Waldoo Pty Ltd v Corangamite SC [2006] VCAT 1416

The decision of the Responsible Authority in permit application no. P2004/250 is set aside. Pursuant to the provisions of Section 85(1)(b) of the Planning and Environment Act 1987, the Responsible Authority must issue a permit for the land at Lot 2, PS411547K, Parish of Timboon, N. Robilliards Road, Timboon. The permit will allow the use and development of the land for extractive industry (limestone quarry) in accordance with work authority no. 1260 (20 July 2005) and endorsed plans. The permit is subject to the conditions set out in Appendix 1.

Mr W Nelson of Harwood Andrews lawyers. Evidence was called from Mr A C Brian, project engineer, and Mr D Shepherd, arborist.

Mrs M Grainger, Manager Statutory Planning and Building Services. Evidence was called from Mr M Scott, town planner.

Mr M O'Keefe in person and for Mr C Archibald, Ms D Bailey, Mr G Bartlett, Mr R Gloyne, Mr N Finnigan, Mr M & Mrs D McDonald, Mr P O'Keefe, Mr R O'Shea, Mrs M Price, Mr C & Mrs K Y Spokes, Mr G Welton and Mr J Wallace. Several parties and residents were in attendance.

An apology was received from Mrs T Hardman who filed a written submission to supplement her statement of grounds. She is secretary of the Curdies Valley Landcare Group.

1 Waldoo Pty Ltd proposes to use and develop land approximately two kilometres to the west of Timboon for a limestone quarry. The Corangamite Shire Council has determined to refuse the permit application and Waldoo Pty Ltd has made Application under Section 77 of the Planning and Environment Act 1987 ("the Act") seeking review of the Council's decision. The main issues for our determination relate to the visual impact of the proposal, potential off-site amenity impacts such as from noise and dust, concerns about increased heavy vehicle movements and potential environmental impacts including the extent of native vegetation removal. In reaching our decision to direct the issue of a permit we have considered all submissions and evidence. That has been assisted by our inspection of the review site, locality and other quarry sites (including at Curdie Vale) on 3 July 2006. We are satisfied that the proposal has been designed to minimise the change to the rural landscape that will occur and other potential concerns can be addressed by permit conditions or do not justify the refusal of a permit.

2 The subject land is a hill located on the north side of N. Robilliards Road, west of Timboon. It has an area of 35.3 hectares of which 6.06 hectares would form the proposed excavation area. The land is irregular in shape as a result of the excision of two dwellings from its southern portion. In 2005, an additional area of land was purchased by the Applicant and at the commencement of the Hearing we amended the permit application to reflect the revised lot boundaries. There is a large stand of native vegetation to the southern portion of the site within the recently acquired land. The area affected by the proposal is to the north and is a spur that sits above river flats to its north/west. There are a few trees along this section of the land.

3 Approval is sought to use and develop the subject land for a limestone quarry as set out in a works approval plan (1260) provided to the Department of Primary Industries. Works would be undertaken in four stages and would be expected to continue over at least a decade. The works commence at the top of the hill and move progressively downwards to a depth of around 40 metres. Each stage would involve the retention/ construction of a five metre high batter/lip around the edge of the quarry pit to provide a visual and acoustic barrier to the work site. That would form part of rehabilitation works that would be finalised at the end of quarrying.

4 It is expected to remove approximately one million cubic metres of limestone. Overburden would be stored in several areas - the largest would be to the south of the quarry pit on an existing open flat pasture; a smaller area in a depression to the west of the pit (both are shown in the above plan extract) and a third area would be close to the common boundary with the closest dwelling to the south (the Bartlett residence). Hours of operation would be from 7am to 6.30pm each day (7.30pm in daylight savings) except for some public holidays. A new access is proposed from N. Robilliards Road. Ten metre wide vegetated buffers form part of the proposal. Planting is also proposed to the west of the Bartlett residence.

5 At the commencement of the hearing, without objection from any party, we acceded to Mr Nelson's request to amend the permit application to include vegetation removal and substitute plans. That included revised buffer and overburden locations, details of the access point and intersection treatment to N. Robilliards Road, and a list of trees nominated for removal.

Existing View from Timboon-Nullawarre Road, north-east of the review site. [Source - evidence of Mr M Scott]

6 The following provisions of the Corangamite Planning Scheme ("the Scheme") are relevant in determining the merits of this proposal.

7 The subject site is located in a Rural Zone pursuant to Clause 35.01. A permit is required to use and develop the land for the purposes of extractive industry. Decision guidelines are set out at Clause 35.01 and require consideration of issues under headings of general, rural, environmental, and design & siting issues. The requirements of Clause 52.09 must be met including screen planting, parking and boundary setbacks. Decision guidelines at Clause 52.09-3 have been taken into account by the Tribunal. The general decision guidelines at Clause 65 also apply and have been considered. An Environmental Significance Overlay affects the subject land but no works are proposed within the Overlay area.

