Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire... [2010] NSWLEC 48 | Case summary

Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire... [2010] NSWLEC 48 | Case summary | Zoe

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BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633 Hoffman Homes v Administrator, 961 F2d 1310 (7th Circuit 1992) Hoffman Homes v Administrator, 999 F2d 256 (7th Circuit 1993) Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116; (2008) 161 LGERA 136 Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 CASES CITED: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 Plumb v Penrith City Council [2002] NSWLEC 223 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1 Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297; (2003) 58 NSWLR 631, 128 LGERA 419 Zia v WAPDA PLD 1994 SC 693

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(c) that greenhouse gas emissions are minimised to the greatest extent practicable": cl 14(1). 23 Clause 8 of the Mining SEPP deals with the permissibility of development for the purposes of mining, petroleum production or extractive industry under local environmental plans. Its effect is to make permissible such development notwithstanding provisions of a local environment plan which make the permissibility of such development contingent upon certain provisions of the plan being satisfied (cl 8(1)) or the consent authority being satisfied as to certain matters (cl 8(2)). Clause 8 continues the effect, in relation to mining, of the former State Environmental Planning Policy No 45 - Permissibility of Mining which was introduced in response to the successful judicial review challenge concerning the permissibility of the Bengalla open cut coal mine in Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1. The subsequent judicial review challenge to the former SEPP45 was ultimately unsuccessful: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 reversing Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1. 24 NHVSS argued that cl 8 of the Mining SEPPP was not applicable in this case as cl 9(3) of the LEP is not a provision of the kind referred to in cl 8(1) or (2) of the Mining SEPP. Clause 9(3) does not go to the permissibility of development on the site. Within the Rural "A" zone, development for the purposes of extractive industry is permissible with consent. There is no provision requiring provisions of the LEP to be satisfied, or the consent authority to be satisfied of matters, prior to such development being permissible. Rather, cl 9(3) establishes a condition precedent that must be satisfied by the Council prior to the exercise of the discretionary power to grant consent to the permissible development. 25 It is unnecessary to determine this question in this case as, for reasons I will give later, I am satisfied that cl 9(3) of the LEP is met in the circumstances of this case. Hence, any potential conflict between cl 9(3) of the LEP and cl 8 of the Mining SEPP does not arise in the circumstances of this case.

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The issues on appeal 28 The issues which were raised can, for convenience, be considered under three headings: impacts on surface ecology; impacts on caves and other karst features and cave dwelling fauna; and other issues and concerns of the resident objectors. 29 In relation to the surface ecology issues, NHVSS contended that the vegetation over the whole of the Project Site comprised the endangered ecological community of White Box Yellow Box Blakely's Red Gum Woodland ("the White Box EEC") and habitat of the threatened species Petaurus norfolcensis ("Squirrel Glider"). NHVSS contended that the proposal was likely to significantly affect the White Box EEC and the Squirrel Glider so as to require a species impact statement ("SIS") to accompany the development application by reason of s 78A(8)(b) of the EPA Act. No SIS had been prepared. If an SIS was required, neither the Council in the first instance nor the Court on appeal would have the power to grant development consent to the proposal. 30 In relation to the karst issues, NHVSS contended that the limestone on the Project Site is likely to contain caves and other karst features and cave-dwelling fauna. NHVSS contends that the proposal is likely to cause serious or irreversible damage to these karst features and fauna. 31 The third group of issues concerned those raised by cll 9 and 10 of the LEP and cll 12 and 14 of the Mining SEPP and the concerns by the resident objectors. Road safety and the need for upgrading of the road through the provision of new creek crossings and passing bays were common concerns, and the question of whether the financial contributions to be made over the life of the mine would meet the cost of the upgrading and maintenance were raised. The socio-economic justification of the proposal was questioned, and the impact of increased heavy traffic use of the road on the adjacent property values was raised. The possibility of effects on water supplies was a concern and the possible effects of dust, particularly on lucerne, was an issue. Concerns were also expressed about blasting and the danger of silica in fine dust. Restoration/rehabilitation at the end of the mine life was also raised.

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(2) White Box Yellow Box Blakely's Red Gum Woodland includes those woodlands where the characteristic tree species include one or more of the following species in varying proportions and combinations - Eucalyptus albens (White Box), Eucalyptus melliodora (Yellow Box) or Eucalyptus blakelyi (Blakely's Red Gum). Grass and herbaceous species generally characterise the ground layer. In some locations, the tree overstorey may be absent as a result of past clearing or thinning and at these locations only an understorey may be present. Shrubs are generally sparse or absent, though they may be locally common." 34 The distribution of the community extends beyond New South Wales into both Victoria and Southern Queensland. 35 Despite the very large area occupied by the community at the time of European settlement, the Scientific Committee found that the criteria for listing as an EEC were satisfied and in para 8 of the Final Determination stated that: "White Box Yellow Box Blakely's Red Gum Woodland has been drastically reduced in area and highly fragmented because of clearance for cropping and pasture improvement. Austin et al. (2000) found the community had been reduced to less than 1% of its pre-European extent in the Central Lachlan region. Comparable degrees of reduction have been documented for NSW south western slopes and southern Tablelands (estimated <4% remaining, Thomas et. al. 2000), and for the Holbrook area (estimated <7% remaining, Gibbons and Boak (2000). Gibbons and Boak (2000) found remnants of woodlands dominated by Eucalyptus albens, E. melliodora and E. blakelyi were severely fragmented. Further remnants of the community are degraded as a consequence of their disturbance history. Some remnants of these communities survive with the trees partly of wholly removed by post European activities, and conversely, often remnants of these communities survive with these tree species largely intact but with the shrub or ground layers degraded to varying degrees through grazing or pasture modification. Remnants are subject to varying degrees of threat that jeopardise their viability. These threats include: further clearing (for cropping, pasture improvement or other development); deterioration of remnant condition (caused by firewood cutting, increased livestock grazing, weed invasion, inappropriate fire regimes, soil disturbance and increased nutrient loads); degradation of the landscape in which remnants occur (including soil acidification, salinity, and loss of connectivity between remnants)." 36 An extensive list of species which characterized the EEC is provided in para 3 of the Final Determination. Within the broad distribution of the community the Final Determination indicates that there is (and would have been prior to European settlement) local and regional variation in species composition related to latitudinal and climatic gradients (para 5) and to topography, drainage and landscape position (paras 3 and 4). The present structure and composition of stands of the EEC will have been influenced by clearing, thinning, grazing and other disturbances (paras 2, 3, 8, 9).

