Australia, May 23 -- New South Wales Land and Environment Court issued text of the following judgement on April 23:

1. Monaltrie Area Community Association Incorporated ('MAC') has brought Class 4 judicial review proceedings challenging the determination of Lismore City Council ('Council') on 10 October 2023 to approve a modification application lodged by Michael Bruno Santin ('Santin') to extend the life of a quarry known as Riverbank Quarry at 72 River Bank Road, Monaltrie ('site') for a period of 12 years.

2. MAC seeks declaratory relief that the approval is invalid and consequential relief restraining Santin from acting on the modification.

3. MAC advances five grounds of review. Ground 1 concerns Council's power to approve the modification on the basis that the original consent had lapsed and could not be modified. Ground 2 concerns a failure to properly consider the acoustic impacts of the modification. Ground 3 concerns Council's lack of the requisite state of satisfaction that the development the subject of the modification was substantially the same development as the development the subject of the original consent. Ground 4 concerns the unreasonableness of any state of satisfaction reached upon Ground 3. And, Ground 5 concerns Council's lack of power to impose part of a condition which provides for subsequent variation of the modified development's operating hours.

4. Both Santin and Council, as the first and second respondents, respectively, opposed the relief sought by MAC. Council was the active respondent, with Santin adopting the position and submissions of Council.

5. For the reasons that follow, I find that MAC has established its first ground of review that Council did not have power to approve the modification application because the original consent had lapsed, and as such, MAC is entitled to the relief it has sought in its amended summons filed 3 May 2024.

Structure of judgment

6. The reasons for judgment are structured as follows. I will first summarise the salient background facts, which are largely uncontentious. I will then outline the grounds of review raised by MAC and consider the parties' submissions. Further facts, some controversial, will be noted in my consideration of the discrete grounds. While there is some overlap between a number of MAC's grounds, given the manner in which the parties have presented their arguments and the applicable legal principles, with some exception in relation to Ground 3 and Ground 4, it is necessary to deal with each ground separately which involves some unavoidable repetition in my consideration.

Background

7. On 12 May 1993, Council granted development consent for an extension to an existing hard rock quarry extracting columnar basalt in the northern rear portion of a 16.3ha site at 72 River Bank Road, Monaltrie, located approximately 6km south of Lismore ('Original Consent').

8. The Original Consent contained the following conditions:

"...

2. This consent shall permit quarrying for not more than twenty-five (25) years from the date of the issue of the Section 94 Notice of Determination.

3. This consent shall lapse on 30/12/2018 at which time extraction shall have ceased and the site restored in accordance with the detailed Plan of Management.

..."

9. It is agreed between the parties that the date of commencement pursuant to the Original Consent was 12 May 1993.

10. The Original Consent was modified on 8 March 1994, 7 May 1998, 13 May 2005, 5 December 2005 and, most relevantly in this case, 28 July 2006 ('2006 Consent').

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1966068abeee07ffc7b9cd74)

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