Ardill Payne and Partners v Byron Shire Council

[2018] NSWLEC 1220

Land and Environment Court

New South Wales

Medium Neutral Citation:	Ardill Payne and Partners v Byron Shire Council [2018] NSWLEC 1220
Hearing dates:	9 and 10 April 2018
Date of orders:	10 May 2018
Decision date:	10 May 2018
Jurisdiction:	Class 2
Before:	Bish C
Decision:	The Court orders: (1)   Leave is granted to rely on amended Statement of Facts and Contentions of 19 December 2017. (2)   The appeal is dismissed. (3)   Application No. 70.2016.1017.1 seeking approval for the installation of a sewage management facility within Lot 2 DP 700806, along Natural Lane, Suffolk Park is refused. (4)   The Exhibits, except Exhibits 1, H and K, are returned.
Catchwords:	APPEAL: application for onsite sewage management facility for future residential dwelling; quarry rehabilitation; ecologically sustainable development; land use conflict; protection of environment; equity; contamination.
Legislation Cited:	Byron Bay Local Environment Plan 2014 Environmental Planning and Assessment Act 1979 No. 203 Local Government Act 1993 Local Government (General) Regulation 2005 Protection of the Environment Administration Act (1991) State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
Cases Cited:	Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133
Texts Cited:	Byron Bay Council Design Guidelines for On-site Sewage Management for Single Households (2004)
Category:	Principal judgment
Parties:	Ardill Payne and Partners (Applicant) Byron Shire Council (Respondent)
Representation:	Counsel: M Staunton, Barrister (Applicant)   Solicitors: King and Wood Mallesons (Applicant) A Seton, Marsdens Law Group (Respondent)
File Number(s):	2017/135534
Publication restriction:	No

Judgment

1. COMMISSIONER: This is a deemed refusal of application number 70.2016.1017.1 (hereafter the application) seeking approval for the installation of a sewage management facility within Lot 2 DP 700806, along Natural Lane, Suffolk Park.

2. The proposed onsite sewage management facility is located in the eastern portion of Lot 2 DP 700806 (hereafter known as the site), between an unnamed creek and Lot 1 DP 123302, which is land already cleared as part of a former sand and gravel quarry, known as the Broken Head Quarry.

3. The ‘Western Quarry’ (hereafter the Quarry), is the portion of the Broken Head Quarry located west of Broken Head Road, on Lot 1 DP 123302.

4. The application is made under section 68 of the Local Government Act 1993 (LG Act) which was lodged with Byron Shire Council (Council) on 4 July 2016. The application supports a proposed 4 bedroom dwelling to be located on the site, the subject of a separate and as yet unmade development application. The proximity of the proposed building envelope, Wisconsin mound (part of the sewage management facility), both on Lot 2 DP 700806 to Lot 1 DP 123302 is provided in Exhibit K.

5. There were no resident objections to the application.

History of development at the site

6. Following a Commission of Inquiry, the (existing) Quarry was issued development consent, DA 97/0465 (DA), by the Minister for Planning on 7 May 1999 to extend the existing quarry works. The DA was supported by: an Environmental Impact Assessment (EIS) prepared by R.W Corkery & Co, of 1997; a Species Impact Statement (SIS) by Greenloaning Biostudies of 1997; and a Statement of Environmental Effects (SEE) by Baston Sand and Gravel Pty Ltd of 1999.

7. In the EIS, the site is identified as being beyond the ‘Proposed Limit of Extraction’, although within the ‘Extent of Disturbance’ due to the presence of existing dams, namely Western Silt Trap and Western Settling Pond.

8. The DA (97/0465) was subsequently modified on 10 April 2000, following a Commission of Inquiry (June - August 1999) to allow further expansion of the Quarry, including activities on the site. The modified DA consent (the Consent) was issued pursuant to s 89 and s 101 of the Environmental Planning and Assessment Act 1979 No 203 (EP&A Act).

The site

9. Lot 2 DP 700806 is an irregular shape with an area of 4.8 Hectares. The cleared area of Lot 2 DP 700806, defines the site under appeal, which formed part of the Broken Head Quarry operations.

