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.
The “site” boundaries have been very clearly identified – the performance standards had to be met at or within the site boundaries – but were not.
Man X, man Y and CASACIR’s first work plan stated [emphasis mine]: “1.1 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 site in relation to ….. [1] … 7.1 The nearest sensitive receptor is 140m from the southern boundary[2]. … 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 first version of the planning report stated [emphasis mine]: “1.0 The subject site will be an important supplier … it is located within Extractive Industry Interest Area[3]. .. 2.1 The Regional Plan (Appendix 1) shows the site in relation to …[4]…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’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 second version of the planning report (which has been endorsed as part of the 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 east 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 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 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””
Man X, man Y and CASACIR’s third work plan [emphasis mine]: “1.2 The Locality Plan [sic] (Figure 1) shows the site in relation to …..[5] … 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)…[6]…. Figure 1: The regional plan shows the WA boundary as the “site” … Figure 7: The sightline plan shows the WA boundary as the “site””
Bellair references to the “site” [emphasis mine]: “2. 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)[7]”
Goddard (acoustic report) references to the “site” [emphasis mine]: “(Statement for the purposed of the VCAT practice note) 7. * Work Authority Area Plan[8]. …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.[9]” And the associated “Appendix 3” also shows the site as being the WA boundary.
Kraan (witness statement) references to the “site” [emphasis mine]: “2.1 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[10]. … 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[11]. … 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 land to 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[12]. … 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[13]. … 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[14].”
Natoli witness statement [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 [man X] 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.”
Hyder witness statement [emphasis mine]: Figure 1.1 shows site as WA boundary.
Ratio report dated June 2007 [emphasis mine]: “2.1 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”.
Ratio witness report [emphasis mine]: “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”
Watson Moss Growcott Acoustic reports dated 20 November 2007 and 27 November 2007 [emphasis mine]: “1. …bund at the southern end of the site[15].”
Terrock Blasting report dated 26 November 2007 [emphasis mine]: “7 Blasting can be conducted at the Neerim North Quarry (WA1347)[16].”
Anne Bignell’s email identifies the WA as the “site” [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]”.
General Site ID on man X, man Y and CASACIR’s Figures [emphasis mine]: (a) Figure 1 shows only WA boundary area; (b) Figure 2 shows 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 man X’s sworn affidavit dated 8 November 2010. The iteration not approved or endorsed by 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 are part 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 4 shows 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 7 shows the site as clearly being the WA boundary.
McWhinney’s report to council, dated 11th June 2008, states 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” is clearly the land and works contained within the WA boundary and not the property boundary.
The 2008 tribunal made determinations on meeting the performance standards as having to be met at the site boundary – to repeat: it must be noted that the tribunal members clearly identified that the performance standards are to be met at the boundaries of the site. Man X, Mann Y and Casacir will doubtless attempt to say that the site is the boundary between us and them. In addition, the tribunal members state 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 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 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 uses in 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 proponent of 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 1996 or a work authority or a permit and have regard to the zoning of the land surrounding the extractive industry[17]. … 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 site and if increased activity on the site resulted in these standards being breached then such activity would be prohibited[18]. … 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, ….”. 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 conditions to ensure the 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.
[1] the plan shows the WA boundary as the “site”
[2] they are thereby identifying that the land to the south of Pearce Road is not part of the site and that we already had a dwelling (in the shed) and that we were 140m way from the closest point of impact – not the common boundary!!!
[3] and most of the property is not
[4] i.e. the WA boundary
[5] the plan shows the WA boundary as the “site”
[6] clear delineation as to what is in the site and what is outside the site (but inside the property
[7] clearly the site is the WA boundary
[8] Again, this is the area shown to be the “site”
[9] clearly the WA boundary
[10] clearly the “site” is to the north of Pearce Road
[11] not identified as being part of the “site”
[12] 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
[13] 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
[14] 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
[15] This is clearly the WA boundary), and the report’s appendix 3 shows the site as being the WA boundary and within.
[16] 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.
[17] This became SSPF 14.03-2 and the relevant legislation is now the Mineral Resource (Sustainable Development) Act 1990 and the Mineral Resource (Sustainable Development) (Extractive Industries) Regulations 2010
[18] They provided a footnote stating “eg inability to achieve EPA’s N3/89 Interim Guidelines for Control of Noise from Industry in Country Victoria”