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sydney alternative media - non-profit community independent trustworthy
Sunday, 1 June 2008
Objector seeks to be heard in Coca Cola bottled water case after driest May on record
Mood:  rushed
Topic: ecology

We previously wrote about this case involving Coca Cola Amatil's controversial bottled water plant here over local impacts and water sharing not least May being the driest month on record in Sydney area:

Here is the latest approach after the SAM editor here wading through extensive litigation documents in this saga back to 1994 in the Peats Ridge/Mangrove Mountain area within the Gosford Local Council area.
Subject: request for objector to be heard for appeal in David Kettle [Coca Cola Amatil] v Gosford City Council 05/10429, next directions hearing 6th June 2008

The Registrar
Land & Environment Court of NSW
By email:             
Dear Registrar
Request for objector Neville Diamond to be heard via his agent/lawyer Tom McLoughlin on the appeal in David Kettle [Coca Cola Amatil] v Gosford City Council 05/10429 Class 1, 2, 3
I am writing on behalf of objector Neville Diamond as his agent (pro bono). (I am also currently holding a restricted practising certificate as a solicitor in NSW, currently no supervisor, with a history in public interest, pro bono legal work.)
I'm advised that my client in 2005 submitted a 100 page objection to the development. He has received notice from Gosford Council in May 2008 of the appeal by David Kettle (for Coca Cola Amatil).
I have been reviewing the extensive case(s) history with materials from an earlier listed party Jane Azzopardi with whom I am actively liaising.
Ms Azzopardi as neighbouring land holder does not seek to be heard personally not least because of the stress of the fraught history of this matter to date, while maintaining strong misgivings about the development consent and now this modification. We understand Ms Azzopardi strongly supports myself speaking on issues of public interest and impact on the local neighbourhood as agent for my client Mr Diamond. For instance we are most concerned that climate change aspects as per the Anvill Hill and Sandon Point precedent cases, and the driest month of May on record are taken into account.
My client Diamond seeks to exercise his entitlement (if as we understand it is designated development) to be heard as an objector through myself as agent (possibly as supervised solicitor in future) on the appeal at the hearing. Similarly if it is not designated development my client alternatively still seeks the court's permission to be heard as an objector through this writer's agency/advocacy.
In this regard we refer the text highlighted in bold from the NSW Environmental Defenders Office Fact Sheet at Merits Appeals – Class 1


Can objectors be joined as parties to a proponent's merits appeal?

Yes. If a proponent lodges a merits appeal against a council's decision in relation to a designated development, then the consent authority must notify any objectors of the appeal, and those objectors are entitled to be heard at the appeal as if they were a party to the appeal. If an objector wishes to attend a merits appeal and be heard, then they must apply to the Court within 28 days of the date of the notice by writing a letter to the Registrar indicating their wish to do so.

An objector may also be permitted by the Court to join a proponent's merits appeal in relation to an application for development consent if they can show that they are able to raise matters that might not otherwise be raised.


Can objectors be joined to non-designated development merits appeals?

There is no express right for objectors to be heard in relation to appeals concerning non-designated development. However, in practice, the consent authority may often call objectors to give evidence at the hearing, and objectors are often granted permission (or leave) by the Court to call evidence, cross-examine witnesses and make submissions, although this does not extend to the right to appeal against any final decision.

Objectors may also apply to the Court to be involved as a full party to the proceedings if they can show that they are able to raise issues which will not be adequately addressed by the other parties, or that it is in the public interest or the interests of justice for them to become a party.

In relation to whether the development is designated development (an EIS prepared in 2005?) it remains unclear to us at this stage whether this modification under s.96AA EP&A Act for a permanent 66ML p.a. extraction of ground water has been treated as designated development status, or excluded as a result of:
"Water Sharing Plan for the Kulnura/ Mangrove Mountain Groundwater Sources (as amended 1 July 2004)" found at http://www.naturalresources.nsw.gov.au/water/ind_sharing_plans.shtml
as this interacts with
Environmental Planning and Assessment Regulation 2000,

Schedule 3 Designated development

19   Extractive industries (1)  Extractive industries (being industries that obtain extractive materials by methods including excavating, dredging, tunnelling or quarrying or that store, stockpile or process extractive materials by methods including washing, crushing, sawing or separating):

(a)  that obtain or process for sale, or reuse, more than 30,000 cubic metres of extractive material per year, ......

(2)  This clause does not apply to: .....(c)  extractive industries undertaken in accordance with a plan of management (such as river, estuary, land or water management plans), provided that:

(i)  the plan is prepared in accordance with guidelines approved by the Director-General and includes consideration of cumulative impacts, bank and channel stability, flooding, ecology and hydrology of the area to which the plan applies, approved by a public authority and adopted by the consent authority and reviewed every 5 years

We also note factors for deciding whether a matter is designated development include factors in the 2000 Regulation below - note bold added re past non compliance as a relevant factor.  .........................

Environmental Planning and Assessment Regulation 2000

Schedule 3 Designated development

Part 2 Are alterations or additions designated development?


36   Factors to be taken into consideration


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

(a)  the impact of the existing development having regard to factors including:
(i)  previous environmental management performance, including compliance with the conditions of any consents, licences, leases or authorisations by a public authority and compliance with any relevant codes of practice, and
(ii)  rehabilitation or restoration of any disturbed land, and
(iii)  the number and nature of all past changes and their cumulative effects, and

(b)  the likely impact of the proposed alterations or additions having regard to factors including:

(i)  the scale, character or nature of the proposal in relation to the development, and
(ii)  the existing vegetation, air, noise and water quality, scenic character and special features of the land on which the development is or is to be carried out and the surrounding locality, and
(iii)  the degree to which the potential environmental impacts can be predicted with adequate certainty, and
(iv)  the capacity of the receiving environment to accommodate changes in environmental impacts, and
(c)  any proposals:
(i)  to mitigate the environmental impacts and manage any residual risk, and
(ii)  to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities.

Most recently in 2008 for instance there is apparent breach of clause 1.5 of the water licence General Terms of Approval to the developer by DIPNR [now DWE] attached to their letter 28th January 2005 for this development site:

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

We are advised via the neighbouring land holder that since February 2008 up to 3 or 4 tankers a day of Coca Cola big water tanker trucks have exported water off the relevant site yet this is the only mineral bottling plant in the district [owned by Coca Cola Amatil]. We understand the water may be for a brewery owned by the developer at Wannervale. Perhaps Coca Cola Amatil will submit evidence to explain this export of water. 

A review of the files indicates a cascade of illegal development with retrospective approval at this site especially by previous owner back to 1994 as per legal advice letter(s) of Donnellan & Co Solicitors acting for the consent authority Gosford City Council dated 15/11/96 and 21/10/96 .

 Please do not hesitate to contact the writer .....

Yours truly
Tom McLoughlin, agent for objector Neville Diamond
We have provided extensive land use submissions previously for environmental activist Neville Diamond previously here:

Here is that press release about the return of the dry in Sydney and NSW:

Driest May on record for Sydney

Press Release, Saturday May 31, 2008 - 09:48 EST 

Sydney has just endured its driest May on record, according to weatherzone.com.au.

The city picked up just three millimetres of rain throughout the entire month, compared to a long-term average of 122mm. This made it the driest May since records began way back in 1859.

In fact, the entire state of New South Wales experienced a very dry month, putting a worrying dent in the recovery from long-term drought. Other towns to come in with their lowest May rainfall on record included Cessnock, Mangrove Mountain, Bellambi, Camden, Bega, Green Cape, Ulladulla, Tabulam and Narrandera.

"Typically, during May, we would see plenty of moisture across New South Wales with the odd low pressure system off the coast. It is also the time of year when northwest cloud bands start to have an impact on our rainfall. This leads to May being statistically one of the wettest months of the year," weatherzone.com.au meteorologist Matt Pearce said.

"However, this year, the northwest cloud bands have been largely absent so far, following a trend that has become apparent in recent years. In addition, the waters off our coastline have been cooler than normal, which means that moisture levels over the state have been too low to produce any useful rainfall."

It was also quite a warm month. Sydney had an average maximum of 21 degrees, above the long-term normal of 19. However, there was still the odd cool day. For example, on the 18th, the city reached just 18 degrees, making it the coldest May day in two years.

Nights were closer to normal. Sydney’s average minimum of 11 degrees was right on the long-term normal.

When both daytime and overnight temperatures were combined, Sydney’s average temperature for May came in at 16 degrees, slightly above the long-term normal of 15.

On the other hand, nights were generally colder across the rest of New South Wales. For example, Braidwood had an average minimum of just one degree, its lowest for May in 13 years of records.

"As a result of the lower humidity across New South Wales during May, skies were clearer. This typically leads to higher daytime temperatures and colder nights, which is what we saw this month," Pearce said.

"We are expecting drier than normal weather to continue across central and northwestern parts of the state through winter. However, northeastern and southern districts can expect close to normal rainfall."

- Weatherzone


Meanwhile we just noticed this on the influential Sunrise Channel 7 programme back in January 2008

Posted by editor at 9:58 AM NZT
Updated: Sunday, 1 June 2008 11:57 PM NZT

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