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

Environmental Planning and Assessment Act 1979

1. Relevant sections of the Environmental Planning and Assessment Act 1979 (EPA Act) as in force between 1 July 2004 and 30 November 2004 provided: Part 4 Development assessment … Division 9 Miscellaneous … 100 Register of consents and certificates (1) A council must, in the prescribed form and manner (if any), keep a register of: (a) applications for development consent, and (b) the determination of applications for development consent (including the terms of development consents granted under this Part), and ... (2) The register is to be available for public inspection, without charge, at the office of the council during ordinary office hours.

Environmental Planning and Assessment Regulation 2000

1. Clause 266 of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) as in force between 3 September 2004 and 9 December 2004 provided: Part 16 Registers and other records … 266 Council to keep certain documents relating to development applications and consents (1) A council must keep the following documents for each development application made to it and each development consent resulting from a development application made to it: (a) a copy of the development application, (b) a copy of the relevant section 81 notice to the applicant, (c) a copy of any instrument by which some other development consent or existing use right has been modified or surrendered, (d) a copy of the decision of the Land and Environment Court, in the case of a development consent granted by the Court on appeal from the determination of the council, (e) a copy of the Minister's determination of the application, in the case of an application determined by the Minister for State significant development or an application determined by the Minister under section 80 (7) of the Act, (f) a copy of any recommendations made by relevant employees of the council with respect to the determination of the application, (g) if the development consent has been revoked, modified or surrendered, a copy of the instrument of revocation, modification or surrender, ... (2) A council must keep the documents referred to in subclause (1) that are furnished to it in accordance with this Regulation by any other consent authority or certifying authority in those cases where the council is not the consent authority or certifying authority.

Statement of agreed facts

1. The parties agreed the following statement of agreed facts (SOAF): 1. The Applicant is in the business of extracting, manufacturing and selling concrete and aggregate products in northern New South Wales and Queensland. 2. The Applicant is the owner and operator of the Tumbulgum Quarry (Quarry). It purchased the Quarry in 2011 as part of its acquisition of Hammercrete Concrete. 3. The Quarry is a rock quarry that produces road base and course and fine aggregate. 4. The Quarry is an amalgamated and expanded quarry that includes quarries previously known as: (a) Reedy Creek Quarry (b) Sandersons Quarry (c) Pollards Quarry 5. Each of these three quarries was registered in 1994 pursuant to the provisions of State Environmental Planning Policy No. 37 - Continued Mines and Extractive Industries (SEPP 37). 6. On 4 October 1995: (a) development consent 95/190 was issued for the continued operation of Reedy Creek Quarry; and (b) development consent 95/194 was issued for the continued operation of Sandersons Quarry. 7. On 25 November 1997, a further development consent was issued for the expansion of Sandersons Quarry. 8. On 24 May 2000 a further deferred commencement development consent was issued for the expansion of the Reedy Creek Quarry. The development application in relation to this consent was accompanied by an environmental impact statement prepared by GeoLink Group and dated April 1998 (Reedy Creek EIS). The deferred commencement conditions were satisfied and the development consent became operable on 20 December 2001. 9. As at 2001, Reedy Creek Quarry was subject to Environment Protection Licence No. 3430 (EPL), granted by the Second Respondent under the Protection of the Environment Operations Act 1997. On 30 October 2001, the Second Respondent issued a Notice of Variation of the EPL amending the "Fee Based Activity" of crushing, Grinding or Separating Works (32)" from up "0-30000 T" to "> 100000 - 500000 T". 10. In 2004, a development application was lodged for the expansion and amalgamation of Reedy Creek, Sandersons and Pollards quarries. The development application in relation to this consent was accompanied by a Statement of Environmental Effects prepared by Jim Glazebrook and Associates dated February 2004 (SEE). The First Respondent determined this application by granting a deferred commencement development consent, subject to conditions, as notified by a Notice of Determination dated 4 November 2004 (Consent). 11. The First Respondent wrote to the applicant on 7 March 2005 and advised that the deferred commencement conditions had been satisfied and that the Consent operated from that date. 12. The EPL initially applied to the Reedy Creek Quarry from at least 2001, but by way of Notice of Variation dated 11 July 2005, the EPL was then made to apply, and has since applied, to the premises comprising the amalgamated Tumbulgum Quarry referred to in [4] above. The EPL has since remained in force throughout the period to date, permitting the carrying out of land based extractive activities. Since 11 July 2005, the EPL has been the subject of variation by way of Notices of Variation issued on 3 August 2011, 20 November 2014, 7 July 2015, 14 June 2016, 1 August 2016, 19 January 2017 and 21 August 2019. 13. On 20 November 2014, the Applicant lodged an application (DA04/0162 02) to modify the Consent by amending conditions 1, 26 and 27 of the Consent (Modification Application). The Modification Application was accompanied by a Statement of Environmental Effects prepared by Groundwork Plus and dated November 2014. 14. The First Respondent approved the Modification Application as notified by a Notice of Determination dated 11 August 2016. 15. On 1 December 2016, the Applicant lodged an application (DA04/0162.03) to modify the Consent (Second Modification Application). 16. The difference between the volume of resource material as extracted in situ and the volume of that same material in its "bulked state" after being extracted, processed and stockpiled is significant. If one cubic metre of the resource material present in situ is extracted (taken out of the ground), then, once that same cubic metre of material has been processed and stockpiled, it will have expanded in volume in its resultant "bulked state" so as to be materially in excess of a cubic metre. 17. According the [sic] NATA accredited laboratory testing of the resource material at the Quarry, the volume to weight conversion factor applied to the resource material as measured in situ at the time of extraction from the Quarry is 2.75 tonnes in weight for each 1 m3 of in situ material extracted. As a result, 200,000 m3 of in situ material weighs 550,000 tonnes and 195,000 m3 of in situ material weighs 536,250 tonnes. 18. By letter to the Applicant dated 4 April 2019, the Council conveyed to the Applicant its position that the volumetric limit imposed by Condition 2 pertains to the volume-,of the material in Its "bulked state", rather than in its in-situ state. 19. On 21 August 2019, the Second Respondent made a decision, as set out in the Notice of Variation No.1584269 (2019 EPL Variation Notice), to vary the EPL by amending condition A1.2 to read: "Notwithstanding the upper limit of the Scheduled Activity Scale being 500,000 tonnes (1) in Licence Condition A1.1 above, the following amounts being the quantity approved by the development consent Notice No. DA04/D162 granted under the Environmental Planning and Assessment Act 1979 for the premises specified In A2, must not exceed: • a maximum of 340,000 T in any one Annual Return period; and, • a maximum of 331,500 T average in any three Annual Return periods." 20. The new, reduced extraction limits imposed by way of the 2019 EPL Variation Notice are based on the premise that the volume to weight conversion factor applied to the resource material in its bulked stated after it has extracted, processed and stockpiled is approximately 1.7 tonnes in weight for each 1 m3 of the material in its bulked state. As a result, 200,000 m3 of material in its bulked state weighs about 340,000 tonnes and 195,000 m3 of in situ material weighs about 331,500 tonnes.

