For Applicant in P168/2007 & Respondent in P1333/2007

Mr W Nelson of Harwood Andrews lawyers. Evidence was called from Mr D Larcombe and Mr R Stevens.

No appearances although several parties were also party to Mr Rolfe's application.

1. A small-scale sand extraction operation is proposed on a farm at No. 140 Buckley School Road, Buckley. The Surf Coast Shire Council determined to grant a permit for the proposal and two proceedings have been brought contesting that decision. The decision to allow the proposal is challenged by Mr Rolfe on behalf of a number of adjacent and nearby property owners. In addition, Mr Larcombe has sought review of several conditions included in the Notice of Decision.[1] Thus, the Tribunal must decide whether a permit should be granted and, if so, what conditions should be applied.
2. The matters in dispute between the parties focus on the information supplied by the permit applicant and concerns about the proposed operation with respect to sand and dust emissions, visual impact, noise, increased heavy vehicle movements and the operation of the extraction. Much of the concern expressed by Mr Rolfe and co-Applicants focuses on information they contend is lacking to support the permit application.
3. In deciding to allow the proposal subject to revised and more stringent conditions than contained in the Notice, we have carefully reviewed all submissions and evidence. That has been assisted by our inspection of the review site, locality and other quarry sites on 8 February 2008. In our reasons we do not recite all of the material included in submissions and evidence as all documentation is retained on the Tribunal's file.

1. Located on the south-east corner of Buckley School Road and Wainwrights Lane, the review site comprises two titles with an area of 59.7 hectares. It is occupied by a dwelling, paddocks used for grazing, several (dry) yabby ponds and outbuildings. The land is also used by Mr R Stevens for the sale and service of farm equipment such as chainsaws. This occurs under a 1981 permit. The land is undulating, rising to a ridge that runs generally along a north-west - south-east alignment centrally through part of the land. There are stands of scattered trees notably along the western (Wainwrights Lane) part of the site and centrally to the south of yabby ponds.
2. Two dwellings in separate ownership are directly to the east of the site. These are on small excised lots. They are owned/occupied by members of the Stevens family. Both front Buckley School Road and are close to part of the northern boundary of the review site. To the south of the review site, fronting Underwoods Lane, are two dwellings each on lots of around 16 hectares. The dwellings (Rolfe and Kershaw properties) are partly elevated and gain views over the review site. The dwellings are close to the Lane with the balance of the lots used for grazing and/or cropping. Further east, fronting Underwoods Lane but accessed via Mt Pollock Road, is a lot of 6 hectares with a very large dam (Bieser property). There is another lot (Turner property), for grazing and cropping, to the west and north of the Bieser land that shares much of the eastern boundary of the review site.
3. Buckley School Road is unsealed between Wainwrights Lane and Mt Pollock Road. It is heavily corrugated for much of its length and dips in the vicinity of a water course to the east of the review site. A railway line is immediately to the north of Buckley School Road. The wider area includes Lake Modewarre to the south-east and the Princes Highway at the northern end of Wainwrights Lane. We were advised of sand extraction that had occurred near to the review site, at various times on various sites and of various scales.

1. Approval is sought to use and develop the review site for sand extraction as set out in a draft works approval plan (1245) provided to the Department of Primary Industries. Works would be undertaken in three stages and continue over 5-10 years but possibly longer for a further 5 years. The staging areas are shown in the application plans with stage 1 being in the southern portion of the review site. Stage 1 is estimated to contain 125,000 cubic metres of sand, with 10,000 - 40,000 cubic metres in stages 2 and 3. The applicant says stages 2 and 3 may not be required if stage 1 has sufficient sand. Buffers of 20 metres in width with "scattered screening trees" are proposed along the southern and eastern boundaries of the land.
2. We were advised that the works would commence at the north-west corner of stage 1 to a depth of 2-3 metres with the removal of loam topsoil to a depth of 30cm. The underlying fine sand would be removed by mechanical means. No screening is to be undertaken. Annual production would be up to 30,000 cubic metres per annum. All works would be undertaken by Mr Larcombe using one semi-truck (that can carry 25,000 tonnes), a rigid truck (10,000 tonnes) a bulldozer and a loader. Hours of operation would be from 7.00am to 6.00pm (eastern standard time) on weekdays although the permit application was also made for Saturday morning operation. The sand extraction business would be undertaken by Mr D Larcombe with occasional assistance from his two sons. Mr D Larcombe is self-employed and has operated his sand extraction and cartage business for some 48 years. Most product would be sold to Blue Circle Cement for use in cement making processes.
3. An amendment to the permit application was granted by the Tribunal[2] whereby access to the review site and truck routes were revised as shown on a plan tendered at the hearing. Trucks would move to and from the site via Buckley School Road, Buckley Road South and Cape Otway Road to access the Blue Circle Cement in Reservoir Road. The modified access would result in changes to the Council's recommended conditions. At the commencement of the hearing, Mr King tendered revised conditions as a consequence of the amendment to the proposal and to address another matter relating to archaeological sub-surface soil testing. These and other suggested changes raised by the parties through the course of the hearing have all been considered by the Tribunal.

