Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure

[2015] NSWLEC 1465

Land and Environment Court

New South Wales

Medium Neutral Citation:

Darkinjung Local Aboriginal Land Council v Minister for Planning and Infrastructure & Anor; Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust v Minister for Planning and Infrastructure & Anor [2015] NSWLEC 1465

Hearing dates:

1 September – 5 September, 8 September – 12 September 2014, 16 March – 18 March, 20 March, 23 March – 25 March 2015 – written submission on 13 April 2015

Date of orders:

17 November 2015

Decision date:

17 November 2015

Jurisdiction:

Class 1

Before:

Dixon C and Sullivan AC

Decision:

(1) The appeals are upheld.

(2) The amended application for the Calga Sand Quarry Project (06 - 0278) is refused.

(3) The exhibits are returned.

Catchwords:

APPEAL – Development Consent – Environmental Planning and Assessment Act 1979 (NSW) Pt. 3A -Major project – Objector appeal – Balancing of environmental, social and economic considerations –– Aboriginal cultural heritage – Adequacy of investigation - Adequacy of consultation – Mitigation and management measures - Extent of buffer

Legislation Cited:

Aboriginal Land Rights Act 1983 (NSW)

Aboriginal Cultural Heritage Consultation Requirements for Proponents 2010

Australian ICOMOS Charter for Places of Cultural Significance 2013 (Burra Charter)

Code of Practice for Archaeological Investigations of Aboriginal Objects in NSW

Department of Environment, Climate Change and Water NSW, Action for Air, November 2009

Department of Environment, Climate Change and Water NSW, Code of Practice for Archaeological Investigation of Aboriginal Objects in New South Wales, September 2010

Department of Planning and infrastructure, Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005

Due Diligence Code of Practice for protection of Aborigial Objects in NSW

Guide to Investigating , Assessing and Reporting Heritage in NSW 2011

Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation 2005

Environmental Planning and Assessment Act 1979 (NSW)

Gosford Local Environmental Plan 2014 (NSW)

Judiciary Act 1903 (Cth)

Land and Environment Court Act 1979 (NSW)

National Parks and Wildlife Act 1974 (NSW)

National Water Commisson, Australian Groundwater Modelling Guidelines, June 2012

State Environmental Planning Policy (Major Development) 2005 (NSW)

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

State Environmental Planning Policy (Infrastructure) 2007 (NSW)

Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas) (NSW)

Sydney Regional Environmental Plan No 9 Extractive Industry (No 2 -1995) (NSW)

Water Management Act 2000 (NSW)

Cases Cited:

Barrington-Gloucester-Stroud Preservation Alliance Inc.v Minister for Planning and Infrastructure [2012] NSWLEC 197 (2012) 194 LGERA 113

Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd (2013) NSWLEC 203

Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347

Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (2007) 158 LGERA 349

Garrett v Williams [2007] NSWLEC 96 (2007) 151 LGERA 92

Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195

Jones v Dunkel [1959] HCA 8; 101 CLR 298; 76 WN (NSW) 278; 32 ALJR 395; (1959) ALR 367

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (1986)162 CLR 24

Minister For Planning v Walker [2008] NSWCA 224 (2008) 161 LGERA 423

Rivers SOS Inc v Minister of Planning [2009] NSWLEC 213 (2009) 178 LGERA 347

Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (2006) 67 NSWLR 256

Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185 (2008)160 LGERA 20

Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527

Category:

Principal judgment

Parties:

Darkinjung Local Aboriginal Land Council (Applicant)

Australian Walkabout Wildlife Park Pty Limited (ACN 115 219 791) as Trustee for the Gerald and Catherine Barnard Family Trust (Applicant)

Minister for Planning and Infrastructure (First Respondent)

Rocla Materials Pty Ltd (Second Respondent)

Representation:

Counsel:
Ms S Pritchard SC (Applicant) – 10075/14
Ms A Hemmings/ Mr S Berveling (Applicant) – 14/10024
Mr J Hutton/ Ms Z Heger (First Respondent)
Mr C McEwen SC/ Ms K Nomchong SC with
Ms J McKelvey (Second Respondent)

Solicitors:
Beatty Legal Pty Limited (Applicant) - 10024/14
Chalk & Fitzgerald (Applicant) - 10075/14
Department of Planning & Environment (First Respondent)
Henry Davis York (Second Respondent)

File Number(s):

10024 of 2014 and 10075 of 2014

TABLE OF CONTENTS

INTRODUCTION

The parties

The hearing

Amended project application

Documentary evidence

Expert evidence

Lay witnesses

Constitutional issue

Procedure in the Class 1 jurisdiction of the Court

Overview of the litigation

Contentions - in respect of the Aboriginal cultural heritage

The Part 3A assessment process

The Power of the Minister to approve or refuse

The right of appeal

Effect of repeal of Part 3A

Statements of how the statutory requirements are satisfied in this case

The Project application

The Project application before the Court

The Site

Statutory controls

Relevant guidelines

Actions of the Respondents and determination

Rocla’s assessment of Aboriginal heritage

Agreed findings of Aboriginal heritage investigations

Order of consideration of Aboriginal heritage matters

The accepted relevant policies, procedures and standards for the assessment of adequacy of investigation and assessment of Aboriginal heritage

The ‘Women’s Site’ in its cultural landscape, and what can be deduced of its significance from the information before the Court

Contemporary Aboriginal knowledge about the ‘Women’s Site’ in its cultural landscape

The cultural landscape

Considering these arguments one by one:

Findings

The adequacy of the investigation and assessment of Aboriginal heritage, generally, within the site

Historic and ethnographic enquiry

The adequacy of the archaeological investigations

Findings

The adequacy of the assessment of the potential for the discovery of further Aboriginal heritage items within the site

Rock engravings

Findings – rock engravings

Subsurface deposits

Findings – subsurface deposits

Findings – adequacy of investigations take to date

The adequacy of the assessment of the cultural significance of the Aboriginal heritage within Stage 4

The adequacy of Aboriginal consultation in the conduct of these investigations and assessment

Findings – adequacy of Aboriginal stakeholder consultation

The effect of the impact of quarrying and the proposed mitigation measures

NON – CULTURAL HERITAGE MATTERS

Agreement between Rocla and AWWP in respect of all non-heritage issues previously in contention

Water

Acceptable groundwater modelling

Groundwater impacts to AWWP from existing quarry

Groundwater impacts to AWWP from proposed Stage 4

Regional groundwater impacts from proposed Stage 4

Near surface water impacts in the immediate vicinity of Stage 4 - water availability for Groundwater Dependant Ecosystems (GDEs)

Impact of quarrying on perched aquifers generally

Water resources and licence allocations

Ecology & offsets

Flora and Fauna

Groundwater Dependent Ecosystems (GDEs)

Suitability of the proposed biodiversity offset strategy

Noise

Alleged noise impacts to AWWP

Air quality

Operational dust impacts

Crystalline silica

Visual amenity

Traffic and transport

Socio-economics

Objector evidence

Findings – non heritage issues

Summary conclusions

Amber light

Orders

JUDGMENT

INTRODUCTION

1. These two objector appeals relate to a project application for the extension of the existing Calga sand quarry. They are brought in the Class 1 of the Court’s jurisdiction pursuant to Pt 3 Div 1, s 17 of the Land and Environment Court Act 1979 (LEC Act); and Pt 3A, s75L(3) of the Environmental Planning and Assessment Act 1979 (EPA Act).

2. They arise from a decision of the Planning and Assessment Commission (PAC) on 23 December 2013, as delegate of the Minister for Planning and Infrastructure (the Minister) to give project approval under s 75J of the EPA Act to the continued operation and extension of the existing sand quarry in the Gosford Local Governmental Area at Calga, NSW (Quarry) - about 1.6km from the M1 (formerly F3) Motorway.

3. The extension is referred to in the assessment documents as Stage 4; and it is to the south of the current operations (Project approval).

The parties

4. The applicants to the litigation are the Darkinjung Local Aboriginal Land Council (Darkinjung) and a neighbouring landowner, the Trustee for the Gerald and Catherine Barnard Family Trust t/a Australian Walkabout Wildlife Park Pty Ltd ACN 115 219 791 (AWWP).

5. The land, the subject of the project application, is owned by the second respondent, Rocla Materials Pty Ltd (Rocla).

6. The Minister, as the relevant consent authority, is the first respondent in each case.

The hearing

7. The appeals were heard together for 17 days over an extended period; and, with the consent of the parties, it was ordered that the evidence in each proceeding was evidence for the case in its entirety: (Transcript (T) Day (D)1 page (p) 2.5). Before that, it had been arranged between the parties that the evidence would be received by the Court under two general headings: ‘Aboriginal cultural heritage’ and ‘non-cultural heritage’ - commencing with the ‘Aboriginal cultural heritage’ evidence. This arrangement has proven useful because it facilitated the resolution of the non-cultural heritage issues, at least between the parties, by in-principle agreed draft conditions which culminated in the withdrawal of the non-cultural heritage contentions, although they remained agitated by some of the lay witnesses. We deal with the non- cultural heritage issues in the later part of this judgment.

Amended project application

8. It is important to appreciate that the project application before the Court is different from that approved by the PAC. The amended application has been supplemented with additional information which includes expert evidence and proposes a modified extraction area.

9. The amended application for the Calga Sand Quarry Project (06 -0278) is described in (Exhibit S27).

Documentary evidence

10. As to be expected, the environmental assessment documentation prepared for the Minister in respect of the original application is before the Court and contained in a four-volume tender bundle, which includes legislation (Exhibit R3). These documents are but a part of the considerable documentary material (including public submissions) filed and ultimately tendered to the Court in each case.

11. In considering, these proceedings, we have had regard to the parties’ various statements of facts and contentions (as amended) filed and dated 20 March 2014, 22 May 2014, and 4 August 2015 and their statements in reply dated 28 March 2014, 28 May 2014. These documents crystalise the issues in dispute which is the subject matter of the evidence.

12. We have also been assisted by the comprehensive oral and written submissions provided by the parties’ advocates. These include written opening addresses and/or outlines of argument at the commencement of the hearing in the Gosford Courthouse; and closing submissions and/or submissions in reply. Where necessary these submissions have been referenced in the judgment in the usual way, for example: Darkinjung’s final written submissions are described as (DFWS) and include a reference to the relevant page and/or paragraph. We have also had the benefit of a written transcript, and, again where relevant, it has been referenced in the following way e.g. transcript (T), hearing day (D), page (p) and paragraph.

Expert evidence

13. The names and areas of expertise of the various experts who have provided written and/or oral evidence in these proceedings are set out below. (For ease of reference we refer to them hereafter by their surname.)

List of Experts

No.	Name	Areas of Expertise
1.	Tracey Lee Howie (AWWP)	Indigenous
2.	Dr Timothy Owen (AWWP)	Aboriginal heritage
3.	Ms Sharon Veale (AWWP)	Aboriginal heritage
4.	Mr James Warren (AWWP)	Ecology
5.	Mr John Storer (AWWP)	Visual impact
6.	Mr Ian Bridge (AWWP)	Crystalline silica
7.	Mr Neil Sutherland (AWWP)	Water
8.	Mr Eric Rooke (AWWP)	Water
9.	Mr Christopher Anderson (AWWP)	Water
10.	Ms Sharon Hodgetts (Darkinjung)	Indigenous - DLAC
11.	Mr Paul Gordon (Darkinjung)	Aboriginal heritage
12.	Prof Josephine McDonald (Darkinjung)	Aboriginal heritage
13.	Dr Frans Kalf (Minister)	Hydro-geologist
14.	Dr Noel Merrick (Rocla)	Hydro-geologist
15.	Mr Peter Dundon (Rocla)	Hydro-geologist
16.	Dr David Robertson (Rocla)	Water
17.	Prof Claire Smith (Rocla)	Archaeologist
18.	Ms Mary Dallas (Rocla)	Archaeologist
19.	Ms Margaret Katherine (Rocla)	Indigenous
20.	Mr Steven Cooper (Rocla)	Noise
21.	Mr Damon Roddis (Rocla)	Crystalline silica
22.	Dr Richard Lamb (Rocla)	Visual impacts

Lay witnesses

14. The Court has also had regard to the written and oral evidence of the people who have lodged written submissions in response to the notification of the project application (the lay witnesses).

