2. I am represented  pro bono by my agent Tom McLoughlin currently an applicant to the NSW Law Society for sole practitioner status.  A resume’ of my agent is attached to this affidavit and marked “ A  “. He has 16 years in pro bono legal and non government environment group representation since 1992, including 4 years as a local councillor at Waverley LGA for Bondi Ward 1995-999.

3. I am an objector to DA 22097/2003 amendment under  S.96AA  of the Environmental Planning & Assessment Act modification application by Coca Cola Amatil (Aust) Pty Ltd (CCA) to dispense with the trial conditions of 66ML/YR as per condition 14 in Annexure A of this court ordered 18 November 2005 pursuant of Commissioner Tim Moore in his decision of Sept 29 2005. The front section of my objection dated 16 November 2008 is attached marked “ B  “ . A further short submission on the council report by fax dated 4 Feb 2008 is attached marked “  C  “

4. As outlined in paragraph 11  below there was a month’s delay in receiving written notification of the CCA application from GCC as consent authority. My letter from GCC is attached marked “ D “ dated 29 April 2008. This letter was only received in the mail  sometime in the first week or so of May 2008.

5. My agent Tom McLoughlin wrote by email to the Registrar of this court on 31 May 2008 to be heard in the proceedings as an objector. A hard copy of the email is attached marked “ E” .

6. I have been provided with a letter of support to be a party in these proceedings by the respected and locally influential tax exempt registered charity in the area namely Mangrove Mountain District Community Group Inc in their letter dated 6 June 2008 under the hand of local history authority Margaret Pontifix, Honorary Secretary, also a retired teacher in agriculture and biology and science graduate of Newcastle University. The letter is attached marked “ F  “ and reads as follows:

“Our committee (executive conference) strongly supports Neville Diamond as a public interest litigant in the court proceedings between Coca Cola Amatil and Gosford City Council regarding Peats Ridge Springs.

We believe this is definitely in the interests of justice and public interest that he be joined as a party.”

6. I submit that through my agent Tom McLoughlin I will be raising distinctive issues both new, and also similar to GCC but in my case deeper detail and independence, as per the test in s.39A above. In this respect I refer to the long list of public interest concerns in our email correspondence to the state govt dated 12 June 2008 attached and marked “   G   “ on the merits issues before this court in Class 1 proceedings. It can be noted that prominent people/groups in the mainstream environment movement are also opposed to this CCA bottled water development (such as Total Environment Centre, and Clean Up Australia) and have been copied in on that correspondence.

In summary headings following the merits issues listed in the 12 June 2008 email to the state government regarding this development of bottle water industry at Peats Ridge Springs (CCA site) include:

(a)     lack of full EIS environmental assessment for a development of this size;

(b)     prohibit bulk export of water by tankers in breach of the General Terms of Agreement water license cl.1.5, and in this respect I attach marked “ H  “  the GTA dated 28 January 2005, and  another document marked “  I  “ being the a print out of the CCA website saying Peats Ridge is “water bottling only” not bulk tanker trucks as observed by the neighbour since Feb 2008;

(c)     rehabilitation of the waterways ;

(d)     production/return of the Green Folder of historical material by GCC;

(e)     proper consideration of the Alkhatib & Merrick groundwater study of November 2006, especially disjunction with the sustainable yield measures of the Kulnura Mangrove Mountain Water Sharing Plan. In this respect I attach marked “ J   “ an email by my agent to Hemantha De Silva of Newcastle office of the Dept of Energy dated  5 June 2008. Further I attach marked “ K  “ an extract of the Alkhatib and Merrick report. It is very curious to me as per the letter marked “ L  “ by Dan McKibbin dated 9 August 2005 for then DIPNR state department that he cross references the expected Alkhatib & Merrick groundwater study yet this same critically important study is not given due consideration by CCA developer or their consultants;

