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

Land and Environment Court

of New South Wales

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

PARTIES:
APPLICANT
Newcastle & Hunter Valley Speleological Society Inc
FIRST DEFENDANT
Upper Hunter Shire Council
SECOND DEFENDANT
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 - conditions of consent

CASES CITED: Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254
Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48
Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; (2006) 153 LGERA 355

DATES OF HEARING: 28 May 2010, 31 May 2010, 18 June 2010, 23 June 2010

DATE OF JUDGMENT:
23 June 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

23 JUNE 2010

10497 of 2009

NEWCASTLE & HUNTER VALLEY SPELEOLOGICAL SOCIETY INC V UPPER HUNTER SHIRE COUNCIL AND STONECO PTY LIMITED (NO 2)
JUDGMENT

1 HIS HONOUR: On 31 March 2010, I gave judgment indicating that the proposed limestone quarry was appropriate to be approved if suitable conditions could be drafted to address the matters raised in the judgment: Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48. I made directions for the parties to address the outstanding matters and propose further and amended conditions.

2 A further hearing was held on 28 and 31 May 2010 at which additional evidence was adduced and revised conditions tendered. Evidence was given on two topics: caves and their biota and surface biodiversity. As to the first, the issues related to the pre-blasting assessment protocol. Dr Osborne and Dr Swabey again gave evidence. They agreed concerning the safe distance for blasting from caves. Dr Osborne also gave brief evidence as to inspection under the Cave Discovery Protocol following initial excavation on the first bench to be cut. Dr Peter Hancock gave evidence for the applicant, in a report dated 19 May 2010, on the design and implementation of a pre-blasting assessment protocol. Dr Hancock’s recommendations were adopted in the revised conditions tendered.

3 As to the second topic, the issues related to the measures proposed to offset the impacts of the proposed quarry on the White Box endangered ecological community. Mr Dominic Fanning, ecologist, gave evidence for Stoneco. In his evidence in chief in a report dated 6 May 2010, Mr Fanning proposed that the Project Site be extended to the south to incorporate, within a 6ha area, the north-facing slope of the next ridge to the south of the quarry ridge, which supports the same Large-flowered Bundy-Kurrajong with a Lomandra understorey community as is presently on the quarry site itself, as well as the whole of the south-facing slope of the quarry ridge, which supports the closely related Large-flowered Bundy-Kurrajong with a grassy understorey community. Both of these vegetation communities fall within the White Box endangered ecological community.

4 Dr Clements again gave evidence for the applicant. In her report of 21 May 2010, Dr Clements agreed that the vegetation communities in the 6ha area proposed by Mr Fanning were appropriate as a biodiversity offset. However, Dr Clements disagreed that this 6ha area alone was sufficient. Dr Clements applied the six principles of offsetting which she said were held by Jagot J, but in fact were proposed by a witness, in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; (2006) 153 LGERA 355 at [38]. Dr Clements applied these principles to the proposed 6ha area alone and did not consider the remaining 60ha of the Project Site.

5 Mr Fanning in his report of 24 May 2010, in reply noted that the 6ha biodiversity offset was supplementary to the other measures proposed to retain, protect and manage in perpetuity for biodiversity conservation purposes the balance of the Project Site. These measures are detailed in the revised conditions of consent, including:

preparation and implementation of a Biodiversity Management Plan (S1.2.3 and S5.5);
conservation in perpetuity of vegetation on the Project Site outside of the extraction area (S1.21.2 and S5.5(g));
checking of tree hollows prior to removal and replacement of tree hollows lost (S1.21.4-1.21.9 and S7.2);
prohibition of clearing of native vegetation on the Project Site outside of the extraction area (S1.22.1);
prohibition on roads within 5 metres of any stand of Xanthorrhoea glauca (grass trees) or Ficus rubiginosa which is located outside of the boundaries of the extraction area (S1.24A.1);
restrictions on grazing within the Project Site (S1.36 and S5.5(f)(viii) and (g));
the rehabilitation of the Project Site, especially the extraction area (S5.5(d)-(f) and S7.3);
weed management of the Project Site (S5.5(f)(i));
protection of sensitive site features and their buffer areas, including Xanthorrhoea glauca and gullies and their vegetation (S5.5(f)(ii)-(iv)); and
preparation and implementation of a Landscape Management Plan (S7.1) incorporating a Vegetation Clearing Plan (S7.2), Rehabilitation Management Plan (S7.3) and Mine Closure Plan (S7.4).

6 Mr Fanning observes that the total offset package comprising not only the supplementary 6ha biodiversity offset but also the biodiversity conservation measures proposed in the revised conditions, entirely satisfies the principles referred to in Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council.

7 At the further hearing, the parties made submissions in relation to the revised conditions where these were in dispute. I made rulings ex tempore on the disputed conditions. These rulings necessitated further revision of the conditions. I made directions setting a timetable for the parties to prepare further revised conditions.

8 These further revised conditions were filed on 11 June 2010. There were still some matters on which the parties remained in disagreement relating to the pre-blasting assessment protocol and the Biodiversity Management Plan and offsets. I also had concerns as to the wording of a number of the conditions. A further hearing was therefore held on 18 June 2010 at which the parties made submissions and I made rulings ex tempore. On one final matter, relating to what should be the appropriate response of Stoneco to the finding of material of geodiversity significance during the pre-blasting assessment (condition S3.32), Stoneco sought time for consideration and to make submissions later. A further timetable was directed culminating with a final hearing on 23 June 2010 if the parties were not able to reach agreement beforehand.

9 On 21 June 2010, the Council filed further revised conditions incorporating my rulings on 18 June 2010 and a revised condition S3.32. The Council advised that Stoneco, the applicant and the Council had reached agreement as to the wording of condition S3.32. A further hearing was therefore not required.

10 As a result, all of the conditions of consent have now been settled. I consider that proposed limestone quarry if carried out in accordance with these final conditions of consent is appropriate and should be approved.

11 I do not accept the applicant’s submission that the evidence does not permit the Court to formulate appropriate conditions that adequately address the risks to geodiversity and biodiversity. The final conditions implement a precautionary, adaptive management approach, yet still meet criteria of finality and certainty.

12 The final conditions also ensure adequate offset is provided for damage caused to the White Box endangered ecological community by the proposed development. The offset is not merely the supplementary 6ha area to be included in the extended Project Site. It also includes the long-term conservation of the vegetation on all of the Project Site not directly to be quarried or used for ancillary works and uses (54ha) as well as, after quarrying operations have finished, the rehabilitation and conservation of the areas damaged and used for quarrying operations (6ha). The long-term conservation of the White Box endangered ecological community on the combined area of 66ha will be required by the final conditions of consent (as summarised above). I am satisfied that there will be gains in the conservation of biodiversity of sufficient magnitude in these total offset areas to compensate for the loss of vegetation during quarrying operations.

13 In this respect, I prefer the evidence of Mr Fanning that the measures proposed for the retention and protection for biodiversity conservation purposes of the whole of the 66ha of the Project Site contributes to offsetting the damage caused by quarrying operations, rather than the evidence of Dr Clements who focussed only on the supplementary 6ha area.

14 In order to grant consent on the final conditions, it is necessary for the Court to uphold the appeal. This order is necessary notwithstanding that the appeal is a third party objector appeal by the applicant against the decision of the Council to grant consent. As I noted in another third party objector appeal, Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 at [5]-[6], in order to approve a development that is different in material respects, and on different conditions from those originally approved by the Council, it is necessary for the Court to uphold the appeal.

15 Accordingly, the formal orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to development application number 308/08 for a limestone quarry, stockpiling and handling area, site access road and internal access track on land comprising part of Lot 31 in DP 748766, subject to the conditions in Annexure A.

3. The exhibits may be returned.

Form 6 (version 1)

UCPR 6.9

ANNEXURE “A”

to Court Orders dated 23 June 2010

CONDITIONS OF CONSENT

COURT DETAILS

Court Land and Environment Court of New South Wales

Class 1

Case number 10497 of 2009

TITLE OF PROCEEDINGS

Applicant Newcastle & Hunter Valley Speleological Society Inc.

1^st Respondent Upper Hunter Shire Council

2^nd Respondent Stoneco Pty Ltd

A. PREAMBLE

A1. Development consent is hereby granted for a limestone quarry, stockpiling and handling area, site access road and internal access track, having a combined area of 5.85 hectares, as depicted on the Preferred Project Layout Plan, together with all site rehabilitation works, to be carried out over a period of 30 years from the date of commencement of excavation in accordance with the conditions set out in Schedules 1, 2, 3, 4, 5, 6 and 7 below, all of which form part of this consent.

A2. In this development consent the following definitions are used:

“ Council ” means Upper Hunter Shire Council (or its successor);
“ DECCW ” means the New South Wales Department of Environment, Climate Change and Water (including any successor to that Department which exercises the same or similar statutory responsibilities)[Note: any reference to DECC means a reference to DECCW];

“ Department of Industry & Investment ” means the New South Wales Department of Industry & Investment (including any successor to that Department which exercises the same or similar statutory responsibilities);

“ DWE ” means the New South Wales Department of Water and Energy (including any successor to that Department which exercises the same or similar statutory responsibilities);
“ Lot 31 ” means Lot 31 in DP 748766;

“ Preferred Project Layout Plan” means the plan entitled “ Amended Preferred Project Site Layout Figure B ”, prepared by R W Corkery Pty Limited being the plan that is annexed to this development consent and marked “A” ;
“ Project Site ” means that part of Lot 31, having an area of approximately 66 hectares, that will be owned by the Applicant and within which the quarry site is located, being the land hatched in “red” and the land coloured “green/blue” on the plan prepared by Whelans Insites dated 6 May 2010 that is annexed to this development consent and marked “B” ;
“ Quarry Site ” means the footprint of the quarry, which will be excavated during quarrying, identified as the “Extraction Area” in the Preferred Project Layout Plan.

SCHEDULE 1

S1.1 The application has been determined by granting of consent, subject to the following conditions:-

S1.1.1 Compliance with the provisions of the Local Government Act 1993 and Environmental Planning and Assessment Act 1979 (as amended).

S1.1.2 Compliance with the relevant codes of the Standards Association of Australia adopted by the Building Code of Australia.

S1.1.3 Compliance in all respects with the requirements of any restrictive covenants applying to the property.
Reason: The applicant is responsible to ensure that any restrictive covenants affecting the property are complied with.

S1.2 General

S1.2.1 The proposed development must be carried out in accordance with the proposal described in the Environmental Impact Statement (R.W. Corkery & Co Pty Limited, 2008), except as modified by

(i) these conditions,

(ii) engineering and subdivision requirements imposed by the Council;

(iii) the location of the stockpile and handling area in the “Preferred Project Layout Plan”;

and/or the requirements of the Environmental Planning and Assessment Act 1979.

Mining Operations Plan and Mine Closure Plan

S1.2.2 The Applicant shall prepare and submit for approval by the Director-General of the Department of Industry & Investment each of the following:

(a) a Mining Operations Plan:

(b) a Mine Closure Plan.

Each of those plans shall be prepared in accordance with the Mining Act 1992 and with all other applicable legislation. Following the approval of each of those plans, the Applicant shall provide a copy of the approved plans to the Council.

Note: Under this consent, the Applicant is required to rehabilitate the Project Site to the satisfaction of the Council and the consent will continue for this and related purposes.

