Gunlake Quarries Pty Limited v The Minister for Planning

[2022] NSWLEC 1570

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gunlake Quarries Pty Limited v The Minister for Planning [2022] NSWLEC 1570

Hearing dates:

24-25 February 2021; 26 March 2021

Date of orders:

25 October 2022

Decision date:

25 October 2022

Jurisdiction:

Class 1

Before:

Adam AC

Decision:

The Court orders:

(1) The appeal is dismissed.

(2) The application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify State significant development consent SSD 7090 (Gunlake Quarry Extension Project – Modification 1) is refused.

(3) The exhibits are returned except for A, B, C, D, 1, 2, 3 and 4.

Catchwords:

APPEAL – modification application – Gunlake Quarry Extension Project – modification of State significant development consent to reduce the size of the Biodiversity Offset Areas – interpretation of Final Determination for Box Gum Woodland – derived native grassland – determination of offset requirement using calculator – what is appropriate offset ratio – failure to locate original survey data – absence of reasons in the 2017 judgment giving effect to s34 agreement – management options for offset areas – submissions from objectors – jurisdictional prerequisites - whether the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted

Legislation Cited:

Biodiversity Conservation Act 2016, s 1.3, Pt 6 Div 2

Biodiversity Conservation Regulation 2017, Pt 6 Div 6.1

Biosecurity Act 2015

Clean Water Act (33 U.S.C. §1344 (1972)) (U.S.)

Environment Protection and Biodiversity Conservation Act 1999 (Cth)

Environmental Planning and Assessment Act 1979, Pt 3A (repealed); ss 4.15, 4.55 (current)

Land and Environment Court Act 1979, s 34

Local Land Services Act 2013, s 60B

Minister for the Environment and Heritage (Cth), Inclusion of ecological communities in the list of communities under section 181 of the Environment Protection and Biodiversity Conservation Act 1999 (20 December 2005)

Threatened Species Conservation Act 1995 (repealed), s 3

State Environmental Planning Policy (Mining, Petroleum and Extractive Industries) 2007, cl 14

State Environmental Planning Policy (Resources and Energy) 2021, s 2.20

Cases Cited:

Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; (2018) 233 LGERA 170; [2018] NSWCA 245

Arrage v Inner West Council [2019] NSWLEC 85

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

Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1155

Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79

Gunlake Quarries Pty Limited v The Minister for Planning [2017] NSWLEC 1342

Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Ltd (2010) 210 LGERA 126; [2010] NSWLEC 48

Newcastle and Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd (No 2) [2010] NSWLEC 104

VAW (Kurri Kurri) Pty Ltd v The Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 55 NSWLR 631; 128 LGERA 419; [2003] NSWCA 297

Texts Cited:

B.A. McKenney & J.M. Kieseker, ‘Policy Development for Biodiversity Offsets: A Review of Offset Frameworks’ (2010) 45 Environmental Management 165-176

B.D. Lin et al, ‘The Genetic Overlap between Hair and Eye Color’ (2016) 19 Twin Research and Human Genetics 595-599

David G. Stead, The Tree Book. (Shakespeare Head, Sydney, 1933)

J.W. Audus, 1934 Native Trees of Australia (Whitcombe and Tombs Limited, Melbourne, 1934)

Mark Tozer and Christopher Simpson, ‘Conservation Assessment of White Box – Yellow Box – Blakley’s Red Gum Grassy Woodland and Derived Native Grassland’ (NSW Threatened Species Scientific Committee, dated 22 June 2020)

NSW Office of Environment and Heritage, Framework for Biodiversity Assessment: NSW Biodiversity Offsets Policy for Major Projects (September 2014, ISBN 978-1-74359-754-5)

NSW Threatened Species Scientific Committee, ‘Final Determination: White Box Yellow Box Blakely’s Red Gum Woodland – Endangered Ecological Community Listing’ (15 March 2002)

NSW Threatened Species Scientific Committee, ‘Final Determination: White Box Yellow Box Blakely’s Red Gum Woodland – Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act’ (2 December 2011)

NSW Threatened Species Scientific Committee, ‘Final Determination: White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland in the NSW North Coast, New England Tableland, Nandewar, Brigalow Belt South, Sydney Basin, South Eastern Highlands, NSW South Western Slopes, South East Corner and Riverina Bioregions – Critically Endangered Ecological Community Listing’ (17 July 2020)

R.F. Ambrose, ‘Wetland mitigation in the United States: assessing the success of mitigation policies’ (2000) 19 Wetlands (Australia) 1-17

R. L. Specht, ‘Foliage projective cover and standing biomass’ in A.N. Gillison and D.J. Anderson (eds), Vegetation Classification in Australia (CSIRO/ANU Press, Canberra, 1981) pp 10-21

S. Wilkins, D.A. Keith & P. Adam, ‘Measuring Success: Evaluating the Restoration of a Grassy Eucalypt Woodland on the Cumberland Plain, Sydney, Australia’ (2003) 11 Restoration Ecology 489-503

NSW Environment, Energy and Science, ‘Speckled Warbler – profile’ (Online)

Category:

Principal judgment

Parties:

Gunlake Quarries Pty Limited (Applicant)
The Minister for Planning (Respondent)

Representation:

Counsel:
A Pickles SC with L Nurpuri (Applicant)
J Reid with J Flaherty (Respondent)

Solicitors:
Corrs Chambers Westgarth (Applicant)
Department of Planning and Environment (Respondent)

File Number(s):

2019/79356

table of contents

Background

The Applicant proposes to modify the 2017 Consent

Reducing the offset requirements after the 2017 judgment

The drone video

The Applicant’s grounds for seeking to modify the 2017 Consent

The ecological community on the subject site

What is known about the vegetation in 2006 in what is now the working area of the quarry and the north-western Biodiversity Offset Area?

Was the extent of Box Gum Woodland on the subject site overestimated?

The identification of the vegetation changes over night

The determination of required offset area

Submissions regarding the modification application

Submission from Goulburn Mulwaree Council

Jurisdictional issues

GMLEP – cl 7.2 Terrestrial biodiversity

Mining SEPP

Section 4.55 of the EPA Act – is it the same development?

Given my findings, what should be the outcome?

Final orders

Judgment

Background

1. On the Southern Tablelands, in the Goulburn Mulwaree Shire Local Government Area, near Marulan, is a number of hard rock quarries, one of which is the Gunlake Quarry situated about 7 km northwest of Marulan. The quarry comprises Lot 13 in Deposited Plan 1123374 and Lot 271 in Deposited Plan 750053, with the street identification of 715 Brayton Road, Marulan. The quarry site is on the western side of Brayton Road. The quarry pit is situated wholly within Lot 13.

2. The quarry extracts tuffaceous rhyodacite, an igneous rock that is part of the Early Devonian Bindook Volcanic Complex. The rock is processed into a number of products including concrete and sealing aggregates, rail ballast, road base and manufactured sands – products required in the construction of many infrastructure projects.

3. The first consent for a quarry on the site was awarded in 2008 under the then Pt 3A of the Environmental Planning and Assessment Act1979 (EPA Act) – the 2008 project approval MP 07_0074 (2008 Consent). The quarry has operated on the site since the 2008 Consent came into effect. The quarry is a complex operation, with a number of different components. The 2008 Consent and its associated conditions covered all aspects of the quarry’s construction and operations.

4. The 2008 Consent included, amongst its conditions, Condition 27 in Schedule 3, which required a total vegetation offset area of 76.54 ha. This offset area comprised what was subsequently referred to as Biodiversity Areas 1 and 2. It is the Biodiversity Areas which are at the heart of these present proceedings. (Confusingly in the present matter, the numbering of the two Biodiversity Areas has been reversed from the numbering in earlier documentation.)

5. The 2008 Consent was modified in 2013, 2014 and 2015. The 2013 and 2015 modifications were, for present purposes, minor, affecting transport routes and numbers of truck movements. The 2013 and 2015 modifications did not involve any changes to Condition 27, so the specification of the vegetation offset area was not affected. Modification 2 in 2014 was of greater significance to the current proceedings. It included expansion of the size of the quarry pit, an increase in truck movements commensurate with an increase in saleable product to 750,000 tonnes per annum and changes to the approved hours of operation. A new Condition 27 of Schedule 3 was imposed, increasing the Biodiversity Offset Areas to 78.82 ha.

6. Further changes occurred in 2017. On 30 July 2017 the Court in Gunlake Quarries Pty Limited v The Minister for Planning [2017] NSWLEC 1342 (the 2017 judgment) granted consent to the Gunlake Quarry Extension Project (State significant development application no. 7090 (SSD 7090)) (the 2017 Consent). The proceedings in 2017 were brought before the Court following the rejection of the proposal by the Planning Commission. SSD 7090 (Gunlake Quarry Extension Project), as approved, allowed for the Applicant to:

1. extend the quarry footprint of the Applicant's existing quarry at 715 Brayton Road, Marulan;

2. transport no more than 2 million tonnes of quarry products from the site per year;

3. allow additional overburden emplacement to accommodate the increase in production;

4. allow 24 hour per day primary crushing; and

5. allow blasting up to twice weekly,

subject to the conditions set out in Annexure “A” to the judgment, including Appendices 1 to 6.

7. This judgment gave effect to the outcome of a s34 agreement (Land and Environment Court Act 1979 (LEC Act)). A s34 agreement is the outcome of confidential, without prejudice, discussions between the parties. The 2017 judgment was given before the Court of Appeal’s consideration in Al Maha Pty Ltd v Huajun Investments Pty Ltd (2018) 365 ALR 86; (2018) 233 LGERA 170; [2018] NSWCA 245 (Al Maha). The judgment for the 2017 Consent was in what was then the standard format for s34 agreements - indicating that an agreement had been reached, and documenting the agreed conditions of consent in an annexure. The Court of Appeal determined that Commissioners in the Land and Environment Court when endorsing a s34 agreement were required to give reasons, and that the previous standard practice was inadequate, as explained by Preston CJ of the LEC in Al Maha at [199]-[202]:

“199 The duty to give reasons is ‘an incident of the judicial process’ (Housing Commissioner (NSW) v Tatmar Pastoral CoPty Ltd [1983] 3 NSWLR 378 at 386; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 270), ‘subject to the qualification that it is a normal but not universal incident’ (Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667; [1986] HCA 7). The giving of reasons is a necessary incident of the judicial process because it enables the basis of the decision to be seen and understood: Soulemezis v Dudley (Holdings) Pty Ltd at 279. ‘As an incident of the judicial office, the judge is expected by the community to demonstrate the lawfulness of what he or she has done’: see North Sydney Council v Ligon 302 Pty Ltd (1995) 87 LGERA 435 at 442.

200 The particular check on the jurisdiction of the Court to make a decision under s 34(3) disposing of the proceedings in accordance with the parties’ decision is an express part of the function being exercised by the Commissioner under s 34 of the Court Act. The Commissioner is allocated by the Chief Judge under s 30(1)(b) of the Court Act to exercise the function of the Court under s 34 of the Court Act. Any decision made by the Commissioner under s 34 is taken to be a decision of the Court (s 34(8) of the Court Act). The decision of the Court is final and conclusive (s 56 of the Court Act). Any decision of a Commissioner under s 34 is thus made within the institutional structure of the Court: see Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council (2009) 170 LGERA 162; [2009] NSWCA 300 at [36].

201 These factors support the existence of a specific obligation on a Commissioner to give reasons with respect to the check on the jurisdiction of the Court, which is required by s 34(3) of the Court Act, to make a decision disposing of the proceedings in accordance with the parties’ decision.

202 The content and detail of the reasons that will need to be given depends on the particular decision in respect of which there is an obligation to give reasons. For the particular obligation to give reasons that the decision is one that the Court could make in the proper exercise of its functions under s 34(3) of the Court Act, the content of the reasons will be limited by reference to that particular check on jurisdiction and will not extend to the overall decision to dispose of the proceedings in accordance with the parties’ decision. The detail of the reasons can be brief, identifying any jurisdictional prerequisite to the exercise of the function and indicating why the prerequisite is satisfied and the decision is one that the Court could have made in the proper exercise of its functions.”

8. The 2017 judgment had what was then the standard content for s34 (LEC Act) judgments, with the consequence that if there was a subsequent modification application to alter the decision, including conditions, the consent authority considering the modification application suffers under the disadvantage described by Preston CJ:

“…The Commissioner unsurprisingly found little assistance in the Court’s formulaic and perfunctory judgment granting consent in accordance with the parties’ agreement.”

Arrage v Inner West Council [2019] NSWLEC 85 at [21]

9. The discussions between the parties during a s34 conference are held on a confidential, and without prejudice, basis and there is no record of the matters discussed. If the parties reach an agreement, then, if that agreement is one which the Court in the proper exercise of its functions could make (s 34(3) of the LEC Act):

(3)  If, either at or after a conciliation conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions), the Commissioner—

(a)  must dispose of the proceedings in accordance with the decision, and

(b)  must set out in writing the terms of the decision.

the Court must dispose of the proceedings in accordance with the decision (s 34(3)(a)).

10. Prior to Al Maha, the practice in s34 judgments had been to acknowledge that an agreement between the parties had been reached, and this acknowledgement had been presumed to satisfy the requirement of s 34(3)(b).

11. Since Al Maha, if an agreement is reached between the parties, the Court is provided by the parties with a jurisdictional statement, documenting any jurisdictional prerequisites to the making of a decision. The judgment includes a summary of the jurisdictional prerequisites and an explanation of why the Court is satisfied that the prerequisites have been met. As well as being satisfied that particular provisions of planning instruments which establish prerequisites have been met, the Court would need to be satisfied that there is owner’s consent for making the application, and that the requirements for notification have been met, and that any submissions, whether in writing or given in person by objectors prior to the without prejudice and confidential phase of the s34 process have been considered.

12. I have no reason to doubt that the Commissioner in ratifying the agreement in 2017 was properly satisfied of all relevant matters, but there is no record of the details in the judgment nor any information about whether there were objector submissions.

13. If a s34 agreement is reached between the parties the Court does not make any merits assessment of the issues and their resolution by the parties; nevertheless, in reaching an agreement, the parties will have reached satisfaction that, from their perspective, the merits issues have been resolved.

14. The agreement between the parties was entered into voluntarily and both parties therefore agreed to the judgment granting consent to the Applicant, and to all the conditions which were annexed to the 2017 judgment and define how the judgment is to be put into effect.

15. In the conditions of consent for the 2017 approval, Schedule 2 in Annexure A to the 2017 judgment comprise the administrative conditions. Conditions 11 and 12 are as follows:

“Surrender of Existing Development Consents

11. Within six months of commencing development under this consent, or as otherwise agreed by the Secretary, the Applicant must surrender the project approval MP 07_0074 for the Gunlake Quarry granted on 24 September 2008, in accordance with the EP&A Regulation.

Note:    This requirement does not extend to the surrender of construction and occupation certificates for existing and proposed building works under Part 4A of the EP&A Act. The surrender of the project approval should not be understood as implying that works legally constructed can no longer be legally maintained or used.

12. Following the commencement of development under this consent, the conditions of this consent shall prevail to the extent of any inconsistency with the conditions of project approval MP 07_0074.”

16. The surrender of project approval MP 07_0074 has occurred.

17. The orders in the 2017 judgment refer to the application to extend the quarry footprint. However, the requirement in the conditions to surrender the 2008 Consent means that the 2017 Consent approved the whole footprint and quarry activities, not just the extension. The conditions which apply to the whole of the quarry are those to the 2017 Consent. The modification application before the Court applies to the 2017 Consent and not to the original 2008 Consent and its modifications. However, the conditions applying the 2017 Consent have their origin in the 2008 Consent and thus necessitate consideration of the 2008 conditions.

18. The two separate Biodiversity Areas, collectively forming the required biodiversity offset is shown in Appendix 5 to the 2017 Consent:

Figure 1 Location of Biodiversity Areas

19. The two areas, one to the north and west and the other to the north and east of the working area of the quarry are in close proximity to each other but they are not contiguous.

20. The image shows areas of denser woodland vegetation to the south and east of the quarry and areas of grassland with scattered trees, with some small areas of denser woodland within the offset areas. Landscapes with similar distribution of vegetation features are widespread on the Tablelands and Western Slopes.

21. Annexure A to the 2017 judgment includes at pages 3 and 4 definitions which apply to the Consent. These relevantly include:

Biodiversity offset strategy

The conservation and enhancement strategy described in the EIS

EIS

Environmental Impact Statement titled Gunlake Quarry Extension Project, dated April 2016 and prepared by EMM, and the Response to Submissions report titled Gunlake Quarry Extension Project Response to Submissions, dated September 2016 and prepared by EMM

[The EIS prepared by EMM is Ex C Tab 1]

Mitigation

Activities associated with reducing the impacts of the development

22. Schedule 2 of the 2017 Consent includes:

“Obligation to Minimise Harm to the Environment

1. In addition to meeting the specific performance measures and criteria established under this consent, the Applicant must implement all reasonable and feasible measures to prevent and/or minimise any material harm to the environment that may result from the construction, operation, or rehabilitation of the development.

Terms of Consent

2. The Applicant must carry out the development:

(a)   generally in accordance with the EIS; and

(b)   in accordance with the conditions of this consent, the Development Layout Plan and the Statement of Commitments.

Notes:    The Development Layout Plan is included in Appendix 1

The Statement of Commitments is included in Appendix 2”

23. The Statement of Commitments relevantly includes:

Aspect

Biodiversity

Commitment

Rehabilitation and Biodiversity Offsets Management Plan [previously the Landscape Management Plan]

• The Rehabilitation and Biodiversity Offsets Management Plan (RBOMP) will be updated to include details on biodiversity management and rehabilitation for the extension project. The plan will be completed and implemented within 12 months of commencing development under the consent.

• The RBOMP will include procedures to be applied for the management of the offset properties, the arrangements for conservation in perpetuity and regeneration works to be undertaken. This will include the procedures for:

- assisting the revegetation and regeneration in the offset areas, including establishment of canopy, understorey and groundcover in areas of native pasture where required;

- controlling weeds and feral pests;

- fencing and access arrangements;

- erosion control; and

- bushfire management.

• An offset monitoring program will also be included within the RBOMP to monitor any changes to the condition of the offset areas.

Offsets

• Biodiversity Areas of 78.82 ha will be provided to compensate for the biodiversity impacts of the original approval, as modified.

• An offset package with 1,380 ha of biodiversity credits will be provided under a BioBanking agreement to compensate for the additional biodiversity impacts of the extension project.

• The offset areas will be managed in accordance with the RBOMP.

and for rehabilitation:

Soils and rehabilitation

Rehabilitation scheduling

•   Rehabilitation will be progressively staged as soon as possible after final completion of works is determined. Staging of rehabilitation activities will require identification of timelines for decommissioning of pits, buildings and other supporting infrastructure. A more detailed schedule of works will be developed 12 to 24 months prior to the confirmed closure.

Erosion and sediment control

•   Erosion and sediment control measures will be defined in an Erosion and Sediment Control Plan to be implemented throughout the life of the project.

Weeds

•   Gunlake will take the necessary precautions to prevent excessive development of weeds within rehabilitated areas.

Rehabilitation monitoring

•   Gunlake will undertake an ongoing monitoring program throughout and beyond the operation of the project. Areas being rehabilitated will regularly be inspected and assessed against the short and long-term rehabilitation objectives outlined in EIS Section 6.4.1.

•   It is envisaged that rehabilitation monitoring will be undertaken for at least 2 years following the completion of all rehabilitation. The exact period would reflect seasonal conditions during that period. In any event, maintenance will continue until such time as the objectives have been achieved. The monitoring criteria will be reviewed and finalised with Goulburn Mulwaree Council at the time of submitting a final rehabilitation plan.

24. Schedule 3 of the 2017 Consent includes:

Biodiversity And Rehabilitation

Biodiversity Offset Strategy

31. The Applicant must implement the Biodiversity Offset Strategy, including:

(a) protecting, enhancing and maintaining the Biodiversity Areas identified in condition 32 of Schedule 3; and

(b) retiring the biodiversity credits identified in condition 34 of Schedule 3, in accordance with the Framework for Biodiversity Assessment - NSW Biodiversity Offsets Policy for Major Projects;

to the satisfaction of the Secretary and OEH.

Biodiversity Areas

32. The Applicant must protect, enhance and maintain the Biodiversity Areas described in Table 7 and shown conceptually on the plan in Appendix 5, to achieve the objectives in Table 7 to the satisfaction of the Secretary and OEH

Table 7: Biodiversity Areas

Biodiversity Area	Objective	Minimum Size (ha)
White Box-Yellow Box Blakely’s Red Gum Woodland Endangered Ecological Community (Box Gum Woodland EEC)	Protect, maintain and enhance, including through assisted regeneration, Box Gum Woodland EEC on the site	32.66
Cleared land	Regenerate and/or replant cleared land on site with native vegetation representative of Box Gum Woodland EEC	46.16
Total	78.82

Security of Biodiversity Areas

33. Prior to commencing quarrying operations under this consent, unless otherwise agreed with the Secretary, the Applicant must make suitable arrangements to provide long-term security and funding for the Biodiversity Areas identified in condition 32 of Schedule 3, to the satisfaction of the Secretary and OEH.

Note:    Mechanisms to provide appropriate long-term security to the Biodiversity Area include a BioBanking Agreement, under the Threatened Species Conservation Act 1995, a Voluntary Conservation Agreement or an alternative mechanism that provides for a similar conservation outcome. Any mechanism must remain in force in perpetuity.

Biodiversity Offsets

34. The Applicant must retire the biodiversity credits set out in Table 8, in accordance with the Framework for Biodiversity Assessment - NSW Biodiversity Offsets Policy for Major Projects to the satisfaction of the Secretary and OEH. The credits identified in Table 8 include credits arising from the carrying out of the primary transport route upgrade works referred to in condition 26. If the vegetation to be removed is less than anticipated at the date of this consent the credits arising from these upgrade works may be reduced if approved by the Secretary provided the number of credits does not fall below the minimum number identified in column 2 of the table.

Table 8: Biodiversity credits to be retired

Credit type	Number of Credits	Additional Credits resulting from Primary Transport Route Upgrade Works
Ecosystem Credits
Yellow Box ‐ Blakely’s Red Gum Grassy Woodland (PCT1330)	373	13
Yellow Box ‐ Blakely’s Red Gum Grassy Woodland Derived Native Grassland (PCT1330)	185
Broad‐leaved Peppermint ‐ Red Stringybark grassy open forest (PCT734)	160	23
Broad‐leaved Peppermint ‐ Red Stringybark grassy open forest Derived Native Grassland (PCT734)	662
Total	1,380	36

Security of Offsets

35. Within eighteen months of commencing development under this consent, unless otherwise agreed with the Secretary, the Applicant must make suitable arrangements to provide long-term security and funding for the Biodiversity Offset Areas used to retire the credits identified in condition 34 of Schedule 3, through a Biobanking Agreement under the Threatened Species Conservation Act 1995, to the satisfaction of OEH.

Rehabilitation Objectives

36. The Applicant must rehabilitate the site to the satisfaction of the Secretary. This rehabilitation must be generally consistent with the rehabilitation strategy in the EIS and must comply with the objectives in Table 9.

Table 9: Rehabilitation Objectives

Feature

Objective

Site (as a whole)

• Safe, stable and non-polluting

• Final landform integrated with surrounding natural landforms as far as is reasonable and feasible

• Final landform has minimal visual impact when viewed from surrounding land

Surface Infrastructure

• Decommissioned and removed, unless otherwise agreed by the Secretary

Land identified as the Biodiversity Area

• Conserved and enhanced with native, endemic vegetation consistent with

the objectives shown in Table 7

Riparian corridors along Chapman Creek and its tributaries

•   Stabilised and vegetated

Quarry benches

• Landscaped and vegetated using native tree and understorey species

Final Void

• Minimise the size, depth and slope of the batters of the final void

• Minimise the drainage catchment of the final void

Progressive Rehabilitation

37. The Applicant must rehabilitate the site progressively, that is, as soon as reasonably practicable following disturbance. All reasonable and feasible measures must be taken to minimise the total area exposed for dust generation at any time. Interim stabilisation measures must be implemented where reasonable and feasible to control dust emissions in disturbed areas that are not active and which are not ready for final rehabilitation.

Note:    It is accepted that parts of the site that are progressively rehabilitated may be subject to further disturbance in future.

Biodiversity and Rehabilitation Management Plan

38. The Applicant must prepare a Biodiversity and Rehabilitation Management Plan for the development to the satisfaction of the Secretary. This plan must:

(a) be prepared in consultation with OEH, DPI Fisheries and Council;

(b) be submitted to the Secretary within twelve months of commencing development under this consent and prior to commencing quarrying operations under this consent unless the Secretary agrees otherwise;

(c) provide details of the conceptual final landform and associated land uses for the site;

(d) describe how the implementation of condition 31 of Schedule 3 would be integrated with the overall rehabilitation of the site;

(e) include detailed performance and completion criteria for evaluating performance under condition 31 of Schedule 3 and rehabilitation of the site, including triggers for any necessary remedial action;

(f) describe the short, medium and long term measures that would be implemented to:

• manage remnant vegetation and habitat, including within the Biodiversity Areas and any areas that would be used to offset the biodiversity credits identified in condition 34 of Schedule 3; and

• ensure compliance with the rehabilitation objectives and progressive rehabilitation obligations in this consent;

(g) include a detailed description of the measures that would be implemented over the next 3 years (to be updated for each 3 year period following initial approval of the plan) including the procedures to be implemented for:

• maximising the salvage of environmental resources within the approved disturbance area, including tree hollows, vegetative and soil resources, for beneficial reuse in the enhancement of the offset area or site rehabilitation;

• restoring and enhancing the quality of native vegetation and fauna habitat in the biodiversity offset and rehabilitation areas through assisted natural regeneration, targeted vegetation establishment and the introduction of fauna habitat features;

• protecting vegetation and fauna habitat outside the approved disturbance area on-site;

• protecting the Chapmans Creek riparian buffer area shown on the figure in Appendix 6 in accordance with the Policy and Guidelines for Fish Habitat Conservation and Management;

• minimising the impacts on native fauna, including undertaking pre-clearance surveys;

• establishing vegetation screening to minimise the visual impacts of the site on surrounding receivers;

• ensuring minimal environmental consequences for threatened species, populations and habitats;

• collecting and propagating seed;

• controlling weeds and feral pests;

• controlling erosion; and

• managing bushfire risk;

(h) include a program to monitor and report on the effectiveness of these measures, and progress against the performance and completion criteria;

(i) identify the potential risks to the successful implementation of condition 31 of Schedule 3, and include a description of the contingency measures that would be implemented to mitigate these risks; and

(j) include details of who would be responsible for monitoring, reviewing, and implementing the plan.

The Applicant must implement the Biodiversity and Rehabilitation Management Plan as approved by the Secretary.

Biodiversity and Rehabilitation Bond

39. Within 6 months of the approval of the Biodiversity and Rehabilitation Management Plan, the Applicant must lodge a Biodiversity and Rehabilitation Bond with the Department to ensure that the Biodiversity Offset Strategy and rehabilitation of the site are implemented in accordance with the performance and completion criteria set out in the plan and the relevant conditions of this consent. The sum of the bond must be determined by:

(a) calculating the cost of implementing the Biodiversity Offset Strategy over the next 3 years for the Biodiversity Areas identified in condition 32 of Schedule 3;

(b)   calculating the cost of rehabilitating all disturbed areas of the site, taking into account the likely surface disturbance over the next 3 years of quarrying operations; and

(c)   employing a suitably qualified quantity surveyor or other expert to verify the calculated costs, or by using the Rehabilitation Cost Estimate spreadsheet tool (RCE) issued by DRG.

to the satisfaction of the Secretary.

Notes:

• Alternative funding arrangements for long term management of the Biodiversity Offset Strategy, such as provision of capital and management funding as agreed by OEH as part of a BioBanking Agreement, or transfer to conservation reserve estate can be used to reduce the liability of the Biodiversity and Rehabilitation Bond.

• If capital and other expenditure required by the Biodiversity and Rehabilitation Management Plan is largely complete, the Secretary may waive the requirement for lodgement of a bond in respect of the remaining expenditure.

• If the Biodiversity Offset Strategy and/or rehabilitation of the site area are completed (or partially completed) to the satisfaction of the Secretary, then the Secretary will release the bond (or relevant part of the bond). If the Biodiversity Offset Strategy and rehabilitation of the site are not completed to the satisfaction of the Secretary, then the Secretary will call in all or part of the bond, and arrange for the completion of the relevant works.

40. Within 3 months of each Independent Environmental Audit (see condition 11 of Schedule 5), the Applicant must review, and if necessary revise, the sum of the Biodiversity and Rehabilitation Bond to the satisfaction of the Secretary. This review must consider the:

(a) effects of inflation;

(b) likely cost of implementing the Biodiversity Offset Strategy and rehabilitating all disturbed areas of the site (taking into account the likely surface disturbance over the next 3 years of the development); and

(c) performance of the implementation of the Biodiversity Offset Strategy and rehabilitation of the site to date.

25. A Biobanking Agreement (2017 Consent Schedule 3 par 35) between the parties was admitted as Ex G, and provides for the retirement of the credits specified in Condition 34, but at the time of the hearing had not been signed, and therefore the credits had not been retired.

The Applicant proposes to modify the 2017 Consent

26. Subsequent to the granting of the 2017 Consent, the Applicant submitted an application to modify a development consent on 12 March 2018 (Ex B, Tab 2), that sought, in Section 5 ‘Describe the modification you propose to make’ of the Application Form, “to change the content of Table 7 under Schedule 3, Condition 32, so the minimum size of Biodiversity Area changes from 78.82 ha to 39.55ha.”

27. This section of the Application Form also asked “Will the modified development be substantially the same as the development that was originally approved?” to which the Applicant had responded:

“The modification only relates to the area of Biodiversity Areas specified in Condition 32. It is not proposed to modify the quarry layout and /or operational activities. The development would therefore remain substantially the same as the originally approved by LEC 2017/108663.”

28. Within Section 5 of the Application Form there was the opportunity for the Applicant to indicate that the application was for “A modification that will have minimal environmental impact”. This box on the Application Form was left blank.

29. Modification of existing consents is provided for by s 4.55 of the EPA Act:

4.55   Modification of consents—generally (cf previous s 96)

(1) Modifications involving minor error, misdescription or miscalculation A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify a development consent granted by it to correct a minor error, misdescription or miscalculation. Subsections (1A), (2), (3), (5) and (6) and Part 8 do not apply to such a modification.

Note—

Section 380AA of the Mining Act 1992 provides that an application for modification of development consent to mine for coal can only be made by or with the consent of the holder of an authority under that Act in respect of coal and the land concerned.

(1A) Modifications involving minimal environmental impact A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the proposed modification is of minimal environmental impact, and

(b)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all), and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1), (2) and (5) do not apply to such a modification.

(2) Other modifications A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if—

(a)  it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and

(b)  it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and

(c)  it has notified the application in accordance with—

(i)  the regulations, if the regulations so require, or

(ii)  a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and

(d)  it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.

Subsections (1) and (1A) do not apply to such a modification.

(3)  In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified.

(4)  The modification of a development consent in accordance with this section is taken not to be the granting of development consent under this Part, but a reference in this or any other Act to a development consent includes a reference to a development consent as so modified.

(5)    (Repealed)

(6) Deemed refusals The regulations may make provision for or with respect to the following—

(a)  the period after which a consent authority, that has not determined an application under this section, is taken to have determined the application by refusing consent,

(b)  the effect of any such deemed determination on the power of a consent authority to determine any such application,

(c)  the effect of a subsequent determination on the power of a consent authority on any appeal sought under this Act.

(6A), (7)    (Repealed)

(8) Modifications by the Court The provisions of this section extend, subject to the regulations, to enable the Court to modify a consent granted by it but, in the extension of those provisions, the functions imposed on a consent authority under subsection (1A)(c) or subsection (2)(b) and (c) are to be exercised by the relevant consent authority and not the Court.

30. Modification applications may be made, as in this case, by the person to whom the consent was granted, or given that the grant of approval is in rem, by whoever is the owner of the land at the time the modification application is made.

