Buttai Gravel Pty Ltd v Independent Planning Commission

[2025] NSWLEC 1525

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Buttai Gravel Pty Ltd v Independent Planning Commission [2025] NSWLEC 1525

Hearing dates:

17-21, 24-28 March 2025, final written submissions 11 April 2025

Date of orders:

23 July 2025

Decision date:

23 July 2025

Jurisdiction:

Class 1

Before:

Walsh C and Young AC

Decision:

The Court makes the following orders:

(1) The appeal is dismissed.

(2) State significant development application SSD 6612 for the Martins Creek Quarry Project is refused.

(3) The exhibits are returned with the exception of Exhibits A, B, C, D, 6, 17 and 21 which are retained.

Catchwords:

DEVELOPMENT APPLICATION – appeal – hard rock quarry – State significant development –pedestrian safety – traffic safety – traffic flow – uncertainty of impacts of intended road improvements – social baseline – negative social impacts related to quarry product road haulage – negative amenity impacts of quarry product road haulage – feasibility of rail haulage – economic benefits of the quarry – strategic benefits of quarry to major infrastructure – negative consequences outweigh benefits – insufficient information

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 4.15, 4.17, 4.36, 4.38, 4.40, 4.5, 8.7,

Land and Environment Court Act, s 39

Roads Act 1993, s 138

Dungog Local Environmental Plan 2014

Environmental Planning and Assessment Regulation 2000, cl 49

State Environmental Planning Policy (Planning Systems) 2021, s 2.6, 2.7, 2.10, Sch 1

State Environmental Planning Policy (Resources and Energy) 2021, ss 2.17, 2.22

Cases Cited:

Australian Protein Recyclers Pty Limited v Goulburn Mulwaree Shire Council [2006] NSWLEC 641

Dungog Shire Council v Hunter Industrial Rental Equipment Pty Limited [2019] NSWLEC 132

Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 2) [2018] NSWLEC 153

Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3

Gloucester Resources Limited v Minister for Planning [2019] NSWLEC 7

Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147

Jonah Pty Limited v Pittwater Council [2006] NSWLEC 99

Kouflidis v Salisbury City Corporation (1982) 29 SASR 321

New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154

Ralph Lauren Pty Ltd v New South Wales Transitional Coastal Panel [2018] NSWLEC 207

Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105

Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88

Texts Cited:

Austroads Guide to Road Safety Auditing, 2020

NSW Road Noise Policy, 2011

Noise Policy for Industry, 2017

Social Impact Assessment Guidelines, 2023

Michael Porter, Competitive Strategy (1980)

Category:

Principal judgment

Parties:

Buttai Gravel Pty Ltd (Applicant)
Independent Planning Commission (First Respondent)
Maitland City Council (Second Respondent)
Dungog Shire Council (Third Respondent)

Representation:

Counsel:
N Eastman SC and L Sims (Applicant)
H El-Hage SC and H Morgan (Solicitor) (First Respondent)
T To and A Hannam (Second Respondent)
M Wright SC and A Harker (Third Respondent)

Solicitors:
Sparke Helmore (Applicant)
Crown Solicitors Office (First Respondent)
Moray and Agnew Lawyers (Second Respondent)
Lindsay Taylor Lawyers (Third Respondent)

File Number(s):

2023/252084

Publication restriction:

Nil

JUDGMENT

The refusal of a fresh development application for Martins Creek Quarry is appealed

Background

The site and locality

Pre-existing quarry operations

Recent quarry-related activities and legal proceedings

The development application: amendments, consultation and assessment

Application before the Court

Assessment framework

State Significant Development

Dungog Local Environmental Plan 2014

State Environmental Planning Policy (Resources and Energy) 2021

Development control plans

Issues in dispute

Road safety and traffic considerations

Background

Contentions relating to this topic

Expert Evidence

Four intended sites for road works

Procedural considerations

Owner’s consent

Findings

Merits considerations

Site 1 - New Quarry Access Road and Dungog Road

Site 2 - Gostwyck Bridge

Site 3 - Gresford Road and Dungog Road

Site 4 - King Street and Duke Street Paterson

Finding

Inter-relating ss 4.15(1) and 4.38(1) of the EPA Act

Residual road safety concerns

Expert evidence

Findings: residual road safety considerations

Impact on the Melbourne St/New England Highway intersection in East Maitland

Evidence

Findings

Noise impacts

Contentions relating to this topic

General acceptance that the proposal is adequate with respect to noise-related regulatory criteria

Haulage route noise

Operational noise

Social impact

Social impact assessment guidance

Contentions relating to this topic

The process of social impact assessment in support of the proposal

Social baseline

Differing expert interpretations

Finding

Foundations of Social Impact Assessment accompanying proposal

Finding

Particular social impacts

Selected topics and evaluation approach

Note on expert evidence

Social impact related to quarry trucks and pedestrian and vehicle safety

Finding

Vulnerable groups

Finding

Social impacts related to amenity

Findings

Strategic benefits of the proposal

Contentions relating to this topic

Question to the parties and response

Buttai Gravel’s reference material

Demand for hard rock as of relevance to the proposal

Supply

Findings

Localised benefits

Findings

Rail feasibility

Context

Insufficient information

Balancing competing factors in evaluation of the development application

Selected further statutory considerations

Conclusion

Orders

JUDGMENT

The refusal of a fresh development application for Martins Creek Quarry is appealed

1. The applicant in these appeal proceedings is Buttai Gravel Pty Ltd (BG). BG is the operator of Martins Creek Quarry (quarry), an existing hard rock quarry enterprise located in the Dungog Shire Council (DSC) Local Government Area (LGA). BG appeals under s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal of a fresh development application (DA) which would provide for an expansion of currently approved quarry operations and associated development.

2. The DA is State significant development within the meaning of s 4.36(1) of the EPA Act, and the consent authority is the NSW Independent Planning Commission (IPC), the first respondent in the proceedings. The IPC’s reference number for the DA is SSD-6612. The IPC refused the DA on 13 February 2023, after the NSW Department of Planning and Environment had recommended consent be granted subject to conditions.

3. The DA is seeking consent to extract, process and transport by road and rail up to 1.1 million tonnes per annum (Mtpa) of quarry materials, including expansion into a new extraction area. A defined quarry truck haulage route from the quarry to the New England Highway at Maitland passes through both Dungog LGA and Maitland LGA. Maitland City Council (MCC) and Dungog Shire Council (DSC) were joined to the proceedings as second and third respondents, respectively.

4. Briefly here, we have determined that the appeal should be dismissed and the DA refused. There are two principal aspects behind the reasoning for this decision. The first aspect is based on the need to balance the public interest in approving or disapproving the project. While there are certainly beneficial aspects to the proposal, the negative consequences outweigh benefits. The beneficial impacts of the DA relate principally to the supply of the quarry's product for the construction sector and particularly for infrastructure projects of public significance. The negative consequences are particularly in relation to adverse traffic and pedestrian safety implications and social and amenity related impacts in the local area. The second aspect is based on our finding that BG has not made its case in relation to certain matters which warranted further resolution. Each aspect is individually determinative in this matter.

Background

The site and locality

5. The quarry site is located near the village of Martins Creek, approximately 7 km north of the village of Paterson in the Hunter Valley region of NSW (see Figure 1).

6. The quarry is located off Station Street, Martins Creek and includes a rail spur, which is connected to the Main North Coast railway line. The quarry site is described in the Applicant’s Closing Submissions, dated 27 March 2025, (ACS) par 12 as comprising Lot 6 in DP 1298985, Lot 5 in DP 242210, Lot 42 in DP 815628, Lot 1 in DP 1006375, Lot 1 in DP 204377 and Lots 4 and 6 in DP 249026.

7. The site is bound by the North Coast Rail Line to the west, Vogeles Road to the south and a densely vegetated ridgeline to the north and east. To the north of the site is the locality of Vacy. Existing road access to the site is via Grace Avenue and Station Street in Martins Creek. The site’s rail spur connects to the North Coast Rail Line providing access to Newcastle, Sydney and Regional NSW.

8. Apart from Martins Creek village itself, the predominant land use in the quarry environs is agricultural. Rural residential land use has become prominent more recently, with land subdivision and housing to the north and south of the Martins Creek village and in Vacy (Ex A Tab 04 p 1.4).

9. The quarry product haulage route is 28 kms in length from the site to the New England Highway at East Maitland (indicated in blue in Figure 1). The route passes through quite a range of land uses including agricultural areas, Paterson village in Dungog LGA and the developing areas of Bolwarra and Bolwarra Heights before entering Maitland town centre.

Pre-existing quarry operations

10. The hard rock quarry has been operating since it was established in around 1914, initially by Department of Railways. The quarry was established to supply railway ballast and other quarry product for the State’s rail network. Expansion of quarry operations has occurred over time, with rail or transport related authorities operating the quarry until 2012. Since then, Daracon Group entities have operated the quarry.

11. For clarity here we note that in some of the evidence "Daracon" and "Buttai Gravel" are used to describe the applicant, interchangeably.

12. The site of the quarry operations (and for the current DA) can be thought of as comprising two distinct areas, which can be referenced as the western land (located northwest of Station Street), and the eastern land (located northeast of Station Street). The quarry commenced in the eastern land. When, in about 1991, the eastern land's andesite rock was fully exploited, the State Rail authority (SRA) obtained the western land and sought consent to operate a quarry on it primarily for obtaining railway ballast.

Figure 1 – Site setting with “primary haulage route” identified in blue (Source: Umwelt, Amended Development Application and Response to Submissions (Ex A Tab 04 p 1.3))

Figure 2 – Quarry site (Source: IPC Bundle (Ex A Tab 19A Department’s Assessment Report p 3))

13. In 1991, DSC granted a development consent (DA 171/90) to expand quarrying activities into the western land subject to conditions. The development was described in a notice of determination as (Second and Third Respondent’s Bundle Ex 18 Tab 9 p 222):

“An extractive industry (designated development) being a quarry, winning material primarily for railway ballast.”

14. The 1991 development consent did not include a limit on the volume of material permitted to be extracted from the site and did not have any expiry date. Notably, Condition 6 of DA 171/90 stated that the operator must not transport more than 30% of the quarry products by road without further specific approval from DSC (First Respondent’s Closing Submissions dated 27 March 2025 (IPC-CS) par 6).

15. Quarrying operations commenced in the western land in approximately 1993. In May 1999, DSC resolved to accept that the quarry had continuing use rights for part of Lot 1 DP 1006375 for the processing of material of up to 449,000 tonnes per annum (tpa). Environment protection licence no. 1378 (EPL 1378) granted on 27 April 2000 allowed extraction to 500,000 tpa.

16. Today, the quarry produces hard rock extractive materials used in rail, concrete, asphalt and general civil construction across the Hunter, Central Coast, Northern NSW and Sydney Metropolitan areas. The rail spur on the site has historically been primarily used to supply railway ballast for regional rail infrastructure projects.

