CEAL Limited v Minister for Planning & Ors

CEAL Limited v Minister for Planning & Ors - [2007] NSWLEC 302 - NSWLEC 2007 case summary — Zoe

[22]

8 The site is mostly cleared grazing land and has an area of about 185 hectares, of which about 76 hectares would be affected by the development. The site is 4 kilometres south of Bungonia, 25 kilometres southeast of Goulburn and about 160 kilometres south of Sydney. The site is zoned 1(a) (General Rural) under the Mulwaree Local Environmental Plan 1995 (the LEP). The areas surrounding the site are also zoned 1(a) and used for various agricultural purposes. Clause 2 of the LEP identifies its general aims and objectives. The LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions), including most of the definitions (cl 6). Under cl 9(3), except as otherwise provided, the Council must not consent to the carrying out of development on land to which the LEP applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. The objectives of the 1(a) zone are expressed as follows: The objectives of this zone are to promote the proper management and utilisation of resources by: (a) promoting, enhancing and conserving: (i) agricultural land, particularly prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential, (ii) soil stability by controlling and locating development in accordance with soil capability, as identified by the Department of Conservation and Land Management, (iii) forests of existing and potential commercial value for timber production, (iv) valuable deposits of minerals, coal, petroleum, and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, (v) trees and other vegetation in sensitive areas and in any place where the conservation of the vegetation is significant to the protection of scenic amenity or natural wildlife habitat or is likely to control or contribute to the control of land degradation, (vi) water resources and water catchment areas for use in the public interest, (vii) localities of significance for nature conservation, including localities with rare plants, wetlands, permanent watercourses and significant wildlife habitat, and (viii) places and buildings of archaeological or heritage significance, including aboriginal relics and places, (b) minimising the costs to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (c) providing land for future urban development, for rural residential development and for development for other non-agricultural purposes, in accordance with the need for that development, and subject to the capability of the land and its importance in terms of the other objectives of this zone.

[29]

15 Section 117 of the EPA Act enables the Minister to direct a council or public authority to exercise functions under the Act. The Minister has made a series of directions under that section, including general directions to all councils and specific directions to nominated councils. On 6 December 1994, general direction G28 - coal, other minerals, petroleum and extractive resources was notified in the NSW Government Gazette. The direction requires councils to consult with the Department of Mineral Resources when preparing local environmental plans that are likely to prohibit or restrict the mining of minerals and extractive resources. It also requires the Department to notify councils of the location of known and potential mineral resources. In April 2004, the Department notified areas containing operating mines/quarries, identified mineral resources and potential mineral resources. The notice states its purpose as assisting in better land use planning decisions to "steer development away from areas containing important mineral resources where possible so as not to sterilise them unnecessarily". The notice records that most extractive resources such as sand, gravel and hard rock aggregate are not classified as "mineral resources" administered by the Department, but the Department had an accepted role in advising at State level about those resources. After 6 December 1994, the Department identified areas for high, medium and low priority ratings for notification. All high and most medium priority areas had been notified. The April 2004 notice was triggered by the amalgamation of councils. Site 24 in the notice is Ardmore Park, an identified resource of construction sand and coarse aggregate. The notice contains a plan identifying a "buffer zone" around the site. This plan says that development could adversely affect or be affected by future quarrying/mining operations, so that any local environmental plan altering zoning which may restrict or prohibit mining or quarrying should be referred to the Department for comment. The buffer zone shown on the plan extends beyond the boundaries of Ardmore Park. On 16 July 2006, in response to correspondence from the local member, the Minister for Planning clarified that this buffer zone "has no statutory status and is simply advice that the Council should take into consideration when it is preparing its new LEP" and the Director-General would inform the Council that "the Department does not support the inclusion of the buffer zone as a separate zone or sub-zone in its new LEP".

[35]

(3) As all the roads were public roads and the upgrading works could be carried out within the designated public road area (albeit not within the existing sealed carriageway or formed shoulder widths at all locations), they ordinarily would not require development consent, but would be subject to assessment under Pt 5 of the EPA Act (see cl 6 of the LEP and cl 35 and item 8 to Sch 1 of the Model Provisions). The Council was the relevant roads authority for all roads involved and thus was the (or, I anticipate, a) determining authority under Pt 5 with respect to those works. However, by operation of cl 8J(6) and (7) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation), the road upgrading was part of a development application subject to a savings regime. The savings regime required the development application to be determined as if the amendments made to the EPA Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made. Accordingly, the repealed s 76A(8) of the EPA Act applied. That section provided that: (8) If: (a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and (b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and (c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent. Hence, the road upgrading required development consent under Pt 4 of the EPA Act. (4) Although the amended development application had sought development consent for the road upgrading, it had not been accompanied by the consent in writing of the owner of the road, the Council. Section 39(2) of the Land and Environment Court Act 1979 (the LEC Act) did not apply as the "person or body whose decision" was subject to the appeal within the meaning of that provision was the Minister not the Council. Accordingly, the Court could not exercise the Council's functions as the owner of the road to give owner's consent to the development application (a function which, I note, the Court could have exercised if the Council were the consent authority whose decision was subject to the appeal - see, for example, Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329).

[36]

(5) For these reasons, the options available were to: (a) assess the proposed quarry absent any assessment of the upgrading of the haul route (other than perhaps preliminary findings resolving the engineering dispute between Mr Hallam and Mr Samsa) and to publish findings, but make no orders, about that assessment. If the findings were favourable to the quarry, adjourn the proceedings to enable the applicant to seek the owner's consent of the Council to the development application and supplement the development application by an environmental assessment of the proposed road upgrading. After these steps had been taken, determine the development application; or (b) assess the proposed quarry absent any assessment of the upgrading of the haul route (other than perhaps preliminary findings resolving the engineering dispute between Mr Hallam and Mr Samsa). If the findings were favourable to the quarry, determine that part of the development application relating to the quarry under ss 80(3), (4) and (5) of the EPA Act, subject to a deferred commencement condition requiring further development consent to be obtained to the upgrading of the haul route. If and when the applicant obtained the owner's consent of the Council to that part of the development application and supplemented the development application by an environmental assessment of the proposed road upgrading, the Court could then determine that part of the development application relating to the road upgrading. (6) If, contrary to the applicant's position, the road upgrading did not form part of the development application, then those works would be subject to Pt 5 of the EPA Act. As the Council was the relevant determining authority under Pt 5 and not the Minister, s 39(2) of the LEC Act would not be available. Accordingly, option (a) would be inappropriate. Option (b) would be appropriate. The suggested deferred commencement condition would need to be redrafted to reflect the need to obtain all necessary approvals for the carrying out of the road upgrading.

[40]

21 Neither respondent specifically raised an issue in their respective statements of issues that the proposed quarry development could not be granted consent because there was insufficient information about the road upgrading, but this is not material for six reasons. First, both respondents raised the inadequacy of the proposed transport route to accommodate the development. Secondly, the question whether the road upgrade formed part of the development for which consent was sought, or was to be addressed by condition, was open to argument. Thirdly, the applicant controlled the content of its development application and was responsible for any ambiguity about the development for which consent was sought. Fourthly, the competing positions of the parties identified above are so obviously central and fundamental to the proposed development and the resolution of the appeal that they must be addressed irrespective of the issues as framed by the parties. To proceed otherwise would be inconsistent with the Court's obligation under s 39(4) of the LEC Act (in "…making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest"). In satisfying that obligation, the Court is bound by the dictates of natural justice. With that in mind, fifthly, I indicated to the parties before closing submissions that I required assistance on understanding their positions on the road upgrading having regard to the available information. In consequence, and finally, all parties had an adequate opportunity to address this matter and make such applications and submissions as they saw fit. 22 Section 79C(1) provides that in "…determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application…". This obligation has been understood as involving a process in which the consent authority is bound "to take into consideration the relevant considerations, to weigh them one against the other, and to determine what, in the light of those considerations, should be done" (BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279. See also Weal at [80] - [81]).

[49]

(2) The evidence of Mr Hallam and Mr Samsa demonstrates that the existing condition of the proposed haul route is inadequate and inappropriate. Hence, their competing recommendations for upgrading the road infrastructure to accommodate the proposed development. Their evidence, despite the dispute about the extent of the upgrading required, is consistent with all other information available about the roads, including the extensive view. (3) The proposed upgrading, particularly along Jerrara Road, does not involve obviously minor or trivial works unlikely to generate any potentially material environmental impacts or associated controversy. The recommendations for upgrading carry a clear potential for environmental impacts associated with activities such as removal of vegetation, filling or diverting of watercourses and filling of gullies. This is so whether the upgrade is carried out in accordance with the recommendations of Mr Hallam or Mr Samsa. (4) Planning decisions, particularly for large developments, may involve different decision-makers or sequential decision-making processes, as conditions of development consent not uncommonly disclose. In this case, the operational features of the proposed quarry potentially affect the extent and nature of required road upgrading and the associated conditions. The amended development application does not enable the Court exercising the functions of the consent authority or other people with an interest in the outcome of the application to reach a reasonably informed view about the potential interaction between the relevant operational features of the quarry and potential environmental impacts associated with the upgrading of the roads. Option (b) assumes that the ultimate protection from unacceptable environmental impact is the capacity to refuse to permit the road to be upgraded, in which event the deferred commencement condition will not be satisfied, the quarry may not proceed and no harm will be done. In one sense, this is true. But it also discloses why adopting option (b) is inappropriate. The consent the applicant now seeks will determine the number of heavy vehicle movements per day consequential on the quarrying operations, the hours during which those movements may appropriately occur and if there should be any hours during which those movements might appropriately be restricted, such as when the school bus is operating. In so doing, the consent will fix the parameters for any later assessment of the road upgrading, as the road upgrading will be to accommodate the consequences of the quarry's operation. Absent the agreement of the applicant, there will be little, if any, capacity to modify the operations of the quarry to avoid or ameliorate potential impacts associated with the road upgrading even though, with the benefit of hindsight, this would be the appropriate course.

[56]

(2) The Bungonia Progress Association Inc objected to the impacts on the village, identifying those impacts as a "critical issue" and requesting that the village be by-passed. The Association's objection included a submission from the trust identifying Bungonia Park as an integral part of the village since the subdivision was drawn up in 1832, being "an essential element in local recreation, visual attractiveness, tourist facilities and landscape intactness of Bungonia village". The submission referred to various park users, including local residents, local children, the wider Bungonia community and tourists. (3) The Committee of the Bungonia Times objected to the quarry traffic, including on King Street, as it would undermine the existing pleasant country roads they travelled to deliver their community newspaper. (4) Mr and Mrs Bayliss, who live in King Street, Bungonia, objected to the "disruption of our rural lifestyle via noise, pollution, unsafe roads and decreased visual amenity" as well as the impacts on community events, including the historical society which hosts events throughout the year attended by locals and tourists. (5) Mr and Mrs Boyd from Tallong were concerned about the impact on "peace and tranquillity" of Bungonia village and its capacity, by reason of these features, to attract tourists to the area. (6) Mr and Mrs Bilton of Lookdown Road, Bungonia, considered that the community had put a lot of effort into its public spaces and that the truck movements per day were not appropriate through the "tiny historic rural village". (7) Mr or Ms Griva objected to the village becoming a quarry haul route and also objected to the proposed road widening as changing the amenity and character of the village. (8) Mr McGinity, who lives in King Street, Bungonia, referred to the park and the village as a "unity". He was concerned that using King Street as a haul route would "separate the park from the village" and destroy the peace and tranquillity of the village. (9) Mr and Mrs Moran, who run Moran Scientific from the old schoolhouse, referred to the large area of parkland and adjoining creek as a central theme to the village, attracting tourists from the Bungonia conservation area. They considered that Bungonia should be protected from heavy vehicle movements as proposed for this and other reasons (including vibration impacts on their business). (10) Mr and Mrs Papadopoulos, recent purchasers of a home in King Street, Bungonia (after the Minister refused the quarry), wished to retain their country life intact in the "beautiful and peaceful village". (11) Ms Smith of Yarralaw Road, Bungonia, was concerned about the destruction of the peaceful village atmosphere, as was Ms Westley of 8 King Street, Bungonia (the old police station now used as a residence). (12) Ms Styles, a visitor to Bungonia, considered that Bungonia village and the peace of its inhabitants must be preserved. Ms Wall, another visitor, shared similar concerns.

[68]

49 Mr Hallam accepted that the increase in heavy vehicle movements was substantial but did not consider the increases significant in traffic engineering and environmental criteria terms. The flows would remain extremely low, with the additional truck movements representing one truck every 15 minutes. The additional movements raised no pedestrian safety concerns. For example, between 8 and 9am the counts showed one vehicle movement every 92 seconds. With the quarry trucks, this would be reduced to one movement every 84 seconds, whereas it takes about 6 seconds to walk across a 6m road. The applicant had offered to construct a footpath on one side of King Street, but this was not necessary in traffic engineering terms. The RTA's Guide to Traffic Generating Developments recommended an environmental goal for a local residential street of 200 vehicles per hour. Projected King Street peak flows would be less than 50 vehicles per hour. Mr Hallam, based on the information available, concluded that the development would not cause any unacceptable amenity impacts. With respect to alternative transport routes, Mr Hallam believed Mr Samsa had not been provided with the original environmental impact statement (although, I note, the same information is contained in the amended environmental impact statement). All three alternative road routes required substantial improvements, with the key disadvantage being their length. With the primary market now being Sydney not Canberra, Mr Hallam calculated the additional transport costs for the alternative routes, which varied from 6 to 65 km longer than the selected route, with two of the alternatives still passing through the village. Mr Hallam did not address the two options in the environmental impact statement for combined road and rail transport, one of which avoided the settlements of Windellama and Sandy Point. I note that Windellama and Sandy Point are not identified as villages in the settlement strategy. Mr Hallam also referred to the letter from the Roads and Traffic Authority about the original proposed development, although that letter appears more relevant to the issue of the road upgrading than amenity. Similarly, I consider the B-double route assessment guidelines to be relevant to road upgrading, rather than amenity.

[86]

67 The applicant submitted that the impacts of hauling extractive materials through the village of Bungonia were acceptable because those activities would satisfy available objective criteria (specifically, the ECRTN, the vibration criteria and the Guide to Traffic Generating Developments). I accept that a consent authority should have regard and give weight to published guidelines providing objective criteria to facilitate assessment of issues arising in land use planning decisions. Nevertheless, insofar as this submission might have suggested that considering the performance of the development against the available objective criteria exhausted the assessment under s 79C(1), I do not accept it. For example, the ECRTN does not cover all types of likely impact or all aspects of amenity. Insofar as it deals with one aspect of amenity (road traffic noise), the ECRTN applies generally throughout NSW. The Council's settlement strategy refers to the environmental criteria not being compromised, but that is quite different from the notion that compliance with the ECRTN exhausts the necessary or appropriate consideration under s 79C(1). Finally, the ECRTN does not have statutory force. Contrast, for example, the statutory provisions with respect to non-discretionary development standards in s 79C(2) and the capacity to prescribe relevant considerations in s 79C(1)(a)(iv) and the associated cl 92 of the EPA Regulation. Similar considerations apply to the Guide to Traffic Generating Developments. I infer from the evidence that: - (i) this guide applies throughout NSW, (ii) the category "local residential street" does not distinguish between rural and urban streets, and (iii) the environmental goal of 200 vehicles per hour does not distinguish between types of vehicles. Accordingly, I do not accept the notion that the development is necessarily acceptable provided the consequential traffic flows remain below 200 vehicles per hour. That is part of, but does not exhaust, the relevant assessment.

[87]

68 With respect to the reasonableness of the impacts, the applicant submitted that, consistent with Mr Chambers' evidence, they would be experienced for a very short time each hour. Further, Mr Darroch's evidence about the village attracting other members of the community was overstated. When he was present it was for the purposes of meeting people in the context of the appeal. The evidence about impacts on village life, when analysed, was "extraordinarily thin", according to the applicant. The overall noise increase would be 1 to 2dBA, which the environmental impact statement said was a marginal noise level increase not noticeable by most people. The applicant was also willing to resurface King Street with a stone mastic asphalt surface, which would substantially reduce noise impacts from all traffic along King Street, by up to 8dBA according to the Road and Traffic Authority's Environmental Noise Management Manual. This was an important factor in favour of the development. Another important factor was the relatively small number of people likely to be affected. The impacts on amenity, the applicant submitted, would be within reasonable bounds. Expectations to the contrary were unreasonable in all the circumstances. Those circumstances included the objectives of the 1(a) zone, the advice under the s 117 direction identifying this resource and the information in the environmental impact statement about the value of the resource. Moreover, nothing in the LEP suggested that the current minimal truck traffic through the village is to be maintained. The Lynwood and Marulan south quarries involved extracting different materials and did not include sand (as opposed to manufacturing sand on site). The respondents' criticisms about the inadequate assessment of alternative routes in the environmental impact statement were unjustified. The substantial disadvantages of the alternative routes had been clearly disclosed. Hence, ample information was provided to warrant the selected route. Given that the selected route satisfied all objective and reasonable criteria, there was no warrant for any further consideration of alternatives that were entirely unreasonable. Accordingly, the proposed haul route involved what the applicant described as a predicable, reasonable and legitimate use of the public road network.

[88]

69 In Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66 I observed that the objects of the EPA Act contemplated that development would stimulate social and economic change. Hence, the mere fact of change could not indicate its appropriateness. The parameters for assessing the propriety or otherwise of change could not be "personal values or idiosyncratic perceptions", which would be the antithesis of environmental planning as contemplated by the EPA Act, specifically "the making of development control decisions in a strategic planning context established by publicly available criteria, determined by planning authorities as part of a process in which the public has had extensive opportunities to participate" (at [26] - [27]). Precisely the same principles apply where the change in question involves amenity rather than social and economic relations. The principle that unfounded fears about impacts on amenity are not material, no matter how widespread, also applies. Hence, concerns absent any rational foundation are not to be given weight, whereas the "objective, specific, concrete, observable" consequences of development are relevant. This latter principle, however, is not a warrant for unjustifiably restricting the concept of "amenity". "Amenity" has consistently been described as a wide and flexible concept, embracing such matters as the character of a place and the attributes of place which a community values as important contributors to its character. (See the discussion and authorities cited in New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [53] to [64] per Lloyd J and Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190] to [208] per Preston J). The likely impacts of development (s 79C(1)(b)) include impacts on amenity understood in this sense. Once the concept of "amenity" is understood in this manner it is apparent that resolution of the debate about the nature, extent and propriety of the impacts on the village of Bungonia should be answered in the broad strategic planning context discernible from the available material.

[89]

70 The applicant relied on the objective of encouraging the efficient extraction of valuable resources as an important factor in the assessment. I accept that the broad strategic planning context discernible from the LEP, the s 117 direction and the associated advice from the Department of Mineral Resources includes seeking to encourage the efficient extraction of valuable resources. The site contains identified basalt and sand resources that, if extracted, would contribute to some extent to the availability of these resources in the Sydney construction market. The application and other available information does not disclose the current relative importance of this resource to Sydney. The environmental impact statement was prepared in 2005. It contains some information about the resource, but not sufficient to make any real assessment of the weight this factor should appropriately be given. The amendments made to the environmental impact statement in late 2006 were limited to matters consequential on the Hallam report. The consents to the Lynwood and Marulan south quarries in December 2005 and early 2007 are relevant to the claims in the environmental impact statement about the development satisfying a need for alternative sites to provide resources to the Sydney construction market given the foreshadowed cessation of supply from the Penrith Lakes Scheme. Although the Lynwood and Marulan south quarries involve different types of hard rock from the proposed development and sand manufacturing rather than sand extraction, the reports to the Minister about these quarries refer to the resources extracted from them satisfying the same need. The volume of resources available in those quarries, as well as the volume able to be extracted per annum, far exceeds the volumes involved in the present application. Comparison between the volumes suggests that the resource on the site, when considered with the capacity for its efficient extraction, is unlikely to be of major significance to the Sydney construction market. Although I accept, as I have said, that the broader strategic planning context includes seeking to encourage the efficient extraction of valuable resources and the site contains an identified resource, I do not consider the available information warrants substantial weight being placed on the development's capacity to satisfy an identified need of general importance to the Sydney construction market.

[94]

75 The references in the environmental impact statement to increases of 1 to 2dBA not being noticeable were in the context of operational noise. I infer that this relates to a constant noise source. Four articulated trucks traversing King Street each hour would not be a constant noise source. I anticipate that the character of this noise will be different from operational noise. The short period of time during which each passage would be perceived also does not alter the fact that, with the quarry fully operational, 4 additional articulated vehicles each and every hour of the daytime Mondays to Saturdays (excluding public holidays) will pass along King Street (increasing to six per hour for two operational hours per day). Maintaining the amenity of King Street is important to the immediate and broader functions of the village as a whole. The zoning extracts and subdivision plan of the village disclose the role of King Street connecting the residential development on the eastern side of the road with the public lands on the western side where the park is located and access to the creek is obtained. The quarry vehicles, by reason of their size, frequency and routine presence through the village, would be likely to adversely affect the relationship between the main residential area and the available community facilities. The pleasant ambience of those public places also would be dramatically altered for all but the most fleeting visitor. So too would the pleasant ambience of the outdoor areas of the properties fronting King Street, which I am satisfied makes an important contribution to the enjoyment of life of the people residing there. Becoming part of a dedicated haul route to the Hume Highway would fundamentally alter the character of the village, visually, acoustically and by reference to the less tangible qualities that contribute to that character - the quiet ambience, the pleasant pedestrian environment absent formal and defined pedestrian paths, the easy and free flowing relationship between the main area of residential development and the park, and the capacity to fully use and enjoy outdoor spaces. Compliance with the ECRTN, the 200 vehicles per hour environmental goal referred to by Mr Hallam and vibration criteria does not remove these real and direct impacts of the quarry on the village of Bungonia.

At a glance

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Judgment (97 paragraphs)

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Cited By (9)