8 The provisions of Clause 52.17 relate to native vegetation removal. A permit is not required where "the removal, destruction or lopping of native vegetation is necessary for carrying on an extractive industry, including an extractive industry authorised by a work authority under the Extractive Industries Development Act 1995". We return to the provisions later.

9 The relevant policies of the State and Local Planning Policy Frameworks are Clauses 11, 14, 15.01, 15.05, 15.08 (Great Ocean Road Strategy), 15.09, 17.05, 17.09, 18.02, 21 (Municipal Strategic Statement) and 22.04-7 (Townscape - Town Edges).

10 Referrals were made by the Council to the Department of Primary Industries, Corangamite Catchment Management Authority and Framlingham Aboriginal Trust wherein no objection to the proposal was received subject to conditions being included on any permit to be issued.

11 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 as well as the Great Ocean Road Region - A Land Use and Transport Strategy and its associated documents.

12 In setting out the reasons for our decision, we will not recite all of the material presented as the detailed written submissions and statements of evidence are retained on file although we do refer to some of the main points below. The key questions for the Tribunal's determination are:

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would the proposal represent an acceptable outcome in terms of its impact on the landscape and visual qualities of the valley?

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would the proposal have unreasonable impacts on the amenity of nearby properties and residents in terms of noise, dust and bore/ground water?

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are the proposed access arrangements acceptable?

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would the proposal pose an unacceptable environmental risk or hazard particularly in terms of the Curdies River catchment?

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are there any other matters that should cause the permit application to be refused?

13 Before we address the matters in contention in this proceeding, it is important to establish the framework within which our review proceeds. Key themes emerging from policy as relevant to this Application are:

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to protect and develop the Shire's agricultural and natural resource bases, including bio-diversity values, and ensure that new development is compatible with/complements agricultural activities[1];

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to provide for the sustainable management and protection of natural resources of soil, water, flora, fauna and eco-systems;

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to protect important landscape features and assets;

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to recognise, enhance and promote the natural, visual and environmental qualities of the area as part of the Great Ocean Road region and whose visual qualities are important for tourism and related purposes[2];

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to enhance local townships and their edges and delineate those edges;

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to protect catchments and environmental assets, improve water quality and protect remnant native vegetation.

14 Local policies give weight to the diversification of the agricultural base and note the expansion of timber and other industries. However, little is said about extractive industries despite the area's history of such activity. The plan accompanying the vision statement at Clause 21.03 refers to the area's rich natural resource profile and a specific goal is productive agricultural, forestry and mining activities and protection of rural resources.[3] There is recognition in the Corangamite Regional Catchment Strategy of the growth of extractive industries to support increased settlement and development.[4]

15 Policies provide parameters and guidelines for the consideration and assessment of a new extractive industry.[5] Quarrying, including for softer material such as limestone, can potentially have significant impacts. The Scheme's provisions seek to ensure that appropriate buffers are established/available between agricultural/extractive industries and sensitive uses to minimise impacts. For example:

Provision for buffer areas between existing extractive industries and sensitive land uses should be determined on the following principles:

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The buffer areas are determined so that appropriate limits on effects can be met at the sensitive locations using practical and readily available technology.

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The required buffers are taken into consideration if a change of land use in the vicinity of the extractive industry is proposed.

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Land within the buffer areas may be used for purposes that are not adversely affected by the extractive industry.[6]

16 The subject land is rural land zoned for rural purposes. The wider area includes larger farm holdings but the three closest to the review site are rural residential lots and hobby farms. The decision before us requires potentially competing objectives to be balanced. The issues raised highlight the tensions that can arise when seeking to extract a stone resource in an attractive setting that has been taken up for rural living purposes and is enjoyed by farming families. Whether on larger holdings or small lots, existing residents are entitled to a reasonable level of amenity. However, expectations as to what is "reasonable" must be cognisant of the location of the review site in an area where the primary purpose of the land is for agriculture and other productive purposes. It is not the same level of amenity that can be expected in other places where groupings of dwellings may be sited, such as rural living or low density residential zones. An agricultural setting can be noisy through the use of equipment and machinery and may give rise to airborne emissions such as dust and from crop-raising. Moreover, priority uses in the Rural Zone are not related to rural living but instead to agriculture and purposes such as stone extraction.

