Land and Environment Court of New South Wales CITATION : CSR Building Products Ltd v Maitland City Council [2005] NSWLEC 680 APPLICANT CSR Building Products Ltd PARTIES : RESPONDENT Maitland City Council FILE NUMBER(S) : 11245 of 2005 CORAM: Bly C KEY ISSUES: Development Consent :- Modification of existing development consent for extractive industry - clay shale quarry - extension of time of consent - bund walls and landscaping Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Maitland Local Environmental Plan 1993 Development Control Plan No. 4 DATES OF HEARING: 21/11/2005 EX TEMPORE JUDGMENT DATE : 11/21/2005 APPLICANT Mr M Fraser, barrister Instructed by: Ms C Covington Of: Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Mr W Williams, solicitor Of: Thompson Norrie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 21 November 2005 11245 of 2005 CSR Building Products Ltd v Maitland City Council JUDGMENT This decision was given extemporaneously and has been revised and edited prior to publication. 1 On the 22 October 1980, development consent was granted for the use of the property at Lot 1 DP 136183 being 1 Brickworks Road, Thornton, for a clay quarry. But for a recently granted extension of time the consent will expire on 22 of November 2005. 2 An application to modify the consent under s 96(2) of the Environmental Planning and Assessment Act 1979 seeks to extend the extraction period for a further 15 years (less one month). 3 In dealing with this matter I have been assisted by the comprehensive report prepared by council town planner Mr G Clayden. According to his report the reason for the extension of the extraction period is due to the actual annual extraction rates from the quarry being significantly less than the extraction rates anticipated in the original development application. 4 The subject land is zoned 1(d) Secondary Rural Land under Maitland Local Environmental Plan 1993. Extractive industry is a permissible form of development in the 1(b) Zone with council consent and is considered to be consistent with the objectives of the zone. 5 The application to modify the development consent was advertised in June and July 2005 and two submissions were received from local residents expressing a number of concerns. 6 The application was also referred to various government authorities. In response the Department of Environment and Conservation - Environment Protection Authority raised no objection. The New South Wales Department of Primary Industries - Mineral Resources, New South Wales, also raised no objection, noting that the application is consistent with council's Clay Conservation Policy – Development Control Plan No. 4 as it will ensure the continued availability of the site's clay resources to the local brick-making industry and facilitate maximum utilisation of these resources. 7 The Department of Environment and Conservation New South Wales, National Parks and Wildlife (DEC) expressed concerns in relation to rehabilitation/vegetation works and possible impacts on possible items of aboriginal cultural heritage. Further discussions were held with the applicant and further information provided to DEC who subsequently acknowledged that it was unlikely that items of aboriginal cultural heritage would be found on the site. 8 The applicant has also agreed to carry out additional plantings of the type requested by DEC and will document the landscaping programme in the next and future annual review documents to be prepared in accordance with the Environmental Management Plan – a requirement of the consent. 9 Resident objections to the modification application were made by Mr and Mrs Dunne and Mr and Mrs Swan. Mrs Dunne attended the on-site hearing and explained her concerns which related to noise, pollution generally and the affect of the quarry on flora and fauna. She was especially concerned about the affect of dust on her lifestyle and also the health of her husband who is an asthmatic. 10 Mr & Mrs Swan were concerned about traffic management, water management, site rehabilitation and consultation. 11 A third objection came from Mr King, a nearby resident who had not written a letter of objection but was given an opportunity to explain his concerns whilst on the site. Once he understood the nature of the modification application and the extent of vegetation retention on the site, his concern seemed to evaporate. 12 In the context of the objections to the modification application I note that both Mr & Mrs Dunne and Mr & Mrs Swan were notified that the hearing was to involve council and the applicant inviting the Court to make consent orders. 13 Whilst the consent orders deal with a range of matters, including the Clay Quarry Consultative Panel, site revegetation, dust, noise, roads, bund walls and annual reviews, the application is principally about the extension of time of the consent. Whilst these matters will improve and tighten a number of provisions of the consent, they do not change it in any fundamental way. Hence general concern expressed by neighbours cannot attract any determinative weight. I do however, recognise that the extension of time will result in some continuing amenity impacts on the nearby residential area for a longer period than would otherwise have been anticipated. Despite this, these impacts are, given the tight constraints on the quarrying activity, within reason and result in an appropriate balance between the extraction of this regionally significant resource and residential amenity. 14 In reaching my conclusion that the appeal should be upheld, I have taken into account the bundle of documents provided by the council, which contains the council officer's report already referred to and other relevant materials particularly the consultation materials. I have also taken into account the now proposed conditions of consent and the existing conditions of consent which include consultative procedures and air quality monitoring, noise control and site revegetation aspects. 15 I therefore make the orders in accordance with Exhibit 2 as amended today which, in essence uphold the appeal, amend the development consent and retain Exhibits 2 and 3. There will be no order as to costs. ___________________ TA Bly Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.