An Unsustainable Future Case Study – The Real Costs of Red Tape

The CMPA published the An Unsustainable Future: The prohibitive costs of securing access to construction material resources in Victoria report in late 2009. The summary of this report was published in Sand & Stone Edition 47. This is an important report that documents the real costs and time in obtaining a new Work Authority or extending an existing Work Authority. The report was based on nine case studies which provide real examples of the issues facing the industry. One of these Case Studies is presented below.

BRIEF HISTORY & DESCRIPTION

This Case Study involves an application for a new hard rock Work Authority to extract high quality basalt by re-opening a former, rehabilitated quarry site that ceased operating in 1995. The basalt is anticipated to be capable of producing a range of products including asphalt aggregates and commercial crushed rock and aggregates that would supply a variable market.

It is anticipated that the project would extract 100,000 tonnes of spall, crushed rock and aggregate in the first year of operations and this would be increased to 250,000 tonnes per annum thereafter. It is anticipated that 900,000 tonnes will be recovered over the first 5 years of operation. Initially quarried rock would be trucked to one of the proponent’s other quarries for further processing but after Stage One a crushing plant would be established within the quarry.

PRE-APPLICATION PROCESS

This process commenced in June 2005 with discussions held by the proponent with DPI and advice being received. A consultant was engaged to coordinate the development of the Work Plan. The following studies were then undertaken:

• The management of fauna and flora issues;
• The management of surface and groundwater;
• A detailed geological investigation of the overall proposed quarry extension area;
• Effects of blasting including vibration levels, complaint handling procedure, effective control of blasts including vibration monitoring, fly rock control and effects on domestic and wild fauna.

Community consultation meetings were held in July 2005, August 2006, and twice following the planning permit application. On 27 October 2006 a draft Work Plan was submitted to DPI. The Work Plan was initially endorsed by DPI on 23 January 2007.

Separate to the development of the draft Work Plan, a Planning Permit application for a residential dwelling on the adjacent property to the quarry within the EPA buffer distance was received by Council on 10 October 2006.

Council advised DPI on 19 October 2006, prior to the submission of the draft Work Plan, of the Planning Permit application. DPI did not object to this Planning Permit application for a dwelling as the “WA was an application only and as such, DPI was not in a position to comment”.

The applicant appealed to VCAT on Council’s failure to determine the Planning Permit application in a timely manner as Council wanted to defer a decision until details of the quarry proposal had been finalised. The VCAT ruling on 10 April 2007 directed the Council to issue the Planning Permit for the dwelling which Council achieved on 12 April 2007.

DPI knew when they endorsed the Work Plan in January 2007 that there was a Planning Permit application for a dwelling within the buffer distance, but did not take the implications of this proposal into account when endorsing the Work Plan. DPI subsequently dis-endorsed the Work Plan on 20 August 2007and required the proponent to resubmit a further draft Work Plan with changes to the proposed activity and site that would allow the quarry to be worked in an acceptable manner given the location of the dwelling.

A revised draft Work Plan was re-submitted to DPI on 1 October 2007 and was endorsed on 19 December 2007.

PLANNING PROCESS

An application for a Planning Permit was lodged with the council on 8 January 2007 with the endorsed Work Plan and associated documents following on 23 January 2007. The application was referred to various bodies for comment. As indicated above however, a dwelling was approved on an adjoining property within the EPA recommended attenuation buffer to the quarry property and the DPI decided that the Work Plan should be reviewed according – this effectively suspended the planning process.

A revised Work Plan was subsequently prepared, submitted to DPI and received endorsement on 19 December 2007 and the planning process then recommenced with the application being again referred to the following authorities:

• Department of Primary Industries;
• Department of Sustainability & Environment;
• Aboriginal Affairs Victoria;
• Vic Roads;
• Catchment Management Authorities;
• Environment Protection Authority;
• Country Fire Authority;
• Australian Geological Society.

No substantive comments or objections were again received.

The application was placed on public advertising for a period of three weeks with notices sent to owners/occupiers of land in a wide radius around the application land. Copies of the application were lodged locally so as to be available for viewing locally and notices were arranged for community notice boards in areas along the proposed quarry truck routes.

A total of fifteen individual submissions were received (two being from the one household) and a petition with 67 signatories. Of the fifteen individual objections, four are associated with properties that abut the application land. Also, one objector was located 30km away from the site. The grounds of objection included issues around amenity, buffer distances, traffic, dust, blasting and fumes.

Subsequently, on 11 June 2008 the council granted the Planning Permit subject to a range of conditions. These included that the proponent conduct annual community meetings to report on the operations of the site, dust suppression measures and other matters.

Several parties, primarily owners of residences on adjoining properties, appealed the decision to VCAT on 3 July 2008. Hearings were held over 10 days in December 2008.

In response to recent criticism by VCAT at the non attendance of the DPI at its hearings, a representative from DPI attended each of the hearings and was able to assist VCAT in their understanding of DPI’s regulatory role and interactions with other statutory authorities. The applicant acknowledged the useful contribution made by DPI at the hearing.

A decision was bought down on 19 January 2009 confirming the Planning Permit subject to a range of more stringent permit conditions ‘to ensure the amenity of the neighbours and environment is protected’.

These conditions involved upgrading of access roads. Costs associated with these requirements involved road upgrading of $60,000.

TOTAL COSTS

Total costs associated with this application are as follows:

STATUS AS AT AUGUST 2009

There have been several meetings with the DPI and local council commencing immediately aft er the VCAT determination on 19 January 2009. Since that time the DPI in collaboration with the council has been considering the appropriate wording to be included in the Work Plan that would deal with the issues contained in the VCAT determination. The Work Authority was finally granted in July 2009.

The Council has approved the planning permit and the DPI has set a rehabilitation bond at $65,000 for the first stage of development. Note that In September 2009, aft er the date of the report, the key objector made an application to VCAT that the Planning Permit has not implemented the VCAT decision appropriately. The matter is ongoing

MAIN ISSUES

The main issues raised in this case study were:

i. Lack of resolve by regulatory agencies

Notwithstanding that the DPI had received the draft Work Plan for the site in October 2006, subsequently in its capacity as a referral agency it received an application to consider a development application for erection of a residential dwelling on the perimeter of a buffer zone to the proposed quarry site. DPI did not defend the proposed quarry development even though erection of the residence impacted on the draft Work Plan of the site.

The development application was subsequently approved in April 2007. As the adjoining property was within the EPA recommended attenuation buffer to the quarry property, the DPI decided in August 2007 that the Work Plan should be reviewed– effectively suspending the planning process which had begun on 8 January 2007 when the council stamped (accepted) the Planning Permit.

DPI subsequently required the Work Plan application to be amended and the application process to be re-commenced. This unfortunate sequence of events illustrates the lack of ‘buy-in’ by DPI to its own approval process.

Best practice regulatory administration would not support a proposal on the one hand and subsequently undermine it on the other.

ii. Unreasonable time in processing applications

In addition to the delays and associated costs of the need to revise the Work Plan due to the development application for a residence on the buff er zone, additional delays and costs were experienced.

This involved the planning process having to be re-commenced with associated duplication and delays with the (marginally) revised application being referred back to the referral authorities. Additional costs are incurred and more time wasted in printing numerous times the increasingly complex and thick Work Plan and associated maps for each round of referrals/approvals.

This could be more easily accommodated by electronic transfer of files rather than hard copy.

While errors are expected from time to time, when they occur it is expected that unnecessary duplication will be circumvented and the process fast-tracked and given highest priority.

Further delays caused in matching Planning Permit conditions with those on the Work Authority are causing considerable frustration.

This situation is due to the planning consent conditions giving Council approval of changes to the endorsed Work Plan rather than DPI having direct authority to approve.

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