15. The written submisions and material provided by the lay witnesses has been collated by the Minister’s legal team and are at (Exhibit R4). The Court has also had regard to the water report prepared by Ian Sutton tendered during his oral evidence (Exhibit R7).

16. The notes of the oral evidence given by the lay witnesses on site, which have been agreed between the parties, are at (Exhibit 5). The oral evidence given by the lay witnesses in Court regarding Aboriginal heritage is found at the following transcript references: Barbara Grew (TD3 42.5 to 43.22); Lief Gratton Wilson (TD3 44.5 to 46.20); Peta Lonsdale (TD5 274.34 to 281.18); Deirdre Jinks (TD6 286.5 to 287.30); and Kelia Keogh (TD6 295.5 to 297.14).

17. The oral evidence given by the lay witnesses in Court regarding non-Aboriginal heritage issues is found at the following transcript references: Deirdre Jinks (TD6.5 to 287.30); Ian Sutton (TD6 288.3 to 291.2); Jake Cassar (TD6 292.5 to 294.25); Keilia Keogh (TD6 295.5 to 297.14); Margaret Pontifex (TD6 6298.5 to 299.35); Simone Glover (TD6 300.5 to 302.13); Graeme Osborne (TD10 667.5 to 670.45); Margaret Dupile (TD10 671.5 to 674.36); Angela Hellyer (TD10 675.5 to 678.36); Justice Suthers (TD10 679.5 to 681.29); Paul Burton (TD10 682.5 to 685.37); Barton Lawler (TD10 686.5 to 692.49); Dr Kate da Costa (TD10 694.5 to 696.10); Peta Lonsdale (TD11 813. 25 to 817. 35); Donna Bartlett (TD11 818.5 - 819).

18. With a few exceptions, the Court considers that the relevant parts of the lay witnesses’ evidence are encompassed by the submissions made by the applicants, and need not be responded to separately.

19. The exceptions include the constitutional issue raised only by Peta Lonsdale and Donna Bartlett and the water licence issue raised by Ian Sutton. We address Ian Sutton’s concerns later, but must deal with the constitutional issue at the outset.

Constitutional issue

20. Peta Lonsdale (otherwise known as ‘Gabitja’) together with Donna Bartlett, gave evidence that the issues of water, visual impact, noise, vibration and biodiversity are not severable to culture and heritage issues – nor are they severable to religion (TD11 816. 45 – 817 ).

21. On that basis, they told the Court that the decision of the PAC to approve the application under the EPA Act directly prohibited the free exercise of their religion and, as such, the PAC’s decision constituted a contravention of s 116 of the Australian Constitution.

22. Accordingly, they said the Court, in exercising the same functions, must deal with this constitutional issue – in accordance with s 78B of the Judiciary Act 1903.

23. Each requested that the Court stop the hearing and advise the Attorneys General of each State of the consitutional matter in accordance with s 78 B.

24. Peta Lonsdale and Donna Bartlett are not parties to the litigation. Based on their submissions and the legal authorities including the current approach of the High Court to these matters, Mr Hutton, Counsel for the Minister, informed the Court that the Minister did not propose to issue any s 78B notices (TD12 823.5).

25. Rocla and AWWP advised us that they did not wish to be heard on the matter.

26. While Ms Pritchard, Darkinjung’s Senior Counsel, stated that s 78B imposes a duty on the Court not to proceed once a matter involving the Constitution or its interpretation arises, she indicated that her client was not in a position to be heard on the merits of the point, although she acknowledged that questions of triviality, frivolity, and vexatious complaint are relevant to the Court's consideration of whether or not the duty is enlivened (TD12 825.5 – 826).

27. The Court decided that the applications as made did not provide any impediment to proceeding with hearing evidence and argument concerning matters severable from any matter arising under the Constitution: s 78B(2)(c).

28. Subsequently, the Registrar issued the relevant s 78B notices to each of the Attorneys General of the States and not one of them elected to pursue the matter.

29. In the circumstances, we are satisfied that the submissions made by the two lay witnesses do not raise any relevant constitutional impediment to our final determination of these proceedings.

Procedure in the Class 1 jurisdiction of the Court

30. The procedure to be followed in a Class 1 appeal of the Court’s jurisdiction is stated in s 38 of the LEC Act. It provides:

Procedure

38 Procedure

(1)    Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.

(2)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits.

(3)    Subject to the rules, and without limiting the generality of subsection (2), the Court may, in relation to proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of any person having professional or other qualifications relevant to any issue arising for determination in the proceedings and may receive in evidence the certificate of any such person.

(4)   In proceedings in Class 1, 2 or 3 of the Court’s jurisdiction, the Court may, in respect of a matter not dealt with by this Act or the rules, give directions as to the procedure to be followed at or in connection with the hearing.

(5)   In this section, a reference to the Court includes a reference to the Commissioner or Commissioners directed under section 36 to hear and dispose of proceedings.

31. While the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits - the rules of evidence, for obvious reasons, are still relevant.

32. Not surprisingly, objection was had to the hearsay and opinion evidence received by the Court during the course of the hearing. The parties also filed Lists of Objections – generally raising objection to the form and/or relevance - to the affidavit evidence. For example, Darkinjung raised objections to the relevance of the evidence of Margaret Katherine, a Dalabon woman from Barunga in the Northern Territory; AWWP and Darkinjung raised objection to the relevance and form of much of the evidence of Professor Smith.

31. In the ultimate, our general position was to accept the evidence tendered, noting the objections were generally as to form or relevance, and assigning appropriate weight.

32. Set out below is an overview of the litigation in respect of the ‘Aboriginal cultural heritage issues’. It does not discuss in any detail the ‘non-cultural heritage issues’ because - although they are still agitated by some of the lay witnesses to the application - those issues were ultimately withdrawn by AWWP during the hearing (although we note the final terms of some of the conditions dealing with those matters is yet to be resolved). We address the non-cultural heritage issues and evidence separately and at a later time.

33. In separating these topics, we are mindful of the submissions made by some witnesses that the Aboriginal cultural landscape does not allow for a separating out of the elements such as water, air, dust and noise from the non-tangible values of the landscape. Each informs the other. However, in order to address the statutory framework in which we find ourselves, it is necessary to separate these issues into manageable topics; and in this regard we have followed the parties’ lead.

Overview of the litigation

36. Proceedings number 10075 of 2014 was commenced by Darkinjung against the Minister and Rocla on 13 February 2014.

1. Darkinjung is a statutory corporation having been incorporated under s 50 of the Aboriginal Land Rights Act 1983 (NSW) (ALRA). The membership of Darkinjung is Aboriginal people who are resident in, or are accepted by the members as having an association with, the Land Council’s area: ss53-54 of the ALRA.

2. Pursuant to s 52(4) of the ALRA, the statutory functions of the Darkinjung include taking action to protect and promote awareness of culture and heritage and to promote awareness in the community of the culture and heritage of Aboriginal persons in its area.

3. The Project application site is within Darkinjung’s area.

4. Proximate to the proposed Stage 4 excavation area is the rock engraving site commonly referred to by all parties as the ‘Women’s Site’, (Aboriginal Heritage Information System, Office of Environment and Heritage (AHIMS) site card reference # 45-3-00119 or # 45-3-2195) and another site referred to as the ‘Stone Arrangement’ site (Calga SA1). They are of high cultural significance to Aboriginal people.

5. There are also a number of other sites - some of which have been identified on or in the vicinity of the Rocla site, which, it is accepted, are also of particular significance for an understanding of the Aboriginal cultural landscape.

6. Darkinjung opposes the proposed expansion of the sand quarry on the Rocla land for several reasons.

7. Darkinjung’s first position, on the basis of the cultural heritage values that have been identified, is that the Court could comfortably conclude that the proposal will have an unacceptable adverse impact that is unable to be avoided, mitigated or compensated or acceptably managed through conditions of consent (DFS p 45 at [162]).

8. Darkinjung contends that the project disturbance area (which is 30m deep and 500m wide) will isolate or ‘island’ the ‘Women’s Site’ and the ‘Stone Arrangement’ and isolate the known engravings including ‘the Emu’ (# 45-3-1794), ‘Shield /Kangaroo Foot engravings’ (# 45-31794) - located on the rock platform near the proposed entrance to the Quarry from Peats Ridge Road. In short, it will destroy the landscape in which these sites exist and which form part of their cultural significance.

9. The end result, for these known engravings, will be a haul road on one side and the quarry pit on the other (DFS p 46 at [165] – [168]).

10. For the reasons best summarised by Senior Law Man, Paul Gordon, the Darkinjug contends that if the project application is approved “the site will become almost like an island and will lose connection to the surrounding Country” (Exhibit A11 Experts’ Joint report - Aboriginal Heritage at p 6). It further submits, as Sharon Hodgetts explains in her evidence, that this excavation will not only isolate the engravings but will also remove the surrounding landscape; and that this “… landscape degradation compromises the spiritual and cultural connection that Aboriginal people have to the land or the site”. This, in turn, will exacerbate further the process of fragmentation of Aboriginal heritage that has occurred on the Central Coast and on the Somersby Plateau, in particular (Exhibit SH1 Tab 7 Hodgetts’ report June 2010 p 35, p 65). The ridge line that connects the ‘Women’s Site’ and the ‘Stone Arrangement’ to the Somersby Plateau will be largely removed; and the effect will be to completely transform the cultural landscape of which the ‘Women’s Site’ forms part.

11. In the ultimate, Darkinjung submits that an approval of the project will result in the destruction of Aboriginal cultural heritage, including engravings within the project area, and the cultural landscape in which they exist. For Aboriginal people, the destruction of this site (# 45-3-3635) is not merely destruction of artifacts but rather; “the erasure of an occupation area which informs the significance of surrounding engravings, and is part of the cultural landscape as a whole” (DFS p 47 at [169] - [170]).

12. Alternatively, as Darkinjung’s second position argues, there is not sufficient information provided to the Court to allow a proper consideration of the development application. The Land Council argues, moreover, that the Court cannot be satisfied that the lack of information can be addressed by way of conditions of consent.

13. The Land Council argues, furthermore, the proposal is not in the public interest under s 39 (4) of the LEC Act. The protection and the preservation of Aboriginal cultural heritage is part of the public interest: Garrett v Williams [2007] NSWLEC 96 (2007) 151 LGERA 92 per Preston CJ at [67]).

14. The Land Council further submits that it is not Darkinjung’s intention to sterilise the site from all development; but the nature of the proposed development and its inevitable impacts on Aboriginal culture and heritage is the point at issue.

15. Aboriginal cultural heritage is not a renewable resource. The Land Council submits that friable sandstone, suitable for most applications, is not in short supply in New South Wales.

16. The Director General’s (DG’s Requirements) Requirements - dated 9 March 2009 and issued pursuant to s75F of the EPA Act for the Project application - specify that the Environmental Impact Assessment for the Project application must take account of relevant State Government technical and policy guidelines.

17. In relation to Aboriginal heritage, the DG’s Requirements referred to the Draft Guidelines for Aboriginal Cultural Heritage Impact Assessment and Community Consultation [DEC] (the 2005 Heritage Guidelines ); and in relation to non-Aboriginal heritage, inter alia the Burra Charter (the Australia ICOMOS Charter for places of cultural significance (Burra Charter). At the hearing, the experts for the parties also had regard to these Guidelines together with additional guidelines, policies and procedures in an agreed tender bundle (Exhibit R3).

18. The Guidelines acknowledge that, for Aboriginal people, Aboriginal cultural heritage consists of places and items which are of significance because of their traditions, observations, customs, beliefs and history. They also acknowledge that Aboriginal heritage is dynamic and may comprise physical or non-physical elements. Therefore, it follows that the significance of individual features is derived from their inter-relatedness within the cultural landscape. This means that the features cannot be assessed in isolation and that assessments need to consider the feature and its associations in a holistic manner.

19. Darkinjung contends, in respect of Aboriginal cultural heritage and in this case, that the precautionary principle is engaged; and that Rocla bears the evidentiary burden to demonstrate that the threat does not exist or is negligible. The two threshold tests identified in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (2006) 67 NSWLR 256 at [150] namely: a) a threat of serious or irreversible environmental damage; and, b) the requisite degree of scientific uncertainty are both presumptive on the facts of this case.

20. Therefore, their argument runs, approval of the carrying out of the Project - without having first obtained a full understanding of the heritage values of the Project site - would be contrary to the precautionary principle: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347 (Warkworth) as per Preston CJ at [59].

21. Darkinjung contends that Rocla’s investigations and assessment of the Aboriginal cultural heritage values of the Rocla site are inadequate and incomplete. Consequently, Darkinjung maintains it is premature for the Court to approve the Project application because there is insufficient information before the Court to assess the application.

22. Rocla’s proposed retrospective consultation to overcome the inadequate investigations, assessments and consultation to date, fundamentally, deviates from the purpose of consultation, which is to inform heritage values and the significance of place. Darkinjung joins with AWWP to submit that an approach of “approve first and assess and consult later predetermines that the conservation of the Stage 4 area is not an appropriate outcome and that the quarry is an appropriate land use” (AWWP WS dated 17/2/2015 at [82] - [83]).

23. In short, Darkinjung submits that the findings of the investigations, assessment and consultation process proposed by Rocla are not known to the Court and, thereby, they cannot inform the Court’s decision to approve the Project or that the Court can be satisfied that the - as yet unknown mitigation measures - will satisfactorily protect against unknown impacts on Aboriginal cultural heritage.

24. Accordingly, Darkinjung submits that the Court should not grant approval for the destruction of Aboriginal cultural heritage in circumstances where the nature and significance of what is to be destroyed is unknown. Such a determinant is present here. The Statement of Significance, under the Burra Charter, must be completed in order to appreciate the significance of a site and its cultural landscape. Article 6.2 of the Burra Charter provides:“… policy for managing a place must be based on an understanding of its cultural significance.”

25. In this case the Statement of Significance is incomplete. For example, there is little ethnographical and historic investigation, no survey for sites such as rock art sites concealed by vegetation, and no subsurface investigation of sites identified in the Rocla Stage 4 area, or of such sites which may exist in the Stage 4 area despite the agreement of all experts that such sites will probably be located by further investigation. Until that work is done, the CMP cannot be completed and the level of significance identified to inform the CMP. In these circumstances, the project should not be approved with an incomplete CMP.

26. Criticisms of Aboriginal people’s failure to bring forward information in a timely manner (Exhibit S9 Smith report at [12.12]) are unfair and do not withstand scrutiny on the facts.

27. For those reasons and more, Darkinjung seeks orders that the Project application be disapproved.

37. Proceedings number 10024 of 2014 was commenced by AWWP against the Minister and Rocla on 13 February 2014.

1. AWWP owns the land immediately to the south and to the east of the land the subject of the Project application. AWWP also holds the Crown lease for land further south of its own land.

2. It operates the Australia Walkabout Wildlife Park on that land.

3. AWWP seeks orders that the Project application be disapproved for the reasons articulated by Darkinjung as already outlined.

4. However, AWWP also raises the issue of intergenerational equity – and claims that an approval of the Project will stop Aboriginal people from practising their religious practices and customs and impede their ability to pass them onto future generations.

5. Following a consideration of the weighted matters to be balanced, each against the others as a qualitative exercise, and including the economic grounds as pressed by Rocla, AWWP contends that the extraction of sand from the Stage 4 area of the quarry cannot be justified. They seek further that it be noted an approval of the Project application is against the public interest - as demonstrated by the community opposition to the application to be seen in some 2827 submissions in response to the project; the further 19 submissions following exhibition of the PRR; and the evidence given by the objectors to the application.

6. When the proceedings were commenced, AWWP pressed a number of ‘non-heritage issues’ as a basis for a disapproval of the Project application.

7. AWWP submitted that the Project would cause adverse impacts to their land – namely, adverse noise (from plant operations, hours of operation); poorer air quality (dust); degradation of visual amenity; traffic and transport problems; socio-economic, ground water and regional water impacts (perched aquifers, groundwater-dependent consequences on ecosystems, and water resources generally, and water licences). Ecological and other offsets were nominated; however, as noted, these contentions were withdrawn by AWWP subject to the imposition of its agreed conditions of consent.

8. These issue remain a concern for a number of the lay witnesses.

9. Darkinjung criticisms of the proposed conditions of consent are outlined in its Alternative Submissions in Annexure B to its Final Submissions.

38. The Minister and Rocla’s (the respondents’) position - Aboriginal cultural heritage

1. Rocla anticipates, given the heavily vegetated environment of the proposed Stage 4 extraction area, that future investigations of the Rocla land may uncover new sites which may further inform the cultural landscape – and/or possibly heighten - the significance of the ‘Women’s Site’. However, Rocla contends that its proposed CMP and the proposed conditions of the consent appropriately manage this outcome.

2. Rocla concedes that the ‘Women’s Site’ and the recorded ‘Stone Arrangement’ site are linked to a broader cultural landscape that includes other archeological sites and cultural practices and traditions.

3. However, it submits that an acknowledgement of a broader cultural landscape does not have the consequence that all land in between those sites must be preserved; and that the exercise of power under s 75J of the EPA Act requires a balancing of the impacts of the Project. Relying on the Court’s decision in Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008];(2008) 160 LGERA 20 at [95], Rocla submits:

“Environmental impact assessment involves a prediction of likely future impacts of a project that has not yet occurred on an environment about which there will invariably be imperfect knowledge. Where the environment is hidden … the uncertainty is necessarily heightened. Nevertheless decisions need to be made. The question is whether there is sufficient, credible information upon which to assess the impacts of a project and make a decision”.

4. Rocla submits that this question, based on the evidence, deserves an affirmative answer.

5. Rocla contends that, in the context of Pt 3A, there is a wide power to impose conditions, including a power to approve of a Project conditional upon the completion of a CMP, provided it does not impermissibly defer consideration of important matters. Such an approach, it submits, recognises the need for flexibility for large-scale projects; and allows the opportunity to respond to the unusual circumstances of the present case, which includes the relatively recent recognition of the Aboriginal significance of the ‘Women’s Site’ which is still evolving. Rocla submits that the proposed draft CMP and the detailed heritage conditions set out a clear policy for the responsible and respectful management of the heritage significance of the Rocla land. The proposed ongoing consultation with stakeholders and recommended limited further archaeological investigations, according to Rocla, ensures opportunity for necessary adjustment to be made prior to any quarrying commencing in the Stage 4 Extraction Area.

6. The Minister and Rocla accept that a consideration of the precautionary principle is part of the public interest and that it is an appropriate consideration. The DG’s report refers to that principle (Exhibit R3 Vol 3 Tab 23 p 2118).

7. However, it is just one of the factors to be weighed up in the balancing process: Telstra at [179] - [181].

8. Rocla rejects the application of the precautionary principle on the facts and submits that it fails at the first step. If the Project (based on the amended application (Exhibit S27)) is carried out in accordance with the agreed draft conditions, there will not be a threat of serious or irreversible environmental damage.

9. Rocla contends that the Applicants’ submission proceeds on the basis that the excavation of Stage 4 Extraction Area will necessarily have an unacceptable impact upon the cultural landscape of the Rocla land. However, there is no basis to draw such a conclusion from the evidence. It is Rocla’s contention the evidence does not support a finding that excavation of the ‘free land’* damages the cultural landscape in the way suggested by the Applicants (*a term used by Margaret Katherine in respect of land within her own country).

10. Rocla accepts that assessing the seriousness or irreversibility of the environmental damage demands a consideration of many factors, including the spatial scale of the threat, the magnitude of possible impacts, the perceived value of the threatened environment, the manageability of possible impacts, the rationality and level of public concern based on scientific and other acceptable evidence; and, of course, the reversibility of the possible impacts - including the difficulty and expense of reversing such impacts: Telstra at [131].

11. However, having adopted a cautious approach pursuant to the Burra Charter (as opposed to a precautionary one under ESD principles), Rocla contends that the risks of possible impacts on the Aboriginal cultural heritage values attached to the Stage 4 Extraction Area and beyond can be successfully managed. Any potential impact on an item/site that has not yet been identified will be managed as part of the method of its discovery. In short, Rocla offers that, on the discovery of an item or site of significance, after clearing the vegetation it will rectify/reverse the impact by replacement of vegetation or some other form of preservation, including salvage of archeological material.

12. Concurrently, Rocla proposes that, if acting on the assumption there was a threat of serious or irreversible damages as a result of the work the Court were to disapprove the Project, a second consideration relevant to that determination would be invoked, the second precondition relating to the applicability of the precautionary principle – that relating to scientific uncertainty as to the exact consequent environmental damage. The “uncertainty” required in relation to the second precondition is “as to the nature and scope of the threat of environmental damage”: Telstra at [140]. However, the level of scientific uncertainty required is not an “all or nothing” proposition - some uncertainty is permitted before the condition is triggered: Telstra at [141] - [149].

13. The level of the uncertainty required is proportionate to the magnitude of the potential environmental damage: Telstra at [146].

14. Bearing on this, Rocla insists substantial steps are to be taken to reduce any uncertainty of impact. For example, through the design of the project in light of what is already known about the Rocla land and the scope and detail of measures to be included in the CMP.

4. Rocla submits that the threats of environmental damage in this instance, to Aboriginal cultural heritage, are known with a high degree of certainty. It is known that if a cautious approach is not adopted and the detailed protocols designed are not implemented, there could be substantial injury to unknown items and sites. The only unknown, it is maintained, is the nature of the items and the sites that are likely to be discovered via further investigations; and this is not the relevant threshold to trigger the application of the precautionary principle.

5. Given the proposed protocol under the CMP – which is “stop, notify, record, assess threats, manage” (Exhibit S17, p 42) - when any item or site is discovered the Respondents contend that there is no risk that an item or site of substantial cultural significance will be damaged in a way not currently understood.

6. The Respondents reject the claim by AWWP that the Project would unfairly and inequitably affect Aboriginal people’s ability to continue their religious practices/customs and to pass them on to future generations. There is no intergenerational equity issue raised on the facts of these proceedings. The Project facilitates access to the ‘Women’s Site’ which, together with the ‘Stone Arrangement’, is preserved and protected in perpetuity for the benefit of current and future generations.

7. This Project has an end date. The land will be revegetated and, while the topography of Stage 4 area will be different from today, it is submitted that the difference will not be so adverse on future generations as to warrant disapproval of the Project application.

8. The Respondents’ submit that there is sufficient evidence before the Court to justify conditional approval pursuant to s 75J of the EPA Act. The investigation and consultation over a period of nine years is well above industry standard and is sufficient to enable a decision to be made with respect to the tangible and intangible cultural significance of the ‘Women’s Site’, and the Rocla land more generally. The 60m buffer (or larger if required) around the ‘Women’ Site’ is appropriate to protect that site and its core cultural landscape boundaries.

9. According to Rocla, the site’s cultural connections are fundamentally spiritual and, therefore, do not prevent the quarrying of Stage 4 Extraction Area.

10. Rocla submits that the exercise of s 75J requires a balancing of the impacts of the project. The requisite information exists and should lead to conditional approval of the Project which would result in an environmentally sustainable outcome; and a reasonable compromise that acknowledges that Aboriginal people are the primary determinants of the cultural significance of their heritage but not the sole determinants of land use, planning or management.

11. The respondents jointly submit that, with the approval of the Project, access will be provided to the site and Rocla will incur the expense of investigating the area. Aboriginal people will be guaranteed an ongoing role in the management of the site through the conditions of approval and, in particular, the CMP process (Rocla FWS at [6.5.59]) and Minister’s FWS at [73] - [74]).

