Mr Simon Smith
The Deputy Director General
Climate Change and Environment Protection Group
PO Box A290
SYDNEY SOUTH NSW 1232 15 August 2007
SAND MINING AT "THE MOORINGS" TOURIST RECREATION FACILITY, GEORGE BASS DRIVE, TOMAKIN, EUROBODALLA SHIRE
Dear Mr Smith
Our Association would like your Department to investigate what
we believe is a proposal to sand mine without proper consent.
The owners of the property claim they will just be "removing
spoil".
BACKGROUND
"The Moorings" has a long and frequently disturbing
history. There have been so many modifications over the years
that no one at Eurobodalla Shire Council appears to have a clear
idea of what has been approved.
PAST SAND MINING
In 1993, when a golf course was being constructed, the developers
were allowed to sell up to 57,763 cubic metres of spoil from the
construction of the ponds. According to the legal opinion given
to Council at that time (see attached - page 3) this was not considered
an extractive industry because the solicitor did "not believe
that, at present the proprietors are obtaining income from the
land by the sale of the extracted material" The solicitor
argued that the sale of spoil from extraction to construct the
ponds merely "off-set the cost excavation" !! The opinion
is very questionable but even so there can be no such argument
this time.
The developers were able to operate a sand quarry in the past, undercutting prices of legitimate quarries by not meeting the requirements that approved quarries must meet. We argue that the consent to sell sand removed during the development of the golf course and driving range pond has lapsed since the construction of the golf course finished many years ago.
At the date of writing this letter Council has not approved
a new DA to deepen ponds and remove spoil nor is such a DA listed
on Council's website.
Arguments for renewed mining, published in the local paper by
the owners, are not credible.
The most credible reason was omitted - to make a profit by operating a sand quarry at minimum cost.
SAND MINING IN AREAS WITH A HIGH WATER TABLE
We were advised by Council in November1996 that Schedule 3 of
the Regulations had changed. In future proposals of this scale
in high water table areas would be a designated development. Is
this still the case?
SAND EXTRACTION AT THE MOORINGS SHOULD BE ASSESSED AS A
QUARRY
If there is to be a sand quarry at The Moorings then it should
be approved as such and should meet all licence requirements.
It also needs to have an adequate and properly marked turning
lane on George Bass Drive
A proper environmental impact study needs to be conducted and all conditions and requirements that apply to other quarries should apply at "The Moorings". Royalties should be set at a level so that the mine is not able to unfairly compete with other quarries in the Shire and so that Council can recover some of the costs that will result from damage to Shire roads. Quarterly returns on the amount excavated are suspect unless they are verified by an independent expert since royalties paid depend on the volume sold.
We look forward to seeing the results of your investigation
and the answers to our questions.
- Is the proposed activity a sand mine and if not why not?
- Does the regulation regarding excavation in areas with a high
water table apply?
- What requirements would a legitimate sand mine have to meet?
Jenny Edwards, Secretary
EXTRACT from report to Council 28 September 1993
A11 Development application No 270/91 - TOMAKIN ADDITIONS TO
TOURIST RECREATION FACILITY Ref 91.2264D
Page 3.58 legal opinion re extractive industry
"This matter has been referred to Council's Solicitor for
a legal opinion and the following are extracts from his opinion:
'The question of whether the excavation for the purpose of construction
of ponds is a matter which must be viewed as a matter of degree.
In cannot be said that every excavation carried out on land (even
if the spoil is sold) is an extractive industry.
It is presumed that it is necessary to excavate to provide ponds
for the purpose of aquaculture. It appears to me that consideration
should be given as to what the income from the lands presently
consists of. As I am familiar with the development on the land
as such development presently exits, it appears to me that the
main income from the land at present is from accommodation and
providing facilities with such accommodation. I do not believe
that, at present the proprietors are obtaining income from the
land by the sale of the extracted material. I will make that assumption
but if I am incorrect then you should correct me in that regard.
That being the case, I am of the opinion that the excavation of
materials for the purpose of construction of ponds for aquaculture
is not of itself an extractive industry and that if the spoil
from such extraction is sold to off-set the cost of excavation,
I do not believe that it amounts to an extractive industry.
I believe that if an Appeal were lodged from Council's refusal
of the application on the ground that no EIS had been lodged with
Council on the basis that it is an extractive industry, that Council
would be in a position where it could well lose such Appeal.'
Having regard to the above, the part of the application that relates
to pond construction should not be construed as "extractive
industry" as defined in the Model Provisions. Notwithstanding
this however, it is considered that further assessment needs to
be made of the pond construction component of the application.
This could can be achieved by imposing a condition of consent
requiring the applicant to provide details of the proposed staging
of earthworks prior to any excavation and the submission of an
annual environmental monitoring report including details of areas
excavated, filled or rehabilitated in the previous 12 month period,
the volume of material extracted, processed and transported from
the site each quarter and the estimated areas and volumes of extraction
for the following 12 month period."