Ms Michelle Quigley QC, barrister, appeared with Ms Marita Foley and Ian Munt, barristers on the instructions of Equipe Lawyers. They presented written and oral submissions and called a number of expert witnesses who gave oral evidence in the course of which each adopted a written report circulated prior to the hearing. These expert witnesses were:

A further expert report of Paul C. Kelly was circulated but, as no party wished to cross examine him, his report was merely tendered.

Mr Greg Tobin, solicitor, of Harwood Andrews, solicitors, appeared for the responsible authority. He presented written and oral submissions and tendered a volume of relevant documents.

Ms Juliet Forsyth, barrister, appeared on the instructions of Rigby Cooke solicitors for TOGSF Pty Ltd. She presented written and oral submissions and called four expert witnesses. Each gave oral evidence in the course of which a written report that had been circulated prior to the hearing was adopted. These witnesses were:

Craig Czarny, urban design and landscape consultant;

Mr Matthew Townsend, barrister appeared on the instructions of his clients for the respondent objectors Marie Beggs, Helen Tucker, Brian Matthews and Stephen Connor. He produced and tendered a volume containing 'Objector Submissions' containing written submissions of his clients just mentioned and other respondent objectors who read out or spoke to their written submissions in that volume. They were Peter Sammut, Helen Tucker, Marie Beggs, Andrew Tucker, Stuart Nicolson, Brian Matthews, Heather O'Shannessey, Stephen Connor, Steven Beggs, Rod Phillips, Sheryl Anderson, Tim Anderson and Jenny Phillips. Mr Townsend also referred to and tendered in the volume of objector submissions further written submissions of people who did not appear namely Heath Menhennet on behalf of the Anakie Football and Netball Club Inc, Sue Shanley, Peter Shanley, Andrew Phillips, Richard Kelsall and Howard Patterson.

Mr Townsend also presented written and oral submissions.

Mr NJ Tweedie SC, barrister, appeared on the first morning of the hearing on instructions of Maddocks, solicitors, for the Anakie Action Group Inc in relation to a witness summons that had been served upon Mr John O'Grady as treasurer and public officer of the Anakie Action Group Inc. He appeared to submit that the summons to witness should be set aside. A second summons to witness had been served on Mr O'Grady in his personal capacity. At 11.12 am on the first morning of the hearing Megan Schroor, a solicitor of the firm of Rigby Cooke, appeared for Mr O'Grady personally in relation to that second summons. However, after a brief adjournment Mr Tweedie proceeded to represent Mr O'Grady both personally and as treasurer and public officer of the incorporated association.

Various plans, photographs and other documents were tendered in evidence. The evidence and submissions in documentary form have been retained on the file of the Tribunal.

Application under section 79 of the Planning and Environment Act 1987 for review of the failure of the responsible authority to grant a permit within the prescribed time.

Use and development of the land as a quarry and variation of an easement.

Farming Zone (Schedule 1) and subject to an Environmental Significance Overlay (Schedule 4) and Significant Landscape Overlay (Schedule 5) under the Greater Geelong Planning Scheme.

Lots 2, 3 and part of lot 4 on Plan of Subdivision 401334K being the land (which is in common ownership) contained respectively in Certificates of Title Volume 10291 Folios 467, 468 and 469 respectively.

An irregularly shaped parcel of land of approximately 1.24km with a frontage to the north side of Brownes Road with an area of 130.49 hectares.

Permission under clauses 35.07-1 and 35.07-4 (Farming Zone provisions) for the use and development of land for a quarry.

Permission under clause 43.01-2 (Environmental Significance Overlay provisions) and 42.03-2 (Significant Landscape Overlay provisions) for the development of land as a quarry.

Permission under clause 52.08-1 to use and develop land for earth and energy resources industry.

The first morning of the hearing was occupied in dealing with an application where orders were sought for the setting aside of two summonses to witnesses. Each of these summonses was directed to and served upon Mr John O'Grady. One was in his personal capacity and the other was in his capacity as treasurer and public officer of the Anakie Action Group Incorporated.

Mr NJ Tweedie SC appeared for him in that second capacity, and ultimately in both capacities, seeking to have the summonses set aside. There was an appearance announced at 11.12 am on the first day of hearing by Megan Schroor, solicitor, of Rigby Cooke, solicitors, for Mr O'Grady in relation to the summons served upon him in his personal capacity but shortly thereafter she relinquished that responsibility to Mr Tweedie.

After hearing argument orders were made setting aside both summonses. Neither Mr Tweedie nor Ms Schroor continued their appearances after that matter was dealt with.

An inspection of the land and locality was carried out on the second day of hearing in the presence of representatives of the parties.

1. This proposal is for the use and development of land for a basalt quarry on what is, at present, farming land to the east of the hamlet of Anakie.

1. 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.
2. 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.
3. 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.
4. 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).
5. 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.
6. 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.
7. 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.
8. 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.
9. It was said that 'visual amenity' was a principal concern.
10. 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.
11. 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.
12. When the responsible authority failed to determine the matter within the time prescribed the company, as previously mentioned, brought these proceedings for a review.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. The sisters hills are comprised principally of scoria.
11. 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.
12. 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'.
13. 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.
14. Another work authority, WA 9, exists in relation to a smaller area on the western face of the second sister.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. Mr O'Grady aspires to a new house to be constructed more or less right on Brownes Road and directly opposite the proposed quarry.
28. 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.
29. 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'.

