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sydney alternative media - non-profit community independent trustworthy
Friday, 4 July 2008
Coca Cola water bottling at Peats Ridge Springs Case: Decision today in Land Env Court on party joinder
Mood:  chatty
Topic: legal

From the court yesterday:

Sent: Thursday, July 03, 2008 3:08 PM
Subject: David Kettle Consulting/Coca Cola Amatil v Gosford City Council 10429 of 2005

Dear Mr McLoughlin

Her Honour will hand down her decision in this matter tomorrow, Friday 4 July at 4pm. I have left a message on your voicemail and will try your mobile again.


....Associate to the Hon Justice NHM Pain
Land and Environment Court of NSW


In addition here is the rather lengthy list of documents we submitted at the request of the Judge for last Tuesday which we want the Court Appointed Expert based in Melbourne, Mr Anthony Lane, to consider. Mr Lane was nominated by Coca Cola Amatil and agreed by Gosford City Council.

Re: List of documents for Court Appointed Expert Anthony Lane in David Kettle Consulting [agent for Coca Cola Amatil] v Gosford City Council 10429  of 2005, on behalf of public interest objector Neville Diamond.

Dated Tuesday 1st July 2008

Pursuant to request of Justice Pain, at the hearing of 27th of June 2008 please find attached the list of documents we seek to include for consideration of the CAE Lane.

Please do not hesitate to contact the writer on tel. 0410 558838 and by return email.

Yours truly, Tom McLoughlin agent for public interest objector Diamond

A.  2008-9 Determination of the Kulnurra-Mangrove Mountain Water Sharing Plan determination of the Dept of Water & Energy due by July 1st 2008 according to their officer Hemantha De Silva in telephone
communication early June 2008 with agent for Diamond.

B. Director of DOP criteria for the EA inclusion of "The NSW Groundwater Dependent Ecosystems Policy" DLWC 2002, with reference especially to Management Principles at pages 21 -25 found via PDF file here:


B3. Dr Brian Marshall hydro geologist, Groundwater - lifeblood of the environment, A publication of the Blue Mountains Conservation Society April 2005, Dr Marshall was 3 years President and retired academic from University of Technology Sydney.


B4. Article by Dr Brian Marshall - Mangrove Mountain Groundwater Decision, Suck it and see is alive and well (November 2005) for Blue Mountains Conservation Society website.


B5. Mangrove Mountain District Community Group Queries, Comments by Dr Brian Marshall, 5th September 2005.


B6. File note of telephone conversation of agent for Diamond with Dr Marshall dated June 2008, re 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.


B7. DNR Guide to water access licence certificates and searches


C. M Alkhatib and Dr N. P. Merrick, National Centre for Groundwater Management dated 10 November 2006, in Groundwater Simulation and Optimisation Modelling of the Kulnura - Mangrove Mountain Aquifer Systems, Final Report Submitted to Department of Natural Resources and Gosford Wyong Councils Water Authority , where the expert authors say inter alia there is a disjunction with the Water Sharing Plan of then DNR/DWE as follows:
"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."
C1. Questions to be put to the court appointed expert in a letter as drafted by Hydroilex Groundwater Specialists dated 8th April 2006;

C2. Letter of hydrologist Dan McKibbin dated 9 August 2005 for then DIPNR state department referencing the expected Alkhatib & Merrick groundwater study as central to further planning decisions on water extraction in the area.

C3. Parsons Brinkerhoff Report for ERM dated 7 Sept 2004 for CCA for their site at Peats Ridge Springs which includes: 
“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 “
C4.  A report of ERM consultants to CCA/Peats Ridge Springs dated  Sept 2004 which includes 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.”

C5. ERM report for CCA for their Peats Ridge Springs site dated October 2003 which in part speculates about adjacent chicken manure, but omits the outbreak of Newcastle disease causing mass mortality of chickens in the past which potentially affects groundwater in disposal of carcasses:
“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.)
D. Two letters of  legal advice from Donnellan and Co dated 21 October and 15 November 1996 which verify the apparent unlawfulness of this water bottling operation .

D1. Report by Hirst Consulting Services Pty Ltd dated 26 November 1997 on the former owner’s unlawful development of the CCA site.

D2. An expert report of Brink & Associates for then owner of the CCA site, Livio Pace, under cover of letter dated 28 May 1996 indicating dynamic interaction of the bores on the CCA Peats Ridge Springs site and the neighbouring Azzopardi site.

D3.  Letter by email 29 June 2008 of agent for Diamond to Hemantha De Silva officer for DWE Newcastle Office re bulk water extraction consent condition needed at CCA/Peats Ridge Springs under C Moore Trial regime also here Coca Cola Amatil caught out breaching bulk export condition in trial at Peats Ridge Springs?

