Buttai Gravel Pty Ltd v Independent Planning Commission [2025] NSWLEC 1525 | Case summary | Zoe

NSWNSWLEC

Buttai Gravel Pty Ltd v Independent Planning Commission

[2025] NSWLEC 1525

Land and Environment Court (NSW)|2025-07-23|Before: Walsh C and Young AC

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Source facts

Court

Land and Environment Court (NSW)

Decision date

2025-07-23

Before

Walsh C and Young AC

Catchwords

DEVELOPMENT APPLICATION – appeal – hard rock quarry –
State significant development –pedestrian safety –
traffic safety
– traffic flow – uncertainty of impacts of intended road

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Catchwords

DEVELOPMENT APPLICATION – appeal – hard rock quarry –State significant development –pedestrian safety –traffic safety– traffic flow – uncertainty of impacts of intended roadimprovements – social baseline –negative social impacts related toquarry product road haulage – negative amenity impacts of quarry productroad haulage –feasibility of rail haulage – economic benefits ofthe quarry – strategic benefits of quarry to major infrastructure–negative consequences outweigh benefits – insufficient information

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Buttai Gravel Pty Ltd v Independent Planning Commission [2025] NSWLEC 1525

Hearing dates: 17-21, 24-28 March 2025, final written submissions 11 April 2025

Date of orders: 23 July 2025

Decision date: 23 July 2025

The applicant in these appeal proceedings is Buttai Gravel Pty Ltd (BG). BG is the operator of Martins Creek Quarry (quarry), an existing hard rock quarry enterprise located in the Dungog Shire Council (DSC) Local Government Area (LGA). BG appeals under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a fresh development application (DA) which would provide for an expansion of currently approved quarry operations and associated development.
The DA is State significant development within the meaning of s 4.36(1) of the EPA Act, and the consent authority is the NSW Independent Planning Commission (IPC), the first respondent in the proceedings. The IPC’s reference number for the DA is SSD-6612. The IPC refused the DA on 13 February 2023, after the NSW Department of Planning and Environment had recommended consent be granted subject to conditions.
The DA is seeking consent to extract, process and transport by road and rail up to 1.1 million tonnes per annum (Mtpa) of quarry materials, including expansion into a new extraction area. A defined quarry truck haulage route from the quarry to the New England Highway at Maitland passes through both Dungog LGA and Maitland LGA. Maitland City Council (MCC) and Dungog Shire Council (DSC) were joined to the proceedings as second and third respondents, respectively.
Briefly here, we have determined that the appeal should be dismissed and the DA refused. There are two principal aspects behind the reasoning for this decision. The first aspect is based on the need to balance the public interest in approving or disapproving the project. While there are certainly beneficial aspects to the proposal, the negative consequences outweigh benefits. The beneficial impacts of the DA relate principally to the supply of the quarry's product for the construction sector and particularly for infrastructure projects of public significance. The negative consequences are particularly in relation to adverse traffic and pedestrian safety implications and social and amenity related impacts in the local area. The second aspect is based on our finding that BG has not made its case in relation to certain matters which warranted further resolution. Each aspect is individually determinative in this matter.

The DA was lodged with the Department of Planning and Environment, accompanied by an Environmental Impact Statement (EIS) (Ex 2 Tab 9). Henceforth, for references to the Department of Planning and Environment, or its later equivalents, the abbreviation “the Department” will be used. The DA sought approval for (among other activities) an expansion to the existing quarry operations to enable the extraction of up to 1.5 million tonnes per annum (Mtpa) of hard rock materials for a period of 30 years (IPC-CS, par 15-16). The DA and EIS were publicly exhibited between October and November 2016. In response, 873 submissions were received with 419 objections, 447 in support and 7 providing comment.
After further interaction with the Department, in May 2021, BG lodged an amendment to the DA and further impact assessment work with the Department. The amended application sought approval for extraction of 1.1 Mtpa of quarry product material over 25 years transported by road and rail, with road haulage up to 500,000 tpa. Among numerous other provisions, no trucks would pass through Paterson Village before 6:45am. The amending documents were publicly exhibited in June and July 2021. In response, 670 submissions were received with 634 objections, 31 in support and 5 providing comment (IPC-CS par 24-25).
In August 2021, the Department requested BG to respond to issues raised in the submissions. BG provided a Revised Project Submissions Report in November 2021 (Ex 2 Tab 25 and Ex A Tab 8). On 5 October 2022, the Department provided to the IPC its assessment report (Department’s Assessment Report), finding that “the benefits of the project outweigh its residual costs, and that the project is in the public interest”. It was found by the Department that the project warranted approval, subject to nominated conditions of consent (Ex 2 Tab 27).
In November 2022, the IPC invited further direct public submissions in respect to the proposal and a public meeting was held. 1453 submissions were received with 931 objections, 517 in support and 5 providing comment. On 23 November 2022, the IPC wrote to the Department seeking further information from it, and BG, in respect of a number of matters (IPC-CS par 32 and 34). Further information was provided. This resulted in further amendments to the DA with a reduction in the volume of quarry product materials to be transported by road to 450,000 tpa along with a reduction in the daily road haulage truck movements from 280 to 180 movements on the primary haulage route. The IPC sought submissions on these amendments during December 2022 and January 2023 and received 89 submissions (IPC-CS par 36-39).
On 13 February 2023, the IPC refused the Revised SSDA and issued a Statement of Reasons for Decision (Ex 2 Tab 43).
As indicated above, the proposal has been on public exhibition a number of times. There is extensive documentation of lay submissions in the material before the Court. More recently, the objecting submissions have been notably more numerous than those supportive. Positive submissions commonly related to local economic benefits and the wider strategic need for the quarry material. The main topics raised by those who objected were traffic and safety implications, social impacts and amenity impacts (IPC-CS par 33).
A number of further points on lay submissions can be noted relating to events closer to the hearing. First, is that following a pre-trial mention on 11 March 2025, and after some planning options relating to traffic and pedestrian management for Paterson village were prepared on behalf of BG, a public exhibition of these plans occurred, via IPC’s website. Some 342 public submissions were received by the time of the closing of the notification period on 26 March 2025 (Ex 30). Second is that on 17 March 2025, prior to the commencement of the site inspection for these proceedings, the Court attended Tocal Hall to hear a number of lay submissions from objectors, with many others also in attendance. Ex 4 provided some of the documentary material behind the lay submissions heard directly by the Court. Finally, we indicate that on the first day in Court a further lay objecting submission was heard via AVL. Various points from lay submissions arise later in the judgement.

The key point of attention for us here relates to the “primary haulage route” as identified in Figure 1. The proposal would result in additional traffic along the primary haulage route, including through the residential settlements of Martins Creek, Paterson, Bolwarra Heights, Bolwarra and East Maitland. Approximately 13 km of the primary haulage route is located within the Dungog LGA and approximately 15 km is located within the Maitland LGA.
The predicted increased truck movements along the primary haulage route are as outlined at [36]. The majority of the quarry product hauled by road would use a truck and dog (trailer) combination, with semi‐trailers and rigid trucks also in use (Ex A Tab 04 p 6.108).
The application was accompanied by specialist material in support, including the following:
Traffic Impact Assessment, SECA Solution (May 2021) (Ex A, Tab 4);
Martin’s Creek Quarry – Existing Condition Road Safety Audit Report, October 2024, CCHD (Traffic joint expert report filed 14 February 2025 (Ex 10 Annexure B p 70ff);
Martin’s Creek Quarry – Existing Condition Thematic Road Safety Audit Report – Heavy Vehicles, November 2024, CCHD (Ex 10 Annexure C p 154ff);
Martins Creek Quarry Crash Assessment of Haulage Route, 2 December 2024, TTPP (Ex 10 Annexure D p 257ff); and
Memorandum RE: Traffic Modelling, 28 January 2025, TTPP (Ex 10 Annexure E p 330ff).
BG nominates various measures aimed at addressing potential road safety related impacts, including certain nominated road works and intersection upgrades along the primary haulage route, certain financial contributions towards both capital works and maintenance to DSC and MCC and other factors addressed in consent conditions.
An understanding of the relationship between the proposed increased truck movements and background traffic volumes at various points along the haul route can be understood from traffic composition data in the Existing Condition Thematic Road Safety Audit Report – Heavy Vehicles (Thematic RSA).

BG has prepared conceptual drawings for the proposed road upgrades to assist assessment. These conceptual drawings have been designed to accommodate BG’s proposed annual road haulage of 450,000 tonnes and to form a basis for the preparation and approval of the final detailed designs. BG also states that the impacts of the proposed road upgrades have been assessed, relevantly, in the documentation outlined at [52] and the following additional material:
In respect to Gostwyck Bridge: the Gostwyck Bridge Report (Ex A Vol 3 Tab 4(m))
In respect to traffic queuing: in the traffic engineers' joint expert report (Ex 10 including Annexure I);
In respect of parking implications in Paterson for the works at King and Duke Street: also in the traffic engineers' joint expert report;
Road safety impacts of the proposed road upgrades: in the Safe Systems Assessment annexed to the traffic engineers' joint expert report (Ex 10 Annexure J); and
Civil engineering requirements for the works: in the civil engineers' joint expert report (Ex 8, which includes reference to the particular concept drawings for Sites 1-3).
In regard to the information necessary for an assessment under s 4.15(1) of the EPA Act, BG considers that mindful of Ulan, the Court only needs to understand the "outer boundaries" of the potential scope of impacts in order to carry out the required assessment (Tcpt, 27 March 2025, p 479(24)).
DSC argues that in respect of Sites 1 to 3, the Court does not even understand the impact outer boundaries.
There was evidence of a consensus that none of the conceptual designs for Sites 1 to 3 comply with the minimum sight stopping distances under relevant Austroads standards. There seemed to also be a consensus among the civil engineering and traffic experts that any final design of Sites 1 to 3 would require some combination of the following:
A design concession from TfNSW; and/or
Lowering of the applicable speed limits in the relevant environs of the proposed intersection and road works by TfNSW; and/or
If TfNSW refuses to provide either of the above approvals, then the works will need to change from the conceptual design submitted by BG to another configuration satisfactory to TfNSW.
DSC argues, and no documentation provided to us indicated other than, that TfNSW has not at this stage agreed to the concept road works, including associated concessions, at any of the sites.
We now turn to the expert evidence. First in relation to Sites 1 to 3, then to the Paterson Village site (Site 4).

With respect to Sites 1-3, and the associated proposed roadworks, there seem to be three essential queries. The first is based on the notion that relevant, and quite localised, speed limits should be varied to allow for road works design not compliant with current speed limits. This speed limit reduction in the environs of these three sites would bring about a general road use inefficiency in these areas. It is entirely possible that this may be thought as warranted as a trade-off for the otherwise benefits of a State significant quarry. There was considerable attention to the function of TfNSW in such a decision in the evidence, but in any event, the balancing of such (competing) public interest factors might be reasonably thought to go beyond the ambit of TfNSW as a line agency of government. As a general principle, it seems not unreasonable to think that in some circumstances it could be quite appropriate to determine to proceed on that path (ie restricting speed limits) were the otherwise public benefit of, in this case the supply of quarry product, were to outweigh the relatively localised traffic inconvenience. A resolution of this query (ie the substance of the public benefit provided by the proposed quarry) relates to other factors in these proceedings.
The second query is more technical. It is whether it would be safe to adopt the preferred (currently non-compliant) concept schemes, generally, or whether construction of the road works would introduce new safety risks. It includes the question of whether in the particular settings of Sites 1-3, if in fact speed limit controls (ie signage and the like) were to indicate a regulatory requirement for reduced traffic speeds, a considerable degree of compliance by road users could be expected. Mindful of the Austroads standards, it is reasonable to assume a significant additional safety risk would arise as a consequence of the proposed works themselves (particularly associated with stopping site distance) without good levels of speed compliance by traffic.
In regard to this second query, we find that the DA was significantly deficient in contextual “data” gathering, in the form of localised speed surveys were not undertaken. To have done so would have assisted in gaining an appreciation of the actuality of localised traffic’s behavioural response to these particular settings. This would have assisted in the resolution of the technical question involved in the second query. We accept Mr Maher’s evidence that there is presently an incapacity to assess road safety of the concepts as proposed. As it stands, we see significant uncertainty about the safety of the concept of reducing traffic speeds to allow the construction of the non-compliant road works, required to otherwise allow safe passage of the increased haulage truck movements associated with the proposed tripling of current lawful road haulage volumes.
The third query relates to uncertainties associated with the impacts of the proposed road works. This query is more pronounced in the event that the concept designs are unacceptable on safety grounds and there is a need for a compliant (or near to compliant) design. There is a deficiency in understanding of the scope of works involved to assess impacts in such a scenario. To the extent that the experts estimated likely construction requirements, somewhat on the run, there seemed to be agreement that due to the scale of earthworks there was at least the possibility of additional impacts that the experts are not yet aware of. Our interpretation is that this potentially included impacts relating to private lands outside the road reservation, such as in relation to: existing accessway reconfiguration, the consequences of concentrated stormwater management associated with retaining walls or other unknown factors. To make it clear, with respect to Site 1, we can indicate that BG’s claims that the ecological implications of potential land clearing on the site have been satisfactorily addressed are accepted.
In relation to Paterson village, we note Mr Maher highlights the parking loss central to the village and sees the net result of the replacement parking as a local loss. While Mr Kenny sees the parking reconfiguration as “regrettable”, he argues that there is an overall safer outcome as a consequence of the proposed pedestrian refuge and treatment of the right-angled intersection of Duke and King Streets (widened carriageway to allow two trucks to pass). Mr Hollyoak noted some of the inadequacies of current parking spaces (and current bus stop locations) in Paterson (Ex 10 pars 135-143). The parking relocation from desirable to less desirable spatial locations is an obvious negative aspect of the proposal.
The proposed roadworks in Paterson village seemed to be concerned with easing the flow of traffic, and especially haulage trucks and dogs, through the village. We accept that the provision of the pedestrian refuge assists with pedestrian safety. However, it is not clear to us, from the evidence, that there is an overall safer outcome in Paterson Village were the proposal to be approved. Given that it involves a tripling of allowable quarry trucks from the site and doubling of trucks through the village overall. The implications of the proposal on Paterson are examined more closely when social impacts are considered.

It is of course fair to observe that existing road safety issues are not the responsibility of BG, particularly given current road tonnages (Ex K). But it is an entirely different point to suggest that this premise (lack of applicant’s responsibility for various haul route settings with high safety risk) means it follows, as if by way of deductive reasoning, that allowing significant additional truck movements by BG, bringing known “increased risks”, are acceptable. While it will sometimes be more obvious in the sections of the haulage route where proportionate volume increases are higher (see Figure 4), introducing the proposed tripling of quarry truck movements directly increases safety risks beyond that which exists now.
A significant failing of the application is that there has been no evaluation of any particular incremental risk associated with the proposal (beyond sites 1-4) and what mitigation strategy is warranted. While it may not be a “requirement”, Austroads guidelines suggest “good practice” should attend to this.
That is not at all to say it is a matter of BG being responsible for “all of them” (ie all of the high and medium risk setting corrective actions) but, in our view, more a matter of sensitively and sensibly considering higher impact interventions relating more directly to the increased risks posed by the application, including what otherwise impacts may associate with such interventions. Mr McLaren pointing to the high number of at risk bus stop settings as pedestrian concentration points, a number of which we inspected during the site visit, would seem a good starting point.
BG argues that all road safety related issues are capable of being assessed and can be dealt with by way of consent conditions. It is further put that consent conditions can ensure that road haulage limits that exist under current consents would remain in place until finalisation of road upgrades are approved and undertaken. We note and appreciate the parties filing of a consolidated set of conditions on 11 April 2025 (the respondents indicated their conditions were to be understood as without prejudice). According to the applicant, BG’s suggested conditions could be adopted, or if this was not acceptable to the Court, the without prejudice (WP) conditions nominated by other parties were available for adoption. These WP conditions identify a suite of open-ended (or to be identified) further road upgrades, many of which are disagreed by BG; with in some instances the alternative to require payment of various Council contributions (ACS par 79-82). We note BG’s agreement to proposed condition A26 to pay an additional $180,000 “for bus stop work” (ACS par 81), which we had thought centred on Paterson village.
We are not satisfied that BG’s submission (that residual road safety concerns can be addressed via conditions including with respect to various contributions) releases us from an obligation to assess, in this case, traffic related safety impacts of the proposal under s 4.15(1) of the EPA Act. For example:
An open-ended analysis in respect to each of the 36 identified bus stops along the haul route as identified in the Thematic RSA, to lead to so far generally unexplored corrective treatments, as would occur under Condition B41C of the respondents, leaves unreasonable uncertainty in respect to the evaluation of impact of these improvements (some of which seem to involve some complexity, for example bus stops investigated during the site visit); and
Contributions made with respect to contributions plans under Part 7 of the EPA Act are, in this instance, insufficiently responsive to identified safety risks relating directly to road haulage aspects of this major DA.
On the latter point, strategic infrastructure contribution plans and a development application’s adopted integrated staging strategy, can at times inter-relate. But in this instance, there is insufficient line of site between the contributions works program and the RSA-identified safety risk sites (see eg tendered version of MCC 2016 City Wide Infrastructure Contributions Plan Ex 20 p 40). This means there are substantive uncertainties associated with the suggested reliance on infrastructure contributions as a means of mitigating residual adverse impact on pedestrian and traffic safety directly associated with this new development proposal.
A notable point for us in relation to the crash data is that there was relatively low traffic generation from the quarry during the survey period. This is less relevant for lengths of the haul route where there are already higher traffic volumes. Certainly, this crash data does not alleviate the need for further analysis of direct safety mitigation in selected higher safety risk locations.

The relevant location is at the southern end of the haulage route, where quarry trucks might be understood to enter/exit the New England Highway at Maitland and the State’s higher order road system.
MCC contentions included the proposals impact on the intersection of Melbourne Street and New England Highway. It is common ground that this intersection is already operating at, and sometimes beyond, its design capacity; in that during the peak hour traffic queuing will exceed turning lane capacities and thus affect through traffic flows at the key points.
There have been a number of data gathering and analytical exercises associated with the study of this intersection. Of particular relevance to us are three short reports.
The first is a “memorandum” entitled “traffic modelling” dated 28 January 2025 but which also undertakes an assessment and draws conclusions with respect to that modelling in support of the proposal. It was prepared by TTPA and formed Annexure E to Ex 10 (TTPA assessment). The findings in the TTPA assessment were essentially that: (1) intersection levels of service (LoS) would be maintained with the proposal (both currently and under a 10 year future traffic growth scenario); and (2) that average vehicle delays (AVDs) would be imperceptible at up to three seconds. The TTPA assessment was prepared after it was agreed between the traffic experts that there were significant problems with the 2021 traffic assessment undertaken by SECA (SECA assessment) which had been undertaken earlier in relation to the DA and had been the assessment which had been forwarded to TfNSW.
The second report is a critique of the TTPA assessment prepared by Mr McLaren. It formed Annexure CM4 to Ex 10. It documents what are suggested by Mr McLaren to be various “modelling inconsistencies” in the TTPA assessment. These inconsistencies related “particularly in calibration of the base case time periods for observed vehicle queue lengths and lane utilisation” (Ex 10 par 8). Attention was drawn to base case queue lengths along the Melbourne Street from the north which were seen to not align with “the community’s raised concerns”. In oral evidence, Mr McLaren indicated that the base queue lengths also did not align with his own experience of the intersection (Tcpt, 20 March 2025, p 190(35)). A need for calibration validation was identified.
The third report was a response to CM4 prepared by Mr Hollyoak which is referenced as Annexure KJH1 to Ex 10 (KJH1). KJH1 is not dated. It updated the SIDRA modelling to “enable a more conservative queue lengths for the critical right turn movement from the New England Highway (south) to Melbourne Street”. The conclusions were summarised as follows (Ex 10 par 117):

