Oshlack v Iron Gates Pty Limited & Anor
[1996] NSWLEC 89
•4 July 1997
Land and Environment Court of New South Wales
| Record of hearing |
JudgePearlman J
Number40152 of 1996
PartiesApplicant Al Oshlack
First Respondent Iron Gates Pty Limited
Second Respondent Richmond River Shire Council
Key issues• Environmental protection - remediation - removal of roads and drains - harm to wetland and littoral rainforest - water table - endangered species - source of fill material
Statutes• Environmental Planning and Assessment Act 1979 ss 76(2), 124
Hearing dates 19, 20, 21, 22 May 1997
6 June 1997
JudgmentReserved
Date of judgment 4 July 1997
Appearances Applicant Mr P W Larkin, Barrister
First Respondent Mr P R Rigg, Solicitor
Second Respondent Mr C W McEwen, Barrister
SolicitorsApplicant Environmental Defender’s Office
First Respondent Deacons Graham & James
Second Respondent Hannigans
Number of pages 16
Summary of orders
Orders for remediation of the land
IN THE LAND AND 40152 of 1996
ENVIRONMENT COURT Pearlman J
OF NEW SOUTH WALES 4 July 1997
AL OSHLACK
Applicant
v
IRON GATES PTY LIMITED
First Respondent
RICHMOND RIVER SHIRE COUNCIL
Second Respondent
JUDGMENT
Introduction
The issue for determination at the present time in these proceedings is what if any mandatory orders should be made for remediation and reinstatement of certain land at Evans Head which is the subject of these proceedings.
On 6 March 1997, Stein J declared that the first respondent, Iron Gates Pty Ltd (the developer) had carried out earthworms and clearing of vegetation upon that land in breach of s 76(2) of the Environmental Planning and Assessment Act 1979 (the EP&A Act), had breached certain conditions of a development consent granted by the second respondent for the subdivision of that land, and had caused damage to the habitat of a threatened species in breach of s 118D of the National Parks and Wildlife Act 1974.
The land in question is known as Portions 276 and 277, Parish of Riley, in Deposited Plan 755624 (the site).
His Honour made certain consequential orders. However, in the absence of any particular evidence about the possibility that remediation might cause further damage to the environment and threatened species and because of the necessity that any such remedial orders should provide clarity and certainty as to what was required to be undertaken, his Honour deferred any questions of mandatory orders for remediation and reinstatement to a further hearing date (see p 31 of his Honour’s judgment, unreported).
The issues
The Court is empowered under s 124 of the EP&A Act to make such orders as it thinks fit to remedy or restrain any breach of that Act, and, in particular, it is provided in s 124(2)(c) that, where the breach of the Act has effect of altering the condition or state of any land, the orders may require “... the reinstatement, so far as is practicable, of that ... land to the condition or state the ... land was in immediately before the breach was committed”.
It is settled that the Court has a wide discretion under s 124 (Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 at 338) and there was no issue between the parties that remediation was required. Indeed, there was considerable concordance between the proposals of the applicant and the developer so far as concerns the general revegetation of the site. However, the parties were at issue on the following matters:
the proper approach to the question of remediation, that is, should the Court formulate orders requiring so far as practicable the reinstatement of the site to its former undeveloped condition, or should orders for remediation have regard to the possibility of the future subdivision of the site and development for residential purposes;
the drains: should orders for remediation require the removal of the drains; and
the roads: should orders for remediation require the removal of the internal roads.
The proper approach
Mr Rigg, for the developer, submitted that, in formulating orders for remediation, the Court should have regard to the current zoning of the site, the uses to which it may be put and the development which has been approved. Specifically, Mr Rigg said the Court should be guided by the following matters:
Development of the site for the purpose of dwelling houses is now permissible without consent, pursuant to an amendment to the zoning which came into force on 2 May 1997, when the Richmond River Local Environmental Plan 1992 (the LEP) was amended;
The carrying out of development for the purpose of construction of roads is also permissible without consent, as provided in cl 35 and sch 1 para 8 of the Environmental Planning and Assessment Model Provisions 1980 which are incorporated into the LEP;
The site falls within zone 2(v) Village Zone under the LEP, the objectives of which incorporate an urban character to the site, by providing that the essential character of rural and coastal villages should be retained, and provision should be made for a full range of village activities compatible with the character and amenity of the village;
Development approval for the subdivision of the site was granted subject to conditions on 16 March 1993, and a challenge to its validity failed (Oshlack v Richmond River Shire Council and Anor (1993) 82 LGERA 222).
According to Mr Rigg, all these matters are relevant when the Court is considering “reinstatement, so far as is practicable” under s 124(2)(c). In his submission as I understood it, the Court would not necessarily seek to achieve, by its orders, a restoration of the site to its original condition, and would not order the removal of structures which had been placed on the site unless there was evidence of environmental harm in those structures remaining in place.
This is not the correct approach. It assumes that works carried out on the site, such as the construction of drains and internal roads, will or might be the subject of future development, and thus it would be impractical to order their removal now. This is factually incorrect. There is currently no approved development which can be carried out on the site. First, whilst council consent is not required for development of the site for the purpose of dwellings or roads, environmental assessment of that development is required under pt 5 of the EP&A Act (Herring Daw & Blake NSW Pty Ltd v Gosford City Council (1995) 87 LGERA 220). Secondly, Stein J found (at pp 30 - 31) that the manner in which the development has been undertaken so far has made it impossible for the development to be completed as the development consent envisaged, and that has had the effect of rendering the development consent nugatory.
For these reasons, I have not derived much assistance from the evidence of Mr M G Boldy, who is the divisional manager of environmental development services for the council. His evidence was given on the basis of remediation proposals which would facilitate conditions imposed on the development consent. This ignores the finding of Stein J that the development contemplated by the development consent cannot now be carried out.
I should also make it perfectly plain that the Court is not revisiting any of the findings of Stein J nor any of the orders which his Honour made. The Court is simply attending to the question of mandatory remediation orders which were deferred for further hearing.
Accordingly, the correct approach is to be found in the plain words of s 124(2)(c) - that is, the Court should make orders designed to bring about reinstatement, so far as is practicable, of the site to its condition before the breach was committed. That approach requires the Court to assess the possible environmental consequences of requiring the drains and internal roads to be removed as against the environmental consequences of allowing them to remain in place. It is precisely this matter, that is, the potential effect of removal of drainage structures and other works in any rehabilitative scheme, that concerned Stein J (at p 31).
Furthermore, the finding by Stein J that the development consent has been rendered nugatory makes it irrelevant to take into account, if it be the fact, that the developer’s remediation plan is entirely consistent with that development consent, or that the internal roads have been constructed consistently with that development consent since the date of the judgment of Stein J.
Drains
There are two drains in question, one on the eastern part of the site, and one on the western part of the site. Both these drains were constructed to convey stormwater from the site to the Evans River, although, currently, their entrance to the Evans River is blocked. They are each very large drains - they are approximately 14.5m wide and approximately 2m deep. The eastern drain is approximately 317m long, the western drain approximately 270m long.
The eastern drain
The eastern drain is adjacent to wetlands to which State Environmental Planning Policy 14 applies (the wetlands). The question is whether the eastern drain has a significant environmental effect on the wetlands.
Professor M D Fox, who is a plant ecologist, gave evidence for the applicant. Her opinion was that eastern drain would have the effect of draining or lowering the water table on the wetlands. She said that there are natural zones of vegetation in wetlands that relate to very slight differences in elevation above the water table. Consequently, she said, lowering of the water table would diminish the area of wetlands. Species would die and be replaced by species which could tolerate dry conditions.
Professor Fox’s evidence in this respect was corroborated by Mr R F McCotter, a civil and environmental engineer, who gave evidence for the applicant. Mr McCotter stated that the eastern drain would impact adversely on the wetlands by draining off surface water, by drawing down the water table beneath the wetlands, by reducing the recharge of the wetlands due to interruption of the previous natural flow, and by the possibility that acid sulfates would be leached out because water logged soils would dry out.
Dr P Shaw is a geotechnical engineer with Coffey Partners International, and he gave evidence for the developer. He calculated that in a worst case scenario (120 days without recharge), the maximum drawdown on the wetlands would not be greater than 400mm. Monitoring of test boreholes to the east of the drain showed fluctuation in the watertable by up to 790mm. He concluded that there would be no observable impact on the wetlands during periods of average or slightly below average rainfall. He acknowledged, in a report of Coffey Partners International dated 25 November 1996, prepared under his direction (the Coffey Partners Report), that the eastern drain will have an impact on the wetlands, that is, the water table would be lowered. However that impact would not be observable given the normal fluctuation in the water table of 790mm.
This conclusion is in contrast to the opinion of Professor Fox whose evidence was to the effect that even small variations in the water table of the wetlands would have an effect on wetland species, which would be an observable effect. I place considerable weight on her evidence, because she is a plant ecologist.
I addition, I note the following evidence, which casts doubt on Dr Shaw’s conclusion:
his calculations were based on the eastern drain being located about 50m from the wetlands at their northern end and more than 100m from the wetlands at their southern end. However, the sketches and plans prepared by Walker & Newton, consulting surveyors, which were in evidence, showed that the eastern drain is considerably closer to the wetlands;
Dr Shaw conceded, in cross-examination, that a period of 120 days without recharge is more likely to represent an average condition rather than a worst case scenario, a matter which was confirmed by the Coffey Partners report.
The evidence of Mr McCotter establishes the hydrological effect of the eastern drain on the wetlands, and Dr Shaw’s evidence does not seriously challenge that effect. Professor Fox’s evidence in turn establishes the impact this hydrological effect will have on the plant ecology of the wetlands. I find, therefore, that the eastern drain, if left in place, will have a significant environmental impact on the wetlands.
The western drain
The western drain is adjacent to a littoral rainforest.
No hydrological tests or studies have been carried out on the western drain, but Mr McCotter was of the opinion that it is likely to result in a drawdown of the water table beneath the littoral rainforest. Moreover, he observed the exposure of “coffee rock” in the western drain, and considered that it was likely (although not certain in the absence of further investigation) that the “coffee rock” forms a perched water table beneath the littoral rainforest, which the drain has punctured.
Mr R J Hunter is a botanist employed by the National Parks and Wildlife Service as a rainforest ecologist. He gave evidence of the extreme fragility of the littoral rainforest and its susceptibility to environmental changes including drawdown of the water table and desiccating effects of exposure to wind and sea spray. He proffered the opinion that the littoral rainforest should be protected by a buffer of a minimum width of 50m, and accordingly recommended that the western drain be filled, as it is at least partly located where such a buffer should be.
Mr Hunter’s views were supported by Mr D R Milledge, who is a wildlife ecologist. His opinion was that a 50m buffer was required to protect the roosting habitat of two threatened species of bat, and that the western drain was likely to lower the water table under the littoral rainforest, with the likely result of the eventual conversion of the plant community to dry open forest and woodland.
Dr Shaw reported on investigations which showed an undulating hard surface (which may or may not be “coffee rock”) beneath the eastern portion of the littoral rainforest and immediately to the west of the western drain. He considered that the general slope of the hard surface was away from the western drain to the west, and accordingly, this was likely to form a barrier to the flow of groundwater to the east, thus serving to maintain the water table beneath the littoral rainforest. He stated that the barrier formed by the rock would reduce the impact of the drain, but did not state that it would negate its impact.
In giving oral evidence, Mr McCotter said that it was difficult to determine the slope of the “coffee rock”, and that it would be simplistic to suggest that “coffee rock” would act as a barrier or basin. His evidence was that the impact and extent of the “coffee rock” was simply not known.
In accordance with this evidence, I find that the western drain is likely to have a significant environmental effect on the littoral rainforest and on wildlife species which inhabit it.
Remediation
It follows from my findings about the eastern and western drains that both of them should be remediated. In her oral evidence, Professor Fox stated that the ecological integrity of the site required the filling of the drains rather than leaving them in place and revegetating them. Her evidence in this respect was unchallenged. Mr P G Parker, who is an environmental consultant and who gave ecological evidence for the developer, prepared his report on instructions that the drains and internal roads should remain in place and accordingly he did not consider the question of whether they ought instead to be removed.
This raises the question of the source of material to fill the drains. The evidence of Professor Fox was that, rather than import fill material from outside the site, it is preferable to fill the drains with the material extracted from them in their construction.
According to the evidence of Mr L I Walker, a registered surveyor, an amount of 12796 cubic metres of soil was removed to create the drains. Of that amount, about 1000 cubic metres was retained, mixed with other soil, and spread on the site. The balance was used as subgrade material for the access road to the site.
There is now approximately 3800 cubic metres of material on the site, which would be available to fill the drains. That leaves a shortfall of about 9000 cubic metres.
In the developer’s submission, none of the original material is available as fill material for remediation of the drains. In the first place, utilisation of 3800 cubic metres of material spread over the site and which contains considerable topsoil, would deplete the site of topsoil and impede revegetation. Secondly, and more significantly, the shortfall between that amount and the material removed from the drain, 9000 cubic metres, is no longer available. That follows from the fact that no orders requiring remediation of the access road have yet been made, and, until such orders are made, the access road remains in place.
The access road is noted by Stein J in his judgment (at p 3) as being a road one kilometre long connecting the site to Evans Head to the east. That road has been the subject of separate proceedings in this Court (Wilson v Iron Gates Pty Ltd and Ors No 40172 of 1996) and the application for orders requiring remediation of that road is currently pending.
There are risks involved in importing fill from elsewhere. Professor Fox alluded to these risks in giving oral evidence. She said that material from outside the site would have different characteristics, and one of the ecological consequences that may result from introducing material to the site may be the introduction of fungal pathogens and other biological contaminants. She did not, however, go so far as to say that importation of fill should absolutely be prohibited.
There is a balance to be found here. On the one hand, there are environmental consequences in the drains remaining in place. On the other hand, there are uncertainties about the source of material to fill them. In my opinion, however, those uncertainties should not rule out an order requiring the drains to be filled. The original material may become available for that purpose, but if it does not become available, then fill can be imported for the purpose, with steps being taken to minimise its attendant risks.
Internal Roads
In Mr McCotter’s opinion, leaving the internal roads in place is likely to have the following adverse effects:
it would result in a permanent modification to the surface and ground water hydrology of the site; sealed areas would restrict ground water recharge and lead to greater surface runoff into the Evans River;
it would mean that the site could not be restored to its original topography, but restoration of the site to that topography is preferable so as to maximise opportunities for native flora and fauna; and
it would result in edge effects, such as the spread of weeds and rubbish dumping from the availability of access to the site.
Professor Fox’s opinion was similar. She was concerned that the roads would enhance the growth of weeds from run-off and nutrient enrichment, which would result from weathering of the asphalt surface, and also from providing access to people who are likely to dump garden refuse.
Mr Milledge supported this evidence, stating that it will be important to remove all nutrient material such as bitumen from the site in order to minimise weed invasion and enhance revegetation.
The developer did not contend that these effects are not likely to occur. Mr Rigg did submit that removal of the internal roads would also require the provision of fill material, but, according to the calculations of Mr Walker, only 440 cubic metres would be required for that purpose.
I conclude that there is ongoing environmental harm arising from the internal roads, and that they should be removed.
Acid Sulfate Soils
There is no evidence that there are acid sulfate soils on the site. Water testing carried out by both Merike Johnson and the Centre for Coastal Management in August 1996 on the drains at the site indicated high acidity, but it was not established that this was attributable to the presence or exposure of acid sulfate soils.
Mr Parker said that if acid sulfate soils were to occur on the site, it is unlikely that the natural regeneration of vegetation which he observed along the banks of the drains would have occurred.
Nonetheless, both Mr Parker and Professor Fox recommended that soils be tested for acid sulfate prior to revegetation, and remediated, if that were necessary, and accordingly I propose to incorporate that recommendation into the final orders.
Hardship
There is no doubt that an order to fill the drains and remove the internal roads will involve a financial cost to the developer which will be greater than merely remediating the site by re-vegetation either in accordance with the proposals of the applicant, via Professor Fox, or of the developer, via Mr Parker.
Evidence as to that cost was given by Mr G D Spence, who has some experience in construction cost estimates. I accept that there will be a substantial cost in removing the drains and internal roads, but I place no weight on Mr Spence’s actual figures, because they were based on an assumption that all piping underneath the surface of the site was required to be removed, and that is not a part of the remediation orders to be made in this case.
Mr G A Ingles, who is the major shareholder of the developer and controls its operations, gave evidence about the financial affairs of the developer, the group of companies of which it is part, and himself. That evidence demonstrated that it would be financially difficult for the developer to carry out remediation which required the removal of the drains and internal roads as well as revegetation of the site, but there was no conclusive evidence that the developer would be unable to meet the cost. Funding may need to be obtained from borrowings or rearrangement of assets within the group of companies, but there was no evidence which would warrant refusing to make the remediation orders.
The remediation orders
Each party furnished short minutes of orders which reflect the respective positions which each adopt. I propose to frame orders generally in accordance with the short minutes submitted by the applicant, but subject to the comments and variations which I deal with below.
Remediation Plan
I prefer to adopt the remediation plan suggested by the applicant, because the plan prepared for the developer by Mr Parker was prepared on instructions that the drains and internal roads should remain in place. Hence, so far as Professor Fox and Mr Parker are at issue, for example, in relation to seed collection or hydro-mulching, I accept Professor Fox’s proposals. However, in the light of the evidence about the availability of fill material, I propose to make a variation to clause 8 of the proposed remediation plan.
Clause 8 of the remediation plan proposed set out three options, in order of preference, for the source of material for filling the drains. The first of these referred to material from the site itself, the second to material from the access road, and the third to material from an appropriate off-site source. As I have earlier said, it will not be possible to obtain the whole of the material required to fill the drains from the site itself without disturbance of the original contours of the site, because there is a 9000 cubic meter shortfall. The first option is therefore not in accordance with the evidence. The second option depends on remediation orders being made in respect of the access road, thus releasing material utilised in their construction, but no such orders have been made. The third option is available, taking steps to minimise risks.
Accordingly, the remediation plan should specify the re-use of the original material, so far as and to the extent it is available, or otherwise the use of material from an appropriate source off-site.
Since alternative sources of material for fill are thereby specified, it is appropriate to require the filling of the drains to be completed within three months. Furthermore, there is no conflict between this requirement and the earthworks specified in cl 13 of the proposed remediation plan, because there is no requirement that the whole of the material required for filling the drains must be found on the site.
I should note, in connection with the remediation plan, that it contemplates the revegetation of parts of the site which were cleared some years before the work which is the subject of these proceedings was carried out by the developer. I refer, for example, to clearing underneath transmission lines. However, both Mr Parker and Professor Fox generally contemplated revegetation of those areas. Mr Parker, in his proposed plan, said that such revegetation was required to enhance the wildlife corridor, which is an essential feature of remediation of the site, in order to protect threatened species, in particular, the koala.
So far as concerns the koala and the wildlife corridor, Mr Parker and Professor Fox were at issue as to the appropriate species to be planted. I have not attempted to reconcile their differences by altering Professor Fox’s plan, but I have provided, in cl 20 of the remediation plan, that it be carried out “generally” in accordance with Professor Fox’s revegetation proposals, so that adjustment as to species can be made if necessary.
Reference to the access road
The applicant sought an order that questions of the remediation of the access road and the use of any fill from the access road be reserved for further hearing.
I do not propose to make such an order. The question of remediation of the access road is the subject of other proceedings in this Court, as I have previously outlined.
Furthermore, although Mr Larkin, for the applicant, tried valiantly to persuade me differently, I am not convinced that any question of the remediation of the access road arises for determination in these proceedings. As Stein J pointed out (at p 2), the applicant, in his class 4 application, sought a declaration that the development consent approving works undertaken to construct an access road (the road consent) had lapsed, and an order that the developer reinstate the land on which the access road had been constructed. His Honour declined to make a declaration that the road consent had lapsed, and he went on to say, at p 32, that it was not appropriate “... to order reinstatement of the land to which the road consent applies …”. I am dealing here only with the questions of mandatory orders for remediation and reinstatement which Stein J deferred, and, in the light of his Honour’s findings about the access road, the question of reinstatement of that road is not one of those deferred questions.
Notice of the applicant’s financial position
The applicant sought orders requiring the developer to give notice to the other parties of the appointment of a receiver, liquidator or administrator to the affairs of the developer, as well as notice of any act of bankruptcy of Mr Ingles, and notice of any enforcement action being taken under any charge or mortgage of the developer’s assets. In addition, the applicant sought an order requiring written notice of any sale of the site by the developer.
I am not prepared to make any such orders, because they do not go directly to the exercise of the Court’s powers under s 124(2)(c). I propose to grant liberty to the parties to apply, and that right may be exercised by the applicant if he perceives that the developer’s circumstances have changed in a way that might prevent or impede the carrying out of the remediation plan.
Consequential variation of the Court’s previous orders
The applicant sought a variation of orders 4, 5, and 6 made by Stein J to provide that those orders would not apply to the extent necessary to carry out the remediation orders which I now propose.
However, I think that such a variation is unnecessary. Order 4 is an injunction restraining the carrying out of any development pursuant to the development consent, and the remediation work which will be consequent on the orders which I propose is not pursuant to that consent. Orders 5 and 6 are injunctions restraining the clearing, formation, construction and use of the access road, and none of the orders which I propose are relevant to those orders.
Liberty to apply
Both the applicant and the developer sought, not only an order granting liberty to apply generally, but an order that all parties have liberty to apply to vary the Court’s orders in the event of any new or unforeseen circumstances.
I do not see any real distinction between such orders, and I propose only to grant liberty to all parties to apply on three days’ notice. This will be sufficient for any party to return to the Court for any variation of orders that may be warranted in future circumstances.
Orders
In accordance with the foregoing, I make the following orders:
The first respondent shall remediate the land known as the Iron Gates site, being portions 276 and 277, Parish of Riley, in deposited plan 755624 (“the site”) in accordance with the remediation plan annexed and marked “A”.
The work referred to in order 1 shall be commenced immediately, be pursued as quickly as reasonably practical and shall be completed within two years of the date of this judgment.
I grant liberty to all parties to apply on three days’ notice.
I reserve the question of costs.
5. The exhibits may be returned, with the exception of ex “M”.
I HEREBY CERTIFY THAT THIS AND THE PRECEDING 15 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.
Associate
ANNEXURE “A”
REMEDIATION PLAN
Work to be carried out by Iron Gates Pty Ltd
Iron Gates Pty Ltd (“Iron Gates”) must carry out the work referred to in this Remediation Plan on the Iron Gates site, being portions 276 and 277, Parish of Riley, in Deposited Plan 755624 (“the Site”).
The “Authority” referred to in this Remediation Plan is the NSW Department of Land and Water Conservation, or its delegate which must hold written authorisation to act.
In the event that the NSW Department of Land and Water Conservation refuses or is unable to act as the Authority, the Authority will be an independent expert, as mutually agreed in writing between Iron Gates, the Minister for Urban Affairs and Planning and Alan Oshlack to act as the Authority. In default of agreement, the Authority shall be the person appointed by the Court.
Testing of water tables beneath littoral rainforest and wetland
Carry out borehole or any other testing to the satisfaction of the Authority in respect of both the littoral rainforest adjacent to the western drain and the wetland to the east of the eastern drain to determine:
(a) whether impermeable layers exist beneath those areas which support water table in those locations;
(b) if so, the nature and location of those layers; and
(c) whether those layers have been breached.
The testing of the water tables referred to in paragraph 4 above must be carried out and completed to the satisfaction of the Authority within two months of 4 July 1997.
6. If the impermeable layers have been breached, or if, in the Authority’s opinion, there is some other reason for which it is necessary to protect those water tables, Iron Gates must undertake remedial measures to promptly restore those layers to the satisfaction of the Authority.
Backfilling of drains
The eastern and western drains on the Site must be backfilled.
Fill for both drains must be:
(a) the original material excavated from those drains so far as and to the extent that such material is available for the purpose, or
(b) fill from an appropriate source off the Site.
The source of the fill for the backfilling of the drains must be approved by the Authority before it is deposited in the drains.
The drains must be backfilled to the satisfaction of the Authority within three months of 4 July 1997.
Roads
The roads be scarified and the bitumous road material, or any road base contaminated with bitumous material, be removed from the Site.
Removal of the roads must be completed within two months of 4 July 1997.
Earthworks
Earthworks be carried out to restore the Site to its original, free-draining topography. In so far as is practicable, the Site must be contoured to reflect the original site contours as indicated on the original contour plans which form annexures A and B to the affidavit of Lindsay Ian Walker sworn 8 May 1997.
The earthworks referred to in the paragraph above must be carried out and completed to the satisfaction of the Authority within three months of 4 July 1997.
Mitigation of soil erosion
Soil erosion measures are to be used at all times on the Site as directed by, and to the satisfaction of, the Authority.
Remediation of soil
After the roads have been removed, the drains filled and the remedial earthworks have been completed as referred to in paragraphs 7 - 14 above, the remaining soil on the allotments must be tested to determine whether it has an appropriate pH balance before the revegetation programme commences. Soil testing must be carried out to the satisfaction of the Authority.
If soil affected by acid-sulfate is found, the affected soil must be either removed or remediated in accordance with Environment Protection Authority and Department of Land and Water Conservation guidelines. The soil remediation must be carried out under the direction of, and to the satisfaction of, the Authority.
Revegetation
Within one month of 4 July 1997, Iron Gates must:
(a) commission a nursery approved of by the Authority to grow native plants for the purpose of revegetating the Site;
(b) direct that nursery to collect seed from the Site and any adjoining areas (after first obtaining any adjoining landholders’ consent); and
(c)direct that nursery to grow the species referred to in the affidavit of Marilyn Dale Fox sworn 21 April 1997.
Once the soil has been remediated in accordance with paragraphs 16 and 17 above (if this is found to be necessary), the Site must be prepared using hydro-mulching and brush-matting.
The Site must be revegetated generally in accordance with the revegetation plan which forms part of Exhibit “M” and paragraphs 23 - 32 of the affidavit of Marilyn Dale Fox sworn 21 April 1997.
Replanting must be completed within nine months of 4 July 1997.
Cost of remediation work
All costs of complying with this Remediation Plan must be paid by Iron Gates.
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