role of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
acoustic impacts
visual impacts
Source
Original judgment source is linked above.
Catchwords
Proposed quarry expansionrole of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007acoustic impactsvisual impactswhether any public benefit of the proposed quarry is sufficient to outweigh its adverse impacts(2009) 168 LGERA 260
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153
Judgment (67 paragraphs)
[1]
Precis of the decision (this precis does not form part of the decision)
[2]
The reconstruction of the bund adjacent to the Woolley residence is unacceptable on acoustic impact grounds. A reconstructed bund adjacent to the Woolley residence is unacceptable on visual impact grounds. Both these grounds separately are sufficient to reject this structure. Rejection of this structure would require rejection of the proposed quarry in its entirety. There are other acoustic impacts of construction activities that would require rejection of the proposed quarry in its entirety. There are further, lesser impacts that would not require rejection of the proposed quarry in its entirety but which, when accumulated with other impacts, would all collectively require rejection of the proposed quarry in its entirety. There are insufficient public benefits to outweigh the adverse impacts and thus the quarry expansion is rejected. No costs order pursuant to s 97B of the Environmental Planning and Assessment Act 1979 is warranted, as the most recent amendments to the development application should be regarded as minor.
[3]
INDEX
Topic Paragraph
Introduction to Champions Quarry 1
The scope and outcome of the earlier proceedings 8
The nature and history of the final proposal 13
The parallel Part 3A application to the Minister 37
The unfolding of the proceedings
Introduction 40
The first phase of the hearings 46
The second phase of the hearings 61
The third phase of the hearings 64
The fourth phase of the hearings 75
The fifth phase of the hearings 94
Closing submissions 98
The relevant planning framework
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 - introduction and cl 2 - Aims of the SEPP 99
Cl 5 of the Mining SEPP 103
Cl 8 of the Mining SEPP 106
The role of the Lismore Local Environment Plan 2000 112
The Lismore Development Control Plan 2007 113
Cl 12 of the Mining SEPP 118
Other clauses of the Mining SEPP 142
The issues 144
The amber light approach 147
Consideration of the issues
Visual impact
Introduction 152
The longer view from the north-east 153
The Wadsworth residence 155
The Woolley residence 171
The White residence 181
The view from Tuckurimba Road residences 191
The view from Wyrallah Road in the vicinity of the Wadsworth residence 193
The acoustic acceptability of the proposal
Introduction 199
Construction noise 202
Initial basis for assessment - the applicant's case at its highest 211
The Woolley bund 222
Other construction noise impacts 228
Operational noise 238
Adjustment of bund heights and moveable barriers 248
Importation of material for the push up and over bund 258
Final conclusion on acoustic impacts 260
Quarry operations in the southern extraction area
Introduction 267
The acceptability of the push up and over bund 269
The geotechnical adequacy of the push up and over bund 290
The question of the public benefit [cl 12(b) of the Mining SEPP] 297
Ameliorative measures [cl 12(c) of the Mining SEPP] 347
Consideration of cl 14 of the Mining SEPP - greenhouse gasses etc 366
Consideration of cl 15 of the Mining SEPP - resource recovery 373
Consideration of cl 16 of the Mining SEPP - transport 376
Consideration of cl 17 of the Mining SEPP - rehabilitation 378
Conclusion - balancing unacceptable impacts against the Mining SEPP 381
Other matters
Aboriginal cultural heritage issues 382
Air quality issues 397
Ecological issues 400
Inadequate information 431
Roads and traffic issues 435
Water issues 442
Costs pursuant to s 97B - Are the push up and over bund changes minor amendments? 447
Summary of conclusions 461
Orders 489
[4]
Introduction to Champions Quarry
1In Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207, an earlier case concerning the quarry lands that are the subject of these proceedings, the setting and general nature of the present quarry operations were described in the following terms:
The rolling hills and the small valleys of the coastal hinterland to the south-east of Lismore host many differing activities of residents and businesses of the region. Amongst them, in that rural and rural residential landscape, is located a small sandstone quarry known as Champions Quarry. The quarrying activities are extracting ripped and broken sandstone from a pit that faces, generally, north-east from the bottom half of the southern slope of one of these valleys.
2The total land that encompasses the quarry lands (the site) of the proposed expanded quarrying operations is ~ 188 ha. In general terms, it comprises the bulk of a gently sloping bowl-shaped valley that has three watercourses that drain in a north-east direction until leaving the site where, after meandering in a number of other directions through other landholdings not associated with this quarrying enterprise, they flow through a drainage system (one that has allowed former wetlands, known as the Tuckean Swamp, to be used for agricultural purposes) prior to discharge via that generally dry (but now still floodplain) to the nearby Richmond River. A map from the Updated Environmental Impact Statement showing the general location and shape of the quarry lands is reproduced below:
[5]
3The site is generally cleared but has two significant pockets of remnant rainforest vegetation located in central-western and south-western re-entrants running east from the north/south ridge line upon which Wyrallah Road is located. Wyrallah Road is a regionally significant road that carries modestly heavy truck and freight traffic (as discussed later in this decision).
4In the immediate vicinity of this valley, there are a number of residences that are located on allotments of modest size but sufficient to support some rural activities. The relevant zoning permits the erection of residences when these are associated with the carrying out of rural activities. This is a classification that is to be distinguished from more conventional rural residential style of development on an ordinary large allotment basis.
5Within the immediate vicinity, there are residences to the north, east, southwest and west of the site. These residences are those that require our examination to assess what impacts, if any, the various elements of the proposed expanded quarry operation might have at those locations. As will be seen later, that assessment will necessitate consideration of possible visual and acoustic impacts at the closest residences in each of those directions.
6There is, also, within the boundaries of the site, a residence occupied by Mr Matthew Champion, the son of Mr Jeffrey Champion. Mr Jeffrey Champion is the guiding and controlling mind of the applicant (all subsequent references in this decision to Mr Champion are to Mr Jeffrey Champion unless otherwise expressly nominated to the contrary). As this residence is classified as an associated residence, there is no need to consider any impacts on it.
7This associated residence is located to the east of the central extraction area, described below, and it and a number of other residences (considered in our assessment of impacts) are accessed by Hazelmount Lane, a generally unsealed rural laneway that is, in turn, accessed by Mathieson Lane, an also unsealed rural laneway, with a junction with Wyrallah Road approximately 500 m to the north of the entrance to the quarry.
[6]
The scope and outcome of the earlier proceedings
8In the Reavill Farm proceedings noted above, an appeal concerning an application made to Lismore City Council (the council) was dealt with to regularise an earthen bund and associated earthen mounds that had been constructed, without appropriate development consent, along part of the eastern edge of the site. This bund is in close proximity to the boundary between the site and a property upon which the Woolley family reside in their dwelling.
9The Reavill Farm proceedings dealt with an application, pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 (the Planning Act), to modify the existing development consent that operates for the presently more modestly sized quarry - compared to the present proposal - that operates in an area to be designated as the central extraction area if the proposed quarry expansion is approved.
10The Reavill Farm proceedings rejected, on jurisdictional grounds, the legitimisation of the bund in the vicinity of the Woolley residence (this bund, for convenience, being referred to throughout the remainder of this decision as the Woolley bund - in order to distinguish it from a wide range of other bunds proposed to be constructed as part of the quarry expansion proposal).
11The Reavill Farm proceedings did not deal with (and did not need to deal with) any issues associated with the acceptability of any impacts that might arise from the Woolley bund as it was determined that the existing quarry consent, if modified by approval of the Woolley bund, would not be substantially the same development as that which had originally been approved. This finding meant that there was no jurisdiction in those proceedings to consider the merits of the Woolley bund.
12The consequence of the Reavill Farm proceedings is that, although the Woolley bund is in existence as a matter of fact (and, indeed, is proposed to be reconstructed as part of the works for which consent is sought in those proceedings), in these proceedings we are obliged to treat the Woolley bund as not being present for the purposes of a number of relevant elements of our merit assessment. The full history of the evolution of the Woolley bund can be seen in the Reavill Farm decision and it is not necessary to reproduce that detail in this decision.
[7]
The nature and history of the final proposal
13Essentially, the nature of the application in these proceedings seeks the expansion of the annual permitted output of the quarry from either 50,000 tonnes per annum of sandstone and sandstone derived products or 64,000 tonnes per annum of such products (a difference that is not material in these proceedings but arises from interpretation of the existing development consent) to an annual output of 200,000 tonnes per annum and an expanded quarry life to 20 years or so from the date of approval of an expansion application.
14The expanded quarry production is intended to come from three extraction areas. As earlier noted, the present comparatively small-scale quarry will be expanded and is to be designated the central extraction area. When it has been exhausted, by excavation to a lower depth than the present quarry floor and with the recovery of more materials from the benches to the west, the area on the floor of the central extraction area will be used as a processing and stockpile facility. Material from the other two extraction areas, described below, will, at least in part, be trucked to the central extraction area pit floor for processing or stockpiling prior to being distributed to customers. As we understood it, some material from the other extraction areas may also be delivered direct to its end user.
15It is intended that the upper slopes of the central extraction area will be revegetated and, as discussed later, we were shown an example of revegetation at the upper western slope of the present quarrying activities during the course of one of the site inspections.
16The second phase of the quarrying activities involves extraction of material from the proposed southern extraction area. This phase of the quarry involves the excavation of virtually all of the central and eastern elements of the ridgeline that runs from Wyrallah Road, in a generally easterly direction, 100m or so to the south of the central extraction area.
17It is proposed that extraction of material from the southern extraction area will commence at the western end, that is in the saddle of the ridgeline, by utilising what is described as a push up and over bund (described in detail later in the section on quarry operational matters). It involves, in addition to this bund, the construction of two additional bunds. One is to be a bund known as the stepped bund that will run down the northern face of this ridge. The other is to be a perimeter bund, around the top of the total proposed extraction area whilst extraction is continuing within the bund of this ridge as described later. This perimeter bund, agreed during the course of the proceedings to be modified so as to completely encircle the quarrying activities within the ridge (except for the area at the north western end where there is to be the push up and over bund). This is necessary for acoustic and visual shielding of the activities in this extraction area.
18The push up and over bund was not originally specifically described in the operational methodology for the quarry. Its evolution, during the course of the proceedings, is a matter discussed in more detail later. However, in its final form, this bund is proposed to be constructed as the first phase of quarrying activities in the southern extraction area.
19It is anticipated by the applicant's quarry management expert advisors that sufficient appropriate material for the construction of this bund will be available from the first two cutting levels in this portion of the southern extraction area.
20The push up and over bund is proposed to operate in a fashion that has a gentle slope on its inner material extracting side, within the ridgeline in a significantly steeper slope as its outer face to the north. A D8R bulldozer is proposed to be used, at least until harder sandstone is encountered at what are anticipated to be lower levels within the ridge, to rip material and push it up the slope toward the top of the push up and over bund. The bulldozer is to stop short so that there is no safety risk to the operator of that equipment.
21On the outside, shielded visually and acoustically by the stepped bund running down the face of the ridgeline, is proposed to be located a work pad where there will be an excavator and adjacent a loading space for trucks. The excavator, as we understand it, is intended to be what we would describe as a long neck excavator. It will be able to pull down material from the outer face of the push up and over bund if this becomes necessary.
22There are two acoustically related matters that it is appropriate to note concerning this activity. The first is that the design of the push up and over bund (and its bulldozer operation behind it) is intended to ensure that there will be no acoustic impact caused by the pushing of material to the lip of the bund and its delivery over the top to the excavator waiting below. The second matter to be observed is that for operational safety reasons as well as acoustic protective reasons, the excavator on the outer, northern delivery pad will not operate whilst ever the bulldozer is pushing material up and over the bund.
23It is then envisaged that extraction within the southern extraction area will continue behind the perimeter bund and cut down into the heart of the ridgeline, creating a quarry crater that is entirely contained within the bund of the ridgeline itself, thus using the external topography of the ridgeline for ongoing visual and acoustic shielding of surrounding residences. This resulting landform was described as being like a volcano crater in shape.
24As the internal extraction of materials within the ridgeline progressively lowers the floor of the quarrying activity within the ridgeline, so too will the upper level of the push up and over bund and associated activities outside the crater be modified outside this bund.
25As the floor of the inner quarry workings within the ridgeline progresses downward to the eventually planned lowest level of extraction, the push up and over bund will, itself, be progressively lowered. However, at a later stage of the activities of the southern extraction area, there comes a point that is described as "break out", where there will be direct access, behind the stepped bund, from the quarry floor out to the haul road from the southern extraction area to the central extraction area and onward to Wyrallah Road.
26Eventually, when entirely worked out, all that will remain of the southern ridgeline will be a narrow residual element that, to continue the volcano analogy earlier used to describe the crater-like quarrying activities in this area, will result in a topographic feature not unlike an element of the caldera from an extinct volcano.
27It is intended that this residual slope on the (then) northern face of the southern extraction area will be rehabilitated and vegetated as part of the rehabilitation and stabilisation. The southern side will remain the present escarpment of the existing ridge line.
28The final proposed phase of the expanded quarry involves extraction of material from the north-facing slope of the valley on the northern side of the present access road to the central extraction area. This is to be known as the northern extraction area. Quarrying of the northern extraction area is not proposed to commence until some fifteen years after the commencement of the expanded quarrying activities.
29At this point, it is appropriate to interpose a short description of the visual screening vegetation plantings that are proposed to be established as part of the initial construction processes at the beginning of proposed activities associated with an expanded quarry approval. A construction program, at the commencement of activities anticipated in the application that is the subject of these proceedings, would run for a period of approximately 105 days. That would involve the construction of the various preliminary bunds associated with the southern extraction area; and the construction of a low bund along a generally east-west running fence line that separates a property owned by Mr and Mrs White from the Champion property. The White residence is located slightly to the south of east of the central extraction area. The construction activities also involve reconstruction of the Woolley bund, the bund described earlier as being the subject of the Reavill Farm proceedings.
30It is also proposed to construct two bunds, to run in an east-west direction, on the slope to the north of the present access road. This slope, forming the present surface of the proposed northern extraction area, is to have one of these east-west running bunds at approximately the mid point of the slope and the second located toward the foot of the slope. These two bunds would also follow the curve of the hill, coming gently, at their eastern ends, round the slope of the hill to the vicinity of the present access road.
31The bund along the fence line between the Champion property and the White property (together with the two bunds across the face of the proposed northern extraction area) are to be planted, at the commencement of the quarry expansion, with trees that are expected to reach a height of approximately 20 m or so during the life of the quarry. For the trees on the two bunds on the proposed northern extraction area, the bund itself is intended to provided acoustic shielding and the plantings, that are expected to have reached their mature height prior to quarrying activities commencing in the northern extraction area, are necessary for the purposes of providing visual shielding to the Wadsworth residence, a residence to the north of the proposed northern extraction area on top of the escarpment to the valley and located adjacent to Wyrallah Road.
32There is also proposed to be tree planting on the western side of the Woolley bund and additional plantings along the northern boundary of the site. As there is a local resident koala population, koala food trees are to be incorporated in these plantings as appropriate.
33Finally, it is also appropriate to note that the two remnant rainforest areas earlier described briefly are to be protected and subject to restrictive covenant . In addition, rainforest vegetation reestablishment works are to be undertaken in locations agreed to by the ecologists as later discussed.
34We now return to our description of the proposed northern extraction area. Quarrying here is intended to commence at the top of the slope in the vicinity of the present access road, behind a temporary shielding bund. As quarrying advances from this first work cell, both into the body of the hill and down the slope, the proposed acoustic and visual shielding provided by the upper of the two vegetated bunds that would have been constructed and planted some fifteen years earlier, will come into effect. Eventually when quarrying reaches this first bund on the northern slope, its trees will be removed and the bund itself quarried. By this time, however, the acoustic and visual protection proposed to be afforded by the second, somewhat down slope, bund in the northern extraction area will be able to be utilised.
35At the completion of the life of all three extraction areas, the quarry will close and the un-rehabilitated portions of the central and northern extraction areas will be stabilised and vegetated. As we understood it, all of the trees that had been planted will remain at the conclusion of the life of the quarry other than those that had been planted along the upper of the two bunds in the northern extraction area.
36It is intended, at the end of the life of the quarry, that what will be able to be observed compared to that which is presently on the site, will be not significantly different in its vegetated appearance, save for the additional trees. There will be obvious topographic differences, but these would only be discernable to a person who was aware that quarrying activities had been undertaken. To a person coming to the site for the first time and not having knowledge of quarrying activities having taken place, it is intended that all that would be observed would be a modestly heavily treed but otherwise rural landscape.
[8]
The parallel Part 3A application to the Minister
37In addition to the application that had been made to the council that forms the foundation for these proceedings, the applicant has also made a separate application to the Minister for Planning under Pt 3A of the the Planning Act. This application is generally coincidental with the application in these proceedings, but is not entirely the same. Although we have not seen the detail of the application to the Minister, we understand (from discussions during the course of the site inspections) that one significant difference is that the entirety of the southern ridgeline, forming the southern extraction area, is proposed to be removed and that no caldera-like remnant ridge would remain. We were informed by Mr Robertson SC for the applicant (we have referred to Mr Robertson of counsel in this fashion throughout this decision to distinguish him from the applicant's quarry management expert of the same name - we have omitted repeating Ms Duggan's SC post-nominal but mean no disrespect by doing so), during final submissions, that the northern extraction area is not included in the Pt 3A application. However, at the time of writing, we are not aware of any evidence to support this submission. In any event, we do not consider this material to our determination of matters in issue in these proceedings.
38At the time of the completion of the hearings and the reserving of our decision, no determination had been made by the Minister for Planning on the application that had been made pursuant to Pt 3A. As is noted, later, in the section dealing with Aboriginal cultural heritage matters, Mr Champion gave an undertaking on behalf of the applicant to provide documents to the Department of Planning acknowledging that further work on Aboriginal cultural heritage issues was proposed by the applicant.
39It is also relevant to note that, at least for these proceedings, there has been a deal of interchangeability of documentation. Experts reports that have been prepared, on their face, for the application to the Minister pursuant to Pt 3A have been incorporated in the supporting material provided for our consideration in these proceedings. We make no complaint about that - to the contrary, to have insisted on separate reports to the extent that there might be modest differences between the proposals, would have required additional (and in our view unnecessary) expense for the applicant. We do not understand that there has been any material deficiency in the information necessary for our consideration as a consequence of the use of documents prepared in support of the Pt 3A application.
[9]
Introduction
40The original proposed structure of the hearings, to be commenced in October 2010 with an extensive site view and on-site evidence at the quarry and a range of locations in its general vicinity coupled with a second, finalising phase in late November and early December, was not possible because of the emerging requirement to undertake further groundwater testing to see if the application, which had been significantly modified over the lengthy period of time since it had been lodged with the council in May 2008 , required yet more modification before the issues raised in these proceedings would be heard to finality and determined.
41However, to endeavour to minimise the already extensive costs incurred by the parties in these proceedings, two issues that were put in contention by the council (and supported by a significant volume of material raised in the community objections to the proposed expansion of the quarry) were identified, during the extensive case management process that has been necessary to ensure that these proceedings, as able to be heard and determined (in a fashion that minimised delay even if delay was not able to be avoided in its entirety), prior to the matters that required finality of project design for their consideration.
42The two issues were identified as issues separate from the proposed geographic limits of the quarrying area sought to be approved and thus could be the subject of hearings during at least part of the initial week at the end of October 2010 that had been reserved for this matter. Those issues concerned:
ecological matters relating to flora and fauna within the site; and
road safety, intersection upgrading and design and financial costs for initial roadworks and the level of contributions by the quarry for ongoing road maintenance of the local road network.
43As a consequence, the first phase of the hearing comprised a one day view of the site and an inspection of portion of the local road network followed by two days of evidence at Ballina courthouse on the two issues noted above.
44As a consequence of the way that first phase unfolded, a further timetable for hearing the matter was set. This timetable contained three elements. These were:
Identification of a date immediately prior to Christmas for the consideration by us of any further application to amend the proposal;
two days toward the end of January 2011 for the purposes of completion of the evidence and submissions relating to intersection reconstruction and financing and relating to contributions to ongoing road maintenance. These days were to be held in Sydney; and
a further eight days, in early February 2011, with additional site inspections of the quarry and in the locality. The site inspections and the subsequent hearing days, in Lismore courthouse, were set to cover the remaining matters in contention together with any matters arising from any amendment for which leave it might have been given in December 2010.
It subsequently became necessary to set aside a further four days for hearings in Sydney to finalise the expert evidence in a variety of disciplines. After the evidence had closed, a further two and a half days were necessary for closing submissions from counsel with our decision being reserved, finally, on 19 April.
45Notes prepared by the council's solicitor of the evidence given informally during the course of the various site and other inspections were subsequently tendered and became part of the documentary evidence.
[10]
The first phase of the hearings
46On the morning of the first day of the first phase of the hearings, we attended the site and, initially, heard evidence on the site (near the entrance to the site from Wyrallah Road) from residents who were concerned about local road safety issues arising from the increased heavy vehicle traffic that will necessarily arise should the proposed quarry expansion proceed. We then travelled from this location to the rear entrance to the quarry site, at its eastern edge - an entrance that is from the western end (and terminating point) of Hazelmount Lane.
47During the course of our transit from the quarry to Hazelmount Lane, we observed:
a koala climbing a tree at in the immediate vicinity of the intersection of Mathieson Lane and Hazelmount Lane;
a second koala in a small three that had been planted by the company in the vegetation on top of the bund that was the subject of the Reavill Farm proceedings; and
a third koala in a tree located on one of the residential properties at the head of Hazelmount Lane.
48At this location, we also heard evidence from a number of objectors, including some living in the immediate vicinity of the end of Hazelmount Lane, about their concerns of the impact of the proposed quarry on local fauna, particularly on the local koala population. In addition, Mr Griffiths, one of the residents in this immediate vicinity, raised concerns on behalf of his family about dust and safety issues of quarry traffic utilising Hazelmount Lane.
49It is convenient, for the purposes of this decision, to deal with that matter immediately. As part of the council's without prejudice conditions of consent (conditions provided, as the council is required to do, for the purposes of consideration during the proceedings), the council proposed a condition that no quarry traffic should be permitted to use Hazelmount Lane for the purposes of operational access to the quarry. The company, through its legal representatives, indicated that it accepted this proposed condition. We are satisfied that the imposition of a condition prohibiting the use of Hazelmount Lane for the purposes of quarrying activities is an appropriate and sufficient response to those matters that relate to the quarry raised by Mr Griffiths concerning traffic in Hazelmount Lane.
50To the extent that his concerns also related to agricultural activities undertaken on the non-quarry parts of the site (or other land in the vicinity owned by those who are also the controlling minds of the quarry), these are not matters that are capable of being considered by us in these proceedings.
51Mr Champion (who also resides in Hazelmount Lane), gave evidence at this location concerning the roles performed by him (and persons associated with him) in the re-establishment of koala food trees in the vicinity. He also gave evidence concerning his attitude, generally, to the preservation of vegetation on the extensive land holdings owned by his commercial interests in the immediate vicinity. Limited evidence was also given at this location by a supporter of the proposal, Mr Kay, who was a former business associate of Mr Champion; had no current business interests with Mr Champion; but did not rule out further joint business interests with him.
52After leaving the end of Hazelmount Lane, we proceeded to the site, on Hazelmount Lane, of a rehabilitated former small quarry that now accommodated a dwelling occupied by Mr Champion's son-in-law, Mr Nott. Mr Nott gave evidence in support of the quarry on the two issues being dealt with in this phase of the proceedings. Matters relating to quarry rehabilitation and the like, said to be exemplified by this location, were the subject of a further inspection during a later phase of the hearings and are described at the appropriate point later in this decision dealing with those rehabilitation issues.
53Having concluded the informally given evidence described above, we returned to the quarry where we were shown:
the boundaries of the proposed new northern extraction zone;
the location of a proposed new large dam, to the north of this proposed extraction zone;
the existing quarry pit, including an explanation by the operations manager of the present quarry about how the present quarrying operations were undertaken;
an outline of the proposed first stage of the proposed quarry expansion into the north-western element in of the proposed new southern extraction zone and the method of operation of that quarrying activity involving the haulage of material from that proposed pit by internally operating quarry vehicles to the floor of the existing pit for loading on to trucks for dispatch to the relevant customer. This was the subject of more detailed discussion, during a subsequent phase of the proceedings, in dealing with the quarry management plan and operational issues for the quarry. These are discussed later in this judgement;
an inspection of the area on top of the rocky outcrops surrounded hill included within the southern elements of the proposed southern extraction zone and proposed to be removed as part of long-term quarrying operations. This element of the site inspection included informal evidence being given at this location by Dr Robertson, the expert ecologist giving evidence on behalf of the council, and Mr Elks, the expert giving evidence on behalf of the company concerning flora issues. The nature of this evidence and the issues to which it was addressed are discussed later in dealing with the ecological issues raised by the council;
an inspection, on a closer basis, of the extent of the area proposed to be the first extraction cells in the proposed southern extraction zone of the expanded quarry; and
walking into an area designated as Area 1, one of the areas of remnant high-quality rainforest vegetation proposed to be conserved and protected (by an instrument pursuant to s 88K of the Conveyancing Act 1919) as an outcome of an approval for an extended quarry.
54After completing our inspections within the site, we then proceeded to travel along Wyrallah Road toward the hamlet of Wyrallah. During the course of the transit along Wyrallah Road to the first of the two intersections with respect to which there was controversy concerning both the nature and costs of the proposed reconstruction (as discussed later), we stopped at a number of informal bus stops used by local school buses for the setting down or picking up of school pupils.
55Although, at the commencement of this phase of the proceedings, there was a dispute between the council and the company about the extent to which additional warning signposting might be required for any or all of these bus stops, as a consequence of the increase of heavy vehicle traffic that would be generated by the proposed quarry extension, the company subsequently agreed to accept a condition that would require it to meet the costs of such additional signposting - as a consequence removing this as an issue requiring our determination.
56We then proceeded to park in the parking area of the children's playground at the intersection of Wyrallah Road and Wyrallah Ferry Road. This intersection and proposed future turns by quarry-related heavy vehicles from Wyrallah Road into or out of Wyrallah Ferry Road gave rise to a consideration of the necessity to upgrade this intersection.
57During the course of the inspection of this intersection, informal evidence was heard from Mr Holyoake, roads and traffic expert on behalf of the council, and Mr Pilgrim, roads and traffic expert on behalf of the company. This intersection (and, particularly, issues of safety of children using the adjacent park) formed part of the objector evidence, described earlier, given at the entrance to the quarry site at the commencement of the site inspection.
58During the course of the inspection of this intersection, we observed a conventional semitrailer, being what the experts describe it as a 19 m articulated vehicle, turning south from Wyrallah Ferry Road into Wyrallah Road. This vehicle, in order to be able to undertake this manoeuvre, was obliged to cut across the centre lines in both Wyrallah Ferry Road and Wyrallah Road and to cut the corner in an unlawful fashion. As discussed, in more detail, in the later section of this decision dealing with roads and traffic issues, it is not presently possible for such a manoeuvre, by a truck of this nature, to be undertaken lawfully.
59We then proceeded along Wyrallah Ferry Road a distance of approximately a kilometre to the intersection of Wyrallah Ferry Road and Coraki Road. This intersection also requires to be upgraded to accommodate additional heavy vehicle traffic generated by the quarry. It is also incapable of lawful transits by 19 m articulated vehicles in a similar fashion to that described above for the intersection first inspected; and was the subject of a dispute between the council and the company about the proportion of the costs of upgrading the intersection to be met by the applicant.
60At the conclusion of these intersection inspections, the first phase site inspection concluded.
[11]
The second phase of the hearings
61The second phase of the hearings took place in Sydney and concerned road and related issues. The issues fell into two categories - these relating to:
the necessity for and appropriateness of an apportionment of the costs involved in upgrading the intersections of Wyrallah Ferry Road and Wyrallah Road and of Wyrallah Ferry Road and Coraki Road; and
the question of what was the appropriate formula to be applied for annual road maintenance contributions to be paid by the quarry to compensate for additional maintenance costs for use of the two haul road options over council maintained roads.
62Given that we have concluded that the proposal should be refused on a number of individual grounds and, if we are wrong about the individual grounds, cumulatively in relation of those grounds, in our opinion, it is not necessary for us to consider further these two road related issues.
63We have reached that conclusion because there is no submission that issues of this nature could give rise to or contribute to refusal of the proposal. These issues simply went to what should be the financial contribution, whether capital or maintenance based, of the quarry - it being the agreed position of the parties that some contribution was warranted in each of these categories and with the disagreement being confined quantum only.
[12]
The third phase of the hearings
64At the commencement of the third phase of the hearing, we undertook further field inspections. These were generally confined to matters relating to Aboriginal cultural issues and to ground water issues. These inspections were not only on the quarry site but was also of the Tucki Bora Ring and a range of other features including sandstone overhangs and a scarred tree. The Tucki Bora Ring is located to the north of the site along Wyrallah Road.
65At their commencement, we heard lay evidence at the quarry entrance from a supporter of the proposal.
66During the course of these inspections we heard informal evidence from Mr Murray John Roberts, a knowledge holder from the Wijibul Aboriginal people and the native title claimant on behalf of his people. The native title claim encompasses the quarry site as a small element of a much wider claim.
67His evidence was given at both the Tucki Bora Ring and on the grassy knoll at the eastern end of the proposed southern quarry expansion area. In addition to the evidence from Mr Roberts on matters relating to the broad Aboriginal cultural significance of the general landscape in the vicinity of the Tucki Bora Ring because of a range of sites connecting with the ceremonial use of the Bora Ring, he also described a ritual initiation path from the Tucki Bora Ring along the ridgeline that now comprises Wyrallah Road. This path, in his evidence, diverged from Wyrallah Road along the ridgeline leading to and including the proposed southern quarry expansion area and, from that point down on to the flat land below, now drained but that had, previously, been part of the Tuckean Swamp; and a transit across the swamp (by bark canoe) to a location which Mr Roberts called the "teaching hill" at which, in his description, further ceremonial activities forming part of the first stage of the young men's initiation ceremony which had commenced at the Tucki Bora Ring were carried out.
