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Comments on Council report into sandmine impact on Tinda Ck, Blue Mtns World Heritage

tindackbirdon6may2005viahccoverflight.jpg

Sent: Monday, November 10, 2008 5:41 PM
Subject: Diamond written analysis on Birdon sand mine HCC report for 's.96' DA Tinda Ck

Dear General Manager and for Chief Planner Matt Owens
 
As discussed by the senior officers and Mr Diamond last week.
 
Please find attached a written analysis of the report on Birdon/Tinda Ck sandmine going to full council tomorrow night.
 
We have attempted to make the comments as factual and constructive as possible.
 
The comments are marked as text in red based on the 29 July 2008 report which we understand is the same appearing in the the latest business paper to council Tuesday evening 11th November 2008.
 
Please do not hesitate to contact the writer with any queries on tel. 0410 558838 or 02-xxxx xxxx.
 
Yours truly.
 
Tom McLoughlin as court agent for Neville Diamond.

 

 

 

 

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

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 37

 

Item: 151 CP - Section 96 Application to Modify Development Consent DA0134/95, Lot 2,

DP628806, No. 6102 Singleton Road, Mellong - Tinda Creek - (79347, 27001)

Development Information

Applicant: Birdon Contracting Pty Ltd

Applicants Rep: Umwelt Environmental Consultants

Owner: Birdon Contracting Pty Ltd

Stat. Provisions: Hawkesbury Local Environmental Plan 1989

Area: 90 hectares

Advertising: 14 September 2006 to 29 September 2006

Date Received: 17 July 2006

 

Key Issues:

 

Lapsing of Consent

Compliance with Conditions of Consent

 

Recommendation: Refusal

 

REPORT:

 

Council has received an application under Section 96 of the Environmental Planning and Assessment Act to modify Development Consent DA0134/95. The modification involves:

 

 

1. Amend Condition 1 by changing the wording of the condition to reflect the plan and documentation of the Environmental Impact Statement dated 1 November 1995.

 

2. Amend Condition 27 by changing the wording of the condition to require a Site Environmental

Management Plan (EMP) to be prepared and reviewed at least every 12 months.

 

3. Amend Condition B3 to increase the maximum annual production from 100,000 tonnes per year to 125,000 tonnes.

 

Agree.

 

The report contains a more detailed discussion of the proposed changes.

 

The s.96 application breached clause 283 of the EP&A Regulation 2000 for being false and misleading by

 

(a)     wrongly suggesting SK2 plan was in anyway a substitute for the real approved plan PS91E130 dated April 1996, or alternatively suggesting there was ever any confusion over the real approved plan. This was a warning of further departures from the lawful planning process to come.

(b)     SK2 plan provided wrongly indicated the Tinda Ck was truncated to 500m west of the existing quarry works, such as to mislead a normal person in the advertising process.

 

Background

 

In 1986 Council approved a development for the purpose of creating a dam on the site. The extraction of sand from the site also took place. The lease operator sought to formalise the sand mining activity and lodged a Development Application (DA0134/95), which is the current approval.

 

We say the extraction expanded from the approved  3 acres to approximately 30 acres without council consent. The badly built dams collapsed and polluted Tinda Ck and the neighbouring property. Complaints were mades and the State Pollution Control Commission prosecuted and obtained $10,000 fine. Consent condition 1 of the 1986 consent required a water license to extract from ground water prior to commencement and this was never obtained, though a water license was finally obtained in 2004 for a different DA.

 

The application proposed the following:

 

Sand extraction from 50,000 tonnes up to 100,000 tonnes annually.

Life span 25 years.

Truck movements of 8 (eight) up to 16 (sixteen) daily.

Final landform being rural grazing and large lake.

Extraction relates to the rear portion of the site only.

 

Agree, and note the retrospective approval of some 10 years of either unlawful operation up to 1991, and no consent whatsoever from 1991 as documented by council report of that year by planner Michael Coulter. Further confirmed by letter of council officer Furnace Coulter of 15 January 1996: “sale of material has been on going over several years and such activity has been operating without Development Consent.”

 

Council considered this application at the General Purpose Committee Meeting on 26 November 1996 and resolved at the Ordinary Meeting on 10 December 1996 to issue a staged development consent for Stage 1, with the remaining stages being a Deferred Commencement approval subject to the conditions to be completed at Stage 1.

 

However in 1996 there was a water embargo by the DLWC which stopped the lawful issuing of water licenses which was required by consent condition 33 of the this 1996 DA 134/95. The water license embargo is evidence by the report and file notes of Paul Bourne DLWC on the inspection of December 1995 in the council file (submitted to the file by objector Diamond).

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 38

 

 

The decision to issue a staged and deferred commencement approval was in recognition of concerns raised by the residents and government agencies as to the potential for the development to pollute.

 

Agree, and note this was also the formal outcome of a mediation conference 4 Dec 1996 prior to the DA approval 10 Dec 1996 with objector Diamond and Birdon and HCC and to avoid filing any litigation. Out of the mediation conference consent condition 4 was added with a view to moving the bypass channel 20m from the boundary fence, and to get a 3A permit under RFI Act to do this. Condition 4 covered the RFIA concern by requiring ‘details of erosion and sedimentation control’ to be approved by DLWC, these being the same details as for a 3A permit within 40 metre zone of the protected waters.

 

Any stage after Stage 1 would only be permitted where the operator can illustrate that

revegetation/rehabilitation is taking place, in accordance with the approved plan and with an acceptable time frame.

 

Agree in the sense that the 1996 approval was always intended by council’s officers eg Peter Lee and agreed to by Tom Bruce at the mediation conference (and confirmed by Tom Bruce letter of 15/12/98 in the last paragraph: “we seek unlimited time to complete stages with compliance approval as each stage is completed.” Other evidence of the imperative of the strict sequence of stages with approval of one to the next:

 

1.      Letter 24 December 1996 by Peter Lee, Branch Manager Buiding & Development to Neville Diamond – “The approval is subject to conditions as a Staged Approval for compliance with each stage of the operations.”

2.      Letter dated 20/8/96 by NSW NPWS Lou Ewins Manager Environmental Planning Unit SYDNEY ZONE to GM/HCC: “As noted in previous correspondence, the Service recommends that should consent be given Council should consider a staged approval process with approval of each stage dependent on satisfactory performance of environmental safeguards (as assessed by proposed water quality monitoring) and site rehabilitation.”

3.      Memo officer Greg Hall of HCC to Malcolm Ryan dated 17/9/2003 “Legal Opinion of the Consent “would be carried out in stages and in recognition of concerns raised by the residents and govt agencies for the development to pollute ….staged approval under Sec 91 AB be permitted … further stages only permitted where the development can illustrate that the revegetation/rehabilitation is taking place ….”

4.      Letter of legal advice by Abbott Tout to GM HCC dated 12 July 2000 to GM -HCC regarding staging and deferred commencement and refers to evidence of meaning contained in the original officers’ report to full council dated 10 December 1996, and resolution of council same date.

5.      Precedent case of Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd 98/40130 by Lloyd J finding a fatal breach of consent inter alia where out of sequence

 

 

A third party appeal was lodged by N. Diamond for Tinda Creek Spiritual and Environment Centre in the Land and Environment Court against Council's decision on the application and the wording of particular conditions of consent. Agree, lodged in March 1997, 3 months after the approval Dec 1996 in particular to force Tom Bruce to honour an undertaking at the 4/12/96 mediation conference to issue a formal option to Diamond to re-purchase 100 acres at Lot 1 back after forced mortgagee sale of Sept 96 as compensation for past pollution, theft and vandalism. Bruce formally agreed at the court mediation to issue the option to purchase which legal document was drawn up by Diamond’s solicitors and signed June 1997.

 

A mediation conference [at the LEC as distinct from at council Dec 1996] was held with all parties and, as a result of the conference, the Appellant discontinued the proceedings and the Appeal was withdrawn.

 

Agree as above regarding forced compliance with undertaking for option to re-purchase.

 

An application to modify the development consent was lodged in December 1998. The application

proposed to amend Condition 3 to extend the time period to complete Stage 1. This application was considered and approved at the Ordinary Meeting of the 14 December 2004.

 

Note the incredible delay in assessing and approving this s.102 (later s.96) modification (informal) application of December 1998 given the original DA was for only 2 years. The sand mine was operating without lawful consent 1999-2004.

 

The approval of the s.96 application was contrary to council’s own legal advice quoted in a letter of 25 June 1999 by Town Planning Co-ordinator Stephen Enders as follows:

 

“Simply, the application has been made beyond the period of two years referred to in condition 3. The endorsed date of the consent was 23 December and it expired on the 23 December 1998. There is therefore no “development consent” within section 96 upon which the applicant or any person entitled “to act”. That being the case there is no consent which Council could modify, even if it were minded to do so”

 

This legal advice is sourced to Abbott & Tout April 1999. This legal advice is supported and echoed by David Jeffery, solicitor at the NSW EDO 29 November 2004 which reads:

 

Other comments

 

It would appear to us that, as the 1996 [approval] lapsed in December 1998 and the application to modify the consent to extend the application has not been granted, the applicant is undertaking its sand mining operations without development consent, in breach of the EP&A Act. Even if the modification application was lawfully made, until it is determined, the activities appear to be unlawful.”

 

These illegal operations included (not limited to)

 

-          lapsed consent since January 1999

-          no water license, no EPA license for designated development,

-          out of sequence into area 3 skipping area 2, and without staged approval,

-          in breach of approved plans for tailings to be placed mainly in crown land from 14m to 20 metres. Of course with no crown consent they couldn’t excavate crown land either, at least not lawfully.

 

The 5 year delay in assessment and approval is a radical departure from good governance principles.

 

A third party appeal was lodged by Mr N Diamond and the matter was considered by the Court who issued Court Orders in relation to the matter.

 

[Agreed and terms of settlement included various legal obligations ongoing and $50K payment to Diamond’s son in lieu of part payment of compensation to the family for alleged harassment/theft by against Birdon staff.]

 

In April/May 2005 Council Officers identified that the operation had extended beyond the area shown on the approved plans. Council wrote to the applicant and in response to the matter the operator chose to lodge an application under S96 of the EPA Act which is the current application.

 

This paragraph is correct but it should be noted that council officers were aware the mine was out of approved sequence for years now. Also by 2005-6 officers were aware that the mine was encroaching on lot 1 without consent (eg letter of Robert Montgomery of HCC 16/3/06 to Diamond, also Hall letter to Birdon that 7 Nov 2005).

 

The Proposal

 

The application proposes to modify the wording of Conditions 1, 24 and B3.

 

Agree these are the terms of the application but reserving comment on the highly deceptive nature of referencing false plan SK2, and merits as below.

 

Condition 1

 

The condition currently states:

 

"The development shall be carried out in accordance with Plan No. PS91/E130 dated April

1996 and documentation of Environmental Impact Statement dated 1 November 1995 as

amended."

 

The amended wording proposed by the applicant is:

 

"The development shall be carried out within the Extraction Area shown on Drawing No. SK 2 Job No. PS91/E130 and in accordance with documentation of Environmental Impact Statement dated 1 November 1995 as amended by conditions of consent and the

Environmental Management Plan referred to in Condition 27."

 

The applicant has provided the following argument for the proposed modification:

 

"The first reason for seeking this modification is that since consent was granted there has

been confusion as to which plan Consent Condition 1 is referring to as PS91/E30 is the Job Number used by Port Stephens Design Service who prepared the EIS not a discrete plan number. As a result there are many figures and plans shown a range of things that have PS91/E130 on them.

 

The second reason for seeking this modification is that the configuration of the extraction area and operating procedures will change over time as a result of ongoing extraction and improved extraction techniques. These changes are most appropriately addressed as part of the Environmental Management Plan (EMP) required by Condition 27. This has been recognised by Council in its fax of 3 March 2005 to Birdon Contracting which states:

 

"The EMP should be reviewed regularly at least 12 months and adjusted if necessary due to any change in operating procedures. The staging plans should be attached and that the EMP may need to be altered with each stage."

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 39

 

 

The suggested wording change to Condition 1 will enable the development to be undertaken

within the extraction area as defined in the EIS and in accordance with the current EMP.

 

Condition 27

 

The Condition currently states:

 

"A site environmental management plan shall be prepared within one month of the date

of this approval, to address:

 

a. On site materials management

b. Daily operating procedures

c. Erosion and sediment controls

d. Emergency contingency plans

e. On site drainage processes to ensure water quality.

 

The amended wording proposed is:

A site Environmental Management Plan (EMP) shall be prepared within one month of

the date of this approval and reviewed at least every 12 months thereafter. The EMP

shall address:

 

a. Extraction staging and rehabilitation

b. On-site material management

c. Daily operating procedures

d. Erosion and sediment controls

e. Emergency contingency plans

f. On-site drainage processes to ensure water quality."

 

The applicant has indicated in accordance with Council's fax of 3 March 2005, it is suggested that

the wording of Condition 27 be modified to provide for 12 monthly reviews and to address changes to staging plans.

 

Condition B3

 

Condition B3 states:

 

"The sand extraction not exceeding a yield of 100,000 tonnes per year"

 

The amended condition is:

 

"The sand extraction not exceeding a yield of 125,000 tonnes per year"

 

In support of this variation the applicant has indicated:

 

Modification is also sought to amend Condition B3 to increase maximum annual production

from 100,000 tonnes per year to 125,000 tonnes per year. No changes are sought to

Condition B4 which limits total extraction to 2,000,000 tonnes over a period of 25 years.

The reasons for the proposed modification to condition B3 are as follows:

 

Sand extraction under DA0134/95 commenced at the site in the 1995/1996 financial

year. Over the eleven years to the end of the 2005/2006 financial year, a total of

652,617 tonnes of sand was extracted from the site at an average rate of

approximately 59,000 tonnes per year. In 2004/2005 annual production reached 94,157

tonnes with 89,720 tonnes being produced in 2005/2006. As at the end of May 2006

there was approximately 2.3 million tonnes of identified sand resource remaining in the

22 hectare area covered by the EIS (Port Stephens Design Services 1995) and

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 40

 

approximately 1.3 million tonnes that could still be extracted from the site under

development Consent Condition B4. Development consent DA0134/95 is valid until

December 2021.

 

As set out above in the first eleven years of operation, average annual sand production

of 59,000 tonnes per year was below the maximum permissible level of 100,000

tonnes/year and below the average extraction rate of 80,000 tonnes that would be

required to remove two million tonnes of sand over a 25 year period. Over the last three

to five years the demand for sand from the site has been steadily increasing with the

quarry production approaching maximum permissible production levels in 2004/2005.

The demand for sand remains strong and as a result demand for sand from Tinda Park

is likely to exceed 100,000 tonnes per year.

Since consent was granted in 1996, the legal load limit for trucks has increased from 25

tonnes to 33 tonnes. As a result of this change, it is possible to transport up to 132,000

tonnes of sand per year from the site with the same number of truck movements as

would have been required in 1996 to transport 100,000 tonnes of sand. It is understood

that the 100,000 tonne per year limit imposed by Condition B3 was based on limiting

truck movements to and from the site.

 

Analysis of operations at the site shows that an annual production level of in excess of

125,000 tonnes per year could be achieved using the same equipment, operating hours

and truck movements that are currently permitted on site under the existing

development consent.

 

 

Birdon Contracting seeks to modify condition B3 to increase the maximum permissible annual

production from 100,000 tonnes per annum as set out clause B3 of Development Consent

DA0134/95 to 125,000 tonnes per annum. This would enable the quarry to be able to respond to

increased market demand whilst still remaining in the overall bounds of the development consent

which limit production over the life of the quarry to two million tonnes as provided for in Condition

B4."

 

Statutory Provisions

 

The site is zoned Mixed Agriculture under Hawkesbury Local Environmental Plan 1989 within Mixed Agriculture zoning, extractive industries are permissible with Council consent.

 

There is a problem here with the omission of the mandatory requirement of the EP&A Act for consent of the crown for its part ownership of the site below 15.24 metres to 20 metres, which full area both crown and private land, is part of the whole site in the original approval. This is not a discretionary or flexible matter because the tailings are shown on the approved plan of April 1996 as located from 14 to 20 metres depth and this is essential to the efficacy of the final landform and lake. Otherwise the tailings are too close to the surface of the lake and dangerous to wildlife.

 

Council need to be properly informed of this issue. We have evidence of drowning wildlife – kangaroos and birds.

 

 

Community Consultation

 

The application was publicly exhibited and advertised from 7 August - 22 August 2006, in accordance with the provisions of the Environmental Planning and Assessment Act (EPAA) and associated Regulations.

 

The EPAA and Regulations required:

 

i) A Notice to be placed in a local newspaper circulating in the area;

ii) Site sign being erected on the site;

iii) Letter to adjoining and surrounding property owners and occupants, as well as those persons who previously made submissions on the initial application.

 

Agree advertised as above but the problem is the false and misleading diagram SK2 being advertised as if it was possibly the approved plan which is on council file as PS91E130 dated April 1996 (the date being a critical identifier). Additionally the SK2 diagram attempts to show Tinda Ck starting 500 metres from the quarry when it actually flows through it despite a bypass channel which never worked.

 

During the exhibition period:

 

Four respondents provided submissions in respect to the application.

Four submissions from Public Authorities.

 

The submission from the respondents raised the following issues:

Loss of water to Tinda Creek caused by the current mining operation.

Lack of compliance with the current conditions of consent.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 41

 

Lack of annual environmental reports for the mining activity.

Lack of any ground water monitoring bores.

Proposal is to increase the approved area of mining from 14ha to 22ha and not substantially the

same operation approved.

Drawing submitted SK2 does not specify the approved extraction area.

Illegal use of adjoining Lot 1 for a diversion channel and the dredge pond encroaching into the

northern boundary buffer.

Illegal clearing of land adjacent to existing mining area.

Matters raised by the main respondent, Mr Diamond, are outlined separately elsewhere in the report.

 

These matters will be discussed in the report.

 

 

Planning Assessment

Section 96E

 

Section 96(2) of the EPA Act States:

 

"A consent authority may, on application being made by the applicant or any other person

entitled to act on a consent granted by the consent authority and subject to and in accordance

with the regulations, modify the consent if:

 

(a) It is satisfied that the development to which the consent as modified relates

substantially the same development as the development for which consent was

originally granted and before that consent as originally granted was modified (if at all),

and

 

(b) It has consulted with the relevant Minister, public authority or approval body (within the

meaning of Division 5) in respect of a condition imposed as a requirement of a

concurrence to the consent or in accordance with the general terms of an approval

proposed to be granted by the approval body and that Minister, authority or body has

not, within 21 days after being consulted, objected to the modification of that consent,

and

 

(c) It has notified the application in accordance with:

 

i. The regulations, if the regulations so require, or

ii. A development control plan, if the consent authority is a council that has made a

development control plan that requires the notification or advertising of

applications for modification of a development consent, and

 

(d) It has considered any submissions made concerning the proposed modification within

the period prescribed by the regulations or provided by the development control plan,

as the case may be."

 

The modification proposes to extend outside the area identified on the plans approved by the Development Consent.

 

A submission has been made by the Environmental Defenders Office Ltd argues that the modified development as proposed is not substantially the same development and cannot be considered under Section 96 of the EPA Act.

 

The matter of whether a modification can be considered under Section 96 is a matter of fact and not a question of law.

 

We agree it’s a factual test well within the chief planner’s remit.

 

However with respect this brief attention to the EDO letter of advice is trite. True it’s a question of fact not law. Even so the principal solicitor Kirsty Ruddock at EDO with their years of expertise give advice on the factual equation to be considered, not just the law, just as the chief planner undertakes. Why the EDO is wrong, is not really explained as regards their advice the proposal has greater intensity, increased area,  increased water use,  beyond the area of the real approved plan (not SK2) to extract a large volume of a different 1.3 millions tonnes to that approved.

 

Even if arguable these issues from the EDO should be expressly addressed in council’s report: We include another copy here extract of letter of 17 Sept 2007: 

edokirstyruddock17sept07s96analysis.jpg

Additionally, this section of the report does not address the incomplete environmental study for areas 1a and 2a extension to judge substantial difference with the original proposal: Such a study was not done in the original EIS, or done inadequately, for the new area in relation to:

 

-          Sand quality in the proposed expansion: Bore holes by Coffey and Partners were confined to the approval plan area ‘PS91E130 dated April 1996’ so there is no information as would be expected in an environmental study of the new area. We refer to figure 7.4 clearly showing where the bore holes were drilled.

eisborescoffeypartners4nov1995.jpg

-          NPWS letter of 11/1/96 Russell Couch to HCC GM states “It is not clear …in the EIS whether or not the whole area proposed for extraction has been the subject of an [Aboriginal] archeological survey.”  This is presumably why Birdon relies on a incomplete survey from Brayshaw McDonald Pty Ltd, Consultant Archeologists of 1984 “focussed on the north western quarter of the extraction area” (p68 Owens 29 July 08 HCC report). The new extraction area is on the eastern side of the site not western side.

 

-          As regards Umwelt reliance on EIS for impact on natural environment, we understand that the freshwater ecologist Smith is referenced in the EIS on frogs but says there needs to be further studies across the seasons. In other words a clear admission of incomplete study.

 

-          The letter of HCC officer John Pye to Birdon dated 12 January 1998 regarding lack of compliance with various environmental management conditions such as: site environmental management plan; water monitoring for ground water and creek plan (condition 17 b);  revegetation plan (condition 24); archeological study (condition 28). In these circumstances the reliance on the EIS without more is totally inadequate.

 

-          “The EIS makes no recommendations as to proposed species for revegetation. Revegetation is essential for soil stability.” Marwan El-Chamy /DLWC 15 Dec 1995 to GM HCC. Under consent condition 24 agreed by Council in December 1996 this was supposed to be part of a specific “revegetation plan”. The approved plan dated April 1996 at map 2 of 3 does have a “REHABILITATION PLAN” and “REHABILITATION NOTES” but it is arguable this is not the “Revegetation Plan” one would expect in an environmental study for the development.

 

-          Tailings: Additionally this HCC report, and the s.96 application, whether by environmental study or otherwise does not get to grips with the adverse situation regarding tailings. There is a historic failure to follow the approved stages as regards siting of tailings approved for 14 to 20 metre depth (for instance due to no crown consent). Silt has been located at risky and dangerous sloping 1 to 4 metres depth (from water surface) to about 7-10 metres depth in stage 1 of the ‘lake’ according to MD Tom Bruce to a meeting of HCC full council, and his letter dated 2nd May 2005. This new application fails again to address where the tailings will go to achieve a practical and safe final landform and one is left with the strong suspicion it will be the same dangerous result close to the lake surface.

 

We note the DECC (Kieran Horkan) at the Chris Jewell late 2007 briefing at HCC also sought as small a lake final landform as possible, confirmed in their 2006 submission (at page 2 there) which has major implication for the safe siting of the tailings relevant to depth given evaporation in the future. DECC letter reads 17 Sept 2008

 

“As part of the remediation action plan to minimise evapotranspiration from open water DECC recommends that open water areas be reduced as much as possible;”

 

The tailings issue by itself is probably enough to show it’s not the same development. This could expose council to major legal liability in the future final landform for allowing such a dangerous situation to proceed for instance if a child was bushwalking and went for a swim in the “lake” and was sucked in by the tailings and drowned.

 

 

When Council is considering if the modifications can be dealt with by way of a S96 Modification the following matters are to be considered

 

 

Is the change in the proposed area of extraction so substantially different as to constitute a

new development.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 42

 

 

The original EIS document proposed the extraction of 3,000,000 tonnes (Approval granted for 2,000,000 tonnes) of sand and in Section 3.1 indicated it affected an area of approximately 22ha or 25% of the property.

 

The applicant's consultant (Port Stephens Design Services) provided a further letter and plans that indicated the development site area of 14ha. The applicants current consultant (Umwelt) has indicated that the two base maps in the EIS (Figures 7.5 and 7.6) show a proposed extraction area of approximately 14.5ha (Figure 7.5) and 15.6ha (Figure 7.6).

 

The EIS in sections 5.1.3 and 5.25 indicates the ultimate aim is to excavate an area of approximately 15ha and convert it into a lake.

 

With respect this 15 ha lake in an EIS diagram is not the applicable area to compare with the new development modification. Rather the approved area is “PS91E130 dated April 1996” and the lake is apparently of 11 ha, not the EIS bid for 15 ha as the correct comparison. This is confirmed by letter of MD Tom Bruce for Birdon dated 2nd May 2005 to Greg Hall/HCC, to quote:

 

 “The EIS proposal was to cover 22 hectares with 15 hectares of lake on completion. [new para] The old works area only covered 15 hectares with less than 11 hectares of lake.”

 

 

See also his letter of 30 August 2005 that approved plan did not match EIS area sought.

 

In addition in email correspondence dated recently

 

From: ecology action australia

To: chris jewell

Cc: @pikepikefenwick ; Kirsty Ruddock

Sent: Thursday, October 09, 2008 9:28 PM

Subject: attn Chris Jewell re HCC planner Owens divergence with your number re Tinda Ck water loss

 

Attn Chris Jewell hydrologist for HCC re Tinda Ck

 

Dear Chris

 

I write as court agent for Neville Diamond. We attended the information session at HCC when your report was presented in mid 2007.

 

Could you let us know if you stand by the '22 ha lake final landform' area figure mentioned at section 4.1 in second last paragraph to that section on page 11:

 

  "If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow to Tinda Creek would be 204 ML/year, or 53 per cent."

 

We ask because chief planner at HCC has written in his report of July 2008 that "The final landform involves aproximately 15ha" at p45 29 July 2008 HCC business paper. He relies on this to assert the lower water loss rate (still large) of 37% to Tinda Creek applies to the final landform.

 

We will be relying on your report and if you don't want to stand by that evidence it would seem wise to let us know asap. Suffice to say we accept your report on face value as the expert evidence in this matter and your statement:

 

Our reading of the s.96 modification application (Umwelt letter 11 July 2006) with a diagram SK2 (attached) indicates at least to us such an expanded extraction area of 22-ha. Similarly the "Final Waterbody" diagram attached to the HCC report of planner Owens at page 73 also indicates an expanded larger area more like 22 ha rather than 15 ha - at least to us.

 

(By the way we can categorically prove that SK2 was never (contrary to representations in the Unwelt s.96 application) the approved plan diagram when consent was granted way back in 1996. The approved plan was actually identified by job number and date in the original consent as "PS91/E130 dated April 1996". SK2 has the same job number to be sure but there is no ambiguity because it is undated. It is demonstrably not the approved plan in the consent.)

 

(Mr Jamieson of Unwelt, we feel, may need to be consulting his lawyers regarding clause 283 of the EP&A Act Regulation 2000 as regards false and misleading material under the planning regime which is a serious offence.)

 

Please do not hesitate to contact the writer by return email or tel 02-9558 9551 and 0410 558838.

 

Yours truly, Tom McLoughlin, court agent for Neville Diamond, objector Applicant in Diamond v Birdon Contracting Pty Ltd & Hawkesbury City Council 40733 of 2008.

 

PS You may be interested in these two community news stories

 

CC Stephen Griffiths, solicitor for HCC

 

…………………….

 

Chris Jewell responded as follows referring to Figure 4

 

From: Chris Jewell

To: ecology action australia

Sent: Monday, October 13, 2008 2:21 PM

Subject: Re: attn Chris Jewell re HCC planner Owens divergence with your number re Tinda Ck water loss

 

Dear Tom,

 

Using some simple geometric approximations, the "Final Water Body" shown on Figure 4 appears to have an area of approximately 17 ha.

 

Chris.

……………………….

 

Jewell appears to be referencing Figure 4 of Umwelt letter of 24 July 2007 for Birdon, which appears to be diagram AT-3 Amended Final Plan in chief planner Owens report to full council 29 July 2008.

 

This all leads to the conclusion the final lake form in the application is from 11 ha approved in 1996 up to 22 ha or at the least 17 ha in the modification application.

 

It is submitted this now is demonstrably is a substantial difference given the impact on the world heritage area, other neighbours needs, and impending climate change.

 

 

Based on the above the approved development of the sand quarry involved 2,000,000 tonnes of sand over an area of approximately between 14 to 15.6ha.

 

No.  17 to 22 ha, especially given lack of efficacy in rehabilitation since 1996 suggesting it will all end up as lake.

 

The applicant’s current consultant has modified the extraction sequence as shown in the Attachment to this report. The proposed modified sequence now occurs over approximately 15.6ha area.

 

No.  17 to 22 ha, especially given lack of efficacy in rehabilitation since 1996 suggesting it will all end up as lake.

 

The area under the existing silt pond and processing plan area is not proposed to be extracted due to the depth of silt that exists in this area.

 

This is highly problematic departure from the original approval which sited silt at 14 to 20 metre depth in the crown land area, not just to allow room for sand extraction but to ensure the silt was safely deposited at 14 metre depth. Safety relates to wildlife both mammals and birds but also people who might visit in the future.

 

By glossing the current silt location a mere 1 to 4 metres below surface in the current development depending on evaporation rates and climate factors, as if this can be repeated in the expanded development at only 1 to 4 metres, is unacceptable, and dangerous.

 

This could expose council to major legal liability in the future for allowing such a dangerous situation to proceed for instance if a child was bushwalking and went for a swim in the “lake”.

 

The final landform shown in the Attachment consists of a lake/pond with a surface area of approximately 14.6ha with the area currently occupied by the silt pond and processing plant being rehabilitated.

 

No, Jewell advises at least 17 metres and given lack of efficacy in rehab to date in reality 22 ha lake final landform.

 

The modified area of extraction has overall not substantially altered from what was contained and

approved in the EIS being between approximately 14ha to 15.6ha of land. The amended sequence of mining is approximately 15.6ha.

 

Disagree as above.

 

The applicant wishes to transfer a section of the area approved for mining but not yet mined to another section of the site.

 

Actually the swap area “approved for mining but not yet mined” has been partially mined as admitted in the Umwelt letter of 24 July 2007 to quote:

 

“5.0 Plan of Existing and Proposed Extraction

 

The area under the existing Silt Pond [as per Figure 3 proposed modified extraction sequence] is not proposed to be extracted due to depth of silt that exists in this area.”

 

The silt pond is a significant size as per diagram of stage 3 of Port Stephens Engineers dated 29/1/04. In other words significant extraction has already occurred to make the silt pond. This could be to a depth of 10 metres or 14 or 15 metres assuming a stop at the crown land level. This is not a genuine swap of mined for unmined land.

 

 

 

The total area to be mined remains substantially the same.

 

As a result the modified area for sand extraction is not considered to be substantially different based on the area of extraction and would not constitute a new development application.

 

We disagree as above.

 

Is the proposed rate of change of tonnage extracted substantially different so as to constitute

a different development application.

 

The modification application does not propose to increase the total amount to be mined as approved by the Development Consent being 2,000,000 tonnes. The modification does seek to increase the maximum tonnage per year from 100,000 to 125,000. This is due to the increase in weight the cartage trucks can now haul on public roads.

 

The overall traffic movement of trucks will not alter.

 

The increase in yearly tonnage may shorten the life of the quarry. As a result the total tonnage to be extracted does not change and it is considered the modification is not substantially different so as to constitute a different development application.

 

The table below shows a comparison of the approved and modified development based on extracted area and total tonnage to be removed.

 

Area of Extraction Total Tonnage

 

Approved 14.5-15.6ha 2,000,000

Amended 15.6ha 2,000,000

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 43

 

When one compares what was approved with the original DA with the modified application the modified application is seen to be substantially the same and not substantially different to the approved development.

 

It is considered that the application can be considered under Section 96 of the EPA Act.

 

We disagree with the factual analysis of the test for s.96 modification based on EDO analysis, our own analysis re tailings, increase lake size given climate change imperatives etc. However even if the Owens report is right we submit there are other serious legal problems before considering the application including:

 

-          lack of crown consent

-          lapsing for breach of condition 4 (in the section following).

 

Lapsing of the Consent

 

A legal opinion from the Environmental Defenders Office Ltd to Mr Diamond has been submitted which indicated that as no approval was granted as required by Condition 4 prior to the works commencing the Development Consent DA0134/95 has lapsed.

 

Condition 4 States:

 

"Erosion and sedimentation devices shall be installed and maintained during construction and

ongoing operations. Details shall be submitted and approved by the Department of Land and

Water Conservation prior to any works commencing."

 

Erosion and sediment control plans were submitted to Council as part of the original development

application. These plans were the subject of discussions during a mediation conference prior to the application being considered by Council. The outcome of the mediation conference was the inclusion of the second sentence in the condition that requires the approval of the Department of Land and Water Conservation.

 

Council does not have any records of amended plans being submitted and approved by the Department of Land and Water (Now Department of Water and Energy) as required by this condition. The Department of Water and Energy (DWE) have been consulted on two separate occasions to ascertain whether amended plans were lodged with the Department, and Council has received three separate letters from DWE in relation to this matter with at least two of those letters providing conflicting advice.

 

The first contact from Council resulted in a letter being received 25 June 2007 stating:

 

"A review of files in this matter has found that in 1996/97 the Department provided advice to Council, received copies of the Erosion and Sedimentation Plans (as required under DA134/95 Consent Condition 4) and undertook discussions and inspection of the site. In its working with Council the Department did not raise any significant concerns in this matter, implying support for the plan and its implementation."

 

Despite no request being sent from Council a second letter from the Department was received, dated 17 September 2007, stating:

 

"While DLWC received and reviewed plans (December 1995 and July 1996), there is no indication that DLWC received details as required by Condition 4 or provided the approval sought by Condition 4,subsequent to the consent determination."

 

Mr Bruce claimed in writing to HCC dated 10/3/07 that he contacted officer Greg Brady from DLWC asserting Brady ‘verbally approved the erosion/sedimentation control plans in 1997’. Mr Diamond contacted Mr Brady in mid 2007 and Brady categorically denied any verbal approval of such plans.

 

Mr Diamond then contacted Mr Bruce by fax that Brady categorically denied any approval.

Diamond also wrote to Minister Koperberg and Rei Caldwell, senior compliance officer at DWE, to correct the claim being made by Mr Bruce about Greg Brady’s alleged verbal approval.

 

The letter of 17 Sept 2007 from Marwan El-Chamy of  DWE to HCC was then sent with the correct position of no approval.

 

Only then did Mr Bruce swear an affidavit claiming a different unidentified officer visited the site and gave approval.

 

El-Chamy confirms the position of no approval with another letter to Owens/HCC dated 3 March 2008, as follows:

dwe3march2008.jpg

This corroboration is not referred in the council report with the Dept’s categorical position of no compliance with consent condition 4.

 

These two letters provided conflicting advice and the matter was discussed with the applicant to clarify the situation. On 5 November 2007 the applicant submitted additional information in relation to the application that included a Statutory Declaration, dated 22 October 2007, that detailed the applicant's recollection of the facts in relation to compliance with Condition 4 of the development consent. This Statutory Declaration was referred to the DWE on 30 November 2007 as there was a reference to erosion and sediment control plans that had been recently viewed in the Department's Parramatta office. The response from DWE, received at Council on 7 March 2007, stated the following:

 

"Notwithstanding claims made by Mr Bruce in his declaration, the Department is unable to locate any documentary evidence to support Mr Bruce's claims.

 

Discussions with staff involved in the Tinda Creek matter at the time in question have also failed to substantiate Mr Bruce's claims of a verbal approval by a Department Officer."

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 44

 

Although the details in the Statutory Declaration by the applicant are not questioned, there does not appear to be satisfactory evidence that indicates that the Condition 4 requirement to submit erosion and sediment control details and obtain the approval of the Department of Land and Water Conservation has been complied with.

 

On the contrary the Statutory Declaration of Mr Bruce appears to be unreliable in light of the denials by officer Brady and supported by correspondence twice by senior officer El-Chamy of DWE.

 

The requirements of Condition 4 of the Development Consent must be complied with prior to any works commencing on the site following issue of the approval. As this requirement has not been complied with, the Development Consent has, technically, not been commenced and, as such, it is considered that the Development Consent has lapsed.

 

This non compliance of condition 4 is not merely technical or trivial. In the late 80ies the previous operator Stout/Poyneed Pty Ltd partners of Birdon until 2004 were fined $10,000 for water pollution. The obligations to prevent this happening again are in the EIS in 1995 and incorporated into the development by consent condition 1.

 

The EIS at page 12, paragraph 8 it says that various measures will be undertaken in such a plan,:

 

“during the modification of existing channels, the water quality in Tinda Creek will be protected by a series of hay bales [should be straw bales under DLWC guidelines] located at various points along the associated watercourses until the vegetation on any new batters or surfaces has been established.

 

“The devices will be constructed withy the requirements of Soil Conservation Service and will be regularly inspected and maintained, particularly after major storm events.

 

“Monitoring ponds [never in place] will be located downstream of the development to determine the effectiveness of the sediment control devices. ….

 

In summary, Water Management at the site is generally limited to avoiding siltation of the adjacent streams so there will be no impact on the aquatic ecosystems.

 

3.10 Environmental Management Plan

 

The main environmental concerns with the Development are the siltation of Tinda Creek, water quality, flow regime and the rehabilitation of the site.

 

To Monitor the siltation, concrete ponds [never in place] will be constructed at the site and the volume of silt removed at quarterly intervals [never conducted] will be recorded against the rainfall for the corresponding period.”

 

All of these concerns inform a genuine plan under consent condition 4. Similar obligations are found in the EIS at page 13 and 22 regarding modification of the existing channels:

 

“It is proposed to upgrade the existing diversion drain to ensure that flood waters … do not enter the site.”

 

In Birdon’s letter of 2nd May 2005 the company admits they moved the channel 40 metres to the east of that shown on the site plan with work commencing in 1997.

 

The evidence shows Birdon have deliberately avoided their obligations under condition 4 to provide plans while radically altering  the creek and channel.

 

Loss of Water to Tinda Creek

 

Agree with expert Chris Jewell’s report, however the HCC report skips some important aspects below.

 

Concerns have been raised in respect to the mining activity causing the loss of water to Tinda Creek that flows through some adjacent properties.

 

In response to this issue Council commissioned Mr Chris Jewell to undertake an independent assessment of the impact on the ground water and the existing creek system and local water bodies that are adjacent to the sand mining operations. The assessment was to provide Council with advice to assist in resolving some of the issues in relation to this matter.

 

Mr Jewell met with the respondents and applicant on site to hear their concerns and inspect the quarry operation and the respondents properties. At the meeting all persons were given the opportunity to express their concerns on the ground water and flows in Tinda Creek.

 

A further meeting was held with all the persons who attended the site meeting and the consultant to discuss the final report that was presented to Council.

 

The report has discussed the potential impact on the groundwater system and includes site water balances for a range of scenarios as indicated below:

 

Pre-development

Current Operational

Final Operational

Post Closure

Post Closure (proposed)

 

The quarry has the potential to impact on the groundwater water balance and the water balance

assessment provides values for:

 

Precipitation

Evapotranspiration

Bare Soil evaporation

Open water evaporation

Export

Outflow to Tinda Creek

 

The conclusion of the report is produced below.

 

"Although an assessment of the site water balance indicates that it is unlikely that, to date, the quarry has had a significant impact on the water balance of Tinda Creek, as the operation proceeds, evaporative losses from the ponds will increase and the reduction in outflow from the upper catchment to Tinda Creek will become significant. If the site is closed with a water-table window lake remaining, then a long-term reduction of the order of 37 percent of the original outflow from the catchment upstream of the quarry is possible. Losses will be higher if the final landform includes a lake extending across the entire 22ha site.

 

It is unlikely that the site operation will impact on groundwater quality provided that the requirements of the site's Environment Protection Licence are followed. Any impact on ground water quality would be

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 45

 

manageable within the site boundaries provided that it was detected promptly, by a groundwater

monitoring program."

 

 

The final landform involves a lake of approximately 15ha.

 

If the lack of efficacy by Birdon in the past regarding failure to rehabilitate as per the staged approval continues then a lake open window of water of up to 22 ha could well be expected to result.

 

The HCC report here omits expert Jewell where he states specifically at page 11

 

“If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow of Tinda Creek would be 204 ML/year, or 53 per cent.”

 

Chris Jewell in correspondence to us extracted above maintains the final landform is at least 17 ha based on Birdon/Umwelt’s own final landform diagram, which is up from 11 ha in the EIS/approved plans.

 

The water loss is likely to be greater than 37% and closer to 53% which is unacceptable.

 

Further we have advised council of CSIRO report of July 2008 that expected extreme temperature events are to be much more frequent, and drought conditions are likely to be once in every 2 years up from once in every 20 years. This calls up directly the imperative of the the precautionary principle to limit water loss as much as possible.

 

References are here for the CSIRO report [embedded link]:

 

06 Jul 2008       Droughts to be more severe and occur more often in the Future

 

which leads to this [embedded link]:

 

An assessment of the impact of climate change on the nature and frequency of exceptional climatic events

which leads to this a 30 odd page pdf file [embedded link]:

An assessment of the impact of climate change on the nature and frequency of exceptional climatic events  PDF [2.5mb]

 

 

 

This climate change factor and was instrumental in a recent court decision of former Liberal Environment Minister Tim Moore as Commissioner in the Land & Environment Court to support local farmer objectors as follows in (embedded link) David Kettle [agent for Coca Coca Australia Pty Ltd] v Gosford City Council decision of 1 October 2008 by extending a strict trial on Coca Cola water bottling for another 3 years to 2011:

 

" [Moore C, Taylor C] 32 In response to a question in relation to ground water recovery rates, Mr Lane [single parties expert] confirmed that he had assumed a continuation of past rainfall and aquifer recharge patterns.

33 The most recent information published by the Intergovernmental Panel on Climate Change makes it clear that the validity of such an assumption is improbable. Recent observational data show that relative to the worst-case scenario model developed by the IPCC, climate change is occurring more rapidly and at a greater magnitude than anticipated. These recent significant upwards increases in climate change rates coupled with an inherent uncertainty associated with the limited temporal data elucidating the ground water-extraction relationship, direct us to consider the matter with caution.

34 In BGP Properties Pty Limited v Lake Macquarie City Council (2004) 138 LGERA 237,
[2004] NSWLEC 399, McClellan CJ made the following relevant observation with respect to the consideration of an appropriate level of caution in such matters:

113. In my opinion, by requiring a consent authority (including the Court) to have regard to the public interest, s 79I(e) of the EP&A Act obliges the decision-maker to have regard to the principles of ecologically sustainable development in cases where issues relevant to those principles arise. This will have the consequence that, amongst other matters, consideration must be given to matters of inter-generational equity, conservation of biological diversity and ecological integrity. Furthermore, where there is a lack of scientific certainty, the precautionary principle must be utilised. As Stein J said in Leatch, this will mean that the decision-maker must approach the matter with caution but will also require the decision-maker to avoid, where practicable, serious or irreversible damage to the environment.

114. Consideration of these principles does not preclude a decision to approve an application in any cases where the overall benefits of the project outweigh the likely environmental harm. However, care needs to be taken to determine whether appropriate and adequate measures have been incorporated into such a project to confine any likely harm to the environment.

[later in the judgement Commissioners Moore/Taylor go on to say:]      

39 We do not express our conclusion in precise terms as being a response to the precautionary principle (and without undertaking a rigorous analysis of whether or how that principle should be applied to this operation in light of the totality of Mr Lane’s evidence). However, we have concluded, consistent with the approach inherent in McClellan CJ’s observation, that this approach is the appropriate balance after weighing up the evidence of Mr Lane and the Department’s past estimate of the volume of water capable of being extracted from the aquifer without damaging it [on one hand] and the broader scientific uncertainty about the extent to which climate change is highly likely to continue modifying rainfall and inturn impact potentially on the health and resource capacity of this aquifer [on the other hand].

 

 

The report also proposed a number of recommendations which are produced below:

 

"7.1 General Recommendations

 

It is recommended that:

 

Dams and drains on the site and adjacent properties that do not serve any useful purpose should be removed. If necessary the assistance of the Department of Water and Energy in implementing this recommendation should be sought.

 

A groundwater monitoring program be implemented, and this program include the construction of six properly designed and constructed groundwater monitoring boreholes, and regular monitoring of groundwater levels and groundwater quality.

 

The recommendations of Umwelt (2006a) with regard to regrading of the diversion drains be

implemented.

 

A new environmental management plan for the sand operation be prepared, incorporating the

recommendations of this report, including those for groundwater monitoring, and that the plan be

reviewed by Council.

 

An annual independent audit of the implementation of the Environmental Management Plan be

carried out.

 

An appropriate quarry closure plan detailing the eventual closure of the site at the completion of

extraction operations be prepared now. This requirement is consistent with good industry practice.

 

The plan should seek to minimise long-term impacts on the hydrology of Tinda Creek.

Council does not consent to changes to the approved development that result in a larger area of

open water in the final landform that is currently approved, unless the proponent can demonstrate, using a more sophisticated and site-specific water balance than is presented in this report, that the final landform will not result in lower catchment outflows to Tinda Creek. Preparing a better water balance would require the collection of site-specific hydrological data over a period of several years.

 

7.2 Ground Monitoring Recommendations

 

It is recommended that a network of six groundwater monitoring boreholes be installed. Appropriate locations are shown on Figure 4, but some flexibility in siting is possible.

Monitoring boreholes should be 12 metres deep, screened from 2 to 12 metres, and be constructed as standard groundwater monitoring wells, with:

 

50-mm uPVC screw-jointed casing and screen

an appropriate filter pack

bentonite annular seals

lockable monuments

 

Groundwater levels should be monitored monthly.

 

Groundwater quality should be monitored six-monthly.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 46

 

Groundwater quality monitoring should include pH, conductivity, nitrate, ammonia and Total Petroleum Hydrocarbons(TPH).

 

Groundwater quality monitoring should be reported annually."

 

Agree with Chris Jewell’s recommendations except they have limited application because the consent is inoperative.

 

Matters raised by Mr Diamond’s Submissions

 

Mr Diamond has in respect to the S96 application and the quarry operation has lodged at least 30

submissions. Some of these submissions were lodged multiple times with Council, Councillors or individual staff. The submissions were lodged as a letter with a number of attachments which involved former submissions or copies of letters from other Government Authorities.

 

A review of the submissions received from Mr Diamond has found that there are common issues raised in each submission, but expressed in different ways. To clarify the matters raised they have been summarised into groups as follows:

 

 

General Complaints Against Individuals (Councillors and Former Staff)

 

1. Council at its meeting of 14 December 2004 was misled and lied to when it was stated that the mine is not operating in groundwater.

 

2. Formal complaints against former Council staff, including the former General Manager, former

Director, former Manager and town planner and a current Councillor.

 

3. The previous undertaking by a former General Manager to independently investigate complaints has not been undertaken.

 

4. Council has never investigated any of the complaints made.

 

5. Complaint by Danny Pullicin (an adjoining neighbour to the quarry) has not been investigated.

 

6. Council reports re Tinda Creek have been fabricated to protect Birdon Contracting, either negligence or a Councillor was paid to do work for previous owner.

 

7. Fraud by Council staff for not collecting correct fees for S96 applications.

8. Council has not verified the EDO legal advice dated 27 September 2006.

 

9. General complaints re staff handling of supervision and compliance with consent.

 

10. Several allegations that involve persons “associated” with the quarry.

 

11. Staff may be personally liable for fines.

 

Complaints re Original Application and Consent

 

1. No consent from Crown, as owner of the land, to operate beyond 15.24 metres below natural

surface.

 

2. EIS (1984) made false statements re excavations not in creek.

 

3. November 1995 EIS claimed six monitoring bores to be installed.

 

4. Birdon did not install ground water monitoring bores as agreed to in mediation conference December 1996.

 

1.       Council retrospectively approved Birdon Contracting’s application on 10 December 1996 ignoring legal and ethical responsibilities.

2.        

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 47

 

6. The approval was for staged development and each stage required sign off prior to granting

separate approval for each subsequent stage of work. Work in each stage should not commence

until this separate approval issued.

 

7. Applicant failed to supply archaeological study.

 

Complaints regarding existing Section 96 application

 

1. The current Section 96 application states the quarry is operating to a finished area of 22 ha.

However, the Port Stephen’s letter of 4 June 1996 states only 14ha.

 

2. Diagram SK2, submitted with the Section 96 application, is not the approved document. (See page 2 of Hawkesbury Nepean Catchment Management Trust letter of 12/1/96). Approved plan

PS91E130 shows approved dimensions.

 

3. Legal advice that consent has lapsed, therefore Section 96 cannot be processed.

 

4. S96 application used to cover up out of area works.

 

5. Council cannot grant consent for illegal use of unlicensed water.

 

6. Under Act and Regs any alterations or modifications to a designated development consent, including the current S96 applications requires an EIS.

 

7. Current S96 is not the same development under the Act (See Lloyd J decision re BHSC v Dixon Sands).

 

8. Issues have not been dealt with by Chris Jewell report (specialist report on advice requested by Council) specifically:

a. Tinda Creek is not flowing

 

b. Council and Jewell report fail to deal with the State Government Policy on ground water eco

dependent creeks.

 

c. Failure of Council & Chris Jewell to have access to all relevant information including working

file of the former General Manager.

 

d. Failure of report to deal with Birdon not installing 6 ground water bores.

 

e. River & Foreshore Improvement Act issues not considered.

 

f. States that the Water Act 1912 is the appropriate Act to use in this matter.

 

g. Asks for Chris Jewell report to be revised with above matters considered. Also asks for report

to be peer reviewed by Lionel Ethridge or ERM.

 

9. Suggests that S96 application is false and makes threats that if these are not withdrawn Mr Diamond will notify the Department and the Police.

 

10. Comments regarding the Statutory Declaration by Tom Bruce, indicating that Mr Diamond questions some of the statements.

 

Dealing with legal advice

 

1. Legal advice received from Birdon Contracting, dated 9 November 2000, was not considered

properly or professionally. (Council had not viewed documents advice relied upon)

 

2. Pike Pike & Fenwick of 30/8/05 advised certain action and it was not taken.

 

3. EDO advice (dated September 2006) that consent had lapsed was not acted upon.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 48

 

General Matters

 

1. Council has failed to enforce/comply with the conditions of Land & Environment Court matters 40230 of 2005 & 40430 of 2005.

 

2. There has been fraud in non payment and non indexation of Section 94 contributions.

 

3. Council corruptly ignored breaches since 1984.

 

4. The bypass channel is incorrectly installed and not approved.

 

5. The natural swamp under the power lines has been illegally filled and Council has done nothing to rectify and covered this up.

 

6. GM has not instructed solicitors correctly.

 

7. Council file must be modified as it is false and incorrect.

 

8. Diamond is being threatened because he is pursuing compliance.

 

9. Request meeting with Chris Jewell (water balance consultant engaged by Council) to explain

connection between creek and pond 15m below groundwater and illegal use of 150 ML when only

licensed for 40ML.

 

10. Council ignored responsibility under SREP 20 re erosion control plans and the ground water issues (see Page 19, 31 & Clause 6, Part 2 on page 16 re erosion and control prior to commencement).

 

11. Requests reports from investigations into 5 items listed in Clr Bassett’s undertaking of 13 July 2006.

 

12. Fraud in quantity survey used to calculate tonnages excavated and survey was done after the land was levelled.

 

13. Council staff have ignored tree clearing.

 

14. Allegations of drug dealing, standover tactics, arson, death threats from the operators or persons related to the quarry operations.

 

Consent Condition Compliance

 

1. Council has failed to enforce conditions of development consent.

 

2. Condition 4 not complied with, therefore consent has lapsed. Comments related to Statutory

Declaration by Tom Bruce stating that it is misleading and false.

 

3. Condition 27 required an environmental management plan but this has not been submitted.

4. Condition 17B – requires submission of monitoring program details for ground and creek water

quality & contingency plan.

 

5. The quarry is working out of the development approved area.

 

6. Quarry using more water than licence permits.

 

7. The Tinda Creek quarry is operating on Lot 1 (by-pass channel & test bores) and Lot 3 (Test Bores) and Council should take action for this to cease. Should be operating only on Lot 2 DP 628806.

 

8. No EPA or DLWC licences until 2004.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 49

 

9. On 4 December 2004 Council insisted that erosion & sedimentation control plan should be submitted re conditions 1, 2, 3, 4, 17b and 27. This not yet done.

 

10. Council staff failed to properly instruct solicitors re erosion & sedimentation plans and compliance with conditions 27 or 17b.

 

11. Auditor has defrauded Council in not mentioning the shortfall in S94 fee collection.

 

Comments on specific issues raised by respondent

 

General Complaints against individuals (Councillors and former staff)

 

1. Council at meeting of 14 December 2004 was misled and lied to when it was stated that the mine is not operating in groundwater.

 

The tapes from the Ordinary meeting of 14 December 2004 and the General Purpose Committee

meeting of 27 November 2004 have been reviewed. Whilst not all of the tapes were audible, much of the comments and debate relating to the Tinda Creek quarry matter was audible. The comments on the tape used words to the following effect:

 

“In my expert opinion, the operation runs fairly well. Does not appear to be any escape from the

mining operation sites which is a wet dredge operation adjacent to a dam which flows into where the dredging is operating. The tailings, the extraction area drains to a separate set of dams and is

sealed. No water escapes. Tinda is some distance away from the operation. No sedimentation."

 

There was no evidence found on the tape that advice or comments on groundwater in the fashion

suggested was given at the Council meeting.

 

Disagree, Diamond’s CD copy of the audio suggests otherwise.

 

2. Formal complaints against former Council staff, including the former General Manager, former

Director, former Manager and town planner and a Councillor.

 

These complaints and allegations are in the form of statements and were not backed by any form of proof from the respondent. However, the respondent has been advised previously by the current General Manager that no action could be taken under Council's code of conduct as there would be limited, if any, sanctions that could be taken against former employees even if any allegations, hypothetically, gave rise to concern. Mr Diamond was also advised that if he had evidence of corrupt conduct of any former staff that he should refer these complaints to the ICAC.

 

Disagree, refer 5 year delay in processing s.96 modification lodged late 1998 decided in 2004 despite DA approval lapsing. Similarly refer EDO letter of advice dated 29 Nov 2004. Stephen Enders planning officer HCC letter of 25 June 1999 that the consent was lapsed.

 

3. Council has never investigated any of the complaints made.

 

 

4. The previous undertaking by a former General Manager to independently investigate complaints has not been undertaken.

 

See response above. The respondent has made a variety of allegations about Councillors and

Management but has not supplied sufficient details or proof of any of the allegations. Much of the

information supplied has been in the form of "draft Affidavits" that contain a range of statements but lack evidence. The respondent was formally requested by Council's former General Manager for additional information which has not been provided.

 

The respondent has also submitted to Council a letter forwarded to the Independent Commission

Against Corruption (ICAC) in which he has made allegations about corrupt conduct by Council staff and Councillors. The response from the ICAC, in part, was as follows:

 

"You have not provided any information to support your claims despite being requested to do

so."; and,

 

"The Assessment Panel has determined that your complaint not be investigated as you failed

to provide any information to support your allegations and which might tend to indicate corrupt

conduct."

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 50

 

 

The respondent has made numerous allegations and complaints that are attached to this file. A

review of the file indicates that preliminary investigations were made regarding most of these

allegations but did not find substantive evidence to warrant the matter to proceed. The respondent was also requested to supply specific evidence to substantiate the allegations but this evidence has not been provided. Given the lack of substantive evidence and detail of these allegations, it is not proposed to take those matters further.

 

Disagree.

 

5. Complaint by Danny Pullicin (an adjoining neighbour to the quarry) has not been investigated.

 

Council received, on 15 May 2006, an email request for information or assistance in ensuring that

the Tinda Creek remains flowing. The letter states:

 

"As Council is aware the Birdon Sand Mine has Tinda Creek on its site we would appreciate if

council can check The Tinda creek and confirm its no flow status is only due to climate

conditions…. For the first time in 20 years we are witnessing this wetlands (in the adjoining

National Park) drying up."

 

A response was sent to Mr Pullicin on 6 September 2006 stating that the NSW EPA was the

regulatory authority for the water use at this site. It should also be noted that the climatic conditions at that time, as verified in the letter from Mr Pullicin, were extreme. Council monitoring of the quarry operation at that time did not indicate that water use had changed significantly from the last 20 years to indicate that the drop in water flow could be wholly contributed to the quarry operation.

 

Mr & Mrs Pullicin met with the Mayor (Councillor Stubbs) and a Council Officer concerning this issue and it was agreed that Council would engage an independent consultant to investigate the matter.

 

Mr Chris Jewell undertook the independent assessment and Mr Pullicin was involved in the process and provided a copy of the final report.

 

Disagree. EPA don’t regulate water use as such. Rather the DWE/DLWC. Pullicin’s place suffered several suspicious fires after his complaint.

 

6. Council reports re Tinda Creek have been fabricated to protect Birdon Contracting, either negligence or a Councillor was paid to do work for previous owner.

 

See comments regarding complaints above. These allegations are made as statements in letters or affidavits with no evidence to support the claims. It seems that these statements were made based on the respondent not agreeing with the reports or conclusions rather than being based on evidence to contradict the reports.

 

Disagree.

 

7. Fraud by Council staff for not collecting correct fees for S96 applications

 

Fees for development applications and section 96 applications are set by Statute and relate to the

value of the development with section 96 application fees being either a percentage of the original

application fee or, where a building is involved, a modified scale of fees based on the estimated

value of the development.

 

At the time of acceptance of the original application (1994), Council did not have a system for

checking the estimated value, quoted by the applicant on the original application form, of

developments. At the time of lodgement of the current section 96 modification application, the fee

was based on the appropriate percentage, as set in the Environmental Planning and Assessment

Regulation 2000, of the original development application fee.

 

Council has relied in the past on the honesty of applicants to provide a realistic estimate of

development costs when lodging an application. This approach has been applied to all development applications lodged with Council. An allegation of fraud implies that the way of calculating the fees for the subject or original development application was changed to enable the applicant to be charged a lower rate. As the way of calculating fees for all development applications was the same at the time of lodging the original development application and in the absence of any evidence to indicate the contrary, there does not seem to be any fraud in the collection of application fees.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 51

 

 

It should be noted that Council does recognise that the estimated costs of development quoted on the application form may not be a true reflection of the actual costs. Council is developing a scale of building and development costs with the intention of using this scale of costs as a baseline for checking the estimated costs of developments.

 

This was a complaint directed at Elf Farm Supplies allegedly underpaying, and council failing to address this properly 5 years ago.

 

8. Council has not verified the EDO legal advice dated 27 September 2006

 

The Environment Defenders Office (EDO) provided a legal advice to Mr Diamond on 27 September 2006. This advice was subsequently forwarded to Council. The advice is titled

 

"Lapsing of consent - failure to comply with conditions" and deals with two separate matters being "The Colo Heights Quarry Consent" and "The Mangrove Mountain Quarry Consent".

 

It is assumed that the "Colo Heights Quarry" referred to is the subject quarry at Tinda Creek.

 

The EDO letter refers to Mr Diamond's letter of 5 September 2006 (not provided to Council) and

provides comments on a number of development consent conditions, legislation and case law.

 

The letter concludes the following:

 

"Failure to comply with conditions in the Colo and Mangrove Mountain consents that expressly

require compliance "prior to works commencing" may lead to lapse of development consent. It

is uncertain whether failure to comply with other conditions would have resulted in the lapse of

the consent."

 

It is unclear what the instruction to the EDO are and to what information the EDO had access in

order to provide the advice. Mr Diamond was requested verbally to provide that detail but the

information was not provided.

It is not usual practice for Council to verify all advice, legal or otherwise that is submitted. Any

advice submitted to Council is reviewed and if it is considered that further consideration or additional legal advice is required then advice is sought from Council's solicitors. On this occasion additional advice has been received from Council's solicitors.

 

The issue of effects of the matter of compliance with conditions and lapsing of consent is addressed elsewhere in this report.

 

See comments above, elsewhere in this response.

 

9. General complaints re staff handling of supervision and compliance with consent.

 

This complaint is general in nature and does not specifically nominate individual staff. The

complaint refers to the way the development consent has been enforced and compliance matters

pursued.

 

The file indicates that there have been a number of inspections of the quarry and assessments in

relation to compliance with development consent conditions. (The detail of condition compliance is addressed elsewhere in this report). The areas of non-compliance were discussed with the

applicant/operator and additional information requested. The follow up of these requests could have been more actively pursued by staff at the time. However, it is noted that over the years since approval was granted, due to staff changes, a number of different staff have managed the file. This seems to have led to some confusion or misunderstandings as to what was requested previously.

 

It is conceded that the supervision of the file has not been optimal. However, this has led to this

review and an undertaking by the current staff to improve this supervision depending on the

outcome of this review and the Section 96 application.

 

Disagree.

 

10. Several allegations that involve persons “associated” with the quarry.

 

A number of allegations have been made in regards to the conduct of persons working or

“associated” with the quarry. It seems that these allegations have been sent to Council as a form of ‘character reference’ for the operators of the quarry and the relevance of these allegations to the development consent or the functions and authority of Council is unclear. These allegations are of a

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 52

civil or criminal nature and the respondent is advised to pursue these allegations with the

appropriate authorities.

 

Disagree, Birdon duty of care under consent condition 13 including wide definition of environment to include social impacts as per the EP & A Act 1979.

 

11. Staff may be personally liable for fines, staff may be held responsible for misleading statements made in applications if the application is accepted.

 

These statements are examples only of some of the statements made in a number of the letters by the respondent. Whilst it seems that the respondent is simply pointing out the responsibilities of the staff in these matters, the context and use of some of the statements, ie, when used in conjunction with statements suggesting legal action by the respondent, may be viewed as threats against staff unless certain action, that is consistent with the respondent's requests, is taken. These statements have no relevance to the assessment of the current Section 96 application.

 

Disagree.

 

 

Complaints re original application and consent

 

1. No consent from Crown, as owner of the land, to operate beyond 15.24 metres below natural

surface.

 

The original development application stated that the proposed excavation for the mining operation

was to a depth of 20 metres below the natural surface. At the time of assessment and not until after the determination of the development application it was not realised that the title to the land was limited to a depth of 15.24 metres below the natural surface.

 

In a report to Council on 14 December 2004 there was discussion regarding a site survey, by a

registered Surveyor, Mr Matthew Freeburn, for the purpose of estimating the natural surface of the site prior to the quarry operation commencement to determine the depth and volume of the

excavation. This survey, and recent discussions with the quarry operators, indicates that the depth of the excavation has not yet reached a depth of 15.24 metres below the natural surface.

It may be the intention of the quarry operators to ultimately extend the excavation below the 15.24

metre level. The operator was advised by Council staff that this would not be possible without the

consent of the Department of Lands as owner or a licence from the Department to use that portion of land. A letter was received by Council on 9 May 2008 from the Department of Lands making an offer of a licence authorising the use or occupation of land. Prior to any excavation or occupation of the land 15.24 metres below the natural surface the licence will need to be finalised.

 

Disagree. Consent of part owners such as crown is mandatory under the EP&A Act and Crown Lands Act. See also discussion above re tailings.

 

2. EIS (1984) made false statements re excavations not in creek

 

The current development consent was based on an Environmental Impact Statement (EIS) dated

November 1995. An EIS was prepared in 1985 for a previous development application for the

construction of a Dam and extraction of sand from the site. A review of the 1984 file indicates that

there were some issues in relation to the statements made in the EIS that were addressed in the

assessment of that application. Development consent for DA 0192/85 was issued in November

1986. Following extensions granted by Council, that consent expired in 1991. It is unclear what

relevance the EIS dated 1985, relating to a separate, now expired development consent, has to the current application and approval.

 

Similarly the previous DA failed to obtain a water license for groundwater and therefore lawfully commenced similar to the 1996 DA.

 

 

3. November 1995 EIS claimed six monitoring bores to be installed.

 

It’s true the EIS said install monitoring bores, not six specifically, as per consent condition 1. However the 2005 orders by consent in the LEC required 6 sets of bores as per the Ecowise expert report.

 

4. Birdon did not install ground water monitoring bores as agreed to in mediation conference December 1996.

 

The November EIS stated that "In addition, a series of bores will be installed to monitor groundwater behaviour." (Section 5.1.4. Hydrology. P23). The only other reference to bores in the EIS is in Figure 7.4 - Exploratory Drilling Plan. This plan indicates the location of six exploration bores undertaken as part of the investigation of the sand material for the operation. In addition there are no conditions that require six bores to be installed. Should the section 96 application be approved, the operator has agreed to the installation of monitoring bores.

 

The EIS was enforceable by consent condition 1 keeping faith with the outcomes of the mediation conference of 4/12/96. Thus bores are required under the HCC approval.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 53

 

5. Council retrospectively approved Birdon Contracting on 10 December 1996 ignoring legal and

ethical responsibilities.

 

It is understood that the development application, DA 0134/95, related to an operation that was

already operating without approval. (In this case some works had continued following the expiration of a previous approval granted in 1985) The application was prepared and lodged with Council in accordance with the requirements at the time and the application was determined in December 1996. There does not seem to be any legal requirements that has been breached in this process and the time limit for any legal challenge of the issue of the consent has expired. It is clear that the respondent does not agree with the operation of the quarry at this time. However, there is no indication on the file that the assessment and determination of the development application did not follow the correct process.

 

Disagree re lack of crown consent. Water embargo at the time from DLWC meant consent was inappropriate. No complete frog study. Etc

 

 

6. The approval was for staged development and each stage required sign off prior to granting

separate approval for each subsequent stage of work. Work in each stage should not commence

until this separate approval issued.

 

Condition 3 of the development consent states:

 

"The development approval being limited to a period of two years. Subsequent stages will

require formal submission, under Section "B" of this consent, to Council and supported by

evidence that the operation has complied with the conditions of the State (sic) 1 consent."

 

Whilst the condition states certain requirements regarding staging, the condition does not require a “sign off” and separate approval for each subsequent stage. The condition does require a

"submission" to Council addressing several conditions nominated in the consent.

 

The respondent has argued that the intent of the condition, as discussed in the assessment report for the original development application to Council, was that each stage required a sign off and subsequent development approval of each following stage. The respondent also asserts that a letter from a Council officer at the time of the determination of the application also states that subsequent stages require separate approval prior to proceeding.

 

Whilst the review of the Council officer’s letter may be interpreted in the way that the respondent

asserts, there is doubt regarding that interpretation. However, when the wording of the condition is reviewed it is clear that, apart from the obvious typing error (State rather than stage) the condition is clear regarding the requirements for staging. It is clear from the above condition that, whilst there is a requirement to receive a submission, or “sign off” at a particular stage, the condition does not require a separate approval to be granted for each subsequent stage of development.

 

This matter was addressed in the report to Council on 14 December 2004. The report states, in

part, the following:

 

"Council's legal opinion has suggested that the letter dated 15 December 1998 from the

applicant seeking an extension of the development consent was an application for

modification as it then stood and was made in accordance with the requirements of the

regulations as they stood then. …As a result the application was made prior to the lapsing of

the consent and that Council can still make a determination of the application."

 

The Section 96 application relating to condition 3 of the consent, referred to above, was determined at the meeting of 14 December 2004. The timeframe for any challenge to the validity of that determination has now expired.

 

Does not answer the question, but our legal advice is that compliance with each stage applies before the next stage can commence.

 

Particulars:

1.      Letter 24 December 1996 by Peter Lee, Branch Manager Buiding & Development to Neville Diamond – “The approval is subject to conditions as a Staged Approval for compliance with each stage of the operations.”

2.      Letter dated 20/8/96 by NSW NPWS Lou Ewins Manager Environmental Planning Unit SYDNEY ZONE to GM/HCC: “As noted in previous correspondence, the Service recommends that should consent be given Council should consider a staged approval process with approval of each stage dependent on satisfactory performance of environmental safeguards (as assessed by proposed water quality monitoring) and site rehabilitation.”

3.      Tom Bruce Letter 15/12/98 at last paragraph “...and we seek unlimited time to complete stages with compliance approval as each stage is completed.”

4.      Memo officer Greg Hall of HCC to Malcolm Ryan dated 17/9/2003 “Legal Opinion of the Consent “would be carried out in stages and in recognition of concerns raised by the residents and govt agencies for the development to pollute ….staged approval under Sec 91 AB be permitted … further stages only permitted where the development can illustrate that the revegetation/rehabilitation is taking place ….”

5.      Letter of legal advice by Abbott Tout to GM HCC dated 12 July 2000 to GM -HCC regarding staging and deferred commencement and refers to evidence of meaning contained in the original officers report to full council dated 10 December 1996, and resolution of council same date.

6.      Precedent case of Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd 98/40130 by Lloyd J

 

 

7. Applicant failed to supply archaeological study.

 

The EIS dated November 1995 submitted with the application, contained advice from Dr H

Brayshaw, dated 4 August 1992, in relation to the proposal. This advice referred to a previous study undertaken for the site in August 1984 by the same firm. The advice concluded "Under these circumstances it is our view that no further archaeological investigation is warranted."

 

Additional and

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 54

 

 

amended detail was submitted for the application on 6 June 1996 with a covering letter from Port

Stephens Design Services. In that letter the following statement was made:

 

"Archaeological Survey Consultant has confirmed Development Area covered by study."

 

This conclusion was considered reasonable considering the advice from the National Parks and

Wildlife Service dated 6 February 1992, contained in the EIS dated November 1995 that states:

 

"The archaeological study undertaken in 1984 for the previous operation was considered to be

adequate."

 

In this regard, the applicant has satisfied the requirement to supply an archaeological study. This

information was considered as part of the assessment information prior to the determination of the application in December 1996.

 

Disagree that this is adequate given site expansion is to the east not north west of the site and this would have been an important food gathering site for the Indigenous.

 

Complaints regarding existing Section 96 application

 

1. The current Section 96 application states the quarry is operating to a finished area of 22 ha.

However, the Port Stephen’s letter of 4 June 1996 states only 14ha.

 

This matter is discussed in another section of the report.

 

We address this elsewhere also.

 

2. Diagram SK2, submitted with the Section 96 application, is not the approved document. (See page 2 of Hawkesbury Nepean Catchment Management Trust letter of 12/1/96). Approved plan

PS91E130 shows approved dimensions.

 

It is clear that there are differences in the information submitted with the original application and the Section 96 application. That is the whole intention of the applicant in the submission of the Section 96 application. The assessment of the information submitted with the Section 96 application against the information in the original application is compared as part of the assessment of the application.

 

The letters and statements will be considered as part of the assessment of the current Section 96

application elsewhere in this report.

 

This is actually too generous an interpretation of the statements in the Umwelt letter of 2006 with the s.96 DA. The letter is misleading and deceptive under clause 283 of the EP& A Regulation 2000 because it claims confusion exists over the actual specific approved plan which is “PS91E130 dated April 1996” and misleads about the location and proximity of Tinda Creek. This should be reported to the relevant authority (Dept of Planning, Dept of Local Govt) for possible prosecution of Birdon and or Umwelt. This would be consistent with Council’s code of enforcement policy.

 

3. Legal advice that consent has lapsed, therefore Section 96 cannot be processed.

 

The legal advice referred to is the EDO advice submitted to Council in September 2006. This matter is addressed elsewhere in this report.

 

Agree.

 

4. S96 application used to cover up out of area works.

 

It is correct that the quarry is operating outside the area originally approved in December 1995. The primary purpose of the Section 96 application is to make application to Council to vary the original approval to rectify that encroachment and propose a revised quarry area. It should be noted that the application is for a variation to the quarry location and not the overall quantity extracted from the site or the overall finished area.

 

This has been discussed elsewhere in the report.

 

Addressed elsewhere.

 

5. Council cannot grant consent for illegal use of unlicensed water.

 

This statement is correct. Council is not the consent authority for the extraction of groundwater.

The Department of Water and Energy is the authority that licences the use of groundwater bores

and water extraction. The original development consent contains a condition that requires the

operator to comply with other Government Agencies permits or licences. Should a Section 96

application be approved for the site, this condition will remain and Council will advise the

Department of the quarry variation so that the Department can review the water use on the site.

 

Agree, and say s.96 is inoperative.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 55

 

6. Under Act and Regs any alterations or modifications to a designated development consent, including the current S96 applications requires an EIS.

 

A Section 96 application, by definition in the Act, must be “substantially the same development” as originally approved. It is not a 'development application' but rather an application to modify an

approval. Should this not be the case then a matter cannot be dealt with as a Section 96

modification application and would require a separate development consent.

 

In the case Contrite Quarries Pty Ltd v Wingecarribee Shire Council (2000) 108 LGERA 166 Lloyd J concluded that the requirement for an Environmental Impact Statement in the case of designated development applied only in the case of a "development application". In this judgement, Lloyd J states:

 

"Part 2 of Schedule 3 provides that in the case of alterations of additions to designated

development, if in the opinion of the consent authority, the alterations or additions do not

significantly increase the environmental impact, compared with the existing or approved

development, then it is exempted from the provisions of Schedule 3. The requirement for an

Environmental Impact Statement arises from section 78A of the Act. Subsection (8) provides:

'(8) A development application must be accompanied by:

 

a if the development application is in respect of designated development - an

Environmental Impact Statement prepared by, or on behalf of the Applicant in the

form prescribed by the Regulations, or …'

 

In my opinion, subsection 78A(8) does not apply in this case. The requirement for an

Environmental Impact Statement in the case of designated development applies only in the

case of a development application. This is an application for modification of an existing

development consent. In my opinion, section 78A has no application, and neither does

Schedule 3."

 

It is clear from the above quote from the judgement in the Contrite case that a separate EIS is not

required when an application is a section 96 modification application. This has been verified by

Council's solicitors.

 

Disagree based on EDO legal advice referred to elsewhere.

 

 

7. Current section 96 application is not the same development under the Act (See Lloyd J decision re BHSC v Dixon Sands).

 

It is assumed that the case the respondent is referring to is Baulkham Hills Council v Dixon Sands

(Penrith) Pty Ltd & ors (1998) NSWLEC 316 (18 December 1998) as this was the only case that

Baulkham Hills Council and Dixon Sands were involved in where the hearing Judge was Lloyd J.

This case judgement has been reviewed. Without discussing the detail of the case, the matter

related to an application to the Court by Council for an order restraining the use of the land for the

purpose of an extractive industry as the development consent had expired. The original

development consent contained a condition that limited the consent to a five year period. The

operator lodged a section 96 application, two months prior to the consent expiring, requesting an

extension to the consent for twelve months to enable them to prepare another development

application for the quarry. The operator then commenced legal proceedings against the Council for not determining the application within the timeframe.

 

Whilst there are some general similarities with this case and the Tinda Creek quarry, i.e, they are

both quarries that are designated development, there does not appear to be any relevance of the

case with the current section 96 application before Council. The previous case related to an

application to extend the time of an expired development consent. The current application is to

modify the area within which the quarry can operate.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 56

 

The respondent seems to be attempting to apply a "question of law" to the section 96 application

when the matter is a "question of fact". The question of whether an application may be dealt with is an individual merit decision that is made by the Council and involves a detailed factual comparison between the development as originally approved and the nature and degree of the proposed alterations. In the case of the current section 96 application, the matter of amending the quarry operation area, within the area studied as part of the original EIS, is considered to be a matter that may be dealt with via a section 96 application.

 

This matter is discussed in more detail elsewhere in the report.

 

8. Issues have not been dealt with by Chris Jewell report (This was a specialist advice report on

groundwater requested by Council staff to assist in the application assessment) specifically:

 

a. Tinda Creek is not flowing

 

The consultant visited the site and was provided with the necessary information to address

the brief for the required work. At the time of visiting the site the creek was flowing. However,

the consultant was aware of the extreme drought conditions that prevailed prior to the site

inspection.

 

b. Council and Jewell report fail to deal with the State Government Policy on ground water eco

dependent creeks.

 

The report was commissioned to provide some specialist advice to Council staff. The report

was not intended to be the full assessment of the application but to merely provide advice on

some matters to staff.

 

The conclusions and recommendation of the report are discussed elsewhere in the report.

 

c. Failure of Council & Chris Jewell to have access to all relevant information including working

file of former General Manager.

 

The consultant and staff were provided access to all relevant information in order to undertake

the necessary work.

 

The consultant was also provided the information submitted by Mr Diamond and the applicant

after the site inspection.

 

d. Failure of report to deal with Birdon not installing 6 ground water bores.

 

As mentioned previously, the EIS required additional bores should certain conditions prevail.

 

These conditions have not occurred and, as such the bores have not bee required to date.

 

The Jewel report has recommended the installation of monitoring bores (less than six) and the

applicant has agreed, should the Section 96 modification application be approved, to comply

with the recommendation of the report.

 

6 sets of bores are required by the orders by consent of LEC made Sept 2005 in Diamond v Birdon 40230 of 2005 and 40430 of 2005, cross referencing the recommendations made by expert consultants Ecowise at order 4 a.

 

Bores generally are required by the EIS of 1995 enforced by consent condition 1 of HCC approval late 1996.

 

e. River & Foreshore Improvement Act issues not considered.

 

If Birdon had addressed this it would have generated the detail it needed to comply with consent condition 4.

 

f. States that the Water Act 1912 is the appropriate Act to use in this matter.

 

These two comments have been made in relation to the section 96 modification application.

The provisions of these Acts, whilst they apply to aspects of the original operation and

development approval, they are of only minor relevance to the modification application.

Licences are required for the use of groundwater and approval is required for works that

interfere with an aquifer. The appropriate approvals and licences are a requirement of the

existing development consent condition No.30. This condition would not be amended should

the section 96 application be approved and the operator is responsible to ensure that the

appropriate licences and approvals are obtained. A copy of the section 96 application was

referred to the Department of Water and Energy for comment.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 57

 

g. Asks for Chris Jewell report to be revised with above matters considered. Also asks for report

to be peer reviewed by Lionel Ethridge or ERM.

 

As mentioned previously, the Jewel report was commissioned by Council staff to assist and provide some specialist advice in the assessment of the application. The report is to be used for advice in the assessment of the application only and does not form part of the application. The findings of the report are not necessarily adopted and only the relevant parts of the report are used in the assessment. It is not considered that it is necessary to expend additional money reviewing a report that is only commissioned for advice.

 

Noted. However the limitations in the Jewell report relate to expert hydrological advice on how best wind up, remediate and rehabilitate the site on the assumption it has lapsed consent and notice to cease to operate is issued.

 

For instance the problem of dangerous shallow silt from 1 to 4 metres below the surface is very serious.

 

The bypass channel has never really worked to maintain the creek flow.

 

Any constructive suggestions Jewell might have on minimising future evaporation which has already exceeded the limits of their water license – in other words filling in the ponds as per normal rehab of 99% of other quarries.

 

9. Suggests that S96 application is false and makes threats that if these are not withdrawn Mr Diamond will notify the Department and the Police.

 

The provisions of Section 283 of the Environmental Planning and Assessment Regulation 2000

provides for the making of false or misleading statements. Council, as provided by the Act and

Regulations, accepts statements made in applications as being true unless there is evidence that

shows this to be incorrect. It should be noted that this does not mean that Council always agrees

with the statements and assertions made in any application. That is the whole purpose of Council

making an assessment.

 

During the assessment of the application the details of the application have been reviewed,

investigated and assessed and there is no evidence that the application is “false”. It should also be noted that there is a difference between making a “false” statement and not agreeing with

statements made in an application. Following assessment of some of the allegations made by the

respondent, it seems that there may be some confusion in this regard.

 

This is insufficient quoting of the section. It refers to false or misleading material.

 

ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2000 - REG 283

283 False or misleading statements

(cf clause 115 of EP&A Regulation 1994)
A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with the Director-General or a consent authority or certifying authority for the purposes of
the Act or this Regulation.

 

 

The s.96 Application was misleading for presenting and relying on a plan SK2 instead of the well defined approved “Plan No PS91/E130, dated April 1996” as per the development consent condition A. 1 of 1996:

 

- thereby suggesting Tinda Creek was 500 metres from the sandmine excavation on DP 628806 when it is adjacent to and formerly through the sandmine site;

 

- falsely suggesting the approved “EXTRACTION AREA” is significantly larger than it is.

 

Particulars

(a)   Umwelt letter of 11 July 2006 with s.96 modification application: Jamieson/Umwelt for the sandminer Birdon write: "The first reason for seeking this modification application is that since consent was granted there has been confusion as to which plan Consent Condition 1 is referring to as PS91/E130 is the Job Number used .... as a result there are many figures and plans showing a range of things that have PS91/E130 on them" [bold added] referred to in the annexure …… above

(b)   Jamieson attaches a convenient diagram called "JOB No. PS1/E130 DRAWING No. SK2" which just happens to show a bigger extraction area than the one approved in the detailed actual DA consent with plan from back in 1996 which is "Plan No PS1/E130, dated April 1996".  The date is all important as the identifer and Jamieson airbrushes that reality. The SK2 diagram also truncates the watercourse of Tinda Creek to a mere 100 metres or so from the Singleton/Putty Rd, when in fact it runs all the way to the now sandmine which interrupts the natural watercourse.  

The diagram later proferred by Umwelt for Birdon in their correspondence of 27 July 2007 to Greg Hall of HCC “Proposed Final Landform” to progress their s.96 modification application, has never been advertised to the public.

 

 

 

10. Comments regarding the Statutory Declaration by Tom Bruce, indicating that Mr Diamond questions some of the statements.

 

It is not suggested that the respondent or Council should agree with all statements made by

applicants or others. However, the applicant for the current Section 96 modification application has, in response to requests for additional information by Council staff, submitted a properly executed Statutory Declaration. This Statutory Declaration sets out the applicants understanding of events in relation to compliance with Condition 4 of the development consent. Whilst the respondent is entitled to an opinion of this Statutory Declaration, the assertion from the respondent that this Statutory Declaration is false is difficult to reconcile as the document asserts the applicant's recollection of events that occurred a number of years ago.

 

This is addressed above in the report. The statutory declaration is unsafe in light of two letters from Marwan El-Chamy in late 2007 and 2008 categorically rejecting the claim by MD Mr Bruce.

 

 

Dealing with legal advice

 

1. Legal advice received from Birdon Contracting, dated 9 November 2000, was not considered

properly or professionally. (Council had not viewed documents advice relied upon)

 

The legal advice received from Birdon dated 9 November 2000 related to the staging of the consent and the validity of the request for extension. This matter has been considered on several occasions by staff and by Council's solicitors (In particular Abbot Tout letter 12 July 2002). Whilst the specific letter from Birdon is not referenced, the substantive issues relating to the advice have been adequately addressed. This led to the approval by Council of the Section 96 application on 14 December 2004.

 

We refer to our affidavit material as follows in the lack of adequate compliance with staging as per the 1996 approval:

 

5. A declaration that DA 134/95 was a staged approval with deferred commencement for each individual stage 1, 2, 3, 4, 5 and 6 dependent on full compliance for the previous stage with (a) the rehabilitation plan and (b) the consent conditions A. 1 to 33 of the consent as set out in the letter of consent from the Second Respondent to First Respondent dated 23rd December 1996 including background in two reports of the Second Respondent of 10th December 1996.

 

Particulars:

1.      Letter 24 December 1996 by Peter Lee, Branch Manager Buiding & Development to Neville Diamond – “The approval is subject to conditions as a Staged Approval for compliance with each stage of the operations.”

2.      Letter dated 20/8/96 by NSW NPWS Lou Ewins Manager Environmental Planning Unit SYDNEY ZONE to GM/HCC: “As noted in previous correspondence, the Service recommends that should consent be given Council should consider a staged approval process with approval of each stage dependent on satisfactory performance of environmental safeguards (as assessed by proposed water quality monitoring) and site rehabilitation.”

3.      Memo officer Greg Hall of HCC to Malcolm Ryan dated 17/9/2003 “Legal Opinion of the Consent “would be carried out in stages and in recognition of concerns raised by the residents and govt agencies for the development to pollute ….staged approval under Sec 91 AB be permitted … further stages only permitted where the development can illustrate that the revegetation/rehabilitation is taking place ….”

4.      Letter of legal advice by Abbott Tout to GM HCC dated 12 July 2000 to GM -HCC regarding staging and deferred commencement and refers to evidence of meaning contained in the original officers report to full council dated 10 December 1996, and resolution of council same date.

5.      Precedent case of Baulkham Hills Council v Dixon Sands (Penrith) Pty Ltd 98/40130 by Lloyd J

Chief Planner Owens reference here to the 2004 s.96 approval goes to a 2 year extension of time from the expiration of the 1996 approval taking the DA from early 1999 to early 2001.

 

This raises two serious problems:

 

  1. HCC had constructive if not actual knowledge that condition 4 (erosion and sediment control plans) had not been complied with so there was legal commencement for the 2004 grant of extension to operate upon (confirmed by Owens 29 July 08 report here);
  2. Even if the 2004 extension was valid it only provides an extension for 2 years from Jan 1999 to Jan 2001 and so there is still no operative consent from Jan 2001 onwards to 2004 or indeed now in 2008.

 

The consent has lapsed probably in Jan 1999, certainly by Jan 2001.HCC have been put on notice of this by the EDO letter under the signature of David Jeffery, solicitor dated 29 November 2004 at page 4 under “Other comments”. This letter was in a supplementary business paper to HCC and all councillors provided to them amongst a substantial bundle of other material around 14/12/04. It is marked “PF13”.

 

This holds true regardless of whether a valid application for extension under [s.96, then s.102] was validly submitted in Dec 1998. Until approved they had no consent. 

 

It’s true the Abbott and Tout letter of 12 July 2002 (responding to HCC/Hall letter of 21 May 2002) says council can consider and approve an extension of time, albeit belatedly in 2004 for only 2 years from 1999 elapsing by 2001: Birdon submitted a formal ‘Request to modify development consent’ on 25 January 1999 seeking “an extension of 2 years to complete and rehabilitate “ Stage 1.

 

But this is all theoretical hair splitting. At the most favourable to Birdon (without conceding) the sandmine was operating unlawfully from 1999 until they got retrospective approval in 2004 but only as far as 2001.

 

By 2004 there was no power for council to apply a s.96 modification for stages 2,3,4,5 & 6 authorising mining from 2002 to 2008 because the consent was expired in January 2001. It had to be a new DA and EIS for designated development to commence new stages.

 

Ironically this is exactly parallel with Chief Planner Owens current position on 29 July 2008 that s.96 is inoperative for a lapsed consent (for a different reason – non compliance with condition 4 from 1997 onward).

 

The irony is that the mandatory nature of condition 4 was always a problem in both Dec 1998 and 2004 considerations of any s.96 modifications. The whole framework of approval is a house of cards.

 

 

2. Pike Pike & Fenwick of 30 August 2005 advised certain action and it was not taken.

 

The Pike Pike and Fenwick letter of 30 August 2005 refers to the Land and Environment Court

matter that is discussed in point 1 of "General Matters" below. The letter also suggests that the

matter of a Section 96 application be followed up by Council. Whilst this matter did take some time, a Section 96 application was followed up as it has resulted in the lodgement of the Section 96 application currently before Council.

 

Noted.

 

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 58

 

 

3. EDO advice (dated September 2006) that consent had lapsed was not acted upon.

 

The letter from the Environment Defender's Office (EDO) provided comments, in response to Mr

Diamond's letter of 5 September 2006 (not provided by Mr Diamond) on two separate developments being "Colo Heights Quarry and Mangrove Mountain Quarry". The letter provides a background to development consent conditions for both developments to provide advice

 

 "in particular whether the consents have legally commenced if consent conditions are not complied with."

 

 In the case of the subject development there are comments on conditions 3, 4 and 27. (Whilst these three conditions are mentioned the letter focuses on Condition 4 of the development consent.) Condition 3 has been addressed by Council via a Section 96 application previously in 2004.

 

Disagree. We address the expiry of the DA in Jan 1999 or at most favourable to Birdon by Jan 2001 above. HCC therefore lacked power to grant a s.96 modification.

 

The EDO letter makes the following comments about Condition 27:

 

"Condition 27 of the Colo Consent requires:

 

'a site environmental management plan shall be prepared within one (1) month of the date of this

approval, to address:

 

((a) to (e) list matters the subject of the environmental management plan)"

 

However, there is no reference to the fact that works could not commence before this plan was

prepared."

 

The letter focuses on Condition 4 which states:

 

"Erosion and sedimentation control devices shall be installed and maintained during construction

and ongoing operations. Details shall be submitted and approved by Department of Land and Water Conservation prior to any works commencing".

 

The EDO letter contains quotes from the Environmental Planning and assessment Act 1979 and

quotes from a number of individual cases that dealt with development consent conditions that

required compliance "prior to works commencing" in support of the EDO conclusion. The conclusion of the EDO letter states:

 

"Failure to comply with conditions in the Colo and Mangrove Mountain consents that expressly

require compliance "prior to works commencing" may lead to lapse of development consent.

It is uncertain whether failure to comply with other conditions would have resulted in the lapse of the consent"

 

Advice from Council’s solicitors has been obtained in relation to the EDO letter, particularly in

relation to Condition 4 of the Tinda Creek development consent. A variety of questions and

responses to this matter have been discussed and the outcome of this advice is discussed in the

"Consent Condition Compliance, Condition 4" section of this report.

 

Noted. EDO legal advice agrees with council’s legal advice that consent has lapsed.

 

 

 

 

General Matters

 

1. Council has failed to enforce/comply with the conditions of Land & Environment Court matters 40230 of 2005 & 40430 of 2005.

 

The matters referred to (40230 of 2005 & 40430 of 2005) are consent Orders issues by the land and Environment Court. Both of these matters are identical in the Orders. However, 40230 states

Neville Diamond as the applicant with Birdon Contracting Pty Limited, Poyneed Pty Limited and

Hawkesbury City Council as the first, second and third respondent respectively, and 40430 has

Neville Diamond and Peter Kent as the first and second applicant respectively with the same

respondents as 40230.