Management Plans

S1.2.3 The Applicant shall prepare and submit to the Council for approval each of the following:

(a) a Soil and Water Management Plan (SWMP) prepared in accordance with conditions S5.2(a) and S5.3;

(b) an Air Quality Management Plan (AQMP) prepared in accordance with conditions S5.2(b) and S5.4 ;

(c) a Biodiversity Management Plan (BMP) prepared in accordance with conditions S5.2(c) and S5.5 ;

(d) an Environmental Management Strategy (EMS) prepared in accordance with condition S6.1;

(e) a Landscape Management Plan (LMP) prepared in accordance with condition S7.1;

(f) a Vegetation Clearing Plan (VCP) prepared in accordance with condition S7.2;

(g) a Rehabilitation Management Plan (RMP) prepared in accordance with condition S7.3; and

(h) a Lower Chert Band Management Plan (LCBMP), prepared in accordance with conditions S5.2(d) and S5.6.

S1.2.4 Each of the plans submitted by the Applicant to the Council in accordance with condition S1.2.3 shall be assessed by the Council. The Council (acting reasonably) may require the Applicant to amend the Plans. After any such amendments are made by the Applicant, the Council shall approve each of those plans. No works may commence on the Project Site until the Council has approved each of those plans listed in S1.2.3 (a), (b) and (f). No extraction works may commence on the Quarry Site until:

(a) the Council has approved all other remaining plans listed in S1.2.3; and

(b) the Director-General of the Department of Industry Investment has approved the plans in S1.2.2.

S1.2.5 If from time to time, and in accordance with these conditions, the Applicant (whether of its own volition or in accordance with recommendations made pursuant to these conditions) proposes any amendments to the plans referred to in condition S1.2.3 then those proposed amendments shall be submitted by the Applicant to the Council for approval.

S1.2.6 An amendment to a plan under condition S1.2.5 does not take effect until:

(a) the Council has approved the amendments; and

(b) the Applicant has made any further amendments required by the Council (acting reasonably) as a condition of approving the amendments.

S1.2.7 The Applicant shall fully implement each of the plans referred to in condition S1.2.3, including any amendments to those plans approved by the Council in accordance with S1.2.6.

S1.2.8 If there is any inconsistency between these conditions of consent and any of the following:

(a) the Environmental Impact Statement;

(b) the documents referred to in S1.2.1 (iii)-(v); or

(c) the plans referred to in S1.2.2 and S1.2.3,

then the conditions of consent shall prevail.

Reason:

To ensure development complies with this approval and proposal which was considered.

S1.3 Period of Approval

S1.3.1 In respect of the right to conduct limestone extraction and processing operations, this consent is limited to a period of 30 years from the date of effective commencement of this development consent (as defined by Section 83 of the Environmental Planning and Assessment Act 1979).
Reason: To comply with the stated period of operational consent.

S1.4 Limits of Approval

S1.4.1 The Applicant shall not transport more than 100,000 tonnes of limestone per year from the Project Site.

S1.4.2 The Applicant shall restrict extraction operations to the Quarry Site, which is coincident with the area identified as the “Extraction Area” in the Preferred Project Layout Plan.

S1.4.3 Transportation of product from the Project Site shall be restricted to Monday to Saturday. No transportation is to be carried out on Sundays or Public Holidays.

S1.4.4 The maximum limit number of daily truck movements to and from the Project Site on Monday to Friday shall not exceed 32 truck movements (16 loads) per day. The maximum limit number of daily truck movements to and from the Project Site on Saturday shall not exceed 16 truck movements (8 loads) per day.

S1.4.5 Product trucks shall be limited to a maximum of Class 9 vehicles (in accordance with the AUSTRoads vehicle classification system) i.e. six axle articulated vehicle or rigid vehicle and trailer. The maximum gross weight limit of such trucks shall not exceed 42.5 tonnes.

S1.4.6 Product trucks are prohibited from using Haydons Lane for access to or from the Project Site to the New England Highway.
Reason: To ensure the quarry operates within the limits of the approval.

S1.5 Contribution for the Maintenance and Construction of Public Road and Bridge Infrastructure

S1.5.1 The Applicant is to pay a monetary contribution to the Council of $100,000 (one-hundred thousand dollars) prior to commencement of any works on the Project Site.

S1.5.2 The Applicant is to pay a monetary contribution to the Council at the rate of $1.00 (one dollar) per tonne of limestone extracted from the Project Site and transported on road infrastructure maintained by the Council subject to S1.5.5 below.

S1.5.3 The rate of payment of the monetary contribution referred to in S1.5.2 above, shall be reduced to $0.50 per tonne of limestone extracted from the Project Site and transported on road infrastructure maintained by the Council until the total amount of limestone transported exceeds 100,000 tonnes (one-hundred thousand tonnes).

S1.5.4 The contribution is to be paid quarterly to the Council by the last business day of January, April, July and October each year. The contribution to be paid on those dates is the total liability of the Applicant owing to the Council, for the preceding quarter ending 31 December, 31 March, 30 June and 30 September.

S1.5.5 The Rate is to be increased at the commencement of each calendar year in line with the Consumer Price Index.

S1.5.6 Note: The rate of the payment will remain the same if the Consumer Price Index decreases.

S1.5.7 The amount of the contribution is to be based on approved weighbridge or approved portable weighing system recordings of limestone transported from the Project Site. Copies of records are to be submitted to the Council with each payment, and original records are to be made available for inspection at such other times as may be required.
Reason: To ensure that public road and bridge infrastructure is of adequate standard and is adequately maintained during the life of the quarry.

S1.6 Traffic Safety

S1.6.1 Prior to work commencing on the Project Site, the Applicant shall provide an appropriate two-way radio to the school bus that uses the haulage route. The bus drivers shall be appropriately trained in the use of the radio.

S1.6.2 Prior to work commencing on the Project Site, the Applicant shall provide a code of conduct to all truck drivers (using the quarry) outlining the required conduct during the delivery of materials and details of the local school bus movements. The code must require:

(a) that all loads be covered in accordance with the Department of Environment and Climate Change General Terms of Approval.

(b) all loaded trucks are loaded using a front-end loader with weigh cells, or other approved weighing system, prior to leaving the Project Site to avoid overloading;

(c) truck drivers to be conscious of the school bus and school children and their pick-up / drop-off locations, particularly during specified pick-up / drop-off times; and to drive in a courteous and safe manner;

(d) a 20km/hr speed limit for trucks whilst travelling along unsealed sections of the internal site access road;

(e) restriction of material transport within daylight hours with no product trucks entering the Project Site before 7.00am or leaving the Project Site after 5.00pm daily (Monday to Saturday); and

(f) have an agreed communication protocol between truck drivers and the school bus company.

S1.6.3 Prior to work commencing on the Project Site the Applicant shall prepare and submit to the Council for approval detailed plans showing the access road within the site and the intersection of that access road with Timor-Crawney Road. No work shall be carried out on the Project Site until those plans are approved by the Council.

S1.6.4 Prior to the commencement of haulage of product from the Project Site, the Applicant shall construct pull-over bays in four (4) locations approved by the Council’s Traffic Committee along the Timor Road haul route. The bays shall be for the purpose of enabling loaded trucks to pull over and enable safe overtaking by other traffic along steep sections of the haul route. The bays are to be of adequate dimensions and construction standard to safely fulfill their purpose. Where approved by Council, the bays may coincide with school bus pick up/drop off locations.

Reason: To ensure heavy vehicles associated with the quarry operate in a safe manner.

Reason

: To ensure product transportation does not commence until the haulage route is constructed to a standard that will allow for the safe movement of heavy vehicles.

S1.8.1 Pursuant to section 80A(1) of the Environmental Planning and Assessment Act 1979, and the Council Section 94A Development Contributions Plan 2008, a contribution of $ 7,500 shall be paid to Council. The amount to be paid is to be adjusted at the time of the actual payment, in accordance with the provisions of the Council Section 94A Development Contributions Plan 2008. The contribution is to be paid prior to work commencing.

Reason:

To ensure that the proposed development makes an appropriate contribution to facilities in the Upper Hunter Local Government Area.

S1.9 Department of Water and Energy

(a) provide evidence to the Council prior to the commencement of work that the test groundwater license(s) for the exploration drill holes have been obtained in accordance Section 112 of the Water Act 1912 prior to work commencing.

(b) provide evidence to the Council prior to the commencement of work that works and use approval and a Water Access License has been obtained in accordance with the Water Management Act 2000 if required by the DWE as part of the proposed repealing of the Water Act 1912.

Reason

: To ensure the requirements of the Department of Water and Energy have been met.

S1.10.2 The capacity of the clean water dam is to be increased in consultation with the DECCW or any other responsible authority, to provide the maximum capacity that is legally permissible on the Project Site and which is considered to be practicable. The Applicant shall secure the consent or approval of any authority, in addition to the Council, that is required in respect of this dam, before construction of the dam commences.

S1.10.3 The controls nominated in this condition S1.10 shall be reviewed and modified to reflect any amendments to the SWMP (referred to in S5.2(a) and S5.3), arising from a periodic review of the SWMP in accordance with S5.7(g) and/or S6.7.
Reason: To prevent unacceptable levels of sediment movement from the Project Site during construction and operation of the quarry.

(a) the quality of water discharged from the Project Site; and

(b) surface water quality upstream and downstream of the development (at the Project Site boundary) in the tributaries identified in Table 4.5 and Figure 4.3 of the EIS;
and report the results of this monitoring in the Annual Environmental Management Report (AEMR) (refer to Condition S6.2). The results must be reported in a form satisfactory to the Council. The Applicant shall ensure that the quality of water discharging from the Project Site is within the criteria outlined in Table 1, or of the same quality of the water measured upstream of the quarry operations.

Table 1 : Surface Water Quality Criteria

Parameter

Unit

100% Concentration Limit

Total Suspended Solids

mg/L

50

Electrical Conductivity

µS/cm

1500

Biochemical Oxygen Demand

mg/L

20

pH

-

6.5-8.5

S1.11.2 The controls nominated in this condition S1.11 shall be reviewed and modified to reflect any amendments to the SWMP (referred to in S5.2(a) and S5.3), arising from a periodic review of the SWMP in accordance with S5.7(g) and S6.7.

Reason: To ensure that surface waters are not being adversely impacted by quarry construction or operation.

S1.12.1 Before quarrying commences on the project site, the applicant shall drill three groundwater monitoring bores within the Project Site or 2 in the Project Site and 1 in the road reserve to the north of the Project Site, subject to any relevant statutory approvals, which shall be used to:

(a) monitor the impacts of the proposed quarry on the groundwater in the alluvium below the Quarry Site (alluvial aquifer) and on the subjacent limestone aquifer;

(b) monitor variations in water table levels;

(c) take water samples for analysis of water quality; and

(d) sample for the presence in the alluvial aquifer and in the subjacent limestone aquifer of groundwater dependent ecosystem (“GDE”) species, including stygofauna;
(e) monitor variations in any GDE populations present in the alluvium and limestone.

The bores referred to in this condition S1.12.1 may also be utilised for monitoring in accordance with condition S3.14(f)(ii), provided they are otherwise suited for that purpose.
S1.12.2 One of the three (3) groundwater monitoring bores shall be drilled in a location that will allow any natural variation in the density and frequency of stygofauna present in the alluvial and limestone aquifers, together with water chemistry and sediment load, to be ascertained (reference monitoring site). Each of the three (3) groundwater monitoring bores must be drilled to at least five metres below the lowest level of the water table, with the depth of the bore to be determined having regard to fluctuations in the level of the water table, reflecting seasonal variations in the level of the water table that have been recorded in respect of bores on land in the locality.

S1.12.3 The applicant shall engage a qualified hydrologist and an appropriately qualified GDE expert. The hydrologist shall, in consultation with the GDE expert, prepare a report which, having regard to S1.12.2 and to the required use of the monitoring bores under S1.12.1:

(a) recommends the proposed location of each of the three (3) groundwater monitoring bores;

(b) explains the bases upon which the experts’ recommendations are made; and
(c) confirms that the recommended locations of the three (3) groundwater monitoring bores will ensure that the bores can be used for the purposes identified in condition S1.12.1 and will satisfy S1.12.2.

S1.12.4 The report referred to in S1.12.3 must be submitted to the Council, and the Council must approve the proposed location of each of the three (3) groundwater monitoring bores, before any of those bores are drilled.

S1.12.5 The Applicant shall develop and submit to the Council for approval a sampling protocol for GDE biota. That protocol shall be developed having regard to both the principles outlined in “ Sampling Groundwater Fauna: Efficiency of Rapid Assessment Methods Tested in Bores in Eastern Australia ”, Hancock and Boulton “ Freshwater Biology (2009) 54 , 902-917 ” (“the GDE Sampling Protocol”), in relation to GDE fauna, and to industry best practice in relation to the sampling of other GDE biota. In particular, the GDE Sampling Protocol must provide, amongst other matters that on each occasion on which sampling takes place for the purpose specified in S1.12.1(e), GDE biota must be sampled by using a combination of pump sampling and phreatobiological net sampling, together with such other sampling methods as will maximise the prospects of recovering GDE fauna and other GDE biota. The GDE Sampling Protocol must be approved by the Council before the first groundwater sample is taken, in accordance with S1.12.7.

S1.12.6 The GDE Sampling Protocol may be varied by the Applicant with the approval of the Council. Any such request for a variation of the protocol must be accompanied by a statement/report from appropriate experts (either a GDE expert and/or a hydrologist) in support of the variation.
Reason: To allow for any variation/innovation of scientific methodology and/or sampling techniques and/or equipment over the life of the development.

S1.12.7 Monitoring and sampling in accordance with this condition S1.12 must commence no later than twelve (12) months prior to the commencement of extraction.

S1.12.8 Groundwater must be monitored and sampled in accordance with conditions:

(a) S1.12.1(a) and (b), continuously, without interruption; and

(b) S1.12.1(c), (d) and (e), at quarterly intervals,
from the date on which monitoring and sampling commences, in accordance with condition S1.12.7.

S1.12.9 Unless the Council accepts any other mechanism for the continuous monitoring of groundwater quality, that monitoring shall be undertaken by installing in each of two (2) groundwater monitoring bores (excluding the bore utilized to collect reference monitoring data) an instrument which takes water quality measurements at intervals no greater than thirty (30) minutes. The instrumentation used for this purpose must be capable of detecting any deterioration in water quality and in the event that any such deterioration is detected, an alert must be transmitted to at least two (2) representatives of the operator of the quarry. The alert system utilized by the water quality instrumentation must be disclosed to and approved by the Council before water quality monitoring commences.

S1.12.10 The results of the groundwater monitoring and sampling and the results of the GDE biota monitoring and sampling must be reported to the Council, in writing. Those reports shall be submitted at quarterly intervals, within one month of the date on which each sampling for GDE biota takes place. For the first 3 years of testing, each quarterly test report must be accompanied by a statement from an appropriately qualified GDE expert, detailing the results and their significance, and recording the GDE expert’s concerns, if any, arising from the water monitoring and water sampling, including concerns in relation to apparent, actual or potential impacts of any reduction in water quality on the GDE biota or specific taxa.
Reason: To provide the council with an understanding of the GDE and other taxa observed during the initial 3 years of the development.

S1 . 12.11 If the GDE expert’s statement does record any of the concerns that are referred to in condition S1.12.10, then the Applicant shall engage a qualified hydrologist to review the findings made by the GDE expert and to make recommendations about the manner in which the quarrying operations should continue on the Project Site, including recommendations about the way in which any reductions in water quality and any variations in GDE biota should be addressed.
S1.12.12 After a three (3) year period has elapsed, from the date on which the first set of bore samples is taken and recorded, the Applicant may engage an appropriately qualified GDE Expert to review the sampling data set and make any written recommendations about whether the sampling frequency may be reduced or should be increased, and whether the sampling parameters should be varied. Any recommended changes in the frequency of bore sampling must take into account any seasonal variations in taxa numbers and recommend specific times of the year that sampling be undertaken. This report must be submitted to the Council and the Council may determine to reduce or to increase the bore-sampling frequency and parameters being sampled.

S1.12.13 The cumulative results/data of the monitoring and sampling must be reported in the Annual Environmental Management Report (AEMR)[see Condition S6.2]. That is, the monitoring and sampling data from all previous years must be set out in a cumulative monitoring and sampling table for each subsequent AEMR for the life of the development.

S1.12.14 The AEMR must include statements from an appropriately qualified GDE expert and from a qualified hydrologist. The GDE expert shall review the annual data-set from the three (3) groundwater monitoring bores (making any relevant comparisons with historical data taken from those bores) and shall summarise his or her findings. The qualified hydrologist shall review the findings made by the GDE expert and shall make recommendations about the manner in which the quarrying operations should continue on the Project Site, including recommendations about the way in which any impacts on water quality and on GDE biota should be addressed.

S1.12.15 The recommendations made under S1.12.11 and S1.12.14 must be incorporated by the Applicant as proposed amendments to the Mining Operations Plan [condition S5.1] and to the Soil and Water Management Plan [conditions S5.2(a) and S5.3].

S1.12.16 The actions referred to in condition S1.12.15 must be taken within two (2) months of the date on which the recommendations are made to the quarry owner. Within one (1) month of receiving those recommendations the quarry owner must provide to the Council a copy of the recommendations made by the qualified hydrologist and details of the actions that will be taken by the quarry owner to implement those recommendations.
Reason: To ensure that ground waters are not being adversely impacted by quarry construction or operation.

S1.12A.1 Any fuel stored on site must be contained within a double skinned mini tanker. This tanker must be located within the stockpile and handling area except when required to be moved for refilling or refueling operations. It must be returned to the stockpile and handling area immediately after use.

S1.12A.2 All hydrocarbons, including those within the mini-tanker, must be stored on bunded pallets with 110% the capacity of the largest container stored on that pallet.
S1.12A.3 No explosives are to be stored on the Project Site. Explosives must only be brought to the Project Site 24 hours prior to any blast event.

S1.12B.1 Drainage works for the quarry floor, work areas and access roads must be designed to minimize the input of these materials into the karst. The quarry pit must be designed to drain outwards and so as not to collect water.

AIR QUALITY, BLAST AND NOISE

Pre-Blast Building Condition Report

S1.13.1 The Applicant shall commission a suitably qualified person, whose appointment has been approved by Council, to inspect and report on the condition of buildings on Lot 1 DP 590486 prior to the commencement of blasting (subject to the owner of that lot agreeing to that inspection).
S1.13.2 The report must:

(a) identify the current condition of the buildings on Lot 1 DP 590486 and:

(b) if appropriate, recommend measures that could be implemented by the owner of that lot, to minimize the impacts of blasting on the buildings located on the lot; and
(c) recommend the measures that could be taken by the Applicant to minimize the impacts of any blasts undertaken at the Quarry Site, including measures that could be taken in relation to the design of any blast.

S1.13.3 A copy of this report is to be provided to Council and the landowner prior to the commencement of blasting. The Applicant must implement any of the measures referred to in condition S1.13.2(c) as the Council (acting reasonably) requires, subject to the applicant obtaining the consent of the owner of Lot 1 DP 590486 for any measures that require that owner’s consent.
S1.13.4 If the landowner of Lot 1 DP 590486 claims in writing that his/her buildings on this property have been damaged as a result of blasting from the approved operations, the Applicant shall within 1 month of receiving this request:

(a) commission a suitably qualified person, whose appointment has been approved by Council, to investigate the claim; and
(b) provide Council and the landowner with a copy of this report.

S1.13.5 If this independent investigation confirms the landowner’s claim, and both parties agree with these findings, then the Applicant shall repair the damages to the satisfaction of Council.

S1.13.6 If the Applicant or landowner disagrees with the findings of the independent property investigation, then either party may refer the matter to Council for resolution.
S1.13.7 If the matter cannot be resolved within 21 days, Council shall refer the matter to an Independent Dispute Resolution Process.

Reason: To ensure the blasting activities do not have an impact on the structure of the buildings on the subject land.

S1.14.1 A Blasting Management Protocol must be prepared to the satisfaction of DECCW, which will include details about:

(a) Compliance standards;

(b) Mitigation measures;

(c) Remedial action;

(d) Monitoring methods and program;

(e) Monitoring program for fly-rock distribution;

(f) Measures to protect underground utilities (e.g.: rising mains, subsurface telecommunication and electric cables), and livestock nearby;
(g) Notification of procedures for neighbours prior to detonation of each blast;
(h) Measures to ensure no damage by fly-rock to people (including people travelling on foot or in vehicles along adjoining or adjacent public roads), property, livestock and power lines.

S1.15 Blast Monitoring

(a) monitor any blasts and record the overpressure and peak particle velocity in accordance with the approved Blast Management Protocol (condition S1.14.1); and

(b) incorporate an additional off-site blast monitor at a location to be determined in consultation with Council, and

Annual Environmental Management Report

Reason

: To ensuring blasting is undertaken in accordance with approved practices.

S1.16.1 Surface blasting operations on the Quarry Site may only take place between 10:00am and 4:00pm Monday to Friday inclusive.

S1.17.1 The monitoring of deposited dust shall be undertaken by an appropriately qualified independent consultant, certified by an appropriate body, on the Project Site and at two locations adjacent to the Project Site for a period of two (2) years following the commencement of operations.

S1.17.2 The location of the two monitoring sites shall be on the properties identified as R1 (Lot 1 DP 590486) and R2 (Lot 214 DP 44391), unless the owners of the lots concerned will not permit such monitoring within their land, in which case the Council shall nominate an alternative location or locations at which that monitoring shall take place.

S1.17.3 The monitoring gauge shall be set up in the locations referred to in condition S1.17.2 and shall be maintained in accordance with relevant dust monitoring standards.

S1.17.4 Following the initial three (3) years of dust monitoring (including one (1) year of monitoring prior to the commencement of operations at the Project Site) the results of that monitoring shall be reviewed in consultation with the Council.

Reason

: To establish the extent of dust impacts associated with the operation of the quarry.

S1.18.1 The following points, referred to in the table below are identified for the purposes of monitoring and/or the setting of limits for the level of pollutants at the point.

Table 2 : Air quality monitoring points

Identification

Type of monitoring point

Description of location

R1

Ambient air monitoring

Lot 1 DP 590486

R2

Ambient air monitoring

Lot 214 DP 44391

Q1

Ambient air monitoring

The Project Site

S1.18.2 Requirement to monitor concentration of pollutants

(a) For each monitoring point specified below that is not owned by the Applicant, the Applicant must monitor (by sampling and obtaining results by analysis) the concentration of each pollutant specified in column 1. The Applicant must use the sampling method, units of measure and the sample frequency, specified opposite in the other columns.

Table 3 : Point R1

Units of measure

Averaging Period

Sample frequency

Sample Method

Deposited dust *

g/m ² /month

Month

continuous

NSW DECC AM-19 and AM-1

PM10

µg/m ³

24 hour

Special frequency 1.

NSW DECC AM-18 and AM-1

(b) Special frequency 1 is defined as monitoring each sixth day per the NSW DECC sampling cycle for a minimum period of one year starting when the activity reaches the lesser of an annual throughput of 30,000 tonnes of product per annum or 1,100 truckloads of product per annum, and continuing until one full year of monitoring where no exceedence of the concentration limits (which is attributable to the quarry) is recorded whilst the activity is above the lesser of either an annual throughput of 30,000 tonnes of product per annum or 1,100 truckloads of product per annum.

