Hunter Quarries Pty Ltd v Minister for Planning

[2006] NSWLEC 637

Land and Environment Court

of New South Wales

CITATION:

Hunter Quarries Pty Ltd v Minister for Planning [2006] NSWLEC 637

PARTIES:

APPLICANT
Hunter Quarries Pty Limited

RESPONDENT
Minister for Planning

FILE NUMBER(S):

10673 of 2006

CORAM:

Hoffman C

KEY ISSUES:

Appeal :- Condition 13 of consent DA 265-10-2004 for a quarry, s 94 contribution for road maintenance, standard of maintenance required, equivalent standard axle ratio (ESA), design loading for pavement, design life of the pavement, change of frequency of trucks using the road during the design life.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

29/09/2006

EX TEMPORE JUDGMENT DATE:

09/29/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Ball, solicitor
of Harris Wheeler Lawyers

RESPONDENT
Ms J. Smith, solicitor
of Department of Planning

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 September 2006

10673 of 2006 Hunter Quarries Pty Limited v Minister for Planning

JUDGMENT

1 This is a class 1 Appeal, No. 10673 of 2006, between Hunter Quarries Pty Limited and the Minister for Planning, in regard to condition 13 of consent DA 265-10-2004, for a quarry at the intersection of Branch Lane and the Pacific Highway on the Karuah by-pass, at Karuah in the Great Lakes Shire.

2 A summary of the subject of the appeal is that condition 13 provides for a contribution rate to the Great Lakes Council for damage to its roads by virtue of haulage trucks taking excavated material from the quarry on council roads. The rate in condition 13 is 4.7 cents per cubic metre of material per kilometre on council roads.

3 The applicant had objected to that amount and provided an independent estimate of an appropriate figure which has been the subject of negotiation between the applicant, the minister’s department, and the council.

4 In order to resolve the matter the minister’s department appointed an independent consultant to assess the appropriateness of the amount and its calculation through the council’s s 94 contributions plan in order to check on any adjustment that might be appropriate to the figure.

5 The parties came to the Court with consent orders in Exhibit 3 following that negotiation. There was a new draft condition 13 which set a figure of 3.6 cents per cubic metre of material per kilometre hauled on council roads, together with a CPI annual review to index the payment accordingly.

6 Mr Mack, who is a qualified engineer and town planner, and who was the independent expert employed for the purpose gave evidence. He said that the formula for calculation of the rate in the council’s s 94 contributions plan was agreed by the parties as being an appropriate formula. It was the input figures to the formula that required review. His report is in Exhibit 1, and it showed that one of the main variables in the formula was the input of the estimated cost to rehabilitate a kilometre of road.

7 The RTA estimate was $1 million, the council estimate was about $600,000, and the applicant’s independent estimate was $360,000. Mr Mack had undertaken to find out why there was such a large variation, and had discovered that they were all quoting for a different standard of road, and thus there was this major difference in estimates. He then arrived at an appropriate standard of construction for the council road, and negotiated with the parties and they ultimately agreed that $686,000 per kilometre was an appropriate figure.

8 Another input to the formula is the ratio of the equivalent standard axle for the applicant’s trucks, and again there was some negotiation about whether or not one should use either the outgoing laden truck equivalent standard axle (ESA), or the returning unladen truck average. Because a road has to be re-built in total, or maintained in total, it was agreed to average this figure, and Mr Mack came up with an equivalent standard axle figure of 4.1, which the parties agreed to.

9 Another input figure is the design loading of the pavement, and Mr Mack explained that this was related to many figures such as the design life of a road between 10 years and 20 years, and also the annual growth on the road of truck traffic. A particular thing that he found was the council s 94 plan, which was a fairly old document, had used a 5% growth rate for the council roads in the locality. That might have been appropriate at the time. However he found through doing traffic counts that in fact the current rate was about 2%. This changed the figure for the design loading of the pavement, and it was agreed 4.11 x 106 ESA average was an appropriate figure.

10 The average capacity of the applicant’s trucks was known to be 21.67 cubic metres, so that completed the input to the formula, and it produced the figure of 3.16 cents per cubic metre of material per kilometre.

11 I enquired from the parties about the arrangements for payment and found that payment is to made annually at the end of each year. I enquired about what covered the council in the event of the operating company going out of business or defaulting in any one year. What would be the liability of the council in losses? I was told that most of the excavated material goes straight onto the Pacific Highway and not a council road, and the estimated annual fee to the council is in the order of $800 to $900, so that the loss to the council in the event of default of the operator is not a significant one. The parties advised that they were in agreement no bond was needed in that case.

12 Since all parties are in agreement, that is the council, the Minister for Planning’s Department, and Hunter Quarries Pty Limited, it seems to me this is a matter that would not warrant the notification of either the appeal, or the consent orders proposed, and I have not been advised of any objections from members of the public in regard to this matter.

13 Therefore, by consent of the parties, the Court makes the following orders:

1. Appeal No. 10673 of 2006 is upheld.

2. Development consent No. 265-10-2004 granted by the Minister for Infrastructure, Planning and Natural Resources for the Karuah Hard Rock Quarry on 3 June 2005 is amended in accordance with attachment “A” hereto.

3. The exhibits are retained on the Court’/s file.

The Court notes the parties have agreed no order as to costs.

___________________

K G Hoffman
Commissioner of the Court
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