Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council - [2019] NSWCA 147 - NSWCA 2019 case summary — Zoe

[30]

Environmental Planning and Assessment Model Provisions 1980, cll 5, 35, Sch 1 Cases Cited: Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Chambers v Maclean Shire Council (2003) 57 NSWLR 152; [2003] NSWCA 100 Corporation of the City of Enfield v Development Assessment Commission (1999) 199 CLR 135; [2000] HCA 5 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Currey v Sutherland Shire Council (1998) 100 LGERA 365 Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3 Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33 GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 Helman v Byron Shire Council (1995) 87 LGERA 349 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] 679 HCA 20 Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Norman v Council of the Shire of Gosford (1975) 132 CLR 83; [1975] HCA 15 Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189 Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 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 Pselletes v Randwick City Council (2009) 77 NSWLR 287; [209] NSWCA 262 Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321 Sansom v Port Stephens Council [2006] NSWLEC 475; 147 LGERA 203 Sericott v Snowy River Shire Council [1999] NSWCA 480; 108 LGERA 66 Stebbins v Lismore City Council (1988) 64 LGRA 132 Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508 Woolworths v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Texts Cited: NSW Government Gazette No 90, 9 July 1965, p 2168 Category: Principal judgment Parties: Hunter Industrial Rental Equipment Pty Ltd (First Appellant) Buttai Gravel Pty Ltd (Second Appellant) Dungog Shire Council (First Respondent) Environment Protection Authority (Second Respondent) Representation: Counsel: T F Robertson SC/J E Lazarus/J Walker (Appellants) T G Howard SC/C M Novak (First Respondent) Submitting appearance (Second Respondent)

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headnote [This headnote is not to be read as part of the judgment] From around 1915, the State Rail Authority ("SRA") operated the Martins Creek Quarry, near the town of Paterson in the Hunter Valley region. When, in about 1991, the andesite rock was fully exploited, the SRA obtained a further area of land, known as the western land. The quarry constituted a designated development for which an environmental impact statement ("EIS") was required. The SRA sought consent to operate a quarry on the western land primarily for obtaining railway ballast. The respondent Council granted consent subject to a number of conditions. A plan and an environmental impact statement submitted with the development application indicated that the quarrying would take place on a particular lot. After extraction, processing of the rock extracted was to occur on the adjoining eastern land, being the site of the old quarry. In 2007 the SRA (then RailCorp) obtained a variation of an environment protection licence granted by the Environment Protection Authority ("EPA"), permitting the extraction of 2 million tonnes per annum, an increase from 500,000. In 2012 the appellants acquired and commenced to operate the quarry. Thereafter the Council claimed that the quarrying operation was no longer primarily for obtaining railway ballast. The Council also claimed the area of land used for quarrying, the volume of material extracted and the number of trucks driving through Paterson exceeded the scope of the development for which consent had been granted. The Council initiated proceedings in the Land and Environment Court seeking declarations and injunctive relief. The primary judge found that the appellants were extracting rock other than primarily for railway ballast, quarrying beyond the area to which the consent applied, dispatching a greater percentage of material by road than was allowable and impermissibly processing rock on the western land. The judge also found that the variation to the environment protection licence by the EPA was impermissible as the relevant statutory provisions had not been complied with. Orders were made to that effect, and a conditional stay was granted. The issues on appeal were whether: (1) existing use rights qualified the effects of the 1991 consent; (2) the grant of the consent was valid and conditional; (3) to construe the consent the court could refer to the application and the EIS; (4) the consent had been breached, specifically in relation to: (i) the limiting purpose; (ii) the area of the quarry; (iii) the volume of material extracted from the quarry; (iv) condition (i), relating to the amenity of the neighbourhood; and (v) condition (vi), requiring not greatly more than 30% of the quarry output to be transported by road. (5) the 2007 variation of the environment protection licence was invalid; and (6) the conditional stay ordered by the primary judge was appropriate. The Court (Basten JA, Gleeson JA and Preston CJ of LEC), varying the orders but otherwise dismissing the appeal, held: (Basten JA; Gleeson JA and Preston CJ agreeing) In relation to issue (1):

The existing use rights were in relation to the operation of a quarry primarily for the purpose of winning railway ballast, rather than the operation of a general quarry. As such, the existing use rights terminated prior to the appellant taking control of the quarry, when the railway undertaking ceased: [30], [224], [265]. In relation to issue (2):
While the Council's initial resolution had purported to approve the development application without receiving the SRA's written approval, contrary to s 91A of the Environmental Planning and Assessment Act 1979 (NSW), such approval was subsequently provided in correspondence so as to render the consent valid and conditional: [45], [224], [265]. In relation to issue (3):
Use of the material on the statutory register of consents in construing a development consent is not inconsistent with the proposition that a consent has an enduring function which runs with the land: [56], [224], [265]. Environmental Planning and Assessment Act 1979 (NSW), ss 50, 91, 92, 93, 104 Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; 130 LGERA 508, applied. (Per Preston CJ of LEC):
The statutory scheme, including the classification of development, process of application, provision of environmental impact statements, public notice and determination, indicates a central relationship between the development consent and development application: [295]. Environmental Planning and Assessment Act 1979 (NSW), ss 4, 76, 77, 84, 86, 90, 91, 93, 95, 104. Environmental Planning and Assessment Regulation 1980 (NSW), cll 37, 38, 39, 44, 45, 70; Sch 3. (Per Basten JA; Gleeson JA and Preston CJ agreeing):
It is generally permissible to have regard to the development application and an EIS to determine the scope and nature of the proposed development for which consent was sought: [59], [62], [224], [310]. Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 ; Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; 195 LGERA 182; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield [2004] SASC 373; 137 LGERA 189; Sericott v Snowy River Shire Council [1999] NSWCA 480; 108 LGERA 66; Weston Aluminium Pty Ltd v Environment Protection Authority [2007] HCA 50; 82 ALJR 74, applied. Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; 143 LGERA 277; Stebbins v Lismore City Council (1988) 64 LGRA 132, considered. Auburn Municipal Council v Szabo (1971) 67 LGRA 427; Currey v Sutherland Shire Council (1998) 100 LGERA 365; Parramatta City Council v Shell Co of Australia Ltd [1972] 2 NSWLR 632; Ryde Municipal Council v Royal Ryde Homes (1970) 19 LGRA 321, not followed. In relation to issue (4)(i):
The terms of the consent and surrounding circumstances indicated that there was a limiting purpose, namely that the development was a quarry for "winning material primarily for railway ballast": [88], [224], [265]. Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675; [1979] 679 HCA 20, distinguished.

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Judgment BASTEN JA: Index Par A Background 1 B Present litigation 9 C History of planning controls 17 (1) Planning instruments 17 (2) Existing use rights 26 D Quarrying on the western land: the 1991 consent 35 (1) Terms of consent 35 (2) Whether consent valid and unconditional 43 (3) Construing the 1991 consent 46 (a) Statutory scheme 46 (b) Reference to development application and environmental impact statement 57 (c) Conclusions as to scope of relevant material 62 (d) Case law 68 (4) Alleged breaches of 1991 consent 81 (a) Limitation by reference to purpose 81 (b) Finding as to breach of limiting purpose 97 (c) Extraction of material from lots 5 and 6 106 (d) Quarrying on lot 6 119 (e) Alleged breach of condition (i) 122 (f) Alleged breach of condition (vi) 125 (i) Did condition (vi) purport to apply to eastern land? 130 (ii) Inconsistency with existing use rights 137 (iii) Subsequent approval of varied proportion 142 (iv) Conclusions - condition (vi) 165 E Environment protection licence 166 (1) Background 166 (2) Legislative regime for licence variation 173 (3) Grounds of review 174 (4) Assessment of preconditions 187 (a) Relevance of EPA's opinion 187 (b) Challenge to factual determination - s 50(2) 192 (c) Challenge to factual determination - s 58(6) 195 F Conclusions 205 G Discretion 213 H Costs 222 I Orders 223

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A Background

The appellants operate a quarry, known as the Martins Creek Quarry, near Paterson in the Hunter Valley region. In October 2018 Dungog Shire Council obtained orders in the Land and Environment Court restraining the current operations on the basis that they were in breach of the consent obtained under the Environmental Planning and Assessment Act 1979 (NSW) (the Planning Act). [1] This appeal challenges those orders.
Paterson is a small town on the Paterson River, a northern tributary of the Hunter River. It lies some 25km north of Maitland on the central coast. About six kilometres north of Paterson a large deposit of andesite rock was discovered more than a century ago. Because the rock was suitable for railway ballast, in 1914 the State appropriated land for the purposes of the quarry. The Martins Creek Quarry was opened in 1915 to exploit the deposit. A branch rail line allowed the rock to be transported from the quarry.
The land subject to the first quarry lay to the east of the rail siding and to the east of a dedicated road known as Station Street (the eastern land). The bulk of the eastern land (being Crown and private land) was appropriated and resumed and vested in the Deputy Chief Commissioner for Railways and Tramways in February 1914, "for the purpose of maintaining the traffic on the existing line of railway between West Maitland and Taree". That land was augmented by further acquisitions in 1952, 1958, 1963, 1975 and 1980. The first three notifications identified the public purpose as "for a stone quarry at Martin's Creek … for the use of the railways"; the fourth referred to "the extension of quarry operations at Martins Creek" and the last "in connection with ballast quarry purposes".
In 1979 a geological investigation was undertaken of an area to the west of Station Street, adjoining the existing quarry, which located a further large deposit of andesite on privately owned land. The State Rail Authority (SRA) obtained leases over three parcels of land, being identified as lots 5 and 6 of DP 242210 (the western land) and lot 42 of DP 815628 (which was not within the development application the subject of these proceedings). On 8 August 1990, the SRA lodged with the Dungog Shire Council an application for consent to develop the western land.
The application concerned designated development under the Planning Act, thereby requiring an accompanying environmental impact statement, pursuant to s 77(3)(d) of the Planning Act, as then in force. [2] The contents of such a statement were identified in cl 34 of the Environmental Planning and Assessment Regulation 1980 (NSW) (1980 Regulation). Further, notice was required to be given to occupiers of adjoining land and others who might be detrimentally affected by the development if carried out: s 84(1). These steps were taken. An "Environmental Impact Statement for proposed Railway Ballast Quarry at Martins Creek", dated 26 July 1990, (EIS) was prepared for the SRA and lodged with the development application. In addition, because the SRA was a prescribed person for the purposes of s 91A(1) of the Planning Act, [3] conditions could not be imposed without its written approval, nor could the Council refuse consent without the written approval of the Minister. [4]
On 12 February 1991 the Council granted consent, subject to conditions. The SRA was given notice of the determination by a letter dated 7 March 1991. There followed correspondence in relation to the conditions, prior approval of which had not been obtained from the SRA. Agreement was subsequently reached and amended conditions were approved by the Council at a meeting on 14 May 1991. It was common ground in this Court that the SRA had consented to the conditions between March and May 1991; however, the appellants challenged the legal conclusion that the resolution of 14 May 1991, which did not purport to redetermine the development application, amounted to a valid consent. [5] The consequence, the appellants contended, was that the consent given on 12 February 1991 was unconditional. Subject to resolution of this issue, it is convenient to refer to the consent as "the 1991 consent".
In 2009 RailCorp (a successor to the SRA) announced that the quarry was no longer needed for railway operations and foreshadowed its intention to sell its assets. In 2012 RailCorp sold its interests in the various parcels of land on which quarrying was taking place, to the first appellant, Hunter Industrial Rental Equipment Pty Ltd. The second appellant, Buttai Gravel Pty Ltd, was an associated entity of the first appellant and was responsible for conducting the day-to-day quarrying operations.
There were other steps taken of less importance, which will be noted as occasion arises. Further, there were, over the decades of the operation of the quarry, significant changes in (i) the volume of rock extracted, (ii) the purposes for which it was used and (iii) the proportion of the quarry products dispatched by road, as opposed to rail. These factual matters will be addressed in the context of their relevance to the grounds of appeal.

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B Present litigation

On 30 March 2015 the first respondent, Dungog Shire Council, commenced proceedings by way of summons in the Land and Environment Court against the appellants and the Environment Protection Authority (EPA). The summons in fact incorporated two entirely separate sets of proceedings: the first set sought to restrain the appellants from carrying out what were alleged to be extensive breaches of the Planning Act; the second involved judicial review proceedings of a decision of the EPA to vary a licence issued to the appellants which authorised the level to which the appellants were entitled to carry out their quarrying and crushing operations on the whole of the lands. In the judicial review proceedings, the judge declared that the variation was invalid and granted an injunction restraining the appellants from carrying on "scheduled activities" at a rate exceeding 500,000 tonnes per annum (tpa). The challenge to these orders will be addressed separately and after dealing with the civil enforcement proceedings under the Planning Act.
The civil enforcement proceedings under the Planning Act sought declarations and injunctions with respect to numerous alleged breaches of the Act. Separate allegations were made with respect to the western and the eastern lands. Those relating to the western land sought to identify breaches of the 1991 consent; those relating to the eastern land accepted that the area enjoyed existing use rights but asserted that there had been an enlargement, expansion or intensification of the relevant uses from 5 February 1986, when such steps were no longer permitted without planning consent. The primary judge accepted all the Council's complaints with respect to the use of the eastern land and made declarations and injunctions accordingly.
With respect to the western land, the Council alleged contraventions of the following requirements of the 1991 consent, namely: 1. extracting rock otherwise than "primarily for railway ballast"; 2. undertaking quarrying beyond an area of some 10ha on lot 5, identified on a document known as "Plan 2"; 3. extracting a volume of more than 300,000 tonnes per annum; 4. dispatching greatly more than 30% of the annual production by road; 5. dispatching more than 12 truckloads per day by road and more than 80,000 tonnes per annum by road, and 6. undertaking processing on lot 5.
The primary judge did not accept that the consent was subject to volumetric limits and hence rejected the Council's claims identified at (3) and (5) above. He made declarations and granted injunctions with respect to the other matters.
In their defence, the appellants denied that their operations, in so far as they were regulated by the 1991 consent, were restricted in the manner alleged by the Council. They further submitted that the conditions of the 1991 consent could not constrain the existing use rights enjoyed by operations on the eastern land, from which the products of the quarrying on the western land were dispatched. In the alternative, to the extent that the Council contended that the proportion of quarry products shipped by road exceeded the proportion permitted under the 1991 consent, the increase was said to be justified by approval given by the Council by conduct.
The issues raised on the appeal covered the following topics: 1. scope and operation of the 1991 consent; 2. scope and effect of existing use rights on the eastern lands; 3. whether the conditions of consent were varied or subject to approval after 1991, and 4. the validity of the variation of the licence issued by the EPA.
For reasons set out below, the primary judge did not err in granting the Council the principal relief sought with respect to breaches of the Planning Act involving the quarrying activities carried out on the western land. Although no extractive operations are now conducted on the eastern land, most of the crushing and processing of rock quarried on the western land continues to be undertaken with plant situated on the eastern land. Subject to one qualification concerning the operation of a tertiary processing plant, the appellants have no current development consent relating to operations on the eastern land. Because the only activities carried out on the eastern land since about 1993 have been the processing of rock excavated from the western land, if that source is not lawfully available, no separate issue arises as to the processing operations, nor as to the limits of the existing use rights on the eastern land. Those rights will be discussed to the extent necessary to address the appellants' submissions that the processing and dispatch of quarry products on and from the eastern land were governed solely by existing use rights, and not by the terms of the 1991 consent which related only to the western lands.
Bearing the limited purpose in mind, it is convenient to commence with an outline of the history of planning controls applicable to the eastern land.

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(1) planning instruments

The first planning controls to affect the quarry were, the parties agreed, the Interim Development Order No 1 - Shire of Dungog (IDO No 1), made under the Local Government Act 1919 (NSW). Power to make interim development orders was conferred on the Minister by the Local Government Act, s 342U. That section provided that "nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order": s 342U(4). IDO No 1 came into force, subject to that proviso, on 12 May 1967. The use of the eastern land as a quarry was protected by the proviso.
IDO No 1 adopted certain "model provisions" promulgated on 9 July 1965. [6] Clause 2(1) of the 1965 model provisions read as follows: 2. The following development may be carried out notwithstanding the provisions of the Interim Development Order:- (1) the carrying out by persons carrying on public utility undertakings, being railway undertakings, on land comprised in their undertaking, of any development required in connection with the movement of traffic by rail, including the construction reconstruction, alteration, maintenance and repair of ways, buildings, works and plant, except - (a) the construction of railways, railway stations and bridges over roads; (b) the erection of any buildings outside the limits of a railway or railway station; (c) the recreation within the limits of a railway station, but not wholly within the interior of a station, of residential buildings, offices or buildings … to be used for manufacturing or repairing works; (d) the construction or alteration of buildings outside the limits of a railway or railway station and the reconstruction or alteration, so as materially to affect the design or external appearance thereof, of railway stations or bridges or of residential buildings, offices or factory buildings within the limits of a railway or railway station, but not wholly within the interior of a station; (e) the formation or alteration of any means of access to a road. The appellants asserted that the operation of the quarry by the SRA in 1967 (and thereafter) constituted a "railway undertaking" for the purposes of cl 2(1) of the model provisions.
Following the commencement of the Planning Act on 1 September 1980, the Minister, on 26 September 1980, made and published model provisions for environmental planning instruments, pursuant to s 33 of the Planning Act (the 1980 model provisions).
On 29 May 1981 the Minister made the Dungog Local Environmental Plan No 1, which repealed IDO No 1 and, in part, adopted the 1980 model provisions: cl 5(3). Clause 35 of the 1980 model provisions stated: 35 Nothing in the Local Environmental Plan shall be construed as restricting or prohibiting or enabling the consent authority to restrict or prohibit - (a) the carrying out of development of any description specified in Schedule 1; …. SCHEDULE 1 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; and (b) the erection within the limits of a railway station of buildings for any purpose, but excluding - (c) the construction of new railways, railway stations and bridges over roads; (d) the erection, reconstruction and alteration of buildings for purposes other than railway undertaking purposes outside the limits of a railway station and the reconstruction or alteration so as materially to affect the design thereof, of railway stations or bridges; (e) the formation or alteration of any means of access to a road; and (f) the erection, reconstruction and alteration of buildings for purposes other than railway purposes where such buildings have direct access to a public place.
The wording of cl 35 was not identical with its counterpart in the 1965 model provisions incorporated in IDO No 1, but the appellants asserted the operation of the quarry continued to be exempt from planning controls as a railway undertaking.
In a number of cases dealing with the existing use provisions in force prior to 1986, the High Court held that where land could be regarded as a "unit" and where part of it was in use for a particular purpose, the whole of the land was treated as having been used for that purpose prior to the relevant planning instrument coming into effect. [7] The physical use of the land could therefore be expanded or intensified without the need for planning consent. That situation was changed with the commencement, on 3 February 1986, of amendments to provisions in the Planning Act. Those provisions amended ss 107 and 109 to require consent for alterations or extensions of works which otherwise constituted existing uses. To the extent the railway undertaking, and now the appellants, relied upon these existing use provisions, the level of activity permitted without consent therefore crystallised on 3 February 1986.
The exemption for railway undertakings ceased with the adoption of the Dungog Local Environmental Plan 2014. However, the appellants accepted that the land ceased to be used as a railway undertaking, either in 2009 when RailCorp announced that the quarry was no longer needed for its purposes, or in 2012 when it sold its assets to the first appellant. At a date no later than 2012, the eastern land became the subject of planning controls, and the existing use rights crystallised.
These provisions thus gave rise to two questions, namely whether, and if so for how long, the operation of the quarry constituted a "railway undertaking" for which consent was not required; and secondly, the point in time at which the use crystallised as an existing use.
No quarry existed on the western land before the commencement of the Planning Act; subject to the appellants' submission that the processing and dispatch of rock always took place on and from the eastern land, the earlier history of planning controls was not relevant to the western land.

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(2) Existing use rights

For reasons explained below, the existing use rights attaching to the eastern land do not govern the scope and nature of the activities which the appellants currently conduct on either the eastern or western lands. However, because orders were made based on those rights, which were challenged on the appeal, it is convenient to address the submissions as to the content of those rights in outline.
As noted above, existing use rights may generally be taken to have been frozen at two dates, namely as to the nature of the use, when planning controls first prohibited such activities on the land, either absolutely or subject to consent; and, as to scope and intensity of the use, in February 1986 when the Planning Act was amended to require consent with respect to the extension or enlargement of such rights. However, the appellants submitted that they were not subject to any prohibition on development without consent whilst the quarry on the eastern land constituted a railway undertaking, and was therefore exempt from any consent requirement.
The appellants did not contend that the operation of the quarry by the SRA on the western land involved a "carrying on railway undertakings", so as to be exempt from planning controls. They accepted that consent was required for the development of the quarry on the western land. [8] The contention was limited to the eastern land, all of which, when used for both excavation and processing, had been resumed for "railway purposes". The appellants submitted that the eastern land ceased to be used for a railway undertaking upon its sale in December 2012 or, if that were not accepted, December 2009 when, in the course of negotiations with the Council in relation to the dispute over the level of extraction and the dispatch of material by road, RailCorp issued a press release announcing its intention to sell the quarry "because the ballast produced at the site is surplus to its needs."
If the subjective intention of RailCorp were the relevant criterion, it should be accepted that the land had ceased to be used for a railway undertaking at least by December 2009. If one were to look at railway ballast as a proportion of the total output from the quarry, after remaining stable between 75% and 85% from 1968 to 1988, it commenced a slow decline, falling below 50% in 1995 and below 30% in 1997 (26%). Thereafter it never exceeded 25%.
However, the appellants contended that, even if the quarry were not being operated primarily for the production of railway ballast, it did not necessarily cease to be the carrying on of a railway undertaking. Although it may be accepted that the characterisation of the undertaking being carried on did not necessarily define the existing use right, it did not follow that there might not be a material connection between the railway undertaking and the existing use right. In other words, the fact that exemption from the planning laws depended upon the carrying on of a railway undertaking would at least be consistent with the definition of the existing use right as being primarily for obtaining railway ballast, rather than the operation of a general quarry. On that basis the existing use right terminated when that purpose ceased.
If the carrying on of a railway undertaking continued after 1997, nothing much turns upon whether the relevant date was 2004, 2009 or 2012. In both 2004 and 2012 annual extraction rates were running in the order of 800,000 tpa; between 2004 and 2011 they were running at variable rates between 600,000 and 800,000 tpa. However, prior to 1999 the relevant volumes were between 200,000 and 400,000 tpa.
The relevance of these figures depends on the relevant use. On the one hand, if the relevant existing use were extraction, that ceased on the eastern land in about 1993. In February 1986 it appears that the volume being extracted was a little above 200,000 tpa and in 1993 it was approximately 400,000 tpa. By 1997 the volume had fallen below 300,000 tpa, but the rock was then being extracted from the western land. For the purposes of an extractive use, the appellants obtain no benefit from a date after February 1986; since no extraction now takes place on the eastern land, there is no extant use for that activity.
If, on the other hand, the relevant existing use involved processing operations and dispatch of quarry products, the benefits of a later date were considerable. For example, the volume processed to a finished product in 1986 was 245,000 tpa; the relevant figure in 2009 was 633,000 tpa, and by 2012 it had risen to 834,000 tpa. On the basis that the SRA had ceased to exploit the available resource primarily for railway ballast by 1997, the better view is that it was no longer being conducted as a railway undertaking by that date. Production at that time was under 300,000 tpa. It is clear from the terms of the model provisions that by no means all activities of the SRA were railway undertakings.
If that conclusion were not to be accepted, the land was patently not required for railway purposes after 2009. The evidence did not disclose any basis for an intermediate date between 1997 and 2009.

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(1) Terms of consent

As will be noted below, the parties were at issue over the material which could be relied upon in construing the scope of the 1991 consent. Thus, although it forms the termination of a process, it is appropriate to commence with the consent itself. The Council had before it, at a meeting held on 12 February 1991, an extensive report from the Council's town planner with respect to development application 171/90/79. The determination of Council commenced in the following terms: "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 off Station Street Martins Creek Parish Barford County Durham subject to the following conditions …."
The conditions which were included in that resolution had not been considered by the SRA, as required by s 91A of the Planning Act. Section 91A of the Planning Act, as then in force, provided: Determination of development applications by Crown etc 91A (1) A consent authority, in respect of a development application made by or on behalf of the Crown or a prescribed person - (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. As a public authority, the SRA was "a prescribed person" pursuant to cl 41B(1) of the 1980 Regulation. [9] It may be accepted that the conceded failure to comply with this provision rendered invalid the conditions adopted by the resolution of 12 February 1991.
Following that meeting, on 1 March 1991, the State Pollution Control Commission (the predecessor of the EPA) granted a licence to the SRA with respect to grinding and milling works involving more than 200,000, but not more than 500,000, tpa. This was the first such licence (EPL 1378), which was later varied to increase the volumetric scale, the variation becoming the subject of judicial review proceedings.
On 7 March 1991 the Council gave notice, pursuant to s 92 of the Planning Act, of the 12 February resolution determining the development application. On 15 April 1991 the SRA responded, noting that it was pleased to receive Council's consent for the development application, but stating that the Authority "cannot accept many of the conditions imposed." This appears not to have been the first response, as a later letter (dated 19 April 1991) referred to a meeting that had occurred on April 11. There was a further meeting on April 17 at which it appears agreement was reached as to the appropriate conditions, as acknowledged by the SRA in its letter to the Council of 18 April 1991. Nevertheless, a significant further response, referring to matters raised in the earlier of the two meetings, was provided by letter dated 19 April, which enclosed two copies of a document which had been part of the environmental assessment process, known as Plan 2, annotated to indicate the scope of the expected works at particular periods in the future. (This document became central to the Council's case as to the scope of the development and will be addressed below: it is annexed to these reasons.)
On 14 May 1991 there was a further meeting of Council which had before it an updated report by the town planner, noting the determination of 12 February 1991 that consent be granted, but attaching amended conditions. A resolution of Council accepted the proposed amended conditions.
The appellants have vacillated as to their position with respect to the 1991 consent. In their amended defence they alleged that the failure to obtain the consent of the SRA to the proposed conditions prior to granting consent on 12 February 1991 meant that the grant was effective, but without conditions. [10] Further, absent an application to modify the consent in accordance with the procedures under s 102 of the Planning Act, the resolution of 14 May 1991 was said to be ineffective to impose conditions. The appellants asserted that the SRA had never in fact given written approval to the conditions adopted on 14 May 1991. The result was an unconditional consent. In this Court, the appellants accepted that it could be inferred as a fact that the SRA had approved the conditions adopted on 14 May 1991; the legal effect remained contentious. [11]
The revised conditions need not be repeated in full. As to issues (1) and (2) noted at [11] above, the purpose and the area of operation did not depend on the conditions. The primary judge rejected the Council's arguments with respect to issues (3) and (5) on the basis that there were no conditions controlling the annual volume of rock which might be extracted. With respect to issue (4), the critical condition was (vi). The Council also placed significant reliance in the course of argument on condition (i). Condition (xiv) had some relevance to the area within which quarrying operations could be conducted. It is sufficient for present purposes to set out those conditions: "General (i) 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; … Product Transportation (vi) 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. … Set-backs from boundaries (xiv) No quarrying operations, other than haul road, are to be carried out within 20 metres of any external boundary of the land."
Condition (xiv) was the subject of a later variation. As appears from the aerial photograph with cadastral indicators superimposed (attached to this judgment), lot 5 was shaped as a panhandle with lot 42, also controlled by the appellants, at the point where the lot turns south. The 20 metre setback was amended so as not to apply to the boundary with lot 42. Nothing turned on that for the purposes of the proceedings.

[40]

(2) Whether consent valid and unconditional

There was an element of confusion in the findings of the primary judge with respect to this issue. The judge concluded, correctly, that the resolution of 12 February 1991 was not effective to grant a conditional consent, absent the written approval of the SRA. The judge further held that approval was given by the SRA to the amended conditions between February 1991 and May 1991. [12] The judge found, more specifically, that the SRA conveyed its written approval of the proposed conditions by letter dated 18 April 1991. Accordingly, the judge concluded that the process of determining the development application was completed by the grant of a valid conditional consent on 14 May 1991, notice of which was conveyed to the SRA by letter of 21 June 1991. [13]
In their written submissions, the appellants noted that the judge had described the letter of 21 June 1991 from the Council enclosing a copy of the revised conditions as satisfying the terms of s 91A(1)(b). The reasoning of the primary judge should not be so understood: patently a letter from the Council to the SRA could not constitute written approval by the SRA. Elsewhere the judge made it clear that it was the letter of 18 April from the SRA which constituted written approval of the revised conditions, sufficient to satisfy s 91A(1)(b).
The submission that the Council had granted an unconditional consent on 12 February 1991 should not be accepted. Neither the SRA nor the Council thought that that had happened. Rather, what in fact happened was a step in a process which was not completed until the Council meeting of 14 May 1991. The resolution of 12 February purported to grant conditional consent, but without the necessary agreement of the applicant to the conditions. That omission was rectified and a further resolution with revised conditions was adopted by Council. There is no basis for treating the first step in the process as the final event: the law does not require that a consent authority act through a single resolution. The judge correctly held that consent had been granted and that the terms of the consent involved the resolution of 12 February, absent the conditions, together with the conditions adopted on 14 May 1991.

[41]

(a) Statutory scheme

It is necessary to identify the legal principles by which the development consent should be construed. That is because there was disagreement (the precise extent of which is not easy to describe) as to the use which could be made of documents other than the Council resolution granting consent, in order to understand the scope and operation of the consent and the conditions. In particular, there was a question as to the extent to which reference could properly be made to the development application and the EIS which accompanied it.
The discussion in the cases in which this issue has arisen have tended to describe any document other than the document recording the decision of the consent authority as "extrinsic material", adopting a principle that reference can generally only be made to extrinsic material to the extent that it is "incorporated" into the decision. This language appears to have attained the status of an established legal principle, and was deployed in argument with limited regard to the statutory scheme within which it necessarily operated.
As the history of the planning laws set out above demonstrates, the Planning Act adopts a tripartite characterisation of the uses to which land may be applied, [14] namely (i) development permitted without consent, (ii) development that needs consent and (iii) development which is prohibited, for which no consent can be provided.
The important category for present purposes is the second, namely development which can occur, but only with consent. However, not all such development is dealt with by a single process. Thus, relevantly for present purposes, the proposed quarry on the western land was a designated development and the application was required to be "accompanied by an environmental impact statement in the prescribed form". [15] The significance of that characterisation is that the Planning Act made provision for notice to be given of the development application to persons owning or occupying adjoining land, [16] and for the provision of public notice, including in a newspaper circulating in the locality. [17] The development application "and documents accompanying that application" were to be available for inspection; [18] and persons were entitled to lodge grounds of objection to the development application. [19] Where objections were lodged, they were to be referred to the Secretary of the Department, and the Minister was then to determine whether a public inquiry should be held with respect to "the environmental aspects of any proposed designated development the subject of a development application". [20]
Disregarding for present purposes the fact that this was "designated development", the statutory scheme justified the characterisation of a consent by Spigelman CJ in Winn v Director-General of National Parks and Wildlife: [21] "[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."
In order to construe a document in accordance with its "enduring functions" it is necessary to have regard to the manner in which the determination of the consent authority is made available to the public. In 1991, s 104 of the Planning Act required that the Council maintain a public register of consents: Register of consents 104. (1) A council shall, in the prescribed form and manner (if any), keep a register of consents granted under this Division and of decisions on appeal from any determination made under this Division. (2) The register referred to in subsection (1) shall be available for public inspection, without charge, at the office of the council during ordinary office hours.
The 1980 Regulation made such provision for the purposes of s 104(1) in the following terms: Register of consents 50. (1) The register of consents required by s 104 of the Act to be kept by a council shall contain in relation to each consent the following information: (a) a copy of the development application which has been determined under s 91 of the Act by the granting of the consent; (b) a copy of the notice given under s 92 of the Act of the determination granting the consent; … (e) the date on which the consent becomes effective ascertained in accordance with s 93 of the Act …. The regulation also made provision for modifications, surrender and revocation of the consent to be recorded on the register. Where there had been a decision of the Land and Environment Court on appeal, a copy of that "decision" was to be included on the register.
Two further provisions should be noted by way of explanation of the reference in cl 50 to the "notice" given under s 92. First, a determination was made under s 91 which relevantly provided: Determination of development application 91. (1) 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.
The mechanism for making the determination depended upon the procedures of the particular consent authority. In relation to a local council, those procedures involve the formulation of a resolution which is put to the vote of councillors at a properly constituted council meeting. Decisions of the council are recorded in the minutes of the meeting. However, those minutes are not included on the public register, nor is there provision in the Planning Act for the minuted resolution to be provided to the applicant for consent. Rather, notice is provided in the following manner: Notice to applicant of determination of development application 92. (1) Notice of a determination under section 91 shall be given to the applicant in the prescribed form and manner. (2) Where the determination is made by the granting of consent subject to conditions or by the refusing of consent, the notice referred to in subsection (1) shall - (a) indicate the reasons for the imposition of the conditions or the refusal; and (b) notify the applicant of the provisions of this Act conferring a right of appeal against the determination.
The date from which the consent operated was determined pursuant to s 93. Except in the case of designated development, that was the date "endorsed", as prescribed, upon the notice referred to in s 92: s 93(1)(a). In the case of designated development it was a date 28 days after the endorsed date of consent on the s 92 notice: s 93(1)(b).
It is not necessary to consider for present purposes how a discrepancy between the minuted resolution of the Council and the s 92 notice should be resolved in proceedings between the applicant and the consent authority. [22] What is clear, however, is that the primary source of information, both for the applicant and the public at large, will be the material contained on the statutory register of consents. From that it may be inferred that there will be no necessary inconsistency between the proposition that a consent has an enduring function, running with the land, and the use of material required to be placed on the public register for the purpose of understanding the scope and operation of the consent.

[42]

(b) Reference to development application and environmental impact statement

With respect to the development application, not only can there be no objection in principle to referring to it in order to understand the scope of the development to which consent was granted, but it will be commonly be the case that such reference is available. Nor is it necessary to find ambiguity or uncertainty in the terms of the consent before having reference to the development application. As noted by Beazley JA (Handley and Powell JJA agreeing) in Sericott Pty Ltd v Snowy River Shire Council: [23] "[46] The consent granted can, of course, be no wider than the application to which it relates." To similar effect, the High Court stated in Weston Aluminium Pty Ltd v Environment Protection Authority: [24] "[14] Thirdly, in 1981, s 91(1) of the EPA Act provided that a development application was to 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.' 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.
In Mison v Randwick Municipal Council [25] Priestley JA said that "if a condition imposed upon a purported consent to a particular development application has the effect of significantly altering the development in respect of which the application is made, then the purported consent is not a consent to the application." Clearly such a determination cannot be made without reference to the application.
Accordingly, it should generally be permissible to have regard to the development application for the purpose of determining the scope and nature of the proposed development for which consent was sought, if that is in issue.
The next issue is whether it is permissible to have regard to the EIS, for the same purpose. The parties considered whether an environmental impact statement will be included on the public register in accordance with cl 50 of the 1980 Regulation. The Council submitted that it should be included because it was, in effect, part of the development application. The Council noted that the prescribed form in which this development application was to be submitted [26] required (i) a description of the development for which consent was sought; (ii) that "plans/drawings and other information (in triplicate) describing the development must accompany the application"; (iii) that the applicant provide a statement of the "environmental impact of proposed development"; (iv) that the application was to be "accompanied by" an environmental impact statement, [27] and (v) that the 1980 Regulation provided for the form in which an environmental impact statement was to be lodged, namely form 4.
The appellants submitted that for the purposes of the register, it was clearly appropriate to draw a distinction between the development application itself (which was to be included on the register) and those documents which were required to accompany the development application, which were not to be included on the register. The correctness of that submission may be doubted, but the point is not determinative for present purposes.

[43]

The determination of the scope and operation of the development consent in the present case should be approached on the following basis. 1. The notice given pursuant to s 92 of the Act stated that it was notice 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 …." 2. Although some details are then provided, it is appropriate to look at the development application which, together with the notice, is required to be placed on the public register, in order to understand the scope of the proposed development. 3. As may be expected, the development application provides more detail of the proposed development. Importantly, although the notice identified the property the subject of the proposed development as lots 5 and 6 in DP 242210, having an area of 52.5 ha, the development application identified the area of the proposed development as being about 10 ha. It did not, however, identify where on the two lots the development was proposed to take place. 4. The development application form provided that the full description of the development could be included in the separate information provided in the EIS. 5. It should therefore be permissible in this case to look at the summary of the proposed development contained in the EIS, whether or not it is itself to be found on the public register.
If it were necessary to find that the development application was "incorporated" into the development consent, the proper conclusion is that it was so incorporated. The reference to it at the commencement of the determination is not merely a passing reference; it is a precise reference to the matter which is the subject of the determination and which provides the limits of the function being exercised by the Council as the consent authority. Further, it is not appropriate to characterise the development application as "extrinsic material", even if not incorporated, because it forms part of the public register. It is thus a document which is not only available but which would readily form part of a search undertaken by a prospective purchaser of the land.
So far as the EIS is concerned, if it were necessary to determine the issue, the proper finding is that it is incorporated into the development application to the extent that it provides a full description of the proposed development. To that extent only, the statement is expressly incorporated into the development application. In reaching that conclusion, it is significant that an environmental impact statement is not a private document available only to the applicant and the consent authority, but a document prepared for the purposes of public notification and possibly a public inquiry.
The Council supported this approach and outcome, if not the precise reasoning. It further submitted that such an approach was not inconsistent with authority. However, it also submitted that, if the approach were inconsistent with authority, that authority should be reconsidered. For the reasons which follow, the better view is that the approach is consistent with authority, particularly when proper regard is had to the statutory scheme.
Before considering the case law with respect to the Planning Act, it is helpful to note an analogous situation which would arise were there to be a challenge to the validity of the consent. Absent a privative clause, the Court's supervisory jurisdiction would extend to error of law on the face of the record. Disregarding the statutory expansion of the record effected by s 69(4) of the Supreme Court Act 1970 (NSW), Craig v South Australia held that the record was confined to (but included) "the documents initiating and defining the matter in the inferior court and the impugned order or determination." [28] Recognising that a consent operates as a description of the permissible use of particular land, no more precise categorisation can identify the limits of the material available in construing a consent.
While Craig was dealing with an inferior court, the principle was equally applicable to any other body which was subject to the supervisory jurisdiction of a superior court exercising power to issue a writ of certiorari. The development application and documents accompanying it should fall within the category of "documents initiating and defining the matter" for determination.

[44]

(d) Case law

Turning to the authorities dealing with the operation of the Planning Act, reference has already been made to the judgment of this Court in Sericott and the judgment of the High Court in Weston Aluminium. The restrictive approach is conventionally traced to the following passage in the earlier judgment of Hope J in Auburn Municipal Council v Szabo: [29] "The question arises whether, in order to determine what development that consent authorised, one is required or permitted to go to the application for approval or to any other document. This matter was considered by this Court in Ryde Municipal Council v Royal Ryde Homes [30] and by [the Court of Appeal for England and Wales]. It is apparent from these decisions that in determining what a council has approved, one primarily looks at the document constituting the approval, and construes it. The necessity to do this arises, inter alia, from the fact that a development approval does not enure only for the benefit of the applicant. It enures for the benefit of all future owners or occupiers, and it would create a confusing and difficult, if not impossible, position if in order to determine what a council had approved one had to go to a whole series of documents and try to determine which of the documents and which part of any particular document the council intended to incorporate in its approval. … In particular, it is not possible to go to the form of application for approval unless in some way that document has in whole or in part, expressly or by necessary implication, been incorporated in the consent."
This very general statement should be read and applied with caution, for a number of reasons. First, it did not purport to apply to a legislative regime similar to that in the Planning Act, which it predated by a decade. Secondly, it placed emphasis on the practical problems which would arise were the construction of the consent to be considered by reference to other documents. That problem is diminished, if not removed where there is a public register which includes at least the development application. Thirdly, the principle stated is qualified by reference to "one primarily looks at"; the possibility of express or implied incorporation and the possibility of reference to other material denies the universality of the principle.
Finally, the authority for the principle was derived, so far as New South Wales law was concerned, from the judgment of Else-Mitchell J in Ryde Municipal Council v Royal Ryde Homes. The question in that case was whether a consent was subject to any condition restricting the times within which the premises could operate as a laundry. The resolution of council simply approved the application (subject to relevant consultation with the State Planning Authority, which it was required to carry out under the relevant planning scheme). Although there was reference to conditions being recorded "in the Council's register" the relevant conclusion was that a statement of fact or assertion of intention contained in an application was not necessarily to be treated as a condition of the consent. Else-Mitchell J stated: [31] "I have no doubt that … a consent can incorporate conditions contained in another document. But the mere approval of an application does not, I think, necessarily have the effect of incorporating all the matters stated in the application." There is no general principle contained in this judgment to the effect that reference could not generally be had to the application to determine the scope and nature of the consent.
In Parramatta City Council v Shell Co of Australia Ltd [32] Hope JA (with the agreement of Jacobs P and Manning JA) considered whether a planning approval might be ineffective because the plans which accompanied the application were deficient, noting that "no question has been raised, nor indeed could be raised, that the consent was invalid because of the lack of drawings showing further particulars of the development." To explain that proposition, Hope JA continued: "As has been held, it is not permissible, in order to determine what development has been approved, to construe the document constituting the approval in the same way as if it evidenced some inter partes transaction, for development approvals operate, as it were, in rem and may be availed of by subsequent owners and other occupiers of the land. 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. Thus evidence of the nature of the site would always be admissible for this purpose, as would be, in appropriate cases, evidence as to the meaning of the marks on plans, or indeed, the meaning of the absence of particular marks."
This reasoning reflected that adopted in Szabo, but now with the authority of this Court, and left open the undefined scope of evidence admissible for the purpose.
A similar approach was adopted after the commencement of the Planning Act (in 1980), the continuing primary emphasis being on the nature of the consent, rather than the statutory scheme under which the consent was granted. However, in Stebbins v Lismore City Council [33] a submission was noted and addressed in the following passage, which did have regard to part of the statutory scheme: [34] "Mr Tamberlin QC, senior counsel for the appellants, referred the court to a number of authorities in support of the proposition that the form of notification itself constituted the relevant development consent. In addition he directed the court's attention to s 104 of the [Planning Act] which requires councils to keep a register, open to the public during ordinary working hours, of such consents. This was, he contended, important, because it emphasised the fact that development consents operate, in effect, in rem and may be availed of by subsequent owners and other occupiers of the land: see Parramatta City Council v Shell Co of Australia Ltd …."
The Court did not determine the correctness of that submission and what assistance might be derived from s 104. However, the notification before the Court involved a return of the plan of the proposed development which had been part of the development application, with a stamp suggesting an amendment. The Court continued: "The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application. Similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan on which, at the time of consent, a marking had been placed showing that the development being approved did not include the new entrance. Read together the documents returned to the appellants informed them that the works shown on the plan were the subject of the development consent except insofar as an amendment was required in relation to the new entrance to the Bruxner Highway. … If the written notice of consent alone is to be regarded as the consent so that it alone would appear on the public register the fact inescapably remains that it could not be understood by a searcher without recourse to the application itself, including the accompanying plans. The searcher wishing to gain a full appreciation of the terms of the consent would then see a plan showing that no approval had been given to the new entrance."
It is in fact by no means uncommon to find the court considering the terms of a development application, including documents forming part of the application, when dealing with the validity of a consent. In Currey v Sutherland Shire Council [35] this Court considered a proposed subdivision of lot 4 in a plan, the result of which would, for two of the subdivided lots, require access over lot 1. No consent was obtained from the owner of lot 1. The Court (Stein JA, Mason P and Handley JA agreeing) held that it was plain from the development application that the proposed development was limited to the subdivision of land in accordance with the proposed plan and that no development was proposed on lot 1. Accordingly the consent of the owner of lot 1 was not required. That conclusion was identified by reference to a letter referred to in the development application and attached to it. The letter was treated, in accordance with the principles in Szabo, as having been incorporated into the development application. [36]
A further example of detailed reference to a development application and accompanying documents, for the purpose of considering a challenge to the validity of conditions of consent, was undertaken in Kindimindi Investments Pty Ltd v Lane Cove Council: [37] [33] Pursuant to clause 50(1)(a) of the [Regulation] a development application must contain prescribed information and be accompanied by specified documents, as identified in Part 1 of Schedule 1 of the [Regulation]. Clauses 1 and 2 prescribe, respectively, the information to be included in the development application and documents to accompany the development application. In part, the accompanying documents are designed to provide a better indication, or at least an indication in a different form, of information required to be contained in the application. Thus, the first two specified documents are: '(a) a site plan of the land, (b) a sketch of the development.' [34] However, other accompanying documents, including a statement of environmental effects (par (c)) tend to serve a different purpose, namely providing information as to effects of a development which will be relevant to the matters to be considered by the consent authority under s 79C of the [Planning] Act. In other words, some of the accompanying documents may properly be understood as providing information required for the identification of the development, whereas other documents fall into a different category. To that extent, there is force in the argument put by the Appellant that in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development. [35] Given the complexity of the present proposal, the application form stated, under the heading 'Description of Proposal', - 'see Statement of Environmental Effects prepared by JBA dated July 2004'. … It follows that, in the present case, the description of the proposal is almost entirely dependent upon reference to the statement, and therefore to the plans included with the statement. It is those plans to which express reference is made in condition 1 …. It is those plans to which certain alterations or modifications are required to be made by the conditions of consent. It follows that the conditions of consent, and therefore the consent itself, will be meaningless unless taken to incorporate those plans."
Further authorities were considered by this Court in Allandale Blue Metal Pty Ltd v Roads and Maritime Services. [38] With one qualification, the statements as to authority contained in those passages may be accepted. The qualification is that it is no longer appropriate to have regard to what this Court (in my judgment) said in Weston Aluminium, [39] that judgment having been reversed by the High Court with reasoning incorporating reference to the use of the development application in construing consent, as noted above.
As noted by Meagher JA in Allandale at [48] there appears to be much common sense in the observations of Doyle CJ in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield: [40] "It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle 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. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to 'details and plans' submitted as part of the application." While the case may have been capable of disposition on the basis stated on the last sentence set out above, the Chief Justice was stating a broader principle in the preceding sentences.
The Council submitted that the facts in Allandale bore some relationship to the present circumstances, in that consent had been granted to the development of a quarry on a large area of land (identified as 500 acres or some 200 ha) accompanied by a plan indicating an intention to quarry some 40 ha. Meagher JA concluded with respect to this issue: "[55] These considerations lead me to conclude that, properly understood, the references to the 'quarry' in the consent, especially in Conditions 8, 9 and 10, are to a specifically designated and definite area which is not the whole of the site. The location and size of that area are not described in, and cannot otherwise be identified from, the letter of consent. For that reason, it is necessary to go to the application for development approval in order to identify the area referred to. That is permissible in accordance with the principles referred to above because by using that expression without identifying the area, the consent must be taken necessarily to incorporate the development application for the purpose of identifying that area." Ward JA, in similar terms concluded: "[201] For the reasons above, I am of the view that reference may permissibly be made to the development application and documents accompanying it (in particular, the Indicative Plan) when construing the development consent as this is necessary to resolve the ambiguity as to the area in respect of which quarrying was approved and that, having regard to those documents, Sheahan J did not err in answering the stated question in the affirmative."
These authorities, while addressing the construction of the consent by reference to general principle, rather than the statutory scheme within which consents are sought, granted and operate, is not inconsistent with the approach adopted above. It follows that regard may, and should, be had to the terms of the development application to identify the designated development for which consent was sought. Reference to that document in turn requires consideration to the more complete description of the proposal in the EIS. On the other hand, there may be statements in both the development application and the EIS which suggest limitations on the scope of the proposed development, but which should not be construed as confining the scope of the proposed development application. The application of these principles is best addressed in the course of considering the alleged breaches of the 1991 consent.

[45]

(a) limitation by reference to purpose

The first order sought by Council in the Court below was a declaration that the consent "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." The judge made an order in those terms, which is challenged by the appellants. They submitted that the relevant use of the land was for "an extractive industry being a quarry" without reference to the commercial purpose for which the rock was to be used.
In this respect, the Council's argument was grounded squarely upon the terms of the notice of consent itself, which identified the development in the following terms: [41] "An Extractive Industry ('Designated Development') being a quarry, winning material primarily for railway ballast."
The appellants' case, which was rejected by the primary judge, sought to read the words following the comma ("winning material primarily for railway ballast") as not part of the description of the use for which consent was granted. The appellants did not rely upon any other aspect of the consent or the conditions to support that construction. Rather, they relied upon the propositions that planning law (i) is not concerned to regulate matters of commerce, nor (ii) to depend upon the subjective intention of the user. At trial they sought support from Kentucky Fried Chicken Pty Ltd v Gantidis, [42] and Jonah Pty Ltd v Pittwater Council. [43] The trial judge also noted that reference had been made to the proposition that "words used to describe a proposed development in a [development application] are not determinative of its proper characterisation" for the purposes of construing a planning instrument. [44]
This Court was not taken to cases in relation to the construction of words in a development consent in the sense presently relevant. Most of the cases referred to involve the proper description of an existing use, or the construction of permissible and prohibited uses in zoning provisions in planning instruments.
It may be accepted that a consent should be construed having regard to the permissible purposes of a planning instrument: Kentucky Fried Chicken provides an example. Although primarily concerned with an alleged failure to take a mandatory consideration into account, there were observations as to what might constitute a dividing line between permissible and impermissible considerations. Thus, Barwick CJ stated: [45] "… economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter. … Restraint or prevention of economic competition is not, in my opinion, part of the orderly and proper planning of the zone …. The expression in ground 5(c) of the order nisi, 'the economic viability of the adjoining area', is at best ambiguous. If it means simply the effect of competition by the proposed use with existing uses of property in the area, it does not express a relevant ground. If it means that the proposed use will be destructive of the amenity of the neighbourhood, giving amenity a wide connotation, it may afford particulars of a general ground relating to the maintenance of the amenity of the neighbourhood."
Stephen J in Kentucky Fried Chicken (with whom Gibbs, Mason and Aickin JJ agreed), put the point as follows: "If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration."
To encapsulate those statements as being that "planning law is not concerned to regulate mattes of commerce" is to recast the more nuanced explanations given in Kentucky Fried Chicken. Nor does such a generally stated proposition assist in construing the development consent, unless it can be contended that a limitation as to the use to which quarry products are to be put is not a legitimate town planning consideration; the broad statement does not assist in construing the scope of the development approved by the 1991 consent.
A number of considerations require the rejection of the construction proposed by the appellants. First, the exclusion of express words of qualification would require a solid basis in the instrument itself, in the application or in the surrounding circumstances.
Dealing first with the terms of the consent, the particular extractive industry, quarrying, involves crushing, grinding and a degree of processing of the extracted rock. That in turn involves the use of machinery and, potentially, other products involved in the processing. The production of railway ballast involves a particular form of processing required to obtain rock of a particular hardness and size. The end purpose therefore identifies an aspect of the development to which consent was given.
Further, as has been noted, condition (vi) related to the percentage of the quarry products to be transported from the site by rail, rather than by road. Although, no doubt, rock for railway purposes could be transported by road and quarry products used for other purposes could be transported by rail, the imposition of condition (vi) gives support to the view that the limitation of winning material "primarily for railway ballast" was an essential element of the consent.
Turning to the application, it would have been legitimate for the appellants to rely upon the development application to support that it contained no such limitation as to use. Equally, it must be relevant that the brief description of the proposed development in the development application was "quarry for railway ballast".
While asserting the principle that no reference should be made to the EIS to construe the consent, at least absent ambiguity in its terms, the appellants did in fact rely upon the EIS to support their contention that the proposed development had been for a general extractive industry. They referred to a statement in the EIS to the following effect: [46] "The development will continue to supply rail balast [sic] and quarry products for use by the S.R.A., and also locally and regionally to local councils, other state government bodies and private industry. The existing quarrying operation is a significant factor in the local and regional economy as a source of direct and indirect employment and as a supplier of quarry products." There were further references in the EIS to "the supply of rail ballast and quarry products." [47] However, none of these was inconsistent with the proposition that the primary use, as described in the EIS, was to extract railway ballast. Thus, the first of the development objectives was "to establish a rail ballast quarry adjacent to the existing Martins Creek quarry". The introduction to the EIS stated that: "The quarry at Martins Creek … is one of three railway quarries within the State producing as their main product railway ballast. … 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 operation at Martins Creek is retained."
Turning to context, it is relevant that the applicant was the SRA, not an enterprise generally engaged in the business of quarrying. The SRA, it might be inferred, wished to use the quarry primarily for its statutory purposes of constructing and maintaining railways in New South Wales, not as a general quarry.
Again, if it were permissible to go beyond the documents identified above to consider the context in which the application was made, it is apparent that in the years immediately prior to the application more than 60% of the product of the quarry had been railway ballast (being as high as 85.9% in 1979/80 [48] ), and approximately 60% in the year prior to the submission of the application. [49] (It is perhaps not permissible to take it into account except to demonstrate a continuing practice, but in 1992/93, after the 1991 consent was granted, the proportion of ballast was 69%.)
It is not necessary to consider whether matters of context can be taken into account in construing the consent; if they could, they do not assist the appellants' case.
Separately, and perhaps tendentiously, the appellants argued that the primary judge had fallen into error in using a short-hand expression in frequently describing the development as a "railway ballast quarry". Use of that phrase, which is also to be found in the EIS, [50] and is very similar to the phrase used in the development application, demonstrated no error. There was no suggestion that the primary judge was intending to suggest that the quarry could only be used for that purpose; it was not in issue that there were by-products from extracting railway ballast for which there were markets to which the product could be directed. Rather, as the primary judge concluded: "[196] 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."

[46]

(b) finding as to breach of limiting purpose

The trial judge accepted the Council's case that by 1998 only 23.7% of the quarry's output was railway ballast and that, since the appellants have operated the quarry, less than 10% of total output was for rail ballast. [51]
On appeal, the appellants did not challenge those findings. Rather they relied upon the proposition that the terms of the consent did not require that the primary purpose of the quarry be production of railway ballast. The supposed error lay (i) in characterising the quarry as a "railway ballast quarry"; (ii) by taking into account the tertiary processing of product on the eastern land; (iii) by failing to have regard to the fact that "the works on the western lands would be no different whether or not a majority of product was used for railway ballast" and (iv) finding that "product other than railway ballast was ancillary rather than simply one of the products likely to be produced from the quarry." [52] The judge was also criticised for ignoring at this point of the reasons his acceptance at a later stage that the quarry provided 25% of the total ballast requirements for the rail network. [53]
None of these propositions challenged, either directly or indirectly, the finding that a quarry of which only 10% of the product constituted railway ballast could not properly be described as a "quarry winning material primarily for railway ballast". Indeed, as the primary judge pointed out, there is some irony in the appellants disputing (as they did both here and below) that the other quarry products were "ancillary"; if they were not ancillary but were a primary product of the quarry, that characterisation tended to support the conclusion that the quarry was no longer worked primarily for the production of railway ballast.
There is no doubt a degree of flexibility allowed by the term "primarily". It would permit variations in the proportions of rock extracted for particular purposes over time, within a range. It might also allow for separate bases of assessment, such as percentage of rock extracted, volume sold for particular purposes and value of rock sold for different purposes. Such distinctions were not relied upon in this Court. Indeed, the case below appears to have been run on the basis of annual volumes of rock produced for identified purposes, although there was some indecision as to whether it was sufficient to deal with volumes dispatched in a particular year, or whether "stockpiles" should also be taken into account.
Given the nature of a development consent, it is appropriate to treat a purposive condition as one requiring objective assessment in order to test compliance. It is therefore legitimate and appropriate, as was assumed in the Court below, to consider volumetric proportions as a criterion for determining the purpose of the activity, rather than the subjective intentions of the operators.
There is, however, one qualification which must be made to the approach adopted by the primary judge. The appellants noted, both below and in this Court, that there were by-products of producing aggregate of appropriate dimensions for use as railway ballast. These were known in the industry as "scalps" and "crusher dust". Over time, ways were found to use an increasing proportion of these by-products, by further processing, to provide other commercially valuable quarry products, including concrete aggregates, sealing aggregates and road base. There is no reason to conclude that a diminution in the proportion of quarry products being classified as railway ballast necessarily undermined the primary purpose of the quarry. Increasing use of by-products may diminish the proportion dispatched as railway ballast, without affecting the primary purpose. However, when excavation is undertaken primarily for these "ancillary" purposes, and at an increasing level, the primary purpose of the quarry is no longer winning material for railway ballast.
That effect may be observed from figures showing that in 1990 railway ballast constituted some 60% of the quarry output, reaching a peak in absolute terms of 290,000 tpa, from a total output of 419,000 tpa (69%). By 2003 railway ballast had decreased to under 10%, being 50,000 tpa, while total production had increased to 510,000 tpa.
Assuming that all volumes of material supplied for particular end uses was an appropriate calculation (which was not challenged) it is not possible to accept that a proportion of less than 30% of annual output directed to railway ballast would permit the quarry to be characterised as an activity undertaken "primarily" for the purpose of winning railway ballast. It was not suggested that this figure had been exceeded at any point in recent years. Nor is it necessary to identify a particular point in time at which the quarry ceased to fulfil the description contained in the 1991 consent. It is sufficient to conclude that the quarry has not been operated primarily for the designated purpose since being acquired by the appellants in 2012.
It follows that the primary judge was right to conclude that the quarry is not currently being operated for the purpose for which the 1991 consent was granted. Subject to further consideration of the relevance of activities on the eastern land, the judge was therefore correct to make declarations and orders generally in accordance with orders (1)-(3).

[47]

There are three related topics which are conveniently addressed together and encompass orders (4)-(9) made by the primary judge. The judge accepted that it was possible to derive from the terms of the consent, read with the supporting documents, that approval had been given for extraction of a limited volume of rock. That conclusion was reached despite an acceptance that the conditions of the consent contained no express volumetric limit on extraction. The finding was identified by the appellants as "resource exhaustion finding".
The resource exhaustion finding depended upon the proposition that the development approval extended only to the scope of the development identified in Plan 2, which formed part of the EIS. Orders were made confining the operation to the area and depth identified on Plan 2. Further, Plan 2 identified the area of extraction as being wholly within lot 5; it followed, in the judge's view, that no extraction was permitted pursuant to the 1991 consent on lot 6. Declarations and orders to that effect were also made.
For reasons set out below, the judge was in error in making orders based on the resource exhaustion finding. He was also in error in finding that Plan 2 identified constraints on the total permissible development in circumstances where it had not been the subject of a condition of the 1991 consent. However, he was correct to rely upon Plan 2 as demonstrating that the proposed development did not include extraction from lot 6; lot 6 was affected, but only as the site of a haulage road between lot 5 and the eastern land.
As explained above, the development consent referred to "a quarry … on lots 5 and 6". Reference to the development application revealed the location as lots 5 and 6 and an area of land of about 10 ha. A plan of lots 5 and 6, as noted in the EIS, would reveal an area of some 52.5 ha. The EIS further stated: [54] "Plan 2 shows the location of the proposed quarry, haul road and details of the quarry faces and benches." The EIS identified the new quarry as occupying "about 5 ha and another 5 ha will be required for haul roads and setbacks."
Plan 2, as attached to the EIS, showed a dotted area surrounded by contour lines on lot 5, with a reference to "quarry floor RL 40.0". The plan indicated the haul road, 20 metres wide, traversing part of lot 6.
An annotated version of Plan 2 is attached to these reasons. The annotations were added and the document supplied to Council by the SRA in the course of the application process, but was not part of the application or the EIS. The shaded marking indicates the commencement of the quarrying operation on the north-eastern side of the main area of lot 5 (other than the panhandle). It shows proposed expansion of the quarry in a south-westerly direction across lot 5. The annotation stated: "Indicated quarry pit boundaries are estimates only and will depend on actual demand for ballast, and quality of stone found".
The indicative boundaries of the pit are marked 5 years, 10 years, 15 years and 20 years. Based on that document, the primary judge calculated the likely volume of rock to be extracted over a 20 year period, based on the level (RL 40) given for the quarry floor and the calculation provided of the area within the dotted line.
It is true that the EIS identified an estimate of reserves in excess of 3.5 million tonnes and noted an estimated annual production of between 250,000 to 300,000 tonnes. It therefore concluded that there were sufficient reserves for more than 10 years extraction.
The fact that these were estimates contained within a summary of the proposed development, [55] gave a sufficient indication that no precise calculations should be based on these figures. Similarly, the dotted line on Plan 2 was clearly indicative and not intended to provide a precise boundary to the proposed quarry. Again, the estimates of the area of the quarry used the term "about", which indicated imprecision, as did the estimate of annual production which contained a variation of some 20% between the minimum and maximum tonnages.
Of all the matters identified in the summary of the proposal in the EIS, only the means of transport, namely that some 70% of product would be removed by rail and the balance by road, was translated into a condition of consent. The levels of extraction could be treated as indicative of the scope and intensity of the operation, but did not form a limitation on the annual production, nor provide a basis for limiting the time over which the quarry could operate.
The appellants acknowledged a level of prevarication on the part of the primary judge as to whether he had made a particular finding as to the exhaustion of the resource within 20 years of the commencement of quarrying. After identifying the figures contained in the EIS and the known production figures as giving rise to a "conundrum", [56] he then stated that the possibility of the approved development resource having been "exhausted" did not need to be resolved, [57] a view to which he later returned. [58]
The Council submitted that no finding had been made, nor, to the extent that there was such a finding, had it been relied upon in formulating relief. Rather, the findings as to the unlawfulness of the continued quarrying operation on the western land depended on other matters, including the necessary purpose of extracting rock primarily for railway ballast and the topographical limitation to within the dotted line on lot 5. The appellants, however, contended that the finding had implicitly been made because it informed six declarations and six accompanying orders.
In part, this dispute results from the formulation of relief identified in the Council's summons and adopted by the primary judge in making orders. Of the 21 declarations and orders made with respect to the quarrying operations, the declarations should have identified the specific aspect of the operation which contravened a particular condition of consent or which was carried out without consent. Had that been done, the grounds of the respective orders could have been clearer. In the event, there were, as the Council noted, several reasons for finding that continued extraction on the western land was unlawful. That in turn, formed a basis for findings as to unlawfulness of continued operations on the eastern land. Nevertheless, reading the orders as a whole, and having regard to the way in which the case was presented, it is likely that the resource exhaustion analysis did form the basis for declaration (4) "that any further extraction of material from Lots 5 and 6 is prohibited", and the concomitant injunction, being order (5). If, in the alternative, orders (4) and (5) are consequential upon the finding that the quarry is no longer being used primarily for winning material for railway ballast, those orders are unnecessary. On either basis, they should be set aside.

[48]

(d) quarrying on lot 6

For reasons already given, the area of the development proposed in the development application being limited to some 20% of the area of lots 5 and 6, it is appropriate to have regard to the EIS for the purpose of identifying where the 10 ha referred to in the development application were located. On a narrow view, the EIS identified a quarry limited to about 5 ha with a further 5ha being required for haul roads and setbacks. It may be inferred, as the judge inferred, that the area within the dotted line (not otherwise broken down by the annotations to Plan 2), contained some 5ha, but included the benching or terracing by which the faces of the quarry would be reduced in size approaching the quarry floor. Plan 2 also indicated bore holes which had already been drilled to establish, in broad terms, the extent of the andesite resource. No testing had been done on lot 6. Further, in the description of the proposed development, the EIS stated that "[t]he quarry will be developed on Lot 5." [59]
It is appropriate to infer from this material that the area of the proposed quarry was entirely contained within lot 5 and, putting to one side the boundary with lot 6 and the boundary in the south-east corner with lot 42 (which the appellants also occupied) the dotted line on Plan 2 indicated that the proposed quarry would not advance closer than 30 or 40 metres from the external boundaries.
The trial judge was correct to infer from this material that the proposed development was limited to a quarry on lot 5, with an ancillary haul road crossing the south-eastern portion of lot 6 and the eastern portion of the panhandle of lot 5, in order to allow passage to the eastern land where the bulk of the rock was to be processed. An expansion of the quarry onto lot 6 had not been the subject of environmental assessment in the EIS. The proposal presented to the Council did not involve such an expansion; accordingly, the proposed quarry with respect to which consent was granted should be limited to an area of some 10 ha, as indicated by the dotted line on Plan 2. The judge was therefore right to hold that there was no consent to a quarry extending into lot 6. A declaration similar in terms to order (6) and a restraining order in terms similar to order (7) were appropriate. However, the more precise limitations as to area and depth contained in declaration (8) and order (9) were not warranted.

[49]

(e) alleged breach of condition (i)

The first condition in the revised conditions of the 1991 consent required that the development be conducted "in such a manner so as not to interfere with the amenity of the neighbourhood …." Six specific aspects of amenity were identified, ending with the catchall phrase "or otherwise". Of the specified matters, it is arguable that noise, vibration, smell, dust, waste water and waste products are each dealt with in subsequent specific conditions. Further, although it would have been open to Council to impose, as in fact it did, conditions relevant to the amenity of the locality more generally, the reference to "the neighbourhood" is apt to describe, with acceptable imprecision, the geographical surrounds of the quarry. How broadly those surrounds extend may well depend upon the nature of the potential interference. For example, noise, vibration and dust would readily be understood to permit a definition of the neighbourhood which might be affected in any way by blasting or crushing operations at the quarry.
Although at trial, the Council denied that its claim based on a breach of condition (i) related solely to increased truck movements through the township of Paterson, all of the evidence considered by the primary judge with respect to amenity involved such truck traffic. Accordingly, both the primary judge, and the submissions in this Court, focused concurrently on condition (i) and condition (vi), the latter permitting the dispatch of "not … greatly more than 30%" of quarry products by road. One reason for the Council's insistence that there had been a breach of condition (i) may have been defensive in circumstances where the appellants alleged that, to the extent that they were in breach of condition (vi), they had "further specific approval of Council" as provided for in condition (vi). In this Court, the appellants relied upon the need for a limited geographical identification of "the neighbourhood" in condition (i), together with an alleged failure on the part of the primary judge to take into account expert acoustic evidence to the effect that "the noise produced by trucks in 1991 was significantly greater than the noise produced by the current truck fleet". [60]
It is not necessary for present purposes to enter on the dispute as to the effect of the expert acoustic evidence, or its comparison with the evidence of the residents as to the significant loss of perceived amenity in the years after 1991. The reason is that if the volumes of road traffic were in breach of condition (vi), there could be a concomitant breach of condition (i). However, if, because the Council had given approval for an increase in road traffic, there was no breach of condition (vi), it would be difficult to read the development consent as vitiating that approval because the effects might fall foul of condition (i). As both parties accepted, there was no order expressly addressed to a breach of s 76A(1)(b) of the Planning Act, resulting from a breach of condition (i).

[50]

(f) alleged breach of condition (vi)

At trial, the appellants had challenged the validity of condition (vi) on the basis that it was "completely unworkable" and "incapable of being complied with". [61] Those challenges were dismissed by the primary judge, and have not been reagitated on the appeal. Further, so far as the factual issue was concerned, the judge accepted that in May 2016, 97.4% of quarry product was transported by road, a figure which was undoubtedly "greatly more than" 30%. [62] That factual finding was not challenged on appeal.
The appellants submitted that, whatever its precise meaning, condition (vi) in fact imposed no constraint on the means by which they could transport quarry products from the site. The submission depended on three propositions. First, part of the exercise of operating a quarry involved crushing the stone. The crushing operation was to be carried out primarily on the eastern land, the site of the old exhausted quarry. But condition (vi) did not purport to apply to operations on the eastern land, but only on the western land. No quarry products were exported from the western land, except to the eastern land, so there could be no breach.
Secondly, the existing use rights with respect to the operation of the crushing equipment on the eastern land included crushing stone imported from another site. That right was not the subject of any constraint on the means by which the resulting products were dispatched from the site. A purported imposition of a constraint inconsistent with the unfettered existing use right would be invalid. The restriction as to the means of dispatch from the site was inconsistent with the existing use right and was therefore not a valid condition.
Thirdly, if contrary to the first two submissions, condition (vi) did govern the transportation of quarry products from the eastern land, the current levels of truck movements had the "specific approval of Council", so that there was no contravention of condition (vi).
These three propositions will be addressed in turn.

[51]

(i) did condition (vi) purport to apply to eastern land?

The factual basis for the first proposition, namely that processing and dispatch were to be carried out on the eastern land may be accepted. It may also be accepted that that was an underlying assumption of the development application. The form on which the development application was inscribed included a box with the words "Reasons for selection of site", in which the applicant had written: "Adjacent to existing SRA quarry at Martins Creek. Land has sufficient reserves of quality rock."
The application also identified, under the heading "Environmental impact", that it was accompanied by the EIS. For the reasons explained above, it is legitimate to consider both the development application and the EIS in order to identify the scope and nature of the development for which approval was sought. The objectives of the development were identified in the EIS in the following terms: "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."
Further, the EIS described the proposed development in the following terms: "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. … Face shovels will load this broken rock onto off-road haul trucks for transport to the existing processing plant."
These passages demonstrate that the proposal involved processing on the eastern land. Further, evidence showing the location of the existing and proposed quarry demonstrated that quarry products could be shipped by rail and truck from the eastern land: there was no other access to public roads or rail from the proposed development site. It followed that the consent did not envisage quarry products being dispatched directly from the western land. That is also consistent with the language of condition (vi), which did not constrain the direct dispatch of quarry products by road, but rather prohibited the applicant permitting transportation except in the specified manner.
Next, it is convenient to consider the hypothesis that the export of material from the eastern land is not controlled by condition (vi) of the 1991 consent because it relates only to activity on the western land.
Part of the appellants' case was that continuation of existing uses did not require, and could not be controlled by, any subsequent development consent. The existing use right in question, in circumstances where there was no excavation taking place on the eastern land but only the processing of rock obtained from adjacent lands, might have raised a question as to why development consent was needed for adjacent lands within the control of the SRA. The answer, which appeared to be common ground between the parties, was that quarrying could not take place on the western land without consent. [63] However, that meant that any further activity on the eastern land, whether undertaken pursuant to existing use rights or not, could only take a resource from the western land subject to the conditions under which it was extracted. Relevantly, that rock was subject to conditions with respect to the dispatch of the final product to customers. Accordingly the operator on the eastern land could eschew using rock from the western land, or it was bound by the legal constraints applying to it. Those constraints continued to operate when the rock was dispatched from the eastern land, not because the consent related to activity on the eastern land - it did not, although it was premised on the assumption that quarry products would be transported from the eastern land - but because the operator on the western land was obliged not to permit quarry products to be transported from the anywhere onto public roads except in compliance with condition (vi).
If that conclusion were not correct, condition (vi) would have had, in practical terms, no operation. That it was intended by the Council to operate in the manner described, and accepted by the SRA as having such an operation, as a matter of fact, is beyond dispute. The fact demonstrates that there is no basis for adopting some counterintuitive understanding of the operation of condition (vi), nor for disregarding the language of the constraint which is not a conditional prohibition on dispatching quarry products, but on permitting their dispatch.

[52]

(ii) inconsistency with existing use rights

The appellants contended that, because all of the quarry products were to be dispatched from the eastern land, and the 1991 consent did not relate to the eastern land, they were entitled to continue to operate on the eastern land to the limit of their existing use rights. In particular, "a condition of consent controlling the method of transport from the Western Lands could not operate so as to derogate from the appellant's right to transport the same product from the Eastern Lands pursuant to continuing use rights." [64]
The 1991 consent, in its terms, made no reference to where the rock would be processed. However, reference to the EIS demonstrated that most, if not all, processing would take place on the eastern land. The relationship between the 1991 consent and any existing use rights with respect to the processing on the eastern land was, as the appellants correctly accepted, one of factual dependence, not legal control. It is true that the 1991 consent imposed no condition on the exercise of any continuing use rights with respect to the eastern land; however, in so far as the operator of the processing plant on the eastern land depended upon rock obtained from the western land, the condition of consent with respect to the western land required the operator of the quarry on that land to take necessary steps so as not to permit the dispatch of excessive quantities by road.
The existing use rights for the eastern land did not involve any "right" to obtain rock for processing; if it had an entitlement to process 500,000 tpa, and the 1991 consent had limited production to 200,000 tpa, the eastern land could not have used its existing use right to the maximum of its potential if it only had available to it rock from the western land. If the existing use right did not permit it to import rock from other than adjacent lands, the existing use right would have diminished as a result of unavailability of the resource. None of that would have involved any imposition of conditions on the existing use rights with respect to the eastern land.
Accordingly, it is unnecessary to determine the scope of the existing use rights with respect to processing of rock by plant on the eastern land. Similarly, it is unnecessary for this purpose to determine the date upon which those existing use rights crystallised. [65]
However, for the reasons explained above, the SRA and therefore the appellants, were not entitled to rely upon existing use rights in respect of the eastern lands to avoid compliance with the conditions of consent granted with respect to the western land. Without the consent, there was no rock to be processed on the eastern land. The consent required that the SRA, which operated the processing plant on the eastern land, not "permit" the removal of greatly more than 30% of the product by road. Indeed, it did not matter whether the quarrying operations were carried out by the same party on each area; the operator under the 1991 consent was at all times subject to the obligation not to permit breach of the conditions of its consent in the manner described. It was in breach of the 1991 consent to extract rock from the western land if it were permitting an amount in excess of condition (vi) to be dispatched by road.

[53]

(iii) subsequent approval of varied proportion

The appellants' case with respect to subsequent specific approval relied upon a course of conduct; it was not submitted that there was any Council resolution granting approval by reference to condition (vi), nor any document evidencing such an approval.
The relevant circumstances, as set out in the appellants' notice of appeal, ground 21, involved the following conduct: "(a) the council's acceptance of contributions for road haulage, pursuant to the 1991 Consent; (b) the Council's resolution dated 18 May 1999 recognising an existing use right for processing 449,000 tonnes of bulk material [per] annum extracted from Lots 5 and 6, and also resolving not to take any further action against the Quarry; (c) the Council's agreement with [Rail Services Australia] on 16 August 2000 (Road Agreement), which recited the Council's acceptance of existing use rights to carry out extractive industries on [the eastern land] … as well as on Lots 5 and 6 [the western land] and required the annual payment of $40,000 in lieu of s 94 contributions that might have been payable by the RSA for the tertiary plant operation; (d) the Council's grant of development consent on 17 September 1999 to RSA for the erection and operation of fixed tertiary crushing equipment used to produce aggregates for road, rail, concrete and civil industries which were to be hauled by road from [the eastern land], on conditions that included that the end of Station Street be sealed to Council's specification (condition 5), and also that the development be carried out strictly in accordance with, inter alia, the offer to pay contributions for road damage set out in the application; (e) the Deed of Settlement between Council and RailCorp dated 20 July 2010, pursuant to which RailCorp agreed to pay the applicant up to $350,000 for the Paterson Road upgrade, and the Road Agreement was replaced with an Agreement by RailCorp to pay a road maintenance contribution calculated on the tonnage of material transported by public road from Martin's Creek Quarry, not to exceed 550,000 [tpa] (see clauses 2.1, 2.2 and 2.3)."
In the Court below, the appellants contended that condition (vi) contemplated a "once-and-for-all approval", as opposed to an approval each time the possibility of breach arose. That position was adhered to in this Court. [66] However, it is far from clear how such a proposition would fit with the five separate aspects of the Council's conduct, over several years, which was said to demonstrate the relevant specific approval.
The first aspect of the conduct depended upon acceptance of a contribution by the SRA for road haulage, contained in its letter of 18 April 1991, before the conditions of approval had even been settled. The last event relied upon was a deed of settlement of proceedings in July 2010. The appellants' case appears to have been fundamentally inconsistent with the idea of a once-and-for-all approval, which must either have varied the proportion which could be carried by road or waived condition (vi) altogether.
The appellants' written submissions focused on the fact that part of the conduct relied upon involved Council taking steps to recoup the expenses of road maintenance which could be attributed to increased truck traffic from the quarry. In principle, those arguments were not persuasive. The fact that the Council could have extracted extra payments as a condition of a grant of approval did not mean that the extraction of additional payments involved the grant of an approval under the 1991 consent. Further, the payments were extracted with respect to increased production, which in turn led to increased road traffic. None of the arrangements with respect to payments directly addressed the question of the proportion of quarry products being transported by road. Finally, these arguments assumed that the only purpose of condition (vi) was to control the likely costs of road maintenance from high levels of truck use. There is no basis to assume such a limited purpose, in circumstances where heavy truck use in small townships must inevitably adversely affect the amenity of residential neighbourhoods.
It is nevertheless necessary to address the individual events relied on by the appellants.
The first element of conduct relied upon in the notice of appeal was the letter from the SRA to the Council of 18 April 1991 answering Council's "request for contribution to the construction of roads leading into Martin's Creek Quarry." It offered a contribution in a fixed amount plus a supply of an identified volume of road material to Council without charge.
How that letter could demonstrate a waiver or variation of the terms of condition (vi) which had not come into force is not readily apparent. No submissions were put in support of that element in the course of oral argument.
Subsequent to the imposition of the condition, approval was given by the Council to an increase in the ability of the SRA to dispatch quarry products by road, at a level greatly in excess of 30% of the total volume of products dispatched. The second event was a resolution of Council in relation to existing use rights at the quarry, whereby Council accepted that "no further action would be taken with regard to [Rail Services'] use of the quarry, provided no further evidence is produced that alters [findings contained in certain documentary evidence]." The existing use rights were expressly identified as relating to the eastern land. Council also resolved that "processing of materials on [the eastern land] is limited to 449,000 tonnes of bulk material per annum."
The appellants had a separate argument with respect to reliance upon existing use rights over the eastern land. This resolution had nothing to say about the 1991 consent: (i) it did not address it; (ii) nor did it address any aspect of how material would be transported from the eastern land; (iii) rather, it was wholly concerned with the volumetric limit on processing on the eastern land. It provided no assistance to the appellants' case that there had been any approval, specific or otherwise, for the purposes of condition (vi), in or about May 1999.
It was, however, true that in September 1997 the Rail Services Authority (a successor to the SRA) had sought approval under condition (vi) to transport "by road quarry product quantities of up to 450,000 [tpa] from Martins Creek Quarry." A table which appears to have accompanied the letter indicated percentages of total ballast transported by road varying from 52% in 94/95 up to 75% in the previous year, 96/97. As counsel for the appellants conceded in argument, the letter implicitly accepted that there had been no approval for an increase in the percentage permitted to go by road up to that point, although arguably condition (vi) had been breached in some years. Counsel further accepted that "nothing happened with that application." [67] Mr Walker, the quarry manager, gave evidence that the application was "later withdrawn." [68]
In September 1998, Rail Services made an application to be able to expand the export of material from the eastern land on the basis that the reserves held on that land were "nearing capacity." Rail Services sought agreement for "annualised sales" of 310,000 tpa, production of which required processing of some 449,000 tpa of bulk material. The application concluded: "Transport of saleable products from Lot 2 [the eastern land] will be by both road and rail. The mode of transport will ultimately be at the discretion of RSA, with current market demands being predominantly by road."
Following Council's resolution on 18 May 1999, Rail Services lodged a development application on 12 June 1999 which was accompanied by a statement of environmental effects. The application related to the eastern land and the statement asserted (at par 12) that the development "will have no adverse impact" because it merely replaced portable crushing and screening equipment with fixed plant, without increasing "productive capacity for the quarry" or "vehicular movements". A five year consent to the erection and operation of "fixed tertiary crushing equipment" was granted on 17 September 1999.
The relevance of this consent to the operation of condition (vi) of the 1991 consent is obscure. The purpose of the consent was to allow further processing of rock which was discarded in preparing ballast. Counsel identified this as 50% of the material excavated. [69]
The next aspect of conduct relied upon was an agreement of 16 August 2000 between the Council and Rail Services. A recital noted that "RSA asserts that it has existing use rights which enable it to carry out industries of an extractive nature on the subject land. Council resolved at its Ordinary Meeting of 18 May 1999 … that the documentary evidence supplied by RSA in support of existing user rights be accepted; provided no further evidence is produced that alters these findings." Recital (4) stated: "(4) The parties hereto have agreed that RSA shall pay to the Council the moneys hereinafter referred to in satisfaction of any fees which the Council may be able to claim against RSA in respect of the tertiary plant operation referred to by virtue of any claim pursuant to s 94 of the [Planning Act] or howsoever otherwise arising."
The resolution of 18 May 1999, taken together with the consent to the tertiary crushing plant, provide evidence of a tentative acceptance by Council of an existing use right to process a certain volume of rock on the eastern land. There is no indication as to where the rock would come from, nor is there any reference to condition (vi) of the 1991 consent relating to the western land. Counsel for the appellants submitted that it could be inferred that the only source of rock was that coming from the western land and that, because the product was not railway ballast, it was not going to be exported by rail. It was therefore intended that the payments cover damage to roads. [70] It was drawing a long bow to describe the resolution, by implicit double inference, as a tacit but "specific approval" for an unmentioned purpose.
The final event relied upon was a deed executed by the Council and the then relevant railway authority, known as RailCorp.
By letter dated 19 September 2007, addressed to RailCorp, the Council noted: "With regard to the transport issue, as expressed at the tour of the quarry on the 24th, Council has continuing concerns over the significant increase in the quarry's reliance on road transport and this issue was consistently raised as a major problem by members of the public at the August the 16th meeting. From the data provided it appears that over the last five years an average of almost 620,000 [tpa] has been dispatched via road from the quarry. This figure is well in excess of road transport levels when council entered into the current road maintenance agreement with RaiICorp in 2000 and is having a significant impact on our road network and businesses and residents in Paterson."
Council wrote to their local member of Parliament on 21 September 2007 stating: "RailCorp did enter into an agreement with Council in 2000 to provide a road maintenance contribution …. This agreement was reached at a time when the quarries [sic] total sales were around 350,000 [tpa], was made on the understanding that processing on site was limited to a maximum of 449,000 [tpa] and that rail transport would accommodate a significant proportion of quarry product. At the time of this agreement RailCorp had also provided advice to Council in a Statement of Environmental Effects that the installation of a tertiary treatment plant on the Martins Creek site would not result in any increase in road haulage. … Council has in the past attempted to levy sec 94 contributions linked to production levels from the quarry, but RailCorp has argued strongly and presented legal argument that their operation had existing use rights. With the recent provision of data it has now become evident that these rights have been exceeded for at least the last eight years. This matter was raised with RailCorp management in August and they now argue that existing use rights don't apply."
Further correspondence between the Council and RailCorp failed to reach a settlement of the dispute. In 2009 the Council commenced proceedings in the Land and Environment Court against Rail Corporation NSW (the successor to Rail Services). The points of claim set out the terms of condition (vi), [71] and noted that RailCorp had, in September 1997, sought the deletion of condition (vi), but had withdrawn that application in June 1998. [72] Council then asserted that condition (vi) remained in force and effect and that RailCorp "permits the transport of more than 30% of the quarry products taken from Lots 5 and 6 by road", contrary to condition (vi).
In its defence and cross-claim, RailCorp denied that condition (vi) was valid, relying, first, upon the absence of its agreement, pursuant to s 91A of the Planning Act and, secondly, because the condition was "uncertain". It did not plead that there had been approval for any subsequent increase in the proportion permitted to be transported by road.
On 20 July 2010 the parties entered into a deed of settlement pursuant to which the proceedings were dismissed. By then, RailCorp was seeking to sell its interest in the quarry. The agreement, in setting out RailCorp's obligations, limited them to the period between the date of the agreement and the date on which the sale settled. The deed was expressed not to fetter either RailCorp or the Council in the exercise of their statutory powers and duties and did not bind RailCorp's successor in title to the quarry. [73] The deed contained two obligations binding RailCorp, namely an agreement that production would not exceed 550,000 tpa and that it would pay a "road maintenance contribution" based on the number of tonnes transported from the quarry by public road. The earlier road agreement was terminated.
The proposition that the settlement deed constituted an approval for the purposes of condition (vi) of the consent depended upon an implication drawn from the fact that the Council accepted a production level of 550,000 tpa and knew, and indeed had pleaded, that "very little [of annual production] is removed by rail". [74] However, even if the deed of settlement were to be construed as an approval for the purposes of condition (vi) of the consent, it was expressly limited to the operation undertaken by RailCorp and did not extend to benefit the appellants.

[55]

(1) background

Land usage is subject to a range of statutory controls which, in broad terms, operate cumulatively. Thus, for the purposes of the operations carried out at Martins Creek, the appellants needed development consent under the Planning Act and also a licence under the Protection of the Environment Operations Act 1997 (NSW) (the 1997 Act). The inter-relationship with other Acts is addressed in s 7, relevantly in the following terms: 7 General relationship with other Acts (1) Other Acts not affected Nothing in this Act affects any of the provisions of any other Act or any statutory rules, or takes away any powers vested in any person or body by any other Act or statutory rules. (2) This Act generally prevails However (subject to subsection (3)): (a) this Act prevails over any other Act or statutory rule to the extent of any inconsistency, and (b) a regulation made under this Act prevails over any other statutory rule to the extent of any inconsistency.
It was not suggested that there was any inconsistency between the 1997 Act and the Planning Act. The 1991 consent purported to deal with the inter-relationship by requiring (condition (iv)) that the applicant obtain all statutory approvals and licences as may be required, prior to commencement of the proposed development. That condition included a licence under the State Pollution Control Act, which was obtained. Perhaps gratuitously, condition (iv) required that the applicant "conduct the development in accordance with the terms of such approvals and licences."
The 1997 Act commenced on 1 July 1999. The transitional provisions provided that a licence issued under an Act repealed by the 1997 Act, which included the Pollution Control Act 1970 (NSW), "is taken to be a licence issued under this Act". [75]
Chapter 3 provides for the issue of environment protection licences: s 42. Section 48 makes it an offence to carry on a "scheduled activity" without being the holder of a licence "that authorises that activity to be carried on at those premises": s 48(2). The term "scheduled activity" is defined in the Dictionary to the Act to mean an activity listed in Sch 1. The appellants' operations fell within two categories in Sch 1, as then in force, namely: crushing, grinding or separating works that: (1) process materials including sand, gravel, rock … by crushing, grinding or separating into different sizes, and (2) have an intended processing capacity of more than 150 tonnes per day or 30,000 tonnes per year. … extractive industries: (1) that obtain extractive materials by methods including … quarrying or that store, stockpile or process extractive materials, and (2) that obtain, process or store for sale or reuse an intended quantity of more than 30,000 cubic metres per year of extractive material. The term "extractive materials" was not defined, but appears to incorporate all material recovered by the methods identified, including quarrying. There was no dispute that the appellants required a licence in respect of both categories of activity. [76]
The EPL 1378 provided to the appellants was reviewed periodically. As in force in July 2000, condition A1.2 read as follows: "A1.2 This licence authorises the carrying out of the scheduled activities listed below at the premises specified in A2. The activities are listed according to their scheduled activity classification, fee-based activity classification and the scale of the operation. Unless otherwise restricted a condition of this licence, the scale at which the activity is carried out must not exceed the maximum scale specified in this condition. Scheduled Activity Crushing, Grinding or separating Works Extractive Industries

[58]

(2) legislative regime for licence variation

The 1997 Act contained two provisions in 2007 which were central to the submissions concerning the validity of the variation. The primary judge found that there had been a contravention of each provision and it is therefore convenient to set them out in full: 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. … 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.

[59]

(3) grounds of review

The challenge raised by the Council in the court below had two steps: first, ss 50(2) and 58(6) were said to impose conditions precedent to the exercise of the power to vary which had not been satisfied; secondly, the question whether they had been satisfied was a matter for the court and was not determined by any opinion held by the EPA. In the parlance of judicial review, the existence of the condition was, in each case, a jurisdictional fact. The Council did not run an alternative case that, if the jurisdictional precondition was indeed a properly formed opinion of the EPA as to the matters in question, no such opinion was formed. There is, however a separate issue as to the relevance of the EPA's opinion to the court's assessment.
The primary judge upheld the Council's submissions in this respect and declared the licence variation invalid.
In sequence, the first question concerned the satisfaction of s 50(2) of the 1997 Act. The criterion identified in that provision gave rise to two issues. First, there was a prohibition on variation if the development was one which could not be carried out without development consent and such consent had not been granted. The second issue relied upon the exception in s 50(3) that development consent was not necessary because of an existing use. Subsection (3) identifies a particular circumstance in which subs (1) would not operate; it is expressed to operate "without limiting the above". But if development consent is not necessary because the applicant enjoys an existing use right, that is development which can be carried out without development consent and hence the section would not on any view be engaged. There were, in effect, thus two issues to be addressed, namely (i) was development consent required for an authority to extract and process up to 2 million tpa and, if so, (ii) had a consent been granted?
The evident purpose of s 50, and indeed s 58(6), is to ensure that the Planning Act and the 1997 Act operate in tandem and do not result in conflicting permissions. Thus, if consent is required under the Planning Act, and has not been obtained, the EPA cannot grant a licence under the 1997 Act.
It is difficult to see that the prohibition contained in s 50(2) could be understood as imposing a condition based on the opinion of the EPA. It is not so expressed; nor does it involve what might ordinarily be described as an evaluative judgment. It requires an assessment of the effect of planning instruments in the circumstances of a particular activity; such an exercise is readily seen to involve an assessment which may ultimately depend on the determination of a court. [77] The primary judge was correct to so hold.
In addressing s 58(6), the primary consideration relied upon by the appellants was that par (a) did involve an evaluative judgment, namely whether the variation would authorise "a significant increase in the environmental impact of the activity". This factor is relevant in two respects: first, the closer the matter comes to a pure evaluative exercise, the more likely it is that Parliament intended that it be determined by the repository of the power to be exercised. As explained by Spigelman CJ in Woolworths v Pallas Newco Pty Ltd: [78] "[53] The first factor which may support a conclusion that the appropriate classification of a proposed development is not jurisdictional concerns the element of fact and degree involved when determining whether or not a particular proposal answers the statutory description." That factor has particular weight in circumstances where the evaluative judgment falls within the likely expertise of the repository of the power.
The second matter is the degree of inconvenience which may be caused by designating a fact as jurisdictional. In Pallas Newco, the Chief Justice identified this element, in the circumstances of a development consent, in the following terms: "[63] The most significant element suggesting that classification is not a jurisdictional fact arises from the degree of inconvenience that can arise if a consent which is valid on its face and, indeed, is entered upon a register of consents maintained by the Council … cannot be relied upon either by the person receiving consent or by all those dealing with that person in relation to the land."
These are material factors to be taken into account, not to dictate a particular outcome, but to inform a process of statutory construction. [79]
There are a number of statutory indications that the requirements in s 58(6) of the 1997 Act are jurisdictional facts, review of which is not limited to consideration of the opinion of the EPA. First, the structure of the Act is such as to separate out the preconditions for the exercise of the power to grant or vary a licence from the factors to be taken into account in exercising those functions. Thus, ss 50, 58(6) and 59 identify criteria of engagement of a power, not factors to be taken into account in the exercise of the power. None of those provisions is expressed to depend upon the opinion of the EPA. By way of contrast, other provisions of the 1997 Act are so expressed. [80] The comparison suggests that the legislature was attuned to the difference in approach and, where it intended that a matter should be determined by the EPA, it said so. It did not say so with respect to the matters identified in s 50(2) or s 58(6).
The second matter of structure is related to the first. It is that the legislature dealt in separate provisions with the preconditions to the engagement of the power to grant or vary a licence, on the one hand, and the circumstances governing the exercise of the power, on the other. Matters to be taken into account in exercising its functions under Ch 3 were identified in s 45, not s 50 or s 58. While it is true that the considerations under s 50 or s 58 included, inevitably, aspects of the environmental impact of the activity the subject of the application, they are identified for a different purpose and, in part, assume that there will have been environmental assessment prior to the exercise of the power. Thus, the preconditions are, in language of Spigelman CJ in Pallas Newco, "not only distinct but extrinsic to the process of determining whether consent should be given;" [81] they each involve determination of a matter "that is legally antecedent to the decision-making process." [82] Finally, as the Chief Justice said: "[48] The extrinsic or ancillary or preliminary nature of the relevant fact makes it more likely that the fact is jurisdictional."
The mere fact that a particular criterion involves an element of evaluative judgment (where not stated to depend upon the opinion formed by the repository of the power) will rarely be determinative; few powers are dependent upon circumstances that do not involve some element of judgment. For the purposes of the law, facts do not exist in the abstract: someone must form an opinion as to whether or not they exist. The specification of a time period within which to commence proceedings may appear to set an objective fact, but compliance will depend upon a finding as to when the conduct in question occurred. [83] Of significantly greater importance in the present case is the fact that the legislation prescribed, separately from provisions relating to the exercise of power, a precondition to the engagement of the power, and in terms which did not refer to an opinion in that regard formed by the repository of the power.
A similar approach has been adopted in a number of cases involving planning laws. In Corporation of the City of Enfield v Development Assessment Commission [84] the High Court held that it was for the court to determine whether a particular development was a non-complying development because it was classified as a "special industry" for the purpose of the relevant zoning law. The definition turned on whether the proposed use "will produce conditions which are, or may become, offensive or repugnant to the occupiers or users of land in the locality", [85] which might be thought to involve a highly evaluative judgment. A year earlier, in Timbarra Protection Coalition Inc v Ross Mining NL, [86] this Court held that, where specific steps were required in circumstances where the development was "likely to significantly affect a threatened species …", the determination of that criterion was to be assessed by the reviewing court. In Chambers v Maclean Shire Council [87] the question whether a proposed prawn farm qualified as a "permissible aquaculture development", according to physical criteria, was a jurisdictional fact for the Court. Finally, in Pallas Newco, the Court held that it was a matter for the court to determine whether a proposed development was a "drive-in take-away establishment", and thus permissible with consent, or not, in which case it was prohibited.
The trial judge was correct to determine for himself whether the proposed variation of the licence would "authorise a significant increase in the environment impact of the activity" and whether it had been "the subject of environmental assessment and public consultation".

[60]

(a) relevance of EPA's opinion

On the basis that the primary judge was correct in assessing compliance with the two conditions in s 58(6), there is a preliminary issue as to what weight, if any, should be given to the EPA's assessment. On one view, if the factual issue is to be determined by the reviewing court on the evidence before it, the opinion of the decision-maker is not evidence of the fact. However, in Enfield, the High Court accepted that a court reviewing a decision can give weight to the views of a specialist tribunal as to the jurisdictional fact, and may (but need not) resolve any doubt by accepting that opinion, if the evidence before the tribunal and the court is substantially the same. [88]
That approach should not be adopted in circumstances where the opinion of the specialist tribunal would itself have been set aside as invalidly reached, had it been a sufficient basis to establish jurisdiction. The opinion of the EPA should have been dismissed on that basis in the present case.
Pursuant to an order made in the Land and Environment Court on 24 April 2015, the EPA provided a statement of reasons for the 2007 variation. The reasons noted that the licence holder had asserted existing use rights with respect to the eastern land and had provided a copy of the Council's minutes of a meeting on 18 May 1999. The licence holder had also provided a copy of the 1991 consent with respect to the western land. The EPA therefore concluded that development consent had been granted with respect to the whole of the area and that the consent with respect to the western land did not have a limit on the volume of material which could be extracted. The reasons continued: "(a) EPA did not consider the environmental impact statement dated 26 July 1990 … as this document was not referred to in the Development Consent. (b) EPA did not invite or consider public submissions prior to varying the Licence pursuant to s 58(6)…. The Development Consent, which did not impose an extraction limit, was already subject to an environmental assessment and public consultation under [the Planning Act], and therefore, EPA did not need to do this under s 58(6) of the POEO Act."
This justification for the conclusion that the obligation under s 58(6) was not engaged was patently fallacious. Even assuming that (contrary to the reasons set out above) the 1991 consent could properly have been construed without reference to the development application or the EIS, the relevant question was not the scope of the 1991 consent, but whether a volume of rock in excess of 500,000 tpa, and up to 2 million tpa had been the subject of environmental assessment. There was no reason for the EPA to eschew reference to the only document which could answer that factual question. Accordingly, so far as the EPA purported to make a factual finding with respect to the condition identified in s 58(6)(b), the finding is of no evidential value. On the other hand, it may be inferred that the EPA formed the opinion that an increase in volume of permissible extraction would increase the environmental impact of the activity, as provided in s 58(6)(a). Had it not taken that view, it would not have needed to consider par (b).
Similarly for the purposes of s 50(2), the EPA failed to address the scope of the 1991 consent in considering whether the statutory criterion was fulfilled. Its satisfaction on that issue could carry no evidential weight.

[62]

The appellants did not initially challenge the conclusions of the primary judge that both of the preconditions in s 58(6) were in fact fulfilled, thereby engaging the obligation to invite and consider public submissions on the proposed variation. Rather, the appellants gave notice of a proposed amendment to their notice of appeal to add a new ground 42A during the first day of the hearing. That ground challenged the finding that "the 2007 licence variation necessarily authorised a fourfold increase in production capacity at the quarry, and thereby authorised a significant increase in environmental impacts."
There was some ambiguity in the ground so formulated: it was not clear whether there was a challenge to the findings with respect to both pars (a) and (b) of s 58(6), or only one. That was clarified in oral argument, counsel stating: [89] "I seek leave in relation to proposed new ground 42A, and that's if we're wrong on ground 42 which is the jurisdictional fact question, we wish to submit that 58(6)(a) is something that was nonetheless not satisfied on the evidence available as at 2007. That's the submission that we wish to put, (6)(a), we don't make a submission (6)(b)."
The appellants' argument thus identified a question of fact which was to be determined as at the date of the application in early December 2007. Counsel referred to a letter from RailCorp to the Department of Environment and Conservation dated 22 December, 2006 which stated: "In this current economic climate RailCorp would like to increase production at the Martins Creek Quarry from the 500,000 [tpa] limited by the EPL to potentially 650,000 [tpa]. Please note that current planning consents for the premises permit 780,000 [tpa] to be produced. Future Requirements The facilities crushing and separating plant has always had the capacity to produce up to 1,000,000 [tonnes] of crushed ballast and rock by-products per year but has been limited by the EPL activity scale and planning consents."
The primary argument was that because RailCorp only intended to increase production to 650,000 tpa, from the limit of 500,000 tpa, there was not necessarily a significant environmental impact. No express reliance was placed upon the asserted limit of 780,000 tpa in the development consent; there was no such figure expressly referred to in the consent and, as already discussed, the volume which was the subject of the EIS was less than half that figure.
This was not the only aspect of the application which was less than entirely accurate; the implication that RailCorp had been complying with the 500,000 tpa limit was incorrect since 2003, when the extracted volume reached some 510,000 tpa. The lowest volume over the ensuing three years was 650,000 tpa in 2005; the highest was some 830,000 tpa in 2006.
However, both the expression of intention in the letter accompanying the application, and the actual volumes extracted in previous years, are irrelevant: what the variation of the licence authorised was a fourfold increase from 500,000 to 2 million tpa. It is true that any figure below that was also "within the authority granted by the licence", but what was authorised, relevantly for assessing environmental impact, was the maximum permissible activity.
It is apparent from the evidence that the greatest single environmental impact of the quarry was the level of truck movements involved in carting rock from the quarry to customers. The EIS calculated that 24 truck movements per day were required to move 80,000 tpa, being 30% of the estimated annual production at that time of 267,000 tpa. Again using a figure of 30% of the extracted material being transported by road, the requisite number of truck movements per day to accommodate an output of 2 million tpa would be 180. In fact, it is clear that by 2007 the proportion of rock transported by road from the quarry was much more than 30%. A traffic impact assessment prepared in August 2016 for the second appellant which considered the traffic likely to be generated to allow for the expansion of the quarry to 1.5 million tpa, based on the same number of weeks and days per week of operation, concluded that 336 truck movements per day would eventuate. [90] An authorised extraction of 2 million tpa would likely be 33%, higher or 448 truck movements per day. The traffic impact assessment also noted that the rate of movements would be higher between 5.30am and 8am and that the maximum throughput permitted by the current "operational characteristics of the quarry" allowed 40 trucks loading and exiting the site per hour: that is a possible throughput of a truck every 90 seconds.
There was extensive evidence from residents of the township of Paterson describing the effect of truck traffic and the variation between days when there was a high volume and days when the volumes were lower and were acceptable. It was common ground that there were large volumes moving through the town from 5.30am on days in March 2014. 2014 was the year in which the volume extracted from the quarry was at its peak, being some 1.15 million tpa, a figure only fractionally above half the proposed authorised limit of 2 million tpa.
The appellants further submitted that a high degree of certainty was required for the conclusion that the variation "will authorise" a significant increase in environmental impact. So much may be accepted. The increase in daily truck movements, especially in the early hours of the morning, demonstrates that the variation would indeed have authorised a very significant increase in the environmental impact of the activity, namely the level of extraction of rock from the quarry, the vast bulk of which, in accordance with the evidence, would have been transported by road.
It follows that the challenge to the factual finding made by the trial judge must be rejected. It also follows that the requirement in s 58(6) of the 1997 Act was engaged. It was not submitted that, if engaged, it was complied with. Nor was it submitted that failure to comply would not result in the invalidity of the licence. The findings of the trial judge in this respect should be upheld.

[63]

F Conclusions

For the reasons set out above, the primary judge was correct to conclude that the 1991 consent did not permit the use of the western land for the purposes of extractive industry, otherwise than for winning material primarily for railway ballast, and that the purpose had not applied for some years. The judge was also correct to find that the 1991 consent does not permit the extraction of rock from lot 6, and that that was occurring. Finally, the judge was correct to find that "not greatly more than 30%" of the quarry products resulting from extraction on the western land were permitted to be transported by road, and that the existing operations were being conducted in breach of condition (vi). Accordingly, the judge was correct to conclude that quarrying was being undertaken on the western land in breach of the 1991 consent and therefore in contravention of s 76A(1)(b) of the Planning Act, as in force at the date of judgment.
Broadly speaking, these conclusions support the declarations and orders (1), (2), (3), (6), (7), (10) and (11), being declarations and orders relating to the western land. Declarations and orders (4), (5), (8) and (9) depended upon a finding to the effect that the consent was limited as to the total volume of material to be extracted, by reference to the area and depth indicated on Plan 2. Consistently with the judge's view that there was no condition limiting the annual production level, those orders should not have been made, because they depended upon the implication of conditions which were not to be found within the 1991 consent.
Declarations and orders (12)-(19) related to the scope and operation of the processing being undertaken on the eastern land and thus depended upon findings with respect to the existing use rights regarding that land. The evidence revealed that the whole of the resource being processed on the eastern land was derived from quarrying on the western land. There was no evidence suggesting that any material was being imported from other lands, nor that there was any intention to obtain a resource from other land not immediately adjacent to the eastern land. Had there been, there would have been an immediate issue as to whether such an activity would fall within the existing use rights with respect to the eastern land. However, because that is not presently an issue and because the operation on the western land can no longer take place, absent further consent, there is no need to make declarations or orders with respect to the scope of the existing use rights relating to the eastern land.
Further, there is reason not to do so. It is common ground that a State significant development application has been made by the appellants which, if approved, would provide an entirely new and separate authority for the carrying out of some or all of the operations the subject of these proceedings. As the appellants accepted, existing use rights are not immune from affectation where consent to development on adjoining lands may be conditioned on an applicant releasing or modifying some part of the existing use rights otherwise enjoyed. The fact that the quarrying and processing operation now in contemplation depends on the resource on the western land for purposes largely unrelated to the production of railway ballast, it is likely that the conditions of any consent will differ from the terms of the 1991 consent. The relevance of existing rights with respect to use of the eastern land, which crystallised a decade ago, or possibly more than two decades ago, is not known. Because the current operations on the eastern land cannot continue absent some further authority with respect to the resource on the western land, declarations by this Court as to the existing use rights on the eastern land may well have no legal effect.
There are problems as to the terms of the orders made in the Court below which would need to be addressed. The better course with respect to the eastern land, is to set aside the declarations and orders (12)-(19), not because the basis for the orders factually or legally mistaken, but because such orders are unnecessary.
The primary judge made a further declaration (20) and granted a conditional injunction (21) with respect to activities on lot 5, identified as "use of a manufactured sand processing plant and two mobile crushing plants". The basis of those orders was that the development consent did not envisage such activities being carried out on lot 5, but rather that all processing would be carried out on the eastern land. That was factually correct; there was, however, no condition in the consent to that effect. Quarrying, as an extractive industry, includes processing of the extracted material by crushing and grinding. There was no basis for the Court to find that no processing at all would be allowed on lot 5 (or lot 6). Accordingly, orders (20) and (21) should be set aside. Again, if there be some reason to impose a condition which precludes such activities on the western land, that will no doubt be the subject of consideration in relation to the pending application.
Declaration (22) and injunction (23) relate to the licence granted by the EPA. The basis for those orders has been upheld and, subject to variations as to form, the orders should stand.
Each of the injunctions was the subject of a stay resulting from the judge's consideration of discretionary factors governing relief available under s 124 of the Planning Act. [91] The stays remain in place at the time of the hearing of this appeal, subject to certain conditions which will be noted below. It is necessary to turn to the exercise of discretion in making the orders.

[64]

G Discretion

The exercise by the trial judge of the Court's discretion in granting relief had a number of elements. The first was the grant of a conditional stay of the injunctive relief. That order was challenged on appeal on two bases, namely (i) that the stay did not extend for a sufficient period to allow the State significant development application presently pending to be determined; and (ii) a challenge to the conditions on which the quarry was permitted to continue to operate. The grounds of appeal relied upon an assertion that the limited form of the stay involved an element of punishment of the appellants for their conduct, which was characterised by the judge as the unscrupulous taking of liberties and pushing the envelope of what was permissible at the quarry.
In this Court, the appellants took the position that, unless they were entirely successful in setting aside the orders made in the Land and Environment Court, the question of relief should be remitted to that Court where issues of discretion could be addressed again. Counsel submitted that "the discretion as of today may be different to the discretion earlier in the year or last year." [92]
No evidence was put before this Court to indicate any factual basis upon which it might be thought that discretionary considerations would differ. Before the primary judge, the appellants relied on four factors in seeking that the Court decline any relief, namely (i) the alleged delay of the Council in seeking relief; (ii) the economic impacts of relief; (iii) the minimal environmental impact of the unlawful development on affected residents, and (iv) a proposed interim environmental measure proposed by the appellants to allow the operations to continue at a lesser scale. However, only the economic impacts of the stay might have changed since the stay was imposed. In the absence of evidence, there is no reason to assume that significant and unforeseen changes have occurred over the short period since the stay was imposed and continued by consent. Apart from the allegation that the primary judge had an improper purpose in refusing to grant a complete stay on all orders, or decline to make any orders at all on the basis of his findings, very limited submissions were presented in support of the challenge to the exercise of discretion.
It is true that the primary judge made passing reference on occasion to the conduct of the appellants and indeed, their manner of conducting the case in court. [93] It is by no means clear that the judge's assessments were wrong, but it is not necessary to determine that question. In circumstances where the appellants were seeking an indulgence to permit them to continue what had been held to be unlawful conduct, it was not irrelevant for the judge to consider the extent to which the responsibility for the commercial risk which had eventuated lay at the feet of the appellants themselves. There is no basis to infer that granting of otherwise appropriate relief constituted the execution of an improper purpose.
The other element of the challenge to the exercise of discretion was that a number of factors which should have counted in favour of a more favourable exercise of the Court's discretion; these were not addressed in submissions. [94] Each of the matters relied upon was identified as a finding made in the primary judgment; each was, although not in precisely the same terms, made in consideration of the discretion. [95]
A challenge to the exercise of discretionary factors going to the form of relief, considered at the end of a trial which had proceeded over some 22 days, with a large volume of material tendered, raises a significant challenge for an appellant. To allege improper purpose in failing to accede to the appellants' request for an indulgence in circumstances where the bulk of its contentions and submissions had been rejected, requires a firmer evidential basis than that provided in this case.
The challenge to the exercise of the judge's discretion is rejected. As the appellants having eschewed placing further evidence before this Court to demonstrate a change of circumstances, the relief should be continued on the basis of the existing stay, subject to certain orders being set aside and the reformulation of particular declarations.
The only qualification to the foregoing conclusions arises from the setting aside of order (13), which restrained the appellants from "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 [under the Planning Act] …." Those figures were derived from the findings which respect to existing use rights concerning the eastern land. The interim environmental management plan, pursuant to which the appellants agreed to conduct their operations as a condition of the ongoing stay limited production to 650,000 tpa with a limit of 130 laden trucks being dispatched in any calendar day and 30 laden trucks in any one hour period. There were also limitations on hours of operation.
These figures, it may be noted, permitted the dispatch of quarry products in a figure 30% higher than the unvaried licence issued by the EPA, in circumstances where the variation was properly set aside. Having regard to the history of the matters addressed in the primary judgment in far more detail than is set out above, this Court would not be minded to vary the conditions of the stay favourably to the appellants. The Council did not seek more restrictive conditions.

[66]

I Orders

While no objection was taken to the form of the orders made by the primary judge, which were in the terms sought by the Council, as indicated in the course of the hearing, it is appropriate to reformulate the orders so as to clarify the basis on which declaratory and injunctive relief is provided. To indicate both the orders being replaced and those set aside, orders should be made in the following terms: A. With respect to lots 5 and 6, DP 242210 ("the land"): (1) Set aside declarations (1) and (2) made in the Land and Environment Court and in place thereof: Declare that the consent to development application 171/90/79 granted by Dungog Shire Council ("the consent") permitted use of the land only as a quarry primarily for the purpose of winning material for railway ballast, in breach of which the appellants have since 2012 used the land otherwise than primarily for winning railway ballast, in breach of the Environmental Planning and Assessment Act 1979 (NSW) ("the Planning Act"), s 4.2(1)(a). (2) Set aside declaration (4) and order (5) made in the Land and Environment Court. (3) Set aside declaration (6) made in the Land and Environment Court and in place thereof: Declare that the consent did not extend to the excavation of rock on lot 6, DP 242210 and that the activity of the appellants in extracting rock from lot 6 is carried out without development consent and in contravention of s 4.2(1)(a) of the Planning Act. (4) Set aside declaration (8) and order (9) made in the Land and Environment Court. (5) Set aside declaration (10) made in the Land and Environment Court and in place thereof: Declare that - (i) condition (vi) of the consent prevents the appellants permitting the transport of greatly more than 30% of the products of the quarry by public road on an annual basis without the specific approval of Dungog Shire Council; (ii) condition (vi) applies to rock excavated from the land the subject of the consent, whether processed and dispatched by public road from that land or from adjoining land, including lot 1, DP 1006375; and (iii) the appellants, in transporting in excess of 80% of quarry products by road since 2012 have been and continue to be in breach of condition (vi), and therefore in breach of s 4.2(1)(b) of the Planning Act. (6) Set aside orders (3), (7) and (11) made in the Land and Environment Court and in place thereof: Order that the appellants by themselves, their employees, agents and assigns, be restrained from: (a) using the land otherwise than as a quarry primarily for the purpose of winning railway ballast; and (b) excavating rock on lot 6 DP 242210 without a consent granted for such activity under the Planning Act; and (c) permitting the transport of greatly more than 30% of the quarry products derived from rock excavated from the land, and whether processed on the land or on adjoining land, including lot 1, DP 1006375, by public road on an annual basis without the specific approval of Dungog Shire Council. (7) Set aside declarations (12), (14), (16) and (18) and orders (13), (15), (17) and (19) made in the Land and Environment Court. (8) With respect to processing on lot 5, set aside declaration (20) and order (21) made in the Land and Environment Court. B. With respect to Environment Protection Licence No 1378: (9) Set aside declaration (22) and order (23) made in the Land and Environment Court, and in place thereof: Set aside the determination of the Environment Protection Authority set out in the Notice of Variation No 1071585, dated 2 April 2007, varying EPL 1378 to permit the extraction of between 500,000 tpa and 2 million tpa from the land. C. Stay of orders: (10) Subject to further order of this Court or the Land and Environment Court, and subject to the conditions set out below, stay order (6) for a period of three months from the date of this judgment, or until (a) the determination of the State significant development application lodged by the appellants with respect to the land, and (b) the grant of any further licence or authority required to carry out further works by way of extractive industry on the land, whichever is the earlier. Conditions of stay The stay is subject to the following conditions: (1) All operations conducted at or on the land the subject of the consent, and adjoining land, including lot 1, DP 1006375, on which processing activity is undertaken with respect to rock excavated from the land, shall be carried out in accordance with the interim Environmental Management Plan annexed to the judgment of the Land and Environment Court. (2) The applicants for State significant development consent take all necessary and reasonable steps to ensure the expeditious determination of that application. (3) If and to the extent any steps are required to be taken for the enforcement, variation or termination of the stay, otherwise than by agreement of the parties to these proceedings, application may be made for that purpose to the Land and Environment Court, to which these proceedings shall be deemed to be remitted for that purpose.
GLEESON JA: I agree with Basten JA.

[67]

The nature of the proceedings in the court below

The appellants are the lessee and licensee of lands at Martins Creek, about 4km from the town of Paterson, in the Hunter Valley. The first appellant is the lessee of two parcels of land, which were referred to as the Western Lands and the Eastern Lands. The Western Lands are to the west of Station Street at Martins Creek and comprise Lots 5 and 6 in DP242210. The Eastern Lands are to the east of Station Street and comprise Lot 1 in DP1006375 and Lot 1 DP204377. The title descriptions are the current ones, after consolidation of a number of lots over time.
In November 2012, the first appellant leased the Eastern Lands and part of the Western Lands from Mr Mitchell and another part of the Western Lands from Nodekeda Pty Ltd. A year later, in November 2013, the first appellant granted a non-exclusive licence to the second appellant to occupy and use the Western and Eastern Lands.
The second appellant operates a quarry, called Martins Creek Quarry, on the Western Lands. Some of the quarry products are processed on the Western Lands, by two mobile crushing plants and a manufactured sand processing plant. Most of the quarry products are processed on the Eastern Lands. There is a variety of processing plant and equipment on the Eastern Lands, including primary and secondary crushers, a tertiary crushing plant, a pug mill, and a pre-coat plant.
The Council of the local government area, Dungog Shire Council ("the Council"), has been concerned for some time that the Western and Eastern Lands have been and are being used in breach of the Environmental Planning and Assessment Act 1979 ("EPA Act"). In March 2015, the Council commenced proceedings in the Land and Environment Court to restrain and remedy breaches of the EPA Act.
There was an issue in the Court below about whether both the first and second appellants could be said to be carrying out development on the Western and Eastern Lands (which issue the primary judge identified and numbered in his judgment as issue 9). The primary judge found that both the first and second appellants were carrying out developments on the Western and Eastern Lands. The first and second appellants have not appealed against this finding. The first and second appellants may therefore be referred to collectively as the appellants.
A development consent under the EPA Act was granted in 1991 for a quarry on the Western Lands ("the 1991 consent"). At issue is how that development consent is to be construed and, in particular, what is the nature, extent and other features of the quarry to which consent was granted. It was common ground that the quarry excavates andesite, a hard rock suitable for railway ballast, as well as other products. At issue is whether the 1991 consent approved a quarry for the particular product of railway ballast on a specific quarry site on the Western Lands shown on a plan submitted with the development application (Plan 2) and restricted the quarry to a particular area (of 5 ha) within that specific quarry site rather than the entire 52.5 ha of Lots 5 and 6.
On the Eastern Lands, a development consent was granted in September 1999 for the erection and operation of a fixed tertiary crushing plant on the former Lot 2 DP524511. The tertiary crushing plant crushes materials that have been processed by the primary and secondary crushing plants on the Eastern Lands to provide a finer grade of aggregate than railway ballast. Other quarry products extracted from the Western Lands are processed by other plant and equipment on the Eastern Lands to produce marketable quarry products.
An environment protection licence ("EPL") under the Protection of the Environment Operations Act 1997 ("POEO Act") applies to both the Western and Eastern Lands for the scheduled activities of "extractive industries" carried out on the Western Lands and "crushing, grinding or separating works" carried out primarily on the Eastern Lands.
In the proceedings, the Council contended that the appellants were carrying out the development of the quarry on the Western Lands in breach of the EPA Act in three fundamental ways. First, the appellants were extracting rock outside the area approved by the 1991 consent (being 5 ha within the quarry site shown on Plan 2) and for products other than primarily for railway ballast. Secondly, the appellants were processing rock on the Western Lands that had been extracted from the Western Lands but the 1991 consent did not approve such processing. Thirdly, the appellants were in breach of three conditions of the 1991 consent, condition 1 regulating interference with the amenity of the neighbourhood, condition 6 regulating the modal split of transportation of quarry products by road and rail, and condition 7 ensuring that the environmental safeguards are enforced.
These contentions of breach of the EPA Act on the Western Lands gave rise to issues concerning the construction of the 1991 consent (issue 1 as identified and numbered by the primary judge), the excessive extraction outside the area approved by the 1991 consent (issue 2), the limitation on the quarry products authorised to be extracted to only railway ballast (issue 3), the validity of the conditions of the 1991 consent alleged by the Council to have been breached by the appellants (issue 4), the breaches of these conditions of the 1991 consent (issues 5 and 6), and the carrying out of processing of quarry products on Lot 5 of the Western Lands that was not authorised by the 1991 consent (issue 7).
The Council contended that the appellants were carrying out the development of processing of quarry products on the Eastern Lands in breach of the EPA Act because, other than the processing by the tertiary crushing plant for which development consent had been granted, the processing required development consent but no development consent had been granted authorising the processing of quarry products on the Eastern Lands. The Council contested the appellant's argument that the processing of quarry products on the Eastern Lands was a continuing use under Div 4.11 of the EPA Act, so as not to require development consent. This contention of breach of the EPA Act on the Eastern Lands gave rise to issue 8 in the proceedings concerning the unlawful use of the Eastern Lands.
In the summons commencing the proceedings, the Council also sought judicial review of the variation of the EPL by the Environment Protection Authority ("EPA)" in 2011. The variation had the effect of authorising an increase in the operational scale of the scheduled activities on the Western and Eastern Lands from a maximum of 500,000 tonnes to a maximum of 2,000,000 tonnes of extractive material per annum. The Council contended that the EPA, in so varying the EPL, breached ss 50 and 58 of the POEO Act. This was dealt with by the primary judge as issue 10.

[68]

The primary judge's decision

The primary judge first dealt with the issues concerning development on the Western Lands.
On the construction of the 1991 consent, the primary judge found that the 1991 consent approved the development of a quarry limited to a designated area within Lot 5 of the Western Lands only and did not extend on to Lot 6 (at [155] of the judgment). The area of extraction was limited to 5 ha (at [156], [159], [163]) and was to be contained entirely within the dashed line perimeter of the polygon shown on Plan 2 ([163] of the judgment). The depth of extraction was limited to RL40.0 marked as the quarry floor in Plan 2 (at [160] of the judgment). The products of the quarry were to be limited to "railway ballast" (at [190] of the judgment).
The primary judge so construed the 1991 consent by asking the question of whether the 1991 consent "incorporated" the development application and the environmental impact statement ("EIS") that was required by the EPA Act to accompany the development application as the proposed quarry was designated development. This issue of "incorporation" was framed and numbered as issue 1 by the primary judge.
On whether the development was being carried out not in accordance with the 1991 consent (issue 2), the primary judge found that it was: extraction had moved northward beyond the dashed line perimeter of the area designated as the quarry in Plan 2 on Lot 5 towards the northern boundary of Lot 6. The area of excavation was far in excess of 5 ha (at [169] and [170] of the judgment). This finding that the quarry had extended northwards beyond the designated quarry area on Plan 2 on Lot 5 to Lot 6 was not factually in dispute. The finding of breach therefore logically followed once the 1991 consent had been construed as limiting extraction to the designated quarry area on Lot 5.
On whether the quarry product was limited to railway ballast (issue 3), the primary judge found that the 1991 consent was for a railway ballast quarry. The notice of determination of the development application described the approved development as "An 'Extractive Industry' (Designated Development) being a quarry, winning material primarily for railway ballast" (at [190], [193] of the judgment). The primary judge continued on to identify what he saw to be distinguishing elements of a railway ballast quarry, "essentially being the production of crushed rock of a particular range of grades for railway usage and being largely dependent upon railway rolling stock to transport the raw rock ballast thereby obviating the need for (much) road transport" (at [194] of the judgment).
The primary judge found that the quarry operations had been transformed so as not to satisfy these two distinguishing elements of a railway ballast quarry. First, the quarry product no longer was limited to railway ballast. At some point in time, most probably in 1998 or 1999 when the tertiary crushing plant was introduced, the operations expanded and transformed what had been a railway ballast quarry into a general quarry (at [199] of the judgment). This transformation never had planning approval (at [199]). Secondly, the mode of transport of the quarry products no longer was mostly by rail. Condition 6 of the 1991 consent required that transport by road should not be greatly more than 30% of quarry products on an annual basis ([205] of the judgment). The primary judge found that greatly more than 30% of quarry products were being transported by road (at [356], [357] and [378] of the judgment).
On whether conditions of the 1991 consent were validly imposed (issue 4), the primary judge found that they were. The appellants had argued that they were not validly imposed because the applicant for consent, the State Rail Authority ("SRA"), was a public authority whose written approval was required to any conditions of consent, under s 91A of the EPA Act, but such written approval was not obtained before the Council granted consent subject to conditions on 12 February 1991 and issued the notice of determination of development application on 7 March 1991. The SRA did subsequently approve conditions of consent in April 1991 before the Council resolved to amend the conditions of consent on 14 May 1991, but the appellants argued this was too late. The primary judge held that the Council, by the May resolution, issued development consent subject to conditions which had received the requisite approval of the SRA (at [254], [260] and [262] of the judgment). The primary judge held that as the 1991 consent was issued with approved conditions, no breach of s 91A of the EPA Act occurred (at [255] of the judgment).
As to carrying out development in breach of the conditions of the 1991 consent (issues 5 and 6), the primary judge held that the appellants had breached and were continuing to breach conditions 1, 6 and 7 of the 1991 consent.
The primary judge held that condition 1, requiring the development to be conducted in such a manner as not to interfere with the amenity of the neighbourhood, was breached by trucks carrying quarry products frequently passing through the town of Paterson, thereby interfering with the amenity of the residents of that town (at [320], [328]). The primary judge did not find that the noise of blasting in the quarry had been proved to interfere with the amenity of the neighbourhood (at [341], [343] of the judgment).
The primary judge found that condition 6, requiring the applicant not to permit transport of greatly more than 30% of quarry product by road on an annual basis without the further specific approval of the Council, was breached (at [356], [357] and [378] of the judgment). The primary judge rejected the appellant's arguments that quarry products once processed on the Eastern Lands are no longer "quarry product" covered by condition 6 (at [359]); that the quarry product once processed on the Eastern Lands and then transported from that location has the protection of the continuing use rights of the Eastern Lands, so that condition 6 had no application (at [364] of the judgment); and that the Council had not proven that no "further specific approval of Council" had been obtained allowing greatly more than 30% of quarry products to be transported by road (at [371]-[377]).
The primary judge found that condition 7, requiring that all environmental safeguards proposed for the development and required by the 1991 consent and other statutory approvals are enforced, was breached in numerous ways. The primary judge accepted the Council's submitted construction of condition 7 as requiring 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" (at [425] accepting the Council's argument at [412]).The primary judge found that the environmental safeguards for the purposes of condition 7 included that: the proposal was for a railway ballast quarry as distinct from a more generic quarry (at [434], [438]); the mode of operating the railway ballast quarry was by transporting quarry products by rail (at [426]); and condition 1 protected the amenity of the neighbourhood (at [427]). The primary judge did not accept the Council's submission that an environmental safeguard was a limit on the annual production, finding that the 1991 consent "approved a quarry without limiting it to an annual production rate" (at [438]).
The primary judge found that these environmental safeguards had been breached (at [448]).
In relation to the processing of rock extracted from the Western Lands using two mobile crushing plants and a manufactured sand processing plant on the Western Lands (issue 7), the primary judge found that the processing of rock could be ancillary to quarrying of rock that occurred lawfully (at [464], [465]). However, the rock that was being processed was not being quarried lawfully pursuant to the 1991 consent, the ancillary use having become unlawful when the dominant use became unlawful (at [467]-[470]).
The primary judge next dealt with the issue concerning the Eastern Lands of whether the processing of quarry products was unlawful (issue 8). The appellants had accepted that, other than the development consent for the tertiary crushing plant, no development consent authorised the processing of quarry products carried out by the appellants on the Eastern Lands. The appellants had argued, however, that no consent was required to be obtained because the processing was a continuing use protected by the former s 109(1) and the current s 4.68(1) of the EPA Act. The primary judge rejected the appellants' argument (at [602]).
The primary judge accepted that there had been an existing use for the lawful purpose of a railway ballast quarry (at [619]), involving extraction on the Eastern Lands, together with ancillary processing of crushed rock (at [624]). The extraction on the Eastern Lands ceased in 1993, two years after the grant of the 1991 consent approving extraction on the Western Lands (at [624]). The primary judge held that despite the cessation of extraction on the Eastern Lands, it was lawful for processing of rock extracted from the Western Lands to continue on the Eastern Lands: "processing operations occurring on the Eastern Lands were ancillary to the lawful extraction occurring on the Western Lands, and so could lawfully continue" (at [630]).
However, the primary judge found that this ancillary purpose of processing on the Eastern Lands was only lawful as long as the dominant purpose of extraction on the Western Lands remained lawful (at [630], [632], [635]). The primary judge found that, as extraction on the Western Land was contrary to planning law (at [633], [634]), the ancillary land use of processing on the Eastern Lands was also contrary to planning law (at [636] and [678(6)]).
In response to the appellants' alternative argument that the processing of quarry products on the Eastern Lands was development for railway undertaking (as described in cl 35 and Sch 1 of the Environmental Planning and Assessment Model Provisions 1980), the primary judge held that if the processing could be so classified so that there had been an exemption from the need to obtain development consent, on the transfer of the Eastern Lands from a government rail entity to the first appellant, that exemption fell away (at [667], [670], [671]).
On either argument, the primary judge found that the appellants had not established that they were entitled to rely on the continuing use rights protection afforded by s 109(1) (now s 4.68(1)) of the EPA Act (at [673]).
Having addressed the Council's civil enforcement case that the appellants have been and are carrying out development on the Western and Eastern Lands in breach of the EPA Act, the primary judge turned to address the Council's judicial review case that the EPA's variation of the EPL was invalid (issue 10). The primary judge found that the EPA had varied the EPL in breach of two provisions of the POEO Act, first, s 58(6) by failing to invite and consider public submissions prior to varying the licence in circumstances where it was required to do so and, secondly, s 50(2) because the EPL related to development that did not have the requisite development consent or the benefit of a statutory existing use privilege (at [768]).
As to the first statutory provision, the primary judge found that the questions to be determined pursuant to s 58(6)(a) and (b) constitute jurisdictional facts (at [770], [773]) and, on the evidence, those jurisdictional facts have been established. As to the matter in paragraph (a), the proposed variation of the EPL would authorise a potential fourfold increase in production capacity at the quarry, from 500,000 tonnes to 2,000,000 tonnes per annum, which would authorise a significant increase in the environmental impact of the activity authorised and controlled by the licence (at [798]). As to the matter in paragraph (b), the proposed variation had not been the subject of environmental assessment and public consultation under the EPA Act (at [799]). The EIS that accompanied the development application for the development that was approved by the 1991 consent assessed extraction of between 250,000 to 300,000 tonnes per annum, far less than the potential 2,000,000 tonnes per annum authorised by the variation of the EPL (at [800]). The primary judge held, therefore, that the EPA was obliged by s 58(6) to invite and consider public submissions before it varied the EPL (at [800]).
As to the second statutory provision, the primary judge found that the development the subject of the EPL variation did not have the requisite development consent. The primary judge found that no development consent had been granted for the primary and secondary processing of quarry products on the Eastern Lands but only for the tertiary crushing plant, and the development consent that had been granted for extraction on the Western Lands (the 1991 consent) approved the extraction of 250,000 to 300,000 tonnes per annum, not the potential 2,000,000 tonnes per annum authorised by the proposed variation of the EPL (at [809]). The variation of the EPL was thus granted in breach of s 50(2) (at [809]).
The final issue addressed by the primary judge was what relief should be granted to remedy the breaches of the EPA Act and POEO Act that he had found established. This was identified and numbered by the primary judge as "issue 11: discretion". The primary judge determined that declaratory and injunctive relief should be granted concerning the unlawful extraction on the Western Lands (orders 1-11); the unlawful processing on the Eastern Lands (orders 12-19); the unlawful processing on the Western Lands (order 20 and 21); and the invalid variation of the EPL (orders 22 and 23). The primary judge stayed the injunctive orders for three months on terms regulating the carrying out of the development on the Western and Eastern Lands (order 24). The primary judge granted leave to apply to extend the three month stay (order 25). The primary judge ordered the appellants to pay the Council's costs of the proceedings (order 26).

[71]

Construction of the 1991 consent

The Council's claim was that the appellants were carrying out quarrying and processing on the Western Lands other than in accordance with the 1991 consent in four ways: first, quarrying was occurring outside of the area approved by the 1991 consent, secondly, quarrying was for products other than for railway ballast, thirdly, processing of quarry products on the Western Lands was not authorised by the 1991 consent, and fourthly, breaching conditions of the 1991 consent. Resolution of these claims requires construction of the 1991 consent in order to ascertain what is the nature, extent and other features of the development for which consent was granted.
The primary judge approached this task by enquiring whether certain documents, principally the development application and EIS, which were referred to as "extrinsic material", were "incorporated" into the consent. This enquiry diverted the primary judge from addressing the central question of the construction of the 1991 consent.
A development consent granted under the EPA Act is to be construed having regard to the statutory provisions governing its grant. Care needs to be taken not to substitute for the primacy of the statutory provisions governing the grant of a development consent, "principles" built up from judicial decisions on the construction of consents under former planning legislation (the Local Government Act 1919) and applied to current planning legislation (the EPA Act). Three judicial decisions that have particularly founded "principles" for interpretation of development consents are Ryde Municipal Council v The Royal Ryde Homes (1970) 19 LGRA 321 at 323-324 (Else-Mitchell J); Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434 (Hope J); and Parramatta City Council v Shell Co. of Australia Ltd [1972] 2 NSWLR 632 at 637 (Hope JA with whom Jacobs and Manning JJA agreed), which concerned the grant of development consent under Pt XIIA and building approval under Part XI of the Local Government Act 1919. The statutory provisions of Pt XI and Pt XIIA of the Local Government Act 1919 regulating the making, considering and approving of building applications and development applications respectively are different in material respects to the statutory provisions regulating the making, considering and approving of development applications under the current EPA Act.
Although said in reference to different legislation, it is relevant in construing the current statutory provisions of the EPA Act to heed the High Court's advice that caution is required in construing legislation by reference to "principles" derived from judicial decisions construing other legislation: judicial decisions construing similar or even identical legislation in other jurisdictions are guides to, but cannot control, the meaning of the legislation in the court's jurisdiction: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; [2008] HCA 5 at [31].
At the time of the grant of the 1991 consent, the statutory provisions governing the making, consideration and determination of a development application for consent to carry out development were in the Environmental Planning and Assessment Act 1979, in the form that then applied, and the Environmental Planning and Assessment Regulation 1980 ("EPA Regulation 1980"). I will set out the statutory framework that then applied. I will add in brackets reference to the current statutory provisions to show the continuing relevance and applicability of the statutory framework.
The EPA Act provided for a threefold classification of development: development that did not need consent, development that needed consent and development that was prohibited: s 76(1), (2) and (3) (see now Div 4.1) of the EPA Act. Development, in relation to land, involved the erection of a building on that land, the carrying out of a work in, on, over or under that land, the use of that land or a building or work on that land, or the subdivision of that land: s 4 (see now s 1.5(1)) of the EPA Act.
Some classes or descriptions of developments were declared to be "designated development" by an environmental planning instrument or the regulations: ss 4, 29 and 158 (see now s 4.10) of the EPA Act. The EPA Regulation 1980 declared development described in Sch 3 to be designated development: cl 70(1) (see now cl 4(1) of the EPA Regulation 2000). Amongst the types of development declared to be designated development in Sch 3 of the EPA Regulation 1980 were "extractive industries" and "crushing, grinding or milling works". "Extractive industries" was defined, in part, to involve the winning of extractive material, not being coal, petroleum or any mineral within the meaning of the Mining Act 1973 or an industry or undertaking not being a mine, which depends for its operations on the winning of extracted material from the land upon which it is carried on: paragraph (n) of Sch 3 of the EPA Regulation 1980. "Crushing, grinding or milling works" was defined to be "works in which more than 200 tonnes per annum of rock, ores, minerals, chemicals or natural grain products are processed by crushing, grinding, milling or separating into different sizes": paragraph (k) of Sch 3 of the EPA Regulation 1980 (see the equivalent terms as defined in Sch 3 of the EPA Regulation 2000).
The EPA Act provided that a person must not carry out development that needs consent without first obtaining that consent and then carrying out the development in accordance with that consent: s 76(2) (see now s 4.2(1)) of the EPA Act. A person must also not carry out development that is prohibited: s 76(3) (see now s 4.3) of the EPA Act.
A development application can only be made for development that needs consent: ss 76(2) and 77 (see now ss 4.9 and 4.12) of the EPA Act. A development application has to be made in the form and manner prescribed by the regulations to the relevant consent authority seeking consent to carry out development: s 77(3)(a) and (b) (see now s 4.12(1)) of the EPA Act. If the development is designated development, the development application needs to be accompanied by an environmental impact statement prepared by or on behalf of the applicant in the form prescribed by the regulations: s 77(3)(d) (see now s 4.12(8)) of the EPA Act.
The EPA Regulation 1980 prescribed the form and content for the development application and any required accompanying documents such as an environmental impact statement. The prescribed form for a development application was Form 3 and the prescribed form for an environmental impact statement was Form 4: cl 26(1)(a) and (b) of the EPA Regulation 1980 (see now cl 50 of the EPA Regulation 2000). Form 3 and Form 4 were contained in Sch 4. A form contained in Sch 4 was to be completed in accordance with such instructions as are specified in the form (cl 73(2) of the EPA Regulation 1980). Strict compliance with the forms contained in Sch 4 was not necessary, and substantial compliance was sufficient (cl 73(1) of the EPA Regulation 1980).
In Form 3, the form for a development application, the applicant was required to state that they "hereby apply for development consent to carry out the development described below". Form 3 required a description of the development: "B Description of development or other activity (eg advertisement, demolition, etc) for which development consent is sought… …………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………………. Where development involves the erection of a building, the proposed use of that building when erected: ………………………………………………………… NOTE: Plans/drawings and other information (in triplicate) describing the development must accompany the application - Refer to Notes 3 and 4 of Instructions for Completing Development Application"
Notes 3 and 4, to which reference was made in Form 3, were contained at the end of Form 3 under the heading "NOTE: Instructions for Completing Development Application". As cl 73(2) of the EPA Regulation 1980 required, Form 3 was to be completed in accordance with the instructions in Notes 3 and 4.
Note 3 required a plan or drawing (in triplicate) fully describing the proposed development to accompany the application and, where applicable, that plan or drawing had to indicate the following: "(a) The location of proposed new buildings or works (including extensions or additions to existing buildings or works) in relation to boundaries of the land…"
Note 4 required: "the following information shall, where applicable, accompany the development application: … (e) in the case of development relating to an existing use - details of the existing use."
Form 3 also required a description of the environmental impact of the proposed development. The form required the application to be accompanied either by an environmental impact statement (if designated development) or information as to the impact of the proposal (if not designated development).
Section D "Environmental Impact of Proposed Development" of Form 3 referred to "Notes 5 and 6 of the Instructions for Completing Development Application". Note 5 was that: "An environmental impact statement must accompany the application where proposed development is designated development."
Note 6 applied where the proposed development was not designated development.
Form 4, the form for an environmental impact statement, required the applicant to describe the development the subject of the development application: "The Statement accompanies the development application made in respect of the development described as follows". The Form stated that: "The contents of this statement, as required by clause 34 of the Environmental Planning and Assessment Regulation 1980, are set forth in the accompanying pages". The accompanying pages were evidently the environmental impact statement.
Clause 34 of the EPA Regulation 1980 prescribed the contents of an environmental impact statement, including: "(a) a full description of the designated development proposed by the development application; (b) a statement of the objectives of the proposed designated development; (c) a full description of the existing environment likely to be affected by the proposed designated development, if carried out; (d) identification and analysis of the likely environmental interactions between the proposed designated development and the environment; (e) analysis of the likely environmental impacts or consequences of carrying out the proposed designated development (including implications for use in conservation of energy); (f) justification of the proposed designated development in terms of environmental, economic and social considerations; (g) measures to be taken in conjunction with the proposed designated development to protect the environment and an assessment of the likely effectiveness of those measures; (g1) details of energy requirements of the proposed development and measures to be taken to conserve energy; (h) any feasible alternatives to the carrying out of the proposed designated development and reasons for choosing the latter; (i) consequences of not carrying out the proposed designated development."
All of these matters focus on the particular designated development proposed by the development application. (The current form and content requirements for a development application and an environmental impact statement for designated development are in s 4.64(1)(e), (j) and (k) of the EPA Act and cl 50 and Sch 1 and 2 of the EPA Regulation 2000).
Where a development application is made to carry out designated development, the consent authority is required to give public notice of the development application, in the form and manner prescribed: s 84(1) and (4) of the EPA Act and cll 37-39 of the EPA Regulation 1980 (see now s 4.64(1)(g) of the EPA Act and cll 77-80 of the EPA Regulation 2000). The public may inspect the development application referred to in the notice and documents accompanying that application, which include the accompanying environmental impact statement: s 86 of the EPA Act (see now s 4.64(1)(g) and (l) and Sch 1, Div 2 and 3 of the EPA Act and cl 78(1)(e) and (f) of the EPA Regulation 2000).
Any person may, during the submission period, make a submission in writing to the consent authority, including by way of objection to the development application: s 87(1) of the EPA Act (see now s 4.64(1)(l) of the EPA Act and cl 78(1)(f) of the EPA Regulation 2000). The consent authority is to forward copies of all submissions by way of objection to the Minister or Planning Secretary: s 87(2) and (3) of the EPA Act (see now cl 81 of the EPA Regulation 2000).
A person who made a submission by way of objection during the submission period is an objector who is entitled to appeal to the Land and Environment Court against any determination of the consent authority to grant development consent to the designated development: s 98(1) of the EPA Act (see now s 8.8(2) of the EPA Act).
The consent authority was required to consider and determine the development application that had been made. The consent authority, in determining the development application, was required to take into consideration such of the matters in s 90(1) (now s 4.15(1)) of the EPA Act as were of relevance to "the development the subject of that development application", including the impacts of that development on the environment: s 90(1)(b) (see now 4.15(1)(b) of the EPA Act).
The consent authority was required to determine the development application by granting consent to that application, either unconditionally or subject to conditions, or by refusing consent to that application: s 91(1) (see now s 4.16(1)) of the EPA Act. The consent authority may grant consent subject to such conditions as may be imposed by s 91(3) (now s 4.17) of the EPA Act. Of critical importance is that a condition of consent that controls the development to be carried out needs to relate to "the development the subject of the consent" (s 91(3)(a) now s 4.17(1)(a)) or "the development the subject of the development application" (s 91(3)(g) now s 4.17(1)(g) of the EPA Act).
After a consent authority determined a development application, it had to give notification to the applicant of the determination of the development application in the form and manner prescribed by the regulations: s 92(1) (now s 4.18) of the EPA Act. The EPA Regulation 1980 prescribed a form, Form 7, for the notice of determination: cl 44(1) of the EPA Regulation 1980. Form 7 required identification of the development application and how that development application had been determined, by the grant or refusal of consent, and if by the grant of consent, the conditions of consent (see now cl 100 of the EPA Regulation 2000).
For designated development, the consent authority was also required to notify, in the prescribed form, time and manner, each person who made a submission by way of objection to the development application: s 95 (now s 4.18(3)) of the EPA Act. The EPA Regulation 1980 prescribed a form, Form 8, for notifying objectors of the determination of the development application for designated development: cl 45(1). The notification was required to include a copy of the notice of determination given to the applicant (cl 45(2)). Form 8 identified the development application and how the development application had been determined by the granting or refusing of consent, as well as "brief particulars of development".
The development consent became effective and operated from the date of consent that was endorsed, as prescribed, upon the notice of determination, except in the case of designated development to which any objection had been made, in which case the consent became effective and operated from the expiration of 28 days from the date of consent that was endorsed, as prescribed, upon the notice of determination: s 93(1) of the EPA Act. The date of consent that was required to be endorsed upon the notice of determination was the date on which the notice was posted or delivered: cl 44(4) of the EPA Regulation 1980) (now, a development consent has effect on and from the date it is registered on the NSW Planning Portal: s 4.20(1) and (2) of the EPA Act).
Each council was required to maintain a register of development applications and development consents: s 104(1) of the EPA Act and cl 50 of the EPA Regulation 1980 (see now s 4.58 of the EPA Act and cl 264 of the EPA Regulation 2000). Amongst the documents that the register was required to contain were a copy of the development application which had been determined by the granting of the consent and a copy of the notice of determination granting the consent (see now cl 264 and 266 of the EPA Regulation 2000). The Council had to make the register available for public inspection: s 104(2) of the EPA Act (see now cl 268(1) of the EPA Regulation 2000).
This summary of the statutory provisions regulating the making, consideration and determination of development applications and the notification of determination of development applications under the EPA Act reveals the central relationship between the development application and the development the subject of the development application on the one hand and the development consent on the other.
A development application seeks consent to carry out the particular development described in the application. A development application is determined by the granting or refusing of consent to that application. A development consent is therefore the determination of a development application by the grant of consent to the development for which consent was sought in that development application. A purported exercise of the power to grant development consent will not be valid unless it constitutes "the granting of consent to that application" (the words of the former s 91(1)(a)) or "granting consent to the application" (the words of the current s 4.16(1)(a)): see Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 at [13] and Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 737. As Basten JA framed the proposition, "that to which the consent is given must accord with that for which application had been made": GPT Re Ltd v Belmorgan Property Development Pty Ltd (2008) 72 NSWLR 647; [2008] NSWCA 256 at [44].
The High Court held in Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50 at [14]: "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."
Development consent cannot be granted for development of a nature different to or to an extent or with other features greater than the development for which consent was sought in the application. As this Court noted in Sericott v Snowy River Shire Council (1999) 108 LGERA 66; [1999] NSWCA 480 at [46], a development consent can "be no wider than the application to which it relates." Development consent can be granted for less than the development sought in the development application. Under the current s 4.16(4) of the EPA Act, a development consent may be granted for the development for which the consent is sought, or for that development except for a specified part or aspect of that development, or for a specified part or aspect of that development. But development consent cannot be granted to development greater than the development for which the consent is sought.
One example is the development of a wind farm. The development application may seek consent for a particular number of wind turbines at particular locations. Development consent could be granted for the number of wind turbines at the locations proposed in the development application (this being the development for which the consent is sought) or for that development except for specified wind turbines proposed in that development application that are found to be unacceptable or for only specified wind turbines proposed in that development application that are found to be acceptable: see Taralga Landscape Guardians Inc v Minister for Planning (2007) 161 LGERA 1; [2007] NSWLEC 59. But consent could not be granted for a greater number of wind turbines than was proposed in the development application. That would not be a determination of the development application that had been made by "granting consent to the application".
Another example, closer to the facts of this case, is a quarry. The development application, as required by the statutory provisions regulating the making of a development application, may describe the particular development to be carried out and show in the accompanying plans the location of the proposed quarry works and any buildings in relation to the land's boundaries and adjoining development and the dimensions of those works and buildings (such as depth or height above ground level and width and length). Those descriptions of the development define the development for which the consent is sought. Development consent could be granted for the development for which the consent is sought, or for that development except for a specified part or aspect of that development (such as a specified part of the proposed quarry or a specified building) or for only a specified part or aspect of the development. But development consent could not be granted to carry out a development other than the development for which the consent is sought, such as to extract rock from the whole of the land and not only the particular part of the land identified in the development application, by the location and dimensions specified, as the quarry. The development consent cannot approve a greater development than the development for which the consent is sought in the development application.
This was the situation in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103. The development application sought consent for a blue metal quarry in a particular area, identified by a circle on a plan accompanying the development application, within the larger development site. At issue was whether the development consent permitted quarrying operations over the whole of the development site or only in the smaller area identified in the plan accompanying the development application. Meagher and Ward JJA, Macfarlan JA dissenting, held that the development consent only approved quarrying operations in the smaller area identified in the plan accompanying the development application and not over the whole of the development site: at [55] and [201]. Their Honours considered it was permissible to refer to the development application and accompanying documents in order to identify the area in respect of which quarrying had been approved. But recourse to the development application and accompanying documents was also necessary in order for the consent to be a valid exercise of the power to determine the development application. If the development for which the consent was sought in the development application was to quarry in a specifically designated area within the larger development site, as identified in the plan accompanying the development application, development consent could not be granted to quarry the whole of the development site. That would not be to grant consent to the application.
The development to which consent has been granted might, therefore, not be able to be meaningfully identified without reference to the development application and the documents accompany the development application, including the plans, which describe and define the development for which the consent is sought.
The point has been recognised by this Court. In Stebbins v Lismore City Council (1988) 64 LGRA 132 at 135, Mahoney, Priestley and Clarke JJA held that: "The notice of determination of the development application should, we think, be read together with the plan. The written form of application is meaningless unless the plans accompanying it are considered as part of the application. Similarly when the notice of consent refers to the determination of the development application it must be referring to the application including the plans without which that application would not be an application at all. The consent as granted was to an application incorporating a plan…"
In Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277; [2006] NSWCA 23 at [34], Basten JA, with whom Handley JA and Hunt AJA agreed, recognised that "in identifying the development to which consent is being given, it will often be appropriate (and even necessary) for the consent authority to refer specifically to those accompanying documents which identify the nature and style of the proposed development."
A similar point was made by Doyle CJ in Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189 at [45], cited with approval by Meagher JA in Allandale Blue Metal Pty Ltd v Roads and Maritime Services at [48], that: "The primary document is the development authorisation itself. This is the case whether one is dealing with a provisional development plan consent or with a development approval. It is the authorisation (here embracing a consent or an approval) the meaning of which is in question. But usually, perhaps always, a development authorisation will be meaningless without reference to the plans or proposals submitted by the applicant. In principle 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. This must be permissible when, as here, the development authorisation makes express reference to those plans, by referring to "details and plans" submitted as part of the application."
In order for a development application to be complete and effective, it must be made in the prescribed form and manner, contain the prescribed information and be accompanied by the prescribed documents. The information to be included in the development application includes a description of the proposed development and the development application must be accompanied by a site plan and a sketch of the development showing the location and dimensions of the proposed development (typically these are the architectural or engineering plans showing the buildings or works proposed).
A development application for designated development is required to be accompanied by an environmental impact statement (the former s 77(3)(d) of the EPA Act and cl 26 of the EPA Regulation 1980 and the current s 4.12(8) of the EPA Act and cl 50 and Sch 1 and 2 of the EPA Regulation 2000). The development application form expressly required an environmental impact statement to accompany the development application where the proposed development was for designated development.
As I noted in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 at [97], with which Basten JA and Leeming JA agreed: "The development application will be "ineffective and incomplete" whilst so ever the development application does not contain the information and is not accompanied by the documents that the EPA Act and the Regulation require to be provided in order for the consent authority to validly exercise the power to determine the development application. There can be no valid determination of the development application until there is substantial compliance with such statutory prescriptions: McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 at [189].
In particular, a consent authority has no power to determine a development application for designated development unless the development application is accompanied by an environmental impact statement: Helman v Byron Shire Council (1995) 87 LGERA 349 at 358-359 and Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at [106]-[108]. An environmental impact statement is not merely information supporting a development application for designated development, but is a critical part of the development application necessary to enliven the power of the consent authority to determine the development application.
In these circumstances, reference may legitimately be made to the development application and the accompanying documents, including an environmental impact statement where the proposed development is designated development, in order to identify the nature, extent and other features of the development the subject of the development application and to which consent has been granted.
It is in this statutory context that the 1991 consent needs to be construed. I agree with Basten JA that it is appropriate, indeed necessary, to examine the development application and documents, including the environmental impact statement, that were statutorily required to accompany the development application in order to understand the nature, extent and other features of the development for which consent was sought and to which consent could lawfully be granted. That examination reveals, amongst other things about the development for which the consent was sought, that the nature of the development was a quarry for the purpose of winning material primarily for railway ballast, and the extent of the development involved extraction of around 10ha on Lot 5 in the location of the dotted line polygon shown on Plan 2 in the EIS that accompanied the development application. Identification of this nature and this extent of the proposed development is sufficient to permit resolution of the Council's claims that the appellants are carrying out development not in accordance with the 1991 consent.

[76]

Contravention of condition 1

Condition 1 of the revised conditions of the 1991 consent provided that: "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."
The primary judge found that increased road transportation of quarry products by trucks driving through the town of Paterson interfered with the amenity of residents in Paterson in respect of noise. The appellants challenged this finding on a variety of bases. But the one that I find to be successful is that the driving of trucks through the town of Paterson is not itself the carrying out of the development to which consent was granted. The development the subject of the 1991 consent is the quarrying operation on the Western Lands. Of course, quarry products resulting from that development need to be transported from that land to customers. One condition of consent (condition 6) specified that the modal split for the transportation of quarry products be that not greatly more than 30% be transported by road and the balance by rail. But this condition did not cause the transportation of the quarry products along the roads or the railway lines to be part of the development for which consent was sought in the development application and to which consent was granted by the 1991 consent.
Condition 1 of the 1991 consent regulated the carrying out of "the development" the subject of the consent, which is the quarrying operations on the Western Lands but not the transportation of quarry products from that land. It is the development the subject of the 1991 consent that must not interfere with the amenity of the neighbourhood, not the transportation of quarry products from that development.
In these circumstances, even if the trucks transporting quarry products interfered with the amenity of the residents of Paterson when they drove through the town (as the primary judge found), this would not result in a breach of condition 1 of the 1991 consent.
This conclusion, however, does not have any consequence. The primary judge did not make an order to remedy a breach of s 76A(1)(b) of the EPA Act resulting from any breach of condition 1. Hence, there is no order to set aside.

[78]

Contravention of condition 7

Condition 7 of the revised conditions of the 1991 consent required the applicant to: "(b) Ensure that all environmental safeguards proposed for the development and required by this consent and other statutory approvals are enforced."
The appellants challenged the primary judge's construction of this condition as requiring enforcement of three categories of environmental safeguards: "(1) all environmental safeguards proposed for the development; (2) all environmental safeguards required by the 1991 consent; and (3) all other statutory approvals."
I agree with the appellants that the primary judge may have misconstrued this condition. However, this misconstruction has no particular consequence, having regard to what the primary judge found the environmental safeguards to be. The primary judge found that the environmental safeguards for the purposes of Condition 7 included that: the proposal was for a railway ballast quarry as distinct from a more generic quarry; the mode of operating the railway ballast quarry was by transporting quarry products by rail; and condition 1 protected the amenity of the neighbourhood.
Each of these environmental safeguards, however, are sourced in the 1991 consent and it is not necessary to have recourse to the environmental safeguards proposed for the development (the primary judge's first category) or other statutory approvals (the primary judge's third category). The only source is the 1991 consent (the primary judge's second category).
Hence, the three environmental safeguards identified by the primary judge as required by condition 7 of the 1991 consent - the approved purpose of the development being a quarry for the purpose of winning material primarily for railway ballast, the modal split for the transportation of quarry products required by condition 6 and the protection of the amenity of the neighbourhood required by condition 1 - add nothing to what was already required by the 1991 consent. There can be, therefore, no different contravention of the 1991 consent by not complying with these environmental safeguards. The appellants have carried out the quarry not for the purpose for which the 1991 consent was granted and in contravention of the modal split for transportation of quarry products required by condition 6. They have not contravened condition 1 by driving trucks through Paterson, even if those trucks interfered with the amenity of the residents of Paterson.
In these circumstances, there is no utility in making any orders to address any contravention of condition 7; it will suffice to make orders addressing the other contraventions of the 1991 consent.

[80]

Unlawful development on Eastern Lands

The Council claimed, and the primary judge found, that the appellants were carrying out on the Eastern Lands processing of rock extracted from the Western Lands in breach of the EPA Act. The primary judge's finding that the processing of the rock extracted from the Western Land was unlawful was dependent on the primary judge's finding that the extraction of rock from the Western Lands was unlawful.
I have my doubts that there still could be a lawful use of the Eastern Lands for the processing of extracted material. The processing of extracted material was ancillary to the dominant use of extraction of rock on the Eastern Lands. Extraction of rock on the Eastern Lands ceased in 1993. Thereafter, any processing was of rock extracted not from the Eastern Lands but rather from other land, being the Western Lands. There is a real question whether such processing thereupon became unlawful: it was no longer ancillary to a dominant lawful use of the Eastern Lands, but became an independent use with no lawful source of authority.
Nevertheless, it is not necessary to determine this question. As Basten JA points out, the Council's claim and the primary judge's finding concerning processing of extracted material on the Eastern Lands were not needed. If orders were to be made to remedy the unlawful extraction of rock from the Western Lands, the unlawful processing of extracted rock on the Eastern Lands would necessarily also be remedied. There was no suggestion that the appellants are processing rock extracted from anywhere other than the Western Lands.
In these circumstances, I agree with Basten JA that there is no need to determine the issues of whether there is still any continuing use of the Eastern Lands for the processing of extracted material or, if so, whether there has been an enlargement, expansion or intensification of any such continuing use without consent. Furthermore, because the appellants have sought consent in the State significant development application for extraction of rock from the Western Lands and processing of extracted material on the Eastern Lands, there is reason not to do so.

[82]

Breach of s 58(6) of POEO Act

The primary judge was correct to find a breach of s 58(6) of the POEO Act. As Basten JA explains, the conditions in s 58(6)(a) and (b) are jurisdictional facts and, in this case, they were satisfied. The proposed variation of the EPL did authorise a significant increase in production capacity at the quarry, from the 500,000 tpa limit in the EPL before variation to the 2,000,000 tpa limit after variation of the EPL. It mattered not whether the operators would actually increase production at the quarry to the limit permitted; the operation of s 58(6) turns on the production capacity that the variation will "authorise". An increase in production capacity to the limit authorised by the proposed variation of the EPL would in turn authorise a significant increase in the environmental impact of the activity authorised by the EPL.
As Basten JA points out, the greatest single environmental impact of the quarry is the level of truck movements involved in transporting quarry products to customers. The level of truck movements is proportionate to production capacity: a significant increase in production capacity will significantly increase truck movements, which in turn will significantly increase environmental impacts. Hence, the proposed licence variation "will authorise a significant increase in the environmental impact of the activity authorised or controlled by the licence," being the jurisdictional fact in s 58(6)(a) of the POEO Act.
As a matter of fact, the proposed licence variation had not been the subject of environmental assessment and public consultation under the EPA Act, being the jurisdictional fact in s 58(6)(b) of the POEO Act. It mattered not, contrary to the appellants' argument, that the development the subject of the 1991 consent had been the subject of environmental assessment and public consultation under the EPA Act. That development was not the development that would be authorised by the proposed licence variation. It is the development that would be authorised by the proposed variation of the EPL, with its significantly increased production capacity and environmental impacts, that needed to be the subject of environmental assessment and public consultation under the EPA Act. That development, however, had not been the subject of such environmental assessment and public consultation.
As these jurisdictional facts in s 58(6) were met, the EPA was obliged to invite and consider public submissions before it varied the EPL. The EPA did not do so and thereby varied the EPL in breach of s 58(6) of the POEO Act.

[83]

Relief to remedy statutory breaches

There could be no meritorious basis for withholding relief in the judicial review proceedings to set aside the EPA's variation of the EPL made in breach of ss 50(2) and 58(6) of the POEO Act. The form of the orders made by the primary judge, however, should be simplified as proposed by Basten JA.
The appellants' arguments for withholding relief to remedy the ongoing breaches of the EPA Act in the civil enforcement proceedings are also unmeritorious, as Basten JA explains. The breaches, having been established, should be remedied. The appellants have not shown any sound basis for why they should be allowed to continue to breach the law in material respects. Extraction is occurring far beyond the area approved by the 1991 consent, for products other than primarily for the railway ballast that had been approved by the 1991 consent, and in contravention of a fundamental condition of the 1991 consent, condition 6, requiring that not greatly more than 30% of quarry products be transported by road on an annual basis. Orders should be made to enforce compliance with the 1991 consent.
The appellants have sought to regularise extraction and processing activities by making a State significant development application seeking consent for these activities. That application is pending determination. The primary judge stayed his orders for a period of 3 months to allow the making and determination of the State significant development application. That time has now expired. This Court extended the stay of orders until the determination of the appeal to this Court. The Council, at the hearing of the appeal, agreed to a further stay of any orders made by this Court for a further period of 3 months. I agree that a grant of one further stay of 3 months is appropriate to allow time for the State significant development application to be determined and for the appellants otherwise to arrange their affairs and operations to comply with the law.
Of course, orders of the primary judge found not to be supported by conclusions of this Court need to be set aside or varied as is appropriate having regard to the conclusions. Basten JA explains the changes in orders that should be made. I agree with the orders he proposes.

[84]

Endnotes

Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153; 234 LGERA 1.
Reference to provisions of the Planning Act, unless otherwise indicated, are to the Act as in force in 1991.
Regulation, cl 41B(1)(a).
Planning Act, s 91A(1).
Tcpt, 08/05/19, p 151(15)-(25).
NSW Government Gazette No 90, 9 July 1965, p 2168.
Parramatta City Council v Brickworks Ltd (1972) 128 CLR 1; [1972] HCA 21; Eaton & Sons Pty Ltd v Council of the Shire of Warringah (1972) 129 CLR 270; [1972] HCA 33; Norman v Council of the Shire of Gosford (1975) 132 CLR 83; [1975] HCA 15.
Tcpt, 07/05/19, p 111(38)-(46).
See definition of "public authority", Planning Act, s 4(1).
Amended defence, 9 June 2016, par 35(b).
For basis of inference, see primary judgment at [232].
Primary judgment at [260(l)]
Primary judgment at [261].
Planning Act, ss 30 and 31.
Planning Act, s 77(3)(d).
Planning Act, s 84(1)(a)(i).
Planning Act, s 84(1)(c).
Planning Act, s 86.
Planning Act, s 87(1).
Planning Act, ss 88 and 119(1)(b).
[2001] NSWCA 17; 130 LGERA 508.
Cf Pselletes v Randwick City Council (2009) 77 NSWLR 287; [2009] NSWCA 262 at [44]-[47], where reliance was placed on a report before the Council to identify the scope of the consent.
[1999] NSWCA 480; 108 LGERA 66.
[2007] HCA 50; 82 ALJR 74.
(1991) 23 NSWLR 734 at 737A-B.
1980 Regulation, Sch 4, form 3.
1980 Regulation, Form 3, Pt D and note 5.
(1995) 184 CLR 163 at 180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); [1995] HCA 58.
(1971) 67 LGRA 427 at 433-434.
(1970) 19 LGRA 321.
Ryde Municipal Council at 323.
[1972] 2 NSWLR 632 at 637.
(1988) 64 LGRA 132 (Mahoney, Priestley and Clarke JJA).
Stebbins at 134-135.
(1998) 100 LGERA 365.
Currey at 368.
[2006] NSWCA 23; 143 LGERA 277 (in my judgment, with which Handley JA and Hunt AJA agreed).
[2013] NSWCA 103; 195 LGERA 182 at [42]-[48] (Meagher JA) and [154]-[163] (Ward JA).
Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd [2006] NSWCA 273; 148 LGERA 439.
[2004] SASC 373; 137 LGERA 189 at [45] (Duggan and Anderson JJ agreeing).
Letter, 7 March 1991, from the Shire Clerk to the SRA.
(1979) 140 CLR 675 at 681; [1979] HCA 20.
[2006] NSWLEC 99; 144 LGERA 408.
Sansom v Port Stephens Council [2006] NSWLEC 475; 147 LGERA 203 (Pain J); primary judgment at [187].
Kentucky Fried Chicken at 681.
EIS p 5.
EIS p 12, par 2.10.
Primary judgment at [175].
Primary judgment at [176].
EIS p 7, par 1.3, development objectives.
Primary judgment at [202].
Appellants' written submissions, par 38.
Primary judgment at [498].
EIS, p 15, par 3.1.
EIS, p 5, par 1.2.
Primary judgment at [396].
Primary judgment at [399].
Primary judgment at [633]-[634].
EIS, p 15, par 3.1.
Notice of appeal, ground 16.
Primary judgment at [305].
Primary judgment at [336] and [357].
CA Tcpt, 7/05/19, p 111(40)-(46).
Appellants' written submissions, 12 April 2019, par 65.
But see [34] above.
Notice of appeal, ground 20.
Tcpt, 06/05/19, p 55(23).
Trial tcpt, 28/02/17, p 640(13).
Tcpt, 06/05/19, p 57(40).
Tcpt, p 58(35).
The Council, and indeed RailCorp, had over the years worked on the assumption that the original (unrevised) version of condition (vi) operated: points of claim, par 15.
Points of claim, par 16.
Deed of settlement, 20 July 2010, pars 4(c) and 5(b).
Amended points of claim, par 20 (particulars).
1997 Act, Sch 5, Pt 3, cl 4.
1997 Act, Sch 1, cl 19(2).
See, eg, Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; 93 ALJR 252 at [18] (Bell, Gageler and Keane JJ).
(2004) 61 NSWLR 707; [2004] NSWCA 422.
Pallas Newco at [6]; Trives v Hornsby Shire Council (2015) 89 NSWLR 268; [2015] NSWCA 158 at [17].
See, eg, ss 133(1), 134(1), 162(2) and 165(2).
Pallas Newco at [50].
Pallas Newco at [47].
See, for example, Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369, 388 (Dixon J).
(1999) 199 CLR 135; [2000] HCA 5.
Enfield City at [13] (Gleeson CJ, Gummow, Kirby and Hayne JJ).
(1999) 46 NSWLR 55; [1999] NSWCA 8 (Spigelman CJ, Mason P and Meagher JA).
(2003) 57 NSWLR 152; [2003] NSWCA 100 (Sheller, Giles and Ipp JJA).
Enfield at [50]-[51].
Tcpt, 07/05/19, p 88(20).
SECA Solution Pty Ltd, Martins Creek Quarry Traffic Impact Assessment (August 2016), p 32.
Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3.
Tcpt 07/05/19, p 105(25).
See primary judgment at [865]-[866].
Appellants' written submissions, par 141.
Primary judgment at [862]-[865], esp at [865]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2019

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