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[1997] NSWLEC 95
Land and Environment Court (NSW)
1997-07-23
Cowdroy AJ
Original judgment source is linked above.
This matter has had a long history. On 6 December 1979 a development application was lodged in respect of the land to develop and recover gold therefrom. On 15 January 1980 the applicant granted consent to the extraction of gold from the land.
0n 18 April 1990 the respondent lodged a development application for the transportation of gravel from land near Oallen Ford through Mulwaree Shire. On 15 July 1990 consent was granted for the transportation of gravel as sought in the development application subject to certain conditions. It is apparent from the evidence that such gravel was extracted from the land.
On or about 7 July 1994 it came to the applicant's attention that a development application was required in respect of the extractive activities of removing gravel from the land. Such information was conveyed to the respondent. Thereafter environmental experts were commissioned by the respondent to undertake preparation of a proposal and an environmental impact statement for the gravel extraction operations.
By June 1995, no development application was lodged in respect of the extraction of gravel from the land and accordingly the class 4 application was filed by the applicant.
Subsequent to the filing of the application the parties entered into a mediation which took place on 6 September 1995. The mediation resulted in an agreement which provided, inter alia, that the respondent would make a development application for the future development of the land not later 1 April 1996.
On 13 April 1996 the applicant was notified that the fresh application in respect of the gravel mining operations (as agreed at the conclusion of the mediation) would not be ready until November 1996. Accordingly, the Court proceedings were stood over, initially to 1 May 1996, and then 22 November 1996. Such foreshadowed application has still not been filed although the respondent has provided an undertaking, inter parties, that the same will be lodged with the applicant by 26 September 1997.
The applicant is concerned that such application has not materialised, and seeks restraining orders as set out in paragraphs 1 and 2 of its application.
The respondent acknowledges that there has been delay in filing the development application. It says that such delay arises substantially in consequence of a proposal to include an additional 260 acres in the proposed development application. Such proposal was abandoned in June 1997, and the task of formulating its application and environmental impact statement should now be more simple.
The respondent has also undertaken inter parties to lodge an application s 102 of the Act to vary certain conditions attached to the original consent concerning the haulage route for the carriage of the materials extracted from the mine. The respondent opposes the making of any order at this stage but requests that the application be adjourned until a date shortly after 26 September 1997 to enable it to finalise and lodge its development application and accompanying environmental impact statement. It refers to the provisions of s 124 of the Act to support its submission.
So far as the applicant is concerned, it submits that the point has been reached where orders should be made to guide the future conduct of the development application and to ensure that such application, which was, by agreement, to have been made more than twelve months ago, is in fact, made. It submits that orders should be made, but their effect postponed pending compliance with certain undertakings of the respondent.
The applicant is justified in this course. It is undesirable that this matter should continue without regulation by the Court. In making this observation, I am not critical of the conduct of the respondent, since there are matters which have obviously affected its future proposals. The fact remains that operations are continuing for which there is no approval, and sufficient time has elapsed to warrant the aid of this Court to supervise the relationship between the parties.
In these circumstances the Court should exercise its jurisdiction. No hardship will be caused to the respondent if the orders are made of the type proposed. Such orders will at least provide a certainty for the future of the matter which has not previously existed. The applicant seeks such certainty.
The parties have prepared draft short minutes of consent orders which are appropriate.
Accordingly I make orders 1, 2, 3 and 4 of the draft short minutes initialled by me, a copy of which is annexed to this judgment, and note the matters contained in paragraphs 5 and 6 of thereof.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 3 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE ACTING JUSTICE DENNIS A. COWDROY.