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[2000] NSWLEC 200
Land and Environment Court (NSW)
2000-09-07
Sheahan J
Original judgment source is linked above.
The applicant presented its case on the basis that it has purchased a site, of which, in his submission, Mr Hale can say: " it is difficult to conceive of an area in which a quarry and landfill would be more in keeping with surrounding uses ". It is seeking to serve and expand its existing business as a quarrier, as a supplier of fill, roadbase, etc, and as a landfill operator. It has demonstrated that it knows its industry and markets well.
The acquired site provides for an " enormous " buffer area making it " ideal " for the proposed development, particularly in an area planned for employment rather than residential use, and where the site will, as a consequence of the proposed development, be rehabilitated from its past use into an area of greater utility and amenity.
Its DA is for a permissible purpose, and the applicant is entitled to a consent to develop the site for that purpose, regardless of the economics of the relevant industries, provided it can show that there is no adverse environmental impact, or none that cannot be satisfactorily dealt with by conditions of consent.
The site is in a rural zone which can " provide urban support functions ", of which quarries and landfills are two which need not be inconsistent with the area's rural character. Golden Quarries v Coffs Harbour City Council (1991) 72 LGERA 104 (at 106 per Stein J).
Whereas designated developments by their very nature have some amenity and other impacts, but are necessary in the public interest, the environmental impacts of this proposal, while " almost non-existent ", and " not even detectable " in some instances, even when measured on a cumulative basis, are certainly within goals which prescribe acceptable levels of impact.
The relevant public authorities see no impediment to the development, if approved on appropriate conditions, and the objections of nearby residents do not translate into proven significant impacts on the environment. Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 (at 93 per Hemmings J).
The topography, and the amount of land available for an operator-controlled buffer area, are favourable to the project, and there is to be no blasting. All other traditional measures of adverse environmental impact show negligible external impact.
In those circumstances, the economic factors going to an assessment of " proper use of resources " (EPAA s5) do not arise for determination. As Mr Hale put it, landowners wishing to develop their land in ways which cause no unacceptable impacts " should not be denied that opportunity due to a perceived lack of social or economic benefit in their endeavours " (see par 10 of written submissions). Alternatively (as put orally at T9.6.00 p3 lines 30ff):
… while the quality of the resource may be a factor which might tip the scales in favour of permitting a development, notwithstanding the amenity impacts because of the need for the resource, but the converse is not the case … A development which has no or has acceptable amenity impacts would not be refused because the resource is not good enough and there's perhaps not economic gain to be had from it.
[See J Murphy & Sons Pty Ltd v Secretary of State for Environment & Anor [1973] 1 WLR 560 (at 565 per Ackner J) and Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83 (at pars 12-13 per Lloyd J)]. 111. Here, all the environmental consequences of the proposal can be adequately controlled by conditions, especially those regarding duration of consent, annual extraction quantities, stockpiling, importation of material, final landform, etc.
In any event, the applicant claims to have demonstrated by its evidence that there is a market for the materials to be extracted, that much of that market is nearby to the site, and that there is also a need for the additional landfill capacity which will be established by the reopening of quarry operations.
The Council , on the other hand, argues primarily that, while one might expect, and allow, such developments in the " urban fringes ", here there is intense urban development, " fundamentally incompatible " with such development, as close as the site boundary. See Inghams (at 75ff per Cole JA).
While some matters of environmental concern might be seen by experts to comply with certain parameters, and be capable of adequate control by conditions, those and other impacts do exist, and they affect the amenity of nearby urban development. They must be " weighed in the balance " with the public interest arguably served by the development, and, in this case, it has not been established that there is a reliable market for the extracted material, only a spasmodic demand at the lower end of the " unspecified fill " market such that unacceptable stockpiling will be necessary.
In addition, the effective " winning " of the material, without blasting, has not been demonstrated, and the preferred method of winning the material will itself further reduce its quality and marketability.
The evidence shows that the applicant will require landfill capacity at the subject site within 4 to 7 years, to replace PWS's Mulgoa site, and the court could not be satisfied that the necessary completion of Stage 2 of the quarrying operation will be achieved by then, that only satisfactory stockpiling will have been necessary, and that the landfill operation itself will perform in an environmentally acceptable way.
If the project as a whole cannot be shown to be economically viable, the site may be left in a worse state than it is now, or the court may later be asked to approve blasting, as a matter of economic necessity, but with unacceptable environmental consequences. If the applicant or its project fails financially - and Robert Wearn conceded that his family company was financially " stretched " (T8.6.00 p 530 lines 45ff) - environmental impacts and rehabilitation costs will be at their peak.
The Council supported the local objectors, and also complains that the proposal should fail for its uncertainty (see written submissions sections 3, 4.5(c), (f), (g) and (h)). Mr Craig also reminded the court that any favourable impression gained from the visit to the PWS Mulgoa Road operation cannot be inferred to this proposal, as the site could be on-sold with the benefit of any consent granted.
As noted above (pars 35 and 36), the local citizens have taken a strong, vocal and active position in opposition to this development. The court has studied all their submissions, and many residents from close to the site sat through the entire hearing, several giving oral evidence.
Marsden Park Residents Action Group (" MPRAG ") was formed specifically to oppose the development ( Exhibit C19 fol 18); it has organised several well attended meetings and protests (see media clippings Exhibit C19 fols 161-9); and it had a deputation to Minister Knowles.
MPRAG President, Phillip Wall, and Treasurer, John Saliba, both of whom live in South Street, directly adjacent to the northern boundary of the site, gave oral evidence at the hearing, as did Alfred Peate, Neil Brewitt, Anthony Robson, and Joann Bromley, all residents of the caravan park, as well as Councillor Daniel Mackin (who represents the relevant ward).
I have dealt with Mr Peate 's submissions and evidence above - see pars 74 to 78. I am satisfied that his evidence evinced a genuine concern about health and amenity issues, rather than any commercial concerns he and his family may have.
Councillor Mackin ( Exhibit C19 fol 216) expressed objections on behalf of the residents of Marsden Park, Hassall Grove, Shalvey and Bidwill. He is of the opinion that the area does not need another landfill, and was quoted in the media ( Exhibit C19 fol 161) as describing the proposal as " environmental vandalism by landfill ". He testified that, quite unusually, his Council had voted unanimously to refuse the DA.
Mr Wall ( Exhibit C19 fols 10 and 170-1, and Exhibit C23 fols 65-6), took the position that there should be " no more in our backyard ", given the number of tips, quarries, noxious industries, etc. nearby. His major remaining concerns seemed to be Richmond Road, noise and dust, but he also expressed concern about regulatory supervision, flora/fauna and aboriginal history.
Ms Bromley ( Exhibit C19 fols 119 and 173) is a single mother raising two children in her home at the caravan park. She has flora/fauna concerns, and a particular concern about traffic and safety on Richmond Road.
Mr Saliba ( Exhibit C19 fols 78-82, 165 and 198-9) has a very long association with the area and farms poultry on his land at 264 South Street. He has had unfortunate experiences with the Grant Avenue landfill behind his property, and is concerned at the " sandwich effect " (my term) of having another in front of it. He is particularly concerned about the effects of dust and noise on chicks in his growing sheds.
Mr Robson ( Exhibit C19 fol 104) is a retired fitter with serious health problems aggravated by dust, stress and disturbance of daytime rest. He is also concerned about loss of wildlife.
Mr Brewitt ( Exhibit C19 fol 108) is a shift-working fireman who needs to sleep through the day. He is also concerned about his formerly asthmatic stepson, dust, odour, noise, traffic, and loss of the area's rural character.
I have earlier referred to the proximity to the primary focus of the proposed activities on the subject site, not only of the caravan park on lot 25 to the south, but also of lots 30 and 31 to the north (see par 62 above).
Lot 31 has the street address 311 South Street, and a late written submission from Mr Joe Cauchi , who has lived at 311 for more than 16 years, was tendered separately ( Exhibit C33 ). Other objections from him in July 1998 and May 2000, ( Exhibit C23 folio 69, and Exhibit C19 fol 180) focussed on his allergy to dust, traffic, the impact on land value, and noise. He is now mainly concerned about the sheer proximity of his home to the proposed activities, and lack of screening or buffer in that direction. He concedes that his house is 350m from the old quarry site, but he asks that the leachate be irrigated in a southerly direction.
Other objections from members of the Cauchi family (some giving the address 312 South Street) appear at folios 46 and 92 of Exhibit C23 , and are concerned mainly with blasting and land value.
Lot 30, and nearby lot 4 Glengarrie Road, belong to members of the Camilleri family ( Exhibit C19 fols 206-7 and Exhibit C23 fols 54 and 56-7). Glengarrie Road runs north-west off South Street, just north-west of the applicant's land, and south-west of the Grange Avenue landfill. The Camilleris have owned lot 30 for 20 years, and the concerns in their submissions are odour, devaluation, dust, vegetation clearing, proliferation of landfills in the area, blasting, noise and traffic.
All the local submissions have some consistent themes. Most of the local residents have chosen to live in the area, e.g., to avoid the " pollutions of city life " for a variety of personal reasons. One spoke of a " nice peaceful rural atmosphere close to work and all amenities" ( Exhibit C19 fol 133), and another said " we are country out here so we would like it to stay that way" ( Exhibit C19 fol 59). Some objectors are asthma sufferers who moved there looking for clean air, and others sought an area lacking in crime. They use adjectives such as safe, quiet, sound, healthy, quaint, clean, peaceful, rural, spacious, natural, low-paced, and trouble-free, and nouns like peace, tranquillity, parkland, bush, and security.
Many of the submissions predate the deletion of blasting from the proposal, and virtually all of them express serious concern about the prospect of blasting, and vibration damage.
Many have a flavour of " enough is enough ". The Munro submission ( Exhibit C23 fols 36-7) details five closed, current or proposed " tips " within 5km of 216 South Street, in addition to Ganian's proposal. Other quarries, and local industries with some unpopular aspects are detailed above.
Traffic concerns - both type and volume - are frequently mentioned, and much is made in the submissions about the local wildlife : Ms Bromley speaks of kookaburras, kangaroos, and swamp hens ( Exhibit C19 fol 173) and of white owls, black cockatoos, and other birds and wildlife (T1.6.00 pp 172, 174 and 175). Long time observers speak of ibis, black swans, spoonbills, pluvers, cormorants, parrots, pelicans and water fowl (e.g. Exhibit C23 fol 106), as well as ducks, geese and lizards, and a schoolgirl provided a long list of birdlife (see Exhibit C23 fol 99) observed on the site.
