Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426 (15 August 2005)

Last Updated: 17 August 2005

NEW SOUTH WALES LAND AND ENVIRONMENT COURT



CITATION: Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning [2005] NSWLEC 426





PARTIES:

APPLICANT

Port Stephens Pearls Pty Limited



RESPONDENT

Minister for Infrastructure and Planning





CASE NUMBER: 10182 of 2005





CATCH WORDS: Development Application





LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 76A(7)(b), 79C(1)(e), s 91 s 119(1)(b)

Fisheries Management Act 1994 s 144, s 179

Marine Parks Act 1997

Environmental Planning and Assessment Regulation 2000 cl 3(1)(c)

State Environmental Planning Policy No. 14 - Coastal Wetlands;

State Environmental Planning Policy No. 44 - Koala Habitat Protection;

State Environmental Planning Policy No. 71 Coastal Development;

Port Stephens Local Environmental Plan

2000

Hunter Regional Environmental Plan;



CORAM: Talbot J



DATES OF HEARING: 27/07/05, 28/07/05 (site inspection), 29/07/05, 1/08/05, 4/08/05 (written submissions)



DECISION DATE: 15/08/2005





LEGAL REPRESENTATIVES



APPLICANT

Ms S A Duggan (Barrister)

SOLICITORS

Spiegel & Associates





RESPONDENT

Ms J M Jagot (Barrister)

SOLICITORS

Department of Infrastructure Planning and Natural Resources





JUDGMENT:





THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES



Talbot J





15 August 2005





10182 of 2005 Port Stephens Pearls Pty Limited v The Minister for Infrastructure and Planning





JUDGMENT



1 Talbot J: Following a Commission of Inquiry recommending approval of a development application lodged with the then Department of Urban Affairs and Planning on 15 November 2001, the Minister for Urban Affairs and Planning granted development consent to the continued operation of a trial lease under the Fisheries Management Act 1994 for the cultivation of pearls at Wanda Head in Salamander Bay, part of Port Stephens. The consent granted on 1 August 2002 and modified on 4 June 2003 included the operation of a land based site in Cromartys Bay.



2 On 2 December 2002 the former Minister approved a Destocking Program that provided for the cultivation and harvest of oyster stock that existed at the Wanda Head lease site at the date of the development consent granted on 1 August 2002. The approved Destocking Program provided for the continued operation of the lease site until 2 December 2005. The Wanda Head oyster lease site currently operates in accordance with the approved Destocking Program and conditions of the 2002 development consent.



3 More particularly, a further development application the subject of these proceedings was lodged with the Minister for Infrastructure and Planning (“the respondent”) by Port Stephens Pearls Pty Limited (“the applicant”) on 20 November 2003. The second development application seeks consent to establish a pearl farm in Port Stephens using sub-surface longlines at lease sites off Wanda Head, Pindimar and Mambo Creek with continued use of the land based site at Cromartys Bay.



4 The further and current development application seeks consent to the following activities:-



(a) the establishment of three oyster leases in the enclosed waters of Port Stephens at Wanda Head (12.25 hectares), Pindimar (9.0 hectares) and Mambo Creek (9.0 hectares). These leases will accommodate oysters throughout their lifecycle from spat, to grow out, to production oysters implanted with pearls;



(b) the use of up to nine (9) punts, consisting of three (3) with cleaning units installed for cleaning the oysters and six (6) work punts used for sorting and grading the oysters;



(c) continued use of the land-based facility at Cromartys Bay for administration; carparking; housing and maintenance of work vessels; storage and maintenance of equipment and waste; and harvesting, grading and treatment of pearls;



(d) operation of the aquaculture leases typically from 7:00am to 2:30pm, Monday to Friday, with potential to operate until 5:00pm during the summer months; and



(e) operation at the land-based site from 6:30am to 5:30pm, Monday to Friday and 8:00am to 5:00pm at other times, with deliveries to the site occurring after 7:00am Monday to Friday and after 8:00am at other times.



5 The development application was determined by the Minister refusing consent for the following reasons on 18 August 2004:-



a. That the sensitivity of both the development and the receiving environment and the implications of the proposal for the establishment of a Marine Park in the waters of Port Stephens warrant that no additional level of environmental risk can be tolerated.



b. That the ongoing risks associated with the proposal cannot be eliminated with any certainty; and



c. Given the above and the level of community opposition to the proposal it is not in the public interest.



6 Out of the total area of 30.25 hectares comprised within the three sites, 14.7 hectares will be stocked. The balance of the areas accommodates sub-surface infrastructure.



7 The proposed lease site at Wanda Head is further offshore than the site approved in 2002.



8 The pearl farm will grow Akoya oysters. These occur naturally in Port Stephens and produce high quality Akoya pearls. The proposal requires the establishment of the three leases in the middle section of Port Stephens and will involve growing Akoya oyster spat to a suitable size so that oysters can be seeded to produce pearls. The spat and grow out oysters will be grown in spat bags and pearls cages that are suspended from sub-surface longlines set a minimum distance of four metres below the waters surface.



9 According to the Environmental Impact Statement (“EIS”) lodged in support of the development application, oyster growth and pearl culturing typically take approximately 30 to 48 months from spat deployment to pearl harvest and in general terms go through the following phases:-



1. Hatchery phase – (1 to 2 month duration).



2. Spat Phase – (2 to 3 month duration – depending upon on the time of spawning induction).



3. Grow-out Phase – (12 to 18 month duration).



4. Conditioning and Operation Phase – (approximately 4 months).



5. On-growing phase – (approximately 12 – 18 months).



6. Harvest where the pearl is removed from the oyster.



10 Whilever the water temperature is above 17oC the oysters are cleaned and sorted on a regular basis, typically every seven to ten days. Sorting and cleaning will be done by hand on work punts at the lease site using a cleaning machine that sprays the oyster shells with water from Port Stephens. The water used will be collected, filtered and returned to the sea.



11 It is expected that 500,000 pearl oysters will be harvested each year. Pearl oyster spat are currently produced at the NSW Fisheries Research Station at Taylors Beach, Port Stephens. Spat transferred from Taylors Beach will be suspended from the longline infrastructure in 0.5mm mesh nylon bags. As the spat grow they will be transferred to larger bags and ultimately to a meshed pearl cage for growout after they have attained a size of 20mm or greater.



12 The basic longline systems will consist of a single main horizontal nylon rope anchored at each end and suspended by sub-surface floats. The minimum setup distance between the longlines will be ten metres. Each long line will be anchored with a single fixed anchor weighing between 70kg to 80kg coupled to 12 metres of 16mm chain.



13 It is proposed that the Wanda Head lease area will be used for seeded oysters. The Mambo Creek site will be used for seeded oysters, conditioning of oysters, recovery of oysters after they are operated on and for spat. The Pindimar site will be used for oyster growout and spat.



14 At Mambo Creek and Pindimar a washing punt with approximately four people on board and a work punt with up to ten people on board will be used, typically Monday to Friday. It is anticipated that only one washing punt with four people on board will be used at Wanda Head from Monday to Friday. However, additional work punts and staff may be used from time to time when oysters need to be relocated or maintenance to the sub-surface longlines is required.



The statutory controls



15 The land at Cromartys Bay is in Zone 4(a) Industrial General “A” under the Port Stephens Local Environmental Plan 2000 (“LEP 2000”). The proposed lease sites are in Zone 7(w) Environmental Protection “W” (Waterways) zone. In each of the zones aquaculture is permissible with consent.



16 The proposed development will employ up to 45 people and is accordingly state significant development pursuant to a declaration made by the Minister on 2 August 1999 under s 76A(7)(b) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”).



17 As the development requires an aquaculture permit from NSW Fisheries under s 144 of the Fisheries Management Act 1994 it is integrated development under s 91 of the EP&A Act.



18 The proposed development is designated development pursuant to cl 3(1)(c) of Schedule 3 of the Environmental Planning and Assessment Regulation 2000 (“the EP&A Regulation”). Relevantly, aquaculture is designated development where it:-



(c) ...involve[s] the establishment of new areas for lease under the Fisheries Management Act 1994 with a total area of more than 10 hectares and that in the opinion of the consent authority, are likely to cause significant impacts:

(i) on the habitat value or the scenic value, or



(ii) on the amenity of the waterbody by obstructing or

restricting navigation, fishing or recreational activities, or

(iii) because other leases are within 500 metres,



19 The proposed development is subject to the following environmental planning instruments and controls:-



· State Environmental Planning Policy No. 14 - Coastal Wetlands;

· State Environmental Planning Policy No. 44 – Koala Habitat Protection;

· State Environmental Planning Policy No. 71 Coastal Development;

· Hunter Regional Environmental Plan;

· NSW Coastal Policy 1997; and

· Port Stephens/Myall Lakes Estuary Management Plan.



20 Generally speaking the aims and objectives of each of the above instruments are consistent with an approach that maintains and sustains the economic attributes, existing habitat within and visual qualities of coastal waters including their preservation as important recreational, cultural and natural marine environments. I propose to deal with the issues taking into account those aims and objectives where relevant.



Consideration to date



21 The first development application was in respect of the small land based site and five deep water lease sites, three inside and two outside the Port. The inside leases covered an area of 32 hectares. The three lease sites within Port Stephens were at Wanda Head, Mambo Creek in Salamander Bay and Pig Station Creek, Pindimar. Pursuant to a direction made under s 119(1)(b) of the EP&A Act, the Minister directed a Commission of Inquiry to be held. The Commission found that subject to the deletion of one of the outside lease areas, the environmental aspects did not preclude approval subject to appropriate conditions of consent. As previously mentioned the Minister approved only the Wanda Head site.



22 Following lodgement of the subject development application and supporting EIS the proposed commercial pearl oyster operation was referred to Dr Daryl McPhee, Acting Director - Environmental Management Program at the University of Queensland, for independent technical advice and comments on the proposal. The review by Dr McPhee identified that further assessment of the potential ecological impacts on seagrass beds from the proposal was required and that in the event the proposal be approved a program to monitor the dynamic of assemblages of benthic macro-invertebrates at the lease sites be developed and implemented.



23 In January 2004 Harper Somers and O’Sullivan Pty Limited carried out an environmental audit of the Destocking Program to:-



o assess the environmental performance of the development, based on the environmental monitoring program required under the instrument;



o assess the compliance with the conditions of the Minister’s determination, and with its licence conditions and any other approvals from other parties; and



o recommend measures or actions to improve the environmental performance of the development and/or the environmental management and monitoring system.



24 A number of recommendations were made in relation to the future monitoring of impact upon seagrass beds in the area and fauna comprising whales and dolphins.



25 In August 2004 the Department made a recommendation to the Minister that the proposal could be undertaken within acceptable environmental limits subject to the imposition of and adherence to stringent conditions of consent to offset residual impacts.



26 Environmental consultant David Paton has been retained by the respondent to carry out an assessment of potential impacts of the pearl farm proposal on whales, dolphins and turtles. In his report he recommended that further studies are required in the Port Stephens area prior to the commencement of the proposed development to address issues in relation to potential impacts on resident bottle nosed dolphin populations and in particular the cumulative effect of anthropogenic activities such as entanglement, vessel activity (both disturbance and boat strike) habitat modification, habitat loss and/or fragmentation.



27 The Court has appointed Paul Anink, an aquatic ecologist, as a Court Appointed Expert (“CAE”) and he has provided a statement of evidence identifying the issues relevant to his area of expertise.



28 Following commencement of the hearing, Mr Paton and Mr Anink have conferred and provided a number of joint reports pursuant to the Expert Witness Practice Direction (“EWPD”).



Responses to the development application



29 In response to the public exhibition of the development application from January to March 2004 the respondent received 683 submissions including three from the Department of Environment and Conservation, NSW Maritime Authority and Port Stephens Council. In addition to a submission received from the Worimi Local Aboriginal Land Council supporting the proposal, 697 submissions were received from public and special interest groups. Two petitions were also received during the exhibition period respectively supporting and objecting to the proposal.



30 Evidence has been given by a number of objectors to and supporters of the proposal. The objectors are generally critical of the level of uncertainty and doubt regarding impacts and they display a vehement opposition based upon what is perceived to be a potentially severe impact upon the recreational and scenic values of the Port Stephens area. Conversely the supporters of the proposal refer to the economic potential in terms of employment opportunities and enhancement of the reputation of the area by positive identification with the pearl industry. Many of the persons opposed to the development regard the setting aside of the lease areas as tantamount to privatisation of an important public recreation area by creating an exclusive use zone and the alienation of maritime activities.



31 Port Stephens is reputed to attract more than one million visitors who stay in the area for more than one night, together with a significant number of day visitors thereby providing direct employment for approximately 2000 persons and a contribution of over 200 million dollars to the local economy.



The issues



32 The statement of issues provides a detailed account of the matters raised by the respondent which may be summarised as follows:-



1. The risks and potential consequences of the development.



2. The criteria to apply to the assessment of the visual impact of activities primarily related to the creation of a plume in the water generated by the cleaning and maintenance activities.



3. The alienation of deep waters within the Port in terms of perceived and actual displacement or incompatibility with other users.



4. The alleged inconsistency with the proposed creation of a marine park.



5. The weight to be given to the concerns raised by the individual submissions in response to the exhibition of the development application.



Water quality



33 Water quality is a mandatory relevant consideration under SEPP 71 Coastal Development. The issues in respect of water quality relate to impacts from concentration of organic and inorganic particulates in a confined area during the cleaning operation. The CAE Paul Anink and the respondent’s expert consultant David Paton agree that whatever impacts there are from sediment plumes they are not significant in terms of cetacean and turtle issues. Moreover Mr Anink says the current state of the waters of the central and upper Port are not pristine and have some way to go by way of improvement before they become sensitive to small perturbations in local water quality.