D4. Letter by email to your honour Justice Pain 30th June 2008 by agent for Diamond re bulk water extraction consent condition needed at CCA/Peats Ridge Springs under C Moore Trial regime.

D5. ERM consultants to Livio Pace, former owner of the site dated 27 Nov 2001 re Water sampling results to date.

E. Letter by email 5 June 2008 of agent for Diamond to Hemantha De Silva officer for DWE Newcastle Office
unsustainable water use in Kulnurra Mangrove Mountain Water Sharing Plan

E1. Minutes of Gosford City Council of notice of motion carried in February 2008 that any legal appeal by CCA against refusal of their s.96AA application on 12 Feb 2008 be immediately notified to community objectors on council file in order to participate in the court case including nomination of CAE;

E2. Letter to NSW Attorney General by McLoughlin as agent for Diamond 27 June 2008 requesting reform of the LEC Act and EP&A Act such that it is mandatory for notice of legal appeals against council refusals to be made to community objectors on council file .

E3. Letter to State Govt ministers by McLoughlin re need for law reform re full EIS for bottled water industry via sch 3, Reg 2000 of EP& A Act 1979 (designated development criteria).

E4. letter from Mawar Aras for Nathan Rees Minister for Water dated 17 June 2008

F.  Secretary Margaret Pontifix from Mangrove Mountain District Community Group Inc re Complaint 6 June 2008 re missing Green Folder of baseline ecological data and photographs of the ecological health of the un named water course on the development site, Green Folder used by C Moore to inform himself in the 2005 litigation

G.  Attachments (content unclear) C and D in the missing Green Folder which have now been located just this weekend late June 2008, post the hearing by Margaret Pontifix as advised to the agent for Diamond 30 June 2008

H. By subpoena if permitted, any DWE/DIPNR/DNR assessment on the cumulative effect of water extraction at  Peats Ridge Springs combined with the water use/extraction of the 40 quarries in the Mangrove Mountain area, (compared to 300Ml/YR x 2 for 2 sand quarries in Maroota);

I. Any relevant expert material in the Gosford City Council (GCC) file that might be obtained by subpoena if permitted;
J. GCC LEP 381 under IDO 122 which in the words of NSW Agriculture Dept 'seeks to squeeze the bottled water extraction not increase it' at Mangrove Mountain.

J1. Both Gosford CC  report of 12 Feb 2008 reversing recommendation of GCC one week earlier in its report of 5th February 2008 to refuse the CCA s.96AA application, which inter alia refers to the joint GCC-Wyong Council Water Authority's adamant position to oppose the CCA extraction in their report on the CCA 2003 DA for 66ML.

"Councils Strategic Water & Sewer Engineer advises: -
"W & S Planning Section recommends that the proposed development, that includes a prosposed expansion of groundwater extraction from 25 ML/yr to 66 ML/yr, be refused at this time.
The developer could consider making a new application ... [later after review of the Kulnura Mangrove Mountain Water Sharing Plan]
Under the current Water Sharing Plan, the proposed 41 ML/yr expansion of groundwater extraction would result in a 41 ML/yr reduction in the extraction of groundwater-derived flows from Mooney Dam Storage for water supply usage (by the Joint Water Authority). Note that Mooney Dam inflows are derived from a combination of groundwater and surface water flows.
The current Water Sharing Plan only allows 2560 ML/yr of groundwater to be utilised for other-than-environmental uses in Mooney Mooney and Mullet Creek- Zone 8. The current Water Sharing Plan shows that 445 ML/yr is committed to Basic Landholder rights and 694 Ml/yr to existing water licences, leaving a balance of only 1421 ML/yr for all other groundwater allocations, including water supply. Water supply demand on Mooney Dam Storage has averaged more than 5000ML/yr over the last 10 years, and was a maximum of 8289 ML/yr in 2002. It is expected that the Joint Water Authority would need all of the remaining 1421 Ml/yr groundwater allocation in Zone 8 for water supply use at Mooney Dam. .....
W& S Asset Planning Section recommends that the proposed development be refused at this time.
[At page 10]
K. Letter from NSW Agriculture dated 4 December 2003 regarding bottled water a non conforming use at Peats Ridge Springs that is to be squeezed, not expanded.

K1. General Terms of Approval and C Moore conditions of 2005 for the trial regime including clause 1.5 of the water licence General Terms of Approval to the developer by DIPNR [now DWE] attached to their letter 28th January 2005 for this development site. The condition 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 purposes."