10. The remainder of Lot 2, west of the unnamed creek is covered by dense vegetation and was not cleared as part of the quarry activities.

11. The site is surrounded to the east and north by vegetation, identified in the EIS as ‘regenerating rainforest’. The area to the west is Lot 1 P 123302, which is cleared and forms part of the former (Western) Quarry. The area to the south is the Western Settling Pond.

12. At the time of the DA (97/0465) consent in 1999, the EIS identified the site as the location of Dam S (part of the Western Silt Trap), the Western Settling Pond and ‘regenerating rainforest’.

13. Both water ponds have subsequently been filled and levelled on the site. The Western (Settling) Process Pond has been reshaped although still exists, contracting to the south of the site.

14. Natural drainage lines through the site ultimately drain into Newrybar Swamp. Overland water flow is currently controlled by a bund along the western site boundary that also reduces erosion, into the unnamed creek and the (Western) Process Pond, which is subject to Environment Protection Licence No. 4860. A shallow subsurface drain along the site’s eastern boundary controls overland flow from the upstream catchment area of the former quarry (including Lot 1 DP 123302), and discharges into the Western Process Pond.

15. The proposed Wisconsin mound, for sewage disposal under this application is located over the former Dam ‘S’.

Points of agreement and contention

16. For this appeal, the Council contends that the application should be refused on the basis of:

• Not ecologically sustainable due to inconsistency with s 89 (1) (c) and (3) the Local Government Act 1993 (LG Act);

• Does not protect the environment due to inconsistency specifically with, clauses 15 (2) (b) and (e), cl 26 (2) and (4), cl 29 (2) of the Local Government (General) Regulation 2005 (LG Reg); and

• Inconsistency with rehabilitation requirements as provided in the EIS and the Plan, resulting in significant impact to future land uses, specifically required by cl 13 (1) and (2) of the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (SEPP Mining).

17. Subsequent to joint expert conferencing on wastewater and cultural heritage, and provision of additional information by the Applicant, the following issues were resolved prior to the hearing:

• Aboriginal cultural heritage protection;

• Consideration of site characteristics;

• Location of the proposed sewage management facility on the site;

• Upper fill integrity and nearby water receptors analysis;

• Requirement for an alternative application area;

• Buffer zones to creeks; and

• Adverse impact to human health, specifically contractors.

18. Prior to the hearing, the parties agreed that the contentions that relate to potential soil (fill) and water contamination could be resolved by a deferred condition of consent (Exhibit 9).

19. At the hearing’s site inspection, the parties agreed that the issues that relate to rehabilitation along the site access road from Natural Lane could be resolved as it does not need to be widened with a revegetation plan as a condition of consent, an amendment to Exhibit 9.

Planning Framework

20. The site is zoned RU1 Primary Production, pursuant to the Byron Bay Local Environment Plan 2014 (BBLEP). Dwelling houses are permitted with consent, however pursuant to cl 6.6 of the BBLEP, essential services, such as sewage must be provided for development consent.

6.6 Essential services

Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the development are available or that adequate arrangements have been made to make them available when required:

(c) the disposal and management of sewage,

(d) stormwater drainage or on-site conservation,

(e) suitable vehicular access.

21. When determining an application for a sewage management facility, the consent authority must have regard to protection of the environment, pursuant to cl 15 (2)(b) of the LG Reg as follows:

15 Matters to be considered when determining applications for water supply, sewerage and stormwater drainage approvals

(1) This clause applies to the following activities:

(d) carrying out sewerage work,

(2) In determining an application for the purposes of section 68 of the Act for an approval to do any of the activities to which this clause applies, the council must have regard to the following considerations:

(a) the protection and promotion of public health,

(b) the protection of the environment,

(c) the safety of its employees,

(d) the safeguarding of its assets,

(e) any other matter that it considers to be relevant in the circumstances.

22. In considering the application, specifically protection of the environment, the consent authority must consider cl 29(2) and (3) of the LG Reg as follows:

29 Matters to be taken into consideration in determining applications for approval to install, construct or alter sewage management facilities

(1) In determining an application for approval to install, construct or alter a sewage management facility, the council must take into consideration the matters specified in this clause.

