Mood:  sharp

Picture: Why isn't the creek flowing? Stakeholder inspection downstream of sand mine 14 March 2007 with hydrologist expert retained by Hawkesbury City Council sixth from left. Taken by SAM editor.

Picture: Upstream at the quarry which is located right on the headwaters of Tinda Creek. Sand dredge using cutter suction pump in closed loop operation. Picture taken 14 March 2007 by SAM editor.

Last week 18th August, Commissioner Brown of the NSW Land & Environment Court took 3 hours to consider his position and deliver a judgement at 3 pm. This followed a day and half of hearing including a half day inspection of the quarry originally approved retrospectively in 1996, having operated mostly illegally since 1984.

This writer was pro bono legal agent for two brave objectors William Sneddon and Neville Diamond two environmentalists with a long experience in the Hawkesbury region. Other neighbours are too nervous to go public with their objections against sandminer Birdon Contracting Pty Ltd owned by managing director Tom Bruce. Mine manager is Ray Bygraves. Their consultant is Peter Jamieson, an engineer and director of Umwelt Consulting. He is pictured above on crutches.

Lawyers for Birdon are Russel Byrnes based at Surrey Hills in Sydney with his own interests in sandmining and related by marriage to the Bruce family, and John Webster veteran barrister of Martin Place Chambers in the Reserve Bank building. Webster charges up to $6,000 per day. More of these characters below.

So what was the misleading evidence we refer to in the headline? First we should outline the offence under clause 283 of the Environmental Planning and Assessment Regulation 2000 as follows:

ENVIRONMENTAL PLANNING AND ASSESSMENT REGULATION 2000 - REG 283

False or misleading statements - 283 False or misleading statements

"A person is guilty of an offence if the person makes any statement, knowing it to be false or misleading in an important respect, in or in connection with any document lodged with the Director-General or a consent authority or certifying authority for the purposes of the Act or this Regulation. "

The Act referred to is the Environmental Planning & Assessment Act 1979. This story is about how such deceptive evidence has allowed a ruthless sandmining operation to destroy up to 2 km of Tinda Creek on private land inholding to the Blue Mountains World Heritage area, along Putty/Singleton Rd at the locality of Mellong.

Picture: Out of date image of the Birdon sandmine at Mellong/Tinda Creek area taken from current google earth. Estimated to be around 2001 or 2002 . To the left of here is Wollemi National Park and to the right is Yengo NP, both within the Blue Mtns World Heritage Area.

The current sandmine in 2007-9 has been way beyond it's 1996 approval. Hawkesbury Council finally responded to complaints about water loss due to evaporation in this dry hot location in the Blue Mountains by retaining expert hydrologist Chris Jewell in March 2007 who reported in July that year. Jewell advised that although the Creek was probably unaffected currently with 37% water loss immediately below the quarry, if it went ahead with final water body of 22 ha it would lose 53% of water flow.

Picture: Image from Council file obtained by flyover May 2005, with the sandmine growing outside it's approved boundary.

Similarly NSW Dept of Environment and Climate Change were concerned and wrote in 2007 to Council in response to a development application to expand the mine and change its boundaries to 125,000 tonnes per year to 2021. They wrote:

" As part of a remediation action plan to minimise evapotranspiration form open water DECC recommends that open water areas be reduced as much as possible".

This clause has even now been added into draft consent conditions in 2009 - so there has been some symbolic progress here. But given 13 years of non compliance on other critical consent conditions like groundwater monitoring bores and data loggers there is a serious credibility gap with this developer.

Hydrologist Jewell wrote that (contrary to sandmine claims) they are using 98 ML of water per year while licensed for only 55 ML. This is said to be mainly due to evaporation from those big tailing dams. This gels with a NSW Dept of Land & Water Conservation officer memo in 2003 suggesting 130 ML of water use per year. These are serious breaches of the water license to Birdon at the expense of Tinda Ck.

Now in evidence to Land & Environment Court last Tuesday 18th August 2009 engineer consultant for the sandminer, Peter Jamieson, has handed up a diagram as evidence showing just how big the sandmine has grown, 318 metres at the 140 m approved northern boundary, and 503 metres at the 400 metre southern boundary.

However he did this in a very deceptive way - in our humble opinion. SAM has obtained a copy of the diagram which is discussed in this email to green group and government stakeholder interests:

From: Ecology Action

To: Jeff Smith director Environmental Defenders Office, Kirsty Ruddock principal solicitor EDO

Cc: Scott Hickie researcher to Greens MP Ian Cohen; Jackie Verzi Hawkesbury Council Watch; Tara Cameron President Blue Mtns Conservation Society; Andrew Cox National Parks Association; Peter Cooper The Wilderness Society; Gordon Plath manager litigation DECC; Carmel Tebbutt MP env minister, deputy premier; pro bono barrister Nick Eastman; Ben Cubby SMH ; Stateline NSW ABC ; Simon Benson News Ltd Daily Telegraph

Sent: Wednesday, August 26, 2009 4:52 PM

Subject: Tinda Ck fallout: 'expert' Peter Jamieson, director of Umwelt exposed re deceptive evidence/offence, in 11133 of 2008?

Dear EDO

Re Decision of C'er Brown in Birdon v Hawkesbury CC 11133 of 2008 (Tinda Creek, inholding to Blue Mtns World Heritage Area).

We have the deceptive document now via council's lawyer, being a plan diagram handed up to the court and listed as exhibit "F". It's copied below with compare and contrast real approved plans.

