Mood:  lazy

 ............................

We hear water minister in Victoria Tim Holding is "impressive" "lucky" regretful, ex commando, fitness fanatic, and to balance up all this ALP spin for a protege, actually a "super dill". Here is some coverage:

Tim Holding speaks about his dramatic rescue from Mt Feathertop ...2 Sep 2009 ... UPDATE 3.45pm: TIM Holding has revealed he feared the worst as he slid ... Tim Holding at his press conference.

Have a look at exactly why his 100 m slide on ice reflects on Holding's judgment and quite possibly misplaced, probably arrogant self confidence in snow and ice. Reckless? You bet. 

Did any journalist ask him whether he had an ice axe? Or knew how to use it? We wonder.

Traditional training for ice axe self belay and arrest

Posted by editor at 10:45 AM NZT

Updated: Friday, 4 September 2009 10:55 AM NZT

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Mood:  sharp

The front pager report of the court decision here

 ALP donor projects scuttled

and

'Land bribe' exposes Labor's coziness with property developers

and editorial here 

Della Bosca's quick exit … focuses minds on the real shemozzle

and "withering" decision of the court by Lloyd J here at their homepage:

Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140 (31 August 2009)

relates to our backgrounder back in December 2008 re turn of events back in 1997 where the SAM editor was an uncomfortable witness. This was about the time the creeping corruption of environmental ngo movement by the Carr state government started taking hold one year after the death of leader Milo Dunphy - at least in our humble opinion:

Systemic racism in NSW behind the 1997 origins of 'bio banking' aka 'tradeoff' land clearing?
Mood:  sharp
Topic: indigenous

When we first read Henry Reynolds - Law of the Land published 1987 - we were shocked by the reference to 'sado masochistic Sunday afternoon hunting parties', and of 'childrens skulls smashed in'. This was Tasmania of 19th and 18th century colonial times that Julia Gillard euphemistically calls "settlement" surely not realising the unintended fiction - at the hands of brutalised convicts doing the British Govt's dirty work. As eloquently argued by many since it would take a triumph of willful blindess for we the Australian ancestral benefactors of the active theft or inheritors via disease and violence to quiet the whispering in our hearts, just as the UK Govt with the remoteness of distance might effectively ignore the truth.

We wove that 1987 book into our honours law thesis in 1989 called A Legal Foundation for Aboriginal Land Rights around the nascent concept of Native Title which was in fact recognised by the High Court of Australia 3 years later in Dec 1992. The famous Mabo Case and surely a hero of the age. But in 1989 we never quite nailed down what Australia was legally because the British empire had officially 'conquered' some of their global dominion in which case local people's land law continued in some form say under a treaty like Waitangi in NZ, and 'settled' other 'empty' land. But Australia seemed to be "sui generis" which is latin meaning "one of a kind" mentioned in some of the writings in dusty old common law cases from India and South Africa. 

Now we conclude Australia was neither empty/settled or peopled/conquered in the minds of the UK seat of government. We personally have no doubt it was a covert creeping invasion and consquest using convicts as the catspaw of the Empire. It was invaded by convict criminals sent in with sickness and violence to clear out whatever they came across. All very convenient and racist to not even formalise an international legal categorisation for the hapless Aborigines who lived so very close to nature.

In 1993-4 we played an active role at least here in NSW in reforming The Wilderness Society's national approach to such issues into a quite strong and ethical Land & Rights Policy which prefaced alliances over such campaigns in Starcke and Jabiluka of the 1990ies with Traditional Aboriginal owners of land. (We were not the instigator of such a reform, rather this was a couple Larry and Marg from memory, but we loved the change.) This was in a time when Noel Pearson was pretty friendly to the non govt group too. 

The essence of the TWS reformed policy was to recognise large intact natural areas known as wilderness under the NSW 1987 legislation as in fact Indigenous land, and secondly while never walking away from the goal to conserve such lands, to never seek to pre emtively extinguish that traditional, custodial Indigenous history in any deal making with other stakeholders in land such as govt, agri or other resource extraction industries.

One implication of that huge symbolic shift was that it could theoretically involve the TWS both supporting a native title holder's ownership and at the same time campaigning against them if they sought to act as a vandalistic black developer of crucial conservation values. This was a risk deemed essential in a new moral path for the green movement and for the nation post Mabo. It felt right and it was right.

5 years later 1997 we realised the game of covert extinguishment was still under way in NSW but this time by the NSW Govt Depts,  farmers and also either using or willingly with the aid of certain green groups.

Indeed the name of the game in conservative politics under the federal Howard govt was extinguishment of the Mabo legal test of 'ongoing physical connection with the land' and in the most redneck parts of the nation it looked like the bulldozer was the preferred method as here in Qld:

And not just the bulldozer to ensure extinguishment of native title with ongoing agri industry pressure on govt for corporate welfare via freeholding of govt leasehold land to the non indigenous squattocracy of the Western Division here:

And the farmers had their reasons to seek out their "bucket loads of extinguishment" as the Howard Govt proudly expressed in Federal Parliament, if they didn't care about the morals, because they knew they were being stalked legally after Mabo and after the Wik case earlier like this report dated April 2000:

This particular legal saga was trashed by the High Court of Australia in August 2002 as explained here [pdf file]

Native Title and the Western Division of NSW

eventually raising the question whether all that pre emptive land clearing was really needed in either NSW (see one report of the sorry landclearing detail here) or Qld (above) up to that point.

In 1997 the green groups were not to know how the legals would work out not least after the Federal Court decision in favour of the native title claim relevant to a huge areas of western NSW.

It was in this context that the 'leaders' of the NSW green movement were summonsed to this:

We particularly remember Jeff Angel blessing these endeavours by Jamie Piddock and being "very impressed" for franchising the idea of "clearing tradeoffs" by farmers. Jeff's blessing some 10 years ago is in stark contrast to some quotes in the press last Saturday Dec 15th 07 (below). Not a mention of native title extinguishment. Not a mention except by this writer as confirmed by the contemporaneous notes of the time. Here is Piddock's briefing note of this 'environmental' initiative to keep the farmers happy, and sideline the Blacks altogether (and note our very bad handwriting):

 

Our alarm at this attempt to promote trade offs of one area of native bush for another, after 200 years of land clearing and a general scientific understanding that no more land clearing was desirable in Australia at all, let alone to extinguish critical historical native title rights, and with a green stamp on them was pretty much ignored. This was a shameful day for the NSW green movment with Jeff Angel ascendant. Hence the careful notation of the documentation and signature and dating by hand above. Angel in particular should account for this (while Jamie Piddock is God knows where). Not least because he was busy on ABC radio last Saturday morning Dec 15th and in the Sydney Morning Herald with pretty much the direct opposite view against exactly this kind of 'bio banking tradeoff land clearing in favour of regional conservation outcomes' which the govt jargon for green lighting, greenwashing developer bush clearance.

 

In principle 1997 good, 2007 bad? Western NSW 'Black Land' good. Sydney urban bushland bad? Go figure. This may be what Jeff Angel said on 702 on air to be 'good in principle, its the implementation that matterrs'.

Angel is clearly right in 2007. But he was woefully wrong in 1997 so what's changed? Bob Carr is no longer premier is one significant factor. The ascendancy of the far more independent and fiesty Green Party is another.

Are you reading this Warren Mundine, prominent in the NSW ALP?

Some of us have a long memory about such things and we can prove it. Here is some of our confidential briefing notes of that shameful May 12 1997 cave in to redneck land clearing deal to further oust the Blacks from the Western Division:

 

 

 

Posted by editor at 10:00 AM NZT

Updated: Friday, 4 September 2009 10:16 AM NZT

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Mood:  quizzical

 * Refer Crabb story referred below regarding Higgy the Human

Sponge. 

Author’s general introductory note   

This is not a well packaged story. It’s a contemporaneous traverse of the Sunday television free to air political talkies indicating the agenda of Establishment interests: Better to know ones rivals and allies  in Big Politics and Big Media. Perhaps the greatest utility is the headline synthesis above of the 3 or 4 shows followed in this session.

For actual transcripts and/or video feeds go to the programme web sites quoted including Riley Diary on 7. And note transcripts don’t really give you the image content value.

Other sources of pollie talkies on Sunday include SkyNews paytv Sunday Agenda, Radio National Monica Attard Sunday Profile show. And of course Sunday night shows SBS Dateline, Sixty Minutes and now Sunday Tonight on 7.  

Media backgrounders.

1. News Corp blinks in campaign to spook ALP and Rees out of his premier’s job in NSW with front cover by Simon Benson leading corporate back down in press late this week. Shows how web fracturing of big media influence has taken the sting out of News Corp bully boys.
2. Will Federal minister Anthony Albanese ever do the right thing on asbestos in the heart of his own electorate e.g. Addison Rd Community Centre? See picture in due course. We reported on this over a year ago:
   Monday, 10 March 2008
   Albanese's asbestos shame in the heart of Grayndler
   Mood:  incredulous
   Topic: health 

   

3. Nelson bail out claiming equanimity while ruthlessly sledging Turnbull in Hartcher column in SMH this Saturday. Crabb same paper nails him with hilarious journalistic metaphor Higgy The Human Sponge. Fact is Nelson is tarred by failed rationale of Iraq war. The chill of that goes on forever … Howard, Costello, Downer, Vaile, Nelson etc etc all gone as they must. Turnbull elected post invasion in 2004.
4. Paul Kelly News Corp broadsheet and Laurie Oakes both put the boot into Julia Gillard including pretensions to overtake PM Rudd in “authority”.
5. Greg Hunt federal shadow Env spokes joins Greens Senator in raising alarm over ongoing bad oil spill in NW Australia. Good whistleblowing work.
6. NSW State Forests fuel reduction burn runs wild according to our sources:

Sent: Saturday, August 29, 2009 3:29 PM

Subject: [chipstop] Fire on Gulaga Mountain

>A ‘fuel management’ fire that was started by Forests NSW (Hazard
> Advisory FNSW to RFS 28 August) in
> compartments west of Gulaga Mountain, has jumped containment lines and
> ‘got away’ burning out of control up the mountain and continuing to
> burn down the eastern flank threatening the two Tilba villages.
> Previously communities had called for no burns on the mountain and
> requested Forests NSW to extinguish this fire.  This fire had been burning
> for two weeks.  Forests NSW ignored community concerns and the severe
> drought and weather conditions.  Homes are threatened, sacred sites burned
> and rainforest decimated.
…….> (End)
> For more information contact SEFR on 0437471763 [Refer penultimate post for full statement].

7. Our suggestion on $20M branding Australia – “Australia honest”. Comes from student days brit girlfriend law student who ‘liked’ Australian because they were so ‘simple’. They are patronizing like that. The better view is Oz is relatively more straight, and direct not scheming or neurotic unlike the Old World countries or USA desperate capitalism. Only trouble with this

8. Foreign Correspondent stunning story by Sally Sara on acid throwing in Bangladesh – fantastic reportage and Walkley material.

 11. Land  & Environment Court appear to take a curious  attitude to vandals in the Blue Mtns World Heritage precinct. See story 2 back from this post. SAM after a year of research has exposed systematic illegality and misleading evidence to the LEC, as well as ruthless behaviour by the sandminer agents. Is this really good enough in the 21C? Stay tuned for more on this story.

10 Meet the Press:  8- 8-30 am 

Press round up, mortgage stress, Kennedy (another one) dead,

Talent is Pyne Opp business manager. Re Gillard expenditure management, excessive advertising. [Compare road funding signs up for years after project finished.] Gillard grab says standard practice.]

First out take Rudd pushed for new hospital by sick patient.

Turnbull grab re News poll still low. Panel is Hewitt, Mal Farr both News Corp.

