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15 Feb 2008 - Objection to Old Northern Road Quarry, Lot 196 Maroota, NSW

 

 

 

 

 

Lot 196, Maroota, 2007, from Statement of Environmental Effects at pp14-15, for Dixon Sands.

 

Date: 15th February 2008,

by email, by hand

To:       NSW Department of Planning, Major Projects (DOP)

            Ground Floor, 23-33 Bridge St Sydney NSW 2000

Attn:     Michael Young, Dept of Planning

CC: Minister Koperberg, Dept of Energy & Water

           

Dear Sir

Objection to modification – Old Northern Road Quarry (DA 250-9-01 MOD2) by Neville Diamond and Thomas McLoughlin

 

This submission is by Thomas McLoughlin as editor of www.sydneyalternativemedia.com, principal of ecology action Australia (unincorporated), and a solicitor in NSW, in his own capacity.

 

It is also a submission jointly and severally for Neville Diamond by Tom McLoughlin as his solicitor on a strictly pro bono basis in the public interest regarding ecological sustainability and due process.

 

The history of litigation by Neville Diamond while working for and/or in association with Dixon Sands (Penrith) Pty Ltd is outlined at Appendix A1.

 

Disclaimer: Neither Tom McLoughlin, nor any organisation he has worked for, or been a member of, has ever received any financial or in kind benefit or promise of benefit in a financial sense, in relation to sand mining at Maroota or anywhere, or in relation to Neville Diamond except to say trivial secretarial disbursements of tens of dollars. This statement is made as a legal practitioner in NSW and applies for all of the 1990ies to the present time.

 

Formality concerns with notification

 

#1

 

The objector Diamond has been notified of  a modification by letter of the Dept of Planning (DOP) dated 25th January 2008 “under “section 96AA of the Environmental Planning and Assessment Act 1979” (EPAA).

 

Refer appendix A.

 

 

However the Statement of Environment Effects (“SEE”) of Dixon Sands (Penrith) Pty Ltd ( “DS”) refers at page 3:

 

2.1 STATUTORY PROCEDURES AND APPROVAL PROCESS

In order to amend the development consent (DA 250-09-01) to increase the

number of truck movements at the quarry there are certain procedures

specified in Section 96 of the Environmental Planning and Assessment Act, 1979

(EP&A Act). Under Section 96(1A) of this Act the consent authority, in this

case the Minister for Infrastructure and Planning can agree to modify the

development consent if: [bold added]

 

We are not sure if anything turns on this incorrect (?) reference in the EPAA by the DS SEE.

 

#2

 

The SEE refers at page 2

 

PROPOSED MODIFICATION

Two modifications are requested to the conditions of development consent

DA 250-09-01. Consent conditions 3.30 and 3.31 are requested to be modified

in the following manner:

 

Existing Condition 3.30

Traffic and Transport Impacts – Total vehicle movements at the site, including


those provided for in consents 796/00/HE, 250-9-01 and 165-7-2005, shall not

exceed a combined total of 88 laden movements per day or 120 vehicle

movements per day.

 

Modified Condition 3.30

Traffic and Transport Impacts – Total vehicle movements at the site, including

those provided for in consents 796/00/HE, 250-09-01 and 165-7-2005, shall

not exceed a combined total of 180 vehicle movements per day.

 

We note that modification of the “2004 consent” for  DA 250-9-01

 

 (full reference  Diamond v Minister for Planning New South Wales and Another (No 2) [2004] NSWLEC 254 PARTIES :APPLICANT Neville Diamond/  FIRST RESPONDENT Minister for Planning New South Wales /SECOND RESPONDENT/ Dixon Sand (Penrith) Pty Ltd/ FILE NUMBER(S) :10206 of 2003 CORAM:Talbot J”)

 

has been duly notified by the DOP but the proposed modifications as described in the DS SEE  includes changes to two other consents not in the notice of the DOP of 25 Jan 2008.

 

This may well be ground for re notification to objectors of those other consents.

 

 

 

 

Threshhold legal submission DS are unlicensed, have not legally commenced ‘2004 consent’, lapsed ‘2000 consent’

 

 

Our submission is that the 24 May 2004 (250-09-01) consent  (“the 2004 consent”) via the Land & Environment Court to Dixon Sands (Penrith) Pty Ltd (DS) has not ever been lawfully licensed (as demonstrated below by reference to expert evidence of  Donges 1984 and 1989) prior to commencement of work for lack of:

 

  1. licensing under the Water Act 1912 NSW Part 5 (WA) for the  excavation in groundwater for the main storage pond on Lot 196, and
  2. licence for pumping from main storage pond, and
  3. licence for any other (eg portable) water pump(s) drawing of water (i.e. distinct from the bores that are licensed) including water used for dust suppression

 

which licenses were never obtained.

 

We submit that implicit in the 2004 consent conditions is that all lawful required licenses would be obtained prior to commencement.

 

Additionally and/or alternatively we submit that by clause 1.12 in the 2004 consent “Dispute Resolution” which reads:

 

Dispute Resolution
l.12 In the event that a dispute arises between the Applicant and a public authority other than the Department, in relation to a specification or requirement applicable under this consent, the Applicant shall refer the matter to the Director-General, and if not resolved, to the Minister, whose determination of the dispute shall be final and binding on all parties. For the purpose of this condition, "public authority" has the same meaning as provided under section 4 of the Act.

 

 

logically applies whereby the failure to obtain licenses should be referred to the Director General (DG) of DOP and the Minister of Planning because our submission is being made contemporaneously to the Minister for the Dept of Water & Energy (“DWE”) on the same basis of ongoing illegal unlicensed use of water, and breach of RFIA, for which DWE are duty bound to act upon given our notice by this submission.

 

(See also Appendix B regarding allegations of corruption by objector Neville Diamond dated 23 January 2008 in this respect, submitted to Minister Koperberg responsible for DWE – submitted to DWE?DOP but otherwise not published.)

 

In other words we submit the evidence (below) raises a constructive conflict between ‘another public authority’ (DWE) as per cl 1.12 above and DS over extended years of illegal unlicensed water use, and illegal unlicensed breach of the Rivers and Foreshores Improvement Act 1948 NSW (“RFIA”).

 

We submit it is not open to the DOP DG or DOP Minister (despite the assertions of finality over conflict resolution endorsed by Justice Talbot in the 2004 consent as per cl 1.12 above) to ex post facto facilitate ongoing illegality contrary to the Water Act 1912. This is a matter of separation of powers and supremacy of the Parliament over judicial decision making.

 

Indeed any person who facilitates ongoing illegality may well be guilty of an offence under the Water Act 1912 and subject to prosecution. Including the DG or Minister and we assume the Minister does not seek to go down that track. In any case we submit strongly that the neither the DG or the Minister for DOP should be in the business of rewarding illegality with an ongoing consent to modify, nor will it resolve a complaint to the DWE over failure to license extraction in groundwater, or breach of RFIA. In this respect we strongly submit that this is contrary “to the public interest” as per EPAA S.79C re evaluation.

 

The full 2004 consent is found here:

 

http://www.lawlink.nsw.gov.au/lecjudgments/2004nswlec.nsf/d1efd3b3c2f68e05ca256736001f37be/117a2f806592bd91ca256e9a001dc1bf?OpenDocument

 

and via DS website

 

http://www.dixonsand.com.au/legal_frame.htm

 

 

 

…………………………

 

We also question whether the 2004 consent has even legally commenced in the absence of the required licensing. It is well established authority that works done unlawfully (as demonstrated below) cannot count as commencement

 

“….work done unlawfully under the consent cannot count as commencement to prevent the lapsing of a consent under s.99 …” : Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243 at 263, per Stein JA.

 

Given use of the unlicensed main water storage as evidenced below is central to the whole operation of DS in its entirety it may be that the whole DS sand mine on Lot 196 has been tainted with illegality from the outset and failed to commence.

 

We submit it follows that for a development that has not lawfully commenced in full or part it is highly inappropriate for the DOP to provide any consent to modify.

 

………………………..

 

Similarly we note by the notice of determination dated 2nd March 2000 from Michael Watt Director - Planning Services, Baulkham Hills Shire Council (BHSC) for DA No. 796/00/HE – Lot 29/196 (“the 2000 consent”) at p11

 

“2.29 The proponent is to obtain all necessary operating licences and permits from all relevant public authorities including the Environment Protection Authority and the Department of Land & Water Conservation and details of which are to be submitted to Council prior to the commencement of on-site works.

