Any reference to CASACIR or its directors, shareholders, owners or operators relates to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.
Buffers are required for the protection of amenity against the impacts of industry and business, including by quarries.
Definition
It is important to note the definition of a buffer: it is the distance between the outermost source (e.g. stockpiles, machinery, vehicles, equipment, bunds, benches, faces, …) of emission (e.g. dust, odour, vapour, exhaust, gases, noise, fly-rock, ground vibration, air vibration, …) to the point at which the performance standards are met (e.g. 45dB(A), 115dBL, 5mm/sec, …).
Legal requirements (made mandatory by both the Planning and Environment Act and the Mineral Resource (Sustainable Development) Act)
Clause 13.05-1S of the planning scheme states in relation to noise abatement [emphasis mine]: that the Objective was “To assist the control of noise effects on sensitive land uses” [i.e. not to see how loud it could be inflicted on those around it], and the Strategy was to: “Ensure that … community amenity is not reduced by noise emissions, using … land use separation techniques…” [but the need for “land use separation techniques” was ignored (as was the requirement for the need to “ensure that [our] amenity is not reduced”)].
Clause 13.06-1S of the planning scheme states in relation to air quality protection [emphasis mine] that the Objective was “To assist the protection and improvement of air quality” [i.e. not to see how much dust could be put into our air before we objected] and the Strategy was to: “Ensure that land-use planning … provision contributes to improved air quality by: … Ensur[ing], wherever possible, that there is suitable separation between land uses that reduce amenity and sensitive land uses”. In addition, Policy guidelines were that: “Planning must consider as relevant: *State Environment Protection Policy (Air Quality Management). *Recommended Buffer Distances for Industrial Residual Air Emissions (Environmental Protection Authority, 1990) in assessing the separation between land uses that reduce amenity and sensitive land uses” – but the “Recommended Buffer Distances for Industrial Residual Air Emissions” was ignored (as was the requirement for the “protection and improvement of air quality”)].
Clause 14 of the planning scheme states [emphasis mine]: “Planning is to assist in the conservation and wise use of natural resources including energy, water, land, stone and minerals to support both environmental quality and sustainable development. Planning should ensure agricultural land is managed sustainably, while acknowledging the economic importance of agricultural production”.
Clause 52 of the planning scheme states that the purpose of this clause was “To ensure that use and development of land for stone extraction does not adversely affect the environment or amenity of the area during or after extraction”. And 52.01 states that any application for stone quarrying must address “The use and development of land within 500 metres of stone extraction”. Clause 52.09-5 states that: “Before deciding on an application, in addition to the decision guidelines in Clause 65, responsible authority must consider, as appropriate: *The effect of the proposed stone extraction on any native flora and fauna on and near the land. … *The ability of the stone extraction operation to contain any resultant industrial emissions within the boundaries of the subject land in accordance with the Regulations associated with the Mineral Resources (Sustainable Development) Act 1990 and other relevant regulations. *The effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area. … *The effect of the proposed stone extraction on groundwater and quality and the impact on any affected water uses. *The impact of the proposed stone extraction on surface drainage and surface water quality. Any proposed provisions, conditions or requirements in a work plan that has received statutory endorsement issued under the Mineral Resources (Sustainable Development) Act 1990.” But the application was decided based on other criteria (possibly on the known conflicts of interest). I say this because: (1) the application was not decided on whether native flora or fauna would be impacted because man X, man Y and CASACIR destroyed a number of very old huge eucalypts and other vegetation and were not made to provide any replacements and were not fined for having done it; (2) the application was not decided on whether the dust could be contained within the site (because it couldn’t be and wasn’t), (3) the application was not decided on the basis of the effects on the amenity and safety because before officially making the decision to grant or refuse the application, Peter knew and advised council that the effects of the proposed quarry on the neighbours’ amenity would be very bad, and that the impacts would be very bad for a long time, but the decision was made that it was simply irrelevant and was therefore just too bad for those impacted because council wanted the quarry to proceed; (4) the application was not made on the basis of any assessment about the impacts on groundwater, surface water and drainage – and this was shown by the blatant and deliberate disregard to the fact that man X, man Y and CASACIR: (i) intended to take the flow of the clean clear spring water (Kookaburra Creek) from us (water upon which we relied and had a legal right to access and use) and replace it with their polluted quarry wastewater and drainage, (ii) did not take any assessments of the quality of the flow of the surface water, or the quality of the groundwater, prior to polluting it, and council disregarded the fact that the belatedly obtained polluted level of “quality” assessment was to become, and did become, the “control/background” level against which further pollution would be assessed, (iii) ripped out a bore without decommissioning it and for which they did not receive even a slap on the wrist, (iv) failed to provide the “wetland” area that they assured VCAT would absolutely be in place during stage 1 so that it was fully operational in stage 2 (and is still not in place 7 years after it had to be operational in spite of it being a permit condition), (v) allowed polluted drainage to exit the site in prolific amounts, allowing it to enter Kookaburra Creek and from there, into the Latrobe River – all in the face of man X, man Y and CASACIR’s adamant repeated assurances that the site was a complete “retention and re-use” site and that there would be no off-site discharges. In other words, council ignored the demand prior to the assessment, and they certainly ignored the repercussions for the 5 years before we sold, and it appears from more recent drives around the site that they are still ignoring the repercussions of their decision.
