Birdon Contracting Pty Limited v Hawkesbury City Council

[2009] NSWLEC 1395

Land and Environment Court

of New South Wales

CITATION:	Birdon Contracting Pty Limited v Hawkesbury City Council [2009] NSWLEC 1395
PARTIES:	APPLICANT Birdon Contracting Pty Limited RESPONDENT Hawkesbury City Council
FILE NUMBER(S):	11133 of 2008
CORAM:	Brown C
KEY ISSUES:	CONSENT ORDERS :- modification application - extraction of sand - objections - whether substantially the same development - whether designated development
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Regulations 2000
CASES CITED:	Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
DATES OF HEARING:	17,18 August 2009
EX TEMPORE JUDGMENT DATE:	18 August 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Webster SC SOLICITORS Russell C Byrnes Solicitors RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 August 2009

11133 of 2008 Birdon Contracting Pty Limited v Hawkesbury City Council

JUDGMENT

1 COMMISSIONER: This matter comes before the Court for consent orders in relation to an application to modify development consent DA 013/95 for the extraction of sand at Lot 2 DP 628806, 6102 Singleton Road, Colo Heights.

2 Development consent DA 013/95, in general terms, provides for:

• a maximum extraction of 2 million tonnes of sand,
• a maximum sand extraction of 100,000 tonnes annually,
• a lifespan of 25 years, with consent lapsing on 23 December 2021,
• truck movements between 8 and 16 daily, and
• a final landform to allow grazing and a large dam.
The proposed modifications

3 The application proposes to modify conditions 1, 2, and B3.

4 Condition 1 states:

“The development shall be carried out in accordance with plan number PS91/E130 dated April 1996 and documentation of Environmental Impact Statement dated 1 November 1995 as amended”.

5 The amended wording for condition 1 proposed by the applicant states:

“The development shall be carried out within the Extraction Area shown on drawing No SK 2, Job No PS91/E130 and in accordance with documentation of Environmental Impact Statement dated 1 November 1995 as amended by conditions of consent and the Environmental Management Plan referred to in condition 27”.

6 The applicant has provided the following reasons for the proposed modification. The first reason is that since consent was granted there has been confusion as to which plan consent condition 1 is referring to as PS91/E30 is the job number used by the drafting service and not a discrete plan number. As a result, there are many figures, plans and other matters that are notated as PS91/E130.

7 The second reason is that the configuration of the extraction area and operating procedures will change over time as a result of ongoing extraction and improved extraction techniques. These changes are most appropriately addressed as part of the Environmental Management Plan (EMP) required by condition 27 on a yearly basis rather than defined stages. The suggested wording change to condition 1 will enable the development to be undertaken within the extraction area as defined in the Environmental Impact Statement (EIS) and in accordance with the current EMP. The modification to this condition also has the effect of moving the extraction area further to the west, but still within the extraction area defined in the EIS and the maximum amount of sand allowed to be extracted.

8 Condition 27 states:

“A site environmental management plan shall be prepared within one month of the date of this approval to address:
(a) on-site materials management;
(b) daily operating procedures;
(c) erosion and sediment controls;
(d) emergency contingency plans;
(e) on-site drainage processes to ensure water quality.”

9 The amended wording for condition 27 proposed by the applicant states:

“A site environmental management plan (EMP) shall be prepared within one month of the date of this approval and reviewed at least every twelve months thereafter. The EMP shall address:
(a) extraction staging and rehabilitation;
(b) on-site material management;
(c) daily operating procedures;
(d) erosion and sediment controls;
(e) emergency contingency plans;
(f) on-site drainage processes to ensure water quality.

10 The applicant states that the reason for the proposed modification is to provide for twelve monthly reviews and to address changes to staging plans.

11 Condition B3 states:

“The sand extraction not exceeding a yield of 100,000 tonnes per year”.

12 The amended wording for condition B3 (now condition 35) proposed by the applicant states:

“ The sand extraction not exceeding a yield of 125,000 tonnes per year”.

13 The applicant states that the reason for the proposed modification to condition B3 is to increase the maximum permissible annual production to enable the quarry to respond to increased market demand but still remaining within the overall extraction limits of the development consent, that is 2 million tonnes and other consent conditions, such as truck movements.

The assessment considerations

14 Following consideration by the council of an earlier decision to refuse the modification application, the appeal now comes before the Court for consent orders. In accordance with Practice Note - Class 1 Development Appeals (cll 35 and 36), the “consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has properly taken into account.”

15 In this regard, two persons, Mr Neville Diamond and Mr William Sneddon, maintained their opposition to the proposed modification application. A legal agent, Mr Tom McLaughlin, represented Mr Diamond and Mr Sneddon at the hearing. Mr McLaughlin provided written submissions on the site view on the first day of the hearing that raised the following main objections:

1. The development proposed by the s 96 modification application is not substantially the same development as originally approved.
2. The development proposed by the s 96 application is designated development, and as such cannot be approved.
3. The environmental management plan is flawed.
4. The council’s draft conditions of consent are flawed.
5. The report of the council is unreliable.
Findings

16 On the first objection, s 92(2)(a) requires that the Court “must be satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted”. In Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298, Justice Bignold (at 390) identified the relevant test. His Honour stated:

“The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is essentially or materially the same as the (currently) approved development. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper context (including the circumstances in which the development consent was granted).”

17 In this case I am satisfied the development, if modified in accordance with the application, will be substantially the same as development consent DA 013/95. While the area of extraction will be changed to a relatively small degree, and the manner of the extraction will be changed through the use of annual EMP’s rather than an overall staging plan, the proposed development provides the same plant, the same operational controls such as hours of operation, the same overall extraction output, (that is 2 million tonnes), at least the same number of truck movements (and potentially less), the same time limits on extraction, and generally the same finished land form. In qualitative and quantitative terms, the modified development is essentially or materially the same as the approved development.

18 On the second objection, Regulations 35 and 36 in Sch 3 Pt 2 of the Environmental Planning and Assessment Regulations 2000 are relevant. Regulation 35 requires the Court to form an opinion on whether the alterations and additions to the development significantly increase the environmental impacts of the total development. If the opinion formed by the Court is in the negative, then the development is not designated development. Conversely, if the opinion is in the positive, then the development is designated development. In forming an opinion, the Court is to consider those matters set out in reg 36. These matters relate to:

• previous environmental management performances,
• rehabilitation or restoration,
• the number and natures of all past changes,
• the scale, character or nature of the proposal,
• existing vegetation, air, noise, and water quality, scenic quality and any special features,
• the degree to which the potential impacts can be predicted,
• the capacity of the receiving environment,
• any mitigation measures, and
• compliance with relevant standards.

19 In considering the factors in reg 36, I am satisfied that the proposed development will not significantly increase the environmental impacts of the total development. The main areas of dispute related to the non-compliance with the approved staging plans, the effect on groundwater, ecological modelling and the use of dredge fines for batters to the finished dam.

20 Mr Peter Jamieson, a civil engineer, provided a response to the engineering issues raised by Mr McLaughlin. Mr Jamieson states that while the staging of the extraction and the following restoration and revegetation identified in the EIS had not been strictly followed, the amended proposal to provide excavation through an annual EMP is sound and more responsive to changing conditions rather than the rigid staging plan in the EIS. Mr Jamieson states that the change to the operation of the extraction is a fundamental component of the modification application.

21 On this matter, I accept the evidence of Mr Jamieson. The modification application proposes that the finished form of the extraction will be consistent with that anticipated when the original approval was granted. While the extraction has not been consistent with the approved staging plan, I agree with Mr Jamieson that the use of an annual EMP is more responsive to changing conditions and does not necessarily affect the future rehabilitation, revegetation of the extracted area and ultimately the finished form of the extraction area. Also, and while there is now a small area of extraction outside the approved area to the west, it is still within the area defined in the EIS.

22 There was some dispute over the groundwater report of Mr Jewell, a consultant appointed by the council, and the evidence of Mr Jamieson although it was not a dispute raised by the council. In this regard I am satisfied that the additional and more comprehensive modelling undertaken by Mr Jamieson, after Mr Jewell’s desktop assessment of the groundwater data, should be preferred. The results of Mr Jamieson’s modelling post-dates Mr Jewell’s assessment and have been considered by the council and the Department of Environment and Climate Change (as it was called at the time) and found to be acceptable. The impact on the existing groundwater and Tinda Creek was found to be small, and have an impact of less than 1%. Similarly, I am satisfied that any concerns over ecological modelling have been acceptably addressed by the further monitoring. The results of this monitoring were also acceptable to the Department of Environment and Climate Change.

23 Other matters raised by the objectors relate to the use of dredge fines for batters to the finished dam. I note that the modification application does not seek to modify the method of dealing with drainage fines beyond the use of the material for batters. The proposal is consistent with the Department of Environment and Climate Change general terms of approval, to reduce the size of open water as much as possible.

24 The matters raised by Mr McLaughlin fall generally within reg 36(a)(i) and (ii), but in my view, and are not matters that would lead the Court to form an opinion that the alterations and additions to the development significantly increase the environmental impacts of the total development or create a significant environmental impact and consequently would categorise the development as designated development. The other matters in reg 36 do not raise any matters, in my view, that would change this conclusion.