(f)       failure to complete a trial at the 66ML/YR as per Commissioner Tim Moore decision 2005;

(g)     LEP 381 under IDO 122 seeks to squeeze the bottled water extraction not increase it. In this respect I attach marked “ M  “ a letter from NSW Agriculture dated 4 December 2003;

(h)     The fast emerging extra detail on climate change/rainfall risk eg driest May on record. In this respect I have attached a sheaf of articles in the mainstream press about climate and water bottling marked “ N   “

(i)       Escalating price of fuel for water already transported by the city water mains as contrary to ESD principles under s.79C (e) of the EP&A Act 1979;

(j)       The inherent uncertainty and unreality of treating CCA site and near area as one aquifer as per expert advice of hydro geologist Dr Brian Marshall, retired lecturer University of Technology, 3 years President of Blue Moutains Conservation Society, to my agent re semi confined and independent multiple aquifers. Further to this I attach a letter marked “ O”  with questions to be put to the court appointed expert as drafted by Hydroilex Groundwater Specialists dated 8^th April 2008;

(k)     The inconsistency of CCA position seeking urgent expansion of their water extraction to 66 ML/YR and then deliberately under utilising that license for fear of real impacts being exposed;

(l)       Possible interaction of Dept of DWE determination under the Water Sharing Plan scheduled for 1^st July 2008;

(m)   Perceptions of lack of independence of CAE Anthony Lane to CCA expert Dr Beck both apparently of Melbourne;

(n)     The need for greater scrutiny, not less, in light of $900K in political donations by CCA to the NSW Govt. In this respect I attach marked “ P   “ media release by Ian Cohen MP (Green Party) dated 15 May 2008 and 21 May 2008. The Greens maintain the respected authoritive Democracy4sale website at http://www.democracy4sale.org/ organised by retired academic Norman Thomson (as reported by ABC Stateline, 7.30 Report and others);

(o)     Concerns of NSW Farmers Association of “collusion” not collaboration over water sharing allocations. In this respect I attach marked “ Q   “ article by Ross Hitchcock, Vice President Central Coast Farmers in Mangrove Mountain and Districts Community News 6^th June 2008. Further I attach marked “ R  “, “ S  “ and “  T   “  minutes of meeting with Council dated 24 March 1992, and of MMDCG Inc dated  4 March 1993 and minutes of a public meeting hosted by MMDCG of 1^st August 1996 regarding tensions between farmers and water bottling interests at Peats Ridge Springs;

(p)     The derisorily low cost of the 66ML/YR water to CCA which is apparently a $200 license fee, effectively cruelling the funding of genuine independent monitoring and environmental management/enforcement;

(q)     Secrecy over external auditors report relating to this site by consultants Internal Audit Bureau (IAB) into Gosford City Council, and section of Dept of Water & Energy. In relation to the IAB investigations of this site refer letter marked “  U  “ attached by Garry Hodson, Executive Director, Strategic Corporate Development, Dept of Water & Energy 11 April 2008, and similarly 2/6/08. And refer also letters marked “ V  “ and “ W   “ dated 3/7/07 and 15/08/07 respectively.  In this respect we also attach marked “  X  “ recent adverts of the Dept of Water & Energy which appears to be boosting its staff to get a better grip on this area of past dysfunctional administration. As to the exclusion of the IAB report from the public into Gosford Council refer letter marked “  Y “ dated 10 March 2008. In addition refer attached letter marked “X1” dated 2/6/08.

 In addition to this list above should be added

(r) an expert report by Brink & Associates for then owner of the CCA site, Livio Pace, under cover letter attached marked “ Z  “ dated 28 May 1996  indicates dynamic interaction of the bores on the CCA site to the neighbouring Azzopardi site. We understand that this dynamic interaction was at a time of only 8 ML/YR licensed water extraction. Logically it follows that a permanent 66 ML/YR extraction is likely to be far more interactive and even catastrophic for perched aquifers of close neighbours in a semi independent or semi confined aquifer as per advice of Dr Brian Marshall at point 6 (j).