Polling dead bat re only one that counts is election. Brendan Nelson decided to leave “not a life sentence”. Farr says Rudd doing better ‘no one likes to call their own baby ugly’ vote by the public.

Gillard in adbreak ‘smarter than a 5^th grader?’

Grab of Turnbull must engage on ETS. Talent no. 2 is Nationals Fiona Nash [very telegenic, probably a better look for leader post Truss?] RARA tub thump re “no negative impact”. Chat moves to leadership discussion. Good speaking voice. Unashamably parochial. Notes Joyce has a lot of “spirit”.

Challenged on business support for ETS engagement. RARA tub thump. Product differentiation.

[Nash is a minor revelation in tv stakes offsetting Julia Gillard profile, and more reasoned presentation ]

Meet The Press - Watch Political Video Online - Channel TEN.

Riley Diary 7, from 8.40am   

Missed most of it. Theme on Crean better branding for Australia. Disappointing to miss.  

http://www.seven.com.au/sunrise/weekend   

9 Sunday newshour Laurie Oakes interview 8.44 am 

Albanese as Infrastructure minister, NSW Govt ‘turmoil’ media stories are a beat up in NSW. Challenged on costs blowout in Education. Looking very ALP with bulging suit coat but talking a good game.  Dense policy traverse including social housing, education infra, interest rates re stimulus. Oakes turns “Narcacistic personality disorder” attack by Nelson on rival Turnbull (in Hartcher article in Fairfax) around to Rudd’s personality too?  Strong interview and strong performance from Albanese [maybe he can fix the asbestos all through Marrickville including Addison Rd Community Centre – see picture above.  

http://news.ninemsn.com.au/oakes

Insiders 2: 9- 10am

Lead in on Gillard on excessive workload including $16B infra project in primary schools. [Makes three heavyweights Kelly, Oakes, now Cassidy]

Kennedy funeral wrap. Panel is Schubert, Atkins, Henderson

Press roundup – Gerard Henderson – apology on welfare kids mistreatment. Not drought rather climate change permanent re aerosols. Discussion re 1950-1970 were unseasonably wet and now reverting?

UN criticism of suspension of RDA, bipartisan approach to pragmatism. Tony Abbott responds in person as guest. Says grog is stopped and all night parties stopped school attendance is 70%. Basic law and order really as per Aurukun example, claiming Noel Pearson and Howard Govt agenda.

On Nelson verbal acid in Hartcher article says got to have steel and effectively dismisses the attack by Nelson, normal to have an ego and robust discussions. Refers to NSW ALP more like an opposition – which was probably SAM’s line first of all re Rees Govt.

[Echoed by Marr story Fairfax this last weekend profile of Barry OFarrell, effectively anointing him as Premier in waiting.]

Chat about Abbott interview concurring on Nelson excessive emoting. Everyperson segment on Nelson.

Kelly and panel on Gillard ‘halo slipping’ and contrarian mild support from Henderson rolling back some centralized IR platform. Cassidy refers to “market correction”.

Excellent Talking pictures with Bruce Petty re Nelson great escape and Womans Day on Rudd Rein GG ALP rose tinted show.

NSW Govt Rees presser shown. Keneally mentioned [very nervy planning interview on 702 with Cameron is way under done as premier material, and Rees delivered the $2B desal plant with public meetings all over the place. That’s the tribal difference.]

http://www.abc.net.au/insiders

Refer http://www.abc.net.au/insidebusiness/

………………………..

Posted by editor at 12:28 PM NZT

Updated: Sunday, 30 August 2009 12:33 PM NZT

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Mood:  loud

>A ‘fuel management’ fire that was started by Forests NSW (Hazard
> Advisory FNSW to RFS 28 August) in
> compartments west of Gulaga Mountain, has jumped containment lines and
> ‘got away’ burning out of control up the mountain and continuing to
> burn down the eastern flank threatening the two Tilba villages.
> Previously communities had called for no burns on the mountain and
> requested Forests NSW to extinguish this fire.  This fire had been burning
> for two weeks.  Forests NSW ignored community concerns and the severe
> drought and weather conditions.  Homes are threatened, sacred sites burned
> and rainforest decimated.
> Forests NSW “Southern Region Burning Proposals 2007” contains burn plan
> No. 07BAN3053 (the one that ‘got away’) further stating that the
> area’s last burn was in 1996, yet on the adjoining Burning Plan No.
> 07BAN3048 parts of the area were mapped as last burnt in 2000, 2001 and
> 2005.  FNSW intended to burn 1,103 ha.
> The 850 hectare fire is burning in State forest and National Park on the
> south-western side of Mount Gulaga, three kilometres west of Tilba.
> The main fire is burning on the western and south western side of the
> mountain, being pushed by westerly winds.
> A spokesman Greg Potts says a long 'finger' of fire is burning slowly
> downhill in an easterly direction towards the Dromedary walking trail that
> is near private property.
> "That fire is burning down towards the private property on the eastern
> side," he said.
> "It still is totally inaccessible to fire crews so as it starts to get
> closer to the private property then we'll have patrolling units there
> ready."
> Mr Potts says fire is also burning slowly downhill in a south easterly
> direction towards Dignams Creek. There are two spot fires causing concern,
> one on the northern end of Gulaga Mountain and the other on the south
> eastern side above Tilba.  The fire is currently burning on all sides of
> the mountain.
> Residents were being urged to decide whether to stay and defend or leave
> early and to have their evacuation plan in place. 
> At a town meeting held at the Central Tilba community building last night
> Julian Armstrong FNSW Burning Operations Unit Manager stated that Forests
> NSW started the prescribed burn in late July. 
> “The fire was kept going because the area was too inaccessible, once it
> got to 450 ha it was too big to water bomb.”
> “FNSW initially lit couple of hundred hectares,” he said.
> Fergus Thompson chaired the meeting and was noted to have stifled
> information and debate on how the fires began.
> “Neighbours  were not notified prior to the burns commencement,” said
> concerned resident Judy Beggs.  “My life and livelihood are in danger
> because of Forests NSW incompetence.”
> Smoke has affected residents at Dignams Creek, Akolele, Wallaga Lake,
> Bermagui and Bega 70kms away.
> “FNSW administrative breaches have resulted in damaging consequences,”
> said South East Forest Rescue spokesperson Tony Whan.  “But as is plainly
> shown in the Draft Report documentation for the current Regional Forest
> Agreement review process, FNSW threw out the concept of ecologically
> sustainable forest management many years ago.”
> Mr Potts said the cause of the fire and how it broke containment lines was
> under investigation.
> Fire activity yesterday and over night saw extensive spotting over the
> summit, resulting in several small spot fires, which are now burning in
> inaccessible terrain in the Gulaga National Park and Bodalla State Forest
> The community is stridently calling for a judicial inquiry into the
> incident and Forests NSW mismanagement, maladministration and criminal
> neglect of the events.
> (End)
> For more information contact SEFR on 0437471763

Posted by editor at 11:08 AM NZT

Updated: Sunday, 30 August 2009 12:13 PM NZT

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Mood:  sharp

Picture: Why isn't the creek flowing? Stakeholder inspection downstream of sand mine 14 March 2007 with hydrologist expert retained by Hawkesbury City Council sixth from left. Taken by SAM editor.

Picture: Upstream at the quarry which is located right on the headwaters of Tinda Creek. Sand dredge using cutter suction pump in closed loop operation. Picture taken 14 March 2007 by SAM editor.

Last week 18th August, Commissioner Brown of the NSW Land & Environment Court took 3 hours to consider his position and deliver a judgement at 3 pm. This followed a day and half of hearing including a half day inspection of the quarry originally approved retrospectively in 1996, having operated mostly illegally since 1984.

This writer was pro bono legal agent for two brave objectors William Sneddon and Neville Diamond two environmentalists with a long experience in the Hawkesbury region. Other neighbours are too nervous to go public with their objections against sandminer Birdon Contracting Pty Ltd owned by managing director Tom Bruce. Mine manager is Ray Bygraves. Their consultant is Peter Jamieson, an engineer and director of Umwelt Consulting. He is pictured above on crutches.

Lawyers for Birdon are Russel Byrnes based at Surrey Hills in Sydney with his own interests in sandmining and related by marriage to the Bruce family, and John Webster veteran barrister of Martin Place Chambers in the Reserve Bank building. Webster charges up to $6,000 per day. More of these characters below.

So what was the misleading evidence we refer to in the headline? First we should outline the offence under clause 283 of the Environmental Planning and Assessment Regulation 2000 as follows:

ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2000 - REG 283

False or misleading statements - 283 False or misleading statements

"A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with the Director-General or a consent authority or certifying authority for the purposes of the Act or this Regulation. "

The Act referred to is the Environmental Planning & Assessment Act 1979. This story is about how such deceptive evidence has allowed a ruthless sandmining operation to destroy up to 2 km of Tinda Creek on private land inholding to the Blue Mountains World Heritage area, along Putty/Singleton Rd at the locality of Mellong.

Picture: Out of date image of the Birdon sandmine at Mellong/Tinda Creek area taken from current google earth. Estimated to be around 2001 or 2002 . To the left of here is Wollemi National Park and to the right is Yengo NP, both within the Blue Mtns World Heritage Area.

The current sandmine in 2007-9 has been way beyond it's 1996 approval. Hawkesbury Council finally responded to complaints about water loss due to evaporation in this dry hot location in the Blue Mountains by retaining expert hydrologist Chris Jewell in March 2007 who reported in July that year. Jewell advised that although the Creek was probably unaffected currently with 37% water loss immediately below the quarry, if it went ahead with final water body of 22 ha it would lose 53% of water flow.

Picture: Image from Council file obtained by flyover May 2005, with the sandmine growing outside it's approved boundary.

Similarly NSW Dept of Environment and Climate Change were concerned and wrote in 2007 to Council in response to a development application to expand the mine and change its boundaries to 125,000 tonnes per year to 2021. They wrote:

" As part of a remediation action plan to minimise evapotranspiration form open water DECC recommends that open water areas be reduced as much as possible".

This clause has even now been added into draft consent conditions in 2009 - so there has been some symbolic progress here. But given 13 years of non compliance on other critical consent conditions like groundwater monitoring bores and data loggers there is a serious credibility gap with this developer.

Hydrologist Jewell wrote that (contrary to sandmine claims) they are using 98 ML of water per year while licensed for only 55 ML. This is said to be mainly due to evaporation from those big tailing dams. This gels with a NSW Dept of Land & Water Conservation officer memo in 2003 suggesting 130 ML of water use per year. These are serious breaches of the water license to Birdon at the expense of Tinda Ck.

Now in evidence to Land & Environment Court last Tuesday 18th August 2009 engineer consultant for the sandminer, Peter Jamieson, has handed up a diagram as evidence showing just how big the sandmine has grown, 318 metres at the 140 m approved northern boundary, and 503 metres at the 400 metre southern boundary.

However he did this in a very deceptive way - in our humble opinion. SAM has obtained a copy of the diagram which is discussed in this email to green group and government stakeholder interests:

From: Ecology Action

To: Jeff Smith director Environmental Defenders Office, Kirsty Ruddock principal solicitor EDO

Cc: Scott Hickie researcher to Greens MP Ian Cohen; Jackie Verzi Hawkesbury Council Watch; Tara Cameron President Blue Mtns Conservation Society; Andrew Cox National Parks Association; Peter Cooper The Wilderness Society; Gordon Plath manager litigation DECC; Carmel Tebbutt MP env minister, deputy premier; pro bono barrister Nick Eastman; Ben Cubby SMH ; Stateline NSW ABC ; Simon Benson News Ltd Daily Telegraph

Sent: Wednesday, August 26, 2009 4:52 PM

Subject: Tinda Ck fallout: 'expert' Peter Jamieson, director of Umwelt exposed re deceptive evidence/offence, in 11133 of 2008?

