Figtree Hill v Cleary Bros

[2006] NSWLEC 9

Land and Environment Court

of New South Wales

CITATION:

Figtree Hill v Cleary Bros and others [2006] NSWLEC 9

PARTIES:

APPLICANT
Figtree Hill Pty Limited

FIRST RESPONDENT
Cleary Bros (Bombo) Pty Limited

SECOND RESPONDENT
Minister for Infrastructure and Planning

FILE NUMBER(S):

10639 of 2005

CORAM:

Hussey C - Brown C

KEY ISSUES:

Development Application :- third party appeal - designated development - State significant development - extension to existing hard rock quarry - use of land that prohibits quarry - impact of fly rock - impact of vibration on cattle - amendment to conditions

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Shellharbour Rural Local Environmental Plan 2004
State Environmental Planning Policy (Major Projects) 2005
Environmental Planning and Assessment Regulation 2000

DATES OF HEARING:

8, 9, 12/12/05

 
DATE OF JUDGMENT: 

01/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Green, solicitor
SOLICITORS
Pike, Pike and Fenwick

FIRST RESPONDENT
Mr J Webster SC
SOLICITORS
Sparke Helmore

SECOND RESPONDENT
Ms S Duggan, barrister
SOLICITORS
Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C with Brown C

13 January 2006

10639 of 2005 Figtree Hill Pty Limited (Applicant) v


Cleary Bros (Bombo) Pty Limited (First Respondent) and

Minister for Infrastructure and Planning (Second Respondent)
JUDGMENT

1 COMMISSIONERS: This appeal is made pursuant to s 98 of the Environmental Planning and Assessment Act 1979 (the EPA Act) where an objector who is dissatisfied with the determination of a consent authority to a development application for designated development may appeal to the Court.

2 The appeal relates to the granting of development consent by the then, Minister for Infrastructure and Planning (the Minister) of DA No. 466-11-2003 on 27 May 2005 for the extension to an existing hard rock quarry at Croom, approximately 2.5 kilometres east of Albion Park and 4 kilometres west of Shellharbour (the site). The granting of development consent was based on an Assessment Report by officers of the then, Department of Infrastructure, Planning and Natural Resources (the Department).

The site

3 The site comprises Lot 1 in DP 858245 and Lot 23 in DP 1039967, Dunsters Lane, Croom. Lot 23 has an area of approximately 40 hectares and is the site of the existing quarry. The proposed extension is to be carried out on Lot 1.

4 Development in surrounding area is characterised predominantly by extractive industry and grazing and dairy farms. The extractive industries are generally to the west, north west and south west of the site, while the agricultural land uses extend to the north, east and south east.

5 The Applicants land is located to the north of the site and is used as a dairy farm. The residence is located 450 metres north east of the site.

The approval

6 The approval provides for the extraction of approximately 16.5 million tonnes of hard rock and associated overburden/agglomerate over a period of 30 years. The development of the quarry is in six stages (see Attachment 1), each of five years duration and involves the production of up to 400,000 tonnes of hard rock per year from the quarry.

7 The existing quarry at Lot 23 is connected to an existing processing plant by a private haul road. Vehicular access from the processing plant and quarry to the main road system is via an access road leading to a roundabout controlled intersection with the east - west to route. The east - west route joins the Princes Highway and New Lake Entrance Road at a roundabout controlled intersection approximately 800 metres further to the north.

8 The proposed extraction area comprises 17.1 hectares of the 40 hectares of Lot 1. This area of land is mostly cleared grassland with scattered trees and pockets of remnant vegetation. The grassland area of Lot 1 is used for cattle grazing under an arrangement between the First Respondent and the neighbouring dairy farm.

Relevant planning controls

9 On 10 December 2004 and between the time of the lodgement of the development application and the determination by the Minister, Shellharbour Rural Local Environmental Plan 2004 (LEP 2004) came into force. Under LEP 2004 the majority of the site is zoned Extractive Industry 1(x). The proposed use is permissible with consent within this zone. The remainder of the site is zoned Rural Landscape 1(r l) and while prohibited in this zone the proposed use is permissible under s 76A(8)(c) of the EPA Act.

10 The proposed development was classified as State significant development under s 76A(7)(b)(iii) of the EPA Act at the time of approval. It also involved an extractive industry with a total resource greater than 5 million tonnes and on this basis was also State significant development.

11 The declaration identifying the development as being in a class of development able to be identified as State Significant Development was revoked on 10 June 2005, however amendments to State Environmental Planning Policy (Major Projects) 2005 and the Environmental Planning and Assessment Regulation 2000 reinstated the proposed use as State Significant Development on 7 December 2005. There was no dispute that the proposed development was classified as State significant development for the purposes of these proceedings and had the benefit of s 76A(8)(c) of the EPA Act. This states:

If …. but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent.

12 The proposed development is classified as a designated development under s 77A of the EPA Act and Schedule 3 of the Environmental Planning and Assessment Regulation 2000 as it involves an extractive industry that would obtain more than 30,000 cubic metres of material per year and disturb a total surface area of more than 2 hectares of land.

13 The proposed development is also classified as integrated development under s 91 of the EPA Act as it requires an Environmental Protection License under s 47 of the Protection of the Environment Operations Act 1997 and a permit under Part 3A the Rivers and Foreshores Improvement Act 1948. Both integrated approval bodies have granted their general terms of approval for the proposal.

The issues

14 The Applicant filed a Statement of Issues containing five separate issues and a number of sub issues. The Applicant also provided a set of conditions that it sought to be imposed. If imposed, the Applicant accepted that the proposal could proceed. There was disagreement on a number of the Applicants conditions and this disagreement reflected the fundamental differences between the parties and the differences between the experts on the management of fly rock and vibration. A number of issues were addressed through additional or amendments to conditions and the remaining issues can be conveniently grouped into the following main areas:

1) whether the proposed development is acceptable within the Rural Landscape 1(r l) zoned land,
2) whether the Applicants conditions should be imposed, particularly the appropriate buffer to ameliorate impacts of fly rock and vibration and also performance monitoring of the quarry operation.

15 The matters raised by the local residents are addressed in the consideration of the above issues.

The evidence

16 Mr James Lovell for the Applicant, Mr Gary Shiels and Mr Terry Perram for the First Respondent and Mr Phil Jones for the Second Respondent provided evidence on the town planning issues.

17 Mr John Wassermann for the Applicant and Mr Damon Roddis for the First Respondent provided evidence on the dust issue although there was general agreement that this issue could be addressed through appropriate conditions in the consent or in a management plan.

18 Mr Barry Murray for the Applicant and Mr Dick Godson for the First Respondent provided evidence on the management of fly rock and vibration.

19 Associate Professor Evan Hunt, a veterinary surgeon, provided further evidence for the First Respondent on the issue of vibration and the potential impact on dairy cows.

20 Of the experts, only Mr Murray, Mr Godson and Professor Hunt were required for cross-examination.

21 In addition to the expert evidence, Ms Susan Dunster from the Applicant company, Mr Paul de Sousa of 2644 Princes Highway, Mr John McIntyre of 20 James Road, Mr George Bubanga of 4 James Road and Mr Andrew Wilson of Minnamurra provided evidence on site. Copies of all the submissions during the advertising of the application were also provided to the Court for consideration.

The use of Rural Landscape 1(r l) zoned land

22 Mr Lovell maintains that it is not appropriate to approve an extractive industry on land zoned for rural purposes and that the proposed use is wholly inconsistent with the objectives and land use controls applying to that land. Additionally, Mr Lovell considered it to be inappropriate that certain land would be rezoned to allow extractive industry with specific boundaries and that an effectively concurrent development application would extend beyond those specific boundaries.