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The issues of expert disagreement 37 The Court heard expert evidence on the vegetation of the Project Site from Mr Elks for Stoneco and from Dr Clements and Dr Smith for NHVSS. Evidence on soils was provided by Mr Cummings for Stoneco and Dr Hazelton for NHVSS. 38 Mr Elks, in the EIS and subsequently, recognized three communities on the Project Site, which he termed Community 1: Yellow Box - Blakely's Red Gum, Community 2: Large-flowered Bundy - Kurrajong, and Community 3: Slender Rats-Tail Grass. 39 Mr Elks was of the opinion that Community 1, found towards the western side of the Project Site, over the mudstones of the Busches formation, satisfied the description of the White Box EEC in the Final Determination. Community 3, found close to Timor Crawney Road and adjacent to the clean water dam is highly modified, but in accordance with para 11 of the Final Determination was accepted by Mr Elks as part of the White Box EEC. 40 Community 2, which occupies most of the Project Site and in which the extraction area would be situated, was not regarded by Mr Elks as being part of the White Box EEC but as a distinctly different community which is not included as an EEC on Part 3 of Schedule 1 of the TSC Act. 41 Dr Clements and Dr Smith were in agreement in recognising three vegetation noda on the Project Site, with boundaries between them identical, or close to, those recognized by Mr Elks (and depicted in Ex P10). They were also in agreement that Communities 1 and 3 were components of the White Box EEC. The point of difference was over the nature of Community 2, which they contended was also part of the White Box EEC. 42 Resolution of these competing positions requires interpretation of the Final Determination and the application of this interpretation to the Project Site. This flows from the definition of "endangered ecological community". An "endangered ecological community" is defined in s 4 of the TSC Act as meaning an ecological community specified in Part 3 of Schedule 1 of the TSC Act. Part 3 of Schedule 1 specifies the listed endangered ecological communities to date, including the White Box EEC, adding after each of the words "(as described in the Final Determination of the Scientific Committee to list the ecological community)". Hence, the inquiry as to whether the vegetation on the Project Site comprises the White Box EEC must be directed to the description in the Final Determination of the Scientific Committee to list the White Box EEC as an EEC. 43 Documents not referred to in the Final Determination of the Scientific Committee to list White Box EEC, such as the White Box Yellow Box Blakely's Red Gum Woodland (Box-Gum Woodland) Identification Guidelines or the White Box - Yellow Box - Blakely's Red Gum (Box-Gum) Woodland fact-sheet, both produced by the NSW National Parks and Wildlife Service, are useful sources of information. However, where the documents describe the White Box EEC in different terms to the description in the Final Determination, or use of the documents results in different outcomes than the outcome that would arise from application of the description in the Final Determination, the description in the Final Determination must prevail. 44 There was agreement that the Project Site fell within the distribution area of the White Box EEC defined in para 1 of the Final Determination, although there was disagreement between Mr Cummings and Dr Hazelton over interpretation of the phrase 'relatively fertile soils'; this will be discussed later. 45 The differences between the vegetation experts were focused on interpretation of para 2 of the Final Determination. 46 EECs currently listed under the TSC Act vary from ones such as the White Box EEC which have wide geographical distribution and occur across a range of environmental gradients (climate, topography etc) and others which have very limited spatial extent and very narrow environmental requirements. The latter can be described in Final Determinations with much greater specificity (for example, Ben Halls Gap National Park sphagnum moss cool temperate rainforest or the Byron Bay dwarf graminoid clay heath community). 47 Final determinations for many EECs have been worded with some generality. The Court of Appeal in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297; (2003) 58 NSWLR 631, 128 LGERA 419, indicated that Final Determinations must be sufficiently certain to enable a citizen to decide whether a specific location supports an EEC, but the inherent spatial and temporal variation in natural communities precluded absolute definitional specificity (VAW (Kurri Kurri) at [231]-[233] per Hodgson JA). 48 The White Box EEC is a "high level" unit in the vegetation classification hierarchy, and includes vegetation described in two alliances, the Eucalyptus albens alliance and the E. melliodora/E. blakelyi alliance described by Beadle (1981) (Final Determination, paragraph 6, Beadle, NCW, The vegetation of Australia, 1981). Inherent, therefore, in the Final Determination is a recognition that although all stands attributed to the White Box EEC must conform to the terms of the Final Determination, within the vegetation captured by the Final Determination individual stands could be classified into a series of communities (para 4 of the Final Determination). Thus there is nothing in the Final Determination to rule out a priori Communities 1 and 2 being part of the same EEC, provided that the terms of the Final Determination encompass both communities, notwithstanding that at some level of analysis Communities 1 and 2 can be distinguished. This is an illustration of what has been referred to as the Russian Doll nature of ecological communities (BJ Preston and P Adam, "Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 - the assemblage of species in a particular area" (2004) 21 Environmental and Planning Law Journal 250 at 252-254; P Adam, "Ecological communities: the context for biodiversity conservation or a source of confusion?" (2009) 13 Australasian Journal of Natural Resources Law and Policy 7 at 33-34 and Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 at [106]). 49 Following joint expert conferencing the issues of disagreement were:

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The tree flora issue 50 Paragraph 3 of the Final Determination lists a number of species characteristic of the White Box EEC, but it is also noted that the total list of species occurring in the White Box EEC (although not all at the same site) will be much larger than those specifically mentioned. It was agreed between the experts that both Communities 1 and 2 contained a similar number of species from the list in para 3. The fact that there were species in the list which had not been recorded in either community was not raised as an issue. It is established that presence of a defined proportion of the species listed in Final Determinations is not required for recognition of EECs: Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 per Talbot J at [103-104] and VAW (Kurri Kurri) per Spigelman CJ at [7]. 51 Paragraph 2 of the Final Determination states that the White Box EEC "includes those woodlands where the characteristic tree species include one or more of the following species in varying proportions and combinations - Eucalyptus albens (White Box), Eucalyptus melliodora (Yellow Box) or Eucalyptus blakelyi (Blakely's Red Gum)". Thus not all these three species need be present to qualify an area as part of the EEC, and it is not required that any of the species to be dominant. It was agreed by the experts, and was observed by the Court on the view, that Eucalyptus albens occurred within the area mapped by Mr Elks as Community 2 and that the occurrences included both mature trees and regenerating juveniles. E. albens was not the most abundant eucalypt in Community 2, that position being taken by E. nortonii, but it was present. 52 Both E. nortonii and Brachychiton populneus (Kurrajong), which together were the most common trees in Community 2, are included in the list of characteristic species in the Final Determination for the White Box EEC. 53 The nature of the tree cover of Community 2 is thus compatible with the Community being part of the White Box EEC.

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The shrub issue 54 Paragraph 2 of the Final Determination states "shrubs are generally sparse or absent, though they may be locally common". 55 Mr Elks drew attention to the presence of the number of shrubs recorded from Community 2, and in particular to the presence of a dense patch of the shrub Santalum lanceolatum (Sandalwood) in the southeast of the proposed extraction zone. He argues that, in consequence, Community 2 did not satisfy para 2 of the Final Determination. 56 Twenty seven of the ninety five species listed in para 3 of the Final Determination are shrubs, so that the mere presence of a number of species of shrubs in Community 2 does not disqualify the community from being part of the White Box EEC. What then is the intent of the qualifier "locally common"? The various references in the Final Determination to spatial variation within the White Box EEC, permit the occurrence of patches of shrubs within the community while conforming with the description. 57 If floristic composition was being assessed by use of quadrats then, depending on the size of the quadrat, the location of the quadrats and the size of the patch of shrubs, at the individual quadrat level, the data could suggest shrub dominance. However, the single quadrat would be unrepresentative of the vegetation of the stand, although illustrative of part of the range of variation in structure and composition of the stand. 58 As is indicated in the Final Determination, in some parts of the total range of the White Box EEC there has been extensive clearing such that only small, isolated stands remain. In that circumstance an individual stand may be so small, and be essentially homogeneous, so that determining whether its structure and composition was originally part of the wider variation in a larger stand of the White Box EEC could be difficult and there could be unresolvable uncertainty about assignation to the White Box EEC; but this is not the situation in this instance. 59 The Project Site is set within the much larger Lot 31, and that in turn is set within a larger vegetated area, so that "locally" can be assessed within the landscape context. 60 Even within the context of the proposed extraction area, the patches dominated by shrubs occupy a limited extent, and this is still the case if the whole area mapped as Community 2 is considered. At the wider scale of the Project Site, the patches of shrub dominance fall within a description of being "locally common". 61 The occurrence, distribution and abundance of shrubs within the area mapped as Community 2 is compatible with Community 2 being part of the White Box EEC.

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The presence of dry rainforest 74 Included within the mapped Community 2 are a number of small patches dominated by the fig Ficus rubiginosa. Dr Clements contended that these are examples of a dry rainforest community, the presence of which may possibly indicate the local occurrence of deeper soils, although this has not been investigated. Without further investigation at the site and in the broader region it is not possible to decide whether or not these patches occupy a distinct habitat, so deserving recognition as a separate community or whether scattered small groves of figs are a regional feature of the White Box EEC. Nevertheless, the figs were a feature of the site recognized as of significance by the experts in concurrent evidence. Recognizing the patches of fig as a separate community would in the present circumstances be of little practical consequence as the patches are so small and completely embedded within what the Court has decided is an EEC. Conclusions regarding the White Box EEC 75 As discussed above, the various matters raised against the inclusion of Community 2 within the White Box EEC are, on analysis, compatible with categorization as part of the White Box EEC. The occurrence, albeit in small quantity of Eucalyptus albens, and the presence of E. nortonii and Brachychiton populneus and a large number of other species in the list of characteristic species in para 3 of the Final Determination speaks positively in favour of Community 2 being a component of the White Box EEC. 76 Community 2 is a component of the White Box EEC, albeit a local variant with abundant E. nortonii. While ecological communities are not to be regarded as 'super organisms' (P Adam (2009) 13 Australasian Journal of Natural Resource Law and Policy 7 at 19-21), so that variants of ecological communities are not analogous with genotypes of species, conservation of biodiversity encompasses the conservation of the diversity of life at all levels of organisation, which includes variation within ecological communities. 77 The White Box Yellow Box Blakely's Red Gum Grassy Woodland and Derived Native Grassland is included on the Schedules of the Environment Protection and Biodiversity Conservation Act (Cth) 1999 as a Critically Endangered Ecological Community. The description of this Community is largely consistent with that of the White Box EEC as listed under the TSC Act. The consequences of any Commonwealth listing for the proposal are not matters for determination by this Court. 78 By reason of the conclusion that Community 2 is part of the White Box EEC, and the parties' agreement that Communities 1 and 3 are part of the White Box EEC, all of the vegetation on the Project Site comprises the White Box EEC.

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The test for assessing likely significant effect 81 The area proposed to be disturbed is now considerably larger than 0.2 ha, so that the impact needs to be reassessed to determine whether or not a SIS is required. The requirement for a SIS flows from s 78A(8)(b) of the EPA Act which requires that a development application must be accompanied by a SIS if the application is in respect of development on land that "is likely to significantly affect threatened species, populations or ecological communities, or their habitats". The requirement is a jurisdictional fact; satisfaction of the requirement is an essential pre-requisite to granting consent to an application. If a SIS is required, but it has not been prepared, then consent cannot be granted: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [94], [108] (Spigelman CJ); Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [35], [51]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [78]. 82 A number of points may be made about this requirement. First, s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the "development" in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats. An application can, of course, be amended after it is initially lodged. The development proposed, therefore, may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Corowa v Geographe Point Pty Ltd at [50], [51]. In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal. 83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]-[13]; Corowa v Geographe Point Pty Ltd at [57]. 84 Thirdly, the word "likely" means "a real chance or possibility" and "significantly" means "important", "notable", "weighty" or "more than ordinary": Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233 and cases therein cited; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council at [82]. 85 Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s 5A of the EPA Act into account and in particular the factors in the now seven part test in s 5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test: Plumb v Penrith City Council at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; and Corowa v Geographe Point Pty Ltd at [52]. 86 Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 at [11]; Plumb v Penrith City Council at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council at [83]. 87 Of the factors in s 5A(2), four ((a), (b), (e) and (f)) are not applicable to an EEC but the remaining three ((c), (d) and (g)) are applicable and need to be considered.

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100 Furthermore, the statutory evaluative framework has altered. In its current form, s 5A(2)(c) requires evaluation of the likelihood of removal or modification of an area of an EEC placing a "local occurrence" of the EEC at risk of extinction. The former s 5A(c) of the then eight part test required the different evaluation of whether, in the context of the regional distribution of the habitat of the EEC, a significant area of known habitat is to be modified or removed. The yardstick for comparison is quite different. 101 Hence, the evaluative conclusion in cases considering the former s 5A(c) using the regional distribution of the habitat of an EEC may not assist in making the evaluative judgment required under the current s 5A(2)(c) which uses the yardstick of local occurrence of the EEC. This is particularly true for EECs with extensive regional distribution of habitat: the denominator is so large that the area removed or modified by the action proposed (which is the numerator) will inevitably be smaller in comparison, with the result that the fraction or percentage removed or modified will be insignificant. This was the evaluative conclusion in Plumb v Penrith City Council at [44] (7 ha of Cumberland Plain Woodland (CPW) EEC of a regional distribution of 26,724 ha or 0.026%) but not in BT Goldsmith Planning Services Pty Ltd v Blacktown City Council at [80], [82], [87]; Corowa v Geographe Point Pty Ltd at [58], [73] (9000 m² of Swamp Oak Floodplain Forest EEC of an unspecified extent of a regional distribution throughout the North Coast region); and Nambucca Valley Conservation Association v Nambucca Shire Council at [109], [118], [125] (400 m² lost and 2 ha impacted of River Flat Eucalypt Forest on Coastal Floodplain and Subtropical Coastal Floodplain in Forest EECs of a regional distribution of 800 - 1400 km²). 102 Such a comparison with the regional distribution of an EEC is no longer appropriate for the purposes of s 5A(2)(c). The comparison would need to be with the local occurrence of the EEC, which will be significantly smaller in extent. In Plumb v Penrith City Council, for example, the 7 ha of CPW to be modified or removed was part of a remnant of 629 ha. If this remnant could be considered a local occurrence of CPW, then the quantitative comparison for the current s 5A(2)(c) would be between 7 ha and 629 ha, which is significantly different from the comparison undertaken by the Court under the former s 5A(c) of between 7 ha and 26,724 ha, being the extent of regional distribution of CPW. 103 Where the relevant remnant is smaller in size, if it can be considered to be a local occurrence of the EEC concerned, the quantitative effect of removal or modification will be even more significant. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council at [81], Pain J noted that a high proportion of the remaining CPW is in fragmented patches of varying degrees of quality and that well over half of the patches are likely to be 7 ha or less. If each of these patches could be considered a local occurrence of CPW, a development such as the one in that case which modified or removed 3.86 ha, or the one in Plumb v Penrith City Council which modified or removed 7 ha, could well lead to the conclusion that the local occurrence of CPW would likely be placed at risk of extinction.

