The consent, as amended in 1982 and 1986, provides for a certain means of rehabilitation and final landform after extraction is complete. The subject application seeks to amend the consent (as it relates to phase 1, area 2) to enable the applicant "to backfill our existing quarry with non-putrescible waste". This involves the amendment of a number of the conditions of the consent since waste disposal was not part of the rehabilitation of the quarry which is presently required to be effected by the use of on-site extracted material.

It is the submission of Mr. P. McEwen, on behalf of the Council, that the modification application must fail because it cannot be concluded that "the development to which the consent as modified relates is substantially the same development", (s.102(1)(a)). This is for two reasons - firstly, the final landform proposed is significantly different, and secondly, the use of the land for waste disposal is a different use from that the subject of the consent.

On behalf of the applicant, Mr. Davison makes submissions in the alternative. He contends that the development as modified will be substantially the same development. Alternatively, he submits that the Court ought treat the application as one for development consent under s.77 of the Environmental Planning and Assessment Act. In his submission the formal requirements of s.77 are facultative only and mandatory compliance is not required. That being so, he submits that the Council (and the Court on appeal) has before it the substance of an application to use the subject land, or rather a portion of it, for the purpose of waste disposal in the manner set forth in the Statement of Environmental Effects lodged with the application. It is open to the Court to determine the merits of the application as a development application rather than a modification application. The Council disputes this submission.

It is convenient to deal with this issue first. The subject application by Vacik Pty. Limited was specifically made as an amendment application - see the letter of application of 13 November 1989. The Statement of Environmental Effects and the covering letter from R.W. Corkery & Co., Consultants, was to the same effect. Council treated the application as a modification application under s.102 and dealt with it accordingly. The application was refused as a s.102 application and notice was given by the Council of the applicant's appeal rights under s.102(5).

It is unnecessary to canvass the question of whether the requirements of a development application set forth in s.77(3) are mandatory or directory because, for the purposes of the applicant's submission, I will assume without deciding, that they are directory only. In my opinion, bearing in mind the history of the application and the manner in which it was made and processed, it would be wholly inappropriate for the Court to treat it as a development application under s.77 for the use of the subject land for the purpose of waste disposal. Indeed, such a course would be fraught with danger and inconsistent with the scheme of Part IV of the Environmental Planning and Assessment Act. I note, and can appreciate, Council's concern with such a course. Council received an amendment application and processed it as such, not as a fresh development application.

Turning to the issue of s.102(1)(a). Is the proposed modified development substantially the same development as that in the development consent (as already amended)? In my opinion 'substantially' when used in the section means essentially or materially or having the same essence. The applicant for modification bears the onus of showing that the modified development is substantially the same, see Seaforth Services Pty. Ltd. v. Byron Shire Council (No. 2) ((1991) 72 LGRA 44) and C.S.R. v. Wingecarribee Shire Council (No. 2) (Unreported 17 December 1991).

In assessing whether the consent as modified will be substantially the same development one needs to compare the before and after situations. A significant difference is one of sequencing. The existing consent requires rehabilitation at the end of the excavation of material. By contrast the amendment proposes progressive rehabilitation over time and while the excavation of clay/shale continues. This has obvious implications for environmental impacts.

Plans are before the Court which provide a reasonable understanding of the final landform presently required by the consent as amended in 1986. There are also plans and descriptions of the current proposal which indicate the newly proposed final landform. The Statement of Environmental Effects lodged with the s.102 application acknowledges that the backfilling of the void with non-putrescible waste "would enable a landform comparable with pre-mining levels to be achieved rather than that would otherwise be achieved by placement of overburden", that is, as required by the existing consent. Figure 2.2 in the Statement (ref. para 2.2.4) indicates a final landform ranging from 42m AHD at the southern end sloping to approximately 39m at the northern end of the excavation. That landform is quite clearly different from what is presently required under the consent.

Mr. Malcolm Hughes, the Senior Environmental Planner with the Council, prepared cross-sections from east to west. This may be compared with the existing cross-section. One may quickly deduce that the final landform proposed is very different from the current one in terms of its contours. It is impossible to comprehend how the proposed landform could be said to be "substantially the same development".

In approaching the s.102 exercise one should not fall into the trap of saying that the development was for a certain use - extractive industry - and, as amended, it will be for precisely the same use and accordingly is substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. Otherwise, there may be little purpose in s.102.

Nonetheless, the use of the land consented to is relevant to the assessment to be made under s.102(1)(a). Here an additional and distinct use - that of the waste disposal - is to be included in the rehabilitation of the quarry. Waste disposal was never a use consented to by the Council, nor the proposed means of rehabilitation in the consent. The applicant does not submit that waste disposal is a separate use of the land which is incidental or ancillary to the dominant use. It concedes that a separate consent to the use of the land for waste disposal may be required. However, it is submitted that an amendment of the consent is still needed. Be that as it may, it is plain that the acknowledged additional use of waste disposal inherent in the proposed modification to the consent is such as makes the development different from that for which consent was granted. In my opinion it cannot be said to be "substantially the same development".

Accordingly, the applicant has failed to discharge its onus of proof and the application for amendment is refused. I have already formally dismissed the application. Although I reserved all issues of costs on 18 February my view is that each party ought bear its own costs. However, I will refrain from making any order in case the parties may wish to make any application. The exhibits will be returned.

I HEREBY CERTIFY THAT THE PRECEDING 5 PAGES ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE PAUL STEIN.