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.
Environmental Science Associates (ESA), through the work of Terry Bellair, had the oversight of the Neerim North Quarry in relation to air quality and dust. Confirming this, man X, man Y and CASACIR unequivocally said in 2011 that “since 2008 it has engaged a leading environmental expert, Dr Terry Bellair, to undertake ongoing dust and air monitoring at the Casacir quarry land”[1]. As further confirmation of the truth of this claim, evaluations, reports and witness statements prepared by Bellair were known to be provided in relation to the Neerim North quarry in at least 2008 and 2010.
Timothy Pollock of GHD has significant expertise in dust dispersion: “I have specialises ion dust impact dispersion modelling and air environments, the latter for the last 15 years. In the last 145 years I have conducted many dust impact assessments on industrial proceedings and have conducted such assessments for a range of industrial developments with potential off-site impact”. He was engaged for the 2010 enforcement tribunal hearing against man X, man Y and CASACIR because, for some reason, Bellair either could not, or chose not to, represent man X, man Y and CASACIR. Pollock stated that his instructions were to (only) deal with the dust deposition gauge results: “I received instructions from Focus CDs [sic], acting for Casacir Pty Ltd to conduct a review of the dust deposition data collected at two stations located north and south of the Neerim North quarry, to make an assessment of compliance to the Mining and Extractive Industries PEM, and to prepare a witness statement relating to that review and assessment” (and therefore man X, man Y and CASACIR, and FocusCDS on their behalf as their planner, effectively instructed Pollock to not deal with the real-time unit and the fact that it had no logger for a considerable time, the unit was installed many months later than was required, and it was not working for much of the first few years it was installed – if it is working properly even yet)[2].
Bellair’s experience
Bellair admitted that he had extensive knowledge in the general environmental consultancy area, not just the air quality arena. He stated that, inter alia: “I have worked as a full-time environmental science consultant since 1973. Over this period I have has played a key role in numerous assignments related to water and air quality management, pollution control, disposal of municipal and industrial wastes, environmental impact assessment, environmental audits, salinity control and the development of environmental policies. These projects have been carried out in all States and Territories of Australia, and in the USA, New Zealand, Thailand, Fiji and Kiribati”[3], “Since serving as Project Manager of the consultant team which prepared the Victorian EPA’s original SEPP (Air Quality) between 1979 and 1981, I have been involved in numerous air quality and odour investigations associated with a wide range of municipal and industrial sources (including quarries and mines). Many of these investigations have included assessments of particulate emissions and buffer distance requirements between potential dust sources and sensitive land uses”[4], “Dr Bellair was a founding committee member of both the Victorian Chapter of the Environment Institute of Australia and the Victorian Planning and Environmental Law Association. He has been appointed by the Victorian Government to conduct over 30 hearings into controversial environmental and planning issues. He has served as a member of the Victorian Mineral Water Advisory Committee and on the board of the North Central Catchment Management Authority”[5],“[He was] Project Manager for the preparation of the original State Environment Protection Policy (the air Environment) for the Victorian EPA. This was the first air quality management policy to come into effect in Australia (in 1981)”[6], “Retained by the Tasmanian Environment Protection Policy Review Panel in 2002 to assist in the Panel’s review of the Draft Environment Protection Policy (Air Quality)”[7], and “[He performed] investigation and evaluation of control options for atmospheric emissions (including odours and dust) from a wide variety of sources including power stations, paper pulp mills, refineries, petrochemical plants, food processing plants, abattoirs, by-products plants, piggeries, feedlots, poultry farms, cement plants, dye works, printing works, brick works, ferrous and non-ferrous foundries, scrap metal recyclers, wastewater treatment and disposal systems, landfills, medical waste incinerators, mushroom composting operations, mineral sands separation plants, a range of chemical plants, and construction and demolition waste recycling facilities”[8]. In summary, Bellair admits he has had extensive experience across many industries, with a variety of local and state government agencies, as well as with many private companies[9]– therefore it can be assumed that he knew what he was doing when he did what he did and didn’t do what he didn’t do.
Legislation
The planning scheme at 52.09 states, inter alia, that one of the decision factors in allowing a quarry to commence (and continue) is regarding “The ability of the extractive industry operation to contain any resultant industrial emissions within the boundaries of the subject land[10] in accordance with the Regulations associated with the Extractive Industries Development Act 1995[[11]]and other relevant regulations”.
Dust emissions are required to be measured at the site boundary in accordance with AS3580 Methods for Sampling and Analysis of Ambient Air Section 10.1.8.1.
One of the further legislative documents that made legal demands on air quality, was the State Environment Protection Policy (Air Quality Management)(the SEPP (AQM)). This included its incorporated document, the Protocol for Environment Management Mining and Extractive Industries(Mining PEM). This Mining PEM “supports the interpretation of SEPP (AQM) and sets out the statutory requirements for the management of emissions to the air environment arising from activities undertaken in the operation of mining and extractives sites. Best Practice is the main guiding principle in controlling air emissions and meeting the requirements of this PEM. This is a requirement of SEPP (AQM) and is not an additional requirement of this PEM. …The PEM has been developed in consultation with Government agencies and key stakeholders. It is important that this PEM be read in conjunction with the SEPP (AQM) and other relevant Protocols or Guidelines for Environmental Management. In addition it should be noted that the Department of Primary Industries (DPI) regulates the mining and extractive industries under the Mineral Resources Development Act 1990 and Extractive Industries Development Act 1995[12].This PEM will be used by DPI as a guide in the management of air quality impacts by mines and quarries. This PEM sets out the requirements for assessment and management of emissions to the air environment from the mining and extractive industries. It is intended to be applicable to both new developments and where significant modification or expansion of existing developments occurs. All mining and extractive industries have a requirement to comply with SEPP (AQM). … DPI are likely to request an air quality assessment only when activities that are likely to generate increased emissions of the indicators specified in this PEM or will have significantly increased impact at sensitive locations. … Applicants for an Extractive Industry Work Authority or Mining Licence from DPI may be required to conduct an air quality assessment depending of the size and location of the proposed operation and the type of activity proposed”[13]. Given that Bellair had a leading role in an associated SEPP (the air quality) document, and admitted extensive experience in the industry, he would have been fully aware of the contents and legal demands of the SEPP (AQM) and the Mining PEM.
Bellair stated that the Mining PEM does not require an assessment: “Section 1.1 of the PEM notes that:“An air quality assessment in accordance with this PEM is required only for proposals requiring an Environment Effects Statement or an EPA Works Approval and Licence or where specifically required by DPI”.None of [these] requirements are met for the proposed quarry”. But the PEM also states: “Applicants for an Extractive Industry Work Authority or Mining Licence from DPI may be required to conduct an air quality assessment depending of the size and location of the proposed operation and the type of activity proposed”[14]– but he chose to ignore this, as did DPI.
Bellair stated [emphasis mine]: “Emissions from the quarry are required to comply with SEPP(AQM) and thus with the criteria set out in Table 2 of the PEM at the nearest sensitive location… The PEM also notes that “deposited dust is an indicator of the effectiveness of site management practices and the potential for off-site nuisance” and that “the results of [dustfall] monitoring should not exceed 4/g/m2/month (no more than 2/g/ m2/month above background) as a monthly average”[15]” – this is more than a bit difficult to achieve given that Bellair himself stated (in my opinion, against the facts) that an assessment to discover the background was entirely unnecessary; as quoted earlier: “The proposal does not require an assessment under the provisions of EPA’s Protocol for Environmental Management – Mining and Extractive Industry (PEM)”[16].
Bellair also noted that the Mining PEM was now no longer a draft and was in force [citation removed]: “The Protocol for Environmental Management for Mining and Extractive Industry(the PEM) is an incorporated document of the SEPP(AQM) and came into effect in December 2007. The PEM sets out the requirements for assessment and management of emissions from the mining and extractive industries”[17]and “Legislative Framework – This section lists the relevant legislation and policies; however it should be amended to reflect that fact that the PEM is now in force and the nuisance dust criterion is to be assessed over a monthly averaging period (the PEM notes that if this criterion is exceeded management actions can be identified and implemented to reduce dust levels)”[18].
The importance of the PEM was confirmed by the 2008 tribunal members: “The PEM also notes that: Deposited dust is an indicator of effectiveness of site management practices and the potential for off-site nuisance and notes that deposited dust should be monitored at the site boundary for most operations”[19], and “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”[20].
