EMGA Mitchell McLennan Pty Limited v Byron Shire Council

The site and background

1. The site comprises eight adjoining allotments as follows:

• Lot 1 DP 123302 (27.70 ha);
• Lot 1 DP 245836 (0.01 ha);
• Lot 1 DP 184443 (22.72 ha);
• Lot 1 DP 245605 (0.06 ha);
• Lot 2 DP 245836 (1.05 ha);
• Lot 3 DP 245836 (0.01 ha);
• Lot 5 DP 245836 (0.42 ha); and
• Lot 6 DP 245836 (0.35 ha) Broken Head Road, Suffolk Park.

1. The whole site has an area of 52.32 ha, with 24.61 ha on the eastern side of Broken Head Road and 27.71 ha on the western side of Broken Head.
2. The site presently contains the Broken Head Quarry where approximately 22 ha has been disturbed by existing and past quarrying activities. The quarry contains a series of ponds, stockpiled sand and gravel, machinery sheds, and a weighbridge. The area outside of the quarry remains heavily vegetated.
3. The site is located to the south of Suffolk Park where development is characterised by rural residential and hinterland housing at low densities.
4. An application to extend the life of the Broken Head Quarry was the subject to a Commission of Inquiry (Carleton 1998) that was completed on 23 July 1998 and which recommended the expansion of the quarry to the Minister in October 1998, subject to conditions. The application was accompanied by an Environmental Impact Statement (1997 EIS) and a Species Impact Statement (1997 SIS)

Relevant planning controls

1. The current applicable environmental planning instrument is Byron Local Environmental Plan 2014 (LEP 2014). The site is partly within Zone RU1 Primary Production with the remainder of the site a Deferred Matter. The location of the RU1 zone generally coincides with the area of the extraction of the quarry and the proposed subdivision.
2. The RU1 zone objectives are: • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To encourage diversity in primary industry enterprises and systems appropriate for the area. • To minimise the fragmentation and alienation of resource lands. • To minimise conflict between land uses within this zone and land uses within adjoining zones. • To encourage consolidation of lots for the purposes of primary industry production. • To enable the provision of tourist accommodation, facilities and other small-scale rural tourism uses associated with primary production and environmental conservation consistent with the rural character of the locality. • To protect significant scenic landscapes and to minimise impacts on the scenic quality of the locality.
3. Clause 1.8A of LEP 2014 is a saving clause that requires the development application be determined as if LEP 2014 had not commenced as the development application was not finally determined before the coming into effect of LEP 2014. The local environmental plan in place prior to the coming into effect of LEP 2014 was Byron Local Environmental Plan 1988 (LEP 1988) and as such, this plan applies to the development application.
4. Under LEP 1988, the site is partly within the 1(a) General Rural Zone, partly within the 1(e) Extractive Resources Zone, partly within the 7(d) Scenic Escarpment Zone and partly within the 7(b) Coastal Habitat Zone under LEP 1988. The location of the 1(e) zone generally coincides with the area of the extraction of the quarry and the proposed subdivision. Clause 9(3) states: (3) Except as otherwise provided by this plan, the council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.
5. The objectives for the 1(e) zone are: (a) to identify and ensure sound management of land which has an extractive or mining industry potential, (b) to ensure that development on land within the zone is compatible with development for extractive industry and does not adversely affect the potential of any existing or future development of the land for extractive industry, (c) to include land within the zone necessary to provide a buffer area around extractive resources, (d) to require a management plan for quarries which designate that part of the property which is the operational portion of the quarry and that part which forms the buffer area. (The Management Plan shall also assess the environmental impact of noise and dust, pollution, visual impact, conflict with adjoining land uses, traffic generation and alternative methods of extraction).
6. The 1(e) zone provides that "Agriculture and bushfire hazard reduction" can be carried out without development consent and " Clearing of land; dwelling-houses; environmental facilities; extractive industries; forestry; home industries; industries (other than offensive or hazardous industries); plant nurseries; recreation vehicle areas; roads; utility installations" can be carried out only with development consent. Any other purposes are prohibited.
7. Clause 11 provides requirements for subdivision of rural land however the clause does not apply to land in the 1(e) zone. LEP 1988 contains no specific subdivision requirements for the 1(e) zone.
8. State Environmental Planning Policy No 71 - Coastal Protection (SEPP 71) applies to the site although the council raised no specific contentions in relation to this document.

