Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning

Land and Environment Court (NSW)|2005-08-15|Before: Talbot J, Ms J

The Applicant must notify the Director-General and NSW Department of Primary Industries of any changes to that appointment that may occur from time to time.

Construction Environmental Management Plan (CEMP) 10.2 The Applicant must prepare and implement a Construction Environmental Management Plan to outline environmental management practices and procedures to be followed during the construction of the development. The Plan must include, but not necessarily be limited to: a) a description of all activities to be undertaken on the site during construction, including an indication of stages of construction, where relevant; b) statutory and other obligations that the Applicant is required to fulfil during construction of the development, including all approvals, consultations and agreements required from authorities and other stakeholders, and key legislation and policies; c) specific consideration of measures to address any requirements of the Department and NSW Department of Primary Industries during construction; d) measures to ensure navigation and safety on the waterway is maintained during the construction of the aquaculture leases, including notifying the boating fraternity; e) details of how the environmental performance of the construction works will be monitored, and what actions will be taken to address identified adverse environmental impacts; f) a description of the roles, responsibilities, authority and accountability for all relevant employees involved in the construction of the development; g) complaints handling procedures during construction; h) procedures to ensure the occupational health and safety of construction workers; i) the relevant environmental monitoring requirements including those outlined under conditions 8.1 to 8.9 of the consent, inclusive; j) proposed contingency measures that should be implemented should any adverse impacts be identified during construction activities; and k) the Management Plans listed under condition 10.3 of this consent. The following environmental performance issues shall also be addressed in the Plan: i) measures to monitor and control noise emissions during construction; and ii) measures to monitor and manage dust emissions. The Applicant must consult with neighbouring properties in relation to the timing of potentially dust generating activities associated with the construction of the development and take into consideration the reasonable requirements of those affected properties so as to minimise any potential dust impacts. The CEMP must be submitted for the approval of the Director-General no later than one month prior to the commencement of construction works associated with the development, or within such period as otherwise agreed by the Director-General. Notwithstanding, where construction work is to be undertaken in stages, the Applicant may, subject to the agreement of the Director-General, stage the submission of the CEMP consistent with the staging of activities relating to that work.

Construction works associated with any stage of the development must not commence until written approval has been received from the Director-General for that stage. Upon receipt of the Director-General's approval, the Applicant must supply a copy of the CEMP to NSW Department of Primary Industries and Council as soon as practicable. 10.3 As part of the CEMP for the development, required under condition 10.2 of this consent, the Applicant must prepare and implement the following Management Plans: a) an Erosion and Sedimentation Control Management Plan to detail measures to minimise erosion and the discharge of sediment and other pollutants to land and/ or water during site preparation and construction works associated with the land-based site. The Plan must be prepared in consultation with the Department and include, but not necessarily be limited to: i) results of investigations into soils associated with the site, in particular the stability of the soil and its susceptibility to erosion; ii) details of erosion, sediment and pollution control measures and practices to be implemented during construction of the development; iii) demonstration that erosion and sediment control measures will conform with, or exceed, the relevant requirements of the Department of Housing's publication Managing Urban Stormwater: Soils and Construction (1998); iv) design specifications for diversionary works, banks and sediment detention basins; v) an erosion monitoring program during construction and demolition works associated with the development; vi) description of procedures to ensure that the measures implemented to control sediment and erosion on site, are maintained at design capacity at all times; and vii) measures to address erosion, should it occur, and to rehabilitate/ stabilise disturbed areas of the site. b) a Waste Management Plan to outline measures to manage and minimise waste generation and resource consumption during construction of the development. The Plan must include, but not necessarily be limited to: i) identification of the types and quantities of waste that would be generated; ii) description of measures and actions to be taken to minimise waste generated by the construction of the development; and iii) description of how waste would be handled and stored during construction, and reused, recycled, and if necessary, appropriately treated and disposed of in accordance with the DEC guidelines Assessment, Classification and Management of Liquid and Non-Liquid Waste.

