This is the 5th part of the serialised Diamond Diary quoting the 60 year old activist's sworn affidavit in proceedings in the NSW Land & Environment Court 40733 of 2008. His case Diamond v Birdon Contrcting Pty Ltd & Anor was lost recently on technical grounds such that the substantive issues of illegal environmental vandalism have not been tested. He consents to his affidavit being reproduced here.
There are some deletions as marked based on legal considerations. Diamond's main grievance has been damage to Tinda Ck which crosses the Old Putty Rd aka Singleton Rd. The private land is sandwiched between Wollemi and Yengo National Parks which are both World Heritage listed and listed wilderness areas under the Wilderness Act 1987 (NSW).
In June 2007 a hydrological expert Chris Jewell working for Hawkesbury Council reported that the watercourse into the world heritage area has been cut by 37% and this will increase to 53% if the sandmine is expanded.
Neville Diamond's story continues:
Attempt by Birdon/staff to smear me over their illegal works on crown land intercepting
Tinda Creek headwaters, s.94 contributions refund proposal
52. By way of request to admit facts Birdon wrote 10 September 2008 and we responded as follows:
1.That during his ownership of Lot DP a diversion channel was constructed along the northern boundary of such without any approvals to divert the northern arm of Tinda Creek into a dam that was built on Lot which was also constructed without any approvals.
Point 1, no DP number included. But to anticipate, during Diamond's ownership of Lot 1 a dam was built by a contractor working for Stout/Poyneed in about 1984 with Diamond's permission. This was lawful - for instance RFIA legislation didn't apply until amended in 1992. Then the west to east, northern diversion channel was built just north and parallel of the boundary of Lot 1 on crown land by Mr xxxxxxxxxx working for Stout/Poyneed and/or possibly Birdon around 1988-89 in Diamond's absence when he was living in Londonderry. Diamond had nothing to do with this channel.
2.That the diversion channel and the dam restricted the flow of Tinda Creek.
Point 2. Diamond is not an expert on this but his view is that the diversion channels could not effectively restrict the flow of Tinda Creek because the hydrology of the valley there is like a sponge as set out in Paul Bourne's/DLWC officer's memo of around 1995. And as set out in the 1984 and 1996 EIS. In other words the land is all permeable and channels and dams don't hold water unless they are clay lined. The connecting diversion channel diagonally across Lot 1 connecting the dam to the northern interceptor channel to drain excess water threatening the sandmine was built soon after around 1989. It was built by xxxxxxxxx again for Stout/Poyneed/Birdon with the knowledge of Diamond under duress from the sandminers.
3.That he approached me with a proposal for Birdon to be able to claim a refund of all of the section 94 contributions it had paid to Council for its operation of Tinda Creek upon condition that he received 50% of any monies recovered.
Point 3. It is admitted that in about 2006/7 Diamond provided advice about potential refund of s.94 contributions (estimated at around $200-300K) on the basis council had breached the s.94 plan by not handing it over to the RTA ever since the 1989 Donges v BHSC decision in the LEC required them to. There was an additional precedent case about handing back s.94 contributions not applied to their purpose under the relevant plan [Engadine Area Traffic Action Group Inc v Sutherland Shire Council no. 2 (2004)]. And that Diamond sought commercial benefit for the advice by way of negotiation to set off the compensation he continues to claim against Stout/Poyneed and their business partner and successor Birdon, for instance the stolen assets of $88,500.
A further basis for seeking the refund was [to persuade] Birdon they had a lapsed consent since 1999 and payments since then were misconceived. Such a concession would involve instituting a new EIS [by Birdon] and bringing about rehabilitation of Tinda Creek with modern management approach.
Legal tests regarding security for costs
– professional approach to the pleadings in Amended Application in Class 4
56. I was in the middle of the Coca Cola water bottling case as public interest intervenor with help from my court agent and the EDO when the HCC released their final report on the Tinda Creek s.96 moodification for a meeting of 29 July 2008. As said above Liberal councillors and on past voting behaviour were going to vote for approval against the advice of their staff for refusal. So in short time I drafted an application in class 4 with my agent and put together a substantial affidavit – running out of time to number the pages for the evidence, and filed and served it just hours before the council meeting.
57. The original application has two sections with
· paragraphs 1-5 seeking declarations regarding breach of the planning laws - lapsed consent with consequences of that, and
· paragraphs 6 to 13 seeking declarations for a logical and practical method of rehabilitation for Tinda Creek at the expense of the sandminer over 2 years and 9 months.
Part of the supporting evidence was Council’s own report of 29 July 08 agreeing with the EDO and no doubt their own legal advice that consent had lapsed.
58. My agent faxed the stamped Application to Council the afternoon of 29 July 2008 and Full Council deferred the whole matter pending my case. As I understand it this ws their own legal advice, though they could have voted to refuse the DA according to council officer’s recommendation.
59. In preparing my evidence on the interlocutory security for costs hearing of 21st October 2008 I have organised with help from my agent other compelling evidence of unlawful activity by Birdon such that I have drafted an Amended Application with help of my agent and EDO seeking new declarations from paragraphs 16 to 25 regarding
· para 16 – out of approved area
· para 17 and 18 - lack of Crown consent as part owner for the Das
· para 19 – breach of clause 283 of the EP& A Regulation 2000 for false and misleading statements regarding misleading plan submitted with s.96 modification DA
· para 20 – legal question for testing by the court as to whether a s.96 modification can justify a new EIS as designated development
· para 21 – failure to implement “a series of monitoring bores” in the 1995 EIS plan, at page 23, supported by expert reports Ecowise (2005) and Jewell (2007)
· para 22 – failure to obtain a water license sufficient to cover the volume of water use for the sandmine.
· para 23 – failure to submit water use figures to DWE under the water licenses
· para 24 – failure to submit annual compliance reports under under consent condition A.33.
· para 25 – failure to obtain various permits for clearing of trees in “proposed stage 2a”
60. With the help of my court agent and the EDO I am now proposing to particularise the declarations sought according to usual court process in the next week. This is regardless of whether I win or lose the security for costs hearing because I know the community and green movement will be able to use these documents in a new litigation which likely will have someone like Peter Waite OAM, or combined green and community groups, willing to initiate new proceedings against Birdon to see the WHA.
Cronulla Precinct Committee Incorporated v Sutherland Shire Council
by Pearlman J, unreported 29 July 1998:
To avoid a security for costs order Pearlman J referred to various factors which constitute “special circumstances” beyond public interest:
- proceedings involve no private gain – yes in our case
- contribute to the proper understanding of the law – yes regarding false use of s.96 modification for a designated development
- the basis of the challenge is arguable – yes given all the supporting evidence against Birdon from both experts and local and state government documentation and circumstances of the case
- the purpose is clearly to protect the environment – yes the adjacent WHA includes Tinda Ck
- Cable Investments Pty Ltd v Meltglow Pty Ltd (1995),
- Cable Investments Pty Ltd v Meltglow Pty Ltd (1995),
61. The tests in Cable are addressed as follows following the summary of Lloyd J in Diamond v Birdon & Anor (2007) judgement 40900 of 2006:
(1) application for security by Birdon is brought promptly
(2) the strength and bone fides of the case in which security is sought:
Yes, the HCC officer’s report agrees the consent has lapsed, as does the EDO written advice that the consent has lapsed, the voluminous material to show Birdon are operating illegally (outlined further below) and have done so for a long time and the declarations/orders sought are justified. There is very substantial public interest for the welfare of a World Heritage Area demonstrated. The WHA is at some risk of dangerous climate change threats as per expert CSIRO evidence raising the precautionary principle. See further below regarding the strength of this case under a separate heading.
(3) whether impecuniosity of the applicant results from the respondent’s conduct, the subject of the claim
Yes in part as pleaded above from menaces and intimidation destroying a property management asset at Tinda Creek. And from theft of substantial assets by staff of Birdon. And from gross intimidation rendering the Applicant a pensioner suffering from stress.
(4) Whether security for costs is oppressive by denying an impecunious citizen or organisation a right to litigate
Yes because the Applicant has a special interest as a former neighbouring land holder whose property rights and quiet enjoyment have been adversely affected such that
(5) Whether there are other persons behind me likely to benefit to provide security
There is no other person likely to benefit except the general public interest. The court agent is acting pro bono. The community groups are only interested in protecting the waterway and the WHA.
(6) Any person willing to undertake a security for costs for the plaintiff
Not in the current circumstances of another threshold issue outstanding regarding estoppel of the previous consent orders.is resolved in the Applicant’s favour.
(7) “Whether the applicant for security is in substance the plaintiff or the proceedings are defensive in nature”
The applicant for security is being highly defensive to avoid legal accountability regarding illegal sandmining operation.
- strong evidence for the declaratory orders sought in the Amended Application
62. This section of my Affidavit of Evidence in Reply amounts to a first draft of the points of claim to support the declaratory orders sought in the Amended Application filed and served the same day. Following the order of the Amended Application:
1. A declaration that the consent for development application 134/95 (the “DA 134/95”) granted by Second Respondent to the First Respondent retrospectively formalising the existing sandmining at Lot 2 of the property described in Schedule 1 at Tinda Creek (the “Property”), operating from 1991 to 1996 without consent, has lapsed.
(a) Letter General Manager HCC to Birdon dated 15 January 1996 showing unlawful operation ‘for several years’
(b) Memo dated 29 Dec 1995 by Paul Bourne DLWC to file CC Mr Radcliffe Legal Branch, “An unauthorised extractive industry is currently operating at the site”;
(c) Letter of consent dated 23 December 1996 – found at annexure 1 pp 7-11 of the bundle (numbered from first page) of the affidavit of Neville Diamond filed and served 29 July 2008 (“First Diamond Affidavit”).
(d) Council’s chief planner Owens by report to full council 29 July 2008 at pages 64 and 65, and recommendation to cease operations on page 70 regarding mandatory consent condition 4. Refer annexure 20.
(e) Consent condition A. 4 reads
· “Details of [erosion and sedimentation control devices] shall be submitted and approved by Department of Land and Water Conservation prior to any works commencing”.
There is no DLWC approval.
(f) Evidence of no DLWC approval obtained under consent condition 4
1. Letter Marwan El Chamy for DWE 17 Sept 2007 to GM/Greg Hall/HCC, copy at p49 of the First Diamond Affidavit
2. EDO letter of advice to Diamond dated 27 Sept 2006
3. Letter dated 26 June 2007 by Greg Hall Town Planning Co-Ordinator HCC to Birdon Contracting Pty Ltd: “Council has now received correspondence from the Department of Water and Energy …in respect to condition 4 and this has been referred to Council’s Solicitors for comment and advice.”
(g) Evidence suggestive of dishonest claims of DWLC/DWE approval under consent condition 4
1. Letter of 3 March 2008 Marwan El-Chamy Manager Licensing, South for DWE to General Manager of Hawkesbury City Council: “the Department reiterates the advice contained in its letter of 17 September 2007. / Notwithstanding claims made by Mr Bruce in his declaration, the Department is unable to locate any documentary evidence to support Mr Bruce’s claims. / Discussions with staff involved in the Tinda Creek matter at the time in question have also failed to substantiate Mr Bruce’s claim of a verbal approval by a Departmental Officer”.
2. Letter dated 6 June 1996 by (Birdon consultant) Port Stephens Design Services to HCC re documentation for sandmine DA including detailed drawings sedimentation control, stockpile protection, diversion drain, nth creek stabilisation etc’
3. Letter 15 July 1996 Marwan El-Chamy DLWC [DWE] to GM-HCC re ‘design sediment basin’
4. Letter dated 22 April 1997 John Pye HCC Development Control Officer to Tom Bruce-Birdon to address “Sedimentation control devices to be installed within the drainage channels …..”
5. Pye to Bruce dated 30 June 1997 – ‘address environmental management plan ....erosion and sediment controls
6. Pye to Bruce 21 August 1997 re letter of 7 July 1997 – ‘environmental management plan is insufficient ....should demonstrate sound environmental practice during establishment operation and rehabilitation and end use …. s.94 contributions not paid 3 months’
7. Letter Bruce to Pye 22 Jan 1998 ‘we believe our environmental plan of 7.7.97 cover this’
8. Letter dated 15 Dec 1998 Birdon to Pye-HCC “Erosion & sedimentation control devices were installed and are maintained. Dept of Land & Water Conservation approved system designed and council has approved devices installed”
9. Letter dated 1 May 2002 Birdon to Pye-HCC “Erosion & sedimentation control devices were installed and are maintained. Dept of Land & Water Conservation approved system designed and council has approved devices installed”
10. Evidence Tinda Creek at or near the sandmine site fall under the jurisdiction of the River & Foreshores Act 1948, and therefore required permits under Pt 3A to disrupt the creek which in the normal course would require documentation of the type in approved “Erosion and sedimentation controls” under consent condition A.4. The failure to obtain such permits is highly suggestive of avoidance of an approved details under consent condition 4
11. Memo 3 January 1996 by Paul Bourne of DLWC “Subject: Tinda Creek sand extraction EIS …..The status of Tinda Creek at the site has been reviewed, and the Creek is now regarded as a “river” for the purposes of the Rivers & Foreshores Improvement Act 1948 (refer p7 of the EIS)”
12. Undated memo DLWC re inspection “12 December, 1995 …..obvious that Tinda Creek (under the Water Act definition) starts to develop definition and stream characteristics immediately downstream of the sand extraction operations”
13. Memo 29 Dec 1995 DLWC copy to Mr Outhet Riverine Corridor Unit “I agree that the site is part of a lake and is also within 40m of a river under the RFI Act (due to the presence of the “existing” diversion channel as shown on the plans) David Outhet Senior River Scientist 29.12.95.
14. Memo W. Conners 25 jan 1996 “regulation of the site be carried out under the Rivers & Foreshores Act”
Some of these documentary materials not in the First Diamond Affidavit are at annexure 31.
Previous posts in this series are here:
25 October 2008 Diamond Diary Part 3: Getting to grips with the costs regime in the NSW Land & Environment Court, Mood: not sure, Topic: legal
16 October 2008 Hawkesbury City Council public duty to protect their World Heritage park in court Friday 9.30am Mood: blue Topic: legal
6 October 2008 Google Earth reveals illegal drain intercepting Tinda Creek to World Heritage area? Mood: sharp