34 Accepting that there could be a net reduction of sediments in the water as a consequence of the removal of nutrients from the water column in the process of filter feeding by the oyster population, nevertheless there will be a concentration of particulate matter when the long lines are hauled in and the cleaning water is released back to the waterway of the Port after sorting and cleaning. The sorting and cleaning process will be continuous except during the months when water temperature is below 17oC.



35 After identifying available background water quality data Mr Anink concludes on balance in the medium and long term there would be no impacts on the water quality of Port Stephens. However, he recommends that there be further work to reduce both sources of surface plumes as much for environmental consequences as visual amenity. He is satisfied nevertheless that water quality aspects of the proposal can be managed in such a way that there would be insignificant impacts on the water quality attributes of the receiving waters and that fauna within the water column will not be adversely impacted.



36 With regard to the prospect of impacts from bio-sedimentation Mr Anink opines that the potential is likely to be different for each of the lease sites. He concludes that the pearl oyster culture aquaculture is unlikely to result in any significant impact on bio-deposition at the actual lease sites. He recognises that as the plume associated with the lease management can reduce the available light for seabed plant photosynthesis it is appropriate to monitor the health and condition of the nearest seabed plant communities to the leases. Moreover he concludes that if there were to be detectable impacts on the benthos at the three proposed sites this would most likely happen over an extended time period. That is, change would likely be slow and detectable at a point when remediation measures could be brought in, such as to leave the lease site fallow for some time. Accordingly he says:-



continued sequential sampling in the manner undertaken to date and with the number of sites retained to retain the power of the statistical testing would be sufficient to detect any possible trend towards some changes in sediment chemistry in the future.



37 Mr Anink’s conclusion in regard to the impact on seagrass beds is summarised by him as follows:-



· I conclude that the residual impact associated with protection of adjacent seagrass beds is negligible for the proposed Wanda Head and Pindimar Leases and is low for the Mambo Lease.



· I also conclude that the risk of sudden or irreversible damage to the seagrass beds adjacent to all three leases is insignificant.



38 He mentions the possibility of staging to allow assessment of the impact of sediment plumes but in oral evidence explained that such a proposal would only arise if the Court was minded to defer any final assessment in respect of the residual risk.



39 I am satisfied that the residual risk is insignificant but that as a precaution the conditions of consent shall be framed to provide for ongoing monitoring and survey of the impacts on the benthos and seagrass beds incorporating a contingency plan in the event of the detection of adverse impact.



The impact on marine life



40 The CAE Mr Anink and Mr Paton agree that the proposed pearl oyster development in Port Stephens considered on its merits, on its own (without consideration of other anthropogenic influences) will not have a significant impact on the whale, dolphin and turtle populations of Port Stephens provided that an effective and appropriate management framework can be developed to mitigate the potential impacts on turtles and to minimise the risk of entanglement of whales to the extent that the residual risk is sufficiently low. Conditions of consent have been drafted to this end and I am satisfied that they will meet the concerns expressed by the experts to minimise any residual risk.



41 I accept the agreed position of the two experts that the impact of habitat loss in spatial terms in regard to the structures within the leases on the dolphin population is not significant with respect to the viability of the population and that the risk associated with vessel traffic related to this development can be satisfactorily managed.



42 In a joint report presented by Mr Anink and Mr Paton pursuant to the Expert Witness Practice Direction (“EWPD”) they make the following statement in respect of cumulative impacts:-



1. We agree that there is a high level of risk to Port Stephens dolphin populations from the current high level of commercial and recreation vessel interactions with dolphins.



2. We strongly believe that there needs to be targeted research assessing continued reproductive success (and thus the viability) of this population of bottlenose dolphins. Based on the current data available further investigations are required on the:-



a) seasonal variation in usage patterns of bottlenose dolphins within Port Stephens



b) assess behavioural responses to Wanda Head trial lease



c) dolphin movements, surface and acoustic behaviour, and frequency of use at and adjacent to proposed lease site before during and after construction of new leases if development is approved.



3. In terms off [sic] potential cumulative impact on dolphin populations we do not agree on the level of significance:



Paton has identified that the availability of sufficient specific baseline data on bottlenose dolphins within the Port Stephens, upon which to assess the potential significant cumulative impacts of this development is not sufficient, in the light of other anthropogenic activities, (in particular commercial and recreational vessel interactions with dolphins).



Anink thinks that the project would not significantly add to the current level of risk to the dolphin population in Port Stephens.



43 It is not surprising there has been considerable argument and debate in respect of the cumulative impact issue. If the use of that area for dolphin habitat remains constant in the central port I find that the erection of the structures and carrying out of operations within the three lease areas will not give rise to any adverse impact on that habitat. The difficulty with the assessment of the potential for cumulative impact is that it does not arise directly as a consequence of the future conduct of the pearl farming operation. The real risk arises because of intensive activities associated with dolphin watching and other vessel related tourist and recreational activities, principally in the eastern port area. These activities arguably may drive the animal population into other areas such as the central and western port, notwithstanding the latter are clearly inferior habitat to the eastern area. A more intensive use of the central port following on from any depreciation of the primary habitat will not be caused by the pearl farming activities. If there is an adverse cumulative impact in the future then that will be detected by the research already being undertaken by the relevant authority and ongoing monitoring in respect of the effect of tourist and recreational activities.



44 Mr Anink identifies the main behavioural patterns of dolphins in Port Stephens consisting of travelling, feeding, milling, resting and socialising. Observations confirm that the prime use made of the central port would be travelling or transiting plus feeding. Reports show the central port is also important for at least one ‘band’ of females during the summer months. Although the dolphins are known to occur throughout the port, the use of the central port to date is limited to the activities referred to above. The erection and maintenance of structures four metres below the surface of the water is not likely to adversely impact on the use of the central port by marine animals. However the conditions of consent will require that the behavioural responses to the use of the Wanda trial lease by the local dolphin population be assessed and that monitoring continue before, during and after construction of the new leases.



45 The conditions of consent can anticipate a change in circumstances and provide for the ability of the Director General to require the proponent to take responsive action if required. However, in my opinion, the remedial action is more likely to be directed towards the amelioration and control of the tourism and recreation activities, concentrated in the eastern section of the Port. Regulation of these activities is likely to ensure that the marine population is not driven out of its preferred habitat thereby preventing or at least limiting an intensive migration into the area where the leases are situated.



46 Although Mr Paton is rightly concerned regarding the potential cumulative impacts, the trigger or cause for those impacts will not lie with pearl farming aquaculture. The real straw that may break the back of the tolerance of the bay to anthropogenic activity is more likely to be intensive whale and dolphin watching as well as general tourism and recreational boating activities. Notwithstanding the high value placed upon the tourist industry and diverse recreational pursuits in Port Stephens it is reasonable to expect that the authorities will intervene in order to regulate them as the real offending cause of any disturbance to habitat.



47 These general conclusions are supported by the following assessment made by the Department of Infrastructure Planning and Natural Resources when making a report to the Minister in respect of the proposal:-



· The proposal could be undertaken within acceptable environmental limits subject to the imposition and adherence to stringent conditions of consent to offset residual impacts. The Department notes in this regard that the revised proposals provide important environmental and ecological benefits relative to the previously refused DA.

...

· Stringent operating and management practices are likely to minimise residual impacts. As with many industrial and rural industries it will not be possible to eliminate all risk associated with the development;

....



48 Subject to the imposition of appropriate conditions that incorporate a remedial response in the event of the identification of an impact that can be attributed to the operation of the pearl leases there is no issue regarding the impact upon the habitat of marine animals that justifies refusal of consent.





Visual impact



49 It is uncontested that from time to time there will be a visible plume extending some 40 metres from the working punt as the cleaning and maintenance process progresses along the longline. The main and arguably the only relevant viewing points are from residences on the elevated parts of Wanda Head overlooking the trial lease area. The Court has the benefit of a view assisted by photographic and video evidence. The evidence is that the adoption of modified techniques for containing the washed sediment by an improved filtering process during the trial period has significantly reduced the extent of plume generated and that further modification of the plant and techniques used can achieve additional improvements.



50 Irrespective of the continuing efforts by the applicant to achieve a more satisfactory result the visual impact is essentially a discolouration of the water in a confined area within the relatively vast expanse of the waters of the port. I accept that the discolouration might create the perception of an unhealthy or offensive discharge. The fact is that initially the material comprising the plume will be extracted from or deposited out of the water column and therefore is no more than a reflection of the return of a reduced amount of the same material back into the waterbody in the form of the natural deposit cleaned from the surface of the superstructure and the oysters together with excrement from the oysters themselves.



51 I agree with the applicant’s submission that the visual impact of the process has been ameliorated by the location of two lease areas adjacent to sparsely populated areas with limited opportunity for viewing from the shoreline and in the case of Wanda Head moving the lease area further offshore than the existing trial area. The visible turbidity is unlikely to be any more perceptible or disturbing to the casual observer than turbidity caused by natural or other waterway activities.



52 Similar consequences occur as a result of natural and other causes such as wave action from wind or current, flooding of the Karuah River, boat wakes and storm action all of which change the appearance of water surface and the colour of the water. None of these are likely to be regarded as offensive or unpalatable as they can readily be seen as an inevitable and acceptable change in the pattern of the water.



53 The plume will, in my view, not be so extensive to create the impression of a major industrial activity that is antipathetic to the environment of Port Stephens. Oyster farming, fishing and recreational boating (including dolphin and whale watching) are implicit characteristics of Port Stephens. The proposed pearl farming is an intensive form of aquaculture that utilises the natural resource of the bay. It is not a form of industry unrelated or foreign to a marine environment. Although it will amount to a change within the immediate vicinity of the three leases, the presence of the plume is not in my opinion such that it justifies a refusal of the development application on the ground of its impact on visual amenity.



The precautionary principle



54 For the reasons succinctly expressed by Lloyd J in Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 the principles of ecologically sustainable development must be a factor in the consideration of a development application. See also the more recent judgment of the Chief Judge of this Court in BGP Properties Pty Ltd v Lake Macquarie City Council [2004] NSWLEC 399; (2004) 138 LGERA 237. Since the publication of my judgment in Nicholls v Director General of National Parks and Wildlife Service (1994) 84 LGERA 397 the precautionary principle, as a consequence of its formal adoption by various statutes, has become more than a “political aspiration.” The requirement in s 79C(1)(e) of the EP&A Act to take account of the public interest brings with it the obligation to have regard to the principles of ecologically sustainable development including the precautionary principle.



55 In the present case there is no real threat of irreversible environmental damage but nevertheless the decision making process needs to take account of appropriate measures to prevent environmental degradation. Such an approach is axiomatic to the proper consideration of any environmental issue.



56 The experts agree that the real issue to be confronted is the associated residual risk particularly in terms of the alleged cumulative impact on the habitat of dolphins. The application of the precautionary principle as a driving force behind the consideration of the application does not lead to a determination to refuse consent. The element of caution nevertheless dictates that the Court, as the consent authority, needs to adopt every avenue open to it in order to minimise any potential risk of an adverse impact from the proposal no matter how remotely connected or unlikely the manifestation of that risk is. Conditions requiring ongoing surveys and monitoring with appropriate built in remedial mechanisms in the event of the detection of detrimental effects reflect this cautious approach.



57 I have adopted the approach foreshadowed by the Environmental Resources and Development Court of South Australia and referred to by the South Australia Full Court decision in Tuna Boat Owners Association of SA Inc v Development Assessment Commission and Another [2000] SASC 238; (2000) 110 LGERA 1 at [35] as follows:-



... that it would consent to the proposed development only if there was a monitoring regime that would detect emerging adverse impacts and a scheme of conditions which would enable an appropriate authority to require those impacts to be averted if and when they emerged.



58 The ERD Court appears to have rejected the proposal before it. Nevertheless after adopting the principle expressed and taking account of the proposed conditions of consent, in this case I am satisfied there can be a monitoring regime that will detect any emerging adverse impacts in regard to water quality, the effect on seagrasses and the impact on marine animals (particularly the population of resident dolphins) and thus enable the appropriate authority to require them to be addressed if and when they arise



Marine park



59 The concept of marine parks is contemplated by the NSW Coastal Policy. The NSW Marine Parks Authority released a report on the Manning Shelf Marine Bioregion in 2004 which identified areas that could be considered for inclusion in any marine park for the Manning Bioregion. Port Stephens is identified as one relevant area. There has been no announcement by the government in relation to the proposal for a marine park.



60 Notwithstanding the possible creation of a marine park, NSW Fisheries has advised DIPNR that should a marine park be created it is unlikely that the proposed location of the pearl lease areas would be in any sanctuary zones because the leases are located in bare sand-mud habitat areas which are not considered to be unique or important to the Port Stephens area.



61 Mr Anink states that consent for the proposed development would not compromise the government’s ability to establish a marine park in Port Stephens. I accept his conclusion that the proposal is not incompatible with the objects of the Marine Parks Act.



62 The likelihood of the creation of a marine park is little more than a possibility. Even if a marine park is declared it is unlikely to preclude aquaculture at Port Stephens.



Alienation of deep waters and incompatibility with other users



63 Aquaculture is a permissible use within the 7(w) zone. The objectives of the zone dictate, as a consent authority, that the Court be satisfied that in its opinion there is a consistency with the aim of maintaining a balance between recreational uses and the pearl growing industry so that multiple use of the waterway is provided in a satisfactory manner.



64 The Minister refers to the effect of s 179 of the Fisheries Management Act (1994) (“the FM Act”) to develop the argument that the grant of development consent coupled with the grant of a lease for aquaculture under the FM Act will create “an inevitable exclusion zone.” I am unable to read anything into s 179 of the FM Act which goes beyond prohibiting the removal of the subjects of the aquaculture, in this case the oysters, or the structures erected for the purpose of the aquaculture activity. There is no embargo against entry onto the waters of the lease for purposes such as travelling across them or fishing. The occupation of the lease site is not an exclusive right. The main structures will at all times be at least four metres below the surface. There will be marker buoys on the four extremities on the surface of each lease site. The lines of black marker buoys used throughout the length of the longlines in the trial lease site will not be used for the development now proposed.



65 The physical operation of the lease site will be in daylight hours and it is not expected there will be more than three boats or punts working on a site at any one time during normal operations. Although the opportunity for anchoring within a site will be limited, the conditions require the applicant to consult with local recreational fishing groups to determine if courtesy moorings are required within the lease areas. The mooring points, if required, will allow for fishing over the superstructure within the four metre depth above it. By comparison with the total area of Port Stephens the placing of a constraint upon (but not prohibition against) the use of a total area of 30.25 hectares with only 14.7 hectares stocked is not an unreasonable limitation of the use of the whole Port.



66 The Royal Volunteer Coastal Patrol has raised a number of issues regarding the prospect of difficulties being encountered during rescue operations within the lease areas particularly at night in adverse weather conditions. I can readily appreciate these concerns if the proposed leases are to be structured in the same way as the Wanda trial area that incorporates the placing of black marker buoys at regular intervals on the surface along the line of the cables running below. I do not discount that the skipper of a Patrol vessel may need to keep a close watch on the proximity of the marker buoys. However that should not amount to more complex manoeuvres than those already involved with existing moorings installed throughout the Port and which the Divisional Commander of the Royal Coastal Patrol has acknowledged are not generally a problem. The marker buoys on the periphery of the lease areas will be lit at night and will not be located in close proximity to any other hazard. In particular they will not be used as regular mooring points.



67 To overcome any residual concern regarding liability for damage to underwater infrastructure or buoys during a rescue operation the applicant expressly consents to interference by any emergency service including the Royal Volunteer Coastal Patrol where such is reasonably necessary in order to deal with a threat to life or property.



68 I am not satisfied that the respondent or its witnesses have raised an issue sufficiently in this regard to the extent that a refusal of the application for consent is appropriate.



Objections to the application



69 Judging by the volume of objections lodged in respect of the proposal there can be no doubt it has attracted significant attention from residents and various other persons who have an interest in the quality of the environment in the Port Stephens area. I am satisfied that the concerns experienced are a reflection of the honest and true belief of the persons who presented them. However many are repetitive and uninformative in relation to the basis for the belief. Nevertheless many are articulate, detailed and instructive about the nature of the specific objections raised.

70 On the other hand a corresponding number of submissions have been received in support of the application.



71 Each one of the submissions has been closely considered and taken into account prior to the determination of this appeal. Many of the concerns have been allayed by the evidence presented to the Court by experts and others will be satisfied by conditions of consent. The trial at Wanda Head has provided an insight into the proposal and afforded an opportunity for operations to be modified to provide a better result in terms of impact upon the environment.



72 Whether or not there will be an adverse effect on amenity is a question of fact to be determined by the consent authority, in this case the Court. Although some of the conclusions by a consent authority may entail a subjective consideration, this nevertheless is carried out objectively in the weighing process. The community response to a proposal must be taken into account as part of the consideration of the public interest pursuant to s 79C(1)(e) of the EP&A Act. However, where the opinions expressed are not supported by evidence objectively expressed by experts in a particular field of expertise, then the views of those who do not have the essential expertise will be given little or no weight or, at the most, less weight than the expert opinion.



73 It would be a political exercise to give determining weight to the number of objections based solely on the quantitative value of that evidence. That is not a value this Court is entitled to adopt.



74 In this case there is the further factor that the submissions received are more or less balanced for and against the proposal. This is best demonstrated by the submissions on the alleged impact of the proposal on tourism. Many objections were motivated by a perceived interference with the habitat of the dolphins and a feared consequential loss of the attraction of the presence of these animals to tourists whereas on the other hand some supporters of the proposal identified the advent of a pearl growing industry as a tourist attraction for the area. I have not been satisfied that the development of a pearl farm will relevantly or materially adversely impact upon the habitat of the dolphin population or other marine animals and accordingly the support for the proposal on account of a more diverse tourist activity weighs more heavily in favour of the project in that respect.



75 Based upon the whole of the evidence I am satisfied that the fears and expectations of the doubters are not likely to materialise or if they do adequate regulation will be imposed. Therefore, notwithstanding the large numbers of objectors the pearl farming leases are entitled to the benefit of a conditional development consent on the basis that the many issues raised have been discounted, resolved or made the subject of conditions.



The conditions of consent



76 A set of conditions have been drafted principally by those persons assisting the Minister but with a degree of assistance from the experts Messrs, Paton and Anink and I presume those advising the applicant. The remaining area of dispute between the parties in is a very narrow compass.



77 Generally speaking the conditions provide a framework for ongoing monitoring and testing in respect of issues arising in the course of the hearing as follows:-



· water quality, particularly turbidity and total suspended solids;



· seagrass beds within the vicinity of the development;



· dolphin monitoring to assess any changes in dolphin behaviour as a result of the development;



· substrate chemistry.



78 Conditions referred to earlier have been included and are intended to be satisfactory for the purposes identified. The applicant raised three issues, namely:-



· The period within which the infrastructure associated with the current trial operation at Wanda Head is to be removed be increased from a period of four weeks (as per condition 1.8) to eight weeks. The additional period is said to be required so as to accommodate exigencies associated with the employment of contractors and the weather. The respondent is of the view that four weeks is ample time to carry out the necessary arrangements. The additional four weeks does not appear to be critical in respect of any environmental issue.



· An alleged discrepancy between condition 1.6 which provides that maximum stocking density is restricted to that identified in section 2.5.3 of the EIS (namely 6.9 tonnes per hectare) and condition 4.6 that stipulates there shall be only one panel net and three cages for each dropper on a longline. The applicant claims the latter equates to 4.8 tonnes per hectare. The applicant therefore submits that the condition be amended to allow “two panel nets and five pearl cages” so that the density is equivalent to 6.9 tonnes per hectare. The respondent however does not understand this condition to remain in dispute and points out that two panel nets and five pearl cages have not been the subject of any assessment or evidence. The applicant has not made any further submission in this respect. Condition 4.6 allows for an increase in the number of panel nets or cages if the Director General agrees.



· The insertion of paragraph (d) in condition 8.3 which according to the applicant was not required by the experts. The applicant says, without evidence to support the statement, that the additional obligations are likely to be extremely onerous in respect of time and cost. The respondent says that the condition is appropriate and that it reflects the intention of the agreement by the experts. I agree with the respondent.



79 The conditions have been revised in minor respects to provide for what I believe to be a more rigid framework for reactive procedures in the event the Director General sees fit to serve a compliance notice as a consequence of testing or monitoring results or observed breaches. In this respect the most relevant conditions are 2.5 (generally), 7.1, 7.2, 7.3, 8.1 (Water Quality), 8.2 (Seagrasses), 8.3 to 8.7 (Dolphins), 8.8 (Benthic Fauna), 8.9 (Substrate) and 11.3 (Annual Performance Reporting).



80 Conditions required by the Department of Primary Industries have been incorporated as conditions of approval for integrated development.



Conclusion



81 Having regard to the whole of the evidence and for the reasons outlined above I am satisfied the proposed development can be approved. The conditions will provide appropriate ongoing monitoring, assessment and regulation of impacts from potential residual risks or relevant change of circumstances.



82 The orders of the Court are:-



1. Development Application number DA-481-11-2003-i for the establishment and operation of a pearl oyster farm industry in Port Stephens at Wanda Head, Pindimar, Mambo Creek and Cromartys Bay is determined by the granting of consent subject to the conditions attached and marked “A”.



2. Exhibits may be returned.

-------oOo-------

Annexure “A” to judgment in Matter No. 10182 of 2005 –

Port Stephens Pearls Pty Limited v Minister for Infrastructure and Planning

KEY TO CONDITIONS

1. GENERAL 3

Scope of Development 3

Period of Development Consent 3

Surrender of Consent 4

Provision of Documents 4

Statutory Requirements 4

Dispute Resolution 4

Demolition 4

2. COMPLIANCE 5

3. CESSATION OF WORKS AND SECURITY AND LIABILITY PROVISIONS 6

4. AQUACULTURE LEASE INFRASTRUCTURE – GENERAL PROVISIONS 7

5. LAND-BASED SITE – GENERAL PROVISIONS 9

6. UTILITIES AND PUBLIC WORKS 9

7. ENVIRONMENTAL PERFORMANCE 9

Water Quality 9

Flora and Fauna 11

Noise Impacts 12

Disease Impacts 13

Waste Generation and Odour Management 13

Boat Numbers and Movements 14

Hazards and Risk 14

Visual Amenity 15

8. ENVIRONMENTAL MONITORING AND AUDITING 15

Water Quality Monitoring 15

Flora and Fauna Monitoring 16

Substrate Monitoring 19

Independent Environmental Auditing 20

9. COMMUNITY INFORMATION, CONSULTATION AND INVOLVEMENT 20

Complaints Procedure 20

10. ENVIRONMENTAL MANAGEMENT 21

Environmental Representative 21

Construction Environmental Management Plan (CEMP) 21

Operation Environmental Management Plan (OEMP) 23

11. ENVIRONMENTAL REPORTING 27

Incident Reporting 27

Annual Performance Reporting 27

APPENDIX A – DECLARED DISEASES 28

APPENDIX B – PART 3A PERMIT GENERAL CONDITIONS 29

In this consent, except in so far as the context or subject-matter otherwise indicates or requires, the following terms have the meanings indicated:

Act Environmental Planning and Assessment Act, 1979

AEMR Annual Environmental Management Report

Applicant Port Stephens Pearls Pty Ltd

aquaculture lease a lease issued by the Minister for Primary Industries under section 163 of the Fisheries Management Act 1994 to permit an area of public water to be used for aquaculture

aquaculture permit a permit issued under section 144 of the Fisheries Management Act 1994 for the development

construction any activity requiring a Construction Certificate or any construction related activity as described in Development Application No. DA-481-11-2003-i

Council Port Stephens Council

DEC Department of Environment and Conservation (incorporating the NSW Environment Protection Authority and NSW National Parks and Wildlife Service)

Department NSW Department of Infrastructure, Planning and Natural Resources (DIPNR)

Destocking Program program approved by the Minister on 2 December 2002 in relation to the determination issued for DA-318-11-2001-i

development the development to which this consent applies

Director-General Director-General of the NSW Department of Infrastructure, Planning and Natural Resources, or delegate

EIS Environmental Impact Statement for the pearl oyster farm entitled Proposed Pearl Farm, Environmental Impact Statement Volumes 1 and 2, dated November 2003 and prepared by Umwelt Australia Pty Ltd

fish unless otherwise specified, eggs, milt, larvae, juveniles and adults of the species authorised by an aquaculture permit

land-based site part of the area to which this consent applies, specifically the land identified as 7-9 Diemars Road, Cromartys Bay (refer condition 1.1)

Minister NSW Minister for Infrastructure and Planning, or delegate

operation any activity that results in the culture, or intended culture, packaging, storage and distribution of commercial quantities of pearls

Principal Certifying Authority the Minister or an accredited certifier, appointed under section 109E of the Act, to issue a Part 4A Certificate as provided under section 109C of the Act

Regulation Environmental Planning and Assessment Regulation, 2000

POEO Act Protection of the Environment Operations Act, 1997

site the land to which this consent applies, that includes the aquaculture leases and land-based site

water-based sites part of the area to which this consent applies, specifically the three aquaculture leases within the enclosed waters of Port Stephens, identified in the EIS as the Wanda Head, Pindimar and Mambo Creek leases and at condition 1.1

1.



GENERAL



Scope of Development

1.1 This consent permits the construction and operation of a Pinctada imbricata (pearl oyster) aquaculture farm comprising the following components:

a) water-based sites (generally identified in Figure 1.2 of the EIS), located at:

i) Wanda Head with an aquaculture lease area of 350 metres X 350 metres ([414042,6379812],[414392,6379819],[414399,6379469],[414049,6379463]);

ii) Mambo Creek with an aquaculture lease area of 300 metres X 300 metres ([415061,6379174],[415303,6378995],[415124,6378754],[414883,6378933]); and

iii) Pindimar with an aquaculture lease area of 300 metres X 300 metres ([414782,6382843],[415081,6382811],[415048,6382513],[414751,6382545]); and

b) land-based site located at 7-9 Diemars Road, Cromartys Bay (Lot 53 DP 260211 and Lot 637 DP 27664).

The coordinates system used to identify each point on the leases is MGA56. The coordinates are identified in a clockwise manner commencing with the NE corner of each lease area.

1.2 The Applicant must carry out the development, specifically, in relation to hatchery production and larval rearing; juvenile rearing; growout production; implantation operation; ongrowing of implanted oysters; and harvesting generally in accordance with section 2.4 of the EIS and as may be modified by the conditions of this consent, and as provided in additional information provided to the Department from the Applicant dated 22 March 2004.



1.3 In the event of an inconsistency between the conditions of this consent and the sections of the EIS incorporated in the conditions of consent, the conditions of this consent shall prevail to the extent of the inconsistency.



1.4 To avoid any doubt, this consent does not:

a) authorise any other aquaculture leases not the subject of this development consent to undertake juvenile rearing, growout, or on-growing of Pinctada imbricata for the purposes of using this oyster stock for the commercial production of pearls; or

b) authorise the establishment of a tourist-associated component to the development.

Separate approval(s) under the Environmental Planning and Assessment Act 1979 or any other relevant legislation may be required for these other activities.



1.5 The Applicant is restricted to the commercial culture of Akoya pearls from the oyster species Pinctada imbricata at the site.



1.6 The maximum stocking density and maximum biomass of Pinctada imbricata within the aquaculture leases at any one time is restricted to that identified in section 2.5.3 of the EIS (page 2.10).



Period of Development Consent

1.7 This development consent ceases to authorise the carrying out of the development fifteen (15) years after the date on which the first aquaculture lease is issued under section 163 of the Fisheries Management Act 1994 for the development is granted.