Operation Environmental Management Plan (OEMP) 10.4 The Applicant must prepare and implement an Operation Environmental Management Plan to detail an environmental management framework, practices and procedures to be followed during the operation of the development. The Plan must include, but not necessarily be limited to: a) identification of all statutory and other obligations that the Applicant is required to fulfil in relation to the operation of the development, including all consents, licences, approvals and consultations; b) a management organisational-chart identifying the roles and responsibilities for all relevant employees involved in the operation of the development; c) overall environmental policies and principles to be applied to the operation of the development; d) standards and performance measures to be applied to the development, and a means by which environmental performance can be periodically reviewed and improved, where appropriate; e) identification of how employees, contractors, sub-contractors and visitors must be made aware of the environmental performance obligations under this consent; f) management policies to ensure that environmental performance goals are met and to comply with the conditions of this consent; g) details of a program to be implemented to ensure that the aquaculture lease longlines are maintained at a depth of at least 4 metres below the surface of the water, with details provided as to: i) how the depth of the longlines will be determined; ii) the frequency at which monitoring of each lease will take place; and ii) when this is not possible, for example, during cleaning and maintenance operations and how this would be managed; h) details of a maintenance program to be implemented to ensure the aquaculture lease infrastructure is kept in good working order; i) the Management Plans and Protocols listed under condition 10.5 of this consent; and j) the relevant environmental monitoring requirements outlined under conditions 8.1 to 8.9 of the consent, inclusive, with details of contingency measures to be implemented should the results of monitoring indicated that the development has had, or is having an adverse effect on the surrounding environment.

The Plan must be submitted for the approval of the Director-General no later than one month prior to the commencement of operation of the development, or within such period as otherwise agreed by the Director-General. Operation must not commence until written approval has been received from the Director-General. Upon receipt of the Director-General's approval, the Applicant must supply a copy of the OEMP to the DEC, Council, and NSW Department of Primary Industries as soon as practicable.