17 The principle of extracting limestone from the review site underlies some of the objections raised to this proposal. We address specific concerns below but note that known stone resources and existing extractive industries are typically included in rural-based zones where off-site impacts can be minimised and buffers achieved. The wider region includes small private limestone extractions and several large commercial extractive industries. It is evident on a drive through the wider area that there have been other quarries that are no longer operational. Thus, in an area where limestone has historically been accessed and continues to be so to varying degrees, the concept of a new quarry in this area is not surprising or unacceptable as a matter of principle.

18 In forming that view, we give weight to the ability of the proposal to comply with the EPA's Recommended Buffer Distances for Industrial Residual Air Emissions AQ2/86 July 1990 in relation to distance between extraction areas and the Bartlett and Serong residences (being the two excised lots abutting the southern boundary of the review site). The recommended buffer distance for quarrying to a sensitive use is 200 metres where no blasting is involved. The overburden area would be less than 200 metres from the Bartlett dwelling. The EPA's guidelines refer to the emitter's end as including stockpiles from which residual air emissions might be anticipated. The Applicant intends to grass the overburden stockpile but we are concerned about its proximity to the dwelling. That stockpile is at the top of the hill and in a location where winds could gather and move material. The EPA is a guideline and can be departed from. In this case, extraction activities would be confined in hours and most intensive during a period of a few months annually. The nearby sensitive use is rural residential and we consider that conditions through a management plan, limited operating hours and preventing crushing within 200 metres, can limit the potential for emissions from the stockpile area.

19 The O'Keefe dwelling is located on the river flats abutting the Timboon - Nullawarre Road. The distance between that house and the extraction area is not marked on the plans. Mr O'Keefe's submission refers to 200 metres. Stage 4 of extraction would bring the work area toward that dwelling that is to the north of the review site. On our scaling from the plans, the O'Keefe dwelling is closer to the northern edge of the extraction area than the Bartlett residence and close to 200 metres. We consider that there should be no works within 200 metres of any dwelling on an adjacent lot to comply with the EPA's recommended buffer distance. On its face, this may be achieved, but we would wish for that to be confirmed by a permit condition and, if required, the plans must be revised to reduce the size of Stage 4 to achieve this outcome including the 10 metre wide buffer zone.

20 A significant part of the Council's case, echoed in submissions by Respondent Objectors, is concern about the visual impact of the proposed development and the modified landscape that would be created. Mrs Grainger explained that the review site is a prominent spur and an important part of the landscape at the edge of the Timboon township. Reference was made in submissions to the role of the Timboon-Nullawarre Road as an inland tourist route as part of the Great Ocean Road Strategy.

21 In support of the Council's and Objectors' case, we received an impressive presentation by Mr Scott who had undertaken a very detailed landscape and visual analysis of the valley within which the review site is most notable and the projected impacts of the proposed works. Mr Scott's evidence included that the review site is an important topographic landmark on the approach to Timboon, a town that is designated for urban growth in the Great Ocean Road Strategy. He stated that if the earth batters and screens proposed by the Applicant are able to be executed and maintained "they will effectively conceal most of the quarry operations from the view of vehicle occupants driving along the Timboon-Nullawarre Road"[7]. What would not be concealed is Stage 1 works that occur on top of the ridge and the top soil/overburden also on top of the ridge. Thus, landscape-altering works would be evident for much of the life of the quarry and this was regarded by him as an adverse impact on the "undeveloped rural character of this landscape corridor" [8]. Further rehabilitation works include a 1:3 terminal batter that was said to be unnatural in this setting.

22 Mr Scott produced multiple photomontages and 3D images showing the progressive staging of works and the change to the landscape that would be expected to result[9]. Mr Nelson agreed that the images represented the proposed works and expected impact in visual terms.

23 Where the parties depart is in terms of their views as to whether the change to the landform caused by the removal of the topographic spur and rehabilitation with a different landform is acceptable. Mr Nelson submitted that it was. He relied on the absence of any existing or proposed Significant Landscape Overlay or like Overlay, the absence of any specific reference to the review site or valley in local policy or the Great Ocean Road Strategy, the lower order nature of the Timboon-Nullawarre Road as a Road 2 Zone rather than a primary tourist route, the altered state of the landscape (including scars by other quarries) and the manner in which it is proposed to undertake the works to minimise visual impacts.

24 We have already referred to the important policy theme relating to landscape values. Specifically, Clause 21.04-2 states:

The Shire contains areas of the highest visual quality - a factor which will ultimately favour its promotion for tourism and recreational use. Variation in topography and vegetation, multiple visual foci such as lake areas, volcanic cones, strongly defined plantings and walls along cleared pasture increase the visual quality of the area....

One of the principal activities of tourists visiting the Shire will be scenic drives between town centres and along the Great Ocean Road. The scenic qualities of these routes will need to be maintained if commercial tourism benefits are to be obtained. Interpretation of the visual quality of the landscape will increasingly become a feature of the Shire's tourism industry.

25 The spur is prominent in the valley and can be seen from various vantage points along the Timboon-Nullawarre Road as documented in Mr Scott's evidence and addressed by Mr O'Keefe. The hill and spur formations and river flats are attractive and contrast with the landform further west and also east moving toward the township. The view to the subject land is expansive from a point west of the Curdies River bridge, across the open landscape to a point where roadside vegetation increases and the road alignment alters over 1.5 kilometres to the south-east. Along this route, the hill that forms the quarry site is prominent to westbound travellers and eastbound travellers dependent upon the viewing point and direction of travel. There is limited roadside vegetation or other plantings to mask the view in this corridor.

26 Mr Scott's evidence is helpful and influential insofar as it is conceded that the design on the quarry pit, involving a five metre batter/lip, will prevent most views to the quarry floor and excavation. That would be assisted by buffer planting that would grow in time. Therefore, although the northern face of the spur would be progressively changing, and retreating, a large scar would not be exposed to public view. Concerning elements in Mr Scott's opinion are the location of the largest overburden stockpile on the ridgeline and the formation of rehabilitated areas at a 1:3 batter which is regarded as unnaturally shallow. A 1:2 batter is preferred by Mr Scott with more moulding.

27 It is relevant to the question of visual and landscape impact that:

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Stage 1 is expected to be of limited duration. It involves the top soil being removed from the hilltop by 5-10 metres, batters being created and planting along the eastern and northern extraction limits. Based on Mr Brian's evidence, Stage 1 could be completed in around 6 weeks in favourable weather conditions (such as over summer) but would be longer in less suitable circumstances. Thus, Stage 1 would involve works that are visible but not of ongoing duration or longevity.

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The 1:3 batter is intended to allow agriculture to continue on the subject land once quarrying ceases and a steeper slope is regarded by the Applicant as more problematic to achieve this aim.

28 We have appended some photomontages presented by Mr Scott to show how the landscape is expected to change. Proposed plantings are not shown in the images we have attached but were part of Mr Scott's evidence.

29 The landscape has been altered by varying interventions by man including the probable removal of vegetation. We consider that the permit application has been carefully considered and designed to minimise the visual impacts that a project of this type could create. Although the proposed development would change the landform in the longer term, we are satisfied that rehabilitation can be undertaken, and that the modified slope and spur shape would be acceptable. Quarrying works usually have visual impacts and this case there would be little or no obvious scarring, unlike some of the private quarry pits and larger extraction operations seen in the wider area. The shallower batter is also acceptable even though the form would vary from the shape apparent along the remainder of the spur (this being more apparent in views from the south-east than the north-west).

30 There was some criticism in submissions and evidence of buffer planting that would, being in a row, seem a foreign landscape element in this valley. We are not persuaded to accept that view given the rows of trees that can readily be seen and the potential for any land owner to alter the existing landscape by the removal or addition of plantings. The benefit is in favour of new plantings rather than omit them.

31 Several potential off-site amenity impacts were identified in submissions by the Council and some Respondent Objectors. The key concerns focus on the potential for noise, dust and other airborne emissions.

32 There are several potential sources of noise that may impact on nearby dwellings primarily from the quarry operations and traffic movement within and to/from the review site. We refer first to noise generated by quarrying and associated activities. No blasting or use of explosives is required to quarry limestone. Noise would occur in Stage 1 for the removal of topsoil by scrappers and thereafter through the removal and sorting of material by a bulldozer and a conveyor. There is also the potential for noise associated with reversing beepers on vehicles. On this matter the Applicant stated:

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The Stage 1 works are not expected by the Applicant to be compliant with the Interim Guidelines for the Control of Noise from Industry in Country Victoria. That stage is expected to take a minimum of 6 weeks but may be longer dependent on weather conditions.

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Thereafter, Stages 2-4 would occur with a 5 metre high lip or batter around the deepening quarry pit and the Applicant is confident that the Interim Guidelines can be complied with although we have no expert acoustic assessment.

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Modified reversing beepers ("growler beepers") are proposed to be installed on vehicles within the site and these would have lower noise levels than regular beepers. In addition, the Applicant is willing to use its best endeavours to ensure that vehicles move in a forward motion around the site.

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Restriction on hours of operation would be accepted by the Applicant.

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The busiest time for the operation would be when lime is collected by semi-trailers and B-Doubles to take agricultural lime to northern Victoria and New South Wales this being in the early part of a year (February - late autumn).

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At other times there would be much less traffic and movement within the site other than when material is being supplied for a roadworks that could potentially see 20-30 trucks per day (40-60 truck movements).

