Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros

Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros - [2008] NSWLEC 254 - NSWLEC 2008 case summary — Zoe

[13]

1 HIS HONOUR: On 16 May 2008, I delivered judgment indicating that approval to the proposed extracting and processing operations ought to be granted, however, the conditions of approval needed to be revised to take account of the findings in the judgment: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173. Directions were made for revising the conditions. 2 Although agreement was reached between the parties on a number of matters, it was necessary to hold a hearing on the disputed conditions. This hearing occurred first on 13 August 2008 with a further hearing held on 25 August 2008. I gave rulings ex tempore on each dispute condition on each occasion. 3 These rulings necessitated further revision of the conditions of the Landscape and Rehabilitation Management Plan. This further revision of both documents has now been completed. The final documents, being the consolidated conditions of approval dated 25 August 2008 and the Landscape and Rehabilitation Management Plan dated 20 August 2008 prepared by Kevin Mills & Associates, have been accepted by all parties as being in accordance with my judgment on 16 May 2008 and subsequent rulings of 13 and 25 August 2008. 4 I provided a draft of the proposed orders to the parties for correction of facts or other comment. Both Cleary Bros and the Minister for Planning submitted that the proposed first order, namely that the appeal is upheld, may have the potential to convey an incorrect perception of the decision of the Court and they suggested instead ordering that the appeal is dismissed. Cleary Bros also, correctly, pointed out the typographical error in the proposed second order which referred to "development consent" instead of "approval" which is the correct term for authorisations under Part 3A of the Environmental Planning and Assessment Act 1979. Otherwise, the draft orders were accepted. GEPS did not object to the draft orders. 5 In my opinion, it is preferable to refer to the appeal as being upheld than dismissed. It is true that the appeal is a third party, objector appeal against the decision of the Minister for Planning to approve the project and that GEPS's primary case was that the Court should refuse approval but that the Court determined instead that approval should be granted. However, by the conclusion of the hearing, the project had been modified by Cleary Bros in material respects from that which was approved by the Minister and it would be further modified by the conditions of approval to be imposed by the Court. 6 The project to be approved by the Court on the conditions proposed by the Court, therefore, will be different in material aspects from the project approved by the Minister on the Minister's conditions. In order to approve this different project, it is necessary for the appeal to be upheld. A dismissal of the appeal would have the effect of reinstating the Minister's decision - a result which would not accord with the Court's decision. Accordingly, the appropriate order is that the appeal is upheld. Otherwise, the proposed orders are agreed with the correction in order 2 to refer to approval. 7 I note in Condition 21(b) in Schedule 3 of the conditions there is a reference to "the draft Landscape Rehabilitation Management Plan, dated 20 August 2008 prepared by Kevin Mills & Associates and accepted by the Land and Environment Court as appropriate". For the avoidance of doubt in the future, I have endorsed on copies of the Landscape Rehabilitation Management Plan dated 20 August 2008 the words "Plan accepted by the Court as appropriate" and signed and dated the Plan. Orders 8 Accordingly, the Court orders:

[25]

AEMR Annual Environmental Management Report CCC Community Consultative Committee Compensatory Planting The Compensatory Planting marked 2A.1, 2A.2, 2A.3, 2B.1, 2B.2, 2C.1, 2C.2, 2D, 2E, 5C.1 on the figure in Appendix 3 Conservation Area The Vegetation Conservation Area shown in the figure in Appendix 4 DECC Department of Environment and Climate Change Department Department of Planning Director-General Director-General of the Department of Planning, or delegate DPI Department of Primary Industries DWE Department of Water and Energy EA Environmental Assessment for the project titled Gerroa Sand Quarry Proposed Extension Environmental Assessment Volumes 1 and 2, dated October 2006, prepared by Perram & Partners East-West Link Area shown cross-hatched on the figure in Appendix 3 EMP Environmental Management Plan EP&A Act Environmental Planning and Assessment Act 1979 EP&A Regulation Environmental Planning and Assessment Regulation 2000 EPL Environment Protection Licence issued under the Protection of the Environment Operations Act 1997 Extraction Area The extraction area as shown in the figure in Appendix 1 Land Land means the whole of a lot, or contiguous lots owned by the same landowner, in a current plan registered at the Land Titles Office at the date of this approval Landscape and Rehabilitation Management Plan The Plan approved by the Director-General under condition 21 Minister Minister for Planning, or delegate National Park Seven Mile Beach National Park Northern Corridor Area shown stippled on the figure in Appendix 3 Privately owned land Land not owned by a public agency or the Proponent or its related companies Project The extension and continued operation of the Gerroa Sand Quarry as described in the EA Project Area As defined in Vegetation Management Area and Site Plan shown in the figure in Appendix 1 Proponent Cleary Bros (Bombo) Pty Ltd, or its successors Relevant Agencies DECC, Shoalhaven Council and Kiama Council RTA Roads and Traffic Authority Site Land to which the project application applies SSF Swamp Sclerophyll Forest vegetation Statement of Commitments The commitments in Appendix 2 Southern Rehabilitation Area Zones 1.2, 1.3 and 2A.2 on the figure in Appendix 3

[64]

21 The Proponent shall prepare and implement a Landscape and Rehabilitation Management Plan for the project to the satisfaction of the Director-General. This plan must: (a) be submitted to the Director-General for approval within 3 months of the date of this approval; (b) be generally in accordance with the draft Landscape and Rehabilitation Management Plan, dated 20 August 2008 prepared by Kevin Mills & Associates and accepted by the Land and Environment Court as appropriate; (c) be prepared in consultation with the DECC by suitably qualified expert/s approved by the Director-General;; (d) clearly identify the biological purpose of the linkage and describe how its design, dimensions and management will achieve this purpose; (e) collect baseline data for the Project Area including flora species, fauna species and ecological function parameters; (f) include a figure showing the location, extent and size of areas to be planted/regenerated for each community to be impacted; (g) identify strategies to use the natural resources of the impacted areas to their full potential, including: · all plant material to be used as a primary source for restoration and rehabilitation should be collected and propagated from relevant communities prior to clearing; · all areas proposed for replanting should be assessed initially for their regeneration potential appropriate restoration strategies should follow best practice guidelines as described in DIPNR (2003) and DEC (2005); (h) describe in general the short, medium and long-term measures that would be implemented to: · rehabilitate the site; · implement the Compensatory Planting shown in Appendix 3; · manage the remnant vegetation and habitat on the site, including the areas of Bangalay Sand Forest to be retained (shown conceptually in Appendix 3); · landscape the site (including the bunds) to mitigate visual impacts of the project; and · Upgrade and protect the remaining area of Littoral Rainforest on the eastern side of the pond extension (i) describe in detail the measures that would be implemented over the first 5 years and every subsequent 5 year period, to rehabilitate and manage the landscape and vegetation on the site, including · setting clear targets to the satisfaction of the Director-General to determine the level of success and make timely changes to management strategies, as necessary; · monitoring each vegetation type separately; (j) set completion criteria for the rehabilitation of the site (i.e. when plantings are self-sustaining); (k) describe how the performance of these measures would be monitored over time; and (l) include a Long Term Management Plan.

[66]

The Landscape and Rehabilitation Management Plan must include: (a) the objectives for the rehabilitation of the site and implementation of the Compensatory Planting and the vegetation screen along the Crooked River Road frontage north of the east-west link; (b) a description of how the rehabilitation of the site and implementation of the Compensatory Planting and how the vegetation screen along the Crooked River Road frontage would be integrated with the surrounding vegetation to provide a comprehensive strategic framework for the restoration and enhancement of the landscape over time; (c) a description of the short, medium, and long-term measures that would be implemented to: · rehabilitate the site; · implement the Compensatory Planting; · manage the remnant vegetation and habitat on the site; and · landscape the site (including the bunds) to mitigate visual impacts of the project; (d) a detailed description of the performance and completion criteria for the rehabilitation of the site and implementation of the Compensatory Planting and the vegetation screen along the Crooked River Road frontage; (e) a detailed description of what measures would be implemented over the next 5 years to rehabilitate the site, and implement both the Compensatory Planting and the vegetation screen along the Crooked River Road frontage, including the procedures for: · undertaking pre-clearance surveys; · conserving and reusing topsoil; · collecting and propagating seed for rehabilitation works; · salvaging and reusing material from the site for habitat enhancement, particularly tree hollows; · controlling weeds and feral pests; · controlling access; · bushfire management; · managing any potential conflicts between the proposed rehabilitation of the site and implementation of the Compensatory Planting and any Aboriginal cultural heritage values in those areas; · progressively rehabilitate the areas disturbed by sand extraction; · implementing revegetation and regeneration within the disturbed and compensatory planting areas, including the establishment of canopy, sub-canopy (if relevant), understorey and ground cover vegetation; · reducing the visual impacts of the project; and · protecting areas outside the disturbance areas; (i) a detailed program to monitor the performance of the rehabilitation of the site and implementation of the Compensatory Planting and the vegetation screen along the Crooked River Road frontage against the relevant objectives and performance and completion criteria (see above); (j) a description of the potential risks to successful rehabilitation and/or revegetation, and a description of the contingency measures that would be implemented to mitigate these risks; and (k) details of who is responsible for monitoring, reviewing, and implementing the plan.

[113]

Undertake the extension of the Gerroa sand quarry in a manner consistent with the Environmental Assessment and Statement of Commitments;
Comply with obligations under any Act;
Update the Environmental Management Plan (EMP) for the site to include all relevant matters contained in the Environmental Assessment and any requirements emanating from the Land and Environment Court for the project;
Operate the sand quarry within the requirements of the EMP as updated in 3) above (Note: the existing EMP embraces the requirements of the existing development consent with regard to such matters as environmental management, monitoring, auditing, reporting and community consultation. These requirements will be retained except where superseded in the approval for the current application).
Survey and mark at regular intervals the approved boundary of the proposed extension and ensure that all activities associated with sand extraction other than rehabilitation or approved mitigation works remain within the marked area;
Maintain annual production within an upper limit of 80,000 tonnes per year;
Progressively rehabilitate all areas disturbed by the sand mining operations in accordance with the Environmental Assessment and the EMP;
Protect from disturbance and maintain existing native vegetation around the periphery of the sand quarry;
Undertake compensatory planting in the locations identified in the Environmental Assessment and nurture the vegetation and created habitat to maturity in accordance with the Landscape and Rehabilitation Management Plan, to be incorporated in the EMP;
Protect from disturbance Area A (shown on the figure in Appendix 8), of significance for potential Aboriginal relics;
Arrange for targeted salvage excavations for Aboriginal artefacts to take place as recommended by Navin Officer and to include the shell midden deposit situated at the South Western corner of the extraction area prior to mining occurring in the nominated locations (shown on the figure in Appendix 8);
Prior to extending workings into any part of the extension, ensure that a screen of vegetation, with or without bunding, effectively prevents viewing of the land to be disturbed from any publicly accessible locations;
Ensure that the requirements of the acid sulphate soils management plan are incorporated in the EMP and implemented where indicated to prevent degeneration of water quality in the dredge pond and in groundwater
Include a section on fish management in the dredge pond in the revised EMP for the site.
Forward annual production data to the Department of Primary Industries.
Prior to finalising the revised EMP, forward a draft to DECC for comment.
a. In surveying the boundary of the extraction area (see 5 above) include a minimum of 5 metres buffer to protect vegetation. b. The external areas of the vegetation shall be fenced so as to exclude access by any farm animals to the satisfaction of the Director-General.
Include a requirement to monitor compliance with the approved boundary in the revised EMP.
Revegetate and maintain the buffer area in conjunction with adjoining vegetation, except where the buffer is used for access.
Update the groundwater monitoring program in the revised EMP.
Include a tree clearance protocol in the revised EMP incorporating pre-clearing inspection for koalas.
Incorporate in the revised EMP a standard of revegetation to be achieved to the north and south of the extraction area before the existing east-west link can be severed. Do not completely remove the existing link until a qualified ecologist has confirmed that the required standard of revegetation has been achieved including the establishment of 60% of the plants species representative of the plant communities in the quarry area and in accordance with Appendix 6
Include a revegetation monitoring program in the revised EMP to include all areas being revegetated as part of the project.
Define the compensatory vegetation land by survey and include an appropriate plan in the EMP.
Include a detailed site rehabilitation program in the EMP addressing the matters listed in item 5a) of the submission from DECC dated 22 December 2006 (and shown in Appendix 8).
Maintain ongoing consultation with the Aboriginal community including notification of approvals and requirements that relate to Aboriginal heritage with an invitation to contribute to any heritage management activities.
Submit updated site information to DECC's AHIMS register when archaeological salvage is complete.
Include in the revised EMP, reference to protection of Aboriginal heritage items located in Area A as part of management of that land and consult the Aboriginal community in developing and implementing the management protocols.
Should any sand mining impacts occur within Area A, consult DECC and the Aboriginal community as soon as possible in developing an appropriate response.
Investigate and if practicable, install "clacker" reversing alarms on mobile plant within the sand quarry site.

At a glance

Court

Decision date

Before

Source

Judgment (125 paragraphs)

Parties

Cases Cited (1)

Cited By (5)