Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153

Land and Environment Court New South Wales

Medium Neutral Citation: Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153 Hearing dates: 13-17, 20-24, 27-28 February 2017; 1- 3, 24, 28, 30-31 March 2017; and 12-13, 20 April 2017 Date of orders: 12 October 2018 Decision date: 12 October 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [895] of judgment Catchwords: CIVIL ENFORCEMENT – carrying out development contrary to development consent – construction of development consent – whether development application and environmental impact statement incorporated into the development consent – held that there was uncertainty or ambiguity on the face of the consent and that therefore there was incorporation by necessary implication

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether conditions validly imposed on development of quarry – whether quarrying restricted to confined area – whether quarrying on lot 6 permissible under development consent – development consent did not contemplate quarrying on lot 6, but merely ancillary activities – regard had to plan accompanying environmental impact statement

CIVIL ENFORCEMENT – carrying out development contrary to conditions of consent – whether approval granted at genus level "extractive industry", or at species level "quarry for railway ballast" – approval was for railway ballast quarry – appropriate to characterise at species level because of external impact – elements of a railway ballast quarry as distinct from a generic quarry are: 1. production of crushed rock of a particular range of grades for railway usage; 2. utilisation of railway rolling stock for transporting the rock; 3. usually loaded from a railway siding purpose-built within or adjoining the ballast quarry; 4. usually a railway freight car carries the ballast to its end location; and 5. contained amenity and environmental impact – operations have transformed and are no longer a railway ballast quarry – connectivity between purpose, product, mode of operation and consequential external environmental impact distinguishes a railway ballast quarry from a more generic quarry – transformation from railway ballast quarry to general quarry did not have planning approval