I wrote last week suggesting I could smell some blood regarding the non compliances of this sandmine inholding to the Blue Mts WHA, and maybe we have some here, in three parts A, B, and C. And a fourth D still evolving.

The objectors would be very interested in EDO advice for the objectors on how to progress a formal complaint about breach of clause 283 re misleading evidence by expert Jamieson at Part A here:

Part A: Jamieson/Umwelt misleading and deceptive evidence under clause 283?

The General Manager of Hawkesbury City Council (GM) released the critical diagram provided in court, and also the water modelling (we will ask DECC to examine this latter evidence by comparing it with hydrologist Jewell report 2007 and DLWC analysis Conners 2003). We believe the GM for HCC doesn't want to be compromised by the deceptive evidence to Commissioner Brown and may have instructed council's solicitor Stephen Griffiths to release the evidence pronto.

Griffiths as council lawyer spoke to our objector Diamond on Monday and said words to the effect of "Your issue is with the Attorney General and Umwelt" which we interpret to mean, say a complaint about contempt of court by Jamieson.

Apparently Diamond said to him to the effect of

"... and what about clause 283 [of the EP&A Regulation 2000]. That's a criminal offence."

Solicitor Griffiths apparently paused, but didn't contradict him either.

So what does the Jamieson/Umwelt diagram show? Well it's quite clear in context the deception being promoted:

The diagram shows an ostensible "Area Outside Extraction Area on Fig 7.4 of EIS  = 0.43 ha". That is a trivial exceedance.

This was an attempted rebuttal to our objector submission under s.79C of the Act the day before at the site inspection - namely the mine is 40% out of area. This non compliance (as well as others) operates on cl 36, Part 2 Schedule 3 of the Regulation re non compliance a factor in a DA falling into designated development and needing a new EIS. That is, a refusal decision.

Jamieson was cunning in his verbal language in the witness box (but not cunning enough) responding to C'er Brown 'what does it show?': Jamieson said words to the effect of "this shows what is there now". In particular bright blue hatching showing a trivial "0.43 ha" exceedance.

So here is the hammer blow: The actual DA approved plans from 1996 have nothing to do with Fig 7.4 of the EIS offered up by Jamieson to the C'er complete with bright blue hatching showing "Area outside". When you compare the real 1996 approved plan held by all the parties, the miner is close to 40% out of area. See our mock up copy below with their same style of blue hatching soon to show what the real diagram should have shown: 40% out of approved area.

Umwelt has surely misled C'er Brown who decided specifically on the clause 36 matter words to the effect that 'not sufficient non compliance to justify refusal'. Maybe he would have decided the same even with 40% exceedance, or maybe not. But Umwelt/Jamieson weren't willing to take that risk with a truthful diagram rebutting our objector submission. Nor did HCC pursue this huge exceedance and non compliance.

Here in order are:

1. the colour version of the court exhibit "F" by Jamieson/Umwelt based on an expedient misleading EIS diagram, one of many and not the approved plan:

 

Notice Jamieson's blue hatching is very small out of area - if you use the wrong plan. Also a minor issue is Jamieson starts his diagram under the western side boundary power lines (in red) when the real approved area is 10m east of there.

2. Contrast the approved plan in similar orientation due north top of the page.

Compare the approved plan below with the diagram to court above at point 1, and notice the big discrepancy in distances: On the northern side above it's 318 metres of works says Jamieson, but only 140 metres or similar (depending where you take the peg from) below in the approved plan before you get a 30 degree dog leg.

On the southern side it's 503 metres long above for Jamieson, and 410 metres or similar in the approved plan.

 

Here immediately below is a wider view of 1996 DA approved plan no. 3 of 3 from which our measurements come from. These official plans are enforced by direct cross reference in consent condition 1 of the original 1996 approval. The diagram in the dark square box we added shows where the approved plan above comes from, rotated 90 degrees left to show regular north. There is no controversy these are the approved plans.

 

 

 

3. The indicative real exceedance out of area, without being a surveyor, is something like this:

The real indicative proportions of blue hatching is approaching 40% out of area as we told the court as laypeople. Further objector Diamond advises a diagram went into a report to council back in 2004 which shows the true exceedance similar to our version above.

Given all this above it looks like C'er Brown's decision has been made on some very unreliable evidence from Peter Jamieson of Umwelt trying to pass off another figure (one of many in the EIS) with no relation to the actual approved plan necessary to indicate real exceedances.

B. Alleged assault by John Webster barrister for sandminer Birdon of objector Diamond at site inspection

Objector Diamond has made a report to Hornsby Police re this. I am an indirect witness. Diamond is a survivor of major paralysis and still disabled so for him to be shoved around is despicable. A direct witness Bill Sneddon has provided a contemporaneous file note of the alleged assault (pushing) with Webster saying "sorry". Mmm. Not very Bar Association type behaviour. Particularly a $6K a day barrister according to a bill of costs we have heard about.

The context: Webster lost a critical notice of motion to our pro bono barrister Eastman the week before, and then again at case management later the same day with myself as legal agent.  A week later at the inspection we served a 9 page submissions document and 3 page chronology of the non complying sand mine. Enough to give anyone some heartburn first day of the hearing/site inspection.

Webster's site inspection choreography then went off the rails when I presented a list of locations to attend based on the evidence in their own expert's reports and previous expert Jewell site inspection in 2007. This sabotaged the developer railroad of the inspection. Further we had a notice of motion to be heard first thing next day to be made a party to the proceedings allowing us to cross examine their expert in trouble on various matters if one took the trouble to wade through it as we had (as implied from part A above too).

All this pressure seems to have resulted in Webster losing his composure. We have Sneddon's excellent witness file note. A trained food scientist and picky by nature. He will stand up to scrutiny in any forum.

 

C. Bygraves admission of disposal of $10K bulldozer at the site inspection.

Windsor police now have this under consideration.

 

D. Chief Planner Owens tenure getting shaky?

We are hearing that chief planner Owens at Council on $300K plus p.a wage is casting his eye around to move on from Hawkesbury CC. He instructed council's lawyer on their legal strategy to not pursue issues of non compliance.

.....................

We look forward to any feedback at your earliest convenience.

Tom McLoughlin legal agent for objectors Sneddon and Diamond in 11133 of 2008.

............................[end]

"I am a food technologist with over 10 years full time experience and trained scientist. I am also a public interest environmentalist and a foundation member for 10 years of the Castlereagh Liquid Waste Depot  Community Closure Committee (CLWD CCC) set up by NSW Waste Services within the NSW Government. This body provides scrutiny on ground water contamination issues which also helps inform me about the Tinda Ck sandmine. I am also a member for 6 years of the Quarraintine Grants Committee with a $3/4 million budget also associated with the CLWD.

From: Ecology Action

To: Stephen Griffiths Pikes (solicitor for Hawkesbury City Council)

 Cc: Chris Jewell, hydrologist, Gordon Plath DECC litigation dept, Peter Jackson general manager of HCC, Kirsty Ruddock principal of EDO

Sent: Friday, August 28, 2009 10:01 AM

Subject: Birdon 11133 of 08 - Feb 2008 Umwelt water model report, request for full copy, every 2nd page missing in court exhibit?

Dear Mr Griffiths / Stephen

Birdon v HCC 11133 of 2008 decided by C'er Brown 18 August 09

As discussed with your PA Justine yesterday afternoon by telephone. Turns out the Umwelt water modelling report (allegedly overtaking the hydrologist Jewell 2007 for HCC), you released to us on instructions of HCC's GM is defective for lack of every second page.

Turns out from Justine's inspection your own copy similarly has only every second page.

The critical interesting bit about study of levels of evaporation water loss (ie as per Jewell 2007), or where it would be expected to be in the Umwelt report, seems to be missing. I stopped reading at that point and made the call to your office. (Near where he writes his report is only 'a desktop study' just like he accused Jewell of doing in the witness box.)

Could you please as the listed Party contact solicitor Byrnes for Birdon and obtain a full copy and indeed 'request' that they correct the document submitted to the court if they is necessary. Actually we would be most interested to know if C'er Brown was given a complete copy and whether the correct copy is on the court file.

...........................

Additionally Stephen, some intelligence on the site inspection:

The bypass channel at south east corner had a trickle of water at the start of it. Back with Jewell in 2007 site inspection (you weren't there, I did go) there was no water there in month of [March], but the main tailings dam was open water body. This time 17 August 2009 main tailings dam was de-watered over at a guess say 3 or 4 ha with only a few wet patches. 

The main effect of Jewell's 2007 report is that evaporation is a major factor - he said 37% [water loss] immediately below the quarry. That's why DECC have reinforced his concerns with proposed consent conditions of smaller water body in operations and final landform. Similarly the Parties have backed down to DECC: These DECC conditions have been incorporated in some fashion by HCC and Birdon.  We like to think we helped with that result.

All of this reinforces Jewell 2007 is right on evaporation and Umwelt Feb 2008 [water modelling report] is false evidence too. Like his out of area diagram in the witness box. Hence our intense interest in his water modelling report.

The out of area diagram is similarly related to water loss via evaporation because the original 1996 approval kept the open water body small, as did the EIS requirment (so I am told at 30% site disturbance at any one time). For Jamieson to present a deceptive diagram of small out of area hatching is calculated to cover up a bigger non compliance of exceeding their water licences as per Conner DLWC memo (2003 - 130 ML usage), and Jewell 2007 (98 ML) at least until that tailings dam was dewatered by 17 August 2009 site inspection.

But that's still a breach by Birdon of the POE Act and breach of their water license and not that long ago either. Something for DECC and maybe HCC to consider no doubt.

Very lastly who do you imagine put the dead fox carcass on the very spot of the Putty Rd bridge over Tinda Ck - exactly where we did our inspection with Jewell in 2007. Those country boys! Gotta love em. C'er Brown probably didn't spend very long looking from there on his own as he agreed to. But we did after the main inspection. The creek had a very small flow, again a bit better than 2007 inspection. In my view (as a rusty science grad) it all comes back to dewatering of the main evaporation source being the main tailings dam.

............................................

Thanking you in anticipation re the complete Umwelt water model report.

Please do not hesitate with any queries by tel 0410 558838 or return emial.

Yours truly

Tom McLoughlin, legal agent pro bono for objectors Sneddon and Diamond.

CC GM Jackson.

........................[end]

The objectors did a calculation while waiting for Commissioner Brown's decision in favour of the sandminer last Tuesday 18th August, in what one wag objector Sneddon now calls the Land & Extraction Court. They estimate about $206,000 in legal fees by Birdon Contracting in getting approval for their s.96 modification development application. And the costs of remediating their often illegal sandmine in an inholding to the world heritage area may cost someone many millions of dollars more.

