1. The Objector Neville Diamond by his agent Tom McLoughlin seeks joinder as:

A.  a party under s.39A (a) and/or (b) of the Land and Environment Court Act (LEC Act) ; and alternatively

B. as an intervenor under s.38 (2) of the LEC Act in the sense of Double Bay Marina precedent to adduce evidence and participate in proceedings.

Part 1: Tests in 39A already addressed in Affidavit

2. A threshold matter is that on 20^th June 2008 both parties claimed before Justice Pain (and the Registrar beforehand same day) “the Affidavit” of the Objector filed with urgency on 13^th June (following directions of the Registrar June 6^th 08) being 160 pages in total, served on 16^th June 2008, needed more time to be digested. It should be noted that the Affidavit is roughly 90% originated from either Party which should already be well within their knowledge.

We say these submissions here reinforce the Objector’s Affidavit and does not replace that approach. We submit it would be procedurally oppressive for an application to be a party/intervenor to  involve ‘front ending’ a full analysis of the evidence in the Affidavit properly to be resolved in the hearing of the case itself.  Even so as agreed we make these submissions to further clarify how the material in the Affidavit satisfies the tests of s.39A and s.38(2).

Part 2: GCC does not have clean hands opposing party/intervenor status

3. A second threshold matter in considering factors under either S.39A or s.38(2) of the LEC Act is that the First Respondent (GCC) does not have clean hands opposing the Objector becoming a party/intervenor: A letter dated 6^th May 2008  found at page 157, annexure AJ in the Affidavit has the General Manager of GCC confirming an “oversight” to the Objector. In reality this was an outright failure to notify objectors in a timely way of the appeal by Applicant Kettle for Coca Cola Amatil (CCA)  filed 20/3/08 despite GCC’s legal obligation under the Environmental Planning & Assessment Act 1979 to so notify community objectors in a timely way of this s.96AA appeal.

This egregious delay caused many objectors (refer letter dated 6^th May 2008 annexure AL p159 letter to Margaret Pontifix Mangrove Mountain Districts Community Group Inc, registered charity - MMDCG) to complain given the hard fought litigation involving:

-          Community objectors concerned inter alia about sustainable agriculture as witnesses and local landholder Azzopardi as a party in 2005 original court consent for 2 year trial of 66 ML/YR level of extraction in 2005 adjudicated by Commissioner Tim Moore in the LEC;

-           Similarly in 2006 modification of groundwater cap called ‘The Trigger’ Case in 2006 to the LEC. 

The first callover in this appeal was set on 17/4/08. The council as consent authority did not send it’s notification until letter of 29/4/08 which only arrived first week of May to the Objector or any other objector (refer annexure D, page 20 in the Affidavit).  It was only a fluke that the Azzopardi’s former lawyer still on the record received an e-court notification in late April (refer annexure “AI” page p155 Affidavit).

This concession by the GCC GM of “an oversight” does not nearly describe the impact of this egregious delay by GCC allowing the Applicant to nominate their choice of a court appointed expert Lane (CAE) duly consented to by GCC unopposed before this court well before 6 May 2008 (refer letter Alan Ford, GCC legal officer annexure AL at page p159 Affidavit).

We say both parties reasonably foresaw in context the CAE would be opposed by community objectors. That the community objectors would likely have proposed respected independent NSW based local hydrologists like Chris Jewell or Lionel Etheridge with extensive experience in the tricky nature of semi confined, semi related multiple perched sandstone aquifers, and not Mr Lane from Melbourne.

We say this critical one month delay is prima facie evidence of bad faith on the part of GCC and possibly CCA interfering with objectors’ procedural rights to participate in selection of the court appointed expert (CAE). This is particularly so as both GCC and apparently CCA have conspicuously omitted reference to the leading research to date by Alkhatib and Merrick of November 2006 at the University of Technology Sydney into the Peats Ridge Springs/Mangrove Mountain aquifer (refer annexure K at page 52 of the Affidavit) being a report for then NSW Dept of Natural Resources.

We say GCC and Kettle/CCA are effectively seeking to ensure a closed shop as regards source of expert evidence provided and the presentation of that evidence already available. That in effect the result of the hearing follows choice of CAE which would be an abuse of process.

Part 3: Additional evidence in Green Folder 2005 reportedly missing in custody of GCC lawyers

4. A third threshold matter stated in point 7 of the Affidavit and annexure AC1 at page 123 is the missing Green Folder belonging to local authority Margaret Pontifix of MMDCG and retired teacher in biology and agriculture, graduate of Newcastle University. This folder was sought by Commissioner Tim Moore in 2005 and reportedly returned via Donnellan & Co where the trail runs cold. We call on the GCC solicitors to produce the baseline evidence in the Green Folder as per annexure AE in the Affidavit at page 125.

Part 4: CAE blinks twice with delay in reporting date once Objector seeks to join as a party

5. A fourth  threshold matter: On 20 June 2008 the Registrar was concerned about the CAE failure to comply with the reporting deadline of the LEC.

