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Outline of submissions on Coca Cola legal appeal to delete 66ML/YR Trial at Peats Ridge

[Filed and served on 25th July 2008 on Coca Cola Amatil at their Circular Quay office, and 1 for city agents of PJ Donnellan Solicitors of Gosford City Council.]
 

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

 

 

 

No. 10429 of 2005

 

 

 

 

DAVID KETTLE

Applicant

 

 

 

 

 

GOSFORD CITY COUNCIL

First Respondent

 

 

 

 

 

_________________________________

 

OUTLINE OF SUBMISSIONS OF INTERVENOR – NEVILLE DIAMOND

 

Pursuant to directions by Justice Pain 4th  July 2008

_________________________________

 

 

 

 

 

 

 

 

Filed on behalf of the Intervenor Neville Diamond

 

By his agent Tom McLoughlin, Ecology Action Sydney ABN 506 347 944 95

 

Address for service

C/- Tom McLoughlin, Ecology Action Sydney  Email: ecologya@wix.com.au

Tel. ......

 

 

A. Scope of orders for submissions

 

 

1. Pain J in her judgement 4 July 2008  in favour of Diamond’s intervenor status at paragraph 23 states:

 

“He has two conditions he wishes to put to the Court which the Council will not. ….  I consider I should make orders to enable him to participate in a confined way as provided for by a “Double Bay Marina” order under s.38 (2) of the Court Act. That will be limited to providing evidence to support the additional conditions he wishes to seek and making submissions on these to the Court. “

 

2. In  paragraph 23 Pain J states:

 

“ Any matters concerning the deletion of the condition in issue [the trial at 66 ML/YR extraction i.e. the “Trial”] must be presented [by Intervenor Diamond] through the Council.”


 

 


B. Comments by Pain J on Anthony Lane as choice of single expert

 

3. Pain J states in her judgement on intervenor status 4 July 2008 at paragraph 7 states:

 

“The Council substantially delayed notifying the objectors of the appeal as it should have [according to specific resolution of council 12 Feb 2008] until after the first callover in the matter (the Council admits this oversight).”

 

The General Manager of GCC asserts this was an “oversight” in writing [Diamond Affidavit p157, annexure AJ, letter dated 6 May 2008]  but the Intervenor does not concede it was merely an oversight on the part of GCC officer(s) to make way for Anthony Lane as CCA preferred single expert uncontested given the extensive high controversy and litigation in this matter.

 

Pain J states and we concur same paragraph:

 

“This resulted in a delayed application for joinder as a party so that Mr Diamond was not able to participate in the selection of the parties’ single expert”.

 

 

4.  Pain J in her judgement of 4 July 2008 goes on at paragraph 7:

 

“While there is no intention to seek to have another parties’ single expert selected a Sydney expert rather than one based in Melbourne would have been preferable. The impartiality of the expert should also be tested to see if he has done work for Coca Cola Amatil Pty Ltd which is the company behind the applicant for the development.”

 

4A. The prima facie bad faith of GCC (in collusion with CCA) in not notifying the community objectors in a timely way as per council resolution is further apparent in the short minutes of order signed by both parties’ lawyers dated 17 April 2008, at least 2 weeks before the community were notified by letter [Diamond Affidavit p20, annexure D, letter dated 29 April 2008] of these legal proceedings. The order of 17 April 2008 reads:

 

“If the Court has ordered that a parties’ single expert address any issue, no expert report addressing the same issue other than the report of the parties’ single expert may be relied upon at the hearing, without leave.”

 

This was in light of the known context of a very live scientific disagreement through the years of litigation over this site as to the nature of the complex multiple semi confined aquifer in Sydney sandstone substrate at Peats Ridge, which cannot be treated as monolithic or as large a water resource as previously.

 

C. Vigorous attempts by Intervenor/Agent to balance evidence provided to single expert Lane against systemic bias to approve increased water extraction

 

5. Diamond has sought to progress documentary evidence to single expert Lane regarding the Trial via the First Respondent (“GCC”) according to the order of Justice Pain to appoint GCC in effect as “gatekeeper” (per J Pain when she delivered her judgement).

 

6. At the hearing on 27th June 2008 re intervenor status Pain J requested a list of documents Diamond wished to submit to Anthony Lane who was nominated by

Coca Cola Amatil (“CCA”) - whom the Applicant Kettle represents – as the single expert. GCC also agreed to Lane. This list was submitted by the Agent for the Intervenor (“Agent”) by the due date 1st of July 2008.

 

6A. Similarly the Intervenor has met each other deadline including submission of evidence on 18 July 2008 (“the Evidence”).

 

7.  At the judgement allowing Diamond as Intervenor on 4th July 2008 solicitor Byrd acting for GCC provided a letter to our Agent listing the following documents Council agreed to provide to Lane based on the Intervenor’s list filed and served 1st July 2008:

 

A.     Water sharing plan (if released)

C. Alkativ [sic] and Merrick report

C1. Questions drafted by Hydroilex

C3 and C4. ERM report of Sept 2004 [Evidence pp173-176]

C5. ERM report of October 2003 [Evidence pp185-197]

D2. Brink Report [Evidence pp 171-172]

J. LEP 381

K1. General Terms of Approval and Conditions of consent. “

 

 

8. In the hearing of 4th July 08 barrister Fraser for GCC sought to reduce the list given to the Agent  (also dated 4 July 2008) after private discussions with CCA’s barrister Eastman. This was despite protests by the Agent to the effect GCC were strangling the contrary evidence available to Lane.  Fraser then submitted that the reduced list of documents constrained by CCA would go to Lane the following Monday – 7th July 2008.

 

9. According to our notes of the hearing GCC and CCA both agreed inter alia to the Alkhatib/Merrick Nov 2006 report going to Lane by the next Monday 7 July 2008.

 

 

10. On 9th July 2008 solicitor Byrd for GCC confirmed by email an unspecified bundle was forwarded to Lane in these terms:

 

“The materials which both parties agreed to at Court last Friday have already been forwarded to Mr Lane.”

 

 

11. On 10th July 2008 the Intervenor wrote to Byrd/GCC referring to various documents about climate change intensification, and record deficit of rainfall in May 2008 at Mangrove Mountain for consideration for Lane [refer page 21 Evidence and following 22-28].

 

12. On 10th July 2008 in the same email we also asked whether the full 170 page report of the Alkhatib -Merrick report of November 2006 had been provided to Lane which  question has not been answered directly by GCC’s lawyer to date.

 

13. There is confusion whether several documents referred to in paragraph 7 above were in fact supplied to Lane by GCC’s lawyers. The Intervenor’s Agent wrote to Byrd for GCC on 10th July 2008 asking “Please let me know specifically the list you have actually forwarded to Mr Lane. “  We have not received any formal clarification from GCC’s lawyers.

 

14.  Late Thursday 10 July 2008 the Agent was notified that the Green Folder with unique documents requested and used in at least in part by Moore C to justify the Trial was relocated. It was returned to its owner Margaret Pontifix, Secretary Mangrove Mountain District Community Group Inc (“MMDCG”) by the Court Registry the next day Friday 11th July 2008. We are advised it was this submission that caused Moore C in Sept 2005 to remark from the bench to the effect of:

 

'Your community evidence makes me concerned/hesitant to approve this without a trial. I'll have to think about this some more.' : Commissioner Moore, from the bench in the hearing of David Kettle Consulting [agent for Coca Cola Amatil] v Gosford City Council and Azzopardi et al 10429 of 2005

 

 

15. On  Monday 14th July 2008 the Agent requested extra time by email from the other parties to identify documents for Lane given relocation of the Green Folder of documents misplaced by either GCC solicitor, LEC registry or someone for 2 and a half years, and another box of documents provided to the Agent as follows:

 

At this initial stage we can advise the Green Folder materials contains a map endorsed by senior officer of the Gosford Wyong water authority as to the water supply bores they rely on from Peats Ridge/Plateau. It contains rainfall records for the district. It contains probative original scientific survey of groundwater dependent ecosystems (flora) by science teacher Pontifix that have withered and died out over the last 20 years due to lost springs in the district. The folder contains a topographical map, and aerial photographs from 1980 until 2004 of the subject land and district. We submit these are properly materials that should go to CAE Lane in the normal course of case management.

 

We are also recently in receipt of the box of documents only on Saturday 12th July 2008 referred to as no.s 1-32  by us and Mangrove Mountain District Community Group's Margaret Pontifix in our list of 1July 2008 (submitted before our status as party/intervenor was resolved and thus an expanded list of documents). Given the court's determination to focus on the trial condition and constrain documents to that or the two extra conditions proposed by us the extra time to 21st July will give the intervenor the opportunity to properly filter that box of 32 items (about 18 inches thick).

 

16. CCA responded by email the same day [Evidence pages 31, 33-35], copy to Byrd/GCC opposing any delay in the timetable. Our  Agent decided to take two weeks unpaid leave from his day time job the same day to progress this pro bono case according to the formal timetable.

 

17. On 15th July 2008 the Agent provided a web link to Byrd/GCC and solicitor for CCA of the probative ‘Green Folder’ documents we wanted to refer to Lane:

 

Tuesday, 15 July 2008

Coca Cola Water Bottling Case: Mystery Green Folder found with critical evidence for court expert Lane
Mood:
 a-ok
Topic: legal

 

At http://www.sydneyalternativemedia.com/blog/index.blog/1827345/coca-cola-water-bottling-case-mystery-green-folder-found-with-critical-evidence-for-court-expert-lane/

 

18. On Wednesday 16 July 2008 Byrd for GCC wrote to insist any slippage in the timetable for identifying documents to Lane must be by notice of motion to the court thus exposing the Intervenor to the risk of a costs order for both parties’ barristers and solicitors if the motion failed. We submit this was always the tactical intention of both major parties to run up the financial exposure of the Intervenor to prevent meaningful participation as per the exclusion from choice of single expert in the case in breach of council’s express and direct resolution of 12 Feb 2008 (refer our paragraph 4, 4A above).

 

19. On 16 July 2008 the Agent wrote to GCC’s Byrd [refer Evidence pages 19 -20] including these materials:

 

6th July 2008 Minister for Agriculture, Fisheries and Forestry -  Transcript of press conference Subject: Drought Report, Sydney regarding new CSIRO report indicating extreme drought to increase from 1 in 20 years to 1 in 2years

 

- 31 May 2008 Weather News - Driest May on record for Sydney - Weatherzone quoting meteorologist Matt Pearce of the Weatherzone.com.au organisation includes specific mention of Mangrove Mountain

 

 

20. Some guidance as to documents actually provided to Lane is possible via Mr Lane’s own report (only available from 23 July 2008 due to Registry staff shortages, via GCC solicitor Byrd by post) at section 3.1 and table 3 which refer to ‘the key documents’. A full list of the document registry is found at Appendix B 

 

21. Lane’s Appendix B indicates the Alkhatib-Merrick report of Nov 2006 of some 170 pages was only provided to LanePiper on 14 July 2008 not the 7th of July as suggested by Mr Fraser for CC before Pain J on 4 July 08.

 

22. The Alkhatib Merrick report was thus only received 4 days before the final report was signed off. We understand this time is quite insufficient to analyse the assumptions and complexity of the report by usual work standards - pers. comm. Adjunct Professor Brian Marshall to Intervenor Agent 24 July 08.

 

23. The Lane report indicates he was not provided as agreed before Justice Pain by GCC lawyers on 4th July 2008, the DWE Available Water Determination of 1st July 2008 found here (pers. Comm. DWE officer Hemantha DeSilva 24 July 08)

http://www.wma.dnr.nsw.gov.au/wma/DeterminationSearch.jsp?selectedRegister=Determination, nor the Brink Report or the Hydroilex letter (refer our paragraph 7 above).

 

24. In email correspondence of 18 July 2008 GCC’s lawyer Byrd wrote to the Agent declining our documents within the Green Folder, or other documents, be provided to Lane. This includes some documents Mr Fraser for GCC said 4th July 2008 to Pain J would be provided. Byrd wrote:

We refer to the documents submitted to us by email and web link on 15 July 2008.  We advise that our instructions from Council are that whilst Council considered the documents would not be of great relevance or assistance to the parties’ single expert, that Council would not oppose these documents being submitted.    As you are aware, however, Mr Lane is a joint expert whose costs are being met by both parties and we, therefore, must also have the consent of Coca Cola to the provision of the documents.

 

We are advised by Coca Cola that due to the lack of relevance and the additional time factor that the submission of these documents will involve, that they oppose the provision of them to Mr Lane.  We will, therefore, not be submitting the documents to Mr Lane for his consideration. 

 

We note that we have also received a number of links to other documents since that date.  A number of these documents were links to newspaper articles.  It is our view that newspaper articles are not of a sufficient quality of document to submit to the expert.  Such articles are second hand accounts of matters and include interpretation by the journalist and we are, therefore, of the opinion that it is not appropriate for these to be forwarded. 

 

In relation to the further documents submitted today, we are again of the opinion that the documents are not directly relevant to the parties’ single expert’s role in these proceedings.  Some of the documents contain general information and information regarding the aquifer system in the Blue Mountains.  It must always be remembered that Mr Lane is a highly qualified expert in his field and it should, therefore, be assumed that he has an awareness of the general issues and the background in his area.  There is also, of course, an issue of time in relation to these documents. 

 

D. Evidence probative of need for continuation of Trial

 

25. Contrary to the spin from GCC’s lawyer at paragraph 24 we say that key documents not addressed by Lane re climate change, future water resource and healthy aquifer include:

 

  1. The analysis of the complex semi confined multiple aquifers of Sydney Sandstone (which applies equally at Mangrove Mountain and the Blue Mountains) by such as Adjunct Professor Brian Marshall in correspondence to Mangrove Mountain District Community Group Inc and his brochure Groundwater: lifeblood of the environment,  [found at pages 98-123 Evidence]
  2. CSIRO report released in July 2008 that predicts drought – experienced at a rate previously 1 in every 20 years - would now occur in Australia once every 2 years as a result of climate change, as referred to here 6th July 2008 Minister for Agriculture, Fisheries and Forestry -  Transcript of press conference , Subject: Drought Report, Sydney
  3. a meteorologist expert report regarding the month of May 2008 being the driest month ever on record at Mangrove Mountain and indeed NSW [page 21 in the Evidence]
  4. The Pontifix 2005 ‘Green Folder’ submission of such interest to Moore C in 2005 including
  • aerial photographs requested by Lane at his 2006 site inspection as desirable,
  • NSW Govt map 1980 of the permanent watercourse prior to water bottling operations
  • comments of Adjunct Professor Brian Marshall contrary to Dr Merrick’s view of a monolithic aquifer in Sydney Sandstone at Mangrove Mountain
  • study of lost flora on permanent watercourses at Peats Ridge and Mangrove Mountain
  • schematic of the Gosford Wyong water supply reliant on Mooney Mooney Creek signed by the local water authority Headworks Coordinator
  • refusal by DWE of increased water extraction for local farmers in 2005 while CCA were granted their increase.

 

We understand it was in response to these materials that Moore C during the 2005 hearing for the original consent remarked put him on a course to order the Trial condition(s) in the first place. The Green Folder material is at pages 76 to 123 of the Evidence.

 

  1. Conclusions of the Brink report of 1996 generated for former owner Livio Pace of the PRS site which clearly indicates interaction of bores across the boundary line CCA to Azzopardi property at only 8 ML/YR rate of extraction;
  2. The DWE new determination regime under the Kulnura Mangrove Mountain Water Sharing Plan issued in early July 2008 and advertised in local newspapers. Byrd for GCC in the letter of 4th July 2008 agree to provide Lane with  “A. Water sharing plan (if released)”. A new regulatory determination system was released in early July 2008 but the Lane report of 18 July does not refer to this document. Found at this link http://www.wma.dnr.nsw.gov.au/wma/DeterminationSearch.jsp?selectedRegister=Determination

 

As best we can discern all of these documents have been excluded from consideration in the Lane report. And we understand the Alkhatib-Merrick Report was not forwarded to Lane on 7th July 2008 as advised would happen to Justice Pain but only on 14 July 2008 being insufficient according to Lane himself for proper independent analysis.

 

E. Unreliable report of Lane given reliance on Merrick and Beck

 

26. Lane in his report refers to personal consultation with Dr Merrick but fails to consult other lead author Alkhatib. This is too narrow.

 

27. Merrick in particular has shown himself to be in the shadow of CCA financial influence by effectively promoting a CCA funded water study into the Kulnura Mangrove Mountain Water Sharing Plan (“KMMWSP”) area at Peats Ridge, which would be work by him or his academic group (NCGM) financed by CCA. This is the subtext to the letter Lane adopts written by Merrick to the open press at Appendix C of the Lane Report  [also found at page 42 of  the Evidence]. This potential conflict of  financial interest has been apparent since the letter of Alex Wagstaff, Director of Corporate Affairs CCA to Mangrove Mountain District Community Group Inc (“MMDCG”) dated 12 May 2006 (at page 52 Evidence) to quote:

 

“we are preparing a community monitoring proposal for the Peats Ridge area under which we would fund the installation and maintenance of equipment to monitor water extraction levels in the area. We would need the co-operation of water users, which may include some members of the Mangrove Mountain Districts Community Group, to allow installation of such equipment on their bores.”

 

28. Compare Wagstaff language with Merrick’s open letter to the press of 5 May 2007 (“Merrick Letter”) [Evidence p42]  [bold added]

 

There is a popular misconception that Coca Cola Amatil’s (CCA) water bottling business at Peats Ridge is to blame for all environmental impacts. This does not stand up to logical scrutiny. First if there is an effect, it will be localised. Second, the volume of groundwater pumped by CCA is no more than 2 or 3 percent of all the groundwater pumped from the aquifer. We know how much CCA pumps, but we do not know the total amount pumped by everyone else because there is a puzzling reluctance to allow meters  to be installed on bores. The aquifer will never be able to be managed properly unless we know how much water is being used, where it is being used, and how the groundwater levels respond to pumping.

 

A proposal was put to the community meeting [3rd May 2007] for a pilot research study that aims to clarify “cause and effect” to the satisfaction of all stakeholders, through focused metering., monitoring, data analysis, consultation and education. I trust that the findings of the UTS study might assist the community in their deliberations.”

 

Dr Noel Merrick, Director, National Centre for Groundwater Management, University of Technology, Sydney 5 May 2007 to Central Coast Express Advocate

 

29. The Merrick Letter is in stark contrast to the more accurate interpretation of his co-authored study in the local press [Evidence pages 43-45 eg Allocations wring mountain dry p6 24 January 2007, at p45 of the Evidence, from Central Coast Express Advocate]  based on Merrick’s own findings of significant over allocation,. To quote Merrick’s co-authored study [bold added]

 

"Using 10% reduction in baseflow as an example, it appears that the sustainable yield in the Water Sharing Plan area is about 3,000 ML/year on average, but it can average from less than 1,000 ML/year in a dry year to more than 5,000 ML/year in a wet year. This compares with the current plan figure of 8,000 ML/year.

 

For the other catchments outside the Water Sharing Plan area, the sustainable yield is around 9,000 ML/year on average. With seasonal variations, the sustainable yield can vary from about 2600 ML/year in a dry to about 11,000 ML/year in a wet year."

 

 30. It is for this very reason of over allocation that DNR (formerly DIPNR, now DWE) write 6 April 2006 to GCC [Evidence pp46-47] to oppose removal of the safety level completely as sought by CCA, subsequently relaxed 5 metres with Lane as expert in the 2006 Trigger Case.

 

31. In this regard we note views of GCC solicitor Donnellan of 6 April 2006 to solicitor for neighbour of CCA [Evidence pp56-57]

 

The historical data upon which Dr Beck made his initial predictions have now been augmented by the plummeting of the water table to the 10 metre level out of which these proceedings [2006 Trigger case] arise. It seems to us that the historical data now tell us that it is possible in circumstances which are not precisely defined but are only described as “an outside force” that the water table can drop rapidly, at least as measured in the monitoring bores to that level which was previously considered the point below which access to water by the Azzopardis might not be available, or at least readily and reasonably available.

 

3. It is simply unknown what level the water table might ultimately go down to when subject to this external force, coupled with the extractive operations of Coca Cola. To allow Coca-Cola to continue to extract from its wells bearing in mind that they go down somewhere in the order of 70 metres, when the outside force is causing the water table to drop , would lead to unknown consequences for the Azzopardis. These are consequences which , it seems to us, the Court Appointed Expert [Lane] could simply not predict.

 

We submit the same lack of certainty applies equally today regarding the external unknown probably unlicensed water extractions in the Peats Ridge area such that CCA is already in the over allocation paradigm.

 

32. Similarly local knowledge is that the Central Coast was in its 10th year of below average rainfall in 2006 [Evidence pp48-49, 125-126] and that local quarry use of water is unlicensed [Evidence p124, 132-141] and

 

33. Similarly the local Catchment Management Authority with coverage of the Mooney Mooney Creek listed [Evidence pp50-51] under “Threat: Groundwater extraction in headwaters/ Very large scale for Coca Cola Company”

 

34. We are advised that Dr Merrick is not a hydrologist by training but rather a computer modelling expert and thus cannot genuinely provide advice on environmental/aquifer impact beyond his computer modelling expertise. For instance he cannot advise as per his Letter below on CCA impact on hydrology nor shift 10% to 30% reduction in baseflow with any credibility (as per Lane report below).

