[Filed and served on 25th July 2008 on Coca Cola Amatil at their Circular Quay office, and 1 for city agents of PJ Donnellan
Solicitors of Gosford City Council.]
IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
No. 10429 of 2005
GOSFORD CITY COUNCIL
OUTLINE OF SUBMISSIONS OF INTERVENOR – NEVILLE DIAMOND
Pursuant to directions by
Justice Pain 4th July 2008
Filed on behalf of the Intervenor Neville Diamond
By his agent Tom McLoughlin,
Ecology Action Sydney ABN 506 347 944 95
Address for service
C/- Tom McLoughlin, Ecology
Action Sydney Email: firstname.lastname@example.org
A. Scope of orders for submissions
1. Pain J in her judgement
4 July 2008 in favour of Diamond’s intervenor status at paragraph 23 states:
“He has two conditions
he wishes to put to the Court which the Council will not. …. I consider
I should make orders to enable him to participate in a confined way as provided for by a “Double Bay Marina” order
under s.38 (2) of the Court Act. That will be limited to providing evidence to support the additional conditions he wishes
to seek and making submissions on these to the Court. “
2. In paragraph 23 Pain J states:
“ Any matters
concerning the deletion of the condition in issue [the trial at 66 ML/YR extraction i.e. the “Trial”] must be
presented [by Intervenor Diamond] through the Council.”
B. Comments by Pain J on Anthony Lane
as choice of single expert
3. Pain J states in
her judgement on intervenor status 4 July 2008 at paragraph 7 states:
substantially delayed notifying the objectors of the appeal as it should have [according to specific resolution of council
12 Feb 2008] until after the first callover in the matter (the Council admits this oversight).”
The General Manager
of GCC asserts this was an “oversight” in writing [Diamond Affidavit p157,
annexure AJ, letter dated 6 May 2008] but the Intervenor does not concede
it was merely an oversight on the part of GCC officer(s) to make way for Anthony Lane as CCA preferred single expert uncontested
given the extensive high controversy and litigation in this matter.
Pain J states and we
concur same paragraph:
in a delayed application for joinder as a party so that Mr Diamond was not able to participate in the selection of the parties’
4. Pain J in her judgement of 4 July 2008 goes on at paragraph 7:
is no intention to seek to have another parties’ single expert selected a Sydney expert
rather than one based in Melbourne would have been preferable.
The impartiality of the expert should also be tested to see if he has done work for Coca Cola Amatil Pty Ltd which is the
company behind the applicant for the development.”
4A. The prima facie
bad faith of GCC (in collusion with CCA) in not notifying the community objectors in a timely way as per council resolution
is further apparent in the short minutes of order signed by both parties’ lawyers dated 17 April 2008, at least 2 weeks
before the community were notified by letter [Diamond Affidavit p20, annexure D, letter
dated 29 April 2008] of these legal proceedings. The order of 17 April 2008 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.”
This was in light of
the known context of a very live scientific disagreement through the years of litigation over this site as to the nature of
the complex multiple semi confined aquifer in Sydney sandstone substrate at Peats Ridge, which cannot be treated as monolithic
or as large a water resource as previously.
C. Vigorous attempts by Intervenor/Agent to balance evidence provided to single expert Lane against
systemic bias to approve increased water extraction
5. Diamond has sought
to progress documentary evidence to single expert Lane regarding the Trial via the First Respondent (“GCC”) according
to the order of Justice Pain to appoint GCC in effect as “gatekeeper” (per J Pain when she delivered her judgement).
6. At the hearing on
27th June 2008 re intervenor status Pain J requested a list of documents Diamond wished to submit to Anthony Lane who was nominated by
Coca Cola Amatil (“CCA”)
- whom the Applicant Kettle represents – as the single expert. GCC also agreed to Lane. This list was submitted by the
Agent for the Intervenor (“Agent”) by the due date 1st of July 2008.
6A. Similarly the Intervenor
has met each other deadline including submission of evidence on 18 July 2008 (“the Evidence”).
7. At the judgement allowing Diamond as Intervenor on 4th July 2008 solicitor Byrd acting for GCC
provided a letter to our Agent listing the following documents Council agreed to provide to Lane based on the Intervenor’s
list filed and served 1st July 2008:
A. Water sharing plan (if released)
C. Alkativ [sic]
and Merrick report
C1. Questions drafted
C3 and C4.
ERM report of Sept 2004 [Evidence pp173-176]
C5. ERM report
of October 2003 [Evidence pp185-197]
Report [Evidence pp 171-172]
J. LEP 381
K1. General Terms
of Approval and Conditions of consent. “
8. In the hearing of
4th July 08 barrister Fraser for GCC sought to reduce the list given to the Agent (also
dated 4 July 2008) after private discussions with CCA’s barrister Eastman. This was despite protests by the Agent to
the effect GCC were strangling the contrary evidence available to Lane. Fraser
then submitted that the reduced list of documents constrained by CCA would go to Lane the following Monday – 7th
9. According to our
notes of the hearing GCC and CCA both agreed inter alia to the Alkhatib/Merrick
Nov 2006 report going to Lane by the next Monday 7 July 2008.
10. On 9th
July 2008 solicitor Byrd for GCC confirmed by email an unspecified bundle was forwarded to Lane in these terms:
which both parties agreed to at Court last Friday have already been forwarded to Mr
11. On 10th
July 2008 the Intervenor wrote to Byrd/GCC referring to various documents about climate change intensification, and record
deficit of rainfall in May 2008 at Mangrove Mountain for consideration for Lane [refer
page 21 Evidence and following 22-28].
12. On 10th
July 2008 in the same email we also asked whether the full 170 page report of the Alkhatib -Merrick
report of November 2006 had been provided to Lane which question has not been
answered directly by GCC’s lawyer to date.
13. There is confusion
whether several documents referred to in paragraph 7 above were in fact supplied
to Lane by GCC’s lawyers. The Intervenor’s Agent wrote to Byrd for GCC on 10th July 2008 asking “Please
let me know specifically the list you have actually forwarded to Mr Lane. “ We have not received any formal clarification from GCC’s lawyers.
14. Late Thursday 10 July 2008 the Agent was notified that the Green Folder with unique documents requested
and used in at least in part by Moore C to justify the Trial was relocated. It was returned to its owner Margaret Pontifix,
Secretary Mangrove Mountain District Community Group Inc (“MMDCG”) by the Court Registry the next day Friday 11th
July 2008. We are advised it was this submission that caused Moore C in 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.' : Commissioner Moore, from the bench in the hearing of David Kettle
Consulting [agent for Coca Cola Amatil] v Gosford City Council and Azzopardi et al 10429 of 2005
15. On Monday 14th July 2008 the Agent requested extra time by email from the other parties to identify
documents for Lane given relocation of the Green Folder of documents misplaced by either GCC solicitor, LEC registry or someone
for 2 and a half years, and another box of documents provided to the Agent as follows:
At this initial stage we can advise the Green Folder materials contains a map endorsed by senior officer of the
Gosford Wyong water authority as to the water supply bores they rely on from Peats Ridge/Plateau. It contains rainfall records
for the district. It contains probative original scientific survey of groundwater dependent ecosystems (flora) by science
teacher Pontifix that have withered and died out over the last 20 years due to lost springs in the district. The folder contains
a topographical map, and aerial photographs from 1980 until 2004 of the subject land and district. We submit these are properly
materials that should go to CAE Lane in the normal
course of case management.
We are also recently in receipt of the box of documents only on Saturday 12th July 2008 referred to as no.s
1-32 by us and Mangrove Mountain District Community Group's Margaret Pontifix in our list of 1July 2008 (submitted before
our status as party/intervenor was resolved and thus an expanded list of documents). Given the court's determination
to focus on the trial condition and constrain documents to that or the two extra conditions proposed by us the extra
time to 21st July will give the intervenor the opportunity to properly filter that box of 32 items (about 18 inches thick).
16. CCA responded by
email the same day [Evidence pages 31, 33-35], copy to Byrd/GCC opposing any delay
in the timetable. Our Agent decided to take two weeks unpaid leave from his day
time job the same day to progress this pro bono case according to the formal timetable.
17. On 15th
July 2008 the Agent provided a web link to Byrd/GCC and solicitor for CCA of the probative ‘Green Folder’ documents
we wanted to refer to Lane:
Tuesday, 15 July 2008
Coca Cola Water Bottling Case: Mystery Green Folder found with critical evidence for court expert Lane
On Wednesday 16 July 2008 Byrd for GCC wrote to insist any slippage in the timetable for identifying documents to Lane must
be by notice of motion to the court thus exposing the Intervenor to the risk of a costs order for both parties’ barristers
and solicitors if the motion failed. We submit this was always the tactical intention of both major parties to run up the
financial exposure of the Intervenor to prevent meaningful participation as per the exclusion from choice of single expert
in the case in breach of council’s express and direct resolution of 12 Feb 2008 (refer our paragraph 4, 4A above).
On 16 July 2008 the Agent wrote to GCC’s Byrd [refer Evidence pages 19 -20]
including these materials:
6th July 2008 Minister for Agriculture, Fisheries and Forestry - Transcript of press conference Subject: Drought Report, Sydney
regarding new CSIRO report indicating extreme drought to increase from 1 in 20 years to 1 in 2years
- 31 May 2008 Weather News - Driest May on record for Sydney - Weatherzone quoting
meteorologist Matt Pearce of the Weatherzone.com.au organisation includes specific mention of Mangrove Mountain.
20. Some guidance
as to documents actually provided to Lane is possible via Mr Lane’s
own report (only available from 23 July 2008 due to Registry staff shortages, via GCC solicitor Byrd by post) at section 3.1
and table 3 which refer to ‘the key documents’. A full list of the document registry is found at Appendix B
21. Lane’s Appendix
B indicates the Alkhatib-Merrick report of Nov 2006 of some 170 pages was only provided to LanePiper on 14 July 2008 not the
7th of July as suggested by Mr Fraser for CC before Pain J on 4 July 08.
22. The Alkhatib Merrick report was thus only received 4 days before the final report was signed off. We understand this
time is quite insufficient to analyse the assumptions and complexity of the report by usual work standards - pers. comm. Adjunct
Professor Brian Marshall to Intervenor Agent 24 July 08.
23. The Lane report
indicates he was not provided as agreed before Justice Pain by GCC lawyers on 4th July 2008, the DWE Available
Water Determination of 1st July 2008 found here (pers. Comm. DWE officer Hemantha DeSilva 24 July 08)
http://www.wma.dnr.nsw.gov.au/wma/DeterminationSearch.jsp?selectedRegister=Determination, nor the Brink Report or the Hydroilex letter (refer our paragraph 7 above).
24. In email correspondence
of 18 July 2008 GCC’s lawyer Byrd wrote to the Agent declining our documents within the Green Folder, or other documents,
be provided to Lane. This includes some documents Mr Fraser for GCC said 4th July 2008 to Pain J would be provided.
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.
