New South Wales Glass and Ceramic Silica Sand Users Association Ltd v Port Stephens Council - [2000] NSWLEC 149

Land and Environment Court

of New South Wales

CITATION: New South Wales Glass and Ceramic Silica Sand Users Association Ltd v Port Stephens Council [2000] NSWLEC 149

PARTIES:
APPLICANT
New South Wales Glass and Ceramic Silica Sand Users Association Ltd
RESPONDENT
Port Stephens Council

FILE NUMBER(S): 10013 of 2000

CORAM: Pearlman J

KEY ISSUES: Development :- designated development - silica sand mining - groundwater - fauna - archaeology - rehabilitation - economic effects - adequacy of the EIS - weight of draft LEP - consistency with planning objectives - weight of nature reserve proposal

LEGISLATION CITED: Draft Port Stephens Local Environmental Plan 1999
Environmental Planning and Assessment Act 1979 s 5A, s 78A(8)(b), s 80(3),
Environmental Planning and Assessment Regulation 1994 cl 54, cl 55, sch 3
Hunter Regional Environmental Plan 1989 cl 21(c), cl 39, cl 42, cl 41(a), cl 44(1), cl 47, cl 59(a)
Port Stephens Local Environmental Plan 1987 cl 37
Threatened Species Conservation Act 1995 sch 2, sch 3

CASES CITED: ACI Operations Ltd v Port Stephens Shire Council and Ors (Bignold J, NSWLEC, 14 December 1990, unreported);
Golden v Coffs Harbour City Council (1991) 72 LGRA 104;
Prineas v Forestry Commission of New South Wales and Ors (1984) 53 LGRA 160;
Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21

DATES OF HEARING: 05/06/00, 06/06/00, 07/06/00, 08/06/00, 09/06/00, 13/06/00, 14/06/00, 16/06/00, 19/06/00, 20/06/00, 21/06/00, 22/06/00, 05/07/00, 07/07/00

DATE OF JUDGMENT:
08/15/2000

LEGAL REPRESENTATIVES:

APPLICANT
Mr T F Robertson (Barrister)
SOLICITORS
Blake Dawson Waldron
RESPONDENT
Mr J F Kildea (Barrister)
SOLICITORS
Trevor Dunn

JUDGMENT:

Contents

Section Paragraph Number

Introduction 1 to 3

Preliminary matters 4 to 6

The proposed development 7 to 9

The site and its surroundings 10 to 11

The competing claims and the issues raised 12 to 15

Groundwater quality and availability 16 to 27

Impact upon the wallum froglet 28 to 36

Archaeology 37 to 42

The planning context 43 to 44

Permissibility

Consistency with planning objectives

The Tomago Sandbeds Nature Reserve

Rehabilitation 59 to 63

Economic benefit 64 to 80

Adequacy of the EIS 81 to 84

Conditions of consent 85 to 91

Orders 92 to 93

IN THE LAND AND

10013 of 2000

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 15 August 2000

NEW SOUTH WALES GLASS AND CERAMIC SILICA SAND USERS ASSOCIATION LTD

Applicant

PORT STEPHENS COUNCIL

Respondent

JUDGMENT

Introduction

1. This case is about the extraction of sand from a coastal dune in the Port Stephens area.

2. New South Wales Glass and Ceramic Silica Sand Users Association Inc applied to Port Stephens Council on 16 June 1999 for development consent for the extraction of white silica sand from the northern dune at Tanilba on the Tilligerry Peninsula. The council refused to grant development consent on 22 December 1999, and the applicant now appeals against that refusal.

3. I have concluded that there is no justification for the refusal of consent, and that development consent should be granted subject to the imposition of conditions of consent.

Preliminary matters

4. I should point out that the hearing of this appeal was lengthy, and involved voluminous reports and considerable oral evidence. The 22 experts who gave evidence for the parties were as follows:

On behalf of the council

Mr P H Beck - a hydrogeologist;
Dr M J Mahoney - a senior lecturer in biological sciences;
Dr D J Robertson - an ecologist;
Dr A Clements - a plant ecologist;
Mr N D Baker - an archaeologist;
Ms S Artist - the council’s corporate strategic planner;
Mr P A Mitchell - a consulting town planner;
Dr C M R Sorrentino - an economist and chemical engineer;
Mr P H Stitt - a mining and geological consultant;
Mr P W Abelson - an economist.

On behalf of the applicant:
Mr C M Jewell - a hydrogeologist;
Dr A P Smith - an ecologist;
Ms N du Preez - a botanist;
Associate Professor A D Short - a geomorphologist;
Dr L J Craib - an archaeologist;
Dr J Pickard - an ecologist;
Mr G W Peacock - a consulting town planner;
Mr P H L Wait - an economist;
Mr J Whitehouse - a geologist;
Mr J Alste - a scientist in the employ of ACI;
Mr G Higginbotham - an analytical chemist in the employ of ACI;
Mr A Marshall - a geologist in the employ of ACI.

5. I record that I had the benefit of a site inspection.

6. Some doubt was raised as to the precise identity of the applicant, and, in particular, whether it was in fact an unincorporated association. Ultimately, the applicant formally sought leave to amend its name to “New South Wales Glass and Ceramic Silica Sand Users Association Limited ACN 002 890 226”, and, since no objection was raised by the council, I formally grant that leave.

The proposed development

7. White silica sand has been extracted from parts of the northern dune for many years by ACI Industrial Minerals Division (“ACI”). Currently ACI is extracting white silica sand from the western part of the northern dune pursuant to development consent which was granted on appeal by this Court in 1990 ( ACI Operations Ltd v Port Stephens Shire Council and Ors (Bignold J, NSWLEC, 14 December 1990, unreported)) and I will refer to the land the subject of that development consent as “the 1990 consent area”. The present proposal relates to the central and eastern part of the northern dune.

8. The proposed development involves the extraction of sand by stripping the topsoil and removing the underlying white silica sand. Three hectares will be disturbed at any one time - one hectare being cleared in anticipation of extraction, one hectare being worked and one hectare being rehabilitated.

9. The sand will be transported by trucks to ACI’s sand treatment plant at Salt Ash which is located about 11 kilometres from the northern dune.

The site and its surroundings

10. The land the subject of the development application (“the site”) is principally Crown land but is in part owned by the Hunter Water Corporation (“HWC”). The site falls within the Tomago Sandbeds Water Catchment area, and the water treatment works of the HWC are located about 1500 m from the site at Lemon Tree Passage.

11. The nearest town is Tanilba Bay, but Oyster Cove is located to the northwest of the site, whilst to the southeast there is an area formerly used by the Department of Defence and known as “the parachute drop area”.

The competing claims and the issues raised

12. The council’s case is that development consent should be refused principally because of the uncertainty of the impact of the proposed development on the groundwater system and the consequent potentially adverse impacts upon both the wallum froglet and the rehabilitation of the site. In addition it asserts that the proposed development fails to meet the relevant planning objectives and that the conservation values of the site outweigh the economic benefits of the silica sand resource.

13. The applicant denies that the proposed development is inadequate in any of these respects, and it claims that any potential impacts can be avoided or mitigated by appropriate conditions of consent.

14. The following issues were raised:

(1) Groundwater quality and availability;

(2) Impact upon the wallum froglet;

(3) Archaeology - Aboriginal relics;

(4) The planning context;

(5) Rehabilitation;

(6) Economic benefit;

(7) The adequacy of the environmental impact statement (“the EIS”).

15. I deal with each of these issues in turn. Each of the first six issues, however, raises questions about the adequacy of the EIS, but I have ignored those questions when dealing with each of the six issues, preferring to deal with those questions compendiously as issue 7.

Groundwater quality and availability

16. The impact of the proposed sand extraction upon the quality and availability of groundwater is the critical issue which underpins this case. That is because an adverse impact upon the groundwater system may lead to adverse impacts upon the wallum froglet species, may prevent proper rehabilitation of the site, and may have an impact upon the extent of the resource.

17. The groundwater issue arises in this way. The site comprises a coastal sand dune which provides a fresh groundwater system in the form of an aquifer. One of the characteristics of the groundwater system is that fluctuations in the water table will occur, particularly as a consequence of rainfall. There is a risk therefore that the water table may rise above the base of the extraction area. This could cause the formation of a non-permanent or semi-permanent body of water, known as a mirror lake, which is precisely what has occurred in the 1990 consent area. The formation of a mirror lake is likely to have serious environmental consequences. It may have a contaminating effect upon the groundwater, by exposing the water table to the atmosphere, and it may, as appears to have occurred in the 1990 consent area, damage or impede rehabilitation of the post extraction landform. It may also impact upon the wallum froglet, in that it would become a host for a species known as gambusia holbrookii or mosquito fish ( “gambusia” ), which is likely to be a predator of the wallum froglet.

18. A method of avoiding any such consequence is to provide a buffer between the base of the sand extraction and the water table, that is, to require extraction not to proceed below a certain level. The council claims, however, that there is insufficient data and information available for, first, assessing satisfactorily the groundwater characteristics of the site, secondly, for predicting with accuracy either the peak or average water table levels, and, thirdly, for establishing the extent of a buffer which will avoid the potential problem. This claim is based upon the opinion of Mr Beck, who considered that 12 months site specific monitoring of the groundwater system was essential in order to provide sufficient information and data.

19. The applicant’s response is that there is sufficient data and information upon which to assess the groundwater characteristics of the site and to set an appropriate limit upon the depth of extraction so as to provide a buffer. The applicant relied upon the expert evidence of Mr Jewell, who assessed the groundwater system by extrapolating from data and information relating to the Tomago sandbed system regionally and who made recommendations about the design of the mining surface so that it will not pass beneath the water table. The applicant’s case is that appropriate conditions can be imposed which will ensure that there is an adequate buffer between the base of extraction and the water table at all times, and that, accordingly, the proposed development will have no adverse impact upon groundwater. Consequently it will have no impact upon the wallum froglet and rehabilitation can be successfully carried out upon the site.

20. I have come to the conclusion that there is no justification for refusing development consent by reason of the groundwater issue. That follows from my analysis of the respective positions taken by Mr Beck and Mr Jewell. Mr Beck did not go so far as to say that it was impossible to assess the groundwater system and set a sufficient buffer. Rather, he was critical of extrapolating regional data to derive site specific characteristics, and he recommended, as I have indicated, that the assessment and consequent limit of mining be based on a site specific monitoring programme carried out over 12 months. Mr Jewell said that site specific monitoring over a period of 12 months was desirable, but he said, in giving oral evidence, that site specific monitoring would merely have the effect of refining the details of the assessment which he had carried out, and that it would not have a significant effect upon the recommendations which he had made. I accept Mr Jewell’s opinion.

21. The issue, then, is the nature of the conditions of consent which should be imposed. Both parties furnished draft conditions which would involve a programme of site specific monitoring of the groundwater for a period of 12 months, and which will set out or refine limits on the depth of extraction. There are three crucial differences between their respective draft conditions.

22. First, the council seeks a deferred commencement condition under s 80(3) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). That would mean that the development consent would not become operative until the council was satisfied that the groundwater monitoring programme had been carried out and that the consequent mapping and setting of extraction limits were appropriate. The applicant, on the other hand, does not wish development consent to be deferred, but instead seeks a condition which would require a 12 month groundwater monitoring programme to be completed before extraction operations commence. I accept Mr Jewell’s analysis of the groundwater conditions on the site and I accept that his assessment is based on information sufficiently certain to assess the likely impact of the proposed development. I also accept that a 12 month monitoring programme is desirable for the purpose of refining the maximum level of extraction. Therefore I do not consider that the groundwater characteristics of the site are so uncertain as to require a deferred commencement condition, and I propose to adopt the applicant’s draft condition so far as this aspect is concerned.

23. The second crucial difference is the intensity of the 12 month monitoring programme. Mr Beck recommended that monitoring be carried out on a weekly, and in certain circumstances daily, basis; Mr Jewell recommended monthly periods. It can, however, be inferred from Mr Jewell’s evidence that the daily or weekly monitoring which Mr Beck espouses is not necessary to establish the levels of the water table, since those levels are already established to a reliable degree by the results of monitoring over five years in both dry and wet conditions, being results upon which Mr Jewell relied. The purpose of the proposed 12 month monitoring programme is only to refine the details of the groundwater characteristics already established, and to confirm or adjust the extraction depths to be followed in the sand mining operation. Accordingly, I accept the applicant’s draft condition in preference to the draft condition of the council.

24. The third crucial difference relates to the maximum depth of extraction. The council proposes that the “limit of mining” must be whichever is the higher of RL 9.75 AHD or 1.25 m of the “peak mean annual water table” meaning “the highest of the mean (average) annual Water Table positions determined by the Groundwater Assessment”. The applicant, on the other hand, proposes that the maximum extraction depths comply with the following requirements:

(a) No extraction is to occur below RL 9.0m on any part of the Extraction Area.

(b) Extraction at any given point should not occur beneath the maximum predicted elevation of the water table at that point.

(c) The maximum extraction depth at any given point should have a minimum clearance of 1 metre above the mean position of the water table at that point.

25. Furthermore, extraction at any point is not to be permitted to a greater depth than that shown on the post extraction landform map which was tendered as ex “26” in these proceedings.

26. Once again, I propose to adopt the applicant’s draft condition, and my reasons for so doing are as follows. The level of RL 9.75 m suggested by the council has two components. One is a level of RL 9.50 m recommended by Mr Beck as being 1 m above the average peak mean water table level of RL 8.5 m which he derived by correlating the water table data presented by Mr Jewell and the average annual rainfall figures which were set out in Dr Clements’ report. The second component is a level of 0.25 m recommended by Mr Beck to account for the predicted rise in the water table following removal of vegetation. I accept Mr Jewell’s opinion that both these components are unnecessarily conservative, and they are, I think, influenced by Mr Beck’s thesis that the information and data currently available about groundwater characteristics is too uncertain to be reliable. Mr Jewell calculated a mean or average water table level of RL 8.0 m, and, taking into account the necessity for a 1 m buffer, derived a base level of RL 9.0 m. That is also the base level required by HWC and the Court in relation to the 1990 consent area. As to the 0.25 m component, Mr Jewell accepted a previous study indicating that the water table will rise to a maximum of 0.25 m after the removal of vegetation, but he said that it was taken into account in the 1 m buffer upon the basis that the 0.25 m rise would be localised, that it would reduce to zero moving away from the mining path, and that revegetation would decrease it further.

27. There is, of course, a question of ensuring that the limits upon the depth of extraction are complied with, especially since the creation of the mirror lake on the 1990 consent area appears to have occurred because extraction was deeper than the limits which were set in the conditions of development consent which related to that area. Mr Marshall gave evidence of laser technology and procedures available to survey the lateral extent of extraction and the depth of extraction. Conditions of consent requiring the use of that technology and those procedures are incorporated into the conditions of consent which I propose to adopt.

Impact upon the wallum froglet

28. The wallum froglet ( crinea tinnula ) is listed as a vulnerable species under sch 2 of the Threatened Species Conservation Act 1995 (“the TSC Act”) and is the only threatened or vulnerable species considered likely to occur on the site.

29. I have concluded that the proposed development is not likely to have a significant impact upon the habitat or population of the wallum froglet, and development consent should not be refused on this ground.

30. Both Dr Mahoney and Dr Smith found populations of the wallum froglet in areas adjacent to but outside of the site. However, Dr Mahoney found small numbers of the wallum froglet in two areas, which he numbered 7 and 10 and which he considered were within the site. On the other hand, Dr Smith concluded, from his examination of the relevant maps, that neither area 7 nor area 10 was actually within the boundary of the area to be extracted, and I think that ultimately the council accepted that position because, in his submissions, Mr Kildea, appearing for the council, conceded that there were not likely to be populations of the wallum froglet within the mining path.

31. Nevertheless, Dr Mahoney suggested, and Dr Smith accepted, that a 20 m buffer zone should be established around areas 7 and 10, and the applicant indicated that it was willing to accept the imposition of a condition to that effect.

32. A more critical aspect concerning the wallum froglet, however, was the question of whether the proposed development would impact upon the groundwater conditions. Dr Mahoney pointed out that alteration of the groundwater conditions was likely to have an indirect adverse impact upon populations of the wallum froglet for two reasons. First, if sand extraction results in a lowering of the water table and drier conditions, then there would be an impact upon the habitat of the wallum froglet, because the species is reliant upon wet habitats. Secondly, the formation of mirror lakes presents a habitat for the gambusia which is a voracious predator and likely to threaten the local populations of wallum froglet. This potential risk from an alteration in groundwater conditions was also recognised by Dr Robertson.

33. Dr Smith considered that the potential risk from the gambusia was overstated by Dr Mahoney. He said that the wallum froglet breeds in shallow temporary pools, whilst the gambusia “appears to favour permanent streams and deep open pools”. He also said that the drying out of ephemeral wetlands after the removal of the adjacent dune “is unlikely to affect the wallum froglet”.

34. In any event, I accept Mr Jewell’s assessment of the groundwater conditions, and, in particular, his assessment of the fluctuation in the levels of the water table. Mr Kildea properly conceded that, if the Court was so satisfied, then the proposed development is not likely to have an adverse impact upon the wallum froglet.

35. The two matters raised by Dr Mahoney, that is, groundwater conditions and the gambusia , were basic to his application of the eight - point test set out in s 5A of the EP&A Act from which he concluded that there was likely to be a significant affect on the wallum froglet and that consequently a species impact statement was required under s 78A(8)(b) of the EP&A Act. Thus, he concluded that if the hydrology was to be altered by the sand extraction, a significant area of known habitat would be modified (s 5A(c)), and that, although sand mining is not listed as a threatening process under sch 3 of the TSC Act, the gambusia is so listed and thus does not meet s 5A(g). Dr Smith also applied the eight-point test and reached a contrary conclusion.

36. I think that Dr Smith is correct, given that I have accepted the evidence of Mr Jewell that there is not likely to be a significant alteration of the groundwater conditions, and given that, if the conditions controlling the depth of sand extraction are observed by the applicant, there are not likely to be mirror lakes or a consequent preying by the gambusia.

Archaeology

37. There is an issue as to whether or not sand extraction from the site will damage or destroy any Aboriginal relics, and that depends on an archaeological assessment of the site.

38. There have been previous archaeological surveys of areas in and around the general region of the site (Mr Baker noted that there were at least 11 such surveys). More importantly so far as regards the site, Brayshaw in 1989 carried out a survey of an area which included the site, and found four areas of interest, including one, known as “Site 2”, at least part of which is located within the boundaries of the site. In 1993, Barber conducted an archaeological examination of Site 2 which indicated that Site 2 might be more extensive than postulated by Brayshaw. Furthermore, a comprehensive regional archaeological survey of Aboriginal sites in the Newcastle Bight area was carried out by Dean-Jones in 1990.

39. Mr Baker and Dr Craib were united in the opinion, derived from the available material, that a comprehensive archaeological assessment of the whole site should be undertaken before sand was extracted. They were not united, however, in the significance of what was likely to be found. Mr Baker’s opinion was that the northern dune was a Pleistocene transgressive dune and, in comparison with a nearby site known as Moffats Swamp where deep archaeological deposits were found, there was a “high potential” that the site would contain subsurface archaeological evidence of Aboriginal activity. Dr Craib, on the other hand, thought that the significance of what was likely to be found was not high. In his report, he said that “[g]iven the regional investigation by Dean Jones, it is reasonable to assume that there is at least a moderate probability that cultural materials exist on the dunes” .

40. The council seeks, and the applicant is prepared to be bound by, a condition which requires subsurface archaeological assessment to be carried out on the site, in accordance with a methodology which Dr Craib furnished. The only issue between the parties is whether that condition should be a deferred commencement condition, which is what the council seeks, or a condition requiring the assessment to be completed before any extraction operations commence upon the site, which is what the applicant seeks. I am not persuaded that the condition should be a deferred commencement condition because, for two reasons, I do not think it is necessary for the council to be further satisfied about the archaeological issue.

41. First, some doubt was cast by the evidence upon Mr Baker’s assertion that the results of a further assessment of the site are likely to be significant. Dr Craib was of the opinion that what is likely to be found is no more than “common components of the archaeological landscape in this region” which Dean-Jones had reported upon. Furthermore, while Associate Professor Short agreed with Mr Baker that the northern dune is a Pleistocene transgressive dune, he was of the opinion that the dune had not been “reworked”, that is, affected by marine and aeolian (wind blown) processes after Aboriginal occupation, which made it less likely, as he said, in giving oral evidence, that material could be buried.

42. Secondly, so long as the results of the assessment are furnished to the National Parks and Wildlife Service (“the NPWS”) (as the draft conditions contemplate) and so long as a protocol for the discovery of relics is developed in consultation with the Worimi Local Aboriginal Land Council and approved of by the NPWS before the commencement of extraction (as the draft conditions also contemplate) then damage or destruction of any Aboriginal relic is likely to be avoided.

The planning context

43. There are three matters which require consideration in the planning context. The first relates to the permissibility of the proposed development, and requires consideration of the Port Stephens Local Environmental Plan 1987 (“the 1987 LEP”) and the draft Port Stephens Local Environmental Plan 1999 (“the draft LEP”). The second relates to whether or not the proposed development is consistent with the planning objectives of :

(a) the 30 Year Plan for Port Stephens (“the 30 year plan”);

(b) the Hunter Regional Environmental Plan 1989 (“the Hunter REP”); and

44. The third relates to the proposed inclusion of the site within the Tomago Sandbeds Nature Reserve.

Permissibility

45. Under the 1987 LEP, the majority of the site is zoned Environment Protection 7(c), and a small portion of the site is zoned Rural 1(a). The proposed development is prohibited in both zones, but it becomes permissible with consent under cl 37 of the 1987 LEP. Clause 37 applies to specified land, which includes the site, and it relevantly provides that the specified land may be developed for the purposes of silica extraction with the consent of the council.

46. Under the draft LEP, the majority of the site is to be zoned 7(a) - Environmental Protection under which development for the purpose of extractive industry will be prohibited, although such development will be permissible with consent in a small portion of the site which is to be zoned 1(a) - Rural Agriculture. At this stage, it is not intended that cl 37 will appear in the draft LEP.

47. The question, then, is whether the making of the draft LEP in the form I have described is certain and imminent, such that it should be given determinative weight in the assessment of the proposed development leading to refusal of development consent.

48. The draft LEP has been publicly exhibited. However, the Department of Mineral Resources has a number of times opposed the deletion of cl 37, stating, in a letter to the council dated 12 January 2000, that it opposed the draft LEP “because of the adverse impact of the proposed Zone No. 7(a) - Environment Protection on extractive resources and mineral deposits of regional and state significance on the Tilligerry Peninsula”. Mr Whitehouse gave evidence that he was present at a meeting in March 2000 between the council, the Department of Urban Affairs and Planning and others at which the Department of Mineral Resources recommended the retention of cl 37 and, at the council’s request, the issue of the retention of cl 37 was deferred. Mr Mitchell conceded in cross examination that the draft LEP had not been submitted to the Minister and that it was still in the process of negotiation.

49. Having regard to that evidence, I am not satisfied that the making of the draft LEP in its present form is either certain or imminent. There is no basis for giving the draft LEP determinative weight, and accordingly the proposed development remains permissible with consent under the 1987 LEP.

Consistency with planning objectives

50. The planning instruments which I have set out above have a number of interlocking objectives relevant to the proposed development. I am satisfied that the proposed development does not fail to take those objectives into account, nor does it fail to comply with the planning principles espoused by them. It is sufficient, I think, to convey my reasons for this conclusion by grouping the relevant objectives into five general principles (in no particular order) and commenting generally upon them in relation to the proposed development.

51. The first principle is to ensure that adverse impacts upon the environment “are minimised” (cl 39 and cl 42 of the Hunter REP and objective 5.3.4 of the NSW Coastal Policy). For the reasons which I have already outlined, I am satisfied that the proposed development will have no adverse impacts upon groundwater quality or quantity, on Aboriginal relics, or on the habitat or population of the wallum froglet. Whilst the site will be disturbed by the extraction of sand, rehabilitation is proposed and I am satisfied that the conditions of consent imposed upon the applicant will ensure that rehabilitation is properly carried out.

52. The second principle requires consideration to be given to the conservation values of the site and the application of conditions which are relevant to post extraction land use (cl 41(1)(a) of the Hunter REP and objective 5.3.4. of the NSW Coastal Policy). Ample evidence concerning the conservation values of the site has been adduced from Dr Clements and Ms du Preez, and the conditions controlling rehabilitation post-extraction will, in my opinion, restore the conservation values of the site in the long term.

53. The third principle requires that consideration be given to the impact of the proposed development upon water quality and availability and the application of conditions which will ensure maintenance of adequate water quality and availability (cl 44(1) and cl 47(1) of the Hunter REP and objective 1.3 of the NSW Coastal Policy). The issue of groundwater quantity and quality is a critical issue in this case, as I have already noted, but, for the reasons I have set out, I am satisfied that there will be no significant deterioration of water quality taking into account the evidence of both Mr Beck and Mr Jewell, and the conditions of consent relating to groundwater monitoring and the depth of sand extraction which are to be imposed.

54. The fourth principle requires that consideration be given to the protection of natural areas of geological, ecological or scenic interest such as dune systems and in particular the recognition of natural conservation values as a means of improving tourism opportunities (cl 21(c) and cl 59(a) of the Hunter REP and p 10 of the 30 year plan). The site will be disturbed by the proposed development, but conditions controlling the method of extraction and the ultimate rehabilitation of the site are to be imposed so that, in the long term, the site’s conservation values will be protected. As to tourism, Ms Artist gave some evidence outlining local tourism opportunities on the Tilligery Peninsula. However, as revealed in cross-examination, she was unable to point to any particular tourism feature of the area which includes the northern dune, and I am satisfied that sand extraction from the site will not impact upon local tourism opportunities.

55. The fifth principle requires the application of ecologically sustainable principles (objectives 5.1, 5.2 and 5.3 of the NSW Coastal Policy and p 10 of the 30 year plan). The assessment of the whole of the development application calls for a cautious approach, since it involves disturbance of a natural area by the extraction of sand from a coastal dune, and the application of the precautionary principle is particularly apt in relation to the groundwater issue. I am satisfied that extraction of sand should not commence until further groundwater monitoring and archaeological investigation is carried out on the site, and conditions requiring these steps are to be imposed as I have already indicated.

The Tomago Sandbeds Nature Reserve

56. The council claims that the development consent should be refused because, if it was to be granted, the site will not be included in what is proposed as the Tomago Sandbeds Nature Reserve. Alternatively, it claims that the prospective inclusion of the site as part of the area proposed for the Tomago Sandbeds Nature Reserve should be taken into account as signifying the importance of the natural conservation values of the site.

57. The applicant tendered a bundle of correspondence relating to a proposal to proclaim a nature reserve over a large area of land principally owned by HWC to be called the Tomago Sandbeds Nature Reserve (“the Tomago proposal”). Its history may be briefly summarised. In late 1997, the Tomago proposal was included amongst a number of proposals for an increase in nature reserves, state recreation areas and national parks within the State, and an opportunity had presented itself to the government to implement what the correspondence refers to as a “fast track proclamation”. In March 1998, the Tomago proposal was classified amongst the proposals having the lowest priority, because investigations were required before it could be proclaimed. Discussions between the NPWS, the Department of Land and Water Conservation (“DLAWC”), and HWC took place over ensuing months. HWC’s position was reiterated many times. It regarded the Tomago area as both a daily water supply source and an important source of water for drought security. It continuously opposed the proclamation of the Tomago proposal. In the face of its concerns, a memorandum of understanding was proposed so that investigations as to the feasibility of the Tomago proposal could proceed. However, no memorandum of understanding appears to have been finalised, and ultimately a joint plan of management of the Tomago area was proposed which would deal with conservation and water extraction capabilities. NPWS suggested legislative change to enshrine a joint plan of management, but that was also opposed by HWC. By the end of 1999, NPWS and HWC negotiations seemed to be proceeding simply in regard to a joint plan of management.

58. This history raises serious doubt as to whether the area which includes the site will ever be the subject of a proclaimed nature reserve. At the very least, it indicates that the Tomago proposal is far from implementation. On that basis, therefore, I place little weight upon the Tomago proposal in the assessment of the development application.

Rehabilitation

59. At the outset, it is appropriate to note that there is no issue in this case concerning threatened species of flora. Dr Clements noted that two species of both State conservation significance and national significance had been recorded on or near the site, that is, Eucalyptus parramattensis subsp.decadens was recorded approximately 200 m south of the site and “potentially” occurs on the site, and Acacia baueri subsp.baueri was found on the eastern end of the northern dune in 1986 by Ms du Preez. As to the former, Eucalyptus parramattensis , Dr Pickard was unable to locate it within 10 km of the site, but he applied the eight point test of significant effect set out in s 5A of the EP&A Act, and concluded that the proposed development “is unlikely to have any significant impact on this species”. As to the latter, Acacia baueri , the evidence is that it has not been listed as threatened or vulnerable under the TSC Act. In any event, Ms du Preez stated that the species had naturally regenerated on the 1990 consent area (although it was subsequently destroyed by the inundation of the mirror lake).

60. The critical issue is, however, the rehabilitation of the site. Ms du Preez and Dr Smith prepared a rehabilitation plan, and, whilst the hearing was proceeding, Ms du Preez and Dr Clements took the opportunity to meet outside the Court and to confer on rehabilitation issues. They agreed upon 10 separate points which were substantially incorporated into the draft conditions about rehabilitation which the council and the applicant have respectively proposed. However, before I turn to consider those draft conditions in detail, it is convenient to make two preliminary observations.

61. The first concerns the likelihood of rehabilitation being successfully carried out. As I have already indicated, the council is concerned that a failure to establish and then comply with conditions controlling potential groundwater impact will result in the creation of a mirror lake similar to that which has occurred on the 1990 consent area, and that in turn will impede or prevent rehabilitation. For the reasons I have earlier set out, I consider that this result is unlikely to occur. However, the council is also concerned that the applicant will not properly carry out or supervise conditions of consent concerning rehabilitation, because it is not in dispute that rehabilitation of the 1990 consent area, quite apart from the mirror lake, has not been wholly successful. In response to this concern, the applicant has offered to put up a bond in the amount of $100,000, and that I think is sufficient to allay the council’s concerns.

62. The second matter concerns the extent to which rehabilitation can restore the pre-extraction vegetation. The EIS stated that the aim of the rehabilitation programme which was proposed was “to re-establish the natural vegetation of the site”. Ms du Preez said that 100 per cent re-establishment of native vegetation was not achievable, because the landform will change post-extraction. Both Ms du Preez and Dr Clements considered that it was reasonable to aim to re-establish 95 per cent of the structural components of vegetation, meaning the species which form the upper, middle and lower storeys of vegetation. In Ms du Preez’s opinion an achievable standard for the re-establishment of characteristic species (meaning species which characterise the vegetation on the site) was 82 per cent. Mr Kildea submitted that conditions which aimed at less than 100 per cent recovery were setting a lower standard than that which was set in the EIS. However, as Ms du Preez pointed out in oral evidence, the setting of numerical standards is unrealistic in itself, and I agree that it is more appropriate simply to require the re-establishment of pre-extraction vegetation. The condition of consent concerning the objectives of the rehabilitation programme is based on such a proposition, taking into account that regeneration may occur in different proportions. The parties agree on this aspect of the condition.

63. I turn now to the draft conditions about rehabilitation which each of the parties has proposed. I propose generally to adopt the conditions which the applicant proposes and my reasons for so doing and the crucial differences between the respective drafts are as follows:

(1) The council proposes that rehabilitation should be carried out in accordance with a rehabilitation programme which is prepared after the groundwater assessment (the subject of a proposed deferred commencement condition) has been completed. The applicant proposes compliance with the rehabilitation programme already prepared by Ms du Preez. In view of my findings about the groundwater issue, I can see no reason to require the preparation of a further rehabilitation programme. I am fortified in that conclusion by the plaudits about the competence and professionalism of Ms du Preez which were bestowed upon her by both Dr Clements and Dr Pickard. (I must say that I have never before heard such statements of praise about the work of another expert given by experts in the witness box).

(2) The council proposes that the appointment of both the plant ecologist or botanist who is to supervise the rehabilitation and the rehabilitation officer who is to carry it out should be approved by the council. The applicant opposes such a requirement. I do not consider it to be necessary, so long as it is made clear that both those persons are to be appropriately qualified for the task;

(3) Both the council and the applicant propose monthly site visits by the plant ecologist or botanist in the first two years of sand extraction, but the council proposes more frequent visits depending upon climatic conditions and seasonal variations. The applicant opposes more frequent visits. I can see no justification for more frequent visits, since monthly visits were acceptable to both Dr Clements and Ms du Preez;

(4) Both the council and the applicant agree on the requirements for quadrats and transects for the recording of species in the early years of rehabilitation, but the council seeks a similar provision for the period after plants have become established, and the applicant seeks a provision in relation to sampling pre-extraction. I consider that the condition should encompass all three periods, and I propose to amend the applicant’s draft accordingly;

(5) The parties are in disagreement about the condition requiring the provision of a bond. I propose to adopt the applicant’s version, because I agree with the applicant that:

(a) the condition should require the bond to be maintained for the duration of development;

(b) the form of the bond should not be prescribed by the condition, but should be as acceptable to DLAWC;

(d) DLAWC should not be able to utilise the bond to itself rehabilitate in circumstances where the applicant is satisfactorily complying with the rehabilitation conditions.

(6) Generally, the condition sought by the council is more prescriptive as to time than that sought by the applicant. For example, the council seeks the furnishing of a report by the plant ecologist or botanist within 14 days of each anniversary of commencement of extraction operations rather than 28 days as the applicant proposes. I can see no justification for a more prescriptive approach;

(7) Finally, the council proposes that members of the local community may attend an annual site inspection of the rehabilitation with both DLAWC and the council. The applicant opposes such a condition. Once again, I can see no justification for it. Reports as to the progress of rehabilitation and compliance with the programme are to be furnished to the council which is the representative of the community’s interest, and this is not a case where representatives of the local community have sought such a condition.

Economic effect

64. The council claimed that it was in the public interest to refuse to grant development consent because the economic benefit to be derived from the silica sand as a resource for the glass manufacturing industry did not outweigh the conservation values of the site.

65. The basis for the council’s case is as follows. The council contends that the real significance of the site depends on its conservation values not on the significance of the resource. The council makes several claims for the significance of the site’s conservation values. They are as follows:

(1) The site represents, according to Dr Clements, “a relatively intact Pleistocene ‘high’ dune … of State, Regional and Local significance” ;

(2) The site is accessible to the public and has significant tourism attraction, as pointed out by Ms Artist;

(3) The site has high flora and fauna value; and

(4) The site is likely to be included in the Tomago Sandbeds Nature Reserve.

66. The council contends that the proposed development will destroy the conservation values of the site because it will adversely impact upon those four elements. First, the northern dune will be in effect removed by the sand extraction; secondly, it will be rendered useless as a tourist attraction; thirdly, there will be a reduction of, and impact upon flora and fauna; and, fourthly, it will not be included in the Tomago Sandbeds Nature Reserve.

67. In addition, the council claims that there are alternative sand resources which are economically viable, and that the extent of the silica sand resource upon the site is less than predicted. The council claims that, when those matters are considered in conjunction with the destruction of the conservation values of the site, it must follow that it is in the public interest to preserve the site from sand extraction and that must outweigh the significance of the resource.

68. However, the evidence does not support the council’s claims for such high conservation values for the site, nor is it free from doubt that alternative resources are economically available, nor is the extent of the resource significantly less than predicted.

69. As to the elements which are said to constitute the site’s high conservation values, I make the following findings:

(1) Dr Clement’s claim about the uniqueness of the Pleistocene dune is not shared by Associate Professor Short who, in a report prepared jointly with Mr J F Meleo, concluded that the northern dune does not have state, regional or local significance from a geomorphological perspective, since “there are numerous examples of intact Pleistocene-age dunes in this region and regions further north on the NSW coast”. Because Associate Professor Short is a geomorphologist, I place more weight upon his opinion than I do upon Dr Clement’s opinion;

(2) As I have earlier explained, Ms Artist was unable to point to any particular tourism potential of the site, and I have rejected the claim that it is of significance in that regard;

(3) The flora and fauna significance of the site is limited. The proposed development is not likely to significantly affect any threatened species of flora and fauna, as I have earlier found. Whilst the extraction of sand from the site will disturb the existing vegetation, a rehabilitation programme will be in place, which I have found is likely to substantially restore the native vegetation on the site. There was no evidence that the sand extraction will have any particular impact upon any fauna of any kind except the wallum froglet, and, for the reasons I have earlier set out, there is not likely to be any adverse impact upon that species;

(4) I have earlier found that the site is not likely to be included in the proposed Tomago Sandbeds Nature Reserve.

70. The question of alternative sources and their economic viability is a complex one. White silica sand is a preferred component of the making of colourless glass because it has a low iron content. Sand with a higher iron content is used for the manufacture of amber glass and other coloured glass. The significance of the sand on the Tanilba northern dune in the applicant’s estimation is that it constitutes a source of white silica sand reasonably close to its main customers, which are the ACI plant at Penrith and the Pilkington (Australia) Ltd plant at Ingleburn.

71. There is, however, no doubt that, through a complex beneficiation process, the iron content of friable sandstone can be reduced so that it is likely to meet the industry specification. The process is more complex than the simple process currently utilised at ACI’s Salt Ash plant. The thesis which the council endeavoured to establish was that a simple process a long distance from the glass manufacturing plants is less economically viable than a more complex process nearer to them, and that there are sources of friable sandstone much nearer to those plants than is the site.

72. Evidence as to the council’s position was given by Mr Stitt and by Dr Sorrentino. Mr Stitt took some samples from four plants which produce construction sand from friable sandstone resources. They were located at Maroota, Newnes Plateau, Somersby and Mittagong, each of which is closer in distance than Tanilba to the main customers of the applicant. He put each of those samples through some laboratory testing and concluded that the sand from Maroota and Newnes Plateau would meet the industry iron content specification of 0.03 per cent. Then, based on various assumptions as to costs and other relevant data, he ran models to reach a preliminary financial analysis which indicated that a plant co-sited with the sand operations at either Maroota or Newnes Plateau could be profitable and could allow for cost reductions to be made for sand supplied to glass manufacturers.

73. Dr Sorrentino carried out a similar exercise to conclude that silica sand obtained from friable sandstone “will cost users no more than what they are currently paying” and, on the assumptions which he made, would be more likely to deliver the product to the applicant’s customers at a price between 4 per cent and 17 per cent lower than that currently charged by the applicant.

74. The applicant took issue with the financial modelling carried out by Mr Stitt and Dr Sorrentino. Mr Alste stated that their assumptions as to the prices exworks and delivered from Salt Ash were much higher than is in fact the case. The actual prices were the subject of documents which were tendered under a confidentiality order, and were accordingly not available to the council’s experts, but, applying the actual costs to the graphic representation of “levellised cost” which Dr Sorrentino produced, Mr Alste stated that there would be a negative and not a positive return. Mr Alste also pointed out that the council’s witnesses assumed that the total tonnage per year produced by the ACI though its Salt Ash plant is 250,000 tonnes when in fact it is 200,000 tonnes, and that they failed to take into account the loss of other production from Salt Ash if it is to be relocated. Mr Alste said that the variability of the quality of the friable sand deposits and the high risk of investing in a full scale plant would require a pilot trial, and it would take about five years to prove the reliability of any such alternative source, to secure planning approvals and conduct the trial.

75. Mr Wait also had reservations about the evidence of Mr Stitt and Dr Sorrentino. He concluded that the models which they adopted were not inappropriate, but that there were errors in their application, and “some generalisations about inputs which require verification and some reservations about assumptions employed”.

76. There were other matters which also cast doubt upon the evidence of Mr Stitt and Dr Sorrentino. First, the current maximum iron content specification is 0.02 per cent not 0.03 per cent, and accordingly the results of Mr Stitt’s laboratory analysis would indicate that sand from Newnes Plateau and Maroota would fail to meet a specification of 0.02 per cent. Secondly, Mr Higginbotham noted that the maximum level of iron is currently being exceeded by a significant amount of the Penrith plant. He conceded in cross examination that the sand itself was only a small part of that problem since it was also a consequence of high levels of iron in other components of the processing such as external cullet (broken recycled glass) and pickup (cross contamination from other batches mixed in the plant). He also conceded that it was a technical problem capable of a technical solution. But Mr Higginbotham said that a technical solution comes at a cost, and, for example, changes to the batch plant at Penrith to eradicate or reduce the problem could cost in the vicinity of $2 to $3 million dollars. Thirdly, although Mr Whitehouse, giving evidence from the perspective of the Department of Mineral Resources, thought that friable sandstone might be a suitable alternative resource in the long term, he said that, on the information presently available to the Department, he could not say to what extent that might occur or whether or not it might be viable at all.

77. There is, therefore, considerable doubt as to the economic viability of friable sandstone deposits as an alternative resource for white silica sand, and I am unable to conclude that the white silica sand at the site is anything but a significant resource which is appropriate for exploitation.

78. The extent of the white silica sand at the site is also a factor in its significance. The estimate in the EIS was that the size of the resource is about 1,650,000 tonnes, and the life of the resource, at a rate of extraction of about 100,000 tonnes per annum, is approximately 16 years. Mr Beck’s initial calculations were that the total volume was likely to be between 560,000 tonnes and 640,000 tonnes, and accordingly, at that rate of extraction, the life of the resource less than six years. That estimate was based upon the adoption of all his recommendations regarding the groundwater conditions and the depth of extraction. Accordingly, if Mr Beck’s calculations were to be adopted, the short term life of the resource would reduce its significance. But Mr Marshall gave some estimates too. He thought that the size of the resource was about 1,500,000 tonnes based upon the assessment and recommendations of Mr Jewell and, at the same extraction rate, the life of the resource was about 15 years. Mr Beck did not substantially disagree with Mr Marshall’s calculations if Mr Jewell’s assessment and recommendations were adopted. Since I have accepted Mr Jewell’s evidence, as I have earlier explained, it follows that the extent of the resource may be accepted as being 1,500,000 tonnes based on Mr Marshall’s calculations. That does not differ substantially from the estimate of 1,650,000 tonnes predicted in the EIS, and does not lead to a conclusion that the life of the resource is so short that it must be regarded as insignificant.

79. My ultimate conclusion, therefore, is that the conservation values of the site do not outweigh the significance of the resource.

80. I should add for completeness that the council tendered a report from Mr Abelson, who concluded that the proposed development would not increase employment in the sand mining industry in New South Wales, but, even if it did, it would not necessarily confer social and economic benefits on the people of New South Wales. Mr Abelson was not called for cross examination, and his evidence was not the subject of any emphasis in the proceedings. Accordingly, I do not place significant weight upon it, and it does not alter my conclusion about the significance of the resource.

Adequacy of the EIS

81. The proposed development is an extractive industry and falls within the list of designated development in sch 3 of the Environmental Planning and Assessment Regulations 1994 (“the Regulation”). As such, the development application was required to be accompanied by an environmental impact statement pursuant to s 78A(8)(a) of the EP&A Act. Clauses 54 and 55 of the Regulation prescribe the contents of an environmental impact statement and, in particular, cl 54A requires an environmental impact statement to include the matters referred to in any specific guidelines which apply to the development. The specific guidelines which apply are called “Extractive Industries - Dredging and Other Extraction in Riparian and Coastal Areas” (“the EIS guidelines”).

82. The principles which govern the extent to which an environmental impact statement must deal with the matters it is required to cover have been set out in a number of authorities which were collected and outlined in Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21 at 30 - 31 and it is unnecessary to repeat them here. However, the crux of the council’s claim is that the EIS fails in a number of respects to comply with those principles. Mr Kildea contended that it contained a number of omissions and inaccuracies which had the result that the EIS was inadequate to alert the council and the public to the inherent problems of the proposed development and that the EIS was insufficiently specific, comprehensive or objective.

83. The council’s particular criticisms of the EIS and my findings about them are as follows:

(1) Groundwater: The council claims, first, that the EIS did not include site specific groundwater monitoring and investigations; secondly, that, by omitting reference to the possibility of the creation of a mirror lake, it failed to failed to comply with cl 6 and cl 7(b) of the EIS guidelines; thirdly, that it contained misleading and inconsistent statements regarding the depth of extraction; and, fourthly, that it omitted the accompanying diagrams to the study of D J Douglas and Partners.

However, the EIS did refer to the groundwater conditions, noting the fluctuations of the water table (section 5.3.2) and the contours determined by D J Douglas and Partners. In particular, it noted the earlier requirement of HWC that a 1 m buffer be established and that the depth of extraction be limited to 9 metres AHD. It set out the limits of extraction which would comply with the HWC specification, and it reiterated those limits throughout the document. It drew the conclusion, supported by an extract from an earlier letter from HWC, that, if the limits of extraction were complied with, the likely impact upon groundwater would be negligible.

None of its omissions in relation to groundwater were, in my opinion, critical to directing the mind of the council or the public to the groundwater issue. As to site specific monitoring, Mr Jewell’s evidence, to which I have already referred, was that the regional data about groundwater conditions then available was adequate to establish the depth of extraction, and that on site monitoring is desirable simply to refine the detail. Similarly, the omission of the accompanying contour diagrams was simply a matter of detail. It would have been preferable to note the possibility of the creation of a mirror lake, especially since the EIS several times stated that ACI had a successful record of rehabilitation which, considering that the mirror lake occurred because extraction went below the set limit, was far from the case. But the EIS emphasised the necessity to ensure that extraction would not go deeper than the buffer above the water table and that was what it was required to do in order to meet its obligations as to the content of the EIS.
Mr Peacock admitted in cross-examination to an inconsistency in the references in par 3.4.1 and p 6.2 of the EIS in relation to the limits on the depth of extraction, but, again, the error is one of detail and would not fail to alert the council or the public to the necessity for a maximum depth of 9 m AHD.

(2) Archaeology: The council claims that the EIS failed to identify and assess a known Aboriginal site.

That is not correct. In preparing the EIS, Mr Peacock relied on the Brayshaw investigation, and the EIS clearly identified Site 2 as a site of significance. The EIS did not refer to any later studies, particularly that of Barber, which, as I have earlier said, suggested that Site 2 was more extensive than Brayshaw postulated, but that does not alter the fact that Site 2 is the only known Aboriginal site.

It is true that the evidence adduced in this case supports the need for further archaeological investigation, but the EIS noted, in section 6.12, that if any further sites were to be discovered, the NPWS was by statute required to be notified.

(3) The wallum froglet: The council points to a lack of current survey data and assessment of the impacts of the proposed development on the wallum froglet.

In order to substantiate the claim in the EIS that the proposed development would have no impact upon any threatened species, Mr Peacock relied upon a fauna survey of the northern dune carried out in 1997 by Dr Leong Lim and Dr Arthur White. That survey was appended to the EIS, and it contained, on p 21, a statement that to the effect that, although the site offered some habitat for the wallum froglet, it was not found on the site during the survey and the authors suggested that the species would “be low in numbers if they are present at all”. The authors concluded that any impact from the proposed development upon the wallum froglet would be “at most marginal and insignificant”.

(4) Economic impact: The council claims that the discussions in the EIS of possible economic impacts of the proposed development are incomplete and superficial.

(5) Requirements of authorities: The council claims that the EIS failed to address specific issues raised by DLAWC, HWC and the NPWS.

As to the requirements of HWC, the council refers to a letter dated 4 March 1996 (which is quoted in section 5.3.2 of the EIS) in which HWC required water quality monitoring parameters to be set out in the EIS. In cross-examination, Mr Peacock conceded that those parameters had not been set out in detail, but the requirement was met generally because in section 4 the EIS proposed an environmental management programme and specified that it was to include monitoring of the groundwater table.

As to the requirements of DLAWC, the council referred to a letter dated 26 March 1996 (a copy of which was annexed to the EIS) in which DLAWC set out its requirements in relation to water management issues. Mr Peacock claimed that its requirements had generally been met although not in detail.

In a letter dated 18 March 1996, the NPWS made a number of suggestions as to the content of the EIS, and in particular suggested that an archaeologist might be appointed to identify potential Aboriginal sites. Mr Peacock pointed out that most of its suggestions were followed, but a new archaeological study was not commissioned, and he relied instead on the Brayshaw study.
I repeat again that it would have preferable for the EIS to attend to these matters in detail rather than in general terms. But I cannot conclude that the omission of detail resulted in a failure of the EIS to alert the council and the public to inherent problems, because, as I have earlier pointed out, issues of groundwater and Aboriginal sites were dealt with in the EIS in a way which, in my opinion, was sufficiently comprehensive.

(6) Change in the proposal: As would be supposed, since groundwater impact was a crucial issue, a considerable part of the hearing was devoted to matters concerning the depth of extraction, the definition of extractable sand and the post-extraction landform. There was examination-in-chief and cross-examination of experts about whether the post-extraction landform contours (set out in ex “26”) were accurate in view of the pre-extraction groundwater monitoring and archaeological surveys which are to be carried out, and about the precise depth of extraction taking into account the presence of coffee rock (or Waterloo rock or indurated sand, as it was variously called).

All this led Mr Kildea to submit that the proposal had changed, and that the Court could not now be certain what precisely was proposed. Mr Robertson, appearing for the applicant, responded by saying that there have been no significant changes to the proposal, because the area affected by extraction remains the same, the method of extraction remains the same, the depth of extraction has not been significantly changed, except that it has become more conservative since the EIS was published, and the proposals for rehabilitation have not changed.

Golden v Coffs Harbour City Council

(7) Inaccuracies: The council pointed to two specific inaccuracies as indicative of the general inadequacy of the EIS. One was the reference to the size and life of the resource. The evidence, as I have earlier pointed out, established that the size of the resource is likely to be about 1,500,000 million tonnes, which, at a rate of extraction of about 100,000 tonnes per year, would yield a life of 15 years. The EIS generally referred to those figures as 1,650,000 and 16.5 years, but in some parts these figures were referred to as 2 million tonnes and 20 years respectively. Mr Peacock conceded that the latter figures were errors, and resulted from inadequate checking of the final document.

The other error is the reference to the industry specification of the iron content of silica sand as being 0.03 per cent, whereas in fact that specification had changed to 0.02 per cent (and 0.01 per cent in some cases) before the EIS was published.
I do not think that either of these errors is material and they could not have misled the council or the public as to the inherent problems in the proposed development.

84. In summary, I have come to the conclusion that the EIS is far from perfect, but a standard of absolute perfection is not required. It has shortcomings in matters of detail and emphasis, and contains some inaccuracies, but, as pointed out by Hutley JA in Prineas v Forestry Commission of New South Wales and Ors (1984) 53 LGRA 160 at 163, “… it is almost impossible to conceive an E.I.S. which literally complies with everything which the regulations require”. In my opinion, the EIS substantially complied with the relevant statutory requirements, and did contain sufficiently comprehensive information about the proposed development to alert the council and the public to its inherent problems.

Conditions of consent

85. Part 13 r 16(e) of the Land and Environment Court Rules 1996 requires the council to file and serve any conditions which it would seek to impose if the Court were to grant consent, and the applicant may file conditions in response. Sets of draft conditions were respectively filed in compliance with that rule. Directions were given at the close of the hearing before judgment was reserved for the filing of submissions on those respective sets of draft conditions. That direction resulted in the filing of submissions and alternative sets of draft conditions. I have considered all the documents which were filed but I have focussed attention on the council’s second amended draft conditions filed on 5 July 2000 (“the council’s draft”), and the applicant’s updated draft conditions dated 7 July 2000 (“the applicant’s draft”).

86. I have decided to substantially adopt the applicant’s draft rather than the council’s draft. The reason for so doing is that I do not propose to impose deferred commencement conditions for the reasons which I have set out when dealing with the groundwater, archaeology and rehabilitation issues. The consequence is that the form of the council’s draft, based on deferred commencement conditions, is not generally appropriate and it does not readily lend itself to redrafting so as to excise the deferred commencement conditions.

87. However, it is important to note that, of the council’s 58 draft conditions, the applicant’s draft incorporates 35 of them, although not in precisely identical terms.

88. The principal difference is that the council’s draft is based upon the council taking a close supervisory role, or, to adopt Mr Kildea’s submission, the council giving its approval to each crucial stage of the development before inappropriate action is taken by the applicant which later cannot or may not be able to be remedied by the applicant. The council’s stance is based upon the council’s assertion that environmental damage has occurred on the 1990 consent area and its occurrence has not been explained by the applicant. In particular, the council points to the creation of the mirror lake. There is no doubt that a mirror lake was formed - it is there for all to see, and the applicant does not deny that it occurred because sand was excavated below the maximum permitted extraction depth. There is also no doubt that it is desirable that a mirror lake should not be formed because of the consequences I have earlier set out. But I agree with Mr Robertson’s submission that the Court has not examined in detail the environmental consequences of the mirror lake or any other alleged environmental damage occurring in the 1990 consent area. Those matters are irrelevant to this appeal. This appeal is concerned with the proposed development, and I am satisfied that the applicant’s conditions do impose obligations upon the applicant which, if they are complied with, will serve to avoid or mitigate environmental harm. Moreover, the applicant will be required to put up a bond to secure the rehabilitation programme, and, of course, there are remedies available to the council or any person if the applicant should breach the conditions of consent.

89. I have, therefore, adopted the applicant’s conditions, but I have made some alterations which are as follows:

(1) I have inserted a definition of “these proceedings”, since that expression appears in a number of conditions, and ought to be clearly defined;

(2) As a general matter at the commencement of conditions, I have inserted a reference to the development being carried out in accordance with the EIS as amended by the conditions or by any assessment, surveys or plans prepared in accordance with the conditions. Although Mr Robertson asserted that the applicant’s draft and the annexures to the conditions in effect replace the EIS, I consider that the EIS sets out the basic parameters of the proposed development and ought to be incorporated into the development consent by way of condition;

(3) I have amended condition 1 to refer to a cultural heritage management plan, and I have made a consequent amendment to condition 22. The applicant did not object to this course;

(4) It bears repeating that the groundwater issue is the most crucial issue in these proceedings, and any impact upon groundwater quality or quantity is likely to result in other environmental impacts. Conditions 12 - 19 set out a groundwater monitoring and management regime with which I am satisfied, as I have earlier explained. However, I have made two additions. First, I have inserted a general condition requiring all practicable measures to be taken to ensure that there is no adverse impact upon groundwater. This follows generally the council’s draft condition 19. Secondly, I have inserted a requirement to furnish the annual report concerning the results of the groundwater monitoring programme to the council as well as to DLAWC. This accords with the applicant’s submissions;

(5) I have made reference to the suitability of the qualifications of the hydrogeologist and the rehabilitation officer in conditions 13 and 28 respectively;

(6) I have altered condition 32 in relation to sampling and recording of vegetation in the way I have earlier outlined.

90. As I have said, the applicant’s draft incorporates 35 of the 58 conditions in the council’s draft. I have dealt with the remaining 23 conditions in the council’s draft in the following way:

(a) Six conditions appearing in the council’s draft have been incorporated substantially into the conditions. They (and the place where they now appear) are 6 (22), 11 (general - preamble), 12 (47(a)), 19 (groundwater - preamble), 55 (46(b)), and 56 (43(b));

(b) Conditions 9, 26 and 27 have been omitted entirely because they relate to the council’s stance on the close supervisory role, which I have rejected as explained above;

(c) Conditions 1, 2 and 3 are deferred commencement conditions which I have rejected for the reasons earlier given. Conditions 16, 17 and 18 relate to groundwater monitoring and conditions 21, 22, 23, 24 and 25 relate to rehabilitation, but, for the reasons earlier given, I prefer the applicant’s draft in relation to these issues;

(d) The applicant objected to condition 5 as merely restating the law and thus as being unnecessary; and conditions 29 and 30 which provide for buffer zones on land between the extraction area and Oyster Cove Road and the Tanilba Bay residential area respectively, on the basis that they cover land which is not in the control of the applicant. I agree with the applicant’s objection and I have omitted these conditions.

91. Finally, the conditions which I propose to impose refer to a number of annexures. For example, condition 5 refers to the extraction area plan as being “annexure 1”. It is, of course, impractical, if not impossible, to attach each of those annexures to this judgment. I propose, therefore, to prepare a full set of conditions, including the annexures, which I will sign for identification and which will remain with the file. An exact replica will be given to each of the parties. For the purpose of this judgment, the conditions are annexed and they refer to the annexures, without them being attached.

Orders

92. In accordance with the foregoing, my final orders are as follows:

(1) The appeal is upheld.

(2) Development consent for the extraction of white silica sand from the northern dune at Tanilba on the Tilligerry Peninsula is granted subject to conditions. The conditions are those which appear in the document entitled “Conditions of Consent” signed for identification and placed with the Court’s file.

(3) The exhibits, except annexure 2 to volume 2 of exhibit A and exhibits F, 5, 8, 13, 14, 16 and 26, may be returned.

93. I make no order as to costs.

New South Wales Glass And Ceramic Silica Sand Users Association Ltd

Port Stephens Council

Property: Part of Northern Dune, Tanilba

Conditions of Consent

DEFINITIONS

Extraction Operations:

· includes the extraction of sand, the transport of extracted sand on and from the site, the reshaping of land from which extraction has occurred and the prior clearing of vegetation to enable those activities to be carried out;

· but does not include groundwater monitoring, sub-surface archaeological sampling or rehabilitation works.

These proceedings - means the class 1 application No 10013 of 2000 between New South Wales Glass And Ceramic Silica Sand Users Association Ltd (ACN 002 890 226) as applicant and Port Stephens Council as respondent

NOTE: Conditions 16, 17, 20, 22 and 36A below require certain activities to be carried out before the Extraction Operations may occur.

GENERAL

The development shall be in accordance with the proposal contained in the Environmental Impact Statement dated May 1999 (which is annexure 2 to volume 2 of Exhibit A in these proceedings) modified by these conditions and any assessment, surveys and plans prepared in accordance with these conditions.

ENVIRONMENTAL MANAGEMENT PLAN

1. An Environmental Management Plan must be prepared and must incorporate the following:

(a) Procedures to be followed by the manager of the Extraction Operations and those persons undertaking the extraction. Those procedures must, as appropriate, incorporate the requirements of this consent concerning groundwater monitoring, extraction depth and area monitoring, aboriginal archaeology, and rehabilitation.

(b) The Erosion and Sediment Control Plan referred to in condition 59 below.

(d) Such other provisions as are necessary to facilitate compliance with the conditions of this consent.

2. A copy of the Environmental Management Plan must be provided to the Port Stephens Council (“the council”) and a further copy must be kept at the Salt Ash Plant for the duration of the Extraction Operations.

3. The Environmental Management Plan must be reviewed, and if necessary updated, annually during the Extraction Operations. The Rehabilitation Supervisor and the Hydrogeologist must be involved in that review process.

4. Before a person is permitted to undertake extraction activities on the site he or she must receive training in relation to the procedures set out in the EMP and referred to above in condition 1(a).

EXTRACTION DEPTH AND AREA

5. Extraction Operations may only occur in the extraction area (the “Extraction Area”) marked on the Extraction Area Plan that is part of Exhibit 16 in these proceedings and Annexure 1 to these conditions.

6. A 20 metre buffer zone, as measured by the applicant and approved in writing by the council, shall be established around areas “7” and “10” as identified in Figures 1 and 2 of the report prepared by Michael Mahony - Assessment of the Status of the Wallum Froglet (Crinia tinnula) in the Northern Dune Area Tanilba Bay that forms part of Exhibit F in these proceedings. Figures 1 and 2 are Annexure 2 to these conditions.

7. The limits of that part of the Extraction Area, in which a part of the Extraction Operations are about to commence, must prior to that part commencing be measured and marked on the site by a qualified geologist or surveyor using a global positioning system in accordance with the procedure set out in the report of Andrew Marshall that is Exhibit 13 in these proceedings and Annexure 3 to these conditions.

8. Extraction of sand, at any given point on the Extraction Area, must not occur below the maximum depth indicated for that point on the Post Extraction Landform Plan that is Exhibit 26 in these proceedings and Annexure 4 to these conditions. The Post Extraction Landform Plan may be amended from time to time by the Hydrogeologist in accordance with condition 18 below, in which case the amended plan prescribes the maximum extraction depth.

9. Before extraction occurs on any part of the land within the Extraction Area, the height (metres AHD) of that part of that land must be measured using a laser level in accordance with the procedure described in the report of Andrew Marshall that is Exhibit 13 in these proceedings and Annexure 3 to these conditions. Markers must then be placed on and around that part of that land to the extent necessary so as to ensure an operator of extractive machinery can clearly identify the height or heights of that part of that land.

10. During the Extraction Operations the height of the land from which sand is being extracted is to be monitored by taking regular measurements using the laser level in accordance with the procedure referred to in the previous condition. Further markers are to be placed to the extent necessary so as to ensure an operator of extractive machinery can clearly identify the depth to which extraction is occurring.

11. Measurements using a laser level in accordance with the above conditions of consent may only be undertaken by a surveyor or geologist with training in surveying techniques, or a person who has been trained in the use of that level by a surveyor or such a geologist.

GROUND WATER

General

All practicable measures must be taken to ensure that the Extraction Operations do not adversely impact on the supply or quality of ground and/or surface water on the Extraction Area on adjoining land.

12. A groundwater monitoring programme (the “GMP”) is to be undertaken by the applicant for the duration of the Extraction Operations.

13. The GMP is to be designed and supervised at all times by a suitably qualified hydrogeologist (the “Hydrogeologist”). The same person need not perform the role of Hydrogeologist for the entire duration of the Extraction Operations.

14. The GMP should generally incorporate the provisions of the Groundwater Monitoring Plan (including the requirement to provide the Department of Land and Water Conservation (“DLAWC”) with an annual report concerning the results of the GMP) that is Annexure 5 to these conditions and is contained in Appendix D to the report of Chris Jewell that is Exhibit 5 in these proceedings. A copy of the annual report concerning the results of the GMP must be provided to the council.

15. The GMP must include monitoring bores within the Extraction Area.

16. Groundwater levels in all monitoring bores being utilised as part of the GMP are to be measured at least monthly for one year prior to the Extraction Operations commencing, and for the following four years. Measurement frequency after the expiry of that period is to be in accordance with the directions of the Hydrogeologist following consultation between the Hydrogeologist and DLAWC.

17. Prior to the commencement of the Extraction Operations, and whenever he or she deems it necessary, the Hydrogeologist must review the maximum extraction depths in the Post Extraction Landform Plan that is Exhibit 26 in these proceedings and Annexure 4 to these conditions. The purpose of such a review is to ensure the maximum extraction depths depicted on the plan comply with the following requirements:

(a) No extraction is to occur below RL 9.0 m on any part of the Extraction Area.

(b) Extraction at any given point should not occur beneath the maximum predicted elevation of the water table at that point.

(c) The maximum extraction depth at any given point should have a minimum clearance of 1 metre above the mean position of the water table at that point.

18. If the Hydrogeologist forms the view that the maximum extraction depths shown on the Post Extraction Landform Plan do not comply with the above requirements, the Hydrogeologist must:

(a) amend that plan to achieve such compliance;

(b) provide the manager of the Extraction Operations with a copy of the amended plan and direct him or her to comply with it in relation to all future extraction; and

19. DLAWC and the Hunter Water Corporation shall be informed immediately of any actions or occurrences which may adversely affect the quality of groundwater flowing from the site to the extent that they would render the groundwater unsuitable for collection for the purpose of use as drinking water.

ABORIGINAL ARCHAEOLOGY

20. Sub-surface archaeological testing is to be carried out prior to the commencement of the Extraction Operations in accordance with the proposal of Bonhomme Craib and Associates that is Exhibit 8 in these proceedings and which is Annexure 6 to these conditions.

21. That proposal may be modified, as required by the New South Wales National Parks and Wildlife Service (“NPWS”), to obtain approval for any permit or permits required under the National Parks and Wildlife Act 1974 in relation to that testing.

22. Prior to the commencement of the Extraction Operations, the results of that testing are to be presented in a report to the NPWS prepared in accordance with any relevant NPWS guidelines existing at the time the report is produced. The council and the Worimi Local Aboriginal Land Council are to be provided with a copy of that report.

Based on that report, a Cultural Heritage Management Plan must be produced in consultation with the NPWS and the Worimi Local Aboriginal Land Council.

Meaning: in the following two conditions the terms “relic” and “Aboriginal place”, and “consent to destroy” have the meaning ascribed to those terms as used in section 90 of the National Parks and Wildlife Act 1974 (“Section 90”).

23. Upon a relic or Aboriginal place being discovered during the excavation operations, other than a relic or place covered by a consent under Section 90, the manager of the Extraction Operations shall immediately notify the NPWS of the discovery and observe any instructions given under the National Parks and Wildlife Act in connection with the preservation of the relic or Aboriginal place.

24. A protocol for the discovery of relics during the Extraction Operations shall be developed in consultation with the Worimi Local Aboriginal Land Council. The protocol shall be submitted to and approved by the NPWS prior to the commencement of the Extraction Operations.

REHABILITATION

25. Areas of the site disturbed by the Extraction Operations are to be rehabilitated in accordance with the following further conditions of consent, and Smith and du Preez’s Rehabilitation Proposal that formed part of Exhibit 14 in these proceedings and which is Annexure 7 to these conditions of consent. To the extent of any inconsistency between the Rehabilitation Proposal and the following further conditions, the further conditions prevail.

26. The objectives of the rehabilitation are to re-establish:

(a) the original vegetation community types, as defined in the vegetation mapping of the site carried out by Nerina du Preez in 1986, which may regenerate at different proportions to the original vegetation due to the lowered post-extraction landform;

(b) the structural components of the vegetation, greater than 2 metres in height, comparable with the pre-extraction vegetation at similar elevations (metres AHD); and

27. All rehabilitation is to be directed and supervised by a qualified plant ecologist/botanist with experience in rehabilitation (the “Rehabilitation Supervisor”). The same person need not perform the role of Rehabilitation Supervisor for the entire duration of the Extraction Operations.

28. A suitably qualified person (the “Rehabilitation Officer”) is to be employed to implement the rehabilitation on a day to day basis under the direction of the Rehabilitation Supervisor. The same person need not perform the role of Rehabilitation Officer for the entire duration of the Extraction Operations.

29. The rehabilitation directed by the Rehabilitation Supervisor should, wherever practicable, utilise current Best Practice in rehabilitation. Where trials of alternate rehabilitation techniques demonstrate those techniques are likely to be more successful than existing rehabilitation techniques, the alternate techniques are to be utilised

30. During the first two years of the Extraction Operations the Rehabilitation Supervisor is to conduct at least 12 site visits per year, for the purpose of quality checking and continuous open communication and consultation with the Rehabilitation Officer and staff managing the Extraction Operations.

31. Only locally collected seed should be used in the rehabilitation.

32. Monitoring of rehabilitation by the Rehabilitation Supervisor to assess compliance with the above stated objectives should be at least 6 monthly for the first two years of the Extraction Operations and then at least annually. Monitoring in both pre and post extraction areas should be conducted along fixed transects at 10 metre intervals. In addition:

(a) for the early years of rehabilitation post extraction, sampling should be in 1 metre x 1 metre quadrats and also include the recording of tree species (number of individuals and heights) in 10 metre x 10 metre contiguous quadrats;

(b) after plants have become established, sampling should be in 5 metre x 5 metre quadrats and also include recording of tree species (number of individuals and heights) in 10 metre x 10 metre contiguous quadrats;

33. Once every year, from the commencement of the Extraction Operations, the Rehabilitation Supervisor is to conduct an inspection of all rehabilitation areas with the Rehabilitation Officer. That inspection may constitute one of the site visits required under condition 30. The Rehabilitation Supervisor must invite an appropriate representative from each of DLAWC and the council to attend the inspection, and must give reasonable notice to those persons of the relevant time and date.

