Aerolite Quarries Pty Ltd v Greater Geelong CC [2014] VCAT 1611

Aerolite Quarries Pty Ltd v Greater Geelong CC [2014] VCAT 1611 - VCAT 2014 case summary — Zoe

[27]

This actual proceeding is a review, brought by the company, under section 79 of the Planning and Environment Act 1987 (PE Act). It seeks a review of the failure of the responsible authority to determine the permit application within the prescribed time.
Aerolite Quarries Pty Ltd (the company) applied to the responsible authority for a permit for the use and development of the review site as a hard rock quarry and for permission to vary an easement across the land.
Notice of the application was given and a number of objections were received. A group of these objectors ultimately became respondents in the current review proceedings and were jointly represented.
Another objector was TOGSF Pty Ltd. This is a company of Mr John O'Grady, or a company in the affairs of which he has a substantial influence. It owns land on the south side of Brownes Road opposite the review site. Although the company may technically and legally be the owner of such land, it is clear that, in effect, it is Mr O'Grady's land and that he has a substantial interest in it. We find it convenient, for the purposes of these reasons, to refer to Mr O'Grady rather than his company (except if and when it is necessary to distinguish between the two).
Mr O'Grady is the treasurer and public officer of an incorporated association known as the Anakie Action Group Inc. He was represented both personally and in that capacity in relation to a preliminary matter determined at the beginning of the hearing of this case on 24 November 2014. That matter is no longer of importance but it concerned the setting aside of two summonses to witness, each directed to Mr O'Grady, one in his personal capacity and the other in his capacities in relation to the incorporated association. These summonses to witness were set aside.
It appears that a substantial campaign was organised in relation to opposition to the proposal. However, our task is to determine the proposal on its planning merits rather than on the basis of the number of objectors or objections or signatories to a petition. A valid point, indeed a valid objection, will be sustained though only one person may have raised it. Conversely, many supporters or repetitions of a point does not enhance its weight or value when assessed in terms of planning merit.
Planning officers of the responsible authority prepared a written report to inform and assist the responsible authority in making its determination on the application. That report[1] is, we find, a substantial, comprehensive and professional document. It contains a recommendation that a permit should be granted subject to various conditions.
Although the responsible authority did not determine the permit application within the prescribed time, it has nevertheless determined its attitude to it. It determined upon grounds of refusal in the following terms:
- (1) The proposal is contrary to clauses 11.07-4 (Environmental Assets) and 43.03 (Significant Landscape Overlay) of the Greater Geelong Planning Scheme due to the impacts the use would have on the landscape values of the Anakie Hills.
- (2) The proposal would have unreasonable amenity impacts on surrounding sensitive uses in relation to noise, dust, visual impact and an increase in traffic movements.
It was said that 'visual amenity' was a principal concern.
It follows that the responsible authority, in adopting this position, declined to follow the advice and recommendations of its professional planning officers. However, it should be noticed that it is perfectly entitled to do that. The responsible authority, being the council of the relevant municipality, is not expected to be a 'rubber stamp' necessarily approving the advice and recommendations of its officers. On the contrary, it is called upon to exercise its own judgement on such matters coming before it.
Although required, when it makes a determination within time, to state its grounds if it determines to refuse a proposal, it is not required to give reasons as are required of this Tribunal on review.
When the responsible authority failed to determine the matter within the time prescribed the company, as previously mentioned, brought these proceedings for a review.

[28]