Additionally, the planning scheme demands that the air quality be protected and, where possible, actually be improved, not decreased as Bellair allowed.
It appears to me that Bellair ignored the legal demand that the quarry was required to meet the requirements at the site boundary, not beyond it (i.e. the emissions are to be kept within the property boundaries). In fact, the planning scheme stated [emphasis mine]: “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[[21]]and other relevant regulations”[22], and the 2008 tribunal members stated in their reasons that [emphasis mine]: “The issue that then remains is whether the operations on the site can meet the required standards at the site boundary”[23]and [emphasis mine] “In any event 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”[24]. Clearly Bellair convinced the tribunal members that the dust would be met at the coundary, when, in my honest opinion, he knew it would not happen (as we’ll see as we move through the following issues: “It was Dr Bellair’s evidence [that] the standards could be met”[25].
Permit requirements
Man X, man Y and CASACIR’s planning permit[26]stated that “Dust generated by quarrying operation will be controlled to ensure that dust emissions do not pose a risk to the health and amenity of local residents and so do not jeopardise the beneficial uses of the environment in accordance with State Environment Protection Policy (Air Quality Management) (SEPP(AQM), including the Protocol for Environment Management Mining and Extractive Industries (Mining PEM)”[27].
Bellair noted man X, man Y and CASACIR’s work authority conditions, including conditions 12.1-12.3: “Dust control measures must be in place to mimimize dust generation so that detriment to surrounding areas, residents or persons in and around the quarry is not caused. Dust resulting from all operations including extraction, loading, transport and stockpiling must be controlled by the use of appropriate water sprays, dust extraction or dust proof enclosures. Spray installations and extraction systems must be maintained in operable conditions at all times [and] Where required by an inspector, a water tanker of appropriate size must be maintained on-site in operable condition for the purposes of suppressing dust on internal roads and work areas as required”[28].
Bellair also noted man X, man Y and CASACIR’s permit conditions, including conditions 11 and 38 and 39: “Dust monitoring to be monitored in accordance with the dust management plan set out in Appendix 10of Volume 2 of the submission in support of the Permit application. Any failure to meet SEPP (AQM) standards must be notified to EPA and any works/actions specified by EPA must be carried out to Council’s satisfaction. … Operations must at all times be conducted in accordance with the Work Authority, including the approved Work Plan”. The work authority stated that “The Work Authority holder must prevent a dust release that causes adverse impacts to the surrounding area and residents”[29], and the work plan stated “Dust is controlled in and around the plant by se of water sprays. Typically water sprays operate in the plant on screens, crushers, internal direction change points and conveyor discharge points. Dust is also controlled using the water cart around the stockpiled and ground bins. Roads and stripping areas will [sic] watered to control dust. A dust management plan developed for the site details site specific procedures for monitoring and controlling dust. If required dust emissions will be measured at the site boundary in accordance with AS3580 Methods for Sampling and Analysis of Ambient Air Section 10.1.8.1”[30], and “Erect and monitor weather monitoring station, real time aerosol monitoring, dust deposition gauges, activate contingency plans as required by conditions, Quarry Mgr to review monitoring data”[31].
In spite of these conditions being repeatedly ignored (there were no sprays for a number of months, there was dust exiting the site in significant amount on frequent occasions, dust missed the monitors and impacted and decreased the amenity of neighbours, and the air quality decreased – but it is my honest opinion that, based on what did and did not happen, Bellair did not appear to take issue with it.
Meaning of extraction
For the purposes of the PEM, “extraction” means [emphasis mine] “the amount ofsoil and rockthat is moved or extracted per year”[32].
Also for the purposes of confirmation that overburden is classified as a material that must be taken into consideration in relation quarrying operations, Watson Moss Growcott prepared and submitted as absolute fact, the “Boral Quarry, Montrose Proposed Extension Environmental Noise – Technical Report For Environment Effects Statement”. This document clearly identifies in section 4.2 that the removal of overburden is a quarrying activity [emphasis mine]: “In 2000 in a draft document “Noise from Industry in Regional Victoria”, the EPA provided more specific comment on which activities in a quarrying …. Overburden removal is nominated to be included in normal [quarrying] activities ….. Based on these considerations, the following classification of activities is proposed for this project: Normal [quarrying] criteria: *General quarrying *Overburden removal ”.
Knowledge of early impacts
ESA provided an air quality assessment in 2008 (a year prior to the quarry being granted a permit and work authority and commencing works). In that that air quality assessment it recognised and admitted its knowledge of what caused the most severe air quality impacts when it stated, and submitted to the tribunal as absolute fact: “The greatest potential for off-site dust emissions associated with the proposal will be during the initial (short-term) site establishment works, when topsoil and overburden will be removed to expose the basalt resource and the perimeter bunds are formed”[33], and “Experience with dust management at a range of extractive industry, mining and concrete recycling operations indicates that the main potential dust sources include: (1) crushing and screening operations; (2) the movement of trucks and loaders on unsealed roads and operational areas; and (3) topsoil and overburden stripping; and (4) suspension of dust from any bare, erodible surfaces by strong winds. Blasting generates short-term dust emissions and a visible plume”[34]. Along with that admitted knowledge, ESA was also fully aware that (1) the required real-time monitor was not installed for the first 4 months of these dustiest works and (2) was not working at all for the first 7 months of it actually being installed – i.e. it was not working for the first 11 months of the acknowledged dustiest and air pollutant times of the quarry works. Additionally, Pollock stated: “9.1 The operations in mines and quarries can cause particulate emissions from the crushing and screening of orebodies/rocks as well as from the traffic of haul trucks on unpaved roads. In addition, moderate to strong winds, dust emissions from erodible surface can also be significant. … On the assumption that a typical background deposition rate is 2g/m2/mth, the 4g/m2/mth criterion is effectively requiring that ‘signal’ from the quarry operations not to exceed 2g/m2/mth”[35].
Belair clearly convinced the 2008 tribunal: “It was Dr Bellair’s evidence that the greatest potential for dust emissions from the site was during the establishment works, in particular the removal of top soil and overburden and the construction of the perimeter bunds. Similar control measures to those already mentioned were suggested to reduce dust emissions during these activities together with the benefit of doing the works in the cooler months and minimising the extent of disturbance at any one time”[36], and “There is a potential for dust to arise from the storage of overburden on the site and the moving of this overburden around the site as the quarry progresses. The moving of overburden around the site, including using it to progressively rehabilitate the quarry as works progress, is a necessary side aspect of any quarry operation. We accept that the measures available for the control of dust, including not carrying out operations under certain weather conditions, equally apply to this procedure and that subject to conditions, including but not limited to the Dust Management Plan, there should be no negative impact associated with airborne dust or dust deposition on adjoining property”[37]– so it was clearly known by the industry, the tribunal, ESA and man X, man Y and CASACIR that dust was going to be a serious issue – yet ESA, as environmental and air quality oversight at the quarry, found no apparent issue with this gross failure.
ESA made the claim that “This assessment of the potential effects of the establishment and operational phases of the proposal is based on my experience with a number of broadly comparable operations and takes into account the fact that the quarry and surrounding properties are in a Farming Zone, where dust will be created from a number of sources and activities, including unpaved roads, cultivation for crops (such as potatoes) and pasture establishment/renovation, haymaking, the movement of livestock under dry weather conditions, and wind erosion”[38]. However ESA ignored the fact that, certainly around 140 Pearce Road (arguably the most affected property), there was only one admittedly very rarely traversed “unpaved road” close to us[39]; there was no haymaking close by, and even the haymaking that did occur was not close to us and was very infrequent – i.e. a few weeks once every few years. “[T]he movement of livestock under dry weather conditions” happenedvery infrequently and when it did occur, the cattle were moved through well grassed paddocks and not on the road.; there was no “cultivation for crops (such as potatoes) and pasture establishment/renovation” close by, and even when it did occur, it was very infrequent – a few weeks once every few years. There was no “wind erosion” as there was no bare land other than the quarry land that was stripped and laid bare, and the bunds which were not grassed or planted for many months, and the stockpiles which were not watered from many months (and then not as often as should be). The fact is that the only really dusty activity was from the quarry, yet, to all intents and purposes, ESA gave every appearance of having ignored the truth of that fact.