68Following this evidence, we returned to the quarry site and heard further evidence, given informally, by Mr Carr and Professor Osborne, the groundwater experts for the council and the applicant respectively, concerning matters relating to the stability of the quarry face of the central extraction area (as it would have been at the end of the life of the expansion in that area had the quarry expansion been approved) and the rehabilitation processes that would have been applied, progressively, over the life of the extraction of that central extraction area expansion.
69We also undertook an inspection of the location of the proposed water reuse dam - where Mr Carr explained to us his concerns about the nature of the proposed construction of that dam, particularly the depth to which it was proposed to be cut below the existing ground level and the risk of water table contamination that this presented. Professor Osborne responded to Mr Carr's concerns on this issue.
70The following day, we resumed in Lismore Courthouse with evidence from Mr Roberts and from Ms Louise Cook, a member of the Ngangabal people, the Aboriginal people whose traditional country is located to the east of that of the Wijibul Aboriginal people. Ms Cook disputed Mr Roberts' evidence on a range of matters. Matters of dispute about the boundaries of the two traditional tribal areas are discussed later.
71The following day, Mr Roberts gave further evidence in response to that of Ms Cook. The nature of the totality of the evidence on Aboriginal cultural issues, not only from this phase of the hearings but also from the fourth phase of the hearings noted later is discussed in the later section of this decision dealing with Aboriginal cultural issues.
72At the conclusion of Mr Roberts' evidence, we heard concurrent evidence from Mr Carr and Professor Osborne who were joined by two further experts retained by the applicant, Mr Rasmussen, a hydrogeologist, and Mr Bishop, who had designed the water reuse dam and the sedimentation ponds upstream of it.
73The result of that concurrent evidence was that, subject to further consideration of the capacity and layout design of the sedimentation ponds upstream of the water reuse dam, Mr Carr indicated that his concerns about the proposed method and depth of excavated construction of water reuse dam would be resolved, not by a redesign of the dam, but by ensuring that appropriate conditions applied to the upstream bunds and to the operation of the quarry. The quarry management conditions he required were in areas such as equipment refuelling locations; chemical or fuel storage and the like. He considered these were necessary to ensure that there was no prospect of any of the substances about which he was concerned, or by the discharge of water carrying sulphides from quarrying operations entering the water reuse dam and passing into the groundwater through the base of the dam.
74The experts were asked to conduct a further joint conference and draft appropriate conditions that they agreed would resolve that issue. The outcomes of that process are detailed in a specific section later in this decision.
[13]
The fourth phase of the hearings
75The fourth phase of the hearing commenced with one and a half days of further field inspections. The first day was not only of the quarry site but also of neighbouring properties in the vicinity of the quarry where the owners of these properties objected to the proposal.
76Those properties were the Wadsworth, Woolley, Griffiths and White properties. One of the owners of each of these properties gave evidence during the course of the site inspection. Both Mr Woolley and Mr White took us to locations on their respective properties where they expressed concerns about the quality of what they described as "sediment carrying water that was currently discharged from the existing quarry during high rainfall periods".
77We had earlier inspected, during our drive up Hazelmount Lane, a culvert under the lane where Mr White had commenced his explanation of his water pollution concerns. A number of photographs were provided to us by Mr White and Mr Woolley (with Mr White's photographs being taken at the culvert under the lane as well as on his own property). Mr White provided rainfall data of his observations over approximately a seven-year period and Mr Woolley provided the results of a number of water sample tests that he had had analysed by Southern Cross University's laboratories. Mr Woolley's sampling methodology was described and his sampling locations inspected during our visit to his property. Matters relating to visual and acoustic impacts on these properties are discussed in more detail later.
78We also were shown a former quarry site that had been operated by Mr Champion and rehabilitated by him. This former quarry, although significantly smaller than any of the three extraction area elements now proposed, was offered as an example of a well rehabilitated quarry face at a slope of 1.8:1.0.
79On our return path from this location to the site, we observed, across a fence from a driveway on Mr Champion's property, the location of a water extraction bore on property fronting the lane. We then returned to the quarry site and heard further informal evidence from the quarry management experts, Mr Thompson, Mr Weir and Mr Robertson (on behalf of the applicant) and Mr Reed (on behalf of the Council).
80During the subsequent inspections of the Wadsworth and the White properties, Mr Wyatt, the visual impact expert for the applicant, produced a number of photomontages that show the extent of the screening vegetation proposed to be planted to ameliorate unsatisfactory visual impacts on these adjacent residences by the proposed northern and southern extraction areas. These and other photomontages are discussed in the context of the individual impact issues later considered.
81In addition, in association with the inspection of the location of the proposed reconstructed Woolley bund, we also undertook an inspection of the unapproved earthen mounds to the west and north-west of the Woolley property (being those that had been erected by the applicant some years earlier). These mounds, along with the Woolley bund, are to be treated as if they do not exist for most but not all purposes of these proceedings.
82We walked to the far side of these mounds, away from the Woolley residence and onto the applicant's property (to a point agreed by Mr Wyatt and Dr Lamb, the council's visual impact expert), to enable us to have an appreciation of the view that would be available from the Woolley residence if those mounds did not exist, their non-existence being the metaphysical position we are obliged to assume for the purposes of visual impact assessment in these proceedings.
83The quarry inspection with the quarry management experts encompassed not only an explanation of the sequencing of the various stages of the proposed excavation but also identified those matters that were said to be construction activities rather than quarrying activities . The distinction between construction activities and quarrying activities is of some importance, as later discussed. The construction noise levels are agreed to exceed the noise criteria that would be applicable if the Industrial Noise Policy regulated construction noise activities (although, for reasons later set out, they do not). The criteria under that policy do, however, apply to operational quarrying activities.
84The various construction activities were identified along with the elements of them that would potentially arise for the Woolley, Wadsworth and White residences and another residence of a non-associated property fronting Wyrallah Road at the western end of the southern extraction area. The acoustic experts, Mr Tumney for the council, and Mr Bridges for the applicant, were instructed to obtain information from the relevant quarry management experts as to the construction periods for each of these identified construction elements and the nature of the equipment to be used in that construction. In light of that information, they were directed to produce an agreed table setting out the acoustic impacts (if any) of the various identified construction elements, as relevant, for any impacted receiver locations identified by them.
85On the second morning of this phase of the hearings, we undertook a view of the southern side of the proposed southern extraction area. This view, (the reverse aspect of one of three longer views possible from residences toward the proposed expanded quarry), was from a location on the southern ridgeline. The only view of the quarry from those residences will be of a low vegetated bund proposed to be constructed along the top of the escarpment on the southern side of the proposed southern extraction area. During the course of this element of our inspection, Mr Wyatt and Dr Lamb agreed that there would be no adverse visual impact on these residences.
86Following this brief inspection, we moved on to inspect two quarries operated by Newman's Quarries. The first of these was a quarry that did not appear currently to be active. It was of modestly small dimensions, in general terms being not inconsistent with the present quarrying operations being undertaken on the Champions' site.
87Although there was some discussion, during the course of the visit to this quarry, of the quality of the sandstone that was available to be extracted at this location compared to the structure and quality of the sandstone, particularly as to hardness, that might be extracted from the Champions' quarry, we found our visit to this quarry to be of little assistance. Further, because of the comparatively isolated location of this quarry, apparently a kilometre or so from the nearest residence and out an unsealed track through bushland, we do not consider that there is any relevant comparison between the quarrying activities at this site and those that are proposed on the Champions' site. To the extent that this quarry might be regarded as a supplier of material of the same or a similar nature to that which might become available from the proposed expanded Champions' quarry, this is a matter discussed elsewhere later in this decision.
88The second of the two Newman quarries that were inspected was a very much more substantial one operating on several benches and across a quarry floor some 70 m or so in width. A variety of relevant quarrying equipment, including mobile screening and crushing equipment, was inspected at this quarry. In the course of this site inspection, there was also informal expert evidence given by the quarry management experts and by a representative of this quarry's management on the various methods of operation of this quarry; the nature of material produced by it and the markets into which such material was supplied.
89During the course of our visit to the second of the two Newman quarries, the representative of that quarrying company who showed us around the site indicated that there were significant further sandstone reserves available to be extracted by an extension of quarrying activities at this location.
90After carrying out these various site inspections, this phase of the proceedings then recommenced with evidence in Lismore Courthouse.
91During the course of that evidence, it became obvious that amendments needed to be made to the quarry management plan with respect to the initial phases for the extraction of material from the proposed southern extraction area. Although the precise nature of the design of the amendments that were to be the necessary result from the further work of the applicant's quarry management experts and, as it turned out, to come from the further joint conferencing of all quarry management experts, there was sufficient understanding of what was required for us to grant leave to amend the development application then being considered (this development application being, itself, the amended development application that had been supported by the revised environmental impact statement). However, the precise detail of the amendments was to be finalised prior to the final phase, in Sydney, of the hearing of evidence.
92Although leave was granted to make those amendments (as there was sufficient clarity as to what changes might be expected to arise), the question of whether or not the amendments were not "minor" and thus engaged the provisions of s 97B of the Planning Act was deferred to be determined as part of our final decision on the overall appeal. For reasons that are set out in detail later, we have determined that the amendments as finally formulated were, as a matter of fact, minor amendments and that no costs order pursuant to s 97B(2) is required to be made.
93We also undertook a separate, after court hours, inspection of longer views to the site from the ridgeline to the north-east, several kilometres from the site. The outcome of this inspection is discussed later in the visual impact section of this decision.
[14]
The final phase of the hearings
94The final phase of the hearings took place in Sydney and involved further quarry management evidence with respect to the final design of the proposed amendments to what had become known as the push up and over bund for the initial phases of the southern extraction area; geotechnical evidence with respect to this proposed activity; and acoustic expert evidence with respect to a wide range of aspects of the proposal as it had finally and in general terms emerged from the quarry management discussions.
95As discussed in more detail, later, the acoustic experts had been asked to confer upon and consider the acoustic impacts of the proposed schedule of construction activities that were necessary precursors to operational activities of an expanded quarry.
96We also heard additional visual impact evidence, particularly with respect to the longer views from the Wadsworth residence towards the south and east. This involved the production by Mr Wyatt of additional photomontages of the outlook toward the south and east from the Wadsworth residence at a point of time in the future proposed operational phases of the expanded quarry known as Progression 8.
97During the final phase of the hearings, a final range of procedural matters required to be dealt with. These included the question of the terms for and appropriateness of admissibility of various portions of an affidavit sworn by Mr Champion. Mr Champion's affidavit was read, with a number of omissions resulting from general rulings and, on earlier Aboriginal cultural heritage evidence, a variety of specific determinations of admissibility. Mr Champion was not required for cross-examination.
[15]
Closing submissions
98To suit the convenience of the diaries of senior counsel, the closing submissions were conducted on a fragmented basis. The process involved Mr Robertson SC making his closing submissions; Ms Duggan making her closing submissions a week later (but in the absence of Mr Robertson SC) and Mr Robertson SC making his final submissions in reply, with the benefit of a transcript of Ms Duggan's submissions a little more than a week later. At that time, with a sense of relief all round, we expect, we reserved our decision!
[16]
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
99State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (the Mining SEPP) provides the relevant assessment framework for this proposal.
100The aims of the Mining SEPP are set out in cl 2. It is clear, from the terms of the second of the aims, that the policy is intended to be facultative and beneficial for the establishment of activities that fall within its scope, such as this proposed quarry expansion.
101The third of the aims is in the following terms:
to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources.
102It is from this third aim that the assessment framework established by the clauses that are set out in the following portions of this judgement become the basis for our assessment of the acceptability of this proposal.
[17]
Clause 5 of the Mining SEPP
103The Mining SEPP contains a specific provision, cl 5, that deals with the relationship of this SEPP with other environmental planning instruments. This provides, relevantly, that if this Policy is inconsistent with any other environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.
104The consequences of this provision exclude from our consideration any otherwise relevant provisions of the Lismore Local Environmental Plan 2000 (the LEP) and the Lismore Development Control Plan 2007 (the DCP) that are inconsistent with the Mining SEPP. As a result, except to the very limited extent described later in more detail in determining what are the likely preferred uses of land in the vicinity of this proposed expanded quarry (a matter requiring consideration as a consequence of cl 12 of the Mining SEPP), these two documents have no further work to do in this context.
105Specifically, as set out below, although the DCP prescribes buffer zone distances for quarrying activities, these are not relevant in our consideration for the reasons later set out.
[18]
Clause 8 of the Mining SEPP
106The Mining SEPP contains a specific provision, cl 8, that deals with the question of whether or not activities such as this quarrying proposal can be required to satisfy any zone objective that is set by a local environmental plan as relevant to the proposed development. The effect of cl 8 of the Mining SEPP is to exclude any assessment of the proposal against the objectives of any relevant local environmental plan.
107The terms of the exclusionary provision contained in cl 8 of the Mining SEPP are as follows:
8 Determination of permissibility under local environmental plans
(1) If a local environmental plan provides that development for the purposes of mining, petroleum production or extractive industry may be carried out on land with development consent if provisions of the plan are satisfied:
(a) development for that purpose may be carried out on that land with development consent without those provisions having to be satisfied, and
(b) those provisions have no effect in determining whether or not development for that purpose may be carried out on that land or on the determination of a development application for consent to carry out development for that purpose on that land.
(2) Without limiting subclause (1), if a local environmental plan provides that development for the purposes of mining, petroleum production or extractive industry may be carried out on land with development consent if the consent authority is satisfied as to certain matters specified in the plan, development for that purpose may be carried out on that land with development consent without the consent authority having to be satisfied as to those specified matters.
108The council concedes that the provision has the effect of removing the LEP's mandatory requirement that this proposal satisfies the zone objectives. However, the council contends that the zone objectives remained a relevant matter for consideration by virtue of the operation of s 79C of the Planning Act as the council contends that regard can be had to the zone objectives (as matters arising in the public interest) even if they are not required to be satisfied by the terms of cl 9 of that instrument.
109We do not consider that this is the case as, in our opinion, the terms of the Mining SEPP are intended to exclude consideration of the zone objectives (and any other inhibitory provisions) of the LEP in their entirety.
110To seek to import the zone objectives as a matter of discretionary consideration with some lesser but nonetheless influential bearing in consideration of a mining proposal would be to subvert the clear intention of the Mining SEPP to render satisfaction of the zone objectives a matter of irrelevance when dealing with a development proposal that it is within the scope of the Mining SEPP.
111We reject this approach as we consider that any broader public interest importation of consideration of the zone objectives in the LEP (using s 79C of the Planning Act as the vehicle for so doing) would subvert what we consider to be the obvious intention of the Mining SEPP to constitute a codified framework for the assessment of activities that are brought within the scope of the SEPP.
[19]
The role of the Lismore Local Environment Plan 2000
112The site is zoned partially General Rural 1(a) and partially Riverland 1(r) pursuant to the LEP. Quarrying is a permissible activity in both zones. There is, for reasons later discussed as arising out of cl 12(a)(ii) and (iii) of the Mining SEPP, a necessity to consider - but only in a limited fashion as later explained in more detail - the range of permitted uses within these zones.
[20]
The Lismore Development Control Plan 2007
113The DCP contains, in Chapter 18, matters concerning extractive industries within the definition of which this proposal falls. Chapter 18, at 18.5, sets out the justifications for and minimum buffer zones to apply to various classes of quarrying activities depending on the annual extraction rate of the quarry. The relevant definition and buffer zone provisions are in the following terms :
18.2 Definitions
In this Chapter the following definitions apply:
"Buffer Area" means the area around an extractive industry which may be affected by quarrying activities e.g. noise, dust visual intrusion etc and which is created for the purposes of mitigating these impacts on adjoining land uses of a residential nature.
18.5 Buffer areas around Extractive Industry sites
Extractive industries involve the use of an extensive range of plant and equipment which creates noise, dust and even odour, as material is won from the quarry face and then crushed and screened for loading and transport. In some cases blasting is necessary to extract the material.
Quarrying activities are incompatible with many land uses, particularly those of a residential nature.
Even some farming activities may also experience problems, when located close to a quarry. It is therefore desirable to provide a buffer area around quarries to minimise land use conflicts.
In fast growing and intensively settled areas like Lismore, extractive industries and resources may be sterilised as a result of the encroachment of residential land uses. It is therefore desirable to identify significant quarries and resources and provide an appropriate buffer to prevent encroachment of residential and other land uses, which may sterilise a resource or lead to community pressures to restrain or cease production.
The extent of buffer required depends on the size of the quarry, whether blasting is utilised, nature of production methods, extent of crushing and screening operations, topography and site conditions and the intensity of surrounding development and land uses. A two level buffer standard has therefore been implemented, with a primary and a secondary buffer area established.
Urban/village-residential and rural-residential development is excluded from both the primary and secondary buffer area. Farmhouses on agricultural holdings may be permitted in the secondary buffer area (but generally not in the primary buffer area), if no alternative suitable location is available. All other non-residential land uses are permitted in the secondary buffer area. As a general rule only bushland, rural industries, or agricultural and forestry uses and rural outbuildings will be permitted in the primary buffer area. The following table summarises the minimum radii of buffer areas required by Council around extractive industries and resources:
Quarry Size Primary Buffer Zone Secondary Buffer Zone
Large Quarries 500 metres 800 metres
(10,000m 3 pa)
Medium Quarries 400 metres 600 metres
(5,000m 3 - 10,000m 3 pa)
Minor Quarries 300 metres 400 metres
(< 5,000m 3 pa)
Buffer areas may be reduced where topographic, climatic, site conditions or production techniques are favourable to reducing distance separation. For example a quarry located within a confined and enclosed basin, or a quarry which operates only on an intermittent basis, may enable a reduction in the extent of the buffer. Very small quarries, essentially used only as borrow pits, and minor quarries with intermittent use may require a buffer of only one or two hundred metres. A section of buffer zone could be reduced where a hill or ridge separates the quarry from a potential development area, or where the quarry is downwind of the development area (ie less affected by noise and dust).
In some cases buffer zones may need to be increased where, for example, the topography is very flat or a development site is located upwind of a quarry.
Where blasting is utilised at a quarry, a primary buffer zone of at least 800m - 1,000m is desirable. This buffer could be reduced to 400m - 500m, or even less, depending on blasting technique and where blasting is infrequent and/or only small "staggered" blasts are used.
Whilst buffer zones are not required along haulage routes, Council will encourage a maximum building setback to haulage roads, to reduce noise and dust nuisance. Residential and rural residential development will generally not be approved along or near unsealed quarry haulage routes. Such development should even be discouraged along or near sealed haulage routes servicing major quarries (production in excess of 50,000m 3 with 50 truck movements daily) unless an adequate buffer can be provided to the haulage road. Individual dwellings fronting unsealed haulage roads should be setback at least 50 to 60 metres from the road and be provided with a planting buffer to minimise dust nuisance.
114We accept Mr Robertson SC's submission that the Mining SEPP's exclusion of consideration of matters raised by the LEP also excludes our consideration of any matters arising under any development control plan that has been prepared and adopted as subordinate to that local environmental plan.
115As a consequence, we are specifically of the view that we should have no regard to the buffer zone distances set by the DCP as being the appropriate buffer distances that should, presumptively, be considered for a development proposal such as this.
116However, if we are wrong in taking this position, it is clear that the range of matters in the preamble to and in the discussion following the table setting out the various buffer distances are designed to be responsive to the particular circumstances and site of each individual quarrying activity. We discuss, below, in the context of the meaning of the words "vicinity of the development" for the purposes of cl 12 of the Mining SEPP, the relevant and appropriate topographic context within which we assess this proposed quarry expansion pursuant to that SEPP. If we are wrong in our conclusion that it is inappropriate to have regard to any of the provisions of the DCP, we are satisfied that the basis upon which we have approached our overall assessment of the impacts of the proposed quarry expansion is entirely consistent with the underpinning principles of the buffer zones contained in the DCP.
117As a consequence, although we have not specifically dealt with the DCP's numerical buffer zones later in this decision, we are satisfied that, if the DCP were required to be taken into account, the approach that we have taken would not be inconsistent with that required by the Court of Appeal's decision in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 as to the role that a DCP should play in our decision-making process.
[21]
Clause 12 of the Mining SEPP
118As a consequence, the assessment framework that we are obliged to follow is that which is set out in cl 12 of the Mining SEPP (although, as part of our Mining SEPP consideration we must also deal with specific matters in cll 14 to 17 of the SEPP). Clause 12 is in the following terms:
12 Compatibility of proposed mine, petroleum production or extractive industry with other land uses
Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must:
(a) consider:
(i) the existing uses and approved uses of land in the vicinity of the development, and
(ii) whether or not the development is likely to have a significant impact on the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and
(iii) any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and
(b) evaluate and compare the respective public benefits of the development and the land uses referred to in paragraph (a) (i) and (ii), and
(c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).
119In essence, the assessment process that is established is one that requires us to undertake three separate and distinct tasks, in our opinion.
120The first involves us undertaking an assessment of the impacts of the proposal. They are the matters that have been set out, in (146) below, as warranting such an assessment. Having undertaken that assessment, if we were to find that there are no impacts of the proposal that either warrant its refusal on their own or which, when taken together, warrant refusal of the proposal, the proposal then warrants approval.
121Although it would then be unnecessary to consider the second step, that is matters of public interest in permitting the proposal to proceed, we are of the opinion that it would still be appropriate to consider the adequacy of such ameliorative steps as are proposed or, consistent with the "amber light approach" described below from (147), what additional ameliorative measures could be imposed by us that would reduce any undesirable impacts even though those impacts fell short, cumulatively, of warranting refusal.
122On the other hand, if, as is here the case for the reasons set out in our first stage analysis, there are impacts of the proposal that individually or collectively warrant refusal, the first stage assessment must necessarily be followed by the second stage assessment required by cl 12 (b).
123The second stage assessment, we are of the opinion, requires us to consider what are said to be the public benefits of the proposal and to assess whether or not there is sufficient public benefits to offset those impacts that would otherwise warrant refusal of the proposal.
124Finally, whether or not there are sufficient public benefits in permitting the proposal to proceed notwithstanding its impacts, we are nonetheless required to undertake an assessment of the ameliorative measures proposed in the application and any additional "amber light" assessment ameliorative measures that we might impose on the proposal.
125If the assessment of the public benefits of the proposal did not sufficiently offset the matters that warrant refusal or contribute to warranting refusal, as we have concluded is the case with this proposal, we must consider whether the ameliorative measures proposed together with any further ameliorative measures we might impose, can, when added to any public benefit outweigh, in a final analysis, the matters that warrant refusal.
126For the reasons which are set out in our third stage analysis, we have concluded that they do not and that, having undertaken that assessment process and, as part of it, having considered the matters to which we are obliged to have regard as a consequence of the provisions of cll 14 to 17 of the Mining SEPP, the proposal must be refused.
127The first step in any analysis of a proposal pursuant to cl 12 of the Mining SEPP, in our opinion, is to establish the existing uses of land in the vicinity of Champions' quarry. Because these uses are to be those in the vicinity of the development , it cannot include the development itself or any precursor element to it such as the existing quarrying operation.
128We must also consider what constitutes the vicinity for the purposes of this provision. Although there has not been any submission to us by either side to these proceedings as to what might constitute the vicinity of the purposes of this provision, the proceedings appear to us to have been undertaken on the tacit agreement that the vicinity is, in effect, a catchment comprising those properties that are either landholdings associated with the quarry proponent or those that have been discussed as potentially affected properties. This catchment, in general terms, comprises the valley within which the existing and proposed expanded quarry is located together with an area bounded, to the east, by the White and Griffiths properties; to the north by the Wadsworth property; along the north-west boundary by Wyrallah Road turning, generally, to the west along Tuckurimba Road; and then returning to encompass the associated landholdings that lie between the White property and the ridgeline encompassing the southern expansion area of the proposed expanded quarry.
129The existing and approved uses of this area of land, as we understand the evidence, are as follows:
Agriculture;
Residential uses associated with an agricultural activity (but not as a rural residential use); and
Public roads.
130Although they are in what might be regarded as a broader locality, we do not consider that the Tucki Nature Reserve or the Aboriginal site of the scarred canoe tree (the latter was visited during the course of the site inspections) should be included. These lands are both on the western side of Wyrallah Road and somewhat removed from the site. They are certainly not within any potential visual catchment of the proposed expanded quarry or of the existing quarrying operations. For those reasons we do not consider that we should include them.
131We also exclude any other use beyond the area of which we have described although, as we understand it, the Nature Reserve and the scarred tree location (because of restrictions to prevent impacts on this tree) are the only landholdings with uses that differ from the three we have earlier nominated in any slightly broader (but still immediate) locality context.
132For determining what constitutes approved for uses of the land in the vicinity, we note definition of approved in cl 3(2) of the Mining SEPP - a definition in the following terms:
approved , in relation to any development or any use of land, means development or a use:
(a) for which any required development consent under Part 4 of the Act, or approval under Part 3A of the Act, has been granted (being a consent or approval that is in force), or
( b) that does not require any such development consent or approval under the Act and regulations.
133We consider, with respect to those lands that are in private ownership, that the first two activities earlier set out are those that should be regarded as the existing and approved uses of land within the vicinity . In addition, as Wyrallah Road is functionally used for a distinctly separate use (whether so zoned or not), namely as a public road, such a use is also one of the existing and approved uses in the vicinity of the quarry site.
134Having set out those uses, it is then necessary to consider, having regard to land use trends, what are likely to be the likely preferred uses of the land in the vicinity of the site in the foreseeable future.
135We see no reason to conclude that the likely preferred uses , in the future, of land in the vicinity of the site will vary, in any materially relevant aspect, from those occurring at present.
136Having set out what we consider to be the existing, approved or likely preferred uses , cl 12 of the mining SEPP then requires us to consider any ways in which this proposed development may be incompatible with any of those uses. Although the existing, approved and likely preferred uses are narrower than the range of currently permissible uses capable of approval pursuant to the present LEP, we do not see any necessity in undertaking our assessment pursuant to this subclause on any basis wider than the limited range of existing, approved and likely preferred uses of land in the vicinity; nor are we pressed by either of the parties to do so.
137As a consequence, in order to fulfil the requirements of this subclause, it is appropriate to proceed to a conventional merit assessment of the impact of the proposed expanded quarry on relevant landholdings in the vicinity that are potentially impacted by the proposal and, encompassing in that assessment, any impacts that might be occasioned to Wyrallah Road and those travelling along it.
138As part of this assessment process, we have proceeded on the basis adopted by the parties that impacts on associated properties within what can be regarded as the broader Champions' landholding are to be excluded.
139As a consequence, our assessment of the impact of the proposal is confined to an assessment of any such impacts on:
[22]
Other clauses of the Mining SEPP
142The Mining SEPP also contains four other clauses that require us to consider matters raised by them as part of our merit assessment. These provisions are as follows:
Clause 14, ecological and environmental issues;
Clause 15, resource recovery;
Clause 16, transport; and
Clause 17, rehabilitation.
143Each of these matters is addressed later in this decision, after our consideration of the broader assessment process steps that are set out in (and required by) cl 12 of the Mining SEPP.
[23]
The issues
144As a consequence, we have undertaken an assessment of the relevant impacts that were said by the council to arise from the proposed expanded quarry and determine whether or not any would warrant refusal or contribute to warranting refusal of the project.
145Some of the contested matters, such as the ecological issues and those relating to potential groundwater impacts on the proposed water reuse dam, were resolved by conditions agreed by the relevant experts or sufficiently reduced during the course of the proceedings so as to be capable of resolution by us determining the conditions to be applied. Such matters are described only to explain why they no longer remained contentions from which any adverse finding could be derived or supported.
146The contested matters that that remained for assessment were:
visual impacts on immediately neighbouring properties;
visual impacts from long-distance;
acoustic impacts of normal quarrying operations;
acoustic impacts of construction activities that are necessary precursors to various elements were quarrying activities; and
Aboriginal cultural heritage impacts
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The amber light approach
147We have approached our consideration of the issues in these proceedings by adopting the "amber light approach" now taken in merit proceedings in the Court (see Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333 at para 27 et seq, for example).
148This approach has us first ask ourselves this initial question - " On the merits, is the application capable of being approved as applied for ?" If this question is answered in the affirmative, we then proceed to approve the proposal.
149If we were to conclude that it is not capable of being approved as applied for, we do not automatically refuse the proposal. In the alternative to refusal, we then proceed to address a second question - " Is the proposal capable of being given development consent within the scope of the present application but with amendments or changes that are defined by us with sufficient precision as to be incorporated in either plans or in conditions of consent ?"
150If this second question is answered in the affirmative, we should then proceed to specify the amendments or changes; require their incorporation in the proposal; and approve the proposal as so modified.
151However, if this second question is answered in the negative, we are obliged to proceed to reject the proposal and dismiss the appeal.
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Introduction
152There are five separate and distinct locations from which the possible visual impact of the proposal require consideration. The perspectives from which this consideration is required are as follows:
Longer-distance viewpoints to the north-east
The Wadsworth residence;
The Woolley residence;
The White residence;
The closest residence in Tuckurimba Road; and
Wyrallah Road in the vicinity of the Wadsworth residence.
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The longer view from the north-east
153During the third phase of the hearings, one afternoon after court, we undertook a further inspection that involved endeavouring to look toward the site from the vicinity of a number of residences on top of the major ridge to the east and north-east. At the third attempted location, a clear view was able to be obtained across the intervening valley floor and minor ridgelines, a distance of approximately 3.5 km, to the quarry site. We were accompanied on this inspection by the legal representatives of the parties and by Dr Lamb. Mr Wyatt was not available.
154At the location where we were able to obtain a clear view of the site, Dr Lamb agreed that, as a consequence of the proposed screening plantings including the visual impact ameliorative plantings incorporated in the proposal, the visual impact of all the quarry elements, on the long view, would be very small. He agreed that it did not warrant refusal of the proposal and could make only an infinitesimally small cumulative contribution to considering whether the proposal should be refused. This outcome was subsequently put on the record, in Mr Wyatt's presence, prior to the conclusion of the fourth phase of the proceedings. We consider that any such impact is so small that we should disregard it and we have done so.
