Land and Environment Court of New South Wales CITATION : CEAL Limited v Minister for Planning & Ors [2007] NSWLEC 302 APPLICANT CEAL Limited FIRST RESPONDENT Minister for Planning PARTIES : SECOND RESPONDENT Goulburn Mulwaree Council THIRD RESPONDENT Gregory Douglas Gibbons FILE NUMBER(S) : 10245 of 2006 CORAM: Jagot J - Watts C KEY ISSUES: Appeal :- designated development - State significant development - quarry - road upgrading - insufficient information to assess impacts of road upgrading - impacts on zoned village - amenity - appeal dismissed Environmental Planning and Assessment Act 1979 Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 Land and Environment Court Act 1979 LEGISLATION CITED: Roads Act 1993 Mulwaree Local Environmental Plan 1995 Environmental Planning and Assessment Model Provisions 1980 Environmental Planning and Assessment Regulation 2000 BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 ; Goldberg v Waverley Council [2007] NSWLEC 259; New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 ; CASES CITED: Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687; Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Ors (1980) 145 CLR 485; Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329; Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10; Weal v Bathurst City Council (2000) 111 LGERA 181 DATES OF HEARING: 3/5/07, 4/5/07, 7/5/07, 8/5/07, 9/5/07, 14/5/07, 15/5/07, 16/5/07 DATE OF JUDGMENT: 19 June 2007 APPLICANT Mr C McEwen SC with Mr A Pickles SOLICITORS Bowen & Gerathy FIRST RESPONDENT Ms S Duggan SOLICITORS Department of Planning LEGAL REPRESENTATIVES: SECOND RESPONDENT Mr A Galasso SC SOLICITORS Minter Ellison THIRD RESPONDENT N/A SOLICITORS Clayton Utz JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Jagot J 19 June 2007 10245 of 2006 CEAL LIMITED Applicant MINISTER FOR PLANNING First Respondent GOULBURN MULWAREE COUNCIL Second Respondent GREGORY DOUGLAS GIBBONS Third Respondent JUDGMENT Jagot J: A. The appeal 1 This appeal concerns whether development consent should be granted to a proposed sand and hard rock quarry. 2 On 2 August 2005 the Minister for Infrastructure and Planning determined development application (DA-10-1-2005), proposing the establishment of a sand and hard rock quarry at Ardmore Park, 5152 Oallen Ford Road via Bungonia (lot 124 in deposited plan 1001312), by refusing development consent for three reasons as follows: (a) The predicted heavy vehicle movements associated with the proposal would result in unacceptable amenity and social impacts for residents along the proposed transport route, including Bungonia; (b) The predicted heavy vehicle movements associated with the proposal cannot be accommodated without unacceptable risk to road users given the current serviceability of the proposed transport route; and (c) The proposal as submitted is not in the public interest. 3 On 29 March 2006 the applicant, CEAL Limited trading as Multiquip Quarries, commenced this appeal against the Minister's refusal of the development application under s 97(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act). 4 In accordance with s 97(4) of the EPA Act, Goulburn Mulwaree Council and Gregory Gibbons, objectors to the development application, made application and thus were entitled to be heard as parties to the appeal. Before the hearing Mr Gibbons' concerns were resolved by agreement under which the applicant would acquire his property if consent were granted and Mr Gibbons took no part in the hearing other than to facilitate an inspection of his property. 5 The development application proposed State significant development under (now repealed) provisions of the EPA Act. The development application also proposed designated development and integrated development as prescribed by s 77A and s 91 of the EPA Act respectively. 6 In September 2006 the applicant amended the development application. The appeal was adjourned to enable the amended development application and accompanying documents (including an amended environmental impact statement) to be exhibited and notified as required by the EPA Act. The Minister exhibited and notified the amended application between 19 September and 20 October 2006. The notification documents described the amendment as involving a reduction in the number of off-site truck movements and limiting the transport hours. The Minister and the Council continued to oppose the grant of consent, filing and serving statements of issues on 23 March 2007 and 13 November 2006 respectively. 7 The hearing commenced in Bungonia on 3 May 2007 and included a comprehensive view of the proposed quarry site, the surrounding properties, the village of Bungonia and the proposed route for quarry trucks from the site, through the village of Bungonia, and thence along Jerrara Road to the Hume Highway. Commissioner Watts assisted me in the appeal. B. Planning context 8 The site is mostly cleared grazing land and has an area of about 185 hectares, of which about 76 hectares would be affected by the development. The site is 4 kilometres south of Bungonia, 25 kilometres southeast of Goulburn and about 160 kilometres south of Sydney. The site is zoned 1(a) (General Rural) under the Mulwaree Local Environmental Plan 1995 (the LEP). The areas surrounding the site are also zoned 1(a) and used for various agricultural purposes. Clause 2 of the LEP identifies its general aims and objectives. The LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions), including most of the definitions (cl 6). Under cl 9(3), except as otherwise provided, the Council must not consent to the carrying out of development on land to which the LEP applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. The objectives of the 1(a) zone are expressed as follows: The objectives of this zone are to promote the proper management and utilisation of resources by: (a) promoting, enhancing and conserving: (i) agricultural land, particularly prime crop and pasture land, in a manner which sustains its efficient and effective agricultural production potential, (ii) soil stability by controlling and locating development in accordance with soil capability, as identified by the Department of Conservation and Land Management, (iii) forests of existing and potential commercial value for timber production, (iv) valuable deposits of minerals, coal, petroleum, and extractive materials by controlling the location of development for other purposes in order to ensure the efficient extraction of those deposits, (v) trees and other vegetation in sensitive areas and in any place where the conservation of the vegetation is significant to the protection of scenic amenity or natural wildlife habitat or is likely to control or contribute to the control of land degradation, (vi) water resources and water catchment areas for use in the public interest, (vii) localities of significance for nature conservation, including localities with rare plants, wetlands, permanent watercourses and significant wildlife habitat, and (viii) places and buildings of archaeological or heritage significance, including aboriginal relics and places, (b) minimising the costs to the community of: (i) fragmented and isolated development of rural land, and (ii) providing, extending and maintaining public amenities and services, and (c) providing land for future urban development, for rural residential development and for development for other non-agricultural purposes, in accordance with the need for that development, and subject to the capability of the land and its importance in terms of the other objectives of this zone. 9 Extractive industries are permissible with consent in the 1(a) zone. 10 The site fronts Oallen Ford Road near the intersection with Lumley Road and Windellama Road. Oallen Ford Road is a two lane sealed road connecting with King Street, the primary road through the village of Bungonia. The village of Bungonia is zoned 2(v) (Village) under the LEP. King Street connects with Jerrara Road, another two lane sealed road which heads north to intersect with Marulan South Road about 50 metres from the turn-off to the Hume Highway. Jerrara Road traverses land zoned 1(a) and has a length of about 15 kilometres. The distance from the site to the intersection with the Hume Highway is about 20 kilometres. 11 The objectives of the 2(v) zone in the LEP are as follows: The objective of this zone is to promote development in existing towns and villages and to allow future development in them in a manner which is compatible with their urban function by: (a) ensuring the orderly and efficient use of land and infrastructure within each town and village, (b) improving the amenity of residential, commercial, civic and community uses within the towns and villages, and (c) conserving the buildings, landscape features and streetscape features that contribute to the character and identity of the villages. 12 The zoning table for the 2(v) zone is as follows: 2 Without development consent Nil. 3 Only with development consent Any purpose other than a purpose included in item 4. 4 Prohibited Extractive industries; industry; intensive livestock keeping establishments; junkyards; liquid fuel depots; mines; offensive or hazardous industries. 13 Clause 10 of the LEP is in the following terms: The Council may consent to an application to carry out development on land within Zone No 1 (a), 1 (b), 1 (c), 2 (v), 4 (a), 7 (a) or 7 (b) only if it has taken into consideration, if relevant, the effect of the carrying out of that development on: (a) the present use of the land for the purposes of agriculture and the potential of any land which is prime crop and pasture land for sustained agricultural production, (b) vegetation, timber production, land capability (including soil stability) and water resources (including the quality and stability of watercourses, aquatic wildlife habitat, ground water storage and riparian rights), (c) the future recovery of known or prospective areas of valuable deposits of minerals, coal, petroleum, or extractive materials, (d) the protection of localities of significance for nature conservation or of high scenic or recreational value, and places and buildings of archaeological or heritage significance, including aboriginal relics and places, (e) the cost of providing, extending and maintaining public amenities and services, including electricity, to the development, (f) future expansion of settlement in the locality, and (g) the quality and availability of water resources within the water catchment area. 14 Mulwaree Shire Council prepared a settlement strategy in November 2003. The strategy identifies Mulwaree as the rural hinterland surrounding Goulburn, strategically located in the Sydney to Canberra corridor, being bisected by the Hume Highway. The area contains six villages (Marulan, Taralga, Tarago, Lake Bathurst, Tallong, and Bungonia). The area is well known for sheep grazing and fine merino wool production, as well as some cattle grazing. The strategy identifies Bungonia as a village where it is difficult to cater for future growth. The village contains 115 lots. There are 14 dwellings in the village, with a population of 35 in the 2001 census and 91 vacant lots. The village contains a community hall, two churches and rural fire station. It does not have reticulated sewerage services or town water or the amenity of a convenience store, postal or medical facilities. The wider area around Bungonia, stretching from as far as Tallong to the edge of Marulan, accommodates 255 people. The strategy describes the regional position of Bungonia as follows: Bungonia is away from the main corridor of movement and development, around the Hume Highway. Most of the economic momentum in the future is likely to be focused on this corridor due to the Sydney-Canberra Corridor Strategy, and the level of access available. Growth in Bungonia is more likely to be focused on servicing the surrounding agricultural region and housing for people that want a tranquil rural lifestyle in a historic village. 