1. A permit is required to use the review site for extractive industry and associated buildings and works under the Farming Zone of the Surf Coast Planning Scheme.[3] The requirements of Clause 52.09 must be met including screen planting, parking and boundary setbacks.
2. The provisions of Clause 52.17 relating to native vegetation removal are not triggered.
3. The permit application was lodged with the Council in August 2006 and thus the provisions of the Aboriginal Heritage Act 2006 do not apply.

1. There is significant common ground between the parties about the planning context that applies to our assessment of this proposal. The parties recognise key planning principles identified in many Tribunal proceedings[4]:
   • Extractive industries are a discretionary use in the Farming Zone and typically located in rural-based zones where off-site impacts can be minimised and buffers achieved.
   • State-wide policies and Scheme provisions provide parameters and guidelines for the consideration and assessment of a new extractive industry.[5] The Scheme's provisions seek to ensure that appropriate buffers are established/available between extractive industries and sensitive uses to minimise impacts.
   • Local planning policy does not identify the review site or area as an investigation area or operating extractive area although there is acknowledgement in Clause 21.04-2 that there are several small extractive industries in the municipality. Local policies emphasise the importance of primary industries to the municipality's economic base. Priority uses in the Farming Zone are not related to rural living but instead to agriculture and purposes such as extractive industry.
   • Decisions about permit applications for extractive industries usually require potentially competing objectives to be balanced. There can be tensions when seeking to extract primary resources in a rural setting that has been enjoyed by farming families for many years and/or taken up for lifestyle farming or rural living purposes. Residents are entitled to a reasonable level of amenity but expectations as to what is "reasonable" must be cognisant of the primary purpose of land in the Farming Zone for agriculture and other productive purposes.
2. We received submissions referring to past extractive operations around the review site. Without investigating the lawfulness of such operations, it is evident sand in this region has been regarded as a resource and extracted in the past. Even though airborne sand and dust movement may have, and may still, cause nuisance to some property owners, the sandy environment is part and parcel of the make-up of this area whether or not sand is extracted for commercial purposes.
3. The proposal before us is a small scale sand extraction operation. Even at that scale, the proposal could cause unreasonable off-site impacts. Despite a wide range of concerns being expressed by Mr Rolfe on behalf of those living nearby, we find the primary issues are the potential for dust and noise emissions. We go to these and other matters raised in submissions next.

Is there insufficient detail accompanying the permit application?

1. Mr Rolfe and co-Applicants were critical of the proposal's lack of detail in terms of dust and noise emissions, management of the proposed extraction process, emergency management, stormwater management, landscaping and rehabilitation. They felt aspects of the proposal remain unconfirmed, such as the duration of the extraction, timing for rehabilitation, and the breadth of the exposed extraction area. On the basis of these concerns, Mr Rolfe endeavoured to undertake his own technical assessments, such as in relation to noise emissions and dust emissions.
2. It is correct that the permit application and the material covered in the works approval document (and an amendment to that document) lacks detail. It lacks the type of technical assessment that might usually be provided to support a new extractive industry. That was acknowledged by Mr King and Mr Nelson. However, they rely on the nature of the operation intended by Mr Larcombe, self-employed using one truck and one loader to extract and deliver sand. They also rely on the proposal's ability to comply with buffer areas (subject to changes to the extractive area) as well as the ability to apply permit conditions to ensure that off-site impacts are minimal and the land ultimately returned to agricultural use. They also proposed some additional permit conditions during the course of the hearing.
3. Initial approval of a draft works plan has been received from the Department of Primary Industries. However, works approval focuses on site operations and is not an indication that off-site considerations have been dealt with satisfactorily - that is for the planning permit process. Despite the deficiencies with the material accompanying the planning permit application, as will become apparent from the following assessment, we accept the cases put by the Responsible Authority and permit applicant in principle, although we will require more stringent permit conditions than those proposed by the Responsible Authority. A larger and more intensive operation with the same deficiencies in supporting information would not be likely to receive our support in this location because its off-site impacts would be expected to be much greater than the current permit application.
4. We are aware of cases where the Tribunal has allowed some detailed aspects of an industry's operation to be dealt with by conditions and others where a lack of information up-front has caused a proposal to be rejected.[6] The main point to flow from our review of these and other decisions is that each case is decided on its own facts and circumstances - in some situations it has been acceptable to allow testing and management plans prior to commencement via permit conditions and others where a site's context or specific environmental values means such an approach is not acceptable. There are, also, we think increasingly higher expectations as to information and application requirements being set through Planning Schemes.

Would the proposal unreasonably impact on the agricultural value of land?

1. Mr Rolfe submitted the proposal would impact on the future agricultural use and value of the review site through the removal of top soil and structural damage to soil. He submitted land may be removed indefinitely from agricultural production and the proposal does not represent sustainable land management. He also submitted the ability to farm abutting lots, and to farm those lots more intensively, would be adversely affected through the escape of sand via wind erosion, stormwater runoff and other impacts. In these and related submissions, Mr Rolfe relied on Mr Ashby's evidence.
2. It is correct that the proposal would prevent the use of the parts of the review site for typical agricultural activities such as grazing and cropping. However, the land would be used for primary production and a purpose envisaged by the Planning Scheme. We consider there is good scope for the land to be rehabilitated and re-used for agricultural purposes post-extraction, as has occurred on land in the wider area that were used for sand extraction and now is grazed and cropped. While those sites show varying quality in terms of ongoing land management, they do demonstrate that sand can be extracted and the land productively re-used in accordance with Scheme directions. We are satisfied a rehabilitation plan can be developed to take account of local climatic circumstances, and wider drought issues, to facilitate that outcome. As we explain below, we are also persuaded that emissions from the proposed operation would not unreasonably affect abutting land provided conditions agreed to by the permit applicant are met.

