Land and Environment Court New South Wales Medium Neutral Citation: Agricultural Equity Investments Pty Ltd v Westlime Pty Ltd (No 3) [2015] NSWLEC 75 Hearing dates: 5, 6, 7 and 8 May 2014 Date of orders: 08 May 2015 Decision date: 08 May 2015 Jurisdiction: Class 4 Before: Pepper J Decision: Amended summons dismissed. Applicant to pay respondents' costs. Exhibits to be returned. Catchwords: JUDICIAL REVIEW: whether development consent spent such that it could not be subsequently modified – whether exercise of discretionary power to modify a development consent gives rise to a jurisdictional fact that development as modified is substantially the same development as the original consent – whether the council erred by comparing the proposed modified development with the development as earlier modified and not the development the subject of the original consent – whether the decision to approve the modification manifestly unreasonable – whether appropriate to grant injunctive relief to prevent any reliance on the modified approval – amended summons dismissed. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 76A, 80(3), 83, 91, 96, 106(a), 109B, 124 Environmental Planning and Assessment Model Provisions 1970 Environmental Planning and Assessment Model Provisions 1980 Land and Environment Court Act 1979, s 56A Mining Act 1992 Parkes Local Environment Plan 2012 Parkes Local Environmental Plan 1990 Cases Cited: Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1 Auburn Municipal Council v Szabo (1971) 67 LGRA 427 Australand Holdings Ltd v Hornsby Shire Council (1998) 98 LGERA 312 Bardsley-Smith Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 73 Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41 Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81; (2009) 167 LGERA 134 Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15 Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 348 Coalcliff v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 320 Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247 House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 Lesnewski v Mosman [2005] NSWCA 99; (2005) 138 LGERA 207 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 Minister for Local Government v South Sydney City Council [2012] NSWCA 288; (2002) 55 NSWLR 381 Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Parramatta City Council v Hale (1982) 47 LGERA 319 Parramatta City Council v Pestell (1972) 128 CLR 305 Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Reid's Farm Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252 Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 Swadling v Sutherland Shire Council (1994) 82 LGERA 431 Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198; (2013) 200 LGERA 1 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8 Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 Willoughby v Dasco Design (2000) 111 LGERA 422 Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 Winns v Director-General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199; (2001) 116 LGERA 378 Category: Principal judgment Parties: Agricultural Equity Investments Pty Ltd (Applicant) Westlime Pty Ltd (First Respondent) Parkes Shire Council (Second Respondent) Representation: Counsel: Mr I Hemmings SC with Ms A Hemmings (Applicant) Mr C Ireland (First Respondent) Ms H Irish (Second Respondent) Solicitors: Hones La Hood (Applicant) Ashurst (First Respondent) Pikes and Verekers Lawyers (Second Respondent) File Number(s): 41125 of 2012 TABLE OF CONTENTS Topic Paragraph AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief [1] The Granting of the 1988 Consent [5] Events Subsequent to the Granting of the 1988 Consent [17] The 2009 Modification Approval [35] The 2012 Modification Approval [50] Issues for Determination [62] Legislative Framework Governing the Proceeding [64] Evidence of the Parties [76] Was the 2009 Approval Invalid Because the 1988 Consent Was Spent? [91] The Principles of Construction of Development Consents [93] The 2009 Modification Approval is Valid [94] Did the Council Have Regard to the 1988 Consent When Determining the 2012 Modification Approval? [121] Whether s 96(2)(a) of the EPAA Gives Rise to an Objective Jurisdictional Fact as to the Council's Satisfaction that the Developments Were Substantially the Same [139] Whether the Decision to Grant the 2012 Modification Approval Was Manifestly Unreasonable [165] Legal Principles Governing the Power to Modify in s 96(2) of the EPAA [173] Discretion to Order Relief [188] Orders [198] Judgment AEI Seeks Declarations that Mine Modification Approvals are Invalid and Consequential Injunctive Relief 1. The following events, drawn from the four volumes of documentary materials relied upon by the parties, and a statement of agreed facts ordered by the Court, are uncontentious. 2. The applicant, Agricultural Equity Investments Pty Limited ("AEI"), is the holder of exploration licence 7242 ("EL 7242"). The first respondent, Westlime Pty Limited ("Westlime"), is the registered proprietor of land at London Road, Parkes, which is known as the 'London-Victoria Mine' ("the mine"). The area of the mine is 280ha. EL 7242 covers a broad area of land, including the land within which the mine is situated. 3. From about the late 1800s the mine was worked as a gold mine, with those mining activities ceasing in the 1950s. In the late 1980s BHP Gold Mine Limited ("BHP") sought to carry out open cut gold mining on the land at the mine, together with associated ore treatment to extract gold metal products. 4. Accordingly, on 29 April 1988, BHP lodged with the Parkes Shire Council ("the council") a development application to carry out a gold mining operation at the mine ("the 1988 DA"). The proposal was described by the council in a letter of notification to relevant authorities and interested persons as: The proposal involves the establishment of an open cut mine on the site of the former London/Victoria mine Workings, south of Parkes, adjacent to Shire Road No. 47, known as the London Road. Associated with the open cut mine will be overburden storage area, a process residue storage dam, water catchment dams, office and amenities building and a carbon-in-pulp treatment plant to extract gold from the ore, heap leach treatment for some of the ore may be established at a later date. It is proposed to extract up to eleven million tonnes of material over the projected five year life of the mine. The Granting of the 1988 Consent 1. The 1988 DA was accompanied by an Environmental Impact Statement for the Proposed London-Victoria Mine Parkes, NSW prepared by BHP ("the 1988 EIS") and a Summary of Environmental Impact Statement for the London-Victoria Gold Mine Parkes, NSW prepared by BHP, both dated May 1988 ("the 1988 EIS Summary"). 2. The 1988 EIS Summary explained that both the heap leach method of gold ore processing and carbon-in-pulp (or CIP) method would be used, and provided that "ore from additional reserved [sic] in the London-Victoria project area or other mining operations may also be processed at the CIP plant at the site". It provided that the processing plant would crush, screen, grind and mill the gold ore prior to treatment in the leach tanks of the CIP plant, and that the operation of the processing plan would be 24 hours per day, seven days per week. 3. With respect to the project outline, the 1988 EIS stated that "the life of the project is expected to be 4 years". An extension of this time was stated to be "dependent on whether additional ore reserves are located and the continuing market for gold". It was noted that additional open cut reserves may be found on the lease thereby extending the life of mine, and that it was "also possible that an underground mine may be developed to recover deeper and higher grade ores". In this regard, the 1988 EIS stated that "ore from additional reserves in the London-Victoria project area or other mining operations may also be processed by the C.I.P. plant at the site." 4. The 1988 EIS described the project as involving the "mining of gold ore…by open cut methods". The "environmental effects and project justification" were that "the land use on the site will change for the period of the project from rural to mining and mining purpose. At the completion of mining the land will be restored and made available for rural purposes again". Further, it explained that the gold bearing ore recovered from the open pit mine would be treated in a CIP processing plant and that this process has been determined to be the "most suitable for the gold ore on the site". 5. With respect to the proposed surface facilities, the 1988 EIS noted that because of the "relatively short period of mining all structures will be designed to be demountable to allow site clearance and rehabilitation at the end of the mine life". 6. In relation to the final void, the 1988 EIS summary stated that "given the mine life, possible variations in the gold market and other considerations, it is not possible to accurately predict the final location and dimensions of the void". However, at an appropriate time prior to the cessation of the open cut mining, it was anticipated that there would be discussions with the relevant authorities as to the most appropriate use of the void. 7. In section 6.2 "Land-Use", the 1988 EIS stated that: Other areas of the project site will change from grazing land or cropping land to mining purposes for the life of the project, a period of up to 10 years. Progressive rehabilitation will gradually revegetate disturbed areas during the life of the project. At the completion of mining, all disturbed areas will be revegetated as described is Sections 4 and 5. This will restore the land to a form of improved pasture for grazing. The void at the cessation of the mining will replace the existing abandoned workings and will be the basis of a beneficial use and fenced off for the safety of stock and personnel. 1. The 1988 EIS required that all disturbed areas, including the process plant, offices, workshops and car parks would be revegetated to restore the land to a form of improved pasture for grazing, and that rehabilitation to an appropriate standard would allow refund of the rehabilitation bond lodged at the commencement of the project. 2. A council minute dated 17 May 1988 noted that the current projected life of the mine was five years, but that "it is hoped that the life of the mine will be extended by the discovery of other ore reserves." It observed that the proposed development was designated development under the Environmental Planning and Assessment Act 1979 ("the EPAA"). 3. On 21 June 1988 BHP was granted a consent to development application DA 379/88 by the second respondent, Parkes Shire Council ("the council"), for the "operation of an open cut gold ore mine and the construction and operation of an ore treatment plant to extract gold" on the land ("the 1988 consent"). 4. The consent was granted subject to conditions, which relevantly included: 1. condition 2.1, which required the submission of annual reports "during the life of the development"; 2. condition 3.4, which required BHP to enter into an agreement with the council for the supply of water to the plant and ancillary works; 3. condition 3.5, which required the submission of erosion prevention works and, a development application to the council for the water pipeline; 4. condition 3.7, which required the carrying out of erosion control works and the rehabilitation of the site in consultation with the relevant statutory authorities; 5. condition 3.14, which required consultation with the relevant statutory authorities regarding "the future use of the site and final void at least six months before the end of the mine life"; 6. condition 3.16, which required the consultation with the Forbes Pasture Protection Board concerning any effect the project may have on a specified 'Travelling Stock Reserve' and to reach agreement with the Board regarding rehabilitation measures required to ensure the future use of the reserve "at the end of the project"; 7. condition 3.17, which stated the necessity to obtain all other statutory approvals required for the project not listed in the 1988 consent; 8. condition 4.4, which required "at the end of the mine life transfer to Parkes Shire Council, at no cost, ownership of the pipeline system supplying water to the site"; and 9. condition 5.1, which provided that "ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council". 1. The 1988 consent did not require the lodgement of a rehabilitation bond, however, a bond was required under mining lease ML 1215 which was granted to BHP on 22 December 1988. Events Subsequent to the Granting of the 1988 Consent 1. An agreement for the supply of water between BHP and the council was signed on 29 March 1989 ("the supply of water agreement"). Clause 4.4 stated that, "the Shire shall do all things reasonably necessary on its part to facilitate effective operation of the Pipeline and will co-operate with BHP to ensure the safe and efficient operation of the Pipeline". 2. On 13 October 1989 BHP agreed to pay road maintenance contributions to the council for the haulage of ore to the land. In a letter to the Manager of the Parkes Gold Mine dated 28 November 1991, the council stated that, "these contributions were agreed to in accordance with Condition 5.1 of Development Consent No 379/88 for the London Victoria Mine." 3. Almost a decade of open cut gold mining and ore processing for gold ensued. 4. In the meantime, in late 1993 Hargraves Resources NL ("Hargraves") purchased the mine and treatment plant. In a letter to the council dated 14 June 1994, Hargraves stated that: To extend the life of Parkes operation, we are undertaking an exploration program on our mining lease at Calarie (Forbes). If this program successfully identifies economic reserves or ore, we propose to mine Calarie and transport the ore by road to the treatment plant at Parkes. 1. In June and July 1995 Hargraves, together with its consultants RW Corkery & Co Pty Limited ("Corkery"), explored the possibility of transporting ore by road from Hargraves' mining lease at Calarie to the mine for processing. 2. On 11 July 1995 the council wrote to Corkery in respect of that proposal and stated: Attention is drawn to Development Consent Condition No 5.1 for the Parkes Gold Mine which states: Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council. Council considers that other matters associated with the processing of Calarie Ore at the Parkes Gold Mine's plant can be adequately addressed by the existing development conditions for the Parkes Mine. 1. On 18 July 1996 the council wrote to the mine manager, copying the letter to Hargraves, noting the manger's advice that "mining activities at the London-Victoria Mine has ceased and processing will be completed by the end of October this year." Attention was drawn in the letter to condition 4.4 of the 1988 consent requiring the ownership of the water pipeline system supplying water to the site to be transferred to the council at the end of the mine's life, and it urged discussions to be held as soon as possible in this regard. 2. In approximately October 1996, the processing of stockpiled ore from the mining operation on the land had ceased and the mine was placed in care and maintenance. 3. Meanwhile Hargraves, and a prospective purchase of the land (Michelago Resources NL), considered options for continuing mining and processing operations on the land. 4. By December 1996, however, all of the mining and processing of the extracted ore had ceased, and on 5 December 1996, the council wrote to Hargraves noting this fact and requesting that discussions be held in relation to the transfer of the pipeline. 5. A letter to similar effect was written by the council on 10 October 1997. Attached to the letter were minutes of a meeting held between the council and Hargraves in an attempt to resolve the issue. 6. But on 15 January 1999, pursuant to a request by Hargraves to exercise a five year option in the supply of water agreement, the council wrote to Hargraves stating: You have previously advised Council that mining operations have ceased at the London-Victoria Mine, with rehabilitation the only ongoing activity. Consequently it would seem inappropriate to renew the option, which is contrary to the provisions of condition 4.4 of Council's Development Consent No. 379/88. Council is however willing to delay any transfer of asset ownership pending the proposed sale [of the mine]. Should the new mine owners anticipate reopening the mine Council would be more than happy to negotiate a new water supply agreement, based on the availability of the effluent supply at that time. 1. On 10 July 2000, Western Red Quarries Pty Ltd (now Westlime), lodged a development application (DA00121) in respect of the land at the mine for development described as "operation of a milling, blending and distribution centre, to produce processed and/or blended agricultural, industrial and hard rock products" for its limestone and road base aggregate processing business, the Parkes Processing Centre. Consent was granted by the council on 9 February 2001 ("the 2001 processing facility consent"). 2. Approval to modify the 2001 processing consent to allow heavy vehicles to use designated roads to access the Parkes Processing Centre was subsequently granted by the council on 4 December 2002 ("the 2002 processing facility approval"). 3. By 20 April 2005, in a letter from the liquidator of Hargraves to the Department of Primary Industry, the mine was confirmed to have been sold to Westlime. In that letter, a request was made to cancel ML 1215 and to release the security bond of $60,000. 4. On 27 June 2005 ML 1215 was cancelled and the security bond released, the Director-General for Primary Industries having determined that rehabilitation of the lease area had been adequately completed. 5. On 4 September 2008 Westlime lodged an application with the council to further modify the 2001 processing consent for "recovery of tailings stored onsite from previous mining operation for blending to produce construction materials". Approval was granted to Westlime in respect of the further modification application on 18 November 2008 ("the 2008 processing facility approval"). 6. Meanwhile, AEI had been issued with EL 7242 on 7 November 2008 (it has subsequently been renewed on 11 May 2011 and 25 June 2012). The 2009 Modification Approval 1. On 16 December 2008 Westlime lodged an application with the council to modify the 1988 consent for activity that comprised the "recommencement of extraction operations from the London Victoria Mine", being a use of the land for the purposes of an "extractive industry" ("the 2008 modification application"). 2. A Statement of Environmental Effects prepared by Corkery and dated December 2008 ("the 2008 SEE"), noted that Westlime "seeks to recommence extraction activities within the Mine in an area adjacent to the existing extraction area. This material would be processed and blended with material sourced from other locations to produce a range of products for use for construction and agricultural purposes". 3. The 2008 SEE noted that the 1988 consent and the 2001 processing facility consent applied to the site. Moreover, that ML 1215 had been relinquished by the administrator of Hargraves following the Department of Primary Industries – Mineral Resources determination that rehabilitation of the lease area "had been adequately completed and the security bond returned to the leaseholder". 