Mood:
not sureTopic: legal
Picture above: Lands Dept aerial photo 1998 of Maroota district showing sand mining with gold star indicating unlicensed water pumps of different operators at various times over the last 20 years in Maroota:
Our source advises that Senior Planner Sam Haddad has been associated with approving a controversial, environmentally destructive development in the past, well before the now famous Catherine Hill "land bribe" finding by Justice David Lloyd of the NSW Land & Environment Court (LEC) , or murder of Mr McGurk causing a parliamentary inquiry into planning issues.
Indeed Judge Lloyd's name comes up again hold the line on good planning practise in 1998, as does Planning officer Sam Haddad and an allegation of "two green lights" being issued according to a sand miner applicant with his gun barrister to load on the pressure. Read on.
Dixon Sands (Penrith) Pty Ltd out at Maroota 45 km north west of Sydney (in the picture above) were shut down by Baulham Hills Council in 1998. It went to the LEC and David Lloyd's reputation as a hanging judge was in action with this devastating decision against the sand miner costing them millions of dollars in a shut down. Here is the decision:
BAULKHAM HILLS COUNCIL v. DIXON SANDS (PENRITH) PTY LTD ORS [1998] NSWLEC 316 (18 December 1998) [100%]
(From Land and Environment Court of New South Wales; 18 December 1998; 42 KB)Land and Environment Court of New South Wales
Record of hearing
Judge Lloyd J
Number 98/40130
This was during what became known locally as The Sand Wars between various miners and local community groups reminiscent of a Mad Max script.
The decision of Lloyd J late 1998 is very severe, to quote (with bold added):
57. I have come to the view that the applicants should not receive the benefit of the Court's discretion for the following principal reasons.
* the sand mining is now being carried out on the land without consent;
* the sand mining being carried out on the land is designated development. The development thus has special status under the Act, which includes the involvement of others as well as the applicant. The Act requires the views of members of the public and other authorities to be taken into consideration before such development is to be permitted. It would be contrary to the scheme of the Act to allow the development to continue without consent;
* the development has been carried out in breach of several of the conditions of the consent and in breach of the provisions of the EIS and the supplementary report to the EIS. I have referred in paragraphs 10-48 above to these breaches, some of which are continuing;
* many of the breaches of conditions and of the provisions of the EIS have been influenced by considerations of commercial expediency. That is to say, where considerations of commercial expediency have, in the respondents' views, outweighed the requirements of the conditions of development consent and the provisions of the EIS, the considerations of commercial expediency have prevailed;
* apart from the hours of operation, the haulage road and the five year limit to the term of the consent, no application has been made to modify those conditions of consent or provisions of the EIS which are said to be commercially impractical. The respondents have instead unilaterally decided that any inconvenient conditions or provisions will be simply ignored;
* many of the breaches have had adverse environmental consequences. For example, the failure to grant the right of way for the haulage route has resulted in traffic being adjacent to the area occupied by the rare plant kunzea rupestris; the ineffective sediment controls have resulted in sediment entering bushland on the adjoining Crown land; sand mining has been undertaken within the 50 metre buffer to the kunzea rupestris, thus compromising the survival of that rare plant; the absence of the ten metre vegetative buffer has meant that there is no visual screening to the development; the excavation below a depth of 15.2 metres has thus created a deeper excavation which in turn makes compliance with condition 2 impractical and rehabilitation more difficult; the breach of operating hours, intended to limit the times at which trucks enter and leave the site, may well have had an adverse impact on residents who live along Old Northern Road; and the abandonment of the extraction plan and of staged extraction and rehabilitation has resulted in almost the whole site remaining in a disturbed state;
* the applicant 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 in the public interest. The Court is thus less likely to deny relief than it would in litigation between private citizens;
* it seems to me that the respondents have, throughout the whole of the period of the consent, been motivated by considerations of commercial expediency when such considerations conflict with the conditions of development consent and the provisions of the EIS;
* as noted by Mahoney JA in Warringah Shire Council v Sedevcic (at 346):
"The courts have, under the various planning regimes, emphasised the significance of compliance with planning requirements and the danger of allowing individual hardship in particular cases to erode the general operation of planning schemes. These considerations are no less relevant at the present time."
This consideration, it seems to me, has even greater force where the case is one which involves designated development;
* the present predicament in which the respondents find themselves is entirely of their own making. They knew when the development consent was to expire. The have only belatedly set about preparing a new EIS for a new development application to continue the sand mining. They have belatedly made an application for the modification of the consent pursuant to s 96 of the Act by amending Condition 6 to provide them with an additional period of twelve months;
* in short, I do not think that the respondents can be trusted. I have considerable doubts as to their willingness to comply with all the conditions of the development consent and the provisions of the EIS which are in conflict with considerations of commercial expediency. The respondents' conduct suggests the contrary;
* whilst there may be some financial penalty as a consequence of the respondents' activities being restrained, I note that there is evidence that the subject land is not the only source of income of the first respondent. It has other sand mining activities elsewhere, which will continue to provide it with income. I also note that the agreement between the first respondent and the land owners (the second and third respondents) may be terminated by them if sand extraction is no longer possible. If as a consequence of the Court's orders in this case the agreement is terminated, then the land owners would, it seems, be free to enter into another agreement with some other operator.
58. Accordingly I make the following orders:
1. The first and second respondents, their respective servants and agents abstain from using, permitting to be used or causing to be used the land being lots 196 and 29 in Deposited Plan 752025 within the Parish of Cornelia and County of Cumberland and being contained in Folio Identifiers respectively 196/752025 and 29/752025 situate on Old Northern Road at Maroota for the purposes of an extractive industry and sand mining (except for works of remediation or restoration) until such time as a development consent permitting any such use is granted.
Meanwhile the dubious operations of PF Formations Pty Ltd, commercial rival of Dixons, in the same Maroota locality went on their merry way apparently with Council staff blessings.
This perceived differential of local council treatment, as well as intrinsic impacts, was at the heart of the conflicts with the local council and the local objectors also.
Picture: Dixon Sands operation in 2008 EIS for extension of their development approval area.
What we find most fascinating is this scenario according to our source: Patriarch Ken Dixon, who is now an invalid, and his heir apparent, son David Dixon having been burned badly by Lloyd J, then organised a conference with non other than senior planning officer Sam Haddad, over a year later in 2000. Also was present was the barrister for Dixons by the name of "Phipps". Our source now thinks it was Jerrold "Cripps" but we don't know. There is no barrister currently called Phipps in NSW according to our search of the bar assocation here 9 years later.
We don't know if it was Jerrold Cripps, later to become Chief Judge of the LEC, and head of ICAC. Dixons apparently wanted '"the best". Cripps resume' does suggest he was in private practise during this time as here via open source
http://www.icac.nsw.gov.au/download.cfm?DownloadFile=527F7EDF-D459-AD43-543B0677CCD11B3B
THE HON JERROLD CRIPPS QC
2004-present - Commissioner, Independent
Commission Against Corruption2000-present - Member of the Court of Arbitration of
Sport2001-2004 - Acting Judge of the New South Wales
Supreme Court and Court of Appeal1992-1993 - Judge of the New South Wales Supreme
Court and Court of Appeal1985-1992 - Chief Judge of the New South Wales Land
and Environment Court1980-1985 - Judge of the New South Wales Land and
Environment Court1978-1980 - Judge of the District Court of New South Wales
A barrister is obliged to accept clients according to the taxi rank rule and we can't say the miner or their lawyer did anything wrong pressing their case. What we worry about is the selective open door policy by the Dept of Planning or as Quentin Dempster calls it "influence peddling".
David Dixon reportedly then told our source after the meeting with planning officer Sam Haddad that "we got 2 green lights". Meaning they would be approved by Planning way ahead of the actual public process, to recommence sandmining and so it turned out apparently. This set off another litigation in 2004 here in favour of the sandmine via the NSW Dept of Planning:
Diamond v Minister for Planning New South Wales and Another (No 2) [2004] NSWLEC 254 (24 May 2004) [36%]
(From Land and Environment Court of New South Wales; 24 May 2004
But what has got us puzzled is what is meant by "two green lights" back in 2000, which then led to an amateurish, failed community legal challenge? Was that private meeting official planning process? Absent public submissions and application of planning rules according to merit?
Was the meeting in 2000 transparent, recorded on file notes or not, as per scrutiny of more recent cafe meetings with Graeme Richardson for an unrelated development reported on NSW Stateline, as here in due course, last night 23 October 2009?
All very interesting because we have heard allegations that another council Penrith, with a big sand mining sector was running a bribes book by one of the officers many years ago. Whether the book still exists we don't know.