D. Evidence probative of need for continuation
25. Contrary to the
spin from GCC’s lawyer at paragraph 24 we say that key documents not addressed by Lane re climate change, future water
resource and healthy aquifer include:
- The analysis of the complex semi confined multiple aquifers of Sydney Sandstone (which
applies equally at Mangrove Mountain and the Blue Mountains) by such as Adjunct Professor Brian Marshall in correspondence
to Mangrove Mountain District Community Group Inc and his brochure Groundwater: lifeblood of the environment, [found at pages 98-123 Evidence]
- CSIRO report released in July 2008 that predicts drought – experienced at a rate previously
1 in every 20 years - would now occur in Australia once every 2 years as a result of climate change, as referred to here 6th
July 2008 Minister for Agriculture, Fisheries and Forestry - Transcript of press conference , Subject: Drought Report, Sydney
- a meteorologist expert report regarding the month of May 2008 being the driest month ever
on record at Mangrove Mountain
and indeed NSW [page 21 in the Evidence]
- The Pontifix 2005 ‘Green Folder’ submission of such interest to Moore C in 2005
- aerial photographs requested by Lane at his 2006 site inspection as desirable,
- NSW Govt map 1980 of the permanent watercourse prior to water bottling operations
- comments of Adjunct Professor Brian Marshall contrary to Dr Merrick’s view of a
monolithic aquifer in Sydney Sandstone at Mangrove Mountain
- study of lost flora on permanent watercourses at Peats Ridge and Mangrove Mountain
- schematic of the Gosford Wyong water supply reliant on Mooney Mooney Creek signed by the local
water authority Headworks Coordinator
- refusal by DWE of increased water extraction for local farmers in 2005 while CCA were granted
We understand it
was in response to these materials that Moore C during the 2005 hearing for the original consent remarked put him on a course
to order the Trial condition(s) in the first place. The Green Folder material is at pages
76 to 123 of the Evidence.
- Conclusions of the Brink report of 1996 generated for former owner Livio Pace of the PRS site
which clearly indicates interaction of bores across the boundary line CCA to Azzopardi property at only 8 ML/YR rate of extraction;
- The DWE new determination regime under the Kulnura Mangrove Mountain Water Sharing Plan issued
in early July 2008 and advertised in local newspapers. Byrd for GCC in the letter of 4th July 2008 agree to provide
Lane with “A. Water sharing plan (if released)”. A new regulatory
determination system was released in early July 2008 but the Lane report of 18 July does not refer to this document. Found
at this link http://www.wma.dnr.nsw.gov.au/wma/DeterminationSearch.jsp?selectedRegister=Determination
As best we can discern
all of these documents have been excluded from consideration in the Lane report. And we understand the Alkhatib-Merrick Report
was not forwarded to Lane on 7th July 2008 as advised would happen to Justice Pain but only on 14 July 2008 being
insufficient according to Lane himself for proper independent analysis.
E. Unreliable report of Lane given reliance on Merrick and Beck
26. Lane in his report
refers to personal consultation with Dr Merrick but fails to consult other lead author Alkhatib. This is too narrow.
27. Merrick in particular
has shown himself to be in the shadow of CCA financial influence by effectively promoting a CCA funded water study into the
Kulnura Mangrove Mountain Water Sharing Plan (“KMMWSP”) area at Peats Ridge, which would be work by him or his
academic group (NCGM) financed by CCA. This is the subtext to the letter Lane adopts written by Merrick
to the open press at Appendix C of the Lane Report [also found at page 42 of the Evidence]. This potential conflict of financial interest has been apparent since the letter of Alex Wagstaff, Director of
Corporate Affairs CCA to Mangrove Mountain District Community Group Inc (“MMDCG”) dated 12 May 2006 (at page 52 Evidence) to quote:
“we are preparing
a community monitoring proposal for the Peats Ridge area under which we would fund the installation and maintenance of equipment
to monitor water extraction levels in the area. We would need the co-operation of water users, which may include some members
of the Mangrove Mountain Districts Community Group, to allow installation of such equipment on their bores.”
28. Compare Wagstaff
language with Merrick’s open letter to the press of 5 May 2007 (“Merrick Letter”) [Evidence p42] [bold added]
“There is a popular misconception that Coca Cola Amatil’s (CCA) water bottling business at Peats Ridge is to
blame for all environmental impacts. This does not stand up to logical scrutiny. First if there is an effect, it will be localised.
Second, the volume of groundwater pumped by CCA is no more than 2 or 3 percent of
all the groundwater pumped from the aquifer. We know how much CCA pumps, but we
do not know the total amount pumped by everyone else because there is a puzzling reluctance to allow meters to be installed on bores. The aquifer will never be able to be
managed properly unless we know how much water is being used, where it is being used, and how the groundwater levels respond
A proposal was put to the community meeting [3rd May 2007]
for a pilot research study that aims to clarify “cause and effect” to the
satisfaction of all stakeholders, through focused metering., monitoring, data analysis, consultation and education. I trust
that the findings of the UTS study might assist the community in their deliberations.”
Dr Noel Merrick,
Director, National Centre for Groundwater Management, University of Technology, Sydney 5 May 2007 to Central Coast Express Advocate
29. The Merrick Letter
is in stark contrast to the more accurate interpretation of his co-authored study in the local press [Evidence pages 43-45 eg Allocations wring mountain dry p6 24 January
2007, at p45 of the Evidence, from Central Coast Express Advocate] based on Merrick’s own findings of significant over allocation,. To quote Merrick’s
co-authored study [bold added]
"Using 10% reduction in
baseflow as an example, it appears that the sustainable yield in the Water Sharing Plan area is about 3,000 ML/year on average,
but it can average from less than 1,000 ML/year in a dry year to more than 5,000 ML/year in a wet year. This compares with the current plan figure of 8,000 ML/year.