Resource amount removed
It was known prior to the commencement of man X, man Y and CASACIR’s quarry application, that they acknowledged that “[The] estimated annual production will be initially in the order of 100,000 tpa of spall, crushed rock and aggregate products. It is expected production will increase over time to approximately 400,000tpa”[40]. In fact, man X, man Y and CASACIR then reduced the proposed amount being removed would increase to 200,000 tonnes per annum (clearly it was changed (halved) to give the impression of a lesser impact, whereas the reality was larger than even the 400,000tpa). It was also identified that Stage 1 alone had “900,000t of moderately weathered to fresh basalt, approximately 85,000m3of insitu-overburden, approximately 8,000m3of rock spall from construction access road and 65,000m3of fill materials”; stage 2 identified resources of “6.4 million tonnes of moderately weathered to fresh basalt and 540,000m3of overburden materials”; stage 3 identified resources of “4.1 million tonnes of moderately weathered to fresh basalt and 280,000m3of overburden materials”; and stage 4 identified resources of “5.1 million tonnes of moderately weathered to fresh basalt and 290,000m3of overburden materials”[41]. Additionally, it was also known that “The investigations have revealed a resource of some 16.5 million tonnes of basalt. This is overlain with about 1.2 million m3of in-situ overburden and extremely weathered basalt”[42]. Stage 1 commenced on or prior to 4 August 2009 and was completed at the start of 2011 – that makes “900,000t of moderately weathered to fresh basalt, approximately 85,000m3of insitu-overburden, approximately 8,000m3of rock spall from construction access road and 65,000m3of fill materials” removed in under 18 months and puts the quarry in a Level 2 category, if not a Level 1.
At the community meetings man X, man Y and CASACIR told the community that there were 20 CASACIR trucks removing material from the site per day average (the trucks were generally 40t quad dogs (and some smaller trucks, and some with even larger loads), and this ignored thosenot in the employ or contract for CASACIR: e.g. some of the known companies using the rock were: Blackwoods, Thexton Contractors, Botrans, QR, Tucker, Drews Haulage, Trafalgar Concrete, The Garden Shed, McKay(?), Neerim South quarry, Macklin – amongst others.
The amount of “overburden and extremely weathered basalt” comprises about 23% of the extraction (once you have done the conversion from cubic metres to tonnes)! And they sold some of this overburden and extremely weathered basalt – and have admitted it to the community when repeatedly questioned about it[43].
Dwellings within the 500m from the quarry
It was also well known that there were a number of dwellings considerably within the 500m distance required for a Level 2 assessment: “The closest potential sensitive use is the house … at 140 Pearce Road… The house is approximately 300m to the south of the proposed extraction area. Existing dwellings are located at *27 Palmer Road (some 330 metres to the north); *140 Palmer Road (some 350 metres to the south west) (also referred to as 541 Neerim North Road); …*370 Neerim North Road (some 1,000 metres to the north west)”. The problem with the distances quoted was that they were taken from a centre point of the quarry and not from the closest edge of extraction to each dwelling – thus giving fraudulent distances. For instance, if the distance was taken from the closest point of extraction, it would accurately put the dwelling at 140 Pearce Road at less than 250m from the quarry (and arguably 140m as per man X, man Y and CASACIR’s first work plan), not 300m, and the dwelling at 370 Neerim North Road at less than 300m, not the 1,000m falsely quoted. Just for interest sake, when the 2008 tribunal members went around the site before making a decision on the quarry application, I pointed out the issue with 370 Neerim North Road and was howled down by a man X, man Y and CASACIR representative, Peake, presumably because he didn’t want them to know the truth: he kept referring them to the document instead of looking at the realty of the distance. Bellair, looking at the sightlines, would have seen that the distances were taken from the centre of the quarry site and found nothing wrong in these provable and obvious “inaccuracies”.
In spite of Bellair’s extensive experience, and the clear knowledge that there were a number of dwellings within the 500m buffer, and the knowledge that more than the required amount of material would be removed, thereby all requiring an assessment, ESA stated that [emphasis mine]: “The [Neerim North quarry] proposal does not require an assessment under provisions of EPA’s Protocol for Environment Management – Mining and Extractive Industry (PEM)”[44]. This was in spite of the Mining PEM(which Bellair was very familiar with) stating: “A To enable an assessment of air quality impacts through modelling an understanding of existing air quality (ie.. background) in the area is required. The data requirements for each level of assessment are[45]: [A] Level 2 assessment is required when the proposed development is in a rural location with residences in close proximity or where a small operationis located in an urban area.[46][Andthat a]Medium Mine or quarry between 150,000 tonnes/yr and 500,000 tonnes/yr extraction [in a] Rural area close to residences (less than 500m from the limit of work described in the approved DPI work plan …) [requires a] Level 2” assessment[47]. It goes on to specify that [emphasis mine]: “Monitoring data required prior to conducting air quality assessment [is required to] enable an assessment of air quality impacts through modelling an understanding of existing air quality (ie., background) in the area is required. The data requirements for each level of assessment are: …• Level 2 — Continuous representative4 24-hour PM10and PM2.5data for a 12-month period, representative analysis of crystalline silica (PM2.5fraction) and heavy metal content of PM10…”[48]It then continues with [emphasis mine]: “Operational Control Requirements [stating that] Results of monitoring should not exceed 4g/m2/month (no more than2g/m2/monthabove background)as a monthly average.”[49]
They state that the 500m is not mandatory and could be varied – but fail to state that there are very particular conditions for any proposed reduction. They also quote that that the “distance is to be measured between the emission source(s) and (in non-residential zones) a dwelling” (i.e. using land owned and/or controlled by others in blatant and deliberate breach of the planning scheme) – the closest emission is the creation of the bunds that would be supposed to, but failed to, protect us and that was 140m away based on man X, man Y and CASACIR’s own documents[50]– e.g. that is 72% less distance than required. The EPA stated in their 19 July 2007 response to the referral of the quarry application that [emphasis mine]: “The applicant needs to demonstrate to 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” – yet (1) ESA failed to provide an assessment of what the standards at 500m would be and (2) totally ignored the fact that, according to legislation, man X, man Y and CASACIR had to own or control the entirety of the buffer (which they did not – as was well known)[51].
Dust monitoring plan
Bellair approved man X, man Y and CASACIR’s dust management plan: “Appendix 10 of the Permit Application (dated January 2008) sets out the proposed dust management and monitoring plan … I consider that the management and mitigation measures (including contingency measures) set out in Attachment 10 are consistent with best practice dust management measures for broadly comparable quarries”[52].
The Dust Monitoring Plan, endorsed as part of man X, man Y and CASACIR’s planning permit, stated: “Monitoring Action: Through the use of the real-time data, the monitoring program is designed to facilitate an adaptive management approach to the control of dust. Monitoring of dust generation will be undertaken as follows: *A real-time aerosol dust monitoring station is to be located on the southern boundary of CA179 in line between the proposed processing plant location and the dwelling being erected at 140 Pearce Road. This will be used for monitoring potential off-site dust impacts. It will allow for an adaptive dust management strategy. It will be linked to a computer in the quarry office and continuous monitoring will occur, and*Two dust deposition gauges will be located on the site boundaries. One will be located on the northern boundary where Palmer Rad is truncated. One will be located adjacent to the dust monitoring station on the southern boundary of CA179. These will be used to monitor compliance with dust suppression criteria and will be sampled and analysed monthly”. Man X, man Y and CASACIR’s permit stated: “Prior to the commencement of the use a dust management plan to the satisfaction of the responsible authority must be endorsed under this permit. The dust management plan must be generally in accordance with ‘Dust Management and Monitoring Plan Casacir Pty Ltd – Neerim North Quarry’ forming Appendix 10 of Volume 2 – Appendices to the Submission in support of Planning Permit Application but modified in accordance with the statement of evidence of Dr T Bellair, dated 14 November 2008, part 4.1. The dust management plan must include: *real-time aerosol dust monitoring station which should be at a location to be determined in consultation with DPI; *dust deposition gauges which should be at locations to be determined in consultation with DPI; *contingency measures to deal with any elevated dust conditions. Dust generated by the use must be monitored in accordance with the endorsed plan. Any failure to meet the standards of the State Environmental Management Policy (Air Quality Management) must be notified to the Environment Protection Authority and works/actions specified by that Authority to bring the use into compliance must be carried out to the satisfaction of the responsible authority. Prior to the commencement of the use a weather monitoring station must be erected on the land and thereafter operated and maintained, all to the satisfaction of the responsible authority.[53]”
Clearly the undertaking and the claim in the planning report is a mis-statement at best because the “Mining PEM” was not complied with, there had been no background information collected and the quarry was allowing themselves to use the entire 4g/m2/month (i.e. up to double that “allowed”)! Until the quarry, in the 7 years we had been there, we had had to clean the gutters once, but since the quarry commencement, we had to clean them 5 times between 2009 and early 2014 (when we sold), and a healthy crop of plant-life was growing there yet again because of the dust settling in the gutters! In addition, it was not uncommon to have a gritty taste in the mouth and to see significant plumes of dust frequently exiting the site, much of which entirely missed the two lonely gauge locations, and often entered our property.