10.5 As part of the OEMP for the development, required under condition 10.4 of this consent, the Applicant must prepare and implement the following Management Plans and Programs: a) a Water Management Plan to outline measures to control and manage process and waste water associated with the operation of the development. The Plan must be consistent with the information provided in the EIS and additional information provided to the Department by the Applicant on 22 March 2004 and must address any requirements of NSW Department of Primary Industries. The Plan must include, but not necessarily be limited to: i) identification of all major sources that may impact on the quality of the Port Stephens waterway; ii) specification of the water quality criteria as it applies to a particular activity; iii) measures to be implemented to ensure process water is only discharged from the discharge points identified in condition 7.1; iv) procedures for the monitoring of water quality impacts, in accordance with the monitoring program identified in condition 8.1 of this consent; v) a detailed program for cleaning the oysters and associated equipment to minimise the impacts on the water quality of Port Stephens and to ensure the objectives of condition 7.2 can be met. This must include consideration of: i. procedures to be undertaken to minimise the sediment plume that may occur as oyster faming apparatus (including oyster cages and panel nets) are lifted from the water and into the cleaning boats, such as using silt curtains; ii. procedures to be undertaken to minimise the amount of sediment and other particulate matter being returned in the process waters to the Port waters; iii. determination of an appropriate cleaning frequency to meet the objectives of condition 7.2; iv. identification and justification of circumstances in which the cleaning of oysters may be impeded, for example due to the time of year, bad weather or equipment failure; v. procedures to prioritise longlines for cleaning to minimise any sediment plume; vi. implementation of a cleaning logbook/ record keeping system; vi) procedures to be undertaken to collect and/ or treat process water from the floor of the cleaning punts; vii) measures to be implemented and a timeframe for the ongoing investigation and trialling of cleaning operations to minimise the impact of the development on the quality of Port waters; and viii) a contingency plan should monitoring of water quality indicate that the development has had or is having an adverse effect on the quality of waters of Port Stephens. b) a Quarantine Management Protocol to detail measures to manage and minimise the risk of disease outbreaks at the site. The Program must meet the requirements of the NSW Department of Primary Industries, should there be any. The Program must include, but not necessarily be limited to: i) procedures for obtaining oyster spat, particularly to ensure that it is spawned from broodstock originating from the east coast of Australia; ii) details on the routine for examining stock for signs of disease; iii) measures to be undertaken for the isolation of diseased stock; iv) procedures to notify NSW Department of Primary Industries of the discovery of any disease; v) procedures for the disposal and/ or treatment of diseased stock and wastes in accordance with any direction from NSW Department of Primary Industries; vi) measures to be adopted for the sourcing, sterilisation and general management of equipment used in the operation of the development; and vii) measures to be undertaken for the maintenance of the site in a clean and tidy state, at all times. c) a Stock Handling Protocol to detail measures for the management of stock associated with the development including procedures for stock handling and transference regimes; harvesting of stock; and recording and monitoring of the performance of the development, particularly the production of pearls and sales of stock. d) a Waste Management Plan to outline measures to manage and minimise waste generation and resource consumption during operation of the development. The Plan must include, but not necessarily be limited to: i) identification of the types and quantities of waste that would be generated during operation; ii) description of measures and actions to be taken to minimise waste generated during operation of the development; iii) protocols for disposing of any process water used in the treatment of mudworm (and disposal of the mudworms themselves; and iv) description of how waste would be handled and stored during operation, and reused, recycled, and if necessary, appropriately treated and disposed of in accordance with the DEC guidelines Assessment, Classification and Management of Liquid and Non-Liquid Waste. e) a Navigational and Safety Protocol to outline measures to manage and minimise the risk of navigational and safety impacts associated with the development. The Protocol must be prepared in consultation with the NSW Maritime Authority, NSW Water Police, Royal Volunteer Coastal Patrol and relevant local sailing clubs, and must include, but not necessarily be limited to: i) procedures for the notification of the need for assistance or for the provision of assistance to any water craft that may become entangled within aquaculture lease infrastructure; ii) procedures for the provision or exchange of relevant information between the Applicant, waterway users and relevant Government agencies. This may include the provision of information on the location of the leases for relevant water users, details on the activities that can occur on and in the vicinity of the aquaculture leases and information on when sail boat or other races occur; iii) measures to be implemented to notify other watercraft or persons within the vicinity of the aquaculture leases of the presence of such leases, including identifying the aquaculture leases on relevant navigational charts; iv) procedures to consult with relevant user groups, particularly local sailing clubs concerning racing events and regattas; v) procedures for the inspection, maintenance, replacement and any storage of infrastructure to ensure navigation and safety issues are maintained; and vi) procedures for the inspection, maintenance, replacement and mooring of boats associated with the development. f) a Stormwater Management Plan to outline measures to control and manage surface water (including erosion and sedimentation) and stormwater associated with the operation of the land-based site. The Plan must include, but not necessarily be limited to: surface water, erosion and sedimentation management i) measures to be implemented to minimise the potential for erosion from the land-based site during the operation of the development and measures to maintain all erosion mitigating works at, design capacity; ii) demonstration that erosion and sedimentation control measures will conform with, or exceed, the relevant requirements and guidelines provided in the Department's publication Urban Erosion and Sedimentation Handbook, the DEC's publication Pollution Control Manual for Urban Stormwater, and the Department of Housing's publication Soil and Water Management for Urban Development; and iii) measures to rehabilitate erosion-affected areas and areas the subject of excavation, including tree, shrub and/ or cover crop species and implementation. stormwater management i) details of the stormwater infrastructure to be installed; ii) demonstration that the stormwater control infrastructure will conform with, or exceed all relevant requirements and guidelines contained within the stormwater management plan for the catchment, should one exist, or with the DEC's publication Managing Urban Stormwater: Council Handbook should a stormwater management plan for the catchment not exist; iii) description of the procedures for planting and maintaining vegetation along any stormwater channels and detention systems, to minimise the potential for erosion; iv) details of how rainwater will be captured and reused on site, such as through use of rainwater tanks. Consideration must be given to Council's Urban Rianwater Tank Policy adopted by Council on 16 December 2003; and v) description of the procedures for the installation and maintenance of the stormwater control infrastructure, including stormwater pollution control devices. g) a Landscape Management Plan to outline measures to ensure appropriate development and maintenance of landscaping on the site. The Plan should be prepared by a landscape architect and must include, but not necessarily be limited to: i) details of landscaping to be undertaken at the site; ii) maximisation of use of flora species that are native to the locality in landscaping the site, with particular emphasis on plants with low maintenance requirements; iii) a program for the removal of weeds at the site; iv) a program to ensure that all landscaped areas on the site are maintained in a tidy, healthy state; and v) details of all external lighting to be erected at the site. h) a Boat Management Protocol to outline measures for the mooring, refuelling and maintenance of boats associated with the development. Consideration must be given to the management of fuel on the site to minimise the potential for spills and potential contamination resulting from any spills. i) an Infrastructure Maintenance Protocol to outline measures for the storage, cleaning and repair of equipment associated with the development (including, ropes, cages, panel nets etc.) at the land-based site. j) a Noise Management Plan to outline measures to manage and minimise potential noise impacts associated with the operation of the development. The Plan must be consistent with the Plan identified in the EIS and must include, but not necessarily be limited to: i) identification of all major sources of noise that may be emitted as a result of the operation of the development; ii) specification of the noise criteria as is applies to the particular activity, in accordance with the DEC's Industrial Noise Policy (2000); iii) identification and implementation of best practice management techniques for minimising noise emissions from the development, including consideration of boat speeds, boat movements, boat motors, communication between boats, modifications to boats to silence equipment; iv) measures to minimise noise generated during the cleaning operations, including those measures identified in section 6.4.2.4 of the EIS; v) measures to manage any potential noise emissions that may be tonal or intermittent in nature; vi) procedures for the monitoring of noise emissions; and vii) a description of procedures to be undertaken if any non-compliance is detected. 10.6 Within three years of the commencement of operation, and at least every three years thereafter, the Applicant must undertake a formal review of the Operation Environmental Management Plan (OEMP) required under condition 10.4 of this consent. The review must ensure that the OEMP is up-to-date and all changes to procedures and practices since the previous review have been fully incorporated into the OEMP. The Applicant must notify the Director-General, NSW Department of Primary Industries and Council of the completion of each review, and must supply a copy of the updated OEMP to those parties on request.

