KENNETH JOHN HART v. YARROWLUMLA SHIRE COUNCIL [1995] NSWLEC 58 (7 April 1995)

Land and Environment Court of New South Wales

Record of hearing

Judge Pearlman J

Number 10130 of 1994

Parties Applicants Kenneth John Hart

Sidney Arthur Hart

Geoffrey Robert Hart

Respondent Yarrowlumla Shire Council

Key issues Development application - Extractive Industry - Sand mining quarry - Visual impact - Need for the development - Planning controls

Statutes Environmental Planning and Assessment Act 1979 s 90

Hearing dates 13, 14, 15 February 1995

Judgment Reserved

Date of judgment 7 April 1995

Appearances Applicants Mr R Arthur, Barrister

Respondent Mr A A Bradbury, Solicitor

Solicitors Applicant Gillespie-Jones & Co

Respondent Sly & Weigall

Number of pages 19

Summary of orders

Appeal upheld

Consent granted subject to conditions

Contents Page

Introduction 1

The site 1

The proposal 2

The planning context and issues 4

Visual impact 5

Need for the development 9

Pre-empting planning instruments 13

Conclusion 16

Conditions of consent 17

Orders 19

Conditions of consent 1 - 25 Annexure "A"

IN  THE  LAND  AND							10130 of 1994	

ENVIRONMENT  COURT					Pearlman J

OF NEW SOUTH WALES					7 April 1995

KENNETH JOHN HART

SIDNEY ARTHUR HART

GEOFFREY ROBERT HART

Applicants

v

YARROWLUMLA SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

This is an appeal by the applicants against a determination by Yarrowlumla Shire Council ("the council") to refuse consent to development application D 228/92, lodged by them on 30 September 1992, in which the applicants sought consent for sand mining.

The Site

The development application relates to Lot 21 in deposited plan 715621 ("the site"), which lies approximately 4.5 km north of Bungendore off the Bungendore-Tarago road (MR 268). Access to the site from the Bungendore-Tarago road is via a right-of-way over part of lot 22 in deposited plan 715261.

The site lies in the Lake George alluvial basin. To the north is Lake George, and about 3 km to the west is a high escarpment, known as the Lake George escarpment. The western boundary of the site follows a small creek known as Turallo creek.

The area of the site is 80.1ha. It is roughly in three sections - there is an elevated alluvial terrace to the north of the site, which is known as the "upper terrace", a similarly elevated alluvial terrace to the east, known as the "lower terrace" and the remainder is low lying floodplain. It is not intended to extract material from the whole site, but rather to use the upper terrace for this purpose, and to leave the remainder of the site for its current use of grazing livestock.

I record that I had the benefit of a site inspection.

The Proposal

The proposed development is described in the environmental impact statement ("the EIS") which accompanied the development application as the extracting, screening, washing and transporting of up to 200,000 cubic metres per year of fine and coarse sand and fine gravel. The main features of the proposed operation are as follows:

sand and gravel will be extracted from cells each approximately 2 ha in area;

the cells will descend to a depth of 8m below the existing ground level;

as the water table in the upper terrace has been assessed to occur at a level of 3.5m below ground, both dry and wet extraction will be utilised;

prior to the excavation of each cell, a 2m high bund will be constructed on the west side of the proposed cell, formed from the topsoil stripped from the cell area;

a work platform 3m deep will be excavated in each cell behind the bund, it being intended that the works area for cell operations (involving mobile plant) will mostly be below the existing ground surface level;

only two cells will be worked at any time, one presently operating cell nearing completion, and the other being developed;

a works area (comprising a weighbridge, office, fuel storage, workshop and temporary stockpiles) will be constructed at the eastern boundary of the site, behind a 2m high bund constructed on the western side;

a sedimentation pond, designed to accommodate runoff from a 1 in 100 year rainfall event, will be located adjacent to the works area on the eastern boundary of the site;

the rehabilitation process will not attempt to restore the site to its present landform. Rather, rehabilitation on completion of operations on the site will result in a surface profile of several excavated pits transformed into ponds or wetlands, with sloped grass verges to the original ground level. In general, rehabilitation will be carried out on a prior fully worked cell before completion of work on a presently worked cell.