For instance the original approved plans states the dredge fines will be buried 14 to 20 metres depth below the final open water land form. This is mainly crown land at that depth and they never bothered to get crown consent. It's common ground this hasn't been done anywhere on the site yet. Rather these claggy glue like dredge fines are overburden on commercial quantities of sand - the commercial reason they wanted to expand out horizontally in the first place.  

To move the dredge fines overburden - if they ever really do comply with this obligation to bury this quicksand at depth- defies engineering and economic practice. At least that's the view of the objectors and they have been proven right in time on most of their concerns so far. Just like the bogus 'out of area' diagram above.

One assumes it will be a matter of interest not only to DECC and DWE in place of DLWC now, how these dredge fines are processed but also the Dept of Mines people as well. A history of this controversial sand mine is here:

 

Version #3 version 16 August 2009 

Chronology Tinda Creek controversy inholding to Blue Mts world heritage area 

1981 – neighbour ND buys Lot 1 adjoining lot 2 future sandmine, “water from creek is like mineral water”

1982-1996  – water stops flowing in Tinda Ck once only 1982, first and only time says ND

1981-1986 – new ‘farm dam’ (1.5 ha/ 3acres) lot 2 becomes illegal sand mine operation (15 ha/ 30 acres) by Poyneed P/L ie Jan Stout and sons owners Lot 2

1985-6  - ND complains to Stout re ‘milkshake’ sediment pollution in creek water supply from lot 2 to lot 1 due to tailings dam walls progressively collapse [this was later marked “agricultural dam” in April 1996 approved plan no.3 of 3]

-         threat made by Jan Stout/Poyneed ‘you shut us down, we will shut you down’

-         campaign of at times ultra violent harassment/property damage commences v ND

1986 – sand mine Lot 2 originally farm dam, gets retrospective approval by HCC, Cr Books bulldozer work

1989 – Poyneed fined $10K in by State Pollution Control Commission (Local Court or LEC) for polluting Tinda Creek with illegal sandmine

1989 – 2004  Birdon Contracting P/L ie Tom Bruce as MD business/partnership with Poyneed/Stout

1986 -1991 – sandmine expands illegally, no HCC approval at any time this period before or after.

1991- 1996 – retrospective DA approval HCC for illegal sandmine over green group, neighbour objections

1995 May – Birdon EIS rejected by DUAP and HCC

1995 Nov – new Birdon EIS but plans are subject to various dept, community objections

1996 April – ultimate plans 1, 2 and 3 dated April 1996 by Port Stephens Design Services for Birdon.

1996 15 July – letter El-Chamy to HCC on details required for erosion/sediment control ‘formal hydrologic/hydraulic design’. Subject of finding by Pain J decision June 2009 on evidence never forwarded by HCC to Birdon therefore not required to comply with letter for what became consent condition 4 in Jan 1997 DA approval.

1996 Sept – ND mortgagee sale Lot 1 to Birdon, subject to option to re buy executed between solicitors

1996 – 2009 – dredge fines in plan 14m-20m depth to avoid pollution fine in 1989, buried much higher

1997 Jan -1999 arguably sandmine has lawful 2 year approval, controversy over lack of regulatory compliance

2000 – 2004 – sandmine operates illegally, gets retrospective HCC s.96 approval in 2004, deemed DA lodged in 1999 or so just not determined by HCC for 5 years.

2003 – ND discovered crown land from 15.24 metres with no crown consent to 1996 DA to bury dredge fines

2003 -2004 -  HCC GM McCully agrees in writing to objectors and ICAC to appoint independent barrister Phil Clay or Mary Walker to review Tinda Ck planning. Never done.

2004 – Poyneed selloff joint interest to Birdon

2004 – 2005 - Birdon get EPA and DIPNR/DWE water licenses for first time.

2005 March 16 – DLWC officer Connors memo that 150 ML quarry water use (125ML if 25 hrs/wk pumping: Bygraves)

2005 – existing area (top elevation, but not depth) available under 1996 DA ‘exhausts’ due to failure to follow depth diagrams in approval stranding 1.3 million tonnes under shallow dredge fines in approved area. Dredge fines should have been buried 14 to 20m deep as per approved plans.

2005 -2009 – quarry operating illegally out of area.

2005 – ND commences litigation over quarry  irregularities, settled by consent in 40430 of 2005 (“2005 Order”) Birdon must implement recommendations of Ecowise/Golder consultants

2005 October – Ecowise Golder report includes (at p7) 6 shallow/deep monitoring well pairs, data loggers, this data essential to water modelling. Never done.

2006 April – Ecowise/Golder report provided to HCC under cover of Birdon letter (not in LEC draft bundle tba)

2006  - s.96 DA lodged by Birdon with attempt by Umwelt to airbrush ‘confusing’ approved plans re dredge fines in wrong place, deceptive diagram of extent of Tinda Ck, and actual approved area.

2006 – new GM at HCC Peter Jackson ex ICAC

2007 May – Chris Jewell respected ind. hydrologist retained by HCC, ND etc attend inspection, report July,

2007 – 3 metre dry bore hole northern side with frog seen at Jewell inspection filled in.

2007 Sept – stakeholders at HCC re Jewell report on Umwelt errors, lack of monitoring bores, currently 37% water loss immediately below quarry in Tinda Ck, 53% loss if 22 ha of water bodies in future.

2008 – new broom in council election – eg Cr Books the earthmover retires.

2008 – DECC refuse to release ecological study to objector ND, not on council file

2008 18 July – solicitor Byrnes for Birdon letter to HCC threatening damages claim of $3M damages to council if this s.96 DA refused due to HCC’s own failure to enforce/manage consent conditions

2008 – Chief Planner Owens review of Tinda Ck in lieu of independent barrister promised to ICAC/objectors

2008 mid year – council demand to Birdon for $48K short payment of s.94 contributions

2008 – council votes 12 – 0 against sandmine despite friendly report by chief planner with narrow grounds of refusal on failure to comply with CC 4, Birdon appeals.

2009 – objectors demand transparency over ‘draft consent conditions’ in litigation process on current retrospective s.96  DA and right of objectors to be heard in the case before any deal is rubber stamped in letter to chief judge of LEC.

2009 June - Pain J decision in LEC that HCC failure to pass on El Chamy’s  15 July 1996 DLWC letter of  requirements for compliance with consent condition 4 (erosion/sediment) “prior to works commencing” effectively means far less compliance was valid. ND never called to give evidence of documents at late 1996 mediation with Tom Bruce/HCC.

2009, June 17 – Lloyd J decision in LEC against Birdon $48K in unpaid s.94 contributions.

2009 June – Umwelt update their EMP – final lake max 10m depth not 14, no sign where dredge fines to go. 6 ha of rehab bordering lake final landform with dredge fines under 30cm crust. No schedule rehab.

2009 August 14 – Umwelt response to issues – dredge fines to be buried 14 to 20 m as per 1996 DA plans, not done for 13 years, attaches March 2009 consent from Lands Dept to apply to council to use their land but no actual commercial licence deal yet. Water modelling at irrelevant locations upstream of quarry or below tributaries. Modelling proceeds contrary to Ecowise/Golder 2005 report requiring bore well data first, and critique of Jewell 2007. Also Umwelt ecological study still secret but in part in appendix shows Tinda Ck “drainage line” for 2 km is badly impacted (re water flow, low signal grade species) in comparison to nearby comparable creeks.

17 August 2009 – Chris Jewell independent hyrdrologist not invited by HCC to the site inspection. Has he been shown the Umwelt EMP June 09, the reply to issues Aug 09 contradicting Jewell water loss findings?

  .............................................. 

A copy of our submissions to C'er Brown at the site inspection follow, which was added to the court exhibits, with some minor verbal additions on the day shown in italic:

Objector submissions under s.79C EP&A Act 1979 re Tinda Creek sandmine s.96 modification DA [on behalf of objector Neville Diamond, also adopted by objector William Sneddon, delivered by legal agent Tom McLoughlin]

 

16 August 2009

 

Mr Commissioner

 

I have instructed my pro bono legal agent to draw up a chronology for you from 1981 to the present, with an extra copy for the parties. I have also advised my legal agent to draw up these speech notes to facilitate the hearing.

 

Mr Commissioner you already have with you the statement of my issues filed as per the direction of Justice Pain filed 1^st July 2009. Justice Biscoe has decided 10^th August 09 to allow me to be an objector despite a misconceived notice of motion by the appellant Birdon last week. Mr Commissioner you have agreed last week to hear all my issues subject to weight and relevance and I thankyou for allowing that.

 

Mr Griffiths for Council has suggested to hear our objections is proper no matter, to quote him, “however wayward” these issues are.

 

With respect my objections are not wayward. I’m not an educated man but I am a very experienced person. I was once a wealthy truck driver. I also worked 5 years as a researcher for Dixon Sands at Maroota 1996 to 2001 inclusing liaison with their legal people. I have the assistance of the EDO over the years, my legal agent and colleague Bill Sneddon who is a scientist as well as wide social network. [please also refer to Mr Sneddon's background on environmental issues in his affidavit of 30 July 2009 in these proceedings]

 

I was the property owner at Lot 1 neighbouring the sandmine in 1981 before it was even a farm dam. I lived part time there on lot 1 with my then wife Natalie and our son Matthew who grew up having to deal with all this trouble and danger. It seriously affected my marriage and I am now divorced and suffer post traumatic stress disorder to varying degrees whenever I think about this sandmine saga.

 

After my troubles began with the violence coming from the sandmine staff or their associates I lost my rent paying caretakers on lot 1, including a friend called Laurie Johnson, and I was forced by the bank to sell in 1996. It was bought by Tom Bruce the managing director of Birdon. As presented by our pro bono barrister Nick Eastman to Justice Biscoe last week in my affidavit, Birdon agreed to a legal option in my favour so that I could buy back my place on lot 1. This option was drawn up by solicitors for Birdon and I. 

 

Birdon gave me that option because they knew I had real merit to my objections and these could cause them a lot of trouble. They didn’t give me that option out of charity. It was a serious negotiation. But I never got the chance to exercise the option because a bulldozer asset of mine was stolen and sold by quarry staff.

 

I have references included in my last affidavit to Justice Biscoe from peak green groups NSW National Parks Assciation, The Wilderness Society, Blue Mountains Conservation Society, Colong Foundation for Wilderness. I am also supported in moral terms by Hawkesbury Council Watch a local community group.

 

I have another copy of these to tender for you commissioner. Their concern no doubt as well as mine are the wonderful Blue Mountains National Parks World Heritage Area including Wollemi immediately east and Yengo immediately west of the quarry. Both parks are official wilderness areas under that legislation. I can provide documents proving the conservation status of these places if needed.

 

Further, the Mayor Bart Bassett has also told me on several occasions that I have the best knowledge of the file because I regularly go and check on it’s contents.

  

My submissions today relate to  

 

1. Why the s.96 DA is not the same development under s.96 (2);
2. Why this s.96 DA is designated development under the planning rules for non compliance not because it’s already out of area;
3. Why the EMP is seriously flawed;
4. Why the draft consent conditions are seriously flawed
5. Why Chief Planner Owens report and HCC is unreliable
6. The DA itself is flawed and shouldn’t have been accepted.

………………………………………….

 

1. Why the s.96 DA is not the same development [under s.96 (2)]

 

(a)    The last report from Umwelt says the lake will be 10 metres depth not 14 metres as per original approval;

(b)   The final landform will have 6 ha of dangerous dredge fines adjoining the banks of the final open waterbody while the original DA buried these 14 to 20 metres depth. A 30cm crust will be over these dredge fines which in wet weather could easily liquefy and become unstable. Further the dredge fines in shallows from zero to 10 metres depth will be a hazard to visitors, bushfire fighters harvesting water, and wildlife.

(c)    The original 1996 DA had staggered approvals to regulate rehabilitation and any non compliance, while the staging here is one approval all the way to 2021 for 5 different stages;

(d)   The final landform in the original DA is clearly set out with engineering design plans while this has a top elevation diagram and no other details how to achieve the depth or grading of batters or capacity of equipment to achieve the burial of dredge fines 14 to 20 metres;

(e)    The material to be mined is not the same material. Here they plan to mine and relocate up to 350,000 tonnes of existing dredge fines, rather than wash sand from its natural state to produce tailings;

(f)     It’s a different 1.3M tonnes of sand to the original 14 ha approved plan because they stranded a large deposit through failure to follow the depth specification in the original approval. It is also an extra 25K tonnes of sand per year.

(g)    There will be huge increase in fuel needed to pump or move existing dredge fines additional to normal sand production. If they need to move 300K tonnes of dredge fines, based on EIS figure of 2.4 litres of diesel per tonne of sand produced, the extra fuel will be 720,000 litres of diesel;

(h)    The economics of moving 300K tonnes of dredge fines at full cost of staff and equipment is a completely different proposal.

(i)      The new area will increase exposed water bodies and increase water loss to Tinda Ck estimated at 37% loss now with the quarry only expanding since 1996. Jewell (July 2007) says the water loss for a 22 ha water body would be 53%.

(j)     More water will be needed to process the extra 25K tonnes of sand production, as well as moving existing dredge fines. The water license for the dredge ponds is 40ML. The quarry already greatly exceeds its water licensing based on the hours of operation admitted at the stakeholder conference with Jewell at HCC Sept 2007 of 25 hours (Bygraves) applied pro rata Connors DLWC memo of 2005 of quarry use of an  estimated 150 ML loss at 30 hours, leaving a total of around 125 ML.

(k)   If this were the same development one might not expect so many changes to the draft consent conditions for the main 1996 approval

 

 

  2. Why this s.96 DA is designated development under the planning rules  

We have been advised by the NSW EDO by their letter of 17 Sept 2007 in the court bundle that this is a designated development under s.96 (2) of the EP&A Act. For consent under 96 (2) one is referred to the regulations. Regulation 2000 under the EP&A Act addresses whether an alteration is a designated development at Schedule 3, Part 2 clauses 35 and 36.

 

The factors discussed above at point 1 and in the EDO letter advise it is not substantially the same development.

 

Additional factors also apply under clause 36 of the Regulation not mentioned above or in the EDO letter: Clause 36 refers to

 

“previous environmental management performance including compliance with the conditions of any consents … or authorisations by a public body”

 

As evidenced by the letter of consent from the Dept of Lands dated 18 March 2009 allowing Birdon to apply to use Crown Land to bury silt fines from 15 to 20 metres (in Umwelt 14 August 2009) Birdon have effectively admitted they have not complied with this requirement in the approved plans for 13 years to date. A survey by Matt Freeburn confirms there has been no compliance with burial of dredge fines below 15 metres.

 

Further the 2005 orders by consent of the LEC (in Diamond & Kent v Birdon Poyneed  and HCC no. 40430 of 2005 ) - also the subject of Birdon’s failed notice of motion last week - requires Birdon to implement the recommendations of Ecowise/Golder Report as to 6 pairs of monitoring bore wells and installation of data loggers. HCC’s expert notes the failure to do this as compromised any reasonable water modelling on the impact of the quarry on Tinda Ck immediately downstream.

 

In addition the CSIRO report of July 2008 on "Drought exceptional circumstances" has not been addressed. This report was considered by C. Moore and C Taylor in the Peats Ridge water bottling Case 2008 where they took a precautionary approach at paragraphs 32, 33, 34, and 39 of Kettle/Coca Cola Australia v Gosford City Council  (2008).

 

And as per our statement of issues other non compliances include:

 

- 40% out of approved area, with this s.96 modification seeking retrospective approval, and as per letter of letter of HCC 7 November 2005 by Greg Hall to Birdon (not included in the bundle)

- concrete silt ponds never installed as required by EIS at page 12

- failure to provide annual reports as per Owens HCC Report

- failure to pay s.94 contributions of $46K as per recent decision of Lloyd J in this court

- demonstrably exceeding their water license allocations as per figures of 130ML/yr use in the CM Jewell expert report of July 2007 based on a mere 40-55ML/yr license allocation

- failure to report lack of Crown Consent under consent condition 33 reporting regime.