The evidence

1. Expert evidence on this contention was provided by town planners Mr Mike Svikis for the council and Mr Paul Mitchell, for the applicant. A key difference between the experts was whether there is any resource left on the site for extraction. Mr Svikis states that the development is not consistent with the objectives of the 1(e) zone because the objectives clearly relate to resource protection and land management. He relies on the applicant's expert evidence of Mr Alan Dyer where he states there is resource left in the west quarry although he is uncertain about the east quarry. On this basis, Mr Svikis states that the site still has potential for sand extraction and as such is not consistent with objective (a) in that residential development will not be compatible with further extraction and is not "sound management of the land", objective (b) in that residential development will "adversely affect" the potential of the extractive industry, objective (c) in that the residential development does not "provide a buffer area around the extractive resources" that remain on the site and objective (d) in that the residential development does not include a management plan that allows for "the operational portion of the quarry" if the quarry was to be operational in the future.
2. Mr Mitchell believes that the on-site resource is virtually exhausted and that there is no realistic prospect of quarrying continuing as a viable use beyond the immediate future. While there is disagreement with Mr Svikis about the proposal's consistency with the zone objectives while the quarry is operating, Mr Mitchell and Mr Svikis agree that, assuming the extractive resources are exhausted, the proposal has a neutral relationship with the zone objectives; being that it neither promotes nor hinders them.
3. Mr Mitchell maintains that objective (b) has the most relevance. In his opinion, the proposal satisfies this objective and that there is no basis for the assertion that dwellings are permissible only when used in conjunction with an extractive industry. He maintains that the proposal for 41 residential lots is also consistent with objectives (a), (c) and (d).

Findings

1. Clause 9(3) of LEP 1998 imposes a barrier to the granting of consent unless the proposed development is consistent with the objectives of the 1(e) zone. A finding of inconsistency with any of the objectives must result in the development application being refused and the appeal dismissed. A finding of consistency with the relevant objectives allows for the merit assessment of the application.
2. The meaning of the word "consistency" was considered by Pearlman CJ in Schaffer Corporation v Hawkesbury City Council (1992) 77 LGRA 21 and in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190. In Schaffer, Her Honour, after citing a passage from the judgment of Clarke JA in Coffs Harbour Environment Court Inc v Coffs Harbour City Council (1991) 74 LGRA 185, considered that it provided "some guidance" to the task of construction [at 26] and expressed the following opinion [at 27]: 27. The guiding principle, then, is that a development will be generally consistent with the objectives, if it is not antipathetic to them. It is not necessary to show that the development promotes or is ancillary to those objectives, nor even that it is compatible.
3. A different approach was adopted in Dem Gillespies v Warringah Council [2002] NSWLEC 224, where Bignold J states [at 74 and 75]: 74. On the other hand, "compatibility" in my judgment may reasonably be regarded, a synonym of "consistency" and the meanings of these words is very similar, although in Coffs Harbour Environment Centre Clarke JA at 192 rejected as "too expansive" an argument that "consistent" meant "compatible" and one of the dictionary meanings of the latter word was "mutually tolerant". I would respectfully agree with Clarke JA's conclusion that that particular meaning of "compatible" was too expansive in the context of its application to the statutory provision requiring the consent authority's opinion that the proposed development be "generally consistent" with the zone objective. However, the primary dictionary meaning of "compatible" (the Macquarie Dictionary: capable of existing together in harmony) is in my judgment, both apt and applicable to the interpretation of the word "consistent" in its context in cl 12(3)(b) of the LEP. 75. In so concluding, that the ordinary and natural meaning of the word "consistent" in its statutory context is to be applied as being appropriate to the true meaning of cl 12(3)(b) I have had regard to the function and effect within the LEP of the Locality Statements and of those components of such Statements that state the "desired future character" of each of the localities. I have earlier drawn attention to the particular provisions of the LEP that either incorporate or contain reference to the Locality Statements and those components of those Statements that state the Desired Future Character of each of the localities. The function within the LEP of the Locality Statements is self-evidently significant. I have also had particular regard to cl 18 earlier recited where subclause (2) declares that "compliance with development standards, however, does not guarantee that the development is consistent with….the desired future character of the locality". This provision, in my opinion, is a reinforcement, and perhaps even an apt commentary upon, the true effect of the joint operation of the requirements of cl 12(2)(b) and cl 12(3)(b).
4. For the purposes of these proceedings, I have adopted the approach of Pearlman CJ in Schaffer as this approach has been more widely adopted and used since 1992 and no compelling reason was given for the Court to rely on the different approach in Dem Gillespies.
5. Much of the evidence from Mr Svikis and Mr Mitchell focussed on whether the extractive resource was exhausted or whether there were further resources to be extracted. This was considered central to the question of consistency with the 1(e) zone objectives by Mr Svikis and Mr Mitchell. Evidence on the extent of extractive material remaining on the site was provided by Mr Alan Dyer, a geologist and industrial mineralogist and Mr John Ward, the General Manager of the Broken Head Quarry.
6. Mr Dyer relied on the approval of the extractive industry in 1997 to determine whether the extractive resource was exhausted. The main parameters are:

• the eastern side has an expiry date after 17 years (7 May 2016),
• a maximum extraction to 13.5 AHD for the eastern quarry,
• a maximum extraction to 32 AHD for the western quarry,
• extraction sequencing as outlined in the Environmental Impact Statement
• no closer than 50 m from the western side of the quarry.

1. Mr Dyer also relied on seven new boreholes (BH1 - BH7) within the central and northern sections of the western quarry to identify the likely resource remaining in the base of the quarry. His conclusions were that generally, and in the absence of further detailed drilling logs, additional resources are likely to exist within the western quarry floor as SLR Consulting Australia Pty Ltd (SLR) GPS readings indicate that the quarry floor levels vary between approximately 39m and 45m, some 7m to 13m above the maximum extraction depth of 32m AHD. Mr Dyer further states that the area in and around BH1, within the western quarry, have been exhausted of premium quality sand. The area around BH2 is also exhausted of clean sand and is now predominantly sand with traces silty clay and undesirable silty clay at depth. The area in and around BH4 displays up to 4m of fine sand overlying high plasticity silty clay. If fine sand was required to supply market demands, then this material could be mined. The SLR site observations identify varying degrees of dark grey and orange silt and clay layers in the exposed faces in this area and this material is too variable to be economically worked and processed. Similar to the area around BH 4; BH5 and the surrounding area shows silty clay near the surface and sand with silt and clay traces beneath. SLR observations on site again showed sand resource in this area but with the deeper cuts were of poorer quality than the remaining site resource.
2. Mr Dyer states that there is not enough available geological information or survey data to be able to provide opinion on the remaining resource, if any, within the eastern quarry.
3. Mr Ward was provided with the report of Mr Dyer and stated that since the assessment carried out by Mr Dyer; further excavation was undertaken in the area of the south east bench, BH3, BH6 and BH7. Mr Ward states that at the final stages of extraction in the south east bench area, some pockets of material containing very high clay content were encountered which would cause the resulting sand to fail specification. A quantity of this material was processed and failed quality testing. There remains approximately 1,000 tonnes of unsuitable but extracted material in this area which will not be processed and will be used as fill in the final rehabilitation and land forming process. All of the resource identified around BH3 has been extracted and the area around BH6 has now been fully extracted except for a small area to the north west where the organic material encountered contained elevated organic material which makes it unsuitable for concrete or asphalt sand. The remainder of the material extracted which contained elevated organic material is suitable only for rehabilitating areas of the quarry to be vegetated in the future. The results around BH7 reflect the extremely patchy nature of the resource at the northern end of the quarry, which has been experienced over many years although some small patches of suitable material can still be found. Mr Ward states that experience has shown that no large viable volume of material exists and as such no further extraction will be undertaken in this area because of the poor and patchy quality of material and because of the difficulties in extraction.

The evidence

1. Mr Svikis and Mr Mitchell address the RU1 zone objectives. Mr Svikis states that the application will not:

• "encourage primary industry production" or "maintain the natural resource base". It will use the cleared land for residential housing, roads, infrastructure and bushfire buffers. None of these uses seeks to meet this objective (Objective 1).
• "encourage diversity in primary industry enterprises appropriate for the area" as the fragmentation of the land into small lots for dwellings will not encourage primary industry; it will encourage residential related land uses (Objective 2). .
• "minimise the fragmentation and alienation of resource lands "as the subdivision is completely at odds with the objective (Objective 3).
• minimise conflict between land uses in the RU1 zone and those in surrounding zones. In this case the land is surrounded by a mix of Rural 1 (e) Extractive Industry zone and 7 (b) and 7 (d) Environment Protection zones. (Objective 4).
• "encourage consolidation of lots for the purposes of primary production". In this case, the applicant intends that 41 lots will remain zoned RU1, but be used for residential purposes with minimal prospect of any primary production. (Objective 5).
• "protect significant landscapes and to minimise impacts on the scenic quality of the locality "although this is not a defining issue on this site. It is well screened from public viewing locations and the public road. The quarry pit is not a scenic location of itself but protection of surrounding bushland will be paramount to minimising scenic impacts. (Objective 7).

1. Objective 6 applies to tourist accommodation, which is not relevant in this case.
2. Mr Svikis states that as the subdivision is inconsistent with these standard objectives, it shows that the use of this land for residential development is not consistent with the objectives of the RU1 zone. In his opinion, residential development is catered for in residential zones not rural zones.
3. Mr Mitchell states the site and surrounds have no potential for extractive industry beyond the immediate future and very limited potential for other forms of primary industry. Given that the future use of the site for primary industry purposes is unrealistic, Mr Mitchell maintains that the proposal is consistent with the zone objectives 1 to 4. Mr Mitchell also maintains that the proposal will facilitate environmental conservation and is therefore consistent with objective 6 and that it will protect or improve scenic qualities and is therefore consistent with objective 7.

Findings

1. LEP 2014 must be considered as if had not commenced but can still be a consideration in the assessment of the application. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 [at par 5]). In this case, LEP 2014 (as it currently exists) must be regarded as imminent and certain. Relevantly, in Terrace Tower, Spigelman CJ states [at pars 6 and 7] that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective.
2. If the draft LEP is imminent and certain, Terrace Tower [par 7] asks whether the draft instrument seeks to preserve the character of a particular neighbourhood and if so, the draft instrument will be entitled to considerable weight in deciding whether or not to reject a development.
3. In Blackmore Design Group Pty Ltd v North Sydney Council [2001] NSWLEC 279, Lloyd J relevantly states [at 30 to 36]: 30. Whether one applies the test of "significant weight", or "some weight", or "considerable weight" or "due force" or "determining weight" to the later instrument is not, however, the end of the matter. The savings clause still has some work to do. The proposed development is a permissible development by dint of the savings clause. In giving the 2001 LEP the weight of being imminent and certain, that does not mean that there is no further inquiry. It is necessary to look at the aims and objectives of the later instrument and then see whether the proposed development is consistent therewith. Various expressions have been used to define this concept, but the approach which has been favoured in the Court of Appeal is to ask whether the proposal is "antipathetic" thereto (Coffs Harbour Environment Centre Inc v Coffs Harbour City Council (1991) 74 LGRA 185 at 193). 31. This approach was adopted in the cases to which I have referred. In Mathers v North Sydney Council Talbot J (as noted in par [22] above) attributed significant weight to the then draft LEP to the extent the Court ought to be satisfied that approving the development would not detract from its objectives as expressly stated or reflected in the proposed controls. 32. In that case Talbot J refused the appeal on the ground that the proposed development was inconsistent with the proposed planning controls in the draft local environmental plan. 33. Similarly, in Architects Haywood & Bakker v North Sydney Council after stating that significant weight should be placed upon the provisions of the draft plan, Pearlman J considered whether the proposed development accorded with the planning approach and objectives of the proposed controls in the draft local environmental plan. It was the fact that the proposed development ignored the planning approach adopted by the draft LEP that led Her Honour to refuse the application in that case. 34. In Edward Listin Properties v North Sydney Council Talbot J said (at par [15]): Although it may not be appropriate to dwell too heavily upon the detailed controls implemented by the draft LEP, it is certainly important to have regard to the broad objectives which the draft planning instrument seeks to achieve. 35. His Honour further stated (at par [35]): …If what is proposed is unsatisfactory in general terms and inconsistent, in particular, with the expressed future planning objectives for the area, then it should be rejected. 36. In Walker v North Sydney Council Cowdroy J found that the evidence established that the development application was contrary to the planning objectives of the locality, for which reason His Honour rejected the development application.
4. The question to be answered is whether the proposal will preserve the character anticipated by the RU1 zone and whether the proposal will undermine the expressed future planning objectives of the RU1 zone.
5. It is accepted that "dwelling houses" are a permissible use in the RU1 zone but the application is also be subject to cl 4.1(3) which states" "(3) The size of any lot resulting from a subdivision of land to which this clause applies (other than any lot comprising association property within the meaning of the Community Land Development Act 1989) is not to be less than the minimum size shown on the Lot Size Map in relation to that land"
6. The Lot Size Map for the site identifies a minimum size of 40 ha.
7. In my consideration of the evidence on the RU1 zone objectives, I have little trouble in concluding that the proposal will not preserve the character anticipated by the RU1 zone and the proposal will undermine the expressed future planning objectives of the RU1 zone for the reasons set out by Mr Svikis. I accept that it is important to have regard to the broad objectives which the RI1 zone of LEP 2014 seeks to achieve. Put simply, a residential subdivision has no relationship with the primary agriculture character anticipated by the RU1 zone.
8. This conclusion further supports the refusal of the application.
9. While Mr Mitchell maintains that the underlying rationale for the RU1 zoning is ill-founded, this is not a matter that can influence the consideration of this appeal. The Court must assume the zoning is appropriate and has a planning purpose. If a zoning is considered inappropriate, mechanisms to change the zoning are available in Division 4 of the EPA Act.
10. For completeness I will briefly deal with the other issues in dispute.

Character of the area

1. The council raised a separate contention that the proposed development would not be consistent with the existing and future character of the area. Mr Svikis and Mr Mitchell disagree about both the character of the area and the proposal's compatibility with existing and future character. Mr Svikis states that given the RU1 zone; the council is indicating that the future character of this area is rural and not residential. The 41 lot residential subdivision proposed is not consistent with the future character of the area anticipated by LEP 2014. There are just 11 dwellings (in total) within a 500 m radius of the quarries (an area of more than 70 ha). None of these dwellings can be seen from the development site. They are either on isolated lots or a rural Community Title land sharing property along Natural Lane. While the remnant vegetation between the site and the urban area of Suffolk Park remains a Deferred Matter under LEP 2014, Mr Svikis states that it is proposed by council to be included in an Environment Protection zone.
2. Mr Svikis states that the placement of 41 residential dwellings in this location will constitute a new urban area that will require a minimum 900 m drive for residents along Bangalow Road to reach the R2 Low Density Residential edge of Suffolk Park or a 1200 m drive to the Clifford Street shops. The furthest proposed residential lot (Lot 28) is 1150 m from the R2 Low Density Residential zone edge of Suffolk Park. The proposal is a residential development in a rural setting and as such is not consistent with the existing rural character of the locality.
3. Mr Mitchell believes the character of the area cannot be accurately described as 'rural'. He maintains that the character is formed by the mix of issues given including the residential areas identified by Mr Svikis that are only 500 m distance from the site boundary. Mr Mitchell disagrees that no existing dwellings can be seen from the development site, noting that one immediately to the west in Natural Lane and another to the north on Lot 4 Broken Head Road can be seen.
4. Mr Mitchell states that the proposal will also improve the area's visual qualities and will be compatible with its character because no new element will be introduced.
5. The applicant provided evidence from Mr R Truelove, an agricultural expert. Mr Truelove stated that a hydroponic farm could be potentially constructed on the site although he did identify a number of potential constraints. This use would be regarded as an intensive agricultural activity and would take the form of a large enclosed agricultural styled shed.
6. In my view, the most appropriate means of assessing the impact on the character of the area is to consider the likely forms and types of development that are permissible under the zoning requirements that relate to the land. The objectives also provide considerable guidance in establishing the anticipated character of the area. Under LEP 1998, the anticipated character is clearly that associated with an extractive industry and under LEP 2014 the anticipated character is primary industry based.
7. If the proposed development is considered against the likely character anticipated under LEP 1998, then I accept that the proposed development would be out of character. There is nothing to suggest that a residential subdivision shares any characteristics with a site used for the extraction of material.
8. If considered under LEP 2014, an identical conclusion must also be reached, in that a residential subdivision shares no characteristics with a site used predominantly for primary industry based uses. While Mr Truelove's evidence was largely unchallenged, it would seem unreasonable to rely on a hypothetical development (with significant constraints) to establish a description of the general character of an area.

Impact on threatened species, populations or ecological communities

The evidence

1. The council maintains that firstly, the conditions of consent for the expansion of the quarry (DA 97/0465) required rehabilitation and this rehabilitation has not been properly undertaken and secondly, insufficient information has been provided to demonstrate that there will not be a significant impact on threatened species, populations or ecological communities. Both contentions are disputed by the applicant.
2. Expert evidence on this contention was provided for the council by Ms Sandy Pimm and for the applicant by Ms Katie Whiting, both are ecologists. Ms Pimm and Ms Whiting do not agree on the extent of required rehabilitation under DA 97/0465, nor that the rehabilitation was a compensatory or mitigating measure to avoid a permanent significant impact on threatened biodiversity.
3. Ms Pimm is of the opinion that rehabilitation was proposed as an offset against a significant impact and that, in the absence of rehabilitation, a significant impact to threatened biodiversity could result. In fact, that significant impact at a local level is likely to have already occurred but in the absence of rehabilitation that impact would be permanent rather than temporary.
4. Ms Whiting does not agree that the quarry expansion would have resulted in a significant impact on 'existing bushland' as stated in the EIS. A significant impact is only relevant to threatened species, populations and/or communities listed under the Threatened Species Conservation Act 1995 and/or Environment Protection and Biodiversity Conservation Act 1999. The significant impact suggested by council and stated in the 1997 SIS does not represent a significant impact for any threatened species, population or ecological community, as these were located outside the area of proposed disturbance for the quarry expansion, and the vegetation communities were not listed under the above acts. In addition, the amount of vegetation clearing was minimised to 8.5 ha following the Commission of Inquiry. The impacts of this vegetation clearing have already occurred for quarrying. Therefore, it does not follow that a failure to undertake rehabilitation as expected by council would result in a significant impact.

Findings

1. There was agreement between Ms Pimm and Ms Whiting that rehabilitation forms part of the approval by the Minister. As I understand, the different opinions on rehabilitation arise from different views on the ultimate purpose of the rehabilitation; Ms Pimm concluding that rehabilitation was proposed as an offset against a significant impact and that, in the absence of rehabilitation, a significant impact to threatened biodiversity could result and Ms Whiting concluding that the impacts of the vegetation clearing have already occurred for quarrying so a failure to undertake rehabilitation as expected by council would not result in a significant impact.
2. I am satisfied that the conclusions of Ms Pimm are more closely supported by the conditions of consent, the1997 EIS and the1997 SIS than the conclusions of Ms Whiting although I accept that these documents do not unequivocally support Ms Pimm's approach.
3. The 1997 EIS (at cl 2.13.1 and 2.13.2) addresses Rehabilitation and states: 2.13.1 Introduction The Company would continue to adopt a progressive approach to the rehabilitation of areas of disturbance within both the existing quarry and proposed quarry areas to ensure that • areas fully extracted are quickly shaped and revegetated to provide a stable final landform that would form part of the long term landscape; and • areas where extraction has been partially completed to date, but are not required for active quarrying operations in the short term, are temporarily revegetated to minimize potential visual and water management impacts. These areas would also be used to monitor the re-establishment of specific vegetation communities and species. The following sub-sections describe the Company's rehabilitation objectives and the proposed final landform on completion of quarrying on the Project Site, and outline the procedures and species to be used for both temporary and final rehabilitation. Rehabilitation of specific structures on the Project Site is also discussed. The rehabilitation procedures and species outlined have been recommended by Greenloaning Biostudies Pty Ltd (1997). 2.13.2 Objectives The rehabilitation objectives for the Suffolk Park Quarry can be classified as either short term or long term. The short term objectives are to: • stabilise all earthworks • minimise the quarry area exposed at any one time and hence the area of potential dirty water generation; to keep clean and dirty water runoff separate, where practicable; and • undertake tree planting and install vegetated bunding to enhance visual screening and aesthetic amenity, to minimise edge effects and provide a protective buffer for sensitive, potentially exposed vegetation. The Company's long term objective is to leave all land which has been disturbed by quarrying and related activities as a safe, stable, vegetated and well drained landform
4. The 1997 EIS (at cl 2.13.3.2) describes the Final Land Use and states: No definite land use is proposed for the former quarry areas at this stage and similarly, Council has no long term strategic goal for die Project Site at this stage. It is proposed, however, to leave a stable well-drained landform which provides alternatives as to future land uses. Any future land use for the former quarry areas would be a matter for determination by the landowners, Council and other relevant authorities at the time. The Company's rehabilitation proposals have been designed to rectum a mosaic of vegetation types on the site which would be compatible with the surrounding vegetation communities. Any future land use considered for areas of the Project Site prior to the completion of all quarrying (e.g. for the completed quarry east of Broken Head Road between about Years 20 and 27) would need to be compatible with the continued operation of the quarry in Area W and the continued use of the underpass and underpass haulroad for product despatch
5. The 1997 EIS (at cl 2.13.5.1) describes the Final Rehabilitation Concept and states: 2.13.5.1 Concept The approach to quarrying on the Project Site as described in Section 2.4.6 would enable the progressive establishment and rehabilitation of the final landform. A programme of progressive final rehabilitation would: • minimise the area of potential dirty water generation; • minimise the potential visual impact; • reduce the quarry area to be rehabilitated at the end of quarry life and therefore the financial burden of undertaking large scale works when income from the quarry has ceased or is declining; • limit the length of batter slope to be rehabilitated in one programme, thereby reducing the likelihood of scour; and • provide an opportunity for long term monitoring of rehabilitation procedures and success, thereby enabling the progressive refinement of techniques and/or species selections. Final rehabilitation of ancillary structures such as water management controls and visual and acoustic bunding would commence within the first year following receipt of Development Approval, and of completed quarry surfaces within a period of three years from receipt of Development Approval. Final rehabilitation of areas of disturbance west of Broken Head Road would commence within two years of the commencement of large-scale extraction activities in that area. Based on the projected growth rate in product sales, rehabilitation of the majority of the quarry area east of Broken Head Road would be completed in about Year 18 of quarry life, and of all areas of disturbance west of Broken Head Road, within 2 to 3 years following the completion of extraction in that area, i.e. about Year 30.
6. The 1997 EIS (at cl 2.13.5.3) describes the Rehabilitation Species and states: 2.13.5.3 Rehabilitation Species Greenloaning Biostudies Pty Ltd (1997) have recommended that final rehabilitation be, to the re-establishment of three main vegetation communities which occur naturally on the Project Site. East of Broken Head Road, most areas would be rehabilitated to a Blackbutt Open-forest, with Scribbly Gum Woodland (Heathland) proposed for the northern half of Area C. Some Brush Box Forest may also be established in appropriate areas. West of Broken Head Road, final rehabilitation would comprise a mixture of Blackbutt Open-forest and Regenerating Rainforest communities, the latter being appropriate wherever the final landform conditions are suitable in terms of shelter and moisture availability. A fourth vegetation type, namely a Wetland community, would be developed in association with the Eastern and Western Settling Ponds, the final silt traps and the Process Water Pond. Procedures to be employed for the rehabilitation of each of the above communities are outlined in Sections 2.13.5.4,2.13.5.5 and 2.13.5.6. Plant species would be seeded and/or planted, depending on individual species characteristics and the results obtained from monitoring temporary rehabilitation communities. An indicative list of species within each stratum suitable for planting within each community, based on species recorded to date within the individual communities or observed to be colonising species within the quarry, is presented in Table 2.6 Wetland species to be used would differ for proposed rehabilitation areas east and west of Broken Head Road. The difference in the proposed planting/regenerating lists reflect the nature of the existing vegetation in each area. Around the area of the Eastern Settling Pond, vegetation is of the Wallum system whereas west of Broken Head Road, the Clean Water Dam is associated with the rainforest system and a palm gully. Seed for broadcasting and/or seedling propagation would either be collected on or adjacent to the Project Site by Company staff under the direction of the Company's floral consultant, or be contracted to local interest groups or professional seed suppliers. The collection of seed would be undertaken under licence from the National Parks and Wildlife Service as required under the National Parks and Wildlife Act, 1974 and the Threatened Species Conservation Act, 1995. Only when there was an additional requirement over and above that available from local sources would the excess be sourced externally.
7. What can be gleaned from the 1997 EIS is that no specific future use was contemplated at the time of the development application but some future use was likely to occur sometime in the future. Notwithstanding some unknown future use, the rehabilitation of the quarry was a fundamental component in the consideration of the application to extend the life of the quarry. This involved temporary and permanent rehabilitation processes. The area to be rehabilitated was not the whole quarry site but rehabilitation would provide "a mosaic of vegetation types on the site which would be compatible with the surrounding vegetation communities". The species chosen for the rehabilitation would result in "the re-establishment of three main vegetation communities which occur naturally on the Project Site" and "plant species would be seeded and/or planted, depending on individual species characteristics and the results obtained from monitoring temporary rehabilitation communities".
8. In my view, the starting point for any ecological assessment must be the likely rehabilitated state of the site, as anticipated by the the conditions of consent, the1997 EIS and the1997 SIS. In this context, I am unable to accept Ms Whiting's proposition that the impacts of vegetation clearing for the quarry have already occurred. It follows, in my view, that any ecological assessment must have regard to the anticipated rehabilitated state of the quarry and not just an assessment of the additional areas required for the subdivision and beyond the excavated area of the quarry.
9. On this basis, I find that the ecological assessment is inadequate.

Strategic planning documents

1. The council maintains that the development application should be refused because the site is not identified within the Byron Rural Settlement Strategy or the Byron Bay Suffolk Park Settlement Strategy as suitable for a rezoning to facilitate residential or rural residential development.
2. Mr Svikis and Mr Mitchell agree that the Byron Rural Settlement Strategy does not apply to the proposal and that the Byron Bay and Suffolk Park Settlement Strategy 2002 (the 2002 Strategy) has not been formally adopted by council. Mr Svikis states that the 2002 Strategy does not identify the site for future residential development however the council is preparing a new strategy but until this is completed, the 2002 Strategy remains current.
3. Mr Svikis and Mr Mitchell disagree about the implications of the site not being included in the 2002 Strategy. Mr Svikis states that the site is not in any strategy as a future residential or rural residential area and it is not reasonable to predict that the site will at some time in the future, be included in a future strategy.
4. Mr Mitchell disagrees with Mr Svikis because the 2002 Strategy is now 13 years old and fundamental circumstances have since changed since 2002. Under today's circumstances, no planning purpose would be served by including the site in a strategy to identify future residential areas because residential use is already permitted on the site. A planning proposal serves no purpose because no provisions in the applicable instrument need amendment.
5. In my view, the absence of the site from the 2002 Strategy is not a matter that would warrant or add to the reasons for the refusal of the application. The 2002 Strategy is 15 years old and obviously needs revision. The decision to include the site in any future strategy is a matter solely for the council. Given the earlier findings, Mr Mitchell's position that no planning purpose would be served by including the site in a future strategy because residential use is already permitted on the site is incorrect, in my opinion. However, the mechanisms to change the zoning are still available in Division 4 of the EPA Act if the council chooses not include the site in a future residential strategy.

Impact on the Aboriginal cultural significance of Taylors Lake.

1. The council maintains that the development application should be refused because the subdivision is likely to have unacceptable and cumulative impacts on the Aboriginal cultural significance of Taylors Lake, to the east of the site, because the residential subdivision may lead to future residents accessing Taylors Lake by existing tracks, leading to pollution and other activities which would not respect the significance of the Taylors Lake.
2. Expert evidence was provided by Mr Adrian Piper, for the council, and Dr Shaun Canning, for the applicant. Representatives of the Jali Local Aboriginal Land Council and the Byron National Park Service also provided evidence on this contention.
3. Given the relatively small focus of the contention, I am satisfied that the concerns expressed by the council and the Jali Local Aboriginal Land Council could be addressed through the provision of appropriate fencing to deny access to the land around Taylors Lake, if the development were to be approved. The future Plan of Management will also help protect the cultural significance of Taylors Lake.

Orders

1. The orders of the Court are: 1. 1. The appeal is dismissed. 2. 2. Development Application 10.2014.331.1 for the subdivision of land known as the Broken Head Quarry, off Broken Head Road, Broken Head is refused. 3. 3. The exhibits are returned with the exception of exhibit 2.

G T Brown Acting Senior Commissioner 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: 01 December 2015