Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council [2019] NSWLEC 175

Hy-Tec Industries (Queensland) Pty Ltd v Tweed Shire Council [2019] NSWLEC 175

Condition 2 of the 2004 development consent is unambiguous and refers to in situ volume at the time of extraction. The Council's and EPA's attempt to interpret the volume limit as applying to 'bulked' material is contrary to the ordinary and objective meaning of the condition. Accordingly, the EPA's licence variation made on the basis of the Council's interpretation was legally erroneous and invalid.

Jurisdiction
Australia
Judgment Date
14 November 2019
Procedural Posture
Judicial Review / Principal Judgment
Outcome
Declarations and order granted for applicant; EPA's variation set aside; costs reserved
Legal Topics
['construction of Development Consent Conditions' 'judicial Review of Administrative Decisions' 'interpretation of Extraction Limits' 'environment Protection Licensing']
['planning and Environment Law' 'administrative Law'] ['construction of Development Consent Conditions' 'judicial Review of Administrative Decisions' 'interpretation of Extraction Limits' 'environment Protection Licensing']

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Procedural Posture

Judicial Review / Principal Judgment

Legal Issues

  1. 1 ['Interpretation of Condition 2 of development consent DA 04/162' "Whether extraction limits relate to 'in situ' or 'bulked' state material" "Validity of EPA's variation to Environment Protection Licence based on council's interpretation"]

Ratio Decidendi

Condition 2 of the 2004 development consent is unambiguous and refers to in situ volume at the time of extraction. The Council's and EPA's attempt to interpret the volume limit as applying to 'bulked' material is contrary to the ordinary and objective meaning of the condition. Accordingly, the EPA's licence variation made on the basis of the Council's interpretation was legally erroneous and invalid.

Court Disposition

Declarations and order granted for applicant; EPA's variation set aside; costs reserved

Orders

  • ['Declaration that DA 04/162 gives right to extract up to 200,000 m3 in situ per 12 months.' 'Declaration that DA 04/162 gives right to extract up to an average of 195,000 m3 in situ per year over any 3 year period.' "Order setting aside the EPA's 21 August 2019 variation to the Environment Protection Licence...