The relevant location in a significant intersection in Maitland is at the southern end of the haul route, where background traffic volumes are at a relative peak, and the relative impact of quarry traffic generation might be thought of as lowest. Generally, it might be thought that the impact of the addition of this scale of truck movements might be absorbed into the major trunk road system and ongoing plans for its improvement. However, generality is insufficient for this significant aspect of a State significant development and there is a reasonable expectation that rigorous data and analysis is available to the Court in making findings in regard to impacts on State and higher order roads. In this instance, this expectation has not been met.
There is a lack of clarity and thus uncertainty in relation to the chain of events leading to the loss of empirical survey information from September 2024 and its connection to what was relied upon in traffic assessment for the DA. One understanding from the evidence is that a number of separate unfortunate incidents occurred. First is that the survey cameras (more than one of them perhaps although this is uncertain), used in the field to later review and quantify queues by the surveyors, were damaged. Next, a former colleague of Mr Hollyoak who worked for the survey form, managed to salvage the videos from the damaged cameras via recovery software. Mr Hollyoak indicates this is when “they did their checks”. It is not clear but this might be the time when the surveyors prepared the excel spreadsheet of queue data referenced by Mr Hollyoak in the TTPA Assessment. Finally, when the recovered videos were revisited in December/January “several of them were corrupt”, not all of the videos but it seems a sufficient number of them were corrupt to not be able to satisfy Mr McLaren’s concerns relating to queue calibration.
While this all may be possible, our uncertainty would have been assisted by either some further, in the field, survey work on queuing or at least affidavit evidence explaining this unusual predicament the surveyors found themselves in. Mr Hollyoak’s evidence is not accepted that the survey data provided by the survey company was “all that I can rely on” (at [143]). It seems important that experts assisting the Court have a capacity to be inquisitive and responsive when external material they based their evidence on doesn’t add up, something Mr Hollyoak did indeed otherwise seek to do (see below).
There is then (a) a serious statistical improbability in the queue length survey data (which we assume to be the spreadsheet data explained by Mr Hollyoak), and (b) the curiously low numbers of queued vehicles at Melbourne Street southbound.
Here we accept Mr McLaren’s evidence that 4, 3 and 2 vehicles queued during the peak periods cannot be valid. The statistical improbability, if not implausibility, of the same average queue lengths for the three southbound turn movements out of Melbourne Street equating over the four nominated measurement periods raises a legitimate question about the queue survey data (at least) which would be assisted by confirmatory video or new surveys. Together this cast doubts on an intended positive response by Mr Hollyoak that a conservative position has been adopted for queue lengths (ie much longer than the survey had shown). It is not clear to us how it is known that conservative queue lengths were adopted if there is no verifiable data in relation to measured queue lengths.
The differences of opinion between these two very experienced experts is also troubling for us. It is possible that Mr McLaren’s key concern is that TfNSW should have had the opportunity to comment on the lower LoS figures for this State road intersection, as estimated by TTPA (versus that included in the report actually provided to TfNSW). We do not see this as a legal concern, but it is fair to understand that the Court would have been assisted were TfNSW provided opportunity to comment on this.
Ultimately, we do not accept a position that State significant development should never add to an at-capacity State road intersection, albeit noting Mr McLaren’s point that there are public benefits if this can be avoided. As indicated earlier, for development of State significance sometimes there may be externalities (ie adverse impacts) that need to be accommodated due to wider public benefits. We have also noted that that State road infrastructure evolves over time. However, this is a general point. As is well known, in particular cases, BG bears the persuasive burden of satisfying the Court that consent ought to be granted (Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641 at [2]). In this instance, it is reasonable to expect models of the kind used in BG’s traffic assessment to be validated by representative in-field measurements. This has not been sufficiently addressed here. There is insufficient knowledge of the effects of the additional quarry trucks and dogs on the Melbourne St / New England Highway intersection, including whether any particular critical junctures might be reached as a consequence of the proposal warranting mitigative treatment.

There are three points to note here. First is that the relevant (MCC) contention only related to “Zones 3, 4 and 5”.
Second, is that Mr Shearer’s reference point for the finding of “not create an adverse noise impact” is related to the RNP criteria. The RNP provides that proposals not result in an exceedance greater than 2dB(A). Mr Shearer agrees with Mr Proctor that the maximum increase along the haul route is 0.6dBA. Then, when seeking to back-up the finding of “not create adverse noise impact”, Mr Shearer quotes the particulars of the RNP when he expressed a view that “an increase of 0.6 dBA ‘represents a minor impact that is considered barely perceptible to the average person’” (Ex 11 par 50).
The third point relates to the reference to “only” in Mr Shearer’s evidence above. It is to acknowledge that Mr Shearer and Mr Haydon had both raised concerns relating to the lack existing road traffic noise level data for the night-time period. Their concern was related to sleep disturbance criteria. The concern was that, while truck movement along the haul route was anticipated (and proposed) prior to 7am, there has been no adequate consideration of noise impacts when the night-time criterion applied. On this point, we generally accept that BG’s proposed consent conditions include provisions that there be no use of the haulage route by trucks associated with the quarry prior to 7am satisfies this concern from a regulatory criteria point of view.
We note Mr Haydon’s concern that it is unknown whether the quarry was operating in accordance with the 150,000 tpa limit or at reduced capacity during the vehicle counts used in noise assessment. While acknowledging this uncertainty we were not sure of the implications. Generally, we were persuaded by Mr Shearer and Mr Proctor’s expressed views, albeit mindful of the evidence of Mr Haydon.
In regard to the dispute in regard to whether real time monitoring along the haul route should be required via condition (proposed Condition B7(d)(iii)), it is our view that high levels of assistance in addressing implementation difficulties would be appropriate in regard to truck movement along the haul route. However, further evidence would be required as to the practicalities of this particular management device in this instance.

Firstly, we acknowledge and accept Professor Ryan’s argument that the SIA Guideline is just that - a guideline to aid the work of practitioners in social impact assessment rather than something to be followed precisely always. For our purposes, and generally in accordance with the SIA Guideline, the social baseline is established to measure the impact of a development proposal. Its purpose is to provide a benchmark against which the proposal’s social impacts can be measured against. While the quarry is not operating at present, in accordance with the current lawful operational consent, it could lawfully do so at any time. If one is seeking to evaluate the impacts or consequences (positive and negative) that people would experience were the proposed development to go ahead, the existing consent’s operational aspects should provide the baseline against which impact should be measured.
It is inappropriate to set as a social baseline, for the evaluation of impact, the setting at the time of earlier unapproved operations. Four points support this finding. First is that to adopt the earlier unapproved operating period would provide an advantage to BG in the evaluation of the impact of the proposal. A suggestion that BG should gain either direct or indirect advantage from this past unlawful use should be firmly rejected (Kouflidis v Salisbury City Corporation (1982) 29 SASR 321 at [324], cited in Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel; Stewartville Pty Ltd v New South Wales Transitional Coastal Panel; Robert Watson v New South Wales Transitional Coastal Panel [2018] NSWLEC 207 at [128]). Second, is that it is against the SIA Guideline’s definitional provisions to exclude the proposed development from the understanding of the social baseline. Third, is that to do so would set a frame for evaluating something other than an impact of the current project on (what is reasonably understood to comprise) the locality (s 4.15(1)(d) of the EPA Act). Fourth, is the position adopted by the other two social planning experts and indeed those preparing the Revised Response to Submissions Report relating to social impact which we return to below (Ex A Tab 8 Annexure Ap 9 par 3).
That is not to say that there is not value in understanding how social (and other) impacts were experienced during the time of the earlier operations, including the period of the IEMP operation, with its similar road haulage annual quantum to that expected from the proposed development. Information on this past use could be useful to understand likely impacts: Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99 at [38]. Were the evidence to support a view that impacts were low or acceptable during this period this could be pertinent, as could evidence at odds with that.

There was what appeared to be a considered documentation of the community concerns, including quoted evidence of “lived experience”, which we go to when considering specific impacts. The SIA provided seemingly rigorous feedback garnered from local residents, both during periods of higher and lower road haulage rates. This comprised Round One engagement during 2018 when one might assume in round terms road haulage of some 500-600,000 tpa (from Ex K); and during 2020 when road haulage had dropped off to considerably below even approved levels. That is to say, there was contemporaneous feedback, under a program developed by social impact specialists, on community attitudes to the proposal before and after the reduction in road haulage levels which was available for review.
To the extent that there was a reliance on unapproved operations and the notion of a reduction in truck volumes (rather than a tripling of truck volumes), it would misdirect the SIA findings. This question is best considered in the evaluation of actual social impacts which we turn to immediately below. We do note that the SIA did find impacts (even with mitigation) were "high" with respect to many notable areas. This is acknowledged by Umwelt, where, after consideration of criticism, those preparing the SIA made reference to "the high proportion of the identified impacts which have still been assessed as high (for some within the community), post mitigation" (Tab 8 p 134).
We note Professor Ryan seemed to rely significantly on a record of complaints received by Daracon over a period of time (see [184]). We found this particular material unconvincing of itself. That is, as a time-based table of data, from which one might draw reliable inferences. The relatively low complaint numbers indicated by Daracon during 2019 and 2020 can be observed, but the lack of general correlation between the number of complaints recorded in this table and the variation in road haulage tonnages was unexplained. The low level of complaints during 2015, when haulage rates were very high, lacked any explanation in particular. Further, there seemed to be no disagreement that there was a lack of confidence on the part of the community in the complaints handling process of Daracon. That is to say, there was significant unaccounted for doubt about the relationship between an individual's experience of impact and the lodging of a complaint with Daracon. On this point of the Daracon complaints data, we prefer the evidence of Dr Stubbs (Ex 15 par 597(d)):

It is noted that there is some identification of vulnerable groups in the SIA data collection phases. For example, section 5.13 “Social Profile Summary” identifies a range of community vulnerabilities; and section 5.84 “At-Risk and Vulnerable Groups” provides data to indicate “a number of the study communities exhibit greater proportions of at risk groups when compared to NSW state averages”. Beyond this, we accept the evidence of Dr Stubbs and Ms Kanaris that there was insufficient attention to specific impacts on relevant vulnerable groups associated with the specific proposal and mitigative responses. BG’s and Professor Ryan’s argument that such matters can be addressed subsequent to development consent through the SIMP does not assist in understanding and evaluating the said impacts.
In regard to pedestrian safety and the elderly, parents with small children, and children in particular, we accept the evidence of Dr Stubbs that such groups will experience significant additional fears for pedestrian safety as a consequence of the increase in quarry truck movements in Paterson, even with the proposed pedestrian refuge. The particular suggestion “that an older person or someone with decreased mobility may not catch the bus due to increased fears for safety” seems to illustrate the general point reasonably; a point not examined to any depth in BG’s material before the Court. The suggested consequences, relating to curtailed social and recreational or health-related activities, which we accept as material and likely, would provide a further adverse social impact.
We are not convinced that the history of quarry activity and truck haulage along the haul route over time, and especially the illegal haulage which ceased over 5 years ago, softens the impact in any significant way today.
In regard to noise, it is insufficient to rely on compliance with EPA Guidelines if social impact is the point of attention. These guidelines allow noise in excess of current levels which in this instance, on occasion at least, already exceed relevant criteria (SIA Table 7.1 top right hand corner p 3). This can mean that there is a direct adverse amenity effect associated with noise annoyance which, certain more vulnerable people may feel greatly (shift workers being an obvious example).
But in this instance, an indirect effect can also come into play. As put in in Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7 (‘Gloucester*’*) at [354]:

There seems to be potential for instances of overstatement in the lay submissions and too close a comparison made to periods of around 10 years ago when haulage rates were much higher than now proposed. But, similar to Gloucester at [367], the perceptions of impacts, with approval of the tripling of quarry truck traffic, for vulnerable groups, but also many less vulnerable, is likely to further raise stress and anxiety, potentially affecting mental health and physical health. Such reasonably expected increases to stress and anxiety are impacts of themselves.
There was also, for example, a direct recognition of past history related sensitivity associated with exposure to annoying noise in the evidence of Mr Proctor, who acknowledged this as a factor in acoustics and something accounted for in NPfI. That is that individuals who had experienced annoying noise over a prolonged period could be more sensitive to that noise. This sensitivity had not been factored into the NIA (Tcpt, 25 March 2025, 343(35)-344(47)).
As identified in the 2017 and more recent SIA Guideline, close attention is warranted to persons more susceptible or vulnerable to negative social impact. There was a significant under-investigation of particular impacts of the proposed increased road haulage on vulnerable sectors within the local population. In the circumstances, reliance on outputs of the SIMP to address such factors is a weakness of the proposal. Consideration of those especially susceptible to social impact is a significant factor in the evaluation of the proposal before us (under s 4.15(1) of the EPA Act) and should have been more closely attended to in the SIA to devise appropriate mitigations and allow the net impact to be evaluated.
But beyond this lack of information in the application material, in this instance we accept the evidence of Dr Stubbs and Ms Kanaris that there are likely significant impacts on vulnerable groups which at least would impose a high social impact risk.

We are mindful of the findings in New Century Developments P**ty L**td v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154, [63], that “a court would prefer views from residents which are based upon specific, concrete, likely effects of the proposed development”. Having reviewed both written and oral submissions there is considerable specific lay evidence of likely social impact in relation to amenity and its social consequences. There has been considerable attention to this lay submission evidence on the part of those preparing the SIA and the experts providing evidence to assist the Court in the proceedings. The SIA provides commentary in relation to both “perceived” impact and their own findings on impacts having regard to these lay perceptions. We take it that the social planning experts have also sought to understand and validate the experiences expressed in these lay submissions (Ex 15, par 222).
Those undertaking the SIA concluded that, in matters relating to this subtopic, even with the proposed mitigation, the then (revised) project had a high social impact ranking with respect to a large group of parties like “visitors/users/residents of Paterson village”, “Paterson businesses”, and “various residents along the haul route” (eg Ex A Tab 8 App 4 Table 1.2).
The amendments to the proposal, subsequent to the undertaking of the SIA, need to be accounted for (ie reducing total haulage volumes by around 10% reduced truck haulage movements and specified changes to trucking hours among other factors). The respondents’ experts have taken these changes into account and have concluded that the amenity related social impacts are at least high.
We accept the evidence of Dr Stubbs and Ms Kanaris and find that social amenity related impacts are high as a consequence of the tripling of truck movements from the social baseline level. Here we are in the domain of effects on “way of life, surroundings, access to and use of infrastructure, services and facilities, community, health and well being” (see [242]). The evidence of the respondent’s experts was analytical and capable in its drawing lay evidence into material, beyond say personal or idiosyncratic perceptions, and into factors bringing weight to the contention before us. As it happens, the SIA also drew similar conclusions in relation to the analysis of lay evidence of social impacts on this particular aspect of social impact. The respondents’ experts also provided a reasoned critical analysis of social amenity related way of life impacts concerning: (1) road safety (usefully critically appraising the RSA work) and (2) noise (reasonably going beyond the ambit of the EPA guidelines as a social impact factor).
The additional truck movements would effect a notable change within the village of Paterson, through the week, which would have a significant effect on social interaction and community life. There would be inter-related effects on local businesses which we consider later. These social amenity effects would be less as the haul route approaches Maitland although the particular risks associated with the bus stops in Bolwarra and Bolwarra Heights warrant mention.
Professor Ryan’s point relating to the various beneficial aspects of the proposal are noted (see [208]) and the balancing of positive and negative impacts are considered in the concluding sections of the judgement.

There has been some considerable time between the preparation of some of the material accompanying the lodgement of the DA and the hearing dates. BG’s material on strategic justification, as at the commencement of the hearing, fell into that category. But we also heard current (lay) evidence in the course of public submissions at the commencement of the hearing. Certain points of this evidence (Ex 4 Tab 1 p 1) argued that a number of the major infrastructure projects referenced in Umwelt’s additional information report of December 2021 to IPC (Ex A Tab 21A p 41), suggested to be serviced by the quarry, had been constructed, or were well underway, despite the fact that the quarry has not been operating significantly since at least 2020-21 (Ex K).
While we were aware of the long term nature of the proposal (25 year outlook), it was also our view that it would be of assistance to the Court if updated material on strategic justification for the project were able to be made available. In turn, we invited the parties to provide further material in relation to two matters: (1) the supply side – in particular in relation to other already identified quarries supplying hard rock and whether there were any new quarries which warranted attention, and (2) the demand side – in particular in relation to significant (potentially targeted) infrastructure projects for the road haulage aspect of the proposal. With this invitation to the parties, we noted an intention to allow all parties the opportunity to respond to any new material provided.
On 19 March 2025, BG tendered updated material to the Court on strategic justification (Ex J). The first respondent provided a written response to this material (Department of Planning, Housing and Infrastructure response to Exhibit J dated 28 March 2025, marked Ex 31). The parties each made certain oral submissions in relation to the broader topic of the strategic justification for the project which we have had a mind to in drawing our conclusions.

The additional information in BG’s bundle of documents (Ex F) also included four documents headed “Hard Rock Materials Shortage”. This material involved a wider analysis. Two documents outline work of an industry association (Cement Concrete and Aggregates Australia) to encourage a more strategic approach to planning for quarrying activity to meet infrastructure demand and in particular the preparation of an integrated NSW Heavy Construction Materials Supply Strategy (Ex F p 890-893). Apart from the Brandy Hill Quarry material mentioned above, Ex F also includes a report from the statutory authority Infrastructure Australia (IA), entitled Infrastructure Market Capacity 2023 Report (IA report). Among numerous areas, the IA report engaged with the question of quarried hard rock supply.
We found the IA report provided some useful contextual information, which can be readily seen as independent and focused on the public interest associated with the delivery of infrastructure; including infrastructure reliant on the kinds of hard rock which the proposal would supply.
The report suggests there is “no single source of quantitative ‘truth’” with respect to supply of such infrastructure inputs as quarry products (Ex F p 989). The IA report relied on both published data and primary research to draw conclusions with respect to non-labour supply, including quarry materials. The primary research seemed substantial and involved both industry surveys and, seemingly, considerable telephone interviews with those with the ability to “deliver larger infrastructure projects” and “major infrastructure industry suppliers” to the “wider supply chain” (Ex F p 989).
The IA report included research and analysis in regard to “understanding demand” and “understanding non-labour supply” including with respect to “quarry supply” (labour is commonly identified as the major supply constraint (eg Ex F p 934)). With respect to the supply of quarry products, the research identified that it was “quarries that serve Melbourne, Mid North Coast New South Wales and Southeast Queensland” which were identified as being “low on supply”. This report also included a “spotlight” section on quarry products which identified capacity risks as “high”. The “key insights” in this section included (Ex F p 939):

It is clear that operation of the Martins Creek quarry would assist in the supply of hard rock for what is intended to be an ongoing rollout of important, and fairly proximate (in the sense of convenient and thus lower associated supply cost) State infrastructure, and other construction works over coming years. We also accept that there are certain features of the resource which differentiate it from other quarries in a positive sense. However, we were less convinced of the differentiation qualities in the Ex J documentation than that provided in the specialist geological assessment associated with the application (Ex A Tab 04B p 61) and cited at [265], which inferred some parity with respect to product quality at other quarries, with respect to at least some areas of high quality product demand. That is, the specialist geologist assessment provided somewhat feinter praise in our interpretation than the commentary in Ex J. We also give weight to the advice in the Department’s Assessment Report indicating that at the time a number of other identified quarries have capacity to provide the required hard rock resource (see [271]), and further rollout of hard rock quarry areas is expected (see [275]).
In turn, the non-availability of the Martins Creek product would provide a negative impact on the market supply for quality hard rock and certain, specialised manufactured product. This could be understood to result in a cost to public infrastructure provision and to various others in demand for this resource. A reference to more recent price increases for hard rock supply is made in Ex J (see [274]), however this is not supported by evidence which might allow testing of the claim. It also does not indicate the extent to which it is lack of (convenient) supply, over other pricing factors which might contribute to the increase. In relation to the suggested $58m NPV contribution to the State economy over the 25 year project life, we have not been taken to information on the extent to which this contribution would be replaced by other mines were the project not to go ahead.
On the evidence before us, the case has not been made that the negative strategic implications (or increased cost for larger public interest related construction) would be of such high order, or the Martins Creek product to be of such irreplaceability, as to almost inevitably override other effects in a DA evaluation exercise. Of note to us on replaceability is that: (1) since September 2019, Martins Creek Quarry has not supplied any significant material volumes of construction materials into the greater Hunter regional market, and (2) there is what seems to be undisputed (albeit lay) evidence on the roll-out of significant infrastructure over that period (Ex 4 Tab 1 p 1), which was a trigger for our invitation to BG to provide updated material on this topic. We also would understand that there are many factors involved in the cost equation for infrastructure development such as roads, rail, ports, hospitals and schools, which the proposal would seek to supply. That is not at all to say there is not a public interest in keeping this particular cost factor down (rock supply, specified manufactured products, along with associated road haulage).
This matter is further considered in our conclusions.

The localised benefits of the proposal are less clear than the wider strategic benefits of the proposal. There seem to be at least four unanswered queries arising on that front.
First, is that the assumption in the calculation of LEA that 100% of the inputs to production are supplied from the region might be reasonably thought to be an ambition rather than something that will definitely be achieved over the project life and would be enforceable, for example, through consent conditions and the like. For example, we note the qualifying commentary (“where possible” and “where feasible”) above at [289].
Second, is that the question arises as to what proportion of local economic benefits would be delivered if, rather than the Martins Creek quarry, other quarries in the local area were to provide the supply (and associated direct and indirect effects). Relatedly, what proportion of benefits otherwise provided by local quarries would be lost as a consequence of approval the proposal. We have not been directed to information on this.
Third, is that we accept the evidence of Ms Kanaris, having considered Professor Ryan’s evidence and assessed the various lay submissions including from local business people, that there would be economic downsides with the tripling of quarry truck traffic along the haul route, especially in Dungog LGA and especially in Paterson. We could observe during our site visit the obvious potential effects of both loss of highly convenient parking in Paterson (to well used cafes and post office for example) and the fact of closer passing quarry trucks and dogs, especially the Paterson Country Café outdoor dining where a road widening occurs. An adverse economic and job creation effect can be expected related to both tourism (Monday to Friday but not necessarily limited to that period); and associated with general local commerce (which relates to sense of community and the like discussed above). There was also persuasive oral evidence from the owner of Paterson service station and café, on this front, where it seems local employment in this facility has grown to 13 staff during this much quieter period of quarry truck use, and is concerned that a number of local businesses would be seriously affected or not survive with increased quarry truck movement through the town (Ex 4 Tab 9). These considerations have not been interrogated or accounted for sufficiently in the LEA.
Fourth, and related to more localised effects, is that even if these benefits do accrue in the LEA’s larger defined area (eg including Singleton and Cessnock, then ranging to Wollombi in the south and to Chichester in the north), to what extent might such benefits be offset against the very localised adverse effects along the quarry truck haul route. The question of distributional equity has been raised in the contentions. It might be reasonably thought to apply not only to the question of strategic benefits but also localised benefits.

We have indicated in earlier findings that the road haulage aspect of the proposal is central to the adverse impacts the projects bring about in relation to both public safety and social amenity. This does draw into attention the requirements of s 2.22(1) of SEPP Resources. That is whether we should require by condition “some or all of the transport of materials in connection with the development (to be not by) public road”.
The DA does indicate an intention to increase rail haulage. The indications are that the new longer siding would be constructed and operational in four years. The experts also indicate that conditions will improve in relation to the commerciality of rail haulage. However, in relation to the DA, there was little in the way of specific flow-on implications of the turning on of the new rail system, such as indications of the bringing down of impactful road haulage levels and to what extent (ie after construction of the rail siding and its noise treatments).
MCC and DSC submit that increased hard rock extraction levels should be limited to that which can be transported by rail, and that the feasibility of this has simply not been investigated. According to these parties, the focus of all the evidence has been on what is the most profitable of the two haulage options.
We found the Plateway evidence to examine, principally, that which was the most profitable out of road and rail; and that this was essentially based on low cost production and with relatively short time horizons in mind. The view seemed to be held, seemingly also by both experts providing evidence to the Court on this topic, that there was a market for hard rock and the competitive offering into it, in a free market, was the low cost producer. That is to say, if this quarry can supply the quarry product by road at one (relatively low) haul ($) rate to market, then if the rail haul rate was higher there was no place for it in the market – it would be “uncompetitive” (see for example Tcpt, 25 March 2025, p 326(18)-(35)).
This is a limited assessment of the question of rail “feasibility” on a number of grounds. Conceptually, it is unreasonable to assume low cost production is the only way to compete in the market. It is reasonable to understand there to be variations in costs for existing market participants today but there is participation from a number of suppliers. One line of reasoning behind this is different positions on acceptable rates of return on investment. But at a more basic level, adoption of “low cost” as a competitive strategy does not take account of other strategies to compete in a competitive market. Many working in the field of competition and associated strategy would be familiar with the work of Harvard University’s Professor Michael Porter, who described two “generic” strategies; one of which is low cost production. But value to a buyer can also be centred on a second strategy based on product “differentiation” factors according to Porter (see Michael Porter, Competitive Strategy (1980)). In this instance a point directly argued by BG is that the Martins Creek quarry product is differentiated from other hard rock supply on the basis of its quality. Geology expert evidence suggests the material is “preferential”, at least “in many cases” (see [265]). There is also no examination of the potential for improved supply reliability, as a product differentiation strategy, associated with rail, given the identified concerns with short supply of drivers in the IA research (Ex F p 939). The point we make is not that consideration of such factors might prove rail as feasible. Rather it is that the rail feasibility evidence has, for us, significant limitations in what it does cover.
But, relatedly, and more important for us on this feasibility question, is the evidence that even over the time horizon of this project, “the gap in costs between the road and rail transport options is now much closer than in either 2014 or 2021” (Ex 7 par 2.8) and that rail haulage can indeed be profitable even now under suitable conditions (Tcpt, 25 March 2025, p 327(26)-(40)). Instead of attention to a situation today where the quarry cannot now supply any volume by rail (Tcpt, 25 March 2025, p 327(12)-(13)), what would have assisted the Court here was further considered analysis of the make-up of an operating rail haul system at Martins Creek, and downstream logistics, considering some reasonable time horizon; appropriately discounted to present value. Interesting elements to factor in for us would include: naturally, the significant obvious capital upfront costs involved in the rail spur improvements, but also running truck haulage at the current lawful limits, and the holding costs of stockpiling excavated material for the rail spur construction in the eastern area of the site for the period until a rail haulage system was back on line (eg reference MCC-CS par 241).
In our consideration, the evidence supports the submissions of MCC and DSC that neither the DA material, nor the specialist work accompanying it, including the recent 2024 analysis of Mr Imrie, nor indeed the expert evidence to the Court, address the question of the feasibility of a proposition that rail haulage be employed instead of road haulage for some proportionate level of the annual haulage (say either at the currently approved level or otherwise). Further work on this question would have assisted us with respect to our need to give consideration to s 2.22(1) of SEPP Resources.
As a commercial imperative alone, it seems understandable that there be no rush to the move to rail haulage at scale. Truck haulage gives both lower cost and heightened flexibility to the supply of quarry product to the market. It is also easier to work with a pre-existing client base. But, in this case, it is clear such commercial imperatives would come at a cost to the community along the haul route. The setting is captured, in a sense, in evidence from the rail experts in response to a question on a suggested profitability focus in the Rail Logistics Report (Ex 7 par 2.27):

This State significant development proposal would bring about significant effects both negative and positive. In terms of this judgment, the setting arises where the task before the Court, in accordance with the findings of the Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [172] is to “balance the public interest in approving or disapproving the project”.
There is considerable supportive evidence for the proposal. We note the Department’s positive assessment report in that regard, also noting the further refinements of the proposal subsequently, attempting to reduce impacts. Expert evidence in support of the proposal is evaluated above. On the evidence, the most important public interest factor for approval of the proposal is that related to increased availability of quality hard rock into the construction sector, especially to serve the construction of major infrastructure including State and regional roadworks and other construction works that are significant to economic growth and of social importance. The extraction of the proposed 1.1 Mtpa of quarry product over 25 years from the site, is of a considerable scale and the grant of consent and flow on supply of hard rock would make a positive contribution at a strategic level. There are other positive effects of the proposal including in relation to improved noise outcomes in the environs of the quarry over time, localised economic effects, funding related to community programs and, although not particularly clear, improved prospects for increased use of rail haulage.
The evidence in relation to adverse impacts of the proposal is clear and strong. There are significant road safety concerns. The existing haul route has a series of identified traffic and pedestrian safety problems including a large number of high risk settings, now, as identified in the RSA and Thematic RSA. Associated risks would undoubtedly increase significantly with the tripling of quarry traffic (effecting a doubling of larger trucks through Paterson through the week). The proposed consent conditions do not provide a sufficiently clear path to resolution in our opinion. There is also considerable uncertainty in terms of general configuration of the four road improvement proposals (and TfNSW endorsement, as relevant) and importantly and even mindful of s 4.38(1) of the EPA Act, insufficient information to properly evaluate the impacts with respect to certain aspects of the three rural road improvement proposals. There is also insufficient detail in relation to impacts on the publicly important Melbourne St/New England Highway intersection in East Maitland. Finally on this topic, and while not determinative, we also note that despite all good intentions in regard to a future improved truck driver code of conduct, a sense of scepticism was reasonable in the circumstances. This acknowledges difficulties in managing quarry truck drivers in the past, even for this particular quarry, despite an existing driver code of conduct; and evidence of ongoing pressures on truck drivers indicated in lay submissions.
The evidence was also quite clear in regard to social impacts. For reasons indicated above, we preferred the evidence of the experts called by the respondents on this topic, generally. There would be significant adverse social impacts relating to road and pedestrian safety and in relation to the broader amenity along the haul route, particularly within Paterson. There is a pleasant amenity in Paterson village and its surrounds, which is supportive of social interaction relevant to the local sense of community. We accept the notion of the IPC that this place function of the main road through Paterson village, at least, would change as a consequence of tripling of quarry truck and dog traffic and result in social interaction and cohesion decreasing. Arguments by and in support of BG, to suggest that the historical use of the haul route by quarry trucks assisted a finding that amenity impacts were acceptable, were unconvincing. The case law is clear that past conduct which is unlawful should not advantage BG here. Moreover, the operating consent demonstrates an explicit finding, at the time of its determination, that this quarry would have only limited impacts on the more local road system. We also noted that the SIA directly found social amenity impacts related to truck noise as “high” for “residents along the proposed primary haul route” and for “visitors/users/residents of Paterson village” and “Paterson businesses”.
Persons particularly vulnerable to road and pedestrian safety or noise concerns would be particularly affected, such as older people, those with physical disabilities, families with young children, shift workers and those with anxiety associated with historical truck noise. There would be flow on effects on factors such as sense of wellbeing. Post approval intentions on the part of BG relating to considerably more community consultative arrangements and program funding; and preparation of a social impact management plan were unconvincing.
A cost benefit analysis for the proposal indicated positive economics both in wider strategic terms and in regard to a regional catchment. However, it was missing information on a number of fronts, including adverse effects on local commerce and tourism associated with the increased quarry truck movement; and to what extent these suggested benefits were irreplaceable or would be otherwise replaced from outputs from other quarries.
When we undertake the balancing out of the public interest in approving or disapproving the project, the public interest in disapproving the project is considerably more weighty. This is because of the extent of demonstrable negative impacts the project can be expected to bring in regard to road safety and social amenity along the quarry truck haul route, including the concomitant disbenefit at a community level, particularly in the Paterson village environs. That is to say, it is the extent and particulars of the quarry’s required haul route, rather than the operating quarry that are of key concern. On the evidence before us, the strategic and more localised benefits associated with increased supply of hard rock are significant, but not unlimited, and in all of the circumstances cannot match these adverse impacts.

Mindful of s 2.22 of SEPP Resources concerned with transport (see [302]), there may be a path open to the Court to impose the kind of conditions suggested by MCC, to require construction of the rail spur extension and noise mitigation within two years (limiting road and rail haulage to current levels until then) and once completed raise the extraction limit to 1.1Mtpa (while retaining road haulage to the existing approved limit of 150,000 tpa. This conception does have some appeal to us. But we have two concerns which are determinative on that particular question, first is that we are still missing an understanding of the feasibility of a path whereby the current approval locks in something akin to current approved road haulage levels and requires construction of the rail spur (while efforts have been made, there are limits to MCCs capacities to draw conclusions on that question). Second is that BG has made clear that this is not its application. BG saw no unreasonable impacts of road haulage at the levels it sought approved. It is unknown whether these findings may bring about a reconsideration, given the experts’ suggestion on the future increased viability with respect to rail haulage, including to the Sydney market.
Section 2.17 of SEPP Resources is concerned with the compatibility of proposed mine and extractive industry with other land uses. There are certain requirements for consideration within it which we have considered in our evaluation but can record now. We are aware of the site’s history as an operating mine and extractive industry. This has been a particular consideration in our deliberations, given that there are often significant regulatory hurdles involved in creation of new mine sites. This point is well outlined in a specialist geological report accompanying the application (Ex A Tab 4B, p 50). We note that there is still potential for extraction of the resource given the evidence of increasing commerciality of rail haulage into the future, including into the Sydney market.
We have also considered approved land uses in the vicinity of the development. What has become a determinative matter in this case, in relation to public benefits and disbenefits is the road haulage aspect of the proposal. There are associated impacts concerned with public safety and social amenity. In terms of the question of preferred land uses and inter-compatibility, when we balance things up, it is preferable that these land uses not be impacted upon to the extent which would occur were the proposal to be approved.

Buttai Gravel Pty Ltd v Independent Planning Commission

At a glance

Court

Decision date

Before

Catchwords

Source

Email me a plain-English summary of this case

Catchwords

Judgment

JUDGMENT

The refusal of a fresh development application for Martins Creek Quarry is appealed

Background

The site and locality

Pre-existing quarry operations

Recent quarry-related activities and legal proceedings

The development application: amendments, consultation and assessment

Application before the Court

Assessment framework

State Significant Development

Dungog Local Environmental Plan 2014

State Environmental Planning Policy (Resources and Energy) 2021

Development control plans

Issues in dispute

Road safety and traffic considerations

Background

Contentions relating to this topic

Expert Evidence

Four intended sites for road works

Procedural considerations

Owner’s consent

Findings

Merits considerations

Site 1 - New Quarry Access Road and Dungog Road

Site 2 - Gostwyck Bridge

Site 3 - Gresford Road and Dungog Road

Site 4 - King Street and Duke Street Paterson

Finding

Inter-relating ss 4.15(1) and 4.38(1) of the EPA Act

Residual road safety concerns

Expert evidence

Findings: residual road safety considerations

Impact on the Melbourne St/New England Highway intersection in East Maitland

Evidence

Findings

Noise impacts

Contentions relating to this topic

General acceptance that the proposal is adequate with respect to noise-related regulatory criteria

Haulage route noise

Operational noise

Social impact

Social impact assessment guidance

Contentions relating to this topic

The process of social impact assessment in support of the proposal

Social baseline

Differing expert interpretations

Finding

Foundations of Social Impact Assessment accompanying proposal

Finding

Particular social impacts

Selected topics and evaluation approach

Note on expert evidence

Social impact related to quarry trucks and pedestrian and vehicle safety

Finding

Vulnerable groups

Finding

Social impacts related to amenity

Findings

Strategic benefits of the proposal

Contentions relating to this topic

Question to the parties and response

Buttai Gravel’s reference material

Demand for hard rock as of relevance to the proposal

Supply

Findings

Localised benefits

Findings

Rail feasibility

Context

Evidence