Incident Reporting 11.1 The Applicant must notify the Director-General and any other relevant Government authority of any incident with actual or potential significant off-site impacts on people or the biophysical environment as soon as practicable after the occurrence of the incident ("initial notification"). The Applicant must provide written details ("written report") of the incident to the Director-General and any relevant Government authority within seven days of the date on which the incident occurred.

11.2 The Applicant must meet the requirements of the Director-General to address the cause or impact of any incident, as it relates to this consent, reported in accordance with condition 11.1 of this consent, within such period as the Director-General may require.

Annual Performance Reporting 11.3 The Applicant must, throughout the life of the development, prepare and submit for the approval of the Director-General, an Annual Environmental Management Report (AEMR). The AEMR must review the performance of the development against the Operation Environmental Management Plan (refer to condition 10.4 of this consent), the conditions of this consent and other licences and approvals relating to the development. The AEMR must include, but not necessarily be limited to: a) details of compliance with the conditions of this consent; b) a copy of the Complaints Register (refer to condition 9.5 of this consent) for the preceding twelve-month period (exclusive of personal details), and details of how theses complaints were addressed and resolved; c) a comparison of the environmental impacts and performance of the development against the environmental impacts and performance predicted in the EIS; d) results of all environmental monitoring required under this consent and other approvals, including interpretations and discussion by a suitably qualified person; e) a list of all occasions in the preceding twelve-month period when environmental performance goals for the development have not been achieved, including any entanglement incidents, indicating the reason for failure to meet the goals and the action taken to rectify and prevent recurrence of that type of incident; f) identification of trends in monitoring data over the life of the development to date; g) a list of variations obtained to approvals applicable to the development and to the site during the preceding twelve-month period; and h) environmental management targets and strategies for the following twelve-month period, taking into account identified trends in monitoring results. 11.4 The Applicant must submit a copy of the AEMR to the Director-General, NSW Department of Primary Industries and Council every year, with: a) the first AEMR to be submitted within twelve months of commencement of operation of the development; and b) the second and subsequent AEMRs to be submitted every twelve months thereafter,

and must be made available to the public upon request.

11.5 The Director-General may require the Applicant to address certain matters in relation to the environmental performance of the development, in response to review of the Annual Environmental Report and any comments received from NSW Department of Primary Industries and/or Council. Any action required to be undertaken must be completed within such period as the Director-General may agree. APPENDIX A - DECLARED DISEASES

The following diseases are declared to be Class A diseases:

a) in relation to finfish: · epizootic haematopoietic necrosis; · infectious haematopoietic necrosis; · viral haemorrhagic septicaemia; · bacterial kidney disease; · epizootic ulcerative syndrome; · infectious pancreatic necrosis; · Aeromonas salmonicida infection; · viral nervous necrosis; · yersiniosis; and · whirling disease;

b) in relation to molluscs; · bonamiosis; · haplosporidiosis; · marteiliosis; · mikrocytosis; · perkiniosis; and · irodviroses;

c) in relation to crustaceans · baculoviral midgut gland necrosis; · crayfish plague; · infectious hypodermal and haematopoietic necrosis; · bacuovirus infection; · yellowhead disease; · white tail disease; and · white spot syndrome virus;

The following diseases are declared to be Class B diseases:

· Northern Pacific sea-star; and · toxic dinoflagellates

The Department of Infrastructure, Planning and Natural Resources (the Department) has an approval role in relation to this development. Part of the proposed works associated with the development are within 40 metres of Protected Waters, therefore a Permit under Part 3A of the Rivers and Foreshores Improvement (RFI) Act 1948 must be applied for and obtained by the Applicant before works in this area may commence. Pursuant to Part 3A of the RFI Act the Department has indicated that it could provide in-principle approval for a permit subject to compliance with the following terms:

GENERAL CONDITIONS

· The location and nature of the operation as shown in the Development Application shall not be altered, except as specified by the following conditions.

· The Permit will be granted for twelve months from the date of formal approval and can be renewed on an annual basis. Any application for renewal shall be lodged one month prior to expiry date.

· The Permit will not be transferable to any other person or company and will not allow works at any other site. The location and nature of any works described in the Permit application shall not be altered.

· A copy of the Permit shall be kept on site at all times and made available to the Department's officers upon request.

· The Permit holder shall notify the Department within 7 days of any change in:

(a) site management; (b) land ownership; and (c) land occupation.

· The Permit will not give the holder the right to occupy any land without the owners' consent or relieve the holder of any obligation which may exist to also obtain permission from Local Government or any other Authorities who may have some form of control over the site of the work and / or the development proposed.

· The works shall not damage or interfere in any way with: (a) vegetation outside the area of the works; (b) the stability of adjacent or nearby waterway bank or bed; and (c) the quality of water in the waterway.

· Any displaced materials are to be stabilised or relocated and made secure so that these materials will not detrimentally affect any waterway or riparian area.

· If in the opinion of an authorised Departmental officer, any work is being carried out in such a manner as it may damage or detrimentally affect any waterway or riparian area, the works considered to be causing or contributing to the problem shall cease upon the oral or written direction of the officer.

· If any of the Permit conditions are breached, the permit holder shall pay the Department a breach inspection fee of up to $500 per inspection. This fee shall be charged for the initial breach inspection and all subsequent inspection until the breach has been rectified to the satisfaction of the Department.

· The stabilisation and progressive rehabilitation of the area, to the satisfaction of the Department, is the responsibility of the Permit holder and owner or occupier of the land.

· The Permit holder and the owner or occupier of the land are responsible for any excavation or removal of material undertaken by any other person or company at this site.

· Erosion and sediment control measures shall be provided for the duration of the works and until the site is stabilised/ rehabilitated.

· Any stormwater discharge from the site shall not result in any erosion or instability of the bank or bed.

· Works are to be designed and constructed such that there is no detrimental change in hydraulic behaviour, causing sedimentation, erosion, reduction in waterway or permanent diversion or pollution of the waterway.

· Any proposed activity or structure shall comply with relevant Australian Standards, Development Control Plans (DCPs), Local Environmental Plans (LEPs), State Environmental Planning Policies (SEPPs) or Regional Environmental Planning policies (REPs) for works of this nature.

· The Permit is issued for the works to be carried out on freehold land. The Permit does not extend to any works:

(a) on Crown Land; (b) by a public authority operating within the lawful activities of its Act; (c) considered to be core activities for mineral extraction and on land subject to a mining lease; (d) located more than 40 m from the top of bank or shore of protected water; and (e) works constructed or installed pursuant to a right exercisable under the Water Act 1912.

· In assessing any subsequent Permit application, the Department will require the following additional information:

(a) An Erosion and Sediment Control Plan prepared in accordance with Council's Erosion and Sediment Control Plan Guidelines and to the satisfaction of the Department. (b) A Vegetation Management Plan prepared for the development by a suitably qualified person in consultation with and to the satisfaction of the Department. The plan is to include details on: - all the vegetation within 40m of the watercourse; - vegetation to be removed and vegetation to be retained; - vegetation proposed for establishment; - the staging of the works; - the establishment of riparian zones using local native endemic species; - vegetation maintenance, monitoring and performance criteria; and - who is to undertake the tasks. (c) A Stormwater Management Plan.

· The structure must be designed and constructed so that it complies with NSW Department of Primary Industries and NSW Maritime Authority's requirements.

· The structure must be designed and constructed to prevent scour of the adjoining bed/banks and undercutting of the structure.

· In demolishing the existing structure, all materials and debris is to be removed off-site and disposed off at an authorised waste disposal facility. No damage is to occur to the bed or foreshore of the estuary.

· The proposed development is adjacent to Crown Land. The development must not impact upon or occupy any Crown Land. Separate approval from the Department of Lands must be obtained for use and occupation of any Crown Land.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426

(2004) 138 LGERA 237

At a glance

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Decision date

Before

Source

Judgment (44 paragraphs)

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Cases Cited (5)