Hillview Quarries has lost its appeal to restart stone extraction at a site in Boundary Rd, Dromana. VCAT Member Judith Perlstein ruled that the relevant planning permit “has expired because the use of the land for the purpose of extractive industry did not start within two years of the issue of the permit”.
She further ruled that, alternatively the permit, P97/1656, had expired because no extraction had occurred for more than two years. The ‘P97’ refers to the year in which the permit was sought.
It is a decisive victory for community opposition to the quarry, which is on land adjoining the derelict Pioneer quarry, which Hillview bought from Pioneer in 1998 and, according to locals, was never worked for lack of stone.
Hillview was seeking an “open” permit – one with no expiry date, meaning the quarry owner, the philanthropic Ross Trust, would probably never have to undertake a clean-up at its land and neighbouring land, including a state park.
Hillview had argued that removing expiry dates on the permit “is entirely consistent with Mornington Peninsula Planning Scheme prohibition on including time limits in extractive industry permit and reflects the latest knowledge about the remaining reserves at the site”.
Hillview CEO Mr Paul Nitas had stated that by not approving the continuance and amendments, the cost of rock “would increase costs to the consumer in the future”.
The old Pioneer quarry was proposed by Peninsula Waste Management Pty Ltd and Mornington Peninsula Shire for use as a rubbish tip. The Environment Protection Authority refused this in September 2013.
Having failed to have the quarry approved as a tip and now failing to get its permit extended, the owner could face the remedial clean-up that is part of its permit conditions, at an estimated cost of $3-$5 million. The disused quarry is said to be infested with weed species that have escaped into adjacent Arthurs Seat State Park.
No appeal is likely against VCAT’s decision unless the owner’s legal team can identify a point of law to take to the Supreme Court. It is more likely that grounds might be explored for seeking a new permit from the shire.
She accepted this was a principle recognised in the planning scheme. “However, this depends on the continuing validity of any relevant planning permit,” she stated in her decision. ” It does not mean that a planning permit for extractive industry may never expire due to discontinuance of use.”
This principle “applies with even more force if the period of discontinuance is [as is the case here] 15 years or more.”
Member Perlstein found no passive or active stone extraction had occurred in the two years following the permit being issued . “The permit has therefore expired.”
She continued: “[I]f I am wrong in this finding … I find that the use has been discontinued for more than two years and the permit has therefore expired.
“[T]he Tribunal has no power to amend the permit as requested. As a result, the application must be refused.”
The case was originally set down for hearing on 13 June following a compulsory conference this Thursday, 4 May.