Dear EDO

Re Decision of C'er Brown in Birdon v Hawkesbury CC 11133 of 2008 (Tinda Creek, inholding to Blue Mtns World Heritage Area).

We have the deceptive document now via council's lawyer, being a plan diagram handed up to the court and listed as exhibit "F". It's copied below with compare and contrast real approved plans.

I wrote last week suggesting I could smell some blood regarding the non compliances of this sandmine inholding to the Blue Mts WHA, and maybe we have some here, in three parts A, B, and C. And a fourth D still evolving.

The objectors would be very interested in EDO advice for the objectors on how to progress a formal complaint about breach of clause 283 re misleading evidence by expert Jamieson at Part A here:

Part A: Jamieson/Umwelt misleading and deceptive evidence under clause 283?

The General Manager of Hawkesbury City Council (GM) released the critical diagram provided in court, and also the water modelling (we will ask DECC to examine this latter evidence by comparing it with hydrologist Jewell report 2007 and DLWC analysis Conners 2003). We believe the GM for HCC doesn't want to be compromised by the deceptive evidence to Commissioner Brown and may have instructed council's solicitor Stephen Griffiths to release the evidence pronto.

Griffiths as council lawyer spoke to our objector Diamond on Monday and said words to the effect of "Your issue is with the Attorney General and Umwelt" which we interpret to mean, say a complaint about contempt of court by Jamieson.

Apparently Diamond said to him to the effect of

"... and what about clause 283 [of the EP&A Regulation 2000]. That's a criminal offence."

Solicitor Griffiths apparently paused, but didn't contradict him either.

So what does the Jamieson/Umwelt diagram show? Well it's quite clear in context the deception being promoted:

The diagram shows an ostensible "Area Outside Extraction Area on Fig 7.4 of EIS  = 0.43 ha". That is a trivial exceedance.

This was an attempted rebuttal to our objector submission under s.79C of the Act the day before at the site inspection - namely the mine is 40% out of area. This non compliance (as well as others) operates on cl 36, Part 2 Schedule 3 of the Regulation re non compliance a factor in a DA falling into designated development and needing a new EIS. That is, a refusal decision.

Jamieson was cunning in his verbal language in the witness box (but not cunning enough) responding to C'er Brown 'what does it show?': Jamieson said words to the effect of "this shows what is there now". In particular bright blue hatching showing a trivial "0.43 ha" exceedance.

So here is the hammer blow: The actual DA approved plans from 1996 have nothing to do with Fig 7.4 of the EIS offered up by Jamieson to the C'er complete with bright blue hatching showing "Area outside". When you compare the real 1996 approved plan held by all the parties, the miner is close to 40% out of area. See our mock up copy below with their same style of blue hatching soon to show what the real diagram should have shown: 40% out of approved area.

Umwelt has surely misled C'er Brown who decided specifically on the clause 36 matter words to the effect that 'not sufficient non compliance to justify refusal'. Maybe he would have decided the same even with 40% exceedance, or maybe not. But Umwelt/Jamieson weren't willing to take that risk with a truthful diagram rebutting our objector submission. Nor did HCC pursue this huge exceedance and non compliance.

Here in order are:

1. the colour version of the court exhibit "F" by Jamieson/Umwelt based on an expedient misleading EIS diagram, one of many and not the approved plan:

 

Notice Jamieson's blue hatching is very small out of area - if you use the wrong plan. Also a minor issue is Jamieson starts his diagram under the western side boundary power lines (in red) when the real approved area is 10m east of there.

2. Contrast the approved plan in similar orientation due north top of the page.

Compare the approved plan below with the diagram to court above at point 1, and notice the big discrepancy in distances: On the northern side above it's 318 metres of works says Jamieson, but only 140 metres or similar (depending where you take the peg from) below in the approved plan before you get a 30 degree dog leg.

On the southern side it's 503 metres long above for Jamieson, and 410 metres or similar in the approved plan.

 

Here immediately below is a wider view of 1996 DA approved plan no. 3 of 3 from which our measurements come from. These official plans are enforced by direct cross reference in consent condition 1 of the original 1996 approval. The diagram in the dark square box we added shows where the approved plan above comes from, rotated 90 degrees left to show regular north. There is no controversy these are the approved plans.

 

 

 

3. The indicative real exceedance out of area, without being a surveyor, is something like this:

The real indicative proportions of blue hatching is approaching 40% out of area as we told the court as laypeople. Further objector Diamond advises a diagram went into a report to council back in 2004 which shows the true exceedance similar to our version above.

Given all this above it looks like C'er Brown's decision has been made on some very unreliable evidence from Peter Jamieson of Umwelt trying to pass off another figure (one of many in the EIS) with no relation to the actual approved plan necessary to indicate real exceedances.

B. Alleged assault by John Webster barrister for sandminer Birdon of objector Diamond at site inspection

Objector Diamond has made a report to Hornsby Police re this. I am an indirect witness. Diamond is a survivor of major paralysis and still disabled so for him to be shoved around is despicable. A direct witness Bill Sneddon has provided a contemporaneous file note of the alleged assault (pushing) with Webster saying "sorry". Mmm. Not very Bar Association type behaviour. Particularly a $6K a day barrister according to a bill of costs we have heard about.

The context: Webster lost a critical notice of motion to our pro bono barrister Eastman the week before, and then again at case management later the same day with myself as legal agent.  A week later at the inspection we served a 9 page submissions document and 3 page chronology of the non complying sand mine. Enough to give anyone some heartburn first day of the hearing/site inspection.

Webster's site inspection choreography then went off the rails when I presented a list of locations to attend based on the evidence in their own expert's reports and previous expert Jewell site inspection in 2007. This sabotaged the developer railroad of the inspection. Further we had a notice of motion to be heard first thing next day to be made a party to the proceedings allowing us to cross examine their expert in trouble on various matters if one took the trouble to wade through it as we had (as implied from part A above too).

All this pressure seems to have resulted in Webster losing his composure. We have Sneddon's excellent witness file note. A trained food scientist and picky by nature. He will stand up to scrutiny in any forum.

 

C. Bygraves admission of disposal of $10K bulldozer at the site inspection.

Windsor police now have this under consideration.

 

D. Chief Planner Owens tenure getting shaky?

We are hearing that chief planner Owens at Council on $300K plus p.a wage is casting his eye around to move on from Hawkesbury CC. He instructed council's lawyer on their legal strategy to not pursue issues of non compliance.

.....................

We look forward to any feedback at your earliest convenience.

Tom McLoughlin legal agent for objectors Sneddon and Diamond in 11133 of 2008.

............................[end]

"I am a food technologist with over 10 years full time experience and trained scientist. I am also a public interest environmentalist and a foundation member for 10 years of the Castlereagh Liquid Waste Depot  Community Closure Committee (CLWD CCC) set up by NSW Waste Services within the NSW Government. This body provides scrutiny on ground water contamination issues which also helps inform me about the Tinda Ck sandmine. I am also a member for 6 years of the Quarraintine Grants Committee with a $3/4 million budget also associated with the CLWD.

From: Ecology Action

To: Stephen Griffiths Pikes (solicitor for Hawkesbury City Council)

 Cc: Chris Jewell, hydrologist, Gordon Plath DECC litigation dept, Peter Jackson general manager of HCC, Kirsty Ruddock principal of EDO

Sent: Friday, August 28, 2009 10:01 AM

Subject: Birdon 11133 of 08 - Feb 2008 Umwelt water model report, request for full copy, every 2nd page missing in court exhibit?

Dear Mr Griffiths / Stephen

Birdon v HCC 11133 of 2008 decided by C'er Brown 18 August 09

As discussed with your PA Justine yesterday afternoon by telephone. Turns out the Umwelt water modelling report (allegedly overtaking the hydrologist Jewell 2007 for HCC), you released to us on instructions of HCC's GM is defective for lack of every second page.

Turns out from Justine's inspection your own copy similarly has only every second page.

The critical interesting bit about study of levels of evaporation water loss (ie as per Jewell 2007), or where it would be expected to be in the Umwelt report, seems to be missing. I stopped reading at that point and made the call to your office. (Near where he writes his report is only 'a desktop study' just like he accused Jewell of doing in the witness box.)

Could you please as the listed Party contact solicitor Byrnes for Birdon and obtain a full copy and indeed 'request' that they correct the document submitted to the court if they is necessary. Actually we would be most interested to know if C'er Brown was given a complete copy and whether the correct copy is on the court file.

...........................

Additionally Stephen, some intelligence on the site inspection:

The bypass channel at south east corner had a trickle of water at the start of it. Back with Jewell in 2007 site inspection (you weren't there, I did go) there was no water there in month of [March], but the main tailings dam was open water body. This time 17 August 2009 main tailings dam was de-watered over at a guess say 3 or 4 ha with only a few wet patches. 

The main effect of Jewell's 2007 report is that evaporation is a major factor - he said 37% [water loss] immediately below the quarry. That's why DECC have reinforced his concerns with proposed consent conditions of smaller water body in operations and final landform. Similarly the Parties have backed down to DECC: These DECC conditions have been incorporated in some fashion by HCC and Birdon.  We like to think we helped with that result.

All of this reinforces Jewell 2007 is right on evaporation and Umwelt Feb 2008 [water modelling report] is false evidence too. Like his out of area diagram in the witness box. Hence our intense interest in his water modelling report.

The out of area diagram is similarly related to water loss via evaporation because the original 1996 approval kept the open water body small, as did the EIS requirment (so I am told at 30% site disturbance at any one time). For Jamieson to present a deceptive diagram of small out of area hatching is calculated to cover up a bigger non compliance of exceeding their water licences as per Conner DLWC memo (2003 - 130 ML usage), and Jewell 2007 (98 ML) at least until that tailings dam was dewatered by 17 August 2009 site inspection.

But that's still a breach by Birdon of the POE Act and breach of their water license and not that long ago either. Something for DECC and maybe HCC to consider no doubt.

Very lastly who do you imagine put the dead fox carcass on the very spot of the Putty Rd bridge over Tinda Ck - exactly where we did our inspection with Jewell in 2007. Those country boys! Gotta love em. C'er Brown probably didn't spend very long looking from there on his own as he agreed to. But we did after the main inspection. The creek had a very small flow, again a bit better than 2007 inspection. In my view (as a rusty science grad) it all comes back to dewatering of the main evaporation source being the main tailings dam.

............................................

Thanking you in anticipation re the complete Umwelt water model report.

Please do not hesitate with any queries by tel 0410 558838 or return emial.

Yours truly

Tom McLoughlin, legal agent pro bono for objectors Sneddon and Diamond.

CC GM Jackson.

........................[end]

The objectors did a calculation while waiting for Commissioner Brown's decision in favour of the sandminer last Tuesday 18th August, in what one wag objector Sneddon now calls the Land & Extraction Court. They estimate about $206,000 in legal fees by Birdon Contracting in getting approval for their s.96 modification development application. And the costs of remediating their often illegal sandmine in an inholding to the world heritage area may cost someone many millions of dollars more.

For instance the original approved plans states the dredge fines will be buried 14 to 20 metres depth below the final open water land form. This is mainly crown land at that depth and they never bothered to get crown consent. It's common ground this hasn't been done anywhere on the site yet. Rather these claggy glue like dredge fines are overburden on commercial quantities of sand - the commercial reason they wanted to expand out horizontally in the first place.  

To move the dredge fines overburden - if they ever really do comply with this obligation to bury this quicksand at depth- defies engineering and economic practice. At least that's the view of the objectors and they have been proven right in time on most of their concerns so far. Just like the bogus 'out of area' diagram above.