Recent quarry-related activities and legal proceedings

17. For circumstances that become clearer when issues relating to impact evaluation are in attention, it is necessary to provide a considerable mapping-out of recent history.

18. In 2012, it was Hunter Industrial Rental Equipment Pty Ltd (another Daracon Group company) which commenced to operate the quarry. In 2015, DSC commenced proceedings against this entity in the NSW Land and Environment Court (LEC) seeking enforcement orders in respect of alleged breaches of the EPA Act and the 1991 development consent, including that the quarrying operation was no longer primarily for obtaining railway ballast. A judicial review of a variation of EPL 1378 for the quarry dated April 2007, permitting the extraction of 2 million tpa, was also sought (IPC-CS par 11). A factor here was alleged quarry product road haulage considerably exceeding the consent requirement that the operator not transport more than 30% of the quarry products by road (now evident from Ex K which provides an historical picture of “historical road tonnages from 1993-2025”).

19. DSC was largely successful in its LEC claim and consequential declarations and orders were made by Molesworth AJ on 12 October, 2018: Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No. 2) [2018] NSWLEC 153 (Hunter Industrial 1). Certain orders were made restraining use, but with a related stay to such orders for a period of 3 months, during which operations were to be conducted in accordance with an Interim Environmental Management Plan (IEMP) (attached at Annexure C to that judgment). An aspect of the stay of the restraining orders was the Court’s supposition, on the evidence, of the advanced status of a development application seeking to legitimise the quarry and related transport activities, and which would require a full merits review by the consent authority.

20. While there were a number of exclusion provisions, safeguards and the like, the IEMP included the following:

“1. No more than 650,000 tonnes of product will be dispatched from the Quarry by road in any twelve month period.

2. No more than 130 laden trucks will be dispatched from the Quarry in one calendar day.

3. No more than 30 laden trucks will be dispatched from the Quarry in any 1 hour period.”

21. Orders were also made declaring the EPL variation invalid.

22. Acting Justice Molesworth heard and declined to grant a stay of his orders by further judgment dated 10 January, 2018: Dungog Shire Council v Hunter Industrial Rental Equipment Pty Ltd (No 3) [2019] NSWLEC 3.

23. Hunter Industrial Rental Equipment Pty Ltd lodged an appeal against this LEC decision which was dismissed by the Court of Appeal in May 2019: Hunter Industrial Rental Equipment Pty Ltd v Dungog Shire Council (2019) 101 NSWLR 1; [2019] NSWCA 147 (Hunter Industrial 2). The Court of Appeal also declared with respect to Lots 5 and 6 DP 242210, at Order 2A(1) that:

“… the consent to development application 171/90/79 granted by Dungog Shire Council (“the consent”) permitted use of the land only as a quarry primarily for the purpose of winning material for railway ballast, in breach of which the appellants have since 2012 used the land otherwise than primarily for winning railway ballast, in breach of the Environmental Planning and Assessment Act 1979 (NSW) (“the Planning Act”), s 4.2(1)(a).”

24. Order 6 in the Court of Appeal findings included the following:

“Order that the appellants by themselves, their employees, agents and assigns, be restrained from:

(a) using the land otherwise than as a quarry primarily for the purpose of winning railway ballast; and

(b) excavating rock on lot 6 DP 242210 without a consent granted for such activity under the Planning Act; and

(c) permitting the transport of greatly more than 30% of the quarry products derived from rock excavated from the land, and whether processed on the land or on adjoining land, including lot 1, DP 1006375, by public road on an annual basis without the specific approval of Dungog Shire Council.”

25. These restraining orders were stayed for a 3-month period or until “the determination of the State significant development application lodged by the appellants with respect to the land”, whichever is the earlier. The stay was subject to operations being conducted in accordance with the IEMP referenced in this judgment at [19]. Orders were also made confirming the EPL variation invalid.

26. Finally, in regard to legal proceedings up until the case before us now, on 21 August 2019, Hunter Industrial Rental Equipment Pty Ltd brought a notice of motion to the LEC seeking to extend the stay made by the Court of Appeal for a further 12 months. In September 2019, Duggan J determined to dismiss the motion (Dungog Shire Council v Hunter Industrial Rental Equipment Pty Limited [2019] NSWLEC 132 (Hunter Industrial 3)).

27. Based on the orders of the Court of Appeal determination, the development consent and EPL 1378, the key elements of the approved quarry operations can be summarised as follows (Ex A Tab 19A p 5):

28. According to Ex K, from 2002-2003 to 2018-19 the tonnes per annum transported by road from the quarry exceeded 400,000. During the period of 2019-20, haulage rates complied with current approvals (133,048 tpa vs in the order of 150,000tpa agreed as permissible). For the most recent five years, referenced in Ex K, road haulage rates have been very low.

Figure 3 - Historical road tonnages (Source Ex K)

The development application: amendments, consultation and assessment

29. The DA was lodged with the Department of Planning and Environment, accompanied by an Environmental Impact Statement (EIS) (Ex 2 Tab 9). Henceforth, for references to the Department of Planning and Environment, or its later equivalents, the abbreviation “the Department” will be used. The DA sought approval for (among other activities) an expansion to the existing quarry operations to enable the extraction of up to 1.5 million tonnes per annum (Mtpa) of hard rock materials for a period of 30 years (IPC-CS, par 15-16). The DA and EIS were publicly exhibited between October and November 2016. In response, 873 submissions were received with 419 objections, 447 in support and 7 providing comment.

30. After further interaction with the Department, in May 2021, BG lodged an amendment to the DA and further impact assessment work with the Department. The amended application sought approval for extraction of 1.1 Mtpa of quarry product material over 25 years transported by road and rail, with road haulage up to 500,000 tpa. Among numerous other provisions, no trucks would pass through Paterson Village before 6:45am. The amending documents were publicly exhibited in June and July 2021. In response, 670 submissions were received with 634 objections, 31 in support and 5 providing comment (IPC-CS par 24-25).

31. In August 2021, the Department requested BG to respond to issues raised in the submissions. BG provided a Revised Project Submissions Report in November 2021 (Ex 2 Tab 25 and Ex A Tab 8). On 5 October 2022, the Department provided to the IPC its assessment report (Department’s Assessment Report), finding that “the benefits of the project outweigh its residual costs, and that the project is in the public interest”. It was found by the Department that the project warranted approval, subject to nominated conditions of consent (Ex 2 Tab 27).

32. In November 2022, the IPC invited further direct public submissions in respect to the proposal and a public meeting was held. 1453 submissions were received with 931 objections, 517 in support and 5 providing comment. On 23 November 2022, the IPC wrote to the Department seeking further information from it, and BG, in respect of a number of matters (IPC-CS par 32 and 34). Further information was provided. This resulted in further amendments to the DA with a reduction in the volume of quarry product materials to be transported by road to 450,000 tpa along with a reduction in the daily road haulage truck movements from 280 to 180 movements on the primary haulage route. The IPC sought submissions on these amendments during December 2022 and January 2023 and received 89 submissions (IPC-CS par 36-39).

29. On 13 February 2023, the IPC refused the Revised SSDA and issued a Statement of Reasons for Decision (Ex 2 Tab 43).

30. As indicated above, the proposal has been on public exhibition a number of times. There is extensive documentation of lay submissions in the material before the Court. More recently, the objecting submissions have been notably more numerous than those supportive. Positive submissions commonly related to local economic benefits and the wider strategic need for the quarry material. The main topics raised by those who objected were traffic and safety implications, social impacts and amenity impacts (IPC-CS par 33).

31. A number of further points on lay submissions can be noted relating to events closer to the hearing. First, is that following a pre-trial mention on 11 March 2025, and after some planning options relating to traffic and pedestrian management for Paterson village were prepared on behalf of BG, a public exhibition of these plans occurred, via IPC’s website. Some 342 public submissions were received by the time of the closing of the notification period on 26 March 2025 (Ex 30). Second is that on 17 March 2025, prior to the commencement of the site inspection for these proceedings, the Court attended Tocal Hall to hear a number of lay submissions from objectors, with many others also in attendance. Ex 4 provided some of the documentary material behind the lay submissions heard directly by the Court. Finally, we indicate that on the first day in Court a further lay objecting submission was heard via AVL. Various points from lay submissions arise later in the judgement.

Application before the Court

36. The DA’s key constituent parts can be summarised as follows:

1. Extraction of up to a maximum of 1.1 Mtpa of quarry product material over 25 years from the site, including:

1. Quarrying and processing operations on the site from 7.00am to 6.00pm Monday to Saturday, with blasting restricted to 11.00am to 3.00pm Monday to Friday; and

2. Transportation of quarry product from the site by road and rail (involving an extension to the existing rail spur to assist with rail haul feasibility), with road transportation of up to 450,000 tpa on the primary haulage route.

2. Road haulage particulars to include:

1. Peak daily movements of 80 laden trucks (160 movements) consisting of:

1. 12 laden trucks per hour (24 movements), Monday to Friday between 7.00am and 3.00pm; and

2. 9 laden trucks per hour (18 movements), Monday to Friday between 3.00pm and 6.00pm;

2. No road haulage of quarry product on Saturday, Sunday and public holidays;

3. No road haulage between 24 December and 1 January, inclusive;

4. No trucks through Paterson Village before 6.45am, although BG committed to amending this to no trucks along the haul route before 7.00am during the proceedings (Tcpt, 27 March 2025, p 508(1)).

3. Various commitments in relation to quarry management practices, driver behaviours and in relation to ongoing community consultative arrangements and financial contributions.

37. BG states in its written and oral submissions that certain proposed road upgrades on the primary haulage route do not form part of the DA before the Court (but, as explained later, responsibility for such works are attended to by way of proposed conditions of consent).

38. BG indicated a commitment to surrendering the existing development consent for the quarry were the DA to be approved. As such activities at the quarry would be regulated under a single contemporary consent.

Assessment framework

State Significant Development

39. Under s 2.6 and Sch 1 of State Environmental Planning Policy (Planning Systems) 2021 (Planning Systems SEPP), the development is State significant development as it is for the purpose of an extractive industry that extracts more than 500,000 tonnes of extractive materials a year.

40. In accordance with s 4.5(a) of the EPA Act and s 2.7 of the Planning Systems SEPP, the IPC was the consent authority for the application as more than 50 unique submissions in the form of objections were made in respect of the development application.

41. Section 4.38 of the EPA Act sets out specified determination powers of a consent authority for State significant development. BG highlighted that s 4.38(1) provides that consent for State significant development may be granted with such modifications or on such conditions as the consent authority may determine. A point of tension in the proceedings was the application of this power, under s 4.38(1) vis-a-vis obligations to consider “the likely impacts of the development” under s 4.15(1) of the EPA Act.

Dungog Local Environmental Plan 2014

42. Dungog Local Environmental Plan 2014 (DLEP) applies to the site. Under DLEP, the site is zoned primarily RU1 – Primary Production and partially RE1 – Public Recreation. Extractive industries are permissible with development consent in the RU1 zone but prohibited in the RE1 zone. Activities proposed within the RE1 zone comprise surface water management and environmental monitoring (ACS par 257). Section 4.38(3) of the EPA Act provides that development consent for State significant development may be granted despite the development being partly prohibited by an environmental planning instrument. Accordingly, the development application before the Court is permissible with consent.

