Land and Environment Court of New South Wales CITATION : Wild Group Pty Ltd v Singleton Shire Council [2010] NSWLEC 1180 APPLICANT Wild Group Pty Ltd PARTIES : RESPONDENT Singleton Shire Council FILE NUMBER(S) : 10385 of 2010 CORAM: Dixon C - Johnson AC KEY ISSUES: DEVELOPMENT CONSENT :- Quarry. Environmental Planning and Assessment Act 1979 Water Management Act 2000 Protection of the Environment Operations Act 1997 State Environmental Planning Policy No 33 - Hazardous and Offensive Development LEGISLATION CITED: State Environmental Planning Policy (Major Development) 2005 State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 Hunter Regional Environmental Plan 1989 Singleton Local Environmental Plan 1996 Singleton Development Control Plan 2009 DATES OF HEARING: 14 - 16 September 2010 DATE OF JUDGMENT: 7 December 2010 APPLICANT Mr Duncan Miller SOLICITOR Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr Paul Jayne SOLICITOR Sparke Helmore Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C Johnson AC 7 December 2010 10385 of 2010 Wild Group Pty Ltd -v- Singleton Shire Council JUDGMENT Summary 1 The applicant seeks development consent for the construction and operation of a hard rock quarry on Lot 354 DP 853217 known as 1246A Hebden Road, Hebden (the site). 2 Following the submission of amended plans and additional expert evidence, the development is now acceptable to the council; and the parties submit that the Court should make consent orders, which grant development consent, subject to the imposition of comprehensive conditions. The council advises that the objectors were notified about the proposed consent orders before the hearing and in accord with the Court's practice they have had an opportunity to read the council's proposed draft conditions for approval of the application. Copies of the proposed consent orders were available for inspection at the commencement of the hearing. 3 In determining whether to make the proposed consent orders the Court must, however, consider the relevant matters in section 79C of the Environmental Planning and Assessment Act 1979 (EPA Act) - including the public interest and any objection or submission received by council in respect of the application. Not surprisingly, this development application did cause considerable local opposition and a large folder of written objections is before the Court. Many of those local residents who objected also attended the onsite hearing and some addressed the Court orally. A principal objector to the application is the adjoining landowner, Mr Spiteri, who operates a commercial aquaculture farm next to the entry to the haul road into the quarry. Although not a party to the proceedings, Mr Spiteri was given leave to submit expert evidence prepared by Mr R McCormack, a veterinarian agricultural specialist, regarding the impact of the development on his aquaculture farm. The Court inspected his property before he gave oral evidence at the resumed hearing in Singleton. In addition to the adjoining landowner, Mr M Spiteri, and his expert Mr R McCormack, the Court heard from several other local objectors - including Mr G Clydsdale, Mr N Smith and Mr B Sproule (a representative from the Hebden Valley Action Group). The Court was also assisted in its consideration of this matter by the expert evidence of the applicant's consultants, Mr S Smith (Environmental Science), Mr G Stapleton (Traffic) and Mr A Love (Groundwater) and council's staff. 4 The Court was also assisted by the expertise of Acting Commissioner Johnson, who is an environmental scientist and understood well the complex scientific evidence of the parties' experts. 5 After hearing the objectors' evidence, at the commencement of the hearing, the Court took a view of the locality generally and, at the invitation of the objectors and the applicant, inspected the site from various vantage points to better appreciate the existing amenity enjoyed by the local residents. It also travelled to a nearby operating quarry to view the size of the trucks and crushing equipment, which it is proposed, would be used on the subject site if the application were approved. 6 Generally, the objectors to this application are concerned that the development is not compatible with their existing rural land use. In particular, they believe that heavy truck movements, dust, and noise and vibration damage and road safety issues will disturb their existing amenity. 7 Following a consideration of all of the evidence, including the objectors' concerns, and the relevant matters under section 79C of the EPA Act, we have decided to make the proposed consent orders, which approve the quarry subject to the agreed conditions. It is our opinion; based on the evidence that the agreed conditions (which were amended during the hearing) will satisfactorily address the concerns raised by the objectors - including those of the adjoining neighbour. The reasons for our decision are set out below. Background 8 The council's statement of facts and contentions filed dated 5 July, sets out the agreed facts and background to this application. 9 Located approximately 30 km north east of Singleton and 20 km south east of Muswellbrook along the Hebden Road, the site has a total area of 45.65 hectares with a battle-axe frontage of 21.25 m to Upper Hebden Road. Council's assessing officer's report in respect to the application describes the locality as "general rural grazing lands and associated dwellings". However, it is a fact that the broader locality includes three mining operations (Liddell, Mount Owen and Ravensworth), one other hard rock quarry and Liddell and Bayswater power stations. Liddell Open Cut is approximately 2 km to the SW of the Site, the existing Hebden Quarry is approximately 2 km to the NE, Mount Owen and Ravensworth operations are approximately 4.5 and 5.2 km to the SE (respectively) and Liddell Power Station is approximately 9 km to the SW. 10 This application is designated development and involves the extraction of Ignimbrite (generally a hard blue rock), which is used as a road base, construction aggregate, concrete batching aggregate in drainage works, fill and other construction uses. The application seeks approval to extract up to 2.1 million tonnes of this resource over a period of 21 years, at an approximate annual rate of 100,000 tonnes. The detail of the operation is in the environmental impact statement (Volumes 1, 2 and 3) prepared for Wild Plant Hire by GSS Environmental dated February 2009 (Ref WIL03- 001 East Quarry EIS) and supporting documentation as modified by the proposed conditions of consent. 11 Once fully developed the pit will have an extraction area of approximately 3.94 ha and together with the stockpile area will cover about 6.9 ha. In addition to the quarry the applicant also seeks approval for the following works internal to the site: change of use for the existing site office, construction of an earthen mound (noise and visual bund), sealed and unsealed access haul road, car parking area, creek crossings, weighbridge, machinery shed, stockpile area, sediment dam and erosion and sediment control works and landscaping. The conditions agreed by the parties include the requirement for further details in relation to the above works prior to the release of the construction certificate. 12 The statutory controls which apply to the development on this site include: i. Water Management Act 2000 (WM Act) ii. Protection of the Environment Operations Act 1997 (POEO Act) iii. State Environmental Planning Policy No 33 - Hazardous and Offensive Development (SEPP 33) iv. State Environmental Planning Policy (Major Development) 2005 v. State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 vi. Hunter Regional Environmental Plan 1989 (HREP) vii. Singleton Local Environmental Plan 1996 (Singleton LEP) viii. Singleton Development Control Plan 2009 (Singleton DCP) 13 Council's Acting Director of Planning and Regulations assessed the development application and recommended approval of the application. In his report to council dated 15 February 2010 he concludes: "The proposed extraction is permissible in the 1(a) (Rural Zone) with the consent of the Council. The proposal is consistent with the aims and objectives of the Singleton Local Environmental Plan 1996 and the objectives of the zone pursuant to clause 16(3). The proposal demonstrates compliance with the relevant State Environmental Planning Policies, State polices relating to environmental monitoring and impact assessment and Council's Development Control Plan. With monitoring and mitigation measures in place, the development is considered to have negligible impact in the locality. Accordingly the proposal is deemed acceptable for approval subject to appropriate conditions of consent." 14 Despite that recommendation, on 3 May 2010 the council resolved to refuse the development application for a quarry on this site for the reasons outlined in its notice of determination dated 3 May 2010. Since that refusal however, the applicant has amended its application by the submission of amended plans and supplementary expert evidence in respect of dust, ground water and noise/vibration data. Such material has been assessed by council's experts and referred to the relevant government departments for approval. Neither the council nor other government authorities have raised issue in respect of the application. The only remaining issues are those raised by the objectors which are summarised in council's statement of facts and contentions as follows: "The Applicant has not adequately taken the public interest into account under s 79C(1)(e) of the EP&A Act, in relation to the possible cumulative impacts on public safety -road use, noise, air quality, amenity etc. as raised in the community responses to notified/advertised development." 15 Based on the evidence before us, including council 's comprehensive assessment of the amended application and extensive consultation and notification process (as detailed under the heading "Actions of the Respondent Consent Authority The Development Application DA 5/2009") and after a careful consideration of the final draft conditions proposed by the parties and amended during the hearing, we are satisfied that the objectors' concerns are appropriately dealt with. Mr Spiteri's objections 16 It is clear from the evidence before the Court that Mr Spiteri is of the opinion that he has consent to operate a commercial fish farm from his property which adjoins the site. It is also his opinion that he has council approval to extend and develop that commercial venture and consent to build additional tanks and ancillary development. Council does not agree; and it appears there are ongoing discussions between the council's lawyers and Mr Spiteri about this issue. While we make no finding about this issue, in having regard as we must to the "public interest" in section 79C(e) and "the likely impacts of that development, including environmental impacts on both the natural and built environments, and social and economic impacts in the locality," in section 79C(1)(b), we note that no development consent has been tendered in this appeal for the commercial fish farm developed on the property. 17 Having said that, however, it is clear from our inspection of the site that he does operate a commercial fish farm from an area on the property. Furthermore, it is also clear on the evidence from his consultant expert that fish are highly sensitive to vibration and that this is of great concern to Mr Spiteri. In fact, it is his position that the operation of a quarry on the site will critically affect the viability of his commercial fish farm. He is also very concerned about groundwater implications for his dam. 18 The applicant does not agree with Mr McCormack's expert opinion about vibration or groundwater and submits that the conditions imposed which limit the number of blasts at the quarry, the bunding and limited truck movement on the sealed haul road will satisfactorily address Mr Spiteri's concerns. 19 GSS Environmental consultants do not accept Mr McCormack's concern that the extraction of water from the unnamed watercourse will lead to a "17 year deficit" (exhibit E). As explained in the EIS and consistent with the Farm Dam Assessment Guide (NSW Department of Land and Water Conservation 1999) the extraction of water from the unnamed watercourse on the site would only occur during dry periods when the sediment dam and void sump are dry. In any event "options available to cover for this deficit during these periods include utilising the clean water runoff captured in the existing farm dam. If additional water is still required for dust suppression it would be kept within the Maximum Harvestable Right Dam Capacity of 3.2ml." 20 The applicant's expert evidence is that the sediment dam has been designed in accordance with the NSW government guidelines and the recommended criteria for erosion and sediment control measures at mines and quarries. (Exhibit E). It is GSS's expert assessment that the sediment dam is designed consistent with the Final Blue Book Volume 2E guidelines. 21 According to the evidence, the potential impacts on Mr Spiteri's fish farm must be considered in the context of council's approvals for such a use, as identified by council in its letter to Mr Spiteri dated 4 March 2010 (Attachment A to Exhibit E). It states: "…to the operator of the fish farm, the adjacent aquaculture development lacks the following approvals: Current domestic bore onsite is not licenced for commercial (aquaculture) purposes only licensed for domestic use. This bore approval cannot be upgraded as the current water sharing plan for the Hunter Catchment embargoes any new ground water approvals for commercial activities; The dam on the unnamed watercourse, which has been stated to be used for the fish farm, is not licensed for Industrial (aquaculture) purposes, nor can it be legitimised as the current water-sharing plan for the Hunter catchment embargoes any new surface water approvals. Trading is not an option either as there is no one licensed user higher in the catchment to trade an allocation from." 22 The proposed conditions of consent include mitigation measures to control the impact on the downstream environment to meet the environmental Protection Licence from DECCW. 23 The dust from the haul road is, according to the applicant's expert, Mr Smith, unlikely to affect the fish tanks situated undercover; and is considered highly unlikely to contribute to detectable increases in turbidity in uncovered earthen ponds, which are themselves naturally turbid and occasionally require fertilization to maintain turbidity and other water quality parameters for native fish farming. Therefore, it is considered that dust from the proposed development is likely to represent a negligible hazard to fish health at Hebden Fish Farm. (P9 Exhibit E). The Heggies Pty Ltd air quality impact assessment of the development supports a finding that "due to the irregularity and short duration of emission sources during the construction phase, construction operations are not expected to impact significantly on the long term health and ecological impacts beyond the proposed plant boundaries." (P38 GSS Air Quality Impact Assessment). This fact coupled with the proposed mitigation and monitoring plan outlined in the condition 3(d), in our assessment will protect the amenity of the adjoining landowners and prevent any adverse environmental impact off site. Dust &Air Quality 24 We are satisfied that dust and air quality impacts from the quarry operations are capable of being adequately controlled, particularly through the implementation of the dust management plan. 25 The haul Road will be sealed in its lower part (where closer to neighbouring properties and the fish farm) and part of it above that will comprise compacted road base that will also minimise the generation of dust. Concerns relating to impacts of dust on the fish farm are discussed in paragraph 23 above. Noise/Vibration 26 The applicant relies on the expert evidence of its noise/vibration consultant Mr T Wellborne, who prepared a number of studies to assess the impact of the quarry on the adjoining rural use and particularly, the effect on Mr Spiteri's fish farm. It is agreed that any hard rock quarrying operation of the type proposed will necessarily produce noise from activities such as blasting, crushing and screening of the rock, loading and trucking. 27 However, the site inspection confirmed the experts' assessment that in this particular case the quarry itself is well shielded and fairly remote from sensitive receptors such as residences. The route to be followed by trucks accessing and leaving the site is, however, much closer to neighbouring houses. 28 The nearest houses are over 1 km distance from the proposed quarry operations (including the crushing, stockpiling and loading areas). They are, however, much closer to the haul road; the nearest house being on the adjacent property owned by Mr Spiteri, and only about 100m from the haul road and truck entry to the site. 29 The Upper Hebden area is one of rural character with little or no industrial or commercial activity. Consequently, background noise levels in this area are very low, even during daytime hours. No background noise measurements were carried out as part of the acoustic assessment. Instead, the minimum Rating Background Level (RBL) was adopted for receptors in the area. This is considered appropriate in this case. 30 The noise modelling predictions for the quarry and haul road operations which were part of the acoustic assessment indicate that expected noise levels are at or below the limiting criterion (Leq 35dBA) at all receptor locations and for all stages of development, except for a 1dB exceedance during the initial 6 months of quarrying. This is not considered significant and would not be deemed to be a non-compliance under the DECC's Industrial Noise Policy. 31 It is noted that a 2m high noise and visual barrier in the form of an earth bund is proposed to be built along the northern side of at least the first 450m of the internal haul road from the intersection with Hebden Road. This is considered an important feature, and is referred to in General Conditions 5.4 and 5.5. The bund should be positioned to also provide noise reduction to the sound from trucks passing over the shaker ramp on the haul road. 32 Acoustic testing of the bund and the noise reduction it provides to the nearby residences is required under General Condition 5.6 prior to the commencement of commercial operations at the quarry. 33 The magnitude and frequency of blasting is limited by the conditions. The overpressure and vibration levels produced by the maximum 6 blasting events per year are well within the relevant criteria at the receptors and are not considered likely to represent a significant impact in the area. 34 Based on the evidence, we are of the opinion that the conditions adequately address the issues raised by the residents with respect to noise/vibration generated by the development. Access, Transport and Traffic 35 The residents have raised concern about the local traffic impacts arising from the development. 36 In particular they are concerned about vehicular and pedestrian safety because of the increase in trucks on Hebden Road. 37 The applicant has submitted extensive traffic reports by Stapes Aust Pty Ltd that supports council's independent traffic count on Hebden Road. Both agree that the minor increase in traffic volumes generated by this development will have no effect on the judgment that each driver using the road needs to exercise when negotiating sharp bends, poor sight distance or blind corners all of which effect the speed at which vehicles travel. As a condition of the consent the applicant is required to upgrade Upper Hebden Road, the intersection at the entrance to the quarry and several problem sections along Hebden Road, which the evidence suggests, will improve safety to the existing road users. It is also a fact that and the New England Highway is to be upgraded and street lights provided as a requirement of the Ravensworth Glendell Mine upgrade. Both the council and the RTA have assessed the design for the road upgrade and maintenance requirements imposed by the conditions are supportive of the application subject to the proposed conditions. 