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?
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
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 1st July 2009. Justice Biscoe has decided 10th 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
- Why the s.96 DA is not the same development under s.96 (2);
- Why this s.96 DA is designated development under the planning rules for non compliance not because it’s already out of area;
- Why the EMP is seriously flawed;
- Why the draft consent conditions are seriously flawed
- Why Chief Planner Owens report and HCC is unreliable
- 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
- At p2, first line – Tinda was not intermittent 1981 to 1996, stopped flowing only once in that time in 1982.
- 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, 6th 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.
- 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.
- 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.
- 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.
- 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.
- On rehabilitation there is no schedule from now until 2021 unlike the approved plan with timetable included.
- On rehabilitation there is no change to a woefully inadequate $50K bond.
- On rehabilitation there is no mention of the EIS requirement of a maximum 30% of site disturbance rule.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.