Ralph Betts and anor v Gosford City Council [2003] NSWLEC 217 | Case summary

45 In any Class 4 proceedings concerning the status of the consent, this letter would be relevant on the Court's exercise of discretion; and in the exercise of the Court's discretion, the evidence of objections to the development from adjoining neighbours might also be relevant. 46 In view of our findings below on other aspects of the consent and of the proposed modifications, this appeal will be dismissed. Accordingly, we do not need to express any concluded view on the status of the consent or decide what course of action we would take, if we were otherwise minded to grant the modification application. For the purpose of this appeal, we shall assume (without deciding it) that the consent has not lapsed. 47 Nevertheless, insofar as condition (b) required the submission of a plan showing the method of working the site, it was an important condition, bearing in mind also that there was no other plan incorporated in the consent. A plan approved by the Chief Town Planner could perhaps have shown the location of certain proposed works to be carried out at a sufficient distance from Mr Lynch's house so as not to adversely affect his amenity. 48 It would certainly have been within the compass of condition (b) for an approved plan to have shown the method of working the site so as to comply with the other conditions of this consent. If there had been such a plan, it may have reduced or eliminated some of the disputed ways of complying with the other conditions of the consent. For example, there were significant differences of opinion between Mr Chestnut and Mr Curtis concerning the quantity of material that could be extracted in accordance with the conditions of consent (pars 98 and 99 below). 49 It is not appropriate that condition (b) simply be deleted and the other changes requested by the applicant made to the consent. As discussed in more detail below, the adoption of the applicant's plans for working the site (set out at figures 1.3, 1.4, 1.5, 3.3, 3.4, 3.5 and 3.6 of the s 96 modification report) would result in a development substantially different from the smaller-scale development envisaged by the other conditions of consent, particularly conditions (c), (e), (f) and (g). Condition (c) - buffers at boundary fences and watercourses 50 Condition (c) required a method of operation so that "No disturbance is to take place within 20 m of any boundary fence nor within 20 m of either bank of any watercourse . " There are two elements of this condition. Buffers at the boundaries 51 The first element of condition (c) required that "No disturbance to take place within 20 m of any boundary fence." 52 Two aerial photographs taken in 1954 were in evidence as was a 1:4000 orthophotomap dated 1977 (compiled from aerial photographs taken on 16 November 1976 and validated by limited field work in 1976). Several further aerial photographs subsequent to the date of the original consent were also in evidence. Mr Curtis gave evidence that he was unable to detect any boundary fence-line from any of the aerial photographs. On our inspection of the site, the original gate at the entrance to the former driveway to the site was pointed out to us, together with the remnants of a fence on either side of it. The former driveway is shown on the plan Annexure A hereto. 53 We are of the opinion that fences and fence-lines would not necessarily be seen on the aerial photographs, having regard to the height from which the photos were taken and the presence of trees near the boundaries. Whether there were fences along the boundaries of Lot 2 in 1979 cannot be determined with sufficient certainty on the evidence. 54 However, we consider that the first element of condition (c) should be construed in a purposive fashion, taking into account the nature of the development that was approved and the other provisions of the consent. Taking a purposive approach, the words boundary fence should be construed as being a reference to the any boundary of Lot 2. It could be inferred that the purposes of this element of condition (c) were: · for the northern and southern boundaries - to provide vegetated screening to neighbouring properties; · for the western boundary - to provide vegetated screening from Wisemans Ferry Road; and · for the eastern boundary - to provide, along the downhill boundary, vegetated screening to the neighbouring property, as well as a vegetated filter strip similar to the purpose of the 20 m wide strips along the banks of any watercourse referred to in the second element of condition (c). 55 Thus, this first element of condition (c) should be construed as prohibiting any extraction or associated works, such as bunds, taking place within 20 m of any boundary of Lot 2. 56 It is clear from the view, and from Figure 1.2 Existing Operations contained in the modification application, that the present quarrying activities are being undertaken within 20 m of the eastern boundary of the property by the use of what is described as Pond 1. The future extraction plan Exhibit A at 1.2.3 on page 3. states: During Stage 1, Pond 1 will be filled with sediment from the wash plant and decommissioned, then dewatered and rehabilitated. The levels of the land within this part of the 20 m buffer have been raised above what would have been the natural ground levels. 57 In addition, along the southern boundary (for approximately the easternmost third of the boundary), a bund has been constructed which is depicted (but not described) in Figure 1.2. We walked along the top of part of this bund on our inspection of the site. It is clear from the diagrams following in Figures 1.3 and 1.4, representing stages 1 and 2 respectively of the Extraction & Progressive Rehabilitation Plan , that the proposed future quarrying activities intend to rely on this bund. This bund is constructed within the 20 m buffer along part of the southern boundary of the property. 58 Figure 1.5 depicts stage 3 of the Extraction & Progressive Rehabilitation Plan . It shows the intention that the continuing proposed extractive activities, as they move further to the west into what is marked as the Future Development Area , will preserve only a 10 m buffer strip along the southern boundary of the site between the south-western corner of the property and the present end of the bund. In addition, Figure 1.5 also makes it clear that stage 3 of the Extraction & Progressive Rehabilitation Plan envisages that only a 10 m buffer strip would be retained along the frontage of the site to Wisemans Ferry Road. 59 The existing works and proposed future extractive industry works within 20 m of the eastern, southern and western boundaries of the Lot 2 are in conflict with condition (c) of the consent. Even though the works within these boundary buffers are not extensive when compared with works elsewhere on Lot 2, the works within the buffers take on greater significance because of their proximity to adjoining properties and to the public road. Consequently, we are satisfied that the proposed modified development, on account of the changes along the eastern, southern and western boundaries, would not be substantially the same as the development in respect of which the consent was granted. Buffers along Watercourses 60 The second element of condition (c) is that "No disturbance is to take place…within 20 m of either bank of any watercourse . " As will be seen below, we consider that this element of condition (c) and condition (g) are the most important conditions of the consent, leaving aside condition (b). The proposed modified development involves a radical departure from more confined development envisaged by this second element of condition (c). 61 The second element of condition (c) uses the words any watercourse. However, the use of the word watercourses in conditions (g) and (i) suggests that the framers of the original consent considered that there was more than one geographic feature which might be regarded as a watercourse and was located on Lot 2 DP 10982. 62 Four elements in the evidence enable the identification of one such geographic feature. First, we do not consider it inconsistent with the decision in Winn to have regard to Annexure A hereto for the purposes of establishing that the original applicant identified a geographic feature, which he described as a "creek", running from roughly north-west to south-east across the southern half of the property. 63 Second, Mr Chestnut interpretation's of the orthophotomap was that there was a creek on the subject land, which he showed on a plan, a copy of which is attached to this judgment as Annexure B . 64 Third, Mr Czeref marked on the orthophotomap where he interpreted would be the location of the commencement of a depression across Lot 2. It was also his evidence that this marking on the orthophotomap was consistent with Mr Chestnut's depiction in Annexure A. 65 Fourth, Mr Lynch marked (on Figure 1.2 in a copy Appearing as Appendix A18 to Mr Chestnut's statement of evidence. of the first applicant's s 96 Consent Modification Report) the location of what he described as a "creek" which flowed before the existence of quarry. The evidence of Mr Lynch, although not precisely identical with the other three evidentiary elements described above (which elements are almost coincidental), is broadly consistent with these other elements. Mr Lynch's lack of precision can be understood in light of the facts that the plan which he was using was one relating to the existing quarry operations rather than any photographic or topographic depiction of the site and that Mr Lynch did not profess any expertise of this type but was relying on his memory of the state of the site some 25 years earlier. 66 This identification of a "creek" is also consistent with the 1:25,000 topographic Gosford map which includes the site. This map, although printed in 1988, is based on aerial photography undertaken in 1982 and field revision in 1984. This map shows a quarry on the site together with a water feature (which Mr Czeref suggested might be the quarry's freshwater pond) together with a blue drainage line which, on Mr Czeref's interpretation of the map's key, should be read as an "intermittent watercourse" . 67 From the view, it was obvious that nothing now remains, on the site, of the abovementioned "creek" or "intermittent watercourse". However, during the course of view, we were able to observe where a watercourse probably continued eastward from the eastern boundary of the site (see also par 78 below). 68 Both Mr Chestnut and Mr Czeref gave evidence that, located above the northern end of the "creek" shown on Annexure B, was what was variously described as a sedge land or hanging swamp. Mr Chestnut also gave evidence that he identified, from the 1954 aerial photo of the site, a continuation of the creek upstream to the north-west from this hanging swamp area. Mr Czeref's interpretation of these features from the orthophotomap was that this continuation was not present. On balance, while we accept Mr Chestnut's depiction of a creek as shown on Annexure B hereto, we are not satisfied that his interpretation of an extension of this feature into the adjoining land to the north should be adopted. The absence of a creek or intermittent watercourse above the hanging swamp on the subject site is consistent with Annexure A and with Mr Lynch's evidence. 69 Mr Chestnut and Mr Czeref also each gave evidence about the method of interpretation of the orthophotomap and how contour lines are interpreted to show the juxtaposition of spurs and re-entrants with an appropriate pattern of re-entrants indicating the possibility of a drainage line or watercourse. Several possible patterns of this nature appear on the orthophotomap generally to the north-east of the "creek" identified above. However, there is insufficient evidence to say that these re-entrants were themselves watercourses which also flowed eastward. 70 We are satisfied as to the existence as at the date of the original consent of the geographic feature described by Mr Fagan as a "creek" (Annexure A) and identified by Mr Chestnut (Annexure B). We further need to consider whether this feature should be regarded as a watercourse for the purposes of the original consent. 