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113 Application of the seven part test has resulted in negative answers to the three applicable factors. However, as noted previously, whilst consideration of the seven part test is required in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the seven part test is not the only input into determining the question. Other relevant factors can be taken into consideration. 114 One factor that might be relevant is whether the local occurrence of the EEC in which the action is proposed has features of interest related to individual species in the assemblage, such as the presence of particular threatened species of flora or fauna or the presence of exceptionally large, mature specimens of tree species. The presence of such features of interest might increase the significance of the adverse impacts on the EEC. 115 Another factor that might be relevant is ameliorative measures which reduce the significance of the adverse impacts on the EEC. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council proposals for amelioration for the loss of CPW were advanced, but in the circumstances of the case Pain J did not consider that a proposal to reafforest a nearby area was ameliorative: [at 86]. 116 The present case differs from BT Goldsmith in a number of respects. First, the extraction area will be rehabilitated so that at the end of the extraction and rehabilitation phases both the habitat and community will be present in some form. Secondly, the conditions proposed by Stoneco and the Council contain provisions for the implementation of management plans designed to ensure the enhancement and maintenance in perpetuity of EEC in the Project Site. These plans allow for ongoing review and adaptive management. These conditions provide sufficient assurance that the adverse impacts of the proposal will be ameliorated such that the overall assessment under s 5A is of no significant impact so that no SIS is required. 117 In contrast to BT Goldsmith, in Nambucca Valley Conservation Association v Nambucca Shire Council, Biscoe J accepted the proposed ameliorative measures would be practical, enforceable and effective, so that the proposed development with the ameliorative measures was not likely to significantly affect the EEC concerned: at [119]-[124].

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119 The Squirrel Glider Petaurus norfolcensis is a vulnerable species listed on Schedule 2 of the TSC Act, whose occurrence on the site was documented by Mr Kendall, fauna consultant for Stoneco in the EIS Vol 2, Section 4, pp 4.81-4.84. Mr Kendall, for Stoneco and Dr Smith for NHVSS prepared a Joint Report (Ex P7) and gave concurrent evidence. 120 Important resources for Squirrel Gliders are tree hollows, for refuge and nest sites, and flowering trees for food (nectar and pollen). 121 Squirrel Gliders were captured (and re-released) within the Project Site by Mr Kendall. Dr Smith expressed doubt as to whether all specimens had been correctly identified, but there was agreement that a number of the animals were indisputably Squirrel Gliders. 122 The experts did not agree on estimated population size. Mr Kendall has recorded Squirrel Gliders outside of the Project Site to the north, and both experts considered that it was likely there was a single population over an area which included, but was not limited to, the Project Site (Ex P7, Points of Agreement 1c). 123 Of particular concern to both experts was the loss of Squirrel Glider habitat in the stockpile and handling area as proposed in the EIS. They agreed (Ex P7, Agreement 1a) that appropriate relocation of the stockpile and handling area could reduce the impact on the Squirrel Glider to a minimum. 124 During the course of the hearing a proposal to substantially reduce the stockpile and handling area, and concentrate activities within the extraction area was presented by Stoneco (Ex P10). 125 The experts agreed that this redesign addressed the concerns in the joint report at least as far as loss of habitat was involved. 126 Dr Smith maintained concerns about disturbance to Squirrel Gliders from noise and dust. Both noise and dust are addressed in the management plans which Stoneco has proposed be prepared, such proposal being secured by the proposed conditions of consent. 127 With the reduction and modification of the stockpile and handling area and the conditions that would apply to a consent, I find the impact on the local Squirrel Glider population proposed is not likely to be significant, so that an SIS is not required.

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The debate between the parties 128 A major part of the debate between NHVSS and Stoneco related to the occurrence (or otherwise) of caverns (measureless or otherwise) and whether or not there are subterranean aquatic habitats for biota. 129 NHVSS argues that there is a likelihood of caves of some kind in the limestone to be quarried, water in the caves even if intermittently, and biota in the caves constituting a groundwater dependent ecosystem. NHVSS argue that lack of full scientific certainty as to the presence of caves, biota and a groundwater dependent ecosystem and the proposal's impact on them should be addressed by applying the precautionary principle. This would entail assuming the presence of caves, biota and groundwater dependent ecosystems in the limestone to be quarried, and evaluating the measures that should be undertaken to prevent or mitigate environmental degradation. NHVSS argue that the proposal should not be approved until further studies have been undertaken as to whether caves, biota and a groundwater dependent ecosystem do in fact occur on the site, their significance and extent, and the extent of any impact. Alternatively, any approval should be subject to conditions requiring redesign of the quarry to drain outwards and use of systems to protect karst systems from polluting drainage. 130 Stoneco argues that the evidence does not sustain a finding that caves, biota and a groundwater dependent ecosystem are present, and hence a finding that there is a threat of serious or irreversible environmental damage. Stoneco submits in these circumstances the precautionary principle is not triggered. Alternatively, if the precautionary principle is triggered, the measures that should be taken should only go so far as is necessary to avoid environmental harm. 131 Resolution of this debate involves an analysis of the evidence on, first, the karst environment to determine whether some form of caves might be likely; secondly, the likelihood of sufficient water in any such caves to support biota; and thirdly, the biota and any groundwater dependent ecosystem that might be present. If caves, biota and a groundwater dependent ecosystem are likely to be present, there is little doubt that quarrying of the limestone poses a threat of serious or irreversible damage to them. The next step in the analysis, therefore, is to determine the measures that ought be undertaken to prevent or mitigate environmental damage.

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137 Both experts were of the view that if quarrying were to proceed, maintaining the integrity of the lower chert band was important, and that fracturing of the chert was to be avoided. 138 The differences between the experts related to the nature and importance of karst features in the limestone. One of the issues that flows from this is the likelihood of there being a groundwater dependent ecosystem, with stygofauna (cave dwelling fauna), within the limestone. The geology experts provided information about availability of potential habitat, but did not discuss biota per se, but it was raised as an issue by Dr Smith. 139 A general definition of karst is: "Karst is a distinct landform shaped largely by the dissolving action of water on carbonate rock such as limestone, dolomite and marble. This process typically occurs over thousands or millions of years, resulting in a variety of surface and below ground features including gorges, sinkholes, underground streams and caves. Karst features interact with the environment to produce complex ecosystems supporting highly specialised plants, animals and micro-organisms." (From Geologic 2. Department of Environment and Climate Change 2008 - at http://www.environment.nsw.gov.au/resources/geodiversity/08141Geologic2.pdf ). 140 A more complex definition is that provided by Klimchouk (Klimchouk, A, "Hypogene speleogenesis: hydrological and morphogenetic perspective", National Cave and Karst Research Institute Special Paper No 1, 2007 at p 5): "'an integrated mass transfer system in soluble rocks with a permeability structure dominated by conduits dissolved from the rock and organized to facilitate the circulation of fluids.' Whether karst is expressed at the surface or not is irrelevant. A karst system can operate in the subsurface without any apparent relationship to the surface, being represented exclusively by underground forms that draw their input water from and discharge their output water to other non-karstic rocks." 141 A feature of karst environments is the presence of caves which typically form in two ways (there are other mechanisms of cave origin, such as marine erosion which can occur in a range of rock types): "● from surface streams finding their way through cracks in the ground and forming underground rivers;

