International Study Programs Pty Ltd & Ors v Greater Lithgow City Council & Anor

10465/98 APPLICANT Mr P W Larkin (Barrister) with Ms L Byrne (Barrister) SOLICITORS P T Fowler & Sons FIRST RESPONDENT Mr D Miller (Barrister) SOLICITORS Pike Pike & Fenwick SECOND RESPONDENT Mr W R Davison SC SOLICITORS Abbot Tout

10961/98 APPLICANT Mr W R Davison SC SOLICITORS Abbott Tout FIRST RESPONDENT LEGAL REPRESENTATIVES: Mr D Miller (Barrister) SOLICITORS Pike Pike & Fenwick SECOND RESPONDENT Mr P W Larkin (Barrister) with Ms L Byrne (Barrister) SOLICITORS P T Fowler & Sons

40183/98 APPLICANT Mr P W Larkin (Barrister) with Ms L Byrne (Barrister) SOLICITORS P T Fowler & Sons FIRST RESPONDENT Mr D Miller (Barrister) SOLICITORS Pike Pike & Fenwick SECOND RESPONDENT Mr W R Davison SC

JUDGMENT: IN THE LAND AND Matter Nos: 10465,10961 ENVIRONMENT COURT and 40183 of 1998 OF NEW SOUTH WALES Coram: Sheahan J 11 May 2000

Matter 10465 of 1998 INTERNATIONAL STUDY PROGRAMS PTY LTD & ORS Applicants v GREATER LITHGOW CITY COUNCIL First Respondent RYDAL MANAGEMENT PTY LTD Second Respondent

Matter 10961 of 1998 RYDAL MANAGEMENT PTY LTD Applicant v COUNCIL OF THE CITY OF LITHGOW First Respondent INTERNATIONAL STUDY PROGRAMS PTY LTD & ORS Second Respondents

Matter 40183 of 1998 RYDAL & SODWALLS HERITAGE ASSOCIATION INCORPORATED Applicant v LITHGOW CITY COUNCIL First Respondent RYDAL MANAGEMENT PTY LTD Second Respondent JUDGMENT

These three matters concern a proposal by Rydal Management Pty Ltd (" Rydal ") to carry out a " designated development ", namely a quarry, within the area of " high central tablelands " governed by (Greater) Lithgow City Council (" Council ").

The relevant development application (" DA "), lodged by Rydal, proposed a quarry from which 7.7 million tonnes of hard rock aggregate material will be extracted over approximately a 10 year period, and the associated documents refer also to the construction of many ancillary buildings and facilities, both on and off the quarry site, as part of the overall quarry project.

Council granted development consent (" DC ") in June 1998 on conditions. That DC really dealt only with proposed works on the actual portion of land on which quarrying is to take place. Significant other components of the project are a railway siding with a loading facility, and a conveyor linking that facility to the quarry processing area.

One of the Class 1 proceedings (" 10465 ") and the Class 4 proceeding (" 40183 ") were commenced by a group of objectors on 10 July and 24 September 1998 respectively, and both were adjourned part-heard on 17 December 1998. The second Class 1 proceeding (" 10961 ") was commenced by Rydal only seven days later.

10465 is the objectors' merits challenge to the DC, and it is brought under s 98 of the unamended Environmental Planning & Assessment Act 1979 (" EP&A Act "). A question of law raised at an early stage queried the adequacy of the environmental impact statement (" EIS ") which accompanied the DA pursuant to s 77(3)(d) of the unamended EP&A Act.

40183 was commenced as a " square-on attack " by the objectors on the adequacy of that EIS. Foreshadowed amendments to the Class 4 application, and foreshadowed attempts to join BLK Consulting Pty Ltd (" BLK ") as a party, did not proceed.

It is not clear whether all the individual applicants in 10465 are members of the Association which is the applicant in 40183, but the Association became an applicant in 10465 on 27 August 1999. The solicitor for the objectors and the Association is herself an applicant in 10465.

10961 is an appeal by Rydal, under s 97 of the EP&A Act, against Council's imposition of certain conditions on the DC. The court documents do not clearly indicate which particular conditions are the subject of Rydal's appeal, but some tendered documents do, and there are substantial differences between the conditions attached to the consent document and those which finally emerged as agreed draft conditions ( Exhibit C9 ) in these proceedings.

There remained many issues, regarding these conditions, as between the objectors on the one hand, and Rydal and Council, together, on the other.

The hearing, which commenced on 15 November 1999 and is the subject of this judgment, involved the complete hearing, on the merits, of the two Class 1 proceedings.

By consent, the part-heard Class 4 proceedings were listed for mention only, and stood over until the date of delivery of this judgment.

By consent, I also vacated my direction of 9 July 1999 that the legal issues raised by the preliminary point of law in 10465 should be dealt with in conjunction with the hearing of 40183, which involved essentially the same issues, prior to any merits hearing.

The disposition first of all the merits issues, and those regarding what conditions to attach to any consent, was always the preferred position of both Council and Rydal.

In essence, the objectors decided not to proceed with their challenge to the EIS, at least at this stage. Counsel appearing for them (Mr Larkin) reserved his rights in that regard, and their position is described in a communication from their solicitor to the solicitors for Council, dated 10 November 1999 ( Exhibit C3 ), as follows:

… despite the firmly held belief that the EIS is deficient, the Applicants do not propose to raise a contention in these proceedings [10465] to the effect that the EIS is so legally deficient so [sic] as to deprive the Court of jurisdiction to grant consent.

The court had the benefit of a comprehensive view of the site and its environs.

The subject site is an area (variously described as 6.5 to 8ha) of steep land (having average slope 20%), located on a north/south ridge line, facing generally south, and forming part of portion 126 (lot 126 DP 757076) Parish of Thornshope, County of Roxburgh.

Portion 126 is a 130ha holding of Crown " special lease in perpetuity " (1949/10 Bathurst), held by one Les Stack, who has withdrawn an application to convert it to freehold.

Portion 126 formed part of the Turon Gold Field (proclaimed 1896) and was reserved 29 May 1981 for Future Public Requirements ( Exhibit A2 , fol 1 ). It is described in the DA as being " off Rydal Road, Rydal ", but is better described as being 11-12 km east of Lithgow, adjacent to the main Western Railway line, and approximately 2.5km south-west of Rydal township/village.

Portion 126 is south of the Great Western Highway, which follows the Great Dividing Range in that general area. Generally north-east of portion 126, between it and the Range, is Lake Lyell. North-west of the site, between it and the highway, is Mount Lambie (elevation 4230 feet).

The subject site is bounded to its east and west by two unnamed watercourses which form tributaries to Solitary Creek (sometimes referred to as Solitaire Creek), which in turn joins the Fish River 3km west of Tarana, and it " occupies one of the south-eastern spurs [or footslopes] of Mt Lambie, much of which is clothed by natural vegetation " ( Exhibit A14 ).

The area is said by some to have high conservation values ( Exhibit C2 , fol 60), but portion 126 is rugged terrain, heavily vegetated by woodlands and open forest. Its primary current use is grazing - it is unsuitable for agriculture due to its steepness, low fertility, high (?) erosion potential, and outcrops of rock, and unsuitable for forestry due again to steepness and rocky outcropping, but also its modest drainage. The predominant local land use is rural - timbered lands, and some improved pasture, surround the area. (See aerial photograph - Exhibit R9 ).

Portion 126 is a substantial, but irregularly shaped lot, joined generally in its south-eastern corner by portion 62, a Flora and Fauna Reserve (97404) since 24 August 1984, and by a railway reserve (see Exhibit A2 , fol 40). It was assessed for Crown Lands purposes as suitable for nature conservation purposes, for bushland recreation uses, and, subject to environmental considerations, for mining. There is some history of quarrying activity on portion 126 and nearby.

The Parish Map ( Exhibit C5 ) shows the main railway line to the east and south of the site. Sodwalls and its railway station are generally south. An old station known as Algararra is to the south-east of portions 126 and 62. Easements for the Fish River water supply are shown in a significant number of locations on the Parish Map, generally south of the site, including in the vicinity of the railway line.

Agents of Rydal prepared an Environmental Issues Paper (" EIP ") early in 1997 (contained in Exhibit A1 volume 2) and commenced discussions with the Council and other relevant authorities. They obtained from the Department of Land & Water Conservation (" DLWC "), late in 1997, both its consent, as owner, to the submission of the DA ( Exhibit C1 p2), and its in-principle approval, subject to DC being granted, to the granting of a licence to allow the establishment of the quarry (see Exhibit A1 Volume 2).

The DA (No. 3/98 - Exhibit C1 folios 1-2) was lodged on 7 January 1998. The description of the development in the application form was " establishment and operation of a hard rock quarry at Rydal near Lithgow ". The " estimated value of the building or work" was $250,000, and in the section of the DA document entitled " Environmental Effect " all questions were answered " SEE ATTACHED EIS ". The two-volume EIS dated 17 December 1997 is in evidence as Exhibit A1 . It was prepared by AGC Woodward Clyde Pty Ltd (" W/Clyde "), on behalf of BLK.

In broad terms the proposal is to extract the quarry material from the subject site by working " up hill ", in four stages, working generally from east to west, between the contour of Solitary Creek (RL 900/910) and a contour close to the top of the ridge (RL 990/1000), rehabilitating the site progressively over the life of the quarry operation.

The quarry is expected to produce a large quantity of high quality hard rock aggregate product, suitable for a range of construction material uses, including concrete production, road base and sub-base material, and road-sealing aggregate.

90% of the material is to be shipped by rail to the Sydney metropolitan market. A rail siding, to be fed by conveyor, is to be constructed adjacent to the quarry on the old formation of the main western railway line, and the proponent is negotiating with the State Rail Authority to develop a stockpile facility on railway land at St Mary's, alongside an old line which serviced the large Commonwealth landholdings in that area.

The remaining 10% will be exported from the site by roadtrucks using an " exclusive " route (see Exhibit C9 - proposed condition 26). They will travel about 3km to reach the currently very narrow and rough Bonaventure Road, and then use it for some 4km to reach the Great Western Highway, approximately 20km west of Lithgow. Some objectors expressed concern about the safety of the Bonaventure/Highway intersection. (It will be upgraded at Rydal's expense pursuant to proposed condition 23).

The EIS (and its later supplements) came to the conclusion that there was " potential for minimal adverse impacts " which " could be ameliorated by a number of safeguard measures " set out in the EIS, about which all authorities consulted had " independently concluded " would result in " no unacceptable environmental consequences " arising from the development (see Exhibit R2 p 3-1). The EIS argues, on the other hand, that the proposal will bring positive socio-economic benefits.

The DA and EIS were notified to neighbours and statutory authorities in mid January 1998 ( Exhibit C1 , folios 10-15) and the proposal was advertised ( Exhibit C1, folios 16-17). Objections were received and a community meeting organised for 12 February 1998. Council resolved then to extend the notification period to 16 March 1998, and further objections were received.

W/Clyde responded on 17 March 1998 to the regulators' comments ( Exhibit C1 , fol 197ff) and Council officers prepared a report recommending the grant of a deferred commencement consent ( Exhibit C1 , fol 223ff). On 6 April 1998 Council resolved to defer its decision and further information was then provided ( Exhibit C1 , fol.236-271 and 282ff). The additional information was notified to residents and exhibited 11-25 May 1998, with a further community meeting held on 14 May 1998. Further objections were received ( Exhibit C1 , fol 289ff).

A report to Council's meeting on 9 June 1998 recommended approval ( Exhibit C1 , fol 344ff), and Council approved the proposal on conditions amended in some respects from those which had been proposed ( Exhibit C1 , fol 366ff).

Two documents of consent were issued by Council, but the effective one, according to the agreement among the parties, is that which issued on 24 June 1998 ( Exhibit C1 , pp 391ff). (The earlier advising dated 12 June 1998 was replaced as a result of what was called a typographical error, but was in fact an error, pointed out by objectors, in the non-incorporation of an amendment, made by Council to one of the proposed conditions). The consent was advertised in the Lithgow Mercury of 2 July 1998 ( Exhibit C1 , fol 401). The advising of 24 June 1998 referred to DC for " the establishment of a hard rock quarry and associated facilities on Portion 126 ", and included 37 conditions.