Several objectors lamented possible loss of " once magnificent and peaceful Cumberland Plain" ( Exhibit C19 fol 71).
One caravan park resident complains that the wind already blows odours in the park's direction from the " well run " Steggles chicken factory ( Exhibit C19 fol 53), and expects worse from this proposal.
There are concerns expressed in the objections also about the impact of dust on asthma, and on roof-collected rainwater for domestic use, possible lead poisoning, odour, vandalism, theft, possible pollution of Bells Creek used by cattle, the pumping out of " contaminated " water from the old quarry, inundation by rats, the possible dumping of nuclear or other dangerous or hazardous waste, danger to school children crossing Richmond Road (to school or bus), damage to market gardens growing strawberries ( Exhibit C19 fol 61) or vegetable crops ( Exhibit C23 fol 184), and damage to aboriginal sites ( Exhibit C19 fol 72) or to " Marsden Park volcano " ( Exhibit 23 fol 27).
The court has noted all these concerns, and the asserted negative impacts on local institutions like Marsden Park Primary School and the Muslim Mosque.
Dr Graeme Wells was the author of a personal objection ( Exhibit C23 fol 58) about ecological matters, and was called to give expert evidence, to which I will return.
Among the letters of objection (in Exhibit C19 and Exhibit C23 ) there are relevant submissions from:
· Hirst Consulting Services, Lane Cove (14 July 1998, Exhibit C23 fols 53 and 88). · Steggles Ltd, Beresfield (26 June 1998, Exhibit C19 fol 138) · Austral Brick Company, Horsley Park (13 July 1998, Exhibit C23 fols 13-14) · Envirogard Community Waste Management, Erskine Park (14 July 1998, Exhibit C23 fols 43-45) · CSR Construction Materials, Chatswood (14 July 1998, Exhibit C19 fols 1-6, and Exhibit C23 fols 47-52). · CSR Building Materials/PGH Clay Bricks and Pavers, Cecil Park (10 July 1998, Exhibit C23 fols 9-12)
Most of these submissions follow similar lines.
Hirst objected on behalf of clients " involved in recycling building products ". The breccia to be extracted " is of a very low quality resource value " and 300,000 tonnes of it per annum " will significantly affect " the market for the more expensive recycled concrete roadbase and aggregates, contrary to the State Government's objectives for the recycling of concrete, bricks, etc. to reduce " waste to landfill ".
Steggles has a " distribution and packaging operation of chicken products " 600m from the quarry site and expressed concerns about dust, air quality, odours, vermin and blasting/vibration.
Austral was at the time seeking approval for a landfill on its quarry/brickmaking premises at Wallgrove Road, Horsley Park and had in view four more " similar restoration " projects. It expressed doubt about the saleability of the Ganian resource, including to Austral, and thought it " may be detrimental to the image of our industry ".
Envirogard is a CSR/Brambles joint venture " to restore by landfill methods worked out quarry sites in an environmentally responsible manner ", and it conducts waste recycling activities at its sites. It proposed a landfill in the quarry void at PGH Schofields site which would suffer from the Ganian proposal relatively nearby. It criticised the quality of Ganian's breccia, and its possible threat to recycling objectives, and saw " no justified markets " for the shale. It alleged adverse noise, dust, flora and other impacts.
CSR Construction Materials made a comprehensive objection critical of Ganian's breccia resource and its likely impact on recycled competitors. It was also critical of the likely quality of the shale material, and of the Ganian landfill's effect on the Schofields project. Various environmental impacts are also echoed, but need not be repeated here as they are all mentioned elsewhere.
The CSR Building Materials submission focussed on the injection of Ganian shale, subject to its doubted quality, into the market which CSR currently self-supplies, and on the landfill proposal's competition with Schofields.
The applicant relied on the evidence of the following: Barbara Crossley , of Umwelt (Australia) Pty Ltd, an environmental consultant specialising in " public infrastructure, coal mine and quarry projects " ( Exhibit A1 ).
Janet Thomson , of APT Peddle Thorp, a strategic town planner with senior government and private sector experience ( Exhibit A2 ).
J. Michael Nash , of Douglas Partners Pty Ltd, a hydrogeologist ( Exhibit A3 and Exhibit A22 ).
Kerry Holmes , Principal of Holmes Air Sciences, an environmental chemist specialising in air quality (dust and odour) matters ( Exhibit A4 ).
Dick Godson , of Richard Heggie Associates Pty Ltd, an acoustical engineer ( Exhibit A5 ).
F. Dominic Fanning , Principal of Gunninah Environmental Consultants, a biologist specialising in flora and fauna matters ( Exhibit A6 and Exhibit A14 ).
George McLellan , Principal of Gemac Services Pty Ltd, a geologist, now consulting after a long career in industry ( Exhibit A7, Exhibit A19 and Exhibit A20 ). 151. Thomson, Nash, Fanning and McLellan also gave oral evidence, as did Robert Wearn , a director of Ganian Pty Ltd.
The respondent Council relied on the evidence of the following: Peter Stephenson , Principal of Peter Stephenson Environmental Management Australia, an air quality consultant ( Exhibit C12 ).
Steven Cooper , Steven Cooper Acoustics Pty Ltd, a consulting acoustical engineer ( Exhibit C13 ).
Lindsay Fletcher , Gary Shiels & Associates Pty Ltd, a specialist consulting town planner with long experience in local government ( Exhibit C14 ).
Don Reed , Principal of Don Reed & Associates Pty Ltd , an extractive industries consultant (geologist) of long standing ( Exhibit C15 , Exhibit C28, Exhibit C31 and Exhibit A13 ).
Dr Gareme Wells , a schoolteacher and consultant ecologist ( Exhibit C16 ).
Neil Greenwood , Golder Associates Pty Ltd, a consulting hydrogeologist ( Exhibit C17 ).
Fletcher, Wells, Reed and Greenwood also gave oral evidence. Council also relied on a report obtained by Mr Peate from Louis Challis , principal of Louis A Challis & Associates Pty Ltd, consulting acoustical engineer, in June 1998 ( Exhibit C19 fols 194-7 and Exhibit C23 fols 19-22).
The various public authorities consulted by the Council provided comments which are collected in Exhibit C18 (fol 1-29) and Exhibit C23 (fol 2-4). The contents of all of them need not be abstracted at this point, but the following can be noted (from Exhibit C18 ):
· Department of Urban Affairs and Planning (" DUAP ") said on 29 October 1998 (fol 1): The Department has examined the EIS. The proposal is outside the Riverstone Release Area. The Department considers that the proposal is unlikely to have significant impact on long term land use planning for the region as identified in the Sydney Regional Environmental Plan No.19 …
· The Department of Mineral Resources (" DMR ") said on 20 July 1998 (fol 4): The site of the proposed development was identified in Sydney REP 9(1) but was deleted from REP 9(2) as it was considered by the then quarry owner to have no further economic potential. Extraction of the remaining economically recoverable resources of volcanic breccia from the site is supported as it will optimise the utilisation of these resources which are well located to supply local and regional markets. The proposal could also make available significant quantities of clay and shale for use in brick manufacture.
· The DMR wrote to the Council again on 22 January 1999, and said, inter alia (fol 3):
The Department would like to point out that Marsden Park quarry was originally identified in Sydney REP 9(1) and was deleted from REP 9(2) at the request of the then operator, Rocla Quarry Products, which considered that the deposit had no further economic potential at the time.
The current applicant has demonstrated the existence of additional resources of volcanic breccia and clay which can be economically extracted and the Department strongly supports this aspect of the proposal as the resources which are well located to supply local and regional markets, with road base and brickmaking raw materials.
That these resources are not identified in Sydney REP does not detract from the fact that an important extractable economic resource exists and as such should be utilised for the benefit of the wider community, if other considerations allow. It should not therefore constitute a ground for refusing the application.
This point was emphasised in Sydney REP 9(1) where it was stated in the Planning Report (p 20) that the fact that a resource is not included in the plan 'does not by itself imply that the site is of no economic significance nor that a Council should not consent to an application to carry out an extractive industry on such a site. Such a proposal should be taken on its merits'.
· The Environment Protection Authority (" EPA ") said on 17 July 1998, (fol 6 and 9): It appears that the matters raised in the EPA's letter of 20 August 1997 have been taken into account in the EIS. However, when considering this development, Council should be concerned in regard to the effect of noise, dust and increased traffic movements on the adjacent residential premises and the Town and Country Van and Mobile Home Park. …
Noise exceedances at the proposed Caravan Park do not appear to be justified with the current assessment. Before the higher planning noise levels can be applied both the use of all feasible and cost-effective mitigation measures and socio/economic benefits that result from the development need to be identified. · The Department of Land & Water Conservation ("DLWC") made the following comments on 6 October 1998 (fol 12-13): The Fauna and Flora Assessment Report (FFAR) states that small areas of the Cumberland Plain Woodland are to be removed by the proposed development, but does not quantify the area (hectares) or number of trees proposed to be removed. The FFAR (figure 1) indicates that cleared land is adjacent to the proposed quarry but this has not been considered in the EIS or the FFAR as an alternative to quarrying the remnant woodland.
Considering the Cumberland Plain Woodland is an endangered community and is listed under section 11 of the Threatened Species Conservation Act, the Department does not support the proposed clearing of the remnant Grey Box woodland, particularly as the potential may exist to quarry the cleared land instead of the remnant woodland. The applicant should be demonstrating how they will be enhancing the native local biodiversity of the area within their proposal. The applicant needs to demonstrate why the cleared land to the east of the proposed quarry could not be quarried instead of the remnant woodland. … Further details are required to assess the proposed release of quarry water to the surrounding natural watercourses (for example the method of release, location, timing, magnitude and duration of release). The Department further recommends that the applicant consult the DLWC to ascertain what, if any permits are required prior to the release of the water.