For the other catchments
outside the Water Sharing Plan area, the sustainable yield is around 9,000 ML/year on average. With seasonal
variations, the sustainable yield can vary from about 2600 ML/year in a dry to about 11,000 ML/year in a wet year."
30. It is for this very reason of over allocation that DNR (formerly DIPNR, now DWE) write 6 April 2006
to GCC [Evidence pp46-47] to oppose removal of the safety level completely as
sought by CCA, subsequently relaxed 5 metres with Lane as expert in the 2006 Trigger Case.
31. In this regard
we note views of GCC solicitor Donnellan of 6 April 2006 to solicitor for neighbour of CCA [Evidence pp56-57]
The historical data upon which Dr Beck made his initial predictions have now been augmented by the
plummeting of the water table to the 10 metre level out of which these proceedings [2006 Trigger case] arise. It seems to
us that the historical data now tell us that it is possible in circumstances which are not precisely defined but are only
described as “an outside force” that the water table can drop rapidly, at least as measured in the monitoring
bores to that level which was previously considered the point below which access to water by the Azzopardis might not be available,
or at least readily and reasonably available.
3. It is simply unknown what level the water table might ultimately go down to when subject to this
external force, coupled with the extractive operations of Coca Cola. To allow Coca-Cola to continue to extract from its wells
bearing in mind that they go down somewhere in the order of 70 metres, when the outside force is causing the water table to
drop , would lead to unknown consequences for the Azzopardis. These are consequences which , it seems to us, the Court Appointed
Expert [Lane] could simply not predict.
We submit the same lack
of certainty applies equally today regarding the external unknown probably unlicensed water extractions in the Peats Ridge
area such that CCA is already in the over allocation paradigm.
32. Similarly local
knowledge is that the Central Coast
was in its 10th year of below average rainfall in 2006 [Evidence pp48-49,
125-126] and that local quarry use of water is unlicensed [Evidence p124, 132-141]
33. Similarly the local
Catchment Management Authority with coverage of the Mooney Mooney Creek listed [Evidence
pp50-51] under “Threat: Groundwater extraction in headwaters/ Very large scale for Coca Cola Company”
34. We are advised that
Dr Merrick is not a hydrologist by training but rather a computer modelling expert and thus cannot genuinely provide advice
on environmental/aquifer impact beyond his computer modelling expertise. For instance he cannot advise as per his Letter below
on CCA impact on hydrology nor shift 10% to 30% reduction in baseflow with any credibility (as per Lane report below).
35. There is extreme
scepticism amongst the farming community in the Peats Ridge area about the objective science behind the allocation of water
to Coca Cola as per minutes of the public meeting with CCA’s Dr Beck in March 2006 [Evidence
pp58-66, and refer also John Madsen submission to Moore C at pp 127 to 130]
36. The result of the
2006 Trigger case to only allow a safety level increase of 5 metres from 10 to 15 metres rather than unlimited (as sought
by CCA) - after plummeting water table - effectively discredited the advice of ex DIPNR officer Dan McKibbin [letter 9 August 2005 in Evidence p 143] that “existing bores
have negligible connectivity or impact on flows in the surface watercourse at the [PRS] property.”
37. There has been a
disjunct between local knowledge and dominant policy approach taken by government and the court – the latter applying
a simplistic monolithic aquifer approach to justify claims of a huge resource in the complex Sydney sandstone semi confined
multiple aquifer situation. [Evidence p143 to 167] . The local council water authority
with the pressure and responsibility to protect the local water supply have been far more cautious as per their opposition
to the 66 ML/YR increase in extraction to begin with [Refer their submission 12 Feb 2005 at
page 156 of the Evidence]
38. We submit that out
of Dr Merrick’s own words in his Letter he admits there are no figures for
“total amount pumped” at Peats Ridge aquifer and yet in a tendentious a
priori way he claims to know what percentage of that unknown figure is CCA’s fraction of extraction at only “2
or 3 percent”. The problem for Merrick
is that even on his own terms and even at only 2 or 3% for CCA (which is not conceded) it may well be compounding an existing
39. Merrick is obviously
keen to implement further study at Peats Ridge financed by CCA even to the extent of employing CCA’s rhetoric about
community based monitoring programme. This is potentially an abuse of one’s academic position to play the tune of one
commercial stakeholder – CCA - in order to beg for work at the expense of other community and commercial stakeholders
using water to grow food as opposed to the luxury indulgence of bottled water. Quite wisely the MMDCG have stood off the CCA
40. This perception
of Dr Merrick touting for research funding from CCA is understood in the sector. For instance [Evidence pages 40-41 at p41] George Gates, Groundwater Manager DWE dated 1 June 2007 states to MMDCG:
“It is not unusual in these circumstances for individuals or enterprises to get together and
discuss possible solutions to managing local impacts. In this instance it appears to involve localised investigations by Coca
Cola Amatil. I am unable to comment on the utility of such activity until the project objectives and project plan are available. I would however be surprised
if the proposed investigation were to encompass the entire Water Sharing Plan area and issues. Certainly I am unaware of any
approach to government for a collaborative approach to the funding of management of the aquifer that encompasses this Water
Sharing Plan area.”
41. Out of Dr Merrick’s own words in his Letter he admits to quote [bold]:
“but we do not know the total amount pumped by everyone else because there is a puzzling reluctance to allow meters to be installed on bores. The aquifer will
never be able to be managed properly unless we know how much water is being used, where it is being used, and how the
groundwater levels respond to pumping”
This is an eloquent
unintended summary by Merrick of why the Trial should continue not be deleted, and why the
Trial is unresolved or indeterminate at this time.
42. We refer to our
correspondence to Hemantha De Silva of Hunter DWE dated 29 June 2008 raising the question of unlicensed, unmonitored extraction
by quarries in the Peats Ridge, Mangrove Mountain
area, starting at p3 and at p5 of the Evidence and following:
“We [are advised] there are 40 quarries in the Mangrove
Mountain area with uncertain water extraction involved. From experience
we are aware that two sand mines in Maroota - PF Formations and Dixon Sands each extract around 300 ML/YR. If there are 40
quarries extracting anything like that level at Mangrove Mountain we are quite alarmed at the level of unsustainability.
We see this as feeding into and only compounding the concern above about bulk export of water by Coca Cola
into the future as an expanding business like water bottling has expanded.”
DWE have failed to respond
to this enquiry to date. This suggests the DWE officer should be called to give evidence as to the level of unlicensed over
allocation in the PRS area already, and other matters (below).
43. We refer to Community Environment Network discussion paper 20 Sept 2005 at pages 132-141 of Evidence, in particular tables at p137 and 139 and 140 regarding estimates of unlicensed
quarry water usage in the Mangrove Mountain
44. By consulting and
cross referencing Merrick’s Letter, Mr Lane
appears to have similarly tainted his independence from CCA via Merrick.
45. The Merrick
Letter is only received by LanePiper on 18 July 2008 as per Appendix B document register on the same date as Lane’s
report 18 July 2008. This suggests quite a rushed job by LanePiper failing to get across the 170 page report such that Lane
has been forced to adopt co-author Merrick’s open letter as a convenient summary, with all the flaws and compromises
inherent in that letter:
- Unknown fraction of CCA extraction at 66 ML/YR, and:
- great deal more study needed to know “how
the groundwater levels respond to pumping”. We concur with this part of Merrick’s
letter provided the study is independently designed and funded.
In the absence of reliable data, deletion of the Trial would be highly irresponsible.
46. We note that Lane
obtained a Master of Science (Hydrology) from the University of London
in 1981, while David Kettle as agent for CCA has a BA (Hons) Geography, University
of London, as well adviser to the government in British
Columbia. We will seek assurances that Lane and Kettle have an independent professional relationship
in their past working lives. Similarly Lane vis-à-vis Beck.
47. Lane has shown himself
to be potentially compromised by having private discussions with CCA’s Dr Beck in 2006 as per the correspondence by
emails found at pages 54 and 55 of the Evidence. Lawyer Donnellan for GCC calls such private communications “imprudent”.
Mr Lane says he “would find it most helpful
for him [Dr Beck] to explain some aspects of his reports during this journey”. This is suggestive of CCA’s Dr
Beck having excessive access and influence to Lane the independent expert.
48. Mr Lane’s
CV is quite weak regarding analysis of the complex semi confined multiple aquifers of the Sydney Sandstone complex, and much
more related to water contamination issues.
49. It is noteworthy
that Lane’s Report relies on the work of Dr Beck in substantial measure. In his judgement of Sept 2005 Moore C at paragraphs
40- 47 of 29 September 2005 declined to find for Dr Beck over surface versus
spring source of water in the creek at PRS Pty Ltd. Beck’s evidence is directly contradicted by community witness Margaret
Pontifix, science teacher of 40 years and local authority figure as secretary of MMDCG Inc. Rather Moore C side stepped the
controversy. The statements by Dr Merrick above quoted and analysed at paragraphs 28-43 of these submissions just add to the
uncertainty of Dr Beck’s previous evidence and approach.
50. Expert hydro
geologist Adjunct Professor Brian Marshall sternly warn against [at page 102 of the
“The emphasis on the Water Sharing Plan whereby total recharge, less dedicated allocations, leaves
a remainder for exploitation is horrifying in its simplicity. It disregards assumptions made about recharge, groundwater flow-rates
with the ‘aquifer’, the veracity of ‘allocations’, the overriding impact of climate change, and the
need for thorough evaluation of more local issues.”
Marshall points out
that at Mangrove Mountain as in the Blue Mountains Sydney Sandstone contains complex multiple semi confined aquifers that
may be connected vertically and/or horizontally and often with different permeabilities and flow rates and cannot be treated
as monolithic. He agrees with this Agent’s crude description that at Mangrove
Mountain the aquifer is more like Swiss cheese than a bucket or bathtub.
He agrees that drilling deeper may not provide more volume of water depending on the location of narrow underwater streams.
F-1. Need for an express consent condition against export of bulk water tankers
As per our correspondence with DWE [Evidence pages 3-18] we submit the Moore C Trial regime when taken in due context
of all subclauses of clause 1 of the court consent of 2005 implies a ban on bulk export by condition 1D incorporation of cl
1.5 of DWE General Terms of Approval of water licence, as well as by the 11ML/28 days rate limit in consent condition 1A.
We refer to page 1 of the Evidence regarding neighbour Azzopardi observation of bulk water tankers leaving the CCA PRS site
from February to June 2008 averaging about 3-4 a day, five days a week.
53. Moore C decided in September 2005 [bold added]:
57 For reasons discussed with Mr Tomasetti during the hearing, I also consider that there should be a
restriction on the amount of water extracted in a nominated shorter period
– say twenty-eight days – to ensure that there is a degree of regularity in the extraction but with sufficient flexibility that a degree
of variation in demand for product can be accommodated. The condition will,
therefore, be to the following effect:
For the purposes of ensuring that there is no permanent adverse impact on the aquifer, the annual volume of
water extracted from the aquifer is limited to 66 megalitres per annum with no more than 11 megalitres to be
extracted in any twenty-eight day period.
abovementioned annual extraction volume is subject of a twenty-four (24) month trial period. The twenty-four month trial shall
commence from 1 October 2005 until 30 September 2007. An application under Section 96 of the Environmental Planning and Assessment Act 1979 must be made to modify this condition if permanency of
the expanded annual extraction volume and/or alteration to the restriction
on extraction in any twenty-eight day period is sought. Such application
must not be made before 31 March 2007.
.....at David Kettle Consulting v Gosford City Council
& Ors  NSWLEC 519 (29 September 2005)
54. The Court Order of final conditions of Moore
C of 18 November 2005 imposes these conditions [bold added]:
1. For the purposes of ensuring that there is no permanent adverse impact on the aquifer
a trial period is imposed extending to 31 December 2007. .....
A) The annual volume of water extracted from the aquifer is limited to 66 megalitres per annum with no more than
11 megalitres to be extracted in any twenty-eight day period. .....
D) Compliance with the General Terms of Approval (GTA) under the Water Act 1912 issued by DIPNR now the Department of Natural Resources ("DNR") as attached
to the letter dated 28 January 2005 annexed to these conditions and marked "A".
55. Thus in condition 1D Moore C adds another layer of restriction on step change in rate of volume
of extraction affecting the aquifer and the groundwater dependent ecosystems so they may recover. He does
this by cross referencing the court's trial conditions with "compliance with the General Terms of Approval".
This is an obvious measure by Moore C in order to ensure a better metric in the Trial of the effect of water bottling on the
aquifer as distinct from other possible water uses on the PRS site.
the hearing of 27 June 2008 over intervenor status there was debate about the legal authorities regarding extent
of new consent conditions that could properly be considered in a s.96AA application.
58. It was argued by Fraser for GCC that
a narrow approach should be taken with specific nexus to the condition being deleted (eg the Trial). At one point earlier
in the hearing Eastman for CCA declined to follow the line of precedent reasoning of Mr Fraser constraining the subject of
new consent conditions (under his ethical obligations in the bar rules), a submission that was noted and appreciated. Later
Mr Eastman may have shifted toward Mr Fraser’s view.
59. We have consulted the Environmental
Defenders Office and understand these precedent cases are relevant:
Benalup Holdings Pty Limited
v Lismore City Council (1993) 81 LGERA 257
Sydney Council v Michael Standley & Associates (1998) 43 NSWLR 468 ;
Recent Cases Citing Benalup
Captain Cook Cruises Pty
Limited v North Sydney Council  NSWLEC 243
(this case, and those following its
authority, contain the preferable interpretation of s96 of the EP&A Act)
1643 Pittwater Road Pty Ltd
v Pittwater Council  NSWLEC 685
60. The EDO
The question was re-considered in 1643 Pittwater Road Pty Ltd v Pittwater Council
 NSWLEC 685. In that case a development consent was subject to a condition
that two houses on a dual occupancy lot could not be separately disposed of. The
Council granted the modification application subject to imposing another (slightly less restrictive) condition preventing
separate disposition of the houses via a company share arrangement. The Court
found that the condition could be validly imposed. McClelland J, following the
obiter observations in Michael Standley, found that the consent authority did have
the power to modify the consent otherwise than in precisely the terms requested by the applicant for modification.
However, the modifications to be valid had to relate to the “matters raised for consideration by the application”. His honour explained the position as follows at :
“Ultimately the limits of the discretion which may be
exercised by a consent authority will be defined by the matters raised for consideration by the application. Accordingly,
when an application to modify one aspect of a development is lodged, the consent authority must consider the matters under
s 79C(1) relevant to the aspects of the development to which the application relates. Accordingly, if an application is made
to modify the height of a building, consideration of any matter which is either directly or indirectly related to height will
arise for consideration. If an application is made
to change the approved colour of a building, matters relevant to colour must be considered. This could, in an unusual case,
extend to the apparent height or bulk of the building. However, an application to change the colour of a building could not
provide a basis to reconsider the provision of car parking for the development. The matter of car parking simply does not
arise. I do not understand the President to be suggesting otherwise.”
61. We submit whether narrow or broad approach
to the power of the court to open up new consent conditions I preferred, that the case(s) mentioned by Mr Fraser can be distinguished
on the facts of the C Moore Trial regime itself: The Trial condition subclauses 1A-1C under litigation are in context
a package with clause 1D incorporating the GTA.
62. This is not surprising as implementation
of the Trial is not in reality a minor condition but underpins the structure of the whole approval regime of Moore C’s
prescient precautionary approach in the age of climate change, and strongly inter relates with the other subclauses in condition
1 for efficacy.
63. The Trial conditions address both level
and rate of extraction: We submit Moore C was mindful that a bottled water plant has inherent limits to volume and rate
of extraction both relating to staffing, hours in the day, and machinery limitations to process the water,
all with consequences for impact on the aquifer. Such inherent limitations are part of the regime to protect the aquifer by
limiting extraction to bottling (onsite).
64. By contrast bulk water tankers due
to their much higher capacity for extraction (eg to supply a brewery or other industrial uses or even bottling offsite), especially
if they become an established business, will inevitably reach and put pressure on the trigger level and the aquifer much sooner
creating more pressure for extraction above even 66ML/YR. This was never the intention of the Moore C consent and a ban on
bulk export was in effect part of the Trial context to get clean data about that in terms of volume and rate.