31. The approval which the Applicant seeks to modify is the 2017 approval - that being the only approval applicable to the subject site as the 2017 approval required the surrender of earlier approvals.

32. The modification application was made pursuant to s 4.55(8) of the EPA Act - a provision enabling an applicant to apply to the Court seeking that the Court modify a consent granted by the Court. The 2017 Consent was granted by the Court as the outcome of a s34 conciliation conference. Section 4.55(8) provides that the functions in subss 1A(c), (2)(b) and (c), are exercised by the relevant consent authority but the other provisions in s 4.55 are exercised by the Court.

33. The Applicant suggested that “arguably this is actually an application under 4.55 (1A) because it's an application involving minimal environmental impact” (Tcpt, 24 February 2021 pp 16(44)-17(3)). The basis for this is that:

“the application doesn't actually propose any environmental impact. It proposes to recalculate the biodiversity offset area, which would be protected under the consent, but it doesn't actually propose any physical change or any outcome that would be any different.”

34. Despite this, no formal application was made to change the modification application, so the only application before the Court is that originally filed.

35. When considering an application for modification of a consent, s 4.55(3) of the EPA Act requires the consent authority to ‘take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified’.

36. The consent which is sought to be modified was granted by the Court after agreement had been reached between the parties pursuant to s 34(3) of the LEC Act. The 2017 judgment, as discussed above at [7]-[12], was formulaic and does not disclose the reasons for the decision. Even post-Al Maha, when more information is included within judgments for s34 matters, the s34 conciliation process precludes the Court from considering the merits of a proposal. The reasons provided to the Court by the consent authority in the s34 agreement and jurisdictional statement fall far short of those that would be given in the Court’s reasons for a decision in a matter that went to a hearing, where the Court in its judgment will provide detailed reasons including on merits issues.

37. The Applicant was a willing party to the s34 agreement including the conditions.

38. Section 4.55(2)(a) of the EPA Act sets a jurisdictional prerequisite that the Court be satisfied that the development for which consent is sought would, if the application were upheld, be ‘substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all)’.

39. If I am not so satisfied, I would not have jurisdiction to grant consent. Where there are prerequisites to be satisfied before I have jurisdiction to consider the matter further, these would normally be addressed first in the judgment, because if they are not satisfied the appeal would have to be dismissed. However, in order to decide whether the development, if approved, would be substantially the same requires consideration of what the changes proposed are, and the arguments as to why they would result in an outcome which is substantially the same.

40. If the application was upheld, then changes would be made to the 2017 conditions. However, if that were not to be the outcome, the 2017 Consent would stand, and the quarry would continue to operate under the conditions annexed to the Consent.

41. Section 4.55(3) of the EPA Act requires that I must take into consideration the relevant matters referred to in s 4.15(1):

4.15   Evaluation (cf previous s 79C)

(1) Matters for consideration—general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application—

(a)  the provisions of—

(i)  any environmental planning instrument, and

(ii)  any proposed instrument that is or has been the subject of public consultation under this Act and that has been notified to the consent authority (unless the Planning Secretary has notified the consent authority that the making of the proposed instrument has been deferred indefinitely or has not been approved), and

(iii)  any development control plan, and

(iiia)  any planning agreement that has been entered into under section 7.4, or any draft planning agreement that a developer has offered to enter into under section 7.4, and

(iv)  the regulations (to the extent that they prescribe matters for the purposes of this paragraph),

(v)    (Repealed)

that apply to the land to which the development application relates,

(b)  the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality,

(c)  the suitability of the site for the development,

(d)  any submissions made in accordance with this Act or the regulations,

(e)  the public interest.

42. Section 4.15(1)(a)(i) requires that the consent authority consider the provisions of any environmental planning instrument which includes the applicable Local Environmental Plan (LEP) and any relevant State Environmental Planning Policies (SEPPs).

Reducing the offset requirements after the 2017 judgment

43. The Applicant now seeks to reduce the area of offset required for a number of reasons, one of which is that the quantum of offset required was miscalculated, because the Applicant considered that there was no robust methodology for calculating the areas of offset to be provided, at least, there was by 2017.

“…that because the way in which this was done at the time, there was no robust methodology for calculating the areas of offset to be provided in 2008, at least, there was by 2017.

What was agreed between the applicant and the Minister was an area of 18 times the area of EEC vegetation to be cleared, and the conclusion then was as a consequence of that, “The department was satisfied the flora and fauna impacts can be adequately compensated.” Well, it was more than adequate, one would have thought. And then on p 237, in the third paragraph of the conclusion, “An offset strategy has been proposed.” And again, this represents an offset of over 18 times the area of EEC vegetation that would be cleared by the proposal

So, there are two aspects to it. First is the quality of the vegetation that was removed, which everybody seems to agree was pretty poor. And secondly, the quantum of offset required to replace it, which, as set by the 2008 original approval, was 18 times that which was removed, regardless of its quality.

And the proposition the applicant puts is that come 2017, although it didn't pursue this as part of the appeal that was determined by the Court in 2017, it has decided to pursue it now through a modification application. The 2017 consent perpetuated the same vice that the 2008 approval had perpetuated, and that was an error in the way in which the communities were categorised, but also a calculation of offsets, which was completely devoid of any rational basis…”

(Tcpt, 24 February 2021, pp 21(35)-22(9) (Mr Pickles, Senior Counsel for the Applicant))

44. In the EIS prepared by EMM for the State significant development application (Ex C Tab 1):

“In its EIS, Gunlake put forward a position that this 78.82‑hectare requirement was excessive and suggested there was an excess of 46.9 hectares that could be used to make the offset requirements for the current project. However, following consideration of OEH’s views, particularly with regard to the offsetting principle that offsets must be additional to other legal requirements, Gunlake advised in its RTS [Response to Submissions] that it accepted the full 78.82 hectares...”

(Tcpt, 24 February 2021, p 23(20-25) (Mr Pickles))

45. The Applicant had therefore agreed to accept a requirement for an offset area of 78.82 ha, even though it considered the area was excessive and was the result of a miscalculation. Mr Pickles said that was because the Applicant had adopted this position in order to secure agreement on other components of the application.

“…However, that was a matter which, for the sake of peace, the applicant accepted in order to prosecute its appeal, for the purposes of getting the consent that it wanted in relation to the additional quarrying quantity…”

(Tcpt, 24 February 2021, p 23(38-40) (Mr Pickles))

46. The Applicant therefore agreed to provide 78.82 ha of offset, which he considered was 46.9 ha larger than what he considered the appropriate area should have been, in order to secure approval for the increase in output from the quarry. This was a tactical decision by the Applicant, carrying the risk that he might be ‘hoist with his own petard’ (Prince Hamlet in Hamlet Act 2, Scene 4).

47. The difference between the parties in relation to the area of offset required was made clear in the following exchange between Mr Pickles and Ms Treweek.

“PICKLES: Ms Treweek, in para 23 of the joint report, you contend that the offset imposed in 2008 is not excessive for the time, as it was standard to use lower quality vegetation but larger areas, therefore resulting in a net gain to the environment. Does it follow as a consequence of that, that if one does undertake a more robust methodology, that one might now accept the proposition that at this time one might not seek to achieve larger areas of lower quality vegetation, but rather achieve a net gain through better quality areas of vegetation according to a robust methodology.

WITNESS TREWEEK: Yes, I think so. Essentially, the area that was put aside was a large area to cater for it, because it was lower quality habitat. However, you would need an extra area on top of the area that's already been notified to say that you would get that gain.

PICKLES: But it must follow, mustn’t it, that if now one is capable of making an assessment through the more robust methodology, that one could identify an area of potentially better-quality vegetation that might be more connected to other vegetation, that will achieve a better overall outcome than relying upon two separate areas that had acknowledged poor quality vegetation within them.

WITNESS TREWEEK: Potentially, yes.

PICKLES: You seemingly then agree, as I understand it from para 27, that are you in effect saying accepting the proposition that it would at this juncture be not unreasonable to identify revised offset areas that are based upon the FPA or BBAM, rather than simply leaving them as they are?

WITNESS TREWEEK: Revised offset areas above the area that was put forward in the modification.

PICKLES: Yes.

WITNESS TREWEEK: That's correct.

PICKLES: So, it really then comes down to a question, so far as you're concerned, of whether or not one accepts the proposition that that which was removed was Box-Gum Woodland or Broad‑leaved Peppermint, in which case that affects the outcome of the calculation that you finally undertake.

WITNESS TREWEEK: Correct.

PICKLES: That's really the nub of the dispute between you and Mr Garvey.

WITNESS TREWEEK: Correct.”

(Tcpt, 24 February 2021, pp 45(26)-46(20))

48. When the Threatened Species Conservation Act 1995 (TSC Act) first came into effect there was little guidance, either within Australia or internationally, on how to consider how residual impacts of proposed developments on threatened ecological communities were to be offset, after appropriate steps had been taken to avoid, minimise or restore impacts on a site (see B.A. McKenney & J.M. Kieseker, ‘Policy Development for Biodiversity Offsets: A Review of Offset Frameworks’ (2010) 45 Environmental Management 165-176). Offset policies had been developed in many jurisdictions around the world, including by both the Commonwealth and individual states in Australia. The oldest formal legislated program for offsetting was established in the USA specifically for wetlands under the Clean Water Act (33 U.S.C. §1344 (1972)).

49. Despite the large number of sites in the USA where offsets had been required as part of the approval process for developments, the success of offsets has been variable (R.F. Ambrose, ‘Wetland mitigation in the United States: assessing the success of mitigation policies’ (2000) 19 Wetlands (Australia) 1-17).

50. As the use of biodiversity offsets has spread globally, a substantial literature has been produced both by supporters of the concept and by those, who if not actually opposed to offsets query whether or not there are adequate data to assess whether or not offsets have delivered the promised benefits. One aspect of our ability to determine success is that the timeframe needed for determining success may be longer than any requirement in conditions for the period of monitoring. (See for example Wilkins et al. who studied restoration of Cumberland Plain Woodland - another Critically Endangered Ecological Community (CEEC) – S. Wilkins, D.A. Keith & P. Adam, ‘Measuring Success: Evaluating the Restoration of a Grassy Eucalypt Woodland on the Cumberland Plain, Sydney, Australia’ (2003) 11 Restoration Ecology 489-503). There are examples of some communities where success has been demonstrated, or at least the trajectory of change is as predicted, but there are many examples where at least as yet demonstration of success has been elusive.

51. However, the Biodiversity Conservation Act 2016 (BC Act) establishes an offset policy and the circumstances in which it is required to be applied, so concerns about whether or not the offset proposed will be successful are not an issue for the Court - however, questions about the location of the offset, the calculations determining the size of the offset and any conditions required for the long-term management and monitoring of the offset can appropriately be asked.

52. It will be necessary to consider the basis for the 2008 decision and the argument advanced in the modification application to support the reduction in the biodiversity offset area. The hearing was not, as would normally have been the practice, preceded by an onsite inspection in the presence of the parties and their experts. COVID-19 restrictions precluded this occurring. However, the value of field inspection would have been limited because it is no longer possible to view the original condition of the area which since 2008 has become the quarry pit and associated facilities. It was the assessment of the impacts of what was proposed in 2008 on what was said to be the vegetation affected that determined the area then proposed as the necessary offset. As the pre-2008 state of the area impacted by the opening of the quarry pit, the building of facilities and roads from 2008 onwards can no longer be directly observed, recourse to records and data from before 2008 is necessary and it is the availability and accuracy of that data from that period that formed the disagreement between the parties. Neither of the biodiversity experts who gave evidence, Mr Garvey for the Applicant and Ms Treweek for the Respondent had observed the site before 2008. Ms Treweek (curriculum vitae in Ex 3) has had long experience in the assessment of threatened species and ecological communities (under the provisions of the TSC Act and the BC Act) for the relevant agency (under a series of name changes) within the region but she had not visited the subject site until after the appeal had been instituted. Mr Garvey, the Applicant’s ecologist has had a career as an environmental consultant on a variety of projects as shown by his curriculum vitae in Ex D but his direct involvement with the subject site has only been since 2018. He had not been involved in the preparation of the EIS which had been submitted with the 2016 application.

53. The experts had conferred, including on site, and had prepared a Joint Report (Ex 4). Subsequent to the preparation of the Joint Report, the Applicant had prepared a video of the site taken from a drone. Ms Reid, counsel for the Respondent, objected to the presentation of the video on two grounds - that an inspection of the whole of the site was necessary to understand the vegetation rather than viewing imagery obtained from a drone of only parts of the site, and secondly that the video had not been taken until after the experts had conferred. Ms Reid considered that the video should have been available and discussed at the joint conferencing rather than appearing at the start of the hearing (Tcpt, 24 February 2021, p 1(39-49)). It was agreed that the experts could view the video outside the Court prior to a decision being made as to whether it could be shown. Whether or not the video assists the Court in determining what vegetation types may have been present in 2008 is a different question to whether or not the video should be shown.

The drone video

54. The experts viewed the video outside of the Court. Ms Reid agreed to it be shown (Tcpt, 24 February 2021, p 32(4-5)). The USB containing the video became Ex K.

55. The video does not permit identification of species, either of plants within the ground layer or of the canopy trees. Both Ms Treweek and Ms Reid were critical of the coverage of the video, which only encompassed part of the subject site. However, the imagery enhanced the information shown in the earlier aerial image included in the 2017 Consent and reproduced at [18] above. The drone vision provided a closer view of the area and allowed the relative extent of DNG with canopy absent and areas with some canopy trees at varying densities across the landscape to be shown. Given the pattern of denser areas of canopy (although still an open canopy) and larger areas with sparse canopy, within places the trees being very widely separated, the impression given of the whole area of vegetation from records of sample plots would be dependent on the number, size and location of the samples, but we do not know the sampling strategy employed in the Ecotone/Biosis studies, although impressions gained during the fieldwork, along with consideration of the data collected, will have informed Mr Rose's conclusions as to the occurrence of Box Gum Woodland on the subject site.

56. While the original consent was granted in 2008, the investigation of the vegetation and ecology of the site had taken place earlier in January 2006. The fieldwork for the original study by Ecotone was conducted over two days, January 15 and 16, 2006. This was within a period of drought. The drought would have been unlikely to have affected the abundance of tree species within the canopy layer, or the ease of identification to species. However, it may have affected the presence, abundance and identification of ground layer species.

54. The Applicant’s supporting documentation for the 2008 Consent included a Statement of Environmental Effects prepared by Olsen Environmental Consulting Pty Ltd, with the biodiversity and ecology component being prepared by Ecotone, for which the relevant staff ecologist was Mr Stefan Rose. The modification applications were prepared by the same team, except that Ecotone had merged into Biosis for whom Mr Rose continued in employment.

The Applicant’s grounds for seeking to modify the 2017 Consent

58. Ms Reid summarised the position of the Applicant as:

“In a nutshell the applicant seeks to in effect delete condition 32 and replace it with a fresh condition, which recalculates the biodiversity offsets in a form that I'm just not sure about at the moment. So, I won't make any particular comment on that except to say that the application is to make them in accordance with contemporary calculators rather than recognising the history of where those offsets ultimately came from and formed part of the development consent.

Then the application is also put on a second basis, and that is to reconsider the mapping of the Box-Gum Woodland across the site. And that comes with some real problems for the applicant. And that is that the area in which the applicant asks you to reconsider the mapping is the area that has been cleared for the quarry. So, the only evidence of the mapping of that area is in those historical documents that I took you to in the Ecotone Report.

What the department says - or The Minister for Planning - says in relation to the application, is that firstly, it disturbs the basis upon which the approval was sought and given. And that had been after an assessment of the application and as a threshold question, the Court needs to first consider whether this application will be substantially the same development as that that was originally approved in 2017. And on the respondents case, the answer to that is no. And you need not go any further. If you do go further, then there is a separate legal question, which is … contention 1A in the statement of facts and contentions, and that is that effectively, you cannot sever condition 32 and replace it with a new condition 32 because it changes the nature of the consent. So, it's a slightly different way of approaching what is now contention 1B.

And then thirdly, if you did reconsider the application, then you wouldn't disturb the finding that there had been Box-Gum Woodland in the cleared area, because the only evidence, the only real evidence that you have on the ground is the evidence in the Ecotone Report. And you wouldn't go assuming matters to reclassify that community at this point in time. And then as an ultimate position in the joint report, ultimately, if you find against the respondent, then there is an agreement as to how you might calculate those credits. But it appears that the experts have a little bit more work to do with respect to the ultimate number and what that condition looks like.

(Tcpt, 24 February 2021, pp 15(40)-16(26))

59. The Applicant advanced three grounds which it said supported the case for modification of the 2017 Consent:

1. that the vegetation cleared under the 2008 Consent was not the Box Gum Woodland EEC but was a different type of vegetation, namely Broad-leaved Peppermint-Red Stringybark (Tcpt, 24 February 2021, p 20(15-20));

2. that there had been a change in the methodology for the calculation of Biodiversity Offset Areas.

“…But also, we have to focus upon the consent as it was granted in 2017, not the consent as it was granted in 2008. And as at 2017, there were methodologies available whereby the biodiversity offset areas would be calculated in accordance with a recognised and robust system of calculation. That being, the documents which the Minister has included in their bundle - the framework for biodiversity assessment and the biobanking assessment methodology.

That didn't happen in this case for no other reason than a matter of historical fact. That the Minister at the time, or the department at the time was not prepared to entertain a reconsideration of those matters. But that doesn't preclude the applicant now seeking the applicant, seeking to have that matter reagitated, because as a matter of fact as of 2017, there was a methodology available and if that methodology had been applied, the applicant says quite a different outcome would have been seen in the consent…”

(Tcpt, 24 February 2021, p 17(36-50))

The Framework for Biodiversity Assessment (FBA) underpinned the Biodiversity Offsets Policy for Major Projects. [1] The BioBanking Assessment Methodology (BAM) is the required methodology for the purposes of assessment under the BC Act (Pt 6 Div 2) and Biodiversity Conservation Regulation 2017 (Pt 6 Div 6.1);

3. that the definition of Box Gum Woodland had changed since 2008 and that the new definition should apply in the assessment.

   1. NSW Office of Environment and Heritage, Framework for Biodiversity Assessment: NSW Biodiversity Offsets Policy for Major Projects (September 2014, ISBN 978-1-74359-754-5)

60. Broad-leaved Peppermint-Red Stringybark is the name given to a recognised vegetation type, but not one included on the schedules of Threatened Ecological Communities. Although not a Threatened Ecological Community, loss of an area of Broad-leaved Peppermint-Red Stringybark would still incur a credit requirement, albeit fewer than would be the case for the same area of Box Gum Woodland.

61. The first and third grounds (at [59(1)] and [59(3)]) relate to the definition and recognition of Box Gum Woodland. Before considering the evidence relating to the site, the definitions and description of the Box Gum Woodland will be discussed.

62. The Scientific Committee established by the TSC Act made two Final Determinations for the Box Gum Woodland – in 2002 [2] and 2011[3] . The 2020 Final Determination was made under the BC Act. [4]

    2. Scientific Committee, ‘Final Determination: White Box Yellow Box Blakely’s Red Gum Woodland – Endangered Ecological Community Listing’ (15 March 2002)

    3. Scientific Committee, ‘Final Determination: White Box Yellow Box Blakely’s Red Gum Woodland – Determination to make a minor amendment to Part 3 of Schedule 1 of the Threatened Species Conservation Act’ (2 December 2011)

    4. Scientific Committee, ‘Final Determination: White Box – Yellow Box – Blakely’s Red Gum Grassy Woodland and Derived Native Grassland in the NSW North Coast, New England Tableland, Nandewar, Brigalow Belt South, Sydney Basin, South Eastern Highlands, NSW South Western Slopes, South East Corner and Riverina Bioregions – Critically Endangered Ecological Community Listing’ (17 July 2020)

63. The 2011 Final Determination was for a minor amendment to make changes to the references to the Interim Biogeographic Regionalization of Australia (IBRA) There were no changes to the description and recognition of the community.

64. What is important to consider is whether or not there were changes between the original 2002 Final Determination and the 2020 Final Determination such as to affect the description of the ecological community.

65. In the 2002 Final Determination for the White Box Yellow Box Blakely's Red Gum Woodland - Endangered Ecological Community, the Scientific Committee found that:

“1 White Box Yellow Box Blakely's Red Gum Woodland is the name given to the ecological community characterised by the assemblage of species listed in paragraph 3. White Box Yellow Box Blakely's Red Gum Woodland is found on relatively fertile soils on the tablelands and western slopes of NSW and generally occurs between the 400 and 800 mm isohyets extending from the western slopes, at an altitude of c. 170m to c. 1200 m, on the northern tablelands (Beadle 1981). The community occurs within the NSW North Coast, New England Tableland, Nandewar, Brigalow Belt South, Sydney Basin, South Eastern Highlands and NSW South Western Slopes Bioregions.”

66. There is no doubt that the subject site falls within the geographic area specified by the Scientific Committee. The ecological community has a wider distribution beyond NSW, occurring from southern Queensland into Victoria, and also within the ACT.

67. The 2002 Final Determination described the community as:

“2. White Box Yellow Box Blakely's Red Gum Woodland includes those woodlands where the characteristic tree species include one or more of the following species in varying proportions and combinations - Eucalyptus albens (White Box), Eucalyptus melliodora (Yellow Box) or Eucalyptus blakelyi (Blakely's Red Gum). Grass and herbaceous species generally characterise the ground layer. In some locations, the tree overstorey may be absent as a result of past clearing or thinning and at these locations only an understorey may be present. Shrubs are generally sparse or absent, though they may be locally common.”

68. Paragraph 3 provided a list of characteristic plant species by which the community could be recognised. As is the case with all ecological community determinations, the Scientific Committee included a caveat:

“The total flora and fauna species list for the community is considerably larger than that given above, with many species present in only some sites or in very small quantity. In any particular site not all of the assemblage listed above may be present. At any one time, seeds of some species may only be present in the soil seed bank with no above-ground individuals present. The species composition of the site will be influenced by the size of the site, recent rainfall or drought conditions, its disturbance history and geographic and topographic location. The community is an important habitat for a diverse fauna (vertebrates and invertebrates), but detailed records are not available from most stands and the invertebrate fauna is poorly known.”

69. This caveat recognises that although the species list provided in par 3 is of vascular plants, an ecological community is more than simply a plant community type but necessarily also includes a large, if very poorly known, fauna. Interactions between flora and fauna are essential for the continuing existence and functioning of the ecological community.

70. There is no minimum number of the listed characteristic species required to be present for a particular area to be regarded as supporting a threatened ecological community (see Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 at [104] in which the Court rejected the applicant’s submissions that all species listed in the Final Determination (in that instance the species list for Eastern Suburbs Banksia Scrub) had to be present. The Court of Appeal in VAW (Kurri Kurri) Pty Ltd v The Scientific Committee (Established under s127 of the Threatened Species Conservation Act 1995) (2003) 55 NSWLR 631, 128 LGERA 419; [2003] NSWCA 297 recognised the inherent variability in species composition within a threatened ecological community meant that some vagueness in the description of ecological communities was inevitable, but this did not affect the validity of final determinations.

71. The Final Determination in 2002 recognised there could be variation in the number of plant species recordable within Box Gum Woodland in both space and time but pointed out the propagules may be present below ground. The Final Determination also acknowledged that an EEC included fauna, and, in par 13, listed fauna species of conservation significance, a relatively short list restricted to vertebrates, which might occur in some stands of Box- Gum Woodland, acknowledging that the list was not comprehensive.

72. The 2020 Final Determination was made under the BC Act. Items listed on the schedules of the TSC Act were transferred to the BC Act, and a Scientific Committee, similarly constituted to the Scientific Committee under the TSC Act maintains the schedules under the BC Act. The 2020 Final Determination was to list White Box Yellow Box Blakely's Red Gum Grassy Woodland and Derived Native Grassland as a Critically Endangered Ecological Community.

73. The change of name to include Derived Native Grassland (DNG) might suggest that there had been a change in the description of the community. However, inclusion of DNG brings the name of the community in NSW into line with the name of the community listed, also as Critically Endangered, under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) but DNG had always been included, at least implicitly, in the concept of the community in the 2002 Final Determination.

74. In the 2002 Final Determination, pars 8-11 discuss the extent of disturbance and alteration within Box Gum Woodland. Stands may have been reduced to a few trees scattered within cropping land or to stands with a reasonably intact ground layer but with no trees. The Scientific Committee had acknowledged from the first listing in 2002 that disturbed remnants could be of conservation value and specifically stated in par 11 that these disturbed remnants (which would have included what is now referred to as DNG) are still to be regarded as the EEC, so that the inclusion of DNG in the name of the listed community since 2020 does not reflect any change to what was included within the scope of the community in the 2002 listing.

“11. Disturbed remnants are still considered to form part of the community including remnants where the vegetation, either understorey, overstorey or both, would, under appropriate management, respond to assisted natural regeneration, such as where the natural soil and associated seed bank are still at least partially intact.”

75. The 2020 Final Determination characterised the community by a listed assemblage of species in par 1.1. This list differs in some ways from that in par 3 of the 2002 Final Determination. Some of these changes reflect taxonomic or nomenclatural changes and still refer to same entities as were included in the 2002 list. There are also some deletions, and some additions, reflecting greater knowledge accumulated over two decades.

76. However, given that any one stand is unlikely, at any one time, to support more than a small proportion of the total number of characteristic species listed in the Final Determination, no stand assigned to the EEC on the basis of the 2002 Final Determination would fail to be assigned to the CEEC on the basis of par 1.1 in the 2020 Final Determination.

77. The Scientific Committee emphasised in par 2.2 of the 2020 Final Determination that:

“2.2 It is the intent of the NSW Threatened Species Scientific Committee that occurrences of the ecological community (both recorded and as yet unrecorded, and independent of their condition) that occur within these bioregions be covered by this Determination.”

78. Under the EPBC Act listing of Box Gum Woodland for DNG to be recognised as part of the Box Gum Woodland a patch must be more than 0.1 ha and contain more than 12 native ground layer species including at least one important species. [5] Under the 2020 Final Determination neither a minimum number of species required for eligibility nor a patch size limit are specified. The Conservation Assessment by Tozer and Simpson (dated 22 June 2020) which accompanies the Final Determination states on p 5:

“These criteria do not apply under the NSW Biodiversity Conservation (BC) Act (2016). As such, the area of the community remaining which meets the definition of the community under the EPBC Act maybe higher than is the case under the EPBC Act”. [6]

5. See Minister for the Environment and Heritage (Cth), Inclusion of ecological communities in the list of communities under section 181 of the Environment Protection and Biodiversity Conservation Act 1999 (20 December 2005).

6. Mark Tozer and Christopher Simpson, ‘Conservation Assessment of White Box – Yellow Box – Blakley’s Red Gum Grassy Woodland and Derived Native Grassland’ (NSW Threatened Species Scientific Committee, dated 22 June 2020)

79. Ms Reid cross-examined Mr Garvey on his reasons for not accepting the assignment by both Ecotone and Biosis of woodland vegetation and DNG present on the subject site in 2006 to the Box Gum Woodland EEC. It is necessary to quote extensively from the transcript in order to understand the basis of the Applicant’s position.

“REID: Mr Garvey, you weren't involved in the original Part 3 application assessment.

WITNESS GARVEY: No, I wasn’t.

REID: And you weren’t involved in the modification 2 application to the Part 3A approval.

WITNESS GARVEY: No, I wasn’t.

REID: You weren’t involved in the 2017 application assessment.

WITNESS GARVEY: No, I wasn’t.

REID: The first time you visited the site was in 2018.

WITNESS GARVEY: That's correct.

REID: And on your first site inspection, the footprint of the quarry had been cleared.

WITNESS GARVEY: That's correct.

REID: That's the area which you now say likely did not sustain the Box-Gum Woodland community.

WITNESS GARVEY: That's correct.

REID: Can I take you to tab B of the class 1 application.

WITNESS GARVEY: Is that volume 1 or 2?

REID: Volume 1, exhibit B tab V.

WITNESS GARVEY: Yes.

REID: You're aware that the 2017 application relied upon the findings in the Ecotone report dated February 2008.

WITNESS GARVEY: Yes.

REID: Can I take you to p 24. Be aware from that first paragraph on p 24 that the author of the report had undertaken a flora field study which included the now cleared area.

WITNESS GARVEY: That's correct.

REID: And you would agree with me that the report notes that within the Box-Gum Woodland areas identified in the report, at least two 400 square metre quadrats were examined, and species recorded.

WITNESS GARVEY: I would. There’s no indication in the report where those quadrats were undertaken though.

REID: And not having seen that area in person, you would have to accept the advice in the Ecotone report at table 7, that the description of the Box-Gum Woodland was that set out as community 2 on page 29 of the report?

WITNESS GARVEY: I think that's a description of community 2, yes.

REID: Can I take you to your joint report and exhibit 4 in the proceedings, para 34 which is on p 5.

WITNESS GARVEY: Yes.

REID: In that paragraph, you speak in the third person, but they are your words.

WITNESS GARVEY: Which paragraph?

REID: Para 31.

WITNESS GARVEY: That's correct.

REID: And you say that you argue that the areas of community 2 mapped by Ecotone should not have been classified as Box-Gum Woodland.

WITNESS GARVEY: I argue that the areas that extend across the site should not have been and that - yes, means the mapping by Ecotone is incorrect.

REID: And when you say “argue”, you're arguing that because you're advocating a position on behalf of your client.

WITNESS GARVEY: I’m advocating a personal position and view based on my expertise.

REID: I take you to para 34 of your joint report.

WITNESS GARVEY: Yes.

REID: You place some emphasis on the final determination of 2002 indicating that the characteristic tree species of Box-Gum Woodland should include white box, yellow box or Blakely’s red gum.

WITNESS GARVEY: Yes.

REID: And you agree that the Ecotone report in table 7 recorded occurrences of Blakely's red gum in community 2.

WITNESS GARVEY: Yes, and yellow box.

REID: And that's the eucalyptus melliodora.

WITNESS GARVEY: Correct.

REID: And they were the dominant species recorded in the community.

WITNESS GARVEY: I think their species, the occurrences they use the words in their report “present” on p 29 and discuss that they’re modified versions of the EEC on p 36.

REID: Can I take you to p 29 of the Ecotone report, to table 7.

WITNESS GARVEY: Yes.

REID: Sorry, back to the class 1 application exhibit B tab B p 29. In fact, in the fourth column, the dominant species in the tree layer include eucalyptus melliodora and the Blakely’s red gum. Would you agree with that?

WITNESS GARVEY: I don’t see those words.

REID: You are looking at p 29.

WITNESS GARVEY: Yes.

REID: The table is headed, Community 2 Woodland - Open Woodland.

WITNESS GARVEY: Sorry, table 4 Dominant Species eucalyptus melliodora, eucalyptus blakelyi, eucalyptus macrocarpa, eucalyptus eugenioides and eucalyptus cinerea.

The reference I put to that is exhibit 6 and Ms Treweek’s letter to Phillipa Duncan, the senior planning officer at the major projects in November 2014. It identified that the impacts occurred in Box-Gum Woodland, albeit relatively low condition, and a recognition in response to that letter, the document that I added this morning to exhibit B behind tab G, being the Biosis response to the OEH comments, underscores the fact that on p 2 - it’s behind tab G of exhibit B, and it's the Appendix A Biosis Response to OEH comments. And p 2 of that letter gives some indication of the approach to which Ecotone or Biosis as they became, took to the vegetation in 2008. They said:

“Hence to account for the residual uncertainty regarding how much of the grassland areas would constitute EEC, a highly conservative approach was adopted for the current assessment, as explained below, in which the entire impact area was assumed to consist of EEC. This approach is in line with the correspondence received from DECC during the 2008 assessment, in which Ecotone was advised that parts of cleared open grassland could nevertheless fall within the definition of the EEC and should be included as part of the vegetation impacts for the purposes of offsetting. Accordingly, a worst case scenario in terms of the impact of the EEC was assumed.”

That evidence combined with Mr Garvey’s assessment of the vegetation extant in Area 2, as shown on the map in the joint report in exhibit 4 on p 8, tends to indicate that all of the mapping that Ecotone did of the Box-Gum Woodland was based upon that highly conservative basis of assuming that that vegetation community existed, whether or not it truly exhibited the characteristics or the three characteristic trees that make up that community.”

(Tcpt, 25 February 2021, pp 109(12)-110(15))

248. As extensively discussed earlier, the number, and identity, of the tree species is not an absolute requirement for allocating stands of vegetation to Box Gum Woodland. The condition of many stands is ‘poor’ but the conservative approach adopted by Ecotone/Biosis. which followed recommendations from the Department of Environment and Climate Change (DECC) is an approach which has the potential, with management, to increase the area of vegetation granted long term protection.

249. The future security of management was addressed by Mr Pickles:

“And then of course, the proposition comes down to this; the other dispute is, should one assume a management case or a non management case for the purposes of calculating the credits? Now, our proposition is quite simply that there is a way of guaranteeing that actions will be undertaken because the conditions, even as they stand, require the entry into some kind of management agreement for the offset areas, which would guarantee their perpetual protection and management.

So, one has to assume, based upon the existing condition 33, never mind about the applicant's amended version, that there would be an agreement and there would be active management actions incorporated into it. It doesn't stand to reason that one would assume that credits would be calculated, and one would leave it to future negotiation of an agreement to determine what those outcomes would be when plainly the existing consent and the consent which the applicant contends for, would specify a particular area by map, which is to be retained. It's an area which is under the control of the proponent and the condition 33 would require some active management be taken.”

(Tcpt, 25 February 2021, p 111(24-40))

250. Ms Reid saw the outcome argued for by the Applicant differently:

“…But ultimately, what the applicant is seeking is to modify the consent by firstly amending the definition in the consent of biodiversity offset strategy. So, we are fundamentally changing the strategy that the consent was based upon. And that is by incorporating the new documents in the Statement of Environmental Effects into the [consent].

So, you will recall that condition 2A requires the proponent to carry out the development in accordance with the EIS and the conditions of consent. And the EIS is now supported as amended by the statement of environmental effects as part of this application. Deletion of condition 32 is ultimately what is proposed, so the applicant frames it as a modification of condition 32. It is not that. What this application is, is deletion of condition 32 and the replacement with a brand new 32. The only thing that remains similar between those two conditions is that they are both numbered number 32. So, that is where contention 1A comes from, and that is that it is a deletion of the condition and insertion of the new condition. It is still a modification of the consent.

Then thirdly, the applicant seeks to amend now condition 33. So, this application was originally put on the basis that condition 33 would not change. And now the applicant seeks to modify condition 33, which is the long term security for the land and there is on the respondent’s position an erosion of the security of the biodiversity values for the land. And that erosion is now, by what appears to be - but we still haven't seen the final condition - a conservation agreement rather than a stewardship agreement for which would otherwise require upfront funding, so that we could be satisfied that there is going to be a long term maintenance of the biodiversity values of the land, and that's a really important change in the construction of this development consent.”

(Tcpt, 25 February 2021, p 112(1-28))

“…The applicant appears to put its application on two bases, and that is firstly that it seeks to recalculate the biodiversity offsets required by the impacts arising from the quarry to take advantage of a contemporary offset scheme, which would approximately halve the commitment previously provided by the consent.

And then secondly, the applicant, despite having cleared the side of the subject quarry some time ago, seeks to reclassify the vegetation that was removed, as likely being Broad leaved Peppermint/red stringybark, rather than the Box-Gum Woodland, without any direct evidence and by inferring what might have been located in that area before it was cleared. And that really is a fundamental flaw in the applicant’s application…”

(Tcpt, 25 February 2021, p 113(8-19))

251. Ms Reid submitted:

“The statement of environmental effects fundamentally misunderstands the test of substantially the same development, and it was put slightly differently by reference to para 10 of the Minister's statement of facts, that the application relates only to the biodiversity area specified in condition 32. It is not proposed to modify the quarry layout or activities described in chapters 2 and 3 of the extension project, which will be unchanged. The development would therefore remain substantially the same as that originally approved by the Court. Now that is not a test. Just because if you don't change the quarry operations, doesn't mean that on a qualitative and quantitative basis that you haven't fundamentally changed the application before the Court. And to be fair, it understates the requirement to conserve the environmental values of the site.

On a quantitative assessment, the applicant seeks to remove the obligation and its earlier commitment, and you will recall that because this was part of an EIS, there are a statement of commitments and those statement of commitments from part of the EIS. And in a commitment to the respondent and to the Court when granting approval, this applicant agreed to protect, maintain and enhance an area of 78.8 hectares of land as biodiversity areas, and instead to reduce that obligation to an area of land comprising about half of that area. You've been taken to the visual of it, but there is a convenient summary of that in the statement of the facts, exhibit 1 in the proceedings. You can see Appendix 5, which is figure 1 on p 3 of that document, sets out the area of biodiversity offset - Area 1 and Area 2.

On this application, you go from just under 80 hectares of land to about 50 hectares of land. So, you excise off Area 1 and then you add some small components to biodiversity area 2. And this is the area that miraculously found some Box-Gum Woodland overnight to make sure that the areas are going to be the slimmest that they can possibly be. This is not an area of manipulating the data. There was a considered and concerted effort and commitment to provide biodiversity areas to offset the impacts of the quarry on the initial application, and it did so by this vast area. Ms Treweek’s evidence in relation to para 68 in the joint report, where she agrees that you might be able to have some better quality land, doesn't say that just excising off biodiversity area 1 is going to be enough. She says you would need to find better quality area.

Now, this application doesn't find a better quality area. It keeps biodiversity area 2, and then it adds a little bit around the side, including an area that needs to have excised from it, development area with access roads through it. On a qualitative assessment of the application, the proposal seeks to modify the consent by effectively cherry picking between contemporary assessment methods for offset of clearing of land and those considered the time of the grant of consent.

And it's clear that at the time of the grant of consent, the similar modern biodiversity calculators were in force. And this is a really important point. So, there wasn't an error at that time. The consent was granted, and the statement of commitments was made on the very clear understanding that the modern calculators were enforce and they may have given a lesser area, but nonetheless to offset the impacts of the development biodiversity area 1 and 2 were proposed to protect, maintain and enhanced the ecological values on the site. And that was one of the fundamental basis upon which the consent was granted, and you cannot assume that that area offset only the endangered ecological communities.

So, all that this application does is focus on the endangered ecological communities and the mapping of them and plugs in those numbers to spit out a number. And this is where, and it's only one example, of why you are effectively upsetting the balance of assessments by not acknowledging or making any assessment of the other biodiversity values on the site.

And that's where the applicant has failed to undertake any fauna assessment. You will recall in the witness box that an example of the wider ecological assessment was put to Mr Garvey, and that was the Speckled Warbler assessment. Mr Garvey agreed that prior to clearing the land, the Speckled Warbler had been recorded nearby - and I've provided you with the references in the application as to where those documents are - and that the biodiversity offset areas were provided under the consent to not only offset the EEC of Box-Gum Woodland, but to increase the habitat.

So, it wasn't that there was an intention to keep habitat of the Speckled Warbler in Area 1, it was that there was a concerted effort and a basis of the consent documents, to increase the habitat of the Speckled Warbler on the site. What this does is reduce that area of land by about 30 hectares to take away habitat rather than increase the habitat. That is a fundamental change in the basis upon which the consent otherwise operated.

The assessment of the fauna or the lack of assessment, further highlights the modification will be qualitatively and quantitatively, different than what was approved. But relevantly, the biodiversity offset area is intended to increase the habitat of the available to the Speckled Warbler, and you'll see that reference at 21A. When assessing the original biodiversity offset area under the 2008 consent, the consent authority accepted that the proposed offset rehabilitation areas would increase the extend of habitat available to the Speckled Warbler in the area.

You don't read that assessment report as forming part of the application. What you do read is the commitment in the ecological reports to increase that habitat, because that forms part of the consent. The reference to the 2008 assessment doesn't confound or conflate the consents, rather the 2017 consent purposely took those matters into account on the basis of the quarry activities has commenced, the lands have been cleared, and it was appropriate to continue to secure the initial biodiversity offsets as part of the 2017 consent. And that's because it was in accordance with the policy to add rather than detract from it a development consent.”

(Tcpt, 25 February 2021, pp 114(45)-116(39))

and

“What we've got here is an application which was approved on the basis of just under 80 hectares of land being reserved for protection and enhancement and maintenance, not only to offset the impact of clearance of EEC, but also for fauna habitat. And once you start removing that obligation, you undermine the consent, and it becomes fundamentally something different…”

(Tcpt, 25 February 2021, p 117(14-18))

252. The future management was further discussed:

“COMMISSIONER: Submissions in reply, yes, para 4. You say that the applicant will be required to maintain area 1 unless and until, if ever, it obtains consent.

PICKLES: Yes.

COMMISSIONER: The requirement for maintenance, there would be obligations that apply to any landholder that arise from the Biosecurity Act, particularly the necessity in this particular case of addressing Nassella but I was wondering if there is - whether there are other requirements that would apply to maintaining area 1?

PICKLES: No, I mean that's the only point in the - the point I - we're really trying to make is it couldn't - the fact that's it's not protected by biodiversity - as a biodiversity offset, it doesn't mean it can be removed. And I don't mean maintenance in a positive sense. I mean maintenance in a neutral sense of keeping it there and not removing it.

REID: And that's certainly not disputed in my submissions. But what does change and is a dramatic change on the Minister's submission is that there's no longer that active management protection and enhancement of that area.

PICKLES: Not that there is at the moment anyway because there isn't actually a biodiversity banking agreement that attaches to it. But in theory, yes.

COMMISSIONER: But none of that detracts from any requirement to control noxious weeds?

PICKLES: No, that's right.

REID: But you have no evidence as to whether that's currently being done but in terms of the statutory obligation it would remain.

PICKLES: Yes.”

(Tcpt, 26 March 2021, pp 5(26)-6(9))

Given my findings, what should be the outcome?

253. The Applicant’s position underwent a dramatic change during the hearing:

“However, I have to say this: if, Commissioner, you disagree on the question of whether or not the land that was cleared was - if you disagree with the applicant as to whether or not that was Box-Gum Woodland, then the answer ought to be then simply that you dismiss the appeal, because the proposition which the Minister then puts that follows from that is that they would require the credits calculated in accordance with para 58.

And it would require a much more fulsome revisitation of the areas required of the biodiversity offset areas, which would be required to meet the credits, which Ms Treweek identifies at para 58. So, the preference I'm instructed to put actually is that you would dismiss the appeal rather than modify it according to an uncertain outcome which would be generated by the Minister's condition, which would have a certain number of credits required, but not specify the biodiversity areas that would be derived from that. And so that's the applicant's submission. Principally, of course, we say that there is a basis upon which to revisit the original consent. It would not result in a development that is not substantially the same.”

(Tcpt, 25 February 2021, pp 110(48)-111(14))

254. But on 26 March 2021 the position was:

“The only other thing the applicant - from the applicant's perspective we wish to stress was to stress that we withdrew the earlier - we withdraw the earlier submission that I made at the conclusion of the hearing last time that if you were minded to find contrary to the applicant's primary case that the factual case, let's say the vegetation removed from the quarry area was not box gum woodland, we have indicated then that our preferred outcome was that you simply dismiss the appeal. The position I'm instructed to put is different to that now and we say we would as an alternative accept that the factual finding but apply that factual finding to the alternative which Ms Treweek and Mr Garvey in the joint report nominate as at the alternative, the Minister's preferred credit calculation and then impose the conditions accordingly. It's a second best proposition.” (Tcpt, 26 March 2021, p 7(12-23))

and in the Applicant’s Submissions in Reply of 23 March 2021 at par 37:

“To the extent the Court does not accept the applicant’s submissions with respect to the factual basis underpinning the appeal, that is that the vegetation removed was not Box Gum Woodland, a submission was made, on instructions, that if the Court accepted the respondent’s calculations for the credits required the Court should dismiss the appeal. That submission is expressly withdrawn and instead it is submitted that the applicant would accept as an alternative the conditions in Option 2, which reflects the credits proposed by the Respondent and includes the provision of a Biobanking Agreement with management actions required to be undertaken.”

255. If I were to adopt the Applicant’s final position, I would uphold the appeal and adopt the conditions provided by the Respondent for its Option 2, which involves recognising the area of Box Gum Woodland accepted as required to be offset when the 2017 Consent was granted.

256. This I decline to do. Firstly, because of my conclusions on the jurisdictional prerequisites, I do not have the power to do so. If I were to be wrong in relation to the jurisdictional issues, there is still uncertainty over the credits required and their conversion to offset areas and the uncertainty would need to be resolved prior to any approval being given.

257. The Respondent’s agreement on the numbers of credits required under the two different scenarios, and the provision of particular draft conditions does not indicate that the Respondent supports Option 2. Rather it is the course the Respondent says I should follow if I were of a mind to uphold the appeal and grant consent and would give the best possible result in the circumstances in terms of protection of the vegetation.

258. The Applicant took a different view from that of the Respondent on the issue of whether the application if upheld would mean that the development would not remain substantially the same.

259. Mr Pickles in his Submissions in Reply argued:

“2. The respondent submitted orally that just because the proposal does not involve amendment of the quarry operations does not mean it remains substantially the same development. The applicant does not put its case in that way. It is not submitted that the absence of change in the quarry is the only consideration. The Court must look at the whole of the development including the quarry activities, the road haulage of materials and the biodiversity offset areas. Conversely, it would be wrong to focus solely on the modification of the biodiversity offset areas.

3. … First, the fact that Area 1 will not remain as an offset bare [sic] is not of itself demonstration of a vastly different outcome, because that depends on the quality of that offset compared with the quality replacing that offset. Secondly, even the respondent’s ecologist accepted that it was standard practice at the time of the original approval to use larger areas of lower quality vegetation (ex 4 at [23]). The experts also agree that it is feasible to find additional alternative offset areas adjacent to the bio-banking site that could provide a strong positive conservation outcome.

4. Further, whilst the obligation on the applicant to protect, maintain and enhance the biodiversity area will remove Area 1 to reflect the amount of offsets required, the applicant will nevertheless be required to maintain Area 1 unless and until (if ever) it obtains consent to carry out any form of development within that area. The effect of this is also that the physical outcomes remain unchanged from the original consent, and if the additional offset areas of higher quality and better connectivity are taken into account, an improved conservation outcome results.

5. Accordingly, the development remains substantially the same and the modification is of minor environmental impact.”

260. The parties in their submissions both stress the need for a broad-based view of impacts, but differ in what should be included in the consideration.

261. Mr Pickles considered the whole of the development should be considered- ‘including’ three specific areas of activity but he did not indicate what else could have been considered.

262. The objectors raised concerns about impacts from quarry activities, but these concerns were not reflected in contentions. Mr Beattie was concerned about the works adjacent to Brayton Road which, in his opinion, affected biological connectivity at the landscape scale, suggesting there will be ongoing consequences for biodiversity arising from the existence of the working quarry. These were not matters raised in contentions or discussed in the joint conferencing between the ecologists. The need to take a broader view of biodiversity is particularly important given the obligation on the consent authority to consider any relevant environmental planning instruments, two of which are significant, the GMLEP and SEPP (2007, 2021). Under GMLEP, the subject site contains land in zone RU1 Primary Production and RU2 Rural Landscape. Extractive industries are permitted with consent in both zones. However, the consent authority must also consider other provisions in the GMLEP, of which cl 7.2 Terrestrial Biodiversity is, in the circumstances of this case, the most important. Much, but not all, of the subject site is included on the Biodiversity Map that is part of the GMLEP, so cl 7.2 applies to much of the subject site.

263. Ms Reid in her Supplementary Outline of Submissions discussed cl 7.2:

“5. Clause 7.2(3) of the LEP is a jurisdictional precondition to the grant of development consent. The clause is relevant to the subject modification application as s 4.55(3) of the Environmental Planning and Assessment Act 1979 (‘the Act’) requires the consent authority to take into consideration such of the matters referred to in s 4.15(1) of the Act as are of relevance to the development the subject of the application. Section 4.15(1) requires consideration of the provisions of any environmental planning instrument. Consideration of the clause also lends support for the conclusion that the application is not substantially the same development as that originally approved.”

264. Clause 7.2(3) requires the consent authority consider a report addressing a number of matters. There is no evidence of such a report having been produced or considered. One of the matters to be addressed in the required report is in cl 7.2(3)(iv) - habitat corridor. I was not made aware that there is any formally identified corridor on the land, or of whether, under the heading habitat corridor, there is opportunity to consider connectivity in a general sense. While cl 7.2(3)(a) requires identification of threatened species (sensu lato), other requirements refer to biodiversity more broadly.

265. Mr Pickles acknowledged that the Joint Report of the ecologists (Ex 4) and their oral evidence did not directly address cl 7.2 - but nevertheless addressed ‘the same subject matter’ (par 18 of Applicant’s Submissions in Reply). I agree that the ecologists did address some of the requirements of cl 7.2 but this was incidental, and some aspects of cl 7.2 were not addressed at all.

266. Mr Pickles did not agree with par 12 of the Respondent’s RSS, and suggests (Applicant’s Submission in Reply at par 12) that proposed will ‘provide better habitat corridor connection’ - but this was not discussed in any details. It is a complex issue; corridor value is likely to vary between different places and at different scales (as discussed in Bottomline Group Pty Ltd v Snowy Monaro Regional Council [2020] NSWLEC 1155 at [191]-[196]).

267. The Mining SEPP required in cl 14, and still requires in s 2.20 of the 2021 SEPP, that:

(1) Before granting consent for development for the purposes of mining, petroleum production or extractive industry, the consent authority must consider whether or not the consent should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following—

…

(b) that impacts on threatened species and biodiversity, are avoided, or are minimised to the greatest extent practicable,

…

268. I discussed how ‘threatened species and biodiversity' is to be construed and consider that biodiversity should be given a broad meaning, beyond just the threatened components, important though they are.

269. Although the extensive documentation compiled over many years for the quarry development discusses many elements of biodiversity, there was no evidence that the ecology experts who gave evidence in this matter had given the attention what I consider cl 7.2 and the Mining SEPP required.

270. The appeal is in relation to the modification application seeking to modify the 2017 Consent. The appeal is governed by the law as it stands now, but in many respects much of the relevant legislation today is the same as that applied in 2017. The major change is that at the time of the 2017 judgment the provisions of the TSC Act applied whereas now those of the BC Act are in operation so that the procedures of the BC Act were followed. The GMLEP in 2017 was the GMLEP 2009, in which cl 7.2 was in the same form as it is now. The Mining SEPP was in force and cl 14 imposed a jurisdictional prerequisite on the consent authority. The Mining SEPP is now incorporated into the 2021 SEPP and the relevant provisions of cl 14 in the Mining SEPP are now in s 2.20 of the current SEPP.

271. The TSC Act included in its Objects in s 3 “to conserve biological diversity and promote ecologically sustainable development”.

272. The TSC Act has been repealed and has been replaced by the BC Act; the purpose of the Act includes in s 1.3:

The purpose of this Act is to maintain a healthy, productive and resilient environment for the greatest well-being of the community, now and into the future, consistent with the principles of ecologically sustainable development (described in section 6(2) of the Protection of the Environment Administration Act 1991), and in particular—

(a) to conserve biodiversity at bioregional and State scales…

273. The scope of both Acts is thus broad and extends beyond the threatened items which are the focus of many of the specific actions in the operational aspects of the Acts.

274. The conditions to the 2017 Consent include extensive requirements in relation to biodiversity – which I have reproduced between [22] and [24]. These include both obligations and commitments, which, as the 2017 Consent arose from a s34 agreement, were agreed to by both parties. These included a requirement for two biodiversity offset areas, which, as a result of slight changes in development footprint, would be slightly increased if the modification application is approved. Even if what is now proposed were to be provided, an improved outcome, the reduction in offset area is so large as to make the development not to be substantially the same. However, the reduction of the area of offsets means that for these areas which are no longer offsets would face an uncertain future, with no guarantee of appropriate long-term management, and might in the future be the subject of other development proposals. As the modification application involves reduction in the area of offset management for long-term conservation management the outcome is not an improvement, but rather a significant change, so the development would not be substantially the same.

275. The current jurisdictional prerequisites in GMLEP and the Mining SEPP applied when the 2017 judgment was made. That judgement was the outcome of a s34 conciliation conference and was delivered pre-Al Maha - so does not contain any indication of the identification of jurisdictional prerequisites, and, if they had been identified, how the Court was satisfied that they had been met.

276. I have concluded that none of the jurisdictional prerequisites as they apply to the modification application have been met. The 2017 judgment did not involve a reduction in the offset areas but did, inter alia, increase the quarry footprint. Consequent upon the extra disturbance entailed, there was a slight increase in the area of offset required. The s34 agreement was freely entered into by both parties, so the required extent of the offset areas was agreed between the parties, and in the absence of any insights into the nature of the discussions between the parties I must presume that the agreed areas were considered appropriate in the light of the available information, and the parties’ consideration of the jurisdictional prerequisites.

Final orders

277. The Court orders:

1. The appeal is dismissed.

2. The application made pursuant to s 4.55(8) of the Environmental Planning and Assessment Act 1979 to modify State significant development consent SSD 7090 (Gunlake Quarry Extension Project – Modification 1) is refused.

3. The exhibits are returned except for A, B, C, D, 1, 2, 3 and 4.

……………………..

P Adam

Acting Commissioner of the Court

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Endnotes

Decision last updated: 25 October 2022