The FFAR indicates that the dam to the south of the old quarry provides significant habitat for aquatic species (page 12) but it is not clear if the proposed development is likely to affect the hydrology of this artificial wetland. The EIS states that the wetland will not from (sic) part of the quarry/landfill water management system and that clean water will be diverted to the storage dams (page 7-2) but it does not indicate if surface runoff to this wetland will be modified. … The progression of stages for the development have been well documented. Section 5.3.3. (Stage 1) discusses that the non-marketable part of the extracted material will be stockpiled for later use as overburden. While the volume of this stockpile 'is not expected to be large', no quantitative measure is given. Furthermore, no information concerning the grainsize of the material to be contained within the stockpile has been stated. Issues regarding batter angles and erosion and sediment control measures to be employed on and around the stockpile (and other such stockpiles) have not been addressed.
Considering that the groundwater is found to be highly saline, it is possible that leaching of stockpiles consisting of crushed bedrock may induce a salinity problem. The Department recommends that the applicant considers this possibility and if such eventuates, that the proponent discusses how such salinity will be isolated from soils and water courses.
· NSW Agriculture said on 19 October 1998 (fol 15): NSW Agriculture considers that the rehabilitation of any disturbed site should be at least to the level of agricultural suitability that existed prior to extraction. This should apply even if the final land use being considered is not agricultural. This position is based on the recognition of the limited areas of agricultural resources available in the Sydney region and the need to ensure that agricultural resources are not unnecessarily alienated.
The proponent has not clearly demonstrated that the site can be rehabilitated to at least its pre extraction agricultural land suitability. Further, the proponent has not demonstrated that the final landform, if used for agricultural purposes, will be capable of supporting sustainable agricultural production. · National Parks & Wildlife Service said on 4 August 1998 (fol 18):
I turn now to deal with the evidence presented at the hearing. I will do so under sub-headings which generally coincide with the issues as opened by counsel for both sides.
However, as Lloyd J observed in Tiocliff Pty Ltd v Yarrowlumla Shire Council [1998] NSWLEC 13: The evidence relating to each topic … is both detailed and extensive. … A detailed analysis of the entirety of this evidence would result in a judgment of biblical proportions. Accordingly, I propose to indicate in a general way the evidence which I prefer and my reasons for doing so.
Thomson ( Exhibit A2 ) described the area including the subject site as a " transition area " on the urban fringe of a large city, an area where one would expect to find a mixture of old and new uses of considerable variety.
Inevitably there is tension between the urban and the rural in such areas, but extraction and landfill industries are commonly found there, as they are practical and economical locations for such uses, which fulfil a public need and cause minimal environmental impact. Newer uses, more usually associated with urban expansion, gradually overtake the old and transitional uses.
Fletcher ( Exhibit C14 ) was concerned on Council's behalf about the possible impact of the Ganian development on the urban " release " programme in the Rouse Hill Development Area. The evidence indicates that that release area covers some 9,400 ha, of which the subject site is 236 ha (2.5%), with the important strategic planning advantage of being held in a single ownership.
The evidence also suggests that land is released five-yearly, in areas about 2 to 2.5 times the size of the subject site, and that this area is not likely to be released for a considerable number of years, perhaps 20 from now (see T5.6.00 p 320 ff), but while development enjoys consent. Even the solicitor who objected in his own right (Mr Vassallo, see Exhibit C23 fol 26) could argue only that " over the next ten to fifteen years the land around which (sic) the quarry is located would begin to be developed for urban uses ", and the applicant is prepared to agree to a condition that the total life of the whole project be capped at 25 years.
Thomson quoted evidence which she said indicated that the demand for land in this area was more for employment purposes than residential lot production, but that that demand was easily capable of being satisfied by earlier stages of the land release cycle (see Exhibit A2 p 10 and T5.6.00 pp 319 ff).
The court must take note of the views expressed by the relevant government agency dealing with urban release issues, and DUAP has stated that the proposal " is unlikely to have significant impact on long term land use planning" for the Rouse Hill Development Area ( Exhibit C18 fol 1). Sydney Water is not expected to service the area until the " medium to long term " ( Exhibit C20 fol 34). I also note here again that the area has been designated as an " employment area ".
It should also be noted that Fletcher agreed with Thomson that it was in the public interest that the quarry be filled in.
I am satisfied that the proposed uses are generally consistent with the surrounding complying uses; that they will be of benefit to the area as it moves gradually into urban development; that they will not impede the government's urban release programme; and that the remediation component of the proposal is clearly in the public interest, both in the short and long terms.
Several objectors, and their homes and/or businesses and workplaces, are located closer to the actual site of the proposed operations than is the caravan park, but the substantial population consistently residing in the caravan park has environmental concerns which must be considered, along with those of the site's closer neighbours. Fletcher said that his only real concern in this context was the caravan park, rather than the pig farm, poultry farm or other neighbours further away.
The fact that several environmental impacts have been covered by proposed conditions, which the applicant is prepared to accept, does not alter the fact that those impacts will occur, and will change the daily lives of those who will suffer them.
Fletcher was concerned about the cumulative effect of impacts such as noise, odour, dust, traffic, etc, rather than their respective individual impacts, which the expert evidence does not show to be " significantly adverse ". He said ( Exhibit C14 pp 18-19) that " there would need to be an overwhelming public interest issue in favour of the development … to impose significant adverse amenity impacts on the already disadvantaged residents of a substantial residential estate which is located within what would normally be regarded as a buffer area". Mr Craig referred to these matters in his oral submissions (see T9.6.00 pp 19-21).
Each of these individual impacts has been examined in turn, noting the significance to the overall picture of the absence of blasting from the proposal. Each was the subject of serious objection from the local population and close examination by the experts.
Traffic impact was not the subject of any real contest, or of expert evidence. Richmond Road is certainly difficult for the local population, particularly in peak hour, but the experts " opine that in a traffic engineering sense the road can cope, subject to the engineering of the intersection, … with trucks turning in and out " (Craig T9.6.00 p19 lines 55-8).
Mr Hale contended that there " is almost no perceptible noise contribution " (acoustic submissions par 8), but, in any event, the competing experts, Godson and Cooper, agreed on the appropriate goals, measures and conditions to deal with the noise impacts in terms of the appropriate regulatory standards. I am not completely satisfied that during operations the current background levels will be maintained, and those whose health worries or work commitments require daytime rest could be particularly affected, depending on the wind. (See Exhibit A5 , Exhibit C13, and Mr Challis' comments in Exhibit C23 at fols 194-197). However, Council conceded that its expert's primary concerns had been answered.
The court has considered the evidence of Holmes ( Exhibit A4) and Stephenson ( Exhibit C12) . Dust is a particular concern for many objectors (and/or their children) with asthma, but the evidence satisfies the court that adverse dust impacts are unlikely to flow from the proposal - even though some peak dust emissions may be detectable they are well within EPA goals and guidelines.
Odour would assume more importance at the later stages of the development, when landfill activities begin and expand. However no putrescible waste is to be accepted at this proposed landfill, and the court is satisfied on the evidence that even the " peak " and " average " emissions which may be detectable fall well within the " most stringent EPA odour " goals and guidelines for even putrescible waste operations, when assessed from within the caravan park ( Exhibit A4 p 6). Council conceded that with non-putrescible wastes only, the potential to generate odour and gas is " negligible ".
The operations will be visible to only some surrounding properties, and then to only a very small extent, and, in view of the buffer area, screening proposals, and other conditions proposed, the court is satisfied that any visual impact from this proposal will be minimal.
I am satisfied that, insofar as any intervention is necessary, the impacts considered in this section of this judgment will be adequately covered by the agreed conditions.
Issues 15 to 17 as raised in the Statement of Issues filed on 24 January (summarised in pars (i) and (j) of par 98 above) were as follows: 15. Whether the development will have an unacceptable adverse impact upon remnant Cumberland Plain Woodland located upon the site. 16. Whether the development is likely to impose a significant effect on threatened species, populations or ecological communities or their habitats. 17. Whether the development will have an adverse impact upon native flora, fauna and their habitats.
The subject site has some history of ecological relevance, having been included in a 1936 proclamation under the Birds and Animals Protection Act 1918-1930( Exhibit C24 ).
On behalf of Ganian, Gunninah (Fanning) prepared reports on " flora and fauna assessment " in March 1998 ( Exhibit C9 Appendix 4) and November 1999 ( Exhibit C11 Appendix 3), both of which concluded that the proposal would have no significant effect on any threatened species, population or ecological community or their habitats.
Mr Fanning authored a statement of evidence ( Exhibit A6 ), provided a curriculum vitae ( Exhibit A14 ), and gave oral evidence. Fanning has 25 years experience as a practising ecologist and has done many relevant studies. His organisation worked on site over several days and the NPWS considered its " flora and fauna survey work " for the EIS to be " adequate ", and concluded that it appeared unlikely that the proposal will " impact on threatened species " ( Exhibit C18 fol 17).
Council relied on the statement of evidence ( Exhibit C16 ) of Dr Graeme Wells and his oral evidence. As a High School teacher in the region of the subject site since 1991 (Science and Agriculture at Riverstone High School), Dr Wells became concerned when his students informed him of the proposal, and he lodged an objection ( Exhibit C23 fol 58) on a form he obtained at a protest meeting at the Mosque, before he had seen the EIS.
Wells was to be a lay witness ( Exhibit A12 ), but was then engaged to prepare an expert report and made two inspections, which he said took " an hour or so " and " about two hours " respectively (T1.6.00 pp 133-4). He conceded he had limited consulting experience and had done no threatened species surveys. (T1.6.00 p132).
The area where the proposed uses will be carried out, and cause most impact, is already highly disturbed, from long-term grazing, clearing, fire, etc. ( Exhibit C8 p4-10). In this context, the only vegetation community of potentially serious concern is the Cumberland Plain Woodland (" CPW "), of which the subject site has a " significant remnant " ( Exhibit C8 pp 4-12 and Exhibit C11 , Appendix 3, p1).
The NPWS (T6.6.00 p357ff) has identified up to 7,000ha of CPW in NSW and the experts agree that CPW has " high habitat value ". The proposed clearing covers about 1ha, which the NPWS has mapped as " shale-gravel transition forest ", valued as " relatively low quality ", and not CPW (Exhibit A15 and Exhibit A16 ). Fanning concluded that even if the clearing of perhaps " a few hundred " trees of varying sizes and ages from the subject site (T6.6.00 p352) did affect CPW, it would not be a " significant effect " or have " an unacceptable adverse impact " upon CPW on the site ( Exhibit A6 p5), and he welcomed the proposed substantial replacement plantings on the site (T6.6.00 p362).