 

The Orders issued for these matters set out the undertakings by the Applicant, and the respondents.

 

The undertaking for the Applicant (objector to the current Section 96 application) in both these

Orders are as follows:

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 59

 

a. "The Applicant will not commence any further court proceedings in respect to the development

approval dated 23 December 1996 for DA 134/95.

 

b. The Applicant shall not commence any further proceedings in respect of or in relation to the

issues raised by the applicant in the proceedings herein.

 

c. The Applicant will not commence any further proceedings in respect to the section 96

application which was approved on 14 December 2004.

 

d. The Applicant will not lodge any objection to or raise any issue of fact or law in respect to the

proposed Section 96 Application and or Development Application or any approvals given to

such applications with respect to the relocation of part of the diversion channel of Tinda Creek

onto Lot 1 DP 628806 to amend the excavation area on Lot 2 DP 628806.

 

e. That the Applicant will immediately stop all representations and contact with DIPNAR to

prevent the issue of a Water Licence to the First Respondent or the impositions of any

conditions of such licence."

 

The undertaking of the First Respondent (applicant for the current Section 96 application currently

with Council) are as follows:

 

a. "Implement the recommendations of its consultant "Eco Wise" in respect to the water issues

relating to the operation of the quarry the subject of these proceedings.

 

b. To comply with the conditions of the Development Approval.

 

c. To take all reasonable steps to obtain a Water Licence for the site and shall comply with the

conditions of such Licence relating to the site.

 

d. To regrade within six months of the date hereof (9 September 2005) the diversion channel

where required to assist with the flow of Tinda Creek."

 

The undertaking of the Third Respondent (Hawkesbury City Council) is as follows:

 

"The Third Respondent will properly monitor and enforce as appropriate the compliance of the First Respondent with the conditions of the Development Approval."

 

In relation to compliance with these Orders it is clear that the Applicant (by lodging in excess of 30 submissions to the Section 96 application) has not complied with the Orders, in particular part d. in relation to not lodging objections to the proposed section 96 application. The section 96 application referred to is the application currently before Council.

 

This is contrary to our understanding of the legal situation. Webster SC as counsel for Birdon gave legal advice to Birdon that the so called “orders”  by consent were limited to dismissing the case, costs and “The Court notes undertakings” .

 

Therefore in strict legal terms there were no orders in cases no. 40230 of 2005 and 40430 of 2005 for either Birdon to be in contempt of, or for Diamond to be in breach of under clause 3 (d) referred to by planner Owens here. In effect the undertakings noted by the Court became unenforceable under that judgement. But the breaches of consent conditions were still actionable in a new proceedings including by HCC enforcing it’s own approval which they have declined to do so far.

 

The First Respondent has undertaken some of the matters in the Order and has not complied as yet with the others. The recommendations of "Eco Wise" have not been implemented as that consultant is no longer used by the First Respondent. However, the First Respondent has engaged another consultant to undertake the necessary works.

 

It is inconsistent of HCC’s report to assert Diamond is bound by the (unenforceable) clauses “noted” in the court order but does not hold Birdon as First Repondent to the recommendations of Eco-Wise, given it makes no qualitative difference whether Eco-Wise or some other consultant actually does the implementation.

 

The Council's responsibility to "properly monitor and enforce" the conditions of approval have partly been undertaken, albeit protracted. (However, it should be noted that there is no timeframe placed on this undertaking).

 

We understand Council is still obliged to act in a reasonable time frame and  understand the obligations under the Local Govt Act and it’s own Enforcement Policy to act in a timely way.

 

For instance

 

“Responding to complaints

All action requests or complaints about alleged unlawful activity should be acknowledged with 5 days and a response provided with 21 days on what action Council has taken or plans to take.”

 

And

 

“Enforcement action will be taken with a minimal tolerarance approach.”

 

Monitoring of the quarry operations has been more regularly undertaken over the last 12 to 18 months and condition compliance requests have resulted in the current Section 96 application.

 

Noted, and which cannot be approved.

 

The comments that "Council has failed to enforce/comply with the conditions" of the Orders is not

correct. Whilst the enforcement actions have been slow to date, there is no evidence to indicate that the Orders have been ignored or overlooked. In this case it seems that the respondent (Mr

Diamond) does not agree with the time it has taken to deal with these matters.

We urge HCC to take even stronger and more effective action to further intervene to enforce the planning legislation and protect world heritage area and downstream neighbours.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 60

 

 

2. There has been fraud in non payment and non indexation of Section 94 contributions.

 

This allegation relates to condition No. 8 of the development consent that requires the payment of

Section 94 contributions based on a set rate per tonne of extracted material. The nexus for the

contribution is based on the damage made by haulage trucks to the roads along the principle

haulage route. The contributions, including interest earned, are forwarded to the RTA on a semi

regular basis. The rate, as specified by the condition of consent, is to be indexed each year.

The quarry operator has been paying the contribution on a regular basis and provides the

appropriate receipts. However, the operator has not reviewed the contribution rate since the issue

of the development consent in December 1996. When the respondent advised current staff of this

non-indexation in 2007, the matter was addressed and the rate has been indexed. A calculation of the outstanding contributions has also been undertaken and the operator has been requested to pay the outstanding contributions. This matter is being followed up as a separate compliance matter and legal proceedings to recover the amount will be commenced if necessary.

 

See response to the following Item 12 in relation to total tonnages excavated from the site.

 

Noted. And Diamond can show further evidence of s.94 irregularities based on Birdon’s documentation including survey in 2004 and discrepancies and calculations outlined in Diamond’s fax to previous chief planner Malcolm Ryan dated 7th Dec 2004.

 

3. Council corruptly ignored breaches since 1984.

 

The Macquarie Dictionary defines Corrupt as “Guilty of dishonesty, especially involving bribery”. For behaviour to be corrupt, that behaviour would need to be intentionally dishonest and would involve bribery or some “reward” for acting in a particular way.

 

The review of the files for DA 0192/85 and DA 0134/95 have found various areas of non-compliance since the commencement of works in 1986. Throughout this time the areas of non-compliance have been followed up, with varying intensity, by a number of different staff. The staff changes over the years, combined with low resources to follow up these incidents and the fact that the applicant has lodged a number of different applications, resulting in the resolution of some matters being drawn out over the years have contributed to the, at times, slow compliance of the development.

 

Whilst it is true that the compliance enforcement for this quarry over the years could have been more robust, there is no evidence that the compliance enforcement was, or is, corrupt behaviour.

 

Noted. Agree in part, disagree in part. The ICAC definition varies to the above definition. For instance there is deep concern about the statements of Malcolm Ryan and ex general manager Faulkner on the CD of the audio of the full council meeting of 14/12/04 to the effect that

-  the Birdon quarry was not operating in groundwater,

- Tinda Ck was not affected,

-  Birdon didn’t need a water license,

-  Birdon had not moved the creeek, and

-  the council had the power to grant the s.96 modification of the lapsed consent in 2004

- Ryan assures Cr Rasmussen in answer to his detailed questions that the s.94 payments are in order which has been proven false and needs further investigation regarding Diamond’s advice in letter of 7/12/04.

 

 

4. The bypass channel is incorrectly installed and not approved.

 

It is unclear if any of the operation is operating on the adjoining property being Lot 1. If this is the

case, then those works must either be the subject of another development application (as the

current section 96 application cannot deal with works on another property) or the works must be

removed from the property and the property be reinstated.

 

The application plans do not indicate that the existing bypass channel is located incorrectly. It

should also be noted that the current application is to relocate the bypass channel and the existing channel will no longer be required.

 

It is the case the operation is or has been on Lot 1 and out of area generally. We refer to the Affidavit of Reply as follows regarding both the fact of mining out of area at 16 (a) to (d)  and also the motivations revealed to do so at 16 (e) to (h):

 

16. A declaration that First Respondent has operated on Lot 2 DP 6288806 out of the approved area to the north east of the site, the approved areas being that which is set out in the amended plan no. PS91/E130 by Port Stephens Design Services dated April 1996 as referred to in the 1996 development consent conditions A. 1 and 2.

 

Particulars

(a)   Memo to file dated 10 May 2005 Greg Hall Town Planning Co-Ordinator “Meeting on the 2 May 2005 with Tom Bruce concerning DA 134/95…when the site plan of the EMP is compared with the EIS and approved plans the excavated area is outside the approved plans … Tom in discussion acknowledged that the mining was outside the area shown on the plans (referred to in the consent).”

(b)   Letter 7 November 2005 Greg Hall Town Planning Co-Ordinator to Birdon Contracting Pty Ltd: “It is noted that some drainage works are now being undertaken on an adjoining property and under the provisions of Section 96, Council officers are of the view that the addition of an additional property onto the description of the development consent DA 0134/95 could not be considered under Section 96. In this regard a new development application may be required for proposed works as they cannot be considered with the provisions of Section 96 of the Environmental Planning and Assessment Act.”

(c)   Letter dated 26 June 2007 by Greg Hall Town Planning Co-Ordinator HCC to Birdon Contracting Pty Ltd: “The plan submitted with the s.96 application shows the proposed extraction area being approximately 22ha however the consultant Port Stephens Design Services confirmed in writing that the area of extraction by the original application was 14ha. [new para] The current application to modify the consent proposed to increase the area of extraction from 14 ha to approximately 22 ha. [new para] Based on the information provided with the current application it would appear that the total extraction of 2,000,000 tonnes over 25 years will not be exceeded however as the area of excavation on the site has increased from 14ha to 22ha details need to be provided to demonstrate how this total will not be exceeded with the increase in area of extraction.“  Copy of letter annexure .... mentioned above for particulars of order 1 sought.

(d)   Letter 12 March 2006 Robert Montgomery Executive Manger Town Planning Services  to Neville Diamond: “Council has previously written to Birdon Contracting in respect to use of the adjoining property.”

(e)   Letter 30 August 2005 Tom Bruce - Birdon Contracting Pty Ltd to Greg Hall, Robert Montgomery HCC “Firstly our EIS applied for development of the mining of 22 hectares. Drawings of the mining plan & rehabilitation plan did not indicate this area. This was due to control of the bypass channel [of natural water course of Tinda Creek] around the site so it did not effect the property of the northern boundary.  ....To continue mining to maximum depth we wish to extend mining into the north eastern corner of our 22 hectare mining site. “

(f)     Refer page 3 section 2.2. of Umwelt Australia Pty Ltd report for Birdon dated June 2006 “The location of the diversion drain along the eastern boundary of the current extraction area limits the extent of resource that could be extracted to approximately 15 hectares compared with the 22 hectares identified in the EIS (Port Stephens Design Services 1995)”

(g)   Expert Report of hydrologist Chris Jewell for HCC report of June 2008: section 4.1 in second last paragraph to that section on page 11: "If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow to Tinda Creek would be 204 ML/year, or 53 per cent."

(h)    Misleading and or deceptive so called “confusion” over the 1996 approved plan in the Umwelt s.96 covering letter of 11 July 2006 attaching plan SK2 of the same job number showing a 22 ha excavation site.

 

 

Further the EIS of 1995 at page 12 which is incorporated into the approval by consent condition 1 refers to the modification of existing channels and the need for concrete ponds to monitor the silt under consent condition 4. These have never been installed or reported to council.

 

5. The natural swamp under the power lines has been illegally filled and Council has done nothing to rectify and covered this up.

 

A review of the file for DA 0192/85 indicates that some works were undertaken in the area within the electrical easement located on the property. These works were ultimately granted approval.

 

This is wrong. There is no authority or approval on council file. There is no DA covering this work. This part of the report should be corrected.

 

Following inspection of the current operation, it is not evident when or if any further works have been undertaken in this area.

 

 

6. GM has not instructed solicitors correctly.

 

The manner in which anyone seeks and instructs solicitors is a matter between the solicitor and their client. In the case of Council, there are a variety of matters in which a legal opinion is sought to determine an appropriate course of action. The manner in which the instruction is given relates to

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 61

 

the particular issue at hand. It seems that, following various inspections of the file, the instructions

were adequate and the respondent simply does not agree with the decisions made.

 

Refer for instance above to 2004 approval for modification being inoperative for lapsed consent.

 

 

7. Council file must be modified as it is false and incorrect.

 

The Council file for this matter, like all development application files in Council, is simply a record of correspondence and process for the application. The file contains internal and external

correspondence and file notes by various staff that give a background to how many decisions have been made. It would seem that the respondent does not agree with the decisions made over the life of the file and is implying that the file has been falsely compiled. The review of the file has not found any evidence that the content is false or incorrect but it is acknowledged that the respondent may not agree with many of these views, actions or decisions. In this sense the file is a record of fact and events rather than opinion.

 

Several corrections are justified in our comments made here in red.

 

Also the approval in 2004 is highly irregular and needs to be reconciled in the paperwork.

 

Evidence of operations out of area including lot 1 should be acknowledged.

 

The file should reflect s.94 payment irregulaties.

 

8. Diamond is being threatened because he is pursuing compliance.

 

This is a civil matter that the respondent should seek their own legal advice to resolve and is not

relevant to this application.

 

Noted. Also however consent condition 13 also applies regarding amenity obligations on Birdon under the EP&A Act.

 

9. Request meeting with Chris Jewell (water balance consultant engaged by Council) to explain

connection between creek and pond 15m below groundwater and illegal use of 150 ml when only

licensed for 40ml.

 

Council staff, to assist the assessment of the current section 96 application, sought the advice of an independent consultant Mr Chris Jewell. A report was provided by Mr Jewell and provided to the applicant, their consultant and to objectors to the development. At the request of the respondents a meeting was held on 18 September 2007 with the applicant, respondents and Council staff to discuss the report.

 

The meeting discussed the methodology and recommendations of the Jewell report. The applicant was provided with the opportunity to discuss the findings as were the respondents. The purpose of the meeting was for all interested parties to submit their comments on the report and for Council staff to hear all these comments so that a recommendation could be formulated.

 

The comments provided at the meeting differed widely, ranging from the applicant claiming that the amount of groundwater used was lower than that stated in the Jewell report and the respondents claiming that the water use was higher than that estimated in the Jewell report. The applicant’s engineer submitted evidence to support their claims. The respondents claimed that the quarry was using significantly more groundwater than was stated in the Jewell report and relied on a comment made by a Department of Land and Water Conservation officer in a letter.

 

As the Jewell report was commissioned to provide advise on certain aspects of the assessment, it is not considered to be of benefit to engage the consultant, at the expense of ratepayers, further.

Council staff have considered the report and the claims from both parties and have made a

recommendation that should be contained in a consent condition if the current section 96 application is approved.

 

Refer Affidavit in Reply material as follows:

 

22.  A declaration that the First Respondent is using more water than is allowed by their water licenses.

Particulars

(a)   Refer EDO advice letter of 17 Sept 2007 by principal solicitor Kirsty Ruddock: “Increase in water usage (see report of C. Jewell dated June 2007). In particular, the existing water licences only allow for use of 55 ML of water (see 40 ML licences - ……). The report of C. Jewell dated June 2007 indicates the existing quarry is using at least 98ML”

(b)   Wayne Conners memo for DLWC dated 16 March 2005 states “Net water extraction is therefore 155.5 megalitres” at 30 hours per week. Refer p128 of the First Diamond Affidavit, annexure 14 to that affidavit;

(c)   Ray Bygraves for Birdon at the meeting Sept 2007 at HCC briefing meeting with Chris Jewell said they pumped for 25 hours week.

(d)   From 1996 to 2004 Birdon operated with no water licence, only obtained these after the 2005 consent orders of the LEC in 40230 and 40430 Diamond v Birdon & HCC. The application to the DIPNR for the water license attached a misleading diagram area as to area of approved extraction. Copy is available.

 

23. A declaration that the First Respondent is in breach of their water licenses 10BL162737 and 10BL162738 conditions 9 and/or 10 requiring submission of hours and pumping figures.

 

Particulars

(a)   Affidavit of Luke Phelps for DWE dated 3 Sept 2008 in these proceedings at paragraph 16 cross referring to subpoena to DWE by Diamond paragraph 12 dated 21 August 2008 “a copy of pumping figures including hours required by Birdon ….as set out in the Licenses  10BL162 737 and 10BL162738…” Answer by DWE “”I am informed and I believe that DWE does not possess any such records”

(b)   Copies of licences referred to in (a)

(c)   Diagram from DIPNR file of false alteration to diagram 7.2 “extraction area” viewed by Diamond pursuant to subpoena in 2005 proceedings.

 

 

 

10. Council ignored responsibility under SREP 20 re erosion control plans and the ground water issues

 

(see Page 19, 31 & Clause 6, Part 2 on page 16 re erosion and control prior to commencement).

The development consent for DA0134/95 contains the following condition:

 

"Erosion and sedimentation control devices shall be installed and maintained during construction

and no-going operations. Details shall be submitted and approved by Department of Land and

Water Conservation prior to any works commencing."

 

The fact that this consent condition has been placed on the development consent indicates that

Council did not ignore it's responsibility under SREP 20.

 

The concern is lack of enforcement to date.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 62

 

 

11. Requests reports from investigations into 5 items listed in Clr Bassett’s undertaking of 13 July 2006

 

 This request from the respondent refers to undertakings that were made in 2006. The respondent was questioned about this matter as the undertaking could not be found on Council’s records. It was found that these undertakings were made verbally. However, the matters raised by the respondent are summarised as follows:

 

1. Council has failed to enforce consent conditions and has not investigated non-compliance as set out in Court case 40230 of 2005 and 40430 of 2005.

 

See comment to 1. in General Matters above.

 

2. Explanation of Section 94 “fraud” and non-compliance with consent conditions.

 

See comment to 2. in General Matters above and comments in the “Consent Condition

Compliance” section of this report.

 

3. Allegations that staff lied to Council in the meeting of 14 December 2004.

 

See comment to 1. in the General Complaints against individuals section previously in this report.

 

4. Complaints against former staff and Councillors.

 

See comment to 2. in the General Complaints against individuals section previously in this report.

 

5. Independent investigation into the respondent’s allegations against staff and Councillors.

 

See comment to 3. and 4. in the General Complaints against individuals section previously in this report.

 

Refer to other comments made in this report particularly regarding s.94 problems.

 

12. Fraud in quantity survey used to calculate tonnages excavated and survey was done after the land was levelled.

 

In a report to Council on 14 December 2004 there was discussion regarding a site survey, by a

registered Surveyor, Mr Matthew Freeburn, for the purpose of estimating the natural surface of the site prior to the quarry operation commencement to determine the depth and volume of the

excavation. This survey was undertaken by a Registered Surveyor for the purposes of estimating

the original natural ground level and estimating the volume of material excavated. It is appropriate

to use a Registered Surveyor for this type of work as they are suitably qualified for the purpose of a volume estimate.

 

Understandably, the volumes calculated were within a range as the natural surface was estimated for the purpose of the excavation. The volume of excavated material calculated from Council records, based on monthly reports submitted by the operator of the quarry, was within the range of volume estimated by the Registered Surveyor and was discussed in the report to Council referred to above.

 

Agree and refer detail in letter of Diamond 7/12/04.

 

 

13. Council staff have ignored tree clearing.

 

If the current Section 96 application is approved and there has been tree clearing within the

approved area then that clearing may be approved as part of the consent. If that is the case then

the appropriate fine for unauthorised clearing ($600) should also be considered. If there has been

unauthorised clearing outside the approval (if granted) area then this can be investigated as a

separate compliance matter.

 

A review of the file indicates a variety of photographs of the site at different stages of the

development and indicate only a sparse, if any, tree cover in some areas. Careful evidence would

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 63

 

need to be collected to establish if the clearing has been within or external to the approved area.

The respondent has not provided any evidence and the exact area approved for works has not yet been established.

 

Agree and note from our Affidavit in Reply

 

25. A declaration that trees cleared on the Property between 2005 and 2008 in the “Proposed Stage 2a” area in the s.96 modification application of 2006 was unlawful due to no permit from the Second Respondent under their Tree Preservation Order, and/or Part 3A Permit under Rivers & Foreshore Act 1948 (NSW) which was in force during this time, and under consent condition A.1 at page 23 which says there will be no further clearing for the development.

 

Particulars

(a)   Refer last page of Letter of consent of 23 December 1996 stating TPO applies to this site. Diamond has read the HCC file up to this month 2008 for the last 10 years and there is nothing there about TPO

(b)   Diamond subpoened the DIPNR file in 2005 proceedings and there was no reference to RFIA permits for Tinda Creek.

Refer also application of RFIA Act 1948 to the Tinda Creek site

1.      Evidence Tinda Creek at or near the sandmine site fall under the jurisdiction of the River & Foreshores Act 1948, and therefore required permits under Pt 3A to disrupt the creek which in the normal course would require documentation of the type in approved “Erosion and sedimentation controls” under consent condition A.4. The failure to obtain such permits is highly suggestive of avoidance of an approved details under consent condition 4

2.      Memo 3 January 1996 by Paul Bourne of  DLWC “Subject: Tinda Creek sand extraction EIS …..The status of Tinda Creek at the site has been reviewed, and the Creek is now regarded as a “river” for the purposes of the Rivers & Foreshores Improvement Act 1948 (refer p7 of the EIS)”

3.      Undated memo DLWC re inspection “12 December, 1995  …..obvious that Tinda Creek (under the Water Act definition) starts to develop definition and stream characteristics immediately downstream of the sand extraction operations”

4.      Memo 29 Dec 1995 DLWC copy to Mr Outhet Riverine Corridor Unit “I agree that the site is part of a lake and is also within 40m of a river under the RFI Act (due to the presence of the “existing” diversion channel as shown on the plans) David Outhet Senior River Scientist 29.12.95.

5.       Memo W. Conners 25 jan 1996 “regulation of the site be carried out under the Rivers & Foreshores Act”

 

…………..

 

 

14. Allegations of drug dealing, standover tactics, arson, death threats from the operators or persons related to the quarry operations.

 

These allegations are of a civil nature and the respondent is recommended to obtain their own legal advice for this matter.

 

Noted. Consent condition 13 regarding all aspects of amenity.

 

Consent Condition Compliance

 

1. Council has failed to enforce conditions of development consent.

 

2. The quarry is working out of the development approved area.

 

3. Condition 4 has not been complied with, therefore the consent has lapsed. Comments related to Statutory Declaration by Tom Bruce stating that it is misleading and false.

 

4. On 4/12 04 Council insisted that erosion & sedimentation control plan should be submitted re

conditions 1, 2, 3, 4, 17b and 27. This not yet done.

 

5. Council staff failed to properly instruct solicitors re erosion & sedimentation plans and compliance with conditions 27 or 17b.

 

6. Condition 27 required an environmental management plan but this has not been submitted

 

7. Condition 17B – requires submission of monitoring program details for ground and creek water

quality & contingency plan

 

8. Quarry using more water than licence permits.

 

9. No EPA or DLWC licences until 2004

 

The issues raised above relate to individual consent conditions. The following provides comments on each individual consent condition compliance.

 

Condition 1

 

"The development shall be carried out in accordance with Plan No. PS91/E130 dated April 1996 and documentation of Environmental Impact Statement dated 1 November 1995 as amended."

 

Comment: The existing operation has expanded outside the original approved area. The operators have lodged a Section 96 application (current application) to modify this condition to incorporate the existing and proposed operation area.

 

This condition apart from area boundaries is wide ranging because it incorporates a regime from the EIS 1995 as referred to in comments above for instance

 

-          for monitoring bores,

-          movement of the bypass channel

-          intall concrete siltation monitoring ponds

-          water monitoring plan

 

Also the correct approved plan defined by date is well defined and the attempt to insert SK2 plan in the 2006 s.96 applciation is highly misleading and deceptive.

 

Condition 2

 

"The area to be used being limited to the area shown on the submitted plans."

 

Comment: As per the comments for condition 1. The Section 96 application is proposed to rectify this non-compliance.

 

Agree but s.96 is inoperative for lapsed consent.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 64

 

Condition 3

 

"The development approval being limited to a period of 2 (two) years. Subsequent stages will require formal submission under Section B of this Consent to Council and supported by evidence that the operation complies with condition of Stage 1 Consent".

 

Comment: This matter was the subject of a Section 96 application that was approved by Council in December 2004.

 

The HCC report of 2004 was unsafe and unreliable contrary to law as s.96 was inapplicable to a lapsed consent as set out above.

 

Condition 4

 

"Erosion and sedimentation control devices shall be installed and maintained during construction and ongoing operations. Details shall be submitted and approved by Department of Land and Water Conservation prior to any works commencing".

 

Comment: Erosion and sediment control plans were submitted to Council as part of the original

development application. These plans were the subject of discussions during a mediation conference prior to the application being considered by Council. The outcome of the mediation conference was the inclusion of the second sentence in the condition that requires the approval of the Department of Land and Water Conservation.

 

Council does not have any records of amended plans being submitted and approved by the Department of Land and Water (Now Department of Water and Energy) as required by this condition. The Department of Water and Energy (DWE) have been consulted on two separate occasions to ascertain whether amended plans were lodged with the Department, and Council has received three separate letters from DWE in relation to this matter with at least two of those letters providing conflicting advice.

 

The first contact from Council resulted in a letter being received 25 June 2007 stating:

 

"A review of files in this matter has found that in 1996/97 the Department provided advice to Council, received copies of the Erosion and Sedimentation Plans (as required under DA134/95 Consent Condition 4) and undertook discussions and inspection of the site. In its working with Council the Department did not raise any significant concerns in this matter, implying support for the plan and its implementation."

 

Despite no request being sent from Council a second letter from the Department was received, dated 17 September 2007, stating:

 

"While DLWC received and reviewed plans (December 1995 and July 1996), there is no indication that DLWC received details as required by Condition 4 or provided the approval sought by Condition 4, subsequent to the consent determination."

 

These two letters provided conflicting advice and the matter was discussed with the applicant to clarify the situation. On 5 November 2007 the applicant submitted additional information in relation to the application that included a Statutory Declaration, dated 22 October 2007, that detailed the applicant's recollection of the facts in relation to compliance with Condition 4 of the development consent. This Statutory Declaration was referred to the DWE on 30 November 2007 as there was a reference to erosion and sediment control plans that had been recently viewed in the Department's Parramatta office. The response from DWE, received at Council on 7 March 2007, stated the following:

 

"Notwithstanding claims made by Mr Bruce in his declaration, the Department is unable to locate any documentary evidence to support Mr Bruce's claims.

 

Discussions with staff involved in the Tinda Creek matter at the time in question have also failed to substantiate Mr Bruce's claims of a verbal approval by a Department Officer."

 

Although the details in the Statutory Declaration by the applicant are not questioned, there does not appear to be satisfactory evidence that indicates that the Condition 4 requirement to submit erosion and sediment

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 65

 

control details and obtain the approval of the Department of Land and Water Conservation has been complied with.

 

The requirements of Condition 4 of the Development Consent must be complied with prior to any works commencing on the site following issue of the approval. As this requirement has not been complied with, the Development Consent has, technically, not been commenced and, as such, it is considered that the Development Consent has lapsed.

 

We have addressed this above. To repeat:

 

Mr Bruce claimed in writing to HCC dated 10/3/07 that he contacted officer Greg Brady from DLWC asserting Brady ‘verbally approved the erosion/sedimentation control plans in 1997’. Mr Diamond contacted Mr Brady in mid 2007 and Brady categorically denied any verbal approval of such plans.

 

Mr Diamond then contacted Mr Bruce by fax that Brady categorically denied any approval.

Diamond also wrote to Minister Koperberg and Rei Caldwell, senior compliance officer at DWE, to correct the claim being made by Mr Bruce about Greg Brady’s alleged verbal approval.

 

The letter of 17 Sept 2007 from Marwan El-Chamy of  DWE to HCC was then sent with the correct position of no approval.

 

Only then did Mr Bruce swear an affidavit claiming a different unidentified officer visited the site and gave approval.

 

El-Chamy confirms the position of no approval with another letter to Owens/HCC dated 3 March 2008, as follows:

dwe3march2008.jpg

This corroboration is not referred in the council report with the Dept’s categorical position of no compliance with consent condition 4.

The Statutory Declaration of Mr Bruce appears to be unreliable in light of the denials by officer Brady and supported by correspondence twice by senior officer El-Chamy of DWE.

 

This non compliance of condition 4 is not merely technical or trivial. In the late 80ies the previous operator Stout/Poyneed Pty Ltd partners of Birdon until 2004 were fined $10,000 for water pollution. The obligations to prevent this happening again are in the EIS in 1995 and incorporated into the development by consent condition 1.

 

The EIS at page 12, paragraph 8 it says that various measures will be undertaken in such a plan,:

 

“during the modification of existing channels, the water quality in Tinda Creek will be protected by a series of hay bales [should be straw bales under DLWC guidelines] located at various points along the associated watercourses until the vegetation on any new batters or surfaces has been established.

 

“The devices will be constructed withy the requirements of Soil Conservation Service and will be regularly inspected and maintained, particularly after major storm events.

 

“Monitoring ponds [never in place] will be located downstream of the development to determine the effectiveness of the sediment control devices. ….

 

In summary, Water Management at the site is generally limited to avoiding siltation of the adjacent streams so there will be no impact on the aquatic ecosystems.

 

3.10 Environmental Management Plan

 

The main environmental concerns with the Development are the siltation of Tinda Creek, water quality, flow regime and the rehabilitation of the site.

 

To Monitor the siltation, concrete ponds [never in place] will be constructed at the site and the volume of silt removed at quarterly intervals [never conducted] will be recorded against the rainfall for the corresponding period.”

 

All of these concerns inform a genuine plan under consent condition 4. Similar obligations are found in the EIS at page 13 and 22 regarding modification of the existing channels:

 

“It is proposed to upgrade the existing diversion drain to ensure that flood waters … do not enter the site.”

 

In Birdon’s letter of 2nd May 2005 the company admits they moved the channel 40 metres to the east of that shown on the site plan with work commencing in 1997.

 

The evidence shows Birdon have deliberately avoided their obligations under condition 4 to provide plans while radically altering  the creek and channel.

 

 

 

Condition 5

 

"All necessary works being carried out to ensure that stormwater flow from adjoining properties is not impeded".

 

Comment: Site inspections indicate that this condition is being satisfied.

 

Disagree – bypass channel does not work. Further there is no approval to do any works as per paragraph 17 of Pikes letter of 29 August 2006 “not lawful to undertake such works until consent has been obtained to the relevant s.96 application”.

 

Condition 6

 

"All trucks arriving and leaving the site shall have their load/trays suitable covered to prevent spillage from the truck onto the road".

 

Comment: There is no indication that this condition is not being complied with. This issue is an ongoing management measure.

 

Agreed.

 

Condition 7

 

"Council reserves the right to impose a condition to have a mechanism installed whereby wheels of trucks leaving the site are washed to minimise dust and debris being deposited on roads, however, it shall monitor the operation for 3 (three) months without such a facility to ascertain whether such is required".

 

Comment: This condition has not been acted upon by Council (It should also be noted that this condition is unlawful and should be removed if a Section 96 application is approved).

 

Agreed but s.96 is inoperative for lapsed consent.

 

Condition 8

 

"Payment of Section 94 Contribution under the provisions of the Environmental Planning and Assessment Act 197 towards the repair, reconstruction and maintenance of the roads based on 46.78 cents per tonne of material to leave the site. This contribution will be used for roadworks external to the site and towards the RTA's road maintenance program.

 

The contribution will be based on monthly tonnage to leave the site, with the applicant to submit to Council records of material removed. The said contribution will be paid on a monthly basis at the rate nominated and will be reassessed annually based on the Sydney Consumers' Price Index".

 

Comment: The operator has been paying Section 94 contributions on a monthly basis as required.

 

However, the base rate at which the contribution amount has been calculated has not been adjusted with the CPI since the commencement of the development consent.

 

This matter has been identified and the outstanding contribution amount, plus interest, has been calculated and a request for payment and a Notice of Intention to serve an Order, has been sent to the operator. This matter is the subject of ongoing action regarding the payment of the outstanding amount.

 

Agreed except Birdon refuses to pay and HCC is currently in court and we refer to letter of Diamond of 7/12/04 and the CD provided to GM Jackson provided late October 2008 setting out Cr Rasmussen’s legitimate s.94 questions.

 

 

 

 

Condition 9

 

"Dust control measures, e.g. vegetative cover, mulches, irrigation, barriers and stone shall be applied to reduce surface and airborne movement of sediment blown from exposed areas".

 

Comment: Site inspections indicate that this condition is being satisfied.

 

The EIS states that only 30% of the site should be exposed at any one time which is incorporated into the approval in consent condition 1. Page number to be advised or see above.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 66

 

Condition 10

 

"Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by running water to be stored clear of any drainage line, easement or natural watercourse".

 

Comment: Site inspections indicate that this condition is being satisfied.

 

This may well have been breached because of the failure to comply with condition 4 approved plan on erosion and sedimentation control via DLWC/DWE, or details in an EMP under condition 27.

 

Condition 11

 

"Submission of a building application, plans and specifications complying with the Building Code of Australia for any future building construction".

 

Comment: Two relocatable buildings have been located on the site (amenities and site office building).

 

The necessary applications and approvals have been issued for these structures.

 

There is no building approval for the wash plant, the house, and the extra sheds and no certification either under. The alleged ‘dog kennels’ already approved are used as vehicle sheds.

 

Condition 12

 

"No advertising structures to be erected, displayed or affixed on any building or land without prior approval.

 

Any unauthorised advertising structure will be removed at the expense of the advertiser".

 

Comment: At the last inspection there were no advertising signs. There is a site identification sign at the front of the site and advisory/ directional signs within the site.

 

Agree.

 

Condition 13

 

"The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise".

 

Comment: At the time of the last inspection the activity was operating without significant impact on the surrounding area. There is no recent evidence of complaints from the neighbourhood.

 

Apart from the criminal behaviour down stream neighbours and the national park world heritage area have lost the use of 37 to 54% of water flow critical to the enjoyment of the nearby areas.

 

In 2006 neighbour Pullicin complained about impact on Tinda Ck which is on council file.

 

Condition 14

 

"Operating hours shall be limited to 7.00am to 5.00pm Mondays to Fridays and 7.00am to 1.00pm

Saturdays. Any alteration of these hours will require the approval of the Director Environment and

Development".

 

Comment: There is no indication from site inspections or records of complaint that the mining operation is not complying with this condition.

 

Operating out of hours in 2003 and 2004 for instance truck use at 5 am in the morning.

 

 

Condition 15

 

"All waste materials to be stored and disposed of at regular intervals to the satisfaction of the Director Environment and Development".

 

Comment: There is no evidence that the operation is not complying with this condition.

 

Tailings are a waste material and they are not being disposed off as per the 1996 approval in plan PS91/E130 dated April 1996 in 3 parts, that is from 14 to 20 metres depth ( with crown consent). Nor has any s.96 approval varied the siting of the silt waste which is a highly irregular approach to final landform compared with 99% of other sand quarries.

 

Condition 16

 

"A waste management plan shall be submitted for consideration with the building application. Such plan shall address any builder's waste and waste generated during day-to-day operations and shall include types and quantities, recycling, reuse, storage and disposal".

 

Comment: Condition not applicable with the location of relocatable buildings.

 

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 67

 

Condition 17

 

"(a) An ambient water quality analysis is to be carried out in accordance with the Australian Water

Quality Guidelines for Fresh and Marine Waters - "Protection of Aquatic Ecosystems", and submitted to Council on an annual basis for every three months' testing and results.

 

(b) Submission of details on a monitoring program for ground and creek water quality and a contingency plan should the proposed water quality controls fail".

 

Comment: This condition has not been fully complied with to date. The matters in this condition are to be addressed if the Section 96 application is approved.

 

Agree, but section 96 is inoperative as the consent has lapsed. Birdon are in breach because base data must be provided in a water monitoring program before any water quality issues arise. Similarly a contingency plan is a precautionary measure ahead of a system failure. Similarly condition 17 (a) has not been done for years including lack of annual water quality reports.

