Reavill Farm Pty Limited v Lismore City Council

Vegetation type will be as per guidelines or by direct consultation with appropriate governmental agencies. The sediment extraction from the environmental works will be achieved in a manner that minimises disturbance to the vegetative buffers and will be conducted by Champions Quarry staff. The environmental works associated with the sediment recovery system will be fenced to prevent animal associated disturbances to the vegetative buffers and to the associated sedimentation and measuring apparatus. The buffer tree planting locations may be varied due to the upcoming lodgement of a new D.A. with Lismore City Council. This will significantly enlarge the vegetative buffer zone widths and the extent of planting rows.

68 If I understood his submissions correctly, Mr Robertson asks me to accept that a combination of conditions 26 and 35 of the existing consent (together with the acceptance by the council of the Quarry Management Plan as being in satisfaction of the plan production requirements of those conditions) means that the quarry company can rely on the two elements earlier quoted from the Quarry Management Plan as providing a foundation for an earthen noise attenuation mound, at least as a concept, being something that arises out of and is contemplated by the original development consent. 69 I am unable to accept this submission.

70 Although the acceptance by the council of the Quarry Management Plan may have imported a minor degree of flexibility with respect to how noise compliance was to be achieved and a similar minor degree of flexibility with respect to the plantings and the like, condition 1 still required the development to be implemented in a fashion that was generally in accordance with the plans and documents incorporated in the development consent by virtue of this condition. In particular, I am unable to accept that the concept of barrier emplacements for noise attenuation envisaged by the extract from page 9 of the Quarry Management Plan was required for any implementation of noise control. This is obvious from the Statement of Environmental Effects where, on page 35 and 36, it makes it clear that noise compliance is expected from the ordinary design and operation of the quarry without major noise attenuation works: 4.2.2 Noise issues and control

The main source of noise generation at the quarry is likely to be during the ripping, excavation and loading part of the operation.

The closest noise receptor to the existing quarry is the dwelling located on the land above RL23.8m and approximately 380m to the east of the quarry.

Table No.10 identifies the land on which dwellings are situated within 800m of the quarry. [table omitted]

None of the dwellings on the land identified in Table No.1 0 have direct line of sight to the existing quarry.

The dwelling on Lot 3 DP 588125 (1566 Wyrallah Rd) that has direct line of sight to the existing and proposed quarry is to the northwest and approximately 880m from the quarry.

The nature of the resource and the location and three sided shape of the quarry results in much of the noise from the operation being shielded from most dwellings in the locality.

Machinery working the quarry is required to meet the manufacturer's specifications with respect to their muffler systems, thus reducing the incidence of uncontrolled noise from the operation of the quarry.

Truck movements to and from the quarry will also be a source of noise similar to current agricultural and other truck movements. The use of the quarry, for some 180 days per year is not considered likely to significantly impact on the existing background noise in the locality.

It is considered that the quarry can operate without adverse impact on residents of dwellings in the locality, provided the proposed use is undertaken in accordance with the plan of management.

71 Further, it is clear from these pages of the Statement of Environmental Effects that it was envisaged that the quarry operation would be entirely compliant with relevant noise emission requirements at the boundary with the Woolleys' property, that property being the nearest residential receiver. 72 There is certainly nothing in any of the plans that are incorporated in the development consent by condition 1 that envisages any structure, of any nature whatsoever, in the vicinity of the boundary of the quarry site with the Woolleys' residence. 73 As a consequence, I am satisfied that the need for a major noise attenuation mound, in the vicinity of the Woolleys' residence, arises solely because of the significant and fundamental errors in the original acoustic assessment undertaken for the quarry company. Nothing in the Statement of Environmental Effects or the Quarry Management Plan can, in my assessment, be regarded as either anticipating that inadequacy and providing flexibility to resolve the operational noise issues that arose as a consequence or, in the case the Quarry Management Plan, to respond to the discovery of the fundamental defects in the original acoustic assessment report. 74 Further, pages 32 and 36 of the Statement of Environmental Effects make it clear that the plantings are for screening purposes - including visual screening to a property (1566 Wyrallah Rd) not provided any screening effect by the now proposed mound. The relevant extracts are: It is proposed to plant and establish trees around the outer limit of the excavation to provide a visual buffer to the quarry. The planting will assist in establishing the final rehabilitation use as well as reduce the potential dust emissions. [Page 32]

Potential for visual impacts to the public domain and adjoining land will be minimal due to the location and shape of the quarry, the retention of perimeter walls and provision of perimeter screen landscaping and vegetation regeneration.