One assumes it will be a matter of interest not only to DECC and DWE in place of DLWC now, how these dredge fines are processed but also the Dept of Mines people as well. A history of this controversial sand mine is here:

 

Version #3 version 16 August 2009 

Chronology Tinda Creek controversy inholding to Blue Mts world heritage area 

1981 – neighbour ND buys Lot 1 adjoining lot 2 future sandmine, “water from creek is like mineral water”

1982-1996  – water stops flowing in Tinda Ck once only 1982, first and only time says ND

1981-1986 – new ‘farm dam’ (1.5 ha/ 3acres) lot 2 becomes illegal sand mine operation (15 ha/ 30 acres) by Poyneed P/L ie Jan Stout and sons owners Lot 2

1985-6  - ND complains to Stout re ‘milkshake’ sediment pollution in creek water supply from lot 2 to lot 1 due to tailings dam walls progressively collapse [this was later marked “agricultural dam” in April 1996 approved plan no.3 of 3]

-         threat made by Jan Stout/Poyneed ‘you shut us down, we will shut you down’

-         campaign of at times ultra violent harassment/property damage commences v ND

1986 – sand mine Lot 2 originally farm dam, gets retrospective approval by HCC, Cr Books bulldozer work

1989 – Poyneed fined $10K in by State Pollution Control Commission (Local Court or LEC) for polluting Tinda Creek with illegal sandmine

1989 – 2004  Birdon Contracting P/L ie Tom Bruce as MD business/partnership with Poyneed/Stout

1986 -1991 – sandmine expands illegally, no HCC approval at any time this period before or after.

1991- 1996 – retrospective DA approval HCC for illegal sandmine over green group, neighbour objections

1995 May – Birdon EIS rejected by DUAP and HCC

1995 Nov – new Birdon EIS but plans are subject to various dept, community objections

1996 April – ultimate plans 1, 2 and 3 dated April 1996 by Port Stephens Design Services for Birdon.

1996 15 July – letter El-Chamy to HCC on details required for erosion/sediment control ‘formal hydrologic/hydraulic design’. Subject of finding by Pain J decision June 2009 on evidence never forwarded by HCC to Birdon therefore not required to comply with letter for what became consent condition 4 in Jan 1997 DA approval.

1996 Sept – ND mortgagee sale Lot 1 to Birdon, subject to option to re buy executed between solicitors

1996 – 2009 – dredge fines in plan 14m-20m depth to avoid pollution fine in 1989, buried much higher

1997 Jan -1999 arguably sandmine has lawful 2 year approval, controversy over lack of regulatory compliance

2000 – 2004 – sandmine operates illegally, gets retrospective HCC s.96 approval in 2004, deemed DA lodged in 1999 or so just not determined by HCC for 5 years.

2003 – ND discovered crown land from 15.24 metres with no crown consent to 1996 DA to bury dredge fines

2003 -2004 -  HCC GM McCully agrees in writing to objectors and ICAC to appoint independent barrister Phil Clay or Mary Walker to review Tinda Ck planning. Never done.

2004 – Poyneed selloff joint interest to Birdon

2004 – 2005 - Birdon get EPA and DIPNR/DWE water licenses for first time.

2005 March 16 – DLWC officer Connors memo that 150 ML quarry water use (125ML if 25 hrs/wk pumping: Bygraves)

2005 – existing area (top elevation, but not depth) available under 1996 DA ‘exhausts’ due to failure to follow depth diagrams in approval stranding 1.3 million tonnes under shallow dredge fines in approved area. Dredge fines should have been buried 14 to 20m deep as per approved plans.

2005 -2009 – quarry operating illegally out of area.

2005 – ND commences litigation over quarry  irregularities, settled by consent in 40430 of 2005 (“2005 Order”) Birdon must implement recommendations of Ecowise/Golder consultants

2005 October – Ecowise Golder report includes (at p7) 6 shallow/deep monitoring well pairs, data loggers, this data essential to water modelling. Never done.

2006 April – Ecowise/Golder report provided to HCC under cover of Birdon letter (not in LEC draft bundle tba)

2006  - s.96 DA lodged by Birdon with attempt by Umwelt to airbrush ‘confusing’ approved plans re dredge fines in wrong place, deceptive diagram of extent of Tinda Ck, and actual approved area.

2006 – new GM at HCC Peter Jackson ex ICAC

2007 May – Chris Jewell respected ind. hydrologist retained by HCC, ND etc attend inspection, report July,

2007 – 3 metre dry bore hole northern side with frog seen at Jewell inspection filled in.

2007 Sept – stakeholders at HCC re Jewell report on Umwelt errors, lack of monitoring bores, currently 37% water loss immediately below quarry in Tinda Ck, 53% loss if 22 ha of water bodies in future.

2008 – new broom in council election – eg Cr Books the earthmover retires.

2008 – DECC refuse to release ecological study to objector ND, not on council file

2008 18 July – solicitor Byrnes for Birdon letter to HCC threatening damages claim of $3M damages to council if this s.96 DA refused due to HCC’s own failure to enforce/manage consent conditions

2008 – Chief Planner Owens review of Tinda Ck in lieu of independent barrister promised to ICAC/objectors

2008 mid year – council demand to Birdon for $48K short payment of s.94 contributions

2008 – council votes 12 – 0 against sandmine despite friendly report by chief planner with narrow grounds of refusal on failure to comply with CC 4, Birdon appeals.

2009 – objectors demand transparency over ‘draft consent conditions’ in litigation process on current retrospective s.96  DA and right of objectors to be heard in the case before any deal is rubber stamped in letter to chief judge of LEC.

2009 June - Pain J decision in LEC that HCC failure to pass on El Chamy’s  15 July 1996 DLWC letter of  requirements for compliance with consent condition 4 (erosion/sediment) “prior to works commencing” effectively means far less compliance was valid. ND never called to give evidence of documents at late 1996 mediation with Tom Bruce/HCC.

2009, June 17 – Lloyd J decision in LEC against Birdon $48K in unpaid s.94 contributions.

2009 June – Umwelt update their EMP – final lake max 10m depth not 14, no sign where dredge fines to go. 6 ha of rehab bordering lake final landform with dredge fines under 30cm crust. No schedule rehab.

2009 August 14 – Umwelt response to issues – dredge fines to be buried 14 to 20 m as per 1996 DA plans, not done for 13 years, attaches March 2009 consent from Lands Dept to apply to council to use their land but no actual commercial licence deal yet. Water modelling at irrelevant locations upstream of quarry or below tributaries. Modelling proceeds contrary to Ecowise/Golder 2005 report requiring bore well data first, and critique of Jewell 2007. Also Umwelt ecological study still secret but in part in appendix shows Tinda Ck “drainage line” for 2 km is badly impacted (re water flow, low signal grade species) in comparison to nearby comparable creeks.

17 August 2009 – Chris Jewell independent hyrdrologist not invited by HCC to the site inspection. Has he been shown the Umwelt EMP June 09, the reply to issues Aug 09 contradicting Jewell water loss findings?

  .............................................. 

A copy of our submissions to C'er Brown at the site inspection follow, which was added to the court exhibits, with some minor verbal additions on the day shown in italic:

Objector submissions under s.79C EP&A Act 1979 re Tinda Creek sandmine s.96 modification DA [on behalf of objector Neville Diamond, also adopted by objector William Sneddon, delivered by legal agent Tom McLoughlin]

 

16 August 2009

 

Mr Commissioner

 

I have instructed my pro bono legal agent to draw up a chronology for you from 1981 to the present, with an extra copy for the parties. I have also advised my legal agent to draw up these speech notes to facilitate the hearing.

 

Mr Commissioner you already have with you the statement of my issues filed as per the direction of Justice Pain filed 1^st July 2009. Justice Biscoe has decided 10^th August 09 to allow me to be an objector despite a misconceived notice of motion by the appellant Birdon last week. Mr Commissioner you have agreed last week to hear all my issues subject to weight and relevance and I thankyou for allowing that.

 

Mr Griffiths for Council has suggested to hear our objections is proper no matter, to quote him, “however wayward” these issues are.

 

With respect my objections are not wayward. I’m not an educated man but I am a very experienced person. I was once a wealthy truck driver. I also worked 5 years as a researcher for Dixon Sands at Maroota 1996 to 2001 inclusing liaison with their legal people. I have the assistance of the EDO over the years, my legal agent and colleague Bill Sneddon who is a scientist as well as wide social network. [please also refer to Mr Sneddon's background on environmental issues in his affidavit of 30 July 2009 in these proceedings]

 

I was the property owner at Lot 1 neighbouring the sandmine in 1981 before it was even a farm dam. I lived part time there on lot 1 with my then wife Natalie and our son Matthew who grew up having to deal with all this trouble and danger. It seriously affected my marriage and I am now divorced and suffer post traumatic stress disorder to varying degrees whenever I think about this sandmine saga.

 

After my troubles began with the violence coming from the sandmine staff or their associates I lost my rent paying caretakers on lot 1, including a friend called Laurie Johnson, and I was forced by the bank to sell in 1996. It was bought by Tom Bruce the managing director of Birdon. As presented by our pro bono barrister Nick Eastman to Justice Biscoe last week in my affidavit, Birdon agreed to a legal option in my favour so that I could buy back my place on lot 1. This option was drawn up by solicitors for Birdon and I. 

 

Birdon gave me that option because they knew I had real merit to my objections and these could cause them a lot of trouble. They didn’t give me that option out of charity. It was a serious negotiation. But I never got the chance to exercise the option because a bulldozer asset of mine was stolen and sold by quarry staff.

 

I have references included in my last affidavit to Justice Biscoe from peak green groups NSW National Parks Assciation, The Wilderness Society, Blue Mountains Conservation Society, Colong Foundation for Wilderness. I am also supported in moral terms by Hawkesbury Council Watch a local community group.

 

I have another copy of these to tender for you commissioner. Their concern no doubt as well as mine are the wonderful Blue Mountains National Parks World Heritage Area including Wollemi immediately east and Yengo immediately west of the quarry. Both parks are official wilderness areas under that legislation. I can provide documents proving the conservation status of these places if needed.

 

Further, the Mayor Bart Bassett has also told me on several occasions that I have the best knowledge of the file because I regularly go and check on it’s contents.

  

My submissions today relate to  

 

1. Why the s.96 DA is not the same development under s.96 (2);
2. Why this s.96 DA is designated development under the planning rules for non compliance not because it’s already out of area;
3. Why the EMP is seriously flawed;
4. Why the draft consent conditions are seriously flawed
5. Why Chief Planner Owens report and HCC is unreliable
6. The DA itself is flawed and shouldn’t have been accepted.

………………………………………….

 

1. Why the s.96 DA is not the same development [under s.96 (2)]

 

(a)    The last report from Umwelt says the lake will be 10 metres depth not 14 metres as per original approval;

(b)   The final landform will have 6 ha of dangerous dredge fines adjoining the banks of the final open waterbody while the original DA buried these 14 to 20 metres depth. A 30cm crust will be over these dredge fines which in wet weather could easily liquefy and become unstable. Further the dredge fines in shallows from zero to 10 metres depth will be a hazard to visitors, bushfire fighters harvesting water, and wildlife.

(c)    The original 1996 DA had staggered approvals to regulate rehabilitation and any non compliance, while the staging here is one approval all the way to 2021 for 5 different stages;

(d)   The final landform in the original DA is clearly set out with engineering design plans while this has a top elevation diagram and no other details how to achieve the depth or grading of batters or capacity of equipment to achieve the burial of dredge fines 14 to 20 metres;

(e)    The material to be mined is not the same material. Here they plan to mine and relocate up to 350,000 tonnes of existing dredge fines, rather than wash sand from its natural state to produce tailings;

(f)     It’s a different 1.3M tonnes of sand to the original 14 ha approved plan because they stranded a large deposit through failure to follow the depth specification in the original approval. It is also an extra 25K tonnes of sand per year.

(g)    There will be huge increase in fuel needed to pump or move existing dredge fines additional to normal sand production. If they need to move 300K tonnes of dredge fines, based on EIS figure of 2.4 litres of diesel per tonne of sand produced, the extra fuel will be 720,000 litres of diesel;

(h)    The economics of moving 300K tonnes of dredge fines at full cost of staff and equipment is a completely different proposal.

(i)      The new area will increase exposed water bodies and increase water loss to Tinda Ck estimated at 37% loss now with the quarry only expanding since 1996. Jewell (July 2007) says the water loss for a 22 ha water body would be 53%.

(j)     More water will be needed to process the extra 25K tonnes of sand production, as well as moving existing dredge fines. The water license for the dredge ponds is 40ML. The quarry already greatly exceeds its water licensing based on the hours of operation admitted at the stakeholder conference with Jewell at HCC Sept 2007 of 25 hours (Bygraves) applied pro rata Connors DLWC memo of 2005 of quarry use of an  estimated 150 ML loss at 30 hours, leaving a total of around 125 ML.

(k)   If this were the same development one might not expect so many changes to the draft consent conditions for the main 1996 approval

 

 

  2. Why this s.96 DA is designated development under the planning rules  

We have been advised by the NSW EDO by their letter of 17 Sept 2007 in the court bundle that this is a designated development under s.96 (2) of the EP&A Act. For consent under 96 (2) one is referred to the regulations. Regulation 2000 under the EP&A Act addresses whether an alteration is a designated development at Schedule 3, Part 2 clauses 35 and 36.

 

The factors discussed above at point 1 and in the EDO letter advise it is not substantially the same development.

 

Additional factors also apply under clause 36 of the Regulation not mentioned above or in the EDO letter: Clause 36 refers to

 

“previous environmental management performance including compliance with the conditions of any consents … or authorisations by a public body”

 

As evidenced by the letter of consent from the Dept of Lands dated 18 March 2009 allowing Birdon to apply to use Crown Land to bury silt fines from 15 to 20 metres (in Umwelt 14 August 2009) Birdon have effectively admitted they have not complied with this requirement in the approved plans for 13 years to date. A survey by Matt Freeburn confirms there has been no compliance with burial of dredge fines below 15 metres.

 

Further the 2005 orders by consent of the LEC (in Diamond & Kent v Birdon Poyneed  and HCC no. 40430 of 2005 ) - also the subject of Birdon’s failed notice of motion last week - requires Birdon to implement the recommendations of Ecowise/Golder Report as to 6 pairs of monitoring bore wells and installation of data loggers. HCC’s expert notes the failure to do this as compromised any reasonable water modelling on the impact of the quarry on Tinda Ck immediately downstream.

 

In addition the CSIRO report of July 2008 on "Drought exceptional circumstances" has not been addressed. This report was considered by C. Moore and C Taylor in the Peats Ridge water bottling Case 2008 where they took a precautionary approach at paragraphs 32, 33, 34, and 39 of Kettle/Coca Cola Australia v Gosford City Council  (2008).

 

And as per our statement of issues other non compliances include:

 

- 40% out of approved area, with this s.96 modification seeking retrospective approval, and as per letter of letter of HCC 7 November 2005 by Greg Hall to Birdon (not included in the bundle)

- concrete silt ponds never installed as required by EIS at page 12

- failure to provide annual reports as per Owens HCC Report

- failure to pay s.94 contributions of $46K as per recent decision of Lloyd J in this court

- demonstrably exceeding their water license allocations as per figures of 130ML/yr use in the CM Jewell expert report of July 2007 based on a mere 40-55ML/yr license allocation

- failure to report lack of Crown Consent under consent condition 33 reporting regime.

  

Additionally under Regulation 2000 schedule 3, clause 36 (c)

 “any proposals: (i) to mitigate the environmental impacts and manage any residual risk”  

This surely relates to the risks of the shallow silt fines in the lake dangerous in drought, and unstable on land surface in wet weather. Clause 36 (c) continues:

 (ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities  

This may well relate to guidelines on groundwater dependent eco-systems from DLWC/DWE, at risk as per expert report of hydrologist Chris Jewell to HCC regarding water loss from evaporation impact risk of bigger water bodies. SREP 20 will also apply as regards no adverse effect on groundwater dependent eco-systems.

 

Planner Owens attempts to say in his report the Concrite Case applies to show this is not designated development but the facts above are highly distinguishable from the Concrite case due to so much non compliance. Additionally there was no environmental damage in that case whereas here Umwelt’s EMP own ecology survey says Tinda Creek is running dry compared to other creeks at the same time immediately below the quarry, with lower signal species number. Jewell (July 2007) says there is 37% water loss in the same location.

 

 

 3. Why the July 2009 EMP is seriously flawed; 

Errors in the EMP, and Umwelt August report

 

1. At p2, first line – Tinda was not intermittent 1981 to 1996, stopped flowing only once in that time in 1982.
2. At p2  claim by Umwelt about stage 1 dredge pond having “minimal potential to cause significant lowering of the groundwater table upstream of the extraction area” which is flatly rejected by Jewell (July 2007 at page 7, 6^th paragraph). Jewell points out role of dynamic water system and evaporation. Further Wayne Connors of DLWC in 2003 noted about 1500ML was being pumped around the system with industry practice of 10% water loss.
3. Groundwater modelling at page 2 is dubious because as noted by Ecowise/Golder (2005) and Jewell and as required by consent Order 2005 monitoring bores and data loggers have not provided the required information to do accurate modelling for at least the 2 km of Tinda Ck immediately downstream of the quarry. Note especially the modelling locations in Figure 2.2 indicate location A is above the quarry and so not probative. Location B is on a tributary below and west of the bridge on Putty Rd and so also not very probative. Location C is many kilometres away downstream with many tributaries intervening and again not probative.
4. Jewell flatly contradicts Umwelt on water loss projections  by estimating 37% currently. Jewell being independent is to be preferred. Further Umwelt’s own ecology report attached (at EMP appendix 1 page 2 middle of page) indicates Tinda Ck at site 4 (figure 2.3) immediately below the quarry ‘runs dry even when similar creeks nearby run okay even in dry times’. A clear indication Tinda Ck is stressed at that point and probably for 2 km to the first tributary which is an un named creek from the south east. Jewell notes a 53% projected water loss if like the last 13 years the quarry just gets bigger and spreads to the full 22 ha area of the EIS study, with only 14 ha approved in  1996.
5. At section 3.3 re rehabilitation: There are no engineering diagrams or depth diagram or proven method indicated of moving existing dredge fines over the sand body stranded in the approved plan area at figure 3.1 given such fines will be heavy, congealed, worse than slurry concrete to pump. Yet at least some of the 350K existing tailings are to be moved to form a 6 ha land surface cap adjoining a final water body. Existing dredge fines  will be even harder to move once progressively dewatered. The EMP is glib about moving by “land overflow” and ‘pipe on floats’ but these likely can only work efficiently on dredge fines in suspension recently ejected from the cyclone to win sand output, not dredge fines that have settled for weeks, months or years in one mass. We don’t believe a cutter suction dredge will be able to pump solid dredge fines. By comparison we note the PF Formation or Dixon’s sand mine rehabilitation plan is a whole volume, not a thin document.
6. On rehabilitation the soil stockpile shown on the 1996 approved plans no longer exists because Poyneed the former business partner of Birdon has sold it off. Hence the EMP refers to capping from non existent soil onsite at only 30 cm crust over dredge fines without declaring the true state of affairs regarding topsoil.
7. On rehabilitation there is no schedule from now until 2021 unlike the approved plan with timetable included.
8. On rehabilitation there is no change to a woefully inadequate $50K bond.
9. On rehabilitation there is no mention of the EIS requirement of a maximum 30% of site disturbance rule.
10. The EMP on Erosion and Sediment Control at section 3.6, page 11 makes no mention of the “Formal hydrologic and hydraulic design” required. These details were required in the now infamous letter that HCC received from DLWC dated 15 July 1996 and failed (according to Justice Pain’s decision June 2009) to forward on to Birdon. Birdon should comply with this letter even now 13 years later.
11. Groundwater monitoring at section 4 page 14 is highly impertinent as it omits the mandatory recommendations required by consent Order 2005 in the LEC to have already implemented 6 pairs of monitoring bore wells. Jewell similarly notes failure to implement bore holes for monitoring in 2007.
12. Ecological monitoring at section 4.2: Birdon/Umwelt refuse to date to release to council or the public their ecological study they claim at appendix 1 to satisfy DECC’s EPA license. The study at appendix 1 is also troubling because the conclusion is a non sequitur to the contents of the report. Tinda Ck immediately below the quarry becomes a “intermittent drainage line”. At the crucial site no. 4 there is a poor signal grade of 1 compared to other sites. Also the author notes that section of Tinda Ck is badly affected by low water flow running dry while other comparable creeks run well even in dry periods. To say at page 3 therefore there is no impact on Tinda Ck is therefore quite a non sequitur. The EIS calls for seasonal study of frogs not limited sampling as here.
13. It is troubling to us that HCC have not retained independent hydrologist expert Chris Jewell to critique the Umwelt June EMP or 14 August response to our issues given Umwelt attacks Jewell’s finding at paragraph 20, page 6 August report.
14. P9 issue 17 para 35 of Umwelt August 2009 a claims testing was done east of existing extraction area by Coffey Partners. However Coffey diagram 7.4 in the EIS shows this is wrong or deceptive as the bore holes are inside the eastern boundary.
15. We believe the real solution to this hopeless development is radically different eg move the degraded  hill on lot 2 into and fill the quarry hole, and cap it to revive Tinda Crreek in 4 or 5 years, and use dry mining techniques to achieve that.

  

4. Why the draft consent conditions are seriously flawed

 

We note Mr Griffiths for HCC view in his letter of 27 Jan 09 that “It is unusual to impose conditions on a modification application.” Yet the draft consent conditions propose numerous changes including 10 weakly drafted conditions lifted without adaptation from a DECC letter of 20 Sept 2007.

 

Our feedback on the current proposed draft consent conditions (cc) from HCC/Applicant Birdon as follows:

(i)                  starting with cc 4, this should reflect the requirements of the letter of Marwan El Chamy dated 15 July 1996 as per paragraph 61 of Justice Pain’s recent decision, taking into account the effluxion of time and works to the current day.

(ii)                Cc 13 regarding amenity should remain especially as regards integrity of Tinda Ck downstream

(iii)               Cc 18 as per (ii) above in case of threats to Tinda Ck water quality and into the national park

(iv)              Cc 27 annual review of proposed EMP should also be provided to DECC and DWE.

(v)                Cc 27 should address changes in groundwater depths

(vi)              Cc 27 proposed EMP must address specifically how, and the scheduling, for relocation of dangerous shallow fine silt intended as the bottom of a final water body, or now to be capped, with engineering drawings showing depth dimensions. The silt is now approximately 350K tonnes.

(vii)             Cc 32 - Given the non compliance with dangerous shallow silt fines the bond should be $1M and $250K at the very least, as per previous costing estimates in our correspondence to council.

(viii)           Cc 33 - The annual report should to “to the satisfaction of council”.

(ix)              Cc 35 – The measure of 2M tonnes should be for the whole extraction since around 1986, not 1996, given illegal mining, retrospective approval in 1996 etc

(x)                Cc 37 – all the recommendations of expert CM Jewell should be adopted not just these 2, and they should be expressed in mandatory language with specified scheduling. The closure plan should be copied to and approved by DECC and DWE not just HCC.

   

5. Why Chief Planner Owens report and HCC are unreliable in this litigation 

The Owens report fails to address various non compliance issues re crown consent, dredge fines in wrong place, lack of engineering diagrams for current proposal, deceptive application and so on.

