Diamond Diary Part 1: Amazing career of environmental litigation
Mood:
on fire
Topic: legal
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Over the last 2 months we have been doing pro bono work for Mr Diamond as his court agent in the Land & Environment Court jurisdiction.
He recently swore a 41 page affidavit which gives a history of his at times very effective legal activism from 1995 to 2008. Regretably his latest case was dismissed yesterday due inter alia to $30,000 in unpaid costs to the same sandminer in previous litigation, and bankruptcy.
Justice Lloyd in the Land & Environment Court stated he couldn't and wouldn't look to the detail of how he came to be owing $30,000 to Birdon Contracting Pty Ltd, or how he became bankrupt, we say fighting the (mostly) good fight against illegal sandminers. In fact Lloyd J said his affidavit was "inadmissable" for lack of relevance.
We respectfully disagreed with his Honour and duly lost but in any event we offer the same hot affidavit for the information of the court of public opinion, so to speak. Because there-in is quite a ripping yarn: Of
evil sabotage,
fire bombing, home invasions and gunfire
polluted waterways,
stolen guns,
drains illegally bulldozed through crown land,
rival sandminer secretly funding litigation with thousands in cash paid over in the LEC toilet so lawyers would go on that day,
revenge by allegedly bent council officers resulting in $6M in lost revenues to one sandminer
same officers allegedly getting the boot including a general manager
Ministerial salve on the open wound of 'the sand wars at Maroota',
$50,000 payoffs to go away, and
ongoing illegal sandmining impacting World Heritage Tinda Creek under a lapsed consent since 1999-2008.
The decision yesterday by Lloyd J is a legal setback for an irrepressible character to be sure. Meanwhile he has given SAM permission to publish his affidavit, at least the first 41 pages given there is another 392 pages of cross referenced annexures as well. There will be some legal vetting too and deletion of some names where necessary.
Following is first installment of the Diamond Diary:
My environmental and community credentials, and public interest in this litigation
2. I have been campaigning for protection of the conservation values of Tinda Creek which runs into Gibba Swamp, Wollemi Creek and the Colo River all in the Wollemi National Park for 24 years due to water pollution issues and now more recently over use of water resource and other environmental impacts. I am well known in the Tinda Creek area having supported various neighbours over the years including collective effort to fight bushfires in the area. For instance I co-ordinated the Seventh Day Adventist and Coptic Church helpers in 1994 – a very bad year for bushfire.
3. I know from direct observation that Tinda Creek runs into the Wollemi National Park and I understand it has been listed as World Heritage since November 2000. Refer material from NSW NPWS and Australian Heritage Database at annexure …2…
4. I know from direct observation that Tinda Creek runs adjacent to the sandmine site on private property at Lot 2 owned by Birdon – and in part by the Crown, and a useful corroboration of that is figures 2 and 4 in the Chris Jewell expert report for HCC of June 2007 which shows the close proximity of Tinda Creek to the edge of the sandmine which sits on the former wetlands feeding the creek. This report is at annexure …3.. Another good location map for Tinda Creek is the extract from the NSW Government Topographical map 1:25,000 of 1977 which shows where the creek was before the sandmine sitting on its watercourse now in 2008.
5. Since 1999 onwards I have been very worried about the combination effect of sandmining and prolonged drought and now in the last few years climate change impact on the water resource from Tinda Creek to
(a) this section of the Blue Mountains World Heritage Area (“WHA”) of Gibba Swamp, and
(b) other landholders in the area.
6. I have nothing to gain financially from taking this litigation that I am pursuing in this case. My motivation is the public interest in protecting the WHA and Tinda Creek waterway. I submit there are special circumstances to allow my case to go forward:
(a) being one of the very few people with the working knowledge of the situation in this remote location;
(b) with a genuine concern for Tinda Creek into the WHA; and
(c) the courage to stand up against the menaces and criminality I and other landholders nearby have encountered from the sandmine interests at Tinda Creek;
(d) that I can satisfy the legal tests for no order as to security for costs as outlined below in my affidavit under a separate heading.
7. I have a reference letters from peak green group The Wilderness Society with perhaps 20,000 members and Colong Foundation for Wilderness supporting my litigation in these proceedings. Colong in particular are highly respected for their dedication and expertise in relation to the WHA. Their founder Milo Dunphy was instrumental in promoting the World Heritage listing, as well as founder of the Total Environment Centre in 1973. Colong are cited in the Bibliography of the Australian Heritage Database linked to the website of the Australian Heritage Database, Federal Department of Environment, Water, Heritage and the Arts. Refer Annexure …2….
8. My agent informs me and I truly believe that he has spoken last week with Andrew Cox, Executive Officer for the peak green group NSW National Parks Association and that the NPA are “not happy with what is going on up there”. My agent also informs me and I truly believe he has spoken by phone to Tara Cameron with the President of the Blue Mountains Conservation Society and that she also is very concerned about any expansion of the sandmine affecting the water resources to that section of the WHA. Her email is attached at annexure …5…..
8A. Other neighbouring landholders are also worried about Tinda Creek drying up for instance xxxxxxxxx downstream of the sandmine on Tinda Creek on the west of Singleton Rd. Refer email correspondence at annexure …6…
9. I am also supported by my accountant neighbour Mr Aldo Crino at xxxxxxx who has provided me with pro bono support in the past, including use of his mailing address for personal security reasons. A letter evidencing his retainer is at annexure …7….
9A. I am similarly supported by my court agent Tom McLoughlin with a career back to 1992 in public service for the environment. He is working for me pro bono because he says this issue is so important to that part of the WHA. Tom’s mentor was Milo Dunphy from 1992 to 1996 until Milo died, and he has a zoology degree and is a solicitor in NSW on a restricted certificate, recommenced in 2006 having been admitted in 1990. His resume is attached at annexure …8..
10. My agent Tom McLoughlin also wrote a submission objecting to the 1996 sandmine development application for green group Friends of the Earth, refer annexure …9…. And he has had extensive correspondence with senior levels of then NSW Carr Govt about Tinda Creek around that time refer annexure …10..
11. My agent Tom McLoughlin is also owner and editor of the community news website SydneyAlternativeMedia established in January 2007 with about 20,000 pageviews per month readership. As further evidence of the public interest in this case he has written two web based articles outlining issues of public concern about the Tinda Creek sandmine operated by the Birdon entitled:
(a) 6 October 2008 “Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area?”
(b) 10 October 2008 “Misleading plan and letter by sandminer in threat to Blue Mtns World Heritage Area?”
A copy of both articles and record of readership figures are attached at annexure …11..
12. Other character references regarding my standing in the Hawkesbury community and public interest in this litigation include:
- Jackie Verzi, formerly public officer of Rapping Association Inc till it finished in 2006, now public officer of Hawkesbury Council Watch Inc
- Lydia Clare, Hawkesbury Spirtualist Centre
- Peter Waite OAM -
Refer Annexure 12.
13. Recently I celebrated my 60th birthday with a party of 20 at a local restaurant in Windsor, although I have been living out of the district at Turramurra for several years now.
14. I was brought up in a strict Catholic family and have been a spiritual person of a Christian non denominational approach for at least 20 years and including with Hawkesbury Spiritual Centre for 6 years as per the reference from Lydia Clare referred to above and more recently MOSAIC Community Church Hornsby for 18 months. MOSAIC stands for Multicultural One Stop Information and Assistance Centre and every Sunday without fail I help Korean Australians with cross cultural lessons, and various other people. I have also attended Midway Pentacostal Church at South Maroota 1996-2000.
15. I am not an educated person in the formal sense in part because I was diagnosed with a tumour in 1971 and spent 6 months in hospital and was lucky to survive, and why I limp to this very day. My education has all been in the general workforce as a truck driver, and music business with the Musicians Union and trading in cars and managing land. I probably have a theatrical streak from working for such big names in the 1970ies like ACDC, Dragon, Deep Purple, Manfred Man and many others. This lack of education has affected my ability to conduct litigation on my own behalf in the Land & Environment Court where I have won several and lost a few. I have relied alot on the flexibility in section 39 (1) of the LEC Act 1979 giving access to people like me as it reads:
“Proceedings in Class 1, 2 or 3 of the Court’s jurisdiction shall be conducted with as little formality and technicality ….. as the requirements of this Act …. permit”
I very much appreciate the help and patience given to me over the years by the Registry staff, Registrars and judges. I know I need more professional support in order to conduct public interest litigation efficiently and am making a lot of progress with that help in 2008. My goal in reality is to finish with this very case and then never return to the Land & Environment Court jurisidiction ever again and manage rock bands and do other ventures.
16. I am a pensioner in part because of medical problems with my spine, neck and back and I am primary carer of my 87 year old mother with whom I live.