When asked if the subject site is " relatively rich in native fauna ", Fanning responded: " Relative to other areas of western Sydney which have similar stands of vegetation, no" (see T6.6.00 p345 lines 25 to 40).
He also commented (T6.6.00 p347 lines 46-53): … there are substantial areas of vegetation in close proximity to this site which are currently proposed for or will certainly be reserved so there will be substantial amounts of vegetation retained in western Sydney and it's my contention that neither this development nor the incremental activities would significantly reduce the assemblage [of native fauna] in that area.
Fanning acknowledged the importance of habitat provided by various waterbodies on the subject site, but noted it to be of varying quality (T6.6.00 pp352-3). There is a complaint that two of the waterbodies currently on the subject site are to be " lost " as a consequence of this proposal - the old quarry itself, will be " pumped out ", and the dam to its near south-west is to be drained to become a leachate dam. In regard to the second of these, Fanning says leachate dams can be managed so as to continue to provide at least some valuable habitat, and certainly to pose no threat to wildlife.
The thrust of all Fanning's evidence, not diminished either by Wells' evidence, or by Mr Craig's cross-examination, is that: no native flora and fauna species are likely to be adversely affected to any 'significant' or meaningful extent by the proposed activity .
I accept that conclusion, in the context of the proposed appropriate and environmentally sensitive " impact amelioration and environmental management measures " ( Exhibit A6 p8). In the end analysis, these flora/fauna issues did not loom large in the Council's case, and can be satisfactorily addressed by conditions.
As noted earlier, the quarry site is located on a high point of the subject site and " drains " radially down gentle slopes. The testing carried out indicated " generally " low conductivities due to the relative " tightness " of Bringelly Shale ( Exhibit A22 ).
One waterbody, generally referred to in the evidence as " the wetland " (and generally referred to as " dam 4 " on fig 1 of Exhibit C11 , or on Exhibit A11) is acknowledged, and was viewed on site, as providing good habitat for birdlife. It is some distance from the quarry site, slightly downslope and south-east of it, but there is no conclusive evidence regarding the relationship between the two waterbodies and possible impact on the wetland of the dewatering of the quarry, which the testing indicates was filled, mainly but slowly, by surface runoff of lower salinity than the groundwater on site.
The court had the benefit of the expert reports and oral evidence of Greenwood for the Council ( Exhibit C17 ) and Nash for the applicant ( Exhibit C9 Appendix 2, Exhibit A3 and Exhibit A22 ).
While I generally accept Nash's evidence on these matters, the less locally experienced Greenwood fairly made relevant concessions in cross-examination, and I have, therefore, concluded that the dewatering of the quarry is highly unlikely to have any impact on the wetland (see Nash T8.6.00 p514 lines 25-50).
I have also concluded from a close consideration of their evidence, that there is little likelihood of any unmanageable problems with " hydraulic uplift " as the quarry void gets deeper and larger, and little likelihood, if any at all, that the proposal will have a deleterious impact on the groundwaters on the subject site, such that extensive ponding for evaporation purposes will be needed (see Nash's response to Greenwood, Exhibit A22 ).
This appeal is not conclusive of the licensing of the proposed landfill, and/or the terms of the LEMP to be stipulated by the EPA (see Exhibit A3 - Appendix B), but there was considerable evidence regarding the utility and workings of the clay and synthetic " liners " proposed for the landfill.
Greenwood has quite extensive landfill experience from the UK, but limited pre-Ganian experience in Australia. He was briefed by the Council to review Nash's work and made a 3 hour inspection of the site on 2 May 2000.
On the other hand, Douglas Partners (Nash's company) had been involved in the EIS. It recommended the subject site as " quite ideal " (in the sense that " it's not likely that we'd find a site that was more suitable " - T7.6.00 p477 lines 50-54) for a landfill, but also recommended installation of a " re-compacted clay leachate barrier " (T7.6.00 p477 line 42), which would be a " fairly standard procedure " on this site (T8.6.00 p516 lines 36-7).
Nash defines " leachate " as " essentially groundwater that's percolated through waste material and picked up chemical contaminants " (T7.6.00 p486 lines 42-3). He identified leachate and methane (" landfill gas" ) as the by-products of landfill operations, but sites taking class 2 wastes, as here proposed, generate " generally very limited " landfill gas, and usually do not need gas monitoring or mitigation measures " other than the provision of a liner and a capping system " (T8.6.00 p50 lines 8-9).
The " dam " to the south-west of the quarry (No.3 on Exhibit A11 ) is to be the leachate dam for the landfill operation, and a new dam is to be constructed south of it as a sedimentation pond. The leachate dam will have to comply with the EPA guidelines as to lining, etc. In fact, the LEMP would address in turn 39 benchmarks in those guidelines (T8.6.00 p517 lines 5-17).
I am satisfied that all these water-related issues can be satisfactorily dealt with by conditions.
The applicant has consistently argued that all environmental concerns can be adequately addressed by conditions and, in the end, as there was little difference between the parties, I have concluded that the court will have little difficulty in settling a schedule of conditions appropriate to all environmental aspects of this proposal, as they have been considered above.
I must, therefore, now deal with the central question as to whether, in those circumstances, the court should grant consent to the development as proposed. The questions that arise are:
· how do the resources prove up? · is their extraction " economically viable "? · are there markets for them? · is there now a social/economic value/need in their exploitation?
[See Golden (at 115), and Nerasko Pty Ltd v Coffs Harbour City Council [No.2] (1990) 70 LGRA 50 (at 60)].
The court has had the benefit of the evidence of three witnesses who have had practical as well as theoretical experience of the quarrying industry - Reed, McLellan and Wearn. Reed and Wearn have run quarries, and McLellan has assessed and overseen the establishment and operation of quarries.
As noted earlier in this judgment, the quarry products identified on the subject site are breccia and clay/shale. The breccia on site is volcanic in origin and so is more igneous than sedimentary. It is proposed to rip it rather than blast it, and the evidence indicates that ripping is more expensive than blasting, and that ripping of igneous rock is more difficult than sedimentary rock ( Exhibit A24 ). The Council says that ripping is not economically feasible, that it may render the breccia even less useful and marketable than its geological properties might otherwise indicate, and that it may not be physically feasible anyway.
The applicant acknowledges that, to be marketable, the breccia from this site may need to be stabilised and/or blended. Stabilisation involves using on it lime, cement or flyash, which operate chemically to help the breccia " aggregate " when watered (T6.6.00 p 373). Blending involves mixing it with " harder " rock to ensure that the mixed material meets the required specification. McLennan would expect the blended product to be more likely 75% breccia than only 50% breccia (T7.6.00 p 43 lines 40ff). Both operations would be done in a pug mill, probably largely on site (T1.6.00 p 207). The applicant also concedes that whatever cannot be ripped, will be left on site (T6.6.00 pp 381f), but it is confident that modern machinery can successfully rip the breccia ( Exhibit A21 and Exhibit A24 ).
Wearn 's father established the family plant hire, quarrying and transport business in about 1962. Robert Wearn himself has worked full-time in that business since he left school in 1981, managing its Bradley Street Quarry for some years prior to his taking primary responsibility for the conduct of the whole business, at age 22, when his father was accidentally killed in February 1986. The business then had about 35 employees.
While Wearn is hardly an independent expert witness, the court is satisfied of his lifelong experience since age 13 of " dozers and scrapers " etc. (T8.6.00 p 518 lines 52-3), of his post-secondary education in engineering and surface mining (T p 519), and of his extensive commercial, practical and marketing experience and expertise relevant to the proposal before the court (T p 519).
Wearn gave evidence primarily about the general feasibility of " ripping " the quarry materials at the subject site, and the marketability of those materials.
He accepted responsibility for the marketing content of the EIS (T p 545). The Wearns' own business at its two sites in Penrith has been the quarrying of road base and fill and shoulder materials, and brickmaking shales, across a wide range (T p 521-3), and it has also " bought in " and " on sold " such materials, including breccia and shale of similar quality to that identified on the subject site.
The Wearn business has also involved transportation, contract mining and drilling, and materials testing (see generally T p 527-542). Wearn himself has extensive ripping experience (T p 545), he knows relevant machinery (T p 548ff), and he claimed he and his brother are " probably the biggest selective miners in Sydney " (T p 541). Among their major clients are objectors CSR/PGH and Austral Brick, for whom Wearns have worked since the late 1960s (T p 524). The subject site is handily located to those customers (T p 524).
Wearn has more personal practical experience of ripping materials and selective mining than the other witnesses, and, in his opinion, the breccia on the subject site can be successfully ripped, and the layers of shale mined to a degree (30cm) sufficiently fine to avoid their contamination.
While there is substantial disagreement between Reed and McLellan on a large number of relevant issues, each respects the other, and one matter on which they agree is the independence, competence and reliability of Dr H D Hensel , of Hensel Geosciences, whose commentary on the two samples of breccia from the subject site, dated 21 October 1997, forms, with Coffey Partners' test results, Appendix 3 to McLellan's report ( Exhibit A7 ).
Hensel's conclusion regarding the two samples (referred to by sampling source as H6 and MP12) states as follows: Both samples are very unusual rocks, originating by obscure processes where rocks of totally contrasting and chemically incompatible compositions have been physically mixed and placed into an environment in which further reaction is inhibited. H6 is highly altered and contains rock fragments and minerals in proportions that are usually unacceptable for any civil engineering applications. It is also very fragile and unlikely to pass the common physical tests necessary for engineering materials. MP12 is better in that it consists mostly of carbonate within a basaltic groundmass. This provides additional strength but a combination of rock fragments that perform poorly in most situations and most tests, plus a systematic fracture pattern suggests that this rock also is unsuitable for most engineering applications.
McLellan says that Hensel's commentary was " predicated on the assumption that this material was going to be targeted as a higher valued specified product " (T7.6.00 p 436 lines 25-30).
The various samples taken from the site underwent a series of tests, and Reed and McLellan gave comprehensive evidence regarding the importance of such testing and the significance of results obtained, regarding such qualities as plasticity, weathering, durability, wet/dry variation, etc.
Both Reed and McLellan were impressive witnesses, but I will not attempt to summarise their evidence, as it was extensive and complex. However, it should be noted that to some extent they operated at cross-purposes.
The applicant's case is that the breccia from this site will go to the lower (" unspecified ") end of the fill/roadbase market, in possibly a blended form. The Council's case is that the breccia market has been declining and the Marsden Park material is not suitable for a higher use, and probably not suitable for the use seen by the applicant, as Reed does not regard breccia as "the best cheap material available " (T5.6.00 p 291 line 43), and exposure to the elements may lead to its rapid breakdown.
Reed says that the breccia on this site is not of particular value, importance or significance, and that the market for it will be doubtful and spasmodic, causing "major imbalances between quarry production and sales ", which, in turn, will cause " substantial (if not massive) stockpiling and/or dumping of overburden, waste and unbalanced production of breccia and/or shale " ( Exhibit C15 par 32).
The Council is concerned that the spasmodic nature of these markets will exacerbate the environment impacts of which the objectors complained.
Reed also took a very pessimistic view of the shale on site - he did not see it as the dominant rock in the sediments; it would be hard to selectively quarry without contamination; and he would be surprised if premium quality shale was significant in the total shale quarried (T1.6.00 pp 209-11).
In so far as Reed says that the applicant will not be able to sell these products, the first-hand evidence of Wearn demonstrates the contrary, but the court also recognises the importance of the evidence that road authorities are raising their specifications, and that environmental policies are moving the community and industry towards greater reliance on recycled materials, such as slags and building concrete waste (see T5.6.00 pp 286ff).
There is substantial evidence of the possible destinations for the quarried material close to its source, so reducing transport costs. Examples of nearby major developments where breccia and waste shale could be used as fill include the ADI site, the Castlereagh Freeway, the Rouse Hill Development Area and the Castlereagh Waste Management Centre. In the case of this last site, the capping works would require some three times the total quarry output of the subject site ( Exhibit A23 ).
In any event, the reality of this proposal is that it has two " prongs ", and maximising quarry profits is not the sole objective - the applicant wants, and indeed needs, to get the product out and off the site, to some extent regardless of quality or price, so that the landfill operation (the primary business of the consortium involved in both PWS and Ganian) can succeed.
McLellan retired in March 1999 after 35 years experience in exploration, and 19 years or so as chief geologist for CSR Construction Materials, assessing quarry proposals and commissioning environmental studies.
His opinion is that breccia from the subject site is suitable for use as fill, stabilised sub-base and shoulder material (T6.6.00 p 413 line 10), that it is of higher quality than Reed thought, " comparable with most of the product " coming from other relevant sources (T6.6.00 p 374 line 38) and able to be marketed (T9.6.00 p 469f), and that the shale from the site is cream-burning (T p 377), for which there is a good market, despite what was said by some industry objectors (T7.6.00 p 466f). McLellan was still a senior officer of CSR when its objections (see pars 147-149 above) were submitted, and he was very critical of their contents (T7.6.00 pp 461-3).
McLellan was very confident that the breccia on site could be " ripped ", effectively and with little damage (T7.6.00 p 455ff). He was also confident that most of it was less likely to " weather " than that which is currently visible on the subject site (see Exhibit A17 , and T p439 lines 40ff).
He gave strong evidence of a market need for both the quarry products, and of the community benefit from shorter haulage ( Exhibit A7 p 16). His opinion is that the poorer, weathered breccia would give way to fair quality fresh rock at about RL 30, the assumed floor of the old quarry ( Exhibit A7 p 8, and T6.6.00 p 386 lines 1-5), and that the subject site is the only known potential source of such base material in the metropolitan area, other than sandstone, which comes on market spasmodically as suitable projects evolve ( Exhibit A7 p 14).
I prefer the evidence of McLellan, and I am satisfied that, assisted by that of Wearn and Reed, it discharges the onus on the applicant, regarding the project itself, given that its impacts can be successfully conditioned.
I adopt for my conclusion in this case the words used by Stein J in Golden (at 115): … it is likely that sufficient quantities are available to make the project economically viable. I am generally satisfied there is sufficient material of sufficient quality to justify extraction subject to satisfaction of reasonable environmental impacts.
This development is to be approved, but it needs to be on stringent and comprehensive conditions of consent.
The Council's " final " draft of suggested conditions is acceptable to the applicant except in three respects. The acceptable conditions cover various controversial matters dealt with in the evidence, and in this judgment, including, importantly, the LEMP, which, in turn, will include a Water Management Plan, and I am generally satisfied with the adequacy of the agreed conditions.
The three disputes between the parties concern: (i) the specific matters which must be included in the Quarry Plan of Management (Condition 15). (ii) weather-related exceptions to noise emission limitations (Condition 35). (iii) the extent to which material may be stockpiled on the site (Condition 44).
The Council's position on condition 15 is that it has consistently found and argued " uncertainties " in the application as presented to the court (see par 118 above), and the hearing indicated that some modifications will need to be made to the detail available to it and the court in the EIS and " response " document, referred to in pars 46ff above and in condition 1. One example cited by Council is the lack of precision/commitment in specifying the separation distance between the quarry and the landfill.
The Council argues that the Plan of Management must clarify, as far as possible, the precise parameters and details of the development in one " single unambiguous document which can … stand alone ". The applicant's written submissions detail where a lot of the information listed in the draft condition can be found in the existing documentation.
Several items refer more to landfilling than to quarrying operations, and may also be covered in the LEMP, but, during much of the proposed 25 year life of the project, both operations will be occurring simultaneously in the same excavation.
I do not think that the Council's position is unreasonable, and, the council's draft of condition 15 should be the one imposed.
Turning to condition 35 , I note again the sensitivity of the neighbours, including the caravan park residents, to the cumulative effect of the unavoidable environmental impacts, such as noise.
The dispute concerns whether the exceptions to the noise control conditions should include temperature inversions - Council requires the applicant to satisfy the standard nominated in the condition, notwithstanding the presence of temperature inversions - and it relies on Cooper's report ( Exhibit C13 ).
I have, and have expressed, some misgivings on the noise question (see par 170 above), and I accept the Council's concern about the weather. Accordingly, I prefer its version of the appropriate condition.
Draft condition 44 deals with stockpiles in these terms: Stockpiles of excavated material should be restricted to 145,000m3 and a height limit generally not exceeding 7 metres located within the bund wall enclosures .
That is the wording preferred by the applicant, but Council prefers an earlier draft condition, No.59, which would limit stockpiling to the footprint shown in the EIS and the response document.
Council argues - for the first time at the very end of the hearing - that " the location and size of … stockpiles is [sic] an important consideration in terms of many issues such as erosion, leachate and run-off, vegetation clearance visual amenity ". Council submitted that condition 44 does not adequately define the location for stockpiles, but would allow for 2.17ha of the site to be used without appropriate environmental assessment and controls.
Stockpiling needs will depend on the degree of regularity of success achieved in selling the material which is quarried to provide a void for the landfill. The evidence also raised the possibility of importing and stockpiling material to blend with the quarried material to improve its sale prospects.
I am satisfied with the applicant's evidence on the stockpiling issue, and I am content to adopt the applicant's preferred wording of the condition.
In their written submissions on disputed conditions 15, 35 and 44, solicitors for Council added notes regarding " Engineering Condition (w ) " and condition 47 . As I heard nothing to the contrary from the applicant's representatives, I will make the amendments Council suggested. Engineering Condition (w) should be renumbered "(s)".
I have determined that the appeal should be allowed , and consent granted on the conditions agreed and/or determined by the court.
It was of singular significance, in the Court's arriving at this decision, that the applicant abandoned blasting as its preferred method of winning the quarry products. Without blasting, the environmental impacts of the proposal, though not insignificant, become capable of adequate amelioration by conditions, to most of which the applicant was prepared to agree, despite their impact on the profitability of at least the quarrying component of the proposal.
The formal orders of the court will be as follows: 1. Appeal 10942 of 1999 is allowed . 2. Development Application 98/2962 submitted to Blacktown City Council by Ganian Pty Ltd, as amended, for " extractive industry and landfill " on Lots 8 to 16, 26 to 29, 32 to 36, and 47 of Deposited Plan 262886, is determined by grant of Development Consent upon the conditions set out in Annexure 'A' hereto. 3. There will be no order as to costs. 4. All the exhibits may be returned.
Scope of Consent
Drawing No Drawing Title Fig. 30 (EIS) Alternative Access Route (Option 4) Fig. 1 (Response Document) Site Characteristics Fig. 13 (EIS) Water Management Structures and Plant Site Fig. 2-6 (Response Document) & Fig.19 Stages 1 to 6 (EIS) Final Landform Fig. 22 (EIS) Final Landuse Fig.33 (EIS)
(a) quarry boundaries and bench orientation, height, width, inclination etc;
(i) provision of adequate water supply for operational and domestic uses;
(j) potentially turbid run off from disturbed areas;
(k) leachate generate, ground water inflow and run off from uncovered waste;
(m) disposal of seepage water, water from any liner pressure relief system and leachate;
(n) the potential for acid water and sulphate contamination in seepage water and any liner pressure relief system;
(p) the management of soil erosion and sediment control;
(y) measures to protect bordering remnant Cumberland Plain Woodland;
(b) provision for minimisation of soil erosion and planting of local endemic plant species on regeneration areas;
(c) an indication of the ares of Cumberland Plain Woodland to be removed, or the areas which have reasonable potential to be disturbed;
(d) issues related to the breeding and nesting habitats of species, home range requirements and relocation into the home range of other individuals of the same species, should be considered;
(e) areas that were once woodland which may have the potential to regenerate from seed bank stored in the soil, particularly where disturbances such as grazing, mowing and fire regimes cease (so long as this does not prevent grazing).
(b) limiting receipt of other odorous material and biodegradable material (including green waste); and
(c) immediate cover and compaction of cover to 150 millimetre depth after tipping of odorous material and at the end of each working shift. 31. No filling or earthworks carried out on the site shall interfere with the existing natural drainage system unless approved in the Water Management Plan as required by condition 6.
Except as provided in conditions 33 and 34 the hours of operation of the extractive industry shall not be outside of the following times: (a) 7am to 6pm Mondays to Fridays;
(c) No work is to be carried out on Sundays or public holidays.
Product truck loading must not commence before 6:30am and must not take place on Sundays and Public Holidays.
The hours of operation of the landfill activity shall not be outside of the following times:
Noise emissions from the site under all weather conditions (except during rain, wind speeds greater than 3m/s and, prior to 7am, temperature inversions of 4oC/100m or greater) shall not exceed an LAeq (15minutes) of the sound contribution level of: (a) 45dBA to residents north of the site;
(b) 39dBA to residents south of the site between the hours of 7am to 6pm and 35dBA between the hours of 6:30am to 7am.