4. Under section 2.1 "Objectives and Approvals Sought" of the 2008 SEE, the proposed modification was described as: The purpose of the development would be to provide raw material for the Parkes Processing Centre to supplement raw material currently sourced from the Northern and Southern Overburden Emplacements. … It is asserted that the proposed modification would result in operations that are of a significantly smaller scale than currently approved under Development Consent 379/88 and, as a result, the proposed operation would be substantially the same as the approved operation. … The Applicant's primary objective is to obtain a source of raw material of suitable composition and fragment size for processing and blending with other materials within the Parkes Processing Centre to maintain the quality and consistency of the Centre's products and meet client demand for products with specific specifications. 1. The 2008 SEE further described the approval sought from the council to modify the 1988 consent as including new conditions 5.2 and 5.3, which were to provide that: Condition 5.2 - Up to 120,000t per year of material, being material not classified as a mineral under the Mining Act 1992, may be extracted from an area adjacent to the London and Victoria and Shaws Pits as described in the document titled "Statement of Environmental Effect to support an Application for a Modification of Development Consent 379/88 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008. Condition 5.3 - the safety bund may be relocated or upgraded as described in the document titled "Statement of Environmental Effects to support an Application for a Modification of Development Consent 379188 for the London Victoria Mine" prepared by RW Corkery & Co and dated November 2008. 1. The 2008 SEE noted that all activities presently conducted at the mine were being conducted under the 2001 processing facility consent and that "no activities approved under" the 1988 consent were being carried out. 2. The 2008 SEE went on to describe the extraction operations and rehabilitation of the landform, stating, however, that it had been determined earlier that the rehabilitation of the mine was complete. 3. Finally, in section 4.2 "Substantially the Same Development", after quoting s 96(2) of the EPAA, the 2008 SEE went on to state that: The applicant contends that the proposed modification, if approved, would effectively remain "substantially the same development" for the following reasons. Firstly the proposed modification would increase the total area of disturbance from approximately 118ha to approximately 123ha, an increase of approximately 4%. In addition, the total size of the extraction area would be increased from approximately 34.3ha to approximately 36.1ha, an increase of approximately 5%. Secondly, the proposed extraction methods, namely drill, blast, load and haul, would be the same as the approved extraction methods, albeit on a smaller scale. Thirdly, construct of a bund around the perimeter of a proposed extraction area is an essential component of any extraction operation to ensure the safety, in the long term, of the public and individuals who may inadvertently enter the Project Site. Finally, as indicated in Section 3, the environmental impacts associated with the proposed modification are not considered to be significantly greater than those associated with the existing, approved impacts. 1. By letter dated 17 December 2008, the 2008 modification application was publicly notified by the council. 2. Correspondence passed between the council and the NSW Department of Primary Industries indicating that the Department had no objection to the proposed modifications to the 1988 consent and that the material proposed to be extracted from the extension next to the London and Shaw pits was not classified as a mineral under the Mining Act 1992, and therefore, no mining lease was required. 3. On 21 April 2009 the council granted approval under s 96 of the EPAA for the modification of the 1988 consent subject to conditions ("the 2009 modification approval"), which included: Condition 23 - Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council. Condition 24 - Except as except as expressly provided by these general terms of approval, works and activities must be carried out in accordance with the proposal contained in: The development application (DA 379/188) submitted to Parkes Shire Council on 17 December 2008; and All additional documents supplied to the DECC in relation to the development including the "Statement of Environmental Effects to support an application for a Modification of Development Consent 379/88 for the London Victoria Mine" dated December 2008 and the email transmission to Parkes Shire Council from RW Corkery & Co Pty Limited dated 23 March 2009. 1. A report presented to the council prior to its determination noted, by way of background, that the council had first granted approval for the use of the land for the purposes of a mine in 1988, but that it had ceased to operate as a mine in October 1996, after which time, it had been purchased by Westlime. 2. The report observed that the approval of the application meant that raw products for the Parkes Processing Centre would be sourced on site and therefore would not need to be transported from elsewhere. In addition, the report stated that the site was currently being used as a processing plant for Westlime's operations and that the proposed modification, which involved the recommencement "of minor scale raw product extraction" from the mine, would allow the plant to continue to operate. 3. Nevertheless, as at 21 April 2009, the date of determination of the 2009 modification approval, the open cut gold mining activities approved in the 1988 consent had ceased, the project site on the land had been rehabilitated, the performance bond returned under ML 1215 and the council had requested the transfer of ownership of the water supply pipeline system in accordance with condition 4.4 of the 1988 consent. 4. The 2009 approval effected no modification to the 2001 processing facility consent. The 2012 Modification Approval 1. AEI subsequently lodged another application to modify the 1988 consent, as modified by the 2009 modification approval, on 1 May 2012 ("the 2012 modification application"). That application sought permission to import and export gold concentrate from the land to permit the "recommencement of mineral processing operations" at the mine, with the use of the land being for an "industrial" purpose. 2. Westlime's Background Paper in support of the 2012 modification application, dated March 2012, stated that ("the Background Paper"): 1. the modification was being sought to allow the recommencement of approved gold processing operations within the mine using mine infrastructure that was not currently being used. Specifically, the modification sought to permit the importation and processing of gold concentrate transported to the mine from mining operations elsewhere, including the Dargues Reef Gold Project. Permission for the following additional activities was therefore sought: 1. the transportation of gold concentrate by trucks to and from the mine; and 2. the construction and use of a new Tailings Storage Facility, namely, the Eastern Tailings Storage Facility, within the approved footprint of the Existing Tailings Storage Facility; 1. the scope of the 1998 consent as set out in the 1988 EIS permitted (at p 3): 2. Extraction of ore material from up to four open cuts. 3. processing of that material using an onsite processing plant comprising crushing and grinding, carbon-in-pulp and gold recovery circuits. 4. placement of waste rock into two waste rock emplacements. 5. placement of tailings into a tailings storage facility. 6. ancillary activities associated with the activities immediately referred to (at p 3). 7. Hargraves had operated the mine until its closure in 1996, after which the mine has been rehabilitated. The mine, including all land and infrastructure, was subsequently purchased by Westlime's predecessor, Western Red Quarries Pty Ltd and a development application for the Parkes Processing Centre had been prepared. That application sought approval for extractive industries and related processing operations, including use of the crushing and grinding components of the processing equipment from the mine to produce raw limestone materials sourced from a limestone mine sourced at Nelungaloo, located approximately 20km to the west of the mine, to produce a range of agricultural, industrial and civil engineering products (the 2001 processing facility consent); in 2009 an application was made by Westlime to modify the 1988 consent to permit extraction activities within the project site in an area outside the previously consented extraction areas. The material was to be processed and blended with material sourced from other locations at the Parkes Processing Centre. Accordingly, a new development consent was issued "superseding the original development consent" (the 2009 modification approval); 8. in 2011 Westlime was approached by Big Island Mining Pty Ltd ("BIM") with a proposal to recommence processing operations at the mine under the 2009 modification approval. An agreement was subsequently negotiated to permit BIM to lease a section of the mine and to use a section of the approved processing plant to treat up to 50,000 tonnes per year of gold concentrate imported from the Dargues Reef Gold Mine. That activity would require modification of the 2009 modification approval to permit importation of that material, for processing, as well as export of the tailings material should a market for that material be identified. Alternatively, the tailings material would be placed within a new storage facility located at the footprint of the approved Tailings Storage Facility; that the 1998 consent, the 2009 approval, and the 2001 processing facility consent applied to the mine; and that the London-Victoria Mine included the following approved components and activities under the 2009 modification approval (p 8): a mine development area which was developed into four open cuts, namely the Majors, London, Shaws and Victoria Pits. A processing plant, including a crushing and grinding circuit, Carbon-in-Pulp circuit and a gold recovery circuit. A process residue storage area (referred to hereafter as the Existing Tailings Storage Facility). Two overburden storage areas or emplacements. Associated infrastructure, including access roads, offices and maintenance and staff facilities 1. approved activities included the following (p 8): Mining of the open cuts using bulldozer ripping, following by excavator and front-end loader extraction, and drilling and blasting where required. Transportation of the overburden via haul truck to two out-of-pit overburden storage areas. In-pit placement was also approved to minimise haul distances contingent on not sterilising future reserves. Transportation of the ore via haul truck to ore stockpile adjacent to the processing plant. A processing plant operating 24 hours per day, seven days per week including crushing, screening, grinding and milling and treatment using a Carbon-in-Pulp (CIP) plant. Heap leach processing on specially prepared pad was also approved. 1. prior to the establishment of the Parkes Processing Centre, the processing plant comprised the following (p 11): A 50t capacity dump hopper and scalping screen. All ore to be processed was placed either directly into this hopper or reclaimed from run-off-mine (ROM) stockpile area. A 250 tonne per hour (tph) capacity primary jaw crusher, 400 tph impact crusher and two tertiary crushers (a 200tph barmac impact crusher and a 200tph cone crusher), together with associated screens and a radial stacker. A 1 500t capacity fine ore bin. A 10t capacity secondary hopper. A ball mill to wet grind the fine ore to a nominal 0.075mm. A series of process and reagent tanks in which the gold was extracted from the ground ore slurry using the Carbon-in-Pulp process. A gold room. A cyanide storage shed. 1. that the following modifications to the 2009 modification approval would be required, namely (pp 15 and 16): Condition 1 Undertake the development in accordance with 1. Development Application and associated Development Consent 379/88, including the accompanying Environmental Impact Statement prepared by BHP Engineering dated May 1988: 2. Development Application No DA08167 and the accompanying Statement of Environmental Effects prepared by RW Corkery & Co. Pty Limited dated December 2008; and 3. the following conditions. 4. Purpose - for the avoidance of doubt in relation to the application Development Consent 379/88. 5. Condition 23 6. Ore from other locations shall not be transported to the site on Council's public roads without prior consent of Council. 7. Material for processing may be transported to site via Hartigan Avenue, London Road and Blaxland Street at a maximum rate of 50 000t per year. 8. Condition 23A 9. Processed material may be transported from the site via Blaxland Street, London Road and Hartigan Avenue at a maximum rate of 50 000t per year. 10. in addition to the presently approved operations at the mine, Westlime proposed to undertake the following (p 17): Transportation of up to 50 000t material per year to the Project Site for processing. Transportation of up to 50 000t tailings from the Project Site per year for sale. Minor modifications to the CIP plant to permit material to be loaded directly rather than via the existing ball mill. Construction or upgrading of ancillary infrastructure, including: 1. a separate Tailings Storage Facility within the footprint of the approved facility; 2. a concentrate storage shed and loading facility; and 3. an access road. 4. although Westlime held Environment Protection Licence 11553 permitting land based extractive activity (50,000 – 100,000 tonnes obtained) and crushing, grinding or separating (100,000 – 500,000 tonnes processed), it did not permit "mineral processing" which was a scheduled activity under Schedule 1 of Protection of the Environment Operations Act 1997. As a result, a modification to that Licence, or a new licence, would be required. 1. A Statement of Environmental Effects was lodged in support on the 2012 modification application (dated May 2012) ("the 2012 SEE") prepared by Corkery. The 2012 SEE: 1. commenced by examining the scope of the 1988 consent, and observing that the consent permitted the following activities (p 3): 2. Extraction of ore material from up to four open cuts. 3. Processing of that material using an on-site processing plant comprising crushing and grinding, carbon-in-pulp and gold recovery circuits. 4. Placement of waste rock into two waste rock emplacements. 5. Placement of tailings into a Tailings Storage Facility. 6. Ancillary activities associated with the above. 7. noted that the 1988 consent, the 2009 modification approval and the 2001 processing facility consent applied to the land; 8. attached plans of the 1988 consent and the consent as modified in 2009; 9. noted that the modification was being sought to allow the recommencement of approved gold processing operations within the mine using the mine infrastructure that was not currently being used as part of the Parkes Processing Centre. Specifically, the modification sought to permit the importation and processing of gold concentrate, transported to the mine from mining operations elsewhere, including the Dargues Reef Gold Project; 10. summarised (at p 11) the composition of the processing plant prior to the establishment of the Parkes Processing Centre (in terms identical to the summary provided in the Background Paper at p 11); 11. summarised (at pp 15 and 16) the modifications that would be required to the 2009 approval (again in terms identical to those contained in the Background Paper at pp 15 and 16); 12. stated (at p 17, likewise in terms identical to those in the Background Paper at p 17) that in addition to the approved operations, Westlime proposed to undertake the following: 13. Transportation of up to 50 000t material per year to the Project Site for processing. Minor modifications to the carbon-in-pulp plant to permit material to be loaded directly rather than via the existing ball mill. 14. Transportation of up to 50 000t tailings from the Project Site per year for sale. 15. Construction or upgrading of ancillary infrastructure, including: 16. A separate Tailings Storage Facility within the footprint of the approved facility; 17. A separate evaporation pond within the footprint of the approved Tailings Storage Facility; 18. A Facilities Building, comprising an integrated concentrate storage area, gold room and equipment parking area; and 19. An ablutions facility and crib room. 20. stated in section 3.3.6 ("Rehabilitation, Final Land Form and Final Land Use") Westlime noted that the application for the 1998 consent identified that the rehabilitation activities would be undertaken in a manner that would permit the construction of a non-polluting final land form suitable for a final land use of agriculture. The Environmental Impact Statement prepared in support of the application for the 2001 processing facility consent identified that rehabilitation of the mine would seek to establish an "aesthetically pleasing and low maintenance site" for an as yet unidentified final land use. In order to achieve this, Westlime would: remove all buildings, plant and equipment and imported raw materials; remove or otherwise rehabilitate all on-site roads not required for future land management activities; remove compacted rock from hardstand areas; rip up all former hardstand and parking areas; profile the active face(s) of the Northern and/or Southern Overburden Emplacements and dump hopper ramps to maximum slopes of 1:3 (V:H); install appropriate water management structures to prevent erosion; and apply subsoil, topsoil and seed to the disturbed surfaces. 1. Accordingly, Westlime contended that the rehabilitation operations approved in the 2001 processing facility consent superseded those identified in the 1988 consent and as a result the proposed modification did not seek to modify the approved rehabilitation activities in the 2001 processing facility consent. Notwithstanding this, Westlime would nevertheless undertake to appropriately rehabilitate the Eastern Tailings Storage Facility and the Evaporation Pond; 2. stated that the 2009 modification approval, as modified, would not have an expiry date. As a result, no time frame for completion of rehabilitation operations had been determined. However, Westlime noted that an agreement between it and BIM was for a period of six years with an option to extend that agreement. As a result, Westlime anticipated that all rehabilitation activities within the area leased by BIM would be complete prior to the end of that agreement or any subsequent extension; 3. justified the proposal on the basis that there would be minimal impact upon the local environment and potential impacts identified had been assessed as being within accepted or specified criteria and/or meeting reasonable community expectations; 4. expressly referred to ss 96(1A), 96(2)(a) and 79(c) of the EPAA. Those sections were set out in full. In particular, section 7.1.3.3 addressed the issue of whether the consent as modified was substantially the same development as the development for which consent was originally granted pursuant to s 96(2)(a) of the EPAA. It stated that: The applicant contends that the proposed modification, if approved, would effectively remain "substantially the same development" for the following reasons: the proposed modification would involve the use of existing plant for the purpose of processing gold concentrate, using substantially the same methods as previously utilised at the London Victoria Mine. The proposed Eastern Tailings Storage Facility and Evaporation Pond would lie within the approved footprint of the tailings storage facility for the London Victoria Mine under Development Consent DA01867. As indicated in Section 6, the environmental impacts associated with the proposed modification are not considered to be greater than those associated with the existing approved impacts. 