My public interest environmental litigation credentials – successful cases
16. Contrary to the Birdon’s Grounds for the strike out motion at paragraph 1q and the compromised affidavit of Russel Byrnes dated …….. I have always had as my main concern the environmental protection of Tinda Creek, and Wollemi National Park, now a WHA:
(a) In 1994-95 I briefed my current court agent Tom McLoughlin who was then the Sydney City CBD based NSW Campaigns Coordinator for The Wilderness Society about a developer’s plan to install a big smelly water polluting mushroom composting ‘factory’ at Tinda Creek by Mushroom Composters Pty Ltd. It was located downstream of the sandmine at Tinda Creek, at the property known as the Slip Rails on Lot 5 at Mellong. The property is now owned by Uri Annin who is also an objector to the Tinda Ck Quarry today along with another downstream local landholder Danny Pullicin. Tom organised on my behalf in 1995 as a freelance organiser for a Wollemi Legal Fighting Fund supported by diverse green groups namely:
- Colong Foundation for Wilderness
- The Wildernes Society
- Confederation of Bush Walking Clubs NSW
- Australian Conservation Foundation
- Coalition of Hawkesbury & Nepean Groups for the Environment
- NSW Nature Conservation Council
- Total Environment Centre
- NSW National Parks Assoc.
We raised collectively about $15,000 from the Walkers and other local landholders, as well as an advert in the Sydney Morning Herald , to retain Bruce Woolf & Associates. Proceedings commenced in the Land & Environment Court as Diamond v Mushroom Composters Pty Ltd in 1995. The developer offered to buy me out at “market value” if I withdrew my objections and litigation. My valuation at the time was $260,000 for Lot 1 which I owned under mortgage. However when we had a meeting at their office at Ebenezer and they showed me the 3 km odour buffer zone into the national park I declined the offer. This knew this would be an illegal use of the national park. This is all evidenced on the HCC’s council file for that DA such as letter of 1/8/94 Mushroom Composters to Mayor Wendy Sledge at annexure 12A…referring to a buyout clause. I served the LEC Application to the LEC on the day the HCC were meeting to consider an approval. The developer withdrew the DA, and there were no costs ordered after all our expense and time. Refer the attached community campaign materials from that time at annexure …13..
(b) In about 1996 I also raised concerns about a large chicken farm in the headwaters of the Wollemi-Tinda Creek area at Mellong which development was still approved but greatly reduced in scale and does cause some pollution risk to the area to this day. Copies of relevant correspondence is at annexure ….
(c) In 1997 I commenced legal action as public officer of Tinda Creek Spiritual & Environment Centre Inc v Birdon Contracting Pty Ltd & Poyneed Pty Ltd & Hawkesbury City Council 10041/1997 against unlawful sandmining as referred to at 1.n and 1.o in Byrnes/Birdon letter of 9 Sept 2008 setting out their Grounds for the strike out motion attached at appendix ……. The settlement of that court action, with no costs order, was based on an agreed option to purchase my block of land back from Birdon which they bought in a forced bank mortgagee sale at only $130,000 when the property was valued at $ 260,000. The option was to buy back half my property for $65,000 plus subdivision cost plus interest. A local press report of that outcome is at annexure …14.. dated August 20 1997 in the Hawkesbury Gazette.
(d) Diamond v PF Formations Pty Ltd and Baulkham Hills Shire Council 10064 of 1998 (unreported), which included Brian Preston then as counsel for BHSC who literally wrote the book Environmental Litigation. This case was run efficiently by Bruce Woolf as solicitor and undisclosed principal Ken Dixon paid for him and the expert reports. This was a sand mining case at Maroota settled by consent, resulting in protection of the public’s Maroota Trigonometric Reserve and strengthened rehabilitation conditions. There was no costs order. Preston told our solicitor at one stage we “had some good stuff” in our evidence. Issues included protection of threatened species of flora listed by the NSW Scientific Committee. The decision is unreported on the internet however my agent’s copy of the final consent orders and Friends of the Earth media release are attached at annexure 16.. These proceedings were financed up to some $40,000 by Ken Dixon paying costs and disbursements of experts and lawyer Bruce Woolf, with pro bono research help of Tom McLoughlin then representing Friends of the Earth Sydney.
Picture: The infamous 30 metre deep so called surface road to nowhere sandmine at PF Formations Pty Ltd site, Maroota late 1990ies.