12. There are also economic benefits to be derived from the Project, including employment and ensuring affordable regional sand supplies. Other benefits relied upon by Rocla are detailed in the DG’s report (Exhibit R3 Vol 3 Tab 23 p 2162).

13. All of these factors need to be included in the weighing up process - the impacts (as addressed by the mitigation and management measures outlined in the evidence) and benefits to be derived from the Project, not least of which is the preservation and protection of Aboriginal heritage.

14. In the ultimate, the respondents submit that the appeals should be dismissed and the Project application (as amended) should be approved generally in accord with the proposed agreed draft conditions (Minister’s comments on the proposed conditions at [26]). It is entirely consistent to accept that the current state of knowledge is sufficient but, that some aspects of the significance of the site are unclear; the understanding of further significance may evolve in the future; and,were this so, Rocla would introduce a proposed range of measures to mitigate and manage the impacts of the Project on Aboriginal cultural heritage (Rocla FWS at [6.6]).

The Ministers adds …

39. As indicated, the Minister’s general position is that the amended Project application should be approved subject to conditions. As to the non-heritage issues - ultimately withdrawn by AWWP- the Minister agrees with and adopts Rocla’s closing submissions on non-heritage filed on 2 March 2015.

40. The Minister’s conditions of approval (Annexure A to the MFS) largely reflect the conditions proposed by Rocla subject to some modifications which are discussed in Section G of the MFS. For example, the Minister does not accept the proposed conditions which give preferential treatment to AWWP’s land over other members of the public.

1. The Minister only filed one expert report on hydrology by Dr Franz Kalf, of Kalf & Associates.

2. Dr Kalf had previously been engaged by the Department to provide an independent review of assessment submitted by Rocla and to address residual groundwater issues and concerns (Exhibit R3 Vol3 Tab 23 pp 37, 43 and 47).

3. With respect to the lay witness evidence, the Minister endorsed the submissions made by Rocla and only raised one additional point in relation to the evidence of one objector, Mr Sutton (TS D6 288-291; Exhibit R7).

4. Mr Sutton contends that Rocla‘s water licensing arrangements are deficient.

5. In response the Minister, based on advice from the Office of Water in its letter dated 29 August 2014 (Exhibit R4 Tab 21), submits that the water licensing arrangements are adequate.

6. The Minister did not file any evidence on the issue of Aboriginal heritage. However, the Minister made a number of submissions on the topic. These matters are set out in Parts B-G of the MFS.

7. The Minister does not dispute that the Rocla site and, in particular, the ‘Women’s Site’, has cultural significance for Aboriginal people. What the Miniser does dispute is the proposition that the significance of the area is not sufficiently understood to enable a decision to be made on the Project application; and whether the mitigation and management measures proposed are sufficient to address the impacts on the area; and whether the Project should be approved.

Adequacy of investigations

8. It is the Minister’s position that there is sufficient information to enable a decision to be made, that the impacts can be sufficiently mitigated and managed, and that the approval of the Project is in the public interest.

9. To be clear, his stated position is that there is sufficient historical, social and archaeological evidence available sufficient to enable informed decisions to be made about the Project application.

10. The Minister contends (together with Rocla) that any perceived inadequacies in the expert reports by Appleton, Atkinson and Ross must be considered in light of the further information available today – including that obtained through the hearing. Accordingly, the Court must decide “whether there is sufficient information today to enable a decision to be made on the Project application.”

11. Contrary to Darkinjung’s submission (at [144]) the Minister contends that Part 3A “contemplates giving an approval first and further investigations, assessment and approval at a later date”. The distinction (as argued by Darkinjung between an approval under Divisions 2 and 3) is rejected.

12. Furthermore, the Minister contends that Pt 3A was designed to streamline the approval of state-significant projects - including the need to remove certain approvals such as those under the National Parks and Wildlife Act 1974 (NPW Act): ss 87 and 90. Consequently, to require more information at the application stage would undermine the purpose of removing the requirement for certain approvals (i.e. s 90 NPW Act).

13. The Minister joins with Rocla to submit, in respect of the adequacy of information, that no inference can be drawn in respect of Rocla not calling Anne Ross, John Appleton or Amanda Atkinson to address the Court in this case: Jones v Dunkel [1959] HCA 8; 101 CLR 298; 76 WN (NSW) 278; 32 ALJR 395; (1959) ALR 367. The Minister submits that Prof Claire Smith is more than qualified to express a view about those earlier reports and opine on the ultimate question at issue; on the whole of the available evidence upon which the necessary investigations have now been undertaken.

Sufficiency of Consultation

14. While the Minister contends that the extent of consultancy undertaken prior to the approval was adequate - because the OEH held it to be compliant with the requisite 2005 Draft Guidelines (Exhibit A11 p 27), and the DG in issuing the statement of compliance clearly indicated satisfaction with the consultation undertaken by Rocla (Exhibit R3 Vol 3 Tab 23 pp 2118 - 21154) - the Minister submits the Court must determine on the facts as they presently stand whether the consultation (including the proceedings) has been sufficient.

15. With that in mind, the Minister submits that any concern the Court might have about the adequacy of earlier consultation has been addressed by the further opportunities for consultation that have been afforded since the Project approval - including through Sharon Hodgetts, Tracey Howie, Paul Gordon and the opportunity for objectors to make submissions and give evidence in these proceedings.

16. It is the Minister’s position that there must be a finite consultation process and that the Aboriginal Cultural Heritage Consultation Requirements for Proponents 2004 anticipates as much (Exhibit S18 Vol 1 Tab 4 p 69). The fact that there are some people in the community who, despite the extensive notification of the application, have not become aware of it or have decided not to come forward does not mean that consultation has been inadequate. Nor is it necessary for Rocla to achieve an idealised level of consultation over and above industry standard.

17. Rocla submits that the Court can be satisfied that the consultation todate has met the industry standard.

18. The Court only needs be satisfied of that fact and the proponent cannot be expected to achieve some undefined higher ideal of the concept of consolation as discussed by Mr Gordon: (TS D8.489-44 to TD8.492-5).

19. Adequacy of assessment of Aboriginal cultural heritage

20. As earlier stated, the Minister accepts (as does Rocla) that the site has cultural significance for Aboriginal people and that it forms part of a cultural landscape.

21. The evolution of the understanding of the significance of the Rocla site has obviously taken place in the context of the proposed development. Therefore, based on the evidence of Prof Claire Smith, the Minister submits that the significance of the site is likely to have been heightened by the threat posed by this development. As Prof Smith observed:

‘I think significance – when people give statements of significance and especially in this instance, the purpose for which the land is – proposed purpose of the land is informing the statements of significance. I don’t think that is a bad thing. I am just saying that’s how I read the reports by Mingaletta, by DLALC, by Guringai, the first things they say is in the recommendations we do not want quarrying.” (TS D9.594-48)

22. In support of the above proposition the Minister invites the Court to appreciate the different positions taken by the Darkinjung Aboriginal Land Council in respect of the protection of sites on the AWWP land as compared to the Rocla land. The protection afforded to several engravings on the AWWP site i.e. by low ropes or nothing - in respect of the large sandstone rock platform believed by Mr Gordon to be a women’s birthing site – (TS D6 374.38) evidences this proposition. The Minister submits that “This does not seem to have been the cause of any particular concern on the Darkinjung’s part” (Minister’s closing submissions (MCS) dated 10 March 2015 p 17 at [52].

23. With respect to the precautionary principle, the Minister invites the Court to appreciate the effect of the principle. Even if it were to apply to this case, the Minister submits that such application does not mandate the refusal of the project. Darkinjung’s submissions at [151] are mistaken in that respect.

24. Rather, at MCS [76], the Minister submits that the principle is just one of the factors to be weighed up in the balancing process. As Preston CJ observed in Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133 (2006) 67 NSWLR 256 at [179] - [181]:

The precautionary principle, where triggered, does not necessarily prohibit the carrying out of the development plan, programme or project until full scientific certainty is attained. The solution is to assess the risk-weighted consequences of various options and select the option that affords the appropriate degree of precaution for the set of risks associated with the option. One way of complying with the precautionary principle is to adopt an adaptive management approach.” Telstra at [163] - [165]).

25. According to the Minister (and Rocla) the present case is one where, through the conditions of approval and the statement of commitments, an acceptable adaptive management approach of the type contemplated by Preston CJ can be put in place.

Contentions - in respect of the Aboriginal cultural heritage

41. The Court accepts that the Aboriginal cultural heritage contentions in these proceedings can, for purposes of its consideration, be “distilled” into six main issues as proposed by Rocla (and as slightly rephrased by us).

42. They are:

1. Whether the investigations undertaken to date have been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(a); Darkinjung Contention 34(b),(c),(d),(e),(f),(g),(h),(i),(j);

2. Whether the consultation with relevant stakeholders to date has been adequate to grant approval to the Project application: AWWP Contention 22(h);Darkinjung Contention 34(i);

3. Whether the assessment of the cultural significance of the Rocla land (and, in particular, the Stage 4 Extraction Area) has been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(b); Darkinjung Contention 33(a);

4. Whether the assessment of the impacts of the Project on the Aboriginal cultural heritage of the Rocla land has been adequate to allow a decision as to whether to grant approval to the Project application: AWWP Contention 22(e); Darkinjung Contention 33;

5. Whether the proposed mitigation measures appropriately ameliorate any impacts on Aboriginal cultural heritage: AWWP Contention 22 (d),(f) (g); Darkinjung Contention 33;

6. Whether the Project is in the public interest: Darkinjung Contention 35.

43. These contentions, however, collectively inform one critical factual question for us as the decision makers: namely, whether there is sufficient credible information upon which to assess the nature and extent of the Aboriginal cultural heritage, and the impacts of the project upon it, and to make a decision as to whether to consent to the development.

44. The Part 3A assessment process was explained by Mr Hutten, Counsel for the Minister, at the beginning of the hearing at the Gosford Courthouse. He spoke to the Minister’s written submission filed on 10 March 2015.

45. Fortuitously, the parties generally embrace the Minister’s summary of the relevant matters which must be considered under the assessment process mandated by Part 3A of the EPA Act. They are discussed below.

The Part 3A assessment process

46. Part 3A applies to development that has been declared to be a project to which Part 3A applies by – amongst other things – a State Environmental Planning Policy: s 75B(1)(a) (Part 3A Declaration).

47. The Minister’s approval is required (s 75D) for the carrying out of a project that is subject to a Part 3A Declaration; and that approval may be given upon application under s 75E. Such an application is to describe the project and must contain any matter required by the DG (s 75E(2)). Furthermore, the section informs that, upon such an application being made, the DG is to prepare environmental assessment requirements in consultation with the relevant public authorities (DGR): s 75D(2) and (4).

48. The proponent is to submit an environmental assessment (EA) to the Director General, who may accept it if he or she considers that it adequately addresses the DGRs; s 75H(1) and (2).

49. Once accepted, the Director General must make the EA publically available for at least 30 days, during which time any person may make written submissions: s 75H(3) and (4) for consideration.

50. The Director General may then require the proponent to submit a response to such submissions and offer a preferred project report that outlines proposed changes which may minimise environmental impacts and offer any revised statement of commitments: s 75H(6).

51. The Director General, subsequently, is required to prepare an environmental assessment report (DG’s report):s75(1). The DG’s report must include various matters set out in s 75(1).

The Power of the Minister to approve or refuse

52. The Minister’s power to approve the carrying out of the project is in s 75J(1) and is preconditioned on there being an application and a DG’s report: s 75J(1)(a) and (b).

53. The power extends to approval with modifications or subject to conditions –including compliance with a statement of commitments: s 75J(4) and (5).

54. Relevantly, the power to impose conditions under s 75J is wide (Ulan Coal Mines Ltd v Minister for Planning (2008)160LGERA 20 at [74], [75]). It is not confined in the manner specified for conditions of development consents granted under Part 4 of the EPA Act. However, a condition or conditions must fall within the class of conditions expressly or impliedly authorised under s 75J, and this involves a consideration of the construction of the section and its application to the circumstances of the particular project: Ulan Coal Mines Ltd v Minister for Planning and Moolarben Coal Mines Pty Ltd [2008] NSWLEC 185 (2008) 160 LGERA 20 at [50], [51]; Rivers SOS Inc v Minister of Planning [2009] NSWLEC 213 (2009) 178 LGERA 347 at [133]; Barrington-Gloucester-Stroud Preservation Alliance Inc.v Minister for Planning and Infrastructure [2012] NSWLEC 197 (2012) 194 LGERA 113 at [76].

55. It is important to appreciate that the Minister, in exercising the power under s 75J(1) – is required to consider:

1. The DG’s report and matters contained in that report, including the statement relating to compliance with environmental assessment requirements;

2. If the proponent is a public authority advice provided from the Minister having portfolio responsibility; and

3. Any findings or recommendations of the PAC following a review of the project: s 75J(2).

56. However, in this case only s 75J(1)(a) is relevant.

57. Accordingly, the Minister is bound to take into account in making a determination under s 75J those matters which s 75J(2) of the EPA Act expressly demands; and those matters raised – by implication from the subject matter, scope and purpose of the EPA Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 (1986)162 CLR 24 at [40].

58. The Minister submits that the starting point in identifying such matters is the Objects in s 5 of the EPA Act. The section provides:

5 Objects

The objects of this Act are:

(a)    to encourage:

(i)    the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment,

(ii)    the promotion and co-ordination of the orderly and economic use and development of land,

(iii)    the protection, provision and co-ordination of communication and utility services,

(iv)    the provision of land for public purposes,

(v)   the provision and co-ordination of community services and facilities, and

(vi)    the protection of the environment, including the protection and conservation of native animals and plants, including threatened species, populations and ecological communities, and their habitats, and

(vii)   ecologically sustainable development, and

(viii)    the provision and maintenance of affordable housing, and

(b)    to promote the sharing of the responsibility for environmental planning between the different levels of government in the State, and

(c)    to provide increased opportunity for public involvement and participation in environmental planning and assessment.

59. Relevantly, the objects of the Act in s 5 are not weighted in any particular order; such that some should necessarily be regarded as more important than others: Drake-Brockman v Minister for Planning [2007] NSWLEC 490 (2007) 158 LGERA 349 at [127] per Jagot J. Accordingly, the weighting to be given to any relevant consideration is, therefore, a matter for the Court, based on the evidence.

60. The Minister is also required to consider the public interest: Minister For Planning v Walker [2008] NSWCA 224 (2008) 161 LGERA 423; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 86 NSWLR 527;(2014086 NSWLR 527 at [295], [296] and, mandated by cl 8B of the Environmental Planning and Assessment Regulations: Walker at [39] - [40], and cl 2A of Schedule 6A.

61. The public interest naturally includes the community responses regarding the project for which approval is sought, including considerations of principles of ecologically sustainable development (including the precautionary principle); if relevant: Barrington-Gloucester-Stroud Preservation Alliance Inc. v Minister for Planning and Infrastructure [2012] NSWLEC 197 (2012) 194 LGERA 113 at [169] and Warkworth CA at [269].

62. However, in considering such responses, the Court must evaluate the reasonableness of the claimed perceptions of adverse effect on the amenity or the locality. Any evaluation of reasonableness involves the identification of the evidence that can be objectively assessed to determine if, in fact, it does support a finding of such an adverse impact. A fear or concern without rational justifiable foundation is not a matter which, by itself, can be considered as an amenity or social impact: Telstra at [192] – [195].

63. The matters that the Minister is required to take into account when exercising the power under s 75J are stated and affected by s 75J(2) and (3).

64. Subject to s 75J(3) Parts 4 and 5 of the EPA Act do not apply to an approved project (including the declaration of a project as a project to which this Part applies and any approval or other requirement under Part 3A for the project: s 75R(1)).

65. However, Part 3 of the EPA Act (planning instruments) and State Environmental Planning Policies (SEPPs) do apply to the declaration of a project as a Part 3A project and the carrying out of the project (although environmental planning policies (other than SEPPS) do not apply to or in respect of an approved project: s 75R(2) and (3)).

66. In exercising the approval power the Minister may take into account the provisions of any environmental planning instrument that would not apply to the project if approved because of s 75R: s 75J(3). On that basis, the Minister may take into account the provisions of any LEP, IDO or other instrument that would otherwise apply. Furthermore, because SEPPs apply to the declaration of a project as a Part 3A project and to the carrying out of the project, but not to the grant or refusal of the project approval, a provision in a SEPP requiring certain things to be taken into account is not binding on the Minister but may be considered by him or her under s 75J(3): Ironstone Community Action Group Inc v NSW Minister for Planning and Duralie Coal Pty Ltd [2011] NSWLEC 195 at [25] (Appendix B to the DG report; Exhibit R3 Vol 3 Tab 23 p 2167).

The right of appeal

67. As noted at the outset of this judgment the right of appeal that has been exercised in these appeals is the right of objector appeal in s 75L.

68. Relevantly, the parties accept that the preconditions in s 75L(1) have been satisfied and, as the project has not been the subject of a ‘review’ by the PAC, the Court has jurisdiction to deal with these applications. (The legislation draws a distinction between the PAC exercising its review function under s 23D(1) (b) of the EPA Act and the PAC acting as delegate of the Minister under s 23D(1)(a) and actually making a determination under s 75J).

69. In determining the appeals under s 75L(3) of the EPA Act, pursuant to s 39(2) of the LEC Act, the Court has all the functions and discretions available to the Minister (as outlined above) in determining project applications under s 75J of the EPA Act.

70. In short, on appeal the Court re-exercises the statutory power originally exercised by the Minister. The Court stands, metaphorically speaking, in his shoes and determines for itself, on the facts and law that exists at the time of the determination of the appeal, whether to approve or disprove the application: Bulga Milbrodale Progress Association Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347 at [7]-[8].

71. These appeals include a hearing de novo and fresh evidence, or evidence in addition to, or in substitution for the evidence given previously, in the context of the Minister’s decision on the appeal is permitted: s 39(3) of the LEC Act. The Court is required to determine the appeal on the issues raised and on the evidence given in the appeal: Bulga at [9].

72. However, the Court is not limited by the contentions advanced by the parties if it is of a mind to determine the proceedings by reference to matters beyond the issues identified by the parties; but procedural fairness requires that all parties be given notice of these additional matters and accorded the opportunity to be heard upon them: Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd (2013) NSWLEC 203 at [33] - [35].

Effect of repeal of Part 3A

73. The discretion that the Court is required to exercise is, as stated, conferred by s 75J, which was in Part 3A of the EPA Act.

74. Item 1.1 of the Schedule 1 of the Environmental Planning and Assessment Amendment (Part 3A Repeal) Act 2011 (Pt 3A Repeal Act), which was assented to on 27 June 2011, repealed the whole of Pt 3A, including s 75J on 1 October 2011.

75. However, due to the transitional provisions in Schedule 6A of the EPA Act, the repeal of Pt 3A and, s 75J in particular, does not affect the nature of the discretion the Court may exercise in this case because the Project application falls within the definition of “Transitional Part 3A Projects” (sub-cll 2(a) and (b) of Schedule 6A of the EPA Act) as the EA was submitted in November 2009, before Part 3A was repealed on 1 October 2011.

76. Therefore, Part 3A continues to apply.

Statements of how the statutory requirements are satisfied in this case

77. The Minister submits that the statutory requirements as outlined were satisfied in respect of this application as set out in the DG report: CB Vol 3, Tab 23 2114-2115. The key documents are:

1. TB Vol 1, Tab 3: DG Requirements

2. TB Vol 1, Tab 4: EA

3. TB Vol 3,Tab 21: PRR

4. TB Vol 3, Tab 23: DG’sReport

5. TB Vol 3, Tab 34: DG’s Recommended Conditions of Approval.

78. The PAC determined to approve the Project (TB Vol 3 Tab 35) on 23 December 2013. The conditions of approval as imposed by the PAC are at Vol 3 Tab 35.

Having outlined the power available to the Court, and the appeal process generally, it is appropriate to apply this statutory framework to the particular case at hand and outline the facts.

Facts

79. The uncontroversial facts are as follows:

The Project application

80. On or about 20 October 2006, Rocla lodged Major Project Application 06_0278 (the Project application) seeking the approval of the First Respondent to carry out a project to which Part 3A of the EPA Act applied.

81. The Project application described the project as "proposed southern extension of the Calga Sand Quarry - involving two extraction areas, on-site sand processing and silt placement, a new site entrance and progressive rehabilitation" (the Project).

82. In November 2012, Rocla submitted a "Preferred Project Report" (PPR), which was described as "effectively an updated version of the Project Description, i.e. Section 2 of the Environmental Assessment dated November 2009". As updated in the PPR, the Project consists of the following principal components:

1. continuation of sand extraction on Lot 2 DP 229889 (Stage 3 extraction areas), generally in a manner consistent with the current operation;

2. two new extraction areas, namely Stages 4 and 5, on Lots 1 & 2 DP 805358 to the south of Stage 3;

3. four proposed sand processing areas comprising 2 sequential locations for the existing 400,000 tpa plant (sites A and B) and 2 sequential locations for the proposed 600,000 tpa plant (sites C and D);

4. continued access via the existing site entrance (the northern entrance) and a new site entrance and access road (the proposed southern entrance) for activities within Stages 4 and 5; and

5. eventual relocation of the site administration area adjacent to the wash plant on the floor of Stage 1, and subsequent further relocation to Stage 4/1 (Site C), coinciding with the consolidation of processing operations within Stages 4 and 5.

The Project application before the Court

83. During the hearing the Project application was further amended by Rocla (Exhibit S27). The amendments were responsive to the lay and expert evidence and included such changes as: a retention of the ridge line near the ‘Women’s Site’; and an increase in the size of the buffer around the ‘Women’s Site’; a change to the location of the haul road from Peats Ridge; and the location of the track through the Popran National Park. The plan at [121] shows the amended application and the extent of the extract area.

84. Other changes are proposed and incorporated in the draft conditions and are discussed at a later stage.

The Site

85. The street address for the Rocla land is 151 Peats Ridge Road, Calga and the Rocla site consists of land described as Lot 2 DP 229889 and Lots 1 & 2 DP 805358.

86. Currently, sand extraction activities occur on Lot 2 DP 229889 under an approval granted by the First Respondent in 2005 (DA 94-4-2004). Lots 1 & 2 DP 805358 are largely undeveloped.

87. The Calga Sand Quarry is bounded by Popran National Park, Peats Ridge Road and some private properties, including the site owned by AWWP. The landscape and vegetation in the area incudes bushlands, national parks and agricultural land.

88. The Somersby Plateau and the Calga Sand Quarry site is the location of several threatened species of plants and animals.

Statutory controls

89. Until 12 February 2014, Rocla’s land was within 3 zones under the Gosford Interim Development Order No 122 (the IDO), as follows:

1. Zone 7(b) Conservation and Scenic Protection (Scenic Protection) - most of the Site;

2. Zone 7(a) Conservation and Scenic Protection (Conservation) – south-western part of the Site;

3. Zone 1(b) Rural (Highway Protection) - eastern part of the Site.

90. Under the IDO, development for the purpose of extractive industry was permissible with consent in zone 7(b), but prohibited in zones 7(a) and 1(b).

91. With the commencement of the Gosford Local Environmental Plan 2014 (the LEP) on 12 February 2014, the IDO ceased to apply to the Site.

92. Pursuant to the LEP, the Site is zoned RU2 Rural Landscape.

93. Development for the purpose of extractive industry is permissible with consent in the Zone RU2.

94. Other relevant environmental planning instruments include:

1. State Environmental Planning Policy (Major Development) 2005

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

3. State Environmental Planning Policy (Infrastructure) 2007

4. Sydney Regional Environmental Plan No 8 (Central Coast Plateau Areas)

5. Sydney Regional Environmental Plan No 9 - Extractive Industry (No 2 -1995) (SREP 9)

95. As pointed out by Counsel for AWWP, Lot 2 DP 229889 is included in Division 4 of Schedule 1 of SREP 9. However, Lots 1 & 2 DP 805358 are not. (The provisions of SREP 9 relevant to extractive industries are referred to at Rocla’s WSIR at p20.)

Relevant guidelines

96. The Project application also calls up a number of relevant guidelines.

97. The DG’s requirements include a consideration of the 2005 Draft Guidelines prepared pursuant to s 75F(1) of the EPA Act and the Burra Charter. All other relevant guidelines and policies are referred to where relevant later in this judgment.

Actions of the Respondents and determination

98. On or about 20 October 2006, the Rocla lodged the Project application, together with a Preliminary Project Outline (PPO) and EA.

99. On or about 4 March 2009, the DG issued DG's Requirements pursuant to s 75F of the EPA Act.

100. The DG's Requirements provided that the EA to be prepared by the Rocla must include the following "a detailed assessment of the key issues which includes: a description of the existing environment; and an assessment of the potential impacts of the project".

101. One of the key issues specified in the DG's Requirements was "Heritage - both Aboriginal and non-Aboriginal".

102. In November 2009, Rocla lodged an EA.

103. From 27 November 2009 to 19 February 2010, the Department of Planning & Infrastructure (the Department) exhibited the EA. The Department received 2,827 submissions, including 7 from government authorities, and 7 from special interest groups.

104. Under Ministerial delegation dated 14 September 2011, the Project application was referred to the Planning Assessment Commission (PAC) for determination.

105. In November 2012, Rocla provided its Formal Response to Submissions (FRS) and PPR, including further archaeological and anthropological assessment reports.

106. From 16 November 2012 to 25 January 2013, the Department exhibited the Response to Submissions (RTS) and PPR, and received 19 submissions, including 5 from government authorities, 6 from special interest groups and 8 from local residents.

107. On or about 23 January 2013, Darkinjung made a submission in the nature of a formal objection to the Project application.

108. In September 2013, the Director-General's Assessment Report (DGAR) pursuant to s 75I of the EPA Act assessed the Project application, and recommended that the PAC approve the Project application subject to conditions.

109. On 5 November 2013, the female member of the PAC (Ms Jan Murrell) and a planner working on the Project met on the Site with Aboriginal women and elders to inspect places of Aboriginal cultural heritage significance, particularly the ‘Women’s Site’ # 45-3-0119.

110. On 18 November 2013, the PAC visited the Site and held a meeting with Rocla, followed by a meeting with Gosford City Council, and then a scheduled public meeting at which 32 people presented. The key issues raised at the public meeting included impacts on Aboriginal heritage and culture, in particular the erosion of the landscape context for significant Aboriginal heritage sites.

111. On 23 December 2013, the PAC determined that the Project should proceed subject to conditions, including conditions to the following effect:

1. granting approval for Stages 3 and 4 only, as described in the EA and shown conceptually on the plans in Appendix 1 (condition 7);

2. requiring Rocla to "ensure that the Project does not cause any direct or indirect impact on the identified Aboriginal heritage sites located outside the approved disturbance area for the project" (condition 21);

3. effectively approving the disturbance of one identified Aboriginal heritage site, described as "Site 7 - an artefact scatter", and all other Aboriginal sites and Aboriginal objects within the project disturbance area;

4. requiring a minimum 40-metre vegetation buffer to be kept around "heritage item # 43-3-0119" (condition 22);

5. requiring Rocla to prepare and implement an Aboriginal Cultural Heritage Management Plan for the Project to the satisfaction of the DG (condition 23), which plan must include "a detailed archaeological salvage program for Aboriginal sites/objects within the project disturbance area" (condition 23(d)).

Rocla’s assessment of Aboriginal heritage

112. During the course of the assessment of the Project application, Rocla obtained two archaeological assessment reports and one anthropological assessment report:

1. Aboriginal Heritage Assessment dated July 2009 prepared by Archaeological Surveys & Reports Pty Ltd (the 2009 Appleton report), being an archaeological assessment report;

2. Aboriginal Cultural Heritage Assessment dated 19 December 2011 prepared by UniQuest Pty Ltd (the 2011 Ross report), being the anthropological assessment report; and

3. Supplementary Aboriginal Heritage Report dated July 2012 prepared by Forward Planning Heritage Solutions (the 2012 Atkinson report), being supplementary archaeological assessment report.

113. The 2009 Appleton report reviewed surveys which were undertaken over several days in December 2005 (the December 2005 survey) and October 2006 (the October 2006 survey). According to the 2009 Appleton report:

1. the survey strategy for the December 2005 Survey was to attempt "to investigate any area on the Site above the 150 metre AHD contour to which there was access". This was because:

1. it was assumed that disturbance associated with the Project would not occur at or below this elevation; and

2. vegetation below this elevation "was so dense as to make archaeological investigation totally ineffective" (ref 4-28);

2. within the survey area (i.e. above the 150 metre AHD contour), the understorey and ground cover was so dense in many places that it was only possible to perform a sample survey, while in other places the vegetation was "totally impenetrable" (ref 4-29), and an "insurmountable obstacle to surveying" (ref 4-31);

3. within the survey area (i.e. above the 150 metre AHD contour), "vegetation was extremely dense wherever there was soil or weathering deposits, and many of the outcropping rock surfaces were concealed beneath an accumulation of leaf and twig detritus" (ref 4-31);

4. in summary, the results of the archaeological investigations were such that "although the survey occurred in an area in which there was a potential for sites to occur, the limitations to undertaking an effective survey imposed by the vegetation meant that there was only a very low potential for the survey area to contain observable archaeological material" (ref 4-42);

5. there remained the possibility of "other engravings and axe-grinding grooves concealed beneath detritus ... yet to be recorded" (ref 4-43);

6. there was a potential for the existence of buried archaeological material in the place referred to as "Popran Art1"(ref 4-42), a shelter with art and intact occupation deposits. The latter were considered to "have potential to contain datable material, and evidence of particular site activities, and information useful in providing a greater understanding of intra-site spatial activity, knapping techniques, subsistence strategies, diets, as well as be a potential repository of cultural material" (ref 4-45);

7. as a consequence of the investigation, the survey area was believed to contain five sites of Indigenous cultural significance, namely three previously recorded sites (a group of axe grinding grooves and two rock engravings), and two new sites, being a shelter with art and occupation deposits (site Popran Art1) and a stone arrangement (Calga SA1) (ref 4-7, 10);

8. there was a probable direct association between the stone arrangement (Calga SA1) and the engraving site # 45-3-0119 (also recorded as # 45-3-2195) (ref 4-39);

9. of the approximately 1400 sites listed in the AHIMS database for the Mangrove Mountain/Calga area, there was only one other stone arrangement (ref 4-39);

Crystalline silica

415. The Director General notes, "Many public submissions raised serious concerns regarding the potential for silicosis-related health impacts ...”(Exhibit R3 Vol 3 Tab 23 p 2149 DG EAR p 54).

416. The Director General concluded that, "The assessment indicates that the project would comfortably comply with the applicable criteria at all sensitive receiver locations surrounding the quarry ...” (Exhibit R3 Vol 3 Tab 23 p 2149 DG EAR p 54) and, "Based on the finding of the air quality assessment, the Department is satisfied that the concentrations of airborne crystalline silica in the air would remain well below internationally accepted health-based criteria in the areas surrounding the quarry" (Exhibit R3 Vol 3 Tab 23 p 2150 DG EAR p 55).

417. This conclusion is supported by Mr Roddis (Rocla) and Mr Bridge (AWWP), who agree

"Lifetime risk of silicosis amongst the general population is very low ... We agree that 3pg/m3 annual average (as PM4) is an adequate demonstration of protection against adverse health effects associated with exposure to respirable crystalline silica (RCS). Performance against the 3pg/m3 annual average RCS criterion can be adequately demonstrated through atmospheric dispersion modelling. The predictive modelling indicates that the annual average RCS criterion is unlikely to be exceeded at nearby sensitive receptors." (Exhibit S26 p 7 Air Quality JR p 7).

418. As noted above, conditions 11 to 13 in Schedule 3 of the PAC conditions of approval (conditions 14 to 16 in Schedule 3 of the AWWP/Rocla Agreed Conditions) require Rocla to monitor, analyse and address the compliance of the project against air quality criteria, including 3ug/m3 annual average for crystalline silica.

419. In Rocla's submission, the evidence before the Court confirms that the project should not be refused on the grounds of air quality impacts. Further, the conditions contained in the AWWP/Rocla Agreed Conditions are appropriate to ensure that Rocla complies with the relevant air quality criteria.

Visual amenity

420. AWWP withdrew their contention in respect of visual amenity as a result of agreement as to appropriate conditions of approval.

421. The views of Stage 4 and the previously proposed Stage 5 are generally limited to localised areas within Walkabout Park and Glenworth Valley, with distant views also available from landholdings further to the west of Glenworth Valley (Exhibit R3 Vol 3 Tab 23 p 2158 DG EAR p 63).

422. With the removal of Stage 5, the visual impacts of the proposed project are drastically reduced.

423. The Director General's report notes:

"With [the avoidance and mitigation measures proposed by Rocla, the Department is satisfied that any residual visual and/or night lighting impacts from Peats Ridge Road and residences to the east would be minor. Any impacts on views from Glenworth Valley and landholdings further to the west would also be relatively minor, given the distance to these receivers and intervening vegetation, which would include the off-site offset area on the Glenworth Valley property” (Exhibit R3 Vol 3 Tab 23 p 2158 DG EAR p 3).

424. The Department's primary concern, in terms of visual amenity, was that visual impacts on parts of the Walkabout Park property are harder to mitigate. The Department therefore recommended conditions restricting the quarry expansion to Stage 4 only (Exhibit R3 Vol 3 Tab 23 p 2159 DG EAR p 64).

425. The Court had the opportunity to assess the likely view impact from numerous locations within the Walkabout Park property. Evidence was given on site by Dr Lamb for Rocla and Mr Storer for AWWP.

426. The opinions expressed by Mr Storer were falsely premised on ignoring the dense screening which will continue to be provided by vegetation which will not be disturbed by the Project. Dr Lamb's opinion should be preferred and is confirmed by the on-site view.

427. The AWWP/Rocla Agreed Conditions, upon advice from the parties' visual amenity experts, go even further to limit the visual impacts to AWWP of the quarry than the Department's recommendation. AWWP and Rocla have agreed to conditions with the following effect:

1. Vegetation in the previously proposed Stage 5 will not be disturbed (condition 7 in Schedule 2 of the AWWP/Rocla Agreed Conditions);

2. "Screening vegetation" will be retained along a portion of the ridgeline between Stage 3 and Stage 4 (condition 45 in Schedule 3 of the AWWP/Rocla Agreed Conditions).

3. Overburden Storage (Stockpile or Acoustic Bund) will be contained within the proposed limit of extraction (rather than outside as approved by the PAC) to ensure that vegetation along the eastern and southern boundaries of Stage 4 will not be disturbed (Figure 2.5 (Amended on 29 January 2015)); and

4. Extraction areas will be progressively rehabilitated as soon as reasonably practicable after completion of extraction of each cell (condition 38 in Schedule 3 of the AWWP/Rocla Agreed Conditions).

428. In Rocla's submission, the Court would find that the visual impacts of the project can be adequately avoided and/or mitigated by imposing the AWWP/Rocla Agreed Conditions and that no unacceptable visual impacts will arise for AWWP or surrounding residents if the proposed Project is approved subject to those conditions.

Traffic and transport

429. AWWP withdrew their contention with respect to traffic and transport when AWWP filed their Amended Statement of Facts and Contentions on 22 May 2014.

430. No evidence was led in these proceedings in relation to traffic and transport, except for the evidence from the acoustic experts discussed at paragraph 5.3(a)(i) above. In this respect, the acoustic experts agreed that "the issue of road traffic noise as a result of the extension was no longer an issue." (Exhibit S25 p 5 Noise JR p 5).