25 Of the other matters raised by Mr McLaughlin, I am satisfied that the contents of the EMP are acceptable and satisfactorily address the environmental management controls, monitoring and reporting, and emergency and contingency measures. The conditions of consent also satisfactorily address the proper management of the site. Given the limited scope of the modifications, it is not necessary to comment on the concern over the report of the council.

26 For these reasons, there are no matters that would lead the Court to decline to make the consent orders.

27 Consequently, the orders of the Court, by consent are:

1.The appeal is upheld.
2. The application under section 96 of the Environmental Planning and Assessment Act 1979 is approved. The development consent of Hawkesbury City Council numbered DA0134/95 dated 23rd day of December 1996 is modified so as to read as follows
1 The development shall be carried out in accordance with the Environmental Impact Statement dated 1 November 1995 as amended and the Environmental Management Plan as approved or as amended by conditions of this consent.

2 The area to be used being limited to the area shown on Figure 1.2 of Environmental Management Plan, dated June 2009 (RO8_V1/1731_111.dgn). In this regard this area is to be permanently pegged by a registered surveyor with an appropriate fence constructed to easily define the area on the ground.

3 Deleted

4 Erosion and sedimentation control devices shall be installed and maintained during the ongoing operation. Details of the proposed devices to be installed are to be submitted and approved by Council.

5 All necessary works being carried out to ensure that stormwater flow from adjoining properties is not impeded.

6 All trucks arriving or leaving the site shall have their loads/trays suitably covered to prevent spillage from the truck onto the road.

7 Deleted

8 Payment of Section 94 Contributions under the provisions of the Environmental Planning and Assessment Act 1979 towards the repair, reconstruction and maintenance of the roads based on 64.41 cents per tonne as at March 2009 of material to leave the site. This contribution will be used for the roadworks external to the site and towards the RTA’s road maintenance program.

The contribution will be based on monthly tonnage to leave the site, with the applicant to submit to Council records of material removed. The said contribution will be paid on a monthly basis at the rate nominated and will be reassessed annually based on the Sydney Consumers’ Price Index.


9 Dust control measures e.g. vegetative cover, mulches, irrigation, barriers and stone shall be applied to reduce surface and airborne movement of sediment blown from exposed areas.

10 Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by running water to be stored clear of any drainage line, easement or natural watercourse.

11 Submission of the necessary applications for any future building construction on the site.

12 No advertising structures to be erected, displayed or affixed on any building or land without prior approval. Any unauthorised advertising structure will be removed at the expense of the advertiser.

13 Deleted

14 Operating hours shall be limited to 7.00am to 5.00pm Mondays to Fridays and 7.00am to 1.00pm Saturdays. Any alteration of these hours will require the approval of the Director City Planning.

15 All waste material shall be regularly removed from the property.

16 Deleted

17 (a) Groundwater monitoring is to be undertaken for the life of the quarry operations at the six locations shown on Figure 3.2 of the Environmental Management Plan, dated June 2009 (RO8_V1/1731_116.dgn). Groundwater levels are to be monitored monthly. Groundwater quality is to be monitored six-monthly and is to include pH, conductivity, nitrate, ammonia and Total Petroleum Hydrocarbons (TPH). Groundwater quality monitoring is to be reported annually. Monitoring boreholes are to be 12 metres deep, screened from 3 to 12 metres, and to be constructed as standard groundwater monitoring wells with:
• 50mm uPVC screw-jointed casing and screen;
• An appropriate filter pack;
• Bentonite annular seals; and
• Lockable monuments.
  
(b) Should the proposed water quality controls fail a contingency plan is to be submitted to Council, within 3 months of the failed readings, for approval.

18 Deleted

19 Maximum number of on-site employees, other than employees/contractors involved in truck haulage, shall be restricted to fifteen (15). Any increase in employment would require reassessment of the adequacy of on-site facilities for sewerage water, carparking and the like.

20 All road and driveway surfaces shall be regularly watered to dampen the surface in order to reduce dust generation.

21 Deleted

22 Deleted as works already undertaken.

23 All drainage channels shall be constructed to avoid turbulence and scouring.

24 (a) Revegetation Plan shall include the use of seed mixes (including endemic plant material) which reflect the changing seasons and provide short to medium term soil stability. Native grasses should be used as a supplementary secondary stabiliser. No kikuyu grass to the used.

(b) A qualified Bush Regenerator shall be engaged to specify and supervise all revegetation works.