According to clause 73.03, “stone extraction” is determined to be (a) “Earth and energy resources industry: Land used for the exploration, removal or processing of natural earth or energy resources. It includes any activity incidental to this purpose including the construction and use of temporary accommodation: … Stone extraction”, (b) “industry: … winning clay, gravel, rock, sand, soil, stone”, and (c) “Stone extraction: Land used for the extraction or removal of stone in accordance with the Mineral Resources (Sustainable Development) Act 1990”.
Clause 14.03-1S states that the “Objective“ is “To encourage exploration and extraction of natural resources in accordance with acceptable environmental standards” and that the Strategies are to [emphasis mine]: “Ensure planning permit applications clearly define buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry”. The previous clause 13.03-2 of the planning scheme (in operation at the time of having the quarry forced upon us while we owned our property) was even more explicit and stated in relation to stone resources [emphasis mine] that the “Strategies” were to “…Provide buffer areas between existing extractive industries and sensitive land uses, determined on the following principles: * The buffer areas are determined so that appropriate limits on effects can be met at the sensitive locations using practical and readily available technology… Provide buffer areas between new extractive industries and sensitive land uses, determined on the following principles: * Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit” – this was a “new” quarry and had to comply with the buffer requirements for a “new” quarry, but the “Clearly defined buffer areas” which were to be “specified in an application for permit” were not “defined” nor “provided”, and were not “specified” in the application for the permit. Further, in spite of the requirement for those buffers “to be owned or controlled by the proponent of an extractive industry,” they were not owned or controlled by CASACIR – instead, the buffers were significantly on land owned and controlled by others (to the north, north-east, to the west, and to the south) – but man X, man Y and CASACIR and council did not care about this and still do not care about this. Even though the 2008 tribunal, council and DPI all agreed that man X, man Y and CASACIR’s was an application for a “new” quarry, man X, man Y and CASACIR used the definition and requirements for an “existing” quarry (“The buffer areas are determined so that appropriate limits on effects can be met at the sensitive locations”) and the authorities have all certainly “turned a blind eye” to the failures to meet legislated requirements. This clause continued with the demand that “Use of land within the buffer areas is [to be] not limited by adverse effects created by the extractive activities” – but this was totally disregarded by man X, man Y and CASACIR, as well as by DPI and council, because we lost the ability to operate our cattle raising enterprise by man X, man Y and CASACIR’s determination to rob us of our water upon which we relied, and council proved the loss of equity in our property by admitting that its value had decreased by 21%, and because of the detrimental impacts, we additionally lost the ability to operate a bed and breakfast enterprise we had intended to run.
Clause 17.03-2S of the planning scheme states the strategy is to [emphasis mine] “Provide adequate separation and buffer areas between sensitive uses and offensive or dangerous industries and quarries to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards”.
Additional documents supporting the requirement of buffers [emphasis mine]:
VPP Practice Note April 2006 – Extractive Industry Proposals page 5 stated: “Buffer requirements set out in Clause 17.09 of the State Planning Policy Framework (SPPF), including ensuring that the buffer area to a new extractive industry is owned or controlled by the proponent” [but the buffer was not “owned or controlled” by man X, man Y and/or CASACIR, the proponents]
VPP Practice Note April 2006 – Extractive Industry Proposals page 7 stated: “Protecting existing extractive industries. Newextractive industries are required to own or control a clearly defined buffer area which is appropriate to the nature of the proposed operations” [But there was no “clearly defined buffer” and the buffer was not “owned or controlled” by man X, man Y and/or CASACIR]
Review of the Extractive Industries Development Act 1995 (DPI) “Background and Issues Paper – 4.2.2 Buffers for Extractive Operations: “Extractive industry operations can generate ground and air vibrations, dust, noise, and changes to the topography and landscape. Together, the P&E Act and the EIDA provide the regulatory control of such impacts. In order to maintain the amenity, health, safety and environment of surrounding land uses, it can be necessary to ensure an appropriate separation distance, or buffer, is maintained between extractive industry operations and sensitive land uses on adjoining land[Victorian Planning Provisions]. In discussing buffers, it is important to be clear on what the basis of the buffer is. Some industrial buffers recognise that an industry will have off-site impacts, and can not regularly meet acceptable performance requirements at their boundary. Other buffers are set to provide a “safety margin” to mitigate potential worst case impacts. Many quarries have had significant amenity impacts on neighbouring land uses, e.g. dust, noise and traffic, though industry’s performance for the extractive and other industries continues to increase. Buffer requirements for extractive industries are set out in Clause [14.03-2] of the State Planning Policy Framework, including ensuring that the buffer is owned or controlled by the proponent. This was a recommendation of the ENRC review. The Victorian Planning Provisions state that the newextractive industries are “required to own or control a clearly defined buffer area which is appropriate to the nature of the proposed operations [Victorian Planning Provisions]”. [But there was no “clearly defined buffer” at all, and what buffer there was was not “owned or controlled” by man X, man Y and/or CASACIR]
