Concrite Quarries Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97

Concrite Quarries Pty Ltd v Wingecarribee Shire Council [2000] NSWLEC 97

The modification application should be granted because the proposed quarry extension was substantially the same development as the development authorised by the existing consent, s 78A(8) and Schedule 3 did not require an environmental impact statement for an application to modify an existing consent rather than a development application, and no merit considerations justified refusal. The respondent was liable for the applicant's costs thrown away by the vacating of the 23 February hearing date because that was an exceptional circumstance, but not for the general hearing costs.

Jurisdiction
Australia
Judgment Date
04 May 2000
Procedural Posture
Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application to Modify a Development Consent / Ex Tempore Judgment After Hearing
Outcome
Appeal allowed; development consent modified; limited costs order made for costs thrown away by the vacated hearing date of 23 February 2000.
Legal Topics
['modification of Development Consent' 'quarry Extension' 'substantially the Same Development' 'designated Development' 'environmental Impact Statement' 'merits of Development Application' 'costs in Planning Appeals']
['planning and Environment Law'] ['modification of Development Consent' 'quarry Extension' 'substantially the Same Development' 'designated Development' 'environmental Impact Statement' 'merits of Development Application' 'costs in Planning Appeals']

Case Brief

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Procedural Posture

Appeal Under S 96(6) of the Environmental Planning and Assessment Act 1979 Against Deemed Refusal of an Application to Modify a Development Consent / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the development to which the consent as modified relates is substantially the same development within s 96(2) of the Environmental Planning and Assessment Act 1979.' 'Whether the modification application required an environmental impact statement as designated development under s 78A(8) and Schedule 3 of the Environmental Planning and Assessment Act 1979.' 'Whether merit considerations, including environmental impacts such as traffic, noise, visual impact and dust, justified refusal of the modification application.' 'Whether exceptional circumstances justified an order for costs in favour of the applicant.']

Ratio Decidendi

The modification application should be granted because the proposed quarry extension was substantially the same development as the development authorised by the existing consent, s 78A(8) and Schedule 3 did not require an environmental impact statement for an application to modify an existing consent rather than a development application, and no merit considerations justified refusal. The respondent was liable for the applicant's costs thrown away by the vacating of the 23 February hearing date because that was an exceptional circumstance, but not for the general hearing costs.

Court Disposition

Appeal allowed; development consent modified; limited costs order made for costs thrown away by the vacated hearing date of 23 February 2000.

Orders

  • ['The appeal is allowed.' 'The development consent number 001/93 issued 21 December 1993 is modified to extend extractive operations into an area of approximately 5,450 square metres on lot 2 deposited plan 537292 as shown in figure 1 of the statement of environmental effects dated November 1999, to allow for...