Land and Environment Court of New South Wales CITATION : Reavill Farm Pty Limited v Lismore City Council [2010] NSWLEC 1207 APPLICANT Reavill Farm Pty Limited PARTIES : RESPONDENT Lismore City Council FILE NUMBER(S) : 10191 of 2010 CORAM: Moore SC KEY ISSUES: DEVELOPMENT CONSENT - DEVELOPMENT MODIFICATION - EXTRACTIVE INDUSTRY :- is the mofified development substantially the same as the original development LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 96(2) Vasic Pty Limited v Penrith City Council (Stein J, unreported February 1992) CASES CITED: Moto Projects No. 2 Pty Limited) v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298 Moy v Warringah Council [2004] NSWCCA 77; (2004) 133 LGERA 49; (2004) 142 A Crim R 577 Manzie v Willoughby City Council (1996) NSWLEC 26 DATES OF HEARING: 23 and 24 June, 27 July 2010 DATE OF JUDGMENT: 3 August 2010 APPLICANT Mr T Robertson SC INSTRUCTED BY Burrell Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms S Duggan, barrister INSTRUCTED BY Sparke Helmore JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES MOORE SC 3 August 2010 10/10191 Reavill Farm Pty Limited v Lismore City Council JUDGMENT Introduction 1 SENIOR COMMISSIONER: The rolling hills and the small valleys of the coastal hinterland to the south-east of Lismore host many differing activities of residents and businesses of the region. Amongst them, in that rural and rural residential landscape, is located a small sandstone quarry known as Champions Quarry. The quarrying activities are extracting ripped and broken sandstone from a pit that faces, generally, north-east from the bottom half of the southern slope of one of these valleys. 2 The closest residence to the quarrying activities is that of Mr and Mrs Woolley located some 420 m to the east of the quarry face and at a level, in the landscape, somewhat lower than the uppermost bench upon which quarrying activities take place. It is the relationship between that dwelling and the quarry that gives rise to these proceedings. Past approval processes 3 The quarry has been operating for over 17 years to produce small volumes of ripped sandstone. In 2006, a further development approval was given increasing the annual capacity of the quarry to 29,000 m³. One of the conditions of that development approval (2005/999) was that, at a location marked on one of the plans forming part of the application (and referenced in condition 1 of the approval) there would be planted an 8 m wide vegetated buffer commencing at approximately the middle point of the quarry on its north-eastern orientation and then curving to the north-west following, in its initial elements on the plan, the line of the outer extent of the proposed quarry operations. The nature and detail of what I have concluded was approved as required by this element of the development consent, together with a copy (Figures 3 and 4) of portions of each of the relevant plans that are critical to understanding my conclusions, appear later in this decision. 4 Two subsequent modification applications to the 2006 expansion approval were made to (and approved by) Lismore City Council (the council). These modifications were both made in December 2006. Both of them relate to the vegetated buffer strip noted earlier. In the order that they were tendered in the council's bundle of materials in the proceedings, the first of these modifications [this being made pursuant to s 96(1) of the Environmental Planning and Assessment Act 1979 (the Act)] was to condition 14 of the conditions of development consent for the expanded quarry operations. Condition 14 relates to tree planting requirements and was originally in the following form: Progressive revegetation and ultimate rehabilitation to be carried out as generally outlined in Section 3.7 "Vegetation Management" of the Statement of Environmental Effects submitted with the development application. Tree species in rehabilitation works to include suitable Koala feed trees, and for which the applicant should liaise with the Lismore branch of the Friends of the Koala Inc. 5 It was modified by the removal of the second sentence so it now only reads: Progressive revegetation and ultimate rehabilitation to be carried out as generally outlined in Section 3.7 "Vegetation Management" of the Statement of Environmental Effects submitted with the development application. 6 In these proceedings, nothing turns on the terms of condition 14. 7 The second modification made in December 2006 was a modification to condition 13 – that being the condition that relates to the vegetated buffer strip earlier noted. Condition 13 originally read: The landscape buffer strip 8 m wide (as indicated on plan 05/814 Sheet 3) is to be fully planted and completed as a matter of first priority. All plants to be maintained and watered to ensure healthy growth. Council's Bushland Management Officer to be notified when the planting is complete, to permit inspection. 8 The modification [this being made pursuant to s 96(2) of the Act] changed only the reference in condition 13 to the plan number showing the proposed location of the vegetated buffer strip. This change in plan notation altered the required location of the vegetated buffer strip. The modified version of condition 13 was in the following terms: The landscape buffer strip 8 m wide (as indicated on plan SECT.96 DA 2005/999 ) is to be fully planted and completed as a matter of first priority. All plants to be maintained and watered to ensure healthy growth. Council's Bushland Management Officer to be notified when the planting is complete, to permit inspection. 9 Over a period commencing after the 2006 modification of the development consent changing the plan number referenced in condition 13, the quarry company constructed a number of earth mounds in the vicinity of the south-western corner of the Woolleys' property and along this property boundary toward the north-east. These mounds were constructed over a period of time and the most recent of these is incomplete (as a consequence of an officer of the council instructing the quarry company to cease work – with that cessation taking place in late 2008). A photograph from the statement of evidence from Mr Scott, the quarry company's planner, shows the nature of part of one of these mounds when viewed from just outside the boundary of the Woolleys' property (but on the quarry company's property). 10 As a consequence, there are now a series of earth mounds located on the quarry company's land in the vicinity of the Woolleys' boundary. A plan has been produced showing the layout of those mounds and the proposed extension and infill elements originally sought to be approved by this modification application. 11 In addition to the mounds shown on the plan reproduced below (Figure 2), the quarrying company has also placed two additional mounds of excavated material to the west of the fence line depicted below running adjacent to the western line of three trees shown on this plan. A copy of the plan of the mounds is reproduced below with a red marking (added by me) – the relevance of which is discussed in the description of the site inspection. 12 During the course of the preparatory activities for the hearing (and during the hearing itself) the plan for the proposed modification underwent some revision – primarily revision with respect to mound design resulting from topographic survey data inconsistencies (a matter discussed later in the context of the expert acoustic evidence). The site inspection 13 On a misty morning, intermittently punctuated by heavy downpours, a site inspection took place of the quarry, the various earth emplacements on the quarry property adjacent to the boundary with the Woolleys' residence and of the various aspects from within the curtilage of the Woolleys' residence looking toward and past these various earth mounds. 14 During the course of the site inspection, there were two particular elements relevant to matters in the proceedings. First, during the course of inspecting the earth mounds on the quarry property, I climbed the longest of them and walked to its north-western end (adjacent to the canopy of an established fig tree located on the quarry property between this element of the earth mounds and the boundary of the Woolleys' property). This point is the one marked in red in the plan extract (reproduced earlier as Figure 2) showing these earth mounds. At that point, I heard informal evidence from Mr Muller and Mr Tumney (the acoustic experts for the quarry and the council respectively) and from Mr Wyatt and Dr Lamb (the visual impact assessment experts for the quarry and the council respectively). The nature of their overall conclusions – to the necessary extent relevant to these proceedings – is discussed later in this decision. 15 After completing an inspection of these mounds, we then proceeded into the Woolleys' property. During the course of the inspection on the Woolleys' property, Mr and Mrs Woolley read separate prepared statements concerning their objections to the proposed retrospective approval of the existing mounds and the proposed extension and enlargements of them. 16 During the course of observing the outlook from within the Woolleys' property, at a number of locations, Mr Woolley was cross-examined by Mr Robertson SC, counsel for the quarry, concerning the recent removal of a number of the lower branches of various trees growing within the property in proximity of the line of the boundary to the quarry's property. 17 Notes were taken by the council's solicitor during the course of the on-site evidence and these notes, after being checked by the quarry's solicitor, were subsequently tendered. The issues in the proceedings 18 In the context of the unfolding of the evidence in the proceedings, effectively two major issues require my determination. The first of these is whether, as a jurisdictional prerequisite for a modification application made pursuant to s 96(2) of the Act, it is possible for me to conclude that the resultant development, (in its ultimately redesigned form following joint conferencing by the acoustic experts and, subsequently, by the visual impact assessment experts), if constructed, will result in a development that is substantially the same as the development that was originally approved (and before the consent as originally granted was subsequently modified). 19 The second is whether, if the revised design of the mounds, as ultimately proposed, passes the jurisdictional test to being granted consent for modification, is it appropriate, on the merits of the proposed expanded and reshaped mound and its location, to do so in light of its impacts on the outlook from the Woolleys' property. 20 The council also raised a lesser issue as to whether or not the consent of the local water supply authority, Rous Water, was necessary for the construction of the proposed mound given the location of an easement in favour of Rous Water for the purposes of a pipe to supply potable water to the Woolleys' property, amongst others. As I understand it, this issue was subsequently resolved by agreement on a condition of consent if I were to approve the modification application. 21 It is important to note, at this time, a contextual matter that relates to these proceedings and other Class 1 proceedings that have been commenced (but not determined) between the quarry operator and the council concerning this quarry. Those separate proceedings are a development application appeal pursuant to s 97 of the Act concerning a proposed expansion of the quarry. If the quarry company were to fail in these proceedings on the basis of the first of the issues (because there is no jurisdiction to approve the proposed alteration through the s 96(2) modification application process), such as refusal would not constitute any expression of opinion concerning the merits or otherwise of the proposed mound. Ballina courthouse proceedings 22 After the site inspection, the hearing resumed at Ballina courthouse. The quarry company's surveyor provided further survey information showing revised and different contour heights in the vicinity of portions of the existing and proposed mounds. 23 Between the first and second days of this hearing, the acoustic experts undertook further detailed analysis, including (to the extent that it was possible to do so without access to their office computing resources) of the further survey information provided by the quarry company's surveyor. 24 The work undertaken overnight by the acoustic experts resulted in preparation by them of the three possible locations for a mound that would enable the satisfaction of condition 27 of the 2006 consent. This work was heavily qualified because of their inability to undertake detailed computer analysis of the revised topographic contour information provided on behalf of the quarry company. 25 As a consequence, they were only able to produce a set of preliminary and tentative diagrams showing indicative locations of what might be further revised versions of the proposed mound that would satisfy the requirements of condition 27. That condition, not altered during any earlier modification process, requires, inter alia, the quarry company to ensure that there is no offensive noise impact at the boundary of the Woolleys' property. 26 As a consequence of lack of access to computing resources for the acoustic experts, as precise options for location (and a preferred location) for an acoustically effective mound could not be designated (as to its length, width and vertical dimensions), the quarry company was granted an adjournment – on terms that the quarry company would meet costs for additional work by the council's experts to maximum nominated amounts. 27 The purpose of the adjournment was to permit preparation of accurate acoustically effective mound design options (including a preferred option for consideration by the visual impact assessment experts). 28 A timetable was set for the work to be undertaken by the acoustic experts with, following the definition by them of the necessary length, width and height of acoustically effective under being determined, the visual impact assessment experts and the quarry company's landscaping expert, Mr Elks, to be involved in a process that considered the appearance of the resultant landscaped proposed mound. The hearing was adjourned to approximately 5 weeks to enable this work programme to occur with the resumed hearing to be in Sydney. What was approved and what is now proposed? 29 This task must commence with a clear definition of what was the originally approved development granted consent in the quarrying volume expansion application approved in 2006. The Act makes it clear, by the express words in s 96(2), that the comparison assessment I am required to undertake is between that which was originally approved in 2006 and that which will result if the present modification application were to be approved. The modification approvals to conditions 14 and 13, in December 2006, play no part in this comparative assessment process. 30 There are two conditions in the 2006 development consent that are relevant in this regard. The first of these is condition 1, a condition in the following terms: 1. In granting this development consent, Council requires: - the development, - all roads/civil works, - lot boundaries, and - areas subject to any amendment or modification called for in the following conditions be substantially in accordance with the stamped approved plan(s) No. 05/814 Sheets 1 - 3, 05/814 Sheets 4 and 5 (amended 11/5/06), 05/814 Sheets 6 and 7, 06/858 Sheet 8 Issue A dated 6/7/06 and Job No. 06188 Sedimentation Pond Details dated 11/5/06 and/or supporting documents submitted with the application. A copy/copies of the approved plan is/are attached to this consent. 31 The second relevant condition is condition 13 a condition that was imposed in the original consent in the following terms: The landscape buffer strip 8 m wide (as indicated on plan 05/814 Sheet 3) is to be fully planted and completed as a matter of first priority. All plants to be maintained and watered to ensure healthy growth. Council's Bushland Management Officer to be notified when the planting is complete, to permit inspection. 32 To understand that which follows, it is appropriate, first, to reproduce elements of the two plans that show the location of the 8 m vegetative screen approved in the original consent. These are plan numbers 3 and 4 and they are reproduced below, in that order. The green marking on Sheet 4 (Figure 4) has been incorporated by me for purposes later discussed. 33 The other relevant documents are those that are in imported into the development consent by the words in condition 1 – other documents lodged in support of the application. These documents, relevant to these proceedings, comprised: - A Statement of Environmental Effects prepared by Mr Scott, a town planner who has also prepared a statement of evidence in these proceedings on behalf of the quarry company; and - A letter written by Mr Scott to the council, dated 18 May 2006, providing some supplementary responses to questions raised by the council and attaching a copy of the acoustic report by Greg Alderson and Associates Pty Ltd to which reference will be made later. 34 Although these documents were not part of the council's original tender bundle, they were subsequently tendered, at my request, to provide assistance in understanding what was required by the terms of condition 13. 35 At the commencement of the second day at Ballina courthouse, I drew to the attention of the advocates, to two contour lines on Figure 4 (these contours have been identified by me by the green box marking on Figure 4 above). 36 Each of these contours intersect the proposed vegetative strip and do not show any alterations in height, as would be expected on a survey plan if such vegetative strip were proposed to be located atop some form of earthworks at an elevation significantly above the existing natural ground level. 37 At the commencement of the second day, I also took Ms Duggan, barrister for the council, and Mr Robertson through my analysis of the documents incorporated in the development consent by virtue of condition 1. This analysis was directed to identifying those places that were relevant (whether by inclusion or exclusion) to the vegetative buffer. 38 The matters I put to them comprised a total of ten elements in the text of the various documents from which I considered relevant inferences were capable of being drawn, either of a constructive or negative nature, concerning what was intended by condition 13. Although I do not reproduce all of those text elements, several are quoted later where relevant. 39 I asked the advocates to address me, at an appropriate time, on the question of whether or not it was appropriate that I should conclude that the proposed vegetative strip was one intended to be comprised entirely of plantings at grade as I had reached the tentative conclusion that this was the position. I understood, from the subsequent positions adopted, that this tentative conclusion was embraced as correct by the parties. 40 As the starting point for my assessment of the jurisdictional question, it is necessary that I define, by reference to conditions 1 and 13, precisely what is required by condition 13 as originally approved. To assist with this, in the context of the elements of those documents to which I had taken the advocates, I reproduce, in its entirety, only one section of the Statement of Environmental Effects. It is taken from pages 24 and 25 and is in the following terms: 2.2.10 Landscape screening and buffers Development Plans 3 of 8 and 4 of 8 show the location of landscape screening and buffer areas and vegetation regeneration areas. Landscape screening and buffer areas are located to screen the working quarry from adjoining lands and will comprise plantings of native indigenous trees. Table No. 9 identifies the species, approximate mature height, growth rates and general location of tree species that are proposed to be planted in the landscape screening and buffer areas. Table No. 9 Landscape and buffers – tree species Tree Height (m) Growth rate Comment Lillypilly 6-8 Medium Rainforest tree and water tolerant – suitable for planting below and north of existing quarry Acmena smithii Grey box 15-20 Fast Good shade tree and water tolerant will grow in poor conditions – suitable for planting north of existing quarry Eucalyptus propinqua Steel box 30-40 Fast Will grow in good and poor conditions and areas with high rainfall – suitable for planting north of existing quarry Eucalyptus rummeryi Red bloodwood 15-30 Fast Hardy tree – is suited to a range of soil types. Eucalyptus gummifera Hoop pine 25-35 Moderate Grows on poor to good, deep soils well-drained. Araucaria cunninghamii The regeneration areas are proposed to be primarily managed as naturally regenerating areas with minimal disturbance such as weed removal only. 41 The conclusion that I have reached that the proposed vegetative strip was one intended to be comprised entirely of plantings at grade is of considerable relevance to my ultimate conclusion (on the s 96(2)(a) question) is that I do not have jurisdiction to approve the modification sought. Therefore I consider it appropriate to set out how I reached this conclusion. 42 To enable understanding of my reasoning, it is necessary, first, to explain a little more concerning the topography of the quarry site in the vicinity of where the quarrying activities are being undertaken. 43 As can be seen from the plans earlier reproduced, the natural slope of the land as it would have been (disregarding the quarry pit excavations), slopes from west to east with there being a gentle rounding in a north/south direction so that the quarry pit is located in a generally west to east orientation from its highest to lowest point. Outside the lower outer walls of the quarry pit – the quarry pit area being fenced off to the east – the land is grassland with a gentle, indeed almost imperceptible but nonetheless extant, slope to the east and north-east toward what appeared on the site inspection to be an ephemeral waterway running along the valley floor in a generally south to north direction. 44 Although the 8 m wide vegetative strip (if in place as approved) would not have its down slope edges at the north-east ends impinging on the immediate banks of the waterway, they would be in the general vicinity of the riparian zone of this waterway. 45 It is, at this point, appropriate to note that the first three tree species proposed in the indicative planting table (extracted earlier from the Statement of Environmental Effects) are described in terms that indicates that they are water tolerant in their planting zones – not a feature that would be necessary if they were to be planted on some form of elevated earthworks but certainly an attribute that would assist in their survival and growth of if they were to be planted at grade at the location indicated on the plans. 46 All of the other elements of the documents imported by condition 1 to which I took the advocates (when coupled with the contour of information on Figure 4 and the extracted material from the Statement of Environmental Effects set out above) lead, in my assessment, to the inescapable conclusion that the proposed 8 m wide vegetative strip was to be planted at grade without any earthworks save, potentially, such topsoil and composting as might have been necessary for the planting process – but certainly no earthworks of any significance whatsoever or having the effect of elevating those plantings above grade. 47 The plantings that would have been incorporated in the vegetative strip if it had been established according to the requirements of the original consent would have comprised plantings from the selection of the species set out earlier in the extract from the Statement of Environmental Effects. 48 Between the adjournment at Ballina courthouse and the resumption of the substantive hearing in Sydney, the two acoustic experts prepared a design for the mound that would achieve acoustic compliance with condition 27 of the development consent for the Woolleys' residence. Leave was given, at an interlocutory hearing, to the quarry company to amend its application further to rely on the plans for this design – known as the option C design. The option C design incorporates significant portions of the existing earthen mounds and reorients the line of the final, single mound more toward the north – at its northern end, shortening the length of the existing mound and moving it further away from the Woolleys' property. However, implementation of this design requires the addition of significant volumes of earth as the height of the mound needed to ensure acoustic compliance by the quarrying operations for the Woolleys' property requires the mound to be increased in height up to a maximum of 4 m at its northern end. A copy of the plan of the option C design is reproduced below: 49 The plans for the option C design include a series of sections showing the existing mound elements that are to be subsumed by the amended design and the extent of the additional earth emplacement necessary to achieve the height required for acoustic compliance. To assist understanding the dimensions of the proposed final earth mound, I reproduce two sections from the option C plans. The first is in the vicinity of the southern end, that is the end that is toward the end of the mound where the natural underlying ground level is higher as a consequence of the gentle slope and of the existing natural ground level from south to north. The second section is toward the northern end of the mound where the amount of earthen materials needing to be emplaced is greater as a consequence of the gentle slope of the underlying ground. These are reproduced below as Figures 6 and 7 respectively: 50 The option C plans do not provide specific volumes of the existing earthen materials in the present mounds nor a calculation of the additional volume of earthen material necessary to increase the height of the existing mound to result in the option C design outcome. 51 However, given the length of the various mounds that are presently adjacent to the boundary with the Woolleys' property, it is possible to undertake a crude calculation of the volume of material presently located there. My estimate of this material is that there is presently somewhere between 2000 m³ and 4000 m³ of material incorporated in the present mounds. A further calculation, based on a south to north length of the option C design of ~ 125 m coupled with an average cross sectional area derived by taking the average height from the various sections of the option C plans and the average width at the base from these plans, causes me to estimate that the volume of earthen material necessary to give effect to the option C design is somewhere between 4000 m³ and 7500 m³ of material. As a consequence, it would seem to me that, in addition to the already substantial volumes of earthen material sought to be regularised by this modification application (albeit in a reshaped and partially relocated form), there would be the necessity to approximately double the volume of earthen material incorporated in the mound by the emplacement of multiple thousands of cubic metres of additional earthen material. The resumed hearing in Sydney 52 The resumed hearing in Sydney heard concurrent evidence from the acoustic experts and the visual impact assessment experts. Given the conclusion that I have reached concerning the jurisdictional issue, for the reasons discussed below, it is not necessary to canvass the merit evidence and the reasons why Mr Wyatt considered that the option C mound, if landscaped in accordance with the proposed landscaping plan, would be visually acceptable from all relevant points in the Wooleys' property and why Dr Lamb disagreed with this conclusion. 53 In addition, although the acoustic experts, in their concurrent evidence, canvassed a number of matters arising from the conditions of consent that would be appropriate if the modification application were to be approved on the merits (ultimately reaching agreement on the terms of the various acoustic conditions that would be appropriate and acceptable to both the quarry company and the council), these matters, too, do not need to be dealt with given my jurisdictional conclusion. 54 However, it is clear from the evidence of the two acoustic experts that they agree that construction of the earth mound in the option C design is the appropriate option to be constructed at that location and in that form for noise compliance for the Woolleys' property to be achieved by noise attenuation shielding in the general vicinity of the present earth mounds. Acoustic requirements of the current consent 55 The proposed vegetated earth mound for which approval is sought in this modification application is therefore clearly intended to serve two separate and distinct purposes. The first of them is to provide a visual screening of the quarry when viewed, as it would be possible to do so, from various locations within the Woolleys' property. The second is to perform the essential function of providing acoustic shielding to the Woolleys' property. 56 This latter necessity, not anticipated in the original development application and its Statement of Environmental Effects now arises because the original acoustic assessment undertaken by Greg Alderson and Associates Pty Ltd to accompany the original development application was seriously deficient, indeed was fundamentally flawed, in its assessment of the potential for adverse acoustic impact on the Woolleys' property. 57 For reasons that are not readily explained, the background readings for the Woolleys' property reported in this original acoustic assessment (and relied upon by the council and, to be fair, by the quarry company and Mr Scott, its planner), overstated the background levels at the Woolleys' property by some 10 dB(A). 58 As a consequence, the original development application was framed against a permitted noise emission at the Woolleys' property of 45.7 dB(A) – this being the average background of 40.7 dB(A) plus a permitted exceedance margin of 5 dB(A). However, the correct background noise level upon which the assessment should have been undertaken was a background level at the Woolleys' property of 32 dB(A) which, with the 5 dB(A) allowance, resulted in a permissible level at the receiving property 10 dB(A) lower than that which was envisaged by the original acoustic assessment. 59 Such a difference in permitted noise level at the Woolleys' property is highly significant and required (and likely still requires) the taking of ameliorative measures if the quarry is to operate within its lawful acoustic limits. 60 It is in the context of satisfying foundational acoustic requirements of the development consent in addition to providing visual screening that consent is sought for this vegetated earthen structure in the vicinity of the boundary with the Woolleys' property. Quarry company's submissions 61 In support of the proposition, if I understood him correctly, that the possibility of an earthen structure such as is contemplated by this modification was capable of being inferred as being contemplated by the original proposal, Mr Robertson took me to a number of conditions in the original development consent relating to potential noise impacts and their control. These are conditions 26 and 27 of the original development consent. Condition 26 is in the following terms: An Extractive Industry Management Plan (EIMP) for the operation of the development must be submitted to and approved by Council prior to commencement of extraction works associated with this application. The EIMP shall clearly identify responsibilities, practices, procedures, processes, and resources for the implementation, measurement, evaluation and review and improvement of the quarry activity. The EIMP must be consistent with the Statement of Environmental Effects, Noise Impact Assessment and development consent. The plan is to be prepared in consultation with Council and relevant State Government agencies and shall satisfy the form and content requirements of Annexure 4 of Development Control Plan No. 29 – Extractive Industries. 62 Condition 27 is in the following terms: The proposed landuse shall not result in the emission of "offensive noise" when measured at the boundary of the nearest affected residents and objectively being 5dB(a) above the background noise level (dB(A) 90 15 minutes when assessed in accordance with the NSW Industrial Noise Policy . Then follows (not relevant for these proceedings) the definition of offensive noise . 63 Mr Robertson also took me to condition 35 of the development consent that deals with the requirement for a Quarry Management Plan. Condition 35 is in the following terms: Submission of a Plan of Management (PoM) prepared by suitably qualified person to the council for approval pride when he operations commencing. The PoM is to include at least the following details: * Hours of operation (ensure compliance with Condition No. 7). * Numbers, type and location (if fixed plant) of plant and machinery. * Expected life of pit. * A number of employees on site and off site. * Employee facilities. * Operational procedures including control of noxious weeds, disposal of pollutants, effluent etc. * Proposals for ongoing environmental monitoring and reporting, including associated operator training. * Code of Practice for trucking operations. * Method of recording material sales, and required advices to relevant authorities. * Staging completion and progressive rehabilitation works. * Monitoring of soil PH in stormwater runoff. * Stormwater/sedimentation pondage marker stakes and monitoring. * Buffer plantation and ongoing maintenance for effectiveness. 64 A Quarry Management Plan was subsequently provided by the quarry company to the council in satisfaction of condition 35 and, by subsequent communication, was adopted by the quarry company as being in satisfaction of the requirement for the plan (with a different title) required by condition 26. The council appears to have accepted that this Quarry Management Plan was an appropriate document to satisfy the requirements of both conditions 26 and 35. As a consequence, I have proceeded to consider the document on that basis. 65 Mr Robertson took me to two areas of the Quarry Management Plan. The Quarry Management Plan is, obviously, a document that is to be read in conjunction with the approved layout plans for the quarry. 66 The first element of the Quarry Management Plan that was relied upon was that dealing with noise monitoring. This extract from page 9 of the Quarry Management Plan is in the following terms: Noise monitoring Background noise levels have been independently assessed at key boundary points during operation and non-operational periods and are documented future reference. A noise monitoring station will also be maintained at the closest boundary monitoring point to the working quarry area and will be equipped with data logging. The results of the noise metering will be documented for future reference and assessed by champions quarry staff on a quarterly basis. Within the quarry working areas operational noise levels will be assessed by Champions Quarry staff on a daily basis to ensure noise levels are kept below acceptable standards. Excessive noise generation will be point source identified and remedial measures taken by a variety of noise attenuation measures including exhausts modifications, barrier emplacements, soundproofing enclosures, rubberising components, and generally plant and equipment location and use. 67 The second element of the Quarry Management Plan that was relied upon was that dealing with buffer zones. The relevant extract from page 13 of the Quarry Management Plan is in the following terms: Buffer Plantation and on-going maintenance for effectiveness Environmental buffers will be established within the sediment recovery systems to maximise sedimentation within each individual environmental works further reducing the erosive potential of surface water run-off and within the adjoining properties. The establishment of these vegetative buffers will be in conjunction with engineered environmental works and will be maintained by Champions Quarry Staff. Vegetation type will be as per guidelines or by direct consultation with appropriate governmental agencies. The sediment extraction from the environmental works will be achieved in a manner that minimises disturbance to the vegetative buffers and will be conducted by Champions Quarry staff. The environmental works associated with the sediment recovery system will be fenced to prevent animal associated disturbances to the vegetative buffers and to the associated sedimentation and measuring apparatus. The buffer tree planting locations may be varied due to the upcoming lodgement of a new D.A. with Lismore City Council. This will significantly enlarge the vegetative buffer zone widths and the extent of planting rows. 68 If I understood his submissions correctly, Mr Robertson asks me to accept that a combination of conditions 26 and 35 of the existing consent (together with the acceptance by the council of the Quarry Management Plan as being in satisfaction of the plan production requirements of those conditions) means that the quarry company can rely on the two elements earlier quoted from the Quarry Management Plan as providing a foundation for an earthen noise attenuation mound, at least as a concept, being something that arises out of and is contemplated by the original development consent. 69 I am unable to accept this submission. 70 Although the acceptance by the council of the Quarry Management Plan may have imported a minor degree of flexibility with respect to how noise compliance was to be achieved and a similar minor degree of flexibility with respect to the plantings and the like, condition 1 still required the development to be implemented in a fashion that was generally in accordance with the plans and documents incorporated in the development consent by virtue of this condition. In particular, I am unable to accept that the concept of barrier emplacements for noise attenuation envisaged by the extract from page 9 of the Quarry Management Plan was required for any implementation of noise control. This is obvious from the Statement of Environmental Effects where, on page 35 and 36, it makes it clear that noise compliance is expected from the ordinary design and operation of the quarry without major noise attenuation works: 4.2.2 Noise issues and control The main source of noise generation at the quarry is likely to be during the ripping, excavation and loading part of the operation. The closest noise receptor to the existing quarry is the dwelling located on the land above RL23.8m and approximately 380m to the east of the quarry. Table No.10 identifies the land on which dwellings are situated within 800m of the quarry. [table omitted] None of the dwellings on the land identified in Table No.1 0 have direct line of sight to the existing quarry. The dwelling on Lot 3 DP 588125 (1566 Wyrallah Rd) that has direct line of sight to the existing and proposed quarry is to the northwest and approximately 880m from the quarry. The nature of the resource and the location and three sided shape of the quarry results in much of the noise from the operation being shielded from most dwellings in the locality. Machinery working the quarry is required to meet the manufacturer's specifications with respect to their muffler systems, thus reducing the incidence of uncontrolled noise from the operation of the quarry. Truck movements to and from the quarry will also be a source of noise similar to current agricultural and other truck movements. The use of the quarry, for some 180 days per year is not considered likely to significantly impact on the existing background noise in the locality. It is considered that the quarry can operate without adverse impact on residents of dwellings in the locality, provided the proposed use is undertaken in accordance with the plan of management. 71 Further, it is clear from these pages of the Statement of Environmental Effects that it was envisaged that the quarry operation would be entirely compliant with relevant noise emission requirements at the boundary with the Woolleys' property, that property being the nearest residential receiver. 72 There is certainly nothing in any of the plans that are incorporated in the development consent by condition 1 that envisages any structure, of any nature whatsoever, in the vicinity of the boundary of the quarry site with the Woolleys' residence. 73 As a consequence, I am satisfied that the need for a major noise attenuation mound, in the vicinity of the Woolleys' residence, arises solely because of the significant and fundamental errors in the original acoustic assessment undertaken for the quarry company. Nothing in the Statement of Environmental Effects or the Quarry Management Plan can, in my assessment, be regarded as either anticipating that inadequacy and providing flexibility to resolve the operational noise issues that arose as a consequence or, in the case the Quarry Management Plan, to respond to the discovery of the fundamental defects in the original acoustic assessment report. 74 Further, pages 32 and 36 of the Statement of Environmental Effects make it clear that the plantings are for screening purposes – including visual screening to a property (1566 Wyrallah Rd) not provided any screening effect by the now proposed mound. The relevant extracts are: It is proposed to plant and establish trees around the outer limit of the excavation to provide a visual buffer to the quarry. The planting will assist in establishing the final rehabilitation use as well as reduce the potential dust emissions. [Page 32] and 4.2.4 Visual issues Potential for visual impacts to the public domain and adjoining land will be minimal due to the location and shape of the quarry, the retention of perimeter walls and provision of perimeter screen landscaping and vegetation regeneration. The pit walls and shape of the existing quarry will be progressively rehabilitated as the quarry expands westward. The floor of the existing quarry will be used as access to the working area. There is no direct or clear line of sight to the quarry from the public domain. The areas proposed for landscape screening providing visual screening of the quarry from adjoining land, particularly from the dwelling on Lot 3 DP 588125 (1566 Wyrallah Rd) to the northwest. The landscape screening will comprise plantings with a variety of local native tree species (refer Table No.9) and retention of vegetation above the quarry work area. The location, proposed quarry shape, the terrain and proposed vegetation will adequately mitigate visual impact of the proposed quarry expansion. [Page 36] 75 I note, in passing apropos the quotation from page 32, that the modification might be unlikely to perform any significant dust suppression function but, as this aspect was not canvassed during the hearing, I have ignored this point. 76 It therefore follows that my assessment, both qualitative and qualitative, of the proposed modification must proceed on the basis that there is no link with or support for the modification provided by the terms of the plans and documents incorporated in the original development consent by the terms of condition 1 of that consent. How then should the modification be tested against s96(2)(a)? 77 Stein J in Vasic Pty Limited v Penrith City Council (an unreported decision variously cited as being of the 18th or 24th February 1992), when dealing with the meaning of the words substantially the same development, when considering the then s102 of the Act that: In approaching the s102 assessment exercise one should not fall into the trap of saying that the development was for a certain use, extractive industry, and as amended it will be precisely the same use and accordingly and substantially the same development. What is important is that a development, particularly extractive industry, must be assumed to include the way in which the development is to be carried out. 78 The process for consideration of proposed modification of development was described by Bignold J in the oft quoted passage from Moto Projects No. 2 Pty Limited) v North Sydney Council [1999] NSWLEC 280; (1999) 106 LGERA 298, at paras 55 and 56, as follows: 55. The requisite factual finding obviously requires a comparison between the development, as currently approved, and the development as proposed to be modified. The result of the comparison must be a finding that the modified development is "essentially or materially"" the same as the (currently) approved development. 56. The comparative task does not merely involve a comparison of the physical features or components of the development as currently approved and modified where that comparative exercise is undertaken in some type of sterile vacuum. Rather, the comparison involves an appreciation, qualitative, as well as quantitative, of the developments being compared in their proper contexts (including the circumstances in which the development consent was granted). 79 In Moto, Bignold J makes it clear that there are two elements to the required assessment. The first requires a qualitative assessment and the second requires a quantitative one. 80 It is also clear that s 96 is a facultative, beneficial provision. It is to be construed and applied in a way that is favourable to those who are to benefit from the provision: see Moy v Warringah Council [2004] NSWCCA 77; (2004) 133 LGERA 49; (2004) 142 A Crim R 577 per Sperling J from para 80. 81 I approach my consideration of this proposed modification on these bases. Will the modified development be "substantially the same"? 82 The first matter that I need consider it is whether I have jurisdiction to approve the application pursuant to s 96(2) of the Act. This requires me to consider whether or not that which use proposed as an amendment to the original approved development will result in a modified development that is substantially the same as that which was approved in the first instance. In this context, it is clear that I am to approach my consideration of the modification process on the basis that the opportunity to modify provided by the statute is to be regarded as a beneficial and facultative process. It is also clear that my consideration must be both a qualitative and a quantitative analysis. 83 I now turn to consideration of whether or not the development that would result from approving incorporation of the mound that is now proposed (being the further amended application derived from the additional work by the acoustic, visual impact assessment and landscaping experts) would be substantially the same as the development as originally approved with the at grade vegetative buffer in the vicinity of the quarry pit. 84 I am satisfied that it cannot be so regarded on either a qualitative or quantitative basis. I have reached these conclusions for the following reasons. 85 On the basis of my analysis set out earlier out, I am satisfied, with respect to the qualitative element of the assessment I am required to undertake, the nature of the purpose of the original vegetative buffer (being a buffer for visual screening purposes), is proposed to be significantly changed in its functional purpose from merely a vegetative visual screen to the quarry pit into an earthen mound whose essential and now operationally necessary purpose is not visual screening but the necessity to provide acoustic screening to the Woolleys' residence in order to ensure compliance with the operating noise criteria set by the original conditions of consent (with the visual screening merely being an incidental outcome to the acoustic function of the mound). 86 The drivers in the design of the option C plans (derived from the work of the acoustic experts) that now comprise the amended application were not questions of visual screening but the necessity for the two acoustic experts to reach agreement on what would be the dimensions of the underlying earthen mound structure (and its location) in order to ensure acoustic compliance. 87 The question of addressing what might be the acceptability or otherwise of the visual impact (and the landscaping treatment to be applied to mitigate the visual impact) of the resultant earthen structure came only after definition of its design to satisfy its (now) fundamental acoustic compliance purpose. 88 As a consequence, I am satisfied that the functional nature, that is the qualitative elements of that which is sought to be achieved by this amendment application, is entirely divorced from and alien to that which was the qualitative intention of the original vegetative buffer. This was originally designed to be located proximate to the quarry works and thus to provide partially wrap-around visual screening for those works – not merely screening in the direction of the Woolleys' property but also screening along much of the northern down slope just outside the quarry pit proper, from a point close to the uppermost level of the quarry on its northern side and thence around the outside of the perimeter of the pit proper, as shown on the plan earlier reproduced, through to approximately the centre of the eastern facing element of the pit near the overland eastward discharge from the sediment control structure. Thus the extent of the visual screening provided by the propose mound is significantly different to that envisaged in the Statement of Environmental Effects at page 36. 89 The visual screening that is achieved by the present earthen mound will merely be visual screening from the Woolleys''s property rather than the much broader visual screening that could have been achieved had the original consent being implemented as approved. 90 Moreover, in a quantitative sense, there are quite stark and significant physical differences between that which was approved by the present consent and that which is sought to be approved by the modification application. 91 This is not, merely, a question of location (although there are significant differences that would, at least potentially in my view, warrant a finding that the qualitative variation in location and appearance of the vegetative buffer that was originally approved and the earthen mound with landscaping that is sought to be approved by the modification could not be regarded as being substantially the same as that which was originally approved). 92 However, in my view, the factor that also needs to be added to the significant variation in location and appearance for my quantitative consideration is that, in effect, any earthworks that might have been necessary to establish the vegetative buffer approved by the original consent (if any such earthworks would have been necessary at all) would have been of, essentially, a minor gardening or horticultural scale. 93 Certainly there is nothing that could be inferred from any plan or other document forming part of the original development consent as involving any significant earthworks for the vegetative buffer at all. 94 In comparison, the modification, however, endorses very significant existing earthworks and proposes major additions and alterations to them that, on my very crude calculation, involve multiple thousands of cubic metres of existing material and the addition of further multiple thousands of cubic metres of earthen materials. The emplacement of such significant volumes of material, when coupled with the differences in location and landscaping outcome to the originally approved vegetative buffer at grade, means that in a quantitative sense, I am unable to conclude that the proposed modification, if approved, would result in a development that was in any way substantially the same as that which was originally approved. 95 The necessary consequence of the foregoing is that I am satisfied to that I do not have jurisdiction to approve the proposed modification. 96 As the quarry company has failed on the preliminary point relating to the jurisdictional permissibility, it is not appropriate for me to express any view on the substantive matter merit of the proposal (for the reasons discussed by Bignold J in Manzie v Willoughby City Council (1996) NSWLEC 26 unreported). In reaching this conclusion, I wish to make it explicitly clear that I have not reached (and am not to be taken as having expressed) any conclusion, tentative or otherwise, about the merits of the design, location or impacts of the structure that is proposed by the modification application. Given that there are other proceedings on foot in the Court, it would be entirely inappropriate for me to do so. 97 Because of the existence of the second set of proceedings concerning this quarry (being an appeal concerning a fresh development application seeking expansion of the quarry's output), I have produced this decision in a shorter period of time than might otherwise have been the case. As a consequence, although I consider it is as comprehensive as would have been the position had I taken longer to prepare it, it is, perhaps, a little less polished than might otherwise be the case. However, I considered that it was in the interests of both the quarry company and the council that they have my conclusions concerning the modification application as soon as was practicable so that the outcome could be considered in the context of the proceedings that are to be heard in October next. Orders 98 The orders of the Court, therefore, are: 1. The appeal is dismissed; 2. Application to modify Development Consent No. 2005/999 is refused; 3. The exhibits, other than Exhibits 2, A and B, are returned. Tim Moore Senior Commissioner 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.