G2 Guidelines to Planning Reforms Associated With The Extractive Industries Development Act 1995 – Page 4: “*Incorporates government policy regarding extractive industries to ensure that: Buffer area between new extractive industries and other sensitive land uses are owned or controlled by the proponent of an extractive industry.” [But there is no “clearly defined buffer” and the buffer is not “owned or controlled” by man X, man Y and/or CASACIR]
G2 Guidelines to Planning Reforms Associated With The Extractive Industries Development Act 1995 – Appendix 3 page 1: “Provision for buffer areas between new extractive industries and sensitive land uses should be determined on the following principles: *Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry,……..” [But there is no “clearly defined buffer” and the buffer is not “owned or controlled” by man X, man Y and/or CASACIR]
Guidelines for Extractive Industries – Determining suitable Buffers between Extractive Industry and Sensitive Land Uses (DPI) “3.2.1 Provision for buffer areas between new extractive industries and sensitive land uses should be determined on the following principles: *Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit. 4.1 Proposed Extractive Industry Sites – … the buffer is to be owned or controlled by the Work Authority holder for a new quarry.” [But there is no “clearly defined buffer” and the buffer is not “owned or controlled” by man X, man Y and/or CASACIR]
Authorities’ statements
Email from Anne Bignell (17th March 2008) clarifying buffers [emphasis mine] “The buffer is considered to be the area between the proposed extraction limit to the point at which performance standards appropriate to the adjoining sensitive land use are attainable and are as required by the various statutory authorities. WA1347 proposal is that this criteria is met at the WA boundary or within. This should not to be misconstrued as the proposal claiming the Boundary Setback as the buffer. The proposed buffers are controlled and owned by the proponent.” [This was a grossly misleading statement as: (1) Anne contradicted herself, (2) it was stated in spite of the fact that it had been fully articulated in man X, man Y and CASACIR’s own documentation that they intended to try to meet the performance standards at the dwellings on other people’s land, owned and controlled by those people and not owned or controlled by man X, man Y and CASACIR, (3) Anne did not require compliance with her own statement.]
Council
Council ignored the fact that the 2008 tribunal members stated many times that the performance standards have to be met at the “site” boundaries of the land owned and controlled by the quarry (again as set by clause 14.03-2 of the planning scheme). Peter McWhinney refused (in spite of a number of requests from me) to even require a plan showing a “clearly defined buffer” andfailed to require man X, man Y and/or CASACIR to “own or control” the buffer.
As a response to questions at the council meeting question time (24th April 2007), council answered as follows [emphasis mine]: “The application referred to in the question (PLA0010/07) is an application to operate a quarry at Pearce Road, Neerim North. The buffer around the proposed quarry site is a buffer zone referred to in various policy documents and guidelines in relation to quarries. Failure of the applicant to control all of the land contained within these buffer zones does not act as an estoppel on council processing the planning permit application. It does highlight the need to protect the amenity of sensitive in the vicinity of the proposed quarry site by ensuring an adequate buffer. The 500m buffer is established as the policy standard. It is necessary for [man X, man Y and/or CASACIR], if a lesser buffer distance is proposed, to demonstrate that this lesser distance will achieve the level of protection of amenity needed as recognised by the standard. Council must still consider the planning permit application and this forms a critical part of the decision. [Man X, man Y and CASACIR] will be fully aware of having to satisfy the relevant authorities on this issue” [but then council failed to ensure that the quarry would “protect the amenity” and failed to ensure that the quarry had “demonstrate[d] that this lesser distance will achieve the level of protection of amenity needed as recognised by the standard” – because it did not achieve it]
In the report for the Council meeting held 24th January for PLA0363/06 (the re-hearing of the application for our dwelling), council itself quoted the EPA 500m recommended buffer distance for hard rock quarrying with blasting. It seems that if someone wants to build within the 500m all sorts of barriers are imposed on the person wanting to build, but a quarry can have very noisy, dusty and dangerous works and operations well within that 500m buffer with very little in the way of requirements or restrictions and certainly no repercussions, and if those requirements or restrictions are not met, well, that it doesn’t really matter to anyone in authority.
Peter McWhinney’s (council planning officer) comments in the 11 June report [emphasis mine]
Section 4: “…a dwelling was approved on an adjoining property within the EPA recommended attenuation buffer to the proposed quarry and DPI decided that the Work Plan should be reviewed accordingly and effectively suspended the planning process.” [this is a very interesting comment because (1) there was no quarry for the dwelling to be in the buffer zone of, (2) the dwelling application was in at council before the quarry application was even in at DPI (and months before it went to council), and (3) at the time of the quarry application to DPI, DPI, council and CASACIR all knew that there was a dwelling already in the shed and which was closer to the proposed quarry than the new proposed dwelling, (4) the work plan was not “reviewed” because of that dwelling but because of just some of the plethora of errors in the work plan (and the work plan was actually “unendorsed”, not “reviewed – it was, apparently, the very first work plan to ever be unendorsed in Victoria – according to DPI – causing man X, man Y and CASACIR to go back almost to square one with a new work plan!)]
Section 6 “Clause 52.09 of the Particular provisions in the scheme addresses extractive industry and extractive industry interest areas with the purpose of ensuring that the use and development of land for extractive industry does not affect the environment or amenity of the area during or after extraction, that excavated areas can be appropriately rehabilitated and that sand and stone resources, which may be required by the community for future use, are protected from inappropriate development. The provisions include a requirement designed to maintain a buffer setback of 20 metres around the boundary of the land, which may however be used for driveways, drains, bund walls or landscaping. It requires screen planting, provision of car parking to serve the use and in addition to the decision guidelines of Clause 65 of the scheme requires the council to consider: … *The ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject land in accordance with the Regulations associated with the Extractive Industries Development Act 1995 and other relevant regulations. *The effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area…. *Any proposed provisions, conditions or requirements in a ‘Work Authority’ to be issued under the Extractive Industries Development Act 1995.” [but the requirements were not met]
Section 8 “State Planning Policies – Clause [14.03-2] of the State Planning Policy Framework (SPPF) … the objective of which is: To identify and protect stone resources accessible to major markets and to provide a consistent planning approval process for extraction in accordance with acceptable environmental standards. The provisions seek co-ordination of relevant legislation in dealing with an extractive industry proposal and specifically focus on provision of buffers from such industry to sensitive receptors in a manner directly pertinent to the main issue with this application. Provision for buffer areas between new extractive industries and sensitive land uses should be determined on the following principles: *Clearly defined buffer areas appropriate to the nature of the proposed extractive uses, which are to be owned or controlled by the proponent of an extractive industry, are specified in an application for permit. *Performance standards for the buffer area are set in accordance with requirements of the Extractive Industries Development Regulations 1996 or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry. *Activities within land zoned for public use may be taken into consideration in determining the buffer areas. Provision for buffer areas between existing extractive industries and sensitive land uses should be determined on the following principles: *The buffer areas are determined so that appropriate limits on effects can be met at the sensitive locations using practical and readily available technology. *The required buffers are taken into consideration if a change of land use in the vicinity of the extractive industry is proposed. *Land within the buffer areas may be used for purposes that are not adversely affected by the extractive industry.… The SPPF also includes other policies relevant to consideration of the application. This is mainly in the environmental area with policies on noise abatement to protect sensitive land uses, air quality and water quality protection and protection of catchments, waterways and groundwater. The SPPF also has some overall guiding principles which are relevant to this consideration. Planning is to contribute to the protection of air, land and water quality and the conservation of natural ecosystems, resources, energy and cultural heritage. In particular, planning should: *Adopt a best practice environmental management and risk management approach which aims to avoid or minimise environmental degradation and hazards. *Prevent environmental problems created by siting incompatible land uses close together. *Help to protect the health of ecological systems and the biodiversity they support (including ecosystems, habitats, species and genetic diversity)… .” [even though Peter did, himself, point out the legal demand for it, there was no “clearly defined buffer” and the buffer was not “owned or controlled” by man X, man Y and/or CASACIR and hepersonally chose to allow man X, man Y and CASACIR to use the buffer requirements for “existing” quarries and not a “new” one – i.e. land owned and controlled by others].
Section “Deciding factors”: “The only specific quantitative tests of the use under the respective controls is the recommended buffer distance of 500 metres under the EPA’s SEPP and the minimum 20 metres setback. The applicant does not control (own) the land within the recommended buffer. The separation distances between where extraction will be occurring and sensitive receptors (dwellings on other land) are (according to the application) as follows: *140 Pearce Road approx 300 metres (s) [this is inaccurate – the correct distance from impacts was 160m!] *27 Palmer Road approx 330 metres (n) [this was inaccurate – the correct distance from impacts was 20m!] *140 Palmer Road [541 Neerim North Road] approx 350 metres (sw) [this is inaccurate – the correct distance from impacts was ~220m!!], *565 Neerim Nth Road approx 670 metres (sw) [this is inaccurate – the correct distance from impacts was ~420m!!], and *370 Neerim Nth Road approx 1000 metres (nw) [this is inaccurate – the correct distance from impacts was ~300m(!!)]. …. In terms of controlling its own buffer the proposal does not come close to the ideal proposing only a 20 metre setback along Neerim North Road and to the properties to the north. The failure to provide the recommended 500 metres buffer to dwellings on other properties is the most critical factor of appraisal before council in making a decision. All other matters being equal, if council does not believe that the environmental impacts upon neighbours at the significantly lesser buffer distances proposed can be minimised so as to reasonably equate to the effect at the full setback, the application should be refused. The applicant should have addressed this very issue [but didn’t]. The application has sought to do this by providing expert reports to demonstrate that the quarry as proposed will achieve the environmental standards set by authorities, particularly the EPA. Reports address the effects of blasting – air vibration, ground vibration, airblast and flyrock, and noise assessment. These assessments are done by modelling using recognised formulae to try to predict what the impact of the use would be having regard to known parameters of the application and recognised theory. Modelling is not a guarantee and cannot be taken as such [but he certainly appears to have accepted them as such]. It should represent a prediction made on the best available information by a scientific formula. For example wind data is taken from the closest meteorological station (Noojee & Noojee (Slivar)) but is not necessarily exactly the same as the micro-climate of the actual site. The noise impact assessment itself qualifies its predictions noting the “the quarry site and surrounds occupy complextopography, not amenable to simple noise prediction methods.” If the application is approved, the use proceeds and it is found that the modelling has been inaccurate the use will still have to meet the EPA and DPI requirements it has predicted it will meet and a difficult enforcement process can ensue. The system is not perfect but it is what is available [but Peter, in spite of not having been to the site for many months to determine the facts for himself, told the 2010 tribunal that there were no breaches in spite of over 200 pages of proofs to the contrary – thereby trying to make me out to be the liar]”.
Section “Negatives”: “Highlighting another of the objections received, Council will recognise the issue of neighbours ‘providing’ the buffer for some-one else from consideration of applications for broiler farms. It is understandable that the owner of the vacant land to the immediate north is concerned that the buffer requirements for the quarry will limit the potential to build a house if it would fall within the 500 metre buffer. The neighbour may or may not get approval for a dwelling anyway depending on the planning controls but this is an imposition on the property. Again as in the consideration of this application it is a ‘recommended” buffer distance and not a prohibition as evidence by the approval of the dwelling at 140 Pearce. A setback of less than 500 metres to a quarry does mean DPI has an involvement in any decision as would the quarry” [there are a number of interesting issues here: (1) Peter ignored the requirement under the planning scheme for the man X, man Y and CASACIR to “own or control” the buffer, (2) it was not just “the owner of the vacant land to the immediate north” who was concerned and upset, it was ourselves and many others too (there were 28 entities who officially objected to the quarry application), (3) Peter proved that he assessed our real application (in to council well before the quarry application) against a potential quarry application!]
Section “Positives”: “Referring back to the decision guidelines of Clause 52.09 the following comments are made in light of the information available… *The ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject – land in accordance with the Regulations associated with the Extractive Industries Development Act 1995 and other relevant regulations. Significant reduction in recommended buffer distances proposed. Expert reports provided as part of the application concluding environmental standards in terms of impact on sensitive receptors met in some cases with requirements. DPI and EPA largely no objection. Available supportive evidence largely based upon modelling leaving some scope for doubt. Issue. *The effect of vehicular traffic, noise, blasting, dust and vibration on the amenity of the surrounding area. Same as above. Issue.” [Even though Peter, himself, pointed out that there were “issues”, these issues were largely ignored – because he ignored the proofs provided and told the tribunal that there were no breaches worthy of orders]: Section 12 “Conclusion”: “… Deciding the application appears to come down to there being residences within the 500 metre recommended buffer under the EPA guidelines and down to 250 metres [he has failed to take the definition for buffers into account, and has ignored the requirements for the protection and enhancement of amenity]. All referral authorities have not objected with both the DPI and EPA specifically having to focus on this circumstance [but he has ignored the requirements of the planning scheme]. By this is can be considered that it is believed that the environmental/amenity impacts on residents on surrounding properties can be ameliorated to meet EPA and DPI guidelines for noise, dust, flyrock, vibration etc and, presumably, to the extent that if the guidelines are breached action can be taken to bring these effects into compliance with the guidelines. The scenario of allowing the quarry to set up and then to have to close it down because it can’t comply is almost as untenable as allowing it to continue to breach the guidelines and unreasonably impact upon residents’ amenity because it can’t comply after having allowed it…. The use of modelling is flawed and the results would be expected not to be exactly reflected by reality but a conservative margin is generally built in and it is the best tool available. It would be far more comfortable recommending support for the proposal if better guarantees on the quarry’s environmental efficacy could be given. The plethora of errors and inconsistencies in the various reports forming the application pointed to by the objectors seems overwhelming …[but these “The plethora of errors and inconsistencies” have been ignored] Again for measuring buffer distances under AQ2/86 air emissions it is emphatically cited that the applicant’s measurements are wrong because the measurements to a sensitive receptor must be to the property boundary under the guideline. This is correct in an urban area but the guidelines clearly state “except in the case of an isolated house in a non-residential zone where the house itself would be the measuring point”, and “Council does not have a clear choice before it. First it has an application for a quarry seeking to reduce the accepted buffer separation distance by roughly half [far less than half, and it was not defined or owned or controlled by CASACIR]. The application is confident that the development and use can be carried out with these reduced buffers without undue detriment being caused to neighbours as compliance with noise, dust, blasting and other standards will be met [based on what Peter, himself, says is “flawed modeling”]. The objections emphatically reject this and point to the errors and inconsistencies in the application as evidence that the technical basis of the application is seriously flawed and the proposal should be rejected. Referral authorities with the technical expertise on the issues of the environmental effect of quarry operations have not objected to the application. On these technical issues council should rely on the advice of these authorities. This is the basis of the referrals system. Council should commence consideration of the application with caution given the buffer reduction sought. Where sufficient doubt exists, Council can employ the precautionary principle and refuse the application. However, in the officer’s opinion, given the analysis above, it is not considered that the circumstances are such that the precautionary principle should be applied. Allowing a quarry to be developed when there are houses to half the recommended buffer distance is a worry and seems anomalous but the flexibility is there provided the council is satisfied that the residential amenity will still meet the guidelines…” [based on what Peter, himself, said was “flawed modeling” and he, himself, stated that there would be “significant long term detrimental impacts” and he predominantly ignored the planning scheme requirements of which he had charge of compliance]
EPA [Excerpts from Peter McWhinney (council) 11 June report] [emphasis mine]: (section 8: “Environment Protection Authority): “The EPA is the state government authority responsible for ensuring that the environmental effects of land use meet accepted standards, including the environmental impact on surrounding land uses. The EPA administers various environmental controls to this effect including the State Environmental Protection Policies (SEPPs) which includes: *Recommended Buffer Distances for Industrial Residual Air Emissions AQ 2/86; *Draft Protocol for Environmental Management: Mining and Extractive Industry; *And Control of Noise from Commerce, Industry and Trade N-1 & N3 Interim Guidelines for control of noise from industry in country Victoria. … The SEPP provides a recommended buffer distance to a sensitive receptor from hard rock quarrying with blasting of 500 metres”. Section “responses”): “EPA19/7/2007… *Note the presence of a permit for a dwelling approximately 300m from the proposed rock extraction area and that this may raise a number of issues regarding buffer distances. EPA Buffer Guidelines recommend a buffer distance of 500m from hard rock quarrying operations with blasting. *Note that the above is a recommendation only and council can consider an application with a reduced buffer taking into consideration what measures are to be taken by the applicant to reduce offsite impacts. The applicant needs to demonstrateto council that the risk of adverse amenity impact from noise, dust etc will be minimal and will meet the standards of the 500m recommended buffer. *Note that the application does not and should refer to the Draft Protocol for Environmental Management for Mining and Extractive Industries.” [But there was no proof “that the risk of adverse amenity impact from noise, dust etc will be minimal and will meet the standards of the 500m recommended buffer” and in fact, it was quite the reverse, as Peter himself said it would be. It also contradicts the requirements of the planning scheme which states [emphasis mine] that “amenity is not reduced” (which it was), that, in fact, there be “the protection and improvement” of amenity (which there wasn’t), and that there be provided a “clearly defined buffer” (which there wasn’t) that is “owned or controlled by the proponent of an extractive industry” (which it wasn’t)].
All buffer separation distances should be based on the Victorian EPA AQ 2/86 publication “Recommended Buffer Distances for Industrial Residual Air Emissions” [emphasis mine]: “The separation buffer distance guidelines are intended for all the accidental releases from processes, which must be both anticipated and allowed for. The buffer separation distances are applicable from the emission source i.e. machinery, equipment, vehicles, stockpiles or discharge stacks (etc) to a receptive receptor (e.g. sensitive site). The buffer separation distance guideline of 500m is recommended by the Victorian EPA for dust emissions from extractive industries quarrying hard rock with blasting. From the EPA’s perspective, recommended buffer separation distances are to protect against unintended or accidental emissions, not day to day emissions during normal operations. The recommended separation buffer distances are not an alternative to source control. The recommended separation buffer distances are distances at which emissions from unintended conditions can disperse so as not to impact on any nearby sensitive uses” – these “unintended” conditions have not been assessed or taken into consideration with regard to the quarry at any stage.
VCAT – Ability to meet performance standards at boundary[1] [emphasis mine] from the 2008 hearing Order Reasons: “41 Particular provisions with respect to quarrying are contained in Clause 52.09. The clause requires a buffer setback of active quarrying of 20 metres from the boundaries of the land, and consideration of the following:…; *the ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject land in accordance with the Regulations associated with the Extractive Industries Development Act 1995 and other relevant regulations;…. ” [the “resultant industrial emissions” were not contained “within the boundaries of the subject land” – disregarding the 2008 tribunal]. “63 The performance standards contained within the Extractive Industries Development Regulations 1996 require the buffer to be performance based and within the boundaries of land owned and controlled by the work authority holder. The performance standards to be met include: (a) the EPA’s Interim Guidelines for Control of Noise from Industry in Country Victoria N3/89; (b) a 24 average particle concentration of 60mg/m3 for particles less than 10 microns PM and 36mg/m3 for particles less than 2.5 microns PM 2.5; (c) annual average concentration of respirable crystalline silica of 3mg/m as PM2.5; (d) a dust standard of four grams per square metre per month at the nearest residence; (e) airblast standard of 115 db(A) for 95 percent of all blasts; and (f) a ground vibration standard of 5mm per second peak particle velocity, again for 95 percent of all blasts, and (g) flyrock.” [Note: the noise was above often the limits; there were no background levels to ascertain if they were using increased dust levels i.e. above that allowed (and I contend that they were); they were over the limit for vibration (and had been subject to a 110 Notice from DPI as a result); their documents proved that they intend to have flyrock zones on land not owned and controlled by them which is not lawful – and disregarding the 2008 tribunal, again]. “64 Clause 52.09 on Extractive Industries and Extractive Industry Interest Areas, contains a number of matters which need to be considered (which we set out in paragraph 41). These include the ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the land in accordance with the regulations associated with the Extractive Industries Development Act 1995 and other relevant regulations” [the “resultant industrial emissions” were not been contained “within the boundaries of the subject land” – disregarding the 2008 tribunal, again]. “69 It is our view that the appropriate requirement to be placed on the quarry with respect to environmental impact is the meeting of specific performance standards at the boundaries of the land. …” [but man X, man Y and CASACIR did not meet the “specific performance standards at the boundaries of the land”, and their own documentation proves that they did not intend to meet the “specific performance standards at the boundaries of the land”! – disregarding the 2008 tribunal, again – and that was in spite of their deliberately misleading subsequent claim to the Supreme Court “Casacir [and therefore man X and man Y] has intended (and continues to intend) to meet its performance standards for the Casacir quarry land and the Casacir quarry operation” – note that they do not say they intended to meet the performance standards requirements on land owned or controlled by them, or even at the boundaries of the site!]. “71 … In … determining whether or not to issue a permit we need to be certain that the required performance standards can be met at the boundaries of the site and if increased activity on the site resulted in these standards being breached then such activity would be prohibited[2]]” [but man X, man Y and CASACIR did not meet the “performance standards” at the “at the boundaries of the site” [nor even at our dwelling, and probably not at others as well], and their documentation shows that they did not even intend to try to meet the “performance standards” at the “at the boundaries of the site”! – disregarding the 2008 tribunal, again. Further, based on this comment alone, the permit for the quarry should be cancelled]. “134 The PEM sets a standard of 4/g/m²/month, and no more than 2/g/m²/month above background, at the boundary for the site” [but they failed to take background measurements and used the maximum levels (which include the allowance for other sources) and even the increased dust levels were not met “at the boundary for the site” resulting in a 110 Notice against them – disregarding the 2008 tribunal, again]. “138 The issue that then remains is whether the operations on the site can meet the required standards at the site boundary. It was Dr Bellair’s evidence based on his experience with quarries in other locations that subject to good management, the standards could be met. The management measures put forward by Dr Bellair included having regard to forecast weather conditions, limiting vehicle speeds on site and deferring operations or increasing water application rates if hot, windy conditions were forecast. It was further his view that good management included forming good relationships with neighbours and responding to any complaints” [but they failed to take background measurements and were using the maximum levels (which include the allowance for other sources) and even the increased dust levels were not being met “, at the site boundary” resulting in a 110 Notice against them – disregarding the 2008 tribunal, again. Further, far from trying to “meet the required standards at the site boundary” CASACIR have actively resisted any such “good relationship” with us]. “159 …The Tribunal is satisfied that the required performance measures can be met at the boundaries of the site ...” [but the performance standards were not being “be met at the boundaries of the site” – disregarding the 2008 tribunal, yet again].
Man X, man Y and CASACIR’s own documentation [emphasis mine]
Their own documentation makes it very clear that man X, man Y and CASACIR intended to break the law by not even intending to use the requirements of planning scheme’s demands on buffers: they did not provide a “clearly defined buffer plan” and certainly did not “own or control” the full buffer (to the point at which the performance standards are met), and had no intention of doing so because they were using the requirements for “existing” quarries.
Their first work plan stated: “4.3 Buffers – A 40 metre buffer will be maintained along the western property boundary and a 20 metre buffer on all other boundaries” [they considered a 20m or 40m “buffer” to be sufficient when the performance standards were going to be, in some cases, hundreds of metres onto land owned and controlled by others!] “7.1 … The nearest sensitive receptor is 140m from the southern boundary” [they thereby identified that the land to the south of Pearce Road was not part of the buffer and that we already had a dwelling (in the shed) and that we were only 140m way from the closest point of impact!!!].
Their second work plan (submitted to the 2008 tribunal) stated: “4.3 Buffers – There is a minimum buffer of 20 metresbetween the work authority and the extraction edge” [they were, again, saying that the performance standards could be met at the WA boundary, but their own specialists said they can’t be met there and would not be met there, and said that the performance standards would be met at the dwellings (which is the requirement for “existing quarries” not “new” ones)!]
Their second version of the planning report (submitted to the 2008 tribunal and subsequently endorsed as part of the planning permit) stated: “2.1 The Site and Surrounds – …Pearce Road forms the southern boundary” [they did, again, clarify that the land between Pearce Road and the common boundary is not part of the buffer, but they were using it and some of our land for the buffer, regardless]. “3.5 Buffer Areas, Screening And Fencing – When designing the working plans for the proposed quarry particular attention was given to the provision of buffer area between the extraction area and property boundaries. The areas set aside for buffers can be seen on Figure 5 – Development Plan (Appendix 12). This plan shows that a 20 metre bufferwill be provided between the rock extraction area and the western boundary of the WA area. A minimum buffer of 20 metres will be maintained to the southern boundary and the northern boundary of the WA area. A minimum buffer of 175 metres will be maintained to the eastern boundary of the WA area” [they said that the performance standards could be met at the WA boundary, but their own specialists said they couldn’t be met there, and said that they would be met at the dwellings on land owned and controlled by others (which is the requirement for “existing” quarries not “new” ones)! But the performance stands were not always met even there.]
Their third work plan stated: “4.3 Buffers – There is a minimum buffer of 20 metres between the work authority and the extraction edge” [they obviously consider this sufficient in spite of the performance standards being met well past that 20m, on land owned and controlled by others].
Reports submitted to VCAT in 2008 with man X, man Y and CASACIR’s approval
“5.1 Location And Area Of Extraction – The nearest neighbouring dwelling is at 140 Pearce Road. This is approximately 160 metres south of the WA area boundary and approximately 300 metres to the south of the nearest location of rock extraction and the proposed processing plant location. For most of the quarry life, the extraction activities will be located at greater distances from these dwellings” [they ignored the fact that it is not necessarily where the rock is extracted from, but it is the location of all the sources of the emissions that is even more important.]
Bellair report: “1.3 The closest sensitive land use is a recently-constructed dwelling at 140 Pearce Road, approximately 300 m south of the proposed rock extraction area (as defined in the endorsed Work Plan, and a similar distance from the proposed crushing/screening plant). Other dwellings are located at: • 370 Neerim Road North Road (some 1,000 m northwest of the rock extraction area)…. 10. It should be noted that: • the nearest residence is located 300 m to the east of the Tootal Road crushing plant (similar to the distance between the proposed plant and the Pearce Road dwelling).” [they ignored the fact that it is not where the rock is extracted from, but it is the location of all the sources of the emissions that is even more important. Further, they misled the tribunal and the authorities because “370 Neerim Road North Road” is in fact not [emphasis mine] “some 1,000 m northwest of the rock extraction area” but is approximately 300 metres from the closest point of emission and the excavations in stage 4].
Kraan witness statement: “4.4 The areas set aside for buffers can be seen on Figure 5 – Development Plan (Appendix 12). This plan shows that a 20 metre buffer will be provided between the rock extraction area and the western boundary of the WA area. A minimum buffer of 20 metres will be maintained to the southern boundary and the northern boundary of the WA area. A minimum buffer of 175 metres will be maintained to the eastern boundary of the WA area. The rock extraction area will maintain substantial setbacks from sensitive uses in the locality, namely the dwellings described in 2.2. * 140 Pearce Road – a new dwelling has been constructed approximately 300 metres to the south of the nearest location of rock extraction and the proposed processing plant location; * 370 Neerim North Road – located some 1,000 metres to the north west of the nearest location of rock extraction” [they ignored the fact that it is not necessarily where the rock is extracted from, but it is the location of all the sources of the emissions that is even more important. Further, they misled the tribunal and the authorities because “370 Neerim Road North Road” is in fact not [emphasis mine] “some 1,000 m northwest of the rock extraction area” but is approximately 300 metres from the closest point of emission and the excavations in stage 4]. “5.1 As discussed below, the site can be visually screened from outside views via the existing topography and the use of earthen bunds and landscape plantings. It is a substantial distance from any residential areas and the operational areas are sufficiently setback from the nearest sensitive land uses to enable potential impacts to be mitigated. The nearest neighbouring dwelling is at 140 Pearce Road. This is approximately 160 metres south of the WA area boundary and approximately 300 metres to the south of the nearest location of rock extraction and the proposed processing plant location. The next closest dwellings are located at 27 Palmer Road, some 330 metres to the north of the nearest location of rock extraction (in Stage 2) and 541 Neerim North Road, approximately 350 metres to the south west of the nearest rock extraction location (in Stage 4) For most of the quarry life, the extraction activities will be located at greater distances from these dwellings” [they “forgot” that 370 Neerim North Road is approximately 300m from the rock extraction area – not the 1,000m claimed by them, and other distances were also false and misleading]. “5.2: Sight Line 3: This sight line is taken from near the location of the dwelling at 140 Pearce Road, to the south of the proposed quarry. It shows that once the bunding is established, it will not be possible to see the extraction area of the quarry during any of the stages of the quarry” “6.1.3 The site is located a considerable distance from established residential areas and is in my opinion appropriately buffered from the nearest sensitive uses … On the basis of the evidence that has been presented by the various expert witnesses, I believe that appropriate limits on off-site effects can be met at the neighbouring sensitive locations using practical and readily available technology.” [therefore it cannot be considered that the “site” includes the land to the south of Pearce Road]. “7: Buffers are used as a means to minimise the likelihood of a land use which has the potential to generate off-site impacts, negatively impacting on “sensitive” land uses such as residential dwellings. In the instance of hard rock quarrying, buffers are used to protect sensitive uses from potential impacts of dust, noise and blasting vibration. A prescriptive buffer distance between a sensitive use and a use that has the potential to generate off-site impacts does not by itself provide any surety that the sensitive use will not suffer any detrimental impacts. The only viable way to ensure this is by appropriately controlling the potential impact generating activities at the source to the extent that ensures that any impacts at the sensitive use are limited to the performance levels set by the relevant regulatory framework. While it is desirable for quarry operators to own or control the land within a buffer, it is not mandatory. What is important is the compliance with the regulatory performance criteria at the sensitive uses. In regard to the appropriateness of buffers in this matter, I rely on the evidence of Dr Bellair in relation to air quality, Mr Goddard in relation to noise and Mr Moore in relation ground vibration, airblast and flyrock” [they were clearly using the requirements for an “existing” quarry and totally ignoring the requirements for a “new” quarry, of which this is one. Further, Kraan, the author of the report, is a planning specialist and therefore knew, or should have known, the planning scheme requirements for a “new” quarry, but disregarded them].
When I was cross-examining man X, it was put to me by him at the Supreme Court, under oath, that I was trying to impact the buffers by building our house were it was built. The truth is that: (1) if man X, man Y and CASACIR were really meeting the performance standards within the site boundary, as claimed, or even on land it owned or controlled, then it did not matter where we built on our property, and (2) man X, man Y and CASACIR did not provide any evidence that they cared anything at all about whose land they actually used for a buffer – quite the contrary, they proved by their actions that they didn’t care.
[1] See the page on the site boundaries
[2] They provided a footnote: “eg inability to achieve EPA’s N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria”