 35 of the 1980 Model Provisions (read in conjunction with clause 1 of Schedule 2 to that instrument) "the use of the processing area was permissible without consent as a railway undertaking, and that remained the position from 'at least 6 April 1990' throughout the remaining period during which Railways NSW and its successor State agencies had the control of the quarry. (b) Respondents' Second Proposition: When the second respondent took over the quarry on 1 December 2012, the use of the Eastern Lands did not change, but the operation ceased to be a railway undertaking within the meaning of clause 1 of Schedule 2 to the 1980 Model Provisions by reason of the change in the identity of the user from a State instrumentality (Railcorp) to a private corporation (the second respondent) and it was only at that point in time that, for the first time, there was a requirement under the then-prevailing LEP (the Dungog Local Environmental Plan 2006) for development consent to carry on the use of the Eastern Lands for the purpose of a quarry. (c) Respondent's Third Proposition: As the requirement for consent only arose for the first time on 1 December 2012, continuing use rights within the meaning of s 109(1) of the EPA Act attached to the land on that date. Thus, when it comes to the assessment of whether the use was, inter alia, enlarged, expanded or intensified within the meaning of s 109(2), and thus removed from the protections of s 109(1), one has to compare the current development with the development as at 1 December 2012."
After giving due consideration to the Company Respondents' "railway undertaking" argument, the Court has reached the following conclusions. First, the Court understands the motivation behind this novel argument is that the Company Respondents wish to avoid the prospect of the current development on the Eastern Lands being assessed as having "enlarged, expanded or intensified", within the meaning of s 109(2) of the EPA Act, since 3 February 1986, rather they wish the Court to accept that the reference date is 1 December 2012. Such motivation should not influence a proper interpretation of the planning law.
The Court prefers the Applicant Council's analysis of the way by which s 109(2) should be applied to the factual history in this case. As the Applicant Council submitted: "The conventional position is that the relevant reference date for the purposes of assessing whether a current development has been, inter alia, enlarged, expanded or intensified within the meaning of s 109(2) of the EPA [Act] is 3 February 1986, being the date when s 109(2) came into force".
I accept that the Applicant Council's submissions are correct when they state that the only conventional exception to selecting the date on which s 109(2) of the EPA Act came into force, 3 February 1986, as the reference date is that, if a planning instrument comes into force on some date after 3 February 1986, and it is the first instrument which provides that consent is required for the development in question, the relevant reference date will be the date of the coming into force of that later instrument.
On review of the historical succession of planning instruments applicable to Martins Creek, the Court accepts that the use of land for the purposes of extractive industry, specifically a railway ballast quarry, has required consent in every planning instrument that has come into force since 12 May 1967. Accordingly, accepting the conventional approach, the relevant reference date for the purposes of determining enlargement, expansion or intensification of the extractive industry within the meaning of s 109(2) of the EPA Act is 3 February 1986.
The evidence before the Court is that the Eastern Lands, at a time relatively proximate to the Court hearing, according to the Company Respondents, has an output of processed quarry product of an average of 906,000 tonnes per annum, which is more than double the output of product in 1986. That output, compared to the position in 1986, represents a contrast in scale that is nothing less than dramatic.
The Model Provisions 1980 was adopted by LEP 1990, which came into effect on 6 April 1990. However, I accept the Applicant Council's analysis that in every planning instrument that has applied to the Eastern Lands since 12 July 1946, when Ordinance 105 came into effect, through to 1 June 2014 when LEP 2014 came into effect, there was a clause to the same effect as cl 35 of the Model Provisions 1980.
The Court does have difficulty with the concept that there could be two concurrent independent land uses, quarry and railway undertaking, on the Eastern Lands during those times when the operations on the Eastern Lands were run by the SRA or other similar State railways instrumentality. Depending upon which land use was in focus, the Company Respondents' arguments sought to establish their continuing use rights via the pathway of the other land use. The Company Respondents submitted that whilst a railway undertaking, it could continue exempt from the requirement to obtain a consent and then, when no longer a railway undertaking, it could continue pursuant to s 109(1) continuing use rights.
The Court agrees with the Applicant Council's submissions that, as a consequence of this approach, inconsistencies and uncertainties arise. The most obvious inconsistency is that, on the one hand, if one considers the quarry on the Eastern Lands as a "railway undertaking", the effect of cl 35 of the Model Provisions 1980 is that a development consent was not required for what was being carried out on the Eastern Lands; however, if one considers that same operation as a "quarry", the Company Respondents assert that continuing use rights existed under s 109(1), despite it being the case that the relevant planning instrument operative at the time would have provided that such development required consent. In short, the use of the Eastern Lands could not be both concurrently.
The Company Respondents asserted that, at the point of transition on 1 December 2012 from Railways NSW to the Second Respondent, their continuing use rights were subsequently entirely based on s 109(1) of the EPA Act. The Applicant Council raised the serious question as to whether the mere transfer of the land from a State authority to a private sector operator could convert an exemption under the Model Provisions 1980 into a s 109(1) continuing use right. The Applicant Council submitted that such an outcome would run counter to the intent of the legislative regime as the provisions were not intended to confer rights on persons as a result of private transactions they may enter into where no change has been made to the planning regime. Protection of prior rights from changes in the planning regime is, of course, the underlying purpose of provision found in s 109 of the EPA Act.
To the extent that the Company Respondents find support for their propositions in No Dump (No 2), I agree with the Applicant Council that I should, on the basis that this case has never been about a prohibited use on the Eastern Lands, in contradistinction to the situation in No Dump (No 2), I follow the lead of Biscoe J in Greengate Consulting (NSW) Pty Ltd v Ashfield Municipal Council and distinguish Talbot J's reasoning. Further, I accept the Applicant Council's arguments at par 70 in the Applicant's Council's reply as being correct with respect to Shoalhaven City Council v South Coast Concrete Crushing - that the case is not relevantly analogous, given factual circumstances which are manifestly different to those in the case before me.
Focussing on s 109(2)(b) wherein it is provided that (to paraphrase): any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned is not authorised by the s 109(1) continuing use protection. The Company Respondents argued that the relevant time at which LEP 2006 came into operation in relation to the processing area within the meaning of s 109(2)(b) was 1 December 2012. It will be recalled that was the date of the sale transaction from RailCorp to the Second Respondent.
The Court does not agree with the Applicant Council's submissions at pars 24-27 of its Company Respondents' continuing use rights case whereat it was submitted the Court ought not accept that the quarry on the Eastern Lands was on land of the kind specified in cl 35 of the Model Provisions 1980. They submitted that although the railway authorities were undoubtedly "carrying on railway undertakings", the Eastern Lands did not constitute "land comprised in their undertaking". The Court agrees with the Company Respondents' submissions in this regard as summarised earlier at [586]-[589], however, given the tendency to more expansive expression in the submissions, stresses that this agreement is limited to the specific issue of determining the meaning of "land comprised in their undertakings". The Court does not accept that the railway undertaking had to be limited to just the northern railways corridor, which was identified as only the railway line and ballast loading facility abutting the railway line. The Court has earlier confirmed that historically the Eastern Lands constituted a railway ballast quarry due to the five interrelated components previously explained - subject to the caveat: when it was being legally operated as such.
The Court finds the Applicant Council's arguments in this respect confusing as in its closing submissions on the Company Respondents' continuing use rights case it said at par 5: "Upon further reflection of the matter the applicant says that the appropriate characterisation is a '[q]uarry for railway purposes'. That characterisation is consistent with the purpose for which the lands were resumed". Reference was made to the notice of the first resumption dated 18 February 1914 (Exhibit R-1, p 103). It follows that the Court rejects the proposition that, when the Quarry was still performing the function of a railway undertaking, that is, a railway ballast quarry, the Eastern Lands quarry were not lands comprised in the undertaking.
However, despite rejecting the submissions on that land designation, the primary submissions of the Applicant Council on the railway undertaking proposition remain sound. The Court finds the arguments of the Company Respondents regarding the interaction between the exemption of the railway undertaking pursuant to the operation of cl 35 of the Model Provisions 1980 and the application of s 109(1) is difficult to sustain. The Court is satisfied that once the transfer of the Eastern Lands to the First Respondent occurred, even if prior to that there had been an exemption from the need to obtain a development consent, at that point the exemption fell away. However, the Court is of the opinion that there is a question as to whether there was any exemption extant at that transfer date in any event.
By the stage of the transfer in December 2012, the evidence is clear that only a small element of the transferred operation related to the production of railway ballast (utilising rock transferred from the Western Lands). Further, with the reduction of ballast production, the utilisation of the railway for transporting product, and so the associated onsite ballast loading facilities, was very significantly reduced. The expansion in operations at the Quarry had progressively moved away from processing being conducted for railway purposes. The processing of materials had obviously become diverse, with a range of products unrelated to the original historic purposes of producing railway ballast. The Court considers that there is sufficient evidence to conclude that a transformation had occurred, perhaps incrementally, which had moved the processing away from the production of product for railway purposes, thereby negating any claim to a "railway undertaking" continuing. One consequence of such a transformation would be that the processing on the Eastern Lands could not be capable of being classed as the kind of concessional operation described in cl 1 of Sch 2 of the Model Provisions 1980.
That clause had three component prerequisites: (i) being carried out by persons carrying on railway undertakings; (ii) on land comprised in their railway undertakings; and (iii) with respect to any development required in connection with the movement of traffic by rail, including the construction, reconstruction, alteration, maintenance and repair of ways, works and plant. Whilst the predominant product of the operation on the Eastern Lands remained railway ballast, its production would satisfy the third prerequisite. Whilst the Eastern Lands were being used to produce railway ballast (as the predominant product), then those Eastern Lands would constitute land "comprised in the railway undertaking", thereby satisfying the second prerequisite. Finally, whilst persons such as RailCorp were carrying on that railway undertaking, then the first prerequisite would be satisfied.
Evidence before the Court has confirmed that the railway ballast component long ago became a minor component of the processing on the Eastern Lands. That transformation occurred years prior to December 2012. When precisely the balance tipped, the Court is unable to ascertain on the facts before it, but as to whether it did tip, the Court has no doubt. Exhibit E is just one piece of evidence indicating that by 2003/04, the non-ballast product being produced was more than three times the ballast product. That same Exhibit E reveals that by 1996/97, railway ballast was already well below 50% of the processed material. It is further noteworthy that by 2003/04, of the ballast product, a significantly lesser proportion was transported by rail than by road. The diversity of quarry product processed on the Eastern Lands extended far beyond that capable of being categorised as the third component. Although there would not be a precise cut-off figure, there is a strong case for it to be argued that the lesser the proportion of railway-related material, such as ballast, "required in connection with the movement of traffic by rail", the weaker the claim to immunity pursuant to the Model Provisions 1980. Once that third component fell away, no longer could it be argued that the land is being used for the production of railway undertaking material, so the second component would then necessarily fall away. Although a rail entity might have remained in control of the Eastern Lands until December 2012, if the other components had fallen away, any previous Model Provisions 1980 entitlement to exemption from a requirement to obtain development consent would no longer exist.
The Court accepts that the evidence of the sale transaction from RailCorp is instructive. A summary was provided at pars 37-40 in the Applicant Council's closing submissions on the Company Respondents' continuing use rights case as follows: "37. The evidence relied upon by the first and second respondents to support the proposition that from November 2012, the said land ceased to be comprised in a railway undertaking, and therefore continuing use rights were enlivened, is the evidence of Mr Darren Robson that 'HIRE as trustee for the SMFT purchased the plant and equipment at the Martins Creek Quarry from Rail Corporation New South Wales in November 2012. HIRE owns the fixed plant and buildings at the Quarry. This is hired under the license agreement to Buttai Gravel Pty Limited.' 38. Most notably, RailCorp was not prepared to sell, and HIRE [the First Respondent] did not purchase, the quarry as a going concern. It purchased the physical assets only. Contrary to the assertion that the second respondent 'Buttai' took over the quarry from RailCorp what in fact happened was that it commenced a new quarry. 39. The evidence demonstrates that: (a) in 2009 RailCorp formed the view that it would withdraw from the Martins Creek Quarry as it was surplus to its needs; (b) in 2010 RailCorp intended to sell its interests in the assets situated at the Martins Creek Quarry but was not prepared to sell it as a going concern; (c) as at 28 November 2012 this remained the position; and (d) the Asset Sale Agreement executed on 30 November 2012 as between RailCorp and HIRE was for the sale/purchase of assets only and not the quarry as a going concern and no warranties were made by RailCorp as to the existence of any approvals to operate the assets. From these facts one can readily infer that immediately prior to 30 November 2012, being the date of the asset sale agreement as between RailCorp and HIRE, RailCorp's intention to abandon the Martins Creek Quarry crystallised. If the Court accepts that RailCorp abandoned the Martins Creek Quarry, even if only a split second before the asset transfer, then the respondents do not have any continuing use rights under s 109 EPA Act. 40. The immunity was personal to Railcorp and the immunity ceased on the sale of the equipment so there was an abandonment or cessation of the development. The respondents concede that the activities which relied upon the exception for railway undertakings ceased in November 2012. It follows that there can be no continuing or existing use rights."
Further clarity is provided by the Applicant Council's closing submissions at pars 319-321: 319. On 15 April 2010 the Deputy Corporate Counsel for RailCorp swore an affidavit in the 2009 proceedings deposing to an impending sale of the assets of the Martins Creek Quarry and noting that 'the Respondent is currently negotiating with a party in respect of the sale of the quarry assets. The Respondent's intention is that the sale will be an asset sale only and that warranties will not be given in relation to the use of the quarry'. (Evidence Book Vol 2, p. 1012 [5]). It was further stated that 'Consequently, it is likely that the quarry assets will cease to be owned by the Respondent [RailCorp] within a relatively short period. There is also a distinct possibility that: (a) any incoming purchaser would have its own plans in respect of the quarry and would not seek to rely on the existing planning position in respect of the quarry; (b) this may involve some degree of additional planning approval being obtained, whether from the Council or the Minister for Planning; (c) these proceedings, in so far as they relate to allegations concerning the conduct of the Respondent, would be rendered futile, because….[n]either of these orders would be enforceable against an incoming purchaser'; (d) as a practical matter, the question of compliance with consents and the planning regime applying to the land would, on the sale of the quarry assets, become a matter between the incoming purchaser and the Council, and would cease to be a matter for the Respondent.' (Evidence Book Vol 2 at pp. 1012-1013) 320. It was in the above context that a settlement was reached between Council and RailCorp and the proceedings were discontinued. Noting however, that the settlement required that in the period between 1 May 2010 and the 'Settlement Date' being the date on which RailCorp assigned its interests in the assets of the Martins Creek Quarry production levels were not to exceed 550,000 tonnes per annum. (Evidence Book, Vol 2 at pp. 1023-1032)"
On the basis of the foregoing analysis of the evidence and submissions, the Court has concluded that the Company Respondents have not established that they are entitled to rely on the continuing use rights protection afforded by s 109(1) (now s 4.48) of the EPA Act. The Court is also satisfied that, years prior to the sale of the Eastern Lands in December 2012, the entitlement of RailCorp to rely upon the Model Provisions 1980 had terminated due to a transformation of the production operations on the Eastern Lands. Determining the precise date at which such a transformation occurred is not required for the Court to be confident that the Applicant Council has made out its case and so is entitled to the relief it seeks.
As for the decision that it was not open to the Company Respondents to claim continuing use rights under s 109 (now s 4.68) of the EPA Act with respect to the Eastern Lands, the Court is satisfied that what was once a railway ballast quarry was transformed, impermissibly, at a point in time between 1991 and 2012 into an industrial operation processing quarry products, quite unrelated to the original railway ballast quarry, in relation to which there has never been development consent. As with the previous finding, again the Court does not believe that determining a precise point in time when the transformation occurred is required for the Court to be confident that the relief sought by the Applicant Council is warranted.
Further, even if the Court could confidently pinpoint a time when past entitlement to continue operations as a railway ballast quarry was established, including producing crushed quarry product as an ancillary land use of the primary or dominant land use of the extractive component of the Quarry, the Court is satisfied on the evidence that the increase in the processing of quarry product, most probably with an associated increase in the actual area occupied by that processing, would trigger s 109(2) of the EPA Act, thereby defeating any residual claim to continuing use rights. The evidence before the Court has convincingly demonstrated that a very significant increase in production has occurred. As decided earlier, the intermediary function of the tertiary crushing plant with respect to significant quantities of product, that is, taking material from the primary and secondary crushers for crushing so as to produce quarry product, does not shift the Court's conclusion. In this respect, the Applicant Council's case, as outlined earlier, that the December 2012 date is not the relevant date to determine the differential between allowed processing and expanded or intensified processing, is upheld.
The Company Respondents submitted a number of further alternative propositions should the Court find against it with respect to its primary Model Provisions 1980 railway undertaking argument and against it with respect to its primary s 109(1) continuing use rights argument. The Court has summarised these alternative propositions at [508]-[533] above together with a summary of its reply contentions. These alternative arguments included the proposition that the Eastern Lands quarry was a public utility undertaking that was expressly authorised without the need for consent, being a Class 2 Development pursuant to cl 4(1) of Ordinance 105. Then there was reliance placed on s 342U(4) of the Local Government Act 1919, submitting that development that was lawful prior to the coming into operation of IDO No 1 in May 1967, being a quarry or extractive industry, could continue. The analysis of relevant planning history as put by the Company Respondents sought to demonstrate that throughout the coming into force of successive instruments, "extractive industry" could either rely upon s 107(1) as an existing use (if it had been prohibited) or a continuing use (if permissible with consent), in which case reliance was placed upon s 109(1) arguing that continuing use rights thereby protected that which remained occurring on the Eastern Lands.
Properly analysed, the Court is of the opinion that the Company Respondents pay too little regard to the important consideration that by whatever definition one resorts to, be it that of "extractive industry" as appeared in the successive planning instruments, or the definition that one finds in dictionaries such as the Shorter Oxford English Dictionary or the Macquarie Dictionary, both of which have been cited earlier in this judgment, at all stages processing was a mere component, an ancillary component, of the primary or dominant component in the land use being the actual extraction of material. The Court does not accept that at any time in the long planning history analysed in this case, that the processing to produce quarry product on the Eastern Lands was anything other than an ancillary activity. The Court has already made some considerable effort to outline the proper approach to the various component elements within a quarrying operation, which falls within the extractive industry definitions. As explained earlier, the Court is satisfied on the evidence that the operations on the Eastern Lands went through successive evolutionary transformation which, collectively, eventually destroyed all the continuing rights asserted by the Company Respondents via the multiplicity of ingenious arguments they submitted to the Court.
In explaining its overall reasons, the Court will recap some of the primary findings upon which it has concluded the Company Respondents' case regarding existing and continuing use rights fail. These findings, all of which have more expansively been explained earlier in the judgment, are as follows: 1. First, one must recognise that there is the basic dissection of "quarry" and "extractive industry" into its dominant and subservient land use components: the actual extraction (or winning) of stone or other material is the paramount component to which the processing of the extracted rock or material is a subservient or, as usually defined, ancillary component. 2. Secondly, if the processing of stone became the dominant activity or land use, then it would be an industrial processing land use, most probably requiring separate development consent. That is certainly the requirement of the planning law now. It has always been the law that one can have two land uses, of equal status, concurrently operating on one parcel of land, however they both then require the requisite development consent, or both need to establish historical lawful rights enabling them to continue. 3. Thirdly, whilst active quarrying, that is, extraction of stone, was occurring on the Eastern Lands, processing was always an ancillary, subservient land use, not in itself capable of being protected as a continuing land use capable of stand-alone operation. The Court is satisfied of this legal characterisation on the basis of the evidence before it, (in this regard the Court considers that Mr Webster's opinion in this respect, supporting a contrary view, (Exhibit 14) was erroneous, most probably because of erroneous instructions). 4. Fourthly, when extraction of stone ceased on the Eastern Lands, it was critical, in order for processing to be able to continue, for it to have a nexus to extraction of rock elsewhere, otherwise it would, if it continued, transform into stand-alone industrial processing requiring development consent. 5. Fifthly, the Court has found the requisite nexus existed between the operations on the Eastern Lands and the Western Lands in order for the processing to continue on the Eastern Lands as long as the extraction process on the Western Lands was lawful supplying the rock for processing (subject to the proviso in [678(6)] below). 6. Sixthly, the Court having made its findings with respect to the Western Lands, to the effect that the extraction of stone could not now be in accordance with the 1991 Consent (and could not have been for many years), then the lawful capacity for the ancillary processing on the Eastern Lands to be able to continue fell away from the time when the extraction on the Western Lands fell outside the 1991 Consent. Once the nexus to a lawful extraction operation was broken, the previous ancillary dependency fell away leaving the processing as a stand-alone industrial operation requiring development consent. Such further development consent has not been obtained. 7. Seventhly, the only quarry or extractive industry that had ever been developed on the Eastern Lands was a species of quarry that the Court has accepted as a "railway ballast quarry", as the Court has defined it with its five component elements. Throughout the history of the Eastern Lands, there was never planning consent, nor continuing use rights, with respect to a generic quarry. Once the prior existing use of the Eastern Lands as a railway ballast quarry was abandoned, whatever extant rights there had been were thereby lost. 8. Eighthly, once the "balance" of the operations on the Eastern Lands changed mode of operation and purpose of operation (product), the operations ceased to be that of a railway ballast quarry. The touchstones of the transformation that took place included: (a) processing of products with little or no nexus to railway operations; (b) change of mode of transport progressively away from rail to truck; (c) changed source of raw material (substantial external non-quarry inputs); and (d) consequential on-site operational changes. 9. Ninthly, the evidence clearly demonstrates that processing underwent significant transformation by way of enlargement, expansion and intensification, thereby adding to the grounds upon which it can be concluded that any continuing use rights that might otherwise exist ceased.

[164]

Do the rehabilitation requirements on the Eastern Lands represent a continuing quarry?

The Company Respondents argued that, beyond their nexus to the Western Lands, the Eastern Lands were still being used as a "quarry" on other bases, thereby allowing the processing of materials to lawfully continue. They placed reliance upon continuing rehabilitation obligations at the Eastern Lands. At par 138 of their closing submissions they said: "Extraction activities in the processing area ceased in early 1993. However even supposing that 'extraction' could be characterised as a separate use to 'processing', this did not mark the cessation of all extraction-related activities to the east of Station Street, because the former extraction areas to the east of the current processing area were then subject to rehabilitation and continue to be subject to rehabilitation up to the present day."
In making these submissions, the Company Respondents relied upon the evidence of the quarry manager Mr Walker. In Mr Walker's affidavit of 25 February 2016 at pars 136-137, he referred to an area to the east of the "Processing Area" at which extraction had ceased by about 1990. He stated that "[t]his area is still progressively rehabilitating. It is still managed as part of the Quarry. I am responsible for the land as the quarry manager. From time to time I visually inspect the area. Buttai carries out weed spraying programs and wild dog baiting programs on this part of the Quarry from time to time".
In rebuttal of these submissions, the Applicant Council said, at pars 15-17 of its closing submissions on the Company Respondents' continuing use rights case: "15. The proposition put by the respondents that rehabilitation of land after the cessation of quarrying constitutes a use of the land for the purposes of a quarry for the purposes of planning law is a novel proposition, which exhibits a flawed logic and it is not supported by any authority. 16. The end to be achieved by rehabilitation is to return the land to its prior natural state. That is another way of saying that rehabilitation is an end in itself. Where extraction has ceased and rehabilitation is a continuing process, the rehabilitation is a post-quarrying use, not a quarrying use. 17. If the respondents' proposition that rehabilitation constitutes use for the purpose of a quarry were accepted, it would lead to startling and undesirable results. To accept the proposition would mean that while ever vegetation planted as part of the rehabilitation was somehow being tended to there could be no abandonment of the use. The practical effect of this would be to artificially legitimise a resumption of a non-conforming use of land for the purpose of a quarry, into a point of time in the future which could not readily be identified, but could undoubtedly be many years, likely decades, after extraction has ceased. Such a finding would have far reaching environmental consequences beyond this case and is one which should not be made."
The Court has already exhaustively explained the distinction between a dominant, or primary, land use and a secondary land use that is ancillary to the primary use. The nexus between the two is of fundamental importance. Just as the Court has already found that the processing of rock is an ancillary land use to the dominant purpose of a quarry, being the extraction of stone, so that reasoning applies with equal force to the rehabilitation. Rehabilitation of land post-extraction is usually a condition of consent and is intended to occur on areas, logically, after the extraction of stone on or around those areas has ceased. Condition 2(a) in the 1991 Consent applicable to the Western Lands is an instance of such a rehabilitation condition. The Company Respondents' arguments would have the effect of allowing an ancillary land use to sustain the continuation of a second ancillary land use. That proposition lacks merit.
The Applicant Council is correct to emphasise the practical effect of the Company Respondents' case relying on rehabilitation as the means to continue active quarrying and so processing of rock, pointing out that the approach would be to artificially legitimise a resumption of a non-conforming use of land for the purpose of a quarry at some uncertain point of time in the future. If the Company Respondents' contention had merit, one could extrapolate it by rhetorically asking: when does a rehabilitation requirement conclude? Would it conclude when young tube-stock trees, planted in a regeneration area, grow to maturity over many decades? There must be a practical end-point. The Court concludes that a rehabilitation requirement in a development consent has a limited, albeit very important, function. That is, to ensure post-development works are carried out to repair the land. To argue that that limited function of a rehabilitation condition could legitimise a revivification of active quarrying, would undermine the integrity of the development approval process and, indeed, the purpose of the rehabilitation condition itself.
The preferred position is that, in order to extend or revive a quarry (with its associated processing) it would inevitably require a further development consent to be obtained. In short, a rehabilitation condition is a post-extraction requirement, not a means of sustaining a use to allow further extraction at an indeterminate point in the future. Accordingly, the Court rejects the proposition that continuing rehabilitation obligations would alone justify the processing of rock to continue on the Eastern Lands. The critical factor remains that rock processing, when it is an ancillary land use, needs to have a nexus to lawfully conducted extraction of stone (or other dominant lawful land use). Where that nexus is broken, say by the cessation of extraction on the Eastern Lands and the cessation of lawful extraction on the Western Lands, if processing is sought to be continued it requires a development consent for a stand-alone industrial activity, which it would now be.

[168]

The First Respondent licences the lands to the Second Respondent

The Applicant Council asserted that the First Respondent has conferred a non-exclusive licence on the Second Respondent to occupy the relevant lands (rather than sub-leasing the lands to it). That is to say, it is open to the First Respondent to "licence the quarrying activity to someone else". The Applicant Council contended that the licence agreement governing this non-exclusive licence (Exhibit R-2, pp 1,163-1,177) demonstrates that the First Respondent is carrying out the development that is the subject of the alleged breaches of the EPA Act. The Applicant Council submitted that the First Respondent is carrying out the development because it is engaged in positive acts to further the relevant enterprise and has also derived direct financial benefit from those activities. The following reasons were provided by the Applicant Council in support of its claim.
First, the Applicant Council submitted that the licence agreement acknowledges that the First Respondent occupies the relevant lands and shows that the First Respondent effectively retains control of the site. The Applicant Council cited the decision of Blacktown City Council v The Penatrators Pty Ltd (No 3) [2014] NSWLEC 4 at [23] in support of the proposition that control of a site is a relevant factor in determining whether to attribute responsibility for development said to be carried out by third parties.
Secondly, the Applicant Council noted that the licence agreement expressly retains a right of access for the First Respondent to the lands and provides that the relationship between the First Respondent and the Second Respondent under the agreement is not one of landlord and tenant but, rather, that of landholder and licensee. Moreover, the Applicant Council said that the First Respondent has, "at the very least", an equitable interest in the activities of the Second Respondent. The Applicant Council cited the lease with Mr Mitchel, rather than the licence agreement, in support of this assertion. More specifically, the Applicant Council noted the obligation imposed by cl 18.8 of that lease on the First Respondent "…to procure the transfer to the Lessor of its interest in Environmental Project Authority Licence [sic] No 1378 at no cost to the Lessor" at the end of the lease.
Thirdly, the Applicant Council sought to distinguish the present circumstances from those in Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 in which it was held that a lessee, who did no more than sub-lease land for a lawful purpose, was not carrying out development. Contrary to that case, where the Court observed that "[t]here was no finding, for example, that the rent was fixed by reference to the illegal use of the premises", the Applicant Council contended that the First Respondent does receive a direct financial benefit from the carrying out of the unlawful purpose by the Second Respondent. Namely, the licence agreement provides that the First Respondent receive a minimum royalty payment of at least $18,000 per month and a financial benefit for hiring plant to the Second Respondent. In fact, the Applicant Council said, it was the Company Respondents' evidence (referring to the evidence of Mr Darren Robson: T728-729) that demonstrates that the First Respondent leases fixed plant and equipment (which it owns) to the Second Respondent "and thus receives a direct financial benefit from the carrying out of the development".
Finally, the Applicant Council submitted that applying Burwood City Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 at [135]-[139] and [143] and Leichhardt Council v Geitonia Pty Ltd (No 6) (2015) 209 LGERA 120; [2015] NSWLEC 51 at [117] (notwithstanding that this was a Class 5 matter) to the present circumstances provides support to its claim.

[169]

The Company Respondents' claim that the First Respondent is not carrying out the relevant development

The Company Respondents contended that the breaches which have been alleged by the Applicant Council cannot be the responsibility of the First Respondent (which the Company Respondents said is sued in its individual capacity rather than as trustee) and, therefore, that the First Respondent cannot be liable. The Company Respondents prefaced their submissions in support of their contention with the following assertions.
The Company Respondents stated that the First Respondent is the corporate trustee for the Susan Mingay Family Trust, "which conducts the business of owning and leasing land for development and other income producing activities". According to the Company Respondents, the quarrying area lands are sub-leased by the First Respondent to the Second Respondent (citing the affidavit of Mr Darren Robson dated 9 February 2016 at Exhibit R-4, p 2,180 [14]). The evidence was said to show that the First Respondent has no employees but does loan its fixed plant and buildings at the quarrying area to the Second Respondent under the licence agreement. In contrast, the evidence was said to show that the Second Respondent employs 25 people "for specialist management tasks" and carries on the business "of the Quarry operation, transport of Quarry materials, contract crushing and stemming services".
In this context, the Company Respondents argued that the First Respondent cannot be liable for any relevant breach of the EPA Act because it is not carrying out the relevant development: citing Hillpalm at [42]-[43] and [47]. The Company Respondents submitted that there is no evidence to show that the First Respondent participated in the requisite sense. It was said that the First Respondent did not engage in any relevant positive action: citing North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 (North Sydney Council v Moline (No 2)) at [24]. Furthermore, the Company Respondents emphasised that the mere receipt of rent and/or royalties is insufficient to make the First Respondent a person who is carrying out the relevant development: citing Wilkie v Blacktown City Council at [59].
Similarly, the Company Respondents submitted that "[t]here is no statutory provision which extends liability to secondary participants, such as aiders and abettors, or persons involved in the contravention". What is significant, according to the Company Respondents, is that the First Respondent "ceded control of the quarry to [the Second Respondent], by the grant of exclusive possession". Finally, the Company Respondents said that the fact that the First Respondent allows the Second Respondent to rent its machinery is anodyne because that machinery can be operated without breaching the EPA Act and that any decision to do otherwise is not the First Respondent's decision.

[171]

Nexus between the First and Second Respondents

The Court finds the nexus between the two Company Respondents too close, with ongoing obligations, to be equivalent to contrary situations examined in other cases which were relied upon by the Company Respondents. The Applicant Council relied upon Blacktown City Council v The Penatrators Pty Ltd (No 3) at [23] where the Court examined a rather convenient interrelationship between companies which were associated by way of a common director and a commercial relationship. Whereas other related entities were found to be involved in dumping of material onto the land in question, such dumping was being carried out with the knowledge of the respondent company in that case. The Court suggested a relevant question was whether the dumping in question was carried out with the agreement of the company that seemingly had the control of the land.
Keeping in mind the basic tenet of planning law that planning consents apply to and "travel with" the land irrespective of who is, for the time being, the owner or occupier of the land in question, it is well to focus on the nature of some of the breaches which the Applicant Council has brought before the Court in these proceedings. In contradistinction to the situation before the High Court in Hillpalm with an extant subdivision and simply the non-registration of an easement, in the current proceedings, although some of the alleged breaches may have occurred, or at least commenced, during the SRA's exclusive occupancy, most of the breaches fall into the category of ongoing activity such as continuing to extract stone in locations and to a depth not originally permitted. Post-acquisition of the lease by the First Respondent, as put by the Applicant Council in its submissions, offending activities, both development and uses, have continued unabated.
Although the more "active" perpetrator of the offending activities may have been and is the Second Respondent, as it operates the Quarry on a day-to-day basis, on the basis of my analysis of the evidence relevant to the status of the First Respondent - the Court accepts the submissions of the Applicant Council. The First Respondent is far more than a benign lessor of lands from the owners Noel Mitchel and Nodekeda Pty Ltd (of their respective parcels). Rather, as summarised above at [695], beyond simply holding the leases over the land comprising the Quarry, the First Respondent derives a profit from the differential between the royalties which it receives from the Second Respondent and that which it passes on to the land owners, and from the hiring fees it receives from the Second Respondent in relation to the equipment it owns which is used to actually operate the Quarry.

[174]

The First Respondent has not ceded control to the Second Respondent

As for the Company Respondents' final submissions on this issue as summarised above in [700], the Court finds no merit in the propositions that the First Respondent has ceded control of the Quarry to the Second Respondent, nor that it is not the First Respondent's responsibility to ensure that hired equipment is used lawfully. The legal relationships examined earlier leave the Court with no doubt that the First Respondent cannot be absolved of all responsibility simply because, through a convenient corporate relationship and sub-leasing arrangement, it cannot absolve itself of all responsibility. If there is some breach of the head lease, say, if the haul roads are not maintained or the contamination site assessment and audit report is not provided, would the land owners simply bypass the First Respondent and sue an entity with which they have no legal relationship? The answer is clearly no - the Second Respondent might be joined to such proceedings by the First Respondent, but it is the latter which would retain the primary responsibility and so be sued for breach of the lease.
As for the so-called anodyne proposition that the First Respondent cannot be responsible for the Second Respondent's use of the former's quarrying equipment in a manner that breaches the EPA Act, the Court considers the argument has no merit. It would not be unreal to expect that a pragmatic reaction to probable breach of the planning law by the Second Respondent, would give rise to the First Respondent (in its oversight role) pressing the Second Respondent not to use its equipment which (a) might jeopardise the continuing receipt of royalties from the quarrying area operations; and (b) might infringe the First Respondent's obligations under the head lease. In the Court's view, such a "pragmatic reaction" would be more than sensible management - in fact it would be necessary due to the interwoven legal obligations explored earlier. In circumstances where the leases would have been entered into with clear knowledge of, for instance, the 1991 Consent applying to the Western Lands, the failure of the First Respondent not to take a responsible approach, if not a cautionary approach, with respect to the Second Respondent's operations at the quarrying area, satisfies the Court that the First Respondent is properly a party.
Accordingly, it follows from all of the foregoing examination of this issue, that the Court has decided that the First Respondent is properly a party to these proceedings and shares in the responsibility for breaches of the EPA Act.

[177]

The alleged contravention of s 58(6) of the POEO Act

The Applicant Council submitted that the power of the EPA to vary an EPL under s 58(1) of the POEO Act was subject to the limitation imposed on that power by s 58(6). The Applicant Council argued that this was so because the elements of s 58(6) (limbs (a) and (b)) constituted jurisdictional facts, and that s 58(6) mandated a particular outcome as an essential pre-condition to the exercise of the power under s 58(1).
At par 33 of the Applicant Council's supplementary closing submissions, a succinct summary of what is meant by the term "jurisdictional fact" was set out. "In general terms, a 'jurisdictional fact' is a criterion, satisfaction of which either enlivens the power of the decision maker to exercise a discretion or mandates a particular outcome. (Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at [28]) Often, and in this case, the expression 'jurisdictional fact' is used to describe such a criterion where the satisfaction of the criterion falls to be objectively determined as a matter of fact by the Court, as distinct from being a matter the legislature has reserved for determination according to the opinion of the primary decision maker."
As such, the Applicant Council claimed that the determination of whether the criteria under s 58(6) existed between the lodgement of the licence variation application and relevant decision "falls to be objectively determined as a matter of fact by the Court, as distinct from being a matter the Legislature has reserved for determination according to the opinion of the primary decision maker". The Applicant Council submitted that the Court should find that the criteria comprising the jurisdictional facts were enlivened and, therefore, that the EPA was required to invite and consider public submissions. Its failure to do so allegedly made the purported licence variation invalid.
The Applicant Council submitted that the criteria under s 58(6) are jurisdictional facts because this is the preferable construction of s 58 in its context: citing, in relation to the requisite inquiry, Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 (Timbarra) at 63. The Applicant Council prefaced its approach to the statutory construction of s 58 by asserting that the decision of Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34; [2001] NSWLEC 55 (Donnelly) "stands as direct authority for the proposition that whether a licence variation will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence within the meaning of s 58(6)(a) of the [POEO Act] is a jurisdictional fact": citing [50] and following.
It was submitted that this decision is: clearly right, has stood for 16 years without being disapproved and involves a reasoned application of the relevant legal principles: citing City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28]; Timbarra; and Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3 at [23]-[34]. The Applicant Council submitted that the Court should, in accordance with the principle of comity, follow this decision unless it considers it to be clearly wrong.
The Applicant Council argued that the following characteristics of s 58(6) support its claim that the elements therein constitute jurisdictional facts. First, it was said to be significant that the language of s 58(6) is not expressed so as to turn on the opinion of the appropriate regulatory authority. The chapeau to the section only contains the word "If" and not words to the effect of "If, in the opinion of the appropriate regulatory authority" or "If the appropriate regulatory authority is satisfied that…". Although the Applicant Council recognised that this is not decisive (citing, eg, Coordinated Construction Company Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 at [44]), it submitted that it is an important indicator that the elements of s 58(6) are jurisdictional facts.
Secondly, the Applicant Council amplified this point by asserting that a number of other provisions within the same chapter of the POEO Act, in contradistinction to s 58(6), use the language of the appropriate regulatory authority's "opinion" or "satisfaction": citing ss 79(5)(c), 79(5)(f), 80(1B), 83(2)(e), 83(9)(f) and 83(9)(g). Similarly, the Applicant Council juxtaposed s 58(6) with that of s 101 which enlivens the power of the Minister to issue a prohibition notice when "the EPA is of the opinion that the emission or discharge of pollutants from (or within) any premises in which any activity is carried on is causing or is likely to cause harm to the environment".
Thirdly, the Applicant Council submitted that the relevant statutory context supports its interpretation of s 58(6). In particular, the Applicant Council said that the section should be understood in the context that the POEO Act gives effect to the legislature's intention to give the public the opportunity to participate in decision-making that authorises any significant increase in the environmental impact of activities subject to EPLs. The section is centrally important, the Applicant Council submitted, because it ensures that the decision-maker is able to consider public submissions in making a decision with potentially significant environmental consequences.
Furthermore, the Applicant Council asserted that the POEO Act regulatory regime recognises that the primary mechanism for assessing development is the EPA Act and that, therefore, the appropriate regulatory authority should consider what has and has not been assessed so it can address any unassessed impact through public consultation.
Finally, contrary to the Company Respondents' submissions, the Applicant Council said that the present case is analogous to Timbarra in that s 58(6) necessarily deals with a preliminary ancillary matter to the exercise of the relevant power: "it is dealing with a matter which is about obtaining public submissions where they haven't already been obtained".
The Applicant Council submitted that the proposed variation of EPL 1378, determined objectively and at the time when the licence variation was considered, would "authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence": quoting s 58(6)(a).
The Applicant Council said that the (proposed) variation would authorise a fourfold increase in the operational scale of the activities authorised and controlled by EPL 1378 - the scheduled activities of "extractive industries" and "crushing, grinding and separating works" - from a maximum of 500,000 tonnes of extractive material per annum prior to the variation, to a maximum of 2 million tonnes per annum after the variation. The Applicant Council submitted that any representations of the Applicant Council for the licence variation as to the projected scale of the operations could not change the fact that the variation would authorise a significantly larger maximum operational scale. In fact, the Applicant Council said that it was of some significance that the imposition of a condition restricting the operational scale was not contemplated.
It was argued by the Applicant Council that an increase of this magnitude would axiomatically result in: an increase in extractive activities such as blasting, rock hammering and drilling and the operation of heavy machinery; an increase in processing activities such as primary, secondary and tertiary crushing and screening and the operation of the pugmill and pre-coat plant; together with a consequential commensurate increase in the associated transportation movements from the Quarry.
Thus, in having regard to the POEO Act definitions of the word "environment" and the phrase "harm to the environment", the Applicant Council contended that the licence variation - at the time it was proposed and considered - would authorise a significant increase in the environmental impacts of the relevant scheduled activities. To the extent that it was relevant, the Applicant Council submitted that there was ample evidence post-dating the licence variation that confirmed that this had, in fact, occurred.
Similarly, the Applicant Council contended that the proposed variation of EPL 1378, determined objectively and at the time when the licence variation was considered, had "not, for any reason, been the subject of environmental assessment and public consultation under the [EPA Act]": citing s 58(6)(b).
The Applicant Council submitted that, at this time, the 1990 EIS was the only assessment of the environmental impacts of the relevant development. This environmental impact assessment evaluated the impacts of the development on the basis of an annual extraction rate of between 250,000 and 300,000 tonnes per annum and truck movements of 24 per day on average. Hence, according to the Applicant Council, the proposed variation had not been the subject of environmental impact assessment and public consultation under the EPA Act. Even if no development consent condition limiting the volume of material extracted was imposed on the development, the Applicant Council said that this could not mean that there had been an environmental impact assessment for unlimited extraction.
Given that the two necessary elements of s 58(6) were enlivened at the material time, the Applicant Council asserted that the EPA was obliged to invite and consider public submissions. The failure so to do, in light of the centrality of public participation in the statutory scheme, means that the purported licence variation was invalid and of no effect: citing Scurr v Brisbane City Council (1973) 133 CLR 242; [1973] HCA 39.

[178]

The alleged contravention of s 50 of the POEO Act

As at the material time, EPL 1378 was, on the Applicant Council's argument, "undoubtedly 'a licence that related to controlled development' within the meaning of s 50(2)" of the POEO Act. The Applicant Council submitted that it was a licence which related both to the extraction (and any processing) of material on the Western Lands and the processing of extracted materials of the Eastern Lands.
The Applicant Council asserted that the EPA contravened s 50 by purporting to grant a licence variation despite the prohibition on so doing in circumstances where development consent had not been granted for the controlled development (s 50(2)) and where no existing use rights applied (s 50(3)). Consequently, the Applicant Council concluded that, on a proper application of the Project Blue Sky principles, the purported variation was invalid: citing Weston Aluminium Pty Ltd v Environment Protection Authority at [36].
With respect to its s 50(2) point, the Applicant Council asserted that no development consent had been granted or was in force on the Eastern Lands for primary or secondary processing (although it was conceded that a development consent had been granted in 1999 for the erection and operation of the tertiary plant).
With respect to its s 50(3) point, the Applicant Council asserted that there were no applicable existing use rights within the defined meaning of s 106 of the EPA Act: which applied by dint of s 50(4) of the POEO Act. The Applicant Council denied that s 50(3) encompassed continuing use rights. It was said that this reflected the intention of the legislature to only contemplate s 50 applying to those unable to obtain consent because the relevant use is prohibited.
However, in any event, the Applicant Council submitted that the Company Respondents did not have any continuing use rights in relation to extraction on the Western Lands; the extant consent for the Western Lands only approved the extraction of 250,000 to 300,000 tonnes per annum (and certainly no more than the pre-variation EPL limit of 500,000 tonnes); and any continuing use rights relating to the Eastern Lands were limited to the production of 310,000 tonnes of saleable material (449,000 tonnes per annum of gross extraction).

[181]

The alleged contravention of s 58(6) of the POEO Act

The Company Respondents rejected the Applicant Council's claim that the elements of s 58(6) of the POEO Act constitute jurisdictional facts. Therefore, it was submitted that it was open to the EPA to form the view that it did not need to invite public submissions because the relevant development had already been subject to an environmental assessment and public consultation.
If, contrary to the position of the Company Respondents, the Court was to determine that the elements of s 58(6) do comprise jurisdictional facts, it was argued that the Applicant Council had not demonstrated that these elements were enlivened or that a breach of s 58(6) should result in invalidity.
The Company Respondents contended that a proper application of the relevant authorities concerning jurisdictional facts would result in the conclusion that the elements of s 58(6) are not jurisdictional facts which the Court must determine for itself: citing Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 at [38]-[39]; Terranora Group Management Pty Ltd v Director-General Office of Environment and Heritage (2013) 200 LGERA 1; [2013] NSWLEC 198 (Terranora) at [46]-[53]; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 ; Trives v Hornsby Shire Council at [45]-[49] and [52]-[55] and Roden v Bandora Holdings Pty Ltd [2016] NSWCA 220 at [43]-[45]. The Company Respondents advanced three primary arguments in support of its claim.
First, the Company Respondents submitted that the fact that the matters referred to in s 58(6) both (s 58(6)(a) in particular) involve a judgment on a matter of potentially significant disputation indicates against those matters constituting jurisdictional facts: citing QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [31]. With respect to the matter in s 58(6)(a), the Company Respondents said that the determination of this matter necessarily involves an evaluative judgment as to: the range of possible environmental impacts, whether these impacts are "significant", and whether these impacts "will" occur. With respect to the matter in s 58(6)(b), the Company Respondents said that the determination of this matter "requires an analysis of any previous assessment and consultation process and a comparison between that and what is proposed pursuant to the licence variation".
Secondly, the Company Respondents said that it was significant that the EPA - an expert body charged under the POEO Act with granting, varying and enforcing EPLs - was the entity responsible for determining the matters under s 58(6). The Company Respondents asserted that this indicates that it was intended to leave the determination of the s 58(6) matters to the EPA rather than the courts.
The Company Respondents submitted that it is consistent with the important statutory powers and functions of the EPA, as an "expert regulator", that the legislature intended to reserve the power to make licensing decisions to it: citing ss 4-6 and 45 of the Protection of the Environment Administration Act 1991 (POEA Act). Similarly, the Company Respondents contended that this legislative intention is reflected by the fact that the matter to be determined, "significant increase in the environmental impact", is not to be determined as a matter of probability but one of certainty. This indicates, according to the Company Respondents, that the determination was intended to be made by an expert regulator only.
Thirdly, the Company Respondents contended that the matters under s 58(6) are not "an essential preliminary (ie legally antecedent) to the decision-making process". Rather, the Company Respondents asserted that they are facts "to be adjudicated upon in the course of the decision-making process". That is to say, the determination of the s 58(6) matters "are prerequisites to the statutory obligation on the part of the [EPA] to invite and consider submissions, not the power to grant the licence application": citing Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [46].
Furthermore, the Company Respondents submitted that, if s 58(6) was interpreted to establish a jurisdictional fact, this would create significant uncertainty as to the status of licence variations that would be contrary to the public interest and the objects of the POEO Act.
The Company Respondents acknowledged that to make good its claim that the matters in s 58(6) are not jurisdictional facts it would need to convince the Court not to follow the decision of Donnelly at [70]. To this end, the Company Respondents submitted the following seven arguments as to why the Court should not follow Donnelly.
First, the Company Respondents contended that it was significant that the Court did not have the benefit of full argument on this issue: citing Donnelly at [49].
Secondly, the Company Respondents submitted that the law relating to jurisdictional fact has undergone significant changes since this decision: citing Trives v Hornsby Shire Council at [45]-[49] and [52]-[55] and Roden v Bandora Holdings Pty Ltd at [43]-[45].
Thirdly, the Company Respondents reiterated their argument that - contrary to the Court's apparent finding that the satisfaction of the s 58(6) matters was "preliminary or ancillary to" the exercise of the statutory power of variation (citing Donnelly at [54]-[56]) - the satisfaction of the s 58(6) matters does "not rise any higher than facts to be adjudicated upon in the course of the decision-making process". The Company Respondents submitted that the conditional requirement to invite and consider public submissions embodied by s 58(6) is directed at facilitating the decision-making process rather than being a matter made essential to it by the legislation: cf Timbarra.
Fourthly, the Company Respondents challenged the Court's reliance on the absence of reference in s 58(6) to words such as "opinion" or "satisfaction". The Company Respondents submitted that this is not a decisive consideration and that it is open to this Court to conclude that the legislature intended that those matters be left for the subjective determination of the appropriate regulatory authority: citing Woolworths Ltd v Pallas Newco Pty Ltd at [13] and [25] and Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 at [39]. At its highest, the Company Respondents submitted that this is "only one factor to be weighted in the balance of the assessment of the construction issue". In any event, the Company Respondents submitted that because the power under s 58 is exclusive to the EPA and discretionary, it is not unsurprising that such words were not used.
Fifthly, the Company Respondents challenged the Court's "great reliance on this Court's 'specialist and exclusive jurisdiction' to restrain or remedy breaches of the [POEO Act]": citing Donnelly at [67]-[69]. The Company Respondents submitted that, if anything, the consideration of the respective roles of the Land and Environment Court and EPA would lead to the conclusion that the legislative intention was for the latter to be the specialist repository of the decision as to whether public submissions are required. Moreover, the Company Respondents submitted that the fact that the Land and Environment Court has exclusive jurisdiction is irrelevant to the question of whether the s 58(6) matters are jurisdictional.
Sixthly, the Company Respondents said that Bignold J had reasoned that s 58(6)(b) was part of the jurisdictional fact. The Company Respondents submitted that this matter must be one reserved for the EPA on the information provided to it. If not, then the Company Respondents criticised how s 58(6) could have one element that is a jurisdictional fact and one that is not.
Seventhly, the Company Respondents criticised Bignold J for failing to "take into account the important matter that is referred to in all the jurisdictional fact cases that where an obligation clearly involves evaluative language, there is implicitly a likelihood that the legislature intended a person to conduct the evaluation". More specifically, the Company Respondents submitted that Bignold J failed to consider that the evaluative language of s 58(6) indicated that the evaluation was intended to be reserved for the EPA.
If, contrary to the position of the Company Respondents, the Court were to determine that the elements of s 58(6) did comprise jurisdictional facts, the Company Respondents argued that the Applicant Council had not demonstrated that these elements were enlivened.
In relation to the matter under s 58(6)(a), the Company Respondents denied that it was permissible for the Applicant Council to rely upon evidence of actual environmental impacts following the licence variation decision to make good its case that (looking prospectively from the time of that decision) the licence variation will authorise a significant increase in environmental impacts: citing Friends of Tumblebee Incorporated v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16 at [77]. The Company Respondents also submitted that it was of some significance to the Applicant Council's attack on the licence variation determination that there is no requirement under s 58 for the EPA to provide a statement of reasons.
In relation to the matter under s 58(6)(b), the Company Respondents submitted that the substance of the extraction increase sought in the licence variation application had previously been the subject of public participation and environmental assessment as part of the statutory process culminating in the grant of the 1991 Consent. The Company Respondents asserted that no limitation was imposed by the 1991 Consent on the volume of material that could be extracted.
Finally, in the event that the EPA did breach s 58(6), the Company Respondents submitted that the Applicant Council has failed to demonstrate why such a breach should lead to invalidity. The Company Respondents submitted that public participation is not necessarily an important aspect of licensing decision-making under the POEO Act (cf the EPA Act).

[182]

The alleged contravention of s 50(2) of the POEO Act

The Company Respondents contended that the Applicant Council has failed to establish that the EPA breached s 50 of the POEO Act. The Company Respondents submitted that the relevant "controlled activity" for the purposes of s 50 is development for the purpose of extractive industries. The Company Respondents reasoned that the Applicant Council's submissions impermissibly conflate what is the "controlled development" (that is, extractive industry) with the licence that "relates to controlled development" (which has a volumetric limit).
On this basis, the Company Respondents submitted that the "controlled activity" was not prohibited by s 50 both, by dint of s 50(3), because this activity had the benefit of existing use rights (for an extractive industry and/or the stockpiling and processing of extractive and associated material on the Eastern Lands) and, by dint of s 50(2), because this activity had the benefit of the 1991 Consent (which was said not to impose any extraction limit).
In response to a submission of the Applicant Council, the Company Respondents argued that the reference to "existing use" in s 50(3) does include continuing use rights under s 109 of the EPA Act. The Company Respondents asserted that "[i]t would be absurd to exempt only 'existing uses' (as defined) from the requirement for development consent before a licence may be granted or varied under s 50".
The Company Respondents submitted that a proper construction of Div 2 of Pt 4 of the EPA Act is that continuing use is a type of existing use. In support of this, the Company Respondents submitted that it is significant that the heading to the division encompassing the provision for continuing uses is "existing uses" (citing s 35 of the Interpretation Act 1987) and that s 50(3) does not explicitly refer to the s 106 definitions.
The Company Respondents also noted that s 50(1) only applies to development that cannot be carried out without development consent under the EPA Act. Therefore, the Company Respondents submitted that "[i]f the Company Respondents' argument based on s 109 is accepted, then it follows as a matter of logic that the relevant development can be carried out without development consent under the EPA Act, and hence is not 'controlled development'". Therefore, it was concluded that the Applicant Council's argument should be rejected.

[189]

The outcome

In reaching its conclusions on the issues raised with respect to EPL 1378, the Court has carefully analysed all the submissions from the parties together with the evidence upon which they respectively rely. For the reasons set out below, the Court has found the contentions pressed by the Applicant Council to be largely persuasive and so are to be preferred to those submitted on behalf of the Company Respondents. Accordingly, the Court has decided to grant the relief sought by the Council. However, as will be explained in the section of the judgment at [879]-[891] below addressing the consideration of discretionary factors in relation to the orders sought, the Court has determined that it is appropriate to stay the order for a period of three months.
Earlier in this judgment at [66]-[69] I have set out the relevant provisions of the POEO Act, in particular s 58 which is at the heart of the first issue regarding the variation of EPL 1378. In essence, the EPA, being the "appropriate regulatory authority" in this case, is to invite and consider public submissions before it varies the licence if: (a) the variation of a licence will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence, and (b) the proposed variation has not, for any reason, been the subject of environmental assessment and public consultation under the EPA Act. These are the two elements which the Applicant Council argued were jurisdictional facts.
The Court has concluded that the EPA was required to invite and consider submissions under s 58(6) of the POEO Act prior to exercising the power to vary EPL 1378 pursuant to s 58(1). The Court has formed the view that the questions to be determined pursuant to subss (a) and (b) of s 58(6) constitute jurisdictional facts. Those questions constitute factual matters that the Court ought, in a judicial review, determine. Contrary to the position contended by the Company Respondents, the matters set out at subss (a) and (b) are not exclusively within the remit of the EPA to determine.
In circumstances where the EPA did not invite and consider public submissions before it varied EPL 1378, its failure to do so, as the Applicant Council contended, has the consequence of rendering the variation of EPL 1378 invalid.

[190]

Elements of s 58(6) are jurisdictional facts

The decision of Bignold J in Donnelly is directly on point, his Honour holding that the question arising under s 58(6)(a) constituted a jurisdictional fact. I agree with the Applicant Council's submission that, in accordance with judicial comity, I should follow this decision. I do so after analysing his Honour's reasoning and finding myself in accord with his conclusions. The following passages are pertinent: "54. In my respectful opinion, it is clear from the statutory language that the relevant factual reference in the PEO Act s 58(6) is 'preliminary or ancillary to the exercise of the statutory power' within the Chief Justice's dictum. 55. Thus, upon a proper construction, it is clear that s 58(1) confers the power to vary a licence (s 58(2) relevantly extending that power) with subsections (3), (4) and (5) respectively providing (i) the circumstances in which the variation power may be exercised (ii) when it may be exercised; and (iii) how it may be exercised. 56. Section 58(6) in its statutory context exerts an altogether separate function, namely that of imposing a duty, if certain facts exist (being the relevant factual references contained in pars (a) and (b)), upon the regulatory authority to invite and to consider public submissions 'before it varies the licence'. This duty so formulated is clearly a matter that is 'preliminary or ancillary to' the exercise of the statutory power of variation that is conferred by s 58(1). 57. In my judgment, it is clear that the legislative intention is that where the factual reference is engaged in fact, the variation power is not to be exercised without the regulatory authority first inviting and then considering public submissions. This satisfies the 'essentiality' element identified in Chief Justice's judgment in Timbarra. 58. It is but a short and obvious step in the reasoning process, to also infer that the legislative intention is that the duty is enlivened where the requisite facts exist in fact, rather than where the regulatory authority is of the opinion, or believes, that they exist. (In this respect it is, of course, significant that the factual reference is not propounded by reference to the opinion held by the regulatory authority.) This satisfies the 'objectivity' element identified in the Chief Justice's judgment in Timbarra. … 67. In my respectful opinion, this discriminating analysis of the true nature of the jurisdiction that was invoked by the plaintiff in Enfield (challenging the validity of the grant of development consent) provides a particularly apt and illuminating appreciation of this Court's specialist and exclusive jurisdiction "to restrain or remedy a breach" (or apprehended breach) of planning or environmental laws that is conferred by the EP&A Act s 123; the PEO Act s 252 and s 253; and the NP&W Act, s 176A. (There are several other sources of comparable jurisdiction expressly conferred upon this Court in similar statutory language). 68. In my respectful opinion, when proceedings brought in this Court (such as the present proceedings) challenging the validity of administrative actions, are truly and rightly conceived to be claims 'to restrain or remedy a breach or threatened breach of relevant laws', the adjudication that is required of the Court, must invariably and inevitably be whether or not there has been established a relevant breach or threatened breach of the law, as alleged in the proceedings, and where objective facts are crucially or essentially involved in the alleged breach (such as in the present case) this Court obviously must determine for itself the existence or non-existence of such facts, on the basis of the available evidence. In such circumstances, the conclusion must invariably be that the facts are jurisdictional facts. 69. Indeed, it is the very creation, in the same statute, pursuant to which the impugned administrative action is taken, of specialist jurisdiction vested in the Court to restrain or remedy a 'breach' (or threatened breach) of the statute that is, in my opinion, a powerful legislative indication that it is intended that this Court must determine for itself, whether or not there has been a relevant breach of the statute, rather than to leave that question to the decision of the very administrative agency whose action (or inaction) is the basis for the allegation of breach of the statute . There is something fundamentally anomalous and unsatisfying in the view that the question of whether an administrative agency has relevantly breached the law, is to be answered according to the opinion held by that agency (subject albeit to the judicial review of that opinion). 70. For all of the foregoing reasons, I hold that the question whether the Licence Variation in the present case will relevantly 'authorise a significant increase in the environmental impact of the authorised activity' is a question concerning a jurisdictional fact which this Court must determine for itself, on the basis of all relevant evidence. It follows that in the present case it is not the Court's duty to judicially review the reasonableness of the decision of the Fifth Respondent on the question although, as will later be shown, evidence concerning that decision, and the decision itself, may be relevant to, and carry weight in, the Court's determination of the relevant question: see City of Enfield at p 154 - p 156 in the joint judgment of the Court and at p 158 - p 159 per Gaudron J in her separate judgment, which passages are recited hereafter."
The Applicant Council submitted the preferable construction is that ss 58(6)(a) and (b) are both jurisdictional facts, citing Timbarra at [63] as to the particular inquiry. Earlier at [717] and [718] above I have summarised the Applicant Council's submissions in which it set out the relevant legal principles extracted from the other authorities upon which it relies on this point, including City of Enfield v Development Assessment Commission at [28] and Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources at [23]-[34]. I find the analysis compelling. Despite the no fewer than seven grounds upon which the Company Respondents argued that the Court ought not follow Donnelly, I find no basis that would justify this course. Judicial comity demands that I either find the judgment plainly wrong, or the facts before me to be so significantly different that the circumstances of the earlier judgment can be clearly distinguished. Neither circumstance applies to the matter before me, accordingly, I shall follow Donnelly.
I agree with the Applicant Council that the language of s 58(6) is not expressed so as to turn on the opinion of the regulatory authority. Although the Court agrees that this is not decisive, it is nevertheless an important indicator as to whether the question in issue is a jurisdictional fact. I consider that it is instructive that other provisions within the same chapter of the POEO Act use the language of the regulatory authority's "opinion" or "satisfaction". A summary of those provisions, extracted from the Applicant Council's submissions, was set out earlier in this judgment at [720].

[191]

The Company Respondents' contentions on jurisdictional fact

Earlier in paragraph [739], the Court set out the authorities relied upon by the Company Respondents in their submission that the elements of s 58(6) are not jurisdictional facts. The Court has considered the cases relied upon, none of which propose any material variation from the general principles relating to jurisdictional fact. In Terranora at [46]-[53], Biscoe J set out a useful analysis of the principles, in particular at [48]: "It is a question of statutory construction whether a jurisdictional fact criterion is objective or subjective. If the criterion is objective, on judicial review the Court may determine the existence or non-existence of the fact on the evidence before the Court …A subjective criterion is one that is conditioned upon the formation of a state of mind by the decision-maker, for instance an opinion or state of satisfaction".
With, for instance, Terranora being a 2013 decision of this Court, it was pressed by the Company Respondents that I ought to determine whether s 58(6) is a jurisdictional fact with reference to the more recent authorities, this proposition being put in the context of Donnelly being decided some 12 years earlier. In the context of the issues in the case before me, I do not discern any material disagreement amongst the authorities, old or new. It will turn on a statutory construction of the provision in question. In this case, with the Donnelly decision, I have the considerable advantage of an exhaustive analysis of the jurisdictional fact point specifically with reference to its application to s 58(6). None of the other cases dealt with the POEO Act, let alone the specific section in issue before me, and the majority involved different legislation in very different contexts. It is true Terranora was an environmental law case, but it was focused on s 38(2) of the Native Vegetation Act 2003. Having reviewed all the case law placed before me, I see no reason to take a different course to that adopted by Bignold J.
The Company Respondents asserted that the fact that the matters referred to in s 58(6) both but s 58(6)(a) in particular, involve a judgment on a matter of potentially significant disputation indicates against those matters constituting jurisdictional facts: citing QBE Insurance (Australia) Ltd v Miller at [31]. However, reflecting on this assertion, the Court considers that in the context of a potential environmental impact case, the mere fact that a matter may potentially involve significant disputation could be indicative that the proposal warrants public notification. The threshold decision to invite and consider public submissions is not at a stage in the process of assessing the actual impact and deliberating on controls that might be imposed - that exercise comes later at the time when a decision is to be made whether or not the licence in question should be varied. At the threshold point, the proposition is a more basic one: whether to allow public submissions into the process. So, arguably, providing the two elements of s 58(6) are apparent on the "face" of an application, if the matter is plainly controversial, a reasonable response would be a virtually automatic one in favour of facilitating public input.
With respect to s 58(6)(a), the Company Respondents submitted that the determination of this matter necessarily involves an evaluative judgment as to the range of possible environmental impacts, whether these impacts are "significant", and whether these impacts "will" occur. This Court takes a contrary view: if, on the facts, it is plain to the "evaluator" that the proposed increase in production volume is so great (eg potentially four to six times greater than that examined in the 1990 EIS) compared to the prior permitted extractive crushing operation, then it is surely erroneous to characterise the exercise under s 58(6)(a) as an evaluative judgment. With a marginal or minimal expansion, the exercise could well be more evaluative, but in the circumstances of this case, the Court declines to agree. Specifically, in circumstances where the proposed increase is from an prior licensed volumetric operation of 500,000 tonnes to a potential 2 million tonnes, an increase ranging from six to eight times compared to the last publicly examined proposal (in the 1990 EIS), or four times compared to the last licence limit prior to the EPL variation application, it is, in the Court's opinion, implausible that any authority properly exercising its statutory power would not accept that such a variation would authorise a significant increase in environmental impact. If the first anticipated maximum of 300,000 tonnes at the Quarry required an EIS (and associated opportunity for public participation), why, the Court rhetorically asks, would a quantity six to eight times greater not, automatically, without an evaluative judgment, justify an acknowledgement that public submissions should be invited and considered?
It is necessary that the Court clarifies its understanding of what was the licensed production authorised by EPL 1378 prior to its variation in April 2007. In the Applicant Council's supplementary closing submissions at pars 2-29, a useful summary of the historical environmental licensing of the operations at the Quarry, commencing from the days of the sole Eastern Lands operations through to 2 April 2007 when the EPA issued the "Licence Variation Notice" in relation to EPL 1378 granting the application to increase the permissible scale of operation under the EPL (Exhibit R-1, pp 831-849). Prior to EPL 1378, there were no less than 14 licences issued under the Clean Air Act 1961, the first commencing in 1982, the last in relation to the year ended 1 January 2000. To place those licences in context, up until the end of 1993 they related to processing on the Eastern Lands as an ancillary activity associated with quarrying on those lands. From the commencement of operations on the Western Lands following the grant of the 1991 Consent, the licences still related to processing carried out on the Eastern Lands, but as intended ancillary operations (at least at the outset) in relation to the quarrying of rock being carried out on the Western Lands. (The ancillary nexus is as the Court has decided it on the evidence - see that section of the judgment determining Issue 8). There may conceivably have been an overlap of quarrying during 1992/1993 at the beginning of operations on the Western Lands and the final period of quarrying on the Eastern Lands, but that is immaterial to the issue now being addressed.
Accepting the Applicant Council's analysis, an operational limit of 500,000 tonnes per annum was consistently imposed from 1986 right through until the end of the old licensing regime in 2000, and that limit continued to apply from the grant of EPL 1378 until EPL 1378 was varied by the EPA on or about 2 April 2007. To the extent necessary, the Court has traversed the many documents contained within the evidence book which verify the historical analysis provided. The Court is satisfied that the Applicant Council's analysis was factually correct. It is in that context that the s 58(6) issues have been considered. Relevantly, at all times since before the 1990 EIS, and thereafter until the variation, the operative licensed production limit was 500,000 tonnes per annum. So the comparators for the purposes of s 58(6)(a) is that 500,000 tonnes per annum production limit with the 2 million tonnes per annum limit allowed by the 2007 EPL variation.
However, when one is considering the s 58(6)(b) question, that is, what had been the subject of environmental assessment and public consultation in the past, the Court considers it is not unreasonable for the starting comparison to be that which was examined in the 1990 EIS, being the lower production estimates of 250,000-300,000 tonnes. Hence at various points in this section of the Court's judgment, the Court refers to a four-fold increase in production, being a comparison of the prior licensed level of 500,000 tonnes to the varied licensed level of 2 million tonnes per annum. Concurrently though, the Court has referred to a perceived potential increase of six-to-eight-fold when focussing on the 1990 EIS, being a comparison of the 250,000-300,000 tonnes per annum production referred to in the 1990 EIS to the level authorised by the 2007 variation, of 2 million tonnes per annum. The Court considers that both comparisons are instructive and material. However, by considering what the public may have understood when they last were invited to make public submissions, that does not mean the Court misunderstands that the focus of s 58(6) must be on the proposed variation of the licence compared to the state that prevailed prior to variation, as that is what is to be compared: authorised activity level to varied authorised activity level.
Reverting to the s 58(2)(a) examination, as for the degree of certainty the EPA must have that impacts would occur, this is an instance where sense must surely prevail. The Court appreciates that the provision does contain the words: "will authorise a significant increase", but the degree of certainty required will depend upon the circumstances. As absolute certainty of an impact will only ever be confirmed after the event, there must always be a degree of prospectivity in any forward assessment. Where the margins of a proposed variation are minor, perhaps even arguable, then an evaluative judgment would conceivably have to be exercised by the EPA, but in the circumstances of an application for variation where "on the face" of the documentation (the variation application) there is proposed a demonstrably large increase, then the exercise is no longer an evaluative exercise of judgment, rather it should or would lead to an automatic responsible response. In the circumstances of this case, where upwards of a four-fold increase was being proposed from the pre-variation level (or a potentially eight-fold increase from the last instance of public examination of the activity as proposed in the 1990 DA and 1990 EIS), perhaps an administrative law expression is most apposite: "no reasonable authority in the position of the EPA" could not have recognised that impacts might significantly increase. If that reaction had been properly acknowledged by the EPA, then it was beholden upon it to invite and consider public submissions before it varied the licence.
The Court considers that the EPA's exercise of its function under s 58(6) should be expected to occur within the context of other relevant provisions of the statutory scheme within which the EPA operates. That same statutory context is additionally apposite to the Court when it is called upon to exercise its judgment on the jurisdictional facts.
Section 45 of the POEO Act sets out the matters to be taken into consideration in licensing functions. Amongst those licensing functions is the consideration and approval of applications to vary a licence. The provision states that: "In exercising its functions under this Chapter, the appropriate regulatory authority [here, the EPA] is required to take into consideration such of the following matters as are of relevance. … (b) the objectives of the EPA as referred to in section 6 of the Protection of the Environment Administration Act 1991 (POEA Act)". Section 6(1) of the POEA Act provides that the objectives of the EPA include: "(a) to protect, restore and enhance the quality of the environment in New South Wales, having regard to the need to maintain ecologically sustainable development". Section 6(2) then provides: (2) For the purposes of subsection (1)(a) ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs: (a) the precautionary principle - namely, that if there are threats of serious or irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation. In the application of the precautionary principle, public and private decisions should be guided by: (i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and (ii) an assessment of the risk-weighted consequences of various options.
In the context of the foregoing, when the EPA is exercising its functions under s 58 of the POEO Act with respect to the processing and consideration of an application to vary an EPL, it is clearly exercising a licensing function as encapsulated in s 45 of the POEO Act. Therefore the pathway from s 45 of the POEO Act, through to s 6 of the POEA Act, to s 6(2)(a) of that Act and so to the precautionary principle necessarily follows. Consequently, in the context of this case, with an application to vary a licence involving a four-fold increase on the volumetric production under the prior licensed level, it would stretch plausibility for the EPA not to invite public input. In that context, for the Company Respondents to argue that there must be "certainty" to the extent of being actually certain that the variation of the licence "will" authorise a significant increase in the environmental impact of the licensed activity, that proposition seems to be somewhat incongruous with the precautionary approach which the legislative pathway explored above would seem to encourage.
With respect to s 58(6)(b), the Company Respondents said that the determination of this matter "requires an analysis of any previous assessment and consultation process and a comparison between that and what is proposed pursuant to the licence variation". As with s 58(6)(a), subs (b) demands a sensible interpretation. With a variation of the licence proposing up to a four-fold volumetric increase over the prior licence limit, there is no merit in a proposition that suggests that the 1990 EIS examining a then proposed volumetric quantity of between a sixth to an eighth of that approved in the 2007 EPL 1378 variation, could be taken to be a sufficient environmental assessment and public consultation to obviate the need to invite and consider public submissions in relation to the proposed variation of EPL 1378. The contrast between that which had been assessed in the past and that proposed in the variation was clearly so marked, there would be no evaluative exercise involved. It was a fact: no assessment had been carried out of the 2007 proposal which became approved in the variation of EPL 1378.
The Company Respondents also submitted that it was indicative that, because the EPA was responsible under the POEO Act for determining the matters at s 58(6) of that Act, it was intended by the legislature to leave the determination of s 58(6) to the EPA and not to the courts. This was said to be consistent with the important statutory powers and functions of the EPA, as an "expert regulator", that the legislature intended to reserve the power to make licensing decisions to it: citing ss 4-6 and 45 of the POEA Act.
The Company Respondents also submitted that any "significant increase in the environmental impact", is not to be determined as a matter of probability but one of certainty. This indicates, according to the Company Respondents, that the determination was intended to be made by an expert regulator only. The Court rejects the Company Respondents submissions, summarised at [742], relying in part on what it has already said earlier in [782], but also on the basis of the Applicant Council's submission in response to this point, summarised above at [724]-[727], which the Court accepts.
As to the propositions put by the Company Respondents and summarised at [743] above, the Court rejects the nuance in this submission of the Company Respondents. Indisputably in the Court's view, if the elements of s 58(6), the jurisdictional fact questions, are met then it is a pre-condition to the grant of licence variation that public submissions be invited and considered. The closing words of the provision are clear: "[b]efore it varies the licence". The Court finds that, where the circumstances at s 58(6)(a) and (b) are in existence, the public consultation process is a legal antecedent to the exercise of the licence variation power. That is, if the elements at s 58(6)(a) and (b) are met, the appropriate regulatory authority cannot exercise the variation power unless it invites and considers public submissions.
The Company Respondents submitted that if s 58(6) was interpreted to establish a jurisdictional fact, this would create significant uncertainty as to the status of licence variations and that would be contrary to the public interest and the objects of the POEO Act. The Court rejects that there would arise any unacceptable uncertainty. In circumstances such as in this case where the differential between that previously licensed and that proposed to be approved via the variation, there is no evaluative judgment brought to bear, rather there is a simple administrative response to a circumstance that is "plain as a pikestaff". As for this interpretation being contrary to the public interest, the clear underlying intent of s 58(6) is an acknowledgement of the importance of public submissions to the integrity of the licensing regime. That interpretation is reinforced by s 45, which, amongst other matters, requires the EPA to take into consideration (at subs (l)): 45 Matters to be taken into consideration in licensing functions In exercising its functions under this Chapter, the appropriate regulatory authority is required to take into consideration such of the following matters as are of relevance: … (l) in connection with a licence application: (i) any public submission in relation to the licence application received by the appropriate authority under this Act, and (ii) any public submission that has been made under the [EPA Act], in connection with the activity to which the licence application relates, and that has been received by the appropriate regulatory authority, …
Further, with respect to the Company Respondents' proposition that an interpretation of s 58(6) as giving rise to jurisdictional fact, might be contrary to the objects of the POEO Act, the Court rejects that suggestion. The Court cannot identify any reason why its interpretation of s 58(6) does not accord with all the objects of the POEO Act as set out in s 3 and in particular, acknowledging subs (b) "to provide increased opportunities for public involvement and participation in environment protection". Perhaps it might be observed that with respect to s 3(f) "to improve the efficiency of administration of the environment protection legislation", had all the Respondents acted properly in accordance with the legislation when the variation to EPL 1378 was lodged for consideration, then much of the energy and expense involved in the present litigation would surely have been avoided. That would have been more consistent with efficient administration of the legislation.
As mentioned earlier, the Company Respondents raised seven arguments as to why the Court should not follow Donnelly. The first argument was that Bignold J did not have the benefit of full argument on the issue, a matter noted at [49] in that judgment. This Court's analysis of Donnelly leaves no doubt that Bignold J was not disadvantaged by this, as his Honour's painstaking and exhaustive analysis of the statutory provisions and many relevant authorities extending over many pages of the judgment amply demonstrates. Nor is the Court impressed by the second argument that more recent judgments such as Trives v Hornsby Shire Council at [45]-[49] and [52]-[55] and Roden v Bandora Holdings Pty Ltd at [43]-[45] are more instructive when examining the question of jurisdictional fact. Neither case updates the underlying principles, which remain intact, and neither case is as precisely on point as is Donnelly.
The third argument that, contrary to the Court's finding that the satisfaction of the s 58(6) matters was "preliminary or ancillary to" the exercise of the statutory power of variation, the satisfaction of the s 58(6) matters does "not rise any higher than facts to be adjudicated upon in the course of the decision-making process". The Company Respondents submitted that the conditional requirement to invite and consider public submissions embodied by s 58(6) is directed at facilitating the decision-making process rather than being a matter made essential to it by the legislation: cf Timbarra. This argument underplays the critical importance, in this Court's opinion, of the public participatory process assisting the decision-making process. In circumstances where a significant increase in environmental impact is in prospect, the EPA's function must surely be aided by the public consultation process. Further, as found earlier, the objects of the POEO Act clearly reinforce the importance of such input.
In this regard, the Court rejects the Company Respondents' related, and somewhat extraordinary, submission to the effect that even if breach of s 58(6) is established, the Applicant Council had failed to demonstrate why that failure (to invite and consider public submissions) should lead to invalidity because public participation is not necessarily an important aspect of licensing decision-making under the POEO Act (cf the EPA Act). In rejecting that assertion, finding it to be without merit, the Court will not reiterate what it has already stressed in more detail earlier, that public input into the licensing process is a key component of the statutory scheme reinforced by the objects of the legislation.
In the context of the broader discussion above regarding the legislative framework, and of the approach to be adopted as led by the judicial authorities reviewed, the Court does not find the Company Respondents' remaining four arguments (as summarised at [750]-[756] above) persuasive. I have already examined the significance of the absence of words such as "opinion" or "satisfaction" in s 58(6), in contrast to other sections in the POEO Act, and find the Applicant Council's submissions preferable. I find Bignold J's reference to this Court's "specialist and exclusive jurisdiction" to restrain or remedy breaches of the POEO Act perfectly appropriate, and find the Company Respondents' critical inference of his Honour's "great reliance", to be quite misplaced, given the range and strength of the other arguments in that judgment. Further, as Kirby J in Hillpalm emphasised at [71]-[73], the role of this expert specialist Court ought not be underplayed. Again, the Company Respondents' submissions fail to convince me to take a divergent course from Donnelly.

[194]

No other environmental assessment of the impacts of the variation had been conducted

The Court agrees with the Applicant Council that, in terms of s 58(6)(b), the proposed variation had not, on any basis, been the subject of environmental assessment and public consultation under the EPA Act. It is to be stressed that it is the variation in environmental impact that is to be assessed under s 58(6)(b), not simply any other aspect of the relevant operation. The Company Respondents' suggestion that the original proposed quarry project had been assessed as part of the process leading up to the 1991 Consent, and that that assessment meant the pre-condition under s 58(6)(b) could not be met, is a proposition in the Court's opinion totally lacking merit.
At the time the application to vary EPL 1378 was lodged, the 1990 EIS was the only assessment of the environmental impacts of the development on the Western Lands. It follows that the 1990 EIS could not possibly be considered a relevant environmental assessment in terms of a variation application some 17 years later. Even if it were argued (which it was not) that because the 1990 geological reports stated that the reserves of andesite were considerably greater than that proposed to be extracted pursuant to the 1991 Consent, the reserves thereby being "flagged" for future extraction, it would be baseless to suggest that the potential extraction and processing of the resource then proposed to be left in the ground had been assessed. Elsewhere in this judgment the Court has found that the project proposed by the 1990 DA and 1990 EIS and approved in the 1991 Consent, was for a near 10 year project extracting between 250,000-300,000 tonnes per annum (with a tantamount guarantee that the project was so limited by virtue of an assurance that the extraction would be limited to the 5 ha area and 40 m RL depth). The 1990 EIS could not conceivably have looked at the production volume proposed by the 2007 application to vary EPL 1378 all of 17 years after the 1990 EIS assessment, which although stated to have a production rate less than that approved under the licence, nevertheless allowed up to 2 million tonnes to be processed per annum. Therefore, the Applicant Council submitted, the EPA was obliged by s 58(6) to invite and consider public submissions. The Court agrees. The failure so to do, in light of the centrality of public participation in the statutory scheme, means that the purported licence variation was invalid and of no effect.
The Applicant Council usefully cited Scurr v Brisbane City Council to highlight the importance of public submissions in such a statutory scheme. In Scurr v Brisbane City Council the High Court found that central to the process providing for the consideration of a development application was the necessity for proper and accurate public notification of the proposal. If a decision to approve the development followed deficient notification, then the decision should be struck down. At [257] Stephen J, with whom the other four judges concurred, highlighted the benefit of a properly executed public participation process: "The fact that once an appeal is instituted by an objector the Court assumes from the council the task, initially the council's, of considering an application and the objections to it raises a strong inference that the Court should, in undertaking that task, be directly concerned to assure itself that all the requirements of the giving of public notice in due form have been complied with. Their non-observance will effectively prejudice the Court's proper consideration of the matter in a number of respects; first, it will result in it having before it a council proposal to which it would no doubt ordinarily wish to pay some regard as to the expression of the views of the responsible planning authority but which it will know has been arrived at without necessarily having benefited from a proper presentation to the council of objectors' views; this is an aspect to which I have already referred. Secondly, it will know that there may be persons who might have objected but who have, by reason of defective public notice, been deprived of the opportunity of qualifying as objectors. Thirdly, it will be aware of the fact that the objections which have been lodged come in response to a defective public notice of the application and may accordingly be misconceived in their grounds or in the facts and circumstances set out in support of those grounds."
It follows from the above analysis in [800] that the Court rejects the related proposition from the Company Respondents that there was no limitation imposed by the 1991 Consent on the volume of material that could be extracted, therefore, inferentially, any increase in production including that approved by the April 2007 EPL variation fell within a production level already approved and assessed via the 1990 EIS. Elsewhere in this judgment the Court has already explained that by virtue of the inextricable link of conceivable or probable production to the limited 5 ha extraction area within Lot 5, with extraction limited to a depth of 40 m RL, there was never an unlimited extraction entitlement as a consequence of the grant of the 1991 Consent. The limited extraction area approved, horizontally and vertically, could never become the andesite "Magic Pudding".

[196]

In varying the EPL, did the EPA contravene s 50 of the POEO Act?

The final group of submissions to be considered with respect to Issue 10 are those focussed on the question of whether the EPL related to controlled development within the meaning of s 50(2) of the POEO Act (ie development that cannot be carried out without development consent under the EPA Act). In short, did the activity the subject of the EPL licence variation have the requisite development consent? In the context of EPL 1378 , and its variation, being in relation to processing of extracted andesite, the Applicant Council submitted that there was no consent in place for primary or secondary processing (although it was noted that there was in place a 1999 development consent for erection and operation of a tertiary processing plant). The Court notes that this tertiary processing plant was limited to a production rate of 449,000 tonnes, somewhat short of the 2 million tonnes production rate allowed by the April 2007 variation of EPL 1378.
As explained earlier, the Company Respondents submitted that the relevant "controlled activity" for the purposes of s 50 is development for the purpose of "extractive industries". They reasoned that the Applicant Council's submissions impermissibly conflate what is the "'controlled development" (that is, extractive industry) with the licence that "relates to controlled development" (which has a volumetric limit). The Company Respondents submitted that the "controlled activity" was not prohibited under s 50(2), because this activity had the benefit of the 1991 Consent (which was said not to impose any extraction limit).
Referring to the implications of an existing use privilege, the Company Respondents submitted that the "controlled activity" was not prohibited by s 50 by virtue of s 50(3), because this activity had the benefit of existing use rights (for an extractive industry and/or the stockpiling and processing of extractive and associated material on the Eastern Lands). It was also argued that the reference to "existing use" in s 50(3) does include continuing use rights under s 109 of the EPA Act. The Company Respondents asserted that "[i]t would be absurd to exempt only "existing uses" (as defined) from the requirement for development consent before a licence may be granted or varied under s 50". They argued that a proper construction of Div 2 of Pt 4 of the EPA Act is that continuing use is a type of existing use. In support of this, the Company Respondents submitted that it is significant that the heading to the division encompassing the provision for continuing uses is "existing uses" (citing s 35 of the Interpretation Act 1987) and that s 50(3) does not explicitly refer to the s 106 definitions.
In this judgment the Court has already exhaustively analysed the issues that "inform" the determination of the s 50 "controlled development" argument with respect to the EPL variation. The Company Respondents' case with respect to s 50 depends upon there being permitted, continuing and/or existing uses on either the Western Lands and the Eastern Lands. As the Court has found that the operations are inextricably linked, unauthorised development on the Western Lands taints operations on the Eastern Lands. The Court's determination of Issue 2 finds that extraction activity is impermissibly occurring in areas beyond that allowed by the 1991 Consent. The Court's determination of Issue 3 finds that the quarrying operations being conducted on the Western Lands no longer accords with the use and development that was allowed by the 1991 Consent, in that what is now occurring can no longer be characterised as a railway ballast quarry. The Court's determination of Issue 8 examined the interrelationship between the Eastern Lands and the Western Lands, reaching the conclusion that largely by reason of the cessation of lawful development and operations on the Western Lands and the earlier cessation of stone extraction on the Eastern Lands, the necessity for rock processing on the Eastern Lands to fall within that of an allowable ancillary operation fell away. Accordingly, the Court concluded that the processing use of the Eastern Lands was largely unlawful. The only exception on the Eastern Lands to the Court's conclusion is obviously that which relates to the stand-alone tertiary processor with its separate development consent, noting that it was approved with a limited production of 449,000 tonnes per annum.
In the context of the decisions already reached by the Court as summarised in the previous paragraph, it follows that the Court is in agreement with propositions summarised at pars 71-81 in the Applicant Council's supplementary closing submissions, as follows, which it adopts as correct. "71. The legislative scheme is the subject of consideration by the Court of Appeal in Alcoa Australia Rolled Products Pty Lt v Weston Aluminium Pty Ltd; Weston Aluminium Pty Ltd v Environment Protection Authority and Anor. (2006) 148 LGERA 439 72. As at April 2007, EPL 1378 was undoubtedly 'a licence that related to controlled development' within the meaning of s 50(2) of the PEO Act. Importantly, it was a licence which related both to the extraction of material on the western lands and to the processing of the extractive materials on the eastern lands (as well as to any processing of the materials on the western lands). 73. On 2 April 2007, the third respondent varied EPL 1378 in circumstances where no development consent had been granted or was in force on eastern lands for the primary or secondary processing. A consent had been granted in 1999, but only in relation to the erection and operation of the tertiary plant. 74. On its plain terms, s 50(2) prohibited the third respondent from varying EPL 1378 unless development consent had been granted for the controlled development on the eastern lands, subject only to the exception set out in s 50(3) of the Act in relation to existing uses. 75. It is important to recognise that the phrase 'existing use' was defined in s 50(4) of the PEO Act by the adoption of the definition of 'existing use' in Division 10 of Part 4 of the EPA Act. That definition was (and still is) set out in s 106 of the EPA Act. That definition requires as a defining component that the subject development being lawfully carried out prior to the coming into force of the subject planning instrument was development which is prohibited under the relevant environmental planning instrument. 76. That is not the respondent's case. They claim a 'continuing use' right within the meaning of s 109 of the EPA Act, not an 'existing use' right within the meaning of s 106 of the EPA Act, and thus not an 'existing use' as defined for the purposes of s 50 of the PEO Act. 77. The exception in s 50(3) of the PEO Act has no application if, as the respondents contend, the development being carried out on the eastern lands in April 2007 were permissible with consent under the Dungog LEP 2006. In other words, the exception in s 50(3) of the PEO Act as then in force related to 'existing uses' as defined in s 106 of the EPA Act, but did not relate to any 'continuing use' within the meaning of s 109 of the EPA Act. Presumably that was because a consent could be obtained for any development that was said to be a 'continuing use', whereas it could not be obtained for an 'existing use', because such a use was prohibited. 78. As there was neither a development consent in force permitting primary or secondary processing on the eastern lands, nor was such development the subject of any existing use right, the third respondent issued the variation in contravention of the prohibition under s 50(2) of the PEO Act. 79. Alternatively, even if it may be said that the exception in s 50(3) of the PEO Act applied at the relevant time to continuing use rights as well as existing use rights: The first and second respondents did not have any continuing use rights in relation to extraction on the western lands. The only consent which applied to the western lands was the 1991 Consent and, for the reasons already advanced, it approved the extraction of only about 250,000 to 300,000 tonnes per annum and certainly nothing in excess of the operational limit imposed by EPL 1378 before it was amended, namely 500,000 tonnes per annum. In so far as the first and second respondents enjoyed any continuing use rights in relation to the eastern lands, such rights were limited to the production of 310,000 tonnes of saleable material, equating with 449,000 tonnes per annum of gross extraction. 80. The 2007 licence variation was thus granted in contravention of s 50(2) in any event. 81. On a proper application of the Project Blue Sky principles, the contravention of the mandamus in s 50(2) has the consequence that the purported variation was invalid. Weston Aluminium Pty Ltd v Environment Protection Agency; Weston Aluminium v Alcoa Australia Rolled Products Pty Ltd (2007) 82 ALJR 74 per Gleeson CJ, Gummow, Hayne, Heydon , and Crennan JJ at [36]."
The final issue to address with respect to Issue 10 is that of the exercise of discretion which both parties addressed in submissions. Ought the Court exercise judicial discretion in declaring the variation of EPL 1378 invalid? The Court has had regard to the submissions of the Applicant Council, summarised at [736] above and the submissions of the Company Respondents, summarised at [762]-[763] above.
To recap, on the one hand the Applicant Council argued that the effect of the licence variation has been to deny members of the public their right to participate in the assessment process, and that this consideration far outweighs any countervailing consideration concerning delay in seeking a declaration. On the other hand, the Company Respondents submitted that the variation of EPL 1378 ought not be declared invalid due to the unexplained eight year delay in the Applicant Council bringing its judicial review challenge seeking redress. As to delay, the Applicant Council asserted that this should be properly understood in the context of the ongoing representations made by the State rail entities over a period of years that they would regularise operations by making a SSD Application, which, it was said, ultimately the rail entities never actually made. Seen in context, the delay on the part of the Applicant Council in bringing this claim is reasonably attributable to those representations and its attempt to seek redress by other means.
In the course of the hearing and then in the preparation of this judgment the Court has reviewed the many hundreds of documents placed into evidence via the evidence book. The Court has concluded that over an extended period the Applicant Council has had many ongoing concerns regarding the operations at the Quarry. It is apparent to the Court that the Council has endeavoured to take a range of steps to seek a satisfactory resolution of issues. There has been much correspondence addressing concerns and responses giving assurances of rectification. There were earlier proceedings commenced in this Court, which were intended to address related concerns, but were withdrawn, apparently in the expectation that the issues could be resolved by negotiation. It is apparent that there has been little abatement of the many concerns raised previously, which have finally come before this Court again in these proceedings. However, there is now a SSD Application before the relevant authorities. In the light of this SSD Application, the Court has decided to make the declarations and orders sought by the Applicant Council in relation to the purported variation of EPL 1378, but to stay the operation of the order pending a resolution of the SSD Application process. The declaration which the Court will make will "inform" the SSD Application process of a relevant context within which the SSD Application should be considered.

[197]

The Company Respondents' claim on discretion

The Company Respondents' claim that the Court should decline, under s 124 of the EPA Act, to grant relief to the Applicant Council rests on four bases: the alleged delay of the Applicant Council; the economic impacts of relief; the minimal impacts of the development on residents; and the proposed IEMP. Ultimately, the Company Respondents submitted that the Court should, if it finds against the Company Respondents, implement the Company Respondents' proposed IEMP "as an interim or stop-gap measure enabling the continuation of quarrying operations at a lesser scale, pending the outcome of the [SSD Application]".
The Company Respondents prefaced their submissions by identifying the relevant principles as being that in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 and Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. The Company Respondents also stated that their claim must be considered in the context of the nature of the breach being considered. Thus, it was said that the Court should "evaluate the impacts of each individual breach in order to mould appropriate relief".
The Company Respondents also submitted that it is of some significance that the Applicant Council has not sought in the Amended Summons to prohibit the Company Respondents from continuing development on that part of the Eastern Lands formerly comprising Lot 2 DP 524511 but, rather, has sought an order (according to the Company Respondents) limiting the ambit of the extant continuing use rights (T1,165-1,166). Similarly, the Company Respondents suggested that the Applicant Council also had conceded that some development could continue on Lots 5 and 6.
In fact, the Company Respondents submitted that the Court could make a modified declaration to that sought by the Applicant Council to the effect that the lawful continuing use development on Lot 1 DP 1006375 is that of a size and intensity (potentially referring to a volumetric limit of output) that existed at 1 December 2012 (T1,166-1,167).

[199]

The Applicant Council's conduct

The Company Respondents contended that the Applicant Council delayed, without any effective explanation, taking action to restrain the relevant breaches and acquiesced to the relevant conduct. Consequently, the Company Respondents submitted that they have suffered prejudice. In those circumstances, it was said that the Court should refuse relief: citing Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38 at [109].
First, the Company Respondents contended that the proposed orders sought by the Applicant Council are inconsistent with numerous actions it has taken. The Company Respondents said that the Applicant Council has: "resolved to accept that the Quarry enjoys much higher production rates, without raising questions about the mode of transport (Exhibit R-1, p 656); demanded and taken royalties for road maintenance (Exhibit R-1, p 2,322); commenced and then discontinued previous litigation alleging similar breaches (Exhibit 12 at [7] and [13]); and has been one of the Quarry's principal road haulage customers (Exhibit R-1, p 2,322), thereby contributing to the very impacts it says are unlawful and should be restrained in this litigation".
Secondly, the Company Respondents submitted that, despite many opportunities, the Applicant Council has failed to establish its claims in previous litigation, failed to persuade the Environment Protection Authority of the strength of its licence variation case and has knowingly participated in and profited from the relevant allegedly unlawful activities.
Thirdly, the Company Respondents argued that the Applicant Council has been aware, or ought to have been aware, of most of the issues raised in these proceedings for many years without taking enforcement action (and, in some cases, acquiescing in the alleged unlawful conduct) until 2009. For example, the Applicant Council was provided with information as to the production levels and road transportation intensity between 1997 and 2005.
Fourthly, the Company Respondents said that the terms of the settlement of the proceedings against RailCorp (a successor to the SRA) and the Second Respondent (commenced by the Applicant Council in 2009) entitled any purchaser to assume that the Applicant Council would be prepared to permit the continued operation of the Quarry, using the existing equipment and facilities, at the agreed level of production without constraint as to the modes of product export.
Fifthly, the Company Respondents contended that, in contrast to the Applicant Council's alleged inaction, the Quarry operators have taken action to reduce noise complaints associated with the Quarry which they said was "largely brought about by [the Applicant Council's] poor maintenance of local roads": citing the affidavit of Mr Tumney dated 26 July 2016 at pars 115-118.
Sixthly, the Company Respondents contended that the Applicant Council has been a long-time customer of the Quarry and has benefited from payments for relevant road maintenance and repair works.
Finally, the Company Respondents said that they "did not enter into the decision to purchase the Quarry at their own risk, with knowledge of the alleged breaches". Moreover, the Company Respondents asserted that they had no ability to verify information relating to the history of the use of the relevant lands because RailCorp refused to disclose that information.

[203]

The Applicant Council's claim on discretion

The Applicant Council's argument on discretion is premised on the claim that the Company Respondents bear the persuasive onus of demonstrating that the Court should not grant the relief sought relating to any proven breach. The Applicant Council submitted that the presumption of the Court should be that relief is granted for a contravention of the planning laws occasioned by the carrying out of major development. From this basis, the Applicant Council asserted that the Company Respondents failed to demonstrate that the Court should decline to grant the relief sought or adjourn the proceedings until the determination of a pending SSD Application.
The Applicant Council prefaced its submission with respect to discretion by identifying the relevant principles as being those set out in ACR Trading Pty Ltd v Fat-Sel Pty Ltd and Warringah Shire Council v Sedevcic. In applying these principles, the Applicant Council said that the Court should have regard to the fact that these proceedings have been commenced by a local council: citing Warringah Shire Council v Sedevcic at 340D. The Applicant Council also said that it was relevant that the proceedings were commenced in response to a "dramatic increase in community complaints and submissions" in about March 2014 which coincided with a substantial increase in road transportation of quarry products along public roads.
The Applicant Council challenged the two bases upon which the Company Respondents were said to have advanced their claim on the issue of discretion.
First, the Applicant Council criticised the Company Respondents' suggestion that the Court's discretion should be exercised because the relevant breaches have been carried on for up to 25 years without the Applicant Council taking effective action. It was submitted that it would be contrary to any notion of fairness to prevent a small rural council - in its capacity as a guardian of public rights - from seeking to enforce the law, with respect to serious alleged breaches of law, on the basis that it has not taken action at some earlier point. In any event, the Applicant Council asserted that the relevant facts demonstrate that it did not sit on its hands at any point. In fact, given that the impacts are ongoing, the Applicant Council suggested that there has been no delay at all in bringing these proceedings.
In support of this claim, the Applicant Council referred to a number of events which occurred in three periods of time: first, the period between the granting of the 1991 Consent and a commercial arrangement between the SRA and Metromix Pty Ltd in 1998; second, the period between this arrangement being entered into and a commercial agreement between RailCorp and the Second Respondent in 2005; and third, the period between that 2005 agreement and the present.
With respect to the first period of time, the Applicant Council said that this period can effectively be ignored because there is "no evidence to suggest that the Council had any reason to take any action in relation to the operation of the quarry during that period". Yet, the Applicant Council did draw attention to its action in March to April of 1995 to secure from the SRA a commitment to comply with the conditions of consent following a concern arising about excessive truck movements (citing Exhibit F).
With respect to the second period of time, the Applicant Council noted its resolution of 18 May 1999 in which it decided not to take any enforcement action against the relevant use of land providing that the production of the Quarry did not exceed 449,000 tonnes (which was said to reflect the Applicant Council's acceptance of RSA's detailed existing use claim). Following this, the Applicant Council granted development consent to the installation of a tertiary plant. The Applicant Council submitted that there is no evidence of the Applicant Council being concerned of any unlawfulness from this point until 2004. The Applicant Council said that it was important that there had been no significant quarrying on Lot 6 until the latter half of 2004 (citing the oral evidence of Mr Walker: T 670).
With respect to the third period, the Applicant Council relied upon the following evidence, inter alia, as demonstrating that it had not "sat on its hands" in relation to suspected contraventions of law: the Applicant Council raised concerns with RailCorp as to the nature and scale of the development from at least February 2006 (citing Exhibit Q, p 97); the Applicant Council sought assistance from the State government to resolve concerns that it had with the development (Exhibit Q, p 100); the Applicant Council was informed by RailCorp that it would lodge a major project application under the EPA Act from early 2005 through to May 2009; the Applicant Council commenced civil enforcement proceedings against RailCorp in mid to late 2009; and the Applicant Council discontinued proceedings in light of an impending sale of the quarry assets by RailCorp and commitment by RailCorp to limit quarry production levels to 550,000 tonnes per annum until the settlement date.
The Applicant Council also rejected the Company Respondents' contention that the above mentioned settlement would lead any purchaser of the Quarry to assume that the Applicant Council would allow the purchaser to continue operating the Quarry in accordance with the production limit and operational scale delineated in the agreement between RailCorp and the Applicant Council.
Relevantly, the Applicant Council submitted that: there is no evidence to support this claim; the First Respondent did not purchase the Quarry as a going concern; and the First Respondent knew that there were planning approval risks relating to its purchase of RailCorp's quarry assets and leases over the relevant lands.
In the period between the Company Respondents taking over control of the relevant lands and the commencement of these proceedings in March 2015, the Applicant Council submitted that there was no relevant delay in bringing the proceedings or any acquiescence.
The Applicant Council alleged that the Company Respondents, aware of the legal issues, "decided to go ahead and to ramp up production without seeking any further consent and fully aware that it could blow up into a full scale dispute".
In these circumstances, the Applicant Council denied that the factor of delay or the issue of laches is material to the Court's exercise of discretion. In this respect, the Applicant Council relied upon the authorities of Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 at 692 and Minister for Immigration and Ethnic Affairs v Kurtovic at 207-208.
In respect of EPL 1378, the Applicant Council conceded that there was real delay in bringing the judicial review claim after it was apprised of the decision to vary EPL 1378 in 2009. However, the Applicant Council submitted that its focus in this period was to control the level of production by addressing the planning law issues rather than by challenging the legality of EPL 1378. Thus, it was said to be understandable that the Applicant Council did not take any action in relation to EPL 1378 until the production significantly increased in more recent years.
Secondly, the Applicant Council criticised the Company Respondents' claim that the Court should exercise its discretion because there have been few, if any, adverse environmental impacts. The primary argument of the Applicant Council was that the Company Respondents have failed to provide evidence to make good their claim. The Applicant Council argued that the Company Respondents' claim must be understood in the context that the relevant uses of the land comprise a major undertaking (as recognised under the legal regime) with potentially significant environmental impacts.
The Applicant Council asserted that there is cogent evidence before the Court that the alleged breaches of law continue to result in material adverse impacts. In particular, the Applicant Council referred to both the evidence from members of the Martins Creek and Paterson communities as to the significant impact of quarry operations on their day-to-day lives and pertinent statements in the Second Respondent's EIS accompanying its pending SSD Application.
Finally, in relation to the Company Respondents' invitation to the Court to decline to grant relief whilst the SSD Application is pending, the Applicant Council submitted that there is no certainty as to: the likely timeframe of this process (especially given the potential for appeals); whether the Company Respondents will persist with the application; or the likelihood of approval being granted.
If development consent was to be refused, the Applicant Council said that this dispute would return to square one. In a similar vein, the Applicant Council rejected the Company Respondents' proposed IEMP and said that it was beset with uncertainties and difficulties. For example, the Applicant Council submitted that the language of "in any 12 month period" in condition 1 is "a compliance nightmare".

[206]

It is appropriate to grant declaratory relief

Having determined that it is appropriate to make a number of the declarations sought by the Applicant Council, the Court has been persuaded, in part by the Company Respondents' submissions, that the various restraining orders which it has decided to make ought to be stayed for a period of three months, as an exercise of discretion. Primarily concerned for the wellbeing of persons who are not at fault, such as workers who would most likely find themselves unemployed if the Quarry suddenly closes or persons dependent upon the fulfilment of current supply contracts who would most likely suffer with a sudden Quarry closure, the Court is also cognizant of the implications of the SSD Application process which must be far advanced.
The Court accepts that the appropriate principles to apply which govern the exercise of discretion under s 124 EPA Act (now s 9.46 EPA Act) were set out in the 1987 cases of ACR Trading Pty Ltd v Fat-Sel Pty Ltd and Warringah Shire Council v Sedevcic. It is adherence to those principles which guides the Court to make a number of the declarations sought. The Applicant Council as a public authority is properly seeking to have the public law enforced and once it has demonstrated breach, the Court should appropriately demonstrate its disapproval through the making of appropriate declarations and orders in an effort to enforce the law. As Kirby P, as he then was said in Warringah Shire Council v Sedevcic at [340D]: "[w]here the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary…"
The Court rejects the Company Respondents' submissions in par 271 of their closing submissions which seek to minimise the impacts on the broader community, in particular those who reside in the township of Paterson, from the increase in truck movements due to the greatly expanded operation of the Quarry far beyond that approved by the 1991 Consent. Earlier in this judgment the Court has summarised the evidence regarding the off-site impact of the current activity associated with the Quarry, which it found persuasive. The Court expressed its views regarding the unacceptable implications of what has become a significant increase in truck movements associated with "more recent" quarry operations. With respect to the village of Martins Creek itself, the Company Respondents submitted that "there is no evidence that current operations at (the) Quarry are having direct impacts on residents in the Martins Creek locality". The Court surmises that the absence of concerns from that village, which would appear to be a settlement largely dependent upon and/or associated with the Quarry is unsurprising. The wider implications of the unlawfully expanded Quarry, especially upon the township of Paterson, reinforce the Court's resolve that it must exercise its discretion cognizant of those impacts and the clear need, indeed duty, in accordance with the Warringah Shire Council v Sedevcic principles, to uphold the rule of law.
The Company Respondents asserted that components of their operation, such as the pugmill and pre-coat plant, have low environmental impact, and so ought not be the subject of orders which would have the effect of closing them down to no good end. The difficulty with that proposition is that the operations on the Eastern Lands are conducted as an integrated whole, with one part of the operations "feeding" another with raw materials or operating concurrently so as to meet the demands of the market at any point in time. Although it may be true that some components of the quarry operations are more offensive than others, perhaps more noisy or dusty, nevertheless if the more benign component of the operations require development consent in order to be lawful, then so be it, that development consent should be obtained. Sedevic effectively charges public authorities to uphold the public interest by ensuring that the planning law is not breached. This Court is duty bound to uphold the law if it finds the law has been breached. The simple fact remains a persuasive influence on the exercise of discretion: any development lacking lawful consent should be properly assessed in order to determine the acceptable operating parameters. "Acceptable operating parameters" not only allow an appropriate and reasonable proposal to be approved, but concurrently ensures that the public interest is safeguarded. Where that public interest includes protection from adverse environmental and amenity impacts, the Court should not relax standards by taking a too lenient approach, especially when, as the evidence has shown in this case, conditions have been incrementally worsening over many years.