43. Other DLEP provisions are not relevant to our findings and require no attention here.

State Environmental Planning Policy (Resources and Energy) 2021

44. Section 2.17 of State Environmental Planning Policy (Resources and Energy) 2021 (Resources SEPP) requires:

Before determining an application for consent for development for the purposes of mining, petroleum production or extractive industry, 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 the uses that, in the opinion of the consent authority having regard to land use trends, are likely to be the preferred uses of land in the vicinity of the development, and

(iii)  any ways in which the development may be incompatible with any of those existing, approved or likely preferred uses, and

(b)  evaluate and compare the respective public benefits of the development and the land uses 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).

45. Section 2.18(2) of the Resources SEPP provides that:

Before determining an application for consent for State significant development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider any applicable provisions of the voluntary land acquisition and mitigation policy and, in particular—

(a) any applicable provisions of the policy for the mitigation or avoidance of noise or particulate matter impacts outside the land on which the development is to be carried out, and

(b) any applicable provisions of the policy relating to the developer making an offer to acquire land affected by those impacts.

46. Provisions of the Resources SEPP are addressed later in the judgement.

Development control plans

47. Pursuant to s 2.10 of the Planning Systems SEPP, development control plans do not apply to State significant development.

Issues in dispute

48. Each of the respondents prepared individual statements indicating contentions which they saw as warranting refusal of the application. There is some overlap amongst these contentions. In our view, the essential issues in dispute can be categorised into the following seven topics:

1. Road safety and traffic considerations;

2. Noise impact;

3. Social impact;

4. Strategic justification for the proposal;

5. Other benefits;

6. Feasibility of rail; and

7. Insufficient information.

49. The public interest is also raised. While arising in other contentions, this topic is dealt with when drawing conclusions relating to the balancing of the positive and adverse effects of the proposal.

Road safety and traffic considerations

Background

50. The key point of attention for us here relates to the “primary haulage route” as identified in Figure 1. The proposal would result in additional traffic along the primary haulage route, including through the residential settlements of Martins Creek, Paterson, Bolwarra Heights, Bolwarra and East Maitland. Approximately 13 km of the primary haulage route is located within the Dungog LGA and approximately 15 km is located within the Maitland LGA.

51. The predicted increased truck movements along the primary haulage route are as outlined at [36]. The majority of the quarry product hauled by road would use a truck and dog (trailer) combination, with semi‐trailers and rigid trucks also in use (Ex A Tab 04 p 6.108).

52. The application was accompanied by specialist material in support, including the following:

• Traffic Impact Assessment, SECA Solution (May 2021) (Ex A, Tab 4);

• Martin’s Creek Quarry – Existing Condition Road Safety Audit Report, October 2024, CCHD (Traffic joint expert report filed 14 February 2025 (Ex 10 Annexure B p 70ff);

• Martin’s Creek Quarry – Existing Condition Thematic Road Safety Audit Report – Heavy Vehicles, November 2024, CCHD (Ex 10 Annexure C p 154ff);

• Martins Creek Quarry Crash Assessment of Haulage Route, 2 December 2024, TTPP (Ex 10 Annexure D p 257ff); and

• Memorandum RE: Traffic Modelling, 28 January 2025, TTPP (Ex 10 Annexure E p 330ff).

53. BG nominates various measures aimed at addressing potential road safety related impacts, including certain nominated road works and intersection upgrades along the primary haulage route, certain financial contributions towards both capital works and maintenance to DSC and MCC and other factors addressed in consent conditions.

54. An understanding of the relationship between the proposed increased truck movements and background traffic volumes at various points along the haul route can be understood from traffic composition data in the Existing Condition Thematic Road Safety Audit Report – Heavy Vehicles (Thematic RSA).

Figure 4 - Varying traffic composition along the haul route (Source: Thematic RSA Ex 10 Annexure C p 164)

Contentions relating to this topic

55. Each respondent raised contentions relating to this topic. The contention of essential relevance is that the predicted increased truck movements would have an unacceptable impact on traffic and pedestrian safety along the haulage route. The key specific subtopics for attention are as follows:

• The four intended sites for road upgrade works – and in particular the resolution of detail;

• Residual traffic safety concerns (assuming achievement of the upgrade works); and

• Impact on the Melbourne St/New England Highway intersection in Maitland.

Expert Evidence

56. The expert evidence in relation to road safety, road upgrades and road performance was given by both the traffic engineering experts (K Hollyoak called by BG and C McLaren called by both MCC and DSC) and the civil engineering experts (P Kenny called by BG, D England called by MCC and C Maher called by DSC).

Four intended sites for road works

57. It is accepted by BG that “certain road upgrades along the road haulage route are reasonably necessary to address the potential impacts arising from the increase in road haulage” (ACS, par 37). DSC puts it more that the increased truck volumes could not operate safely without the proposed road works.

58. The works comprise:

1. A new intersection at the new quarry access road and Dungog Road (nominated as Site 1);

2. Upgrades to the approach to Gostwyck Bridge (Site 2);

3. Upgrades to the Gresford Road and Dungog Road intersection (Site 3); and

4. Upgrades to the King Street and Duke Street intersection in Paterson village (Site 4).

59. Both procedural and merits concerns were raised in relation to these proposed works.

Procedural considerations

60. Each of the sites fall within Dungog LGA and DSC raises two concerns in relation to procedural factors.

Owner’s consent

61. The first procedural concern relates to owner’s consent. DSC argues that the development application must be refused as landowner’s consent from DSC has not been provided for the lodging of the DA (mindful of cl 49 of the Environmental Planning and Assessment Regulation 2000). We note that Site 1 works involve bridging a railway line owned by Transport for NSW (TfNSW) and controlled by ARTC. There is no dispute in relation to these works as landowner’s consent has been provided for this (ACS par 39). As put by DSC, a development application relates to any land on which development particularised in the application is to take place (Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha) at [89]):

“The owner whose consent to the making of the development application is required is the owner of the land on which the development the subject of the development application is to be carried out: North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 at 476-477; [1996] HCA 20. This is “the land to which the development application relates” (cl 49(1) of the Regulation). The development application seeks consent to carry out particular development on particular land. The development application must contain “a description of the development to be carried out” and “the address, and formal particulars of title, of the land on which the development is to be carried out” (cl 1(1)(b) and (c) of Sch 1 of the Regulation). Having identified the development and the land on which the development is to be carried out, the development application must contain “evidence that the owner of the land on which the development is to be carried out consents to the application” (cl 1(1)(i) of Sch 1 of the Regulation).”

62. DSC submits that the development application documentation indicates that the “land on which the development to be carried out” does include the proposed road upgrade work sites. As put in DSC-CS (par 33) and referencing the Amended Development Application and Response to Submissions, prepared by BG’s consultant Umwelt (Ex A Tab 4 p iii):

“The “Amended Development Application and Response to Submissions” sets out the “Revised Project” the subject of the application. Its key features are identified to include:

upgrades to the Dungog Road and Gresford Road intersection; the King and Duke Street intersection (within the village of Paterson); and upgrades to the approach to the Gostwyck Bridge.”

63. As DSC is not the consent authority, the Court has no power under s 39(2) of the Land and Environment Court Act 1979 to step into the Council’s shoes and provide owner’s consent, according to DSC.

64. In response, BG indicates directly in closing submissions that the DA “does not seek development consent for road works within the DSC road reserve”. It is further put (ACS, par 56) that:

“However, the lawful condition making power pursuant to s 4.38 may extend to the requirement to carry out those works. That condition is within power in the Ulan sense, and is precisely what has been initially recommended by the Department⁴⁰, and now carried into the conditions proposed by the IPC⁴¹. This does not give the Applicant any right to carry out the work. As is noted above and expressed in the conditions (B44 for example) any works required by the conditions would be subject to an approval under the Roads Act, which would be by DSC with TfNSW’s concurrence under s 138(2) given the road is a “Main Road” (MR101) for the purposes of s 46 of the Roads Act and is therefore a classified road…”

65. The second procedural concern raised by DSC is that the impacts of these works must be assessed in accordance with s 4.15 of the EPA Act (regardless of whether or not these works form part of a future application under s 138 of the Roads Act 1993), and that such impacts cannot be adequately assessed under s 4.15 due to the lack of detail and uncertainty about the proposed road upgrades.

Findings

66. First, we refer to owner’s consent. To the extent that the land to which the development application “relates” includes Council holdings (mindful of Ex A Tab 4 p iii and Al Maha at [89]), we do not find the lack of owner’s consent fatal in this instance. As referenced by BG, the findings of Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20; [2008] NSWLEC 185 (Ulan), have some relevance. In Ulan, the Chief Judge refers to powers to grant approval under former s 79J of the EPA Act which we accept is relevantly identical in itself to now s 4.38. We provide a long quote from this judgement given its later pertinence:

“74 … The power to impose conditions on an approval under Part 3A of the Act is not confined in the manner specified for conditions of development consent under Part 4 of the Act (see sections 80 and 80A of the Act). The power to grant approval under s 75J is expressly stated to be able to be exercised, first, “with such modifications of the project” and, secondly, “on such conditions”, as the Minister may determine in both cases.

75 Clearly, the power to impose conditions on an approval under Part 3A is wide. There is no warrant to read that power down by imposing the limitation argued by Ulan that parameters of any adjustment to the Project to meet any outcome or objective specified, must also be specified.

76 In these circumstances, the failure of Condition 29 to specify the permissible parameters for adjustment of the scale of mining operations does not cause the Condition to be outside the class of conditions which s 75J permits.

77 Moreover, Ulan’s argument that without such specification of parameters, there is legally unacceptable uncertainty, is not established. Questions of degree are always involved in determining whether a condition is sufficiently uncertain so as to be outside power: Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 629 [117].

78 Retention of practical flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme: see Scott v Wollongong City Council (1992) 75 LGRA 112 at 118; Transport Action Group Against Motorways v Roads and Traffic Authority (1999) 46 NSWLR 598 at 629 [117] - 630 [122]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at 292 [55] and Hurstville City Council v Renaldo Plus 3 Pty Limited [2006] NSWCA 248 (8 September 2006) at [89].

79 In this case, leaving a choice of the means by which the outcome or objective of ensuring sufficient water for all stages of the project is to be met, to the proponent, including the nature and extent of adjustments that should be made, cannot be said to be outside the statutory scheme of Part 3A of the Act and in particular the power under s 75J to grant approval subject to conditions.”

67. The provisions of s 4.38(1) of the EPA Act are relevantly facultative and are intended to provide for a certain level of “practical flexibility” in relation to the evaluation of State significant development. In turn, even if it were not the case with the DA itself at present (ie BG’s statement in Court indicating the DA does not seek development consent for road works within the DSC road reserve does not change the “land to which the development application relates”), it is reasonable to assume there is the availability of power within s 4.38(1)(a) to grant approval “with such modifications of the proposed development” as necessary to bring about a DA in accordance with BG’s Court submissions. That is, one which excludes the proposed road works, but requires the works to be undertaken as conditions of consent under s 4.17(1)(f) of the EPA Act.

68. In relation to the second procedural point, generally, we accept the submissions of DSC that there is a requirement to consider the likely impacts of these proposed roadworks in accordance with s 4.15(1) of the EPA Act. The question as to whether these impacts cannot be adequately assessed under s 4.15(1) due to the lack of detail and uncertainty about the proposed road upgrades will be considered when we turn to the merits questions on this topic. But noteworthy and in accord with the submission of DSC we do accept there has been a significant change in relation to the powers relating to the determination of DAs for State significant development, or its equivalent, when the Ulan statutory setting is compared to the present. Section 4.40 of the EPA Act now provides that s 4.15 applies to the determination of DAs for state significant development. This is not representative of the Ulan setting.

Merits considerations

69. BG has prepared conceptual drawings for the proposed road upgrades to assist assessment. These conceptual drawings have been designed to accommodate BG’s proposed annual road haulage of 450,000 tonnes and to form a basis for the preparation and approval of the final detailed designs. BG also states that the impacts of the proposed road upgrades have been assessed, relevantly, in the documentation outlined at [52] and the following additional material:

• In respect to Gostwyck Bridge: the Gostwyck Bridge Report (Ex A Vol 3 Tab 4(m))

• In respect to traffic queuing: in the traffic engineers' joint expert report (Ex 10 including Annexure I);

• In respect of parking implications in Paterson for the works at King and Duke Street: also in the traffic engineers' joint expert report;

• Road safety impacts of the proposed road upgrades: in the Safe Systems Assessment annexed to the traffic engineers' joint expert report (Ex 10 Annexure J); and

• Civil engineering requirements for the works: in the civil engineers' joint expert report (Ex 8, which includes reference to the particular concept drawings for Sites 1-3).

70. In regard to the information necessary for an assessment under s 4.15(1) of the EPA Act, BG considers that mindful of Ulan, the Court only needs to understand the "outer boundaries" of the potential scope of impacts in order to carry out the required assessment (Tcpt, 27 March 2025, p 479(24)).

71. DSC argues that in respect of Sites 1 to 3, the Court does not even understand the impact outer boundaries.

72. There was evidence of a consensus that none of the conceptual designs for Sites 1 to 3 comply with the minimum sight stopping distances under relevant Austroads standards. There seemed to also be a consensus among the civil engineering and traffic experts that any final design of Sites 1 to 3 would require some combination of the following:

1. A design concession from TfNSW; and/or

2. Lowering of the applicable speed limits in the relevant environs of the proposed intersection and road works by TfNSW; and/or

3. If TfNSW refuses to provide either of the above approvals, then the works will need to change from the conceptual design submitted by BG to another configuration satisfactory to TfNSW.

73. DSC argues, and no documentation provided to us indicated other than, that TfNSW has not at this stage agreed to the concept road works, including associated concessions, at any of the sites.

74. We now turn to the expert evidence. First in relation to Sites 1 to 3, then to the Paterson Village site (Site 4).

Site 1 - New Quarry Access Road and Dungog Road

75. Once haulage rates exceed the currently approved tonnages, a new access road to the quarry and associated intersection with Dungog Road is agreed as required. Beyond the joint report, potential issues and impacts associated with a design for Site 1 were considered when the civil engineering experts were subject to examination by the parties.

76. Mr Kenny indicated:

“… site 1, we’re talking about, I think, the major - the major area of requirement for concession is going to be the stopping site distance. If that concession is not agreed to, then we’ll have to come up with an alternative design. That alternative design, as initial advice I’ve had is, may involve a fill of three metres, which is going to have constructability issues. It may well have some issues in terms of needing retaining walls, so that we don’t impinge on people’s property. It may have some impact on the public utilities. And also, with detailed design, that’s when you usually do your detailed work on your drainage. But I don’t see - I don’t see drainage as being a particularly tough issue here, because it’s actually located at the top of a crest…” (Tcpt, 21 March 2025, pp 284(50)-285(5))

77. Mr Maher went further than Mr Kenny about the potential impacts at Site 1:

“WITNESS MAHER: Certainly. I think site 1, given we don’t have a compliant site distance within that design currently, we don’t have a site distance that complies with the 100 kilometre hour speed zone heading towards Paterson, and the preferred option is a site distance of 60 kilometres an hour, and we haven’t got the defined, or I guess, an accurate definition of what work would be required to achieve those sight distances. I don’t believe the concept is anywhere near complete. It hasn’t assessed, in form, the impact of complying with those required sight distances. I think for the concept to be complete, we’ve got three options that are put forward, none of which comply with the sight distance requirements at that location.

We haven’t been shown in - in potentially a fourth option what is required to - to comply with sight distance. I think it would only be fair to consider the first three if we had four as well. We can’t make a decision that perhaps, as Mr Kenny says, that we have three metres of [fill] or we need a retaining wall without that design put - being put forward...

...

WITNESS MAHER: --I think then that leads us to the position of not being sure what the scope of works is and the potential impact on properties, private properties where we don’t have consent for those works. The need for retaining walls. Retaining walls lead to the need for barrier systems, safety barrier systems, road safety barrier systems as well. …Relocation of public utilities, yes.” (Tcpt, 21 March 2025, p 285(23)-(48))

78. In cross examination, Mr Kenny agreed there was a possibility of additional impacts from a compliant design that we are not yet aware of (Tcpt, 21 March 2025, p 286(16)). These potential, and essentially, unassessed impacts could affect the private properties immediately opposite the proposed access.

79. When queried in relation to his finding in relation to the safety of the other two concept designs (apart from concept design 1 which he did agree was unsafe), Mr Kenny referred to professional experience and data:

“WITNESS KENNY: The question of unsafe is another issue. If the road authority says they have to be designed to 90 k design speed, that’s what it should be. The question of safe versus unsafe, roads are - this is a philosophical argument; just allow me a minute - some roads are safer than other roads, but the concept that a road is safe at that speed and unsafe with this is really a bit simplistic, because no matter how well you design the road, someone will have a crash on it. Okay? So the concept, is it safer designed at 80? In my opinion, it is safe designed at 80, because there’s already factors of safety worked into it. Is it a safer design, is it a better design at 90? Yes.

EL-HAGE: You, in your answer, made reference to a philosophical debate or the like. Is that because your answer is - the one that you just gave - is not premised on some objective criteria but is dependent upon your own subjective views?

WITNESS KENNY: Obviously it’s based on my experience, which includes subjective and objective views. As a civil engineer, I’m required - my - my profession requires data. In this case, if you said to me, how many extra crashes are you going to get for an 80 k design speed versus a 90 k design speed, I don’t know anybody who could answer that question. So you’re talking about objective data?” (Tcpt, 21 March 2025, p 288(17)-(37))

80. However, in respect to the question of access to “data” to assist in making professional determinations in relation to the safety of treatments, Mr Kenny confirmed that neither himself nor CCHD has done any speed study, either in relation to Site 1 or Site 3. Under cross examination from DSC he agreed such data would have been “very helpful”. Mr Maher believed that in the absence of such data he did not believe an assessment of road safety could be made at these locations:

“I think in terms of data and objectivity, in the absence of those 85th percentile traffic counts and speeds, I don’t believe we could assess road safety at that location or impact at that location.” (Tcpt, 21 March 2025, p 289(28)-(30))

Site 2 - Gostwyck Bridge

81. Gostwyck Bridge is single lane and operates one way/each way, only, with give way control. It is under the care and control of TfNSW. The current posted speed limit at this location is 80km/hr. The proposed concept treatment of the eastern and western approaches are based upon a 40km/hr speed limit. Mr Maher indicated a compliant design would require revisiting the road alignment, vertical curve lengths, and cross sections, with associated potential to increase the impacts of the proposed road works.

82. BG submits that TfNSW has no issues with the proposed design for Gostwyck Bridge (ACS par 75). The speed limit reduction is required primarily as a result of load testing on the bridge as identified in the Gostwyck Bridge Report (Ex A Tab 4M p 29).

83. However, DSC disputes this (Dungog Council’s Written Submissions dated 28 March 2025 (DSC-CS) par 49), and notes that TfNSW has stated in its comments to the Department that:

“There has been no consideration of the traffic impacts at the bridge noting it operates as a one way with give way control. Assessment of the ongoing safe operations of this control point is required, including consideration on approaches in peak time and end of queue management.”

84. We note Mr Hollyoak also indicated that (Ex 10 par 46):

“… a compliant driver approach sight line to a stopped vehicle at the proposed GIVE WAY location needs to be confirmed by the applicant, as this was discussed and agreed in the joint civil/traffic conclave.”

Site 3 - Gresford Road and Dungog Road

85. The lack of certainty about the scope of works and associated impacts relating to this intersection are similar to Site 1 with issues regarding sight distances and design speeds. Site 3 has been designed to 80 kph in a 90 kph setting and is non-compliant with stopping sight distances under Austroads. The scope of works required to make the intersection compliant is not known.

86. The evidence of Mr Maher, which was not disputed by Mr Kenny, is that a compliant design could require works on private properties and/or construction of retaining walls (Tcpt, 21 March 2025, p 297(10)-(20)). Mr Kenny’s evidence was that the top of the crest could be addressed through additional cut, but that such works would be “quite disruptive” (Tcpt, 21 March 2025, p 298(35)).

87. We note that it was Mr Kenny and Mr Maher who were the principal experts who were interrogated on the matters of sites 1-3. The traffic experts also provided evidence. Generally, we note that Mr Hollyoak acknowledged the various non-compliances with Austroads intersection standards but referred to the evidence of Mr Kenny to suggest “relaxations do occur”. Mr McLaren disagreed, indicating that in his professional experience he had not “known TfNSW to permit a lower design speed limit to apply to both main road approaches to an existing public road intersection, as is sought by the applicant in this case” (Ex 10 par 4(c)).

Site 4 - King Street and Duke Street Paterson

88. The fourth and southernmost location where BG agrees there is an identified need for, and commitment to, significant roadworks is within the environs of Paterson village. The haulage route involves a right-angle turn within the village itself. If travelling south from the quarry, the right turn is located where King Street (an extension of Gresford Road) intersects with Duke Street (an extension of Maitland Road).

89. Again, a number of options were considered by the traffic and civil engineering experts during the proceedings. An important intent was to allow for safe separation between two trucks, and their associated trailers (or dogs), passing at the right angled turn in the centre of the township at the same time. Certain carriageway widenings would need to occur, with some instances where the carriageway would extend closer to property boundaries, including adjacent to a land along the northern side of King Street, which is the site of a popular café including a streetside outdoor seating area.