The pit walls and shape of the existing quarry will be progressively rehabilitated as the quarry expands westward. The floor of the existing quarry will be used as access to the working area.

There is no direct or clear line of sight to the quarry from the public domain.

The areas proposed for landscape screening providing visual screening of the quarry from adjoining land, particularly from the dwelling on Lot 3 DP 588125 (1566 Wyrallah Rd) to the northwest. The landscape screening will comprise plantings with a variety of local native tree species (refer Table No.9) and retention of vegetation above the quarry work area.

The location, proposed quarry shape, the terrain and proposed vegetation will adequately mitigate visual impact of the proposed quarry expansion. [Page 36] 75 I note, in passing apropos the quotation from page 32, that the modification might be unlikely to perform any significant dust suppression function but, as this aspect was not canvassed during the hearing, I have ignored this point. 76 It therefore follows that my assessment, both qualitative and qualitative, of the proposed modification must proceed on the basis that there is no link with or support for the modification provided by the terms of the plans and documents incorporated in the original development consent by the terms of condition 1 of that consent.

How then should the modification be tested against s96(2)(a)? 77 Stein J in Vasic Pty Limited v Penrith City Council (an unreported decision variously cited as being of the 18th or 24th February 1992), when dealing with the meaning of the words substantially the same development, when considering the then s102 of the Act that: In approaching the s102 assessment exercise one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 78 The process for consideration of proposed modification of development was described by Bignold J in the oft quoted passage from Moto Projects No. 2 Pty Limited) v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, at paras 55 and 56, as follows: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 79 In Moto, Bignold J makes it clear that there are two elements to the required assessment. The first requires a qualitative assessment and the second requires a quantitative one. 80 It is also clear that s 96 is a facultative, beneficial provision. It is to be construed and applied in a way that is favourable to those who are to benefit from the provision: see Moy v Warringah Council [2004] NSWCCA 77; (2004) 133 LGERA 49; (2004) 142 A Crim R 577 per Sperling J from para 80. 81 I approach my consideration of this proposed modification on these bases.

Will the modified development be "substantially the same"? 82 The first matter that I need consider it is whether I have jurisdiction to approve the application pursuant to s 96(2) of the Act. This requires me to consider whether or not that which use proposed as an amendment to the original approved development will result in a modified development that is substantially the same as that which was approved in the first instance. In this context, it is clear that I am to approach my consideration of the modification process on the basis that the opportunity to modify provided by the statute is to be regarded as a beneficial and facultative process. It is also clear that my consideration must be both a qualitative and a quantitative analysis. 83 I now turn to consideration of whether or not the development that would result from approving incorporation of the mound that is now proposed (being the further amended application derived from the additional work by the acoustic, visual impact assessment and landscaping experts) would be substantially the same as the development as originally approved with the at grade vegetative buffer in the vicinity of the quarry pit. 84 I am satisfied that it cannot be so regarded on either a qualitative or quantitative basis. I have reached these conclusions for the following reasons. 85 On the basis of my analysis set out earlier out, I am satisfied, with respect to the qualitative element of the assessment I am required to undertake, the nature of the purpose of the original vegetative buffer (being a buffer for visual screening purposes), is proposed to be significantly changed in its functional purpose from merely a vegetative visual screen to the quarry pit into an earthen mound whose essential and now operationally necessary purpose is not visual screening but the necessity to provide acoustic screening to the Woolleys' residence in order to ensure compliance with the operating noise criteria set by the original conditions of consent (with the visual screening merely being an incidental outcome to the acoustic function of the mound). 86 The drivers in the design of the option C plans (derived from the work of the acoustic experts) that now comprise the amended application were not questions of visual screening but the necessity for the two acoustic experts to reach agreement on what would be the dimensions of the underlying earthen mound structure (and its location) in order to ensure acoustic compliance. 87 The question of addressing what might be the acceptability or otherwise of the visual impact (and the landscaping treatment to be applied to mitigate the visual impact) of the resultant earthen structure came only after definition of its design to satisfy its (now) fundamental acoustic compliance purpose.

