The Anson Bay Company (Australia) Pty Limited & Anor v Bob Blakemore Excavations Pty Ltd & Anor [1989] NSWLEC 231

The Anson Bay Company (Australia) Pty Limited & Anor v Bob Blakemore Excavations Pty Ltd & Anor [1989] NSWLEC 231

The pre-1949 extraction of gravel was not a separate or dominant purpose but incidental to coal mining; only small areas of the land were physically used for such incidental extraction. Consequently, there are no existing use rights to conduct an extractive industry across the whole property, and the present activities breach the Environmental Planning and Assessment Act and the relevant planning instrument.

Parties
First Applicant: The Anson Bay Company (Australia) Pty Limited; Second Applicant: Lake Macquaire City Council; First Respondent: Bob Blakemore Excavations Pty Ltd; Second Respondent: Doug Blakemore Excavations Pty Ltd
Jurisdiction
Australia
Judgment Date
29 August 1989
Procedural Posture
Civil / Judgment
Outcome
Declarations made that use of the whole of the land for extractive industry is unlawful, with orders restraining such use except for limited continued extraction in a part of area 'A' for a limited period subject to conditions to be determined. Orders stood over for Short Minutes.
Legal Topics
Existing Use Rights, Prohibited Land Use, Extractive Industry, Injunctive Relief, Discretion Under the Environmental Planning and Assessment Act
Environmental Law Planning Law Existing Use Rights Prohibited Land Use Extractive Industry Injunctive Relief Discretion Under the Environmental Planning and Assessment Act

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Parties

The Anson Bay Company (Australia) Pty Limited

First Applicant

Lake Macquaire City Council

Second Applicant

Bob Blakemore Excavations Pty Ltd

First Respondent

Doug Blakemore Excavations Pty Ltd

Second Respondent

Procedural Posture

Civil / Judgment

Legal Issues

  1. 1 Whether the use of the land for extractive industry was a lawful 'existing use' under the Environmental Planning and Assessment Act as at the appointed date
  2. 2 Whether extraction activities prior to 10 March 1949 constituted a separate use or were merely incidental to coal mining
  3. 3 What discrete areas, if any, were subject to lawful existing use rights

Ratio Decidendi

The pre-1949 extraction of gravel was not a separate or dominant purpose but incidental to coal mining; only small areas of the land were physically used for such incidental extraction. Consequently, there are no existing use rights to conduct an extractive industry across the whole property, and the present activities breach the Environmental Planning and Assessment Act and the relevant planning instrument.

Court Disposition

Declarations made that use of the whole of the land for extractive industry is unlawful, with orders restraining such use except for limited continued extraction in a part of area 'A' for a limited period subject to conditions to be determined. Orders stood over for Short Minutes.

Orders

  • Declarations regarding unlawfulness of extractive use over whole land except identified part of area 'A'
  • Orders restraining such use, suspended to allow continued extraction in part of area 'A' for limited period and on conditions to be settled