There are a number of sand and gravel quarries operating in the general location of the site. Whilst the evidence is somewhat unclear, it seems that the currently operating quarries are as follows:

The Readymix Group operates a quarry of about 190 ha immediately adjoining the site. This is the largest quarry in the area and has the capacity to produce up to 180,000 tonnes of extractive material per annum. Much of the Readymix site is being actively quarried although parts are disused and some have been rehabilitated to form wetlands.

The Corkhill Brothers operate a small quarry which is believed to be almost exhausted.

Tobiway Crushing has approval to extract up to 200,000 m³ per annum on its site until October 1995. Actual rates of extraction are well below the maximum figure. The Tobiway site has been quarried since 1977 and it is believed that the site has approximately 15 years worth of reserves.

J D Kilmartin, a newly approved short-term operation, is designed to supply gravel and other fill material to the Elmslea Estate development near Bungendore. The operation is limited to supplying a total of 240,000 tonnes over a period of five years.

The Planning Context and Issues

The site is zoned part Rural 1(a) and part Rural 1(b) under the Yarrowlumla Local Environmental Plan 1993 under which extractive industries are permissible with consent. As the proposed development is to be for an extractive industry it falls within a category of "designated development" in sch 3 to the Environmental Planning and Assessment Regulation 1994, and hence the development application was accompanied by the EIS.

At a meeting on 23 February 1993, the council determined the development application by refusal of consent for the following reasons:

"1 The increase in activity will have a detrimental impact on the amenity of the area having particular regard to noise; and

2. Justification for the increased rate of production has not been proven."

A notice to this effect, pursuant to s 92 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act") and dated 12 March 1993, was sent to the applicants.

On 9 March 1994, the applicants commenced this appeal by filing a class 1 application seeking review of the council determination under s 97(1) of the EP&A Act. According to the council minutes on 11 July 1994, the council later received legal advice to the effect that its original advertising of the proposed development had been flawed. The council resolved to re-exhibit the proposal and to reconsider the development application prior to this appeal being heard. On 23 August 1994, the council once again determined to refuse consent, this time on the following grounds:

"1. Detrimental impact on the amenity of the area in regard to noise

2. Detrimental visual impact

3. Exacerbation of traffic impact on the Village of Bungendore

4. Need and justification not proven

5. Approval would pre-empt the Regional Planning exercise and other studies which relate to the broader issues of development of the Lake George Basin

6. Approval would pre-empt the environmental and social impact study by the Bungendore Village Enhancement Program group."

A s 92 notice in relation to this second determination dated 25 August 1994 was sent to the applicants.

At the hearing of this appeal only three of these issues remained as live issues before the Court. Those were the issues of visual impact, justification for the development and the possible pre-empting of a new strategy for the area.

Visual Impact

The issue of visual impact has a number of components. There is, first, the possible impact from the actual extractive operations, and secondly, the longer term impact likely to arise from the proposal to rehabilitate the site into a series of permanent ponds. There is also the question of who would be affected - would there be an impact upon the surrounding land, or would the impact be confined principally to the residences located on the Lake George escarpment?

The EIS dealt with visual amenity, specifically the views from the Lake George escarpment, in the following way:

"The view from the top of the Lake George Escarpment includes the whole site, the adjacent Readymix workings and the existing other workings further to the north of the site ... [t]he disturbed working areas on the Hart property will be limited to about 4ha at any one time, and should not have a significant impact on the scenery."

Mr B A Frazer, an environmental planner, who gave evidence on behalf of the council, noted at least nine dwelling houses on the escarpment which would have unobstructed views of the site and the adjoining Readymix operation. He stated that the site was visible from Joe Rocks Road, a public road which runs along the escarpment, although he conceded in cross examination that this road is unlikely to be used by anyone apart from the residents who live along it. His concern was that the elevation of the residences on the Lake George escarpment was such that any screening of the site would be "virtually impossible". In answer to questions put to him in cross-examination, he said, for example, that the trees located between the site and the Readymix operation would have, at best, only a marginal screening effect to the residences upon the escarpment. He also thought that the adverse visual impact from existing quarries would be exacerbated, because the proposed development would take a market share from those existing quarries and thus slow their rate of extraction and prolong their rehabilitation programmes.