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(c) A pathway through which the water may pass to dissolve the rock in sufficient quantities to form caves". 149 The experts agreed that the limestone was of high purity. Dr Swabey also agreed that the second condition was met. (It should be noted that the Timor Limestone is geologically old, so that it would have experienced very different environmental and hydrological conditions over time, with conditions for cave formation varying over time). Dr Swabey was not convinced that the third condition was met given the presence of the lower chert band, although Dr Osborne, by reference to Klimchouk and his own observation elsewhere, believed that the chert band did not preclude the passage of water (particularly upward) permitting cave formation. 150 On the basis of the circumstances of cave occurrence in limestone deposits elsewhere in the world (see Klimchouk), the presence of factors conducive to cave formation at the site and the presence nearby of known significant caves, Dr Osborne concluded that significant weight should be placed on the possibility of caves occurring within the Project Site. Dr Swabey argued on the basis of the absence of knowledge of the occurrence of caves on the Project Site and the different conditions and lithologies associated with nearby known caves that there was little likelihood of caves occurring on the Project Site, but he could not completely rule out the possibility. 151 Video camera examination within the exploratory boreholes in the Project Site disclose the presence of cracks and small voids. There were few boreholes, so the situation throughout the extraction area is unknown. Stoneco (in response to the Court's Inquiry (No 5) at 7.8) acknowledged that "Limestone forms a single, unbroken unit over a distance of approximately 6km on the western side of the Isis River Valley. Small fractures, cracks, bedding planes and other discrete voids of this nature are present in the limestone at the project site and at other locations in the Isis River Valley …". 152 I find that it is likely that there are small, interconnected voids and fissures in the limestone to be quarried. However, it is highly unlikely that there are large caves of a size comparable to Moore's Lake Cave. The likelihood of biota in caves 153 If there are voids and fissures within the limestone, with available water, could they contain organisms? Neither Dr Osborne nor Dr Swabey felt qualified to comment on this matter. Dr Smith, for NHVSS did suggest that it would be possible, based upon the scientific literature. However, Dr Smith had not carried out any sampling or made any direct observations, and the investigations carried out in preparation of the EIS had not considered stygofauna. 154 The issue having been raised, even on the basis of limited information, it is necessary that it be given serious consideration. The Court drew the parties' attention to some recent literature on stygofauna and requested that, if considered appropriate, they make submissions. The literature was: * Gibert, J et al, "Groundwater ecosystems: human impacts and future management", in Polunin, N V C (ed), Aquatic Ecosystems, Trends and Global Prospects, Cambridge University Press, 2008, pp 30-44.

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Hancock, P J and Boulton A J, "Sampling groundwater fauna: efficiency of rapid assessment methods tested in bores in eastern Australia", (2009) 54 Freshwater Biology 902. 155 The parties each availed themselves of the opportunity to make written submission on the literature, but did not seek to adduce further evidence. 156 Caves provide habitat for a diversity of organisms. Photosynthetic organisms are absent, except close to cave entrances. Food chains are based on organic material falling or being washed into caves from terrestrial ecosystems or production by chemoautotrophic bacteria. The faunal component of a cave system may be classified as troglofauna (those species occupying dry voids and caves) and stygofauna in wet (at least intermittently) systems. 157 One of the major developments in ecology in recent years has been increasing recognition of the diversity and extensive distribution of subterranean organisms. These include microorganisms which have now been found at considerable depth in voids in a diversity of rock types and macroscopic organisms (some of which are nevertheless very small) living in water filled interstices and larger voids and fractures in a variety of rocks but particularly in limestone. These macroscopic organisms collectively constitute the stygofauna of which those obligatory dependent on living in water are stygobites (Humphreys, W F, "Aquifers: the ultimate groundwater - dependent ecosystems", (2006) 54 Australian Journal of Botany 115 at 115-116). 158 Stygobites are taxonomically very diverse, although many have convergent morphologies (Humphreys, 116). In Australia, stygobites are often members of old lineages and often have restricted geographic distributions (Humphreys, 116). 159 Stygofauna are difficult to sample (Hancock, P J and Boulton, A J, "Sampling groundwater fauna: efficiency of rapid assessment methods tested in bores in eastern Australia" (2009) 54 Freshwater Biology 902 at 913-914), so that recording the distribution of species and their abundance, and the delineation of assemblages is in its infancy. 160 Within Australia the majority of studies of stygofauna have been conducted in Western Australia (Humphreys, 118), but there have been sufficient studies to document the presence of stygofauna in eastern Australia (Humphreys, 119; Hancock and Boulton, 903). 161 No members of the stygofauna have been listed as threatened species in NSW, and the paucity of studies would currently make it difficult to assess status against the relevant criteria. If stygofauna were to be listed in NSW it would be under the threatened species provisions of the Fisheries Management Act 1994 as the aquatic nature of the species renders them illegible from consideration under the TSC Act. 162 A number of stygobites have been described as new species from Moore's Lake Cave, whether these are locally restricted endemics or are more widely distributed but under sampled is currently unknown. 163 NHVSS argued for the likely presence of stygofauna in aquifers which would be affected directly or indirectly by the proposal. Stoneco argued that there are no data to suggest the presence of stygofauna within the project site and that there is no basis for extrapolation from Moore's Lake Cave or any other location. 164 Stoneco did accept, however, that "[s]mall fractures, cracks, bedding planes and other discrete voids of this nature are present in the limestone at the Project Site and at other locations in the Isis River Valley, providing pathways through which troglofauna may pass" and "It is therefore likely that any troglofauna present within the site are not unique to it, and that they will, be found elsewhere in the Timor limestone" (in response to the Court's Inquiry (No 5) at 7.8). 165 Stoneco argued (Response No 5 Section 8) that there is unlikely to be groundwater (and, hence, no stygofauna) within the volume of limestone to be extracted, and proposed a revised condition (in proposed condition S1.12) to monitor any impacts on groundwater below the level of the extraction zone. 166 NHVSS (in their further submissions in response to Stoneco) rejected Stoneco's conclusions. NHVSS pointed out that Stoneco regards groundwater as being within fully saturated rock, disregarding the internal drainage system within the karst, and also pointed out that the lack of evidence is not evidence of absence but may be due to the paucity of investigations. 167 There are limited data on either karst or fauna from the site so that the debate between the parties was necessarily at a high level of generality invoking possibilities rather than probabilities. Adopting the taxonomy of Regan et al. (Regan, H.M., Colyvan, M. and Burgman, M.A, "A taxonomy and treatment of uncertainty for ecology and conservation biology", (2002) 12 Ecological Applications 618 at 619-622), the Court is faced with both epistematic uncertainty (uncertainty associated with knowledge of the state of a system) and linguistic uncertainty which arises from properties of the scientific vocabulary (for example, one of the elements of linguistic uncertainty in this matter is associated with the different definition of "cave" argued for by NHVSS's and Stoneco's experts). Both forms of uncertainty are inherent in discussion of many environmental issues.

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168 'Possibility' and 'probability' are used in Stoneco's submissions in a general sense rather than statistically. Probability can be considered as a continuum and "possibility" in this context implies likelihoods toward the low probability end of the continuum. In the present matter, no numerical values can be assigned to probabilities of occurrence of either particular karst features or biota. However, this is not necessarily because the probabilities are very low, but may simple reflect the lack of appropriate investigation. 169 There was agreement (see [164]) that there are voids and conduits through the limestone. Even if they are above the saturated zone they will permit the movement of water. On the view the Court was shown the site of a spring emerging from the limestone. At the time of the view there was no water flowing, but it was agreed that flow occurred following sufficient rainfall. On the view the Court was also taken to a locality north of the project site where an active spring was situated. Rain falling on the surface would percolate into the underlying limestone where it would be able to move through cracks and fissures both vertically and laterally, and some of this water might emerge in springs. 170 Water flowing through the cracks, which when dry may provide habitat for troglofauna, would provide conditions appropriate for micro-organisms and larger members of a stygofauna, even if intermittently. On the basis of studies elsewhere referred to in the literature mentioned in [154], it is likely that there is a biota associated with wet phase conditions in the voids and fissures. 171 The composition, spatial extent and conservation significance of any such biota is currently unknown. It is not known whether any of the species would be capable of being determined to be threatened, or whether the assemblages(s) of species could constitute threatened ecological communities. However, they would certainly be a component of indigenous biodiversity and one of the ESD principles in s 6(2)(c) of the Protection of the Environment Administration Act 1991 requires "that conservation of biological diversity and ecological integrity should be a fundamental consideration". 172 Stoneco pointed out that there is no statutory requirement in NSW to consider either troglofauna or stygofauna. The Director General's requirements did not specify the need for any study or discussion on of either such fauna or its habitat. Nevertheless, if there is biota within the limestone, it becomes a biodiversity consideration. The absence of any specific requirements from the Director General does not mean that the potential for occurrence of biota can be ignored, and having been alerted by Dr Smith's evidence as to the potential for biota to be present in the limestone to be quarried, the Court, exercising the functions of the consent authority on the appeal, can seek to inform itself further about relevant matters. 173 It may be that in the past, consent authorities, including the Court exercising the functions of consent authorities on appeal, may have granted consent to limestone quarries without any consideration of biota within the limestone. This reflected the understanding of the issues at the time. With increased knowledge comes increased likelihood that some form of biota will be found to be present; the relevant matters to be considered evolve over time: see Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 at [56]. 174 Stoneco (Submissions 28(b)(i)) argued that there is merely a possibility of the presence of biota, and a possibility is insufficient to engage the precautionary principle. I do not agree. 175 In Hoffman Homes v Administrator, 961 F2d 1310 (7th Circuit 1992), the US Court of Appeals (7th Circuit) vacated an administrative penalty the US Environment Protection Authority ("EPA") had imposed on Hoffman Homes for filling an isolated wetland that the EPA found provided suitable habitat for migratory birds but for which there was no documented evidence of actual usage by migratory birds. The Court of Appeals held that the EPA did not have jurisdiction under the Clean Water Act over intrastate, isolated wetlands or under the commerce clause to regulate filling of such wetlands. Manion CJ held that mere potential use by migratory birds of the wetland was insufficient to ignite the commerce clause: at 1320.

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182 The measures adopted should also be proportionate to the threat of environmental damage. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs, and the seriousness and irreversibility of the threat: Telstra Corporation Ltd v Hornsby Shire Council at [167]. Considerations of practicability must be taken into account: at [169]. The cost consequences of increasing levels of precaution must be evaluated: at [171]. There should be an assessment of the risk-weighted consequences of various options: at [172] and [173]. 183 In the circumstances of this case, I consider that the appropriate and proportionate response to the threat of environmental damage to biota within the limestone is to implement a step-wise or adaptive management approach. This would involve imposition of conditions of consent requiring monitoring linked to adaptive management. 184 Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a "suck it and see", trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved. 185 The imposition of regimes for monitoring and adaptive management as an application of the precautionary principle was accepted as appropriate in Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1 at [35] and Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [58] and discussed in Telstra Corporation Ltd v Hornsby Shire Council at [163]-[165] . 186 In Zia v WAPDA PLD 1994 SC 693 the Supreme Court of Pakistan was considering a proposal for construction of an electricity grid station where the latest research into the potential hazards of electromagnetic field had not been taken into account. The Supreme Court adopted as a precautionary measure the appointment of an expert commissioner to report on the likelihood of threats and to suggest variations to minimise any danger in Zia at pp 325, 334. Adoption of adaptive management for the life of a project represents an extension of the approach adopted in Zia. 187 The conditions of consent requiring monitoring and adaptive management would operate over the life of a project (and, in the case of rehabilitation, beyond it). Over this period there are likely to be changes in technology, understanding of issues and the environment (for example in 30 years time climatic conditions might be different from those currently prevailing). An adaptive management regime provides the potential for addressing changes without creating a requirement to seek formal amendment of conditions. 188 A draft cave discovery protocol has been developed by the experts for NHVSS and Stoneco to address management issues if caves (in the broad sense) are discovered during extraction (see Schedule 3 of the proposed conditions). However, this protocol would only operate after some damage had already occurred. Given that there will not be absolute certainty as to what might be revealed by blasting and quarrying, there is a need also to develop and implement measures to assess the limestone for caves, voids and fissures, and any biota in them, in advance of blasting. 189 The detail of the pre-blasting assessment protocol will need to be developed. The parties should be given an opportunity to address the Court on the protocol and the conditions to be imposed requiring implementation of the protocol. In basic terms, the protocol will need to identify the process for successive investigation of areas to be quarried, probably by drilled cores. The core holes will need to be examined for presences of cracks, fissures, large voids and water and sampled for biota, both stygofauna and troglofauna. The protocol may need to address frequencies of sampling and the criteria for implementation of measures up to and including closing the operation. There will need to be agreed courses of action depending on the findings from sampling. It may be economic, efficient and effective for certain aspects of the pre-blasting assessment protocol to be integrated with, or to use mechanisms or personnel proposed in, the cave discovery protocol.

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Consistency with zone objectives 190 Exercising the functions of the Council as consent authority on the appeal, the Court must be satisfied that the proposal is consistent with the relevant zone objectives of the Rural "A" zone laid down in the LEP applicable to the Project Site (cl 9(3)). The proposal is for the quarrying of the natural resource of limestone on the Project Site. The development is permissible with consent in the Rural "A" zone. The proper development of the natural resources, including minerals (which includes limestone) is a general aim of the LEP. Where by its zoning land has been identified as generally suitable for a particular purpose, weight should be given to that zoning in the resolution of a dispute as to the appropriate development of a site: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117]. 191 The Project Site is used for grazing, but its productivity is low having regard to its physiographic and edaphic features and native vegetation cover. For the operating life of the quarry, the extraction area of the Project Site would not be able to be used for grazing. However, after rehabilitation and revegetation, that area would be able to be used for grazing again. In a broader context, the proposal will not affect to a material extent the productive and efficient use of rural land in the zone for agricultural purposes. I am satisfied that the carrying out of the development is consistent with objectives (a) and (b) of the Rural "A" zone. 192 The type of development proposed, and its intensity, is a permissible development in the Rural "A" zone and is appropriate having regard to the characteristics of the land and the rural environment. The development does generate the demand for upgrading of the Timor-Crawney Road and the bridges and culverts on the road. However, the Council states that it has made provision for the cost of providing these public amenities and conditions of consent are proposed for developer contributions to recoup the cost. I am satisfied that the carrying out of the development is consistent with objective (c) of the Rural "A" zone. 193 In relation to objective (d) of the Rural "A" zone concerning the natural resources of the Shire, the Project Site comprises the White Box EEC and habitat of the Squirrel Glider, as well as possible subterranean caves, biota and a groundwater dependent ecosystem. The proposal as modified, minimises and mitigates the adverse impacts on these components of the natural resources of the Shire. Viewed in a spatial and temporal context, I consider that the development is consistent with objective (d) of the Rural "A" zone. Objective (d) cannot be read too literally, otherwise no development permissible in the Rural "A" zone would be approved. All development would have some degree of adverse impact on the natural and scenic resources of the Shire. A common sense approach needs to be adopted. In this case, having regard to the particular features of the development as modified, the proposed conditions on which it would be carried out and the proposed ameliorative measures, the natural resources of the Shire that comprise the White Box EEC, the Squirrel Glider and their habitat, and any possible caves, biota and groundwater dependent ecosystems, will be conserved for the Shire, notwithstanding the potential loss in the particular area of extraction for the period of the operating life of the quarry.