15 Section 117 of the EPA Act enables the Minister to direct a council or public authority to exercise functions under the Act. The Minister has made a series of directions under that section, including general directions to all councils and specific directions to nominated councils. On 6 December 1994, general direction G28 – coal, other minerals, petroleum and extractive resources was notified in the NSW Government Gazette. The direction requires councils to consult with the Department of Mineral Resources when preparing local environmental plans that are likely to prohibit or restrict the mining of minerals and extractive resources. It also requires the Department to notify councils of the location of known and potential mineral resources. In April 2004, the Department notified areas containing operating mines/quarries, identified mineral resources and potential mineral resources. The notice states its purpose as assisting in better land use planning decisions to "steer development away from areas containing important mineral resources where possible so as not to sterilise them unnecessarily". The notice records that most extractive resources such as sand, gravel and hard rock aggregate are not classified as "mineral resources" administered by the Department, but the Department had an accepted role in advising at State level about those resources. After 6 December 1994, the Department identified areas for high, medium and low priority ratings for notification. All high and most medium priority areas had been notified. The April 2004 notice was triggered by the amalgamation of councils. Site 24 in the notice is Ardmore Park, an identified resource of construction sand and coarse aggregate. The notice contains a plan identifying a "buffer zone" around the site. This plan says that development could adversely affect or be affected by future quarrying/mining operations, so that any local environmental plan altering zoning which may restrict or prohibit mining or quarrying should be referred to the Department for comment. The buffer zone shown on the plan extends beyond the boundaries of Ardmore Park. On 16 July 2006, in response to correspondence from the local member, the Minister for Planning clarified that this buffer zone "has no statutory status and is simply advice that the Council should take into consideration when it is preparing its new LEP" and the Director-General would inform the Council that "the Department does not support the inclusion of the buffer zone as a separate zone or sub-zone in its new LEP". C. The development application as amended 16 The development application as originally lodged and refused consent by the Minister involved establishing a sand and hard rock quarry and transporting the extracted material by road to the Hume Highway and thence to various markets in Sydney and Canberra. The amended environmental impact statement, notified and exhibited as part of the amended development application referred to above, was revised by the "Hallam report". The Hallam report is a transport assessment prepared by Christopher Hallam and Associates Pty Ltd, traffic engineers, dated June 2006 and revised in September 2006. The Hallam report identified the revised development proposal as involving a maximum of 48 truck movements per day, being 24 loads, during the hours of 7.00am to 6.00pm Mondays to Saturdays excluding public holidays. The Hallam report included a schedule of road improvements. The road improvements recommended by Mr Hallam (as amended by his evidence during the hearing) included: - (i) widening the haul route to a 6m sealed carriageway with 1m shoulders, each shoulder being sealed to a width of 0.5m, (ii) within Bungonia village, widening the haul route to a 7m sealed carriageway with 1m shoulders, each shoulder being sealed to a width of 0.5m, (iii) widening three culverts at certain identified locations along the haul route to a total barrier to barrier width of 8m, (iv) widening three bridges at certain identified locations along the haul route to a total barrier to barrier width of 8m and one bridge to a total barrier to barrier width of 7.5m, and (v) centre and edge lining of the haul route. These recommendations related to "phase 2" of the proposed development. Phase 1 involved a maximum of 14 loads, or 28 truck movements, per day. Phase 2 involved a maximum of 24 loads, or 48 truck movements, per day. The application as amended sought consent for both phases of the development. 17 Mr Samsa, a traffic engineer retained by the Minister, agreed that improvements to the roads were required. In Mr Samsa's opinion, the applicable requirements along the entire haul route were a 7m sealed carriageway width, with 1m shoulders, each shoulder being sealed to a width of 0.5m. Mr Samsa also recommended that all bridges/culverts be upgraded to a width of 8m. 18 A route inventory submitted with the Hallam report identified the widths of the sealed carriageway and the shoulders from the Hume Highway to the entry of the site, demonstrating that the existing road widths did not satisfy either Mr Hallam's or Mr Samsa's requirements at many locations. Mr Samsa noted in his evidence that there were numerous locations along the proposed haul route that did not meet the minimum standards for road design. The existence and condition of roadside vegetation is also apparent from some of the photographs in the inventory. One of the local residents who gave evidence, Ms Evans, referred to the presence of deep gullies, watercourses and vegetation at locations along Jerrara Road. When questioned about the road widening recommended by Mr Hallam, Ms Evans observed that she assumed the gullies would need to be filled, watercourses thereby altered and vegetation removed, to which she objected. We travelled the proposed haul route from the site to the Hume Highway and observed the roadside vegetation and some of the culverts and gullies. It was apparent from this information that implementing either traffic engineer's requirements would have potential environmental impacts of the types identified by Ms Evans. The amended environmental impact statement and supplementary information lodged by the applicant did not address potential environmental impacts associated with implementing these requirements. 19 During the course of the hearing, I requested the assistance of the parties about the assessment parameters that could or should be imposed on the upgrading of the proposed haul route. By closing submissions, the following competing positions had emerged. Position of the applicant (1) The applicant contended that the development for which consent had been sought in the amended development application included the upgrading of the haul route consistent with Mr Hallam's recommendations. (2) The applicant accepted that there was insufficient information to assess the environmental consequences of implementing Mr Hallam's recommendations. (3) As all the roads were public roads and the upgrading works could be carried out within the designated public road area (albeit not within the existing sealed carriageway or formed shoulder widths at all locations), they ordinarily would not require development consent, but would be subject to assessment under Pt 5 of the EPA Act (see cl 6 of the LEP and cl 35 and item 8 to Sch 1 of the Model Provisions). The Council was the relevant roads authority for all roads involved and thus was the (or, I anticipate, a) determining authority under Pt 5 with respect to those works. However, by operation of cl 8J(6) and (7) of the Environmental Planning and Assessment Regulation 2000 (the EPA Regulation), the road upgrading was part of a development application subject to a savings regime. The savings regime required the development application to be determined as if the amendments made to the EPA Act by Schedule 1 to the Environmental Planning and Assessment Amendment (Infrastructure and Other Planning Reform) Act 2005 had not been made. Accordingly, the repealed s 76A(8) of the EPA Act applied. That section provided that: (8) If: (a) a project comprises development part of which is State significant development, all other development comprised in the project is taken to be State significant development, and (b) but for this provision, part of State significant development would be subject to Part 5, this Part applies to the exclusion of Part 5 and the development may be carried out with development consent, and (c) but for this provision, part of State significant development would be prohibited, the development may be carried out with development consent. Hence, the road upgrading required development consent under Pt 4 of the EPA Act. (4) Although the amended development application had sought development consent for the road upgrading, it had not been accompanied by the consent in writing of the owner of the road, the Council. Section 39(2) of the Land and Environment Court Act 1979 (the LEC Act) did not apply as the "person or body whose decision" was subject to the appeal within the meaning of that provision was the Minister not the Council. Accordingly, the Court could not exercise the Council's functions as the owner of the road to give owner's consent to the development application (a function which, I note, the Court could have exercised if the Council were the consent authority whose decision was subject to the appeal – see, for example, Sydney City Council v Ipoh Pty Ltd (2006) 149 LGERA 329). (5) For these reasons, the options available were to: (a) assess the proposed quarry absent any assessment of the upgrading of the haul route (other than perhaps preliminary findings resolving the engineering dispute between Mr Hallam and Mr Samsa) and to publish findings, but make no orders, about that assessment. If the findings were favourable to the quarry, adjourn the proceedings to enable the applicant to seek the owner's consent of the Council to the development application and supplement the development application by an environmental assessment of the proposed road upgrading. After these steps had been taken, determine the development application; or (b) assess the proposed quarry absent any assessment of the upgrading of the haul route (other than perhaps preliminary findings resolving the engineering dispute between Mr Hallam and Mr Samsa). If the findings were favourable to the quarry, determine that part of the development application relating to the quarry under ss 80(3), (4) and (5) of the EPA Act, subject to a deferred commencement condition requiring further development consent to be obtained to the upgrading of the haul route. If and when the applicant obtained the owner's consent of the Council to that part of the development application and supplemented the development application by an environmental assessment of the proposed road upgrading, the Court could then determine that part of the development application relating to the road upgrading. (6) If, contrary to the applicant's position, the road upgrading did not form part of the development application, then those works would be subject to Pt 5 of the EPA Act. As the Council was the relevant determining authority under Pt 5 and not the Minister, s 39(2) of the LEC Act would not be available. Accordingly, option (a) would be inappropriate. Option (b) would be appropriate. The suggested deferred commencement condition would need to be redrafted to reflect the need to obtain all necessary approvals for the carrying out of the road upgrading. (7) Imposing a deferred commencement condition requiring a further development consent and/or approval to be obtained for the road upgrading (and, if thought necessary, the use of the haul route) did not offend any obligation under s 79C(1) or the principles identified in Weal v Bathurst City Council and Anor (2000) 111 LGERA 181, as the whole of the road upgrading would be subject to a separate assessment. In particular, s 80(4) and (5) contemplated that part only of a development application may be determined in advance of another part. Position of the Minister and the Council (1) The applicant's position was untenable whether or not the road upgrading formed part of the development application. With respect to option (a), if the applicant wanted to adjourn the proceedings, it should apply to do so immediately. With respect to option (b), the Court could not discharge its function under s 79C(1) by weighing all relevant considerations one against the other without having regard to the potential environmental impacts of the road upgrading in the balance. The quarry was interdependent with the haul route and the upgrading. Sections 80(4) and (5) were mechanisms for determining a development application, available only after discharge of obligation imposed by s 79C(1). Adopting option (b) would directly contradict the approach of the majority in Weal . Accordingly, the development application must be refused consent. (2) The respondents raised as an issue the inadequacy of the existing road infrastructure to accommodate the development. The applicant, through