 

35. There is extreme scepticism amongst the farming community in the Peats Ridge area about the objective science behind the allocation of water to Coca Cola as per minutes of the public meeting with CCA’s Dr Beck in March 2006 [Evidence pp58-66, and refer also John Madsen submission to Moore C at pp 127 to 130]

 

36. The result of the 2006 Trigger case to only allow a safety level increase of 5 metres from 10 to 15 metres rather than unlimited (as sought by CCA) - after plummeting water table - effectively discredited the advice of ex DIPNR officer Dan McKibbin [letter 9 August 2005 in Evidence p 143] that “existing bores have negligible connectivity or impact on flows in the surface watercourse at the [PRS] property.”

 

37. There has been a disjunct between local knowledge and dominant policy approach taken by government and the court – the latter applying a simplistic monolithic aquifer approach to justify claims of a huge resource in the complex Sydney sandstone semi confined multiple aquifer situation. [Evidence p143 to 167] . The local council water authority with the pressure and responsibility to protect the local water supply have been far more cautious as per their opposition to the 66 ML/YR increase in extraction to begin with [Refer their submission 12 Feb 2005 at page 156 of the Evidence]

 

38. We submit that out of Dr Merrick’s own words in his Letter he admits there are no figures for “total amount pumped” at Peats Ridge aquifer and yet in a tendentious a priori way he claims to know what percentage of that unknown figure is CCA’s fraction of extraction at only “2 or 3 percent”.  The problem for Merrick is that even on his own terms and even at only 2 or 3% for CCA (which is not conceded) it may well be compounding an existing over allocation.

 

39. Merrick is obviously keen to implement further study at Peats Ridge financed by CCA even to the extent of employing CCA’s rhetoric about community based monitoring programme. This is potentially an abuse of one’s academic position to play the tune of one commercial stakeholder – CCA - in order to beg for work at the expense of other community and commercial stakeholders using water to grow food as opposed to the luxury indulgence of bottled water. Quite wisely the MMDCG have stood off the CCA duchessing approach.

 

40. This perception of Dr Merrick touting for research funding from CCA is understood in the sector. For instance [Evidence pages 40-41 at p41] George Gates, Groundwater Manager DWE dated 1 June 2007 states to MMDCG:

 

“It is not unusual in these circumstances for individuals or enterprises to get together and discuss possible solutions to managing local impacts. In this instance it appears to involve localised investigations by Coca Cola Amatil. I am unable to comment on the utility of such activity until the project objectives  and project plan  are available. I would however be surprised if the proposed investigation were to encompass the entire Water Sharing Plan area and issues. Certainly I am unaware of any approach to government for a collaborative approach to the funding of management of the aquifer that encompasses this Water Sharing Plan area.”

 

 

41. Out of Dr Merrick’s own words in his Letter he admits to quote [bold]:

 

but we do not know the total amount pumped by everyone else because there is a puzzling reluctance to allow meters  to be installed on bores. The aquifer will never be able to be managed properly unless we know how much water is being used, where it is being used, and how the groundwater levels respond to pumping”

 

This is an eloquent unintended summary by Merrick of why the Trial should continue not be deleted, and why the Trial is unresolved or indeterminate at this time.

 

42. We refer to our correspondence to Hemantha De Silva of Hunter DWE dated 29 June 2008 raising the question of unlicensed, unmonitored extraction by quarries in the Peats Ridge, Mangrove Mountain area, starting at p3 and at p5 of the Evidence and following:

 

“We [are advised] there are 40 quarries in the Mangrove Mountain area with uncertain water extraction involved. From experience we are aware that two sand mines in Maroota - PF Formations and Dixon Sands each extract around 300 ML/YR. If there are 40 quarries extracting anything like that level at Mangrove Mountain we are quite alarmed at the level of unsustainability.

 

We see this as feeding into and only compounding the concern above about bulk export of water by Coca Cola into the future as an expanding business like water bottling has expanded.”

 

DWE have failed to respond to this enquiry to date. This suggests the DWE officer should be called to give evidence as to the level of unlicensed over allocation in the PRS area already, and other matters (below).

 

43. We refer to  Community Environment Network discussion paper 20 Sept 2005  at pages 132-141 of Evidence, in particular tables at p137 and 139 and 140 regarding estimates of unlicensed quarry water usage in the Mangrove Mountain area.

 

44. By consulting and cross referencing Merrick’s Letter, Mr Lane appears to have similarly tainted his independence from CCA via Merrick.

 

45. The Merrick Letter is only received by LanePiper on 18 July 2008 as per Appendix B document register on the same date as Lane’s report 18 July 2008. This suggests quite a rushed job by LanePiper failing to get across the 170 page report such that Lane has been forced to adopt co-author Merrick’s open letter as a convenient summary, with all the flaws and compromises inherent in that letter:

 

    1. Unknown fraction of CCA extraction at 66 ML/YR, and:
    2.  great deal more study needed to know “how the groundwater levels respond to pumping”. We concur with this part of Merrick’s letter provided the study is independently designed and funded.

 

 In the absence of reliable data, deletion of the Trial would be highly irresponsible.

 

 

46. We note that Lane obtained a Master of Science (Hydrology) from the University of London in 1981, while David Kettle as agent for CCA has a BA (Hons) Geography, University of London, as well adviser to the government in British Columbia. We will seek assurances that Lane and Kettle have an independent professional relationship in their past working lives. Similarly Lane vis--vis Beck.

 

 

47. Lane has shown himself to be potentially compromised by having private discussions with CCA’s Dr Beck in 2006 as per the correspondence by emails found at pages 54 and 55 of the Evidence. Lawyer Donnellan for GCC calls such private communications “imprudent”. Mr Lane says he “would find it most helpful for him [Dr Beck] to explain some aspects of his reports during this journey”. This is suggestive of CCA’s Dr Beck having excessive access and influence to Lane the independent expert.

 

48. Mr Lane’s CV is quite weak regarding analysis of the complex semi confined multiple aquifers of the Sydney Sandstone complex, and much more related to water contamination issues.

 

49. It is noteworthy that Lane’s Report relies on the work of Dr Beck in substantial measure. In his judgement of Sept 2005 Moore C at paragraphs 40- 47 of  29 September 2005 declined to find for Dr Beck over surface versus spring source of water in the creek at PRS Pty Ltd. Beck’s evidence is directly contradicted by community witness Margaret Pontifix, science teacher of 40 years and local authority figure as secretary of MMDCG Inc. Rather Moore C side stepped the controversy. The statements by Dr Merrick above quoted and analysed at paragraphs 28-43 of these submissions just add to the uncertainty of Dr Beck’s previous evidence and approach.

 

50. Expert hydro geologist Adjunct Professor Brian Marshall sternly warn against [at page 102 of the Evidence]:

 

“The emphasis on the Water Sharing Plan whereby total recharge, less dedicated allocations, leaves a remainder for exploitation is horrifying in its simplicity. It disregards assumptions made about recharge, groundwater flow-rates with the ‘aquifer’, the veracity of ‘allocations’, the overriding impact of climate change, and the need for thorough evaluation of more local issues.”

 

Marshall points out that at Mangrove Mountain as in the Blue Mountains Sydney Sandstone contains complex multiple semi confined aquifers that may be connected vertically and/or horizontally and often with different permeabilities and flow rates and cannot be treated as monolithic. He agrees with this Agent’s crude description that at Mangrove Mountain the aquifer is more like Swiss cheese than a bucket or bathtub. He agrees that drilling deeper may not provide more volume of water depending on the location of narrow underwater streams.

 

F-1. Need for an express consent condition against export of bulk water tankers

 

51. As per our correspondence with DWE [Evidence pages 3-18] we submit the Moore C Trial regime when taken in due context of all subclauses of clause 1 of the court consent of 2005 implies a ban on bulk export by condition 1D incorporation of cl 1.5 of DWE General Terms of Approval of water licence, as well as by the 11ML/28 days rate limit in consent condition 1A.

52. We refer to page 1 of the Evidence regarding neighbour Azzopardi observation of bulk water tankers leaving the CCA PRS site from February to June 2008 averaging about 3-4 a day, five days a week.

53. Moore C decided in September 2005 [bold added]:

 

57 For reasons discussed with Mr Tomasetti during the hearing, I also consider that there should be a restriction on the amount of water extracted in a nominated shorter period – say twenty-eight days – to ensure that there is a degree of regularity in the extraction but with sufficient flexibility that a degree of variation in demand for product can be accommodated. The condition will, therefore, be to the following effect:

For the purposes of ensuring that there is no permanent adverse impact on the aquifer, the annual volume of water extracted from the aquifer is limited to 66 megalitres per annum with no more than 11 megalitres to be extracted in any twenty-eight day period.

The abovementioned annual extraction volume is subject of a twenty-four (24) month trial period. The twenty-four month trial shall commence from 1 October 2005 until 30 September 2007. An application under
Section 96 of the Environmental Planning and Assessment Act 1979 must be made to modify this condition if permanency of the expanded annual extraction volume and/or alteration to the restriction on extraction in any twenty-eight day period is sought. Such application must not be made before 31 March 2007.

 

.....at David Kettle Consulting v Gosford City Council & Ors [2005] NSWLEC 519 (29 September 2005)

 

54. The Court Order of final conditions of Moore C of 18 November 2005 imposes these conditions [bold added]:

 

1. For the purposes of ensuring that there is no permanent adverse impact on the aquifer a trial period is imposed extending to 31 December 2007. .....

 

A) The annual volume of water extracted from the aquifer is limited to 66 megalitres per annum with no more than 11 megalitres to be extracted in any twenty-eight day period.  .....

 

D) Compliance with the General Terms of Approval (GTA) under the Water Act 1912 issued by DIPNR now the Department of Natural Resources ("DNR") as attached to the letter dated 28 January 2005 annexed to these conditions and marked "A".

 

 

55. Thus in condition 1D Moore C adds another layer of restriction on step change in rate of volume of extraction affecting the aquifer and the groundwater dependent ecosystems so they may recover. He does this by cross referencing the court's trial conditions with "compliance with the General Terms of Approval".

56. This is an obvious measure by Moore C in order to ensure a better metric in the Trial of the effect of water bottling on the aquifer as distinct from other possible water uses on the PRS site.

57. In the hearing of 27 June 2008 over intervenor status there was debate about the legal authorities regarding extent of new consent conditions that could properly be considered in a s.96AA application. 

 

58. It was argued by Fraser for GCC that a narrow approach should be taken with specific nexus to the condition being deleted (eg the Trial). At one point earlier in the hearing Eastman for CCA declined to follow the line of precedent reasoning of Mr Fraser constraining the subject of new consent conditions (under his ethical obligations in the bar rules), a submission that was noted and appreciated. Later Mr Eastman may have shifted toward Mr Fraser’s view.

 

59. We have consulted the Environmental Defenders Office and understand these precedent cases are relevant:

 

Benalup Holdings Pty Limited v Lismore City Council (1993) 81 LGERA 257

 

North Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 ;

 

Recent Cases Citing Benalup and Standley

 

Captain Cook Cruises Pty Limited v North Sydney Council [2002] NSWLEC 243

http://www.lawlink.nsw.gov.au/lecjudgments/2002nswlec.nsf/00000000000000000000000000000000/dfce3dd1da8e8d97ca256c92001c9e86?opendocument

(this case, and those following its authority, contain the preferable interpretation of s96 of the EP&A Act)

 

1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

 

60. The EDO note:

 

The question was re-considered in 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685.  In that case a development consent was subject to a condition that two houses on a dual occupancy lot could not be separately disposed of.  The Council granted the modification application subject to imposing another (slightly less restrictive) condition preventing separate disposition of the houses via a company share arrangement.  The Court found that the condition could be validly imposed.  McClelland J, following the obiter observations in Michael Standley, found that the consent authority did have the power to modify the consent otherwise than in precisely the terms requested by the applicant for modification.

 

However, the modifications to be valid had to relate to the “matters raised for consideration by the application”.  His honour explained the position as follows at [51]:

 

“Ultimately the limits of the discretion which may be exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly, when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will arise for consideration.  If an application is made to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case, extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not arise. I do not understand the President to be suggesting otherwise.”

 

 

61. We submit whether narrow or broad approach to the power of the court to open up new consent conditions I preferred, that the case(s) mentioned by Mr Fraser can be distinguished on the facts of the C Moore Trial regime itself: The Trial condition subclauses 1A-1C under litigation are in context a package with clause 1D incorporating the GTA.

 

62. This is not surprising as implementation of the Trial is not in reality a minor condition but underpins the structure of the whole approval regime of Moore C’s prescient precautionary approach in the age of climate change, and strongly inter relates with the other subclauses in condition 1 for efficacy.

 

63. The Trial conditions address both level and rate of extraction: We submit Moore C was mindful that a bottled water plant has inherent limits to volume and rate of extraction both relating to staffing, hours in the day, and machinery limitations to process the water, all with consequences for impact on the aquifer. Such inherent limitations are part of the regime to protect the aquifer by limiting extraction to bottling (onsite).

 

64. By contrast bulk water tankers due to their much higher capacity for extraction (eg to supply a brewery or other industrial uses or even bottling offsite), especially if they become an established business, will inevitably reach and put pressure on the trigger level and the aquifer much sooner creating more pressure for extraction above even 66ML/YR. This was never the intention of the Moore C consent and a ban on bulk export was in effect part of the Trial context to get clean data about that in terms of volume and rate.

 

65. Thus clause 1D implies ban on bulk export of water (via incorporation of the GTA clause 1.5) seeks to prevent the far more accelerated form of water extraction by bulk water tanker. Clause 1.5 reads:

 

"1.5  Water shall not be pumped from the bore authorised by the licence for any purpose other than water supply for mineral bottling purposes."

 

 

This would preclude bulk water tankers which is not "supply for mineral bottling purposes".

 

 

66. Moore C applies 3 methods to get a probative Trial in order to test the socio economic environmental effect of water bottling on the aquifer. One is to limit overall volume at 66 ML/YR. Second is to limit gross rate of extraction at 28 ML/YR. The third is to limit extraction of water only for the purposes of bottling which was the purpose of the DA which has another in built volumetric/rate limitation built into it due to capacity constraints of bottling machine, staffing levels, etc which thus addresses the same concern about a bulk water supply business being established at the development site, as distinct from water bottling.