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Development principles in rural zones 194 Clause 10 of the LEP establishes general principles to apply to development applications in rural zones. Clause 10(1)(a) and (b) refer to the agricultural uses of land. Although no maps of land suitability and capability were shown to the Court, no suggestion was made by any party or the resident objectors that the land has such high agricultural capability that it should not be developed. 195 Clause 10(1)(c) addresses the existing rural and scenic character of the Shire. While a quarry will change landforms, the topography and location of the quarry and surrounding features are such that the quarry will not cause an unacceptable visual impact from the road or indeed any dwelling. The existing rural and scenic character will be unaffected. 196 Clause 10(1)(d) is not applicable as the proposal is to allow the proper recovery of a valuable deposit of extractive material. 197 Clause 10(1)(e) and (f) require the consent authority to consider traffic issues and the cost to the Council of providing and maintaining public amenities and services. The Council has indicated commitments to upgrading the road infrastructure so as to provide for the transportation of limestone product from the site. Provided these commitments, which are specified in the proposed conditions, are met then the Court is satisfied that the proposal is consistent with the zone objectives. Compatibility of proposal with other land uses 198 Clause 12 of the Mining SEPP requires consideration of the compatibility of the proposal as an extractive industry with other land uses in the vicinity. The development will not have any significant impact on the uses of land outside of the Project Site. Proposed conditions will ensure that off-site impacts, such as noise, vibration and dust, will be regulated to acceptable standards. Traffic and road safety issues are also able to be satisfactorily addressed. The evaluation and comparison required by cl 12 between conflicting uses does not arise.

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Residents' concerns 200 The resident objectors raised a number of concerns. Concerns about adequacy of the road and road safety have been addressed by the Council and the proposed conditions provide for both upgrading the infrastructure and implementation of a traffic management plan. 201 Effects on water supplies will be monitored through proposed condition 1.12. Dust and blasting issues are proposed to be addressed by monitoring and the operational plan for the quarry. The Court was provided with advice indicating that concerns about potential risks from the release of fine particles of silica into the air were allayed. 202 The quarry site will be rehabilitated. While the rehabilitation plan is yet to be developed, conditions should be imposed to require a rehabilitation plan which will address the concerns of residents. 203 Questions about the socio-justification for the quarry, and the effects on property values were raised, but no evidence was presented. While the residents may have legitimate concerns, in the absence of testable information, they cannot be taken in account. 204 Mr McIntyre's specific concerns about proximity to his dwelling house will be addressed at the stage when the grant of a Mining Lease is being considered by the Minister. This may result in a redrawing of the Mining Lease boundary so as to exclude the access road adjacent to the Timor Crawney Road, thereby complying with s 62 of the Mining Act which requires a setback of 200 m from Mr McIntyre's dwelling house. The location of the quarry itself would not alter, so the basis for his concerns might remain, but technically the problem will have been solved. The access from the quarry to the Timor Crawney road was also of concern to Mr McIntyre. The EIS's description of the access road was more of the nature of a concept plan and more detail would be needed before construction. A condition of consent should require submission and approval by the CounciI of detailed plans showing the access road and its intersection with the Timor Crawney Road.

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(c) The quarry pit will drain outwards and will not collect water." 207 The stands of Xanthorrhoea glauca and specimens of Ficus rubiginosa on the Project Site are distinctive and valuable features and ought where practicable be conserved. To a large extent the extraction area avoids the stands of Xanthorrhoea glauca and it should be possible for internal roads to avoid the stands. Some specimens of Ficus rubiginosa may occur in the extraction area and it is not practicable to conserve these on pillars of rock surrounded by a quarry. I consider it will be sufficient for a provision to the effect of subpara (a), but not (b), to be included as an operative general condition, perhaps after condition S1.24. The parties can address the Court on the precise wording, if contested. 208 The outwards drainage of the quarry pit was recommended in the evidence by Dr Swabey, Stoneco's cave expert, in order to prevent pollution of subterranean aquifers. DECC, in its response to the EIS (Ex C1, tab 28, p 9), recommended that management practices, risk assessment and pollution mitigation should be undertaken on the assumption that a groundwater dependent ecosystem is present in the karst aquifer below the proposed site. Requiring outward drainage of the quarry pit is consistent with this recommendation. I do not consider it is necessary to make this a deferred commencement condition but rather it can be included as a requirement in the operational conditions. I note that NHVSS propose a new condition S1.12B to this effect as well as modifications to condition S1.39 proposed by Stoneco and the Council. NHVSS's proposals are appropriate. In addition, the conditions for a soil and water management plan ("SWMP") in Schedule 4, such as an additional requirement of the SWMP in condition S4.3, should be amended to require outward drainage of the quarry pit. 209 The other set of deferred commencement conditions proposed by NHVSS is in condition S1.1B requiring Stoneco to submit to the Council a mining operations plan and various management plans. The requirement for submission of such plans is appropriate but I consider it need not be a deferred commencement condition but can be instead an operational condition. 210 Accordingly, I do not consider NHVSS's proposed deferred commencement conditions should be imposed, although aspects of them can be made part of the operational conditions as discussed above. 211 General condition S1.2 specifies the documents in accordance with which the development is to be carried out. NHVSS proposed adding to the list three documents: the plan identifying the revised location of the stockpile and handling area; Stoneco's response to the RTA information request dated 30 January 2009; and Stoneco's response to DECC's submission dated 6 February 2009. NHVSS also adds these documents to the paramountcy provision in condition S1.2.2. I consider it is appropriate to add these documents to the condition. I accept NHVSS's proposed condition S1.2. 212 Conditions S1.3 to S1.6 are agreed between the parties. 213 Condition S1.7 is appropriate, however, it would benefit from being linked to condition S1.33. The latter condition proposes upgrading of bridges and roads before quarrying, and hence haulage of product, can commence. 214 Condition S1.8 is agreed. NHVSS proposes minor wording changes to condition S1.9.1 which should be accepted. 215 Conditions S1.10 and S1.11 are agreed by the parties but could be improved by being linked to the conditions requiring preparation and implementation of a soil and water management plan. These latter conditions in Schedule 4 require periodic review of management plans and adaptive management. This process may result in the need for stricter erosion and sediment controls and surface water criteria. Conditions S1.10 and S1.11 should be modified to require implementation of any improvements in controls and criteria over the life of the project. 216 Condition S1.12 deals with groundwater monitoring. Stoneco and the Council have suggested an improved condition requiring three groundwater monitoring bores in response to the Court's concern as to the inadequacy of the previously proposed condition that had only one monitoring bore. The Council suggests that any recommendations arising out of the groundwater monitoring protocol required by the condition be incorporated into the Mining Operations Plan and Soil and Water Management Plan. This is appropriate. However, NHVSS submit that even the improved condition is still inadequate. 217 The intent of condition S1.12 is to monitor and manage conditions below the lower chert band. There is no proposal to excavate or impact directly, the geological strata of the lower chert band or below. Indeed, condition S1.37 prohibits excavation of the lower chert band. However, there was concern that quarrying operations above the lower chert band potentially might impact on groundwater below the lower chert band and any groundwater dependent ecosystem (GDE) biota that might there exist. Condition S1.12 establishes a procedure for monitoring of any impact of the proposed quarry on the groundwater and GDE biota. 218 The condition first specifies the process for selecting the location of the three monitoring bores. This includes a qualified hydrologist and GDE expert selecting and reporting to the Council on the location of the monitoring bores (S1.12.3) having regard to the purposes for which the monitoring bores are to be used (S1.12.1) and the criteria for selection of the location of the monitoring bores (S1.12.2). The Council must approve the proposed location (S1.12.4). 219 Stoneco is to develop and have approved by the Council a protocol for sampling GDE fauna (S1.12.5). The condition currently refers to GDE fauna only. I consider that the sampling should be extended to GDE biota and the condition should be amended accordingly. Similar changes should be made to other references to GDE fauna elsewhere in condition S1.12. The sampling protocol for fauna can be developed in accordance with the principles referred to in Hancock and Boulton but consideration will need to be given to whether different procedures should be followed for other GDE biota. Any variations to the sampling protocol approved by the Council must be justified and approved by the Council (S1.12.6). 220 Monitoring and sampling is required to commence no later than 3 months before quarrying operations commence (S1.12.7). I consider this period is too short to allow for seasonal variations in groundwater levels or quality or in GDE biota. Unless an adequate period is allowed, the historic, baseline data will be incomplete and meaningful comparison with data collected after quarrying operations commence may not be possible. My initial view is that a period of at least 12 months should be provided for so as to cover all of the seasons. However, I will allow the parties to address on the precise period that should be selected. 221 The condition specifies the mechanisms and intervals for monitoring (S1.12.7A and S1.12.7B). 222 The results of the monitoring and sampling of groundwater and GDE biota are to be reported in writing to the Council at quarterly intervals (S1.12.8). For the first 2 years of testing, each quarterly test report is to be accompanied by a statement from a GDE expert detailing the results and their significance and recording the expert's concerns, if any, arising from the monitoring and sampling, including any apparent, actual or potential impact of any reduction in water quality on GDE biota (S1.12.8). If the GDE expert reports concerns, Stoneco is to engage a qualified hydrologist to review the concerns and make recommendations about the manner in which quarrying operations should continue so as to address the concerns (S1.12.9). 223 After 2 years of monitoring and sampling, Stoneco may (but is not required to) engage a GDE expert to review the sampling data set and make recommendations about whether the sampling frequency may be reduced or should be increased and whether the sampling parameters should be varied. The GDE expert's report is to be submitted to the Council for determination on the recommendations (S1.12.10). 224 The cumulative results/data of the monitoring and sampling is to be reported in the Annual Environmental Management Report (AEMR) (S1.12.11). This is to be repeated in each AEMR for each year of the operating life of the quarry. The AEMR is to include statements from a qualified GDE expert and hydrologist. The GDE expert is to review the annual data set from the three monitoring bores and make relevant comparisons with the historical data taken from those bores and make findings. The hydrologist is to review the GDE expert's findings and make recommendations about the manner in which the quarrying operations should continue on the site, including recommendations about the way in which any impacts on water quality and on GDE biota should be addressed (S1.12.12). 225 There is no formal mechanism for the approval and implementation of the findings of the GDE expert recommendations of the hydrologist AEMR, that is to say, for adaptive management. This deficiency needs to be addressed in condition S1.12, and confirmed in condition S5.2 dealing with the AEMR. 226 Providing the modifications I have noted are made, I consider this condition S1.12 will be adequate. 227 NHVSS proposes two new conditions. Condition S1.12A proposes a regime for storage of fuels to prevent pollution on site and of any karst aquifer below the Project Site and a prohibition on storage of explosives on site. These would seem to be appropriate precautionary approaches consistent with the recommendation of DECC. However, Stoneco and the Council can address the Court if they wish to propose an alternative approach. 228 Condition S1.12B expands on NHVSS's proposed condition S1.1A(c) for outward drainage of the quarry pit. I have already found this approach is appropriate. The condition should be accepted as well as including the proposal for outward drainage in the soil and water management plan conditions. 229 Conditions S1.13 to S1.19 are agreed between the parties. 230 NHVSS proposed amending condition S1.20 to require the sealing of all roads inside the Project Site and not just the intersection of the site access road with Timor-Crawney Road for a distance of 20m and the covering of trucks transporting material both within the quarry site and from the premises. In the absence of evidence supporting the more onerous and costly condition proposed by NHVSS, the condition should remain in the form proposed by NHVSS and the Council.

[125]

231 Condition S1.21 proposes a biodiversity offset for the loss of White Box EEC. Originally this was assessed to be 0.2 ha but would need to be revised to 6 ha in accordance with my findings earlier in the judgment. Condition S1.21 therefore needs amendment as proposed by NHVSS. The process for proposing and securing the offsets is set out in conditions S1.21.1 to S1.21.4. NHVSS express concern as to the uncertainty of the process. Having regard to the fact that the area of the biodiversity offset will need to be increased significantly from 0.2 ha to 6 ha, and this may raise the issue of the availability of suitable land, Stoneco should have an opportunity to address the Court on the certainty and implementation of this process for a biodiversity offset. In addition, as the proposal for a biodiversity offset included in conditions S1.21.1 to S1.21.4 was settled in consultation with DECC, and under condition S1.21.3 DECC must consider and accept the proposed biodiversity offset prior to Stoneco clearing any vegetation, Stoneco should also refer the issue to DECC to give it an opportunity to provide further comment if it chooses. 232 NHVSS also propose additional requirements dealing with loss of hollow bearing trees and replacement of habitat (proposed condition S1.21.5- S1.21.6), care of fauna during clearing (proposed conditions S1.21.7-S1.21.8), replacement of Yellow Box, White Box and Blakely's Red Gum trees removed (proposed conditions S1.21.9-S1.21.10) and the washing of vehicles and machinery to prevent import of weeds and pest species (condition S1.21.11). NHVSS based these additional requirements on the Council's initial conditions before they were subsequently amended. I consider proposed conditions S1.21.5 to S1.21.8 and S1.21.11 are appropriate. Condition S1.21.9 and S1.21.10 are unnecessary if appropriate rehabilitation of the quarry site is undertaken in accordance with other conditions of the consent. NHVSS appropriately corrected a typographical error in condition S1.21.12. 233 Conditions S1.22 to S1.24 are agreed.

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

At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (33)

Cited By (48)