431. Other concerns raised in public submissions include the volume of trucks associated with the Project and traffic congestion, traffic safety concerns, conflicts with cyclists and truck-driver behaviour. In relation to these issues, the DG's report notes the following:

• "The site enjoys very good access to the arterial road network, and that the modelling undertaken in the traffic assessment indicates that the local road network would continue to operate at a very good level of service with the project." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66)

• "The assessment indicates the project would comply with applicable road design and safety standards, subject to the appropriate design and construction of the southern access intersection." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66). In this regard we note that condition 32(a) in Schedule 3 of the PAC conditions of approval (condition 42(a) in Schedule 3 of the AWWP/Rocla Agreed Conditions) requires Rocla to construct the southern access intersection to the satisfaction of the applicable roads authority.

• "With regard to potential conflicts with cyclists on Peats Ridge Road, the Department is satisfied that the potential for conflict is unlikely to be any more significant than in other areas of the NSW road network, and that the road design is consistent with applicable road design standards." (Exhibit R3 Vol 3 Tab 23 p 2161 DG EAR p 66)

• "With regard to driver behaviour, Rocla has an existing driver code of conduct which stipulates safe driver practices at all times, and has committed to maintaining this code of conduct for the expansion project. The Department is satisfied with this commitment ..." (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67)

432. The Court would, in Rocla's submission, find that the traffic and transport issues raised in submissions have been considered and, where necessary, adequately addressed in the AWWP/Rocla Agreed Conditions.

Socio-economics

433. AWWP withdrew their contention in respect of socio-economics as a result of agreement as to appropriate conditions of approval.

434. The DG's report notes "the primary socio-economic benefit associated with the project is the shoring-up of affordable regional sand supplies for the Sydney and Central Coast construction industries" (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67). In this respect, it is important to note the following:

1. the Penrith Lakes Scheme will cease between 2014-2016 (Exhibit S18 Vol 2 Tab 49 p 1585);

2. the supply at Kurnell is likely to cease production by 2023 (Exhibit S18 Vol 2 Tab 49 p 1585);

3. there will be a large shortfall in supply of the fine-to-medium-grained sand if production at Kurnell ceases (Exhibit S18 Vol 2 Tab 47 p 1517);

4. upon the cessation of the Penrith Lakes Scheme around 2.2 million tonnes of medium-to-coarse-grained sand will need to be sourced from elsewhere (Exhibit S18 Vol 2 Tab 47 p 1517); and

5. while there are large identified resources of construction sand at Richmond Lowlands, Somersby Plateau, Maroota and offshore which have the potential to become long-term suppliers of construction sand, there are environmental and societal constraints with these sites (Exhibit S18 Vol 2 Tab 47 p 1517).

435. Rocla's existing quarry has been operating for many years and enjoys very good access to the arterial road network including Peats Ridge Road, the Calga Interchange and the F3 Freeway. Given that transport is a major component of the cost of sand to the construction industry, this strategic location brings significant economic benefits by way of reduced transport time, costs and externalities.

436. The proposed Project will also provide benefits to the community in terms of the generation or continuation of 16 direct jobs and the benefits associated with additional capital investment in the quarry (Exhibit R3 Vol 3 Tab 23 p 2162 DG EAR p 67).

437. It is also important to note the primacy given to extractive industries in the planning instruments (SREP 8, SREP 9 and the Mining SEPP), particularly in relation to the site of the proposed Project.

438. While the benefits of the proposed Project will accrue largely to the wider society, any socio-economic costs have the potential to be borne more at a local level. However, in this respect, the DG's report notes the following:

• "The quarry expansion would be buffered from Glenworth Valley's tourist facilities by the off-site offset area and the quarry setbacks to the western boundary, and that any residual impacts on Glenworth Valley's tourist facilities would be minor and would not adversely affect tourist numbers or satisfaction levels.” (Exhibit R3 Vol 3 Tab 23 p 2163 DG EAR p 68)

• "With regard to socio-economic impacts on the wider Calga area, the Department is satisfied that the environmental assessment indicates that the quarry expansion would not result in any significant impacts on the wider community." (Exhibit R3 Vol 3 Tab 23 p 2164 DG EAR p 69)

439. As noted above, AWWP withdrew their contention in respect of socio-economics as a result of agreement as to appropriate conditions of approval. In Rocla's submission, therefore, the Court would be satisfied that the proposed Project will not have unacceptable adverse socio-economic impacts on AWWP.

440. Further, the parties' economic experts agree that economic benefits will be maximised if appropriate mitigations are put in place so that the two uses can exist side by side, thereby maximising economic benefits. In Rocla's submission, the Court would find that the AWWP/Rocla Agreed Conditions allow the two uses (AWWP's wildlife park and Rocla's quarry) (Exhibit S22 para 49 Economics JR para 49).

Objector evidence

441. The Court would, in Rocla's submission, give the evidence of objectors appropriate weight. As noted by Preston CJ in Bulga Milbrodale ProgressAssociation Inc v Minister for Planning and Infrastructure and Warkworth Mining Limited [2013] NSWLEC 48; (2013) 194 LGERA 347:

"objector evidence is relevant to a consideration of impacts on amenity and the public interest more generally where it is more than an expression of subjective fear or concern, and is based in specific, concrete, likely effects of the proposed development: Telstra v Hornsby Shire Council at [193]-[195]."

442. The fact that AWWP has chosen to withdraw a number of contentions should not, in Rocla's submission, add any further weight to the evidence of other objectors.

443. The key issues raised in written and oral submissions (Exhibit R3 Vol 3 Tab 23 p 2122 DG EAR p 27) were related to the Project's direct and cumulative impacts on:

1. Water resources - impacts to the groundwater & licensing issues (Ian Sutton at T288 to T291, Margaret Pontifex at T298, Simone Glover at T300, Graeme Ausburn at T667 to T670, Margaret Dupille at T671, Justine Jude Suthers at T680, Paul Robert Burton at T683 to T684, Barton Lawler at T687 to T688, Kate Da Costa at T695)

2. Noise - particularly in relation to truck noise (Angela Hellyer at T675 to T678).

3. Dust - including health-related impacts associated with crystalline silica (Deirdre Faith Jinks at T286, Simone Glover at T300, Justine Jude Suthers at T680);

4. Biodiversity - impacts on threatened species and to endangered ecological communities (Deirdre Faith Jinks at T287, Jake Cassar at T292 to T294, Margaret Pontifex at T298, Simone Glover atT300, Margaret Dupile at T671 to T674, Barton Lawler at T687);

5. Visual amenity (Barton Lawler at T688);

6. Traffic (Deirdre Faith Jinks at T286, Simone Glover at T300, Angela Hellyer at T675 to T678, Justine Jude Suthers at T679);

7. Socio-economics - potential impacts on surrounding regionally significant commercial and tourism-related land users (Jake Cassar at T292 to T294, Barton Lawler at T686 to T688).

444. Rocla contends that the issues raised by the objectors often amounted to an expression of fear or concern over the proposed Project and the objectors' submissions are often not supported by specific concrete evidence.

445. The Court would find, in Rocla's submission, that the expert evidence before the Court provides a scientific answer to the issues raised by the objectors:

1. Water resources - as set out in section 3 of Rocla’s WCS 2 March 2015, the experts agree that groundwater modelling prepared by Dr Merrick is appropriate and that modelling predicts that there will be no unacceptable impacts upon the local or regional aquifer as a result of the proposed Project. Objector concerns in relation to licensing are answered by the NSW Office of Water and Mr Dundon;

2. Noise - as set out in section 5 of Rocla’s WCS, the experts agree that road traffic noise as a result of the proposed Project is not an issue. The issues of noise from quarry operations is, in Rocla's submission, adequately dealt with in the AWWP/Rocla Agreed Conditions;

3. Dust - as set out in section 6 of Rocla’ WCS, the experts agree that the annual average respirable crystalline silica criterion is unlikely to be exceeded at nearby sensitive receptors. In any event, the air quality conditions contained in the AWWP/Rocla Agreed Conditions require Rocla to implement an Air Quality Management Plan that includes comprehensive monitoring and evaluation of the project's compliance with air quality criteria;

4. Biodiversity - as set out in section 4 Rocla’s WCS, the evidence before the Court suggests that the avoidance and mitigation measures proposed by Rocla, as well as the Biodiversity Offset Strategy, are appropriate and adequately compensate for any damage to flora or fauna as a result of the proposed project. Further, as set out in section 3.6 and 4.7 of these submissions, the evidence before the Court suggests that the impact of the proposed Project on GDEs is minimal and would not be unacceptable. In any event, the AWWP/Rocla Agreed Conditions appropriately address concerns regarding GDEs (for example, the requirement to install and monitor shallow-nested piezometers on the north and south of E54 Sandstone Hanging Swamp along Creek B (condition 25(b)(iii) of the AWWP/Rocla Agreed Conditions);

5. Visual amenity - as set out in section 7 of Rocla’s WCS, the evidence before the Court suggests that any visual impacts from Peats Ridge Road, residences to the east and Glenworth Valley (including night lighting impacts) would be minor. The AWWP/Rocla Agreed Conditions further minimise the visual impacts from the proposed Project by ensuring minimal disturbance to vegetation outside of the Stage 4 extraction area and the retention of screening vegetation along the ridge line between Stage 3 and Stage 4;

6. Traffic - as set out in section 8 of Rocla’s WCS, the evidence before the Court suggests that traffic issues have been adequately considered, are unlikely to be significant, and have been adequately accounted for in the AWWP/Rocla Agreed Conditions;

7. Socio-economics - as set out in section 9 of Rocla’s WCS, the evidence before the Court suggests that the socio-economic benefits of the proposed project far outweigh any local socio-economic costs. The fact that AWWP, the nearest commercial neighbour to the proposed Project, have withdrawn their contentions in relation to socio-economic impacts would, in Rocla's submission, add weight to this evidence.

446. The Court would, in Rocla's submission, find that the AWWP/Rocla Agreed Conditions are appropriate conditions to impose if the Court is minded to approve the proposed Project.

Findings – non heritage issues

447. For the reasons outlined, the Court is satisfied that the concerns raised by the lay witnesses in respect of non-heritage issues are satisfactorily addressed by the evidence of the experts and the agreed AWWP/Rocla conditions (Exhibit S42) (with some amendment and refinement to address the concerns raised by the Minister).

448. However, given our final position, it is not necessary to determine the final terms of these conditions at this time.

Summary conclusions

449. As stated at [44] the critical question for determination in these appeals is whether there is sufficient, credible information upon which to assess the impacts of the Project and make a decision.

450. We have decided that the answer to the question at this time must be “no”.

451. The central reason is because the outcomes of the investigations, assessment and consultation process proposed by Rocla are not known to the Court and, thereby, they cannot inform the Court’s decision to approve the Project and provide us with any satisfaction that the - as yet unknown - mitigation measures will satisfactorily protect against unknown impacts on Aboriginal cultural heritage.

452. In coming to that conclusion we must reject Rocla’s submission that the only scientific uncertainty or ‘unknown’ is the nature of the items and/or the sites that are likely to be discovered by the investigations proposed by the CMP, and the proposition that the precautionary principle is not triggered on the facts.

453. The Dallas CMP proposed by Rocla addresses the discovery of any new item or site of Aborigial significance by a methodology mandating ‘stop, notify, record, assess threats and manage’ approach. Having regard to the state of the evidence before us, and for reasons earlier stated, such an approach does not enable us to uderstand the damage or harm that would result from such a discovery. It does not, as Rocla submits, mean that “there will be no damage in a way not currently understood”.

454. Darkinjung in our assessment has not misapplied the precautionary principle as asserted by the Minister (Minister’s written submissions at [60] - [61], [76] - [78]).

455. Darkinjung’s submission at [135] that “having regard to the inadequacy of the surveys, consistently with the precautionary principle, the Court should conclude that there is likely to be further Aboriginal cultural heritage that is likely to be destroyed by the Project” is not based on ‘mere conjecture’ on our understanding of the evidence.

456. In reaching that conclusion we accept the Minister’s analysis of the precautionary principle that, firstly, there must be a threat of serious or irreversible damage; and, secondly, there must be scientific uncertainty as to the nature and scope of the environmental damage: Telstra at [128] - [140]. Furthermore, the satisfaction of both these conditions means that the decision maker must assume (subject to proof otherwise by the contradictor) that the threat of serious and irreversible environmental damage is no longer uncertain but a reality. Further, we appreciate that this does not mean that, in satisfying the first condition, the existence of the threat can be assumed. As observed inTelstra at [159]:

“… rationality dictates that the precautionary principle and any preventative measures cannot be based on a purely hypothetical approach to the risk, founded on mere conjecture which has not been scientifically verified. Rather, a preventative approach may be taken only if the risk, although the reality and extent of the risk have not been fully demonstrated by conclusive scientific evidence appears nevertheless to be adequately backed up by scientific data available at the time.”

457. But we cannot accept the Minister’s position, on the facts as presently understood and discussed in the evidence, that the impacts on Aboriginal heritage will not be as significant as the Applicants’ contend. For the reasons stated we are of the opinion that there is sufficient evidence - backed up by the available scientific data - to support a finding that the Applicants’ concerns are much more than ‘mere conjecture’ (Minister’s closing submissions p18 at [57]).

458. While we accept that it is impossible to be completely certain about the extent of the threats of environmental damage or how much scientific uncertainty must exist before the second condition precedent of the precautionary principle is triggered, the process of analysis, as discussed by the Court in Telstra at [140], includes an assessment of the sufficiency of the evidence as to whether there might be serious or irreversible environmental harm caused by the Project.

459. In the absence of sufficient information we must assume the worst and find that there is a threat of serious and irreversible environmental harm. Therefore, it follows that there is a shift in the evidentiary burden and that Rocla must demonstrate that the threat of serious or irreversible damage does not exist or is negligible. On the evidence, the Court cannot be so satisfied. In the circumstances the preference must be to prevent environmental damage.

460. While this factor alone does not have overriding weight compared to other relevant factors such as the non-heritage issues, social and economic factors, in this case prudence dictates that until all the consequences of the decision are known through the investigations there should be no approval of the Project.

461. This is not a case for “step wise” or an adaptive management approach whereby uncertainties are acknowledged and the area affected by the Project is expanded as the extent of the uncertainty is reduced: Telstra at [163]. As the site will be stripped incrementally in segments under the approval, if it emerges that the Aboriginal landscape extends into that area it will be too late. For the reasons stated, the proposed conditions and CMP do not offer an appropriate monitoring regime in this instance. The investigation proposed by McDonald and others are not prohibitive in terms of time or financial expense given the potential threat to the destruction of the Aboriginal cultural heritage and in our assessment are proportionate and practical: s 6(2)(a)(ii).

462. Put simply, we do not accept, as the Respondents contend, that the risk of finding further sites is significantly addressed by the proposed mitigation and management measures outlined in the proposed conditions of consent including:

• a site buffer,

• reasonable access for Aboriginal women to the ‘Women’s Site’;

• a Cultural Heritage Management Plan which incorporates ongoing consultation with Aboriginal stakeholders;

• the carrying out of rock-platform clearing, night-recording and subsurface testing, and formal recording of the sites;

• a Statement of Significance;

• a protocol for dealing with the discovery of new sites; and

• a protocol for dealing with the discovery of further Aboriginal sites which includes a requirement to obtain endorsement that further mining may proceed from the Minister.

463. The Minister’s draft modified conditions (Annexure A of the Minister’s closing submissions) or Rocla’s version of the draft conditions do not satisfactorily address the Aboriginal cultural heritage issues raised by the evidence.

464. In inviting the Court to assess the likely effect of the proposed mitigation and management measures and then the residual impacts on Aboriginal heritage against the benefits of the Project (Exhibit R3 Vol3 Tab 23 DG’s report p 2162), including a consideration that the sand resource on the site is of regional significance, the financial and social benefits of the project, the public interest, the owner’s needs, resources, external constraints and physical condition, (Exhibit S18 Tab 10 Burra Charter p 130 Article 6.3) the balance in our risk-weighted assessment does not weigh in favour of an approval of the Project at this time.

465. Principles of ESD (including the precautionary principle) apply to both the tangible and intangible values of Aboriginal cultural heritage: Anderson & Anor v Director-General of the Department of Environment & Conservation & Anor (2006) 144 LGERA 43 per Pain J.

466. Rocla’s expert evidence and draft conditions focus upon investigations of the tangible values such as test excavation, removal of detritus from rock platforms and archaeological salvage as proposed within the CMP – in particular the one known site that would be impacted by the quarry extension. This is the open scatter of stone artefacts on the sand body between and below the sandstone foundations along the northern ridge and upper reaches of Cabbage Tree Creek and also the Owen sites [2014 table1].

467. Dallas and Smith discount the likelihood of finding another site in the order of significance of the ‘Women’s Site’ or the ‘Stone Arrangement’ within Stage 4 - which are constraints to the development of Stage 4 (Exhibit S12 p 53). Further, they dismiss the scientific and historical evidence given by Ross, Hodgetts and McDonald (and others) which suggests that there is potential for new sites or items within the Stage 4 area which may heighten the significance of discovered sites such as the ‘Women’s Site’ and better inform the extent of the cultural landscape. Instead, based on the current surveys, they endorse the protection of tangible values through appropriate fencing and the imposition of a buffer (together with the management safeguards for these sites prescribed in the CMP).

468. With respect to the undisputed significance of the intangible values of these sites, both Dallas and Smith support the proposition that the intangible components can be managed for preservation by interpretation and other means, specified by local Aboriginal people and consistent with the Burra Charter.

469. Unfortunately, their evidence does not address, to our satisfaction, what should be done if new items or sites are located within the Stage 4 area which heighten the significance of the ‘Women’s Site’ and/or the stone scatter and it emerges that the Aboriginal cultural landscape extends into that project area. That prospect is more than conjecture on the current available scientific evidence before us.

470. Darkinjung, who are relevant local knowledge holders under the Guidelines and the Burra Charter, has lodged an application for an Aboriginal Place Nomination which seeks to preserve the development area and beyond. Any criticism of the timing and purpose of the application concurrent with Rocla’s application is without evidentiary foundation. For that reason Darkinjung’s application, which is supplemented by the evidence of the Aboriginal witnesses, is relevant to our consideration of this Project application.

471. Each of the experts agree that the accepted methodology - mandated by the relevant guidelines and the Burra Charter – requires an assessment of the archaeological, historically/social and ethnological values of discovered items and sites to inform the Statement of Significance before land management decisions are taken.

472. Yet the Respondents advance the opposite course; the issue of development approval before the completion of the investigations - before a complete understanding of the significance of the development area.

473. While we accept that there must be a reasonable limit to investigations and that the Court has the power to issue development consent with a CMP that contemplates further investigations, we are of the opinion on the evidence that such a course is unsafe. Given the current state of knowledge and the accepted rarity of the recently rediscovered ‘Women’s Site’, we are of the opinion that deviation from the accepted industry standard is unwise. We accept the Applicants’ submissions based on the evidence of McDonald, Hodgetts and others that the issue of project approval for the expansion of the Stage 4 quarry is premature. Although the bush terrain is difficult to navigate, the experts have agreed upon the necessary investigations, including modelling, which can be undertaken without destroying the land to better inform the Statement of Significance, without causing excessive delay or disproportionate expense.

474. In our assessment these investigations need to be completed before considering the grant of consent to this development.

475. Rocla’s submission that the existing Aboriginal intangible/spiritual cultural significance of the land is not under threat of serious or irreversible damage by the development of the quarry, because that threat is addressed by the mitigation and management measures proposed by the CMP and other conditions of consent, is too simplistic given the current state of knowledge about the development site and the area around it.

476. None of the Aboriginal witnesses (despite being asked) were willing, or in fact able, to provide an appropriate gender buffer, or site buffer, including Margaret Katherine who deferred to the local landholders in this regard. They consistently maintained that they were unable to determine the distance of a buffer until the extent of the relevant cultural landscape is better understood. It was suggested that they were being obstructive. However, their response is supported by the fact that all of the experts agreed that such a gender buffer/site buffer will be better understood after the archaeological pit testing and other investigations are completed and analysed.

Amber light

477. Rocla did not ask for an adjournment to allow the recommended investigations to be pursued. After a protracted hearing process it was well that they did not make such an application, having been on notice of the Applicants’ views about the inadequacy of investigations for many months. Instead, Rocla asked the Court to adopt an ‘amber light approach’, and issue an in-principle approval of the development subject to the completion of the further investigations and the CMP. An ‘amber light’ approach is discussed by the Court in Champions Quarry Pty Limited V Lismore Council [2011] NSWLEC 1124 per Moore SC and Sullivan AC.

478. However, as Darkinjung summits, such an approach is dependent upon the Court forming the view that on the merits the development is capable of being approved but with amendment or changes. As is apparent from our reasons, we have not formed a concluded view that the development is capable of being approved with amendments. A number of investigations need to be completed before an answer to that question can be given. The Court is not a forum for discussing applications or alternatives. While some amendments are acceptable, in this case we are not satisfied that sufficient information has been provided to allow us to properly assess the application.

479. Moreover, we are concerned as to what would happen if this course was adopted and Rocla located a site which heightened the significance of the ‘Women’s Site’ halfway through the investigations in the Stage 4 area. The consequence would leave the cultural landscape irretrievably damaged. As Darkinjung and AWWP submit, a development consent is an enduring document that runs with the land.

480. Rocla submitted, in the event of an approval, that it would undertake to stop work if it were to emerge through the CMP investigations that the extension of the cultural landscape into the Stage 4 area precluded mining. This course is, for obvious reasons, problematic; it may well be too late and such an undertaking raises issues of enforceability, particularly on future landowners.

481. An ‘amber light’ approach in this case is not feasible. Approving the Project without having first obtained a full understanding of the heritage values of the Project site would be contrary to the precautionary principle: Warkworth per Preston CJ at [59] and common sense on the evidence as we see it.

482. In the present appeals the Minister submits, if the principle is engaged, that the conditions proposed represent a proportionate response or appropriate precautionary measures to allow the Court to approve the expansion of the sand quarry. In short, they are within the objects and purposes of the Act, and fall within the class of conditions expressly or impliedly authorised under s 75J.

483. The issue which the Court must resolve is whether the proposed conditions are able to address by adaptive management the threat which is the impact on Aboriginal cultural heritage, both to the ‘Women’s Site’ discovered, and any other site undiscovered, within Stage 4 and the relevant cultural landscape.

484. However, such an assessment should only be made when the extent of the threat is as far as possible understood. The available scientific, historical, anthropological and ethnographical evidence in these proceedings supports a conclusion that the threat of environmental damage to the Aboriginal cultural heritage and its extent has not been fully investigated. At the completion of those investigations the extent of any threat will be better understood. In those circumstances we must assume the worst and find that there is a threat of serious and irreversible environmental harm. Rocla has not demonstrated that the threat of serious and irreversible damage does not exist or is negligible if the proposed mitigation measures are followed.

485. In the ultimate, we are satisfied that the non-cultural heritage impacts associated with the present application relating to such matters as visual amenity, noise, acoustics, vibration, water, traffic and ecology are capable of being resolved by conditions of consent and, together with the economic benefits of this regional resource, weighs positively in favour of the project. However, having regard to all of the weighted considerations, including the impact on Aboriginal cultural heritage and the public interest, it is our considered opinion that the the Project application must be refused at this time.

Orders

486. Accordingly, the Court orders:

1. The appeals are upheld.

2. The amended application for the Calga Sand Quarry Project (06 -0278) is refused.

3. The exhibits are returned.

Susan Dixon                  Sharon Sullivan

Commissioner                  Acting Commissioner

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Pursuant to UCPR 36.17, amendment made to correct a typographical error in Order 1.

Typographical errors corrected on the coversheet and in paragraph 4.

Decision last updated: 18 November 2015