Land and Environment Court of New South Wales CITATION : Nader v Shoalhaven City Council [1988] NSWLEC 118 APPLICANT Nader PARTIES : RESPONDENT Shoalhaven City Council FILE NUMBER(S) : 10408 of 1987 CORAM: Stein J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Bignall v. Greater Taree City Council 1987; Capital Quarries Pty. Ltd. v. Gunning Shire Council 1987 DATES OF HEARING: 04/05/1988 DATE OF JUDGMENT: 05/04/1988 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: This is an appeal pursuant to section 97(l) of the Environmental Planning and Assessment Act against the deemed refusal of development consent for a basalt quarry at Portion 73, Parish of Termeil, Lake Tabourie. Subsequent to the lodging of the appeal the Council determined the application by refusing consent and communicated its reasons to the applicant on 14 October 1987 as follows:- "l. Council is of the view that the quarry would have a significantly adverse impact on the environment and that the measures proposed by way of the environmental impact statement would not sufficiently minimise this impact. 2. There is a potential for the pollution of the creek system and Council is not satisfied that the measures which are set out in the environmental impact statement and proposal would sufficiently mitigate this effect. 3. The site adjoins other properties on which there are houses. The noise, dust and vibration emanating from the quarry would have an adverse effect upon the residents of those houses and the properties themselves. 4. The general amenity of the area would suffer to an inordinate degree by the various operations of the quarry. 5. The heavy vehicles associated with the quarry would increase the level of hazard along the access road, the highway itself and in particular at its intersection with the access road. 6. The hours of operation as identified by the application would be unduly disruptive to people living within the general area. 7. In considering the public interest, the balance between economic benefits and disruption to general amenity is, in the opinion of Council, against the proposal. Whilst accepting that there is a need for supplies of this material in the area, the applicant has not demonstrated that material cannot be taken from other sources with less interruption to the lifestyle, safety etc. of people in that area." The proposal described in the Environmental Impact Statement (EIS) is to blast, win and supply basalt for quality road base within a 50km range of Lake Tabourie which is approximately l5km south of Ulladulla. The village of Lake Tabourie is 3km to the north of the subject site. The site (some 2.5ha) is leased from the owner Mr. Shiaxiates. Entry to the quarry and plant area is proposed from Lemon Tree Road which is a Forestry Commission road, and the site adjoins the Termeil State Forest to the north. The quarry will include a crushing/screening plant, service areas including an office/amenities block and fuel store as well as a sedimentation dam. The EIS assesses the resource at 165,000m3 and proposes a likely production target of 7,000m3 per annum and a life span of 23 years. Lemon Tree Road connects with the Princes Highway. The distance from the site to the highway is around 2km. It is proposed to upgrade the intersection with the highway to a type 3 NAASRA standard required by the Department of Main Road s and also upgrade Lemon Tree Road. The subject land is zoned Rural l(a) and extractive industry is permissible with consent. The Illawarra Regional Environmental Plan No. l identifies certain objectives relating to extractive materials as follows:- "(a) to manage the extractive resources of the region in a co-ordinated manner so as to meet community needs while ensuring that adverse impact on the environment and the community is minimal; (b) to ensure that development proposals for land containing extractive resources are assessed in relation to the potential problem of rendering those resources unavailable; and (c) to ensure that the transportation of extractive materials has a minimal adverse impact on the community and that the transportation of large volumes of extractive materials shall by-pass urban areas where possible." However, the subject site has not been identified by the Regional Environmental Plan as a significant extractive resource. State Environmental Planning Policy No. 14 - coastal wetlands, designates wetland areas around the western end of Lake Termeil and the site is located within a tributary sub-catchment off the north arm of Termeil Creek which eventually flows into the Lake some 2km distance. The site itself is not affected by SEPP 14. The EIS was exhibited in accordance with the requirements of the Act and some 29 letters of objection were received together with a large petition. The Council also received some letters and a petition in support. The City Planner reported on the application at length and recommended consent subject to conditions. After consideration the Council ultimately refused the application for the reasons earlier set forth. The Council called a number of witnesses in its case, mostly resident objectors. With the exception of a consultant planner, Mr. Frazer, (who had been retained by the residents to make a submission to Council), no town planning evidence was called from Council's own officers. Council had retained Wellings Smith & Byrnes, Planning Consultants, to compile a report with a view to giving evidence but decided not to call them in its case. The applicant gave evidence and called a consultant planner (Mr. George), a civil engineer (Mr. Jones), an engineer with expertise in dam design and safety (Mr. Linforth), and an engineer with practical quarrying experience (Mr. Hanley). The principal issues exposed by the hearing are:- * The potential for water pollution and the adequacy of the sedimentation dam. * The visual impact of the quarry. * The potential for dust generation. * The potential for traffic danger particularly at the highway intersection. * Noise pollution from blasting, processing and trucks. * The potential for fly rock. * The social and economic effects - including the existence of alternative resources. * The effect on the amenity of the area, including tourism and land values. The surrounding environment of the quarry consists of State Forest to the north and west and small rural residential holdings to the south and east. Between the quarry site and lot 6 owned by an objector, Mr. McLachlan, lies a ridge which should help shield the visual impact of the quarry activities and to some extent mitigate noise impact. The site in fact lies in a gully which provides what has been described as a natural amphitheatre. Potential for water pollution and adequacy of sedimentation dam A number of witnesses addressed the issue of potential pollution of the Creek and Lake Termeil and the damage that this could cause. Mr. Doughton, a teacher with a B.A. in environmental science, expressed concern that iron sulphides could travel overground to the creek and thus into the Lake and also percolate through the rock into the water table. If this occurred life in the Lake could be seriously damaged. However, the analysis of the drill holes by the University of Wollongong and included in the EIS reveals no iron sulphides or anything similar in the basalt. In any event, bearing in mind the distance from the site to the creek and the Lake, I am not convinced that there will be any pollutant effect other than an insignificant one. The same may be said in relation to the possibility of pollution of the water table. I accept the evidence of Mr. Jones in this respect and supported by Mr. Linforth. Mr. McLachlan Junior, a well qualified civil engineer with experience in coal mining, gave evidence in the Council's case. He was concerned with the presence of silica in the basalt and the potential for pollution that this could cause. However, the drill hole analysis by the University of Wollongong also reveals no silica in the basalt. According to Mr. Jones silicate is associated with magnesium or iron in olivine in basalt but is different from SiO2 (silica). Basalt is resistant to chemical attack and is almost inert. Mr. James, a local tourist operator, fishing coach and real estate agent, was concerned that basalt sludge would find its way into the Lake, pollute the fluvial mud and radically affect life in the Lake including prawns. However, it is the opinion of Mr. Jones that there is likely to be a reduction in silt transport to the creek rather than the reverse. Mr. James' opinion is frankly one of an educated layman and in the light of the evidence on the issue lead in the applicant's case, I could not be convinced of the validity of his assertion. I can readily appreciate his fear and concern but my assessment of the evidence is that it does not rise above an understandable apprehension of what might occur. It was also suggested that the use of Anfo in the explosives could release pollutants. However, I accept the evidence of Mr. Jones that Anfo, which consists of ammonium nitrate and 4% blended diesel oil, cannot release the oil as a contaminant because it is bound to the ammonium nitrate. Associated with the above concerns about water pollution of the creek system is the adequacy of the proposed sedimentation dam for the quarry site. Mr. McLachlan Jnr. made some legitimate criticisms of the dam proposed in the EIS. Essentially he felt it was too small, of an incorrect shape and deficient in design. He conceded in cross-examination that it was possible to design a satisfactory dam for the site. A good deal of his criticisms were borne out by the evidence of Mr. Jones and Mr. Linforth. The former opted for a dam capacity of approximately 12ml and not 7.2ml in the EIS. Mr. Linforth, who is highly qualified in dam design and safety, specified 10.5ml as the required volume of the dam. He also specified the need for a drain to divert some 3.6ha of the catchment area out of a total catchment of 8.6ha. In his opinion there is sufficient room on the site for a dam of the size considered necessary. If certain design criteria were followed it was Mr. Linforth's opinion that there was no significant risk of failure of the structure. I accept his evidence. Generally I am of the opinion that the potential for water pollution is minimal and within acceptable limits. Visual impact Because the site is in a natural amphitheatre it enables the activity to be carried on in a way which will make it almost invisible (to the eye) from roads and other properties. The proposed mounding and perhaps part of the plant will be visible from the properties to the south, although for all intents and purposes not from any residence. The site is well screened from the access road, the highway and tourist areas. A 5m high earth berm to be constructed (and vegetated) will also assist the farmlets to the south. Additionally, a minimum setback of 20m from the contiguous boundary with lot 6 will help reduce the visual impact from that allotment. Whilst the area is one of undoubted natural scenic beauty the visual impact of the proposed quarry is mercifully small. Dust generation Concern has been expressed for the potential for dust generation from stripped areas, from crushing and processing, from stockpiles and from trucks using the access road. However, the potential for dust generation should be minimised by adherence to conditions requiring dust catching devices on the hydraulic drill, progressive rehabilitation and restoration of surface growth and the installation of fixed water spraying apparatus as required by the State Pollution Control Commission (SPCC). Since the crusher to be utilised is a "wet" process the product when stockpiled is likely to be bound together and dust should be reduced when dry. Moreover, the least frequent winds are in the northerly and southerly directions. Lemon Tree Road is not a public road and its upgrading will be dependent on the requirements of the Forestry Commission as owner. Water carts can be used to suppress dust on the road and it is possible that the Commission could require the section to the highway to be sealed. If the measures outlin ed in the EIS are strictly followed the problem of dust generation should be largely mitigated. Traffic and safety The sight distance on the highway to the Lemon Tree Road intersection is described by the City Engineer as "excellent". The applicant proposes to construct a type 3 intersection (with acceleration and deceleration lanes) at the junction, to the satisfaction of the Department of Main Roads. The heavy truck generation to and from the site will increase risks at the intersection with the highway, but this will be offset to a degree by a reduction of heavy vehicles on the highway which would otherwise bring material from further north. There may be some increase in the level of hazard along the access road but, in addition to the subject land, only one landowner (Mr. Fallon) has vehicular access to that road. The degree of any increased risk on Lemon Tree Road will in part depend upon the upgrading requirements of the Forestry Commission. Noise As with most hard rock quarry proposals noise figures high on the agenda of environmental issues. The EIS includes a noise impact assessment by Dick Benbow & Associates. This report considered the proposal (as per the EIS) and its impact on noise levels. In particular it addressed noise from blasting, overpressure and ground vibration, from plant and equipment and trucks. The nearest residences to the site range from 800m to 1,250m away. Mr. Benbow concluded that the quarry will be able to operate within the acoustic criteria of the SPCC and noted that a licence will need to be obtained from that body. In his assessment the quarry can be operated to have "negligible acoustic impact at the nearest residential areas". The City Planner addressed all aspects of noise generation and reviewed the EIS and the representations from the SPCC and Department of Mineral Resources (regarding blasting). In his opinion, if the EIS is correct then the SPCC criteria for resident comfort should be met and the existing background noise levels at the nearby residences should not increase by more than 5dBA. Other factors taken into account by the City Planner were the nature and size of the quarry, the proposed hours of operation and of blasting, the proposed frequency of operation and the topographic features and proposed attenuation measures. A number of residents expressed concern at the impact of noise on their environment. This is perfectly understandable given that the area is very quiet and the majority of activities are agricultural in nature. It is the opinion of Mr. Frazer, a town planner called by the Council, that the noise from the drilling and crushing processes will be the most pervasive of the various noise sources. He doubted the accuracy of the stated noise levels in the EIS. However, no other noise measurements have been taken and Mr. Benbow was not required for cross-examination. On my assessment of all of the evidence placed before the Court on the various sources of noise impact on the surrounding lands I cannot conclude that the application should be refused on that basis. Rather, stringent conditions and policing should contain the various noise impacts within acceptable limits. Fly rock Concern has been expressed by some objectors of the hazard of fly rock from the primary blasting (there is to be no secondary blasting). Again, their fears and concerns are readily appreciated. However, the only land at risk is lot 6 owned by the McLachlans. This is used for grazing. In my opinion the evidence does not disclose the likelihood of fly rock from primary blasting passing onto lot 6. The manner proposed for the explosions and the existence of a ridge and berm between the source and lot 6 mitigate against this possibility. Notice of any blast must be given to nearby residents and the opportunity is therefore available to move any stock out of the vicinity of range from conceivable fly rock. It must also be kept in mind that the blasting will be confined to a maximum of 10 per year of approximately l,000m3 for each blast. Mr. Jones, an engineer with considerable experience with the blasting of rock, concluded that fly rock can be avoided by proper practice (see Ex. 8). In my opinion fly rock should not be a significant problem and may be controlled by appropriate conditions. Alternative resources It is argued that alternative resources of basalt were not adequately examined in the EIS and there is a degree of truth in this assertion. Indeed, it may be said that the EIS falls short on a number of issues. Nevertheless, it adequately raises issues for consideration and fulfils one of its purposes as an aid to evaluation of issues and decision making. The inadequacy of the examination of alternative resources in the EIS has been supplemented by further documentation and evidence. In my opinion I could not conclude that the identified alternative resources ought be developed with priority over this one. I have very little idea of the environmental consequences associated with alternative developments nor any means of making a comparison with the subject application. Economic viability Similarly, I am not in a position to conclude that the proposal is not a viable one. Certainly, if it were not for the introduction by the applicants' partner of the majority of expensive processing plant and equipment, (as his contribution to capital), and the running of the quarry in tandem with a granite quarry at Moruya, there may be some doubt. However, on the material before the Court I do not believe that I could refuse consent on the ground of economic viability. Additional amenity issues A number of other amenity considerations have been raised in addition to those considered earlier in these reasons. These include the potential affect on tourism; the affect on land values; the possibility of Lake Termeil becoming a National Park and the effect of trucks on other users of Lemon Tree Road (particularly the Fallon family). This is by no means an exhaustive list of all of the concerns expressed by objectors. Time and space does not permit me to set out their views extensively. Suffice to say that all of the written objections (and letters of support) and the oral evidence tendered at the hearing, has been taken into account. Mr. James, who is amongst other things, Chairman of the Tabourie Lake Environmental Centre, expressed concern at the affect of a hard rock quarry on the local tourism industry. However, the City Planner indicated in his report to the Council that the quarry was unlikely to lead to the industry suffering substantially. Indeed, the quarry is virtually hidden from tourists and cannot be seen from the highway, nor Lemon Tree Road. On the evidence I could not conclude that there will be any adverse effect on tourism. The nearby residents fear an appreciable loss in value of their properties and some have indicated their intention to move in the event of the quarry proceeding. Mr. James gave evidence of a drop of 60% in values of properties adjoining the quarry. Even if noise and other nuisance from the operations were minimal he opined that values would still be significantly affected by the very existence of the quarry. While it may be accepted that the mere existence of a quarry will have some effect on land values, I am unable to accept Mr. James' evidence of values. He is not a qualified valuer and has not made any real study of comparable situations elsewhere. His evidence on value is also seriously at odds with the evidence of an objector, Mr. Murray Jnr. In the result I would have difficulty relying on this aspect of Mr. James' evidence without corroborating valuation evidence. I also note that lot 6 contains a significant portion of the very same basalt resource as is proposed to be quarried by the applicant. The existence of this resource on the McLachlans' land must affect its value. Mr. Doughton, the President of the Milton branch of the National Parks Association, canvassed the possibility of Lake Termeil being incorporated into the Murramarang National Park. While it may be logical to include the area there is no indication that this will occur, except for a coastal strip of Crown land. In any event, I do not conclude that the existence of the quarry will have any significant effect on the area of Lake Termeil if it becomes National Park. Similarly, the evidence does not establish that the quarry will have any significant adverse effect on the designated wetlands in Lake Termeil. The use of 2km of Lemon Tree Road to the highway by heavy trucks will certainly affect other users of this forest road. Principally, it will affect Mr. Fallon and his family. His present sole access is to that road entering at a point between the quarry and the highway. Mr. Fallon is understandably concerned at the potential danger to his family (and others) caused by the introduction of heavy trucks onto the gravel road. Quite obviously, the road will need to be upgraded to the requirements of the Forestry Commission to be able to be used by heavy trucks. Mr. Fallon's family will also be affected by truck noise from Lemon Tree Road. However, as is the case with the majority of adjoining residences, the prime source of traffic noise is from the adjacent Princes Highway. Mr. Fallon did have direct road access to the highway but chose to close it off and obtain access through the Forest (with permission from the Commission) and onto Lemon Tree Road. It may be that he will be able to re-establish entry to the hi ghway since he has an appreciable frontage to it. I accept Mr. Fallon's understandable concerns, but like many of the issues in this application it is a question of balancing all relevant factors and, sometimes, one issue against another. To some extent his concerns, (and indeed those of others), can be mitigated by the imposition of conditions upon the consent and the rigorous policing of them by the Council, other relevant public authorities and members of the public. As I have said these reasons for Judgment do not purport to be a thorough and comprehensive analysis of all of the grievances of the objectors nor of every impact and potential impact of the proposal on the environment (see Bignall v. Greater Taree City Council (Unreported 6 July 1987) and Capital Quarries Pty. Ltd. v. Gunning Shire Council (Unreported l4 August 1987). Nevertheless, in assessing the development against all of the relevant considerations arising under section 90 of the Environmental Planning and Assessment Act, including the circumstances of the case and the public interest, I would not refuse conditional consent. This opinion is expressed both on a consideration of each of the individual impacts as well as their cumulative effect on the surrounding environment. However, the development will need to be carefully conditioned to reach the level of sensitivity to the local environment outlined in the EIS. Conditions The majority of conditions are agreed between the applicant and the Council, however, there are still some areas of dispute. Condition 3. This deals with a bank guarantee to be provided by the applicant to indemnify the Council in the event of certain happenings set out in the proposed condition. The Council seeks the annual updating of the bond by 10% to account for inflation. Alternatively the Council proposes annual updating by reference to the Consumer Price Index. The applicant argues that either proposal may be unfair and suggests a mechanism for agreement to be reached between the parties on the amount of the guarantee referable to rehabilitation work. I favour the suggestion of changes in the amount of the bond by reference to the CPI. The condition encompasses more than rehabilitation of the site and in any event I think that the applicant's proposal may be difficult to implement. I do not regard the condition as unreasonable. Condition 7. The issue is whether the consent be limited to 10 years sought by Council or to the 23 year period envisaged by the EIS. I accept the argument of the City Planner that by fixing a definite time limit to the consent there is a greater certainty that the control measures can be monitored (including rehabilitation). Additionally, it enables a proper assessment to be made of the actual effect on the environment in the event of a fresh application being made. In my opinion 23 years is too long a period to grant consent when many of the impacts can only be assessed on a theoretical basis. On the other hand 10 years, with of course the right to make a further application, should ensure viability. Conditions 17 and 19 concern improvements to Lemon Tree Road and the entry to the site from that road. Council proposes that the road be sealed and all work to be to the satisfaction of the City Engineer. It also requires a 6m wide separate entry/exit to the site. However, the road is owned by the Forestry Commission and while upgrading is required by reason of the development, in my opinion it should be to the requirements and satisfaction of the Commission and not the Council. For example, I have no evidence that the Commission will agree to its road being sealed. Condition 34 concerns the number of the average monthly and maximum daily truck movements. The applicant suggests an average not exceeding 15 per day and the Council 5, over any month. The applicant also suggests a maximum number of movements leaving the site of 30 per day and the Council suggests 10. In my opinion a reasonable condition is that the average number of laden vehicular movements leaving the site should not exceed 10 per day over any month and the maximum number of daily movements leaving the site should not exceed 15. In the ultimate I am satisfied on a consideration of all of the evidence and submissions that consent should be granted subject to the conditions attached to this Judgment. Accordingly, I order that:- l. The appeal is upheld. 2. Development consent be granted to the application for a basalt quarry and associated processing activities at Portion 73, Parish of Termeil, Lake Tabourie, subject to the conditions listed in the attached Schedule. 3. The exhibits may be returned. 4. No order as to costs. 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.