1. expressly listed as a reference the 1988 EIS. 1. On 23 May 2011, the legal representatives for the council, Pikes Lawyers ("Pikes"), advised the council that the 1988 consent, as modified, remained valid and in force and could be further modified subject to the council being satisfied as to all relevant matters contained in s 96(2) of the EPAA, including whether the development approved under the modified consent would be substantially the same as that "originally approved in 1988". The advice went on to conclude that: We note that in assessing whether the two proposals are substantially the same Council is required to undertake both a quantitative and qualitative assessment. This involves looking not only at the specific identified activities but also the external impacts and effects of the proposed developments. The transport of material to the site may give rise to impacts specifically sought to be avoided under the original consent and which may render the current proposal not substantially the same as that originally approved. We highlight this as only one possibility and note that we would be surprised if the transport of materials to the site would render the proposal not substantially the same as the earlier proposal which must have envisaged truck movements for removal of extractive material from the site. 1. However, at the time it gave the advice Pikes "did not have a copy of the original consent". 2. Notice was given of the 2012 modification application and objections were received. On 14 June 2012, therefore, AEI's mining titles consultant, Mr Russell Hetherington, submitted a letter of objection to the council with respect to the 2012 modification application. The four primary grounds of objection were that: first, the 1988 consent had been abandoned; second, that the development was not substantially the same development; third, there was objection to the description of the development being "recommencement and extension of" the mine; and fourth, that the legal right to conduct the development or activity subject to the 1988 consent was at an end and that a mining lease to permit the proposal was required. 3. In June 2012, Corkery prepared a Response to Submissions in relation to the 2012 modification application. The Response discussed at length the 2009 modification to the 1988 consent. It attached a letter of advice from Ashurst Lawyers ("Ashurst") dated 19 June 2012, refuting the proposition that the 1998 consent was exhausted and had ceased to exist. Ashurst identified the documents they were briefed with. That list did not include the 1988 EIS. 4. Officers of the council then prepared a report assessing the 2012 modification application. The report stated that: 1. the council had received an application to recommence the use of the mineral processing plant at the mine. Westlime proposed to transport ore from Dargues Reef Gold Project and to upgrade the existing processing facility at the mine; to construct a new Tailings Storage Facility within the approved footprint of the Existing Tailings Storage Facility; to transport pyrite concentrate from the mine; as well as the construction and use of ancillary infrastructure to facilitate the processing operations; 2. the site had been used since early this century, by Westlime, who used the site to process raw limestone materials to produce a range of agricultural, industrial and civil engineering products; 3. as part of the modification, Westlime proposed to construct some ancillary infrastructure (as described above including, a separate evaporation pond, a facilities building, parking and other facilities); 4. the original mine processed approximately 600,000 tonnes of ore material, whereas the proposed reuse of the facility intended to process only 50,000 tonnes per annum. The ore material being imported had a significantly higher gold content making production more profitable and the ore material proposed to be imported was also geologically different, resulting in longer processing time; 5. the council had legal advice in response to the Hetherington submission reinforcing its decision to properly accept the application as a s 96 modification application because the consent in question had never lapsed, nor was it suspended, and because the proposal appeared to be substantially the same development according to the Ashurst advice that was attached and was observed to be in conformity with the Pikes advice; 6. the proposal complied with the intent of s 96 of the EPAA and therefore it could be validly approved; and 7. in conclusion, the proposed modification involved the recommencement of the mining processing plant at the mine, the modification sought to import no more than 50,000 tonnes of ore to the existing site for processing and would not impact on Westlime's agricultural and construction materials processing. Conditions were recommended including requiring Westlime to monitor the activities being undertaken on the site in the surrounding environment and provide such monitoring details to the approved authorities. 1. Attached to the report were the 2012 SEE and the Response to Submissions prepared by Corkery. 2. The report recommended approval of the application subject to the following conditions: Conditions Approved Plans Undertake the development in accordance with: Development Application and associated Development Consent 379/88 including an The Environmental Impact Statement prepared by BHO engineering and dated 1988; Development Application DA08167 and accompanying Statement of Environmental Effects, prepared by R.W.Corkery & Co Pty Limited dated December 2008 and May 2012; and The following conditions: … Annual Reporting The applicant shall: 18. Prepare and submit, to the Council and to the Director Planning and Environment (hereinafter called "the Director"), in a form acceptable to the Director, an annual report in respect of performance of the development, the annual report shall be prepared for each period ending 31st December, and shall be submitted by 31st March of the following year, during the life of development. Further, the applicant shall, prior to the commencement of the construction of the development, initiate discussions with the Director, or his nominee, in order to determine the appropriate form of such report; and … General 23. Deleted 1. Condition 23 was the equivalent of condition 5.1 in the 1988 consent. 2. On 7 August 2012, the council determined to modify the 1988 consent and issue the 2012 modification approval, subject to the following conditions ("the 2012 modification approval"): Conditions: Approved Plans 1. Undertake the development in accordance with: • Development Application and associated Development Consent 379/88 including an the Environmental Impact Statement prepared by BHP engineering and dated 1988; Determination: The development application has been determined by granting of consent pursuant to Section 80 of the Environmental Planning and Assessment Act, 1979 of 21 June 1988 and now modified pursuant to Section 96 of the said Act, subject to the conditions specified in this notice. These conditions replace the original conditions specified in Development Consent No DA379/88. … 14. Provide Council with staged rehabilitation plans for areas disturbed under the modification prepared by RW Corkery & Co Pty Ltd. 15. Appropriate mine closure measures, including the submission of a Mine Closure Plan to Council, shall be put into place prior to the closure of the mine. … General 23. Deleted Issues for Determination 1. This proceeding challenges the validity of the 2009 and 2012 modification approvals on four substantive grounds. 2. By agreement between the parties, the issues for determination by the Court are: 1. first, whether the 1988 consent was exhausted or spent such that it could not be modified pursuant to s 96 of the EPAA as at 21 April 2009 (the 2009 approval). AEI argued that upon the land being declared to be rehabilitated and the bond released, the carrying out of development in accordance with the 1988 consent was complete, and therefore, the 1988 consent could not be modified in 2009 (ground one of the points of claim); 2. second, whether the council erred in law in granting the 2012 modification approval because in doing so it failed to have regard to the 1988 consent for the purposes of s 96(2) of the EPAA (ground two of the points of claim); 3. third, whether s 96(2) of the EPAA, empowering the council to grant the modification approvals, gives rise to a jurisdictional fact that the development to which the consent as modified relates, is in fact substantially the same as the development the subject of the consent originally granted. If the answer is "yes", whether, in respect of the 2012 modification approval, the development to which the consent as modified relates is substantially the same as the development for which consent was originally granted in the 1988 consent (ground three of the points of claim); 4. fourth, whether the council's decision to issue the 2012 modification approval was manifestly unreasonable insofar as no reasonable consent authority acting reasonably could have concluded that the development as modified by the 2009 modification approval and the 2012 modification approval, was substantially the same as the 1988 consent, as required by s 96(2) of the EPAA (ground four of the points of claim); and 5. fifth, if the council's decision to grant either the 2009 or the 2012 modification approvals was infected with error, whether the grant of relief sought in the amended summons is appropriate, and in particular, whether an order setting aside and/or restraining Westlime from acting upon or pursuant to the 2009 and 2012 modification approvals should be made. Legislative Framework Governing the Proceeding 1. Section 76A(1) of the EPAA governs the carrying out of development and states as follows (emphasis added): 76A Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless: (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. 1. Section 91 of the EPAA (as it stood at the time the 1988 consent was determined) was relevantly in these terms (emphasis added): Determination of development application 91. (1) A development application shall be determined by – (a) the granting of consent to that application, either unconditionally or subject to conditions; or (b) the refusing of consent to that application. ... (3) A condition may be imposed for the purposes of subsection (1) if it – (a) relates to any matter referred to in section 90 (1) of relevance to the development the subject of the consent; (b) requires the modification or surrender of a consent granted under this Act or a right conferred by Division 2 in relation to the land to which the development application relates; (c) requires the modification or cessation of development (including the removal of buildings and works used in connection with that development) carried out on land (whether or not being land to which the development application relates); (d) limits the period during which development may be carried out in accordance with the consent so granted; (e) requires the removal of buildings and works (or any part thereof) at the expiration of the period referred to in paragraph (d); (f) requires the carrying out of works (whether or not being works on land to which the application relates) relating to any matter referred to in section 90 (1) applicable to the development the subject of the consent; (g) modifies details of the development the subject of the development application; or (h) is authorised to be imposed under section 94. 1. The power to modify development consents is contained in s 96(2) of the EPAA and relevantly provides that: 96 Modification of consents-generally (2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if: (a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and (b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and 1. Section 109B of the EPAA relevantly states: 109B Saving of effect of existing consents (1) Nothing in an environmental planning instrument prohibits, or requires a further development consent to authorise, the carrying out of development in accordance with a consent that has been granted and is in force. (2) This section: (a) applies to consents lawfully granted before or after the commencement of this Act, and (b) does not prevent the lapsing, revocation or modification, in accordance with this Act, of a consent, and (c) has effect despite anything to the contrary in section 107 or 109. 1. As at the date of the 1988 consent, Interim Development Order No1 – Municipality of Parkes ("IDO 1") applied to the land. Under IDO 1 both a "mine" and an "extractive industry" were permissible uses of the land with consent. 2. As at the date of the 2009 modification approval, development for the purposes of an extractive industry was permissible. The land was zoned Rural 1A under the Parkes Local Environmental Plan 1990 ("the 1990 LEP"). As with IDO 1, a "mine" and "extractive industry" were permissible with consent. 3. The land is currently zoned RU1 - Primary Production under the Parkes Local Environment Plan 2012 ("the 2012 LEP"), which came into operation on 7 December 2012. Under the 2012 LEP, development for the purposes of a "mine" is permissible with consent. 4. The Environmental Planning and Assessment Model Provisions 1970 ("the 1970 Model Provisions") defined the terms "extractive industry", "extractive material" and "mine", respectively to mean: Extractive industry means an industry or undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on. Extractive material means sand, gravel, clay, turf, soil, rock, stone and similar substances. Mine means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place adjoining on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry. 1. The identical terms in the Environmental Planning and Assessment Model Provisions 1980 are defined as: extractive industry means: 1. the winning of extractive material, or 2. an undertaking, not being a mine, which depends for its operations on the winning of extractive material from the land upon which it is carried on, and includes any washing, crushing, grinding, milling or separating into different sizes of that extractive material on that land extractive material means sand, gravel, clay, turf, soil, rock, stone or similar substances. Mine means any place, open cut, shaft, tunnel, pit, drive, level or other excavation, drift, gutter, lead, vein, lode or reef whereon, wherein or whereby any operation is carried on for or in connection with the purpose of obtaining any metal or mineral by any mode or method, and any place on which any product of the mine is stacked, stored, crushed or otherwise treated, but does not include a quarry. 1. In the 1990 LEP "extractive material" means "sand, gravel, clay, turf, soil rock, stone or any similar substance, but does not include any pure metal or any substance extracted for the purpose of refinement to obtain a metal or mineral". 2. The Environmental Planning and Assessment Model Provisions 1980 ("the 1980 Model Provisions") were "except for the definitions of extractive material", adopted for the purpose of the 1990 LEP (cl 6(1) of that LEP). 3. In the 2012 LEP the terms "extractive industry", "extractive material" and "mine" mean: extractive industry means the winning or removal of extractive materials (otherwise than from a mine) by methods such as excavating, dredging, tunnelling or quarrying, including the storing, stockpiling or processing of extractive materials by methods such as recycling, washing, crushing, sawing or separating, but does not include turf farming. extractive material means sand, soil, gravel, rock or similar substances that are not minerals within the meaning of the Mining Act 1992. mine means any place (including any excavation) where an operation is carried on for mining of any mineral by any method and any place on which any mining related work is carried out, but does not include a place used only for extractive industry. Evidence of the Parties 1. AEI relied on the evidence of Mr Hetherington and Mr Brian Loche. Mr Russell Hetherington is the director of Hetherington Expiration & Mining Title Services Pty Ltd ("Hetherington"). Mr Loche is a director and AEI. 2. In his affidavit, sworn on 28 April 2014, Mr Loche stated that: 1. he was not aware of the terms of the 2009 modification approval until that document was provided to his lawyers by the council's lawyers sometime in or around December 2013 or January 2014; 2. furthermore, he did not become aware of the proposed reactivation of the mine until he read a public announcement concerning it by the mining company Cortona. It was following that publication that he instructed Mr Hetherington of Hetherington to prepare a submission in relation to the 2008 modification application; 3. AEI is the holder of EL 7242. EL 7242 covers the whole of the area of the mine; 4. since obtaining EL 7242, AEI has: 1. flown over the mine pit to assess the gold in the mine pit; 2. engaged geologists to assess the mineralisation within the mine; 3. analyse previous drill holes; 4. made attempts to enter into an access agreement with Westlime to explore the ground of the mine; and 5. prepared documentation for the purpose of making an application for an assessment lease; 1. based on the annual reports in respect of EL 7242, AEI had spent $438,740 on that licence; 2. he expects that by digging an additional 20 metres into the open pit of the mine, mineral extraction of $18 million profit is achievable and that at the time of swearing his affidavit, that there was over $185 million of gold within the mine. This figure did not include any gold that may reside in the tailings dam and overburden from previous mining operations. 1. Mr Loche was cross-examined by counsel for both Westlime and the council. The cross-examination revealed that: 1. only a very small portion of the $438,740 was spent in relation to on ground exploration or in field exploration on Westlime's land (T26.30); 2. AEI has not actually carried out any drilling itself on the land (T28.45–29.05); 3. as at June 2011 Hetherington was engaged on AEI's behalf to make enquires of the council in relation to Westlime's planning approvals. In this respect, Hetherington acted as AEI's agent (T30.40); 4. no mining lease application has been lodged over the land covered by EL 7242 (T36.05); 5. the application to renew EL 7242 had not yet been determined (T37.25); 6. the amount of funds that AEI had allocated for on the ground drilling had been wholly consumed by the litigation (T37.85); 7. AEI had not applied to have the dispute arbitrated under the Mining Act (T38.05); 8. the land access agreement sent to Westlime by AEI was nothing more than the standard form template for a land access agreement suitable for agriculture (T40.30); 9. AEI did not respond to or engage with Westlime's requirements issued in January 2012 in respect of land access (T42.10); 10. AEI was "obviously … a long way from actually mining this stuff" (T43.11); 11. AEI has not signed any contracts for drilling on Westlime's land (T44.25); 12. AEI had not analysed the tailings and the overburden, and therefore, it was not in a position to comment whether or not it has any gold content (T50.24); 13. Mr Loche expected to be kept informed of any planning approvals Mr Hetherington became aware of, including a copy of the 2009 modification approval that Mr Hetherington obtained in June 2011 (T53.10); and 14. EL 7242 had currently expired but was the subject of a further late renewal. However, it was the relevant Department's intention to refuse the application (T55.43). 