K2. Extract of CCA website as of 4/6/08 refers to (bold added) similarly suggests no bulk exporting from Peats Ridge

CCA bottling operations

NSW         Peats Ridge Springs, Peats Ridge (water bottling only)

                  Smithfield plant, Sydney

                  Northmead plant Sydney 

at http://www.ccamatil.com.au/bottledwater.asp

K3. Article by Vice President, Central Coast Farmers Association, Ross Hitchcock is reported in the Mangrove Mountain and District Community News  6th June 2008 as saying:

"*The Merric [sic, Merrick] ground water report has not been included into the plateau water plans.... It is possible this government is making collusive water allocations schemes as opposed to collaborative water sharing plans."

L. Quality press reportage of surrounding context of driest month of May 2008 ever recorded and other public policy concerns over emerging climate variability:

- 7 June 2008 by expert rural affairs writer Asa Wahlquist Dry future well ahead of schedule | The Australian

- 17 June 2008 quoting expert the CSIRO Dr Tom Hatton AM - Groundwater use more trouble for rivers

- 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.


L1. Public interest articles on Sydney Alternative Media website 27,000 pageviews per month readership namely:

27 June 2008
27 June 2008 Coca Cola water bottling case: Community Objector submissions to Justice Pain today 3 pm
24 June 2008 Does Coca Cola bottled water at Peats Ridge have a chook poo contamination problem in the future?

- 24 June 2008 Coca Cola's nominated, and court appointed expert 'blinks' twice on report deadline?


- 3 June 2008 Green Folder goes missing as Coca Cola kill Peats Ridge creek?
Mood:  incredulous
Topic: legal


- 1 June 2008 Coca Cola Amatil bottled water legals: Ratepayers force reversal by Gosford Council so far


- 1 June 2008 Objecter seeks to be heard in Coca Cola bottled water case after driest May on record


21 May 2008 Coca Cola in Environment Court on 6 June over Mangrove Mtn bottled water extraction


- CSIRO media release 19 June 2008 Ocean warming on the rise (Media Release)


M.  River Post March 1996 by Hawkesbury Nepean Catchment Management Trust includes Maroota Groundwater Study springs into action

N. Vicki McBride email to Brian Graham CC Dan McKibbin, Hemantha Desilva, Mark Mignanelli dated 3/8/2005 re Water Sharing Plan for Mangrove Mountain disjunction of approach by Sydney North Coast and Sydney South Coast officers of then DIPNR.

N1. Hemantha Desilva, Senior Natural Resources Officer, DIPNR Hunter Region 28/4/05 "For decision concerns regarding water alocation for Coca Cola Amatil"

N2 Letter Minister Macdonald Natural Resources, Primary Industry, Mineral Resources to Arthur Chesterfield Evans MLC dated 22 Nov 2005 re "sourcing of non renewable resources in the Mangrove Mountain area"

N3 John Williams Regional Hydrologist 15 March 2000, officer for Land & Water Conservation Dept to Mr John Murray Gosford re Water Bottling Plant Euloo Rd, Peats Ridge

O1. Internal Audit Bureau report for now Dept of Water & Energy into assessment of Mangrove Mountain/Peats Ridge Springs water licenses for Coca Cola Amatil by their government department (Sydney South Coast section, since re allocated to their Newcastle Branch office).

O2. External auditor Internal Audit Bureau report into Gosford City Council assessment of impact on the aquifer of the CCA application for 66 ML/YR water extraction.

P. Handwritten/typed up notes of Community meetings  involving Mangrove Mountain District Community Group re concern they are losing their water springs from the early 1990ies.

Q. Letter DIPNR to R L & M J Pontifix 17 Sept 2005 refusing increase in water extraction from 10 to 24 ML per year.

R. Letter R L & M J Pontifix to DIPNR dated 31-8-05  requesting an increase in water allocation from 10 to 24 ML/YR.

S. Wayne Connors DIPNR memo Dec 2003 re unnamed water course on CCA site.

S1. Wayne Conners Dept of Conservation & Land Management 20 Feb 1996 to Livio Pace re Clean Waters Act and Rivers and Foreshores Improvement Act 40 metre buffer protection zone.

T. DIPNR website printout 17/7/2005 'Water Management in NSW' - 'Conversion of water licences'

U. DIPNR Water Management in NSW website printout 2/10/2005, Frequently Asked Questions

V. DIPNR - New Water Arrangements Explained  - 1 page document

W. Dept of Water & Energy - Kulnurra Mangrove Mountain Water Sharing Plan and associated govt dept documents explaining the WSP gazetted 7 Feb 2003 as amended 1 July 2004.

X. Map of the CCA site adjacent to the Azzopardi site at Peats Ridge.

Y. The affidavit of Neville Diamond sworn 13 June 2008 in support of his application for joinder in these proceedings.

Z. The submissions on joinder of Neville Diamond by his agent McLoughlin filed 25 June 2008;

Z1. Draft short minutes of order filed 25 June 2008 in these proceedings which mention CAE Lane.

Z2. The affidavit of Alec Wagstaff for CCA sworn in related proceedings 10429 of 2005 (The Trigger case) dated 27 Feb 2006 regarding unmet demand for water in the bottling operation.

In additon we submit this list of documents, the list provided to us 29 June 2008 by Margaret Pontifix as secretary of the Mangrove Mountain District Community Group, and Jane Azzopardi neighbouring local landholder and objector party litigant in the 2005 and 2006 cases in the related proceedings in the LEC of 10429 of 2005.

In additon we submit this list of documents, the list provided to us 29 June 2008 by Margaret Pontifix as secretary of the Mangrove Mountain District Community Group, and Jane Azzopardi neighbouring local landholder and objector party litigant in the 2005 and 2006 cases in the related proceedings in the LEC of 10429 of 2005.

To clarify item 3 of their list which we adopt: Margaret Pontifix is a retired local school teacher in agriculture and biology, and local authority figure and champion of Mangrove Mountain District Community Group Inc. "I'm not a greenie" she states firmly "but I am a conservationist. It's just terrible what's happened to the environment there." Here is Margaret talking to Jonathan Harley of 7.30 Report in 2005.
Dear Tom
1.  Coca-Cola on site meeting notes on 10/4/06, written by M. Pontifex. A. Lane present to familiarise so he can Peer
     Report Beck.
2.  Local tops maps marked by M. Pontifex over 30 years period to record decline in umbrella fern volumes in local
     creeks up till 1992.
3.  Jonathan Harley did a film on Peats Ridge ground spring water, 19/9/05 - 7.30 report, have video.
4.  Book re world problems of bottled water extraction by Anita Ruddock, "4 troubled water".Book above issues by John
     Mercer, "Twenty Thirst Centuary".
5.  Ground H20 Simulation and optimisation Modelling by Alkhatib and Merrick, Conclusion.
6.  Letter re ground water extraction volumes from James Thompson [Dooralong] 16/4/05.
7.  Letter, Why does'nt my creek run now, letter from Ian Johnstone, Wyong creek, 2/9/05.
8.  Photos and notes, Jamie Maloney 10/05, where is father's spring fed creek gone.
9.  Presentation from John Madsen from Mangrove Mountain District Community Group [ MMDCG] for court, 26, 27/9/05
    RE Peats Ridge Springs/Coca-Cola. Commissioner Moore requested copy rather than verbal.
10.  Have letters to Tim Moore 16/2/06, returned unopened with notes - didn't realise can't tell him details of bores etc.
      after that case closed, "Our Court??".
11. My statement to court 19/8/05 - where I mentioned Subsidence details told to us at ground water meetings by
     DLW in 1996.
12.  Article from Land News 18/8/05, Calga v Coca-Cola.
13.  Eleven page article in " Land Naws " 7/12/06, "Sydney food bowl under threat".
14.  Notes from "Nature conservation Council of NSW Workshop, 24/5/06, also issued notes - groundwater.
15.  Kulnura Mangrove Mountain Sandstone aquifer drilling report, 6/9/02. DL & H20, resource analysis unit
      Hunter region.
16.  Impact of five quaries on ground water of plataue region of Central Coast Plataue 20/9/05, by Community
      Environment Network.
17.  Document and letter from John Asquith- Community Environment Network, 11/4/06  re ground water extraction on
18.  Brian Marshall's two comments and his booklet "Life Blood of environment".
19.  MMDCG letter 11/1/06  "Sand Water and future of Central Coast".
20.  MMDCG letter 13/8/01 - Ground Water, by MMDCG representative, Ross Hitchcock.
21.  Several media clips re ground water 05, "Myth of Sydney drought proof" etc.
22.  Water Resources  - Review of ground water use and water level behaviour in Mangrove Mountain area, October 1994
      by S. Bish, D. Salotti, R. M. Williams , hydrology unit.
23.  Complete file of local councils Water Authority, 20 - 50 committee, commenced 8/9/04.
24.  R. & M. Pontifex request from DLW for small increase in volume 8/2/02 and responses till 2005.
25.  MMDCG Secretary notes of hearing on 26, 27/9/05
26.  Notes of public meeting with Coca-Cola at Peats Ridge School , March, unsure of year, [05 or 06].
27.  Copies of attachments C & D from green folder.
28.  Many letters from donnellan/maps, charts, etc. for M. Pontifex to present to court [off record from ..... people.]
29.  Copies of petitions re over use of ground water locally.
30.  M. Pontifex on the rural lands study steering committee, has all notes/presentations.
31.  Have many years results of stream watch.
32.  Strategic plan for sustainable agriculture , Dept. of Agriculture, 11/5/98

Posted by editor at 9:33 AM NZT
Updated: Friday, 4 July 2008 9:56 AM NZT

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