Objectors continued to approach the Council and then commenced their proceedings ( Exhibit C2 , fol 7). Rydal then purported to supplement its EIS ( Exhibit R1 ), but did not make a fresh development application. Council notified and advertised exhibition of the new material provided, and Rydal's own appeal against conditions ( Exhibit C4 ).

Further objections were attracted (see Exhibit C2 fol 28-134), including submissions from new objectors, such as the Total Environment Centre (fol 43-45). The Rydal & Sodwalls Heritage Association became actively involved, and made a comprehensive submission (fol 46-122). Council was not swayed by any of these submissions.

After the DC, Rydal objected to 14 of Council's conditions ( Exhibit C2 , fol 10-14), and Council agreed to some minor rewording etc. of some, but held its position in regard to 7 of them.

During the hearing of these proceedings, Council and Rydal agreed upon conditions of consent ( Exhibit C9 ), virtually "settling" 10961 .

The objectors have maintained their stand of total opposition to the proposal and fulsome criticism of the EIS. They contend that the environmental impacts of a quarry can be properly identified only by a quarry plan, and that there is insufficient information before the court in this case to reveal such a plan, a fundamental shortcoming which cannot be dealt with by even a deferred commencement consent.

The alleged deficiencies of the EIS, as put summarily by Mr Larkin at the earlier hearing, involved the following issues:

· failure to define the development properly. · failure to describe properly 10 environmental aspects likely to be affected. · failure to analyse 16 likely impacts. · failure to adequately describe proposals which might mitigate 5 particular elements of environmental impact.

Clause 51 of the Environmental Planning & Assessment Regulation 1994 sets out the required contents of an Environmental Impact Statement. It adverts to any specific guidelines which may affect particular varieties of development and provides that if no such guidelines are in force the Statement must contain the matters set out in Schedule 2 to the Regulation, the details of which need not be set out in this judgment.

In September 1996 the Department of Urban Affairs & Planning published an " EIS Guideline " for " Extractive Industries - Quarries " ( Exhibit A45 ).

Mr Larkin contends that it is impossible to seek and obtain approval simply for a concept , and he relies on the Guidelines as indicating the level of detail and comprehensiveness required in the information submitted when seeking such approval, whether it be submitted formally as an EIS, or as a Statement of Environmental Effects, or as evidence before the court.

Suffice to say that it has been the consistent position of the objectors that the EIS material, even as now comprised by exhibits created for the hearing of this case, does not comply with the requirements of Schedule 2 or the Guidelines.

In determining the matters on their merits the court is asked by the objectors to observe that it must have before it sufficient information of the type that is specified in the Regulation and the Schedule in order to make its decision. In general terms, there must be a full description of the development or activity, and a general description of the environment likely to be affected, together with a detailed description of those aspects of the environment likely to be " significantly affected ".

The EIS, or the evidence before the court, must include the reasons which would justify carrying out the development or activity in the manner proposed, " having regard to biophysical, economic and social considerations and the principles of an ecologically sustainable development ". The Schedule indicates that among the matters relevant in these considerations are soil contamination, flora and fauna, air, noise or water pollution, impacts on health of people in the neighbourhood, any hazards arising, impact on traffic, effect on local climate, social and economic impact, visual impact on the scenic quality of land in the neighbourhood, soil erosion and silting of rivers and lakes, cultural and heritage significance of the land affected.

The many letters and position statements of objectors to the proposal are contained in Exhibits C1 and C2 . I have closely examined all that material and wish to comment at this stage on two particular matters, (apart from the submissions of nearby residents to which I shall shortly return): 1. The DLWC, which had notified its approval-in-principle of the project in late 1997, expressed serious reservations about the DA on 23 February 1998 ( Exhibit C1 , fol 86-94). It claimed that topography would render some of the proposed safeguards not feasible, and that there was " potential for major adverse impacts " and " serious irreversible environmental damage ".

This apparent reversal of position was explained to the court by the fact that the Council received that submission from the Catchment Manager based in Bathurst, rather than from the Regional Office of DLWC in Orange, with which Rydal had been dealing.

Nonetheless the issues raised by DLWC Bathurst were addressed by Rydal in material submitted up to and including the W/Clyde submission dated 8 November 1999 ( Exhibit R2 ).

2. AUS 10 Rhyolite Pty Ltd (" Rhyolite ") lodged an objection on 24 February 1998 ( Exhibit C1 , fol 97ff), stated to be based not on the competition represented to its operations by the Rydal proposal, but on the alleged duty of Council to subject the Rydal proposal to the same " full scrutiny " as Council imposed upon Rhyolite's Hartley proposal.

The Rhyolite EIS ( Exhibit R20 ) was relied upon by Mr Larkin as a model for what should have been insisted upon in this case, and for what should be before the court as consent authority before a quarry is approved, and I have examined it closely for that purpose. 48. The " prayer " of the petitions submitted in opposition to this proposal speaks of damage to the natural environment, destruction of a scenic area, pollution of waterways and the air, vibration and noise pollution, and endangering the lives of citizens by use of road transportation. That prayer represents a fairly concise summary of what the various objectors have claimed about the proposal, noting also that vibration is alleged to threaten damage to heritage items such as railway viaducts, and to infrastructure such as the Fish River Water Supply system.

49. During its view, the court visited various vantage points nominated by the objectors. Thereafter, several objectors, whose statements had been tendered ( Exhibits A18-A31 ), gave oral evidence and submitted themselves for cross-examination.

50. The court notes not only the rich historical significance of the district and some of its features, but the very deep knowledge, interest and concern of its residents, both old and new, for that history, and for the environment of the area, both natural and built.

51. The issues raised in the filed documents are wide ranging.

52. The points of claim filed in 10465 by the objector applicants on 24 September 1998 contended that the development consent should be refused, firstly, on legal and planning grounds, including the substance of their challenge to the EIS, and, secondly, because in respect of the project itself: a. the resource is not scarce; b. the site and surrounding lands and waters are of high conservation significance and are environmentally sensitive because of their heritage significance, visibility, old growth forest characteristics and fauna habitat significance, water quality, recreational and tourist potential; c. the impacts of the development on fauna, flora, landscape, soils, water quantity and quality, flooding, heritage, roads, traffic, the noise and visual environment and the future uses of the land and adjacent Crown land are likely to be severe; d. alternatives are readily available but not described or assessed in the EIS; e. rehabilitation and mitigation measures as proposed (insofar as they are known) are likely to fail; f. the project is likely to be uneconomic because of the cost of the railway infrastructure, and the product is likely to be despatched by road. There is no traffic impact study and truck traffic from the site is severely constrained by road quality, the environmental impacts of road construction and the traffic impacts on surrounding residences.

53. Council's points of defence denied " each and every … component " of the two points of claim.

54. The hearing commencing 15 November 1999 proceeded on the basis of the Statement of Issues, filed on 24 August 1999, which, for ease of understanding this judgment, is set out in full: 1. Whether the geological information provided or referred to is sufficient to prove the resource or quantify the reserves for quarry development. 2. Whether sufficient geological information has been provided or referred to to enable proper quarry planning and consequential environmental assessment. 3. Whether the rock sampling undertaken has been adequate and representative. 4. Whether rock quality is too marginal to permit the project to proceed. 5. Whether sufficient geological information has been presented or referred to to define the quantity and depth of overburden and weathered rock over the intended quarry area. 6. Whether the assessment of extraction scheduling and quarry planning are sufficient and reliable in light of the geological information presented or referred to. 7. Whether the reserves available for quarrying provide sufficient economic justification for the proposal. 8. Whether the proposal is commercially viable. 9. Whether it is practicable and acceptable for quarrying to proceed from the base of the hill upwards. 10. Whether there is sufficient room to locate the processing plant and product stockpiles within the quarry prior to the completion of Stage 1 of quarrying. 11. Whether the areas allocated for the processing plant and product stockpiles are adequate. 12. Whether sufficient areas are available for the instalation [sic] and operation of crushing and screening plant, product stockpile, front end loaders and the quarry operation generally. 13. Whether the topography of the route nominated for the overland conveyer is suitable. 14. Whether there is any, or any sufficient, area adjacent to overland conveyer and the rail for stockpiling and the loading of trains. 15. Whether the progressive rehabilitation plan is practicable and acceptable. 16. Whether the soil erosion hazard has been sufficiently and properly addressed. 17. Whether sediment wash off from unsealed roads has been sufficiently and adequately addressed. 18. Whether the sediment basins are sufficient and adequate. 19. The impact of contaminated water from stockpiles. 21. The impact of water table depression on habitat in Solitary Creek. 22. Whether sufficient allowance has been made for water demand by the quarry. 23. Whether the application should be approved, in view of the inadequacy of the assessment of the impacts of the proposal on the scenic values of the landscape. 24. Whether the application should be approved in view of the inadequate assessment of the potential impact on heritage items. 25. Whether the application should be approved in view of the inadequate assessment of the visual impacts of the appearance of the final land form. 26. Whether the application should be approved in view of the inadequate assessment of the potential impacts on topography and natural vegetation. 27. The adverse visual impacts of the proposal. 28. Whether the visual impact of product transport infrastructure (and storage areas) is unacceptable. 29. Whether the buffer zones provided are sufficient. 30. Whether the proposal should be approved in view of its impacts upon fauna and flora. 31. Whether the survey methodology used to target threatened fauna, for the assessment of impacts on fauna, is adequate. 32. Whether the assessment of the potential impact of the quarry on fauna is sufficient in view of the absence of specific targeting for the squirrel glider, tiger quall, red-crowned toadlet and southern brown bandicoot. 33. Whether the survey for trees upon the site containing hollows as habitat for fauna is accurate. 34. Whether the survey of bird species utilising the site and surrounds is adequate. 35. Whether the proposal ought to be approved in view of its noise impacts. 36. Whether there has been an adequate assessment of noise generated by the conveyer. 37. Whether there has been an adequate assessment of noise generated by the crushing plant, haul trucks, front end loader and rock breakers. 38. Whether the noise analysis for bulldozer use is sufficient and accurate. 39. Whether the assessment of the location and effect of noise barriers is sufficient. 40. The visual and hydrological impacts of the noise barriers. 41. Whether the assessment of noise and vibration generated by blasting is sufficient.

55. The 41 issues raised reflect not only the desirable contents of an EIS, but the evidence of the objectors, and may be grouped as follows: Issues 1-14 Geology and quarry viability Issue 15 Rehabilitation plan Issues 16-22 Erosion, dust and water matters Issues 23-29 Visual and Heritage matters Issues 30-34 Flora and Fauna Issues 35-41 Noise and vibration
56. It is the objectors' contention that the information before the court on all of these matters is inadequate for proper assessment of the application and the court should, therefore, not approve it.

Council contends that all 41 issues are either insufficient to ground a refusal on the merits, and/or amenable to the imposition of its suggested conditions, which it has modelled on the court's consent in Tiocliff Pty Ltd v Yarrowlumla Shire Council (" Tiocliff ") [1998] NSW LEC 13.

The relevant planning instruments are compiled in Exhibit C6 . The subject site is zoned 1(a) - Rural (General) under the Lithgow Council's Local Environmental Plan 1994. The plan notes " This zone provides flexibility whilst protecting rural land " and its objectives reflect that by reference to the promotion of " the proper management and utilisation of natural resources by: (a) protecting, enhancing and conserving: …

(iv) valuable deposits of minerals, coal and extractive materials, by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits; (v) trees and other vegetation in environmentally sensitive areas, where the conservation of the vegetation is significant for scenic amenity or natural wildlife habitat or is likely to control land degradation;

The only uses permissible without development consent are development for the purpose of agriculture (other than intensive livestock keeping establishments or ancillary dwellings); bushfire hazard reduction; forestry (other than ancillary dwellings); home based childcare. Prohibited are development for the purpose of boarding houses; bulky goods salesrooms and showrooms; commercial premises; motor showrooms; residential units; shops (other than general stores).

Development consent is required for any development other than those either permitted without consent or prohibited.