1. In his affidavit sworn 30 April 2014, Mr Hetherington deposed to the following facts: 1. that Hetherington had been assisting AEI in respect of its exploration activities since at least 2008 and was involved in it obtaining EL 7242; 2. it was not until 6 June 2011 that he became aware, pursuant to an email sent from the council on that date, of the 2009 modification approval; and 3. sometime in about May or June 2012 he became aware of the 2012 modification application, in respect of which he made a submission on behalf of AEI. 1. The council relied on an affidavit of Mr Joshua Palmer, affirmed 20 December 2013. Mr Palmer is a solicitor instructed by the council. Having reviewed in detail the council's file relating to the development consents and modifications the subject of these proceedings he gave the following evidence: 1. that in his review of the council's files he had not found a copy of the entire EIS. The council had confirmed that it did not hold a full copy of the 1988 EIS; 2. EL 7242 was due to expire on 7 November 2013; 3. on 17 December 2008 the council notified adjoining land owners and relevant Government agencies, by letter, that the 2008 modification application had been lodged. Furthermore, on that date the council commissioned The Parkes Champion Post to publish notification of the 2008 modification application; 4. between 15 May and 23 May 2012, the council notified relevant land owners and Government departments of the lodgement of the 2012 modification application. On 15 May 2012 the council commissioned publication of the notice of the 2012 modification application in The Parkes Champion Post; 5. on 14 June 2012 Hetherington wrote to the council on behalf of AEI objecting to the 2012 modification application; 6. on 8 August 2012 the council wrote to Hetherington notifying it of the 2012 modification approval; and 7. the council published notice of the 2012 modification approval in The Parkes Champion Post on Friday, 10 August 2012. 1. Mr Palmer was cross-examined. The cross-examination revealed that he did not seek to obtain a copy of the 1988 EIS from Corkery (T63.45). 2. Mr Andrew Commins, the General Manager of Westlime, swore an affidavit on 7 May 2013. In his affidavit, after detailing the history of Westlime and its current operations, Mr Commins went onto depose that Westlime's road base production is dependent on the 2009 modification approval. In short, Westlime extracts hard rock at the mine before processing the hard rock at the Parkes Processing Centre in order to create road based products of particular grades and qualities. The hard rock used to create all of Westlime's road based products is extracted from the London and Shaw pits at the mine. 3. According to Mr Commins, the extraction of rock from the pits is authorised by condition 5.2 of the 1998 consent, as modified. He noted that condition 5.2 was not contained within the original 1988 consent but was inserted as a consequence of the 2009 modification approval. 4. One of the road based products produced by Westlime is a grade of road base that is a very high quality product designed to meet the Roads and Maritime Services' specifications in order to be designated as such. Westlime is one of a small number of suppliers of this high quality road base. Westlime is the contracted road base supplier to the council. It also supplies road base to Forbes Shire Council, Orange City Council, NSW Roads and Maritime Service, and other private business. Road based production is a main component of Westlime's business and occurs year round. It comprises approximately 56% of Westlime's annual revenue. The high quality road base is Westlime's bestselling product. 5. He further stated that Westlime also extracts limestone from another pit which is then delivered by truck to the Parkes Processing Centre for the production of agricultural limestone products. Given its agricultural use, Westlime produces limestone seasonally. 6. Westlime's products are delivered by Westlime trucks, as well as independent trucking contractors to customers. 7. Mr Commins deposed that if the 2009 modification approval was invalidated then: 1. Westlime would be unable to extract and process hard rock from the pits at the mines; 2. Westlime would be unable to produce road based products generally, including the high quality road base; 3. Westlime would suffer a significant impact on its sales revenue due to the loss of revenue on road base sales; 4. Westlime's trucking contractors would be significantly financially impacted by the termination of Westlime's road based deliveries; 5. Westlime would have to rely solely on its revenue from agricultural lime production for its financial viability. In addition to the fact that this product is seasonal, sales from lime production for agriculture are also vulnerable to drought conditions, as demand for limestone fertiliser products drops significantly during periods of drought; 6. Westlime would have to retrench between 10 and 12 employees; and 7. Westlime's ongoing operations would no longer be financially viable. 1. He stated that Westlime had acted in reliance on the 2009 modification approval for approximately the last four years. 2. Finally, he deposed that since 2011 AEI had corresponded with Westlime in order to enter into a land access agreement for mineral expiration at the mine. To date, however, no such agreement has been entered into. 3. Mr Commins was not required for cross-examination. Was the 2009 Approval Invalid Because the 1988 Consent Was Spent? 1. AEI conceded that the 1988 consent was neither abandoned, nor surrendered, and that it had not lapsed. Rather, the issue was framed as whether, as a matter of interpretation, and having regard to ss 76A(1) and 96(2) of the EPAA, the 1988 consent had reached the end of its life, and therefore, could not authorise the "carrying out" of any development, and hence, could not be the subject of a modification application. 2. In essence, the submissions of AEI were two-fold: 1. first, that the 1988 consent was for the "operation of an open cut gold mine and ore treatment plant to extract gold" subject to conditions. Those conditions (in particular, conditions 3.7, 3.14, 3.16 and 4.4) made it clear, as a matter of construction, that the consent was for a limited period of time, namely, "the life" of the mine, which in turn was limited by the activities carried out at the mine itself, such activities having ceased prior to the 2009 modification approval; and 2. second, because the 1988 consent only authorised the carrying out of development for the life of the mine, after the mine had ceased no person could "act on" (using the language of s 96(2) of the EPAA) the consent because there was nothing left to be "carried out in accordance with the consent" (using the language of s 76A(1)(b)). The Principles of Construction of Development Consents 1. The principles of construction of development consents are well known and may be summarised as follows: 1. consents are to be construed, "not as documents drafted with legal expertise, but to achieve practical results" (Westfield Management Ltd v Perpetual Trustee Company [2006] NSWCA 245 at [36] per Hodgson JA, Baulkham Hills Shire Council v Ko veda Holiday Park Estate Ltd [2009] NSWCA 160; (2009) 167 LGERA 395 at [96]–[100] and Botany Bay City Council v Saab Corp Pty Ltd [2011] NSWCA 308; (2011) 183 LGERA 228 at [80])); 2. consents are to be construed fairly and liberally, with the meaning of their text to be determined objectively, having regard to the context in which the consent was issued, and taking into account the fact that, unlike a contract, a consent operates in rem and is for the benefit of subsequent owners and occupiers, as well as for the applicant (House of Peace Pty Ltd v Bankstown City Council [2000] NSWCA 44; (2000) 48 NSWLR 498 at [23] and [37]–[41] per Mason P, Stein and Giles JJA agreeing and K and M Prodanovski Pty Ltd v Wollongong City Council [2013] NSWCA 202; (2013) 195 LGERA 23 at [23] per Meagher JA); 3. as a general rule, a development consent should be construed without reference to extrinsic evidence other than to identify a thing or place referred to in it (Sydney Serviced Apartments Pty Ltd v North Sydney Municipal Council (No 2) (1993) 78 LGERA 404 at 407, Allandale Blue Metal Pty Ltd v Road and Maritime Services [2013] NSWCA 103; (2013) 195 LGERA 182 at [42] and Bardsley-Smith Penrith City Council [2013] NSWCA 200; (2013) 195 LGERA 34 at [66]); 4. plans and other documents may be incorporated in a development consent expressly or by necessary implication (Allendale at [24], [43]–[48] and [153]–[163] and Bardsley-Smith at [66]); 5. a mere reference in a development consent to another document, such as a development application, will not usually be sufficient to incorporate that document into the consent (Allandale at [45], [157]–[158] and Bardsley-Smith at [67]). However, if a development consent expressly incorporates another document, or part of it, or if a document is attached to a development consents or referred to in it for the purpose of identifying or describing something dealt with in the consent, this will generally be sufficient for the purposes of incorporation (Auburn Municipal Council v Szabo (1971) 67 LGRA 427 at 434, Allandale at [45] and Bardsley-Smith at [67]); and 6. the words of a development consent have the meaning that the consent authority is objectively taken to have intended them to have. Ordinarily that meaning will correspond to the grammatical meaning, but not always. The context of the words, the consequences of a literal or grammatical construction (such as absurdity or inconsistency), the purpose of the development consent, and orthodox cannons of construction may require an alternative interpretation (Reysson Pty Ltd v Roads and Maritime Services [2012] NSWLEC 17; (2012) 188 LGERA 252; at [28] per Biscoe J). The 2009 Modification Approval is Valid 1. In my view, AEI's submissions cannot be accepted. My reasons are as follows. First, as a matter of construction, no specific end date was imposed by the conditions attached to the 1988 consent on the processing of gold ore under the consent, or for that matter, the operation of the open cut gold mine. Applying the principles of interpretation discussed above, it is plain that, in addition to granting consent for an open cut gold mine, the 1988 consent approved the operation of an ore treatment plant to extract gold on the land which was not limited to the processing of gold actually mined from the land. Therefore, even if the mine had ceased to yield gold, it was not correct to contend, as AEI does, that the 1988 consent was spent or exhausted as at 2009, such processing operations were able to continue into the future. This is a complete answer to the first ground of review. 2. This was evident not only from the terms of the 1988 EIS and the original development application as incorporated into the 1988 consent, but also as a stand-alone document from the terms of the 1988 consent itself. 3. Having said this, because all parties agreed that the 1988 EIS was incorporated into the 1988 consent (this was manifest in Westlime's written and oral submissions and was accepted by the council in oral argument: T161.01) I was not asked to determine this issue. Had I been called upon to do so, it is not certain absent full argument, in conformity with the authorities in Allendale and Bardsley-Smith, that I would have reached the same conclusion as that of the parties. For the purpose of this ground, however, result is nevertheless the same. 4. It is true that conditions 2.1, 3.5, 3.14 and 4.4 of the 1988 consent all required things to be attended to at the end of the life of the mine or development or during the operation of the mine, but these conditions are not, of themselves, inconsistent with the processing of ore occurring from time to time into the future. Put another way, conditions referring to "the end of the mine life", "the end of the development", or "the end of the project", are consistent with the objective contemplation of future mining and processing activity at the site, with no necessity that such activity be continuous or uninterrupted. 5. At their absolute highest, these conditions placed a vague and inchoate temporal limitation on the development but not a temporal limitation on the development consent granted in 1988 (Kendall Street Development Pty Ltd v Bryon Shire Council (No 2) [2004] NSWLEC 530; (2004) 138 LGERA 360 per Lloyd J at [16] quoted below). 6. And notwithstanding that there were various (and conflicting) statements in the 1988 EIS (which was required because the development was designated development) and 1988 Summary EIS as to the life of the mine, or the project life, these were no more than estimates. The 1988 EIS did not identify with any specificity the temporal or spatial (that is to say, volumetric) limits of the proposed open cut mine operation (again, noting that the open cut mine was only part of the development for which consent was sought). To the contrary, the processing operation was specifically and repeatedly stated as potentially continuing into the future if other reserves or off site ore could be found. In this regard, condition 5.1 of the 1988 consent expressly foreshadowed the seeking of council's approval if use of its public roads was involved to transport ore to and from the mine from elsewhere. 7. AEI cannot demonstrate that there was no further development to be carried out within the terms of the 1988 consent. As the council contended, just as AEI urged upon the Court a finding that the mine had ceased to operate and the ore treatment and processing plant had suspended its operation because the approved development activity was exhausted, it is equally plausible that this cessation and suspension was the product of the user's inability to continue with the development activity (for example, by reason of Hargraves' liquidation, or due to uncertainty surrounding the financial viability of the project due to a drop in the gold price). AEI's position ignores the ability of a person entitled to act upon the consent to resume doing so at any time, or, as in this case, to apply to modify that consent. 8. Also contrary to AEI's submission that the consent has ceased is the fact that as at the date of the 2009 modification approval there were active conditions. In particular, condition 4.4 had not been complied with and the pipeline ownership had not been transferred. In addition, the Parkes Processing Centre remained on site. 9. Further reinforcing the conclusion that the 1988 consent is not limited in time in the manner asserted by AEI is the fact that, as the council submitted, as at the date of the determination of the 1988 consent, s 91(3)(d) of the EPAA (as it then was) expressly provided for the imposition of a time limit on the period during which development could be carried out in accordance with a consent, and the council deliberately did not exercise this power. 10. The fact that ML 1215 had been cancelled and the bond returned pursuant to that cancellation is, in my view, irrelevant. Not only was that mining lease granted subsequent to the 1988 consent, it was a wholly separate instrument issued under a wholly separate legislative regime (the Mining Act) (Williams v Minister for Planning [2009] NSWLEC 5; (2009) 164 LGERA 204 at [47]–[50]). 11. AEI placed considerable reliance in support of its position on Winns v Director-General National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508. In my opinion, however, that decision is distinguishable on its facts and does not assist AEI. 12. In Winns at issue was a condition which stated that "the Registered Holder shall mine the subject area only once, unless with the consent in writing of the Minister for Mines and the Board first had and obtained and subject to any conditions they may stipulate" (emphasis added). The Court held as a matter of construction that the words "only one" prohibited all forms of re-mining, including deep mining, absent the requisite approvals, but that if the relevant approval were obtained mining more than once was permissible (at [7]–[8] per Spigelman CJ). 13. In the present case, neither emphatic words of limitation such as "only once", nor any necessity to obtain further approval for future mining activities (other than condition 5.1), may be found in the consent. Phrases such as "the life of the mine" or "the life of the project" are not comparable. 14. AEI also drew support from the decision of Biscoe J in Currency Corporation Pty Limited v Wyong Shire Council [2006] NSWLEC 692; (2006) 155 LGERA 320 where his Honour held that s 109B of the EPAA did not apply to the applicant's claims to have existing use rights for an existing residential flat building thereby taking the development outside the definition of existing use rights in s 106(a) of the EPAA. At [34]–[36] Biscoe J opined as follows: 34 The third reason why s 109B is inapplicable, in my view, is because there is nothing left to be "carried out" in accordance with the 1974 approval (assuming it to be a "consent"). The distinction between continuing a use (such as the use of a residential flat building) and carrying out a development was recently recognised by the Full Court of the Supreme Court of Tasmania in Calvary Health Care Tasmania Inc v Hobart City Council [2006] TASSC 10; (2006) 144 LGERA 107 at 113 - 114 [15] citing Nancy Shetland Pty Ltd v Melbourne and Metropolitan Board of Works (1974) 48 ALJR 448, 34 LGRA 151. The distinction was also recognised in Hillpalm Pty Ltd v Heaven's Door Pty Ltd [2004] HCA 59; (2004) 220 CLR 472 at 483 [24] in the joint judgment of McHugh ACJ, Hayne and Heydon JJ: No doubt, as counsel for the respondent pointed out, 'development', as used in the EPAA, could refer to the subdivision of land, the use of land or to both subdivision and use. It by no means follows, however, that a person occupying a lot in a plan of subdivision carries a development out on the land by simply occupying the land. Where, as here, the subdivision of the land was the relevant development, the subsequent purchaser of a subdivided lot does not 'carry that development out' by occupying, and thus using, one of the lots in the subdivision. 35 In context, I consider that the words "carrying out a development" in s 109B refer to an activity, permitted by a consent in force, which has not yet occurred. The example given in the Explanatory Note to s 109B in the 1992 Act which introduced it was that: "The amendment would apply to make it clear that a person who had obtained development consent for mining the whole of a parcel of land and had commenced mining part of the parcel would not be prevented from mining the rest of the parcel by an environmental planning instrument that came into effect before mining of the rest of the parcel had commenced, and that prohibited or made a new requirement for development consent to authorise the mining of the rest of the parcel". That example is far removed from, and suggests that s 109B is irrelevant to, the facts of the present case. 36 The development the subject of the 1974 approval ceased to be "carried out" in 1975 when the strata plan endorsed with the certificate of approval was registered and the associated works finalised. That "development" was exhausted at that time. Thereafter there was nothing left to be "carried out". The 1974 approval assumed the underlying use of the residential flat building, rather than constituting a consent to it. 1. Thus, AEI submitted, just as s 109B cannot apply to development that has already been carried out, neither can s 96(2) modify a consent granted under s 76A of the EPAA that has similarly already been carried out. 2. But the difficulty with this analogy is that the 1988 consent is for the "operation" of both an open cut gold mine and processing. In my opinion, the term "operation" denotes an activity and not a singular event, such as the registration of a plan of subdivision as was the case in Currency Corporation. That case does not stand for the proposition that a development consent ceases for the purpose of either ss 96 or 109 of the EPAA merely because the building is constructed, the mining has ceased or the processing of ore has been halted. 3. On a proper construction of the 1988 consent, therefore, neither it, nor any development authorised by it, were limited in time. 4. Second, the concept of a development consent being spent or exhausted is, as both Westlime and the council correctly submitted, not a concept known to law and is contrary to existing authority. In Boral Resources (Country) Pty Ltd v Clarence Valley Council & Avard; Cemex Australia Pty Ltd v Clarence Valley Council & Avard [2009] NSWLEC 81; (2009) 167 LGERA 134 Pain J stated as follows (at [105]–[106]): 105 Cemex argued that the 1978 consent was spent and could not therefore be the subject of an application for alterations and additions such as the September 2007 application. The concept of a consent being "spent" I do not consider arises under the EP&A Act once a development consent has been substantially commenced. The 1978 consent was granted under the Local Government Act 1919 and there is no issue raised suggesting that it could not continue with the passage of the EPA Act in 1979. The authorities relied on by Cemex are Pioneer Aggregates, a House of Lords decision that was referred to in Nehme in the Court of Appeal by Handley JA (Meagher and Beazley JJA concurring). In Nehme the issue was whether there had been abandonment of existing use rights, a quite different circumstance to this case. Handley JA held that a consent could not be extinguished by abandonment at [24]. He cited Pioneer Aggregates in support of this finding at [22]. This aspect of the case does not support the submission of Cemex that the 1978 development consent was spent and could not be relied upon by the Second Respondent as the basis for the September 2007 application. Handley J in Nehme otherwise held that a consent could not be extended beyond the life of the planning instrument it was granted under. In this case the 1978 consent was granted under the Local Government Act 1913 and continued to operate after the EP&A Act came into force in 1979. Nehme is not addressing that circumstance. The fact that the legislative regime changed, with appropriate transitional provisions, does not result in extinguishment or abandonment of that consent. 106 Further, the fact that an application for what would have been building approval under the Local Government Act 1913 as stated in condition 3 of the 1978 consent must now be sought under the EP&A Act does not change the status of the 1978 development consent. It is simply the case that a different statutory mechanism is required in order to give effect to condition 3. While Cemex has also relied on an alleged non compliance with condition 4 of the 1978 consent in relation to the previously constructed wetlands I do not consider that submission has any relevance to the argument of whether that consent is spent. 1. I respectfully endorse her Honour's comments. They are both apposite and applicable to the present case. 2. Third, even if the 1988 consent was limited in the manner contended for by AEI, it nevertheless remained a development consent within the meaning of s 96(2) of the EPAA and was amenable to an exercise of the power conferred by that section. It is a trite proposition that a condition can be modified even if it is in breach at the relevant time (Windy Dropdown Pty Ltd v Warringah Council (2000) 111 LGERA 299 at 440–441). No authority to the contrary was proffered by AEI. 3. Fourth, AEI misconceives the class of person entitled to apply under s 96 of the EPAA for modification of a development consent. AEI submitted that Westlime was not a person eligible to lodge the 2008 modification application because it was not "any other person entitled to act upon the consent" within the meaning of s 96(2) of the EPAA. 4. Westlime objected to this argument being raised for the first time in oral argument on the basis that it had not been pleaded. But in my view, the submission ought to be properly characterised as no more than a reformulation of its principal contention that the council had no power to grant the 2009 modification approval because the 1988 consent having been exhausted, could not be acted upon by Westlime, and accordingly, Westlime was not a person entitled to act upon the consent. 5. I agree with the submission of Westlime that the phrase "any other person entitled to act upon the consent" are words of limitation that restrict not the class of consents which s 96(2) may modify (those proscriptions are found in sub-paragraphs (a) to (d)), rather they circumscribe the class of persons who may apply for modification by excluding third parties to the consent, and the land to which the consent attaches. Were AEI's submission to be understood in any other way, absurdity would result. Two illustrations, usefully provided by Westlime, suffice. First, AEI's construction would have the consequence that, irrespective of the reason, whenever a consent could not be implemented without breach (that is to say, it could not be "carried out" pursuant to s 76A(1) of the EPAA) of its conditions, it could never be the subject of a s 96 modification application. Second, where a consent had no present operation (likewise where it could not be "carried out") because of an unsatisfied deferred commencement condition (see s 80(3) of the EPAA) or a pending appeal under s 98 of the EPAA (see s 83), it would not be amenable to a modification application under s 96(2) because no person would be entitled to act on the consent. 6. Neither outcome can be justified by the text, subject-matter, scope and purpose of this beneficial and facultative provision (Coalcliff v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 at [84] per Stein JA). 7. Finally, AEI's submissions are contrary to current case law. In Kendall Street Development the argument was rejected by Lloyd J (at [15]–[18]): 15 In Kendall Street Developments Pty Limited v Byron Shire Council [2004] NSWLEC 227, I held that the events specified in condition D2 had been fulfilled by 17 March 1998, requiring the development to cease. In particular, I considered whether the condition made under the provisions to which I have referred placed a temporal limitation on the development, or alternatively, on the consent (at par [13]):Moreover, a court will strive to give effect to the words used rather than strike down a clause or condition. Accordingly, if necessary to give effect to the condition, I am prepared to read it in the way that the Act allows. The condition obviously requires that the development which is the subject of the consent must cease upon the happening of the particular event. This is what is clearly intended by the condition. A reading of the condition in this way does not, however, assist the applicant. The effect is the same as if the development consent were to cease. If the condition requires the development which is the subject of the consent to cease, then the continued carrying out of that development is unlawful and thus outside the definition of existing use. 16 Accordingly, condition D2 places a temporal limitation on the development, but upon a proper construction of the EP&A Act, does not impose such a limitation on the development consent. In my earlier decision, it had the same practical effect as if the development consent were to cease, but not the same legal effect. The continued carrying out of the development constituted an unlawful use, but the development consent continued to exist. Can condition D2 be the subject of a modification application? 17 In these circumstances, I turn to consider whether the applicant can apply to the council for modification of condition D2 of the consent. In Windy Dropdown Pty Ltd v Warringah Council [2000] NSWLEC 240; (2000) 111 LGERA 299, Talbot J held that a modification application could be made under s 96 which related to development that had already been carried out in its modified form, even where such development contravened the conditions of the development consent. In coming to that conclusion, his Honour noted (at 304) that the development consent, and not the development, is the subject of an application for modification under s 96. In Willoughby City Council v Dasco Design [2000] NSWLEC 257; (2000) 111 LGERA 422 Bignold J followed this decision in holding (at 440-441) that it was legally possible for a council to grant approval to a modification application where the modification related to works that had already been carried out in breach of the Act. 18 Considerations of judicial comity and certainty in the law compel me to follow decisions of other judges in the same jurisdiction (Michael Realty Pty Ltd v Carr [1975] 2 NSWLR 812 at 820; La Macchia v Minister for Primary Industries & Energy (1992) 110 ALR 201 at 204; Pancho Properties Pty Ltd v Wingecarribee Shire Council [1999] NSWLEC 245; (1999) 110 LGERA 352 at 369-370; Q & R Developments Pty Ltd v Sutherland Shire Council [2001] NSWLEC 250; (2001) 117 LGERA 438 at 443). Since the development consent continues to exist in the current circumstances, it follows that the development consent may be the subject of an application for modification, notwithstanding that the development itself has become unlawful. It also follows from the continuing operation of the development consent, that the applicant is entitled to act upon the consent in applying for modification of condition D2 of the development consent. 1. Further, they are inconsistent with authority such as Willoughby v Dasco Design (2000) 111 LGERA 422, where the Court held that a development consent can be modified after the development has been carried out (at [106]), and Swadling v Sutherland Shire Council (1994) 82 LGERA 431 and Australand Holdings Ltd v Hornsby Shire Council (1998) 98 LGERA 312, where the Court determined that a s 102 or s 96 application can be made even where a consent cannot be acted upon. 2. This ground of review must therefore be dismissed with the consequence that the 1988 consent continues to operate, as validly modified by the 2009 modification approval. Did the Council Have Regard to the 1988 Consent When Determining the 2012 Modification Approval? 1. This ground of review only applies to the 2012 modification approval and not to the 2009 modification approval. 2. In short, AEI submitted that in approving the 2012 modification application the council failed to have regard to the 1988 consent in order to determine whether the development, as proposed in the 2012 application, was "substantially the same development as the development for which consent was originally granted and before that consent was as originally granted was modified (if at all)" (s 96(2)(a) of the EPAA). Rather, it was contended that the council only had regard to the consent as modified by the 2009 modification approval. 3. AEI, as the applicant for relief, bears the onus of establishing error on administrative law grounds (Minister for Local Government v South Sydney City Council [2012] NSWCA 288; (2002) 55 NSWLR 381; at [164] per Mason P). As has been often observed (Parramatta City Council v Hale (1982) 47 LGERA 319 per Moffit P at 345): Proof of a state of mind whether of a person or collegiate body may be a matter of difficulty, but the person who seeks under s 123 to bring down a decision, must discharge that onus however difficult that may be and he must do so in accordance with proper legal requirements and by inference not suspicion. The responsibility to make the consent determination is given to a reasonable authority which will normally be a council democratically elected. The court exercising jurisdiction under s. 123 does not sit on appeal from its determination. A conclusion by a court finding a breach of s. 90 by way of inference is one to be come to only after anxious consideration, but, when the inference is available and ought to be drawn, the court should, in service of the policy which underlies the Act, not hesitate to give effect to the inference it has drawn. 1. It was not in dispute that in undertaking the comparative exercise demanded by s 96(2) of the EPAA, as a precondition to the exercise of the council's discretionary power to permit the proposed modifications in 2012, the council was mandatorily required to have regard to the 1988 consent. 2. Having said this, it must be observed that it was not unlawful for the council, in determining the 2012 modification application, to also have regard to the 2009 modification approval, provided that the actual comparison exercise carried out referenced the unmodified 1988 consent. Nothing in either s 76A or s 96(2) of the EPAA made the 2009 modification approval an impermissible irrelevant consideration. In order to ascertain the development the subject of the consent as originally granted, a consent authority will as a matter of necessity have to distinguish between the original consent and later modifications. 3. It must also be noted that council may be taken to have actual or constructive knowledge of the contents of its file (Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 39–41, Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [67] and [72] and Reid's Farm Pty Ltd v Murray Shire Council [2010] NSWLEC 127; (2010) 182 LGERA 1 at [75]). A copy of the 1988 consent was located on the council file. 4. However, as stated above, a copy of the 1988 EIS, incorporated into the 1988 consent, could not be located on the council file and there was no direct evidence that the 1988 EIS was considered by the council at the time it determined the 2012 modification application. Furthermore, neither Pikes nor Ashurst, who provided advice to the council on whether the development as proposed in the application was substantially the same development as the development for which consent was originally granted, were briefed with a copy of the 1988 EIS. Both the Pikes (dated 23 May 2011) and the Ashurst (dated 19 June 2012) advices were given before the determination of the 2012 modification approval on 7 August 2012. 5. AIE therefore urges upon the Court a finding that the 1988 EIS was not before the council as at the date of the determination of the 2012 modification application, and hence, the exercise of the council's power to determine the 2012 modification approval under s 96(2) miscarried. 6. I do not agree. First, I am not prepared to draw the inference, without more, that the 1988 EIS was not before the council at the time of its determination of the 2012 modification application. True it is that the 1988 EIS was not a document referred to in the report before the council at its meeting on 7 August 2012, but neither was the original 1988 consent, and it is not contended by AEI that the council omitted to have regard to this document. 7. The fact that neither Ashurst nor Pikes were briefed with a copy of the 1988 EIS is not determinative. Pikes nevertheless expressly and correctly identified and advised the council that its task was to compare the unmodified 1988 consent with the proposed modified version. It may be presumed that the council read, understood, and acted upon this advice. In respect of the Ashurst advice, it was briefed with a copy of both the 1988 consent and the 2012 SEE, the latter of which referenced the 1988 EIS. Ashurst concluded that, again having correctly compared the 1988 consent with the proposed modifications and the "relevant facts set out in the SEE", that the two developments would be substantially the same as required pursuant to s 96(2) of the EPAA. Again it may be presumed that the council read the letter, and therefore, understood the nature of the statutory task before it. 8. Reinforcing the strength of both presumptions is the fact that the letters of notification sent out by the council prior to the 2009 modification approval being granted referred to the 1988 consent. More conclusive, however, is the assessment report before the council dated 7 August 2012 (the date of the determination of the 2012 modification approval). The assessment report commenced with a description of the development as approved in 1988. It proceeded to discuss the submissions it had received, including the Hetherington objection to the proposed modification on the basis that, amongst other things, "the development is not substantially the same development". In response, the "Assessment Comment" contained in the assessment report stated that the "Council has legal advice that reinforces its decision to accept the application as a s 96 application", such advice confirming that "the proposal appeared to be substantially the same development". It is plain from this statement that the council did not misconceive the comparison to be undertaken pursuant to s 96(2)(a) of the EPAA between the 1988 consent and the modifications proposed in 2012. More significantly, the assessment report recommended that approval be given subject to conditions, amongst which condition 1 stated that the proposed development be undertaken in accordance with "Development Application and associated Development Consent 379/88 including an [sic] the Environmental Impact Statement prepared by BHP engineering and dated 1988". Condition 1 attached to the 2012 modification approval was in identical terms. The assessment report also attached the 2012 SEE which referenced the 1988 EIS (in section 8 of that document). In addition, the 2012 modification approval picked up condition 2.1 of the 1988 consent (condition 18) and deleted condition 5.1 (condition 23). These are all powerful indicators that the council had regard to the 1988 consent. In particular, it is highly unlikely, in my view, that in approving the 2012 modification application the council did not have regard to the terms of the 1988 development application, the 1988 consent and the 1988 EIS in light of condition 1 unless those documents were available to the council at the time. 9. The fact that a copy of the 1988 EIS could not be found on the council's files for the purpose of this litigation is, in my opinion, not fatal to the respondents. As anyone who has had experience with council files knows (especially a file covering a substantial period of time), it is not inconceivable that the document had been lost or misplaced by the council in the intervening period between the determination of the 2012 modification application and the filing of Mr Palmer's affidavit in December 2013 (although I accept that the short period of time elapsing between those two events weakens this inference). 