BGC Quarries (Australia) Pty Ltd and Shire of Northam and Ors
[2006] WASAT 149
•9 JUNE 2006
BGC QUARRIES (AUSTRALIA) PTY LTD and SHIRE OF NORTHAM & ORS [2006] WASAT 149
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 149 | |
| PLANNING AND DEVELOPMENT ACT 2005 (WA) | |||
| Case No: | DR:32/2002 | DETERMINED ON THE PAPERS | |
| Coram: | MR J JORDAN (MEMBER) | 9/06/06 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | The application for review has been allowed and the proposed quarry has been granted conditional approval | ||
| B | |||
| PDF Version |
| Parties: | BGC QUARRIES (AUSTRALIA) PTY LTD SHIRE OF NORTHAM BRIAN DIBBLE SIMON SOROKINE |
Catchwords: | Town planning – Development – General rural zoned land – New hard rock quarry adjacent to existing hard rock quarry – Conditional approval granted under Environmental Protection Act 1986 (WA) – Draft consent orders filed by applicant and local government – Submission by second respondent on draft consent orders – Approval granted subject to conditions |
Legislation: | Environmental Protection Act 1986 (WA) Planning and Development Act 2005 (WA) |
Case References: | Nil Nil |
Orders | On the application determined on the papers by Member James Jordan on 9 June 2006, it is ordered that:,1. The application for review is allowed.,2. Planning approval is granted for the proposed quarry on Lot 14, subject to compliance with the following conditions:,(i) The applicant shall, as soon as reasonably practicable, upon completion of each management plan prepared for the purposes of the proposed use provide a copy thereof to the Shire of Northam.,(ii) The applicant shall not load quarried material into trucks or permit the movement of trucks in or out of the site between the hours of 11 pm and 6 am with the exception that it may permit trucks loaded with quarried material and weighed prior to 11 pm to leave the site after loading and weighing, provided those trucks leave immediately after loading and weighing has been completed.,(iii) The applicant shall ensure, as much as reasonably practicable, that all lighting and fixed sirens on the site are to be orientated away from residences on land adjoining the site as at the date of this consent.,(iv) Access to the site is to be located within 300 metres of the southern end of the eastern or western boundary of Lot 14, provided that in the event that the applicant acquires title to the existing Voyager Quarry site and access road on Lot 7, access to Lot 14 must utilise the existing access road.,(v) The applicant shall consult with the Shire of Northam to identify an approved location for placement for overburden removed off site by the applicant, and the applicant shall not place overburden in any location which has been rejected or refused by the Shire of Northam.,(vi) The applicant shall ensure that blasting procedures and methodology are designed so as to ensure that no flyrock leaves the site boundary.,(vii) The applicant shall ensure that buildings the subject of the recording of baseline data in the original McDowall Affleck Pty Ltd Survey in 2003 shall be inspected and assessed against that baseline data by an independent consultant every two years, to identify whether any structural damage to the buildings has been caused by blasting at the site. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : PLANNING AND DEVELOPMENT ACT 2005 (WA) CITATION : BGC QUARRIES (AUSTRALIA) PTY LTD and SHIRE OF NORTHAM & ORS [2006] WASAT 149 MEMBER : MR J JORDAN (MEMBER) HEARD : DETERMINED ON THE PAPERS DELIVERED : 9 JUNE 2006 FILE NO/S : DR 32 of 2002 BETWEEN : BGC QUARRIES (AUSTRALIA) PTY LTD
- Applicant
AND
SHIRE OF NORTHAM
First Respondent
BRIAN DIBBLE
SIMON SOROKINE
Second Respondents
Catchwords:
Town planning – Development – General rural zoned land – New hard rock quarry adjacent to existing hard rock quarry – Conditional approval granted under Environmental Protection Act 1986 (WA) – Draft consent orders filed by applicant and local government – Submission by second respondent on draft consent orders – Approval granted subject to conditions
(Page 2)
Legislation:
Environmental Protection Act 1986 (WA)
Planning and Development Act 2005 (WA)
Result:
The application for review has been allowed and the proposed quarry has been granted conditional approval
Category: B
Representation:
Counsel:
Applicant : Mr M Hotchkin
First Respondent : Mr C Slarke
Second Respondents : Mr A Roberts
Solicitors:
Applicant : Hotchkin Hanley
First Respondent : McLeods
Second Respondents : Minter Ellison
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The Shire of Northam refused the application by BGC (Australia) Pty Ltd to develop a granite quarry on Lot 14 at The Lakes, adjoining the Voyager Quarry which is nearing the end of productive life.
2 The Minister for the Environment issued conditional approval for the development. BGC (Australia) Pty Ltd and the Shire of Northam then prepared draft consent orders for planning approval for the new quarry. The adjoining neighbour, Dr Dibble, who was party to the application before the Tribunal, criticised certain of the orders and recommended changes.
3 The Tribunal has considered the draft orders and the concerns raised by the neighbour, and has granted conditional planning approval for the proposed quarry.
Draft consent orders
4 The applicant and first respondent, the Shire of Northam (the Shire), prepared and signed a draft "Minute of Consent Orders" dated 20 April 2006. The minute included seven conditions of approval.
5 As ordered by the Tribunal, Dr Dibble, one of the second respondents, was provided with the opportunity to comment on the proposed consent orders. The two other parties were then afforded the opportunity to make submissions in reply to Dr Dibble's submissions.
6 Dr Dibble advised that he:
"(a) agrees with conditions 1, 3, 5 and 6;
(b) objects to conditions 2 and 4; and
(c) would like to clarify condition 7."
Condition 2
7 Condition 2 states:
"The applicant shall not load quarried material into trucks or permit the movement of trucks in or out of the site between the hours of 11.00pm [sic] and the 6.00am [sic] with the exception that it may permit trucks loaded with quarried material prior to
(Page 4)
- 11.00pm [sic] to leave the site after loading provided those trucks leave immediately after loading has been completed."
8 Dr Dibble said the noise of trucks exiting the quarry would have a significant impact on the amenity of surrounding residents and particularly on his amenity. He said that the applicant's noise expert's evidence at the hearing was that trucks entering and exiting the site were a source of noise that had not been included in the observations and calculations in the expert's report on noise.
9 Dr Dibble provided a reworded condition 2 which would not allow loading of quarried material into trucks or permit the movement of trucks into or out of the site between 10 pm and 7 am weekdays, 1.30 pm Saturday until 7 am Monday, and not at all on public holidays.
10 The applicant referred to the noise expert's evidence that haul trucks taking finished product away from the site were a constant source of noise not changed from that of the existing quarry operation. The modelling done for the applicant was of potential change in noise impact from relocated dominant equipment on the site.
11 The Shire, when it was a party to the draft consent orders, had available to it the residents' submissions on what they considered was the impact on their amenity of the existing quarry and of the proposed new quarry. The Tribunal considers the Shire was in a position to form a view of the impact on the local amenity of the truck movements. The Shire then received a copy of Dr Dibble's submission on the draft consent orders. The Shire made no submission in reply to Dr Dibble's submission.
12 Dr Dibble submitted that the conditions imposed by the Minister for the Environment had failed to deal specifically with noise emitted by trucks entering and exiting the quarry and this was a deficiency.
13 The evidence shows that the movement of trucks with finished product was known to the Minister for the Environment in considering the existing quarry operation and was not identified as a key environmental factor in the consideration of the proposal.
14 The Tribunal does not consider that absence of an environmental condition on the movement of trucks with finished product indicates a gap in the knowledge of the Minister for the Environment or that the approach of the Shire to the issue provides a basis for reopening the consideration of evidence as proposed by Dr Dibble. The Tribunal has concluded that
(Page 5)
- there is not a basis for examining the issue afresh in the consideration of the draft consent orders.
15 Dr Dibble asked that, if the hours of operation were accepted, the condition require either that there be no loading or movement of trucks after 11 pm, or that trucks be required to leave the site by 11.15 pm. The applicant objected to any change.
16 The Tribunal has agreed with the applicant that there is sufficient certainty in the draft consent order that trucks leave immediately. The Tribunal has noted, however, that the evidence of the applicant's noise expert was that the trucks would move from the stockpile to the weighbridge and then to the highway. From this, stopping to be weighed appears as an act that interrupts the trucks leaving immediately upon being loaded. It is considered therefore that loading and weighing should be completed prior to 11 pm so that the object of leaving immediately can be achieved. Condition 2 can be amended to accommodate this.
Condition 4
17 Condition 4 required that:
"Access to the site is to be located within 300m [sic] of the eastern or western boundary of Lot 14, provided that in the event that the Applicant [sic] acquires title to the existing voyager quarry [sic] site and access road on Lot 7, access to Lot 14 must utilise the existing access road."
18 Dr Dibble submitted that this order was uncertain, and under the order, trucks may enter and exit the quarry near his property which abuts the northern boundary of Lot 14. The eastern and western boundaries of Lot 14 extend about 3000 metres north from Great Southern Highway to his property. He provided a map with an east-west black line a maximum of about 300 metres north of the southern boundary of Lot 14 which he submitted should be the northern limit of access to Lot 14.
19 The applicant said the intended agreement reached with the Shire was that vehicles access the site from the south within 300 metres of either of the western or eastern boundaries of Lot 14.
20 The condition does not reflect what might have been intended. The Tribunal finds that the condition should be amended to read "… the southern end of the eastern or western boundary of Lot 14 …"
(Page 6)
Condition 7
21 Condition 7 in the draft minute reads:
"The Applicant shall ensure that buildings the subject of the recording of baseline data in the original survey in 2003 shall be inspected and assessed against that baseline data by an independent consultant every two years, to identify whether any structural damage to the buildings has been caused by blasting at the site."
22 Dr Dibble asked that in the interests of certainty the words "McDowell Affleck Pty Ltd" be inserted between the words "original" and "survey". The applicant agreed.
23 The Tribunal finds that condition 7 can be amended accordingly.
Orders
1. The application for review is allowed.
2. Planning approval is granted for the proposed quarry on Lot 14, subject to compliance with the following conditions:
1) The applicant shall, as soon as reasonably practicable, upon completion of each management plan prepared for the purposes of the proposed use provide a copy thereof to the Shire.
2) The applicant shall not load quarried material into trucks or permit the movement of trucks in or out of the site between the hours of 11 pm and 6 am with the exception that it may permit trucks loaded with quarried material and weighed prior to 11 pm to leave the site after loading and weighing, provided those trucks leave immediately after loading and weighing has been completed.
3) The applicant shall ensure, as much as reasonably practicable, that all lighting and fixed sirens on the site are to be orientated away from residences on land adjoining the site as at the date of this consent.
4) Access to the site is to be located within 300 metres of the southern end of the eastern or western boundary of Lot 14, provided that in the event that the applicant acquires title to the existing Voyager Quarry site and access road on Lot 7, access to Lot 14 must utilise the existing access road.
- 5) The applicant shall consult with the Shire to identify an approved location for placement for overburden removed off site by the applicant, and the applicant shall not place overburden in any location which has been rejected or refused by the Shire of Northam.
6) The applicant shall ensure that blasting procedures and methodology are designed so as to ensure that no flyrock leaves the site boundary.
7) The applicant shall ensure that buildings the subject of the recording of baseline data in the original McDowall Affleck Pty Ltd Survey in 2003 shall be inspected and assessed against that baseline data by an independent consultant every two years, to identify whether any structural damage to the buildings has been caused by blasting at the site.
I certify that this and the preceding [23] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR J JORDAN, MEMBER
0
0
2