 

Similarly we submit that the 2000 consent has not lawfully commenced  for lack of prior licences and permits and, further that the consent is even lapsed and out of time by operation of the Environmental Planning & Assessment Act 1979 NSW (EPAA):

 

“s.95(1) A development lapses 5 years after the date from which it operates.”

 

 

Our evidence of failure to obtain (groundwater) licenses for Lot 196 sand mining operation

 

Our evidence relates to lack of licensing under the Water Act 1912 NSW Part 5 (“Water Act) for the excavation in groundwater for the main storage pond on Lot 196, and licence for pumping from main storage pond, and licence for any other (eg portable) water pump(s) draw water (i.e. distinct from the bores that are licensed) including water used for dust suppression which were never obtained.

 

Ken Dixon as patriarch of DS vaguely acknowledged this state of affairs in the 1999 litigation between DS v Baulkham Hills Shire Council case no. 40130/98 & 10757/98 before Lloyd J as follows (extract Appendix C):

 

Q. [Counsel] Mr Dixon, I gather the company’s records would not allow us to tell what proportion of the water is ground water and what propotion is rain water?

A. No, it would not.

B. And you wouldn’t know – no testing or no assessment’s been made of that to your knowledge?

A. No.

 

In other words Ken Dixon does not contradict groundwater is in use but does not know to what degree. Nor would he want to know in case of the high degree of controversy that might lead to given the Maroota Groundwater Study underway since at least 1996 (as referred below) which might draw interest of public authorities to his sand mining operation.

 

So much for commercial discretion by Ken Dixon for DS: As we understand this covert attitude relates to the original excavation on Lot 196 in the 1980ies was on pretext of a “farm dam” thus avoiding Water Act 1912 licensing requirements. As so often seems to happen these “farm dams” are a cover for unlicensed sand mining extractive industry.

 

 

We can demonstrate that in fact DS had corporate knowledge as per their 1999 EIS

 

(full name “Dixon Sands (Penrith) Pty Ltd/ Extraction, Rehabilitation and processing of construction sands, Lots 196 and 29, DP 752025 North Maroota, NSW/ Southern Environmental Pty Ltd/ 15th February 1999  ” referred to as the “1999 EIS”)

 

of the intersection of the groundwater in the  “perched water table” as shown by Donges by Figure 3 in the “1984 EIS”

 

(full name  PF Formation/ Environmental Impact Statement/ Dam construction/ Portion 196 Old Northern Rd Maroota/ Collin C. Donges & Associates Pty. Limited/ February 1984”) .

 

The 1984 Donges Figure 3 perched water table at Lot 196 is at Appendix D. This Donges historical baseline data informs all the following environmental assessment documents re intersection of the groundwater including the current SEE.

 

This intersection of the ground water remains the reality despite assurances to the contrary in the 1999 EIS technical papers Appendix C5 – Groundwater Impact Assessment  quoting Lyall & Macoun Consulting Engineers states

 

“There is reported to be a spring that flowed in the existing tailings pond, the original depth of which is unknown. The current bottom level is approximately 170m AHD, well above the likely level of groundwater at 160 AHD plus. It is therefore expected that th excavation (by the previous operator) could have intersected the aquifer, but the resultant tailings placement (by Dixon Sand) would have now sealed the flow.

 

There are no other excavations on the site that are below 160m AHD.

 

The main storage dam has a current bed level of approximately 161m AHD. This dam is part of the original excavation on the site, carried out in the 1980s. The standing water level in DS No1 is 158m AHD, and is located immediately alongside this storage.”

 

[and refer extract at our Appendix H of the 1999 EIS.]

 

On the contrary, in the 1984 EIS Donges at Figure 3  (refer appendix D) shows the perched water table clearly breached by the excavation on 196. Further there is no way of saying vaguely in the 1999 EIS that tailings have “sealed” a breach of the water table. The clay fines are not water impermeable and we find this claim of the breach having been sealed as unproven and contrary to the precautionary principle. Also deceptive and misleading.

