Mood:
sharpTopic: legal
We have been in correspondence with the NSW Dept of Environment, Climate Change and Water since a court decision in mid August 2009.
The Land & Environment Court registry advises that their CD tape of the hearing is still unavailable despite an order over a month ago. Something about a backlog.
Here is the troubling material which is a little complex but important because this guy will be giving evidence on mining cases in NSW in the future. All this will be shunted off to the NSW Attorney General later today, as suggested should happen by the senior solicitor for Hawkesbury City Council, one of the parties in the litigation. Our role was as pro bono legal agent for two objectors Diamond and Sneddon, backed morally by several peak and local environment groups. If we had the bucks we could have cross examined the 'single parties expert'.
That is, in this jurisdiction the single expert is paramount with no other expert being allowed, though expert evidence can be presented for their comment.
Sent: Tuesday, September 08, 2009 5:30 PM
Subject: breach of cl283? - re alleged 'confusion' on approved plan, masking no deep burial of dredge fines breach. Umwelt Feb 08
Dear .....,
CC DECC .......
You will have our latest community media link on 'the wrong EIS' that was submitted to the LEC in Birdon v HCC 11133 of 2008. What a sham.
.....
Here is a brief of evidence I promised last week on the deceptive s.96 application document given to council as consent authority in 2006. There is a simple aspect to this and a more complex aspect.
1: Simple issue: Wrong allegation over which is the approved plan
See the highlight in yellow [of the extract of letter below]:
This claimed confusion above as part of their s.96 application (directly cross referenced attaching application form) is given the circumstances a calculated fraud: The approved plans were always known but inconvenient. Here are some images of the approved plans they were in breach of for years. They are 3 large format April 1996 plans by Port Stephens Design Services with a reference number:
The hammer blow in terms of evidence may be this: A memo by senior planner Greg Hall noting the approved plans are exactly what they are, implying that owner Tom Bruce/sandminer Birdon just doesn't like them:
No confusion. Just hard to comply with after cascading effect of non compliances especially re deep burial of dredge fines (below). This brings us to the more complex aspect of the deception regarding avoidance of requirements of the approved plan.
2. Complex deception: Cover up of miner failure to comply with deep burial of dredge fines in the approved plan to date, indeed also council failure to regulate compliance
Of particular problem for the miner has been their failure so far to comply with the approved plan (as shown above plan 3 of 3) with the burial of dredge fines 14 to 20 metres deep - possibly because too hard in engineering terms, certainly no crown land consent from 15.24 metres 1996-2009.
Umwelt's supplementary s.96 application letter of 24 July 2007 states at page 3 "The area under the existing Silt Pond [not to be confused with Stage 1 Dredge Pond] is not proposed to be extracted due to the depth of silt that exists in this area."
But they would be obliged to under a clearly identified "approved plan" April 1996, 3 of 3 as above. That's why it had to be airbrushed?
Birdon finally make the concession August 09 here in highlight below, even when legally they needed crown consent years ago:
We believe this failure to bury at depth, raised by the objectors only, has forced Birdon (and council) to the negotiating table, to strengthen any consent orders. (Also the Jewell 07 water report of high evaporation effect supported by DECC has been influential.)
So only in August 2009 does Birdon reveal publicly a March 2009 Dept of Lands letter of permission to apply to extract and bury at depth using crown land, and still no commercial licence yet (?).
Another problem for the sandminer is they have placed silt up to 10 metres deep all over the main "stage 1 dredge pond" (they now call "stage 5") which was till this year the major (high evaporation) dam on the site. We estimate about 350,000 tonnes of silt there. This means they can't bury dredge fines at 14 to 20 metre depth without moving that difficult clayey tailings overtopping the sand resource.
In their August 2009 response to issues in the case Birdon/Umwelt say they will decide later whether to mine below relatively shallow silt fines in a new "stage 5" overtopped with clayey silt - see bottom of page :
(We have a letter in the files we put into the court exhibits, signed by the managing director Bruce dated around 2002 that stage 1 of the quarry is "complete", so more evidence there never was any real intent to comply with the deep burial condition. )
Birdon clearly don't want to comply with the deep burial requirement since 1996 -2009, or now in 2009 or in the future. And especially in stage 1 dredge pond because there is so much of it.
What status is the 1996 obligation to bury at depth now, after C'er Brown 18th August 09 has waved through a new surface area plan and this latest uncertain 2009 EMP???
A recent letter from chief planner Owens 4 Sept 09 to objector Diamond suggests this non compliance re dredge fines burial is "temporary". As if, another 13 years? What indeed is safe for the environment, wildlife, people including bushfire workers using the lake for water resource? What islikely to be a stable landform, with dredge fines at the surface batters of a big lake?
No doubt the regime in the original approval was designed that way to keep dangerous silt away from the surface to avoid another $10K water pollution fine as happened in 1989 against former business partner Poyneed Pty Ltd/Jan Stout and sons.
This situation with deep burial of dredge fines is all very uncertain and unsatisfactory regarding lack of progressive rehabilitation requiring deep burial of dredge fines.
Nor have we even quoted yet the EIS which requires 30% only of site disturbance at any one time at section 5.1.2. Not affected by the new plan or new EMP either.
.........................
On another aspect we have the full water report now by Umwelt 08 for the miner as of last Friday attached. By way of contrast we have the Council report by Jewell 07 showing ostensible breach of water license volumes to 2007 due to evaporation effects. We don't believe Jewell 07 is wrong or that Umwelt/Jamieson have contradicted him on the real evidence. If DECC could corroborate this understanding by comparing the two reports maybe the miner could still be held to account for bleeding the creek dry for about 2 km.
I believe [deleted] at DECC has background on the Jewell 07 report and may be able to assist with a comparison of Umwelt for efficacy.
We will email the Umwelt report to DECC separately as it's a large electronic file given the diagrams.
Yours truly, Tom McLoughlin legal agent for objectors.
Posted by editor
at 12:37 PM NZT
Updated: Friday, 9 October 2009 12:44 PM NZT