1. It is proposed to extract basalt from approximately 104 hectares of this site of just over 130 hectares. Works would not come closer than 30m to any of the boundaries and the south eastern and south western corners are not proposed to be worked so as to maintain 500m buffer distance to the nearest dwellings.
2. Extraction is contemplated over six stages which could run into the next century, and perhaps the one beyond, if extraction continued for that length of time.
3. The second stage is proposed to be at the highest part of the site namely the shoulder area closest to the boundary with lot 1.
4. The first stage would be the next area to the south of the second. Part of the idea is that, as the first stage is excavated plant and works associated with the quarrying and processing of basalt can take place on the floor of the excavation in stage 1 below original ground level. As work in that area concludes it would proceed with quarrying in stage 2.
5. There is an advantage in the proximity of the existing scoria quarry. Various facilities and equipment associated with the existing quarry, including the access road, can be utilised in relation to the old and the new works. There are clearly efficiencies to be derived by such arrangements and it enables the company to adjust production as between scoria and basalt according to needs and market demands.
6. Hard rock quarrying would involve blasting from time to time and rock drilling to enable the placing of blast charges. Material thus freed would be processed through stone crushing to various grades before or after which it may be conveyed about on internal haul roads. The export of processed material from the site would be, as now, via the access road (that is Featherrock Road) to Old Boundary Road, and not along Brownes Road.
7. At present the review site is used for farming purposes mainly grazing.

1. The review site and all surrounding land, with the exception of the existing quarry, is in a Farming Zone.
2. Farming, including farming of land in farming zones, has to be regarded as robust rather than as a quiet rural or retreat. It is for this reason that such zoning is frequently thought to be suitable for quarrying activities. Of course, quarrying can only take place where the resource to be won is available. Some quarries are or have been in urban areas but quarrying is, generally speaking, more comfortably accommodated in farming areas like this one.
3. Unfortunately, from a country planning point of view, some people are attracted to use farming land for residential purposes and then seek to confine and hamper farming activities in the very places where they are planned to take place. Of course differing districts vary as to the type of farming and the type of activities to be carried on. Nevertheless, the generation of noise, dust and vehicles on private land and country roads are manifestations of farming and have to be accepted. Vehicles of various sizes, but including large tankers, cattle trucks and vehicles moving farm produce or bringing farm requirements are commonplace. Depending on circumstances vehicles and equipment are used regularly, intermittently or seasonally at all hours of the day and night. Dust is generated by vehicles and unsealed roads, ploughing, harrowing, harvesting, spreading of fertilisers by a vehicle, crop dusting and so on.
4. The purposes of the Farming Zone, found in clause 35.07 of the planning scheme (in addition to the general purpose applying to all zones) are as follows:

To encourage the retention of productive agricultural land.

To ensure that non-agricultural uses, including dwellings, do not adversely affect the use of the land for agriculture.

To encourage the retention of employment and population to support rural communities.

To encourage the use and development of land based on comprehensive and sustainable land management practices and infrastructure.

1. We note particularly the policy implicit in the third item in the above list
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. Schedule 7 is headed EARTH AND ENERGY RESOURCES INDUSTRY.
10. Earth and energy resources industry is a land use defined in the planning scheme as:

Land used for the exploration, removal or processing of natural earth or energy resources. It includes any activity incidental to this purpose including the construction and use of temporary accommodation.

1. 'Natural earth' here includes stone.
2. There are several subcategories of this land use including 'Stone extraction'.
3. Stone extraction is defined as follows:

Land used for the extraction or removal of stone in accordance with the Mineral Resources (Sustainable Development) Act 1990.

1. The purpose of this zone as recorded in the relevant schedule reads as follows:

To recognise or provide for the use and development of land for earth and energy resources industry.

To encourage interim use of the land compatible with the use and development of nearby land.

To encourage land management practices and rehabilitation that minimises adverse impact on the use or development of nearby land.

1. We note that the proposed quarry would not only be regulated by the planning laws but, as previously mentioned, and as applies to the existing quarry, by a work authority and a work plan required under the MR Act. This enables ongoing regulation and ultimately rehabilitation of land quite apart from a planning permit and its conditions.
2. Both those laws and planning permission can be expected to contain rehabilitation requirements pursuant to which the review site would progressively or ultimately be rehabilitated for farming purposes. We mention this because the second purpose of the Farming Zone mentioned above includes the encouragement of the retention of agricultural land. That is a very appropriate purpose in itself, but in the event of land being temporarily withdrawn from agricultural use to enable some other justified activity it is nevertheless relevant that the withdrawal should be temporary and the land ultimately restored in accordance with the purposes of that zone.

1. Having mentioned this concept of Earth and energy resources industry we refer to clause 52.08 of the planning scheme dealing with that topic and also clause 52.09 dealing with stone extraction and extractive industry interest areas.
2. The purposes under clause 52.08 are:

To encourage land to be used and developed for exploration and extraction of Earth and energy resources in accordance with acceptable environmental standards.

To ensure that mineral extraction, geothermal energy extraction, greenhouse gas sequestration and petroleum extraction are not prohibited land uses.

To ensure that planning controls for the use and development of land for the exploration and extraction of Earth and energy resources are consistent with other legislation governing these land uses.

1. Under clause 52.08-1 a permit is required for Earth and energy resources industry unless the table in that clause provides the contrary. A permit is not required for Stone extraction if it complies with s77T of the MR Act.
2. In relation to clause 52.09 the purposes are:

To ensure that use and development of land for Stone extraction does not adversely affect the environment or amenity of the area during or after extraction.

To ensure that excavation areas can be appropriately rehabilitated.

To ensure that sand and stone resources, which may be required by the community for future use, are protected from in appropriate development.

1. That last purpose might include protection from inappropriately close residential developments. It gives preference to stone extraction over the intrusion of house that might inhibit it.
2. The clause also contains provisions in relation to application requirements where an application might be necessary although the exemptions of clause 52.08-1 also apply.
3. The provisions apply for planning permit applications to use and develop land for stone extraction, to use or develop land within an extractive industry interest area or to use or develop land within 500 metres of stone extraction.

1. 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.
2. 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).
3. 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.
4. 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.
5. 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:

The landscape consists of undulating volcanic plains with red duplex soils. The Werribee and Little Rivers have incised steep and sometimes spectacular gorges into the basalt plain. The scoria cone of Mount Anakie is a significant landscape feature. A band of Tertiary sediments is located along the western edge of this area.

1. It is interesting to note that that this reference to landscape refers particularly to Mount Anakie rather than to the three sisters collectively or either of the other two individually. Mount Anakie, the first sister, is certainly the most prominent of them.
2. Clause 2 of schedule 4 refers to a number of environmental objectives to be achieved. These concentrate on questions of native vegetation and native fauna although the second of them reads:

To enhance the environmental and landscape values of the area.

1. Of course the clearing, development and use of land for farming has significantly altered landscape values in the past. Some adjustment of the balance in this respect can be achieved by suitable sensitive landscaping progressively and in rehabilitation.
2. Although the Environmental Significance Overlay makes some passing reference to landscape it is principally concerned with other matters. The question of landscape features prominently in the grounds adopted by the responsible authority and it is the Significant Landscape Overlay that is more to the point in this respect.

1. The Significant Landscape Overlay is created under clause 42.03 of the planning scheme. As its name suggests, this is the more appropriate overlay control so far as landscape considerations are concerned.
2. As with the Environmental Significance Overlay, clause 42.03-2 requires planning permission for the construction of buildings and the carrying out of works. Again no permit is needed in relation to vegetation because of a similar exemption to that applicable under the other overlay.
3. Schedule 5 to the overlay, the relevant one for present purposes, is headed 'Edges of the Brisbane Ranges and Anakie'.
4. The statement of the nature and key elements of landscape appear in clause 1 of schedule 5 in the following terms:

The eastern edges of the Brisbane Ranges, including the Rowsley Scarp and its foothills and the granitic and scoria Anakie Hills are visually prominent landscape features affording views of the plains to the east. These locations contain a mix of cleared land contrasting with substantial vegetation cover. The area has a high scenic quality and its visual exposure makes it susceptible to vision intrusion from inappropriate development.

1. This statement seems to emphasise the importance of views of the plains to the east from these higher features, but the Brisbane Ranges and the Anakie Hills are indeed 'visually prominent landscape features' in themselves, quite apart from any views that they might afford to the east.
2. The area covered by the Significant Landscape Overlay schedule 5 is much more limited than that of the Environmental Significance Overlay. A protrusion of the area to the south east encompasses the third sister and the existing scoria quarry on lot 4. A small 'collar' of the area extends around the south west and southern and eastern sides of that area. The overlay affects only the northern quarter (approximately) of the review site being part of the northern end of lot 3 and 2 (including the shoulder strap). As such it includes the northern edge of the 'apron' to the third sister although the third sister, herself, is beyond the review site.
3. Clause 2 of the schedule contains five landscape character objectives to be achieved including the following:
   • To protect and enhance the visual and natural landscape values of the area.
   • ...
   • To protect the landscape from visual intrusion from inappropriate buildings and works and their siting, design and/or materials.
   • To maintain the natural skyline of ridge and escarpment areas and avoid obtrusive building silhouettes.
   • To encourage the siting, design and landscaping of buildings and works responsive to the landscape values of the area.
4. The danger of inappropriate buildings and the like intruding into view receive particular emphasis here.
5. Clause 4 of schedule 5 contains some decision guidelines including:

Before deciding upon an application the responsible authority must consider, as appropriate:

• The landscape values of the edges of the Brisbane Ranges and Anakie Hills.
• The protection and appropriate enhancement of the landscape, having regard to:
  • Protecting landscape areas and vantage points of high quality.
  • ...
  • The control of the density of buildings and subdivision in areas of scenic value.
  • Whether the siting, height, scale, materials and form of proposed buildings and works has been designed to have least visual effect on the landscape and scenic views of the Brisbane Ranges and Anakie Hills.
  • Whether approval of the proposal buildings and works is compatible with maintaining the visual and natural significance of the landscape.
  • The benefit of permit conditions requiring all building materials to be non-reflective and of colours which are complementary to those of the natural landscape.
  • The benefit of conditions requiring the landscaping of buildings and works, while also having regard to the maintenance of existing view lines.
  • The containment of extractive industries to ensure that development and subsequent reclamation are carried out without significant detriment to the recreational and scenic value of the surrounding area.
  • Whether an alternative site is available on the land for the proposed buildings and works that would better meet the landscape objectives of the schedule.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. We consider the proposal to be acceptable in terms of landscape considerations and the concerns of the Significant Landscape Overlay.
8. 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.
9. 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.
10. 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.