Surrender of Consent

1.8 This development consent authorises the continued operation of the aquaculture lease at Wanda Head as it relates to and in accordance with the determination of DA-318-11-2001-i issued by the Minister on 1 August 2002 and as modified on 4 June 2003 until the date which is 8 weeks after the completion of the background survey required under condition 8.3 of this consent, to the satisfaction of the Director-General. During this 8 week period, all development and infrastructure associated with the aquaculture operation at Wanda Head (under DA-381-11-2001-i) must be removed in accordance with the Destocking Program that was approved by the Minister on 2 December 2002.



1.9 Within 4 weeks of the commencement of any construction activities associated with this development at the water-based sites or completion of the background survey required under condition 8.3, whichever is the sooner event, the Applicant must surrender all existing development consents associated with the sites in accordance with Clause 97 of the Environmental Planning and Assessment Regulation (2000) and must cease operation at the existing Wanda Head lease.



Provision of Documents

1.10 Where practicable, the Applicant must provide all documents and reports required to be submitted to the Director-General under this consent in an appropriate electronic format. Provision of documents and reports to other parties, as required under this consent, must be in a format acceptable to those parties and must aim to minimise resource consumption.



Statutory Requirements

1.11 The Applicant must ensure that all licences, permits and approvals required for the development are obtained and kept up-to-date as required throughout the life of the development. No condition of this consent removes the obligation for the Applicant to obtain, renew or comply with such licences, permits or approvals.



1.12 An aquaculture permit under section 144 of the Fisheries Management Act 1994 is required by the Applicant for the culture of Pinctada imbricata (pearl oyster) on aquaculture leases in Port Stephens as described in the EIS.



1.13 A permit to cut, harm, damage or otherwise destroy marine vegetation must be obtained from the NSW Department of Primary Industries under Section 205 of the Fisheries Management Act 1994.



1.14 The Applicant must not undertake any work within 40 metres of any Protected Waters, unless it has first obtained any necessary approvals under part 3A of the Rivers and Foreshores Improvement Act 1948 from the Department and has complied with the conditions specified in Appendix B of this consent.



Dispute Resolution

1.15 In the event that a dispute arises between the Applicant and Council or the Applicant and a public authority other than the Department, in relation to a specification or requirement applicable under this consent, the matter shall be referred by either party to the Director-General, or if not resolved, to the Minister, whose determination of the dispute shall be final and binding on all parties. For the purpose of this condition, "public authority" has the same meaning as provided under section 4 of the Act.



Demolition

1.16 The Applicant must undertake all demolition work at the land-based site strictly in accordance with AS 2601-1991 The Demolition of Structures.



2. COMPLIANCE



2.1 Prior to the commencement of construction, the Applicant must put in place a management system to establish a framework for the training of employees in environmental management and the operation of various boats and equipment associated with the development, to enhance general awareness of environmental issues and obligations and take reasonable steps, to ensure that employees, contractors and sub-contractors are aware of, and comply with, the conditions of this consent relevant to their respective activities. In particular, the Management System must include, but not necessarily be limited to an Environmental Training Program that includes:

a) identification of relevant employment positions associated with the development that have an operational or management role related to environmental performance;

b) process for implementing new developments/amendments to the operation of the development;

c) process to ensure that employees follow best management practices and procedures for cleaning operations;

d) ensure appropriate conduct is followed on the boats, particularly towards other water users and when works are being undertaken near any land, such as Wanda Head;

e) procedures to ensure boat speed limits are followed;

f) to increase awareness of environmental issues associated with the proposal;

g) provide awareness of the requirements of the conditions and licences, such as periods of dolphin calving;

h) details of appropriate training requirements for relevant employees;

i) a program for training relevant employees in operational and/ or management issues associated with environmental performance; and

j) a program to confirm and update environmental training and knowledge during employment of relevant persons.



2.2 The Applicant must be responsible for the works the subject of this consent and the environmental impacts that may result from those works, and must put in place an environmental management system governing the conduct of all persons on the site, including contractors, subcontractors and visitors.



2.3 Prior to the commencement of each of the events listed from a) to b) below, or within such period otherwise agreed by the Director-General, the Applicant must certify in writing to the satisfaction of the Director-General that it has complied with all conditions of this consent applicable prior to the commencement of that event.



Where an event is to be undertaken in stages, the Applicant may, subject to the agreement of the Director-General, stage the submission of compliance certification consistent with the staging of activities relating to that event. The events referred to in this condition are as follows:

a) construction of the development; and

b) operation of the development.



2.4 Notwithstanding condition 2.3 of this consent, the Director-General may require an update report on compliance with all, or any part, of the conditions of this consent. Any such update must meet the reasonable requirements of the Director-General and be submitted within such period as the Director-General may agree.



2.5 The Applicant must meet the requirements of the Director-General in respect of the implementation of any measure reasonably necessary to ensure compliance with the conditions of this consent. The Director-General may only direct that such a measure be implemented in response to the information contained within any report, plan, correspondence or other document submitted in accordance with the conditions of this consent and within such time as the Director-General shall nominate.

3. CESSATION OF WORKS AND SECURITY AND LIABILITY PROVISIONS



3.1 Upon the cessation, cancellation, forfeiture or termination of the aquaculture permit, as indiciated by written notice of the Director-General of the NSW Department of Primary Industries, the Applicant must ensure that the water-based sites are cleared of all infrastructure associated with the development within 60 days, or as otherwise agreed with NSW Department of Primary Industries. The full monetary cost associated with this removal shall be borne by the Applicant.



3.2 The Applicant must remove all aquaculture lease infrastructure, where required under conditions 3.1 or 8.5 of this consent and prior to the expiry of the fifteen (15) year period referred to in condition 1.7, in accordance with a Decommissioning Management Plan. The Plan must be prepared in consultation with NSW Department of Primary Industries and NSW Maritime Authority and be submitted for the approval of the Director-General no later than 6 months after the commencement of operation of the development. The Plan must include, but not necessarily be limited to:

a) a schedule for the orderly removal of the aquaculture lease infrastructure;

b) procedures for the notification of the boating public, NSW Maritime Authority and any other relevant Government agency, of the requirement to remove the aquaculture lease infrastructure, including the timing of removal;

c) procedures to be implemented for the safe removal of all aquaculture lease infrastructure from the aquaculture lease areas; and

d) procedures to notify the boating public during the activities associated with the removal of all aquaculture lease infrastructure from the aquaculture lease areas.



3.3 The Applicant must be responsible for any damage to property or injury to persons or a third party arising from any infrastructure/ equipment or part thereof, or any other aquaculture structure used in or in connection with the development, moving or breaking away for any reason from its designated mooring site (refer to conditions 4.1 to 4.3).



3.4 The Applicant must maintain throughout the life of the development, public liability insurance of $10 million (or any other amount as otherwise specified by the Director-General of NSW Department of Primary Industries by notice in writing to the Applicant) covering the area described under the aquaculture permit, to cover any potential public liability claims due to the operation of the development and to indemnify the State of New South Wales, Minister for Primary Industries and their servants and agents against any such claims.



Annually or upon request, the Applicant must provide documentary evidence of the public liability insurance that shows the name of the insurer, the nature and level of indemnity, the currency of the cover and the policy number.



3.5 The Applicant must enter into, and maintain, one of the following security arrangements:

a) the depositing with the Minister for Primary Industries by the Applicant of the required cash amount to secure the due performance of the Applicant’s payment obligations under the Fisheries Management Act 1994; or

b) a guarantee issued by a bank, building society or credit union, or by a corporation authorised to carry on insurance business in Australia, guaranteeing to indemnify the Crown to the extent of the required amount to secure that performance; or

c) a financial arrangement approved by the Minister for Primary Industries under which a corporation of which the Applicant is a member agrees with the Minister for Primary Industries to indemnify the Crown to the extent of an amount specified in the agreement to secure that performance.



3.6 The Applicant may choose which security arrangement (identified under condition 3.5) is to be entered into and may, subject to the concurrence of the Minister for Primary Industries, change the chosen arrangement to another arrangement at any time while the aquaculture permit is in force.

4. AQUACULTURE LEASE INFRASTRUCTURE – GENERAL PROVISIONS



4.1 The Applicant must comply with the specifications and design plans for the aquaculture lease infrastructure (including but not limited to panel nets, pearl cages and spat bags), as generally described in Figures 2.1 and 2.2 and section 2.5.1 of the EIS, or as modified by this consent or the Director-General of NSW Department of Primary Industries.



Each of the three leases will have around 25 longlines. Longlines will be set a minimum of four metres below the lowest astronomical tide and at least 10 metres apart. Each section of longline supporting aquaculture infrastructure will be between 200 and 250 metres in length. Breast lines will also be installed to aid in the alignment of the cultivation equipment and to minimise the risk of the longline coming adrift should an anchor become adrift. The breast lines will be located approximately 2 metres below the longline at a distance of approximately 36 metres apart. The proposed pearl oyster leases will occupy a total area of 30.25 hectares in water ranging in depth from 7 to 16 metres.



4.2 Notwithstanding condition 4.1, the Applicant must notify and seek the approval of the Director-General and Director-General of NSW Department of Primary Industries for any proposed alteration or variation to the specifications referred to under condition 4.1. The Applicant must not commence any of these works except with the prior written approval of the Director-General and Director-General of NSW Department of Primary Industries.



The Applicant may undertake emergency modifications in response to particular situations and then seek the endorsement of the Director-General and Director-General of NSW Department of Primary Industries after the event.



4.3 During operation, all aquaculture infrastructure within the aquaculture lease area (including but not limited to sub-surface longlines, panel nets, pearl cages) must be set a minimum distance of four (4) metres below the water surface at the lowest astronomical tide (LAT), except during those times as identified in the Operational Environmental Management Plan under condition 10.4 g).



4.4 For the purposes of section 179 of the Fisheries Management Act 1994, where reasonably necessary in order to avoid a threat to life and/ or property, the Applicant shall consent to the removal, injuring or interfering with both the cultivation within the water-based sites and in the infrastructure used for that cultivation in the water-based sites, by any emergency service, including the Royal Coastal Volunteer Patrol.



4.5 The aquaculture lease infrastructure must be designed, constructed, operated and maintained such that it is aligned with the main current flow direction to minimise the load placed on the infrastructure and to minimise reduction in current flow velocity.



4.6 For each dropper on a longline, there must be not more than:

a) one (1) panel net containing seeded oysters; or

b) three (3) pearl cages containing growout oysters,

at any one time, or as otherwise agreed with the Director-General.



4.7 No surface buoys, other than those permitted under condition 4.10 of this consent, are permitted within the aquaculture lease areas.



4.8 The surveying and setting out of the aquaculture leases must be conducted in accordance with the Surveyors (Practice) Regulation 1996. Any survey made without the usual requirements for strict accuracy must comply with clause 29 of that regulation and be conducted to ensure a level of accuracy of ± 1.0 metres for each point. The coordinates for each point included in a survey must be expressed in GDA94/ UTM coordinates, or another coordinate system suitable to NSW Department of Primary Industries.



4.9 All farming infrastructure associated with the construction and operation of the aquaculture leases must be appropriately moored within the designated lease area and in a manner acceptable to NSW Department of Primary Industries. No part of the farming infrastructure or other obstructions associated with the development shall project beyond the boundaries of the designated lease areas.



4.10 Navigation Marks indicating the corners of the aquaculture leases must be Lit Special marks of a size and design specified by and to the satisfaction of the NSW Maritime Authority and must comply with the IALA (International Association of Lighthouse Authorities) Buoyage System.



4.11 The Applicant must clearly display within the aquaculture lease area, appropriate signage or other measure(s) suitable to the NSW Maritime Authority:

a) to notify watercraft of the presence of aquaculture infrastructure; and

b) to notify watercraft that the maximum depth within the aquaculture lease area is four (4) metres; and

c) to notify watercraft during cleaning operations on the aquaculture leases, that ropes within the lease area will be raised.



4.12 The Applicant must clearly display the lease and permit number at opposite corners of the aquaculture leases (that is, in at least two positions on each lease) throughout the life of the development. The numbers must have characters not less than 10 cm high in a contrasting colour to the background colour of the sign.



4.13 The Applicant must remove the two (2) existing starboard navigation piles at Pindimar and replace them with two (2) lit navigation buoys. The location, design and installation of the navigation buoys must be undertaken in accordance with the requirements and to the satisfaction of the NSW Maritime Authority.



4.14 Within two months of the commencement of construction of the development, the Applicant must consult with local recreational fishing groups to determine if courtesy moorings within each of the aquaculture leases are required and further, where any such moorings should be located and provide the Director-General with the results of such consultation. Should any outcome of consultation with local recreational fishing group(s) indicate that such moorings have been requested, the Applicant must submit documentation for the approval of the Director-General and Director-General of NSW Department of Primary Industries showing the location(s) of any proposed mooring(s) and written evidence of the local recreational fishing group(s) satisfaction with the proposed location(s) of the proposed mooring(s).



4.15 Should the Director-General and Director-General of NSW Department of Primary Industries approve the location(s) of some or all of the proposed mooring(s), the Applicant must install these courtesy mooring(s) at its cost within one month of receipt of that approval, to the satisfaction of NSW Department of Primary Industries and the NSW Maritime Authority.



4.16 All infrastructure associated with the development must be regularly maintained and repaired such that all aquaculture leases are kept in a neat and tidy condition. Details of the maintenance program are to be provided in the Operational Environmental Management Plan required under condition 10.4 of this consent.



4.17 Prior to the commencement of construction of the aquaculture leases, the Applicant must consult with and advise other boat users of the Port of the presence of the aquaculture lease areas and of any navigational and safety restrictions that may apply. The boats users required to be consulted must include, but not be limited to: local sailing clubs, recreational and commercial fishing clubs, local tourist boat operators, the local Volunteer Coastal Patrol and the NSW Water Police.



4.18 At least one month prior to the commencement of construction of each aquaculture lease, the Applicant must provide suitable notification to the local community of the schedule of installation of each aquaculture lease. The notification must include notices in the relevant local newspaper(s) circulating in the Port Stephens and Great Lakes local government area.





5. LAND-BASED SITE – GENERAL PROVISIONS

5.1 The Applicant must design, construct, operate and maintain the land-based site generally in accordance with the site layout indicated in Figure 4.14 and building and boat ramp design indicated in Figures 4.15 to 4.18 inclusive, as shown in the Environmental Impact Statement “Port Stephens Pearl Oyster Industry – Environmental Impact Statement, Volumes 1 and 2” and prepared by Umwelt (Australia) Pty Ltd, dated November 2001, for Development Application No. DA-318-11-2001-i.



5.2 The land-based site is to be used for administration; carparking; housing and maintenance of work vessels; storage, maintenance and repair of equipment, storage and handling of the waste; and harvesting, grading and treatment of pearls associated with the development, as generally described in section 2.6 of the EIS, dated November 2003.





6. UTILITIES AND PUBLIC WORKS



6.1 Prior to the commencement of construction, the Applicant must provide written evidence from the relevant service authority (or a suitable certified or accredited person) that satisfactory arrangements have been made for the supply (including any necessary easements) of reticulated electricity, telephone services and natural gas to the land-based site.



6.2 The Applicant must identify (including, but not limited to the position and level of service) all public utility services on the site, roadway, nature strip, footpath, public reserve or any public areas that are associated with, and/or adjacent to the site, and/or are likely to be affected by the construction and operation of the development.



6.3 The Applicant must consult with the relevant provider of the utilities identified in condition 6.1 and make arrangements to adjust and/or relocate their services as required. The cost of any such adjustment and/or relocation of services must be borne by the Applicant.



6.4 Prior to commencement of construction, the Applicant must provide documentary evidence from the utility providers identified in condition 6.1, to the Director-General, confirming that their requirements have been satisfied.



6.5 Any damage caused to public infrastructure as a result of the development must be repaired to the satisfaction of Council, or relevant utility provider and within such period as specified by the Council, or relevant utility provider.





7. ENVIRONMENTAL PERFORMANCE



Water Quality

7.1 The Applicant must design, construct, operate and maintain the development to ensure that the discharge of wash water to waters only occurs from the discharge point(s) located on the cleaning boats (as identified in the EIS) and that for each discharge point(s), the wash water returned to the Port is discharged to a depth of at least four (4) metres.



For the purposes of this consent, “wash water” refers to the water that is generated by the cleaning of the oysters and associated apparatus on the cleaning punts which is then returned to the waters of Port Stephens.

7.2 To protect the aesthetic quality of the waters of Port Stephens, the Applicant must ensure that:

a) at the surface adjacent to the point of discharge from the washing operations, (as permitted by condition 7.1), the quality of waters returned to the Port (in terms of turbidity and total suspended solids) following cleaning operations does not exceed the ambient water quality of the surrounding water by greater than 20%; and

b) during activities associated with the washing of the oysters and associated lease infrastructure, the Applicant must ensure that at a distance of not more than forty (40) metres from the associated cleaning boat (with gradual improvement as per the Protocol in condition 7.3), the development complies with the relevant visual clarity and colour parameters of the ANZECC (2000) Guidelines for recreational water quality and aesthetics (primary contact).



The ANZECC (2000) Guidelines refer to the ANZECC document Australian and New Zealand Guidelines for Fresh and Marine Water Quality 2000.



7.3 Prior to the commencement of operation of the development, the Applicant must prepare and implement, to the satisfaction of the Director-General, a Cleaning Punt Protocol to provide a framework for the management of cleaning operations associated with the development. The Protocol must: identify the cleaning operations that will be undertaken as part of this development that incorporate best management practices; include details of on-going investigations into improvements of the cleaning punt(s) and associated equipment and operations, particularly with an aim to reduce the distance from the boat at which the ANZECC (2000) Guidelines can be met; provide details on the adoption of any such improvements; and identify contingency measures should any unexpected or major plume events occur.



The Protocol must consider the cleaning procedures currently undertaken on the existing lease, the measures reported in section 2.5.5 of the EIS and as provided in additional information provided to the Department from the Applicant dated 22 March 2004.



As part of the Protocol, the Applicant must provide a report to the Director-General every six months from the date of commencement of operation for the first year of operation, and every twelve months thereafter, or as otherwise agreed to by the Director-General, detailing the nature and results of such investigations, a timeframe for the implementation of any such improvements and details of the revised distance at which the development will comply with the ANZECC (2000) Guidelines referred to in condition 7.2.



Erosion and Sediment Control

7.4 The Applicant must install appropriate erosion and sediment controls at the land-based site throughout the life of the development to ensure any potential erosion and sediment related impacts are adequately managed, to the satisfaction of the Department.



7.5 Any fill material brought to the land-based site must be Virgin Excavated Natural Material (VENM).



7.6 The Applicant must design, construct, operate and maintain the development in a manner that minimises or prevents the emission of dust from the site, including wind-blown and traffic-generated dust.



Site Drainage and Stormwater

7.7 The construction and operation of the development must not concentrate or lead to an increase in the volume or rate of flow of stormwater discharged from the land-based site over and above the pre-development flow conditions.



7.8 Where stormwater discharge from the land-based site is proposed in any location other than existing drainage lines, the Applicant must create or have created any easements over the downstream connection point(s) such that the stormwater can legally be drained from the land-based site.



7.9 The Applicant must ensure that any contaminated runoff from the fuel point, and any other contaminating sources, is processed to best practice standard such that when discharged from the site, the quality of any runoff is no less than that of the pre-development situation.



7.10 The Applicant must design, construct, operate and maintain a rainwater tank (or combined capacity of tanks) to service the development, in accordance with the reasonable requirements of the Director-General. An instrument issued under section 88B of the Conveyancing Act 1919 creating a restriction as to user over the tanks on the site must be obtained, prior to the issue of the final occupation certificate.



Flora and Fauna

7.11 Only seagrasses within the footprint of the propose boat ramp, as detailed in the plans published in the Environmental Impact Statement “Port Stephens Pearl Oyster Industry – Environmental Impact Statement, Volumes 1 and 2” prepared by Umwelt (Australia) Pty Ltd, and dated November 2001, may be cut, damaged, or otherwise destroyed.



7.12 Prior to the commencement of construction of the development, the Applicant must install suitable propeller guards on all boats associated with the development, to prevent the possibility of propeller-strike on marine fauna.



7.13 Vessel based activities associated with the dolphin monitoring program required under condition 8.3 must be minimised as far as practicable to limit the interactions between these vessels and dolphins.



7.14 The Applicant must install a hydrophone array, or similar equipment, at the Wanda Head aquaculture lease area to assist in tracking the usage by dolphins and other marine mammal fauna of the lease area and surrounds, and as generally described in section 6.5.2 of the EIS.



Entanglement

7.15 The Applicant must take all reasonable action to remedy, alleviate, or reduce the incidence of entanglement, or to assist fauna which have been entangled or adversely impacted by the development.



7.16 At least one month prior to the commencement of construction, or as otherwise agreed with the Director-General, the Applicant must prepare, in consultation with the DEC and the NSW Department of Primary Industries, and submit for the approval of the Director-General, an Entanglement Protocol. The Protocol must be consistent with that included in the EIS and must include, but not necessarily be limited to:

a) identification of the roles and responsibilities of staff in relation to any entanglement incidents;

b) identification of materials and activities associated with the development that have the potential to impact on fauna;

c) protocols for how the materials and activities associated with the development are to be managed to prevent or minimise impacts;

d) procedures for the monitoring of the lease site for the presence of any entangled fauna, including responsibility and frequency of monitoring;

e) procedures to be undertaken in the event of an entanglement, or suspected, entanglement incident, including measures to release the trapped animal and procedures to notify relevant government agencies or special interest groups;

f) details of the fauna information to be provided in workforce induction training; and

g) a contingency plan should entanglement incidents resulting from the development become a regular occurrence.



7.17 The Applicant must keep on site at all times, including each of the boats associated with the development, a copy of the Entanglement Protocol and a list of relevant contacts that are responsible for any entanglement incidents that occur as a result of the development.



7.18 Prior to the commencement of operation, the Applicant must train staff in wildlife rescue and rehabilitation techniques, in consultation with the DEC, to ensure an appropriate response to an entanglement incident.



7.19 If any action is taken under the approved Entanglement Protocol (see condition 7.16), the Applicant is not entitled to any compensation for any loss reasonably caused in taking that action.



7.20 The Applicant must reimburse NSW Department of Primary Industries, the DEC and any other State agency involved for any reasonable costs incurred in taking any action under the Entanglement Protocol.



7.21 The Applicant must adequately document any incidence of death or injury to marine mammals or birds associated with aquaculture structure or activities, with a statement of how the incident occurred and any action taken under the Entanglement Protocol.



7.22 The Applicant must not retain for personal consumption, sale or trade, any species, other than those listed under the aquaculture permit, that have become inadvertently trapped or entangled by the aquaculture apparatus associated with the development.



7.23 The Applicant is in contravention to the aquaculture permit, if reasonable action is not taken to remedy, alleviate, or reduce the incidence of entanglement, or to assist fauna which have been entangled or adversely impacted by the development.



This condition does not make it necessary for the Applicant to risk life or personal injury. Dangerous sharks or other fauna (with exception to those listed as a ‘threatened species’ or a 'protected species') which are entangled or trapped may be removed in an appropriate manner.



Noise Impacts

7.24 Unless otherwise agreed in writing with the Director-General, construction activities at the land-based site, including the arrival and departure of vehicles and/ or boats delivering or removing material and/ or goods from the site, may only be carried out between the following hours:

a) 7:00 am and 6:00pm, Monday to Friday, inclusive;

b) 7:00am and 1:00pm on Saturdays; and

c) at no time on a Sunday or public holiday.



7.25 Operation activities at the land-based site, not including the arrival and departure of vehicles and/ or boats delivering or removing materials and/ or goods from the site, may only be carried out between the following hours:

a) 6:30am and 5:30pm from Monday to Friday, inclusive;

b) 8:00am and 5:00pm on Saturdays and Sundays; and

c) at no time on a public holiday unless an emergency arises.



7.26 The arrival and departure of vehicles and/ or boats delivering or removing materials and/ or goods during operation of the land-based site, may only occur between the hours of:

a) 7:00am and 5:30pm from Monday to Friday, inclusive;

b) 8:00am and 5:00pm on Saturdays and Sundays; and

c) at no time on a public holiday unless an emergency arises.



7.27 Construction and operation activities at the water-based site associated with the development, including the arrival and departure of boats delivering or removing materials and/ or goods from these sites, may only be carried out between the following hours:

a) 7:00am and 5:00pm from Monday to Friday, inclusive; and

b) at no time on a Saturday, Sunday or public holiday.



7.28 The hours of operation referred to in condition 7.27 above, do not apply in cases of an emergency (entanglement incident, security issue etc.) and may be varied with the prior written approval of the Director-General where it can be demonstrated that the variation to the hours of operation would not result in the noise criteria, to be determined under condition 10.5 f), being exceeded.



Disease Impacts

7.29 The Applicant must notify the NSW Department of Primary Industries within 24 hours of the discovery of any Declared Disease, unusual health status or any significant event associated with the welfare of the fish at the site.



Declared diseases are identified in Appendix A of this consent. The NSW Department of Primary Industries has identified a significant event as one where there has been greater than a 5% loss (mortality) of fish stocks in a week, lesions, weight loss or poor growth, whether explained or otherwise.



7.30 Where any Declared Disease or any other disease exists, or is reasonably suspected of existing on the site, the Applicant must carry out any direction so ordered by the Director-General of Department of Primary Industries for the treatment or destruction of fish including quarantine of the site. Any such order shall remain in effect until revoked by the Director-General of Department of Primary Industries in writing.



7.31 The Applicant must not sell, give away or release to waterways, any fish if it is known or suspected to be infected with a Declared Disease. The Applicant must take all precaution as specified in writing by the Director-General of Department of Primary Industries to prevent the escape of disease from the site.



7.32 All fish movements must comply with any fishing closures in force under section 8 of the Fisheries Management Act 1994, including the Pacific Oyster Control closure and the QX (Marteiliosis) Disease Control closure.



7.33 The Applicant must not obtain any live oyster spat for the purposes of operation of the development from any person, whether in NSW, interstate or overseas, unless that person is authorised as a supplier of oyster spat under NSW State and/ or Commonwealth legislation and is approved in writing by NSW Department of Primary Industries.



7.34 The oyster spat referred to in condition 7.33 above must be spawned from broodstock originating from the east coast of Australia.



7.35 Imported aquaculture equipment and supplies must be restricted to new items, or small items that can be sterilised by autoclave. The importation of large pieces of second-hand equipment that cannot be autoclaved is prohibited.



Waste Generation and Odour Management

7.36 The Applicant must not cause or permit the emission of offensive odours beyond the boundary of the land-based site. For the purposes of this condition, “offensive odour” has the same meaning as defined under section 129 of the Protection of the Environment Operations Act 1997.

7.37 All wastes generated during construction and operation of the development must, prior to its disposal, be stored in a manner such that any odour generated by the waste is not detectable at the site boundary.



7.38 All wastes generated during construction and operation of the development must be classified in accordance with the DEC’s publication Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes and disposed of to a facility that may lawfully accept the waste.



7.39 Notwithstanding condition 7.36, the disposal of dead and/ or diseased fish must be done in accordance with the requirements of the NSW Department of Primary Industries.



7.40 The Applicant must investigate options for the re-use of discarded material associated with the harvesting of pearl oysters (Pinctada imbricata), including the shell, muscle and viscera of the oyster. Within three months of the commencement of operation of the development, the Applicant must submit a report to the Director-General outlining the findings of this investigation, proposed re-use options and a timetable for implementation of these options.



7.41 The Applicant must not release wastewater or effluent from activities undertaken at the land- based site into Cromartys Bay or the surrounding waterways of Port Stephens.



7.42 The Applicant must be responsible for involving and encouraging employees and contractors to minimise domestic waste production on site and reuse/ recycle where possible.



Boat Numbers and Movements

7.43 Cleaning boats associated with the development must be covered and must not be more than nine (9) metres in length, and must otherwise be generally as described in section 2.5.6 of the EIS.



7.44 Work boats associated the development must be covered and must not be more than fifteen (15) metres in length, and must otherwise be generally as described in section 2.5.6 of the EIS.



7.45 The Applicant must ensure that the maximum number of boats associated with the development on an aquaculture lease at any one time does not exceed five (5) during construction (comprising no more than 1 anchor boat, 3 spotter boats and 1 tender/ response boat) and three (3) during operation (comprising no more than 1 cleaning boat and 2 work boats). Notwithstanding, the Applicant may alter the number of boats on a lease at any one time with the prior written approval of the Director-General.



7.46 All boats movements associated with the construction and operation of the development must be undertaken generally in accordance with the routes outlined in Figure 2.6 and section 2.5.6 of the EIS.



7.47 All boats associated with the development must be limited to a maximum of 20 knots, except during the dolphin calving period (December to April inclusive) when the maximum speed must not exceed 15 knots, when travelling within the enclosed waters of Port Stephens. At all times drivers must also adjust their speed to suit visibility conditions.



Hazards and Risk

7.48 The Applicant must store and handle all dangerous goods (as defined by the Australian Dangerous Goods Code) and combustible liquids, strictly in accordance with:

a) all relevant Australian Standards;

b) a minimum bund volume requirement of 110% of the volume of the largest single stored volume within the bund; and

c) the DEC's Environment Protection Manual Technical Bulletin Bunding and Spill Management.



In the event of an inconsistency between the requirements listed from a) to c) above, the most stringent requirement shall prevail to the extent of the inconsistency.



7.49 A Spill Management Plan must be prepared and implemented to address any impacts resulting from the spillage of any fuel or liquid wastes, in particular hydraulic oils, during the construction and operation of the development. The Applicant must ensure that all staff, contractors, sub-contractors and agents involved with the works are familiar with the spill management plan and are properly trained to use spillage equipment.



7.50 The Applicant must ensure that spillage equipment such as absorbent booms, spill kits and deployment facilities are in a convenient position for quick response and cleanup.



7.51 Appropriate security lighting is to be provided and maintained in good working order at the land-based site.



Visual Amenity

7.52 The Applicant must prepare an external design panel indicating the proposed external design finishes, materials, with specific consideration of using low reflectivity finishes, and configuration for all buildings on site, to the satisfaction of the Director-General.



7.53 The Applicant must ensure that all external lighting associated with the development is mounted, screened, and directed in such a manner so as not to create a nuisance to the surrounding environment, properties and roadway. The lighting must be the minimum level of illumination necessary and must comply with AS 4282(INT) 1995 – Control of Obtrusive Effects of Outdoor Lighting.





8. ENVIRONMENTAL MONITORING AND AUDITING



Water Quality Monitoring

8.1 Prior to the commencement of operation, the Applicant must prepare and implement a Water Quality Monitoring Program to monitor and assess the impact of the aquaculture lease cleaning operations on the surrounding environment, particularly with regards to meeting the objectives of condition 7.2 of the consent. The program must include, but not necessarily be limited to:

a) details of at least two background surveys to establish the water quality parameters as identified under subclause d) in the middle Port area (that is, east of Soldiers Point and west of Sandy Point), prior to the commencement of construction of the development;

b) identification of the source(s) of the development that could impact upon water quality;

c) locations at which monitoring of waters will be undertaken, including a map showing their locations relative to the cleaning boats;

d) identification of the parameter(s) to be measured. As a minimum, parameters must include turbidity, total suspended solids and water clarity;

e) procedures for the sampling and analysis methodology undertaken for the monitoring, including sample design and statistical analyses. Procedures must be consistent with the NSW DEC Approved Methods for the Sampling and Analysis of Water Pollution in NSW and the ANZECC Australian and New Zealand Guidelines for Fresh and Marine Water Quality, 2000;

f) a periodic schedule for the sampling of water at the monitoring locations. The sampling schedule must be designed in a manner that enables the objectives of condition 7.2 to be accurately tested; and

g) details of a contingency plan should monitoring of water quality indicate that the development has had or is having an adverse effect on the quality of waters of Port Stephens.



The Monitoring Program must be submitted for the approval of the Director-General at least one month prior to the commencement of operation of the development, or as otherwise agreed to by the Director-General.



Flora and Fauna Monitoring

Seagrasses

8.2 Prior to the commencement of construction activities associated with this development at the water-based sites, the Applicant must prepare and implement a Seagrass Monitoring Program to monitor and assess the impact of the development on seagrasses during construction and operation. The program must be prepared in consultation with NSW Department of Primary Industries and must include, but not necessarily by limited to:

a) details of at least two background surveys of the seagrass beds within the vicinity of the development, including a detailed map showing the location, species and density, prior to the commencement of construction of the development;

b) details of the locations at which monitoring of seagrass beds will be undertaken, particularly including those areas adjacent to the water-based sites;

c) identification of the parameters(s) to be measured for indicators of significant damage to and/ or loss of seagrass beds. As a minimum, parameters must include epiphytic growth, leaf length, percent cover, density and depth limit;

d) procedures and protocols for sampling and analysis methodology to be undertaken for the monitoring, including sample design and statistical analyses. In particular, the results of background surveys and subsequent surveys undertaken as part of this consent must be statistically compared over time and against the two previous seagrass monitoring surveys undertaken;

e) a periodic schedule for the inspection of seagrasses at the monitoring locations, at a frequency of at least twice prior to the commencement of construction of the aquaculture leases and at least once every twelve months thereafter at all three aquaculture leases, or as otherwise agreed and directed by the Director-General; and

f) details of a contingency plan in the event that the monitoring indicates that the development has had or is having a detrimental impact upon the seagrasses, including a timetable for implementation.



The Monitoring Program must be submitted for the approval of the Director-General at least one month prior to the commencement of construction activities associated with the development at the water-based sites, or as otherwise agreed to by the Director-General, and must be accompanied by written evidence of the NSW Department of Primary Industries satisfaction with the Program.



The two previous seagrass monitoring surveys are identified in section Appendix 7 of the EIS and Roberts (2002) Seagrass Meadows and Benthic Assemblages in the Vicinty of the Wanda Head Pearl Oyster Lease in Port Stephens, NSW, Bioanalysis.



Dolphins

8.3 Prior to the commencement of construction activities associated with this development at the water-based sites, the Applicant must prepare and implement a Dolphin Monitoring Program. The Program is to provide a basis from which the response(s) of dolphins to the proposed development can be assessed and to undertake ongoing monitoring of dolphin behaviour to assess any potential changes in dolphin behaviour as a result of the development. The Program must be prepared and implemented by a suitably qualified and independent expert that is to receive the prior approval of the Director-General, and is to be prepared in consultation with NSW Department of Primary Industries and DEC. The Program must include, but not necessarily be limited to:

a) a periodic schedule for the surveying of bottlenose dolphins within the port including, but not limited to the following times:

i) at least three (3) months of survey data undertaken prior to the commencement of any construction activities associated with the development on the water-based sites and during a period in which the existing Wanda Head aquaculture lease is still operating (refer to condition 1.8). This should include periods outside and coincident with previous research undertaken on this population and ideally, for at least two months prior to the summer period (December through to April) and one month during the calving period (December through to April), or as otherwise agreed with the Director-General;

ii) during construction (installation) of the lease infrastructure at the water-based sites;

iii) immediately following the completion of construction activities on the water-based sites; and

iv) annually thereafter in each year for a period of at least (three) 3 years. The timing of this survey effort is to occur over the same 3-month period as identified in subclause i). Following the provision of the third annual monitoring results, the duration and frequency of the monitoring program may be reassessed and altered, subject to the satisfaction of the Director-General.

b) details of the locations at which surveying of dolphins will be undertaken over the survey periods identified under part a) including, but not limited to the following;

i) existing Wanda Head aquaculture lease area (as identified in Development Application No. DA-318-11-2001-i);

ii) Wanda Head lease aquaculture area (refer condition 1.1 a)i));

iii) Mambo Creek aquaculture lease area (refer condition 1.1 a)ii));

iv) Pindimar aquaculture lease area (refer to condition 1.1 a)iii)); and

v) Middle Port, particularly the northern side (between Orungall Point and North Point) and southern side (between Corlette Point and Soldiers Point) and the connection between the central and western port;

c) details of the parameters to be monitored over the survey periods at the locations identified under parts a) and b), respectively, including but not limited to the following:

i) identification of when dolphins are travelling through the area (including an indication of the time and number and whether they are juveniles or adults);

ii) identification of the direction and route they are travelling;

iii) nature of the dolphin(s) behaviour at that time, for example, whether they are passing through an area or resting or feeding;

iv) description of the environmental conditions associated with the observations such as weather, tide, water clarity, whether any operations are occurring on the leases, other vessel movements; and

v) identification of important habitats for bottlenose dolphins, with particular emphasis on calf and juvenile activities and feeding and resting areas; and

d) procedures and protocols for the surveying and subsequent analysis of dolphin behaviour, taking into consideration any previous research undertaken in this regard. In particular, the results of background surveys and subsequent surveys undertaken as part of this consent must be statistically compared over time and against any previous surveys undertaken on dolphins in the area, where possible. The analysis must also include an assessment of any correlations between dolphin behaviour and the environmental conditions identified under part c) subclause iv) and must consider any correlation between the daily activity monitoring undertaken at the water-based sites (refer condition 7.14) and the monitoring required as part of this condition.



The Monitoring Program must be submitted for the approval of the Director-General at least one month prior to the intended commencement of the background monitoring referred to under part a) i) of this condition, or as otherwise agreed to by the Director-General.



The dolphin monitoring program is required to assess whether the development is impacting upon the dolphins and therefore, if remedial actions need to be undertaken to ameliorate the impact (refer to conditions 8.3 to 8.7 inclusive).



8.4 Reports providing the results of each surveying event required under condition 8.3 must be submitted to the Director-General within 28 days of completion of each of those events. In the event that the monitoring program undertaken to satisfy condition 8.3 indicates that the development has resulted in a significant change in dolphin usage patterns or behaviour, as determined by the suitably qualified and independent expert, the Applicant must then demonstrate, in consultation with the expert and to the satisfaction of the Director-General, whether these identified changes are likely to have an adverse impact on the viability of the dolphin population.



8.5 Where the Director-General considers that the development has had or is having an adverse impact on the viability of the dolphin population (refer to condition 8.4), the Applicant must detail the remedial measures that will be undertaken to ameliorate this impact. The remedial measures must be developed in consultation with the suitably qualified and independent expert, the DEC and NSW Department of Primary Industries.



Details of the remedial measures and a timetable for implementation must be submitted to the Director-General for approval within such period as the Director-General may require and, must subsequently be implemented within such time as the Director-General may require. Any remedial measure that recommends the Applicant cease operations will be considered and determined by the Director-General, in consultation with the NSW Department of Primary Industries and the DEC. Should the Director-General determine that operation of the development must cease, the Applicant must follow the procedures identified in the Decommissioning Plan required under condition 3.2.



Following the completion of the remedial measures, the Applicant must provide documentary evidence that demonstrates that the remedial measures have been implemented to the satisfaction of the Director-General.



8.6 Should the Applicant be required to undertake and complete any remedial measures to ameliorate any impact on dolphins, as required under condition 8.5, the Applicant must continue to undertake monitoring of dolphins for a further year, or as otherwise agreed with the Director-General, in accordance with the approved dolphin monitoring program required under condition 8.3, to determine the success of the remedial measures.



8.7 Should the results of this subsequent monitoring indicate that the remedial measures have been:

a) a success (determined by a suitably qualified and independent expert and to the satisfaction of the Director-General), then the requirement for further monitoring will be reviewed; or

b) unsuccessful (determined by a suitably qualified and independent expert and to the satisfaction of the Director-General), the Applicant will have to undertake further remedial measures, following the process identified under condition 8.5.



Benthic Fauna

8.8 Prior to the commencement of operation, the Applicant must prepare and implement a Benthic Fauna Monitoring Program to monitor and assess the impact of the development on benthic fauna. The program must be prepared in consultation with NSW Department of Primary Industries and must include, but not necessarily be limited to:

a) details of the locations at which monitoring of benthic fauna will be undertaken. As a minimum, locations must include the substrate directly below and in the vicinity of the aquaculture leases and reference sites, and that are consistent with the locations required for the monitoring of the substrate chemistry as required under condition 8.9;

b) identification of the parameters(s) to be measured to determine whether the development is impacting upon the benthic fauna. As a minimum, parameters must include abundance and diversity of benthic taxa identified to at least family level;

c) procedures and protocols for sampling and analyses methodology to be undertaken for the monitoring, including sample design, statistical analyses and reporting. In particular, detailed analysis and reporting to the Director-General shall only be required following the completion of the first survey undertaken after the commencement of operation and every two years thereafter, and where it has been demonstrated that the development has had or is having a significant impact on sediment chemistry (as determined from the monitoring required under condition 8.9);

d) a periodic schedule for the inspection of benthic fauna at the monitoring locations, at a frequency of at least once prior to the commencement of construction of the aquaculture leases and at least once every six months thereafter, to be timed to coincide with the monitoring of the substrate chemistry as required under condition 8.9, or as otherwise agreed and directed by the Director-General; and

e) details of a contingency plan in the event that the monitoring indicates that the development has had, or is having a detrimental impact upon the benthic fauna, including a timetable for implementation.



The Monitoring Program must be submitted for the approval of the Director-General at least one month prior to the commencement of construction activities associated with the development at the water-based sites, or as otherwise agreed to by the Director-General.



Substrate Monitoring

8.9 Prior to the commencement of construction activities associated with the development at the water-based sites, the Applicant must prepare and implement a Substrate Monitoring Program to monitor and assess the impact of the development on the chemistry of the substrate under and in the vicinity of the aquaculture leases. The program must be consistent with that described in the EIS and must include, but not necessarily be limited to:

a) identification of the source(s) of the development that could impact upon the chemistry of the substrate;

b) locations at which monitoring of substratum will be undertaken. As a minimum, monitoring locations must include the substrate directly below and in the vicinity of the aquaculture leases and reference sites and that are consistent with the locations required for the monitoring of the benthic fauna as required under condition 8.8;

c) identification of the parameter(s) to be measured. As a minimum, parameters must include nitrogen, phosphorus and carbon;

d) procedures for the sampling and analysis methodology undertaken for the monitoring, including sample design and statistical analyses;

e) a periodic schedule for the sampling of substrate chemistry at the monitoring locations, at a frequency of at least once prior to the commencement of construction of the aquaculture leases and at least once every six months thereafter, to be timed to coincide with the monitoring of benthic fauna as required under condition 8.8, or as otherwise agreed and directed by the Director-General; and

f) details of a contingency plan in the event that the monitoring indicates that the development has had, or is having a significant impact upon the substrate, including a timetable for implementation.



The Monitoring Program must be submitted for the approval of the Director-General at least one month prior to the commencement of construction activities associated with the development at the water-based sites, or as otherwise agreed to by the Director-General.











Independent Environmental Auditing

8.10 Within one year of the commencement of operation of the development, and then as may be directed by the Director-General, the Applicant must commission an independent person or team to undertake an Environmental Audit of the development. The independent person or team must be approved by the Director-General prior to the commencement of the Audit. The Audit must:

a) be carried out in accordance with ISO 19011:2002 - Guidelines for Quality and/ or Environmental Management Systems Auditing;

b) assess compliance with the requirements of this consent, and other licences and approvals that apply to the development;

c) assess the environmental performance of the development against the predictions made and conclusions drawn in the EIS; and

d) review the effectiveness of the environmental management of the development, including any environmental impact mitigation works.



An Environmental Audit Report must be submitted for comment to the Director-General, and NSW Department of Primary Industries within two months of the completion of the Audit, detailing the findings and recommendations of the Audit and including a detailed response from the Applicant to any of the recommendations contained in the Report.



The Director-General may, having considered any submissions made by NSW Department of Primary Industries in response to the Report, require the Applicant to undertake any work reasonably necessary to address the findings or recommendations presented in the Report. Any such works must be completed within such reasonable time as the Director-General may require.





9. COMMUNITY INFORMATION, CONSULTATION AND INVOLVEMENT



9.1 Subject to confidentiality, the Applicant must make all documents required under this consent available for public inspection on written request.



Complaints Procedure

9.2 Prior to the commencement of construction of the development, the Applicant must ensure that the following are available for community complaints:

a) a 24-hour, telephone number on which complaints about the development may be registered;

b) a postal address to which written complaints may be sent; and

c) an email address to which electronic complaints may be transmitted, should the Applicant have e-mail capabilities.



The telephone number, the postal address and the email address must be maintained throughout the life of the development.



9.3 The telephone number, postal address and the e-mail address identified under condition 9.2 must be:

a) advertised in a newspaper circulating in the locality on at least one occasion prior to the commencement of construction of the development; and

b) displayed on a sign near the entrance to the land-based site at Diemars Road, in a position visible from the nearest public road; and

c) provided on the Applicant's internet site, should one exist.



9.4 The Applicant must take reasonable action to resolve or mitigate the issue(s) raised in any complaint within 24 hours of that complaint being made.



9.5 The Applicant must record details of all complaints received through the means listed under condition 9.2 of this consent in an up-to-date Complaints Register. The Register must record, but not necessarily be limited to:

a) the date and time, where relevant, of the complaint;

b) the means by which the complaint was made (telephone, mail or email);

c) any personal details of the complainant that were provided, or if no details were provided, a note to that effect;

d) the nature of the complaint;

e) any action(s) taken by the Applicant in relation to the complaint, including any follow-up contact with the complainant; and

f) if no action was taken by the Applicant in relation to the complaint, the reason(s) why no action was taken.



The Complaints Register must be made available for inspection by the Director-General upon request.





10. ENVIRONMENTAL MANAGEMENT



Environmental Representative

10.1 Prior to the commencement of construction of the development, the Applicant must nominate a suitably qualified and experienced Environmental Representative(s) whose appointment is to receive prior approval of the Director-General. The Applicant must employ the approved Environmental Representative(s) on a full-time basis throughout the life of the development. The Environmental Representative(s) must be:

a) the primary point of contact in relation to the environmental performance of the development;

b) responsible for all Management Plans and Monitoring Programs required under this consent;

c) responsible for considering and advising on matters specified in the conditions of this consent, and all other licences and approvals related to the environmental performance and impacts of the development;

d) responsible for receiving and responding to complaints in accordance with condition 9.2 of this consent; and

e) given the authority and independence to require reasonable steps be taken to avoid or minimise unintended or adverse environmental impacts, and failing the effectiveness of such steps, to direct that relevant actions be ceased immediately should an adverse impact on the environment be likely to occur.



The Applicant must notify the Director-General and NSW Department of Primary Industries of any changes to that appointment that may occur from time to time.



Construction Environmental Management Plan (CEMP)

10.2 The Applicant must prepare and implement a Construction Environmental Management Plan to outline environmental management practices and procedures to be followed during the construction of the development. The Plan must include, but not necessarily be limited to:

a) a description of all activities to be undertaken on the site during construction, including an indication of stages of construction, where relevant;

b) statutory and other obligations that the Applicant is required to fulfil during construction of the development, including all approvals, consultations and agreements required from authorities and other stakeholders, and key legislation and policies;

c) specific consideration of measures to address any requirements of the Department and NSW Department of Primary Industries during construction;

d) measures to ensure navigation and safety on the waterway is maintained during the construction of the aquaculture leases, including notifying the boating fraternity;

e) details of how the environmental performance of the construction works will be monitored, and what actions will be taken to address identified adverse environmental impacts;

f) a description of the roles, responsibilities, authority and accountability for all relevant employees involved in the construction of the development;

g) complaints handling procedures during construction;

h) procedures to ensure the occupational health and safety of construction workers;

i) the relevant environmental monitoring requirements including those outlined under conditions 8.1 to 8.9 of the consent, inclusive;

j) proposed contingency measures that should be implemented should any adverse impacts be identified during construction activities; and

k) the Management Plans listed under condition 10.3 of this consent. The following environmental performance issues shall also be addressed in the Plan:

i) measures to monitor and control noise emissions during construction; and

ii) measures to monitor and manage dust emissions. The Applicant must consult with neighbouring properties in relation to the timing of potentially dust generating activities associated with the construction of the development and take into consideration the reasonable requirements of those affected properties so as to minimise any potential dust impacts.



The CEMP must be submitted for the approval of the Director-General no later than one month prior to the commencement of construction works associated with the development, or within such period as otherwise agreed by the Director-General. Notwithstanding, where construction work is to be undertaken in stages, the Applicant may, subject to the agreement of the Director-General, stage the submission of the CEMP consistent with the staging of activities relating to that work.



Construction works associated with any stage of the development must not commence until written approval has been received from the Director-General for that stage. Upon receipt of the Director-General’s approval, the Applicant must supply a copy of the CEMP to NSW Department of Primary Industries and Council as soon as practicable.

10.3 As part of the CEMP for the development, required under condition 10.2 of this consent, the Applicant must prepare and implement the following Management Plans:

a) an Erosion and Sedimentation Control Management Plan to detail measures to minimise erosion and the discharge of sediment and other pollutants to land and/ or water during site preparation and construction works associated with the land-based site. The Plan must be prepared in consultation with the Department and include, but not necessarily be limited to:

i) results of investigations into soils associated with the site, in particular the stability of the soil and its susceptibility to erosion;

ii) details of erosion, sediment and pollution control measures and practices to be implemented during construction of the development;

iii) demonstration that erosion and sediment control measures will conform with, or exceed, the relevant requirements of the Department of Housing’s publication Managing Urban Stormwater: Soils and Construction (1998);

iv) design specifications for diversionary works, banks and sediment detention basins;

v) an erosion monitoring program during construction and demolition works associated with the development;

vi) description of procedures to ensure that the measures implemented to control sediment and erosion on site, are maintained at design capacity at all times; and

vii) measures to address erosion, should it occur, and to rehabilitate/ stabilise disturbed areas of the site.

b) a Waste Management Plan to outline measures to manage and minimise waste generation and resource consumption during construction of the development. The Plan must include, but not necessarily be limited to:

i) identification of the types and quantities of waste that would be generated;

ii) description of measures and actions to be taken to minimise waste generated by the construction of the development; and

iii) description of how waste would be handled and stored during construction, and reused, recycled, and if necessary, appropriately treated and disposed of in accordance with the DEC guidelines Assessment, Classification and Management of Liquid and Non-Liquid Waste.

Operation Environmental Management Plan (OEMP)

10.4 The Applicant must prepare and implement an Operation Environmental Management Plan to detail an environmental management framework, practices and procedures to be followed during the operation of the development. The Plan must include, but not necessarily be limited to:

a) identification of all statutory and other obligations that the Applicant is required to fulfil in relation to the operation of the development, including all consents, licences, approvals and consultations;

b) a management organisational-chart identifying the roles and responsibilities for all relevant employees involved in the operation of the development;

c) overall environmental policies and principles to be applied to the operation of the development;

d) standards and performance measures to be applied to the development, and a means by which environmental performance can be periodically reviewed and improved, where appropriate;

e) identification of how employees, contractors, sub-contractors and visitors must be made aware of the environmental performance obligations under this consent;

f) management policies to ensure that environmental performance goals are met and to comply with the conditions of this consent;

g) details of a program to be implemented to ensure that the aquaculture lease longlines are maintained at a depth of at least 4 metres below the surface of the water, with details provided as to:

i) how the depth of the longlines will be determined;

ii) the frequency at which monitoring of each lease will take place; and

ii) when this is not possible, for example, during cleaning and maintenance operations and how this would be managed;

h) details of a maintenance program to be implemented to ensure the aquaculture lease infrastructure is kept in good working order;

i) the Management Plans and Protocols listed under condition 10.5 of this consent; and

j) the relevant environmental monitoring requirements outlined under conditions 8.1 to 8.9 of the consent, inclusive, with details of contingency measures to be implemented should the results of monitoring indicated that the development has had, or is having an adverse effect on the surrounding environment.



The Plan must be submitted for the approval of the Director-General no later than one month prior to the commencement of operation of the development, or within such period as otherwise agreed by the Director-General. Operation must not commence until written approval has been received from the Director-General. Upon receipt of the Director-General’s approval, the Applicant must supply a copy of the OEMP to the DEC, Council, and NSW Department of Primary Industries as soon as practicable.



10.5 As part of the OEMP for the development, required under condition 10.4 of this consent, the Applicant must prepare and implement the following Management Plans and Programs:

a) a Water Management Plan to outline measures to control and manage process and waste water associated with the operation of the development. The Plan must be consistent with the information provided in the EIS and additional information provided to the Department by the Applicant on 22 March 2004 and must address any requirements of NSW Department of Primary Industries. The Plan must include, but not necessarily be limited to:



i) identification of all major sources that may impact on the quality of the Port Stephens waterway;

ii) specification of the water quality criteria as it applies to a particular activity;

iii) measures to be implemented to ensure process water is only discharged from the discharge points identified in condition 7.1;

iv) procedures for the monitoring of water quality impacts, in accordance with the monitoring program identified in condition 8.1 of this consent;

v) a detailed program for cleaning the oysters and associated equipment to minimise the impacts on the water quality of Port Stephens and to ensure the objectives of condition 7.2 can be met. This must include consideration of:

i. procedures to be undertaken to minimise the sediment plume that may occur as oyster faming apparatus (including oyster cages and panel nets) are lifted from the water and into the cleaning boats, such as using silt curtains;

ii. procedures to be undertaken to minimise the amount of sediment and other particulate matter being returned in the process waters to the Port waters;

iii. determination of an appropriate cleaning frequency to meet the objectives of condition 7.2;

iv. identification and justification of circumstances in which the cleaning of oysters may be impeded, for example due to the time of year, bad weather or equipment failure;

v. procedures to prioritise longlines for cleaning to minimise any sediment plume;

vi. implementation of a cleaning logbook/ record keeping system;

vi) procedures to be undertaken to collect and/ or treat process water from the floor of the cleaning punts;

vii) measures to be implemented and a timeframe for the ongoing investigation and trialling of cleaning operations to minimise the impact of the development on the quality of Port waters; and

viii) a contingency plan should monitoring of water quality indicate that the development has had or is having an adverse effect on the quality of waters of Port Stephens.

b) a Quarantine Management Protocol to detail measures to manage and minimise the risk of disease outbreaks at the site. The Program must meet the requirements of the NSW Department of Primary Industries, should there be any. The Program must include, but not necessarily be limited to:

i) procedures for obtaining oyster spat, particularly to ensure that it is spawned from broodstock originating from the east coast of Australia;

ii) details on the routine for examining stock for signs of disease;

iii) measures to be undertaken for the isolation of diseased stock;

iv) procedures to notify NSW Department of Primary Industries of the discovery of any disease;

v) procedures for the disposal and/ or treatment of diseased stock and wastes in accordance with any direction from NSW Department of Primary Industries;

vi) measures to be adopted for the sourcing, sterilisation and general management of equipment used in the operation of the development; and

vii) measures to be undertaken for the maintenance of the site in a clean and tidy state, at all times.

c) a Stock Handling Protocol to detail measures for the management of stock associated with the development including procedures for stock handling and transference regimes; harvesting of stock; and recording and monitoring of the performance of the development, particularly the production of pearls and sales of stock.

d) a Waste Management Plan to outline measures to manage and minimise waste generation and resource consumption during operation of the development. The Plan must include, but not necessarily be limited to:

i) identification of the types and quantities of waste that would be generated during operation;

ii) description of measures and actions to be taken to minimise waste generated during operation of the development;

iii) protocols for disposing of any process water used in the treatment of mudworm (and disposal of the mudworms themselves; and

iv) description of how waste would be handled and stored during operation, and reused, recycled, and if necessary, appropriately treated and disposed of in accordance with the DEC guidelines Assessment, Classification and Management of Liquid and Non-Liquid Waste.

e) a Navigational and Safety Protocol to outline measures to manage and minimise the risk of navigational and safety impacts associated with the development. The Protocol must be prepared in consultation with the NSW Maritime Authority, NSW Water Police, Royal Volunteer Coastal Patrol and relevant local sailing clubs, and must include, but not necessarily be limited to:

i) procedures for the notification of the need for assistance or for the provision of assistance to any water craft that may become entangled within aquaculture lease infrastructure;

ii) procedures for the provision or exchange of relevant information between the Applicant, waterway users and relevant Government agencies. This may include the provision of information on the location of the leases for relevant water users, details on the activities that can occur on and in the vicinity of the aquaculture leases and information on when sail boat or other races occur;

iii) measures to be implemented to notify other watercraft or persons within the vicinity of the aquaculture leases of the presence of such leases, including identifying the aquaculture leases on relevant navigational charts;

iv) procedures to consult with relevant user groups, particularly local sailing clubs concerning racing events and regattas;

v) procedures for the inspection, maintenance, replacement and any storage of infrastructure to ensure navigation and safety issues are maintained; and

vi) procedures for the inspection, maintenance, replacement and mooring of boats associated with the development.

f) a Stormwater Management Plan to outline measures to control and manage surface water (including erosion and sedimentation) and stormwater associated with the operation of the land-based site. The Plan must include, but not necessarily be limited to:

surface water, erosion and sedimentation management

i) measures to be implemented to minimise the potential for erosion from the land-based site during the operation of the development and measures to maintain all erosion mitigating works at, design capacity;

ii) demonstration that erosion and sedimentation control measures will conform with, or exceed, the relevant requirements and guidelines provided in the Department’s publication Urban Erosion and Sedimentation Handbook, the DEC’s publication Pollution Control Manual for Urban Stormwater, and the Department of Housing's publication Soil and Water Management for Urban Development; and

iii) measures to rehabilitate erosion-affected areas and areas the subject of excavation, including tree, shrub and/ or cover crop species and implementation.

stormwater management

i) details of the stormwater infrastructure to be installed;

ii) demonstration that the stormwater control infrastructure will conform with, or exceed all relevant requirements and guidelines contained within the stormwater management plan for the catchment, should one exist, or with the DEC’s publication Managing Urban Stormwater: Council Handbook should a stormwater management plan for the catchment not exist;

iii) description of the procedures for planting and maintaining vegetation along any stormwater channels and detention systems, to minimise the potential for erosion;

iv) details of how rainwater will be captured and reused on site, such as through use of rainwater tanks. Consideration must be given to Council’s Urban Rianwater Tank Policy adopted by Council on 16 December 2003; and

v) description of the procedures for the installation and maintenance of the stormwater control infrastructure, including stormwater pollution control devices.

g) a Landscape Management Plan to outline measures to ensure appropriate development and maintenance of landscaping on the site. The Plan should be prepared by a landscape architect and must include, but not necessarily be limited to:

i) details of landscaping to be undertaken at the site;

ii) maximisation of use of flora species that are native to the locality in landscaping the site, with particular emphasis on plants with low maintenance requirements;

iii) a program for the removal of weeds at the site;

iv) a program to ensure that all landscaped areas on the site are maintained in a tidy, healthy state; and

v) details of all external lighting to be erected at the site.

h) a Boat Management Protocol to outline measures for the mooring, refuelling and maintenance of boats associated with the development. Consideration must be given to the management of fuel on the site to minimise the potential for spills and potential contamination resulting from any spills.

i) an Infrastructure Maintenance Protocol to outline measures for the storage, cleaning and repair of equipment associated with the development (including, ropes, cages, panel nets etc.) at the land-based site.

j) a Noise Management Plan to outline measures to manage and minimise potential noise impacts associated with the operation of the development. The Plan must be consistent with the Plan identified in the EIS and must include, but not necessarily be limited to:

i) identification of all major sources of noise that may be emitted as a result of the operation of the development;

ii) specification of the noise criteria as is applies to the particular activity, in accordance with the DEC’s Industrial Noise Policy (2000);

iii) identification and implementation of best practice management techniques for minimising noise emissions from the development, including consideration of boat speeds, boat movements, boat motors, communication between boats, modifications to boats to silence equipment;

iv) measures to minimise noise generated during the cleaning operations, including those measures identified in section 6.4.2.4 of the EIS;

v) measures to manage any potential noise emissions that may be tonal or intermittent in nature;

vi) procedures for the monitoring of noise emissions; and

vii) a description of procedures to be undertaken if any non-compliance is detected.



10.6 Within three years of the commencement of operation, and at least every three years thereafter, the Applicant must undertake a formal review of the Operation Environmental Management Plan (OEMP) required under condition 10.4 of this consent. The review must ensure that the OEMP is up-to-date and all changes to procedures and practices since the previous review have been fully incorporated into the OEMP. The Applicant must notify the Director-General, NSW Department of Primary Industries and Council of the completion of each review, and must supply a copy of the updated OEMP to those parties on request.





11. ENVIRONMENTAL REPORTING



Incident Reporting

11.1 The Applicant must notify the Director-General and any other relevant Government authority of any incident with actual or potential significant off-site impacts on people or the biophysical environment as soon as practicable after the occurrence of the incident (“initial notification”). The Applicant must provide written details (“written report”) of the incident to the Director-General and any relevant Government authority within seven days of the date on which the incident occurred.



11.2 The Applicant must meet the requirements of the Director-General to address the cause or impact of any incident, as it relates to this consent, reported in accordance with condition 11.1 of this consent, within such period as the Director-General may require.



Annual Performance Reporting

11.3 The Applicant must, throughout the life of the development, prepare and submit for the approval of the Director-General, an Annual Environmental Management Report (AEMR). The AEMR must review the performance of the development against the Operation Environmental Management Plan (refer to condition 10.4 of this consent), the conditions of this consent and other licences and approvals relating to the development. The AEMR must include, but not necessarily be limited to:

a) details of compliance with the conditions of this consent;

b) a copy of the Complaints Register (refer to condition 9.5 of this consent) for the preceding twelve-month period (exclusive of personal details), and details of how theses complaints were addressed and resolved;

c) a comparison of the environmental impacts and performance of the development against the environmental impacts and performance predicted in the EIS;

d) results of all environmental monitoring required under this consent and other approvals, including interpretations and discussion by a suitably qualified person;

e) a list of all occasions in the preceding twelve-month period when environmental performance goals for the development have not been achieved, including any entanglement incidents, indicating the reason for failure to meet the goals and the action taken to rectify and prevent recurrence of that type of incident;

f) identification of trends in monitoring data over the life of the development to date;

g) a list of variations obtained to approvals applicable to the development and to the site during the preceding twelve-month period; and

h) environmental management targets and strategies for the following twelve-month period, taking into account identified trends in monitoring results.



11.4 The Applicant must submit a copy of the AEMR to the Director-General, NSW Department of Primary Industries and Council every year, with:

a) the first AEMR to be submitted within twelve months of commencement of operation of the development; and

b) the second and subsequent AEMRs to be submitted every twelve months thereafter,



and must be made available to the public upon request.



11.5 The Director-General may require the Applicant to address certain matters in relation to the environmental performance of the development, in response to review of the Annual Environmental Report and any comments received from NSW Department of Primary Industries and/or Council. Any action required to be undertaken must be completed within such period as the Director-General may agree.

APPENDIX A – DECLARED DISEASES



The following diseases are declared to be Class A diseases:



a) in relation to finfish:

· epizootic haematopoietic necrosis;

· infectious haematopoietic necrosis;

· viral haemorrhagic septicaemia;

· bacterial kidney disease;

· epizootic ulcerative syndrome;

· infectious pancreatic necrosis;

· Aeromonas salmonicida infection;

· viral nervous necrosis;

· yersiniosis; and

· whirling disease;



b) in relation to molluscs;

· bonamiosis;

· haplosporidiosis;

· marteiliosis;

· mikrocytosis;

· perkiniosis; and

· irodviroses;



c) in relation to crustaceans

· baculoviral midgut gland necrosis;

· crayfish plague;

· infectious hypodermal and haematopoietic necrosis;

· bacuovirus infection;

· yellowhead disease;

· white tail disease; and

· white spot syndrome virus;



The following diseases are declared to be Class B diseases:



· Northern Pacific sea-star; and

· toxic dinoflagellates

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APPENDIX B – PART 3A PERMIT GENERAL CONDITIONS



The Department of Infrastructure, Planning and Natural Resources (the Department) has an approval role in relation to this development. Part of the proposed works associated with the development are within 40 metres of Protected Waters, therefore a Permit under Part 3A of the Rivers and Foreshores Improvement (RFI) Act 1948 must be applied for and obtained by the Applicant before works in this area may commence.

Pursuant to Part 3A of the RFI Act the Department has indicated that it could provide in-principle approval for a permit subject to compliance with the following terms:

1. GENERAL CONDITIONS



· The location and nature of the operation as shown in the Development Application shall not be altered, except as specified by the following conditions.



· The Permit will be granted for twelve months from the date of formal approval and can be renewed on an annual basis. Any application for renewal shall be lodged one month prior to expiry date.



· The Permit will not be transferable to any other person or company and will not allow works at any other site. The location and nature of any works described in the Permit application shall not be altered.



· A copy of the Permit shall be kept on site at all times and made available to the Department’s officers upon request.



· The Permit holder shall notify the Department within 7 days of any change in:



(a) site management;

(b) land ownership; and

(c) land occupation.



· The Permit will not give the holder the right to occupy any land without the owners’ consent or relieve the holder of any obligation which may exist to also obtain permission from Local Government or any other Authorities who may have some form of control over the site of the work and / or the development proposed.



· The works shall not damage or interfere in any way with:



(a) vegetation outside the area of the works;

(b) the stability of adjacent or nearby waterway bank or bed; and

(c) the quality of water in the waterway.



· Any displaced materials are to be stabilised or relocated and made secure so that these materials will not detrimentally affect any waterway or riparian area.



· If in the opinion of an authorised Departmental officer, any work is being carried out in such a manner as it may damage or detrimentally affect any waterway or riparian area, the works considered to be causing or contributing to the problem shall cease upon the oral or written direction of the officer.



· If any of the Permit conditions are breached, the permit holder shall pay the Department a breach inspection fee of up to $500 per inspection. This fee shall be charged for the initial breach inspection and all subsequent inspection until the breach has been rectified to the satisfaction of the Department.



· The stabilisation and progressive rehabilitation of the area, to the satisfaction of the Department, is the responsibility of the Permit holder and owner or occupier of the land.



· The Permit holder and the owner or occupier of the land are responsible for any excavation or removal of material undertaken by any other person or company at this site.



· Erosion and sediment control measures shall be provided for the duration of the works and until the site is stabilised/ rehabilitated.



· Any stormwater discharge from the site shall not result in any erosion or instability of the bank or bed.



· Works are to be designed and constructed such that there is no detrimental change in hydraulic behaviour, causing sedimentation, erosion, reduction in waterway or permanent diversion or pollution of the waterway.



· Any proposed activity or structure shall comply with relevant Australian Standards, Development Control Plans (DCPs), Local Environmental Plans (LEPs), State Environmental Planning Policies (SEPPs) or Regional Environmental Planning policies (REPs) for works of this nature.



· The Permit is issued for the works to be carried out on freehold land. The Permit does not extend to any works:



(a) on Crown Land;

(b) by a public authority operating within the lawful activities of its Act;

(c) considered to be core activities for mineral extraction and on land subject to a mining lease;

(d) located more than 40 m from the top of bank or shore of protected water; and

(e) works constructed or installed pursuant to a right exercisable under the Water Act 1912.



· In assessing any subsequent Permit application, the Department will require the following additional information:



(a) An Erosion and Sediment Control Plan prepared in accordance with Council’s Erosion and Sediment Control Plan Guidelines and to the satisfaction of the Department.

(b) A Vegetation Management Plan prepared for the development by a suitably qualified person in consultation with and to the satisfaction of the Department. The plan is to include details on:

- all the vegetation within 40m of the watercourse;

- vegetation to be removed and vegetation to be retained;

- vegetation proposed for establishment;

- the staging of the works;

- the establishment of riparian zones using local native endemic species;

- vegetation maintenance, monitoring and performance criteria; and

- who is to undertake the tasks.

(c) A Stormwater Management Plan.



2. SPECIFIC CONDITIONS – TIDAL STRUCTURES



· The structure must be designed and constructed so that it complies with NSW Department of Primary Industries and NSW Maritime Authority’s requirements.



· The structure must be designed and constructed to prevent scour of the adjoining bed/banks and undercutting of the structure.



· In demolishing the existing structure, all materials and debris is to be removed off-site and disposed off at an authorised waste disposal facility. No damage is to occur to the bed or foreshore of the estuary.



3. SPECIAL CONDITIONS – CROWN LAND



· The proposed development is adjacent to Crown Land. The development must not impact upon or occupy any Crown Land. Separate approval from the Department of Lands must be obtained for use and occupation of any Crown Land.

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