Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207

Land and Environment Court of New South Wales

CITATION : Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207

APPLICANT Reavill Farm Pty Limited PARTIES : RESPONDENT Lismore City Council

FILE NUMBER(S) : 10191 of 2010

CORAM: Moore SC

KEY ISSUES: DEVELOPMENT CONSENT - DEVELOPMENT MODIFICATION - EXTRACTIVE INDUSTRY :- is the mofified development substantially the same as the original development

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96(2)

Vasic Pty Limited v Penrith City Council (Stein J, unreported February 1992) CASES CITED: Moto Projects No. 2 Pty Limited) v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Moy v Warringah Council [2004] NSWCCA 77; (2004) 133 LGERA 49; (2004) 142 A Crim R 577 Manzie v Willoughby City Council (1996) NSWLEC 26

DATES OF HEARING: 23 and 24 June, 27 July 2010

DATE OF JUDGMENT: 3 August 2010

APPLICANT Mr T Robertson SC INSTRUCTED BY Burrell Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, barrister INSTRUCTED BY Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

MOORE SC

3 August 2010

10/10191 Reavill Farm Pty Limited v Lismore City Council

JUDGMENT Introduction 1 SENIOR COMMISSIONER: The rolling hills and the small valleys of the coastal hinterland to the south-east of Lismore host many differing activities of residents and businesses of the region. Amongst them, in that rural and rural residential landscape, is located a small sandstone quarry known as Champions Quarry. The quarrying activities are extracting ripped and broken sandstone from a pit that faces, generally, north-east from the bottom half of the southern slope of one of these valleys. 2 The closest residence to the quarrying activities is that of Mr and Mrs Woolley located some 420 m to the east of the quarry face and at a level, in the landscape, somewhat lower than the uppermost bench upon which quarrying activities take place. It is the relationship between that dwelling and the quarry that gives rise to these proceedings. Past approval processes 3 The quarry has been operating for over 17 years to produce small volumes of ripped sandstone. In 2006, a further development approval was given increasing the annual capacity of the quarry to 29,000 m³. One of the conditions of that development approval (2005/999) was that, at a location marked on one of the plans forming part of the application (and referenced in condition 1 of the approval) there would be planted an 8 m wide vegetated buffer commencing at approximately the middle point of the quarry on its north-eastern orientation and then curving to the north-west following, in its initial elements on the plan, the line of the outer extent of the proposed quarry operations. The nature and detail of what I have concluded was approved as required by this element of the development consent, together with a copy (Figures 3 and 4) of portions of each of the relevant plans that are critical to understanding my conclusions, appear later in this decision. 4 Two subsequent modification applications to the 2006 expansion approval were made to (and approved by) Lismore City Council (the council). These modifications were both made in December 2006. Both of them relate to the vegetated buffer strip noted earlier. In the order that they were tendered in the council's bundle of materials in the proceedings, the first of these modifications [this being made pursuant to s 96(1) of the Environmental Planning and Assessment Act 1979 (the Act)] was to condition 14 of the conditions of development consent for the expanded quarry operations. Condition 14 relates to tree planting requirements and was originally in the following form: Progressive revegetation and ultimate rehabilitation to be carried out as generally outlined in Section 3.7 "Vegetation Management" of the Statement of Environmental Effects submitted with the development application.