(a) the location and dimensions of all buffer areas;

(b) an increase to the height of the existing bund, which is generally to the north and east of the area proposed to be extracted, by a height of 1 metre;

(c) the location, dimensions and mode of construction of any haul road to be used to transfer gravel from the area to be extracted to the place where the gravel will be stockpiled for processing.

2 The development and use permitted by this permit, as shown on the endorsed plans, must not be altered or modified except with the prior written consent of the responsible authority.

3 The use and development of the subject land must not commence until a Work Authority is granted in accordance with the requirements of the Extractive Industries Development Act 1995.

4 Subject to this permit, the use and development of the subject land must at all times be in accordance with the Work Authority, including the approved work plan, issued pursuant to the Extractive Industries Development Act 1995.

5 Prior to the commencement of the use and development, an Environment Management Plan ("EMP") must be submitted to and approved by the responsible authority. When approved, the EMP will be endorsed and will then form part of the permit. The EMP must include management techniques for preventing environmental degradation and minimising the amenity impact of the use and development. In particular, the EMP must address the conditions of this permit and must specifically include:

(a) management methods proposed to be adopted to prevent degradation of the subject land;

(c) a contact phone number for the person responsible for the management of the proposed use and development, which number must be available on a 24 hour basis;

(d) a description of the plant and equipment to be operated in carrying out the next campaign of extracting gravel;

(e) arrangements for the stockpiling and processing of extracted gravel, particularly that portion of the gravel consisting of capstone;

(f) arrangements for notifying nearby residents of forthcoming campaign dates to ensure that residents have proper notice of extraction operations;

(g) proposals for maintaining a water tanker on or available to the site during extraction and/or at other times;

(h) management of the subject land during inter-campaign periods.

6 The EMP may be amended, from time to time, with the approval of the responsible authority.

7 The use and development of the subject land must comply with the provisions of the EMP.

8 Crown Allotment 240P must not be used for any purpose other than as part of a buffer area.

9 No vegetation may be removed from within the designated buffer areas shown on the endorsed plan.

10 All works associated with the use and development allowed by this permit must be conducted so as to avoid any disturbance to the adjacent White Hills Chinese Diggings Heritage Site.

11 The extraction of gravel pursuant to this permit can only be undertaken in four operations, with each operation to be of a maximum of four weeks duration. Save for any operation in the year 2004, each operation must only occur during the months of April, May, June, July, August or September in any year. The final operation must be undertaken prior to the end of September 2007. There may be a campaign in the year 2004 in the months of June, July, August, September or October. Works associated with site preparation, rehabilitation and implementing the approved EMP or other conditions of the permit are not restricted by the requirements of this condition.

12 Haulage of the gravel material extracted pursuant to the permit must be via one of the following routes, to the satisfaction of the responsible authority:

(a) the route identified on the application plans; or

(b) an alternative route, generally identified in the statement of evidence of Mr Brett Bahen, which passes from the gravel extraction pit to Crown Allotment 240B and thence to the processing plant.

13 Haulage of the gravel material extracted pursuant to the permit must not be via Heywood Street.

14 The construction of roads for the haulage of gravel material must be undertaken in a manner to ensure that vegetation removal and soil disturbance is kept to the minimum amount practicable.

15 Prior to the commencement of the use and development allowed by the permit, the subject land must be securely fenced to the satisfaction of the responsible authority.

16 Surface water must be managed in accordance with an approved drainage plan, which must be prepared before the commencement of the development to the satisfaction of the responsible authority. In particular, surface water must be diverted away from soil and sand heaps in order that the worksite does not contribute to increased groundwater recharge. Further, stormwater runoff and sediment must be prevented from entering the White Hills water supply channel.

17 During construction of works associated with the development, the occupier must employ and provide erosion protection methods and silt trap techniques to reduce dust and sediment being emitted or transported from the subject land.

18 Any waste water, effluent or polluted drainage must not be allowed to discharge beyond the boundaries of the subject land or directly or indirectly into any watercourse.

19 Any water dams must be designed with a low permeability base, to reduce groundwater recharge, to the satisfaction of the responsible authority.

20 Following completion of each campaign (other than the final campaign) the area which has been excavated must be temporarily rehabilitated, and subsequently maintained, to the satisfaction of the responsible authority. Such temporary rehabilitation may include cross-ripping, battering of steep slopes and the sowing of local native grasses.

21 Dust suppression measures must be employed, with the objective of ensuring that there are no visible emissions of dust beyond the boundaries of the subject land, to the satisfaction of the responsible authority.

22 The use must not, to the satisfaction of the responsible authority, adversely affect the amenity of the locality by reason of the processes carried on, the transportation of materials to or from the subject land, the appearance of any works or materials, the emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit, or oil, the presence of vermin or otherwise.

23 Except with the prior written consent of the responsible authority, the use must not operate outside the hours of 7:30am to 5:30pm Monday to Friday (with no operation being permitted on Victorian public holidays).

24 The subject land must be kept neat and tidy at all times to the satisfaction of the responsible authority.

25 Emissions from the site must comply with relevant State Environment Protection Policies. In particular, noise emitted from the subject land must comply with State Environment Protection Policy-N1, notwithstanding that this policy may not apply to the site by the operation of the general law of the State.

26 In the event of mud, crushed rock or other debris being carried on to public roads or footpaths from the subject land, appropriate measures must be implemented to minimise the problem to the satisfaction of the responsible authority.

27 The subject land must not be used for the storage of fuel or dangerous, hazardous or explosive goods, materials or substances, except with the prior written consent to the responsible authority.

28 The extraction of gravel from the site must be undertaken without blasting.

29 Prior to 18 months before the proposed date for the completion of final extraction, the occupier must submit a final rehabilitation plan to the responsible authority. In the event that no such plan is prepared by the occupier of the subject land, the responsible authority may prepare and approve its own final rehabilitation plan.

30 Any final rehabilitation plan prepared for the subject land must not be based upon the future use of the subject land for the purposes of landfill.

31 Following the completion of final extraction, or the expiry of this permit (whichever is sooner), the occupier must implement the approved rehabilitation plan to the satisfaction of the responsible authority.

32 Prior to the commencement of extraction, the then occupier of the subject land must enter into an agreement with the responsible authority pursuant to section 173 of the Planning and Environment Act 1987 in which it guarantees to pay the cost of the rehabilitation of the subject land in accordance with the final rehabilitation plan, even if it is no longer the occupier of the land, in the event that the requirements of condition 31 are not carried out. It is not a requirement of this condition that the agreement be registered on title.

(a) the use and development does not start before 1 September 2005;

(c) the work authority issued under the Extractive Industries Act 1995 expires or is cancelled.

Ms Astrid Di Carlo, of Russell Kennedy, solicitors and Mr Tyson Sutton of the responsible authority

Mr Peter Vanderfeen (who also appeared on behalf of the objectors other than Mr and Mrs Delves and Ms Tripp)

1 The matter before the tribunal is an application to review a decision of the City of Greater Bendigo ("the council") to refuse a permit pursuant to the Greater Bendigo Planning Scheme ("the scheme") for the use and development of Crown Allotments 240M, 240N and 240P, Parish of Sandhurst ("the subject land") for the purpose of extraction of tertiary gravel. The subject land is Crown land. The applicant for review, Malcolm McClure Pty Ltd ("the applicant") holds a licence to use the subject land for the purpose of gravel extraction. (This licence expires on 1 April 2005, but the tribunal proceeds on the basis that it is likely that the licence will be renewed.)

2 The subject land is located in an area north-east of the centre of Bendigo which is known as the White Hills district. This area was subject to extensive gold mining in the 19th century. In more recent times it has been used for extractive industry. One former pit has been subsequently used as a putrescible landfill. Another pit is currently being used to extract clay for the purpose of brick making. A portion of the land, about 500 metres west of the subject land, is used as a sand processing plant by the applicant.

3 The permit application was lodged on 26 February 2003 and was subsequently advertised and referred to certain other authorities. Full details of these matters are set out in the submission made by the council to the tribunal. Objections were received to the grant of a permit from 14 persons. Generally these persons reside in a rural/residential development to the east of the subject land.

4 On 17 November 2003 the council resolved to refuse the permit application on the following grounds:

1 The proposed use is contrary to clear commitment made to residents that there would be strict time limitations on extractive industry activity on the subject site and the operator was aware of the situation.

2 The proposed use will result in an unreasonable amount of detriment to the amenity of the surrounding area.

3 The proposed use is incompatible with the existing development of adjoining land.

4 The proposal will compromise the proposed Bendigo East Link Road.

5 Shortly prior to the hearing it became apparent that there were some deficiencies in the documentation in relation to the permit application and the advertising of it. Some of the application, referral and notice documents failed to correctly describe the crown allotments which were the subject of the application. Having heard from the parties, it was clear to me that the shortcomings were technical and did not cause any person to suffer any real disadvantage. Thus I exercise the powers available to me to amend the application to correctly identify the subject land; and to disregard any non-compliance with relevant statutory provisions in relation to the notification of the application.

6 The subject land is contained within a Public Use Zone 7 pursuant to the scheme. There are no overlays that affect the land. Land zoned Public Use Zone 7 may be used for extractive industry, without a permit, if the use is to be carried out by or on behalf of the public land manager. As the use will be carried out by a private company, it requires a permit pursuant to the scheme. In its submission to the tribunal the council set out a number of relevant policy provisions which provide some guidance in relation to the exercise of the discretion available to the tribunal. In particular the tribunal was referred to clause 52.09 of the scheme, which relates to extractive industry. This clause requires consideration of issues such as industrial emissions beyond the boundaries of the subject land, the effect of traffic, noise, blasting, dust and vibration on amenity, the impact of the extractive industry operations on sites of cultural and historic significance, the ability to rehabilitate the land and the impact of any social dislocation on amenity of surrounding areas.

7 The hearing was held at Bendigo, over the course of two days. On the day prior to the hearing I briefly inspected the subject land in order to be familiar with it. On the second day of the hearing a further inspection was held, in the company of the parties, in which I walked over substantial portions of the subject land. On this occasion I also made observations of the existing sand processing plant operated by the applicant nearby.

8 The tribunal considered a detailed submission from the responsible authority, in support of its grounds of refusal, and submissions from the objectors. Generally the objectors supported the decision of the council for the same reasons advanced by the council. The applicant's case was largely put through expert witnesses, including a town planner, a civil engineer and an acoustic consultant.

9 Before turning to the grounds of refusal, I should note that there is an economic advantage to the community in winning gravel from convenient sites, close to processing facilities, provided this can be done in a manner that is appropriate having regard to planning, environmental and amenity considerations. This is especially so when a licence exists from the Crown for this purpose and the land is appropriately zoned.

10 In dealing with the ground of refusal based upon commitments that have been made to residents in the past, it is necessary to set out a little planning history.

11 As previously indicated, over 100 years ago the subject land was mined, possibly by Chinese diggers. The land immediately to the west of the subject land has been identified as being of historical significance by reason of its association with Chinese diggings. One can observe a number of mine shafts, apparently dug by hand implements, throughout the subject land. Indeed, some of these mine shafts might be thought to be dangerous.

12 In 1988 the Administrative Appeals Tribunal of Victoria ("the AAT") considered two appeals concerning the subject land. Both appeals were the consequence of a proposal by the then council, the Shire of Strathfieldsaye, to extract 100,000 cubic metres of gravel from the subject land in six campaigns, each of six weeks, and then to fill the void with putrescible waste. It would appear that the proposal was partly motivated by the commercial value in extracting the gravel. However it would also appear from the decision of the AAT, and in this respect I also rely upon my own experience, that the predominant motive was to provide a void to be subsequently used as a putrescible landfill. The initial permit application had been dealt with by the Minister for Planning and Environment. One of the conditions in relation to the tip site was that it be set back a minimum distance of 100 metres from any waterway. There is a waterway, generally following the eastern boundary of the subject land, which would have meant that a significant portion of the area of gravel extraction could not have been used for putrescible landfill. The other matter before the AAT was an appeal by objectors, including objectors to the current application, against the Minister's decision to grant any form of permit. The AAT upheld the objectors' appeal and disallowed the council's appeal; and, consequently, directed that no permit issue. A close reading of the reasons for the AAT decision reveals that the council's appeal was rejected because the 100 metres setback requirement was a legal requirement of State Environment Protection Policy - Waters of Victoria; and, consequently, it could not succeed as a matter of law. Having determined this, the tribunal considered that to grant a permit would only be a very short term palliative. Yet, notwithstanding the very short term advantage, it concluded that the permit would create a real detriment to the amenity of residential zones to the east. The detriment to amenity which the tribunal identified was detriment to amenity by reason of a tip: including litter problems and the odour of putrescible wastes. The tribunal concluded by stating:

Playing the obvious detriment of having a tip as a neighbour against the community need for the site, the tribunal holds on planning grounds that the tip should not be sited on the appeal site.