Landscape considerations are important in this case. For that reason we consider it useful to set the scene broadly before focusing in upon the actual proposal and its ramifications.
The land to the south, east and north east of the review site is an extensive plain. These areas are located in a Farming Zone, so far as the Greater Geelong Planning Scheme is concerned. They are used for farming purposes, principally grazing and cropping. These areas were sometimes referred to, in the course of the hearing, as a basalt plain.
Now extinct volcanic activity has been important in the geological past. The most prominent features in the general area are the Brisbane Ranges to the west of the site and the picturesque You Yang Hills to the north east.
Closer at hand, and providing a backdrop to views of the area of the review site from the south and east are three lesser hills known as The Three Sisters.
The first and tallest of these is also known as Mount Anakie. It is the westernmost being located approximately north west from the review site.
The second and central 'Sister' forms part of the chain of three leading to the third sister which is located immediately to the north of the review site. Each of the sisters is a relatively low rounded hill and they are connected, one to the other, by lower saddle formations. Although modest, in comparison, for example, to the Brisbane Ranges or the You Yangs, these hills nevertheless make a positive contribution to the landscape in which they are set.
For the purposes of the present case we are considering particularly views from the south, south east and east, and then from the public realm constituted by the country roads running through those areas.
We appreciate, having viewed the sisters from various locations in the course of the accompanied inspection conducted in the course of the hearing, that photographs tend to do less than justice to these hills and to the contribution that they make to the landscape views concerned. In fact these features, though modest and relatively distant from most points of view, are nevertheless more prominent and more positive in their contribution than most photographic portrayals of them would suggest.
In the course of the hearing the sisters hills were often referred to, collectively or individually, as cones. None of them is strictly conical in shape.
The sisters hills are comprised principally of scoria.
Scoria is a valuable volcanic stone. A long standing quarry has been conducted, and is being operated eating into the eastern face of the third sister. The third sister is the one immediately to the north of the review site.
That scoria quarry is now being conducted by the company although it appears that others have conducted it in the past. The earliest planning permit tendered in evidence is number 3454 issued to Featherrock Quarries Pty Ltd via a previous municipality and responsible authority namely the Shire of Corio and its council. That permit is dated 11 December 1986 and it grants permission for an extension to an 'existing' quarry and associated works. That permit contains only four conditions the third of which refers to license conditions issued by the 'Extractive Industries Advisory Committee'.
In fact that quarry, and the proposed new one adjoining it require works authority and a work plan under what is now the Mineral Resources (Sustainable Development) A ct 1990 (MR Act). Work authority WA 225 currently applies to the scoria quarry on the third sister.
Another work authority, WA 9, exists in relation to a smaller area on the western face of the second sister.
The scoria quarry on the third sister has eaten into it substantially over the decades although the hill still remains as a feature in the land in its modified form. Permissions in relation to this long standing quarry appear to impose no limitations on the exploitation of the scoria reserve that it contains. We have not been pointed to anything that indicates otherwise. The possible ultimate removal of the third sister, or perhaps its reduction to a low mound not comparable with its present form or that of its siblings do appear to be contemplated so far as current planning permission is concerned. Some further secondary consent may be needed.
The third sister, and its quarry, are on Lot 4 of Plan of Subdivision 401334K. That Lot amounts to 97.47 hectares. Although not circular the allotment is closer to that shape than any other commonly recognised geometric shape.
It is one of six lots created by the subdivision. It is almost encircled by four of the other lots including the two (lots 2 and 3) constituting the review site in the present proceeding.
Lot 1 is irregular in shape and wraps around the northern end of the circle, between lot 4 and what is denoted on the Plan of Subdivision as an unmade government road.
Lots 2 and 3 of 64 and 66.49 hectares respectively are located side by side, each with frontages of 465 and 778.5m respectively to the northern side of Brownes Road. Brownes Road runs east to west from its 'T' intersection with Old Boundary Road to the east then to the hamlet of Anakie to the west. The settlement is perhaps 3km west of the review site and is not visible from it, nor is the review site visible from the main street of the hamlet.
