Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited - [2010] NSWLEC 48

Land and Environment Court

of New South Wales

CITATION: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48

PARTIES:
APPLICANT
Newcastle & Hunter Valley Speleological Society Inc
FIRST RESPONDENT
Upper Hunter Shire Council
SECOND RESPONDENT
Stoneco Pty Limited

FILE NUMBER(S): 10497 of 2009

CORAM: Preston CJ

KEY ISSUES:
APPEAL :- objector appeal against Council’s decision to grant consent to limestone quarry – whether species impact statement (‘SIS’) required - whether endangered ecological community (‘EEC’) present on project site - whether vulnerable species listed under Threatened Species Conservation Act 1995 present on project site – whether likely significant impact on EEC or listed vulnerable species - no likely significant impact on EEC or vulnerable species – no SIS required - uncertainty as to presence of caves and cave-dwelling fauna on project site - whether quarry likely to cause serious or irreversible environmental damage – threat of environmental damage scientifically likely – precautionary principle applied – precautionary measures – monitoring and adaptive management - included in conditions of consent to prevent environmental damage – whether proposal is consistent with zone objectives - whether proposal is compatible with other land uses - whether improvements to road infrastructure adequately provided for in conditions of consent.
PRECAUTIONARY PRINCIPLE: uncertainty as to presence of caves and cave-dwelling fauna on project site - whether quarry likely to cause serious or irreversible environmental damage – threat of environmental damage scientifically likely – precautionary principle applied – precautionary measures – monitoring and adaptive management - included in conditions of consent to prevent environmental damage.
THREATENED SPECIES: whether species impact statement (‘SIS’) required - whether endangered ecological community (‘EEC’) present on project site - whether vulnerable species listed under Threatened Species Conservation Act 1995 present on project site – whether likely significant impact on EEC or listed vulnerable species - no likely significant impact on EEC or vulnerable species – no SIS required.

LEGISLATION CITED: Environment Protection and Biodiversity Conservation Act (Cth) 1999
Environmental Planning and Assessment Act 1979
Fisheries Management Act 1994
Land and Environment Court Act 1979
Mining Act 1992
National Parks and Wildlife Act 1974
Native Vegetation Act 2003
Protection of the Environment Administration Act 1991
Threatened Species Conservation Act 1995

CASES CITED: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237
BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210
Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1
Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79
Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117
Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186
Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633
Hoffman Homes v Administrator, 961 F2d 1310 (7th Circuit 1992)
Hoffman Homes v Administrator, 999 F2d 256 (7th Circuit 1993)
Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116; (2008) 161 LGERA 136
Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170
McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158
Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31
Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74
Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38
Oshlack v Richmond River Shire Council (1993) 82 LGERA 222
Plumb v Penrith City Council [2002] NSWLEC 223
Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426
Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55
Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1
Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1
Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65
Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55
Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1
VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297; (2003) 58 NSWLR 631, 128 LGERA 419
Zia v WAPDA PLD 1994 SC 693

DATES OF HEARING: 30 November 2009, 1 December 2009, 2 December 2009, 4 December 2009

DATE OF JUDGMENT:
31 March 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr P Larkin with him Mr C Norton (barristers)
SOLICITORS
Environmental Defender's Office
FIRST RESPONDENT
Mr P Jayne (solicitor)
SOLICITORS
Sparke Helmore
SECOND RESPONDENT
Mr J Robson SC
SOLICITORS
McPhee Kelshaw

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

31 MARCH 2010

10497 OF 2009

NEWCASTLE & HUNTER VALLEY SPELEOLOGICAL SOCIETY INC V UPPER HUNTER SHIRE COUNCIL AND STONECO PTY LIMITED
JUDGMENT

1 HIS HONOUR: The Isis River valley is a rural landscape, with a number of agricultural properties. The river flats in the valley bottom give way to hills supporting woodland. A striking feature of the vegetation are dense stands of tall grass trees (Xanthorrhoea glauca). Underlying the hills are limestone deposits.

Consent is granted to a limestone quarry

2 On 29 June 2009, the first respondent in these proceedings, the Upper Hunter Shire Council (“the Council”), granted development consent to the second respondent, Stoneco Pty Ltd (“Stoneco”), to establish a limestone quarry on Lot 31, DP 748776, Timor Crawney Road, Timor Creek. This property is located on the western side of the valley. Timor Crawney Road is also referred to as Waverley Road.

3 The proposed development does not occupy the whole of Lot 31, but is within an area of about 60ha referred to as the Project Site (EIS, Ex P1). It is proposed to remove 2.4 million tonnes of limestone from the Project Site over a period of 30 years.

An objector appeals to the Court

4 The proposal is designated development under the Environmental Planning and Assessment Act 1979 (“EPA Act”) and has been subject to an environmental impact statement (“EIS”) (Ex P1). The applicant in these proceedings, Newcastle and Hunter Valley Speleological Society Inc (NHVSS), lodged an objection to the grant of consent during the exhibition period. Following the grant of consent, NHVSS appealed under s 98(1) of the EPA Act. The appeal is in Class 1 of the Court’s jurisdiction.

5 In these Class 1 proceedings the Court is considering the matter de novo: s 39(3) of the Land and Environment Court Act 1979 (“the Court Act”). As NHVSS has raised new issues and placed different emphasis on others, the case differed from that which was considered by the Council when it made its original decision.

6 In hearing the proceedings, I have been assisted by Acting Commissioner Adam under s 37(1) of the Court Act.

7 The Court has had the advantage of a view of the site, during which it was assisted by the parties’ experts. As well as the Project Site, the Court visited a number of localities further north and the Timor Caves Reserve to the south east. The Court travelled between the New England Highway and the Project Site along the roads which would be used for the transport of the product from the site. Resident objectors had raised a number of concerns about the sustainability of the roads as the haulage route.

8 The Court heard evidence from an objector, Mr McIntyre, the closest neighbour to the east of the Project Site, during the view, and from other local residents, Mr Ian Vaughan, Mr John Hill, Ms Catherine Watt and Mrs Elizabeth Wills at the Scone Court House on the following day. The Court continued to hear evidence on subsequent days in Sydney from the parties’ experts.

Other approvals may be required

9 Granting of development consent under the EPA Act for the application to develop the quarry does not exhaust the approvals process necessary for the commencement of a quarrying operation. A grant of a mining lease under the Mining Act 1992 (“the Mining Act”) will be required, and other approvals or licences may be, or become, needed.

10 Exploration Licence No.5635 has been granted over the site by the NSW Department of Industry and Investment to Snowmist Pty Ltd (Snowmist) and Alamo Limestone Industries Pty Ltd (Alamo). This licence has recently been renewed.

11 The Court was advised that contractual arrangements have been concluded between Snowmist and Alamo and Stoneco giving Stoneco the right to exploit the limestone resource in Lot 31. Stoneco has lodged a Mining Lease Application (MLA315) over the area of 60 hectares within Lot 315 described as the Project Site.

12 Under s 63 of the Mining Act, the Minister may grant a mining lease. However, if development consent is required, as it is in this instance, s 65(2) limits the power of the Minister to grant a mining lease until development consent has been granted.

13 Stoneco proposes to apply to the Upper Hunter Shire Council to subdivide Lot 31, so that the Project Site becomes a separate lot. Clause 11(1) of the Murrurundi Local Environmental Plan 1993 (“the LEP”) requires development consent for subdivision. Lot 31 is within Zone no 1(a) - Rural “A” zone, subdivision of which is regulated by cl 12 of the LEP.

14 A mining lease cannot be granted within 200m of a residence: s 62 of the Mining Act. When Mr McIntyre gave evidence he suggested that this was the position in relation to his property. If Mr McIntyre is correct as to the distance between his residence and the boundary of the Project Site, it may not be possible for the Minister to grant a Mining Lease with boundaries contiguous with the Project Site.

The relevant planning controls

15 The Upper Hunter Shire was formed in 2004 though amalgamation of the Merriwa, Murrurundi and Scone Shires. Lot 31 is within what was previously the Murrurundi Shire. The LEP is the applicable local environmental plan for the proposal.

16 The general aims of the LEP in cl 2(1) are:

“(a) to encourage the proper management, development and conservation of natural and man-made resources within the Shire of Murrurundi by protecting, enhancing or conserving:

(i) prime crop and pasture land,

(ii) timber, minerals, soil, water and other natural resources, and

17 The particular objectives for land within a zone are set out in the Table to cl 9 of the LEP.

18 The site is within Zone No 1(a) – Rural “A” zone in the Table in cl 9 of the LEP. The objectives of this zone stated in item 1 are:

“(a) to encourage the productive and efficient use of land for agricultural purposes,

(b) to control subdivision of land having regard to the efficient use of land for the purposes of agriculture,

(c) to ensure that the type and intensity of development is appropriate, having regard to the characteristics of the land, the rural environment and the cost of providing services and amenities, and

19 Clause 9(3) of the LEP provides that “the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of development is consistent with the objectives of the zone within which the development is proposed to be carried out.” As the Court on appeal exercises the functions of the Council, the Court also must be of such an opinion. Formation of the opinion of consistency is a pre-condition to weighing the merit considerations under s 79C of the EPA Act and the grant of consent to the carrying out of the development under s 80 of the EPA Act: Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116; (2008) 161 LGERA 136 at [38] and cases therein cited.

20 Clause 10 of the LEP sets out general principles applying to determination of applications for development consent in rural zones:

“(1) In addition to the matters specified in section 90 (1) of the Act, the Council, in determining any application for consent to carry out development on land within Zone No 1 (a) or 1 (c), shall have regard to the following:

(a) the suitability and capability of the land on which the development is to be carried out, as indicated on maps prepared by the Director-General of the Department of Agriculture and the Director-General of the Department of Conservation and Land Management and copies of which are deposited in an office of the Council,

(b) the present and potential use of the land for the purposes of agriculture,

(d) whether the development will unreasonably prejudice the future recovery of known or prospective areas of valuable deposits of mineral, coal, petroleum, sand, gravel or other extractive materials,

(e) whether the development will create significant additional traffic or a condition of ribbon development on any road, having regard to the capacity, standard and safety of the road,

(f) the cost of providing, extending and maintaining public amenities and services by the Council or a public authority.

(2) Subclause (1) does not apply to development being:

(a) minor addition to a building or work,

(b) development ancillary to a purpose which may be carried out with the consent of the Council under this plan, or

21 Clause 10(1)(e) and (f) relate to matters of concern raised by the resident objectors. The Court was advised by the Council that the road improvements that would be required if the consent were to be granted have been provided for in the Council’s budget.

22 As the proposal is for a quarry it falls within the scope of State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (“the Mining SEPP”). Clauses 12 and 14 of the Mining SEPP prescribe relevant matters for consideration by a consent authority in determining an application for consent for development for the purposes of mining, petroleum production or extractive industry. The current proposal is for the purpose of extractive industry. Clause 12 requires consideration of the compatibility of the proposed development with other land uses in the vicinity. Clause 14 requires consideration of whether any consent for the development:

“should be issued subject to conditions aimed at ensuring that the development is undertaken in an environmentally responsible manner, including conditions to ensure the following:

(a) that impacts on significant water resources, including surface and groundwater resources, are avoided, or are minimised to the greatest extent practicable,

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

23 Clause 8 of the Mining SEPP deals with the permissibility of development for the purposes of mining, petroleum production or extractive industry under local environmental plans. Its effect is to make permissible such development notwithstanding provisions of a local environment plan which make the permissibility of such development contingent upon certain provisions of the plan being satisfied (cl 8(1)) or the consent authority being satisfied as to certain matters (cl 8(2)). Clause 8 continues the effect, in relation to mining, of the former State Environmental Planning Policy No 45 – Permissibility of Mining which was introduced in response to the successful judicial review challenge concerning the permissibility of the Bengalla open cut coal mine in Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1. The subsequent judicial review challenge to the former SEPP45 was ultimately unsuccessful: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 reversing Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1.

24 NHVSS argued that cl 8 of the Mining SEPPP was not applicable in this case as cl 9(3) of the LEP is not a provision of the kind referred to in cl 8(1) or (2) of the Mining SEPP. Clause 9(3) does not go to the permissibility of development on the site. Within the Rural “A” zone, development for the purposes of extractive industry is permissible with consent. There is no provision requiring provisions of the LEP to be satisfied, or the consent authority to be satisfied of matters, prior to such development being permissible. Rather, cl 9(3) establishes a condition precedent that must be satisfied by the Council prior to the exercise of the discretionary power to grant consent to the permissible development.

25 It is unnecessary to determine this question in this case as, for reasons I will give later, I am satisfied that cl 9(3) of the LEP is met in the circumstances of this case. Hence, any potential conflict between cl 9(3) of the LEP and cl 8 of the Mining SEPP does not arise in the circumstances of this case.

The proposal in brief

26 The proposed quarry operation will, over the life of the project, involve:

(a) the clearing of vegetation over the extraction area;

(b) removal of soil;

(c) fragmentation of limestone by drilling and blasting methods;

(d) crushing and screening of limestone;

(e) transportation of products off the site;

(f) rehabilitation of the extraction area; and

27 Rehabilitation and management may extend beyond the 30 year period for which extraction is proposed. The proposal is that described in the EIS, with reduction in the size of the stockpiling and handing area as proposed during these proceedings and illustrated in Ex P10, and as modified by conditions. The proposal was also modified by numerous conditions proposed by Stoneco and the Council.

The issues on appeal

28 The issues which were raised can, for convenience, be considered under three headings: impacts on surface ecology; impacts on caves and other karst features and cave dwelling fauna; and other issues and concerns of the resident objectors.

29 In relation to the surface ecology issues, NHVSS contended that the vegetation over the whole of the Project Site comprised the endangered ecological community of White Box Yellow Box Blakely’s Red Gum Woodland (“the White Box EEC”) and habitat of the threatened species Petaurus norfolcensis (“Squirrel Glider”). NHVSS contended that the proposal was likely to significantly affect the White Box EEC and the Squirrel Glider so as to require a species impact statement (“SIS”) to accompany the development application by reason of s 78A(8)(b) of the EPA Act. No SIS had been prepared. If an SIS was required, neither the Council in the first instance nor the Court on appeal would have the power to grant development consent to the proposal.

30 In relation to the karst issues, NHVSS contended that the limestone on the Project Site is likely to contain caves and other karst features and cave-dwelling fauna. NHVSS contends that the proposal is likely to cause serious or irreversible damage to these karst features and fauna.

31 The third group of issues concerned those raised by cll 9 and 10 of the LEP and cll 12 and 14 of the Mining SEPP and the concerns by the resident objectors. Road safety and the need for upgrading of the road through the provision of new creek crossings and passing bays were common concerns, and the question of whether the financial contributions to be made over the life of the mine would meet the cost of the upgrading and maintenance were raised. The socio-economic justification of the proposal was questioned, and the impact of increased heavy traffic use of the road on the adjacent property values was raised. The possibility of effects on water supplies was a concern and the possible effects of dust, particularly on lucerne, was an issue. Concerns were also expressed about blasting and the danger of silica in fine dust. Restoration/rehabilitation at the end of the mine life was also raised.

The White Box EEC description

32 In 2002, the Scientific Committee, established by the Threatened Species Conservation Act 1995 (“TSC Act”), made a Final Determination to list the White Box Yellow Box Blakely’s Red Gum Woodland as an endangered ecological community (“EEC”) on Part 3 of Schedule 1 of the Act. The listing of EECs is provided for by Part 2 of the TSC Act. The Final Determination was made following the making and advertising of a Preliminary Determination to support a proposal to list the Community (under the name White Box-Yellow Box Woodland) and consideration by the Scientific Committee, as required by the Act, of submissions received in response to the notification.

33 Paragraphs 1 and 2 of the Final Determination provide a general overview of the distribution and nature of the community as follows:

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

34 The distribution of the community extends beyond New South Wales into both Victoria and Southern Queensland.

35 Despite the very large area occupied by the community at the time of European settlement, the Scientific Committee found that the criteria for listing as an EEC were satisfied and in para 8 of the Final Determination stated that:

“White Box Yellow Box Blakely's Red Gum Woodland has been drastically reduced in area and highly fragmented because of clearance for cropping and pasture improvement. Austin et al. (2000) found the community had been reduced to less than 1% of its pre-European extent in the Central Lachlan region. Comparable degrees of reduction have been documented for NSW south western slopes and southern Tablelands (estimated <4% remaining, Thomas et. al. 2000), and for the Holbrook area (estimated <7% remaining, Gibbons and Boak (2000). Gibbons and Boak (2000) found remnants of woodlands dominated by Eucalyptus albens, E. melliodora and E. blakelyi were severely fragmented. Further remnants of the community are degraded as a consequence of their disturbance history. Some remnants of these communities survive with the trees partly of wholly removed by post European activities, and conversely, often remnants of these communities survive with these tree species largely intact but with the shrub or ground layers degraded to varying degrees through grazing or pasture modification. Remnants are subject to varying degrees of threat that jeopardise their viability. These threats include: further clearing (for cropping, pasture improvement or other development); deterioration of remnant condition (caused by firewood cutting, increased livestock grazing, weed invasion, inappropriate fire regimes, soil disturbance and increased nutrient loads); degradation of the landscape in which remnants occur (including soil acidification, salinity, and loss of connectivity between remnants).”

36 An extensive list of species which characterized the EEC is provided in para 3 of the Final Determination. Within the broad distribution of the community the Final Determination indicates that there is (and would have been prior to European settlement) local and regional variation in species composition related to latitudinal and climatic gradients (para 5) and to topography, drainage and landscape position (paras 3 and 4). The present structure and composition of stands of the EEC will have been influenced by clearing, thinning, grazing and other disturbances (paras 2, 3, 8, 9).

Whether the vegetation on the project site is White Box EEC

The issues of expert disagreement

37 The Court heard expert evidence on the vegetation of the Project Site from Mr Elks for Stoneco and from Dr Clements and Dr Smith for NHVSS. Evidence on soils was provided by Mr Cummings for Stoneco and Dr Hazelton for NHVSS.

38 Mr Elks, in the EIS and subsequently, recognized three communities on the Project Site, which he termed Community 1: Yellow Box – Blakely’s Red Gum, Community 2: Large-flowered Bundy – Kurrajong, and Community 3: Slender Rats-Tail Grass.

39 Mr Elks was of the opinion that Community 1, found towards the western side of the Project Site, over the mudstones of the Busches formation, satisfied the description of the White Box EEC in the Final Determination. Community 3, found close to Timor Crawney Road and adjacent to the clean water dam is highly modified, but in accordance with para 11 of the Final Determination was accepted by Mr Elks as part of the White Box EEC.

40 Community 2, which occupies most of the Project Site and in which the extraction area would be situated, was not regarded by Mr Elks as being part of the White Box EEC but as a distinctly different community which is not included as an EEC on Part 3 of Schedule 1 of the TSC Act.

41 Dr Clements and Dr Smith were in agreement in recognising three vegetation noda on the Project Site, with boundaries between them identical, or close to, those recognized by Mr Elks (and depicted in Ex P10). They were also in agreement that Communities 1 and 3 were components of the White Box EEC. The point of difference was over the nature of Community 2, which they contended was also part of the White Box EEC.

42 Resolution of these competing positions requires interpretation of the Final Determination and the application of this interpretation to the Project Site. This flows from the definition of “endangered ecological community”. An “endangered ecological community” is defined in s 4 of the TSC Act as meaning an ecological community specified in Part 3 of Schedule 1 of the TSC Act. Part 3 of Schedule 1 specifies the listed endangered ecological communities to date, including the White Box EEC, adding after each of the words “(as described in the Final Determination of the Scientific Committee to list the ecological community)”. Hence, the inquiry as to whether the vegetation on the Project Site comprises the White Box EEC must be directed to the description in the Final Determination of the Scientific Committee to list the White Box EEC as an EEC.

43 Documents not referred to in the Final Determination of the Scientific Committee to list White Box EEC, such as the White Box Yellow Box Blakely’s Red Gum Woodland (Box-Gum Woodland) Identification Guidelines or the White Box – Yellow Box – Blakely’s Red Gum (Box-Gum) Woodland fact-sheet, both produced by the NSW National Parks and Wildlife Service, are useful sources of information. However, where the documents describe the White Box EEC in different terms to the description in the Final Determination, or use of the documents results in different outcomes than the outcome that would arise from application of the description in the Final Determination, the description in the Final Determination must prevail.

44 There was agreement that the Project Site fell within the distribution area of the White Box EEC defined in para 1 of the Final Determination, although there was disagreement between Mr Cummings and Dr Hazelton over interpretation of the phrase ‘relatively fertile soils’; this will be discussed later.

45 The differences between the vegetation experts were focused on interpretation of para 2 of the Final Determination.

46 EECs currently listed under the TSC Act vary from ones such as the White Box EEC which have wide geographical distribution and occur across a range of environmental gradients (climate, topography etc) and others which have very limited spatial extent and very narrow environmental requirements. The latter can be described in Final Determinations with much greater specificity (for example, Ben Halls Gap National Park sphagnum moss cool temperate rainforest or the Byron Bay dwarf graminoid clay heath community).

47 Final determinations for many EECs have been worded with some generality. The Court of Appeal in VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297; (2003) 58 NSWLR 631, 128 LGERA 419, indicated that Final Determinations must be sufficiently certain to enable a citizen to decide whether a specific location supports an EEC, but the inherent spatial and temporal variation in natural communities precluded absolute definitional specificity (VAW(Kurri Kurri) at [231]-[233] per Hodgson JA).

48 The White Box EEC is a “high level” unit in the vegetation classification hierarchy, and includes vegetation described in two alliances, the Eucalyptus albens alliance and the E. melliodora/E. blakelyi alliance described by Beadle (1981) (Final Determination, paragraph 6, Beadle, NCW, The vegetation of Australia, 1981). Inherent, therefore, in the Final Determination is a recognition that although all stands attributed to the White Box EEC must conform to the terms of the Final Determination, within the vegetation captured by the Final Determination individual stands could be classified into a series of communities (para 4 of the Final Determination). Thus there is nothing in the Final Determination to rule out a priori Communities 1 and 2 being part of the same EEC, provided that the terms of the Final Determination encompass both communities, notwithstanding that at some level of analysis Communities 1 and 2 can be distinguished. This is an illustration of what has been referred to as the Russian Doll nature of ecological communities (BJ Preston and P Adam, “Describing and listing threatened ecological communities under the Threatened Species Conservation Act 1995 (NSW): Part 1 – the assemblage of species in a particular area” (2004) 21 Environmental and Planning Law Journal 250 at 252-254; P Adam, “Ecological communities: the context for biodiversity conservation or a source of confusion?” (2009) 13 Australasian Journal of Natural Resources Law and Policy 7 at 33-34 and Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 at [106]).

49 Following joint expert conferencing the issues of disagreement were:

(a) the relevance of the composition of the tree flora in Community 2;

(b) the relevance of patches of shrubs within Community 2;

(c) the relevance of the extent of Lomandra longifolia in Community 2;

(d) whether Community 2 is best classified as a Roughbarked Apple-Silvertop Stringybark – Grassy Open Forest; and

(e) whether the edaphic criterion in para 1 of the Final Determination is met.

The tree flora issue

50 Paragraph 3 of the Final Determination lists a number of species characteristic of the White Box EEC, but it is also noted that the total list of species occurring in the White Box EEC (although not all at the same site) will be much larger than those specifically mentioned. It was agreed between the experts that both Communities 1 and 2 contained a similar number of species from the list in para 3. The fact that there were species in the list which had not been recorded in either community was not raised as an issue. It is established that presence of a defined proportion of the species listed in Final Determinations is not required for recognition of EECs: Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 per Talbot J at [103-104] and VAW (Kurri Kurri) per Spigelman CJ at [7].

51 Paragraph 2 of the Final Determination states that the White Box EEC “includes those woodlands where the characteristic tree species include one or more of the following species in varying proportions and combinations – Eucalyptus albens (White Box), Eucalyptus melliodora (Yellow Box) or Eucalyptus blakelyi (Blakely’s Red Gum)”. Thus not all these three species need be present to qualify an area as part of the EEC, and it is not required that any of the species to be dominant. It was agreed by the experts, and was observed by the Court on the view, that Eucalyptus albens occurred within the area mapped by Mr Elks as Community 2 and that the occurrences included both mature trees and regenerating juveniles. E. albens was not the most abundant eucalypt in Community 2, that position being taken by E. nortonii, but it was present.

52 Both E. nortonii and Brachychiton populneus (Kurrajong), which together were the most common trees in Community 2, are included in the list of characteristic species in the Final Determination for the White Box EEC.

53 The nature of the tree cover of Community 2 is thus compatible with the Community being part of the White Box EEC.

The shrub issue

54 Paragraph 2 of the Final Determination states “shrubs are generally sparse or absent, though they may be locally common”.

55 Mr Elks drew attention to the presence of the number of shrubs recorded from Community 2, and in particular to the presence of a dense patch of the shrub Santalum lanceolatum (Sandalwood) in the southeast of the proposed extraction zone. He argues that, in consequence, Community 2 did not satisfy para 2 of the Final Determination.

56 Twenty seven of the ninety five species listed in para 3 of the Final Determination are shrubs, so that the mere presence of a number of species of shrubs in Community 2 does not disqualify the community from being part of the White Box EEC. What then is the intent of the qualifier “locally common”? The various references in the Final Determination to spatial variation within the White Box EEC, permit the occurrence of patches of shrubs within the community while conforming with the description.

57 If floristic composition was being assessed by use of quadrats then, depending on the size of the quadrat, the location of the quadrats and the size of the patch of shrubs, at the individual quadrat level, the data could suggest shrub dominance. However, the single quadrat would be unrepresentative of the vegetation of the stand, although illustrative of part of the range of variation in structure and composition of the stand.

58 As is indicated in the Final Determination, in some parts of the total range of the White Box EEC there has been extensive clearing such that only small, isolated stands remain. In that circumstance an individual stand may be so small, and be essentially homogeneous, so that determining whether its structure and composition was originally part of the wider variation in a larger stand of the White Box EEC could be difficult and there could be unresolvable uncertainty about assignation to the White Box EEC; but this is not the situation in this instance.

59 The Project Site is set within the much larger Lot 31, and that in turn is set within a larger vegetated area, so that “locally” can be assessed within the landscape context.

60 Even within the context of the proposed extraction area, the patches dominated by shrubs occupy a limited extent, and this is still the case if the whole area mapped as Community 2 is considered. At the wider scale of the Project Site, the patches of shrub dominance fall within a description of being “locally common”.

61 The occurrence, distribution and abundance of shrubs within the area mapped as Community 2 is compatible with Community 2 being part of the White Box EEC.

The Lomandra issue

62 The ground layer of the White Box EEC is generally characterised by grass and herbaceous species (Final Determination, para 2). Lomandra longifolia is the most abundant species in the ground layer within Community 2, particularly in the lower part of the proposed extraction zone. Mr Elks argument was that the presence, and more particularly, abundance, of L. longifolia in Community 2 precluded Community 2 from inclusion in the White Box EEC.

63 L. longifolia is not included in the list of characteristic species in para 3 of the Final Determination. However, para 3 also indicates that the list is not comprehensive so that the absence is not, of itself, determinative.

64 L. longifolia is a herb, and so would be included within the phrase ‘Grass and herbaceous species’ in para 3. On the view by the Court, Mr Elks suggested that the White Box EEC generally had a predominance of graminoids in the ground layer. However, this is not specified in the Final Determination. In addition “graminoid” is a broad term which is frequently used in a very general sense. The definition of graminoid in the United States Department of Agriculture growth habits definitions ( is as follows:

Plants Growth Habit Code	Plants Description	Plants Definition	Notes
GR	Graminoid	Grass or grass-like plant, including grasses (Poaceae), sedges (Cyperaceae), rushes (Juncaceae), arrow-grasses (Juncaginaceae), and quillworts (Isoetes)	Applies to vascular plants only. A herb in the FGDC classification.

65 On this definition, graminoid encompasses a much broader group of plants than just strictly grasses. Given the tussocky habit and long linear leaves of L. longifolia, characterisation as a graminoid would be permissible.

66 There was no evidence available to the Court on either the occurrence of L. longifolia outside the Project Site or whether Lomandra dominance is a more general phenomenon over a wider area. In any case, however, presence of dense Lomandra as a herbaceous or graminoid layer is compatible with the description of the White Box EEC in the Final Determination.

The alternative community issue

67 Mr Elks suggested that Community 2 was not part of the EEC but should instead be regarded as falling within the Roughbarked Apple-Silvertop Stringybark-Grassy Open Forest community. This community is included within the BioMetric tool, developed for use in the context of preparation of Property Vegetation Plans under the Native Vegetation Act 2003. The community list recognized in BioMetric is not fully comprehensive, but is a work in progress. Mr Elks has adopted a procrustean approach, forcing Community 2 into the closest entity within BioMetric despite considerable differences in structure and canopy composition. Community 2 is, within the context of the Project Site, a distinctive community, but nevertheless is one which as discussed above, falls within the variation of the White Box EEC.

The soils issue

68 The Final Determination for the White Box EEC indicates in para 2 that the community is found on “relatively fertile soils”. There was dispute between Mr Cummings and Dr Hazelton as to whether or not the soils within the area mapped as Community 2 were “relatively fertile”.

69 The Final Determination does not provide any definition of either “relative” or “fertile”, although the expression “relatively fertile” is widely, but loosely, used in discussion of Australian ecology, in the context that Australia has some of the most infertile soils in the world.

70 The limestone underlying Community 2 is of high purity so that on weathering it provides little material for soil formation. Rather, the major component of the soil is of aeolian (windblown) material, accumulated over long periods and, at least in substantial part, originating from inland Australia, and augmented with organic material derived from biota growing on the site.

71 Part of Mr Cumming’s argument appeared to be that the area mapped as Community 2 as a whole was infertile, because much of it was rock exposures. In addition, the pockets of soil were shallow. While these factors will affect the distribution and nature of vegetation in Community 2, they do not influence the fertility of the soil per se. The experts were in agreement that the chemical analyses of the soil samples from the site could be regarded as indicating that the soil was, even in an agricultural context, fertile.

72 The evidence shows that the soils in Community 2 can be regarded as “relatively fertile”.

Other ecological descriptors

73 The definition of ecological community in s 4 of the TSC Act refers to “an assemblage of species”. It is the species composition of the assemblage which provides the essential key to deciding whether or not area of vegetation are to be recognized as constituting an EEC. Inclusion of details of habitat/environmental features in Final Determinations provide extra assistance in identifying communities in the field, but does not displace the central importance of the presence of the necessary assemblage of species (RoclaPty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 at [80], BJ Preston and P Adam, “Describing and listing threatened ecological communities under the Threatened Species Act 1995 (NSW): Part 2 – the role of the supplementary descriptors” (2004) 21 EPLJ 372 at 380-382, P Adam (2009) 13 AJNRPL 7 at 38-39).

The presence of dry rainforest

74 Included within the mapped Community 2 are a number of small patches dominated by the fig Ficus rubiginosa. Dr Clements contended that these are examples of a dry rainforest community, the presence of which may possibly indicate the local occurrence of deeper soils, although this has not been investigated. Without further investigation at the site and in the broader region it is not possible to decide whether or not these patches occupy a distinct habitat, so deserving recognition as a separate community or whether scattered small groves of figs are a regional feature of the White Box EEC. Nevertheless, the figs were a feature of the site recognized as of significance by the experts in concurrent evidence. Recognizing the patches of fig as a separate community would in the present circumstances be of little practical consequence as the patches are so small and completely embedded within what the Court has decided is an EEC.

Conclusions regarding the White Box EEC

75 As discussed above, the various matters raised against the inclusion of Community 2 within the White Box EEC are, on analysis, compatible with categorization as part of the White Box EEC. The occurrence, albeit in small quantity of Eucalyptus albens, and the presence of E. nortonii and Brachychiton populneus and a large number of other species in the list of characteristic species in para 3 of the Final Determination speaks positively in favour of Community 2 being a component of the White Box EEC.

76 Community 2 is a component of the White Box EEC, albeit a local variant with abundant E. nortonii. While ecological communities are not to be regarded as ‘super organisms’ (P Adam (2009) 13 Australasian Journal of Natural Resource Law and Policy 7 at 19-21), so that variants of ecological communities are not analogous with genotypes of species, conservation of biodiversity encompasses the conservation of the diversity of life at all levels of organisation, which includes variation within ecological communities.

77 The White Box Yellow Box Blakely’s Red Gum Grassy Woodland and Derived Native Grassland is included on the Schedules of the Environment Protection and Biodiversity Conservation Act (Cth) 1999 as a Critically Endangered Ecological Community. The description of this Community is largely consistent with that of the White Box EEC as listed under the TSC Act. The consequences of any Commonwealth listing for the proposal are not matters for determination by this Court.

78 By reason of the conclusion that Community 2 is part of the White Box EEC, and the parties’ agreement that Communities 1 and 3 are part of the White Box EEC, all of the vegetation on the Project Site comprises the White Box EEC.

Whether likely significant effect on White Box EEC

79 When the proposal was first before Council it was assessed on the basis that Community 2 was not part of the White Box EEC, and that only 0.2 ha of Community 1 which was acknowledged as White Box EEC, would be disturbed. This was considered not to be a significant impact on the White Box EEC, so that a SIS was not required.

80 With Community 2 now recognized as part of the White Box EEC, the area which would have been disturbed under the original proposal increased to 7.5 ha. With the redesign of the stockpile and handling area (Ex P10), the area of disturbance drops to 5.864 ha (Ex P20), but with some uncertainty regarding final siting of some components the disturbed area can be rounded up to 6 ha for purposes of assessment.

The test for assessing likely significant effect

81 The area proposed to be disturbed is now considerably larger than 0.2 ha, so that the impact needs to be reassessed to determine whether or not a SIS is required. The requirement for a SIS flows from s 78A(8)(b) of the EPA Act which requires that a development application must be accompanied by a SIS if the application is in respect of development on land that “is likely to significantly affect threatened species, populations or ecological communities, or their habitats”. The requirement is a jurisdictional fact; satisfaction of the requirement is an essential pre-requisite to granting consent to an application. If a SIS is required, but it has not been prepared, then consent cannot be granted: Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 at [94], [108] (Spigelman CJ); Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 at [35], [51]; Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 at [78].

82 A number of points may be made about this requirement. First, s 78A(8)(b) focuses on the development proposed in the development application; the inquiry is whether the “development” in respect of which application is made is likely to significantly affect threatened species, populations or ecological communities or their habitats. An application can, of course, be amended after it is initially lodged. The development proposed, therefore, may be amended. The relevant time for the inquiry is immediately prior to the determination of the application; it is the development as it then stands that is to be evaluated for its likely impact on threatened species, populations or ecological communities or their habitats: Corowa v Geographe Point Pty Ltd at [50], [51]. In this case, therefore, the inquiry must focus on the development as it finally stood at the conclusion of the hearing of the appeal.

83 Secondly, the description of the development the subject of the development application is not restricted to the nature, extent and other features of the development but can also include ameliorative measures to prevent, mitigate, remedy or offset impacts of the development. However, in order to be able to be considered in answering the inquiry of likely impact, the ameliorative measures must be proposed as part of the development application. Ameliorative measures not proposed as part of the development application, but which are imposed afterwards, as conditions of consent or restrictions in construction certificates, are not able to be considered in answering the inquiry as to likely impact. This is because the inquiry required by s 78A(8)(b) focuses on the development and its likely impact before the determination of the application and not afterwards: see Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 at 192; Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 at [11]-[13]; Corowa v Geographe Point Pty Ltd at [57].

84 Thirdly, the word “likely” means “a real chance or possibility” and “significantly” means “important”, “notable”, “weighty” or “more than ordinary”: Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 at 233 and cases therein cited; Plumb v Penrith City Council [2002] NSWLEC 223 at [22(1)]; Corowa v Geographe Point Pty Ltd at [52]; Nambucca Valley Conservation Association v Nambucca Shire Council at [82].

85 Fourthly, in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the consent authority and the Court on appeal must take the factors in s 5A of the EPA Act into account and in particular the factors in the now seven part test in s 5A(2). However, the consent authority is not limited to consideration of these factors; there may be facts and circumstances relevant to the inquiry which are not specifically contained in any of the factors in the seven part test: Plumb v Penrith City Council at [37]; BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 at [12]; and Corowa v Geographe Point Pty Ltd at [52].

86 Fifthly, a positive answer to any one or more of the seven factors does not mandate an affirmative answer to the question of whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats but equally does not preclude a negative answer to the question: Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [61]; Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 at [11]; Plumb v Penrith City Council at [36]; Nambucca Valley Conservation Association v Nambucca Shire Council at [83].

87 Of the factors in s 5A(2), four ((a), (b), (e) and (f)) are not applicable to an EEC but the remaining three ((c), (d) and (g)) are applicable and need to be considered.

Likely risk of extinction of local occurrence of EEC

88 Section 5A(2)(c) states:

“(c) in the case of an endangered ecological community or critically endangered ecological community , whether the action proposed:

(i) is likely to have an adverse effect on the extent of the ecological community such that its local occurrence is likely to be placed at risk of extinction, or

(ii) is likely to substantially and adversely modify the composition of the ecological community such that its local occurrence is likely to be placed at risk of extinction,”.

89 In order for there to be an affirmative answer to this factor the action proposed must, by one or other of the two routes specified in subparas (i) or (ii) result in the specified outcome of the local occurrence of the relevant ecological community likely being placed at risk of extinction. The two routes by which this outcome might occur are, first, an adverse effect on the extent of the ecological community and, second, substantial and adverse modification of the composition of the ecological community.

90 In these respects, the current formulation of this factor in s 5A(2)(c) differs materially from the previous formulation: see, for example, consideration in Plumb v Penrith City Council at [41]-[50]; Corowa v Geographe Point Pty Ltd at [72] – [73] and Nambucca Valley Conservation Association v Nambucca Shire Council at [115] –[116].

91 In this case, as far as s 5A(c)(i) is concerned, the proposal will involve the direct disturbance (clearing) of some 6 ha of the White Box EEC, with the possibility of indirect effects over a larger area. The experts did not agree as to the extent of any indirect effects. As far as s 5A(c)(ii) is concerned, outside the area to be disturbed by construction and excavation, the proposal does not include adverse modification of the White Box EEC elsewhere on the Project Site. One possible form of modification would be through the promotion of weeds. However, as part of the conditions proposed by Stoneco and the Council, there is to be active weed management so the condition of the White Box EEC within the Project Site should not decline but rather improve.

92 The 6 ha that will be adversely affected are situated with the larger 60 ha of the Project Site and the Project Site is part of the much larger Lot 31. During the view the Court requested that the experts carry out a joint inspection to determine the nature of the vegetation extending beyond the boundaries of the Project Site. There was agreement between the experts that Community 1 (being part of the White Box EEC on the Busches formation) occurred to the west of the Project Site, but lack of data precluded agreement as to how far the White Box EEC extended to the west. The extent of Community 2, which the Court has determined is also part of the White Box EEC, beyond the Project Site was not investigated. Nevertheless, at the minimum, I find that the proposal is likely to adversely affect or modify an extent of 6 ha of the White Box EEC.

93 The critical question then becomes: is this likely adverse effect or modification such that the local occurrence of the White Box EEC is likely to be placed at risk of extinction? The answer to this question will depend on what is the “local” occurrence of the White Box EEC?

94 The concept of “local” occurrence is not a defined term; rather it is an ordinary English word that will take its meaning from the circumstances of the EEC concerned and its distribution, extent, fragmentation and other spatial characteristics.

95 An EEC by its nature might only have local occurrences. The particular EEC of the Hygrocybeae Community of the Lane Cove Bushland Park is an assemblage of 20 species of fungi restricted to a core zone along the Gore Creek catchment in the Lane Cove Valley in Sydney. The EEC of the Mount Canobolas Xanthoparmelia Lichen Community is a community of foliose lichens of the genus Xanthoparmelia occurring on Mount Canobolas near Orange. A third example is the Artesian Springs Ecological Community which is naturally restricted to artesian springs in the Great Artesian Basin in north western NSW. The plant assemblages differ between springs. Each spring is a local occurrence of the ecological community. For ecological communities such as these three examples, the local occurrence may be completely within a development site.

96 If the ecological community is a widespread one, as will be the case for higher level communities such as the White Box EEC in this case or the lowland rainforest EECs, the spatial characteristics of the particular occurrence of the ecological community in which the development site is located, will need to be examined. The occurrence of the EEC may have become fragmented by clearing and disturbance, leaving only patches scattered over the former range of the EEC. Is each remaining fragment to be considered a local occurrence of the EEC or is the collection of fragments in the former range to be viewed collectively as the local occurrence? Questions of fact and degree are involved in resolving this problem in any particular case.

97 Evidently, if the area of occurrence of the EEC extends beyond the cadastral boundaries of the development site, the area of local occurrence of the EEC for the purposes of s 5A(2)(c) will also extend beyond the development site.

98 In this case, the local occurrence of the White Box EEC includes the whole of the 60 ha of the Project Site. The extent of further occurrence of the community beyond the Project Site is, however, unclear. On the information available, therefore, the best that can be done is to evaluate whether the clearing of 6 ha in the extraction area of a local occurrence of the White Box EEC of at least 60 ha is likely to place that local occurrence at risk of extinction?

99 Reference to other cases where assessments of significance of loss of EECs have been made is not particularly helpful. Each case must turn on its own facts: Nambucca Valley Conservation Association v Nambucca Shire Council at [117].

100 Furthermore, the statutory evaluative framework has altered. In its current form, s 5A(2)(c) requires evaluation of the likelihood of removal or modification of an area of an EEC placing a “local occurrence” of the EEC at risk of extinction. The former s 5A(c) of the then eight part test required the different evaluation of whether, in the context of the regional distribution of the habitat of the EEC, a significant area of known habitat is to be modified or removed. The yardstick for comparison is quite different.

101 Hence, the evaluative conclusion in cases considering the former s 5A(c) using the regional distribution of the habitat of an EEC may not assist in making the evaluative judgment required under the current s 5A(2)(c) which uses the yardstick of local occurrence of the EEC. This is particularly true for EECs with extensive regional distribution of habitat: the denominator is so large that the area removed or modified by the action proposed (which is the numerator) will inevitably be smaller in comparison, with the result that the fraction or percentage removed or modified will be insignificant. This was the evaluative conclusion in Plumb v Penrith City Council at [44] (7 ha of Cumberland Plain Woodland (CPW) EEC of a regional distribution of 26,724 ha or 0.026%) but not in BT Goldsmith Planning Services Pty Ltd v Blacktown City Council at [80], [82], [87]; Corowa v Geographe Point Pty Ltd at [58], [73] (9000 m² of Swamp Oak Floodplain Forest EEC of an unspecified extent of a regional distribution throughout the North Coast region); and Nambucca Valley Conservation Association v Nambucca Shire Council at [109], [118], [125] (400 m² lost and 2 ha impacted of River Flat Eucalypt Forest on Coastal Floodplain and Subtropical Coastal Floodplain in Forest EECs of a regional distribution of 800 – 1400 km²).

102 Such a comparison with the regional distribution of an EEC is no longer appropriate for the purposes of s 5A(2)(c). The comparison would need to be with the local occurrence of the EEC, which will be significantly smaller in extent. In Plumb v Penrith City Council, for example, the 7 ha of CPW to be modified or removed was part of a remnant of 629 ha. If this remnant could be considered a local occurrence of CPW, then the quantitative comparison for the current s 5A(2)(c) would be between 7 ha and 629 ha, which is significantly different from the comparison undertaken by the Court under the former s 5A(c) of between 7 ha and 26,724 ha, being the extent of regional distribution of CPW.

103 Where the relevant remnant is smaller in size, if it can be considered to be a local occurrence of the EEC concerned, the quantitative effect of removal or modification will be even more significant. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council at [81], Pain J noted that a high proportion of the remaining CPW is in fragmented patches of varying degrees of quality and that well over half of the patches are likely to be 7 ha or less. If each of these patches could be considered a local occurrence of CPW, a development such as the one in that case which modified or removed 3.86 ha, or the one in Plumb v Penrith City Council which modified or removed 7 ha, could well lead to the conclusion that the local occurrence of CPW would likely be placed at risk of extinction.

104 A mere quantitative comparison of the area of the EEC to be removed or modified with the area of the local occurrence of the EEC, however, may not be sufficient by itself to evaluate the likelihood of removal or modification of the area of the EEC placing the local occurrence of the EEC at risk of extinction. Other factors may need to be considered and a qualitative analysis undertaken: BT Goldsmith Planning Services Pty Ltd v Blacktown City Council at [64], [65], [73], [74], [79], [80]-[82], [84], [87]-[88], [90]. Other factors that might be relevant to be considered include:

(a) the abiotic components of the environment of the EEC concerned, being the climatic, physiographic and edaphic components, and the proposal’s adverse effect on or modification of these abiotic components;
(b) the type of ecological community of the EEC concerned;

(c) the ecological integrity and ecological functioning of the local occurrence of the EEC, and the proposal’s likely adverse effect on or modification of the ecological integrity and functioning;

(d) the viability (or conversely the vulnerability) of the local occurrence of the EEC and the proposal’s likely adverse effect on or modification of this viability (or vulnerability), having regard to its location; size; shape, configuration and edge to area ratio; fragmentation; isolation or connectivity; condition; threatening processes; and other factors;

(e) the cumulative effect of the proposal with other existing and likely future actions; and
(f) the existence and likely effectiveness of ameliorative measures proposed including compensatory habitat or offsets of the EEC concerned in or adjoining the area of the local occurrence of the EEC.

105 In this case, I do not find that the adverse effect on or modification of 6 ha of the White Box EEC is such that the local occurrence of the White Box EEC on, at least, the 60 ha of the Project Site is likely to be placed at risk of extinction. In reaching this conclusion, I have considered that:

(a) the quantitative effect would be to remove or modify no more than 10% of the area of the local occurrence of the White Box EEC;

(b) the proposal would, over an area of 6 ha, involve the clearing of vegetation, removal of limestone and re-shaping of the topography in the extraction area and clearing of vegetation and modification of the landform in other parts of the Project Site, but these areas would be rehabilitated including revegetating using indigenous plant species, and otherwise there would be minimal, if any, impacts on the abiotic components of the environment outside the 6 ha;

(c) the type of environmental community concerned is a woodland covering a wider area;

(d) the ecological integrity and functioning of the local occurrence of the White Box EEC is high and it is viable community. The proposal will not result in the local occurrence on the Project Site becoming fragmented or isolated or to lose connectivity with other areas of the White Box EEC habitat. Nevertheless, the proposal will create a “hole” within the Project Site during the period of extraction. No evidence was provided to suggest that the “hole” per se was likely to cause the local occurrence of the White Box EEC on the Project Site to become extinct. The proposal is not likely to lead to adverse modification of the area of the local occurrence outside the 6 ha zone of affectation;

(e) no evidence was provided of any other proposals affecting or about the management of the White Box EEC outside the Project Site (although the extent of the White Box EEC outside the Project Site was not known), so that an assessment of possible cumulative effects could not be made; and

(f) ameliorative measures are proposed to contain the adverse effects within the 6ha zone of affectation and to prevent, mitigate and remediate adverse effects within that zone.
Likely effect on habitat of EEC

106 Section 5A(2)(d) deals with effects on the habitat (i.e. the physical environment) of the EEC:

“(d) in relation to the habitat of a threatened species , population or ecological community :

(i) the extent to which habitat is likely to be removed or modified as a result of the action proposed, and

(ii) whether an area of habitat is likely to become fragmented or isolated from other areas of habitat as a result of the proposed action, and

107 “Habitat” has the same meaning as in the TSC Act, namely “an area or areas occupied, or periodically or occasionally occupied, by a species, population or ecological community and includes any biotic or abiotic component”: s 4(1) of EPA Act adopting the definition in s 4 of the TSC Act.

108 The extent of habitat proposed to be removed over the life of the project is 6 ha.

109 The White Box EEC in the Project Site is contiguous with the same community across the site boundary, although the extent of the White Box EEC in the broader area is not known in detail. No evidence was presented regarding the management of the White Box EEC outside the Project Site. However, at present, the proposed action will not result in the Project Site becoming fragmented or isolated from other areas of White Box EEC habitat. Nevertheless the proposal will create a “hole” within the Project Site during the period of extraction. No evidence was provided to suggest that the “hole” per se was likely to cause isolation.

110 The area to be directly impacted is 6ha within a Project Site of 60ha and within an area of White Box EEC which extends beyond (to a currently unknown extent) the Project Site. Although Community 2 represents, on the available information, a distinct variant of the White Box EEC, the evidence does not suggest that the “local occurrence” of the EEC as a whole, or its more restricted variants, is likely to suffer adverse effects such that the long term survival of the White Box EEC is placed at risk from the reduction in extent or quality.

Likely effect on threatening processes

111 Section 5A(2)(g) addresses threatening processes:

112 Clearing of native vegetation, which is necessarily part of the proposal, is a key threatening process (listed under Schedule 3 of the TSC Act: see s 8), but given the modest scale of the clearing required by the proposal relative to the extent and distribution of the White Box EEC, this in itself would not be a basis for an overall assessment of significant impact such as to require completion of a SIS.

Conclusion on application of seven part test

113 Application of the seven part test has resulted in negative answers to the three applicable factors. However, as noted previously, whilst consideration of the seven part test is required in deciding whether there is likely to be a significant effect on threatened species, populations or ecological communities, or their habitats, the seven part test is not the only input into determining the question. Other relevant factors can be taken into consideration.

114 One factor that might be relevant is whether the local occurrence of the EEC in which the action is proposed has features of interest related to individual species in the assemblage, such as the presence of particular threatened species of flora or fauna or the presence of exceptionally large, mature specimens of tree species. The presence of such features of interest might increase the significance of the adverse impacts on the EEC.

115 Another factor that might be relevant is ameliorative measures which reduce the significance of the adverse impacts on the EEC. In BT Goldsmith Planning Services Pty Ltd v Blacktown City Council proposals for amelioration for the loss of CPW were advanced, but in the circumstances of the case Pain J did not consider that a proposal to reafforest a nearby area was ameliorative: [at 86].

116 The present case differs from BT Goldsmith in a number of respects. First, the extraction area will be rehabilitated so that at the end of the extraction and rehabilitation phases both the habitat and community will be present in some form. Secondly, the conditions proposed by Stoneco and the Council contain provisions for the implementation of management plans designed to ensure the enhancement and maintenance in perpetuity of EEC in the Project Site. These plans allow for ongoing review and adaptive management. These conditions provide sufficient assurance that the adverse impacts of the proposal will be ameliorated such that the overall assessment under s 5A is of no significant impact so that no SIS is required.

117 In contrast to BT Goldsmith, in Nambucca Valley Conservation Association v Nambucca Shire Council, Biscoe J accepted the proposed ameliorative measures would be practical, enforceable and effective, so that the proposed development with the ameliorative measures was not likely to significantly affect the EEC concerned: at [119]-[124].

118 In conclusion, therefore, I find that the proposal is not likely to significantly affect the White Box EEC and a SIS is not required.

The Squirrel Glider issue

119 The Squirrel Glider Petaurus norfolcensis is a vulnerable species listed on Schedule 2 of the TSC Act, whose occurrence on the site was documented by Mr Kendall, fauna consultant for Stoneco in the EIS Vol 2, Section 4, pp 4.81-4.84. Mr Kendall, for Stoneco and Dr Smith for NHVSS prepared a Joint Report (Ex P7) and gave concurrent evidence.

120 Important resources for Squirrel Gliders are tree hollows, for refuge and nest sites, and flowering trees for food (nectar and pollen).

121 Squirrel Gliders were captured (and re-released) within the Project Site by Mr Kendall. Dr Smith expressed doubt as to whether all specimens had been correctly identified, but there was agreement that a number of the animals were indisputably Squirrel Gliders.

122 The experts did not agree on estimated population size. Mr Kendall has recorded Squirrel Gliders outside of the Project Site to the north, and both experts considered that it was likely there was a single population over an area which included, but was not limited to, the Project Site (Ex P7, Points of Agreement 1c).

123 Of particular concern to both experts was the loss of Squirrel Glider habitat in the stockpile and handling area as proposed in the EIS. They agreed (Ex P7, Agreement 1a) that appropriate relocation of the stockpile and handling area could reduce the impact on the Squirrel Glider to a minimum.

124 During the course of the hearing a proposal to substantially reduce the stockpile and handling area, and concentrate activities within the extraction area was presented by Stoneco (Ex P10).

125 The experts agreed that this redesign addressed the concerns in the joint report at least as far as loss of habitat was involved.

126 Dr Smith maintained concerns about disturbance to Squirrel Gliders from noise and dust. Both noise and dust are addressed in the management plans which Stoneco has proposed be prepared, such proposal being secured by the proposed conditions of consent.

127 With the reduction and modification of the stockpile and handling area and the conditions that would apply to a consent, I find the impact on the local Squirrel Glider population proposed is not likely to be significant, so that an SIS is not required.

Limestone issues

“Kubla Khan” by Samuel Taylor Coleridge.

The debate between the parties

128 A major part of the debate between NHVSS and Stoneco related to the occurrence (or otherwise) of caverns (measureless or otherwise) and whether or not there are subterranean aquatic habitats for biota.

129 NHVSS argues that there is a likelihood of caves of some kind in the limestone to be quarried, water in the caves even if intermittently, and biota in the caves constituting a groundwater dependent ecosystem. NHVSS argue that lack of full scientific certainty as to the presence of caves, biota and a groundwater dependent ecosystem and the proposal’s impact on them should be addressed by applying the precautionary principle. This would entail assuming the presence of caves, biota and groundwater dependent ecosystems in the limestone to be quarried, and evaluating the measures that should be undertaken to prevent or mitigate environmental degradation. NHVSS argue that the proposal should not be approved until further studies have been undertaken as to whether caves, biota and a groundwater dependent ecosystem do in fact occur on the site, their significance and extent, and the extent of any impact. Alternatively, any approval should be subject to conditions requiring redesign of the quarry to drain outwards and use of systems to protect karst systems from polluting drainage.

130 Stoneco argues that the evidence does not sustain a finding that caves, biota and a groundwater dependent ecosystem are present, and hence a finding that there is a threat of serious or irreversible environmental damage. Stoneco submits in these circumstances the precautionary principle is not triggered. Alternatively, if the precautionary principle is triggered, the measures that should be taken should only go so far as is necessary to avoid environmental harm.

131 Resolution of this debate involves an analysis of the evidence on, first, the karst environment to determine whether some form of caves might be likely; secondly, the likelihood of sufficient water in any such caves to support biota; and thirdly, the biota and any groundwater dependent ecosystem that might be present. If caves, biota and a groundwater dependent ecosystem are likely to be present, there is little doubt that quarrying of the limestone poses a threat of serious or irreversible damage to them. The next step in the analysis, therefore, is to determine the measures that ought be undertaken to prevent or mitigate environmental damage.

The likelihood of caves

132 The experts on geology were Dr Osborne for NHVSS and Dr Swabey for Stoneco who prepared a joint report, participated in the view, and gave concurrent evidence. They also collaborated in developing a protocol on cave discovery, for consideration as a condition of consent.

133 The proposal is for the extraction of limestone, from the Timor Limestone within the Project Site. The Timor Limestone comprises a series of strata in ascending order as follows:

Lower limestone unit;
Lower chert band;
Middle massive limestone unit;
Upper massive limestone unit; and
Upper chert band. Above the upper chert band are the mudstones of the Busches formation.

134 The limestone on the site forms part of the western limb of an anticline, along the central axis of which today flows the Isis River, so that the limestone bands on the site dip steeply to the west. The Timor Caves, on Isaacs Creek, are situated in the eastern limb of the anticline.

135 The proposed quarry would extract product from the middle and upper massive limestones both of which are of high purity (more than 95% calcium carbonate). In some of the documentation the middle limestone unit is referred to as a lithographic limestone, but both Dr Osborne and Dr Swabey agreed that it was a massive limestone. The distinction is important because a lithographic limestone is finely bedded, and Dr Osborne opined that if the middle unit was lithographic then it was unlikely that it would contain cave features and that a number of his concerns about potential impacts would be allayed. However as a massive limestone, he was of the opinion that there would be a higher likelihood of cave features being present.

136 Dr Osborne argued that the lower chert band functioned as an aquitard (but not an aquaclude), impeding, but not totally preventing, the passage of water through it. In particular Dr Osborne was of the view that the chert band would significantly reduce the downward passage of water from the middle to lower limestone units, but that it would be less of a barrier to the upward movement of water under pressure.

137 Both experts were of the view that if quarrying were to proceed, maintaining the integrity of the lower chert band was important, and that fracturing of the chert was to be avoided.

138 The differences between the experts related to the nature and importance of karst features in the limestone. One of the issues that flows from this is the likelihood of there being a groundwater dependent ecosystem, with stygofauna (cave dwelling fauna), within the limestone. The geology experts provided information about availability of potential habitat, but did not discuss biota per se, but it was raised as an issue by Dr Smith.

139 A general definition of karst is:

“Karst is a distinct landform shaped largely by the dissolving action of water on carbonate rock such as limestone, dolomite and marble. This process typically occurs over thousands or millions of years, resulting in a variety of surface and below ground features including gorges, sinkholes, underground streams and caves. Karst features interact with the environment to produce complex ecosystems supporting highly specialised plants, animals and micro-organisms.” (From Geologic 2. Department of Environment and Climate Change 2008 – at ).

140 A more complex definition is that provided by Klimchouk (Klimchouk, A, “Hypogene speleogenesis: hydrological and morphogenetic perspective”, National Cave and Karst Research Institute Special Paper No 1, 2007 at p 5):

“‘an integrated mass transfer system in soluble rocks with a permeability structure dominated by conduits dissolved from the rock and organized to facilitate the circulation of fluids.’ Whether karst is expressed at the surface or not is irrelevant. A karst system can operate in the subsurface without any apparent relationship to the surface, being represented exclusively by underground forms that draw their input water from and discharge their output water to other non-karstic rocks.”

141 A feature of karst environments is the presence of caves which typically form in two ways (there are other mechanisms of cave origin, such as marine erosion which can occur in a range of rock types):

“● from surface streams finding their way through cracks in the ground and forming underground rivers;

142 Caves developed by rising groundwater are known as hypogene caves. Importantly they need not have a physical opening to the surface. Many of the world’s largest cave systems are of hypogene origin, and entrances to them were created either by erosion from the surface after the cave formation or by deliberate breakthrough of human origin.

143 Dr Swabey argued for a definition of cave that was restricted to structures permitting access by humans. Dr Osborne favoured a broader definition to include smaller, but interconnected voids and fissures. Dr Osborne’s definition would include all of the caves recognised by Dr Swabey, but even in well known large cave systems with human visitation there would be connections to smaller structures.

144 On the view the Court was shown various surface erosion features on the site, which collectively are referred to as epikarst. The experts agreed that these features were of value, particularly in an area originally proposed for the stockpiling and handling area. With the redesign of this facility (Ex P10) this group of karst features is at much less risk of direct impact.

promoting research, to reduce key uncertainties;
ensuring periodic evaluation of the outcomes of implementation, drawing of lessons, and review of adjustment, as necessary of the measures or decisions adopted; and
establishing an efficient and effective compliance system”: see “Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management” in Appendix A to R Cooney and B Dickson (eds), Biodiversity and the Precautionary Principle, Risk and Uncertainty in Conservation and Sustainable Use, Earthscan, 2005 p. 304, Guideline 12.”

182 The measures adopted should also be proportionate to the threat of environmental damage. A reasonable balance must be struck between the stringency of the precautionary measures, which may have associated costs, such as financial, livelihood and opportunity costs, and the seriousness and irreversibility of the threat: Telstra Corporation Ltd v Hornsby Shire Council at [167]. Considerations of practicability must be taken into account: at [169]. The cost consequences of increasing levels of precaution must be evaluated: at [171]. There should be an assessment of the risk-weighted consequences of various options: at [172] and [173].

183 In the circumstances of this case, I consider that the appropriate and proportionate response to the threat of environmental damage to biota within the limestone is to implement a step-wise or adaptive management approach. This would involve imposition of conditions of consent requiring monitoring linked to adaptive management.

184 Adaptive management is a concept which is frequently invoked but less often implemented in practice. Adaptive management is not a “suck it and see”, trial and error approach to management, but it is an iterative approach involving explicit testing of the achievement of defined goals. Through feedback to the management process, the management procedures are changed in steps until monitoring shows that the desired outcome is obtained. The monitoring program has to be designed so that there is statistical confidence in the outcome. In adaptive management the goal to be achieved is set, so there is no uncertainty as to the outcome and conditions requiring adaptive management do not lack certainty, but rather they establish a regime which would permit changes, within defined parameters, to the way the outcome is achieved.

185 The imposition of regimes for monitoring and adaptive management as an application of the precautionary principle was accepted as appropriate in Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1 at [35] and Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 at [58] and discussed in Telstra Corporation Ltd v Hornsby Shire Council at [163]-[165] .

186 In Zia v WAPDA PLD 1994 SC 693 the Supreme Court of Pakistan was considering a proposal for construction of an electricity grid station where the latest research into the potential hazards of electromagnetic field had not been taken into account. The Supreme Court adopted as a precautionary measure the appointment of an expert commissioner to report on the likelihood of threats and to suggest variations to minimise any danger in Zia at pp 325, 334. Adoption of adaptive management for the life of a project represents an extension of the approach adopted in Zia.

187 The conditions of consent requiring monitoring and adaptive management would operate over the life of a project (and, in the case of rehabilitation, beyond it). Over this period there are likely to be changes in technology, understanding of issues and the environment (for example in 30 years time climatic conditions might be different from those currently prevailing). An adaptive management regime provides the potential for addressing changes without creating a requirement to seek formal amendment of conditions.

188 A draft cave discovery protocol has been developed by the experts for NHVSS and Stoneco to address management issues if caves (in the broad sense) are discovered during extraction (see Schedule 3 of the proposed conditions). However, this protocol would only operate after some damage had already occurred. Given that there will not be absolute certainty as to what might be revealed by blasting and quarrying, there is a need also to develop and implement measures to assess the limestone for caves, voids and fissures, and any biota in them, in advance of blasting.

189 The detail of the pre-blasting assessment protocol will need to be developed. The parties should be given an opportunity to address the Court on the protocol and the conditions to be imposed requiring implementation of the protocol. In basic terms, the protocol will need to identify the process for successive investigation of areas to be quarried, probably by drilled cores. The core holes will need to be examined for presences of cracks, fissures, large voids and water and sampled for biota, both stygofauna and troglofauna. The protocol may need to address frequencies of sampling and the criteria for implementation of measures up to and including closing the operation. There will need to be agreed courses of action depending on the findings from sampling. It may be economic, efficient and effective for certain aspects of the pre-blasting assessment protocol to be integrated with, or to use mechanisms or personnel proposed in, the cave discovery protocol.

Other issues

Consistency with zone objectives

190 Exercising the functions of the Council as consent authority on the appeal, the Court must be satisfied that the proposal is consistent with the relevant zone objectives of the Rural “A” zone laid down in the LEP applicable to the Project Site (cl 9(3)). The proposal is for the quarrying of the natural resource of limestone on the Project Site. The development is permissible with consent in the Rural “A” zone. The proper development of the natural resources, including minerals (which includes limestone) is a general aim of the LEP. Where by its zoning land has been identified as generally suitable for a particular purpose, weight should be given to that zoning in the resolution of a dispute as to the appropriate development of a site: BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 at [117].

191 The Project Site is used for grazing, but its productivity is low having regard to its physiographic and edaphic features and native vegetation cover. For the operating life of the quarry, the extraction area of the Project Site would not be able to be used for grazing. However, after rehabilitation and revegetation, that area would be able to be used for grazing again. In a broader context, the proposal will not affect to a material extent the productive and efficient use of rural land in the zone for agricultural purposes. I am satisfied that the carrying out of the development is consistent with objectives (a) and (b) of the Rural “A” zone.

192 The type of development proposed, and its intensity, is a permissible development in the Rural “A” zone and is appropriate having regard to the characteristics of the land and the rural environment. The development does generate the demand for upgrading of the Timor-Crawney Road and the bridges and culverts on the road. However, the Council states that it has made provision for the cost of providing these public amenities and conditions of consent are proposed for developer contributions to recoup the cost. I am satisfied that the carrying out of the development is consistent with objective (c) of the Rural “A” zone.

193 In relation to objective (d) of the Rural “A” zone concerning the natural resources of the Shire, the Project Site comprises the White Box EEC and habitat of the Squirrel Glider, as well as possible subterranean caves, biota and a groundwater dependent ecosystem. The proposal as modified, minimises and mitigates the adverse impacts on these components of the natural resources of the Shire. Viewed in a spatial and temporal context, I consider that the development is consistent with objective (d) of the Rural “A” zone. Objective (d) cannot be read too literally, otherwise no development permissible in the Rural “A” zone would be approved. All development would have some degree of adverse impact on the natural and scenic resources of the Shire. A common sense approach needs to be adopted. In this case, having regard to the particular features of the development as modified, the proposed conditions on which it would be carried out and the proposed ameliorative measures, the natural resources of the Shire that comprise the White Box EEC, the Squirrel Glider and their habitat, and any possible caves, biota and groundwater dependent ecosystems, will be conserved for the Shire, notwithstanding the potential loss in the particular area of extraction for the period of the operating life of the quarry.

Development principles in rural zones

194 Clause 10 of the LEP establishes general principles to apply to development applications in rural zones. Clause 10(1)(a) and (b) refer to the agricultural uses of land. Although no maps of land suitability and capability were shown to the Court, no suggestion was made by any party or the resident objectors that the land has such high agricultural capability that it should not be developed.

195 Clause 10(1)(c) addresses the existing rural and scenic character of the Shire. While a quarry will change landforms, the topography and location of the quarry and surrounding features are such that the quarry will not cause an unacceptable visual impact from the road or indeed any dwelling. The existing rural and scenic character will be unaffected.

196 Clause 10(1)(d) is not applicable as the proposal is to allow the proper recovery of a valuable deposit of extractive material.

197 Clause 10(1)(e) and (f) require the consent authority to consider traffic issues and the cost to the Council of providing and maintaining public amenities and services. The Council has indicated commitments to upgrading the road infrastructure so as to provide for the transportation of limestone product from the site. Provided these commitments, which are specified in the proposed conditions, are met then the Court is satisfied that the proposal is consistent with the zone objectives.

Compatibility of proposal with other land uses

198 Clause 12 of the Mining SEPP requires consideration of the compatibility of the proposal as an extractive industry with other land uses in the vicinity. The development will not have any significant impact on the uses of land outside of the Project Site. Proposed conditions will ensure that off-site impacts, such as noise, vibration and dust, will be regulated to acceptable standards. Traffic and road safety issues are also able to be satisfactorily addressed. The evaluation and comparison required by cl 12 between conflicting uses does not arise.

Conditions ensuring natural resource management and environmental management

199 Clause 14 of the Mining SEPP requires a consent authority to consider conditions that would be appropriate to ensure that the development is undertaken in an environmentally responsible manner, including conditions to ensure minimisation of impacts on surface water and groundwater resources and on threatened species and biodiversity and minimisation of greenhouse gas emissions. The conditions proposed by Stoneco and the Council go a long way towards meeting this aim. However, further conditions are needed, for the reasons given earlier, to minimise the impacts on groundwater resources and biota and the proposed conditions also will need modification as discussed below. If these steps are taken, the conditions of consent will achieve the aim in cl 14 of the Mining SEPP.

Residents’ concerns

200 The resident objectors raised a number of concerns. Concerns about adequacy of the road and road safety have been addressed by the Council and the proposed conditions provide for both upgrading the infrastructure and implementation of a traffic management plan.

201 Effects on water supplies will be monitored through proposed condition 1.12. Dust and blasting issues are proposed to be addressed by monitoring and the operational plan for the quarry. The Court was provided with advice indicating that concerns about potential risks from the release of fine particles of silica into the air were allayed.

202 The quarry site will be rehabilitated. While the rehabilitation plan is yet to be developed, conditions should be imposed to require a rehabilitation plan which will address the concerns of residents.

203 Questions about the socio-justification for the quarry, and the effects on property values were raised, but no evidence was presented. While the residents may have legitimate concerns, in the absence of testable information, they cannot be taken in account.

204 Mr McIntyre’s specific concerns about proximity to his dwelling house will be addressed at the stage when the grant of a Mining Lease is being considered by the Minister. This may result in a redrawing of the Mining Lease boundary so as to exclude the access road adjacent to the Timor Crawney Road, thereby complying with s 62 of the Mining Act which requires a setback of 200 m from Mr McIntyre’s dwelling house. The location of the quarry itself would not alter, so the basis for his concerns might remain, but technically the problem will have been solved. The access from the quarry to the Timor Crawney road was also of concern to Mr McIntyre. The EIS’s description of the access road was more of the nature of a concept plan and more detail would be needed before construction. A condition of consent should require submission and approval by the CounciI of detailed plans showing the access road and its intersection with the Timor Crawney Road.

Conditions of consent

205 During the course of the proceedings, Stoneco and the Council have prepared revised draft conditions of consent and NHVSS has suggested modifications to a number of these. The conditions are grouped in six schedules: Schedule 1 deals with the development approved and general conditions; Schedule 2 contains the general terms of approval of DECCW; Schedule 3 contains the cave discovery protocol; Schedule 4 contains the requirements for planning, assessment and project site management; Schedule 5 involves environmental management, reporting and auditing; and Schedule 6 involves landscape management and rehabilitation. I will deal with the disputed conditions in each of the Schedules and other conditions I consider should be modified.

Schedule 1: Approval and general conditions

206 NHVSS propose two sets of conditions for deferred commencement of the consent. Condition S1.1A proposes deferring commencement until Stoneco submits plans to the satisfaction of the Council demonstrating that:

“(a) No road will pass within 5 metres of the outer edge of any stand of Xanthorrhoea glauca or Ficus rubiginosa ;

(b) No extraction of rock or alteration of the surface landform will take place within 15 metres in any direction of the outer edge of any stand of Xanthorrhoea glauca or Ficus rubiginosa ;

207 The stands of Xanthorrhoea glauca and specimens of Ficus rubiginosa on the Project Site are distinctive and valuable features and ought where practicable be conserved. To a large extent the extraction area avoids the stands of Xanthorrhoea glauca and it should be possible for internal roads to avoid the stands. Some specimens of Ficus rubiginosa may occur in the extraction area and it is not practicable to conserve these on pillars of rock surrounded by a quarry. I consider it will be sufficient for a provision to the effect of subpara (a), but not (b), to be included as an operative general condition, perhaps after condition S1.24. The parties can address the Court on the precise wording, if contested.

208 The outwards drainage of the quarry pit was recommended in the evidence by Dr Swabey, Stoneco’s cave expert, in order to prevent pollution of subterranean aquifers. DECC, in its response to the EIS (Ex C1, tab 28, p 9), recommended that management practices, risk assessment and pollution mitigation should be undertaken on the assumption that a groundwater dependent ecosystem is present in the karst aquifer below the proposed site. Requiring outward drainage of the quarry pit is consistent with this recommendation. I do not consider it is necessary to make this a deferred commencement condition but rather it can be included as a requirement in the operational conditions. I note that NHVSS propose a new condition S1.12B to this effect as well as modifications to condition S1.39 proposed by Stoneco and the Council. NHVSS’s proposals are appropriate. In addition, the conditions for a soil and water management plan (“SWMP”) in Schedule 4, such as an additional requirement of the SWMP in condition S4.3, should be amended to require outward drainage of the quarry pit.

209 The other set of deferred commencement conditions proposed by NHVSS is in condition S1.1B requiring Stoneco to submit to the Council a mining operations plan and various management plans. The requirement for submission of such plans is appropriate but I consider it need not be a deferred commencement condition but can be instead an operational condition.

210 Accordingly, I do not consider NHVSS’s proposed deferred commencement conditions should be imposed, although aspects of them can be made part of the operational conditions as discussed above.

211 General condition S1.2 specifies the documents in accordance with which the development is to be carried out. NHVSS proposed adding to the list three documents: the plan identifying the revised location of the stockpile and handling area; Stoneco’s response to the RTA information request dated 30 January 2009; and Stoneco’s response to DECC’s submission dated 6 February 2009. NHVSS also adds these documents to the paramountcy provision in condition S1.2.2. I consider it is appropriate to add these documents to the condition. I accept NHVSS’s proposed condition S1.2.

212 Conditions S1.3 to S1.6 are agreed between the parties.

213 Condition S1.7 is appropriate, however, it would benefit from being linked to condition S1.33. The latter condition proposes upgrading of bridges and roads before quarrying, and hence haulage of product, can commence.

214 Condition S1.8 is agreed. NHVSS proposes minor wording changes to condition S1.9.1 which should be accepted.

215 Conditions S1.10 and S1.11 are agreed by the parties but could be improved by being linked to the conditions requiring preparation and implementation of a soil and water management plan. These latter conditions in Schedule 4 require periodic review of management plans and adaptive management. This process may result in the need for stricter erosion and sediment controls and surface water criteria. Conditions S1.10 and S1.11 should be modified to require implementation of any improvements in controls and criteria over the life of the project.

216 Condition S1.12 deals with groundwater monitoring. Stoneco and the Council have suggested an improved condition requiring three groundwater monitoring bores in response to the Court’s concern as to the inadequacy of the previously proposed condition that had only one monitoring bore. The Council suggests that any recommendations arising out of the groundwater monitoring protocol required by the condition be incorporated into the Mining Operations Plan and Soil and Water Management Plan. This is appropriate. However, NHVSS submit that even the improved condition is still inadequate.

217 The intent of condition S1.12 is to monitor and manage conditions below the lower chert band. There is no proposal to excavate or impact directly, the geological strata of the lower chert band or below. Indeed, condition S1.37 prohibits excavation of the lower chert band. However, there was concern that quarrying operations above the lower chert band potentially might impact on groundwater below the lower chert band and any groundwater dependent ecosystem (GDE) biota that might there exist. Condition S1.12 establishes a procedure for monitoring of any impact of the proposed quarry on the groundwater and GDE biota.

218 The condition first specifies the process for selecting the location of the three monitoring bores. This includes a qualified hydrologist and GDE expert selecting and reporting to the Council on the location of the monitoring bores (S1.12.3) having regard to the purposes for which the monitoring bores are to be used (S1.12.1) and the criteria for selection of the location of the monitoring bores (S1.12.2). The Council must approve the proposed location (S1.12.4).

219 Stoneco is to develop and have approved by the Council a protocol for sampling GDE fauna (S1.12.5). The condition currently refers to GDE fauna only. I consider that the sampling should be extended to GDE biota and the condition should be amended accordingly. Similar changes should be made to other references to GDE fauna elsewhere in condition S1.12. The sampling protocol for fauna can be developed in accordance with the principles referred to in Hancock and Boulton but consideration will need to be given to whether different procedures should be followed for other GDE biota. Any variations to the sampling protocol approved by the Council must be justified and approved by the Council (S1.12.6).

220 Monitoring and sampling is required to commence no later than 3 months before quarrying operations commence (S1.12.7). I consider this period is too short to allow for seasonal variations in groundwater levels or quality or in GDE biota. Unless an adequate period is allowed, the historic, baseline data will be incomplete and meaningful comparison with data collected after quarrying operations commence may not be possible. My initial view is that a period of at least 12 months should be provided for so as to cover all of the seasons. However, I will allow the parties to address on the precise period that should be selected.

221 The condition specifies the mechanisms and intervals for monitoring (S1.12.7A and S1.12.7B).

222 The results of the monitoring and sampling of groundwater and GDE biota are to be reported in writing to the Council at quarterly intervals (S1.12.8). For the first 2 years of testing, each quarterly test report is to be accompanied by a statement from a GDE expert detailing the results and their significance and recording the expert’s concerns, if any, arising from the monitoring and sampling, including any apparent, actual or potential impact of any reduction in water quality on GDE biota (S1.12.8). If the GDE expert reports concerns, Stoneco is to engage a qualified hydrologist to review the concerns and make recommendations about the manner in which quarrying operations should continue so as to address the concerns (S1.12.9).

223 After 2 years of monitoring and sampling, Stoneco may (but is not required to) engage a GDE expert to review the sampling data set and make recommendations about whether the sampling frequency may be reduced or should be increased and whether the sampling parameters should be varied. The GDE expert’s report is to be submitted to the Council for determination on the recommendations (S1.12.10).

224 The cumulative results/data of the monitoring and sampling is to be reported in the Annual Environmental Management Report (AEMR) (S1.12.11). This is to be repeated in each AEMR for each year of the operating life of the quarry. The AEMR is to include statements from a qualified GDE expert and hydrologist. The GDE expert is to review the annual data set from the three monitoring bores and make relevant comparisons with the historical data taken from those bores and make findings. The hydrologist is to review the GDE expert’s findings and make recommendations about the manner in which the quarrying operations should continue on the site, including recommendations about the way in which any impacts on water quality and on GDE biota should be addressed (S1.12.12).

225 There is no formal mechanism for the approval and implementation of the findings of the GDE expert recommendations of the hydrologist AEMR, that is to say, for adaptive management. This deficiency needs to be addressed in condition S1.12, and confirmed in condition S5.2 dealing with the AEMR.

226 Providing the modifications I have noted are made, I consider this condition S1.12 will be adequate.

227 NHVSS proposes two new conditions. Condition S1.12A proposes a regime for storage of fuels to prevent pollution on site and of any karst aquifer below the Project Site and a prohibition on storage of explosives on site. These would seem to be appropriate precautionary approaches consistent with the recommendation of DECC. However, Stoneco and the Council can address the Court if they wish to propose an alternative approach.

228 Condition S1.12B expands on NHVSS’s proposed condition S1.1A(c) for outward drainage of the quarry pit. I have already found this approach is appropriate. The condition should be accepted as well as including the proposal for outward drainage in the soil and water management plan conditions.

229 Conditions S1.13 to S1.19 are agreed between the parties.

230 NHVSS proposed amending condition S1.20 to require the sealing of all roads inside the Project Site and not just the intersection of the site access road with Timor-Crawney Road for a distance of 20m and the covering of trucks transporting material both within the quarry site and from the premises. In the absence of evidence supporting the more onerous and costly condition proposed by NHVSS, the condition should remain in the form proposed by NHVSS and the Council.

231 Condition S1.21 proposes a biodiversity offset for the loss of White Box EEC. Originally this was assessed to be 0.2 ha but would need to be revised to 6 ha in accordance with my findings earlier in the judgment. Condition S1.21 therefore needs amendment as proposed by NHVSS. The process for proposing and securing the offsets is set out in conditions S1.21.1 to S1.21.4. NHVSS express concern as to the uncertainty of the process. Having regard to the fact that the area of the biodiversity offset will need to be increased significantly from 0.2 ha to 6 ha, and this may raise the issue of the availability of suitable land, Stoneco should have an opportunity to address the Court on the certainty and implementation of this process for a biodiversity offset. In addition, as the proposal for a biodiversity offset included in conditions S1.21.1 to S1.21.4 was settled in consultation with DECC, and under condition S1.21.3 DECC must consider and accept the proposed biodiversity offset prior to Stoneco clearing any vegetation, Stoneco should also refer the issue to DECC to give it an opportunity to provide further comment if it chooses.

232 NHVSS also propose additional requirements dealing with loss of hollow bearing trees and replacement of habitat (proposed condition S1.21.5- S1.21.6), care of fauna during clearing (proposed conditions S1.21.7-S1.21.8), replacement of Yellow Box, White Box and Blakely’s Red Gum trees removed (proposed conditions S1.21.9-S1.21.10) and the washing of vehicles and machinery to prevent import of weeds and pest species (condition S1.21.11). NHVSS based these additional requirements on the Council’s initial conditions before they were subsequently amended. I consider proposed conditions S1.21.5 to S1.21.8 and S1.21.11 are appropriate. Condition S1.21.9 and S1.21.10 are unnecessary if appropriate rehabilitation of the quarry site is undertaken in accordance with other conditions of the consent. NHVSS appropriately corrected a typographical error in condition S1.21.12.

233 Conditions S1.22 to S1.24 are agreed.

234 Condition S1.25 concerns the cave discovery protocol and implements Schedule 3. I will comment on this protocol in the section on Schedule 3.

235 Conditions S1.26 to S1.31 are agreed. NHVSS proposes an appropriate correction of S1.32.1.

236 Condition S1.33.1 deals with the works to upgrade bridges on the Timor-Crawney Road. NHVSS proposes that additional bridges be referred to in the condition. This is appropriate. However, I would not necessarily require replacement bridges to be installed; rather, it would be sufficient to specify that quarrying work not commence operation until the specified bridges are repaired or replaced or otherwise modified so as to meet the prescribed structural capacity. This would leave the means by which the bridges are brought up to that standard to the Council to determine. The appropriateness of imposing such a condition was recognized in McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 at 171 and Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633.

237 Condition S1.34 is agreed but the name of the department should be amended to reflect current names.

238 Conditions S1.35 to S1.37 are agreed. NHVSS suggests appropriate typographical corrections in S1.36.2 and S1.36.3.

239 Condition S1.38 is agreed. NHVSS proposes a minor clarification to S1.38.1 that seems appropriate.

240 Condition S1.39 deals with drainage of the quarry. NHVSS’s proposed amendment is appropriate and accords with other conditions proposed to meet the goal of preventing pollution of the karst aquifer under the quarry site. The mechanisms for avoiding drainage into the karst and for filtering water with potential to drain into the karst should be addressed in the soil and water management plan required to be prepared under the conditions in Schedule 4.

241 Conditions S1.40 and S1.41 are agreed.

Schedule 2: DECC General Terms of Approval

242 Schedule 2 sets out DECC’s general terms of approval and they are agreed between the parties.

Schedule 3: Cave Discovery Protocol

243 Schedule 3 deals with the cave discovery protocol drafted in response to the expert evidence of Drs Swabey and Osborne. As noted earlier in the judgment, a fundamental weakness of the cave discovery protocol is that it operates only if a cave is discovered during quarrying activities; it does not require investigation before quarrying activities. For this reason, I consider that it is insufficient and needs to be supplemented by a process of investigation for caves, biota and groundwater dependent ecosystems before blasting and quarrying.

244 As far as the cave discovery protocol is concerned, NHVSS suggested a number of amendments. These are generally directed to tightening the condition’s enforceability and objectivity and eliminating discretion of the quarry owner and/or manager. As a general proposition, I consider the suggestions are improvements and NHVSS’s proposed conditions ought to be accepted. However, I would allow Stoneco to address on the particular wording.

245 One key point of difference between NHVSS and Stoneco is that Stoneco sought compensatory expansion of the quarry laterally or in depth to provide an equivalent tonnage and grade to the material sterilised by protecting a cave, whilst NHVSS opposed this course and submitted that a s 96 modification application should be required before any compensatory expansion of the quarry is permitted. I agree with NHVSS and accept its proposed condition.

Schedule 4: Planning, Assessment and Project Site Management

246 Schedule 4 requires a mining operations plan and various management plans. The parties agree on the need for these plans. NHVSS proposed they be prepared and approved prior to the consent commencing operation (as a deferred commencement condition). I have held above that a deferred commencement condition is not required and the conditions in Schedule 4 can be operational conditions.

247 The only other point of disagreement between the parties concerned the requirement for a conservation agreement or public positive covenant with respect to the requirements under condition S4.5 concerning the Biodiversity Management Plan. NHVSS submits that there should be a registered conservation agreement under Div 12 of Pt 4 of the National Parks and Wildlife Act 1974 (“NPW Act”) and that DECC is the appropriate body to supervise rather than the Council. Stoneco and the Council proposed leaving the alternatives of either a conservation agreement or a public positive covenant in favour of the Council. I consider an alternative should be provided for in the condition. If DECC does not agree to a conservation agreement under the NPW Act then there would be no securing of performance of the requirements under Biodiversity Management Plan. Under the proposal of Stoneco and the Council, however, if a conservation agreement were not possible, a public positive covenant could be registered. I find, therefore, that condition S4.5(f) should retain the alternatives suggested by Stoneco and the Council, however, the first alternative of a conservation agreement should be amended to include the more specific language proposed by NHVSS.

Schedule 5: Environmental Management, Reporting and Auditing

248 Schedule 5 deals with environmental management, reporting and auditing. The conditions are agreed. NHVSS suggests one additional matter for reporting in the Annual Environmental Management Report concerning changes in groundwater quality, potential impacts on groundwater dependent ecosystems and measures to avoid such impacts. This is now required by the revised condition S1.12 (see S1.12.11 and S1.12.12). This is appropriate. As the revised condition S1.12 was drafted after NHVSS commented on condition S5.2, the parties should consider whether condition S5.2(f) should be redrafted to reflect the revised condition S1.12.

Schedule 6: Landscape Management and Rehabilitation

249 Schedule 6 deals with landscape management and rehabilitation. Conditions S6.1 and S6.2 are agreed. Condition S6.3 deals with the rehabilitation management plan. NHVSS suggested some additional requirements. In principle these seem appropriate but I will give Stoneco and the Council an opportunity to address on the wording.

250 NHVSS suggests deletion from condition S6.6 of the option of the Council approving alternative species for short-term soil stabilisation. I agree. The list of species has been subject to scrutiny by the parties’ ecologists and agreement reached that the species listed in the table to the condition to be used in short-term soil stabilisation will not remain in the environment as weeds. There is a sufficient number of species in the table so as to retain flexibility.

Conclusion

251 I consider that if appropriate conditions can be drafted to address the matters raised in the judgment, the proposal is appropriate to be approved. I propose the following directions for the parties to address the outstanding matters and propose further and amended conditions:

1. Stoneco is to file and serve by 16 April 2010 any evidence and submissions on a pre-blasting assessment protocol and amended conditions.

2. The Council and NHVSS are to file and serve by 30 April 2010 any evidence and submissions on a pre-blasting assessment protocol and amended conditions.

3. Stoneco is to file and serve any reply by 7 May 2010.

4. Leave is granted for any party to restore the matter on 2 days’ notice if there is disagreement on compliance in these directions.

CITATION:	Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48
PARTIES:	APPLICANT Newcastle & Hunter Valley Speleological Society Inc FIRST RESPONDENT Upper Hunter Shire Council SECOND RESPONDENT Stoneco Pty Limited
FILE NUMBER(S):	10497 of 2009
CORAM:	Preston CJ
KEY ISSUES:	APPEAL :- objector appeal against Council’s decision to grant consent to limestone quarry – whether species impact statement (‘SIS’) required - whether endangered ecological community (‘EEC’) present on project site - whether vulnerable species listed under Threatened Species Conservation Act 1995 present on project site – whether likely significant impact on EEC or listed vulnerable species - no likely significant impact on EEC or vulnerable species – no SIS required - uncertainty as to presence of caves and cave-dwelling fauna on project site - whether quarry likely to cause serious or irreversible environmental damage – threat of environmental damage scientifically likely – precautionary principle applied – precautionary measures – monitoring and adaptive management - included in conditions of consent to prevent environmental damage – whether proposal is consistent with zone objectives - whether proposal is compatible with other land uses - whether improvements to road infrastructure adequately provided for in conditions of consent. PRECAUTIONARY PRINCIPLE: uncertainty as to presence of caves and cave-dwelling fauna on project site - whether quarry likely to cause serious or irreversible environmental damage – threat of environmental damage scientifically likely – precautionary principle applied – precautionary measures – monitoring and adaptive management - included in conditions of consent to prevent environmental damage. THREATENED SPECIES: whether species impact statement (‘SIS’) required - whether endangered ecological community (‘EEC’) present on project site - whether vulnerable species listed under Threatened Species Conservation Act 1995 present on project site – whether likely significant impact on EEC or listed vulnerable species - no likely significant impact on EEC or vulnerable species – no SIS required.
LEGISLATION CITED:	Environment Protection and Biodiversity Conservation Act (Cth) 1999 Environmental Planning and Assessment Act 1979 Fisheries Management Act 1994 Land and Environment Court Act 1979 Mining Act 1992 National Parks and Wildlife Act 1974 Native Vegetation Act 2003 Protection of the Environment Administration Act 1991 Threatened Species Conservation Act 1995
CASES CITED:	BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237 BT Goldsmith Planning Services Pty Ltd v Blacktown City Council [2005] NSWLEC 210 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Commonwealth of Australia v Randwick City Council [2001] NSWLEC 79 Corowa v Geographe Point Pty Ltd [2007] NSWLEC 121; (2007) 154 LGERA 117 Drummoyne Municipal Council v Maritime Services Board (1991) 72 LGRA 186 Grampian Regional Council v City of Aberdeen District Council (1984) 47 P&CR 633 Hoffman Homes v Administrator, 961 F2d 1310 (7th Circuit 1992) Hoffman Homes v Administrator, 999 F2d 256 (7th Circuit 1993) Hub Action Group Inc v Minister for Planning [2008] NSWLEC 116; (2008) 161 LGERA 136 Masterbuilt Pty Ltd v Hornsby Shire Council [2002] NSWLEC 170 McCarthy v Mulwaree Shire Council (1992) 78 LGERA 158 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Motorplex (Australia) Pty Ltd v Port Stephens Council [2007] NSWLEC 74 Nambucca Valley Conservation Association v Nambucca Shire Council [2010] NSWLEC 38 Oshlack v Richmond River Shire Council (1993) 82 LGERA 222 Plumb v Penrith City Council [2002] NSWLEC 223 Port Stephens Pearls Pty Ltd v Minister for Infrastructure and Planning [2005] NSWLEC 426 Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55 Rosemount Estates Pty Ltd v Cleland (1995) 86 LGERA 1 Rosemount Estates Pty Ltd v Minister for Urban Affairs and Planning (1996) 90 LGERA 1 Smyth v Nambucca Shire Council [1999] NSWLEC 226; (1999) 105 LGERA 65 Telstra Corporation Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; (1999) 46 NSWLR 55 Tuna Boat Owners Association of SA Inc v Development Assessment Commission (2000) 77 SASR 369; 110 LGERA 1 VAW (Kurri Kurri) Pty Ltd v Scientific Committee (Established under s127 of the Threatened Species Conservation Act (1995)) [2003] NSWCA 297; (2003) 58 NSWLR 631, 128 LGERA 419 Zia v WAPDA PLD 1994 SC 693
DATES OF HEARING:	30 November 2009, 1 December 2009, 2 December 2009, 4 December 2009
DATE OF JUDGMENT:	31 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr P Larkin with him Mr C Norton (barristers) SOLICITORS Environmental Defender's Office FIRST RESPONDENT Mr P Jayne (solicitor) SOLICITORS Sparke Helmore SECOND RESPONDENT Mr J Robson SC SOLICITORS McPhee Kelshaw