This information of dynamic interaction can be taken in combination with the expert report of multiple semi independent aquifers which can act separately and distinctly (for example expert report of Parsons Brinkerhoff for ERM dated 7 Sept 2004 for CCA:

“A single aquifer model is not a suitable representation of a the multiple aquifers that are present in the Hawkesbury Sandstone at this [CCA site] if impacts on users and dependent ecosystems are to be quantified. This is because bores tap different aquifers, GDEs [groundwater dependent ecosystems] are linked to different aquifers, different permeabilities  exist for different strata, and deeper water levels are generally associated with the deeper aquifers” at page 4. Refer extract of report attached marked “ AA  “

(s) Concerns flagged by the Dept of Agriculture in writing as far back as 2003 of nitrates from the chicken for meat farm production at the site next door and the potential for contamination of the bottled water product. 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. In this respect I attach marked “   “ a letter from NSW Agriculture dated 4 December 2003

Further in this respect I attach marked “ AB “ a report of ERM consultants to CCA/Peats Ridge Springs dated  Sept 2004 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.

Further measures 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.”

Similarly in the ERM report dated October 2003 attached marked “ AC “ states:

• “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

• Groundwater flow at the site is to the southwest and south-southwest with an average hydraulic gradient of 0.03 to 0.04.”

(Notable in the same report is the strange reference to the creek on the site being both permanent and ephemeral as extracted and attached.)

7. One significant issue is the baseline ecological state of the environment, and stream flow of Peats Ridge Springs in this development (CCA site) and the missing Green Folder of historical information including photographs. Commissioner Tim Moore borrowed the folder belonging to Margaret Pontifix in the 2005 proceedings and she now advises that she was told by the registry for this court it was to be returned to her via “Mr Donnellan” as GCC solicitor. The folder has mysteriously gone missing and I intend to call for this irreplaceable evidence to be produced including by subpoena to GCC’s solicitor and Mr Patrick Donnellan, who apparently is now retired. I refer to letter marked “AC1” dated 6 June 2008 by Margaret Pontifix.

I attach curious correspondence allegedly regarding Mr Donnellan’s carriage of this matter marked “ AD  “ 19 April 2006 suggesting less than a straight bat as regards one community objector Azzopardi.

My being a party with the right through my agent Tom McLoughlin to issue subpoenas and cross examine on the merits of the development seems even more important to help ensure integrity of the planning process and justice to community stakeholders. In this respect I attach marked “ AE  “email to Robert Byrd solicitor with Donnellan and Co for GCC dated 4 June 2008 calling for the Green Folder to be produced.

8. Further the CCA site has been seen as highly controversial over water bottling for a long time and I attach marked “ AF   “  legal advice from Donnellan and Co from the mid 1996 which verify the apparent unlawfulness of this operation dated 21 October and 15 November 1996. Further to this I attach marked “ AG  “scathing report of the former owner’s unlawful development of the CCA site by  Hirst Consulting Services Pty Ltd dated 26 November 1997:

These historical analysis are relevant today because it is my belief that CCA have positioned for commercial retail and public relations reasons the former owner and relatively small operator Pace as the ostensible water bottler while destroying the local environment but it was always to the benefit of the CCA being supplied the bottled water with Pace as the proxy. This is disreputable business practice in my belief as a way to avoid scrutiny as a big business company damaging a water course and Peats Ridge Springs, as apparently has happened in the Illawarra before Mangrove Mountain.

9. I rely inter alia on precedents suggested to us for further research by the principal of the Environmental Defenders Office in relation to joinder issues namely:

·         Kavia Holdings Pty Ltd v Sydney City Council [2003] NSWLEC 195

·          Pro-Vision Developments Pty Ltd v Ku-Ring-Gai Municipal Council [2003] NSWLEC 226  case