Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 4) [2014] NSWLEC 102

Land and Environment Court New South Wales

Medium Neutral Citation: Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 4) [2014] NSWLEC 102 Hearing dates: 16 July 2014, 21 July 2014 Decision date: 22 July 2014 Before: Pain J Decision: See paragraph 21 Catchwords: PROCEDURE - application of case management principles to substantially new legal and factual issue raised in defence Legislation Cited: Civil Procedure Act 2005 s 57, s 61 Land Acquisition (Just Terms Compensation) Act 1991 s 56 Cases Cited: Allandale Blue Metal Pty Ltd and Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [2011] NSWLEC 242 Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 Vincent Land Pty Ltd v Hyder Consulting Pty Ltd [2012] NSWLEC 261 Category: Procedural and other rulings Parties: Allandale Blue Metal Pty Limited (Applicant) Roads and Maritime Services (Respondent) Representation: Mr R Lancaster SC with Mr M Seymour (Applicant) Mr P Tomasetti SC with Mr N Eastman (Respondent) Sparke Helmore (Applicant) Ashurst (Respondent) File Number(s): 30853 of 2010

Judgment 1In these Class 3 proceedings Allandale Blue Metal Pty Ltd (ABM) the Applicant seeks compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (Just Terms Act) for the compulsory acquisition by the Respondent, Roads and Maritime Services (RMS), for part of land owned by ABM. The proceedings were commenced on 21 October 2010. The land is leased to Quarry Products (Newcastle) Pty Limited (QPN) which carries out the operation of the Allandale Quarry, an andesite quarry, on the residue land. QPN also filed proceedings pursuant to the Just Terms Act on 21 October 2010 (30851 of 2010). 2In Allandale Blue Metal Pty Ltd and Quarry Products (Newcastle) Pty Ltd v Roads and Maritime Services [2011] NSWLEC 242 Biscoe J ordered that a separate question be determined prior to the hearing of the substantive proceedings in both matters. The separate question was whether development consent no 118/679/23 granted by Cessnock City Council on 8 May 1979 for the Allandale Quarry (a) only permits quarrying within the area of the circle labelled "proposed quarrying area" on the Indicative Plan for Quarry Products Pty Ltd development application dated 26 March 1979 or in the alternative (b) is void for uncertainty. In Quarry Products (Newcastle) Pty Ltd and Allandale Blue Metal Pty Limited v Roads and Maritime Services (No 3) [2012] NSWLEC 57 Sheahan J determined that the consent granted by Cessnock City Council on 8 May 1979 permits quarrying only within the area on the "indicative plan" included in the DA dated 26 March 1979, circled and labelled " proposed quarrying area " (question 1(b) was not pressed by the RMS). QPN accepted the amount of compensation in the compensation notice given by RMS dated 27 July 2010 on 24 November 2011. The determination of compensation by the Valuer-General was for QPN's disturbance claim as provided under the Just Terms Act. That claim was based in part on the loss of andesite to its quarrying business. The Court noted the acceptance by QPN of the compensation in the compensation notice dated 27 July 2010 and ordered that the proceedings be dismissed on 22 June 2012. 3The decisions of Biscoe J and Sheahan J were appealed by ABM to the Court of Appeal which dismissed the appeals (Allandale Blue Metal Pty Ltd v Roads and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 (Allandale CA)). 4At the outset of the twelve day substantive hearing on Wednesday 16 July 2014 before me, ABM's counsel objected to specified paragraphs in the points of defence served on Friday 11 July 2014 by RMS in response to the amended points of claim (APOC). That defence was provided in accordance with directions made at a pre-trial mention on 4 July 2014 before Craig J. I am ruling on that objection in this judgment. The disputed paragraphs refer inter alia to the breach of condition 7 (that the applicant shall consult with the Soil Conservation Service and prepare and adhere to a plan satisfactory to that service for erosion control and restoration of quarried areas) and condition 8 (requiring the retention of ownership within 1 km of the quarry) and allege in numerous paragraphs that the conduct of the quarry use is in a manner or for a purpose contrary to law. The effect of these paragraphs in the defence is to allege for the first time in the proceedings that the development consent granted in 1979 was not lawfully commenced and therefore lapsed. While the finding sought in the defence reflects the wording of s 56(1)(c) of the Just Terms Act, which refers to any increase in the value of land caused by its use in a manner or for a purpose contrary to law, in the process of making such a finding the Court would effectively be asked to find that all the quarrying work conducted pursuant to the consent granted in 1979 for over thirty years, and which continues, is unlawful.