 

Condition 18

 

"No fertilizers or pesticides are to be used without prior consultation with Council".

 

Comment: There was no evidence at the last inspection that these are used on the site.

 

Agree

 

Condition 19

 

"Maximum number of on-site employees, other than employees/contractors involved in truck haulage, shall be restricted to 15 (fifteen). Any increase in employment would require reassessment of the adequacy of on-site facilities for sewerage, water, car parking and the like".

 

Comment: At the last inspection of the site this condition was complied with.

 

Agree.

 

 

Condition 20

 

"All road and driveway surfaces shall be regularly watered to dampen the surface in order to reduce dust generation".

 

Comment: At the last inspection the road had been watered to reduce dust generation. No evidence that this condition is not being complied with.

 

This use of water is subject to a water license and they are in gross exceedance of the water allocation already with not enough capacity in the license to do the whole site.

 

Condition 21

 

"Local grass seeds shall be collected from surrounding areas to be used as part of the revegetation program".

 

Comment: The applicant has written to Council in the past explaining that due to severe weather

conditions it is difficult to collect seed from local species. The operator has used other similar or identical seeds and mixes in the establishment of ground cover vegetation.

 

This is insufficient answer as there must be a revegetation plan under condition 24 which has never been provided.

 

Condition 22

 

"The intersection of the existing driveway and Putty Road shall be upgraded generally in accordance with the amended Plan No. PS91/E130 (1 of 3) dated April 1996. All works to be carried out to the requirements and under the supervision of the RTA and any fees, securities or contributions paid".

 

Comment: The intersection works are adequate for the development and this condition has been complied with.

 

There is no evidence on council file that the RTA have been paid to lawfully modify the driveway.

 

Condition 23

 

"All drainage channels shall be constructed to avoid turbulence and scouring".

 

Comment: The last site inspection was following recent rains. Some of the channels on the site showed some evidence of scouring. Temporary channels have been implemented in the current working areas

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 68

 

and repairs to the scoured areas are being undertaken on an ongoing basis as required. This condition has been complied with.

 

Scouring is a problem and therefore the condition is in breach. Also under consent condition 4 the concrete monitoring ponds have never been installed and the details of the temporary channels mentioned should have been approved in details to DLWC/DWE.

 

Condition 24

 

"(a) Revegetation Plan shall include the use of seed mixes (including endemic plant material) which reflect the changing seasons and provide short to medium term soil stability. Native grasses should be used as a supplementary secondary stabiliser. No Kikuyu grass to be used".

 

(b) A qualified Bush Regenerator shall be engaged to specify and supervise all revegetation works".

 

Comment: The rehabilitation plan approved provides details of the rehabilitation measures and methods to be implemented. As mentioned in the condition 21 comments, some of the seed mixes used have been varied due to difficult local conditions. The last site inspection has indicated that the rehabilitation works are establishing and the operator is implementing suitable management measures to ensure survival of these works.

 

The condition is in breach as there is no reveg plan which is not the “rehabilitation plan” as such.

 

Condition 25

 

"Banks of the diversion drainage channel and perimeter mounding shall not exceed a slope of 1:3(V:H)".

 

Comment: Site inspection has indicated that the channels are generally no greater than 1:3 (V:H).

 

 

 

 

 

Condition 26

"The batter of the ponds and dam shall not exceed a slope of 1:3 (V:H)".

Comment: Site inspection has indicated that the pond walls are generally no greater than 1:3 (V:H).

 

There is a clear breach of consent condition 26: There are cliff faces in several excavation ponds with near vertical faces. Including this image taken on the site inspection in March 2007 taken by my court agent Tom McLoughlin:

wastindacreek14mar07.jpg

Condition 27

 

"A site environmental management plan shall be prepared within 1 (one) month of the date of this

approval, to address:

 

(a) on-site materials management;

 

(b) daily operating procedures;

 

(c) erosion and sediment controls

 

(d) emergency contingency plans'

 

(e) on-site drainage processes to ensure water quality".

 

Comment: The operator has submitted several versions of an environmental management plan to Council. Staff have reviewed these plans and advised the operator where changes should be undertaken. The operator is preparing a more comprehensive environmental management plan.

It should be noted that the consent condition, whilst requiring the preparation of the environmental

management plan, the condition does not require the plan to be approved by Council. As such, technically this condition has been complied with. However, the operator is prepared to work with Council staff to finalise a suitable plan for the quarry operations.

 

No approved details of erosion and sedimentation control as approved by DLWC/DWE have ever been submitted to HCC as per condition 4 which would appear in an EMP in normal course.

 

Further compliance with the RFIA 1948 including part 3A permits as regards moving the creek channel and any tree removal in a 40 metre protection zone would have been detail informing a real EMP. None of this has been done as DWE have no records of any RFIA permit compliance.

 

HCC ordered that Birdon submit an EMP on 14 Dec 2004  within 2 months as part of the purported approval of a s.96 extension. This has never been complied with.

 

We also note a long history of failure to address the components of an EMP despite bald assertions that this work has been done:

 

1.      Letter dated 6 June 1996 by (Birdon consultant) Port Stephens Design Services  to HCC re documentation for sandmine DA including detailed drawings sedimentation control, stockpile protection, diversion drain, nth creek stabilisation etc’

2.      Letter 15 July 1996 Marwan El-Chamy DLWC [DWE] to GM-HCC re ‘design sediment basin’

3.      Letter dated 22 April 1997 John Pye HCC Development Control Officer to Tom Bruce-Birdon to address “Sedimentation control devices  to be installed within the drainage channels …..”

4.      Pye to Bruce dated 30 June 1997 – ‘address environmental management plan ....erosion and sediment controls

5.      Pye to Bruce 21 August 1997 re letter of 7 July 1997 – ‘environmental management plan is insufficient ....should demonstrate sound environmental practice during establishment operation and rehabilitation and end use …. s.94 contributions not paid 3 months’

6.      Letter Bruce to Pye 22 Jan 1998 ‘we believe our environmental plan of 7.7.97 cover this’

7.      Letter dated 15 Dec 1998 Birdon to Pye-HCC “Erosion & sedimentation control devices  were installed and are maintained. Dept of Land & Water Conservation approved system designed and council has approved devices installed”

8.      Letter dated 1 May 2002 Birdon to Pye-HCC “Erosion & sedimentation control devices  were installed and are maintained. Dept of Land & Water Conservation approved system designed and council has approved devices installed”

9.      Evidence Tinda Creek at or near the sandmine site fall under the jurisdiction of the River & Foreshores Act 1948, and therefore required permits under Pt 3A to disrupt the creek which in the normal course would require documentation of the type in approved “Erosion and sedimentation controls” under consent condition A.4. The failure to obtain such permits is highly suggestive of avoidance of an approved details under consent condition 4

10.  Memo 3 January 1996 by Paul Bourne of  DLWC “Subject: Tinda Creek sand extraction EIS …..The status of Tinda Creek at the site has been reviewed, and the Creek is now regarded as a “river” for the purposes of the Rivers & Foreshores Improvement Act 1948 (refer p7 of the EIS)”

11.  Undated memo DLWC re inspection “12 December, 1995  …..obvious that Tinda Creek (under the Water Act definition) starts to develop definition and stream characteristics immediately downstream of the sand extraction operations”

12.  Memo 29 Dec 1995 DLWC copy to Mr Outhet Riverine Corridor Unit “I agree that the site is part of a lake and is also within 40m of a river under the RFI Act (due to the presence of the “existing” diversion channel as shown on the plans) David Outhet Senior River Scientist 29.12.95.

13.  Memo W. Conners 25 jan 1996 “regulation of the site be carried out under the Rivers & Foreshores Act”

 

 

 

Condition 28

 

"A professional archaeological survey being carried out for the site by a suitably qualified person to particularly assess the site's Aboriginal Heritage potential".

 

Comment: The operator provided a letter from Brayshaw McDonald Pty Ltd, Consultant Archaeologists who carried out a survey of the site in conjunction with the extraction of sand for an agricultural dam. The survey in 1984 focussed on the north western quarter of the extraction area. The consultant indicated that no further archaeological investigation is warranted.

 

Disagree. The expansion of the site is in the north east not the north west and so this answer is insufficient, and refer comments above.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 69

 

Condition 29

 

"All general stormwater shall be diverted around the work site other than any controlled inflow to maintain water levels within the work site".

 

Comment: Site inspection revealed that stormwater diversion drains in place are complying with the condition.

 

Disagree as Umwelt in the current s.96 application states a need to change the diversion drain for the creek because it’s not working. For instance Umwelt say the grades are incorrect. The council file also indicates the diversion channel has never worked also, and this has been confirmed verbally by EPA officer Jo Zurrer, and Kieran Horkin similarly from DECC.

 

Condition 30

 

"All water falling on or contained within the work site shall be retained within the work site and not

permitted to leave the site otherwise in accordance with a license issued by the EPA".

 

Comment: The operator has obtained licences for the use of groundwater that are issued by the

Department of Environment and Climate Change. At the last site inspection there was no indication that water within the work site is permitted to escape the site beyond the levels that are permitted in any licence issued by the Department.

 

This response is misconceived as the groundwater license is from DWE not DECC. We understand that neighbour Pullicin was also incorrectly advised water licensing volumes were dealt with by the EPA.

 

Condition 31

 

"The erection of truck warning signs with distance plates located 200m on approved sites to the access to the development".

 

Comment: This condition has been satisfied.

 

Agree.

 

Condition 32

 

"The payment of a Bond or Bank Guarantee of $50,000 for rehabilitation and restoration of the extractive industry operation. Should the plan of rehabilitation not be carried out in accordance with the plan, this money will be used for such work. The Performance Bond for rehabilitation of the site will be reviewed annually with a review of the conditions of consent".

 

Comment: A Bank Guarantee for $50,000 was lodged in May 1997, but has not been reviewed to date. Should the Section 96 application be approved, this bond amount may require review.

 

Birdon has lodged a limited number of annual reports. As we understand the performance bond for rehabilitation of the site has never been reviewed with any review of the conditions of consent.

 

The problem is the money to rehabilitate this site will far exceed $50,000 not least because of the improper siting of siltation waste only 1 to 4 metres below the surface of the main tailings ponds.

 

Condition 33

 

"The applicant (extractor) is to lodge an annual report indicating compliance or otherwise with the

conditions of approval of the consent and conformance with any other permits or licenses as issued by the EPA and the Department of Land and Water Conservation".

 

Comment: The operator has submitted a number of condition compliance letters to Council on 21

December 1998, 18 January 2000 and 1 May 2002. In April 2004 a submission was lodged with Council that was titled as an annual report.

 

Compliance with this condition has been low. However, much of this seems to be due to the submission of two Section 96 applications and the protracted assessment process for those two applications and the wording and structure of the development consent generally. The development consent is difficult to assess compliance in all areas due to the wording of the conditions being difficult to measure compliance, and some of the conditions are vague and not specific in their intent. If the Section 96 application is approved some of these (but not all) may be reworded to make clearer.

 

Agree compliance with this condition has been low. There has been

 

-          no RFIA permits provided

-          water licensing not done from 1996 to 2004

-          water licenses granted in 2004 were much too small for the volume used

-          failure to report to HCC breaches of conditions 9 and 10 of their water licenses for the dredge ponds specifically lack of reporting of hours and volume of water annually

-          failure to report to HCC breach of their EPA license specifically not maintaining the creek channel and not doing an environmental study of the creek. These breaches were copied to council by Diamond in 2006-2007.

 

We don’t agree the consent conditions are difficult to follow. Council has provided extensive advice to Birdon about how to comply including via their own lawyers analysis.

 

 

10. The Tinda Creek quarry is operating on Lot 1 (by-pass channel & test bores) and Lot 3 (Test Bores) and Council should take action for this to cease. Should be operating only on Lot 2 DP 628806.

 

The development consent relating to DA 0134/95 relates to Lot 2 DP 628806. Council’s records do not indicate that there are any approvals for excavation works on the adjoining properties. It is

considered that the undertaking of test bores, as referred to in the submission and following

inspection of the “test bores”, consent for those works is not required.

 

This response is insufficient and wrong. Test bores must be installed by a licensed driller and these were unlicensed using a backhoe. Test bores must also be licensed by DWE to become operational.

 

ORDINARY MEETING

Meeting Date: 29 July 2008

ORDINARY SECTION 4 Page 70

 

The diverting of the overland flows as a “by-pass channel” are works required by the development

consent and should relate to Lot 2 only. To date there is no survey evidence that the diversion

works are encroaching on the adjoining property.

 

There is a survey (no. 8831) that indicates the channel encroaching on the adjoining property lot 1 in the 1986 consent file. There are other surveys that show the channel must have moved onto lot 1 at least to some small degree, including the maps on 72 and 73 of the July 2008 report to HCC.

 

 It should be noted that the current application proposes to relocate the diversion channel to the south of the quarry operations.

 

Should the application be approved a condition should be imposed that requires these works to be located in relation to the boundaries and, should they encroach onto the adjoining property, these works are to be relocated. Should the application not be approved, these works should be included in any remediation Order issued on the property owner.

 

11. Auditor has defrauded Council in not mentioning the shortfall in S94 fee collection.

 

The contributions for Section 94 projects are committed to identified projects which are only

undertaken when the appropriate fees are collected. Whilst estimates of income are included in the budget process for Section 94 income, this income has no impact on Council’s overall budget and auditing process. The Auditor has undertaken the audit in the appropriate manner.

 

Diamond totally denies ever claiming the “Auditor has defrauded Council”. This is a false claim. The statement by Diamond was that there are flaws in the audit namely s.94 payments were not properly made, which has proved to be correct and is subject of legal action between HCC and Birdon currently before the LEC.

 

 

Conclusion

 

The report has provided a detailed assessment of all the matters raised by the respondents.

The application can be considered under the provisions of Section 96 as the modification is considered to be substantially the same development approved.

 

Disagree refer comments above. Not the same development.

 

The legal advice provided by the EDO in respect to the lapsing of the consent has been considered and discussed with Council’s solicitors.

 

Based on the evidence provided by the Department of Water and Energy it appears that this condition of consent has not been complied with as no approval from the Department has been obtained.

 

As a result based on the legal opinion and advice from Council's Solicitors the Development Consent DA0134/95 has lapsed and, as there is no current consent, Council cannot modify a Development Consent that has lapsed.

 

RECOMMENDATION:

 

That:

 

1. The application under S96 to modify Development Consent DA0134/95, Lot 2, DP 628806, No. 6102 Singleton Road, Mellong be refused as, due to non-compliance with Condition 4 of the original consent, the consent has lapsed and Council is unable to consider the application.

 

2. A Notice of Intention to serve an Order be issued on the operator to cease operations due to there being no current consent for the operation.

 

3. A survey plan is to be submitted to Council within two months, showing the location of diversion works in relation to the property boundary. Should any works be located outside the property boundary of Lot 2 DP 628806, those works are to be removed immediately and the land rehabilitated to its natural state.

 

Agree with the recommendation. Also we submit the following formula for closure and rehabilitation as a proposal for consideration of HCC:

 

1. Birdon cease to operate any extractive industry until such time as Birdon has caused to be carried out upon the Property the progressive rehabilitation and revegetation of

(a) Tinda Creek including restoration of natural flow running through the Property; and

(b) the Property itself.

2. Birdon must substantially commence rehabilitation of  Tinda Creek including restoration of natural flow on the Property, and the Property itself within 9 months and be completed within 2 years of commencement of rehabilitation works.

 

3. Birdon retain within 3 months an independent qualified hydrologist to assess the interchange between Tinda Creek and the sandmine on the Property in order to formulate a rehabilitation plan, the assessment to be completed within 6 months. The hydrologist should consider work by Chris Jewell in a report on the Property for HCC in 2007, current water licences and the principles of ecological sustainability including advice of NSW Department of Environment & Climate Change. A copy of instructions to the consultant to be provided to the the public and HCC.

 

4. Birdon  retains within 3 months an independent qualified ecological consultant to prepare a rehabilitation plan for Tinda Creek on the Property and the Property itself, the plan to be completed within 6 months. A copy of instructions to the consultant to be provided to the public and HCC.

 

5. HCC obtain a qualified independent peer review of both the hydrological assessment and rehabilitation plan. This can be paid for out of the $50,000 rehabilitation bond held by HCC.

 

6. If Birdon fails to substantially commence implementing points 2 and 3 within 3 months, or fails to finalise plans within 6 months, HCC will proceed to do so at the expense of Birdon

 

 

………………………………

 

Regarding attached maps, councillors should have been provided with a map of PS91/E130 dated April 1996 map number 2 of 3, and 3 of 3 which would have set out the dimensions and mining sequence as approved in the original DA. This would have provided a comparison with the s.96 application to show the degree out of area. These plans also show where the tailings are supposed to be sited in the approved plan.

 

As regards lack of part owner crown consent for the site in the original 1996 approval making later extensions arguably inoperative please refer to previous affidavit material as here:
 

17. A declaration that the 1996 development application DA 134/95 by the First Respondent was an invalid application under the applicable Environmental Planning & Assessment Regulation, because there was no consent of the Crown as part owner of the land below 15.24 metres according to the title deed for DP 628806.

 

Particulars

(a)   Letter 7 March 2005 Stephen Fenn Policy Adviser Minister for Lands to Neville Diamond: “However, I understand that at no time during the processing of the Development Application by Hawkesbury City Council was the Department’s consent either sought or given to the activity.”

(b)   Title deed Lot 2 Search Dept of Lands dated 3/11/2003: “EXCEPTING LAND BELOW A DEPTH FROM THE SURFACE OF 15.24 METRES BY CROWN GRANT”

(c)   Approved plan map 1 of 3 PS91/E130 dated April 1996 shows “DREDGE FINES” the bottom 6 metres of a 20 metre excavation.

(d)   Unwelt report of 2006 at page 1 under Introduction 1.0 “current sand dredging and extraction operations at ‘Tinda Park’ …..with sand extraction extraction proposed to an average depth of 20 metres over a 22 hectare area.”

(e)   Refer EDO advice dated 29 November 2004

Copy of these documents is at annexure 35 of the Affidavit in reply Diamond v Birdon & HCC 40733 of 2008 with council.

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