Even though Bellair advised that the dust management plan include: “visual inspections of dust suppression by quarry manager/supervisor – I recommend that this provision be amended to make all site personnel responsible for immediately reporting any instances of elevated dust emissions and/or apparent failure of dust control measures to the quarry manager/supervisor, so that appropriate remedial actions can be implemented without delay”[54], the dust management plan ignored his recommendation and stated “The Quarry Manager / Supervisor will undertake daily visual inspections of organic dust suppression”[55]. But Bellair failed to take issue with this ignoring of his advice as an air quality expert.
Sprays
Bellair made the statement that: “Dust emissions from the crushing/screening plant will be controlled by fine mist water sprays”.In spite of Bellair’s assurances and man X, man Y and CASACIR’s permit’s demand that water sprays be installed from the very beginning: “Water sprays will be installed, maintained and operated on the crushing plant, screens and conveyor transfer points … Sprinklers and water cannons will be maintained and operational to apply water to surfaces of stockpiles where necessary to minimise dust generation”[56], Bellair would have been aware that there were no water sprays installed for a number of months if not years if he had actually looked for compliance. In fact, the document contained in “NG8” to the affidavit of Neville Goddard dated 9thNovember 2010: “Measurement of Operational Noise Levels Including Rock Drill” dated 29 October 2010, on the last page “Rock drill and other equipment operating locations” shows dust caused by the crushersthat would most likely leave the site; the “Annual[monitoring]report – December 2009 to November 2010” shows dust not being watered over the crushers, and within that same document the “Figure 1-8” and “Figure 1-18” show dust not being contained, and in fact, most likely leaving the site in a southerly direction (towards our property), and “Figure 1-13” also showed the crushers causing dust; the “Quarterly Environmental Monitoring[report]” dated 15 March 2010 front page and Figure 1-3 show dust caused by the crushers; and the “Quarterly Environmental Monitoring[report]” dated 8 June 2010 Figures 1-2 & 1-3 both show dust caused by the crushers not being watered. Additionally, the DPI Field report dated 16 December 2009 stated: “Dust: Dust was observed crossing the boundary with Pearce Road to the west of [her] residence (and dust monitor).…”; and man X, man Y and CASACIR were served with a s110 notice for dust emissions that contravened the MRSDA in August 2011 (so it was a long-term failure to comply). Yet Bellair apparently failed to be concerned and chose to remain man X, man Y and CASACIR’s dust and air quality specialist, as noted in their claim to the Supreme Court as identified elsewhere in this webpage.
Real-time and dust-depositions monitors
DPI stated in their field report of 16 December 2009 that [emphasis mine]: “Dust was observed crossing the boundary with Pearce Road to the west of [her] residence (and dust monitor). Site was well watered although crushing plant was not using sprays. Dust monitors are in place and monitoring has commenced. … Water spray to be used on crushing plant as soon as possible”, and in their 6 January field report they continued their charge of non-compliance: “Water spray to be used on crushing plant as soon as possible”. Additionally, DPI stated in their audit of 2 August 2011 (9 months after Pollock presented as to compliance at the tribunal and after Bellair’s at least 3 years of on-going oversight) that [emphasis mine]: “Dust emissions: The licensee must take all reasonable measures to prevent a dust release that causes adverse impacts to the surrounding area and residents. Control measures – Water cart for internal road dust suppression, Plant fitted with fixed sprays. Sprinkler system used for wetting shot rock prior to processing. Management has the option to cease works on days of extreme weather conditions. Dust deposition monitoring in two sites results by ETC monthly. Use of controls is sporadic and visible dust emissions are problematic”. The DPI associated field report also of 2 August was more expressive [emphasis mine]: “Dust Emissions. Dust releases are not to cause detrimental impacts on the surrounding area and residents. Dust generated by road traffic on the pit entry road was excessive at time of audit. Instruction Notice RD421100008 has been issued in respect of fugitive dust” – this was a s110 Notice for non-compliance and was served on man X, man Y and CASACIR for this particular breach of the MRSDA (and for the release of dust in breach of their planning permit, their work authority, and other legislation).
In relation to the real-time monitor, Bellair knew that the real-time monitor was required in order to comply with the Dust Management Plan which he had helped devise and approve: “A real-time aerosol monitoring station is to be located on the southern boundary of CA 179 in line between the proposed processing plant location and the dwelling being erected at 140 Pearce Road (refer to accompanying figure) This will be used for monitoring potential off-site dust impacts. It will allow for an adaptive dust management strategy. It will be linked to a computer in the quarry office and continuous monitoring will occur”, but he was also fully aware that it was not “linked to a computer in the quarry office” and that “continuous monitoring” most certainly did NOT occur.
Even though there was no physical “real-time” gauge installed outside out property for many months (ESA did know that the real-time dust monitor was not installed proper to works beginning and that it was not installed until 1 December 2009 i.e. 4 months after man X, man Y and CASACIR commenced their very dusty works) and no working real-time monitor almost a year, man X, man Y and CASACIR knowingly and fraudulently deceived Duncan of DPI by saying that “the device had suffered several failures today and is not functional, in that no real time data is available”. Clearly Duncan was not shown the compound adjacent to our property because if he had been shown it he would have found that they had, yet again, provided a “misleading statement” and had concealed the fact that it was not actually physically installed.The unit was not actually physically installed until 1 December 2009, was not operational for the first 11 months of the quarry operation (ESA’s report, dated 17 August 2010, page 4 acknowledges that: “The DustTrak II monitor was initially installed in December 2009, however, useable data did not become available until … July 2010”). Additionally, the “real-time” gauge unit was also physically missing from at least 11 October to 29 October 2010 and was therefore unable to be either operational or “functional”, and there was no real-time logging for many more months. Apparently, although ESA had the ongoing oversight of the air quality control, it did not take issue with this serious failure to comply or with the deceit and failure to comply shown by man X, man Y and CASACIR.
Man X swore that the real-time dust monitoring was installed on 25 November (remembering that the quarry commenced it dustiest works on 4 August, almost 4 months earlier) and the calibration was on 1 December – in reality I saw (and have photos of) Paul Kemp (quarry manager and another staff member) installingthe monitor and the Fulton Hogan people completing the installation and (presumably) calibrating it, all on 1 December 2009 i.e. 6 days after man X swore that it was installed; (2) the “TP3” exhibit to the affidavit of Timothy Pollock dated 8 November 2010 (page 4) [emphasis mine] stated: “The DustTrack II monitor was initiallyinstalledin December2009”, making man X’s sworn testimony of it being installed “25th November 2009” falsely sworn testimony; and the “TP3” exhibit to the Timothy Pollock’s affidavit stated (page 5) [emphasis mine] “Instrument – DustTrack II. Start date – 07/07/2010” (proving that, although very belatedly installed, it did not commence operation until 7 July, 7 months after installation and 11 months after quarry work commenced, (3) man X swore that he was the person in charge of the quarry; (4) the monitoring mentioned here was a real-time tracker, so it proves that either the the staff and monitoring company weren’t telling man X that it was not working, or that they told him and he didn’t care and won’t admit it. These things pose a number of serious issues: (a) man X, man Y and CASACIR’s staff obviously either hadn’t had any training to know how to read or interpret the data so as to know that it was not working, or they chose not to, as evidenced by the fact that they told DPI that the unit was fully installed at a site attendance when it was not even installed in the paddock); (b) ESA was obviously not monitoring the unit and data, or did not know how to monitor the unit and data, so as to know if it was working or not; (c) man X, man Y, CASACIR and ESA had had since 19 January 2009 to have ordered the unit but obviously did not do so; (d) the fact that there was no monitoring from 4 August 2009 to 7 July 2010 was not a concern to ESA or man X, man Y and/or CASACIR; (f) there were no background levels, thus allowing them all (ESA included) to use the elevated levels; (g) the time that the unit was not installed and then not working was conveniently during what would, according to ESA, have been the most dust producing timeframe!, (h) it is my personal opinion that it could be interpreted that ESA had the opinion that not having data to retrieve for over 11 months (only 7 months of which the unit was actually installed) was actually complying with the permit and work authority conditions was acceptable; and (i) that all this was apparently deemed by ESA to be environmentally responsible!
Pollock’s exhibit TP6 states: “2.2.1 In nine of the ten periods, the southern gauge D2 is more frequently downwind than is the northern gauge D3…. In four periods (6, 8, 9 and 10) the exposure of the southern gauge to the quarry operation is substantially greater than that of the northern gauge”.
“Dr Bellair made a number of recommendations with respect to monitoring dust including visual inspections of dust suppression as a responsibility of all site personnel, the installation of real time aerosol monitoring stations and the provision of dust deposition gauges at appropriate locations. It was his view that dust deposition gauges should not be at the boundary of the site as such locations could result in distortion from outside sources. This is particularly true in this area where crop planting is common and there are a number of unsealed roads located in the vicinity”[57]. The fact is that dust monitors well outside the site give the quarry an allowance for claiming the inclusion of any other dust factors, whereas at the boundary would have been more limited the dust to that proved by the quarry. It is my honest and personal opinion that ESA’s actions to not insist on background monitoring and to have, particularly the southern monitors, well outside the site was made to allow the quarry to more easily appear to comply – because it doesn’t make any sense to me to say that any distortion would be from outside factors unless you put the monitors in locations so as to include any such impacts (if they exist, or are just used as an excuse). Of course, background monitoring would have solved that issue, but that was deliberately ignored.
In spite of man X clearly identifying under oath at the tribunal in 2010 that Bellair had failed them, they continued to use him as their air quality specialist. Further, Bellair had obviously failed to show them how to monitor the unit. Here is what man X swore to, under oath, at the tribunal in 2010:
Sadler (to man X): You were in the tribunal … this morning when Mr Pollack… I was asking about the real time aerosol monitor.
Man X: Yep
Sadler: It didn’t work until July, you agree with that?
Man X: No … No it didn’t. No, no I don’t agree, sorry.
Sadler: Do you agree that Dr Bellair said, is it Dr Bellair, is it Bellair?
Man X: Mm.
Sadler: Bellair says that it didn’t provide any data until 7thJuly?
Man X: Meaningful data, that’s right.
Sadler: So you agree that prior to 7thJuly you were not complying with conditions for dust monitoring.
Man X: We thought that we were complying with the conditions of the work authority.
Sadler: Mm-hmm.
Man X: The, the er, initially Dr Bellair was… , he used, we used all of their … for our references. He er, he thought that it would be better if we got a local lab to test the dust and the deposition gauges and the real time monitor. We were already using Fulton Hogan for our material testing and they said that they would supply the real, the deposition gauges and the real time monitor.
Sadler: Mm-hmm
Man X: They put the deposition gauges in and they failed to come good with the real time monitor, at which time we leased one from where Dr Bellair said we could get one. It was put in. The data that was retrieved from that was meaningless… the data that was retrieved by Fulton Hogan was meaningless to them and us for some unknown reason. And that was one of the reasons that the reporting from that we changed from that to the new people who are now testing the deposition gauges and, and er, Dr Bellair is also reconfigured our aerosol monitor because somehow it got full of water and got sent back and repaired and they also fitted the, it is probably your next question, they fitted the sender unit that reports to the manager’s phone if there is an exceedence in the, whatever it says in that er, er, L10 or whatever the range of dust.”[58]
Peake: At any time prior to Dr Bellair did you find that the real time aerosol monitoring unit was not producing usable data – were you aware of whether or not it was producing usable data?
Man X: We were coming up to point 0015 of a gram per month of dust in the deposition gauge.
Peake: But I’m specifically asking about the real time monitor. Do you know whether it was… did you know if it was working or not?
Man X: No, no I didn’t know if it was working, no I didn’t know it wasn’t working correctly or that all the data that they were getting out of it wasn’t – – –”[59]
Weather stations including at the quarry, Baw Baw and Noojee
ESA noted that: “The closest Bureau of Meteorology (BOM) wind recording station is at Noojee (Silvar), however, these records will be strongly influenced by the valley topography. I consider that the BOM wind data for Mt Baw Baw will be most representative of winds at the subject site”. However, this claim was made after acoustic specialists claimed absolutely that the Noojee site was the most appropriate for comparison. BUT, it must be noted that the actual facts are that ESA deliberately and selectively chose a site that: *is about 26 kms away (as the crow flies), *is at an elevation approximately 1,000m higher than the subject site; and *is significantly different topography to the quarry site. Further, ESA failed to provide the 9am readings in its report – this was in spite of being fully aware that the quarry would start at 7am, with trucks arriving any time before that.
Pollock told the tribunal in 2010 that “For the purpose on my report I have used wind direction and rainfall data from the Bureau of Meteorology Station at Noojee (Silvar Station)” – so here you have two experts in direct contradiction over the relevance of a BoM site. So, Pollock used a BoM site that: *(according to ESA:) “will be strongly influenced by the valley topography”, *is over 200m lower than the quarry, *is on the opposite side of the range and *is of different topography, so is therefore just as inappropriate as the Mt Baw Baw site.
One has to say that either or both of the ESA or Pollock BoM sites are suspect – they can’t both be right (if either of them are at all – which, in my honest opinion, I say neither of them are right).
ESA stated that: “I recommend that an automatic weather station be installed on the site to record wind speed and direction, to assist in management of the site and the interpretation of dust monitoring data”[60]. Yet, after its very belated installation, when there was no connection to any sort of recording device, ESA apparently did not take umbrage in relation to the fact that there could therefore be no actual record of wind speed or direction. So the quarry weather station did not provide any data if it was not actually being watched (and, on the three occasions I have accessed the site (for valid purposes), there was only one time when there was someone at the office and, presumably, they left when their break was over) – therefore the weather station was of extremely little value, if any. Additionally, the very belatedly installed quarry weather station site was chosen with a profusion of trees around it (thereby severely damaging its accuracy) – and the weather station was not installed with a data logging capacity until at least 1 September 2010 (over a year after the quarry commenced works, including some of the dustiest works)[61]. Failure to have a logger meant that “it was not possible to state whether or not the dust deposition complied with the protocol for environment management for mining and extractive industries”[62]. Further: “There are several measures that can be taken to improve the deposition monitoring an the analysis thereof: *Fit a logging facility to the on-site anemometer. Also the siting of the anemometer should be reviewed to ensure that it meets Australian Standard AS/NZS 2923-1987 for siting anemometers. *Consider the installation of a duplicate deposition gauge at the southern site. The mean value of the two samples can then be used and the inherent variability of the method can be reduced”[63]. There was no re-siting and ESA apparently did not care, ESA apparently did not care enough to test to see if the existing anemometer met the Australian Standard, there was no second anemometer installed in a more relevant location to allow for proper reading comparisons – and it took Pollock to make those suggestions, not ESA!
Pollock told the tribunal in 2010 that “Whilst a David Anemometer is installed at the quarry, it was not installed with a data logging capacity. I have requested that a data logger be fitted to the Anemometer” – apparently ESA, having charge of the air quality at the quarry site, had not been concerned about not having the anemometer connected to a logger! And it took Pollock, not ESA, to get it connected – if it is connected at all. However, if Pollock did not actually sight the data logger, its existence is suspect, especially since ESA was in charge and I cannot fine any indication that ESA took issue with the weather not being logged in the first place.
The provisions
The fact is that ESA said that “The provisions of the Work Plan and draft Work Authority reflect good control practice for a hard rock quarry in a rural area”[64] and that the “Bureau of Meteorology (BOM) wind date indicate that nearest residences will have a low degree of exposure to dust emissions from the quarry”[65]. However, ESA gave the qualifying comment that [emphasis mine] “Providing the provisions of the Work Plan and draft Work Authority are implemented, particulate emissions from the proposed should not cause any significant loss of local amenity or risk to health”[66]. Firstly, he could have, and I believe should have, seen that man X, man Y and CASACIR were not implementing the provisions to the extent that his oversight demanded (and he should have seen that there were many other conditions they were failing to comply with), and secondly, as an expert, he should have been conversant with the planning scheme which demanded not only NO detrimental impacts, but an actual increase in the air quality. Yet, strangely, ESA deemed that it was satisfactory that there should not be any “significant loss”, apparently meaning that a loss was entirely acceptable to it. So, in spite of the legal requirement that there be no lessening of the air quality that existed prior to the commencement of quarry, and the legal need to actually improve the air quality, andin spite of ESA stating and therefore being fully aware that the most dangerous times for dust were in the initial stages, works proceeded under the supervision of ESA without monitoring, seemingly, in breach of the law.
Summary
The 2008 tribunal made the following determination [emphasis mine]: “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”[67]. Putting aside most of the other issues (many of which have been dealt with elsewhere in this webpage, man X, man Y and CASACIR went out of their way to not have a good relationship with us, inter alia: they took out water against our wishes and in breach of the law, they polluted our water in spite of complaints, they committed fraud against us (by making a binding undertaking that they were never going to interfere with the flow of Kookaburra Creek again when they had every intention of doing so), they forced us to cope with their excessive noise and dust – and they ignored our complaints about those and other issues (and they ignored the complaints of many others made at community meetings, and they ignored the few complaints made by the authorities).
Bellair did a wonderful job of convincing the 2008 tribunal because they stated: “Dr Bellair made a number of recommendations with respect to monitoring dust including visual inspections of dust suppression as a responsibility of all site personnel, the installation of real time aerosol monitoring stations and the provision of dust deposition gauges at appropriate locations. It was his view that dust deposition gauges should not be at the boundary of the site as such locations could result in distortion from outside sources. This is particularly true in this area where crop planting is common and there are a number of unsealed roads located in the vicinity. It was Dr Bellair’s evidence that the greatest potential for dust emissions from the site was during the establishment works, in particular the removal of top soil and overburden and the construction of the perimeter bunds. Similar control measures to those already mentioned were suggested to reduce dust emissions during these activities together with the benefit of doing the works in the cooler months and minimising the extent of disturbance at any one time. There is a potential for dust to arise from the storage of overburden on the site and the moving of this overburden around the site as the quarry progresses. The moving of overburden around the site, including using it to progressively rehabilitate the quarry as works progress, is a necessary side aspect of any quarry operation”[68].
So, in the full knowledge that significant detrimental impacts would likely be forced upon neighbours (as was the case), what did ESA do about ensuring that the dust was minimised? In its environmental supervisory and project management roles: (a) it allowed works on windy and/or dusty days, (b) it did not necessitate monitoring for the 12 months prior to any quarry activities commencing so as to obtain a baseline or background, (c) it failed to insist on precautions being required when building the bunds that were supposed to (but failed to) stop the dust, (d) it failed to require the chemical suppressants when needed, (e) it allowed the quarry works to continue when the dust deposition monitors were not installed for a period of almost 3 months while some of the dustiest works that ESA foretold were performed, (e) it allowed the quarry to work while the legally mandated real-time monitor (i) was not installed for 4 months while some of the foretold dustiest works were performed, (ii) was not operational for a further in excess of 7 months while more of the foretold dustiest works were performed (iii) was not actually connected to a logger for at least a year (so unless someone was actually sitting there watching the computer at all times, they would not know whether it was operational and/or if levels were exceeded – of course, it is my opinion that man X, man Y and CASACIR’s failure to have it connected to the computer was deliberate), (f) it allowed up too double the dust “allowed”, (g) it did not insist that the air quality not be reduced at all (let alone improved as required by law), (h) it did not insist that the dust be contained within the site, (i) and so on.
The reality is that a recent viewing of the Neerim North quarry via Google Earth (updated on 2 August 2020), reveals that ESA’s oversight, environmental control and management allowed for dust blowing off the site on to other’s land, and so on.
ESA clearly stated that the “existing settling dam” was to be used for sedimentation – and according to the work plan, that means that that sediment had a strong probability of being transported through to the watertable, causing contamination since the work plan was very clear in that there was a history of water escaping through the fractures into the watertable and it intended to ensure that it continued – and ESA is an environmental specialist company! And it stated that the water from the “sedimentation dam” would be pumped to the “existing clean water dam” (which is NOT a “clean” water dam at all – it is filthy – and, even if it was a “clean” water dam, the discharge from the “sedimentation dam” would pollute it[69].
ESA provides the sources of particulate emissions: “[T]he movement of trucks and loaders on unsealed roads and operational areas” [but the truck route into the quarry allowed dust to exit the site over the top of the bund], “topsoil and overburden stripping” [which came before the creation of the bunds, since it was that material that would construct the bunds!]. Asbestosis can come from a single in inhaling of the fine asbestos particles, I would assume that it would be the same or similar with silica dust – man X, man Y and CASACIR claim that there is no silica on site, but I find that a strange claim given that we had the same basalt and also had silica on the property at 140 Pearce road (in locations that were only 140m from the edge of the quarry site[70]).
The reality is that the dust was not contained, was prolific on numerous occasions and was not in accordance with the law – yet I can find no real issue with any of that from ESA.
Addendum: the “site boundary” (within which the dust was legally required to be contained) as detailed by a number of sources, including Bellair:
It must be noted that the quarry site boundaries were admitted as follows [emphasis mine]:
- Work plans (submitted by man X, man Y, CASACIR, and Kraan and approved by Bellair and ESA): Man X, man Y and CASACIR’s first work plan acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “1 The work plan has been prepared … and covers specifically covers the following issues: * A work plan outlining the specific issues of how the quarry will be developed and operated. 1.2 The Locality [sic] Plan (Figure 1) shows the sitein relation to ….. [71]… 7.1 The nearest sensitive receptor is 140m from the southern boundary[72]. … Figure 1: The regional plan shows the WA boundary as the “site”. … Figure 7: The sightline plan shows the WA boundary as the “site””. Man X, man Y and CASACIR’s second work plan stated [emphasis mine]: “1.2 The Locality [sic] Plan (Figure 1) shows the site in relation to …..Figure 1: The regional plan shows the WA boundary as the “site” … Figure 7: The sightline plan shows the WA boundary as the “site””. Man X, man Y and CASACIR’s third work plan [emphasis mine]: “1.2 The Locality Plan [sic] (Figure 1) shows the sitein relation to …..[73]… 6.2.4 Initial stage development – The town planning permit requires some bund construction and vegetation screening planting to be done before the quarry can commence use. Key points of initial site development are listed below: Southern boundary (of the work authority) …, Southern and western boundary (of title, south of the work authority)…[74]….Figure 1: The regional plan shows the WA boundary as the “site” … Figure 7: The sightline plan shows the WA boundary as the “site“”.
- The planning reportsacknowledged the boundaries of the “site” in the following manner: Man X, man Y and CASACIR’sfirst version of the planning report stated [emphasis mine]: “0 The subject site will be an important supplier … it is located within Extractive Industry Interest Area[75]. .. 2.1 The Regional Plan (Appendix 1) shows the sitein relation to …[76]…The site abuts the Neerim North Road to the west and Pearce Road forms the southern boundary. … Figure 1: The regional plan shows the WA boundary as the “site”. … Figure 7: The sightline plan shows the WA boundary as the “site””. Man X, man Y and CASACIR’ssecond version of the planning report (which was endorsed as part of man X, man Y and CASACIR’s permit) stated [emphasis mine]: “1.0 The subject site will be an important supplier … it is located within Extractive Industry Interest Area” [and most of the property is not] … 2.1 … The site abuts the Neerim North Road to the west and Pearce Road forms the southern boundary. … 3.5 When designing the working plans for the proposed quarry particular attention was given to the provision of buffer areas between the extraction area and property boundaries. This area set aside for buffers can be seen on Figure 5 – Development Plan. … 3.5 The initial phase of Stage 1 will include the construction of earthen bunds along the southern and western boundaries of the quarry site. A bund will also be constructed in the south west corner of the adjoining land to the south, which is also owned by the principals of Casacir Pty Ltd. These bunds will be planted with native vegetation including trees and shrubs (refer to Figure 3 in Appendix 3). … 3.11 The initial phase of Stage 1 activity will involve removing overburden and fill from the former quarry area. It is estimated that there is 85,000 m3of insitu overburden and 65,000 m3of fill material to be removed. Approximately 90,000 m3 of this material will be used to construct earthen bunds along the southernand western boundaries of the site. … Figure 1: The regional plan shows the WA boundary as the “site”. … Figure 7: The sightline plan shows the WA boundary as the “site””.
- In its acoustic report, Watson Moss Growcott acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “(Statement for the purposed of the VCAT practice note) 7. * Work Authority Area Plan[77]. …1. This report revision includes the results of revised noise modelling to incorporate the noise reduction benefits of a higher noise bund at the southern end of the site.[78]”And the associated “Appendix 3” also shows the site as being the WA boundary.
- In his witness statement, Kraan acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “1 Within the WA area, the extraction site is… The existing topography restricts the views into the proposed extraction site from the Neerim North Road and the western part of Pearce Road. The extraction site is partially visible from the eastern part of Pearce Road. This site will be screened by the use of earthen bunds and landscape plantings[79]. … 4.4 Landscaping will also be provided on that part of the property owned by the principals of Casacir to the south of Pearce Road[80]. … The initial phase of Stage 1 will include the construction of earthen bunds along the southern boundary of the WA area along Pearce Road. Bunding will also be provided at the south west corner of the WA area adjacent to Neerim North Road and south of the quarry entrance. These bunds will be planted with native vegetation including trees and shrubs (refer to Figure 3 in Appendix 4). A landscape screen will be established along the western boundary of the WA area within the 20 metre buffer area. Landscaping will also be provided within the 20 metre buffer along the northern boundary of the WA area from Neerim North Road to a point approximately 60 metres east of the gate located at Palmer Road. This will be augmented with earthen bunding to the east of the Palmer Road gate. Landscaping will also be provided on that part of the property owned by the principals of Casacir to the south of Pearce Road. In the south west corner, this will be located along the Neerim North Road frontage and for a distance of approximately 120 metres along the southern boundary. In the eastern area, a 25 metre wide landscape screen will be provided along the southern boundary for a distance of 100 metres either side of the location of the new dwelling being constructed at 140 Pearce Road. 4.5 In Stage 1, the overburden will be primarily used to construct the earthen bunds along the southern and part of the western boundaries of the WA area and on the adjoining landto the south. … 4.7 Site Security –A 1.2 metre high stock proof fence will completely enclose the WA area. A lockable gate at the entrance will restrict unauthorised entry when the quarry is unattended. During operational hours, all persons entering the site must report to the site office and be inducted prior to carrying out any further activities within the WA area[81]. … 4.10 The initial phase of Stage 1 activity will involve removing overburden and fill from the former quarry area. It is estimated that there is 85,000 m3 of insitu overburden and 65,000 m3 of fill material to be removed. Approximately 90,000 m3 of this material will be used to construct earthen bunds along the southern and western boundaries of the WA area. Material that is not used for this purpose will be temporarily stored behind the western screening bund and used for subsequent rehabilitation in Stages 3 and 4. It is anticipated that some of the fill material is shot rock. If encountered, this will be processed to create crushed rock products. In the early phase, the quarry access road and hard stand areas will be constructed and the existing settling dam will be enlarged to create a surface area of approximately 4,000 m2 with approximately 4 m freeboard. This will be the primary settling dam for the quarry. Construction of the site drainage system, settling dams and sediment traps will also occur. This will include protection of spring discharge (where the quarry access road crosses the drainage line) by means of culverts under the access road. Landscape planting of the earthen bunds will also be undertaken. Topsoil and overburden will then continue to be removed and used in the manner described in Section 4.5. … 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[82]. … 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[83].”
- In his witness statementNatoli acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “3 The investigation works identified basalt resources within the overall site comprising 16,5 million tonnes of dominantly fresh basalt. … Appendix 1: 5 In 2005 I was instructed by Mr. D. Jeffrey of Casacir Pty. Ltd. to undertake geological investigations and assessments of this site. … BCA have prepared the Work Plan, in accordance with the Extractive Industries Development Act 1995, for the overall development of the site as a quarry.”
- In the Hyder witness statement it acknowledged the boundaries of the “site” in the following manner [emphasis mine]: Figure 1.1 shows site as WA boundary.
- In the Ratio report dated June 2007 it acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “1 The site is essentially rectangular in shape with frontages to Neerim North Road and Pearce Road… Pearce Road south of the quarry …. … 2.2 Pearce Road runs east from Neerim North Road along the southern boundary of the site. … 3.1 An internal access road will be constructed parallel to Pearce Road along the southern boundary of the site”.
- In the Ratio witness report it acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “2 Pearce Road runs east from Neerim North Road along the southern boundary of the site.… 3.1 An internal access road will be constructed parallel to Pearce Road along the southern boundary of the site”.
- In the Watson Moss Growcott Acoustic reports dated 20 November 2007 and 27 November 2007 it acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “ …bund at the southern end of the site[84].”
- In the Terrock Blasting report dated 26 November 2007 it acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “7 Blasting can be conducted at the Neerim North Quarry (WA1347)[85].”
- Anne Bignell’s email identifies and acknowledges the WA the “site” in the following manner [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 [man X, man Y and CASACIR]”.
- The general Site ID on man X, man Y and CASACIR’s Figures [emphasis mine]: (a) Figure 1shows onlyWA boundary area; (b) Figure 2shows WA as predominant, and the property boundaries not complete and are only provided because it was a requirement to do so; (c) Figure 3(version endorsed by Council as being part of the permit, and approved by DPI as being part of the work plan and work authority) is called the site development plan and clearly identifies the WA and extraction boundaries – the property boundary to the south is shown but is not “highlighted” in any way and the legend identifies it as the “title/property boundary” and not as the “site” boundary. While cross section DD’ is shown to intrude into the land on the south of Pearce Road (i.e. outside the site boundary) the actual cross section does not identify any works within that land to the south of Pearce Road (they are therefore obviously not relevant to the “site”); (d) Figure 3(version endorsed (as “amended” plan) by Council as being part of the permit, but not approved by DPI as being part of the work plan and work authority – consequently contradicting the ones that are part of the work authority and which contradicts reality) is called the site development plan and clearly identifies the WA and extraction boundaries – the property boundary to the south is shown but is not “highlighted” in any way and the legend identifies it as the “title/property boundary” and not as the “site” boundary. While cross section DD’ is shown to intrude into the land on the south of Pearce Road (i.e. outside the site boundary) the actual cross section does not identify any works within that land to the south of Pearce Road (they are therefore obviously not relevant to the “site”); (e) Figure 3(version produced for 2010 tribunal hearing dated 20/10/10 – as “DJ1” to David Jeffrey’s sworn affidavit dated 8 November 2010.Not approved or endorsedby Council as being part of the permit, and not approved by DPI as being part of the work plan and work authority – and which consequently contradicts part of the ones that arepart of the work authority and permit) is called the site development plan and clearly identifies the WA and extraction boundaries – the property boundary to the south is shown but is not “highlighted” in any way and the legend identifies it as the “title/property boundary” and not as the “site” boundary. While cross section DD’ is shown to intrude into the land on the south of Pearce Road (i.e. outside the site boundary) the actual cross section does not identify any works within that land to the south of Pearce Road (they are therefore obviously not relevant to the “site”); (f) Figure 4shows the “work authority area plan” – if it was showing the site and containing the land to the south of Pearce Road it would have identified this. In addition, the WA boundary should have been at the southern boundary if it was including the land to the south of Pearce Road. (g) Figure 5(version endorsed by Council as being part of the permit, and approved by DPI as being part of the work plan and work authority) shows the site being the WA boundaries – that is the external highlighted or clearly depicted boundary. (h) Figure 5(version endorsed (as “amended” plan) by Council as being part of the permit, but not approved by DPI as being part of the work plan and work authority – consequently contradicting the ones that are part of the work authority and which contradicts reality); and (i) Figure 7shows the site as clearly being the WA boundary.
- In McWhinney’s report to council, dated 11thJune 2008, he reveals council’s clear understanding of the site[emphasis mine]: “(6) 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” – thus the buffer is the land surrounding the site and the site is therefore the WA boundary, being the external boundary of the stated buffer.The “site” isclearly the land and works contained within the WAboundary and notthe property
- The 2008 tribunal made determinations on meeting the performance standards at the site boundary. It should be noted that the members clearly identified that the performance standards are to be met at the boundaries of the site. CASACIR will doubtless attempt to say that the site is the boundary between us and them. In addition, the members stated in their Reasons [emphasis mine]: “25 The EPA made the following comments in response to the first application to DPI for a draft Work Plan: *Advise that the applicant currently operates two other quarries in the region and the EPA has not had any environmental issues with their day-to-day operations and existing issues at the time of purchase were immediately resolved. *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 consideran 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 demonstrate to 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…. 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; …. 62 Clause 17.09-1 requires development of stone resources to be in accordance with acceptable environmental standards. Clause 17.09-2 further requires that provision be made for buffer areas between new extractive industries and sensitive land usesin accordance with 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 proponentof an extractive industry, are specified in an application for permit. *Performance standards for the buffer area are set in accordance with the requirements of the Extractive Industries Development Regulations 1996or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry[86]. … 67 It was pointed out by the objectors that clause 17.03-2 which deals with industry in the State Planning Policy Framework also refers to AQ2/86 as the appropriate standard to have regard to: *Adequate separation and buffer areas must be provided 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. *Planning and responsible authorities must have regard to Recommended Buffer Distances for Industrial Residential Air Emissions (EPA 1990) and promote best practice risk and environmental management. …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. In coming to this conclusion we note that: (a) there is a discrepancy between the provisions of clause 17.09 (which specifically relates to extractive industries and requires buffer distances to be set in accordance with performance standards) and clause 17.03-2; [now 17.02-2], (b) the intent of the Department of Primary Industries’ document Guidelines for Extractive Industries with respect to determining suitable buffer distances is a performance based standard; (c) the EPA publication is old and has not been updated since 1990. Further, its recommendations are limited to industrial residual air emissions which in the present circumstances would specifically relate to dust; (d) the recommendations contained within AQ2/86 are based on overseas and local experience without any supporting information being provided or any indication of what standard the buffer distances proposed are intended to achieve. … 70 We are also of the philosophical view that performance standards are more appropriate than a set distance that takes no account of the particular circumstance or size of the particular proposal. 71 … In any event 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 siteand if increased activity on the site resulted in these standards being breached then such activity would be prohibited[87]. … 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. 135 It was argued by the objectors that the buffer distance guidelines contained within EPA AQ2/87 should apply, rather than dust performance standards at the boundaries of the site. This matter has already been dealt with in this determination and will not be revisited. … 138 The issue that then remains is whether the operations on the site can meet the required standards at the site boundary… … 159 … The Tribunal is satisfied that the required performance measures can be met at the boundaries of the site, ….”. Thus the members made it clear that the quarry had to comply, that the requirements had to be met at the site boundary (i.e. the work authority boundary) and that neighbours had to be protected, and it was on that basis that the permit issued: “162 Subject to more stringent permit conditionsto ensurethe amenity of neighbours and the environment is protected, we direct a permit to issue for a hard rock (basalt) quarry on this site” – but the neighbours were not protected – man X, man Y and CASACIR and their team had lied to the members and the members, having believed the lies, were therefore misled.
- Bellair himself acknowledged the boundaries of the “site” in the following manner [emphasis mine]: “ The initial phase of Stage 1 will include the construction of earthen bunds along the southern and western boundaries of the quarry site, and also in the southwest corner of the adjoining land to the south (which is also owned by Casacir)[88]”.
All in all, the site was determined to be the land within the work authority area, and the dust must be contained within that area, yet Bellair, and the air quality specialist with such oversight over the quarry, repeatedly ignored that demand and allowed the dust to be monitored well outside that site and also allowed the dust levels to be up to double those allowed.
[1] From their statement of claim to the Supreme Court of Victoria in 2011.
[3] Section 3 of his “Attachment 1. VCAT Practice Note VCAT 2” to his witness statement dated 14 November 2008
[4] Section 4 of his “Attachment 1. VCAT Practice Note VCAT 2” to his witness statement dated 14 November 2008
[10] See the Addendum at the end of this webpage which clearly admits the site boundary definition
[11] Repealed and replaced by the MRSDA on 1 January 2010
[12] These have both been repealed and replaced by the Mineral Resource (Sustainable Development) Act(MRSDA)
[13] Protocol for Environmental management: Mining and Extractive Industries, in Introduction
[15] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 6.1.2
[16] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, “Summary of findings” on page 1, no 1.
[17] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 6.1
[18] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 8.1
[19] The 2008 VCAT decision, at Reason [133]
[20] The 2008 VCAT decision, at Reason [134]
[21] Repealed and replaced by the MRSDA on 1 January 2010
[22] A sub-clause of the then clause 65 of the planning scheme, as quoted by McWhinney of Baw Baw Shire council in his report to council dated 11 June 2008, in section 6.
[23] The 2008 tribunal reasons at [138]
[24] The 2008 tribunal reasons at [71]
[25] The 2008 tribunal reasons at [138]
[26] A legally binding document
[28] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 8.2
[30] Part 7.4 and 7.4.1 of the work plan
[31] The Environmental Management Plan (an appendix to the work plan), under “Dust”
[33] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 9.1.
[34] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 3
[35] According to the affidavit of Timothy Pollock and Exhibit TP6, section 9.1
[36] The 2008 VCAT decision, at Reason [139]
[37] The 2008 VCAT decision, at Reason [140]
[38] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 9
[39] Namely, Pearce Road. The 2018 Ratio traffic report states: “2.2 The eastern end of Pearce Road provides access to two rural properties”, and “4.2 Traffic volumes on the surrounding road network are relatively low” – meaning that there was very little traffic use of the road and therefore very little dust, if any, from the use.
[40] Man X, man Y and CASACIR’s work plan, at page 11, endorsed as part of man X, man Y and CASACIR’s permit and approved and supported by Bellair
[41] Man X, man Y and CASACIR’s work plan at pages 19-21, endorsed as part of man X, man Y and CASACIR’s permit and approved and supported by Bellair
[42] Man X, man Y and CASACIR’s planning permit at section 3.2, endorsed as part of man X, man Y and CASACIR’s permit and approved and supported by Bellair
[43] Bellair’s 2008 witness statement at section 1.2
[44] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, point 1.
[45] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, Section 3.4
[46] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, “General assessment requirements”:
[47] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, Table 1
[48] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, Section 3.4
[49] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008,Section 4
[50] Man X, man Y and CASACIR’s first work plan at section 7.1: “The nearest sensitive receptor [being the dwelling at 140 Pearce Road] is 140m from the southern boundary”
[51] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 4
[52] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 8.1
[54] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 8.1, under “monitoring actions”.
[55] The dust management plan, under “monitoring actions”
[56] Man X, man Y and CASACIR’s dust management plan, approved by Bellair
[57] The 2008 VCAT decision, at Reason [139]
[58] T45:15–T46:11 (26 November 2010)
[59] T49:11-18 (26 November 2010)
[60] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, section 9.2
[61] According to the affidavit of Timothy Pollock and Exhibit TP1, paragraph 15
[62] According to the affidavit of Timothy Pollock and Exhibit TP1, paragraph 16
[63] According to the affidavit of Timothy Pollock and Exhibit TP6, section 3
[64] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, “Summary of Findings”, point 2.
[65] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, “Summary of Findings”, point 3.
[66] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008, “Summary of Findings”, point 4.
[67] The 2008 VCAT decision, at Reason [138]
[68] The 2008 VCAT decision, at Reason [139] and [140]
[69] Bellair’s witness statement (made on behalf of ESA) for the Neerim North Quarry, dated 14 November 2008,section 2
[70] According to man X, man Y and CASACIR’s first work plan
[71] the plan shows the WA boundary as the “site”
[72] they are thereby identifying that the land to the south of Pearce Road is not part of the site andthat we already had a dwelling (in the shed) and that we were 140m way from the closest point of impact – not the common boundary!!!
[73] the plan shows the WA boundary as the “site”
[74] clear delineation as to what is in the site and what is outside the site (but inside the property
[75] and most of the property is not
[77] Again, this is the area shown to be the “site”
[79] clearly the “site” is to the north of Pearce Road
[80] not identified as being part of the “site”
[81] clearly the site is only the WA boundary since there is no such requirement for induction to go into the land to the south of Pearce Road
[82] Therefore it cannot be considered that the “site” includes the land to the south of Pearce Road, let alone land owned or controlled by others
[83] Therefore it cannot be considered that the “site” includes the land to the south of Pearce Road, let alone land owned or controlled by others
[84] This is clearly the WA boundary), and the report’s appendix 3 shows the site as being the WA boundary and within.
[85] This is clearly the WA area and shows that it is within those boundaries. The report’s appendices 1 & 2 both show the site as being the WA boundary and within.
[86] This became SSPF 14.03-2 and the relevant legislation is now the Mineral Resource (Sustainable Development) Act1990 and the Mineral Resource (Sustainable Development) (Extractive Industries)Regulations 2010
[87] They provided a footnote stating “eg inability to achieve EPA’s N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria”