Save Balickera Incorporated v The Independent Planning Commission of NSW

[2025] NSWLEC 1605

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Save Balickera Incorporated v The Independent Planning Commission of NSW [2025] NSWLEC 1605

Hearing dates:

22-24 July 2025

Date of orders:

22 August 2025

Decision date:

22 August 2025

Jurisdiction:

Class 1

Before:

Dixon SC

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) Development consent is granted to State Significant Development Application No. SSD-10432 for the development of a new hard rock quarry, proposing to extract, process and transport up to 1.5 million tonnes per annum of materials over a period of 30 years, known as the Stone Ridge Quarry, subject to the conditions in Annexure C.

Catchwords:

DEVELOPMENT APPLICATION – objector appeal – state significant development – hard rock quarry – conditions of consent

Legislation Cited:

Biodiversity Conservation Act 2016 (NSW)

Environment Protection and Biodiversity Conservation Act 1999 (Cth), Pt 9, ss 18, 18A, 134, 136, 136, 136, 176

Environmental Planning and Assessment Act 1979 (NSW), ss 4.5, 4.15, 4.36, 4.38, 8.8

Forestry Act 2012 (NSW)

Land and Environment Court Act 1979 (NSW), ss 17, 34, 39

Environmental Planning and Assessment Regulation 2021 (NSW), s 38

Port Stephens Local Environmental Plan 2013

State Environmental planning and Policy (Resilience and Hazards) 2021, Chs 3, 4

State Environmental Planning Policy (Biodiversity and Conservation) 2021, Pt 3

State Environmental Planning Policy (Planning Systems) 2021, Sch 1, s 7

State Environmental Planning Policy (Resources and Energy) 2021, Pt 2.3

Category:

Principal judgment

Parties:

Save Balickera Incorporated (Applicant)
The Independent Planning Commission of NSW (First Respondent)
Australian Resource Development Group Pty Limited (Second Respondent)

Representation:

Counsel:
N Hammond (Applicant)
R Coffey (First Respondent)
T Poisel (Second Respondent)

Solicitors:
D Robinson (Applicant)
A Hutchings, Department of Planning and Environment (First Respondent)
T White, Lander & Rogers (Second Respondent)

File Number(s):

2025/00021165

Publication restriction:

Nil

JUDGMENT

1. These proceedings arise following an objector-appeal pursuant to s 8.8(2) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against The Independent Planning Commission of NSW’s (IPC’s) decision (16 December 2024) to grant development consent to the Stone Ridge Quarry Project (Project).

2. The site of the Project is within the Wallaroo State Forest at Balickera in the Port Stephens Hinterland, about 30km north of Newcastle. It is an extractive industry development dedicated to the extraction, processing and transportation of up to 1.5 million tonnes per annum of hard rock, over a 30-year period.

3. Falling within the criteria specified in s 7 of Schedule 1 of the State Environmental Planning Policy (Planning Systems SEPP) 2021, the Project is declared to be a State Significant Development (SSD-10432) under s 4.36 of the EPA Act.

4. Under s 4.5(a) of the EPA Act, the Independent Planning Commission (First Respondent) is declared to be the consent authority under s 2.7(1)(b) of the Planning Systems SEPP; as more than 50 unique submissions objecting to the Project have been received.

5. Pursuant to s 39(2) of the Land and Environment Court Act 1979 (NSW) (Court Act), the Court has the functions and discretions of the IPC as consent authority; and may dispose of these proceedings under its Class 1 jurisdiction (s 17 (d) of the Court Act).

6. The parties participated in a conciliation conference, over which I presided, pursuant to s 34(1) of the Court Act on 22 July 2025 (s 34 conference).

7. At the conference, the parties agreed that the Consent should be amended in accordance with the Agreed conditions of Consent (Annexure C); and on that basis, that all contentions between them had been addressed. They also agreed that the relevant jurisdictional requirements to enable the Court to make the orders set out in their s 34 agreement in the proper exercise of its functions are as set out in para [17]-[54] of the Agreed Jurisdictional Statement filed with the agreement and:

1. The Department of Planning, Housing and Infrastructure Assessment Report dated October 2024 (see s 4, 5, 6 and 7) (DPHI Assessment report) (Annexure A);

2. The Independent Planning Commissions Statement of reasons for Decision dated 16 December 2024 (IPC Statement of Reasons) (Annexure B).

8. Having considered the submissions made by the parties in the Agreed Jurisdictional Statement and the DPHI Assessment Report and the IPC Statement of Reasons, I am satisfied on the basis of the evidence before me that the agreement of the parties is a decision that the Court could have made in the proper exercise of its functions.

9. In that regard, in consideration of the consent and agreed conditions I accept that all relevant matters and objects listed in s 4.15 of the EPA Act have been assessed. Community engagement has also met the participation requirements under the EPA Act and EPA Regulations.

10. The Project has also received approval under Part 9 of the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (EPBC Act) on April 2025 (EPBC 2022/09368) from the Commonwealth Department of Climate Change, Energy, the Environment and Water (DCCEEW). Therefore, I am satisfied that the assessment of the Project is suitable in terms of compliance with the EPBC Act including ss 18, 18A, 134(4), 136(1)(b), 136(2)(a), 136(e) and 176(5).

11. A BDAR was prepared, and revised, in accordance with the Biodiversity Assessment method established under the Biodiversity Conservation Act 2016 (NSW) (BC Act) and accompanied the EIS for the Project. The likely impacts of the proposed development on biodiversity values as assessed in the BDAR have been considered and the retirement of credits in accordance the biodiversity offsets scheme established under the BC Act has been conditioned.

12. I am satisfied that the assessment of the Project is suitable in terms of its compliance with the BC Act.

13. I am also satisfied of the Project’s compliance with the Planning Systems SEPP.

14. I have considered the non-discretionary standards for mining in the State Environmental Planning Policy (Resources and Energy) 2021 (Resources and Energy SEPP) in Part 2.3 against the agreed conditions, the VLAM and the evidence as submitted at para 34-36 of the Jurisdictional statement and am satisfied that the assessment of the Project is suitable in terms of its compliance with the Resources and Energy SEPP.

15. I also accept that relevant public authorities have been notified that the development may affect public infrastructure or land. Notably, the consent now requires an upgrade to the intersection of Italia Road and the Pacific Highway, and that all Project related heavy vehicles and haulage trucks utilise the Tarean Road Interchange when travelling south. An upgrade of the intersection of Italia Road and Hamburger Trail is also required to be suitable for Project related heavy vehicles , forming the access road to the Project land.

16. Importantly, the consent requires a traffic management plan be prepared before the commencement of the construction, and road and intersection upgrades prior to the commencement of any quarry product transportation. The monitoring of road haulage rates, and the payment of contributions to the Port Stephens Council for ongoing maintenance of local roads to be utilised by the project related heavy vehicles are also required under the terms of the consent.

17. The EIS includes an assessment of the hazards and risks associated with the Project, including waste, dangerous goods storage and bushfires addressing the matters in Chapters 3 and 4 of the State Environmental planning and Policy (Resilience and Hazards) 2021. A bushfire risk assessment has also been conducted and resulted in the requirement for the preparation of a Fire Management Plan addressing internal access, water supplies and the location and type of hazardous material.

18. As such, I am satisfied that the Project is suitable in terms of its compliance with the Resilience and Hazards SEPP.

19. Part 3 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 (Biodiversity and Conservation SEPP) does not apply to the First Respondent or Court as consent authority. Nonetheless, it is to be noted that the consent will require the maintenance of vegetated corridors to the north and south of the Project area to allow movement of this species to adjoining habitat to the northeast. A measure intended to assist to achieve the aim of the Biodiversity and Conservation SEPP to conserve and manage Koala habitat to reverse population decline. Albeit the loss of Koala habitat for the Project has been assessed under the Council’s comprehensive Koala Management Plan, to be minor – given the large expanse of forest vegetation around the Project area that is likely to contain suitable koala tree feeding species. That said, I am satisfied that the assessment of the Project is suitable in terms of its compliance with the Biodiversity and Conservation SEPP.

20. Additionally, I am satisfied that the Project is within RU3 Forestry zone under the Port Stephens Local Environmental Plan 2013 (Port Stephens LEP) – with part of the access road and intersection works on land zoned RU2 landscape zone. Importantly, the LEP authorised uses as defined under the Forestry Act 2012 (NSW) to be permitted without consent on land zoned RU3. The Second Respondent holds a Deed of Agreement for a FML with the FCNSW which allows it to seek approval for the FML in respect of the operation of a hard rock quarry within the Project area. Separately, the access roads are “roads and extractive industries uses and as such are permitted with consent in the RU2 zone.

21. In short, I am satisfied that the assessment of the Project is suitable in terms of its compliance with the Port Stephens LEP.

22. Lastly, I am satisfied that the requirements of s 4.15 of the EPA Act have been satisfied to allow the grant of a conditional consent. Accepting after review that the proposed conditions are within power under s 4.38(1)(a) of the EPA Act.

Conclusion and orders

23. Accordingly, as the parties’ agreed decision is within power, I now dispose of the proceedings in accordance with that decision.

24. In forming that view, I am not required to make, and have not made, any assessment of the merits of the DA against the discretionary matters that arise pursuant to an assessment under s 4.15 of the EPA Act, and the planning framework.

25. The Court notes that the First Respondent has approved, pursuant to section 38(1) of the Environmental Planning and Assessment Regulation 2021 (NSW), the Applicant’s application for an amendment to State Significant Development Application No. SSD-10432 to rely on the following documents:

1. Consolidated Management Measures prepared by Umwelt dated July 2025;and

2. Cumulative Impact Assessment Report prepared by Umwelt dated July 2025.

26. The Court orders that:

1. The appeal is upheld.

2. Development consent is granted to State Significant Development Application No. SSD-10432 for the development of a new hard rock quarry, proposing to extract, process and transport up to 1.5 million tonnes per annum of materials over a period of 30 years, known as the Stone Ridge Quarry, subject to the conditions in Annexure C.

S Dixon

Senior Commissioner of the Court

21165.25 Annexure A

21165.25 Annexure B

21165.25 Annexure C

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Amendments

29 August 2025 - Amendment made to representation.

02 September 2025 - Amendment made to representation.

Decision last updated: 02 September 2025