Land and Environment Court New South Wales Medium Neutral Citation: Roche v Mid-Coast Council; Agiliti Pty Ltd v Mid-Coast Council [2021] NSWLEC 1292 Hearing dates: Conciliation conference on 24 May 2021 Date of orders: 27 May 2021 Decision date: 27 May 2021 Jurisdiction: Class 1 Before: Dixon SC Decision: Proceedings 2020/184455 See orders at [32] below. Proceedings 2020/184460 See orders at [33] below. Catchwords: DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979, ss 4.70, 8.18, Sch 5 Greater Taree Local Environmental Plan 2010 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Coastal Management) 2018 State Environmental Planning Policy No 37—Continued Mines and Extractive Industries Category: Principal judgment Parties: Proceedings 2020/184455 Mark Andrew Roche (Applicant) Mid-Coast Council (Respondent) Proceedings 2020/184460 Agiliti Pty Ltd (Applicant) Mid-Coast Council (Respondent) Representation: Counsel: C Norton (Applicants) A Pickup (Solicitor) (Respondent) Solicitors: Woolf Associates (Applicants) Local Government Legal (Respondent) File Number(s): 2020/184455; 2020/184460 Publication restriction: Nil Judgment 1. COMMISSIONER: The appeals are brought under s 8.18 of the Environmental Planning and Assessment Act 1979 ("EPA Act"). They concern two development control orders issued by Mid-Coast Council to Mark Andrew Roche and Agiliti Pty Ltd ("Agiliti") ("the applicants") in respect of a sand quarry at Lot 21 in DP 102994, known as 100 Crowdy Head Road, Harrington ("the site"). 2. The site has been owned by Agiliti since 11 July 2018. Mr Roche is a person who was using the relevant premises at the time of issue of the Orders. The applicants have agreed that a planning approval has not been complied with. The site 1. According to the Council's Statement of Facts and Contentions filed 16 July 2020, the sand quarry has operated on the site since at least 1948. 2. The site has the benefit of Development Consent DA215/95 granted by the Council on 6 February 1998 ("the Consent") under the regime established by State Environmental Planning Policy No 37—Continued Mines and Extractive Industries for the continuation of extractive industries operating as existing uses. The Consent authorises use of the site for development described as: "Continuation of an existing quarry pursuant to the provisions of State Environmental Planning Policy No 37". 1. The site is within Zone E2: Environmental Conservation under the Greater Taree Local Environmental Plan 2010 ("the LEP"). Within that zone, a small number of uses are specified as being permissible with or without consent. Development that is prohibited includes a number of specified uses, as well as "any other development not specified in item 2 or 3". Use for the purpose of a sand quarry or extractive industry is not specified in item 2 or 3 and therefore such use is prima facie prohibited; however, the carrying out of such development in accordance with the Consent is lawful despite that prohibition by operation of s 4.70 of the EPA Act. 2. At the time of issue of the orders the subject of these proceedings (mid-2020), the quarry operating on the site was known as Harrington Sand Quarry. The quarry operated in reliance upon the Consent. 3. Part of the site is within the "Proximity Area for Littoral Rainforests" under State Environmental Planning Policy (Coastal Management) 2018. This area is depicted on Map 4 on p 8 of the draft Ecological Restoration Plan prepared by Mr Meier. It should be noted that no area of the Site is mapped as actual littoral rainforest. The Orders 1. The two development control orders were issued on 2 June 2020 and each is stated to be "Order Number 1 (Stop Use Order) given under Division 9.3 of the [EPA Act]" ("the Orders"). 2. The Orders were given without prior notice to the applicants as Council contended, they were issued in an emergency. 3. Each Order requires the relevant applicant to: "…stop the use of the Premises for as [sic] a Sand Quarry as approved by DA215/95 Or as Extractive Industry or Open Cut Mining activities as defined by [the LEP] Or any other physical activity including but not limited to removal of vegetation and earthworks." 1. The Orders were issued to Agiliti in its capacity as the owner of the site; and to Mr Roche in his capacity as a person using the site. Significantly, the Orders purport to prevent not only the use of the premises in accordance with the Consent, but also "any other physical activity". The Consent and the Rehabilitation Plan 1. The Consent contains a number of conditions. Relevant conditions for the purpose of these proceedings may be summarised as follows: 1. No rehabilitation plan was approved at the time of granting the Consent or expressly identified as being incorporated in the Consent. However, Condition 5 required the submission of a detailed rehabilitation plan to be submitted for the approval of Council. 2. A rehabilitation plan by B J Salter dated 14 December 1998 was submitted and ultimately approved by Council on 25 June 1999 ("the 1998 Plan"). 3. Condition 7 of the Consent required that no removal of vegetation be carried out other than within the areas marked on the approved plan. That plan identifies a strip of land of unidentified width on the western side of the site, adjacent to Crowdy Head Road, which is not within the "area now proposed to be mined". The 1998 Plan identifies this strip as "Section R" and states that "A 20m buffer is required". 4. Condition 10 of the Consent relevantly provided that "Extraction shall not occur below to [sic] a depth of reduced level 18.5m (to allow for a 1.5m buffer above the agreed groundwater level". 1. The 1998 Plan divided the quarry area into 9 sub-areas, identified as "A", "B", "C", "R", and numbered areas 1-5. Section 1.1 is headed "Quarrying plan" and relevantly provides: "Extraction will take place as follows: a) Section "A" will be an ongoing area of extraction for fill sand. This Section could be active for the life of the quarry. Rehabilitation will proceed gradually and progressively as quarrying is completed. b) Section "B" is complete and no further extraction will take place. Some part of the area has either had minimal recent disturbance or has regenerated adequately. The balance will require rehabilitation… c) Section "C" is nearly complete and rehabilitation can commence immediately. Although this section contains sand deposits of commercial value, no further extraction is proposed as Section C is within 100m of the occurrence of Littoral rainforest. d) Other sand will be extracted progressively from Sections 1, 2, 3, 4 & 5. Note that quarrying is nearly complete in Section 1. … f) Extraction to a depth of approximately 1.5 metres above "normal" water table level will occur (Plan RL 18.5). g) From perimeter of the quarry to quarry floor, batters at angle of repose (1:3) will occur." 1. Section 1.2 Rehabilitation Proposal relevantly provides: "The quarry will be rehabilitated in the following order: • Section "B" – requires some recontouring and rehabilitation plantings • Section "R" – adjacent Harrington Rd. A 20m buffer is required. Rehabilitation is only required on the short disturbed section towards the northern end of the quarry – the remainder is revegetated. • Section "C" – will require recontouring, site preparation and plantings. • Sections "1" to "5" will be rehabilitated progressively as quarrying is complete." 1. The 1998 Plan also contains a statement in the Preamble as follows: "This Plan will require regular review and updating to take into account changes in legislation and best practices, together with amendments as a result of progressive quarrying." 1. It is accepted that the references to RL 18.5m in the Consent and 1998 Plan is on the assumed datum reference to 2.1m AHD. Development Control Orders 1. Division 9.3 of Pt 9 of the EPA Act (ss 9.34-9.37) relates to development control orders. Relevantly, s 9.34(1) provides that the orders that may be given include general orders in accordance to the table to Pt 1 of Sch 5. A reference in that table to a "planning approval" includes a reference to a development consent. 2. The Table in Sch 5 relevantly contains the following entries in relation to Orders 1 and 11: 1. The applicants acknowledge that: * Agiliti is the owner of the relevant premises; and * Mr Roche is a person who was using the relevant premises at the time of issue of the Orders; and * The evidence establishes that a planning approval has not been complied with. Accordingly, Orders 1 and 11 may be issued to Agiliti, and Order 1 to Mr Roche. The Court's power on appeal 1. The Court's powers on hearing an appeal against a development control order are as set out in s 8.18, which relevantly provides as follows: 8.18 Appeals concerning orders (1) A person who is given a development control order may appeal to the Court against the order. … (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit. 1. Whilst the Class 1 Applications specifically seek only revocation of the Orders, Contention 1 of the applicants' Statements of Facts and Contentions in Reply each raise the suite of powers available to the Court under s 8.18. 2. A person who gives a development control order may combine multiple orders in the one instrument (Sch 5, cl 38). For that reason, s 8.18(4)(c) should not be construed as limiting the number of orders that can be made in any appeal (for example, if only one order is appealed against, subpar (c) does not have the effect that only one other order may be substituted – more than one order may be substituted). Plans for rehabilitation 1. The applicants' ecological expert, Mr Meier, has prepared a draft Ecological Restoration Plan. He has also provided advice in relation to a final rehabilitation design that is depicted in drawings by the applicants' surveyor, Mr Chamberlain. The extent of the area in which rehabilitation would occur under the proposed Order 11 is essentially the area bounded in black on Map 5 at p 10 of the draft Plan. This includes areas A, C, and parts of areas R, B, 1, 2 and 3. 2. The parties' ecological experts have conferred and expressed their opinions as to the appropriateness of that draft Plan. Subsequently, the parties have reached agreement on changes to be made to the draft Plan and quarry design, having regard to that expert evidence. Preconditions for granting orders 1. A survey produced by the Applicants' surveyor, Mr Chamberlain, and the evidence of Mr Fardell demonstrates that, at least: * In places, the quarry floor is below 2.1m AHD (see in particular the lowest points in Area C); * Activity has occurred in Area R adjoining Area C, with some vegetation cleared from that area, and a mound of sand pushed up towards Crowdy Head Road; and * At the time of Mr Fardell's inspection in June 2020, Mr Roche was a person using the site. 1. The applicants accept that this means: * The site has been used in contravention of the Consent. Regardless of the identity of the person or entity responsible, there is power to issue Order 1 (Stop Use Order) against Agiliti (as owner of the site) and Mr Roche (as a person using the site). * As the Consent has not been complied with, there is power for the issue of Order 11 (Compliance Order) to Agiliti as the owner of the site (again, regardless of the identity of the person or entity responsible for the non-compliance). 1. After the commencement of the hearing on 24 May 2021 the parties requested that the hearing be adjourned, and the appeals be referred to a Court-arranged conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act). The Court arranged this conciliation forthwith and I presided over the conciliation conference. 2. The parties have now agreed that the proceedings be resolved by the making of orders with the effect summarised as follows: * The Orders to both applicants should be modified so that the Stop Use Orders continue to apply, although they should not restrict all physical activity on the site. They should however limit the carrying out of development which requires consent, or is prohibited. Mr Roche's name is amended in the Order issued to him. * Agiliti should be issued with an Order 11: Compliance Order requiring compliance with the Consent. In short, this would require: * Submitting a rehabilitation plan and quarry design in an agreed form ("the New Plan"), which is to supersede the 1998 Plan. The Order specifies the revisions required to the draft Plan, to take into account some matters agreed in the Joint Expert Report in these proceedings; * Providing a costing of the works in the New Plan once approved for the purposes of calculating a bond; * Providing a bond as approved by Council; and * Requiring Agiliti to carry out quarry operations, and rehabilitate the quarry, in accordance with the New Plan adopted under the Consent. * The Stop Use Orders as modified would contain a provision that they cease to have effect upon payment of the bond. They would also contain an express exclusion so that they do not prevent the carrying out of development if a Pt 4 consent or Pt 5 approval is granted in the future. * The obligation to carry out the rehabilitation works under the Order 11 will cease to the extent that they might be inconsistent with a new or modified consent or approval. * There be no order as to costs of the proceedings. 1. An order issued to Agiliti binds its successors in title as owners of the site (EPA Act, Sch 5, cl 26) thus ensuring that the requirement to carry out remediation would continue as against future owners if Agiliti transferred its interest in the site. The Order 11 to Agiliti requires it to notify Council prior to any such transfer. 2. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. 3. For the reasons stated I am satisfied that the parties' decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. Orders Proceedings 2020/184455 (Roche v Mid-Coast Council) 1. Accordingly, the Court orders that: 1. The appeal is upheld. 2. The development control order issued by the Respondent to the Applicant and addressed to "Mark Andrew Roach" dated 2 June 2020 in relation to premises at Lot 21 DP 1029944, 100 Crowdy Head Road, Harrington NSW 2427 is varied as follows: 1. Amend all references to "Mark Andrew Roach" to read "Mark Andrew Roche". 2. Delete the second paragraph under the heading "Terms of Order" and insert instead: "Mark Andrew Roche as the person using the Premises is ordered to stop the following use of the Premises: (i) as a sand quarry, including any use in reliance upon Development Consent DA215/95 granted by the Council on 6 February 1998 in respect of the Premises ("the Consent"); (ii) as an extractive industry or for the purposes of open cut mining, as defined in the Greater Taree Local Environmental Plan 2010 ("the LEP"); or (iii) for the purpose of any other development which either requires consent or is prohibited under the LEP, including but not limited to the removal of vegetation or earthworks." 1. Delete the text under the heading "Period for compliance with Order" and insert instead: "A) This order must be complied with immediately and continues in force until such time as it ceases to have effect, as provided in paragraphs B) and C) below. B) This order ceases to have effect if and when a) Midcoast Council ("the Council") is provided with a bond in respect of remediation of the Premises provided as required by Development Control Order No 11 issued by the Land and Environment Court of NSW to Agiliti Pty Ltd on 24 May 2021; or b) this order is revoked in writing by the Council. C) Despite paragraph A above, if any development consent under Pt 4 or approval under Pt 5 of the Environmental Planning and Assessment Act 1979 is granted or modified in respect of the Premises subsequent to the date of this Order, this Order does not operate to prevent the carrying out of any development or other activity authorised by that consent or approval." 1. No order as to costs. Proceedings 2020/184460 (Agiliti Pty Ltd v Mid-Coast Council) 1. The Court orders that: 1. The appeal is upheld. 2. The development control order issued by the Respondent to the Applicant dated 2 June 2020 in relation to premises at Lot 21 DP 1029944, 100 Crowdy Head Road, Harrington NSW 2427 ("the Premises") is varied as follows: 1. Delete the second paragraph under the heading "Terms of Order" and insert instead: "Agiliti Pty Ltd as the owner of the Premises is ordered to stop the following use of the Premises: (i) as a sand quarry, including any use in reliance upon Development Consent DA215/95 granted by the Council on 6 February 1998 in respect of the Premises; (ii) as an extractive industry or for the purposes of open cut mining, as defined in the Greater Taree Local Environmental Plan 2010; or (iii) for the purpose of any other development which either requires consent or is prohibited under the LEP, including but not limited to the removal of vegetation or earthworks." 1. Delete the text under the heading "Period for compliance with Order" and insert instead: "A) This order must be complied with immediately and continues in force until such time as it ceases to have effect, as provided in paragraphs B) and C) below. B) This order ceases to have effect if and when a) Midcoast Council ("the Council") is provided with a bond in respect of remediation of the Premises provided as required by Development Control Order No 11 issued by the Land and Environment Court of NSW to Agiliti Pty Ltd on 24 May 2021; or b) this order is revoked in writing by the Council. C) Despite paragraph A above, if any development consent under Pt 4 or approval under Pt 5 of the Environmental Planning and Assessment Act 1979 is granted or modified in respect of the Premises subsequent to the date of this Order, this Order does not operate to prevent the carrying out of any development or other activity authorised by that consent or approval." 1. A Development Control Order No 11: Compliance Order is issued to the Applicant in the form of the Order in Annexure A. 2. No order as to costs. ……………………… S Dixon Senior Commissioner of the Court Proceedings 2020/184460 Annexure A (1144533, pdf) ********** 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: 27 May 2021