38 We accept the evidence of the applicant and the council with respect to this issue and it is not a ground for refusal of this application. The conditions 39 The conditions ultimately tendered by the council and accepted by the applicant are very different to those originally proposed at the commencement of this hearing. In fact, much of the hearing was spent refining the agreed conditions to ensure the amenity of the objectors and to mitigate any environmental impacts over the life of the development. 40 Based on the evidence, we are satisfied that the comprehensive environmental management plan which implements the recommendations in the EIS required under condition 3.1 together with the site rehabilitation plan, noise and blast management plan, dust management plan, soil and water management plan, vegetation management plan and acoustic testing will satisfactorily address the objectors' concerns. 41 The existing and approved uses of land in the vicinity of the proposed development include numerous other extractive industries as was observed at the view and depicted in the aerial photograph annexed to the statement of facts and contentions in reply. 42 It is a fact that the existing approved land uses of the area range from rural residential, grazing, aquaculture to quarrying and coal mining. Having regard to the surrounding development under section 79C, the evidence supports a finding that the proposed quarry is compatible with current land usees and the existing approved developments. The development has been assessed in accordance with relevant State Environmental and Planning Policies, State and Federal laws and associated guidelines. We accept the evidence, as assessed by the council, that the development can proceed, and with the appropriate mitigation measures, have minimal impact to the surrounding environment. The evidence is that subject to the conditions this development can operate and meet the required statutory thresholds with regard to noise, vibration, air quality, surface and groundwater quality, and impact on the neighbouring aquaculture development. 43 The proposal on the evidence before us will minimise any incompatibility with surrounding land uses by utilising appropriate mitigation measures such as landscaping, visual /noise bunds and by positioning the quarry in terrain that provides natural shielding from the surrounding area. This was confirmed at the view. 44 Again, we note that council has raised issue with the lawfulness of the aquaculture development adjoining the haul road and the weight to be given to that objector's concerns needs to be seen in that context. Notwithstanding, irrespective of its legal status on the evidence, the experts are of the opinion that the adjoining land use will not be adversely affected. 45 The quarry will provide a component product, which according to the evidence, is not currently available from surrounding operations. There will, under the conditions, not be a large quantity of overburden at the site. All of the overburden material in Year 1 will be used in the construction of the noise bunds, roadways and the stockpile area. In the following years it will be blended with processed material to make a range of additional value added quarry products. There is no requirement for an economic analysis of the development other than to satisfy the matters in section 79C with respect to the social and economic impact of the proposal to be considered. 46 Based on the above we are of the opinion that following an assessment under section 79C, including the public interest, the consent orders should be made. 47 Accordingly, the Court makes the following orders: 1. The appeal is upheld. 2. Development Application no 37/2009, involving the construction and operation of a hard rock quarry on land known as Lot 354 DP 853217, known as 1246A Upper Hebden Road, Hebden be approved subject to conditions which form Annexure "A" to this judgement. 3. The exhibits are returned. ___________________ Susan Dixon Commissioner of the Court ___________________ David Johnson Commissioner of the Court Annexure "A" Conditions of Consent Wild Group Pty Ltd v Singleton Council Lot 1246 Upper Hebden Rd, Hebden. SCHEDULE 1 – GENERAL CONDITIONS DEFINITIONS The following definitions apply to Schedules 1 – 3 of this consent. "business day" means a day of the week other than a Saturday, Sunday, public holiday or bank holiday. "Commercial Product" means hard quarry rock material that is proposed to be processed (by crushing or sorting) and stored for haulage from the site. "site" means the whole of the allotment, being Lot 354 DP853217. 1. APPROVAL IN ACCORDANCE WITH THE PLANS 1.1 The development must be carried out in accordance with the: (a) development application and accompanying Environmental Impact Statement (Volumes 1, 2 and 3) prepared for Wild Plant Hire by GSS Environmental dated February 2009 (Ref WIL03-001 East Quarry EIS) (referred to in this consent as the EIS); (b) Response to submissions for Wild Plant Hire by GSS Environmental dated July 2009 (Ref WIL03-001 East Quarry EIS); (c) Assessment of Noise and Blasting Impacts prepared for GSS Environmental by Global Acoustics dated September 2009 (Ref 09119_R01.doc); (d) The Revised Site Layout Plan (Figure 2), Civil Structures (Figure 6a) and Quarry Staging Plans (Figures 6, 7, 8 9, 10, 11 and 12)(prepared by GSS Environmental and dated 14 July 2010), except as modified by the following conditions of consent. 1.2 If there is any inconsistency between these conditions of consent and any of the following: (a) the EIS; and b) the plans referred to in Conditions 3.1 and 4; then the conditions of consent shall prevail. 1.3 No works may commence on the site until the Council has approved each of those plans listed in Conditions 3.1 and 4 below. Note: No other works or activities, other than those approved by this consent notice, may be carried out without prior consent from Council. Reason: To ensure that the development is carried out in accordance with the submitted plans and accompanying documentation. 2. LAPSING OF CONSENT Consent for the development will lapse after 5 years. Note that this relates to the period within which the development must commence. Reason: To specify the period for the lapsing of consent. 3. MANAGEMENT PLANS 3.1 The Applicant must prepare and submit to the Council for approval each of the following plans prior to commencing any works on site: (a) ENVIRONMENTAL MANAGEMENT PLAN (EMP) The EMP must implement the recommendations contained within the EIS at: (i) Volume 1, Section 6.2, pages 75-76, Main Report; and (ii) Volume 3, Appendix 15 – Environmental Management Plan, Wild Quarry Muswellbrook, GSS Environmental Reason: To provide for the ecological sustainable development of the site and to mitigate any environmental impacts over the life of the development . (b) REHABILITATION PLAN (REHAB PLAN) The Rehab Plan must: (i) implement the recommendations contained within the EIS at: (A) Volume 1, Section 6.3, pages 77-78; and (B) Volume 2, Appendix 7 – Rehabilitation Management Plan, GSS Environmental. (ii) must address both progressive rehabilitation of the site as well as the proposed rehabilitation of the site following cessation of quarrying activities. Reason: To mitigate any environmental impacts over the life of the development . (c) NOISE & BLAST MANAGEMENT PLAN (NBMP) The NBMP must implement the recommendations contained within the EIS at: (i) Volume 1, Section 5.2.4, page 33, Main Report; (ii) Volume 1, Section 5.3.4, page 34, Main Report; (iii) Volume 1, Section 6.1.5 and 6.1.6, pages 72-73, Main Report; and (iv) Volume 3, Appendix 9, Section 6.1, Noise and Blasting Impact Assessment, Global Acoustics. Reason: To protect the amenity of adjoining landowners and prevent any adverse environmental impact off-site. (d) DUST MANAGEMENT PLAN (DMP) The DMP must: (i) implement the recommendations contained within the EIS at Volume 1, Section 5.4.4, page 39, Main Report; and (ii) implement a dust monitoring regime to ensure the air quality achieves the safeguards contained in Volume 3, Appendix 10 – Air Quality Impact Assessment. Reason: To protect the amenity of adjoining landowners and prevent any adverse environmental impact off-site. (e) SOIL & WATER MANAGEMENT PLAN (SWMP) The SWMP must: (i) implement the recommendations contained within the EIS at: (A) Volume 1, Section 5.6.3, pages 48-50, Main Report; (B) Volume 2, Sections 7.4.2 – 7.4.7, Appendix 6 – Surface Water Assessment, GSS Environmental. (ii) specify methods which responds to the concerns raised in Volume 3, Section 4, Appendix 14 of the EIS – Soil Survey and Land Resources Assessment, GSS Environmental, in relation to the management of topsoil on the site; (iii) specify methods to prevent pollutants from leaving the site with stormwater runoff so as to ensure that all stormwater run-off from trafficable areas subject to possible contamination is disposed of by means which do not pollute waters; (iv) specify methods to control erosion and prevent silt discharge into drainage systems and waterways (Erosion Control Methods) in accordance with the following documents: (A) Council's Development Engineering Specifications; (B) Managing Urban Stormwater – Soils and Construction : Volume 2E Mines and Quarries (DECC, June 2008); and (C) Department of Housing 'Soil and Water Management for Urban Developments'. Reason: To mitigate any environmental impacts over the life of the development . (f) VEGETATION MANAGEMENT PLAN (VMP) The VMP must be prepared in accordance with Condition 4. 3.2 Any amendments to the plans referred to in Conditions 3.1 and 4 must be submitted by the Applicant to the Council for approval. 3.3 The Applicant shall fully implement each of the plans referred to in Conditions 3.1 and 4. 3.4 The Erosion Control Measures referred to in Condition 3.1(e)(iv) in relation to the SWMP must be implemented prior to the commencement of any earthworks and must be maintained until satisfactory completion and restoration of site earthworks in accordance with the Rehabilitation Plan. 3.5 Each Management Plan referred to in Conditions 3.1 and 4 is to be prepared by a suitably qualified Environmental Consultant. 4. VEGETATION MANAGEMENT PLAN 4.1 The VMP must: (a) include all proposed landscaping for the noise and visual bund (adjacent to the site entrance) and the 10m wide riparian corridor on the southern side of the un-named 2 nd order ephemeral watercourse as shown in Figure "A": Site Vegetation Plan prepared by GSS Environmental and dated 23/08/10; (b) implement the recommendations contained in the EIS Appendix 8, Section 8; (c) utilise a selection of the species listed in Appendix "A" of these conditions; and (d) provide details for the on-going maintenance of the landscaping. 4.2 The revegetation of the riparian corridors [described in Condition 4.1(a) above] must accord with the following guidelines: (a) Guidelines for controlled activities – Riparian Corridors (DWE, Feb 2008); (b) Guidelines for controlled activities - Outlet Structures (DWE, Feb 2008); (c) Guidelines for controlled activities – Vegetation Management Plans (DWE, Feb 2008) 4.3 All plantings identified in the VMP must be completed within 12 months of the completion of the works identified in Condition 5.4 below. 4.4 Within 28 days from the 12 month anniversary of the planting completion date identified in Condition 4.3, a written audit report prepared by a suitably qualified Environmental Consultant must be provided to the Council detailing the current health of the trees and plantings, and any maintenance requirements that may need to be employed for the future survival of the plantings. Unless otherwise required by the Council, the Applicant must thereafter implement and comply with any such audit recommendations. Reason: To provide visual screening of the site operations from the adjoining landowners; to restore the watercourse(s) natural filtering ability and provide a failsafe sediment control mechanism; to preserve and foster groundwater dependent ecosystems and restore the natural biodiversity at the site; and to provide a dust control measure and control for other aeolian matter. 5. ENGINEERING AND CONSTRUCTION DETAILS 5.1 Prior to issue of a Construction Certificate for any works on-site, the Applicant must submit to Council's satisfaction, engineering and construction details of the proposed site office, earthen mounds (noise and visual bunds), sealed/unsealed access haul road, car parking area, creek crossings, weighbridge, machinery shed, stockpile area and slab, sediment dam and erosion and sediment control works and landscaping. 5.2 The designs and any works carried out are to be in accordance with the Building Code of Australia, relevant Australian Standards and Council's Engineering Specifications. 5.3 During the construction phase, the Applicant is permitted to undertake a maximum of two (2) blasts at the site in order to allow for the extraction of quarry material for use in the construction of site infrastructure [ Note : please see Condition L3.3, Schedule 2, in relation to Blasting Activities.] 5.4 The following works must be constructed and completed, to the satisfaction of the Council, before any Commercial Product can be extracted from the identified product excavation area and/or prepared for transportation from the site (excluding the material recovered for site infrastructure pursuant to Condition 5.3 above): (a) noise and visual bund of approximately 460m located adjacent to the entrance to the site from Hebden Road (" Bund 1 "); (b) temporary noise and visual bund at the mobile crushing plant at the Commercial Product excavation site (" Bund 2 "), which must remain in place until the mobile crushing plant is located in the quarry pit; (c) the stormwater catchment system, including culverts and sediment dams; (d) the internal access road to be constructed in accordance with Condition 7 (Schedule 1); (e) all permanent/temporary erosion control measures described in the SWMP to be in place; (f) the shaker-grid to be installed approximately 440 metres from the entrance of the site; (g) any other works, structures, signage that the Construction Certificate identifies to be prepared and/or carried out, and inspected and approved by the Council. 5.5 The noise/visual bunds (Bund 1) must be constructed and maintained for the duration of quarrying operations in accordance with the amended plans identified in Condition 1.1(d) of this consent. Acoustic Testing 5.6 The noise/visual bunds must be tested to ensure that the noise impacts on nearby sensitive receivers (identified in Volume 3, EIS, Appendix 9 as R1, R2 and R3) are within the specifications described in Volume 1, Main Report: Section 5.2; and Volume 3, Appendix 9, Sections 4.1 – 4.4 of the EIS. 5.7 Such testing must be undertaken and certified by a suitably qualified acoustic expert, with the use of a 33T Haulage Truck, being identical or similar to the type of vehicle proposed to be used for the haulage of material (including Commercial Product) from the quarry site, and used over the expected vehicle movement frequency period described in Volume 1, Main Report: Section 5.2; and Volume 3, Appendix 9, Sections 4.1 – 4.4 of the EIS. 5.8 The results obtained for the acoustic assessment must be provided to the Council prior to the commencement of any excavation of Commercial Product from the site. 5.9 This report must contain a statement of compliance and/or make recommendations as to any modification of the visual/bund required (including in height, length or other mitigation feature) that is required in order to ensure compliance with the specifications described in Volume 1, Main Report: Section 5.2; and Volume 3, Appendix 9, Sections 4.1 – 4.4 of the EIS. 5.10 Any further works that may arise from Condition 5.9 must be carried out prior to any excavation of Commercial Product (excluding the material recovered for site infrastructure pursuant to Condition 5.3 above) from the site. 5.11 The noise/visual bund for the "crushing plant" (Bund 2) must be constructed and inspected by the Applicant's suitably qualified acoustic expert. The acoustic expert must produce a statement of compliance and provide this to the Council before any excavation or processing of Commercial Product occurs at the site. Reason: To ensure that the development is designed and carried out in accordance with the relevant standards. 6. HEBDEN ROAD CONSTRUCTION 6.1 The Applicant must construct the following in accordance with Council's Development Engineering Specifications and set out on a set of plans, four (4) copies, which are to be submitted to and approved by Council prior to the release of the Construction Certificate for the Civil Works: (a) Construct a Type BAR intersection at the entrance to the development from Upper Hebden Road in accordance with Austroads 'Part 5 Intersections at Grade' document and Council's Development Engineering Specifications DCP. The design is to ensure the safe access to the adjoining Lot 351 DP 853217 and to avoid traffic conflict. Minimum pavement design for 5 x 10 6 ESA's with AC14 wearing course; (b) Place two-coat hot bitumen seal on all new work other than where specified; (c) Upgrade Upper Hebden Road to a 7 metre wide sealed width with 0.5m gravel shoulders and table-drains in accordance with Council's Development Engineering Specifications DCP from the entrance to the quarry to the intersection of Upper Hebden Road and Hebden Road a distance of approximately 0.88 km; (d) Construct drainage works where necessary; (e) Provide BB line marking at the crest/curve in Hebden Road approximately 1.3 km from the quarry entrance in the direction of Hebden; (f) Provide BB line marking and road pavement widening at the crest/curve located on Hebden Road approximately 2.55 km from the quarry entrance in the direction of Hebden; (g) Provide BB line marking on Hebden Road at the crest located approximately 3.25 km from the quarry entrance in the direction of Hebden; (h) Provide additional '80 km' signage and 'truck turning' signage along Hebden Road in locations to be approved by Council; (i) Construct and seal the haulage road from its intersection with Upper Hebden Road to the gravel loading bay in the quarry. The haulage road is to be a minimum of 5 metres wide with a pavement thickness for the volume of traffic for the life of the quarry; (j) Provide drainage and sediment and erosion controls to control quantity and quality of runoff; and (k) Provide a Road Safety Audit for the completed signage and road upgrade treatment and implement any additional safety requirements recommended by the Audit. 6.2 The Applicant must enter into a works agreement with Council under the Roads Act 1993 for any works within the Hebden Road reserve or any public road. Reason: To ensure that adequate and safe all-weather access is available to the development. 7. INTERNAL SITE ACCESS ROAD 7.1 The Applicant must seal the internal site access road from the entrance off Hebden Road to at least the "creek crossing" identified on Figure 2: Revised Site Layout (prepared by GSS Environmental and dated 14 July 2010), being approximately 670 metres (the sealed section). 7.2 The Applicant is to maintain the sealed section of the site access road for the life of the development. 7.3 The "seal" must be at least a 20-14 two coat seal, being an application of bitumen emulsion coat on the road surface and the initial rolling of 20mm aggregate followed by a second coat using a 14mm aggregate. 7.4 The Applicant must use stabilised road base for the remainder of the internal access road from the end of the sealed section to the stockpile area and excavation site. Reason: To prevent soil erosion, dust generation and reduce vehicle noise. 8. QUARRY OPERATIONS & AMENIETY MITIGATION 8.1 All blasting at the site must be limited to maximum instantaneous charges (MIC) of 65kg. 8.2 The Applicant must keep a log on site at all times, which the shot-firers must fill out, recording the following information: (a) Date of firing, and (b) Hole loading, delay times and sequences. This Blast Log must be kept on site and made available to the Council, upon a written request, for inspection on a time/date specified by the Council. 8.3 Hydraulic, pneumatic or electric rock hammers (or similar equipment) must not be used on the site. Reason: To ensure that the proposed development is designed, constructed and managed in a manner which has minimal impact on the amenity of the area. 9. ON-SITE SEWAGE MANAGEMENT SYSTEM 9.1 The Applicant shall submit full details to, and gain approval from Council for an amendment/installation of a suitably designed On-Site Sewage Management System to cater for the expected loads/demand of the development. 