 

HCC have failed in this litigation to call evidence from the objectors in the first half of this split hearing on the legal question of consent condition 4 lapsing of consent. That question turned on alleged lack of notice to Birdon of DLWC 1996 letter on sedimentation and erosion control. We believe reticence by HCC is to avoid embarrassment over past non compliance or regulation rather than to address the merits of the new DA.

 

Further the extended Owens report does not mention that his report is in lieu of a promise to the community by two previous general managers, as well as by HCC to ICAC, for an independent review of Tinda Ck by a qualified independent barrister. Correspondence shows this was to be barrister Phil Clay or Mary Walker but they were never appointed.

 

It is troubling to us also that HCC have not called Chris Jewell as their independent expert to respond to Umwelt for Birdon.

 

It is also troubling the redundant May 1995 EIS appeared in the draft list of the court bundle given consent condition 1 cross references the Nov 1995 EIS.

 

It is troubling to us that HCC has not checked with council surveyors or engineers about how the rehab could work moving existing silt fines after years in sediment ponds via “overland flow” or “pipe attached to floats” or other engineering limits to burying the silt fines as per the approved plans, or the adequacy of a $50K bond.

 

It is troubling to us the draft court bundle (total at that stage of 114) excludes the 2005 LEC Order re clause 4(a) mandatory recommendations of Ecowise/Golder (Oct 2005) and that report also excluded, which is cross referenced by Jewell July 2007, in turn cross referenced by Umwelt (August 09). The Order and report demonstrate failure to implement monitoring bores.

  

6. The DA itself is flawed and shouldn’t have been accepted.

 

The DA doesn’t declare retrospective approval sought for illegal works.

 

Contrary to the 2000 EP&A Regulation at clause 283, the Applicant via agent Umwelt  claimed “confusion” over the specific approved plans and proposed a replacement plan, presumably to sanitise the non compliances to date regarding dredge fines to be buried at depth.

 

There has never been any confusion over the real approved plans in 3 parts dated April 1996. Additionally the advert of the s.96 application falsely indicated Tinda Ck was truncated 500 metres from the current sandmine operations when it runs immediately proximate to the sandmine.

   

Posted by editor at 3:07 PM NZT

Updated: Friday, 28 August 2009 4:37 PM NZT

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Mood:  hug me

Author’s general introductory note

This is not a well packaged story. It’s a contemporaneous traverse of the Sunday television free to air political talkies indicating the agenda of Establishment interests: Better to know ones rivals and allies  in Big Politics and Big Media. Perhaps the greatest utility is the headline synthesis above of the 3 or 4 shows followed in this session.

For actual transcripts and/or video feeds go to the programme web sites quoted including Riley Diary on 7. And note transcripts don’t really give you the image content value.

Other sources of pollie talkies on Sunday include SkyNews paytv Sunday Agenda, Radio National Monica Attard Sunday Profile show. And of course Sunday night shows SBS Dateline, Sixty Minutes and now Sunday Tonight on 7.  

Media backgrounders.

1. Re Turnbull alleged pitch/recruiting to/by the ALP, Beazley sent this writer (SAM editor) an email to join their youth roundtable – about 1999 or 2000. We refused much to chagrin of FoE national office. Has the sniff of ALP choreography weakly related to reality but as they say perception can be reality.
2. Garrett quick off the blocks midday Thursday on abc radio re strong role on Barrow Island class A nature reserve, as oil spill revealed earlier that morning. More ALP choreography on the environment after pre empting his decision with a $50B fanfare?
3. ABC 702 Morning show by Adam Spencer increasingly Sienfeld issues lite. Just as the NSW ALP govt prefer? The contrast with Fran Kelly/Michelle Grattan, and even Saturday Extra is a quite stark, but then a 45 year old wonk here would probably say that.
4. Annabel Crabb running interference for Julia Gillard, now AC is a parent angling for more secure future work in Govt protecting her drip feed now? What effect did those hair care products have on her brain?
5. Santos says it’s ALP spin/hyperbole re Gorgon pre eminence [not to mention w*nk] . We saw the same big media gullibility for ALP choreography during the Bob Carr forest protection/destruction decisions claiming “biggest national park decision in the world”. Only it came in behind innumerable bigger decisions across the Americas, and see:

http://www.news.com.au/couriermail/story/0,23739,25957701-953,00.html

Santos says its gas deal tops $50b Gorgon contract

Cameron EnglandAugust 21, 2009 12:00amSANTOS says its 20-year deal to supply liquefied natural gas from Queensland to Malaysian company Petronas is actually Australia's biggest.Its chief executive, David Knox, yesterday denied the $50 billion Gorgon deal announced earlier this week held that title.

Mr Knox let slip in a conference call that he believed the Petronas deal, signed in June, was the biggest.

"We haven't given a figure," Mr Knox said.

"It's for three million tonnes and it's for 20 years and it's at very strong prices."

"So, if people have got more than three million tonnes for 20 years at very strong prices then they've done a bigger deal, but I don't think anybody has.

"I think they're all smaller, and I'm not sure they've done it.

"It's not a massive competition here, clearly all of these are big deals, so we haven't made a big thing about it, but clearly we've signed one of the largest deals ever." 

6. Seems PM story last Friday on East Gippsland cathedral old growth of  800 year old trees is being swamped by more ALP spin, saying lack of endangered fauna means okay to log, and reserve decision of 400ha of forest nearby but not the old tree patch. Same sleazy govt rationale for 1402 area of Coolangubra in the late 90ies. Fact is these massive old trees are an endangered landscape type, not so much species as huge wet size, compared to spindly dry schlerophyll  forest which was left by loggers around Marysville, Kinglake etc. In other words firestorm material compared to spongy wet old growth. The loggers legacy of mega fire after 50 years of mechanization? The last evidence of logger legacy is about to be killed at Brown Mountain like the other 95%?

7. Speaking of bushfire threat after first report of Victorian Bushfire Royal Commission, hazard reduction burns are testing the public's nerves lately, the price to pay for the tragedy in Victoria:

Intro re 25 yr $50B lng deal with China [smaller than Santos deal with Malaysia?]. Oil spill [shows risk to Barrow Island and role of PGarret to refuse/constrain.]

Grab of shadow Bishop re China relations [preaching to WA miner lobby?]

Headlines in Sydney Fairfax re Turnbull seeking shadow finance job with Beazley opposition. Compere PB notes looks like ALP going in to finish him off?

Talent is M Ferguson Energy minister [doing his best to play Rex Conner only successful]. Sledges Turnbull, talks up environmental responsibility and chummy with PG “Peter”.

First adbreak Kaspersky with Jackie Chan classy web security used for years now. Nurses profile advert.

Grab of Greg Hunt shadow on env.

Panel is Alison Carabine 2gb, Hartcher Fairfax both serious people. Talks up base load for wave and geothermal and storage capacity. Technology will be the solution [on climate].

Hartcher looking thinner, good question on coal guarantees. MF talks about “investment horizon on renewables”. Keen to expand U exports not nuke power.

2^nd out take. MF says JV pushed ‘use it or lose it’. Bipartisan approach on Gorgon deal.

Prof Amin Sykle on Afghan election. Noted Karzai regime appeasing fascist patriarchy there. Not help to pull out. Talking with Taliban discussed. Opium barons.

Meet The Press - Watch Political Video Online - Channel TEN.

Riley Diary 7, from 8.40am (clash with Laurie Oakes segment).

Footage ALP gang bash of Turnbull re “bad judgement”. Tax increases riposte. Terminator movie theme, war music theme. Senate power biffo between Family First and National Party ie Fielding and Joyce.

WA MP’s walkout looked “stupid”. Barry Hass a senior’s moment on camera [and cheap gotcha on Big Media’s part]

Out take talkies about Turnbull “approached” by the ALP, “not surprising”.

  http://www.seven.com.au/sunrise/weekend   

9 Sunday newshour Laurie Oakes interview 8.44 am 

Advertised start time now, to avoid clash with Riley Diary?

Joyce, sledging ETS, no benefit on climate, consumers farmers, every producer will pay.

Obviously declines shadow Bishop fractious approach to China, as we must defend our own liberty. Says Rudd is a mixed metaphor. “Disaster” sounds pretty lame give relations with new Obama presidency?

Leadership chat.

http://news.ninemsn.com.au/oakes

Insiders 2: 9- 10am

‘Largest biggest deal’ says Cassidy compere and PM Rudd to Parliament. Barry Hass senior’s moment plays into rabble claim against Opposition. Collective dunny break funny line.

Panel is AC with rococo hair style with hair colour?/Fairfax, Mal Farr News corp Sydney, Bolt

Turnbull in press, Bolt notes Nelson and Turnbull shows neglected. Compere PB on 10 MTP ALP “trying to finish him off”.

Sledge of NSW and Rees plan. Grab of Joyce on leadership.

Wayne Truss praises Barnaby Joyce. Sledges ETS, CPRS.  Echoed by dinosaur Paul Kelly at The Australian soliloquy.

Vox pop in fish market somewhere on Turnbull stature.. AC notes Rees in ALP doing a Beatie “I’m angry too at how rubbish I am” which is not what Beatie did, he campaigned against his own tribe which the punters loved.

http://www.abc.net.au/insiders

Refer http://www.abc.net.au/insidebusiness/

………………………..

Posted by editor at 1:04 PM NZT

Updated: Sunday, 23 August 2009 1:18 PM NZT

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Mood:  rushed

 Under construction

[due to public interest legal case obligations this weekly item has been postponed. The notes are there but sand mine issue in Blue Mtns World Heritage Issue takes precedence] 

This is not a well packaged story. It’s a contemporaneous traverse of the Sunday television free to air political talkies indicating the agenda of Establishment interests: Better to know ones rivals and allies  in Big Politics and Big Media. 

For actual transcripts and/or video feeds go to the programme web sites quoted including Riley Diary on 7. And note transcripts don’t really give you the image content value.

Other sources of pollie talkies on Sunday include SkyNews paytv Sunday Agenda, Radio National Monica Attard Sunday Profile show. And of course Sunday night shows SBS Dateline, Sixty Minutes and now Sunday Tonight on 7.  

Media backgrounders

10 Meet the Press:  8- 8-30 am  

Meet The Press - Watch Political Video Online - Channel TEN.

Riley Diary 7, from 8.40am (clash with Laurie Oakes segment).   http://www.seven.com.au/sunrise/weekend   

9 Sunday newshour Laurie Oakes interview 8.40 am  

http://news.ninemsn.com.au/oakes

Insiders 2: 9- 10am

http://www.abc.net.au/insiders

Inside Business with Alan Kohler 

Refer http://www.abc.net.au/insidebusiness/

………………………..

Posted by editor at 2:11 PM NZT

Updated: Tuesday, 18 August 2009 10:25 AM NZT

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Mood:  sad

We haven't seen today's press but radio reports brings back both fond and painful memories of one of SAM editor's youthful adventures complete with malaria (Plasmodium vivax)

This is an entry from our biography at the left side link here:

1/1990 – solo trek of Kokoda Track

We had another map, vertical dimensions not plan style as above, but it got too faded over the last many years. We should have got it laminated not just mounted behind glass. After so much angst we promised ourselves to frame it.

Nor did we take a camera prior to our community media lifestyle.

Our main contribution to this unfolding tragedy is to point out you didn't need to fly to Kokoda and head back to Port Moresby to leave PNG: One presumes tour companies prefer this as arrivals into the country must have an "exit ticket from PNG" and Port Moresby is the only practical international airport near the Track about 30 km from the coastal end. The Track itself is about 100km  length roughly from the coastal start to Kokoda over the Owen Stanley ranges. Longer again up and down valleys.