(2) Environment and health protection matters. The council must consider whether the proposed sewage management facility (or the proposed sewage management facility as altered) and any related effluent application area will make appropriate provision for the following:

(a) preventing the spread of disease by micro-organisms,

(b) preventing the spread of foul odours,

(c) preventing contamination of water,

(d) preventing degradation of soil and vegetation,

(e) discouraging insects and vermin,

(f) ensuring that persons do not come into contact with untreated sewage or effluent (whether treated or not) in their ordinary activities on the premises concerned,

(g) the re-use of resources (including nutrients, organic matter and water),

(h) the minimisation of any adverse impacts on the amenity of the land on which it is installed or constructed and other land in the vicinity of that land.

(3) Guidelines and directions. The council must consider any matter specified in guidelines or directions issued by the Director-General in relation to the matters referred to in subclause (2).

23. The application for a sewage management facility is made pursuant to s 68 (1) of the LG Act.

24. The operation of a sewage management facility as proposed in the application is defined under s 68A of the LG Act as follows:

68A Meaning of “operate a system of sewage management”

(1) In this Part, operate a system of sewage management means hold or process, or re-use or discharge, sewage or by-products of sewage (whether or not the sewage is generated on the premises on which the system of sewage management is operated).

(2) Without limiting subsection (1), operate a system of sewage management includes the following:

(a) use artificial wetlands, transpiration mounds, trenches, vegetation and other effluent polishing, dispersal or re-use arrangements in related land application areas,

25. In determining an application to ensure ecological sustainability, the consent authority must consider the requirements as set out in s 89(1)(c) and (2)(a) of the LG Act. Further to this, Cl 89 (3)(a) provides for protection of the environment as a public interest.

89 Matters for consideration

(1) In determining an application, the council:

(a) must not approve the application if the activity or the carrying out of the activity for which approval is sought would not comply with the requirements of any relevant regulation, and

(b) must take into consideration any criteria in a local policy adopted under Part 3 by the council which are relevant to the subject-matter of the application, and

(c) must take into consideration the principles of ecologically sustainable development.

(2) If no requirements are prescribed for the purposes of subsection (1) (a), and no criteria are adopted for the purposes of subsection (1) (b), the council in determining an application:

(a) is to take into consideration, in addition to the principles of ecologically sustainable development, all matters relevant to the application, and

(b) is to seek to give effect to the applicant’s objectives to the extent to which they are compatible with the public interest.

(3) Without limiting subsection (2), in considering the public interest the matters the council is to consider include:

(a) protection of the environment, and

(b) protection of public health, safety and convenience, and

(c) any items of cultural and heritage significance which might be affected.

26. For the application, the consent authority must consider its compatibility with existing and approved land use, as required in cl 13(2)(a), (b) and (c) of the SEPP (Mining):

13 Compatibility of proposed development with mining, petroleum production or extractive industry

(1) This clause applies to an application for consent for development on land that is, immediately before the application is determined:

(a) in the vicinity of an existing mine, petroleum production facility or extractive industry, or

(2) Before determining an application to which this clause applies, the consent authority must:

(a) consider:

(i) the existing uses and approved uses of land in the vicinity of the development, and

(ii) whether or not the development is likely to have a significant impact on current or future extraction or recovery of minerals, petroleum or extractive materials (including by limiting access to, or impeding assessment of, those resources), and

(iii) any ways in which the development may be incompatible with any of those existing or approved uses or that current or future extraction or recovery, and

(b) evaluate and compare the respective public benefits of the development and the uses, extraction and recovery referred to in paragraph (a) (i) and (ii), and

(c) evaluate any measures proposed by the applicant to avoid or minimise any incompatibility, as referred to in paragraph (a) (iii).

27. The relevant guidelines required under s 29 (3) of the LG Reg for consideration are the ‘Design Guidelines for On-site Sewage Management for Single Households’ (2004) (hereafter the Guidelines) prepared by Byron Shire Council, and specifically section 5.1.6, regarding buffers to surface waters and section 5.1.12, regarding geotechnical detail.