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The Wadsworth residence
155The Wadsworth residence is located on a small rural property to the north of the entrance to the quarry. There is a common boundary between the two properties and the Wadsworth residence is located some 25 m or so to the east of Wyrallah Road at the top of the ridge line. The orientation of the outdoor living area at the rear of the house is toward the east and the south.
156Although portion of the view directly to the south is obstructed by a shed used by Mr and Mrs Wadsworth to house their tractor, the unobstructed element of the view directly to the south is toward the proposed northern extraction area of the quarry. The present outlook is towards a grassed slope leading to the present access road to the quarry with a small number of mature trees dotted within this generally foreground element of their outlook. Without visual impact plantings, it is the agreed expert position that, during the life of the northern extraction area's operations, this element intruding into the view from the Wadsworth outdoor living area would be unacceptable.
157The proposal envisages, at the commencement of the life of the project, the creation of two earthen bunds some 2 or 3 m high across the slope of the proposed northern extraction area. One of them would be at the foot of the slope and the other at approximately the mid-point up the proposed extraction area.
158In addition to these bunds being constructed at the commencement of the project, they would be planted at that time with trees of a species that might reasonably be expected to reach 20 m or more in height and to reach a sufficient height prior to the commencement of proposed extraction in the northern extraction area, this being proposed for approximately 15 years after the commencement of the project, that these trees would screen virtually the entirety of any extraction activities from being viewed from the Wadsworth residence.
159The proposed extraction in the northern extraction area would commence with a small, separately screened work cell, at the top of the slope in the vicinity of the present quarry access road and would proceed down the slope over the operational life of this section. The upslope areas would be rehabilitated, progressively, as quarrying went down the slope.
160Although it is intended that the upper of the two treed bunds would be removed during the life of the quarrying activities for this extraction area (as quarrying of this extraction area is proposed to go significantly further down slope than the location of this bund), it is the accepted position of Mr Wyatt and Dr Lamb that, by the time this mid-slope bund needed to be removed, the upper quarried slopes that would become visible would have been rehabilitated and revegetated prior to that bund's removal.
161Their agreed expert evidence was that the establishment of these two vegetated bunds and the proposed progressive rehabilitation program will mean that, whilst the view from the Wadsworth residence directly to the south into the northern extraction area will significantly alter from the present open grasslands with a small number of trees to a more intensely vegetated outlook, this is not unreasonable and the proposed initially established vegetation bunds and progressive revegetation and rehabilitation of the quarry face represents a visually acceptable process in the outlook from the Wadsworth residence.
162As also later discussed in the context of the outlook from the White residence, the Wadsworth residence also enjoys an expensive view over the lower ground between the White residence and the end of Hazelmount Lane to a broad and expansive landscape beyond in a generally south-east direction. This view was described by Mrs Wadsworth in the following terms as part of her on-site evidence:
We bought here at Tucki for the amenity and this property in particular for our view. The most important part of our amenity is our view. We enjoyed every single day. I strongly disagree with the EIS visual reports opinion that conclude 'low-level' and 'minimal' visual impact for my home and family. The EIS visual report attempts to diminish our actual visual exposure to the site and photomontages with tree colouring-in exaggerate computer generated mitigation results .
...............................................
We don't sit and look at only the quarry site. We look past it to the Tuckean wetland, Woodburn, Evans Head and Goanna Headland but our view will become dominated by a noisy, dusty sand mine and processing plant in the foreground.
163The description given by Mrs Wadsworth, during the course of her on-site evidence, reflects the view to the south-east from her property to the extent that we were able to observe it during our inspection of the Wadsworth property. Whilst, because of the slightly inclement weather, we were not able to enjoy the full extent of the panorama described by her, there is no doubt that the view enjoyed by Mr and Mrs Wadsworth over and beyond the intermediate ridgelines to the south-east, including the ridgeline proposed to be vegetated along the boundary between the White property and the Champion property and continuing along the internal fence line within the Champion property is both significant and extensive.
164Contrasting the present view from the Wadsworth property with the alteration that will result from the vegetation that is necessary to be planted in order to rectify the otherwise unacceptable visual impact on the White property shows, in our opinion, that the change is clearly significant. Reproduced below are copies of the images provided by Mr Wyatt of the view from the Wadsworth property as it is at present and the view that will be available from that property from after Progression 8 of the quarrying activities (20m high trees for visual protection of the White residence as elsewhere discussed). The images are rotated to permit greater size and thus better interpretation.
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165Mr Robertson SC used the word "vista", on our recollection, to describe the view to the south-east from the south-eastern corner of the Whites' house's veranda and open deck. We accept that the use of the word "vista" for that outlook is appropriate. It is, as a consequence of the additional elevation of the Wadsworth residence, even more applicable to the view in the same direction from that residence.
166Whilst the resulting view from and after progression 8 of the proposed quarry would be that of a pleasant wooded outlook with the addition of the northern extraction area vegetation and the White property protective vegetation to the south-east, significant elements of the long vista described by Mrs Wadsworth will be partially eliminated.
167The significance of the elimination of the vista from the Wadsworth property is, in our opinion, essentially the flipside of the significance of the vista available from the White property. Just as the availability of the views to the south-east from the White property comprises, as later discussed, an appropriate reason not to be concerned about the alteration of the outlook to the north and north-west from the White property, the interference with the longer view for Mr and Mrs Wadsworth is significant (but not so significant, in our opinion, as to be unacceptable).
168From the perspective of the Wadsworth residence, a similar conclusion does not follow with respect to the northern extraction area.
169Although the view enjoyed at the present time from the Wadsworth residence to the northern extraction area is of the grassy slope as earlier described, the replacement of this view with the more intense vegetation and, ultimately, rehabilitated quarry face beyond at the upper levels is not considered by us to be unacceptable given the retention of such of the view to the south-east to which the eye would inevitably drawn from the outdoor living areas of the Wadsworth residence.
170However, for the purposes of our assessment of the northern extraction area's impacts on the Wadsworth residence, this conclusion can only be supported provided quarrying activity in the northern extraction area were not to commence until after the expiry of the 15 year period necessary for the establishment of the two bands of vegetative screening necessary to ameliorate the visual impact on the Wadsworth residence of any quarrying in the northern extraction area.
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The Woolley residence
171When considering the visual impact of the proposal on the Woolley residence, it is necessary to treat the existing earthen mounds described earlier as if those mounds and the vegetation associated with them did not exist. That hypothetical non-existence requires us to assess the impact on the views from the Woolley residence on the basis of the impression of those views able to be obtained from our inspection on the north-western side of the mounds, but close to them, at the point agreed by Mr Wyatt and Dr Lamb to be an appropriate location from which to obtain an understanding of the outlook (metaphysically) available from the Woolley residence.
172We also accept the photographic evidence provided by Mr Wyatt in material prepared for the Reavill Farm proceedings that, prior to the hearings in those proceedings, vegetation along the western boundary of the Woolley's property coupled with vegetation and fencing within the Woolley's property obscured the view from this concrete slab area to what would be metaphysically available grassy countryside interspersed with individual trees and vegetation belts to the west and north-west. To the extent that, inherent in this submission, is the proposition that a proponent is entitled to rely on vegetative screening on a neighbouring property for amelioration of an unacceptable visual impact (where that property would otherwise be unacceptably visually impacted), this proposition is rejected.
173Mr Woolley gave oral evidence during our visit to his property. It was that his family now used the concrete slab at the north-western corner of the house as an outdoor family area particularly during winter. In his evidence, a written copy of which was provided to us, he said, relevantly:
And the amelioration done from my visual outlook that is submitted in this DA is completely unacceptable, the view that I had before the refused bunds were built and the proposed bund is to be built were substantial, clear and unobstructed.
174During the course of his oral evidence on his property, Mr Woolley was cross-examined by Mr Robertson SC concerning, amongst other things, the concrete slab area in the north-western corner of his house. Mr Woolley indicated that, although access to the area had been boarded up since 2002/2003, he and his family now had plans to expand into this area.
175Mr Woolley also conceded that he had pruned vegetation on his property along the boundary with the site and had removed a fence that had obscured the view from this concrete slab area. Mr Woolley indicated that he had taken this fence down because it was unsafe. He conceded that the fence and the vegetation had obscured the view toward the area where the present unapproved earthen mounds are located on the site. He also conceded that the house had a patio on its northern side that was used in the mornings but said that, in the afternoons, the concrete slab area was preferable.
176Whilst it may well be that the area in the north-western corner of the Woolley residence has been under utilised in the past, the present expressed intention to make greater use of that area in the future, although subject to cross-examination by Mr Robertson SC, was not shaken and we see no reason to disbelieve it .
177It was clear to us from the state of Mr Woolley's property that property management and facilities tidiness was not a strong point of the family. That having been said, that is no reason to set aside the fact that, on our inspection of the outlook that would be otherwise available from the Woolley residence (if the present earthen mounds were not in existence and if the proposed reconstructed Woolley bund was not permitted to occur) would be a pleasant generally rural outlook in a generally north-western direction.
178Whilst it is undoubtedly the position, as submitted by Mr Robertson SC, that the applicant would be entitled to undertake intensive, commercial forestry-type operations for timber production on the site, thus also obstructing the view from the Woolley residence in that generally north-westerly direction, we do not consider that such an obstruction, if it were to occur, would be of the same qualitative nature as the grassy mound that is proposed to be the resultant outlook in that direction if the reconstructed bund is approved.
179It is also of importance, in our assessment of this visual impact, that the bund, if reconstructed, is proposed to remain in place for at least the 20 years or so of the quarry's expanded life. The extent and duration of the interruption to the visual outlook from the Woolley residence are both critical in our assessment of the impact of this proposal on that residence.
180The visual impact on the Woolley property, having regard to the extent of the obstruction of the view from the outdoor area in the north-eastern corner of the residence and its proposed future use, when coupled with the duration for which the obstruction would be necessary for the life of the expanded quarry, is, on balance in our opinion, unacceptable and is sufficiently so as to warrant refusal of the reconstruction of this bund. In reaching this assessment, we have, as we have previously indicated, treated the present earthen mounds that obstruct the outlook from this area of the Woolley property as if they did not exist.
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The White residence
181Mr and Mrs White live in a Queenslander style house. The house is oriented so that the two sections of the veranda are oriented generally north-west and south-east. In the southern corner of the south-eastern section of the veranda, where an element on that side of the house is set back from the main facade with a concomitant setback to the veranda, the resulting angle has been in-filled with an open deck constructed by Mr and Mrs White. It was their evidence that the narrow north-western portion of the veranda was used by them, particularly in winter, for outdoor living purposes. The view from this area of the veranda toward the quarry will be to the eastern end of the southern extraction area.
182The visual impact of amelioration plantings proposed to protect the White residence from a direct view of the quarrying operations comprise, principally, trees to be planted to reach at least 20 m on a low earthen mound along the east and west running boundary fence between the White property and the Champions' property and along a continuation of that fence internally within the Champions' property. The vegetation will extend up to and slightly beyond the end of the present escarpment whose northern and eastern faces are proposed to be removed as part of the southern extraction area activities.
183It was Mr Wyatt's evidence that these plantings are necessary to ensure that there is no visual impact from the quarry on the White residence and that, if such a plantings were not undertaken to the extent proposed but were deleted from along the fence line earlier described, the visual impact on the White residence would be unacceptable. Mr Wyatt has produced a photomontage showing the completed vegetation outcome from the perspective of the narrow north-western portion of the White residence's veranda. These photomontages, representing the state of vegetation at what is known as Progression 8 of the quarry project, are reproduced below. As earlier, the images are rotated to permit greater size and thus better interpretation.
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184Although Dr Lamb considers that the extent of the vegetation proposed to be planted between the White residence and the quarry is a little too extensive, he accepts that it is necessary for there to be screening planting between the White residence and the quarry (so that the quarrying activities are not visible) in order for this quarry expansion into the southern extraction area to be an acceptable visual impact. He concurred with Mr Wyatt's opinion that, absent appropriate screening, the proposal would be visually unacceptable from the White residence.
185Mr and Mrs White objected to the screening planting as they consider that it will alter and lessen the value of their otherwise pleasant rural outlook to the north and, particularly as we understood them, to the north and west towards the end of the spur that is proposed to be largely removed as part of the quarrying activities in the southern extraction area.
186During the course of the inspection of Mr and Mrs White's residence, Mr Robertson SC questioned the Whites concerning the view from the portion of the veranda and the adjacent open deck area in the south-eastern corner of their dwelling. Although the full extent of the view from this location was not able to be observed during the course of our site inspection because of inclement weather, it was Mr and Mrs White's evidence that, from this location, an extensive view across the flat area that had comprised the Tuckean Swamp, towards Evans Head and Goanna Headland was available and enjoyed by them (although they were not at an elevation that would permit them to view the ocean itself). This view was available because the White residence is located in the lee of (but toward the top of) a treed hill.
187It was Mr Robertson SC's submission that the principal and significantly more valuable view from the White residence was that available across the former Tuckean Swamp and towards Evans Head. Although the view to the north and north-west was a pleasant rural one, it was the applicant's position that the alterations to this view together with the likely predominant use of the outdoor living spaces (both on the open deck area and the adjacent portion of covered veranda where an outdoor dining table was located) meant that such alteration of the view from the narrow north-western portion of the veranda to the north-west did not warrant refusal of the proposal nor could be regarded as contributing to refusal.
188We accept the applicant's position on the visual impact from the White residence. It is clear to us, not only from our limited appreciation of the view to the south-east from the White residence but also the appreciation of the view in that direction that was available from the more elevated outdoor living area of the Wadsworth residence, our appreciation of which during the site inspection was discussed above, that this view is a much more significant and valuable view for the Whites.
189Whilst there will undoubtedly be very modest alterations to the nature of the rural views to the north and north-west that would eliminate some of the escarpment and open greenery and would replace it with a more forested outlook, in the overall context of views from the White residence, these alterations do not warrant any adverse conclusion being drawn against the proposal.
190In reaching the conclusion described immediately above, which was of importance in the context of our earlier discussion of the impact of this vegetation on the outlook from the Wadsworth residence, we expressly record that we accept and agree with the position of Mr Wyatt and Dr Lamb that, if there were not this significant degree of screen planting to prevent any view of the quarry from the White residence, there would be a significant adverse visual impact on the White residence. Whether, absent the proposed tree screening, such an impact would warrant refusal in its own right or merely contribute to consideration of refusal, is not a matter upon which it is necessary for us to speculate. We do, however, accept the agreed expert position that extensive screening along the fence line earlier discussed is necessary for protection of the White residence from significant adverse visual impacts.
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The view from Tuckurimba Road residences
191Receiver R 5 (off the south-western edge of the air photo reproduced later in our consideration of acoustic impacts) is the closest acoustic receiver on Tuckurimba Road to the site and is the most north-eastern of a small band of residences along this element of the south-west running ridgeline of Tuckurimba Road after its intersection with Wyrallah Road. During the course of the additional site inspection that was undertaken to understand what visual impact, if any, there would be from the longer view to the north-east, we also inspected the view from Tuckurimba Road in the vicinity of these residences. The relevant aspect of their outlook is that of looking back toward the crest of the ridgeline to the south of the proposed southern extraction area.
192As part of the evolution of the proposal during the course of the hearing, it was accepted by the applicant that, although the perimeter shielding bund on the southern side of the southern extraction area had been proposed to be left incomplete, completion of its western portion on the southern side was appropriate (thus providing a completely enclosing bund for this section). On this basis, we are satisfied that this bund and the plantings on it would provide appropriate visual shielding of southern extraction area activities for the residences on Tuckurimba Road.
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The view from Wyrallah Road in the vicinity of the Wadsworth residence
193As a vehicle travels along Wyrallah Road to the crest of the western ridge line in the vicinity of the Wadsworth property, the road turns gently westward to permit, absent ameliorative measures, a view into the site and particularly into that aspect of the site that is the north-facing slope comprising the proposed northern extraction area.
194The visual impact assessment experts had, as part of their consideration of the adequacy of the extent and design of vegetative screen plantings, agreed that it was necessary that there be a link between the existing vegetation in the vicinity of the southern boundary of the Wadsworth property through to the fence line on the western boundary (near Wyrallah Road) of the applicant's property. They agreed that these plantings were necessary to provide visual screening for the proposed northern extraction area.
195This proposed screen planting had originally been designated to be planting of koala food trees. However, during the course of the evidence given jointly by the ecological experts, their agreed position was that this band of proposed koala food trees was inappropriate as it would provide, as part of the existing vegetation and other proposed screen planting further to the east, a continuous vegetation corridor of koala food trees that would attract those animals towards Wyrallah Road. The ecologists considered that this was inappropriate as a major cause of mortality of koalas is road kill. As a consequence, the ecologists had agreed that this section of planting to the Wyrallah Road adjacent fence line should be deleted.
196Such deletion would result in a visual impact for passing motorists that would be undesirable (albeit fleeting).
197Although this matter was not fully explored, a consideration of the topography and the various air photos in evidence leads us to conclude that redesigned vegetation screen planting can still achieve appropriate visual protection for passing southbound traffic by relocating the proposed planting a little to the south (so that the vegetation has a discontinuity in it) and a requirement that such planting be specified to be trees of a type that are not attractive to koalas but would still grow sufficiently to achieve the necessary height to provide appropriate screening prior to commencement of the northern extraction area.
198Given that the proposed northern extraction area is, in the sequencing of proposed quarrying activities, to be the final stage of the quarry (some 15 years or so after commencement of the proposed expansion) and that plantings for visual protection in this area are scheduled to occur at a very early stage (to enable the vegetative screening to achieve the necessary height prior to quarrying in the northern extraction area), we are satisfied that this matter is capable of resolution and thus cannot contribute to warranting refusal of the proposal in any fashion.
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Introduction
199Following on from the further revision of the quarry management plan and the modifications to the way that the southern extraction area was to be operated, the acoustic experts undertook further consideration of the acoustic outcome for the schedule of construction activities that would be involved in establishing the various aspects of the quarry project. They provided a supplementary joint assessment, based on the full range of these construction activities. They had earlier provided joint reports concerning operational aspects of the proposal. It is necessary for us to consider, separately, whether or not the impacts of each of these acoustically impacting aspects of the proposal are acceptable.
200During the course of the final evidentiary phase of the proceedings, we heard oral evidence from Mr Bridges and Mr Tumney. In addition to their written material - material that had been prepared on the assumption that all elements of the proposal would be constructed and operated in accord with that which was sought by the applicant - we also questioned these experts on what would be the position, both during the construction activities and during the operation of quarry, if the attenuation bund in the vicinity of the Woolley residence was found to be unacceptable (as the unacceptability of this bund, on visual impact grounds, was pressed by the council).
201Although we have determined, for the reasons we have earlier set out, that this bund in the vicinity of the Woolley residence is unacceptable and is not to be permitted, we still need to consider the acoustic evidence concerning the construction activities necessary for the reconstruction of that bund and the impact that that construction would have on the Woolley and Griffiths residences.
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Construction noise
202We turn, first, to consider the acoustic impacts arising during the construction process for the establishment of the overall project.
203We do so on the basis that those elements of the table calculated by the experts with respect to the reconstruction of the bund in the vicinity of the Woolley residence should be treated as a separate phase of the proposed construction activities. We do this because of our earlier conclusion that the reconstruction of this bund is visually unacceptable and should, separately, be refused. However, if we are wrong in that conclusion, it is also necessary to have regard to the construction impacts that the reconstruction of the existing unapproved bund and earthen mounds would have on the Woolley and Griffiths residences.
204We also undertake this assessment on the basis of the acceptance by the acoustic experts of earlier identification of sensitive receiver locations for acoustic impacts. A consultant who had earlier been retained by the applicant (but who was no longer involved in the proceedings) undertook the identification of these locations. These receiver locations are:
R1 - the Wadsworth residence;
R2 - the Woolley residence;
R3 - the White residence;
R4 - an in-holding residence located to the west of the southern extraction area and with a frontage to Wyrallah Road; and
R5 - a residence located on Tuckerimba Road, a road running along the ridgeline to the south-west of the site.
205An air photo showing the locations of R1, R2, R3 and R4 (marked in yellow) is reproduced below. R5 is off the air photo to the bottom left-hand corner.
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206During the course of their oral evidence, asked the acoustic experts about the Griffiths residence, a residence immediately to the east of the Woolley residence. The proposition was put to these witnesses that, in addition to any impacts that might fall on the Woolley residence, there would be an element of acoustic impact, perhaps moderated by acoustic protection from the Woolley residence itself and, perhaps, moderated somewhat modestly by the additional distance to the Griffiths residence. As a consequence, we questioned whether the Griffiths residence should, separately, be regarded as a sensitive receiver and identified as R2A. They agreed that this would be an appropriate basis for additional consideration and we have proceeded on this basis. The Griffiths residence, R2A, is immediately adjacent to R2.
207A second matter (potentially significant in our assessment of acceptability of the acoustic impacts of the construction phases) was that Mr Reed had expressed the view that the construction time period assumptions did not adequately have regard to the likelihood of contingent extensions to the amount of time that would be needed for the various construction activities.
208It was Mr Reed's position that, for each time allowance made in the construction activity schedule that had been prepared by the applicant's quarry management experts, the time allowance should be increased by ~ 16%. It was his evidence, based on his extensive quarry management experience, that taking an initially calculated time allowance for a particular construction activity and making this upward adjustment should be regarded as the only appropriate basis for determining how long an actual time allowance should be made for an activity.
209In response to Mr Reed's concerns that there should be a further time adjustment allowance that would increase the relevant elements of the construction schedule by approximately a further 16%, Mr Robertson gave evidence on behalf of the applicant that he had, in fact, already incorporated in the times in the construction schedule what he considered to be an appropriate allowance for various types of machine downtime and other interruptions such as adverse weather. It was Mr Robertson's evidence that, if the further allowance that was proposed by Mr Reed were to be incorporated, rather than applying a 16% time allowance for such disruptions to construction, the effective operational time calculation would show an equipment utilisation and construction time of approximately 64% effective time - an allowance of some 36%. Mr Robertson's position was that the allowance proposed by Mr Reed, in effect, constituted double counting.
210However, as we understood Mr Reed's evidence and Mr Robertson's response to it, the various time allowances about which they differed related to the duration of the construction works from the commencement of a particular construction element to finalisation of it rather than the amount of time for which noise would be emitted during actual construction of that element.
Initial basis for assessment - the applicant's case at its highest
211We are of the opinion that the appropriate first step in our assessment of the acoustic impacts of the proposal should be to make that assessment based on assumptions that take the applicant's case at its highest. Testing the proposal in that fashion enables us to do so without necessarily determining all threshold acoustic impact issues that might otherwise count to the disadvantage of the applicant. Only if the applicant's case could stand on this basis would we need to resolve those differences. As we are satisfied that the proposal cannot stand on its best acoustic case, we need not determine whether or not it should be subject to some higher-set bar.
212As a consequence, we considered it appropriate to commence our acoustic impact assessment of the acceptability or otherwise of the proposal by deferring any determination of the necessity or otherwise of additional allowance for construction time proposed by Mr Reed and we will adopt the calculations made by Mr Bridges in his acoustic impact assessment tables (setting aside those higher noise levels put by Mr Tumney as likely to be recorded at the sensitive receivers and thus as appropriate to be the basis of assessment).
213Thus, we now turn to consider Mr Bridges' assessment for those construction activities including those associated with the bund in the vicinity of the Woolley residence.
214The acoustic evidence is that, for receivers R2 and R2A, Mr Tumney estimated that the likely impact for these two receivers (excluding noise from the reconstruction of the Woolley bund) would be dB readings in the low 40s on a 15 minute average basis. Mr Bridges considered that these numbers would be a little high but that numbers in the high 30s would be appropriate. The effect of this would be that there would be exceedences of the background levels at these receivers, of 1 or 2 dBs on Mr Bridges' estimate or, perhaps, as high as 5 dBs on Mr Tumney's estimates. We do not consider the exceedences for these receivers to be significant as, on Mr Bridges' numbers, they are within the statistical error range for such calculations.
215For the remainder of the receivers, Mr Bridges had undertaken precise calculations (rather than merely making estimates as he and Mr Tumney were required to do during the course of their oral evidence). The relevant results are set out in the table below, a table that has been extracted from the joint acoustic expert report produced in light of the final revision of quarry management plan. The table has been modified in the areas that we have marked with red print and yellow highlighting. The changes are made for the following reasons and on the following bases. The additional time for Bund A comes from Mr Robertson's quarry management construction timetable. The additional time for Bund B comes from Mr Robertson's quarry management construction timetable. The time marked as "Extra time (QMP)" has been added by us to balance the additional time required for the construction of Bund A. The additional results applied in the row "Extra time (QMP)" are inserted by us and assume the same noise level at R2 throughout reconstruction of the Woolley bund (Bund A) and the lowest consistent noise levels at other receivers.
ACTIVITY 1 ACTIVITY 2 TIME BRIDGES RESULTS
LOCATION EQUIPMENT LOCATION EQUIPMENT DAYS R1 R2 R3 R4 R5
Bund A Truck Bund C D8 0.5 36 58 39 34 31
20 days 20t Ex Bund G D8 0.5 37 58 36 33 30
Loader Bund B D8 0.75 37 58 50 35 33
Bund H D8 0.5 36 58 40 42 42
Bund E D8 0.5 41 58 37 33 31
Bund F D8 0.5 44 58 36 32 30
RL25m Pad D8, 40t Ex 2 33 58 37 33 31
RL28m Pad D8, 40t Ex 5 33 58 37 33 31
Extra time (QMP) 11.25 33 58 37 33 30
Central to South Track D8 Dozer SEA 4 D8, 20t ex 9 35 35 38 41 36
30 days Grader Bund D D8, 20t ex 2 35 34 36 47 46
Truck SEA 1 D8, 20t ex 7 36 35 39 44 45
20t Ex SEA 2 D8, 20t ex 8 32 35 39 43 45
SEA 3 D8, 20t ex 4 36 35 41 47 44
No Activity No Equipment SEA 5 D8, 20t ex, Tr 13.5 36 34 45 48 44
40 M Central Dam D8 x2, 20t ex 15 41 41 34 35 30
40 M North Dam D8 x2, 20t ex 15 47 39 32 26 26
Central Sed ponds 20t ex 5 20 24 22 23 17
North 7m Bund D8, 20t ex 5 39 34 37 39 40
[37]
216There are two aspects to our consideration of these numbers. The first relates to the basis upon which we should consider construction compared to the Industrial Noise Policy 2000 (the INP) published by the State government regulator (the regulator is so referenced given changes in name, over time, of the regulating body). The INP is expressed as not applying to construction activities for quarrying activities such as is here proposed (amongst other forms of enterprise excluded).
217New Interim Construction Noise Guidelines, recently published by the regulator, also expressly provide that they do not apply to construction activities associated with quarrying. The Interim Construction Noise Guidelines suggest that recourse for such excluded activities, including quarrying, should be made to the INP. Unfortunately, the INP has not been revised to make provision for such construction activities. There is, therefore, a lacuna in the regulatory framework.
218As a consequence, we are left to assess whether exceedences of the background level by more than 5 dBs for each of the receiver locations, this being the consistent position for receivers R2, R2A and R3 (for which Mr Bridges' background level is 32 dBs) and for receivers R1, R4 and R5 (for which Mr Bridges' background level is 35 dBs - the higher figure being because of the proximity of theses residences to roads carrying volumes of noise producing through traffic).
219It can, therefore, be seen that the operational noise standard for such locations, this being the background level + 5 dBs, on a 15 minute average basis, is exceeded at varying times for each of these receiver locations. The calculation of the length of time for which each of these six sensitive receiver locations would experience breaches of background + 5 dBs is set out in the earlier table. The earlier table is effectively in two parts - the first relates to the noise at the various receivers that will be generated if the Woolley bund is to be reconstructed and the second to those construction elements that do not incorporate any acoustic impact from that reconstruction.
220The question that arises, in a strict assessment, is "can the length and extent of these exceedences be considered reasonable and acceptable?" This question needs to be considered for both the construction phase that involves reconstruction of the Woolley bund and, separately, for the acoustic impact of the construction activities that are necessary whether or not the Woolley bund reconstruction is approved or not.
221We do not consider that either of these separate construction phases can be so regarded.
[38]
The Woolley bund
222We turn, first, to deal with the impact of the reconstruction of Woolley bund on the Woolley and Griffiths residences. For each of these residences, there will be an exceedence of the background level by significantly more than 20 dBs for a period of at least 20 days taking Mr Robertson's figures at their highest. Each of these premises will also have, later, a further 30 days of exceedences in excess of 7 dBs above the relevant background reading. Given that is measured on a logarithmic scale rather than on a pure arithmetic scale, this increase in level for these two residences is dramatically in excess, qualitatively, of any modest period of construction impact of a temporary nature that could be contemplated taking even an optimistic position from Mr Tumney's evidence.
223Mr Robertson SC put two propositions to us with respect to why these levels were not so unreasonable as to warrant rejection of the reconstruction of the Woolley bund. The first of these was that this would only be necessary in order to provide an ongoing ameliorative structure to prevent adverse acoustic impacts on these residences over the 20-year life of the quarry in its expanded form.
224Second, he suggested that the applicant was prepared to negotiate better a shorter or longer and thus more intensive or less intensive construction campaign for the reconstruction of this bund and contemplate breaks in such a construction campaign for particular instances such as examination periods for occupants of either residence if this were applicable.
225He also postulated that it would be possible for the applicant to contemplate relocating the residents of either or both of these properties to alternative accommodation during such a construction campaign of whatever duration for the reconstruction of this bund. This final suggestion, we note, has not been accompanied by any offer of any nature to do so and is, therefore, purely speculative. To the extent that it might be a possible conditional response to such an activity, we have no evidence whatsoever of the applicant might be prepared to provide if anything more as to the disruption that such relocation for a first period of a month and a subsequent to that of a month and a half for each of these families would entail. We therefore consider it entirely inappropriate to contemplate this option as part of the amber light approach.
226We do not consider that the option of leaving it to the parties to sort out what might be the brevity or extended length of a more or less intensive and unacceptable level generating construction program is a desirable one. There was no evidence from Mr Woolley or from the Griffiths that this approach was, in any way, acceptable to them or would result their concerns about the impact on their lives of this proposed reconstruction. In some respects, this option might be regarded as offering a choice between being shot or hung!
227As to the proposition that this entirely unacceptable set of acoustic impacts should be endured by the occupants of two residences in order to avoid being subject to 20 years of unacceptable acoustic impacts of a somewhat lower level, in all likelihood, and from a variety of different directions, this is a choice of a similar type to that earlier described. We also reject that this would be an appropriate basis for overriding the obvious concerns that would otherwise exist about the very high and extensive adverse acoustic impacts of the construction phase on these two residences.
[39]
Other construction noise impacts
228We now turn to consider the acoustic impacts from those elements of the construction program that are exclusive of any proposal to reconstruct the Woolley bund. We have done so whether or not we are correct in our assumption that the Woolley bund should not be reconstructed for the reasons earlier set out.
229We have reached this conclusion for a single comparatively simple reason. Although the exceedences are modest, they are spread across all six sensitive receiver locations for varying periods. However, we accept Mr Tumney's evidence that the sorts of temporary exceedences that might be considered reasonable in such circumstances for matters such as disassembly and reconstruction of machinery for the purposes of moving it from one location to another within an operational site such as quarry or for self-propelled movement of such machinery from one location to another when that movement involved travelling beyond shielding arrangements, could extend, on our notes of his evidence, or periods of up to 4 weeks or so. Such an exceedence, we consider, would be a reasonable limit and, indeed, might be modestly exceeded and still remain acceptable.
230What is here proposed goes well beyond anything that might be regarded as modest exceedence of those timeframes. As can be seen from the above table that we have extracted, very significantly longer periods of time of non-compliance with background +5 dB is will be experienced at a number of locations. Even if we were to discount consideration of the impact on R2 and on R2A on the basis that the assessment for these two receivers is not accurately modelled and was required of the witnesses on the run, the period of exceedences for other locations still remains very significantly longer than the 20 working day or slightly longer period of time that might be appropriate on the basis of Mr Tumney's evidence. In particular, on our understanding of Mr Bridges' figures, the White residence would experience over 40 days of non-compliant acoustic impacts of more than 5 dB above background and that this would be, effectively (although not absolutely) continuous in its impact.
231On the other hand, as we understood him, it was Mr Bridges' position that, because of the comparatively small level of exceedence, the duration of that exceedence was neither critical or, under the circumstances, unreasonable.
232As we have noted shortly earlier in this commentary, whilst we would be prepared to accept such a proposition for exceedences of the level postulated by Mr Bridges' data for slightly longer periods than the approximately four weeks maximum that Mr Tumney considered appropriate, the exceedences that are applicable to R1, R3, R4 and R5 in total are for sufficiently long periods of time beyond even such a modest extension, when combined with the various exceedence levels, as to be unreasonable.
233The basis upon which we consider the exceedences for these receivers to be significant and to be taken into account is that they are above the statistical error range for such calculations and, even on Mr Bridges' lower numbers, still impact for extensive periods at the relevant receivers.
234It is our assessment that the length of these periods of time, being quite significantly longer than even a generous interpretation of the time for which such exceedences might be permissible, not merely renders this aspect of the proposal unacceptable but does so in a fashion to warrant refusal absent any offsetting factor.
235However, as noted in the earlier, this conclusion is also subject to the balancing assessment that we are required to undertake pursuant to cl 12(2)(b) of the Mining SEPP to assess whether any "public benefit" of the proposal constitutes such an offsetting factor.
[40]
Operational noise
236Mr Tumney and Mr Bridges were in agreement that compliance with the INP at receivers 2 and 2A could not be achieved, as we understood their evidence when we asked them to consider the position, if quarrying activities were being undertaken in the proposed expansion to the south of the existing quarry at any location in the proposed southern extraction area that would be in line of sight to these receivers. This was the position, as we understood it, that would be applicable even on the more favourable meteorological construction advocated by Mr Bridges.
237A similar position applies, again as we understood their evidence, to all current quarrying activities being undertaken in the central extraction area and to all future quarrying activities proposed for this area.
238For the northern extraction area, although Mr Tumney expressed the concern that the attenuation bund proposed to be constructed during the initial phases of operation in the northern extraction area would not provide adequate shielding to the Woolley residence because it did not extend to the south-east to reach the current quarry access road, after examining the relevant quarry management plan diagram, he accepted, as we understood his evidence, that this would not be the position. Although he also expressed a reservation concerning the adequacy of the bunds protecting the Woolley residence as the northern extraction area activities moved down slope and toward the north, he did not express a firm considered opinion, again as we understood his evidence, that there would be an adverse impact on the Woolley residence or on the Griffiths residence behind it from operational activities in the northern extraction area.
239Although we do not have a firm basis upon which we could reject approval of the proposed northern extraction area as, on visual impact grounds there is no basis to do so and, on acoustic grounds, there is uncertainty, we do not consider it appropriate to have the results of these proceedings be that the present quarry will retain its current development consent (whether or not it were to be the subject of other proceedings or processes by the council is not a matter appropriate for our speculation or comment) and to refuse the expansion of the central extraction area and the totality of the proposed southern extraction area whilst leaving, for 15 years time, the commencement of extraction from the northern extraction area. There are three reasons why we have reached this conclusion.
240The first is that several of the activities associated with the establishment of the northern extraction area during the initial construction process would have or are likely to have, depending on the receiver, adverse acoustic impacts. Although we are not able to quantify those impacts with certainty as, to some extent, they are intertwined with acoustic impacts that would arise had the Woolley bund been approved for reconstruction, nonetheless there will be adverse acoustic impacts necessary for the construction of the two visual shielding bunds in the proposed northern extraction area.
241Second, there is the element of uncertainty with which we are left concerning possible operational acoustic impacts of the proposed northern extraction area if it were to be approved, now, and commenced extraction in some 15 years time, a delay necessary as an effective minimum to the operation of this area as a consequence of the need for the screening plantings to attain sufficient height to provide visual protection to the Wadsworth and, possibly, Woolley residences.
242Finally, as we understood the submissions of Mr Robertson SC when asked about the possibility of approving the proposed northern extraction area only through the "amber light" approach, it was his submission that to do so would, effectively, be tantamount to constructive refusal. With respect to this proposition, we do not express any opinion.
243However, in their totality, we are satisfied that that the first two of these reasons why we should take a precautionary approach to the proposed northern extraction area and, thus, not give it any stand alone approval as part of these proceedings.
244Before concluding this section on acoustic impacts of the proposal, there is one general comment that we wish to make in reinforcement of what we said earlier concerning the potential choice proposed by the applicant for those occupying the Woolley and Griffiths residences. That choice, of accepting significantly excessive adverse acoustic impacts for an extended and immediate period of time (but, comparatively, a short period of time) compared to the adverse acoustic impacts that would befall them if they proposed quarry were to proceed without a reconstructed Woolley bund is not a reasonable or civilised choice that those households should be forced to make. A planning principle enunciated by the Court in Stockland Developments v Wollongong Council and others [2004] NSWLEC 470 concerning attenuation of such impacts is in the following generalised terms:
6. As a general planning principle, where there is conflict between a noise source and a sensitive receptor preference should be given to the attenuation of any noise from the source rather than at the sensitive receptor. This is true whether the noise source generated by a proposal is a new noise and the receptor exists or the noise generator exists and the receptor is a proposed use. In deciding whether the noise should be attenuated at the source, consideration should be given to the degree of conflict between the appropriate noise goals, the difficulty and cost associated with treating the noise at the source, the willingness of the noise generator to be treated and the potential amenity impacts associated with noise attenuation at the receptor. Depending on the circumstances of the case, the cost of attenuation measures may be borne by either party or shared between them, irrespective of the location.
245In this instance, attenuation on the acoustic emission causing property is, itself, entirely unacceptable in the form now proposed (i.e. reconstruction of the Woolley bund). We do not understand there to be any other functionally effective alternative on the site to provide the necessary attenuation. Attenuation at the receivers is, also, not possible. There is, in addition, Mr Woolley's rejection of such a proposition on the basis that double glazing or air-conditioning and the like would leave him exposed to ongoing costs that he would be obliged to meet, even if such attenuation were feasible within the structure of his residence.
246Similarly, for the Woolley and Griffiths residences, it is not appropriate for us to overlook the nature of the properties upon which these residences are located.
247Mr Robertson SC was at pains to point out to us, in another context in the proceedings, that these parcels of land upon which the Woolley and Griffiths residences are erected are not rural residential allotments. They are allotments of a nature where residences are permissible in conjunction with agricultural activities. Such agricultural activities inevitably require outdoor activities on more than merely weekends. Those conducting such outdoor activities within the framework of the permitted and anticipated uses for these allotments should not be the subject of unacceptable long-term acoustic impacts of potentially up to 20 years duration.
[41]
Adjustment of bund heights and moveable barriers
248The quarry management plan also envisages that, to take steps necessary to ensure acoustic compliance, the quarry manager may make minor adjustments to the height of the planned array of attenuation bunds (to be constructed prior to commencement of the proposed quarry expansion) by raising their upper level in order to ensure ongoing compliance of the sensitive receiver locations.
249In addition, the quarry management plan envisages the use of temporary shielding bunds or moveable acoustic barriers (such as shipping containers) to provide the protection in specific instances where there might otherwise be an impact on a sensitive receiver. Such bunds would be, as we understood it, pushed into place or moveable barriers relocated whilst such specific activity was occurring.
250With respect to the first of these adjustment elements, Mr Tumney expressed concern that the ability of the quarry manager to calculate the necessary additional height should such adjustment to a bund prove to be necessary. He illustrated this reservation by reference to what had occurred during the course of the third phase of field inspections when, amongst the inspecting party, there had been a range of heights estimated, at a considerable distance from the equipment, of the height of a particular piece of quarry equipment above the pit floor in one of the quarries being inspected.
251We accept, and we did not understand Mr Tumney to dispute, that such minor adjustments to attenuation bunds would be capable, in appropriate instances, of addressing concerns about potential minor exceedences.
252We are of the opinion, had this been the only matter requiring to be addressed satisfactorily before approval could have been given to the project, that it is possible that this might have been able to be resolved by a condition requiring the attendance of an acoustic consultant to check bund heights either on a regular basis or whenever the quarry manager considered that additional height might be needed to be added to any attenuation bund or under defined circumstances when a complaint about an acoustic impact might have been made by residents of one of the sensitive receivers.
253Mr Tumney's criticism of the proposal for temporary bunds or moveable shielding, as we understood it, concerned what he regarded as the inability of such a system to provide the shielding for mobile plant operations. We understood him to accept that it was possible, subject to providing sufficient space for plant servicing and safe operational activities, for quarry plant operating as fixed point noise sources that such temporary bunds or moveable shields could be effective for shielding purposes for equipment operating in close proximity to and immediately behind such shielding. We also accept that the necessity for and design of such bunds, including any appropriate requirement for the involvement of the acoustic consultant in such design, could likely have been dealt with by condition.
254On the other hand, we are not so satisfied about the certainty that temporary attenuation bunds or moveable shielding could provide adequate shielding of mobile plant. We consider it a matter of concern as to whether or not any condition of consent dealing with the need for temporary bunds or moveable shielding for mobile plant could be capable of to being relied upon with sufficient certainty to render the risk of regular acoustic non-compliance so low as to be acceptable. The possibility that an acoustic consultant would need to be posted on the site on a semi-permanent (and therefore, we consider, unrealistic) basis could not be ignored and would clearly be unreasonable.
255However, given our overall conclusion about the unacceptability of the proposal and the necessity to refuse it development consent, it is unnecessary for us to take that matter further.
256Mr Tumney also expressed the view that, if the bund adjacent to the Woolley evidence were not constructed, there would be a direct line of sight and thus potential acoustic impact on receivers R2 and R2A from truck loading activities on the operational pad to the north of the push up and over bund during the course of the push up and over operation of the southern extraction area. It was his view that the stepped bund to the east of the push up and over operation would not provide appropriate attenuation for all activities on this operational pad (including any pulling down activity by the excavator of material that might become stuck on the northern face of the push up and over bund after the material had been pushed up and over the edge by the bulldozer.
257Although we understood that Mr Bridges accepted that there might be some line of sight from these activities to receivers R2 and R2A and thus some noise transmission to them from these activities, it was his opinion that the sound power level was such that there was likely to be complaints from these receivers. Again, given our overall conclusion on operational noise matters discussed elsewhere, it is not necessary for us to reach a definite conclusion about this difference of opinion.
[42]
Importation of material for the push up and over bund
258As a final acoustic matter, we earlier observed in there might be a necessity to import material, from the central extraction area, for the purposes of constructing the push up and over bund. Such an operation, if necessary, would involve the transportation of the required material along the southern access track from Wyrallah Road to the southern extraction area.
259The acoustic experts were asked, if this material importation was to be necessary, would any acoustic impact on receiver R4 be acceptable. It was their agreed position that, at the maximum likely number of truck movements of four truck movements per hour, in this eventuality, there would be no unacceptable acoustic impact provided the access track from Wyrallah Road to the southern extraction area was required to be appropriately constructed and maintained.
[43]
Final conclusion on acoustic impacts
260We are satisfied that, taking the applicant's case at its highest on acoustic impacts, the Woolley bund warrants refusal on an acoustic construction impact alone (because of the unacceptable level and duration of the adverse acoustic impacts on the Woolley and Griffiths residences).
261As a result of the unacceptability of the bund in the vicinity of the Woolley residence, it is clear that any approval for expansion of the present central extraction area or permitting operation of the southern extraction area beyond the extremely limited operations that might be possible up to the conclusion of the push up and over operations would cause unacceptable impacts on the Woolley and Griffiths residences.
262This, inevitably in our opinion, leads to refusal of the proposal in its entirety, unless offset by consideration of cl 12(2)(b) matters under the Mining SEPP.
263For the reasons set out, is also entirely untenable to contemplate approval of the other construction acoustic impacts (excluding consideration of the impacts of the proposed reconstruction of the Woolley bund). This also renders it entirely untenable to approve the residual construction phases of the project for acoustic impact reasons (again, pending Mining SEPP offset considerations).
264Given the lengthy periods of time (a decade or so) that would be involved in the acoustic impacts periods of these two operational elements of the proposal, again subject to our later consideration of the facultative provisions in the Mining SEPP, the operational acoustic impacts of these elements of the proposal also, separately, warrant the refusal of such elements.
265We noted, at the commencement of our assessment of the acoustic impacts that we would proceed by assessing the proposal using Mr Bridges calculations, that is the position most favourable to the applicant. Having done so and the proposal failing on multiple grounds on the basis on that assessment, it is unnecessary to deal with the positions advanced by the council's witnesses that were more adverse to the applicant. Each of these further factors, if incorporated in the assessment of the activities necessary for the establishment and ongoing operation of the project, would result in acoustic outcomes impacting more adversely to the applicant.
266This approach, in our opinion, is the correct and preferable one upon which to make these assessments of acoustic unacceptability of the project despite the fact that, on the applicant's own expert's acoustic evidence, we would reject the proposal on acoustic impact grounds in any event.
[44]
Introduction
267Quarrying operations in the southern extraction area are initially intended to operate by a system involving excavation of rock within a steadily deepening crater area until a sufficiently low level quarry floor is reached within that contained quarrying area for the containing crater wall to be broken through in a northerly direction - generally toward the current central extraction area. This method of initial operation is intended to act so that there will not be any acoustic non-compliance of operational requirements by either equipment operating within the quarry pit or from the loading equipment on the outside of the pit and the trucks that are to haul the material away.
268On the external part of this operation, a bund is proposed to be constructed to the east, following down the slope of the hill in a stepped fashion. This bund will provide protection from acoustic impacts for the White residence to the east.
[45]
The acceptability of the push up and over bund
269To ensure that no breach is caused by equipment operating inside the quarry pit, an operational technique described as "push up and over" is proposed from within the quarrying area. It is intended, as described to us, that a D8R bulldozer will be used within the pit for this purpose and that this will operate in a fashion so that the engine of the bulldozer does not rise above the level of the protective bund to the east nor above the lip of the push up and over bund to the north.
270Mr Robertson, Mr Thompson and Mr Weir gave quarry management evidence on behalf of the applicant whilst Mr Reed gave quarry management evidence on behalf of the council. During the course of the preparation for the third phase of the hearings that took place in Lismore in early February, Mr Reed raised significant concerns about the viability of the push up and over operations as then designed. During the course of those hearings, the applicant's experts accepted that further work needed to be undertaken to refine the proposed push up and over operation to meet the concerns that were raised by Mr Reed. Leave was granted to the applicant to prepare those amendments and a timetable was set for the preparation of further material and for further joint conferencing between quarry management experts prior to the commencement of the fourth phase of the hearing in Sydney in March.
271In addition, as discussed elsewhere, this further work and joint conferencing was to result in the preparation of a schedule of agreed construction activities, as opposed to quarry operation activities. This included:
the location of those various construction activities;
the sequence in which they were to occur from the commencement of such preparation activities;
the amount of time that each of those activities was to take (including any overlap with any other element of the construction activities); and
the nature of the equipment proposed to be used for each activity.
272As earlier discussed in considering the proposal's acoustic impacts, this construction schedule was necessary to enable, particularly, the acoustic experts to provide information about the likely acoustic impacts for the various construction phases.
273When the quarry management evidence commenced at the beginning of the fourth phase of the hearings, Mr Reed expressed continuing reservations concerning push up and over operations proposed for the initial phase of the southern extraction area. His reservations feel into three separate categories. These were:
geological;
geotechnical; and
operational safety.
274His concerns with respect to geological issues fell, as we understood them, into three separate compartments. The first related to whether the D8R bulldozer proposed to be used for the purposes of pushing up and over would be able to do so in a fashion that delivered useful amounts of material to the loading operation on the other side of the pit wall. The second matter that he raised was whether, because of what he understood to be the hardness of the material after the initial layers of topsoil overburden and weathered sandstone were removed, the harder, lower in the pit, sandstone would be able to be extracted using the machinery that was proposed and whether this would result in a D9R bulldozer being used to do the pushing up and over. The third matter was whether or not there would be sufficient available and appropriate material able to be extracted during the first establishment activities of the push up and over operation to construct the ramp/bund up and over which the material was to be pushed.
275With respect to the first of these, Mr Robertson gave evidence concerning the specifications of the D8R bulldozer that were set out in Exhibit YY as part of Appendix 3-B to that exhibit and the assumptions that he had made concerning the ability of the proposed machine to push up and over using a technique (shown in a diagram tendered in the proceedings and reproduced below) that has the delivery of a second load of material by the bulldozer causing the first load, that closest to the top of the steep slope on the outside of the push up and over bund, to commence spilling down slope to the north toward the awaiting loading machinery.
[46]
276The diagram, which initially caused some confusion as it appeared to envisage material at rest over the lip of the bund peak (a position that Mr Reed considered was not possible), was clarified as representing that material as starting to be pushed over and spilling down the steep, outer face of the bund. We are satisfied on the basis of this evidence that this method of physical delivery of the material when coupled with the limited use of dragging down by the excavator proposed to be located on a loading pad down slope on the outside of the push up and over bund can operate in a functionally successful fashion.
277The push up and over bund is proposed to be constructed in a series of compacted layers. Each of these layers is to be approximately 250 mm thick. It is proposed that the material for the construction of this bund will be available from the southern extraction area itself after the topsoil overburden has been removed.
278Mr Reed expressed a concern that there would not be sufficient material of an appropriate quality available from immediate sources in the southern extraction area for this bund to be constructed to an adequate standard. On the other hand, Mr Robertson expected that sufficient material would be available from this source.
279Mr Reed agreed that the material that is required to be available for this purpose, if not available in the southern extraction area, is available from material able to be quarried from the existing quarry pit in the central extraction area. Mr Reed and Mr Thomson also agreed that it would be possible to specify the necessary standard of material required for this bund construction by having regard to the California Bearing Ratio (CBR) of the material and requiring that a specified CBR be met by material used for the construction of this bund.
280Mr Reed accepted, as we understood him, that if there were a required CBR specification for the material and a requirement that it be sourced from within the overall site, if additional material of the appropriate CBR were necessary to be imported to the southern extraction area from the existing central extraction area, this could be done to resolve his concern.
281We are satisfied that, subject to the settling of the terms of such a condition (subject to the additional material specification matters later discussed in the context of the geotechnical evidence), from a construction adequacy perspective, this matter is able to be resolved.
282Matters concerning acoustic and air quality impacts of such importation of material on the residence at the entrance track to the ridgeline leading to the southern extraction area from Wyrallah Road are dealt with elsewhere. These matters arise as a consequence of the fact that, if it were to be necessary to import material of the appropriate type from the central extraction area, that material would have to be transported via the existing haul road from the central extraction area to Wyrallah Road; turning to the west along Wyrallah Road and then turning back into the site along the access track along the spur to the southern extraction area. This access track runs immediately adjacent to the western boundary of a residence, R4, with a frontage to Wyrallah Road as R4 is surrounded by the applicant's property.
283Mr Reed expressed considerable concern (based on his analysis of the available data, such as it is, concerning the geological formation of the southern extraction area) as to whether or not the equipment proposed to be used within the southern extraction area would be capable of breaking and extracting the harder materials expected to be reached after the overburden and weathered sandstone were removed. We note, at this point, that there is no proposal to use blasting for the extraction of material from the southern extraction area.
284There was, at its most charitable, a deal of confusion on Mr Robertson's part as to the compression strengths of the various types of rock which had been given hardness descriptions. This may have arisen from the fact that the relevant report that was produced by Mr Robertson's company was written by a member of the company's staff under Mr Robertson's supervision and may not have benefited from as close a level of supervision as might have been appropriate to ensure greater clarity and coherence on this point.
285Such information as we have available is derived from, in Mr Robertson's opinion, an analysis of the rock core samples taken from borehole BH4 and borehole BH5 (being boreholes at the eastern end of the southern extraction area and to the west of the western end of the southern extraction area respectively). Mr Robertson also relied on his analysis of borehole BH1 in the central extraction area, a sacrificial borehole that had already been quarried out.
286It was Mr Reed's opinion that the data that was able to be obtained from these three boreholes did not provide an adequate basis upon which any appropriate and necessary assessment of the hardness of rock in the initial stages of the southern extraction area could be undertaken for the purposes of understanding whether or not the push up and over operation could be appropriately established. It was thus Mr Reed's opinion that an additional borehole was required in the vicinity of the push up and over bund location to establish the precise geological composition of the formation at this relevant location. He was of the opinion that it was not possible to extrapolate from the two boreholes on the southern extraction area ridgeline as to what might be the geology in the saddle of that ridgeline where the push up and over bund is proposed to be constructed. He also expressed the view that, because the face of the central extraction area where BH1 had been drilled was at a lower RL to the boreholes to the south and had been, in his opinion, subject to possible differential weathering as part of its geological formation, reliance on information from that borehole was also not appropriate. We note, here, that Mr Reed has geological qualifications.
287On the other hand, Mr Thompson expressed the view that, if the proposed predominant operating unit for both extracting the material from the quarry floor within the southern extraction area's initial pit and then pushing it up and over the bund (the D8R bulldozer) was incapable of extracting the material from the floor of this element of the southern extraction area, other equipment including a D9R bulldozer, a rock hammer or a rock saw were capable of being used, if necessary, in an appropriate combination as required in light of the rock formation encountered, for this purpose.
288Mr Thompson agreed that, if it became necessary to use equipment additional to the operational capability of the D8R bulldozer for this purpose, it would be appropriate and acceptable to impose two conditions on such an arrangement. Those conditions were, first, that all pushing up and over would be undertaken using a D8R bulldozer (even if a D9R bulldozer were being utilised at that time in the southern extraction area). Second, he also agreed that it would be appropriate, for acoustic protective reasons, to require that only one such piece of equipment could be used at any time whilst the push up and over bund operation were being undertaken prior to the phase for the southern extraction area described as breakout. Breakout is proposed to occur when the wall between the southern extraction area and the outside loading area would be removed and the quarried material delivery operation would cease to be push up and over but would be direct loading on to haul trucks with all of that activity being provided with acoustic protection by the stepped bund to the east.
289Although the question of the ability to extract the material would undoubtedly go to the economic viability of the proposed quarry expansion, we are satisfied that there would be no acoustic impact additional to the impacts that were dealt with earlier that would arise from the extraction of hard material if Mr Reed's fears were to be realised. We do not consider that it is necessary to have information from a borehole through the centre of the proposed southern extraction area to understand the precise geological composition of the quarry resource below it as a consequence of reaching this more general conclusion. It therefore follows that this geological issue raised by Mr Reed cannot contribute to refusal of the proposal.
[47]
The geotechnical adequacy of the push up and over bund
290In response to Mr Reed's concerns about the ability of the applicant to construct the push up and over bund, in addition to the agreement that material might be obtained from the central extraction area for such a process, the applicant arranged for this matter to be considered by Mr Turner, a geotechnical engineer employed by Coffey Partners. The council's relevant expert was Mr Carr. Toward the conclusion of the final phase of the hearings, they gave concurrent evidence concerning this topic.
291With respect to the proposition that had arisen out of the quarry management experts evidence that specification of a CBR for the material would be a sufficient specification for the material proposed to construct the push up and over bund by being put down in successive 250 mm layers and compacted, the agreed position between Mr Turner and Mr Carr at the conclusion of their evidence was that it was possible to specify a material that:
was of sufficient particle size;
adequate hardness; and
did not have rounded surfaces
to ensure that, when coupled with an appropriate setback from the peak of the push up and over bund, construction of the underlying bund could be regarded as adequate.
292Although matters of detailed conditions were not dealt with despite the very lengthy hearings, it was quite clearly the position on this topic, as on a number of other topics, that it would be reasonable to expect that an appropriate agreed condition of consent could developed by these experts. As a consequence, we are satisfied that that this concern of Mr Reed cannot contribute to refusal let alone warranting refusal of the proposal outright.
293There also remained a concern, one of those pressed by Mr Reed (and also adopted by Mr Carr) that there was a significant safety risk in permitting a push up and over operation for this material to be extracted. This would occur during the third and fourth cuts of the southern extraction area, it being expected that the material from the first and second cuts would be used for the visual protection bunds necessary for the initial phases of the southern extraction area quarrying or for the construction of the push up and over bund itself.
294We have earlier dealt with (and set out the reasons for) the non-impact of the importation, if it were to be necessary, of appropriate material from the central extraction area in general terms. It is appropriate to note here, however, that during the course of this evidence, concern was flagged on behalf of the council that, if such material had to be imported along the existing track from Wyrallah Road immediately to the west of receiver R4, this would necessitate there being a gap in the element of the southern extraction area proposed to act an attenuation bund for receiver R4. However, we are satisfied that, although there might need to be a gap in that bund, such a gap could be constructed on a shielded basis with a subsidiary offsetting bund around which any delivery trucks would need to travel and that such a shielded entrance design could be dealt with by conditions of consent requiring that such design be to the satisfaction of the council (if it turned out to be necessary for such material to be imported).
295One unexplored matter arises with respect to the possibility of importation of material from the central extraction area for the construction of the push up and over bund if there were to be an inadequate supply of appropriate material available from within the southern expansion area itself. This matter, mentioned in passing by Ms Duggan, is that the use of the existing access track along the southern side of the R4 in holding might prove to be incompatible with the establishment of the more southern of the two ecological offset areas. This matter was not otherwise explored save for this noting by Ms Duggan of the potential problem.
296As a consequence, we do not consider that this matter could contribute to any finding of unacceptability concerning the initial operational phases of the southern extraction area. We have reached this conclusion not because we are satisfied that there may not be a problem but because the matter was not sufficiently dealt with in evidence or submissions to enable us to draw any conclusion one way or the other. The result is, in our assessment, that, had there been an otherwise acceptable basis upon which the proposal could have been approved on the planning matters within the present scope of our consideration, the appropriate response to this issue would have been to require a condition of consent prohibiting vehicle access through this area for such purposes - thus leaving the appropriateness of such access (and, if it were to be appropriate, the terms of and constraints on such access) to be dealt with on an application to modify the consent for the purpose of permitting such access. Such an approach, given the sparseness of the evidence and the brevity of the submission on this point, would have been an appropriate precautionary response enabling proper future consideration of the issue (should any need to do so have arisen).
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The question of the public benefit [cl 12(b) of the Mining SEPP]
297As in earlier noted, the Mining SEPP assessment requires us to consider the public benefits of the project as one of the matters to be taken into account before reaching any conclusion on permitting or refusing a proposal. It is also clear that the Mining SEPP is a beneficial and facultative instrument for proposals that fall within its scope. It is obvious, in our view, that the Mining SEPP intends that, if a particular proposal has adverse impacts, those adverse impacts may be offset, sufficiently, by public benefit considerations to enable the proposal to be approved despite those adverse impacts.
298As we have earlier found that there are a number of adverse impacts that, either individually or collectively, warrant refusal of the proposal, our assessment of whether there are any public benefits of the proposal and, if so, whether they are sufficient to require us to set aside our earlier findings as necessitating the refusal of the proposal becomes a matter critical to the outcome of these proceedings.
299Because of the terms of cl 12(2)(b) of the Mining SEPP, we specifically asked Mr Robertson SC to address, as part of his closing submissions, what matters he wished to put to us as establishing what the applicant considered were the public benefits of the proposal. Given the importance that this assessment now holds for the fate of the proposal and to understand, clearly, our conclusions on this aspect of the assessment process, we first reproduce below Mr Robertson SC's written dot point outline submission on this topic. We then turn to set out in full those matters referred to in Mr Robertson SC's outline other than those dealing with Mr Champion's affidavit (as these are dealt with in the following portion of these reasons):
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300A difficulty that we have in considering this material is, of course, the fact that we have simply been referred to it as a list and have not had the opportunity in any significant fashion to question how it might all tie together or, particularly, how we might discount this material in light of the consistent reference to the ability of the proposal to provide sand of various types and the much needed benefits of the provision of those sands when this aspect of the proposal has been abandoned.
301We have considered the material extracts to which Mr Robertson SC has referred, in his note, in order to draw the applicant's case out, as best we are able, at its highest for this consideration pursuant to cl 12(b) of the Mining SEPP. Although some of this material was prepared for the application under Part 3A of the Planning Act, we have earlier set out why we accept such material in those proceedings.
