Mansfield v Minister for Planning and Hanson Construction Materials Pty Ltd

Judgment 1In a judgment delivered on 19 March 2012 (Mansfield v Minister for Planning and Hanson Construction Materials Pty Ltd [2012] NSWLEC 1063) we provided our reasons for concluding that, subject to amendments to the proposed Asbestos Management Plan (AMP) and the Conditions, it was appropriate to approve the application made by Hanson Construction Materials Pty Ltd (Hanson) under the former Part 3A of the Environmental Planning and Assessment Act 1979 for a hard rock quarry to extract, process and transport by road up to 400,000 tonnes of basalt a year for 25-30 years (the Project). 2At paragraphs [109]-[113] we identified amendments that needed to be made to the AMP prepared on behalf of Hanson (exhibit 10A) to enhance and clarify its provisions so that it would provide an appropriate monitoring and adaptive management response to the residual uncertainty as to the location of Byng Volcanics, which may contain naturally occurring asbestos, on the Project site. At paragraph [127] we identified amendments required to the Conditions. 3On delivery of the judgment, in consultation with the parties, we made directions requiring the respondents to serve an amended AMP and amended Conditions, and for the final terms of the Project Approval including the Conditions and AMP to be provided by 13 April 2012. The parties were subsequently granted an extension of time. 4On 3 May 2012 the respondent Minister advised the Court that there continued to be some dispute between the parties as to the final form of the conditions including the AMP, and provided copies of the final form of those documents that the Minister proposed the Court make. In a separate email of that date, the solicitor representing the Minister provided an electronic copy of the proposed final form of conditions and the AMP. In that email correspondence, it was noted that the Minister had amended the proposed conditions in accordance with the Court's judgment and accepted that Hanson had amended the AMP also in accordance with that judgment, and had circulated the amended documents to the applicant. The Minister did not consider that further changes to the AMP, as suggested by the applicant, were required. 5On 3 May 2012 Hanson provided, by email, a copy of submissions made by the applicant dated 24 April 2012 and 3 May 2012, a letter from Hanson to the applicant dated 27 April 2012, and the Minister's submission dated 3 May 2012. On 8 May 2012 Hanson provided a response to the submissions made in support of the applicant's position dated 3 May 2012. 6The matter was listed for mention on 9 May 2012. As noted during the course of discussion of the amended documents on that occasion, we are satisfied that the amendments to the AMP made by Hanson meet the concerns identified in paragraphs [110]-[115] and [118]-[119] of our earlier reasons. 7We note in relation to the Asbestos Air Fibre Monitoring Protocol and Asbestos Air Fibre Exceedance Protocol provisions of the AMP that during the course of discussions between the parties, the definition of "Quantification Limit" has been amended to be "0.01 airborne fibres/ml". The term "Asbestos Impact Assessment Criterion (AIAC)" is defined to mean "0.01 airborne asbestos fibres/ml". The protocol required if there is an identified exceedance of the Quantification Limit at one or more monitoring locations is provided at part 8.1, and includes a requirement for further analysis and cessation of Intrusive Works and/or quarrying activity in the immediate vicinity until the results of the confirmation analysis indicate that the fibres counted resulting in the exceedance of the Quantification Limit are non-asbestiform fibres. Exceedance of the AIAC requires additional steps set out at part 8.3, 8.4, 8.5, 8.6, 8.7 and 8.8. 8The applicant submitted that the notification requirements in part 8.6 of the AMP should be amended to require notification within one day of receipt of monitoring results where an exceedance of the Quantification Limit is recorded, in addition to the requirement to notify if there is an exceedance of the AIAC. The applicant submits that this would enable neighbours to make decisions such as to keep their children inside, rather than being informed potentially some days after the event when the AIAC results come through, and is an appropriate approach indicating that Hanson is as concerned for the safety of its neighbours as it is for the safety of its employees. In its letter dated 27 April 2012 Hanson noted that it is possible for the Quantification Limit to be breached as a result of a number of activities which result in an increase in the number of fibres in the vicinity of an air monitoring station, notwithstanding that there are no asbestos fibres in the sample. Hanson submitted that notification of exceedance of the Quantification Limit would be unnecessary and unreasonable, and would lead to undue concern on the part of the local community. We accept that notification of an exceedance of the Quantification Limit where subsequent testing discloses no asbestos fibres may lead to community concern, however we are of the view that where the protocol in part 8.1 requires cessation of Intrusive Works and/or quarrying activity in the immediate vicinity of the relevant monitoring location, it is preferable for neighbouring owners and occupiers to be informed directly of the exceedance by Hanson. The notification provisions in part 8.6 should be amended to include a reference to exceedance of the Quantification Limit. 