Conditions of 2004 consent

1. The conditions of DA 04/0162 as amended on 11 August 2016 provide: 1A. The development shall be completed in accordance with the following: a. Statement of Environmental Effects prepared by Jim Glazebrook and Associates Pty Limited (JCA) dated February 2004, b. Further information as per the JGA letter of 30 July 2004 as later amended by their letter of 8 October 2004, c. The approved "Rehabilitation and Environmental Management Plan" approved from time to time by Council's Director of Planning and Regulation. Except where varied by the approved S96 DA 04/0162.02 application material specifically incorporating Dwg. No. 1374.044 Rev. 6 Extraction Boundary Alignment dated 02 May 2016 prepared by Groundwork Plus. AND Except where varied by the following conditions. … 2. The maximum annual rate of extraction in any 12 month period is 200,000m3. The maximum average rate of extraction is 195,000m3 over any 3 year period. … 38. The operators of the quarry are to carry out a review of the activities of the quarry, using the Rehabilitation and Environmental Management Plan, on an annual basis. The results of the reviews, including an assessment of the effectiveness of the dust and noise management, and the sediment erosion control system, are to be submitted to Council's Environment and Health Services for approval.
2. Condition 2 has been the same since development consent was granted in 2004. The 2004 consent became operative in 2005 (SOAF par 11).

Issues for determination

1. The following issues were identified: 1. The correct interpretation of Condition 2 of development consent No. DA 04/162 granted under the Environmental Planning and Assessment Act 1979 by the First Respondent by way of Notice of Determination dated 3 November 2004, as modified by the First Respondent by way of notice dated 11 August 2016 (Consent). 2. Whether the annual and three-year average extraction limits in condition 2 pertain to volume of the material in "its bulked state", namely the volume of the material after it has been extracted, processed and stockpiled, as distinct from its "in situ state" namely the volume of the material in the ground at the time of extraction. 3. Whether the Second Respondent made its decision, as set out in the Notice of Variation No. 1584269, to vary the Environment Protection Licence No. 3430 by replacing Condition A1.2 by adopting the position of the Council's interpretation of the Consent without independently assessing it.
2. As is clear from the SOAF pars 16 and 17 if the Council's construction and the EPA's variation to the EPL stand, the amount of material that the Applicant can extract from the quarry is substantially reduced.

