Ralph Betts v Gosford City Council
Case
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[2003] NSWLEC 217
•09/23/2003
No judgment structure available for this case.
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Land and Environment Court
of New South Wales
CITATION: Ralph Betts and anor v Gosford City Council [2003] NSWLEC 217 PARTIES: Raplh Betts - First Applicant
Cleve Smith Excavations Pty Limited - Second Applicant
Gosford City Council - RespondentFILE NUMBER(S): 10889 of 2002 CORAM: Nott C at 1 - Moore C at 1 KEY ISSUES: Construction and Interpretation - Development Consent - Discretion - Extractive Industry :- Modification of consent - whether modifications substantially the same as original consent LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 79C and s 96
Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980CASES CITED: Auburn Municipal Council v Szabo (1971) 67 LGRA 427;
Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 ;
Mitchell v Vella [1998] NSWLEC 250;
Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 ;
Coalcliff Community Association Inc v Minister for Urban Affairs and Planning [1999] NSWCA 317, 106 LGERA 243DATES OF HEARING: 12, 12, 14 and 15 August 2003 DATE OF JUDGMENT:
09/23/2003LEGAL REPRESENTATIVES:
CounselFirst Applicant - Ms S Duggan, barrister
Second Applicant - Mrs J Kelly, barristerSolicitors
First Applicant - PriceWaterhouseCoopers Legal
Second Applicant - Gary Cleary & AssociatesRespondent
Counsel
Solicitors
Mr A J J Thompson, barrister
P J Donnellan & Co
JUDGMENT:
Judgment
NOTT C & MOORE COverview
1 This is an appeal under s 96 of the Environmental Planning Assessment Act 1979 (“the Act”) in respect of a development consent for an extractive industry at 620 Wisemans Ferry Road, Somersby on Lot 2 DP 10982, now known as Lot 2 DP 362339 (“the site”). The development consent (“the consent”) was given by Gosford City Council (“the council”) and is dated 9 February 1979.
2 As the interpretation of the terms of the consent is critical to the issues in this appeal, we reproduce the letter of consent in full. Under the letterhead of the Gosford Shire Council, the consent reads:
IN REPLY PLEASE QUOTE: BDR:CH 4475.8058
9th February, 1979.
Mr. K. Fagan,
Main Road, R.M.B. 3605,
SOMERSBY. N.S.W.
Development application in respect of Lot 2, D.P. 10982, Wisemans Ferry Road, Somersby. Proposed Extractive Industry
Dear Sir,
At its meeting held on 6th February last the Council resolved that approval be granted for the establishment of the industry referred to above, subject to the following conditions:-
(a) access to be located approximately 25 m south of the existing driveway location and subject to the requirements of the Shire Engineer with regard to construction of the access, sealing of the apron of Wiseman’s Ferry Road, the removal of trees to improve sight distance;
(b) submission of a plan, to be approved by the Chief Town Planner, showing the method of working of the site;
(c) No disturbance is to take place within 20 metres of any boundary fence nor within 20 metres of either bank of any watercourse;
(d) all timber is to be removed or stockpiled and burnt subject to approval by relevant authorities;
(e) no area larger than 0.5 ha is to be worked at any one time, consequently the procedure should be 0.5 ha being prepared for extraction, 0.5 ha being worked and 0.5 ha being rehabilitated;
(f) all extraction should commence at the highest point and moved [sic] in a downhill direction;
(g) Graded banks (maximum channel gradient 0.2%) to be constructed immediately above the working site and thereafter every 60 m downslope as work progresses; all banks to outlet into the undisturbed watercourses;
(h) all batters are not to be steeper than 20% in gradient;
(i) All topsoil is to be stockpiled and respread over disturbed areas including graded banks, no topsoil to be stockpiled longer than 6 months, nor is it to be stockpiled in watercourses or graded banks;
(k) after topsoil respreading, all disturbed areas, banks and batters are to be sown and fertilized with the following mixtures:-(j) All disturbed areas are to be re-shaped such that no waterponding occurs on the extraction site;
- (i) seed – autumn/winter sowing:
white clover (inoculated and lime pelleted) -3 kg/ha
rhodes grass -6 kg/ha
perennial ryegrass -6 kg/ha
cereal rye/barley (cover crop) -10 kg/ha
(ii) seed – spring/summer sowing:
white clover (inoculated and lime pelleted) -3 kg/ha
red clover (inoculated and lime pelleted) -3 kg/ha
- couch grass -5 kg/ha
rhodes grass -6 kg/ha
Japanese millet -10 kg/ha
(iii) fertilizer – “Starter 18” (18:18:0) twice yearly
(autumn and spring) at a rate of 200 kg/ha
(m) a bank guarantee to the sum of $3,000 being lodged with Council prior to commencement of operations. This security is to be applied consecutively to each 1-ha portion of the operation as outlined in condition (e) above and is to be released upon completion of restoration and revegetation to the satisfaction of Council and the Soil Conservation Service of New South Wales.
(l) Maintenance is to consist of fertilizer dressings twice yearly for 5 years after completion of work, resowing of unstable areas and planting of tree species to return the disturbed areas to that presently existing;
- Your attention is also drawn to your right of appeal against the conditions of this consent to the Local Government Appeals Tribunal.
Yours faithfully,
[Signed]
SHIRE CLERK.
- 3 Details of the applicant’s proposed amendments to the consent, together with the reasons for the modification, are set out in a document of 31 pages plus annexures, entitled “ Rindean Quarry S.96 Consent Modification Report ” (exhibit A).
4 By 21 October 2002 the council’s Development Assessment Unit resolved to refuse the modification application for the following reasons:
A. Council as consent authority refuse Development application No15525/2002 for the proposed Section 96 application to modify an existing consent for an extractive industry on Lot 2 DP 362339 No 620 Wisemans Ferry Road, Somersby for the following reasons;
1. The proposed modification will result in a development which is not substantially the same Development previously approved by Council on the 9 February 1979 Development Application No 4475.
2. Approval of the proposal is not considered to be in the public interest having regard to the extent of the modification proposed and the number of public submissions received.
B. That legal action be initiated the Land and Environment Court to have the use of the site as an extractive industry cease.
5 During the hearing, Mr A J J Thompson of counsel stated that the intention of the council was not to prevent extraction activity altogether. However, it was the council’s position that the applicant should lodge a development application, supported by an environmental impact statement, to obtain a new development consent for any further quarrying activity.
6 The proposed modified development is designated development, because of the volume of extractive material to be obtained for sale or reuse is “more than 30,000 cubic metres of extractive material per year”, and because the extractive industry activities "will disturb a total surface area of more than two hectares of land…by clearing or excavating” (cl 19(1) (a) and (b) of sch 3 of the Environmental Planning and Assessment Regulation 2000). However, no environmental impact statement is required to accompany an application for modification of a consent. The consent of 9 February 1979 was granted before the coming into force of the Environmental Planning and Assessment Act 1979, and, of course, there was no requirement at that time for an environmental impact statement. Even if a consent in the same terms as the consent of 9 February 1979 had been granted in respect of a development application made immediately after the commencement of the EP&A Act, it is not clear that the development would have been designated development, if the development had been carried out in accordance with the conditions of consent. In any event, as will be seen, the proposed modified development would be substantially different from the relatively low-scale development envisaged by the conditions of the consent.
7 When the consent was granted in February 1979, what was the physical state of the land in Lot 2? The earlier 1977 orthophotomap (part of ex. 9) shows that a large proportion of the lot, including much of the lower eastern (or rear) half of the lot, was bushland. About halfway up the lot near the southern side boundary, there was a house (which still exists on the land). On the western side of the house was an orchard, and further up the site to the west, between the orchard and Wisemans Ferry Road, was more bushland. There is nothing in the evidence to suggest that the condition of the land in February 1979 differed from that shown by the orthophotomap.
8 Following the granting of consent, extractive industry activities commenced, and massive changes have since been made to the landform of Lot 2. The coloured aerial photographs of 1994 and 1999 (ex. C annexure I and ex. 6) show the widespread denudation of the subject land where the extractive industry activities have occurred. Extensive extraction and ancillary works have occurred on well over half of Lot 2, mainly in that area of the site between the eastern (or rear) boundary extending up to the existing old house and practically across the whole width of that area between the side boundaries. Extractive industry activities have also occurred beyond the western alignment of the old house but on northern side of the land, where a temporary bund is presently about 70 m from the rear boundary of Mr Lynch’s property or about 90 m from his home. See the coloured “Figure 1.2 Existing Operations” (in ex. A). Over recent years, it appears that in excess of 30,000 tonnes of material per annum have been extracted and removed from the site.
9 Reference may also be made to the photographs 1, 2 and 3 (ex. D appendix 3), which give close-up views of the site and which show the massive changes that have occurred. However, these photographs of parts of Lot 2 do not fully reveal all the works that have occurred and that were observed on our site inspection. For example, although photograph 2 shows an almost vertical rock-face of an excavated area near the existing old house, that photograph does not show fully the width or great depth of the excavated area at the base of the rock-face. The rock-face drops about 30 m or 40 m from what would have been the natural ground level down to the water surface of a large pond that has been created in the course of the quarrying activities.
10 The main extractive industry operations include the ripping and crushing of friable Hawkesbury sandstone. Other operations are detailed in the modification report (ex. A).
11 The proposed manner of continuing the extraction of material is set out in the modification report, particularly at par 1.2.3 under the heading “Extraction Plan” and as shown on the coloured plans in figures 1.3, 1.4 and 1.5, being proposed stages 1, 2 and 3 of the progressive extraction and rehabilitation of the site. The stages would progressively move uphill, and would involve the removal of the existing old house on the site. The extraction within the Future Development Area shown on the stage 3 plan would finish 10 m from Wisemans Ferry Road and 10 m from the southern side boundary (which is about 40 m from the house of Mrs K Wilson). On the northern side, the extractive industry activities would progress to about 30 m from two houses, one being owned by Mr B Lynch and the other house (not shown on the applicant’s plans) owned by another person opposed to the modification. The excavated areas would progressively move uphill, close to the groundwater bores of these persons. Mr A Pickup’s amenity would also be affected, although his house is on the northern side of Mr Lynch's home; and his groundwater bore is in his rear yard, which is separated by a narrow unmade public road from the northern boundary of the subject land.
12 Much of the open-cut extraction would occur to depths of about 50 m below the natural ground levels that existed as at the date of the consent. The maximum depth would be about 80 m below the natural ground level in one section of the future development area of stage 3. When extraction has ceased, the deeper excavated areas would be rehabilitated by being filled by up to about 45 m. The finished surface of the rehabilitated flat area near the western (or road) boundary would nevertheless be about 40 m below the present natural ground levels. See the plan section A-A being figure 3.6 (ex. A), which shows the bottom levels of the excavations (in dotted lines) and the proposed rehabilitated levels of the land but not the higher natural ground levels that existed as at the date of the consent. The existing natural ground levels as at the date of the consent are likely to have been as shown on the orthophotomap ex. 9, from which Mr Chestnut prepared A21 of ex. 1—a reduced copy of A21 is annexure B to this judgment. Because of different datums, the figure of 160 should be added to the contours of the plan in figure 3.6 when comparing it with A21: Thus, at the main road where there is no excavation, the 100 contour of figure 3.6 equates to the 260 contour on A21.
13 If the proposed modifications were approved, it is envisaged that extractive industry operations producing about 50,000 tonnes of sand per annum could occur for about 40 years.
14 By the time the future development area of stage 3 is completed, the whole area of Lot 2 (excluding parts of the relatively narrow 10 m or 20 m buffer areas along the boundaries the lot) would have been used for the extractive industry operations.
15 For the reasons given below, we are of the opinion that the development that has already occurred is substantially different from what was envisaged to be carried out within the confines of conditions (c), (e), (f) and (g). The proposed modified development would allow an even greater departure from the relatively low-key operations that were contemplated by the consent. The modified development would be substantially different from the development for which consent was granted—and this is not permitted by s 96(2)(a) of the Act. Accordingly, the modification application must be dismissed.
16 We are also satisfied that it would not be appropriate as a matter of discretion to approve the modification application, if that option had been available to us.
Applicable planning controls
17 The hearing proceeded on the basis that the only relevant planning instrument is Interim Development Order No 122—Gosford (“IDO 122”). The provisions of IDO 122 are relevant to our consideration under s 79C of the Act of issues related to the present modification application – however, they were not applicable to the original consent, as mentioned below (at par 23).
Issues
18 The council filed a formal statement of issues dated 14 January 2003. However, the main issue at the hearing was whether the development as proposed to be modified is substantially the same development that was approved by the consent dated 9 February 1979. The additional issue requiring consideration was whether the impact on neighbours was acceptable.
Evidence
19 At the hearing, evidence for the applicant was given by Mr M Curtis, environmental engineer, and by Mr S Czeref, consultant town planner. For the council, evidence was given by three of the neighbouring property owners: Mr B Lynch, Mr A Pickup and Mrs K Wilson. Of the neighbouring property owners, Mr Lynch purchased his property in 1972, built a house on it in 1977 and moved in at Easter 1978—before the commencement of the extractive industry. Expert evidence for the council was given by Mr G Chestnut, who has been employed by the council since 1989 as a town planner, then environmental officer and now as Manager–Environmental Education and Protection.
Parties to the proceedings
20 The first applicant, Ralph Betts, in whose name the modification application under s 96 was made, is not the owner of Lot 2. At an early stage of the hearing, it became apparent that the interests of the owner of the subject property, Cleve Smith Excavations Pty Limited, were potentially affected by some of the matters raised by the Court during consideration of issues in the case. As the sole director of the owner was present in Court at the time, he was invited to consider whether the owner should seek separate representation in the proceedings. Subsequently, Mrs J Kelly of counsel appeared for the owner. With the consent of the first applicant and of the council, Cleve Smith Excavations Pty Limited was joined as the second applicant.
Consideration of the terms of the consent
Identification of the site
21 The consent was expressed to be in respect of Lot 2, DP 10982, Wisemans Ferry Road, Somersby. During the course of the hearing, some initial confusion arose as to what parcel of land was referred to by this particular title description. However, the first applicant produced and tendered a number of cancelled certificates of title that enabled the history of earlier dealings with the land to be established. Consequently, any initial doubt that may have arisen as to whether this constituted an adequate description of the parcel of land to which the consent referred was satisfied.
22 Lot 2 DP 10982, referred to in the consent, is now known as Lot 2 DP DP 362339. The area of the lot is 15.76 ha.
The nature of the activity approved
23 The original consent was granted on 9 February 1979. The planning instrument then in force was not identified or tendered in evidence. However, the parties conducted the proceedings on the basis that the proposed modified development would fall within the meaning of the words “extractive industry” as used in the consent, and we have proceeded to determine this appeal on the same basis. IDO 122 was gazetted on 30 March 1979 and has been subsequently amended. The proposed activities to be undertaken on the site clearly fall within the current definition of “extractive industry” as used in IDO 122.
The area of the site over which the approval extended
24 Ms Duggan, counsel for the first applicant, submitted that, as the consent was expressed to be in respect of Lot 2, DP 10982, Wisemans Ferry Road, Somersby, it applied to the whole of the site except to the extent that it was necessarily restricted as a consequence of any of the specific conditions of the consent.
25 On the other hand, Mr Thompson submitted that the original application form and other documents and plans lodged with the council before the granting of the consent should be used to determine that the extractive industry was to be conducted on a more limited part of Lot 2.
26 Just prior to the granting of the consent, the then owner of Lot 2 (Mr Fagan), in response to a request from the council, had submitted a plan (ex. 13) showing that the extractive industry was to occur on the eastern or rear part of the lot: a line drawn across the plan separated the rear part from the rest of the lot. Printed on the rear part of the lot were the words:
- AREA TO BE MINED
APPROX. 10 ACRES
DEPTH FROM 0’ – 20’
(SAND EXTRACTION)
(SEE REF. RC. JF 4475.51)
28 If the extractive industry operations were limited to the area and depth shown on the plan ex. 13, as contended for by the council, then the proposed modified development would necessarily be substantially different.
29 However, it is settled law Auburn Municipal Council v Szabo (1971) 67 LGRA 427. that, in determining what activity is authorised by a particular development consent, one looks primarily at the approval and construes it. The only circumstances where the consent may be regarded as incorporating another document are if the consent does so expressly or by necessary implication Winn v Director General of National Parks and Wildlife [2001] NSWCA 17 per Stein JA at paragraph 199 .. The question of necessary implication arises if there is some lack of clarity when undertaking the construction of the consent itself.
30 We are satisfied that the consent applies to the whole of Lot 2 DP 10982 with the only limitations on this being those that arise from the application of any of the conditions of the consent. There is no uncertainty or ambiguity that would necessitate importing other documents.
Condition (a) – relocation of the driveway
31 We come now to consider each of the conditions of the consent in the light of the proposed modifications. It was agreed by the parties that no alteration was proposed to the access from the main road and, as a consequence, nothing arises from it in these proceedings.
Condition (b) – approval of a plan showing the method of working the site
32 Condition (b) required the “ submission of a plan, to be approved by the Chief Town Planner, showing the method of working of the site . ” The s 96 application proposed that this condition be deleted.
33 The statement of evidence of Mr Curtis, dealing with this condition, on behalf of the first applicant, said:
- Council in its response to an inquiry by a potential purchaser of the then quarry operator, in letter dated 23rd November 1983 to Warringah Sand & Gravel Supplies… stated:
- “… no objection will be raised to the continued use and operation of the site for the purpose of extracting sand subject to the submission and approval of a detailed site plan indicating methods of improved silt control, future site development and revegetation…[ The letter stated that this plan had to be provided within 28 days. ]
- Based on the above documents there was no evidence that Council approved a plan showing the method of working the site under condition (b).
- We have submitted a sketch plan with this letter which shows the proposed area of extraction.
· the relocated access;
· two proposed working sites within the lower, eastern part of Lot 2 DP 10982;
· the location of a creek and a 20 m buffer zone on either side of it separating the proposed working sites;
· the site of a proposed screening plant; and
· 20 m buffer zones on the northern, eastern and southern boundaries of the eastern half of Lot 2 DP 10982.
Other than indicating the access road, the plan did not show any extractive industry activities in the western half of the lot. As mentioned earlier, the proposed modified development will involve the use of practically the whole of the lot.
37 If this plan were regarded as a plan showing the method of working of the site , as required by condition (b), there is no evidence before us that it was approved by the Chief Town Planner as required by the condition. As a result, we are not able to be satisfied as to what was an approved method of working of the site.
38 Having reached this conclusion, we turn to consider what, if any, consequences might flow from this. Ms Duggan, supported by Mrs Kelly, submitted that we should treat this condition as merely requiring submission of a procedural document which would be regarded as being of no more than a pick and shovel methodology of little consequence. She submitted that it was not a condition precedent to the commencement of the extractive industry activity on the site.
39 The second-last paragraph of the consent says “You are advised that this approval, valid for a period 12 months for substantial commencement of the development, relates to Planning Control only…” Although the word “valid” is used in the condition, this condition really relates to the lapsing or duration of the consent. The reference to substantial commencement has been interpreted to mean lawful substantial commencement.
40 On one view (about which we make no determination), the consent would have lapsed, unless condition (b) had been fulfilled within the period of 12 months of the date of the consent and the development had thereafter commenced within that period. On that view, the consent would not have been in force when the Environmental Planning and Assessment Act 1979 commenced on 1 September 1980, and clauses 8 and 8A of the Miscellaneous Acts (Planning) Savings and Transitional Provisions Regulation 1980 would not have applied.
41 In Coalcliff Community Association Inc v Minister for Urban Affairs and Planning, (1999) 106 LGERA 243. the Court of Appeal held that a development consent that has lapsed cannot be the subject of a modification application. Hodgson CJ in Eq (with whom Meagher JA agreed) said:
83 It is correct to say that a consent or an environmental planning instrument remains valid until a court declares it to be invalid (Smith v East Elloe Rural District Council [1956] AC 736 at 769 - 770 and see Cole JA in The Minister v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 88). However, a distinction needs to be made between the validity of a decision to grant a consent and the statutory lapsing of a validly granted consent which has not been commenced within the time required by the statute. …
- 100 In my opinion, one legal consequence of lapse was that the consent could not be the subject of an application for modification…
43 It was principally because of the problem posed by condition (b) that we invited the owner of the subject land to participate in the hearing of this appeal. The owner was joined as a party, by consent as the second applicant (par 20 above).
44 In the present case, Mr Thompson on behalf of the council said that the council was not asserting that the consent of 9 February 1979 had lapsed. This position may have been adopted because of the existence of a letter from the council concerning the status of the consent. In a letter to Mrs Fagan dated 15 August 1988, which made no reference to the earlier letter and file note (par 33 above), the City Manager of the council said:
- Consent was granted for this use [extractive industry] on 9 February 1979 and the development was physically commenced. This consent is consequently on-going and council raises no objection to the recommencement of the quarry providing all conditions of the approval granted 9 February 1979 receive compliance .
46 In view of our findings below on other aspects of the consent and of the proposed modifications, this appeal will be dismissed. Accordingly, we do not need to express any concluded view on the status of the consent or decide what course of action we would take, if we were otherwise minded to grant the modification application. For the purpose of this appeal, we shall assume (without deciding it) that the consent has not lapsed.
47 Nevertheless, insofar as condition (b) required the submission of a plan showing the method of working the site, it was an important condition, bearing in mind also that there was no other plan incorporated in the consent. A plan approved by the Chief Town Planner could perhaps have shown the location of certain proposed works to be carried out at a sufficient distance from Mr Lynch’s house so as not to adversely affect his amenity.
48 It would certainly have been within the compass of condition (b) for an approved plan to have shown the method of working the site so as to comply with the other conditions of this consent. If there had been such a plan, it may have reduced or eliminated some of the disputed ways of complying with the other conditions of the consent. For example, there were significant differences of opinion between Mr Chestnut and Mr Curtis concerning the quantity of material that could be extracted in accordance with the conditions of consent (pars 98 and 99 below).
49 It is not appropriate that condition (b) simply be deleted and the other changes requested by the applicant made to the consent. As discussed in more detail below, the adoption of the applicant’s plans for working the site (set out at figures 1.3, 1.4, 1.5, 3.3, 3.4, 3.5 and 3.6 of the s 96 modification report) would result in a development substantially different from the smaller-scale development envisaged by the other conditions of consent, particularly conditions (c), (e), (f) and (g).
Condition (c) – buffers at boundary fences and watercourses
50 Condition (c) required a method of operation so that “No disturbance is to take place within 20 m of any boundary fence nor within 20 m of either bank of any watercourse . ” There are two elements of this condition.
Buffers at the boundaries
51 The first element of condition (c) required that “No disturbance to take place within 20 m of any boundary fence.”
52 Two aerial photographs taken in 1954 were in evidence as was a 1:4000 orthophotomap dated 1977 (compiled from aerial photographs taken on 16 November 1976 and validated by limited field work in 1976). Several further aerial photographs subsequent to the date of the original consent were also in evidence. Mr Curtis gave evidence that he was unable to detect any boundary fence-line from any of the aerial photographs. On our inspection of the site, the original gate at the entrance to the former driveway to the site was pointed out to us, together with the remnants of a fence on either side of it. The former driveway is shown on the plan Annexure A hereto.
53 We are of the opinion that fences and fence-lines would not necessarily be seen on the aerial photographs, having regard to the height from which the photos were taken and the presence of trees near the boundaries. Whether there were fences along the boundaries of Lot 2 in 1979 cannot be determined with sufficient certainty on the evidence.
54 However, we consider that the first element of condition (c) should be construed in a purposive fashion, taking into account the nature of the development that was approved and the other provisions of the consent. Taking a purposive approach, the words boundary fence should be construed as being a reference to the any boundary of Lot 2. It could be inferred that the purposes of this element of condition (c) were:
· for the northern and southern boundaries – to provide vegetated screening to neighbouring properties;
· for the western boundary – to provide vegetated screening from Wisemans Ferry Road; and
· for the eastern boundary – to provide, along the downhill boundary, vegetated screening to the neighbouring property, as well as a vegetated filter strip similar to the purpose of the 20 m wide strips along the banks of any watercourse referred to in the second element of condition (c).
55 Thus, this first element of condition (c) should be construed as prohibiting any extraction or associated works, such as bunds, taking place within 20 m of any boundary of Lot 2.
56 It is clear from the view, and from Figure 1.2 Existing Operations contained in the modification application, that the present quarrying activities are being undertaken within 20 m of the eastern boundary of the property by the use of what is described as Pond 1. The future extraction plan Exhibit A at 1.2.3 on page 3. states:
- During Stage 1, Pond 1 will be filled with sediment from the wash plant and decommissioned, then dewatered and rehabilitated.
57 In addition, along the southern boundary (for approximately the easternmost third of the boundary), a bund has been constructed which is depicted (but not described) in Figure 1.2. We walked along the top of part of this bund on our inspection of the site. It is clear from the diagrams following in Figures 1.3 and 1.4, representing stages 1 and 2 respectively of the Extraction & Progressive Rehabilitation Plan , that the proposed future quarrying activities intend to rely on this bund. This bund is constructed within the 20 m buffer along part of the southern boundary of the property.
58 Figure 1.5 depicts stage 3 of the Extraction & Progressive Rehabilitation Plan . It shows the intention that the continuing proposed extractive activities, as they move further to the west into what is marked as the Future Development Area , will preserve only a 10 m buffer strip along the southern boundary of the site between the south-western corner of the property and the present end of the bund. In addition, Figure 1.5 also makes it clear that stage 3 of the Extraction & Progressive Rehabilitation Plan envisages that only a 10 m buffer strip would be retained along the frontage of the site to Wisemans Ferry Road.
59 The existing works and proposed future extractive industry works within 20 m of the eastern, southern and western boundaries of the Lot 2 are in conflict with condition (c) of the consent. Even though the works within these boundary buffers are not extensive when compared with works elsewhere on Lot 2, the works within the buffers take on greater significance because of their proximity to adjoining properties and to the public road. Consequently, we are satisfied that the proposed modified development, on account of the changes along the eastern, southern and western boundaries, would not be substantially the same as the development in respect of which the consent was granted.
Buffers along Watercourses
60 The second element of condition (c) is that “No disturbance is to take place…within 20 m of either bank of any watercourse . ” As will be seen below, we consider that this element of condition (c) and condition (g) are the most important conditions of the consent, leaving aside condition (b). The proposed modified development involves a radical departure from more confined development envisaged by this second element of condition (c).
61 The second element of condition (c) uses the words any watercourse. However, the use of the word watercourses in conditions (g) and (i) suggests that the framers of the original consent considered that there was more than one geographic feature which might be regarded as a watercourse and was located on Lot 2 DP 10982.
62 Four elements in the evidence enable the identification of one such geographic feature. First, we do not consider it inconsistent with the decision in Winn to have regard to Annexure A hereto for the purposes of establishing that the original applicant identified a geographic feature, which he described as a “creek”, running from roughly north-west to south-east across the southern half of the property.
63 Second, Mr Chestnut interpretation’s of the orthophotomap was that there was a creek on the subject land, which he showed on a plan, a copy of which is attached to this judgment as Annexure B .
64 Third, Mr Czeref marked on the orthophotomap where he interpreted would be the location of the commencement of a depression across Lot 2. It was also his evidence that this marking on the orthophotomap was consistent with Mr Chestnut’s depiction in Annexure A.
65 Fourth, Mr Lynch marked (on Figure 1.2 in a copy Appearing as Appendix A18 to Mr Chestnut’s statement of evidence. of the first applicant’s s 96 Consent Modification Report) the location of what he described as a “creek” which flowed before the existence of quarry. The evidence of Mr Lynch, although not precisely identical with the other three evidentiary elements described above (which elements are almost coincidental), is broadly consistent with these other elements. Mr Lynch’s lack of precision can be understood in light of the facts that the plan which he was using was one relating to the existing quarry operations rather than any photographic or topographic depiction of the site and that Mr Lynch did not profess any expertise of this type but was relying on his memory of the state of the site some 25 years earlier.
66 This identification of a “creek” is also consistent with the 1:25,000 topographic Gosford map which includes the site. This map, although printed in 1988, is based on aerial photography undertaken in 1982 and field revision in 1984. This map shows a quarry on the site together with a water feature (which Mr Czeref suggested might be the quarry’s freshwater pond) together with a blue drainage line which, on Mr Czeref’s interpretation of the map’s key, should be read as an “intermittent watercourse” .
67 From the view, it was obvious that nothing now remains, on the site, of the abovementioned “creek” or “intermittent watercourse”. However, during the course of view, we were able to observe where a watercourse probably continued eastward from the eastern boundary of the site (see also par 78 below).
68 Both Mr Chestnut and Mr Czeref gave evidence that, located above the northern end of the “creek” shown on Annexure B, was what was variously described as a sedge land or hanging swamp. Mr Chestnut also gave evidence that he identified, from the 1954 aerial photo of the site, a continuation of the creek upstream to the north-west from this hanging swamp area. Mr Czeref’s interpretation of these features from the orthophotomap was that this continuation was not present. On balance, while we accept Mr Chestnut’s depiction of a creek as shown on Annexure B hereto, we are not satisfied that his interpretation of an extension of this feature into the adjoining land to the north should be adopted. The absence of a creek or intermittent watercourse above the hanging swamp on the subject site is consistent with Annexure A and with Mr Lynch’s evidence.
69 Mr Chestnut and Mr Czeref also each gave evidence about the method of interpretation of the orthophotomap and how contour lines are interpreted to show the juxtaposition of spurs and re-entrants with an appropriate pattern of re-entrants indicating the possibility of a drainage line or watercourse. Several possible patterns of this nature appear on the orthophotomap generally to the north-east of the “creek” identified above. However, there is insufficient evidence to say that these re-entrants were themselves watercourses which also flowed eastward.
70 We are satisfied as to the existence as at the date of the original consent of the geographic feature described by Mr Fagan as a “creek” (Annexure A) and identified by Mr Chestnut (Annexure B). We further need to consider whether this feature should be regarded as a watercourse for the purposes of the original consent.
71 Ms Duggan referred us to the remarks of Sheahan J in Mitchell v Vella [1998] NSWLEC 250. where His Honour said:
- 86. In Gartner v Kidman (1961-62 ) 108 CLR 12 (“Gartner”), Windeyer J surveyed the cases and writings on “watercourses”. His Honour quoted a passage from Angell on Watercourses, 5th ed. (1854) as follows (at 26):
- “A watercourse consists of bed, banks and water ; yet the water need not flow continuously; and there are many watercourses which are sometimes dry. There is, however, a distinction to be taken between a regular flowing stream of water, which, at certain seasons is dried up, and those occasional bursts of water which in times of freshet or melting of ice and snow descend from the hills and inundate the country.”
- “when .... rights and obligations relating to occasional flooding by surface water are the subject of legal discussion the depressions which provide the natural course or outlet for such waters may be called watercourses. But the law treats such valleys and depressions very differently from watercourses that have the qualities of rivers and streams.”
- “...[i]t is settled that a watercourse consists of a stream with a bed, with banks, and water. That the flow of the water in the stream is intermittent or seasonal will not prevent what would otherwise be a watercourse from being accounted such: but though it is quite true that a watercourse may exist though its bed be dry for some periods, the watercourse, in my opinion, must exhibit features of continuity, permanence and unity, best seen, of course, in the existence of a defined bed and banks with flowing water. It must, in my opinion, essentially be a stream and be sharply distinguished from a mere drain, or a drainage depression in the contours of the land which serves to relieve upper land of excess water in times of major precipitation.”
90. Mr Davison also relied on an unreported decision of Lee J in the NSW Supreme Court, Latta v Klinberg (No 8280 of 1976, 1 July 1977) (“Latta”), in which Lee J said (at 21):
- “This was very much a case where the ‘channel’ in which the stream would flow after heavy rain, if it flowed, was not clearly defined over quite a considerable area except by the fact that the natural lowest point of the land would be its course, but a watercourse requires `identifiable margins’ which are in fact its banks and bed, and observable margins which are really no more than the natural surface of the ground rising gently on either side do not constitute banks and bed”.
73 Mr Czeref also examined a blown up version Forming part of Annex K to Mr Curtis’s statement of evidence. of the aerial photograph of the site taken on 12 September 1994. This photograph showed the disturbed area of the quarry in a location generally consistent with that inspected on the view – although the workings may be slightly differently located. Mr Czeref was unable to detect the presence of the hanging swamp within Lot 2 on this photograph. With respect to this, Mr Lynch gave evidence that he was concerned about the diversion of water by a bund which had been constructed along the eastern boundary of his property with the quarry. Mr Curtis’s statement evidence (at p 12) indicates that such a diversionary bund was constructed in approximately 1987. We accept that the construction of this diversionary bund would have had the effect of blocking upslope sources of water to the hanging swamp. Consequently, nothing useful can be obtained on this issue, in our view, from the 1994 aerial photograph.
74 Because of the complete destruction by the quarrying activities of any element of the identified “creek” within the site, we are left with limited and conflicting evidence on whether or not the feature had identifiable banks and a bed within which a stream flowed.
75 On the one hand, Mr Czeref’s interpretation of the orthophotomap was that there were merely a series of depressions with none of the identifiable features, which would constitute a watercourse.
76 On the other hand, Mr Chestnut’s evidence of interpretation of the orthophotomap is that there were identifiable features, including spurs and re-entrants depicted by the contour lines, which enabled him to conclude that the “creek” was in fact a watercourse.
77 Three other elements provide support to Mr Chestnut’s interpretation in preference to that of Mr Czeref. Two of these come from the descriptions by the initial applicant and Mr Lynch of the identified feature as a “creek”. Whilst, obviously, each of these was merely a lay assessment of what the observer regarded was present when he looked at the feature, the ordinary English usage of this expression is more consistent with a watercourse.
78 The final element comes from what was observed on the view and was referred to in the evidence of Mr Chestnut. Mr Chestnut indicated the line where the downstream continuation of the watercourse debouched from the eastern boundary of the property. There were clear and identifiable changes in the vegetation pattern along this line consistent with the existence of banks. The topography was more consistent with what was required for the presence of a watercourse than with a feature of the characteristics described by Mr Czeref.
79 On balance, we are satisfied that the “creek” depicted by Mr Fagan on Annexure A, observed by Mr Lynch, and identified by Mr Chestnut, was a watercourse for the purpose of conditions (c), (g) and (i) of the consent.
80 The consequence of concluding that there was a watercourse across part of the site is that the quarrying activities were required by condition (c) to be carried out so as not to disturb the land within 20 m of each bank of the watercourse.
81 The watercourse and surrounding buffer zones, which were required to be kept undisturbed, have been entirely removed by excavation. Within the northern area of the former watercourse and buffer zones (in the vicinity of cell 3), the depth of excavation at the present time is about 27 m below the former natural ground levels at the date of consent. Compare Figure 1.2 of ex. A and A21 of ex. 1, and see footnote 1 above. The proposed future excavation of this cell would be up to a depth of about 55 m below the former natural ground levels. Compare Figure 1.5 (stage 3) of ex. A and A21 of ex. 1
82 In our opinion, the development that has already occurred is radically different from the development for which consent was obtained, because of the failure to comply with condition (c) of the consent. The proposed modified development will be even more extensive and substantially different from the limited development envisaged by the consent.
Condition (d) – removal of timber
83 Nothing of substance arose from this condition in these proceedings.
Condition (e) – sequential working areas
84 This condition required that no area larger than 0.5 ha is to be worked at any one time, consequently the procedure should be 0.5 ha being prepared for extraction, 0.5 ha being worked and 0.5 ha being rehabilitated . By letter dated 14 June 1979, the original applicant effectively sought a variation from the council of this condition so that each of the 0.5-ha elements in this condition became 1-ha elements. By letter dated 2 July 1979, the council indicated that it did not have any objections to such variation. However, it seems that the present modification application should be tested against the original terms of the 9 February 1979 consent, not against any subsequent modifications to this consent .
85 It is clear that the present physical state of site (described at pars 8 and 9 above) is in substantial non-conformity with either the original condition (e) or the amended condition (e).
86 The application to modify the consent sets out, from page 3, the proposed future extraction plan for the quarry. It shows, diagrammatically, in Figures 1.3, 1.4 and 1.5, the proposed future stages 1, 2 and 3 of the extraction plan. Self-evidently from the diagrams, none of these stages is even broadly consistent with this condition of the consent. None of these stages is given a projected timeframe in the modification application but their carrying out, from the nature of the works in the description of the extraction plan clearly envisages an extended period. The extraction plan also notes that, after the conclusion of the future stage 3, quarrying would continue beyond the present lease area toward the main road frontage. With respect to these future activities, the only details provided in the modification application for dealing with the sequence of activities is in the following terms:
- It is proposed that extraction and progressive rehabilitation proceed in the same manner as previous stages, with quarry cells developed progressively and settling ponds within completed quarry cells dewatered and rehabilitated as they fill with sediment. Virgin excavated material will be used to provide firm capping material and topsoil, as neither of these materials is available on site.
Condition (f) – commencement of extraction
88 This condition required that “all extraction should commence at the highest point and moved [sic] in a downhill direction.” If this condition is construed as requiring commencement of extraction at the highest point on the site, that has clearly not occurred. Similarly, the order of extraction proposed in the modification application makes it clear, in figure 1.5, that future extractive operations would move to the west, uphill through the location of the house that is presently constructed on the site, and thence progressively toward the main road boundary. It was submitted on behalf of the first applicant that this condition should be interpreted as merely imposing a downward extraction process from the point where such extraction commenced.
89 However, accepting the evidence of Mr Chestnut, once having begun at a particular point, and having moved downhill, we do not think that that quarrying could then recommence at a much higher point than the first point and then move downhill to the first point. Such a procedure would also seem to be in conflict with condition (g).
90 It is not possible from the evidence to determine precisely where quarrying commenced, although it appears to have been on the lower half of Lot 2 The proposed method of quarrying proposed is fundamentally in conflict with what was envisaged by condition (f).
91 By moving uphill, the proposed extraction activities would move closer to the houses and groundwater bores of four adjoining neighbours who purchased their properties after February 1979. If the extraction area had commenced higher up, these neighbours would have been able to decide whether or not to buy so close to the quarrying. Mrs Wilson said that if the quarrying were to now move uphill, her family would have to sell their home.
92 Condition (f) has to be read with the other conditions. Condition (f) would also have had to be read in conjunction with an approved plan showing the method of working the site as required by condition (b).
Condition (g) – run-off; 0.2% gradient of channels to undisturbed watercourses; progression of work downslope
93 This condition reads: “ Graded banks (maximum channel gradient 0.2%) to be constructed immediately above the working site and thereafter every 60 m downslope as work progresses; all banks to outlet into the undisturbed watercourses . ”
94 Mr Chestnut interpreted this condition as operating to require such a graded bank to be constructed above the working area so that run-off would be prevented from flowing through that working area. It was his interpretation that a sequential downhill operation of the quarrying, when coupled with protection of the watercourse discussed above in the context of condition (c), together with its buffer strips, would have provided an appropriate water pollution protection regime by the standards of the time.
95 He also gave evidence to the effect that there was a significant limitation on the depth of excavation that was possible in accordance with this condition. If the land outside the buffer zones of the watercourse were lowered too much, then graded banks with a channel gradient of 0.2% would not be able to drain runoff by gravitation to the watercourse.
96 We note that it was also Mr Curtis’s evidence (p 6 of ex. C) concerning the 20 m buffer strips on either side of the bank of any watercourse that:
- In relation to erosion and sediment control such buffers act as a filter strip providing treatment of sediment laden run-off .
98 During the hearing, Mr Chestnut was asked if he would undertake a recalculation on the same basis but applying his methodology to the totality of the site. He did so and produced calculations which, based on this methodology, showed that extraction from the whole of the site would result in a permissible extraction of 380,000 m 3 .
99 Mr Curtis was asked to consider the results of this further calculation and concluded that, with a redesign of the graded banks required by condition (g), a permissible extraction of 740,000 m 3 would result if the Chestnut methodology was applied. However, he made it expressly clear that in undertaking these calculations, he did not accept the validity of the underlying methodology.
100 It was Mr Curtis’s evidence that this condition should be read as relating to the rehabilitation process and not something to be applied sequentially during the quarrying process itself and not intended to act as a limitation on it.
101 In addition, it was claimed on behalf of the first applicant that Chestnut methodology would not have resulted in an economically viable quarry. However, we note in passing that the original applicant, Mr Fagan, was apparently content to have a low-scale operation, having regard to the plan he submitted to the council (par 26 above) showing the area of extraction to be 4.047 ha, to a depth of only 6.096 m. In any event, consistently with the position we have adopted relation to extraneous material in the interpretation of the terms of the consent, we do not consider that we should imply into the conditions factors relating to economic viability.
102 Without needing to choose between the alternative and significantly different results of application of condition (g) pursuant to the Chestnut methodology, we are satisfied that this methodology, however applied, is an appropriate interpretation of this condition. We reject Mr Curtis’s view that condition (g) applied only at the rehabilitation stage. Had the interpretation contended for by the first applicant been intended, condition (g) would have been very differently worded.
103 The proposed future method of extraction envisaged by the modification application (par 86 above) is clearly inconsistent with this interpretation of condition (g). A significantly greater quantity of material (between 2 million tonnes and 4 million tonnes) would be extracted under the proposed modified consent than the quantities (at pars 98 and 99) calculated by either Mr Curtis or Mr Chestnut (using the Chestnut methodology). We are therefore satisfied that, with respect of this condition, the proposed modification would result in a substantially different development to that permitted by the consent.
Condition (h) – slope of batters
104 This condition required that all batters are not to be steeper than 20% in gradient. In their evidence, Mr Chestnut and Mr Curtis construed the word “ batter ” as requiring significantly different constraints on quarrying activities because of this condition. It was Mr Chestnut’s view that this condition should be construed so as to require the gradient limitation to apply to the working faces of the quarrying activity as well as other slopes.
105 It was Mr Curtis’s opinion that this condition related to the finished slope of rehabilitated areas after quarrying had been completed and moved on. It was also Mr Curtis’s evidence that this was the ordinary use of the word “batter” as he would apply it in his day-to-day professional activities.
106 There is some doubt as to whether the meaning of the word “batter” was properly the subject of expert evidence. “The construction of an ordinary word…is not a matter of expert evidence.” Leichhardt Municipal Council v Daniel Callaghan Pty Ltd (1981) 46 LGRA 29 at 31 per Hutley JA.
107 We are of the opinion that the word “batter” in condition (h) applies to the graded banks mentioned in conditions (g) and (i). It could also be applied, less commonly, to the working face of an extraction area.
108 Nevertheless, we have accepted the calculations in condition (g) above that were made on the assumption by the experts that the extraction areas would have “near vertical upslope quarry faces” (ex . 10).
Condition (i) – stockpiling of topsoil
109 Nothing of substance arose from this condition in these proceedings.
Condition (j) – prevention of water ponding
110 This condition provides that all disturbed areas are to be re-shaped such that no waterponding occurs on the extraction site . The respondent urges us to construe this condition as containing an absolute prohibition on the occurrence of waterponding on the site. In contrast, the first applicant submits that this condition requires that there should be no waterponding after the reshaping has been undertaken as part of the rehabilitation process. We consider that the first applicant’s contention is probably the appropriate one.
Condition (k) & (l) – landscaping and landscape maintenance
111 Although it was the evidence of Mr Chestnut that these conditions would not reflect contemporary good practice, it is agreed by the parties that nothing arises from them in these proceedings concerning the satisfaction of the relevant test pursuant to s 96. However, Ms Duggan submitted that the rectification of defects in these rehabilitation conditions proposed by the modifications in the application were a factor to be taken into account as contributing to the public interest being in favour of approving the modifications when testing the application against s 79C of the Act.
Condition (m) – bank guarantee
112 Although the earliest documentation available from the council’s file only dates satisfaction of this condition from 1985, it is agreed by the parties that nothing relevantly arises in these proceedings.
The discretion to approve
Introduction
113 The site is zoned 1(a) Rural (Agriculture) under IDO 122. The table of uses for this zone show that extractive industries are permissible with consent. IDO 122 defines extractive industry in a fashion that clearly encompasses not merely the present quarrying activity but also the ancillary processing activities being carried out on the site.
114 Ms Duggan submitted to us that, as the first applicant’s construction of the present consent permits quarrying across the totality of the site without limitation as to depth, the only fundamental effect of the modification application is to modernise the conditions – including the importation into the consent of better environmental and rehabilitation management of the site. She submitted that, as a consequence, this is not only in the public interest in a broader sense but is also in the interests of the immediate neighbours of the quarry.
115 We do not accept Ms Duggan’s submission, because we have held that there were limitations in the consent: there was to be no disturbance to the vegetation or bushland that existed within the 20 m wide zone either side of the banks of the watercourse or within the 20 m boundary buffers. Also, conditions (c) and (g) in their practical application would have placed some limitation on the depth of excavation outside the buffer zones. We do not agree with the first applicant’s submission that the proposed modified development would be in the interests of the neighbours. Overall, a development carried out in accordance with what we have held to be the development envisaged by the conditions of the consent would be likely to have had significantly less adverse impacts.
The broader public interest
116 Ms Duggan submitted that there was a broader public interest to which we should have regard relating to the supply of sand for the Sydney and Central Coast building markets. In support of this proposition, one of the appendices to Mr Chestnut’s statement of evidence is a draft report from the New South Wales Department of Mineral Resources entitled Supply and Demand for Construction Sand in the Sydney Planning Region . The report is dated May 2001. In describing the various sand resources available within the region, the draft report comments that the present site produces about 50,000 tonnes of sand per annum and has reserves of about 4 million tonnes . It also notes that no additional reserves have been identified adjacent to this quarry. The draft report also discusses, when dealing with the Somersby Plateau as a potential source for medium-term satisfaction of this demand, a number of constraints that would act as barriers to the establishment of new quarries in this area. The draft report also identifies the Somersby Plateau as one of the areas which have the potential to become reliable, long-term sources of construction sand within the planning region .
117 In support of the broad conclusions contained in this draft report, Ms Duggan tendered a letter dated 14 August 2003 from the Acting Manager, Industrial Minerals and Land Use of the New South Wales Department of Mineral Resources. The relevant portion of this letter reads:
- The Somersby Plateau contains extensive resources of friable sandstone. Owing to land use and environmental constraints, however, much of this resource is unlikely to be available for extraction thus restricting the potential to extend existing operations or develop new sand extraction operations in the area.
In the Departments opinion the quarry makes an important contribution to the construction sand supply of the Central Coast, this amount of material would otherwise have to be obtained from neighbouring areas which would lead to increased transportation costs which would ultimately have to be borne by the consumers, the resulting increased truck traffic, will also have attendant adverse impacts on the wider community. Furthermore the quarry has the potential to become a supplier of sand to the Sydney market.
Provided that extraction can be undertaken in an environmentally acceptable manner, the department considers Rindean quarry to be an appropriate use of a valuable resource.
119 The above departmental letter has an important proviso— “that extraction can be undertaken in an environmentally acceptable manner.”
120 Section 79C of the Act effectively provides the statutory basis for us to test whether, in fact, the modification application does provide for an operational regime which would satisfy such a proviso.
Impacts on neighbours
121 Amongst other things, this section requires us to take into account public submissions concerning the application. There were letters and a petition against the proposed modified development. The petition, signed by 88 persons (most of whom are residents of Somersby), stated that the residents strongly objected to the s 96(2) application to vary the conditions of the development consent. The petition further said that council should be enforcing its original conditions of consent. In addition, we heard oral evidence from three immediately adjoining neighbours. Each of these neighbours had three concerns that related to the expansion of quarrying activities:
· visual impacts;
· dust pollution; and
· impact on groundwater supplies.
Visual impacts
122 Although the perspectives from which the quarrying activities are viewed by each of the neighbours differ, their concerns as to visual amenity are broadly similar. They relate to the inadequacy of buffering of the quarry leading to visual intrusion in the near to mid views from the dwellings – this being a greater impact to Mr Lynch and Mrs Wilson than to Mr Pickup. The residents also complain that the removal of vegetation from the site has had the effect of opening up the middle-to-distant view of the freeway. Further, they point to the expected possible life of the quarry of some 40 years as, itself, being an unacceptable timeframe for them to be subjected to this visual intrusion.
123 There would be only partial rehabilitation during stages 1, 2 and 3. The rehabilitation of the proposed large quarry areas (up to 80 m deep, in the future development area of stage 3), near the residents’ houses, would be undertaken at the end of the life of the quarry.
124 The original condition of the eastern half of the subject land at the date of the consent was mostly bushland (par 7 above). Because of the failure of successive quarry-operators to observe the requirements of the conditions of the consent, massive changes were made to the landform, as described earlier (pars 8-9), thus causing adverse visual impacts for the neighbours.
125 If the conditions of the consent had been observed, there would have been retained a vegetated and bushland corridor (along the former watercourse and the buffer zones adjoining its banks) running through the central eastern half of the subject land to the eastern boundary. This corridor would have been at least 40 metres wide, stretching for a distance of about 320 m. As well, the vegetation or bushland in the 20-m buffer zones around the boundaries would have been kept in an undisturbed state. Additionally, the implementation of condition (g) would have resulted in a smaller scale operation outside the undisturbed buffer zones.
126 Because the proposed modified development does not appear to adequately deal with the visual impacts, we would not approve the proposed modified development, if that option were available to us.
Dust
127 With respect to dust impacts on neighbouring properties, the s 96 consent modification report deals with dust issues as follows:
- Although there is no dust deposition data for the site, the air quality of the area is considered typical of similar rural environments and is influenced by wind blown dust from agricultural and quarrying activities and from unsealed roads.
Dust control measures at the quarry include:
· all loads are covered prior to product trucks leaving the site;
· speed restrictions apply on-site four roads to minimise dust generation;
· water sprays are fitted on the processing plant;
· stockpiles of product sand are moist as a result of washing;
· rehabilitation of worked areas, visual and noise bunds has been undertaken; and
· the vegetation around the site, particularly along the northern boundary reduces the impact of windblown dust of adjoining landowners.
- The proposed consent modifications will not impact on current dust management practices.
129 There is no condition of consent that deals with any ameliorative measures which might be required to deal with dust from the quarrying process. It is not proper for us to speculate on what, if anything, may have been required by the Chief Town Planner in a plan pursuant to condition (b). The current Environment Protection Licence Number 11295 of the EPA Contained in the statement of evidence of Mr Curtis (ex. C annex C). deals with dust control with two conditions at 4.03. On the assumption that the EPA conditions have been observed by the operator, it is the evidence of the neighbours that they have not had sufficient effect to eliminate adverse impacts on them. The dust impacts could increase as the quarrying activities move closer to the houses in stage 3. If this were to occur, it would be unacceptable.
Groundwater
130 On the evidence before us, there is a degree of uncertainty as to the impact of quarrying activities on the groundwater bores of the neighbouring property owners.
131 The observations of each of the three property owners was that the bores were no longer as reliable as they had been in the past particularly during the summer months. Each of these bores is drilled to approximately 30 m below the surface.
132 Mr Curtis gave evidence that he had had access to the original testing results at the time of the sinking of each of the three neighbours bores. It was his evidence that this was undertaken by what he described as the bailer method. This involved using some form of bailing container to draw water thus giving some calculation on available rate of water extraction from each bore. Mr Curtis also gave evidence that he had caused pump testing to be undertaken of Mr Smith's bore, located near to quarry faces on the subject land. He said that this test showed a low but sustainable 0.1 litres per second. It was his evidence that it was not possible to make a direct comparison between his pump testing and that which had been undertaken by the bailer method.
133 It was Mr Curtis’s evidence that there has been increasing development in the catchment above the aquifer and increasing numbers of applications were being made to extract water from it. It was his evidence that bores were now commonly being sunk to 170 m in order to obtain a satisfactory and completely reliable water supply from this aquifer.
134 It was common ground between Mr Chestnut and Mr Curtis that the site is at the eastern edge of the aquifer from which these bores obtained water. It also appeared to be common ground that there were several water-bearing strata which had been intersected by the present quarrying operations and these were pointed out in the quarry face on the view. It was also not disputed that water flowed or seeped out of this edge of the aquifer. As a consequence of this evidence, it follows that the bores of the neighbours are either directly or obliquely upstream in the aquifer from the site’s quarry extraction area.
135 What was in dispute concerning the groundwater extraction is the extent, if any, of the impact of removal of large volumes of sandstone in close proximity to these bores. In effect, as we understand the argument, the proposition advanced by the council is that the sandstone effectively acts as a dam which retains water which can be extracted through the bores. On this theory, if the sandstone is removed, the impediment to water flowing out of the aquifer is removed and the water is thus not constrained for potential extraction. The consequence is that the available volume is less and the pumpable head standing in the shaft of the bore is lowered.
136 The evidence on behalf of the first applicant, on the other hand, is that such an effect will be minimal or non-existent and that, because the quarry face is downstream from the bores, there is no impact by the quarry on the rate of replenishment of the bores from the main body of the aquifer.
137 During the course of the view, we were able to observe seepage from the rock faces of the high benches of the present quarrying activities. We also observed fast-flowing water entering one of the detention areas. In his oral evidence, Mr Curtis agreed that this flow of water was a mixture of rainwater plus water from the upper aquifer.
138 This aspect of the case is the one which we have found most difficult to determine, and we are unable to resolve the conflict in evidence on this issue. The issue may need to be reconsidered in the light of additional specialist expert evidence in relation to the claims of the residents, taking into account particularly the proposed large and deeper excavations, where material would be removed closer to the bores of the neighbouring landowners. However, we are satisfied on the unchallenged evidence of the neighbours that the bores provide an essential reserve to top up domestic-consumption water supply, which goes beyond merely water supply for gardening or outdoor use. Town water supply is not available to these properties. There is no evidence before us that it is likely to become available.
Conclusion
139 We conclude that there are three significant impediments to approving the application for modification. These are:
(1) In the absence of an approved plan in accordance with condition (b) of the consent, we are not satisfied as to what the approved method of working the site was. It is not appropriate to modify the consent by deleting condition (b) and by now approving the applicant’s plans in figures 1.3, 1.4, 1.5, 3.3, 3.4 and 3.5 of the S. 96 Consent Modification Report (ex. A). The approval of the applicant’s plans would result in a substantially different development from that envisaged by other conditions of the consent.
(2) We are satisfied that the proposed modifications are substantially inconsistent with each of the two elements of condition (c) of the consent, requiring no disturbance of the 20-m buffers along the boundaries and along the banks of the former watercourse. As a consequence, the development, which would result if the modifications were approved, would not be substantially the same as that approved by the consent.
(3) We are satisfied that the proposed modifications are substantially inconsistent with each of conditions (e), (f) and (g) of the consent, when those conditions are separately considered, and certainly when they are read together. We are further of the opinion that the development, which would result if the modifications were approved, would not be substantially the same as that approved by the consent.
140 We are also satisfied that it would not be appropriate as a matter of discretion to approve the modification application, if that option had been available to us.
141 During the course of the hearing, it became apparent that the statutory requirements for notification of the proposed modifications had not been satisfied. The parties agreed that if we concluded that the appeal should be dismissed, it would not be necessary to adjourn the proceedings to enable the modification application to be re-advertised.
Orders
142 Accordingly, the orders of the Court are:
1. The appeal is dismissed.
2. Development Application No 15525/2002 to modify the consent of 9th February 1979 for an extractive industry at Lot 2 DP 10982, 620 Wisemans Ferry Road, Somersby is refused.
3. The exhibits, other than exhibits 1, A and Appendix 3 of D, may be returned.
_____________
A J Nott
Commissioner of t he Court
________________
T J Moore
Commissioner of the Court
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