(c) Following one full year of monitoring where no exceedence of the concentration limits is recorded the need for ongoing PM10 dust monitoring would be reviewed in consultation with the Council.
(d) In lieu of PM ₁₀ monitoring when activity exceeds 30,000 tonnes of product per annum or 1,100 truckloads of product per annum, Council will consider, upon the request of the Applicant, the following alternative:

(1) Sealing the full length of the internal access road with bitumen, or

(2) Agreeing to treat the full length of the internal access road with a dust suppressant (e.g. Coherex, DustBlock or equivalent) in accordance with the manufacturers’ recommendations.

(e) PM10 monitoring may however still be required in accordance with the above, upon receipt of any substantiated complaint about dust from the occupier of Residence R1, which is verified by a deposited dust reading exceeding 4g/m ² /month.

Table 4 : Point R2 and Q1

Units of measure

Averaging Period

Sample frequency

Sample Method

Deposited dust *

g/m ² /month

Month

continuous

NSW DECC AM-19 and AM-1

(f) The monitoring of deposited dust shall be undertaken for a minimum period of one (1) year prior to, and two (2) years following, the commencement of operations. The location of the monitoring sites shall be per the table of monitoring locations, unless alternative locations are approved by Council in accordance with condition S1.17.2. Following the initial two (2) years of operation the need for ongoing dust monitoring would be reviewed in consultation with the Council.

Reason : To establish the extent of dust impacts associated with the operation of the quarry.
S1.18.3 Concentration limits

(a) For each monitoring/discharge point specified in the table below, the concentration of a pollutant discharged at that point, must not exceed the concentration limit specified for that pollutant in the table.

Table 5 : Point R1

Pollutant

Units of measure

Concentration limit

PM ₁₀

µg/m ³

50*

* Excludes data obtained during periods of regional pollution events such as dust storms and bushfires. This requirement does not apply if location R1 is applicant owned or an agreement which the Council considers is suitable is in place between the Applicant and the owner of R1
S1.18.4 Monitoring records

(a) The results of any monitoring required to be conducted by this Notice of Determination must be recorded and retained as set out in this condition.
(b) All records required to be kept by this Notice of Determination must be:

(1) in a legible form, or in a form that can readily be reduced to a legible form;

(2) kept for at least 4 years after the monitoring or event to which they relate took place; and,

(3) produced in a legible form to any Council officer who asks to see them.

(c) The following records must be kept in respect of any samples required to be collected for the purposes of this Notice of Determination:

(1) the date(s) on which the sample was taken;

(2) the time(s) at which the sample was collected;

(3) the point at which the sample was taken; and

(4) the name of the person who collected the sample.

Reason : To ensure there are adequate records maintained and available for audit by the consent authority.

S1.19.1 The Applicant shall ensure that dust levels generated by the approved activities do not exceed the levels identified in Table 6.

Table 6 : Long-term impact assessment criteria for deposited dust

Residence

Averaging Period

Maximum increase in deposited dust level

Maximum total deposited dust level

R1 (Lot 1
DP 590486)

Month

2 g/m ² /month

4 g/m ² /month

R2 (Lot 214
DP 44391)

Month

2 g/m ² /month

4 g/m ² /month

Note : Deposited dust is assessed as insoluble solids as defined by Standards Australia, 2003, AS 3580.10.1-2003: Methods for Sampling and Analysis of Ambient Air - Determination of Particulates - Deposited Matter – Gravimetric Method .
Reason : To ensure that the long-term impact assessment criteria for deposited dust does not exceed these criteria.

S1.20.1 The Applicant shall undertake to strengthen the pavement to appropriate engineering design standards- and bitumen seal the carriageway of Timor-Crawney Road (labelled as Waverley Road in Figure 2.1 of the Environmental Impact Statement) between the Project Site entrance and Starrs Crossing (approximately 700m in length). Such work shall be completed prior to the haulage of limestone products (other than for construction purposes) from the Project Site. This work shall be undertaken in accordance with the engineering requirements of the Council.

S1.20.2 The Applicant shall seal the intersection of the Project Site access road with Timor-Crawney Road for a distance of 20m inside the property boundary. This work shall be undertaken in accordance with the engineering requirements of the Council.
S1.20.3 The Applicant shall implement dust management measures to minimise the emission of dust from the Project Site and which include but are not limited to the following.

(a) Covering of trucks transporting material from the Project Site as soon as practicable after loading and prior to leaving the Project Site;

(b) Restricting vehicle speeds on internal access roads / tracks to 20km/hr;

(c) Watering of the Project Site access road and active areas within the stockpiling and handling area;

(d) Installation of a cover over the conveyor;

(e) Use of misting water sprays or similar during crushing operations and on the product conveyor, particularly at any transfer points;

(f) Wherever possible, stripping soil material with sufficient moisture content to minimise dust generation and during appropriate wind conditions; and
(g) Utilisation of a drill rig, with water injection or a dust collection system, when undertaking any drilling on the Project Site.

Reason : To minimise the potential dust impact.

FLORA AND FAUNA

S1.21.1 Clearing of about 6 ha of White Box – Yellow Box – Blakely’s Red Gum Woodland EEC vegetation on the Project Site is required to be offset as per the ‘Principles for the use of biodiversity offsets in NSW’ (DECC 2008).
S1.21.2 Due to the planned permanent change to biodiversity within the area of 5.85 hectares that will be disturbed or eliminated by the proposed development, the parts of the Project Site outside of that area will either be:

(a) reserved in perpetuity by a conservation agreement and managed for conservation; or
(b) protected by the registration of a public positive covenant and/or a restriction on the use of land (in favour of the Council);
as elected by the Council in consultation with the DECCW, requiring the management of the Project Site, in accordance with the BMP referred to in condition S5.5.

S1.21.3 Prior to commencement of any vegetation clearing, the Applicant must submit to the DECCW for consideration and acceptance the proposed biodiversity offset. No clearing may occur prior to DECCW advising the Council that the offset is acceptable.

S1.21.4 Prior to any clearing the appropriate size and number of hollow bearing trees to be removed must be recorded and the same number of nesting boxes of appropriate sizing must be installed in similar vegetation within the Project Site. The nesting box design chosen must reflect the size of hollows removed, with microbat nesting boxes used to replace small hollows, and Squirrel Glider nesting boxes to replace medium sized hollows.

S1.21.5 Prior to clearing, hollow bearing trees must be observed by an appropriately trained or qualified person to determine if hollow bearing fauna are present. Hollow bearing trees in use must be marked and surrounding vegetation cleared several days prior to the removal of the hollow bearing trees. This would be done to promote the vacation of any hollows in use.

S1.21.6 A suitably trained or qualified person must also be present during the felling the identified hollow bearing trees to provide assistance with the care of any injured fauna.

S1.21.7 Any animals found would need to be checked, and details of the species, number, condition (age class, pregnant or lactating females etc) must be recorded and the details provided to the NSW Wildlife Atlas [ ] and to Council within three (3) months of the clearing event.

S1.21.8 The Applicant must prepare, in consultation with a qualified ecologist, a plan for the washing of vehicles and machinery that have worked in soil offsite. This is to be implemented to prevent machines and vehicles bringing weeds and pest species onto the Project Site.

S1.21.9 An annual inspection is to be made by persons whose qualifications and/or experience to undertake such inspections, have been approved by Council, during each of the first five (5) years of operation of the quarry of the nesting boxes placed on the Project Site, and also of the health of the planted White Box, Yellow Box and Bundy seedlings. The inspection report must include a review of the condition and use of the nesting boxes. Any planted White Box, Yellow Box and Bundy trees that are found to have died are to be replaced, with any actions taken to help ensure that the new plantings have a better chance of becoming established.
Reason : To ensure adequate measures are taken to protect native flora and fauna.

S1.22.1 The Applicant shall ensure that no native vegetation clearing is undertaken (clearing being defined as: cutting down, felling, thinning, logging or removing native vegetation, killing, destroying, poisoning, ring-barking, uprooting or burning native vegetation) on any part of the Project Site outside the approved areas.
S1.22.2 Where clearing is required it must be to the minimal extent necessary.

Reason : To ensure a minimal amount of native vegetation is cleared for the purpose of the development.

HERITAGE AND LANDSCAPE FEATURES

S1.23.1 If human remains are located all works must halt in the immediate area to prevent any further impacts to the find or finds. The local police, the Aboriginal community and DECCW are to be notified.

S1.23.2 If the remains are found to be of Aboriginal origin and the police consider the site not an investigation site for criminal activities, DECCW should be notified and works are not to resume in the designated area until approval in writing is provided by DECCW.

S1.23.3 In the event that a criminal investigation ensues works are not to resume in the designated area until approval in writing from the Police and DECCW.
S1.23.4 If Aboriginal cultural objects are uncovered due to the development activities the following actions must be undertaken:

(a) all works must halt in the immediate area to prevent any further impacts to the find(s);

(b) The discovery must be reported to the National Parks and Wildlife Service immediately;

(c) A suitably qualified archaeologist and Aboriginal community representatives must be contacted to determine the significance of the find(s);

(d) If required by DECCW, the site is to be registered in the Aboriginal Heritage Information Management System (AHIMS) together with the management outcome for the site; and
(e) The Aboriginal community representatives shall be consulted to develop and implement management strategies for the sites, with all information required for informed consent being given to the representatives for this purpose.

S1.23.5 All reasonable efforts must be made to avoid impacts to Aboriginal Cultural Heritage values at all stages of the development works.

S1.23.6 If impacts are unavoidable, mitigation measures are to be negotiated with the Aboriginal community and DECCW.
Reason : To ensure adequate measures are taken to protection items of Aboriginal cultural heritage.

S1.24.1 The Applicant shall conserve the remainder of the linear stone feature that has been identified on the Project Site that is not required to be disturbed as part of the approved operations.
Reason : To ensure that no further disturbance of the feature occurs (other than that within the approved operational areas).

ROADS AND VEGETATION

S1.24A.1 No road will pass within 5 metres of the outer edge of any stand of Xanthorrhoea glauca or Ficus rubiginosa which are located outside of the boundaries of the Quarry Site.

S1.25.1 On discovery of a cave or a void larger than 0.5 m in diameter within the Project Site by any means, the Applicant shall immediately implement the Cave Discovery Protocol in Schedule 4 of these conditions.
Reason : To ensure that measures are taken to protect karst features and dependant ecosystems.

ADDITIONAL PROCEDURES FOR AIR QUALITY AND NOISE MANAGEMENT

S1.26.1 If the results of the air quality or noise monitoring required in this consent identify that the air pollution and/or noise generated by the development is greater than any of the air quality or noise criteria specified in this consent, then the Applicant shall notify the Council and the affected landowner accordingly, take all necessary measures to reduce such exceedance and provide quarterly monitoring results to each of these parties until the results show that the development is complying with the relevant air quality and/or noise criteria .

S1.27.1 If a landowner considers the development to be exceeding the air quality and/or noise criteria specified in this consent then he/she may ask the Applicant in writing for an independent review of the air pollution and/or noise impacts of the development on his/her land. If the Applicant does not agree that an independent review should be undertaken, such requests shall be referred to the Council for determination.
S1.27.2 If the Council is satisfied that an independent review is warranted, the Applicant shall within 3 months of the Council advising that an independent review is warranted:

(a) consult with the landowner to determine his/her concerns;

(b) commission a suitably qualified, experienced and independent person, whose appointment has been approved by the Council, to conduct air quality and/or noise monitoring on the land, to determine whether the development is complying with the relevant air quality and/or noise criteria specified in this consent; and
(c) give the Council and landowner a copy of the independent review.

S1.27.3 If the independent review determines that the development is complying with the relevant air quality and/or noise criteria specified in this consent, then the Applicant may discontinue the independent review with the approval of the Council.
S1.27.4 If the independent review determines that the development is not complying with the relevant air quality and/or noise criteria specified in this consent, then the Applicant shall:

(a) take all reasonable and feasible measures, in consultation with the landowner, to ensure that the development complies with the relevant air quality and/or noise criteria; and

(b) conduct further air quality and/or noise monitoring to determine whether these measures ensure compliance; or
(c) secure a written agreement with the landowner to allow an exceedance of the air quality and/or noise criteria specified in this consent, to the satisfaction of the Council.

S1.27.5 If the additional monitoring referred to above subsequently determines that the development is complying with the relevant air quality and/or noise criteria specified in this consent, then the Applicant may discontinue the independent review with the approval of the Council.

S1.27.6 If the measures referred to above do not achieve compliance with a noise land acquisition criteria of 40dB(A) LAeq(15 minute), and the Applicant cannot secure a written agreement with the landowner to allow this exceedance within 3 months, then the Applicant shall, upon receiving a written request from the landowner, acquire the landowner’s land in accordance with the procedures in Condition S1.28 of this consent.
S1.27.7 If the landowner disputes the results of the independent review, either the Applicant or the landowner may refer the matter to the Council for resolution.

S1.28.1 Within 3 months of receiving a written request from a landowner with acquisition rights, the Applicant shall make a binding written offer to the landowner based on:

(a) the current market value of the landowner’s interest in the property at the date of this written request, as if the property was unaffected by the approved operations, having regard to the:

(1) existing and permissible use of the land, in accordance with the applicable planning instruments at the date of the written request; and

(2) presence of improvements on the property and/or any approved building or structure which has been physically commenced at the date of the landowner’s written request, and is due to be completed subsequent to that date;

(b) the reasonable costs associated with:

(1) relocating within the Upper Hunter local government area, or to any other local government area determined by the Council;

(2) obtaining legal advice and expert advice for determining the acquisition price of the land, and the terms upon which it is required; and

(c) reasonable compensation for any disturbance caused by the land acquisition process.

S1.28.2 However, if at the end of this period, the Applicant and landowner cannot agree on the acquisition price of the land, and/or the terms upon which the land is to be acquired, then either party may refer the matter to the Council for resolution.

S1.28.3 Upon receiving such a request, the Council shall request the President of the NSW Division of the Australian Property Institute to appoint a qualified independent valuer or Fellow of the Institute, to consider submissions from both parties, and determine a fair and reasonable acquisition price for the land, and/or terms upon which the land is to be acquired.

S1.28.4 If either party disputes the independent valuer’s determination, then the independent valuer should refer the matter back to the Council.
S1.28.5 Upon receiving such a referral, the Council shall appoint a panel comprising the:

(a) appointed independent valuer;

(b) Council and/or nominee/s; and
(c) President of the Law Society of NSW or nominee, to consider submissions from both parties, including meeting with the parties individually if requested, and to determine a fair and reasonable acquisition price for the land, and/or the terms upon which the land is to be acquired.

S1.28.6 Within 14 days of receiving the panel’s determination, the Applicant shall make a written offer to purchase the land at a price not less than the panel’s determination.

S1.28.7 If the landowner refuses to accept this offer within 6 months of the date of the Applicant’s offer, the Applicant's obligations to acquire the land shall cease, unless otherwise agreed by the Council.

S1.28.8 The Applicant shall bear the costs of any valuation or survey assessment requested by the independent valuer, panel, or the Council and the costs of determination referred above.
S1.28.9 If the Applicant and landowner agree that only part of the land shall be acquired, then the Applicant shall pay all reasonable costs associated with obtaining Council approval for any plan of subdivision, and registration of the plan at the Office of the Registrar-General.

DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE

S1.29.1 The Applicant shall comply with the General Terms of Approval issued by the Department of Environment and Climate Change as contained in Schedule 2 of these conditions.

HEALTH AND BUILDING CONDITIONS

S1.30.1 Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. The on-site sanitary facilities shall be available before the first inspection is carried out by Council.

Reason : Provide appropriate sanitary facilities for site workers.

S1.31.1 A separate application shall be lodged with Council for approval of any septic tank installation.
Reason : Council requires a separate application for a septic tank.

FURTHER DEVELOPMENT CONSENT REQUIRED

S1.32.1 Further development consent is required for the erection of amenities, office building and other proposed structures associated with the Project Site. The applicant shall submit all relevant forms, plans, specifications and fees and ensure that no work in relation to such structures is commenced until development consent and a construction certificate has been issued.

ROADS AND TRAFFIC AUTHORITY

S1.33.1 Subject to condition S1.38, quarrying work at the Project Site shall not commence operation until the following bridges are repaired, replaced or otherwise modified so as to have the structural capacity to support laden product trucks of a weight of 42.5 tonnes:

(a) Barsham Bridge;

(b) Scotts Bridge; and
(c) Timor Bridge.

S1.33.2 Notwithstanding the above condition, the applicant shall prepare a traffic management plan for the construction phase of the project. This plan must be prepared to Council’s requirements and should address the operation of the intersection of the New England Highway and Haydons Lane for vehicles engaged in construction or infrastructure work at the Project Site, before quarrying work commences.

DEPARTMENT OF INDUSTRY & INVESTMENT

S1.34.1 The applicant shall obtain and hold a valid mining lease and appropriate licence.

S1.34.2 The operator shall provide annual production data as requested by the Mineral Resources Division of the Department of Industry & Investment.

S1.34.3 The applicant shall ensure that appropriate measures are taken to exclude livestock from the Project Site.
Reason : To ensure compliance with the requirements of the Department of Industry & Investment.

S1.35.1 Prior to the commencement of any excavation work on the site, separate development consent is required to be issued for the subdivision of Lot 31 in DP 748766 to create a separate lot for the Project Site.
S1.35.2 Any mining lease granted by the Department of Industry and Investment, in response to mining lease application No. 315, must comply with section 62 of the Mining Act 1992, in relation to the minimum distance between the eastern boundary of the mining lease and any adjoining or adjacent dwelling houses, gardens and improvements.

S1.36.1 Except where permitted by the BMP (as referred to in condition S5.2(c) and S5.5), no grazing (whether of sheep, cattle or other introduced livestock) and no agricultural activities shall take place within the boundaries of the Project Site during the period in which the quarry is in operation or in which the rehabilitation of the Project Site is being undertaken.

S1.36.2 This condition does not apply to the stock passage route, being the area referred to in condition S5.5(b)(iv). However, the stock passage route must be fenced to prevent stock, while passing along the stock passage route, from entering the remainder of the Project Site.
S1.36.3 A restriction on the use of land within the Project Site and/or a public positive covenant (as nominated by the Council), shall be registered against the title to the new lot created for the Project Site, recording the restriction on grazing and agriculture referred to in condition S1.36.1.

S1.37.1 No excavation of limestone is to take place at or below the level of the lower chert band, and the applicant must take all measures required to ensure that the chert band is not penetrated by any excavation work within the Project Site.
S1.37.2 Prior to the commencement of any excavation work on the Project Site, the Lower Chert Band Management Plan shall be prepared by the Applicant and approved by the Council, as specified in conditions S1.2.2 and S1.2.3.

S1.38.1 No excavation work within the Project Site (other than excavation work required to provide road construction materials for the Council to upgrade bridges and/or roads to be utilised by vehicles travelling to and from the Project Site) shall commence until a heavy vehicle bypass is constructed at Starrs Crossing on the Timor-Crawney Road to enable the passage of vehicles of maximum gross weight limit 42.5 tonnes, to the satisfaction of the Council.

S1.38.2 Following the Council’s monthly inspection program for bridges / bypasses (or following a rainfall event exceeding 25mm in less than 24 hours), the quarry operator shall provide any road base materials as, when and where required for the maintenance of the heavy vehicle bypass at no cost to the Council.

S1.38.3 Notwithstanding the inspections referred to in S1.38.2, the quarry operator shall immediately report any deterioration in the standard or trafficable condition of the heavy vehicle bypass to the Council.

S1.38.4 The bridge known as Starrs Bridge, located on the Timor Crawney Road, is to be structurally repaired so as to permit the passage of vehicles of maximum gross weight limit 42.5 tonnes. The proponent shall make suitable arrangements with Council for a contribution of up to the value of $40,000 towards the cost of such repairs, within 12 months of commencement of haulage of product from the quarry. The Council shall undertake the necessary repairs within 18 months of commencement of haulage of product from the Project Site.

S1.39.1 (a) Drainage of concentrated water, being water concentrated in flow, from the excavation area and Stockpile and Handling Area, into the karst as a result of modified drainage must not occur; and
(b) Any water which has the potential to drain into the karst must be filtered, to the satisfaction of the Council, to avoid discharge of sediments and other contaminants into the karst.

S1.40.1 The stockpiling and handling area (SHA) shall be located in the area nominated on the Preferred Project Layout Plan and shall have an area not exceeding 0.35ha.
S1.40.2 Clean water flows upslope of the SHA shall be diverted around the SHA and all runoff from within the SHA shall be directed to the sediment retention basin such as through catch banks or drains.

S1.41.1 The Applicant shall survey the boundary of the extraction area, stockpiling and handling area and appropriately mark these areas prior to the commencement of any works in these areas.
SCHEDULE 2

DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE
GENERAL TERMS OF APPROVAL

A1. Information supplied to the EPA

A1.1 Except as expressly provided by these general terms of approval, works and activities must be carried out in accordance with the proposal contained in:
prepared by R.W.Corkery & Co Pty. Limited, dated November 2008.

LIMIT CONDITIONS
L1. Pollution of waters

L.1.1 Except as may be expressly provided by a licence under the Protection of the Environment Operations Act 1997 in relation of the development, section 120 of the Protection of the Environment Operations Act 1997 must be complied with in connection with the carrying out of the development.
L2 Operational Noise limits
L2.1 Noise from the premises must not exceed the sound pressure level (noise) limits presented in the Table below. Note the limits represent the sound pressure level (noise) contribution, at the nominated receiver locations in the table.
Operational Phase Noise Limits (dB(A))

Noise Assessment Location Daytime (7am to 6pm)

L_{Aeq(15 minute)}

Residence R2 “Caves Ridge” 35

1. Receiver locations identified in Figure 1 of the Proposed Timor Limestone Quarry, Noise and Vibration Assessment, Specialist Consultant Studies, Compendium, Part 6, prepared by Spectrum Acoustics (October 2008).

Definition:
L_Aeq is the equivalent continuous noise level – the level of noise equivalent to the energy- average of noise levels emitted by the premises over the stated measurement period.
L2.2 Noise from the premises is to be measured at the most affected point within the residential boundary, or at the most affected point within 30 metres of the dwelling where the dwelling is more than 30 metres from the boundary, to determine compliance with the noise level limits in Condition
L2.1 unless otherwise stated.
Where it can be demonstrated that direct measurement of noise from the premises is impractical, the DECC may accept alternative means of determining compliance. See Chapter 11 of the NSW Industrial Noise Policy.

L3. Hours of operation

All construction work and operation of plant and equipment (including use of trucks and/or loaders) at the premises must only be conducted between 0700 and 1700, Mondays to Fridays and 0700 to 1700 on Saturdays with no operations on Sundays and public holidays.

L4. Blasting

Overpressure
The overpressure level from blasting operations on the premises must not:

a) Exceed 115dB (Lin Peak) for more than 5% of the total number of blasts over a period of 12 months; and
b) Exceed 120dB (Lin Peak) at any time.

Ground vibration (ppv)
Ground vibration peak particle velocity from the blasting operations at the premises must not:

a) Exceed 5mm/s for more than 5% of the total number of blasts over a period of 12 months; and

b) Exceed 10mm/s at any time.
c)
when measured at any point within 1 metre of any affected residential boundary or other noise sensitive location such as a school or hospital.
L5. Waste
L5.1 The licensee must not cause, permit or allow any waste generated outside the premises to be received at the premises for storage, treatment, processing, reprocessing or disposal or any waste generated at the premises to be disposed of at the premises, except as expressly permitted by a licence under the Protection of the Environment Operations Act 1997.
This condition only applies to the storage, treatment, processing, reprocessing or disposal of waste at the premises if it requires an environment protection licence under the Protection of the Environment Operations Act 1997.

OPERATING CONDITIONS
O1. Dust

O1.1 The premises must be maintained in a condition that minimises or prevents the emission of dust from the premises.
Trucks entering and leaving the premises that are carrying loads of dust generating materials must have their loads covered at all times, except during loading and unloading.

O2. Stormwater/sediment control - Construction Phase

Soil and water management controls must be employed to minimise soil erosion and the discharge of sediment and other pollutants to lands and/or waters during construction activities in accordance with the requirements outlined in Managing Urban Stormwater: Soils and Construction (Landcom, 2004).

O3. Stormwater/sediment control - Operation Phase

O3.1 Following the construction phase, stormwater management measures must be implemented to mitigate the impacts of stormwater run-off from and within the premises in a manner that is consistent with the Stormwater Management Plan for the catchment. Where a Stormwater Management Plan has not yet been prepared the measures should be consistent with the guidance contained in Managing Urban Stormwater: Council Handbook (available from the DECC).
Monitoring
U1 Noise Compliance Monitoring
U1.1 A noise compliance assessment shall be undertaken within three months of commencement of operational activities at the premises. The assessment shall be prepared by a suitably qualified and experienced acoustical practitioner and shall assess compliance with noise limits presented in L2.1. A report detailing the monitoring undertaken, the monitoring results, an assessment of compliance and any recommendations must be provided to DECC's Regional Manager - Hunter within twenty eight (28) days of the survey being completed.

MANDATORY CONDITIONS FOR ALL EPA LICENCES
If an Environment Protection Licence is granted the following mandatory conditions will apply:
Administrative conditions
A2. Fit and Proper Person

A2.1 The Applicant must, in the opinion of the EPA, be a fit and proper person to hold a licence under the Protection of the Environment Operations Act 1997, having regard to the matters in s 83 of that Act.
If an Environment Protection Licence is granted the following mandatory conditions will apply:

Other activities

This licence applies to all activities carried on at the premises.

Operating Conditions

O1.1 Licensed activities must be carried out in a competent manner. This includes:

the processing, handling, movement and storage of materials and substances used to carry out the activity; and

the treatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity.
O2 Maintenance of Plant and Equipment

All plant and equipment installed at the premises or used in connection with the licenced activity:
must be maintained in a proper and efficient condition; and
must be operated in a proper and efficient manner.
Monitoring And Recording Conditions
R1 Reporting Conditions

The Applicant must provide an annual return to the EPA in relation to the development as required by any licence under the Protection of the Environment Operations Act 1997 in relation to the development. In the return the Applicant must report on the annual monitoring undertaken (where the activity results in pollutant discharges), provide a summary of complaints relating to the development, report on compliance with licence conditions and provide a calculation of licence fees (administrative fees and, where relevant, load based fees) that are payable. If load based fees apply to the activity the Applicant will be required to submit load-based fee calculation worksheets with the return.

M4 Recording of pollution complaints

M4.1 The licensee must keep a legible record of all complaints made to the licensee or any employee or agent of the licensee in relation to pollution arising from any activity to which this licence applies.
M4.2 The record must include details of the following:
the date and time of the complaint;
the method by which the complaint was made;
any personal details of the complainant which were provided by the complainant or, if no such details were provided, a note to that effect;
the nature of the complaint;
the action taken by the licensee in relation to the complaint, including any follow-up contact with the complainant; and
if no action was taken by the licensee, the reasons why no action was taken.
M4.3 The record of a complaint must be kept for at least 4 years after the complaint was made.
M4.4 The record must be produced to any authorised officer of the EPA who asks to see them.

M5 Telephone complaints line

M5.1 The licensee must operate during its operating hours a telephone complaints line for the purpose of receiving any complaints from members of the public in relation to activities conducted at the premises or by the vehicle or mobile plant, unless otherwise specified in the licence.
M5.2 The licensee must notify the public of the complaints line telephone number and the fact that it is a complaints line so that the impacted community knows how to make a complaint.
M5.3 This condition does not apply until 3 months after this condition takes effect.

REPORTING CONDITIONS
Annual Return documents
What documents must an Annual Return contain?
The licensee must complete and supply to the DECC an Annual Return in the approved form comprising:

(a) a Statement of Compliance; and
(b) a Monitoring and Complaints Summary.

Before the end of each reporting period, the DECC will provide to the licensee a copy of the form that must be completed and returned to the DECC.

Period covered by Annual Return
An Annual Return must be prepared in respect of each reporting, except as provided below
Note: The term “reporting period” is defined in the dictionary at the end of this licence. Do not complete the Annual Return until after the end of the reporting period.
Where this licence is transferred from the licensee to a new licensee:

(a) the transferring licensee must prepare an annual return for the period commencing on the first day of the reporting period and ending on the date the application for the transfer of the licence to the new licensee is granted; and
(b) the new licensee must prepare an annual return for the period commencing on the date the application for the transfer of the licence is granted and ending on the last day of the reporting period.

Training

S4.28 All employees at the quarry who from time to time perform the duties of the quarry manager or quarry duty manager shall receive training before commencing such duties, from one of the Nominated Experts listed in Appendix 1, to carry out the identification of caves that may be discovered during quarrying. The training concerned shall have as its objective the identification of caves, to allow the employee concerned to give directions concerning the cessation of work in accordance with condition S4.7 until expert assessment of the specimens or other materials is undertaken in accordance with this protocol.

Appendix 1 – Nominated Expert Panel

S4.29 The Nominated Expert Panel is a panel comprising five experts.

S4.30 Subject to S4.31, the Nominated Expert Panel must be appointed prior to extraction of any limestone occurring under this consent.

S4.31 If DECCW fails to appoint members of the Nominated Expert Panel in accordance with S4.33(c) or S4.33(d) prior to the date that is sixty (60) days before the forecast commencement of extraction of limestone pursuant to this Consent, then the Council may appoint such number of members of the nominated expert panel as is required to take the number of Panel members up to the minimum of 5.

S4.32 The Nominated Experts must, between them, include the following expertise:

(a) geology with expertise in caves and karst;

(b) geomorphology with expertise in caves and karst;

(c) hydrology with expertise in caves and karst;

(d) vertebrate palaeontology with expertise in caves and karst; and
(e) biology with expertise in cave biota and ecosystems.

S4.33 The initial members of the Nominated expert panel are to include:

(a) Dr Stephen Swabey (geomorphologist and hydrologist with expertise in caves and karst), subject to his consent to the appointment;

(b) Dr Armstong Osborne (geologist with expertise in caves and karst), subject to his consent to the appointment;

(c) Subject to the proposed appointments of Dr Swabey and Dr Osborne, three other experts selected by the Manager, Karst and Geodiversity Unit, DECCW, or its successor (“Manager, KGU”) or, if that unit ceases to exist, DECCW or its successor, in consultation with the quarry owner.

(d) If either Dr Swabey or Dr Osborne, or both of them, decline to accept the appointment then other members of the Panel may be appointed by the Manager, KGU or, if that unit ceases to exist, DECCW or its successor in consultation with the quarry owner.

(e) Any vacancy in the Nominated expert panel from time to time may be filled by an appointment made by the Manager, KGU (or, if that unit ceases to exist, DECCW or its successor) in consultation with the quarry owner and the other members of the Nominated Expert Panel.
(f) Upon appointment the members of the panel must provide their contact details to the quarry owner and must subsequently provide any changes in those details. The contact details shall include each member’s telephone and mobile numbers and e-mail address.

S4.34 The Nominated expert panel may meet face-to-face, by telephone conference or by such other electronic means as is approved by the Panel members from time to time. The quorum for any meeting of the Nominated Expert Panel shall be three (3 members).

S4.35 The members of the Nominated Expert Panel hold office until the member:

(a) gives written notice of his or her resignation to each of the quarry owner, the Council and the Manager, KGU of DECCW;

(b) dies;

(c) ceases to perform his or her duties under this Schedule, and fails to respond to any communications from the quarry owner for a period of two (2) months from the date on which the first communication is forwarded; or
(d) becomes a mentally incapacitated person.

S4.36 The members of the Nominated Expert Panel shall make all reasonable efforts to ensure that they undertake their responsibilities under this Protocol in a cost effective and efficient way, with the aim of ensuring that the Applicant does not incur unnecessary costs.

SCHEDULE 5
REQUIREMENTS FOR PLANNING,

ASSESSMENT AND PROJECT SITE MANAGEMENT
Mining Operations Plan
S5.1 Prior to the commencement of any works on the Project Site, the Applicant shall prepare a Mining Operations Plan which has been approved by the Director-General of the Department of Industry & Investment. The Mining Operations Plan must:

(a) be prepared in accordance with the latest Mining Operations Guidelines prepared by the Department of Industry & Investment;

(b) include detailed plans of any proposed surface construction works associated with the excavation Management Plans

S5.2 In addition to the Mining Operations Plan, the Applicant shall prepare the following management plans.

(a) Soil and Water Management Plan (SWMP), which has been prepared in consultation with the Council and, where required by law, with DECCW and with any other responsible regulatory authorities, to manage the environmental consequences of the approved operations on watercourses.

(b) Air Quality Management Plan (AQMP), which has been prepared in consultation with the Council and, where required by law, with DECCW and with any other responsible regulatory authorities, to manage the environmental consequences of the approved operations on air quality.

(c) Biodiversity Management Plan (BMP), which has been prepared in consultation with the Council and, where required by law, with DECCW and any other responsible statutory or regulatory authorities, to manage the potential environmental consequences of the approved operations on flora and fauna and to rehabilitate the endangered ecological community within the Project Site.

(d) Lower Chert Band Management Plan (LCBMP), which has been prepared in consultation with the Council and, where required by law, with DECCW and with any other responsible regulatory authorities to prevent penetration of the Lower Chert Band by quarrying at the Quarry Site.

S5.3 The SWMP shall include the following.

(a) An erosion and sediment control plan including:

(i) Identification of activities that could cause soil erosion or discharge of sediment or water pollutants from the Project Site;

(ii) A description of the locations, function and capacity of all erosion and sediment control structures;

(iii) A description of the measures to minimise soil erosion and the potential migration of sediments to downstream waters.

(b) A surface and groundwater monitoring program including:

(i) collection of baseline data on surface water flows and quality;

(ii) surface water and groundwater impact assessment criteria; and

(iii) a program to monitor the quantity and volume of water.

(c) A quarry drainage plan, specifying the drainage works to be undertaken for the quarry floor, work areas and access roads to minimise the risk of escape of contaminants into the Karst drainage system. The quarry pit must be designed to drain outwards and so as not to collect water.

S5.4 The AQMP shall:

(a) include details of the air quality management measures that will be implemented to control dust emissions;

(b) include a program to monitor deposited dust and, if required, suspended particulates; and

(c) address the matters specified in conditions S1.17 to S1.20 inclusive.

S5.5 BMP

(a) In this condition “Untracked Area” means the area of approximately 6 ha located in the south of the Project Site, being the land coloured green/blue in the plan prepared by Whelans InSites dated 6 May 2010 (annexed to this development consent and marked “B”).
(b) The BMP is to apply to the Project Site (which includes the Untracked Area), with the exception of the following areas (while quarrying is being undertaken on the Project Site:

(i) the Quarry Site;
(ii) the stockpiling and handling area, including the conveyor between this area and the extraction area;

(iii) the roads, parking areas, stockpiling area (adjacent to the Quarry Site ) and those parts of the Project Site on which drains and other infrastructure relating to the proposed quarry are constructed; and
(iv) a stock passage route 10m wide running parallel and adjacent to the eastern boundary of the Project Site, that will be established to allow the movement of livestock from the part of Lot 31 to the south of the Project Site to the part of Lot 31 to the north of the Project Site, provided that the stock passage route must not be used for the grazing of livestock and must be separated from the remainder of the Project Site by a permanent or temporary fence, which prevents livestock moving through the stock passage route from entering the remainder of the Project Site.

(c) The BMP shall be prepared by persons with appropriate qualifications or training and knowledge and experience in weed control and bush regeneration / rehabilitation practices and who are eligible for membership of the Australian Association of Bush Regenerators (AABR) or of another suitable ecological organisation. The BMP must be approved by the Council prior to the commencement of any works on the Project Site.
(d) The BMP must detail a strategy for the protection, rehabilitation, conservation and enhancement of all endangered ecological communities and all other natural and bushland areas within the Project Site (excluding the areas referred to in (b)(i)-(iii) above but only while quarrying works are being undertaken) and must provide for the implementation of that strategy during:

(i) the period of thirty (30) years (or such longer period as may be approved by the Council and by the responsible regulatory authorities) during which quarrying operations are conducted within the Project Site; and

(ii) within the further period during which rehabilitation of the Project Site is undertaken, either in accordance with the requirements of this development consent or in accordance with the requirements of the Department of Industry & Investment or any other responsible regulatory authority,

to achieve the objective that at the expiration of the periods referred to in (i) and (ii) the endangered ecological community within the Project Site will be self-sustaining and naturally regenerating.

(e) An AABR approved contractor is to be engaged for the purpose of weed control and rehabilitation works, and the contractor’s details must be supplied to Council prior to the commencement of weed control and/or rehabilitation work.
(f) The BMP is to incorporate the following:

(i) A prioritised weed management strategy with particular reference to creek line /riparian zones. This strategy is to include:

(1) a schedule of all noxious and environmental weeds on the site;
(2) specific control techniques to be employed, particularly where a high potential for weed succession, soil erosion and creek bank destabilisation exists;

(3) disposal of waste material; and

(4) a realistic timeframe for an appropriate level of weed control to be achieved.

(ii) Provision of clear and concise mapping of sensitive site features and their buffers, including Xanthorrhoea glauca subsp. angustifolia (grass trees).

(iii) Protection of the trees within the gullies on either side of the stockpiling and handling area and rehabilitation of vegetation affected by construction and infrastructure works undertaken to commence the operation of the quarry.

(iv) Protection and management of vegetation including Xanthorrhoea glauca subsp. angustifolia, including the provision of appropriate buffer areas.

(v) A time frame for any work to be undertaken to rehabilitate the vegetation within the Project Site, with a clearly defined program of works and readily measureable objectives for the program.

(vi) A propagation schedule of provenance plant material, to be used in areas of poor to nil resilience. Supplementary planting in these areas is only to be undertaken in accordance with the approved BMP. (Note: Natural regeneration within key areas is preferable to supplementary planting or landscape regeneration. Any areas on Project Site displaying spontaneous recovery/regeneration are to be protected and their complete recovery facilitated.)

(vii) Monitoring of the progress of the implementation of the BMP is to be undertaken and reported within the Annual Environmental Management Report, referred to in condition S5.2. Fixed and permanent photographic reference points are to be established prior to the commencement of the strategy. Pre-treatment photographs should be taken prior to commencement of the program. These photographs will serve as evidence of the work undertaken, and will allow Council to determine the success of the BMP. A photographic record of the areas undergoing weed control treatment and rehabilitation and/or revegetation should be maintained by the Applicant or by the contractor undertaking the work, and made available to Council upon request. Monitoring is to be undertaken at the intervals specified below and reports are to be provided within one month of each date:

(1) 1 month after commencement of quarrying;:

(2) 6 months after commencement of quarrying;

(3) 12 months after commencement of quarrying;

(4) thence on an annual basis over the life of the quarry operation.

(viii) Provision for controlled gazing within the Project Site, but only as a tool for appropriate management of vegetation cover, so as to facilitate germination of vegetation and establishment of desired native vegetation or to reduce bushfire hazard. The BMP shall specify the periods during which such grazing is permitted and the areas within which grazing will be permitted during those periods.

(ix) Provisions requiring that:

(1) No tracks be established within the Untracked Area;

(2) No tracks be established within the rest of the Project Site other than those necessary for quarrying operations in accordance with this Consent;

(3) Prior to the commencement of quarrying operations, all other tracks within the Project Site are to be removed and revegetated; and

(4) All tracks within the Project Site are to be revegetated and rehabilitated at the conclusion of quarrying operations, other than any tracks required for maintenance of the vegetation on the site.

(g) Prior to commencement of any work under this consent, the Applicant must either:

(i) enter into a conservation agreement under Div 12 of Pt 4 of the National Parks and Wildlife Act 1974 relating to the Project Site, recording the obligations assumed by the Applicant under this condition S4.5, and under any other relevant conditions of this consent and register that agreement pursuant to s69F of the National Parks and Wildlife Act 1974; or

(ii) cause to be registered against the title of the Project Site a public positive covenant and/or a restriction on the use of the land, in favour of the Council, requiring the Applicant to implement and observe the requirements of this condition S4.5, and any other relevant conditions of this consent,

and in either case to observe the restriction on grazing imposed by condition S4.5(viii) in perpetuity. The conservation agreement or the public positive covenant and/or restriction on the use of land, shall remain in force in perpetuity.

The LCBMP shall:

(a) identify the investigations to be undertaken before the quarry void reaches RL580m, to provide additional information on the position of the Lower Chert Band;
(b) provide for drill holes to be completed in two parallel lines along the line of the creek to the north of the proposed Quarry Site, with those holes to be completed to RL550m, being 10m below the proposed minimum RL of the quarry void. The drill hole positions should include a:

(i) northern line, duplicating and extending previous drill holes S2 and S3; and

(ii) southern line, duplicating and extending previous drill holes YRDDH and S4 and adding two drill holes to the east of S4 along the ridgeline. These drill holes should be:

(1) 10m east of the eastern boundary of the quarry footprint; and

(2) 150m east of the eastern boundary of the quarry footprint.

(c) include mapping of the surface extent of the Lower Chert Band by a qualified geomorphologist or geologist;

(d) include a 3D computer model of the position of the Lower Chert Band constructed using the information gained from (a) and (c); and

(e) with reference to the 3D computer model of the position of the Lower Chert Band, provide a design of the proposed quarry void such that, vertically, it is at least 5m above the upper margin of the modelled Lower Chert Band.

The Applicant shall ensure that the management plans required under this development consent are prepared in accordance with any relevant guidelines, and include:
(a) detailed baseline data;

(b) a description of:

(i) the relevant statutory requirements (including any relevant approval, licence or lease conditions);

(ii) any relevant limits or performance measures/criteria; and

(iii) the specific performance indicators that are proposed to be used to judge the performance of, or guide the implementation of, the project or any management measures;

(c) a description of the measures that will be implemented to comply with the relevant statutory requirements, limits or performance measures/criteria;

(d) a program to monitor and report on the:

(i) impacts and environmental performance of the project;

(ii) effectiveness of any management measures (see (c) above),

(e) a contingency plan to manage any unpredicted impacts and their consequences;

(f) a program to investigate and implement ways to improve the environmental performance of the project over time; and

(g) a protocol for periodic review of the plan concerned, including but not limited to a summary of the conclusions / recommendations of the review of each plan in the Annual Environmental Management Report (AEMR) as referred to in Schedule 6.

SCHEDULE 6
ENVIRONMENTAL MANAGEMENT,

REPORTING AND AUDITING

The Applicant shall prepare and implement an Environmental Management Strategy (EMS) for the quarry operations to the satisfaction of Council. The Strategy must:

(a) be submitted to the Council for approval prior to the commencement of excavation work on the Project Site;
(b) provide the strategic framework for environmental management of quarrying work at the Project Site;

(c) identify the statutory approvals that apply to quarrying work at the Project Site;

(d) describe the role, responsibility, authority and accountability of all key personnel involved in the environmental management of the project;

(e) describe the procedures that will be implemented to:

(i) keep the local community and relevant agencies informed about the operation and environmental performance of the development;

(ii) receive, handle, respond to, and record complaints;

(iii) resolve any disputes that may arise during the course of the development;

(iv) respond to any non-compliance; and

(v) respond to emergencies,

(f) include:

(i) copies of the various strategies, plans and programs that are required under the conditions of this development consent once they have been approved; and

(ii) a clear plan describing all the monitoring required to be carried out within the Project Site.

S6.2 Annual Environmental Management Report

At the end of each 12 month period calculated from the commencement of quarrying on the Project Site, the Applicant shall submit an AEMR to the relevant government agencies and to the satisfaction of the Council. This report must:
(a) identify the standards and performance measures that apply to the development;

(b) include a summary of the complaints received during the past year, and compare this to the complaints received in the previous 5 years;

(c) include a summary of the monitoring results on the development during the past year;

(d) include a comprehensive review of these monitoring results against the relevant:

(i) limits/criteria in this consent;

(ii) monitoring results from previous years; and

(iii) relevant predictions in the EIS and Specialist Consultant Studies Compendium;

(e) identify any trends in the monitoring results over the life of the development;

(f) identify and discuss any non-compliance during the previous year; and describe what actions were, or are being, taken to ensure compliance. These actions may include proposed amendments of management plans, to be proposed, approved and implemented as specified in conditions S1.2.4, S1.2.5 and S1.2.6.

(g) describe the works that were carried out in the past year, and the works that are proposed to be carried out over the next year; and

(h) describe what measure will be implemented over the next year to improve the environmental performance of the approved operations; and

(i) include the data, findings and recommendations referred to in conditions S1.12.11 and S1.12.12, and confirm the action taken by the quarry owner to implement those recommendations, as required by condition S1.12.15.

Notwithstanding the above requirements for an AMER, the Applicant shall notify Council and the EPA immediately following any observed environmental exceedence. Details of the circumstances of the exceedence and any measures adopted to rectify/suspend operations are to be provided with the notification (refer also to Condition S6.6).

Reason: To ensure the there is adequate reporting of the quarry operations

At the completion of the site establishment and construction stage and prior to the commencement of product transportation, an inspection shall be undertaken by Council officers to ensure compliance with conditions relevant to the site establishment and construction phase.
Note: Inspection fees will apply to the development in accordance with Council’s Management Plan.

Reason: To ensure the all works and site facilities are in place to a standard acceptable to the Council.

The Consent authority may carry out inspections at any time as deemed necessary.
Note: Inspection fees will apply to the development in accordance with Council’s Management Plan.

Reason: To investigate any matters relating to the operation of the quarry.

(a) The Applicant shall participate in a Community Consultative Committee (CCC) for the development, which will be established in accordance with a Charter adopted by Council.
(b) The Applicant shall, at its own expense:

(i) ensure that an appropriate representative(s) attends the Committee’s meetings;

(ii) provide the Committee with regular information on the environmental performance and management of the development (such as through the AEMR);

(iii) arrange site inspections for the Committee, if necessary; and

(iv) respond to any advice or recommendations the Committee may have in relation to the environmental management or performance of the quarry.

Reason : To provide the community with an opportunity to raise concerns or issues related to the on-going operation of the quarry.

The Applicant shall notify the Council and any other relevant agencies of any incident associated with the development as soon as practicable after the Applicant becomes aware of the incident. Within 7 working days of the incident, the Applicant shall provide the Council and any relevant agencies with a detailed report on the incident concerned.

(a) Within two years from the date the consent becomes effective, and every five years thereafter, unless the Council directs otherwise, the Applicant shall commission and pay the full cost of an Independent Environmental Audit of the development.
(b) This audit must:

(i) be conducted by a suitably qualified, experienced, and independent person whose appointment has been endorsed by the Council;

(ii) be consistent with ISO 19011:2002 – Guidelines for Quality and/or Environmental Systems Auditing, or equivalent updated versions of these guidelines;

(iii) assess the environmental performance of the development, and its effects on the surrounding environment;

(iv) review the adequacy of strategies, plans or programs required under this development consent and under the approvals referred to in (iii);

(v) assess whether the development is complying with the relevant standards, performance measures, and statutory requirements;

(vi) review the adequacy of the Applicant’s environmental management measures; and if necessary, recommend measures or actions to improve the environmental performance of the development.

(c) The Applicant shall notify the Council of the date of commissioning each audit. Within 3 months of the commissioning the Applicant shall submit a copy of the audit report to the Council, with a response to any of the recommendations contained in the audit report.

Reason: To ensure the quarry is complying with relevant standards, performance measures and statutory requirements.

Within three (3) months of the submission of an:
(a) audit under condition S6.7;

(b) incident report under condition S6.6; and

(c) Annual Environmental Management Report under condition S6.2,

the Applicant shall review, and if necessary amend, the strategies, plans and programs required under this development consent to the satisfaction of the Council. The Council is to approve any such amendment, to the extent that such an amendment is permitted under the terms of this consent.

No later than the expiration of 6 months from the date on which quarrying work commences at the Project Site, the Applicant shall make the following information publicly available on its website:
(a) a copy of all current statutory approvals;

(b) a copy of the current Environmental Management Strategy and associated plans and programs;

(c) a summary of the monitoring results of the project, which have been reported in accordance with the various plans and programs approved under the conditions of this development consent;

(d) a complaints register, which is to be updated on a monthly basis;

(e) a copy of the minutes of any community consultative committee (or equivalent body) established by the Applicant and the Council in accordance with this development consent;

(f) a copy of all annual reviews, as those reviews are undertaken;

(g) a copy of any independent environmental audit, and the Applicant’s response to the recommendations in any such audit, after each audit is carried out and after the Applicant’s response is completed; and

(h) any other matter required by the Council or by any other regulatory authority with jurisdiction in relation to the development.

Schedule 7

Landscape Management and Rehabilitation

Landscape Management Plan

S7.1 The Applicant shall prepare and implement a detailed Landscape Management Plan for the Project Site to the satisfaction of Council. This shall:

(a) be prepared in consultation with Council and the Department of Industry & Investment;
(b) be submitted to Council for approval prior to commencement of operations on Project Site;

(c) incorporate:

(i) the Biodiversity Management Plan (See Condition S5.2(c) and S5.5);

(ii) a Vegetation Clearing Plan;

(iii) a Rehabilitation Management Plan; and

(iv) a Mine Closure Plan.

Vegetation Clearing Plan

S7.2 The vegetation clearing plan shall include the following.

(a) Clear delineation of disturbance areas and restriction of clearing to the minimum area necessary to undertake the approved activities.
(b) A methodology for recording the approximate size and number of hollow bearing trees to be removed and their replacement with the same number of nesting boxes of appropriate sizing within similar vegetation within the Project Site. The nesting box design chosen must reflect the size of hollows removed with microbat nesting boxes used to replace small hollows and Squirrel Glider nesting boxes to replace medium size hollows.

(c) Observation of hollowing bearing trees by an appropriately trained or qualified person to determine if hollow dependent fauna are present. Hollow bearing trees in use must be marked and surrounding vegetation cleared several days prior to the removal of the hollow bearing trees to promote vacation of the trees.

(d) Provision for a suitably trained or qualified person to be present during the felling of identified hollow bearing trees to provide assistance with the care of any injured fauna.

(e) Provision for the checking of any animals found and recording of the species, number, condition (age class, pregnant or lactating females etc) and for details to be provided to the National Parks and Wildlife Service and Council within 3 months of the clearing event.

(f) A methodology for recording the number of White Box (Eucalyptus albens), Yellow Box (Eucalyptus melliodora) and Bundy (Eucalyptus nortonii) trees removed and replacement with five seedlings raised from local White Box, Yellow Box and Bundy stock and planted within similar vegetation within the Project Site.

(g) Provision for the annual inspection of the nesting boxes and health of the planted White Box, Yellow Box and Bundy seedlings for the first 5 years of operation. An inspection report shall be prepared and include a review of the condition and use of the nesting boxes. Any planted White Box, Yellow Box or Bundy trees that are found to have died are to be replaced with any actions taken to help ensure the new plantings have a better chance of becoming established.

S7.3 The Rehabilitation Management Plan must include:

(a) the rehabilitation objectives for the Project Site;
(b) an outline of how the Quarry Site would be rehabilitated so as to integrate with the surrounding landform and does not contain any slopes or vertical headwalls that do not conform with the then current industry practice and standards;

(c) a description of how flora and habitat values will be improved or enhanced;

(d) a general description of the short, medium and long term measures that would be implemented to rehabilitate the Project Site;

(e) a detailed description of the measures that would be implemented within the proposed areas of disturbance for:

(i) conserving and reusing topsoil, and obtaining soil depth similar to that naturally occurring on and surrounding the disturbed areas of the Project Site;

(ii) establishing biologically active topsoil by introduction of native early colonising species of naturally occurring limestone soils prior to re-establishing existing vegetation communities;

(iii) protecting any areas displaying spontaneous recovery/regeneration of vegetation and facilitating that recovery and regeneration;

(iv) revegetation with native tree, shrub and grass species comparable with the existing vegetation communities in the area;

(v) methods of seeding (prepared by a restoration ecologist) which ensure that local native provenance plants will be able to be re-established on the constructed slopes;

(vi) salvaging and reusing material from the Project Site for habitat enhancement; and

(vii) controlling weeds and feral pests.

Note: the collection of seeds from an Endangered Ecological Community requires licencing under Section 91 of the Threatened Species Conservation Act 1995.

(viii) performance and completion criteria for the rehabilitation of the site; and

(ix) a description of how the performance of the rehabilitation works would be monitored over time to achieve the stated objectives and against the relevant performance and completion criteria.

Mine Closure Plan

S7.4 The Mine Closure Plan shall:

(a) define the objectives and criteria for mine closure;
(b) outline options for the future use of the Project Site;

(c) describe the measures that would be implemented to minimise or manage the on-going environmental effects of the project; and

(d) describe how the performance of these measures would be monitored over time.

S7.5 The Applicant shall establish a rehabilitation security deposit or bond with the Department of Industry & Investment under the Mining Act 1992 prior to commencing quarrying work on the Project Site.

Species to be Used in Short-term Soil Stabilisation

S7.6 Where short-term soil stabilisation utilising groundcover species is required, the Applicant shall use the appropriate groundcover species as outlined within Table 1.

Table 1 : Species for Stabilisation

Endemic Perennial
Species

Other Native
Perennial Species

Non-native Annual / Nonpersistent Species
(growth period)

Lomandra longifolia

Chloris truncata

Japanese Millet (Spring/Summer)

Aristida personata

Elymus scaber

Ryecorn/Oats (Autumn/Winter)

Aristida vagans

Microlaena stipoides

Serradella (Aug to Jan)

Bothriochloa macra

Sorghum leiocladum

White Clover (perennial)

Chloris ventricosa

Themeda australis

Haresfoot Clover (perennial)

Cymbopogon refractus

Couch (perennial)

Dichanthium sericeum

Panicum effusum

Source: RW Corkery & Co (Feb 2009) Response to DECC Submission (Table A)
Reason: To ensure that the species that are used in stabilisation do not remain in the environment to persist as weeds.

S7.7 If necessary, ‘soft engineering practices, such as installation of jute mesh or other soil stabilisation methods, shall be utilised on steeper slopes and near drainage lines to reduce potential surface water pollution.

Reason : To ensure appropriate measures are taken to stabilise soils and to avoid introduction of persistent weed species.

CITATION:	Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited (No 2) [2010] NSWLEC 104
PARTIES:	APPLICANT Newcastle & Hunter Valley Speleological Society Inc FIRST DEFENDANT Upper Hunter Shire Council SECOND DEFENDANT 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 - conditions of consent
CASES CITED:	Gerroa Environment Protection Society Inc v Minister for Planning and Cleary Bros (Bombo) Pty Ltd (No 2) [2008] NSWLEC 254 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council and Stoneco Pty Limited [2010] NSWLEC 48 Sanctuary Investments Pty Ltd v Baulkham Hills Shire Council [2006] NSWLEC 733; (2006) 153 LGERA 355
DATES OF HEARING:	28 May 2010, 31 May 2010, 18 June 2010, 23 June 2010
DATE OF JUDGMENT:	23 June 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

COURT DETAILS
Court	Land and Environment Court of New South Wales
Class	1
Case number	10497 of 2009
TITLE OF PROCEEDINGS
Applicant	Newcastle & Hunter Valley Speleological Society Inc.
1^st Respondent	Upper Hunter Shire Council
2^nd Respondent	Stoneco Pty Ltd

Parameter	Unit	100% Concentration Limit
Total Suspended Solids	mg/L	50
Electrical Conductivity	µS/cm	1500
Biochemical Oxygen Demand	mg/L	20
pH	-	6.5-8.5

Identification	Type of monitoring point	Description of location
R1	Ambient air monitoring	Lot 1 DP 590486
R2	Ambient air monitoring	Lot 214 DP 44391
Q1	Ambient air monitoring	The Project Site

Units of measure	Averaging Period	Sample frequency	Sample Method
Deposited dust *	g/m ² /month	Month	continuous	NSW DECC AM-19 and AM-1
PM10	µg/m ³	24 hour	Special frequency 1.	NSW DECC AM-18 and AM-1

Pollutant	Units of measure	Concentration limit
PM ₁₀	µg/m ³	50*

Residence	Averaging Period	Maximum increase in deposited dust level	Maximum total deposited dust level
R1 (Lot 1 DP 590486)	Month	2 g/m ² /month	4 g/m ² /month
R2 (Lot 214 DP 44391)	Month	2 g/m ² /month	4 g/m ² /month

Noise Assessment Location	Daytime (7am to 6pm)
Noise Assessment Location	L_{Aeq(15 minute)}
Residence R2 “Caves Ridge”	35

Endemic Perennial Species	Other Native Perennial Species	Non-native Annual / Nonpersistent Species (growth period)
Lomandra longifolia	Chloris truncata	Japanese Millet (Spring/Summer)
Aristida personata	Elymus scaber	Ryecorn/Oats (Autumn/Winter)
Aristida vagans	Microlaena stipoides	Serradella (Aug to Jan)
Bothriochloa macra	Sorghum leiocladum	White Clover (perennial)
Chloris ventricosa	Themeda australis	Haresfoot Clover (perennial)
Cymbopogon refractus	Couch (perennial)
Dichanthium sericeum
Panicum effusum