Evidence

1. The Applicant tendered an evidence book (Ex A) and court book (Ex B).

1998 consent for Reedy Creek quarry

1. The environmental impact statement (EIS) prepared for a development application concerning the Reedy Creek quarry dated April 1998 (1998 EIS) provides: 3.3 Stage 1 Extraction works … Production Surface Area Total Material * Time Frame 3.0 ha 1,564,675 m3 8 years

*Adjusted for bulking effects. … 3.4 Stage 2 Extraction works … Production Surface Area Total Material * Time Frame 1.7 ha 973,661 m3 5 years

*Adjusted for bulking effects. … 3.5 Stage 3 Extraction works … Production Surface Area Total Material * Time Frame 1.8 ha 1,261,664 m3 7 years

*Adjusted for bulking effects. …

1. The 1998 consent for the expansion of the Reedy Creek quarry provides at condition 2: The maximum annual rate of extraction in any 12 month period is 200,000m3. The maximum average rate of extraction is 195,000m3 over any 3 year period.
2. The rehabilitation and environmental management plan (REMP) prepared for the expansion of the Reedy Creek quarry dated November 2001 (2001 REMP) provides: 1.0 INTRODUCTION … 1.2 A development application for the proposal, accompanied by a revised Environmental Impact Statement (EIS) prepared by the GeoLINK Group (April 1998) … was lodged with Tweed Shire Council in 1998. …This REMP is prepared in accordance with the requirements of the consent and the recommendations of the EIS. … … 5.0 OPERATIONAL PARAMETERS The principal operational parameters of the quarry operation are defined in the EIS and TSC's development consent. These are: • Extraction: Maximum annual rate in any 12 month period is 200,000 m3. The maximum average rate is 195,000 m3 over any 3 year period. …

2004 consent

1. The statement of environmental effects (SEE) for the expansion and amalgamation of Reedy Creek, Sandersons and Pollards quarries dated February 2004 (2004 SEE) provides: 3.0 PROPOSAL … The proposed amended and amalgamated quarry would operate generally within the parameters contained in the approved Reedy Creek Rehabilitation and Environmental Management Plan (REMP). … … … Extraction from the expanded quarry would be no more than the rate approved for the Reedy Creek Quarry, i.e. a maximum of 200,000m3 per annum.
2. Appendices to the 2004 SEE include the 1998 consent and 2001 REMP.
3. The REMP prepared for the expansion and amalgamation of Reedy Creek, Sanderson and Pollards quarries dated December 2004 (2004 REMP) provides: 5.0 OPERATIONAL PARAMETERS The principal operational parameters of the quarry operation are defined in the SEE and TSC's development consent. … …
4. The conditions of the 2004 consent relevant to the arguments are extracted above in [6].

2014 modification of 2004 consent

1. The SEE for the s 96 amendment to the 2004 consent (boundary modification) dated November 2014 (consent granted 11 August 2016) provided: 1.0 INTRODUCTION … 1.2 Background … The approved maximum annual rate of extraction in any 12 month period is 200,000m3 and the maximum average rate of extraction is 195,000m3 over any three (3) year period. It is estimated that the approved quarry design will yield approximately 5,100,000m3 (in-situ) in total during the life of the quarry. … 3.0 PROPOSED MODIFICATION ... As discussed in Section 1.2 it is estimated that approved quarry design yields approximately 5,100,000m3 of in-situ resource. The extraction boundary realignment shown on Drawing No 1374.044 would increase the available in-situ resource to approximately 6,500,000m3 (an increase of 1,400,000m3). If the approved maximum annual rate of extraction in any 12 month period is 200,000m3 and the maximum average rate of extraction is 195,000m3 over any three (3) year period it is estimated that the proposed extraction boundary realignment could extend the life of the quarry by a further 7 years subject to market demand.

Other documents

1. An email dated 19 January 2017 from Mr Geff Cramb operations officer - environment management unit of the EPA to Ms Denise Galle team leader development assessment, planning and regulation division of the Council, stated that the limit in condition 2 of the 2004 consent relates to material in its in situ state.
2. A letter from Groundwork Plus on behalf of the Applicant to Ms Galle dated 22 March 2017 provides: Regarding the tonnage conversion rates, as previously discussed with Council, the consent currently limits the annual extraction rate to a maximum of 200,000m3. This volume measurement relates to the amount of resource measured in-situ, for which the conversion rate from in-situ cubic metres to tonnes is confirmed by testing previously submitted to the Environment Protection Authority (EPA) and Council to be 2.75t/m3. Importantly, the extraction rate is the physical removal of material from the resource prior to processing and sale of processed product. After the resource is extracted, the conversion rate for the in-situ resource is different to the conversion rate that would be applicable to the material after being extracted, processed, stockpiled and loaded for transport, which then being 'loose' would have a lower density closer to the amount referred to by the submission. This is the reason why development consents and Environment Protection Licences regulate the amount of material extracted in-situ rather than the amount of material hauled. …
3. An extract of the agenda for the Council Planning Committee Meeting dated 7 September 2017 states that the Applicant, the Council and the EPA agreed that the volume measurement in condition 2 of the 2004 consent relates to the amount of resource material measured in situ.

