Mood:
sadTopic: legal
Next Tuesday 11th November 2008 the application to "modify" the above sandmine by allowing another whopping 1.3 million tonnes of sand to be extracted will be considered. It comes before the great and good Hawkesbury City Council under the leadership of Liberal Party Mayor Bart Bassett and other notable councillors as former mayor Rex Stubbs and Liberal Party candidate Kevin Connolly.
Most reasonable observers might think for a designated development like this such an expansion right on a creek running into the Blue Mountains World Heritage area would justify a new EIS. The last time it was before council on 29 July 2008 it was recommended by the chief planner Matt Owens on legal advice to be refused and a notice to cease to operate be issued.
Some councillors suggested they would vote against their own officer's recommendation. Neville Diamond took it to the Land & Environment court before councillors could vote. He lost on financial technicallity around being an undischarged bankrupt. Now it is going back to council for determination.
Since then community groups like Colong Foundation for Wilderness, NSW National Parks Association, The Wilderness Society, Blue Mountains Conservation Society and local Hawkesbury Council Watch and other residents have all expressed concern.
Below is the final part in the diary by way of affidavit of Neville Diamond former neighbour of the Birdon Contracting Pty Ltd sandmine which has been operating for more years illegally than legally this last 20 years. The company has made significant profits while giving the neighbours, the local council and the state authorities the run around ... and worse.
Way back in 1995 after 10 years of illegal operations an Environmental Impact Statement was prepared to regularise the whole thing which states at page 21 unders section 5.1.2
Rehabilitation
"Rehabilitation will be undertaken on a regular programme, ensuring on ly 30% of the site contains areas affected by the sand extraction."
The site pictured above taken in a council flyover in 2005 shows no staged rehabilitation at all. Clearly there was meant to be staged approval from 1 to 6 as each stage was rehabilitated. The developer is in breach big time.
Reports that the State have not been too busy with prosecutions of mining companies is also a public concern:
Previous posts in this series are here:
Thursday, 30 October 2008 Diamond Diary Part 5: Illegal works on crown land intercepting Tinda Ck headwaters Mood:blue Topic: legal
Tuesday, 28 October 2008 Diamond Diary Part 4: Attacking the messenger, not the vandalism Mood:don't ask, Topic: legal
25 October 2008 Diamond Diary Part 3: Getting to grips with the costs regime in the NSW Land & Environment Court, Mood:
not sure, Topic: legal
Thursday, 23 October 2008 Diamond Diary Part 2: How I went bankrupt 'doing litigation for Dixon Sands' Mood:accident prone Topic: legal
Wednesday, 22 October 2008 Diamond Diary Part 1: Amazing career of environmental litigation Mood:on fire Topic: legal
Tuesday, 21 October 2008 World heritage vandal gets technical win in Land & Environment Court ...for now Mood:16 October 2008 Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am Mood:
Friday, 10 October 2008 Misleading plan and letter by sandminer in threat to Blue Mtns World Heritage Area? Mood:sharp Topic: legal
6 October 2008 Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area? Mood:
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[Diamond Diary continues from Part 5 here]
- strong evidence for the declaratory orders sought in the Amended Application
62. This section of my Affidavit of Evidence in Reply amounts to a first draft of the points of claim to support the declaratory orders sought in the Amended Application filed and served the same day. Following the order of the Amended Application:
[continued at paragraph 62, order 2 of 25 sought]
2. A declaration that the Second Respondent had no power to grant the consent on the 14th of December 2004 for an application by First Respondent under section 96 of the Environmental Planning and Assessment Act 1979 (“EPAA.
Particulars:
Follows from lapsing of consent from around 1997 for failure by Birdon to comply with consent condition A.4.
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3. A declaration that the Second Respondent has no power under the EPAA to grant consent to the section 96 application under the EPAA lodged by First Respondent in 2006 to modify the DA.
Particulars:
Follows from lapsing of consent from around 1999 for failure by Birdon to comply with consent condition A.4. Refer also to copy of s.96 application 2006 by Unwelt for Birdon dated 11 July 2008, and follow up correspondence from Unwelt dated 24 July 2007 from at annexure 32
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4. A declaration that the consents for development application 192/85 and DA 134/95 above, and the purported s.96 modification approval of DA 134/95, were all granted retrospectively by the Second Respondent for work already commenced without lawful approval.
Particulars:
(a) Regarding DA 192/85 this is my Evidence from knowledge of the council file and direct observation.