71 Ms Duggan referred us to the remarks of Sheahan J in Mitchell v Vella [1998] NSWLEC 250. where His Honour said: 86. In Gartner v Kidman (1961-62 ) 108 CLR 12 ("Gartner"), Windeyer J surveyed the cases and writings on "watercourses". His Honour quoted a passage from Angell on Watercourses, 5th ed. (1854) as follows (at 26): "A watercourse consists of bed, banks and water ; yet the water need not flow continuously; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water, which, at certain seasons is dried up, and those occasional bursts of water which in times of freshet or melting of ice and snow descend from the hills and inundate the country." 87. Windeyer J then said (at 27): "when .... rights and obligations relating to occasional flooding by surface water are the subject of legal discussion the depressions which provide the natural course or outlet for such waters may be called watercourses. But the law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams." 88. The meaning of "waterbody" for the purposes of Schedule 3 EPAR was considered by Bannon J in Narrambulla Action Group Inc v Mulwaree Council & Ors (1996) 40165 of 1995, 15 November 1996 ("Narrambulla"). Bannon J referred to Gartner and to Knezovic v Shire of Swan-Guildford (1968) 118 CLR 468 (" Knezovic") where Barwick CJ said (at 475): "...[i]t is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation." 89. Bannon J in Narrambulla determined that the relevant site in that case "just does not measure up to the definition given by Barwick CJ....At best it can be classified as a drainage line with gullies to the East and West, together with intermittent ponds and flood plane (sic), where water flows are rare intervals, under the influence of rain." 90. Mr Davison also relied on an unreported decision of Lee J in the NSW Supreme Court, Latta v Klinberg (No 8280 of 1976, 1 July 1977) ("Latta"), in which Lee J said (at 21): "This was very much a case where the 'channel' in which the stream would flow after heavy rain, if it flowed, was not clearly defined over quite a considerable area except by the fact that the natural lowest point of the land would be its course, but a watercourse requires `identifiable margins' which are in fact its banks and bed, and observable margins which are really no more than the natural surface of the ground rising gently on either side do not constitute banks and bed". 72 Mr Czeref's evidence was that he interpreted the 1977 orthophotomap as depicting a depression or series of depressions in the ground along what was an intermittent drainage line which would have operated at times of significant rainfall. He was unable to detect any banks or defined feature which he says would be appropriate indicia of the presence of a watercourse in this location. He agreed, however, that a depression of 1 m might not be picked up by the 2 m contours. 73 Mr Czeref also examined a blown up version Forming part of Annex K to Mr Curtis's statement of evidence. of the aerial photograph of the site taken on 12 September 1994. This photograph showed the disturbed area of the quarry in a location generally consistent with that inspected on the view - although the workings may be slightly differently located. Mr Czeref was unable to detect the presence of the hanging swamp within Lot 2 on this photograph. With respect to this, Mr Lynch gave evidence that he was concerned about the diversion of water by a bund which had been constructed along the eastern boundary of his property with the quarry. Mr Curtis's statement evidence (at p 12) indicates that such a diversionary bund was constructed in approximately 1987. We accept that the construction of this diversionary bund would have had the effect of blocking upslope sources of water to the hanging swamp. Consequently, nothing useful can be obtained on this issue, in our view, from the 1994 aerial photograph. 74 Because of the complete destruction by the quarrying activities of any element of the identified "creek" within the site, we are left with limited and conflicting evidence on whether or not the feature had identifiable banks and a bed within which a stream flowed. 75 On the one hand, Mr Czeref's interpretation of the orthophotomap was that there were merely a series of depressions with none of the identifiable features, which would constitute a watercourse. 76 On the other hand, Mr Chestnut's evidence of interpretation of the orthophotomap is that there were identifiable features, including spurs and re-entrants depicted by the contour lines, which enabled him to conclude that the "creek" was in fact a watercourse. 77 Three other elements provide support to Mr Chestnut's interpretation in preference to that of Mr Czeref. Two of these come from the descriptions by the initial applicant and Mr Lynch of the identified feature as a "creek". Whilst, obviously, each of these was merely a lay assessment of what the observer regarded was present when he looked at the feature, the ordinary English usage of this expression is more consistent with a watercourse. 78 The final element comes from what was observed on the view and was referred to in the evidence of Mr Chestnut. Mr Chestnut indicated the line where the downstream continuation of the watercourse debouched from the eastern boundary of the property. There were clear and identifiable changes in the vegetation pattern along this line consistent with the existence of banks. The topography was more consistent with what was required for the presence of a watercourse than with a feature of the characteristics described by Mr Czeref. 79 On balance, we are satisfied that the "creek" depicted by Mr Fagan on Annexure A, observed by Mr Lynch, and identified by Mr Chestnut, was a watercourse for the purpose of conditions (c), (g) and (i) of the consent. 80 The consequence of concluding that there was a watercourse across part of the site is that the quarrying activities were required by condition (c) to be carried out so as not to disturb the land within 20 m of each bank of the watercourse. 81 The watercourse and surrounding buffer zones, which were required to be kept undisturbed, have been entirely removed by excavation. Within the northern area of the former watercourse and buffer zones (in the vicinity of cell 3), the depth of excavation at the present time is about 27 m below the former natural ground levels at the date of consent. Compare Figure 1.2 of ex. A and A21 of ex. 1, and see footnote 1 above. The proposed future excavation of this cell would be up to a depth of about 55 m below the former natural ground levels. Compare Figure 1.5 (stage 3) of ex. A and A21 of ex. 1 82 In our opinion, the development that has already occurred is radically different from the development for which consent was obtained, because of the failure to comply with condition (c) of the consent. The proposed modified development will be even more extensive and substantially different from the limited development envisaged by the consent. Condition (d) - removal of timber 83 Nothing of substance arose from this condition in these proceedings. Condition (e) - sequential working areas 84 This condition required that no area larger than 0.5 ha is to be worked at any one time, consequently the procedure should be 0.5 ha being prepared for extraction, 0.5 ha being worked and 0.5 ha being rehabilitated . By letter dated 14 June 1979, the original applicant effectively sought a variation from the council of this condition so that each of the 0.5-ha elements in this condition became 1-ha elements. By letter dated 2 July 1979, the council indicated that it did not have any objections to such variation. However, it seems that the present modification application should be tested against the original terms of the 9 February 1979 consent, not against any subsequent modifications to this consent . 85 It is clear that the present physical state of site (described at pars 8 and 9 above) is in substantial non-conformity with either the original condition (e) or the amended condition (e). 86 The application to modify the consent sets out, from page 3, the proposed future extraction plan for the quarry. It shows, diagrammatically, in Figures 1.3, 1.4 and 1.5, the proposed future stages 1, 2 and 3 of the extraction plan. Self-evidently from the diagrams, none of these stages is even broadly consistent with this condition of the consent. None of these stages is given a projected timeframe in the modification application but their carrying out, from the nature of the works in the description of the extraction plan clearly envisages an extended period. The extraction plan also notes that, after the conclusion of the future stage 3, quarrying would continue beyond the present lease area toward the main road frontage. With respect to these future activities, the only details provided in the modification application for dealing with the sequence of activities is in the following terms: It is proposed that extraction and progressive rehabilitation proceed in the same manner as previous stages, with quarry cells developed progressively and settling ponds within completed quarry cells dewatered and rehabilitated as they fill with sediment. Virgin excavated material will be used to provide firm capping material and topsoil, as neither of these materials is available on site. 87 The extraction plan, for each of the three stages dealt with by it, together with the description of what might occur in the future development area of the stage 3 plan, does not demonstrate any attempt to bring the operations of the quarry to any sequence of activities which may have a significant resemblance to those required by condition (e). Consequently, we are not satisfied that the proposed modified development would be substantially the same as the originally approved development. Condition (f) - commencement of extraction 88 This condition required that "all extraction should commence at the highest point and moved [sic] in a downhill direction." If this condition is construed as requiring commencement of extraction at the highest point on the site, that has clearly not occurred. Similarly, the order of extraction proposed in the modification application makes it clear, in figure 1.5, that future extractive operations would move to the west, uphill through the location of the house that is presently constructed on the site, and thence progressively toward the main road boundary. It was submitted on behalf of the first applicant that this condition should be interpreted as merely imposing a downward extraction process from the point where such extraction commenced. 89 However, accepting the evidence of Mr Chestnut, once having begun at a particular point, and having moved downhill, we do not think that that quarrying could then recommence at a much higher point than the first point and then move downhill to the first point. Such a procedure would also seem to be in conflict with condition (g). 90 It is not possible from the evidence to determine precisely where quarrying commenced, although it appears to have been on the lower half of Lot 2 The proposed method of quarrying proposed is fundamentally in conflict with what was envisaged by condition (f). 91 By moving uphill, the proposed extraction activities would move closer to the houses and groundwater bores of four adjoining neighbours who purchased their properties after February 1979. If the extraction area had commenced higher up, these neighbours would have been able to decide whether or not to buy so close to the quarrying. Mrs Wilson said that if the quarrying were to now move uphill, her family would have to sell their home. 92 Condition (f) has to be read with the other conditions. Condition (f) would also have had to be read in conjunction with an approved plan showing the method of working the site as required by condition (b). Condition (g) - run-off; 0.2% gradient of channels to undisturbed watercourses; progression of work downslope 93 This condition reads: " Graded banks (maximum channel gradient 0.2%) to be constructed immediately above the working site and thereafter every 60 m downslope as work progresses; all banks to outlet into the undisturbed watercourses . " 94 Mr Chestnut interpreted this condition as operating to require such a graded bank to be constructed above the working area so that run-off would be prevented from flowing through that working area. It was his interpretation that a sequential downhill operation of the quarrying, when coupled with protection of the watercourse discussed above in the context of condition (c), together with its buffer strips, would have provided an appropriate water pollution protection regime by the standards of the time. 95 He also gave evidence to the effect that there was a significant limitation on the depth of excavation that was possible in accordance with this condition. If the land outside the buffer zones of the watercourse were lowered too much, then graded banks with a channel gradient of 0.2% would not be able to drain runoff by gravitation to the watercourse. 