EPL No 3430

1. Relevant notices of variation of the EPL include: 1. 30 October 2001 variation that applied to the Reedy Creek quarry amending the maximum permissible scale of crushing, grinding or separating works in condition A1.2 from "0-30000 T" to "10000 - 500000 T processed"; 2. 7 July 2015 variation imposing a new condition A1.2 as follows: Notwithstanding the amount approximately equivalent to the extraction limit of 550,000 tonnes being the quantity approved by the development consent Notice No. DA04/0162 granted under the Environmental Planning and Assessment Act 1979 for the premises specified in A2, the scale of the land-based extractive activity authorised under this licence must not exceed 500,000 tonnes per annum, being that stated in condition A1.1 ["> 100000 - 500000 T extracted, processed or stored"]. 1. 14 June 2016 variation amending condition A1.2 as follows: Notwithstanding the scale of the land-based activity authorised under this licence, being that stated in condition A.1 1 ["> 500000 - 2000000 T annual capacity to extract, process or store"], the amount approximately equivalent to the extraction limit of 550,000 tonnes being the quantity approved by the development consent Notice No. DA04/0162 granted under the Environmental Planning and Assessment Act 1979 for the premises specified in A2, must not be exceeded. 1. 1 August 2016 variation (and to a similar effect the 19 January 2017 variation) amending condition A1.2 as follows: Notwithstanding the scale of the land-based activity authorised under this licence, being that stated in condition A.1 1 ["> 100000 - 500000 T annual capacity to extract, process or store"], the amount approximately equivalent to the extraction limit of 550,000 tonnes being the quantity approved by the development consent Notice No. DA04/0162 granted under the Environmental Planning and Assessment Act 1979 for the premises specified in A2, must not be exceeded. 1. 21 August 2019 variation amending condition A1.2 to reflect the Council's interpretation of the limitation on extraction in condition 2 of the 2004 consent as applying to material in its bulked state (see summons pars 16-17).
2. Documents produced by the EPA in response to a notice to produce filed by the Applicant dated 30 September 2019 requesting all documents recording the EPA's consideration of its decision to issue the notice of variation of the EPL dated 21 August 2019 include: 1. four emails between Mr Cramb of the EPA and Mr Burnett employee of the Applicant dated 19 August 2019; 2. an email dated 4 April 2019 from Ms Galle to the Applicant, employees of the Council and the EPA stating that condition 2 "is now interpreted as bulk material"; 3. a letter from the Council to the Applicant dated 4 April 2019 stating its interpretation of the rates in condition 2 of the 2004 consent as applying to material in its bulked state; and 4. two emails between Ms Galle and Mr Cramb dated 19 and 20 August 2019.
3. The affidavit of Mr Harold Clark general manager of the Applicant dated 12 September 2019 states that the EPA issued the EPL variation notice dated 21 August 2019 without providing the Applicant the opportunity to be consulted.

Prayers 1 and 2

1. The issues concerning prayers 1 and 2 can be considered together as both declarations relate to condition 2 of the 2004 consent.

Applicant's submissions

1. There is no ambiguity about the meaning of condition 2. It imposes a volumetric limit on the rate of extraction (an annual limit and a three-year average limit). These are limits that restrict the rate at which material can be extracted from the ground. That is the only thing a limit on "the rate of extraction" sensibly can be.
2. The construction of the 2004 consent now advanced by the Council is to the effect that condition 2 places a limit not on the rate at which material may be extracted from the ground but rather on the rate at which the material, in its bulked form, can be loaded or transported from the quarry after it has been extracted, processed and stockpiled. The fundamental error in construing condition 2 in this way is that it would impermissibly convert a limit on "the rate of extraction" into something else.
3. The presence of the material in stockpiles in its "bulked state" after it has been processed necessarily depends on that same material having been extracted from the ground at an earlier point in time. If the limit imposed by condition 2 is said to pertain to the material in its bulked state, after processing and stockpiling, then the Applicant must still abide by some other hidden, unstated volumetric limit on the rate at which the material can be extracted from the ground. This must necessarily be of a materially lesser quantum than the stated 200,000 m3 limit.
4. Moreover the construction of condition 2 advanced by the Council may be seen to promote the distinctly odd (and unfair) result that, despite the 2004 consent expressly stating that the maximum annual rate of extraction is 200,000 m3, the Applicant would, in reality, be subject to a limit on the annual rate of extraction of a materially lesser quantum.
5. What this exposes is that on the Council's interpretation, condition 2 would not actually impose a limit on the annual rate of extraction at all. Rather it would impose a derivative limit on the rate at which material, having been extracted, processed and stockpiled can be trucked off the site in its resultant bulked form.
6. The language of condition 2 simply does not permit the construction advanced by the Council and construed objectively this cannot be what was intended. The principles applying to the construction of development consents are well established and considered by the Court of Appeal in Allandale Blue Metal Pty Ltd v Roads and Maritime Services (2013) 195 LGERA 182; [2013] NSWCA 103 (Allandale), which was approved but for one aspect most recently in Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 (Dungog).
7. The same arguments apply equally to the three-year average limit imposed by condition 2. The declarations sought in prayers 1 and 2 ought be made.

Council's submissions

1. By reference to documents incorporated expressly or by implication into the 2004 consent, the Council submitted that condition 2 of the 2004 consent refers to extraction as measured "bulked", not "in situ".
2. The ambiguity or uncertainty as to whether the condition refers to extraction as measured in situ or bulked is necessarily resolved by having regard not only to the 2004 consent as modified, but to extrinsic evidence to which reference can legitimately be made. Having regard to Allandale; Winn v Director General of National Parks and Wildlife (2001) 130 LGERA 508; [2001] NSWCA 17 (Winn); Stebbins v Lismore City Council (1988) 64 LGRA 132; Oakden Shopping Centre Pty Ltd v City of Port Adelaide Enfield (2004) 137 LGERA 189; [2004] SASC 373 and Hubertus Schuetzenverein Liverpool Rifle Club Limited v Commonwealth (1994) 85 LGERA 37 (Hubertus), and most recently Dungog which varied the principles in Allandale in an important respect, it is legitimate for the Court to have regard to the 2004 SEE referred to in condition 1A of the 2004 consent, along with the 2001 REMP which is attached to the 2004 SEE at appendix C, the 1998 development consent which is attached at appendix B with condition 2 in identical terms to the condition in dispute, and relevantly, the 1998 EIS, a document relied upon by both the 2004 SEE and the 2001 REMP, and which specifically aids in interpreting the condition. The 2004 SEE and the 2001 REMP are documents expressly referred to in the 2004 consent and so expressly incorporated into it.
3. The 2004 SEE outlines the proposed extraction rates in the same terms imposed under condition 2 of the 2004 consent, but does not provide any information on whether the rates relate to in situ or bulked material.
4. However, in relation to extraction and quarry operations, the 2004 SEE at section 3.0 "Proposal" states (at [14] above): 1. the quarry would "operate generally within the parameters contained in the approved Reedy Creek Rehabilitation and Environmental Management Plan (REMP)" being the 2001 REMP and which is appendix C of the 2004 SEE; and 2. "[e]xtraction from the expanded quarry would be no more than the rate approved for the Reedy Creek Quarry, i.e. a maximum of 200,000m3 per annum".
5. As with the 2004 SEE, the 2001 REMP does not expressly state whether the extraction rates are taken as in situ or bulked. However, it makes multiple references to it having been prepared in accordance with or on the conclusions and recommendations of the 1998 EIS and the conditions, being the EIS approved under the 1998 consent and the conditions imposed under that consent.
6. Relevantly at section 5.0 "Operational Parameters" (at [13] above), the 2001 REMP goes further to state that: The principal operational parameters of the quarry operation are defined in the EIS and TSC's [Council's] development consent.
7. The 2001 REMP then repeats the extraction maximum annual rate and maximum average rate over any three-year period.
8. As it is not possible to gain a full appreciation of the operational parameters of the quarry without reference to the 1998 EIS, the 1998 EIS is necessarily incorporated into the 2004 consent. In its outline of the development and by reference to the staging at section 3 of the 1998 EIS, the EIS provides the total amount of material to be extracted and the timeframe for extraction under each of stages 1, 2 and 3. For each stage of the quarry, the extracted material totals (see tables under "Production" at [11] above) are noted to be "Adjusted for bulking effects".
9. When the total material amounts per stage are divided by the specified timeframe for extraction, the bulked yearly rate is between approximately 180,237 m3 and 195,584 m3, generally consistent with the rates that were eventually imposed under the 2004 consent. Most relevantly section 4.9.3 (see [11] above) demonstrates how the 200,000 m3 maximum annual limit was calculated. It was a forecast of the total number of truck departures from the quarry. The 1998 EIS divides the annual maximum proposed future extraction rate of 200,000 m3 by the average capacity of the trucks to be used. This maximum of 200,000 m3 assumes the extracted material will be in its bulked state, as it sits in the truck. These are clear indications that the 1998 EIS set extraction rates based on bulked material.
10. While the staging of the EIS was expressly excluded by the 2004 SEE at section 3.0 "Proposal", the method of establishing the extraction rate was not excluded.
11. To complete the flow of documents from the 1998 EIS to the 2004 consent, the 2004 REMP (see at [16] above) submitted to render the 2004 consent operable, at section 5.0 nominates the 2004 SEE as the basis for the "operational parameters" of the amalgamated quarries.
12. The modified consent does not modify condition 2. Condition 2 does not vary condition 1A. Condition 1A necessarily incorporates the 1998 EIS and does not contradict condition 2 but aids in its interpretation. Condition 2 refers to extraction as measured "bulked" not "in situ". The declarations sought by the Applicant should not be made.