In Schedule 1 to the LEP, Rydal village's railway station, Anglican Church, general store and various railway items are identified as " heritage items ". In Sodwalls, various railway items and Sodwalls House on the Sodwall Tarana Road are similarly identified.

Included in Exhibit C6 are extracts from " State Environmental Planning Policy ("SEPP") No.11 - Traffic Generating Development ". The Schedule to SEPP 11 includes extractive industry or mining as development in respect of which the consent authority must submit a copy of the application to the traffic authority.

" SEPP 44 - Koala Habitat Protection " aims to encourage the proper conservation and management of areas of natural vegetation that provide koala habitat and, inter alia, requires the preparation of plans of management before development consent can be granted in relation to areas of " core koala habitat ", defined as an area of land with a resident population of koalas evidenced by attributes such as breeding females and recent sightings of and historical records of a population. SEPP 44 applies to the City of Greater Lithgow.

" SEPP 45 - Permissibility of Mining " concerns any form of mining including surface mining.

On the specific question of erosion and sediment control, extracts from a Department of Conservation and Land Management publication " Urban Erosion and Sediment Control " (1992) were tendered (see Exhibits A37 and A41 ). These will be dealt with at an appropriate stage in this judgment.

In terms of the adequacy of the EIS, I note what Cripps J said in Prineas v Forestry Commission of NSW & Ors (1983) 49 LGRA 402, namely that an EIS must be: sufficiently specific to direct a reasonably intelligent and informed mind to the possible or potential environmental consequences of the carrying out or not carrying out of the activity in question. It should be written in understandable language and should contain material which would alert lay persons and specialists to problems inherent in the carrying out of the activity .

His Honour also held that s 111 did not impose on a determining authority, when preparing an EIS, " a standard of absolute perfection or a standard measured by no consideration other than whether it is possible in fact to carry out the investigation ". The fact that an EIS does not " cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or mean that it does not substantially comply with the Act and regulations ".

His Honour held that the relevant EIS in that case substantially complied with the Act and Regulations, even though it might have been better if certain omitted matters had been considered. Cripps J's decision in Prineas was affirmed by the Court of Appeal (1984) 53 LGRA 160. Hutley JA said (at 163):

It would not be too much to say that it is almost impossible to concede an E.I.S. which literally complies with everything which the regulations require.

Hutley JA's statement was approved by Samuels JA who delivered the principal judgment in Guthega Development Pty Ltd v Minister Administering the National Parks & Wildlife Act 1974 (1986) 7 NSWLR 353 at 361 or 61 LGRA 401 at 409-410. Samuels JA said (at 366 or 415): … some element of reasonableness must be introduced … [Cripps J] read the expression 'to the fullest extent possible' as incorporating 'a concept of reasonableness and practicability …'.

In Helman v Byron Shire Council & Anor (1995) 87 LGERA 349, Kirby ACJ and Priestley JA agreed with Handley JA, who (at 356) referred to Cripps J in Prineas (at 417): The fact that the environmental impact statement does not cover every topic and explore every avenue advocated by experts does not necessarily invalidate it or require a finding that it does not substantially comply with the statute and regulations. 71. In Stafford Quarries Pty Ltd v Kempsey Shire Council & Anor (10199 of 1992, 23 October 1992) Stein J adopted what Cripps J and the Court of Appeal said in Prineas , and referred to the collection of the necessary authorities by Pearlman J in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21. His Honour dealt in detail with the shortcomings of the EIS in that case, and said (at p 10): In brief, crucial environmental impacts have not been addressed in the EIS. Those reading the document could not be properly informed of the issues. The document is little more than a brief general discussion of impacts on the environment. Impacts on the environment by reason of the development are likely to be inevitable. The document contains no specificity on these impacts or steps to mitigate them. It cannot be reasonably claimed that the document is sufficiently specific to direct a reasonably intelligent and informed mind to the possible environmental consequences of the proposal.

While an EIS is not required to be perfect and need not cover every topic or explore every avenue, this EIS may fairly be said to be superficial, subjective and non-informative. Far from being comprehensive in its treatment of the subject matter, it fails almost wholly to consider key environmental impacts of noise and dust and fails to consider the very real impact of quarry traffic on the right of way. The almost total absence of consideration and compliance with important requirements of cl 34 of the Regulation must lead to the conclusion that the EIS is invalid.

72. Mr Larkin relied on Stafford in particular because of the apparent shortcomings of the discussion of road use and traffic generation in the EIS in that case. Stein J said (at 12): … the EIS wholly fails to give a proper description of the development nor an adequate description of the environment. Moreover, it clearly fails to identify and analyse significant likely environmental interactions - air quality, noise, overpressure and ground vibration, visual impact and heavy truck traffic impacts. It also wholly fails to assess the effects of the development on the right of way to be used by the applicant for processing and stock piles and as a haul road. The document, which was publicly exhibited to elicit comment, is substantially flawed.

73. His Honour held that it did not satisfy the requirements of s 77(3)(d) and as the development application was not accompanied by an effective EIS, no consent could be granted.

74. In Golden v Coffs Harbour City Council (1991) 72 LGRA 104, Stein J had said (at 108): It is accepted that in many quarry applications, if not most, there will be changes made between the exhibition of the development application (and EIS) and the decision. This will often be the case when an applicant accepts constructive criticism of the council or an objector and seeks to meet that issue by an amendment. In this fashion a development, if approved, will be improved and its impact mitigated. However, questions of fact and degree will invariably arise as to whether an amendment has overstepped the mark and what may be the consequence thereof: … Nonetheless, there should be no room for the attitude that 'any old EIS will do' because amendments may be made along the way to the ultimate decision. The EIS is a most important step in the process. It is the document which is exhibited to the public and upon which they form the view as to whether to object or not. If what the decision-maker is faced with is a markedly different application, which bears little resemblance to the EIS, then the public participation inherent in the process is diluted and, worse still, potential objectors may be deprived of the opportunity to participate. (See also further judgments of Stein J in Leatch v National Parks & Wildlife Service and Shoalhaven City Council (1993) 81 LGERA 270 and Rosemount Estate Pty Ltd v the Minister for Urban Affairs & Planning & Anor (1996) 90 LGERA 1).

75. In Tiocliff Pty Ltd v Yarrowlumla Shire Council [1998] NSWLEC 13, Lloyd J relevantly concluded: (a) I cannot conclude that failure to provide a cost-benefit analysis is fatal to this application. Nowhere in the Act or the Environmental Planning and Assessment Regulation 1994 is it stated that such an analysis is a necessary ingredient of an EIS or a requisite aid to the determination of an application under s 90. Moreover, whilst it is important to consider as full a range of the impacts of any given proposal as possible - including those on 'unpriced values' and equity issues - I do not accept that an EIS must detail the net impact of a proposed development in the form of a cost-benefit analysis. (p23) (b) In my view the changes sought to be made in this instance do not convert the original concept into something substantially different. The development remains one for a 'quarry to achieve the objectives described in the EIS'. The volumes and types of material to be extracted remain the same, the method of extraction remains the same, the number of truck movements remain the same and the various impacts which the development will have, apart from its visual impact, remain the same. As a result of the removal of the bund, the visual impact will be lessened, but the development remains, in my view, substantially the same development, differing only in a minor respect from the original concept, namely a lessening of the visual impact. (p28).

76. In determining whether or not the court should grant consent to this development application, the following heads of consideration under s 90(1) of the EPA Act would seem to be relevant: … (b) the impact of that development on the environment (whether or not the subject of an environmental impact statement) and, where harm to the environment is likely to be caused, any means that may be employed to protect the environment or to mitigate that harm, (c) the effect of that development on the landscape or scenic quality of the locality, … (c3) whether there is likely to be a significant effect on threatened species, population or ecological communities, or their habitats, … (d) the social effect and the economic effect of that development in the locality, (e) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of that development, (f) the size and shape of the land to which that development application relates, the siting of any building or works thereon and the area to be occupied by that development, (g) whether the land to which that development application relates is unsuitable for that development by reason of its being, or being likely to be, subject to flooding, tidal inundation, subsidence, slip or bush fire or to any other risk, (h) the relationship of that development to development on adjoining land or on other land in the locality, (i) whether the proposed means of entrance to and exit from that development and the land to which that development application relates are adequate and whether adequate provision has been made for the loading, unloading, manoeuvring and parking of vehicles within that development or on that land, (j) the amount of traffic likely to be generated by the development, particularly in relation to the capacity of the road system in the locality and the probable effect of that traffic on the movement of traffic on that road system, … (l) whether utility services are available and adequate for that development, (m) whether adequate provision has been made for the landscaping of the land to which that development application relates and whether any trees or other vegetation on the land should be preserved, (m1) whether that development is likely to cause soil erosion, … (o) the existing and likely future amenity of the neighbourhood. (p) any submission made under section 87, … (q) the circumstances of the case, (r) the public interest …

77. In these circumstances Rydal bears the onus of establishing that there has been a sufficient assessment and treatment of relevant environmental impacts for this Court to grant its consent.

78. Rydal and Council have devised and agreed upon what they submit are appropriate conditions to be imposed on any consent granted by the court, but Rydal further suggested that resort might be had to the provisions of s 91AA of the EP&A Act, which relevantly provides: (1) A development consent may be granted subject to a condition that the consent is not to operate until the applicant satisfies the consent authority as to any matter specified in the condition. Nothing in this Act prevents a person from doing such things as may be necessary to comply with the condition.

79. Council granted a deferred commencement consent to Rhyolite ( Exhibit R20 ), but did not support one here. Rydal submitted a draft deferred commencement condition ( Exhibit R21 ).

80. Rydal relied upon evidence from the following expert witnesses who gave both written and oral evidence: (a) Laurence Trevor Clark - noise/vibration (b) Andrew Gregory Kielniacz - water/erosion (c) F. Dominic Fanning - flora/fauna (d) Dr Steven Rosin - geology (e) Michael England - environmental assessment

81. The objectors relied upon evidence from the following expert witnesses who gave both written and oral evidence: (a) Dr Martin Denny - flora/fauna (b) Donald Reed - geology (c) Dr Emmett O'Loughlin - water/erosion (d) Robert McCotter - environmental assessment (e) Dr Richard Lamb - visual/heritage (f) Athol day - noise/vibration
82. In the case of McCotter, O'Loughlin and Denny, no objection was raised to the objectors' relying on affidavits prepared for 40183 ( Exhibits A3, A6 and A9 ), nor on the affidavit of Roger Lembit in the same proceedings ( Exhibit A13 ).

Ten objectors gave oral evidence - Alan Dickson, Andrew Reeve, Jeffrey Davies, Ben Stack, Mary Hampton, Lorraine Stack, Andrew Heeley, Rachael Young, Elizabeth Hassan, and Jane Perry - to supplement their written statements ( Exhibits A18-31 ).

Council called no oral evidence and relied only on the documents (especially Exhibits C1-6) .

The various draft conditions appear in Exhibits C7-9 and R21 .

Council and Rydal relied upon " clearances " from various government agencies, but no specific evidence, other than correspondence and meeting notes (in Exhibits C1 and C2 ), was adduced from them or their personnel.

I turn now to deal with the substance of the matter, endeavouring to group issues, both in a convenient and appropriate way, and as they evolved during the evidence.

I adopt, at the outset, a comment made by Lloyd J in Tiocliff (at p9): 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.

Rydal has relied upon December 1997 market research by Bourne Consulting Group (" Bourne ") (see draft report in Appendix D to vol 2 of Exhibit A1 ), which indicated that, if this quarry did not proceed, another would have to be found to supply the Sydney market.

Bourne expected the quarry to operate 1998-2008, and said of the broadly-defined " construction industry " that " real spending … is expected to fairly rise solidly over the period 1996-97 to 2001-02. Growth of around 22% expected … ".

The Rhyolite objection ( Exhibit C1 fol 97ff) claimed that its Hartley quarry was not yet operational because it had to win its market share in a market place dominated by three large companies.

Reed made no secret of his having been retained by Rhyolite as a " principal consultant ". As such he may have contributed, directly or indirectly, to the company's letter of objection dated 24 February 1998, from which he quotes at some length in par 93 of Exhibit A5 , and to which he adds some updated material in par 94, relevantly commenting: 94. … · demand for premium grade aggregates (principally for ready mixed concrete) has risen to an all time high estimated at between 7.5 and 8 million tonnes in the lead up to the Sydney Olympics, however that demand has plateaued and is expected to return to the average figure nominated in the AUS10 document. 95. These factors aside, I believe that the essential conclusions drawn in the AUS10 correspondence are correct. The author(s) of the Bourne report have substantially overstated demand for premium quality aggregate products and understated reserves of hard rock aggregates remaining at alternative locations to supply Sydney markets. 96. … In short, I do not see how Rydal Quarries can expect to be competitive within the aggregate supply market into Sydney if they intend to deliver principally by rail. Problems relate to both the capital and operational costs involved, particularly in relation to the high costs of rail freight and re-handling. 97. Confirmation of the commercial viability of the project is critical to ensure that quarry development does not come to a halt during its early stages when environmental impact and site rehabilitation costs may be at their peak. There are numerous examples of substantial, long term visual scarring and other environmental impacts (such as site erosion), resulting from new quarry developments having been abandoned at a relatively early stage due to financial problems ….

I accept Mr Miller's submission that the consent authority need not be satisfied of a secure market for every single kilogram of material that may be extracted over a 20 year quarry life, but I am not satisfied on the evidence before me in this case that the exploitation of this particular resource is justified at this time.

I turn now to the nature of the resource itself and to the technicalities of its proposed extraction.

Rock suitable for coarse aggregate should be sound, resistant to abrasion and chemical attack, and relatively free of deleterious materials (eg organic matter, clay, coal). The coarse aggregates are usually crushed stone, river gravels and prepared road base ( Exhibit R3 ).

Jeffery & Katauskas Pty Ltd (" J&K ") did some work on the site and nearby areas for R W Corkery & Co Pty Ltd (" Corkery ") in early 1992, but recommended that further work would need to be done to assess a quarry site in the immediate vicinity. Corkery endorsed that recommendation. (See England's qualification of Corkery's work in par 8 of Exhibit R12 , but Corkery's report is included among the EIS documents in Exhibit A1 vol 2).

J&K had concluded that the site was " potentially suitable … though there are reservations " (see Appendix A to the EIP, which is Appendix C in Exhibit A1 vol 2). J&K also relevantly noted " relatively high mica contents " in their samples.

In February 1997 and February 1998 Elta Exploration Pty Ltd (" Elta ") provided reports to BLK on the coarse aggregate resource at Mount Lambie, Rydal, New South Wales ( Exhibit R3 ). The 1997 report is expressed to be an independent " opinion as to technical worthiness " for inclusion in a prospectus.

The reports refer to a statement by the NSW Department of Mineral Resources that there is an urgent need to establish sources of coarse aggregate (hard rock) to be set aside for future extraction, and that extensive exposure of very massive, hard hornfels over the right extractive industries lease applications falls into the relevant category.

Elta carried out geological investigations between December 1996 and February 1997 on the eastern portion of lot 126 and included the area covered by portion 62 of vacant Crown land. The area located over the south-eastern corner of lot 126 was considered to be the most advantageous site for the development of a hard rock quarry, with associated mining and processing plant and mining infrastructure.

The 1997 report concluded (p6): Although outcrops are not continuous over the area, there is almost continuous exposure of the hornfels sequence as bedrock in Deadman's Creek which transects the entire area and semi continuous exposure over the ridge tops. The railway cuts on the Main Western Railway Line in the eastern part of the project area show that less than 10 percent of the exposed sequence is occupied by the softer, finer grained interbeds. The conclusion reached therefore is that the hornfelsic facies is by far the dominant lithology over the area. Prior to commencement of any quarrying operation however, detailed diamond drilling on a close patterned grid would provide definitive lithological composition of the quarry site.

The 1998 report was commissioned " for subsurface confirmation of the quality of the hornfels rock at depth within the nominated quarry area Mount Lambie, Rydal ", and diamond drill testing confirmed: … a hornfels sequence comprising a near vertically dipping contact metamorphosed sedimentary sequence. A surface mantle of soil and decomposed hornfels has an irregular geometry ranging from 1.4 to 14m thickness. Alteration of the hornfels is restricted to the uppermost portion of the drill holes and varies in thickness from 0 to 4.3m.

Homogeneity of the fresh hornfels sequence featured prominently in each of the drill holes with clay intervals …

A high degree of homogeneity both textural and compositional was observed in the sample suite and may indicate (subject to engineering tests) that their properties as an aggregate are also likely to be homogeneous.

Some further testing was recommended, but " the aggregate tested was found to be acceptable for use in concrete production, road base and sub-base material and for road sealing aggregate ".

A petrographic report from RockMin Laboratory dated 11 February 1998 is annexed to Exhibit R3 . It was signed by " G. Deleon " whose conclusions included this " reservation ": Based exclusively on microscopic observation, and not supported by any engineering tests, particularly load and crushing tests, it is believed that the rocks from cores 7B and T6 (except at the deepest level of T6) would possibly better satisfy requirements for engineering applications than anyone from the core T8. However, a general impression is that the investigated rocks may be technologically inferior to similar rocks studied last year. A comment made on that occasion about the limitations imposed by ASTM C295 Standard with regard to the presence of mica may apply here too.

It appears from the evidence that some other investigations were undertaken, and at least preliminary advisings obtained (see e.g. " MineConsult " report dated 4 February 1997 - Exhibit A44 ), before the EIS was prepared and submitted.

The geological elements of the EIS, and several other exhibits (Exhibits R5, R10, R11, and A35-36 ) were written by Rosin, Rydal's principal witness on such matters. The objectors relied primarily on the evidence of Reed regarding geological matters. Whereas Rosin conceded in cross-examination that he is more experienced in open cut and sand mining matters than hard rock quarries (see his CV in Exhibit R5 ), Reed has been in the latter industry since 1972, holding several senior posts before commencing his own consultancy in 1987 (see his CV in Exhibit A38 ). As a consultant giving the court expert testimony on behalf of the objectors, he accepted the regime in this court's Expert Witness Practice Direction ( Exhibit R15 ).

Both these gentlemen were subjected to searching cross-examination on their written evidence and, with the greatest of respect to Rosin, the court finds Reed's evidence the more persuasive. As Lloyd J said of him in Tiocliff (at p11) " I have no reason to reject Mr Reed's opinions. On the contrary I find his evidence to be objective, dispassionate and helpful ".

Rosin admitted that the proponent's position had shifted considerably from that presented in the EIS, and, indeed, it shifted further during his evidence. Many design features were substantially altered (e.g. all sedimentation basins will now be internal to the quarry site), and many concessions were made (e.g. topsoil depths are simply not known and stockpile sites, therefore, cannot be properly chosen and designed).

Rosin admitted that further resource testing would be necessary, but be adhered to the view that the environmental impact issues could, and perhaps should, be resolved first. On many of those matters I found his evidence far from cogent. Whatever detailed quarry planning has been done is based on estimate and extrapolation, the bases for which the court finds frankly unconvincing, and which Reed says are " dramatically wrong ".

On the other hand, during Senior Counsel's strong cross-examination, Reed maintained the firm opinions he expressed in his October 1999 report ( Exhibit A5 ), the " Summary " section of which reads as follows: 1. There are a number of very obvious and serious deficiencies within documentation tabled to support the Rydal quarry development. Of particular concern are conclusions that I have drawn in this report in relation to: ¨ the geological evaluation of the site; ¨ quarry, operational & rehabilitation planning; and ¨ the commercial viability of the proposed quarry development. 2. The principal conclusions drawn within the … report are that: ¨ Insufficient geological data is presented to 'prove' the resource in terms of: · overall deposit homogeneity; · rock: overburden ratios and potential product yields; · the blasting & crushing characteristics of the rock; and · the consistent, geotechnical quality of the rock as a source of premium quality aggregates. ¨ Sufficient data has however been presented to seriously question: · the representativeness of sampling; · the potentially deleterious impact of high mica contents in the rock; and · the variations in test results tabled. ¨ Quarry plans presented within the Supplementary Report are seriously deficient. The plans present a sequence of extraction that will have severe and adverse ramifications for the quarry operator. ¨ Operational plans presented within that same report are unworkable, with: · no provision for process plant or stockpiles during Stage 1 development; · inadequate area reserved for process plant and stockpiles after Stage 1; · no provision for haul road access to upper quarry benches; · no provision for the storage or disposal of quarry by-products; · an unsuitable route nominated for the overland conveyor; and · no workable solution presented for the loading of product to trains. ¨ Rehabilitation planning is similarly untenable with plans to progressively rehabilitate quarry bench and floor considered to be totally impractical from a quarry operational point of view. ¨ The commercial viability/justification of the quarry development is based on demonstrably incorrect data in relation to market supply and demand.

Other strong submissions in Reed's first report, which surveyed, inter alia, relevant material before the court in Exhibits A1, R1 and C2 , include the following paragraphs: 21, 25, 28, 31-33, 45, 50, 55, 56, 58, 66, 74, 76, 87 and 88. I do not wish or need to set them out in full in this judgment, but I should note that in par 98, Mr Reed lists, inter alia, the following relevant conclusions:

¨ the homogeneity and overall quality of the hard rock resource have not been geologically 'proven'; ¨ the blasting and crushing characteristics of the rock have not been properly assessed; ¨ rock sampling (for laboratory testing) has been selective, not representative; ¨ serious questions raised by the proponents own consultants in relation to rock mineralogy (mica content in particular) have not been answered; ¨ quarry planning is not based on accurate geological modelling and is seriously deficient in terms of its planned (uphill) sequencing; ¨ no provision has been made for the locating of crushing and screening plant or stockpiles during Stage 1 of quarry development; ¨ inadequate area has been allocated for such process plant and stockpiles after Stage 1; ¨ no provision has been made in quarry plans for haul road access to upper quarry benches; ¨ no provision has been made in the documents for the storage or disposal of quarry by-products - waste and overburden; ¨ rehabilitation planning is untenable with plans to progressively rehabilitate quarry bench and floor considered to be totally impractical from a quarry operational point of view; 112. Some of his specific criticisms (e.g. of the proposed conveyor and the lack of detail as to train-loading) I have disregarded, because they fall outside this particular DA and appeal.

In his second report, dated November 1999 ( Exhibit A17 ), Reed dealt with the Elta report ( Exhibit R3 ) and W/Clyde's memo of 12 November 1999 ( Exhibit R5 ). He departed from only one conclusion he had drawn in par 98 of his principal report, namely one concerning rock-to-overburden ratios and product yields, in respect of which he concluded (par 7 of Exhibit A17 ), referring to " Figure 4 " of the Elta report:

· there is very little data east or west of the central ridge areas within the proposed quarry area; · available data indicates an overburden depth of 3.2 to 14m with the average likely to increase with additional drilling away from the central ridge areas; · the depth of overburden shown in Figure 4 confirms conclusions drawn in my October report relative to quarry planning in particular.

Reed's position may be summarised as agreeing that Rydal should act on the recommendations it received from its own experts to rectify the deficiencies in its documentation and planning. So far only the known " best areas " have been drilled and assessed, and the petrological results need to be verified by mechanical testing. The actual quarry site proposed needs to be closely scrutinised.

As Reed points out for the second time ( Exhibit A17 p1), the proponent was in receipt of recommendations for far more extensive drilling than had actually taken place, and some of the drilling that has in fact taken place, is:

made all the more questionable by the fact that drill holes have [sic] are understood to have been drilled vertically within sub-vertically dipping rock strata … parallel to original bedding rather than at 90o to it ", with the result that they " cannot be considered site representative . At best, they probably represent the geology of a single, 40-50m wide bed of better quality hornfels. Sub-vertically dipping beds located to the east and west of mapped outcrop are far more highly weathered (refer Figure 4) and may comprise substantially inferior material.

Reed went on to note (Exhibit A17 p3 ) : Previously tabled laboratory tests were conducted on rock principally sampled from outside the proposed quarry area and test results may not be representative of that area. Despite the above-quoted recommendation by Dr Goldberry, no further representative sampling or laboratory testing appears to have been undertaken. The reservations that I expressed in paragraphs 34-49 of my October report are considered all the more critical in the light of this evidence.

Reed's view is that an EIS for a quarry should provide enough information for the proponent to " sign off " on a detailed quarry plan and this one does not, largely, it would seem, because it looks at components of the proposed quarry's operation in isolation from each other - it is necessary to strip overburden at the same time as you remove quarry material, build and maintain roads, attend to environmental and safety matters, and export product for sale. The gradual rehabilitation proposed may well be a desirable objective but further complicates the interaction of functions (e.g. bench areas requiring rehabilitation will be required as roads).

Mr Miller submitted that Council was happy with that situation, but Mr Davison was forced to concede this last difficulty, as well as conceding that this quarry would not proceed without further testing, after which a detailed quarry plan would be prepared.

MineConsult ( Exhibits R16 and A44 ) in early 1997 prepared a conceptual quarry design in order to make a preliminary estimate of potential quarriable reserves on site. The report says that " further analysis must be undertaken of rock quality". The EIP (at p 3-3) set out some preliminary " design criteria " but adopted estimates of material without doing further work. Rosin prepared further conceptual plans during his evidence ( Exhibits R10 and R11 ). Reed criticised virtually every aspect of the current evidence and concluded that the proposed quarry simply could not be operated. He gave evidence of a similar one which had failed and was abandoned ( Exhibit A39 ).

I have concluded that the testing in this case is markedly inferior to that made available to Council in Rhyolite and to the court in Tiocliff .

England took overall responsibility for all the work done in preparing the EIS and the various supplements, and he was principal author of the main EIS supplement ( Exhibit R1 ), Rydal's response to McCotter ( Exhibit R6 ), and the first page of Exhibit R7 .

England is W/Clyde's Principal in the area of environmental planning, and he has 25 years relevant experience in environmental impact assessment and reporting, especially in mining, landfill and remediation projects (see CV in Exhibit R5 ).

The principal witness for the objectors on environmental assessment and general planning issues was McCotter, a well-known expert witness, with twenty years relevant experience. In his affidavit prepared for 40183 ( Exhibit A3 ) McCotter made twenty major criticisms of the alleged inadequacy of the EIS, all of which follow the basic thesis that, without precise details of what is proposed, environmental impacts and amelioration measures cannot be properly assessed.

McCotter observed in the first report ( Exhibit A3 ) the absence of sufficient detail for such matters as the quarry haul road, access road, proposed and necessary " buildings ", sewerage works, processing plant, bunding, sedimentation ponds, process water ponds, truck arrangements, etc. In his November 1999 supplementary report (Exhibit A4) McCotter acknowledged that Rydal's evidence had now addressed some of the twenty items, but only briefly, vaguely, and/or conceptually, and, in his view, quite inadequately. He expressed concern that the indicative sites of several amelioration proposals were too close to Deadman's Creek.

In his oral evidence he also criticised the evolving quarry plan ( Exhibit R11 ) as only conceptual. He acknowledged that quarry planning was an expensive exercise, but submitted that it was necessary for the adequate assessment of environmental impacts.

Having regard to the evidence of Rosin, Reed and McCotter, despite the best endeavours of England, I have concluded that the material available to the court fails the test discussed in pars 66-75 above, which the cases have held to be the necessary basis for an approval. In this respect, the proponent has failed to discharge its onus of proof.

In fairness to the parties, and for completeness, I turn now to some of the other s 90 considerations.

The court had the benefit of evidence on flora and fauna issues from three highly qualified and well-respected experts, two of whom also gave oral evidence. The third witness, Lembit, ( Exhibit A13 ) was highly critical of the flora survey work done for the EIS and thought the quarry site had " high conservation significance ". An objector, Davies, also had a particular concern about platypus habitat.

Rydal relied on the evidence of Fanning ( Exhibits R1, R4, R8, and R9 - CV in Exhibit R4 ) who found nothing " special " about this site to distinguish it from the resources and habitat around it. He defended his methodology, but acknowledged its significant differences from Denny's. He developed his views after the EIS work was done, surveying the site " in its context ". He disputed assertions of " high " conservation value.

Dr Denny ( Exhibits A10, A11, A12, and A32 ) conducted what seems to the court (c.f. Mr Miller) to have been a more " empirical " investigation, rather than employ existing " predicted species " lists, and thought Fanning's work inadequate in several (but not all) respects. He saw the site as the linchpin of a wildlife corridor, with high value as habitat for a range of fauna, some of which might normally not have been expected there.

Overall, despite Mr Larkin's assertion that Fanning is the " odd man out" (as DLWC, in its days as CALM, Denny and Lembit all rate the site as having " high " conservation values), I have not been convinced of any special issues of flora and fauna not capable of being dealt with adequately by appropriate conditions.

England (in Exhibit R7 ) described Rydal's proposal for progressive site rehabilitation as " both feasible and desirable ", yet the EIS is silent on final land formation, the final quarry void, final drainage patterns, and final revegetation plans (McCotter, Exhibit A3 ).

On this subject I note again Reed's views, and Mr Davison's concession, regarding the practical difficulties of gradual rehabilitation in these circumstances (see pars 117-118 above).

On 11 November 1997, DLWC (Orange) stipulated that Rydal should produce an integrated soil and water management plan, including temporary and permanent sediment control structures (especially on internal access and haul roads). That department's guidelines (in the name of CALM) are partly in evidence as Exhibits A37 and A41 , as is Council's notation of DLWC's reservations, at a meeting between Council officers, DLWC and England, on 1 June 1998. (See Exhibit C1 fol 350 and Exhibit C2 fols.23-25).

At the hearing, Rydal relied on the evidence of Kielniacz (see CV in Exhibit R5 ), an engineer of 10 years standing, employed by W/Clyde, whose practice has relatively recently moved into water/soil issues. Kielniacz was the author of relevant material in Exhibits R2 and R7 . He conceded that there were major difficulties with, but that he had not visited, the site, and that designs (including Exhibit R11 ) were preliminary/indicative/conceptual only. Rydal would move away from the EIS and follow the CALM guidelines and DLWC requirements.

On the other hand, the objectors relied on O'Loughlin, an expert of 40 years' experience who visited the site (see CV at Annexure " A " of Exhibit A6 ). His affidavit of December 1998 in 40183 ( Exhibit A6 ) was followed up by a further report ( Exhibit A7 ), in both of which he made major criticisms of the EIS - inadequate allowance for storms, inadequate information on rock permeability, sediment control and bunding, and inadequate examination of potential depression of the water table.

In his oral evidence he added a particular concern that if Reed is correct about mica-type material in the product of the quarry, such " fines " will complicate sediment control and pollute waters, threatening aquatic flora and fauna. He noted that " fines " will also come from the running of traffic on unsealed roads. Silt fences alone would not be an appropriate safeguard, and the EIS did not address the " fines " problem.

O'Loughlin identified the subject site as " Mt Walker soil landscape ", and, as such, the EIS may have understated its erodibility. Kielniacz rated the site as currently " low to moderate " in this respect, and likely to move only to " moderate " during quarry operations. He said the site would never be so exposed as to be rated " high " on an erodibility scale.

O'Loughlin also identified the quality of surface runoff water generally as a major problem inadequately addressed.

Corkery's report was annexed to O'Loughlin's affidavit ( Exhibit A6 ), presumably at least partly as a result of this comment (p8 sec 6.0): It is desirable that as many safeguards as possible be identified early in the planning stages of the project to ensure that they are properly incorporated throughout the project planning and not as an afterthought.

O'Loughlin is certainly of the view that it is appropriate, indeed crucial, that erosion controls and drainage systems are clearly in place before any major surface disturbance.

England gave some evidence in response to O'Loughlin ( Exhibit R12 ) and defended the adequacy of the EIS.

Mr Davison submitted that Rydal's bund proposals, as presented to the court (e.g. Exhibit R11 ), would ensure that all sediment would be diverted into, and contained upon/within, the working quarry site, i.e. away from creeks.

Mr Davison also asserted that Rydal proposed that all roads would be kept watered, but nowhere in the evidence can I see any assessment of the necessary water traffic or its impacts.

I have concluded, from all the evidence, that there is no real room for serious concern about the impact of vibration from the proposed quarry. There will be explosions which will cause vibration, but there is no evidence that this poses any threat to any residence, heritage item (such as the historic railway viaducts), or undertaking (e.g. Fish River Water Supply pipelines).

The serious conflict of evidence and opinion as between the experts on noise , respectively relied upon by Rydal and the objectors, really counts for little in the end analysis, because Council proposed and Rydal accepted an absolute noise limitation condition ( Exhibit C8 , as incorporated in the latest version of Exhibit C9 - condition 30). Mr Davison said simply: if Rydal fails to meet that target the quarry will not operate, but, anyway, our proposed monitoring may well lead to more screening.

The objectors say that the DA should be refused in any event, as failure to meet such a condition satisfactorily would result in the quarry being closed and rehabilitation terminating incomplete. The objectors rely on the submission by Day that the noise analyses presented by Rydal were the most superficial he had seen. In any event, the objectors say that the final screening proposals should be available for assessment now.

Such criticisms from Day must be given some weight. He has worked full-time in acoustics since 1971 and demonstrated to the court that he has had much quarry experience. His evidence can be found in Exhibits A8, A15 and A43 .

Rydal relies on the evidence of Clark, who has had twelve years as an environmental consultant and has turned his focus to a specialty in noise only in recent times. Clark was the author of the noise sections of the EIS, and Exhibits R5 and R7 . His work was based on a " point source " some 2-3 metres above the quarry ground level contour. He presented this as the worse-case scenario, but acknowledged in cross-examination that worse cases were possible.

In the evidence there is substantial debate about the specifications, number and inter-relationship of the noise-causing equipment which will be utilised in this quarry, and about the duration of the various noise-generating activities involved. In this context it must be recalled that this hearing does not cover the other related and potentially noisy operations, involving the proposed conveyor and the rail operations (both of which will be closer to the nearest affected residences).

Clark said simplistically that Rydal will ensure that it uses quieter equipment and reduces all noise levels by careful siting and good screening. He asserted that a 35dBA absolute limit, from the site as a whole, is achievable with care and effort; Day says that from his experience that is an impossible target, as there will be twenty significant noise sources involved in the operation of this quarry, whereas the EIS assessed only the noise generated by a single bulldozer.

Day, on the other hand, picked up on Clark's concession that his " worse case " was not " the worst case " and presented to the court the following scenario ( Exhibit A43 , p2, see 1.3):

Assuming that with careful selection of equipment and no limit on high barriers, he was to achieve the L10 limit of 35 dBA from one major item of plant (250 kW diesel engine powered), we submit the following even worse case scenarios.

Quarry Equipment Operation Cumulative L10 noise level

Hypothetical 'Worse Case' (250 kW diesel engine) scenario 35 dBA With two dump trucks operating together, add 3 dBA 38 dBA With a hydraulic rock breaker operating for part of the time also, + 2 dBA 40 dBA With crushing and screening plant operating for most of the time, add 1 dBA 41 dBA With the conveyor operating for most of the time, add 1dBA 42 dBA With open steel railway trucks being loaded by a radial stacker, add 3 dBA 45 dBA With noise reflected inside the amphitheatre-like quarry, add 3dBA 48 dBA With light winds from the West for say 25% of the time, add 10 dBA 58 dBA

Some of the underpinning estimates of this analysis (e.g. noise reflection, impact of light winds from the west) were acknowledged as most conservative by Day in his oral evidence, and I found his evidence far more convincing than Clark's.

What is quite clear from the evidence is that the prevailing winds affecting this site (see limited data at pp 8-1 and 8-7 of Exhibit A1 Vol 1) will carry noise towards the properties known as Mara Park, Fairseat, Brickyard and Lorjon, and that extensive and substantial noise barriers would need to be located very close to the noise sources, as a following breeze diffracts noise over barriers.