Expert Evidence

28. The Applicant has relied on Mr Mark Free and Mr Andrew Norris for expert evidence in ecology and wastewater engineering, respectively.

29. The Respondent relied on Dr David Sharpe and Mr David Bristow for expert evidence in ecology and wastewater engineering, respectively.

30. Dr Shaun Canning, engaged by the Applicant provided expert reports for Aboriginal cultural heritage (Exhibits C and D), although was not required to give evidence.

Protection of the environment and ecological sustainability

31. The Council contends that the proposed location of the sewage management facility, and specifically the location of the Wisconsin mound, on the site without effective rehabilitation is inconsistent with ensuring protection of the environment and ecologically sustainable development principles. The issue relates to the potential for:

1. contamination of connected land and water resources;

2. impact to the site and adjoining land amenity;

3. impact to existing and future ecologically significant vegetation and threatened species; and

4. limiting riparian vegetation rehabilitation.

32. The Applicant considers that the proposed sewage management facility results in negligible impact to the surrounding environment due to its location on the site and proposed design with sufficient operational/maintenance controls will support ecologically sustainable development.

Evidence

33. The wastewater experts agree that based on current water quality data (Exhibit A), there are no mobile contaminants discharging from the site. The experts also agree that the proposed sewage management facility will not adversely impact human health due to the proposed effluent treatment design and expected quality of the effluent discharged when properly managed. The operation and maintenance of the facility is addressed by conditions of consent.

34. Both experts agree that Dam S on the site was not the location of a ‘natural’ wetland and has now been infilled with material from an unknown source. It was also agreed that the Consent provides for the water infrastructure formerly part of the quarry operation to be rehabilitated into a series of wetland habitats that extend across Lot 1 DP 123302 and Lot 2 DP 700806, including the site.

35. In the hearing, the wastewater experts discussed whether the wetland habitat system could function effectively if Dam S was not rehabilitated as a wetland habitat.

36. Mr Norris is of the view there is negligible risk to the functioning of a wetland habitat established on Lot 1 DP 123302 as a result of the application (focused on the Wisconsin mound), provided the wetland ponds on this lot are impermeably lined. The effect of the wetland lining would be to prevent any potential contamination from the proposed Wisconsin mound into the wetland.

37. As a result of the clay infill beneath the mound, he considers that a 100 m buffer to a wetland habitat on Lot 1 DP 123302 and 25 m to the unnamed creek is sufficient to reduce any adverse subsurface interaction from the mound.

38. Although the buffer distances from the mound to the Lot 1 wetlands and the unnamed water course are technically a breach of the Council’s Guidelines (for onsite household sewage disposal), the experts agree that there are mitigating factors to permit this non-compliance for the proposed application at the site.

39. Mr Bristow was of the opinion that a wetland system on Lot 1 DP 123302 would not effectively function without a wetland over former Dam S.

40. Mr Bristow considers that a wetland system could function with a liner, although subsurface drains along the eastern side of the wetland ponds would be needed to control stormwater overflow as the ponds would be unable to drain to the subsurface. He agreed with Mr Norris that the potential for subsurface contamination sourced from the mound was not a significant risk to the environment.

41. Mr Bristow did however question the quality of the fill and suggested there was insufficient information on the fill material to understand the potential for mobilisation of in-situ contaminants as a result of operation of the mound.

42. The wastewater experts agreed that the lack of information on contamination potential of the fill could be addressed by a deferred commencement condition of consent to mitigate any potential risk.

43. The ecological experts concur, provided in Exhibit 4, with the wastewater experts on the adequacy of the proposed buffer from the (Wisconsin) mound to Lot 1 DP 123302 wetland habitats, and to the existing unnamed watercourse.

44. Dr Sharpe commented that clearing of the site was extensive, although still within the ‘Proposed Limit of Disturbance’, as defined by the EIS.

45. He noted however that the cleared area across the site requires rehabilitation as defined in the Plan, which is not limited to the construction of a wetland habitat. In Exhibit 3, Dr Sharpe states ‘The Plan required rehabilitation of the western quarry area, including the Site, to re-establish the main vegetation communities that occur; Blackbutt open forest and rainforest. Moreover, the settling ponds located in the western quarry sector, including on the Site, were to be rehabilitated as artificial wetlands’. He also notes that the ponds on the site have subsequently been filled in and ‘as such are no longer compatible to be rehabilitated as artificial wetlands.’

46. Further to this, Dr Sharpe observes that the application could reduce the establishment of the endangered ecological communities (EEC) and expose the EEC to weed infestation. He considers that the sewage management facility at the site may impact common and threatened flora/fauna species. He is of the opinion that ‘the proposal to rehabilitate the former quarry was a means to managing the risk of extinction to threatened species and degradation of EEC vegetation..’

33. The potential for elevated nutrient levels casing weed infestation to the creek was also raised by Dr Sharpe.

34. Dr Free contends that the ‘potential area of rehabilitation to be foregone for the sewage management facility is small’. The planting of the mound with grasses and shallow rooted shrubs would not increase the risk of ‘edge effects’ or weed invasion. He did however agree that invasive tree species, such as a Fig tree, should be prevented from establishing on or around the mound.

35. Dr Free considers that the application will result in a minor impact to existing vegetation surrounding the site and would not limit rehabilitation on adjoining areas, such as lot 1 DP 123302.

Findings

50. Condition 18 of the Consent, required a Flora and Fauna Management Plan (the Plan), which was prepared by Greenloaning Biostudies Pty Ltd and submitted for the Western Quarry on April 2000.

51. Condition 18.2 of the Consent required the Plan to ‘Address, where relevant, but not limited to, measures/strategies to’, and with particular relevance to the site in Condition 18.2.7, ‘Revegetate/rehabilitate cleared areas’.

52. The Plan, states that the ‘final extent of areas to be cleared was modified slightly’, and with regards to the site, it was proposed to be cleared for ‘infrastructure’.

53. It is noted in the EIS that Lot 2 DP 700806, including parts of the site are/were covered by the habitat identified as ‘regenerating rainforest’, which is a habitat of the Eastern Long-Eared Bat (Bat), a threatened species. No actual siting of a threatened species was observed on the site, according to the SIS.

54. It is also noted that the adjoining Lot 1 DP 123302, is mapped in the EIS as cleared and covered by ‘Wet Sclerophyll Forest’, and therefore does not share the same vegetation habitat as the site.

55. The Plans’ primary objective (Exhibit 2) is ‘to provide management strategies that will encourage the protection of threatened species and enhancement of their habitats within the Western Quarry sector…. The management strategies apply specifically to habitats within the approved areas of disturbance and immediate environs…’

56. The process of rehabilitation as established in the Plan was intended to revegetate habitats for threatened species, to promote re-population and is ‘designed to minimise the impacts of threatening processes so that threatened and regionally significant species utilising the Western Quarry Sector can persist on the Project Site in the future’.

57. The Plan establishes the Quarry’s long term rehabilitation objectives as: ‘To leave all land disturbed by quarrying and related activities as a safe, stable and well drained land form with a vegetative cover developing over the medium to long term towards an appropriate array of the communities naturally occurring in the area’. It is clear from the objectives of the Plan that the site was specifically intended to be rehabilitated with a vegetative covering to allow regenerating rainforest communities to re-establish and support the habitats of local threatened species.

58. I agree with the Respondents expert to the requirement, provided in the Plan, to revegetate the site consistent with ‘regenerating rainforest’, and it therefore is a determinative factor in assessing protection of the environment.

59. The Applicant has not proposed to regenerate any portion of the site as per the Plan, and by doing so has not recognised the interconnectedness with rainforest habitats on surrounding areas. Insufficient evidence on the consequence, if any, of excising a portion of the proposed rehabilitation area (being the site) to the overall rehabilitation of the quarry and associated areas has been provided. There remains some uncertainty in my mind as to the potential for impact to the surrounding environment and achieving the Plan’s rehabilitation objective provided above.

60. Further to this, the Plan provided for a wetland habitat to be developed over the final silt traps, specifically stating rehabilitation for the water holding structures as ‘The conversion of these to wetlands will take place subject to the proposed post –quarrying land uses’. It was agreed by the parties that the site is the location of the ‘Western Silt Trap’, identified as Dam S.

61. I agree with the wastewater experts that the sewage management facility disposal mound’s limited interconnection to groundwater and ‘natural’ drainage lines directed through Lot 1 DP 123302 rather than the site (and likely further altered by dam infill) suggests that the area proposed for the sewage management facility is not a natural ‘sink’ for hydrological processes. The conversion of Dam S into a wetland habitat may not therefore have any environmental benefit to the effective rehabilitation of the site or adversely impact rehabilitation effectiveness on the site or adjoining Lot. It is therefore not considered a determinative factor in further assessing protection of the environment.

62. In determining the protection of the environment, the consent authority, pursuant to cl 29(2) of the LG Reg must consider the following as relevant to the site and application:

1. (c) preventing contamination of water – Evidence from the wastewater experts indicates that the proposed design and treatment process of the facility, including the Wisconsin mound will limit any potential offsite water quality impact to nearby watercourses and groundwater. I agree with this understanding.

2. (d) preventing degradation of soil and vegetation – I agree that the mound has the potential to result in proliferation of weeds into local water courses and across adjoining lands if left unchecked, although consider relying on a condition for maintenance by the householder to not mitigate this risk sufficiently. Without the regenerating rainforest on the site, soil and surrounding vegetative habitats, including those on the remainder of Lot 2 DP 700806 could be adversely impacted.

3. (h) minimisation of any adverse impacts on the amenity of the land on which it is installed or constructed, and other land in the vicinity of that land – as stated previously, I consider the absence of regenerating rainforest across the site could adversely impact adjourning areas, and therefore would impact amenity of these areas.

63. The other issues for consideration in cl 29 (2) of the LG Reg are agreed by the parties which relate to the proposed design, maintenance and operation procedures as provided for in the draft conditions of consent (Exhibit 7).

64. The application therefore does not satisfy the environment protection matters as a requirement for approval to install and construct a sewage management facility at the site, pursuant to cl 29(1) of the LG Reg.

65. Further to this, when determining the sewage management facility application for the purposes of s 68 of the LG Act, the consent authority must have regard to s 89 of the LG Act.

66. As stated previously, the application is not contrary to relevant Council policy and is therefore consistent with s 89(b) of the LG Act.

67. With regards to s89(1)(c) of the LG Act, ecologically sustainable development must be achieved pursuant to s(6)(2) of the Protection of the Environment Administration Act (1991) (POEA Act) as follows:

6 Objectives of the Authority

(2) For the purposes of subsection (1) (a), ecologically sustainable development requires the effective integration of social, economic and environmental considerations in decision-making processes. Ecologically sustainable development can be achieved through the implementation of the following principles and programs:

(a) the precautionary principle--namely, that if there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.

In the application of the precautionary principle, public and private decisions should be guided by:

(i) careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment, and

(ii) an assessment of the risk-weighted consequences of various options,

(b) inter-generational equity--namely, that the present generation should ensure that the health, diversity and productivity of the environment are maintained or enhanced for the benefit of future generations,

(c) conservation of biological diversity and ecological integrity--namely, that conservation of biological diversity and ecological integrity should be a fundamental consideration,

68. The Applicant has not adequately justified the implications to the surrounding habitat as a consequence of not undertaking rehabilitation as required in the Plan, and provided ‘reason for postponing measures to prevent environmental degradation’, pursuant to s 6(2)(a) of the POEA Act. The application of the precautionary principle is appropriate, as the Applicant has not provided any details for consideration of how the development in its entirety will function in its environment. The application does not satisfy s 6(2)(a) of the POEA Act due to lack of scientific certainty to the ‘threats of serious or irreversible environmental damage’.