(e) I understand from conversations with current and former Mayors of BHSC John Griffiths and Sonya Phillips (who happens to be Ken Dixon’s cousin) and I truly believe it to be the case that as a result of our successful and expensive case in 1998 of Diamond v PF & BHSC 10064/1998, the regulatory officers at BHSC knowing it was financed by Dixon’s, initiated legal action to close them down as revenge: Cr Rasmussen of Hawkesbury City Council told me he was told of this revenge motive by Peter Lee as an officer with BHSC, previously HCC. I was not a party to that litigation but it cost Dixon’s about $100K and they lost and it had the consequence that Dixon’s sand mine was closed in 1999 at Maroota. It also cost them $6M in sales for that year. Dixon’s took their grievance/allegation about partial conduct in BHSC toward PF Formations to the State Govt ministers and hierarchy of the Planning Dept. Dixon’s were allowed to recommence mining in 2001 by the State Govt. This in turn brought great pressure on BHSC officers involved in the Maroota sandmine precinct with the following consequences :
- planning officer xxxxxxx who [allegedly] perjured himself in the 1999 litigation (BHSC v Dixon) forced to resign in around 2002 for improper use of council resources for a private consultancy
- xxxxxxx as special projects officer pressured to resign in late 2004.
- xxxxxxx the GM was told to resign or be sacked by the Minister for Local Govt in 2004
- xxxxxxx was also pressured to resign about 2004 for maladministration
(f) In 2005 I commenced legal action in Diamond v Birdon Contracting Pty Ltd, Poyneed Pty Ltd & Hawkesbury City Council in proceedings 40230/05, and Diamond & Kent v Birdon Contracting Pty Ltd, Poyneed Pty Ltd & Hawkesbury City Council 40430 of 2005 with another Applicant Peter Kent. Both cases were settled and – on the surface but not in fact - resolved by consent orders with all parties paying their own costs. This was yet another attempt to get some regulatory compliance discipline on the sandmine operation at Tinda Creek in the consent orders. There were no orders for costs. Regretably Birdon blatantly breached those consent orders as per my letter of 24 Feb 2006 to the GM of HCC and Russell Byrnes for Birdon Contracting (refer annexure …16….) so I commenced contempt proceedings which were not successful and are discussed further below. As part of the settlement of that case Birdon paid via his solicitor a total of $50,000. Initially they offered money without promising to fix Tinda Creek and I refused. Finally we agreed as I was a bankrupt to pay $40,000 to my son as compensation, stated expressly for past criminal events at Tinda Creek, with $5,000 to myself for my expenses in running the litigation, and $5,000 for Mr Kent for his expenses. In the Grounds dated 9 September 2008 served on me for this strike out motion there is significant reference to Mr Kent and Mr Richardson not attending court or revealing their personal details. The fact is they were too scared to given the vicious campaign of intimidation I have suffered from the sandmine staff and criminal associates. That is my sworn evidence.
(g) David Kettle Consulting [agent for Coca Cola Amatil] v Gosford City Council 2005, where Tom McLoughlin appeared for me as agent over a 2 day hearing. There was no order as to costs. The final judgement is reported on the Austlii website for 1 October 2008. In an interlocutory hearing Pain J gave me judgement on 4 July 2008 (refer annexure …17…) despite severe contest by both other parties to participate as an intervenor under the Double Bay Marina rule applying s 38 (2) of the LEC Act 1979. Evidence for my intervenor application included reference from registered charity (since 1981) Mangrove Mountain District Community Group Inc signed by Margaret Pontifix a local authority figure, retired science and agriculture high school teacher of 40 years (refer annexure 18..). My participation was only on a limited basis but as a result my agent and I with the support of the local community were able to seriously influence proceedings with several expert reports that I believe both other parties wanted to keep away from Commissioners Moore and Taylor in the main hearing:
(i) 170 page report of Dr Noel Merrick, UTS groundwater centre of 2006
(ii) the 33 page report of the CSIRO of July 2008 regarding climate change with major implications for future drought and extreme temperatures in NSW
(iii) Weatherzone report of driest month of May on record for New South Wales suggestive of a climate shift or change.
There were no costs orders in this case and the final decision of Commissioners Moore and Taylor leaned heavily on the precautionary principle regarding climate change which was bolstered by the contribution of my submission of expert evidence reports. Indeed I was the only participant to submit evidence on climate change issues because it appears Gosford Council were not up to the job. For instance the Commissioners in their judgement state [bold added]:
32 In response to a question in relation to ground water recovery rates, Mr Lane [single parties expert] confirmed that he had assumed a continuation of past rainfall and aquifer recharge patterns.
33 The most recent information published by the Intergovernmental Panel on Climate Change makes it clear that the validity of such an assumption is improbable. Recent observational data show that relative to the worst-case scenario model developed by the IPCC, climate change is occurring more rapidly and at a greater magnitude than anticipated. These recent significant upwards increases in climate change rates coupled with an inherent uncertainty associated with the limited temporal data elucidating the ground water-extraction relationship, direct us to consider the matter with caution.
34 In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237, [2004] NSWLEC 399, McClellan CJ made the following relevant observation with respect to the consideration of an appropriate level of caution in such matters:
113. In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79I(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.
114. Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.
[later in the judgement Commissioners Moore/Taylor go on to say:]
39 We do not express our conclusion in precise terms as being a response to the precautionary principle (and without undertaking a rigorous analysis of whether or how that principle should be applied to this operation in light of the totality of Mr Lane’s evidence). However, we have concluded, consistent with the approach inherent in McClellan CJ’s observation, that this approach is the appropriate balance after weighing up the evidence of Mr Lane and the Department’s past estimate of the volume of water capable of being extracted from the aquifer without damaging it [on one hand] and the broader scientific uncertainty about the extent to which climate change is highly likely to continue modifying rainfall and inturn impact potentially on the health and resource capacity of this aquifer [on the other hand].
I am proud of the result in the Kettle/Coca Cola Case because contrary to a report in the mass media (Sydney Morning Herald 4th October 2008 “Coke clear to pump extra water, court says” the community were quite successful in forcing CCA in the public interest to continue a further 3 years of trial conditions, which they greatly objected to. My agent has summarised the legal outcomes of the case in this legal article on SydneyAlternativeMedia website “Coke cola juggernaut hits corrugations: Pumping trial and risk continues until 2011, copy at annexure …19….
(h) Most recently in these proceedings Diamond v Birdon & HCC 40733 of 2008, I have been vindicated to date having stated for years to the HCC that the sandmine has lapsed consent for non compliance with their 1996 consent condition 4. This relates to failure to provide to the State Dept the details of “Erosion and sedimentation control devices” critical to the proper functioning of the waterway. This finding is contained in the Chief planner Owen’s report of 29 July 2008 at pages 43-44 and page 70 (refer extract at annexure …20.). I am further vindicated by the expert report by hydrologist Chris Jewell of June 2007 (refer annexure …3..) for the HCC finding that the final landform of a proposed 22 ha lake will reduce the water resource to the WHA by 37 to 53% (at middle of page 11 of the report) and this would be against state govt policy. The evidence from the CSIRO and Weatherzone in the Coca Cola Case regarding climate change as a major impact matches up with the expert report by hydrologist Jewell. The Jewell report was only obtained by the HCC in large part due to my lobbying to bring greater regulation onto the Birdon.
I attach the CSIRO and weatherzone reports at annexures …21… and 22.. as they are relevant to the strength of my case in these current proceedings as regards precautionary approach to drought/climate change future impact on Tinda Ck into the National Park and as such relevant to the orders I seek regarding the urgency of rehabilitation of the final landform of the sand quarry literally on the natural creek line (orders in the Application/Amended Application 8, 9, 10, 11, 12, 13). These reports of climate threat are also relevant to proposed order 20 for a new EIS subject to legal clarification by the court of whether s.96 modification can be designated development.
The NSW EPA have also written in 2007 to the HCC expressing concerns about the size of the tailings ponds at the sandmine causing excessive evaporation at point 10 on page 2 of their letter of 17 Sept 07 . The expert report is attached at annexure …..
(j) Additionally regarding the Kettle/Coca Cola Case I now have good evidence via a conversation with Margaret Pontifix secretary of the Mangrove Mountain District Community Group Inc, and farmer at Peats Ridge, that DWE licensing officer xxxxxxx xxxxxxx had solicited a bribe from her to obtain an increased water allocation around …2003…….. She gave sworn evidence on Sept 4 2008 making a general reference to this without naming xxxxxxxx as such to say the court should be wary of delegating future decisions to DWE. But in the car ride back to the northern suburbs on the night of 3rd Sept 2008 she was categorical it was xxxxxxxx seeking a bribe and I took file notes of the conversation. The significance for me is that xxxxxxxx was the licensing officer at Tinda Creek where clearly Birdon are using way more water than they are licensed to use as per the declaration I seek at paragraph 23 in my Amended Application in Class 4.
[Next installment of the Diamond Diary Part 2: "unsuccessful cases"]
| Picture: Dog rescue Trig Hill Area, Maroota late 1998. Community inspection discovers pet in distress mired in slurry pit of PF Formations Pty Ltd, Neville Diamond digging with hands.
Posted by editor
at 1:34 PM NZT
Updated: Wednesday, 22 October 2008 4:15 PM NZT
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