10. For these reasons I am therefore prepared to draw the inference that the 1988 consent and the 1988 EIS were before the council when it granted the 2012 modification approval, and that it properly had regard to the 1988 consent when it compared the development approved under that consent with the development proposed by the 2012 modification application. 11. Second, and in any event, even if the 1988 EIS was not physically before the council when it determined the 2012 modification approval, this would not vitiate its determination, having regard to the material before it when it made its decision. 12. The 1988 consent and 1988 EIS were repeatedly referred to in the 2012 SEE which was before the council on 7 August 2012 (as evidenced by the attachments to the assessment report of the same date). In addition to the 2012 SEE, the council had before it Westlime's Response to Submissions prepared by Corkery, discussing the scope of the 1988 consent, opining that the development as proposed was not substantially the same development as that approved by the 1988 consent as required by s 96(2) of the EPAA, and attaching the Ashurst advice. Also in its file was the 1988 Summary EIS, the 2008 SEE (which discussed the 1988 consent and the 1988 EIS), the 2008 modification application documents and the 2009 modification approval (also discussing the 1988 consent and 1988 EIS), Hetherington's objection to the 2012 modification application, Westlime's Background Paper to the 2012 modification application dated March 2012 (discussing the development as approved in 1988), and, importantly, the 7 August 2012 assessment report, all of which discussed the 1988 consent and the 1988 EIS. 13. While the assessment report is not an expression of council's reasons for granting the 2012 modification approval, the council meeting of that date may, in the absence of evidence to the contrary, be taken to have adopted the content of that report (Telstra Corp Ltd v Hurstville City Council (2002) 118 FCR 198 at [50] and Bechara v Plan Urban Services Pty Ltd [2006] NSWLEC 594; (2006) 149 LGERA 41; at [45] per Jagot J). There was nothing erroneous about the council relying upon and adopting the discussion and recommendations contained in the 7 August 2007 assessment report, and its attachments, when assessing the 2012 modification application (Reid's Farm at [121]). 14. It may therefore be inferred that this material, together with the other material in the council's file referred to above, was all within the council's contemplation at the time the 2012 modification approval was granted. 15. Consequently, I find that, as it was obliged to do under s 96(2)(a) of the EPAA, the council had regard to the development as approved in the 1988 consent, including the incorporated 1988 EIS, when granting the 2012 modification approval. This ground of review must therefore be rejected. Whether s 96(2)(a) of the EPAA Gives Rise to an Objective Jurisdictional Fact as to the Council's Satisfaction that the Developments Were Substantially the Same 1. As a preliminary issue to AEI's principal submission under its third ground of review, namely, that the council erred in concluding that the development as modified in 2012 (not 2009) was substantially the same as that consented to in 1988, AEI argued that the question of whether or not the development was substantially the same was an objective jurisdictional fact that the Court had to determine for itself. If the Court cannot determine for itself whether the development was substantially the same, then AEI's complaint is essentially one directed to the merits of the council's decision, which, given that AEI does not seek to impugn the existence of the state of satisfaction arrived at by the council in approving the 2012 modification application, will be (subject to the fourth ground of review, viz, manifest unreasonableness) unassailable in these judicial review proceedings (Attorney-General (NSW) v Quinn [1990] HCA 21; (1990) 170 CLR 1). 2. Both Westlime and the council asserted that the decision by Jagot J in Bechara was determinative authority for the proposition that the formation of the requisite opinion in s 96(2)(a) is a matter for the original decision-maker, and not the Court. 3. In Bechara, in respect of s 96(1A)(b) of the EPAA (where an identical statutory formulation to that contained in s 96(2)(a)), Jagot J held that (at [42] and [46]): 42 Mason P in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475, characterised the gateways through which an applicant for modification had to pass as "narrow". Although the section was subsequently amended, the provision requiring the consent authority to be satisfied that the modified development would be "substantially the same" remained, and unquestionably is a constraint on the power of a consent authority. It is a constraint expressed, however, not by reference to an objective fact, but to a state of satisfaction of the consent authority, in this case Mr Robinson as the Council's delegate. That feature of the statutory scheme does not immunise the decision from judicial review. The required state of satisfaction must be formed absent any material misdirection in law and must be reasonably open in the particular circumstances. In this context, see the review of Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] to [137]. Mr Robinson said that he formed the required state of satisfaction in terms. Pointing to one paragraph in his report describing the additional level as significant, does not establish that Mr Robinson asked the wrong question or gave an incorrect meaning to the statutory test. … 46 Finally, provided the decision maker addresses the correct question (is the development to which the consent as modified related substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all)), the range of facts relevant to the answer to that question is left to the decision-maker. Minds may reasonably differ about those facts. 1. While not submitting that Bechara is plainly wrong, AEI relied upon the authority of Botany Bay City Council v Marana Developments Pty Ltd [2012] NSWLEC 15 per Pain J, where her Honour opined that (at [23]): 23. It is relevant to note at the outset that the Council submitted and Marana accepted that the finding of satisfaction in s 96(2)(a), that the development as sought to be modified is substantially the same as the development originally granted consent, is a jurisdictional fact which must be satisfied before an application for modification under s 96 can be considered. That the finding of necessary satisfaction is a condition precedent to the exercise of the statutory power under s 96(2) is supported by the numerous authorities identified in the Council's written submissions (par 5) which identify the nature of a jurisdictional fact, R v Federal Court of Australia; Ex parte Pilkington ACI (Operations) Pty Ltd [1978] HCA 60; (1978) 142 CLR 113, Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 and SGLB , and I will proceed on this basis. 1. Thus, AEI submitted, the authorities were inconsistent, and therefore, the issue fell for resolution in these proceedings. 2. But in my opinion, Marana does not stand for proposition contended for by AEI. Marana was an appeal under s 56A of the Land and Environment Court Act 1979 ("the LEC Act") and the issue giving rise to Pain J's remarks quoted above was whether (at [22]): 22. The issue raised for preliminary determination is whether the Commissioner's finding of satisfaction required by s 96(2)(a), which founds jurisdiction under s 96 to determine a modification application, is a question of law and able to be raised in this s 56A appeal. Further matters specified in s 96(2)(b), (c) and (d) must also be complied with before an application for modification can be approved but no issue is raised in relation to these. That issue arises before and separately from the question of whether the ground of review identified in appeal ground 1 based on the reasoning in SZMDS can arise 1. Her Honour held that the question should be answered in the affirmative because whether the Commissioner had jurisdiction to exercise power under s 96(2)(a) of the EPAA gave rise to a question of mixed fact and law which was sufficient to enliven the Court's jurisdiction under s 56A of the LEC Act (at [52]). 2. Significantly, Pain J went on to hold that the jurisdictional fact (the existence of which was not a matter of controversy between the parties: at [23]) was a "special kind" of jurisdictional fact (a matter also agreed upon by the parties: at [54]) that did not permit the Court to determine for itself whether there was the requisite state of satisfaction under s 96(2)(a) of the EPAA. Rather, the Court could only review whether the facts needed to establish if the council had relevantly formed the state of satisfaction required by s 96(2)(a) of the EPAA existed (at [54]–[55]): 54. A further consideration in this analysis is that the Council's submissions include the statement that the jurisdictional fact in s 96(2) is of a special kind according to Spigelman CJ in Pallas Newco at [25], a matter not disputed by Marana. A special kind of jurisdictional fact means that in judicial review proceedings a Court can review whether the facts needed to establish satisfaction of a jurisdictional fact exist but will not itself determine whether there is such satisfaction. As these are merit review proceedings where the Court exercises all the powers and functions of the Council under s 39 of the Court Act it can in theory determine the existence of that jurisdictional fact in these Class 1 proceedings. That leads to another issue which will require further consideration by the parties in this appeal and that is the appropriate relief the court should grant assuming that I determine the appeal ground in the Applicant's favour, a matter referred to earlier at [41] when B & L Linings was discussed. The orders the Court can make under s 56A(2) include the matter being remitted to a commissioner or the Court making any order which seems fit. 55. Separate to my conclusion on the preliminary question, ground 1 is couched in terms of whether a reasonable person would form the opinion that the requirements of s 96(2)(a) were satisfied. This was submitted by the Council to be in conformity with the approach in Connell and SZMDS . I will not rule finally on the nature of the satisfaction able to be raised in appeal ground 1 as I do not consider the parties' submissions adequately addressed this issue. The Council relies on SZMDS as identifying a potentially new ground of review based on a challenge to the illogicality of making findings of jurisdictional fact (but also relies on the much earlier case of Connell in its submissions). Marana appeared to accept that such a ground may now exist. The Council also submitted that it is not seeking a merits review of the Commissioner's conclusion of satisfaction and that it is not asking the Court to substitute its own opinion on the question of satisfaction. These submissions are not self-evidently correct given the terms of the appeal ground. 1. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135, this "special" species of jurisdictional fact was described in the following way (at [34] per Gleeson CJ, Gummow, Kirby and Hayne JJ): 34. Had s 35(3) been expressed so as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs, or were it to be so understood, as Collex submitted, further questions would have arisen. In particular, the existence of the opinion or satisfaction would be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker [44]. But that is not what s 35(3) involves. It stipulates in direct terms a precondition which obliges, without certain concurrences, refusal of a grant of consent. 1. In my view, properly analysed Pain J's analysis in Marana is entirely consistent with the approach taken by Jagot J in Bechara. In the latter case, after the remarks quoted above, her Honour went on to consider whether the s 96(1A)(b) state of satisfaction reached by the council was reasonably open to it based on the material before it (at [48] ff). In this regard, her Honour was at pains to note that (at [52]): … Finding that I prefer one opinion to another cannot advance resolution of this claim. That would be required if the modification application had come before me on a merit appeal in class one, in which event I would be bound not only to reach a reasonably open opinion about s 96(1A)(b), but also the opinion that I believed sound and right. 1. In addition, both Bechara and Marana are consistent with earlier and later authority of this and other courts, for example, Wolgan Action Group Incorporated v Lithgow City Council [2001] NSWLEC 199; (2001) 116 LGERA 378, Lesnewski v Mosman [2005] NSWCA 99; (2005) 138 LGERA 207, Casa v City of Ryde Council [2009] NSWLEC 212; (2009) 172 LGERA 348 and Terranora Group Management Pty Ltd v Director-General Office of Environment & Heritage [2013] NSWLEC 198; (2013) 200 LGERA 1. 2. In Wolgan, Talbot J observed (at [38]–[39] and [42]): 38. It is important to appreciate that s 96(2) authorises a consent authority to modify the consent if "it is satisfied" that the development is substantially the same development. The requirement pursuant to s 96(2)(a) is the satisfaction rather than the fact that the development will be substantially the same development following modification. 39. In Corporation of the City of Enfield v Development Assessment Commission and Another (1999) 199 CLR 135 at 150, the High Court distinguished between a stipulation in direct terms and a requirement that turns upon the satisfaction or opinion of the relevant authority. It is not for the relevant authority itself to determine the former as a matter of its opinion whereas, in respect of the latter, the existence of the opinion or satisfaction is to be treated as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker. … 42. Although the approach may not now be appropriate in all contexts following the determination of the High Court in Enfield, nevertheless, the judgment of Stein JA in Londish v Knox Grammar School and Others (1997) 97 LGERA 1, particularly at 8, explains the test which should be undertaken in respect of a provision such as s 96(2)(a) "to the effect that if the opinion by the decision maker was not vitiated by irrelevant consideration and one which was reasonably open to make, the Court will not review the substance of the decision" . 1. In Lesnewski the issue for determination was as follows (at [31] and [32] per Tobias JA, with whom Hodgson and Ipp JJA agreed): 31 The first ground of challenge to the validity of the construction certificate dealt with by the primary judge was the allegation that it was inconsistent with the consent and, therefore, in breach of Regulation 145(1)(a). That provision is in the following terms: "(1) A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a) that the design and construction of the building (as depicted in the plans and specifications and as described in any other information furnished to the certifying authority under clause 140) are not inconsistent with the development consent." 32 The thrust of the appellant's argument on this issue was that the Land and Environment Court should determine for itself whether the design and construction of the building as depicted in the plans and specifications furnished to the certifying authority for the purpose of the issue of the construction certificate were consistent with the development consent. In other words, it was asserted that lack of inconsistency was a jurisdictional fact which was required to be determined objectively before the Council (or its delegate) was empowered to issue a construction certificate. 1. The Court of Appeal held that "the only jurisdictional fact arising out of that provision is that the certifying authority… must in fact be satisfied of the matters referred to but if he is, then the jurisdictional fact is established" (at [42]). The Court relied upon the following cases in support of its conclusion (at [43]–[44]): 43 Support for the foregoing is to be found in the following observations of Spigelman CJ in Woolworths at [25] where he said: "A criterion expressed in terms of the opinion or satisfaction of a decision-maker may be a jurisdictional fact of a special kind, one more readily established. (See, e.g. City of Enfield at [34]; Minister for Immigration and Ethnic Affairs v Teo (1995) 57 FCR 194 at 198 per Gummow J; Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 291 at 303.) The Court may subject the opinion to judicial review. It will not determine whether the development was, in fact, consistent with the objectives of the zone." 44 Furthermore, in Moy v Warringah Council [2004] NSWCCA 77; (2004) 133 LGERA 49 at 60 [62], Sperling J, with whom Sully and Simpson JJ agreed, held that Regulation 145, in contrast to s 96 of the EPA Act, "calls for a finding of fact by a tribunal (the court) as to whether another person (the certifying authority ...) was satisfied that the variation, in nature and degree, was allowable. In one case [s 96] it is a tribunal's own opinion that counts. In the other [Regulation 145], it is a tribunal's finding of fact as to the opinion of the certifier that counts." 1. Casa concerned an earlier iteration of s 80(3) of the EPAA (at [47]): 47 Section 80(3) of the Environmental Planning and Assessment Act 1979 ("the EPAA") then in force provided as follows (emphasis added): (3) "Deferred commencement" consent A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority , in accordance with the regulations, as to any matter specified in the condition . Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition. 1. The applicants contended that the submission of a landscape plan that complied with a condition of a development consent was a jurisdictional fact, the existence of which was a precondition to the valid exercise by the council of its power to determine if the development consent was operational. After reviewing the decisions in Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185; (2009) 171 LGERA 247 (at [93] and [102]-[103]), Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 (at [37]–[44]), Gedeon v Commissioner of NSW Crime Commission [2008] HCA 43; (2008) 236 CLR 120 (at [43]-[47]), Barrick Australia Ltd v Williams [2009] NSWCA 275; (2009) 74 NSWLR 73; (at [38]–[42] and [53]), the Court held that a proper construction of s 80(3) of the EPAA revealed the existence of a "special kind" of jurisdictional fact in the more limited sense discussed above (at [64]–[68]): 64 Having regard to the propositions and decisions referred to above, a proper construction of s 80(3) of the EPAA reveals the existence of a "particular kind of jurisdictional fact" only in the limited sense described in Timbarra (at [42]), namely, that the existence of the mental state of the council (its satisfaction) is a jurisdictional fact which enlivens the exercise of statutory power rendering the development consent operational. Judicial review by this Court is accordingly confined to determining whether the mental state existed and if so, whether that mental state was reasonably open on the facts in the Wednesbury unreasonableness sense (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223). It does not permit the Court to inquire into the existence of the facts underlying the achievement of the requisite mental state. 65 The applicants contend that the mental state contained in s 80(3) of the EPAA is a factual reference preliminary to the exercise of statutory power which is strongly suggestive of a parliamentary intention to establish a jurisdictional fact (Timbarra at [44]). I do not agree 66 The power to impose a condition under s 80(3) derives from s 80A(1)(h) of the Act. The power to impose the condition is not preconditioned upon the existence of any fact, unlike, for example, the power to grant consent for a development in s 80(1) of the EPAA, which is, by contrast, preconditioned on the fact that to do so must not result in a contravention listed in s 80(2). Rather, s 80(3) merely confirms the power of the consent authority to grant a development consent subject to a condition fitting the description contained in that provision should it elect to do so. The power to grant a development consent, and in particular a conditional deferred development consent, derives from ss 80(1) and 80A(1)(h) and not simply s 80(3). Viewed this way there is no jurisdictional factual reference to be made in the statutory conferral of power in s 80(3). 67 To the extent that the applicants rely on cl 95(2) and (5) of the Regulation in support, cl 95(2) merely states that the deferred commencement consent must clearly distinguish between those conditions requiring the consent authority to attain a mental state from those that do not. Clause 95(5) of the Regulation goes on to specify that once the required mental state is achieved by the consent authority as to the matters specified in the condition, then the authority "must notify the applicant whether or not it is satisfied as to the relevant matters". The operation of neither cl 95(2) nor (5) of the Regulation themselves enliven the operation of the development consent. Rather, it is the attainment of a state of satisfaction by the consent authority as to any matter specified in the condition together with the notification that renders the development consent operative. 68 Therefore, at its highest the power in s 80(3) which is engaged to permit the development consent to become operational may be expressed "as to turn upon the satisfaction or opinion of the relevant authority as to a state of affairs" and the existence of the satisfaction is treated "as requiring an opinion or satisfaction formed reasonably upon the material before the decision-maker" (Corporation of the City of Einfeld v Development Assessment Commission (2000) 199 CLR 135 at [34]). This militates strongly against the establishment of a jurisdictional fact (Gedeon at [32]-[33]). 1. Accordingly, the Court held that it could "inquire as to whether the council was in fact satisfied that condition 1… had been met, but not as to the content of that satisfaction" (at 73]). 2. In Terranora Biscoe J was required to decide whether s 38 of the Native Vegetation Act 2003 gave rise to a subjective or objective jurisdictional fact. That provision stated: 38 Directions for remedial work (1) If the Director-General is satisfied: (a) that any native vegetation has been cleared in contravention of this Act, or (b) that the clearing of native vegetation on any land has caused, or is likely to cause, on or in the vicinity of the land, any soil erosion, land degradation or siltation of any river or lake, or any adverse effect on the environment, the Director-General may, by notice in writing, direct the landholder, or the person having the control or management of the clearing, to carry out specified work in a specified manner and within a specified time. (2) Any one or more of the following types of work may be directed to be carried out by a notice under this section: (a) work to repair any damage caused by the clearing, (b) work to rehabilitate any land affected by the clearing (including the taking of steps to allow the land to regenerate), (c) work to ensure that specified land, or any specified river or lake, will not be damaged or detrimentally affected, or further damaged or detrimentally affected, by the clearing. (3) A direction under this section may be varied or revoked by a further notice. (4) A person who does not comply with a direction under this section is guilty of an offence. 1. His Honour summarised the relevant principles and authorities (at [48]): 48. It is a question of statutory construction whether a jurisdictional fact criterion is objective or subjective. If the criterion is objective, on judicial review the Court may determine the existence or non-existence of the fact on the evidence before the Court: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, (1999) 46 NSWLR 55 at [36]. A subjective criterion is one that is conditioned upon the formation of a state of mind by the decision-maker, for instance an opinion or state of satisfaction: Malaysian Declaration Case at [57], [106] - [109], Timbarra at [39] - [42] and Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, (2004) 61 NSWLR 707 at [5] per Spigelman CJ. The Court may subject that state of mind to judicial review, for example as to whether it was manifestly unreasonable, but cannot itself determine the existence or non-existence of the facts to which the state of mind relates: Woolworths at [25]. If the criterion is subjective, the decision-maker is required to form an evaluative judgment in good faith, within the scope and purpose of the Act, as to the matters referred to in the statutory provision, properly construed: Malaysian Declaration Case at [57] - [59], [108] - [109]… 1. His Honour held that, in respect of both s 38(1) and s 38(2) of that Act, the jurisdictional facts were subjective in nature (at [49] and [56], respectively). 2. As the authorities identified above in Terranora make plain, the question of whether a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion, gives rise to a subjective or objective jurisdictional fact, is one of statutory construction. The principles of interpretation governing the existence of jurisdictional facts have been discussed more recently in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50 (at [38]–[39]), Huntlee Pty Ltd v Sweetwater Action Group Inc [2011] NSWCA 378; (2011) 185 LGERA 429 (at [114]–[115]), Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; (2011) 244 CLR 144 (at [57]–[58]) and Fullerton Cove Residents Action Group Inc v Dart Energy Ltd (No 2) [2013] NSWLEC 38; (2013) 195 LGERA 229 (at [236]–[239] and [268]–[269]). 3. In Fullerton, quoting extensively from Calardu, the principles were set out as follows (at [287]–[288]): 287 Some principles of assistance in determining whether a statutory provision gives rise to a jurisdictional fact were usefully summarised by Biscoe J in Calardu Penrith Pty Ltd v Penrith City Council [2010] NSWLEC 50, which I respectfully adopt (at [38]–[39]): 38. The leading cases on jurisdictional fact include: (a) the seminal decision of the Privy Council in Colonial Bank of Australasia v Willan (1874) LR 5 PC 417; (b) the decisions of the High Court in Gedeon v Commissioner of the New South Wales Crimes Commission [2008] HCA 43, 236 CLR 120 (a successful appeal from the decisions of the NSW Court of Appeal in the two cases of Dowe and Gedeon v Commissioner of the New South Wales Crime Commission [2007] NSWCA 296); Enfield City Corporation v Development Assessment Commission [2000] HCA 5, 199 CLR 135; Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10; (1997) 187 CLR 297; and Sutherland Shire Council v Finch [1970] HCA 49, 123 CLR 657; (c) the decisions of the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, 46 NSWLR 55; Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422, 61 NSWLR 707; and Barrick Australia Ltd v Williams [2009] NSWCA 275, 168 LGERA 43; and (d) the decision of the Full Federal Court in Anvil Hill Project Watch Association Inc v Minister for Environment and Water Resources [2008] FCAFC 3, 166 FCR 54 at [32]. 39. The concept of jurisdictional fact as explained in these authorities may be analysed as follows (refining a little my analysis in Hill Top Residents Action Group Inc v Minister for Planning [2009] NSWLEC 185 at [102], quoted in Casa v City of Ryde Council [2009] NSWLEC 212 at [62]): (a) the expression "jurisdictional fact" generally "is used to identify a criterion the satisfaction of which enlivens the exercise of the statutory power or discretion in question. If the criterion be not satisfied then the decision purportedly made in exercise of the power or discretion will have been made without the necessary statutory authority required of the decision maker": Gedeon at [43], Enfield at [28]; (b) parliament can make any fact a jurisdictional fact by an intention that it must exist in fact (objectivity) and that its absence or presence will invalidate action under the statute (essentiality): Timbarra at [37], Dowe at [30]; (c) the normal rules of statutory construction apply when determining whether a factual reference is a jurisdictional fact: Timbarra at [39]; (d) where the process of construction leads to the conclusion that parliament intended that the primary decision-maker could authoritatively determine the existence or non-existence of the fact, then a court cannot itself determine the existence or non-existence of the fact, although (if it is in issue) the court will inquire, for example, as to whether the decision was manifestly unreasonable in the Wednesbury sense: Timbarra at [41]; (e) there is a distinction between a fact that is an essential preliminary (ie legally antecedent) to the decision-making process and a fact to be adjudicated upon in the course of the decision-making process: Colonial Bank at 442-443, Timbarra at [52], Woolworths at [46]. If the factual reference is preliminary to the exercise of statutory power, it is more likely to be a jurisdictional fact: Timbarra at [44], Woolworths at [48]; (f) the existence of a jurisdictional fact is often signalled by expressions such as "where X exists" or "when X exists" or "if X exists", then a person is empowered or obliged to act or refrain from action: Anvil Hill at [21]; (g) a jurisdictional fact includes the mental state of a decision-maker as to the existence of X where the statute mandates that that mental state enlivens the exercise of the statutory power. In such a case, judicial review by a court is limited to (i) determining whether that mental state existed and does not extend to determining whether X existed, and (ii) determining whether that mental state was reasonably open on the facts in the Wednesbury sense ie manifestly unreasonable: Timbarra at [41] - [42],Barrick at [35] - [36], [38], Australian Heritage Commission at 306-308; (h) where a factual reference appears in a statutory formulation containing words involving the mental state of the primary decision-maker - for example, "opinion", "belief", "satisfaction" - the construction is often, although not necessarily, against a conclusion of jurisdictional fact, other than in the sense that the mental state is a particular kind of jurisdictional fact. Where such words do not appear, the construction is more difficult: Timbarra at [42], Enfield at [28] and [34], Sutherland Shire Council at 666, Woolworths at [13] and [25], Anvil Hill at [21], Barrick at [30]- [39]. (i) the fact that questions of degree arise and that there will be room for differences of opinion does not mean that the matter would more appropriately be decided administratively rather than by judicial decision: Sutherland Shire Council at 666. However, the fact that a judgment is required on a matter of potentially significant disputation suggests, but it is not always the case, that it is less likely to be intended to be an objective fact, because it is, characteristically, a matter on which reasonable minds may differ: Timbarra at [89], Woolworths at [60]; (j) the scope and purpose of the legislative scheme may be an indicator of whether or not a factual reference is a jurisdictional fact: Woolworths at [30]; (k) a jurisdictional fact may be suggested by a prohibition of conduct unless a specified fact exists: Enfield at [34], Woolworths at [44]; (l) the location of a factual reference in a statutory formulation concerned with the requirements of an application is a significant factor suggesting that the factual reference is jurisdictional: Timbarra at [51]; (m) inconvenience arising from a jurisdictional fact conclusion is relevant to determining the legislative intention: Timbarra at [91], Woolworths at [63]. 288 To this may be added: (a) if a breach of the statutory provision said to contain a jurisdictional fact does not result in invalidity, the absence of "essentiality" suggests that the relevant provision does not incorporate "objectivity" and is therefore not a jurisdictional fact (Huntlee at [117]); and (b) where an evaluative judgment or assessment is required to be made by the decision-maker, for example, the determination of the 'suitability' of a matter, this is less likely to be construed as specifying a jurisdictional fact or objective state of affairs (Pallas Newco at [56]-[58] and Huntlee at [118]). 1. Applying these principles, and the cases referred to above, leads to the conclusion that the jurisdictional fact contained in s 96(2)(a) of the EPAA is of the "special", limited, or subjective kind. Indicators include, that s 96(2)(a) is expressed in subjective terms ("if it is satisfied that"), and that there is an evaluative element and some potential complexity in resolving the fact contemplated by s 96(2)(a), upon which reasonable minds might differ, as to whether the proposed modified development is substantially the same as the original development. 2. In its written submissions AEI conceded that if, in the present proceedings the Court found that the jurisdictional fact was of the "special kind", then it did "not suggest that the modification would be set aside on this ground". Given my finding above this is sufficient to dispose of this ground of review. 3. AEI does not seek to impugn the existence of the relevant state of satisfaction by the council in determining the 2012 modification approval. This is because on the state of the evidence it cannot do so. It would necessitate AEI establishing that, on the balance of probabilities, the council had not compared the 2012 modification application with the 1988 consent and had not concluded that it was substantially the same development. The evidence detailed above, however, plainly demonstrates that the council in fact reached the requisite state of satisfaction. As a consequence, therefore, this ground of review cannot be sustained. 4. If, however, my finding on the nature of the jurisdictional fact contained in s 96(2)(a) is wrong, and the factual criterion in s 96(2)(a) of the EPAA ought correctly be characterised as objective, the existence or non-existence of which can be reviewed by the Court, then for the reasons explained below in relation to ground four, I would nevertheless conclude that the development the subject of the 2012 modification approval was substantially the same as the development the subject of the 1988 consent. Whether the Decision to Grant the 2012 Modification Approval Was Manifestly Unreasonable 1. AEI submitted that because the consent as modified by the 2012 modification approval was not substantially the same as the 1988 consent, the decision to grant the 2012 modification approval was manifestly unreasonable insofar as it was patently not open for the council, acting reasonably, to attain the state of satisfaction required under s 96(2)(a) of the EPAA. 2. The principles applicable to review for Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 234 and 235 per Lord Greene MR) have been well traversed. 3. Although subsequently endorsed and entrenched in Australia (see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611 at [124]; Abebe v The Commonwealth [1999] HCA 14; (1999) 1977 CLR 510 at [116]); Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [40]; Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [123] and Minister for Immigration and Citizenship v Xiujuan Li [2013] HCA 18; (2013) 249 CLR 332), the concept of manifest unreasonableness is not new. As the plurality in Li observed, a standard of reasonableness in the exercise of any discretionary power conferred by the legislature was demanded well before the decision in Wednesbury (at [64]–[66]). 4. In Li, French CJ described the operation of principle in the following terms (at [26]): 26 The rationality required by "the rules of reason" is an essential element of lawfulness in decision-making. A decision made for a purpose not authorised by statute, or by reference to considerations irrelevant to the statutory purpose or beyond its scope, or in disregard of mandatory relevant considerations, is beyond power. It falls outside the framework of rationality provided by the statute… 1. But his Honour sounded this note of caution (at [30], and see a similar sentiment expressed in the joint judgment of Hayne, Kiefel and Bell JJ at [66]): 30 The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence." 1. More apposite in the context of the present proceeding, Gageler J discussed the obligation on decision-makers to act reasonably (at [90], emphasis in original): 90 Implication of reasonableness as a condition of the exercise of a discretionary power conferred by statute is no different from implication of reasonableness as a condition of an opinion or state of satisfaction required by statute as a prerequisite to an exercise of a statutory power or performance of a statutory duty. Each is a manifestation of the general and deeply rooted common law principle of construction that such decision-making authority as is conferred by statute must be exercised according to law and to reason within limits set by the subject-matter, scope and purposes of the statute. 1. Equally, however, his Honour emphasised the very tangible constraints on the successful application of this ground of review (at [108] and [113]): 108 Judicial determination of Wednesbury unreasonableness is constrained by two principal considerations. One is the stringency of the test that a purported exercise of power is so unreasonable that no reasonable repository of the power could have so exercised the power. The other is the practical difficulty of a court being satisfied that the test is met where the repository is an administrator and the exercise of the power is legitimately informed by considerations of policy. … 113 Yet the stringency of the test remains. Judicial determination of Wednesbury unreasonableness in Australia has in practice been rare. Nothing in these reasons should be taken as encouragement to greater frequency. ... 1. To this curial chorus, the observations of Menzies J in Parramatta City Council v Pestell (1972) 128 CLR 305 (at 323), as quoted and expanded upon by Jagot J in Bechara (at [48]–[49]), should be added: 48 The principles applicable to review for Wednesbury unreasonableness are well known (Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). Biscoe J surveyed many of the familiar judicial admonitions about the very confined nature of review on this ground in Save our Street Incorporated v Settree (2006) NSWLEC 570 at [27] to [31]. To that survey, I would add only a reference to The Council of the City of Parramatta v Pestell [1972] HCA 59; (1972) 128 CLR 305 at 323 where Menzies J observed that: There is, however, a world of difference between justifiable opinion and sound opinion. The former is one open to a reasonable man; the latter is one that is not merely defensible - it is right. The validity of a local rule does not depend upon the soundness of a council's opinion; it is sufficient if the opinion expressed is one reasonably open to a council. Whether it is sound or not is not a question for decision by a court. 49 The distinction drawn by Menzies J focuses attention on the critical difference between a decision which is so devoid of plausible justification as to amount to an abuse of power (with which the courts will interfere) and a decision which is reasonably open even though the court may not consider that decision to be sound or right (with which the courts will not interfere). This distinction must be kept in mind in a case such as the present where, as I have said, minds may reasonably differ about the application of ss 96(1A)(a) and (b) to any particular modification application. Legal Principles Governing the Power to Modify in s 96(2) of the EPAA 1. The applicable legal principles governing the exercise of the power contained in s 96(2)(a) of the EPAA may be stated as follows: 1. first, the power contained in the provision is to "modify the consent". Originally the power was restricted to modifying the details of the consent but the power was enlarged in 1985 (North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 and Scrap Realty Pty Ltd v Botany Bay City Council [2008] NSWLEC 333; (2008) 166 LGERA 342 at [13]). Parliament has therefore "chosen to facilitate the modification of consents, conscious that such modifications may involve beneficial cost savings and/or improvements to amenity" (Michael Standley at 440); 2. the modification power is beneficial and facultative (Michael Standley at 440); 3. the condition precedent to the exercise of the power to modify consents is directed to "the development", making the comparison between the development as modified and the development as originally consented to (Scrap Reality at [16]); 4. the applicant for the modification bears the onus of showing that the modified development is substantially the same as the original development (Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8); 5. the term "substantially" means "essentially or materially having the same essence" (Vacik endorsed in Michael Standley at 440 and Moto Projects (No 2) Pty Ltd v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 at [30]); 6. the formation of the requisite mental state by the consent authority will involve questions of fact and degree which will reasonably admit of different conclusions (Scrap Realty at [19]); 7. the term "modify" means "to alter without radical transformation" (Sydney City Council v Ilenace Pty Ltd [1984] 3 NSWLR 414 at 42, Michael Standley at 474, Scrap Realty at [13] and Moto Projects at [27]); 8. in approaching the comparison exercise "one should not fall into the trap" of stating that because the development was for a certain use and that as amended it will be for precisely the same use, it is substantially the same development. But the use of land will be relevant to the assessment made under s 96(2)(a) (Vacik); 9. the comparative task involves more than a comparison of the physical features or components of the development as currently approved and modified. The comparison should involve a qualitative and quantitative appreciation of the developments in their "proper contexts (including the circumstances in which the development consent was granted)" (Moto Projects at [56]); and 10. a numeric or quantitative evaluation of the modification when compared to the original consent absent any qualitative assessment will be "legally flawed" (Moto Projects at [52]). 1. AEI described the "essence" of the 1988 consent as: 1. for an open cut gold mine; 2. for the purposes of a mine and not an extractive industry; 3. including a gold ore treatment and processing plant for the gold ore extracted onsite; 4. not including ore from other locations to be transported to the site without prior consent of the council (relying on condition 5.1 of the 1988 consent); 5. for a limited time (relying on conditions 2.1, 3.7, 3.14, 3.16 and 4.4 of the 1988 consent); and 6. requiring the land to be rehabilitated. 1. The combined effect of the 2009 and 2012 modification approvals, however, resulted in a substantially different development from that approved in 1988, namely, one that: 1. no longer included mineral extraction, and therefore, could not be properly characterised as a mine. Rather, the land was to be used for the purposes of an extractive industry, that is, a hard rock quarry and the treatment of imported gold ore; 2. did not process ore for the purposes of extracting gold from the land; 3. permitted up to 50,000 tonnes of ore per annum to be transported to the site (having regard to the deletion of condition 23) 4. was not time limited; and 5. did not have an obligation to rehabilitate the area of the extractive industry. 1. AEI relied on the various definitions of "mine", "extractive material" and "extractive industry" in the 1970 and 1980 Model Provisions and the 1990 and 2012 LEP (as quoted above), to draw a distinction between the development approved by the 1988 consent - that is to say, a "mine" - and the development approved by the 2009 and 2012 approvals - viz, an "extractive industry". 2. According to AEI, the various definition of these terms in the planning instruments made it tolerably clear that the concept of a "mine" had been deliberately excluded from the definition of "extractive industry", and therefore, the approvals granted in 2009 and 2012 for the use of the land as an extractive industry could not reasonably be said to be substantially the same as the consent given in 1988 for the use of the land as an open cut gold mine. 3. Reinforcing this conclusion in respect of the 2009 modification approval was the fact that no mining lease was required in respect of that approval because the material to be extracted was not classifiable as a mineral under the Mining Act. And in relation to the 2012 modification approval, AEI emphasised the fact that the 2012 modification application described the use of the land as "industrial", as confirmed by the 2012 SEE, and that condition 25 of the 2012 modification approval required the payment of a fee for an environment protection licence based on use of the land for an extractive industry 4. As is made plain by the principles applicable to the manner in which the discretionary power contained in s 96(2)(a) of the EPAA is to be exercised by the council, the relevant comparison is between the 2012 modification approval and the 1988 consent, and not, as AEI seemed to suggest, as between the 2009 modification approval, the 2012 modification approval and the 1988 consent. AEI does not challenge the 2009 modification approval on the ground that it was not substantially the same development as the 1988 consent. Having said this, the granting of the 2009 modification approval is nevertheless relevant to the proper comparison exercise the council must undertake in respect of the 2012 modification application insofar as it forms part of the proper context or circumstances in which the 2012 modification approval was granted. 5. Having regard to the legal principles summarised above, I find that the decision by the council to approve the 2012 modification application was neither manifestly unreasonable nor unreasonable. Put another way, I do not accept that the council's satisfaction that the 2012 development as proposed by the modifications and the development the subject of the 1988 consent were substantially the same, was sufficiently attended by unreasonableness that intervention by the Court can be justified. 6. The matters relied upon by AEI to demonstrate that the developments were not substantially the same do not, in my view, withstand close scrutiny. In short, the consent for the development in 1988 was for a use of the land as an open cut gold mine as well as for the operation of an ore treatment plant to extract gold. The consent consisted of a number of components: extractive (extracting the ore on the ground in the location of the open cut pits); and processing and treatment (crushing the rock on site and processing it at the CIP processing facility).The operation of the processing and treatment facility did not preclude the use of material transported to the site. Contrary to the submission of AEI, condition 5.1 expressly contemplated the transportation of ore to and from the mine for processing provided that the council consented. This is precisely what occurred, as evidenced by the haulage contributions paid by BHP to the council for the transport of ore between sites pursuant to condition 5.1 of the 1988 consent. 7. The 2012 development approved an operation involving extraction of ore from the same body of rock in a pit adjacent to the pre-existing open cut pits (the result of the 2009 modification approval) (a modified consent may extend the development approved by the consent to other land: Scrap Realty at [18]), that is crushed and processed on site using plant and infrastructure in Westlime's road base production similar to that previously used for the milling of the gold ore. While the processing methodology has changed with technological improvements, and any gold ore mined on site is now exported, these are not changes that ought to be characterised as effecting "radical" transformation as between the two developments. 8. That the extractive component of the 2012 development cannot be classified as a "mine" under the Model Provisions should not be, in my opinion, accorded much weight. As a matter of logic, just as characterising the development as being for a certain use and that as altered it can be characterised as for precisely for the same use, does not mean that the developments are substantially the same (Vacik), merely because the original and altered uses of the land are different does not inexorably lead to the conclusion that the developments are not substantially the same. Characterisation of the developments, although relevant, will not necessarily be determinative. 9. In Vacik, an application was made to modify a consent to backfill an existing quarry with non-putrescible waste. Waste disposal was not part of the rehabilitation of the quarry. The Court held that because an additional and distinct use, that of waste disposal, was to be included in the rehabilitation of the quarry (a use that was not incidental or ancillary to the dominant use) the development was not substantially the same. 10. In the present case, by contrast, although the developments may be differently characterised, the activity remains the same, namely, the winning and processing of ore on the land, and the transportation of ore to and from the land for processing. The use to which the land has been put pursuant to the 2012 modification approval has the same "essence", therefore, as the use to which the land was put under the 1988 consent. 11. As to the specific matters raised by AEI: 1. the 1988 consent was for an open cut gold mine and the construction and operation of an ore treatment plant to extract gold. In other words, it was not merely for the use of the land as a gold mine but also for the activity of processing of the ore. Under the 2012 modification approval, the land is currently being used to process the ore extracted from and imported to it, including gold ore; 2. although a "mine" is not an "extractive industry" for the purposes of the relevant planning instruments, the gold ore nevertheless required extraction just as the ore for the road base requires extraction; 3. ore from other locations was transported to and from the mine in accordance with condition 5.1 of the 1988 consent. This condition endured in 2009 (condition 23). The fact that it was deleted and replaced with a condition permitting haulage of ore up to a specified tonnage does no more than remove the need to obtain separate consent from the council for the transportation of ore. The transportation, however, is a continuing activity; 4. the development as approved in 1988 was not, as was discussed above under the first ground of review, for a limited period of time; 5. that a specific amount of ore per annum (50,000 tonnes) is currently permitted to be transported to the site does not matter because ore was always permitted to be transported to the mine under the 1988 consent, and the activity permitted by that consent is not of limited duration; and 6. contrary to the submissions of AEI, there is an obligation to rehabilitate the site under the 2012 modification approval. First, pursuant to the 1988 consent, the obligation to rehabilitate the land was not complete as at 2009 but was ongoing with respect to "sections of the Project Site that have been disturbed by the Parkes Processing Centre" (see section 2.3.4.1 of the 2008 SEE). Second, an obligation to carry out rehabilitation was contained in the 2008 SEE (section 2.3.4). Third, an obligation to carry out rehabilitation was imposed in the 2009 modification approval (condition 1, incorporating the 2008 SEE, and condition 14). Fourth, an obligation to carry out rehabilitation was contained in the 2012 SEE (section 3.3.6), which, together with the 2008 SEE, was in turn incorporated into the 2012 modification approval (see conditions 1, 13 and 14). 1. For these reasons, AEI is unable to make out this ground of review. Discretion to Order Relief 1. Because AEI has been unsuccessful in establishing any of the grounds of review raised in the amended summons, it is strictly unnecessary for the Court to determine the appropriateness of the relief sought by it in the amended summons. In particular, it is unnecessary to decide whether the Court should, in the exercise of its discretion under s 124 of the EPAA, set aside the 2009 or 2012 modification approvals and grant injunctive relief restraining Westlime from acting pursuant to them. However, for the sake of completeness and in case I have erred in making any of the findings above, I shall proceed to deal with this issue. 2. AEI submitted that if the declarations sought by it were granted, then the remaining relief ought to follow because recent investigations suggested that there were significant deposits of gold in relation to which AEI has the benefit of an exploration licence burdened by the 1988 consent as modified. 3. Both Westlime and the council argued in reply that in respect of the 2009 and 2012 modification approvals the Court should not, in the exercise of its discretion, order this remaining relief because of: 1. first, the delay by AEI in seeking relief in respect of both modification approvals, especially the 2009 modification approval; 2. second, the potential prejudice to Westlime if, given the effluxtion of time, the 2009 modification approval was set aside and the restraint issued; and 3. third, there would be no real prejudice to AEI if the relief was denied. 1. The principles guiding the exercise by the Court of its discretion to grant relief under s 124 of the EPAA are well known and have been expounded upon in a number of cases (Warringah Shire Council v Sedevic (1987) 10 NSWLR 335 at 339–341, ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 at 82, Botany Bay City Council v Saab Corp at [149] and Dobrohotoff v Bennic [2013] NSWLEC 61; (2013) 194 LGERA 17 at [74]–[75] and [82]–[83]). It is not necessary to presently repeat them, but they are relied upon for the purposes of the reasons below. 2. I endorse the submissions of the respondents in relation to the relief sought in respect of the 2009 modification approval and would, were it necessary to resolve the issue, refuse to set aside that modification approval and refuse to restrain Westlime from acting on or pursuant to it. 3. First, in respect of the 2009 modification approval AEI has unnecessarily delayed the bringing of these proceedings. Well in excess of two years (the amended summons was filed on 22 August 2012), that is to say, from June 2011 when Mr Hetherington, acting on behalf of AEI, became aware of the 2009 modification approval, has passed since that approval was granted by the council (on 21 April 2009). I do not accept Mr Loche's claim that he only become aware of the terms of the 2009 modification approval in December 2013 or January 2014. I find it implausible that Mr Hetherington, acting on behalf of AEI, would not have brought the approval to Mr Loche's notice in or about June 2011. 4. Second, as revealed by Mr Loche's cross-examination, AEI would suffer very little prejudice if the relief in respect of the 2009 modification approval was refused. As Mr Loche conceded, AEI was "obviously… a long way from actually mining this stuff". Given, amongst other things: that EL 7242 had expired and was not likely to be renewed; that no mining lease application had been lodged over the land covered by EL 7242; that no drilling on the land had taken place; and that his expectation as to the amount and value of the gold in the land was no more than an estimate, the observation was an understatement. 5. Third, by contrast, if the 2009 modification approval were to be set aside and an injunction issued, then, as the unchallenged evidence of Mr Commins demonstrated, the prejudice to Westlime would be severe, with a significant fall in its revenue and concomitant job losses the likely consequence. 6. Thus, in light of the fact that there is no evidence of any environmental harm arising from the operation of the 2009 modification application; that, although a commercial operation, the operation of Westlime is nevertheless in the public interest insofar as it is one of the few providers of high quality road base to local councils and the State government; that the 2009 modification approval was the subject of environmental assessment and was supported by a detailed SEE (in 2008); that the 2008 modification application was publically notified; that there is unexplained delay in commencing the proceedings to set the 2009 modification approval aside; and that AEI would suffer limited prejudice if the relief were refused, whereas the impact on Westlime would be quite detrimental, the Court would be disinclined to exercise its discretion to set the modification approval aside and to grant the injunctive relief. 7. The same conclusion cannot, however, be arrived at in respect of the 2012 modification approval. In relation to that approval there was no real delay in bringing the proceedings to have it set aside (the summons was filed on 5 November 2012 and the approval was granted on 7 August 2012) and while no prejudice would flow (for the reasons given above) to AEI were the relief refused, there is likewise no evidence of any prejudice to Westlime if the relief were granted. Orders 1. In conformity with the reasons given above, the orders of the Court are as follows: 1. the amended summons is dismissed; 2. the applicant is to pay the first and second respondent's costs of the proceedings; and 3. the exhibits are to be returned. ********** Amendments 13 July 2015 - Coversheet - hearing dates added 17 July 2015 - reformatted table of contents and removed duplicate paragraph numbering in [15] 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: 17 July 2015