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sydney alternative media - non-profit community independent trustworthy
Saturday, 4 October 2008
Coke Cola juggernaut hits corrugations: Pumping trial and risk continues to 2011
Mood:  a-ok
Topic: legal


We took a call yesterday from the SMH journo yesterday responding to our update. It's a reasonable report but as with these things there's some missing elements, and the headline is misconceived as dear reader you will see. So we thought we better fillout the complex and highly tactical background.

We emailed Ben Cubby this tipoff Friday morning copy to local objectors from Wednesday prior, as court agent for activist intervenor Neville Diamond in this Land & Environment Court case:

Sent: Wednesday, October 01, 2008 8:59 PM
Subject: CCA got 35 ML/YR permanent with 66 ML/YR trial ongoing to 2011

I have a copy of the orders and judgement from earlier today 9.30 am. Neville also.

I will mail a copy up to you guys - Jane I guess or Margaret or both.

No costs orders against anyone. Our 2 extra consent conditions failed to get up, one to ban bulk export and the other revegetation - though this latter one got closer than I expected.

Moore/Taylor took serious notice of the climate change concerns - and we did well to get that evidence in even though we are not acknowledged directly about that. But given no one else ran the issue up except GCC in their pleadings (Statement in Reply document) says to me we had to be in the case all along and not trust GCC.

Well done xxxxxx for photocopying for me the CSIRO report - again not mentioned specifically but you can see them leaning on it in their cross referencing of other legal cases on the precautionary principle re climate.

For me the critical turning point in the case was Lane being chosen as CAE [court appointed single party expert] who was alwys going to go for an approval.

There is a paragraph too that gets it wrong regarding Peter Campbell evidence which he will want to read, mixing Peter up with Mr Hitchcock on the water sharing committee. There is also an embarrsing typo in the documents referring to trial until 2911! Sounds good to me but should read 2011.

The Commissioners also notably extracted in their judgement exactly the same text I lifted from Lane in my submissions, that contradicted his own verbal evidence to a fair degree.

So in conclusion we kept the trial. And they got 35ML permanent.

Thanks linesman, thanks ball persons! Until the next tennis match.

Kind regards, Tom
Which is not quite the same spin as the Herald headline writer as above which does bear some resolution of the different versions, ours being the more informed (we humbly submit).

To explain: CCA wanted to get free of their existing 66 ML/YR trial from the 2005 judgement because a trial is just that - it puts their whole approval in jeopardy if they fail the trial. So there was no "extra water" in the court decision which has always been at 66 ML/YR since 2005. That is 66ML/YR before the court decision, 66ML/YR after the cout decision. But contrary to the Herald slant Coke are hamstrung by another 3 years of risk of trial conditions, as they should be. That's a job well done by the community sector.

How so? Because with the trial leash CCA know from history in the Peats Ridge area they can't go anywhere near the 66ML/YR without some major impacts all carefully measured with monitoring bores. Which is why in their trial up to late 2007 they refused to pump more than an average 35ML/YR for the last 3 years despite a court authority (some argue mandatory requirement) to trial 66 ML/YR fearing the consequences of resultant scientific data being exposed. Indeed the court decided this latest data only justified 35ML/YR permanent approval up from 25 ML. So their trial over the last 3 years has got them only 10 ML/YR extra permanent increase to 35 ML.

In reality CCA squibbed the 66 ML/YR trial and paid the price with another 3 years - go back and do your homework. Good decision LEC.

Indeed when CCA tried in 2006 to pump at a higher rate of 66 ML they ended up in court again for a plummeting water table in what became known as the "Trigger Case". This refers to a trigger where the CCA bores automatically shut off at 10 metres depth - which was loosened in CCA's favour to 15 m. In that case CCA applied for but lost their application for unlimited depth so you can never over-estimate the chutzpah of CCA . The LEC being the only thing between big political donations to the ALP Govt with their so called independent public servant bureaucrats.

This latest decision is not a win for Coke. No costs orders were made against any objector party, neither council or intervenor Diamond. Even when we didn't get our extra consent conditions. Indeed if we hadn't been there alot of climte change evidence would have been airbrushed.

Coke didn't get their trial conditions removed which was their stated case in their application and pleadings, so their appeal was only "upheld" to the extent of a minor increase of 10 ML/YR permanent increase free of the trial consequences in 2011 depending on the data at that time. Here indeed is that very pleading to delete the LEC/Moore C. prescient trial at 66 ML/YR imposed since 2005:

And notice Dr Noel Merrick in the story above as "the groundwater expert" at UTS. Our advice, and we are happy to be corrected, is that he is a computer modelling expert, not a qualified hydrologist. He is reported as admitting this at a boisterious public meeting in 2006 or so.  

