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

KEY ISSUES: Appeal :- objector appeal against approval of Minister under Part 3A of the Environmental Planning and Assessment Act 1979 - sand quarry - conditions of approval

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Pt 3A

CASES CITED: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd [2008] NSWLEC 173 (16 May 2008)

APPLICANT Mr P Larkin (barrister) SOLICITORS Environmental Defenders' Office

FIRST RESPONDENT LEGAL REPRESENTATIVES: Ms S Duggan (barrister) SOLICITORS Department of Planning

SECOND RESPONDENT Mr J Webster SC SOLICITORS Sparke Helmore

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GERROA ENVIRONMENT PROTECTION SOCIETY INC V MINISTER FOR PLANNING and CLEARY BROS (BOMBO) PTY LTD

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:

2. Approval is granted to application 05/0099 for extraction and processing operations on land comprising Lot A DP 185785 and part of the land in Certificate of Title Vol 5841 Folio 139 subject to the conditions in Annexure A.

3. Exhibits may be returned. **********

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GERROA ENVIRONMENT PROTECTION SOCIETY INC V MINISTER FOR PLANNING and CLEARY BROS (BOMBO) PTY LTD

ANNEXURE A IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

GERROA ENVIRONMENT PROTECTION SOCIETY INC Applicant

Obligation to Minimise Harm to the Environment Terms of Approval Limits on Approval Demolition Surrender of Consents Operation of Plant and Equipment Section 94 Contributions

General Extraction and Processining Provisions Noise Air Quality Meteorological Monitoring Surface and Ground Water Landscape Management Aboriginal Heritage Traffic and Transport Visual Waste Management Emergency and Hazards Management Production Data

ENVIRONMENTAL MANAGEMENT, MONITORING, REPORTING & AUDITING

Environmental Management Plan Environmental Monitoring Program Incident Reporting Annual Reporting Independent Environmental Audit Community Consultative Committee Access to Information

APPENDIX 1: VEGETATION MANAGEMENT AREAS AND SITE PLAN APPENDIX 2: STATEMENT OF COMMITMENTS APPENDIX 3: COMPENSATORY PLANTING APPENDIX 4: VEGETATION CONSERVATION AREA APPENDIX 5: REHABILITATION OBJECTIVES APPENDIX 6: PLANT SPECIES APPENDIX 7: DECC LETTER APPENDIX 8: ARCHAEOLOGICAL AREAS APPENDIX 9: INDEPENDENT DISPUTE RESOLUTION PROCESS

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

1. The Proponent shall implement all practicable measures to prevent or minimise any harm to the environment that may result from the construction, operation, or rehabilitation of the project.

2. The Proponent shall carry out the project in accordance with the: (a) EA; (b) Statement of Commitments; and (c) conditions of this approval. Note: The layout of the project is shown in the figure in Appendix 1.

3. If there is any inconsistency between the EA, Statement of Commitments and conditions of this approval, the conditions shall prevail to the extent of the inconsistency.

4. The Proponent shall comply with any reasonable requirement/s of the Director-General arising from the Department's assessment of: (a) any reports, plans, programs or correspondence that are submitted in accordance with this approval; and (b) the implementation of any actions or measures contained in these reports, plans, programs or correspondence.

Limits on Approval 5. Extraction and processing operations may take place until 31 July 2023.

5A. Under this approval, the Proponent is required to rehabilitate the site to the satisfaction of the Director-General. Consequently this approval will continue to apply in all other respects other than the right to conduct extraction and processing operations until the site has been rehabilitated to a satisfactory standard. Inter alia, to avoid doubt, the site has not been rehabilitated to a satisfactory standard unless Conditions 16 and 17 of this approval have been complied with. 6. The Proponent shall not transport more than 80,000 tonnes of product from the site in a year. Note: This condition applies to the combined production of quarry products from the existing quarry and the quarry extension, and does not include the ancillary extractive material that would be imported onto the site and dispatched with the quarry's products.

7. Within 3 months of the date of this approval, the Proponent shall surrender all existing development consents associated with the Gerroa Sand Quarry, in accordance with clause 97 of the EP&A Regulation. Note: This approval will apply to all phases and components of the quarry from the date of this approval. Operation of Plant and Equipment

8. The Proponent shall ensure that all plant and equipment used at the site is: (a) maintained in a proper and efficient condition; and (b) operated in a proper and efficient condition.

9. The Proponent shall pay a contribution of: (a) 30 cents per tonne of material hauled from the site to Shoalhaven City Council; and (b) 20 cents per tonne of material hauled from the site to Kiama Council, for the maintenance/repair of public roads in accordance with Shoalhaven City Council's Section 94 Contributions Plan 1993 - Amendment No.71 Berry , to the satisfaction of the Director-General. Note: These contribution rates shall be paid and indexed in accordance with the applicable Contributions Plan. SCHEDULE 3 ENVIRONMENTAL PERFORMANCE

Within 3 months of the date of this approval, or as otherwise agreed by the Director-General, the Proponent shall. (a) engage an independent registered surveyor to survey the boundaries of the approved limit of extraction; (b) submit a survey plan of these boundaries to the Director-General; and (c) ensure that these boundaries are clearly marked at all times in a permanent manner that allows operating staff and inspecting officers to clearly identify those limits. Note: The limit of extraction is shown conceptually on the plan in Appendix 1 . NOISE

The Proponent shall ensure that the noise generated by the project does not exceed the noise impact assessment criteria in Table 1.

Location LAeq (15 min) dB(A) 670 Beach Road 41 11 Bangarrai Street 40 Seven Mile Beach Holiday Park 36 Coralea Property 43 Picnic Area 1 46 Picnic Area 2 43

Notes: · To determine compliance with these noise limits, noise from the project is to be measured at the most affected point within the residential boundary, or at the most affected point within 30 metres of the dwelling where the dwelling is more than 30 metres from the boundary. Where it can be demonstrated that direct measurement of noise from the project is impractical, the DECC may accept alternative means of determining compliance (see Chapter 11 of the NSW Industrial Noise Policy). The modification factors in Section 4 of the NSW Industrial Noise Policy shall also be applied to the measured noise level where applicable. · The noise limits apply under meteorological conditions of wind speed up to 3m/s at 10 metres above ground level. · The noise limits do not apply if the Proponent has an agreement with the relevant owner/s of these residences/land to generate higher noise levels, and the Proponent has advised the Department in writing of the terms of this agreement

The project shall only operate: (a) between 7.00am and 6.00pm Monday to Friday; (b) between 7.00am and 1.00pm on Saturdays; and (c) at no time on Sundays or Public Holidays.

The Proponent shall prepare and implement a Noise Monitoring Program for the project to the satisfaction of the Director-General. This program must: (a) be submitted to the Director-General within 3 months of the date of this approval; (b) be prepared in consultation with the DECC; and (c) include details of how the noise performance of the project would be monitored, and include a noise monitoring protocol for evaluating compliance with the relevant noise limits in this approval.

The Proponent shall ensure that dust generated by the project does not cause additional exceedances of the criteria listed in Table 2 at any residence on privately owned land, or on more than 25 percent of any privately owned land.

Pollutant Averaging period Maximum increase in deposited dust level Maximum total deposited dust level Deposited dust Annual 2 g/m2/month 4 g/m2/month

Table 2: Long Term Impact Assessment Criteria for Deposited Dust

Note: Deposited dust is assessed as insoluble solids as defined by Standards Australia, 1991, AS/NZS 3580.10.1-2003: Methods for Sampling and Analysis of Ambient Air - Determination of Particulates - Deposited Matter - Gravimetric Method.

The Proponent shall ensure any visible air pollution generated by the project is assessed regularly, and that quarrying operations are relocated, modified, and/or stopped as required to minimise air quality impacts on privately owned land.

The Proponent shall prepare and implement an Air Quality Monitoring Program for the project to the satisfaction of the Director-General. This program must: (a) be submitted to the Director-General within 3 months of the date of this approval; (b) be prepared in consultation with DECC; and (c) include details of how the air quality performance of the project would be monitored, and include a protocol for evaluating compliance with the relevant air quality criteria in this approval.

During the project, the Proponent shall maintain a suitable meteorological station on (or in close proximity to) the site to the satisfaction of the DECC and the Director-General. This station must satisfy the requirements in the Approved Methods for Sampling of Air Pollutants in New South Wales publication.

The Proponent shall not discharge any water from the quarry or its associated operations except for the purpose of restoring normal pond level after significant rainfall. Any such discharge shall be in accordance with an EPL.

Unless otherwise approved by the Director-General, the Applicant shall aim to meet the water quality objectives in Table 3 for water in the dredge pond and in ground water adjacent the dredge pond.

Pollutant Unit of Measure Water Quality Objective Turbidity NTU 5-20 pH pH 6- 8.5 Salinity µS/cm 6 (>80-90%) Total phosphorus µg/L <30 Total nitrogen µg/L <350 Chorophyll-a µg/L <5 Faecal coliforms Median No./100mL <1000 Enterococci Median No./100mL <230 Algae and blue-green algae No.cells/mL <15,000 Sodium mg/L <400 Potassium ion mg/L <50 Magnesium ion mg/L <50 Chloride ion mg/L <300 Sulphate ion mg/L <250 Bicarbonate ion mg/L <750 Soluble Iron ion mg/L <6 Ammonium ion mg/L <20

Notes: · The objectives for dissolved oxygen, turbidity and algae are relevant to surface water only; · The Department acknowledges that short term exceedances of these objectives may occur during natural events such as heavy rainfall or tidal saline water inflow.