1. We have mentioned that there is strong policy in the planning scheme for the extraction of minerals, stone and quarry materials. We have already referred to the particular provisions in relation to Stone extraction and Earth and energy resources industry generally including reference to clauses 52.08 and 52.09.
2. Clause 14.03 in the State Planning Policy framework deals with Resource exploration and extraction. Its objective reads as follows:

To encourage exploration and extraction of natural resources in accordance with acceptable environmental standards and to provide a planning approval process that is consistent with the relevant legislation.

1. The extraction of useful stone and quarry materials is of importance and to be encouraged (and not frustrated) in suitable circumstances. This does not mean that anything goes anywhere, but it is nevertheless an important positive consideration. There will, no doubt, be circumstances where Stone extraction will not be permitted from a planning point of view and perhaps others where such activities might be severely curtailed. There are always likely to be some constraints, but the present proposal is as free of constraints as are likely to be found.
2. The strategy to achieve the objective under clause 14.03 include the following:

Protect the opportunity for exploration and extraction of natural resources where this is consistent with overall planning considerations and the application of acceptable environmental practice.

Provide for the long term protection of natural resources in Victoria.

Recognise the possible need to provide infrastructure for the exploration and extraction of natural resources.

Planning schemes must not impose conditions on the use or development of land that is inconsistent with the Minerals Resources (Sustainable Development) Act 1990 (and other specified legislation).

1. Such strategies also deal with the question of distances between extractive activities and sensitive land uses.

1. We were referred to the Geological Survey of Victoria Technical Record 1991/2 and its description of the Geelong Supply area-Extractive Industry areas. This land is included in such an area. On page 2 of the Extractive industry interest areas document the following appears:

• Provide a basis for the long term protection of stone resources from sterilisation by inappropriate land uses;
• Provide a basis for ensuring the long term availability of stone resources for use by the community and at a minimal detriment to the environment;
• Assist in considering extractive industry values in long term strategic planning as well as local strategy plans;
• Ensure that planning and responsible authorities consult with all relevant agencies about land use proposals which may impact on the reduction of stone resources within these areas; and
• Create awareness that extractive industry is a possible land use in these areas.

• Provide statutory protection for stone resources;
• Allow extractive industry as-of-right unless specified in the planning scheme;
• Imply that future extractive industry will be confined to these areas;
• Preclude the use and development of land for other purposes; or
• Provide direction regarding approval of specific extractive industry projects.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.

1. If the proposed quarry is established, then how long it will operate and whether it will ultimately extend to all the stages depicted in the proposal would depend upon a number of factors that cannot currently be assessed. The greater the quantity of the resource the longer might be the period of exploitation. The rate of exploitation and the time taken to exhaust the resource would depend on such things as market and demand which cannot be foreseen far into the future. At some rates of exploitation periods of extraction was projected forward for as long as 285 years.
2. It is true that it is not reasonably possible to predict the circumstances that would obtain then although it may be reasonable to conjecture that useful farmland will still be needed for farming purposes.
3. The reason and justification for the proposed quarry may cease long before the expiry of nearly 300 years. It is not usual, in granting permission for uses or developments of land to impose time limits. It is possible to do so and there are some circumstances which justify such a course. Otherwise a permit will, subject to any constraints in the planning laws, continue to operate indefinitely. We see no reason to depart from that approach in relation to the existing case.
4. It was argued that the grant of such a permit, that might operate for a long time, will 'sterilise' nearby land so as to prevent other reasonable uses. We do not regard this proposal as sterilising farming land in the Farming Zone for the primary purposes of such a zone. We are by no means satisfied that a residential use of nearby land is now, or for any foreseeable future, is likely to be a 'reasonable' use of such land.

1. Basalt deposits vary in quality. The best grades are apparently accepted by the Roads Corporation for the construction of freeways, but there is a market and need for basalt products that do not attain that quality. Expert evidence was called on behalf of Mr O'Grady to suggest that, if the deposit on the review site does not include those best Roads Corporation grades, then the proposed quarry will not survive financially.
2. We do not accept that only the best grades are marketable or valuable. The company has been warned that it may be taking a financial risk if it develops this quarry if it will not be able to produce processed basalt of freeway quality. That is a risk that it must assess for itself. It is not our responsibility to protect the company from itself, or to make financial decisions for it. We confine ourselves to considering whether the proposal is acceptable from the planning point of view.
3. A further point was taken for Mr O'Grady suggesting that insufficient evidence has been advanced as to whether there is high quality basalt in the deposit. Apart from the financial viability of the proposal it was suggested that we needed to have that information to assess net community benefit.
4. We consider that there is a net community benefit in this proposal in that it is to give rise to a product that is saleable and needed by the community, quite apart from providing employment and other business opportunities to suppliers of necessary goods and services.
5. As with the quality of farming land, so with would the quality of basalt deposits. Victoria may not be able to feed itself if only the very best farming land, in terms of richness of soil and reliability of rainfall, was used to produce food and other farm products. We also need the medium grades and poorer grades of farm land. The same can be true of basalt.

