Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council [2019] NSWCA 147 Hearing dates: 6 – 9 May 2019 Date of orders: 20 June 2019 Decision date: 20 June 2019 Before: Basten JA at [1]; Gleeson JA at [224]; Preston CJ of LEC at [225] Decision: 1. Subject to order 2, dismiss the appeal.

2. Order that:

A. With respect to lots 5 and 6, DP 242210 ("the land"):

(1) Set aside declarations (1) and (2) made in the Land and Environment Court and in place thereof:

Declare that the consent to development application 171/90/79 granted by Dungog Shire Council ("the consent") permitted use of the land only as a quarry primarily for the purpose of winning material for railway ballast, in breach of which the appellants have since 2012 used the land otherwise than primarily for winning railway ballast, in breach of the Environmental Planning and Assessment Act 1979 (NSW) ("the Planning Act"), s 4.2(1)(a).

(2) Set aside declaration (4) and order (5) made in the Land and Environment Court.

(3) Set aside declaration (6) made in the Land and Environment Court and in place thereof:

Declare that the consent did not extend to the excavation of rock on lot 6, DP 242210 and that the activity of the appellants in extracting rock from lot 6 is carried out without development consent and in contravention of s 4.2(1)(a) of the Planning Act.

(4) Set aside declaration (8) and order (9) made in the Land and Environment Court.