23 Mr Jones states that the Minister approved the development application on land partly within the Rural Landscape 1(r l) zoned land following the merit assessment of the development application. The Department was satisfied that the development could be managed in a manner that is consistent with the goals of the rural zone.

24 Mr Shiels and Mr Perram were of the opinion that, given the detailed assessment by the Department it was appropriate to approve the application on the part of the land within the Rural Landscape 1(r l) zone. This conclusion was based on the assessment by the Department and the position of the bund wall that would minimise impacts on the adjoining Applicants land.

25 There was no dispute that the proposed development could be approved within the Rural Landscape 1(r l) zoned land through s 76A(8)(c) of the EPA Act despite the use being a prohibited use within this zone.

26 The support from Mr Shields and Mr Perram for the use of the Rural Landscape 1(r l) zoned land comes from the Department's consideration of the development application and as we understand, the adequate control of any impacts from the quarry operation. At the time of the Department’s assessment the land was in the process of being rezoned from Rural Landscape 1(r l) to Extractive Industry 1(x). The presumption in the Department's assessment report was that the quarry would be contained wholly within the Extractive Industry 1(x) zoned land. The fact that the proposal extends beyond this zoning when the rezoning and development application were considered concurrently was a concern off Mr Lovell.

27 The objectives of the Rural Landscape 1(r l) zoned land in cl 17(1) are:

Objectives of the zone

The primary objectives of the zone are as follows:

(a) to protect the landform, native vegetation, habitat corridors and other environmental attributes which contribute to the scenic and ecological values of the rural landscape,
(b) to ensure mineral resources of State and regional significance are not sterilised from future possible extraction by the location of inappropriate uses on adjoining land,
(c) to provide for compatible land uses adjacent to areas of present or likely future mineral resources of State and regional significance,
(d) to ensure that development and management of land has a minimal impact on:
(i) the availability of land containing mineral resources of State and regional significance for future extraction, and
(ii) water quality and environmental flows of receiving streams, and
(iii) ecological values of the land, and
(iv) the amenity of surrounding uses, and
(v) visual impact on the rural landscape character.

28 When the proposal is considered against the objectives of the Rural Landscape 1(r l) zoned land, it is not surprising that there is a level of incongruity as the proposed use is prohibited within the zone. What can be drawn from the objectives is a desire to protect the environmental values of the rural landscape while not sterilising the hard rock resource. Even though the concerns of Mr Lovell have some merit they are not a sufficient reason, based on a consideration of the merits to limit the extraction to the Extractive Industry 1(x) zoned land.

29 In our opinion, the proposal is acceptable within the Rural Landscape 1(r l) zone for a number of reasons.

30 Firstly, s 76A(8)(c) of the EPA Act provides the opportunity for its use.

31 Secondly, there was no evidence to suggest that the area contained any specific environmental attributes such as habitat corridors or native vegetation.

32 Thirdly, the area of extraction is relatively small and is located generally along the eastern boundary of the site. The area does not create any impacts on the adjoining land that would warrant the extraction being limited to the Extractive Industry 1(x) zoned land. In our understanding of the evidence, the potential impacts on the Applicant’s land are generally restricted to the interface with the northern boundary. For reasons set out later in the judgement we accept that these impacts are satisfactorily addressed.

33 Fourthly, the additional area for extraction will add only marginally to the loss of rural landscape, as it will still adjoin an area set aside for extraction.

34 Fifthly, the area for extraction in the Rural Landscape 1(r l) zoned land is contained within proposed Stage 5, which is not scheduled for extraction until years 21 - 25. It seems appropriate that this timeframe allows for the regularisation of the zoning to make extraction a permissible use.

The conditions

35 The parties provided different conditions. The First Respondent and the Second Respondent (the Respondents) rely on the conditions in the Ministers approval with some modifications whereas the Applicant provided a new set of conditions. At the request of the Court, the Applicant amended the conditions and used the Ministers conditions as a base with the differences highlighted. This document was tendered as Exhibit 101. The specific differences and the reasons for the differences were provided to the Court as a separate document and tendered as Exhibit L. Exhibit L was used as the basis for the parties closing submissions and is used for the Courts determination of the conditions in dispute.

Definition of "Fig Tree Hill Land"

36 The Applicant submits that the definition should include "in the present or succeeding titles" whereas the Respondents submits that the definition should be "as at the date of consent". We accept the Applicant’s submission as any impacts created by the quarry need to the controlled irrespective of whether the existing lots are maintained in the current configuration or are subdivided at some future time.

Schedule 3 - Condition 3

37 This condition requires that if there is any consistency between the documents specified in condition 2 then the conditions of consent shall prevail. The Applicant submits that the additional words "or any document prepared pursuant to this consent" should be added however the Respondents submits that it is unnecessary as the undoubted reference to a Management Plan cannot undermine any other condition of consent. We accept that the Respondents submission that any reference to a Management Plan can be implemented through the specific condition without a reference in condition 3.

Schedule 3 - Condition 4a

38 The Applicant proposes a condition that restricts the extraction to the land zoned Extractive Industry 1(x). The Respondents objects to the condition. For the reasons set out in the preceding paragraphs we accept that the condition may be deleted.

Schedule 3 - Condition 6

39 This condition addresses Stages 5 and 6 of the proposal and provides for a report to be submitted to the Minister after consultation, including the landowners of the Fig Tree Hill Land. The Applicant submits that a copy of the report should be provided to the landowners of the Fig Tree Hill Land. The Applicant further submits that objectors to original proposal should be notified by letter and invited to make submissions. The Respondents oppose this, as it will result in submissions not part of the process.

40 We largely accept the submission of the Respondents however we accept that it is reasonable for objectors to be advised in writing of the report but not that further submissions should be invited considering the previous consultation required by the condition. The first dot point in the Notes is to read:

• make the report public and notify the objectors to the original proposal by letter.

  Schedule 3 - Condition 10

41 This condition requires the proponent to protect public infrastructure and repair or pay for any damage caused to public infrastructure. The Applicant submits that this condition should include private property. The Respondents submits that this is unnecessary as there is no avoidance of an obligation to take care when carrying out operations associated with the quarry under the general law.

42 We accept the Respondents submission on this condition.

Schedule 4 - Condition 1(a)

43 This condition requires a registered surveyor to mark out the boundaries of the proposed extraction. The Applicant seeks the registered surveyor to also mark out "the approved area". The Respondents submits that a registered surveyor cannot mark an "area" but only a boundary. On this basis the condition should remain unchanged. We accept the Respondents conclusion on this condition because the critical marking definition is of the extraction boundaries to ensure environmental impacts are contained.

Schedule 4 - Condition 2

44 This condition represented a significant issue between the parties. The Applicant submitted that a 50 metre buffer was required along the northern boundary whereas the Respondents maintained that a 10 metre buffer was appropriate. The basis for the Applicant's 50 metre buffer was the potential for fly rock from blasting and the impact of vibration on the Applicant's dairy cattle.

45 The northern boundary of the site has a length of approximately 840 metres. The proposal provides for an undisturbed length to the east of approximately 340 metres, a central portion of approximately 160 metres containing a 20 metre wide and 3 metre high vegetated bund and the remaining 340 metres to the west having a 10 metre wide vegetated buffer strip. The western vegetated buffer adjoins the haul road for the quarry was the subject of further evidence at the hearing (Exhibit C). This evidence included a cross-section showing the location of the haul road, associated batters and the vegetated buffer strip. The overall width required to accommodate these features was shown as 40.2 metres.

46 The Staging Plan provides for the extraction in 6 stages. The western portion of the site is proposed to be extracted at Years 16 to 20 (Stage 4) and the eastern portion at Years 21 to 25 (Stage 5). An area to the west of the site and south of the haul road is to be extracted at Years 6 to 10 (Stage 2). Mr Godson stated that a total of 8 blasts would occur adjacent to the northern boundary over the 30-year life of the quarry. One blast will occur in the first 10 years, six blasts within the next 10 years and one blast within the following 10 years. Each blast will last approximately four seconds. Blasting is to be controlled by a Blast Management Plan.

Fly rock

47 Mr Godson states that the Blast Management Plan addresses the potential opportunities for fly rock through specific fly rock management techniques including the identification of areas of less than optimum burden, optimum stemming length, appropriate stemming material, a the retention of a layer of overburden and the provision of blast mats. He further states that the potential for fly rock is reduced as the blasting will occur around 17 metres to 20 metres below the level of the adjoining property Additionally, Mr Godson states the site specific quarry extension site laws will be continuously updated and used to design the next blast.

48 Mr Godson further stated that he has been involved in blasting at other quarries, including those controlled by the proponent and has not observed any fly rock from blasting, under similar conditions.

49 Mr Murray states that while attempts have been made to minimise fly rock from blasting, then can be no guarantee that it will not occur. In his opinion, the only viable option to protect cattle and persons on the adjoining property is to provide a 50 metre buffer.

50 On this matter, we generally agree with the conclusions of Mr Godson. In coming to this conclusion we accept that the potential for fly rock exists however we also accept that all reasonable attempts have been made to minimise any potential problems. When this is combined with the low frequency of blasts adjoining the northern boundary, the proposed buffers including the "effective" 40 metres separation provided near the haul road and the vegetated bund, any potential risk is minimised to an acceptable level.

51 Further, we note that the Blast Management Plan provides details on managing fly rock (cl 6.2.6) including the matters in par 47. We also note that the Blast Management Plan provides procedures for notifying landowners or occupiers of proposed blast events (cl 6.2.9). In our view, these requirements are generally satisfactory for most blasting events however they are inadequate for the blasts adjacent to the northern boundary. A telephone call on the morning of blasting indicating an expected time firing is inadequate in this situation even accepting that a person may be home to receive the phone call. At a minimum, written correspondence should be received no later than 48 hours prior to the blasting with a follow-up phone call on the morning confirming the blast. This level of communication would allow the area adjoining the blast to be cleared of cattle and persons. The Blast Management Plan should be amended accordingly.

52 We accept that this may cause a small level of inconvenience to the operation of the dairy farm however it is not, in our opinion, unreasonable considering the frequency of eight blasts over 30 years and the result that the potential risk of fly rock on cattle and persons is removed completely.

Ground vibration on dairy cattle

53 The Blast Management Plan (cl 6.2.1) provides for maximum 200 mm/sec peak particle component velocity levels at the southern boundary. The concerns over ground vibration relate to the potential for dairy cattle to be startled by the vibration and a consequent adverse effect on milk production.

54 Mr Murray states that the 200 mm/sec criterion is excessive and proposes a 20 mm/sec criterion based on the standards in AS 2670.1 – 1990 Evaluation of human exposure to whole body vibration.

55 Associate Professor Hunt maintains that the 20 mm/sec criterion is not a realistic level for cattle because of their different body design compared to humans. He advocates a 200 mm/sec criterion as an appropriate level that would not appear to adversely impact on cattle. He states that research indicates that cattle and sheep do not recognise vibration until it is well beyond the comfort zone for humans. As a basis for assessing vibration impact on cattle, a trial was undertaken by a measuring vibration and observing any reaction of cattle when being transported in trucks. The transportation trial Heggies Australia Pty Ltd (November 2005) Report on Vibration Effects in Transported Cattle (the Heggie report) found vibrations at levels above 200 mm/sec where not recognised as influencing general health in animals being transported. Associate Professor Hunt further states that in most livestock transport situations the animals are transported at much higher speeds over longer distances and the vibrations would be far greater.

56 In considering this issue it was agreed that there was no research or literature available that provides appropriate vibration values that impact on cattle other than the Heggie report. Mr Murray questioned the methodology of testing vibration on cattle through transportation however in the absence of any other research we accept that it can provide an indication or some general guidance of vibration effects. The approach was suggested by Associate Professor Hunt who has been involved in research into the effects of vibration on animals since 1988.

57 In balancing the competing evidence we are more inclined to accept the conclusions of Associate Professor Hunt as a veterinarian and because of his long involvement with matters relating to this issue rather than the speculation of Mr Murray. While scientific research on the issue is limited at best, we are prepared to give significant weight to the expertise and general observations of Associate Professor Hunt on the effect of vibration on animals he has acquired over a considerable period of time. After comprehensive cross-examination he stated that many quarries have operated in the country where they adjoin agricultural uses. To his knowledge there is no record or history that indicates any incompatibility between these two uses on the issue of vibration. His conclusions are also supported by the findings in the Heggie report. We also accept his proposition that any reliance on AS 2670.1 – 1990 would be unreliable because it specifically relates to humans.

58 The consequence is that the requirement in the Blast Management Plan providing for a maximum 200 mm/sec peak particle component velocity levels at the southern boundary is unlikely to have a significant impact on cattle on the adjoining property. We are also mindful that sufficient notice will be provided for cattle to be moved, as a precaution, from the common boundary with the quarry when the relatively infrequent blasting events are planned adjacent to this boundary.

59 For the above reasons the Respondents condition is preferred however the condition should reflect the proposed landscaped bund and the alignment of the haul road (including batters) as shown in Exhibit C.

Schedule 4 - Condition 7

60 The condition proposed by the Applicant requires strict compliance with the Noise Monitoring Program annexed to the development consent. The Respondents opposes the condition, on the basis that the final management plans should not form part of the consent. If such management plans were included in the consent it would restrict the plans to the date of the consent and limit the opportunity to updating and response to environmental changes.

61 We accept the Respondents submission however the condition should contain the relevant heads of consideration to be addressed in the Noise Monitoring Program. This was a matter raised during the hearing and we understand that there was no dispute between the parties on the appropriate heads of consideration, including a review mechanism to be included in the management plan.

Schedule 4 - Condition 7a

62 This condition provides specific requirements for the measurement of noise. The Respondents opposes this condition, as issues relating to noise should be accommodated within the Noise Management Plan. We accept the Respondents submission on this condition for the reasons in the preceding paragraphs.

Schedule 4 - Condition 9

63 This condition provides directions where there has been exceedance of agreed noise limits. The Applicant requires that the exceedance must be reported to "the owner of the property at which there is an exceedance" in addition to the Director – General and the Department of Environment and Conservation (DEC).

64 The Respondents opposes the condition as reporting requirements and information disclosure are adequately provided for in the proposed conditions. We accept the Applicant’s condition as it is reasonable that the owner of the property, the subject of the exceedance be advised and provided with the measures proposed to ensure ongoing compliance with the noise limits.

Schedule 4 - Conditions 9a, 10a, 11a

65 These conditions provide specific requirements for blasting. The Respondents opposes the conditions, as issues relating to blasting should be contained within the Blast Management Plan. We accept the Respondents submission on this condition.

Schedule 4 - Condition 12

66 This condition provides times when blasting may occur. The condition allows for blasting "at such other times as may be approved by the DEC". The Applicant seeks to add the further words "after consultation and agreement of adjoining land owners". The Respondents submits that an emergency situations may arise in which it would be necessary to blast in addition to or at another time than normal blasting hours. As a matter of safety, the blast cannot wait for agreement of neighbours.

67 We accept that emergency situations may occur at the site and in these circumstances it is appropriate to rely on the DEC to vary the blasting times. However notification to adjoining neighbours is still appropriate where possible, although the issue of safety should be the first consideration. We therefore accept that the agreement of adjoining land owners should not be required.

Schedule 4 - Condition 14

68 This condition details requirements of the Blast Management Plan. We accept the Respondents submission that the condition should contain the relevant heads of consideration to be addressed in the Blast Management Plan. This was a matter raised during the hearing and we understand that there was no dispute between the parties on the appropriate heads of consideration. We accept this approach is reasonable in the circumstances.

Schedule 4 - Condition 14a

69 This condition requires the proponent to pay reasonable costs of any consultants engaged by the owners of the Fig Tree Hill Land in receiving independent expert advice in respect of the Blast Management Plan.

70 The Respondents oppose this condition. We accept that the condition is unreasonable and should be deleted.

Schedule 4 - Condition 15, 15a

71 These conditions details requirements for blasting. We accept the Respondents submission that the conditions should contain the relevant heads of consideration required to be addressed in the Blast Management Plan. This was a matter raised during the hearing and we understand that there was no dispute between the parties on the appropriate heads of consideration. We accept this approach is reasonable in the circumstances.

Schedule 4 - Condition 15b

72 This condition proposed by the Applicant details requirements for the independent monitoring and assessment of blasting. The Respondents oppose the condition because the associated conditions provide for extensive collection and collation of blasting results that are to be made public.

73 We are not convinced of the need or reasonableness of the independent monitoring and assessment of blasting however, we accept that the results of the monitoring of the blasting should be publicly available. The mechanism to provide for the public dissemination of blasting monitoring data (and other data) is provided through the Annual Environmental Management Report to the Director General and the relevant agencies (Schedule 5 – Condition 5) and the Independent Environmental Audit (Schedule 5 – Condition 6).

Schedule 4 - Conditions 18a-j, 19a, 20

74 These conditions details requirements for dust management. We accept the Respondents submission that the conditions should contain the relevant heads of consideration required to be addressed in the Dust Management Plan. This was a matter raised during the hearing and we understand that there was no dispute between the parties on the appropriate heads of consideration.

Schedule 4 – Condition 46, 47

75 These conditions relate to site access. The Applicant submits that there is conflict between the conditions however the Respondents maintain that no conflict exists. Further discussion between the parties is required to either draft a condition that removes any conflict or the Applicant is to identify the specific areas of conflict.

Schedule 4 – Condition 51

76 This condition relates to the preparation of a dilapidation survey. There is general agreement between the parties on the intent of this condition subject to the Applicant providing details of three qualified persons willing to undertake the survey. We agree that this is an appropriate way of dealing with this issue.

Schedule 4 – Condition 52

77 This condition requires the owners of the nominated properties to approve the person undertaking the dilapidation survey. As the opportunity is provided, through condition 51, to nominate three qualified persons for this task we accept that it is unreasonable for any appointment be subject to the approval of any person beyond the proponent.

Schedule 4 – Condition 55

78 This condition refers to the construction of the visual/noise bunds and screen plantings. The Applicant accepts that the landscape works be designed and established in accordance with a plan prepared in consultation with the Shellharbour City Council and to the satisfaction of the Director General. However the Applicant further seeks that the plan be prepared by a landscape architect with heritage experience. The plan is to have regard to the cultural landscape of Wentworth Hills.

79 The Respondents oppose the amendment as much work has already been performed on the preparation of the landscape plan.

80 We accept that the amendments proposed by the Applicant are largely unnecessary. The area in question is relatively small and its principle purpose is to provide visual screening of the quarry site. In our opinion, this can be adequately undertaken, in the usual manner, without the amendments suggested by the Applicant.

Schedule 4 – Condition 55a

81 This condition provides specific details of plantings to be contained within the landscape plan. The Respondents oppose this and we accept that the details are more appropriately addressed through condition 55.

Schedule 4 – Condition 56

82 This condition requires the trees, presumably required by the landscape plan, to the maintained and in the event that a tree dies it is to be replaced forthwith. The Respondents oppose this as it lacks certainty.

83 We accept that the condition has some merit and should be maintained although a reasonable time should be included to allow for the replacement of any tree that dies.

Schedule 5 – Condition 4

84 This condition relates to the preparation of an Environmental Monitoring Program within six months of the day of consent. The Applicant seeks, in part an independent review of the program whereas the Respondents maintain that a regular review with possible updates is adequate.

85 We agree with the Respondents as we are not convinced of need for an independent review of the program, considering the obligation to provide an Annual Environmental Management Report to the Director General and the relevant agencies (Schedule 5 – Condition 5) and the Independent Environmental Audit (Schedule 5 – Condition 6).

Schedule 5 – Condition 8

86 This condition establishes the make up of the Community Consultative Committee (the committee) that is "to oversee the environmental performance of the development". Exhibit L is not overly clear on the difference between parties however it would appear that the Applicant seeks an independent position on the committee whereas the Respondents requires the Applicant to the one of the two designated representatives from the local community.

87 In our opinion, it is important that a representative of the Applicant is represented on the committee however we accept that this can be acceptably achieved in the manner suggested by the Respondents without an unacceptable impact on the overall community involvement.

88 The Applicant seeks to add conditions 8(e) and 8(f). Condition 8(e) provides for the committee to review any documents submitted to the DEC and provide submissions prior to the approval of the document. Exhibit L is unclear on the Respondents position however if the committee is to carry out its responsibilities i.e., "to oversee the environmental performance of the development", it should have the ability to review and make submissions on relevant documents.

89 Condition 8(f) provides for the committee to obtain independent expert advice; the cost to be borne by the quarry operator. We are not convinced that it is appropriate for the committee to undertake this role considering its role is limited to community consultation and overseeing the environmental performance of the development.

Applicants conditions 9a – 9d

90 These conditions establish a complaints management process. Exhibit L does not address these conditions however we accept that a complaints management process should form part of the approval of the proposed development. We are unclear as to whether Applicants conditions 9a – 9d are suitable to the Respondents or whether some amendments are required. The opportunity should be provided for the parties to further discuss the wording of a condition that provides for a complaints management process.

Respondent’s conditions 10, 11

91 These conditions relate to access to information. Exhibit L does not address these conditions however we accept that a process that provides access to relevant information should form part of the approval of the proposed development. We are unclear as to whether Respondents conditions 10, 11 are suitable to the Applicant or whether some amendments are required. The opportunity should be provided for the parties to further discuss the wording of a condition that provides access to relevant information.

Conclusion

92 Having considered the evidence, the submissions from the parties and having undertaken view of the site and surrounding areas we are satisfied that the extension to the existing quarry can be approved subject to conditions based on the findings in the judgment.

93 Even though the Applicant proposed a number of additional conditions to monitor the environmental performance of the quarry we are satisfied that the conditions in Schedule 5 are sufficiently comprehensive to address the environmental management, monitoring, auditing and reporting of the quarry. In particular there is a requirement for an Environmental Management Strategy within six months and to the satisfaction of the Director - General, an Environmental Monitoring Program within six months and in conjunction with the relevant agencies and an Annual Environmental Management Report to the submitted to the Director - General.

Directions

94 The conditions of consent require amendment to those provided to the Court based on the findings in the preceding paragraphs and the need for further discussions between the parties. We propose that the parties confer and provide amended conditions of consent within 14 days based on the findings in the judgment, i.e., by 27 January 2006. If the amended conditions are not received by this date the Court will make final Orders without further reference to the parties.

95 Leave is also granted for the parties to restore the matter on 48 hours notice if no agreement can be reached on any conditions. Any leave to restore the matter must be within a time to allow final Orders to be made immediately after 27 January 2006.

____________ __________
R R Hussey G T Brown
Commissioner of the Court Commissioner of the Court