[207]

The alleged delay on the part of the Applicant Council

The Court is unpersuaded by the Company Respondents' submission that the Applicant Council has delayed, without any plausible explanation, taking action to seek redress regarding the breaches of planning law. They asserted that the Applicant Council has acquiesced in allowing the Company Respondents to proceed and so, as a consequence, ought to be denied the relief it seeks. The Company Respondents submitted that the Council has knowingly participated in and profited from the relevant allegedly unlawful conduct, through, for example, being a long-time customer of the Quarry.
The Court set out at [836]-[848] above a summary of the Applicant Council's submissions regarding the assertion of inaction and alleged delay on its part. Earlier, at [820]-[827], the Court set out a summary of the Company Respondents' submissions on these issues. In short, the Court finds the Applicant Council's analysis of the evidence as to what did happen leading up to these proceedings persuasive and it agrees with the Applicant Council's analysis of the law in this regard. In particular, the Court is persuaded that the conduct of the Applicant Council prior to these proceedings was not such as to preclude it from taking the steps it has now taken, nor, importantly, would its conduct have been of the character that would weigh against the exercise of discretion in its favour.
Agreeing with the submissions put by the Applicant Council, the Court has found it well to keep in mind Minister for Immigration and Ethnic Affairs v Kurtovic at 208 per Gummow J as he then was: "Even if the statement in question did bear the implication contended for, there are considerable difficulties in the way of propounding an estoppel against the exercise of an administrative discretion. Rather, in the present case, the respondent seeks to prevent the appellant from making a decision within the latter's power which would have the effect of altering a previous intra vires decision. The respondent is then met with the objection that to allow an estoppel in this context would hinder or prevent further exercise of the statutory discretion. The principles governing the application of estoppel by representation, or promissory estoppel, and related doctrines, have evolved largely in the context of private law. Difficult issues arise as to the extent to which those principles are to be applied in administrative law. The generally accepted proposition is that: 'Estoppel cannot operate to prevent or hinder the performance of a positive statutory duty, or the exercise of a statutory discretion which is intended to be performed or exercised for the benefit of the public or a section of the public." (Halsbury's 'Laws of England', 4th Ed., Vol. 44, 'Statutes' para 949.)'"
The alleged disentitling delay on the part of the Applicant Council in this case is clearly distinguishable from that examined in Bankstown City Council v Bennett, the authority relied upon by the Company Respondents on this point. In that matter, relevant factors which influenced the decision not to grant an injunction included, inter alia (at [109]): 1. that a school (acts in the public interest as far as educational facilities are concerned - doing what it did "for an entirely beneficial purpose and not to advance any private commercial interest that others could not enjoy"; 2. "the damage done by the breach to the environment by the unlawful development is limited to the undermining of the planning regime. That is to say, there are no known adverse amenity impacts"; and 3. "the relief sought was against a 'static' development; the erection of buildings for which, at the time of the hearing, …it may be inferred, have been substantially completed".
With respect to each of the three factors listed above, my assessment of the evidence in this matter leaves me with very different conclusions to those of Pepper J in the circumstances of Bankstown City Council v Bennett. First, in this matter, the Company Respondents were purely pursuing private commercial gain. Secondly, there are demonstrable environmental impacts; it is not only a matter of undermining the planning regime. Finally, the Quarry operations are not akin to a static development, like a school building, rather they are ongoing, expansive and involve disturbance - as judged by my assessment of the evidence of truck movements and their impacts alone.
The Court considers that it is well to remember that the Applicant Council acts in a representative capacity in the public interest and delay alone, even if excessive, would not ordinarily disentitle it to relief vindicating or protecting this interest: Liverpool City Council v Main Homes Pty Ltd [2011] NSWLEC 174 (Main Homes) at [49] and the authorities cited thereat. As Pepper J accepted in Bankstown City Council v Bennett at [109], the decision in Main Homes confirms that the enforcement of planning laws by the Applicant Council undoubtedly constitutes action for public benefit and is in the public interest.

[208]

It is appropriate to make certain orders

The Company Respondents argued against the grant of relief, asserting that even if the Applicant Council's case is upheld, the Applicant Council itself is amenable to components of the quarrying operations to continue. The Court is not surprised that the Applicant Council submitted that that which is lawful may continue. That is a responsible stance with which the Court would find no fault. Although the Court has found that it stretches credibility to accept that stone extracted in recent years is still coming from the allowed 5 ha area of Lot 5 and within the allowed depth, nevertheless It may be that those that were responsible for decisions to extend extraction into unpermitted areas, may have left some small portion of the allowed area untouched. That is a matter the Court cannot discern on the evidence. Similarly, if there is some material remaining that can be lawfully extracted, although unlikely on the evidence, the Company Respondents could then conceivably revert to the railway ballast quarry, rather than a more generic quarry operation, as originally proposed by the SRA In contradistinction to the foregoing, at no stage did the Court hear the Applicant Council submit that it would support illegal operations continuing. Finally, it may be so that the orders sought seek to restrain aspects of the Quarry operations until such time as new development consents are obtained, thereby implying that quarrying and processing operations might be accepted in the future. The critical factor, which is patently clear, is that whatever might be allowed to operate in the future must be lawful, allowed by a development consent after a process properly assessing impacts. Again, that is an entirely proper stance by the Council.
The Company Respondents submitted that, in exercising its discretion, the Court should take into consideration that the Company Respondents acquired the Quarry from RailCorp with limited information and opportunity to scrutinize the history of the permitting, alleging that "RailCorp refused to disclose that information". The Court finds these submissions unpersuasive as the Company purchasers were obliged to carry out whatever due diligence was required in order to be satisfied to proceed with the acquisition of the Quarry. Being corporate commercial entities with resort to professional and legal advice, negotiating with a government corporation, the portrayal of the Company Respondents as naive innocents is not credible. The old adage of "buyer beware" is apposite. The Court does not accept that the Company Respondents were ignorant of the 1991 Consent, nor does it accept that the Company Respondents were not fully aware that they were acquiring a quarry primarily for the extraction of railway ballast, limited to specified land, with operating conditions tailored to such an enterprise. However, even if in fact they were so ignorant, they ought not to have been.
Related to the above discussion, the Court rejects the Company Respondents' proposition summarised at [824] above regarding the implications of the settlement of proceedings against RailCorp and the Second Respondent (commenced by the Applicant Council in 2009) which, it was said, entitled the Company Respondents to assume that the Applicant Council would be prepared to permit the continued operation of the Quarry, using the existing equipment and facilities, at the then agreed level of production without constraint as to the modes of product transportation. Even if there was some arguable basis, (which the Court does not accept), for the Applicant Council to fetter the exercise of its statutory duty to enforce the planning controls, condoning a mode of operation that had never received development consent by reason of a settlement of proceedings, the Company Respondents' argument, to have any merit, must be predicated on the operating conditions allegedly allowed in 2009 being identical to the operating conditions at the date of the Amended Summons in July 2015, or at the time of trial before the Court. On the evidence, the Court does not accept that as being the case. The ongoing and incremental expansion of the quarry operations have progressively moved the Quarry away from being a quarry for railway ballast to an unpermitted operation with significantly different offsite environmental impacts.
Critically, on the evidence before it, although the Court found that the process of transformation away from a railway ballast quarry began before the Company Respondents came into the picture and although the Court has found that the incremental expansion well beyond allowed limits also began before the Company Respondents, the Court nevertheless finds on the evidence that the transformation of the Quarry from that of a quarry for railway ballast to a general quarry, (no longer dependent upon rail transportation and no longer primarily transporting railway ballast to primarily serve railway needs) together with a highly significant increase in production of quarry product, accelerated at a pace since the acquisition of the Quarry by the Company Respondents. The Court accepts the submissions of the Applicant Council that the discernible changes in quarry operations, a significant increase by any measure, with such operations having greater amenity and environmental impacts have, to a significant extent occurred after acquisition, indeed particularly from 2014. The Court has concluded that the Company Respondents at some point in time post-acquisition (perhaps, prospectively, at the point of acquisition), decided to push the bounds of what was possible at the Quarry, continuing on, accepting the commercial risk, which I observe was at their peril, in the expectation that they might not be stopped by a small rural Council, despite ongoing breaches of the planning law, on the basis that they would be seen as contributing to the local employment and so the economy. It follows that the Court accepts the description of what occurred as expressed by counsel for the Applicant Council: the Company Respondents "decided to go ahead and to ramp up production without seeking any further consent and fully aware that it could blow up into a full scale dispute".
The Court is firmly of the view that such conduct should not be rewarded with the exercise of discretion in favour of the Company Respondents. Accordingly, the Applicant Council will be granted most of the relief it seeks.

[209]

DECLARATIONS SOUGHT

The Court has decided to make most of the declarations sought by the Applicant Council. In so deciding that these declarations should be made I have had regard to various prior decisions of the Court in which the merit of making declarations has been examined. The key deciding factor whether to make or not make a declaration sought by the Applicant Council is to ask whether there is utility in the making of the declarations. The Court should determine that question.
A leading decision of the Court in relation to the making of declarations is Great Lakes Council v Lani , in which Preston CJ set out at [20]-[25] a number of considerations with respect to the making of declarations by the Court regarding statutory breach. "20 First, the making of a declaration by itself would not have any practical effect in the circumstances of this case. A declaration that a breach of a statute has occurred does not have any constitutive effect - it does not bring about any change in the rights or duties of the parties. 21 Secondly, declarations of breach of the statutes are not necessary in order for the Court to have jurisdiction to make other orders including the injunctive orders to remedy or restrain breaches of the statute. The Court can make the injunctive orders agreed to by the parties and found by the Court to be appropriate without first making declarations that the respondents have breached the statutes. The situation in this case is to be contrasted to the regime under the Corporations Act 2001, considered in ASIC v Rich (2005) 50 ACSR 500, where the Court can only make consequential orders of a pecuniary penalty order or a disqualification order once a declaration of breach of the statute has been made under s 1317E of the Corporations Act. 22 Thirdly, a declaration of breach of a statute by itself neither remedies past breaches of the statute nor restrains any future breaches of the statute. Only the injunctive orders, agreed to by the parties and found by the Court to be appropriate to be made, will achieve the consequences of remedying the past breaches and restraining future breaches of the statutes. 23 Fourthly, care must be taken not to use a declaration of breach of a statute in civil enforcement proceedings as a substitute for a criminal prosecution. It is not appropriate for the Court in the exercising of its civil enforcement jurisdiction to punish wrong-doers under the guise of remedying a breach: Liverpool City Council v Roads Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265 at 280. A declaration of breach of a statute in civil enforcement proceedings is not to be equated with the entry of a conviction upon a finding of guilt in a criminal prosecution. The latter does have an effect on the person, including by creating a criminal record for the person, which may have external consequences for that person. A declaration of breach of a statute in civil enforcement proceedings does not have such consequences. 24 The Council could have brought criminal prosecutions in respect of each breach of the statutes but elected not to do so. The reasons why the Council undertook this course are perfectly understandable and related to the greater range of remedial relief available in civil enforcement proceedings compared to that available in criminal prosecutions and to the lower standard of proof in civil enforcement proceedings compared to criminal prosecutions. Nevertheless, that election to bring civil enforcement proceedings having been made, the civil enforcement proceedings should not be now used as a substitute for criminal prosecutions. 25 I accept that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred by the respondents. However, this effect can be achieved by the Court making findings in the judgment of the Court, which, of course, is a public document. The Court's judgment will suffice to publicly expose and denounce on behalf of the community the unlawful behaviour in which the respondents have engaged. I have set out above in full each of the findings of the Court, including those that have been admitted in the points of claim, together with the consequences that flow from those findings as to the breaches of each of the statutes. This public pronouncement in the judgment suffices to achieve the purpose of public exposure and denouncement of the unlawful conduct of the respondents."
In Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 at [24]-[44], I examined the principles in relation to the utility of making declarations, citing a number of other cases including Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [15]-[23] and Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 at [30], [32] and [35]. In deciding to make the declarations sought in Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3), I made the following observations at [36]-[39]: "36. There is no doubt that it is within the jurisdiction of the Court to make the declarations as sought by the parties. That is not in issue: the real question is whether the Court's discretion should be exercised to make the declarations. The issue is whether there is utility in making declarations. In essence, the case law referred to in this judgment goes to the question of utility of making a declaration. That is the focus in the case law I have cited: in short, it is considered inappropriate to make a declaration if there is no utility in doing so. So in the case of Pepper J's decision in Hill Top Residents (No 4) the utility of making declarations was identified in [23] in the following terms: 'in order to achieve the purpose of exposure and denouncement of the unsanctioned conduct, mere public pronouncement in a published judgment alone will not, in my opinion, suffice'. 37. In the context of the discussion in Lani, it is true, when considering the declarations proposed in this case, that they relate to occurrences that occurred in the past, and so, in accordance with Lani at [20], that the making of the declarations will not bring about any change in the rights or duties of the parties. Further, I agree again with Preston CJ in Lani at [21] the making of the declarations in this case are not necessary in order to make the other orders sought, most particularly the injunctive order 5. Finally, given that the declarations relate to works that occurred at a time when an earlier LEP was in place, which has now been superseded, the declarations in themselves neither remedy past breaches nor restrain any future breaches of the statute and the current LEP. 38. However, it is with respect to the 'public pronouncement' aspect of a judgment, discussed at [25] of Lani that I discern a distinction between the decision of Preston CJ in the circumstances before him and the circumstances before me in this case. In this case there is agreement between the parties that the declarations should be made, whereas in Lani no such agreement had been reached. Preston CJ confirmed that a legitimate purpose of civil enforcement proceedings is for there to be a finding by the Court and, through its judgments, a public pronouncement that a breach of the law has occurred. Returning to my use of the word 'utility' above when highlighting what I believe to be the underlying principle, tritely, that the making of declarations must serve some purpose, it is instructive that his Honour went on to say that the public pronouncement that a breach of law has occurred can be achieved by the Court making findings in the judgment of the Court, which, he reminded the reader, is of course a public document. He said that the Court's judgment will suffice to publicly expose and denounce on behalf of the community the identified unlawful behaviour. 39. Although judges will always strive to write their judgments in concise and clear terms, avoiding ambiguity and misunderstanding, it is inevitable that the text of a judgment is more discursive than the tight confined language that one expects to find in a carefully crafted declaration. Judgments set out the rationale that leads to the final conclusions, traversing the history of the proceedings and analysing the law and evidence. A lay review of a judgment can lead to an inexact summary, such as an interpretation by a 'victor' through 'rose-tinted glasses'. In the circumstances of the hotly contested litigious stages that have characterised these proceedings to date, one must presume that the proposed three declarations have been insisted upon by the Applicant and the tightly confined language is a consequence of the Respondents effectively, drawing a line in the sand and saying 'thus far no further'. The Court anticipates that the Applicant will use and refer to the declarations for whatever purposes it sees fit post these proceedings. In these circumstances, surmising that as being the reality of what is to follow, the Court would prefer post-case reference to the outcome of the proceedings to be to the concise and confined language of the declarations, rather than someone's summary of that which would otherwise be in the body and conclusions of the judgment."
I find further support for making the declarations sought in Director-General, Department of Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118 at [276] wherein Preston CJ found that there was justification for making the declaration therein sought as the circumstances were aligned with those examined in Council of the City of Sydney v Mae [2009] NSWLEC 84; Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127; and Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4). In Director-General, Department of Climate Change and Water v Venn, as with the Company Respondents in this case, the respondent did not admit the breach and put in issue the critical elements of the breach. Preston CJ found that in the circumstances before him it was not sufficient for there to be merely findings in the reasons for the judgment of the Court; instead the ultimate findings needed to be reflected in a declaration that the respondent's conduct constituted a clear breach of the National Parks and Wildlife Act 1974. In Marrickville Council v Tanwar Enterprises Pty Ltd at [37] the continual nature of the breach before the Court made it appropriate to make a declaration - a prospect which is potentially faced by the Court in these proceedings with the Company Respondents, given the history of the operations at the Quarry and the length gone to in this trial to dissect every single point of potential differentiation in an endeavour to find an entitlement to continue operation in one respect or another. The Court finds itself in agreement with the approach adopted by Stein JA in Winn at [308] in determining that declarations should be made that mining activities causing environmental harm were in breach of relevant statutes. His Honour said that: "There is a demonstrable purpose in making the declarations. They serve to declare the law and underline the breaches. They have utility and draw attention to the continuing environmental harm to the aquifer."
Accordingly, in the current proceedings I do see utility in making the declarations sought by the Applicant Council. First, by any measure this is a large judgment examining a multiplicity of complex issues. Many of the issues determined are so complex that they are not readily understood without the closest of scrutiny involved and examining conflicting evidence, extending over a period of some 30 years, but with aspects of the legal interpretation involving alleged existing use rights delving back many decades earlier. If the conclusions of the Court are to be understood and repeated, the Court is firmly of the view that concise expression of those findings via declarations is desirable.
Secondly, this judgment has been produced within a context of the Quarry being an operating quarry with associated activity which the Court has found to be contrary to law for a number of distinct and different reasons. The Company Respondents pressed the Court in their closing submissions at pars 273-275 to consider, in the exercise of its discretion, the fact that the Second Respondent had lodged a SSD Application which is being considered concurrently with the Court's deliberation. The Company Respondents had in fact sought a stay of the whole proceedings pending the assessment and determination of the SSD Application which Sheahan J rejected in Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd. Before me it was submitted that I ought not make the orders sought by the Applicant Council restraining the Second Respondent's operations, even if I found a breach of the planning laws, and instead allow the company to continue operating subject to an IEMP which the Company Respondents indicated they would voluntarily operate under pending the determination of the SSD Application.
The Court has considered the SSD Application a relevant matter that should influence the exercise of its discretion, in staying, for three months, all restraining orders pending the determination of the SSD Application. The Court also considers that the SSD Application process should influence the exercise of discretion in another manner: that is, as justification for the making of the declarations sought by the Applicant Council.
In Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd, Sheahan J held at [134]: "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."
His Honour made this decision after accepting the submissions made before him by the Applicant Council, which he quoted at [122]: "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."
I am entirely in agreement with the reasons of Sheahan J in declining to stay these proceedings pending the determination of the SSD Application. Now that the matter before me has concluded and there is a judgment confirming the multiple breaches of planning and environmental law at the current Quarry, the SSD Application process will now be better informed. In circumstances where this judgment will inform the SSD Application process that the "starting point" of consideration of the Second Respondent's SSD Application proposal is not a lawfully operating quarry with consents in place but rather an operation which is in breach of the planning law being conducted far in excess of that for which consent was obtained in 1991, the Court considers there is great utility in the decision-makers who are considering the SSD Application fully and properly understanding the legal parameters of that which has been placed before them. Declarations that these breaches have occurred are useful and clear statements of those legal parameters.
Likewise, as the Applicant Council argued before Sheahan J, there is utility in the affected community members precisely understanding the legality or otherwise of the various components of the Second Respondent's current operations at the Quarry.
In both instances, of SSD Application decision-makers and members of the community affected by the Quarry, the Court considers it unreasonable to expect them to grapple with and interpret a judgment which unavoidably extends to near 400 pages in length, and traverses a multiplicity of complex legal issues. Succinct findings on the law as expressed in the various declarations the Court now makes, which are able to be easily extracted and referenced, without suffering from misquoting or misinterpretation, are necessary. Accordingly, consistent with the reasons expressed by Pepper J at [23] in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4), and akin to my reasons at [39] in Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3), I consider it essential that I make the declarations sought given the multiple reasons I have identified for doing so.

[210]

ORDERS SOUGHT ARE REFINED

For reasons of clarity, the Court provides the following explanations regarding certain aspects of the orders which are made as a consequence of the findings in this judgment.
First, in each of the orders (that is, Orders 3, 5, 7, 9, , 11, , 13, , 15, , 17, , 19, , 21, , 23, , ,) restraining activities of the Second Respondent, that restraint is stayed for a period of three months from the date of these orders. In the context of the Court making the findings it has in relation to non-compliances on the part of the Company Respondents, in circumstances where there is unlikely to have been any fault on the part of non-executive employees of the Company Respondents (that is, the employed workers), as a matter going to the exercise of discretion, the peremptory cessation of most or all operations at the Quarry would be unconscionable as it would most likely result in the immediate termination of much, if not most, associated employment. With the "bread-winner" of many families becoming unemployed, it follows that other members of the families involved would suffer through no fault of their own. The Company Respondents' closing submissions at par 270 confirmed that there would be 25 employees directly affected by the cessation or limitation of operations at the Quarry.
Evidence was placed before the Court regarding production of product from the Quarry, some of which gave an insight into the diversity of projects and/or customers to which product from the Quarry has been supplied. Just one instance of such evidence being the Exhibit L spreadsheet. That spreadsheet provided a snapshot of product delivery for just part of September 2014. Given the scale of the quarry operations, the Court has little doubt that, at any point in time, there would be a significant number of contracts for current and forward supply of quarry product. Although the Company Respondents in their closing submissions at par 270 refer to substantial economic costs that might be suffered by the Company Respondents if the Court was to make the orders sought, in the exercise of its discretion, the implications for the wider "innocent" community must be of concurrent concern to the Court. That "innocent" community includes both those directly affected by amenity and environmental impacts of the unlawful operations at the Quarry, but also those who have made arrangements for the receipt of a supply of quarry product.
Peremptory cessation of most or all operations at the Quarry may harm many contracting parties, some of which may be involved with public projects, whilst others would be involved with private projects. If the Exhibit L spreadsheet is accepted as providing an accurate snapshot of part of just one month, numerous public projects were the recipients of quarry product. That snapshot can be presumed to generally reflect the commercial operations of the Company Respondents. Consequently, it is conceivable there may be a number of adverse public ramifications, if some public projects are adversely affected by the cessation of supply. Putting to one side the submissions of the Company Respondents on these issues (as summarised in [828] above), although the Court does not have evidence on these matters at the time of delivering judgment, given that the Second Respondent does not operate in a vacuum, it is appropriate for the Court to assume that potential harm of the kind described, due to a sudden cessation of supply of quarry product, might be suffered by persons beyond the Company Respondents, persons entirely un-associated with the breaches found by the Court.
Given the benefit of the submissions from the Company Respondents, with respect to: (1) the Court's concern for workers who might become unemployed should the Quarry be suddenly closed and so suffer associated adverse social impacts on themselves and their families; and (2) the wider community, including "innocent" parties to forward-supply contracts should the Quarry suddenly be closed, in the exercise of its discretion, the Court is accepting the reality of such likely impacts. It is logical that such impacts would be direct consequences of a sudden closure of the Quarry. It might be said that the Court is taking judicial notice of such likely scenarios - judicial notice being a rule that permits a fact to be accepted as evidence without further proof, if it is so well known that no one could reasonably doubt or debate it. Without further evidence, the Court has decided that, for the purposes of exercising its discretion, these logical observations would easily be "knowledge that is not reasonably open to question" (as per s 144(1) of the Evidence Act 1995). In circumstances where there is "in the pipeline" (a very extended pipeline) a development consent application - the SSD Application - lodged on 27 September 2016 by the First or Second Respondent (or both) for the approval of aspects, perhaps all, of the current operations at the Quarry (plus increased production), the Court is unaware of an outcome in response to that application. The Court has not been apprised of any outcome, so it has been assumed that none has been achieved.
The determination of the questions of law and fact in this judgment has occurred, properly, without reference to or knowledge of the current status of the SSD Application, although a considerable amount of material relating to the SSD Application was placed into evidence. However, agreeing in part with the First and Second Respondents' closing submissions at pars 273-275, the implications of the SSD Application are relevant to the exercise of discretion.
Cognizant of the fact that the SSD Application would be assessed in accordance with current-day environmental, planning and amenity criteria, the Court has decided, in the exercise of its discretion, to stay the restraint orders for three months. In addition to the reasons set out above in [880]-[881] of this judgment, in a context where the consideration of the SSD Application must surely be well advanced, perhaps approaching conclusion, three months should allow that DA to be determined. By setting a three month effective deadline, a message of urgency is being conveyed to complete the SSD Application process. With the Court having made the findings that much of the current operations at the Quarry lack consent and/or are in breach of controls, the completion of the decision-making process with respect to the SSD Application will be better informed: essentially, that the starting point for the SSD Application is not one where the current quarry operations are in compliance with the controls, rather there are many clear instances where the planning and environmental controls are being breached.
Without the grant of a development consent following the consideration of the SSD Application (which, as noted above, the Court accepts would be subject to the current-day controls considered appropriate by the decision-maker) then the Court orders will (unless extended) bring about cessation of the bulk of the quarry operations three months from the date of these orders - other than any lawful winning from the area delineated on Plan 2 in Lot 5 alone of rock material primarily for railway ballast. The tertiary processing plant, which is the subject of its own development consent, could conceivably also continue, providing, of course, it is operated lawfully within its operating conditions which the Court has found did include a limit on production.
The preceding paragraph highlights another aspect of the orders which would benefit from explanation. The Court has concluded that had the extractive industry operation remained confined to the winning of rock from the 5 ha area within the delineated polygon on Plan 2 in Lot 5 primarily for railway ballast, then the primary issues regarding the Western Lands would not have arisen. With respect to that which is to be restrained, it is to be understood that within operations described as "extractive industry", such operations are inclusive of the primary activity of extracting stone; and associated ancillary activities and development, such as access roads, stockpile areas and ancillary processing.
So when the Court refers to "the purposes of extractive industry for the winning of material primarily for railway ballast" in its orders and declarations, the word "winning" embraces both the extraction and associated ancillary activity. This distinction is important as, with respect to the Court's finding in relation to that which was originally permitted on Lot 6, Orders 6 and 7 in this judgment intentionally focus on just the extraction of rock. The declaration and order sought by the Applicant Council in its draft Orders 6 and 7 respectively used the term "extractive operations". Although "extractive operations" may be distinguishable from the broader "extractive industry", seeking to avoid potential ambiguity, the Court has adopted the more focussed term of "extraction of rock" for its final Orders 6 and 7, recognising that ancillary components of an extractive operation were permitted by the original consent.
Finally, with respect to Order 24 which requires the Second Respondent to carry on its operations in accordance with the IEMP which was Annexure 1 to the Company Respondents' closing submissions (and was Exhibit 17) pending the determination of the SSD Application, the Court wishes to clarify that, by accepting the Second Respondent's submissions regarding the implementation of the IEMP on an interim basis, no inference is to be drawn that such operating conditions would be acceptable in the long term to the Court in any consent that may issue in response to the SSD Application. The SSD Application has never been before this Court for consideration, nor has the question of appropriate operating conditions for the Quarry into the future been before the Court. Meeting the interim purposes for which it was submitted, the IEMP is clearly a somewhat superficial document if it were to be given a longer term function. However, the Court has been neither required nor requested to form a view upon such matters.
As for the IEMP in the short term, it is seen as a very interim measure, in essence accepted by the Court on the basis that something is better than nothing. The Court accepts the Applicant Council's submissions regarding the IEMP (summarised at [850] in this judgment) - essentially that the document is far from acceptable, let alone ideal. I also note the accurate assessment of Sheahan J at [137] in his judgment in Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd that "the respondents' IEMP really maintains the status quo, be it lawful or otherwise". However, pragmatically, the Court identifies that the IEMP is at least a form of environmental management that can be commenced virtually immediately; hence Order 24 requires its implementation within 14 days of the Court's orders.
The Court toyed with the alternative of having the parties prepare a better and more extensive IEMP through a process of negotiation, including consultation with the community, which would then return to the Court for examination and adoption. Such a process could be fraught by delay and may not see anything better put into operation within months. Hence the Court decided to adopt the IEMP as a very interim measure. The emphasis must now be on the SSD Application being determined as it will be in accordance with current day planning and environmental standards, with such determination now being within the context of the status quo at the Quarry being largely illegal, being operated contrary to the EPA Act. That is the relevant baseline context by which the SSD Application is to be assessed and determined.

[212]

ORDERS

In the context of the findings of law and fact contained in the preceding paragraphs of this judgment, the Court makes the following declarations and orders. Development on Lots 5 and 6 in DP 242210 1. It is declared that development consent No DA171/90/79 granted by the Applicant on 14 May 1991 (1991 Consent) with respect to the carrying out of development on land comprising Lot 5 in DP 242210 (Lot 5) and Lot 6 in DP 242210 (Lot 6) does not permit the said land to be used for the purposes of extractive industry otherwise than for the winning of material primarily for railway ballast. 2. It is declared that the First and Second Respondents, by themselves, their servants, agents and assigns, are using Lots 5 and 6 for the purposes of an extractive industry, otherwise than for the winning of material primarily for railway ballast, without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979. 3. It is ordered that the First and Second Respondents, by themselves their servants agents or assigns, be restrained from using Lots 5 and 6 for the purposes of an extractive industry, otherwise than for the winning of material primarily for railway ballast, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 4. It is declared that any further extraction of material from Lots 5 and 6 is prohibited until development consent has been duly granted under the Environmental Planning and Assessment Act 1979 for the further extraction of extracted material from those lots. 5. It is ordered that the First and Second Respondents be restrained from extracting any further material from Lots 5 and 6 unless and until they are authorised to do so by a development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 6. It is declared that the 1991 Consent does not permit the carrying out of any operations involving the extraction of rock on Lot 6. 7. It is ordered that the First and Second Respondents, by themselves their servants agents or assigns, be restrained from carrying out operations involving the extraction of rock on Lot 6 unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 8. It is declared that the 1991 Consent permits the carrying out of extractive operations on Lot 5, only within the area and to the depth of 40 m RL identified on the drawing entitled "Plan 2, Proposed Quarry, Lots 5 & 6 DP 242210" (Plan 2) which formed part of the Environmental Impact Statement dated July 1990 prepared by D P James for the State Rail Authority of NSW which accompanied the application for the 1991 Consent. 9. It is ordered that the First and Second Respondents, by themselves their servants agents or assigns, be restrained from carrying out extractive operations on Lot 5 otherwise than in accordance with the limitations as to area and depth of 40 m RL identified on Plan 2, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 10. It is declared that the First and Second Respondents are transporting by road more than 30% of the lawful annual production of the quarry material from Lots 5 and 6 contrary to condition 6 of the 1991 Development Consent. 11. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns, be restrained from permitting the transport by road of more than 30% of the lawful annual production of the quarried material from Lots 5 and Lot 6, unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. Development on Lot 1 in DP 1006375 and on Lot 1 in DP 204377 1. It is declared that the development being carried out by the First and Second Respondents, by themselves, their servants, agents or assigns, on that part of Lot 1 DP 1006375 that formerly comprised Lot 2 DP 524511, being the crushing and stockpiling of quarried material, constitutes an enlargement, expansion or intensification of the use of the said land for the purpose of a crushing plant as at 5 February 1986, contrary to s 4.68(2) of the Environment Planning and Assessment Act 1979. 2. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns, be restrained from carrying out on that part of Lot 1 DP 1006375 that formerly comprised Lot 2 DP 524511 the crushing or stockpiling of more than 449,000 tonnes of bulk quarried material (310,000 tonnes of saleable product) per annum unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 3. It is declared that the First and Second Respondents, by themselves, their servants, agents and assigns, are using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing stockpiling and transportation of extracted material without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979. 4. It is ordered that the First and Second Respondents by themselves, their servants, agents and assigns be restrained, using that part of Lot 1 DP 1006375 that does not comprise the land formerly known as Lot 2 DP 524511 for the deposition, storing, stockpiling or transportation of extracted material on the said land unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the restraint shall be stayed for a period of three months from the date of this order. 5. It is declared that the development being the installation and use of a pugmill and associated silos and tanks and associate infrastructure and the stockpiling of extracted material and fly ash by the First and Second Respondents on Lot 1 DP 204377 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979. 6. It is ordered that the First and Second Respondents remove the pugmill and associated silos and tanks and associated infrastructure and the stockpiled extracted material and fly ash from Lot 1 DP 204377 and cease using the said land for the purpose of stockpiling or processing extracted material and fly ash, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order, then this order shall cease to have effect. 7. It is declared that the development being the installation and use of a pre-coat plant by the First and Second Respondents on Lot 1 DP 1006375 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979. 8. It is ordered that the First and Second Respondents remove the pre-coat plant from Lot 1 DP 1006375 and cease using the said land for the purpose of operating a pre-coat plant unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order then this order shall cease to have effect. Use of Lot 5 DP 242210 1. A declaration that the development being the installation and use of a manufactured sand processing plant and two mobile crushing plants by the First and Second Respondents on Lot 5 DP 242210 is being carried out without development consent in contravention of s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979. 2. It is ordered that the First and Second Respondents remove the manufactured sand processing plant and two mobile crushing plants from Lot 5 DP 242210 and cease using the said land for the manufacture of sand or the crushing of extracted material unless and until authorised to do so by development consent duly granted under the Environmental Planning and Assessment Act 1979, save that the removal and cessation required by this order shall be stayed for a period of three months from the date of this order. If in the course of this three month period, or such further period as may be allowed by further order of this Court, a development consent is duly granted under the Environmental Planning and Assessment Act 1979 for the use and development the subject of this order, then this order shall cease to have effect. Invalid variation of Environment Protection Licence No 1378 granted under the Protection of the Environment Operations Act 1997 1. It is declared that the purported variation made by the Third Respondent under s 58 of the Protection of the Environment Operations Act 1997 to Environment Protection Licence No 1378, being a licence currently held by the Second Respondent and formerly held by Rail Corporation New South Wales, by way of Notice of Variation No 1071585, dated 2 April 2007, is invalid and of no effect. 2. It is ordered that the First and Second Respondents be restrained from carrying out the scheduled activity the subject of Environment Protection Licence No 1378 (as varied) at any scale exceeding 500,000 tonnes per annum, unless and until authorised to do by an environment protection licence duly granted under the Protection of the Environment Operations Act 1997, save that the restraint shall be stayed for a period of three months from the date of this order. Operations at and associated with the Martins Creek Quarry during stay period 1. Notwithstanding the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 or any extension of that stay period as may be allowed by further order made pursuant to Order 25, the Second Respondent, shall, within fourteen (14) days of these orders, conduct its operations at and associated with the Martins Creek Quarry in accordance with the amended Interim Environmental Management Plan (IEMP) annexed to this judgment (which is based on the draft that was Annexure 1 to the Respondents' closing submissions (and Exhibit 17) in relation to which the Second Respondent undertook to operate). Operating in accordance with the annexed IEMP shall continue until such time as the State Significant Development Application (SSD Application) is determined in accordance with the Environmental Planning and Assessment Act 1979 and all required consents, approvals and licences have been granted. Leave to apply in relation to the stay on orders 1. (a) The First and Second Respondents have leave to apply to the Court to have extended the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, and 23. (b) An extension of the stay will not be granted unless the application seeking it is supported by affidavit setting out the basis for seeking the extension and the Court is satisfied that it is reasonable and proper in the circumstances to grant it. The affidavit, in particular, must: 1. demonstrate that the First and Second Respondents have taken all steps necessary, with due diligence, to facilitate the completion of the SSD Application process; 2. demonstrate that the First and Second Respondents have proceeded with expedition since the date of these Orders in their endeavours to secure all necessary consents, licences and associated approvals as are required for the Quarry, whether consequential to the SSD Application process or otherwise; 3. confirm that the First and Second Respondents have duly implemented and complied with the Amended IEMP, and will continue to do so, in accordance with Order 24 of the Court; 4. confirm that Dungog Shire Council has been advised of the SSD Application (so as to enable it being heard on the application); and 5. confirm that a reasonably visible notice advising of the SSD Application was placed in the local newspaper with the highest circulation within the district which includes the towns of Martins Creek and Paterson (so as to enable representatives of the community to be heard, with leave, on the application). Costs 1. The First and Second Respondents shall pay the Applicant Council its costs in the proceedings, on the normal basis, as assessed or agreed, such costs to be paid within 60 days of these Orders. Exhibits 1. Exhibits tendered to the Court during the proceedings by a party may be released to that party seven (7) days after the date of these orders, upon application to the Registry of this Court.

[213]

Addendum made on 25 October 2018

On 25 October 2018 by consent of the parties the Court amended Orders (24) and (25) pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 as follows: Operations at and associated with the Martins Creek Quarry during stay period (24) Notwithstanding the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 or any extension of that stay period as may be allowed by further order made pursuant to Order 25, the Second Respondent, shall, within fourteen (14) days of these orders, conduct its operations at and associated with the Martins Creek Quarry in accordance with the amended Interim Environmental Management Plan (IEMP) annexed to this judgment (which is based on the draft that was Annexure 1 to the Respondents' closing submissions (and Exhibit 17) in relation to which the Second Respondent undertook to operate). Operating in accordance with the annexed IEMP shall continue until: (a) such time as the State Significant Development Application (SSD Application) is determined in accordance with the Environmental Planning and Assessment Act 1979 and all required consents, approvals and licences have been granted; or (b) the expiration of the three-month stay period specified in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21 and 23 above, and, in the event of any extension(s) to that period granted by this Court pursuant to Order 25 below, the expiration of such extension(s). Leave to apply in relation to the stay on orders (25) (a) The First and Second Respondents have leave to apply to the Court to have extended the three-month stay provided for in Orders 3, 5, 7, 9, 11, 13, 15, 17, 19, 21, and 23. (b) An extension of the stay will not be granted unless the application seeking it is supported by affidavit setting out the basis for seeking the extension and the Court is satisfied that it is reasonable and proper in the circumstances to grant it. The affidavit, in particular, must: 1. demonstrate that the First and Second Respondents have taken all steps necessary, with due diligence, to facilitate the completion of the SSD Application process; 2. demonstrate that the First and Second Respondents have proceeded with expedition since the date of these Orders in their endeavours to secure all necessary consents, licences and associated approvals as are required for the Quarry, whether consequential to the SSD Application process or otherwise; 3. confirm that the First and Second Respondents have duly implemented and complied with the Amended IEMP, and will continue to do so, in accordance with Order 24 of the Court; 4. confirm that Dungog Shire Council has been advised of the application (so as to enable it being heard on the application); and 5. confirm that a reasonably visible notice advising of the application was placed in the local newspaper with the highest circulation within the district which includes the towns of Martins Creek and Paterson (so as to enable representatives of the community to be heard, with leave, on the application).

[215]

GLOSSARY OF DEFINED ABBREVIATIONS Defined Term Definition 1990 DA Development application submitted by the State Rail Authority to Dungog Shire Council on 8 August 1990 which described the proposed development as "quarry for railway balast [sic]" and the location of the proposed development as "Lot No 5 + 6" of "D.P. 232210 [sic]" 1990 EIS The environmental impact statement submitted with the 1990 DA 1991 Consent Development consent granted in relation to the 1990 DA Applicant Council Dungog Shire Council Class 2 development Per cl 4(1) of Ordinance 105, development carried on by a person carrying on a public utility undertaking "expressly authorised under any…State Act" DA Development Application Eastern Lands Portion of the Quarry to the east of Station Street (Lot 1 Deposited Plan 1006375 and Lot 1 in Deposited Plan 204377) EIS Environmental impact statement EPA Environment Protection Authority, the Third Respondent EPA Act Environmental Planning and Assessment Act 1979 EPA Regulation Environmental Planning and Assessment Regulation 1980 EPL Environment protection licence EPL 1378 Environment protection licence held by the Second Respondent for the scheduled activities of "crushing, grinding or separating works" and "extractive industries" at the Quarry. February Minutes The minutes of the ordinary meeting of the Applicant Council on 12 February 1991 February Resolution A resolution made at the ordinary meeting of the Applicant Council on 12 February 1991 purportedly to grant development consent in relation to the 1990 DA First Respondent Hunter Industrial Rental Equipment Pty Ltd IDO No 1 Interim Development Order No 1 - Shire of Dungog IEMP Interim Environmental Management Plan, Annexure C to this judgment LEP 1990 Dungog Local Environmental Plan 1990 LEP 2006 Dungog Local Environmental Plan 2006 LEP 2014 Dungog Local Environmental Plan 2014 LEP No 1 Dungog Local Environmental Plan No 1 Lot 5 Lot 5 Deposited Plan 242210 Lot 6 Lot 6 Deposited Plan 242210 May Minutes The minutes of the ordinary meeting of the Applicant Council on 14 May 1991 May Resolution A resolution made at the ordinary meeting of the Applicant Council on 14 May 1991 to grant development consent in relation to the 1990 DA Model Provisions 1980 Environmental Planning and Assessment Model Provisions 1980 Notice Purported notice of determination of the 1990 DA, sent by the Applicant Council to the SRA on 7 March 1991 Ordinance 105 Ordinance 105 - Town and Country Planning (General Interim Development) POEA Act Protection of the Environment Administration Act 1991 POEO Act Protection of the Environment Operations Act 1997 Quarry The Martins Creek Quarry RailCorp Rail Corporation New South Wales, a successor agency of the State Rail Authority of New South Wales RSA Rail Services Australia RTA Roads and Traffic Authority Second Respondent Buttai Gravel Pty Ltd SEPP 2007 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 SPCC State Pollution Control Commission SRA State Rail Authority of New South Wales SSD State Significant Development SSD Application State Significant Development application lodged by Buttai Gravel Pty Ltd for the Martins Creek Quarry Extension Project. Third Respondent Environment Protection Authority Western Lands Portion of the Quarry to the west of Station Street (Lots 5 and 6 Deposited Plan 242210)

[216]

ANNEXURE C INTERIM ENVIRONMENTAL MANAGEMENT PLAN - MARTINS CREEK QUARRY A: Definitions In this document: Buttai means Buttai Gravel Pty Ltd. Council means Dungog Shire Council. 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 Martins Creek Quarry, located at Station Street, Martins Creek, on Lots 5 & 6 DP242210, Lot 1 DP 204377, Lot 1 DP1006375 and Lot 42 DP815628. The SSDA means State Significant Development Application SSD6612 for the Martins Creek Quarry Extension Project lodged on 27 September 2016. B: Background The purpose of this Plan is to describe the environmental management measures which Buttai has agreed to adopt in order to protect the environment and the amenity of neighbouring landowners and the residents of Paterson if the Court finds that the Quarry is currently operating without consent, or otherwise than in accordance with a consent, or in excess of any existing or continuing use right, or that the Quarry does not have an Environmental Protection Licence, pending determination of the SSDA (including any appeal). This Plan has been prepared without prejudice to Buttai's claims in these proceedings that the Quarry is not limited as to the quantity or method of dispatch of product from the Quarry. C: Interim Provisions

No more than 650,000 tonnes of product will be dispatched from the Quarry by road in any twelve month period.
No more than 130 laden trucks will be dispatched from the Quarry in one calendar day.
No more than 30 laden trucks will be dispatched from the Quarry in any 1 hour period.
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; c. train loading and dispatch: 6am to 6pm. d. truck loading not to commence before 7am.
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 paras [1] and [2].
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. Buttai will modify the Code of Conduct to limit trucks passing through Paterson before 6:45am.
Buttai will require all trucks entering and leaving the Quarry to observe a reduced speed limit of 40km/hour through the town of Paterson as outlined in the Code of Conduct.
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.
While this Plan is in force, there will be no change to the methods of extraction and processing used at the Quarry.
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.
All extraction, crushing, grinding and separating operations at Martins Creek Quarry will comply with Environmental Protection Licence 1378.
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.
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.
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 commences to implement the consent, or c. until final orders are made in these proceedings, whichever occurs first.
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 accepts the conditions of consent, the grant of consent; or b. if Buttai or another party lodges an appeal in relation to the grant of consent, the making of final orders in the appeal.

Parties

Applicant/Plaintiff:

Dungog Shire Council

Respondent/Defendant:

Hunter Industrial Rental Equipment Pty Ltd

Cases Cited (215)

ENVIRONMENT AND PLANNING - Land and Environment Court - jurisdiction and powers - discretionary powers - there is utility in making the declarations sought - State Significant Development application on foot - declarations will assist in the determining of the State Significant Development application - delay by Applicant explicable - Applicant public authority - appropriate to make certain orders sought - orders restraining the unlawful conduct to be stayed for three months - impact on community of immediate cessation of activities Legislation Cited: City of Brisbane Town Planning Act 1964-1976 s 3 Civil Procedure Act 2005 s 56 Clean Air Act 1961 Dungog Local Environmental Plan 1990 cl 6 Dungog Local Environmental Plan 2006 Dungog Local Environmental Plan 2014 Dungog Local Environmental Plan No 1 Environmental Planning and Assessment Act 1979 Div 1 Pt 4, Div 3 Pt 6 Div 10 Pt 4, ss 4, 76A (4.2), 77, 84, 85, 91, 91A, 92, 93, 101, 102, 104A, 106, 107, 108, 109 (4.68), 109B, 122, 123, 124 (9.46) Environmental Planning and Assessment Amendment Act 2017 Environmental Planning and Assessment Model Provisions 1980 cl 35, cl 1 of Sch 1 Environmental Planning and Assessment Regulation 1980 cll 33, 41B, 44, cl 7 of Sch 4 Evidence Act 1995 s 144 Interim Development Order No 1 - Shire of Dungog Interpretation Act 1987 ss 32, 35 Local Government Act 1919 s 342U Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Schs 1 and 3, cl 2 National Parks and Wildlife Act 1974 Native Vegetation Act 2003 s 38 Ordinance No 105 Town and Country Planning (General Interim Development) Pt XIIA, cl 4 Protection of the Environment Administration Act 1991 ss, 4, 5, 6, 45 Protection of the Environment Operations Act 1997 Ch 3, ss 43, 45, 50, 58, 79, 80, 83, 101 Public Works Act 1912 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 cl 11 Transport Administration Act 1988 Cases Cited: ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 AGC (Advances) Ltd v Roads and Traffic Authority of NSW (1993) 30 NSWLR 391 Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439; [2006] NSWCA 273 Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources (2008) 166 FCR 54; [2008] FCAFC 3 Archibald v Byron Shire Council (2003) 129 LGERA 311; [2003] NSWCA 292 Associated Minerals Consolidated Ltd v Wyong Shire Council [1974] 2 NSWLR 681 Athens v Randwick City Council (2005) 64 NSWLR 58; [2005] NSWCA 317 Attorney General v PYA Quarries Ltd (1957) 2 QB 169 Auburn Council v Nehme (1999) 106 LGERA 19; [1999] NSWCA 383 Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378; [2012] FCAFC 56 Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52; [1999] NSWCA 139 Bankstown City Council v Bennett (2012) 187 LGERA 446; [2012] NSWLEC 38 Bankstown City Council v Ramahi [2015] NSWLEC 74 Bardsley-Smith v Penrith City Council (2013) 195 LGERA 34; [2013] NSWCA 200 Barrick Australia Ltd v Williams (2009) 74 NSWLR 733; [2009] NSWCA 275 Baulkham Hills Shire Council v Land Commission of New South Wales (1985) 1 NSWLR 479 Baulkham Hills Shire Council v O'Donnell (1990) 69 LGRA 404 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450; [2007] NSWCA 171 Bentley v Benbow (1957) 97 CLR 444; [1957] HCA 70 Blacktown City Council v The Penatrators Pty Ltd (No 3) [2014] NSWLEC 4 Bob Blakemore Pty Ltd v Anson Bay Company (Australia) Pty Ltd [1990] NSWCA 25 Botany Bay City Council v Parangool Pty Ltd [2009] NSWLEC 198 Botany Bay City Council v Pet Carriers International Pty Ltd (2013) 201 LGERA 116; [2013] NSWLEC 147 Botany Bay City Council v Workmate Abrasives Pty Ltd (2004) 138 LGERA 120 Brown v Randwick City Council (2011) 183 LGERA 382; [2011] NSWLEC 172 Burwood City Council v Ralan Burwood Pty Ltd (No 3) (2014) 206 LGERA 40; [2014] NSWCA 404 BYT Nominees Pty Ltd v North Sydney Council (2008) 161 LGERA 77; [2008] NSWLEC 164 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Carr v Minister for Land and Water Conservation (2000) 109 LGERA 175; [2000] NSWLEC 89 CB Investments v Colo Shire Council (1980) 41 LGRA 270 Cecil E Mayo Pty Ltd v Sydney City Council (1952) 18 LGR (NSW) 152 Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 Chamwell Pty Ltd v Strathfield Council (2007) 151 LGERA 400; [2007] NSWLEC 114 Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd (2010) 78 NSWLR 393; [2010] NSWCA 190 City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 Coalcliff Community Association Inc v Minister for Urban Affairs & Planning (1999) 106 LGERA 243; [1999] NSWCA 317 Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39 Coordinated Construction Company Pty Ltd v Climatech (Canberra) Pty Ltd [2005] NSWCA 229 Council of the City of Sydney v Mae [2009] NSWLEC 84 Council of the City of Sydney v Pink Star Entertainment Pty Ltd (2008) 160 LGERA 251; [2008] NSWLEC 176 Council of the City of Sydney v Wilson Parking Australia Pty Ltd [2015] NSWLEC 42 Cracknell & Lonergan Architects Pty Ltd v Leichhardt Municipal Council (2012) 193 LGERA 151; [2012] NSWLEC 194 Cranky Rock Road Action Group Inc v Cowra Shire Council (2006) 150 LGERA 81; [2006] NSWCA 339 Darley Australia Pty Ltd v Walfertan Processors Pty Ltd (2012) 188 LGERA 26; [2012] NSWCA 48 Director-General, Department of Climate Change and Water v Venn (2011) 210 LGERA 300; [2011] NSWLEC 118 Donnelly v Delta Gold Pty Ltd (2001) 113 LGERA 34; [2001] NSWLEC 55 Donoghue v Stevenson [1932] AC 562 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (2016) 220 LGERA 43; [2016] NSWLEC 164 Eco-Villages Australia Pty Ltd v Pittwater Council [2012] NSWLEC 49 Egan v Hawkesbury City Council (1993) 79 LGERA 321 Elkateb v Lawindi (1997) 42 NSWLR 396 Foodbarn Pty Ltd v Solicitor-General (NSW) (1975) 32 LGRA 157 Formosa v Secretary of the Department of Social Security (1988) 46 FCR 117; [1988] FCA 291 Friends of Tumblebee Incorporated v ATB Morton Pty Ltd (No 2) (2016) 215 LGERA 157; [2016] NSWLEC 16 GPT RE Limited v Belmorgan Property Development Pty Limited (2008) 72 NSWLR 647; [2008] NSWCA 256 Grace v Thomas Street Café Pty Ltd (2007) 159 LGERA 57; [2007] NSWCA 359 Graham John de Martino Pty Ltd v Parramatta City Council (1964) 10 LGRA 104 Gray v Minister for Planning (2006) 152 LGERA 258; [2006] NSWLEC 720 Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited (2007) 158 LGERA 1; [2007] NSWLEC 681 Greengate Consulting (NSW) Pty Ltd trading as Greengate Property Group v Ashfield Municipal Council (2008) 162 LGERA 247; [2008] NSWLEC 253 Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655 Helman v Byron Shire Council (1995) 87 LGERA 349 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Hillpalm Pty Ltd v Heaven's Door Pty Ltd (2004) 220 CLR 472; [2004] HCA 59 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 Hudak v Waverley Municipal Council (1990) 18 NSWLR 709 IGS Enterprises Pty Ltd v Hornsby Shire Council (2008) 164 LGERA 424; [2008] NSWLEC 304 John Bruce & Partners Pty Ltd v Willoughby Municipal Council (1987) 64 LGRA 67 Jojeni Investments Pty Ltd v Mosman Municipal Council (2015) 89 NSWLR 760; [2015] NSWCA 147 Jonah Pty Ltd v Pittwater Council (2006) 144 LGERA 408; [2006] NSWLEC 99 Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] HCA 20 Kindimindi Investments Pty Ltd v Lane Cove Council [2005] NSWLEC 398 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 King v Lewis (1991) 74 LGRA 362 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lake Macquarie City Council v Australian Native Landscapes Pty Ltd (No 2) [2015] NSWLEC 114 Leichhardt Council v Geitonia Pty Ltd (No 6) (2015) 209 LGERA 120; [2015] NSWLEC 51 Liverpool City Council v Main Homes Pty Ltd [2011] NSWLEC 174 Loreto Normanhurst Association Inc v Hornsby Shire Council (2002) 122 LGERA 347; [2002] NSWLEC 45 Lucas v Mooney (1909) 9 CLR 231; [1909] HCA 58 Maitland City Council v Anambah Homes Pty Ltd (2005) 64 NSWLR 695; [2005] NSWCA 455 Marrickville Council v Tanwar Enterprises Pty Ltd [2009] NSWLEC 127 Marshall Rural Pty Ltd v Basscave Pty Ltd (No 3) [2018] NSWLEC 62 Minister for Immigration and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 Minister for Immigration and Ethnic Affairs v Polat (1995) 57 FCR 98 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; [2003] NSWCA 119 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 MM & SW Enterprises Pty Ltd v Strathfield Council (2010) 172 LGERA 125; [2010] NSWLEC 8 Mollica v Shire of Bulla (1992) 9 AATR 157 Mosman Municipal Council v IPM Pty Ltd (2016) 216 LGERA 252; [2016] NSWLEC 26 Neighbourhood Association DP 285249 v Watson (2008) 162 LGERA 322; [2008] NSWSC 876 No Dump Residents Association Inc v Collex Pty Ltd (No 2) [2005] NSWLEC 136 Norman v Gosford Shire Council (1975) 132 CLR 83; [1975] HCA 15 North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470; [1996] HCA 20 North Sydney Council v Moline; North Sydney Council v Tomkinson (No 2) [2008] NSWLEC 169 North Sydney Municipal Council v Boyts Radio & Electrical Pty Ltd (1989) 16 NSWLR 50 Nymboida Shire Council v Skar Industries Pty Ltd (1998) 99 LGERA 178; [1998] NSWLEC 166 Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189; [2004] SASC 373 OSB Operations Pty Ltd Licensee of the Old Swan Brewery Restaurant v Jansen (2006) 150 LGERA 154; [2006] WASCA 270 Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21 Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632 Penrith City Council v Konemann (2017) 225 LGERA 16; [2017] NSWLEC 79 Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council 145 CLR 485; [1980] HCA 1 Prineas v Forestry Commission of New South Wales (1983) 49 LGRA 402 Progress and Securities Pty Ltd v North Sydney Municipal Council (1988) 66 LGRA 236; [1988] NSWLEC 55 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services (No 3) [2012] NSWLEC 57 R v East Sussex County Council [2003] 1 WLR 348 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Roden v Bandora Holdings Pty Ltd [2016] NSWCA 220 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 Saffiotti v Kiama Municipal Council (2017) 225 LGERA 136; [2017] NSWLEC 65 Sansom v Port Stephens Council (2006) 147 LGERA 203; [2006] NSWLEC 475 Scurr v Brisbane City Council (1973) 133 CLR 242; [1973] HCA 39 Shanahan v Strathfield Municipal Council [1973] 2 NSWLR 740 Shire of Perth v O'Keefe (1964) 110 CLR 529; [1964] HCA 37 Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd (2009) 3 ARLR 380; [2009] NSWLEC 197 Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; [2011] FCAFC 27 Sloane v McDonald Industries (Sales) Pty Ltd (1989) 17 NSWLR 86 Steedman v Baulkham Hills Shire Council (No 1) (1991) 87 LGERA 26 Steedman v Baulkham Hills Shire Council (No 2) (1993) 31 NSWLR 562 Sutherland Shire Council v Benedict Industries Pty Ltd (No 4) [2015] NSWLEC 101 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Temelkovski v Wright (2016) 218 LGERA 381; [2016] NSWLEC 112 Terranora Group Management Pty Ltd v Director-General Office of Environment and Heritage (2013) 200 LGERA 1; [2013] NSWLEC 198 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Tipfast Pty Ltd v South Sydney City Council (2002) 120 LGERA 292; [2002] NSWLEC 85 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 Vines v Djordjevitch (1955) 91 CLR 512; [1955] HCA 19 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2003) 137 LGERA 115; [2003] NSWCA 270 Warlam Pty Ltd v Marrickville Council (2009) 165 LGERA 184; [2009] NSWLEC 23 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Wells v Minister of Housing and Local Government [1967] 1 WLR 1000 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 156 LGERA 283; [2007] HCA 50 Widgee Shire Council v Bonney (1907) 4 CLR 977; [1907] HCA 11 Wilkie v Blacktown City Council (2002) 121 LGERA 444; [2002] NSWCA 284 Williams v NSW Minister for Planning (No 4) [2010] NSWLEC 222 Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Yates Property Corporation Pty Ltd (In Liq) v Darling Harbour Authority (1991) 24 NSWLR 156 Texts Cited: John Whitehouse, Development and Planning Law in New South Wales, (2012, CCH) Dennis Pearce and Robert Geddes, Statutory Interpretation in Australia (8th ed 2014, LexisNexis Butterworths) Macquarie Dictionary (3rd ed 1997) Macquarie Dictionary (Revised 3rd ed, 2001) Shorter Oxford English Dictionary (3rd ed, 1980) Category: Principal judgment Parties: Dungog Shire Council (Applicant) Hunter Industrial Rental Equipment Pty Ltd (First Respondent) Buttai Gravel Pty Ltd (Second Respondent) Environment Protection Authority (Third Respondent) Representation: COUNSEL: Mr T G Howard SC with Ms C Novak (Applicant) Mr T F Robertson SC with Mr J Lazarus and Ms J Walker (First and Second Respondents) Submitting Appearance (Third Respondent)

[1979] HCA 20

[1975] HCA 15

[1998] NSWLEC 166

[2004] SASC 373

[2006] WASCA 270

[1972] HCA 21

[1988] NSWLEC 55

[2008] SASC 260

(1987) 11 NSWLR 67

(1993) 30 NSWLR 391

(2006) 148 LGERA 439

(2013) 195 LGERA 182

(2008) 166 FCR 54

(2003) 129 LGERA 311

(2005) 64 NSWLR 58

(1999) 106 LGERA 19

(2012) 201 FCR 378

(1999) 130 LGERA 52

(2012) 187 LGERA 446

(2013) 195 LGERA 34

(2009) 74 NSWLR 733

(1985) 1 NSWLR 479

(2007) 153 LGERA 450

(1957) 97 CLR 444

(2013) 201 LGERA 116

(2004) 138 LGERA 120

(2011) 183 LGERA 382

(2014) 206 LGERA 40

(2008) 161 LGERA 77

(2000) 109 LGERA 175

(2003) 57 NSWLR 152

(2007) 151 LGERA 400

(2010) 78 NSWLR 393

(2000) 199 CLR 135

(1999) 106 LGERA 243

(1990) 170 CLR 394

(2008) 160 LGERA 251

(2012) 193 LGERA 151

(2006) 150 LGERA 81

(2012) 188 LGERA 26

(2011) 210 LGERA 300

(2001) 113 LGERA 34

(2016) 220 LGERA 43

(1993) 79 LGERA 321

(1997) 42 NSWLR 396

(1988) 46 FCR 117

(2016) 215 LGERA 157

(2008) 72 NSWLR 647

(2007) 159 LGERA 57

(2006) 152 LGERA 258

(2007) 158 LGERA 1

(2008) 162 LGERA 247

(1995) 87 LGERA 349

(2004) 220 CLR 472

(2000) 48 NSWLR 498

(1990) 18 NSWLR 709

(2008) 164 LGERA 424

(2015) 89 NSWLR 760

(2006) 144 LGERA 408

(1979) 140 CLR 675

(2006) 143 LGERA 277

(2010) 239 CLR 531

(2015) 209 LGERA 120

(2002) 122 LGERA 347

(1909) 9 CLR 231

(2005) 64 NSWLR 695

(1990) 21 FCR 193

(1995) 57 FCR 98

(1987) 9 NSWLR 154

(2003) 126 LGERA 181

(1991) 23 NSWLR 734

(2010) 172 LGERA 125

(2016) 216 LGERA 252

(2008) 162 LGERA 322

(1975) 132 CLR 83

(1996) 185 CLR 470

(1989) 16 NSWLR 50

(1998) 99 LGERA 178

(2004) 137 LGERA 189

(2006) 150 LGERA 154

(1987) 16 FCR 465

(1972) 128 CLR 1

(2017) 225 LGERA 16

(1998) 194 CLR 355

(2009) 77 NSWLR 287

(2003) 214 CLR 1

(2017) 225 LGERA 136

(2006) 147 LGERA 203

(1973) 133 CLR 242

(1964) 110 CLR 529

(2011) 190 FCR 552

(1989) 17 NSWLR 86

(1991) 87 LGERA 26

(1993) 31 NSWLR 562

(1993) 78 LGERA 404

(2016) 218 LGERA 381

(2013) 200 LGERA 1

(1999) 46 NSWLR 55

(2002) 120 LGERA 292

(2015) 89 NSWLR 268

(1991) 25 NSWLR 580

(1955) 91 CLR 512

(2003) 137 LGERA 115

(2009) 165 LGERA 184

(1987) 10 NSWLR 335

(2007) 156 LGERA 283

(1907) 4 CLR 977

(2002) 121 LGERA 444

(2001) 130 LGERA 508

(2004) 61 NSWLR 707

(1991) 24 NSWLR 156

(1972) 2 NSWLR 632

(2007) 82 ALJR 74

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Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council

Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council