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We were advised that crushing of stockpiled rock may occur infrequently but regularly, say once or twice a year, dependent on the material extracted from the pit. That would involve the use of a portable crusher. There would be no routine crushing involved.

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A 2 metre high mound is proposed at the edge of the subject site abutting the western boundary of the Bartlett property and that should assist to mitigate noise.

33 We accept that various measures are proposed, or can be applied by way of conditions, to minimise the potential for unreasonable noise emissions from quarrying and associated operations within the subject land. The mounding and batter/lip around the quarry area should assist in this regard. We are persuaded that with monitoring to ensure compliance with the noise emission standards set by Interim Guidelines for the Control of Noise from Industry in Country Victoria a reasonable balance can be achieved between the use of the land and amenity of adjacent land owners. We consider that there should be measuring at an early stage and then less frequently once the operation is more extensively underway. This can be addressed by way of permit conditions. We are not, however, persuaded to nominate a specific noise level to be complied with. Rather, that level should be determined by the process set out in the Interim Guidelines that is linked to background noise levels. If those background levels are measures as being low (as defined in the Guidelines) then a figure of 45 dB(A) would apply during the day (7am - 7pm) with lower limits into the evening and night (the applicable times also being set by the Interim Guidelines).

34 It is acknowledged that the first and shortest construction stage would potentially not comply with the Interim Guidelines. It would be appropriate for the permit holder to forewarn nearby residents by giving prior notice of the commencement of Stage 1 and expected timeframe for its duration. The restrictions on operating hours would still apply in this first stage.

35 There is the potential for noise on an ongoing basis associated with vehicles travelling to and from the site and particularly turning into/out of the land from N. Robilliards Road. Based on hours of operation accepted by the proponent, that would limit on-site truck loading activities to between 7.00am to 6.00pm (and until 7.00pm during daylight saving periods) on any day except Sunday and Public Holidays. No truck would be permitted to leave the site until 7.30am or after 6.15pm Monday to Friday and until 8.30am or after 12.30pm on Saturday. The nearest residences are likely to be aware of the busiest times when more vehicles are moving to and from the site but for a rural setting involving tankers and other large vehicles, and when mindful of the likely number of vehicles at peak and non-peak times, this is not a reason to warrant rejection of the permit application.

36 The other main amenity issue arising in submissions is the potential for dust. Measures are proposed to attempt to manage dust such as ground cover being planted over the stockpiles and dampening of tracks if required. We consider that a management plan including dust management should be provided to the Responsible Authority prior to the use commencing.

37 Mrs Grainger referred to the proximity of the Gale, O'Keefe, Bartlett and Serong residences to the work area and the potential for complaints to be lodged with the Council despite conditions that might be imposed by way of permit conditions. we accept that there is always such a possibility but with compliance with 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 a reasonable level of protection can be achieved for nearby residents. We also consider that a permit can provide for a process for some issues to be dealt with by a hotline number being provided to residents so that complaints can be dealt with directly between neighbours and the records being available to the Council when requested.

38 Several matters relating to the movement of vehicles to and from were raised in submissions. The proposal involves the creation of a new access point into the subject land from N. Robilliards Road. That access point would be approximately 115 metres from the Bartlett residence and close to the Gale dwelling. There are concerns about the adequacy of sightlines in a setting where cars, trucks and school buses use the road.

39 The proposed access point is located on a section of road where sightlines in both directions are limited by a crest in the road (leading up a hill) and a bend. This road is used by various modes of transport including larger vehicles that service the Gale dairy, and stockyards at the current entry to the review site. Existing road traffic includes milk tankers and feed grain trucks as well as being a school bus route.

40 The amount of truck traffic generated by the proposal would be able to be accommodated on the road network, whether local roads or the arterial links. We agree that sightlines are restricted on N.Robilliards Road and, dependent on the design speed selected, partial compliance with VicRoads sightline standards would be achieved for cars. The standards for trucks would be compliant based on a design speed of 80km/hr. We also note that the Council has conceded that safe access to the site can be designed.

41 The amount of truck traffic will be limited much of the year although there will be busier periods. Based on Mr Brian's evidence, detailed design for the access point would include appropriate signage forewarning of trucks entering into the road network particularly given that cars do travel at speed along these roads despite hazards in doing so. The same type of warning signage can be seen throughout rural areas forewarning of logging vehicles and moving stock. It is also relevant that the sightlines available to a truck, involving a person sitting high in a cabin, are much better than for the driver of a car as shown on the sightline information provided to us.