90. A significant implication of carriageway widenings in preferred configurations on traffic safety grounds (and mindful of land ownership restrictions in relation to previously intended off-street parking), would be the loss of 12 parking spaces, central within the village. Figure 5 indicates one of the concept layouts for works (Ex 10 Annexure KJH2). The concept plan indicates that replacement (perpendicular) parking, totalling it seems 11 spaces, would be provided further along King Street towards the east. It can also be seen that part of the works would be provision of medians to establish a pedestrian refuge configuration in Duke Street.

Figure 5 – One of the concept plans for proposed road works in Paterson (Source: Ex 10 Annexure KJH2)

91. Mr Maher was concerned principally in relation to loss of parking. A secondary concern related to pedestrian refuge implications:

“There’s also some works required to redirect pedestrians to that pedestrian refuge and relocation of a bus stop, quite a bit of line marking and signage to delineate those changes and to reinforce the change to the parking regime. My concern with the parking and the changes to the parking relates to the location of those proposed spaces and their usability and how the people entering Paterson who are unaware with the location of parking will - will find - a matter of wayfinding. How do they find that car parking? The parking isn’t provided near to the existing businesses in the village itself, it’s off to the right in King Street.

If we’re travelling from Maitland towards Paterson and we turn right into King Street, how do you access - how do we access those car parking spaces?

Someone travelling that direction would need to travel down to King Street and do what we did in the bus and turn around and come back to park, or alternatively, if they were aware in advance, they might come through Tucker Park which we also passed on the way in and come around the back and join into King Street and park in those car parking spaces.

So the question then to my mind then is what I would term utilisation. If we provide those 11 car parking spaces, if they can’t be utilised in reality, then we’re not actually providing those 11 spaces, so there’d be greater competition for spaces that are more easily accessed within Duke Street particularly, with people wanting to stop near to their desired point. So if they were looking to go to the post office or looking to go to the takeaway shop, if they can’t get there, they’re going to look for the next available car parking space.” (Tcpt, 21 March 2025, p 298(23)-(47))

92. Mr Kenny was also concerned about parking loss but highlighted what he saw as improved safety as a consequence of the pedestrian refuge and intersection roadworks. He also saw the potential for minor relocation and formalisation of the bus stopping areas as an improvement:

“…the southbound bus stop is being moved to south of the - to be moved south of a driveway. The - the northbound bus stop will actually be formalised. I think they’re both good ideas. You’ve got a pedestrian refuge as you approach King, the intersection of King and Duke. That’s a safety issue. I think those - those changes, those suggestions, make sense. The loss of car parking is, especially in a small village, is regrettable.

When we were in King Street on Monday, I noticed there were cars on both sides of the road. I was surprised how heavily utilised it was as a parking area, so - so certainly the locals know about it.

…- in general terms, I think it improves the safety of the village, and - and formalising the bus stops is a good idea, and doing some amendment to the curve outside the post office so as to make sure that the trucks can get around in both directions, I think that’s a positive as well. So, they’re the positives about it. That’s my comment.” (Tcpt, 21 March 2025, pp 303(45)-304(12))

93. DSC highlighted the fact that there was no parking survey evidence to assist in understanding the implications of what would be lost parking adjacent to shops in Paterson centre and the proposed replacement parking.

Finding

94. With respect to Sites 1-3, and the associated proposed roadworks, there seem to be three essential queries. The first is based on the notion that relevant, and quite localised, speed limits should be varied to allow for road works design not compliant with current speed limits. This speed limit reduction in the environs of these three sites would bring about a general road use inefficiency in these areas. It is entirely possible that this may be thought as warranted as a trade-off for the otherwise benefits of a State significant quarry. There was considerable attention to the function of TfNSW in such a decision in the evidence, but in any event, the balancing of such (competing) public interest factors might be reasonably thought to go beyond the ambit of TfNSW as a line agency of government. As a general principle, it seems not unreasonable to think that in some circumstances it could be quite appropriate to determine to proceed on that path (ie restricting speed limits) were the otherwise public benefit of, in this case the supply of quarry product, were to outweigh the relatively localised traffic inconvenience. A resolution of this query (ie the substance of the public benefit provided by the proposed quarry) relates to other factors in these proceedings.

95. The second query is more technical. It is whether it would be safe to adopt the preferred (currently non-compliant) concept schemes, generally, or whether construction of the road works would introduce new safety risks. It includes the question of whether in the particular settings of Sites 1-3, if in fact speed limit controls (ie signage and the like) were to indicate a regulatory requirement for reduced traffic speeds, a considerable degree of compliance by road users could be expected. Mindful of the Austroads standards, it is reasonable to assume a significant additional safety risk would arise as a consequence of the proposed works themselves (particularly associated with stopping site distance) without good levels of speed compliance by traffic.

96. In regard to this second query, we find that the DA was significantly deficient in contextual “data” gathering, in the form of localised speed surveys were not undertaken. To have done so would have assisted in gaining an appreciation of the actuality of localised traffic’s behavioural response to these particular settings. This would have assisted in the resolution of the technical question involved in the second query. We accept Mr Maher’s evidence that there is presently an incapacity to assess road safety of the concepts as proposed. As it stands, we see significant uncertainty about the safety of the concept of reducing traffic speeds to allow the construction of the non-compliant road works, required to otherwise allow safe passage of the increased haulage truck movements associated with the proposed tripling of current lawful road haulage volumes.

97. The third query relates to uncertainties associated with the impacts of the proposed road works. This query is more pronounced in the event that the concept designs are unacceptable on safety grounds and there is a need for a compliant (or near to compliant) design. There is a deficiency in understanding of the scope of works involved to assess impacts in such a scenario. To the extent that the experts estimated likely construction requirements, somewhat on the run, there seemed to be agreement that due to the scale of earthworks there was at least the possibility of additional impacts that the experts are not yet aware of. Our interpretation is that this potentially included impacts relating to private lands outside the road reservation, such as in relation to: existing accessway reconfiguration, the consequences of concentrated stormwater management associated with retaining walls or other unknown factors. To make it clear, with respect to Site 1, we can indicate that BG’s claims that the ecological implications of potential land clearing on the site have been satisfactorily addressed are accepted.

94. In relation to Paterson village, we note Mr Maher highlights the parking loss central to the village and sees the net result of the replacement parking as a local loss. While Mr Kenny sees the parking reconfiguration as “regrettable”, he argues that there is an overall safer outcome as a consequence of the proposed pedestrian refuge and treatment of the right-angled intersection of Duke and King Streets (widened carriageway to allow two trucks to pass). Mr Hollyoak noted some of the inadequacies of current parking spaces (and current bus stop locations) in Paterson (Ex 10 pars 135-143). The parking relocation from desirable to less desirable spatial locations is an obvious negative aspect of the proposal.

95. The proposed roadworks in Paterson village seemed to be concerned with easing the flow of traffic, and especially haulage trucks and dogs, through the village. We accept that the provision of the pedestrian refuge assists with pedestrian safety. However, it is not clear to us, from the evidence, that there is an overall safer outcome in Paterson Village were the proposal to be approved. Given that it involves a tripling of allowable quarry trucks from the site and doubling of trucks through the village overall. The implications of the proposal on Paterson are examined more closely when social impacts are considered.

Inter-relating ss 4.15(1) and 4.38(1) of the EPA Act

100. We conclude this section of the judgement with commentary in relation to how we have inter-related ss 4.15(1) and 4.38(1) of the EPA Act in coming to our findings here. We note what might be thought of as a tension, at least, evident between BG’s submissions on the application and implications of s 4.38(1) of the EPA Act and the submissions of other parties, at least, with respect on the application and implications of s 4.15(1) of the EPA Act.

101. Under Ulan, s 4.38(1)’s predecessor at the time and the then Part 3A provisions generally, are seen as providing “wide” powers in regard to the imposition of conditions on development consents for matters of State significance. The intent is to provide for “practical flexibility”, including “leaving a choice of the means by which (a wider) outcome or objective” might be met and for “leaving matters of detail for later determination”.

102. On the other hand, and mindful of Weal v Bathurst City Council & Anor (2000) 111 LGERA 181; [2000] NSWCA 88 (Weal), for example, we see a need to understand the scope of the road works sufficiently to assess potential relevant impacts of these works on the road network, the surrounding environment and the amenity of local residents (Weal at [80] in reference to s 4.15(1) of the EPA Act’s predecessor):

“The terms of s 90(1) were mandatory: the Council was obliged to take into consideration relevant matters from the catalogue of matters in s 90(1), and to weigh them up in determining the development application. It had to inform itself sufficiently to be able to take into consideration the matters of relevance to the determination of the development application. With particular reference to para (b) of s 90(1), it had to be aware not only of the impact and the likely harm but also of available protective or mitigating means: so the conditions to be included in the consent were an integral part of the consideration (Parramatta City Council v Hale (1982) 47 LGRA 319 at 338-9, 340,342; King v Great Lakes Shire Council (1986) 58 LGRA 336 at 384). Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration …”

103. When we turn back to Sites 1-3, and mindful of an opening position to see provisions as to be intended to be read in harmony, we would see it not to be generally unreasonable for there to be flexibility left open in regard to a final concept scheme with respect to each of the sites. The proviso is that there be a reasonable understanding of the scope of possible works and the significance of a decision in support with respect to such works. This involves a well-rounded outline of impacts and mitigation potentialities, albeit in concept form. Were a consent to then be granted (mindful of s 4.38(1) of the EPA Act), conditions could allow arrangements for a final decision to be taken at a later point of detailed scheme development.

104. However, as it stands, we do see a procedural problem in that we have a lack of understanding of the potential impacts of the proposal in respect to Sites 1-3. Certain of the concepts presented with the application may not raise relevant concerns on this front, but there is a lack of clarity of potential delivery of such concepts and the potential for a requirement for Austroads compliant (or near compliant) schemes the impacts of which are not well understood.

105. We acknowledge BG’s reference to proposed Condition B41 and 42 which establish a regime for the finalisation of design plans for each of the road upgrades having regard to s 138 of the Roads Act 1993, including in relation to the involvement of private lands, but this does not relieve us from the obligation to inform ourselves sufficiently to be able to take into consideration the matters of relevance to the determination of this DA.

Residual road safety concerns

106. More generally, both MCC and DSC contend that the DA should be refused because it would result in an unacceptable impact on the safety of road users and pedestrians along the primary haulage route as a result of the increase in truck movements, even after road improvement works at the four sites considered above.

107. The concerns include that the increased heavy vehicle movements will directly impact the ability for pedestrians to cross the primary haulage route safely. This includes school children and vulnerable members of the community that are less mobile. The locational focus includes formal and informal bus stops where sometimes buses are forced to remain partially within the travel lanes whilst passengers are picked up and set down. The Councils also considered that the proposed traffic safety management measures, including the proposed Driver’s Code of Conduct would be weak as they would be difficult to monitor and enforce, and would therefore not adequately mitigate these risks (Maitland City Council Outline of Closing Submissions (MCC-CS) dated 27 March 2025 par 163).