(b) Regarding DA 192/85 illegal works and demands for restoration works refer to letter of GM McCully – GM of HCC to Stout dated October 14 1988. Refer annexure 33.
(c) Regarding s. 96 modifications after 1997 for DA 134/95 follows from lapsing of consent from around 1999 for failure by Birdon to comply with consent condition A.4 in relation to the later consents,
(d) Admission by council by their letter of Letter General Manager HCC to Birdon dated 15 January 1996 at annexure 31 mentioned above. Refer also limited conditions of consent for a ‘farm dam’ 11/11/86 at annexure 1 page 6 of First Diamond Affidavit.
(e) Memo dated 29 Dec 1995 by Paul Bourne DLWC to file CC Mr Radcliffe Legal Branch, “An unauthorised extractive industry is currently operating at the site, copy at annexure 33 for particulars of order 1 sought.
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5. A declaration that DA 134/95 was a staged approval with deferred commencement for each individual stage 1, 2, 3, 4, 5 and 6 dependent on full compliance for the previous stage with (a) the rehabilitation plan and (b) the consent conditions A. 1 to 33 of the consent as set out in the letter of consent from the Second Respondent to First Respondent dated 23rd December 1996 including background in two reports of the Second Respondent of 10th December 1996.
Particulars:
1. Letter 24 December 1996 by Peter Lee, Branch Manager Buiding & Development to Neville Diamond – “The approval is subject to conditions as a Staged Approval for compliance with each stage of the operations.”
2. Letter dated 20/8/96 by NSW NPWS Lou Ewins Manager Environmental Planning Unit SYDNEY ZONE to GM/HCC: “As noted in previous correspondence, the Service recommends that should consent be given Council should consider a staged approval process with approval of each stage dependent on satisfactory performance of environmental safeguards (as assessed by proposed water quality monitoring) and site rehabilitation.”
3. Memo officer Greg Hall of HCC to Malcolm Ryan dated 17/9/2003 “Legal Opinion of the Consent “would be carried out in stages and in recognition of concerns raised by the residents and govt agencies for the development to pollute ….staged approval under Sec 91 AB be permitted … further stages only permitted where the development can illustrate that the revegetation/rehabilitation is taking place ….”
4. Letter of legal advice by Abbott Tout to GM HCC dated 12 July 2000 to GM -HCC regarding staging and deferred commencement and refers to evidence of meaning contained in the original officers report to full council dated 10 December 1996, and resolution of council same date.
5. Precedent case of Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd 98/40130 by Lloyd J
Documents about staged development referred to above are attached at annexure 34
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6. An order that the First Respondent and their respective servants and agents and assigns, including successors in title, be restrained from using, or permitting to be used, or causing to be used, the Property until such time that the Respondent has a lawful development approval for any future sandmining.
7. An order that the First Respondent and their respective servants and agents and assigns, including successors in title, be restrained from using, or permitting to be used, or causing to be used, upon the Property all plant and equipment associated with extractive industry specifically the wash / screening plant/cyclone, including the associated house / dwelling /sheds and the septic tank system, until such time as a building application has been considered and approved by Council.
8. An order that the First Respondent and their respective servants and agents and assigns, including successors in title, be restrained from using, or permitting to be used, or causing to be used, the Property for any extractive industry until such time as the First Respondent has caused to be carried out upon the Property the progressive rehabilitation and revegetation of
(a) Tinda Creek including restoration of natural flow running through the Property; and
(b) the Property itself.
9. An order that the First Respondent must substantially commence rehabilitation of Tinda Creek including restoration of natural flow on the Property, and the Property itself within 9 months and be completed within 2 years of commencement of rehabilitation works.
10. An order that the First Respondent retain within 3 months an independent qualified hydrologist to assess the interchange between Tinda Creek and the sandmine on the Property in order to formulate a rehabilitation plan, the assessment to be completed within 6 months. The hydrologist should consider work by Chris Jewell in a report on the Property for the Second Respondent in 2007, current water licences and the principles of ecological sustainability including advice of NSW Department of Environment & Climate Change. A copy of instructions to the consultant to be provided to the Applicant and the Second Respondent.
11. An order that the First Respondent retains within 3 months an independent qualified ecological consultant to prepare a rehabilitation plan for Tinda Creek on the Property and the Property itself, the plan to be completed within 6 months. A copy of instructions to the consultant to be provided to the Applicant and the Second Respondent.
12. An order that the Second Respondent obtain a qualified independent peer review of both the hydrological assessment and rehabilitation plan. This can be paid for out of the $50,000 rehabilitation bond held the Second Respondent.
13. An order that if the First Respondent fails to substantially commence implementing orders 9 and 10 within 3 months, or fails to finalise plans within 6 months, the Second Respondent must proceed to do so at the expense of the First Respondent
14. Such further orders as the court deems necessary for rehabilitation of Tinda Creek and the Property.
Particulars
Declarartory orders 6-14 sought are a regime over the next 2 years and 9 months described with the help of my court agent for rehabilitation and recovery of Tinda Creek which follows from findings of the lapsed consent above, and the absence of any new EIS or approval for works to continue, in support of HCC officer’s recommendation of 29 July 2008 to recommend issuing a cease to operate notice.
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16. A declaration that First Respondent has operated on Lot 2 DP 6288806 out of the approved area to the north east of the site, the approved areas being that which is set out in the amended plan no. PS91/E130 by Port Stephens Design Services dated April 1996 as referred to in the 1996 development consent conditions A. 1 and 2.
Particulars
(a) Memo to file dated 10 May 2005 Greg Hall Town Planning Co-Ordinator “Meeting on the 2 May 2005 with Tom Bruce concerning DA 134/95…when the site plan of the EMP is compared with the EIS and approved plans the excavated area is outside the approved plans … Tom in discussion acknowledged that the mining was outside the area shown on the plans (referred to in the consent).”
(b) Letter 7 November 2005 Greg Hall Town Planning Co-Ordinator to Birdon Contracting Pty Ltd: “It is noted that some drainage works are now being undertaken on an adjoining property and under the provisions of Section 96, Council officers are of the view that the addition of an additional property onto the description of the development consent DA 0134/95 could not be considered under Section 96. In this regard a new development application may be required for proposed works as they cannot be considered with the provisions of Section 96 of the Environmental Planning and Assessment Act.”
(c) Letter dated 26 June 2007 by Greg Hall Town Planning Co-Ordinator HCC to Birdon Contracting Pty Ltd: “The plan submitted with the s.96 application shows the proposed extraction area being approximately 22ha however the consultant Port Stephens Design Services confirmed in writing that the area of extraction by the original application was 14ha. [new para] The current application to modify the consent proposed to increase the area of extraction from 14 ha to approximately 22 ha. [new para] Based on the information provided with the current application it would appear that the total extraction of 2,000,000 tonnes over 25 years will not be exceeded however as the area of excavation on the site has increased from 14ha to 22ha details need to be provided to demonstrate how this total will not be exceeded with the increase in area of extraction.“ Copy of letter annexure 31 mentioned above for particulars of order 1 sought.
(d) Letter 12 March 2006 Robert Montgomery Executive Manger Town Planning Services to Neville Diamond: “Council has previously written to Birdon Contracting in respect to use of the adjoining property.
(e) Letter 30 August 2005 Tom Bruce - Birdon Contracting Pty Ltd to Greg Hall, Robert Montgomery HCC “Firstly our EIS applied for development of the mining of 22 hectares. Drawings of the mining plan & rehabilitation plan did not indicate this area. This was due to control of the bypass channel [of natural water course of Tinda Creek] around the site so it did not effect the property of the northern boundary. ....To continue mining to maximum depth we wish to extend mining into the north eastern corner of our 22 hectare mining site. “
(f) Refer page 3 section 2.2. of Umwelt Australia Pty Ltd report for Birdon dated June 2006 “The location of the diversion drain along the eastern boundary of the current extraction area limits the extent of resource that could be extracted to approximately 15 hectares compared with the 22 hectares identified in the EIS (Port Stephens Design Services 1995)”
(g) Expert Report of hydrologist Chris Jewell for HCC report of June 2008: section 4.1 in second last paragraph to that section on page 11: "If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow to Tinda Creek would be 204 ML/year, or 53 per cent."
(h) Misleading and or deceptive so called “confusion” over the 1996 approved plan in the Umwelt s.96 covering letter of 11 July 2006 attaching plan SK2 of the same job number showing a 22 ha excavation site. Refer annexure "35" for these.
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17. A declaration that the 1996 development application DA 134/95 by the First Respondent was an invalid application under the applicable Environmental Planning & Assessment Regulation, because there was no consent of the Crown as part owner of the land below 15.24 metres according to the title deed for DP 628806.
Particulars
(a) Letter 7 March 2005 Stephen Fenn Policy Adviser Minister for Lands to Neville Diamond: “However, I understand that at no time during the processing of the Development Application by Hawkesbury City Council was the Department’s consent either sought or given to the activity.”
(b) Title deed Lot 2 Search Dept of Lands dated 3/11/2003: “EXCEPTING LAND BELOW A DEPTH FROM THE SURFACE OF 15.24 METRES BY CROWN GRANT”
(c) Approved plan map 1 of 3 PS91/E130 dated April 1996 shows “DREDGE FINES” the bottom 6 metres of a 20 metre excavation.
(d) Unwelt report of 2006 at page 1 under Introduction 1.0 “current sand dredging and extraction operations at ‘Tinda Park’ …..with sand extraction extraction proposed to an average depth of 20 metres over a 22 hectare area.”
(e) Refer EDO advice dated 29 November 2004 at p.3
Copy of these documents is at annexure36
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18. A declaration that the s.96 modification application by the First Respondent dated 6th July 2006 for DP 628806 (“s.96 Application”) was an invalid application under clause 115 (h) of the Environmental Planning & Assessment Regulation 2000, because there was no actual consent of the Crown as part owner of the land below 15.24 metres according to the title deed for DP 628806.
Particulars
Refer evidence for declaratory order 17 above.
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19. A declaration that the s.96 Application was false and misleading for presenting and relying on a plan SK2 instead of the well defined approved “Plan No PS91/E130, dated April 1996” as per the development consent condition A. 1 of 1996:
- thereby suggesting Tinda Creek was 500 metres from the sandmine excavation on DP 628806 when it is adjacent to and formerly through the sandmine site;
- falsely suggesting the approved “EXTRACTION AREA” is significantly larger than it is.
Particulars
(a) Umwelt letter of 11 July 2006 with s.96 modification application: Jamieson/Umwelt for the sandminer Birdon write: "The first reason for seeking this modification application is that since consent was granted there has been confusion as to which plan Consent Condition 1 is referring to as PS91/E130 is the Job Number used .... as a result there are many figures and plans showing a range of things that have PS91/E130 on them" [bold added] referred to in the annexure 32 above
(b) Jamieson attaches a convenient diagram called "JOB No. PS1/E130 DRAWING No. SK2" which just happens to show a bigger extraction area than the one approved in the detailed actual DA consent with plan from back in 1996 which is "Plan No PS1/E130, dated April 1996". The date is all important as the identifer and Jamieson airbrushes that reality. The SK2 diagram also truncates the watercourse of Tinda Creek to a mere 100 metres or so from the Singleton/Putty Rd, when in fact it runs all the way to the now sandmine which interrupts the natural watercourse.
(c) The diagram later proferred by Umwelt for Birdon in their correspondence of 27 July 2007 to Greg Hall of HCC “Proposed Final Landform” to progress their s.96 modification application, has never been advertised to the public. Refer annexure 32 above
(d) Also there is no record of rehabilitation to give efficacy to the new final landform with restored area in the south west corner such that the lake window will remain at 14-15 ha in the approved plan of 1996 compared with 22 ha if the new stages 1a and 2a go ahead under the s.96 application. There is no evidence in the HCC officer’s report of 29 July 2008 to verify this rehabilitation claim.
(e) There has never been a proper or thorough environmental study of the new stages 1a and 2a because the 1996 EIS was limited to the approved area in the consent.
(f) 6 diagrams from the EIS as amended by the April 1996 plans approved in the consent conditions A1 and 2 provide further evidence of the situation, at annexure 37
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20. A declaration that the section 96 modification of 11 July 2006 on behalf of the First Respondent constitutes a designated development under s.35, s.36 of Schedule 3 of the Environmental Planning and Assessment Regulation 2000, and therefore requires a new Environmental Impact Statement.
Particulars
Refer EDO letter of advice dated 17 Sept 2007 at annexure 38
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21. A declaration that the First Respondent is in breach of consent condition A.1 to comply with “documentation of Environmental Impact Statement dated 1 November 1995 as amended” in respect of “a series of bores will be installed to monitor groundwater behaviour” at page 23: For instance as recommended by the First Respondent’s consultant Eco-wise Environmental dated 27/10/2005 attaching at Appendix 2 report of Golder Associates dated October 2005 at section 4.0 Recommendations, 2nd dot point “Installation of six shallow and deep monitoring well pairs on Site to assess groundwater flow” pursuant to orders by consent in LEC proceedings 40230 of 2005.
Particulars
(a) Memo dated 18 January 1996 by John Williams of DLWC recommending monitoring bores
(b) Page 23 of the EIS of 1995
(c) Page 7 of the Golder report attached to the Ecowise report for Birdon October 2005 pursuant to the orders by consent of 9 Sept 05 in settlement of proceedings 40230 and 40430 Diamond v Birdon & HCC.
(d) Illegal bores in pictures from HCC council file
For documents refer annexure 39
22. A declaration that the First Respondent is using more water than is allowed by their water licenses.
Particulars
(a) Refer EDO advice letter of 17 Sept 2007 by principal solicitor Kirsty Ruddock: “Increase in water usage (see report of C. Jewell dated June 2007). In particular, the existing water licences only allow for use of 55 ML of water (see 40 ML licences - ……). The report of C. Jewell dated June 2007 indicates the existing quarry is using at least 98ML”
(b) Wayne Conners memo for DLWC dated 16 March 2005 states “Net water extraction is therefore 155.5 megalitres” at 30 hours per week. Refer p128 of the First Diamond Affidavit, annexure 14 to that affidavit;
(c) Ray Bygraves for Birdon at the meeting Sept 2007 at HCC briefing meeting with Chris Jewell said they pumped for 25 hours week.
(d) From 1996 to 2004 Birdon operated with no water licence, only obtained these after the 2005 consent orders of the LEC in 40230 and 40430 Diamond v Birdon & HCC. The application to the DIPNR for the water license attached a misleading diagram area as to area of approved extraction. Copy is available.
23. A declaration that the First Respondent is in breach of their water licenses 10BL162737 and 10BL162738 conditions 9 and/or 10 requiring submission of hours and pumping figures.
Particulars
(a) Affidavit of Luke Phelps for DWE dated 3 Sept 2008 in these proceedings at paragraph 16 cross referring to subpoena to DWE by Diamond paragraph 12 dated 21 August 2008 “a copy of pumping figures including hours required by Birdon ….as set out in the Licenses 10BL162 737 and 10BL162738…” Answer by DWE “”I am informed and I believe that DWE does not possess any such records”
(b) Copies of licences referred to in (a)
(c) Diagram from DIPNR file of false alteration to diagram 7.2 “extraction area” viewed by Diamond pursuant to subpoena in 2005 proceedings.
Documents referred to in annexure 40.
24. A declaration that the First Respondent is in breach of consent condition A.33 for DA 134/95 for not submitting annual compliance reports regarding consent conditions and all permits and licenses.
Particulars
(a) Refer HCC chief planner’s report of page 69 “Compliance with this condition has been low” with details there.
25. A declaration that trees cleared on the Property between 2005 and 2008 in the “Proposed Stage 2a” area in the s.96 modification application of 2006 was unlawful due to no permit from the Second Respondent under their Tree Preservation Order, and/or Part 3A Permit under Rivers & Foreshore Act 1948 (NSW) which was in force during this time, and under consent condition A.1 at page 23 which says there will be no further clearing for the development.
Particulars
(a) Refer last page of Letter of consent of 23 December 1996 stating TPO applies to this site. Diamond has read the HCC file up to this month 2008 for the last 10 years and there is nothing there about TPO
(b) Diamond subpoened the DIPNR file in 2005 proceedings and there was no reference to RFIA permits for Tinda Creek.
(c) Refer to references to particulars for declaratory order 1 regarding application of RFIA Act 1948 to the Tinda Creek site.
* The Applicant Diamond also relies on the bundle of evidence in the First Diamond Affidavit subject to relevance.
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Breach of Commonwealth law regarding protection of World Heritage Area outside the jurisdiction of the LEC
63. I refer to the Federal Court precedent case of the Flying Fox Case:
- Judgment granting a final injunction by Branson J: Booth v Bosworth [2001] FCA 1453;
- Judgment granting costs by Branson J: Booth v Bosworth [2001] FCA 1718.
In that case it was impacts from adjacent landholder using an electric grid to kill endangered flying foxes - in their thousands - in breach of the World Heritage Act 1983. At Tinda Creek here it is killing off a large segment of World Heritage catchment by diverting it's water into a highly evaporative lake from sandmining.
I understand that now the 1983 legislation is folded into the Environment Protection and Biodiversity Conservation Act 1999 that protects Cth threatened species and World Heritage areas. Or it should under Federal Minister Peter Garrett's responsibility.
I am thankful of Kirsty Ruddock principal solicitor of the EDO for the last legal clarification of the new EPBC legal framework.
SWORN at | Sydney |
Signature of deponent | Neville Diamond |
Signature of witness | Tom McLoughlin |
Name of witness | Neville Diamond |
Address of witness | ..... |
Capacity of witness | solicitor in NSW |