96 We note that it was also Mr Curtis's evidence (p 6 of ex. C) concerning the 20 m buffer strips on either side of the bank of any watercourse that: In relation to erosion and sediment control such buffers act as a filter strip providing treatment of sediment laden run-off . 97 Mr Chestnut's evidence included a calculation of the maximum permitted extraction pursuant to the consent of 460,000 m3 of material. He explained in oral evidence that this was derived from his consideration of the contours on the orthophotomap; the area which he believed the consent encompassed; and what he understood to be the practical method of implementing conditions (b), (c), (f), (g) and (j). This methodology was described as the Chestnut methodology. 98 During the hearing, Mr Chestnut was asked if he would undertake a recalculation on the same basis but applying his methodology to the totality of the site. He did so and produced calculations which, based on this methodology, showed that extraction from the whole of the site would result in a permissible extraction of 380,000 m 3 . 99 Mr Curtis was asked to consider the results of this further calculation and concluded that, with a redesign of the graded banks required by condition (g), a permissible extraction of 740,000 m 3 would result if the Chestnut methodology was applied. However, he made it expressly clear that in undertaking these calculations, he did not accept the validity of the underlying methodology. 100 It was Mr Curtis's evidence that this condition should be read as relating to the rehabilitation process and not something to be applied sequentially during the quarrying process itself and not intended to act as a limitation on it. 101 In addition, it was claimed on behalf of the first applicant that Chestnut methodology would not have resulted in an economically viable quarry. However, we note in passing that the original applicant, Mr Fagan, was apparently content to have a low-scale operation, having regard to the plan he submitted to the council (par 26 above) showing the area of extraction to be 4.047 ha, to a depth of only 6.096 m. In any event, consistently with the position we have adopted relation to extraneous material in the interpretation of the terms of the consent, we do not consider that we should imply into the conditions factors relating to economic viability. 102 Without needing to choose between the alternative and significantly different results of application of condition (g) pursuant to the Chestnut methodology, we are satisfied that this methodology, however applied, is an appropriate interpretation of this condition. We reject Mr Curtis's view that condition (g) applied only at the rehabilitation stage. Had the interpretation contended for by the first applicant been intended, condition (g) would have been very differently worded. 103 The proposed future method of extraction envisaged by the modification application (par 86 above) is clearly inconsistent with this interpretation of condition (g). A significantly greater quantity of material (between 2 million tonnes and 4 million tonnes) would be extracted under the proposed modified consent than the quantities (at pars 98 and 99) calculated by either Mr Curtis or Mr Chestnut (using the Chestnut methodology). We are therefore satisfied that, with respect of this condition, the proposed modification would result in a substantially different development to that permitted by the consent. Condition (h) - slope of batters 104 This condition required that all batters are not to be steeper than 20% in gradient. In their evidence, Mr Chestnut and Mr Curtis construed the word " batter " as requiring significantly different constraints on quarrying activities because of this condition. It was Mr Chestnut's view that this condition should be construed so as to require the gradient limitation to apply to the working faces of the quarrying activity as well as other slopes. 105 It was Mr Curtis's opinion that this condition related to the finished slope of rehabilitated areas after quarrying had been completed and moved on. It was also Mr Curtis's evidence that this was the ordinary use of the word "batter" as he would apply it in his day-to-day professional activities. 106 There is some doubt as to whether the meaning of the word "batter" was properly the subject of expert evidence. "The construction of an ordinary word…is not a matter of expert evidence." Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 at 31 per Hutley JA. 107 We are of the opinion that the word "batter" in condition (h) applies to the graded banks mentioned in conditions (g) and (i). It could also be applied, less commonly, to the working face of an extraction area. 108 Nevertheless, we have accepted the calculations in condition (g) above that were made on the assumption by the experts that the extraction areas would have "near vertical upslope quarry faces" (ex . 10). Condition (i) - stockpiling of topsoil 109 Nothing of substance arose from this condition in these proceedings. Condition (j) - prevention of water ponding 110 This condition provides that all disturbed areas are to be re-shaped such that no waterponding occurs on the extraction site . The respondent urges us to construe this condition as containing an absolute prohibition on the occurrence of waterponding on the site. In contrast, the first applicant submits that this condition requires that there should be no waterponding after the reshaping has been undertaken as part of the rehabilitation process. We consider that the first applicant's contention is probably the appropriate one. Condition (k) & (l) - landscaping and landscape maintenance 111 Although it was the evidence of Mr Chestnut that these conditions would not reflect contemporary good practice, it is agreed by the parties that nothing arises from them in these proceedings concerning the satisfaction of the relevant test pursuant to s 96. However, Ms Duggan submitted that the rectification of defects in these rehabilitation conditions proposed by the modifications in the application were a factor to be taken into account as contributing to the public interest being in favour of approving the modifications when testing the application against s 79C of the Act. Condition (m) - bank guarantee 112 Although the earliest documentation available from the council's file only dates satisfaction of this condition from 1985, it is agreed by the parties that nothing relevantly arises in these proceedings. The discretion to approve Introduction 113 The site is zoned 1(a) Rural (Agriculture) under IDO 122. The table of uses for this zone show that extractive industries are permissible with consent. IDO 122 defines extractive industry in a fashion that clearly encompasses not merely the present quarrying activity but also the ancillary processing activities being carried out on the site. 114 Ms Duggan submitted to us that, as the first applicant's construction of the present consent permits quarrying across the totality of the site without limitation as to depth, the only fundamental effect of the modification application is to modernise the conditions - including the importation into the consent of better environmental and rehabilitation management of the site. She submitted that, as a consequence, this is not only in the public interest in a broader sense but is also in the interests of the immediate neighbours of the quarry. 115 We do not accept Ms Duggan's submission, because we have held that there were limitations in the consent: there was to be no disturbance to the vegetation or bushland that existed within the 20 m wide zone either side of the banks of the watercourse or within the 20 m boundary buffers. Also, conditions (c) and (g) in their practical application would have placed some limitation on the depth of excavation outside the buffer zones. We do not agree with the first applicant's submission that the proposed modified development would be in the interests of the neighbours. Overall, a development carried out in accordance with what we have held to be the development envisaged by the conditions of the consent would be likely to have had significantly less adverse impacts. The broader public interest 116 Ms Duggan submitted that there was a broader public interest to which we should have regard relating to the supply of sand for the Sydney and Central Coast building markets. In support of this proposition, one of the appendices to Mr Chestnut's statement of evidence is a draft report from the New South Wales Department of Mineral Resources entitled Supply and Demand for Construction Sand in the Sydney Planning Region . The report is dated May 2001. In describing the various sand resources available within the region, the draft report comments that the present site produces about 50,000 tonnes of sand per annum and has reserves of about 4 million tonnes . It also notes that no additional reserves have been identified adjacent to this quarry. The draft report also discusses, when dealing with the Somersby Plateau as a potential source for medium-term satisfaction of this demand, a number of constraints that would act as barriers to the establishment of new quarries in this area. The draft report also identifies the Somersby Plateau as one of the areas which have the potential to become reliable, long-term sources of construction sand within the planning region . 117 In support of the broad conclusions contained in this draft report, Ms Duggan tendered a letter dated 14 August 2003 from the Acting Manager, Industrial Minerals and Land Use of the New South Wales Department of Mineral Resources. The relevant portion of this letter reads: The Somersby Plateau contains extensive resources of friable sandstone. Owing to land use and environmental constraints, however, much of this resource is unlikely to be available for extraction thus restricting the potential to extend existing operations or develop new sand extraction operations in the area. In the Departments opinion the quarry makes an important contribution to the construction sand supply of the Central Coast, this amount of material would otherwise have to be obtained from neighbouring areas which would lead to increased transportation costs which would ultimately have to be borne by the consumers, the resulting increased truck traffic, will also have attendant adverse impacts on the wider community. Furthermore the quarry has the potential to become a supplier of sand to the Sydney market. Provided that extraction can be undertaken in an environmentally acceptable manner, the department considers Rindean quarry to be an appropriate use of a valuable resource. 118 We accept that there is a broader public interest in the continued availability of the sand resource from the site. Consistent with this, Mr Thompson submitted to us that the council had no desire to close the quarry - merely to have it operate in an environmentally appropriate fashion. On several occasions during the hearing, he indicated that it was the council's view that it was appropriate that the first applicant should submit a new development application accompanied by and environmental impact statement to enable this to occur. 119 The above departmental letter has an important proviso - "that extraction can be undertaken in an environmentally acceptable manner." 120 Section 79C of the Act effectively provides the statutory basis for us to test whether, in fact, the modification application does provide for an operational regime which would satisfy such a proviso. Impacts on neighbours 121 Amongst other things, this section requires us to take into account public submissions concerning the application. There were letters and a petition against the proposed modified development. The petition, signed by 88 persons (most of whom are residents of Somersby), stated that the residents strongly objected to the s 96(2) application to vary the conditions of the development consent. The petition further said that council should be enforcing its original conditions of consent. In addition, we heard oral evidence from three immediately adjoining neighbours. Each of these neighbours had three concerns that related to the expansion of quarrying activities: · visual impacts; · dust pollution; and · impact on groundwater supplies. Visual impacts 122 Although the perspectives from which the quarrying activities are viewed by each of the neighbours differ, their concerns as to visual amenity are broadly similar. They relate to the inadequacy of buffering of the quarry leading to visual intrusion in the near to mid views from the dwellings - this being a greater impact to Mr Lynch and Mrs Wilson than to Mr Pickup. The residents also complain that the removal of vegetation from the site has had the effect of opening up the middle-to-distant view of the freeway. Further, they point to the expected possible life of the quarry of some 40 years as, itself, being an unacceptable timeframe for them to be subjected to this visual intrusion. 123 There would be only partial rehabilitation during stages 1, 2 and 3. The rehabilitation of the proposed large quarry areas (up to 80 m deep, in the future development area of stage 3), near the residents' houses, would be undertaken at the end of the life of the quarry. 124 The original condition of the eastern half of the subject land at the date of the consent was mostly bushland (par 7 above). Because of the failure of successive quarry-operators to observe the requirements of the conditions of the consent, massive changes were made to the landform, as described earlier (pars 8-9), thus causing adverse visual impacts for the neighbours. 125 If the conditions of the consent had been observed, there would have been retained a vegetated and bushland corridor (along the former watercourse and the buffer zones adjoining its banks) running through the central eastern half of the subject land to the eastern boundary. This corridor would have been at least 40 metres wide, stretching for a distance of about 320 m. As well, the vegetation or bushland in the 20-m buffer zones around the boundaries would have been kept in an undisturbed state. Additionally, the implementation of condition (g) would have resulted in a smaller scale operation outside the undisturbed buffer zones. 126 Because the proposed modified development does not appear to adequately deal with the visual impacts, we would not approve the proposed modified development, if that option were available to us. Dust 127 With respect to dust impacts on neighbouring properties, the s 96 consent modification report deals with dust issues as follows: Although there is no dust deposition data for the site, the air quality of the area is considered typical of similar rural environments and is influenced by wind blown dust from agricultural and quarrying activities and from unsealed roads. Dust control measures at the quarry include: · a water truck to suppress dust on unsealed all four roads; · all loads are covered prior to product trucks leaving the site; · speed restrictions apply on-site four roads to minimise dust generation; · water sprays are fitted on the processing plant; · stockpiles of product sand are moist as a result of washing; · rehabilitation of worked areas, visual and noise bunds has been undertaken; and · the vegetation around the site, particularly along the northern boundary reduces the impact of windblown dust of adjoining landowners. The proposed consent modifications will not impact on current dust management practices. 128 It was the evidence of each of the three neighbours that they experienced significant dust nuisance from quarrying operations despite these dust management practices. The dust affected them in two distinct fashions. The first related to dust intrusion into their houses with possible effects on health. Secondly, there was dust contamination of their domestic water supply. Each of them operated by a rainwater tank system that had as its primary source the run-off from the roofs of the dwellings. Each of them also supplemented this water supply, by drawing on a groundwater supply through a bore. The groundwater was used to supplement the tank supply for domestic consumption during the summer or other periods of low rainfall. None of these three neighbours has a first-flush interception system fitted to their harvesting of rainwater. Mrs Wilson indicated that it was not possible for such a system to be fitted to her rainwater collection process. 129 There is no condition of consent that deals with any ameliorative measures which might be required to deal with dust from the quarrying process. It is not proper for us to speculate on what, if anything, may have been required by the Chief Town Planner in a plan pursuant to condition (b). The current Environment Protection Licence Number 11295 of the EPA Contained in the statement of evidence of Mr Curtis (ex. C annex C). deals with dust control with two conditions at 4.03. On the assumption that the EPA conditions have been observed by the operator, it is the evidence of the neighbours that they have not had sufficient effect to eliminate adverse impacts on them. The dust impacts could increase as the quarrying activities move closer to the houses in stage 3. If this were to occur, it would be unacceptable. Groundwater 130 On the evidence before us, there is a degree of uncertainty as to the impact of quarrying activities on the groundwater bores of the neighbouring property owners. 131 The observations of each of the three property owners was that the bores were no longer as reliable as they had been in the past particularly during the summer months. Each of these bores is drilled to approximately 30 m below the surface. 132 Mr Curtis gave evidence that he had had access to the original testing results at the time of the sinking of each of the three neighbours bores. It was his evidence that this was undertaken by what he described as the bailer method. This involved using some form of bailing container to draw water thus giving some calculation on available rate of water extraction from each bore. Mr Curtis also gave evidence that he had caused pump testing to be undertaken of Mr Smith's bore, located near to quarry faces on the subject land. He said that this test showed a low but sustainable 0.1 litres per second. It was his evidence that it was not possible to make a direct comparison between his pump testing and that which had been undertaken by the bailer method. 133 It was Mr Curtis's evidence that there has been increasing development in the catchment above the aquifer and increasing numbers of applications were being made to extract water from it. It was his evidence that bores were now commonly being sunk to 170 m in order to obtain a satisfactory and completely reliable water supply from this aquifer. 134 It was common ground between Mr Chestnut and Mr Curtis that the site is at the eastern edge of the aquifer from which these bores obtained water. It also appeared to be common ground that there were several water-bearing strata which had been intersected by the present quarrying operations and these were pointed out in the quarry face on the view. It was also not disputed that water flowed or seeped out of this edge of the aquifer. As a consequence of this evidence, it follows that the bores of the neighbours are either directly or obliquely upstream in the aquifer from the site's quarry extraction area. 135 What was in dispute concerning the groundwater extraction is the extent, if any, of the impact of removal of large volumes of sandstone in close proximity to these bores. In effect, as we understand the argument, the proposition advanced by the council is that the sandstone effectively acts as a dam which retains water which can be extracted through the bores. On this theory, if the sandstone is removed, the impediment to water flowing out of the aquifer is removed and the water is thus not constrained for potential extraction. The consequence is that the available volume is less and the pumpable head standing in the shaft of the bore is lowered. 136 The evidence on behalf of the first applicant, on the other hand, is that such an effect will be minimal or non-existent and that, because the quarry face is downstream from the bores, there is no impact by the quarry on the rate of replenishment of the bores from the main body of the aquifer. 137 During the course of the view, we were able to observe seepage from the rock faces of the high benches of the present quarrying activities. We also observed fast-flowing water entering one of the detention areas. In his oral evidence, Mr Curtis agreed that this flow of water was a mixture of rainwater plus water from the upper aquifer. 138 This aspect of the case is the one which we have found most difficult to determine, and we are unable to resolve the conflict in evidence on this issue. The issue may need to be reconsidered in the light of additional specialist expert evidence in relation to the claims of the residents, taking into account particularly the proposed large and deeper excavations, where material would be removed closer to the bores of the neighbouring landowners. However, we are satisfied on the unchallenged evidence of the neighbours that the bores provide an essential reserve to top up domestic-consumption water supply, which goes beyond merely water supply for gardening or outdoor use. Town water supply is not available to these properties. There is no evidence before us that it is likely to become available. Conclusion 139 We conclude that there are three significant impediments to approving the application for modification. These are: (1) In the absence of an approved plan in accordance with condition (b) of the consent, we are not satisfied as to what the approved method of working the site was. It is not appropriate to modify the consent by deleting condition (b) and by now approving the applicant's plans in figures 1.3, 1.4, 1.5, 3.3, 3.4 and 3.5 of the S. 96 Consent Modification Report (ex. A). The approval of the applicant's plans would result in a substantially different development from that envisaged by other conditions of the consent. (2) We are satisfied that the proposed modifications are substantially inconsistent with each of the two elements of condition (c) of the consent, requiring no disturbance of the 20-m buffers along the boundaries and along the banks of the former watercourse. As a consequence, the development, which would result if the modifications were approved, would not be substantially the same as that approved by the consent. (3) We are satisfied that the proposed modifications are substantially inconsistent with each of conditions (e), (f) and (g) of the consent, when those conditions are separately considered, and certainly when they are read together. We are further of the opinion that the development, which would result if the modifications were approved, would not be substantially the same as that approved by the consent. 140 We are also satisfied that it would not be appropriate as a matter of discretion to approve the modification application, if that option had been available to us. 141 During the course of the hearing, it became apparent that the statutory requirements for notification of the proposed modifications had not been satisfied. The parties agreed that if we concluded that the appeal should be dismissed, it would not be necessary to adjourn the proceedings to enable the modification application to be re-advertised. Orders 142 Accordingly, the orders of the Court are: 1. The appeal is dismissed. 2. Development Application No 15525/2002 to modify the consent of 9th February 1979 for an extractive industry at Lot 2 DP 10982, 620 Wisemans Ferry Road, Somersby is refused. 3. The exhibits, other than exhibits 1, A and Appendix 3 of D, may be returned.

Ralph Betts and anor v Gosford City Council

At a glance

Court

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Before

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Judgment (25 paragraphs)

Parties

Cases Cited (6)