Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire... [2010] NSWLEC 104 | Case summary

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire... [2010] NSWLEC 104 | Case summary | Zoe

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JUDGMENT 1 HIS HONOUR: On 31 March 2010, I gave judgment indicating that the proposed limestone quarry was appropriate to be approved if suitable conditions could be drafted to address the matters raised in the judgment: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48. I made directions for the parties to address the outstanding matters and propose further and amended conditions. 2 A further hearing was held on 28 and 31 May 2010 at which additional evidence was adduced and revised conditions tendered. Evidence was given on two topics: caves and their biota and surface biodiversity. As to the first, the issues related to the pre-blasting assessment protocol. Dr Osborne and Dr Swabey again gave evidence. They agreed concerning the safe distance for blasting from caves. Dr Osborne also gave brief evidence as to inspection under the Cave Discovery Protocol following initial excavation on the first bench to be cut. Dr Peter Hancock gave evidence for the applicant, in a report dated 19 May 2010, on the design and implementation of a pre-blasting assessment protocol. Dr Hancock's recommendations were adopted in the revised conditions tendered. 3 As to the second topic, the issues related to the measures proposed to offset the impacts of the proposed quarry on the White Box endangered ecological community. Mr Dominic Fanning, ecologist, gave evidence for Stoneco. In his evidence in chief in a report dated 6 May 2010, Mr Fanning proposed that the Project Site be extended to the south to incorporate, within a 6ha area, the north-facing slope of the next ridge to the south of the quarry ridge, which supports the same Large-flowered Bundy-Kurrajong with a Lomandra understorey community as is presently on the quarry site itself, as well as the whole of the south-facing slope of the quarry ridge, which supports the closely related Large-flowered Bundy-Kurrajong with a grassy understorey community. Both of these vegetation communities fall within the White Box endangered ecological community. 4 Dr Clements again gave evidence for the applicant. In her report of 21 May 2010, Dr Clements agreed that the vegetation communities in the 6ha area proposed by Mr Fanning were appropriate as a biodiversity offset. However, Dr Clements disagreed that this 6ha area alone was sufficient. Dr Clements applied the six principles of offsetting which she said were held by Jagot J, but in fact were proposed by a witness, in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; (2006) 153 LGERA 355 at [38]. Dr Clements applied these principles to the proposed 6ha area alone and did not consider the remaining 60ha of the Project Site. 5 Mr Fanning in his report of 24 May 2010, in reply noted that the 6ha biodiversity offset was supplementary to the other measures proposed to retain, protect and manage in perpetuity for biodiversity conservation purposes the balance of the Project Site. These measures are detailed in the revised conditions of consent, including: * preparation and implementation of a Biodiversity Management Plan (S1.2.3 and S5.5); * conservation in perpetuity of vegetation on the Project Site outside of the extraction area (S1.21.2 and S5.5(g)); * checking of tree hollows prior to removal and replacement of tree hollows lost (S1.21.4-1.21.9 and S7.2); * prohibition of clearing of native vegetation on the Project Site outside of the extraction area (S1.22.1); * prohibition on roads within 5 metres of any stand of Xanthorrhoea glauca (grass trees) or Ficus rubiginosa which is located outside of the boundaries of the extraction area (S1.24A.1); * restrictions on grazing within the Project Site (S1.36 and S5.5(f)(viii) and (g)); * the rehabilitation of the Project Site, especially the extraction area (S5.5(d)-(f) and S7.3); * weed management of the Project Site (S5.5(f)(i)); * protection of sensitive site features and their buffer areas, including Xanthorrhoea glauca and gullies and their vegetation (S5.5(f)(ii)-(iv)); and * preparation and implementation of a Landscape Management Plan (S7.1) incorporating a Vegetation Clearing Plan (S7.2), Rehabilitation Management Plan (S7.3) and Mine Closure Plan (S7.4). 