Mudgee Stone Company Pty Limited v The Oberon Council - [2004] NSWLEC 741

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Mudgee Stone Company Pty Limited v The Oberon Council [2004] NSWLEC 741

PARTIES:
APPLICANT
Mudgee Stone Company Pty Limited
RESPONDENT
The Oberon Council

FILE NUMBER(S): 10652 of 2004

CORAM: Hoffman C

KEY ISSUES:
Appeal :- quarry to excavate white granite - noise - scenic impact - pollution - Rural amenity impacts - access road and rights of way - traffic - danger from explosions.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Oberon Local Environmental Plan 1998

CASES CITED:

DATES OF HEARING: 27/10/2004-28/10/2004

EX TEMPORE
JUDGMENT DATE : 12/22/2004

LEGAL REPRESENTATIVES:

APPLICANT
L J Moore, solicitor
of Moore & Co Solicitors
RESPONDENT
P L Crennan, solicitor
of McIntosh McPhillamy & Co Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

22 December 2004

10652 of 2004 Mudgee Stone Company Pty Limited v The Oberon Council
JUDGMENT

1 This was a class 1 appeal between Mudgee Quarries Pty Limited and Oberon Council in appeal 10652 of 2004. The application was for a quarry to excavate white granite from a mountain located at No. 750 Duckmaloi Road, Oberon.

2 The proposal was for an operation between 7.00am and 5.00pm Monday to Saturday with use of a heavy duty excavator to move the rock to the crusher and a front end loader to load the trucks from the stock pile of crushed material.

3 An on site crusher would reduce the boulders of the white granite to between 75 mm and 100 mm size. The applicant sought up to three explosive blasts per year to loosen the bedrock into boulders small enough for crushing. These would occur on publicly notified days Monday to Friday between 8.00am and 5.00pm. The crushed material would be taken from the site by three trucks per day arriving, being loaded and leaving between 8.00am and 5.00pm seven days a week.

4 Total production would be 25,000 tonnes per annum maximum, making it less than the production that would render it a designated development under the Environmental Planning and Assessment Act 1979. The proposal did qualify as integrated development and appropriate procedures of assessment had been followed.

5 Trucks would have a twenty-eight tonnes capacity and would be forty tonnes fully laden. The quarry had a life expectancy of twenty years.

6 The nearest house to the quarry was 650 m past a ridge on the boundary of the property and below in the valley of Duckmaloi River. It was referred to in the planning and acoustic reports as house A or R1 respectively. Next closest to the quarry was house B or R2 respectively and it was 1000 m away, again across the ridge and below in the valley. Houses C and D were 1800 m away. House C or R3 respectively was also across the same ridge and below in the valley. House D or R4 respectively was in the opposite direction over the top of the hill above the quarry and at the head of a gully leading back to the valley.

7 The subject property was lot 13 DP 603429, also known as portion 13 Parish of Norway. It was accessed via a Crown road and two rights of way from Duckmaloi Road. The access distance was about 1.5 km. The Crown road was a gravel track that was used by several properties. The two rights of way were unconstructed and the tyre tracks currently used for access were not within the right of way in many places. The entry to the Crown road was about 1.8 km east of Titania Road and 6 km east of Oberon. The existing entry to the Crown road from Duckmaloi went up an embankment from the east within the reservation for Duckmaloi Road. This was not considered safe for forty tonne laden trucks and at the time of the hearing the proposal sought to re-use a third right of way over portion 169.

8 Portion 169 had frontage to Duckmaloi Road just west of the existing access. A new intersection as in exhibit A would have to be created and a bitumen carriage way constructed up the embankment from the west to the Crown road. This would give better safety sight distances and a lower gradient suitable for trucks.

9 Several other properties used the Crown road for access. It had a gravel track along part of it that everyone used. Whilst it was generally straight, there was a right angle kink in the Crown road reserve about half way along. The kink occurred at a rise up a hill and the track curved off a little from the reserve at that point presumably to seek a lower gradient.

10 The owners whose land the track went onto had not been too concerned whilst it was only light traffic to and from their properties, but all were concerned now at the thought of 40 tonne trucks using it daily. Reconstruction would be needed and the neighbours, apart from objecting to the proposal as a whole, required that any reconstruction should be entirely within the Crown road reservation.

11 The applicant indicated that the right of way over portion 169 extended from Duckmaloi Road parallel and next to the Crown road so that at the kink some of the right of way might be used. Currently lot 13 used none of the portion 169 right of way.

12 The owner of portion 169 objected to any use of the right of way as it did not benefit the other land owners.

13 At the end of the Crown road the proposal had another right of way over lot 4 DP 562300 for a short distance and that connected with another right of way over lot 3 DP 562300.

14 The rights of way crossed the full width of lot 3 in approximately a north/south direction. In this distance it went over the top of a large hill or mountain, as it might be called, and ended at the common boundary of lots 12 and 13 DP 603429.

15 Lot 13 was on the southern slope of the large hill. It was nearly all wooded but open in places in which pasture grew. The granite outcropped within the property and at the site of the quarry. Lot 13 had a total area of 26 ha. The quarry site was in a fold in the hill and was to have a curtilage of about 1.4 ha with an excavated area within that of 0.52 ha. It was between two gullies that combined just below the quarry to become a perennial water course. The allotment was fenced, as were the neighbours who were all engaged in agriculture, typically cattle and sheep grazing.

16 The curtilage of the quarry, the 1.4 ha, was to be fenced, including a man/childproof fence uphill of the quarry face and down the sides to avoid inadvertent falls of persons therein.

17 Detention and sediment trap ponds were to be created below the quarry to control runoff. Any discharge would be into the area of confluence of the two gullies.

18 The size of the ponds was less than might have been expected due to the quarry floor itself becoming a primary detention pond once it dropped below the surface of the hill slope.

19 The applicant’s engineers expected water trapped within the quarry floor would infiltrate the ground water system and travel down hill that way. No contaminants except sediment were expected in the runoff. The only potential pollution was from the vehicles and equipment. For instance, high pressure hydraulic hoses on front end loaders are known to break and spew hydraulic oil. Procedures were required to be in place in accordance with several types of legislation to deal with such events. This should not result in any contamination of ground water.

20 The method of rock extraction within the 0.52 ha quarry was to start at the lowest point on the side of the hill and dig inwards from that point, blasting the rock as necessary. This would create what was called a shelf. Over burden was to be placed at the lower or downhill edge of the shelf and on the western side. This would form an earth embankment 6 m high that would absorb or help deflect noise that might otherwise go towards the distant houses. Top soil would be stored separately for re-use in rehabilitation at the end of the quarry life. As the quarry progressed into the hill a second shelf would be created. On the down hill and western sides of this shelf or any third shelf the crusher stockpile would be placed. As with the other embankment it would act as a noise barrier.

21 The crusher was mobile equipment and worked near the quarry face fed by the heavy duty excavator. Trucks would normally operate from the lowest shelf and be filled from the stock pile by the front end loader. Once the quarry face reached the up hill end of the 0.52 ha, the floor of the quarry would then be excavated to get the rock underneath and eventually go down to a level set at RL 1140 AHD.

22 The point of commencement of the quarry was on about contour RL 1160 AHD on the side of the hill so that at the end of the quarry life there would be a twenty metre deep hole at the southern end of the workings. The up hill end of the quarry started at contour RL 1170 AHD so the hole would be thirty metres deep there. The rehabilitation would consist of refilling the hole with the over burden and uncontaminated fill.

23 Final restoration may involve breaking down the sides and upper end of the quarry face. There may be a steep slope but no ponding of water. The top soil would be re-spread and the area re-vegetated.

24 The top of the hill to the north of the quarry was beyond lot 13 on lot 3 through which the access right of way passed. The top of the hill was at RL 1207 AHD. The floor of the valley to the south west beside the river was at about RL 1000 AHD.

25 The nearby houses previously referred to were at a range of elevations between RL 1000 AHD to RL 1120 AHD.

26 Since the original application in 2003 the proposal has been modified twice and so it was exhibited for public comment three times. The application was finally refused for the following reasons:

1. The intersection of Duckmaloi Road is not safe for heavy vehicles.

2. There are concerns about adverse noise impacts due to the quarry operations.

3. There are concerns about noise regulation problems in the future.

4. Possible restrictions that may be placed on adjoining owners who may wish to further develop their land at a later date.

5. There are concerns about whether the development meets the criteria of a designated development.

27 The issues had been reduced from those above since then. The Council had reviewed the method of operation and noise impact studies and deleted that issue. Also, with the Road and Traffic Authority Agreement to the relocation of the access off Duckmaloi Road, and the few numbers of trucks per day meant the traffic issue was deleted. Also the reduction of annual production to a maximum of 25,000 tonness eliminated the categorisation of the proposal as designated development, although there was a question on whether the area of the access roads ought be included as service area land disturbance.

28 The issues were therefore:

Issue 1 was deleted.

Issue 2 was deleted.

Issue 3 became, ‘The extent of the quarry operations may amount to designated development within the meaning of Environmental Planning and Assessment Regulations 2000. ’ Clause 4 and sch 3 defines extractive industries as an extractive industry which: (a) - deleted, (b) ‘will disturb a total service area of more than two ha of land.’
Issue 4. The proposed development is not in the public interest, having regard to the submissions received from residents in the locality.

Issue 5. On a proper construction of the development application is development consent sought for-

(a) Road works on one kilometre of Crown road and if so:

(i) Is development consent required.
(ii) Does the development application therefore constitute designated development as an extraction industry in respect of which more than two ha of the total surface area of land will be disturbed.

(b) Construction of the road on rights of way over lot 11 DP 603429 and lot 4 DP 562300 is required and if so:

(i) Is development consent required and
(ii) In the absence of owner’s consent to the development application is the development application to be refused.

Issue 6. Is development consent capable of being granted without the inclusion of road works on:

(a) The Crown road.
(b) The right of way lands.

29 The Court heard evidence from:

· Mr M G Armstrong of 251 Beattie Road and the owner/occupant of house A nearest the quarry.

· Mr M Timbrell of Locksley Street, Killara and the owner of 200 Beattie Road. No house has yet been built on it.

· Mr S W Murdoch, production manager of Murdoch Quarries of Mudgee and a director of the applicant company.

30 Other persons were present at the on site inspection and their letters of objection were in exhibit 2.

31 The Council summarised the concerns of the objectors as the quarry having an adverse affect on the amenity of the rural residents and the scenic attraction of the area. The detailed concerns were summarised on a matrix page of topics and individuals objecting on each topic for the first and second public exhibitions.

32 The submissions on the third exhibition were, in summary:

33 The Rural Fire Service raised no concerns or special considerations.

34 The Armstrongs were concerned about-

35 Mr Young was concerned about:

36 Ms M N McClellan was concerned about similar matters:

37 Mr M Timbrell and Mrs L Timbrell said:

38 Unimin Australia through its general manager, Mr M A Wood said they did not believe Mudgee Stone Company Pty Limited held any mining licence for the site.

39 The Roads and Traffic Authority set down conditions for the new access to Duckmaloi Road.

40 The Fish and River Water Supply Authority set down conditions to be observed by a quarry operation, mainly to avoid pollution of Duckmaloi River in the valley below the site. Apparently the river was also home to a large colony of platypi. Conditions were prepared to ensure no impact on their habitat.

41 The respondent said, although the size of the quarry had been substantially reduced from the first public exhibition to the third and the number of objectors had reduced, many of the thirty-three original objectors maintained similar objections to those of the third exhibition period and they should be applied to the current proposal.

42 In March 2004 the Council refused the proposal for the reasons previously mentioned.

43 Based on the submissions of the parties the Court has concluded that the access routes to the quarry do not constitute part of the service or disturbed area of the quarry under the Environmental Planning and Assessment Act Regulation 2000, sch 3 and therefore the area of the quarry remains under two ha and therefore the proposal does not become designated development.

44 Mr Armstrong added in his oral evidence that he felt cheated in buying a rural residence property that the Council had allowed to be sub-divided for that purpose, and now he was confronted with an industrial use next door. He and his neighbours would, in effect, be paying the price of reduced amenity to allow the quarry to make a profit.

45 He said he could hear the test drilling of the quarry over a period of five days and there was dust blown away too. He had allowed a noise measuring device to be set up next to his house for the acoustic report. He noticed the background noise level got down as low as 25 dBA. He believed that meant that he would hear the quarry operations just as he had heard the test drilling.

46 He was asked if he only heard the test drilling whilst the rig was close to the boundary near his land, rather than when it was on the quarry site. He said the drill rig was moved around to several drill sites the five days. He assumed some of them must be at the quarry site.

47 This brought to light that another function of the quarry was to drill the rock for blasting. Many holes might be drilled and a charge set in each. The actual blast referred to in singular terms in the reports actually would be a series of blasts occurring one after the other so quickly that a person would think it was one blast. Mr Murdoch said it was often done that way to clear away rock at the foot of the quarry face first and then to progress the blasts in a way that collapsed the quarry face, rather than blowing it up and out.

48 Mr Armstrong was concerned about flying rock. The fatality resulting from the blasting of the old Canberra Hospital was mentioned. Mr Murdoch said the Department of Mineral Resources required a detailed plan of each blast that it had to approve to avoid such accidents. Once approved the quarry operator had to adhere strictly to the plan. Most rock fly was limited to 60 metres from the blast in his experience. Seldom did he see any beyond 100 m, so reaching a house 600 m away was most unlikely. According to the plan in figure 3.1 of the Statement of Environmental Effects the quarry was 130 m from any boundary of Lot 13 at the closest point.

49 He said for three blasts a year the drilling necessary would be a total of seven days per year. The rig used for the test drills was a percussion drill with the percussion driver at the top of the rig. The company now had a rig with the percussion at the drill head, so the noise was at the bottom of the drill hole. It was much quieter. On being questioned he was not keen to have a condition requiring it to be the only drill type used at this quarry, as drilling schedules at other quarries sometimes may not permit it.

50 It was proposed to set a noise limit standard under the acoustic report and that would enable various rigs to be used, including new technology as it was invented in the future and ensure noise did not disturb the rural residents.

51 Mr Murdoch said when the test drill was on the quarry site, as opposed to being elsewhere on the 26 ha of Lot 13 he had walked over the ridge towards the houses of the objectors to the west and could not hear the drill operating.

52 The crusher was also a noisy piece of equipment he said but the drilling rig was the noisiest operation. The crusher could do 1,000 tonnes a day. The crusher was mobile equipment and was used at other quarries. With the annual production of a maximum of 25,000 tonnes the crusher would be on site only about thirty days per year.

53 The crusher could take boulders up to 1.4 m by 0.8 m. If the blast created some boulders bigger than that, they would have to be split. He said the company had promised objectors the boulders larger than 1.4 m by 0.8 m would be trucked to Mudgee and not split on site.

54 Mr Murdoch was a qualified shot firer, which means in laymen terms a person licensed to design a blast, calculate the charges for it, lay the charges and to carry out the blast according to the appropriate approved Department of Mineral Resources blast plan. As added insurance, however, Mr Murdoch said the specialist international explosives manufacturing company called ORICA always did the calculations and set the charges for the Mudgee Quarries.

55 Mr Murdoch believed the statement of environmental effects was correct in stating the quarry would not be seen from the surrounding locality, due to its location in a fold in the hills and, there being no line of sight to any houses, any quarry noise was unlikely to be heard at the houses.

56 Also the flora and fauna study had recommended the planting of trees to replace those removed on the actual quarry site. These could be located in a position that would ultimately add to the existing trees below the quarry. He had noted that the existing height of the trees below the quarry and on either side was such that it was not possible to see the quarry from the below or even hills in the distance.

57 Mr Murdoch hoped to be allowed to do a trial quarry operation so the rock could be put through a trial processing at the Mudgee plant. This would assist in marketing of the proposal and the appropriate use of it. The Council opposed this as such would be done without all the service facilities being installed and also it would be difficult to limit the operation of any trial without constant supervision. The Council did not have resources for constant supervision.

58 Mr Fletcher said, in assessing the noise impact study that the acoustic engineer Mr Atkins had assumed the protection afforded by the ridges both sides of the quarry did not exist, so his calculations of noise impact on nearby houses was as if there was direct line of sight. The calculations showed minimal impact on the houses and, given the factor of safety due to the shielding effect of the ridges, there should be no impact. If there was impact, it was likely to be in periods of exceptionally quiet background noise, as referred to by Mr Armstrong. A condition was proposed to prevent operation for drilling and blasting during such periods.

59 Also Mr Akins had calculated noise of blasts on the basis of 80 kg explosive charges and the draft conditions of consent put a maximum of 50 kg charges. By way of explanation, that could be 50 kg per drill hole if needed, the Court was told, and there could be 35 to 50 holes per blast the Court was told. Due to the firing of each drill hole being time spaced apart by milliseconds it all sounded like a single explosion over a period of several seconds but each individual blast was to be not more than 50 kg the Court was told.

60 Mr Fletcher had considered the other aspects of the statement of environmental facts and concluded, subject to appropriate conditions, there was no reason sufficient for refusal.

61 There was after that considerable evidence on the draft conditions and Mr Fletcher expressed opinions about them.

62 At the end of the hearing the Court directed the parties to reconsider the conditions and file a revised set with any written submissions. The revised conditions were filed by letter of 3 November 2004 with advice from the applicant’s solicitor that they were agreed by both parties.

63 Overall the Court has reached the following conclusions:

64 The proposed quarry is a permissible use with consent in the Rural 1(a) zone of the Oberon Local Environmental Plan 1998 and subject to compliance with Oberon Development Control Plan 2001.

65 The technical evidence indicated the proposal would not have unacceptable impacts on the rural residential houses that were at some distance from the quarry.

66 The owners of the house at the time of purchase should have been aware of the range of permissible uses in the zone, although the potential for a quarry nearby may not have been obvious.

67 For old time residents of the area, there would have been local knowledge that another quarry on the same hill had existed in the past.

68 White granite was a relatively rare commodity and one could only obtain it from the few places it existed.

69 The objectors fears of unacceptable impacts on their amenity were just that, when an overall assessment of the technical evidence and its merits showed that their fears were most unlikely to become reality.

70 There is case law on the fears of persons about a particular development. The evidence has shown their fears to be largely unsubstantiated provided the size of the quarry is limited and its operations controlled by conditions of consent.

71 The objectors feared the Council would not monitor the operation of the quarry to ensure compliance. There is case law on that too, in that a Council is expected to police conditions of consent and ensure adherence to them.

72 It seems that as a secondary check on operations the nearby rural land owners would be aware of breaches and alert the Council. This is not of course a preferred situation as the expectation is that such a situation will not arise.

73 The applicant must accept the burden of responsibility for adherence to the conditions of consent, and under case law must be presumed to do so under the law unless proven otherwise.

74 Although the objectors wanted a one year time limited consent as a trial period, it seems to the Court it is not warranted. Given the evidence, and in view of the considerable infra structure required it is unreasonable to expect those facilities to be installed on the basis of a one year time limited consent. For instance the applicant, in reconstructing the Crown road and access to Duckmaloi Road, would provide a heavy duty tar sealed construction suitable for forty tonne trucks whereas it was currently a rough dirt track.

75 If conditions are complied with, the rural amenity of the locality should be preserved. If the conditions are not complied with, the quarry operation can be stopped until it does comply with the conditions. In any case, the consent is time limited to twenty years life.

76 In regard to the deferred commencement condition No. 21, the Court is of the opinion condition 7(b) needs to be subject to condition 21. Otherwise a private certifier could determine the acceptability of the landscape plan when it is the Council itself that needs to be involved and the plan should be approved prior to the compensatory planting referred to in condition 7(a).

77 Condition 20(a) also needs a report on the requirements of the Department of Infrastructure Planning and Natural Resources after consultation so that there is documentation of its requirements.

78 A further matter of concern in regard to noise operations is the company’s undertaking to the objectors that boulders greater than 1.4 m by 0.8 m would be taken to Mudgee for crushing, rather than being split and further crushed on site. This needs to be included as a condition.

79 Given these changes the Court agrees that the conditions of consent filed with the above amendments mitigate the operation and impacts of the proposed quarry to acceptable levels at which the proposal may be approved.

80 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred Development Consent is granted to a quarry of not more than 0.52 ha disturbed area within a 1.4 ha total site located inside Lot 13 DP 603429 Duckmaloi Road, Parish of Norway, Oberon as shown in the Statement of Environmental Effects in Exhibit 1 of this appeal and subject to the conditions in Annexure A hereto.

3. The exhibits may are returned to parties except Exhibits 1, 4, 5, 6, A, B and C.

________________________

K G Hoffman

Commissioner of the Court

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Annexure “A”

Conditions of

Deferred Commencement Consent (see condition 21).

Proposal: Development Application 126/03 for Granite Quarry

Applicant: Mudgee Stone Company

Premises: 750 Duckmaloi Road, Oberon

1. Terms of Approval

Except as modified by the following conditions the proposed development is to be carried out in accordance with the stamped approved document "Oberon White Granite Quarry - Amended Statement of Environmental Effects" dated 10 February 2004, prepared by Mudgee Stone Company Pty Ltd (the Statement of Environmental Effects). The reference to manufacturers names and equipment model numbers in clause 2.6 of the Statement of Environmental Effects shall be disregarded and the descriptions of equipment and sound power levels in the Atkins Report table 9 takes precedence.

2. Approved Operating Parameters

The quarry is to be established and operated within the following parameters described in the statement of environmental effects and associated documents:-

Extracted material White granite

Maximum permitted site 1.409 hectares

disturbance

Annual production 20,000 -25,000 tonnes

Blasting One-two blasts per year

Off site transport 3 x 28 tonne truck departures and arrivals per day - (Total of 6 movements)

Number employees on site 2

Days/Hours of Operation 7am to 5pm Monday to Friday,

8am to 5pm Saturday & Sunday.

Closed public holidays.

Life of Quarry Maximum of 20 years from the date of consent.

Maximum depth of excavation RL 1140 AHD.

Any increase in the operational parameters or expansion of the quarry will require the further consent of Council.

3. Road Access

Legal and practical vehicular access shall be provided from Duckmaloi Road to the head of the quarry to the following standard and the reasonable requirements of the RTA: The Road is to be constructed in the location shown on the plan titled "Legal Access Diagram" contained in the report by Mudgee Stone Company Pty Ltd dated 10 February 2004, as follows:

a) Construction of a new intersection at the access road and Duckmaloi Road in accordance with the conditions of approval of the Roads and Traffic Authority.
b) Construction of a 6 metre wide bitumen sealed road on an 8 metre wide gravel base, together with associated survey work, drainage, road signage and any other works necessary to make the road effective from Duckmaloi Road to the north-western corner of Lot 4 DP562300.
c) The road over the Carriageway over Lot 4 DP562300 and Lot 11 DP603429, and over Lot 13 DP 603429 being 4 metre wide bitumen seal, ending at a point on the road 200 metres within Lot 13 DP603429.
d) The provision of stock proof fencing along the public road and the provision of appropriate grid and gate combinations on the roads to be constructed on the rights of way where traversing existing fence lines.
e) The submission to Council of a Construction Certificate Application together with civil engineer design plans for the road design including on-site bitumen and “gravel only” roads, showing levels, cross sections, longitudinal sections, pavement design, culverts, drainage design including dams and other drainage works, and erosion and sedimentation control plans and specifications for approval prior to the commencement of works. A fee for the assessment of the design plans will be charged in accordance with Council's Fees and Charges Schedule.
(f) Works-as-executed and final survey plans being submitted to Council upon completion of the road works.
g) Road works being fully completed and where necessary dedicated as a public road prior to the commencement of operation of the quarry. It shall not be a breach of this condition for the applicant to extract gravel from the quarry for use in the roadworks required by this condition, but for no other purpose.
h) The costs of all road works and associated costs being met by the applicant.

4. Developer Contributions

Prior to commencement of works and release of a Construction Certificate, payment of Section 94 contributions in accordance with the schedule below, or those applicable at the time of payment, as prescribed in Council's Annual Fees and Charges Schedule.

SERVICE REQUIRED CONTRIBUTION in 2004/2005

PUBLIC OPEN SPACE $500.00

EMERGENCY SERVICES $500.00

TOTAL if paid in the 2004/5 $1,000.00

financial year

5. Recurrent Costs

In accordance with the Oberon Council Contributions Plan (2004) the applicant shall pay to Council for road maintenance an amount of 5 cents (indexed annually on 1 July) per tonne of extracted material exported from the development site. The amount is payable by the 14 July every year. Note: the amount is to be determined and reconciled with annual production figures and volumetric surveys.

6. Native Flora Management

f) The applicant shall prepare a fire management plan, a copy of which shall be provided to the Council prior to the commencement of any quarrying activity.

7. Compensatory Planting

8. Aboriginal Heritage

The applicant shall liaise with the Pejar Local Aboriginal Land Council regarding having a representative attend the site during initial stages of development works.

9. Notification prior to blasting& operations

Council and all neighbouring residents within a 2 km radius of the quarry shall be given notice in writing of the proposed blasting schedule, at least 24 hours prior to blasting commencing.

10. Annual Environmental Performance Report

Submission to Council of an Annual Environmental Performance Report for the site, which addresses progress and performance in relation to:

· Environmental management

· Annual production in tonnes

· Annual certified volumetric survey of the quarry pit

· Compensatory planting and weed management programme

· Erosion and sedimentation controls

· Meeting of noise level predictions

· Blasting activities

· Traffic movements

· Dust management

· Pit advancement

· Groundwater quality and quantity monitoring in the vicinity of the quarry site

· Any incidents requiring implementation of the Spill Management and Clean-Up Plan.

· Flora and fauna management

11. Site Rehabilitation

A separate Development Application shall be submitted for Council's consideration and approval for site rehabilitation works upon ceasing of quarry operations. The site must be fully rehabilitated at the completion of quarry operations and before 1 March 2024. Prior to commencement of any quarrying activity a Security Bond of $30,000 is to be lodged with the Oberon Council that will be forfeited if the site is not fully rehabilitated by the 1 March

2024.

12. Builders Toilets

Prior to the commencement of works, temporary toilet facilities shall be provided on site for the use of contractors during the quarry and road construction works.

13. Site Identification

At the commencement of site works, a sign is to be erected in a prominent position at the entrance to Lot 13 DP 603429, identifying the site, stating that unauthorised access is prohibited, and showing the name and contact phone number of the person or company in charge of the site.

14. Building Works

Any proposed building structures on the site will require Development Consent from Council and a Construction Certificate approval, unless the work fits the exempt development criteria of Part N of the Oberon Development Control Plan 2001.

15. Use of Rock Hammer

This approval does not permit the use of rock hammers or any other noise producing equipment/machinery not specified in the Statement of Environmental Effects. Should a rock hammer or any other noise producing equipment be proposed to be used, an amendment to the consent pursuant to Section 96 of the Environmental Planning and Assessment Act 1979,

will be required.

16. Noise and Blast Control

17. Fencing

a) The applicant shall fence the perimeter of the pit as indicated on figure 3.4 of the Statement of Environmental Effects with a child and small animal proof safety fence.

b) The applicant shall maintain a stock proof fence on the perimeter of Lot 13 DP 603429.

18. Annual Environmental Monitoring Fee

The applicant shall pay an annual contribution of $500 increased on an annual basis by the CPI, to the Council. The contribution shall be payable when lodging the Annual Environmental Performance Report as required by Condition 10 until the quarry is decommissioned and the site rehabilitation is determined by the Council to be self-sustaining.

19. Groundwater Protection

d) No scheduled maintenance or scheduled repair of equipment shall occur on Lot 13 DP 603429.

20. Earth Works and Disturbance

e) Consult with the Natural Resource Project Officer in respect to progressive and final implementation of rehabilitation works which are to be carried out to the satisfaction of the Natural Resource Project Officer.

21. Deferred Commencement Conditions

In accordance with Section 80(3) Environmental Planning and Assessment Act this consent is not to operate until the applicant satisfies the Council in accordance with the Regulations of the matters contained in conditions 7(b) and 20(a).

__________________________

K G Hoffman

Commissioner of the Court

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Mudgee Stone Company Pty Limited v The Oberon Council [2004] NSWLEC 741

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CITATION:	Mudgee Stone Company Pty Limited v The Oberon Council [2004] NSWLEC 741
PARTIES:	APPLICANT Mudgee Stone Company Pty Limited RESPONDENT The Oberon Council
FILE NUMBER(S):	10652 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Appeal :- quarry to excavate white granite - noise - scenic impact - pollution - Rural amenity impacts - access road and rights of way - traffic - danger from explosions.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Oberon Local Environmental Plan 1998
CASES CITED:
DATES OF HEARING:	27/10/2004-28/10/2004
EX TEMPORE JUDGMENT DATE :	12/22/2004
LEGAL REPRESENTATIVES:	APPLICANT L J Moore, solicitor of Moore & Co Solicitors RESPONDENT P L Crennan, solicitor of McIntosh McPhillamy & Co Solicitors