Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

Shoalhaven City Council v South Coast Concrete Crushing & Recycling Pty Ltd [2009] NSWLEC 197

The current use of the land is properly categorised as 'extractive industry' (permissible with consent) and a separate use as 'industry' (prohibited use). The use as an extractive industry is subject to existing use rights under the EPA Act, but any enlargement, expansion or intensification of the extractive industry after the cessation of immunity provided by s 74 of the Mining Act (i.e., after 23 November 2001) is not permitted. Consequently, extraction is limited to 7,000 tonnes per annum. The 2003 development consent only authorises the crushing and recycling of waste products, not blending with extracted material. Exportation of crushed/recycled waste products is permitted as...

Parties
Applicant: Shoalhaven City Council; First Respondent: South Coast Concrete Crushing & Recycling Pty Ltd; Second Respondent: Abib Pty Ltd
Jurisdiction
Australia
Judgment Date
14 December 2009
Procedural Posture
Civil (planning/environment) / Judgment on Separate Questions Regarding Existing Use Rights and Related Relief
Outcome
Declarations made on categorisation, existing use, consent limits, and output; question of final orders and discretion reserved pending further evidence/submissions.
Legal Topics
Existing Use Rights, Interpretation of Development Consent, Enlargement or Intensification of Use, Relationship of Mining Law and Planning Law, Definition of Extractive Industry and Industry, Exportation and Blending of Quarry Material
Planning and Environment Mining Law Administrative Law Existing Use Rights Interpretation of Development Consent Enlargement or Intensification of Use Relationship of Mining Law and Planning Law Definition of Extractive Industry and Industry +1 more

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Parties

Shoalhaven City Council

Applicant

South Coast Concrete Crushing & Recycling Pty Ltd

First Respondent

Abib Pty Ltd

Second Respondent

Procedural Posture

Civil (planning/environment) / Judgment on Separate Questions Regarding Existing Use Rights and Related Relief

Legal Issues

  1. 1 What is the correct categorisation of the current and historic uses of the site?
  2. 2 Is the current use unlawful in the absence of development consent or existing use rights?
  3. 3 To what extent is the current use authorised by the 2003 development consent?

Ratio Decidendi

The current use of the land is properly categorised as 'extractive industry' (permissible with consent) and a separate use as 'industry' (prohibited use). The use as an extractive industry is subject to existing use rights under the EPA Act, but any enlargement, expansion or intensification of the extractive industry after the cessation of immunity provided by s 74 of the Mining Act (i.e., after 23 November 2001) is not permitted. Consequently, extraction is limited to 7,000 tonnes per annum. The 2003 development consent only authorises the crushing and recycling of waste products, not blending with extracted material. Exportation of crushed/recycled waste products is permitted as...

Court Disposition

Declarations made on categorisation, existing use, consent limits, and output; question of final orders and discretion reserved pending further evidence/submissions.

Orders

  • Current uses categorised as 'extractive industry' and separate 'industry'.
  • 'Extractive industry' use may continue as an existing use under s 109(1) EPA Act, subject to limits.