 

For instance gain in the “1989 EIS”

 

(full name “PF Formation/ Environmental Impact Statement Extension of Existing Extractive Industry Portion 196 Old Northern Road Maroota/ Collin C Donges & Associates Pty Limited/  exhibition period 22/5/89 – 22/6/89)

 

there are constant references to the intrusion into the groundwater on Lot 196 and surface springs in the area. Refer our extract at Appendix E. We specifically refer to p14

 

“Portion 196 is in a topographical low area and in the discharge zone of the regional groundwater flow through the Hawkesbury Sandstone aquifer and of flow in the perched aquifers formed by the deep weathering of this sandstone.

 

Groundwater springs are observed in creeks on the property and the area was originally swampy before the drainage occurred by the present excavation activities. Due to the wetness of the area the soils contain organic materials and clays, from chemical decomposition  of feldspars in the sandstone, which is in contrast to the leached white sand soils further up the gradient and above the water table.”

 

[bold added]

 

Indeed Figure 8 (at Appendix F) used by Donges in the 1989 EIS is very similar to Figure 3 in 1984 describing the perched water table.

 

We submit other indirect but still quite scientific evidence of unlicensed (WA) breach of the groundwater by the main storage pond will also be available: Breach of the perched aquifer can be tested and very likely will be verified by the calculation and reconciliation of the water usage involved in operating the sand mine on Lot 196 namely

 

(a)    pumping from the bores,

(b)   pumping from clean water pond

(c)    pumping from any other water sources onsite

(d)   evaporation losses from surface of the dam, stockpiles, land surface,

(e)    water needed for dust suppression

(f)     export of water offsite in the sand product (at around 10% industry standard)

(g)    as well as any surface water captured and used.

 

This calculation/information should be available for the water license(s) that have been obtained by DS for their bores.

 

We understand DS is licensed to use 60 MegaLitres but that processing of up to 495K tonnes of sand per annum strongly implies water usage of approximately 300 ML in gross exceedance of their bore license(s): This is by way of comparison with the ERM McCotter 1998 expert report into water usage of PF Formation at Trig Hill Area of 332 ML water usage p.a.. for 400K tonne sand per annum extracted. The ERM McCotter report on PF is at Appendix G for comparison.

 

DS and PF have similar sized sand washing facilities at Maroota but PF’s feedstock is of a lower quality to DS feedstock.

 

It becomes quite apparent where this extra unlicensed water is coming from – the groundwater inflow into the main storage pond via intersection with the groundwater – which therefore must be licensed under the Water Act 1912. Thus the whole house of cards and subterfuge is exposed by the historical Donges EIS 1984 and 1989.

 

In light of the compelling Donges historical evidence  in the 1984 and 1989 EIS via the evidence of both Connors and McKibbon in the 2004 consent litigation is similarly unsafe as to use/non use and intersection of groundwater on Lot 196:

 

Talbot J found on the limited evidence presented to him at that time:

 

 

 

Ground Water

 

57 Dan McKibbin is a Senior Natural Resource Officer (Senior Hydrogeologist) within the Sydney/South Coast Region of DIPNR. Mr McKibbin has been involved with groundwater resource matters for the Maroota Extractive Industry area since 1996. His evidence addresses groundwater resource management issues in respect to the Dixon Sand operations on lot 196. Mr McKibbin has visited and surveyed the site several times since 1996.

58 He says that the operational dams on the Dixon Sand site have not intersected the permanent water table level of the Hawkesbury Sandstone Aquifer. On the basis of the drillers completion record of a new monitoring bore constructed in February this year, he is of the opinion that no groundwater was intersected in the fresh sandstone to a depth of 10 metres.

59 There is a much deeper groundwater system in the Hawkesbury Sandstone that occurs below about 35 metres. It appears to Mr McKibbin that the water levels in the new bore are an artefact of the presence of the stored waters in the main storage pond, and the disturbed nature of the ground. In his opinion, therefore, the operational dams on Dixon Sands north Maroota site do not require licensing under the Water Act.

60 When it was put to him in cross examination that a blue colour in water is an indication of the presence of groundwater he replied that blue coloration of the water is a matter of the light reflection and that blue water is not necessarily groundwater.

61 Mr Kitto says that the groundwater monitoring regime proposed would involve monitoring groundwater levels monthly and quality levels every six months with the results published in an annual report and an independent audit taken every three or four years. In addition, spot checks would occur when the department’s officers were in the area or in response to complaints.

62 Mr Conners undertook an inspection of the site on 20 January 2004, which confirmed the existence of five monitoring bores and two production boors on the site as licensed.

63 As I have already said, in his opinion, all works intercepting groundwater on the site have been correctly licensed.

 

 

Water Licenses

 

64 In cross-examination, Mr Conners states that he is responsible for the approvals of groundwater and surface water licenses, including renewals and the issue of such licenses. He also has a role in liaising with senior management and preparing cases for objections received. When asked by Mr Diamond whether a system was in place to monitor the illegal use of water in the sand mining precinct at Maroota, Mr Conners told the Court that DIPNR renews licenses every five years, they respond to community complaints and concerns and “do their best” to follow those up as quickly as possible. He says that at present there are 13,000 licenses in the Sydney/South Coast Region and “there just isn’t the resource to be able to inspect these at renewal”. Mr Kitto nevertheless expressed confidence that the water licensing section of DIPNR has sufficient resources to “properly manage and run licensing, detection and monitoring in the Maroota sand mining precinct” [
65 In relation to complaints about unlicensed work involving surface water or groundwater, Mr Conners says that there is a compliance unit in every region and his department is now required to liaise with that compliance unit in relation to complicated complaints. In the first instance a water licensing officer would investigate that complaint and make a report.

 

 

 

We submit the compelling Donges evidence re intersection with the groundwater on Lot 196 is a damning contradiction of the evidence of McKibbon and Connors as to so called ‘no groundwater use’. Indeed we feel the Court and his honour Talbot J was badly misled. Word games about permanent, or deep, versus perched or shallow aquifers, appear to have been played out but the law under the Water Act 1912 Part 5 is quite clear that groundwater use must be licensed regardless.

 

(We find this deception highly resonating with the parallel phenomenon of the way the sand miner developer’s expert Carosone expert evidence was recently demonstrated by us re Trig Hill Area to mislead the stakeholders at Maroota as to the high degree of groundwater loss on the Trig Hill Area to the Taylor property, resulting from the PF Formation operations there: Regretably Carosene was refuted out of time by the Sullivan expert report in that situation, as per our submission to DOP January 31st 2008.)

 

Regretably the 1984 and 1989 EIS expert evidence was not available in the 2003-4 litigation because plaintiff Diamond was legally unrepresented and didn’t have the material to hand in a timely way. However it is wrong to say Diamond was the only concerned citizen at the draw down of groundwater of Lot 196. We are advised that in 2002-2003 the East Bend Community Group/Pat Swartz (patron Kevin Rozolli former NSW MP) wrote to DIPNR as forerunner of DOP, also greatly concerned about impact on groundwater at Lot 196.

 

Our evidence of lack of licensing under the Rivers & Foreshores Improvement Act 1948 NSW (RFIA)

 

Similar to lack of water licensing we also challenge DS to produce permit(s) with diagrams/supporting documentation under the RFIA allowing them to breach the 40 metre buffer zone of any creek on Lot 196.

 

The DS EIS 1999 Figure 3.1, 3.2, 3.3 (see appendix H) shows that creek lines described 1984 and 1989 (sourced from Donges for PF) then vandalised by 1999, have been destroyed in the last 24 years of the sand mining operation. Figure 3.1 of the current DS SEE August 2007 (shown above page 1, and below ) reinforces the greater vandalism of the creek line.

 

We understand part of the creek line destruction may/may not have received a permit under the RFIA in Fig 3.1 as “appropriate position of watercourse” but that no RFIA ‘3A permit’ has been obtained for the weir originally made of sand/cement bags which was later cemented over by Ken Dixon in the late 1990ies, under instructions by Baulkham Hills Shire Council (BHSC). We submit that DS complied with the demand of BHSC concern to fix a leak in the weir but that BHSC otherwise took no interest in the RFIA permit requirement which remained the legal obligation of DS to obtain.  We understand there is no RFIA permit to the present. If there is we call on DS to produce the license and publish it on their website as per the 2004 consent.

 

However no RFIA permit is presented as required by the 2004 consent on the DS website that we can identify at this stage.

 

 

 

Lack of DS website notification of licenses required for Lot 196 under 2004 consent

 

On the basis that these water and RFIA licenses are lawfully required we note the following highly suggestive situation:

 

As we understand as of 14th February the DS website lists at the “LEGAL” subheading at web address:

 

http://www.dixonsand.com.au/legal_frame.htm

 

the following:

 

Old Northern Road Quarry - Lots 196 & 29

         EPA Licence No.3916 [link]

         Development Consent 796-00-HE [pdf] (3.2mb)


Old Northern Road Quarry - Lots 1 & 2 extension

         EPA Licence No.3916 [link]

         Site Environmental Management Plan [pdf] (12mb)

         Final Court Judgement and Development Consent 250-09-01 [link]

         2006 Notice of Modification to Consent Conditions [link]

 

 

In the “2004 Consent”

 

 

 

by clause 1.11

 

1.11 Subject to commercial confidentiality the Applicant shall make the following documents available to the public upon request at the quarry site and Council, and shall post all documents on the internet, within 14 days of approval of the documents by the Director-General or relevant agency:
a) this consent and the existing consent;
b) any licences or approvals for the quarry obtained from Government agencies; and
c) all documents required under this consent, including environmental management plans, AEMR’s, and Independent Audits.

 

The Applicant shall ensure the address of the quarry internet site is publicised and freely available.

 

[bold added]

 

As best we can tell 14th February 2008 we cannot locate any existing permits or licences as required above on the DS website eg. RFIA, or water licences under the WA or Water Management Act 2000 if applicable or indeed other licences. We question whether they exist and call on DS to produce them to the public and the DOP.

 

Similarly we have perused this listing on the DS website legal page

 

Site Environmental Management Plan [pdf] (12mb)

 

which identifies “ANNEX D LICENCES” but there are no licences at this section of the document. Again we call on DS to produce the water licences and RFIA permits if they exist. We submit they do not exist and the Lot 196 sand mine is operating illegally.

 

We further investigated the “keeping informed” section of the DS website referring to Annual Environmental Management Reports (AEMR) (as per say cl.7.2 of the 2004 consent), and cannot find any presentation of licenses there as opposed to empty headings.

 

S. 79 C EPAA re public interest concerns

 

We note in relation to the demonstration non compliance with licensing of groundwater, or probably RFAI permits, and failure to rehabilitate that the modification should be treated as deserving of a new EIS as designated development. This is open to the DOP consent authority under S.79C of the EPAA

79C Evaluation

(1) Matters for consideration-general In determining a development application, a consent authority is to take into consideration such of the following matters as are of relevance to the development the subject of the development application:

…..

(e) the public interest.

 

 

 

 

Relevant factors to consider whether a modification is designated development requiring a new EIS

 

We submit that the increased number of trucks when combined with the non compliance with consent conditions justifies a new EIS for designated development, not just an SEE.

 

We refer to Schedule 3 clauses 35 and 36 of the Environmental Planning and Assessment Regulation 2000

 

Part 2 - Are alterations or additions designated development?

35 Is there a significant increase in the environmental impacts of the total development?

Development involving alterations or additions to development (whether existing or approved) is not designated development if, in the opinion of the consent authority, the alterations or additions do not significantly increase the environmental impacts of the total development (that is the development together with the additions or alterations) compared with the existing or approved development.

36 Factors to be taken into consideration

In forming its opinion as to whether or not development is designated development, a consent authority is to consider:

(a) the impact of the existing development having regard to factors including:

(i) previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and

(ii) rehabilitation or restoration of any disturbed land, and

……

 

[bold added]

 

 

In relation to non compliance by DS includes comprehensive failure to progressively rehabilitate. The images provided by DS in the SEE show almost total lack of rehabilitation from 1984 through to the present and this has only compounded the dust problem, as here:

 

1984 – shown in DS EIS 1999 at Figure 3.2

 

 

 

 

 

August 2007 – DS SEE – p14-15 image of Lot 196

 

 

 

In 1999 an Extractive Industry Report (“EIR”) of BHSC/Officer Peter Zadeian (“PZ”) was challenged by DS in the Supreme Court, and the result apart from local political controversy was that the court declined to prevent the EIR from going forward for the information of councillors. DS argued the EIR was seriously flawed. DS was closed down by BHSCon the strength of the EIR by PZ in particular for lack of progressive rehabilitation.

 

We understand SREPP 9 requires sandmining to be done in an environmentally progressive

 

We understand there has been little or no progressive rehabilitation on Lot 196 up to 2008. Indeed the feeling is that the DS could well be wound up at any time and avoid any rehab cost (beyond the inadequate rehab bond monies) in decades to come depending on how long it can obtain soft approvals and extensions.

 

 

Dust and noise impacts on local area

 

There is no wheel wash at Lot 196 operated by DS. The photo Figure 3.1 in the SEE shows significant sand deposits on the tar Access Road. With more trucks there will be more dust impact.

 

Wind comes sweeping up the plain such that cars get sandblasted. This material can cause dust silicosis over time.

 

We understand excess levels contrary to EPA guidelines affect the  school – refer PF Formation Annual Reports dust monitoring for around 2001-03.

 

The recent PF Formation Environmental Assessment showed an exceedance of EPA guidelines. Refer page 113 of the PF Formation Environmental Assessment Hitchcocks Rd 2007, involving averages over a month which hardly addresses particular days of prevailing westerly winds with much higher intensity:

 

One of the monitoring sites (Maroota Public School) is approximately 1,200 metres to the north, closer to other sand mining operations while the other two are on the boundary of the current operations but within the Hitchcock Road site itself. Maximum annual average dust deposition rates are above the criterion of 4 g/m2/month at all these locations, ranging from 4.4 g/m2/month to 4.9 g/m2/month.

 

 

 

 

We submit the truck increase should be rejected because the extra traffic compounds the dust problem.

 

We understand DS is licensed for 60 MegaLitres per year and they must be illegally accessing over that limit given the 500K tonnes per annum volume extracted, even allowing for comparatively higher quality sand (to PF Formation at Trig Hill Area, or 198 with high clay content).

 

Thus any additional water used for dust suppression will compound this exceedance of their water licence.

 

The images provided by DS in the SEE show almost total lack of rehabilitation from 1984 through to the present and this has only compounded the dust problem.

 

 

There is a right of way known as The Haul Road which allows extractive industry traffic to travel from Lots 1 and 2 on the northern side of Lot 117 and 196 through the PF Formation site at 198 and up various crown roads to Wiseman’s Ferry Rd. This right of way bypass’s the school. The traffic past the school is a major concern to students and teachers and families. If Dixon Sands with proposed increase in vehicles were to bypass the school there would be less impact.

 

This would also mean less noise on Mr Accurso which truck noise from DS exiting Access Road to Northern Rd exceeds the EPA guidelines.

 

We understand there is an agreement between DS and Accurso to accommodate these exceedances outside the planning legal framework. Presumably this agreement would need to be renegotiated for the greater noise and dust impact.

 

 

 

 

Excessive water usage contrary to Ecologically Sustainable Development principles

 

The minister is bound to consider principles of ecologically sustainable development as per the Anvil Hill and Sandon Point cases of the last year. Similarly we note SREP 9 paragraph 4 Ecologically Sustainable Development. Water usage has been highly controversial at Maroota at least since 1996, that is during otherwise higher rainfall periods which itself suggests some very excessive impacts on neighbour lands.

 

See for instance this govt brochure (copy at Appendix J)

 

marootagroundwaterstudy96.jpg

 

 

 

 

We also note the Director of DOP criteria for the EA inclusion of "The NSW Groundwater Dependent Ecosystems Policy" DLWC 2002, with reference especially to Management Principles at pages 21 -25 found via PDF file here:

 

In summary here: 

 

grwaterdependecosyst5principles2002dlwc.jpg

 

We are concerned that the five principles there have not been fully addressed and resolved in the SEE.

 

Water use

 

In relation to ESD as it applies to water resources we submit there has been a long history of unlicensed and excessive water usage by PF Formations and no doubt other sand miners in Maroota:

 

DS have dams never licensed under the Water Act 1912 or Water Management Act 2000

 

We note the past history back to the 1990ies of illegal pumps at Maroota indicated here by a gold star from past inspections by objector Neville Diamond. This indicates of culture of non compliance in the Maroota precinct:

 

illegalpumplocationsmaroota.jpg

Picture above:  Lands Dept aerial photo 1998 with gold star indicating unlicensed water pumps at various times over the last 20 years in Maroota:  Photo also visible in colour at this website http://www.sydneyalternativemedia.com/id158.html

 

 

We remain concerned that the SEE does not contain adequate water balance or water management plan and when combined with the history of illegal pumps as shown above we submit this is a recipe for massive over exploitation of the local water resources.

 

 

 

Failures of regulatory governance of the sand extractive industries in the Maroota District

 

The failure of local and state government local department)s) to strongly administer the cowboy sandmining industry at Maroota means that the sand is being sold artificially too cheap as low as $15 a tonne, delivered. This means there is no financial component in the price for rehabilitation externalising the impact to the future and probably the public purse, if ever.

 

We understand that statewide the Dept of Water Annual Report 2005-2007, 2006-7 p28 reports no prosecutions statewide for breaches of the Water Act 1912 in either year, only 2 penalties for the Water Management Act 2000 in 05-06, none in 06-07, and only 1 prosecution under the Rivers & Foreshores Improvement Act 1948. These low figures of enforcement are derisory compared with 90,000 ground water bores and 13 900 surface water licences according to the 06-07 Annual Report.

 

DS EISs have pictures of massive exposed areas contrary to best practise.

 

DS were shut down by BHSC in 1999 for bypassing their approved staging plan.

 

We understand two officers have been put forward as compliance officers for the DOP to monitor DOP consents of sandmining at Maroota. One of these officers is ex EPA and was in charge of all the previous monitoring under the BHSC consents. In the last 20 years we believe the EPA have not taken any meaningful action to enforce that environmental regulation. In particular we refer to the pitiful lack of concern by the EPA at the threatened smothering of now listed endangered ecological community (NSW Scientific Committee) adjacent to Lot 198 in 1996 as set out in the materials here:

 

1996 EPA unresponsive to threat of dam failures at Maroota from heavy rain

At http://www.sydneyalternativemedia.com/id173.html

 

 

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Signed:

 

Thomas McLoughlin, pro bono solicitor, objector                                             

 

 

 

 

And jointly and severally for Neville Diamond objector

 


Appendix index

 

A1. history of litigation by Neville Diamond while working for and/or in association with Dixon Sands (Penrith) Pty Ltd 1997 .

 

A. Notice from Dept of Planning (DOP) to objector Neville Diamond dated 25th January 2008 “under “section 96AA of the Environmental Planning and Assessment Act 1979” (EPAA).

 

B. Allegations of corruption by objector Neville Diamond dated 23 January 2008 in this respect, submitted to Minister Koperberg responsible for DWE.

 

C. Extract of evidence of Ken Dixon as patriarch of Dixon Sands vaguely acknowledges groundwater usage on Lot 196 in the 1999 litigation between Dixon Sands (Penrith) Pty Ltd v Baulkham Hills Shire Council case no. 40130/98 & 10757/98 before Lloyd J as follows

 

D. Figure 3 in the “1984 EIS” showing perched water table on Lot 196 (full name  PF Formation/ Environmental Impact Statement/ Dam construction/ Portion 196 Old Northern Rd Maroota/ Collin C. Donges & Associates Pty. Limited/ February 1984”) .

 

E. Extract of   “1989 EIS” constant references to the intrusion into the groundwater on Lot 196 and surface springs in the area,  full name “PF Formation/ Environmental Impact Statement Extension of Existing Extractive Industry Portion 196 Old Northern Road Maroota/ Collin C Donges & Associates Pty Limited/  exhibition period 22/5/89 – 22/6/89), referred to as “1989 EIS”.

 

F. Extract Figure 8 (at Appendix F) used by expert Donges in the 1989 EIS

 

G. Water usage comparative expert data at PF Formation Trig Hill Area June 1998 - ERM McCotter expert report PF Formation sandmining Maroota Trig Hill Area, Lot 198

 

H. The DS EIS 1999 Figure 3.1, 3.2, 3.3 showing that creek lines described 1984 and 1989 (sourced from Donges for PF) then shown as vandalised by the 1999 diagram,  as attached to technical paper Appendix C5 – Groundwater Impact Assessment  quoting Lyall & Macoun Consulting Engineers, in “Dixon Sands (Penrith) Pty Ltd/ Extraction, Rehabilitation and processing of construction sands, Lots 196 and 29, DP 752025 North Maroota, NSW/ Southern Environmental Pty Ltd/ 15th February 1999  ” (referred to as the “1999 EIS”)

 

 

J. Maroota Groundwater Study brochure 1996.

 

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