 

67. We submit Moore C intended to address concerns over a step change in extraction rates above 11 ML in 28 days time as an adverse impact on the aquifer. But he is not willing to oppose intensive bottling up to 11 ML in 28 days:

 

68. We also note that the CCA website as of 4/6/08  similarly suggests no bulk exporting from Peats Ridge as it is [bold added]

 

"Peats Ridge Springs, Peats Ridge (water bottling only)"

 

[copy of website printout at p36 and at 39 of the Evidence]

 

69. We submit a new express consent condition on the Applicant/CCA should read to the effect of

 

Condition: Water shall not be pumped for bulk tanker export off the site. No bulk water export supply business is to be established at this site.

 

70. In particular we see a 'new' express ban on bulk water in the development consent conditions merely clarifying the conditions already in the C Moore trial conditions. The fact is bulk tanker supply is potentially a distinctly higher intensity use putting the aquifer at higher risk of sudden step change unconstrained by manpower or plant limitations for the bottled water operation.

 

71. As per the Brink Report 1996 [evidence pp171-2] proving interaction between bores across the CCA/Azzopardi the interference was at 8ML/yr, 5days a week, 10 hours a day, while CCA proposal today is at 66ML/yr, 6 days a week, and 24 hours a day. The interaction can only expect to be greater across the boundary line and any intensification of volume or rate from to service a sunrise industry in bulk water export will have an affect on their aquifer.

 

 

 

F-2 Need for an express condition for rehabilitation of the un named water course on the site of Peats Ridge Springs Pty Ltd

 

72. We submit an extra condition of consent should be imposed on the Applicant/CCA for rehabilitation of the un-named water way on the CCA site.  

 

73. We rely for authority in the advice of the EDO regarding new consent conditions under s.96 or similar in the Environmental Planning and Assessment Act  above at paragraph 24C as follows: Groundwater dependent flora and fauna are another (natural) indicator of whether a Trial is successful or not as regards impact on the local aquifer. Evidence from Margaret Pontifix to Moore C in Sept 2005 as per the ‘Green Folder’ materials [Evidence at p83, and more generally pp76-103] show that up until the 1980ies permanent umbrella ferns were present on the site.

 

74. The rehabilitation should be at the direction of DWE and appropriate expert consultants and prior advice such as outlined in the letter of Land and Water Conservation 20 December 1999 to Livio Pace [Evidence p168] and 20 Feb 1996 [Evidence p170].

 

F-3 Intensification of extraction to increase threat of contamination sources to bottled water

 

75. We submit that higher intensity extraction to 66 ML/YR will increase the risk of contamination of the bottled water product from normal agricultural operations across the site boundary as a result of greater interactions toward the point of extraction.

 

76. Chicken farming as a business sector has intensified in parallel with the increased retail business of the bottled water industry. This doesn’t seem to be a very sensible combination for managing the risk to public health.

 

77. We refer to

 

(a) paragraph 4 of NSW Agriculture letter of 4 December 2003 [Evidence p161];  

 

"It is normal agricultural practice to use fertilisers containing nitrogen, any excess nitrogen not taken up by plants could leach into groundwater. Nitrates and nitrites in drinking water can be a health risk. Referral to the Central Coast Public Health Unit may be necessary." 

 

(b) consequences of mass poultry carcass burials from Newcastle disease in report of NSW Agriculture 7 August 2003 [Evidence pp163-165];

(c) concerns of John Williams, Regional Hydrologist in letter dated 15 March 2000 at bullet points 1 and 3 and paragraph following [Evidence p166];

(d) ERM consultants to CCA/Peats Ridge Springs dated  Sept 2004 [Evidence pp173-176] at page 11:

If nitrate concentrations in on-site wells continue to increase despite this strategy, more significant measures would be considered in consultation with DIPNR, which may include (but not limited to):

         Installation of additional production wells farther from the Azzopardi property boundary, which appears to be a significant source of elevated nitrate in groundwater; and

         A decrease in the rate of groundwater abstraction to halt the advance of nitrate-impacted groundwater on site. 

Further measures to address increasing groundwater contamination from offsite sources may be considered as required, and would involve consultation between PRS [CCA] and DIPRNR”

[And at p15]

“It should be noted that the commercial success of PRS [CCA] business is strongly dependent on compliance with the relevant water quality standards (ANZF, 1987), such that minimising the on-site encroachment of nitrate-impacted groundwater is a common objective of both PRS [CCA] and DIPNR.”

(e) Similarly in the ERM report dated October 2003 at para 3.1.2 of that document [Evidence pp185-189 at p187]:

- “The ANZFA 1987 Food Standards Code – Standard 08 – Mineral Water criteria were not exceeded in any well on any sampling occasion;

- Nitrogen (as nitrate plus nitrite and total N) mean concentrations are higher in wells MB5, MB10 and MB11, positioned along the boundary with the Azzopardi poultry farm, compared to wells MB2 and MB7. This indicates that the poultry farm activities, particularly with respect to disposal of manure, may be impacting groundwater beneath the site. However, nitrogen concentrations do not appear to be increasing with  time, indicating that the groundwater system at the site is in steady-state (refer Annex A) [not included here]. Note though, that there is a trend evident in MB2, in which both the NOx and TN concentrations increase and then decrease. In the context of fractured groundwater system, this indicates either a one-off nitrogen pulse moving through the system or an intermittent nitrogen source, and

 

* Groundwater flow at the site is to the southwest and south-southwest with an average hydraulic gradient of 0.03 to 0.04.”

 

 

G. Unsafe conclusion by Lane for permanent extraction at 66ML/YR rate

 

78. We offer the following preliminary comments on the Lane report obtained 23rd July 2008:

 

1.2 CAE Brief

 

Comment: The brief fails to address whether the Trial has been implemented. Further it fails to ask whether the Trial was (a) successful (b) a failure (c) inconclusive (d) whether it should continue.

 

4.2   Hydraulic Behaviour of Aquifers - Local interference occurs when drawdown due to pumping a bore extends off site to affect other bores.

 

Comment: Refer Lane to Brink 1996 Report, refers to interference between Pace bores and Azzopardi. The interference was at 8ML/yr, 5days a week, 10 hours a day, while CCA proposal today is at 66ML/yr, 6 days a week, and 24 hours a day. Brink Report was excluded from evidence by CCA and GCC.

 

 5.1.1 Geographic Setting - The site is located in a minor valley of an ephemeral stream which flows into the Mooney Mooney Creek.

 

Comment:  the meaning in the Oxford dictionary  for ephemeral is :  lasting only a short time, compared to “intermittent :  occurring at intervals, not continuous”.

 

Refer to the LEC Judgment of the RFIAct case for the definition of river, its on Page 15, number 60, under The Relevant Statutory Provisions, ephemeral is not in the definition, but intermittent is.

      

The Permit issued under the Rivers and Foreshores Improvement Act to Pace to excavate , the letter to then owner Pace in 1996 from the State Govt Dept DLWC [at page 170 of the Evidence by Wayne Conners] regarding “illegal” rubbish and excavation and RFI Act and the definition of River should be noted as evidence the creek is not ephemeral.

 

CCA has been referring to the creek as ephemeral in a self serving way. Council refers to it as a creek or river under the legislation.

 

5.1.2  Geology & Aquifers Lane say that ERM reports that regionally the sandstone dips to the south west [not true] , Lane reports that a more easterly dip in the bedding is likely.

        

Comment Lane is correct.

 

5.1.4  Ground Water Quality it states:  Ground water on the  western side of the creek  is very different quality and chemistry to that on the eastern boundary of the site.

 

Comment:  Lane above said "on the western side of the creek”, yet in 5.1.1, he calls it  ephemeral" which is inconsistent.

 

5. 4  NCGM MODELING REPORT - The key conclusions in the Alkhatib-Merrick Report are at page 168 and summarised here. While the model was designed for regional areas ,it can be modified to assess specific problems such as water bottling.

 

Comment #1: As all farmers say, water bottlers extraction of water is continuous, [see above for hours of  operation] , farmers extract water according to use, depending on weather, age of crops/chicken, surface water, which gives the bores time to replenish themselves. 

 

Comment# 2 We do not concede that the model designed for regional areas can be modified to assess problems such as water bottling at a local level.

 

Comment#3: It is not conceded that higher than 10% reduction in baseflow is acceptable to the community or the environment or the State Govt or the Court in the shoes of the council. A precautionary approach would treat the sustainable yield as 38% of that under the Water Sharing Plan namely as low as 800ML/YR in dry years. Discussion suggesting otherwise with Dr Merrick is potentially tainted by his financial conflict of interest to have CCA fund his further studies.

 

 We understand Dr Merrick is not a hydrologist by training but rather a computer modelling expert and thus cannot genuinely provide advice on environmental/aquifer impact beyond his computer modelling expertise. For Lane to accept Merrick on face value about this is not scientifically valid.

 

Also unmonitored extractions and unlicensed water use by numerous quarries on Mangrove Mountain or other users suggest extreme caution in case any increased extraction compounds an already over allocated system.

 

Comment #4   Lane is right to say that "the applicability of this model for local issues like PRS is questionable" and contradicts the Merrick reliance on the model in fractured rock aquifers.

 

Comment #5 Lane admits he has not had enough time being 3 or 4 days to absorb the detail of the Merrick Report, which was supposed to be provided to him on 7 July 2008

 

 6.1 MONITORING DATA - 7th paragraph, "I note that the actual total instantaneous extraction rate would have been higher than the rate calculated in this way as pumping is usually over 5 days in a week, not 7 days.

 

Comment: CCA should have advised Lane of the working hours.

 

6.3.1 WATER LEVEL DECLINE Page 14.  - In terms of potential interference drawdown effect off site, the data shows the greatest drawdown in a south easterly direction. The significance of this will depend on the existence of any off site bores in this direction. I have no information on bores in the south east.

     

Comment#1:  Regarding the neighbouring Azzopardi bores Lane should recall that there are bores close to the boundary western boundary with CCA/PRS Pty Ltd.  Lane was informed in the 2006 Trigger Case about these bores at his site inspection, and he had wanted to come and inspect them. The Brink Report [first two pages in Evidence pages 171 and 172] although from 1996 is very useful in clarifying this interaction of bores across the common boundary even at only 8ML/YR at that time.

 

 Comment #2: This text from Lane should be quoted:

 

lanedatadeficitsextract18july08.jpg

The data Lane relies on excludes the hot dry high demand period for bottled water in Dec to Feb 2005-6. Similarly the data refers here to approximate similar situation in May 2008 which was driest on record highlight the impact on the aquifer in these climatic conditions which will only become more frequent according to the July 2008 CSIRO advice.

 

Lane concedes “Further monitoring would be required for some months with production at or close to the 66 ML/yr limit to provide the data sufficient to identify the new equilibrium water levels for the borefield and surrounds at this site.”

In other words to implement the Moore C Trial properly.

 

Comment #3

We understand that Bore 13 has dried out and is no longer usable as per site visit in 2006 with Lane.

 

Comment #4

There is no scientific assessment done for the CCA-PRS site or Peats Ridge generally of the recharge rate form rainfall. It is undefined and leaves analysis highly contentious.

 

Comment #5.

 

Even at only 35 ML/YR rate of extraction bore no. 5 in 2006 prior to the big wet was showing significant draw down.

 

DEPLETION OF RESOURCE Page 15 - 1st paragraph, last sentence, "There is insufficient information on aquifer properties to make an estimate of this "through-flow" rate.

 

Comment: This indicates lack of real data to base a permanent increase of 66 ML/YR

 

CONCLUSION Page 14

 

Comment #1 - Lane lacks monitoring data before March 06. The Moore C judgment was on the 29/9/05 and the final Judgment in November 05. There should be synthesis of monitoring data from December 05.

 

Point 4: There is potential for impact on water levels in bores operated off site to the south east of PRS when operated at 66ML/YR, significance cannot be assessed without knowledge of the existence of such bores. To the extent that there are no such bores close to the site boundary in this direction, then this does not present a critical impediment to permitting the extraction.

      

Comment: Refer to the excluded Brink Report of interaction of bores. There is major potential for impact when the drought sets in again. The report does not refer to climate change. There was impact at only 8ML/YR

 

Point 5:  Based on all reports, the allocation be made permanent.

 

Comment:  Lane’s recommendation is impertinent in light of Moore C finding with the same or similar lack of information finding CCA should do the full Trial extraction first. CCA are transparently seeking to avoid doing the extraction without  first getting the permanent licence. The Trigger case [water level down unexpectedly] was all about the loss of money, contracts, and employees. Since early June 07 there has been plenty of water around yet Coke has still not carried out the 66ML extraction at a sustained rate. This is the legal and ethical way to prove that it could be done without substantial impact, but chose not to.

 

For Lane to take the recommendation of 30% baseflow from Merrick who is a computer modeller and not a hydrologist is not scientifically valid.

 

79. We offer the following preliminary comments on the GHD May 2008 Report:

 

1.1.3  GEOLOGY

 

In here it refers to the Brink report of 1996, in the October report it referred to ERM 03.

 

1.2     OBJECTIVES

 

 The total monitoring data collected was from March 06, [after the trigger case]. It should be from December 05.

 

 Why did Lane and GHD both refer to monitoring data from March, 06. Interesting to note that GHD Oct. 07, did not state in the objectives when the monitoring data started from.

 

1. 4    LIMITATIONS

The limitations in this report are much more extensive than the ones in the Oct 07 report. Read 5th and 6th paragraphs of Page 7.GHD is being extremely prudent.

 

3. 1   EXTRACTION HISTORY

It states, on average -80% of total extraction occurred from Bore 7.

 

3.2   MONITORING RESULTS

It states, Pumping occurs on a weekly basis with pumps switched on Monday AM and off Friday PM.

 

Was GHD advised that Coke also operate on Saturdays and 24hours .

 

It states pumping is not continuous, rather pumps are cycled in line with production demand.

      

 In 3.1, page 10, it states, on average - 80% of total extraction occurred from Bore 7. If the pumps are cycled, how is it that on average - 80% of total extraction occurred from Bore 7.

 

Page 17 2nd paragraph

 

 Note, it states that the period of higher extraction occurring between Sept. 06 and April 07, did not result in a greater decline in water level.

 

In 1.2 Objectives, it states monitoring data was collected from March 06.

 

How does GHD know the extraction history, if the total monitoring data collected was from March 06.

 

 

 

 

 

 

H. Kettle’s Reply in response to GCC Facts and Contentions

 

80. Contrary to point 8 of Kettle the Trial ordered by Moore C was:

 

“For the purposes of ensuring there is no adverse impact on the aquifer” : Refer preface in clause 1 of the court consent conditions 2005.

 

The aquifer to be protected was not defined as the “Kulnura Mangrove Mountain aquifer” in the broad covering such a large area though that was also the intention. The aquifer as referred to in Moore C’s determination relates just as much to the local aquifer of the un named water course on the PRS site, the neighbours aquifer, the spring that existed previously north of the site, Mooney Mooney Creek, Peats Ridge and so on. To only refer to the broadscale aquifer of the KMM WSP is unduly narrow and disingenuous.

 

81. Further in point 8 Kettle implies the Trial was only to enable studies to be completed “for completion in 2007”. In fact the Trial had 3 possibilities – success, failure or indeterminate depending on evidence generated, and these outcomes are quite separate to the completion or not of the studies done. The studies might or might not be conclusive which is a matter for the court to determine.

 

82. Contrary to Kettle in point 10 it is noteworthy that the Director of Environment and Planning reversed the GCC’s  position within a week on 12 February 2008 to reject the DA of CCA because the Trial had not been implemented.

 

- Lack of finality in CCA seeking to rely on DWE discretion under the GTA to reduce water level extraction.

 

 

83. Kettle at points 11, 12, 13, 14, 15, 16 relies heavily on the discretion of DWE in the future if needed during drought or climate change to reduce water extraction by for instance clause 1.6 of the GTA incorporated in to the court consent of Moore C by subclause 1D. This reliance raises the question of political influence through the State Government and Coca Cola’s $900K in donations over the last 10 years: Refer Greens Democracy4sale research website.

 

84. The Intervenor opposes such an approach for lacking certainty, clarity or finality in relation to the development approval: The court as consent authority has primary responsibility as consent authority for assessing and deciding conditions for the development application and should not delegate that task to the DWE.

 

85. We have consulted the Environmental Defenders Office and rely on the citations for cases regarding the planning law.

 

Mison and ors v Randwick Municipal Council and ors [1991] 191 NSWLR 734

 

Transport Action Group against Motorways Inc v Roads and Traffic Authority (NSW) (1999) 46 NSWLR 598

 

Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508

http://www.lawlink.nsw.gov.au/scjudgments/2001nswca.nsf/00000000000000000000000000000000/c8c358b177cbb3b9ca2569f70080d0fc?opendocument

 

Kindimindi Investments Pty Ltd v Lane Cove Council and Another (2007) 150 LGERA 333 (this is one of the most recent and important judicial considerations of the finality principle)

 

Ulan Coal Mines Limited v Minister for Planning and Moolarben Coal Mines Pty Limited [2008] NSWLEC 185

http://www.lawlink.nsw.gov.au/lecjudgments/2008nswlec.nsf/00000000000000000000000000000000/215e3232bff54de8ca25745e000529b3?opendocument

 

 

86. Contrary to the Kettle submission the Intervenor submits the weight of evidence is that profound uncertainty still remains regarding climate change, drought, over allocation and unlicensed extractive users of water at Peats Ridge as well as complexity of the multiple aquifers and this is not resolved by the work of Dr Beck for CCA.

 

87. It is noteworthy that Moore C had the same potential reassurances of DWE discretion to alter future volumes and rates under clause 1.6 of the GTA incorporated by consent condition subclause 1D and preferred to order the Trial instead. In this sense Kettle is seeking to defy the finding in the  Moore C 2005 judgement itself.

 

88. We submit that Dr Beck’s evidence has been discredited by the water table plummeting in 2006 contrary to his evidence in the 2005 Case.

 

 

- Hemantha De Silva DWE letter Dec 2007 to GCC General Manager

 

89. Given the reliance of Kettle in his Reply to GCC on Hemantha De Silva,  DWE officer letter of 10 December 2007 which states

 

-          the Trial has not been implemented beyond 44 ML

-          DWE stands by departmental water licence conditions regardless;

 

Mr DeSilva should attend the hearing in this case to give evidence regarding various matters in our outline of submissions such as

 

-          Dr Brian Marshall advice on the real nature of the complex Sydney Sandstone aquifer, rather than huge monolithic resource;

-          Level of uncertainty over existing over allocation at Peats Ridge due to unmonitored extractions by quarries and other users;

-          The efficacy of Lane adopting Merrick’s arbitrary 30% reduction of baseflow figure to ginger up sustainable resource available

-          The CSIRO report of early July 2008 of radical shift in extreme drought from 1 in 20 years to 1 in 2 years

 

90. It is noteworthy that De Silva for DWE also observes that the Trial has not been implemented to the 66ML/YR level. Mr De Silva states to the GM of GCC as follows:

 

“The report [for CCA] states that a volume of forty four (44) megalitres of groundwater  was extracted during the trial though the Land and Environment Court Determination  allow the licence holder to extract up to 66 Megalitres a year during the two year trial period.”

 

We submit DWE are implying the terms of the Trial have not been implemented.

 

 

 

J. Misleading and deceptive conduct under s.52 of the Trade Practices Act

 

91. We have made a submission 25 July 2008 to the Australian Competition and Consumer Tribunal related to this case.

92. The legal and media research over the last several months has indicated the CCA subsidiary Peats Ridge Springs Pty Ltd - which is also

-          its business signage,

-          trading name, and

-          common name of its business location on Mangrove Mountain near Gosford,

-          has been at least for some years in advertising on their bottled water product,

is NOT spring water but actually bore water. If we are right then this is potentially a breach of section 52 of the Trade Practices Act and equivalent NSW fair trading legislation for misdescription of the CCA/PRS product.

93. That is to say the company in court documents fully concede the water is pumped from multiple bores from a source that used to be a spring fed creek up until the early 1990ies but which now has been wrecked by over consumption. The water is no longer from a spring.

94. The Australian Macquarie Dictionary Third Edition [pp29-30 Evidence], defines a spring as

"34. an issue of water from the earth, flowing away as a small stream or standing as a pool or small lake, or the place of such an issue: mineral springs"

95. The local food growing farmers and horticulturalists quite reasonably accuse the CCA/PRS of producing "bore water" as per minutes of a public meeting in 2006 not spring water as a result. In 2006 CCA was successful in litigation in getting permission to extract water 5 metres deeper into the ground (in the drilling jargon from 10m to 15m from case collar). The locals now describe the once permanent creek, once permanent groundwater dependent flora and wildlife "as a bare paddock".

96. The CCA print out of their website earlier this year [Evidence pages 36-39] refer only to "Peats Ridge Water" as their product line. Refer http://www.ccamatil.com.au/australianProducts.asp

97. CCA maintain on another webpage "Peats Ridge Springs, Peats Ridge (water bottling only)". This suggests to us the corporation is alive to the misdescription of product issue but continue to play in the grey legal area while they can, having destroyed the un named watercourse on their site. Refer http://www.ccamatil.com.au/bottledwater.asp

 

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