MARTINS Creek Quarry owner Daracon has appealed a landmark decision in October that found quarry operators – including state rail agencies – unlawfully extracted and transported millions of tonnes of material over two decades.
The appeal was lodged on January 2 as the company seeks formal approval for quarry operations at the site and while it operates under restrictions, including that only 130 laden trucks leave the site each day, with no more than 30 laden trucks per hour.
On Thursday Daracon avoided possible closure of the quarry on January 12 by meeting conditions imposed by Land and Environment Court Acting Justice Simon Molesworth in October, including lodging a state significant development application to operate the quarry legally.
A judge on Thursday granted a three-month extension to restricted operations, after Daracon proposed reducing annual tonnage removed from the site to 449,000 tonnes per year.
A Daracon spokesperson said the company will pay Dungog Shire Council 50 cents per tonne of material extracted for the duration of the revised arrangements, after Justice Molesworth found the council gained little benefit from the unlawful operations over several decades, but incurred substantial costs in road damage from hundreds of truck movements per day that were not part of the original 1991 consent.
The new council payment “is intended to be a contribution towards road maintenance”, the spokesperson said.
In the longest judgment in Land and Environment Court history Acting Justice Simon Molesworth found the Martins Creek Quarry was mined significantly beyond a 5 hectare footprint of the original 1991 approval as part of a “transformation” from a railway ballast quarry into an unlawful general quarry and asphalt manufacturing business.
The “transformation” occurred while the quarry was operated by the State Rail Authority to provide material for railway ballast, and after RailCorp sold the site to Daracon in 2012.
Dungog Council successfully argued that the 1991 approval restricted operations to 300,000 tonnes of material extracted per year, with only 30 per cent to be transported by truck, and limited to 36 truck movements per day.
But Rail Infrastructure Corporation recorded significant increases per year so that more than 770,000 tonnes of material was produced in 2004, with more than 4.5 million tonnes of material quarried over the previous decade.
By 2014 Daracon had increased production to 900,000 tonnes per year, with an application to increase it to 1.5 million tonnes. The quarried material was used to construct Hunter road projects and involved hundreds of truck movements per day.
While the quarry under state entities went “well beyond allowed limits”, Daracon “decided to push the bounds of what was possible”, Justice Molesworth said.
The company accepted the commercial risk “at their peril, in the expectation that they might not be stopped by a small rural council, despite ongoing breaches of the planning law, on the basis that they would be seen as contributing to the local employment and so the economy”, he said.
Justice Molesworth rejected Daracon’s argument that it acquired the quarry from RailCorp with limited knowledge of its history because “RailCorp refused to disclose that information”.
The company’s portrayal as “naive innocents is not credible,” he said.
In December, 2016 Land and Environment Court Justice Terry Sheehan rejected Daracon’s bid to indefinitely defer the council’s case against the quarry, saying it had “no merit”.
There was evidence the company “virtually dismissed” serious acoustic and traffic issues raised by the council and the community.
“The respondents (Daracon companies) appear to not even accept the veracity of the community’s complaints, detailed in many affidavits from local residents,” Justice Sheahan said in his 2016 decision.
Paterson resident John McNally said Daracon had “handled this whole thing very badly”.
Residents did not want the quarry to close, but the transfer of the lease from RailCorp to Daracon in November, 2012, had had a significant negative impact on too many communities, Mr McNally said.
“These trucks run in convoys, sometimes 10 at a time, and the villages along the way just aren’t capable of coping with that intensity of movements,” he said.
In its environmental impact statement Daracon confirmed that in the 12 months between November, 2013 and October, 2014, “the existing quarry produced some 1.1 million tonnes”.
“During that period the quarry serviced some of the region’s largest infrastructure projects including Hexham rail upgrades, Nelson Bay Road upgrade and Newcastle inner city bypass,” Daracon said.
The people of Paterson remembered that time as hell, Mr McNally said.
Dungog Council was ruled “unfit” to remain a stand-alone council under the NSW Government’s controversial amalgamation process, in part because of the enormous cost of maintaining roads and bridges. The council has more than 700 kilometres of roads, 110 bridges – 38 timber – and local road and bridge costs account for nearly 50 per cent of the council’s general rates revenue.
Country Labor Upper Hunter candidate Martin Rush said the NSW Government would have to consider compensating Dungog Shire Council “for the cost over many years to its local road network given that the State Government failed to either regulate itself or subsequent owners”.
Daracon’s appeal is expected to be heard in February.