Would the proposal cause unreasonable dust/sand emissions?

1. A key amenity issue is the potential for sand movement and wind erosion. Given the fine nature of the sand that would be exposed and removed, Mr Rolfe referred to a range of sources for sand emissions from the site including the extraction process, erosion of exposed areas, erosion of un-rehabilitated land, vehicle movements on-site and off-site, and dust from uncovered loads. He was concerned that although the permit applicant had referred to an area of 0.5 hectares as being the maximum exposed during the extraction process, slow or ineffectual rehabilitation and movement of top soil could mean up to 2.5 hectares would be open to erosion by the strong winds that occur in the area. Mr Rolfe referred to wind data gathered from his own property and advice provided to him by an engineer that dust lift-off could occur at wind speeds of 19.4 km/hr. Given the number of days that wind speeds are higher than this level, he was particularly concerned about the lack of predictions about dust movement and consequent information about effects on abutting properties, residents' health, tank water supplies, stock welfare, and significant native vegetation particularly along Wainwrights Lane.
2. Mr Rolfe was similarly critical of the lack of a dust management plan up-front to address matters such as the size of the extraction area, dust suppression measures, non-compliance with EPA buffer distances in relation to Nos. 150 and 160 Buckley School Road and dust monitoring. He referred to the EPA's Draft Protocol for Environmental Management - Mining and Extractive Industry 2006 submitting a level 2 assessment would be appropriate for this proposal given the potential size of the operation, the prevailing winds, the open terrain, the lack of screening vegetation and the proximity of homes on abutting lots.
3. In addressing these and related, detailed, submissions made by Mr Rolfe and co-Applicants, we refer first to the EPA's Recommended Buffer Distances for Industrial Residual Air Emissions AQ2/86 July 1990. The recommended buffer distance for quarrying of material to sensitive uses such as residential areas and zones where no blasting is involved is 200 metres. The review site is not within 200 metres of residentially zoned land but there are dwellings close to the stage 3 extraction area. The Notice of Decision would require the boundaries of all extraction areas to be more than 200 metres from any dwelling on a neighbouring property (Condition 1v) and the parties expect that would impact on Stage 3.
4. As a matter of principle, we are concerned about the very close proximity of Stage 3 to the dwellings at Nos. 150 and 160 Buckley School Road even if they are actually more than 200 metres away as some of the estimates provided to us indicate. We understand these dwellings are on separate titles. Although we were advised that they are occupied by direct relatives of Mr Stevens, that may not always be the case. We consider Stage 3 should be deleted from the proposal on the basis that it would be too close to these dwellings.
5. Next we refer to the Draft Protocol for Environmental Management - Mining and Extractive Industry. This is a draft document for consultation and, on that basis, is not yet part of state environment protection policy. Nonetheless, it is an indicator of current thinking in relation to matters such as dust movement. It gains significance here by Condition 1(b)(i) on the Notice that would require a dust management plan to be submitted before the use or development starts including "as assessment for dust required by the Mining and Extractive Industry Protocol for a level 3 premises". The Draft Protocol refers to a level 3 assessment as appropriate when the "development is in a rural zone with no residences nearby". [7] It continues:

A level 3 assessment is the least onerous due to a lower potential risk arising from emissions from the proposed operations compared to operations requiring a level 1 or level 2 assessment. A level 3 assessment may be required when the development is small, in a location remote from residences, or where it is considered that the off-site impacts would be small compared to sites requiring level 1 or level 2 assessments.

1. The Draft Protocol contains a table that lists criteria to determine the level of assessment required. A level 3 assessment is required for a "Small mine or quarry between 20,000 tonnes/yr and 100,000 tonnes/yr extraction" in a rural area "close to residences (<1 km from work area boundary approved by DPI)".[8] A level 2 assessment would be required for 100,000-500,000 tonnes per annum. For an operation of less than 20,000 tonnes per annum, no assessment would be required with best practice management sought.
2. The proposal here involves a maximum of 30,000 cubic metres per year and the works plan refers to 10,000 - 40,000 tonnes per annum. Application of the table would give rise to a level 3 assessment although in some years extraction may be below the 20,000 tonnes/yr which would otherwise require no assessment. Even though we accept the sand on the review site is very fine grained in size, and there can be gusty and strong winds in this exposed location, the level 3 assessment is acceptable rather than a level 2 assessment sought by Mr Rolfe.
3. We have considered whether the level 3 assessment should be required now or is acceptable to prepare prior to works occurring on the land via a permit condition. We have decided on the latter. Similarly, we are satisfied in the circumstances of this case that finalising a dust management plan through permit conditions is acceptable. We reach these conclusions because:
   • the proponent agreed, at the hearing, to limit exposed areas to a total of 0.5 hectare (exposed for extraction including windrows of top soil; used or having been used to extract sand; and/or areas left without being made ready for sowing down after replacement of top soil). By comparison, this is a smaller area than Ms Bieser's dam.
   • the most exposed residents are to the south, south-west and south-east of the extraction areas. The Bieser dwelling is well protected by vegetation whereas the Kershaw and Rolfe dwellings are very exposed. Dependent upon which part of the extraction area is being mined, higher speed winds from the north, north-east and north-west are required to project dust toward the Kershaw & Rolfe dwellings. Based on submissions, these are not the main prevailing wind directions. Further, winds associated with strong cool changes tend to come from the west and south. Thus, the prospect of dust and sand being blown toward and reaching the Kershaw & Rolfe dwellings would be limited; not continual or predominant.
   • there is propensity for sand and dust movement with the current use of the review site and surrounding lots. Expected exposure to additional dust and fine sand caused by the proposed operation would be limited given the single loader and dozer operation. Dwellings are over 300 metres from the closest point of the Stage 1 extraction and the starting point for Stage 1 extraction would be more than 500-600 metres away.
4. We are satisfied that a dust management plan can be prepared which includes best practice management as suggested by the Draft Protocol. Measures would include ground cover, revegetation and use of sprayed water. A monitoring regime as recommended in the Draft Protocol will also be required to be prepared. We will require truck loads to be covered and note Mr Nelson's indication that a cover has been ordered for the truck.
5. It is helpful that there is a computerised wind monitor on the review site, used by Mr R Stevens in his service with the Country Fire Authority. That can provide data to inform the preparation of a dust management and monitoring plan. It can also provide the technology for an alarm system to be activated at times of high wind speed to alert the operator to winds above a nominated level that should cause site operations to cease. Mr Rolfe suggested 19.4 km/hr should be that trigger point. We do not agree. That figure was provided to him by an engineer and we have had no ability to test it. Observations on our site visit, when winds on the review site were measuring up to and over 20 km/hr on occasion[9], confirm our view that an appropriate cut-off should be developed through the level 3 assessment.
6. Mr Rolfe and co-Applicants explained their concerns about impacts of dust and sand movement on residents' health, tank water supplies, the health of stock and the health of significant road-side vegetation. Mrs Bieser graphically described the impacts and plumes associated with the excavation of the large dam on her property. We appreciate the basis upon which these concerns are genuinely held but are not persuaded that the scale and intensity of the proposed operation, in an environment that is already exposed to dust movement on occasion, warrants rejection of the proposal. The prospect of air-borne contaminants from windblown soil and top soil that might have been treated with fertiliser is remote and no greater than risk already present given the existing farming operations in the area. Nothing was presented to us to suggest previous sand operations have given rise to actual impacts or events to support these claims.

Would the proposal have an unreasonable impact in terms of noise?

1. While accepting sporadic machinery noise is reasonable in this farm setting, Mr Rolfe expressed concern about the amount of "invasive industrial noise" that might be generated by the extraction operation, traffic movement within the review site, and possible screening of materials. He said the north-westerly winds would carry the noise toward houses to the south and east. He was critical of the lack of an acoustic assessment and prepared his own analysis based on the Interim Guidelines for the Control of Noise from Industry in Country Victoria (1989) N3/89 and _State Environment Protection Policy (Control of Noise from Commercial, Industrial or Trade Premises within the Melbourne Metropolitan Area) No. N-_1.
2. In response, Messrs King and Nelson submitted adverse noise impacts are unlikely given separation distances, the low intensity use with minimal vehicle activity, no screening of product, and proposed permit conditions. Conditions include compliance with the Interim Guidelines, the application of modified reversing beepers (and trucks within the site to move in a forwards direction), limits on operating hours (a matter in dispute discussed later), and limits on external truck movements (to 30 per week).
3. The operation would involve the removal of topsoil by a bulldozer and thereafter the removal of material by a front end loader directly into the truck. No separate stockpiling of sand is proposed. Being fine grain sand, there would not be loud noise akin to the loading of heavier and solid material such as granite. There is the potential for noise associated with reversing beepers on vehicles and then the movement of trucks along the internal access road and onto Buckley School Road. The number of movements would be capped to a maximum of 6 loads/day.
4. Taking into account the separation distances to the nearest dwellings, and mindful of prevailing wind movement and patterns, the combination of the small scale of the use and permit conditions containing the operation together provide a reasonable balance between the use of the land and amenity of adjacent land owners. That does not mean the use will not be heard, rather, it means that an acceptable degree of noise intrusion in a rural setting will be permitted within parameters set by state environment protection policies.
5. It will be important to ensure compliance with the Interim Guidelines and any successor standard. That will be the responsibility of the permit holder. We will, however, add to the conditions proposed by the Council a requirement for initial monitoring, to be reported to the Council, to ascertain noise levels associated with the use and check for compliance with the Interim Guidelines. Mr Larcombe's truck will have reversing beepers to comply with Blue Circle's requirements but he offered a permit condition that the truck be confined to a forward motion when on-site. We have accepted that offer which can be required by condition.
6. There is the potential for noise on an ongoing basis associated with vehicles travelling to and from the site. The hours of operation would limit truck loading activities to between 7.00am to 6.00pm Monday to Friday. With an expected maximum of six loads per day at peak times, the nearest residents are likely to be aware of an increase in larger vehicles moving to and from the site compared with the existing situation. Even though this is a peaceful setting, it is a working and productive area involving tankers, horse floats and other large vehicles. Given the projected number of vehicles at peak and non-peak times, we are not persuaded that noise impacts of trucks on or off-site warrant rejection of the proposal.

Would the proposal have an unreasonable visual impact?

1. Messrs Rolfe and Kershaw referred to the visual impact of the works and vehicle activity from their dwellings and property. They enjoy an outlook from their homes over the review site that includes rolling plains and distant views including to remnant volcanic peaks.
2. The site is not prominent to main and tourist roads but is visible from local roads. The primary visual impact would be to abutting property owners, notably the Underwoods Lane properties directly to the south, and more distant dwellings to their south. This is because these dwellings are partly elevated and they have limited vegetation along their boundaries (there is, however, a cypress row that separates the Rolfe and Kershaw properties). The proposal would change the outlook from these dwellings notably for Stage 1 works that would be seen to varying degrees from the Rolfe and Kershaw dwellings. The Bieser dwelling would be screened by vegetation as would the two dwellings fronting Buckley School Road (mindful of the deletion of Stage 3 as discussed above). The Kimm dwelling would also have more limited views given existing plantings and distance.
3. The proposal involves a vegetated buffer along the southern boundary with scattered plantings. Mr Ashby suggested some additional planting as a possibility between Stages 1 and 2. We agree with the submissions made by the parties that screening planting is unlikely to have great effect given the time it might take to grow. That does not, however, mean screen planting along the southern boundary should not proceed (even though we note Mr Stevens opinion given in his evidence that such planting may be problematic to him). Fast growing native species could be used. There was reference at the hearing to the use of blue gums. However, blue gums tend to have a clear lower trunk. A bushier tree or shrub[10] would be better for masking the extraction areas. Thus, lower height shrubs/trees to say 5-7 metres would be desirable to assist to screen views of the works without removing the long distance views enjoyed from the Rolfe and Kershaw dwellings.
4. As the proponent intends to start work to the north-west of the Stage 1 extraction area, planting the southern buffer prior to, or around the time of, the commencement of the proposed use would assist that buffer to be established while works are focussed at a more distant point from the neighbouring dwellings to the south. Thus, although the works site would not be concealed, given the distances to dwellings and, in time, as screen plantings grow, we consider the visual impact associated with the proposed works to be acceptable for the use of land in accordance with the Farming Zone.

Would the proposal have an unreasonable impact on the road network?

1. Issues concerning the movement of vehicles to and from the site were raised in Mr Rolfe's submission. He referred to the impact of additional heavy vehicles on the local road network including the safety of children attending the tennis courts at the corner of Buckley School Road and Mt Pollock Road and the school bus route. A related matter is the impact of additional heavy vehicles on the road condition given vehicle loadings. He also raised concern about the adequacy of sightlines given a dip in Buckley School Road at a watercourse and questioned what route would be taken by trucks when the watercourse floods.
2. The proposal involves the use of an access point off Buckley School Road, given the amendment made to the proposal. The road is heavily corrugated in many places and is used for local access including vehicles of varying sizes attending the equipment business operated on the review site.
3. The proposal may reduce the volume of vehicles using Buckley School Road in numeric terms but increase the proportion of larger vehicles. The amount and weight of truck traffic generated by the proposal can be accommodated on the road network without jeopardising the safety of road users including children on a bus or travelling to the tennis courts. Any vehicle use involves risks and caution must be exercised by those driving, walking or riding a horse or a bike. Even with a dip in Buckley School Road, we are satisfied that sightlines are satisfactory. The sightlines available to a truck, involving a person sitting high in a cabin, are much better than for the driver of a car.
4. Flooding of the watercourse would be a fairly rare occurrence on the information available to us. The permit applicant has agreed to a permit condition that all vehicles associated with the use shall only access the site from Buckley School Road and Cape Otway Road. Thus, vehicles associated with the proposal (if in use) would be forced to wait until safe access across the watercourse was possible during floods.
5. We are, therefore, satisfied that the issues raised by Mr Rolfe in relation to the operation of the road network have been addressed or are not sufficient to refuse a permit.

Do any other matters warrant rejection of the proposal?

1. Mr Rolfe's submission raises a number of other issues upon which we next summarise our conclusions.
   • Heritage. There was criticism of the extent to which the review site has been investigated for Aboriginal archaeological material.

We note that there have been on-site investigations and a report prepared by Terra Culture. Permit conditions to address this matter were discussed at the hearing including a request by Aboriginal Affairs Victoria for sub-surface testing by a qualified archaeologist and including in conjunction with a representative of the Wathaurong Aboriginal Co-Operative. We have adopted the conditions sought by Aboriginal Affairs Victoria including the additional condition. Mr Nelson submitted testing has been done but it will be a matter for the Council to ascertain what, if any, further testing is required to satisfy the permit conditions.

• Stormwater runoff and contamination of abutting properties. The buffer distances and vegetation proposed within the setback areas will assist to manage runoff. The proposed "general amenity" condition (Condition 20) provides the basis to address any specific issues directly attributed to the proposed operation once underway. We see no reason why groundwater should be affected, contrary to submissions made by Mr Rolfe.
• Impacts on the watercourse. Mr Rolfe referred to the environmental values of the watercourse. We are satisfied that, with the buffer areas proposed and removal of Stage 3, that works are sufficiently separated from the watercourse. We note the local Catchment Management Authority raised no objection to the proposal.
• Emergency management. We do not accept submissions that an emergency management plan is required ahead of a planning permit being issued but we are persuaded that protocols for any potential emergencies should be in place prior to the use commencing.
• Impacts on property values. Arguments about a loss of amenity were linked in turn to submissions that property values would decline. A letter from a real estate agent was tendered by Mr Rolfe.

As the Tribunal frequently states, it is a well established planning principle that depreciation of land values as a result of a proposed development is not a relevant ground by which to refuse a proposal. That is, property value is not, in itself, a planning consideration. But amenity is relevant. If values are affected by adverse amenity impacts, then it is the amenity questions that must be considered, not their ramifications in terms of property values. We have addressed potential amenity impacts previously in these reasons and found the proposed works to be acceptable in the site's planning and physical context. It is integral to our decision to recognise the land is within a Farming Zone and, although there are dwellings on fairly small lots nearby, the impacts of the proposed small scale sand extraction are acceptable in that context.

1. We have generally accepted the conditions contained in the Notice of Decision, subject to a number of wording changes agreed between the permit applicant and Responsible Authority at the hearing. That includes changes to accommodate the revised access arrangements via Buckley School Road. In relation to the four conditions that are the basis of the conditions appeal, we record the following:
   • Condition 1(e) - road maintenance. This condition requires an annual contribution to road maintenance of $1,000. Mr Nelson said his client would accept the condition if not required to seal roads as well (refer Conditions 1(g) and (h)). Mr Rolfe doubted a $1,000 contribution would cover costs associated with maintenance and repairs. We have been persuaded that sealing is unnecessary as discussed below and will adopt the Council's requested $1,000 contribution as accepted by the permit applicant. Modifications to the wording of the condition were agreed at the hearing and we have adopted the changes as requested by the Council and Mr Nelson.
   • Conditions 1(g) and (h) - road sealing. These conditions required works associated with the previous access arrangements and some road sealing. With the revised access, Mr King requested the conditions be deleted and road sealing be required outside and close to Nos. 275 and 285 Buckley School Road reflecting the same basis upon which the Council had initially sought sealing near No. 55 Buckley School Road. He said Nos. 275 and 285 Buckley School Road are around 17 metres from the road and thus it would be reasonable to require sealing, a matter with which Mr Rolfe agreed. Mr Nelson opposed the condition as being excessive given likely truck numbers and also given the amount of vehicle traffic associated with the current equipment sales/service that would cease if the proposal proceeds. We accept Mr Nelson's submissions on this point. The dwellings are exposed to railway noise as well as noise and dust from current vehicle movement. Sealing would reduce vehicle noise and dust, but we do not think the proponent alone should be required to pay for sealing the road given the capped level of truck movements.
   • Condition 8 - hours of operation. The Council sought to prevent Saturday operation given amenity considerations although the permit applicant seeks to operate on Saturday mornings as required. Mr Rolfe explained the position of neighbours who would prefer no Saturday operation, mindful of children playing tennis at the tennis courts at the intersection of Mt Pollock and Buckley School Roads. We consider Saturday operation should not be routinely permitted but we will allow the hours of operation to be varied with the Council's consent.
2. In addition, we highlight the following:
   • We will require amending plans to confirm distances between extraction areas and title boundaries, which we will also require to be marked out on-site, as well as the position and form of internal access roads.
   • We will tie the permit to Mr D Larcombe, an option canvassed by the Tribunal with the parties at the hearing. It is only in exceptional cases that a permit is made personal to the permit applicant and, in this case, we consider exceptional circumstances apply. The permit applicant's case, and it seems the Council's decision, revolve around the fact that Mr Larcombe would, as a self-employed operator, be the permit holder. A different operator with a different method of operation (such as with multiple trucks and loaders) could have a much more significant impact on the amenity of the locality and we therefore consider it appropriate to link the permit to the mode of operation described by Mr Larcombe.
   • We have restructured some conditions and made some conditions "to the satisfaction of the Responsible Authority".

1. For the above reasons we will vary the decision made by the Responsible Authority and direct that a permit issue subject to new conditions.

The use and development of the land for an extractive industry in accordance with the endorsed plans.

The permit must contain the following conditions:

1. Before the use/development starts amended information and plans to the satisfaction of the Responsible Authority must be submitted to and approved by the Responsible Authority. When approved, the information and plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided. The plans must be generally in accordance with the plans and information submitted with the application dated 20 September 2006 but modified to show:
   • (a) The technical aspects of the amended document, submitted to Council on 16/03/07 relating to increased buffer zones, removal of the sand screening operation, volume of extracted sand per annum, number of vehicles on site, expected volumes of traffic generated by the operation and screening to the southern buffer area, be consolidated into the work authority (WAI 245) plans and documentation. Details of protocols to address potential emergencies must also be provided.
   • (b) A surveyed plan of the site showing boundaries and proposed work areas, including dimensions of the extraction areas from title boundaries.
   • (c) The means by which the extremities of the extraction areas will be marked out on-site.
   • (d) Proposed fencing types and locations for the site.
   • (e) Stage 3 deleted. The boundaries of all other extraction areas to be no less than 200m from any neighbouring dwelling.
   • (f) The location and form of internal access roads.
   • (g) The proposed truck and vehicle parking area(s) on site.
   • (h) A report by a qualified agricultural soil expert/engineer detailing rehabilitation of the site taking into account drought conditions.
   • (i) The means by which the exposed areas will be confined to a maximum of 0.5 hectares in accordance with Condition 12.
   • (j) Dust management and landscape plans required by Conditions 2 & 3.

