We took a call yesterday from the SMH journo yesterday responding to our update. It's a reasonable report but as with these things there's some missing elements, and the headline is misconceived as dear reader you will see. So we thought we better fillout the complex and highly tactical background.
We emailed Ben Cubby this tipoff Friday morning copy to local objectors from Wednesday prior, as court agent for activist intervenor Neville Diamond in this Land & Environment Court case:
Sent: Wednesday, October 01, 2008 8:59 PMSubject: CCA got 35 ML/YR permanent with 66 ML/YR trial ongoing to 2011I have a copy of the orders and judgement from earlier today 9.30 am. Neville also.
I will mail a copy up to you guys - Jane I guess or Margaret or both.No costs orders against anyone. Our 2 extra consent conditions failed to get up, one to ban bulk export and the other revegetation - though this latter one got closer than I expected.
Moore/Taylor took serious notice of the climate change concerns - and we did well to get that evidence in even though we are not acknowledged directly about that. But given no one else ran the issue up except GCC in their pleadings (Statement in Reply document) says to me we had to be in the case all along and not trust GCC.Well done xxxxxx for photocopying for me the CSIRO report - again not mentioned specifically but you can see them leaning on it in their cross referencing of other legal cases on the precautionary principle re climate.
For me the critical turning point in the case was Lane being chosen as CAE [court appointed single party expert] who was alwys going to go for an approval.There is a paragraph too that gets it wrong regarding Peter Campbell evidence which he will want to read, mixing Peter up with Mr Hitchcock on the water sharing committee. There is also an embarrsing typo in the documents referring to trial until 2911! Sounds good to me but should read 2011.
The Commissioners also notably extracted in their judgement exactly the same text I lifted from Lane in my submissions, that contradicted his own verbal evidence to a fair degree.So in conclusion we kept the trial. And they got 35ML permanent.
Thanks linesman, thanks ball persons! Until the next tennis match.Kind regards, Tom
To explain: CCA wanted to get free of their existing 66 ML/YR trial from the 2005 judgement because a trial is just that - it puts their whole approval in jeopardy if they fail the trial. So there was no "extra water" in the court decision which has always been at 66 ML/YR since 2005. That is 66ML/YR before the court decision, 66ML/YR after the cout decision. But contrary to the Herald slant Coke are hamstrung by another 3 years of risk of trial conditions, as they should be. That's a job well done by the community sector.
In reality CCA squibbed the 66 ML/YR trial and paid the price with another 3 years - go back and do your homework. Good decision LEC.
This latest decision is not a win for Coke. No costs orders were made against any objector party, neither council or intervenor Diamond. Even when we didn't get our extra consent conditions. Indeed if we hadn't been there alot of climte change evidence would have been airbrushed.
Coke didn't get their trial conditions removed which was their stated case in their application and pleadings, so their appeal was only "upheld" to the extent of a minor increase of 10 ML/YR permanent increase free of the trial consequences in 2011 depending on the data at that time. Here indeed is that very pleading to delete the LEC/Moore C. prescient trial at 66 ML/YR imposed since 2005:
And notice Dr Noel Merrick in the story above as "the groundwater expert" at UTS. Our advice, and we are happy to be corrected, is that he is a computer modelling expert, not a qualified hydrologist. He is reported as admitting this at a boisterious public meeting in 2006 or so.
A quick look at his resume online indicates:
- Groundwater modeling – flow, solute, contaminants, stochastic.
- Optimisation modeling - resource management, groundwater allocation, dewatering, pump-and-treat
- Electrical geophysics - software, resource assessment, salinity monitoring
- Computer programming - FORTRAN, GAMS
Later on in the resume he indicates:
- PhD, 2000, University of Technology, Sydney.
- Graduate Course in Hydrology, 1981, The University of New South Wales.
- Graduate Diploma in Data Processing, with Distinction, 1980, The New South Wales Institute of Technology.
- Master of Science Research Degree, 1977, The University of Sydney.
- Bachelor of Science Degree, 1971, The University of Sydney
Professional Society Memberships
- MIAH - Member, International Association of Hydrogeologists
- MASEG - Member, Australian Society of Exploration Geophysicists
- MNZHS – Member, New Zealand Hydrological Society
No one is saying Merrick doesn't have knowledge of these, but is he the expert beyond his computer modelling career? We do wonder.
McLoughlin: 'He's not a hydrologist is he?'Lane " Is he not?"McLoughlin: "So that's your evidence, you understand him to be a qualified hydrologist?"
Indeed Dr Merrick has written in effect that he is a potential joint venturer with Coca Cola funding his proposals for future academic studies of Peats Ridge. In other words he appears to have a potential financial conflict of interest. In this case Merrick was happy to endorse a whopping '30% reduction in stream baseflow'. Too bad if you're an eco-system in the surrounding national parks dependent on that 30% of water resource!
The main parties in the litigation didn't want to consider Merrick's Nov 2006 academic report which tended to contradict his new view of things by May 2007 in the clammy embrace of CCA. This writer forced them to include it in evidence to the expert Lane. He got the report with only 4 days to interpret the complex data 14 July 2008, final report 18 July, hence the verbal consultations with Merrick direct as conceded by Lane in writing in his final report.
This Nov 2006 Merrick report is realistic about the historical over-allocations and uncertainties of unlicensed water use such that grant in 2005 to Coca Cola from 25 to 66 ML/YR (in contrast to any other rival applicant) was in the context of existing unsustainability. In other words in isolation the CCA increase is 'a minor impact' if it were a sustainable paradigm but in reality its salt into the wound and the local farmers know it. No double talk can hide that reality.
As we understand rather than address the local water supply systemic over-allocations which Dr Merrick implies in his own correspondence then minister Frank Sartor indulged in 2007 in some corporate welfare and approved a $27M water pipe down from the Hunter to keep the local Gosford Wyong water supply going.
Another minor nit pick in the SMH story. The NSW Nature Conservation Council rep might well have a valid opinion about the broad situation of bottled water. But they didn't have anything to do with the community litigation in the LEC in 2008. The people on this author's radar were Scott Hickie ably assisting Ian Cohen MLC, campaigner Jon Dee, Clean Up Australia and to a lesser extent Waverley Mayor Ingrid Strewe (till recently) and similarly Peter Macdonald of Manly council.
An extensive history of the latest litigation and our role as SAM editor sometime court agent can be found here:
Monday, 29 September 2008Coca Cola Amatil to make declaration to the stock exchange any day now?
Mood: accident prone
Friday, 19 September 2008Gosford Council road tragedy: Subpoena skirmish on planning a partial insight into systemic problems?
Topic: legalThursday, 18 September 2008Coca Cola water bottling legal case: Commissioner Tim Moore reserves judgement
Monday, 4 August 2008Tactical observations about Coca Cola Amatil water bottling case at Peats Ridge
Topic: legalFriday, 25 July 2008Open letter of complaint to ACCC about Coca Cola Amatil deception on 'spring water' at Peats Ridge
Topic: legalFriday, 18 July 2008Coca Cola water bottling case: Letter to expert evidence "gatekeepers" re science of Sydney sandstone
Topic: legalFriday 18 July 2008 -Is this how Coca Cola pick and choose their expert evidence to destroy Peats Ridge Springs?
Topic: legalTuesday, 15 July 2008Coca Cola Water Bottling Case: Mystery Green Folder found with critical evidence for court expert Lane
Topic: legalSaturday, 5 July 2008Coca Cola water bottling Case, Peats Ridge Springs: Objector gets a chance to be heard
Topic: legalFriday, 4 July 2008Coca Cola water bottling at Peats Ridge Springs Case: Decision today in Land Env Court on party joinder
Topic: legal4 July 2008 -Coca Cola Amatil caught out breaching bulk export condition in trial at Peats Ridge Springs?
Mood: sharpFriday, 27 June 2008Coca Cola water bottling case: Draft short order of minutes for court consideration today
Topic: legalFriday, 27 June 2008Coca Cola water bottling case: Community Objector submissions to Justice Pain today 3 pm
Topic: legalTuesday 24 June 2008 -Does Coca Cola bottled water at Peats Ridge have a chook poo contamination problem in the future?
Mood: not sure
24 June 2008 Coca Cola's nominated, and court appointed expert 'blinks' twice on report deadline?
Friday, 13 June 2008Environmental agitator seeks to join legal action against Coca Cola at Peats Ridge Springs, NSW
Topic: nsw govt
1 June 2008Coca Cola Amatil bottled water legals: Ratepayers force reversal by Gosford Council so far
1 June 2008
Objecter seeks to be heard in Coca Cola bottled water case after driest May on record
21 May 2008Coca Cola in Environment Court on 6 June over Mangrove Mtn bottled water extraction
Saturday, 17 May 2008
Coca Cola Amatil 'not a good corporate citizen': Ian Cohen MP