The decision to reject the proposal does not seem to have been based upon the notion that the extraction of gravel, as such, should be rejected.

13 In 1994 a detailed application was prepared on behalf of Rocla Quarry Products ("Rocla") in relation to the extraction of gravel from the subject land. Indeed, the current application is based upon the same geological information and extraction plans. I am informed that there was substantial resident consultation in relation to this permit application. It would appear that on 17 June 1994 the then council decided to grant a permit (Permit 118.94). On that date it also passed the following resolution:

Council acknowledges that the amenity of the residents on the west side of Rohs Road abutting the land subject to Permit 118.94 should be protected on the completion of this permit. Therefore, council will not issue any permits for the use of this site on completion of Permit 118.94, without having regard to the amenity of those residents, nor allow any additional use of the site that would be detrimental to the adjoining land zoned as Rural Residential.

14 Over the next five years no gravel extraction was undertaken, although the area was cleared and a small bund wall may have been constructed in a anticipation of future extraction. In 1999, the 1994 permit expired.

15 In 1999 a new permit application was submitted to the new council for gravel extraction. Apparently there were further objections to this permit, but the council decided to grant a permit subject to a number of conditions.

16 The 1999 permit did not contain any specific provision in relation to the expiry of the permit. However, by reason of the provisions of section 68 of the Planning and Environment Act 1987, the permit was to expire if the use was not commenced within two years of the date of the permit.

17 In fact extraction did not commence within this time; and the permit expired. In the meantime, the applicant had been negotiating with Rocla to buy its interest in the land and then extract gravel from it. This process took several years to finalise, involving as it did a transfer of the Crown licence and steps in relation to obtaining a Works Authority under the Extractive Industries Development Act. The applicant told the tribunal that it did not appreciate that the 1999 permit had expired until early 2003, particularly as there was a permit condition indicating that the permit would expire when a works authority for the land expired.

18 In the light of the historic details set out above, I do not believe the first ground of refusal is made out. The only matter which might be thought to support the council's first ground of refusal is the resolution of the then council on 17 June 1994. But this resolution ought not be understood as being a resolution concerning the extraction of gravel. Rather, as I interpret it, it is a resolution about the use of the site after gravel extraction is completed. I have no doubt that at that time, indeed at all relevant times, residents living nearby to the subject land have been vitally concerned about whether or not it be used as a putrescible landfill. Notwithstanding the AAT's rejection of such a proposal in 1988, one can understand why residents would be still concerned about this in 1994. It seems to me that the 1994 resolution was designed to assuage those concerns; it was not directed at the time within which gravel would be extracted from the land.

19 It is true that the 1994 permit and (to a lesser extent) the 1999 permit involved time limits upon the extraction of gravel. However, by failing to activate the permit and allowing it to expire, the licensee of the Crown land has not elongated the time during which nearby residents would suffer from diminished amenity by reason of extraction operations. All that has occurred is that any such diminished amenity has been deferred. Indeed, by reason of more powerful machinery and the availability of a processing plant nearby the total time during which extraction will be carried out may possibly be less than would have been the case had it occurred following the issue of the 1994 permit.

20 I now propose to deal with the fourth ground of refusal, which is that the proposal will compromise the Bendigo East Link Road. In February 2003 the council exhibited a report prepared by Maunsell Australia Pty Ltd entitled "East Bendigo Local Structure Plan". Apparently an earlier version of this plan is a reference document to clause 21.07 of the scheme. Council has prepared Amendment C51 to the scheme which will replace the existing local structure plan as a reference document. Although this amendment is still at an early stage, it is a relevant consideration, albeit with reduced weight by reason of its embryonic nature.

21 The Local Structure Plan proposes a link road between the Midland Highway and the McIvor Highway. It is apparent that in preparing the Local Structure Plan the consultants considered a number of options, before finally recommending an option which passes through the subject land. Interestingly, this Local Structure Plan identifies the subject land as "Gravel Reserve/Future Industrial (Rezoning from Public Use)".

22 The location of the link road, also known as the "outer box" road, is obviously schematic. It is apparent that no vertical or horizontal alignments have been considered, let alone determined upon. Further, based upon matters put before the tribunal at the hearing, it is quite improbable that the link road will be built within the next five years; if it is to be built, it may even be more then ten years hence.

23 As part of the internal referrals in relation to the permit application the council's traffic engineering department considered the impact of the gravel extraction upon the proposed link road. Mr Jim Mensforth, of the traffic engineering department, advised that the sand extraction down to bedrock does not appear to compromise council's road strategy provided that the finished level does not result in water holding; that is, that the site consistently falls towards the north. He also advised that an appropriate alignment be kept clear of any tree revegetation as part of any rehabilitation works.

24 It is clear that the proposed development and use can comply with Mr Mensforth's provisos. It is also clear that the time frame for the extraction of gravel which would be permitted by a permit granted in 2004 would not impair the construction of the link road, given its probable date of commencement. This is enough to dispose of the fourth ground of refusal. However I might add that I am suspicious of any ground of refusal based upon a proposition that land will be required for a road in the absence of any Public Acquisition Overlay (which would operate as a reservation of the land). A Public Acquisition Overlay does not commit a road authority to acquire land; but it potentially makes it responsible to pay compensation to the owners of land who are detrimentally affected by the proposal which may hang, like a dark shadow, over their land.

Grounds 2 and 3 - Amenity and Compatibility Issues

25 The second ground of refusal raises amenity issues. The third ground of refusal deals with the supposed incompatibility of an extractive industry use nearby to the existing rural residential use. It is convenient to deal with the two grounds together.

26 The principal concerns raised by the objectors and the council related to noise and dust. It is stating the obvious that any extractive industry operation will generate some dust and some noise, which might be detrimental to neighbouring properties. Yet it is important to our economy and our society that we have extractive industries. Hence it is necessary to achieve an appropriate balance in particular situations.

27 In the present situation the land has been licensed by the Crown for gravel extraction. It is located in an area which has been, and is still being, used for extractive industry. It is identified in the structure plan for the area as a gravel reserve. Moreover the subject land is located, very conveniently, nearby to an existing sand processing plant.

28 Turning to the land adjacent to the proposed area of gravel extraction, there are no immediate neighbouring properties to the west or south which are likely to be affected. To the north, there are few residential properties. And to the east, where the rural residential uses tend to be on lots of about one hectare, there is already some industrial influences at work. For example, one of the properties to the east of the subject land appears to be used (in addition to a dwelling) for the purpose of truck parking. Although it is important that those living in a rural residential environment have their amenity reasonably protected, the level of protection to be achieved will not generally be the equivalent to the level required for those living in traditional urban environments.

29 The matters canvassed in the previous paragraphs are obviously relevant to assessing what is reasonable in relation to the amenity impacts of noise and dust. But there is another factor, peculiar to this case, which is even more critical. This is that the proposed extraction will take place during four campaign periods, each of four weeks, all of which will occur during the wetter periods of the year. Thus the total time which will be spent extracting gravel, over a four year period, will be 16 weeks. This is not dissimilar to the time that might be spent constructing a building. The combination of the limited time of such extraction activities, and the period of the year during which they will occur, is obviously extremely important in influencing, if not determining, the acceptability of amenity impacts.

30 It is also relevant that the haulage of the extracted gravel is to occur using scrapers, rather than trucks, and will be via a route which is away from neighbouring residential properties. Often the major amenity impact of an extractive industry operation is in the disturbance caused by the haulage of materials; in the present case this will not cause any substantial impact.

31 Further, buffers are to be provided to the area of extraction. These buffers will generally be 50 metres wide to the north and east of the site. As part of the proposal the existing 1 metre high bund will be increased to 2 metres high. Land to the east of the bund is already substantially vegetated, which should also be of benefit in relation to dust.

32 In addition to the existence of buffers, there are numerous other operating conditions which have been proposed, and which will be imposed upon any permit, designed to address concerns about noise and dust. These conditions will include the preparation of an environment management plan, dust suppression measures, limited operating hours and a ban on blasting.

33 Turning specifically to concerns which were raised about the emission of dust, I find that, although some dust will be generated, by reason of the foregoing matters it will be managed to an acceptable degree and will not cause any unreasonable loss of amenity to nearby residents.

34 In relation to noise, the use will be required, by condition, to comply with State Environment Protection Policy N-1. Given the limited operating times of the proposed operation any noise impact of the use and development, which complies with SEPP N-1, will be acceptable. Further, I accept the evidence given by Mr Rob Burton, an acoustic expert, to the effect that operations can be conducted in a manner which complies with SEPP N-1. In this respect, evidence was given that reversing would rarely be used in the extraction of gravel; but, if reversing is to be a significant element, the applicant would be wise to have regard to my decision in De Bortoli Property Group Pty Ltd v Hume City Council [2004] VCAT 483.

35 The council referred me to the Environment Protection Authority publication "Industrial Residual Air Emissions". According to this publication an appropriate buffer distance for residual air emissions, in relation to a quarry that does not carry out blasting, is 200 metres from other sensitive land uses. But it is not the intention of this publication that the recommendation be applied blindly. In the present case, actual extraction activities will only occupy a period of 16 weeks. The subject land is obviously located in an extractive industry area. The nearby sensitive uses are of a rural residential nature, rather than an urban nature. And environmental management conditions will be imposed which are generally more stringent than those commonly found in quarrying operations.

36 Hence it is my conclusion that the amenity impact of the proposed extractive industry operations will be acceptable; and that the proposed use will be compatible with nearby uses.

37 There has been a tendency in the past for rehabilitation to be left to those administering extractive industry legislation, rather than being the concern of those responsible for town planning. For my part, I believe rehabilitation is extremely important; and extremely important to long term land use planning. Hence it is crucial, at least in the circumstances of this case if not generally, for rehabilitation issues to be subject to the town planning permit.

38 A traditional method of rehabilitating a former quarry has been to use it for landfill. This may often be appropriate. However in the present case, on the evidence before me, it would be decidedly inappropriate. The size of the hole to be created is unlikely to be large enough to justify a modern landfill. The site is certainly too close to a neighbouring rural residential area to be used for putrescible landfill. Moreover the nature of the extraction proposed in the present case leaves open preferable options than landfill. Because I have formed this view, and noting the concern of residents in relation to this issue, I will impose a specific condition to the effect that any final rehabilitation plan prepared for the subject land must not be based upon the future use of the land for the purposes of landfill.

39 It is possible that the best long term future for the land is simply bushland. On the other hand, if the link road is built, the land might be better used for industrial purposes. Indeed, this seems to be the recommendation of the authors of the East Bendigo Local Structure Plan. In these circumstances, I believe it is desirable to leave open the nature of the final rehabilitation, to be determined by the responsible authority in due course. However it will be necessary for this to be determined at least 18 months before the completion of extraction.

40 As a matter of principle, the person who wins a resource in an extractive industry operation ought be responsible for rehabilitating the site, in a manner which is acceptable to the community, following the completion of operations. There was once a time when those who won a resource simply walked away. That time is in the past. Indeed, I believe it is appropriate to insist that the person who wins the resource guarantees that the rehabilitation will take place, even if it is actually carried out by a public authority. A condition to this effect will be imposed.

41 I have decided that a permit should issue, but be subject to stringent conditions. The conditions which will attach to the permit have been generally canvassed in these reasons. The conditions are based upon those submitted during the hearing, but reworked to provide a more logical structure and better wording. I have also added some conditions which are necessary having regard to my conclusions.

42 It is important to observe that the conditions of the permit must be observed and will not be overridden by any conditions in a Work Authority. I was provided with certain draft conditions which might be included in a Work Authority for the land. With respect, these draft conditions seem to have been the product of some standard formula, rather than being tailored to the circumstances of the case. It would be better when consideration is given to this matter to revise, and reduce, the conditions on the Work Authority. For example, there might be a condition to the Work Authority requiring all the conditions of the planning permit to be observed; and then supplementing this with any additional conditions that are strictly necessary, and which deal with matters that are not encompassed by the planning process. There is no need to duplicate planning permit conditions.