65. Thus clause 1D implies ban on bulk
export of water (via incorporation of the GTA clause 1.5) seeks to prevent the far more accelerated form of water extraction
by bulk water tanker. Clause 1.5 reads:
"1.5 Water shall not
be pumped from the bore authorised by the licence for any purpose other than water supply for mineral bottling
This would preclude bulk water tankers which is not "supply for mineral bottling purposes".
66. Moore C applies 3 methods to get a
probative Trial in order to test the socio economic environmental effect of water bottling
on the aquifer. One is to limit overall volume at 66 ML/YR. Second is to limit gross rate of extraction at 28 ML/YR. The
third is to limit extraction of water only for the purposes of bottling which was the purpose of the DA which has another
in built volumetric/rate limitation built into it due to capacity constraints of bottling machine, staffing levels, etc which
thus addresses the same concern about a bulk water supply business being established at the development site, as distinct
from water bottling.
67. We submit Moore C intended to address concerns over a step change in extraction rates above 11 ML in 28
days time as an adverse impact on the aquifer. But he is not willing to oppose intensive bottling up to 11 ML in
68. We also note that the CCA website as of 4/6/08 similarly suggests no bulk exporting from Peats Ridge
as it is [bold added]
"Peats Ridge Springs, Peats Ridge (water bottling only)"
[copy of website printout at p36 and at 39 of the Evidence]
69. We submit a new express consent condition on the Applicant/CCA should read to the effect of
Condition: Water shall not be pumped for bulk tanker export off the site. No bulk water export supply
business is to be established at this site.
70. In particular we see a 'new' express ban on bulk water in the development consent conditions
merely clarifying the conditions already in the C Moore trial conditions. The fact is bulk tanker supply is potentially a
distinctly higher intensity use putting the aquifer at higher risk of sudden step change unconstrained by manpower or plant
limitations for the bottled water operation.
71. As per the Brink Report 1996 [evidence pp171-2] proving interaction
between bores across the CCA/Azzopardi the interference was at 8ML/yr, 5days a week, 10 hours a day, while
CCA proposal today is at 66ML/yr, 6 days a week, and 24 hours a day. The interaction can only expect to be greater across
the boundary line and any intensification of volume or rate from to service a sunrise industry in bulk water export will have
an affect on their aquifer.
Need for an express condition for rehabilitation of the un named water course on the site of Peats Ridge Springs Pty Ltd
72. We submit
an extra condition of consent should be imposed on the Applicant/CCA for rehabilitation of the un-named water way on the CCA
73. We rely for authority
in the advice of the EDO regarding new consent conditions under s.96 or similar in the Environmental
Planning and Assessment Act above at paragraph 24C as follows: Groundwater
dependent flora and fauna are another (natural) indicator of whether a Trial is successful or not as regards impact on the
local aquifer. Evidence from Margaret Pontifix to Moore C in Sept 2005 as per the ‘Green Folder’ materials [Evidence at p83, and more generally pp76-103] show that up until the 1980ies permanent
umbrella ferns were present on the site.
74. The rehabilitation
should be at the direction of DWE and appropriate expert consultants and prior advice such as outlined in the letter of Land
and Water Conservation 20 December 1999 to Livio Pace [Evidence p168] and 20 Feb
1996 [Evidence p170].
F-3 Intensification of extraction to increase threat of contamination sources to bottled water
75. We submit that higher
intensity extraction to 66 ML/YR will increase the risk of contamination of the bottled water product from normal agricultural
operations across the site boundary as a result of greater interactions toward the point of extraction.
76. Chicken farming as a business sector has intensified in parallel with
the increased retail business of the bottled water industry. This doesn’t seem to be a very sensible combination for
managing the risk to public health.
77. We refer to
4 of NSW Agriculture letter of 4 December 2003 [Evidence p161];
"It is normal agricultural practice to use fertilisers containing nitrogen, any excess
nitrogen not taken up by plants could leach into groundwater. Nitrates and nitrites in drinking water can be a health risk.
Referral to the Central Coast
Public Health Unit may be necessary."
(b) consequences of
mass poultry carcass burials from Newcastle disease in report
of NSW Agriculture 7 August 2003 [Evidence pp163-165];
(c) concerns of
John Williams, Regional Hydrologist in letter dated 15 March 2000 at bullet points 1 and 3 and paragraph following [Evidence p166];
(d) ERM consultants to CCA/Peats Ridge Springs dated Sept 2004 [Evidence pp173-176] at page 11:
If nitrate concentrations in on-site wells continue to increase despite this strategy, more significant measures
would be considered in consultation with DIPNR, which may include (but not limited to):
· Installation of additional production wells farther from the Azzopardi property boundary, which appears
to be a significant source of elevated nitrate in groundwater; and
· A decrease in the rate of groundwater abstraction to halt the advance of nitrate-impacted groundwater on site.
to address increasing groundwater contamination from offsite sources may be considered as required, and would involve consultation
between PRS [CCA] and DIPRNR”
[And at p15]
“It should be noted that the commercial success of PRS [CCA] business is strongly dependent on compliance with
the relevant water quality standards (ANZF, 1987), such that minimising the on-site encroachment of nitrate-impacted groundwater
is a common objective of both PRS [CCA] and DIPNR.”