6 Mr Fanning observes that the total offset package comprising not only the supplementary 6ha biodiversity offset but also the biodiversity conservation measures proposed in the revised conditions, entirely satisfies the principles referred to in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council. 7 At the further hearing, the parties made submissions in relation to the revised conditions where these were in dispute. I made rulings ex tempore on the disputed conditions. These rulings necessitated further revision of the conditions. I made directions setting a timetable for the parties to prepare further revised conditions. 8 These further revised conditions were filed on 11 June 2010. There were still some matters on which the parties remained in disagreement relating to the pre-blasting assessment protocol and the Biodiversity Management Plan and offsets. I also had concerns as to the wording of a number of the conditions. A further hearing was therefore held on 18 June 2010 at which the parties made submissions and I made rulings ex tempore. On one final matter, relating to what should be the appropriate response of Stoneco to the finding of material of geodiversity significance during the pre-blasting assessment (condition S3.32), Stoneco sought time for consideration and to make submissions later. A further timetable was directed culminating with a final hearing on 23 June 2010 if the parties were not able to reach agreement beforehand. 9 On 21 June 2010, the Council filed further revised conditions incorporating my rulings on 18 June 2010 and a revised condition S3.32. The Council advised that Stoneco, the applicant and the Council had reached agreement as to the wording of condition S3.32. A further hearing was therefore not required. 10 As a result, all of the conditions of consent have now been settled. I consider that proposed limestone quarry if carried out in accordance with these final conditions of consent is appropriate and should be approved. 11 I do not accept the applicant's submission that the evidence does not permit the Court to formulate appropriate conditions that adequately address the risks to geodiversity and biodiversity. The final conditions implement a precautionary, adaptive management approach, yet still meet criteria of finality and certainty. 12 The final conditions also ensure adequate offset is provided for damage caused to the White Box endangered ecological community by the proposed development. The offset is not merely the supplementary 6ha area to be included in the extended Project Site. It also includes the long-term conservation of the vegetation on all of the Project Site not directly to be quarried or used for ancillary works and uses (54ha) as well as, after quarrying operations have finished, the rehabilitation and conservation of the areas damaged and used for quarrying operations (6ha). The long-term conservation of the White Box endangered ecological community on the combined area of 66ha will be required by the final conditions of consent (as summarised above). I am satisfied that there will be gains in the conservation of biodiversity of sufficient magnitude in these total offset areas to compensate for the loss of vegetation during quarrying operations. 13 In this respect, I prefer the evidence of Mr Fanning that the measures proposed for the retention and protection for biodiversity conservation purposes of the whole of the 66ha of the Project Site contributes to offsetting the damage caused by quarrying operations, rather than the evidence of Dr Clements who focussed only on the supplementary 6ha area. 14 In order to grant consent on the final conditions, it is necessary for the Court to uphold the appeal. This order is necessary notwithstanding that the appeal is a third party objector appeal by the applicant against the decision of the Council to grant consent. As I noted in another third party objector appeal, Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 at [5]-[6], in order to approve a development that is different in material respects, and on different conditions from those originally approved by the Council, it is necessary for the Court to uphold the appeal. 15 Accordingly, the formal orders of the Court are: 1. The appeal is upheld.

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GENERAL CONDITIONS S1.2 General S1.2.1 The proposed development must be carried out in accordance with the proposal described in the Environmental Impact Statement (R.W. Corkery & Co Pty Limited, 2008), except as modified by (i) these conditions, (ii) engineering and subdivision requirements imposed by the Council; (iii) the location of the stockpile and handling area in the "Preferred Project Layout Plan"; and/or the requirements of the Environmental Planning and Assessment Act 1979. Mining Operations Plan and Mine Closure Plan S1.2.2 The Applicant shall prepare and submit for approval by the Director-General of the Department of Industry & Investment each of the following: (a) a Mining Operations Plan: (b) a Mine Closure Plan. Each of those plans shall be prepared in accordance with the Mining Act 1992 and with all other applicable legislation. Following the approval of each of those plans, the Applicant shall provide a copy of the approved plans to the Council. Note: Under this consent, the Applicant is required to rehabilitate the Project Site to the satisfaction of the Council and the consent will continue for this and related purposes. Management Plans S1.2.3 The Applicant shall prepare and submit to the Council for approval each of the following: (a) a Soil and Water Management Plan (SWMP) prepared in accordance with conditions S5.2(a) and S5.3; (b) an Air Quality Management Plan (AQMP) prepared in accordance with conditions S5.2(b) and S5.4 ; (c) a Biodiversity Management Plan (BMP) prepared in accordance with conditions S5.2(c) and S5.5 ; (d) an Environmental Management Strategy (EMS) prepared in accordance with condition S6.1; (e) a Landscape Management Plan (LMP) prepared in accordance with condition S7.1; (f) a Vegetation Clearing Plan (VCP) prepared in accordance with condition S7.2; (g) a Rehabilitation Management Plan (RMP) prepared in accordance with condition S7.3; and (h) a Lower Chert Band Management Plan (LCBMP), prepared in accordance with conditions S5.2(d) and S5.6. S1.2.4 Each of the plans submitted by the Applicant to the Council in accordance with condition S1.2.3 shall be assessed by the Council. The Council (acting reasonably) may require the Applicant to amend the Plans. After any such amendments are made by the Applicant, the Council shall approve each of those plans. No works may commence on the Project Site until the Council has approved each of those plans listed in S1.2.3 (a), (b) and (f). No extraction works may commence on the Quarry Site until: (a) the Council has approved all other remaining plans listed in S1.2.3; and (b) the Director-General of the Department of Industry Investment has approved the plans in S1.2.2. S1.2.5 If from time to time, and in accordance with these conditions, the Applicant (whether of its own volition or in accordance with recommendations made pursuant to these conditions) proposes any amendments to the plans referred to in condition S1.2.3 then those proposed amendments shall be submitted by the Applicant to the Council for approval. S1.2.6 An amendment to a plan under condition S1.2.5 does not take effect until: (a) the Council has approved the amendments; and (b) the Applicant has made any further amendments required by the Council (acting reasonably) as a condition of approving the amendments. S1.2.7 The Applicant shall fully implement each of the plans referred to in condition S1.2.3, including any amendments to those plans approved by the Council in accordance with S1.2.6. S1.2.8 If there is any inconsistency between these conditions of consent and any of the following: (a) the Environmental Impact Statement; (b) the documents referred to in S1.2.1 (iii)-(v); or (c) the plans referred to in S1.2.2 and S1.2.3, then the conditions of consent shall prevail.

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Reason: To ensure that public road and bridge infrastructure is of adequate standard and is adequately maintained during the life of the quarry. S1.6 Traffic Safety S1.6.1 Prior to work commencing on the Project Site, the Applicant shall provide an appropriate two-way radio to the school bus that uses the haulage route. The bus drivers shall be appropriately trained in the use of the radio. S1.6.2 Prior to work commencing on the Project Site, the Applicant shall provide a code of conduct to all truck drivers (using the quarry) outlining the required conduct during the delivery of materials and details of the local school bus movements. The code must require: (a) that all loads be covered in accordance with the Department of Environment and Climate Change General Terms of Approval. (b) all loaded trucks are loaded using a front-end loader with weigh cells, or other approved weighing system, prior to leaving the Project Site to avoid overloading; (c) truck drivers to be conscious of the school bus and school children and their pick-up / drop-off locations, particularly during specified pick-up / drop-off times; and to drive in a courteous and safe manner; (d) a 20km/hr speed limit for trucks whilst travelling along unsealed sections of the internal site access road; (e) restriction of material transport within daylight hours with no product trucks entering the Project Site before 7.00am or leaving the Project Site after 5.00pm daily (Monday to Saturday); and (f) have an agreed communication protocol between truck drivers and the school bus company. S1.6.3 Prior to work commencing on the Project Site the Applicant shall prepare and submit to the Council for approval detailed plans showing the access road within the site and the intersection of that access road with Timor-Crawney Road. No work shall be carried out on the Project Site until those plans are approved by the Council. S1.6.4 Prior to the commencement of haulage of product from the Project Site, the Applicant shall construct pull-over bays in four (4) locations approved by the Council's Traffic Committee along the Timor Road haul route. The bays shall be for the purpose of enabling loaded trucks to pull over and enable safe overtaking by other traffic along steep sections of the haul route. The bays are to be of adequate dimensions and construction standard to safely fulfill their purpose. Where approved by Council, the bays may coincide with school bus pick up/drop off locations.