9At [116]-[117] we considered the requirements at 7.2 of the AMP relating to public notification of all asbestos fibre air monitoring results including notification to neighbouring landowners and occupiers within one kilometre of the project site. Hanson amended paragraph 7.2.2, however we were not satisfied that the amended version met the requirement that neighbouring owners and occupiers should be able to require direct provision of results, rather than relying on publication on Hanson's website. Accordingly, we directed the further amendment of paragraph 7.2.2. 10We are satisfied that the amendments made by the Minister to the Conditions meet the concerns expressed at [127] (a) and (b) of the earlier judgment. At [127] (c) we noted that Schedule 3 condition 4, which required preparation and implementation of an asbestos management plan, should be amended to reflect that during the course of the proceedings Hanson has prepared an AMP. The form of amended condition provided by the Minister retains the reference to preparation of a plan and includes a reference in a Note to the AMP in its now amended form, however, as discussed with the parties, we consider that to remove ambiguity condition 4 should be re-drafted to require implementation of the AMP in its final form, which is to be annexed as Appendix 4 to the Conditions. 11One of the matters raised in the applicant's submissions of 24 April 2012 concerned the review and audit of the AMP. The applicant suggested that there should be an independent review of the AMP if the Protocol in Part 8 of the AMP is activated more than twice in 180 days, which he submits will ensure that the AMP remains appropriate bearing in mind the 30 year life of the mine. Hanson's response in its letter of 27 April 2012 was to rely on the independent audit of the entirety of mine operations required every three years under Schedule 5 of the Conditions. We consider that given the significance of the AMP as a mitigatory measure in the context of applying the precautionary principle it is appropriate to require more regular review of its provisions. We agree that Schedule 3 condition 4 should be amended to include a requirement for a review of the AMP, by a suitably qualified, experienced and independent expert whose appointment has been endorsed by the Director-General, if the Asbestos Air Fibre Exceedance Protocol in Part 8 is activated as a consequence of an exceedance of the AIAC more than twice in 180 days. 12The applicant's submissions dated 24 April 2012 raise a number of additional matters. Hanson responded to those matters in its letter of 27 April 2012, and provided a further response dated 8 May 2012. The Minister's position, as expressed in the email of 3 May 2012, was that the suggested further changes to the conditions and AMP had been considered and that the Minister did not consider that further changes to the AMP as suggested by the applicant were required. We have considered the applicant's suggestions and Hanson's responses. We have agreed to further detailed amendments to the AMP as noted above to enhance and clarify its provisions in order to meet the need for a mitigatory approach that provides appropriate monitoring and adaptive management, and we have outlined above the further amendments required to the Conditions to ensure clarity and certainty. We are satisfied that the further suggested amendments are not required, for the reasons provided by Hanson, in the context of the consideration given to the provisions of the AMP and Conditions having regard to the evidence in the proceedings. 13On 15 May 2012 the Minister provided the Project Approval and AMP amended in accordance with the earlier reasons and incorporating the requirements specified above as discussed with the parties on 9 May 2012. 14We are satisfied that approval should be granted to the Project, subject to the conditions provided in the Project Approval and the finalised Asbestos Management Plan. In order to approve a project on different conditions from those originally approved by the Minister, which now include the Asbestos Management Plan, it is necessary for the Court to uphold the appeal: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254; Ironstone Community Action Group Inc v Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195. 15The Orders of the Court are: