Review of VCAT Decisions for the Extractive Industry

By on December 7, 2017

DR ELIZABETH GIBSON, General Manager of CMPA provides a review of the CMPA VCAT Project.

Overview

The purpose of this study is to review VCAT decisions on the extractive industry applications for planning permits under the Planning and Environment Act 1987 (PE Act) to use and develop
land for extractive industry and for statutorily endorsed work plans under the Mineral Resources (Sustainable Development) Act 1990. (MRSDA).

The Construction Material Processors Association (CMPA) is concerned that there have been a number of adverse decisions in VCAT including decisions in the favour of the quarry operator
that may have onerous conditions that could make the project commercially unviable.

The CMPA is also concerned that these adverse decisions are creating investment uncertainty for existing operators as well as for Greenfield quarries that will compromise the ability of the
extractive industry to supply construction materials for critical major projects and future economic growth in Victoria.

Key Findings

Of the 24 VCAT orders, 11 or 46 percent resulted in adverse  outcomes or the quarry operator not proceeding due to the onerous conditions.

This resulted in significant duplication of the work plan in the Victorian Civil and Administrative Tribunal (VCAT) planning permit conditions and duplication of enforcement by Earth Resources
Regulation (ERR) and responsible authorities.

From 2009 to 2013, 13 cases or 87% were granted permits and in 2 cases, permits were refused. From 2014 to 2017, 4 cases or 44% were approved and in 5 cases, permits were refused. Accordingly, the proportion of VCAT cases that have been refused a permit has increased over the past four years. Of the 4 cases approved only 2 proceeded to operation.

The issues in most VCAT cases appear to have been over-stated and unsubstantiated by the responsible authorities and objectors.

Earth Resources Regulation (ERR) does not represent and defend their endorsement of a quarry operator’s work plan at VCAT. ERR should attend VCAT hearings and be accountable for their endorsement of the work plan.

The extractive industry has demonstrated over time across a broad range of sites that it can meet the Environment Protection Authority (EPA) Noise and Air Quality State Environment Protection
Policies (SEPP). Government should consider excluding noise and dust impacts where the nearest dwelling is outside the recommended buffers so that a responsible authority could not refuse a permit or a resident object and appeal to VCAT.

In view of the inconsistent approach taken by VCAT in respect to planning permit conditions, there would appear to be a role for Department of Environment Land Water and Planning (DELWP)
and Department of Economic Development, Jobs Transport and Resources (DEDJTR) to review the ERR’s list of standard conditions in consultation with the extractive industry. This would provide guidance to responsible authorities and VCAT and ensure a consistent approach is applied to the extractive industry.

Reforms to the Planning and Environment Act 1987 (PE Act) and the Victorian Planning Provisions (VPP) that remove the right to object in cases where the quarry is compliant with the EPA
recommended noise and air quality buffers and an agreed set of standard conditions would eliminate the millions of dollars spent by the extractive industry at VCAT as well as landholding
costs and missed commercial opportunities incurred during the process that invariably takes about three years (these costs will be detailed in a further review).

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VCAT Outcomes

37 VCAT cases from 2009-2017 involving 27 quarries were reviewed; with VCAT granting or varying planning permits in 17 cases and refusing to grant a planning permit in 5 cases and statutorily endorsing a work plan in 2 cases.

Type of Conditions

The typical conditions for a planning permit prior to use and develop land for the extractive industry or landfill include: endorsed work plans, non-alteration of site layout unless the responsible authority has consented, hours of operation, noise and dust management plans, landscaping and rehabilitation plans, removal of native vegetation, car parking and road works, compliance with SEPPS and expiry provisions.

Where appropriate and relevant to the specific circumstances ofthe subject land, VCAT has also included conditions in respect to: drainage and storm water management, groundwater, environmental management plans, native vegetation offsets, traffic management plans, road maintenance financial contributions and aboriginal heritage.

Alarmingly, new categories of conditions would appear to include:  production limits, restrictions on truck movements, prohibition of retail sales, lighting and security restrictions, restrictions on traffic routes, complaints management and undertaking risk modelling.

Have conditions become more onerous?

In terms of new conditions, four quarries now have prescribed production limits and a further two quarries now have prescribed maximum daily truck movements. A further three quarries are prohibited from undertaking retail sales. Four quarries have lighting restrictions and one quarry is required to keep a complaint register.

Since 2014, several approvals have required acoustic reports and ongoing noise monitoring in addition to compliance with the standard EPA noise requirements. In some cases, air quality reports and air emission management plans have been required as well as air and ground vibration testing to measure compliance with blasting regulations.

Notwithstanding this, some of these conditions such as keeping a complaint register have become standard conditions in work authorities.

The review has found earlier VCAT Orders were more likely to provide general obligations in respect to a specific condition, whereas lately, the obligations have become far more prescriptive and are already covered in the work plan and repeated in the work authority.

In addition, the review has also found councils apply the same type of condition in an inconsistent manner despite the fact that the ERR already have standard conditions for a work authority. This is particularly evident with the landscape condition.

The landscaping condition now requires detailed landscaping plans prepared by landscape architects, prescribed lists of native species, height and diameter requirements, and in some cases,
security deposits/bonds and audits. Some VCAT orders have even required the number and type of trees, shrubs and ground covers by botanical and common names, the number of pots, size at maturity and planting densities.

Other notable inconsistencies include conditions relating to environmental management plans, blasting, traffic management reports and road maintenance contributions.

The review has also found significant duplication of the work plan in the VCAT planning permit conditions. This creates two regulators for the extractive industry; the responsible authority that administers and enforces the planning permit and the ERR who administers and enforces the work plan and work authority. The ERR should be the only regulator of the extractive industry. It has the legislative power to suspend or close a quarry if persistent non-compliance of the planning permit conditions/work authority is not rectified. Instead, VCAT should only decide whether the proposal is consistent with the requirements of the Victorian Planning Provisions (VPP) and not duplicate the matters set out in the work plan. However, it should be able to prescribe conditions directly relevant to the responsible authority such as road works and traffic management. Other than that, ERR should set out the conditions in the work authority.

The full report can be found at www.cmpa.asn.au

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