(e) Similarly in the ERM report dated October 2003 at para 3.1.2 of that document [Evidence pp185-189 at p187]:
- “The ANZFA 1987 Food Standards Code – Standard
08 – Mineral Water criteria were not exceeded in any well on any sampling occasion;
- Nitrogen (as nitrate plus nitrite and total N) mean concentrations
are higher in wells MB5, MB10 and MB11, positioned along the boundary with the Azzopardi poultry farm, compared to wells MB2
and MB7. This indicates that the poultry farm activities, particularly with respect to disposal of manure, may be impacting
groundwater beneath the site. However, nitrogen concentrations do not appear to be increasing with time, indicating
that the groundwater system at the site is in steady-state (refer Annex A) [not included here]. Note though, that there is a trend evident in MB2, in which both the
NOx and TN concentrations increase and then decrease. In the context of fractured groundwater system, this indicates either
a one-off nitrogen pulse moving through the system or an intermittent nitrogen source, and
flow at the site is to the southwest and south-southwest with an average hydraulic gradient of 0.03 to 0.04.”
G. Unsafe conclusion by Lane for permanent extraction at 66ML/YR rate
78. We offer the following
preliminary comments on the Lane report obtained 23rd July 2008:
1.2 CAE Brief
Comment: The brief fails to address whether the Trial has been implemented. Further it fails to ask whether the
Trial was (a) successful (b) a failure (c) inconclusive (d) whether it should continue.
4.2 Hydraulic Behaviour of Aquifers - Local interference occurs when drawdown due
to pumping a bore extends off site to affect other bores.
Comment: Refer Lane to Brink 1996 Report, refers to interference between Pace bores and Azzopardi. The interference was at
8ML/yr, 5days a week, 10 hours a day, while CCA proposal today is at 66ML/yr, 6 days a week, and 24 hours a day. Brink
Report was excluded from evidence by CCA and GCC.
5.1.1 Geographic Setting - The site is located in a minor valley of an ephemeral stream
which flows into the Mooney Mooney Creek.
the meaning in the Oxford dictionary for ephemeral is
: lasting only a short time, compared to “intermittent : occurring at intervals, not continuous”.
Refer to the LEC
Judgment of the RFIAct case for the definition of river, its on Page 15, number 60, under The Relevant Statutory Provisions, ephemeral is not in the definition, but intermittent is.
The Permit issued
under the Rivers and Foreshores Improvement Act to Pace to excavate , the letter to then owner Pace in 1996 from the
State Govt Dept DLWC [at page 170 of the Evidence by Wayne Conners] regarding
“illegal” rubbish and excavation and RFI Act and the definition of River should be noted as evidence the creek
is not ephemeral.
CCA has been referring
to the creek as ephemeral in a self serving way. Council refers to it as a creek or river under the legislation.
5.1.2 Geology & Aquifers Lane say that ERM reports that regionally the sandstone dips to the
south west [not true] , Lane reports that a more easterly dip in the bedding is likely.
Lane is correct.
Ground Water Quality it states: Ground water on the western side of the creek is very different quality and chemistry to that on the
eastern boundary of the site.
Comment: Lane above said "on the western side of the creek”, yet in 5.1.1, he calls it ephemeral"
which is inconsistent.
5. 4 NCGM MODELING REPORT - The key conclusions in the Alkhatib-Merrick Report are at page
168 and summarised here. While the model was designed for regional areas ,it can be modified to assess specific problems
such as water bottling.
#1: As all farmers say, water bottlers extraction of water is continuous, [see above for hours of operation]
, farmers extract water according to use, depending on weather, age of crops/chicken, surface water, which gives the
bores time to replenish themselves.
Comment# 2 We do not concede that the model
designed for regional areas can be modified to assess problems such as water bottling at a local level.
Comment#3: It is not conceded that higher than 10% reduction in baseflow is acceptable to the community or the
environment or the State Govt or the Court in the shoes of the council. A precautionary approach would treat the sustainable
yield as 38% of that under the Water Sharing Plan namely as low as 800ML/YR in dry years. Discussion suggesting otherwise
with Dr Merrick is potentially tainted by his financial conflict of interest to have CCA fund his further studies.
We understand Dr Merrick is not a hydrologist by training but rather a computer modelling expert and thus
cannot genuinely provide advice on environmental/aquifer impact beyond his computer modelling expertise. For Lane to accept
Merrick on face value about this is not scientifically valid.
extractions and unlicensed water use by numerous quarries on Mangrove
Mountain or other users suggest extreme caution in case any increased
extraction compounds an already over allocated system.
Comment #4 Lane is right to say that "the applicability of this model for local issues like PRS is
questionable" and contradicts the Merrick reliance on the model in fractured rock aquifers.
Comment #5 Lane admits he has not had enough time being 3 or 4 days to absorb the detail of the Merrick Report,
which was supposed to be provided to him on 7 July 2008
6.1 MONITORING DATA - 7th paragraph, "I note that the actual total instantaneous extraction
rate would have been higher than the rate calculated in this way as pumping is usually over 5 days in a week, not 7 days.
Comment: CCA should have advised Lane of the working hours.
6.3.1 WATER LEVEL DECLINE Page 14. - In
terms of potential interference drawdown effect off site, the data shows the greatest drawdown in a south easterly direction.
The significance of this will depend on the existence of any off site bores in this direction. I have no information on bores
in the south east.
Regarding the neighbouring Azzopardi bores Lane should
recall that there are bores close to the boundary western boundary with CCA/PRS Pty Ltd. Lane
was informed in the 2006 Trigger Case about these bores at his site inspection,
and he had wanted to come and inspect them. The Brink Report [first two pages in Evidence pages 171 and 172] although from 1996 is very useful in clarifying this interaction of
bores across the common boundary even at only 8ML/YR at that time.
Comment #2: This text from Lane should be quoted: