Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council

[2007] NSWLEC 55

Land and Environment Court

of New South Wales

CITATION:

Rocla Pty Ltd v The Minister for Planning and Sutherland Shire Council [2007] NSWLEC 55

PARTIES:

APPLICANT
Rocla Pty Ltd

FIRST RESPONDENT
Minister for Planning

SECOND RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):

10447 of 2005

CORAM:

Talbot J - Roseth SC

KEY ISSUES:

Development Application :- Sand extraction, weight to be given to planning objectives and policy.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 5, s 29,
s 76A(7), s 79C, Schedule 6 s 89, s 90(A), s 91, s 91(1), s 91A(2), s 91A(5)(b), s 93, s 119.
Land and Environment Court Act 1979 s 39(2), s 39(6A), s 39 (6)(a), s 93.
National Parks and Wildlife Act 1974 s 90(1).
Sydney Regional Environmental Plan No. 17 - Kurnell Peninsula (1989) cl 23B(1), cl 2, cl 9(3), cl 25.
Threatened Species Conservation Act 1995.

CASES CITED:

BGP Properties Pty Ltd v Lake Macquarie City Council (2004) NSWLEC 399;
Codlea v Byron Shire Council (1999) 105 LGERA 370 ;
Goodwin v Phillips (1908) 7 CLR 1;
Mobile Oil Australia Ltd v Baulkham Hills Shire Council (No.2) (1971) 28 LGERA 374 ;
Stockland Developments Pty Ltd v Manly Council (2004) 136 LGERA 254 ;
Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195.

DATES OF HEARING:

27/11/06 to 30/11/06, 04/12/06 to 08/12/06, 11/12/06 to 14/12/06.

 
DATE OF JUDGMENT: 

14 February 2007

LEGAL REPRESENTATIVES:

APPLICANT
M G Craig QC
W Henry (Barrister)
SOLICITORS
Blake Dawson Waldron

FIRST RESPONDENT
P R Clay (Barrister)
SOLICITORS
Department of Planning

SECOND RESPONDENT
T F Robertson SC
P W Larkin (Barrister)
SOLICITORS
Woolf & Associates

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

14 February 2007

10447 of 2005 Rocla Pty Limited v the Minister for Planning and Sutherland Shire Council.

JUDGMENT

1 Talbot J: The applicant Rocla Pty Ltd (Rocla) is part of the AMATEK Group an Australian based international building products company with extensive interests throughout Australia. On 17 November 2004, Rocla made a development application seeking the consent of the first respondent, the Minister, as the consent authority for a proposal to use Lot 8, DP 586986 at Captain Cook Drive on the Kurnell Peninsula (the site) for a development described in the Environmental Impact Statement (EIS) prepared in support of the application as follows:-

(i) Sand extraction, processing and production of a range of sand products.
(ii) Progressive backfilling of the extraction voids with virgin excavated natural materials (VENM)
(iii) Development of the final landform to allow for the progressive release of land within a light industrial park. This would entail pre-loading of the backfill to sufficiently consolidate the lots for construction of industrial buildings

2 The land has been owned by Rocla since 2002 and comprises an area of 34.37 ha with direct access to Captain Cook Drive at its western extremity. The site is bounded to the south and west by a property owned by Besmaw Pty Ltd where Rocla currently extracts fine sand by dredge from below the fresh water table. It is then pumped to a processing plant on site where the sand is screened, washed and dewatered to yield concrete sand, plaster sand, fill sand or other products for use in factory manufacturing, pipelining or various landscape products.

3 Under Rocla’s preferred option extraction of sand is proposed from a 26 ha area to yield approximately 4.5 million tonnes of sand. That may require between 5 and 10 years of operation. The EIS states that progressive landform, reconstruction and pre-loading after the completion of sand extraction and processing would continue from about the 6th year. Rocla is therefore seeking development consent for a period of 20 years to allow flexibility to deal with market, operational and land settlement issues and the development of industrial lots for release.

4 The EIS identifies four options as follows:

Option 1: provides for extraction within approximately
(Recoverable Sand 75 per cent of the Project Site without common
Resource = 3.8 million boundary extraction with Lot 2 - maximum
tonnes) depth – 20 m AHD.

Option 2: provides for extraction within approximately
(Recoverable Sand 75 per cent of the Project Site with common
Resource = 4.5 million boundary extraction with Lot 2 – maximum
tonnes) depth 22 m AHD

Option 3: provides for extraction within approximately
(Recoverable Sand 63 per cent of the Project Site excluding the area
Resource = 2.8 million of native vegetation adjacent to the eastern tonnes) boundary maximum depth - 16 m AHD
Option 4: provides for extraction within approximately
(Recoverable Sand 63 per cent of the Project Site but excludes the
Resource = 3.5 million area of native vegetation near the eastern
tonnes) boundary and common boundary extraction with Lot 2 maximum depth - 22 m AHD

5 Rocla prefers the second option whereas if development consent is to be granted, notwithstanding its objection, the second respondent, Sutherland Shire Council (the council) advocates the third option.

6 For the purpose of landform reconstruction through backfilling, Rocla proposes to import a range of virgin excavated natural materials (VENM) to either re-process or blend with on-site sand products for placement into the void created by dredging. The VENM comprising sandstone, shale, siltstone and clay, would be placed into the void until a landform is created above water level. A compacted capping, approximately 3 m thick, would be constructed to provide a base for a subsequent light industrial park. Any application for development of the light industrial park will be submitted separately at a later date and does not form part of the present application.

7 The following is an overview of the main component statistics of the proposed development, taken from the EIS:-

Project Site Area 34.37 ha (84.9 acres)
Sand Resources: Total Resource on the Project Site = 8.4 million tonnes.
Resource in proposed extraction area = 4.5 million tonnes.
Comprising 1 million tonnes above 3m, AHD and
3.5 million tonnes below 3m, AHD.

Sand Extraction
Operations: Area of sand extraction = 26 ha
Extraction depth range = -4m, AHD to 22 m, AHD
Ecological and
Rehabilitation Issues: Area of native vegetation in eastern part of property =
4.3 ha.
Area of native vegetation in artificial wetland
area =0.65 ha.

Area of native vegetation to be removed = 3.9 ha
Area of native vegetation to be planted = 3.8 ha

Aboriginal Midden: Area of midden on the Project Site = 2.0 ha
Area of midden within road corridor = 0.16 ha
Area of proposed Lot covering the midden = 3.15 ha

Hours of Operation: Normal Operations:4:30 am Monday to 8:00 pm Saturday.

Normal Transportation: 4:30 am Monday to 10:00pm Friday.
4:30 am to noon Saturday.
Maximum 24 hours per day, 7 days per week.

Transport Levels: Average Daily Truck Movements: 418 (Weekday)
and 226 (Saturday).
Above Average Truck Movements: 504(Weekday) and 266 (Saturday)
(Please note that one truckload is equivalent to two truck movements, one in and one out).

8 Rocla anticipates that the opportunity may arise for sand extraction along the common boundary between the Besmaw land and the project site.

9 The topography of the site is dominated by the elongated mobile sand dune extending in an east-west direction across the site. The dune is advancing in a northerly direction at the rate of about 7 m to 8 m per year. The maximum elevation of the dune is approximately 20 m AHD. The surface topography of the dune fluctuates as the sand moves around the surface of the dune. It has a steep face to the north on its leeward side and gradually slops back to less than 4 m AHD on the southern windward side.

10 According to the EIS approximately 100,000 tonnes of sand would be extracted annually from the edge of the existing sand dune on the site and other areas above 3 m AHD. This extraction would take place by means of a front-end loader or excavator loading the sand into a off-road truck for transfer to the processing plant or dredge site or alternatively directly into a simple power-screen positioned next to the active extraction area.

11 The bulk of the sand however will be extracted by a dredge. Two cutter-suction dredges would be used ultimately; one for concrete sand and one for plaster sand. Each dredge would float on the pond and move down to levels of between – 4 m AHD and – 22 m AHD backward and forward across the pond extracting from the underwater face of sand.

12 Those parts of the existing sand dunes not removed by dry extraction would slowly slide into the pond as the dredging operation continues. The sand/water slurry would be pumped directly from the dredge via pipeline to the washing plants. The vegetated area cleared from time to time will uncover sufficient sand to extract for the following two to three months in order to limit the area of sand exposed.

13 No extraction is proposed in the area of the Aboriginal Midden on the site although compaction will occur for the purpose of the construction of a road at one point in the site where the midden is below the surface.

14 The development as proposed would progressively remove the majority of the vegetation from the extraction site, except for a 20 m strip of Swamp Oak forest and reed land to be retained along the eastern boundary. The 20 m strip proposed in the EIS and Species Impact Statement (SIS), prepared in support of the development application, would retain an area of 1 ha of native vegetation adjacent to the eastern boundary. Rocla proposes to progressively construct a total of 7 ponds on the project site to provide for both stormwater management and the creation of the wetland habitat similar to that which exists on the eastern part of the site. Based on an average of 4 m vegetation width around each pond, approximately 0.9 ha would be revegetated in this way. In addition it is proposed that approximately 3.8 ha of native vegetation will be established on the southern, western and northern perimeter and over the preserved Aboriginal midden and associated buffer. In the course of the hearing the proposed buffer along the eastern boundary was extended by 10 m up to 30 m with a commensurate increase in the area of native vegetation to be retained.

15 There is considerable debate regarding the presence of endangered ecological communities of vegetation on the site itself and the adjoining land to the northeast. For each of the relevant endangered communities the experts are in strong disagreement as to whether the identified species fall within the description in the determination by the Scientific Committee.

16 The Green and Golden Bell Frog, a threatened frog species, has been recorded on the subject land. Potential movement corridors for the frog have been identified on the site. According to the applicant, 4 of the 7 new pond-wetland areas will be specially designed to be suitable Bell Frog breeding habitat. Wetlands will provide additional foraging and diurnal shelter habitat. Vegetated corridors will be established along the northern boundary of the site.

17 Although the threatened species of Grey-Headed Flying Fox has been sighted on the subject land only to a limited extent, trees in the adjacent site owned by Sydney Water are used as a roost site for the fox. The council’s experts express a concern that a lowering of ground water level brought about by the proposed activities of Rocla on the subject site could have an impact on the roost site. Again the relevant experts disagree about the extent of the impact.

18 The potential loss of the mobile dune has generated significant local community concern on the basis that it allegedly has significant heritage and visual value. The Court convened a special session in a local community Hall at Kurnell to facilitate the giving of evidence by local residents and interested community groups.

19 Issues have been debated in relation to the effect on the levels of ground water as a consequence of the carrying out of the proposal. There are general issues in this regard as well as an issue regarding the effect of cl 25 of Sydney Regional Environmental Plan No 17 – Kurnell Peninsula (1989) (SREP 17), which is addressed in detail, later in the judgment.

20 The respondents, while not disputing that there is a substantial and important sand resource on the site, challenge the alleged critical importance of the resource and the applicant’s claim there will be a lack of alternative economical sources of supply in the future.

Relevant Planning Instruments and Policies

21 The Minister is the consent authority in respect of this development application, which is classified as State significant development, because it involves an extractive industry with an extraction rate in excess of 200,000 tonnes per year. The Development Application was lodged on 14 November 2004. Accordingly pursuant to s 89 of Schedule 6 to the Environmental Planning and Assessment Act, 1979 (the EPA Act), it is to be determined as if s 76A(7) had not been repealed as from the 1 August 2005.

22 Pursuant to Sydney Regional Environmental Plan No. 17 – Kurnell Peninsula, (1989) (SREP 17) the subject land is in zone 4(b) (Light Industrial Zone). Development consent is required for any development other than a purpose included in item 4 of the zoning table. Item 4 prohibits extractive industries (other than sand mining). Accordingly, development for the purpose of sand mining may be carried out within the zone, except as otherwise provided in the plan. Critically, cl 9(3) of SREP 17 provides:-

(3) Except as otherwise provided by this plan, the consent authority shall not grant consent to the carrying out of development on land to which this plan applies unless it is of the opinion that the carrying out of the development is consistent with the aims and objectives of the plan and the objectives of the zone within which the development is proposed to be carried out.

23 The general aims and objectives of the SREP in cl 2(1) relevantly include the following:-

(a) to conserve the natural environment of the Kurnell Peninsula and ensure that development is managed having regard to the environmental, cultural and economic significance of the area to the nation, State, region and locality,
(b) to apply environmental performance criteria which will ensure that the environment is not adversely affected by development,
(c) To promote, encourage and facilitate opportunities for commercial, industrial and tourist development consistent with the conservation of the unique ecological and landscape attributes of Kurnell Peninsula.

24 The particular environmental planning aims and objectives of the plan in cl 2(2) contain the following important relevant objective:-

(h) to control and progressively phase out sand mining and to facilitate the rehabilitation of degraded lands, and

25 The objectives of the 4(b) (Light Industrial Zone) are:

( a) to recognise existing industry and identify land suitable for light industrial development,
(b) to encourage and facilitate the establishment of suitable light industry so as to increase the local employment base,
(c) to ensure that development is compatible with the unique ecological and landscape attributes of the Kurnell Peninsula, especially the wetland areas and their environs, and
(d) to promote the orderly and economic development of land within the zone and to ensure that adequate provision is made for the supply of water and the disposal in an environmentally sensitive manner of all wastes and stormwater from the land.

26 Under cl 30 of the SREP 17 pursuant to s 29 of the EPA Act, development for the purpose of extractive industries (being sand mining) on land to which the plan applies is declared to be designated development for the purposes of the Act.

27 The presence of the Aboriginal midden on the site makes cl 23B(1) of the SREP 17 relevant. It provides:-

Development of known or potential archaeological sites
(1) The Council may consent to the carrying out of development on an archaeological site or potential archaeological site that has Aboriginal heritage significance only if:
(a) it has considered a conservation assessment of the impact of the proposed development on the site, and
(b) it has notified the Director-General of National Parks and Wildlife of its intention to do so and taken into consideration any comments received from the Director General within 28 days after the notice was sent, and
(c) it is satisfied that any necessary consent or permission required under the National Parks and Wildlife Act 1974 has been granted.

28 There is a significant issue regarding the effect of cl 25 of the SREP 17 which contains the following provisions:-

Department of Water Resources requirements
The Council shall not consent to the carrying out of development where:
(a) groundwater is abstracted for water supply purposes, or
(b) groundwater is recirculated for industrial purposes and returned to the aquifer, or

(c) groundwater or surface water is discharged as waste water into bores, unlined pits, channels or excavations,

unless arrangements for the proper utilisation and protection of this natural resource have been made that are satisfactory to the Department of Water Resources.

29 The proposal is classified as integrated development for the purposes of s 91 of the EPA Act. According to the Minister the following additional approvals are required:-

· An environment protection licence from the Department of Environment and Conservation (DEC) under the Protection of the Environment Operations Act 1997;

· A section 90 consent to destroy Aboriginal relics from DEC under the National Parks and Wildlife Act 1974;

· A groundwater supply licence from the Department under Water Act 1912;

· A permit to reclaim waters from the Department of Primary Industries under section 201 of the Fisheries Management Act 1994, and

· An approval from Sutherland Shire Council under section 138 of the Roads Act 1993.

30 General terms of approval have been provided under the Fisheries Management Act and the Roads Act whereas the approval bodies under other Acts have advised they are not able to provide general terms of approval for the proposed development.

31 Two major planning considerations arise. First, the respondents argue that the grant of consent to sand mining on Lot 8 would be inconsistent with the general objectives of SREP 17 to conserve the natural environment of the Kurnell Peninsula and the expressed particular aim of the plan to control and progressively phase out sand mining and to facilitate the rehabilitation of degraded lands.

32 Secondly, the first respondent says there has been a long standing policy by the State Government to phase out sand mining on the Kurnell Peninsula. The policy is claimed to be evidenced by a variety of documents inter alia as follows:-

1979	Kurnell peninsula Study
1980	Interim Development Order No. 33
1982	Sydney REP No. 3 – Kurnell peninsula
1985	Commission of Inquiry
1986	Commission of Inquiry
1989	SREP 17
2002	Statement of Intent
2004	Draft Botany Bay Strategy
2004	Minister’s Direction – draft amendment to SREP 17

33 In response to these arguments the applicant contends that the specific zoning of lot 8 reflects an intention for it to be subject to the particular use of sand mining which is consistent with the objectives of the zone to encourage and facilitate the establishment of suitable light industry. Moreover, it is not an objective of the 4(b) zone that sand mining be controlled and progressively phased out, whereas such an objective is expressly provided in other zones, such as the 7(b) zone. Furthermore, the Minister has not seen fit to actually either prohibit sand mining on the Kurnell Peninsula or to nominate a date by which it must cease notwithstanding the numerous amendments made to SREP 17 since it was made on 30 June 1989 including amendments made as recently as 2005. Rather, the applicant places emphasis on the aim and objective of controlling the use of land with a view to phasing out sand mining prior to the land being put to its long-term industrial use.

34 Accordingly, the applicant says that the reliance on a general aim and objective contained in SREP 17 that sand mining on the peninsula be phased out is misplaced. Further that the policy and the intent of the government must be seen to be reflected in and implemented by SREP 17 rather than the examination of statements, studies, repealed statutory instruments and a dated draft proposed amendment to SREP17 relied upon by the respondents.

35 Finally, the applicant supports the application by identifying the sand on the Kurnell Peninsula as a valuable asset thereby raising a wider public interest issue against any localised opposition to sand mining so that the proposed development is consistent with the objective in s 5(a)(ii) of the EPA Act, namely to promote the orderly and economic use and development of land.

36 The weight to be placed on the provisions of an environmental planning instrument was the subject of consideration by the Court of Appeal in Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) 129 LGERA 195 at 209 [81]:-

In any event, matters relevant to the public interest touching a particular application are not confined to those appearing in published environmental planning instruments, draft or final. Obviously such instruments carry great and at times determinative weight, but they are not the only source of information concerning the public interest in planning matters. The process of making such instruments is described by Beazley JA in Save the Showground for Sydney Inc v Minister for Urban Affairs and Planning (1997) 95 LGERA 33 at 42-44. Nothing in the Environmental Planning and Assessment Act stipulates that environmental planning instruments are the only means of discerning planning policies or the "public interest". For one thing, the government is not the only source of wisdom in this area. A consent authority may range widely in the search for material as to the public interest (see generally Shoalhaven City Council v Lovell (1996) 136 FLR 58 at 63 ; Patra Holdings Pty Ltd v Minister for Land & Water Conservation (2001) 119 LGERA 231 at 235).

37 In BGP Properties Pty Ltd v Lake Macquarie City Council (2004) NSWLEC 399, McClellan CJ accepted the conventional approach established in Mobile Oil Australia Ltd v Baulkham Hills Shire Council (No.2) (1971) 28 LGERA 374 at 379, namely the fact that a particular use may be permissible is a neutral factor in giving consideration to whether development is appropriate, but then made the following observations at [117] to [119]:-

In the ordinary course, where by its zoning land has been identified as generally suitable for a particular purpose, weight must be given to that zoning in the resolution of a dispute as to the appropriate development of any site. Although the fact that a particular use may be permissible is a neutral factor (see Mobil Oil Australia Ltd v Baulkham Hills Shire Council (No 2) 1971 28 LGRA 374 at 379), planning decisions must generally reflect an assumption that, in some form, development which is consistent with the zoning will be permitted. The more specific the zoning and the more confined the range of permissible uses, the greater the weight which must be attributed to achieving the objects of the planning instrument which the zoning reflects ( Nanhouse Properties Pty Ltd v Sydney City Council (1953) 9 LGR(NSW) 163; Jansen v Cumberland County Council (1952) 18 LGR(NSW) 167). Part 3 of the EPA Act provides complex provisions involving extensive public participation directed towards determining the nature and intensity of development which may be appropriate on any site. If the zoning is not given weight, the integrity of the planning process provided by the legislation would be seriously threatened.

In most cases it can be expected that the Court will approve an application to use a site for a purpose for which it is zoned, provided of course the design of the project results in acceptable environmental impacts.
However, there will be cases where, because of the history of the zoning of a site, which may have been imposed many years ago, and the need to evaluate its prospective development having regard to contemporary standards, it may be difficult to develop the site in an environmentally acceptable manner and also provide a commercially viable project.

38 Arguably the range of permissible uses in the subject 4(b) zone is far reaching and general in the context that any purpose is permissible with consent other than a purpose that is actually prohibited. Conversely, given its specific exclusion from the prohibited use of extractive industries the only actual use that is recognised in the Table as permissible is sand mining. Nevertheless, the cogent reasoning of the former Chief Judge demonstrates that it is a question of weight that should be given to the zoning as a reflection of the objects of the planning instrument. Accordingly, the zoning of the land that overtly permits sand mining must be considered as one of the objects of the plan. Due weight must also be given to the aim of consistency with the aims and objectives of the SREP and the zone as required by cl 9(3).

39 An objective to phase out and control a particular form of development does not necessarily lead to prohibition. I agree with the submission put by Mr Clay on behalf of the Minister that “the notion of phasing out must mean an acceptance that the sand resource at Kurnell need not be, and may not be, fully utilised.” On the other hand the notion recognises the prospect of an orderly progression to ultimate cessation over time. It is a question of acting consistently with the aims and objectives of the plan derived from a consideration of all its provisions including the power to grant a new consent.

40 The first respondent places reliance upon the observations, also made by the former Chief Judge in Stockland Developments Pty Ltd v Manly Council (2004) 136 LGERA 254 at 273 [92] as follows:-

…the matters which are relevant when determining the weight to be given to a planning policy adopted by a council are as follows:

· the extent, if any, of research and public consultation undertaken when creating the policy;

· the time during which the policy has been in force and the extent of any review of its effectiveness;

· the extent to which the policy has been departed from in prior decisions;

· the compatibility of the policy with the objectives and provisions of relevant environmental planning instruments and development control plans;

· the compatibility of the policy with other policies adopted by a council or by any other relevant government agency;

· whether the policy contains any significant flaws when assessed against conventional planning outcomes accepted as appropriate for the site or area affected by it.

41 Mr Clay recognises that the policy to phase out sand mining on the Kurnell Peninsula has not found its way into any planning regime as a prohibition on sand mining. Nonetheless, it is the Minister’s position that it must be the case that granting consent to this application would be antipathetic to the notion of phasing out sand mining, irrespective of how it is expressed. He says it is evident from the variety of documents from 1980 through to the making of SREP 17 and the draft amendment to SREP 17 that was formulated in 2004, that there is an intent to provide for an end to sand extraction operations in 2010.

42 It hardly needs to be stated that, in the context of cl 2(2)(h) of SREP 17 together with the emphasis on conservation, performance criteria and consistency in respect of the self-evident environmental, cultural, economic, ecological and landscape significance and attributes of the Kurnell Peninsula area expressed in the SREP, it is necessary the proposed development be carefully considered by taking account of all those matters notwithstanding the recognition of sand mining as a use permissible with consent. Although the Court on appeal is vested with the powers and obligations of the consent authority, that alone does not elevate a policy of that authority to a higher ranking in the matrix of matters that must be considered. The court is not a policy maker in the initial and true sense. Nevertheless, it is obliged to have regard to and apply a well developed, readily recognised and consistently applied policy that is compatible with the provisions of applicable statutory instruments and with the generally accepted relevant planning principles and standards. The evidence of the manifestation and application of the alleged policy of phasing out sand mining at Kurnell, beyond its expression in the objectives of SREP 17, is not categoric to the point of being formally adopted as a directive or imperative statement.

43 In the 1979 study, the primary issue identified was whether the economic benefits of continued exploitation of the sand resources on the peninsula outweighed the environmental benefits to be derived from a limitation or cessation of sand mining. The conclusion in the study was that having regard to the serious effects on the regional economy if there was a sudden and complete termination of sand extraction, the plan for Kurnell should be to ensure a continuing supply of industrial sand to Sydney for a transitional period of approximately 20 years.

44 When the Kurnell Planning Scheme was placed on exhibition in March 1980, the Minister also made Interim Development Order No. 33 (IDO 33) which prohibited interim development other than development that would not be in contravention of the scheme in course of preparation. Extraction of sand was permissible with consent within the proposed Non-urban 1(e) - Extractive Industry zone.

45 Sydney Regional Environmental Plan No. 3 (Kurnell Peninsula) was made on 15 June 1982. SREP 3 varied IDO 33. Extractive industries were prohibited in the industrial zones. The REP related only to specific areas of the peninsula and excluded certain areas where the future of sand mining remained to be determined.

46 In a report to the Minister for Planning and Environment following an inquiry in respect of another site at Kurnell, pursuant to section 119 of the EPA Act, a Commission of Inquiry noted in February 1985 that sand mining at Kurnell had for some years been a matter of controversy. It was also noted that the main purpose of the NSW Government appears to have been to wind down sand extraction at Kurnell generally and to see strict controls over any limited future mining that might be allowed.

47 In a report dealing with options open to the Minister in relation to the future of adjacent lands at Kurnell in April 1986, Commissioner Woodward noted that the phasing out of sand mining and environmental control of extraction during the phasing out period was an objective that needed to be met following discussions reflecting “the conservation and environmental values espoused by the Government through the Minister for Planning and Environment.”

48 SREP No. 17 - Kurnell was made in 1989.

49 A Draft Management Framework for Kurnell land was drafted as a targeted strategic plan of the Botany Bay Strategy in February 2004. It contains a discussion concerning the timeframe to end sand extraction on the peninsula. That the remaining sand dune areas should be protected by ending sand extraction in accordance with the objectives of SREP 17 is encapsulated in one of the guiding principles of the strategic plan. The framework is stated to be formulated with the assistance of the Botany Bay Strategy Advisory Committee established to guide decision-making about land use on the Kurnell Peninsula. A number of factors that are said to predicate the need to end sand extraction are identified together with the need to understand the financial implications. A Draft Action Plan included action to review statutory planning instruments to reflect the time frame for the phasing out of sand extraction operations. I have not been made aware that the draft document was ever finalised.

50 On 20 May 2004 the Minister directed the Department of Infrastructure Planning and Natural Resources (DIPNR) to prepare a draft amendment of SREP 17. The Minister approved the scope of the amendment on 22 June 2004. A discussion paper on the Botany Bay Strategy May 2004 was placed on exhibition. Advice was given to the Minister over the signature of the Executive Director and Director General of the Department that:-

· The REP cannot prohibit sand mining without giving rise to existing use rights. This is a very technical planning issue that some agencies, Councillors and the media are unlikely to be fully across.

51 One of the objectives of the draft amendment was stated to be:-

· Prevent new sand extraction operations operating beyond 2010 (but note that it does not have the power to prohibit existing operations without giving rise to existing use rights – implications discussed later in this brief).

52 The discussion in the brief to the Minister canvassed options for phasing out extraction of sand operations without triggering existing use rights. The options included negotiations with land owners, court action, special legislation and acquisition of land. The Court has not been made aware of any further action.

53 Rocla has been advised of the Government’s intentions and the implications for the current proposal but nevertheless decided to proceed with the development application. The Court must determine what weight is to be given to the so-called long standing policy by the State Government.

54 Finally State Environmental Planning Policy No. 71 – Coastal Protection has been considered by the experts. Mr Craig QC, who appears for the applicant, correctly points out that neither respondent relies on its provisions in the statement of issues. Moreover, in any event, the instrument does not raise for consideration any matter that does not already fall for assessment in the appeal.

The issues

55 Following detailed assessment, the Minister determined to refuse the development application on 24 April 2005 for the following reasons:-

(a) The proposed development is inconsistent with the relevant aims and objectives of SREP 17;
(b) The Minister is not satisfied that the necessary consent under the National Parks and Wildlife Act 1974 for the proposed development would be granted, and is therefore unable to grant consent to the carrying out of the proposed development under cl 23B of SREP 17;
(c) The DIPNR is not satisfied that suitable arrangements for the proper utilisation and protection of natural groundwater resources have been made, and the Minister is therefore unable to grant consent to the carrying out of the proposed development under cl 25 of SREP 17;
(d) the requirements of State Environmental Planning Policy No 55 – Remediation of Land have not been adequately addressed;
(e) the proposed development is likely to have unacceptable environmental impacts; and

(f) the proposed development is not in the public interest.

56 Each respondent filed a Statement of issues. The following issues emerged as salient during the hearing:-

· Is a 1965 consent extant?

· Is there power to grant consent despite clauses 23B and 25 of SREP 17?

· Is the impact on groundwater acceptable?

· Is the impact on endangered ecological communities acceptable?

· Is the impact on threatened fauna acceptable?

· Is the visual impact on the landscape of the Kurnell coastal dunes acceptable?

· Is the proposal consistent with the objectives of SREP 17 and SEPP 71?

· Is the proposal in the public interest?

57 The Minister has grouped the issues addressed on his behalf as follows:-

1. Planning/policy including the sand supply market.
2. Heritage / Visual impact.
3. Legal and factual issues relating principally to the construction of clauses. 23B and clause 25 of SREP 17.
4. The impact on groundwater in the context of clause 25 of SREP 17.

58 The second respondent supports each of the issues addressed and arguments raised by the Minister but specifically deals with the following issues in detail: -

1. The effect of cl 25 of SREP 17.

2. The alleged unacceptable impact on four endangered ecological communities:
i) Swamp Oak Floodplain Forest of the NSW North Coast, Sydney Basin and South East Corner bioregions (Swamp Oak Forest);
ii) Swamp Sclerophyll Forest on coastal floodplains of the NSW North Coast, Sydney Basin and South East Coast Corner bioregions (Swamp Sclerophyll Forest)
iii) Sydney Freshwater Wetlands in the Sydney Basin bioregion (Sydney Freshwater Wetlands); and
iv) Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner bioregions (Coastal Saltmarsh).


3. The alleged unacceptable impact on the Grey Headed Flying Fox.

4. The alleged unacceptable impact on the Green and Golden Bell Frog.


The 1965 consent

59 On 15 April 1965, the State Planning Authority of NSW granted a development consent to Allsands Pty Ltd. The consent authorised interim development by the extraction of sand from part portions 2 and 3 Parish of Sutherland Captain Cook Drive Kurnell (including land now comprised in the subject Lot 8) subject to conditions. There is some contention as to whether the company entered into an agreement with Sutherland Shire Council, satisfactory to the State Planning Authority, that it undertake to meet the conditions of consent as required by condition 7 of the approval. The applicant argues that either the evidence establishes the agreement was made or that the Council is estopped from asserting to the contrary against the interests of any successor to Allsands as a consequence of its subsequent conduct by entering a further agreement in 1968. Furthermore, as a matter of construction the making of the agreement was not prerequisite to the validity of the 1965 consent. The applicant also denies the claim by the second respondent that development was not commenced under the 1965 consent.

60 It is not the role of the Court to make a formal finding of validity or otherwise in relation to the standing of the 1965 consent. It is relevant nevertheless to appreciate that the consent granted in 1965 is on its face inconsistent with the terms of the 1968 consent agreement so that it is not unreasonable to assume the 1965 consent was replaced in 1968. The present application seeks to extract well below the levels contemplated in 1965 and 1968. In my view it is not a relevant consideration to compare the environmental impact that might be caused if an earlier consent is implemented with the possible consequences of granting consent to a new application. It is the role of the consent authority to consider the merits of the application before it and to make an assessment based on the evidence in respect of the relevant issues.

61 There is nothing in s 79C of the EPA Act or elsewhere which allows the Court exercise its discretion to grant consent (in this case, at least, virtually uniformed) on the basis that one option would be the lesser of two evils. Moreover, the applicant expressly states that the submissions made on its behalf in respect of town planning considerations do not depend upon the validity and/or substantial commencement of development under the 1965 consent. According to Mr Craig the import of the 1965 consent is (that subject to the confinement of the area to be marked; the maintenance of then natural surface levels at certain points; a specification for the finished slope of any excavation below the existing natural surface was not to exceed 1 vertical on 10 horizontal and the stipulation that excavation may not go below reduced level 10 feet on Standard Datum) it permits the removal of the sand dune on Lot 8. Whether or not that removal should occur is an issue to be decided under current circumstances and without reference to the effect of the earlier consent whatever its status.

62 The 1965 consent in its original form, or as modified in 1968, will not be taken into account by the Court. It is an irrelevant and extraneous consideration.

Groundwater

63 The experts on groundwater are: Mr Peter Dundon for the applicant; Mr Colin Mackie, for the first respondent; and Mr Christopher Jewell for the second respondent; all of them hydrogeologists. The three experts reached a high degree of agreement. Mr Michael Williams, who is Principal Hydrogeologist of the Science and Information Division of the Department of Natural Resources, also gave evidence. His evidence was not in the interest of any party. His role in the proceedings was to explain the Department’s position in relation to cl 25 of SREP 17.

64 The three aspects of groundwater to which the experts turned their attention were groundwater levels, flows and contamination. While groundwater contamination was not formally included within the scope of issues to be addressed, it was nevertheless a topic on which the experts expressed an opinion. Mr Williams introduced a fourth aspect of groundwater, namely volume.

65 As regards groundwater levels, Mr Dundon, Mr Mackie and Mr Jewell agreed that the proposal is likely to cause the following changes:-

· An area of about 5 ha centred on the final location of the dredge pond and an area of 2 ha along the western boundary of Lot 8 will decrease groundwater levels by 0.3 m to 0.5 m;

· An area of about 60 ha to the southwest of Lot 8 will decrease groundwater levels by about 0.2 m to 0.3 m;

· Groundwater levels to the south and east of the site will decrease by about 0.2 m;

· If there is concern about the decrease to the south and east (because of impact on flora and fauna), the level of the groundwater can be kept constant by the use of infiltration ponds, which draw water from rain and the dredge pond.

· Groundwater levels to the north of the site will increase;

· The maximum drawdown at any section of the coast will be along part of the Bate Bay shoreline and will be about 0.1 m,

· The impacts on groundwater levels are temporary; it is expected that ten years after the completion of sandmining the groundwater levels will recover their present levels.

66 Neither Mr Jewell nor Mr Mackie believes that the above changes are unacceptable. However, Mr Jewell had three reservations. First, he pointed out that the infiltration basin proposed by Mr Dundon to keep groundwater levels to the south and east constant was more in the nature of an idea than a design. The expression he used in this regard was that the devil is in the detail Secondly, in his view the model used to predict groundwater levels had a margin for error of up to 0.5 m. Thirdly, Mr Jewell thought that the cumulative impact of the proposal, together with the existing operations on the Besmaw and Consolidated Developments sites, should also be considered.

67 Mr Jewell’s first concern could be overcome by a deferred commencement condition or, preferably, by the Court giving the applicant an opportunity to design the infiltration basin before a final approval. His second concern regarding possible inaccuracies of the predictive model seems to me a problem that is present in the use of any predictive model that attempts to simulate the real world. There was no suggestion that Mr Dundon could have used a more accurate model. In the circumstances I intend to regard possible inaccuracies of the model as an aspect of making any decisions about future development. As regards Mr Jewell’s concern with cumulative impacts, Mr Dundon provided the Court with predictions of those impacts. I deal with this aspect below.

68 In respect of the impact on groundwater flows, Mr Dundon, Mr Mackie and Mr Jewell agree on the following:

· Groundwater flows to Quibray Bay will decrease by a maximum of 8% in year 1 of the project. Ten years after the project’s completion there will be a long-term increase of 5% in groundwater flows. This is a positive impact.

· Groundwater flows to Bate Bay will decrease by 8% in year 1 of the project. The maximum reduction of 16% will occur at the end of the project. Ten years after the project’s completion there will be long-term decrease in groundwater flows of 6%.

69 The experts agree that these impacts are environmentally acceptable.

70 Mr Dundon and Mr Jewell agree on the following impacts on groundwater quality. (Mr Mackie’s expertise does not include water contamination.)

· The groundwater beneath the adjoining Lot 8 is now contaminated. It contains elevated concentrations of cyclohexane, total petroleum hydrocarbons and ammonia.

· The Rocla sand extraction may accelerate the migration of contaminants towards the dredge pond for limited periods.

· The dredge pond will facilitate volatilisation to the atmosphere of cyclohexane and total petroleum hydrocarbons. It is also likely to enhance degradation of ammonia.

71 Mr Jewell and Mr Dundon agree that any groundwater contamination issues, being off-site, are manageable either by direct action by Rocla or enforcement action by the Government against neighbouring landholders.

72 At Mr Jewell’s request, Mr Dundon assessed the cumulative impacts and found them not to be of great significance compared to the impacts of the Rocla project proceeding alone. There would be an additional increase in groundwater levels, though the difference would not be great. Groundwater flows towards Quibray Bay would not be significantly greater for the cumulative scenario than for the Rocla project alone. The cumulative impact on flows towards Bate Bay would be smaller than for the Rocla project alone.

73 While the information on cumulative impacts reached Mr Jewell too late to allow him sufficient time for informed comment, I note that he did not request the Court for additional time. I assume therefore that, in general, he trust the results of Mr Dundon’s modelling. The evidence of Mr Dundon, Mr Mackie and Mr Jewell suggests that the impacts on groundwater levels, flows and contamination are acceptable. The above conclusion is subject to the Court being satisfied that an infiltration basin at the southeast boundary will keep groundwater levels constant to the south and east of the site.

74 As stated above, Mr Williams is also an hydrogeologist but his evidence deals specifically with the Department of Natural Resources’ position on cl 25 of SREP 17.

75 Despite the three experts reaching general agreement that the proposal’s environmental consequences were acceptable, Mr Williams maintained that the impacts were unpredictable for the following reasons:-

· The excavation to below the aquifer material would extinguish the existing groundwater resource of the site. The highly permeable sand would be replaced with VENM, a material of low permeability. This changes the volume of groundwater even where the level of the water table remains generally the same.

· There remains uncertainty about the proposal’s impact on groundwater contamination.

· Backfilling with VENM has the potential to introduce further contamination into the groundwater on the site by releasing iron. (Mr Dundon responded to this by saying that there was no evidence in the groundwater of the presence of iron despite backfilling by VENM on nearby sites. On the other hand, the evidence suggests that groundwater contamination on nearby sites may have been caused, at least partly, by VENM backfilling.)

· The model relied on by Mr Dundon, Mr Mackie and Mr Jewell is inaccurate. The results it predicts are fraught with uncertainty.

76 In summary, the evidence of Mr Dundon, Mr Mackie and Mr Jewell suggests that there is not likely to be unacceptable environmental harm to the groundwater below and around the site as a result of the proposal. This does not mean, however, that Mr Williams’ evidence is without force. Apart from a lack of confidence in the model used by Mr Dundon to predict the true impact on groundwater, Mr Williams’ basic reason for not accepting that satisfactory arrangements for the proper utilisation and protection of groundwater have been made was that, once the site is excavated to below the aquifer and filled with VENM imported from outside the site, the aquifer ceases to be the same natural resource that it was before excavation. Given that the disturbance to the aquifer on the site is total, Mr Williams’ position is not unreasonable. His evidence is important when I come to consider the effect of the provisions of cl 25, later on.

Endangered Ecological Communities

77 Four Endangered Ecological Communities (EECs), as defined by the Threatened Species Conservation Act 1995, exist on and near the site:-

· Swamp Oak Forest of the North Coast, Sydney Basin and South East Corner Bioregions (SOF);

· Swamp Sclerophyll Forest on Coastal Floodplains of the NSW North Coast, Sydney Basin and South East Corner Bioregions (SSF);

· Sydney Freshwater Wetlands in the Sydney Basin Bioregions (SFW); and

· Coastal Saltmarsh in the NSW North Coast, Sydney Basin and South East Corner Bioregions (CS).

78 The applicant’s experts on this aspect were Mr Dominic Fanning and Mr Geoff Winning, both of them ecologists. Dr Teresa James, a plant ecologist, gave evidence for the Second Respondent. There was general agreement among the experts that CS existed near Quibray Bay and SFW existed on and off the site. There was also agreement that vegetation with the floristic characteristics of SOF existed in the southeast part of the site and vegetation with the floristic characteristics of SOF and SSF existed on the neighbouring Sydney Water site. The debate centred on whether or not the vegetation that had the floristic characteristics of SOF and SSF should be considered as the EECs described in the Final Determinations for those communities.

79 The Final Determinations for both SOF and SSF include the descriptor that they should be associated with coastal floodplains. According to Mr Fanning and Mr Winning, the vegetation on the site was not on a floodplain and therefore did not match the SOF and SSF described in the Final Determinations. They concluded that the vegetation on the site was not SOF and SSF and (presumably) should therefore not receive the protection conferred by the Threatened Species Conservation Act 1995 on endangered ecological communities. Dr James disagreed. In her opinion the site is associated with coastal floodplains in the broad sense that those words are used in the Final Determinations. In her opinion, the descriptor floodplains refers to level land form that is comprised of {sic} sand, silt and clay that has been deposited by water. Floodplains extend beyond freshwater deposition. They include deposition in estuaries where the rivers meet the sea. Depositions include estuarine sediments and marine deposits. Dr James considers the vegetation to be SOF and SSF and, therefore, EECs under the Threatened Species Conservation Act 1995.

80 In my opinion, Dr James’ evidence is persuasive for three reasons. First and foremost, all three experts agreed that the vegetation on the site was floristically similar to that described in the Final Determinations for SOF and SSF. There was no suggestion that these vegetation groups commonly occur in places other than floodplains, and, when they do, they are less endangered than when they occur on floodplains. Since the main purpose of the Threatened Species Conservation Act 1995 is to protect biodiversity, it would be against its spirit to discount the importance of this vegetation on the basis of uncertainty about the correct characterisation of the location in which it occurs.

81 Secondly, where there is doubt whether or not vegetation proposed for removal is endangered, the Precautionary Principle requires me to assume that it is endangered. The third reason for preferring Dr James’ evidence is the response of the experts to a question from the Court asking them if their concern for the protection of the native vegetation on the site depended only on whether the vegetation was EEC under the terms of the Threatened Species Conservation Act 1995. Mr Winning and Dr James said that their concern would be the same whether or not the vegetation was an EEC, while Mr Fanning said that he would have slightly less concern if the vegetation were not an EEC under that Act.

82 In my opinion, the native vegetation in the southeast of the site must be considered to be SOF. The vegetation on the neighbouring Sydney Water site must be considered SOF and SSF. With the exception of a 30 m strip, all the SOF and the SFW on the site is to be removed. Dr James and Mr Winning agreed that the removal of EECs requires compensatory measures, either on or off the site. Mr Fanning said that in this case compensatory measures might not be necessary even if the vegetation removed is an EEC, because he disagrees with the Scientific Committee’s decision to list SOF and SSF as endangered. I cannot take this evidence into account, since the Scientific Committee’s determination stands, notwithstanding the opinions of individual experts.

83 The applicant deals with compensatory measures under Rehabilitation Strategies in section 4.3.3.2 of the Species Impact Statement. The proposal will create 3.8 ha of native vegetation in compensation for the 3.3 ha to be removed. However, the area of proposed native vegetation is fragmented along the perimeters of the site, around the seven ponds to be created and the area of the Aboriginal midden. The issue of the adequacy of compensatory habitat was not debated at length during the hearing. Dr James dismissed the compensatory measures as landscaping. Mr Fanning did not comment, since he did not consider compensatory measures necessary. I cannot find any reference in the evidence to Mr Winning’s opinion on whether the compensatory measures are adequate.

84 In my opinion, there can be no serious contention that the compensatory measures are adequate. Dr James’ description of them as landscaping is probably the most succinct way of describing what they are. Their creation relies on fragmented left-over spaces in a plan to create an industrial estate and on the specification of the species to be planted (Table 4.4 of the SIS). Ecological communities cannot be viably re-created in this way. The final Determinations describe the communities as forming mosaics with each other. To give these communities any chance of survival, some attempt must be made to recreate the conditions in which they occur naturally, including the size of the area in which they occur. Planting similar species in several smaller areas does not compensate for removing a natural forest, even if the total area planted exceeds that of the original.

85 I find that the existing vegetation removed by the proposal is an EEC under the terms of the Threatened Species Conservation Act 1995. Further, the rehabilitation strategies do not provide compensatory habitat. It follows, therefore, that it would be inappropriate to approve the application, which is based on Option 2 as described in paragraph 4 of this judgment. However, I note that Options 3 and 4 do not involve the removal of the existing native vegetation, so an application based on either of those options would not fail as a result of the above finding.

86 The change in the application from Option 2 to either Option 3 or 4 cannot be achieved simply by a condition requiring it to be based on either of those latter Options. This is because much of the proposal would require re-design leading to changes in the expert evidence. Based on the information before the Court with regard to groundwater, an infiltration pond is likely to be necessary in order to keep the groundwater level constant under the EECs retained. That pond would have to be outside the area of retained vegetation and within the boundaries outlined in Options 3 and 4.

Threatened fauna: the Grey Headed Flying Fox

87 A large GHFF colony roosts in the Casuarina forest on the adjoining Sydney Water site. The flying fox occasionally visit the subject site. The Threatened Species Conservation Act 1995 lists the GHFF as a vulnerable species. The First Respondent did not raise the impact on the Grey Headed Flying Fox (GHFF) as an issue. The issue was raised by the Second Respondent.

88 The Court has appointed Dr G Richards, a fauna expert, to advise on the proposal’s impact on the GHFF. The Second Respondent’s expert was Mr Ian Drinnan, principal environmental scientist with Sutherland Shire Council. The applicant’s expert was Mr Dominic Fanning.

89 The focus of disagreement among the three experts was the importance of retaining the Swamp Oak Forest on the site. All experts agreed that if it were retained, there would be no impact on the GHFF. Given my finding above that the Swamp Oak Forest must be retained, the issue of the impact on the GHFF is resolved.

Threatened fauna: the Green and Golden Bell Frog

90 In 2001 Dr Arthur White, a herpetologist who is also the applicant’s expert on the Green and Golden Bell Frog (GGBF) in these proceedings, carried out a survey of the subject site and adjoining land. Dr White found seven wetlands within the subject site that were suitable habitat for the GGBF. However, only at one of these locations did Dr White find any frogs. No sightings of the GGBF on the subject site have been reported since. Despite this, Dr White thinks that the site offers potential habitat for the GGBF, which is a threatened species under the Threatened Species Conservation Act 1995. Although he did not find a statutory need for it, Dr White has prepared a Species Impact Statement (SIS) on the GGBF. The SIS sets out the measures proposed to ensure that the site remains a habitat to which the GGBF can migrate. Four ponds, specially designed as GGBF habitat, are the main feature of the proposed measures.

91 The First Respondent did not raise the impact on the GGBF as an issue. The Second Respondent’s expert on the GGBF was Mr Ross Wellington, also a herpetologist. Dr White and Mr Wellington agree that the Kurnell GGBF population was important and that the site should continue to provide potential habitat for the frog. Apart from these generalities, however, they found little else to agree on. In Dr White’s opinion, the site will become a more favourable habitat for the GGBF as a result of development. Mr Wellington considers that the proposal contains too many uncertainties for Dr White to reach this conclusion.

92 The basis for Mr Wellington’s doubts is that he does not accept that the predictions of the groundwater experts can be relied on. Of the seven areas of disagreement between Dr White and Mr Wellington, three related to the question of the reliability of the groundwater experts’ predictions. The other areas related to whether the proposal provided sufficient detail for the Court to feel confident that an adequate GGBF habitat will be established on the site.

93 Given that the GGBF has not been sighted on the site since 2001, and then only at one location, it would not be appropriate to think of the proposal as one that displaces a habitat currently used by the frog. While Dr White may be correct in saying that his proposed ponds will be attractive to the GGBF, there can be no guarantee that the frog will migrate to them. I have carefully examined Mr Wellington’s evidence in search of suggestions for improvements to the measures suggested by Dr White, such as differently located or differently sized ponds, or links between ponds. I have not found any such suggestions. If I accept Mr Wellington’s evidence, the only course of action would be to refuse the application on the basis of its impact on the GGBF. Since there are unlikely to be any frogs on the site now, this would be an unreasonable course for the Court to take. In my opinion, the impact on the GGBF is not a reason for refusing the application.

Visual and heritage impact

94 The Court has appointed Mr John O’Grady, a planner and landscape architect, to advise on visual and heritage impact. The applicant’s expert was Dr Richard Lamb, a consultant on visual assessment. The Second Respondent’s expert was Mr Warwick Mayne-Wilson, a landscape architect and heritage consultant.

95 The experts agree that the only part of the site that had visual or heritage significance is the dune. They also agree that the dune has no natural, aesthetic, national or State heritage significance. Mr O’Grady and Dr Lamb agree that the dune has no European heritage significance. Mr Mayne-Wilson takes issue as he thought that the dune has European social heritage significance, because some local residents remember sliding down the dune in their youth. I do not think that this can properly be called heritage significance. It is more appropriately considered as one of the reasons for the public’s objection to the removal of the dune. (See The objectors’ evidence below.) In this section I deal only with the visual impact of the dune.

96 The experts agree that in the event that the existing (1965) consent to remove sand down to 3 m above sea level was valid, there were no residual visual or European heritage impacts for them to consider. This is an illogical conclusion that is in any event irrelevant, in view of, my finding in relation to the 1965 consent.

97 All three experts agree that:-

· The dune is not prominent or easily discerned in views from the shore of Botany Bay to the north or suburbs such as Brighton Le Sands, Sans Souci and Kurnell.

· The dune is transgressive, ie it is moving and will keep moving unless it is stabilised.

· The dune is prominent in some closer views from the south, for example, from Wanda Beach and in views from the northern section of the Wanda Beach Track.

· Views are available from some recreational and natural settings, particularly beaches north of Cronulla, the walking track within the Cronulla Sand Dune (a NSW Heritage listed item of cultural heritage), and high points on a few local roads.

· The dune is the only feature on the site that could be considered to be of significant scenic quality.

98 The experts disagree about the extent and nature of the significance of the dune. Dr Lamb believes that the dune on the Rocla site is not prominent in the overall views from the positions mentioned above. He notes that, if the dune is stabilised by revegetation, it will become less prominent because it will recede into the background of green hills. Mr Mayne-Wilson places high importance on the dune, though it appears that his reasons are not only the appearance of the dune but its apparently cherished place in the collective memory of local residents.

99 The Court appointed expert, Mr O’Grady also places high value on the continued existence of the dune. In his opinion, if the Rocla dune were removed, the scenic quality of the overall view from Wanda Beach would diminish. In the final paragraph of his report he states:-

My overall conclusion in light of this assessment is that the proposal would have an unacceptable impact on the visual quality of the locality in that the removal of the sand dune on the site would be inconsistent with the landscape values of the locality as expressed by a large number of government and semi-government and members of the general public. I believe that this impact is sufficient to warrant refusal of the proposal as described in the application.

100 Clearly, evidence on visual impact is highly subjective and therefore its assessment cannot be entirely free of subjectivity. The consideration of the dune’s appearance is further complicated by the fact that the dune is mobile and, in order to preserve it, it will have to be stabilised. This may change its present appearance. However, I do not accept Dr Lamb’s evidence that revegetation will necessarily make it disappear into the background.

101 In my opinion, the dune is a valuable component of the overall scenery as seen from Wanda Beach, which is an important viewing point in Kurnell. Removal of the dune would diminish the quality of the scenery. I would not go as far as to adopt Mr O’Grady’s opinion that the visual impact of removing the dune is, by itself, a sufficient reason for refusing the application. It would be more balanced to say that the loss of the dune from the overall view seen from Wanda Beach is a regrettable and negative feature of the proposal.

The objectors’ evidence

102 Following the exhibition of the development application the Respondents received a large number of submissions. Several petitions came via Members of Parliament. The National Parks Association, the Coast and Wetlands Society Inc, the Oyster Farmers Association, the Sutherland Shire Environment Centre, the Kurnell Progress and Precinct Residents’ Association, the Cronulla Dunes and Wetland Protection Alliance, the North Cronulla Precinct Committee Inc and the Kurnell Regional Environment Planning Council, as well as several individual objectors wrote to express concern.

103 Representatives of the Holt Group (the owners of the Besmaw site) wrote several submissions. In a letter dated 28 January 2005, Mr Phillip Holt pointed out that the Besmaw site has sufficient reserves to continue to supply the whole output (of fine sand) from the Kurnell Peninsula for some decades. In addition Mr Holt notes that two of the options in the EIS (Options 2 and 4) involve common boundary extraction. This would be incompatible with Besmaw’s groundwater management plan. It would involve extraction outside the subject site and Besmaw has not granted the applicant permission for this. Mr Holt gave oral evidence on his objection, in which he reiterated his major concerns.

104 During its visit to the site on 28 November 2006 the Court heard, in addition to Mr Holt, the evidence of twelve objectors. Mr Merv Ryan, a descendant of the Gweagal people addressed the Court on site’s importance to Aboriginal history, in particular the midden near the entrance from Captain Cook Drive. I deal with Mr Ryan’s evidence at [120]. Professor Paul Adam of the Coast and Wetlands Society talked about the fragile environment of Kurnell, referring, in particular to the lack of knowledge of the environmental consequences of interfering with aquifers. He noted that aquifers are themselves ecosystems that are home to tiny living organisms about which science presently knows very little.

105 In addition, the Court heard from the following objectors:-

· Mr Graham Quint, deputy conservation director of the National Trust;

· Mr Robert Walshe, Chairman of the Kurnell Regional Environment Council (an umbrella body of eight organisations concerned with the local environment);

· Mr Gary Shoer of the National Parks Association;

· Mr Stuart Hansman;

· Ms Angela Thomas;

· Ms Susan Newby;

· Mr Denis and Mrs Carolyn Howard;

· Ms Deirdre Waddington;

· Ms Patricia Kelly;

· Mr Kevin and Mrs Pauline Curby;

106 The objectors had two main concerns. First, they considered that the scale of mining proposed in this application was inconsistent with the State Government’s long-standing policy of phasing out sandmining in Kurnell. Secondly, they said that they place a high value on the dune on the subject site. Several of them remembered sliding down the dunes before public access to it was denied. They considered dunes to be the main element of the Kurnell landscape, they noted that many of the dunes have disappeared as a result of sandmining, and they opposed the removal of yet another one.

107 It is always difficult, in the absence of a referendum, to assess the true extent of public opposition to a proposal. In this case, however, the sum total of the relevant evidence, including letters from Federal and State Members of Parliament, extracts from Parliamentary debates, articles in the local and metropolitan press, individual letters and petitions objecting to the proposal, as well as the oral evidence given by objectors persuade me that local opinion is strongly opposed to sandmining generally and to the proposal in particular. While such opposition has to be balanced against other issues in the case, it is a strong factor against the approval of the application.

Availability and cost of construction sand in the Sydney Region

108 There is undoubtedly a public interest dimension to the availability of Kurnell sand for the Sydney construction market. The experts before the Court were Mr Donald Reed, for the applicant, and Mr George McLellan, for the first respondent, both geologists with expertise in construction materials mining.

109 I find the following facts are relevant:-

· Sydney’s annual sand consumption is 5.9million tonnes. The main uses of sand are for concrete (65%) and plaster (15%).

· Of the total Sydney demand for sand of 5.9 million tonnes, the demand for fine sand is 2.1 million tonnes (36%). The fine sand comes from Kurnell, Penrith Lakes and Stockton.

· The annual production of fine sand from Kurnell is 1.2 million tonnes (a little more than half Sydney’s consumption of fine sand).

· The Rocla site would supply 4.5 million tonnes of fine sand (Option 2: the environmentally most damaging option); or 2.8 million tonnes (Option 3: the environmentally least damaging option). Options 1 and 2 would yield 3.8 and 3.5 million tonnes respectively.

· Development of Option 2 would extend sand supply from Kurnell by a little less than four years, while development of Option 3 would extend it for a little more than two years.

· The supply from Penrith Lakes will cease in about 2012. This will affect the supply of medium and coarse sand more than the supply of fine sand.

· The replacement of medium and course sand will come as manufactured sand from hard rock and friable sandstone quarries. This will cost more because the quarries are further from Sydney.

· The replacement of fine sand from Penrith Lakes will come either from Kurnell or from manufactured fine sand, or from both. Eventually, towards 2020, the majority of fine sand will have to be manufactured sand, as natural fine sand will have run out. If the Rocla application is refused, the change–over will occur 2-4 years earlier than if it receives consent.

· Natural fine sand from Kurnell is cheaper (at $4 per tonne) than the manufactured alternative, which has to be transported further ($10 per tonne).

· Once the supply of fine sand in Sydney runs out, concrete manufacturers will adjust to substitute products such as fly ash. (The experts disagree whether this is likely to happen before 2012. Mr Reed thinks it will not happen while natural fine sand is available. Mr McLellan maintains that it is already happening as manufacturers are preparing for the inevitable. Both agree that it will happen when the supply of natural fine sand runs out.)

· The Besmaw land, from which Rocla currently extracts fine sand, has a remaining capacity of 18 million tonnes. Without contribution from the Rocla land, this would be sufficient to supply Sydney until 2021.

· The objection from Besmaw states that there is no need for the sand on the Rocla site, as the Besmaw site can supply the Sydney market “for decades” (see [103]). However, the Court heard evidence that Besmaw’s directors are considering ceasing sand mining on the site in 2009 and developing it for a resort.

110 On balance, the Rocla land is helpful but not critical to meeting Sydney’s requirement for fine sand. Even the environmentally most damaging option contains less than four years’ supply (25% of the supply available from the Besmaw land). The least damaging option contains just over two years’ supply (20% of the supply available from the Besmaw land).

111 The evidence that Besmaw may cease sand mining after 2009 is, in my opinion, a furphy. The fact that the Besmaw land had a valid consent and did not use it, suggests an acknowledgement that setting up a resort as an end use in such an environment may not be viable. However, it is reasonable for the Besmaw directors to consider an ultimate use of the land after the sand supply is exhausted. Moreover, any consent authority considering an application that involves the cessation of sand mining would have to consider the impact on the Sydney construction market to a much greater extent than is required in this application, since on the Besmaw site sand mining is already occurring and the resource is four to five times as large as that on the Rocla site. Finally, it seems perverse to allow a new sandmining project, despite opposition from the Minister and the local public, on the basis of conjecture that a much larger existing project that is currently tolerated might cease.

112 Mr Reed and Mr McLellan agree that Kurnell fine sand will remain in use as long as it is available, based on its lower cost, historical use, suitability, existing concrete mix designs and a perceived need. They also agree that when it is no longer available, manufactured fine sand will be used, as it already is in the majority of the cities around the world where natural fine sand is not easily available.

113 In my opinion, the availability of natural fine sand to the Sydney construction market is a factor in the Rocla decision, but not a factor of critical or even major weight. If there were no adverse environmental consequences and no conflict with government policy and planning instruments, then there would be a strong argument in favour of the cheap resource being made available for the additional two to four years. However, the availability of the cheap resource for such a short time is, in my view, not of sufficient importance to balance other considerations.

Clause 23B of SREP 17

114 There can be no issue that cl 23B applies. Each of a), b) and c) demand separate consideration and conclusions. The two prerequisites for the operation of the clause are that there is an archaeological site and that the site has Aboriginal heritage significance.

115 The development site is not identified as an archaeological site in Schedule 2, SREP 17. However, a potential archaeological site is defined as:-

Potential archaeological site means a site known to the council to have archaeological potential.

116 Section 90(1) of the National Parks and Wildlife Act 1974 (NPW Act) prohibits a person from knowingly destroying, defacing or damaging an Aboriginal object or an Aboriginal place without first obtaining the consent of the Director General.

117 Rocla does not dispute that the consent of the Director General is required under s 90. It applied to the Department for consent in 2005. The Department advised Rocla by letter 8 January 2006 that an approved development application is required to complete the assessment of the s 90 Application. In addition it required more archaeological assessment information. In a reply letter 8 September 2006 Rocla advised the Director General that the applicant will be asking the Court to grant development consent notwithstanding cl 23B and relies on the effect of s 91A(5)(b) and s 93 of the EPA Act.

118 Where an approval body fails to inform the consent authority whether or not it will grant the approval, or the general terms of its approval, the consent authority may pursuant to s 91A(5)(b), determine the development application. The approval body cannot thereafter refuse to grant approval or grant approval inconsistent with the development consent.

119 The Aboriginal midden that extends on to Lot 8 comprises an area of approximately 30,000 m2 traversing in on east west direction. It is mostly covered by a sand sheet up to 5 m deep. No excavation is proposed in the area of the midden. Rocla proposes to construct a road that at one point will be about 3 metres above the midden. It is proposed to carry out a salvage excavation plan to ascertain more information regarding the midden. The salvage excavation is the perceived trigger for the s 90 Application. On 24 October 2005 the La Perouse Local Aboriginal Land Council wrote to the applicant’s consultant as follows:-

The above midden as stated in our letter (July 2002) is a most important site to the La Perouse Local Aboriginal Land Council, The Dharawal Elders and particularly the Gwegal Descendants who are the Traditional owners of the Kurnell peninsula.
This letter is to confirm that the L.L.A.L.C. and the Dharawal Elders have no objections to the permanent access road being constructed, providing the archaeological salvage is done on the areas to be affected by the construction of the road.

120 Notwithstanding later oral evidence that appeared to conflict with his response, Merv Ryan of the Kurranulla Association was consulted by the Department and advised that in matters relating to cultural heritage sites he would defer to the Dharawal and Gineagal Elders. His oral evidence concentrated on the prospect that the whole midden could be washed away and lost if as a consequence of the sand mining the ocean breaks through the peninsula and the midden falls into the sea. The prospect of a breakthrough was reiterated by a number of local residents and lay objectors but is not an issue raised in the appeal.

121 Mr Craig in his written submissions put the case on behalf of Rocla that the fact that the Department has not granted an approval under s 90(1) of the NPW Act does not preclude the Court from granting development consent. He relies on the interaction of s 39(6A) of the Land and Environment Court 1979 Act (the Court Act) with s 93, or alternatively, s 39(6) of the Court Act applies on the basis that a consent under s 90(1) of the NPW Act is an approval as defined by s (90)A of the EPA Act. In a practical sense, he says the effect of s 91(1) and s 91A(2) of the EPA Act in respect of integrated development is the same as the effect of cl 23B(1)(c) in the circumstances of the present case.

122 Further in the alternative, because s 39(6A) empowers the Court to grant development consent in the absence of a consent under s 90(1) of the NPW Act, then cl 23B does not apply to present case by reason of a breach of the doctrine of implied repeal by a later statute (Goodwin v Phillips (1908) 7 CLR 1). Put simply, Mr Craig says that in circumstances where the Court acts as consent authority cl 23B of SREP 17 and s 39(6A) of the Court Act cannot both operate.

123 Mr Clay argues, on behalf of the Minister that the applicant ignores the existence of the precondition in cl 23B which takes it outside the realm of the ordinary operation of the integrated development provisions. He says, the development site once identified by reference to the preconditions attracts a particular obligation namely to obtain the necessary consent before the grant of development consent. This submission cannot stand in the face of s 91 of the EPA Act that provides:-

124 Section 90 of the NPW Act is specifically listed. Thus the development is integrated development. The approval body has not informed the Minister whether or not it will grant the approval or of the general terms of its approval. Therefore the trigger for the operation of s 91A(5) is activated. The consent authority may determine the development under s 91A(5)(a). There is a blatant inconsistency between cl 23B(c) and s 91A 5(a). Section 91A was inserted into the EPA Act in 1997 and therefore prevails. No assistance is required from the provisions in s 39(6A) of the Court Act because s 39(2) gives the Court all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject to the appeal. One of the functions is the power to grant development consent under s 91A(5)(a). Section 39(6A) appears to have been inserted for emphasis and clarity.

125 Subject to the imposition of appropriate conditions, cl 23B does not prevent the Court from exercising its discretion to grant development consent.

Consistency with Objectives of SREP 71 and Government Policy

126 I have already outlined the arguments raised in this respect in some detail. The overall and arguably an overriding aim or objective of SREP 17 in the present context is the particular environmental planning aim and objective of the SREP expressed in cl 2(2)(h). It is an aim and objective that applies to the whole of the land within the Shire of Sutherland known as Kurnell Peninsula (see cl 3(1)). There are no relevant exceptions to cl 9(3), otherwise provided in the SREP 17. The permissibility of sand mining with development consent in the 4(b) zone does not take away from the force of the direction in cl 9(3) not to grant consent unless the consent authority is of the opinion that the carrying out of the development is consistent with the aims and objectives of the plan.

127 The proposed development for sand mining is a direct target of the particular environmental planning aim and objective in cl 2(2)(h).

128 A development consent that permits sand mining will not always lead to an inconsistency with the aims and objectives of the plan if the nature and extent of the proposal is part of the process of phasing out an existing activity, or allows extraction of a particular nature and extent that is consistent with cl 2(2)(h). For example there may be an application to extend an existing operation over a small additional area or to an increased depth. Also there could be an application to level an area by excavating and removing sand for a limited duration preparatory to a future land use. Either example would be consistent with phasing out of sand mining under suitable conditions.

129 As mentioned in [43], in 1979 there was a suggestion that the acceptable time frame for phasing out would be in the order of 20 years. That is now well and truly expired.

130 I do not fully appreciate the concerns expressed to the Minister from time to time regarding the possibility of establishing existing use rights. The Minister’s apparent reluctance to prohibit future consents for the purpose of sand extraction is difficult to fathom. It has not been explained to the Court in a plausible way. However, the directive was made to prepare for an amendment to SREP 17. Nevertheless, it was not followed up by further positive action.

131 The best evidence is that SREP 17 was drafted in a way that reflected an intention to manage future development on the peninsula, generally having regard to the environmental cultural and economic significance of the area to the nation, State, region and locality by adopting particular environmental aims and objectives. In general, the activity of sand mining is antipathetic to that intent.

132 The current application has a time frame of at least ten years for the mining phase. The site may not be available for an alternative permanent use for 20 years. The proposed depth of the operation is unprecedented. Although not in itself determinative, the large sand dune of the site will be dismantled and removed from the landscape. It is therefore difficult to comprehend how such a large scale long term operation can be regarded as consistent with an objective to phase out the activity. Rather than contribute to progressively phasing it out, any consent would facilitate its continuation and perpetuation over several decades. A more adequate description of the consequences would be a promotion and extension of the sand mining industry. There is already a major extraction development taking place on the Besmaw land. Any extension into lot 8 or even a separate operation on that lot could have the consequence of prolonging the Besmaw operation by inhibiting the re-development of that site. If that occurred it would be the antithesis of an objective to progressively phase out sand mining on the peninsula.

133 There is no specific objective expressed in SREP 17 that envisages any priority to the recovery of the sand resource. The case for economic justification has not been sufficiently made out to the extent that overrides the environmental and other planning objectives set for Kurnell.

Clause 25 of SREP 17

134 Mr Clay primarily adopts the submissions made by Mr Robertson SC on behalf of the council in respect of the effect of cl 25 of SREP 17. The Minister however emphasises that the question to be addressed pursuant to cl 25 by the Department of Natural Resources is not simply a merit assessment of the development application. It is to do with the proper utilisation and protection of the natural resource. It is therefore not just a part of the assessment by the Department under s 79C of the EPA Act but rather an assessment having regard to the policies or considerations relevant to the Department. The reference to the Department of Water Resources in cl 25 is to be construed, at the present, as a reference to the Department of Natural Resources.

135 It is common ground that no arrangements have been made with the Department.

136 In a letter 27 December 2005 the Department advised the applicant’s solicitors that the measures proposed fail to address the inherent incompatibility of the sand extraction with sustainable management of ground water resources. The Department expressed a belief that there is no prospect of it being satisfied that suitable arrangements could be made in respect of cl 25 of the SREP.

137 Three conditions apply, before cl 25 applies. Rocla submits that properly characterised the operations that are proposed do not satisfy any of subparagraphs (a) (b) or (c) of cl 25. Subparagraph (a) is said not to apply as water initially extracted with the sand is not abstracted for water supply purposes but is returned unaffected to the ponds. Furthermore, groundwater is not recirculated for industrial purposes as required in subparagraph (b). The water that is extracted is not discharged as wastewater into bores, unlined pits and excavations in accordance with subparagraph (c). All that happens according to the applicant, is that what is taken out is returned to the pond.

138 If the above facts are wrong then the applicant says that under s 39(2) of the Court Act the Court has all the functions and discretions which the Minister had in respect of the subject matter of the appeal. This last submission depends on the Court accepting that because the Minister for Infrastructure Planning and Natural Resources was not merely the consent authority he was also the Minister responsible for the Department of Natural Resources therefore he had the function of being satisfied as to arrangements for the proper utilisation and protection of groundwater.

139 In Codlea v Byron Shire Council (1999) 105 LGERA 370 the Court of Appeal, (confirming the decision of this Court following an appeal from a decision of a Commissioner), held that a function of …making prior adequate arrangements…for the provision of sewerage drainage and water services was not in respect of the matter the subject of the appeal and accordingly s 39(2) of the Court Act could not be relied upon to vest the Court with power to make the arrangements.

140 Even if the Minister could be equated with the Department, which I do not accept, I am not satisfied that s 39(2) has effect to allow the Court to make the arrangements referred to in cl 25. Moreover the satisfaction that is required in respect of those arrangements is not that of the consent authority but the Department and hence the power cannot be exercised by the Court on its behalf. Clause 25 imposes a precondition to the granting of consent over which the Court has no control. Either the arrangements have been made with the third party or they have not. The latter is the case.

141 I have already mentioned that the applicant’s argument also depends upon the fact that the one person held the office of Minister for Natural Services and Minister for Planning at the relevant time. As the decision in Codlea shows, it is not only the identity of the decision maker that matters but also the subject matter of the decision. The relevant decision required under cl 25 does not fall within the scope of s 39(2). Accordingly the identity of the relevant Minister is irrelevant.

142 The clear answer to the question whether the arrangements specified in cl 25 have been made is “no”. There is no present prospect of that occurring. That much is clear from the letter from Department and the evidence given to the Court by its Principal Hydrogeologist, Robert Williams.

143 The use of groundwater is an integral part of the proposed operation using a dredge to extract sand from a pond. Sand extraction is an industrial purpose. There is a process whereby sand and water is extracted. Although ultimately parts of the aquifer will be destroyed at least a major part of the water will be returned to the pond and hence to the aquifer. That in my view means that groundwater is recirculated as contemplated by cl 25(b). Part of the proposal also involves the pumping of water into constructed ponds at the eastern end of the site for the express purpose of maintaining water balance for the benefit of the Grey Headed Flying Fox habitat. Water from the dredge pond will be used for a number of peripheral or incidental purposes around the site as well as being an integral part of the operation of the dredge pond itself. At least subparagraphs (b) and (c) and possibly (a) of cl 25 will be satisfied.

144 The applicant makes a submission to the effect that s 39(6)(a) of the Court Act expressly empowers the Court to grant development consent in circumstances where concurrence or approval of a person or body is required and has not been given. Mr Craig argues that cl 25 should be understood as something in the nature of giving permission concurrence or approval in terms of s 39(6) that relevantly provides:-

(6) Notwithstanding any other provision of this section, if an appeal relates to an application made to…a consent authority within the meaning of the Environment Planning and Assessment Act 1979 and that…consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body:
(a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted…

145 The subject matter of s 39(6) is consultation, concurrence or approval. In a sense a combination of each one of these factors can form an arrangement. Obviously together they can be integral parts of a process that ultimately leads to the making of an arrangement. There firstly needs to be consultation followed by concurrence and then satisfaction expressed in the approval. That constitutes the arrangement. In the present case therefore it is open to argument that a relevant concurrence or approval has not been granted failing the making of an arrangement satisfactory to the Department and that s 39(6) enables the Court to determine the appeal under the power given by s 39(6)(a).

146 The Court does not have the power to make the arrangement on behalf of the Department. Section 39(6) simply facilitates the grant of a consent whether or not the arrangement has been made. The Court should be wary to do this against the advice of the Department where the basis for the Department’s decision has not been seriously challenged. The reasons for the Department not finding the arrangements satisfactory are stated in the letter 27 December 2005 and abridged by Mr Williams as follows:-

· The removal of the aquifer material in its entirety will extinguish the existing groundwater resource beneath the site;

· The disturbance of the aquifer by the proposed activity has the potential to significantly impact on the quality of groundwater beneath and surrounding the site; and

· The alteration of groundwater flow and recharge patterns brought about by the dredging, land filling and construction of artificial recharge structures has the potential to significantly impact on the species distribution and biodiversity of the nearby groundwater dependent ecosystems.

147 Mr Williams reiterated the Department’s view that the environmental impacts are perceived as permanent and non-recoverable involving the loss of a viable naturally renewable water resource and hence unsustainable in terms of Ecologically Sustainable Development (ESD) principles. There is no prospect that satisfactory arrangements can be made to protect the groundwater resource and the site. I am not persuaded that approach is fallacious. The emphasis of cl 25 in the proper utilisation and protection of groundwater as a natural resource. I reiterate the findings earlier in relation to the force of Mr Williams’ evidence at [76]. The evidence on impact on groundwater as a natural resource provides a strong ground for refusal in the absence of an arrangement satisfactory to the Department.

Conclusions

148 Although a number of the merit issues are either non-determinative or have been decided in favour of the applicant, the findings in respect of the impact on EECs, the conflict with the aims and objectives of SREP17 and the effect of cl 25 mean that the application must be refused. These difficulties are not overcome by seeking to adopt a modified proposal or an alternative option to the one preferred by the applicant.

149 The expertise, experience and advice of Roseth SC has been of considerable assistance in resolving the difficult and important issues that have arisen in this case. The Commissioner agrees with the outcome that leads to a dismissal of the appeal.

150 The appeal is dismissed.

151 The exhibits may be returned.