Lot 2 on the subdivision has a short (211.43m) common boundary with lot 1 and continues to wrap around lot 4, that is, around its western side to where lot 2 meets the western side boundary of lot 3. The northern boundary of lot 3 continues to wrap around the southern side of the approximately circular lot 4.
It is not necessary to describe the small lot 6 of 5.112 hectares except to say that it forms part of the eastern boundary of lot 4 together with other land to its east not within the subdivision.
Access to lot 4 and the existing scoria quarry is not via the unmade government road to the north, nor via Brownes Road to the south, but by an east west access road (sometimes referred to as Featherrock Road) running it from Old Boundary Road. It runs parallel to and about 746.5m north of Brownes Road. It runs in from a 'T' intersection on the eastern side of Old Boundary Road. This access road appears on the Plan of Subdivision as an extension of lot 4 itself. On its southern side is lot 5. It adjoins the eastern side boundary of lot 3 and has frontages of 1179.1m and 746.5m respectively to the northern and western sides of Brownes Road and Old Boundary Road. It amounts to 92.64 hectares.
The Plan of Subdivision also depicts a power line easement (E-1) running from Brownes Road near the south western corner of lot 2, diagonally across that lot and then across a corner of lot 3 into lot 4. In the event of the current proposal proceeding this easement would need to be relocated to run, as we understand it, along and within the eastern boundary of lot 3.
Before leaving our description of the locality we will mention Mount Road. It runs north from a 'T' intersection with Brownes Road about halfway between the review site and Anakie hamlet. It runs north from that intersection to pass over the saddle between Mount Anakie and the second sister. Near to the that road, in the saddle area, there is a feature that was referred to as the 'maar'. It was suggested that this was once a volcanic outlet but at present it is a depression surrounded on all sides by higher land. It is thus a basin of internal drainage for a small surrounding catchment area. Although dry when inspected we do not doubt that it would contain water, at least temporally, in the event of a sufficient rain storm. It could be expected to contain water falling upon it and runoff from the surrounding high ground of its modest catchment. Its floor appears flat and may well be constituted of sediment accumulated in it over long periods of time. The floor of the maar has a different appearance to the sloping ground of the surrounding catchment. As there is no outlet, water accumulating there must disappear by evaporation or percolation through the floor of the maar or a combination of those effects. We do not know how porous the floor of the maar might be nor do we know how transitory the presence of water in the maar might be. It is visually remote from the review site with the second sister in between. In these circumstances the separation of 2km or more in a direct line is not relevant. The separation by road is considerable.
Fronting the east side of Mount Road and the backing onto the northernmost segment of the western side boundary of lot 2 there is a rectangle of land subject to a Heritage Overlay under the planning scheme. It is HO2 and contains the historically interesting Narada Homestead. It also contains one of 12 dwellings within 2km of the review site. Five of the eight have access via the unsealed Brownes Road and are setback from it by varying degrees.
No objection came from this location. We do not think the Heritage Overlay is an issue in this case and it was not pursued at the hearing.
Mr O'Grady aspires to a new house to be constructed more or less right on Brownes Road and directly opposite the proposed quarry.
The review site and all surrounding land, except for the existing quarry, is located in a Farming Zone under the planning scheme. Lot 4 is a Special Use Zone. The review site is a parcel of two allotments being lots 2 and 3 on the Plan of Subdivision previously mentioned. The combined frontage to the north side of Brownes Road is 1243.5m. But for the northern boundary the site would be a rectangle. The western side boundary of lot 2 and the eastern side boundary of lot 3 are at right angles to the alignment of Brownes Road. However, the combined northern boundary runs around the southern and half of the western side of the roughly circular existing quarry site. The western side boundary of lot 2 is 1614.6m in length whereas the eastern side boundary of lot 3 is only 176.1m. Altogether the whole is rather shaped like a vest or singlet that lacks its shoulder on one side. The combined northern boundary circle around the southern side of lot 4 with a narrow and tapering shoulder piece that runs up the western side until it meets its narrow common boundary with lot 1 further to the north.
The three sisters rise distinctly out of and above their surrounding plain areas. There is something of a transition between the relatively flat farmlands to the south and the hills themselves. The review site is in this transition zone but it cannot be called foothills or part of foothills. The review site is also relatively flat but is somewhat tilted to rise a little as it approaches the existing quarry site. During the hearing this area was referred to as the 'apron'.