A quick look at his resume online indicates:

 Research Expertise

  • Groundwater modeling – flow, solute, contaminants, stochastic.
  • Optimisation modeling - resource management, groundwater allocation, dewatering, pump-and-treat
  • Electrical geophysics - software, resource assessment, salinity monitoring
  • Computer programming - FORTRAN, GAMS 

Later on in the resume he indicates:

Academic Qualifications

  • PhD, 2000, University of Technology, Sydney.
  • Graduate Course in Hydrology, 1981, The University of New South Wales.
  • Graduate Diploma in Data Processing, with Distinction, 1980, The New South Wales Institute of Technology.
  • Master of Science Research Degree, 1977, The University of Sydney.
  • Bachelor of Science Degree, 1971, The University of Sydney

Professional Society Memberships

  • MIAH - Member, International Association of Hydrogeologists
  • MASEG - Member, Australian Society of Exploration Geophysicists
  • MNZHS – Member, New Zealand Hydrological Society
We added the bold regarding graduate course in hydrology. A degree does not quite make for profound expertise in a highly contested legal case. What was the Phd in? We suspect it was in computer modelling. And the memberships of various hydrologist professional bodies does not quite get you there. There is heavy emphasis on the computer modelling aspects in this resume. And clearly Merrick is a smart man. That's not the question. For those who aren't aware the highest expertise in this area of groundwater in Sydney sandstone is referred to as a hydro-geologist. And that leaves wide open the area of ecological expertise of groundwater dependent ecoystems.

No one is saying Merrick doesn't have knowledge of these, but is he the expert beyond his computer modelling career? We do wonder.

Yet Merrick is offering arguably unqualified ecological impacts advice to anyone who will listen? - Mr Lane who was the hydrologist single parties expert in the case, the local press in a letter in May 2007, and to the SMH here. But he's not an ecologist, and he's not a hydrologist. We asked Lane in cross examination who in turn admitted in writing he relied on Merrick for his expert evidence .... 
McLoughlin: 'He's not a hydrologist is he?'
Lane " Is he not?"
McLoughlin: "So that's your evidence, you understand him to be a qualified hydrologist?"
It was about to get ugly and Commissioner Moore intervened to keep it all polite and smooth. But the point was made.

Indeed Dr Merrick has written in effect that he is a potential joint venturer with Coca Cola funding his proposals for future academic studies of Peats Ridge. In other words he appears to have a potential financial conflict of interest. In this case Merrick was happy to endorse a whopping '30% reduction in stream baseflow'. Too bad if you're an eco-system in the surrounding national parks dependent on that 30% of water resource!

There is simply no scientific environmental impact assessment by Merrick, State Govt or CCA for such an outrageous posture. Indeed it contradicts the gist of Merrick's own Nov 2006 170 page report which suggested sustainable yeild for that catchment had been over estimated by 100%. Which was why CCA wanted to get him onside and out of the way? And wanted to offer to jointly fund his future studies? And why the local Catchment Management Committee refused to endorse the next Merrick CCA joint study for lacking independence?

The main parties in the litigation didn't want to consider Merrick's Nov 2006 academic report which tended to contradict his new view of things by May 2007 in the clammy embrace of CCA. This writer forced them to include it in evidence to the expert Lane. He got the report with only 4 days to interpret the complex data 14 July 2008, final report 18 July, hence the verbal consultations with Merrick direct as conceded by Lane in writing in his final report.

This Nov 2006 Merrick report is realistic about the historical over-allocations and uncertainties of unlicensed water use such that grant in 2005 to Coca Cola from 25 to 66 ML/YR (in contrast to any other rival applicant) was in the context of existing unsustainability. In other words in isolation the CCA increase is 'a minor impact' if it were a sustainable paradigm but in reality its salt into the wound and the local farmers know it. No double talk can hide that reality.

There is no doubt a govt funded independent study of water usage in the Peats Ridge, Somersby Plateau should be done, whether by Merrick or otherwise, but not funded by CCA to compromise the results. And why hasn't it been done? Because it appears there is rampant sandmine and other unlicensed water use in the area making for a real can of worms, and just like water regulation in many other areas of the state. Of that CCA is quite accurate. It's another state govt dog's breakfast.

As we understand rather than address the local water supply systemic over-allocations which Dr Merrick implies in his own correspondence then minister Frank Sartor indulged in 2007 in some corporate welfare and approved a $27M water pipe down from the Hunter to keep the local Gosford Wyong water supply going.

And what does this all mean for future water use by CCA at Peats Ridge? Quite likely once they go pump over the tried and tested 35ML/YR average their monitoring will start to show big problems just like it did in 2006 with a plummeting water table impacting local farms. It ain't over yet by a long chalk. And the anti bottled water forces are getting stronger as people's discretionary income for this luxury is going south. Same as tap water indeed! Ben Cubby got that right.

Another minor nit pick in the SMH story. The NSW Nature Conservation Council rep might well have a valid opinion about the broad situation of bottled water. But they didn't have anything to do with the community litigation in the LEC in 2008. The people on this author's radar were Scott Hickie ably assisting Ian Cohen MLC, campaigner Jon Dee, Clean Up Australia and to a lesser extent Waverley Mayor Ingrid Strewe (till recently) and similarly Peter Macdonald of Manly council.

An extensive history of the latest litigation and our role as SAM editor sometime court agent can be found here:

Monday, 29 September 2008

Friday, 19 September 2008
Thursday, 18 September 2008
Monday, 4 August 2008
Friday, 25 July 2008
Friday, 18 July 2008
Friday 18 July 2008 -  
Tuesday, 15 July 2008
Saturday, 5 July 2008
Friday, 4 July 2008
4 July 2008 -
Friday, 27 June 2008
Friday, 27 June 2008
Tuesday 24 June 2008 -

Posted by editor at 11:08 AM NZT
Updated: Thursday, 16 October 2008 4:26 PM NZT

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