We appearend pro bono as court agent on 3 and 4 Sept 2008 under s.63 of the Land & Environment Court Act 1979 sitting up at the bar table with the big kids barristers Peter Tomasetti for Coca Cola Amatil, and Matt Fraser counsel for Gosford City Council. The case was Kettle [agent for Coca Cola Amatil] v Gosford City Council and Diamond (as intervenor) 10429 of 2005, which has taken many twists and turns over the last 3 years with this being only the lastest chapter.
We have lots of straight legal reportage of the experience which is appropriate given the judgement has been reserved for several weeks. We notice this report by community objector Peter Campbell not so happy post hearing, pre council elections, with the impact of the GCC legal team which was the thinking behind getting myself to bolster things with an intervenor party participation:
We may return to this web item with some extra reportage of how the the 2 day case unfolded: Some highlights at this stage:
- the inspection at our insistence on the first half of the first day went ahead despite some preliminary diplomatic skirmishes suggesting it should be delayed (or even cancelled?) by GCC's lawyer for some curious diplomatic reason to do with an LEC's judge's ceremony promotion to the Federal Court. My objector Neville Diamond said his piece a bit nervy and disjointed but always doing his best. We saw the monitoring bores tracking water from the chicken farm next door and the watercourse which used to support substantial native flora. We heard from local farmer Mr Hitchcock who acquitted himself very well.
- When it came to the court expert Anthony Lane's evidence Gosford's counsel Fraser quietly suggested to us we didn't need to ask any more questions as he had covered our concerns already. We declined his overture evoking a frown. Cie la vie.
As Fraser finished up his 'xxm' of Lane and the Commissioner's prompting revealed that 30 years ago Mr Lane's first job was working for the original Mt Franklin bottled water company which we understand was taken over by Coca Cola Amatil later on. Commissioner Moore stated 'this was too long ago' to matter now [in terms of actual or perceived bias]
- we questioned expert Anthony Lane on what he understood were the credentials of another expert he actively consulted, namely Dr Noel Merrick of the UTS national centre for groundwater management. Our question: 'He's not a hydrologist is he? Ans: Is he not?" The clear implication of Mr Lane's evidence - who is based in Melbourne - thought he was consulting a hydrologist. [Our advice has always been that he is an expert computer programmer (?!).] Ironically we were the ones who insisted Dr Merrick's 170 page report go into evidence, but then his later verbal advice be read down for working on a joint venture proposal with Coca Cola Amatil.
[What didn't get into evidence is that we are advised the local Catchment Manageement Committee are quite shy of any involvement with any study driven by CCA over concerns of independent auspices such as via the state department DWE.]
- The Commissioner(s) were both quite sympathetic to consideration of climate change as a real factor under a recent decision by the Chief Judge in the Taralga Case (about wind power apparently). Our tendering of a report by the CSIRO of July 2008 - which otherwise would have never been produced - indicating much greater extreme heat and drought events (in fact once every 2 years up from every 20 years) was accepted as important.
Rainfall at Peats Ridge would not be drastically affected argued the counsel for CCA but it didn't seem to cut through as much. Perhaps because we submitted a meteoroligist report for May 2008 as driest month for NSW and Sydney and local Mangrove Mountain on record.
And then there is the extreme heat - demand factor even in good rainfall given the springs feed the local creeks to the local water supply for Gosford/Wyong: People drink more bottled water and for crops and for local water supply when it's hot.
Indeed we asked expert Lane why no data provided to him by CCA to analyse regarding the hot high demand period of Dec 2005 to Feb 2006? He couldn't answer for CCA of course. Point made.
- There was much debate from CCA counsel over whether the hallowed Precautionary Principle was a valid concern in this case. Lane in his report said this:
- The Corporate Affairs Manager Alex Wagstaff was asked in my cross examination if he supported standard bush regeneration principles on the watercourse - putting aside whether it is permanent-intermitent versus ephemeral. He said emphatically "no" but he did still support the idea in principle. Mmm.
- We did our best to press the limitation of CCA to bottled water not bulk tanker export from the site and rehabilitation of the water way under the Pittwater precedent case. Even though strictly speaking only a court agent we were chuffed to be referred to as a "legal practitioner" by Commissioner Moore.
Overall it was a very educational experience and a pleasure consulting with and supporting the concerns of the local landholders and objectors. Crossed fingers. Mr Tomasetti as counsel for CCA said goodbye with "see you next time". If I had to hazard a guess I would say team work won on the day.
Interestingly CCA counsel mentioned as a "public company" they had to make provision if their DA approval for 66 ML/YR was cancelled leaving only 25 ML/YR which would run out in only 3 weeks or so. While at 35ML/YR they could get to November.
Here is a copy of our extensive submissions of which only some sections (eg F1, F2, F3 and documents referred to there) were progressed in the hearing for jurisdictional reaons: Nevertheless they all remain educational to the general public:
By the end of the case even CCA agreed there needed to be a formula for discipline on their water use as per their preferred single parties expert Anthony Lane formula here presented to the court:
The trouble with Lane's somewhat academic regime is that it relies on the state dept DWE for its efficacy and there is real tension between the LEC court and DWE state agency over who is really the decision maker. The LEC under the law, the DWE under political masters.
Indeed evidence was given by local community leader and farmer Margaret Pontifix that DWE in the past at least cannot be trusted to be objective over discretionary licensing decisions.
Nor is this saga over with Ian Cohen MP having submitted questions on notice in the state parliament late in August 2008 asking how Coca Cola Amatil got a 41ML/YR increase while local farmers are routinely refused. What was the assessment process, asks Cohen MP on behalf of local objectors. Further we have learned of a secretive external auditor consultancy called Internal Audit Bureau into both Gosford City Council and DWE South Coast Office commissioned by the respective levels of government ... but that's another story on SAM (next).