1. Amongst the policy provisions previously quoted was the notion of whether there were preferable alternative sites on the land. That does not really arise. The proposal is, in fact, to exploit all the basalt except for setbacks, buffers and the like. In any event, we did not find a problem that needed to be remedied by relocation on the land.
2. The other argument raised was as to whether there are alternative sites off the land. It was suggested that, from a net community benefit point of view and more generally, there are plenty of other sites and deposits of basalt that can serve whatever need the community has for such products.
3. This argument has long since, indeed for decades, been recognised as irrelevant as a planning consideration. The question is always whether the proposal for this site is acceptable, irrespective of whether there are other sites, even other preferable sites, that may exist yet not be available to the proponent.
4. In any event, although there may be considerable amounts of basalt in the district, if excessive and unreasonable demands and standards are applied, there may well be that little or none of it could be exploited. The question remains, is this an acceptable proposal. We consider that it is.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. We consider that reasonable projections of usage related to the proposed quarry are quite within acceptable grounds for the roads concerned.

1. There was some debate, in the course of the hearing, in relation to the question of whether there is a need for the quarry or its product. There is no debate that there is a need for basalt products and we accept that this is so. We also accept that it is not limited to the first grade 'freeway quality' product. It was rather suggested that there is no 'need' because there are or can be other suppliers, whether or not this proposed quarry is allowed to proceed.
2. We doubt that we would be justified in concluding that is no 'need' for the product proposed here but in any event we adhere to the now long established principle in relation to need in a consideration of the planning merits of a proposal. That approach is that, if there is a community need, that is a consideration in favour of granting permission that will enable it to be met but lack of such need is not a consideration against a proposal. The Shell Company Ltd v Frankston CC & Amoco Australia Ltd[5] overruled the decision in the L'Estrange v City of Hawthorn[6] which had taken a contrary view. The Shell case been consistently followed and applied since, Lineus May Nominees Pty Ltd v Stonnington CC & Schultz[7] being but one example of many such instances.
3. We consider this to be the correct approach.

1. We consider that this proposal is an appropriate one and one for which permission should be granted, subject to conditions. The hearing of this case occupied eight days, It was a long hearing with several parties participating through their representatives. In the course of the long hearing many matters were raised and discussed, sometimes only in passing. In the above reasons we have set out to explain why we consider that the objections raised to the proposal do not warrant its refusal or its modification, except to the extent that we will impose conditions. In doing this we have dealt with what we consider to be the principal issues raised in the course of the hearing. There are no other matters, discussed or not, which are of relevance or importance such as to dissuade us from granting permission subject to conditions.

1. The question of conditions was discussed in the course of the hearing, and particularly at the end of the hearing, in terms of several drafts and modified drafts put forward by the parties. Ultimately conditions are our responsibility and we hold ourselves free to delete or add or otherwise modify wording or setting out as we consider appropriate.

The use and development of the land for stone extraction and variation of an easement.

1. Before the use or development starts amended plans must be submitted to and approved by the Responsible Authority. Such plans are to be drawn to scale with dimensions and three copies must be submitted. When approved the plans will be endorsed as evidence of their approval and will thereby become the endorsed plans in relation to this permit. The plans must be substantially in accordance with the amended plans Fig 1 dated 19 November 2013, Fig 2 dated 6 October 2014, Fig 3 dated 21 January 2014, Fig 4 dated 18 November 2013, Fig 5 dated 6 October 2014, Fig 5A dated 9 October 2014 and Fig 6 dated 25 February 2014, but modified to show:

1. Bund wall increased to 6 metres for the northernmost 300 metres in the north west corner of the development and elsewhere if mandated by the Acoustic Report required under conditions 6 and 12; 2. a minimum setback of 111m from the southern site boundary to the edge of the Extraction area; and

1. a truck parking bay within or near Featherrock Road.

Working in Accordance with the Approved Work Plan

1. The use and development of the subject land must not commence until the Work Authority, including an Approved Work Plan is issued pursuant to the Mineral Resources(Sustainable Development)Act 1990 unless with the written consent of the Responsible Authority and the Department of Environment and Primary Industries.
2. The use and development of the Land must proceed in the order of stages as shown on the endorsed plans unless otherwise approved in writing by the Responsible Authority.
3. Except with the further consent of the Responsible Authority no alteration may be made to the natural condition or topography of the land within 20 metres of the boundary of the land. This does not apply to driveways, drains, bund walls or landscaping.

1. Output must not exceed 500,000 tonnes per annum, unless an assessment of impacts has been undertaken in accordance with the Protocol for Environmental Management for Mining and Extractive Industries (PEM).

1. Before excavation for stages 4 to 6 or any one of those stages commence the following assessments must be submitted to, and approved by the Responsible Authority to its satisfaction:
   1. An acoustic assessment of the noise generated by the crushing plant and other noise sources associated with he operation of the quarry measure at the sensitive receptors which demonstrates the use and development will meet the noise limits under the Guidelines Noise from industry in Regional Victoria- Recommended Maximum Noise Levels from Commerce, Industry and Trade Premises in Regional Victoria(NIRV) Publication 1411 October 2011 (NIRV) (as varied or replaced from time to time) and specifies any measures required to meet the noise limit including:
      1. the height and location of Bunds;
      2. the configuration of any fixed crushing plant to minimise noise emissions to sensitive receptor to the south;
   2. An Air Quality assement prepared in accordance with the State Environment Proptection Policy (Air QuaityManagement); and the EPA Protocol for Environmental Management; Mining and Extractive Industries(PEM), including an assessment of nuisance dust.
2. Before extraction for stages 4 to 6, or any one of those stages may commence, any noise or dust mitigation measures identified in the acoustic and air quality assessments required by condition 7 must be implemented to the satisfaction of the Responsible Authority.

1. Unless otherwise approved in writing by the Responsible Authority, prior to the use and development commencing, an Environmental Management Plan (EMP) must be prepared by a suitably qualified person and submitted to the Responsible Authority for approval. The EMP must be to the satisfaction of the Responsible Authority. The EMP must provide for, but not be limited to:

1. Water balance calculations including water sources, storage, internal drainage lines and sediment repositories; 2. Measures to be undertaken to control sediment-laden water being discharged from the site;

1. Emergency response procedures to be implemented and other measures required to control the discharge of sediment-laden water in flood events;

1. Management of grey water and sewage generated on site; and 2. Management of storage of fuels and other materials to prevent interaction with surface waters.

When approved, the EMP will be endorsed and will then form part of this permit. The use and development must be undertaken in accordance with the approved EMP to the satisfaction of the Responsible Authority.

1. If groundwater is intercepted on the site the permit holder must:

1. Immediately cease excavation; 2. Immediately contact the Responsible Authority and Southern Rural Water

1. Not recommence excavation until: 1. The relevant water authority has advised that a groundwater licence is not required, or any necessary groundwater licence has been acquired. 2. The operation is modified to the satisfaction of the water authority and the Responsible Authority.

1. As measured at the closest adjoining sensitive locations (which expression has the same meaning as in condition 14 below), noises generated within the quarry must not exceed the following levels:
   1. Monday to Friday 7.00am to 6.00pm - 46 dB(A)
   2. Saturday 7am to 1pm - 46 dB(A)

dB(A) levels assessed as an Leq Level over a 30 minute period in accordance with the EPA document Noise in Regional Victoria(NIRV)

1. No broadcast or loudspeaker system, telephone ringer or other external alarm may operate on the site except for a warning alarm for blasting or as mandated by WorkSafe.

1. Prior to the use and development commencing, an Acoustic Report must be prepared by a suitably qualified acoustic consultant and submitted to the Responsible Authority for approval. The Acoustic Report must address:

1. the potential for noise during construction of the initial works (including landscaping and the creation of bund walls) and throughout the life of the quarry. 2. any necessary measures for the management and operation of the permitted use to ensure compliance with relevant noise regulations including: 1. all mobile equipment operating at the site must be fitted with the 'new generation' broadband reverse alarms, which vary their noise output according to the ambient noise level, which reversing alarms must be selected for the lowest noise level consistent with safe operation; 2. product stockpiles and travel routes within the site must be configured so as to minimise any need for sales trucks to reverse; 3. the permit holder must ensure that any rock drill used on site is acoustically shielded to ensure noise emissions from the site do not exceed the NIRV Recommended Maximum Noise Level of 46dB(A); 4. the permit holder must establish a community liaison protocol to the satisfaction of the Responsible Authority to manage early identification of any emerging noise issues and the implementation of remedial measures as required in order to comply with the NIRV Recommended Maximum Noise Level of 46dB(A) as the quarry development progresses and new stages commence; and

1. the construction of noise control works (bunds) and any measures to address disruption to sensitive receptors from noise associated with their construction.

When approved, the Acoustic Report will be endorsed to identify it as the Acoustic Report under this condition. The use and development must at all time be undertaken to the satisfaction of the Responsible Authority where the Responsible Authority will take account of the Acoustic Report in determining what it will be satisfied with.

1. Prior to the commencement of works and approved use, the permit holder must submit a noise monitoring plan prepared by a suitably qualified acoustic consultant to the Responsible Authority for it approval. The document must detail the noise monitoring to be undertaken in accordance with NIRV and the State Environment Protection Policy N-1 of the Environment Protection Authority at the following times and measures to address an non-compliance issues:
   1. on commencement of the use;
   2. twelve (12) months after commencement of the use; and
   3. prior to the commencement of the use of a rock drill in each stage

in order to confirm compliance with the NIRV Recommended Maximum Noise Level of 46dB(A) and to identify any necessary noise control priorities.

Within 4 weeks of each round of noise monitoring being completed a summary of the noise monitoring results and any action taken to mitigate impacts must be submitted to the Responsible Authority.

1. Prior to the use and development commencing, an Air Emissions Management Plan (AEMP) must be prepared by a suitably qualified person and submitted to the Responsible Authority for approval. The AEMP must detail, but not be limited to:
   1. a risk management strategy addressing measures to reduce air emissions to acceptable levels at nearby sensitive locations (meaning residences, schools, kindergartens, aged care facilities, hospitals, child care centres and recreational areas) and to address the potential for nuisance dust off-site including details of the following:
      1. a baseline monitoring program of nuisance dust which must be completed prior to the commencement of the use
      2. how activities which generate dust on site will be managed to minimise dust emissions including spray bars on transfer points, application of water on haul roads, water cannons on stock piles;
      3. the circumstances in which quarrying activities will cease on site due to weather conditions that will result in visible dust being discharged beyond the boundaries of the premises;
      4. how dust will be monitored, such monitoring to be in compliance with the State Environmental Protection Policy (Air Quality Management) 2001 and the PEM and to include dust deposition gauges at locations to be determined in consultation with the Responsible Authority;
      5. contingency measures to deal with any elevated dust conditions or upset conditions.

Once approved, the AEMP will be endorsed as evidence that it is the AEMP approved under this condition.

1. The extraction operation must at all times be conducted in accordance with the AEMP to the satisfaction of the Responsible Authority. The AEMP may be amended to the satisfaction of the Responsible Authority.
2. Any failure to meet the standards of the State Environmental Protection Policy (Air Quality Management) and the PEM must be brought to the attention of the Environment Protection Authority and the Responsible Authority and such failure is to be rectified to the satisfaction of the Responsible Authority.

1. Prior to commencement of works, a Landscape Plan for the entire site must be prepared by a suitably qualified Registered Landscape Architect and submitted to the Responsible Authority for approval. When approved, the landscape plan will be endorsed and will then form part of the endorsed plans of this permit. The Landscape Plan must include the following elements:

1. details of existing conditions and vegetation (including windrows and road plantings) and details of this existing vegetation to be retained and/or removed as part of the bunding works; 2. a rural character to the external road edge landscapes and visual layers to the landscape with multiple lines and returns within the planting system to imitate existing rural landscape forms;

1. a landscape buffer system based around a combination of tall windrow plantateions(Sugar Gums or mixed species plantations) along perimeter fence lines;

1. dense screen planting and screen mounding within the site; 2. planting to address the mitigation of views to the site generally in accordance with the recommendations of the Landscape and Visual Impact Assessment prepared by Tract Consultants (November 2014); 3. use of suitable stockpiled soil in the mix of the material for the bunds to encourage the establishment of planting on the bunds; 4. the location of bunds inside the site boundary to retain the appearance of an agricultural property particularly along Brownes Road generally in accordance with the recommendations of the Landscape and Visual Impact Assessment prepared by Tract Consultants (November 2014); 5. species and planting densities of the vegetated bund (avoiding species listed in the 'Garden Plants Going Bush... Pest Plants/Environmental Weeds', Version 8, City of Greater Geelong which must not be used); and 6. an effective irrigation and watering regime during the establishment phase and for the ongoing maintenance.
2. The approved Landscape Plan must be implemented to the satisfaction of the Responsible Authority.
3. Screening vegetation and landscape planting in accordance with the endorsed plans must be planted and maintained for the operational life of the quarry to screen, to the satisfaction of the Responsible Authority, activity on the site. All vegetation that is dead must be replaced as soon as practicable to the satisfaction of the Responsible Authority.
4. Overburden must be maintained and located so as to minimise visual impact and be top soiled and hydroseeded so as to reduce the event of erosion and degradation of the subject or surrounding land, to the satisfaction of the Responsible Authority.

1. Unless otherwise approved in writing by the Responsible Authority, prior to commencement of works, a Pest Plant and Animal Management Plan (PPAMP) for the entire site must be submitted to the Responsible Authority for approval. The PPAMP must be to the satisfaction of the Responsible Authority. The PPAMP must include, but not be limited to:

1. list of pest plant and animal species applicable to site; 2. species targeted for control;

1. management techniques including regular weed management along the bunds and perimeter landscaping; and

When approved, the Pest Plant and Animal Management Plan (PPAMP) will be endorsed as evidence of its approval.

1. The use and development must be undertaken in accordance with the approved PPAMP to the satisfaction of the Responsible Authority.

1. Prior to commencement of works, a Rehabilitation Plan for the entire site must be submitted to the Responsible Authority for approval. The Rehabilitation Plan must include, but not be limited to:

1. existing conditions and vegetation (eg windrows and road plantings); 2. objective of the end use (i.e. agricultural);

1. progressive rehabilitation methodology of disturbed areas;

1. staging and timing of rehabilitation; and 2. species and planting densities on the basis that species listed in the 'Garden Plants Going Bush... Pest Plants/Environmental Weeds', Version 8, City of Greater Geelong must not be used.

When approved, the Rehabilitation Plan will be endorsed as evidence of its approval.

1. The use and development must be undertaken in accordance with the approved Rehabilitation Plan to the satisfaction of the Responsible Authority.
2. At least 6 months prior to the cessation of the use, the Rehabilitation Plan must be reviewed and if necessary amended to the satisfaction of the Responsible Authority.

1. Prior to the use commencing, the following road works must be completed at the expense of the permit holder and to the satisfaction of the Responsible Authority:
   1. resealing of Old Boundary Road with 40mm of Type H asphalt at the intersection with Featherrock Road and for 15 metres in Old Boundary Road to the north and south of this intersection; and
   2. sealing of Featherrock Road for a length of 15 metres from the edge of Old Boundary Road.

The works must be inspected by a council inspector prior to the seal being applied.

1. The extraction, processing and sales must only occur between the following hours:

Works outside of these hours will only be for essential maintenance.

1. Except with the written consent of the Responsible Authority, blasting must only occur between the following hours:

1. Heavy vehicles associated with the use must only access the site from Old Boundary Road and Featherrock Road.
2. The operator must prepare a Truck Management Plan to the satisfaction of the Responsible Authority. When approved the Truck Management Plan will be endorsed as evidence of its approval. The Truck Management Plan must address:

1. driver education concerning truck routes; 2. covering of loads prior to exiting the site;

1. measures that will be taken to educate truck drivers as to the operating hours of the quarry;

1. strategies to prevent trucks arriving and queuing outside the site before 7:00am; and 2. actions to be taken in the event that trucks attending or exiting the site do not comply with the Truck Management Plan.

1. Within one month of the commencement of the permitted use, the permit holder must commission an independent traffic and road impact assessment prepared by a suitably qualified traffic engineer. The traffic and road impact assessment must document the condition of roads that form the designated truck route.
2. Within 12 months of the commencement of the permitted use, the permit holder must commission an independent traffic and road impact assessment prepared by a suitably qualified traffic engineer. The traffic and road impact assessment must document:

1. the number of truck movements associated with the use; 2. identification of any unreasonable impacts caused by the permitted use on the safety or operation of the quarry traffic route.

1. make recommendations for any maintenance works required to address any unreasonable impacts caused by the permitted use on the safety or operation of the quarry traffic route; and

all to the satisfaction of the Responsible Authority.

1. Any necessary mitigation works recommended in the traffic and road impact assessment must be undertaken at the cost to the permit holder, to the satisfaction of the Responsible Authority.

1. Parking areas must be provided for employees' cars and all vehicles used on the site to the satisfaction of the Responsible Authority

Fly Rock, Notice of Blasting, Blast Monitoring and Road Closure

1. Prior to any blasting on the subject site the quarry operator must give written notice to the satisfaction of the Responsible Authority to all occupiers of directly adjoining land. This notification must be given at least 48 hours before each scheduled blast. The written notice must contain direct contact details for the responsible site manager. An exception will be made when, for unforeseen circumstances, explosives must be detonated prior to the nominated end of blasting on a nominated day for which blasting notice has been given.
2. Within twelve (12) months of the commencement of the quarrying activities approved under this permit, ground and air vibration tests are to be carried out at locations approved by the Responsible Authority. Testing locations must correspond with setback distances to the closest adjoining sensitive locations (which expression has the same meaning as in condition 14 above). Testing must not be undertaken on adjoining private land without the consent of the relevant land owner. Following testing a report must be prepared and submitted to the Responsible Authority for review. Any recommended or required modifications must be carried out to the satisfaction of the Responsible Authority.
3. When blast faces reach within 200 metres of roads accessible by the public all blasts must face away from public roads.
4. Except with the consent of the Responsible Authority any blasting within 150 metres of a public road, traffic must be stopped during the period of pit clearance until after the 'All Clear' is sounded.

1. The operator must keep a register of any complaints by the public concerning the operations and the register must be made available to the Responsible Authority on request.

1. The plan of subdivision submitted for certification under the Subdivision Act 1988 must be referred to Powercor Australia Ltd in accordance with Section 8 of that Act.
2. The applicant must provide easements satisfactory to Powercor Australia Pty Ltd for any new powerlines required to service the existing installations on the land. These easements must show on the plan as easement(s) in favour of "Powercor Australia Pty Ltd" for "Power Line Purpose" pursuant to Clause 88 of the Electricity Industry Act 2000.
3. The applicant must obtain for the use of Powercor Australia Pty Ltd any other easement external to the subdivision required to re service the installations.
4. The applicant must successfully complete negotiations with Powercor to relocate the existing Powercor assets clear of the extraction area, as required by Powercor (a payment to cover the cost of such works will required).
5. The applicant must provide and maintain vehicle access to all Powercor assets on the site of this application.
6. The applicant must ensure where buildings or other installations exist on the land are connected to the electricity supply; they must be bought into compliance with the Service and Installation Rules issued by the Victorian Electricity Supply Industry.
7. Any Buildings must comply with the clearances required by the Electricity Safety (Network Assets) Regulations.
8. Any construction work must comply with Energy Safe Victoria's "No Go Zone" rules.

1. This permit will expire if one of the following circumstances applies:
   1. The use and/or development is not commenced within four (4) years of the date of this permit;
   2. This permit will expire if the Work Authority for the use issued under the provisions of the Mineral Resources (Sustainable Development) Act 1990 is cancelled in accordance with section 77O of that Act.

The Responsible Authority may extend the periods referred to if a request is made in writing within six (6) months of the date of expiry.

[1] Tab 20 in the 'Hearing Folder' tendered on behalf of the responsible authority in support of its submissions.

[2] Also often referred to extractive industry.

[3] That is Extractive Industry Interest Areas.

[5] P82/1527 noted in the Australian Planning Board Reports Volume 1 at page 107.

[6] (1972) VPA 5.

[7] (1998) 22 AATR 248 at 252-253.