88 As a consequence, I am satisfied that the functional nature, that is the qualitative elements of that which is sought to be achieved by this amendment application, is entirely divorced from and alien to that which was the qualitative intention of the original vegetative buffer. This was originally designed to be located proximate to the quarry works and thus to provide partially wrap-around visual screening for those works - not merely screening in the direction of the Woolleys' property but also screening along much of the northern down slope just outside the quarry pit proper, from a point close to the uppermost level of the quarry on its northern side and thence around the outside of the perimeter of the pit proper, as shown on the plan earlier reproduced, through to approximately the centre of the eastern facing element of the pit near the overland eastward discharge from the sediment control structure. Thus the extent of the visual screening provided by the propose mound is significantly different to that envisaged in the Statement of Environmental Effects at page 36.

89 The visual screening that is achieved by the present earthen mound will merely be visual screening from the Woolleys''s property rather than the much broader visual screening that could have been achieved had the original consent being implemented as approved. 90 Moreover, in a quantitative sense, there are quite stark and significant physical differences between that which was approved by the present consent and that which is sought to be approved by the modification application. 91 This is not, merely, a question of location (although there are significant differences that would, at least potentially in my view, warrant a finding that the qualitative variation in location and appearance of the vegetative buffer that was originally approved and the earthen mound with landscaping that is sought to be approved by the modification could not be regarded as being substantially the same as that which was originally approved). 92 However, in my view, the factor that also needs to be added to the significant variation in location and appearance for my quantitative consideration is that, in effect, any earthworks that might have been necessary to establish the vegetative buffer approved by the original consent (if any such earthworks would have been necessary at all) would have been of, essentially, a minor gardening or horticultural scale. 93 Certainly there is nothing that could be inferred from any plan or other document forming part of the original development consent as involving any significant earthworks for the vegetative buffer at all. 94 In comparison, the modification, however, endorses very significant existing earthworks and proposes major additions and alterations to them that, on my very crude calculation, involve multiple thousands of cubic metres of existing material and the addition of further multiple thousands of cubic metres of earthen materials. The emplacement of such significant volumes of material, when coupled with the differences in location and landscaping outcome to the originally approved vegetative buffer at grade, means that in a quantitative sense, I am unable to conclude that the proposed modification, if approved, would result in a development that was in any way substantially the same as that which was originally approved. 95 The necessary consequence of the foregoing is that I am satisfied to that I do not have jurisdiction to approve the proposed modification. 96 As the quarry company has failed on the preliminary point relating to the jurisdictional permissibility, it is not appropriate for me to express any view on the substantive matter merit of the proposal (for the reasons discussed by Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26 unreported). In reaching this conclusion, I wish to make it explicitly clear that I have not reached (and am not to be taken as having expressed) any conclusion, tentative or otherwise, about the merits of the design, location or impacts of the structure that is proposed by the modification application. Given that there are other proceedings on foot in the Court, it would be entirely inappropriate for me to do so. 97 Because of the existence of the second set of proceedings concerning this quarry (being an appeal concerning a fresh development application seeking expansion of the quarry's output), I have produced this decision in a shorter period of time than might otherwise have been the case. As a consequence, although I consider it is as comprehensive as would have been the position had I taken longer to prepare it, it is, perhaps, a little less polished than might otherwise be the case. However, I considered that it was in the interests of both the quarry company and the council that they have my conclusions concerning the modification application as soon as was practicable so that the outcome could be considered in the context of the proceedings that are to be heard in October next. Orders 98 The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Application to modify Development Consent No. 2005/999 is refused; 3. The exhibits, other than Exhibits 2, A and B, are returned.

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