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

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

The appeal is dismissed with orders varying certain Land and Environment Court declarations and injunctions; the 1991 development consent limited the quarry to primary production of railway ballast on lot 5 (not lot 6), with a condition limiting road transport of products to not greatly more than 30% without Council approval. The appellants breached the consent by extracting and processing material for other purposes and transporting excessively by road. The Environment Protection Authority's variation of the environment protection licence was invalid, having not met statutory preconditions (ss 50(2), 58(6)). Injunctions are stayed subject to conditions.

Parties
First Appellant: Hunter Industrial Rental Equipment Pty Ltd; Second Appellant: Buttai Gravel Pty Ltd; First Respondent: Dungog Shire Council; Second Respondent: Environment Protection Authority
Jurisdiction
Australia
Judgment Date
20 June 2019
Procedural Posture
Appeal / Court of Appeal Judgment
Outcome
Appeal dismissed, orders varied
Legal Topics
Development Consent, Conditions of Consent, Environmental Impact Assessment, Existing Use Rights, Variation of Environmental Protection Licence, Judicial Review, Planning Regulation
Environment and Planning Administrative Law Development Consent Conditions of Consent Environmental Impact Assessment Existing Use Rights Variation of Environmental Protection Licence Judicial Review +1 more

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Parties

Hunter Industrial Rental Equipment Pty Ltd

First Appellant

Buttai Gravel Pty Ltd

Second Appellant

Dungog Shire Council

First Respondent

Environment Protection Authority

Second Respondent

Procedural Posture

Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether existing use rights qualified the effects of the 1991 development consent
  2. 2 Validity and conditionality of the grant of development consent
  3. 3 Construction and scope of development consent by reference to application and environmental impact statement

Ratio Decidendi

The appeal is dismissed with orders varying certain Land and Environment Court declarations and injunctions; the 1991 development consent limited the quarry to primary production of railway ballast on lot 5 (not lot 6), with a condition limiting road transport of products to not greatly more than 30% without Council approval. The appellants breached the consent by extracting and processing material for other purposes and transporting excessively by road. The Environment Protection Authority's variation of the environment protection licence was invalid, having not met statutory preconditions (ss 50(2), 58(6)). Injunctions are stayed subject to conditions.

Court Disposition

Appeal dismissed, orders varied

Orders

  • Subject to order 2, dismiss the appeal.
  • Set aside certain declarations and orders of the Land and Environment Court and substitute declarations regarding the purpose, area, and conditions of consent for quarrying.