Land and Environment Court of New South Wales CITATION : Jandra Blue Metal Quarries Pty Ltd v Rainbow Flat Quarry Environment Committee [1988] NSWLEC 30 APPLICANT Jandra Blue Metal Quarries Pty Ltd FIRST RESPONDENT PARTIES : Rainbow Flat Quarry Environment Committee SECOND RESPONDENT Greater Taree City Council FILE NUMBER(S) : 10512,; 10533 of 1985 CORAM: Cripps J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act CASES CITED: Double Bay Marina Pty. Limited v. Woollahra Municipal Council, 54 LGRA 313, DATES OF HEARING: DATE OF JUDGMENT: 11/01/1988 LEGAL REPRESENTATIVES: JUDGMENT: His Honour: This is an application made pursuant to s.102 of the Environmental Planning and Assessment Act for the modification of a development consent granted by the Court on 2 June 1986. On 2 June 1988, the Court dismissed appeals brought pursuant to s.98 of the Environmental Planning and Assessment Act against a decision of the Taree Municipal Council granting development consent to Jandra Blue Metal Quarries Pty. Limited to extract and process hard rock at Portion 73 Lot 6 DP255621 Pacific Highway, Possum Brush. The Court granted development consent subject to a number of conditions including Condition 2.29 as follows: "The rate of removal of the quarried material from the site shall not exceed 50,000 tonnes of finished product per annum; provided that in any one week the rate of removal of the quarried material from the site shall not exceed 2,000 tonnes. A weighbridge record showing the load weight of each truck shall be kept on site in respect of the yearly period and shall be available for inspection by council staff on request and, in any event, shall be submitted to Council at the end of each financial year". Section 102 of the Environmental Planning and Assessment Act relevantly provides: "(1) Upon application being made in the prescribed form by the applicant or any other person entitled to act upon the consent, a consent authority which has granted development consent under this Division may modify the consent where - (a) it is satisfied that the development to which the consent as modified relates is substantially the same development; (b) it is satisfied that no prejudice will be caused to any person who objected to the development application the subject of that consent; and (c) it has consulted with the relevant Minister or public authority in respect of a condition referred to in section 82(1) and that Minister or authority has not, within 21 days after being consulted, objected to the modification of that consent. (2) A development consent shall not be modified under this section where it relates to designated development, unless the consent authority has first given notice, as prescribed, to the persons (if any) who made submissions under section 87 in relation to the application for the consent, and the consent authority shall consider any further submissions made by any of those persons within the prescribed period. (3) Where the development consent referred to in subsection (1) is a consent referred to in section 93(4) or 101(7)(b), the Court or the Minister, as the case may be, shall be deemed for the purposes of this section to be the consent authority. (4) Modification of a development consent in accordance with this section shall not be construed as the granting of development consent under this Division but a reference in this or any other Act to a development consent shall be a reference to the development consent so modified. ..." . The subject development is "designated" development being an extractive industry as described in Schedule 3 to the Environmental Planning and Assessment Act Regulation. Pursuant to its statutory obligation, the Court gave notice as prescribed to persons who made submissions pursuant to s.87 in relation to the application for consent for designated development and I have considered further submissions made by those persons. The objectors who have made oral submissions to the Court are Mr. R.C. Williams and Mr. P.O. Williams, the owners and occupiers of Lot 4 DP255621 and Mr. and Mrs. Moore, the owners and occupiers of Lot 1 DP255621. The Messrs. Williams and Mr. and Mrs. Moore were original objectors. Mr. P.O. Williams gave evidence in the original proceedings but Mr. and Mrs. Moore did not. Jandra seeks to modify conditions 2.29 and 2.24. 2.24 provides, in effect, that noise levels from any activity associated with the quarry should not exceed 5dB(A) when measured against existing dwellings on Lots 1, 3 or 4 DP255621. It is suggested that after the words 5dB(A) the words "above the background noise level" should be inserted. This is agreed and I propose to modify the consent as asked. I am also asked to modify condition 2.29 by substituting for the words "50,000 tonnes" the words "150,000 tonnes" and for the words "2000 tonnes" the words "10,000 tonnes". That is, I am asked to modify the consent to effect the result that the quarry owner may now extract hard rock in quantities not exceeding 150,000 tonnes per year and up to 10,000 tonnes in any one week. Mr. Finch, on behalf of the objectors, submits that the Court would not be satisfied that the new proposal will be substantially the same development that was the subject of the development consent granted on 2 June 1986 (s.101(1)(a)) and that it would not be satisfied that no prejudice would be caused to people who had objected (s.101(1)(b)). He also submits that even if Jandra establishes in its favour the matters referred to in s.101(1)(a) and (b) the Court ought not, in the exercise of its discretion, grant the application. The resource at Jandra is high quality material. Until recently the sole source of comparable material available to the Taree area was Raymond Terrace approximately 120 kms away. The Taree-Forster area is growing rapidly and needs material of the quality available from Jandra. Recently, the Council granted development consent to Wyan Holdings to quarry high quality hard rock from a site not far from Jandra. It appears that Wyan has not commenced quarrying operations and there was speculation in these proceedings whether it proposes to do so in the near future. Wyan's views on this matter were not presented to the Court. However, I do not think the future of Wyan's operation is of much significance in the present application. It is clear on the evidence before me that there is considerable demand for hard rock aggregate in the Taree area. If Wyan does not commence production, the only local source would be Jandra and if Wyan does commence production Jandra will represent healthy competition for Wyan and vice v ersa. Another matter which was extensively canvassed before me was whether, as asserted by Mr. Williams and Mrs. Moore, Jandra has failed to abide by the conditions of its consent. Mr. Williams has said that on at least ten to twenty occasions since June 1986 and five to ten occasions this year the quarry has worked at weekends and outside the hours of operation permitted by the Court. Mr. Williams has presented photographs to the Court. I think it is more probable than not that there have been some breaches of conditions but I do not think the breaches are as frequent or as offensive as Mr. Williams claims. It is fairly clear that sometime during March of this year at least one front end loader of Jandra was working at the quarry. Mr. Power, the Council's planner, and Mr. Halvorsen from the State Pollution Control Commission claim to have investigated complaints from Mr. Williams and Mrs. Moore and both claim they have been unable to substantiate the complaints. Mr. Power is criticised because, it is said, he limi ted his investigations to asking Jandra whether it was working outside permitted hours and accepting Jandra's assurance that it was not. Mr. Frail has given evidence refuting many of Mr. Williams' claims and I accept his evidence. I think Mr. Williams' evidence is coloured by his hostility to Jandra's operation. Furthermore, I accept that although Mr. Williams is able to hear the quarrying operations the noise to which he is subject has not, except perhaps once or twice, exceeded 5dB(A) over background. The level of the quarrying noise and its duration as proposed would not, I think, trouble the hypothetical reasonable person in Mr. Williams' position. Mr. Williams' perception is affected by his deep opposition to the quarry with the result that he exaggerates. So far as Mrs. Moore is concerned, although, as will be seen, I find that she also exaggerates, I find that she can hear and feel blasting from the quarry and that her opinion that the blasting is damaging her house is one that is reasonably open to he r even if she is wrong in fact. I shall return to these matters later. When the matter was before me in June 1986, I imposed a number of conditions by way of performance standards designed to ensure that the operation of the quarry would be as environmentally inoffensive as possible. The subject site is approximately 40 hectares and is surrounded by other holdings. Jandra overcame part of the opposition by acquiring surrounding land. However, not all people were prepared to sell. When granting consent, conditions were imposed designed to ensure that the noise from the quarry would not exceed by more than 5dB(A) the ambient background noise measured by the SPCC at locations set out in the conditions. Performance conditions relating to blasting were imposed to ensure that blasting should not exceed 115dB(A) when measured at existing dwelling houses and that ground vibration levels should not exceed 5mm per second. The consent was conditional upon noise levels being generated by vehicle movements not to exceed LEQ 55 dB(A) at Mr. Williams' house. Conditions were imposed with respec t to dust suppression and with respect to the use of quarrying equipment. The consent was conditional upon the quarry operating 9a.m. to 3 p.m. Mondays to Fridays. The evidence suggests that if the application is granted the additional work can be undertaken without the present noise and blasting levels being exceeded. That is to say that if the Developer quarries at the rate of 150,000 tonnes per year (or even at the rate of 10,000 tonnes per week) it is capable of undertaking the operation without the noise exceeding the limits imposed by the Court and without the level of overpressure and ground vibration being exceeded. However, and, in my opinion, significantly, although the limits will not be exceeded the duration and frequency will. If the application is granted the output of the quarry, in any one year, will be three times as great as that for which consent was granted and may, in any given week, be five times as great. The result will be that in any one year there will be three times as many vehicles visiting the site, three times as much blasting as presently undertaken and the duration of these effects will be three times longer than presently occurs. I do not think dust emission is a serious problem but it must be recognised that if the application is granted there will be three times as much dust emission as presently occurs. A consequence of granting the application will be that in any one week the above matters can be multiplied by a factor of five. The first question for determination is whether what is proposed is "substantially the same development" as that for which consent was granted. The second is whether, if this is so, I am satisfied that no prejudice will be caused to Mr. Williams or Mrs. Moore. The third question for determination is whether, in any event, in the exercise of my discretion the application should be allowed. Mr. McClellan has submitted that what is proposed will be substantially the same as that consented to by the Court. He submits that the Court gave its consent for extractive industry to extract 500,000m3 of material over a 25 year period and that if the application is granted, the development will remain substantially the same as that for which consent was granted. He submits that although I may have regard to the circumstance that the earlier consent was limited to the extraction of 500,000m3 of material over a 25 year period, it is not correct to characterise the development as being further limited to an extraction rate of only 50,000 tonnes per year (and no more than 2,000 tonnes in any one week). It is to be noted that 500,000m3 of material equals approximately 1.3 million tonnes and it would take approximately 25 years to extract 500,000m3 at the rate of 50,000 tonnes per year. I do not accept Mr. McClellan's submission. In my opinion, the consent granted by the Court was consent to extract 500,000m3 of material over a 25 year period at the rate of no more than 50,000 tonnes in any one year (and no more than 2,000 tonnes in any one week). The conditions with respect to noise levels, blasting, traffic etc. were imposed in that context. The Environmental Impact Statement (the EIS) which accompanied the development application stated in plain terms: "It must therefore be emphatically stated that the proposal under consideration relates specifically and only to the proposal depicted in the plans which accompany this statement. Any approval which may be forthcoming as a result of this application will also be confined to the limits identified in this statement. Should the Developer contemplate further extraction in the future it would be his responsibility to make further application to the determining authorities, and to again expose any proposal to public scrutiny". Later, it was stated that: "The statement relates to the consequences of removing approximately 493,000m3 of material which will satisfy all foreseeable and reasonable identifiable demands for about 25 years". A fair reading of the EIS makes it clear, in my opinion, that an essential characteristic of the development consented to first by the Council and later by the Court was that extraction in any one year would be limited to 50,000 tonnes (and no more than 2,000 tonnes in any one week). In my opinion, it is artificial to view the matter in any other way. In Double Bay Marina Pty. Limited v. Woollahra Municipal Council, 54 LGRA 313, it was held that it was appropriate to look beyond the actual terms of the consent and to look to the purpose for which the conditions were imposed to see whether the modifications of the conditions would be modifications of the details of the consent. Similarly, in my opinion, the Court should look beyond the terms of the consent and should look to the purpose for which various conditions were imposed to see whether the modification of the consent would mean that the development would no longer be substantially the same as that for which the consent was granted. As I have said, the amended development, at its most conservative, if implemented, will mean that there will be three times the amount of traffic, dust, and blasting generated by the quarrying operation and three times the duration of noise emissions over that presently prevailing. The application was assessed by the Council and the Court against the background that no more than 50,000 tonnes would be extracted in any one year (and no more than 2,000 in any one week). In my opinion, what is proposed is not substantially the same development as that for which the original consent was granted. It may be accepted that the land will be used for the same purpose as it is presently being used but that does not mean it will be the same, or substantially the same, development. To understand the nature and extent of the development sought to be modified, it is necessary to look to the conditions of the consent. In the present case, it is not necessary to go beyond the terms of the consent to determine that what is now proposed is substantially different to that for which consent was granted by the Council and later by the Court. However, if there be any doubt about the matter, it is resolved against the Developer by its EIS prepared and exhibited upon the basis of the limited production referred to therein. Accordingly, I am of the opinion that it has not been established that what is proposed will be substantially the same development as that for which consent was given. That bein g so, it is not strictly necessary for me to express any further views about the two remaining matters but I think it appropriate that I do. Although I am prepared to assume that Mr. Williams' complaints are genuinely held, I am not persuaded that all of them are true. Furthermore, the evidence before me persuades me that although the prospect of intensification alarms Mr. Williams, the fact is that the impact of the intensified activity will not be much different to that presently experienced by him. Although I am of the opinion that, in certain circumstances, the Court may have regard to what might be described as a less than rational perception of the consequence or effect of a development, I do not think those circumstances exist in this case with respect to Mr. Williams and, therefore, I do not think that Mr. Williams would be relevantly prejudiced within the meaning of s.102(1)(b) if the application were granted. That is to say, I do not think Mr. Williams would be any worse off if the intensification were allowed than he is at the present time. However, I do not think it is established that Mrs. Moore would not be prejudiced. Although I am satisfied that she exaggerates the effect of the present quarrying operation on her property, I do not think it has been established that she would not be prejudiced by an increase in blasting. The evidence before me suggests that the quarrying operations have not caused any structural damage to her house and that the minor cracking etc. about which she complains is, more probably than not, due to the settlement of the foundations of the house. Jandra's experts are of the opinion that the blasting is not relevantly the "cause" of the cracking in Mrs. Moore's house in the sense that it is not the sole cause. They do concede, however, that the blasting may have accelerated the onset of cracking which they believe would have occurred in any event by reason of settlement of the foundations. It would seem to me, however, that to accelerate the cracking is relevantly to cause prejudice to Mrs. Moore. I must emphasise th at, in the present case, I do not know whether blasting has, in fact, accelerated the cracking in her home. It is sufficient for present purposes to note that she claims that certain cracking has occurred or increased immediately after blasting. Jandra's experts concede that if this is so, the blasting would probably have accelerated the problem. It is, of course, possible that the blasting has had no effect but on the evidence before me, I am not satisfied that it has not and, therefore, I am not satisfied that the proposed increase in frequency would not be of prejudice to Mrs. Moore. If the new proposal goes ahead, her house will be subject to three times the present rate of blasting and not being satisfied that the present blasting has not adversely affected her house, I am not satisfied that three times the present rate would not be prejudicial to her. But even if it be assumed that the proposed development is substantially the same and that, in fact, Mrs. Moore's house has been and will continue to be unaffected by the quarrying activity, I do not think that, in the exercise of my discretion, I ought permit the modification. The new proposal has not been the subject of an environmental impact statement and has not been publicised in the manner ordinarily required of designated development. It is true that s.102(1)(b) operates to protect people who had previously objected and to ensure that their voices will be heard in the decision making process. However, no provision is made in s.102 for people who previously did not object. Furthermore, I cannot overlook the circumstance that confidence in the planning system would be seriously eroded if people believe that the provisions relating to designated development can be bypassed by the expedient of making successive applications to modify a previously assessed low intensity development. The reason why certain development is characterised as "designated development" with the concomitant requirement that a formal environmental assessment be undertaken is because it is recognised that such development will, more probably than not, have serious environmental impacts and consequences. The environmental impact of quarrying is directly related to the intensity of the operation. What is proposed is the trebling of the quarrying operation. I do not think it is appropriate, in the circumstances of this case, to approve the application. For the abovementioned reasons, I am of the opinion that the application should be refused. The formal order of the Court is application dismissed. 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.