42 The form of access point is in debate between the Council and permit applicant. The Council proposed the use of a type AU intersection treatment in accordance with the AUSTROADS publication 'Guide to Traffic Engineering Practice, Part 5 - Intersections at Grade, 2005'. The permit applicant proposed a lesser BA intersection. Both forms of intersection would require widening the current road carriageway to provide space for a vehicle to pass. The design preferred by the Council is to provide for a vehicle to pass at a higher speed. We understand from Mr Brian's evidence that the BA design has been assessed as meeting a safety audit. However, given the partial compliance with VicRoads standards for cars, we find it necessary for the higher standard intersection to be adopted thereby facilitating movement at higher speeds by cars and minimising risks to road users. We will, however, word a condition to allow an alternative to be negotiated.

43 As we have indicated, we consider that the provisions of Clause 52.17 do not apply to any part of the proposed development as extractive industry is exempt and the proposed works are associated with such a use.

44 Mrs Grainger said that a separate permit application would be required for the removal of roadside vegetation including referral to DSE. We are not persuaded to that view because the new access point and track are part and parcel of the permit application (as amended) insofar as they are required in association with an extractive industry of a type that is exempt from the provisions of Clause 52.17.

45 On the evidence of Mr Shepherd, there are 123 trees within vicinity of the proposed works with these being concentrated to the southern portion of the review site. These are predominantly messmate. We note that there is a Section 173 agreement relating to that land in association with its subdivision. A total of 10 trees would be removed to provide for the 8 metre wide access road. Trees close to the road would not be removed and instead measures are proposed in the arborist report to protect them[10]. To provide for the proposed new access into the review site, using a BA intersection treatment, an additional 18 trees would be removed. Again recommendations have been made by Mr Shepherd as to how works should be undertaken to minimise the potential for damage to existing and retained vegetation including arborist involvement on-site. Off-sets have been proposed by Mr Shepherd, at a rate of 20:1 resulting in 560 trees and shrubs. We were advised that this would be additional to planting shown on the application plans and, despite arguing that the Clause 52.17 exemptions apply, Mr Nelson stated that the proponent would accept the obligation to provide offsets by way of a permit condition.

46 We are satisfied that the proposed accessway has sought to select a route that would minimise vegetation removal and, on the evidence of Mr Shepherd, involves trees of lower retention value. A route further east, to avoid more trees, would bring the accessway close to the Bartlett residence and closer to the crest of the hill. On balance, we think that the location is acceptable when also considering the ability to fence and manage that vegetation (that has otherwise been exposed to stock) and an offset program. The intersection treatment would involve the removal of native vegetation and an AU intersection would require more to be removed than the BA design which Mr Shepherd assessed. That will require additional offsets. These matters can be dealt with by permit conditions.

47 Mrs Hardman's submission raises a number of issues in relation to the potential of the proposal to impact on the environmental values of the Curdies River catchment and submits that an environmental impact study should be undertaken.

48 For reasons set out above, we are satisfied that, subject to permit conditions, there is sufficient information to make an informed decision about the permit application without the need for an environmental impact study. We are satisfied that conditions relating to vegetation removal, offsets for vegetation removed, drainage plans and arborist input can ensure that the environmental qualities of the catchment should be protected. We also give weight to the fact that the local Catchment Management Authority did not object to the permit application subject to conditions being included on any permit to be issued.

49 A related concern of some nearby property owners is the potential for the proposal to impact on bore water which is relied upon as a water supply. On the evidence of Mr Brian, there should be no intrusion into the clay layer below the limestone and thus bores should not be affected.

50 We summarise our findings on several other matters raised in submissions:

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Heritage. A sign close to the review site commemorates Timboon's first post office (1887). We were referred by Mr O'Keefe to remains of the Cambenora homestead near to the base of the hill from which lime would be extracted and some of the history of the locality as an early settlement. The remains of a chimney appear to be on the O'Keefe property and we understand that no artefacts or structures of early European settlement are evident on the subject land. We are not persuaded that there are grounds to reject the proposal because of its impact on any identified heritage values or sites of significance. We note that there is no Heritage Overlay in the environs of the subject land and none of the proposed works would require removal of the evidence that does remain. In relation to items of aboriginal cultural significance, we note a condition proposed by the Framlingham Aboriginal Trust that is appropriate to address a situation whereby Aboriginal cultural materials are exposed during the removal of soil for site preparations and/or in the process of quarrying activities.

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Drainage. We will require a condition that requires a drainage plan to be provided for the Council's approval prior to works commencing. The aim is to avoid any detrimental affect on the catchment.

51 In relation to permit conditions, we record that we have generally accepted the 'without prejudice' conditions proposed by the Council with some revisions discussed at the Hearing. We highlight the following:

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reduced hours proposed by the Council and accepted by the Applicant;

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amending plans to confirm distances to the O'Keefe residence, detail the location of any structures such as offices and provide details of the location of a gate to the access track to ensure that no vehicles are required to prop on the main road;

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the requirement for a landscape plan and arborist report (the former providing for offsets);

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the requirement for a land management plan;

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the requirement for acoustic testing, a hotline for nearby property owners to register complaints, and notice to be given to adjacent owners of the commencement of the use.

52 For the above reasons we find that subject to permit conditions, the proposal represents an acceptable outcome having regard to the policies and provisions of the Corangamite Planning Scheme.

We will allow the Application for Review and direct that a permit issue subject to conditions.

The development and use of the land for the purpose of an extractive industry limestone quarry, including the removal of native vegetation, in accordance with the endorsed plans.

The permit must contain the following conditions:

1 The use and development of the 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.

3 The use and development of the subject land must at all times be in accordance with the Work Authority, including the Approved Work Plan, issued pursuant to the 'Extractive Industries Development Act 1995'.

4 The extractive industry approved by this permit must not extend into the estimated 100 year ARI flood extent of the Curdies River.

5 No materials including silts from the quarry site or topsoil stockpiles are deposited in or on the Curdies River floodplain, either purposely or accidentally.

6 The all new tree plantations are underplanted with native grasses to provide a filtering function in the event of unexpected escape of stormwater.

7 The operator must prepare a property management plan to provide for response plans for fuel spills and any other events in recognition of the risk of groundwater contamination to the satisfaction of the Responsible Authority.

8 In the event of any Aboriginal cultural materials being exposed during the removal of soil for site preparations and in the process of quarrying activities the following procedure is to be implemented. Work is to immediately cease in an area of at least 30 metres around the site and a clearly visible buffer is to be established with orange safety mesh or similar. Framlingham Aboriginal Trust is to be contacted as soon as practical on 03 5567 1003.

Work cannot recommence within the protected area until representatives from Framlingham Aboriginal Trust provide formal approval.

9 Prior to the commencement of the use and/or development, plans (three copies) to the satisfaction of the Responsible Authority must be submitted for approval by the Responsible Authority. The plans must be drawn to scale, with dimensions, and be generally in accordance with the plans identified as drawing numbers Sheets 1 of 5 to 5 of 5 inclusive all marked as Revision A but modified to show the:

(a)

the works area, northern overburden stockpile and 10 metre vegetated buffer/tree plantation no less than 200 metres from the residence to the north of the subject land (O'Keefe property fronting the Timboon-Nullawarre Road).

(b)

location and design of the accessway to accord with Condition 17.

(c)

location of any shedding, offices or other structures.

(d)

provision of a gate along the proposed accessway, positioned to enable a truck to wait on the subject land if the gates are locked/closed without affecting the functioning of N. Robilliards Road.

(e)

removal of trees in accordance with the plan prepared by Brian Consulting, Project No. 04-098 "Impact of Access Road on Trees".

When approved by the Responsible Authority, the plans, together with other like reports and plans approved under this permit, will be endorsed and, upon endorsement, become part of the permit.

10 The layout of the site and the size, design and location of the buildings and 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.

11 Prior to the commencement of the use and/or development a landscape plan prepared by a suitably qualified and experienced person or firm must be submitted to and approved by the Responsible Authority. Unless such later date is agreed to by the Responsible Authority, the landscaping in accordance with the endorsed plan must be completed prior to the commencement of the nominated stage of works. The landscape plan must:

(a)

Show trees for retention;

(b)

Include a detailed planting schedule with an emphasis on indigenous species and show the location and size at planting of plants listed within the schedule;

(c)

Staging of planting and rehabilitation works;

(d)

Off-sets generally in accordance with the recommendations of Mr D Shepherd in his statement of evidence dated 13/6/2006 and any additional offsets required from additional tree removal for site access.

12 Before the development starts a report must be prepared by a suitably qualified arborist to set out measures to protect trees to be retained. The Arborist report must be to the satisfaction of the Responsible Authority. Once submitted and approved the recommendations of the arborist's report must be implemented to the satisfaction of the Responsible Authority.

13 Before the use starts a Land Management Plan must be submitted and approved detailing the construction activity proposed. The plan must include, but not be limited to:

(a)

methods for limiting escape of dust from the site;

(b)

methods for limiting escape of litter from the site;

(c)

any fencing works;

(d)

stormwater management to ensure that there is no erosion of depressions through overflow drainage created by the works.

The Land Management Plan must be to the satisfaction of the Responsible Authority. Once submitted and approved, the Plan must be complied with to the satisfaction of the Responsible Authority.

14 There shall be no blasting or use of explosives in association with the extractive industry.

15 No crushing of stockpiled material may be undertaken within 200 metres of any dwelling on an adjacent property to the satisfaction of the Responsible Authority.

16 Any on-site office facilities generating waste water must be equipped with a waste water treatment plant or septic tank system in accordance with the EPA Publication 89I, Septic Tanks Code of Practice 2003 to the satisfaction of the Responsible Authority.

17 The applicant shall design and construct the access into the land generally in accordance with the AUSTROADS publication 'Guide to Traffic Engineering Practice, Part 5 - Intersections at Grade, 2005'. The access shall be a type AU intersection with adequate sight distances unless an alternative layout is approved by the Responsible Authority. The access shall be constructed at the full cost to the permit holder and be to the satisfaction of the Responsible Authority.

18 Prior to any use or development commencing, an Emergency Management Plan and Fire Prevention Plan must be developed for the site to the satisfaction of the Responsible Authority and the Country Fire Authority.

19 Except for loading, as hereafter provided, the use and development may operate on any day (except a Sunday or Public Holiday) only between the following hours:

(a)

Monday to Friday: 7.00am to 6.00pm

(b)

Saturday: 8.00am to 1.00pm.

20 Onsite truck loading activities may only take place between 7.00am to 6.00pm (and until 7.00pm during daylight saving periods) on any day except Sunday and Public Holidays. No truck is permitted to leave the site until 7.30am or after 6.15pm Monday to Friday and until 8.30am or after 12.30pm on Saturday.

21 Noise from the site must not exceed the limits required in the Environmental Protection Authority's 'Interim Guidelines for Control of Noise in Country Victoria N3/89'.

22 Before the use and development starts, the applicant must install, in accordance with the advice of a suitably qualified and experienced noise control engineer, suitable reversing alarm systems (designed to reduce the noise level emanating from normal reversing alarms) to all vehicles involved in the extraction and processing of limestone to the satisfaction of the Responsible Authority.

23 The permit holder must use its best endeavours to ensure that the movement of cartage vehicles around the site is carried out in a forwards direction to prevent the escape of reverse alarm sounds.

24 Prior to the commencement of the use or development the applicant must at its cost, and to the satisfaction of the Responsible Authority, enter into an agreement with a suitably qualified and experienced noise control consulting engineer to have noise levels from typical activities on the land the subject of this Permit monitored not more than one month after commencement of operations under this permit and on a regular basis (not exceeding six monthly thereafter unless otherwise agreed to by the Responsible Authority) and at other times as deemed appropriate by the Responsible Authority.

25 The agreement must provide for the consulting engineer to prepare reports and forward these to the Responsible Authority not more than 14 days after each such monitoring and for the Responsible Authority to make these available for inspection free of charge. The report must identify the equipment in use at the time of monitoring and describe the nature of the activities being undertaken.

26 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.

27 Surface water must be managed in accordance with an approved drainage plan, which must be prepared before the commencement of the development to the satisfaction of the Responsible Authority.

28 Any outdoor lighting must be designed and located to the satisfaction of the Responsible Authority to prevent any adverse effect on adjoining land owners.

29 The site, including all buildings, works and landscaping, shall be maintained in a neat, tidy and safe condition in accordance with the endorsed plans to the satisfaction of the Responsible Authority.

30 On-site landscaping and rehabilitation shall be undertaken to the satisfaction of the Responsible Authority in accordance with the endorsed plans.

31 All landscaping shall be monitored, maintained and where necessary, renewed by the permit holder to the satisfaction of the Responsible Authority.

32 No less than two weeks prior to the commencement of the use, the permit holder must give written notices to all adjacent land owner/occupiers of the expected commencement date.

33 There shall be available at all times for the use of residents of neighbouring properties a telephone number or numbers ("the Hotline") so that they can call to register any complaint or comment about the operation of the site. A permanent register of all calls to this Hotline shall be maintained by the permit holder which register shall be available at all times for inspection by the Responsible Authority.

Existing View from Timboon - Nullawarre Road at Curdies River Bridge

Same View at end of Stage 4 (without proposed new plantings) from Timboon - Nullawarre Road at Curdies River Bridge

Existing View from Timboon - Nullawarre Road south-east of the review site showing proposed staging.

Same view at the end of Stage 4 (without new plantings) from Timboon - Nullawarre Road south-east of the review site.

[1] Rural Zone purpose and local policies such as Clause 21.04-3.

[4] www.ccma.vic.gov.au Corangamite Regional Catchment Strategy 2003-2008 at page 39

[9] Noting assumptions upon which the images were prepared such as the rate of tree growth.

[10] List of measures on page 13 of 26 of Mr D Shepherd's statement of evidence.