  

Additionally under Regulation 2000 schedule 3, clause 36 (c)

 “any proposals: (i) to mitigate the environmental impacts and manage any residual risk”  

This surely relates to the risks of the shallow silt fines in the lake dangerous in drought, and unstable on land surface in wet weather. Clause 36 (c) continues:

 (ii) to facilitate compliance with relevant standards, codes of practice or guidelines published by the Department or other public authorities  

This may well relate to guidelines on groundwater dependent eco-systems from DLWC/DWE, at risk as per expert report of hydrologist Chris Jewell to HCC regarding water loss from evaporation impact risk of bigger water bodies. SREP 20 will also apply as regards no adverse effect on groundwater dependent eco-systems.

 

Planner Owens attempts to say in his report the Concrite Case applies to show this is not designated development but the facts above are highly distinguishable from the Concrite case due to so much non compliance. Additionally there was no environmental damage in that case whereas here Umwelt’s EMP own ecology survey says Tinda Creek is running dry compared to other creeks at the same time immediately below the quarry, with lower signal species number. Jewell (July 2007) says there is 37% water loss in the same location.

 

 

 3. Why the July 2009 EMP is seriously flawed; 

Errors in the EMP, and Umwelt August report

 

1. At p2, first line – Tinda was not intermittent 1981 to 1996, stopped flowing only once in that time in 1982.
2. At p2  claim by Umwelt about stage 1 dredge pond having “minimal potential to cause significant lowering of the groundwater table upstream of the extraction area” which is flatly rejected by Jewell (July 2007 at page 7, 6^th paragraph). Jewell points out role of dynamic water system and evaporation. Further Wayne Connors of DLWC in 2003 noted about 1500ML was being pumped around the system with industry practice of 10% water loss.
3. Groundwater modelling at page 2 is dubious because as noted by Ecowise/Golder (2005) and Jewell and as required by consent Order 2005 monitoring bores and data loggers have not provided the required information to do accurate modelling for at least the 2 km of Tinda Ck immediately downstream of the quarry. Note especially the modelling locations in Figure 2.2 indicate location A is above the quarry and so not probative. Location B is on a tributary below and west of the bridge on Putty Rd and so also not very probative. Location C is many kilometres away downstream with many tributaries intervening and again not probative.
4. Jewell flatly contradicts Umwelt on water loss projections  by estimating 37% currently. Jewell being independent is to be preferred. Further Umwelt’s own ecology report attached (at EMP appendix 1 page 2 middle of page) indicates Tinda Ck at site 4 (figure 2.3) immediately below the quarry ‘runs dry even when similar creeks nearby run okay even in dry times’. A clear indication Tinda Ck is stressed at that point and probably for 2 km to the first tributary which is an un named creek from the south east. Jewell notes a 53% projected water loss if like the last 13 years the quarry just gets bigger and spreads to the full 22 ha area of the EIS study, with only 14 ha approved in  1996.
5. At section 3.3 re rehabilitation: There are no engineering diagrams or depth diagram or proven method indicated of moving existing dredge fines over the sand body stranded in the approved plan area at figure 3.1 given such fines will be heavy, congealed, worse than slurry concrete to pump. Yet at least some of the 350K existing tailings are to be moved to form a 6 ha land surface cap adjoining a final water body. Existing dredge fines  will be even harder to move once progressively dewatered. The EMP is glib about moving by “land overflow” and ‘pipe on floats’ but these likely can only work efficiently on dredge fines in suspension recently ejected from the cyclone to win sand output, not dredge fines that have settled for weeks, months or years in one mass. We don’t believe a cutter suction dredge will be able to pump solid dredge fines. By comparison we note the PF Formation or Dixon’s sand mine rehabilitation plan is a whole volume, not a thin document.
6. On rehabilitation the soil stockpile shown on the 1996 approved plans no longer exists because Poyneed the former business partner of Birdon has sold it off. Hence the EMP refers to capping from non existent soil onsite at only 30 cm crust over dredge fines without declaring the true state of affairs regarding topsoil.
7. On rehabilitation there is no schedule from now until 2021 unlike the approved plan with timetable included.
8. On rehabilitation there is no change to a woefully inadequate $50K bond.
9. On rehabilitation there is no mention of the EIS requirement of a maximum 30% of site disturbance rule.
10. The EMP on Erosion and Sediment Control at section 3.6, page 11 makes no mention of the “Formal hydrologic and hydraulic design” required. These details were required in the now infamous letter that HCC received from DLWC dated 15 July 1996 and failed (according to Justice Pain’s decision June 2009) to forward on to Birdon. Birdon should comply with this letter even now 13 years later.
11. Groundwater monitoring at section 4 page 14 is highly impertinent as it omits the mandatory recommendations required by consent Order 2005 in the LEC to have already implemented 6 pairs of monitoring bore wells. Jewell similarly notes failure to implement bore holes for monitoring in 2007.
12. Ecological monitoring at section 4.2: Birdon/Umwelt refuse to date to release to council or the public their ecological study they claim at appendix 1 to satisfy DECC’s EPA license. The study at appendix 1 is also troubling because the conclusion is a non sequitur to the contents of the report. Tinda Ck immediately below the quarry becomes a “intermittent drainage line”. At the crucial site no. 4 there is a poor signal grade of 1 compared to other sites. Also the author notes that section of Tinda Ck is badly affected by low water flow running dry while other comparable creeks run well even in dry periods. To say at page 3 therefore there is no impact on Tinda Ck is therefore quite a non sequitur. The EIS calls for seasonal study of frogs not limited sampling as here.
13. It is troubling to us that HCC have not retained independent hydrologist expert Chris Jewell to critique the Umwelt June EMP or 14 August response to our issues given Umwelt attacks Jewell’s finding at paragraph 20, page 6 August report.
14. P9 issue 17 para 35 of Umwelt August 2009 a claims testing was done east of existing extraction area by Coffey Partners. However Coffey diagram 7.4 in the EIS shows this is wrong or deceptive as the bore holes are inside the eastern boundary.
15. We believe the real solution to this hopeless development is radically different eg move the degraded  hill on lot 2 into and fill the quarry hole, and cap it to revive Tinda Crreek in 4 or 5 years, and use dry mining techniques to achieve that.