9.2 The on-site sewage management system must be completed and Council's approval to operate obtained prior to use or occupation of the proposed office building. Reason: To ensure that On-Site Sewage Management occurs in an environmentally responsible manner and that buildings are not occupied until satisfactory sanitary facilities are provided. 10. ANNUAL REPORTS – COUNCIL 10.1 The Applicant must submit annual reports to Council within 28 Business Days of 30 June of each year or as otherwise agreed to by Council in writing (" Annual Report "). 10.2 The Annual Report must include, but not be limited to, details of the following: (a) The performance of the operation; (b) The production types and quantities for the previous 12 months, which must be recorded weekly and reported as monthly results; (c) Resource markets; (d) The implementation and effectiveness of the Management Plans detailed in Conditions 3.1 and 4; (e) Results of any environmental monitoring undertaken pursuant to Conditions in Schedules 2 and 3 and any exceedences of relevant criteria, and mitigation measures on how to ensure that exceedences do not occur in future; (f) Any complaints, taken in accordance with Conditions R1, M4 and M5 of Schedule 2; (g) Production and operations undertaken during the preceding 12 months; (h) Workforce characteristics; (i) Any recommendations to amend work activities, erosion control measures (referred to in the SWMP) or the Management Plans referred to in Conditions 3.1 and 4 in order to mitigate any adverse environmental impacts; and (j) Copies of relevant approvals and licences from relevant authorities. Reason: To ensure that the development is carried out in an environmentally responsible manner with appropriate monitoring and mitigation measures in place. 11. ABORIGINAL CULTURAL HERITAGE 11.1 lf human remains are located during the project, all works must halt in the immediate area to prevent any further impacts to the find or finds. The local police, the Aboriginal community and DECCW are to be notified. 11.2 lf the remains are found to be of Aboriginal origin and the police consider the site not an investigation site for criminal activities, DECC should be notified and works are not to resume in the designated area until approval in writing is provided by DECCW. 11.3 ln the event that a criminal investigation ensues works are not to resume in the designated area until approval in writing from the Police and DECCW is provided. 11.4 lf Aboriginal cultural evidence is uncovered due to the development activities all works must halt in the immediate area to prevent any further impacts to the find(s). 11.5 A suitably qualified archaeologist and Aboriginal community representatives must be contacted to determine the significance of the find(s). 11.6 The site is to be registered in the Aboriginal Heritage Information Management System (AHIMS: managed by DECCW) and the management outcome for the site included in the information provided to the AHIMS. 11.7 lt is recommended that the Aboriginal community representatives are consulted in developing and implementing management strategies for all sites, with all information required for informed consent being given to the representatives for this purpose. 11.8 A search of the state and federal native title claims registers are to be conducted and submitted to Council prior to any works commencing. Note: Should any items of Aboriginal significance require disturbance or removal, approval under Section 87 and/or Section 90 of the National Parks and Wildlife Act 1974 will be required. It should also be noted that Section 91 of the Act requires all sites discovered to be registered with the DECCW AHIMS system. Reason: To ensure that Aboriginal cultural heritage is protected and to ensure the land is unencumbered. 12. DAMAGE CAUSED DURING CONSTRUCTION 12.1 The Applicant must repair any damage to a public road or associated structures such as kerb & gutter, drains, footpath and utility services caused as a consequence of the development works. 12.2 The work must be completed to Council's satisfaction prior to commencement of quarrying activities for the winning of Commercial Product. Reason: To ensure that any damage to Council owned or maintained infrastructure is repaired. 13. SERVICE RELOCATIONS 13.1 The registered proprietor of the land shall be responsible for all costs incurred in the necessary relocation of any services affected by the required construction works. 13.2 Council and other service authorities must be contacted for specific requirements prior to commencement of any works. Reason: To ensure that any required alterations to utility infrastructure are undertaken to acceptable standards at the developer's cost. 14. LIGHTING Any proposed external lighting of the premises must be positioned, directed and shielded so as not to interfere with traffic or detract from the amenity or project glare onto adjacent premises. Reason: To ensure that the development does not interfere with traffic safety and to protect the amenity of the neighbourhood. 15. WASTE REMOVAL 15.1 Waste must be collected for disposal at appropriate locations and removed at regular intervals and must not under any circumstances be allowed to accumulate on site. 15.2 Waste handling facilities will be provided so that: ( a) stored waste does not create offence by emission of dust, leachate, odour, unsightliness or an environment suitable for vermin; (b) putrescible waste is stored in shaded, ventilated, waterproof and vermin-proof conditions; (c) storage containers will be conveniently located both for the user and the waste collector; (d) storage containers will be readily manoeuvred from the waste storage area to the collection vehicle; (e) lids for the storage containers will prevent entry of water and be of light weight material or such construction as to be readily operated by the user. Reason: To ensure compliance with Council requirements. 16. DEGREASING & STEAM CLEANING Washing, degreasing or steam cleaning of vehicles, plant, engines etc have not been considered in this assessment and are not permitted without additional approval from Council. Reason: To prevent spillage of oil, grease etc into the environment. 17.HOURS OF OPERATION Following commencement of occupation, the premises must operate or trade only between the times stated as follows or as otherwise modified by other conditions: Monday to Friday……………………7.00am – 5.00pm Saturdays…………………………….8.00am – 1.00pm Sundays and Public Holidays……...Closed Reason: To minimise adverse impact in the locality. 18. HAZARDOUS MATERIALS Any hazardous materials stored at the site, as defined in the Protection of the Environment Operations Act 1997, must be stored with suitable bunding placed around such materials to contain any spills. Reason: To protect the environment. 19. DEVELOPMENT CONTRIBUTIONS 19.1 Development Contributions are required to be paid for the development in accordance with the Singleton Development Contributions Plan 2008 or subsequent amending instrument/s. 19.2 Contributions are subject to annual adjustment such that actual contributions will be those current at the date of payment. At the time of preparation of the determination, development contributions for the development are as follow: Facility Type Development Contribution per tonne of material hauled from the site Total Development Contributions at time of determination Rural Roads $0.25 To be determined on a yearly basis and adjusted with increase in CPI 19.3 The contribution must be paid annually to the Council no later than 14 business days after the end of each financial year quarter. The contribution to be paid on that date is the total liability of the Developer owing to the Council, for the preceding financial year quarter (as adjusted for CPI at the beginning of each financial year). 19.4 The Rate is to be increased at the commencement of each financial year in line with any positive value of the Consumer Price Index. 19.5 The annual amount of the contribution is to be based on production records to be kept by the Applicant evidencing the amount/quantity of material removed from the Development for that Financial Year. 19.6 These production records must be recorded weekly and reported as monthly results in the Annual Report (see Condition 10.2(b)). Reason: To implement the provisions of the Singleton Development Contributions Plan 2008, a copy of which is available for inspection at Council offices during normal office hours. 20. HAULAGE ROUTE 20.1 Haulage to and from the quarry must follow the route of New England Highway, Hebden Road (from the Ravensworth Intersection) and Upper Hebden Road. 20.2 Haulage over Hebden Road (via Antiene) within Muswellbrook Shire is prohibited unless legal agreement with Muswellbrook Council in regard to the use of Hebden Road is entered into. This may require upgrade of that section of Hebden Road within Muswellbrook Shire. Reason: To ensure Council road assets are suitable for the purpose. Advice Signage has not been considered in the assessment of this application. Any signage not classified as exempt development will require Council approval. The plans enclosed with your development consent are not approved for construction. A Construction Certificate must be issued prior to work proceeding. SCHEDULE 2 – GENERAL TERMS OF APPROVAL 1.0 GENERAL TERMS OF APPROVAL – DEPARTMENT OF ENVIRONMENT AND CLIMATE CHANGE The Following General Terms of Approval have been submitted by the Department of Environment and Climate Change under the Protection of the Environment Operations Act 1997 and are included as conditions on this approval:- ADMINISTRATIVE CONDITIONS A1. Information supplied to the EPA A1.1 Except as expressly provided by these general terms of approval, works and activities must be carried out in accordance with the proposal contained in the "Environmental Impact Statement East Quarry Hard Rock Project" prepared by GSS Environmental and dated February 2009. LIMIT CONDITIONS L1 Pollution of waters L.1.1 Except as may be expressly provided by a licence under the Protection of the Environment Operations Act 1997 in relation of the development, Section 120 of the Protection of the Environment Operations Act 1997 must be complied with in connection with the carrying out of the development. L2 Operational Noise limits L2.1 Noise generated at the premises must not exceed 36dBA LAeq, 15minute at all locations R01 through to R10 referred to in Proposed East Quarry, Hebden Assessment of Noise and Blasting lmpacts September 2009 (Reference 09119-R01.doc) prepared for GSS Environmental by Global Acoustics Pty Ltd. L2.2 The limit in L2.1 does not apply to activities associated with the construction of the access road, noise and visual bund for a period of up to three months from the date of the issue of consent. L2.3 Site activities generating noise must only be carried out between the hours of 7am and 5pm Monday to Friday, 8am to 1pm Saturday and at no time on Sundays or Public Holidays. L2.4 The noise limit in L2.1 applies under all meteorological conditions except for any one of the following: (a) Wind speeds greater than 3 metres/second at 10 metres above ground level; or (b) Stability category F temperature inversion conditions and wind speeds greater than 2 metres/second at 10 metres above ground level; or (c) Stability category G temperature inversion conditions. L2.5 For the purposes of condition L2.4: (a) The meteorological data to be used for determining meteorological conditions is to be recorded by a meteorological station to be established on the premises; and (b) Stability category temperature inversion conditions are to be determined by the sigma-theta method referred to in Part E4 of Appendix E to the NSW Industrial Noise Policy. L2.6 A breach of this Environment Protection Licence will still occur where noise generated from the premises in excess of the appropriate limit specified in the condition L2.1 is detected: (a) in an area at a location other than an area prescribed by conditions M1.2(b)(i) and M1.2(b)(ii); and/or (b) at a point other than the most affected point at a location. Definition: LAeq is the equivalent continuous noise level - the level of noise equivalent to the energy - average of noise levels emitted by the premises over the stated measurement period. L3 Blasting Limits Overpressure L3.1 The overpressure level from blasting operations on the premises must not: (a) Exceed 115dB (Lin Peak) for more than 5% of the total number of blasts over a period of 12 months; and (b) Exceed 120d8 (Lin Peak) at any time. Ground vibration (ppv) L3.2 Ground vibration peak particle velocity from the blasting operations at the premises must not: (a) Exceed 5mm/s for more than 5% of the total number of blasts over a period of 12 months; and (b) Exceed 10mm/s at any time. when measured at any point within 1 metre of any affected residential boundary or other noise sensitive location such as a school or hospital. Blasting Activities L3.3 Blasting activities may only occur during the following times; (a) Monday to Friday 9am to 4pm (b) No blasting on Weekends or Public Holidays (c) A maximum of one blast per week is permitted (d) A maximum of six(6) blasts per year, excluding the blasting provided for in Condition 5.3 of Schedule 1. L4 Waste L4.1 The licensee must not cause, permit or allow any waste generated outside the premises to be received at the premises for storage, treatment, processing, reprocessing or disposal or any waste generated at the premises to be disposed of at the premises, except as expressly permitted by a licence under the Protection of the Environment Operations Act 1997. L4.2 This condition only applies to the storage, treatment, processing, reprocessing or disposal of waste at the premises if it requires an environment protection licence under the Protection of the Environment Operations Act 1997. OPERATING CONDITIONS O1 Dust O1.1 The premises must be maintained in a condition that minimises or prevents the emission of dust from the premises. O1.2 Trucks entering and leaving the premises that are carrying loads of dust generating materials must have their loads covered at all times, except during loading and unloading. O2 Stormwater/sediment control – Construction Phase O2.1 Soil and water management controls must be employed to minimise soil erosion and the discharge of sediment and other pollutants to lands and/or waters during construction activities in accordance with the requirements outlined in Managing Urban Stormwater: Soils and Construction Vol 2E, Mines and Quarries 2008 (available from the DECCW). O3 Stormwater/sediment control – Operation Phase O3.1 Following the construction phase, stormwater management measures must be implemented to mitigate the impacts of stormwater run-off from and within the premises in a manner that is consistent with the Stormwater Management Plan for the catchment. Where a Stormwater Management Plan has not yet been prepared the measures should be consistent with the guidance contained in Managing Urban Stormwater: Soils and Construction, Vol 2E, Mines and Quarries 2008 (available from the DECCW). MONITORING CONDITIONS M1 Noise Monitoring M1.1 Within three months of commencement of routine quarry operations and transport of quarry product offsite a noise compliance assessment must be completed to the satisfaction of DECCW. The assessment shall be prepared by a suitably qualified and experienced acoustical practitioner and shall assess compliance with noise limits presented in L2.1. Note: DECCW may require additional noise compliance monitoring to be undertaken by the proponent should the DECCW consider the amenity of local residents is being impacted by noise from the premises. M1.2 For the purposes of determining the noise generated at the premises: (a) Class 1 or 2 noise monitoring equipment as defined by AS IEC61672.1-2004 and AS IEC61672.2-2004, or other noise monitoring equipment accepted by the EPA in writing, must be used; (b) The noise monitoring equipment used at a location must be placed in a position: (1) that is, where applicable: ( i) approximately on a location's property boundary that is closest to the premises, where any dwelling at the location is within 30 metres of the location's property boundary that is closest to the premises; or (ii) within 30 metres of a dwelling façade where any dwelling at a location is situated more than 30 metres from the location's property boundary that is closest to the premises; or (iii) within approximately 50 metres of the boundary of a National Park or a Nature Reserve to determine compliance with the LA eq (15 minute) noise limits in condition L2.1 ; and (2) that is: (i) at the most affected point at a location where there is no dwelling at the location; or (ii) at the most affected point within an area at a location prescribed by conditions M1.2 (b) (i) or M1.2 (b) (ii). M1.3 For the purposes of determining the noise generated at the premises the modification factors in Section 4 of the NSW Industrial Noise Policy must be applied, as appropriate, to the noise levels measured by the noise monitoring equipment. M2 Requirement to monitor blasts M2.1 In order to determine compliance with Condition L3: (a) All blasting activities carried out on the premises must be monitored. (b) Airblast overpressure and ground vibration levels must be measured at, or near the nearest residence, or noise sensitive location, that is likely to be most affected by the blast that is not owned by the licensee; and (c) Instrumentation used to measure the airblast overpressure and ground vibration levels must meet the requirements of Australian Standard 2187.2 of 1993. REPORTING CONDITIONS R1 Noise Monitoring Reports R1.1 For the purpose of condition M1.4 a report detailing the monitoring undertaken, the monitoring results, an assessment of compliance and any recommendations must be provided to DECCW Regional Manager - Hunter within twenty eight (28) days of the survey being completed. R1.2 The licensee must report any exceedence of the licence blasting limits to the regional office of the EPA as soon as practicable after the exceedence becomes known to the licensee or to one of the licensee's employees or agents. SPECIAL CONDITIONS S1 Special Condition S1.1 Noise levels as a result of truck traffic on the access road must been assessed by on-site measurements following the construction of the haul road and acoustic bund. The assessment must be prepared by a suitably qualified and experienced acoustical practitioner and must assess compliance with noise limits presented in L2.1. The assessment must be submitted to DECCW prior to the commencement of quarry activities. Quarry activities must not commence until noise levels consistent with the predictions in the EIS are demonstrated. MANDATORY CONDITIONS FOR ALL EPA LICENCES lf an Environment Protection Licence is granted the following mandatory conditions will apply: ADMINISTRATIVE CONDITIONS A2 Fit and Proper Person A2.1 The applicant must, in the opinion of the EPA, be a fit and proper person to hold a licence under the Protection of the Environment Operations Act 1997, having regard to the matters in s.83 of that Act. lf an Environment Protection Licence is granted the following mandatory conditions will apply: Other activities This licence applies to all activities carried on at the premises. OPERATING CONDITIONS O1 Activities must be carried out in a competent manner. O1.1 Licensed activities must be carried out in a competent manner. This includes: (a) the processing, handling, movement and storage of materials and substances used to carry out the activity; and (b) the reatment, storage, processing, reprocessing, transport and disposal of waste generated by the activity. O2 Maintenance of Plant and Equipment O2.1 All plant and equipment installed at the premises or used in connection with the licensed activity: (a) must be maintained in a proper and efficient condition; and (b) must be operated in a proper and efficient manner. MONITORING AND RECORDING CONDITIONS R1 Reporting Conditions The applicant must provide an annual return to the EPA in relation to the development as required by any licence under the protection of the Environment Operations Act 1997 in relation to the development. In the return the applicant must report on the annual monitoring undertaken (where the activity results in pollutant discharges), provide a summary of complaints relating to the development, report on compliance with licence conditions and provide a calculation of licence fees (administrative fees and, where relevant, load based fees) that are payable. If load based fees apply to the activity the applicant will be required to submit load-based fee calculation worksheets with the return. M4 Recording of pollution complaints M4.1 The licensee must keep a legible record of all complaints made to the licensee or any employee or agent of the licensee in relation to pollution arising from any activity to which this licence applies. M4.2 The record must include details of the following: (a) the date and time of the complaint; (b) the method by which the complaint was made; (c) any personal details of the complainant which were provided by the complainant or, if no such details were provided, a note to that effect; (d) the nature of the complaint; o the action taken by the licensee in relation to the complaint, including any follow-up contact with the complainant; and (e) if no action was taken by the licensee, the reasons why no action was taken. M4.3 The record of a complaint must be kept for at least 4 years after the complaint was made. M4.4 The record must be produced to any authorised officer of the EPA who asks to see them. M5 Telephone complaints line M5.1 The licensee must operate during its operating hours a telephone complaints line for the purpose of receiving any complaints from members of the public in relation to activities conducted at the premises or by the vehicle or mobile plant, unless otherwise specified in the licence. M5.2 The licensee must notify the public of the complaints line telephone number and the fact that it is a complaints line so that the impacted community knows how to make a complaint. M5.3 This condition does not apply until 3 months after this condition takes effect. REPORTING CONDITIONS Annual Return documents What documents must an Annual Return contain? The licensee must complete and supply to the DECCW an Annual Return in the approved form comprising: (a) a Statement of Compliance; and (b) a Monitoring and Complaints Summary. Before the end of each reporting period, the DECCW will provide to the licensee a copy of the form that must be completed and returned to the DECCW. Period covered by Annual Return An Annual Return must be prepared in respect of each reporting, except as provided below. Note: The term "reporting period" is defined in the dictionary at the end of this licence. Do not complete the Annual Return until after the end of the reporting period. Where this licence is transferred from the licensee to a new licensee: (a) the transferring licensee must prepare an annual return for the period commencing on the first day of the reporting period and ending on the date the application for the transfer of the licence to the new licensee is granted; and (b) the new licensee must prepare an annual return for the period commencing on the date the application for the transfer of the licence Ís granted and ending on the last day of the reporting period. Note: An application to transfer a licence must be made in the approved form for this purpose. Where a licence is surrendered by the licensee or revoked by the DECCW or Minister, the licensee must prepare an annual return in respect of the period commencing on the first day of the reporting period and ending on: (a) in relation to the surrender of a licence - the date when notice in writing of approval of the surrender is given; or (b) in relation to the revocation of the licence - the date from which notice revoking the licence operates. Deadline for Annual Return The Annual Return for the reporting period must be supplied to the DECCW by registered post not later than 60 days after the end of each reporting period or in the case of a transferring licence not later than 60 days after the date the transfer was granted (the 'due date'). Notification where actual load can not be calculated Where the licensee is unable to complete a part of the Annual Return by the due date because the licensee was unable to calculate the actual load of a pollutant due to circumstances beyond the licensee's control, the licensee must notify the DECCW in writing as soon as practicable, and in any event not later than the due date. The notification must specify: (a) the assessable pollutants for which the actual load could not be calculated; and (b) the relevant circumstances that were beyond the control of the licensee. Licensee must retain copy of Annual Return The licensee must retain a copy of the annual return supplied to the DECCW for a period of at least 4 years after the annual return was due to be supplied to the DECCW. Certifying of Statement of Compliance and signing of Monitoring and Complaints Summary Within the Annual Return, the Statement of Compliance must be certified and the Monitoring and Complaints Summary must be signed by: (a) the licence holder; or (b) by a person approved in writing by the DECCW to sign on behalf of the licence holder. A person who has been given written approval to certify a Statement of Compliance under a licence issued under the Pollution Control Act 1970 is taken to be approved for the purpose of this condition until the date of first review this licence. Notification of environmental harm The licensee or its employees must notify the DECCW of incidents causing or threatening material harm to the environment as soon as practicable after the person becomes aware of the incident in accordance with the requirements of Part 5.7 of the Act. Notifications must be made by telephoning the DECCW Pollution Line service on 131 555. The licensee must provide written details of the notification to the DECCW within 7 days of the date on which the incident occurred. Written report Where an authorised officer of the DECCW suspects on reasonable grounds that: (a) where this licence applies to premises, an event has occurred at the premises; or (b) where this licence applies to vehicles or mobile plant, an event has occurred in connection with the carrying out of the activities authorised by this licence, and the event has caused, is causing or is likely to cause material harm to the environment (whether the harm occurs on or off premises to which the licence applies), the authorised officer may request a written report of the event. The licensee must make all reasonable inquiries in relation to the event and supply the report to the DECCW within such time as may be specified in the request. The request may require a report which includes any or all of the following information: (a) thee cause, time and duration of the event; (b) the type, volume and concentration of every pollutant discharged as a result of the event; (c) the name, address and business hours telephone number of employees or agents of the licensee, or a specified class of them, who witnessed the event; and (d) the name, address and business hours telephone number of every other person (of whom the licensee is aware) who witnessed the event, unless the licensee has been unable to obtain that information after making reasonable effort; (e) action taken by the licensee in relation to the event, including any follow-up contact with any complainants; (f) details of any measure taken or proposed to be taken to prevent or mitigate against a recurrence of such an event; (g) any other relevant matters. The DECCW may make a written request for further details in relation to any of the above matters if it is not satisfied with the report provided by the licensee. The licensee must provide such further details to the DECCW within the time specified in the request. GENERAL CONDITIONS Copy of licence kept at the premises or on the vehicle or mobile plant A copy of the licence must be kept at the premises or on the vehicle or mobile plant to which the licence applies. The licence must be produced to any authorised officer of the DECCW who asks to see it. The licence must be available for inspection by any employee or agent of the licensee working at the premises or operating the vehicle or mobile plant. Reason: To ensure the requirements of the Department of Environment and Climate Change (or subsequent administering authority) are observed. 2.0 GENERAL TERMS OF APPROVAL – DEPARTMENT OF WATER AND ENERGY The Following General Terms of Approval have been submitted by the Department of Water and Energy under the Water Management Act 2000 and Water Act 1912 and are included as conditions on this approval:- (a) The Construction Certificate will not be issued over any part of the site requiring a Controlled Activity Approval until a copy of the approval has been provided to Council. (b) Prior to commencement of any controlled activity (works) on waterfront land, the consent holder must obtain a Controlled Activity Approval (CAA) under the Water Management Act 2000 from the Department of Water and Energy (or subsequent administering authority). (c) Prior to commencement of quarrying, a licence pursuant to Part 5 of the Water Act 1912 is to be obtained. (d) The consent holder must prepare or commission the preparation of the following plans or reports: (1) Road crossing designs (2) Groundwater/ Surface Water Management Plan (e) The consent holder must use a suitably qualified person to monitor the progress, completion, performance of works, rehabilitation and maintenance and report to the Department of Water and Energy (or subsequent administering authority) as required. (f) The consent holder must ensure that the construction of any bridge, causeway, culvert or crossing does not result in erosion, obstruction of flow, de-stabilisation or damage to the bed or banks of the waterfront land, other then in accordance with a CAA. Reason: To ensure the requirements of the Department of Water and Energy ( or subsequent administering authority) are observed. 3.0 MINE SUBSIDENCE BOARD 3.1 The Following General Terms of Approval have been submitted by the Mine Subsidence Board under s 15 of the Mine Subsidence Compensation Act 1961 and are included as conditions on this approval. 3.2 A single dwelling only is permitted on this property. The Board has adopted the following surface development guidelines subject to the improvements being erected on reinforced concrete footing to comply with AS2870. (a) Single or two storey timber or steel framed dwelling, clad with weatherboards or other similar materials, limited to a maximum length of 30 metres. (b) Strictly single storey brick veneer dwelling, limited to a maximum length of 30 metres. (c) The maximum height of foundation brickwork is not to exceed 1.5 metres. (d) No raft or infill slabs are permitted. (e) Structures such as sheds, stables and barns, must be constructed of lightweight materials and would be limited to a maximum length of 30 metres. (f) Other types of improvements for this property will be considered under the Board's 'Graduated Guidelines for Residential Construction'. The improvements will be subject to length restriction and may require engineering design. Details of the requirements may be obtained from the Board's technical staff. 3.3 Structural plans submitted to the Mine Subsidence Board for approval must show the location and detailing of articulation/control joints in brickwork to comply with the requirements of the Building Code of Australia and best building practice. Reason: To ensure the requirements of the Mine Subsidence Board are observed. 4.0 ANNUAL REPORTS AND OPERATIONAL SAFETY ISSUES – DEPARTMENT OF PRIMARY INDUSTRIES 4.1 The Applicant shall submit annual production data as requested by the Mineral Resources Division of the Department of Primary Industries. 4.2 All operations are to comply with the Mines Inspection Act 1901 and Mines Inspection General Rule 2000. 4.3 The Applicant is to nominate a person (or persons) as General Manager and Production Manager as required by Section 5 and 5B of the Mines Inspection Act 1901. 4.4 The General Manager must appoint trained and competent shot-firers to conduct all blasting operations. 4.5 The Applicant is required to contact the Regional Inspector of Mines for a list of guidelines and safety issues which are to be addressed for the required competencies for a Production Manager. Reason: To assist the collection of construction material data and ensure quarrying operations are conducted in accordance with the relevant legislation and guidelines. 5.0. WATER MONITORING AND BLASTING CONTROL – COUNCIL AND DEPARTMENT OF PRIMARY INDUSTRIES 5.1 Blasting is not to occur within hour before or after feeding. This matter is to be negotiated between the aquaculturalist and proponent as far as practicable. Should an agreement not be able to be determined Council shall mediate the negotiations with the advice of the Department of Primary Industries taken into consideration. 5.2 Blasting is not to occur during fish breeding activity (months of October-January, inclusive). This matter is to be negotiated between the aquaculturalist and Applicant as far as practicable. Should an agreement not be able to be determined Council shall mediate the negotiations with the advice of the Department of Primary Industries taken into consideration. Reason: To ensure that the development does not impact on the food safety aspects and potential viability of the existing aquaculture establishment. SCHEDULE 3 – WATER MONITORING 1 MONITORING LOCATION PLAN The following monitoring location points are shown on the attached plan: "Proposed Surface Water & Groundwater Monitoring Locations" prepared by GSS Environmental and dated 15/09/10. 2 GROUNDWATER MONITORING (Monitoring Bores: BHA – BHD). (a) A groundwater monitoring program must be implemented and commenced within 2 months following development consent, with the intention of developing a baseline data set initially under natural rainfall conditions. (b) Groundwater levels will be recorded monthly and sampling undertaken quarterly. (c) Sampling must be undertaken in accordance with appropriate sampling procedure as described in the Approved Methods for the Sampling and Analysis of Water Pollutants in NSW (DECCW) 2003. (d) The samples must be collected using down-hole pumping or bailing equipment following purging of the bore to remove any stagnant water. Equipment must be decontaminated between sampling events and sampling locations. (e) Samples must be analysed in accordance with the analyte list contained in Table 1. TABLE 1 – Groundwater ( 1) Pollutant/ Parameter Unit of Measure Guidelines (2 ) pH pH units 6.5 -8.0 (3) Electrical Conductivity µS/cm 125-2250 (3) Total Petroleum Hydrocarbons µg/L 7 (C6-C36) Total Dissolved Solids mg/L No guideline Total Suspended Solids (surface water only) mg/L No guideline Turbidity TBU 6 – 50 (3) (1) According to the detailed analyte description in the Environmental Impact Assessment – Appendix 11 "Groundwater Impact Assessment" by Coffey Geotechnics (Appendix B) (2) ANZECC 2000. Australian and New Zealand Guidelines for Fresh and Marine Waters - 95% Protection Level for Freshwater. (3) South-east Australia Upland rivers. (LR) – low reliability. 3 SURFACE WATER MONITORING (Monitoring Points: SW1-SW4). (a) A surface water monitoring program must be implemented and commenced within 2 months following development consent, with the intention of developing a baseline data set initially under natural rainfall conditions. (b) Flow monitoring within the un-named watercourse adjacent to the stockpile area will be monitored through the installation of a flow meter. (c) The flow-meter must record flows at points SW1 and SW2 daily and will be downloaded monthly. (d) Monitoring of rainfall at the site must be undertaken by a onsite rainfall gauge and recorded daily. (e) Water quality in the un-named watercourse adjacent to the stockpile area must be sampled and monitored monthly. (f) SW1 must be located up stream of the extraction area and SW2 located downstream of the stockpile area. (g) In addition to the above, surface water samples must also be taken in the Extraction Area (SW3) and the Stockpile Area sediment pond (SW4). (h) The samples must be taken as grab samples and analysed in accordance with the analyte list contained in Table 2 (below). TABLE 2 – Surface Water Pollutant/ Parameter Unit of Measure Guidelines (4) pH pH units 6.5 -8.0 Electrical Conductivity µS/cm 125-2250 Total Petroleum Hydrocarbons µg/L < 250 µg/L (C6-C36) (or visual sheen) (5) Total Dissolved Solids mg/L No guideline (6) Total Suspended Solids mg/L < 50 mg/L (6) Turbidity TBU 6 – 50 (6) Total Nitrogen (TN) µg N/L < 1000 µg/L (6) Copper µg/L < 1.4 µg/L (7) Lead µg/L < 3.4 µg/L (7) (4) Guidelines based on baseline water analysis results for the area and taking into account ANZECC 2000 (Australian and New Zealand Guidelines for Fresh and Marine Waters) - 95% triggers (freshwater systems) were appropriate (i.e. when not exceeded by baselines) adjusted for hardness of water. (5) If a visual sheen is detected, then further investigations must be carried out. (6) The relative percentage difference (RPD) between the upstream and downstream surface water samples not to exceed 50% (7) Adjusted for the hardness of the water, based on the hardness of the tested sample. 4 ACTION LEVELS AND MITIGATION (Ground & Surface Water) (a) A comparison of the data set against baseline data will be undertaken using a cumulative sum chart (CUSUM) to compare monitoring data against background data and determine if changes are resulting from factors external to normal variation. (b) The action level to be adopted is a shift of one standard deviation from the background mean in combination, where applicable, with a concentration exceeding the relevant site guidelines as listed in Table 1 and Table 2. (c) If an action level in groundwater is triggered the following will be implemented: (1) Engage a qualified environmental consultant to evaluate the significance of the change. (2) Assess surface water management and impacts surface water infiltration may have to groundwater quality. (d) If an action level in surface water samples is triggered the following will be implemented: (1) Retain surface water on site and limit off site discharge; (2) Engage a qualified environmental consultant to evaluate the significance of the change; (3) Evaluate water quality in SW3 and SW4; (4) Evaluate the need for water treatment or offsite disposal. (5) Water treatment could include the addition of flocculant to the surface water pond to assist in reducing contaminant loading in the discharge. (6) Assess discharge regimes and if these can be altered to manage water flow and quality e.g. discharge specific to periods of low or high flow. 5 REPORTING (a) The results of the groundwater monitoring program will be reported quarterly to the Council who will publish the results on the Council's website. (b) A statistical analysis of the collected data, for both ground and surface water, must be provided to the Council in the Annual Report (see Condition 10, Schedule 1). _______________________ _______________________ S Dixon D Johnson Commissioner of the Court Commissioner of the Court Appendix "A" FLORA SPECIES TABLE* Common Name Scientific Name Rasp Fern Doodia aspera Bristly Cloak Fern Cheilanthes distans Dolly Bush Cassinia aculeate Ball Everlasting Ozothamnus diosmifolius Wonga Vine Pandorea pandorana Australian Bluebell Wahlenbergia gracilis Petrorrhagia nanteuilii Kidney Weed Dichondra repens Hibbertia villosa Coffee Bush Breynia oblongifolia Desmondium varians Twining Glycine Glycine clandestina False Sarsparilla Hardenbergia violacea Variable Leaved Goodenia Goodenia heterophylla subsp. Heterophylla Sida corrugate Sida subspicata Hickory Acacia implexa Port Jackson Fig Ficus rubiginosa Spotted Gum Corymbia maculate Old Man's Beard Clematis aristata Dodonaea viscose subsp. Angustifollia Kurrajong Brachychiton populneus subsp. Populneus Native Peach Terma tomentosa var. viridis Slender Grape Cayratia clematidea Common Fring-rush Fimbristylis dichotoma Mat-rush Lomandra filiformis Scrambling Lily Geitonoplesium cymosum Flax Lily Dianella caerulea var. caerulea Wire Grass Aristida ramose Regleg Grass Bothriochloa decipiens Tall Chloris Chloris ventricosa Barbwire Grass Cymbopogon refractus Tufted Hedgehog Grass Echinopogon caespitosus var. caespitosus Blady Grass Imperata cylindrical var. major Weeping Rice Grass Microlaena stipoides Grass Tree Zanthorrhoea sp * The above species were derived from the Flora and Fauna Assessment of Harper Somers O'Sullivan, EIS Volume 3 (Appendix 8), dated July 2008 – Appendix B "Flora Species List" (pages B-2, B-3 and B-4) - as species forming part of the endemic/remnant "Barrington Footslopes Dry Spotted Gum Forest". 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