The noise from ancillary road transportation has simply not yet been addressed, but I accept Mr Davison's contention that the haul road is quite likely to be effectively contained, and possibly also adequately screened, within the quarry operations area.

However, I have concluded that, overall, the noise impacts of the proposal on those nominated residences are likely to be quite unacceptable if they are not kept to 5dBA above background, which Day has persuasively argued is virtually impossible.

These two issues are canvassed together because they were the joint subjects of Lamb's evidence, and that evidence postulates an inextricable linkage between them in this case.

Council submitted that some visual impact is inevitable, but in this case is insufficient to ground a refusal of consent. England said on Rydal's behalf that visual impact had never been denied but it was not significant.

The arguments in favour of approval submit that the " views into the site " are few in number and site specific, and that all are restricted to some degree by distance, topography, bunding and vegetation, to the extent that quarrying activity will be seen only as it reaches the ridge top, but then only from Mara Park to the east, and from the vicinity of Sodwalls Inn to the south, (as obstructed by bunding and vegetation). (I note in the context of such submissions that the visual impact of the use of Bonaventure Road for access and egress has not been assessed, nor have relevant measures for its amelioration).

The court accepts Dr Lamb's credentials to give expert evidence on both areas of concern. He comes from a background in botany, but he lectures at university level in architecture and heritage, and frequently gives evidence in this court on visual impact issues (see his CV attached to Exhibit A14 ).

Rydal and W/Clyde present a report by Navin Officer dated December 1997 as their " Archaeological and Heritage Survey " ( Exhibit A1 Vol 2). In essence it focussed on archaeology and aboriginal matters, but it identified three items of what might be called " quarry heritage " (one in the centre of Portion 62, one on the 126/62 boundary, and the third just east of the eastern edge of the quarry site within portion 126). Nothing is noted from outside those immediate areas.

On the other hand Lamb ( Exhibit A14) surveyed the history of the wider district at some length, identifying surviving heritage items regarding landscape, railways, roads and inns. No landscape heritage values are acknowledged at all in the EIS, or anywhere else in Rydal's case - Mr Davison said the only items of heritage value are in the township of Rydal, but as Lamb says, no assessment was made by Rydal of the heritage importance of removing the upper part of the ridge on the site from an important district landscape. In his critique of the EIS (see Exhibit A14 , p11) Lamb notes:

The extracted area would be up to 500m in width and would involve the creation of a new cliff-like feature up to 85m in height … [which] would be prominent at any distance [and will be] vastly larger than evidence of similar activities in the past.

Dr Lamb goes on (at p24) to identify as an outcome of the proposed quarry " extensive and permanent scarring of the ridge and hill slope ".

Clearly, visual impact must be assessed on a broader basis than simply checking on the likely view from a homesite, no matter how far away.

As Lamb observes, visual impacts are not entirely objective - even though old extraction sites are " usually found in rural landscapes and, though not scenic, … [are] part of their legitimate character ", they tend to provoke emotional reactions in viewers.

Dr Lamb's " weighting " methodology is explained and applied in an appendix to his report.

His conclusion is that the visual impacts of this proposal are " moderate to high ", because the quarry will be " more prominent than other elements in the scene, because of its character, location and the combination of these factors ", and will have " impacts on views in an area of established heritage significance ", deriving such value due " largely to the visual evidence of former landscape patterns, meanings and practices". ( Exhibit A14 p23).

The assessment concluded that there were many locations affected by significant impacts. Viewers from areas on roads, and rural properties to the south, south east and east of the site have the potential to experience significant impacts, depending on the extent of visibility of the site. High impacts such as those predicted for the properties and roads above require consideration of measures to reduce these to an acceptable level.

Even if it were assumed that the ameliorative measures which are proposed would be effective, there would be some residual impacts of the development which would remain. The most significant effects would be the change of the site from a wooded natural hillside and ridge to a steep, stepped, rocky, cliff like face. The other most marked residual impact would be the change to the topography of the upper part of the site to a more steeply concave one. Because it faces south, the new face of the ridge would be more often in shade than is presently the case and this would accentuate the change in its form. There would be a definite contrast with the remaining part of the landform and with the characteristic form of the regional landmark, Mount Lambie.

In my opinion, no only the activity, but the final appearance envisaged, is not in character with the current landscape and its established heritage and scenic values and is inappropriate. Therefore, the whole approach to visual impact amelioration for the operation is also inappropriate. It amounts to cosmetics, aimed at slightly reducing the visibility of the actual working operation, when the operation itself and its location on a visible slope and ridge crest is questionable in the scenic context.

I have quoted at some length from Lamb's evidence because I found it compelling and persuasive in those respects, and that part of it which dealt with heritage matters was virtually ignored in cross-examination. (Mr Davison submitted that the court should consider Lamb's evidence on heritage matters only in those respects where there is overlap with visual). It, therefore, stands uncontradicted, and makes out a good ground for refusal of consent.

However, I note that when it came to the location and dimensions of the quarry site in the landscape, England was the better witness, casting considerable doubt on the specific viewpoint assertions of Lamb's evidence as to precise visual impacts of actual quarry operations at those points. ( Exhibits A14 and A42 c.f. R13, R14, R17 and R18 ).

I have come to the conclusion that there will be substantial visual impact from quarry operations only at Mara Park, and probably in no circumstances at Sodwalls Inn (see Exhibit C1 fol 261). I would not refuse consent on that basis.

As I have before me no evidence of the visual impacts of the use of Bonaventure Road I can come to no conclusion in that regard. However, I note also that some objectors argued that widening and realigning that road to any extent would also have an unacceptable impact on its heritage.

Rydal's agreement to comprehensive conditions ( Exhibit C9 ) signifies its bona fides in attempting to deal with many actual and potential impacts of the proposed quarry.

Those agreed conditions make clear that any consent granted by the court is limited to quarry works on portion 126 (condition 1), and will not cover the conveyor system (condition 35(a)), railway works (conditions 2 and 25), roadworks (conditions 19 and 23), or " buildings, structures or effluent disposal systems " (conditions 31-34), all of which will require their own DAs.

They lay down strict regimes for use of rail (condition 2), use of roads (conditions 15, 19-23, 25-27, and 34), blasting (conditions 7, and 16-18), vegetation matters (conditions 8-14), and environmental management (conditions 37-38), and an absolute noise limitation of 5dBA above background (condition 30).

I would be content to impose most of the conditions in Exhibit C9 were I minded to grant consent. Some are completely acceptable ways of dealing with issues raised in the proceedings, such as electricity supply (condition 5), bonds and s 94 contributions (conditions 28 and 29), aboriginal artefacts (condition 24), fire requirements (condition 6), EPA licences (condition 4), and community consultation (condition 36).

However, Mr Larkin urged the court to measure several of the agreed conditions against the well-established principles in Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734, 73 LGERA 349, to the effect that important aspects of a development, which provide scope for its fundamental alteration, cannot be left free of doubt, as any such consent is not a " final determination " of the application at hand.

To head off detailed submissions on this Mison point, Mr Davison proposed a s 91AA condition in the following terms ( Exhibit R21 ):

This consent shall not operate until the Applicant satisfies the consent authority that the following tests have been carried out to prove the resource: 1. A diamond core drilling program to a depth of 900 metres AHD. 2. Petrographic analysis of those cores. 3. Trial blast, bulk sampling and trial crushing. 4. Aggregate performance testing. 5. Close centred percussion drilling to define overburden and weathered rock profile.

Council did not support that proposed condition. If there were to be a deferred commencement consent, I would include several further " hurdles " for this project, but I am mindful of the cautionary comments of Talbot J in Remath Investments (No.6) Pty Ltd v Botany City Council (No.2), 11 December 1996.

In any event, a cursory examination of the matters covered in draft conditions such as 3, and 37-39 calls up Mison considerations, and Rydal is not suggesting that any of those matters should be dealt with by way of a deferred commencement consent.

Conditions must be clear on their face and not simply conceptual in nature. See Stein J in Oshlack v Iron Gates Pty Ltd & Anor , 40152 if 1996, 6 March 1997.

Mr Larkin submitted that the " doubtful " nature of some of the agreed conditions showed that the court should refuse the application. However, in order to refuse it, I believe that the court has a duty to go further, and analyse all the evidence , which is what I have endeavoured to do in this judgment.

Amongst that evidence were suggestions of various additional conditions which could be imposed, including some suggested by government agencies which were generally supportive of the project, but in view of the conclusion I have reached on the merits, I do not need to deal with them in detail.

The shortcomings I have identified in this application are, in my view, not capable of remedy by conditions, or even a deferred commencement consent.

I have determined that the court should refuse consent to Rydal's quarry proposal, on the grounds canvassed above, which may be briefly collected and summarised as follows:

· the DA, in its " final " form within the evidence, as reflected in condition 1A, does not make adequately clear what is proposed, what impacts it will have, and how they will be ameliorated. Worthy concepts, promising projects and good intentions are not sufficient. · the court is not satisfied that there is an economic need to exploit the resource on this site (even if it does " prove up ") at this time. · the court is not satisfied that the resource on this site is of the quality identified by the NSW Department of Mineral Resources as desirable, and/or of the quality asserted on the proponent's behalf. · the court has identified a significant number of specific issues on which it has found the DA to be inadequate for the proper assessment provided for in s 90(1) of the EP&A Act, particularly in areas such as roads, erosion, dust and water management. · apart from details of essential associated infrastructure (such as the necessary conveyor, rail siding and rail loading facilities), which will be at least partly outside portion 126 and must be the subject of separate DAs, one important matter not adequately particularised in respect of portion 126 is its rehabilitation and final form (purported to be covered by conditions 37 and 38). · there will be unacceptable noise, heritage and visual impacts caused by the proposal, even as inadequately particularised. · the shortcomings of the DA cannot be adequately addressed by the imposition of conditions or the granting of a deferred commencement consent.

The court, therefore, makes the following Orders: 1. The appeal in matter 10465 is upheld , and DA 3/98 submitted to Lithgow City Council is determined by refusal of development consent. 2. In consequence of Order 1, the appeal in matter 10961 is dismissed. 3. Matter 40183 is stood over to the Registrar's callover list on Tuesday 30 May 2000 so that arrangements can be made for its further disposition. 4. All exhibits may be returned, except Exhibit C9 , which will remain in court file 10465, and Exhibits A3, A6, A9 and A13 , which are to be returned to court file 40183.

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.

· no provision for haul road access to upper quarry benches;

· no provision for the storage or disposal of quarry by-products;

· an unsuitable route nominated for the overland conveyor; and

· no workable solution presented for the loading of product to trains.

¨ Rehabilitation planning is similarly untenable with plans to progressively rehabilitate quarry bench and floor considered to be totally impractical from a quarry operational point of view.

¨ The commercial viability/justification of the quarry development is based on demonstrably incorrect data in relation to market supply and demand.

111. Other strong submissions in Reed's first report, which surveyed, inter alia, relevant material before the court in Exhibits A1, R1 and C2, include the following paragraphs: 21, 25, 28, 31-33, 45, 50, 55, 56, 58, 66, 74, 76, 87 and 88. I do not wish or need to set them out in full in this judgment, but I should note that in par 98, Mr Reed lists, inter alia, the following relevant conclusions:

¨ the homogeneity and overall quality of the hard rock resource have not been geologically `proven';

¨ the blasting and crushing characteristics of the rock have not been properly assessed;

¨ rock sampling (for laboratory testing) has been selective, not representative;

¨ serious questions raised by the proponents own consultants in relation to rock mineralogy (mica content in particular) have not been answered;

¨ quarry planning is not based on accurate geological modelling and is seriously deficient in terms of its planned (uphill) sequencing;

¨ no provision has been made for the locating of crushing and screening plant or stockpiles during Stage 1 of quarry development;

¨ inadequate area has been allocated for such process plant and stockpiles after Stage 1;

¨ no provision has been made in quarry plans for haul road access to upper quarry benches;

¨ no provision has been made in the documents for the storage or disposal of quarry by-products - waste and overburden;

¨ rehabilitation planning is untenable with plans to progressively rehabilitate quarry bench and floor considered to be totally impractical from a quarry operational point of view;

112. Some of his specific criticisms (e.g. of the proposed conveyor and the lack of detail as to train-loading) I have disregarded, because they fall outside this particular DA and appeal.

113. In his second report, dated November 1999 (Exhibit A17), Reed dealt with the Elta report (Exhibit R3) and W/Clyde's memo of 12 November 1999 (Exhibit R5). He departed from only one conclusion he had drawn in par 98 of his principal report, namely one concerning rock-to-overburden ratios and product yields, in respect of which he concluded (par 7 of Exhibit A17), referring to "Figure 4" of the Elta report:

· there is very little data east or west of the central ridge areas within the proposed quarry area;

· available data indicates an overburden depth of 3.2 to 14m with the average likely to increase with additional drilling away from the central ridge areas;

· the depth of overburden shown in Figure 4 confirms conclusions drawn in my October report relative to quarry planning in particular.

114. Reed's position may be summarised as agreeing that Rydal should act on the recommendations it received from its own experts to rectify the deficiencies in its documentation and planning. So far only the known "best areas" have been drilled and assessed, and the petrological results need to be verified by mechanical testing. The actual quarry site proposed needs to be closely scrutinised.

115. As Reed points out for the second time (Exhibit A17 p1), the proponent was in receipt of recommendations for far more extensive drilling than had actually taken place, and some of the drilling that has in fact taken place, is:

made all the more questionable by the fact that drill holes have [sic] are understood to have been drilled vertically within sub-vertically dipping rock strata ... parallel to original bedding rather than at 90o to it", with the result that they "cannot be considered site representative. At best, they probably represent the geology of a single, 40-50m wide bed of better quality hornfels. Sub-vertically dipping beds located to the east and west of mapped outcrop are far more highly weathered (refer Figure 4) and may comprise substantially inferior material.

Previously tabled laboratory tests were conducted on rock principally sampled from outside the proposed quarry area and test results may not be representative of that area. Despite the above-quoted recommendation by Dr Goldberry, no further representative sampling or laboratory testing appears to have been undertaken. The reservations that I expressed in paragraphs 34-49 of my October report are considered all the more critical in the light of this evidence.

117. Reed's view is that an EIS for a quarry should provide enough information for the proponent to "sign off" on a detailed quarry plan and this one does not, largely, it would seem, because it looks at components of the proposed quarry's operation in isolation from each other - it is necessary to strip overburden at the same time as you remove quarry material, build and maintain roads, attend to environmental and safety matters, and export product for sale. The gradual rehabilitation proposed may well be a desirable objective but further complicates the interaction of functions (e.g. bench areas requiring rehabilitation will be required as roads).

118. Mr Miller submitted that Council was happy with that situation, but Mr Davison was forced to concede this last difficulty, as well as conceding that this quarry would not proceed without further testing, after which a detailed quarry plan would be prepared.

119. MineConsult (Exhibits R16 and A44) in early 1997 prepared a conceptual quarry design in order to make a preliminary estimate of potential quarriable reserves on site. The report says that "further analysis must be undertaken of rock quality". The EIP (at p 3-3) set out some preliminary "design criteria" but adopted estimates of material without doing further work. Rosin prepared further conceptual plans during his evidence (Exhibits R10 and R11). Reed criticised virtually every aspect of the current evidence and concluded that the proposed quarry simply could not be operated. He gave evidence of a similar one which had failed and was abandoned (Exhibit A39).

120. I have concluded that the testing in this case is markedly inferior to that made available to Council in Rhyolite and to the court in Tiocliff.

Environmental Assessment and the Planning Evidence

121. England took overall responsibility for all the work done in preparing the EIS and the various supplements, and he was principal author of the main EIS supplement (Exhibit R1), Rydal's response to McCotter (Exhibit R6), and the first page of Exhibit R7.

122. England is W/Clyde's Principal in the area of environmental planning, and he has 25 years relevant experience in environmental impact assessment and reporting, especially in mining, landfill and remediation projects (see CV in Exhibit R5).

123. The principal witness for the objectors on environmental assessment and general planning issues was McCotter, a well-known expert witness, with twenty years relevant experience. In his affidavit prepared for 40183 (Exhibit A3) McCotter made twenty major criticisms of the alleged inadequacy of the EIS, all of which follow the basic thesis that, without precise details of what is proposed, environmental impacts and amelioration measures cannot be properly assessed.

124. McCotter observed in the first report (Exhibit A3) the absence of sufficient detail for such matters as the quarry haul road, access road, proposed and necessary "buildings", sewerage works, processing plant, bunding, sedimentation ponds, process water ponds, truck arrangements, etc. In his November 1999 supplementary report (Exhibit A4) McCotter acknowledged that Rydal's evidence had now addressed some of the twenty items, but only briefly, vaguely, and/or conceptually, and, in his view, quite inadequately. He expressed concern that the indicative sites of several amelioration proposals were too close to Deadman's Creek.

125. In his oral evidence he also criticised the evolving quarry plan (Exhibit R11) as only conceptual. He acknowledged that quarry planning was an expensive exercise, but submitted that it was necessary for the adequate assessment of environmental impacts.

126. Having regard to the evidence of Rosin, Reed and McCotter, despite the best endeavours of England, I have concluded that the material available to the court fails the test discussed in pars 66-75 above, which the cases have held to be the necessary basis for an approval. In this respect, the proponent has failed to discharge its onus of proof.

127. In fairness to the parties, and for completeness, I turn now to some of the other s 90 considerations.

128. The court had the benefit of evidence on flora and fauna issues from three highly qualified and well-respected experts, two of whom also gave oral evidence. The third witness, Lembit, (Exhibit A13) was highly critical of the flora survey work done for the EIS and thought the quarry site had "high conservation significance". An objector, Davies, also had a particular concern about platypus habitat.

129. Rydal relied on the evidence of Fanning (Exhibits R1, R4, R8, and R9 - CV in Exhibit R4) who found nothing "special" about this site to distinguish it from the resources and habitat around it. He defended his methodology, but acknowledged its significant differences from Denny's. He developed his views after the EIS work was done, surveying the site "in its context". He disputed assertions of "high" conservation value.

130. Dr Denny (Exhibits A10, A11, A12, and A32) conducted what seems to the court (c.f. Mr Miller) to have been a more "empirical" investigation, rather than employ existing "predicted species" lists, and thought Fanning's work inadequate in several (but not all) respects. He saw the site as the linchpin of a wildlife corridor, with high value as habitat for a range of fauna, some of which might normally not have been expected there.

131. Overall, despite Mr Larkin's assertion that Fanning is the "odd man out" (as DLWC, in its days as CALM, Denny and Lembit all rate the site as having "high" conservation values), I have not been convinced of any special issues of flora and fauna not capable of being dealt with adequately by appropriate conditions.

132. England (in Exhibit R7) described Rydal's proposal for progressive site rehabilitation as "both feasible and desirable", yet the EIS is silent on final land formation, the final quarry void, final drainage patterns, and final revegetation plans (McCotter, Exhibit A3).

133. On this subject I note again Reed's views, and Mr Davison's concession, regarding the practical difficulties of gradual rehabilitation in these circumstances (see pars 117-118 above).

134. On 11 November 1997, DLWC (Orange) stipulated that Rydal should produce an integrated soil and water management plan, including temporary and permanent sediment control structures (especially on internal access and haul roads). That department's guidelines (in the name of CALM) are partly in evidence as Exhibits A37 and A41, as is Council's notation of DLWC's reservations, at a meeting between Council officers, DLWC and England, on 1 June 1998. (See Exhibit C1 fol 350 and Exhibit C2 fols.23-25).

135. At the hearing, Rydal relied on the evidence of Kielniacz (see CV in Exhibit R5), an engineer of 10 years standing, employed by W/Clyde, whose practice has relatively recently moved into water/soil issues. Kielniacz was the author of relevant material in Exhibits R2 and R7. He conceded that there were major difficulties with, but that he had not visited, the site, and that designs (including Exhibit R11) were preliminary/indicative/conceptual only. Rydal would move away from the EIS and follow the CALM guidelines and DLWC requirements.

136. On the other hand, the objectors relied on O'Loughlin, an expert of 40 years' experience who visited the site (see CV at Annexure "A" of Exhibit A6). His affidavit of December 1998 in 40183 (Exhibit A6) was followed up by a further report (Exhibit A7), in both of which he made major criticisms of the EIS - inadequate allowance for storms, inadequate information on rock permeability, sediment control and bunding, and inadequate examination of potential depression of the water table.

137. In his oral evidence he added a particular concern that if Reed is correct about mica-type material in the product of the quarry, such "fines" will complicate sediment control and pollute waters, threatening aquatic flora and fauna. He noted that "fines" will also come from the running of traffic on unsealed roads. Silt fences alone would not be an appropriate safeguard, and the EIS did not address the "fines" problem.

138. O'Loughlin identified the subject site as "Mt Walker soil landscape", and, as such, the EIS may have understated its erodibility. Kielniacz rated the site as currently "low to moderate" in this respect, and likely to move only to "moderate" during quarry operations. He said the site would never be so exposed as to be rated "high" on an erodibility scale.

139. O'Loughlin also identified the quality of surface runoff water generally as a major problem inadequately addressed.

140. Corkery's report was annexed to O'Loughlin's affidavit (Exhibit A6), presumably at least partly as a result of this comment (p8 sec 6.0):

It is desirable that as many safeguards as possible be identified early in the planning stages of the project to ensure that they are properly incorporated throughout the project planning and not as an afterthought.

141. O'Loughlin is certainly of the view that it is appropriate, indeed crucial, that erosion controls and drainage systems are clearly in place before any major surface disturbance.

142. England gave some evidence in response to O'Loughlin (Exhibit R12) and defended the adequacy of the EIS.

143. Mr Davison submitted that Rydal's bund proposals, as presented to the court (e.g. Exhibit R11), would ensure that all sediment would be diverted into, and contained upon/within, the working quarry site, i.e. away from creeks.

144. Mr Davison also asserted that Rydal proposed that all roads would be kept watered, but nowhere in the evidence can I see any assessment of the necessary water traffic or its impacts.

145. I have concluded, from all the evidence, that there is no real room for serious concern about the impact of vibration from the proposed quarry. There will be explosions which will cause vibration, but there is no evidence that this poses any threat to any residence, heritage item (such as the historic railway viaducts), or undertaking (e.g. Fish River Water Supply pipelines).

146. The serious conflict of evidence and opinion as between the experts on noise, respectively relied upon by Rydal and the objectors, really counts for little in the end analysis, because Council proposed and Rydal accepted an absolute noise limitation condition (Exhibit C8, as incorporated in the latest version of Exhibit C9 - condition 30). Mr Davison said simply: if Rydal fails to meet that target the quarry will not operate, but, anyway, our proposed monitoring may well lead to more screening.

147. The objectors say that the DA should be refused in any event, as failure to meet such a condition satisfactorily would result in the quarry being closed and rehabilitation terminating incomplete. The objectors rely on the submission by Day that the noise analyses presented by Rydal were the most superficial he had seen. In any event, the objectors say that the final screening proposals should be available for assessment now.

148. Such criticisms from Day must be given some weight. He has worked full-time in acoustics since 1971 and demonstrated to the court that he has had much quarry experience. His evidence can be found in Exhibits A8, A15 and A43.

149. Rydal relies on the evidence of Clark, who has had twelve years as an environmental consultant and has turned his focus to a specialty in noise only in recent times. Clark was the author of the noise sections of the EIS, and Exhibits R5 and R7. His work was based on a "point source" some 2-3 metres above the quarry ground level contour. He presented this as the worse-case scenario, but acknowledged in cross-examination that worse cases were possible.

150. In the evidence there is substantial debate about the specifications, number and inter-relationship of the noise-causing equipment which will be utilised in this quarry, and about the duration of the various noise-generating activities involved. In this context it must be recalled that this hearing does not cover the other related and potentially noisy operations, involving the proposed conveyor and the rail operations (both of which will be closer to the nearest affected residences).

151. Clark said simplistically that Rydal will ensure that it uses quieter equipment and reduces all noise levels by careful siting and good screening. He asserted that a 35dBA absolute limit, from the site as a whole, is achievable with care and effort; Day says that from his experience that is an impossible target, as there will be twenty significant noise sources involved in the operation of this quarry, whereas the EIS assessed only the noise generated by a single bulldozer.

152. Day, on the other hand, picked up on Clark's concession that his "worse case" was not "the worst case" and presented to the court the following scenario (Exhibit A43, p2, see 1.3):

Assuming that with careful selection of equipment and no limit on high barriers, he was to achieve the L10 limit of 35 dBA from one major item of plant (250 kW diesel engine powered), we submit the following even worse case scenarios.

Hypothetical `Worse Case' (250 kW diesel engine) scenario 35 dBA

With two dump trucks operating together, add 3 dBA 38 dBA

With a hydraulic rock breaker operating for part of the time also,

With crushing and screening plant operating for most of the

With the conveyor operating for most of the time, add 1dBA 42 dBA

With open steel railway trucks being loaded by a radial stacker,

With noise reflected inside the amphitheatre-like quarry,

With light winds from the West for say 25% of the time,

153. Some of the underpinning estimates of this analysis (e.g. noise reflection, impact of light winds from the west) were acknowledged as most conservative by Day in his oral evidence, and I found his evidence far more convincing than Clark's.

154. What is quite clear from the evidence is that the prevailing winds affecting this site (see limited data at pp 8-1 and 8-7 of Exhibit A1 Vol 1) will carry noise towards the properties known as Mara Park, Fairseat, Brickyard and Lorjon, and that extensive and substantial noise barriers would need to be located very close to the noise sources, as a following breeze diffracts noise over barriers.

155. The noise from ancillary road transportation has simply not yet been addressed, but I accept Mr Davison's contention that the haul road is quite likely to be effectively contained, and possibly also adequately screened, within the quarry operations area.

156. However, I have concluded that, overall, the noise impacts of the proposal on those nominated residences are likely to be quite unacceptable if they are not kept to 5dBA above background, which Day has persuasively argued is virtually impossible.

157. These two issues are canvassed together because they were the joint subjects of Lamb's evidence, and that evidence postulates an inextricable linkage between them in this case.

158. Council submitted that some visual impact is inevitable, but in this case is insufficient to ground a refusal of consent. England said on Rydal's behalf that visual impact had never been denied but it was not significant.

159. The arguments in favour of approval submit that the "views into the site" are few in number and site specific, and that all are restricted to some degree by distance, topography, bunding and vegetation, to the extent that quarrying activity will be seen only as it reaches the ridge top, but then only from Mara Park to the east, and from the vicinity of Sodwalls Inn to the south, (as obstructed by bunding and vegetation). (I note in the context of such submissions that the visual impact of the use of Bonaventure Road for access and egress has not been assessed, nor have relevant measures for its amelioration).

160. The court accepts Dr Lamb's credentials to give expert evidence on both areas of concern. He comes from a background in botany, but he lectures at university level in architecture and heritage, and frequently gives evidence in this court on visual impact issues (see his CV attached to Exhibit A14).

161. Rydal and W/Clyde present a report by Navin Officer dated December 1997 as their "Archaeological and Heritage Survey" (Exhibit A1 Vol 2). In essence it focussed on archaeology and aboriginal matters, but it identified three items of what might be called "quarry heritage" (one in the centre of Portion 62, one on the 126/62 boundary, and the third just east of the eastern edge of the quarry site within portion 126). Nothing is noted from outside those immediate areas.

162. On the other hand Lamb (Exhibit A14) surveyed the history of the wider district at some length, identifying surviving heritage items regarding landscape, railways, roads and inns. No landscape heritage values are acknowledged at all in the EIS, or anywhere else in Rydal's case - Mr Davison said the only items of heritage value are in the township of Rydal, but as Lamb says, no assessment was made by Rydal of the heritage importance of removing the upper part of the ridge on the site from an important district landscape. In his critique of the EIS (see Exhibit A14, p11) Lamb notes:

The extracted area would be up to 500m in width and would involve the creation of a new cliff-like feature up to 85m in height ... [which] would be prominent at any distance [and will be] vastly larger than evidence of similar activities in the past.

163. Dr Lamb goes on (at p24) to identify as an outcome of the proposed quarry "extensive and permanent scarring of the ridge and hill slope".

164. Clearly, visual impact must be assessed on a broader basis than simply checking on the likely view from a homesite, no matter how far away.

165. As Lamb observes, visual impacts are not entirely objective - even though old extraction sites are "usually found in rural landscapes and, though not scenic, ... [are] part of their legitimate character", they tend to provoke emotional reactions in viewers.

166. Dr Lamb's "weighting" methodology is explained and applied in an appendix to his report.

167. His conclusion is that the visual impacts of this proposal are "moderate to high", because the quarry will be "more prominent than other elements in the scene, because of its character, location and the combination of these factors", and will have "impacts on views in an area of established heritage significance", deriving such value due "largely to the visual evidence of former landscape patterns, meanings and practices". (Exhibit A14 p23).

The assessment concluded that there were many locations affected by significant impacts. Viewers from areas on roads, and rural properties to the south, south east and east of the site have the potential to experience significant impacts, depending on the extent of visibility of the site. High impacts such as those predicted for the properties and roads above require consideration of measures to reduce these to an acceptable level.

Even if it were assumed that the ameliorative measures which are proposed would be effective, there would be some residual impacts of the development which would remain. The most significant effects would be the change of the site from a wooded natural hillside and ridge to a steep, stepped, rocky, cliff like face. The other most marked residual impact would be the change to the topography of the upper part of the site to a more steeply concave one. Because it faces south, the new face of the ridge would be more often in shade than is presently the case and this would accentuate the change in its form. There would be a definite contrast with the remaining part of the landform and with the characteristic form of the regional landmark, Mount Lambie.

In my opinion, no only the activity, but the final appearance envisaged, is not in character with the current landscape and its established heritage and scenic values and is inappropriate. Therefore, the whole approach to visual impact amelioration for the operation is also inappropriate. It amounts to cosmetics, aimed at slightly reducing the visibility of the actual working operation, when the operation itself and its location on a visible slope and ridge crest is questionable in the scenic context.

169. I have quoted at some length from Lamb's evidence because I found it compelling and persuasive in those respects, and that part of it which dealt with heritage matters was virtually ignored in cross-examination. (Mr Davison submitted that the court should consider Lamb's evidence on heritage matters only in those respects where there is overlap with visual). It, therefore, stands uncontradicted, and makes out a good ground for refusal of consent.

170. However, I note that when it came to the location and dimensions of the quarry site in the landscape, England was the better witness, casting considerable doubt on the specific viewpoint assertions of Lamb's evidence as to precise visual impacts of actual quarry operations at those points. (Exhibits A14 and A42 c.f. R13, R14, R17 and R18).

171. I have come to the conclusion that there will be substantial visual impact from quarry operations only at Mara Park, and probably in no circumstances at Sodwalls Inn (see Exhibit C1 fol 261). I would not refuse consent on that basis.

172. As I have before me no evidence of the visual impacts of the use of Bonaventure Road I can come to no conclusion in that regard. However, I note also that some objectors argued that widening and realigning that road to any extent would also have an unacceptable impact on its heritage.

173. Rydal's agreement to comprehensive conditions (Exhibit C9) signifies its bona fides in attempting to deal with many actual and potential impacts of the proposed quarry.

174. Those agreed conditions make clear that any consent granted by the court is limited to quarry works on portion 126 (condition 1), and will not cover the conveyor system (condition 35(a)), railway works (conditions 2 and 25), roadworks (conditions 19 and 23), or "buildings, structures or effluent disposal systems" (conditions 31-34), all of which will require their own DAs.

175. They lay down strict regimes for use of rail (condition 2), use of roads (conditions 15, 19-23, 25-27, and 34), blasting (conditions 7, and 16-18), vegetation matters (conditions 8-14), and environmental management (conditions 37-38), and an absolute noise limitation of 5dBA above background (condition 30).

176. I would be content to impose most of the conditions in Exhibit C9 were I minded to grant consent. Some are completely acceptable ways of dealing with issues raised in the proceedings, such as electricity supply (condition 5), bonds and s 94 contributions (conditions 28 and 29), aboriginal artefacts (condition 24), fire requirements (condition 6), EPA licences (condition 4), and community consultation (condition 36).

177. However, Mr Larkin urged the court to measure several of the agreed conditions against the well-established principles in Mison & Ors v Randwick Municipal Council (1991) 23 NSWLR 734, 73 LGERA 349, to the effect that important aspects of a development, which provide scope for its fundamental alteration, cannot be left free of doubt, as any such consent is not a "final determination" of the application at hand.

178. To head off detailed submissions on this Mison point, Mr Davison proposed a s 91AA condition in the following terms (Exhibit R21):

This consent shall not operate until the Applicant satisfies the consent authority that the following tests have been carried out to prove the resource:

1. A diamond core drilling program to a depth of 900 metres AHD.

3. Trial blast, bulk sampling and trial crushing.

5. Close centred percussion drilling to define overburden and weathered rock profile.

179. Council did not support that proposed condition. If there were to be a deferred commencement consent, I would include several further "hurdles" for this project, but I am mindful of the cautionary comments of Talbot J in Remath Investments (No.6) Pty Ltd v Botany City Council (No.2), 11 December 1996.

180. In any event, a cursory examination of the matters covered in draft conditions such as 3, and 37-39 calls up Mison considerations, and Rydal is not suggesting that any of those matters should be dealt with by way of a deferred commencement consent.

181. Conditions must be clear on their face and not simply conceptual in nature. See Stein J in Oshlack v Iron Gates Pty Ltd & Anor, 40152 if 1996, 6 March 1997.

182. Mr Larkin submitted that the "doubtful" nature of some of the agreed conditions showed that the court should refuse the application. However, in order to refuse it, I believe that the court has a duty to go further, and analyse all the evidence, which is what I have endeavoured to do in this judgment.

183. Amongst that evidence were suggestions of various additional conditions which could be imposed, including some suggested by government agencies which were generally supportive of the project, but in view of the conclusion I have reached on the merits, I do not need to deal with them in detail.

184. The shortcomings I have identified in this application are, in my view, not capable of remedy by conditions, or even a deferred commencement consent.

185. I have determined that the court should refuse consent to Rydal's quarry proposal, on the grounds canvassed above, which may be briefly collected and summarised as follows:

· the DA, in its "final" form within the evidence, as reflected in condition 1A, does not make adequately clear what is proposed, what impacts it will have, and how they will be ameliorated. Worthy concepts, promising projects and good intentions are not sufficient.

· the court is not satisfied that there is an economic need to exploit the resource on this site (even if it does "prove up") at this time.

· the court is not satisfied that the resource on this site is of the quality identified by the NSW Department of Mineral Resources as desirable, and/or of the quality asserted on the proponent's behalf.

· the court has identified a significant number of specific issues on which it has found the DA to be inadequate for the proper assessment provided for in s 90(1) of the EP&A Act, particularly in areas such as roads, erosion, dust and water management.

· apart from details of essential associated infrastructure (such as the necessary conveyor, rail siding and rail loading facilities), which will be at least partly outside portion 126 and must be the subject of separate DAs, one important matter not adequately particularised in respect of portion 126 is its rehabilitation and final form (purported to be covered by conditions 37 and 38).

· there will be unacceptable noise, heritage and visual impacts caused by the proposal, even as inadequately particularised.

· the shortcomings of the DA cannot be adequately addressed by the imposition of conditions or the granting of a deferred commencement consent.

186. The court, therefore, makes the following Orders:

1. The appeal in matter 10465 is upheld, and DA 3/98 submitted to Lithgow City Council is determined by refusal of development consent.

2. In consequence of Order 1, the appeal in matter 10961 is dismissed.

3. Matter 40183 is stood over to the Registrar's callover list on Tuesday 30 May 2000 so that arrangements can be made for its further disposition.

4. All exhibits may be returned, except Exhibit C9, which will remain in court file 10465, and Exhibits A3, A6, A9 and A13, which are to be returned to court file 40183.