During the period of 6am to 7am (which is part of defined night-time) the L(1 minute) noise level contribution when measured outside any bedroom window of any residential premises shall not exceed the L90 background level by more than 15 dBA to protect the sleep amenity of nearby residents.
Noise control measures on mobile plant, trucks etc need to be maintained throughout the life of the operation.
Compliance with the following requirements of the Roads and Traffic Authority:
(a) Site access off Richmond Road is to be provided in accordance with "Option 4" as outlined in the Traffic Report prepared by Chris Hallam and Associates. This access point is located some 600 metres north of Townson Road which was previously used as an access point to a former Council Depot.
(b) Detailed road design plans at this location showing a "seagull island" treatment to Austroad Standards shall be forwarded to the RTA for approval prior to the commencement of any roadworks. However, prior to design plans being forwarded to the RTA, consultation with State Network Services, Blacktown (telephone 9831-0030) will need to take place to ensure the RTA requirements are satisfied.
(c) It may be noted that a plan checking fee (amount to be advised) and lodgement of a performance bond will be required prior to the release of the approved plans by the RTA.
(d) All roadworks/linemarking associated with the proposal will be at no cost to the RTA.
Compliance with the engineering requirements as detailed in Attachment A - Engineering Conditions.
All loading and unloading operations are to take place at all times wholly within the confines of the site.
Quarry product loading areas are to be sealed, drained and provided with dust suppression facilities. Stock pile areas are to be constructed of suitable materials to minimise dust.
The rehabilitation of any disturbed site should be at least to the level of agricultural suitability that existed prior to extraction.
Litter fences shall be erected (where appropriate) to contain litter to the landfill area and to ensure that windblown litter does not impact upon surrounding remnant woodland habitat, artificial wetlands and ephemeral creeks. The fence shall be of an adequate height to contain windblown litter.
Stock piles of excavated material should be restricted to 145,000m3 and a height limited generally not exceeding 7 metres located within the bund wall enclosures.
The applicant shall consult with the Department of Land and Water Conservation to ascertain what, if any permits are required for the release of quarry water to the surrounding natural watercourses. (For example the method of release, location, timing, magnitude and duration of release.)
The applicant shall conduct additional chemical testing prior to the commencement of works to confirm that the existing quarry water may be released to streams in accordance with the requirements of the Hawkesbury Nepean Catchment Management Trust and the Department of Land and Water Conservation.
The applicant shall obtain a Part 3A Permit from DLWC if required for all dams, and particularly to enlarge the existing on-site dam to be used for water/leachate management located in the southwest portion of Lot 47.
The dams and watercourses, excluding the operational dams, are to be managed to protect the habitat value for the water birds which are present on the site.
Water to be used for operations on the site shall not be sourced from wetlands.
The operator shall not carry out any blasting operations on the site.
The applicant shall construct a security fence around the full length of the working area of the site.
Should any relic or Aboriginal site be found which is likely to be disturbed, consent to destroy must be obtained from the National Parks and Wildlife Service prior to any disturbance occurring.
The applicant must comply with the following requirements of TransGrid: (a) Adequate clearance must be maintained under and near the transmission line;
(b) Access to the transmission line structures shall be available at all times to TransGrid plant and personnel;
(c) In this regard an unobstructed access way shall be retained along the easement. Notwithstanding where vehicle access is not available along the easement for geographic reasons (ie valleys, cliffs, escarpments, rivers, water courses etc) suitable alternative vehicle access (4.5 metres wide) shall be provided. Access gates shall be installed in an agreed location;
(d) Excavation work or other alterations to existing ground levels shall not be carried out within the easement area without the prior written approval of TransGrid. Approval will not normally be granted for such work within 16 metres of any supporting structure;
(e) Obstructions of any type shall not be placed within 15 metres of any part of a transmission line structure;
(f) All proposed activities within the easement area require approval from TransGrid;
(g) Consultation with the Engineering Officer Easements (telephone 9620-0777) will need to take place to ensure that TransGrid requirements are satisfied.
Separate consent must be obtained for: (a) The proposed recycling facility;
(b) Any gas extraction facility; (c) The future end use of the site;
(d) Any further development areas covered by Cumberland Plain Woodland not approved by the LMP;
(e) Any other buildings to be erected on the site. 55. A bank guarantee for the sum of $250,000 is to be submitted to Council, unless a similar sum is lodged with the EPA as a condition of an Environment Protection Licence, to ensure the rehabilitation of the site. If paid to Council the bank guarantee will be released 12 months after the satisfactory completion of site rehabilitation works and subject to the establishment and maintenance of satisfactory landscaping following the closure of the approved landfill operations.
(a) The development shall in all respects comply with the applicable requirements of Council's Adopted Soil Erosion and Sediment Control Policy. Separate details indicating how compliance will be achieved shall be submitted to and approved by Council prior to commencement of the development;
(b) Existing vegetation must be left undisturbed except where roads, drainage, filling and/or quarry works are proposed;
(c) Re-vegetation must take place on disturbed areas as soon as practical after completion of the works or when directed by Council and must be established to a predetermined schedule which shall be submitted within 4 weeks of the issue of a construction certificate;
(d) Details of the site drainage system must be submitted to and approved by the Development Services Engineer prior to commencement of any construction. A 1 in 10 year ARI with a 6 hour duration is to be used for stormwater drainage design. Suitable siltation interceptors shall be provided within the drainage system. Where drainage involves the provision of drainage across land owned by others, evidence of the creation of necessary easements must be lodged with Council with the details of the site drainage system.
(e) Written evidence shall be lodged with Council indicating compliance with the requirements of the Roads and Traffic Authority in regard to access to the site from Richmond Road, including payment of any works supervision fees required by the Roads and Traffic Authority.
(f) Access to the site shall be via Richmond Road only.
(g) The proposed internal access road shall be sealed (two coat tar sealing) for its entire length and maintained in an appropriate manner. Approved "shaker" facilities shall be provided in appropriate locations.
(h) Sediment dams and leachate pond walls which are constructed above natural ground level and are designed to hold water above natural ground level must be compacted in accordance with Council's " Works Specification Civil 1997 " and, if required, provided with approved "liners".
(i) The sediment dams and leachate ponds must be designed and constructed to permit rapid draining and mechanical removal of solid wastes.
(j) Prior to engineering plan approval, a Maintenance Program to provide for the ongoing maintenance of the sediment dams and leachate ponds shall be prepared by a suitably qualified engineering/environmental consultant and approved by Council's Development Services Engineer. The maintenance program shall apply for the duration of development approved by this consent.
(k) All vehicles transporting fill/rubbish to/from the site shall have their loads covered at all times.
(l) All plant and equipment powered or propelled by internal combustion or diesel engines used on the site must be properly maintained to ensure exhaust emissions comply with the relevant provisions of the Protection of the Environment Operations Act 1997.
(m) The applicant is to be responsible for the removal, collection and disposal of windblown and casually deposited litter from the site within 1km of the entrance to the site from Richmond Road and along the whole of Hollinsworth and South Street. The applicant is not responsible for the removal, collection and disposal of illegally or deliberately dumped rubbish in the above area, such as cars and items of furniture.
(n) Seven days written notice must be given of the commencement of the engineering works and must be accompanied by evidence of the contractor's Public Liability and Workers Compensation Insurances.
(o) All Engineering work required by the Director Development & Regulatory Services, MUST be inspected, by Council's Engineering Development Supervisor who can be contacted by phoning 9830-9717 between 7:00am & 8:00am or 12.30pm & 1.30pm). 24 hours notice must be given. Fees must be paid prior to contact.
(p) NOTE : A separate submission of the details of engineering works required by this Notice must be made to Council's Director Development & Regulatory Services.
(q) An application for practical completion shall be accompanied by Form SEW20, a copy of which will be sent with the approved engineering plans. A copy can also be found in Council's " Engineering Guide for Development 1997 ".
(r) A work-as-executed plan (to a standard suitable for microfilming) under the hand of a Chartered Professional Engineer or a Registered Surveyor must be lodged when the engineering works are complete. In addition a certificate in Council's standard format shall be submitted by a Registered Surveyor indicating that all pipelines and associated structures lie wholly within any easements required by the engineering works.
(s) An estimate of the cost of engineering work must be submitted to Council prior to approval of the engineering plans. If engineering works are of value greater than $25,000, documentary proof of the payment of the levy required by the Building and Construction Industry Long Service Payments Act must also be provided to Council prior to approval of the engineering plans.
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.
239. That is the wording preferred by the applicant, but Council prefers an earlier draft condition, No.59, which would limit stockpiling to the footprint shown in the EIS and the response document.
240. Council argues - for the first time at the very end of the hearing - that "the location and size of ... stockpiles is [sic] an important consideration in terms of many issues such as erosion, leachate and run-off, vegetation clearance visual amenity". Council submitted that condition 44 does not adequately define the location for stockpiles, but would allow for 2.17ha of the site to be used without appropriate environmental assessment and controls.
241. Stockpiling needs will depend on the degree of regularity of success achieved in selling the material which is quarried to provide a void for the landfill. The evidence also raised the possibility of importing and stockpiling material to blend with the quarried material to improve its sale prospects.
242. I am satisfied with the applicant's evidence on the stockpiling issue, and I am content to adopt the applicant's preferred wording of the condition.
243. In their written submissions on disputed conditions 15, 35 and 44, solicitors for Council added notes regarding "Engineering Condition (w)" and condition 47. As I heard nothing to the contrary from the applicant's representatives, I will make the amendments Council suggested. Engineering Condition (w) should be renumbered "(s)".
244. I have determined that the appeal should be allowed, and consent granted on the conditions agreed and/or determined by the court.
245. It was of singular significance, in the Court's arriving at this decision, that the applicant abandoned blasting as its preferred method of winning the quarry products. Without blasting, the environmental impacts of the proposal, though not insignificant, become capable of adequate amelioration by conditions, to most of which the applicant was prepared to agree, despite their impact on the profitability of at least the quarrying component of the proposal.
246. The formal orders of the court will be as follows:
2. Development Application 98/2962 submitted to Blacktown City Council by Ganian Pty Ltd, as amended, for "extractive industry and landfill" on Lots 8 to 16, 26 to 29, 32 to 36, and 47 of Deposited Plan 262886, is determined by grant of Development Consent upon the conditions set out in Annexure `A' hereto.
Land & Environment Court Matter No. 10942 OF 1999
1. Development to take place generally in accordance with the documents entitled "Environmental Impact Statement for a Proposed Extractive Industry and Landfill at Marsden Park" Volumes 1, 2 and 3 ("EIS") (dated May 1998) as amended by "Response to Council, Authority and Community Issues Regarding the Application for Extractive Industry and Landfill Proposal, Marsden Park NSW" ("Response Document") (dated November 1999) prepared by Enviro-Managers. In particular, development to take place generally in accordance with the following drawings, subject to compliance with any other conditions of this consent.
2. A Landfill Environmental Management Plan ("LEMP") shall be prepared as part of the licensing requirements of the Environment Protection Authority ("EPA") and a copy of the LEMP shall be provided to the Council prior to the commencement of any landfill activity. All landfill approved by this consent shall be undertaken in accordance with the LEMP other than where it may be inconsistent with a licence issued by the EPA.
3. The LEMP shall include details of the design, operation and management of the land fill in accordance with the EPA benchmark criteria (as set out in the Solid Waste Landfill Guidelines)- The LEMP shall also include a quality assurance programme (for land fill construction) and demonstrate how the design complies with the benchmark criteria of the EPA.
4. The LEMP shall contain calculations to justify settlement estimates of 3 to 5 metres for the final height of the landform.
5. The LEMP shall consider the waste reduction goals as outlined in the Western Sydney Regional Waste Plan and the Waste Minimisation and Management Act 1995 and shall report on:
(a) the nature and quantity of wastes to be received;
(b) the type and extent of recycling to be conducted;
(c) means of disposing of any waste of a different classification to that approved for disposal;
(d) measures proposed and/or required to minimise environmental harm;
(e) mechanics for preventing groundwater and surface water contamination;
(f) measures proposed to minimise the impacts of dust, birds, litter, noise, pest, vermin, odour, traffic and general site maintenance;
(g) the staged introduction of such measures if appropriate;
(h) indicators that will be used to gauge environmental performance of the activity;
(i) measures proposed to define the area of operation in relation to Cumberland Plain Woodland on the subject site;
(j) the degree of control over waste entering the site.
6. The LEMP shall include a Water Management Plan for the site.
7. The Water Management Plan shall address matters such as:
(a) an assessment as to whether water abstraction in the extraction works will impact upon the ecology of the pond to be retained as a nature sanctuary;
(b) the results of additional testing to demonstrate that the existing quarry water can be disposed of to stream and meet the requirements of the Hawkesbury Nepean Catchment Management Trust and the Department of Land and Water Conservation;
(c) provision of adequate water supply for operational and domestic uses;
(d) potentially turbid run-off from disturbed areas;
(e) water requirements and the separating of clean and contaminated run-off before discharge, water treatment, quality and quantity of effluent for disposal;
8. The applicant shall prepare the LEMP in consultation with the NSW Fire Brigades. The LEMP shall generally include the following:
(a) An outline of all fire prevention, protection and fire fighting measures and equipment;
(b) Emergency plan procedures and compliance to the relevant Australian Standards applicable to the development;
(c) Details of required hydrants and hose reels, together with water supplies, location of connections, rate of application supported by full hydraulic calculations being submitted to the NSW Fire Brigades for compliance to the Building Code of Australia;
(e) The Fire Safety Study to comply with the Hazardous Industry Planning Advisory Paper No 2 Fire Safety Guidelines, by the Department of Urban Affairs and Planning.
9. The LEMP shall be prepared in consultation with Western Sydney Waste Board (the "Waste Board") and take into account the aims and objectives of the Regional Waste Plan (as required by the regulation to the Waste Minimisation and Management Act 1995).
10. The LEMP shall be reviewed and updated annually to incorporate any new landfill management techniques or any change to waste management legislation that may affect the site operations, provided that resultant changes to site practice are consistent with this consent.
11. The operator shall provide an up to date survey of the quarry and its surrounds as part of the annual review of the LEMP and the annual survey shall be reconciled with the approved quarry design.
12. The operator of the land fill shall submit an annual report to Council, the EPA and the Waste Board in conjunction with the annual review of the LEMP setting out full details of all materials received by classification and volumes and certifying the degree of compliance that has been achieved for the previous year's LEMP. The annual report shall also address the results of any monitoring required by the development consent.
13. Clear, visible signs are to be erected at the site entrance detailing materials that are excluded from being accepted at the site.
14. Any activity carried out in accordance with this approval shall not give rise to offensive odour, offensive noise or pollution of water as defined within the Protection of the Environment Operations Act 1997.
15. A Plan of Management for all quarry extraction works shall be prepared and submitted to Council prior to the commencement of development and shall cover the following issues provided that if any stage of extraction is modified following submission of the Plan of Management the Applicant shall modify the Plan of Management accordingly:
(a) quarry boundaries and bench orientation, height, width, inclination etc;
(i) provision of adequate water supply for operational and domestic uses;
(j) potentially turbid run off from disturbed areas;
(k) leachate generate, ground water inflow and run off from uncovered waste;
(m) disposal of seepage water, water from any liner pressure relief system and leachate;
(n) the potential for acid water and sulphate contamination in seepage water and any liner pressure relief system;
(p) the management of soil erosion and sediment control;
(y) measures to protect bordering remnant Cumberland Plain Woodland;
16. An annual independent Environmental Management Monitoring Report shall be prepared for the consideration of the EPA and a copy shall be provided to the Council. The report shall include the results of monitoring, as specified by the EPA, of air quality (including gas emissions, dust control), water quality (including all site discharges) and noise quality (including the monitoring and control of ambient conditions at nearby residences).
17. During operation of the quarry and landfilling operations an air quality monitoring network must be established to the satisfaction of EPA and Council. This monitoring should at lease include 30 day dust deposition and 24 hours (6 day cycle) PM10 monitoring. Odour monitoring shall be conducted one day per month. Sites will be selected in consultation with Council and EPA and should at least include the Town and Country Caravan and Mobile Home Park and a residence in South Street.
18. Within periods not exceeding 6 months from the commencement of extraction, acoustics compliance testing of all mechanical plant and site owned equipment shall be carried out to confirm compliance with noise levels as stated in the conditions of development consent (as stated in conditions 35 and 36).
19. Following the closure of landfill activities at the site, the proponent shall continue monitoring of settlement, stormwater, leachate and groundwater at the site to the satisfaction of EPA and Council. The post-closure monitoring shall continue, in accordance with the EIS, until notification to cease is received from Council and the EPA.
20. All earth mounds proposed in the EIS and Response Document are to be in place prior to the commencement of the proposed quarrying and landfill activities for the approved stages. It will be necessary for revegetation of these mounds to commence immediately to minimise dust and soil erosion.
21. The applicant shall submit a Landscape Management Plan (LMP) to Council for approval at least 21 days prior to the commencement of any construction works in the vicinity of remnant vegetation as identified in Figure 9 of the EIS. The LMP shall be prepared by a person suitably qualified in native vegetation management and rehabilitation. The LMP shall include:
(a) a native vegetation management and restoration plan for the Cumberland Plain Woodland on the site which shall also include a plan for the regeneration, rehabilitation and replanting schemes, using local endemic species;
(b) provision for minimisation of soil erosion and planting of local endemic plant species on regeneration areas;
(c) an indication of the ares of Cumberland Plain Woodland to be removed, or the areas which have reasonable potential to be disturbed;
(d) issues related to the breeding and nesting habitats of species, home range requirements and relocation into the home range of other individuals of the same species, should be considered;
(e) areas that were once woodland which may have the potential to regenerate from seed bank stored in the soil, particularly where disturbances such as grazing, mowing and fire regimes cease (so long as this does not prevent grazing).
22. When landfilling operations cease, a landscape regeneration and site rehabilitation plan shall be submitted to Council for approval to define the future land use and aesthetic appearance of the site.
23. Infrastructure construction shall be managed to minimise potential impacts on habitat, including habitat trees.
24. Potential dust sources on the site shall be minimised through the maintenance of as much vegetation as possible during extraction and filling activities and the use of a water truck to suppress exposed areas during periods of dry (>28oC) and windy weather (>8 metres per second).
25. A water truck capable of supplying a water spray at a rate of 1.51/m2/hour will be used to water the unsealed haul road and other trafficked areas to maintain these in a moist, dust free condition. It will most likely be necessary to operate a second or standby water truck to maintain this condition during hot and windy weather and maintenance of the duty water cart.
26. Dust suppression measures utilising water will be installed to spray and wet exposed material surfaces in the crushing plant, screening plant and stockpiles. The delivery rate should exceed 1.51/m2/hour.
27. In periods of high wind (>8 metres per second), it will be necessary to reprogram dust generating activities which cannot be adequately controlled by water or other means and may cause nuisance to people or property.
28. A "drive-through" type wheel and chassis wash and associated rumble strips shall be installed prior to the exit point of the site to ensure that soil material is contained within the site. The design of which should meet EPA construction which in essence means no transmission of on-site generated mud or soil to the off-site roadways, in particular, Richmond Road. A road sweeper may be required if this Condition cannot be complied with.
29. Measures are to be taken during the course of development to ensure satisfactory stabilisation of exposed areas to prevent soil erosion.
30. During land filling operations the emission of odours from the fill will be addressed by:
(b) limiting receipt of other odorous material and biodegradable material (including green waste); and
(c) immediate cover and compaction of cover to 150 millimetre depth after tipping of odorous material and at the end of each working shift.
31. No filling or earthworks carried out on the site shall interfere with the existing natural drainage system unless approved in the Water Management Plan as required by condition 6.
32. Except as provided in conditions 33 and 34 the hours of operation of the extractive industry shall not be outside of the following times:
(c) No work is to be carried out on Sundays or public holidays.
33. Product truck loading must not commence before 6:30am and must not take place on Sundays and Public Holidays.
34. The hours of operation of the landfill activity shall not be outside of the following times:
35. Noise emissions from the site under all weather conditions (except during rain, wind speeds greater than 3m/s and, prior to 7am, temperature inversions of 4oC/100m or greater) shall not exceed an LAeq (15minutes) of the sound contribution level of:
(b) 39dBA to residents south of the site between the hours of 7am to 6pm and 35dBA between the hours of 6:30am to 7am.
36. During the period of 6am to 7am (which is part of defined night-time) the L(1 minute) noise level contribution when measured outside any bedroom window of any residential premises shall not exceed the L90 background level by more than 15 dBA to protect the sleep amenity of nearby residents.
37. Noise control measures on mobile plant, trucks etc need to be maintained throughout the life of the operation.
38. Compliance with the following requirements of the Roads and Traffic Authority:
(a) Site access off Richmond Road is to be provided in accordance with "Option 4" as outlined in the Traffic Report prepared by Chris Hallam and Associates. This access point is located some 600 metres north of Townson Road which was previously used as an access point to a former Council Depot.
(b) Detailed road design plans at this location showing a "seagull island" treatment to Austroad Standards shall be forwarded to the RTA for approval prior to the commencement of any roadworks. However, prior to design plans being forwarded to the RTA, consultation with State Network Services, Blacktown (telephone 9831-0030) will need to take place to ensure the RTA requirements are satisfied.
(c) It may be noted that a plan checking fee (amount to be advised) and lodgement of a performance bond will be required prior to the release of the approved plans by the RTA.
(d) All roadworks/linemarking associated with the proposal will be at no cost to the RTA.
39. Compliance with the engineering requirements as detailed in Attachment A - Engineering Conditions.
40. All loading and unloading operations are to take place at all times wholly within the confines of the site.
41. Quarry product loading areas are to be sealed, drained and provided with dust suppression facilities. Stock pile areas are to be constructed of suitable materials to minimise dust.
42. The rehabilitation of any disturbed site should be at least to the level of agricultural suitability that existed prior to extraction.
43. Litter fences shall be erected (where appropriate) to contain litter to the landfill area and to ensure that windblown litter does not impact upon surrounding remnant woodland habitat, artificial wetlands and ephemeral creeks. The fence shall be of an adequate height to contain windblown litter.
44. Stock piles of excavated material should be restricted to 145,000m3 and a height limited generally not exceeding 7 metres located within the bund wall enclosures.
45. The applicant shall consult with the Department of Land and Water Conservation to ascertain what, if any permits are required for the release of quarry water to the surrounding natural watercourses. (For example the method of release, location, timing, magnitude and duration of release.)
46. The applicant shall conduct additional chemical testing prior to the commencement of works to confirm that the existing quarry water may be released to streams in accordance with the requirements of the Hawkesbury Nepean Catchment Management Trust and the Department of Land and Water Conservation.
47. The applicant shall obtain a Part 3A Permit from DLWC if required for all dams, and particularly to enlarge the existing on-site dam to be used for water/leachate management located in the southwest portion of Lot 47.
48. The dams and watercourses, excluding the operational dams, are to be managed to protect the habitat value for the water birds which are present on the site.
49. Water to be used for operations on the site shall not be sourced from wetlands.
50. The operator shall not carry out any blasting operations on the site.
51. The applicant shall construct a security fence around the full length of the working area of the site.
52. Should any relic or Aboriginal site be found which is likely to be disturbed, consent to destroy must be obtained from the National Parks and Wildlife Service prior to any disturbance occurring.
53. The applicant must comply with the following requirements of TransGrid:
(a) Adequate clearance must be maintained under and near the transmission line;
(b) Access to the transmission line structures shall be available at all times to TransGrid plant and personnel;
(c) In this regard an unobstructed access way shall be retained along the easement. Notwithstanding where vehicle access is not available along the easement for geographic reasons (ie valleys, cliffs, escarpments, rivers, water courses etc) suitable alternative vehicle access (4.5 metres wide) shall be provided. Access gates shall be installed in an agreed location;
(d) Excavation work or other alterations to existing ground levels shall not be carried out within the easement area without the prior written approval of TransGrid. Approval will not normally be granted for such work within 16 metres of any supporting structure;
(e) Obstructions of any type shall not be placed within 15 metres of any part of a transmission line structure;
(f) All proposed activities within the easement area require approval from TransGrid;
(g) Consultation with the Engineering Officer Easements (telephone 9620-0777) will need to take place to ensure that TransGrid requirements are satisfied.
(d) Any further development areas covered by Cumberland Plain Woodland not approved by the LMP;
55. A bank guarantee for the sum of $250,000 is to be submitted to Council, unless a similar sum is lodged with the EPA as a condition of an Environment Protection Licence, to ensure the rehabilitation of the site. If paid to Council the bank guarantee will be released 12 months after the satisfactory completion of site rehabilitation works and subject to the establishment and maintenance of satisfactory landscaping following the closure of the approved landfill operations.
(a) The development shall in all respects comply with the applicable requirements of Council's Adopted Soil Erosion and Sediment Control Policy. Separate details indicating how compliance will be achieved shall be submitted to and approved by Council prior to commencement of the development;
(b) Existing vegetation must be left undisturbed except where roads, drainage, filling and/or quarry works are proposed;
(c) Re-vegetation must take place on disturbed areas as soon as practical after completion of the works or when directed by Council and must be established to a predetermined schedule which shall be submitted within 4 weeks of the issue of a construction certificate;
(d) Details of the site drainage system must be submitted to and approved by the Development Services Engineer prior to commencement of any construction. A 1 in 10 year ARI with a 6 hour duration is to be used for stormwater drainage design. Suitable siltation interceptors shall be provided within the drainage system. Where drainage involves the provision of drainage across land owned by others, evidence of the creation of necessary easements must be lodged with Council with the details of the site drainage system.
(e) Written evidence shall be lodged with Council indicating compliance with the requirements of the Roads and Traffic Authority in regard to access to the site from Richmond Road, including payment of any works supervision fees required by the Roads and Traffic Authority.
(f) Access to the site shall be via Richmond Road only.
(g) The proposed internal access road shall be sealed (two coat tar sealing) for its entire length and maintained in an appropriate manner. Approved "shaker" facilities shall be provided in appropriate locations.
(h) Sediment dams and leachate pond walls which are constructed above natural ground level and are designed to hold water above natural ground level must be compacted in accordance with Council's "Works Specification Civil 1997" and, if required, provided with approved "liners".
(i) The sediment dams and leachate ponds must be designed and constructed to permit rapid draining and mechanical removal of solid wastes.
(j) Prior to engineering plan approval, a Maintenance Program to provide for the ongoing maintenance of the sediment dams and leachate ponds shall be prepared by a suitably qualified engineering/environmental consultant and approved by Council's Development Services Engineer. The maintenance program shall apply for the duration of development approved by this consent.
(k) All vehicles transporting fill/rubbish to/from the site shall have their loads covered at all times.
(l) All plant and equipment powered or propelled by internal combustion or diesel engines used on the site must be properly maintained to ensure exhaust emissions comply with the relevant provisions of the Protection of the Environment Operations Act 1997.
(m) The applicant is to be responsible for the removal, collection and disposal of windblown and casually deposited litter from the site within 1km of the entrance to the site from Richmond Road and along the whole of Hollinsworth and South Street. The applicant is not responsible for the removal, collection and disposal of illegally or deliberately dumped rubbish in the above area, such as cars and items of furniture.
(n) Seven days written notice must be given of the commencement of the engineering works and must be accompanied by evidence of the contractor's Public Liability and Workers Compensation Insurances.
(o) All Engineering work required by the Director Development & Regulatory Services, MUST be inspected, by Council's Engineering Development Supervisor who can be contacted by phoning 9830-9717 between 7:00am & 8:00am or 12.30pm & 1.30pm). 24 hours notice must be given. Fees must be paid prior to contact.
(p) NOTE: A separate submission of the details of engineering works required by this Notice must be made to Council's Director Development & Regulatory Services.
(q) An application for practical completion shall be accompanied by Form SEW20, a copy of which will be sent with the approved engineering plans. A copy can also be found in Council's "Engineering Guide for Development 1997".
(r) A work-as-executed plan (to a standard suitable for microfilming) under the hand of a Chartered Professional Engineer or a Registered Surveyor must be lodged when the engineering works are complete. In addition a certificate in Council's standard format shall be submitted by a Registered Surveyor indicating that all pipelines and associated structures lie wholly within any easements required by the engineering works.
(s) An estimate of the cost of engineering work must be submitted to Council prior to approval of the engineering plans. If engineering works are of value greater than $25,000, documentary proof of the payment of the levy required by the Building and Construction Industry Long Service Payments Act must also be provided to Council prior to approval of the engineering plans.
Ganian Pty Ltd
Blacktown City Council
CITATION : Ganian Pty Ltd v Blacktown City Council [2000] NSWLEC 200 APPLICANT PARTIES : Ganian Pty Ltd RESPONDENT Blacktown City Council FILE NUMBER(S) : 10942 of 1999 CORAM: Sheahan J KEY ISSUES: Development Application :- designated development - extractive industry and landfill - refusal by Council - amendment of proposal - environmental impact - consent granted - conditions Birds and Animals Protection Act 1918-1930 Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Sydney Regional Environmental Plan No.19 - Rouse Hill Development Area Sydney Regional Environmental Plan No.20 - Hawkesbury-Nepean River (No.2 - 1997) Sydney Regional Environmental Plan No.9 -Extractive Industry (No.2) Blacktown Local Environmental Plan 1988 Architectural Property Services Pty Ltd v Rockdale City Council [1999] NSWLEC 83; Golden Quarries v Coffs Harbour City Council (1991) 72 LGERA 104; Inghams Enterprises Pty Ltd v Kira Holdings Pty Ltd & Anor (1996) 90 LGERA 68; International Study Programs Pty Ltd & Ors v Greater Lithgow City Council & Anor [2000[ NSWLEC 91; CASES CITED: Jarasius v Forestry Commission of NSW (1988) 71 LGRA 79 at 93; J Murphy & Sons Pty Ltd v Secretary of State for Environment & Anor [1973] 1 WLR 560; Nerasko Pty Ltd v Coffs Harbour City Council [No.2] (1990) 70 LGRA 50; Prineas v Forestry Commission of NSW & Ors (1983) 49 LGRA 402; Tiocliff Pty Ltd v Yarrowlumla Shire Council [1998] NSWLEC 13 DATES OF HEARING: 29/05/2000-31/05/2000, 1/6/2000-2/6/2000, 5/6/2000-9/6/2000, 07/07/2000 DATE OF JUDGMENT: 09/07/2000
(1991) 72 LGERA 104
(1996) 90 LGERA 68