THE NSW Government and Martins Creek Quarry should compensate Dungog Shire Council after a landmark court decision found quarry operators – including state rail agencies – unlawfully extracted and transported millions of tonnes of material over two decades, say Dungog residents.
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The council deemed “unfit” for the future by the Independent Pricing and Regulatory Authority (IPART) in 2015 gained little benefit from the unlawful operations, but incurred substantial costs in damage to roads from hundreds of truck movements per day that were not part of the original 1991 consent.
In the longest judgment in Land and Environment Court history Acting Justice Simon Molesworth Justice Molesworth found the quarry was mined significantly beyond the 5 hectare footprint of the original approval as part of a “transformation” from a railway ballast quarry into an unlawful general quarry and asphalt manufacturing business.
Now Dungog Shire residents who bore the brunt of the unlawful expansion have called on the NSW Government to compensate the shire after evidence of its long-running attempts to rein in the quarry expansion, including while it was a state-run entity.
“It is disappointing that due to the conduct of the State Rail Authority, Environment Protection Authority and more recently owner Daracon in relation to the site, that for over two decades Dungog Shire Council has had to foot the bill in lost road levies totalling millions of dollars,” Martins Creek Quarry Action Group spokesperson James Ashton said.
Muswellbrook mayor and Upper Hunter Country Labor candidate Martin Rush said the NSW Government had to respond with a compensation proposal after the judgment, which outlined how unlawful expansion of the quarry occurred many years before it was sold by RailCorp to Daracon in 2012.
Justice Molesworth agreed with the council that the quarry was restricted to 300,000 tonnes 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.
It is disappointing that due to the conduct of the State Rail Authority, Environment Protection Authority and more recently owner Daracon in relation to the site, that for over two decades Dungog Shire Council has had to foot the bill in lost road levies totalling millions of dollars.
- Martins Creek Quarry Action Group spokesperson James Ashton
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 the quarry’s history because “RailCorp refused to disclose that information”.
The company’s portrayal as “naive innocents is not credible,” he said.
“The old adage of ‘buyer beware’ is apposite. The court does not accept that the company was ignorant of the 1991 consent, nor does it accept that the company was not fully aware that it was acquiring a quarry primarily for the extraction of railway ballast, limited to specified land, with operating conditions tailored to such an enterprise,” he said.
Mr 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”.
“Not everything should be sheeted home to the present owner which is why it’s important the State Government comes to the party and sorts out safe appropriate access to and from the quarry,” Mr Rush said.
“Hauling material through Paterson and other villages on small local roads is unsafe and inappropriate. The quarry is an important provider of local jobs.”
Mr Rush said the government also needed to negotiate the cost of continued operations at the quarry – pending a new development application – on local roads.
During the NSW Government amalgamation process, while the council was criticised for taking on the expensive legal challenge to the quarry, the then Dungog mayor Harold Johnston met with government ministers to discuss the need for adequate government roads funding.
In evidence to the court Daracon argued that 60 truck movements per hour from the quarry was “within the bounds of reason”.
Justice Molesworth said the level of unlawful truck movements over many years meant it was “not surprising the road has deteriorated”.
“It is highly likely that the increase in truck movements has contributed to the poor state of the main road, and thus the further decrease in amenity in Paterson,” he said.
The Martins Creek Quarry Action Group said a new proposal for 60 trucks per hour and 280 trucks per day was “still completely unacceptable”.
A Daracon spokesperson said a road levy arrangement between RailCorp and Dungog Council, which earnt the council a sum for each tonne removed from the quarry, expired in 2012 before Daracon took over the quarry.
“Daracon anticipates that the new consents currently being applied for will address what we consider to be our corporate responsibility to make contributions towards road maintenance and other related matters,” the spokesperson said.