302We turn first to the two documents forming part of the attachments to the Updated Environmental Impact Statement Volume 1 (the UEIS) to which only broad and non specific reference is made at the commencement of Mr Robertson SC's note - the Greenhouse Gas Emmissions Assessment (Tab 10 in Volume 2 of the UEIS) and the Socio Economic Considerations paper (Tab 34 in Volume 6 of the UEIS).
303These two documents are cited to us in their entirety. We consider that they provide little assistance to us in understanding what might be any public benefits to come from approval of the proposal. We have reached this broad conclusion, with respect to each of the documents, for differing reasons for each document.
304First, with respect to the Greenhouse Gas Assessment, whilst this document is sufficient (although barely so) to enable us to conclude that the relevant assessment threshold contained in cl 14 of the Mining SEPP has been satisfied, it certainly does not provide any support for public benefits to be derived from approving the proposal. There are a number of separate reasons for this. Although the assessment makes quite sweeping assertions about greenhouse gas emissions that will be generated by the quarrying activities, there is no discernible basis specifying, for example, the nature of the machinery upon which the fuel consumption assessments have been made or how fuel efficiency assumptions for such machinery might be based.
305In addition, we have set out, later, in our extracting of detailed material from Volume 1 of the UEIS and from the AVKO market assessment report more detailed material said to demonstrate the value of the project. Amongst other things, these more detailed extracts concerning markets which might be capable of being supplied, at least in some respects (setting aside such of the material as relates to the now abandoned sand supply aspect of the operation) do not sit completely comfortably with the travel distance assumptions that here are cited to underpin the greenhouse assessment report. These two reasons, in our opinion, are sufficient to set aside this document.
306In passing, we note that this document was written in early 2009 and that the project has, in the intervening period of time, undergone considerable refinement that would also not appear to be entirely consistent with the broad underpinning assumptions of this document. However, that temporally derived potential unreliability is not a reason upon which we base our rejection of this document for these public benefit purposes.
307We now turn to be Socio-Economic Analysis document. We note that the local employment benefits to be generated if the proposal were to proceed are inconsistent with the claimed benefits set out, albeit in very fuzzy terms as later discussed, in 4.5.2 of Volume 1 of the UEIS. As to the remaining areas of social benefit, these draw heavily on other documents, including the AVKO market analysis from which a lengthy extracts are later taken in this section of our consideration. This socio-economic analysis document is, overall, at best, a secondary compilation document that relies heavily on other documents to support its comparatively brief analysis. In that context, it also appears to rely heavily on assumptions concerning the nature of the materials to be produced by the operation, assumptions that are now somewhat eroded as a consequence of the removal of sand production from the activities of the proposed quarry. This document was written in the early 2010 but, as with the Greenhouse Gas Assessment, we have set aside any matters that might arise as a consequence of the document not being contemporaneous with or tracking the evolution of the proposal, as we are now obliged to consider it.
308We extract the following material in full because we use this material, along with material from Mr Champion's affidavit, material from Mr Reed's Statement of Evidence and from the submissions in response on this topic by Ms Duggan, to draw a series of conclusions from the competing perspectives advanced by them.
309We now turn first to set out those matters for which we have been provided specific page references in . Taking them in the order set out by Mr Robertson SC, we commence with the material on page 51 of the UEIS;
Eire Contractors Pty Ltd recently undertook the earthworks and roadworks carried out in conjunction with the up-grade of the Evans Head Sewerage Treatment Plant and have indicated the following in letter dated 25 July 2007:
"We found that the material Champions Quarry supplied:
* Best suited to the environment. As a result minimum effort was required to put down (compaction) the material.
* We had a zero failure rate in our compaction tests of 98% standards which provided a dollar saving to our site team.
* Ideal to excavate trenches in for electrical and pipe work later in the project.
The product supplied by Champions Quarry was well suited to laying on top of the sandy material which often showed signs of high water table. The sandstone material provided to be ideal in this situation. "
310Then follows the materials referenced on pages 52 to 54 of the UEIS. These are in the following terms:
Local and sub-regional availability of sandstone material
Map No. 3 of Chapter 18 of Lismore City Council's Development Control Plan shows that there are no other commercial quarries located in the Tucki Tucki and Tuckurimba locality.
There are no other known approved quarries in the Lismore Local Government area extracting sand or sandstone material. The closest approved known sandstone quarry supplying similar product is the Broken Head Quarry at Suffolk Park Byron Bay. The Broken Head Quarry has a limited life remaining on the approved resource.
Regional availability of sandstone material
The NSW Department of Primary Industries (DPI) 2006 publication titled "Primary Industries in the North Coast Region of NSW Strategic Review" highlights the importance and key issues relating to production of construction materials in its administrative region comprising the area Laurieton in the south to Tweed Heads in the north and the Great Dividing Range to the west.
The DPI Strategic Review indicates construction materials are an 'essential supply of materials for maintenance and development of infrastructure including the Pacific Highway up-grade (notionally $2.2 billion over 10 years from 1996) and that the resource key issues are:
· "declining identified resource base
· declining access to resources
· sensitivity to transport costs and
· uncertainty over long-term sustain ability of supply".
The Review indicates construction materials are characterised by:
· "use in large volumes
· low unit cost and
· sensitivity to transport costs".
and that there are approximately 176 significant construction materials sites in the region that belong to 5 broad classes:
sand and gravel deposits - supplying coarse and fine aggregates (11 sites), construction sand (34 sites) and unprocessed road base (3 sites)
hard rock deposits - supplying rock products (8 armour stone, 2 flagging stone), course aggregate (30 sites) plus prepared road base (43 sites)
weathered/soft rock deposits - supplying unprocessed road base (27 sites) and unprocessed fill materials (2 sites)
friable granular rock deposits - supplying construction sand (3 sites) and unprocessed road base (6 sites) and
soil material deposits -supplying unprocessed road base (6 sites).
The Review further indicates that "cost and uncertainty in gaining consent is the largest single issue faced by the industry" and its viability.
The Review considers the future of extractive industries and suggests that:
· "The sustainability of construction material supply in the North Coast Region is problematic, despite abundant potential resources.
· Few existing sources of supply are naturally replenished, and therefore most sources would eventually be depleted.
· Many existing sources of supply will apparently exhaust their resources within the term of their existing development consents, which will generally be within a generation (20-25 years).
· Even with unlimited development consent, most existing sources would be exhausted within two generations (40-50 years), leaving only a few very large sources still active.
· Not all existing sources would be fully exploited and uncertainty of gaining additional development consent owing to land use pressures and environmental sensitivities in the North Coast and to provisions for third party appeals.
· Sensitivity to transport costs plus access constraints elsewhere will limit the feasibility of supply from neighbouring regions or distant parts of the North Coast.
· Population growth and development in the region are likely to maintain or increase demand for construction materials over time".
The Department of Planning Director-General's report (Feb. 2003) for the proposed Ballina Bypass - Pacific Highway Upgrade highlights the quantum of imported fill and construction material estimated to be required for that project. The Director-General's report suggests that 2,000,000m3 of sand and quarry materials would be required for filling and embankment works, of which 500,000m3 would needed to be imported from local quarries.
The Environmental Impact Statement (EIS) prepared June 2005 by Hyder Consulting Pty Ltd for the Woodburn to Ballina Pacific Highway Upgrade indicates that "the cut and fill balance is a major construction issue for sourcing material locally". The EIS indicates that the selected alignment option for Section 2 (Broadwater to Coolgardie) is a combination of Option 2C & 2E which is likely to require the importation of between 252,000m3 and 316,000m3 of fill material. Section 1 (Woodburn to Broadwater) and Section 3 (Coolgardie to Ballina) will require the importation of suitable fill material.
· The extent and suitability of the resource to be extracted is proven for the proposal and the on-going extraction of sandstone material from the lands for future generations potentially over the next 50 years.
· The resource is located immediately adjoining Wyrallah Rd which is a regional main road (MR 147) providing a direct haulage route to the major state road infrastructure projects such as the Woodburn to Ballina Pacific Highway Upgrade and other local and regional road infrastructure projects.
· The resource is located within an economic haulage distance of the major existing and future population centres of Lismore, Ballina and Casino.
311We now set out the materials referenced on pages 60 to 62 of the UEIS. These are in the following terms:
3.2.6 Number of Workers
The number of workers likely to be employed will vary, but up to 15 employees and sub-contractors might be used for product extraction, stockpiling and transport.
An employee has been nominated as the on-site manager who will be responsible for the safe operation of the extraction process.
Contractor trucks may also be used to haul the material to the various destinations in the local area.
312We earlier noted that the employment assumptions contained in the Socio-Economic Analysis are at variance with the employment levels that are postulated to flow from (and therefore be a public benefit of) the proposal. This proposition, taken from 4.5.2 of the UEIUS, provides a modest element of assistance to the applicant although the use of words such as "likely", "might" and "may" discounts this value somewhat as it is clearly couched in equivocal language. We have regarded this section, however, as a matter to weigh in favour of the applicant and given that, for regional population expansion reasons alone, any increased employment that could be derived from approval of the proposal might reasonably be regarded as additional to and not displacing of existing employment in such quarrying activities in the region.
313The material to which we are referred continues:
3.2.11 Conservation Areas
The ecological assessment by ERM and vegetation management plan by Idyll Spaces Environmental Consultants (refer to Volume 5) identify and show the location of the land supporting vegetation of a higher quality and ecological and visual significance.
The following generally describes the location of the conservation areas:
· Hoop pine dominated forest west of the existing quarry and
· Subtropical rainforest to the west and southwest of the lands in the 'southern section' proposed to be quarried.
The ecological assessment by ERM (refer to Volume 4) describes in detail the protection and management of the conservation areas in a biodiversity off-set strategy which compensates the removal of vegetation in the quarry footprint.
The areas within the lands to be quarried and on adjoining lands owned by the Proponent that have ecological and visual significance are not on land proposed to be quarried and are protected from disturbance by a covenant on the title created under s.88 of the Conveyancing Act. The management of these areas, together with associated buffer/setback area is described in the report by ERM (refer to Volume 4).
314Then follows the materials referred to on pages 104 to 107 of Volume 1 of the UEIS. The material is extracted below:
4.4.2 Consequences of not proceeding
The 'no go' and other options are not considered appropriate alternatives as they raise broader land use planning and local and regional economic development issues including:
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Note: 2009 figures are projected bases on 1.9% annual growth from 2006.
Note: Tweed Shire and Clarence Valley Council areas are excluded as they are outside the area of consideration because of cartage distances and other suppliers.
Based on the above numbers, the demand for sand and sand products in the Far North Coast Region, excluding Tweed Shire and Clarence Valley Shire, is currently approximately 470,000 t/a - 620,000 t/a
3.4 Market Segmentation
A typical market segmentation by area of customer activity for extractive industry operators in the market area is as follows:
* Local sales (non-account sales, COD)
* Manufacturers (concrete, asphalt, filter media)
* Re-sellers (landscape yards, trucking firms)
* Developers (subdivisions)
* Civil contractors (housing, commercial, major projects)
* Local Government (infrastructure, recreation)
* Others (agriculture, swimming pool filter sands, foundry sands, golf course sands)
3.5. Potential Markets for Champions Quarry
3.5.1. Distance to Potential Markets
Table 3.2 shows the distance to markets for a number of population centres from Champions Quarry within Lismore City Council, Ballina Shire, Byron Shire, Richmond Valley Shire and Kyogle Shire.
From To Distance
Champions Quarry Alstonville 25.6km
Champions Quarry Ballina 38km
Champions Quarry Broadwater 17km
Champions Quarry Byron Bay 66.5km
Champions Quarry Casino 35km
Champions Quarry Evans Head 26.8km
Champions Quarry Kyogle 64.4km
Champions Quarry Lismore 16km
Champions Quarry Woodburn 16.8km
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The following needs to be taken into account when considering the "maximum radius" for which sale of product from Champions Quarry is competitive:
* Product availability - is a similar product available in the required quantity within close proximity eg 15-30 km?
* The product value - is the product priced competitively for the distance it needs to travel? For example, haul distance is not an issue for dimension stone and boulders (worth $1800/load) which may be transported up to 250 km while fill and low value products may be limited to a 30-40 km haul distance
* Greenhouse Gas Emissions associated with transport.
Whilst Champions Quarry is within approximately 60 km of all of the above market centres, supply of low cost material will be concentrated on areas within a radius of 16-40 km of the Quarry. This will minimise the delivered cost of the product, eliminate local duplication of product into the market place and minimise Greenhouse Gas Emissions. The centres which Champions Quarry has identified for washed sand, premium road base and certified engineer fill are Lismore, Alstonville, Ballina, Casino, Evans Head, Woodburn and the upgrade of the Pacific Highway from Ballina to south of Woodburn. These are all within a 16-40 km radius of Champions Quarry.
Higher value products such as bricklayers sand, specialty sands and dimension stone can be sold into more distant markets at an economically viable price.
3.5.3 Potential Market - Roadbase and Engineered Fill
As has been stated in other sections in this report, the predominant quarry material available in the Lismore/Ballina Region is basalt. However basalt on its own, does not perform well as roadbase. Basalt is normally deficient in fines, lacks PI (a plasticity rating to bind it) and if it is present (as clay) it is normally reactive (wet and dry). The sandstone material found at Champions Quarry possesses all the qualities lacking in basalt.
In the Northern Rivers Region, the RTA has long endeavoured to overcome the difficulties of using raw basalt by blending with other quarry products. Recently the RTA has tested Champions Quarry sandstone roadbase and confirmed that if blended with basalt, it provides a premium roadbase which meets the RTA Northern Region Specifications for DGS and DGB roadbase.
Recently, Lismore City Council has commenced using Champions Quarry product for blending with their basalt from Blakebrook Quarry.
There are significant opportunities for the use of Champions Quarry sandstone material for both sub grade fill and for final grades of road base, on its own or blending with basalt for RTA specification works. This is particularly so in the Lismore/Ballina Region, now that Broken Head Quarry is not operational and had been a major supplier of this material in the past, and because of the increased emphasis on distance travelled and Greenhouse Gas Emissions.
Champions Quarry is also uniquely placed to provide Structural or Engineered Fill (AS 3798-2007) as confirmed by Coffey Geotechnics letter dated 23'd April 2007.
This provides enormous opportunities for Champions Quarry for building projects, Pacific Highway upgrades and similar infrastructure projects.
Volumes for the above projects will vary greatly from year to year however, the availability of this type of material is critical to the region, especially if Governments are keen to reduce Greenhouse Gas Emissions via shorter transport distances for major infrastructure and roadwork projects, and contain costs.
3.7 Competition for Champions Quarry
Figure 3.1 shows the location of Champions Quarry with respect to a number of other quarries in the region. The quarries shown in yellow are either basalt quarries (which are not detailed), or small sand and sandstone quarries or small existing use rights quarries with very limited output, several of these supplying filling sand as distinct from washed sand for the concrete and asphalt market. The three quarries shown in pink are quarries which are within 60 km of Champions Quarry and supply or are capable of supplying washed sand for the concrete and asphalt markets. These quarries are documented below.
Operational and Past Operational Washed Sand Quarries
Boral Sand Swan Bay - approximately 30,000 t/a. This material is extracted out of the Richmond River and is the amalgamation of three old river bed leases. This quarry supplies a significant amount of Boral's washed sand needs for their concrete batching plants. This product is wholly used by Boral. Due to the district's shortage of washed sand AVKO Mining does not consider the Swan Bay operations a threat because of the restricted annual volume and sole use by Bora!.
South Ballina Sand Quarry - 50,000 t/a. This quarry is operated by Bill Allen and was approved for 12 years under a Part 3A Variation in 2009 by the NSW Department of Planning. It is a limited resource of approximately 600,000 t. The quarry provides fine sand only for the concrete market, mainly in Ballina. Due to the district's shortage of washed sand AVKO Mining does not consider the South Ballina operation a threat because of the limited production of fine sand only.
Broken Head Quarry - Broken Head Quarry is currently in doubt. Broken Head Quarry has an approved annual production of approximately 140,000 t under its Consent No DA 97/0465 determined by the Minister of Planning in May 1999 and modified in April 2000. It had operated for many years prior to that as Batsons Quarry. In October 2008 Broken Head Quarry had an Order placed on it by the NSW Department of Planning to construct a major intersection on Broken Head Road by 31 January 2009 or cease operating. As the intersection has not been constructed, it is assumed that the future of the Broken Head Quarry is in doubt. This is unfortunate as this quarry provided washed sand for the concrete and asphalt plants in the region (approximately 30,000-40,000 t/a), roadbase, engineered fill and until 2007 was the region's sole supplier of bricklayer's sand. AVKO Mining does not consider the possibility of Broken Head Quarry reopening to be a threat because of the distance (60 km) away from Champions Quarry and the considerable need for washed sand in the region.
Other Sand and Sandstone Quarries
Several sand and sandstone quarries or existing use rights quarries exist in the region. They are not generally considered a threat to Champions Quarry as most of them only sell filling sand or very small amounts of other sand products.
Newmans Quarry 1 (Originally known as Robinsons Quarry) - 10 km south west of Woodburn. This quarry DA was approved by Richmond Valley Shire Council in 1997 for approximately 30,000 m3/a. The owners commenced illegally selling a large volume of bulk sub-grade fill material into the Ballina Bypass in 2007. The quarry had a shut down order placed on it by Richmond Valley Shire Council in 2008, which was not a good start to the Part 3A background paper which was lodged by the operators with the NSW Department of Planning on 17 October 2007. No Environmental Assessment (EA) has yet been lodged with the Department of Planning. The Part 3A will lapse unless the EA is lodged within 2 years of the background paper (now known as a Preliminary Environmental Assessment) being lodged. If the Part 3A process was recommenced on the above quarry, AVKO Mining does not see it as a major threat. The material is very hard dry sandstone, requires blasting and crushing for production, lacks PI and the property has no known water storage sites or approvals for dams for a sand washing plant. Accordingly the product probably would not produce certified engineered fill or bricklayers sand (because of a lack of PI) but could produce bulk fill to the Pacific Highway upgrade. The site suffers a disadvantage of cartage distance over Champions Quarry to the main Lismore/Ballina Region.
Newmans Jackybulbin Quarry Jackybulbin Road, Tabbimobile off the Pacific Highway. Comprises several old existing use right quarries granted amended consent by the Land and Environment Court in January 1999 to DA No 1997/111 (Maclean Shire Council) now Clarence Valley Council. Three separate areas with multiple cells interspersed over 880 acres, one area for 100,000 t rock PA and two areas for 100,000 teach PA for bulk fill and sand. Very complicated conditions of consent. Approximately 70 km south of Ballina, obviously cartage distance limits competitiveness in the Lismore/Ballina Region.
Lennox Head Sand Pit - small pit supplying filling sand near Lennox Head in a Potential Acid Sulphate Soil area.
AMA Sand Pit - small pit supplying filling sand near Lennox Head in a Potential Acid Sulphate Soil area.
Campbells Quarry Broadwater - small pit supplying filling sand.
Doonbah Quarry - small dredge supplying filling sand near Evans Head
3.9 Sustainability Issues
The proximity of Champions Quarry to Lismore means that truck haul distances of fill and road base materials are significantly reduced when compared to haulage from most other sources. For a truck and dog hauling material, the likely production of greenhouse gases is based on the truck fuel economy and the annual distance hauled. For Champions Quarry, it is assumed that 30 t capacity truck and trailers are used and these average 2 km/L and the emission of CO2 is 2.7t CO2-elkL
If, based on an annual production rate of 250,000 t/a, an average haul distance of 30 km was saved due to the closer proximity of the quarry to the markets, a total of 394 t of Greenhouse gases would be saved each year.
In addition, the energy (Bond Work Index) (BWI) or Crushing Work Index (CWI) required to crush the sandstone is significantly less than that for the local basalts. The CWI for the harder sandstone would be 40% or less when compared to basalt (fresh basalt would be 20 - 25 kWh/t and sandstone would be 10 - 15 kWh/t). In terms of concrete sands, natural sands or sands derived from sandstone make significantly better concrete sand than sands artificially produced from crushing rock because:
* The grains are generally less angular than manufactured sands and cause the concrete to flow better.
* Most authorities specify a maximum limit of manufactured sand in concrete blends.
* There is a significant amount of energy required to produce manufactured sands.
321It is also appropriate for us to reproduce the location map of regional quarries or other relevant resource suppliers that is included in the AVKO report and noted above (at 3.7 of the quoted material) as Figure 3.1. In doing so, we observe that the first Newman's quarry that was visited during the course the site inspection does not appear to be noted on this map.
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322During the course the proceedings, Mr Champion provided evidence by way of an affidavit and he was not required for cross-examination. Whilst Mr Champion's affidavit was not an admitted on any expert evidence basis (and a deal of it was not admitted as it was not relevant to the matters we are required to determine as part of the proceedings), he canvassed a wide range of matters of fact and opinion. In some instances, matters that he asserted to be fact, we agreed to accept not on the basis of their being proof of the fact so asserted but as to being his opinion as to the existence of what he asserted to be true. Some material was rejected as it involved prejudicial comments that were not relevant. We gave general rulings on the irrelevant and/or prejudicial material (with the agreement of the parties) as to go through the lengthy document on a word for word or sentence by sentence basis would have taken an unreasonable period of time in what had already become quite protracted litigation. However, to provide the proper flow of his material reproduced below, some of the rejected material must be reproduced (but redacted so the rejected element cannot be read) so that the acceptable sense can be appreciated.
323Some of the evidence that he gave clearly arose from his management of the quarry and his knowledge of what markets there were locally into which the product of the quarry could be sold or, equally, what he regarded as potential markets for the quarry's product (markets for which the quarry was not presently possible to be a supplier as a consequence of the quarry's product not meeting the relevant technical specification for such material). He gave a number of examples of these specifications. Although he also suggested motives of others have skewed the specifications to exclude his product, we accept his comments relating to his quarry's inability to meet the specifications but had rejected those relating to the motives of others concerning this.
324Whilst those opinions concerning motives of others that he expressed as to the reasons why the quarry was not able to meet those specifications and thus supply products into those markets were not relevant for these proceedings, we are of the view that the mere fact that the quarry's product cannot meet those specifications is a matter relevant for our consideration on the public benefit question. The relevant matters, noting the page of Mr Champion's affidavit from which they are taken, are in the following terms:
325The first of the material in Mr Champion's affidavit to which Mr Robertson SC has asked us to refer is that contained in paras 16 and 17. These are in the following terms:
16. I would like to give evidence in relation to our sandstone material and its importance to the Region. Most quarries in the Lismore - Ballina Region are basalt quarries which reflects the dominant geology. There are very few significant deposits of sandstone in the region. There is no other sandstone quarry other than Champions in the whole of the Lismore LGA of 1200 sq km.
17. Basalt is next to useless on its own as road base and that is why our local roads are falling apart, even within months of being rebuilt, because Lismore City Council [LCC] is using basalt from its own quarries instead of blending with sandstone from our quarry or elsewhere. LCC's basalt is excellent aggregate for the concrete market. It has an excellent CBR (strength), good shape and gradings. However, it lacks fines (without expensive re crushing for metal dust). It has no PI (plasticity index) unless they include basalt clays or volcanic ash, which then causes the roadbase to become reactive (shrink and swell in dry and wet conditions). By comparison, our material has a good CBR for sandstone, lots of fines, excellent PI and almost zero reactivity.
326The next material in the affidavit to which we are referred is in para 23 and is in the following terms:
Expansion Necessary
23. I would like to comment on one of the claims/assertions that I have often heard from our neighbour objectors to the effect that because our existing quarry is small it should stay that way. It has often been said that Champions is only a small outfit at present which means it doesn't have a lot of demand and therefore the expansion is not warranted. This fails to appreciate several things:
i. the current small size does not reflect the size of the resource which is enormous - Champions Quarry comprises a very significant resource - assessed with a potential about 11m tonnes by Coffeys.
ii. the existing operation is too small to fill any decent sized order such as occurs when hundreds of thousands of tonnes of road building material is required, for example if Wyrallah Road or any of the regional roads in the area that have reached the end of their expected life are re-built or if for example, a major upgrade of the Pacific highway occurs. A notable recent example has been the Alstonville by-pass where the material involving several hundreds of thousands of tonnes came from quarries ...[text redacted]... Champions Quarry has been unable in the last two years to sell considerable quantities for the Ballina by-pass [Pacific Highway upgrade] including one particular contract for 135,000 tonnes worth about $1.8m. We have also been unable to supply developments in Ballina for commercial and industrial development ...[text redacted]... quarries located at greater distances with consequences including greater Greenhouse Gas Emissions.
iii. Ballina is low lying and has a high water table and drainage issues are critical. The new draft Ballina LEP requires ground levels to be raised substantially in many areas. Most new development in Ballina requires large volumes of engineer fill and it must have high plasticity and be non-reactive i.e. sandstone.
327The next material in the affidavit to which we are referred is in para 25 and is in the following terms:
Advanced Planning & Sustainable Management
25. I must address the misconceived notion that what the Champions should do is exhaust the existing pit first before planning any expansion - that would be a foolish approach indeed and contrary to the Government stated goal of encouraging good advanced planning and sustainable management of the resource into the immediate and short term future. As a business manager, I have to plan ahead and I have to respond to economic factors. I am not a planning expert but the NSW Government brought in the Mining SEPP to achieve these things which are as follows and I will comment on:
(a) PROMOTE THE SOCIAL & ECONOMIC WELFARE OF THE STATE
My comment - The proposal will contribute to this.
(b) FACILITATE THE ORDERLY & ECONOMIC USE & DEVELOPMENT OF LAND CONTAINING EXTRACTIVE RESOURCES
My comment - The proposal will do this. The resource is of regional significance.
(c) ENCOURAGE ECOLOGICALLY SUSTAINABLE DEVELOPMENT THROUGH [RIGOROUS] ENVIRONMENTAL ASSESSMENT
My comment - This what the whole court case is about in my opinion. I am not an expert on these matters but I have faith in the experts and the court to make sure all environmental impacts are thoroughly and rigorously examined and appropriate checks and balance are put in place to manage the environment, responsibly and to a high standard.
I believe that the current proposal will result in an obvious reduction in Greenhouse Gas Emissions compared to comparative material at present hauled by road over much longer distances and from outside the Ballina - Lismore region.
(d) ENCOURAGE SUSTAINABLE MANAGEMENT OF EXTRACTIVE RESOURCES
My comment - Champions Quarry is an important regional resource of sandstone of limited comparable supply, which needs to be opened up to meet current and future requirements. Sustainable management requires forward planning approvals.
328The next material in the affidavit to which we are referred is in para 27 - second dot point and is in the following terms:
Compatibility with Adjoining Land Uses
27. I refer to the relevant Matters for Consideration under the Mining SEPP 2007 [clse 12] which I understand requires development applications to be assessed on the grounds of
· ............................
· The over-all public benefit.
329Then follows, addressing cl 12(b) of the Mining SEPP, the following:
(b) The public benefits of the proposal versus the public benefits of the status quo [existing, approved and likely preferred future land use].
My comment - The Department of Planning has determined that the sandstone resource at Champions Quarry is of Regional significance, as part of its Part t3A assessment for further extraction. The same applies to this EIS DA, for reasons already discussed relating to lack of comparable product in the area, shortage of supply of sandstone road base and sandstone value-added products, and its importance for enhancing basalt which is plentiful but fails on its own. Champions Quarry has a significant regional resources of sandstone at its disposal which is required to be extracted to meet orderly current and future growth and reduce dependence on material which otherwise is to be trucked from outside the area, increasing the costs and Greenhouse Gas Emissions.
330We observe with respect to this comment by Mr. Champion that we have no evidence of the Department of planning is assessment outcome for the Part 3A application and we take his statement concerning the Department of Planning's assessment as merely to be his belief of what the Department has determined on that application. However, whether or not we are correct in this assumption, this is not a factor of any significance in our overall conclusion and has not been relied upon in reaching our conclusion concerning whether or not the public benefits outweigh the environmental impact of the proposal.
331The next extract to which we are referred is that immediately below (being an expression of Mr Champion's opinion that is of no assistance to us in the public benefit balancing we are required to undertake).
Economic & Financial Factors
28. As a former Mayor of Lismore City Council and as a person who knows many business people and tradesmen in the area, I have observed the local economy in action over many years. I consider that for the Lismore area to grow and sustain jobs, there needs to be an increase in supply of required resources such as the sandstone products proposed.
332Finally, we are referred to what Mr Champion says in paras 39 and 40. These are in the following terms:
39. In relation to the development being refused by LCC as it was not in the public interest, Council employed Pamela Westing to review LCC Planning Department in general and in particular the CQ DA and a couple of major rezonings. In the case of Champions Quarry, Ms Westing advised that the issue of public interest should always be taken to mean the broader public interest and not just the interests of a small number of disaffected people. Ms Westing was not critical of the process by which Council staff assessed the project and their recommendation for approval. She was only critical of the misplaced reliance by a majority of the councillors on neighbour objections as representing the public interest.
40. I would like to point out that if the public interest is measured by the amount of support or opposition to the proposal, a survey reported by the Northern Star newspaper on 9 September 2010 showed 73% of those polled agreed that 'Tucki will benefit from the Champions Quarry.'
333There are four observations that should be made with respect to some of the material to which we have been referred that is reproduced earlier in the extracts from Mr. Champion's affidavit. First, the comment concerning the internal processes of the council taken from an external commentary and referred to in para 39 of his affidavit canvasses matters that are irrelevant to our assessment. Our assessment has been an entirely fresh assessment, evidence-based, as we are obliged to carry out under the law.
334Second, his comment concerning public approval of the proposed quarry (para 40), even if accurate - a matter about which we need make no determination - is also entirely irrelevant as a matter for our consideration as to whether or not there are public benefits of the proposal.
335Third, as we earlier indicated, a deal of the material contained in Mr. Champion's affidavit (as it ended up being admitted as evidence in the proceedings) was taken on the basis that he was expressing opinions rather than as evidence of the truth of the facts that were contained in them that were necessarily speculative (as opposed to factual matters within his personal knowledge of which there are some as we acknowledge in our later commentary on this material). Mr. Champion's evidence was also not admitted on the basis of it being expert evidence but on the basis of it being lay evidence. As a consequence, where there are differences of opinion, to the extent that it might be relevant if there were such differences of opinion, between opinions expressed by Mr. Champion and those expressed by expert witnesses, we consider it appropriate to defer to and accept the opinion of the relevant expert in such instances.
336Finally, in any instance where Mr Champion's opinion is also supported by the opinion from expert witnesses giving evidence on behalf the applicant and those opinions are contested by expert evidence given on behalf of the council, it is appropriate for us to consider and weigh the conflict between the experts in reaching what might have been any necessary determination on such differences. Given the vast volume of material with which we have needed to deal, these comments are, of necessity, made at this level of generality as it is not possible, even in a document of the length of this decision, to deal with those matters in any precise, enumerated fashion.
337Mr Reed criticises [Exhibit 45 at 18.20(xi) and (xii)] the AVKO report for not having regard to the Newman Quarry resource as an alternative source of supply.
338At 18.23 in Exhibit 45, he also says:
Given that I don't believe that the production and sale of washed concrete sands can be achieved in an operationally, environmentally and/or commercially viable manner, this would mean that the quarry would principally continue to operate as a source of low value, ripped sandstone with substantially less than 30% of production and sales being processed materials. Under these circumstances the major market opportunities will be one-off projects, such as providing fill to Pacific Highway projects. However, there is no guarantee whatsoever that any material would be supplied to that project.
339This comment must be considered in the context where the applicant does now not pursue sand production in this proposal.
340Although Ms Duggan did not produce written submissions on this point (as we had indicated that we did not wish to receive written submissions), a close reading of the transcript of her closing submissions makes it clear to us that she regarded the question of whether or not there was a public benefit for the purposes of cl 12 of the Mining SEPP was inextricably linked to the resource recovery issue also raised, separately, by cl 15 of that SEPP. As a consequence, to understand the nature of the analysis that we have made of whether or not there are public benefits that outweigh the adverse impacts already found to exist, we reproduce, in its entirety, what we considered to be the relevant extract from her closing submissions for our consideration on the public benefit issue. The submissions were in the following terms and include, for completeness, exchanges with us during the course of this element of her submissions:
The first of the matters which I wish to address you on is the issue of quarry management and resource recovery. It's worth remembering that in relation to the SEPP you are required as a mandatory relevant consideration to consider resource recovery under cl 15 and you must consider the efficiency or otherwise of the development in accordance to resource recovery and "you must consider wether or not it should be subject to conditions aimed to optimising the efficiency of resource recovery and the reuse or recycling of material and you must be satisfied that the development will be carried out in such a way as to optimise the efficiency of recovery of minerals or extractive materials and to minimise the creation of waste in association with extraction recovery or processing of minerals, petroleum or extractive materials." So they're the mandatory considerations.
This is also a designated development application and in the context of the designated development application the applicant is required to provide for information over and above the information which would have generally accompanied a pt 4 application for development consent for non designated development.
One of the matters which the EIS is required to consider and one of the matters which the court is required to consider in determining the appropriateness of the development are things like justification for the proposal, alternatives to the proposal including the do nothing alternative, and the efficiency of the proposal. What the applicant says, and when you look at this list--
SENIOR COMMISSIONER: I should say I only found it because it had been uploaded to e-court. It has not been filed as I understand it, it has only been lodged electronically.
DUGGAN: We didn't get a communication either on my instructions, but anyway.
SENIOR COMMISSIONER: The same position applies let me say with respect to the applicant's submissions about 97B and the applicant's submissions on road funding.
DUGGAN: I've got both of those.
SENIOR COMMISSIONER: All three of those documents were uploaded to e-court. If there are more documents they've not been uploaded to e-court, and to the best of my knowledge and belief they have not been filed. I just found them because on Tuesday morning I was wondering where the things were that were supposed to be there by 4.30 and I found them I think late on Tuesday, they were put on e-court on Tuesday.
DUGGAN: We didn't get them on Monday either but I think we got them about the same time as you, but it didn't include this information. What the applicant seems to be saying is in relation to resource recovering, this is a big positive, and this is a big positive and it's in fact such a big positive that it is able to outweigh any adverse impact that flows from the quarry. The proposition which is put is that this is a State significant resource and that this State significant resource must under all circumstances be extracted from the ground and, by the way, in doing so we also employ 15 workers including casual contractors, and that is in the public interest. Commissioners, that proposition needs to be considered quite carefully. It is fair to say that the applicant has provided for a market assessment of the proposal to demonstrate that there are markets for the materials which they propose to extract, and that market assessment is in the Avco report prepared by Mr Robertson, that is Mr Robertson the quarry person, and the Avco report is in volume 6 of the EIS and it's the last tab. The Avco report is in effect the sole justification for the--
SENIOR COMMISSIONER: Sorry, which tab was it again, the last one?
DUGGAN: I think it's the last tab.
SENIOR COMMISSIONER: 38?
DUGGAN: It could be.
SENIOR COMMISSIONER: No, tab 33.
DUGGAN: Sorry, I've taken mine out of the folder, I didn't like the tab number.
SENIOR COMMISSIONER: Dated 19 August 2009.
DUGGAN: Yes. There are a number of things that need to be observed in relation to this. The first is that it's a document prepared in relation to the part 3A application and that is apparent from the page (i) in the first paragraph under the executive summary. You'll see from the last line of that first paragraph that the rate of extraction is in fact greater under the part 3A project than under the current project, and you know from what you were told by the applicant, although there's very little evidence of it, that the areas of mining in relation to the part 3A application were different from the areas of mining under the part 4.
SENIOR COMMISSIONER: I think we only have that evidence with respect to the southern extraction area.
DUGGAN: You have on my recollection an acceptance by Mr Robertson that that is the fact, but nobody has ever given you anything.
SENIOR COMMISSIONER: I understand that, but there was a discussion from my recollection during the course of the walk round the southern extraction area that the difference was described effectively as the totality of the hill disappears as opposed to the more southern rim, but I do not understand that we were ever told there was any difference for the central and northern extraction areas.
DUGGAN: Without that knowledge it's very hard to assess whether or not this market assessment is useful at all, because what it does is it's assessing a market for a significantly greater amount of extraction from different parts of the site. What we know is that the different parts of the site have different qualities of extractive material, and what we also know about this Avco report which is fundamental to the assessment of the market is that it was predicated upon the proposition that the applicant would be able to produce washed sand which was a resource which was of limited supply in the Ballina area. You'll recall, Commissioners, that the applicant has removed from this application the provision of washed sand, so this report in relation to market analysis bears no relationship to that which is now proposed in the application.
If you go to p 5, you'll see that it says, this is under para 3.2, "The resource at Champions quarry is extremely important and unique to the region for the following reasons," and what it does is effectively deal then with the provision of sand, that being no more the application before you. In relation to the balance of the products, it speaks about providing for engineered fill and general fill, and what we know from the evidence of Mr Carr is that looking at the Coffey bore logs, this type of resource is unlikely to be able to be used for engineered fill. It would need to be blended with other products which are not extractable from the site.
That seems to be accepted by Mr Robertson insofar as he acknowledges that at least for road base - this is on p (ii), the second dot point on para 5 - in order for it to be used for road base, it needs to be blended with basalt which needs to be imported to the site. In relation to it being available for the provision of topsoil, I understand my recollection is that the applicant has not yet determined the quantum of topsoil that would be required for rehabilitation, and the only topsoil that can leave the site is topsoil that is not required for that purpose, and therefore one cannot determine if there is any market for that type facility. Really what's left is landscaping boulders and some aggregate products from the high strength sandstone layers which I'll come back to in a moment, and those items are not identified as being items which are in short supply in the local government area.
The additional matter that needs to be recognised in relation to the Avco report is that the Avco report discounted the market input of the two Newmans quarries on the basis that the quarries were operating other than in accordance with the counsel consent or that the council was taking action, and that's apparent from p 12. So there is real doubt, Commissioners, in relation to whether the proposal that is before you has a resource that is as important as the applicant keeps saying it is, because the Avco report is based upon parameters which are different from the application before you and identify market demand in relation to particular products which are not available, or no longer proposed to be made available from the Champions quarry.
In relation to the issue of resource recovery and the efficiency of resource recovery, we then need to throw into the mix the fact that this land has within it high strength sandstone. Again that's acknowledged by Mr Robertson and in fact is one of the identified market resources. That's the aggregate that he says is a matter which the Court must take into account. In relation to that issue, there is no doubt when one looks at the Coffey bore logs that present on this site is high strength sandstone. There is no doubt when one looks at the Coffey logs that in relation to the central extraction area, the applicant has not yet hit high strength sandstone.
The evidence of Mr Reid is that one cannot rip in the manner which the applicant proposes high strength sandstone. What one would need to do is to extract it by some other means. The applicant has said we might get some sandstone that we can't rip, we'll use a rock saw or a rock hammer, and the evidence of Mr Reid is that you really need to know a lot more about the rock to see whether those two features would actually achieve what the applicant says it will, that in fact a rock hammer or a rock saw could be equally as inefficient or un-useful as the ripper on a bulldozer.
That issue becomes particularly stark in the southern extraction area because the applicant has in fact done no bore in the area in which they're proposing to excavate. Rather, they're relying on guesswork from two disparate boreholes adjacent to the extraction area, and unless you know where you're going to encounter this hard rock and how hard it's going to be, the Court has no way of being satisfied of the mandatory consideration which the SEPP imposes which is that the extraction of the resource will be efficient.
It's often the case that people say all I need to do is to work out from a planning perspective whether or not this development is okay and if an applicant goes financially bankrupt in the process, that's a matter of choice for them, for that may well be the case in relation to some applications, but in relation to this application the Court must consider--
SENIOR COMMISSIONER: Yes, we have to consider but we don't have to be satisfied. They are matters that have to be put on the weight but it does not - if we are not satisfied that it is efficient, that is simply a matter that goes on the sales is it not? It doesn't create a gateway.
DUGGAN: No, it doesn't create a gateway but when you look at the SEPP and the aims of the SEPP and remember that the applicant is waving this SEPP as the holy banner that's going to get it through the gates of Jerusalem. What we need to do is we need to understand that in relation to the aims of the policy the proper management and development of extracting mineral resources and the orderly and economic use of development of land containing those resources is a matter which the mandatory considerations are seeking to achieve.
All I am saying is in normal circumstances where it wasn't designated development and it wasn't an extractive industry to which the SEPP applied those types of considerations could quite properly be put to one side but by the provisions of cl 15 they can no longer be put aside because the concern is that if it's inefficient the resource won't come out and the goal which it is appropriately located is that the resource comes out and in relation to cl 15 it has been on the table since day one that the applicant has just not done enough work to justify its assertions that the resource can be extracted in the manner which is proposed and if it's not capable of being extracted in the manner that's proposed it has on flow effects. How can you be sure that the rehabilitation will happen? It's not going to look like what the applicant's rehabilitation plan says. How do you know it's going to only have an impact on the objectors and the neighbours for the period of time which the applicant says it will? So, the life of the quarry may not provide for the extent of resource which you're asked to weigh into the scales as being a positive.
So the purpose for this, Commissioners, is to understand that when the applicant waves this list of positives to the Court and says, well, this should overcome all of the impacts on the public because these are all the positives one needs to understand that the positives aren't yet positive because the applicant has failed to do enough work to satisfy you that the resource is able to be removed in the quantum that it says it will, in the period that it says it will, with the effects that it says it will.
SENIOR COMMISSIONER: It's my understanding of Mr Reid's evidence that that went effectively, except possibly with respect to matters of rehabilitation, that that went to extraction from the southern extraction area,
DUGGAN: His primary focus was the southern extraction area, I accept that.
SENIOR COMMISSIONER: I did not understand Mr Reid to be saying again setting aside the question of slope angle for rehabilitation that it was not possible to quarry either the central extraction area or the northern extraction area.
DUGGAN: In relation to his statement of evidence which is exhibit 45 he deals with the issue of the quarry as a whole and he notes, if you go to his conclusions at para 19, "The proposed extraction...with the amended EIS" and that relates to the totality of the quarry. The applicant insofar as they have sought to respond to Mr Reid have focused on the southern extraction area but they haven't addressed the similar concerns in relation to the northern and the central. Mr Reid's oral evidence was that once you get in the central extraction area you can expect to hit this very hard strength sandstone. It hasn't happened yet because the area that they are extracting is above the area in which that layer will be likely met but in order to extract down to get the central extraction area to the level proposed, in order to provide the facilities that are needed the question of rippability arises.
So whilst the applicant's focus has been on the southern extraction area and therefore by dint of that Mr Reid's later evidence his evidence is that it's the totality of the extraction because the applicant just has not done enough work and, as I said, it is highlighted by the manner in which the applicant has done the bore holes the southern extraction area, it is not exclusive in the southern extraction area.
341After extracting and presenting the relevant material, we commence our analysis of this question of public benefit by restating, briefly, the nature of the material proposed to be produced from the expanded sandstone quarry for which approval is sought in these proceedings. The quarry is to have a life of some 20 years and, over this period of time, is intended to produce material at an average rate of about 200,000 tonnes. The derived employment value of the project is such that it will mean, with employees and contractors, a modest addition to the local employment market with the usual attendant multiplier effect derived from such employment. The products that are proposed to be produced will be some boulders for landscaping and some fine crushed materials but, predominantly, the material that will be produced will be used for construction fill or for road base.
342Having considered what we appreciate to be starkly contrasting positions between the parties on whether or not there is any public benefit in permitting the project to go ahead and override the adverse impacts on a more localised basis, it is appropriate to set out what we consider to be the relevant factors for us to take into account on this issue. They are:
The proposed quarry extension would provide access to a significant volume of sandstone material of various types over a 20 year period;
The present quarry and its proposed expansion are, currently, the only source of sandstone within the Lismore local government area;
There are other quarries within the region (including the Newman quarries that were inspected but not exclusively these quarries) that provide sandstone material into the relevant regional markets including into the Lismore local government area;
Although we accept that the material quarried from these other sources, taking the applicant's case at its highest, is not of the same general composition of the material available from this sandstone resource, nonetheless it is substitutable for the this sandstone product in the various applications to which it is applied;
There are significant further available resources of this nature available to be quarried at at least one other location that currently sells comparable product into this market - that being the second of the Newman's quarries visited during the site inspections;
Although the proposal for this proposed quarry expansion originally included a proposal to produce sand materials as referred to by Mr Champion in his affidavit, the final version of the proposal does not include supplying such a market. Although Mr Robertson SC, in his final submissions, put the proposition that such material might be capable of being provided direct from this quarry at some future time or from some off-site crushing activity utilising materials sourced from this quarry, there is no such proposal contained in this development application and, as a consequence, to have regard to the possible supply of any such product would be mere speculation and is to be disregarded in its entirety;
The present quarry operation has missed out on contracts for the supply of road base material to the Roads and traffic Authority (RTA) including a significant contract cited by Mr Champion in his affidavit. Whatever might be the reasons why this quarry did not obtain that contract is not a matter upon which we need to make any observation but it is relevant to demonstrate to us that there is, self-evidently, at least one alternative source of supply capable of fulfilling a contract of that nature;
Although we accept that the range of specifications for blended road base materials include specifications that include sandstone material such as that capable of being sourced from this quarry, there is no evidence that any element of that specification (such as a nominated CBR) can only be sourced, preferentially, from material that would come from this quarry. Indeed, the fact that other material is capable of being used for such purposes and, therefore, can be assumed to be consistent with one of the four nominated regional road base specifications demonstrates that there are appropriate alternative sources of supply for materials required for these purposes;
The evidence given on site at the second of the Newman's quarries visited, by that company's representative, demonstrates that that quarrying company considers that its material is capable of being supplied into relevant markets to which the material from this proposed expanded quarry would be addressed. His evidence was that, contra the 2009 AVKO comments concerning the future resource availability of this quarry, was that significant sandstone reserves were available from that site. During the course of the inspection of this quarry, the larger of the two Newman's quarries visited, we were shown substantial stockpiles of material said to be of an appropriate nature to be supplied for RTA road construction contracts. None of the quarry management experts present during the course of this site inspection disputed the nature of the use to which this stockpiled material was capable of being put;
[53]
Ameliorative measures [cl 12(c) of the Mining SEPP]
347We now turn to consider those matters that arise for consideration under cl 12(c) of the Mining SEPP as ameliorative measures proposed by the applicant and, in addition, any further ameliorative measures that we might impose consistent with the "amber light" approach to development assessment earlier discussed.
348The visual and acoustic amelioration measures that are proposed to be undertaken on the site have earlier been discussed in considerable detail - as have the consequences of giving effect to them. We also accept that sufficient ameliorative measures dealing with water quality issues could be dealt with by the imposition of appropriate conditions of consent. As is discussed below in the context of cl 17 of the Mining SEPP, we are satisfied that necessary conditions of consent could also be imposed to ensure appropriate long-term progressive rehabilitation of finalised portions of the quarrying activity (including, at what would be the conclusion of rehabilitation of the southern extraction area at its completion, of the removal of the trees planted to protect the outlook from the White residence and, as earlier discussed, adversely impacting on the long term outlook from the Wadsworth residence).
349All of these ameliorative measures are the ordinary and expected measures that would be required as conditions of approval for a proposed development of this nature.
350However, we are of the opinion that the proposed rainforest revegetation areas that have been designated as a consequence of the agreement between the ecologists fall into a different and more beneficially referable category. Whilst, undoubtedly, desirable as an offset to the risk of impact along the areas around the northern and eastern escarpments of the southern extraction area, we consider that the extent and nature of these revegetation areas (when compared to the extent and nature of the degraded landscape for which they are to compensate), shows that this is a positive ameliorative benefit rather than merely a minimum responsive and necessary requirements to gaining possible approval.
351Similarly, although the extensive screen planting that is to incorporate koala food trees is necessary to avoid adverse visual impact from various viewing points, we are also prepared to conclude that obtaining the benefit of these additional koala food sources for the identified (and, indeed, observed by us) local koala population is an added ecological benefit going beyond merely a visual amelioration response that would otherwise be required of the proposal.
352We are therefore satisfied that, arising from activities that would be undertaken in on the site, there would be some further modest public benefit to be derived from these ameliorative measures that would need to be considered in addition to the modest public benefits that we have described pursuant to cl 12(b) of the Mining SEPP. Indeed, as we discuss a little further later in this decision, there is an element of overlapping and, certainly, of accumulation of the benefits to be taken into account pursuant to cll 12(b) and 12(c) of the SEPP.
353In addition to these on site ameliorative and additional benefits, it is appropriate for us to consider whether or not there are off-site ameliorative benefits that should be weighed in our assessment.
354We are satisfied that there are two such benefits that go beyond the availability of product of the nature proposed to be supplied by the expanded quarry. The first of them is the question of provision of warning signs and, possibly, minor associated roadworks, at a number of informal pick up and set down points for children travelling to or from their schools by bus along Wyrallah Road. The provision of these facilities was agreed to by the applicant during the course of a site inspection of several of these locations.
355As a consequence, provision of these facilities disappeared as an issue in the proceedings. It therefore followed that, in our assessment of the acceptability or otherwise of the proposal, we did not need to form a view about their provision. However, in this phase of our consideration, we do consider that it is appropriate to have regard to the agreement to provide these facilities and to whether or not that proposed provision should add to the public benefit to be derived if the proposal were to go ahead. We are satisfied that there is such a public benefit.
356Despite the fact that we did not need to reach a conclusion in the earlier process we have undertaken, we are of the view that, on balance, we might not have required the applicant to provide those facilities that the applicant has volunteered. As a consequence, although we do not need to explore this in detail, we are satisfied that we should add the provision of these facilities as additional public benefits counting in the applicant's favour.
357The other area of off-site benefits that would be obtained as a consequence of approval of the proposal would be the reconstruction of the two presently unsatisfactory intersections that were discussed earlier relating to road issues.
358Although we set out, there, the reasons why it was not necessary to determine questions of financial apportionment that should be mandated to the applicant if the proposal were to be approved, there is an undoubted public safety benefit to be obtained from the reconstruction of these intersections. Whatever public benefit that would flow from an apportioned contribution to the reconstruction of these intersections to take account of increased truck movements as a consequence of approval of this quarry would be an ordinary and expected consequence expected to flow from a project approval. However, the present unsatisfactory nature of these intersections was self-evident, as earlier noted, from the observed unlawful and unsafe turning of a large articulated vehicle (unrelated to this quarry) using one of those intersections.
359As we observed during the closing submissions those of the proceedings, in our opinion, it is appropriate for us to consider whether there would be additional public benefits to be derived from the ameliorative measure of reconstruction of these intersections by requiring the applicant to meet a greater proportion of the costs of that reconstruction in order to obtain a countervailing public benefit for the purposes of this assessment pursuant to cl 12(c). We consider that, consistent with the "amber light" approach, this is the sole area where we might contemplate imposition of a further amelioration measure beyond that which would necessarily arise from the strict impact of the development itself in order to provide an additional ameliorative public benefit that might render the overall proposal acceptable.
360In this consideration, we also acknowledge that to do so might well offend against the Newbury tests (see Newbury District Council v Secretary of State for the Environment [1981] AC 578) for the appropriateness of conditions to be attached to a development consent, in light of the conclusion that we have reached, it is unnecessary to undertake such an analysis.
361We have considered this matter on the basis that assessing the possible benefit at its highest, we might have required the applicant to meet the totality of the cost of reconstruction of both of these intersections in order to maximise the public (safety) benefit assessment in the applicant's favour. Even if it were permissible for us to do so, we do not consider that this additional public benefit, when added to the cl 12(b) public benefits and those additional public benefits that should be counted in the applicant's favour for the reasons earlier described in this cl 12(c) assessment provide a sufficient balance to the severity and extent of its adverse impacts.
362Indeed, although reconstruction of these intersections is necessary on a precautionary basis, we do not understand there to be any significant (or, indeed, on our notes, possibly any) accident history at either of these intersections that would make their reconstruction anything more than a prudent precautionary approach to take to the additional truck traffic likely to be generated by the quarry. Whilst reconstruction of the intersections would also provide safety benefits with respect to other vehicles already using them, this is also a benefit dictated by prudence rather than by accident history.
363As a consequence, although there are some identified additional ameliorative benefits and further such benefits possibly capable of being imposed on or volunteered by the applicant, we do not consider, taking the totality of these at their highest for the applicant, that these benefits can go close to outweighing the adverse impacts of the proposal to which we have earlier referred.
364At this point, although they are dealt with in succeeding sections of this decision, we note, here, in the context of our overall conclusion, that there are no matters pursuant to cll 14 to 17 of the Mining SEPP that act as either benefits for or detriments to the proposal. Although, for the reasons set out, we have undertaken the necessary assessments and concluded that there is nothing arising from these clauses that would prevent approval of the proposal, we believe there is nothing there set out that would add to the reasons why it ought be approved.
365As a consequence, therefore, at the conclusion of our assessment following the mandated steps of cl 12 of the Mining SEPP, there remains a series of significantly adverse impacts of the proposal that are not outweighed by all possible benefits to be obtained from it. As a consequence of those conclusions, it follows that the proposal must be rejected - and rejected on a number of separate (and each sufficient) bases.
[54]
Consideration of cl 14 of the Mining SEPP - Greenhouse gasses etc
366The Mining SEPP requires us to give consideration to three matters relating to natural resources. The provisions of the clause are set out below. Before setting out its terms, we observe that the first two elements of cl 14 have already been addressed elsewhere in this decision. With respect to the question of surface and groundwater matters, as earlier discussed, these are capable of resolution, should it have been necessary to do so, within the range of options about which Mr Bishop and Mr Carr gave evidence. With respect to the broader biodiversity and ecological issues, those have been resolved by the relevant experts and an appropriate preventative and compensatory regime settled by them.
14 Natural resource management and environmental management
(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following:
(a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,
(b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,
(c) that greenhouse gas emissions are minimised to the greatest extent practicable.
(2) Without limiting subclause (1), in determining a development application for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider an assessment of the greenhouse gas emissions (including downstream emissions) of the development, and must do so having regard to any applicable State or national policies, programs or guidelines concerning greenhouse gas emissions.
367The terms of this clause of the Mining SEPP calls up three topics for consideration. The first two of them, water issues and ecological issues, are dealt with elsewhere in this decision. As noted in those sections, we are satisfied that, first, the ecological issues have been resolved by the agreement that has been reached by the experts for the applicant and the council on these topics, and, second, with respect to water issues, had we needed to determine them, we are satisfied that they can be appropriately addressed. As a consequence, for this element of our assessment process, we do not need to detain ourselves further on those two matters in our assessment process pursuant to the Mining SEPP.
368The third topic called up by this clause relates to greenhouse gas emissions including downstream emissions, that are directly or indirectly a consequence of the quarrying activities.
369The applicant has produced a greenhouse statement that was tendered as part of the material in support of the application. Given our overall conclusion on the unacceptability of the project on a variety of grounds, we do not need to analyse this matter in detail, as it is unnecessary in our opinion to go beyond the material set out in the applicant's statement. However, as earlier noted, this statement is barely sufficient for us to be satisfied that this statement could be regarded as satisfying cll 14(1)(c) and (2).
370We make one first, brief observation, however, concerning greenhouse gas emissions. Although this is an extractive industry operation, the material that is being quarried, sandstone, is an inert material and, as a consequence, such downstream emissions as might possibly be occasioned will come from activities associated with the use of the material. This is in distinct contrast to the extractive industry of mining coal where the downstream emissions will come, in a major part, from the burning of the product itself rather than from its use in some other form such as the construction fill application for which the vast bulk of the material proposed to be produced from this expanded quarry would be destined.
371In addition, we also observe that, absent a full lifecycle assessment of the sandstone materials produced (from the commencement of the extraction process through to the finality of the activities associated with its use) and similar lifecycle assessments for any substitutable products (such as blue metal or sandstone from competitor quarries), we are unable to consider whether or not the greenhouse gas emissions associated with the proposed quarrying activities at the site would compare favourably with potential substitutable materials.
372We certainly consider that it would be inappropriate to require such studies to be undertaken by the applicant given the inert nature of the material and the inevitable likely modest, in our intuitive assessment, differences that such studies would be likely to disclose. We consider that the greenhouse gas statement tendered by the applicant in these proceedings is a sufficient response for us to consider in satisfaction of this portion of this clause of the Mining SEPP.
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Consideration of cl 15 of the Mining SEPP - Resource recovery
373Clause 15 of the Mining SEPP requires us to give consideration to issues contained in it concerning optimisation of the efficiency of resource recovery and minimisation of waste associated with such activities. The provision is in the following terms:
15 Resource recovery
(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider the efficiency or otherwise of the development in terms of resource recovery.
(2) Before granting consent for the development, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at optimising the efficiency of resource recovery and the reuse or recycling of material.
(3) The consent authority may refuse to grant consent to development if it is not satisfied that the development will be carried out in such a way as to optimise the efficiency of recovery of minerals, petroleum or extractive materials and to minimise the creation of waste in association with the extraction, recovery or processing of minerals, petroleum or extractive materials.
374Although Ms Duggan was critical of elements of the resource recovery aspect of the proposal, as set out in her submissions earlier extracted as part of our cl 12 assessment, we do not consider that anything arises out of them that would warrant us drawing any adverse conclusion of any nature against the proposal on the basis of this provision of the SEPP.
375Although she criticised the now absence of sand extraction and washing as part of the final proposal we are assessing, we do not consider that the absence of such a process can weigh against the application. It seems to us that the non-pursuit of such an element, whilst it might have led to greater resource efficiency had it been approvable, does not lead to a countervailing inference that its absence demonstrates inefficiency. Rather, we accept that its absence should be regarded as a reflection of the underlying constraints on the site to accommodate an activity of this nature within the present proposal.
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Consideration of cl 16 of the Mining SEPP - Transport
376Clause 16 of the Mining SEPP requires us to consider the nature of the trucking activities that would be consequent upon approval of expanded quarrying activities. The provision is in the following terms:
16 Transport
(1) Before granting consent for development for the purposes of mining or extractive industry that involves the transport of materials, the consent authority must consider whether or not the consent should be issued subject to conditions that do any one or more of the following:
(a) require that some or all of the transport of materials in connection with the development is not to be by public road,
(b) limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools,
(c) require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads.
(2) If the consent authority considers that the development involves the transport of materials on a public road, the consent authority must, within 7 days after receiving the development application, provide a copy of the application to:
(a) each roads authority for the road, and
(b) the Roads and Traffic Authority (if it is not a roads authority for the road).
(3) The consent authority:
(a) must not determine the application until it has taken into consideration any submissions that it receives in response from any roads authority or the Roads and Traffic Authority within 21 days after they were provided with a copy of the application, and
(b) must provide them with a copy of the determination.
(4) In circumstances where the consent authority is a roads authority for a public road to which subclause (2) applies, the references in subclauses (2) and (3) to a roads authority for that road do not include the consent authority.
377We are satisfied that to the extent necessary, we have comments from the relevant road authorities. We are also satisfied (subject to determination of road issues earlier described) that there are no issues arising for further consideration in response to this provision.
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Consideration of cl 17 of the Mining SEPP - Rehabilitation
378Clause 17 of the Mining SEPP requires us to consider the nature of and appropriate prospects for rehabilitation of the site at the conclusion of its useful quarrying activities. The provision is in the following terms:
17 Rehabilitation
(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring the rehabilitation of land that will be affected by the development.
(2) In particular, the consent authority must consider whether conditions of the consent should:
(a) require the preparation of a plan that identifies the proposed end use and landform of the land once rehabilitated, or
(b) require waste generated by the development or the rehabilitation to be dealt with appropriately, or
(c) require any soil contaminated as a result of the development to be remediated in accordance with relevant guidelines (including guidelines under section 145C of the Act and the Contaminated Land Management Act 1997 ), or
(d) require steps to be taken to ensure that the state of the land, while being rehabilitated and at the completion of the rehabilitation, does not jeopardize public safety.
379As we have earlier indicated, there is a difference between the relevant experts for the parties about the appropriateness of the rehabilitation measures, particularly the final resulting average slope that should be required for rehabilitation.
380However, as we understood the totality of this evidence, there is not a dispute between the relevant experts as to whether or not it would be possible to rehabilitate, on a progressive basis, the proposed expanded quarry if it were to be approved. The disagreement is confined to a comparatively narrow range of functional options concerning the method by which such rehabilitation should be achieved. Given that we have determined that the proposal should be refused for other reasons, it is unnecessary for us to reach a determination on this matter. It is, however, appropriate to note that nothing in this provision or the evidence concerning rehabilitation provides any basis for any adverse conclusion concerning the proposal.
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Conclusion - balancing unacceptable impacts against the Mining SEPP
381As earlier noted at the conclusion of our clause 12 assessment, nothing arises out of our consideration of these for further clauses of the SEPP that adds to or detracts from the approvability of the proposed quarry expansion. For the reasons elsewhere enunciated, the adverse impact of the proposal are so unacceptable that nothing proposed outweighs them so as to warrant approval of the expanded quarry project.
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Aboriginal cultural heritage issues
382The site is within Registered Native Title Claim of the Wijibul clan of the Bundjalung linguistic group. For purposes of Aboriginal cultural heritage issues, it is within the administrative area of the Ngulingah Local Aboriginal Land Council (NLALC).
383The [now] Office of the Environment and Heritage's Aboriginal Heritage Information Management System (AIHMS) is a database of over 44,000 registered Aboriginal sites for New South Wales. The system holds all records of Aboriginal sites registered by consultants, National Parks and Wildlife Service Officers, Aboriginal community members and the general public. AIHMS contains information on known Aboriginal sites but does not purport to be comprehensive. It is not the result of systematic survey of this area. Field survey and Aboriginal consultation is required to establish the presence or otherwise of Aboriginal cultural sites. In the vicinity of the site, though not within its boundaries there are two Aboriginal sites recorded on the site register. One is a scarred tree (#04 -- 4 -- 00024) located about 650 m north of the existing quarry. The second is a well-known site -- the Tucki - Tucki Ceremonial Ground (#04-4-40126) known locally as the Tucki Bora Ring). This ring is within a local cemetery reserve, is fenced, and is on the LEP heritage list.
384Everick Heritage Consultants conducted an on ground archaeological survey of the subject land on behalf of the applicant. No physical evidence of Aboriginal sites or artefacts was revealed in this survey.
385In broad terms, two matters relating to Aboriginal cultural heritage arose for consideration during the course of the proceedings. The first of these necessitated the consideration and evaluation of archaeological and anthropological evidence concerning the interaction of Aboriginal peoples with the landscape in the vicinity of the site and as part of the ceremonial complex of which the Tucki Bora Ring forms the anchor. The Tucki Bora Ring is located ~ 2 km in a direction slightly to the west of north from the site. Originally there were two rings one of which has been subsequently destroyed by agricultural activity.
386Undisputed evidence about the Tucki Bora Ring attests to its importance as an initiation ground, its relative rarity as to its state of preservation, its documented use in the 19th century, and its association with the continuity of Aboriginal initiation ceremonies into the 20th century. Visible from the Bora Ring and spiritually associated with it is the gazetted Aboriginal Place known as the Parrot's Nest. There is a considerable body of information relating to the continuing respect in which the Bora Ring is held by both the Aboriginal and settler local community. All these factors make it an important heritage site
387In particular the Tucki Bora Ring forms the central axis of a significant cultural landscape. There is considerable evidence in the literature to suggest that activities associated with the first stage of men's initiation ceremonies, such as those conducted at the Tucki Bora Ring, included an initial gathering of relevant groups, an introduction of initiates to the Bora Ring, followed by a period of activity during which the elders took the young initiates on a circuit perhaps ten or twelve miles around the country surrounding the Bora Ring for several weeks before returning to it with the initiates. During this period they visited particular places of importance, introduced the initiates to sacred/secret information and taught them their duties as initiates. The circuit concluded with a return to the Bora Ring and acceptance of the young men by the tribal group or groups from which they came. It is agreed by both expert anthropological witnesses that there are a number of sites associated with the Tucki Bora Ground that relate to the first level initiation ceremonies of young Aboriginal men. These include the Lismore Showground, the now destroyed small Bora Ring, Corroboree Hill, and Young Man's Creek (the last being identified as part of the ritual circuit). The existence of these places in the oral tradition is not disputed.
388These sites cover a considerable distance and can be interpreted as pinpoints in a cultural landscape that extends beyond the site proposed for development. This fact alone does not demonstrate that the proposed development of the site would damage or adversely affect this cultural landscape but it signals that a thorough anthropological study and a detailed consultation process with key knowledge holders is required to ensure that the proposed development does not adversely impact the intangible values of an acknowledged Aboriginal cultural landscape.
389The second and more specific Aboriginal cultural heritage issue that requires consideration is one that arose from the evidence of Mr Murray John Roberts, a member of the Wijibul people. During the course of the third phase of the proceedings, Mr Roberts gave evidence on site at the Tucki Bora Ring, at the proposed quarry site and in Lismore courthouse as to the fact that part of the ritual circuit described above traversed part of the site, specifically the ridge line encompassing the southern expansion area and that the pathway itself which the initiates traversed to reach a specific place was of spiritual significance and that this significance would be destroyed by the proposed quarrying activity .
390It was Mr Roberts' evidence that young Wijibul males, as part of their initiation process, after they had undertaken ceremonial activities at the Tucki Bora Ring, travelled by a ritual pathway that, in general terms, followed Wyrallah Road to the vicinity of receiver R4 and then turned to follow that ridge line, being the one encompassing the southern expansion area, before descending the spur at the end of that ridge line and crossing the Tuckean Swamp in canoes to a small hill where further initiation activities took place. Mr Roberts described this hill as being known as the "teaching hill". This topographic feature, known locally as Round Hill, has been significantly altered by removal of material, as we understood it, at least several decades ago, as part of agricultural land management by the then owners of this portion of the now drained Tuckean Swamp.
391The applicant's position with respect to this specific claim of Aboriginal cultural heritage significance for portion of the site was that it has not previously been disclosed despite discussions with Mr Roberts in the course of archaeological and anthropological investigations. Although, in reaction to Mr Roberts' evidence, evidence was given on behalf of the applicant by Ms Lois Cook, a member of the Ngangabal people, the Aboriginal people whose traditional area is generally to the east of the area of the Wijibul people, the applicant's relevant experts were unable to provide researched evidence in response to this material advanced by Mr Roberts. This issue was further clouded by evidence from Ms Cook and her father, Mr Louis Cook, disputing the location of the boundary between their respective peoples' traditional country and, as part of that boundary dispute, in whose traditional country the Tucki Bora Ring and "teaching hill" were located and thus who had the custodial right to speak concerning that portion of the landscape.
392As a consequence, the applicant's solicitor, Mr Burrell, filed Notice of Motion on behalf of the applicant seeking leave to re-open the proceedings on this point and to enable further anthropological evidence, not only in specific response to the claim by Mr Roberts concerning the ritual pathway to the "teaching hill" but also to explore the broader anthropological context within which such a claim should be examined.
393After hearing some submissions from Mr Robertson SC in support of the application, it became clear to us that, if this application were to be agreed to, the applicant would be put to considerable further expense to have this work undertaken and it was likely that similar endeavour and expense might be needed to be incurred in response by the council. Whether or not the council's additional costs, if incurred, would need to be met by the applicant, as a condition of permitting further exploration of these issues, was not a matter discussed or considered by us during those submissions.
394However, we did conclude that, given the several months that would be necessary for that work to be undertaken and the fact that the proceedings had been already on foot for a considerable period of time (having taken, at that stage, nearly 20 sitting days), it was appropriate to suggest to the parties that we complete the evidence and submissions on what might be described as the broader planning issues with us giving a decision on those matters prior to determining whether or not we should accede to the work proposal contained in the Notice of Motion. We did so, in recognition of the position that, if the applicant were to fail on the broader planning issues, additional effort and expenditure on Aboriginal cultural issues would be unnecessary. We made that suggestion to the parties who agreed that the Notice of Motion should be adjourned until after the completion of the submissions on the broader planning issues were finished and we had given a decision upon them.
395In recognition of the fact that we were concerned that a parallel application (that generally but not entirely coincided with the present proposal) had been made to the Minister pursuant to Part 3A of the Environmental Planning and Assessment Act 1979 and that this also remained to be determined, we sought an appropriate undertaking from the applicant concerning the basis upon which our proceedings were to be continued. The undertaking involved the provision of the information to the Department of Planning that had been provided in an affidavit (read only on the Notice of Motion) from Dr McDonald, the proposed expert anthropologist who would conduct the foreshadowed further research on behalf of the applicant. Such an undertaking was given to us and it is in the following terms:
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396As a consequence, we have set aside our consideration and evaluation of Aboriginal cultural heritage issues. In light of the decision that we have reached on the broader planning issues, those matters will not now be require to be determined.
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Air quality issues
397During the joint conference scene of the air quality experts, agreement was reached between them as to what would be the appropriate conditions of consent to address the air quality issues if the proposal were to be approved. That agreement, extracted from their joint report, was in the following terms:
The experts suggest that the aim of the conditions should be to minimise dust emissions from all sources by applying relevant and practicable measures as contained within Best Practice guidelines for dust management that may be published from time to time. These measures should be incorporated within a comprehensive dust management plan for the site, and should include the following conditions as a minimum:
* A water cart and water sprays as necessary, shall be used to maintain all potentially dust site surfaces in a moist condition, as sufficient to minimise the emissions of dust to the maximum practicable extent;
* The site's mobile crusher shall be fitted with water sprays to be used during periods of excessive dust emissions;
* A dedicated water cart shall be provided during environmental (or other) bund construction, with the ability to spray up to the top of the bund, as necessary;
* For all activities involving the handing of topsoil, soil moisture levels shall be sufficient to minimise dust emissions and/or suitable water sprays shall be applied; and,
* Rectification or cessation of dust generating activities (i.e. not the cessation of the use of water carts and sprays) when dust emissions are excessive, for example where a visible plume of dust is present 100m or so from the dust source.
398They also considered the air quality impacts of the push up and over bund and, in a supplementary joint report, set out agreed conditions that would prevent adverse air quality impacts arising from this operation.
399As a consequence of these agreements, we are satisfied that there would have been no air quality issues that would have stood as impediments to approval of the project. In addition, we observe, in response to concerns raised by objectors that there might have been the air quality impacts generated by quarry traffic that might have been using Hazelmount Lane, we observe that this matter had been resolved by the agreement by the applicant that it would have been appropriate to impose a condition of consent prohibiting any use of Hazelmount Lane by quarry traffic (save for the purposes of emergency access or egress). We also note that a deal of the concern raised by the objectors concerning use of Hazelmount Lane was to traffic that, on the evidence given on behalf of the applicant, might be correctly regarded as traffic accessing the property and the associated premises and facilities occupied by Mr. Champion's son Matthew with that accessing being for the purposes of the agricultural activities being undertaken on the non-quarry related portions of the site.
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Ecological issues
400At the commencement of the pre-trial case management process, there were a wide range of ecological issues in contention between the council and the applicant. Many of these issues related to what the council considered to be the inadequacy of information relating to a number of identified species of flora or fauna that actually or potentially inhabited the site.
401During the very lengthy period of pre-trial preparation, the undertaking of further work and discussions between the experts for the council and for the company resolved a number of these issues and they did not remain pressed the proceedings. For the most part, the issues that were resolved were not matters that were pressed, independently, by any of the objectors and, as a consequence of the expert agreement included agreement on appropriate conditions of consent as necessary to address various matters of concern to the council, it is unnecessary for us to traverse those matters.
402However the question of the impact on the local koala population was a matter vigorously raised in the written submissions in response to the exhibition of the original Environmental Impact Statement and in the written submissions in response to the re-exhibited, amended Environmental Impact Statement. These concerns were also strongly reflected in the oral evidence given during the first phase of the site inspections.
403In addition, a number of other matters remained in contention between Dr Robertson and Mr Elks concerning:
* the rocky outcrops around the northern and eastern rim of the hill proposed to be removed as part of the quarrying operations in the southern extraction area;
* the extent to which additional protected replanting areas might be appropriate as a compensation for removal of the potential for regeneration in these areas; and
* matters relating to the sufficiency of surveying for a threatened plant species known as Hairy Joint Grass.
404In addition, a matter concerning the extent and location of the proposed koala food tree plantings on the site required to be dealt with as the local resident objectors and the representative of the local Friends of the Koala organisation, supported by the expert evidence of Prof Baverstock, the applicant's koala expert, and Dr Robertson, were at variance with the proposed condition of approval required by the Department of the Environment, Climate Change and Water (the Department) concerning the westward extent of the proposed plantings.
405Finally, also with respect to the Department's proposed conditions, Mr Champion gave evidence during the course of the site inspection about what he considered to be the undesirability of fencing the existing established high-quality vegetation areas that were to be conserved - as it was his opinion that permitting cattle to graze to the edge of these established areas assisted in weed control and fire hazard reduction in these open areas.
406Before turning to the two matters that require detailed description and analysis (any need for further koala surveys and the rocky rim to the hill in the proposed southern expansion area), the other three topics can be dealt with in comparatively short compass.
407With respect to the Hairy Joint Grass, the initial surveys within the areas proposed for future quarry operations were originally undertaken in the autumn months, a time conceded by the relevant expert witness for the company, not to be the optimum time for discovering any growing specimens of this plant.
408However, it was company's expert's opinion that the approach taken by him, of seeking to ascertain the presence of dead vegetative remnants of this plant, was an appropriate and acceptable methodology for ascertaining its presence.
409This position was not supported by Dr Robertson who expressed the view that further surveying for the existence of this plant was required and should be undertaken during the appropriate growing period (that is in late spring or early summer).
410Although it was foreshadowed during the early ecological phases of the proceedings that further material would be provided concerning Hairy Joint Grass, this did not eventuate. However, as we understood the nature of the discussions between all the relevant ecological experts during the first phase of the proceedings, had we otherwise determined to approve the proposal, conditions of consent could have been imposed that would have adequately guarded against any occurrence of this plant being discovered and then requiring of necessary steps to protect the Hairy Joint Grass.
411The Department's conditions concerning the planting of additional koala food trees on the site required a band of such trees, approximately 20 m wide, to be planted along the northern boundary of the site - from the eastern edge of the site, continuously following that boundary, and terminating at the western boundary of the site immediately adjacent to Wyrallah Road.
412The concern expressed by the local supporters of the koala and adopted and supported by both Prof Baverstock and Dr Robertson, was that plantings such food trees, at the proposed western end, in close vicinity to Wyrallah Road, would be likely to contribute, potentially significantly, to koala mortality. This would occur by encouraging koalas to food trees in the vicinity of the road and increasing the likelihood of such animals seeking to cross Wyrallah Road to access food trees on the western side of the road and thus being killed by vehicles using the road.
413The proposal advanced by those objecting to the extent of these plantings that there should be a break between the road and the food tree plantings. The experts supported this proposition. There was agreement that the appropriate termination point for the planting should be an existing collection of koala food trees located at a significant distance to the east of Wyrallah Road. The termination of the koala food trees at this point would be accompanied by an effective doubling of the width of the proposed band of koala food trees to be planted - thus ensuring that the number of trees to be planted would be, essentially, the same as that originally proposed in the Department's condition.
414We are persuaded, on the basis of the uncontradicted expert evidence given to us, consistent with the views expressed by the lay witnesses who raised this issue, that this would be acceptable and appropriate to adopt the second scenario and foreshorten the koala food tree plantings if the proposal were to proceed.
415The company indicated that it would accept such a revised planting requirement, including a requirement to double the width of the band of koala food trees. An alternative (and still necessary) location of a screen planting band of trees was discussed earlier in our visual impact consideration. This issue was thus resolved to our satisfaction.
416Mr Elks and Dr Robertson also agreed with the proposition advanced by Mr Champion that it was not appropriate to fence the existing established high conservation vegetation areas - although it was necessary to fence the replanting areas in the vicinity of them so that the replanting could be successful.
417As a consequence, again, we accept the uncontradicted expert evidence as to the appropriateness of not fencing these areas. We accept, as agreed to by the applicant, that an appropriate condition of consent could deal with the necessity for fencing of the replanting areas but that such fencing would be confined to protecting those areas and not excluding cattle from the vicinity of the outer edges of the established high conservation value existing vegetation areas that were to be conserved.
418With respect to the issue of koalas, it was the agreed expert evidence of Dr Robertson and Prof Baverstock that, with the truncating of the proposed koala food tree plantings along the northern boundary of the site, there was no unacceptable risk to koalas posed by the proposed quarry expansion. The applicant agreed to proposed speed limits within the quarry site's boundaries that would minimise any risk, already considered remote by Prof Baverstock, of any on-site vehicle impact on koalas. That this risk was considered by Prof Baverstock to be remote (a view concurred in by Dr Robertson) was because of Prof Baverstock's view that such movement of koalas as might take place around the site was highly unlikely to take place during quarry operational hours.
419However, a reporting regime would be established, if the quarry expansion had proceeded, that would have recorded sightings of movements of koalas on the site as such observations were made by those associated with the operation of the quarry.
420During this first phase of the in court hearing (at Ballina), we canvassed with the parties the concept, discussed by Preston CJ in Taralga Landscape Guardians Inc v Minister for Planning and RES Southern Cross Pty Ltd [2007] NSWLEC 59; (2007) 161 LGERA 1, of a broad "right to know" to be given to local residents and interested community groups on such matters of concern to them.
421The legal representatives agreed to consider how such information might be made available and the applicant also agreed that it would be appropriate for it to establish a dedicated website to make this information available. The company accepted the appropriateness of a requirement for the provision of such material on a dedicated website to be incorporated in the conditions of consent if the proposal were to be approved.
422Although there were concerns about the adequacy of koala population information expressed, strongly, by residents living in the vicinity of the end of Hazelmount Lane and by the local Friends of the Koala organisation, these concerns are not supported by the (uncontradicted) expert evidence of Prof Baverstock and Dr Robertson. Prof Baverstock is also a former resident of Hazelmount Lane and thus has had a more than merely visiting expert experience with this koala population.
423The proposition advanced by local residents and the Friends of the Koala that further tracking studies should be required as a condition of consent was not supported by Prof Baverstock. It was his view was that the resident local koala population could be expected to continue to congregate in the vicinity of the substantial array of koala food trees planted along or in the vicinity of Hazelmount Lane. As we understood him, to the extent that koalas might be attracted to the site, such attraction would be as a consequence of the planting of the additional koala food trees adjacent to the proposed reconstructed Woolley bund on the eastern boundary of the site and the planting of the koala food tree strip, linking existing isolated elements of this habitat, proposed to be planted along the northern boundary of the site.
424It was Prof Baverstock's evidence, as we understood it, also concurred in by Dr Robertson, that no further tracking study was required to monitor and be koala activities on the site.
425Although we understand the deep affection for and concern about koalas held by residents living in the vicinity of the end of Hazelmount Lane and by the local Friends of the Koala, we have no valid evidentiary basis upon which we could order any further study and we thus would have declined to do so had we proposed to approve the quarry expansion.
426We turn, finally, in our consideration of ecological issues, to matters of the possible presence of regenerating rainforest species and the extent of this in the rocky boulder rim of the hill to be extracted in the proposed southern extraction area.
427This area was the subject of an extensive walk around during the first phase site inspection, a walk around that was punctuated by informal concurrent evidence by Dr Robertson and Mr Elks about what was and was not present or expected to be present in the regrowth that was taking place interspersed amongst the boulders on this rim.
428Although the original contention of the council, supported by Dr Robertson's Statement of Evidence, was that further surveying needed to be done, Dr Robertson and Mr Elks reached agreement that the designation of an appropriate additional compensatory revegetation areas (accepted that by the applicant without it conceding that these were necessarily required) of approximately half a hectare in area and located immediately to the west of the existing proposed revegetation area between conservation Areas 2 and 3 would provide an appropriate offset for such vegetation as might be present in these rocky areas on the rim of the southern extraction area.
429In addition, in response to a question put by us concerning the value of the rocky rim as fauna habitat, the experts developed a condition that would require the establishment of elements of rocky habitats, by boulder emplacement, within the proposed replanting areas. The applicant accepted this proposed habitat construction.
430As a consequence of all of the above, subject only to the drafting of possible conditions concerning Hairy Joint Grass, there were no ecological issues remaining to be resolved.
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Inadequate information
431Although, at the commencement of proceedings, the council pressed the issue that there was inadequate information upon which we could proceed to hear and decide this matter, we have not listed that as a separate issue requiring our determination.
432Although it is clear, for reasons that have emerged during the course of the latter part of the hearing process, that the applicant wished to be permitted to undertake further research and provide further material concerning Aboriginal cultural heritage issues (including - but not confined to - matters raised by Mr Murray John Roberts) as earlier briefly discussed, the entirety of this topic was deferred for later consideration (should the necessity have arisen).
433With respect to the broader issue of the adequacy of information for us to consider and deal with on a wide range of other issues that have been contested in the proceedings, we are satisfied that the unfolding of additional information that:
has emerged during the site inspections;
comes from the evidence during the course of the proceedings from the various groupings of experts (including the significant number of supplementary joint reports arising from further formal and informal conferencing of those experts); together with
the amendments to the proposal that have caused the proposal's evolution in response to matters raised either initially or during the course of the hearing
has meant that, by the time we came to reserve our decision, there was adequate information on all contested issues needing to be determined in this decision and thus to enable us to reach the various conclusions that we have set out.
434As a consequence, on the full suite of matters other than Aboriginal cultural heritage matters, we are satisfied that, although there were undoubtedly inadequacies in information at the time we embarked on the very lengthy process of hearing this appeal, there was, in fact, sufficient information on all relevant matters to enable determination of them.
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Road and traffic issues
435We turn, next, to the question of road and traffic matters. This was dealt with during the course of two phases of the hearing and involved the following issues:
* road safety issues raised by the objectors concerning the additional number of heavy vehicles that would use Wyrallah Road arising from the expanded quarry (as a general matter of road safety) and, more specifically, safety issues arising specifically in the context of local traffic movements into or out of Mathieson Lane, an unsealed rural road intersecting with Wyrallah Road a kilometre or so to the north of the entrance to the quarry;
* matters concerning the redesign and reconstruction of the intersections of Wyrallah Road and Wyrallah Ferry Road and that of Wyrallah Ferry Road and Coraki Road (including whether or not there should be any apportionment of the costs of reconstruction of these intersections); and
* what should be the appropriate contribution calculation for payment by the company for road maintenance over the life of the expanded quarrying operation in light of the increase in truck movements from quarry over the local road system.
436The first issue, that of general road safety and the specific immediate local road safety matters, was dealt with during both the first and second phases of the hearings.
437We inspected the intersection of Mathieson Lane and Wyrallah Road, primarily in the context of an informal school bus stop located, for one movement of the bus, on the opposite side of the road to Mathieson Lane on the corner of Munro Wharf Road and, for the opposite movement, on the corner of Mathieson Lane itself. We also traversed Mathieson Lane's intersection with Wyrallah Road during the course of the site inspection, both inward and outward, on our way to Hazelmount Lane (which is accessed from Mathieson Lane).
438During the inspection of this intersection, the traffic experts were informally asked about sight distances for this intersection and whether any reconfiguration by incorporation of the slip lane was necessary as a consequence of the proposed additional heavy vehicle traffic arising from the quarry expansion. It was their position that no redesign was necessary. In light of this uncontradicted agreement, there is no basis upon which we should require works to this intersection if the proposal were to have been approved.
439During the course of the first phase site inspections, we inspected the two intersections that require reconfiguration and reconstruction (as a consequence of increased heavy vehicle movements through these intersections by traffic generated by the proposed quarry expansion whether by the movement of empty vehicles to the quarry or by laden ones delivering product from the quarry and by the present non-compliant movements as a result of the present configuration of the intersections). The vehicles that are likely to be the predominant class of vehicles performing such movements are a tip truck with a dog trailer attached.
440With respect to the extent of the redesign and works for each of the intersections, the following observations are made:
* Mr Holyoake and Mr Pilgrim agreed on the extent of reconstruction of each of the intersections to ensure that movements by a truck and trailer combination when traversing the intersection on either the unladen route to the quarry or the laden route from the quarry would be able to transit each of the intersections in a lawful faction and in a fashion which would not put that truck and trailer combination in conflict with a 19 m articulated vehicle making the countervailing movement through the intersection at the same time as the truck and trailer combination was going in the opposite direction;
* the first proposed reconfiguration design for the intersection produced by Mr Pilgrim would have had such conflicting movements being safe in only one of four of the possible combinations of movements;
* the experts produced a preliminary analysis of what additional reconstruction of each of the intersections was necessary, beyond Mr Pilgrim's original plans, to ensure that these four potential conflicting sets of intersectional transits could be undertaken safely; and
* a more detailed version of these plans was produced during the period between the first and second phases of the hearings.
441However, the necessary consequences of our conclusion that the proposal is unacceptable means that the apportionment argument relating to the cost of the intersection upgrades or of on-going maintenance contributions does not need to be determined. As these issues are, in their final compass merely matters of quantum and off setting, we need not explore them further as they cannot contribute to our adverse conclusions on the overall proposal.
Water issues
442At the conclusion of the evidence of the relating to water management issues, there remained a dispute between Mr Bishop, the relevant expert for the applicant, and Mr Carr, the relevant expert for the council, concerning the extent of protective measures necessary to be incorporated in the proposed stormwater sedimentation pond structures. There also remained a dispute between them as to what should be the extent to which the proposed water reuse dam could be constructed below the existing ground level and, if it were to be so constructed below existing ground level, what consequences, if any, there might be for water stored in the water reuse dam escaping into groundwater (if this were to occur).
443Whilst these matters remained in dispute, the dispute was confined to a choice between the positions proposed by the respective experts for the construction of the various elements of the stormwater treatment and water reuse facilities for the site.
444During the course of the site inspections, we had evidence from Mr Woolley and Mr White about their concerns relating to water quality from water being discharged from the present quarrying activities, being water which discharges (along with other water from the local catchment), into the lower portions of the Woolley property and, after passing through a culvert under Hazelmount Lane, finds its way via drainage channels adjacent to the lower portions of the White property (inundating low-lying parts of this property during high rainfall periods) prior to discharge into the nearby Richmond River.
445We accept that these concerns, whether or not caused by present quarrying activities (a matter which we need not determine), to the extent that they might possibly arise from the activities of the proposed expanded quarry if not otherwise addressed, would be able to be prevented by conditions of consent we could impose within the range of possible construction options for water control structures provided by the evidence of Mr Carr and Mr Bishop.
446Although, as might be expected, the range of preventative measures proposed by Mr Carr was more extensive and operationally restrictive than that advanced on behalf of the applicant by Mr Bishop, it is unnecessary for us to make a determination with respect to this issue as we have concluded, as elsewhere discussed, that there are a number of significant and entirely unrelated bases upon which the application should be refused. We note that nothing with respect to these water issues is pressed as warranting refusal or as to contributing to the warranting of refusal. We have not taken them into account in any of our separately enunciated bases for rejecting the proposal.
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Cost pursuant to s 97B - Are the push up and over bund changes minor amendments?
447These proceedings were commenced during the period where such appeals attracted consideration pursuant to s 97B of the Planning Act. Amendments were made to the development application during the course of the proceedings.
448The first set of amendments was made early in the proceedings and constituted those encompassed by the amended Environmental Impact Statement in the proceedings. It was agreed by the applicant that these amendments were not minor and thus these attracted a costs order by consent at the time of those amendments that encompassed, amongst other costs, those pursuant to s 97B(2). It was in the sum of $135,000.00.
449The applicable provisions of s 97B are engaged in a two-stage process. The first stage requires a determination as to whether or not, in the context of the overall application, the amendments are minor and, second, if they are not minor, the mandatory costs order requirement in s 97B(2) is engaged. The terms of s 97B have recently been amended as a consequence of the Planning Appeals Legislation Amendment Act 2010. However, the transition provisions that accompanied these amendments, now appearing in Part 24 of Schedule 6 to the Planning Act, make it clear that the present application does not receive the benefit of these significantly financially ameliorative amendments for non-minor changes to a development application. The relevant operative provisions of s 97B of the Planning Act applying to this proposal are in the following terms:
(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).
(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.
450The position that thus applies is that, if we were to determine that these amendments were not minor, there is no agreement between the applicant and the council as to the quantum of costs consequent that following on such a determination. Had there been such an agreement on costs and we were to conclude that the amendments were not minor, we are satisfied that we could not go behind such an agreement. However, that is not here the position.
451We also observe that, as the matter had taken some 15 or 16 hearing days when leave was granted for the amendments to be made, that being the relevant date for the consequences of any order that we might make pursuant to s 97B, any such order would, necessarily, be a significant financial burden to the applicant. We note, expressly, that this potential costs consequence for the applicant is not a matter appropriate for our consideration and we have ignored it.
452There is, now, a deal of consideration of s 97B issues by members of the Court. To understand the nature of our consideration of these matters, it is convenient to set out a little of that evolution of consideration.
453The first decision that dealt with the substantive question as to whether amendments were minor or not was that given in Cachia v Manly Council (No 2) [2009] NSWLEC 1107. This decision, for our purposes, established the proposition that such an analysis needs to be qualitative as well as qualitative. This broad proposition, with a number of expansionary analyses, has been accepted as a necessary underpinning element of the required s 97B analysis.
454Two further decisions warrant specific reference in this context. In Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, Preston CJ made it clear (at para 29) that context is a relevant consideration as part of the qualitative and quantitative analysis.
455In Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45, Pepper J also undertook a similar broad analysis of factors that might be relevant in this analysis. Relevant for our consideration, she said, in para 43:
I agree, however, with the council's submissions to the extent that if the amendments require significant assessment by the consent authority then they are less likely to constitute minor amendments for the purpose of the provision.
456The factors that we consider are relevant for our analysis matrix in this matter are, in part, derived from the evidence and, in further part, from what we observed from the range of vantage points (longer distance and closer up) from which we observed this area of the proposed southern extraction area. These factors are set out in brief form below:
The total proposed development is one to be undertaken across three separate extraction areas, one of which is presently operating and has been so operating over a considerable period of time;
The quarry has a proposed operational life, in its expanded form, of 20 years or so (if an approval were to be given for the proposed expanded range of activities);
There was limited, at best, original design of the southern extraction area associated operational activities for the first element of this operational area;
The operation of the push up and over bund and associated operational activities is envisaged to occupy, at most, a total of a maximum of some 60 days in its construction process;
It is envisaged by the applicant's quarry management plan that the volume of material proposed to be extracted in cuts 1 and 2 in the south-western element of the southern extraction area that will be used, for the purposes of establishing the push up and over bund and an adjacent shielding bund around the perimeter of this portion of the southern extraction area;
To the extent that there will be visibility during the construction process, it is our assessment that this will not differ significantly for the amended activities as compared to what might have been the quarrying activities originally likely for this area;
Although there will be visual differences between that which is now proposed and that which might have been constructed on the original proposal, such visual differences would likely only have been able to be appreciated and understood, in our opinion, by a person who had some understanding of quarrying operations and of elementary soil mechanics;
The amount of material proposed to be extracted as part of the commercial operations of the quarry utilising the push up and over bund, that is the material, as we understand it, proposed to be extracted at cuts 3 and 4 in the south-western corner of the southern extraction area does not differ, significantly or at all, from that which would have been removed for commercial purposes under the quarry proposal as originally formulated; and
Although it is now envisaged that it may be necessary to use a wider range of equipment including a D9R bulldozer, a rock saw and/or a rock hammer within the extraction area behind the push up and over bund and, at least potentially, throughout the operation of the southern extraction area, use of this broader range of equipment, accepting for the purposes of this analysis the evidence of Mr Bridges coupled with a condition that such equipment is to be used sequentially rather than simultaneously, means that there will be no external acoustic impact of or visual appreciation of the use of a wider range of equipment, and any such appreciation would be confined to persons standing in the immediate vicinity of the quarrying activities and looking down upon them.
457As a consequence of our consideration of all of these factors, we are satisfied that there is a qualitative difference between that which was contained in the development application as it existed prior to these amendments and that which resulted from the amendments. However we do not consider that this qualitative difference is significant and, on its own account, cannot take the status of the amendments beyond being regarded as minor on this criterion.
458We also consider that there are quantitative differences in that the range of equipment to be used; the now specificity of the number of work platforms proposed outside the push up and over bund and other factors of this nature also means that there is a quantitative change proposed by these amendments. Again, we do not consider given the comparison with the full range of factors that are relevant, particularly, in this regard, the proposed life quarry and the three extraction areas over which it is to be spread, that a proper analysis against this criterion could lift the amendments beyond being regarded as minor on this basis.
459Even if it is appropriate to hypothesise that amendments that are both qualitatively and quantitatively minor could, in some cumulative fashion, cease to be minor because of an aggregation of these two factors, we do not consider that that is the case with these amendments. That conclusion is one that we draw specifically and particularly because of the comparatively limited nature of the location and duration of effect of these amendments compared to the overall nature of the quarry proposal throughout its proposed operation.
460As a consequence, we have concluded, after a consideration of all these factors, that these amendments should be regarded as being minor and that there is no requirement to make an order pursuant to s 97B.
[66]
Summary of conclusions
461On the subsidiary issue of whether or not the amendments made to the development application as a consequence of the applicant's quarry management experts further consideration and now specific design of the activities in the southern extraction area associated with the push up and over bund, we have concluded on the facts that these amendments should be characterised as minor. The consequence is that no costs order pursuant to s 97B is required to be made. We have reached this conclusion after a consideration of a range of factors we have set out but particularly having regard to the scope and duration of the total proposed activities over the life of the project.
462As a consequence of this factual determination, we do not need to reach any conclusion on the proposition advanced by Mr Robertson SC that the work to be done by the words " the original development application" in s 97B(2) was exhausted by earlier non-minor amendments and the resultant associated element of the earlier costs order.
463We have undertaken our assessment of the impacts of and overall acceptability of the proposal using the structure set by cl 12 of the Mining SEPP. This has required us to undertake, first, an assessment of whether or not there were any impacts of the proposal that were unacceptable and, then, whether the consequence of any unacceptable impacts would warrant refusal of the proposal outright or could contribute, cumulatively, to warranting such refusal.
464The second step to be undertaken, if there were such impacts, as we have found there are, is to consider whether or not there is sufficient public benefit in permitting the proposal to go ahead because such public benefit outweighed the adverse impacts.
465Finally, whatever the outcome of the first two stages of our assessment, cl 12 requires us to consider what ameliorative measures are available and, in our opinion, also requires us to undertake this assessment of the ameliorative measures in a fashion that is consistent with the amber light approach taken by the court to development applications (that is whether or not there are additional ameliorative measures that we would require the implemented that would render then proposal acceptable or that these would lessen the impacts sufficiently for the public benefits to outweigh them).
466As part of the steps in the assessment pursuant to cl 12, we have also been required to undertake the consideration mandated by cll 14 to 17 of the Mining SEPP. Having completed this process, we have then derived an overall conclusion as to whether or not in the project should be approved.
467The single critical element that we have concluded is the key to the project, as part of the merit assessment, is the bund proposed to be reconstructed adjacent to the Woolley residence. We have concluded that this bund is unacceptable on two separate bases. The first factor that requires consideration is the duration and intensity of the construction noise that will be caused by the reconstruction of this bund. The specific conclusions that we have drawn with respect to this are as follows:
The extent and duration of the construction noise that will be inflicted on the Woolley residence is, in itself, unacceptable and warrants refusal of this element of the proposal;
If we are incorrect in reaching this specific conclusion concerning the Woolley residence, the combined duration and intensity of the acoustic impact of the reconstruction of the bund on the Woolley and the Griffiths residences is unacceptable and warrants refusal of this element of the proposal; and
If the combined duration and intensity of the impact on the Woolley and Griffiths residences (when taken together) do not warrant refusal of this element of the proposal, the addition of consideration of the intensity and duration of the impact on the White residence, although significantly less than the impact on the Woolley and Griffiths residences, when added to the impact of on the Woolley and Griffiths residences, render this element of the proposal unacceptable and require its refusal.
468We have also, for the reasons set out, separately concluded that the visual impact of the reconstructed Woolley bund is unacceptable and, separately, warrants refusal of this element of the proposal on that basis alone.
469If we are wrong in concluding that the various acoustic bases for refusing the reconstruction of the Woolley bund are sufficient in themselves to warrant refusal or we are in error in concluding that the visual impact on the Woolley residence is sufficient, in itself, to warrant refusal of this element of the proposal, we are strongly of the view that the total combination of the duration and intensity of the impact on the Woolley, Griffiths and White residences accumulated with the unacceptable visual impact of this bund on the Woolley residence warrants, as an accumulated set of impacts, refusal of this element of the proposal.
470The final element of the first stage of the assessment process required by cl 12(2)(a) of the Mining SEPP is of the visual impact of on the Wadsworth residence. As we have earlier discussed, we are satisfied that there is an adverse impact on the outlook from the Wadsworth residence toward the south but that this impact does not warrant refusal of the project but would modestly contribute to such refusal.
471We have concluded that there are no other impacts that are incapable of being dealt with by conditions of consent and, thus, no other matters that warrant refusal or could contribute to warranting refusal.
472We observe, for the reasons set out in more detail earlier, that these conclusions expressly set aside any consideration of the merits or otherwise of matters raised concerning Aboriginal cultural heritage.
473As we understand it, the consequence of rejection of the reconstruction and long-term placement of the bund in the vicinity of the Woolley residence coupled with the fact that the present bund adjacent to the Woolley residence has no development consent (as this was rejected on jurisdictional grounds in the Reavill Farm s 96 modification decision in 2010), we are obliged to proceed on the basis of considering the remainder of the proposal as if the original topography in the vicinity of the Woolley residence formed the topographic context for the project.
474It is, as we understand the situation, the uncontradicted position of the acoustic evidence that, without the bund adjacent to the Woolley residence, none of the three proposed extraction areas can conceivably be regarded as acoustically acceptable. The consequence of rejection of the bund and the vicinity of the Woolley residence is that the totality of the quarry proposal must be rejected.
475We have also concluded that there is an adverse visual impact on the outlook to the south-east from the Wadsworth residence. However, whilst this impact might contribute, to a modest extent, to warranting refusal of the proposal overall, it is certainly not sufficient, in our opinion, to warrant refusal in its own right.
476However, if we are wrong in our cascading assessments of the impact of the bund in the vicinity of the Woolley residence as warranting rejection of that element and thus the necessary refusal of the proposal in its entirety (because of the acoustic consequences of that bund not existing), we are of the opinion that the accumulation of those impacts coupled with the visual impact on the Wadsworth residents warranted refusal of the proposal overall.
477We expressly acknowledge that there is a clear distinction between the necessary rejection of the proposal on acoustic grounds that would follow from rejection of the bund in the vicinity of the Woolley residence and the separate accumulation of those impacts with the visual impact on the Woolley and Wadsworth residences warranting refusal of the proposal. The first is the necessary consequence of rejection of a critical element of the proposal whist the second is a rejection of the proposal in its entirety on an accumulated impact basis.
478Having reached the conclusion in the first step of the analysis pursuant to s 12 of the Mining SEPP, we have then turned to consider what might be the public benefit of approving the proposal and whether or not any such public benefit outweighs the unacceptable impacts sufficiently to permit such approval in light of the clearly beneficial and facultative nature of the Mining SEPP.
479We have earlier set out our analysis of those matters said by Mr Robertson SC to establish the public benefit of the proposal and the response by Ms Duggan to those submissions. We have also set out those matters that need to be taken from Mr Champion's affidavit that set out the factual limitations on possible utilisation of product to be derived from the quarrying operation. In drawing that material from Mr Champion's affidavit we have, as we indicated was the appropriate course to be followed, disregarded all those comments made by Mr Champion that attributed motivations to others as to why those limitations existed.
480Our conclusion on the second step of the analysis pursuant to cl 12 of the Mining SEPP resulted in us concluding that there is no possible rational basis upon which there could be sufficient public benefit in permitting the proposal to be approved that would outweigh the unacceptable impacts (both acoustic and visual) of the bund in the vicinity of the Woolley residence on that residence and, during the reconstruction process of that bund, on the Griffiths residence.
481The public benefit also cannot outweigh the adverse acoustic impacts on other receivers during the construction phases.
482Whilst the limited public benefit of the proposal might be sufficient to set aside the impacts on the White residence and the visual impact on the Wadsworth residence, the severity of the impacts on the Woolley and Griffiths residences, in our opinion, could not conceivably be offset by the limited nature of the public benefit that might flow from permitting the proposal to proceed.
483As a consequence, we have then proceeded to the third step of the cl 12 process and have considered the ameliorative measures that have been proposed by the applicant or could be imposed by us. There are a wide range of them as we have set out in our analysis earlier in detailed consideration of this topic. For the purposes of this conclusion, it is necessary to note, first, that there are a wide range of ameliorative measures proposed including contingent ameliorative measures such as temporary bunds or moveable barriers to shield particular acoustic impacts should the necessity arise during the quarrying operations.
484We have also considered the possibility, although it is unnecessary to go to precise detail, that requiring the applicant to meet the totality of (or a greater proportion of the costs of) the intersection reconstruction of the two presently unsatisfactory intersections in the vicinity of the Wyrallah township could contribute to both the public benefit of the proposal and be an additional ameliorative measure, in the broadest sense, of an impact for the purposes of cl 12.
485It is critical in our view, to understanding the ameliorative measures and the conclusion we have reached with respect to them that the principle necessary ameliorative measure required to permit the proposal to be approved is the construction of the attenuation bund in the vicinity of the Woolley residence. This ameliorative measure is the principal controversial ameliorative measure, in our opinion. Although there was controversy during the course of the site inspections concerning other aspects of visual impact of the proposal arising from the visual protection measures proposed by what might broadly be described as screen planting landscaping, we have not accepted those concerns except to the extent of determining that there is a limited adverse visual impact on the outlook from the Wadsworth residence.
486We acknowledge that there is a significant range of other ameliorative measures both off site (such as signposting in the vicinity of school bus stops) and on the site (such as the highly precautionary nature of the regime we could have determined would be appropriate for the protection of downstream water quality and groundwater water quality).
487However, taking into account the totality of the ameliorative measures but removing from that range of measures, in its entirety, the bund in the vicinity of the Woolley residence as we do not consider it is appropriate to have regard to an ameliorative measure that is, itself, so impacting as to be unacceptable, at the conclusion of the third stage of the cl 12 assessment, those matters we are required to consider pursuant to the second and third steps, including such ameliorative measures as we might impose consistent with the amber light approach adopted by the Court, cannot outweigh the very substantial and unacceptable impacts of the bund in the vicinity of the Woolley residence whether that unacceptability is sustained on all or any of the cascading elements that we have earlier set out as warranting rejection of that bund.
488The final outcome, therefore, is that although the second and third stages of the cl 12 assessment could result in the setting aside, potentially, any cumulative rejection of the proposal by setting aside the visual impact on the Wadsworth residence, it cannot set aside the unacceptability of the bund in the vicinity of the Woolley residence, a necessary foundational element for the overall project to be approved. Rejection of the bund in the vicinity of the Woolley residence therefore necessitates refusal of the proposal in its entirety.
[67]
Orders
489The orders of the Court, therefore, are:
1.The application for an order for costs pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 for the February 2011 amendments to the development application is refused as these amendments are minor;
2.The appeal is dismissed;
3.Development Application 2008/233 for the expansion of Champions Quarry at Wyrallah Road, Tucki Tucki, is determined by the refusal of development consent; and
4.The exhibits, other than Exhibit 1, are returned.
Tim Moore
Senior Commissioner
Sharon Sullivan
Acting Commissioner of the Court
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 23 May 2011
the White residence and property; the residence and property that is an in holding within the Champions' land and having a frontage to Wyrallah Road in the south-western corner where the ridge line from the south eastern extraction area meets Wyrallah Road;
the nearest residence on Tuckurimba Road to the south west of the site; and
Wyrallah and Tuckurimba Roads in the vicinity of the site (and those who travel upon those roads)
140In our view, this therefore requires a conventional planning assessment of whether or not there are any impacts of the proposed quarry that either warrant refusal of the proposal outright or, when taken together with other impacts, contribute to a cumulative effect that would warrant refusal of the proposal.
141Having undertaken those assessments, we are of the view that if, and only if, there are sufficient impacts of the proposal to warrant refusal in a conventional planning sense do we then proceed to undertake the assessment mandated by cl 12(b) of whether there are public interest reasons that outweigh any reasons for refusal and tip the balance in favour of approval of the proposal.
That there is no other similar high value sandstone resource available in the Lismore City local government area.
A quarry exists on the land and that expansion of the quarry is a permissible development.
The quarry is in a relatively isolated location.
The NSW Northern Rivers region has experienced considerable population growth and it is planned that the population growth will continue. Population growth generates a demand for construction and road building materials, including the up-grade of the Pacific Highway which is of local, regional, state and federal significance.
The resource is of a proven high quality and is of significant local and regional economic importance.
The resource contains a higher volume of sandstone material than other known approved quarries extracting the same resource and legally operating in the sub-region.
There will be trucks hauling extractive materials for greater distances, higher transport costs and greater road maintenance costs.
The average estimated cartage distance for sand and sandstone product from Champions Quarry is approximately 30kms. This is a highly efficient distance from a greenhouse gas emissions perspective (refer to Volume 3).
From 4.4.3 on page 105, under the heading Economic environment
The proposed quarry is justifiable as it will produce extractive materials from a proven resource that is not available in Lismore City Council Area and not readily available in the Far North Coast Region (within an economic distance) and which are essential for the building and construction industries and local, regional, state and national infrastructure projects.
The proposed quarry will reduce the distance and transport costs, emission of greenhouse gases and also financially contribute to Lismore City Council's road maintenance program. Currently material is transported greater distances from outside the Lismore City Council area and therefore does not contribute to the local road maintenance program.
The proposed development will make a significant contribution to local and regional employment opportunities in particular and contribute directly and indirectly to the local economy.
From page 106, under the heading Comment and implications
The NSW Department of Primary Industries (DPI) in its "Primary Industries in the North Coast Region of NSW Strategic Review" highlights the importance and key issues relating to production of construction materials.
The DPI Strategic Review indicates construction materials are an 'essential supply of materials for maintenance and development of infrastructure including the Pacific Highway up-grade and that the resource key issues are:
· "declining identified resource base
· declining access to resources
· sensitivity to transport costs and
· uncertainty over long-term sustainability of supply".
The Review indicates construction materials are characterised by:
· "use in large volumes
· low unit cost and
· sensitivity to transport costs".
The DPI in letter dater 23 September 2008 to Lismore City Council confirmed the significance of the resource and stated:
'The EIS indicated an inferred resource of nearly 12 Mt (page 42), and therefore the proposed development would qualify as a State Significant Development under Clause 7 (1)(b) of Schedule 1 of State Environmental Planning Policy (State Significant Development) 2005. The list of regionally significant quarries published by the North Coast Extractive Industries Standing Committee in 1997 did not include Champions Quarry as the full extent of the resource was not known at the time.
Resources in the North Coast are abundant but many area not accessible due to a variety of environmental or operational constraints (e.g. poor rural road networks), or excessive distance to markets. Consequently, the sustainability of construction material supply in the region is uncertain."
The resource is proven and located with easy access to the regional transport network.
315The notes from Mr Robertson SC also refer us to page 109 of Volume 1 of the UEIS where the aims of the Mining SEPP, set out in cl 2 of that SEPP, are reproduced. The relevant elements of those aims are discussed elsewhere in this decision.
316On pages 116 and 117, the UEIS summarises the "Public benefits of the proposed development", addressing cl 12(b) of the Mining SEPP, in the following terms:
The obvious public benefits of the existing and preferred land uses in the vicinity of the development appear to be:
· The existing quarry is an important and on-going feature of the local economy in terms of providing material necessary for road building and construction industries as well as local employment and the economic and social benefits that flow on.
· The pattern of closer rural settlement and more intensive agriculture has added to and should continue to strengthen local economic growth and prosperity.
· The variation and diversification in activities that has occurred over the past 40 years has correspondingly increased the local rural population and diversified and strengthened the local economy and job opportunities.
· Closer rural settlement coupled with an increase in smaller scale horticultural activities provide a greater variety of locally produced fruit and food, providing greater choice and benefits for consumers.
· There has been considerable investment in plantation agriculture to create economies of scale for production of tea-tree oil etc which has a beneficial multiplier effect for the local economy and employment.
· Much investment has gone into improving agricultural land in particular, for the expansion of cane-growing and beef production, which again has a beneficial multiplier effect for the local economy and employment.
Public benefits of the proposed development
In a local and regional strategic context the public benefits of the proposed development are as follows:
· The proposal provides for the orderly growth of an existing local extractive industry in response to normal market factors, facilitating local wealth and job creation.
· There is no other similar high value sandstone resource available in the Lismore City local government area.
· A quarry exists on the land, the resource is proven and the on-going extraction of that resource for future generations potentially over the next 50 years.
· The resource is located immediately adjoining Wyrallah Road which is a regional main road (MR 147) providing a direct haulage route to the major state road infrastructure projects such as the Woodburn to Ballina Pacific Highway Upgrade and other local and regional road infrastructure projects.
· The quarry is in a relatively isolated location in that there are few dwellings and potentially other sensitive land uses in its immediate vicinity.
· The NSW Northern Rivers region has experienced considerable population growth and it is planned that the population growth will continue. Population growth generates a demand for construction and road building materials, including the up-grade of the Pacific Highway which is of local, regional, state and federal significance.
· Other sand resources occur closer to the coastline in environmentally sensitive locations.
· The resource contains a higher volume of sandstone material than other known approved quarries extracting the same resource and legally operating in the sub-region.
Having regard to the above, the environment of the land and locality is capable of absorbing the potential impacts from the proposed quarry which are largely attenuated by distance and environmental controls, to the extent that any residual private dis-benefit is outweighed by the public benefits of the proposal.
317Finally, from Volume 1 of the UEIS, we extract the nominated portions of pages 141 and 142. They are in the following terms:
Community interests
The proposed development does not raise any apparent public issue.
The issue of the public interest in relation to the proposed development was considered in the report titled 'Best Practice Review for Lismore City Council - July 2009' by Pamela Westing BA, MCP, FPIA, CPP of Pamela
Westing and Associates prepared following Council's determination of the DA.
Pamela Westing and Associates made the following comments in regard to submissions made to the review, public interest and the Respondents Community Consultation Policy.
"The Community Consultation Policy is a general policy document, and contains statements about the views of residents being of primary concern and that Council will act on them where possible. Such wording may be appropriate for broad policy making, but it can lead to unrealistic expectations in the context of development applications. Council must consider each application on its merits in a legal, social, economic and environmental policy framework and consider the public interest in the broader sense. Council cannot make residents' views (or any other individual consideration) its primary concern in determining applications. The wording of the policy should be amended to clarify the balance approach that Council must maintain in considering development applications".
In conclusion the development is permissible in the zone and satisfactorily meets statutory requirements established under s79(C).
318The next document with specific references relied upon by Mr Robertson SC is the marketing assessment report prepared by Mr. Robertson, one of the applicant's quarry management experts, on behalf of AVKO Mining Pty Ltd. We reproduce in their entirety those elements of this marketing assessment report referenced by Mr Robertson SC as supporting public benefit conclusions to be drawn in support of the proposed quarry expansion.
319On the second and third pages of the executive summary of the AVKO report, the following appears:
Product Demand, Competition and Potential Market Position for Champions Quarry.
Significant research has been completed by Champions Quarry and Environmental Resource Management (ERM) in regard to local demand and competition in the Far North Coast Region. This includes Resource estimates and production rates of competitors, local prices and population growth. AVKO Mining has used this and other data to rank Champions Quarry as a long term producer of quarry products within the region. Key issues are:
* The Far North Coast Region in general and the Lismore/Ballina Region in particular is principally basalt and has limited sand quarries.
* There is a distinct lack of washed sand for the concrete and asphalt markets in the Lismore/Ballina Region.
* There is a distinct lack of suitable sandstone for blending with basalt to provide RTA specification DGS and DGB blended road base for the region.
* There are limited sources of dimension stone and sandstone boulders.
* There is a distinct lack of Australian Standard bricklayer's sand in the region since Broken Head Quarry ceased production in 2007.
* There are no licensed quarries for topsoil sales in the area.
* Some quarries appear to be extracting more than their licence allows.
* Some quarries are operating illegally or have been closed down by Local or State Government Departments.
The potential ability of Champions Quarry to supply washed sand, select road base, engineered fill and other sand products to regular markets and to major projects in the Lismore/Ballina Region will have a major effect on the growth of the quarry. This study has identified that Champion's Quarry is probably the largest potential resource of regional significance of washed sand and sandstone available for approval in the Lismore/Ballina Region of New South Wales. Most competitive operations are located on limited resources or have longer term operational (including environmental) problems.
320We next reproduce below the relevant nominated sections from the AVKO report dealing with the potential markets to be targeted by the proposed quarry and matters relating to competition with this proposed expanded quarry. Finally, in the extracts from AVKO report, we reproduce the elements that relate to sustainability issues contained in 3.9 of that document. These portions of the AVKO report are reproduced in full below:
3.1 Introduction
In assessing the Champions Quarry operations in the Far North Coast Region the following key issues have been identified.
* The Far North Coast Region in general and the Lismore/Ballina Region in particular is principally basalt and has limited sand and sandstone quarries.
* There is a distinct lack of washed sand for the concrete and asphalt markets in the Lismore/Ballina Region.
* There is a distinct lack of suitable sandstone for blending with basalt to provide RTA specification DGS and DGB blended road base for the region.
* There is a distinct lack of Australian Standard bricklayer's sand in the region since Broken Head Quarry ceased production of bricklayer's sand in 2007.
* There are no licensed quarries for topsoil sales in the Lismore/Ballina Region.
* Some quarries appear to be extracting more than their licence allows.
* Some quarries are operating illegally or have been closed down by Local or State Government Departments.
3.2 Champions Quarry Product Description
The resource at Champions Quarry is extremely important and unique to the region for the following reasons:
* It is a sandstone resource in what is basically a basalt region
* Most of the coastal and river bed sands possess round particles and are less valuable than the sought after fractured face sands, described as subbrounded to sub-angular (found at Champions Quarry) required for strength for the concrete market.
* Generally, sources of washed sand provide either fine sand or coarse sand.
* Champions Quarry product analysis shows both fine and coarse sands are present on site.
* Most coastal sands and hinterland sandstone possess little or no Plasticity Index (PI) Rating. PI is necessary for products such as high quality roadbase, blended roadbase, certified engineered fill and bricklayer's loam. The resource at Champions Quarry shows consistent PI in the yellow sandstone.
* The Champions Quarry resource possesses an excellent combination of Californian Bearing Ratio (CBR) for strength, a high level of fines, excellent PI, zero reactivity (wet to dry) and the product has self cementing properties all qualities not present in basalt products and rarely found in sandstone in the region. These qualities are required for roadbase, RTA specification blended roadbase and certified engineered fill and are currently lacking in supply in the Lismore/Ballina Region
Accordingly, Champions Quarry would be able to efficiently and economically supply a large range of important products to the region.
3.3 Demand for Sandstone Quarry Products in the Far North Coast Region
The area of consideration for marketing is the greater area of the Far North Coast Region (excluding the Tweed Shire Council and Clarence Valley Council). Table 3.1 shows the population of these local government areas (Census 2006 Update) projected to 2009. AVKO Mining assesses the annual demand for sand related products (including washed sand, certified engineered and general fill, roadbase, bricklayers sand and specialty sand products) in this region to be 3 t - 4 t/capita. The remaining consumer demand is for aggregates used in concrete, road aggregates and construction projects and this annual demand for the region is assessed at 4 t - 5 t/capita.
Table 3.1 Population of Local Government Areas in Far North Coast Region
Local Government Area 1996 2001 2006 2009 Projected
Lismore City 43,551 43,064 44,225 46,794
Ballina Shire 34,650 38,159 40,266 42,605
Byron Shire 26,620 29,689 30,635 32,415
Richmond Valley Shire 20,861 21,183 22,172 23,460
Kyogle Shire 9,919 9,817 9,686 10,249
TOTAL 135,601 141,912 146,984 155,528
Although there might be markets within the Lismore local government area which, in their supply, might derive modest greenhouse gas emission benefits by being supplied from this proposed quarry, it is clear from Mr Champion's affidavit that he envisages his quarry operating across local government boundaries - as he attests, in his affidavit, as to the necessity for some developments in the Ballina local government area to be constructed on elevated building pads capable of deploying material from his quarry for that purpose. He also instances, as earlier noted, his attempting to supply material to the RTA for construction of the Ballina bypass. It is, therefore, appropriate to treat access to sandstone-based construction material as being a regional market and not one confined to or to be considered solely on the basis of sources within the Lismore or any other regionally proximate local government area;
There would be likely to be some direct employment and direct self-employed contractor benefits that would flow from approval of the proposal. As we have earlier noted with respect to 3.2.6 of the UEIS, these cannot be precisely quantified but should be regarded as additional to existing employment in the region rather than in substitution for existing employment or contracting opportunities. In addition, the multiplier effect of such employment for regional economic activity also is a positive in the applicant's favour; and
Although we are satisfied, on the basis of the AVKO material produced in support of the application, that there is a need for long-term sources of material of the type capable of being supplied by this proposed quarry expansion, there is certainly insufficient proper basis for us to conclude that approval of this quarry expansion is necessary to provide appropriate resource security for the supply of such materials - either in the short term or on any mid to long term basis.
343We have no evidence that there would be any broader economic benefit by the insertion into the local market of this proposed expanded quarry having a downward impact on prices for the supply of such material. Indeed, the only evidence that we have with respect to potential large-scale market supply is that from Mr Champion's affidavit in which he attests that his quarry was unable to be competitive for the supply of material for a major contract to the RTA for the Ballina bypass. Whether or not his quarry's failure to obtain that contract occurred because this quarries supply was not price competitive or for some other reason is not a matter about which we need to speculate (nor is it a matter to which we have had any regard in our concluding that there is no evidence available of a possible price dampening community economic benefit from approving this proposed quarry expansion).
344Having weighed all the matters in the above list of the various factors that we have set out, we are prepared to conclude that there might be some very modest public benefit in having a further long term alternative source of supply for such sandstone materials. Further, there might be some modest greenhouse gas emission benefits to be obtained by more localised supply into the Lismore local government area but the obvious aspiration of the proprietor of this quarry to seek to satisfy markets beyond that local government area means that there would be, if this were to be successful, possible additional, countervailing greenhouse gas disbenefits compared to the sourcing of such material from potentially closer locations in other local government areas.
345As an overall consequence, we do not consider that that the limited public benefit that might accrue from approving of this proposed quarry expansion could come close to outweighing the adverse acoustic impacts of either the necessary construction practices prior to the proposed operational expansion or of the long-term adverse acoustic impacts on the Woolley and Griffiths residences (that would be occasioned as a consequence of the rejection of the Woolley bund on both acoustic and visual impact bases). The visual impact unacceptability of the Woolley bund, although one of the two foundational bases upon which it is rejected (the acoustic impact of its reconstruction being the other) is merely a further and sufficient reason for rejecting this bund with the inevitable consequence of reinforcing the unacceptability of the overall proposal.
346As we have observed elsewhere, given the fact that the assessment of the impacts that we have made for the reasons set out earlier have placed formidable barriers to approval of this project and that the process by which the applicant can overcome those barriers is only afforded by our assessment of the public benefits [cl 12(b)] when combined with the existing proposed and possibly imposable ameliorative measures [cl 12(c)], we have approached our assessment of all of the material to which we have been referred by Mr. Robertson SC on the basis of endeavouring to construct it in as beneficial a fashion to the applicant as it is possible. Had the public benefits, in a combined sense, from cl 12(b) and (c) been sufficient to require us to contemplate setting aside our adverse impact assessment findings, then we might have needed to revisit our discussion of these materials on a more jaundiced or testing basis. However, as we have concluded that the public benefits to be derived from the proposal are, at best, modest, and could not require us to set aside our impact assessment, it has been unnecessary for us to revisit this material on that more critical evaluation basis.