Council rocks quarry with legal confusion

The council has deferred a decision on whether to allow a crusher, screen and relocation of a machinery shed at the Winston Road, Eagleton quarry, which first gained approval in 1978. 
This is the same quarry that mayor Bruce MacKenzie and the council's previous head of planning, David Broyd, were at loggerheads about in March 2012 after a fine was issued for the use of a crusher.
The owner of the quarry was hit with the $3000 fine for operating a crusher without consent, despite the fact that the council had admitted to purchasing gravel from the business for almost 16 years.
Now a fight has erupted over legal advice alleging the site's approval has expired. The new advice said the 1978 approval was limited to five years, contradicting advice given to the council in 1987 that said the consent was not limited.
"Since that time, and until the most recent legal advice, staff have advised the quarry operator in writing and verbally that the quarry consent remained valid," a report to councillors said. "This inconsistency or differing legal opinion conveyed to the owner/operator is of critical importance."
Council staff recommended the application for the crusher and screen be refused because it is an accessory to unauthorised activity on the land.
"The recent legal advice differs to the legal advice obtained from a different legal firm in 1987 where they advised that the consent did not limit the development to five years," the report stated. 
But Cr MacKenzie said he would not support a move to see the site shut. "My standing is that it seems funny … for 16 years or 20 years it's been all right and all of a sudden it's not," he said. "It has been an asset in Port Stephens for 16 years. I can't vote to close it down."
Managing non-compliance
The council report states that the current Development Application (DA) was lodged in November 2012 and council wrote to the operator in January 2013 to advise that quarry operations should cease and the applicant should consider withdrawing the application as it relied on the existence of a current quarry consent.
The operator's solicitor then invited council to initiate a class four action in the Land and Environment Court if they believed the consent to be valid.
Cr Geoff Dingle said he cannot understand why council is not taking action against the quarry operators.  He said the quarry's operation was separate to the crusher application and the alleged lack of approval should be enforced immediately. He also claimed the business is undertaking illegal crushing and screening, which is having a detrimental effect on local residents.
Dingle said his concerns are supported by legal advice provided to council but he believes the mayor is pressuring management not to do anything to stop the quarry's operation. 
"The management are telling me that their compliance officer has prepared a notice of intention to serve and order so they should serve an order," he said. "Under the statutory requirements, council is required to manage non-compliance in the community and they are not doing it because the mayor and his supporters are pressuring them to back off." 
Dingle alleged staff had been pressured by some councillors to allow the site to keep operating during the interim.
General manager Peter Gesling refuted Cr Dingle's allegations. He said staff were working on "a variety of complex compliance matters" associated to the quarry, separate to its approval.
"The council resolved to defer their consideration on the validity of consent pending the opportunity for the owner/operator to provide further information to
council at its next council meeting," Gesling said. 
Quarry requested Port Stephens’ council to comment on what the next step was and whether it would allow the quarry to operate while these issues are resolved. The council declined to comment.
Sources: Newcastle Herald, ABC News, Port Stephens Examiner, Port Stephens Council

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