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S1.12.12 After a three (3) year period has elapsed, from the date on which the first set of bore samples is taken and recorded, the Applicant may engage an appropriately qualified GDE Expert to review the sampling data set and make any written recommendations about whether the sampling frequency may be reduced or should be increased, and whether the sampling parameters should be varied. Any recommended changes in the frequency of bore sampling must take into account any seasonal variations in taxa numbers and recommend specific times of the year that sampling be undertaken. This report must be submitted to the Council and the Council may determine to reduce or to increase the bore-sampling frequency and parameters being sampled. S1.12.13 The cumulative results/data of the monitoring and sampling must be reported in the Annual Environmental Management Report (AEMR)[see Condition S6.2]. That is, the monitoring and sampling data from all previous years must be set out in a cumulative monitoring and sampling table for each subsequent AEMR for the life of the development. S1.12.14 The AEMR must include statements from an appropriately qualified GDE expert and from a qualified hydrologist. The GDE expert shall review the annual data-set from the three (3) groundwater monitoring bores (making any relevant comparisons with historical data taken from those bores) and shall summarise his or her findings. The qualified hydrologist shall review the findings made by the GDE expert and shall make recommendations about the manner in which the quarrying operations should continue on the Project Site, including recommendations about the way in which any impacts on water quality and on GDE biota should be addressed. S1.12.15 The recommendations made under S1.12.11 and S1.12.14 must be incorporated by the Applicant as proposed amendments to the Mining Operations Plan [condition S5.1] and to the Soil and Water Management Plan [conditions S5.2(a) and S5.3]. S1.12.16 The actions referred to in condition S1.12.15 must be taken within two (2) months of the date on which the recommendations are made to the quarry owner. Within one (1) month of receiving those recommendations the quarry owner must provide to the Council a copy of the recommendations made by the qualified hydrologist and details of the actions that will be taken by the quarry owner to implement those recommendations.

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(iv) a stock passage route 10m wide running parallel and adjacent to the eastern boundary of the Project Site, that will be established to allow the movement of livestock from the part of Lot 31 to the south of the Project Site to the part of Lot 31 to the north of the Project Site, provided that the stock passage route must not be used for the grazing of livestock and must be separated from the remainder of the Project Site by a permanent or temporary fence, which prevents livestock moving through the stock passage route from entering the remainder of the Project Site. (c) The BMP shall be prepared by persons with appropriate qualifications or training and knowledge and experience in weed control and bush regeneration / rehabilitation practices and who are eligible for membership of the Australian Association of Bush Regenerators (AABR) or of another suitable ecological organisation. The BMP must be approved by the Council prior to the commencement of any works on the Project Site. (d) The BMP must detail a strategy for the protection, rehabilitation, conservation and enhancement of all endangered ecological communities and all other natural and bushland areas within the Project Site (excluding the areas referred to in (b)(i)-(iii) above but only while quarrying works are being undertaken) and must provide for the implementation of that strategy during: (i) the period of thirty (30) years (or such longer period as may be approved by the Council and by the responsible regulatory authorities) during which quarrying operations are conducted within the Project Site; and (ii) within the further period during which rehabilitation of the Project Site is undertaken, either in accordance with the requirements of this development consent or in accordance with the requirements of the Department of Industry & Investment or any other responsible regulatory authority, to achieve the objective that at the expiration of the periods referred to in (i) and (ii) the endangered ecological community within the Project Site will be self-sustaining and naturally regenerating. (e) An AABR approved contractor is to be engaged for the purpose of weed control and rehabilitation works, and the contractor's details must be supplied to Council prior to the commencement of weed control and/or rehabilitation work. (f) The BMP is to incorporate the following: (i) A prioritised weed management strategy with particular reference to creek line /riparian zones. This strategy is to include: (1) a schedule of all noxious and environmental weeds on the site; (2) specific control techniques to be employed, particularly where a high potential for weed succession, soil erosion and creek bank destabilisation exists; (3) disposal of waste material; and (4) a realistic timeframe for an appropriate level of weed control to be achieved. (ii) Provision of clear and concise mapping of sensitive site features and their buffers, including Xanthorrhoea glauca subsp. angustifolia (grass trees). (iii) Protection of the trees within the gullies on either side of the stockpiling and handling area and rehabilitation of vegetation affected by construction and infrastructure works undertaken to commence the operation of the quarry. (iv) Protection and management of vegetation including Xanthorrhoea glauca subsp. angustifolia, including the provision of appropriate buffer areas. (v) A time frame for any work to be undertaken to rehabilitate the vegetation within the Project Site, with a clearly defined program of works and readily measureable objectives for the program. (vi) A propagation schedule of provenance plant material, to be used in areas of poor to nil resilience. Supplementary planting in these areas is only to be undertaken in accordance with the approved BMP. (Note: Natural regeneration within key areas is preferable to supplementary planting or landscape regeneration. Any areas on Project Site displaying spontaneous recovery/regeneration are to be protected and their complete recovery facilitated.) (vii) Monitoring of the progress of the implementation of the BMP is to be undertaken and reported within the Annual Environmental Management Report, referred to in condition S5.2. Fixed and permanent photographic reference points are to be established prior to the commencement of the strategy. Pre-treatment photographs should be taken prior to commencement of the program. These photographs will serve as evidence of the work undertaken, and will allow Council to determine the success of the BMP. A photographic record of the areas undergoing weed control treatment and rehabilitation and/or revegetation should be maintained by the Applicant or by the contractor undertaking the work, and made available to Council upon request. Monitoring is to be undertaken at the intervals specified below and reports are to be provided within one month of each date: (1) 1 month after commencement of quarrying;: (2) 6 months after commencement of quarrying; (3) 12 months after commencement of quarrying; (4) thence on an annual basis over the life of the quarry operation. (viii) Provision for controlled gazing within the Project Site, but only as a tool for appropriate management of vegetation cover, so as to facilitate germination of vegetation and establishment of desired native vegetation or to reduce bushfire hazard. The BMP shall specify the periods during which such grazing is permitted and the areas within which grazing will be permitted during those periods. (ix) Provisions requiring that: (1) No tracks be established within the Untracked Area; (2) No tracks be established within the rest of the Project Site other than those necessary for quarrying operations in accordance with this Consent; (3) Prior to the commencement of quarrying operations, all other tracks within the Project Site are to be removed and revegetated; and (4) All tracks within the Project Site are to be revegetated and rehabilitated at the conclusion of quarrying operations, other than any tracks required for maintenance of the vegetation on the site. (g) Prior to commencement of any work under this consent, the Applicant must either: (i) enter into a conservation agreement under Div 12 of Pt 4 of the National Parks and Wildlife Act 1974 relating to the Project Site, recording the obligations assumed by the Applicant under this condition S4.5, and under any other relevant conditions of this consent and register that agreement pursuant to s69F of the National Parks and Wildlife Act 1974; or (ii) cause to be registered against the title of the Project Site a public positive covenant and/or a restriction on the use of the land, in favour of the Council, requiring the Applicant to implement and observe the requirements of this condition S4.5, and any other relevant conditions of this consent,

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S5.6 LCBMP The LCBMP shall: (a) identify the investigations to be undertaken before the quarry void reaches RL580m, to provide additional information on the position of the Lower Chert Band; (b) provide for drill holes to be completed in two parallel lines along the line of the creek to the north of the proposed Quarry Site, with those holes to be completed to RL550m, being 10m below the proposed minimum RL of the quarry void. The drill hole positions should include a: (i) northern line, duplicating and extending previous drill holes S2 and S3; and (ii) southern line, duplicating and extending previous drill holes YRDDH and S4 and adding two drill holes to the east of S4 along the ridgeline. These drill holes should be: (1) 10m east of the eastern boundary of the quarry footprint; and (2) 150m east of the eastern boundary of the quarry footprint. (c) include mapping of the surface extent of the Lower Chert Band by a qualified geomorphologist or geologist; (d) include a 3D computer model of the position of the Lower Chert Band constructed using the information gained from (a) and (c); and (e) with reference to the 3D computer model of the position of the Lower Chert Band, provide a design of the proposed quarry void such that, vertically, it is at least 5m above the upper margin of the modelled Lower Chert Band. S5.7 Management Plan Requirements The Applicant shall ensure that the management plans required under this development consent are prepared in accordance with any relevant guidelines, and include: (a) detailed baseline data; (b) a description of: (i) the relevant statutory requirements (including any relevant approval, licence or lease conditions); (ii) any relevant limits or performance measures/criteria; and (iii) the specific performance indicators that are proposed to be used to judge the performance of, or guide the implementation of, the project or any management measures; (c) a description of the measures that will be implemented to comply with the relevant statutory requirements, limits or performance measures/criteria; (d) a program to monitor and report on the: (i) impacts and environmental performance of the project; (ii) effectiveness of any management measures (see (c) above), (e) a contingency plan to manage any unpredicted impacts and their consequences; (f) a program to investigate and implement ways to improve the environmental performance of the project over time; and (g) a protocol for periodic review of the plan concerned, including but not limited to a summary of the conclusions / recommendations of the review of each plan in the Annual Environmental Management Report (AEMR) as referred to in Schedule 6. SCHEDULE 6

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S6.1 Environmental Management Strategy The Applicant shall prepare and implement an Environmental Management Strategy (EMS) for the quarry operations to the satisfaction of Council. The Strategy must: (a) be submitted to the Council for approval prior to the commencement of excavation work on the Project Site; (b) provide the strategic framework for environmental management of quarrying work at the Project Site; (c) identify the statutory approvals that apply to quarrying work at the Project Site; (d) describe the role, responsibility, authority and accountability of all key personnel involved in the environmental management of the project; (e) describe the procedures that will be implemented to: (i) keep the local community and relevant agencies informed about the operation and environmental performance of the development; (ii) receive, handle, respond to, and record complaints; (iii) resolve any disputes that may arise during the course of the development; (iv) respond to any non-compliance; and (v) respond to emergencies, (f) include: (i) copies of the various strategies, plans and programs that are required under the conditions of this development consent once they have been approved; and (ii) a clear plan describing all the monitoring required to be carried out within the Project Site. S6.2 Annual Environmental Management Report At the end of each 12 month period calculated from the commencement of quarrying on the Project Site, the Applicant shall submit an AEMR to the relevant government agencies and to the satisfaction of the Council. This report must: (a) identify the standards and performance measures that apply to the development; (b) include a summary of the complaints received during the past year, and compare this to the complaints received in the previous 5 years; (c) include a summary of the monitoring results on the development during the past year; (d) include a comprehensive review of these monitoring results against the relevant: (i) limits/criteria in this consent; (ii) monitoring results from previous years; and (iii) relevant predictions in the EIS and Specialist Consultant Studies Compendium; (e) identify any trends in the monitoring results over the life of the development; (f) identify and discuss any non-compliance during the previous year; and describe what actions were, or are being, taken to ensure compliance. These actions may include proposed amendments of management plans, to be proposed, approved and implemented as specified in conditions S1.2.4, S1.2.5 and S1.2.6. (g) describe the works that were carried out in the past year, and the works that are proposed to be carried out over the next year; and (h) describe what measure will be implemented over the next year to improve the environmental performance of the approved operations; and (i) include the data, findings and recommendations referred to in conditions S1.12.11 and S1.12.12, and confirm the action taken by the quarry owner to implement those recommendations, as required by condition S1.12.15. Notwithstanding the above requirements for an AMER, the Applicant shall notify Council and the EPA immediately following any observed environmental exceedence. Details of the circumstances of the exceedence and any measures adopted to rectify/suspend operations are to be provided with the notification (refer also to Condition S6.6). Reason: To ensure the there is adequate reporting of the quarry operations S6.3 Pre-Commencement Inspection At the completion of the site establishment and construction stage and prior to the commencement of product transportation, an inspection shall be undertaken by Council officers to ensure compliance with conditions relevant to the site establishment and construction phase. Note: Inspection fees will apply to the development in accordance with Council's Management Plan. Reason: To ensure the all works and site facilities are in place to a standard acceptable to the Council. S6.4 Additional Inspections The Consent authority may carry out inspections at any time as deemed necessary. Note: Inspection fees will apply to the development in accordance with Council's Management Plan. Reason: To investigate any matters relating to the operation of the quarry. S6.5 Community Consultative Committee (a) The Applicant shall participate in a Community Consultative Committee (CCC) for the development, which will be established in accordance with a Charter adopted by Council. (b) The Applicant shall, at its own expense: (i) ensure that an appropriate representative(s) attends the Committee's meetings; (ii) provide the Committee with regular information on the environmental performance and management of the development (such as through the AEMR); (iii) arrange site inspections for the Committee, if necessary; and (iv) respond to any advice or recommendations the Committee may have in relation to the environmental management or performance of the quarry. Reason : To provide the community with an opportunity to raise concerns or issues related to the on-going operation of the quarry. S6.6 Incident Reporting The Applicant shall notify the Council and any other relevant agencies of any incident associated with the development as soon as practicable after the Applicant becomes aware of the incident. Within 7 working days of the incident, the Applicant shall provide the Council and any relevant agencies with a detailed report on the incident concerned. S6.7 Independent Environmental Audit (a) Within two years from the date the consent becomes effective, and every five years thereafter, unless the Council directs otherwise, the Applicant shall commission and pay the full cost of an Independent Environmental Audit of the development. (b) This audit must: (i) be conducted by a suitably qualified, experienced, and independent person whose appointment has been endorsed by the Council; (ii) be consistent with ISO 19011:2002 - Guidelines for Quality and/or Environmental Systems Auditing, or equivalent updated versions of these guidelines; (iii) assess the environmental performance of the development, and its effects on the surrounding environment; (iv) review the adequacy of strategies, plans or programs required under this development consent and under the approvals referred to in (iii); (v) assess whether the development is complying with the relevant standards, performance measures, and statutory requirements; (vi) review the adequacy of the Applicant's environmental management measures; and if necessary, recommend measures or actions to improve the environmental performance of the development. (c) The Applicant shall notify the Council of the date of commissioning each audit. Within 3 months of the commissioning the Applicant shall submit a copy of the audit report to the Council, with a response to any of the recommendations contained in the audit report. Reason: To ensure the quarry is complying with relevant standards, performance measures and statutory requirements. S6.8 Revision of Strategies, Plans and Programs Within three (3) months of the submission of an: (a) audit under condition S6.7; (b) incident report under condition S6.6; and (c) Annual Environmental Management Report under condition S6.2, the Applicant shall review, and if necessary amend, the strategies, plans and programs required under this development consent to the satisfaction of the Council. The Council is to approve any such amendment, to the extent that such an amendment is permitted under the terms of this consent. S6.9 Access to Information No later than the expiration of 6 months from the date on which quarrying work commences at the Project Site, the Applicant shall make the following information publicly available on its website: (a) a copy of all current statutory approvals; (b) a copy of the current Environmental Management Strategy and associated plans and programs; (c) a summary of the monitoring results of the project, which have been reported in accordance with the various plans and programs approved under the conditions of this development consent; (d) a complaints register, which is to be updated on a monthly basis; (e) a copy of the minutes of any community consultative committee (or equivalent body) established by the Applicant and the Council in accordance with this development consent; (f) a copy of all annual reviews, as those reviews are undertaken; (g) a copy of any independent environmental audit, and the Applicant's response to the recommendations in any such audit, after each audit is carried out and after the Applicant's response is completed; and (h) any other matter required by the Council or by any other regulatory authority with jurisdiction in relation to the development.

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Landscape Management and Rehabilitation Landscape Management Plan S7.1 The Applicant shall prepare and implement a detailed Landscape Management Plan for the Project Site to the satisfaction of Council. This shall: (a) be prepared in consultation with Council and the Department of Industry & Investment; (b) be submitted to Council for approval prior to commencement of operations on Project Site; (c) incorporate: (i) the Biodiversity Management Plan (See Condition S5.2(c) and S5.5); (ii) a Vegetation Clearing Plan; (iii) a Rehabilitation Management Plan; and (iv) a Mine Closure Plan. Vegetation Clearing Plan S7.2 The vegetation clearing plan shall include the following. (a) Clear delineation of disturbance areas and restriction of clearing to the minimum area necessary to undertake the approved activities. (b) A methodology for recording the approximate size and number of hollow bearing trees to be removed and their replacement with the same number of nesting boxes of appropriate sizing within similar vegetation within the Project Site. The nesting box design chosen must reflect the size of hollows removed with microbat nesting boxes used to replace small hollows and Squirrel Glider nesting boxes to replace medium size hollows. (c) Observation of hollowing bearing trees by an appropriately trained or qualified person to determine if hollow dependent fauna are present. Hollow bearing trees in use must be marked and surrounding vegetation cleared several days prior to the removal of the hollow bearing trees to promote vacation of the trees. (d) Provision for a suitably trained or qualified person to be present during the felling of identified hollow bearing trees to provide assistance with the care of any injured fauna. (e) Provision for the checking of any animals found and recording of the species, number, condition (age class, pregnant or lactating females etc) and for details to be provided to the National Parks and Wildlife Service and Council within 3 months of the clearing event. (f) A methodology for recording the number of White Box (Eucalyptus albens), Yellow Box (Eucalyptus melliodora) and Bundy (Eucalyptus nortonii) trees removed and replacement with five seedlings raised from local White Box, Yellow Box and Bundy stock and planted within similar vegetation within the Project Site. (g) Provision for the annual inspection of the nesting boxes and health of the planted White Box, Yellow Box and Bundy seedlings for the first 5 years of operation. An inspection report shall be prepared and include a review of the condition and use of the nesting boxes. Any planted White Box, Yellow Box or Bundy trees that are found to have died are to be replaced with any actions taken to help ensure the new plantings have a better chance of becoming established. Rehabilitation Management Plan S7.3 The Rehabilitation Management Plan must include: (a) the rehabilitation objectives for the Project Site; (b) an outline of how the Quarry Site would be rehabilitated so as to integrate with the surrounding landform and does not contain any slopes or vertical headwalls that do not conform with the then current industry practice and standards; (c) a description of how flora and habitat values will be improved or enhanced; (d) a general description of the short, medium and long term measures that would be implemented to rehabilitate the Project Site; (e) a detailed description of the measures that would be implemented within the proposed areas of disturbance for: (i) conserving and reusing topsoil, and obtaining soil depth similar to that naturally occurring on and surrounding the disturbed areas of the Project Site; (ii) establishing biologically active topsoil by introduction of native early colonising species of naturally occurring limestone soils prior to re-establishing existing vegetation communities; (iii) protecting any areas displaying spontaneous recovery/regeneration of vegetation and facilitating that recovery and regeneration; (iv) revegetation with native tree, shrub and grass species comparable with the existing vegetation communities in the area; (v) methods of seeding (prepared by a restoration ecologist) which ensure that local native provenance plants will be able to be re-established on the constructed slopes; (vi) salvaging and reusing material from the Project Site for habitat enhancement; and (vii) controlling weeds and feral pests. Note: the collection of seeds from an Endangered Ecological Community requires licencing under Section 91 of the Threatened Species Conservation Act 1995. (viii) performance and completion criteria for the rehabilitation of the site; and (ix) a description of how the performance of the rehabilitation works would be monitored over time to achieve the stated objectives and against the relevant performance and completion criteria. Mine Closure Plan S7.4 The Mine Closure Plan shall: (a) define the objectives and criteria for mine closure; (b) outline options for the future use of the Project Site; (c) describe the measures that would be implemented to minimise or manage the on-going environmental effects of the project; and (d) describe how the performance of these measures would be monitored over time. Rehabilitation Security S7.5 The Applicant shall establish a rehabilitation security deposit or bond with the Department of Industry & Investment under the Mining Act 1992 prior to commencing quarrying work on the Project Site. Species to be Used in Short-term Soil Stabilisation S7.6 Where short-term soil stabilisation utilising groundcover species is required, the Applicant shall use the appropriate groundcover species as outlined within Table 1.

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited

At a glance

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Judgment (448 paragraphs)

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Legislation Cited (4)

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Cited By (10)