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Sunday, 22 March 2009

Judgement reserved in 'illegal sandmine' case impacting Blue Mtns world heritage
Mood:

quizzical
Topic: legal

Picture: Current image from Google Earth dated around 2003, says one objector. The image reveals silt tailings - which act like quicksand - to the very surface of the tailings pond. The council approval in 1996 of the final lake form is contrary showing tailings should be at 15-20 metres depth for public and environmental safety.

We wrote recently here about the 20 year saga of a 'farm dam' operating really as a sandmine dominant purpose:

8 March 2009 Submission to NSW Govt/DECC lawyer Gordon Plath on fine silt deathtrap in the Blue Mtns WHA, Hawkesbury LGA
Topic: legal

As far back as 1989 the operation copped a $10,000 fine in 1989 for water pollution of Tinda Ck into the Wollemi National Park.

Then Hawkesbury Council in its wisdom approved the illegal sandmine in 1996 after mediation with all private and govt agencies and community. One retired councillor is known to have done the excavation work on the original works.

Since that time various neighbours have reported a string of mysterious and violent events. A home invasion and sabotage of waste tankers. Sheep on a nearby hobby farm all being shot dead. Bushfire mysteriously ignited and burning out fences worth $10Ks. Rave parties and all the recreationals that go with that.

In 2004 an extension of time variation lodged in 1999 was finally approved literally 5 years later with the sand mine operating regardless.

In the current proceedings Birdon Contracting Pty Ltd v Hawkesbury City Council 11133 of 2008 the sandmine is seeking a 1.3M tonne "variation" of the existing mine. Trouble is they need to expand because they have buried dangerous 'silt fines' - the clayey leftovers of washing of sand extracted - at the surface of the tailings ponds instead of 15 to 20 metres deep. So they have breached their 1996 approval. What's worse the final landform 'lake' will be a death trap for wildlife and people as a result of shallow quicksand just below the water surface (as pictured above).

Last week we wrote to the peak green groups following this case:

Sent: Wednesday, March 11, 2009 9:19 AM
Subject: HCC GM instructs council lawyer for inspection to go ahead on first day 16 March after all

Dear conservationists
I'm advised via objector Diamond apparently in conversation with the General Manager of Hawkesbury City Council Peter Jackson last night my letter of concern has caused Jackson to reconsider - and he has directed his lawyer Stephen Griffiths - a senior partner no less of firm Pikes - to go back to the court and seek the inspection proceed on the first day as per usual court practice.
Lawyer Griffiths has called Diamond again this morning literally as writing this and confirmed this application will go ahead this morning. Fingers crossed.
That indeed was the purpose of my letter: That any orders by consent waving the illegal sandmine through would not go quietly. This is good, assuming it happens by Monday 16th March when the case commences.
Russel Byrnes who is solicitor for sandminer Birdon in response to my letter of concern has made various threats to me about my legal career even though I am acting as agent only not solicitor - as permitted by the legislation of the LEC. I have copied these threats to the EDO for their file.
And lawyer Byrnes denies being a business partner of Birdon Contracting Pty Ltd, the sandminer which was put as a question. But this is what he said in his sworn affidavit sworn 20 October 2008 at para 16 (sub paragraphs 54 and 55) and I quote:
"Mr Bruce also knows that my interest in such a venture [another sandmining proposal] is in partnership with his daughter and son in law who are my partners in other business venture."
I repeat this is Byrnes own affidavit. Clearly Byrnes is more than just a lawyer in this current matter, with personal and financial ties with the family of managing director of Birdon, Tom Bruce.
It's not at all relevant but I understand Tom Bruce likes to take an annual vacation skiing the slopes of Aspen. He's done very well out of this illegal sandmine to date if not other business. And now he wants to sell this one to Adelaide Brighton Cement and cash out. And avoid responsibility for all the damage done too.
And so the preparation for the case 16 to 18 March continues. We are in the clinches and care and attention to detail is a priority now. Wish us luck.
Yours truly
Tom McLoughlin, agent for the objector Neville Diamond.
.........................

As it happens the court decided later that Wednesday 11 March 09 instead to hear a preliminary legal issue on the first day and not proceed with the inspection. In case this question made the whole 3 day hearing redundant. Fair enough too.

Trouble is the preliminary issue became a 3 day hearing last week attended by this writer. There is now a reserved judgment and that's before even taking evidence and objectors submissions with the court standing in the shoes of the council as consent authority. This second half will have to be rescheduled sometime, if at all. That's the normal process of 'a merits' review in what is known as class 1 of the court's jurisdiction with the court as the council reconsidering the whole thing.

We can report that solicitor Stephen Griffiths of Pike Pike & Fenwick for HCC was very vigorous and at times we think masterful in presenting the evidence and legal authorities. The whole argument was about consent condition 4 back in 1996 and whether 'details of erosion and sedimentation control' had been 'approved by the Department of Land & Water Conservation', now the Dept of Water & Energy. No doubt to avoid the very $10K fine for water pollution 7 years earlier in 1989.

Evidence from the manager of licensing from DWE Marwan El Chamy who was the relevant officer back in 1996 gave evidence in person. There was also appearances by owner of the mine Tom Bruce, DLWC/DWE officer Greg Brady and retired council officer John Pye. Curiously this last officer issued a letter of compliance for the sandmine despite admitting in the witness box that sandstone rock barriers were still outstanding.

The case for the sandminer depends on an April 1996 plan which includes limited side notes of erosion and sedimentation control which was in turn scrutinised and then reported on in Nov 96 to HCC, subject of an official mediation conference 4 Dec 96 and then built on later in Dec 96 with official extra condition 4 requiring (additional?) 'details approved by DLWC' . In effect Birdon say they recycled the April 96 plan without anything extra and got verbal approval by a 'phantom' DLWC officer. Manager El Chamy disagrees that a verbal approval would have been given and he certainly personally didn't give approval.

It was at times frustrating being in the court knowing about evidence that has not yet gone before the court given the preliminary nature of this phase of the case. For instance we understand that one retired legal officer for DLWC Ray Jerems wrote a legal advice contradicting the views of numerous departmental field officers that Tinda Creek did fall within the Rivers and Foreshores Improvement Act. That these officers saw that as their statutory approval role and that consent condition 4 mirrored that reality.

We understand from a senior source in the current DWE that the Jerems legal advice is 'rubbish' (actually a four letter word), the RFIA really did apply to Tinda Creek as per the views of variously Wayne Connors, Paul Bourne, John Ross in writing in the mid 90ies. But back at head office according to Jerems if DLWC had to treat Tinda Ck as under the protection of the RFIA with part 3A permits and buffers 'they would have to do it for all of them'.

That is a resourcing and staffing problem to protect smaller NSW waterways. Better to ignore the legislative duty? In other words systemic failure to apply the RFIA. The RFIA has now been replaced by another legislative framework according to senior officer El Chamy speaking to this writer outside the court last week.

Picture: Image from 1995 off the DLWC file of erosion and sediment hazard created by Birdon at Tinda Ck.

Now the decision of Justice Nicola Pain has been reserved in this complex long running factual matter.

However one very revealing exchange came on the second day. Stephen Griffiths for Council stated that if the judge decided in favour of the sandmine on the preliminary legal matter regarding enforcement of consent condition 4, and then also on the merits for an expansion there would likely be proceedings by 'government agencies and/or council' for breach of the Protection of the Environment Act and for non compliance with consent conditions.

One suspects the willingness of Hawkesbury Council to bring rigour so late in the day against Birdon sandmine takes a lesson from the furore over the preventable deaths reported in the Gosford Council Area recently, including here:

Monday, 2 March 2009
Gosford Council: Dick Persson expert administrator report to State Govt for over 3 weeks now
Topic: nsw govt

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