[35]

We note particularly the policy implicit in the third item in the above list
Stone extraction, that is to say, quarrying[2], is a variety of Earth and energy resources industry. It is not specifically referred to in the purposes of the Farming Zone although it enjoys ample policy support which we will refer to in due course.
The purposes of the Farming Zone do not include residential use or any variety thereof. Indeed it has long been recognised that the proliferation of rural houses and the often associated fragmenting of farming land by subdivision (including residential excisions) are very seriously detrimental to the planned purposes of farming land. Decisions of this Tribunal and its predecessors to that effect are well known and date back for decades. The policy concerns about such developments and uses often appears, implicitly or explicitly, in planning scheme provisions. In this particular Farming Zone the concern received some expression from the circumstance that 80 hectares is the minimum lot size for subdivisions and for a rural house.
We emphasize that this does not mean that there is a right to subdivide land in this area into lots of 80 hectares and then to put a house on each. 80 hectares is the minimum size but it does not give any such right at all. On the contrary there would still need to be compelling planning justification for such further subdivision or additional houses.
No such proposal is currently before us and we are not in a position to determine the planning merits of any particular proposal that might come forward. However, Mr O'Grady has made applications of this sort. He or his company hold quite a bit of land to the south of Brownes Road, including an allotment exceeding 160 hectares on which there is an existing house. He wishes to subdivide this into two allotments with the house on one and with a view to erecting a house on the second located up near the Brown Road frontage.
Although some modern farm houses are built close to road frontages it has normally been more common, at least in the past, for farm houses to be set well back from road frontages and central to the areas to be farmed. It was pointed out on behalf of Mr O'Grady that the area on which he wishes to erect a house, which was pointed out in the course of the inspection, is chosen in the interests of views to the south. That, of course, is a residential consideration rather than a farm management one.
We will have need to mention the O'Grady proposal again. For the present we observe that we are in no position to assess its merits or to form a view as to whether there are circumstances that might justify subdivision and/or an additional house. In recent decades the trend has been, far from permitting fragmentation, for farm holdings to be consolidated so as to enable efficient (and even viable) working of larger areas rather than smaller ones. We merely note that we cannot presume that Mr O'Grady's proposed subdivision and house will obtain planning permission. However, that is another matter, and not our present concern.
We have mentioned that the review site and surrounding lands are in a Farming Zone. However, that is not true of the existing quarry site on lot 4. That area is a Special Use Zone under clause 37.01 of the planning scheme and, indeed, under schedule 7 of that zoning.
Schedule 7 is headed EARTH AND ENERGY RESOURCES INDUSTRY.
Earth and energy resources industry is a land use defined in the planning scheme as:

[53]

The review site is set in the midst of an extensive area that is subject to an Environmental Significance Overlay under clause 42.01 of the planning scheme. The purposes of such an overlay include the identification of areas where development of land may be affected by environmental constraints and to ensure that development is compatible with identified environmental overlays. Such identification appears in whichever schedule to clause 42.01 is relevant in the particular case. In this case it is schedule 4, and it is the identification of and influence of schedule 4 that applies to the extensive area just mentioned.
Clause 42.01-2 provides that a permit is required to construct a building or to construct or carry out works (unless the relevant schedule states otherwise).
Although clause 42.01-2 also refers to the need of a permit to remove, destroy or lop any vegetation, including dead vegetation, that is not so if an exemption under clause 42.01-3 applies. One of the exemptions is for Stone extraction being the use and development now proposed. The exemption applies if the vegetation is to be removed etc to enable the carrying out of Stone extraction in accordance with a work plan approved under the MR Act and authorised by a work authority granted under that Act. As previously mentioned, such a work plan and work authority under that Act are required before this proposal can proceed, quite apart from any planning controls.
Essentially then planning permission is required under clause 42.01-2 for the proposed works including excavation, rehabilitation and the construction of bunds in setbacks to provide visual or noise protection.
It is schedule 4 to the Environmental Significance Overlay that explains the purpose of the overlay. Clause 1 of schedule 4 contains an extensive and descriptive statement of environmental significance. It commences with the sentence 'The areas included within this overlay form part of the Victorian Volcanic Plain Bioregion'. The description refers to various aspects of flora and fauna which are not really relevant to the present case. The third paragraph of the statement of significance reads:

[63]