25 Banks of the diversion drainage channel and perimeter mounding shall not exceed a slope of 1:3 (V:H).

26 The batter of the ponds and dam shall not exceed a slope of 1:3 (V:H).

27 The Environmental Management Plan (EMP) (prepared by Umwelt, dated June 2009) shall be complied with at all times during the life of the quarry operations. The EMP shall be reviewed at least every 12 months or as required during this period and submitted to Council. The EMP shall address:


(a) extraction staging and rehabilitation
(b) onsite material management
(c) daily operating procedures
(d) erosion and sediment control
(e) emergency contingency plans
(f) on site drainage processes to ensure water quality
(g) an update in regard to monitoring required by Condition 17 (a) and the requirements of Condition 37; and
(h) Waste Management for day to day operations.

The annual review of the EMP is to include an independent audit of the implementation of the plan requirements.


28 A professional archaeological survey being carried out for the site by a suitably qualified person to particularly assess the site's aboriginal heritage potential. (Agreement that this work has been undertaken, noted May 2009)

29 All general stormwater shall be diverted around the work site other than any controlled inflow to maintain water levels within the work site.

30 All water falling on or contained within the work site shall be retained within the work site and not permitted to leave the site otherwise in accordance with a licence issued by the DECC.

31 The erection of truck warning signs with distance plates located 200m on approved sites to the access to the development.

32 The payment of a bond or bank guarantee of $50,000 for rehabilitation and restoration of the extractive industry operation. Should the plan of rehabilitation not be carried out in accordance with the plan, this money will be used for such work. The performance bond for rehabilitation of the site will be reviewed annually with a review of the condition of consent.

33 The applicant (extractor) is to lodge an annual report indicating compliance or otherwise with the conditions of approval of the consent and conformance with any other permits or licences as issued by any other government agency.

34 Sand extraction shall not exceed 125,000 tonnes per year.

35 The sand mining operation shall cease upon extraction achieving 2,000,000 tonnes or a period of 25 years from the date of the consent approval being 23 December. 1996

36 All diversion drains are to be located wholly within the property and where a drain is constructed along a common property boundary its location is to be confirmed by a registered surveyor.

37 The following recommendations from the independent assessment report prepared by CM Jewell and Associates Pty Ltd for Hawkesbury City Council dated June 2007 are to be implemented.
• Dams and drains on the site that are not required for the extraction operation, stock or domestic purposes should be removed within 12 months of the approval of this consent or as agreed in writing by Hawkesbury City Council.

• An appropriate quarry closure plan detailing the eventual closure of the site at the completion of extraction operations be prepared for Council approval. The plan should seek to minimise long-term impacts on the hydrology of Tinda Creek and not result in lower catchment outflows to Tinda Creek. The closure plan is to be submitted to, and approved by, Council three months prior to the closure or completion of the extraction operation.

  Department of Environment and Climate Change Conditions

  1 The proposed upgrade of the stormwater diversion drain is implemented as a priority.
  2 The proposed drain must be upgraded and sloped such that all stormwater runoff entering the drain is not impeded as it flows to Tinda Creek.
  3 The proposed diversion drain must be stabilised with appropriate materials to stop erosion such as matting, riffle areas with rocks boulders and gravel, native aquatic and semi aquatic vegetation, which can all be sourced locally.
  4 Appropriate sediment capture devices must be installed at various locations along the diversion drain to stop sediment being washed into Tinda Creek during wet weather.
  5 Maintenance plans must be prepared and implemented to ensure that the stormwater diversion drain is maintained in a proper and efficient manner at all times.
  6 The mine must only operate within the area specified within the current consent.
  7 The current ecological study being undertaken, as required in the Pollution Reduction Program, attached to the licence (number 12007), must be completed to ensure a full assessment of any downstream impacts on the biota of Tinda Creek. It should be noted that this study is required by DECC as a previous ecological study undertaken was not carried out satisfactorily and did not address all the issues raised. (Agreement, noted May 2009, that this work has been undertaken)
  8 The proponent must fully assess what impact the increased extraction from 100,000 to 125,000 T/per annum will have on the sub-catchment and its receiving waters.
  9 To ensure a minimum environmental long term impact, remediation of the site must include restoring the mined area’s native flora as much as practicable to ensure the local ecosystem returns to tits former condition.
  10 As part of a remediation action plan to minimise evapotranspiration from open water DECC recommends that open water areas be reduced as much as possible.
  11 The proponent must apply to DECC to vary the Environment Protection Licence (No. 12007) to vary the current licence activity scale, and to incorporate the above as special conditions of the licence.

3 No order as to costs.

4. The exhibits are returned.

___________________

G T Brown
Commissioner of the Court