Condition 2 of the 2004 consent not ambiguous

1. The parties agreed that the relevant principles that apply in construing a development consent are set out in the decision of the Court of Appeal in Allandale (Meagher JA at [42]-[48] and Ward JA at [154]-[163]), with Winn cited at [155]. Spigelman CJ at [4] stated: 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.
2. Meagher JA also held at [42], [43], [45] and [46]: 42 The relevant principles are, in some respects, more easily stated than applied. The task is to construe the document constituting the consent mindful of the fact that the approval is a unilateral act of the consent authority which has an enduring function. The consent is not the result of a bargaining process between two or more parties, and is not personal to the applicant but enures for the benefit of subsequent owners and occupiers. Its meaning must be determined objectively, having regard to these matters which do not focus on the circumstances in which the consent was given by reference to what was known both to the applicant and the consent authority. To that extent, the principles of construction appropriate to contracts, which provide that in the case of ambiguity or uncertainty reference may be made to surrounding circumstances known to the relevant parties, do not apply: compare Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337 at 352; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40], [41]. 43 The extrinsic evidence to which reference legitimately may be made when construing a public document, such as a development consent, is more limited. Reference may be made to documents other than the consent itself if those documents, or parts of them, are incorporated into the consent expressly or by necessary implication: see generally, Ryde Municipal Council v Royal Ryde Homes [1970] 1 NSWR 277 at 279; (1970) 19 LGRA 321 at 324; Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 433-434; and the decisions of this Court in Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407-408; House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; 106 LGERA 440 at [23], Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [2], [4], [199]; and Alcoa Australia Rolled Products Pty Ltd v Weston Aluminium Pty Ltd (2006) 148 LGERA 439 at [1], [3], [35]-[36]. See also Adelaide Corporation Pty Ltd v City of Charles Sturt (2008) 162 LGERA 96 at [33], [49], [50]. … 45 A document which is attached to the consent or otherwise referred to in it for the purpose of identifying or describing something dealt with in the consent will, for that reason, be expressly incorporated in it: Szabo at 434; Sydney Serviced Apartments Pty Ltd at 408. However, the mere reference to a document, such as a development application, is usually not sufficient to constitute express incorporation for this purpose. In each case, whether the reference is sufficient will depend upon the reason for the reference as appears from the consent itself: Sydney Serviced Apartments Pty Ltd at 408; Alcoa at [39], [40]. 46 What is sufficient to constitute incorporation, by necessary implication, for the purpose of these principles is less clear. If the consent in terms does no more than approve the application, it will be necessary to go to the application at least to identify the subject matter of the consent: Royal Ryde Homes at 278-279; at 323-324; Szabo at 434; Winn at [5], [199]. A consent in those terms would not necessarily have the effect of incorporating all of the matters dealt with in the application. For example, general matters of fact or assertions of intention furnished or made for the purpose of informing the consent authority of the nature of the development, are not likely to be incorporated: Royal Ryde Homes at 278-279; at 323-324. In Winn, Stein J (with whom Spigelman CJ and Powell JA agreed on this point) rejected an argument that reference could be made to a letter to the consent authority which had accompanied the development application, on the basis that it was not necessary to have regard to the letter in order to resolve any uncertainty as to what the Council had approved. Specifically, that question was whether consents which authorised a mineral sands mine also authorised re-mining or deep mining. It was held that the consents and their conditions sufficiently delineated what the Council had approved: Winn at [5], [108], [199]-[202]. The argument for incorporation of the development application was not rejected on the basis that it was not permissible to refer to it even if the consent and conditions did not sufficiently delineate what had been approved.
3. Ward JA observed at [160]: In Hubertus, Wilcox J (determining in advance of the hearing, by consent, a separate question as to the construction of a development approval and noting that, in construing a development consent, it was legitimate to look at the plans which accompanied the development application only where the development consent expressly or inferentially incorporated the terms of the application and only where it is necessary to look at the plans for the purpose of interpreting the consent) held that it was not legitimate to look at the documents that accompanied the application (or the application itself) to contradict, whether by way of extension or contraction, the scope of a consent stated in clear terms.
4. The Applicant also referred to Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498; [2000] NSWCA 44 at [37] and [41]: 37 …The search is not for what the Council actually intended or what, if it had been interrogated about various possibilities, it would have said it intended. As an instrument having the characteristics referred to by Else-Mitchell J and Stephen J in the passages cited at par 23, it must speak according to its written terms, construed in context but having regard to its enduring function. … 41 The enduring nature of a development consent encourages a fair but liberal reading of the rights it confers upon a land owner who may spend considerable money in acting upon it and who is likely to wish to sell the land sooner or later.
5. In Dungog Basten JA approved the principles in Allandale at [77] but for Weston Aluminium Pty Ltd v Environment Protection Authority (2007) 82 ALJR 74; [2007] HCA 50, which has no relevance to this matter. Basten JA also considered that the scope of a consent was able to be informed by the development application at [57]. He considered the requirement under the EPA Act for certain documents to be kept on a public register of consents under s 100 (now s 4.58) of the EPA Act suggested such documents (including the development application) could be considered in construing a development application at [51]-[52]. The discussion in Dungog at [57]-[80] was framed by whether a development application including plans and an EIS prepared in support of the application could be referred to in construing a development consent in issue.
6. I agree with and adopt the Applicant's submission that there is no ambiguity in condition 2. The ordinary meaning of the word "extraction" means taking material out of the ground, which the parties perhaps unhelpfully describe as in situ throughout the case. That that is the ordinary meaning was appropriately conceded by the Council's counsel in oral address. If there is no ambiguity there is no reason to look for any other material to apply directly or inferentially to the construction of the condition. There is no need to clarify the meaning of condition 2. I also note that condition 1A which the Council relied on in support of its argument that other documents should be referred to to inform condition 2 expressly states that it is subject to the other conditions, "…[e]xcept where varied by the following conditions". Condition 1A is subject to condition 2. The Council's submission to the contrary is not correct.
7. It is difficult to see how the principles and authorities considered and applied in Allandale and Dungog can arise in the absence of any ambiguity. Of all the cases considered in Allandale, the most relevant appears to be Hubertus, summarised at [160] in Allandale and set out above at [47]. Here the Council's construction of condition 2 seeks to limit what is otherwise a clear entitlement to extract material up to a specified volume. Both Allandale and Dungog concerned uncertainty in a development consent over the area in which activity was permitted, raising the issue of whether plans attached to a development application could be considered.
8. Basten JA concluded at [59] in Dungog that it is generally permissible to have regard to the development application for the purpose of determining the scope and nature of a proposed development for which consent was sought, if in issue (emphasis added). Dungog is not authority for the proposition that regardless of whether there is ambiguity such documents may be referred to in construing a condition of consent if there is no need to do so. The Council has not alleged that condition 2 is at odds with what was stated in the 2004 SEE. The 2004 SEE refers to the extraction rate as identified in condition 2.
9. The Council's case is that the concept of bulked material applying to condition 2 becomes relevant to the construction of the 2004 consent if the 1998 EIS for the 1998 DA for the Reedy Creek quarry can be considered, and it should be. Because condition 1A of the 2004 consent refers to the 2004 SEE which includes in the appendices the 1998 consent for the Reedy Creek quarry and the 1998 EIS informs understanding of that consent, the 1998 EIS is relevant to understanding the 2004 consent. Even if it was appropriate to have regard to additional documents beyond the development consent condition in issue, the Council's reliance on the 1998 EIS is not supported by authority. As the Council submitted, Basten JA in Dungog identified that it was appropriate to have regard to documents required to be kept on the public register by the EPA Act namely the development application. As the Applicant submitted, that does not assist the Council in this case. Firstly, the 2004 DA did not require an EIS and no such document was required to be prepared to support that DA. The discussion in Dungog concerning such documents has no relevance in these circumstances.
10. Secondly, it cannot be relevant to consider the 1998 EIS as it was prepared for a different DA to the 2004 DA. Dungog does not support such an approach. It considered an EIS which was prepared for the development consent the subject of the judgment.
11. Thirdly, condition 1A refers to a SEE prepared by Jim Glazebrook and Associates Pty Ltd dated February 2004 and the approved REMP (2004 REMP). The 2004 SEE contained as appendices the 1998 consent for the Reedy Creek quarry. The EIS for the 1998 consent was not an appendix or otherwise part of the 2004 SEE. Relying on the 1998 EIS in these circumstances is drawing far too long a bow, and no authority supports such an approach.
12. While I have summarised the Council's evidence in relation to parts of the 1998 EIS, 1998 REMP and 1998 consent at [11]-[13] above, that material is irrelevant.
13. As the Applicant submitted, the caution in having regard to documents other than a consent identified throughout many of the authorities summarised helpfully in Allandale extracted above, as refined in Dungog to include reference to documents on the public register as specified in the EPA Regulation where justified, is exemplified in this case. A later beneficiary of the 2004 consent, the Applicant cannot be expected to trawl through documents not expressly (or impliedly) referred to in a consent to understand what its rights are.
14. The letter from the Council to the Applicant dated 4 April 2019 advised that the Council would be enforcing its view of condition 2 of the 2004 consent effective immediately. The lengthy correspondence between the Council and the Applicant since 2017 is summarised in pars 4 and 5 of the summons set out above. The summons at par 7 identifies the impact of the Council's construction of condition 2 of substantially reducing the amount of material able to be recovered by the Applicant from the quarry. There clearly is utility in making the declarations sought in prayers 1 and 2 in these circumstances as clarification of the Applicant's legal rights are necessary in view of the Council's actions. I will make the declarations in prayers 1 and 2 of the summons.

Prayer 3 - August 2019 variation of EPL invalid

1. The Applicant referred to numerous variations of the EPL in the evidence book, which are extracted at [8] above. The numerous variations to condition A1.2 of the EPL over time until August 2019 were premised on the volume of material being extracted, not the extracted material once processed and transported, meaning bulked. The Applicant explained how the tonnage limit referred to in the EPL, identified in pars 15 and 16 of the summons, reflected the cubic metre extraction limit in the 2004 consent.
2. The Applicant issued a notice to produce to the EPA for all documents recording the EPA's consideration of its decision to issue the notice of variation of the EPL in August 2019 and the few documents produced were included in the evidence book, summarised at [23] above.
3. The summons sets out in detail at pars 12-21 the lead-up to the EPL variation made by the EPA in August 2019. The summons identifies two bases on which the Applicant seeks review of the EPL variation in April 2019. Firstly, it was based on a legal error (par 20) and secondly the EPA constructively failed to exercise its jurisdiction under s 45 of the Protection of the Environment Operations Act 1997 (POEO Act) (par 21). The Applicant submitted that the EPA varied the EPL solely to reflect the Council's erroneous construction of condition 2 of the 2004 consent. So much is clear expressly from the recitals to the August 2019 variation set out par 17 of the summons. The few documents produced by the EPA pursuant to the notice to produce, being largely emails between EPA officers and the Council, confirm what is stated in the recital.
4. The EPA exhibited legal error in its approach to the August 2019 variation based solely on the Council's erroneous purported construction of condition 2 of the 2004 consent, for the reasons I have given above in relation to prayers 1 and 2. It follows that the EPL variation in August 2019 is invalid and an order should be made that it be set aside. It is unnecessary to consider the second basis of whether the EPA constructively failed to exercise jurisdiction under s 45 of the POEO Act.
5. There is utility in making the order setting aside the August 2019 variation of the EPL under challenge as its imposition of the reduced limit on the volume of material able to be dealt with has a direct adverse impact on the Applicant's current business.

Costs

1. Costs awards are compensatory not punitive: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 and 567 (Mason CJ and McHugh J respectively). The costs discretion under s 98 of the Civil Procedure Act 2005 are wide. Costs in Class 4 proceedings are generally awarded in the successful party's favour in the absence of disentitling conduct, as provided in r 42.1 of the Uniform Civil Procedure Rules 2005. The Applicant has been entirely successful and should receive its costs. The question arises of whether one or both respondents should be liable for costs. Costs will be reserved to enable discussion by the respondents on that issue.

Declarations and orders

1. The Court makes the following declarations and orders: 1. A declaration that development consent number DA 04/162 granted by Tweed Shire Council by way of notice of determination dated 4 November 2004 as modified confers a right on the Applicant to extract from the land to which the said development consent applies, in any 12 month period, a volume of resource material of up to 200,000 m3 as measured in situ at the time of extraction. 2. A declaration that development consent number DA 04/162 granted by Tweed Shire Council by way of notice of determination dated 4 November 2004 as modified confers a right on the Applicant to extract from the land to which the said development consent applies, over any three year period, an average volume of resource material of up to 195,000 m3 as measured in situ at the time of extraction. 3. An order setting aside the determination of the Environment Protection Authority set out in the notice of variation Number 1584269 dated 21 August 2019 purporting to vary condition A1.2 of environment protection licence number 3430 so as to limit extraction in any one annual return period to a maximum weight of 340,000 tonnes and, in any three annual return periods, to a maximum annual average weight of 331,500 tonnes. 4. Costs are reserved. 5. The exhibits are returned.

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: 18 November 2019