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sydney alternative media - non-profit community independent trustworthy
Thursday, 16 October 2008
Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am
Mood:  blue
Topic: legal

We missed our last Sunday Political Talkies posting for the first time in maybe a year because we were busy collating a 432 page affidavit of evidence for our pro bono client, environmental crusader Neville Diamond.

It was about this as per one of his letters of support:

Hawkesbury Council Watch Incorporated

Registered office: 65 Reserve Road, Freemans Reach 2756

To whom it may concern.

Re: 1.3M tonne expansion sand mine threat to Tinda Creek water source for Wollemi/Blue Mountains world heritage listed park.

Our group was established in August 2005 and has a membership of 1153. We became Incorporated on 24th August 2005. 

The goals of our group include ensuring integrity of the planning process in local government, sustainable use of water resources and the protection of the environment including national parks and wilderness areas.

We understand that expert hydrologist Chris Jewell as consultant for Hawkesbury City Council investigated the Tinda Creek site in 2007 and in his report to council is concerned about future reduced inflow - as a result of tailings ponds - to Tinda Creek then into Gibba Swamp, Wollemi Creek  and then into the Colo River. These waterways are all in the Wollemi National Park World Heritage Area.

We understand that the NSW EPA have also written in 2007 expressing concerns about the size of the tailings ponds at the sandmine causing excessive evaporation.

We understand HCC planning officers on 29th July 2008 recommended against any extension of the sand mine at Tinda Creek because it has lapsed consent and is therefore unlawful and must cease operations.

We understand that the Environmental Defenders Office have written a legal advice to Neville Diamond and copied to HCC that the sand mine's development consent has lapsed.

We support Neville Diamond's public interest litigation against the sandmine seeking to prevent further degradation of Tinda Creek water supply into the Wollemi National Park/ Blue Mountains World Heritage area.

We believe this is in the interests of justice and the public interest that he be permitted to bring his case in the Land & Environment Court.

We understand that I will not be liable for any costs, but would be pleased to offer moral support.

Yours truly,

Doug Bathersby


Hcw Inc


Yesterday we helped organise as court agent for Mr Diamond, this Notice of Motion and supporting affidavit to see if Hawkesbury Council will come in and defend their World Heritage jurisdiction. And if they won't, they we wonder who will. Nor can the state and federal ministers say their office has not been notified of the situation here. But first the Notice of Motion before Justice Sheehan of the Land & Environment Court this Friday anytime from 9.30 am 17 October 2008.

Form 20 (version 1)
UCPR 18.1 and 18.3




Land & Environment Court of NSW







Case number

40733 of 2008



Neville Diamond





First Respondent

Birdon Contracting Pty Ltd

Second Respondent

Hawkesbury City Council


Person seeking orders

Neville Diamond, Applicant

Filed in relation to

Applicant’s request for mediation, vacate hearing date


Tom McLoughlin, court agent

Contact name and telephone

Tom McLoughlin, Ecology Action Sydney


Email: ecologya@wix.com.au

Tel. xxxxx xxxxxx, 0410 558838

xxxxxxx xxxxxxx  xxxxxxxx 


Birdon Contracting Pty Ltd

Hawkesbury City Council


This motion is listed at


This motion is to be dealt with in the absence of the parties.


[on separate page]


1                           An order that the parties go to mediation under section 26 of the Civil Procedure Act 2005 (NSW).

2                           An order that the hearing date for the First Respondent’s Notice of Motion set down for 21 October 2008 be vacated.

3                           An order that Applicant and First and Second Respondents have leave to issue notices to admit facts by 28th October 2008, and the First and Second Respondents reply by 11th November 2008.




Signature of or on behalf of party if not legally represented


Signature of applicant



Court agent

Date of signature

15 October 2008


If you do not attend, the court may hear the motion and make orders, including orders for costs, in your absence.


Street address

Level 4, 224 Macquarie Street, Windeyer Chambers

Sydney NSW 2000

Postal address

The Land & Environment Court of NSW GPO Box 3565


02-9113 8200



Form 40 (version 1)
UCPR 35.1




Land and Environment Court of New South Wales



Case number

40733 of 2008



Neville Diamond

First Respondent

Birdon Contracting Pty Ltd

Second Respondent

Hawkesbury City Council


Filed for

Neville Diamond Applicant

Legal representative

Authorised agent

Tom McLoughlin, Ecology Action Sydney

Authorised agent reference

ABN 506 347 944 95

Contact name and telephone

Tom McLoughlin, Ecology Action Sydney


Email: ecologya@wix.com.au

Tel. xxxxx xxxxxx xxxxx, 0410 558838

xxxxx xxxxxxx xxxxxxxx xxxxxxx



Neville Diamond


xxxxxxxx Turramurra



15 October 2008

I Neville Diamond of xxxx xxxxxxxx  Turramurra 2074 do say on oath:

1. I have substantially complied with the court order to provide evidence in reply to the strike out motion by 13th of October 2008, and security for costs order, of the First Respondent. This is very substantial material which will take both parties some time to read and analyse.

2. There has been a general election of the full council since we submitted lodge our class 4 application on 29 July 2008 and the circumstances of the parties may have changed now in relation to the DA over the Tinda Creek sandmine since then with new councillors elected.

3. I have also provided to the other parties a draft Amended Application which raised several more causes of action relating to the unlawful operations of the Tinda Creek Sandmine.

4. I have also been in direct consultation with the re-elected mayor of Hawkesbury Bart Basset regarding problems with the chief planner’s report to full council on the DA of 29 July 2008 which was deferred upon notification of my class 4 application, and the Mayor agreed on or about 1st of October to meet me and discuss the problems with the report.

5. The serious errors in the report which are also contained in the evidence I submitted in reply in a sworn affidavit include:

(a)   No mention of the need for consent of the part owner, being the Crown

(b)   No acknowledgement of mining out of approved area on lot 2 of the site

(c)   Failure to address mining on adjoining lot 1 without approval

(d)   Failure to address mining out of sequence of the staged approval in the consent conditions

(e)   Worrying discrepancy between the Chris Jewell the independent expert for HCC and the planner’s report over 53% water loss to world heritage Tinda Creek

(f)     The report glosses over apparent breach of s.283 of the EP&A Regulation 2000 regarding false and misleading information in the s.96 application of the First Respondent namely (1) truncated location of Tinda Creek adjacent to the sandmine and (2) arguing the wrong diagram – SK2 - was the approved plan

(g)   No recognition of the 11 ha final lake form of the approval will now be increased to 17 ha (Chris Jewell) or possibly more given utter failure to rehabilitate in the past.

(h)   Obvious errors like reference at p69 to the EPA issuing water licenses when it is obviously the DWE

(i)      I am also concerned about rumours that the planner was also behind the now infamous Glasshouse planning decisions by Port Macquarie Hastings council which has led in part to the dismissal of the council.

6.      I understand HCC have responsibility under their Code of Conduct and the EP&A Act and the Local Govt Act to enforce consent conditions in the public interest. I further rely on the decision of Lloyd J in proceedings 98/40130 Baulkham Hills Council v Dixon Sands where he states “the applicant  [Council] is the body charged with the duty and responsibility of administering the Act within its area. It is thus acting on behalf of the public and the public interest.

7.      In this case for reasons known only to itself the HCC are [not] acting to enforce their own officer’s report which despite all the errors above still recommends closure of the sandmine for a lapsed consent. I have offered to withdraw my case against them as a party if they will join me in enforcing the planning laws in the public interest. I have a copy of HCC’s legal advice dated 29 August 2006  on their public file which I believe shows the HCC are exploiting me to do their job for them and exposing me to risk of a costs order.



Signature of deponent

Signature of witness

Name of witness

Thomas Joseph McLoughlin

Address of witness

xxxx xxxxxxxxxxxxxx

Capacity of witness

Solicitor in New South Wales


Here is the networking email to the Hawkesbury City Councillors and copy to state and federal govt ministerial offices:

----- Original Message -----
From: Ecology Action 
To: Mayor Bart Bassett, Cr Barry Calvert, Hawkesbury City Council, Cr Kevin Conolly, Cr Christine Pain, Cr Bob Porter, Cr Paul Rasmussen, Cr Rex Stubbs, Cr Leigh Williams, Cr Rex Stubbs, Cr Leigh Williams, Pike Pike & Fenwick
Cc: Ben Pratt for Minister Peter Garrett, expert hydrologist for HCC Chris Jewell, SMH journo Ben Cubby, Kirsty Ruddock principal solicitor for NSW EDO, Keith Muir Director Colong Foundation, Peter Cooper The Wilderness Society, Jacki Verzi Public Officer Hawkesbury Council Watch,  Andrew Cox Exec Officer National Parks Assoc, Don Cameron for Blue Mtns Conservation Society, Cate Faehrmann for NSW Nature Conservation Council , Rosalie Chapple Blue Mtns World Heritage Institute, Scott Hickie for Ian Cohen MP, NSW Stateline, Deputy Premier/Minister for Environment, Minister for Local Govt, Simon Benson Daily Telegraph
Sent: Thursday, October 16, 2008 2:19 PM
Subject: Attn HCC Councillors call for formal mediation re sandmine threat to Tinda Ck Blue Mtns World Heritage

Dear Hawkesbury City Councillors
The following stories were posted recently on the independent news website www.SydneyAlternativeMedia.com/blog
a the links below relating to your local government jurisdiction. The site receives about 25,000 pageviews a month on average including from the mainstream media journalists.
The links are as follows:
Monday, 6th October 2008
We are also in contact with various stakeholders about the future of Tinda Creek just as we opposed the Mushroom Composters Pty Ltd proposal back in 1995, in that case withdrawn by the developer, including:
- green groups (Colong Foundation for Wilderness, The Wilderness Society, NSW National Parks Association, Blue Mountains Conservation Society),
- local stakeholders (eg Hawkesbury Council Watch),
- academic researchers at Blue Mountains World Heritage Institute
- office of new Minister for Local Government Barbara Perry
- office of new Deputy Premier and new Minister for the Environment
We call on HCC leadership to support a mediation process to be discussed by formal Notice of Motion before the Land & Environment Court tomorrow 9.30 am Friday 17 October 2008.
In this way Councillors can actively support the report of your chief planner Matt Owens of 29 July 2008 to full council - at least in respect of the recommendation that the sandmine at Tinda Creek has a lapsed consent and that a whole new DA and EIS is required not least to protect the Tinda Creek World Heritage area:
"[at page 70] Recommendation:
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 2 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.
Earlier this week pursuant to the orders of Justice Pain of 8 September 2008 we submitted a 41 page affidavit by Mr Diamond, with another 390 pages of carefully cross referenced evidence detailing various problems including for instance the increase of the proposed lake final landform proposed by the sandminers up to 22 ha in size. This compares with the original approval of lake area of only 11 hectares (Letter of Tom Bruce for Birdon Contracting Pty Ltd dated 2nd May 2008 to Greg Hall/HCC)..
For instance council's own report obtained from independent hydrologist Chris Jewell's stated June 2007 that:
"[at page 11 after expert Jewell notes during drought evaporation is much greater effect on Tinda Creek ]
"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."
Councillors may not be aware of this alarming report by the CSIRO in July 2008
In effect the CSIRO predicts that extreme temperature and drought conditions are likely to happen once every 2 years now increased from 1 in every 20 years. This is a major challenge for all land management and planning decisions. This 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 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].
Please do not hesitate to contact the writer by return email or tel. xxxxxx xxxxx or 0410 558838.
Yours truly, Tom McLoughlin for Neville Diamond


Posted by editor at 9:12 PM NZT
Updated: Thursday, 16 October 2008 9:41 PM NZT

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