We submit it is not just coincidence, notwithstanding email of the CAE read to the Registrar on 20^th June 08 about overwork, that the CAE Lane has sought two delays in complying with the deadline for his report to the LEC in these proceedings when it had become clear from late May early June 2008 by way of correspondence

-          refer annexure E to the Affidavit at p21 dated 31 May 2008  Objector’s agent to LEC Registry and

-           even more so by 4^th June 2008 Objector’s agent email to solicitor for GCC in annexure AE at page 125 of the Affidavit calling for existing evidence to be produced,

-          5^th June 2008 refer Objector agent’s letter to DWE officer De Silva annexure J at page 49 of the Affidavit, and

-          Objector’s agent to state govt ministers 12^th June 2008 at p26 annexure G to the Affidavit,  

that community objectors were willing to engage in this argument over relevant expert evidence and how it is being presented to the LEC.

As we understand CAE Lane has missed his 6^th of June 2008 deadline, his 20^th of June 2008 deadline and now has a 21^st of July deadline and says he will be overseas in the meantime too. Already we understand from GCC’s solicitor Byrd that the CAE has decided ‘the job is bigger than he expected’ pers comm with Objector’s agent 20 June 2008 in the precincts of the court.

These two delays by the CAE have also happened in parallel with the Affidavit of the objector quoting correspondence and expert evidence potentially critical of his work from:

-          Dr Brian Marshall retired hydro-geologist formerly of UTS (refer point 6 (j) at page 4 of the Affidavit by personal communication with the Objector’s agent),

-          Academic Noel Merrick of University of Technology Sydney in his report of November 2006 (refer point 6 (e) and annexure K of the Affidavit at page 52)  and

-          Coca Cola Amatil’s own ERM expert evidence of 2004 (refer point 6 (r) at page 5 of the Affidavit and annexure AA at page 102) regarding semi confined, inter related multiple sandstone aquifers. Similarly expert Brink to Livio as then owner of the land and supplier to CCA in 1996. At point 6 (r) and annexure Z of the Affidavit at page 100.

These delays come despite CAE Lane in the 2006 ‘Trigger Case’ on the same site could be reasonably expected to have much of the information about this site to hand given some reasonable opportunity for updating. His delays are not reasonable in this light and require more serious explanation. We say he has been confronted by the alternative expert evidence pushed forward by the Obejctor through his agent.

6. We say it follows from paragraphs above 2, 3, 4 and 5 (and to pre empt what follows in these submissions), that these delays by the CAE when taken in context of likely contrary expert evidence in the Objector’s Affidavit tends to the conclusion under s.39A LEC Act:

(a)     The substantial weight of the Objector’s particular knowledge (as per the test outlined in Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195 case);

(b)     the fact the Objector does not stand in the shoes of the council (test in Meriton Apartments Pty Ltd v Fairfield City Council (no.2) [2005] NSWLEC 121 ) even on the same issues raised; and

(c)     capacity of the Objector to access relevant expert documentation and support of his agent and of other objector stakeholders, and access to community stakeholders like Mangrove Mountain District Community Group Inc (a registered charity) who have provided a letter of support at annexure F to the Affidavit at page 25.amount to substantial additional matters, better informing the court, even though contrary to the consensus of the parties (as per the tests in Deancliff Developments Pty Ltd v Hornsby Shire Council  [2004] NSWLEC 769)

Part 5: Objector’s successful litigation with this agent in 1998, no costs ordered, new consent conditions

7. A fifth threshold matter is that this Objector has successfully litigated in this Court in the past to achieve new court endorsed consent conditions when participating with and under the discipline of this agent Tom McLoughlin (refer resume annexure A at page 10 of the Affidavit): In a previous case Diamond v Baulkham Hills Shire Council (BHSC) & PF Formation Pty Ltd, (10064 of 1998) with Bruce Woolf solicitor  for Diamond and Brian Preston as counsel for BHSC, unreported on the LEC court website but involving demonstrated fundraising, Woolf was not pro bono and the case ran several days. In that 1998 case each party paid their own costs, and stricter conditions for both rehabilitation of the sand mine site and protection of the crown reserve called Trig Hill was achieved at Maroota. We say this case will be progessed by the Objector with similar discipline with reasonable prospects of a similar result of improved consent conditions and protection of the public interest.

8. The Objector has been given a letter of moral support in this case similarly by public interest MMDCG as per letter of 6 June 2008 at point 6 and annexure F to the Affidavit at page 25.

Part 6: Satisfying the test in s.39A (a)

9 The section reads [bold added]

39A Joinder of parties in certain appeals

On an appeal under section …96AA ….of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion: 

“(a) that the person is able to raise an issue that should be considered in relation to the appeal but would not be likely to be sufficiently addressed if the person were not joined as a party

In this regard we note the GCC Statement of Facts & Contentions filed 28 April 2008 addresses to some degree the Objector’s issues listed in particular in point 6 of the Affidavit from (a) to (s).  However we say these are unlikely to be “sufficiently” addressed as per Meriton No. 2 Case even where they are the same issue, and much related evidence not addressed at all

Issues addressed by GCC as well as the Objector in his Affidavit include:

-  6 (f) – failure to complete the 2 year trial at 66ML/YR (GCC Issue 1); 

- 6 (k) under utilisation of the licensed volume (GCC Issue 2)

- In general terms GCC refers to

-          precautionary principle (GCC Issue 2)

-          climate change, water restrictions and insufficient research on the aquifer (GCC issue 3).

But there is no mention by GCC to date nor in their public council reports and there can be little confidence given context above GCC will raise specific information relating to these issues in the Affidavit namely:

-          6 (a) no full EIS with need for law reform in this area given gap in Sch 3, 2000 Regulation for designated development;

-          6(b) bulk export of water should be banned as a consent condition

-          6(c) consent condition to rehabilitate the waterway

-          6(d) suspicious disappearance of baseline evidence in the notorious “Green Folder”  evidence in 2005 litigation re condition of the waterway reportedly lost by council’s solicitor’s (refer handwritten  letter of Margaret Pontifix point 7 of the Affidavit and annexure AC1 dated 6^th June 2008 at page 123)

-          6(e) to date council’s reports and approach specifically fails to address the November 2006 groundwater study of Alkhatib & Merrick

-          6 (f) GCC LEP 381 policy to squeeze not entrench bottled water industry

-          6 (g) specific detail on climate – driest month of May on record

-          6(i) public interest in escalating price of petrol such that transport of water by the mains to the tap is preferable in the public interest under s.79C (e) of the Land & Environment Planning Act 1979, to in effect favour agricultural use of water near Sydney which has no option but to use fossil fuel;

-          And so on from 6(j) to 6 (s) at pages 4 and 5  in the Affidavit and annexures referred to there especially regarding potential health concerns at 6(s).

The Objector does not seek to adduce extra evidence of any of these matters (except a few more ancillary documents) other than what is in the Affidavit which largely relates to material  already held by either or both GCC and CCA/Kettle which the LEC should be appraised of, subject to compelling new evidence from subpoena material like the missing Green Folder and council’s file.

Rather the Objector seeks to present this substantial evidence both under the GCC’s own issues 1-3 including the precautionary principle. We submit the onus is on the Applicant to resolve that genuine scientific doubt.

9A. The Objector’s public interest credentials include for several years lobbying the state government on stricter water regulation of this specific Peats Ridge Springs/Mangrove Mountain area in the public interest which has resulted in both Gosford Council and the State Minister Koperberg and now Rees instituting investigation by the external auditor private consultants called Internal Audit Bureau. This is corroborated by correspondence and materials in the Affidavit at point 6 (q) and annexures U, V, W, X, X1 and Y at pages 93-99. The Gosford report in particular remains secret.

10. As stated similarly in paragraph 6 on the legal precedents above we say that the Objector has by his Affidavit and the litigation context outlined in these submissions above, demonstrated

- particular knowledge or access to the same by his agent and supporters: Deancliff Case

- has evidence that Council could not adequately represent given past history of this case, and interests are not the same being a broader public interest: Meriton No.2 Case

- there is utility in the Objector being a Party: Meriton No.2 Case

- ability to raise substantial additional matters: Deancliff Case

- it is not relevant that he is outside the consensus of the parties: Deancliff Case

- the court will be better informed: Deancliff Case  

- it is not essential for the Objector to be a proprietary stakeholder: Meriton No.2 Case.

11. In addition we note Justice Bignold in Mahogany Ridge Developments Pty Ltd v Port Stephens Council [2004] NSWLEC 555

19 Moreover, the deliberate broadening of the basis upon which persons might become parties to a planning appeal is at least suggestive of an intention to elevate the participation in proceedings of persons who might otherwise enjoy a more restricted participation in a planning appeal by virtue of a “Double Bay Marina” type order being made in favour of that person.
20 This is not to equate the position of a person who might obtain a “Double Bay Marina” type order to the position of a person joined as a party pursuant to a s 39A order. Nor is it to automatically translate the status of such a person in whose favour a “Double Bay Marina” type order has been made to the status of a party pursuant to a s 39A order.
21 In the light of the foregoing considerations, I am of the opinion that the discretion conferred upon the Court by s 39A, although expressly a qualified discretion, is to be construed beneficially as conferring a wide judicial discretion, conformably within the broadly defined grant of power.

Part 7: The Objector’s application under s.39A (b) LEC Act

12. The section reads

“39A Joinder of parties in certain appeals

On an appeal under section …96AA ….of the Environmental Planning and Assessment Act 1979, the Court may, at any time, on the application of a person or of its own motion, order the joinder of a person as a party to the appeal if the Court is of the opinion:  

(b) that:

(i) it is in the interests of justice, or

(ii) it is in the public interest “.

The Objector is represented  pro bono by his agent Tom McLoughlin

currently an applicant to the NSW Law Society for sole practitioner status with 16 years full time involvement in public interest campaigns including legal conflicts.  A resume of the agent is attached to the Objector’s Affidavit at annexure A at page 10