The local residents at Peats Ridge, not least Mangrove Mountain District Community Group, and other diverse neighbours, are on the case of Gosford Council as reflected by the council reports shown below. It's all about defending the decision by ex NSW Environment Minister Tim Moore shown in part above, who is now a Commissioner of the Land & Environment Court. First report below is dated 5 February 2008 by council officer recommending approval for Coca Cola Amatil (discreetly represented by their agent David Kettle Consulting) to consolidate a permanent 66 Megalitre p.a. extraction of the drinking water aquifer arguably needed by the local towns. Councillors decided to defer for more information - legal counsel most likely.
Then a week later 12 Feb 2008 after a local backlash the council refused the Coca Cola Amatil so called minor 'modification' of an existing approval under s.96AA of the EP&A Act 1979. From our reading of that section, in a Planning Act which is under major attack now as per feature in the Sydney Morning Herald this weekend, 96AA potentially formalises a cute racket sidelining the community and the planning laws in this way:
Council refuse a development application for breach of the planning rules, often under citizen pressure, to appear to uphold the integrity of the system. Then the developer appeals against council to the L&E Court, and given the court is so risky and expensive for them the community stands by expectantly. Then behind closed doors the developer and council lawyers can agree to draft development consent conditions between themselves. Both then present these "consent conditions" to the Court itself often quite happy to avoid more work by giving a rubber stamp. If 'the parties' in an 'adversarial system' are happy it should be okay thinks Mr Commissioner or Judge. In this way council saves legal fees, developer gets their way with a bit of exta grist for the legal professionals, the court reduces the list and there is no real sanction of past breaches of Environment & Planning laws even for blatant previous unlawful works suggesting punishment not approval. These past sins making life a misery for others all get wrapped up in the court blessed "consent conditions". It's a game of retrospective approval mis-described (in our view) as court approval/consent when it's really barristers for council and developer massaging the way. Even more so if the developer is a political donor high up the food chain such that departmental and council officers know which way the wind is blowing. There isn't any real "no" in this scenario. The only alternative is a "judicial review" type appeal for civil enforcement as per this EDO fact sheet over past breaches where the loser pays easily $40K in costs of both sides. Most including councils don't want to gamble with cashed up developers like that. Money usually wins despite blatant past planning law breaches by developers. It really is that ugly and developers know it. Wolves amongst sheep.
What is unusual in this case is that ex minister in NSW Parliament, and in 2005 Land & Environment Court Commissioner Tim Moore insisted on more than "consent conditions" in the above 2005 case. Rather he went for a rigorous trial of 2 years at the relevant extraction rate of 66ML p.a. to get a real measure of sustainability, or not. CCA appear to have squibbed the rigour of the trial always keeping extraction lower than the full rate at some 35 ML to avoid being flushed out damaging the aquifer at that permanent higher rate and being ruled out of that higher level indefinitely.
All this is coming to a head again with Gosford Council already reportedly preparing "draft consent conditions" in litigation with so called David Kettle Consulting as agent for Coca Cola Amatil.
We will be observing closely and assisting the community interest as much as we are able (with our restricted practising certificate and absent our principal solicitor since last Friday, Alex Tees who is alternatively unwell, unwilling or otherwise engaged. Cie la vie.) Alot of the serious thinking has been done by the community before us, which we do greatly respect, as here by local retiree Peter Campbell interviewed recently on 2GB radio in Sydney.
Previous posts on this topic here:
Objecter seeks to be heard in Coca Cola bottled water case after driest May on record
and hereWednesday, 21 May 2008Coca Cola in Environment Court on 6 June over Mangrove Mtn bottled water extraction