  

4. Why the draft consent conditions are seriously flawed

 

We note Mr Griffiths for HCC view in his letter of 27 Jan 09 that “It is unusual to impose conditions on a modification application.” Yet the draft consent conditions propose numerous changes including 10 weakly drafted conditions lifted without adaptation from a DECC letter of 20 Sept 2007.

 

Our feedback on the current proposed draft consent conditions (cc) from HCC/Applicant Birdon as follows:

(i)                  starting with cc 4, this should reflect the requirements of the letter of Marwan El Chamy dated 15 July 1996 as per paragraph 61 of Justice Pain’s recent decision, taking into account the effluxion of time and works to the current day.

(ii)                Cc 13 regarding amenity should remain especially as regards integrity of Tinda Ck downstream

(iii)               Cc 18 as per (ii) above in case of threats to Tinda Ck water quality and into the national park

(iv)              Cc 27 annual review of proposed EMP should also be provided to DECC and DWE.

(v)                Cc 27 should address changes in groundwater depths

(vi)              Cc 27 proposed EMP must address specifically how, and the scheduling, for relocation of dangerous shallow fine silt intended as the bottom of a final water body, or now to be capped, with engineering drawings showing depth dimensions. The silt is now approximately 350K tonnes.

(vii)             Cc 32 - Given the non compliance with dangerous shallow silt fines the bond should be $1M and $250K at the very least, as per previous costing estimates in our correspondence to council.

(viii)           Cc 33 - The annual report should to “to the satisfaction of council”.

(ix)              Cc 35 – The measure of 2M tonnes should be for the whole extraction since around 1986, not 1996, given illegal mining, retrospective approval in 1996 etc

(x)                Cc 37 – all the recommendations of expert CM Jewell should be adopted not just these 2, and they should be expressed in mandatory language with specified scheduling. The closure plan should be copied to and approved by DECC and DWE not just HCC.

   

5. Why Chief Planner Owens report and HCC are unreliable in this litigation 

The Owens report fails to address various non compliance issues re crown consent, dredge fines in wrong place, lack of engineering diagrams for current proposal, deceptive application and so on.

 

HCC have failed in this litigation to call evidence from the objectors in the first half of this split hearing on the legal question of consent condition 4 lapsing of consent. That question turned on alleged lack of notice to Birdon of DLWC 1996 letter on sedimentation and erosion control. We believe reticence by HCC is to avoid embarrassment over past non compliance or regulation rather than to address the merits of the new DA.

 

Further the extended Owens report does not mention that his report is in lieu of a promise to the community by two previous general managers, as well as by HCC to ICAC, for an independent review of Tinda Ck by a qualified independent barrister. Correspondence shows this was to be barrister Phil Clay or Mary Walker but they were never appointed.

 

It is troubling to us also that HCC have not called Chris Jewell as their independent expert to respond to Umwelt for Birdon.

 

It is also troubling the redundant May 1995 EIS appeared in the draft list of the court bundle given consent condition 1 cross references the Nov 1995 EIS.

 

It is troubling to us that HCC has not checked with council surveyors or engineers about how the rehab could work moving existing silt fines after years in sediment ponds via “overland flow” or “pipe attached to floats” or other engineering limits to burying the silt fines as per the approved plans, or the adequacy of a $50K bond.

 

It is troubling to us the draft court bundle (total at that stage of 114) excludes the 2005 LEC Order re clause 4(a) mandatory recommendations of Ecowise/Golder (Oct 2005) and that report also excluded, which is cross referenced by Jewell July 2007, in turn cross referenced by Umwelt (August 09). The Order and report demonstrate failure to implement monitoring bores.

  

6. The DA itself is flawed and shouldn’t have been accepted.

 

The DA doesn’t declare retrospective approval sought for illegal works.

 

Contrary to the 2000 EP&A Regulation at clause 283, the Applicant via agent Umwelt  claimed “confusion” over the specific approved plans and proposed a replacement plan, presumably to sanitise the non compliances to date regarding dredge fines to be buried at depth.

 

There has never been any confusion over the real approved plans in 3 parts dated April 1996. Additionally the advert of the s.96 application falsely indicated Tinda Ck was truncated 500 metres from the current sandmine operations when it runs immediately proximate to the sandmine.

   

Posted by editor at 3:07 PM NZT

Updated: Friday, 28 August 2009 4:37 PM NZT

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