Mood: sharp
Topic: local news
(a) prohibiting bulk tanker exports of water and(b) rehabilitation of the natural waterway.
(a) council lawyers of additional evidence available to them;(b) local community stakeholders concerned about the issue;(c) other non govt groups concerned about sustainable food production close to Sydney.
1.Council's report of 5 Feb 2008 doesn't address a suggestive letter by DWE officer De Silva dated 10 Dec 2007 to the GM of GCC that CCA has not been carried out to the 66ML/YR level as required by Moore C in 2005. This letter is attached to the David Kettle/CCA Reply to Statement of Facts and Contentions filed in the court pleadings dated 23 May 2008.DWE/De Silva writes [bold added]:"The report [by CCA consultant] states that a volume of forty four (44) megalitres of groundwater was extracted during the trial period though the Land and Environment Court's Determination allow the licence holder to extract up to 66 Megalitres a year during two year trial period."2. Despite this tip off from DWE/De Silva at point 1, Council officers' report 5 Feb 08 failed to address whether the 44 ML rate of pumping legally complied the trial term. Yet the Council was squarely on notice of non compliance with the consent condition;3. Council's main report 5 Feb 2008 (reversed 7 days later) has another serious omission - it does not cross refer or indicate consultation with the chief hydro-geologist for Gosford Wyong Water Authority. By contrast the local water authority is quoted extensively in the Council report dated 14 April 2005 around page 9 considering the original application for 66 ML/YR which was refused by Councillors. The Water Authority advice was adverse to CCA in 2005 and likely to be so again in 2008;4. A reasonable observer would be surprised that council's officers reversed their recommendation in another report after only 7 days to recommend refusal for non compliance with the trial.5. In that refusal of 12 Feb 2008, an express resolution reads:D. The objectors be advised if the applicant appeals to the Land and Environment Court.This was not done. The GM - Peter Wilson - writes to Diamond dated 6 May 2008 that this was "an oversight". The problem with this generous interpretation is that the lawyers for CCA and GCC were sufficiently alert to the potential of a third party objector joining the proceedings (as happened in litigation in previous years) to file jointly signed "Short Minutes of Order" drafted by Donnellan & Co filed in the court on 17 April 2008 agreeing to the CCA preferred single parties expert (Anthony Lane from Melbourne by clause 3), and seeking to exclude any other expert opinion from say an objector 3rd party in the future. For instance clause 8 of the Order co-signed by lawyers for both parties reads:"If the Court has ordered that a parties' single expert address any issue, no expert report addressing the same issue other than the report of the parties' single expert may be relied upon at the hearing, without leave."In other words the lawyers were careful to shut the gate on third party objectors by first not notifying them, then ramming their own preferred expert in place. It was well understood local objectors did not have confidence in expert Anthony Lane based in Melbourne, having travelled with and relied on CCA's Dr Beck for analysis in 2006 litigation. He wasn't trusted. Objectors wanted a hydro geologist expert based in NSW with experience of the complexity of Sydney Sandstone aquifers. Pain J echoes the same concern by her judgement of 4 July 2008 that"a Sydney expert rather than one based in Melbourne would have been preferable" (at page 2 of the decision).This context and extensive litigation history including local feeling against Lane suggests that council officers avoided notifying objectors to lock in the CCA preferred expert before the choice could be contested by any local objector third party in the litigation. If this was a deliberate breach of the council resolution and/or aid to CCA then it would be a breach of council's code of conduct and potentially ICAC guidelines.5A. The "Agreed brief" to the single parties' expert Lane is very narrow (described in Lane's 18/7/08 report at page 2) and very tendentious of an approval to CCA:To assess whether the hydrogeological monitoring data supplied since March 2006 provides sufficient evidence to make the 66ML licence permanent including determining whether the impact of removing 66ML can be extrapolated from the supplied data, and whether the data supports such the [sic] permanent increase."The brief should have included in line with Council's refusal decision more about:Is the missing summer 2005-06 data for that high use dry period a problem for CCA? Has the trial actually been implemented at 66ML/YR level as per the terms of Moore C. 2005 decision given DWE say it hasn't? Is the trial indeterminate in light of fast changing climate change evidence and the precautionary principle? What does the local water authority advise with their local hydro geological expertise? Has the Peats Ridge area already been seriously over allocated due to other extensive unlicensed water users? Is there any study available of rainfall recharge rate to base a measure of sustainable water extraction? [no] Are there Sydney Sandstone expert hydro geologists like Adjunct Professor Brian Marshall or Chris Jewell based in Sydney who have alternative theories of narrow semi confined aquifers of much less available volume?6. The legal officer Alan Ford is responsible for instructing council's solicitor Robert Byrd of Donnellan & Co (as confirmed by Mr Byrd at the LEC on two different ocassions 4th and 29th July 2008 to Diamond pers. comm.). The problem here is that GCC it's own external auditor's report by consultant Alan Delaney of Internal Audit Bureau. We are advised by sources within Council that this IAB report addressing all issues around GCC management of the Pace/Coca Cola Amatil Peats Ridge Springs site over the years may/may not be adverse to Ford. If IAB is adverse and this is known to Ford/and (or others in GCC), they would be obliged under Council's Code of Conduct to disqualify the relevant officers including themselves from giving instructions in this matter. The fact council keeps the IAB report under wraps has crueled the community's confidence in the situation.7. Council's lawyers - in what appears direct contradiction of the decision of Councillors to refuse the CCAs.96AA application - vigorously opposed the community based Intervenor Diamond at every turn in our notice of motion first to the Registrar and then before Justice Pain. They similarly argued against our suggested new conditions being applied to CCA about ban of bulk tankers or rehabilitation of the water way. We are left to ask the GM on whose instructions and on what basis was this opposition against a third party objector? Why did GCC's lawyers echo CCA's opposition? We believe this aggressive opposition to us given we were moving with the goodwill of community objectors has greatly damaged the trust of the community stakeholders. This greatly under cuts the Councillors sincere solidarity with objectors. Why is there such a disjunction from the elected representatives to the staff implementation? This bares much more scrutiny.8. There has been some serious omission of documents for consideration by the single party expert Lane. For instance(a) there was no intention to provide perhaps the most comprehensive report to date being the Alkhatib-Merrick (UTS) Report of Nov 2006 until we submitted this in our list to the court and other parties. The report features significantly in the Lane report;(b) A CSIRO study of drought frequency increasing from 1 in 20 to 1 in every 2 years released in early July 2008 was ignored. We do not have the CSIRO research report but with Council's help it could have been obtained for this case as to the precautionary principle: More here 6 July 2008 Climate change fuelling drought - CSIRO | NEWS.com.au(c) Similarly a meteorologist report of May 2008 verifying this was the driest month ever on record was also rejected. As here: 31 May 2008 Weather News - Driest May on record for Sydney - Weatherzone(d) Similarly expert advice of retired adjunct professor in hydro geology Dr Brian Marshall was rejected. Marshall in particular has a compelling explanation of why complex semi confined narrow multiple aquifers in Sydney Sandstone are much more constrained in volume than has been acknowledged to date by CCA or its preferred experts (or indeed others on Mangrove Mountain).This willful blindness evidenced by the letter of Byrd/GCC to Intervenor of 18 July 2008 rejecting these materials was very puzzling and suggests a biased attitude; To quote Mr Byrd as GCC's lawyer:We refer to the documents submitted to us by email and web link on 15 July 2008. We advise that our instructions from Council are that whilst Council considered the documents would not be of great relevance or assistance to the parties’ single expert, that Council would not oppose these documents being submitted. As you are aware, however, Mr Lane is a joint expert whose costs are being met by both parties and we, therefore, must also have the consent of Coca Cola to the provision of the documents.
We are advised by Coca Cola that due to the lack of relevance and the additional time factor that the submission of these documents will involve, that they oppose the provision of them to Mr Lane. We will, therefore, not be submitting the documents to Mr Lane for his consideration.
We note that we have also received a number of links to other documents since that date. A number of these documents were links to newspaper articles. It is our view that newspaper articles are not of a sufficient quality of document to submit to the expert. Such articles are second hand accounts of matters and include interpretation by the journalist and we are, therefore, of the opinion that it is not appropriate for these to be forwarded.
In relation to the further documents submitted today, we are again of the opinion that the documents are not directly relevant to the parties’ single expert’s role in these proceedings. Some of the documents contain general information and information regarding the aquifer system in the Blue Mountains. It must always be remembered that Mr Lane is a highly qualified expert in his field and it should, therefore, be assumed that he has an awareness of the general issues and the background in his area. There is also, of course, an issue of time in relation to these documents.
9. Of special concern was rejection of evidence in 'the Green Folder' of documentation which had gone missing for 2 years after being in the hands of Donnellan & Co in late 2005 (wrongly provided to them by the court Registry). We relocated the folder after complaint to the Judicial Commission of NSW. Council's lawyers declined to provide any material in this folder including scientific study by Margaret Pontifix of lost groundwater dependent flora, and several colour aerial photos over the last 20 years which Lane himself had requested in the 2006 litigation/site inspection. Strange given that we are advised that it was this folder that caused Moore C in the hearing of Sept 2005 to remark from the bench to the effect of:'Your community evidence makes me concerned/hesitant to approve this without a trial. I'll have to think about this some more'Further we are advised that Moore C took possession of the Green Folder from Pontifix giving her evidence in the court. Further we are advised that barrister for Coca Cola Amatil - Mr Tomasetti was most concerned about the folder of evidence. It was then returned after judgement late 2005 by mistake with other exhibits to Donnellan & Co and then went missing in the court archive for 2 years. It was always clear who owned the folder from it's contents, and it should have been returned to Pontifix back in late 2005, early 2006.10. Solicitor Byrd has advised Diamond in the precincts of the Court he has no intention of calling any representative of the DWE to explain how they assessed CCA should have a permanent 66 ML/YR extraction when it is clear that the whole Mangrove Mountain is over allocated and no other land holder has been given an increase comparable despite applications since 2005. Even Moore C said in the pivotal 2005 hearing the relevant State Dept should be called;11. Solicitor Byrd has always been agnostic and deferred to Coca Cola in failing to support extra time to comply with the very demanding court timetable on the Intervenor in order to collate our evidence and submissions while holding down a full time job elsewhere. At one point the Green Folder was discovered and another box of documents 2 feet thick had to be processed in 7 days. This was oppressive and the Intervenor's agent lost 2 weeks paid employment to undertake the task. The truth is we were never meant to get across the material or influence proceedings and were being treated like Banquo's ghost through the whole proceedings. So much for the people's court, or the public interest under s.38 of the Land & Environment Court Act.12. We understand that draft conditions by consent wtih Coca Cola have already been drawn up by GCC lawyers, though these are not on the court file as yet. We are advised these have been provided by solicitor Robert Byrd to local objector Peter Campbell (6 August 2008) and that these draft conditions capitulate to CCA pre emptively by accepting an approval by the court in favour of CCA prior to the hearing;13. In the court on Friday 4 July 2008 barrister for Council Matthew Fraser undertook to supply the 170 page expert report by Alkhatib and Merrick of Nov 2006 by the following Monday 7 July 2008 to the expert Lane to consider. The 'Merrick Report' was known to be adverse to CCA's case in that it finds an over allocation of water at Mangrove Mountain generally suggestiing a permanent 66ML/YR extraction was unwise (as per local press early 2006). Lane was due to report by 21 July 2008 so haste was in order to receive such a substantial report. Yet Lane admits (at page 11 "Although I have not had time to review the report in detail (it was received on 14 July 2008) ...." in his 18 July 08 with 4 only days to analyse it. Adjunct Professor Marshall has indicated to us a proper consideration would take much longer than 4 days. Lane effectively admits in his final report he didn't have enough time to properly study it.Lane had twice postponed his availability to do this expert report. On the third deadline in this rush Lane admits (at page 5 of his report under heading "3.3 CONSULTATION") that he discussed interpretation of the report with one of two authors, Merrick, directly verbally before signing off on his report on 18 July 2008, even though Merrick is not a hydro geologist at all:"I have consulted with Dr Noel Merrick of UTS , co-author of the report "Groundwater Simulation and Optimisation Modelling of the Kulnura-Mangrove Mountain Aquifer Systems" November 2006, in relation to interpretation of sustainable resource in the area. The report seemed to infer the sustainable resource had been over estimated by the Kulnura Mangrove Mountain Water Sharing Plan (KMM-SWP".Merrick according to Lane sought to retreat from the findings of his Nov 2006 report and Lane adopts a 30% stream baseflow reduction of local waterways instead of 10% as per the UTS study of Nov 2006. Lane has thus effectively compromised the independence of his report because he may not have known- that since the Nov 2006 Report Dr Merrick has proposed a joint project to be financed by CCA to carry out studies in Peats Ridge area (Yvonne McKay/Coca Cola email letter to Margaret Pontifix/MMDCG dated 1 May 2007 - see attached): A clear potential financial conflict of interest on Merrick, and not an independent source of advice for Lane.- that Merrick is not a hydrologist by training but a computer modeller only who cannot advise on the critical question of increased baseflow extraction from 10% to 30% that Lane relies on Merrick for. There is no environmental assessment of a 30% reduction in stream baseflow, which is huge reduction.14. Currently both GCC's lawyer and CCA both oppose the Intervenor having copy access (as distinct from read access which we have) to the court file in order to properly prepare for the court hearing. CCA might be expected to be hostile. But why GCC's lawyer?15. Most recently Robert Byrd as lawyer for GCC has advised the wrong dates in writing of the site inspection and hearing dates to the numerous objectors. This could well have the effect of dampening the attendance and therefore evidence of public interest and concern in this case if not promptly corrected. We have written to Mr Byrd to request such a correction and re-issue of the letter on 5 August 2008 (as per Attachment 1 below)
1. remove any staff member who is compromised from any involvement or participation in progressing this litigation or similar in the future, and especially excluded from any role in giving instructions to Council's lawyers;2. Council direct it's lawyers to consider the content of the Outline of Submissions on behalf of the Intervenor Diamond otherwise outside the scope of the ruling of Pain J - that can help Gosford CC actually win the case. We refer especially the perceived financial conflict of interest of Dr Merrick, a computer modeller, on whom parties single expert Lane relies ;3. Council instruct it's lawyers, especially barrister Fraser to vigorously cross examine expert Lane on his bogus and/or rushed assumptions and reliance on verbal advice of Merrick with his potential financial conflict of interest;4. Refer this correspondence to the external auditor IAB for a follow up report;5. Council's lawyers be instructed to withdraw any draft approval conditions by consent until the case is actually contested;6. Release the secretive IAB report commissioned by Gosford City Council already completed so that it's contents can be considered by the electors of Gosford according to normal democratic principles;