its evidence, admitted that the road infrastructure was inadequate. The applicant had not formulated any cogent proposal to address this inadequacy. If, contrary to (1) above, the Court could grant development consent absent a material error of law then, in any event, it would not do so. The observations in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council and Ors (1980) 145 CLR 485 at 504 – 505 were apt. The applicant's options involved a severing of the proposal, the result of which was "likely to impede its proper consideration". For example, if the Court determined that the environmental impacts of all aspects of the proposal were acceptable other than the road upgrading, then that determination included accepting that 48 heavy vehicle movements per day along the haul route would be appropriate. A determining authority under Pt 5, dealing with the road upgrading, could not determine to approve the upgrading subject to some inconsistent condition (such as precluding heavy vehicle movements when the school bus was operating) even if the determining authority considered that this was appropriate. Such a condition would have no connection to the road upgrading, being a consequence of a quarry that already had consent. The applicant's suggestion in response, to defer the whole issue of the use of the haul route and not just the physical upgrading required, was no answer. The obligations under s 79C(1) clearly could not be discharged absent any consideration of the haul route. (3) Insofar as relevant to the above, the road upgrading was not part of the development application. Although Mr Hallam had recommended the road upgrading works, the development application had never been amended to include the carrying out of those works as part of the development for which consent was sought. Accordingly, the savings provisions in the EPA Regulation did not apply. The appeal does not embrace the road upgrading. The road upgrading must be the subject of a separate consent and/or approval and the applicant's option (a) is thus not available. 20 I do not consider either of the applicant's options appropriate. The haul route to the Hume Highway, its adequacy and its capacity to be upgraded absent unacceptable environmental impacts, are fundamental to the proposed quarry development. Where such a matter remains outstanding, it is unlikely that any form of preliminary assessment or deferred commencement condition will provide an appropriate resolution of a development application having regard to the obligations imposed by s 79C(1) of the EPA Act. This is borne out by the following analysis. In carrying out this analysis I have considered the circumstances and principles identified below. 21 Neither respondent specifically raised an issue in their respective statements of issues that the proposed quarry development could not be granted consent because there was insufficient information about the road upgrading, but this is not material for six reasons. First, both respondents raised the inadequacy of the proposed transport route to accommodate the development. Secondly, the question whether the road upgrade formed part of the development for which consent was sought, or was to be addressed by condition, was open to argument. Thirdly, the applicant controlled the content of its development application and was responsible for any ambiguity about the development for which consent was sought. Fourthly, the competing positions of the parties identified above are so obviously central and fundamental to the proposed development and the resolution of the appeal that they must be addressed irrespective of the issues as framed by the parties. To proceed otherwise would be inconsistent with the Court's obligation under s 39(4) of the LEC Act (in "…making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest"). In satisfying that obligation, the Court is bound by the dictates of natural justice. With that in mind, fifthly, I indicated to the parties before closing submissions that I required assistance on understanding their positions on the road upgrading having regard to the available information. In consequence, and finally, all parties had an adequate opportunity to address this matter and make such applications and submissions as they saw fit. 22 Section 79C(1) provides that in "…determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application…". This obligation has been understood as involving a process in which the consent authority is bound "to take into consideration the relevant considerations, to weigh them one against the other, and to determine what, in the light of those considerations, should be done" (BP Australia Ltd v Campbelltown City Council (1994) 83 LGERA 274 at 279. See also Weal at [80] – [81]). 23 In Weal, it was clear that the development the subject of the grant of consent would create potential noise impacts. That potential led the council to impose the deferred commencement condition, which the majority in the Court of Appeal held rendered the consent invalid. In this case, all variants of the applicant's option (b) assume that the road upgrade will not be part of the development the subject of an initial grant of consent. Accordingly, the principles in Weal do not dictate rejection of option (b), but the obligations imposed by s 79C(1) must nevertheless be discharged having regard to the particular circumstances of the proposed development. 24 Section 80(4) of the EPA Act provides that development consent may be granted for the development for which the consent is sought, for that development, except for a specified part or aspect of that development or for a specified part or aspect of that development. Section 80(5) provides that a consent authority is not required to refuse consent to any specified part or aspect of development for which development consent is not initially granted under s 80(4), but development consent may subsequently be granted for that part or aspect of the development. Those provisions do not merely allow a consent authority to grant consent to part of a development. The provisions ensure that the power of a consent authority is not exhausted by an initial determination to grant consent. In other words, if a consent authority grants consent to part of a development, the consent authority may subsequently grant a separate consent to the balance of the development absent the making of a fresh development application. This is consistent with the approach adopted by the Court and advocated by the Minister in Patrick Autocare Pty Ltd v Minister for Infrastructure, Planning and Natural Resources [2004] NSWLEC 687. 25 There is potential for tension between the obligation in s 79C(1) to take into consideration matters of relevance to the development the subject of the development application and the capacity under s 80(4) to grant a consent limited to a specified part or aspect of the development and under s 80(5) to grant consent subsequently to any part or aspect for which development consent was not initially granted. This potential is likely to be more acute where the various parts or aspects of the development are interdependent. 26 The presence of ss 80(4) and (5) and, for that matter, s 80(3) with respect to deferred commencement conditions does not dictate an outcome in any particular case. The provisions increase the capacity of a consent authority to tailor any development consent as appropriate to the circumstances. It remains a matter for the consent authority (or the Court exercising its functions on appeal) to determine the weight to be given to relevant considerations, to weigh them one against the other, and to determine what should be done in the light of those considerations. 27 The outcome in Pioneer Concrete concerned a different statutory context and different facts, as the decision in North Sydney Council v Ligon 302 Pty Ltd (1996) 185 CLR 470 confirmed. Nevertheless, the observations in Pioneer Concrete at 504 – 505 expose potential difficulties for consent authorities (or those exercising their powers) in assessing one part of a proposed development dependent upon the ultimate approval of another part, particularly where the parts of the development are operationally interdependent. 28 The decision in Goldberg v Waverley Council [2007] NSWLEC 259, delivered after the hearing concluded, is not material. Biscoe J held that s 39(2) of the LEC Act empowered the Court to exercise the functions and discretions of a council under Pt 5 of the EPA Act. He did so where the application sought consent to a subdivision under Pt 4 and an approval under s 138 of the Roads Act 1993 for construction of a road within an existing road reserve. The road works did not require development consent (triggering the operation of Pt 5 of the EPA Act). The council was both the consent authority and the roads authority and thus a determining authority under Pt 5. Hence, Biscoe J held that the functions and discretions of the person or body whose decision was the subject of the appeal (that is, the council) within the meaning of s 39(2) included the council's functions and discretions as a roads authority under the Roads Act 1993 and determining authority under Pt 5 of the EPA Act. In this case, the Minister is the consent authority, whereas the Council is the roads authority. 29 If the road upgrading is assumed to be part of the development for which consent is sought (as submitted by the applicant) then the applicant's option (a) is available. On that assumption, I do not consider option (a) appropriate to be adopted. The applicant submitted its development application in January 2005. The Minister determined the application in August 2005. The applicant commenced the appeal in March 2006. The Minister filed and served its statement of basic facts and first statement of issues in May 2006. Issue 1 concerned the inadequacy of the road infrastructure. The applicant, with the respondents' consent, obtained leave to amend the development application in August 2006 by reference to the Hallam report. I made directions, by consent, directing the applicant to file and serve an amended environmental impact statement for the purposes of public exhibition and the Minister to exhibit the amended development application in accordance with the EPA Regulation (cll 78 to 80). The Minister exhibited the amended development application, including the amended environmental impact statement, in September and October 2006. In December 2006, after the respondents had filed and served statements of issues responsive to the then amended application, and by consent, I allowed the applicant, at its request, to file and serve further information to supplement the Hallam report with respect to issues relating to intersection performance. Other directions were made after December 2006 to ensure the hearing could proceed in May 2007. The suggestion that determining the development application be deferred to enable the applicant to obtain owner's consent and an assessment of the environmental impacts of the recommendations made by its own traffic engineer was first raised in closing submissions. 30 Irrespective of the dispute between Mr Hallam and Mr Samsa about the extent of the upgrading required, it was obvious from Mr Hallam's recommendations that the upgrading works involved potential environmental impacts. The information available to assess the proposed development, including any upgrading of the roads, was within the applicant's control at all times. The applicant has had more than ample opportunity to seek owner's consent from the Council and provide information about the environmental impacts of the road upgrading recommended by Mr Hallam. Mr Hallam's report in its initial form, recommending the upgrades, was issued in June 2006. Hence, before the hearing, the applicant had at least 10 months to seek owner's consent from the Council and ensure that it placed before the Court information centrally relevant to the assessment of its own development proposal. A consequence of option (a), if preliminary findings were made in the applicant's favour, would be the adjournment of this hearing for a period likely to be measured in months not weeks. The potential for prejudice to the other parties by reason of this delay cannot be wholly rectified by consequential orders such as costs. The value of any preliminary findings about operational aspects of the quarry is also questionable, for the reasons identified with respect to option (b) below. 31 Option (b), the deferred commencement condition approach, is not affected by the question whether the upgrading of the roads and/or use of the haul route forms part of the development application. If they form part of the development application, the powers under s 80(3), (4) and (5) are available. If they do not, the power under s 80(3), but not s 80(4) and (5), is available. The applicant submitted a draft deferred commencement condition under s 80(3) to this end, which would be capable of amendment to accommodate the availability or not of the powers in ss 80(4) and (5). 32 A consent authority, and the Court exercising its functions, has a duty to determine a development application (s 80(1)), but the manner of determination (by refusal, by granting consent conditionally or unconditionally, by imposing a deferred commencement condition or conditions or by granting a total or partial consent) involves the exercise of discretion in the light of all relevant considerations. I have concluded that option (b) is unsatisfactory for six reasons, whether or not the powers in ss 80(4) and (5) are available. In reaching this conclusion I consider it appropriate to assume in the applicant's favour that all other impacts associated with the activities on the quarry site are capable of being satisfactorily regulated by appropriate conditions and that there is a demand for the types of resources the quarry would produce. My six reasons are as follows: (1) All activities proposed as part of the quarry are dependent on an adequate and appropriate haul route being provided to enable the extracted resources to be conveyed to market. (2) The evidence of Mr Hallam and Mr Samsa demonstrates that the existing condition of the proposed haul route is inadequate and inappropriate. Hence, their competing recommendations for upgrading the road infrastructure to accommodate the proposed development. Their evidence, despite the dispute about the extent of the upgrading required, is consistent with all other information available about the roads, including the extensive view. (3) The proposed upgrading, particularly along Jerrara Road, does not involve obviously minor or trivial works unlikely to generate any potentially material environmental impacts or associated controversy. The recommendations for upgrading carry a clear potential for environmental impacts associated with activities such as removal of vegetation, filling or diverting of watercourses and filling of gullies. This is so whether the upgrade is carried out in accordance with the recommendations of Mr Hallam or Mr Samsa. (4) Planning decisions, particularly for large developments, may involve different decision-makers or sequential decision-making processes, as conditions of development consent not uncommonly disclose. In this case, the operational features of the proposed quarry potentially affect the extent and nature of required road upgrading and the associated conditions. The amended development application does not enable the Court exercising the functions of the consent authority or other people with an interest in the outcome of the application to reach a reasonably informed view about the potential interaction between the relevant operational features of the quarry and potential environmental impacts associated with the upgrading of the roads. Option (b) assumes that the ultimate protection from unacceptable environmental impact is the capacity to refuse to permit the road to be upgraded, in which event the deferred commencement condition will not be satisfied, the quarry may not proceed and no harm will be done. In one sense, this is true. But it also discloses why adopting option (b) is inappropriate. The consent the applicant now seeks will determine the number of heavy vehicle movements per day consequential on the quarrying operations, the hours during which those movements may appropriately occur and if there should be any hours during which those movements might appropriately be restricted, such as when the school bus is operating. In so doing, the consent will fix the parameters for any later assessment of the road upgrading, as the road upgrading will be to accommodate the consequences of the quarry's operation. Absent the agreement of the applicant, there will be little, if any, capacity to modify the operations of the quarry to avoid or ameliorate potential impacts associated with the road upgrading even though, with the benefit of hindsight, this would be the appropriate course. (5) The applicant's response to the matters in (4) above – namely, to defer any decision about the haul route altogether – is equally, if not more, unsatisfactory. It is not clear to me how basic aspects of the operations of the quarry could be meaningfully assessed and regulated by condition absent determining the haul route and its capacity. I do not accept that issues such as rates of extraction and stockpiling of materials can or should be assessed in isolation from the capacity to move extractive materials off the site. (6) The acuteness of the difficulties identified above are not the product of a technical or procedural deficiency in the development application (such as the absence of owner's consent from the Council), any potential difficulty with the operation of Pts 4 and 5 of the EPA Act or, indeed, the limits on the Court's functions under s 39(2) of the LEC Act. They are the product of the absence of information from the applicant addressing the environmental impacts of physical works it accepts must be carried out to roads to accommodate the consequences of its development. 33 Accordingly, the existing road infrastructure is inadequate to accommodate the consequences of the operation of the proposed quarry. The roads must be upgraded to accommodate those consequences. The upgrading, whether as proposed by Mr Hallam or Mr Samsa, involves a real potential for material environmental impacts. However, the environmental impacts of the upgrading and the capacity to effectively ameliorate those impacts cannot be identified on any reasonably informed basis. There is also a real chance that the operations of the quarry, and its associated consequences, will interact with the nature and extent of the road upgrading, the conditions to which it might be subject and, in consequence, the associated environmental impacts. An assessment of the quarry under s 79C(1) as sought by the applicant, in these circumstances, runs a real risk of being incomplete or inappropriate. Accordingly, I consider that it would be inconsistent with the objects of the EPA Act (specifically the promotion and co-ordination of the orderly and economic development of land) to accede to either of the applicant's option (a) or (b). 34 There is one other matter I wish to address. The applicant submitted that the proposed development should be assessed on its merits and not refused because of any mere inadequacy in the applicant's information. Implicit in the submission was the notion that rejecting the options put forward by the applicant to enable its development to be granted consent, either immediately or ultimately, would not involve a determination of the application on its merits. I do not accept that submission. The concept of the merits of a proposed development refers to the outcome of the assessment process under s 79C(1). As s 79C(1) makes clear, the outcome of that assessment process (or the "merits") cannot exist independently of a particular development application. A particular development application is constituted by the information an applicant elects to submit. This development application lacks merit and should be refused for the reasons above. 35 Given these conclusions, it is not necessary for me to consider the other issues raised by the respondents. However, there is one issue I propose to address as I consider that it is capable of assessment and is determinative of the application irrespective of the conclusions I have reached above. The issue is the impacts of the quarry haul trucks along King Street in the village of Bungonia. D. Impacts on village of Bungonia Context for resolution of issue 36 The 2(v) zone on the zoning map designates the area of Bungonia village. The village is surrounded by land zoned 1(a). From the available zoning map extracts, the vast majority of land from the parish of Oallen in the south to the Hume Highway in the north is subject to the 1(a) zone. The western boundary of the village follows the alignment of Woodwards Creek. King Street is the main street through the village, also zoned 2(v). King Street is generally aligned north-south, connecting to Oallen Ford Road in the south and Jerrara Road in the north. Jerrara Road, as noted, connects to Marulan South Road and the Hume Highway. King Street is a sealed road about 400m long. It is subject to a 50kmh speed limit. King Street is the western most of the three north-south roads running through the village. To the west of King Street towards the southern end of the village are the local community hall and associated facilities. Towards the middle and northern end of the village is a park containing a picnic and BBQ area with some seating and a children's play area, as well as the local war memorial. Some privately owned and occupied buildings are located in between, most of which have strong historical associations with the development of the village. One is the old schoolhouse now used to house an electron microscopy business. Another is the old police station now used as a residence. The public land on which the community hall and park are located runs from King Street to the creek. The village is a small community as the settlement strategy discloses. According to the environmental impact statement, prepared in 2005, the village has a population of 37, about 30 residences and five or six other buildings (including the community hall and the churches). Five residences are said to front King Street, although at least one objection contends there are eight houses that do so. 37 The exhibition of the original application resulted in about 125 submissions, with five from public authorities and 112 characterised by the Department of Planning as involving objections. The amended development application resulted in about 65 submissions mostly objecting to the proposed development. Some people made multiple submissions. A number of the submissions about the amended development application referred to amenity impacts on the village of Bungonia. For example: (1) The Bungonia Park Trust objected to the visual, noise, fumes and dust impacts caused by heavy vehicles on users of Bungonia Park and the alienation of the park from the village by the movement of heavy vehicles. (2) The Bungonia Progress Association Inc objected to the impacts on the village, identifying those impacts as a "critical issue" and requesting that the village be by-passed. The Association's objection included a submission from the trust identifying Bungonia Park as an integral part of the village since the subdivision was drawn up in 1832, being "an essential element in local recreation, visual attractiveness, tourist facilities and landscape intactness of Bungonia village". The submission referred to various park users, including local residents, local children, the wider Bungonia community and tourists. (3) The Committee of the Bungonia Times objected to the quarry traffic, including on King Street, as it would undermine the existing pleasant country roads they travelled to deliver their community newspaper. (4) Mr and Mrs Bayliss, who live in King Street, Bungonia, objected to the "disruption of our rural lifestyle via noise, pollution, unsafe roads and decreased visual amenity" as well as the impacts on community events, including the historical society which hosts events throughout the year attended by locals and tourists. (5) Mr and Mrs Boyd from Tallong were concerned about the impact on "peace and tranquillity" of Bungonia village and its capacity, by reason of these features, to attract tourists to the area. (6) Mr and Mrs Bilton of Lookdown Road, Bungonia, considered that the community had put a lot of effort into its public spaces and that the truck movements per day were not appropriate through the "tiny historic rural village". (7) Mr or Ms Griva objected to the village becoming a quarry haul route and also objected to the proposed road widening as changing the amenity and character of the village. (8) Mr McGinity, who lives in King Street, Bungonia, referred to the park and the village as a "unity". He was concerned that using King Street as a haul route would "separate the park from the village" and destroy the peace and tranquillity of the village. (9) Mr and Mrs Moran, who run Moran Scientific from the old schoolhouse, referred to the large area of parkland and adjoining creek as a central theme to the village, attracting tourists from the Bungonia conservation area. They considered that Bungonia should be protected from heavy vehicle movements as proposed for this and other reasons (including vibration impacts on their business). (10) Mr and Mrs Papadopoulos, recent purchasers of a home in King Street, Bungonia (after the Minister refused the quarry), wished to retain their country life intact in the "beautiful and peaceful village". (11) Ms Smith of Yarralaw Road, Bungonia, was concerned about the destruction of the peaceful village atmosphere, as was Ms Westley of 8 King Street, Bungonia (the old police station now used as a residence). (12) Ms Styles, a visitor to Bungonia, considered that Bungonia village and the peace of its inhabitants must be preserved. Ms Wall, another visitor, shared similar concerns. 38 Some residents gave evidence during the hearing referring to their concerns about the impacts on Bungonia village including Mr Bayliss, Mr and Mrs McGinity, Mrs Moran, Ms Westley, Mr Wiggan and Ms Williams. Although those residents emphasised aspects of the particular concerns to them (for example, Ms Williams' evidence about vibration impacts on historical buildings, including her own home), they were also concerned about the impacts on the village generally by reason of the proposed haul route. 39 Some residents gave evidence in support of the quarry. Mr Marshall of Oallen Ford Road, who also wrote a submission, considered that there were already large vehicles using the roads and the quarry would benefit the community. He observed that no one had complained before about soil trucks coming in and out of Ardmore Park. Further, the roads in the area were poor quality whereas the quarry would produce high quality road base. In Mr Marshall's opinion, there was no progress in Bungonia and the community should work together with the quarry. Ms Strang of Sawpit Lane, Bungonia, who also wrote a submission, noted that the area needed progress. Ardmore Park had been sold with a quarry licence. Years ago, with dirt roads, there were plenty of trucks causing much more dust but no one complained. Mr Koenig expressed similar views. Based on the other evidence, I understand the references to the existing soil trucks and quarry licence for the site relate to a development consent granted by the Council permitting the extraction of soil from the site for cricket pitches two to three weeks a year involving not more than 14 heavy vehicle movements per day over a two week period. Those activities appear minor and are not material to the assessment of the present application. 40 The expert witnesses, in dealing with the issue of impacts on the village of Bungonia, had regard to the Environment Protection Authority's publication "Environmental Criteria for Road Traffic Noise" (the ECRTN). Before discussing the expert evidence, it is appropriate to identify the purpose and relevant provisions of the ECRTN. 41 The Environment Protection Authority published the ECRTN in 1999. Nothing on the face of the policy discloses that it has any particular status under any legislation. The ECRTN emerged from the State Road Traffic Noise Task Force established in 1989. The task force's final report recommended that the Environment Protection Authority finalise control guidelines and environmental criteria for road traffic noise. The ECTRN aims to institute a more comprehensive and effective approach to managing road traffic noise by, amongst other things, establishing criteria that define acceptable noise levels, establishing standard methods for measuring and assessing noise impacts and identifying all strategies that can be adopted to reduce traffic noise. The ECRTN describes itself as containing "a non-mandatory performance-based approach". The ECRTN describes its ultimate intentions as including allowing the Department of Planning and local councils to develop and set appropriate criteria, controls and uses for land affected by road traffic noise and to help integrate land use planning and road transport planning. 42 In section 2.2, the ECRTN identifies that a number of factors should be considered in setting road traffic noise levels including the mix of traffic (as people are more sensitive to new noise sources) and whether the area is rural or urban (as in different areas existing noise levels will vary substantially, as will reactions to additional noise). The ECRTN divides roads into four functional categories, the lowest of which is a local road. This section of the ECRTN specifically notes that mines and quarries may obtain access via local roads and that good planning requires acknowledging this type of road use and managing adverse impacts. One response identified for the North Coast involved identifying "principal haulage routes". 43 For land use developments with the potential to create additional traffic on local roads the relevant criterion in table 1 is an LAeq (1hr) of 55dB(A) for the daytime. The LAeq (1hr) is the highest tenth percentile A-weighted Leq during the relevant period (for the daytime, 7.00am to 10.00pm). The A-weighted Leq is designed to measure annoyance reaction to traffic noise. Section 3.5 contemplate accepting an increase in traffic noise only after all feasible and reasonable mitigation measures have been applied, as the intent is to limit any additional traffic noise impacts as far as practicable. Appendix B4 notes that the data used to formulate the criteria is based on the responses of people living in residences that have been exposed to road traffic noise for some time, but responses to newly introduced noise sources may not be predictable from these results. Changes of 1 to 2dB in noise levels for constant noise sources are not likely to be noticed. Appendix C2 provides guidance on noise impact assessments for developments increasing traffic on local roads including the investigation of ameliorative measures where the environmental criteria are exceeded. 44 Mr Gross, acoustical and mechanical engineer, was the Court appointed expert dealing with noise and vibration issues. Mr Gross prepared two reports and was questioned as part of the hearing. Mr Gross concluded that appropriate vibration limits could be achieved within the village of Bungonia. In his first report, Mr Gross calculated that the heavy vehicle movements would result in the environmental criteria being exceeded within the village, with LAeq (1hr) levels of up 57dBA at a setback of 17m on the existing chip seal and an increase higher than 2dBA. Accordingly, Mr Gross recommended investigation of alternative route or mitigation measures including bypassing the village or, as a minimum, resurfacing the road through the village with lower noise generating surfaces such as a dense grade asphaltic concrete or stone mastic asphalt surface. In his second report, Mr Gross noted that he had received from the applicant's acoustical consultant sound exposure levels for laden and unladen trucks at 17m and 35m from the centreline of King Street with associated predicted façade LAeq levels lower than the 55dBA criterion. Accordingly, Mr Gross revised his earlier report by concluding that "although maximum truck noise levels are at the low end of the range I would expect, I am satisfied noise levels can meet the criteria if the trucks used are all modern, well maintained and are limited to 50/80km/hr and drivers drive responsibly". The sound exposure levels involved a truck with a three-axle dog trailer, generating an LAmax noise level at the 35m offset of 69 to 70dBA. In other words, Mr Gross's original calculations were based on the noise generated by average trucks (showing non-compliance) whereas the later calculations (showing compliance) were based on specific measurements of particular trucks. In consequence, Mr Gross altered his recommendations noting that any bypass of Bungonia may be delayed to avoid an upfront capital cost. 45 Mr Gross agreed that it was fair to characterise his position as having changed to one where a bypass should be considered in the mid to long term if it could achieve reasonable reductions in noise levels. He acknowledged that noise levels generated by trucks could vary with human input and that the latest measurements were at the low end of the expected range. Hence, his observation that the criteria could be complied with if the trucks were modern, well maintained and responsibly driven. The latest measurements showed levels of 53 and 54bDA in Bungonia at an offset distance of 17m so there was some scope for a marginal increase without exceeding the criteria. He confirmed that the distance of 17m was measured from the centreline of the road. Trucks returning from the site would be closer than 17m to facades of residential dwellings on King Street. He had not taken into account any proposed widening of King Street. The measurements related to levels at the facades of dwellings, not outdoor areas. 46 Mr Gross confirmed that he had calculated an increase of 3 to 4 dBA in the village by reason of the development using average noise levels from cars and trucks, whereas the applicant's acoustical consultant had calculated an increase of 1 to 2dBA using the specific truck measurements. He noted that if a stone mastic asphalt surface were applied then it would probably reduce the noise levels by 2dBA. When shown an extract about reducing noise levels from the Road and Traffic Authority's Environmental Noise Management Manual, Mr Gross indicated that he was very familiar with the document, as he had helped to write it. He did not agree that, based on that document, the reduction in noise levels from a stone mastic asphalt surface would be 8dBA, due to the lower truck speeds through Bungonia. A 3dBA reduction between the chip seal surface and a stone mastic asphalt surface could be expected. 47 Mr Hallam and Mr Samsa, traffic engineers, primarily addressed the extent of road upgrading required, as referred to in section C above. It is not appropriate for me to resolve the dispute between them about this issue because, as I have said, insufficient information is available to take into account the environmental impacts of their recommendations. These experts, however, also provided information and opinions relevant to the assessment of amenity impacts on the village. 48 Based on traffic counts in February 2006, Mr Hallam identified the current average traffic flows on King Street as totalling 421 vehicles. Of that total, 24 vehicles were rigid trucks and 4 were articulated trucks. Rigid trucks, for this purpose, include all non-articulated vehicles other than cars, four-wheel drives and cars and four-wheel drives with trailers. The proposed development would introduce an additional 48 articulated trucks between the hours of 7am and 6pm. Accordingly, the average number of heavy vehicles (including all rigid trucks and articulated vehicles) would increase from 28 to 76 and the total average number of vehicles would increase from 421 to 469 by reason of the development. 49 Mr Hallam accepted that the increase in heavy vehicle movements was substantial but did not consider the increases significant in traffic engineering and environmental criteria terms. The flows would remain extremely low, with the additional truck movements representing one truck every 15 minutes. The additional movements raised no pedestrian safety concerns. For example, between 8 and 9am the counts showed one vehicle movement every 92 seconds. With the quarry trucks, this would be reduced to one movement every 84 seconds, whereas it takes about 6 seconds to walk across a 6m road. The applicant had offered to construct a footpath on one side of King Street, but this was not necessary in traffic engineering terms. The RTA's Guide to Traffic Generating Developments recommended an environmental goal for a local residential street of 200 vehicles per hour. Projected King Street peak flows would be less than 50 vehicles per hour. Mr Hallam, based on the information available, concluded that the development would not cause any unacceptable amenity impacts. With respect to alternative transport routes, Mr Hallam believed Mr Samsa had not been provided with the original environmental impact statement (although, I note, the same information is contained in the amended environmental impact statement). All three alternative road routes required substantial improvements, with the key disadvantage being their length. With the primary market now being Sydney not Canberra, Mr Hallam calculated the additional transport costs for the alternative routes, which varied from 6 to 65 km longer than the selected route, with two of the alternatives still passing through the village. Mr Hallam did not address the two options in the environmental impact statement for combined road and rail transport, one of which avoided the settlements of Windellama and Sandy Point. I note that Windellama and Sandy Point are not identified as villages in the settlement strategy. Mr Hallam also referred to the letter from the Roads and Traffic Authority about the original proposed development, although that letter appears more relevant to the issue of the road upgrading than amenity. Similarly, I consider the B-double route assessment guidelines to be relevant to road upgrading, rather than amenity. 50 Mr Samsa considered the concept of amenity broader than his expertise and preferred not to comment. He agreed with Mr Hallam about safety issues in the village, but observed that the starting point for consideration of environmental thresholds was lower in the village given the existing very low traffic levels. Mr Samsa observed that it was not clear to him from the environmental impact statement why the haul route was chosen, but agreed that he was not saying that the village should be bypassed for traffic engineering reasons. 51 Mr Chambers and Mr Darroch, town planners, gave evidence. Mr Darroch's principal report noted that the village had a quiet country town character that could not be sustained with the introduction of high levels of industrial traffic. He observed that the impacts should be considered cumulatively in terms of effects on character. He did not accept noise measurements at residential facades as the exclusive indicator of amenity impacts because much of life, activity and amenity in country villages such as Bungonia is experienced outdoors and on the street. The impacts would not be limited to residents, as the hall, churches and park attract people from the wider Bungonia community and tourists. Mr Darroch was also concerned about the visual effect of the truck movements on the village's character, as well as the frequency of these movements becoming a barrier to pedestrians, given that the truck movements were compressed over an 11 hour period. He thought the recent approval of the Marulan south and Lynwood quarries relevant, as they would transport 3 to 4 million tonnes of hard rock and sand by rail whereas the proposed development would transport 240,000 to 255,000 tonnes per year by road. Mr Darroch was not satisfied that the applicant had adequately addressed the regional resources available and the costs of their exploitation so as to warrant the grant of consent to the development, given what he characterised as its high environmental costs. 52 Mr Chambers and Mr Darroch prepared a joint statement. They agreed that the primary planning issue was the impact of traffic associated with the proposed development on the village and along the haul route. They agreed that the heavy vehicles would impact on that amenity. Mr Chambers considered the impacts acceptable, whereas Mr Darroch did not for the reasons in his principal report. Mr Chambers observed that the reduced hours of operation and transport proposed had resulted in a significant reduction in impacts. Heavy vehicle traffic is part and parcel of normal rural road activity. The noise impacts complied with the ECRTN and thus were acceptable. Outdoor activities were unlikely to be so affected that they could not be carried out and reasonably enjoyed and could be further minimised by ameliorative measures. According to the settlement strategy there were 14 houses and 91 vacant lots in Bungonia, with further significant residential growth unlikely due to servicing difficulties. Mr Darroch noted that the village had grown around a crossroads and attracted people from the broad surrounding catchment as a place to stop and socialise. He referred also to the large veranda of 1 King Street that receives afternoon sun in the winter and was used by the occupants for leisure and relaxation. 53 The parties questioned both planners. Mr Chambers considered the village area zoned 2(v) to be different from the haul route generally. He observed that amenity means different things to different people. Some people would value the peace and tranquillity to the village. Others would be concerned about the lack of facilities. Mr Chambers thought that as the principal amenity impact was noise and the development complied with the ECRTN, the impacts were satisfactory. He considered the objective criteria should be applied to assessment of noise, as this was their purpose. The Council had used those criteria in its settlement strategy (a reference, as I understand it, to page 6 of the strategy and the statement, amongst others, of "no compromise to road traffic noise criteria" in the general planning principles to manage noise). While the increase in heavy vehicles was significant in the existing context, it was confined to the day, was much reduced from that originally proposed, complied with available objective criteria and achieved a reasonably balanced outcome between amenity and exploitation of the resource. In terms of amenity, it would take about 40 seconds for a truck to pass through the village. With 4 trucks an hour, the impact would not be present for 57 minutes out of each hour. Only about half the houses in the village front King Street. King Street provides the north-south route to the highway and accommodates over 400 vehicles per day already so the impacts would not be unreasonable. The information demonstrated that the incremental increase in noise (1 to 2dBA) would not be great. 54 Mr Darroch disagreed with Mr Chambers' approach, largely for the reasons identified above. In addition, he emphasised his assessment of a strong village character, with a sense of arrival, place and community. Mr Darroch thought the development would result in a marked and negative change to the character of the village, disrupting the connection between the two halves of the village. He accepted that the roads would be used and flows would increase, but thought the character, frequency and volume of traffic had to be considered. The heavy vehicles involved in this development would be at the big end of the scale. He concluded that the amenity impacts on Bungonia village, by themselves, were sufficient to require the rejection of the amended development application. 55 Mr Cook, hydrogeologist, gave evidence to the effect that the Lynwood quarry involved porphyry used for aggregate for concrete and manufactured sand and not basalt or sand extraction. The Marulan south quarry involved granodiorite used for coarse aggregate and manufactured sand not basalt or sand extraction. 56 The amended environmental impact statement estimated that the site contains a resource of 14.57 million tonnes of basalt and 7.3 million tonnes of sand. Within the parameters of the development as proposed, about 240,000 tonnes per annum of extractive materials would be able to be conveyed to markets, mainly in Sydney (or some 7.2 million tonnes over the projected thirty year quarry life). The amended environmental impact statement considered Sydney, Canberra and other smaller markets, but Mr Hallam's recommendations about maximum truck movements were premised on the applicant's position that the transport fleet would be conveying materials to Sydney to a customer with stockpiling capacity, thereby avoiding the need for more truck movements per day. The amended environmental impact statement observed that the Penrith Lakes Scheme supplied coarse sand and aggregate to the Sydney market but was scheduled to close down by about 2010 so that alternative resources were in demand. The sand resources from the site were highly suitable for concrete manufacture. Further, the Sydney market required cost competitive sources of sand and aggregate for concrete manufacturing purposes and other hard rock quarry products for road building, repair and other activities. 57 The report to the Minister about the Lynwood quarry (granted consent on 21 December 2005) recorded that the resource contained 145 million tonnes of quarry products potentially providing a supply for 130 years. The proponent intended to establish a long-term supply of construction materials to the Sydney market to replace the supply from the Penrith Lakes Scheme. The resources produced would be a range of rock products and fine manufactured sand, with a maximum annual production of 5,000,000 tonnes per year. The proposal attracted eleven submissions, two of which were objections. The report noted that the site adjoined major transport corridors (the Hume Highway and Main Southern railway line) and the development involved a major interchange at the Hume Highway. Transport would be by rail and road, with a maximum of 1.5 million tonnes per year by road. The report also referred to the settlement strategy, which had identified the value of this hard rock resource. The Lynwood quarry is identified as a potential resource in the advice of the Department of Mineral Resources under the s 117 direction, as the proponent (Readymix) was assessing the area at that time. 58 The report to the Minister about the Marulan south quarry (granted approval under Pt 3A of the EPA Act earlier this year) recorded that the proposal involved extracting a granodiorite resource of 105 million tonnes, with annual production of 3.5 million tonnes of hard rock, aggregate and manufactured sand for use in the Sydney construction market. This would replace the supply of sand, aggregate and rock from the Penrith Lakes Scheme. All transport would be by rail. The proposal attracted twelve submissions, five of which were objections. This quarry is not identified in the advice of the Department of Mineral Resources under the s 117 direction. Discussion 59 The applicant submitted that cl 9(3) of the LEP did not require an opinion of consistency between the zone objectives of the 2(v) zone and the use of King Street as part of the haul route, as the applicant was not proposing to carry out the quarry development in the village but on the quarry site. I agree. Clause 9(3) operates on the "objectives of the zone within which the development is proposed to be carried out". Insofar as the development involved the quarry, the development was to be carried out on land zoned 1(a). The passing of trucks along public roads to reach markets would be a consequence of the proposed development, but is not itself the "development…proposed to be carried out". Insofar as the development involved the upgrading of roads within the village of Bungonia, the development was to be carried out on land zoned 2(v) triggering the application of cl 9(3). However, the fact that the road upgrade would facilitate the quarry development cannot be used to impose the 2(v) zone objectives, via cl 9(3), on the quarry or the consequential use of public roads. 60 The applicant submitted that the existence and provisions of the 2(v) zone were largely immaterial to the assessment of the appropriateness of the impacts of Bungonia. I disagree. Zone objectives have a broader function than the operation of provisions such as cl 9(3) of the LEP. Local environmental plans are intended to contain coherent schemes regulating land use planning within a defined area. Most local environmental plans use zones to identify the development permissible with and without consent and prohibited on land within the area. The impacts of development can, and often do, cross zoning boundaries. One impact of the proposed development is that Monday to Saturday between the hours of 7.00am to 6.00pm, 52 weeks of the year, excluding public holidays, an additional 48 heavy vehicles (being a truck and three axle dog trailer) will pass along King Street, Bungonia, when the quarry is fully operational. Whether or not that impact is appropriate necessarily requires consideration of the planning scheme embodied by the LEP. 61 The planning scheme embodied by the LEP is to be discerned by a realistic appreciation of its intended operation and from the instrument read as a whole. It is unrealistic to assume that the LEP contemplates that impacts from development in one zone are irrelevant or immaterial if they are experienced in another zone. It is inconsistent with the provisions of the LEP to make that assumption. The relevance of impacts of development, irrespective of zone boundaries, is evident in many provisions in the LEP. It is implicit in: (i) the aims of encouraging the proper management of resources (cl 2(a)), (ii) the 1(a) zone objectives, particularly those contained in subcl (b), and (iii) the 2(v) zone objectives, particularly in their recognition of the "urban function" of villages and promoting development in them by, amongst other things, improving their amenity, and is explicit in cl 10(f). With respect to cl 10(f), it is difficult to accept that the planning scheme embodied by the LEP expressly concerns itself with the effects of development on the expansion of future settlement yet has no concern about the effects of development on existing settlement. Proper construction of the 2(v) zone objectives also does not permit this conclusion. The objective is to promote development within existing towns and villages compatible with their urban function. Improving the amenity of the various uses with the towns and villages is one nominated strategy to achieve this objective. Development that compromises or undermines the amenity of towns and villages also compromises or undermines part of the planning scheme embodied by the LEP whether or not the development occurs on land zoned 2(v). Whether that consequence is acceptable or not depends on balancing all relevant factors contained in s 79C(1). 62 Accordingly, to adopt the applicant's approach of giving little, if any, weight to the 2(v) zone applying to the village of Bungonia would involve picking and choosing those parts of the planning scheme that suited and discarding less convenient provisions. This would be inconsistent with the function of a local environmental plan of providing a coherent planning scheme for land within an area and inconsistent with the objects of the EPA Act (ss 5, 25(1), Pt 3, 76 to 76C and 79C(1)). The impacts of the proposed development on the village of Bungonia should be assessed within the context set by the LEP as a unified scheme. 63 The applicant referred to the need to carry out the assessment under s 79C(1) of the EPA Act recognising that any vehicle, including a quarry truck, has a right to pass and repass along a public road (s 5 of the Roads Act 1993). The appeal does not raise any issue about this right. This development, in common with many others, pre-supposes the existence of the right to pass along a public road. The existence of this right does not mean that the traffic generated by a particular development, and its potential environmental impacts, are irrelevant under s 79C(1). The potential for a particular development to generate traffic along particular roads, and the environmental consequences of that potential, are relevant considerations under s 79C(1). For this development, there is an obvious potential for material impacts between the site and the Hume Highway. It was necessary for the applicant and the consent authority to consider those impacts. Once the quarry traffic reaches the Hume Highway, it is equally obvious that its presence is immaterial. If, for example, all or most of the quarry traffic were ultimately to converge on one destination (which is not the case here), then I can see no reason why the potential environmental impacts of that convergence would not also be a matter a consent authority may or must consider under s 79C(1), depending on the particular facts. The extent of the obligation under s 79C(1) to consider the likely impacts of development is dictated by the consent authority's view about the extent of the impacts. 64 The applicant submitted that nothing could prevent activities within the 1(a) zone increasing over time, leading to cumulative increased vehicle movements, including heavy vehicle movements, through the village of Bungonia, which may occur without any requirement for development consent. Accordingly, the reasonableness of the amenity expectations of those residing in or using the village had to be assessed recognising this possibility. The first proposition is unarguable, but speculative and unhelpful. Amenity may well alter over time in each and every location outside the context of decisions regulated by the EPA Act. This development, however, is regulated by the EPA Act and falls for assessment pursuant to its provisions. Section 79C(1) requires a realistic assessment of relevant considerations in the context of existing and likely future circumstances. It does not countenance an assessment by reference to speculation that amenity may decline in any event. I do not accept that there is any real likelihood of a marked increase in routine heavy vehicle traffic through Bungonia in the foreseeable future absent the proposed development. Such an inference, I note, also would be contrary to the evidence of Mr Hallam and the applicant's case for lesser road widening than recommended by Mr Samsa. 65 The applicant submitted that any extractive industry must impact on the 2(v) zone insofar as roads connect the 1(a) zone to other more distant places through villages and towns zoned 2(v). That proposition is unarguable if an extractive industry proposes to haul extractive material through villages and towns, but says little about the appropriateness of so doing. From the extracts of the zoning map available large areas of land zoned 1(a) (in which extractive industries are permissible with consent) are close to or connect with major transport routes without necessarily going through a village or town. I do not know whether these areas contain potential extractive resources other than the sites identified in the advice under the s 117 direction and the subject of the recent Ministerial consent and approval (that is, the Lynwood hard rock quarry and the Marulan south quarry). The site in this case is not close to a major transport route and, accordingly, the proposed development gives rise to issues with respect to the haulage of extractive materials. 66 Similarly, the applicant submitted that the reasonable expectations of residents of Bungonia village are affected by the fact that the village contains a road connecting land within the 1(a) zone to other locations, including the Hume Highway. The actual context of the village, in terms of location, function, zoning, and existing and likely future amenity, is relevant. The applicant submitted further that this necessarily meant that the reasonable expectations of residents of Bungonia village could be no different from those of residents along Jerrara Road in the 1(a) zone. I disagree. Again, this approach involves picking the parts of the LEP that suit the applicant and discarding the parts that do not. The village of Bungonia is zoned 2(v). People living within such a village or having recourse to it for various purposes are entitled to have different expectations about amenity from those living in the 1(a) zone, even if the reasonableness of their expectations is properly affected by the actual context of the village. Different expectations arise because of the different functions of the zones within the planning scheme embodied by the LEP and the different strategies adopted by the scheme to achieve its objectives. In particular, land zoned 2(v) is intended to perform an urban function. Land zoned 1(a) is not. The reasonableness of the expectations of people living within designated urban and rural areas is to be assessed within the context set by the planning scheme. 67 The applicant submitted that the impacts of hauling extractive materials through the village of Bungonia were acceptable because those activities would satisfy available objective criteria (specifically, the ECRTN, the vibration criteria and the Guide to Traffic Generating Developments). I accept that a consent authority should have regard and give weight to published guidelines providing objective criteria to facilitate assessment of issues arising in land use planning decisions. Nevertheless, insofar as this submission might have suggested that considering the performance of the development against the available objective criteria exhausted the assessment under s 79C(1), I do not accept it. For example, the ECRTN does not cover all types of likely impact or all aspects of amenity. Insofar as it deals with one aspect of amenity (road traffic noise), the ECRTN applies generally throughout NSW. The Council's settlement strategy refers to the environmental criteria not being compromised, but that is quite different from the notion that compliance with the ECRTN exhausts the necessary or appropriate consideration under s 79C(1). Finally, the ECRTN does not have statutory force. Contrast, for example, the statutory provisions with respect to non-discretionary development standards in s 79C(2) and the capacity to prescribe relevant considerations in s 79C(1)(a)(iv) and the associated cl 92 of the EPA Regulation. Similar considerations apply to the Guide to Traffic Generating Developments. I infer from the evidence that: - (i) this guide applies throughout NSW, (ii) the category "local residential street" does not distinguish between rural and urban streets, and (iii) the environmental goal of 200 vehicles per hour does not distinguish between types of vehicles. Accordingly, I do not accept the notion that the development is necessarily acceptable provided the consequential traffic flows remain below 200 vehicles per hour. That is part of, but does not exhaust, the relevant assessment. 68 With respect to the reasonableness of the impacts, the applicant submitted that, consistent with Mr Chambers' evidence, they would be experienced for a very short time each hour. Further, Mr Darroch's evidence about the village attracting other members of the community was overstated. When he was present it was for the purposes of meeting people in the context of the appeal. The evidence about impacts on village life, when analysed, was "extraordinarily thin", according to the applicant. The overall noise increase would be 1 to 2dBA, which the environmental impact statement said was a marginal noise level increase not noticeable by most people. The applicant was also willing to resurface King Street with a stone mastic asphalt surface, which would substantially reduce noise impacts from all traffic along King Street, by up to 8dBA according to the Road and Traffic Authority's Environmental Noise Management Manual. This was an important factor in favour of the development. Another important factor was the relatively small number of people likely to be affected. The impacts on amenity, the applicant submitted, would be within reasonable bounds. Expectations to the contrary were unreasonable in all the circumstances. Those circumstances included the objectives of the 1(a) zone, the advice under the s 117 direction identifying this resource and the information in the environmental impact statement about the value of the resource. Moreover, nothing in the LEP suggested that the current minimal truck traffic through the village is to be maintained. The Lynwood and Marulan south quarries involved extracting different materials and did not include sand (as opposed to manufacturing sand on site). The respondents' criticisms about the inadequate assessment of alternative routes in the environmental impact statement were unjustified. The substantial disadvantages of the alternative routes had been clearly disclosed. Hence, ample information was provided to warrant the selected route. Given that the selected route satisfied all objective and reasonable criteria, there was no warrant for any further consideration of alternatives that were entirely unreasonable. Accordingly, the proposed haul route involved what the applicant described as a predicable, reasonable and legitimate use of the public road network. 69 In Milne v Minister for Planning & Anor [No. 2] [2007] NSWLEC 66 I observed that the objects of the EPA Act contemplated that development would stimulate social and economic change. Hence, the mere fact of change could not indicate its appropriateness. The parameters for assessing the propriety or otherwise of change could not be "personal values or idiosyncratic perceptions", which would be the antithesis of environmental planning as contemplated by the EPA Act, specifically "the making of development control decisions in a strategic planning context established by publicly available criteria, determined by planning authorities as part of a process in which the public has had extensive opportunities to participate" (at [26] – [27]). Precisely the same principles apply where the change in question involves amenity rather than social and economic relations. The principle that unfounded fears about impacts on amenity are not material, no matter how widespread, also applies. Hence, concerns absent any rational foundation are not to be given weight, whereas the "objective, specific, concrete, observable" consequences of development are relevant. This latter principle, however, is not a warrant for unjustifiably restricting the concept of "amenity". "Amenity" has consistently been described as a wide and flexible concept, embracing such matters as the character of a place and the attributes of place which a community values as important contributors to its character. (See the discussion and authorities cited in New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303 at [53] to [64] per Lloyd J and Telstra Corp Ltd v Hornsby Shire Council (2006) 146 LGERA 10 at [190] to [208] per Preston J). The likely impacts of development (s 79C(1)(b)) include impacts on amenity understood in this sense. Once the concept of "amenity" is understood in this manner it is apparent that resolution of the debate about the nature, extent and propriety of the impacts on the village of Bungonia should be answered in the broad strategic planning context discernible from the available material. 70 The applicant relied on the objective of encouraging the efficient extraction of valuable resources as an important factor in the assessment. I accept that the broad strategic planning context discernible from the LEP, the s 117 direction and the associated advice from the Department of Mineral Resources includes seeking to encourage the efficient extraction of valuable resources. The site contains identified basalt and sand resources that, if extracted, would contribute to some extent to the availability of these resources in the Sydney construction market. The application and other available information does not disclose the current relative importance of this resource to Sydney. The environmental impact statement was prepared in 2005. It contains some information about the resource, but not sufficient to make any real assessment of the weight this factor should appropriately be given. The amendments made to the environmental impact statement in late 2006 were limited to matters consequential on the Hallam report. The consents to the Lynwood and Marulan south quarries in December 2005 and early 2007 are relevant to the claims in the environmental impact statement about the development satisfying a need for alternative sites to provide resources to the Sydney construction market given the foreshadowed cessation of supply from the Penrith Lakes Scheme. Although the Lynwood and Marulan south quarries involve different types of hard rock from the proposed development and sand manufacturing rather than sand extraction, the reports to the Minister about these quarries refer to the resources extracted from them satisfying the same need. The volume of resources available in those quarries, as well as the volume able to be extracted per annum, far exceeds the volumes involved in the present application. Comparison between the volumes suggests that the resource on the site, when considered with the capacity for its efficient extraction, is unlikely to be of major significance to the Sydney construction market. Although I accept, as I have said, that the broader strategic planning context includes seeking to encourage the efficient extraction of valuable resources and the site contains an identified resource, I do not consider the available information warrants substantial weight being placed on the development's capacity to satisfy an identified need of general importance to the Sydney construction market. 71 A similar conclusion is necessary with respect to the possible availability of alternative haul routes. The respondents criticised the information available about the overall costs and benefits of other haul routes. The applicant submitted that the criticisms were unfounded. The real difficulty, in my view, is that the information available is insufficient to allow a satisfactory assessment of the competing advantages and disadvantages. In particular, the assessment of route options in the environmental impact statement did not factor in the costs and benefits of Mr Hallam's recommendations. Mr Hallam's reports did not perform this function either. The limited information available about increased haulage costs due to increased distance is but one factor relevant to a coherent analysis of this issue. This means that the assessment of the impacts of the proposed haul route should not be approached as if that route were the only available option after a rigorous exclusion of all other options. It does not, however, directly affect the reasonableness or appropriateness of the proposed haul route. 72 The broad strategic planning context discernible from the LEP includes recognising the urban function of existing towns and villages and promoting development within those existing towns and villages compatible with their urban function. Strategies adopted by the LEP to achieve that objective include improving the amenity of the existing towns and villages. The LEP embodied this strategy knowing the location of the existing towns and villages zoned 2(v), their likely capacity for future growth, their relationship to surrounding 1(a) zones and proximity to major transport corridors. In this context, the existence of a connecting road through Bungonia village and the surrounding 1(a) zone, while relevant to the assessment, does not render the amenity of the town or village immaterial or undermine its importance to the planning scheme as a whole. I also do not accept that the small number of people living in Bungonia has this effect. 35 or 37 people live in Bungonia village. The churches, hall and park are valuable assets for the broader Bungonia community. The Bungonia area has a significant tourist attraction nearby (the conservation reserve) and the park is also an asset for those people. Mr Darroch's evidence about the village being a meeting point for a broader community than those residing there was persuasive. The hall, the churches and the park encourage the use of Bungonia village for this purpose, as does its location. The settlement strategy, with its reference to servicing the surrounding rural community, also bears out a broader interest in the Bungonia village than that of the people living there. 73 What then of the impacts on the Bungonia village? I accept Mr Gross's evidence that the vibration impacts would satisfy and the noise impacts would be capable of satisfying the relevant objective criteria, particularly with the stone mastic asphalt surface offered by the applicant, which will generally reduce all road traffic noise. Consistent with Mr Darroch's evidence, however, I do not see those facts as exhausting the relevant inquiry. The particular amenity of the village is accurately conveyed by the settlement strategy. As it is away from the main movement corridors, growth in Bungonia is likely to focus on servicing the surrounding agricultural region and housing people who want a "tranquil rural lifestyle in a historic village". 74 I am satisfied that the grant of consent to the proposed development, and consequential entrenching of King Street as part of a dedicated quarry haul route, would have serious and unacceptable impacts on the amenity of the village as a whole. These impacts are not the subject of the ECRTN or vibration criteria. They are not offset by the available information about the value of the resource or potential benefits of the development. They are not made immaterial by reason of compliance with the environmental goal of 200 vehicles per hour for local residential streets. The routine passage along King Street of 48 articulated vehicles as proposed throughout the daylight hours is likely to undermine the existing tranquil rural lifestyle in respects that are "objective, specific, concrete, observable" (to adopt the language of Lloyd J in New Century Developments at [61]). The articulated trucks to be used are far larger than the vehicles falling within the class of rigid trucks and are different altogether from car traffic. The articulated trucks will be seen and perceived for what they are – very large vehicles travelling along a dedicated haul route to the Hume Highway. King Street currently experiences very few articulated vehicles (4 per day on average according to Mr Hallam). The development will increase that number many times. The applicant's notion that the number may increase irrespective of the development, as noted, is speculative. The development, demonstrably, will substantially increase the number of articulated trucks passing along King Street when, absent the development, I do not expect that to be likely to occur. Compliance with the LAeq (1hr) and 200 vehicles per hour criteria does not alter the fact that the number and type of vehicle using King Street by reason of this development would dramatically alter the existing ambience of the village. 75 The references in the environmental impact statement to increases of 1 to 2dBA not being noticeable were in the context of operational noise. I infer that this relates to a constant noise source. Four articulated trucks traversing King Street each hour would not be a constant noise source. I anticipate that the character of this noise will be different from operational noise. The short period of time during which each passage would be perceived also does not alter the fact that, with the quarry fully operational, 4 additional articulated vehicles each and every hour of the daytime Mondays to Saturdays (excluding public holidays) will pass along King Street (increasing to six per hour for two operational hours per day). Maintaining the amenity of King Street is important to the immediate and broader functions of the village as a whole. The zoning extracts and subdivision plan of the village disclose the role of King Street connecting the residential development on the eastern side of the road with the public lands on the western side where the park is located and access to the creek is obtained. The quarry vehicles, by reason of their size, frequency and routine presence through the village, would be likely to adversely affect the relationship between the main residential area and the available community facilities. The pleasant ambience of those public places also would be dramatically altered for all but the most fleeting visitor. So too would the pleasant ambience of the outdoor areas of the properties fronting King Street, which I am satisfied makes an important contribution to the enjoyment of life of the people residing there. Becoming part of a dedicated haul route to the Hume Highway would fundamentally alter the character of the village, visually, acoustically and by reference to the less tangible qualities that contribute to that character – the quiet ambience, the pleasant pedestrian environment absent formal and defined pedestrian paths, the easy and free flowing relationship between the main area of residential development and the park, and the capacity to fully use and enjoy outdoor spaces. Compliance with the ECRTN, the 200 vehicles per hour environmental goal referred to by Mr Hallam and vibration criteria does not remove these real and direct impacts of the quarry on the village of Bungonia. 76 I am satisfied that the proposed haul route through Bungonia village would undermine important aspects of the amenity of the village and thus an important part of the planning scheme embodied in the LEP. On the available information, and assuming that all other issues are capable of being adequately resolved through conditions, the quarry would have these impacts on Bungonia village absent sufficient justification. Accordingly, the development application also should be refused consent for this reason. E. Conclusions and orders 77 For the reasons set out above the amended development application should be refused consent. I therefore make the following orders: (1) The appeal is dismissed. (2) Development application DA 10 – 1 – 2005 for the establishment of a sand and hard rock quarry on lot 24 in deposited plan 1001312, Oallen Ford Road, Bungonia, is refused. (3) The exhibits may be returned. **************************** 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.