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sydney alternative media - non-profit community independent trustworthy
Monday, 6 October 2008
Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area?
Mood:  sharp
Topic: legal

Picture above: Location of sand mine impacting Tinda Creek near Mellong along Singleton Rd north of Windsor in NSW which flows into Wollemi World Heritage area. These images following are from Google Earth today and date from sometime around 2003. The latest image is from May 2005 below via Hawkesbury City Council file.

Picture above: Mellong in the World Heritage listed Blue Mountains region is at top left of the image.

Picture above: Taken 6th May 2005 by Hawkesbury City Council in overflight showing about 40% out of approved area, and starting to encroach on the northern side (top left of image) into Lot 1 with  no legal development consent in either place. Sand mine operated by Birdon Contracting Pty Ltd at Mellong with huge tailings pond which in the 1980ies comprised the wetlands and headwaters of Tinda Creek, into the Wollemi and then Colo River. Compare Google picture below which despite the 2008 copyright indicates about 2003 stage of workings (less excavation, less tree clearing, less encroachment on unapproved land).

Picture above: Image on Google Earth today but dating from around 2003 given the comparison with HCC May 2005 picture above. Here in 2003 showing much less excavation and smaller tailings pond, and less trees cleared in the east and north of the site.


Picture above: The Wilderness Society endorse the campaign to protect the water resources of Wollemi national park, world heritage area.

Picture above:  Controversy of the past. Combined environment groups beat off another development in 1996 in the headwaters of Tinda Creek, this time a fertiliser factory.
Sent: Thursday, September 18, 2008 5:43 PM
Subject: Briefing to Minister on litigation re threat to Tinda Ck in Wollemi NP/World Heritage Park

Dear Deputy Premier Tebbutt/Carmel

As discussed with your electorate staffer and as my local MP and also Minister for DECC please find a brief attached and a request for a meeting to discuss this below as soon as practical.
Yours truly
Tom McLoughlin, tel. 0410 558838
court agent in Diamond v Birdon Contracting Pty Ltd and Hawkesbury City Council 40733/ 2008

Action requested

A. Bring Ministerial pressure on Hawkesbury City Council ("HCC") - led by Mayor Bart Bassett (Liberal Party) - in order to cure past HCC inability to sanction a sandmine with lapsed consent or to enforce DA conditions. 
B. Request Council to pro-actively support current public interest litigation by community objector Neville Diamond (and/or the writer) to prevent further sand mining by Birdon Contracting Pty Ltd (MD Tom Bruce).
C. Help resolve the threat to Tinda Creek water course into Wollemi Wilderness/National Park/World Heritage Area, as well as to other local land holders.


The sand mine is located on private property 1km east of Wollemi NP on Tinda Creek next to Singleton Rd about 37 km north of Colo River village. On 29 July 2008 HCC planning officers formally recommended in an extensive report to full council that due to breach of condition 4 of a 1996 development consent - requiring details of
"Erosion and sedimentation controls [to be] submitted and approved by Department of Land and Water Conservation prior to any works commencing"
1. the whole consent had lapsed,
2. that a s.96 modification (expansion by 1.3M tonnes) under the planning legislation could not proceed, and
3. that "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".

HCC officers relied in part on letter of legal advice from the Environmental Defenders Office 27 Sept 2006 for their recommendation. On the same day a community objector Neville Diamond, previously a neighbouring landholder, made a pre-emptive application to the Land & Environment Court (Diamond v Birdon & HCC 40733 of 2008) seeking declarations of lapsed consent and orders for rehabilitation of Tinda Creek.

This pre-emption was felt necessary given apparent HCC acquiescence to:
- consistent non compliance with consent conditions by the mine back to 1986 including $10,000 fine in 1989 under a previous operator for water pollution of Tinda Ck, and currently 40% out of area on Lot 2, and no DA consent ever granted for a bypass channel on Lot 1;
- apparent bias by elected Liberal Party councillors to ignore various breaches of planning law and consent conditions from 1986 to 2008;
- Liberal Party councillor verbal advice they would reject their own council officer's recommendations.
Expediently HCC on legal advice decided to defer any decision on the sandmine until resolution of the Diamond litigation and decline any active support to date. Sand mining continues. Preliminary litigation issues for Diamond personally include questions of security for costs, Diamond's impecuniosity and status of previous consent orders, to be heard on 21 October 2008 with evidence for Diamond to be filed by 30 Sept 2008.

If Diamond fails at the threshold the intention is for this writer to immediately file new legal proceedings against Birdon with help from EDO and others in his own name.

As court agent for Diamond the writer has contacted the NSW policy officers for the biggest NGOs with coverage of this issue namely The Wilderness Society (NSW Campaign Coordinator Peter Hooper) and National Parks Association (Nikki Hammond Acting Exec Officer for Andrew Cox) seeking endorsements regarding public interest aspect of the litigation. Similarly Kirsty Ruddock as principal of the Environmental Defenders Office. We have moral support of Hawkesbury Council Watch Inc, East Bend Resource Centre Inc and other local interests.
There are various other irregularities beyond the scope of this litigation including:
- HCC order on Birdon 25 June 2008 for refusal to pay $48,472 outstanding s.94 development contributions "towards RTA's road maintenance program";
- failure to obtain permission for a DA over Crown land between 15.24 and 20 metres in both 1996 and 2006 extension application;
- breach of water license of 40 ML/YR on their dredge pond given DWE officer Conners usage report 155 ML/YR dated 16 March 05;
- breach of an EPA/DECC license issued 2005 to prevent scowering of the bypass channel.


1. Picture of smaller of two dredge ponds onsite 14 March 2007
2. Picture of before and after 1985 and 2005


TWS - Peter Hooper
NPA - Nikki Hammond
EDO - Kirsty Ruddock


Picture above/below: Stakeholders inspect the flow of Tinda Creek under Singleton Rd toward Wollemi World Heritage area during an inspection supervised by Hawkesbury City Council on 14 March 2007

Picture above: Greg Hall of Hawkesbury City Cuncil is third from right. Consultant hydrologist for HCC, Chris Jewell is last on right.


Here is a quote from Chris Jewell,  Hawkesbury City Council expert consultant hydrologist in his 2007 report which really sounds the alarm, in combination with CSIRO July scary predictions (below, effectively that extreme temperatures will increase from 1 in 20 to 1 in every 2 years):
In Independent Assessment 0 6102 Singleton Road, Colo Heights June 2007  by C.M. Jewell & Associates Pty Ltd, tel. 02 4759 3251, www.cm-jewell.com.au

[at page 11 after expert Jewell notes during drought evaporation is much greater effect on Tinda Creek even allowing for less plant transpiration] [bold added]

"As the project proceeds through the stages outlined in the EIS, evaporation losses from the ponds will increase, so that by the end of the operational life there will be a 34 per cent reduction in outflow to Tinda Creek. Post-closure, there will be a net loss to the creek system of about 140 ML/year, or 37 per cent of the natural flow, due to evaporation from the ponds.

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."

[at page 12]


..... On the basis of CMJA's recent experience in gaining project approval and carrying out long term monitoring on other sand extraction sites in NSW, the state regulators have required higher standards of impact assessment and monitoring than is the case with this site. In particular CMJA notes that  groundwater window lakes (or mirror lakes) in final landforms do not receive approval where groundwater resources are an issue of concern.

[at page 12].....Conclusions

.....[repeats the point above]

Recommendations ....

It is recommended that: ....

* Council does not consent to changes to the approved development that result in a larger area of open water in the final landform than 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."

As regard's expert Jewell's comments regarding drought compounding water loss from open bodies of water the CSIRO July 2008 make these scary predictions re drought conditions 1 every 2 years in future compared with 1 in every 20 years:

Minister's media release here:      

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

which leads to this:

which leads to this a 30 odd page pdf file:

We had trouble downloading in a firefox browser but the explorer browser works well.

Posted by editor at 12:10 PM NZT
Updated: Tuesday, 7 October 2008 11:28 AM NZT

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