Topic: legal
To the Chief Judge Land & Evnironment Court, Brian Preston J
CC Counsel for Dept of Water & Energy, Tim Holden
Counsel for Dept of Environment & Climate Change
Stephen Griffiths, Pike Pike & Fenwick
General Manager, Hawkesbury City Council
Russel Byrnes, solicitor Birdon Contracting Pty Ltd
Environmental Defenders Office
National Parks Association
The Wilderness Society
Colong Foundation for Wilderness
Hawkesbury Council Watch
Minister for Environment NSW
Green Party MPs
Sydney Morning Herald
Sydney Daily Telegraph
Dear Chief Judge
Birdon Contracting Pty Ltd v Hawkesbury City Council no. 11133 of 2008 set down for 16-18 March 2009
I take the unorthodox approach of writing this open letter as agent for objector Neville Diamond supported by peak non government groups opposing an illegal sand mine adjacent to World Heritage Blue Mountains/Wollemi National Park at Tinda Creek. My letter is about the process and efficacy of the LEC.
From before you were a judge as counsel for Baulkham Hills Shire Council over sandmining at Maroota in the mid 90ies I have been monitoring the performance of your Land & Environment Court in my role as a vocational public interest advocate, and community media practitioner. And I've reported your fine speeches to the Environmental Defenders Office/Sydney University Law Conference.
Nevertheless it's a general conclusion of the non government sector, right or wrong, that the LEC has via the oppressive costs regime and political pressure become the developers court despite the fine intentions of the 1979 legislative model creating the court, the Planning Act and so on: That the LEC is being crushed by the weight of dark forces: Money talks and public interest walks. Lawyers get paid and the public interest goes begging.
There are honourable exceptions like the recent $400K fine for illegal landclearing of an internationally protected wetland. But the traffic is nearly all the other way, including by reversal of court decision by a corrupted parliament on a diet of developer donations.
So much for real politik.
Now we learn from Stephen Griffiths/Pike Pike & Fenwick, solicitor for Hawkesbury City Council, of cancellation of a court inspection scheduled for 16 March 2009 in Birdon Contracting Pty Ltd v Hawkesbury City Council no. 11133 of 2008. See letter attached. The fix, your honour, is in.
We are advised by Griffiths this was due to the approach of Russel Byrnes solicitor (and business partner?) for Birdon to the registrar 'so as not to waste the time of the court of 6 hours driving out to the site'. HCC apparently didn't even appear on the motion. Maybe they supported it?
One can well predict orders by consent will now proceed before even community objectors are able to give their evidence to the court sitting in the shoes of council on this s.96 variation hearing: Will the public interest objectors even get to put their evidence to the court of the 376,000 tonnes of illegal silt fines death trap proximate to the surface of a tailings dam, contrary to DA approval to bury at 15 metres depth, which would have been revealed by such an inspection? That might unravel the whole narrative and false postures of the illegal sandmine for over 13 years?
A mess that embarrasses HCC as well as condemns sandminer Birdon? That reveals the DWE regulator as having been duped or distracted from their duty?
Will the HCC's own expert report by hydrologist Chris Jewell of massive intervention of the water flow in Tinda Creek to the world heritage area even be ventilated? Or suppressed?
The details of this demonstrably illegal mine are published as a publicly accessible archive here:
8 March 2009
I respectfully submit your honour that the LEC is under scrutiny, as much as Birdon, as much as HCC and the DWE/DECC. The ngo sector and the court of public opinion will be watching the process and substantive outcomes of this case closely. Just like the recent Coca Cola Water Bottling Case where the public interest achieved some real satisfaction via the judgement of Commissioners Moore and Taylor late 2008, with this writer agent for the same public interest objector with NGO support via ruling of Pain J. Win or lose in the Birdon matter.
In the latter eventuality we will approach the the Administrative Decisions Tribunal using Freedom of Information laws as an alternative forum in which to get justice for the World Heritage Area and the safety of the public.
Please do not hesitate to contact the writer with any queries on tel. 9558 9551 or 0410 558838 or by return email.
Yours truly
Tom McLoughlin, agent for objector Neville Diamond, principal/owner www.SydneyAlternativeMedia.com/blog 25,000 readers per month.
Posted by editor
at 8:33 AM NZT
Updated: Tuesday, 10 March 2009 8:53 AM NZT
