Land and Environment Court of New South Wales CITATION : Kay and Ors v Wingecarribee Council [2007] NSWLEC 50 APPLICANT Arthur Geoffrey Kay, Lesley S. Kay and Gordon Kay PARTIES : RESPONDENT Wingecarribee Council FILE NUMBER(S) : 10551 of 2006 CORAM: Hussey C KEY ISSUES: Appeal :- Section 121B Order - Cease unauthorised quarrying activities and rehabilitate area LEGISLATION CITED: Environmental Planning and Assessment Act 1979 CASES CITED: Cassanitti v Canada Bay Council [2002] 123 LGERA 53; Stuchbury v Pittwater Council [1999] NSWLEC 177 DATES OF HEARING: 04/10/2006 DATE OF JUDGMENT: 8 February 2007 APPLICANT Mr M. Baird, barrister LEGAL REPRESENTATIVES: RESPONDENT Mr B. Bilinsky, solicitor of B. Bilinsky and Co. JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C Date : 9 February 2007 10551 of 2006 Arthur Geoffrey Kay, Lesley S. Kay and Gordon Kay v Wingecarribee Council JUDGMENT Background. 1 This appeal was lodged against a Section 121B Order to cease all quarrying activities and rehabilitate an excavated area on a rural property situated at Lot 40 Inveray Road, Sutton Forest. The property is described as Lot 40 in DP 751284 and has an area of approximately 65 ha. 2 The property is zoned 1(a) (Rural "A") under the Wingecarribee Local Environmental Plan. 3 The proceedings commenced with a view and the parties agreed that the matter be determined by way of an on-site hearing (OSH). Following the view and hearing of preliminary submissions, I gave my initial findings that the existing scope and presentation of the material excavation and transport operations on the site were extensive and could be classified as "quarrying/extractive industry", which apparently would require development consent. No development consent has been issued for this type of activity on the subject site. 4 Following this, the applicant gave an undertaking to cease all quarrying activities and transportation of extracted material off-site. 5 However, Mr Baird's submissions raised some detailed questions about the validity of the Order and accordingly the matter was adjourned to allow the respondent to reply. This resulted in the submission of detailed written submissions. The Order. 6 The s 121B Order No. 1 was issued on 23 May 2006 and relevantly included the following provisions: The Council of the Shire of Wingecarribee (the "Council") hereby orders you to cease all quarrying activities and rehabilitate the quarried area in accordance with a rehabilitation plan approved by council on your property at Lot 40 DP751284 Inveray Road, Sutton Forest (the "Property"), within the time specified. Pursuant to Section 121L of the Environmental Planning and Assessment Act 1979 , you are advised that the reasons for the giving of the above Order are as follows: o No approval has been granted for quarrying operations under the provisions of the Environmental Planning and Assessment Act, 1979. Pursuant to s 121M of the Environmental Planning and Assessment Act 1979, you are advised that you must comply with the terms of the Order by no later than 16 June 2006. Submissions. 7 In the first instance, Mr Baird referred to the applicant's points of claim, which identified its basis for setting aside the Order. These points seem to be premised on the basis that the excavation works were for a farm dam, for which it was contended development consent was not necessary. 8 This proposition was put to the Court at the view, but I am unable to accept this. It was obvious from the site inspection that there is a farm dam on the property, whose location adjacent to watercourse and form and scale confirm to me its utility and function as a farm dam. 9 However, the scale of the subject excavation is in stark contrast and does not present as a farm dam in my assessment. Therefore I find the points of claim unfounded and of very little assistance to the applicant's case. 10 Mr Baird also made submissions about the requirements of an Order, in particular the requirement for adequate reasons and referred to other authorities dealing with the matters that are to be covered in subject Orders. He made reference to Cassanitti v Canada Bay Council [2002] 123 LGERA 53, where Pain J deal with the requirements to provide adequate reasons in an Order. 11 Reference was also made to Stuchbury v Pittwater Council [1999] NSWLEC 177, where Sheahan J accepted that: i) mere restatement of the conditions which must be satisfied before the discretionary power to make the order arises is not provision of reasons for the order …; and ii) reasons must make intelligible the true basis for the decision to issue the order … so that iii) person who is affected by the order is fully informed on basis for it and the reasons for issuing it, so that iv) affected persons have sufficient information to decide whether to accept the order or appeal it. 12 Accordingly, Mr Baird made further submissions about the validity of the order, concluding that the order should be set aside. 