We've published in January and February 2008 about the cowboy sandmining industry operating in breach of development consents in the Maroota area 45 km northwest of Sydney:
Now we are examining a sandmine at the Tinda Creek area on Singleton Rd on the eastern boundary of the Wollemi National Park and world heritage listed area.
Picture: Huge sandmine hole next to Wollemi World Heritage national park on one side and Yengo NP/McDonald Wilderness on the other, 40 km west of Sydney next to the Singleton Road. The sand "pulled out" goes into the ALP controlled construction sector. The mine by Birdon Contracting Pty Ltd was illegal 1986-96 then given retrospective approval by Hawkesbury River Shire Council, and proceeded without valid development consent from 1996-2007 according to Environmental Defenders Office written legal advice. It is due for takeover by Adelaide Brighton Pty Ltd and most likely will be expanded to 270 ha and approved by Minister Frank Sartor in due course. It is killing the water flow in Tinda Creek into Wollemi natural heritage area. There is no real restoration of these huge sand mine sites. They are usually left as quicksand slurry pits (called 'lake' in the spin). Photo by SAM editor 14th March 2007.
Later today we have an appointment to meet with veteran agitator Neville Diamond, and the Mayor and General Manager of Hawkesbury Council with two legal advice letters from the Environmental Defenders Office (one by Kirsty Ruddock no less, daughter of ex federal minister), and another letter from the Dept of Water and Energy. These are already with the HCC.
The hierarchy at Hawkesbury Council are due to consider a 2006 development application for 1.3 M tonnes of sand extraction damaging Tinda Creek into the national park and other landholder neighbour's water supply.
Picture: Neighbours site visit 14 March 2007 with sandminer Tom Bruce 3rd from Left
Only the sandminer's Enviornmental Impact Statement in 1995-6 never considered the area for the extension of their sandmine, they have been found by HCC to have underpaid s.94 developer levies by at least $48,000 and arguably alot more, and have never submitted "details" of "erosion and sediment control devices" as required "prior to any works commencing" in 1997. This might be because the developer illegally 'moved' the creek contrary to the Rivers and Foreshores Act and to provide detailed plans of erosion and sediment control might give the game away?
In other words the sand miner, Tom Bruce's Birdon Contracting Pty Ltd has effectively been operating unlawfully without the relevant environmental management plan and have no operative consent having lapsed either 2 or 5 years after late Dec 1996.
The Council are obliged to enforce their own consent conditions including against local Big Wheel Tom Bruce. So will they?
Picture: Before 1984 (top), and after 2005 (below)
Here is our briefing paper for the senior officers Matt Owen (chief planner), Peter Jackson (GM), and Mayor Bart
Agenda – 3pm Tuesday 18 March 08 Re Tinda Creek sandmine
Mayor Bart Bassett, General Manager Peter Jackson with Neville Diamond (ND), Tom McLoughlin (pro bono adviser)
Action requested of council:
- Take Class 4 proceedings in the Land & Environment Court to close the sand quarry and immediate halt export of sand for lack of consent;
- Seek orders of the Land & Environment Court to remove the bypass channel from Lot 1 and to restore the water flows to Tinda Creek and to rehabilitate the site eg smaller pond(s);
- Quantity survey of how much material has been extracted from the site to make sure RTA gets the money due hypothecated to HCC road costs;
- Apply the existing $50K already in the rehab bond to generate and expert plan for rehabilitation. Birdon must not do such a plan;
- There is no need to send a s.96 extension decision to a meeting of councillors because there is no discretion to exercise.
- A new application and new EIS is required for a substantially new development.
1. letter from DWE to HCC dated 3rd March 2008 (“DWE letter”) proves lapsed consent for lack of approved erosion and sediment controls.
A. Under consent condition 4, DA 134/95 approval Dec 96 for Birdon Contracting Pty Ltd (“BC”) re sandmining approval at Tinda Creek Lot 2, DP 628806, states
“Erosion and sediment control devices shall be installed and maintained during construction and ongoing operations. Details shall be submitted and approved by the [DLWC] prior to any works commencing.”
DWE letter evidences no details provided and condition 4 has not been complied with for 12 years to 2008.
B. By way of corroboration of point A:
In the absence of lawful commencement, EDO advice letter of 27 Sept 06 to ND (copy with HCC) states DA consent lapses by consent condition 3 after 2 years (see EDO para 15), and in any case in 5 years by s.95(1) of the Environmental Planning & Assessment Act 1979 (EDO ltr para 14). See also EDO paragraphs of case law 16-23. The DWE letter answers EDO’s question at paragraph 29.
C. We submit voluminous correspondence and postures are not probitive of any “details” of “Erosion and sediment control devices” under condition 4 ever being undertaken verbally or in writing. Consent condition 27 for instance requiring an “environmental management plan” (EMP) including “Erosion and sediment controls” by early 1997 has never been provided.
Similarly a 2004 consent under s.96 EP&A Act extension of sandmining into areas 2, 3, 4 , 5 and 6 also required within 2 months the submission to council of erosion and sediment control devices in another EMP which again have never been provided with.
D. HCC has no power to grant current 2006 s.96 extension for a consent that has lapsed.
2. The 2006 s.96 modification is for a different development to the 1996 consent and needs a new EIS.
Refer to EDO letter to HCC dated 17 Sept 2007 especially reference to criteria in schedule 3, sections 35, 36 of the Environmental Planning and Assessment Regulation 2000
DA seeks to extract 1.3M tonnes outside the area granted consent in 1996, namely new areas 1a and 2a (as marked on the plan with the 2006 s.96 application). For instance Coffey & Partners geotechnical study in 1995 EIS does not include bore hole results or technical data outside the 1996 approved extraction area. To put it another way new areas 1a and 2a do not have geotechnical environmental assessment for this new 1.3 M tonne extraction. . Further the EPA/DCC officer Kieren Horkan has already made a written submission to council on this DA that the ponds must be made smaller to reduce evaporation for the creek into the national park, neighbours.
The 2006 DA must be considered as designated development, and a new application and a new EIS must be provided
3. Excessive water use
BC is using about 125 Mega Litres p.a. for the dredge pond (figure via Conners/DIPNR memo dated 16/3/05, adjusted for 25 hours per week operation) when only licensed for 40 ML on the dredge pond (according to “Independent Assessment – 6102 Singleton Road, Colo Heights June 2007 by C. M. Jewell Associates Pty Ltd at paragraph 2.6 “Water Access Licenses”) as documented to the meeting of stakeholders 18 Sept 2007 at HCC.
Some 75 ML is due to open water evaporation as per “Current Operational Water Balance” in section 4.1.2 “Site Water Balances” in the Jewel report (above).
Some of the bores are not licensed according to Ray Caldwell, Investigating Officer of DWE, and licensing officer McDougall DWE Sydney North Coast.
Council cannot lawfully extend by s.96 an operation which depends on illegal use of water.
4. S. 94 contributions
A. HCC has a report done late 2007 by council officer Robert Stalley evidencing shortfall of $47K (updated to $48K) which BC refuses to pay. This money should be collected through the Class 4 proceedings in L&E Court.
B. Quantity survey to find out how much sand has been extracted from Tinda Creek, for the whole site including extraction out of area.
C. Freeburn Surveyors of Penrith did a quantity survey for BC at the request of Greg Hall showing no payment of s.94 levy on aprox 100K tonnes. Needs an independent investigation again for potential fraud of $50-100K.