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Tuesday, 28 October 2008

Diamond Diary Part 4: Attacking the messenger, not the vandalism
Mood:

don't ask
Topic: legal

Picture: Taken March 2007, this was the wetland catchment of Tinda Creek until the mid 80ies when a farm dam was excavated and rapidly expanded without lawful approval into a sandmining operation, until 1996 when Hawkesbury City Council gave it retrospective approval.

This is the 4th part of the serialised Diamond Diary quoting the 60 year old activist's sworn affidavit in proceedings in the NSW Land & Environment Court 40733 of 2008. His case Diamond v Birdon Contrcting Pty Ltd & Anor was lost recently on technical grounds such that the substantive issues of illegal environmental vandalism have not been tested. He consents to his affidavit being reproduced here.

There are some deletions as marked based on legal considerations. Diamond's main grievance has been damage to Tinda Ck which crosses the Old Putty Rd aka Singleton Rd. The private land is sandwiched between Wollemi and Yengo National Parks which are both World Heritage listed and listed wilderness areas under the Wilderness Act 1987 (NSW).

In June 2007 a hydrological expert Chris Jewell working for Hawkesbury Council reported that the watercourse into the world heritage area has been cut by 37% and this will increase to 53% if the sandmine is expanded.

Neville Diamond's story continues:

My experience of menaces and a history of violence from sandminers at Tinda Ck

33. I was owner of a block of land subject to bank mortgage adjacent to the sand mine from 1981 to 1996 where I lived part time with my wife and child. During this time our sole source of reliable water was Tinda Creek until the sandmine started turning the water in the late eighties into a “chocolate milk shake”. Before this the creek was like expensive bottled mineral water.

34. The Stout family company Poyneed Pty Ltd operated an illegal sandmine from ‘a farm dam’ from 1984 to 1989 using Tom Bruce’s Birdon Contracting Pty Ltd for plant and equipment from 1989. When they started going out of business due to regulatory breaches, a $10,000 pollution fine, and ........ Birdon moved in as a business partner around 1989 especially as he was owed money by Poyneed. As I understand Birdon and managing director Tom Bruce became the controlling interest from about 2004.

34A. I also had a property with a house at Londonderry about 80 km away which I bought in 1984. Soon after I expressed concerns in 1985 about the unstable dam structures from the mining operation by Stout at Tinda Creek my wife suffered a home invasion on 6 Nov 1985 and beat us up, and menaced both of us and my 4 year old son with a 303 rifle. This event is referred to by Bignold J in his decision accepting my evidence in Farrell v Diamond 1990 at annexure 1 at page 4. I believe this was to warn me off any complaints at Tinda Ck in the future.

35. In 1989 as a result of a year of complaints about water pollution of our pristine and only reliable water supply and given my extensive local knowledge and experience of sandmining, the sandmine operated at Tinda Creek by the Stout family trading as Poyneed Pty Ltd - was fined $10,000 for water pollution. Colour copies of the water showing high turbidity – what I call a chocolate milk shake – from that time are found at annexure 27.

36. From that time on I was particularly harassed and threatened by certain staff at the sandmine some of whom remain working there for Birdon all these years later. In around1990 my house at Londonderry was shot up while myself and wife were in the building. My 2 tanker trucks, 1 table top truck and 2 cars were fire bombed twice around 1990. This resulted in reports to NSW police and I know who did it but they have never been prosecuted. I believe this was a revenge for the $10K fine and closure of the sandmine which had grown from a 3 ha farm dam to a 15 ha sandmine without any lawful development consent at that time until finally getting retrospective DA approval in 1996. For instance Council issued a stop work order in 1995.

37. One aspect of the menacing and criminal harassment was the systemic theft of my movable property on Lot 1 adjacent to the sandmine on Lot 2 including a licensed guns kept on the remote farm property. A list of the property that has been stolen by some staff at the sandmine is attached to a letter at annexure 26

I understand from the local police in the Hawkesbury that a man called ........ employed by Birdon was charged and convicted of illegal possession of a firearm belonging to myself and stolen from my house at Tinda Creek Lot 1 in about 1996. See annexure 28 for picture court exhibit on my returned gun when he was convicted of stolen goods in custody.

Soon after this theft all the sheep in the Walker’s neighbouring place were shot dead. The Walkers were allies of both myself and my agent Tom McLoughlin in the Wollemi Legal Fighting Fund. Attached as annexure ….. is a greeting card from the Walkers to Tom McLoughlin after we won the Mushroom Composters struggle in 1995-6.

38. In 1996 I was forced to sell my land at Tinda Ck by my bank because my tenants could not get clean water due to the sandmining such that I could not raise rent on the asset anymore and service the mortgage and was finally forced to a mortgagee fire sale after years of environmental impacts from the unlawful sandmine.

39. Even more recently the staff and owners of the sandmine habitually threaten and menace me because they see that it has always worked to some degree in the past. I refer to a transcript of evidence regarding ………… I refer to my affidavit 7 November 2006 regarding this history of violence against me typed up by my mother in large block letters at annexure 29 The affidavit refers to a PINOP which is police jargon for “Person in need of protection”.

40. I refer to a statutary declaration of Bill Sneddon dated October 2008 regarding ........ menaces and threats I experienced in 2005 and 2007 at annexure 30.

41. I refer to the uncontested affidavit seeking a postponement of the evidence in reply timetable to 13 October 2008 where I state:

6. Now I believe I have to take further advice and precautions for my security and to further investigate the gravity of death threats:. I have learned just today 23^rd September 2008 that an environmental activist in the Hawkesbury City Council Local Government Area has received a death threat 3 weeks ago and a death threat to his family, for democratic protest about some issues. I’m told these threats were from persons claiming to be with the ...... bikie gang. I am told at this incident the environmentalist was asked words to the effect of “Do you know Neville Diamond? He’s ruined a million dollar sandmine business. We’re going to do the same thing to him”.

7. The seriousness of the death threats are reinforced by the incident at the site inspection of the sandmine in 2007 at Tinda Creek with Hawkesbury Council officers and consultant Chris Jewell when an angry worker, who has been identified as ....... by plant manager .........., tried to assault me. This was only avoided by the intervention of Greg Hall of Council. This was reported to the police same day. I have also been forced to seek 3 apprehended violence orders against .............in 2004, 2005 and 2007 for death threats by him which on each occasion were settled by mediation with his solicitors. On the last AVO application and mediation ........ agreed to instruct all his employees specifically his foreman and the bikie member to not approach or threaten me.

8. I am already on the pension for stress and these incidents coming from the sandminers at Tinda Creek are affecting my ability to comply with the timetable.

42. My agent ......... (who is also an unemployed solicitor in NSW on a restricted certificate), is the source of the information about this latest death threat, via a local Hawkesbury environmentalist who came to see him in early October 2008 to in turn caution me. He has the name of the informant and I believe the threat was made.

43. In reality [it is alleged] Birdon have been pulling every dirty trick legal and ....... to avoid accountability over destruction of Tinda Creek and the LEC is the last hope for forcing them to obey the planning law.

Attempt to smear me with pollution fine via sabotage of storage tankers

44. In answer to the Birdon’s solicitor letter received by email 9 Sept 2008 where I am asked to make admissions as follows:

I refer to previous correspondence and hereby request that Mr Diamond disclose as to whether he has ever paid all or any of the fines and costs imposed upon him by Bignold J in Farrell V Diamond decision dated 9 May, 1990.

This is a reference to the vengeful sandminers continued their vendetta against me for seeking protection of Tinda Creek especially after the $10K fine on the sandmine. My tankers with hazardous waste water in storage at my Londonderry property were sabotaged releasing a serious pollution spill. This criminal act by sabateurs resulted in my prosecution - not for the spill - but for storage for so long without a permit, though the evidence showed the NSW Pollution Control Commission were well aware of my storage of the waste in those tankers for an extended period. I was also fined for not displaying a waste industry sticker on the windscreen – which had been smashed and the truck firebombed already. As a result I was fined a relatively low $2,100 for a serious pollution event because Bignold J accepted that it was sabotage beyond my control in Farrell v Diamond 1990 at annexure 1.

45. Vested interests associated with the sandmine have sought to use this pollution fine to spread a strategic smear and chill around me to diminish the status of my grievance. They attacked the messenger so HCC might ignore complaints of unlawful operation of a sandmine which only received a retrospective consent in 1996 from Hawkesbury City Council after 10 years of unlawful operation. And even then from 1996 continued to operate illegally for lapsed consent for breach of condition 4 – lack of state dept approved erosion and sedimentation control plans.

46. It is most ironic to me that after 24 years the Council has agreed with me in their latest report of 29 July 2008 that the sandmine’s consent has lapsed for failure to comply with consent condition 4. The truth is it’s been a cowboy operation all the way through with systemic breaches of consent conditions exploiting the remote nature of the operation and thugs who work there.

47. In 1997 I commenced legal action 10041/1997 against Birdon unlawful sandmining as referred to at at 1.n and 1.o in Byrnes/Birdon letter of 9 Sept 2008 setting out their Grounds for the strike out motion attached at appendix ……. The settlement of that court action, with no costs order, was based on an agreed option to purchase my block of land back from Birdon which they bought in a forced bank mortgagee sale at only $130,000 when the property was valued at $ 260,000

48. Again the criminality of certain staff at the sandmine came into play. I planned to use a certain asset – a bulldozer heavy machinery located on my former block of land at Tinda Creek on Lot 1 – to raise the $10,000 deposit for a bank loan. I had engaged a mechanic to repair the dozer to make it fit for sale.

49. In 2006 an innocent tilt tray truck driver called Owen Tonkin told me and I believe it to be true that in 1999 .......and ......... who still work at the sandmine arranged for him to pick up my dozer and effectively steal it using false pretences offering him a three way split in sale of the dozer. I bought it for $6,000 in the early 90ies and my mechanic Bill Morris rebuilt it. It was worth about $10,000. They stole the dozer effectively preventing me from raising a deposit to exercise the formal option by end of 1999. I reported it stolen in 1999. I spoke to Skarstrom in 1999 and he told he knew nothing about it.

50. As a result of all this nastiness by the sandminers when I lost my property in 1996 by forced mortgagee sale to Birdon I resolved to get inside the sand mining industry and learn how to reform the planning and environmental issues around this sand mining racketeering in order to get some personal justice for driving me off my land and to protect Tinda Creek catchment. My involvement in all kinds of public interest projects and working for Dixon Sands at Maoorta has mainly been about learning how to get justice at Tinda Creek. This is the case I want to finish and hope never to appear in the Land & Environment Court again.

51. I believe that ........ the aggressive and violent and criminal attacks on me and my family [are] a way of covering up ..... illegal sandmining activities from 1989 onwards. ......

(to be continued)

Previous posts in this series are here:

25 October 2008 Diamond Diary Part 3: Getting to grips with the costs regime in the NSW Land & Environment Court, Mood: not sure, Topic: legal