Normans Plant Hire Pty Limited & (2) Ors) v South Coast Concrete Crushing & Recycling Pty Limited & Anor

FIRST RESPONDENT: South Coast Concrete Crushing & Recycling Pty Limited ACN 095 243 584

SECOND RESPONDENT: Abib Pty Limited ACN 078 883 806

Injunctions and Declarations :- restraint of quarrying unless and until development consent granted - postponement of operation of injunction - no development application yet made - discretion - upholding integrated coordinated nature of planning law - designated development - third party rights - potential for environmental harm - potential for off-site impacts - contractual commitments can still be met if activities confined - disruption to mining operations - public interest in the orderly development and use of land - parties commercial competitors - no mere technical breach KEY ISSUES: Mines and Minerals: - mining lease - existing mine - immunity from planning controls under Mining Act 1992 - immunities not applying where development consent has lapsed

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 124

GPT Re Ltd v Wollongong City Council (No. 2) [2006] NSWLEC 401; CASES CITED: Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390; Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

APPLICANTS: J A Ayling SC SOLICITORS: Kearns & Garside LEGAL REPRESENTATIVES: RESPONDENTS: I J Hemmings (barrister) SOLICITORS: Access Business Lawyers

JUDGMENT:

• 8 - IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

NORMANS PLANT HIRE PTY LIMITED & (2) ORS v SOUTH COAST CONCRETE CRUSHING & RECYCLING PTY LIMITED & ANOR (NO. 2) [2006] NSWLEC 734

JUDGMENT 1 HIS HONOUR: The first respondent, South Coast Crushing & Recycling Pty Limited, occupies land at South Nowra in the City of Shoalhaven, being part of lot 464 in deposited plan 1058778. The second respondent, Abib Pty Limited, is the holder of two mineral leases from the Minister for Mineral Resources, being Mineral Lease 5087 (known in these proceedings as "ML1") and Mineral Lease 6322 (known in these proceedings as "ML2"). ML1 authorises the extraction of "brick clay and clay shale" and ML2 authorises the extraction of "brick clay" on a different part of the land. 2 In a judgment delivered on 5 July 2006 I found that the mining operations under ML1 are lawful. I also found that mining operations under ML2 are unlawful because a development consent which had been granted on 24 September 1971 for the carrying out of an extractive industry had lapsed prior to the commencement of the Mining Act 1973 and accordingly, there being no other extant consent on foot for such use, the carrying out of mining operations under ML2 is unlawful: Normans Plant Hire Pty Ltd v South Coast Concrete Crushing & Recycling Pty Ltd [2006] NSWLEC 390. 3 The question for determination is how the Court should now exercise its discretion under s 124 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). The applicants, Normans Plant Hire Pty Limited, Tomerong Quarry Pty Limited and South Coast Resources Pty Limited, trade competitors of the respondents, seek an injunction to restrain the respondents from carrying out any quarrying under ML2 unless and until a development consent has been granted for that purpose. The respondents ask the Court to postpone the operation of any injunction so as to enable a development application to be made and determined.

The relevant facts 4 ML1 was granted on or about 8 January 1948 and was subsequently renewed from time to time. ML2 was granted on or about 8 March 1972 and it has also been renewed from time to time, most recently on 2 March 2000. It will expire on 8 March 2020. On 20 December 2002 both leases were transferred to the second respondent. Both leases are adjoining and are apparently worked concurrently. 5 The second respondent acquired the two mining leases from Nowra Brickworks (NSW) Pty Ltd because of the strong shale reserves. As I understand it, the first respondent is an associated company of the second respondent and is the entity which is actually carrying out the mining on both mining leases. The number of the first respondent's employees fluctuates between 18 and 21. The majority of those employees are apprentices who are also undertaking formal study through the TAFE organisation. It also has a supplier list of mechanics, equipment hire, and general service organisations totalling 117 companies, and it has a contractor list of 227. Mining operations are conducted on ML1 and ML2 on a daily basis simultaneously, and there are units operating on both faces simultaneously. According to Mr J B Green, who is the sole director of both respondents, the operations of the respondents are vital for ongoing projects in the Nowra area and these projects, whether road construction or building projects, provide significant employment in the area. 6 The respondents have, since my previous judgment, engaged City Plan Services Pty Ltd to prepare a development application. Although my judgment was delivered on 5 July 2006, it was not until 8 September 2006 that City Plan Services was engaged. According to Mr A Smith, the planning director of City Plan Services, the recent departure of key planning staff has meant that little work has been done to prepare a development application. Indeed, Mr Smith has not yet inspected the site. And since the development is classified as a designated development, requiring the preparation of an environmental impact statement, it is self-evident that it will be some time before a development application will be ready to be made. 7 Mr Green states that mining operations can continue on ML1 and use can be made of current stockpiles on both ML1 and ML2 (which will run out in January 2007). However, if extraction of material were to be restricted to ML1, it will involve disruption to the overall operations because of the need to re-arrange the infrastructure, such as the need to relocate the stationary plant and the concrete stockpiles, to remove and re-establish the haul roads and remove areas that have been rehabilitated. All this would, of course, involve considerable additional expenditure. For example, the cost of moving plant and concrete stockpiles is said to be about $150,000. Significant work would be needed to move the current location of the tailing pond and wetland area, involving significant environmental degradation. 8 If, however, mining operations are allowed to continue on ML2, it will not be necessary for any of this to occur. The parties' submissions 9 Mr J A Ayling SC, appearing for the applicants, relies upon the public interest in the orderly development and use of land. Mr Ayling submits that unless this is done: (i) equal justice may not be secured; (ii) damage to the environment may be done without proper environmental controls; (iii) although there are conditions attached to the mining lease they relate to mining operations on the site and not to external environmental impacts such as traffic; (iv) the breach of the EP&A Act is not merely technical; and (v) Mr Green's evidence shows that it is possible for the respondents to meet their contractual obligations from stockpiled material and from working within ML1. Mr Ayling further submits that although the applicants are commercial competitors of the respondents, that fact is not sufficient to deny them the relief that they seek (referring to GPT Re Ltd v Wollongong City Council (No. 2) [2006] NSWLEC 401). 10 Mr I J Hemmings, appearing for the respondents, relies upon the following submissions: (i) the present operations are subject to environmental controls by the conditions of the mining lease and the conditions of the environmental protection licence issued by the Environment Protection Authority; (ii) as to the former, the conditions require the approval of a mining operations plan and annual environmental reports, and rehabilitation of the area on completion of operations; (iii) a mine safety management plan is also in place; (iv) the respondents purchased a business in 2003 that had been in operation for many years and they had no reason to believe that any part of the operations were unlawful; (v) since my judgment of 5 July 2006 the respondents have cooperated with the council and have accepted the need for a development application and they will abide by any decision on the development application; (vi) there is no evidence of environmental harm, nor harm to the general amenity of the surrounding area; and (vii) the respondents would suffer hardship, noted in par [7] above, if they were to be restrained from operating within ML2.

Conclusion 11 The respondents accept the fact that they require a development consent and that, unless they have such a consent then mining operations on ML2 must cease. The issue for determination is whether the respondents should be allowed to continue their present mining operations on ML2 pending the preparation, lodgement, consideration and final determination of the development application. 12 The difficulty with this is that the development for which consent is to be sought is classified as designated development. This in turn requires the preparation of an environmental impact statement which must accompany the development application. The respondents suggest that this can be done by 13 February 2007. Having regard, however, to the evidence of Mr Smith, I have a real doubt as to whether an environmental impact statement can be prepared by the suggested date. After lodging the development application, it must be exhibited with the environmental impact statement for 60 days to afford third parties the right to make submissions. After the determination of the development application there may be appeals to the Court - either by the applicant for consent or by third party objectors. The whole process is likely to take many months. 13 The principles which govern the exercise of the Court's discretion are settled. They are conveniently set out by Kirby P in his well known judgment in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335. I refer, in particular, to his Honour's reference to "a legislative purpose of upholding, in the normal case, the integrated and coordinated nature of planning law" (at 340):

Unless this is done, equal justice may not be secured. Private advantage may be won by a particular individual which others cannot enjoy. Damage may be done to the environment which it is the purpose of the orderly enforcement of environmental law to avoid. 14 In a similar vein are the following comments by Kirby P (also at 340): But the obvious intention of the Act is that, normally, those concerned in development and use of the environment will comply with the terms of the legislation. Otherwise, if unlawful exceptions and exemptions became a frequent occurrence, condoned by the exercise of the discretion under s 124, the equal and orderly enforcement of the Act could be undermined. A sense of inequity could then be felt by those who complied with the requirements of the Act or who failed to secure the favourable exercise of the discretion under s 124. 15 I accept the respondents' submission that the present mining operations are subject to controls by the conditions of the mining lease, the mining operations plan and the conditions of the environment protection licence. 16 Against these considerations, however, is the fact that this is designated development, which gives third parties the right to have an input into the development control process; the conditions under which the mine operates relate to the conduct of operations on the site and not off-site; and the potential for off-site impacts is plain - such as noise, blasting, dust generation and heavy vehicle traffic. Moreover, it is possible for the respondents to meet their contractual commitments by confining their activities to ML1, albeit at some inconvenience and expense. These considerations together with the lengthy time before there will be a final determination of the proposed development application, persuade me that the respondents must be restrained from operating within ML2. 17 The fact that the applicants are commercial competitors of the respondents is a relevant consideration: GPT Re Ltd v Wollongong City Council (No.2) [2006] NSWLEC 401. If this were a mere technical breach then I would have been inclined to give this fact more weight. This is not, however, a mere technical breach. The fact that there is potential for environmental harm, coupled with the fact that this is designated development, suggests that there is a wider public interest in securing observance of the law in this instance. 18 The proceedings were commenced on 6 October 2005 and have proceeded at a somewhat leisurely pace for this Court. Accordingly, the orders will be postponed for four weeks to enable an orderly withdrawal of operations from ML2. Orders 19 The formal declarations and orders of the Court are: (1) A declaration that the carrying out of development consisting of the conduct of a quarry for shale on land at South Nowra comprised within Mineral Lease 6322 ("ML2") requires development consent. (2) A declaration that no development consent has been given authorising the carrying out of that development on ML2. (3) An order that the first respondent be restrained from carrying out development consisting of the conduct of a quarry for shale on ML2 until and unless development consent has been given for the same. (4) An order that the second respondent be restrained from causing, suffering or permitting the carrying out of development consisting of the conduct of a quarry for shale on ML2 until and unless development consent has been given for the same. (5) Orders (3) and (4) above are postponed for a period of four (4) weeks from the date of these orders. (6) The question of costs is reserved. (7) The exhibits may be returned.

I hereby certify that the preceding 19 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

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.