The Proponent shall prepare and implement a Water Management Plan for the project to the satisfaction of the Director-General. This plan must: (a) be submitted to the Director-General within 3 months of the date of this approval; (b) be prepared in consultation with the DWE and DECC; and (c) include a: · Erosion and Sediment Control Plan; · Surface Water Monitoring Program; · Ground Water Monitoring Program; and · Acid Sulfate Soils Management Plan. (d) include a strategy for the placement of high hydraulic conductivity material progressively during the works. High conductivity material is to be placed at intervals along the length of the pond extension. This material is to be of a hydraulic conductivity, and placed at such intervals and in such places, that will maintain comparable typical groundwater flow through to the Swamp Sclerophyll Forest as existed prior to the proposed excavation. The existing and comparable typical groundwater flow is to be determined in accordance with the calculation based on the existing typical hydraulic gradient and the hydraulic conductivity of the in situ strata provided for in condition 14(c) below .

The Erosion and Sediment Control Plan shall: (a) be consistent with the requirements of Managing Urban Stormwater: Soils and Construction, Volume 1, 4th Edition, 2004 (Landcom); (b) identify activities that could cause soil erosion and generate sediment; (c) describe measures to minimise soil erosion and the potential for the transport of sediment to downstream waters; (d) describe the location, function, and capacity of erosion and sediment control structures; and (e) describe what measures would be implemented to maintain (and if necessary decommission) the structures over time.

The Surface Water Monitoring Program shall include: (a) detailed baseline data on surface water quality in the main channel in Foys Swamp; (b) surface water impact assessment criteria; (c) a program to monitor surface water quality; (d) a program to monitor bank and bed stability of the dredge pond; (e) a protocol for the investigation, notification and mitigation of identified exceedances of the surface water impact assessment criteria; and (f) a program to monitor the effectiveness of the Erosion and Sediment Control Plan.

The Ground Water Monitoring Program shall include: (a) a statistical analysis of baseline ground water level and water quality data; (b) ground water impact assessment criteria, including criteria for assessing any impacts on ground water dependent ecosystems and vegetation; (c) a program to monitor: · hydraulic conductivity - upon the completion of the landscaping of each 20 metre wide extraction zone, tests shall be conducted to ensure that the hydraulic conductivity following the placement of material is similar to the conditions prevailing prior to excavation commencing; · impacts on ground water dependent ecosystems and vegetation (from at least 6 boreholes at the edge of the dredge pond); and · water levels (at no less than monthly intervals and taken on the same day) in the dredge pond, the drain at the flood gates, monitoring bores WM1, WM1A, WM2A, WM3A, WM4, WM5, 1/Aug07, 2/Aug07, 3/Aug07, 4/Aug07, 5/Aug07 and 6/Aug07 (locations shown on Drawing 6198/208bh Revision A prepared by KF Williams & Associates, 15/2/08), and any additional bores installed at the edge of the dredge pond; · the in situ strata at the perimeter of the dredge pond for its current hydraulic conductivity; and · groundwater levels under the SSF.

(d) monthly review of the results of the ground water monitoring by the Proponent's Environmental Officer; (e) a protocol for the investigation, notification and mitigation of any identified exceedances of the ground water impact assessment criteria. The protocol shall include the following measures to be undertaken in the event that the water level in any bore lies outside the range of two standard deviations from the mean for more than 6 months and does not follow a trend that can be attributed to climatic effects, as evident in other monitoring bores, undertake the following actions: · sand extraction shall be halted immediately while further investigations and any necessary remedial action are undertaken; · additional water level measurements shall be taken in temporary bores in the vicinity of the affected bore to confirm the ground water levels in that locality; · a qualified hydrogeologist shall be engaged to assess the significance of the variance from expected ground water behaviour; · if the review of the hydrogeologist considers that action is necessary to maintain the pre-existing ground water regime in the vicinity of the SSF he/she shall be requested to recommend an appropriate remedial action plan. This plan may include adjustment to the placement strategy for panels of high hydraulic conductivity material required by Condition 11(d); and · the recommended remedial action plan shall be submitted for the Director-General's approval and subsequently implemented by the Proponent; (f) include measures to mitigate, remediate and/or compensate any identified ground water impacts.

The Acid Sulfate Soils Management Plan shall: (a) be prepared in accordance with the Acid Sulphate Soils Assessment and Management Guidelines; (b) describe the measures to manage acid sulfate soils; (c) include an acid sulfate soils sampling and monitoring program.

Within 3 months of the date of this approval, the Proponent shall: (a) enter into a Planning Agreement with the Minister under section 93F of the EP&A Act. This Agreement must be generally consistent with commitments in the terms of the offer made by the Proponent to the Minister on 1 May 2007, and must specifically provide for the: (i) implementation of the Compensatory Planting shown in the plan in Appendix 3; (ii) protection of the vegetation in the area shown in Appendix 4 ( Conservation Area) ; (iii) identification by survey plan of the Conservation Area shown in the plan titled Vegetation Conservation Area (shown conceptually in Appendix 4); (iv) implementation of the Landscape and Rehabilitation Management Plan for the site; and (v) insurance of the Conservation Area against the impact of fire or vandalism; (b) register the Planning Agreement on the title of the land in accordance with the Real Property Act 1900.

Landscaping and Rehabilitation 17. The Proponent shall: (a) progressively rehabilitate the site in a manner that is generally consistent with the rehabilitation objectives in Chapter 3.8 of the EA (see Appendix 5); (b) ensure that within 4 years of the date of this approval, the additional plantings in the Northern Corridor and Southern Rehabilitation Area are comprised of at least 60% of the plant species recorded for the representative plant communities in the quarry extension area, such as Bangalay Sand Forest and Littoral Rainforest; (c) implement the Compensatory Planting in a manner that is consistent with the Landscape and Rehabilitation Management Plan referred to in Condition 21, including the: · establishment, conservation and maintenance of approximately 23.99 hectares of native vegetation; · enhance 5.25 hectares of the vegetation in Areas 4 and 5; and · conservation and maintenance of approximately 46.25 hectares of the remnant vegetation on the site (shown conceptually in Appendix 3); and the best practice guidelines set out in:

• Bringing the bush back to Western Sydney: Best practice guidelines for bush regeneration on the Cumberland Plain Department of Infrastructure, Planning and Natural Resources (2003) ("DIPNR (2003)"); and
• Recovering bushland on the Cumberland Plains: Best practice guidelines for the management and restoration of bushland Department of Environment and Conservation (2005) ("DEC (2005))"; to the satisfaction of the Director-General.

18. Within 12 months of the date of this approval, the Proponent shall densely plant Banksia Integrifolia along the 5 metre setback zones to the Littoral Rainforest vegetation and these areas shall thereafter be planted with species as may be specified in the Landscape and Rehabilitation Management Plan.

19. The Proponent shall: (a) clearly identify the boundary of the extension area in consultation with a suitably qualified ecologist prior to the commencement of any construction works to ensure that an adequate buffer distance is maintained from the dredging activities/quarry operations to the Conservation Area and SSF; (b) ensure that all dredging activities and associated quarry operations remain within the defined boundary of the Project Area (shown on the plan in Appendix 1); (c) develop a monitoring program and document it in the EMP to demonstrate that the defined boundary of the quarry extension area is maintained and not compromised during operations; and (d) revegetate the buffer area with appropriate native species and be subject to the Landscape and Rehabilitation Management Plan for inclusion in the EMP for its long term restoration and management and be not less than 5 metres wide.

20. The Proponent shall: (a) commence the Compensatory Planting and the vegetation screen along the Crooked River Road frontage north of the east-west link (as shown conceptually in Appendix 3), within 12 months of the date of this approval or when sufficient propagation material has been collected ; and (b) not s ever the east-west link until it can be demonstrated to the satisfaction of the Director General that the established communities represented in the Northern Corridor comprise at least 60% of the native flora species as set out in Appendix 6 and the Northern Corridor is successful according to the criteria in Condition 25; to the satisfaction of the Director-General. In this Condition, " not sever " means that no works of clearing, tree removal or other habitat removal shall take place which will reduce or impede the function of the East-West Corridor to provide connectivity to the National Park from Zone 1.1 as measured by Condition 25(b).

20A Within the area marked "X" on Appendix 1, a person shall not clear any of the land of vegetation or trees without the consent of the Director-General.

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.

21A The Proponent shall engage a qualified ecologist, bush regeneration or providence nursery group who will develop a program consistent with the objectives and procedures set out in the draft Landscape and Rehabilitation Management Plan and this program will address the following issues: (a) soil testing; (b) on site collection of seed and other propagation material; (c) an assessment of the need to develop plants on the site; (d) a program of successional plantings and management that will achieve the agreed purposes of the planting; (e) targets for short term, medium term and long term planting and management; (f) monitoring requirements; (g) reporting frequency and methodology; (h) consultation with the relevant government agencies; (i) water quality monitoring; and (j) quantitative vegetation monitoring; unless otherwise incorporated in the draft Landscape and Rehabilitation Management Plan.

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.

Successful establishment of the Northern Corridor shall be measured by the following criteria: (a) presence of native flora species; (b) a majority of the flora species recorded from the removed forest occur in the area; (e.g. 60% of flora species recorded in removed forest are present); (c) species from all four layers have been planted and at least 50% of the projected cover has been achieved for each of the shrub and ground cover layers; (d) self-sustaining native plant populations (e.g regeneration of a second generation); (e) no dominance by single flora species (e.g Bracken); (f) weeds are not significantly impacting on the native vegetation; (g) weeds do not represent a majority of the flora species or a higher percentage cover than the native flora species; and (h) impacts such as grazing are excluded from the area.

Successful establishment of fauna habitat in the Northern Corridor would be measured by: (a) presence of species; (b) a majority of the resident species recorded from the removed forest occur in the area; (c) fauna populations are resident in the area; (d) pest animals are controlled and not impacting upon the fauna or its habitat; and (e) impacts such as grazing are excluded from the area.

Prior to the severance of the East-West Link the Proponent shall: (a) determine the presence of species in both the east-west link and northern corridor by conducting standard animal survey techniques at least twice in the first year (eg. Eliot trapping for small mammals, pitfall trapping for reptiles, observational surveys for frogs and birds, and spotlighting transects for arboreal animals); (b) determine whether a majority of animal species (particularly those determined to be likely to be impacted by fragmentation) utilising the corridor in the east-west link are present in the conservation area and the northern corridor and the re-created link at the northern boundary; and (c) conduct genetic analysis for a number of key species for whom genetic markers have already been developed (e.g. Brown Antechinus, Bush Rat and at least two skink species) to establish that genetic relatedness exists between individuals within the two corridors, the Conservation Area and National Park). If no genetic relatedness exists between individuals in the Conservation Area, northern corridor, east-west link and the National Park, then this demonstrates that neither the east-west link nor the northern corridor is functional and therefore the east-west link can be severed without creating additional fragmentation to animal populations.

If genetic relatedness exists between individuals in the northern corridor, Conservation Area and the National Park, but not in the east-west link, then this demonstrates that the east-west link is not functional, but the northern corridor is and therefore, the east-west link can be severed without creating additional fragmentation to animal populations.

If genetic relatedness exists between individuals in the Conservation Area, the east-west link and the National Park, but not the northern corridor, then this demonstrates that the northern corridor is not functional and the east-west link cannot be severed until there is compliance with Conditions 23 and 24.

The Long Term Management Strategy must be prepared in consultation with Shoalhaven Council, Kiama Council, DECC, DPI-Fisheries and the CCC, and must: (a) define the objectives and criteria for quarry closure and post-extraction management; (b) investigate options for the future use of the site; (c) describe the measures that would be implemented to minimise or manage the ongoing environmental effects of the development; and (d) describe how the performance of these measures would be monitored over time. Note: The Department accepts that the initial Long Term Management Strategy may not contain detailed information on post-extraction management.

Within 6 months of the date of this approval, the Proponent shall lodge a rehabilitation bond for the project with the Director-General. The sum of the bond shall be calculated at: (a) $2.50/m2 for the total area to be disturbed by the proposed dredge pond as shown in Appendix 1; and (b) $1.00/m2 for the total area of land to be rehabilitated consisting of Zones 2A.1, 2A.2, 2A.3, 2B.1, 2B.2, 2C.1, 2C.2, 2D and 2E of Appendix 3;

28A. The rehabilitation bond shall continue to be retained after completion of the Compensatory Planting to ensure that there shall be a continuation of the Planning Agreement; and

28B. The Director-General may at his or her discretion and on advice from an independent environmental auditor release or vary the rehabilitation bond where conditions permit. If the rehabilitation is not completed to the satisfaction of the Director General, the Director General will call in all or part of the rehabilitation bond, and arrange for the satisfactory completion of the relevant works.

28C The bond may be in the form of a Bank Guarantee or as directed by the Director-General.

29. The Proponent shall protect and conserve Area A, as described in the EA (as shown on the plan in Appendix 8, to the satisfaction of the Director-General.

30. The Proponent shall prepare and implement an Aboriginal Heritage Management Plan for the project to the satisfaction of the Director-General. This plan must: (a) be submitted to the Director-General within 3 months of the date of this approval and prior to disturbance of any identified Aboriginal object; (b) be prepared in consultation with the DECC and relevant Aboriginal communities; and (c) include a: · description of the measures that would be implemented to protect Area A and that part of Area B proposed to be conserved, as described in the EA (as shown on the plan in Appendix 8); · description of the measures that would be implemented for the mapping and salvage or relocation of the archaeological relics in the site including the shell midden deposit situated at the South Western corner of the Extraction Area (as shown on the plan in Appendix 8); · description of the measures that would be implemented if any new Aboriginal objects or relics are discovered during the project; and · protocol for the ongoing consultation and involvement of the Aboriginal communities in the conservation and management of Aboriginal cultural heritage on the site.

31. The Proponent shall ensure that all truck movements travelling to or originating from areas: (a) south of the site use the Princes Highway, via Beach Road (except as provided for by condition 32 below); and (b) north of the site use the Princes Highway, via Beach Road, Crooked River Road, Fern Street and Belinda Street.
32. The Proponent shall ensure that no trucks associated with the project use Gerroa Road, except where the destination lies along or adjacent to that road.

Within 3 months of the date of this approval, the Proponent shall upgrade the internal haul road and Beach Road intersection to a sealed Type BAL left turn and sealed Type BAR right turn configuration, in accordance with the RTA's Road Design Guide

The Proponent shall ensure that: (a) all loaded vehicles entering or leaving the site are covered; and (b) all loaded vehicles leaving the site are cleaned of materials that may fall on the road, before they leave the site.

The Proponent shall minimise the visual impacts of the project to the satisfaction of the Director-General.

The Proponent shall: (a) take all practicable measures to mitigate off-site lighting impacts from the project; and (b) ensure that all external lighting associated with the project complies with Australian Standard AS4282 (INT) 1995 - Control of Obtrusive Effects of Outdoor Lighting, to the satisfaction of the Director-General.

The Proponent shall not erect or display any advertising structure(s) or signs on the site without the written approval of the Director-General. Note: This does not include traffic management and safety or environmental signs.

The Proponent shall minimise the amount of waste generated by the project to the satisfaction of the Director-General.

The Proponent shall ensure that the storage, handling, and transport of dangerous goods are conducted in accordance with the relevant Australian Standards, particularly AS1940 and AS1596, and the Dangerous Goods Code.

The Proponent shall secure the project to ensure public safety to the satisfaction of the Director-General.

The Proponent shall: (a) ensure that the project is suitably equipped to respond to any fires on-site; and (b) assist the rural fire service and emergency services as much as possible if there is a fire on-site.

The Proponent shall: (a) provide annual production data to the DPI using the standard form for that purpose; and (b) include a copy of this data in the AEMR.

1. If the results of monitoring required in Schedule 3 identify that impacts generated by the project are greater than the relevant impact assessment criteria, then the Proponent shall notify the Director-General and the affected landowners and/or existing or future tenants (including tenants of quarry owned properties) accordingly, and provide quarterly monitoring results to each of these parties until the results show that the project is complying with the relevant criteria.

2. If a landowner of privately owned land considers that the operations of the quarry are exceeding the impact assessment criteria in Schedule 3, then he/she may ask the Proponent in writing for an independent review of the impacts of the project on his/her land. If the Director-General is satisfied that an independent review is warranted, the Proponent shall within 3 months of the Director-General advising that an independent review is warranted: (a) consult with the landowner to determine his/her concerns; (b) commission a suitably qualified, experienced and independent person, whose appointment has been approved by the Director-General, to conduct monitoring on the land, to determine whether the project is complying with the relevant criteria in Schedule 3, and identify the source(s) and scale of any impact on the land, and the project's contribution to this impact; and (c) give the Director-General and landowner a copy of the independent review.

3. If the independent review determines that the quarrying operations are complying with the relevant criteria in Schedule 3, then the Proponent may discontinue the independent review with the approval of the Director-General.

4. If the independent review determines that the quarrying operations are not complying with the relevant criteria in Schedule 3, and that the quarry is primarily responsible for this non-compliance, then the Proponent shall: (a) implement all reasonable and feasible measures, in consultation with the landowner, to ensure that the project complies with the relevant criteria; and (b) conduct further monitoring to determine whether these measures ensure compliance; or (c) secure a written agreement with the landowner to allow exceedances of the relevant criteria in Schedule 3, to the satisfaction of the Director-General. If the additional monitoring referred to above subsequently determines that the quarrying operations are complying with the relevant criteria in Schedule 3, then the Proponent may discontinue the independent review with the approval of the Director-General.

If the Proponent is unable to finalise an agreement with the landowner, then the Proponent or landowner may refer the matter to the Director-General for resolution.

If the matter cannot be resolved within 21 days, the Director-General shall refer the matter to an Independent Dispute Resolution Process (see Appendix 9). 5. If the landowner disputes the results of the independent review, either the Proponent or the landowner may refer the matter to the Director-General for resolution. If the matter cannot be resolved within 21 days, the Director-General shall refer the matter to an Independent Dispute Resolution Process (see Appendix 9). SCHEDULE 5 ENVIRONMENTAL MANAGEMENT, MONITORING, REPORTING & AUDITING

The Proponent shall prepare and implement an Environmental Management Plan for the project to the satisfaction of the Director-General. This plan must: (a) be submitted to the Director-General within 6 months of the date of this approval; (b) be prepared in consultation with the Relevant Agencies; (c) provide the strategic context for environmental management of the project; (d) identify the statutory requirements that apply to the project; (e) describe in general how the environmental performance of the project would be monitored and managed; (f) describe the procedures that would be implemented to: · keep the local community and Relevant Agencies informed about the construction, operation and environmental performance of the project; · receive, handle, respond to, and record complaints; · resolve any disputes that may arise during the life of the project; · respond to any non-compliance; · manage cumulative impacts; and · respond to emergencies; and (g) describe the role, responsibility, authority, and accountability of the key personnel involved in the environmental management of the project.

The Proponent shall prepare an Environmental Monitoring Program for the project to the satisfaction of the Director-General. This program must be submitted to the Director-General within 6 months of the date of this approval, and consolidate the various monitoring requirements in Schedule 3 of this approval into a single document.

2A. Within 3 months of the date of this approval, the Proponent shall nominate a suitably qualified and experienced Environmental Officer(s) to perform environmental management duties. The Environmental Officer(s) shall be: (a) responsible for reviewing the monitoring programs required under this consent; and (b) responsible for considering and advising on matters specified in the conditions of this consent, and all other licences and approvals related to the environmental performance and impacts of the development.

The Proponent shall notify the Director-General, and Relevant Agencies of the name and contact details of the Environmental Officer, and any changes to that appointment that may occur from time to time.

Note: the Environmental Officer(s) duties need not necessarily be limited to environmental management and may be an existing employee with appropriate qualifications.

Within 7 days of detecting an exceedance of the goals/limits/performance criteria in this approval or an incident causing (or threatening to cause) material harm to the environment, the Proponent shall report the exceedance/incident to the Department and any Relevant Agencies. This report must: (a) describe the date, time, and nature of the exceedance/incident; (b) identify the cause (or likely cause ) of the exceedance/incident; (c) describe what action has been taken to date; and (d) describe the proposed measures to address the exceedance/incident.

Within 12 months of the date of this approval, and annually thereafter, the Proponent shall submit an AEMR to the Director-General, Relevant Agencies and CCC.

This report must: (a) identify the standards and performance measures that apply to the project; (b) describe the works carried out in the last 12 months; (c) describe the works that will be carried out in the next 12 months; (d) include a summary of the complaints received during the past year, and compare this to the complaints received in previous years; (e) include a summary of the monitoring results for the project during the past year; (f) include an analysis of these monitoring results against the relevant: · impact assessment criteria/limits; · monitoring results from previous years; and · predictions in the EA; (g) include an evaluation of the effectiveness of the environmental protection requirements and procedures in the AEMR; (h) identify any trends in the monitoring results over the life of the project; (i) identify any non-compliance during the previous year; and (j) describe what actions were, or are being, taken to ensure compliance.

Within 12 months of the date of the commencement of the project, and every 3 years thereafter, unless the Director-General directs otherwise, the Proponent shall commission and pay the full cost of an Independent Environmental Audit of the project. This audit must: (a) be conducted by a suitably qualified, experienced, and independent person(s) whose appointment has been approved by the Director-General; (b) include consultation with the Relevant Agencies; (c) assess the environmental performance of the project, and its effects on the surrounding environment; (d) assess whether the project is complying with the relevant standards, performance measures and statutory requirements; (e) review the adequacy of any strategy/plan/program required under this approval; and, if necessary, (f) recommend measures or actions to improve the environmental performance of the project, and/or any strategy/plan/program required under this approval. Note: The person(s) conducting the audit must have expertise in flora and fauna assessment as well as quarry rehabilitation.

Within 1 month of completion of each Independent Environmental Audit, the Proponent shall submit a copy of the audit report to the Director-General, Relevant Agencies and CCC, with a response to any of the recommendations in the audit report.

Within 3 months of submitting a copy of the audit report to the Director-General, the Proponent shall review and if necessary revise: (a) each of the environmental management and monitoring strategies/plans/programs in Schedules 3 and 5; and (b) the sum of the Landscape and Rehabilitation Bond (see Schedule 3). This review must consider: · the effects of inflation; · any changes to the total area of disturbance; and · the performance of the rehabilitation against the completion criteria of the Landscape and Rehabilitation Management Plan, to the satisfaction of the Director-General

Within 3 months of the date of this approval, the Proponent shall establish a Community Consultative Committee (CCC) for the project. The CCC shall: (a) be comprised of: · 2 representatives from the Proponent, one of which will be the Environmental Officer nominated under Condition 2A of Schedule 5 ; · representatives of both Kiama Council and Shoalhaven Council (if available); · 1 representative of the Gerroa Environment Protection Society (if available); and · at least 2 representatives from the local community, whose appointment has been approved by the Director-General; (b) be chaired by an independent chairperson, whose appointment has been approved by the Director-General; (c) meet at least twice a year, including one meeting shortly after submission of the AEMR under Condition 4 of Schedule 5; (d) review the Proponent's performance with respect to environmental management and community relations; (e) undertake regular inspections of the quarry operations; (f) review community concerns or complaints about the quarry operations, and the Proponent's complaints handling procedures; and (g) provide advice to: · the Proponent on improved environmental management and community relations, including the provision of information to the community and the identification of community initiatives to which the Proponent could contribute; · the Department regarding the conditions of this approval; and · the general community on the performance of the quarry with respect to environmental management and community relations. Notes: · The CCC is an advisory committee. The Department and other Relevant Agencies are responsible for ensuring that the Proponent complies with this approval. · The membership of the CCC should be reviewed on a regular basis (every 3 years). · If possible, an alternate member should be appointed for each of the representatives from the local community.

At its own expense, the Proponent shall: (a) ensure that 2 of its representatives attend CCC meetings; (b) provide the CCC with regular information on the environmental performance of the project, including a copy of the AEMR; (c) provide meeting facilities for the CCC; (d) arrange site inspections for the CCC, if necessary; (e) respond to any advice or recommendations the CCC may have in relation to the environmental management or community relations; (f) take minutes of the CCC meetings; and (g) forward a copy of these minutes to the Director-General, and put a copy of these minutes on its website.

Within 1 month of the approval of any plan/strategy/program required under this approval (or any subsequent revision of these plans/strategies/programs), or the completion of the audits or AEMR required under this approval, the Proponent shall: (a) provide a copy of the relevant document/s to the Relevant Agencies and the CCC; and (b) ensure that a copy of the relevant document/s is made publicly available on its website and at the quarry.

During the project, the Proponent shall: (a) make a summary of monitoring results required under this approval publicly available on its website and at the quarry; and (b) update these results on a regular basis (at least every 3 months).

APPENDIX 1 VEGETATION MANAGEMENT AREAS AND SITE PLAN

See attached APPENDIX 2 STATEMENT OF COMMITMENTS

1. Undertake the extension of the Gerroa sand quarry in a manner consistent with the Environmental Assessment and Statement of Commitments;
2. Comply with obligations under any Act;
3. 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;
4. 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).
5. 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;
6. Maintain annual production within an upper limit of 80,000 tonnes per year;
7. Progressively rehabilitate all areas disturbed by the sand mining operations in accordance with the Environmental Assessment and the EMP;
8. Protect from disturbance and maintain existing native vegetation around the periphery of the sand quarry;
9. 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;
10. Protect from disturbance Area A (shown on the figure in Appendix 8), of significance for potential Aboriginal relics;
11. 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);
12. 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;
13. 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
14. Include a section on fish management in the dredge pond in the revised EMP for the site.
15. Forward annual production data to the Department of Primary Industries.
16. Prior to finalising the revised EMP, forward a draft to DECC for comment.
17. 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.
18. Include a requirement to monitor compliance with the approved boundary in the revised EMP.
19. Revegetate and maintain the buffer area in conjunction with adjoining vegetation, except where the buffer is used for access.
20. Update the groundwater monitoring program in the revised EMP.
21. Include a tree clearance protocol in the revised EMP incorporating pre-clearing inspection for koalas.
22. 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
23. Include a revegetation monitoring program in the revised EMP to include all areas being revegetated as part of the project.
24. Define the compensatory vegetation land by survey and include an appropriate plan in the EMP.
25. 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).
26. 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.
27. Submit updated site information to DECC's AHIMS register when archaeological salvage is complete.
28. 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.
29. Should any sand mining impacts occur within Area A, consult DECC and the Aboriginal community as soon as possible in developing an appropriate response.
30. Investigate and if practicable, install "clacker" reversing alarms on mobile plant within the sand quarry site.

See attached APPENDIX 4 VEGETATION CONSERVATION AREA

The objectives of site rehabilitation are as follows:

· after the conclusion of sand mining, leave the site free from all sand mining artefacts including machinery, structures, buildings, signage, products and roads, except as required for rural purposes;

· create safe and stable landforms with a natural appearance designed for low maintenance;

· establish indigenous vegetation on all land areas disturbed by the sand quarry to create wildlife habitat including wetland habitat within and around the shoreline of the dredge pond;

· nurture to maturity vegetation screens and compensatory planting established during the sand mining operation;

· control weed growth within the rehabilitation areas and compensatory planting areas;

· retain a minimum of access tracks for maintenance or as required for ongoing rural use of the property;

· progressively rehabilitate sections of the site when they are no longer required for operations to minimise the extent of work remaining when extraction ceases; and

· continue rehabilitation beyond closure of the sand mine until these objectives have been achieved.

APPENDIX 9 INDEPENDENT DISPUTE RESOLUTION PROCESS

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.