Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

Land and Environment Court of New South Wales

CITATION : Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

Shoalhaven City Council (Applicant) PARTIES : South Coast Concrete Crushing & Recycling Pty Ltd (First Respondent) Abib Pty Ltd (Second Respondent)

FILE NUMBER(S) : 40630 of 2008

CORAM: Lloyd J

EXISTING USE :- categorisation of current and historic uses - Shoalhaven Local Environmental Plan 1985 - uses categorised as extractive industry and industry - distinction between ancillary use and separate independent use - enlargement, expansion or intensification of extractive industry - appropriate limit on rate of extraction

CONSTRUCTION AND INTERPRETATION :- development consent allowing the "crushing and recycling of waste products" - use of extrinsic materials to interpret development consent KEY ISSUES: MINES AND MINERALS :- interpretation of "minerals" and "mining operations" under Mining Act 1992 - immunity under s 74 of Mining Act from provisions of the Environmental Planning and Assessment Act 1979 - temporal application of immunity

RES JUDICATA :- inconsistent judgment - prior judgment based upon a concession of parties - party in present case not a party to prior judgment

Environmental Planning and Assessment Act 1979 s 106, s 107 & s 109 Environmental Planning and Assessment Model Provisions 1980 cl 4, cl 35, Sch 1 cl 7 Environmental Planning and Assessment Regulation 2000 cl 8K LEGISLATION CITED: Mining Act 1992 s 74 Mining (General) Regulation 1997 cl 3, cl 4, cl 50, Sch 1 (repealed) Mining Regulation 2003 cl 3, cl 5, Sch 2, Sch 11 cl 6, Shoalhaven Local Environmental Plan 1985, cl 5, cl 6