A controversial proposal to expand the Martins Creek Quarry located north-west of Newcastle has been refused by the NSW Land and Environment Court (Court), the decision bringing an end to a long-standing conflict with local residents strongly opposed to the project.
The appeal was commenced by quarry operator, Buttai Gravel Pty Ltd (Daracon), following the 2023 decision of the NSW Independent Planning Commission (IPC) to refuse its State Significant Development (SSD) application which sought approval to expand the scale and rate of extraction at the existing hard rock quarry. The IPC’s decision went against a recommendation for approval of the expanded operations made by the NSW Department of Planning and Environment which had considered that, with the imposition of a comprehensive suite of conditions of consent, the benefits of the project would outweigh its residual environmental and social impacts.
Consistent with the IPC, the Court ultimately found the evidence in relation to the project’s adverse road, safety and social impacts to be “clear and strong”[1] and in undertaking the task of balancing the public interest in approving or disproving the project, concluded that its benefits could not match its adverse impacts.[2]
Background
The project
Under existing approval conditions, the quarry has an extraction limit of up to 500,000 tonnes per annum (tpa) and a processing limit of up to 449,000 tpa. In addition, road transport under the existing approvals is limited to no greater than 30% of annual production. The development application sought approval for the increased extraction and processing of quarry product material up to 1.1 million tpa over 25 years, to be transported by road and rail.
Decision of the IPC
The IPC acknowledged the benefits of the project, including the provision of approximately 120 construction jobs and the continued supply of high-quality construction materials which would support housing and infrastructure development in the Hunter, Central Coast and Sydney Regions. However, these benefits were deemed to be outweighed by its findings that the proposal would have significant unacceptable impacts. Specifically, in its Statement of Reasons for Decision, the IPC noted that the increased truck movements that would be generated (up to 160 quarry truck movements per day) through the main street of Paterson, as well as through Bolwarra and Bolwarra Heights, would have impacts on residential amenity, tourism, local businesses and road and pedestrian safety that would result in significant and adverse impacts on the communities in the affected areas. The IPC consequently concluded that the project was not in the public interest.
Key issues before the Court
Concerns regarding the project’s road safety and traffic impacts, associated with the primary haulage route, as well as associated noise and social impacts, persisted in the merit appeal proceedings before the Court. Despite Daracon proposing various measures aimed at addressing such impacts, including nominated road works and intersection upgrades, financial contributions towards capital works and road maintenance being made and consent conditions designed to ensure road haulage limits, these mitigation measures were not persuasive. The Court was not satisfied that such measures sufficiently resolved the negative consequences of the proposal.
In respect of the key issue of road safety and traffic, the Court considered that the application lacked sufficient evaluation of any particular incremental risks associated with the proposal beyond four specific sites and consideration of mitigation strategies that were warranted in respect of these risks. Whilst Daracon argued all road safety related issues were capable of being assessed and dealt with by way of consent conditions, the Court concluded that it was still obligated to fully assess the traffic related safety impacts of the proposal under s 4.15(1) of the Environmental Planning and Assessment Act 1979 (EPA Act).
The Court also noted an insufficiency of information provided during the hearing in relation to traffic safety, in particular relating to intersection design and feasibility and traffic queuing. For example, the Court considered it reasonable to expect models of the kind used in Daracon’s traffic assessment to be validated by representative in-field measurements which were not provided.[3] Without this information, the Court considered it had insufficient knowledge of the effects of the additional quarry trucks on the Melbourne St / New England Highway intersection, including whether any particular critical junctures might be reached as a consequence of the proposal warranting mitigative treatment.
The social impact consequences involved with quarry truck related road safety were also found to be “major”[4] by the Court who was not convinced by Daracon’s submission that the history of quarry activity and truck haulage along the haul route would soften this impact.
Takeaways
This case serves as an important reminder of the persuasive burden an applicant bears in satisfying the Court that development consent ought to be granted. In this matter the Court ultimately held that the applicant failed to meet the persuasive burden, concluding:
- the adverse impacts of the proposal outweighed its benefits; and
- the proposal was lacking in certain information reasonably required to undertake an evaluation of the impacts of the proposal under s 4.15(1) of the EPA Act.[5]
Both of these issues were determinative of the Court’s decision to dismiss the Applicant’s appeal in this matter.[6]
Even when SSD applications are supported by a rigorous and comprehensive body of high-quality supporting evidence, the Court may still conclude that there is a lack of thorough and detailed evidence addressing a project’s full range of impacts. As demonstrated in this case, this can result in unresolved disputes and may also hinder the consent authority’s capacity or inclination to impose consent conditions that might otherwise adequately mitigate those impacts.
The judgment discussed in this article can be found here: Buttai Gravel Pty Ltd v Independent Planning Commission – NSW Caselaw.
[1] at [322]
[2] at [326]
[3] at [152]
[4] at [216]
[5] at [331]
[6] at [4]