69. This is consistent with Preston CJ in Telstra Corporation Limited v Hornsby Shire Council [2006] NSWLEC 133 at [128], where he refers to the significance and requirements for applying the ‘Precautionary Principle’ to protect the environment and achieve ecologically sustainable development as follows:

The application of the precautionary principle and the concomitant need to take precautionary measures is triggered by the satisfaction of two conditions precedent or thresholds: a threat of serious or irreversible environmental damage and scientific uncertainty as to the environmental damage. These conditions or thresholds are cumulative.

70. Further to this, I find that the Applicant has not satisfied requirement s 6(2) of the POEA Act to ensure, (b) intergenerational equity, or (c) conservation of biological diversity and ecological integrity. I am of the opinion that the intent of the Consent, as contained in Condition 18, for rehabilitation of the site as a ‘regenerating rainforest’ habitat capable of supporting the Eastern Long-Eared Bat, was intended to achieve s 6(2)(b) and (c) of the POEA Act. The application for a sewage management facility at the site does not seek to rehabilitate the site as a ‘regenerating rainforest’.

71. As a consequence, the application does not fully comply with the ‘requirements of any relevant regulation’, namely s 6(2) of the POEA Act, and therefore pursuant to s 89(1)(a) of the LGA Act cannot be approved.

72. Section 89(1)(b) of the LGA Act is not an issue for the application and s 89(2) is addressed by s (89)(1)(a) above.

73. In applying s 89(1)(c) of the LG Act, as previously established, the application is not consistent with ecologically sustainable principles without the rehabilitation of the site, as required by the Consent.

74. With regards to s (89)(3) of the LG Act, the parties have agreed that the application does not adversely impact (b) public health, safety or convenience; and (c) cultural and heritage significance, and is therefore not at issue.

75. With regards to s (89)(3)(a) of the LG Act, relating to the protection of the environment, I find that the application could potentially adversely impact public interest due to the uncertainty achieving conservation of biological diversity/ecological integrity, and intergenerational equity. The inconsistency with implementing the required rehabilitation as required in the Plan does not protect the environment and is not in the public interest.

76. It therefore follows, that the application does not satisfy cl 15(2)(b) of the LG Reg, on the basis of failure to adequately protect the environment.

77. I therefore find that the application applied for pursuant to s 68 of the LG Act should be refused.

Consistency with future land use

78. The key issue raised by Council is that the site is required to be rehabilitated consistent with the Consent, and that the application conflicts with the required rehabilitation of the site and adjoining land, specifically Lot 1 DP 123302.

79. The disagreement between the parties is the ‘starting position for rehabilitation’ for the Quarry’s associated areas of disturbance, namely the site.

Expert evidence

80. The wastewater experts agreed that the presence of the Wisconsin mound on the site ‘would limit the ability of the area to be rehabilitated where such rehabilitation requires a landform inconsistent with the mound finished surface or where vegetation other than grass or shallow rooted shrubs are required’.

81. The requirement for rehabilitation and implications of rehabilitation on the site and Lot 1 DP 123302, in the opinion of the experts, has been addressed previously.

Finding

82. The parties agree that the EIS, Exhibit H, provides guidance for the DA, and clearly defines the requirement for rehabilitation, which is confined within the ‘Area of Extraction’, except on the eastern margin of the Western Quarry. The site is the location of Dam S, labelled as the Western Silt Trap, and not identified for rehabilitation. The site is located outside the ‘Area of (Final) Rehabilitation’ as shown in Exhibit H and L, from the EIS.

83. The parties also agree that subsequently, the (modified DA) Consent imposed 22 conditions to ‘protect the environment and community amenity… and to ensure rehabilitation of the quarry is carried out’ (Exhibit 2). Schedule 2 of the Consent, Condition 1 specified ‘The development is to be carried out in accordance with the Environmental Impact Statement dated October 1997… and Species Impact Statement dated October, 1997 …, except as varied by the conditions imposed in this consent.’

84. Further to this, Condition 18 of the Consent, requiring a Flora and Fauna Management (the Plan), specified:

18. Within six months from the date of this consent and prior to clearing, the Applicant shall have prepared….., a detailed Flora and Fauna Management Plan. The Plan shall:

18.2. address, where relevant, but not limited to, measures/strategies to:

18.2.7. revegetate/rehabilitate cleared areas;

85. Map A in the Consent shows the eastern portion of Lot 2 DP 700806, including the site, within the ‘Proposed Limit of Disturbance’, containing ‘Existing Infrastructure (cleared)’ and ‘Proposed Infrastructure (to be cleared)’. The remainder of Lot 2 is outside the ‘Limit of Disturbance’.

86. There is no dispute by the parties that the site is located within an ‘Area of Disturbance’ in the Western Quarry, as defined by the Plan. It follows that the intent of the Plan was to re-establish fauna and flora habitats, as provided for in the Plan, including in areas identified in the Consent as ‘disturbed’ and therefore includes the site.

87. There appears to be a distinction between the DA and the Consent (modified DA), and as a consequence requires the site to undertake rehabilitation.

88. The application is for a component of a broader activity associated with a residential dwelling, proposed as a future use of the site. For this appeal I am only required to assess the sewage management facility, which without the benefit of the full development application makes it difficult to understand the full potential implications on the site and its surrounding habitats.

89. I agree with the Applicant that the future use of the site was not established in the Consent, however disagree, for the following reasons, that the sewage management facility is consistent with the current and approved land use for the site, which I consider to be rehabilitation associated with the Quarry operated under the Consent.

90. With regards to the requirement for revegetation of ‘regenerating rainforest’ on the site, I agree with the Respondent that the Consent required the site to be rehabilitated accordingly, as specified in the Plan in the areas that were cleared. The Consent’s rehabilitation details provided in the Plan, intended to include the disturbed areas that were associated with quarrying activity, and not previously addressed in the DA (and EIS).

91. I therefore find that the proposed use for a sewage management facility on the site is contrary to the requirements of Condition 18 of the Consent, as no further rehabilitation consistent with the Plan is proposed in the application.

92. In assessing compliance with cl 13 of the SEPP (Mining), a consent authority, is required to consider the following:

1. Cl 13(2)(a)(i) – the existing and approved use of land around the site is determined by the Consent as quarrying activities with rehabilitation. The application is therefore inconsistent as it proposes no further rehabilitation as specified in the Plan. The Plan specifically requires the cleared area of the site (part of Lot 2 DP 700806) and adjoining Lot 1 DP 123302 to be rehabilitated to support fauna habitats as specified in the EIS.

2. Cl 13(2)(a)(ii) – the application will not have significant impacts to current or future extraction of quarry materials as the sewage management facility will not result in adverse water quality or degradation of quarry material on Lot 1 DP 123302.

3. Cl 13(2)(a)(iii) – the application is incompatible with the existing use, which for the site is deemed to be for quarrying activities (infrastructure) with associated rehabilitation, consistent with the Consent and the Plan.

4. Cl 13 (2)(b) – pursuant to the requirements for assessing public benefit provided in cl 89 (c) of the LG Act, as determined previously there is no public benefit relating to the protection of the environment. The application potentially impacts biological diversity and intergenerational equity without appropriate rehabilitation.

5. Cl 13(2)(c) –The proposed vegetation on the site is limited to vegetation species that are inconsistent with a ‘regenerating rainforest’ as required in the Plan. The Plan provided a holistic approach to rehabilitation of the Quarry, and without the rehabilitation of the site, could result in a corridor of non-compatible vegetation species affecting the re-establishment of threatened species across the surrounding area.

93. For the reasons above, I find that the application is inconsistent with cl 13 of the SEPP (Mining).

Orders

94. Consequently, the orders of the Court are as follows:

1. Leave is granted to rely on amended Statement of Facts and Contentions of 19 December 2017.

2. The appeal is dismissed.

3. Application No. 70.2016.1017.1 seeking approval for the installation of a sewage management facility within Lot 2 DP 700806, along Natural Lane, Suffolk Park is refused.

4. The Exhibits, except Exhibits 1, H and K, are returned.

…………………….

Sarah Bish

Commissioner of the Court

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Decision last updated: 10 May 2018