1. Prior to the use and development commencing, a Dust Management Plan must be submitted to and approved by the Responsible Authority. When approved this plan shall form part of the permit and all operations must be undertaken in accord with this plan at all times to the satisfaction of the Responsible Authority. The plan must detail but not be limited to:
   • (a) An assessment for dust required by the Mining and Extractive Industry Protocol for a level 3 premises.
   • (b) Where the assessment for dust indicates emissions will have an unacceptable level of risk of exceeding criteria for dust pollutants, a risk management strategy must be prepared addressing measures to reduce dust emissions to acceptable levels (that is, below the criteria) including the use of water trucks to reduce raised dust.
   • (c) Details of a recommended trigger for wind velocity that must be connected to an alarm system and alert the operator to stop work.
   • (d) Details of a regular watering programme of the unsealed sections of Buckley School Road to control dust emissions while transporting the sand off site and entering the site,
2. The extraction operation must at all times be conducted in accordance with the Dust Management Plan to the satisfaction of the Responsible Authority The dust management plan may be amended to the satisfaction of the Responsible Authority.
3. Prior to commencement of the use a 24 hour contact telephone number(s) of the site manager or other responsible person is to be clearly displayed on a sign near the Buckley School Road entrance fence so that it can be read from Buckley School Road. A permanent register of all calls to this contact telephone number shall be maintained by the permit holder which register shall be available at all times for inspection by the Responsible Authority.

1. Prior to the use and development commencing, a landscape plan and report prepared by a qualified landscaper must be submitted to and approved by the Responsible Authority. When approved, the plans will be endorsed and will then form part of the permit. The plans must be drawn to scale with dimensions and three copies must be provided to show the following;
   • (a) The botanical and common name, height and width at planting and at maturity, of all vegetation to be planted to the entire buffer zone abutting the southern boundary of the subject site. The vegetation within the buffer should be shrubs or small trees with dense foliage to provide for screening.
   • (b) Adequate root protection zones to trees on site in close proximity to the access track and extraction site.
   • (c) The extraction site must be at least 5 metres from the drip line of any significant tree.
   • (d) All new tree plantations are underplanted with native grasses to provide a filtering function in the event of unexpected escape of stormwater.

1. All vehicles associated with the use shall only access the site from Buckley School Road and Cape Otway Road to the satisfaction of the Responsible Authority.
2. The following requirement shall apply to vehicle crossings and driveways that shall be constructed to the satisfaction of the Responsible Authority - entrance culverts with endwalls and suitable pavement material must be constructed to suit the proposed driveways to the satisfaction of the Responsible Authority.
3. A "Non-Utility- Minor Works" permit shall be obtained prior to any works being undertaken in road reserves.
4. Before the use starts, areas set aside for parked vehicles and access lanes as shown on the endorsed plans must be constructed to the satisfaction of the Responsible Authority by being:
   • (a) properly formed to such levels that they can be used in accordance with the plans;
   • (b) surfaced with an all-weather sealcoat/gravel or crushed rock; and
   • (c) drained.

Such areas shall be maintained to the satisfaction of the Responsible Authority.

1. During each annual period of extraction, the permit holder must pay Council on an annual basis, prior to July 1, $1,000 as a contribution towards the maintenance of the local road infrastructure.

1. The use hereby permitted must only operate during the following times:
   • (a) Monday-Friday 7.00am to 6.00pm (Australian Eastern Standard Time);
   • (b) Closed Saturday, Sunday and Public Holidays;

unless otherwise with the prior written consent of the Responsible Authority.

1. Not more than 0.5 hectares of the area approved for the extraction of sand must, at any one time, be:
   • (a) Exposed for extraction (including windrows of top soil);
   • (b) Used to extract sand;
   • (c) Left uncovered after extraction of sand; and/or
   • (d) Left without being made ready for sowing down after replacement of top soil;

to the satisfaction of the Responsible Authority. If seasonal conditions are not appropriate for the reinstated top soil to be promptly sown down with final vegetation then an appropriate interim cover crop shall be sown as soon as practicable to minimise dust emissions to the satisfaction of the Responsible Authority

1. All rehabilitation works shall be undertaken promptly and as soon as practicable after the removal of sand to the satisfaction of the Responsible Authority.
2. Should the groundwater table be intersected during the course of extraction, the extraction operator shall place a metre of clay material over the extraction area to form a seal to reduce surfacing of water. The extraction operator shall immediately notify the local catchment and rural water authorities if any groundwater is intersected.
3. A maximum of 30 weekly external movements of sand trucks are permitted from the site without further written approval of the Responsible Authority, within the operation times pursuant to Condition 11 of this permit.
4. Modified reverse beepers (growler beepers) shall be installed on the bulldozer and loader used within the site. The permit holder must use its best endeavours to ensure that the movement of vehicles around the site is carried out in a forwards direction to prevent the escape of reverse alarm sounds.
5. All trucks departing the site must have covered loads of sand.
6. There must be no direct sales of sand from the subject site at any time.
7. No dry screening of product, sand or other soil material may occur on the land at any time.
8. The amenity of the area must not be detrimentally affected by the use or development, through the:
   • (a) Appearance of any building, works or materials.
   • (b) Emission of noise, artificial light, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil.
   • (c) Presence of vermin.
   • (d) Transport of materials, goods or commodities to/or from the land.
9. The layout of the site and the size, design and location of the works permitted must be carried out in accordance with the endorsed plans and must not be altered or modified without the further written consent of the Responsible Authority.