We recognise that the three sisters with their connecting saddles and skyline are significant elements that contribute positively to the landscape values of the area, particularly (so far as this case is concerned) from viewpoints to the south.
The sky line of the third sister has been compromised somewhat by the existing scoria quarry but that is not a matter that is before us.
As the schedule provisions recognise, it is important that new buildings and works should not compromise important aspects of this positive landscape. However, this proposal does not have that effect. Most of the works will be below the existing ground level. The stockpiling of material and the construction of bunds and rehabilitation are matters that can be appropriately dealt with in conditions and rehabilitation.
It was put to us without dissent that it is views from the public realm that are relevant in this connection. In this case the public realm is constituted by the various roadways all of which are at a considerable remove from the site. Although below natural ground level works would approach Brownes Road if the proposed quarry was to have an active life extending into the fifth and sixth stages.
The proposal is basically an inconspicuous removal rather than to build a conspicuous intrusion. It is proposed to remove part of the apron which, in our judgement, is not a significant part of the landscape or of the concerns of the Significant Landscape Overlay. The proposed removal, when viewed from relevant points would be minor to minimal and generally imperceptible. In our judgement the proposal does not threaten the landscape generally or in particular does not in relation to the three sisters hills, their intervening saddles or their skylines. We are not persuaded that there are any points of which the contrary would be true, and if there is such a point, its impact and importance must nevertheless be very minor. Significant impacts on significant landscapes do not include alterations that are very minor or imperceptible.
We note that the evidence of the expert witnesses called in relation to this issue agree that the effect on views from most view points would be minor to insignificant. Mr Czarny did claim a moderate effect from one location however we consider that to have been an overstatement.
We consider the proposal to be acceptable in terms of landscape considerations and the concerns of the Significant Landscape Overlay.
It will be apparent from what we have said that we do not uphold the first ground of refusal adopted by the responsible authority where it relates to landscape or relies on the Significant Landscape Overlay.
The responsible authority was not the only party to raise and seek to rely upon landscape considerations and we have taken all the evidence and submissions relating to this topic into consideration. However, what we have said so far indicates our reasons for discounting this ground of objection.
The first ground of the responsible authority also referred to clause 11.07-4 appearing in the state section of the planning scheme and dealing with environmental assets. It contains the admirable objective of protecting, restoring and enhancing the regions unique environment. Whilst this is a worthy and important consideration it does not imply that nothing can ever be done or that no permission should ever be granted or that this is the only planning value worthy of consideration.

[75]

We have mentioned that Mr O'Grady wishes to build a house on part of his company's allotment fronting the south side of Brownes Road and which has an area somewhat in excess of 160 hectares.
There is an existing house on the land. That house is set well back from Brownes Road. Mr O'Grady wishes to build right up on Brownes Road and approximately central to the frontage of the review site to the north side of that road. If there was a house in that position now and was to be taken into consideration in relation to the possible southwards extent of the extraction area that exclusion area might be greatly increased.
We have mentioned the concept of sensitive land uses. Land uses in this area are really farming purposes. However, some of the farm holdings have farm houses on them. Such houses can be regarded as ancillary to the farming uses thereof.
Although people residing in such house have to expect a more robust amenity appropriate to farming uses in farming zones they are still entitled to an amenity appropriate to those circumstances. They cannot expect residential amenity as can be expected to apply in a Residential Zone.
The current quarrying proposal does not presently contemplate the extraction of basalt from the south eastern and south western corners of the review site. These setbacks are to respect a 500m space between workings and existing houses.
Although it can be regarded as a virtue for such buffers can be wholly accommodated within the land proposed to be developed, that is not essential. Indeed it would be a highly restrictive requirement in many circumstances. Although attention can be paid to the location of existing houses, that does not mean that amenity appropriate to a house, even a farm house, need be extended to every corner and edge of a farming property.
Mr O'Grady's proposed house would intrude considerably and he apparently wants it to be taken into consideration as might be the case in relation to an existing house.
We do not think it appropriate to be concerned about his proposed house or to regard it as a reason to refuse or inhibit the current proposal. There are several reasons for this.
One is that the quarry proposal enjoys policy support whereas an additional rural house does not. On that contrary, additional rural houses, and rural subdivisions which might accommodate or allow them are basically contrary to important recognised principles of country planning.
Sometimes a farm house is necessary to enable a farm property to be worked, although, with modern cars, roads and the like that is a diminishing consideration. Furthermore, modern farming requires the use of larger areas rather than that they should be fragmented. Although Mr O'Grady has made permit applications in the interest of his project, and although we are not in a position to make a decision in relation to them, on the face of it, and without other planning considerations of which we are unaware, it may be unlikely that he will receive the planning permissions that he desires. He would need to make out a case on planning principles and policies why permission should be granted. It is most certainly not sufficient to merely point to being able to achieve a lot size exceeding the statutory minimum. That really only means that you cannot go below the minimum, no matter how strong your case for doing so might be having regard to other planning considerations. Meeting the minimum grants no right and more would be required.
Mr O'Grady's permit applications were made shortly after that of the company giving rise to this current proceeding, although one of them was at or after the current proceeding commenced.
On his behalf an 'agent of change' argument was raised. This suggested that precedence should be given, in the event of concurrent proposals for incompatible uses, to the one that was first established or commenced. The so called ballet school case namely Peters v City of Caulfield & Burstin[4] is an example of this. In that case there was an existing brothel which resisted a proposed ballet school for young girls to be established nearby. It was held that there was a degree of incompatibility and the brothel was there first.
In the present case, although the company has its scoria quarry further away, neither the basalt quarry nor the proposed O'Grady house are currently in existence. The applications were made close together in terms of time. Nevertheless, the quarry application was made first. It was put as a question as to whether one or the other should be regarded as the agent of change or whether both should have equal status.
We regard the current application as having come first and as being entitled to be considered on its merits and we do not give weight to the suggested inhibition relied upon Mr O'Grady in the form of his residential proposal.
This is an additional point to the one about policy. We should not be taken as necessarily accepting the agent of change argument as a significant factor in favour of Mr O'Grady if he had applied first.

[79]

Consideration has been given as to whether there should be a cultural heritage management plan under the Aboriginal Heritage Act 2006. The question has been considered, but it is common ground that there is no mandatory legal requirement for such a management plan in relation to this proposal.
It was suggested, on behalf of Mr O'Grady, that the company might prepare such a plan voluntarily. If it voluntary, then that is an option for the company. To date it has not chosen to do so.
We are not completely certain as to whether we have misunderstood the way in which this matter was put to us. Was it being suggested that we should impose a requirement, by way of a condition or a condition precedent to making a decision, that a 'voluntary' plan be prepared? If so, in the absence of a statuary requirement, we decline that invitation. In doing so we note, by the way, that if we compelled it, it would not technically be voluntary.
Evidence was called on behalf of Mr O'Grady as to whether it is possible that some site of Aboriginal cultural heritage significance could be found on the site. That, of course, is always possible. However, the same can probably be said for nearly all of the land in Victoria. It is only in particular circumstances that the preparation of such a plan is mandatory. The legal requirement, where one exists, is imposed by a legislative the decision of the Parliament in the framing the law. In the present circumstances we do not propose to overrule or second guess such legislation.
Although expert evidence was given on either side in relation to this matter, we do not consider that it moves the situation from possible to probable. On the basis of the evidence we do not consider it probable that any such sites exist on the land and we do not propose to impose a speculative requirement in the circumstances.
There are recognised circumstances where Aboriginal sites of various sorts are more likely to be found. Places near the sea or waterways and close to sources of food are obvious possibilities. Midens accumulate adjacent to good camping areas but such places will generally have good access to water, shelter and food. Sources of materials that are useful for other reasons, including for trade, can also be important. Examples might be places where ochre or stone suitable for making stone tools are available.
This is not intended to be an exhaustive list. Important sites might occur where none of these circumstances exists. Some area or feature of particular interest, for one reason or another, might be important as an Aboriginal sacred site or a place important for ceremonial purposes. However, the legislation does not require, and we do not propose to require, further investigation where the presence of currently unknown locations of significance are merely possible, but nevertheless improbable.
In coming to this conclusion we note that the legislation imposes a legal obligation to report the matter immediately if evidence of such a site emerges in the course of any works carried out on the land or in connection with the proposal.

