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sydney alternative media - non-profit community independent trustworthy
Tuesday, 21 October 2008
World heritage vandal gets technical win in Land & Environment Court ...for now
Mood:  accident prone
Topic: legal

Sent: Tuesday, October 21, 2008 3:04 PM
Subject: Temporary setback to protect Tinda Ck world heritage Blue Mtns in LEC class 4 dismissal today

Dear Pike Pike & Fenwick/Andrew & Hawkesbury City Council GM/Peter

As categorical as Lloyd J's decision was this morning to dismiss public interest litigant Mr Diamond's class 4 proceedings against sandminer Birdon Pty Ltd - on the fatal technical objection to his status as a litigant namely previous unpaid costs order to Birdon, and current bankruptcy status - some things to note:
1. Our environmental supporter Peter Waite OAM, JP was in court for our case today in support of applicant Diamond, and has reaffirmed with me by telephone this afternoon he is still willing to help finance a security for legal costs for a future case against Birdon up to $10,000. Mr Waite will support another public interest litigant to bring to account Birdon's vandalism of the World Heritage Blue Mtns listed Tinda Ck area.
The substantive breaches of the Environmental Planning & Assessment Act 1979 are still to be tested in a robust way.
Mr Waite was carrying with him an 80 page advice from Tim Robertson SC regarding another woeful quarry situation in the Hornsby LGA which he has obtained at his own expense.

2. This development is now returned to the decision making role of HCC as consent authority. You still have the formal advice of your chief planner Matt Owens of 29 July 2008, as well as presumably legal advice of PPF, and certainly EDO advice, that the s.96 'modification' application by Birdon cannot proceed as consent has lapsed. In other words the mine has been operating illegally arguably for 9 years already. It has also comprehensively failed to follow the rehabilitation, reporting and staging conditions of consent. We refer also to the damning letter from DWE attached dated 3 March 2008 repudiating managing director of Birdon, Mr Tom Bruce regarding compliance with consent condition 4. You also have the warnings from your own  independent expert hydrologist Chris Jewell regarding water loss from expanded lake 17 to 22 ha in size.

3. This writer in all the circumstances will be watching HCC's decision making with great interest and can commit to a class 4 proceedings in my own name, not hampered by financial debts or bankruptcy. Now that we have completed the training run with Neville Diamond as the public interest applicant we have all our evidence collated and ready to marshall for the main legal contest.

4. Mr Diamond was specifically not declared a vexatious litigant in relation to Tinda Ck by Lloyd J with the implication that arguably if he can overcome his bankruptcy and outstanding $30K debt to Birdon for the previous case, he could conceivably join a future legal action.

5. Your client Hawkesbury City Council are on record stating HCC is willing to mediate a class 4 claim regarding Birdon's lapsed consent as per advice of PPF, and general manager Jackson. Further that you neither support nor oppose Birdon's highly defensive security for legal costs tactic.

6. I have a tentative offer of pro bono help from a respected barrister in the LEC jurisdiction as of yesterday. The EDO will likely be available to run my case for me also.

7. We have the ongoing public interest of reference providers The Wilderness Society, Colong Foundation for Wilderness, Hawkesbury Council Watch and also expressions of concern by NSW National Parks Association and Blue Mountains Conservation Society. Other public stakeholders will also be interested to support a challenge to Birdon's vandalism of the Tinda Ck area as they did against Mushroom Composters Pty Ltd in 1995.

8. The ongoing damage to the World Heritage listed Tinda Ck area of the Blue Mountains is not a trivial concern and given the party political tensions from local to state to federal level we feel that it won't take very much for the federal government minister Peter Garrett to take an interest in the destruction of part of the iconic Blue Mtns listed area in your LGA.
Please do not hesitate to contact the writer on tel. 02-9558 9551 or 0410 558838 or by return email.

Yours truly

Tom McLoughlin, court agent for Neville Diamond.

CC public interest stakeholders
Sent: Monday, October 20, 2008 5:22 PM
Subject: Diamond v Birdon & Hawkesbury Council

Dear Mr O’Loughlin,

We have been informed that Mr Diamond contacted Council following our earlier email message to you of today. 

Although we do not know exactly what was said, it appears as though Mr Diamond may believe that Council is opposed to a mediation.

We do not wish there to be any confusion as to Council’s position in these proceedings tomorrow or later.

Council’s position in relation to Birdon’s Notice of Motion tomorrow is to neither consent nor oppose the orders so sought against Mr Diamond.

If the proceedings are not struck out or permanently stayed and are to proceed, Council will consent to a mediation providing that all parties are brought to the table.

It is a matter for the Court whether to require Birdon to attend mediation under s.26 of the CPA.


Andrew Simpson

[solicitor Pike Pike & Fenwick for Hawkesbury City Council, cc Peter Jackson General Manager HCC]



Previous posts on this issue are here:

16 October 2008 Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am
Mood:  blue
Topic: legal

Friday, 10 October 2008

Posted by editor at 4:38 PM NZT
Updated: Wednesday, 22 October 2008 1:19 PM NZT

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