1. This permit allows the use and development of the land for sand extraction only by Mr Don Larcombe in association with his son(s). If Mr Don Larcombe ceases to use the land for this purpose, this permit will expire.

Conditions required by Department of Primary Industries

1. The use and development of the subject land must not commence until the Work Authority is granted in accordance with the requirements of the Extractive Industries Development Act 1995.
2. The permit will expire if the Work Authority for the use issued under the provisions of the Extractive Industries Development Act 1995 is cancelled in accordance with Section 24 of this Act.

Conditions required by Aboriginal Affairs Department

1. A program of sub-surface testing must be completed of the subject land to determine the presence of in situ sub-surface cultural heritage remains. This should be conducted by a qualified archaeologist and include representatives of the Wathaurong Co-operative Ltd and a report provided to the Responsible Authority.
2. Works must cease immediately upon the discovery of any Aboriginal cultural material, and Aboriginal Affairs Victoria must be notified immediately of the such discovery at GPO 2392, Melbourne 3001 or on (telephone) 1300 551 380.
3. If any suspected human remains are found, work inn the area must cease and the Victorian Police and the State Coroner's Office must be informed of the discovery without delay. The State Coroners Office can be contacted at any time on telephone (03) 9683 4444.
4. If there are reasonable grounds to suspect that the remains are Aboriginal, the discovery should also be reported to Aboriginal Affairs Victoria on (telephone) 1300 888 544 or (03) 9208 3287. Aboriginal Affairs Victoria will ensure that the local Aboriginal community is informed about the circumstances of the discovery.
5. Officers of Aboriginal Affairs Victoria shall be permitted access to the site at any reasonable time, for the purpose of monitoring adherence to the conditions above. Note: All aboriginal sites, places and objects are protected under the State Archaeological Aboriginal Relics Preservation Act 1972 and the Commonwealth Aboriginal and Torres Straight Islander Heritage Protection Act 1984. It is an offence to damage, interfere with or endanger an Aboriginal Site, place or object without obtaining prior written consent from the relevant local Aboriginal community.

Conditions suggested by Environmental Protection Authority

1. Noise generated by the operation of the quarry must comply with the Environment Protection Authority Interim Guidelines for the Control of Noise from Industry in Country Victoria (1989) N3/89. Upon the Environment Protection Authority adopting another applicable noise emissions standard for rural Victoria, the permit holder must comply with such a standard.
2. Within three (3) months of the commencement of the use, the permit holder must provide to the Responsible Authority a report prepared by an acoustic engineer detailing noise measurements associated with the use when in operation to confirm whether the requirements of the Interim Guidelines for the Control of Noise from Industry in Country Victoria (1989) N3/89 are met. The report must contain recommendations for ameliorative measures if the noise levels required by the Interim Guidelines are not complied with. Such ameliorative measures as may be recommended are to be implemented to the satisfaction of the Responsible Authority.
3. Only clean storm water must be discharged beyond the boundary of the premises to any surface waters.

[1] Conditions 1(e), (g) and (h) relating to access/road works and Condition 8 relating to hours of operation.

[2] At a directions hearing before Deputy President Dwyer with a written order dated 30 October 2007.

[3] Clause 35.07. The decision guidelines have been taken into account by the Tribunal in addition to decision guidelines at Clause 52.09-3. Relevant policies of the State and Local Planning Policy Frameworks are Clauses 11, 14, 15.01, 15.05, 17.05, 17.09, 18.02, 18.09 and 21 (Municipal Strategic Statement). The general decision guidelines at Clause 65 apply and have been considered. A number of other documents were referred to in submissions including the EPA's Recommended Buffer Distances for Industrial Residual Air Emissions AQ2/86 July 1990 and Interim Guidelines for the Control of Noise from Industry in Country Victoria (1989) N3/89. Mr Rolfe referred to the EPA's draft State Environment Protection Policy (Air Quality Management); Draft Protocol for Environmental Management - Mining and Extractive Industry, 2006. Referrals of the permit application were made by the Council to the Department of Primary Industries, Department of Sustainability and Environment, VicRoads and Aboriginal Affairs Victoria wherein no objection to the proposal was received subject to conditions being included on any permit to be issued. Advice was also sought from the Environment Protection Authority, Corangamite Catchment Management Authority and Southern Rural Water.

[4] For example, Waldoo Pty Ltd v Corangamite SC [2006] VCAT 1416.

[6] Waldoo Pty Ltd v Corangamite SC [2006] VCAT 1416, Norville Nominees Pty Ltd v Strathbogie SC [2007] VCAT 2389.

[9] We observed the readings from the wind monitor several times on our inspection.

[10] Some types of hakea provide an example of the shape of trees/shrubs that are possible.