13 Mr Bilinsky responded and presented details involved in of the making of the Order and discussed the association between the notice of intention and the actual Order. Insofar as he distinguishes the aforementioned authorities from application to the subject case and discusses the various categorisation of land uses in the LEP (noting that "quarrying operations" is not a term defined in either planning instruments or a Model Provisions), it is apparent to me that these submissions go to the validity of the Order. 14 As the parties did not identify any points of law, in terms of the validity of the order prior to the merits hearing, I confine my assessment to the merits presented. 15 On this basis, s 121B of the EPA & Act allows council to make an appropriate order "to cease using premises for a purpose specified in the order", under circumstances where: (a) Premises are being used for a purpose that is prohibited, (b) Premises are being used for a purpose for which development consent is required but has not been obtained, (c) Premises are being used in contravention of the conditions of a development consent. 16 According to the details in the Statement of Basic Facts, on which I rely, council officers undertook a site inspection in October 2002 and observed that there was a landfill area covering approximately 2000 sq m and adjacent quarried area of approximately 2400 sq m. A follow-up inspection occurred on 22nd May 2003, indicating continuing quarrying operations. 17 Further site inspections on 9 February 2006 revealed further quarrying operations covered an area that was roughly twice as large and deep that was observed on 22 May 2003. On the site was: "a near new crusher/screening machine, a portable lighting unit, an unregistered bogie tipper, a dozer and Ioader were observed within the quarried area. All the equipment was observed as being located and adjacent to two substantial stockpiles (approximately 1000 cum loose material needs pile) of dark yellow sand…" 18 Subsequent site inspections on 20 June 2006 indicated additional vegetation clearing and excavation of overburden being stockpiled to enable further excavation. From GPS surveys, the calculated surface area of the excavated area was determined to be 17979 sq m, resulting in council's assertion that this equates to the removal of some 105842 tonnes of material from its natural state. 19 As I have noted, the council and on appeal the Court, has the power to make appropriate Orders. In the circumstances of this case, I consider it reasonable to make the Order in the first instance to cease the excavation work. 20 From my observations on the view, it is likely that environmental damage could result if the excavated area is not restored. Under these circumstances, I consider rehabilitation is required but the current Orders lacks specificity. 21 Taking into account the extent of the unauthorised excavation and landfilling, presumably some time is required for the appropriate expert's to survey and prepare a satisfactory rehabilitation plan. Such plan should clearly identify the extent of the rehabilitation works, including provision of landscaping and the timeframe for completing the works, within acceptable environmental limits. On the basis of the information put before the Court and observations on the view, it seems that a reasonable period for the applicant to complete this rehabilitation plan would be 3 months. Under these circumstances I consider the original Order should be modified. 22 In summary then, I am satisfied in the factual and merit circumstances of this case that it is appropriate to issue an appropriate modified Order to cease any excavation and transporting of material from this property. Furthermore, the Order should clarify the requirements for the rehabilitation works. 23 Notwithstanding this, I acknowledge the submissions regarding the validity of the subject Order, but in the absence of any appropriate legal challenge, the following Orders are to be made. Court Orders 1. The appeal is allowed in part. 2. Pursuant to s 121B of the Environmental Planning and Assessment Act 1979, the property owners are ordered to cease all material excavation/quarrying/transport activities at Lot 40 Inveray Road, Sutton Forest, from the date of these Orders. 3. The property owners are to submit a rehabilitation plan covering the existing landfill and excavation areas, including an appropriate timeframe to complete these works and a landscape provision and maintenance program. Such plan to be submitted to council within 3 months, from the date of these Orders. 4. The approved rehabilitation works are to be undertaken in accordance with appropriate conditions required by council, to ensure satisfactory environmental amenity. ___________________ R Hussey Commissioner of the Court Lr/rjs 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.