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[2007] VCAT 766
Victorian Civil and Administrative Tribunal
2007-05-10
Ms J
Original judgment source is linked above.
Application under section 77 of the Planning and Environment Act 1987; Kingston Planning Scheme; Special Use Zone; Proposed Sand Extraction; Legislative and Planning Policy Framework; Need; Amenity Impacts; Air Quality; Dust; Traffic and Access; Visual Amenity and Landscaping; Rehabilitation; Issues Associated with Water Filled Pit; Water Quality and Quantity; Catchment Drainage; Landfill; Permit and Work Plan Conditions; Role of Council, DPI & EPA.
461 Heatherton Road & 720-726 Clayton Road, Clayton South
25 October 2006 and 8, 9, 12, 13 & 14 February 2007
Clayton Sands Pty Ltd v Kingston CC [2007] VCAT 766
With respect to permit application KP699/05, the Responsible Authority's decision to refuse to grant a permit is affirmed.
The Responsible Authority is ordered that no permit be issued pursuant to section 85(1)(a) of the Planning and Environment Act 1987.
Mr S Molesworth, QC and Ms J Lardner of counsel instructed by JN Martin & Partners
They called the following expert witnesses who presented their evidence-in-chief and were made available for cross-examination:
Mr B Natoli, consulting geologist for extractive industries;
They called Mr D Ife to give expert hydrogeological evidence and he was made available for cross-examination.
Mr M Kearney and Mr K Boniface appeared for Melbourne Water
Mr B Ross appeared for Defenders of South East Green Wedge Inc
Mr A Dawson appeared for himself and Heatherton R.A.I.D Inc
Mr R Umbers of Peninsula Planning Consultants appeared for The Baxter Group
1 This is an application to review the decision of Kingston City Council ('the Council') to refuse to grant a permit for sand extraction at 461 Heatherton Road and 720-726 Clayton Road, Clayton South. The reasons for the Council's refusal are:
•
The proposed use and development does not identify an appropriate and reasonable post closure rehabilitation plan. Therefore, the proposed use and development is inconsistent with the policy framework.
•
Because the proposed use and development does not identify an appropriate and reasonable post closure rehabilitation plan, the proposal does not represent orderly planning.
•
In the absence of the timely implementation of an appropriate and reasonable rehabilitation plan, the dormant site would have a detrimental effect on the amenity of the surrounding area.
•
The lack of an adequate buffer distance and the close proximity of a number of sensitive uses, including a school.
2 This hearing commenced on 25 October 2006 and was then adjourned to allow the expert evidence reports to be served on Melbourne Water and VicRoads[1]. The hearing then continued between 8 and 14 February 2007. All submissions, evidence and documentation presented during the course of the hearing have been considered, together with our inspection of the site and surrounds after the hearing.
3 The review site is located in Clayton South on the northeast corner of Heatherton and Clayton Roads, with a third frontage to Deals Road to the east. It has previously been used for commercial flower cultivation and includes a number of sheds, a small office building and a couple of houses. It has a total area of 11 hectares.
4 Abutting the northern boundary of the site is the Clayton Regional Landfill (expected to be filled by 2012). On the opposite side of Deals Road, to the east, is The Baxter Group's Landfill (expected to be filled by 2015). To the northeast along Deals Road and Simpson Road is a go kart track, rifle range and motor cycle club.
5 To the south, on the opposite side of Heatherton Road from the review site, is vacant land that has planning permission for a rural industry (sawmill) with associated manufacturing sales and agriculture (timber production).
6 On the southwest corner of Heatherton and Clayton Roads is a dwelling and adjoining this property, further to the west, is the Heatherton Christian College. At the northwest corner of Clayton and Heatherton Roads is a motor repair facility with a reception centre and poultry farm further to the north.
7 The proposal is to allow the operation of a sand mining facility to extract and process sand. It will occur over approximately 7.97 hectares of the total site area and to a depth of 20 metres below the current ground level. A buffer distance of 20 metres to Heatherton and Clayton Roads and 10 metres to Deals Road and the northern boundary are provided for.
8 The facility seeks permission to be operational between 6am and 6pm 5-6 days per week (Monday to Saturday), operating 10 hours per day over approximately 48 weeks per year. Mr Molesworth advised the facility is expected to have a working life of 4-6 years.
9 The excavation will begin at the Clayton Road end of the site and proceed in an easterly direction towards Deals Road.
10 The activities on the site will consist of:
•
The removal of topsoil and overburden using mobile plant and equipment;
•
Stockpiling topsoil and overburden into grassed bunds and revegetation around the west and south boundaries of the site to reduce erosion, dust and visual amenity impacts;
•
The extraction of sand using dry and wet processing with the processing plant being not more than 6 metres in height;
•
Sorting and blending sands into products for sale (including delivery of sand and compost from elsewhere for blending); and
•
Stockpiling of sand products.
11 Commercial vehicle access to the site will be via the northern end of the Deals Road frontage and vehicles will be required to enter and exit via the Clayton/Ryans Roads controlled intersection to the northwest of the site. Access to the office and staff car park is provided via Heatherton Road.
12 The review site is contained within a Special Use Zone Schedule 2 under the Kingston Planning Scheme ('the Planning Scheme'). The purpose of this zone is to recognise or provide for the use and development of land for specific purposes and the purpose of Schedule 2 is:
•
To recognise or provide for the use and development of land for extractive industry.
•
To encourage interim use of the land compatible with the use and development of nearby land.
•
To encourage land management practice and rehabilitation that minimises adverse impact on the use and development of nearby land.
13 Planning approval is required to use land for the purpose of mineral, stone or soil extraction (including sand extraction which is defined in the Planning Scheme as extractive industry) and to carry out buildings and works.
14 There are no overlay controls that affect the review site.
15 The review site and all surrounding land are located outside the Urban Growth Boundary within a designated green wedge. Urban areas are situated approximately 1 kilometre to the east and north. The land to the immediate north, east and west is also zoned Special Use Schedule 2, whilst the land to the south is zoned Green Wedge. Both Clayton and Heatherton Roads are contained in a Road Zone.
16 The Green Wedge provisions at clause 57 apply, albeit there is no actual permit requirement under these provisions. The purpose of this clause includes:
To protect metropolitan green wedge land from uses and development that would diminish its agricultural, environmental, conservation, landscape natural resource or recreation values.
17 Extractive industry provisions at clause 52.09 apply to any proposal for the use and development of land for this purpose. These provisions set out requirements for boundary setbacks, screen planting and car parking areas and that a permit is required to allow extraction within 20 metres of a boundary, as is the case for the north and east boundaries of the review site. The decision guidelines that must be considered include:
•
The effect of the extractive industry operation on the natural and cultural landscape of the surrounding land and the locality generally.
•
The ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject land in accordance with the Regulations associated with the Extractive Industries Development Act 1995 and other relevant regulations.
•
The effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area.
•
The ability to rehabilitate the affected land to a form or for a use which is compatible with the natural systems or visual appearance of the surrounding area.
•
The ability to rehabilitate the land so it can be used for a purpose or purposes beneficial to the community.
•
The effect of the proposed extractive industry on groundwater and quality [sic] and the impact on any affected water uses.
•
The impact of the proposed extractive industry on surface drainage and surface water quality.
•
Any proposed provisions, conditions or requirements in a 'Work Authority' to be issued under the Extractive Industries Development Act 1995. [Emphasis added]
18 We note that clause 52.29 requires a permit for alterations to access to a Road Zone and this proposal is seeking to rationalise the number of existing entry points to the site, including having no access from Clayton Road and staff/visitor car access from Heatherton Road.
19 This matter was the subject of a lengthy hearing and we were presented with detailed submissions and a great deal of expert evidence. We do not think that any of those who attended the hearing would disagree that the cross-examination of the expert witnesses was thorough. In setting out our reasons for this decision, we do not propose to summarise or refer to all of the submissions and evidence that was presented as to do so would lengthen the reasons for our decision unnecessarily. Rather, we will set out our views with respect to the various matters relevant to the consideration of the merits of the proposal and will make reference to submissions and evidence as appropriate.
20 We have already stated this proposal is to use and develop the review site for the purpose of extractive industry, in particular the extraction of sand. Planning approval is required for this under the zone provisions. Further, the extractive industry particular provisions at clause 52.09 must also be considered together with the relevant planning policy framework in the Planning Scheme.
21 It is noteworthy that the Council stated that, in principle, it is not opposed to this site being used for extractive industry, particularly as the zoning of this land specifically provides for this type of land use and development. The Council's key concerns with this proposal are the adequacy of the buffer distances to sensitive uses and the post closure rehabilitation, including the suggestion that the site can be used for landfill. Mr Ross and Mr Dawson share the Council's concerns and elaborated on the relevant planning policies, the buffer distances and the likelihood/appropriateness of landfill as part of the post closure rehabilitation.
22 Mr Umbers submitted on behalf of The Baxter Group's landfill, which is situated to the east of Deals Road, that the proposal does not maximise the extraction potential as it could extend to the site's north boundary and extend to Baxter's land to the east including part of Deals Road. This is a matter which is not before us. It is up to the permit applicant to decide what form a planning proposal should take. In this case we have a proposal for sand extraction with reduced setbacks (subject to the Extractive Industry particular provisions) to the north and east and it is this detail that we must consider, rather than a suggested alternative by The Baxter Group.
23 On reviewing the submissions and evidence, the relevant matters under the Planning Scheme and legislation, together with the details of the proposal, we agree with Mr Molesworth that the key issues are the amenity impacts and what constitutes an appropriate and reasonable rehabilitation. In considering these issues we have had regard to the following key areas:
•
The legislative and planning policy framework;
•
The need for the proposal;
•
The amenity impacts including air quality, traffic and access, and visual amenity and landscaping;
•
The rehabilitation of the site; and
•
The conditions that should be imposed on a permit.
24 Planning permission is required for this proposal pursuant to Schedule 2 of the Special Use Zone and one of the overarching purposes of this zone is to implement the State and local planning policy frameworks. There is clear policy direction at a State and local level in the Planning Scheme to support the conservation and use of natural resources and hence to support extractive industry subject to considering all relevant interests and factors as part of a permit application.
State Planning Policy Provisions for Extractive Industry
25 The State Planning Policy Framework ('the SPPF') outlines the principles of land use and development planning, which include the following management of resources principle:
Planning is to assist in the conservation and wise use of natural resources including energy, water, land, flora, fauna and minerals to support both environmental quality and sustainable development over the long term through judicious decisions on the location, pattern and timing of development.[2]
26 The review site is within a designated "green wedge" (being the Heatherton/Dingley green wedge) and the SPPF seeks to protect these wedges from inappropriate development by, amongst other matters:
Protecting significant resources of stone, sand and other mineral resources for extraction purposes.[3]
27 There was some suggestion during the hearing that the green wedges are aimed at agricultural uses rather than industry; however it is quite clear that the purpose of the green wedges is to provide for a number of land uses including the extraction of sand resources that are to be found in this area.
28 Melbourne 2030 is a reference document in the Planning Scheme and one of its draft implementation plans[4] recognises each green wedge has its own unique characteristics and requires further strategic work to set a vision, role and objectives for each green wedge. Ms Lane advised the Council has commenced this process, but it is at a very preliminary stage[5].
29 The Extractive Industry State planning policy objective is:
To identify and protect stone resources accessible to major markets and to provide a consistent planning approval process for extraction in accordance with acceptable environmental standards.
30 It goes on to state that the provisions of the Planning and Environment Act 1987 ('the Planning Act') and the Extractive Industries Development Act 1995 ('the EID Act'), the Environment Protection Act 1970, relevant State environment protection policies and the Flora and Fauna Guarantee Act 1988 should be applied to extractive industry activities in a timely and coordinated manner.
31 The EID Act was introduced in 1995 and it was intended to provide a legislative framework that worked in parallel with the Planning Act, which is explained in the following extract from the Second Reading speech:
The extractive industry in Victoria plays an important role in the Victorian economy in the provision of rock, sand, gravel and other products to the construction and allied industries. It is essential that the industry is able to plan its operations with certainty and to produce competitively priced rock products for the benefit of the entire community. Extractive operations can be established only where stone resources are located and this can result in potential conflict with other land uses. The bill and the administrative changes referred to will enable all factors and interests to be considered in the planning approval process so that balanced decisions are reached.[6]
32 Mr Natoli gave evidence that a permit applicant must have an endorsed draft work plan from the Department of Primary Industries ('DPI') before a planning application can be lodged. This is set out in the Guidelines for Extractive Industries (DNRE June 1998) and in accordance with s.19(2)(c) of the EID Act.
33 The Municipal Strategic Statement ('the MSS') acknowledges extractive industry has been a long standing feature of Kingston's non urban areas and many of these operations are now coming to a close; however, it is expected that landfills will remain operational in this area for at least another 20 years. The MSS goes on to state:
Their continued operation needs to be protected and the filling of extraction pits needs to be coordinated under the regional Waste Management Strategy to ensure that rehabilitation after completion is well planned.[7]
34 The following key issues in the MSS for non urban areas are of direct relevance to the issues to be considered as part of the merits of this proposal:
•
Coordinated management of extractive industry and land filling operations, including planning for the rehabilitation and after use of such sites.
•
Improvement of the region's environmental values (including flood storage, water quality improvement and flora/fauna habitats). Private sector involvement may be required to implement such objectives.
•
Development of regional parks and creation of a network of regional open space linkages.
•
Planning and management of 'urban related uses' in non urban areas.
35 There are objectives and strategies in the MSS about implementing the Chain of Parks and Sandbelt Open Space Strategy as well as promoting rural, recreational, industrial and tourism related opportunities on identified "enterprise sites"[8]. The Sandbelt Open Space Strategy[9] is concerned with establishing a series of connected parks across Heatherton and Dingley, which will form part of the broader metropolitan Chain of Parks. The objectives of this local planning policy become particularly relevant in considering the rehabilitation of the review site (a matter we will discuss later in these reasons). The review site is identified as an "enterprise site" under this Strategy, which is described in the 1994 Sandbelt Plan[10] as:
A number of enterprise sites were included in the Implementation Strategy (Deloitte 1992) as formal recognition of the role of private organisations in the development and implementation of the project. These sites were high profile sites which could assist in both funding the development and contributing to the implementation of the project. They include Melbourne Water land on Warrigal Road, south of Fairchild Street, the surrounding Heatherton and Clayton/Boundary Roads, and two sites north of the Westall extension fronting Springvale Road.[11]
36 This is reflected in the objectives of the Enterprise Sites local planning policy, which include:
To promote innovative, well designed development which is compatible with the Sandbelt Open Space project and offers a range of rural, recreational, and tourism related opportunities on these high exposure sites.
37 This policy has been the subject of criticism in 2005 by another division of this Tribunal and by an Advisory Committee and Panel[12]. In the Tribunal case, Senior Member Monk described the aspirations of policy, particularly for recreation in the form of private outdoor adventure activities, as having significant shortcomings given the current land use context. In both cases, the Tribunal and the Panel pointed out the core Green Wedge provisions now contained in clause 57 of the Planning Scheme contain restrictions on the types of land uses in green wedge areas including limitations on recreation and tourism related uses.
38 We acknowledge that there are discrepancies between the objectives of the Enterprise Sites local planning policy and the permissible uses in the core Green Wedge provisions. However, we also acknowledge this local planning policy was in place long before Melbourne 2030 and the green wedge provisions came into operation. In such a situation it is inevitable that for a period of time afterwards there will be discrepancies between policy and planning control provisions. Strategic planning work needs to be undertaken to correct such discrepancies and we are of the opinion this is best achieved in this case through the required strategic work to set a vision, role and objective for this green wedge, a process which the Council has only just begun. The outcome of such work could include a schedule to clause 57 that varies the core Green Wedge provisions to achieve the land use opportunities sought through the Sandbelt Open Space Project.
39 In our opinion, the discrepancies are not so significant as to place in any doubt the overall intentions for this green wedge. Its role is, in part, to facilitate the extraction of the sand resource subject to amenity impacts and appropriate rehabilitation. This is consistent with the other relevant State and local policies in the Planning Scheme. Ultimately, the broader planning outcome sought is to rehabilitate this area of Heatherton and Dingley so that it contributes to the Chain of Parks. Again, this is consistent with other State and local policies. Not all of the land within this area will be utilised for parkland, and this site is a designated high exposure location where alternate rural, recreational or tourism related opportunities may ultimately be considered appropriate. Various policies acknowledge that the achievement of the Chain of Parks and Sandbelt Project are long term planning outcomes. None of the parties suggested otherwise or that there is any move to change these long term planning outcomes. As such, any discrepancies that exist between the Enterprise Sites policy and the Green Wedge core provisions can be fixed with time and we are not persuaded such discrepancies, in the short term, will unreasonably jeopardise the long term planning outcomes.
40 The Planning Act includes an objective to consider the economic effects of a proposal. This includes the need for a proposal. The State planning policies require responsible authorities to endeavour to integrate the range of policies relevant to the issues to be determined and balance conflicting objectives in favour of net community benefit and sustainable development. There is no doubt the extraction of sand is supported by both State and local planning policies. Mr Molesworth's submission went further by describing this proposal as the extraction of a "valuable" resource. He submitted the proposal will allow up to one million cubic metres of coarse and fine sands to be extracted, processed and then made available for use in Melbourne's construction and horticultural industries. He argued sand is increasingly being sourced from deposits outside the Melbourne metropolitan supply area and this proposal represents one of the last opportunities for sand extraction relatively close to Melbourne. Indeed it is the experience of this Tribunal that much of the future planning for extraction of sand resources for Melbourne is focussed on areas to the south-east of Melbourne and does not contemplate remnant parcels within Kingston to be of major interest.
41 Mr Natoli gave evidence about the benefits of this extraction close to metropolitan Melbourne. His evidence suggests to us that the value of the resource was not so much in the volume of sand but rather its proximity to the Melbourne sales markets, as transport of the product is a major pricing influence for the industry. Thus its value lay in the operator being able to sell closer to his market and provide "competitive value". Ms Lane submitted that Mr Natoli's evidence does not suggest the sand resource on this site is crucial to the construction industry, rather he states it could provide "a useful source in a region which is almost depleted of such resources". We agree. Mr Natoli's responses to a number of questions as to the "resource" value of this site suggested that while this area was once a major source of sand products, this is not the case now. While two to three small parcels of land within the surrounding area remain to "exploited" they do not represent significant volumes compared to past extraction activities in the area or to current production for the Melbourne market (indicated by Mr Natoli to be around 7 million tonnes per year). In effect any extraction of these small parcels, including the review site, would be a "mopping up" exercise.
42 We note in Hy-Tec Industries Pty Ltd v Kingston CC [2005] VCAT 1145, Senior Member Monk commented:
... The Enterprise Site's Precinct can be distinguished from the remainder of the sandbelt because it comprises sites unlikely to be exploited for their sand deposits due to their small size. ....[13]
43 Whilst the submissions and evidence referred to up to one million cubic metres, due to the small size of the site (in comparison to other extractions in the surrounds that are underway or have been completed) and the necessity to incorporate buffer distances around the extraction, the more likely level of extraction is 600,000 cubic metres. The submissions and evidence presented also suggest that this extraction will take place over a period of 4-6 years, which in our opinion is not a very long period of time and demonstrates that the contribution to Melbourne's construction and horticultural industries will be of limited tonnage and duration.
44 It therefore remains for us, in balancing conflicting planning policy objectives to consider the value of the resource to the State's economy against the issues that could arise from the exploitation of the resource. For reasons set out later in this decision, this was one of the matters that we found to be lacking in the applicant's case. While we acknowledge that the site represents a (small) exploitable resource, the degree of management required to address the operational and the very likely post operational environmental issues and rehabilitation use, in our opinion, outweighs the economic benefit to be gained from the extraction of sand.
45 The strategies in the MSS include ensuring appropriate buffers in terms of land use and distance are established around sand extraction and land filling operations "so as to minimise their impact on surrounding residential and sensitive land uses and the overall health and welfare of the community"[14]. The Extractive Industry State planning policy states buffer areas should be determined on the following principles:
•
Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit.
•
Performance standards for the buffer area are set in accordance with requirements of the Extractive Industries Development Regulations 1996 or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry.
•
Activities within land zoned for public use may be taken into consideration in determining the buffer areas.[15]
46 The Council, Mr Ross and Mr Dawson all highlighted the nearby sensitive uses, which include some dwellings and a school. In considering the impacts of the proposal upon their amenity, it must be recognised that they are situated within or adjacent to a Special Use Zone that specifically encourages extractive industry. The Council supports the use of land for extractive industry in this area and, as such, it is inevitable that there will be some changes to the immediate surrounds if this use takes place. The issue is whether these changes (including the amenity impacts of the use) are reasonable. The amenity impacts focussed upon during the hearing were air quality, the traffic and access arrangements, and the visual amenity including landscaping.
47 The Air Quality State planning policy objective is to assist the protection and improvement of air quality and this is to be implemented by, amongst other comments:
... ensure that development is not prejudiced and community amenity is not reduced by air emissions by ensuring, wherever possible, that there is suitable separation between potentially amenity reducing and sensitive land uses and developments. Consideration should be given to Recommended Buffer Distances for Industrial Residual Air Emissions (EPA 1990) to determine the extent of separation.[16]
48 The risk to air quality is a concern in respect to impacts to neighbouring amenity. More specifically it is the risk of airborne particles (dust). This requires consideration of the possible sources of dust emissions, whether they present a risk of adverse impact to neighbouring land uses and how such emissions, if they present such risks, may be managed.
49 Considering first who may be affected by dust emissions, it was submitted by Mr Dawson that the applicant had underestimated the number of occupied residences around the site and that the Christian College to the south-west had not been properly assessed. First, we note the residences nominated by Mr Dawson include existing houses on the review site itself. Mr Molesworth advised it is safe to assume that these residences would not exist if the site were to gain a permit for extraction. The other remaining residences within the vicinity of the site to the west and south are situated between other industry and agricultural enterprises. One of the southern residences (adjacent to the Christian College) is derelict. Nevertheless there appears to be two occupied dwellings to the south-east of the site and one to the west, along with the college to the south-west.
50 We were informed by the evidence of Mr Pollock that through his assessment of wind and stability conditions, the highest risk periods for dust emissions from proposed site operations (i.e. extraction activities / truck movements on haul roads) will be in the light stable northerlies of winter and autumn toward the two residences to the south of the site. Stronger erosive winds are possible with south-westerlies in summer when soils are (potentially) dry and more susceptible to blowing. Under such a scenario, dust emissions would be directed away from the southern residences and the college.
51 Mr Pollock explained the main sources of dust were indicated to be from the working face of the pit and truck movements along the haul roads. Modelling of the proposed stage 1 extraction operations (when the working face is closest to the College and western dwelling and the haul roads are at their longest extent) indicates that applicable criteria for key quality indicators[17] PM 10, PM2.5 and respirable crystalline silica (RCS) are not exceeded at the site boundary except for minor excursions of PM10 onto the adjoining landfill land to the north and east and the road zone to the south-west.
52 We are satisfied with the assessment of possible dust and air quality impact undertaken by Mr Pollock for this site. We adopt his conclusion that through the application of practical dust control measures, the level of dust generation is unlikely to be a source of adverse impact to air quality or health risk to the nearest sensitive receptors.
53 The main entry to the review site for heavy vehicles is proposed at the northeast corner from Deals Road. The transport route from the site is proposed to be north along Deals Road (past Simpsons Road) to the intersection with Ryans Road and then west into Ryans Road to the signalised intersection with Clayton Road. Light vehicle access to the site office and staff parking area will be via an existing crossover to Heatherton Road. Ms Dunstan gave evidence that the proposal will generate a maximum of 164 vehicle movements on a typical day, including 114 trucks. She recommended:
•
Deals Road, between Simpsons Road and the proposed site access point, be upgraded and constructed to an appropriate standard for heavy vehicle use; and
•
The road shoulders within 30 metres of the Deals/Ryans Road intersection should be sealed and strengthened to support turning manoeuvres by B-Doubles and semi-trailers.
54 The Council had no concerns about the proposed access arrangements and the types and volumes of traffic associated with the proposed extractive industry. Similarly, Mr Aspinall advised that VicRoads is comfortable with the traffic analysis contained in Ms Dunstan's expert evidence and did not require any planning permit conditions to be imposed if approval is given for this proposal. However, Mr Umbers submitted The Baxter Group is concerned about the additional traffic (despite acknowledging the road network should be capable of accommodating it) and safety concerns such as trucks requiring the majority of the Ryans/Deals Road intersection to turn the corner; the potential for conflict with Baxter's vehicles; and what the impact will be if the site is used for landfill.
55 The appropriateness of the proposed traffic and access arrangements is well summarised in paragraph 18.5 of Mr Molesworth's submission:
Insofar as traffic generation is concerned, the proposed transport route will not have any impact on any sensitive land use. The intended path of the route prior to joining primary arterial roads is adjacent to land zoned exclusively special use or industrial. The subject site will join a long list of extractive industry and landfill developments that seek to utilise the proximate primary arterial road network that has at least in part grown over time to accommodate their needs.
56 We are persuaded by the evidence of Ms Dunstan and the support by the Council and VicRoads that the traffic and access arrangements are appropriate. We adopt Ms Dunstan's conclusions that the proposed transport route and use of the Ryans/Clayton Road intersection will safely and efficiently accommodate the increased traffic resulting from this proposal.
57 The Extractive Industry particular provisions require no alterations to the natural condition or topography of the review site within 20 metres of the boundaries unless planning approval is granted (but this is not applicable to bund walls or landscaping). The particular provisions also require shrubs and trees to be planted and maintained to screen activity on the site to the satisfaction of the Council and, upon review, this Tribunal.
58 The proposal is to provide buffers of 20 metres in depth along the Clayton and Heatherton Road frontages. Within these areas, the first 4 metres (from each street frontage) will be landscaped in accordance with the landscape perimeter planting plan prepared by Ms Frank-Mas; the next 12 metres will contain a temporary grassed bund reaching a height of 2 metres; and the last 4 metres will contain a maintenance access track and drain.
59 The MSS nominates the improvement of the rural landscape character along main roads as a key issue within its non-urban areas[18]; and the Enterprise Sites local planning policy[19] includes the following policy statements:
•
The appearance of new development provides high standards of urban and landscape design which improve the landscape character of the non urban area and make a positive contribution to the visual quality of the Heatherton Road and Boundary Road corridors. ...
•
Sensitive landscaping treatment be provided in all new development which complements the surrounding landscape character and has regard to any remnant stands of native vegetation. Landscaping endeavour to restore positive elements of the locality's former ecology and landscape.
19.1
With the introduction of continuous buffers, a perimeter bund and indigenous planting the proposal will transform the subject site from its current state to one which will achieve improved visual amenity and environmental outcomes.
19.2
The extraction and processing operations will be screened from the sensitive external views on the south and western boundaries of the subject site. A Heathy Woodland consisting of canopy trees, screening shrubs and grasses will deliver an environmental outcome that complements the planting of locally indigenous species that has taken place in surrounding locations.
61 We agree with Ms Frank-Mas' evidence that the species selection is appropriate as it is generally based upon locally indigenous species found in the nearby Grange Reserve. In order to achieve this outcome, she stated it will be necessary to use local tube stock and this means the visual appearance of the site will be of a grassed bund for at least a couple of years, with the views of the bund starting to be filtered in 3-4 years. In 5 or more years, the foreground vegetation will then dominate the view.
62 The purpose of requiring landscaping in the Extractive Industry particular provision is to screen activity on the site. It is unfortunate, but inevitable that the limited lifespan of the proposed extraction (i.e. 4-6 years) generally corresponds with the time it will take for the landscaping to mature sufficiently to dominate the view from Heatherton and Clayton Roads (5 or more years). None of the parties suggested the 2 metre high bund walls will be insufficient to screen activity on the site. We accept that, overall, the proposed landscaping on the review site will provide a functional landscape and contribute to an improved vegetated character of the non urban area. From this point of view, the proposed landscaping will provide a positive contribution to the visual quality of the Heatherton Road and Clayton Road corridors.
63 In response to Mr Ross' cross-examination, Ms Frank-Mas acknowledged part of the rehabilitation of the site could include additional landscaping to a total width of 14 metres once the bunds are removed. We are not persuaded that, if extraction were to proceed, additional landscaping is necessary or warranted, particularly given the review site is included in the Enterprise Sites local planning policy that promotes innovative, well designed development compatible with the Sandbelt Open Space project but offering a range of rural, recreational, and tourism related opportunities.
64 Ms Frank-Mas gave evidence that one Coastal Banksia tree along the Heatherton Road frontage, and adjacent to the existing car parking to be maintained at the eastern end of this frontage, should be retained. We note from the aerial photographs provided of the site that this tree appears to be located either on the edge of, or within, the proposed extraction area. Mr Molesworth acknowledged its exact location is a little unclear and protection measures will need to be put in place to retain this tree, including modifying the extraction area if necessary.
65 In conclusion, we accept the review site can accommodate suitable landscaping albeit it is likely the visual benefit of the landscaping will not be achieved within the lifespan of the proposed extraction. The provision of a 4 metre wide landscape strip adjacent to Heatherton and Clayton Roads is sufficient both during and post extraction.
66 This brings us to the rehabilitation of the review site, which was the most debated issue by all parties during the course of the hearing. The proposed rehabilitation plan[20] is to maintain the outer landscaped buffer zones, provide a battered edge to the extraction area and leave the balance of the extraction hole as a "water filled" excavation. This was criticised by the Council and respondent objectors. The Council argued an "appropriate and reasonable post closure rehabilitation plan" is required. The planning application documentation and the work plan also state an end use alternative is a landfill, for which, it was submitted, this site has "tacit approval"[21]. Council disagrees in respect to this "tacit approval" and seeks more definitive and extensive rehabilitation than the "water filled" pit or landfill alternative.
67 The need to address rehabilitation as part of a proposal to extract a resource is contained in the EID Act and various provisions in the Planning Scheme:
•
The EID Act states a rehabilitation plan must take into account any special characteristics of the land, the surrounding environment, the need to stabilise the land, the desirability of returning agricultural land to a state that is as close as reasonably possible to its state before extraction, and the need to protect or conserve native vegetation and protected flora and fauna[22]. [Emphasis added]
•
The EID Act allows conditions to be imposed about rehabilitating land to a safe, stable and visually acceptable condition and the time when rehabilitation work must be commenced or completed[23];
•
The purpose of Special Use Zone Schedule 2 encourages rehabilitation that minimises adverse impact on the use and development of nearby land;
•
The decision guidelines of the Extractive Industry particular provision require consideration of the ability to rehabilitate the land to a form or for a use compatible with the natural systems or visual appearance of the surrounding area, and so it can be used for a purpose(s) beneficial to the community;
•
The MSS states the filling of extraction pits needs to be coordinated under the regional waste management strategy to ensure that rehabilitation is well planned[24] and productive after use occurs in a logical sequence[25]. Planning for the rehabilitation and after use of extractive industry sites are two of the key issues for non urban areas is[26]. Strategies[27] to address these issues set out to:
•
Manage existing extractive industries and land filling operations in an environmentally sound and coordinated manner until they are completed.
•
Require the coordinated phasing of extraction, filling and rehabilitation cycles in accordance with the South East Regional Waste Management Strategy, to ensure that the development of open space and other productive after-use occur in a logical sequence. Development which might prejudice the achievement of long terms strategies for these sites will not be permitted.
•
Promote the re-use of extraction and land fill sites for open space and recreational facilities which are physically well integrated with the Chain of Parks. Consider commercial and industrial enterprises which make significant contributions to the chain of parks concept and result in a net community benefit.[Emphasis added]
•
The Sandbelt Open Space Project local planning policy objectives include promoting rehabilitation and conversion of extractive industry/landfill sites to open space or other productive after uses compatible with the project.
68 Thus when the requirements of the EID Act are read in conjunction with relevant planning policy, it is both appropriate and a requirement that rehabilitation address the long term strategic planning/policy view of the review site's future use so it can be used for a land use/purpose beneficial to the community.
69 Mr Molesworth submitted DPI has assessed the rehabilitation plan in the draft work plan and found it to be satisfactory, including its contemplation of two possible future uses - a water filled excavation or a landfill. As outlined above, the criteria to be assessed under the EID Act is not, in our opinion, as detailed or as far reaching as the criteria to be considered under the provisions of the Planning Scheme. The EID Act requires rehabilitation consistent with the site and surrounds to a state that is stable[28] and takes into account if it was agricultural land, or contained native vegetation or protected flora and fauna. We find this degree of rehabilitation relates to the immediate "after life" of extraction and does not deal with the long term rehabilitation and after use objectives articulated in the planning policies of the Planning Scheme.
70 This point was emphasised by Mr Dawson as he highlighted the number of closed extraction holes in the immediate surrounds that have not been rehabilitated beyond being made stable and safe[29]. Mr Dawson rhetorically asked the question as to whether it is a good planning outcome to add yet another hole into the mix.
71 Mr Molesworth accepted in his submission that both the EID Act and the Planning Scheme are concerned to ensure rehabilitation is addressed when the extraction of a resource is proposed. The Council relied upon the decision by his Honour, Morris J in Malcolm McClure Pty Ltd v Greater Bendigo SC [2004] VCAT 1005 ('the McClure case') and submitted its approach in this case is entirely consistent with what his Honour said, being:
37 There has been a tendency in the past for rehabilitation to be left to those administering extractive industry legislation, rather than being the concern of those responsible for town planning. For my part, I believe rehabilitation is extremely important; and extremely important to long term land use planning. Hence it is crucial, at least in the circumstances of this case if not generally, for rehabilitation issues to be subject to the town planning permit.
38 A traditional method of rehabilitating a former quarry has been to use it for landfill. This may often be appropriate. However in the present case, on the evidence before me, it would be decidedly inappropriate. The size of the hole to be created is unlikely to be large enough to justify a modern landfill. The site is certainly too close to a neighbouring rural residential area to be used for putrescible landfill. Moreover the nature of the extraction proposed in the present case leaves open preferable options than landfill. Because I have formed this view, and noting the concern of residents in relation to this issue, I will impose a specific condition to the effect that any final rehabilitation plan prepared for the subject land must not be based upon the future use of the land for the purposes of landfill.
39 It is possible that the best long term future for the land is simply bushland. On the other hand, if the link road is built, the land might be better used for industrial purposes. Indeed, this seems to be the recommendation of the authors of the East Bendigo Local Structure Plan. In these circumstances, I believe it is desirable to leave open the nature of the final rehabilitation, to be determined by the responsible authority in due course. However it will be necessary for this to be determined at least 18 months before the completion of extraction.
40 As a matter of principle, the person who wins a resource in an extractive industry operation ought be responsible for rehabilitating the site, in a manner which is acceptable to the community, following the completion of operations. There was once a time when those who won a resource simply walked away. That time is in the past. Indeed, I believe it is appropriate to insist that the person who wins the resource guarantees that the rehabilitation will take place, even if it is actually carried out by a public authority. A condition to this effect will be imposed.
72 Mr Molesworth submitted the primary concern in relation to rehabilitation that emerges from both the order made and his Honour's reasons is the need to ensure that rehabilitation would take place. In this case, Mr Molesworth stated the Tribunal must be satisfied that the land can be rehabilitated and that it will be rehabilitated and referred to the Second Reading speech for the EID Act where it states:
... The extensive periods of time involved in the completion of quarrying operations usually mean it is not feasible to state at the application stage what the end use of a particular site may be. An approved work plan will nevertheless specify a range of end use options. At the completion of quarrying operations the end use proposed for the site including any landfill operation will be subject to the planning process.[30]
73 Mr Molesworth also referred to the decision by Senior Member Monk and Member Terrill in Geary v Bendigo City Council[31] ('the Geary case') where they accepted evidence presented that rehabilitation techniques are constantly evolving with improvements and it would therefore be inappropriate to "set in stone" the precise details as to how rehabilitation should be carried out. Mr Molesworth submitted taking a prescriptive approach to the rehabilitation of this site would run the risk of compromising the identification of the highest and best use of the site for rehabilitation, as what may be perceived as best practice now might by outmoded in 2, 6 or even 10 years.
74 We disagree with the emphasis drawn by Mr Molesworth from his Honour's decision in the McClure case and the parallels to be drawn from the Geary case. It must be remembered that this extraction proposal is relatively small in scale and has a limited life span of 4 to 6 years. Further, the review site is set in a semi-urban environment with more complex rehabilitation demands arising from planning policy. We consider the emphasis of Morris J in the McClure case relied upon by Council is the correct view, i.e. the rehabilitation of the quarry pit must take into consideration of the existing and future planning context (as it is can be understood) at the time of the permit application. We are not persuaded the time for extraction is extensive (as per the Second Reading speech) or that the highest and best use of this site is likely to change significantly from being an 'enterprise site' over the next 6 or 10 years. As we stated earlier in our reasons, the discrepancies between the Green Wedge provisions and the Enterprise Sites local planning policy are not significant and can be fixed over time to achieve the Chain of Parks and Sandbelt Project, which are and in all likelihood will continue to be, in our view, long term planning objectives for this area.
75 Essentially the argument put on behalf of the permit applicant is the rehabilitation of the review site should be staged and the approval of this proposal for extraction should be subject to the first stage of such rehabilitation, the creation of a "water filled" pit. Another stage of rehabilitation could then be landfill, and a third stage of rehabilitation could involve some particular end use or development. Alternatively it was also suggested by Mr Molesworth that the site may become a stormwater basin for use by Melbourne Water. The question for us is whether a staged rehabilitation process is appropriate bearing in mind that only the first rehabilitation stage is definitively proposed as part of this planning application and there remain a number of uncertainties as to further rehabilitation options.
76 It is clear to us that there remains a degree of uncertainty as to the quality and quantity of water that can be expected to accumulate in the "water filled" pit. There is therefore a corresponding level of uncertainty as to the level of management required to address such issues. Mr Molesworth sought to ease any concerns we may have on these matters by highlighting that technology is available to manage water quality issues. We accept that proven technologies are available and can be implemented if needs be. Our concern relates more to the degree that such technology would be required, or put another way, the intensity of management that may be required to implement and manage any remedial action remains uncertain. We therefore are concerned that the level of management may be onerous and outweigh the benefits to be gained from the sand extraction.
77 Section 4(2)(d) of the Planning Act provides that the objectives of the planning framework shall "...ensure that the effects on the environment are considered and provide for explicit consideration of social and economic effects when decisions are made about the use and development of land". Perhaps more pertinently at s.60(1)(e) the Planning Act requires a responsible authority (and now this Tribunal) to consider:
Any significant effects which the responsible authority considers the use or development may have on the environment or which....the environment may have on the use or development.
78 The State planning policies highlight the importance of contributing to the protection of water quality and that planning should adopt best practice environmental management and risk management to avoid or minimise environmental degradation[32]. A similar outcome is sought in the MSS, including integrated catchment planning and giving priority to proposals which improve water quality[33].
79 It is apparent from the expert evidence that the exposure of groundwater by the act of creating a sand extraction pit will influence groundwater conditions. The groundwater conditions will, in turn, influence the future rehabilitation and land use of the site.
80 We accept the evidence put before us that management of water quality and groundwater inflow matters particular to the operation of the site as a sand extraction pit can be dealt with through a variety of proven technologies and management regimes. This was not seriously contested, although we note that the small scale of this sand extraction operation and likely costs to undertake an extensive management program, including issues such as generation of acid sulphate water, may present some challenges.
81 It is our concern that the future rehabilitation of the site is influenced by the resulting groundwater / pit water conditions. This level of concern is heightened by what is in our view an unacceptable degree of uncertainty about these (future) conditions. It would be a poor planning outcome to allow the extractive use which results in an ongoing and unacceptable burden on future generations. This could not be construed as orderly planning or meet the objectives of the planning scheme or the Planning Act.
82 Turning then to the facts as were outlined by the various experts, there are two aspects required to be considered: the depth to groundwater; and groundwater quality.
83 There is agreement between the groundwater experts that the pit will extend below the current groundwater level (estimated to currently be some 10-12m below the surface). There remains however some uncertainty as to what this future groundwater level will be. There are a number of current and ongoing influences on this level that may or may not continue. Why is this important? It is important for a number of reasons. Accepting (for the purposes of this discussion) that the current Environment Protection Authority (EPA) policy continues to avoid placement of putrescible or even solid inert landfill below the long term undisturbed watertable, the depth to the watertable will therefore influence the volume of clean fill required to back fill the void to be above the watertable and therefore the available airspace for other landfill. A shallow watertable, in Mr Parker's opinion, will reduce the available void space for landfill and possibly result in landfill operations being uneconomic unless airspace can be gained above ground level. Such a scenario requires a large volume of clean material to fill above the watertable and so subjects the possible landfill development to the many vagaries (outlined by Mr Parker and other witnesses) of sourcing such clean material. Further consideration of other landfill options are discussed below. For the moment it can be seen from this one example the importance of knowing where the groundwater level will be in order to commence planning for rehabilitation and understanding the ramifications with respect to what type of operations and what design is required for the rehabilitation.
84 An alternative rehabilitation of the site as a lake, or stormwater storage basin is also subject to the vagaries of the area's groundwater level and quality and hence possible quality of the water within the pit.
85 Assuming that rehabilitation as per the work plan is adopted, what issues does this present? This requires consideration of the quantity and quality of the water accumulating in the pit and what impact to the environment (and possibly health risk) such a body of water may present.
86 In respect to quantity, Mr Ellis relied on the water balance prepared by HLA Envirosciences[34]. This water balance suggests around 20 to 30 mega-litres (Ml) of water would be captured on an annual basis in the pit at the end of the last stage. For a pit area of approximately 7ha, this amounts to no more than 1-2m of water across the floor of the pit, a pit some 20m deep. It is our view that this water balance is somewhat simplistic and does not provide information on the longer term groundwater inflows post sand extraction. It is our observation from the site inspection of the area, that existing pits in the area (not subject to landfill operations) display relatively deep holes with water at some depth below surface. Such an appearance is consistent with the reported deep groundwater levels referred to by Mr Ellis and Mr Ife. The evidence points to a site that would fill with groundwater to similar low level and could by no means be construed as a lake or other similar attractive body of water.
87 It was the agreed position of Mr Ife and Mr Ellis that the pit water quality will largely reflect the quality of the groundwater inflow. (This assumes controls are in place to prevent surface water inflows from all but limited areas within the site.) While there was some contention amongst the experts that the local groundwater contains a range of contaminants from the historical land filling of old sand pits up flow of the review site, it is apparent that, at the very least, one can expect ammonia and other nutrients to be present.
88 Additional water quality impacts may also arise from oxidisation of exposed sulphide minerals (resulting in acid sulphate waters) as well as increasing salinity from evaporation of groundwater over drier periods. We do not accept the contention of Mr Ellis that increases in salinity will not be adverse or tend to plateau. Logic decrees that with evaporation and continued inflow of groundwater there will be concentrations of nutrients, salts and other contaminants, not withstanding some occasional dilution by rainfall. We consider that such matters have not been sufficiently assessed and we are not persuaded there is justification for adopting the position put by Mr Ellis. Indeed we are surprised that not only the salinity but other issues of onsite groundwater quality were not investigated more thoroughly given the potential for an unsightly, unpleasant and increasingly stagnant body of water to develop.
89 We accept that the some of the more likely groundwater quality issues that could arise (such as acid sulphate water generation or elevated ammonia) could be managed through existing technology. However, it is apparent from the expert evidence and cross examination that site specific assessment work has not been undertaken to quantify with any degree of certainty the behaviour and character of groundwater that would be intersected by the pit. Thus it is difficult at this point in time to define with an acceptable degree of certainty, the extent of management necessary to address environmental risks that have in our opinion a high likelihood of arising. To merely put up a fence to stop people being exposed to contaminated groundwater (as was suggested) or landscaping to screen out an unpleasant view is not an acceptable outcome when the problem could be avoided in the first place by not allowing extraction below the water table. Similarly, the lack of detail as to ongoing management of the pit water does not address the possible impacts back on the groundwater system or future uses of the site.
90 It follows that we are not satisfied that the groundwater conditions of the site have been satisfactorily assessed. As a result there is an unacceptable degree of uncertainty as to the influence a body of stagnating groundwater at the base of a deep pit will have on the future use of the site. Mr Molesworth expressed the opinion that it is "unnecessary and premature" to assess these matters in any detail, in particular with respect to the rehabilitation. He relied instead on the advice of the experts that such matters can be incorporated into an environmental management plan responding to particular issues as they arise through the use of existing technology. With respect, we disagree. State and local policy as well as the State Environmental Protection Policy for Groundwaters of Victoria[35] set out that these matters should be adequately assessed at this stage to ensure a proposal such as this has the capacity to redress particular issues as they arise or satisfy the responsible authority (and now the Tribunal) that such issues will not arise.
91 It was Melbourne Water's submission that the site, or part thereof, may be considered appropriate for incorporation into a regional drainage scheme. This scheme is required due to large volumes of urban runoff from the north of the site[36].
92 Mr Boniface submitted that under extreme rainfall events, drainage flows of some 5m3/sec have been estimated to pass through the review site and generate up to 44Ml of water. Melbourne Water estimates that a basin area of 7ha is required to detain and manage this flow along with the estimate of groundwater volume in the pit. Such an area would be available if the pit were to be left in place (the work authority area being 7.97ha[37]). However, Melbourne Water has indicated that a deep water basin would not be satisfactory for water quality management reasons and a shallower basin would be preferred with controlled discharge of detained water. This returns us to the issue of at least part filling the pit to achieve a shallow basin and the quality of the water contained in it if it were to be discharged.
93 The possible use of the site as a stormwater basin is therefore uncertain, being subject to satisfactorily addressing the matters raised in respect to the area and depth of the pit, groundwater levels and groundwater quality. Further, Melbourne Water was quick to point out during the hearing that a drainage scheme for this area is in its infancy and will require discussions/negotiations with Council and affected land owners. As such, we have given this option for future use limited consideration or weight.
94 The applicant relies on the rehabilitation of the site as set out under the work plan, essentially a pit containing water. In response to Council's criticism to this plan, the applicant has also indicated that a future end use may be a landfill. It is important to remember however that this application is not for a landfill and a landfill is but one option that might be considered at some future time. Nevertheless the applicant and its experts place considerable weight upon this as a serious rehabilitation option; hence we feel it is necessary to consider its potential.
95 Before considering the submissions of the parties and expert evidence in relation to the landfill option, it is appropriate to have regard to the EPA's Waste Management Policy - Siting, Design and Management of Landfills (the Landfill Guidelines). This guideline sets out, amongst others, the following matters:
...ensure their regional plans are consistent with and assist in the implementation of the policy, including minimising the development and use of landfills;
...work in partnership with municipal councils and any other relevant agencies in the strategic planning, siting, and management of landfills to achieve the highest practicable level of protection of people and the environment[38].
Operators of landfill sites will site, design and manage their landfill to ensure the protection of all beneficial uses of the environment.[39]
In developing a schedule for the proposed sequence for filling of available landfill sites, as required by the Act, each regional waste management group must consider the potential to utilise landfill airspace available in surrounding regions.[40]
All new landfill sites must deposit waste at least two metres above the long term undisturbed depth to groundwater, unless the:
(a) landfill operator satisfies the Authority that sufficient additional design and management practices will be implemented; and
(b) the Authority determines that regional circumstances exist that warrant the development of the landfill.[41] [Emphasis added]
96 It is apparent from this guideline that ongoing development of landfills is in fact to be minimised. If landfills are required the regional waste management groups are required to consider relevant environmental siting issues as well as available landfill airspace and to apply the principles of achieving the "highest practicable level of protection" to human health and the environment. Given these guidelines we agree with the evidence of Mr Parker that the use of this site as a landfill is by no means a certainty.
97 We concur with Mr Molesworth submission that the policy on landfills is a dynamic one, but perhaps not in the manner he suggested. The relevant regional waste management plan is being reviewed. It was suggested that this site could well be incorporated into the new plan. References made to the existing regional waste management plan indicate that the review site was considered to be a prospective site and therefore there was some credibility to the suggested landfill rehabilitation option. To be frank, we consider this to be an overstatement of the importance of this site in the existing regional plan. The simple fact is this plan indicates there are a number of sites already in operation in the immediate area and more broadly in the region. Equally, a number of other sites are "prospective" landfill sites with greater capacity than the subject site and they may or may not offer better economies of scale to provide for the "highest practicable level of protection" amongst other requirements. We therefore conclude that this site is no more than a "prospective landfill" site and we are not persuaded such a prospect can be considered a fait accompli.
98 Further to this, Council tabled a letter from the EPA in response to this proposal (including the landfill option) expressing the Authority's strong opposition to the site being used as a landfill. While various submissions were made in relation to the possible flexibility in the EPA's position on this site/proposal in the future, such speculation remains just that. It was the evidence of Mr Ife and Mr Parker that, even if the EPA were to consider the site for solid inert waste landfill, past history would indicate that stringent engineering "of a belts and braces" approach would be likely. Such a tightly engineered approach could cast some doubt over the economic viability of this use especially if the volume of airspace was reduced by higher than anticipated groundwater levels or reductions in the available (above ground) capping height. That some restriction on the height of a landfill cap may occur is consistent with the strategic location of this site, its recognised value as a highly visible site and policy supporting future land use as an enterprise site.
99 In addition to the above considerations Ms Lane submitted that up until quite recently, leaving extraction holes might have been viewed as an acceptable means to achieve the Sandbelt Project given the then level of demand for landfill. However, the landfill demand has reduced (in line with waste reduction programs) and this presents significant land use planning challenges for the extractive industry as a whole. She argued this situation of reduced landfill demand now requires full rehabilitation of land post extraction within a reasonable timeframe. It was her contention that full rehabilitation contemplates more than securely fencing off a water filled hole with no certainty it will ever be land filled.
100 The Council suggested (if a permit is granted) a draft rehabilitation condition requiring the excavated pit to be clean filled within 3 years of extraction ceasing and a section 173 agreement requiring a bank guarantee for the estimated cost of the works be provided as security. This condition was imposed in a form that is generally consistent with the rehabilitation conditions imposed in the McClure case. However, from the expert testimony of particularly Mr Parker, it is apparent to us that compliance with such a condition could prove difficult as the sources of clean fill are dependant on a number of variable factors resulting in inconsistent supply of such material.
101 We agree with his Honour Morris J that rehabilitation of extraction sites is extremely important, particularly to long term land use planning. The long term land use strategic policy directions in the Kingston Planning Scheme are quite clear for this green wedge area. The Chain of Parks and Sandbelt Projects form part of these strategic directions and there was no debate that the open space corridor to be created through this area remains a long term goal. This site is not, and has never been, part of the proposed open space network. Rather it is adjacent to it and hence has been proposed for some supporting type of land use in accordance with the Enterprise Sites local planning policy. We acknowledge there are discrepancies at present between the Green Wedge provisions and this policy, but we are of the view such discrepancies are short term and can be addressed through the structure planning required for this specific green wedge area. In our opinion, these discrepancies are not significant and do not undermine the long term land use planning outcomes sought.
102 Neither the EID Act nor the Planning Scheme talks about a staged rehabilitation process. The EID Act appears to focus on the necessity to ensure the land is safe and secure at the end of the extraction process, whilst the Planning Scheme focuses upon rehabilitating land in a form capable of providing for a suitable end land use. We are not persuaded a water filled excavation fulfils these aspirations. We are also not persuaded that the void can be or will be used for landfill; and we do not agree that there is any tacit approval for such a land use on this site. Further we remain unconvinced that the conditions of water within the pit have been adequately assessed as to the degree of ongoing management required to address possible amenity and environmental risks. Given this, we find the proposed rehabilitation of the site does not adequately address the rehabilitation objectives and strategies in the Planning Scheme, and the proposed extraction should therefore be refused.
103 Whilst we have determined that this proposal has not adequately addressed the rehabilitation objectives and strategies in the Planning Scheme and the proposal should be refused, we are cognisant of the submissions made about what permit conditions should be imposed particularly given the involvement of referral authorities such as the EPA and the Department of Primary Industries (DPI). As such, we are of the view it is necessary to make some findings on these submissions.
104 In this case, the work plan has been approved by DPI with draft conditions that would be finalised by DPI if planning approval was given. Mr Molesworth submitted there should not be a doubling up of conditions imposed by the Council and the referral authorities. He referred to the decision by Deputy President Gibson and Member Mainwaring in SITA Australia Pty Ltd and PWM (Lyndhurst) Pty Ltd v Greater Dandenong CC [2007] VCAT 156[42] ('the SITA case') where they summarised the findings of other divisions of the Tribunal about the imposition of conditions, including the need to consider the best method to achieve an outcome and that there is no need to apply conditions comprehensively dealt with by other legislation or regulation. In the SITA case, the Tribunal found, as a general principle, a planning permit for use or development should not attempt to control the specific aspects controlled by an EPA licence or works approval but rather it should state the use or development must in accordance with the relevant licence or works approval (as amended from time to time).
105 We agree with the views expressed in the SITA case but draw the distinction of the relationship between planning approvals and works approvals in that case and the approval process in this case. The Second Reading speech on the EID Act illuminates the intended relationship between the work authority, work plan and planning permit:
Applications to undertake extractive industry operations will in future be through the planning process.
The Department of Agriculture, Energy and Minerals will be a referral authority and will advise the responsible authority whether a satisfactory work plan has been lodged. The department will also recommend to the responsible authority any conditions that should be placed on the planning permit, if granted.[43]
106 In this proposal, discussion on the draft conditions focussed on the relationship between the DPI draft work authority work plan conditions (the draft work plan conditions) and the Council's suggested conditions. Mr Natoli explained that the draft work plan conditions will be refined and finalised by DPI following the grant of the planning permit. The submitted DPI draft work plan conditions[44] contain general conditions relating to slope stability, fencing and security, roads, surface disturbance, drainage, erosion, emissions, etc. They address specific aspects of the extraction operation that should be controlled by DPI. Some overlap is apparent however as DPI and the Council have both drafted conditions addressing parking provisions, landscaping and rehabilitation.
107 It seems to us that the process of DPI refining their draft work plan conditions upon receipt of the permit conditions (if a permit were to issue) is in line with the intentions of the EID Act. Further where there are conflicts in interest, it is the planning permit which should take precedence as this is, by the requirements of the amended EID Act, the primary approval process and approval mechanism by which conditions are to be set. However this is not to say the draft work plan conditions should be discounted as they do form part of the advice provided to the Council. In particular, the responsibility for setting out the nature of the rehabilitation plan, while initially set out in the draft work plan, may be refined in the planning process as part of the permit application. This is set out in s.31 of the EID Act:
The holder of a work authority must rehabilitate land in accordance with the rehabilitation plan approved by the Department Head, the conditions in the authority and the requirements of the relevant planning scheme and any planning permit. [Emphasis added]
108 It does not follow however that the responsible authority sets or manages the rehabilitation bond. This is set out in s.33 of the EID Act as being the responsibility of the Minister administering the EID Act. However, in determining the amount to set as bond, under s.33(b) the Minister must consult with the relevant municipal council if the subject land is in private ownership. How such consultation is to be undertaken is not explained, and one possible means could be through the setting of conditions within a permit. We see no conflict in this approach; however careful wording of the permit would be required to avoid the Council from unnecessarily duplicating the bond setting process. In other words, the bond could be set in either the permit or the work plan authority or both, but it needs to be determined by DPI and the Council in consultation with each other.
109 Mr Molesworth submitted preference should be given to the conditions imposed based on the expertise of DPI (as was given to the EPA in the SITA case). He stated Council should not be allowed to usurp, or at the least double up, the statutory role of DPI.
110 Whilst we agree that technical matters are best dealt with by the relevant authorities such as the EPA or DPI, the work plan conditions are draft only and lack any integration with the planning conditions, the primary condition setting mechanism process under the EID Act. The Second Reading speech makes it clear that all factors and interests are to be considered in the planning approval process, which suggests to us that the planning permit conditions must necessarily address the relevant factors and interests and this may involve some integration or crossover between the specialty areas of DPI and the overall planning outcomes sought by the Council.
111 Evidence to support the integration or crossover of the planning and work authority conditions can be found in section 24A of the EID Act. This allows for the holder of a work plan authority to seek a review of a condition imposed unless the condition is substantially the same as a condition of the planning permit or the decision to impose the condition has already been the subject of review by the Tribunal. Given this, we find there needs to be a coordinated approach between the relevant authority and the Council, but see no reason why there cannot be integration or crossover in the imposition of conditions. In support of this coordinated approach it would be our observation that a more active role in the planning process by the DPI (and, where relevant, the EPA) would assist all parties and perhaps reduce the confusion.
112 We agree however that the doubling up of conditions is unnecessary and adopt the findings of his Honour, Morris J in the McClure case:
42 It is important to observe that the conditions of the permit must be observed and will not be overridden by any conditions in a Work Authority. I was provided with certain draft conditions which might be included in a Work Authority for the land. With respect, these draft conditions seem to have been the product of some standard formula, rather than being tailored to the circumstances of the case. It would be better when consideration is given to this matter to revise, and reduce, the conditions on the Work Authority. For example, there might be a condition to the Work Authority requiring all the conditions of the planning permit to be observed; and then supplementing this with any additional conditions that are strictly necessary, and which deal with matters that are not encompassed by the planning process. There is no need to duplicate planning permit conditions.
113 That is to say the planning process is the mechanism by which the detail of the extractive industry will be worked through and planning conditions set specific to the site's conditions, context and planning requirements. The work plan conditions need not duplicate these conditions, but simply refer to them and where necessary supplement them with conditions as may be required to deal with matters not addressed through the planning process.
114 The planning policy framework places a strong emphasis upon the need to rehabilitate an extraction site in a manner which is acceptable to the community. The suggestion that rehabilitation should be staged with this permit effectively giving approval to a fenced off water filled pit is not an appropriate or acceptable form of rehabilitation for this site. The long term land use planning for this site is for it to be developed and used as an enterprise site. We are not persuaded the proposed excavation, the limited rehabilitation works, the uncertainty regarding the water quality and quantity, and the ongoing management required for the water body will facilitate this outcome. We find the benefits of this site being operated as a sand extraction pit and then, possibly, as a landfill (i.e. the need for these activities) do not outweigh the potential environmental impacts and the inability to facilitate appropriate and acceptable future land use outcomes consistent with the planning policy framework.
115 It follows from the above that we affirm the Council's refusal of the permit.
For the above reasons, the decision of the Responsible Authority to refuse to grant a permit is affirmed. It is ordered that no permit be issued.
[1] Refer to Directions issued by the Tribunal on 27 October 2006 that dealt with this and other preliminary matters.
[4] Draft Implementation Plan 5 Green Wedges (October 2002)
[5] Exhibit RA-18 states a framework plan is being undertaken for the land north of Kingston/Heatherton Road and a plan for the balance of the non urban area will be completed once this framework plan is completed.
[6] Extract from Exhibit A-55 which is a copy of the Second Reading Speech by the then Minister for Finance Hon. R. M. Hallam on 3 October 1995.
[8] Refer to objective 9 and its strategies in clause 21.10
[9] Refer to the local planning policy at clause 22.03
[10] Refer to Exhibit RA-11, the Sandbelt Open Space Project Development Plan, Melbourne Parks and Waterways (May 1994) which is a reference document in the Sandbelt Open Space Project and Enterprise Sites local planning policies
[11] Extract from section 7.11 of the Sandbelt Plan 1994
[12] Refer to Exhibit RA-16 Hy-Tec Industries Pty Ltd v Kingston CC [2005] VCAT 1145 and Exhibit RA-13 Materials Recycling in Green Wedges, Heatherton and Clarinda Materials Recycling and Transfer Station Applications for Review Advisory Committee and Panel Report, June 2005
[13] Refer to paragraph 17 of this decision
[14] A strategy under objective 3 in clause 21.10 of the MSS
[17] PM10 and PM2.5 are particles of equivalent dynamic diameters of 10 microns and 2.5 microns respectively.
[20] Figure 6 in the draft Work Plan (Exhibit A-45)
[21] Wording contained on page 20 of the draft Work Plan (Exhibit A-45)
[22] Refer to section 32 of the EID Act
[23] Refer to section 20 of the EID Act
[25] Refer to the strategies of objective 3 to clause 21.10 of the MSS
[27] Refer to clause 21.10-2 of the MSS
[28] The Second Reading Speech of the EID Act (Exhibit A-55) states the government is committed to ensuring quarries are rehabilitated to a safe and stable landform.
[29] Mr Dawson tabled photographs of existing holes as Exhibits D-30, D-31, D-32, D-33 and D-34
[30] Extract from the second page of the Second Reading speech (Exhibit A-55)
[31] (1996) 17 AATR 261 at 282 (Exhibit RA-27)
[34] Refer to Appendix 4 in Work Plan Application for Extractive Industry Work Authority No 1246 Baguley Site Heatherton Road prepared by Bell Cochrane & Associates, 16 June 2005
[35] Specifically clause 5, 12 and 20 of the SEPP relate to protection of groundwater quality and clause 14 requires such matters to be considered by planning authorities in permit applications.
[36] Mr Boniface highlighted that the development of landfills around the area was anticipated to increase storm runoff because of the design of landfill caps to shed water.
[37] Refer Figure 3 in Work Plan Application for Extractive Industry Work Authority No 1246 Baguley Site Heatherton Road prepared by Bell Cochrane & Associates, 16 June 2005.
[43] Extract from Exhibit A-55 which is a copy of the Second Reading Speech by the then Minister for Finance Hon. R. M. Hallam on 3 October 1995.
Clayton Sands Pty Ltd
Kingston CC [2007] VCAT 766