Our plan was different - of course partly due to budget. We planned to walk the Track and then head further north from Kokoda to Lae on the North Coast, and exit by ship or boat via Bougainville. Our "exit ticket" so called was out of Honiara, not PNG at all, capital of Pacific Island state of Solomon Islands via island hopping from PNG.

Only we got malaria half way on our trip after the Kokoda leg up at Lae (north coast PNG) and had to fly by large jet from Lae (international ?) airport to Port Moresby then back to Australia.

On first arrival in PNG and cultural experience for 2 days in the markets and mini buses of  Moresby noting the red juice on the footpath (betel nut) on there on the south coast we took same public transport from this rambling city to a nearby village called Sogeri near the Track. Sogeri  is also close to a national park (home of tree people). It was middle of summer but still deserted. How sad.

We distinctly remember an inflated price demanded by the bus driver presumably because he thought we must be a rich Anglo. But fact is we sold all our spare stuff, books, clothes, to pay for the trip including our old Peugoet 404 sedan, as well as 3 weeks heavy lifting with a removalist firm. We must have raised our voice in protest but keeping in mind the Lonely Planet caution that shouting is a cultural no no in PNG.

The Track was a challenge. We fell on our arse first 10 metres on slick muddy surface which really hurt with a full pack. It was a serious moment. For a minute we believed this would be impossible. We groped around for a walking staff. We took one shaky step. Then two steps. We can do this! Very character building.

At one point on our Track experience we came to a scary river fjord, with single log to cross. We unbuckled in case we fell in to prevent drowning. We grovelled on backside again and continued on. Later we got lost on the track as per the image above. Maybe it was the initial symptoms of malaria? We stumbled into a creek after striking a hugely painful poisonous prickle bush. We howled until the cold water miraculously washed the pain out. On yet another early morning we passed a guy with a double barrel shot gun over his shoulder. There was a night rained in with a shrieking native bird nearby. There was delicious local freeze dried coffee cowboy brew and chewy roasted corn cobbs in the husk.

We ended up in a village off the track which from memory was Efogi (as per regional map name below). There was a plane arriving there at the village same time the villagers came to greet this lone Anglo. They suddenly left me as they changed direction ululating in excitement as the little plane arrived on the grass oval style runway. Supplies! Later they sold me some food and portered me up the highest point Mt Belamy back on the Track. I was proud but just then very grateful for the help and paid them what I could for their support before they turned back at the top.

We have one amusing memory of a missionary surrounded by porters. Mmm.

The people treated me beautifully on the Track while careful to warn me about murderous raskol gangs (at that time at Kokoda, letting me sleep inside away from trouble).

The trip from Kokoda was also very interesting. Not flying. By road transport, like Charlie Boorman perhaps, in the back of a local villager's ute with other locals, to the local Port of Popendetta/Oro Bay. From there by large Lutheran Ferry to Lae. Then as mentioned large jet flight (Air Niugini) back to Moresby - but only after Qantas who claimed to lose my ticket out of Honiara gave me a substitute ticket back home. Perhaps they were worried I would die of malaria on their counter? The only sympathy came from a local PNG worker.

Did my ticket really go missing? Perhaps ASIS had twigged that a wild Canberra law student was tracking over to Bougainville in the middle of a civil war over Rio Tinto's gold and copper mine?

After getting to Lae and following 6 days and 5 nights of no sleep or food from a stomach bug, actually malaria, and then treatment from Lae hospital and I was barely well enough to walk to and from the plane over the tarmac(s) at Lae and Moresby. Sydney never looked so good.

Posted by editor at 9:35 AM NZT

Updated: Sunday, 16 August 2009 2:02 PM NZT

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Mood:  quizzical

Author’s general introductory note  

This is not a well packaged story. It’s a contemporaneous traverse of the Sunday television free to air political talkies indicating the agenda of Establishment interests: Better to know ones rivals and allies  in Big Politics and Big Media. 

For actual transcripts and/or video feeds go to the programme web sites quoted including Riley Diary on 7. And note transcripts don’t really give you the image content value.

Other sources of pollie talkies on Sunday include SkyNews paytv Sunday Agenda, Radio National Monica Attard Sunday Profile show. And of course Sunday night shows SBS Dateline, Sixty Minutes and now Sunday Tonight on 7.  

Media backgrounders 

2. Telstra price gouging, with interesting response from the ACCC here especially re unconscionable conduct of Telstra. They say not (see bold added below), but we wonder:

From: ecologya
Sent: Thursday, 23 July 2009 3:39 PM
To: Infocentre
Subject: Complaint form submission [SEC=UNCLASSIFIED]

Dear Mr McLoughlin, Thank you for your email of 23 July 2009 to the Australian Competition and Consumer Commission (ACCC) regarding the $2.20 fee Telstra is now imposing if customers choose to pay in cash. 

The ACCC administers the Trade Practices Act 1974 (TPA) for the purposes of protecting consumers and encouraging a fair and competitive business environment. 

From the information you have provided in your email it is unlikely that the conduct by Telstra would raise concerns under the TPA. If Telstra choose to increase their fees for services, they are free to do so. The ACCC is not a price setting body for goods and services at either the retail or wholesale levels. It does not have a direct role in regulating or setting prices except in the case of products or services that are declared under Part IIIA of the TPA. Internet service provision has not been declared under Part IIIA of the TPA. In these circumstances Telstra is free to determine its own pricing policies and provided that it does this independently it is unlikely to raise concerns under the TPA. 

Generally speaking, companies are free to set the terms and conditions of their contracts. The issues you raise are very specific matters of a contractual nature. While it is not the role of this office to provide legal advice, I would suggest you put your complaint in writing directly to Telstra in an endeavour to resolve your concerns. Should you still be dissatisfied, you may wish to seek independent legal advice on whether civil action might be appropriate. It is up to an aggrieved party to bring a private action if they believe they have suffered loss or damages as a result of any breach of the terms or conditions of a contract. 

Please note however,  that Telstra have included a clause in their contracts with consumers that provides for changes to rates and charges provided that they give reasonable notice of the changes. Clauses of this nature are sometimes referred to as unilateral variation clauses and are not, of themselves, prohibited by any provision within the TPA.   

That said, this office accepts that unilateral variation clauses can be a factor that the Courts will take into account in determining whether a corporation has engaged in conduct that might be considered to be ‘unconscionable’. In this regard s.51ABof the TPA includes a non-exhaustive list of factors which may be taken into account by the court. It should be noted that unconscionable conduct goes beyond normal harsh dealings and all of the circumstances need to be examined to establish whether a contravention has occurred. The Courts in applying this provision have often stated that simply establishing one of the factors listed in this provision is insufficient to substantiate a claim of unconscionable conduct. In this instance, this office is of the view that Telstra’s reliance on a unilateral variation clause to impose the price increase you complain of would not, of itself, result in the transaction being unconscionable. 

It may be of interest to you that Australian Communications & Media Authority (ACMA) administers a code of conduct for the telecommunications industry entitled “Consumer Contracts Code”. Held within this code is specific mention about unilateral variation clauses and it outlines the obligations of telecommunication providers when applying such clauses. To find out more information about this code you can contact ACMA on 1300 850 115 or by visiting their website at www.acma.gov.au. 

In addition, if you are seeking to exit your contract without penalty, you may wish to raise your concerns with the Telecommunications Industry Ombudsman (TIO). The TIO is an independent, non-government scheme which has been set up to assist consumers with speedy dispute resolution with their telecommunication service providers. Consumers should only contact the TIO if they have already attempted to resolve the dispute with the trader involved. The TIO can be contacted on 1800 062 058, or at www.tio.com.au.  

I have recorded the details of your complaint in order to determine whether there is a pattern of behaviour by this particular trader or the telecommunications industry which may raise any broader concerns. Thank you for contacting the ACCC. I trust the above information is of assistance. Yours Sincerely,   FraserACCC InfocentrePh: 1300 302 502 

---

From: ecologya@
Sent: Thursday, 23 July 2009 3:39 PM
To: Infocentre
Subject: Complaint form submission [SEC=UNCLASSIFIED]

Complainant details

Mr Tom McLoughlin
NSW 2756
AustraliaAge: 45-54
Gender: male

Contact details

Date received: 23^rd July 2009

Product provider: Telstra
Product description: mobile, wireless broadband package

Complaint

I was a commercial litigation lawyer at Baker McKenzie in another life 1990-91. As per my phone message and email to Choice/policy officer Michael Fromme (spelling?) earlier today, Telstra changing their cash payment system adding a fee for EXISTING (therefore no notice) customers [reported on abc Richard Glover radio earlier this week] looks to me like deceptive conduct (breach s.52 Trade Practices Act). How? Because EVEN IF their contracts have fine print to alter these payment systems adding a $2.20 fee for processing casj (I don't know), it's been no fee FOR TIME IMMEMORIAL. It is totally reasonable for people to assume there will ALWAYS be no processing fee for cash. So they should ONLY be allowed to change the payment system for those who enter A NEW contract of service with NOTICE of potential change in payment system and fee. Otherwise the new fee is a deceptive omission to their original contract, and harsh and unconscionable too. For instance I recently took a mobile/wireless internet package, and I like to pay by cash not by the web because I don't trust it's security with account details and want to minimise that exposure as much as possible. If I had known they would change their account payment system with $2.20 fee when I took the contract/s in March 2009 I may well have decided to go with another provider. At least I would have wanted to know their extra fee per month

Additional information

---
IMPORTANT: This email from the Australian Competition and Consumer Commission (ACCC), and any attachments to it, contains information that is confidential and may also be the subject of legal, professional or other privilege.  If you are not the intended recipient, you must not review, copy, disseminate, disclose to others or take action in reliance of, any material contained within this email.  If you have received this email in error, please let the ACCC know by reply email to the sender informing them of the mistake and delete all copies from your computer system. For the purposes of the Spam Act 2003, this email is authorised by the ACCC www.accc.gov.au

..............................  

3. Rachel Kohn religious show radio national this morning has farmers suffering ‘climatic but not climate change’. Go figure.

10 Meet the Press:  8- 8-30 am 

Bonge back in the chair. Press roundup conservative manual Sunday Telegraph says spill on Turnbull on  this Tues  

‘Talent’ is Senator Joyce. Runs debt line, won’t afford to pay interest soon (?). ays Turnbull bad 2 innings but won’t condemn. Employment Terminator Scheme, Extra Tax System. Says Penny Wong at her word won’t change. Calls ETS a “political fascinator” [and appears to be ranting] [no reference to science] 

First break is nurses association advert. Panel John Stanely 2UE, Michelle Grattan Age Fairfax – heavy talent. Tackle Joyce on Nats leadership – confirms in spades but leaves timing up in air. Praises current leader. Calms down when black sheep question comes up. Refuses to bag wild Wilson Tuckey.  

2^nd ad break has McDonalds little athletics advert [Sydney Fun Run day, but still not a health food chain]. 

2^nd guest is Senator Christine Milne looking sparkly, advert lead in of senator Brown. Refers to science. Need to avoid catastrophic climate change and ALP want to ‘lock in failure’. 25% cut by 2020 offer. Grattan tests re supporters want compromise, Milne quotes poll majority want Senate to toughen it up. Milne broadens our to forests, energy and more. Says vote winner for Greens. Glacier retreat in South America and Himalaya.  Scenario in double dissolution – how vote? Election will be post Copenhagen and make clear tougher measures needed. Better to strengthen now. How respond to skeptics re big changes here little or no effect globally. Refers to coal exports missing transformational economy (looking a little prozac about it too).

Grattan looks intrigued in the out take, perhaps impressed by Milne too? 

Meet The Press - Watch Political Video Online - Channel TEN.

Riley Diary 7, from 8.40am (clash with Laurie Oakes segment). 