108. While the IPC primarily relied on the evidence of the Council’s traffic related experts in regard to road safety, it referred to the formal IPC Statement of Reasons (for its refusal decision), which connected up with the numerous submissions from local residents about the lived experience of living in or near the primary haulage route (IPC-CS par 92). In regard to road safety, the IPC found (Ex 2 Tab 43 p 1643-1644):

“Significant concern was raised by the community in submissions and at the public meeting regarding road and pedestrian safety. Key concerns including sharing the roads with heavy vehicles, safe access to bus stops, and crossing the haulage route in residential and commercial areas. While acknowledging the Department’s position in relation to accident data, the Commission does not have any certainty on how such a significant increase in heavy vehicle movements along the primary haul route would affect the risk profile.

The Commission is also of the view that residual and unacceptable risks to pedestrians would persist along the route, and in particular in and around Paterson. The predicted increase in heavy vehicle numbers would make it difficult and dangerous to cross the road to access other services, especially for the young and less mobile.”

109. BG believes conditions of consent which include various contributions towards road safety would satisfactorily address these pre-existing road safety factors, concerning which the Councils already have a responsibility. We return to the particulars of this argument in later findings.

Expert evidence

110. Mr Hollyoak and Mr McLaren gave evidence on this topic, referring particularly to the Existing Condition Road Safety Audit Report (RSA) and the Existing Condition Thematic Road Safety Audit Report – Heavy Vehicles (Thematic RSA), referenced at [52].

111. In terms of existing truck traffic and proportionate increases, the Thematic RSA identified that the existing daily number of heavy vehicles varied along the primary haulage route from 28 on Gostwyck Bridge to the north to 191 on Melbourne Street at the southern end (Ex 10 p 169). The proposal would generate up to 80 laden trucks a day (160 movements). Based on the Thematic RSA, the existing number of trucks through the village of Paterson is 87 each day (Ex 10 p 169). So the additional 80 trucks generated by the quarry represents just under a doubling of trucks travelling through Paterson village and almost four times the number of trucks at Gostwyck Bridge to the north. The proportionate increase becomes much lower as one approaches Maitland.

112. The experts agreed that there were a large number of identified high level risks identified in each of the RSAs and that corrected action recommendations were not documented in either, the need for which was a point of disagreement. Mr McLaren indicated as follows (Ex 10 par 5c):

"Of the sixty-five (65) identified risks along the Primary Haulage Route, all except one required corrective treatment. The breakdown of reported risk levels are as follows:

Extreme: Two (2),

High: Thirty-four (34),

Medium: Twenty-three (23),

Low: Five (5)."

113. Each of the RSAs provides a decision matrix taken from Austroads Part 6 referenced the “level of prioritisation”.

Figure 6 - Level of prioritisation based on risk rating (Source: Ex 10 folio 169).

114. Mr McLaren was critical of various details relating to these documents (Ex 10 pars 5 and 6), including the preparation process, which he suggested did not satisfactorily document the independence of the RSAs appropriately.

115. Mr McLaren saw the non-inclusion of corrective actions, at locations where high-level risks were identified, as a serious deficiency of the RSAs. He gave particular attention to bus stops where pedestrian activity would occasionally focus, both within 60km/hr built up areas and higher background speed rural areas:

“Then beyond [the four improvement sites] there are the bus stops, and of the bus stops, there’s a total of 36. 22 of those are formal, and 14 are informal. And again, if you dig through the - the audits, there are suggestions of risk ratings there that need to be looked at. Again, the need for recommendations, corrective treatments, I don’t know what they would be in relation to those areas where there would be risk in relation to bus stops, so I think that there is a need for Council and the applicant to actually sit down and look at those. And then the other - the other matters in relation to risk would be, as I understand it, reading through all of both audits, there’s a total of 52 high risk items within both the existing and thematic road safety audits, and there’s also 25 medium risk.” (Tcpt, 20 March 2025, p 219(22)-(31))

116. It was agreed that Austroads Guide to Road Safety Auditing 2020 (Section 10.6) indicated it was good practice to not only identify the risk but also that:

“…the audit team must provide a recommendation for all risks and hazards that are identified, and risk assessed, and include identification of an appropriate mitigation measure/s.”

117. Mr Hollyoak highlighted the guideline’s provision of recommendations to mitigate risk was “not a requirement, its good practice” (Tcpt, 20 March 2025, p 218(13)).

118. A reference in the Thematic RSA catching the attention of Mr McLaren was what he saw as a contradiction in content. On the one hand what may be “an increased risk of pedestrians being struck” was identified, while waiting or walking along narrow shoulders. There was then an aligned conclusion that this was “not expected to result in increased risk of a pedestrian crash over that risk that currently exists”. The relevant content is produced in full below” (Ex 10 Thematic RSA p 172):

“A school bus was observed picking up school children on Tocal Road in the 80km/h speed zone section between Maitland Vale Road and Lang Drive heading southbound towards Maitland. The bus slowed in the through lane stopped in the shoulder entirely out of the through lane. No flashing 40km/h school bus lights were in operation on the rear of the bus.

Traffic surveys show existing heavy truck movements being low at under 2% and when combined with proposed increased truck movements the total increases to about 5-6% in the areas where the informal bus stops occur. It was noted that truck speeds were typically to the posted speed limit in these areas.

There may be an increased risk of a pedestrian being struck at narrow shoulders waiting for a bus or walking along a road corridor to or from a bus stop. A bus may also be sideswiped if a bus stops where the shoulder is of insufficient width for a bus to be clear of through traffic. This issue maybe compounded where a bus stop is located within a higher speed zone of 80km/h or 100km/h and shoulder widths are too narrow for a bus to leave the through lane completely.

Marginal increase in truck traffic is not expected to result in increased risk of a pedestrian crash over that risk that currently exists.

It is noted that the proposed development proposes regular engagement with local bus companies to mitigate the risk at bus stop locations.”

119. Relatedly, Mr McLaren saw that where the proportion of truck numbers would significantly increase with the proposal then there was a need for some “acceleration” of the need for a direct mitigative response in regard to the proposal:

“WITNESS MCLAREN: … - that’s fine, but the 52 high and the 25 medium, I - I - I would expect that if - whatever proportion of those risks are located in areas where the truck numbers have significantly increased in terms of proportion with accelerating the need for such corrective measures, then I would expect that the applicant would be required to fund - well, it may not be fully, but certainly a high proportion of those costs, particularly for those 52 high and 25 medium risks, because they are risks that are current, and I’m assuming that they are within the MR101 regional road section, which is Pitnacree Road and north of that”

120. Mr Hollyoak noted that sites where the higher proportionate increased truck movements would occur aligned with the locations where the four road improvement projects were proposed. While acknowledging the high-risk points identified in the RSAs, Mr Hollyoak identified this as an existing problem caused in the Paterson area by “87 trucks already on that road”, a problem which, Mr Hollyoak suggested “Council should be addressing” (Tcpt, 20 March 2025, p 211(33)).

121. Mr Hollyoak indicated that:

“Council are using this as an excuse to try and seek the quarry to actually do all of these works, and it’s - to me, in my view, it’s an existing road safety audit. It’s got nothing to do with the trucks. This is an existing issue.”

122. And that in terms of risk matters to be addressed:

“…I think, 80 - 80 items here that have been raised. Do we [sic] have to address all of them?”

123. Mr Hollyoak did seem to agree that the increase in truck movements as a result of the proposed development would increase the safety risks along the haulage route, including in regard to pedestrian safety, albeit without any quantification of the increase in risk:

“COMMISSIONER: Just let me be clear on that. Are you saying, Mr Hollyoak, you think the works that are proposed [are] offsets, in a sense, [to] any increased risk associated with the extra trucks?

WITNESS HOLLYOAK: Well, the main - no, I don’t say that at all, I don’t think. What I’m saying is that there are increased risks caused by the additional trucks, but we’re talking about a safety audit which has identified existing problems, which will be there whether the trucks are there or not, and is it the responsibility of the quarry to pay for all of those improvements, and I think the answer is no.” (Tcpt, 20 March 2025, p 216(5)-(15)

124. Crash rate data has some relevance to this topic, but also the previous topic relating to the four roadworks site. TTPP (a consulting firm where Mr Hollyoak is a director) undertook a crash assessment involving a review of the crash history in the site and haul route environs. The assessment found that the majority of the road section crash rates along the primary haulage route were lower than the NSW average crash rates of the same road types, a very limited number of identified locations were identified as exceptions. A finding of the crash assessment was that a "review of the crash history does not highlight any specific locations that may suggest an inherent road safety issue" (Ex 10 Annexure D p 14). Mr McLaren noted that the crash data upon which the assessment was based was the period between 2019 and 2023 when quarry haulage levels were low.

Findings: residual road safety considerations

125. It is of course fair to observe that existing road safety issues are not the responsibility of BG, particularly given current road tonnages (Ex K). But it is an entirely different point to suggest that this premise (lack of applicant’s responsibility for various haul route settings with high safety risk) means it follows, as if by way of deductive reasoning, that allowing significant additional truck movements by BG, bringing known “increased risks”, are acceptable. While it will sometimes be more obvious in the sections of the haulage route where proportionate volume increases are higher (see Figure 4), introducing the proposed tripling of quarry truck movements directly increases safety risks beyond that which exists now.

126. A significant failing of the application is that there has been no evaluation of any particular incremental risk associated with the proposal (beyond sites 1-4) and what mitigation strategy is warranted. While it may not be a “requirement”, Austroads guidelines suggest “good practice” should attend to this.

127. That is not at all to say it is a matter of BG being responsible for “all of them” (ie all of the high and medium risk setting corrective actions) but, in our view, more a matter of sensitively and sensibly considering higher impact interventions relating more directly to the increased risks posed by the application, including what otherwise impacts may associate with such interventions. Mr McLaren pointing to the high number of at risk bus stop settings as pedestrian concentration points, a number of which we inspected during the site visit, would seem a good starting point.

128. BG argues that all road safety related issues are capable of being assessed and can be dealt with by way of consent conditions. It is further put that consent conditions can ensure that road haulage limits that exist under current consents would remain in place until finalisation of road upgrades are approved and undertaken. We note and appreciate the parties filing of a consolidated set of conditions on 11 April 2025 (the respondents indicated their conditions were to be understood as without prejudice). According to the applicant, BG’s suggested conditions could be adopted, or if this was not acceptable to the Court, the without prejudice (WP) conditions nominated by other parties were available for adoption. These WP conditions identify a suite of open-ended (or to be identified) further road upgrades, many of which are disagreed by BG; with in some instances the alternative to require payment of various Council contributions (ACS par 79-82). We note BG’s agreement to proposed condition A26 to pay an additional $180,000 “for bus stop work” (ACS par 81), which we had thought centred on Paterson village.

129. We are not satisfied that BG’s submission (that residual road safety concerns can be addressed via conditions including with respect to various contributions) releases us from an obligation to assess, in this case, traffic related safety impacts of the proposal under s 4.15(1) of the EPA Act. For example:

291. The bounds of the relevant area for local effects analysis is described as follows in the assessment of economic impact:

“The Lower Hunter region is located to the west of Newcastle and circles the regional Centre of Maitland. The SA3, includes Singleton and Cessnock, as well as towns like Wollombi in the southern end of the region and Chichester in the north.” (Ex A Tab 4P p 19)

292. As indicated earlier there were a substantial number of lay submissions expressing support for the proposal in regard to local economic benefits. There was also scepticism in relation to local benefits from both local residents and the respondent’s social planning experts. In relation to local businesspeople we note that a number raised concern in SIA consultations regarding impacts on livelihood (Ex A Tab 21 p 29).

293. Ms Kanaris argued that (Ex 15 par 165):

“The 22 jobs does not sufficiently outweigh the potential negative impacts that are related to potential loss of livelihoods for small businesses in Paterson and Bolwarra (cafés, bakeries, shops)”.

294. A concern was that despite extensive submissions from local residents concerned about business livelihood and loss of people to the local area as a consequence of the increased trucks and dogs, insufficient appraisal of associated negative effects had occurred.

295. We note that the SIA does include a section on “local business and livelihood”. There is information on tourism’s contribution to the Dungog economy (some $47 million) (Ex A App O p 325) and a representation of concerns raised by local community members and business owners of negative effects, for example (Ex A App O p 324):

“…I also believe that a further increase of truck traffic will have a great impact on local tourism. A lot of the money coming into this area is from people visiting to enjoy the peace and quiet and get away from the city traffic. (EIS submission 173913) The increased truck Traffic through Paterson directly affects not only my business

… The noise from the truck Traffic disturbs not only me but also my guests. I have on occasion had guests leave due to the truck noise, or have said they would not return for that reasonThe statement of economic effects does not seem to address adverse tourism or other localised adverse effects associated with risk from increased quarry trucks.”

296. We are aware that Professor Ryan saw no problems on that front (Ex 15 par 140):

“The examples of relevant TripAdvisor reviews included in this section of the SIA Report (pp.324-5) demonstrate guests’ positive experiences of their stay and of the area, citing aspects of its historical charm. While these reviews make mention of noise associated with trucks and trains in the early mornings as the only drawback of their stay, they also highlight the comfort of their stays. These cited reviews are all dated 2017, and it follows that the haulage activity proposed currently, being lower than the actual activity of 2017, would stand to create lower levels of this disturbance.”

Findings

297. The localised benefits of the proposal are less clear than the wider strategic benefits of the proposal. There seem to be at least four unanswered queries arising on that front.

298. First, is that the assumption in the calculation of LEA that 100% of the inputs to production are supplied from the region might be reasonably thought to be an ambition rather than something that will definitely be achieved over the project life and would be enforceable, for example, through consent conditions and the like. For example, we note the qualifying commentary (“where possible” and “where feasible”) above at [289].

299. Second, is that the question arises as to what proportion of local economic benefits would be delivered if, rather than the Martins Creek quarry, other quarries in the local area were to provide the supply (and associated direct and indirect effects). Relatedly, what proportion of benefits otherwise provided by local quarries would be lost as a consequence of approval the proposal. We have not been directed to information on this.

300. Third, is that we accept the evidence of Ms Kanaris, having considered Professor Ryan’s evidence and assessed the various lay submissions including from local business people, that there would be economic downsides with the tripling of quarry truck traffic along the haul route, especially in Dungog LGA and especially in Paterson. We could observe during our site visit the obvious potential effects of both loss of highly convenient parking in Paterson (to well used cafes and post office for example) and the fact of closer passing quarry trucks and dogs, especially the Paterson Country Café outdoor dining where a road widening occurs. An adverse economic and job creation effect can be expected related to both tourism (Monday to Friday but not necessarily limited to that period); and associated with general local commerce (which relates to sense of community and the like discussed above). There was also persuasive oral evidence from the owner of Paterson service station and café, on this front, where it seems local employment in this facility has grown to 13 staff during this much quieter period of quarry truck use, and is concerned that a number of local businesses would be seriously affected or not survive with increased quarry truck movement through the town (Ex 4 Tab 9). These considerations have not been interrogated or accounted for sufficiently in the LEA.

301. Fourth, and related to more localised effects, is that even if these benefits do accrue in the LEA’s larger defined area (eg including Singleton and Cessnock, then ranging to Wollombi in the south and to Chichester in the north), to what extent might such benefits be offset against the very localised adverse effects along the quarry truck haul route. The question of distributional equity has been raised in the contentions. It might be reasonably thought to apply not only to the question of strategic benefits but also localised benefits.

Rail feasibility

Context

302. Both MCC and DSC contended that there was inadequate evidence as to the infeasibility of rail as an alternative haulage method to the tripling of road haulage (which brings the most significant adverse impacts). Reference was made to s 2.22 of SEPP Resources and the Secretary’s Environmental Assessment Requirements (SEARs). Section 2.22 of SEPP Resources, concerned with “transport”, provides as follows:

(1)  Before granting consent for development for the purposes of mining or extractive industry that involves the transport of materials, the consent authority must consider whether or not the consent should be issued subject to conditions that do any one or more of the following—

(a)  require that some or all of the transport of materials in connection with the development is not to be by public road,

(b)  limit or preclude truck movements, in connection with the development, that occur on roads in residential areas or on roads near to schools,

(c)  require the preparation and implementation, in relation to the development, of a code of conduct relating to the transport of materials on public roads.

303. The SEARS again on the topic of traffic and transport, required the EIS to address the following (among other matters):

“… a detailed assessment of the existing railway siding facility at the site as an alternative transport option for delivering quarry products and avoiding potential impacts associated with road delivery.”

304. The question of feasibility was briefly addressed in BG’s Revised Project Submissions Report, where it was indicated that (Ex A Tab 8 p 285):

“Not proceeding with the Revised Project would not provide for a commercially viable extraction rate nor the extraction of a long term resource. Not proceeding with the (amended DA) is not considered a feasible alternative due to:

1. The extent of valuable resources remaining in the lease areas.

2. Lack of certainty over the rehabilitation requirements of the whole Project Area.

3. Lack of certainty on the Approved Operations, as demonstrated in community and interest group submissions on the Revised Project.

4. Uncertainty around ongoing supply of construction materials to the local, regional and greater Sydney regions.”

305. Later evidence on the topic prepared on behalf of BG is introduced below.

Evidence

306. The experts providing evidence on this topic were P Imrie, called by BG; and T Brooker called by the respondents. The joint expert report of Mr Imrie and Dr Brooker was marked Ex 7 and no points of disagreement were identified.

307. Three specialist reports referenced in the expert report were:

• Rail Logistics Options Report prepared by Plateway (Mr Imrie's firm) and dated 25 May 2021 (referenced in the joint expert report as "Rail Logistics Report");

• Rail Logistics Report prepared by Plateway and dated 22 June 2015; and

• A further analysis of rail transport options for the quarry undertaken by Plateway, under year 2024 economic conditions (Ex 7 par 2.8).

308. Various points of agreement between the experts were synthesised by BG and MCC in closing submissions (ACS par 243(d) and MCC-CS par 219). These included that (Ex 7 paragraph references introduce each quote):

“[2.68].   There is no clearly feasible local rail transport operation able to be established for the quarry in the short term …

…

[2.64].   The operation of multiple trains out of Martins Creek is possible only if the proposed siding upgrade goes ahead. Due to multiple constraints such as noise impacts, it is not possible to extend the daytime loading windows with the existing rail siding.

…

[3.77]. The Rail Logistics Report did consider the opportunity for local rail distribution at local hub sites. Alternative hub sites were considered in the investigation to the use of road transport. In the short to medium term, there were no feasible alternatives to road haulage identified.

[3.78]. However, in the longer term, economic and environmental metrics (see TfNSW Sustainability Policy in Annexure G) should encourage the use of rail transport to supply constructions to major transport projects. This will drive the uptake of increased rail volumes from Martins Creek Quarry, given the proposed upgrade to the facilities.

…

[2.18]. Daracon has grown its existing/likely client base using road transport. Implicitly, Daracon will need to find a new client base to effectively use rail transport.

[2.19]. There are some opportunities in the list of projects provided by Daracon in Annexure I which would allow the change in client base to occur.

…

[2.21]. An additional client base is most likely to be found in the Sydney market, in combination with major projects in the Hunter Valley. The Sydney markets will require an additional aggregate distribution hub at Glenlee or Chullora or potentially other locations.”

309. The cross examination of Mr Imrie sought to examine whether his analysis had sufficiently engaged with the question of feasibility or simply whether road haulage was more profitable than rail:

“TO: Now, none of your analyses, either in May 2021 or now, have evaluated feasibility in terms of whether it would produce a profit to the applicant or achieve a particular return to the applicant; do they?

WITNESS IMRIE: No. My assumption is that in a free market, to be efficient, your quarrying costs are going to be similar. So if you’re subject to competition, right, particularly, let’s say we run to Glenlee and I’m competing against a quarry in the Southern Highlands hauling by road to Glenlee. Right, to be successful I have to offer that product there at the same or lower price. And transport forms a significant portion of the cost of the delivered product.

TO: So it follows, doesn’t it, that your analyses don’t shed light on whether rail haulage, if used, may still be profitable, but comparatively less so than road; correct?

WITNESS IMRIE: Correct.”

(Tcpt, 25 March 2025, p 326(14)-(29))

Findings

310. We have indicated in earlier findings that the road haulage aspect of the proposal is central to the adverse impacts the projects bring about in relation to both public safety and social amenity. This does draw into attention the requirements of s 2.22(1) of SEPP Resources. That is whether we should require by condition “some or all of the transport of materials in connection with the development (to be not by) public road”.

311. The DA does indicate an intention to increase rail haulage. The indications are that the new longer siding would be constructed and operational in four years. The experts also indicate that conditions will improve in relation to the commerciality of rail haulage. However, in relation to the DA, there was little in the way of specific flow-on implications of the turning on of the new rail system, such as indications of the bringing down of impactful road haulage levels and to what extent (ie after construction of the rail siding and its noise treatments).

312. MCC and DSC submit that increased hard rock extraction levels should be limited to that which can be transported by rail, and that the feasibility of this has simply not been investigated. According to these parties, the focus of all the evidence has been on what is the most profitable of the two haulage options.

313. We found the Plateway evidence to examine, principally, that which was the most profitable out of road and rail; and that this was essentially based on low cost production and with relatively short time horizons in mind. The view seemed to be held, seemingly also by both experts providing evidence to the Court on this topic, that there was a market for hard rock and the competitive offering into it, in a free market, was the low cost producer. That is to say, if this quarry can supply the quarry product by road at one (relatively low) haul ($) rate to market, then if the rail haul rate was higher there was no place for it in the market – it would be “uncompetitive” (see for example Tcpt, 25 March 2025, p 326(18)-(35)).

314. This is a limited assessment of the question of rail “feasibility” on a number of grounds. Conceptually, it is unreasonable to assume low cost production is the only way to compete in the market. It is reasonable to understand there to be variations in costs for existing market participants today but there is participation from a number of suppliers. One line of reasoning behind this is different positions on acceptable rates of return on investment. But at a more basic level, adoption of “low cost” as a competitive strategy does not take account of other strategies to compete in a competitive market. Many working in the field of competition and associated strategy would be familiar with the work of Harvard University’s Professor Michael Porter, who described two “generic” strategies; one of which is low cost production. But value to a buyer can also be centred on a second strategy based on product “differentiation” factors according to Porter (see Michael Porter, Competitive Strategy (1980)). In this instance a point directly argued by BG is that the Martins Creek quarry product is differentiated from other hard rock supply on the basis of its quality. Geology expert evidence suggests the material is “preferential”, at least “in many cases” (see [265]). There is also no examination of the potential for improved supply reliability, as a product differentiation strategy, associated with rail, given the identified concerns with short supply of drivers in the IA research (Ex F p 939). The point we make is not that consideration of such factors might prove rail as feasible. Rather it is that the rail feasibility evidence has, for us, significant limitations in what it does cover.

315. But, relatedly, and more important for us on this feasibility question, is the evidence that even over the time horizon of this project, “the gap in costs between the road and rail transport options is now much closer than in either 2014 or 2021” (Ex 7 par 2.8) and that rail haulage can indeed be profitable even now under suitable conditions (Tcpt, 25 March 2025, p 327(26)-(40)). Instead of attention to a situation today where the quarry cannot now supply any volume by rail (Tcpt, 25 March 2025, p 327(12)-(13)), what would have assisted the Court here was further considered analysis of the make-up of an operating rail haul system at Martins Creek, and downstream logistics, considering some reasonable time horizon; appropriately discounted to present value. Interesting elements to factor in for us would include: naturally, the significant obvious capital upfront costs involved in the rail spur improvements, but also running truck haulage at the current lawful limits, and the holding costs of stockpiling excavated material for the rail spur construction in the eastern area of the site for the period until a rail haulage system was back on line (eg reference MCC-CS par 241).

316. In our consideration, the evidence supports the submissions of MCC and DSC that neither the DA material, nor the specialist work accompanying it, including the recent 2024 analysis of Mr Imrie, nor indeed the expert evidence to the Court, address the question of the feasibility of a proposition that rail haulage be employed instead of road haulage for some proportionate level of the annual haulage (say either at the currently approved level or otherwise). Further work on this question would have assisted us with respect to our need to give consideration to s 2.22(1) of SEPP Resources.

317. As a commercial imperative alone, it seems understandable that there be no rush to the move to rail haulage at scale. Truck haulage gives both lower cost and heightened flexibility to the supply of quarry product to the market. It is also easier to work with a pre-existing client base. But, in this case, it is clear such commercial imperatives would come at a cost to the community along the haul route. The setting is captured, in a sense, in evidence from the rail experts in response to a question on a suggested profitability focus in the Rail Logistics Report (Ex 7 par 2.27):

“Any quarry operator will focus on the most market competitive, commercially feasible, operation. This is subject to the constraints which the planning approval imposes”.

Insufficient information

318. Elsewhere in the body of the judgement, we have come to findings in relation to topics where we have found the application wanting of further information to assist its case. These are in relation to factors associated with at least: (1) traffic safety (in particular relating to intersection design and feasibility and traffic queuing), (2) social impact concerns (particularly in relation to vulnerable persons), (3) rail feasibility, and (4) localised economic effects.

319. We note BG’s arguments that conditions of consent (under s 4.38 of the EPA Act) and a prospective future role of the Secretary of the Department undertaking a vetting role, could satisfy the Court with respect to such matters. However, as explained in the various content sections of the judgement, in this instance, there is a concern about whether we can adequately meet the requirements for impact assessment under s 4.15(1) of the EPA Act, generally, without further pertinent information.

Balancing competing factors in evaluation of the development application

320. This State significant development proposal would bring about significant effects both negative and positive. In terms of this judgment, the setting arises where the task before the Court, in accordance with the findings of the Court of Appeal in Warkworth Mining Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [172] is to “balance the public interest in approving or disapproving the project”.

321. There is considerable supportive evidence for the proposal. We note the Department’s positive assessment report in that regard, also noting the further refinements of the proposal subsequently, attempting to reduce impacts. Expert evidence in support of the proposal is evaluated above. On the evidence, the most important public interest factor for approval of the proposal is that related to increased availability of quality hard rock into the construction sector, especially to serve the construction of major infrastructure including State and regional roadworks and other construction works that are significant to economic growth and of social importance. The extraction of the proposed 1.1 Mtpa of quarry product over 25 years from the site, is of a considerable scale and the grant of consent and flow on supply of hard rock would make a positive contribution at a strategic level. There are other positive effects of the proposal including in relation to improved noise outcomes in the environs of the quarry over time, localised economic effects, funding related to community programs and, although not particularly clear, improved prospects for increased use of rail haulage.

320. The evidence in relation to adverse impacts of the proposal is clear and strong. There are significant road safety concerns. The existing haul route has a series of identified traffic and pedestrian safety problems including a large number of high risk settings, now, as identified in the RSA and Thematic RSA. Associated risks would undoubtedly increase significantly with the tripling of quarry traffic (effecting a doubling of larger trucks through Paterson through the week). The proposed consent conditions do not provide a sufficiently clear path to resolution in our opinion. There is also considerable uncertainty in terms of general configuration of the four road improvement proposals (and TfNSW endorsement, as relevant) and importantly and even mindful of s 4.38(1) of the EPA Act, insufficient information to properly evaluate the impacts with respect to certain aspects of the three rural road improvement proposals. There is also insufficient detail in relation to impacts on the publicly important Melbourne St/New England Highway intersection in East Maitland. Finally on this topic, and while not determinative, we also note that despite all good intentions in regard to a future improved truck driver code of conduct, a sense of scepticism was reasonable in the circumstances. This acknowledges difficulties in managing quarry truck drivers in the past, even for this particular quarry, despite an existing driver code of conduct; and evidence of ongoing pressures on truck drivers indicated in lay submissions.

321. The evidence was also quite clear in regard to social impacts. For reasons indicated above, we preferred the evidence of the experts called by the respondents on this topic, generally. There would be significant adverse social impacts relating to road and pedestrian safety and in relation to the broader amenity along the haul route, particularly within Paterson. There is a pleasant amenity in Paterson village and its surrounds, which is supportive of social interaction relevant to the local sense of community. We accept the notion of the IPC that this place function of the main road through Paterson village, at least, would change as a consequence of tripling of quarry truck and dog traffic and result in social interaction and cohesion decreasing. Arguments by and in support of BG, to suggest that the historical use of the haul route by quarry trucks assisted a finding that amenity impacts were acceptable, were unconvincing. The case law is clear that past conduct which is unlawful should not advantage BG here. Moreover, the operating consent demonstrates an explicit finding, at the time of its determination, that this quarry would have only limited impacts on the more local road system. We also noted that the SIA directly found social amenity impacts related to truck noise as “high” for “residents along the proposed primary haul route” and for “visitors/users/residents of Paterson village” and “Paterson businesses”.

322. Persons particularly vulnerable to road and pedestrian safety or noise concerns would be particularly affected, such as older people, those with physical disabilities, families with young children, shift workers and those with anxiety associated with historical truck noise. There would be flow on effects on factors such as sense of wellbeing. Post approval intentions on the part of BG relating to considerably more community consultative arrangements and program funding; and preparation of a social impact management plan were unconvincing.

323. A cost benefit analysis for the proposal indicated positive economics both in wider strategic terms and in regard to a regional catchment. However, it was missing information on a number of fronts, including adverse effects on local commerce and tourism associated with the increased quarry truck movement; and to what extent these suggested benefits were irreplaceable or would be otherwise replaced from outputs from other quarries.

324. When we undertake the balancing out of the public interest in approving or disapproving the project, the public interest in disapproving the project is considerably more weighty. This is because of the extent of demonstrable negative impacts the project can be expected to bring in regard to road safety and social amenity along the quarry truck haul route, including the concomitant disbenefit at a community level, particularly in the Paterson village environs. That is to say, it is the extent and particulars of the quarry’s required haul route, rather than the operating quarry that are of key concern. On the evidence before us, the strategic and more localised benefits associated with increased supply of hard rock are significant, but not unlimited, and in all of the circumstances cannot match these adverse impacts.

Selected further statutory considerations

327. Mindful of s 2.22 of SEPP Resources concerned with transport (see [302]), there may be a path open to the Court to impose the kind of conditions suggested by MCC, to require construction of the rail spur extension and noise mitigation within two years (limiting road and rail haulage to current levels until then) and once completed raise the extraction limit to 1.1Mtpa (while retaining road haulage to the existing approved limit of 150,000 tpa. This conception does have some appeal to us. But we have two concerns which are determinative on that particular question, first is that we are still missing an understanding of the feasibility of a path whereby the current approval locks in something akin to current approved road haulage levels and requires construction of the rail spur (while efforts have been made, there are limits to MCCs capacities to draw conclusions on that question). Second is that BG has made clear that this is not its application. BG saw no unreasonable impacts of road haulage at the levels it sought approved. It is unknown whether these findings may bring about a reconsideration, given the experts’ suggestion on the future increased viability with respect to rail haulage, including to the Sydney market.

328. Section 2.17 of SEPP Resources is concerned with the compatibility of proposed mine and extractive industry with other land uses. There are certain requirements for consideration within it which we have considered in our evaluation but can record now. We are aware of the site’s history as an operating mine and extractive industry. This has been a particular consideration in our deliberations, given that there are often significant regulatory hurdles involved in creation of new mine sites. This point is well outlined in a specialist geological report accompanying the application (Ex A Tab 4B, p 50). We note that there is still potential for extraction of the resource given the evidence of increasing commerciality of rail haulage into the future, including into the Sydney market.

329. We have also considered approved land uses in the vicinity of the development. What has become a determinative matter in this case, in relation to public benefits and disbenefits is the road haulage aspect of the proposal. There are associated impacts concerned with public safety and social amenity. In terms of the question of preferred land uses and inter-compatibility, when we balance things up, it is preferable that these land uses not be impacted upon to the extent which would occur were the proposal to be approved.

Conclusion

330. In all of the circumstances, the balancing of public interests in relation to approval or refusal of this proposal indicates to us that the proposal should be refused.

331. We also note that the proposal is also lacking in certain information reasonably required to undertake an evaluation of the impacts of the proposal under s 4.15(1) of the EPA Act, including certain matters outlined at [318]. BG has not met the persuasive burden to make its case in relation to these matters.

Orders

332. The Court makes the following orders:

1. The appeal is dismissed.

2. State significant development application SSD 6612 for the Martins Creek Quarry Project is refused.

3. The exhibits are returned with the exception of Exhibits A, B, C, D, 6, 17 and 21 which are retained.

P Walsh & M Young

Commissioner & Acting Commissioner of the Court

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Amendments

28 July 2025 - Amended a typographical error.

Decision last updated: 28 July 2025