34. The Rehabilitation Supervisor must produce a report on the rehabilitation within 28 days of each anniversary of the commencement of the Extraction Operations. That report must:

(a) include the results of monitoring;

(b) make recommendations concerning future rehabilitation; and

(c) state whether the rehabilitation is being carried out in accordance with the instructions of the Rehabilitation Supervisor.

35. If the Rehabilitation Supervisor considers at any time that the rehabilitation is not being carried out in accordance with this consent, he or she may issue a written direction to the manager of the Extraction Operations to do or not do one or more things to ensure the rehabilitation is carried out in accordance with this consent.

36. If the Rehabilitation Supervisor considers that direction has not been complied with in a reasonable period of time, he or she may report the non-compliance to council and/or DLAWC.

36A. Prior to the commencement of the Extraction Operations, the legal entity undertaking those operations on behalf of the applicant must lodge a $100,000 bond with DLAWC in a form acceptable to DLAWC. The bond must be maintained in that amount until the expiration of 5 years from the completion of all Extraction Operations on the site, unless DLAWC releases the bond on an earlier date. If the rehabilitation of the site fails, at any point in time, to meet the requirements of this consent, DLAWC may do whatever is reasonably necessary to meet those requirements, and may draw on the bond to recover its costs of doing so.

TRAFFIC

37. The intersection of Oyster Cove Road and the proposed sand extraction road shall be clearly identified with a side road junction warning sign and advance truck warning signs.

38. Advanced truck warning signs must be installed at the intersection of Oyster Cove Road and Lemon Tree Passage Road and on Oakvale Road adjacent to the sand processing plant.

39. The proposed sand extraction road adjacent to Oyster Cove Road shall be sealed a minimum length of 40 metres.

40. A weighbridge shall be provided at the Salt Ash Plant. Records of the tonnage of sand transported from the site to that Plant shall be kept and submitted to council 14 days after the last calendar date of each month.

41. A monetary contribution is to be paid to council, pursuant to Section 94 of the Environmental Planning and Assessment Act 1979, towards the maintenance and upgrading of the existing road system. The amount of the contribution is to be 4 cents per tonne of raw material carried per kilometre travelled on the haul route identified on Figure 5.5 of the Environmental Impact Statement dated May 1999. The amount of the contribution shall be varied annually with movements in the Consumer Price Index as published by the Australian Bureau of Statistics and as notified in writing by the council. The contribution is to be paid monthly, due 14 days after the last calendar date of each month.

OPERATIONS

42. All practicable measures must be taken to prevent and minimise harm to the environment as a result of the construction, operation and, where relevant, decommissioning of the development.

43 (a) The Extraction Operations shall comply with all safety requirements of the Mines Inspection Act 1901 (as amended).

(b) The Applicant is responsible for full costs associated with any alteration to or relocation or enlargement of public utilities whether caused directly or indirectly by Extraction Operations.

44. Final landform batters are not to exceed 1:4 (vertical : horizontal).

45. The Applicant shall identify and appropriately protect all hollow-bearing trees in white silica sand depths of 2 metres or less. A hollow is deemed to be a cavity that is at least 10 centimetres in diameter and 30 centimetres deep.

46. (a) Fuel, oil and grease are not to be stored on the site.

(b) Before any mining machinery (other than trucks which transport sand) enters the Extraction Area it must be cleaned to remove all soil and plant material and sprayed with fungicide to limit the introduction and spread of soil pathogens on the Extraction Area. Any truck which transports sand which had soil or plant material on it from any place other than the Extraction Area must be similarly cleaned and sprayed before entering the Extraction Area.

47. (a) The council must be given not less than 14 days written notice of the commencement of Extraction Operations.

(b) The Extraction Operations may only be conducted between the hours of 7 am and 7 pm, Monday to Friday excluding public holidays.

48. Work may be conducted outside approved hours where the delivery of material is required outside the specified hours by police or other authorities for safety reasons. Notification in writing of the times and circumstances of such mining must be provided to the council and the Environment Protection Authority.

49. The approved hours may be varied with the written consent of the council and the Environment Protection Authority only where they are satisfied that the amenity of the residents in the locality will not be adversely affected.

HUNTER WATER CORPORATION INFRASTRUCTURE

50. The position of the existing 200 mm diameter watermain shall be located and marked prior to commencement of Extraction Operations. Safeguards shall be implemented to ensure the integrity of the watermain is not compromised during sand extraction. Access to the watermain and associated surface fittings shall be maintained at all times. The Hunter Water Corporation shall be consulted regarding this matter and supplied with all relevant details.

51. The position of all spear points located within the application area shall be marked and safeguards implemented to ensure the continued operation of and access to those points. The Hunter Water Corporation shall be consulted regarding this matter and supplied with all relevant details. One or more of those spear points may be removed or relocated with the permission of the Hunter Water Corporation.

52. A gate shall be installed on all sand extraction roads that join Oyster Cove Road. The gates shall be locked at all times other than during operating hours. A key shall be made available to Hunter Water Corporation.

AIR

Dust

53. Activities occurring at the site must be carried out in a manner that will minimise emissions of dust.

54. Temporary topsoil and/or material stockpiles and handling areas must be maintained at all times in a condition which minimises wind blown or traffic generated dust.

55. Vehicles transporting material less than 7 mm in size must have their tailgates securely fixed and must be covered at all times after loading and before unloading to prevent wind-blown emissions or spillage. If the nature of the material being transported is such that wind-blown emissions will not occur during transportation, then the vehicle need not be covered.

NOISE

Noise Level Criteria

56. Levels of noise emissions from:

(a) the vegetation clearing and soil stripping phase of the Extraction Operations must not exceed a noise emission criteria of 45dB(A) LA10 (15 minute) at any residence at Tanilba Bay and 41dB(A) LA10 (15 minute) at any residence at Oyster Cove during the day (7 am to 4 pm); and

(b) mining must not exceed an LA10 (15 minute) noise emission criteria of 41dB(A) LA10 (15 minute) at the nearest residence at Tanilba Bay and 36dB(A) at the nearest residence at Oyster Cove during the day (7 am to 4 pm).

· Documenting noise complaints received to identify locations receiving any higher level of impacts.

· Where levels of noise complaints indicate a higher level of impact then actions to quantify and ameliorate any enhanced impacts under temperature inversions conditions should be developed and implemented.

Definition

LA10 (15 minute) is the sound pressure level that is exceeded for 10 per cent of the time when measured over a 15 minute period.

The LA10 (15 minute) noise level must be measured or computed at any point at the residential boundary over a period of 15 minutes using “FAST” response on the sound level meter.
5dB(A) must be added to the measured level if the noise is substantially tonal or impulsive in character.

57. Now not used.

WATER

Pollution of Waters

58. Except as may be expressly provided in the licence, the licensee must comply with section 120 of the Protection of the Environment Operations Act 1997 prohibiting the pollution of waters.

Stormwater and Sediment Control

59. An Erosion and Sediment Control Plan (“ESCP”) must be prepared and implemented which describes the measures that will be employed to minimise soil erosion and the discharge of sediment and other pollutants to lands and/or waters during construction activities. The ESCP must be modified during the Extraction Operations as required, to minimise soil erosion and discharge of sediment and other pollutants to lands and/or waters during extraction activities. The ESCP should be consistent with the requirements of such plans outlined in Managing Urban Stormwater: Soils and Construction (available from the Department of Housing).

60. Any water discharged to the waters of Big Swan Bay must meet the provisions of the Clean Waters Regulations 1972 for Class P: Protected Waters in accordance with Schedule 2 - Restricted Substances and must:

(i) have a biochemical oxygen demand of not more than 20 milligrams per litre; and

(ii) have a non-filterable reside of not more than 30 milligrams per litre; and

(iii) be visually free of greases, oils, solids and unnatural discolouration and free of settleable matter; and

(iv) not be of pH value of less than 6.5 or more than 8.5 and must not induce a variation of the pH value of the receiving waters of more than 0.5.

CITATION:	New South Wales Glass and Ceramic Silica Sand Users Association Ltd v Port Stephens Council [2000] NSWLEC 149
PARTIES:	APPLICANT New South Wales Glass and Ceramic Silica Sand Users Association Ltd RESPONDENT Port Stephens Council
FILE NUMBER(S):	10013 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Development :- designated development - silica sand mining - groundwater - fauna - archaeology - rehabilitation - economic effects - adequacy of the EIS - weight of draft LEP - consistency with planning objectives - weight of nature reserve proposal
LEGISLATION CITED:	Draft Port Stephens Local Environmental Plan 1999 Environmental Planning and Assessment Act 1979 s 5A, s 78A(8)(b), s 80(3), Environmental Planning and Assessment Regulation 1994 cl 54, cl 55, sch 3 Hunter Regional Environmental Plan 1989 cl 21(c), cl 39, cl 42, cl 41(a), cl 44(1), cl 47, cl 59(a) Port Stephens Local Environmental Plan 1987 cl 37 Threatened Species Conservation Act 1995 sch 2, sch 3
CASES CITED:	ACI Operations Ltd v Port Stephens Shire Council and Ors (Bignold J, NSWLEC, 14 December 1990, unreported); Golden v Coffs Harbour City Council (1991) 72 LGRA 104; Prineas v Forestry Commission of New South Wales and Ors (1984) 53 LGRA 160; Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21
DATES OF HEARING:	05/06/00, 06/06/00, 07/06/00, 08/06/00, 09/06/00, 13/06/00, 14/06/00, 16/06/00, 19/06/00, 20/06/00, 21/06/00, 22/06/00, 05/07/00, 07/07/00
DATE OF JUDGMENT:	08/15/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr T F Robertson (Barrister) SOLICITORS Blake Dawson Waldron RESPONDENT Mr J F Kildea (Barrister) SOLICITORS Trevor Dunn