Mr D McC Hogg, an environmental consultant, carried out an independent assessment of the development application. He identified the main problem of visual impact from the Lake George escarpment as the existing Readymix site. Mr Hogg stated that "[w]hile the impact of the present proposal would be small by comparison, any extension of the impact without rehabilitation of existing areas can be considered undesirable". (emphasis as in quoted text)

Visual impact was dealt with in the "Southern Lake George Basin Extractive Industries Draft Management Strategy", a document produced for the council in December 1994 by Mr W J Wright. Mr Wright examined the issue of the visual impact of sand and gravel quarries generally stating that the "degree of visual impact depends on the area of land disturbed at any one time and the topography of the area, which determines the visibility of the site". In his opinion, the topography of the general area had two consequences. Because it is largely low lying and gently undulating, none of the quarrying operations in the area are greatly visible from surrounding land. However, the escarpment overlooks them, and because of its elevation, he considered (as did Mr Frazer) that there was little scope for screen plantings or other methods to minimise the visual impact.

The evidence of Mr R A Pepper, a landscape architect of Lester Firth Associates Pty Ltd, supported Mr Wright's opinion that the visual impact from existing quarries upon surrounding land is minor due to the fact that the area is flat, slightly undulating and contains rows of trees. Regarding views from the escarpment at present, Mr Pepper pointed out that there was already effective screening of impact upon some points of higher elevation. In this connection, he noted the tree rows between the site and the Readymix operation, and the willows along Turallo creek. He also noted that whilst elevation increases the extent to which existing quarries are visible, their impact reduces with distance, and in this connection, he cited the Readymix and Corkhill quarries as being in the "mid-ground" approximately four kilometres from the escarpment. He stated that these are also the largest quarries and "by any account unsightly".

Mr Pepper was of the opinion that the proposed development could be effectively screened during its operation through the use of berms or bunds as visual barriers. He suggested that if the plant and equipment were placed 3 m below the ground surface level and a 2m high bund was constructed at ground level, extended to 3 m with planting, much of the operations would be screened. Mr Pepper conceded in cross examination that this method could never effectively screen the whole of every cell being worked and that the amount of visibility would vary depending on the relative positioning of the equipment and the bunds at any time.

In relation to the long term visual impact associated with the creation of ponds, Mr Pepper suggested that these will become "'cultural artifacts' in much the same way as rows of pines on property boundaries have". Mr Frazer, when questioned in relation to this assertion, stood by his opinion that the ponds would impact negatively on views from the escarpment as they are not a natural feature of the landscape.

In relation to the visual impact of the site once it has been fully rehabilitated, I note that the creation of wetlands was recommended as appropriate in the Southern Lake George Basin Extractive Industries Draft Management Strategy and in a report by Warren & Associates Pty Ltd relating to reclamation and restoration of the Readymix site. While the creation of ponds will permanently alter the landscape, I am of the opinion that this alteration will not be detrimental to the views from the escarpment.

I note at this point that the occupants of only two of those residences identified by Mr Frazer lodged objections with the council and that only one of those, Ms A Satchell, objected on the ground of impact on visual amenity.

The evidence establishes that the proposed development will have a visual impact both in the short and long term. I take into account the following matters:

The principal potential visual impact is upon residences located upon the Lake George escarpment. The impact upon land surrounding the site is minor.

The existing quarries currently impact considerably upon residences located upon the Lake George escarpment. In comparison, the potential impact from the proposed development is much less significant than the current impact for two reasons. First, it is to be located immediately adjacent the Readymix site which will make it less noticeable, and more likely to be perceived as part of the existing operations. Secondly, the amount of disturbed area of 4 ha at any one time is very small in comparison with the large expanse of excavated area on the Readymix land.

The impact on views from the Lake George escarpment is, as Mr Pepper pointed out, lessened by distance, and the proposed quarry will be about 4 km from the escarpment.

The method by which the extraction is to take place upon the site should minimise visual impact; that is, extracting from two of the 2 ha cells at any one time, progressively rehabilitating cells as they become exhausted, and placing bunds to the west of each cell as it is being operated and to the west of the works area.

The rehabilitated ponds will permanently alter the landscape but not in a way which is unacceptable.

Only one resident of the Lake George escarpment identified visual impact as a concern.

Need For the Development

There were competing submissions made to the Court by the legal representatives of the parties as to whether the issue of demand for the resource to be extracted was one which the Court should consider in the circumstances of this case.

Mr Arthur's submission on behalf of the applicants was that the Court should not enter into an investigation of need unless there can first be shown some adverse environmental effect. He said, as I understood him, that in the balancing process that the Court is required to undertake in fulfilling its role as consent authority, the Court need only look at the question of whether or not a development is justifiable economically if it is first established that it is unjustifiable for other reasons. He submitted that in this case the council has failed to show that the development would have adverse environmental impacts so that the Court need not consider the questions of viability and competition.

In support of this argument, Mr Arthur referred to the High Court decision of Kentucky Fried Chicken Pty Ltd v Gantidis & Anor [1979] HCA 20; (1979) 140 CLR 675 in which Stephen J stated at 687 that:

"If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration."

The gravamen of the High Court decision was that increased competition resulting in financial losses for competitors of a proposed development is not of itself a relevant town planning consideration (R v City of Salisbury; Ex parte Burns Philp Trustee Co Ltd (1986) 60 LGRA 40, Murragong Nominees Pty Ltd & Anor v Melbourne and Metropolitan Board of Works (1985) 60 LGRA 210). However, such a factor may become relevant if it is specifically adverted to in a relevant planning instrument.

But I do not think that the council is claiming in this case that the proposed development should not go ahead merely because it threatens the financial viability of the existing quarries. Rather, the council's case is that the Court should consider, under s 90(1)(d) of the EP&A Act, the economic effect of the proposed development, namely, the adequacy of current reserves, the short term contribution of the proposed development to the market, and that the development is not necessary to provide competition. I do not think that these are matters that can only be taken into account by the Court when a positive finding of environmental detriment can be shown. I turn, then, to the evidence of economic effect.

A draft report of Mr G P MacCrae entitled "Draft Construction Material Resources of the A.C.T & Subregion" was produced for the Department of Mineral Resources in June 1993. That report identified the Lake George area as representing the largest single sand and gravel resource with potential to supply the Canberra/Queanbeyan market. The report concluded that the known available reserves would last approximately 14 years for construction sand and 20 years for coarse aggregate.

In a letter dated 10 February 1995 addressed to the solicitors for the council, the Department of Mineral Resources stated that the Readymix and Tobiway Crushing operations currently supply 40% and 30% respectively of the construction sand market for the Canberra/Queanbeyan area. The evidence also established that Readymix is presently extracting about 112,000m³ per year and that Tobiway Crushing is producing at levels well below its approved extraction rate of 200,000m³ per year. The Department of Mineral Resources stated that, at their current extraction rates, these operations will be able to maintain their output for more than 20 years.

As to the expected rate of extraction from the proposed development, Mr S A Hart (one of the applicants), in his evidence suggested that the figure of 200,000m³ per year specified in the EIS was a maximum. He realistically expected that the applicants will only be able to achieve a rate of 160,000 - 175,000m³ per year. In cross examination, Mr Hart admitted that he required at least 100,000m³ of dry extraction or 130,000m³ of wet extraction per year to make a profit. He was confident in the face of suggestions to the contrary that he could find a market for this amount of product, despite the market share of the two largest suppliers.

The Department of Mineral Resources has commented twice on this proposal. In a letter of 19 May 1994, the Department wrote to the council stating that the "[r]esource aspects of the proposal ... are considered adequate" and that it "strongly supports the proposal as it could make a significant contribution" to the market. However, on 10 February 1995, the Department revised its assessment from one of strong support to one of "support". The letter of 10 February 1995 went on to say that:

"[t]he proposed operation is now considered likely to make a significant, and perhaps substantial, contribution to the supply of construction sand and gravel to the Canberra/Queanbeyan and nearby regional market over its operating life, but due to its relatively limited reserves is considered unlikely to make a significant contribution in the mid to longer terms."

In addition, the Department stated that this proposal "could also exert considerable influence on community perceptions of the consequences of sand extraction in the southern Lake George area".

Much was made of this correspondence by the representatives of both parties. Mr Arthur noted that the Department continued to support the proposal while Mr Bradbury, for the council, claimed that this downgrading was as a result of more recent information and a fear of a negative effect on community perceptions. I think the most that can be concluded from this correspondence is that the proposal, if allowed, will be able to find a place in the market and will have an effect on the market, although due to the size of the deposit to be extracted and the proposed rate of that extraction, this effect will only be in the short term.

Mr Bradbury submitted that on this evidence, the Court should consider that there is insufficient need for a new source of sand and gravel in the region to justify the development. He submitted that when undertaking its consideration the Court should take into account the fact that the market is sufficiently competitive and that it has sufficient resources for at least the next 20 years and that this development will add neither necessary competition nor a long term supply to that market. He submitted that these factors demonstrate that the development will have insufficient public benefit to outweigh its other negative effects such as visual impact.

I disagree with Mr Bradbury's contention. The evidence establishes that material which is to be extracted is a valuable resource which it is appropriate to exploit. The proposed development will contribute to the supply of construction sand to the Canberra/Queanbeyan market, although, as the Department of Mineral Resources noted in its letter of 10 February 1995, that contribution will be significant only in the short term due to relatively limited reserves. In balancing all the considerations relevant to the matter, I conclude that there is a public benefit in the exploitation of the resource.

Pre-Empting Planning Instruments

The final issue in this case relates to an allegation by the council that the grant of development consent would pre-empt the regional planning proposals and studies concerning development in the Lake George basin.

An important document in this respect is the planning report entitled "Southern Lake George Basin - Extractive Industries - draft Management Strategy" ("the Draft Strategy"). The Draft Strategy was prepared by Mr W J Wright for the council and completed in December 1994. The council resolved on 16 January 1995 to adopt the Draft Strategy and it was on public exhibition when the hearing of this case took place. The document contains background information, a discussion of the issues relating to the extraction of sand and gravel in the area and, following its conclusions, a draft management strategy which comprises a series of objectives and a number of actions which are intended to assist in the achievement of those objectives.

Mr Wright furnished a report and gave evidence. His opinion was that the proposed development was inconsistent with a recommendation of the Draft Strategy that no new operations be commenced until a current operation has ceased. That recommendation arose out of two aspects of the Draft Strategy.

The first aspect concerned objective No 4, which is to "minimise the negative impacts of heavy vehicles and noise on nearby residents and residents of Bungendore". One of the actions proposed to achieve that objective was to "[l]imit impacts to present levels by implementing a moratorium on new operations until an existing operation ceases or an alternative transport route avoiding Bungendore becomes available". The transport route which is to be adopted by the proposed development for deliveries to Canberra and Queanbeyan is via Tarago Road (MR 268) and Kings Highway (MR 51), and it passes along the western extremity of Bungendore. There is a possible alternative route, via Gundaroo Road and Macs Reef Road to the Federal Highway, but loads on those roads are at present limited and they are not therefore available. Hence, Mr Wright suggested that approval of the proposed development be deferred until the alternative routes become available.

The second aspect which arose out of Mr Wright's analysis concerned objective No 6, which is to "minimise the area of land disturbed at any time". One of the actions proposed to achieve that objective was to "[a]void proliferation of operations but ensure current production levels by not approving new applications until an existing operation is completed". This led, once again, to Mr Wright recommending deferral of development consent for the proposed development.

Mr Bradbury submitted that it was clear that the current proposal is inconsistent with the Draft Strategy. He submitted that the Draft Strategy represents the "current thinking of the council" and that if the Court were to look at the development application in a regional context and in light of the fact that it involves a resource of regional significance then the Court will protect the site by refusing consent until the council has adopted a management plan which will see the proper working of that resource.

The submissions made by Mr Arthur stressed the fact that the Draft Strategy is a draft document which the Court is not bound to take into account. He contended that, while it is an instrument to which the Court may have some regard, it should be given very little weight and that the Court would be in error should it try to apply the Draft Strategy rigidly.

Under s 90(1)(a) of the Act, the Court is required to have regard to the provisions of any environmental planning instrument, any draft environmental planning instrument which has been placed on exhibition, any draft State environmental planning policy which has been submitted to the Minister and any development control plan in force that applies to the land to which the development application relates. "Environmental planning instrument" is defined relevantly in s 4 of the EP&A Act to be "a State environmental planning policy, a regional environmental plan, or a local environmental plan ...".

The Draft Strategy is not an environmental planning instrument nor a draft environmental planning instrument, nor is it a "development control plan in force ... that applies to the land". Its provisions are not required to be considered under s 90(1)(a) of the EP&A Act, and they have no binding effect. They are persuasive only. In any event, the recommendations of the Draft Strategy do no more than raise some matters of impact which developments of this nature nearly always raise, that is, for example, matters of traffic and visual impact. Those impacts must always be considered and accorded such weight as is appropriate in the circumstances.

I place little weight on the unavailability of alternative transport routes for the proposed development. There was no evidence that the route past the outskirts of Bungendore has such a severe impact as to be unacceptable. I take into account, moreover, the unchallenged assertion in the EIS that traffic movements for all sand processors in the area is governed by the demands of the Canberra/Queanbeyan market, and that, since additional sales generated by the proposed development will reduce sales by other operations, the overall truck movements will be effectively unchanged.

As to the objective of minimising the area of land disturbed at any one time, I take into account the various proposals for minimisation, such as limiting extraction to two cells at any one time, and progressive rehabilitation. Where methods of minimisation are proposed, and their implementation is likely to minimise the area of land disturbed to a satisfactory degree, it would not be appropriate to ignore those proposals and instead to minimise impact by refusing or deferring development consent. Indeed, methods of minimisation are a consideration which appears in the Draft Strategy itself. One of the other actions proposed to achieve objective No 6 is to require as a condition of consent that extraction be staged and that rehabilitation is carried out progressively.

The other document of relevance to this issue is a document called "ACT and Sub-Region Planning Strategy - Position Paper No 4 - Extractive Industries" ("the Position Paper"). It is a paper prepared in draft in August 1994 and is based on a report prepared by a working group comprising representatives of the Department of Planning, the Department of Mineral Resources, and the councils of Cooma-Monaro, Gunning, Mulwaree, Tallaganda, Yarrowlumla and Yass. Its purpose is to provide the foundation for a regional policy for particular extractive industries, of which sand mining is one, and it proposed that its land protection strategies be implemented by means of a joint-council local environmental plan.

One of the strategies which the Position Paper identifies is to investigate and assess certain sites according to a list of factors in order to identify and prioritise regionally significant deposits. Those factors are six-fold - environmental values, urban development potential, rural residential development potential, currently operating sites, supply and demand and proximity to markets.

Mr Frazer was cross-examined about the application of each of these factors to the site. He conceded that the site, as part of a larger deposit of suitable sand for mining, would rate highly on factors such as being a proven deposit, having proximity to intended markets and end users, and being relatively economical to extract, so that it would, subject to environmental constraints, be likely to be earmarked for further development. The environmental constraint which he identified was the visual impact; in particular, the visual impact of the changed landscape after rehabilitation of the extractive operations within the area.

Mr Arthur submitted, and I agree, that, analysed as set out above, the proposed development is consistent with the proposals enunciated in the Position Paper, taking into account that its visual impacts can be minimised and that they are not impacts which irretrievably compromise the environmental values of the region.

Conclusion

Taking into account all the matters that I have set out, I have concluded that:

appropriate ameliorative measures are proposed to minimise visual impact upon the residences on the Lake George escarpment, both in the short term and in the long term, and that there is no significant visual impact upon the surrounding area;

there is an economic justification for the proposed development which is not outweighed by potential visual impact;

any inconsistency with the Draft Strategy is not significant in the circumstances, and should be given little weight in the light of the status of that strategy as no more than a draft policy document; and

there is no inconsistency with the Position Paper.

I am of the opinion, accordingly, that development consent should be granted, subject, however, to conditions.

Conditions of Consent

Draft conditions of consent were tendered by the council and two of these, conditions 3(ii) and 21, were disputed by the applicants.

Condition 3(ii) as submitted by the council requires that sufficient width should be provided to allow a through vehicle to pass a right turning vehicle at the junction of the access to the site and the Bungendore-Tarago road (MR 268). The applicants, in response, proposed that access to and from the site from the north be prohibited unless the applicants have previously carried out such works. Mr Arthur told the Court that the reason for this change was that there were no plans at present to have vehicles either approaching from or leaving towards the north and that such works should only be required if these vehicle movements were necessary.

No evidence was given orally by the officer of the Roads and Traffic Authority who had suggested this condition, Mr W Smart, but his letter to the council dated 15 January 1993 was tendered. In referring to this requirement, Mr Smart stated that it is a "minimum right turn treatment for all rural junctions".

I see no pressing reason why the council's condition should not remain. The standard is one applied to all rural junctions and although the applicants are not currently planning for their vehicles to enter or leave the site to the north, other vehicles may wish to do so. Accordingly, the condition will remain as proposed by the council.

Condition 21 (now condition 20) deals with the requirement for the applicants to prepare a management plan and a revised development/rehabilitation plan. The amendment sought by the applicants is that they be permitted to submit any proposed variation to those plans from time to time, but that any such variation be implemented only on approval by council. Mr Arthur submitted that this amendment was sought in order to avoid any possible formality that might arise if the applicants saw the need to amend their plans in some way. The council did not strenuously oppose this amendment. The condition will be amended, therefore, in the manner sought by Mr Arthur.

I have made one other substantial amendment. The council sought the insertion of a condition, numbered 14, which limited the period of the proposed development to a period of six years. The applicants raised no objection to this condition, and I think it is appropriate to impose it. However, it is inconsistent with the condition numbered 13 originally suggested by the council, which limited the "term of operation" to five years. I have accordingly deleted the former condition 13, and renumbered all subsequent conditions.

I have also made some minor typographical and other amendments to the draft conditions in the interest of consistency and clarity.

Orders

Accordingly my orders are as follows:

1. The appeal is upheld.

2. Consent is granted to development application D 228/92 to use land at Bungendore described as lot 21 and 22 in deposited plan 715621 for the purpose of sand mining and access subject to the conditions annexed and marked "A".

3. The exhibits may be returned.

There will be no order as to costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 18 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE M L PEARLMAN AM.

Associate

ANNEXURE "A"

CONDITIONS 1 - 25

Hart and Ors v Yarrowlumla Council

1. The applicants produce evidence from a qualified acoustic specialist to lead to conclusion that the noise impacts on surrounding residences are within the maximum planning levels. This be based on the following criteria:

a. There should be recognition of the following broad objectives for environmental noise as quoted in the EPA Manual (Chapter 19):

that noise from any single source does not intrude greatly above the prevailing background; and

that the background noise level does not exceed the level appropriate for the particular locality and use.

b. The approach should acknowledge that the area is a 'noisy' rural area and should include existing extraction noise in the assessment of background noise.

c. Background noise should be measured or estimated at nearby residences, not at the site boundary, for purposes of setting maximum planning levels. This should include some residences on the escarpment to address their possible concerns about increased noise. The background noise assessment should consider both typical and extreme atmospheric conditions.

d. While Tables 20-1 and 21-1 of the EPA Manual provide a basis for determining planning levels, the derivation of these levels should be clearly explained.

e. The basis for estimating future plant noise at its source and its attenuation under different atmospheric and operational conditions should be clearly explained, and used to determine noise levels under these conditions.

2. The submission of a full erosion and sediment control plan, this plan being approved by the Council and CALM (Soil Conservation Service) prior to any work commencing on site. This plan should cover all erosion, sedimentation and rehabilitation issues on both the extractive site and access roads, as well as landscaping. Specifically, this plan should address over-flow from the proposed sedimentation dam as well as final disposal of silt.

3. The intersection of the access road with MR 268 being upgraded to a standard conforming to Type A of Part 5 of the NAASRA to Traffic Engineering Practice 1988, with following:

i) A sealed left turn deceleration land should be constructed on the approach to the access point. This lane will need to be 134m long, including a 50 metre taper, with minimum of 3.0m width.

ii) Sufficient width should be provided to allow a through vehicle to pass a right turning vehicle at the road junction (see attached copy of Fig. 21 "Type A" of the NAASRA Guide to Intersections at Grade). This is a minimum right turn treatment for all rural junctions.

iii) The surface of the intersection of the access road with MR 268 including MR 268 itself being sheeted with asphaltic concrete for a minimum thickness of 40mm for a minimum distance of 20 metres either side of the centre line of the intersection to the extent not completed by CSR Readymix.

iv) A concrete median island with a kept left sign be placed at the intersection for traffic exiting the development access road.

Specifications and certified drawings should be submitted to Director of Operations and Works prior to any works commencing onsite.

4. The applicants submitting to council a copy of a consent to destroy relics (under the provision of Section 90 of the National Parks under Wildlife Act, 1974) prior to any work commencing on site as the present consent has lapsed.

5. Any refuelling facility and/or fuel storage being installed on an impermeable concrete platform with raised edges to ensure that no spilled fuel is allowed to contaminate ground water in the area. This platform shall be constructed to the satisfaction of council prior to any work commencing on site.

6. The applicants availing themselves of the services of a water tanker as required to adequately control dust problems at the extractive site.

7. No loaded haulage vehicles leaving the site before the load is fully and effectively covered.

8. Premises to be scheduled under the Noise Control Act 1975, with the applicants seeking formal approval under the Act from the Environment Protection Authority prior to any work commencing on site.

9. Operating times of the proposed sand mine being restricted to 7.00 am to 6.00 pm on weekdays and 7.00 am to 1.00 pm on Saturdays with no operation on Sundays and public holidays.

10. The area of workings being defined on the ground by the establishment of permanent concrete survey marks located and shown on a plan prepared by a registered surveyor. This plan is to be lodged with council prior to the commencement of any works. All development shall be contained within this area.

11. Access to extractive site being fenced and kept locked outside operating hours.

12. A bank guarantee in the amount of $20,000 being issued in council's favour to enable council to carry out re-instatement works in the event of default by the applicants. This amount shall be reviewed annually from the date of consent in accordance with the CPI for Canberra.

13. The period during which the development may be carried out is limited to the period of 6 years from the date of this consent.

14. Large mature trees and their immediate surrounds not being removed from the extractive site.

15. The applicants providing council with proof that physical and legal access to the extractive site zone is contained entirely within the confines of the legally defined right-of-way. A surveyor's report to this effect being submitted to council prior to any work commencing on-site.

16. The applicants at the close of each quarter submitting to council a statutory declaration indicating exactly the amount of sand (expressed in cubic metres) extracted that quarter. Nil returns as the case may be shall be submitted.

17. In accordance with condition of consent number 17 contribution towards the maintenance of shire roads in an amount of $0.0643 per tonne kilometre per cubic metre extracted shall be paid on a quarterly basis. This contribution rate being increased annually in accordance with the CPI for Canberra.

18. The quantity of material extracted being proven by survey carried out by a registered surveyor annually from the date of approval on behalf of the applicants, or in default, council to enter the development site and carry out the survey with all costs being borne by the applicants.

19. The applicants noting that council will carry out inspections on a quarterly basis of the subject premises to ensure that all conditions of consent are being fully complied with. Council reserves the right to inspect all records relating to the operation of the sand mine without the need to give prior notification.

20. The applicants shall prepare:

(a) a five year management plan for the subject land with is compatible with that prepared by the adjoining operator Readymix;

(b) a revised development/rehabilitation plan having careful regard to the interim strategy adopted by the council.

Both plans shall be approved by council prior to any work commencing on site.

The applicants may submit any proposed variations to the plans from time to time but shall not implement them without the prior approval of the council.

21. All access and haul roads on the extractive site being constructed of a crushed quarry product having a minimal silt and clay fines content.

22. The existing access within the right-of-carriageway being sealed between the entrance to the site and MR 268 to minimise dust generation. The pavement shall be designed and constructed in accordance with MR Form 76 "Guide to Structural Design of Pavements" with a traffic loading 1x10 ESA. The bitumen seal should be a coat seal with a minimum width of 6 metres to allow trucks to pass. The access shall be maintained by the applicants over the life of the operations to the extent not already completed by Readymix.

23. No work commencing on site until conditions of consent numbered 1, 2, 3, 4, 7, 10, 11, 12, 15, 20, 21 and 22 have been fully complied with to the satisfaction of council.

24. Total amount of sand extracted on an annual basis not exceeding 150,000m³.

25. The development shall be carried out in accordance with the EIS, the conditions of this consent and the management and development and rehabilitation plans approved by the council under condition 20.