Mood:
sharpTopic: legal
Picture: Approach to Tinda sandmine quarry on Putty/Singleton Rd with Yengo NP in the Blue Mtns World Heritage area in the background. Tailings ponds are out of sight behind the cyclone sand washing plant in foreground. The site is an inholding surrounded by national park including Wollemi NP to the west. The mine itself is on what used to be headwaters of Tinda creek.
SAM wrote of this controversial sandmine previously here:
Friday, 28 August 2009Sandminer dupes Environment Court for approval to 2021 within world heritage precinct?
Mood:
Topic: local news
There we detail misleading and deceptive evidence by the sandminer expert Peter Jamieson regarding size of extraction exceeding the approval plan area.
Similarly the mine is opposed by peak green groups The Wilderness Society, National Parks Association, Blue Mtns Conservation Society, and Colong Foundation for Wilderness.
Although the mine is now extended and approved by the Land & Environment Court's Commissioner Brown recently it's been a rocky road for Birdon Pty Ltd as sandminer, and Hawkesbury City Council as regulator, in the world heritage area precinct: In the last year or so the opponents have noted:
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- 10 DECC (Dept of Environment etc) conditions inserted albeit waffly language
- mine forced them to dewater the highly evaporative tailings dam
- a chief of DECC engaged now, perhaps due to sudden death of their responsible officer Jo Zurrer only 45 years old with stroke in her office;
- exposed HCC failures to partially vindicate Diamond's crusade
- lawyer Webster, expert Jamieson, and mine manager Ray Bygraves on the backfoot re illegal behaviour.
- Birdon spent something like $200K in legal gymnastics to defend their history of vandalism and short payments of s.94 contributions.
- LEC did their job and heard the objectors at an onsite inspection, with valid evidence and submissions
- objectors starting to move on from this planning farce
The LEC has not seen fit to web publish the verbal decision handed down by Commissioner Brown at 3pm 18th August 2009 witnessed by this writer and objectors.
Here is an earlier procedural contest which was lost by council and sandminer in favour of the non party objectors presided over by Biscoe J which has been published:
Birdon Contracting Pty Ltd v Hawkesbury City Council [2009] NSWLEC 143 (10 August 2009)
It has been suggested to us that because the final outcome before C'er Brown is 'an order by consent of the parties', there is no judgement to be published. However a decision by C'er Brown was in fact delivered verbally on 18th August 2009 cross referencing the evidence and legal submissions of the objectors. Indeed council and sandminer were unusually cooperative in this legal 'contest' so there was not much to decide there.
As indicated above wrong evidence was submitted to the C'er in making his decision. Cynics have suggested Council was not vigorous in pursuing the large number of blatant non compliances over 13 years by this sandminer.
Today SAM can reveal that the NSW Land & Environment Court presided over by Commissioner Brown in this part of the proceedings was also provided with the wrong Environmental Impact Statement. We have been told by a senior barrister that providing the wrong EIS 'will have serious consequences' for those involved.
Here is a picture of the redundant May 1995 EIS, next to the operative November 1995 EIS:
We are advised that the correct EIS may also have been removed from council's own file.
SAM as legal agent for objectors Messrs Diamond and Sneddon has inspected the the court exhibits including court bundle of documents from the parties being Birdon Pty Ltd (owned by Tom Bruce, represented by Russel Byrnes solicitor, John Webster barrister) and Hawkesbury City Council (represented by solicitor Stephen Griffiths, instructed by Chief Planner Matthew Owens).
The only EIS in court exhibits is "May 1995" - the incorrect EIS. We have written to council's lawyers on this very point previously. Why does it matter?
Here below at right (compare old EIS at left) for instance is the correct EIS requirement at p23 for
"In addition, a series of bores will be installed to monitor groundwater behaviour."
This requirmement for monitoring bores has the force of a consent condition as indicated in the picture below at the pink underline:
An issue in the recent LEC merits hearing raised by objectors was whether under clause 36, schedule 3, part 2 of the Environmental Planning & Assessment Regulation 2000, there have been sufficient non compliances to require a new EIS in 2009. We said there was failure to implement for 13 years the monitoring bores required by the EIS and the Nov EIS is critical to that claim, withheld from the LEC.
Indeed the monitoring bores were also the subject of a court order in 2005 via a consultant recommendations (see clause 4d "EcoWise" below) but still never implemented. Both that court order and the EcoWise report were excluded from the court bundle provided to the Commissioner, presumably to further mask the incredible non compliances in this case.
Here are the recommendations of the mystery Ecowise(Golder) report referenced in the 2005 LEC order requiring (again like the 1995 EIS) for the groundwater monitoring bores to be implemented, also exluded from the court bundle until the objectors submitted the documents:
Indeed the expert for sandminer Birdon (an engineer Peter Jamieson) was able to argue his water modelling was authoritive in the absence of such baseline monitoring bore data. Jamieson was contradicted by an expert hydrologist proper, Chris Jewell employed by Council. Jewell lamented the lack of monitoring bore data in his July 2007 report. But the council declined to pursue any cross examination of the water modelling report for the sandminer.
There are other irregularities in this environment case: A critical governmet memo (by DLWC) as to Tinda Ck falling within protections of the now defunct Rivers & Foreshores Protection Act is missing the critical 2nd page in the court bundle (at page 132):
Here is that memo in full and note 2nd page stating the Rivers & Foreshores Protection Act (now repealed) did apply to Tinda Ck:
Is this a fix being run through the LEC by a bogus 'order by consent'? Certainly we think the Chief Judge Brian Preston at the LEC who literally wrote the book on "Environmental Litigation" should be briefed on the irregularities in this case all at the expense of Tinda Ck. And so should the Dept of Environment as well as the Dept of Mines.
Stay tuned for the next installment in the Tinda Ck series of stories: When did approved plans become optional extras? When the sandminer says they are 'confusing'!?