[80]

Although people residing in nearby farm dwellings and work nearby farm land cannot they expect the sort of amenity that would be appropriate in a prime residential area, or any residential area for that matter. That does not mean that they must put up with anything or anything. As with the law of nuisance at common law, what is acceptable as amenity in planning terms must take account of circumstances including the zoning and use of land, the primary purposes of such zoning and allowable uses. Account must also be taken of context, distance, degree, frequency and timing.
The quarrying of basalt would involve occasional blasting and rock drilling, movement of material on internal haul roads, stone crushing, grading and transport of product from the site in large vehicles that must come before they can go.
Rock drilling can certainly be noisy although that is not likely to be a problem when taking place within an excavation below original ground level. Works, including the removal of top soil and overburden, and of drilling for initial basalt removal must take place at more exposed higher levels. However, various mitigation devices and the use of acoustically shielded drills and other machinery are appropriate.
Blasting (and drilling) can generate dust and may cause vibration and the ejection of so called 'fly rock'. Apparently blasting would not be frequent. There was no disagreement when it was suggested several times that it might occur as infrequently as twice a year. Blasting is, of course, a potentially dangerous activity. It is closely regulated and requires the participation of skilled and qualified operatives. It is not our role, as a planning tribunal, to take over supervision in that field. We note that this, and other production activities are regulated under other legislation. It is sufficient that we look to the buffer distances suggested in planning documents and deal with potential nuisances, as appropriate, in permit conditions.
Evidence in relation to dust referred to fine particles and coarser so called 'nuisance dust' but mitigation and monitoring are appropriate. Notwithstanding what we have described as the robust environment of farming, which can involve the emission of noise, it is also possible for an industry in a farming locality (such as a quarry) to generate unreasonable noise at unreasonable times. In this connection the Environment Protection Authority Guideline NOISE FROM INDUSTRY IN REGIONAL VICTORIA publication 1411 October 2011 recommends maximum noise levels from commerce, industry and trade premises in regional Victoria. The proposed conditions can impose restrictions as to hours and otherwise relevant to potential noise problems.
A point was taken that conditions might be imposed but not observed. All planning permits proceed on the basis that conditions will be complied with or enforced. If it were not so, very few permits could be granted. Enforcement, in the first place, is a responsibility of the responsible authority pursuant to s 14 of PE Act. However, others may also take enforcement proceedings. Enforcement order applications under s 114 PE Act can be commenced by 'any person'. Members of the public can prosecute for offences of a public nature.
It was suggested that conditions may be difficult to enforce. No doubt cases vary in this respect. However, we would not impose conditions that we consider to be impossible to comply with. We would also be cautious about a conditions that was important where we thought compliance or enforcement was improbable. Those circumstances do not arise here. We are content to proceed on the usual basis that conditions will be complied with, or if not complied with, then enforced.
Traffic was also raised, including traffic by trucks capable of transporting stone and processed basalt. So far as haul trucks within the site, and other vehicles and mobile machinery for that matter, they can be subject to restrictions on times of operation and, where necessary, treatment of unsealed roads.
It is not clear as to whether there would be a perceptible increase in traffic on external public roads. The company has suggested that there may be more a shifting balance between the amount of scoria produced and new production of basalt, but there is the potential for increased traffic, including increased truck traffic on such roads.
There is no basis for supposing that any foreseeable increase in such traffic would be beyond the carrying capacity of the relevant road network. Of course some roads, including some rural roads, are much busier than others. It depends on the demand put upon them having regard to activities along the way or at either end. It does need to be appreciated that the roads are installed and maintained to serve the public, including commerce and industry. So far as rural roads are concerned there are not normally restrictions on hours or numbers of vehicles. Milk tankers, cattle trucks and the like may rattle by in the early hours of the morning. No doubt houses constructed close to roads, rather than deeper within farm properties, are more susceptible.
We consider that reasonable projections of usage related to the proposed quarry are quite within acceptable grounds for the roads concerned.

At a glance

Court

Decision date

Source

Judgment (154 paragraphs)

Aerolite Quarries Pty Ltd v Greater Geelong CC [2014] VCAT 1611 (24 December 2014)

Parties

Legislation Cited (5)