Champions Quarry Pty Limited v Lismore City Council - [2011] NSWLEC 1124

Land and Environment Court

New South Wales

Medium Neutral Citation: Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124
Hearing dates: 25 â€“ 27 October 2010; 27 & 28 January; 2, 3, 4, 5, 7, 8, 9, 10 and 11 February; 28, 29, 30 & 31 March; 7 and 19 April 2011
Decision date: 12 May 2011
Jurisdiction: Class 1
Before: Moore SC, Sullivan AC
Decision:
1. The application for an order for costs pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 for the February 2011 amendments to the development application is refused as these amendments are minor;
2.   The appeal is dismissed;
3.   Development Application 2008/233 for the expansion of Champions Quarry at Wyrallah Road, Tucki Tucki, is determined by the refusal of development consent; and
4.   The exhibits, other than Exhibit 1, are returned.

Catchwords: Proposed quarry expansion; role of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; acoustic impacts; visual impacts; whether any public benefit of the proposed quarry is sufficient to outweigh its adverse impacts; is a s 97B(2) costs order required for the final, amended proposal.
Legislation Cited: Environmental Planning and Assessment Act 1979
Lismore Local Environmental Plan 2000
Lismore Development Control Plan 2007
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007
Planning Appeals Legislation Amendment Act 2010
Cases Cited: Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207
Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373
Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333
Stockland Developments v Wollongong Council and others [2004] NSWLEC 470
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Cachia v Manly Council (No 2) [2009] NSWLEC 1107
Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260
Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45
Category: Principal judgment
Parties: Champions Quarry Pty Limited (Applicant)
Lismore City Council (Respondent)
Representation: Mr T Robertson SC (Applicant)
Ms S Duggan SC (Respondent)
Burrell Solicitors (Applicant)
Sparke Helmore (Respondent)

File Number(s): 10069 of 2010

Precis of the decision (this precis does not form part of the decision)

The reconstruction of the bund adjacent to the Woolley residence is unacceptable on acoustic impact grounds. A reconstructed bund adjacent to the Woolley residence is unacceptable on visual impact grounds. Both these grounds separately are sufficient to reject this structure. Rejection of this structure would require rejection of the proposed quarry in its entirety. There are other acoustic impacts of construction activities that would require rejection of the proposed quarry in its entirety. There are further, lesser impacts that would not require rejection of the proposed quarry in its entirety but which, when accumulated with other impacts, would all collectively require rejection of the proposed quarry in its entirety. There are insufficient public benefits to outweigh the adverse impacts and thus the quarry expansion is rejected. No costs order pursuant to s 97B of the Environmental Planning and Assessment Act 1979 is warranted, as the most recent amendments to the development application should be regarded as minor.

Judgment

INDEX

Topic Paragraph
Introduction to Champions Quarry 1
The scope and outcome of the earlier proceedings 8
The nature and history of the final proposal 13
The parallel Part 3A application to the Minister 37
The unfolding of the proceedings
Introduction 40
The first phase of the hearings 46
The second phase of the hearings 61
The third phase of the hearings 64
The fourth phase of the hearings 75
The fifth phase of the hearings 94
Closing submissions 98
The relevant planning framework
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 â€“ introduction and cl 2 â€“ Aims of the SEPP 99
Cl 5 of the Mining SEPP 103
Cl 8 of the Mining SEPP 106
The role of the Lismore Local Environment Plan 2000 112
The Lismore Development Control Plan 2007 113
Cl 12 of the Mining SEPP 118
Other clauses of the Mining SEPP 142
The issues 144
The amber light approach 147
Consideration of the issues
Visual impact
Introduction 152
The longer view from the north-east 153
The Wadsworth residence 155
The Woolley residence 171
The White residence 181
The view from Tuckurimba Road residences 191
The view from Wyrallah Road in the vicinity of the Wadsworth residence 193
The acoustic acceptability of the proposal
Introduction 199
Construction noise 202
Initial basis for assessment â€“ the applicantâ€™s case at its highest 211
The Woolley bund 222
Other construction noise impacts 228
Operational noise 238
Adjustment of bund heights and moveable barriers 248
Importation of material for the push up and over bund 258
Final conclusion on acoustic impacts 260
Quarry operations in the southern extraction area
Introduction 267
The acceptability of the push up and over bund 269
The geotechnical adequacy of the push up and over bund 290
The question of the public benefit [cl 12(b) of the Mining SEPP] 297
Ameliorative measures [cl 12(c) of the Mining SEPP] 347
Consideration of cl 14 of the Mining SEPP â€“ greenhouse gasses etc 366
Consideration of cl 15 of the Mining SEPP â€“ resource recovery 373
Consideration of cl 16 of the Mining SEPP â€“ transport 376
Consideration of cl 17 of the Mining SEPP â€“ rehabilitation 378
Conclusion â€“ balancing unacceptable impacts against the Mining SEPP 381
Other matters
Aboriginal cultural heritage issues 382
Air quality issues 397
Ecological issues 400
Inadequate information 431
Roads and traffic issues 435
Water issues 442
Costs pursuant to s 97B - Are the push up and over bund changes minor amendments? 447
Summary of conclusions 461
Orders 489

Introduction to Champions Quarry

In Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207, an earlier case concerning the quarry lands that are the subject of these proceedings, the setting and general nature of the present quarry operations were described in the following terms:

The rolling hills and the small valleys of the coastal hinterland to the south-east of Lismore host many differing activities of residents and businesses of the region. Amongst them, in that rural and rural residential landscape, is located a small sandstone quarry known as Champions Quarry. The quarrying activities are extracting ripped and broken sandstone from a pit that faces, generally, north-east from the bottom half of the southern slope of one of these valleys.

The total land that encompasses the quarry lands (the site) of the proposed expanded quarrying operations is ~ 188 ha. In general terms, it comprises the bulk of a gently sloping bowl-shaped valley that has three watercourses that drain in a north-east direction until leaving the site where, after meandering in a number of other directions through other landholdings not associated with this quarrying enterprise, they flow through a drainage system (one that has allowed former wetlands, known as the Tuckean Swamp, to be used for agricultural purposes) prior to discharge via that generally dry (but now still floodplain) to the nearby Richmond River. A map from the Updated Environmental Impact Statement showing the general location and shape of the quarry lands is reproduced below:

The site is generally cleared but has two significant pockets of remnant rainforest vegetation located in central-western and south-western re-entrants running east from the north/south ridge line upon which Wyrallah Road is located. Wyrallah Road is a regionally significant road that carries modestly heavy truck and freight traffic (as discussed later in this decision).

In the immediate vicinity of this valley, there are a number of residences that are located on allotments of modest size but sufficient to support some rural activities. The relevant zoning permits the erection of residences when these are associated with the carrying out of rural activities. This is a classification that is to be distinguished from more conventional rural residential style of development on an ordinary large allotment basis.

Within the immediate vicinity, there are residences to the north, east, southwest and west of the site. These residences are those that require our examination to assess what impacts, if any, the various elements of the proposed expanded quarry operation might have at those locations. As will be seen later, that assessment will necessitate consideration of possible visual and acoustic impacts at the closest residences in each of those directions.

There is, also, within the boundaries of the site, a residence occupied by Mr Matthew Champion, the son of Mr Jeffrey Champion. Mr Jeffrey Champion is the guiding and controlling mind of the applicant (all subsequent references in this decision to Mr Champion are to Mr Jeffrey Champion unless otherwise expressly nominated to the contrary). As this residence is classified as an associated residence, there is no need to consider any impacts on it.

This associated residence is located to the east of the central extraction area, described below, and it and a number of other residences (considered in our assessment of impacts) are accessed by Hazelmount Lane, a generally unsealed rural laneway that is, in turn, accessed by Mathieson Lane, an also unsealed rural laneway, with a junction with Wyrallah Road approximately 500 m to the north of the entrance to the quarry.

The scope and outcome of the earlier proceedings

In the Reavill Farm proceedings noted above, an appeal concerning an application made to Lismore City Council (the council) was dealt with to regularise an earthen bund and associated earthen mounds that had been constructed, without appropriate development consent, along part of the eastern edge of the site. This bund is in close proximity to the boundary between the site and a property upon which the Woolley family reside in their dwelling.

The Reavill Farm proceedings dealt with an application, pursuant to s 96(2) of the Environmental Planning and Assessment Act 1979 (the Planning Act), to modify the existing development consent that operates for the presently more modestly sized quarry - compared to the present proposal - that operates in an area to be designated as the central extraction area if the proposed quarry expansion is approved.

The Reavill Farm proceedings rejected, on jurisdictional grounds, the legitimisation of the bund in the vicinity of the Woolley residence (this bund, for convenience, being referred to throughout the remainder of this decision as the Woolley bund - in order to distinguish it from a wide range of other bunds proposed to be constructed as part of the quarry expansion proposal).

The Reavill Farm proceedings did not deal with (and did not need to deal with) any issues associated with the acceptability of any impacts that might arise from the Woolley bund as it was determined that the existing quarry consent, if modified by approval of the Woolley bund, would not be substantially the same development as that which had originally been approved. This finding meant that there was no jurisdiction in those proceedings to consider the merits of the Woolley bund.

The consequence of the Reavill Farm proceedings is that, although the Woolley bund is in existence as a matter of fact (and, indeed, is proposed to be reconstructed as part of the works for which consent is sought in those proceedings), in these proceedings we are obliged to treat the Woolley bund as not being present for the purposes of a number of relevant elements of our merit assessment. The full history of the evolution of the Woolley bund can be seen in the Reavill Farm decision and it is not necessary to reproduce that detail in this decision.

The nature and history of the final proposal

Essentially, the nature of the application in these proceedings seeks the expansion of the annual permitted output of the quarry from either 50,000 tonnes per annum of sandstone and sandstone derived products or 64,000 tonnes per annum of such products (a difference that is not material in these proceedings but arises from interpretation of the existing development consent) to an annual output of 200,000 tonnes per annum and an expanded quarry life to 20 years or so from the date of approval of an expansion application.

The expanded quarry production is intended to come from three extraction areas. As earlier noted, the present comparatively small-scale quarry will be expanded and is to be designated the central extraction area. When it has been exhausted, by excavation to a lower depth than the present quarry floor and with the recovery of more materials from the benches to the west, the area on the floor of the central extraction area will be used as a processing and stockpile facility. Material from the other two extraction areas, described below, will, at least in part, be trucked to the central extraction area pit floor for processing or stockpiling prior to being distributed to customers. As we understood it, some material from the other extraction areas may also be delivered direct to its end user.

It is intended that the upper slopes of the central extraction area will be revegetated and, as discussed later, we were shown an example of revegetation at the upper western slope of the present quarrying activities during the course of one of the site inspections.

The second phase of the quarrying activities involves extraction of material from the proposed southern extraction area. This phase of the quarry involves the excavation of virtually all of the central and eastern elements of the ridgeline that runs from Wyrallah Road, in a generally easterly direction, 100m or so to the south of the central extraction area.

It is proposed that extraction of material from the southern extraction area will commence at the western end, that is in the saddle of the ridgeline, by utilising what is described as a push up and over bund (described in detail later in the section on quarry operational matters). It involves, in addition to this bund, the construction of two additional bunds. One is to be a bund known as the stepped bund that will run down the northern face of this ridge. The other is to be a perimeter bund, around the top of the total proposed extraction area whilst extraction is continuing within the bund of this ridge as described later. This perimeter bund, agreed during the course of the proceedings to be modified so as to completely encircle the quarrying activities within the ridge (except for the area at the north western end where there is to be the push up and over bund). This is necessary for acoustic and visual shielding of the activities in this extraction area.

The push up and over bund was not originally specifically described in the operational methodology for the quarry. Its evolution, during the course of the proceedings, is a matter discussed in more detail later. However, in its final form, this bund is proposed to be constructed as the first phase of quarrying activities in the southern extraction area.

It is anticipated by the applicant's quarry management expert advisors that sufficient appropriate material for the construction of this bund will be available from the first two cutting levels in this portion of the southern extraction area.

The push up and over bund is proposed to operate in a fashion that has a gentle slope on its inner material extracting side, within the ridgeline in a significantly steeper slope as its outer face to the north. A D8R bulldozer is proposed to be used, at least until harder sandstone is encountered at what are anticipated to be lower levels within the ridge, to rip material and push it up the slope toward the top of the push up and over bund. The bulldozer is to stop short so that there is no safety risk to the operator of that equipment.

On the outside, shielded visually and acoustically by the stepped bund running down the face of the ridgeline, is proposed to be located a work pad where there will be an excavator and adjacent a loading space for trucks. The excavator, as we understand it, is intended to be what we would describe as a long neck excavator. It will be able to pull down material from the outer face of the push up and over bund if this becomes necessary.

There are two acoustically related matters that it is appropriate to note concerning this activity. The first is that the design of the push up and over bund (and its bulldozer operation behind it) is intended to ensure that there will be no acoustic impact caused by the pushing of material to the lip of the bund and its delivery over the top to the excavator waiting below. The second matter to be observed is that for operational safety reasons as well as acoustic protective reasons, the excavator on the outer, northern delivery pad will not operate whilst ever the bulldozer is pushing material up and over the bund.

It is then envisaged that extraction within the southern extraction area will continue behind the perimeter bund and cut down into the heart of the ridgeline, creating a quarry crater that is entirely contained within the bund of the ridgeline itself, thus using the external topography of the ridgeline for ongoing visual and acoustic shielding of surrounding residences. This resulting landform was described as being like a volcano crater in shape.

As the internal extraction of materials within the ridgeline progressively lowers the floor of the quarrying activity within the ridgeline, so too will the upper level of the push up and over bund and associated activities outside the crater be modified outside this bund.

As the floor of the inner quarry workings within the ridgeline progresses downward to the eventually planned lowest level of extraction, the push up and over bund will, itself, be progressively lowered. However, at a later stage of the activities of the southern extraction area, there comes a point that is described as "break out", where there will be direct access, behind the stepped bund, from the quarry floor out to the haul road from the southern extraction area to the central extraction area and onward to Wyrallah Road.

Eventually, when entirely worked out, all that will remain of the southern ridgeline will be a narrow residual element that, to continue the volcano analogy earlier used to describe the crater-like quarrying activities in this area, will result in a topographic feature not unlike an element of the caldera from an extinct volcano.

It is intended that this residual slope on the (then) northern face of the southern extraction area will be rehabilitated and vegetated as part of the rehabilitation and stabilisation. The southern side will remain the present escarpment of the existing ridge line.

The final proposed phase of the expanded quarry involves extraction of material from the north-facing slope of the valley on the northern side of the present access road to the central extraction area. This is to be known as the northern extraction area. Quarrying of the northern extraction area is not proposed to commence until some fifteen years after the commencement of the expanded quarrying activities.

At this point, it is appropriate to interpose a short description of the visual screening vegetation plantings that are proposed to be established as part of the initial construction processes at the beginning of proposed activities associated with an expanded quarry approval. A construction program, at the commencement of activities anticipated in the application that is the subject of these proceedings, would run for a period of approximately 105 days. That would involve the construction of the various preliminary bunds associated with the southern extraction area; and the construction of a low bund along a generally east-west running fence line that separates a property owned by Mr and Mrs White from the Champion property. The White residence is located slightly to the south of east of the central extraction area. The construction activities also involve reconstruction of the Woolley bund, the bund described earlier as being the subject of the Reavill Farm proceedings.

It is also proposed to construct two bunds, to run in an east-west direction, on the slope to the north of the present access road. This slope, forming the present surface of the proposed northern extraction area, is to have one of these east-west running bunds at approximately the mid point of the slope and the second located toward the foot of the slope. These two bunds would also follow the curve of the hill, coming gently, at their eastern ends, round the slope of the hill to the vicinity of the present access road.

The bund along the fence line between the Champion property and the White property (together with the two bunds across the face of the proposed northern extraction area) are to be planted, at the commencement of the quarry expansion, with trees that are expected to reach a height of approximately 20 m or so during the life of the quarry. For the trees on the two bunds on the proposed northern extraction area, the bund itself is intended to provided acoustic shielding and the plantings, that are expected to have reached their mature height prior to quarrying activities commencing in the northern extraction area, are necessary for the purposes of providing visual shielding to the Wadsworth residence, a residence to the north of the proposed northern extraction area on top of the escarpment to the valley and located adjacent to Wyrallah Road.

There is also proposed to be tree planting on the western side of the Woolley bund and additional plantings along the northern boundary of the site. As there is a local resident koala population, koala food trees are to be incorporated in these plantings as appropriate.

Finally, it is also appropriate to note that the two remnant rainforest areas earlier described briefly are to be protected and subject to restrictive covenant . In addition, rainforest vegetation reestablishment works are to be undertaken in locations agreed to by the ecologists as later discussed.

We now return to our description of the proposed northern extraction area. Quarrying here is intended to commence at the top of the slope in the vicinity of the present access road, behind a temporary shielding bund. As quarrying advances from this first work cell, both into the body of the hill and down the slope, the proposed acoustic and visual shielding provided by the upper of the two vegetated bunds that would have been constructed and planted some fifteen years earlier, will come into effect. Eventually when quarrying reaches this first bund on the northern slope, its trees will be removed and the bund itself quarried. By this time, however, the acoustic and visual protection proposed to be afforded by the second, somewhat down slope, bund in the northern extraction area will be able to be utilised.

At the completion of the life of all three extraction areas, the quarry will close and the un-rehabilitated portions of the central and northern extraction areas will be stabilised and vegetated. As we understood it, all of the trees that had been planted will remain at the conclusion of the life of the quarry other than those that had been planted along the upper of the two bunds in the northern extraction area.

It is intended, at the end of the life of the quarry, that what will be able to be observed compared to that which is presently on the site, will be not significantly different in its vegetated appearance, save for the additional trees. There will be obvious topographic differences, but these would only be discernable to a person who was aware that quarrying activities had been undertaken. To a person coming to the site for the first time and not having knowledge of quarrying activities having taken place, it is intended that all that would be observed would be a modestly heavily treed but otherwise rural landscape.

The parallel Part 3A application to the Minister

In addition to the application that had been made to the council that forms the foundation for these proceedings, the applicant has also made a separate application to the Minister for Planning under Pt 3A of the the Planning Act. This application is generally coincidental with the application in these proceedings, but is not entirely the same. Although we have not seen the detail of the application to the Minister, we understand (from discussions during the course of the site inspections) that one significant difference is that the entirety of the southern ridgeline, forming the southern extraction area, is proposed to be removed and that no caldera-like remnant ridge would remain. We were informed by Mr Robertson SC for the applicant (we have referred to Mr Robertson of counsel in this fashion throughout this decision to distinguish him from the applicant's quarry management expert of the same name - we have omitted repeating Ms Duggan's SC post-nominal but mean no disrespect by doing so), during final submissions, that the northern extraction area is not included in the Pt 3A application. However, at the time of writing, we are not aware of any evidence to support this submission. In any event, we do not consider this material to our determination of matters in issue in these proceedings.

At the time of the completion of the hearings and the reserving of our decision, no determination had been made by the Minister for Planning on the application that had been made pursuant to Pt 3A. As is noted, later, in the section dealing with Aboriginal cultural heritage matters, Mr Champion gave an undertaking on behalf of the applicant to provide documents to the Department of Planning acknowledging that further work on Aboriginal cultural heritage issues was proposed by the applicant.

It is also relevant to note that, at least for these proceedings, there has been a deal of interchangeability of documentation. Experts reports that have been prepared, on their face, for the application to the Minister pursuant to Pt 3A have been incorporated in the supporting material provided for our consideration in these proceedings. We make no complaint about that - to the contrary, to have insisted on separate reports to the extent that there might be modest differences between the proposals, would have required additional (and in our view unnecessary) expense for the applicant. We do not understand that there has been any material deficiency in the information necessary for our consideration as a consequence of the use of documents prepared in support of the Pt 3A application.

The unfolding of the proceedings

Introduction

The original proposed structure of the hearings, to be commenced in October 2010 with an extensive site view and on-site evidence at the quarry and a range of locations in its general vicinity coupled with a second, finalising phase in late November and early December, was not possible because of the emerging requirement to undertake further groundwater testing to see if the application, which had been significantly modified over the lengthy period of time since it had been lodged with the council in May 2008 , required yet more modification before the issues raised in these proceedings would be heard to finality and determined.

However, to endeavour to minimise the already extensive costs incurred by the parties in these proceedings, two issues that were put in contention by the council (and supported by a significant volume of material raised in the community objections to the proposed expansion of the quarry) were identified, during the extensive case management process that has been necessary to ensure that these proceedings, as able to be heard and determined (in a fashion that minimised delay even if delay was not able to be avoided in its entirety), prior to the matters that required finality of project design for their consideration.

The two issues were identified as issues separate from the proposed geographic limits of the quarrying area sought to be approved and thus could be the subject of hearings during at least part of the initial week at the end of October 2010 that had been reserved for this matter. Those issues concerned:

ecological matters relating to flora and fauna within the site; and
road safety, intersection upgrading and design and financial costs for initial roadworks and the level of contributions by the quarry for ongoing road maintenance of the local road network.

As a consequence, the first phase of the hearing comprised a one day view of the site and an inspection of portion of the local road network followed by two days of evidence at Ballina courthouse on the two issues noted above.

As a consequence of the way that first phase unfolded, a further timetable for hearing the matter was set. This timetable contained three elements. These were:

Identification of a date immediately prior to Christmas for the consideration by us of any further application to amend the proposal;
two days toward the end of January 2011 for the purposes of completion of the evidence and submissions relating to intersection reconstruction and financing and relating to contributions to ongoing road maintenance. These days were to be held in Sydney; and
a further eight days, in early February 2011, with additional site inspections of the quarry and in the locality. The site inspections and the subsequent hearing days, in Lismore courthouse, were set to cover the remaining matters in contention together with any matters arising from any amendment for which leave it might have been given in December 2010.

It subsequently became necessary to set aside a further four days for hearings in Sydney to finalise the expert evidence in a variety of disciplines. After the evidence had closed, a further two and a half days were necessary for closing submissions from counsel with our decision being reserved, finally, on 19 April.

Notes prepared by the council's solicitor of the evidence given informally during the course of the various site and other inspections were subsequently tendered and became part of the documentary evidence.

The first phase of the hearings

On the morning of the first day of the first phase of the hearings, we attended the site and, initially, heard evidence on the site (near the entrance to the site from Wyrallah Road) from residents who were concerned about local road safety issues arising from the increased heavy vehicle traffic that will necessarily arise should the proposed quarry expansion proceed. We then travelled from this location to the rear entrance to the quarry site, at its eastern edge - an entrance that is from the western end (and terminating point) of Hazelmount Lane.

During the course of our transit from the quarry to Hazelmount Lane, we observed:

a koala climbing a tree at in the immediate vicinity of the intersection of Mathieson Lane and Hazelmount Lane;
a second koala in a small three that had been planted by the company in the vegetation on top of the bund that was the subject of the Reavill Farm proceedings; and
a third koala in a tree located on one of the residential properties at the head of Hazelmount Lane.

At this location, we also heard evidence from a number of objectors, including some living in the immediate vicinity of the end of Hazelmount Lane, about their concerns of the impact of the proposed quarry on local fauna, particularly on the local koala population. In addition, Mr Griffiths, one of the residents in this immediate vicinity, raised concerns on behalf of his family about dust and safety issues of quarry traffic utilising Hazelmount Lane.

It is convenient, for the purposes of this decision, to deal with that matter immediately. As part of the council's without prejudice conditions of consent (conditions provided, as the council is required to do, for the purposes of consideration during the proceedings), the council proposed a condition that no quarry traffic should be permitted to use Hazelmount Lane for the purposes of operational access to the quarry. The company, through its legal representatives, indicated that it accepted this proposed condition. We are satisfied that the imposition of a condition prohibiting the use of Hazelmount Lane for the purposes of quarrying activities is an appropriate and sufficient response to those matters that relate to the quarry raised by Mr Griffiths concerning traffic in Hazelmount Lane.

To the extent that his concerns also related to agricultural activities undertaken on the non-quarry parts of the site (or other land in the vicinity owned by those who are also the controlling minds of the quarry), these are not matters that are capable of being considered by us in these proceedings.

Mr Champion (who also resides in Hazelmount Lane), gave evidence at this location concerning the roles performed by him (and persons associated with him) in the re-establishment of koala food trees in the vicinity. He also gave evidence concerning his attitude, generally, to the preservation of vegetation on the extensive land holdings owned by his commercial interests in the immediate vicinity. Limited evidence was also given at this location by a supporter of the proposal, Mr Kay, who was a former business associate of Mr Champion; had no current business interests with Mr Champion; but did not rule out further joint business interests with him.

After leaving the end of Hazelmount Lane, we proceeded to the site, on Hazelmount Lane, of a rehabilitated former small quarry that now accommodated a dwelling occupied by Mr Champion's son-in-law, Mr Nott. Mr Nott gave evidence in support of the quarry on the two issues being dealt with in this phase of the proceedings. Matters relating to quarry rehabilitation and the like, said to be exemplified by this location, were the subject of a further inspection during a later phase of the hearings and are described at the appropriate point later in this decision dealing with those rehabilitation issues.

Having concluded the informally given evidence described above, we returned to the quarry where we were shown:

the boundaries of the proposed new northern extraction zone;
the location of a proposed new large dam, to the north of this proposed extraction zone;
the existing quarry pit, including an explanation by the operations manager of the present quarry about how the present quarrying operations were undertaken;
an outline of the proposed first stage of the proposed quarry expansion into the north-western element in of the proposed new southern extraction zone and the method of operation of that quarrying activity involving the haulage of material from that proposed pit by internally operating quarry vehicles to the floor of the existing pit for loading on to trucks for dispatch to the relevant customer. This was the subject of more detailed discussion, during a subsequent phase of the proceedings, in dealing with the quarry management plan and operational issues for the quarry. These are discussed later in this judgement;
an inspection of the area on top of the rocky outcrops surrounded hill included within the southern elements of the proposed southern extraction zone and proposed to be removed as part of long-term quarrying operations. This element of the site inspection included informal evidence being given at this location by Dr Robertson, the expert ecologist giving evidence on behalf of the council, and Mr Elks, the expert giving evidence on behalf of the company concerning flora issues. The nature of this evidence and the issues to which it was addressed are discussed later in dealing with the ecological issues raised by the council;
an inspection, on a closer basis, of the extent of the area proposed to be the first extraction cells in the proposed southern extraction zone of the expanded quarry; and
walking into an area designated as Area 1, one of the areas of remnant high-quality rainforest vegetation proposed to be conserved and protected (by an instrument pursuant to s 88K of the Conveyancing Act 1919) as an outcome of an approval for an extended quarry.

After completing our inspections within the site, we then proceeded to travel along Wyrallah Road toward the hamlet of Wyrallah. During the course of the transit along Wyrallah Road to the first of the two intersections with respect to which there was controversy concerning both the nature and costs of the proposed reconstruction (as discussed later), we stopped at a number of informal bus stops used by local school buses for the setting down or picking up of school pupils.

Although, at the commencement of this phase of the proceedings, there was a dispute between the council and the company about the extent to which additional warning signposting might be required for any or all of these bus stops, as a consequence of the increase of heavy vehicle traffic that would be generated by the proposed quarry extension, the company subsequently agreed to accept a condition that would require it to meet the costs of such additional signposting - as a consequence removing this as an issue requiring our determination.

We then proceeded to park in the parking area of the children's playground at the intersection of Wyrallah Road and Wyrallah Ferry Road. This intersection and proposed future turns by quarry-related heavy vehicles from Wyrallah Road into or out of Wyrallah Ferry Road gave rise to a consideration of the necessity to upgrade this intersection.

During the course of the inspection of this intersection, informal evidence was heard from Mr Holyoake, roads and traffic expert on behalf of the council, and Mr Pilgrim, roads and traffic expert on behalf of the company. This intersection (and, particularly, issues of safety of children using the adjacent park) formed part of the objector evidence, described earlier, given at the entrance to the quarry site at the commencement of the site inspection.

During the course of the inspection of this intersection, we observed a conventional semitrailer, being what the experts describe it as a 19 m articulated vehicle, turning south from Wyrallah Ferry Road into Wyrallah Road. This vehicle, in order to be able to undertake this manoeuvre, was obliged to cut across the centre lines in both Wyrallah Ferry Road and Wyrallah Road and to cut the corner in an unlawful fashion. As discussed, in more detail, in the later section of this decision dealing with roads and traffic issues, it is not presently possible for such a manoeuvre, by a truck of this nature, to be undertaken lawfully.

We then proceeded along Wyrallah Ferry Road a distance of approximately a kilometre to the intersection of Wyrallah Ferry Road and Coraki Road. This intersection also requires to be upgraded to accommodate additional heavy vehicle traffic generated by the quarry. It is also incapable of lawful transits by 19 m articulated vehicles in a similar fashion to that described above for the intersection first inspected; and was the subject of a dispute between the council and the company about the proportion of the costs of upgrading the intersection to be met by the applicant.

At the conclusion of these intersection inspections, the first phase site inspection concluded.

The second phase of the hearings

The second phase of the hearings took place in Sydney and concerned road and related issues. The issues fell into two categories - these relating to:

the necessity for and appropriateness of an apportionment of the costs involved in upgrading the intersections of Wyrallah Ferry Road and Wyrallah Road and of Wyrallah Ferry Road and Coraki Road; and
the question of what was the appropriate formula to be applied for annual road maintenance contributions to be paid by the quarry to compensate for additional maintenance costs for use of the two haul road options over council maintained roads.

Given that we have concluded that the proposal should be refused on a number of individual grounds and, if we are wrong about the individual grounds, cumulatively in relation of those grounds, in our opinion, it is not necessary for us to consider further these two road related issues.

We have reached that conclusion because there is no submission that issues of this nature could give rise to or contribute to refusal of the proposal. These issues simply went to what should be the financial contribution, whether capital or maintenance based, of the quarry - it being the agreed position of the parties that some contribution was warranted in each of these categories and with the disagreement being confined quantum only.

The third phase of the hearings

At the commencement of the third phase of the hearing, we undertook further field inspections. These were generally confined to matters relating to Aboriginal cultural issues and to ground water issues. These inspections were not only on the quarry site but was also of the Tucki Bora Ring and a range of other features including sandstone overhangs and a scarred tree. The Tucki Bora Ring is located to the north of the site along Wyrallah Road.

At their commencement, we heard lay evidence at the quarry entrance from a supporter of the proposal.

During the course of these inspections we heard informal evidence from Mr Murray John Roberts, a knowledge holder from the Wijibul Aboriginal people and the native title claimant on behalf of his people. The native title claim encompasses the quarry site as a small element of a much wider claim.

His evidence was given at both the Tucki Bora Ring and on the grassy knoll at the eastern end of the proposed southern quarry expansion area. In addition to the evidence from Mr Roberts on matters relating to the broad Aboriginal cultural significance of the general landscape in the vicinity of the Tucki Bora Ring because of a range of sites connecting with the ceremonial use of the Bora Ring, he also described a ritual initiation path from the Tucki Bora Ring along the ridgeline that now comprises Wyrallah Road. This path, in his evidence, diverged from Wyrallah Road along the ridgeline leading to and including the proposed southern quarry expansion area and, from that point down on to the flat land below, now drained but that had, previously, been part of the Tuckean Swamp; and a transit across the swamp (by bark canoe) to a location which Mr Roberts called the "teaching hill" at which, in his description, further ceremonial activities forming part of the first stage of the young men's initiation ceremony which had commenced at the Tucki Bora Ring were carried out.

Following this evidence, we returned to the quarry site and heard further evidence, given informally, by Mr Carr and Professor Osborne, the groundwater experts for the council and the applicant respectively, concerning matters relating to the stability of the quarry face of the central extraction area (as it would have been at the end of the life of the expansion in that area had the quarry expansion been approved) and the rehabilitation processes that would have been applied, progressively, over the life of the extraction of that central extraction area expansion.

We also undertook an inspection of the location of the proposed water reuse dam - where Mr Carr explained to us his concerns about the nature of the proposed construction of that dam, particularly the depth to which it was proposed to be cut below the existing ground level and the risk of water table contamination that this presented. Professor Osborne responded to Mr Carr's concerns on this issue.

The following day, we resumed in Lismore Courthouse with evidence from Mr Roberts and from Ms Louise Cook, a member of the Ngangabal people, the Aboriginal people whose traditional country is located to the east of that of the Wijibul Aboriginal people. Ms Cook disputed Mr Roberts' evidence on a range of matters. Matters of dispute about the boundaries of the two traditional tribal areas are discussed later.

The following day, Mr Roberts gave further evidence in response to that of Ms Cook. The nature of the totality of the evidence on Aboriginal cultural issues, not only from this phase of the hearings but also from the fourth phase of the hearings noted later is discussed in the later section of this decision dealing with Aboriginal cultural issues.

At the conclusion of Mr Roberts' evidence, we heard concurrent evidence from Mr Carr and Professor Osborne who were joined by two further experts retained by the applicant, Mr Rasmussen, a hydrogeologist, and Mr Bishop, who had designed the water reuse dam and the sedimentation ponds upstream of it.

The result of that concurrent evidence was that, subject to further consideration of the capacity and layout design of the sedimentation ponds upstream of the water reuse dam, Mr Carr indicated that his concerns about the proposed method and depth of excavated construction of water reuse dam would be resolved, not by a redesign of the dam, but by ensuring that appropriate conditions applied to the upstream bunds and to the operation of the quarry. The quarry management conditions he required were in areas such as equipment refuelling locations; chemical or fuel storage and the like. He considered these were necessary to ensure that there was no prospect of any of the substances about which he was concerned, or by the discharge of water carrying sulphides from quarrying operations entering the water reuse dam and passing into the groundwater through the base of the dam.

The experts were asked to conduct a further joint conference and draft appropriate conditions that they agreed would resolve that issue. The outcomes of that process are detailed in a specific section later in this decision.

The fourth phase of the hearings

The fourth phase of the hearing commenced with one and a half days of further field inspections. The first day was not only of the quarry site but also of neighbouring properties in the vicinity of the quarry where the owners of these properties objected to the proposal.

Those properties were the Wadsworth, Woolley, Griffiths and White properties. One of the owners of each of these properties gave evidence during the course of the site inspection. Both Mr Woolley and Mr White took us to locations on their respective properties where they expressed concerns about the quality of what they described as "sediment carrying water that was currently discharged from the existing quarry during high rainfall periods".

We had earlier inspected, during our drive up Hazelmount Lane, a culvert under the lane where Mr White had commenced his explanation of his water pollution concerns. A number of photographs were provided to us by Mr White and Mr Woolley (with Mr White's photographs being taken at the culvert under the lane as well as on his own property). Mr White provided rainfall data of his observations over approximately a seven-year period and Mr Woolley provided the results of a number of water sample tests that he had had analysed by Southern Cross University's laboratories. Mr Woolley's sampling methodology was described and his sampling locations inspected during our visit to his property. Matters relating to visual and acoustic impacts on these properties are discussed in more detail later.

We also were shown a former quarry site that had been operated by Mr Champion and rehabilitated by him. This former quarry, although significantly smaller than any of the three extraction area elements now proposed, was offered as an example of a well rehabilitated quarry face at a slope of 1.8:1.0.

On our return path from this location to the site, we observed, across a fence from a driveway on Mr Champion's property, the location of a water extraction bore on property fronting the lane. We then returned to the quarry site and heard further informal evidence from the quarry management experts, Mr Thompson, Mr Weir and Mr Robertson (on behalf of the applicant) and Mr Reed (on behalf of the Council).

During the subsequent inspections of the Wadsworth and the White properties, Mr Wyatt, the visual impact expert for the applicant, produced a number of photomontages that show the extent of the screening vegetation proposed to be planted to ameliorate unsatisfactory visual impacts on these adjacent residences by the proposed northern and southern extraction areas. These and other photomontages are discussed in the context of the individual impact issues later considered.

In addition, in association with the inspection of the location of the proposed reconstructed Woolley bund, we also undertook an inspection of the unapproved earthen mounds to the west and north-west of the Woolley property (being those that had been erected by the applicant some years earlier). These mounds, along with the Woolley bund, are to be treated as if they do not exist for most but not all purposes of these proceedings.

We walked to the far side of these mounds, away from the Woolley residence and onto the applicant's property (to a point agreed by Mr Wyatt and Dr Lamb, the council's visual impact expert), to enable us to have an appreciation of the view that would be available from the Woolley residence if those mounds did not exist, their non-existence being the metaphysical position we are obliged to assume for the purposes of visual impact assessment in these proceedings.

The quarry inspection with the quarry management experts encompassed not only an explanation of the sequencing of the various stages of the proposed excavation but also identified those matters that were said to be construction activities rather than quarrying activities . The distinction between construction activities and quarrying activities is of some importance, as later discussed. The construction noise levels are agreed to exceed the noise criteria that would be applicable if the Industrial Noise Policy regulated construction noise activities (although, for reasons later set out, they do not). The criteria under that policy do, however, apply to operational quarrying activities.

The various construction activities were identified along with the elements of them that would potentially arise for the Woolley, Wadsworth and White residences and another residence of a non-associated property fronting Wyrallah Road at the western end of the southern extraction area. The acoustic experts, Mr Tumney for the council, and Mr Bridges for the applicant, were instructed to obtain information from the relevant quarry management experts as to the construction periods for each of these identified construction elements and the nature of the equipment to be used in that construction. In light of that information, they were directed to produce an agreed table setting out the acoustic impacts (if any) of the various identified construction elements, as relevant, for any impacted receiver locations identified by them.

On the second morning of this phase of the hearings, we undertook a view of the southern side of the proposed southern extraction area. This view, (the reverse aspect of one of three longer views possible from residences toward the proposed expanded quarry), was from a location on the southern ridgeline. The only view of the quarry from those residences will be of a low vegetated bund proposed to be constructed along the top of the escarpment on the southern side of the proposed southern extraction area. During the course of this element of our inspection, Mr Wyatt and Dr Lamb agreed that there would be no adverse visual impact on these residences.

Following this brief inspection, we moved on to inspect two quarries operated by Newman's Quarries. The first of these was a quarry that did not appear currently to be active. It was of modestly small dimensions, in general terms being not inconsistent with the present quarrying operations being undertaken on the Champions' site.

Although there was some discussion, during the course of the visit to this quarry, of the quality of the sandstone that was available to be extracted at this location compared to the structure and quality of the sandstone, particularly as to hardness, that might be extracted from the Champions' quarry, we found our visit to this quarry to be of little assistance. Further, because of the comparatively isolated location of this quarry, apparently a kilometre or so from the nearest residence and out an unsealed track through bushland, we do not consider that there is any relevant comparison between the quarrying activities at this site and those that are proposed on the Champions' site. To the extent that this quarry might be regarded as a supplier of material of the same or a similar nature to that which might become available from the proposed expanded Champions' quarry, this is a matter discussed elsewhere later in this decision.

The second of the two Newman quarries that were inspected was a very much more substantial one operating on several benches and across a quarry floor some 70 m or so in width. A variety of relevant quarrying equipment, including mobile screening and crushing equipment, was inspected at this quarry. In the course of this site inspection, there was also informal expert evidence given by the quarry management experts and by a representative of this quarry's management on the various methods of operation of this quarry; the nature of material produced by it and the markets into which such material was supplied.

During the course of our visit to the second of the two Newman quarries, the representative of that quarrying company who showed us around the site indicated that there were significant further sandstone reserves available to be extracted by an extension of quarrying activities at this location.

After carrying out these various site inspections, this phase of the proceedings then recommenced with evidence in Lismore Courthouse.

During the course of that evidence, it became obvious that amendments needed to be made to the quarry management plan with respect to the initial phases for the extraction of material from the proposed southern extraction area. Although the precise nature of the design of the amendments that were to be the necessary result from the further work of the applicant's quarry management experts and, as it turned out, to come from the further joint conferencing of all quarry management experts, there was sufficient understanding of what was required for us to grant leave to amend the development application then being considered (this development application being, itself, the amended development application that had been supported by the revised environmental impact statement). However, the precise detail of the amendments was to be finalised prior to the final phase, in Sydney, of the hearing of evidence.

Although leave was granted to make those amendments (as there was sufficient clarity as to what changes might be expected to arise), the question of whether or not the amendments were not "minor" and thus engaged the provisions of s 97B of the Planning Act was deferred to be determined as part of our final decision on the overall appeal. For reasons that are set out in detail later, we have determined that the amendments as finally formulated were, as a matter of fact, minor amendments and that no costs order pursuant to s 97B(2) is required to be made.

We also undertook a separate, after court hours, inspection of longer views to the site from the ridgeline to the north-east, several kilometres from the site. The outcome of this inspection is discussed later in the visual impact section of this decision.

The final phase of the hearings

The final phase of the hearings took place in Sydney and involved further quarry management evidence with respect to the final design of the proposed amendments to what had become known as the push up and over bund for the initial phases of the southern extraction area; geotechnical evidence with respect to this proposed activity; and acoustic expert evidence with respect to a wide range of aspects of the proposal as it had finally and in general terms emerged from the quarry management discussions.

As discussed in more detail, later, the acoustic experts had been asked to confer upon and consider the acoustic impacts of the proposed schedule of construction activities that were necessary precursors to operational activities of an expanded quarry.

We also heard additional visual impact evidence, particularly with respect to the longer views from the Wadsworth residence towards the south and east. This involved the production by Mr Wyatt of additional photomontages of the outlook toward the south and east from the Wadsworth residence at a point of time in the future proposed operational phases of the expanded quarry known as Progression 8.

During the final phase of the hearings, a final range of procedural matters required to be dealt with. These included the question of the terms for and appropriateness of admissibility of various portions of an affidavit sworn by Mr Champion. Mr Champion's affidavit was read, with a number of omissions resulting from general rulings and, on earlier Aboriginal cultural heritage evidence, a variety of specific determinations of admissibility. Mr Champion was not required for cross-examination.

Closing submissions

To suit the convenience of the diaries of senior counsel, the closing submissions were conducted on a fragmented basis. The process involved Mr Robertson SC making his closing submissions; Ms Duggan making her closing submissions a week later (but in the absence of Mr Robertson SC) and Mr Robertson SC making his final submissions in reply, with the benefit of a transcript of Ms Duggan's submissions a little more than a week later. At that time, with a sense of relief all round, we expect, we reserved our decision!

The relevant planning framework

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (the Mining SEPP) provides the relevant assessment framework for this proposal.

The aims of the Mining SEPP are set out in cl 2. It is clear, from the terms of the second of the aims, that the policy is intended to be facultative and beneficial for the establishment of activities that fall within its scope, such as this proposed quarry expansion.

The third of the aims is in the following terms:

to establish appropriate planning controls to encourage ecologically sustainable development through the environmental assessment, and sustainable management, of development of mineral, petroleum and extractive material resources.

It is from this third aim that the assessment framework established by the clauses that are set out in the following portions of this judgement become the basis for our assessment of the acceptability of this proposal.

Clause 5 of the Mining SEPP

The Mining SEPP contains a specific provision, cl 5, that deals with the relationship of this SEPP with other environmental planning instruments. This provides, relevantly, that if this Policy is inconsistent with any other environmental planning instrument, whether made before or after this Policy, this Policy prevails to the extent of the inconsistency.

The consequences of this provision exclude from our consideration any otherwise relevant provisions of the Lismore Local Environmental Plan 2000 (the LEP) and the Lismore Development Control Plan 2007 (the DCP) that are inconsistent with the Mining SEPP. As a result, except to the very limited extent described later in more detail in determining what are the likely preferred uses of land in the vicinity of this proposed expanded quarry (a matter requiring consideration as a consequence of cl 12 of the Mining SEPP), these two documents have no further work to do in this context.

Specifically, as set out below, although the DCP prescribes buffer zone distances for quarrying activities, these are not relevant in our consideration for the reasons later set out.

Clause 8 of the Mining SEPP

The Mining SEPP contains a specific provision, cl 8, that deals with the question of whether or not activities such as this quarrying proposal can be required to satisfy any zone objective that is set by a local environmental plan as relevant to the proposed development. The effect of cl 8 of the Mining SEPP is to exclude any assessment of the proposal against the objectives of any relevant local environmental plan.

The terms of the exclusionary provision contained in cl 8 of the Mining SEPP are as follows:

8 Determination of permissibility under local environmental plans

(1) If a local environmental plan provides that development for the purposes of mining, petroleum production or extractive industry may be carried out on land with development consent if provisions of the plan are satisfied:

(a) development for that purpose may be carried out on that land with development consent without those provisions having to be satisfied, and

(b) those provisions have no effect in determining whether or not development for that purpose may be carried out on that land or on the determination of a development application for consent to carry out development for that purpose on that land.

(2) Without limiting subclause (1), if a local environmental plan provides that development for the purposes of mining, petroleum production or extractive industry may be carried out on land with development consent if the consent authority is satisfied as to certain matters specified in the plan, development for that purpose may be carried out on that land with development consent without the consent authority having to be satisfied as to those specified matters.

The council concedes that the provision has the effect of removing the LEP's mandatory requirement that this proposal satisfies the zone objectives. However, the council contends that the zone objectives remained a relevant matter for consideration by virtue of the operation of s 79C of the Planning Act as the council contends that regard can be had to the zone objectives (as matters arising in the public interest) even if they are not required to be satisfied by the terms of cl 9 of that instrument.

We do not consider that this is the case as, in our opinion, the terms of the Mining SEPP are intended to exclude consideration of the zone objectives (and any other inhibitory provisions) of the LEP in their entirety.

To seek to import the zone objectives as a matter of discretionary consideration with some lesser but nonetheless influential bearing in consideration of a mining proposal would be to subvert the clear intention of the Mining SEPP to render satisfaction of the zone objectives a matter of irrelevance when dealing with a development proposal that it is within the scope of the Mining SEPP.

We reject this approach as we consider that any broader public interest importation of consideration of the zone objectives in the LEP (using s 79C of the Planning Act as the vehicle for so doing) would subvert what we consider to be the obvious intention of the Mining SEPP to constitute a codified framework for the assessment of activities that are brought within the scope of the SEPP.

The role of the Lismore Local Environment Plan 2000

The site is zoned partially General Rural 1(a) and partially Riverland 1(r) pursuant to the LEP. Quarrying is a permissible activity in both zones. There is, for reasons later discussed as arising out of cl 12(a)(ii) and (iii) of the Mining SEPP, a necessity to consider - but only in a limited fashion as later explained in more detail - the range of permitted uses within these zones.

The Lismore Development Control Plan 2007

The DCP contains, in Chapter 18, matters concerning extractive industries within the definition of which this proposal falls. Chapter 18, at 18.5, sets out the justifications for and minimum buffer zones to apply to various classes of quarrying activities depending on the annual extraction rate of the quarry. The relevant definition and buffer zone provisions are in the following terms :

18.2 Definitions

In this Chapter the following definitions apply:

"Buffer Area" means the area around an extractive industry which may be affected by quarrying activities e.g. noise, dust visual intrusion etc and which is created for the purposes of mitigating these impacts on adjoining land uses of a residential nature.

18.5 Buffer areas around Extractive Industry sites

Extractive industries involve the use of an extensive range of plant and equipment which creates noise, dust and even odour, as material is won from the quarry face and then crushed and screened for loading and transport. In some cases blasting is necessary to extract the material.

Quarrying activities are incompatible with many land uses, particularly those of a residential nature.

Even some farming activities may also experience problems, when located close to a quarry. It is therefore desirable to provide a buffer area around quarries to minimise land use conflicts.

In fast growing and intensively settled areas like Lismore, extractive industries and resources may be sterilised as a result of the encroachment of residential land uses. It is therefore desirable to identify significant quarries and resources and provide an appropriate buffer to prevent encroachment of residential and other land uses, which may sterilise a resource or lead to community pressures to restrain or cease production.

The extent of buffer required depends on the size of the quarry, whether blasting is utilised, nature of production methods, extent of crushing and screening operations, topography and site conditions and the intensity of surrounding development and land uses. A two level buffer standard has therefore been implemented, with a primary and a secondary buffer area established.

Urban/village-residential and rural-residential development is excluded from both the primary and secondary buffer area. Farmhouses on agricultural holdings may be permitted in the secondary buffer area (but generally not in the primary buffer area), if no alternative suitable location is available. All other non-residential land uses are permitted in the secondary buffer area. As a general rule only bushland, rural industries, or agricultural and forestry uses and rural outbuildings will be permitted in the primary buffer area. The following table summarises the minimum radii of buffer areas required by Council around extractive industries and resources:

Quarry Size Primary Buffer Zone Secondary Buffer Zone

Large Quarries 500 metres 800 metres

(10,000m 3 pa)

Medium Quarries 400 metres 600 metres

(5,000m 3 - 10,000m 3 pa)

Minor Quarries 300 metres 400 metres

(< 5,000m 3 pa)

Buffer areas may be reduced where topographic, climatic, site conditions or production techniques are favourable to reducing distance separation. For example a quarry located within a confined and enclosed basin, or a quarry which operates only on an intermittent basis, may enable a reduction in the extent of the buffer. Very small quarries, essentially used only as borrow pits, and minor quarries with intermittent use may require a buffer of only one or two hundred metres. A section of buffer zone could be reduced where a hill or ridge separates the quarry from a potential development area, or where the quarry is downwind of the development area (ie less affected by noise and dust).

In some cases buffer zones may need to be increased where, for example, the topography is very flat or a development site is located upwind of a quarry.

Where blasting is utilised at a quarry, a primary buffer zone of at least 800m - 1,000m is desirable. This buffer could be reduced to 400m - 500m, or even less, depending on blasting technique and where blasting is infrequent and/or only small "staggered" blasts are used.

Whilst buffer zones are not required along haulage routes, Council will encourage a maximum building setback to haulage roads, to reduce noise and dust nuisance. Residential and rural residential development will generally not be approved along or near unsealed quarry haulage routes. Such development should even be discouraged along or near sealed haulage routes servicing major quarries (production in excess of 50,000m 3 with 50 truck movements daily) unless an adequate buffer can be provided to the haulage road. Individual dwellings fronting unsealed haulage roads should be setback at least 50 to 60 metres from the road and be provided with a planting buffer to minimise dust nuisance.

We accept Mr Robertson SC's submission that the Mining SEPP's exclusion of consideration of matters raised by the LEP also excludes our consideration of any matters arising under any development control plan that has been prepared and adopted as subordinate to that local environmental plan.

As a consequence, we are specifically of the view that we should have no regard to the buffer zone distances set by the DCP as being the appropriate buffer distances that should, presumptively, be considered for a development proposal such as this.

However, if we are wrong in taking this position, it is clear that the range of matters in the preamble to and in the discussion following the table setting out the various buffer distances are designed to be responsive to the particular circumstances and site of each individual quarrying activity. We discuss, below, in the context of the meaning of the words "vicinity of the development" for the purposes of cl 12 of the Mining SEPP, the relevant and appropriate topographic context within which we assess this proposed quarry expansion pursuant to that SEPP. If we are wrong in our conclusion that it is inappropriate to have regard to any of the provisions of the DCP, we are satisfied that the basis upon which we have approached our overall assessment of the impacts of the proposed quarry expansion is entirely consistent with the underpinning principles of the buffer zones contained in the DCP.

As a consequence, although we have not specifically dealt with the DCP's numerical buffer zones later in this decision, we are satisfied that, if the DCP were required to be taken into account, the approach that we have taken would not be inconsistent with that required by the Court of Appeal's decision in Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 as to the role that a DCP should play in our decision-making process.

Clause 12 of the Mining SEPP

As a consequence, the assessment framework that we are obliged to follow is that which is set out in cl 12 of the Mining SEPP (although, as part of our Mining SEPP consideration we must also deal with specific matters in cll 14 to 17 of the SEPP). Clause 12 is in the following terms:

12 Compatibility of proposed mine, petroleum production or extractive industry with other land uses

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).

In essence, the assessment process that is established is one that requires us to undertake three separate and distinct tasks, in our opinion.

The first involves us undertaking an assessment of the impacts of the proposal. They are the matters that have been set out, in (146) below, as warranting such an assessment. Having undertaken that assessment, if we were to find that there are no impacts of the proposal that either warrant its refusal on their own or which, when taken together, warrant refusal of the proposal, the proposal then warrants approval.

Although it would then be unnecessary to consider the second step, that is matters of public interest in permitting the proposal to proceed, we are of the opinion that it would still be appropriate to consider the adequacy of such ameliorative steps as are proposed or, consistent with the "amber light approach" described below from (147), what additional ameliorative measures could be imposed by us that would reduce any undesirable impacts even though those impacts fell short, cumulatively, of warranting refusal.

On the other hand, if, as is here the case for the reasons set out in our first stage analysis, there are impacts of the proposal that individually or collectively warrant refusal, the first stage assessment must necessarily be followed by the second stage assessment required by cl 12 (b).

The second stage assessment, we are of the opinion, requires us to consider what are said to be the public benefits of the proposal and to assess whether or not there is sufficient public benefits to offset those impacts that would otherwise warrant refusal of the proposal.

Finally, whether or not there are sufficient public benefits in permitting the proposal to proceed notwithstanding its impacts, we are nonetheless required to undertake an assessment of the ameliorative measures proposed in the application and any additional "amber light" assessment ameliorative measures that we might impose on the proposal.

If the assessment of the public benefits of the proposal did not sufficiently offset the matters that warrant refusal or contribute to warranting refusal, as we have concluded is the case with this proposal, we must consider whether the ameliorative measures proposed together with any further ameliorative measures we might impose, can, when added to any public benefit outweigh, in a final analysis, the matters that warrant refusal.

For the reasons which are set out in our third stage analysis, we have concluded that they do not and that, having undertaken that assessment process and, as part of it, having considered the matters to which we are obliged to have regard as a consequence of the provisions of cll 14 to 17 of the Mining SEPP, the proposal must be refused.

The first step in any analysis of a proposal pursuant to cl 12 of the Mining SEPP, in our opinion, is to establish the existing uses of land in the vicinity of Champions' quarry. Because these uses are to be those in the vicinity of the development , it cannot include the development itself or any precursor element to it such as the existing quarrying operation.

We must also consider what constitutes the vicinity for the purposes of this provision. Although there has not been any submission to us by either side to these proceedings as to what might constitute the vicinity of the purposes of this provision, the proceedings appear to us to have been undertaken on the tacit agreement that the vicinity is, in effect, a catchment comprising those properties that are either landholdings associated with the quarry proponent or those that have been discussed as potentially affected properties. This catchment, in general terms, comprises the valley within which the existing and proposed expanded quarry is located together with an area bounded, to the east, by the White and Griffiths properties; to the north by the Wadsworth property; along the north-west boundary by Wyrallah Road turning, generally, to the west along Tuckurimba Road; and then returning to encompass the associated landholdings that lie between the White property and the ridgeline encompassing the southern expansion area of the proposed expanded quarry.

The existing and approved uses of this area of land, as we understand the evidence, are as follows:

Agriculture;
Residential uses associated with an agricultural activity (but not as a rural residential use); and
Public roads.

Although they are in what might be regarded as a broader locality, we do not consider that the Tucki Nature Reserve or the Aboriginal site of the scarred canoe tree (the latter was visited during the course of the site inspections) should be included. These lands are both on the western side of Wyrallah Road and somewhat removed from the site. They are certainly not within any potential visual catchment of the proposed expanded quarry or of the existing quarrying operations. For those reasons we do not consider that we should include them.

We also exclude any other use beyond the area of which we have described although, as we understand it, the Nature Reserve and the scarred tree location (because of restrictions to prevent impacts on this tree) are the only landholdings with uses that differ from the three we have earlier nominated in any slightly broader (but still immediate) locality context.

For determining what constitutes approved for uses of the land in the vicinity, we note definition of approved in cl 3(2) of the Mining SEPP - a definition in the following terms:

approved , in relation to any development or any use of land, means development or a use:

(a) for which any required development consent under Part 4 of the Act, or approval under Part 3A of the Act, has been granted (being a consent or approval that is in force), or

( b) that does not require any such development consent or approval under the Act and regulations.

We consider, with respect to those lands that are in private ownership, that the first two activities earlier set out are those that should be regarded as the existing and approved uses of land within the vicinity . In addition, as Wyrallah Road is functionally used for a distinctly separate use (whether so zoned or not), namely as a public road, such a use is also one of the existing and approved uses in the vicinity of the quarry site.

Having set out those uses, it is then necessary to consider, having regard to land use trends, what are likely to be the likely preferred uses of the land in the vicinity of the site in the foreseeable future.

We see no reason to conclude that the likely preferred uses , in the future, of land in the vicinity of the site will vary, in any materially relevant aspect, from those occurring at present.

Having set out what we consider to be the existing, approved or likely preferred uses , cl 12 of the mining SEPP then requires us to consider any ways in which this proposed development may be incompatible with any of those uses. Although the existing, approved and likely preferred uses are narrower than the range of currently permissible uses capable of approval pursuant to the present LEP, we do not see any necessity in undertaking our assessment pursuant to this subclause on any basis wider than the limited range of existing, approved and likely preferred uses of land in the vicinity; nor are we pressed by either of the parties to do so.

As a consequence, in order to fulfil the requirements of this subclause, it is appropriate to proceed to a conventional merit assessment of the impact of the proposed expanded quarry on relevant landholdings in the vicinity that are potentially impacted by the proposal and, encompassing in that assessment, any impacts that might be occasioned to Wyrallah Road and those travelling along it.

As part of this assessment process, we have proceeded on the basis adopted by the parties that impacts on associated properties within what can be regarded as the broader Champions' landholding are to be excluded.

As a consequence, our assessment of the impact of the proposal is confined to an assessment of any such impacts on:

the Wadsworth residence and property;
the Woolley residence and property;
the Griffiths residence and property;
the White residence and property; the residence and property that is an in holding within the Champions' land and having a frontage to Wyrallah Road in the south-western corner where the ridge line from the south eastern extraction area meets Wyrallah Road;
the nearest residence on Tuckurimba Road to the south west of the site; and
Wyrallah and Tuckurimba Roads in the vicinity of the site (and those who travel upon those roads)

In our view, this therefore requires a conventional planning assessment of whether or not there are any impacts of the proposed quarry that either warrant refusal of the proposal outright or, when taken together with other impacts, contribute to a cumulative effect that would warrant refusal of the proposal.

During the course of the first phase site inspections, we inspected the two intersections that require reconfiguration and reconstruction (as a consequence of increased heavy vehicle movements through these intersections by traffic generated by the proposed quarry expansion whether by the movement of empty vehicles to the quarry or by laden ones delivering product from the quarry and by the present non-compliant movements as a result of the present configuration of the intersections). The vehicles that are likely to be the predominant class of vehicles performing such movements are a tip truck with a dog trailer attached.

With respect to the extent of the redesign and works for each of the intersections, the following observations are made:

Mr Holyoake and Mr Pilgrim agreed on the extent of reconstruction of each of the intersections to ensure that movements by a truck and trailer combination when traversing the intersection on either the unladen route to the quarry or the laden route from the quarry would be able to transit each of the intersections in a lawful faction and in a fashion which would not put that truck and trailer combination in conflict with a 19 m articulated vehicle making the countervailing movement through the intersection at the same time as the truck and trailer combination was going in the opposite direction;
the first proposed reconfiguration design for the intersection produced by Mr Pilgrim would have had such conflicting movements being safe in only one of four of the possible combinations of movements;
the experts produced a preliminary analysis of what additional reconstruction of each of the intersections was necessary, beyond Mr Pilgrim's original plans, to ensure that these four potential conflicting sets of intersectional transits could be undertaken safely; and
a more detailed version of these plans was produced during the period between the first and second phases of the hearings.

However, the necessary consequences of our conclusion that the proposal is unacceptable means that the apportionment argument relating to the cost of the intersection upgrades or of on-going maintenance contributions does not need to be determined. As these issues are, in their final compass merely matters of quantum and off setting, we need not explore them further as they cannot contribute to our adverse conclusions on the overall proposal.

Water issues

At the conclusion of the evidence of the relating to water management issues, there remained a dispute between Mr Bishop, the relevant expert for the applicant, and Mr Carr, the relevant expert for the council, concerning the extent of protective measures necessary to be incorporated in the proposed stormwater sedimentation pond structures. There also remained a dispute between them as to what should be the extent to which the proposed water reuse dam could be constructed below the existing ground level and, if it were to be so constructed below existing ground level, what consequences, if any, there might be for water stored in the water reuse dam escaping into groundwater (if this were to occur).

Whilst these matters remained in dispute, the dispute was confined to a choice between the positions proposed by the respective experts for the construction of the various elements of the stormwater treatment and water reuse facilities for the site.

During the course of the site inspections, we had evidence from Mr Woolley and Mr White about their concerns relating to water quality from water being discharged from the present quarrying activities, being water which discharges (along with other water from the local catchment), into the lower portions of the Woolley property and, after passing through a culvert under Hazelmount Lane, finds its way via drainage channels adjacent to the lower portions of the White property (inundating low-lying parts of this property during high rainfall periods) prior to discharge into the nearby Richmond River.

We accept that these concerns, whether or not caused by present quarrying activities (a matter which we need not determine), to the extent that they might possibly arise from the activities of the proposed expanded quarry if not otherwise addressed, would be able to be prevented by conditions of consent we could impose within the range of possible construction options for water control structures provided by the evidence of Mr Carr and Mr Bishop.

Although, as might be expected, the range of preventative measures proposed by Mr Carr was more extensive and operationally restrictive than that advanced on behalf of the applicant by Mr Bishop, it is unnecessary for us to make a determination with respect to this issue as we have concluded, as elsewhere discussed, that there are a number of significant and entirely unrelated bases upon which the application should be refused. We note that nothing with respect to these water issues is pressed as warranting refusal or as to contributing to the warranting of refusal. We have not taken them into account in any of our separately enunciated bases for rejecting the proposal.

Cost pursuant to s 97B - Are the push up and over bund changes minor amendments?

These proceedings were commenced during the period where such appeals attracted consideration pursuant to s 97B of the Planning Act. Amendments were made to the development application during the course of the proceedings.

The first set of amendments was made early in the proceedings and constituted those encompassed by the amended Environmental Impact Statement in the proceedings. It was agreed by the applicant that these amendments were not minor and thus these attracted a costs order by consent at the time of those amendments that encompassed, amongst other costs, those pursuant to s 97B(2). It was in the sum of $135,000.00.

The applicable provisions of s 97B are engaged in a two-stage process. The first stage requires a determination as to whether or not, in the context of the overall application, the amendments are minor and, second, if they are not minor, the mandatory costs order requirement in s 97B(2) is engaged. The terms of s 97B have recently been amended as a consequence of the Planning Appeals Legislation Amendment Act 2010. However, the transition provisions that accompanied these amendments, now appearing in Part 24 of Schedule 6 to the Planning Act, make it clear that the present application does not receive the benefit of these significantly financially ameliorative amendments for non-minor changes to a development application. The relevant operative provisions of s 97B of the Planning Act applying to this proposal are in the following terms:

(1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment).

(2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal.

The position that thus applies is that, if we were to determine that these amendments were not minor, there is no agreement between the applicant and the council as to the quantum of costs consequent that following on such a determination. Had there been such an agreement on costs and we were to conclude that the amendments were not minor, we are satisfied that we could not go behind such an agreement. However, that is not here the position.

We also observe that, as the matter had taken some 15 or 16 hearing days when leave was granted for the amendments to be made, that being the relevant date for the consequences of any order that we might make pursuant to s 97B, any such order would, necessarily, be a significant financial burden to the applicant. We note, expressly, that this potential costs consequence for the applicant is not a matter appropriate for our consideration and we have ignored it.

There is, now, a deal of consideration of s 97B issues by members of the Court. To understand the nature of our consideration of these matters, it is convenient to set out a little of that evolution of consideration.

The first decision that dealt with the substantive question as to whether amendments were minor or not was that given in Cachia v Manly Council (No 2) [2009] NSWLEC 1107. This decision, for our purposes, established the proposition that such an analysis needs to be qualitative as well as qualitative. This broad proposition, with a number of expansionary analyses, has been accepted as a necessary underpinning element of the required s 97B analysis.

Two further decisions warrant specific reference in this context. In Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, Preston CJ made it clear (at para 29) that context is a relevant consideration as part of the qualitative and quantitative analysis.

In Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45, Pepper J also undertook a similar broad analysis of factors that might be relevant in this analysis. Relevant for our consideration, she said, in para 43:

I agree, however, with the council's submissions to the extent that if the amendments require significant assessment by the consent authority then they are less likely to constitute minor amendments for the purpose of the provision.

The factors that we consider are relevant for our analysis matrix in this matter are, in part, derived from the evidence and, in further part, from what we observed from the range of vantage points (longer distance and closer up) from which we observed this area of the proposed southern extraction area. These factors are set out in brief form below:

The total proposed development is one to be undertaken across three separate extraction areas, one of which is presently operating and has been so operating over a considerable period of time;
The quarry has a proposed operational life, in its expanded form, of 20 years or so (if an approval were to be given for the proposed expanded range of activities);
There was limited, at best, original design of the southern extraction area associated operational activities for the first element of this operational area;
The operation of the push up and over bund and associated operational activities is envisaged to occupy, at most, a total of a maximum of some 60 days in its construction process;
It is envisaged by the applicant's quarry management plan that the volume of material proposed to be extracted in cuts 1 and 2 in the south-western element of the southern extraction area that will be used, for the purposes of establishing the push up and over bund and an adjacent shielding bund around the perimeter of this portion of the southern extraction area;
To the extent that there will be visibility during the construction process, it is our assessment that this will not differ significantly for the amended activities as compared to what might have been the quarrying activities originally likely for this area;
Although there will be visual differences between that which is now proposed and that which might have been constructed on the original proposal, such visual differences would likely only have been able to be appreciated and understood, in our opinion, by a person who had some understanding of quarrying operations and of elementary soil mechanics;
The amount of material proposed to be extracted as part of the commercial operations of the quarry utilising the push up and over bund, that is the material, as we understand it, proposed to be extracted at cuts 3 and 4 in the south-western corner of the southern extraction area does not differ, significantly or at all, from that which would have been removed for commercial purposes under the quarry proposal as originally formulated; and
Although it is now envisaged that it may be necessary to use a wider range of equipment including a D9R bulldozer, a rock saw and/or a rock hammer within the extraction area behind the push up and over bund and, at least potentially, throughout the operation of the southern extraction area, use of this broader range of equipment, accepting for the purposes of this analysis the evidence of Mr Bridges coupled with a condition that such equipment is to be used sequentially rather than simultaneously, means that there will be no external acoustic impact of or visual appreciation of the use of a wider range of equipment, and any such appreciation would be confined to persons standing in the immediate vicinity of the quarrying activities and looking down upon them.

As a consequence of our consideration of all of these factors, we are satisfied that there is a qualitative difference between that which was contained in the development application as it existed prior to these amendments and that which resulted from the amendments. However we do not consider that this qualitative difference is significant and, on its own account, cannot take the status of the amendments beyond being regarded as minor on this criterion.

We also consider that there are quantitative differences in that the range of equipment to be used; the now specificity of the number of work platforms proposed outside the push up and over bund and other factors of this nature also means that there is a quantitative change proposed by these amendments. Again, we do not consider given the comparison with the full range of factors that are relevant, particularly, in this regard, the proposed life quarry and the three extraction areas over which it is to be spread, that a proper analysis against this criterion could lift the amendments beyond being regarded as minor on this basis.

Even if it is appropriate to hypothesise that amendments that are both qualitatively and quantitatively minor could, in some cumulative fashion, cease to be minor because of an aggregation of these two factors, we do not consider that that is the case with these amendments. That conclusion is one that we draw specifically and particularly because of the comparatively limited nature of the location and duration of effect of these amendments compared to the overall nature of the quarry proposal throughout its proposed operation.

As a consequence, we have concluded, after a consideration of all these factors, that these amendments should be regarded as being minor and that there is no requirement to make an order pursuant to s 97B.

Summary of conclusions

On the subsidiary issue of whether or not the amendments made to the development application as a consequence of the applicant's quarry management experts further consideration and now specific design of the activities in the southern extraction area associated with the push up and over bund, we have concluded on the facts that these amendments should be characterised as minor. The consequence is that no costs order pursuant to s 97B is required to be made. We have reached this conclusion after a consideration of a range of factors we have set out but particularly having regard to the scope and duration of the total proposed activities over the life of the project.

As a consequence of this factual determination, we do not need to reach any conclusion on the proposition advanced by Mr Robertson SC that the work to be done by the words " the original development application" in s 97B(2) was exhausted by earlier non-minor amendments and the resultant associated element of the earlier costs order.

We have undertaken our assessment of the impacts of and overall acceptability of the proposal using the structure set by cl 12 of the Mining SEPP. This has required us to undertake, first, an assessment of whether or not there were any impacts of the proposal that were unacceptable and, then, whether the consequence of any unacceptable impacts would warrant refusal of the proposal outright or could contribute, cumulatively, to warranting such refusal.

The second step to be undertaken, if there were such impacts, as we have found there are, is to consider whether or not there is sufficient public benefit in permitting the proposal to go ahead because such public benefit outweighed the adverse impacts.

Finally, whatever the outcome of the first two stages of our assessment, cl 12 requires us to consider what ameliorative measures are available and, in our opinion, also requires us to undertake this assessment of the ameliorative measures in a fashion that is consistent with the amber light approach taken by the court to development applications (that is whether or not there are additional ameliorative measures that we would require the implemented that would render then proposal acceptable or that these would lessen the impacts sufficiently for the public benefits to outweigh them).

As part of the steps in the assessment pursuant to cl 12, we have also been required to undertake the consideration mandated by cll 14 to 17 of the Mining SEPP. Having completed this process, we have then derived an overall conclusion as to whether or not in the project should be approved.

The single critical element that we have concluded is the key to the project, as part of the merit assessment, is the bund proposed to be reconstructed adjacent to the Woolley residence. We have concluded that this bund is unacceptable on two separate bases. The first factor that requires consideration is the duration and intensity of the construction noise that will be caused by the reconstruction of this bund. The specific conclusions that we have drawn with respect to this are as follows:

The extent and duration of the construction noise that will be inflicted on the Woolley residence is, in itself, unacceptable and warrants refusal of this element of the proposal;
If we are incorrect in reaching this specific conclusion concerning the Woolley residence, the combined duration and intensity of the acoustic impact of the reconstruction of the bund on the Woolley and the Griffiths residences is unacceptable and warrants refusal of this element of the proposal; and
If the combined duration and intensity of the impact on the Woolley and Griffiths residences (when taken together) do not warrant refusal of this element of the proposal, the addition of consideration of the intensity and duration of the impact on the White residence, although significantly less than the impact on the Woolley and Griffiths residences, when added to the impact of on the Woolley and Griffiths residences, render this element of the proposal unacceptable and require its refusal.

We have also, for the reasons set out, separately concluded that the visual impact of the reconstructed Woolley bund is unacceptable and, separately, warrants refusal of this element of the proposal on that basis alone.

If we are wrong in concluding that the various acoustic bases for refusing the reconstruction of the Woolley bund are sufficient in themselves to warrant refusal or we are in error in concluding that the visual impact on the Woolley residence is sufficient, in itself, to warrant refusal of this element of the proposal, we are strongly of the view that the total combination of the duration and intensity of the impact on the Woolley, Griffiths and White residences accumulated with the unacceptable visual impact of this bund on the Woolley residence warrants, as an accumulated set of impacts, refusal of this element of the proposal.

The final element of the first stage of the assessment process required by cl 12(2)(a) of the Mining SEPP is of the visual impact of on the Wadsworth residence. As we have earlier discussed, we are satisfied that there is an adverse impact on the outlook from the Wadsworth residence toward the south but that this impact does not warrant refusal of the project but would modestly contribute to such refusal.

We have concluded that there are no other impacts that are incapable of being dealt with by conditions of consent and, thus, no other matters that warrant refusal or could contribute to warranting refusal.

We observe, for the reasons set out in more detail earlier, that these conclusions expressly set aside any consideration of the merits or otherwise of matters raised concerning Aboriginal cultural heritage.

As we understand it, the consequence of rejection of the reconstruction and long-term placement of the bund in the vicinity of the Woolley residence coupled with the fact that the present bund adjacent to the Woolley residence has no development consent (as this was rejected on jurisdictional grounds in the Reavill Farm s 96 modification decision in 2010), we are obliged to proceed on the basis of considering the remainder of the proposal as if the original topography in the vicinity of the Woolley residence formed the topographic context for the project.

It is, as we understand the situation, the uncontradicted position of the acoustic evidence that, without the bund adjacent to the Woolley residence, none of the three proposed extraction areas can conceivably be regarded as acoustically acceptable. The consequence of rejection of the bund and the vicinity of the Woolley residence is that the totality of the quarry proposal must be rejected.

We have also concluded that there is an adverse visual impact on the outlook to the south-east from the Wadsworth residence. However, whilst this impact might contribute, to a modest extent, to warranting refusal of the proposal overall, it is certainly not sufficient, in our opinion, to warrant refusal in its own right.

However, if we are wrong in our cascading assessments of the impact of the bund in the vicinity of the Woolley residence as warranting rejection of that element and thus the necessary refusal of the proposal in its entirety (because of the acoustic consequences of that bund not existing), we are of the opinion that the accumulation of those impacts coupled with the visual impact on the Wadsworth residents warranted refusal of the proposal overall.

We expressly acknowledge that there is a clear distinction between the necessary rejection of the proposal on acoustic grounds that would follow from rejection of the bund in the vicinity of the Woolley residence and the separate accumulation of those impacts with the visual impact on the Woolley and Wadsworth residences warranting refusal of the proposal. The first is the necessary consequence of rejection of a critical element of the proposal whist the second is a rejection of the proposal in its entirety on an accumulated impact basis.

Having reached the conclusion in the first step of the analysis pursuant to s 12 of the Mining SEPP, we have then turned to consider what might be the public benefit of approving the proposal and whether or not any such public benefit outweighs the unacceptable impacts sufficiently to permit such approval in light of the clearly beneficial and facultative nature of the Mining SEPP.

We have earlier set out our analysis of those matters said by Mr Robertson SC to establish the public benefit of the proposal and the response by Ms Duggan to those submissions. We have also set out those matters that need to be taken from Mr Champion's affidavit that set out the factual limitations on possible utilisation of product to be derived from the quarrying operation. In drawing that material from Mr Champion's affidavit we have, as we indicated was the appropriate course to be followed, disregarded all those comments made by Mr Champion that attributed motivations to others as to why those limitations existed.

Our conclusion on the second step of the analysis pursuant to cl 12 of the Mining SEPP resulted in us concluding that there is no possible rational basis upon which there could be sufficient public benefit in permitting the proposal to be approved that would outweigh the unacceptable impacts (both acoustic and visual) of the bund in the vicinity of the Woolley residence on that residence and, during the reconstruction process of that bund, on the Griffiths residence.

The public benefit also cannot outweigh the adverse acoustic impacts on other receivers during the construction phases.

Whilst the limited public benefit of the proposal might be sufficient to set aside the impacts on the White residence and the visual impact on the Wadsworth residence, the severity of the impacts on the Woolley and Griffiths residences, in our opinion, could not conceivably be offset by the limited nature of the public benefit that might flow from permitting the proposal to proceed.

As a consequence, we have then proceeded to the third step of the cl 12 process and have considered the ameliorative measures that have been proposed by the applicant or could be imposed by us. There are a wide range of them as we have set out in our analysis earlier in detailed consideration of this topic. For the purposes of this conclusion, it is necessary to note, first, that there are a wide range of ameliorative measures proposed including contingent ameliorative measures such as temporary bunds or moveable barriers to shield particular acoustic impacts should the necessity arise during the quarrying operations.

We have also considered the possibility, although it is unnecessary to go to precise detail, that requiring the applicant to meet the totality of (or a greater proportion of the costs of) the intersection reconstruction of the two presently unsatisfactory intersections in the vicinity of the Wyrallah township could contribute to both the public benefit of the proposal and be an additional ameliorative measure, in the broadest sense, of an impact for the purposes of cl 12.

It is critical in our view, to understanding the ameliorative measures and the conclusion we have reached with respect to them that the principle necessary ameliorative measure required to permit the proposal to be approved is the construction of the attenuation bund in the vicinity of the Woolley residence. This ameliorative measure is the principal controversial ameliorative measure, in our opinion. Although there was controversy during the course of the site inspections concerning other aspects of visual impact of the proposal arising from the visual protection measures proposed by what might broadly be described as screen planting landscaping, we have not accepted those concerns except to the extent of determining that there is a limited adverse visual impact on the outlook from the Wadsworth residence.

We acknowledge that there is a significant range of other ameliorative measures both off site (such as signposting in the vicinity of school bus stops) and on the site (such as the highly precautionary nature of the regime we could have determined would be appropriate for the protection of downstream water quality and groundwater water quality).

However, taking into account the totality of the ameliorative measures but removing from that range of measures, in its entirety, the bund in the vicinity of the Woolley residence as we do not consider it is appropriate to have regard to an ameliorative measure that is, itself, so impacting as to be unacceptable, at the conclusion of the third stage of the cl 12 assessment, those matters we are required to consider pursuant to the second and third steps, including such ameliorative measures as we might impose consistent with the amber light approach adopted by the Court, cannot outweigh the very substantial and unacceptable impacts of the bund in the vicinity of the Woolley residence whether that unacceptability is sustained on all or any of the cascading elements that we have earlier set out as warranting rejection of that bund.

The final outcome, therefore, is that although the second and third stages of the cl 12 assessment could result in the setting aside, potentially, any cumulative rejection of the proposal by setting aside the visual impact on the Wadsworth residence, it cannot set aside the unacceptability of the bund in the vicinity of the Woolley residence, a necessary foundational element for the overall project to be approved. Rejection of the bund in the vicinity of the Woolley residence therefore necessitates refusal of the proposal in its entirety.

Orders

The orders of the Court, therefore, are:

1. The application for an order for costs pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 for the February 2011 amendments to the development application is refused as these amendments are minor;

2. The appeal is dismissed;

3. Development Application 2008/233 for the expansion of Champions Quarry at Wyrallah Road, Tucki Tucki, is determined by the refusal of development consent; and

4. The exhibits, other than Exhibit 1, are returned.

Tim Moore

Senior Commissioner

Sharon Sullivan

Acting Commissioner of the Court

Decision last updated: 23 May 2011

Medium Neutral Citation:	Champions Quarry Pty Limited v Lismore City Council [2011] NSWLEC 1124
Hearing dates:	25 â€“ 27 October 2010; 27 & 28 January; 2, 3, 4, 5, 7, 8, 9, 10 and 11 February; 28, 29, 30 & 31 March; 7 and 19 April 2011
Decision date:	12 May 2011
Jurisdiction:	Class 1
Before:	Moore SC, Sullivan AC
Decision:	1. The application for an order for costs pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979 for the February 2011 amendments to the development application is refused as these amendments are minor; 2. The appeal is dismissed; 3. Development Application 2008/233 for the expansion of Champions Quarry at Wyrallah Road, Tucki Tucki, is determined by the refusal of development consent; and 4. The exhibits, other than Exhibit 1, are returned.
Catchwords:	Proposed quarry expansion; role of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007; acoustic impacts; visual impacts; whether any public benefit of the proposed quarry is sufficient to outweigh its adverse impacts; is a s 97B(2) costs order required for the final, amended proposal.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Lismore Local Environmental Plan 2000 Lismore Development Control Plan 2007 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Planning Appeals Legislation Amendment Act 2010
Cases Cited:	Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207 Zhang v Canterbury City Council [2001] NSWCA 167; (2001) 115 LGERA 373 Riordans Consulting Surveyors Pty Limited v Lismore City Council [2010] NSWLEC 1333 Stockland Developments v Wollongong Council and others [2004] NSWLEC 470 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Cachia v Manly Council (No 2) [2009] NSWLEC 1107 Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153; (2009) 169 LGERA 45
Category:	Principal judgment
Parties:	Champions Quarry Pty Limited (Applicant) Lismore City Council (Respondent)
Representation:	Mr T Robertson SC (Applicant) Ms S Duggan SC (Respondent) Burrell Solicitors (Applicant) Sparke Helmore (Respondent)
File Number(s):	10069 of 2010

Topic	Paragraph
Introduction to Champions Quarry	1
The scope and outcome of the earlier proceedings	8
The nature and history of the final proposal	13
The parallel Part 3A application to the Minister	37
The unfolding of the proceedings
Introduction	40
The first phase of the hearings	46
The second phase of the hearings	61
The third phase of the hearings	64
The fourth phase of the hearings	75
The fifth phase of the hearings	94
Closing submissions	98
The relevant planning framework
State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 â€“ introduction and cl 2 â€“ Aims of the SEPP	99
Cl 5 of the Mining SEPP	103
Cl 8 of the Mining SEPP	106
The role of the Lismore Local Environment Plan 2000	112
The Lismore Development Control Plan 2007	113
Cl 12 of the Mining SEPP	118
Other clauses of the Mining SEPP	142
The issues	144
The amber light approach	147
Consideration of the issues
Visual impact
Introduction	152
The longer view from the north-east	153
The Wadsworth residence	155
The Woolley residence	171
The White residence	181
The view from Tuckurimba Road residences	191
The view from Wyrallah Road in the vicinity of the Wadsworth residence	193
The acoustic acceptability of the proposal
Introduction	199
Construction noise	202
Initial basis for assessment â€“ the applicantâ€™s case at its highest	211
The Woolley bund	222
Other construction noise impacts	228
Operational noise	238
Adjustment of bund heights and moveable barriers	248
Importation of material for the push up and over bund	258
Final conclusion on acoustic impacts	260
Quarry operations in the southern extraction area
Introduction	267
The acceptability of the push up and over bund	269
The geotechnical adequacy of the push up and over bund	290
The question of the public benefit [cl 12(b) of the Mining SEPP]	297
Ameliorative measures [cl 12(c) of the Mining SEPP]	347
Consideration of cl 14 of the Mining SEPP â€“ greenhouse gasses etc	366
Consideration of cl 15 of the Mining SEPP â€“ resource recovery	373
Consideration of cl 16 of the Mining SEPP â€“ transport	376
Consideration of cl 17 of the Mining SEPP â€“ rehabilitation	378
Conclusion â€“ balancing unacceptable impacts against the Mining SEPP	381
Other matters
Aboriginal cultural heritage issues	382
Air quality issues	397
Ecological issues	400
Inadequate information	431
Roads and traffic issues	435
Water issues	442
Costs pursuant to s 97B - Are the push up and over bund changes minor amendments?	447
Summary of conclusions	461
Orders	489