Master Chef Julia Gillard theme. Gist is Gillard is defacto replacement for Rudd and rival. Riley convinced Turnbull will survive, utegate is over in public mind.  http://www.seven.com.au/sunrise/weekend   

9 Sunday newshour Laurie Oakes interview 8.40 am 

Christopher Pyne shadow manager of business, refers to parlour game of leadership issues. First 5 minutes about leadership. Ouch. Make that 7 minutes. At 7 minutes moves to ETS due for vote this week.

Pyne manfully plays dead bat in favour of Turnbull and it’s pretty grim stuff grinding it out.

Economy based on RBA latest is doing better than most countries. Claims economic spin by ALP.

Compere(s) sound unconvinced in out take.

http://news.ninemsn.com.au/oakes

Insiders 2: 9- 10am

Lead in and package on Turnbull crash out on Godwin Grech false email.

Panel is Middleton sbs, Coorey Fairfax, Milne News corp.

Press round up double dissolution hangs on regulations. Grabs from MTP above. To answer is Penny Wong, price of having a voice globally is legislation at home. [Talks big but comes across as cynical and arrogant as usual about failed green policies to date.]

Wong hangs tough on any discussion with disorganized Coalition awaiting next Tuesday party room meeting.

Attacks Greens on interest of a double dissolution election as political. Assuming high moral ground (as if). Cassidy notes renewable energy tied to ETS should be decoupled. [Brute politics and cynical.]

Take environmental refugees from Pacific? Wong applies mogadon with no decent answer, panders to concerns. [She is like a Chinese panda – all symbolism no action.]

Looking and talking like she is quite cocky and full of herself at Turnbull’s expense.

Vox pop – WA in Perth economy, sledging Coalition, utegate is tedious.

Panel on privileges committee – Milne refers to Gretch evidence of email on 20 Feb, claims it would be on PMO server, but deleted from Treasury. Unless it was sent by Charlton from within Treasury? Or else Grech chose a day that couldn’t be cross checked because of IT crash that day?

Costello lauding over Turnbull on Lateline.

[small interruption here]

Paul Kelly soliloquy – Grech evidence could be a trap for Rudd as well as Turnbull. Leadership is a real issue now. Lists Opposition leaders hitting the wall, Howard, Downer, Costello, Nelson, others.

Panel agrees Joyce appears as Nats leader and no pretense at Coalition unity.

NT ructions, NSW ructions also. Federal redistribution favours ALP in NSW, noted Rudd mild support for Rees recently.

Warren on talking pics great combo – prefer to trek across Antarctica with a backpack of funnel web spiders, than hang with Malcolm.

http://www.abc.net.au/insiders

Inside Business with Alan Kohler 

Refer http://www.abc.net.au/insidebusiness/

Posted by editor at 12:10 PM NZT

Updated: Wednesday, 12 August 2009 9:07 AM NZT

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Mood:  hug me

  Author’s general introductory note  

This is not a well packaged story. It’s a contemporaneous traverse of the Sunday television free to air political talkies indicating the agenda of Establishment interests: Better to know ones rivals and allies  in Big Politics and Big Media. 

For actual transcripts and/or video feeds go to the programme web sites quoted including Riley Diary on 7. And note transcripts don’t really give you the image content value.

Other sources of pollie talkies on Sunday include SkyNews paytv Sunday Agenda, Radio National Monica Attard Sunday Profile show. And of course Sunday night shows SBS Dateline, Sixty Minutes and now Sunday Tonight on 7.  

  Media backgrounders 

1. Peter Woof (school teacher, Northern Suburbs boy) assaulted by Tony Abbott swinging punch as Sydney Uni Student, for real back in the 1970ies, Glebe Magistrates Court, forced to withdraw charge due to heavy lawyer costs threat. Privilege and aggression all in one incident as the mark of the man, muscular arrogant conservative. Feel free to sue Tony Abbott! Make me rich. 
2. Sleaze jobs for boys(girls) in the long time ALP state governments echoed by Albanese’s seat of Grayndler with no advertisement of general manager ‘s job at Addison Rd Community Centre for some 2 years. A rolled gold scandal, jobs for the sisters Yvette Andrews co author with Meredith Burgmann. Extensively reported here on SAM over 12 months 2007-2008. 
3. Biosecurity Australia on Macca Australia All Over hosing down super flu fear, in wake of swine flu in pigs W shape pandemic, in out, in out potentially worse. But source tells us last week quarantine at Sydney Airport has changed recently, collected boxes from airport, took them to Alexandria, then took them back to KSA to be processed. Completely breaching “bio security” one assumes, all authorized and directed by same customs. What a joke. Source was also alarmed as well as time delays. 
4. Turnbull to respond to elitist gibes with Australian Story tomorrow night. Who knows if it will work.  
5. SAM’s gluten free diet is going quite well. ColesWorth gluten free choc biscuits are choice, as are berry frozen yoghurt and or Weiss ice cream, Dorito regular corn chips, fetta cheese etc. It’s a hard life.  Energy levels and humour are both on the up. Just as well helping run two pro bono legal matters, one social justice for disabled colleague, another to protect section of Blue Mtns World Heritage Area. The former as next friend as they say in the trade, and latter as legal agent as allowed under by L&E Court Act 1979 for a lawyer without a principal. But can’t help thinking we continue to suffer a restraint of trade given qualification back in 1990 and over 2 years real legal work over the years. Regularly have to reject requests for legal help. 
6. ALP conference life time membership to “Yellow Cake Bob” Hawke as per collector’s piece 1980ies lapel buttons produced by Friends of the Earth green group. Hawke for last 10 years has been courting an international nuke waste dump for Australia called Pangea. For real. 
7. Noel Pearson never mentions Howard breach of election promise 1996 for $40M to implement the broadly based consensus of Cape York Land Use Agreement in 1997. This silence was arguably the price of direct Howard/Brough grants to Pearson’s CY Foundation for 5 years??. Very messy indeed, and not so clear where the sleaze ends. Looking as fat as ever too. and such as Noel protege Tania Major on Q &A last week??.True however that the Blackfellas were promised by TWS in Cape York that their ownership would be recognized, from their Land & Rights Indigenous policy of 1993/4 national conference after Mabo (out of Sydney office of TWS and directly supported by this writer at the time – copy around somewhere in due course. Note however this always left open conceivable possibility of campaigning against Black developer owners. The obverse being Yvonne Margarula alliance with TWS, FoE etc say at Jabiluka against U mining there.
8. Ben Sandilands on crikey.com.au says it's Richmond or the bush for 2nd Sydney airport with Albanese in infrastructure, Faulkner in Defence with RAAF base out there near Richmond and note this back in Dec 2007 just after ALP election:

Bonge away, bill in the chair.

Tony Abbott re Battlines book, claims not a job application despite timing of leader Turnbull (very) low in the polls. Grab of Turbull saying did a charity launch ‘clash’ with book launch.

TA says  Footage of celibacy adviser section of book launch speech, first out take.  Panel is Mark Kenny Adeliades News Corp and Toohey AFR/Fairfax. Both fair/good value. Runs local control agenda in health reform.

Toohey tackles finances, response that local funded donations ripped off at present elsewhere, [so clearly about leveraging existing privilege in Liberal local areas]. Toohey tackles financing of superannuants to 70 years – Abbott defends [straight out of West Wing episode Josh Lyman adverts against Republicans working till your 90, but policy is probably valid still re demographics]. Classic people skills (irony) Abbott re ALP conference ALP has no life, with “mogadon” control of PM, “buying popularity with borrowed money”.

Abbott reveals “dubious on climate  change science” but sop to sh*t browns in party in context of agreeing to ETS as can’t win the argument. Out take is Wilcox re PM Rudd cartoon no real action on Health, just cheap talk image true enough. 

Bruce Hawker looking well fed and contented lobbyist is 2^nd guest. ALP conference an “elaborate fundraiser” question ouch, BH argues “presenting a united front [so political presentation to offside Coalition]. Argues ALP united on ETS, how many coalition to make an ETS, no one knows, either do they (cheap laugh?). Addresses [not] sleaze of lobbying in the ALP, rests his defence on non existing transparency.   

Meet The Press - Watch Political Video Online - Channel TEN.

Riley Diary 7, from 8.30am  

ALP protest re Gunns pulp mill, and marine King Neptune etc, then slumber party of the ALP conference, footage of Alan Griffin.  Hawke footage swear over mining Antarctica [to cover his pro nuke, uranium, international waste dump Yellowcake Bob real history. Hawke did help save Franklin River but very mixed bag now.] Direct clash with Laurie Oakes who goes by the wayside by 8.46 am. Not a bad outcome framing united front but boring for the media. http://www.seven.com.au/sunrise/weekend   

Only from 8.47 am clash with Riley Diary.

Mostly boiler plate but will have to re watch on web if possible.

Swan comments on fake email affair, and declines to answer but implies seen Auditor General report already.

http://news.ninemsn.com.au/oakes

Insiders 2: 9- 10am

Riley Diary style disco beat on ALP Conference, lots of grabs offset with Abbott book launch ‘never said an interesting thing in his life’, not under or overestimate PM Rudd.

Utegate fake email in Australian Story.

Uhlmann report natural evolution of Australian Politics re “dull report”. Notes Arbib vapour trail of a policy.  Technical problems: Return segment: “reversed the polarity” ! Argues Rudd is from but not of the ALP. Says Rudd rejects 108 history of the ALP in power only 13 years (or times? Have to check.).

Go to press round up, press reporting Turnbull met Grech. Weak commentary about Turnbulls on Austalian Story.  Anna Bligh in big trouble re perceptions of ALP cronyism.

Gillard is guest with boilerplate. Rolls out division in Coalition and conspicuous display of ‘unity’ at national conference. Talking about conspicuous cronyism in state ALP governments particularly Qld.

Vox pop with laughter club with pollies as the butt, then into serious Q & A, says will extend lives by 2 years, compared to Govt (in)action on national health reforms.

Arbib debacle in front of SkyNews in speak to set piece Rudd announcement re 50K new green jobs. Noted that he is national convenor of the Right of ALP. Bolt argues Rudd is making Arbib the fall guy for a deceitful policy [as per Greens critique where referred to as a cruel deceit in a ‘coal economy’].

Beattie $500K job in USA argues no cronyism in ALP, payment for access, including business disturbed also. Bolt argues unionist control of green energy assets is sleazy.

Noel Pearson on Qld – outside lobby groups installed in bureaucratic apparatus – Adrian on wild rivers previously Wildlife Preservation Society, Chalco mine lobbyists also. [Noel Pearson never mentions Howard breach of election promise 1996 for $40M to implement the broadly based consensus of Cape York Land Use Agreement 1997. This silence arguably is the price of direct Howard grants to Pearson’s CY Foundation and such as Noel protege Tania Major on Q &A last week??. Very messy indeed, and not so clear. Looking as fat as ever too.]

Talking Pics, pushed back to end of the show now. Health theme Rudd no action [as per Clarke & Dawe].  

Humour takeout UK MP David Cameron too many twits make a twat.

http://www.abc.net.au/insiders

  Inside Business with Alan Kohler 

Uranium coverage.Rod Atkinson with Scottish accent like Dirt Game exec, but exec for ERA in Darwin for real, intro says ERA tripled its profit to $100M plus first exports to China also, [with no guarantee it will go into their nuke weapons or shift along their supplies for same effect].

Note successful Black Green campaign at Jabiluka against expansion of Ranger at Jabiru, including this writer confidential legal report and protester support in Jabiru court [this bit interrupted by 43 bikers shiny machines, not bikies per se]. Cross refers to massive increase at Olympic Dam by BHP there.

Refer http://www.abc.net.au/insidebusiness/

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Posted by editor at 12:01 PM NZT

Updated: Sunday, 2 August 2009 12:26 PM NZT

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