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sydney alternative media - non-profit community independent trustworthy
Friday, 6 March 2009
Submission to NSW Govt/DECC lawyer Gordon Plath on fine silt deathtrap in the Blue Mtns WHA, Hawkesbury LGA
Topic: legal

Beware the 3 or 4 letter acronym. DECC in the headline stands for Dept of Environment and Climate Change. WHA is for World Heritage Area. LGA is Local Govt Area.

Plath whom we know of from our student days at ANU law school is manager of environmental litigation at DECC these days and good luck to him for that too.

Below is our letter regarding an appeal in the Land & Environment Court of NSW by Birdon Contracting Pty Ltd/Tom Bruce as managing Director represented by solicitor Russel Byrnes (also doing the Balmain harbour boat tragedy case) based in Surry Hills. Veteran environmental lawyer Stephen Griffiths of Pike Pike & Fenwick is representing Hawkesbury City Council. We are agent as per the LEC rules for objector Neville Diamond.

The case is set down for 16-18 March 2009. The area in question is shown above in the lower half image of 2005 as per a HCC flyover. The top image is the 'before' image from the early 1980ies. What has changed is an open farmland area with the rising of Tinda Creek in the far background converted to wet open cut sandmine.

This has cut 37% water flow to Tinda Creek and likely to cut 53% if it continues according to council's independent expert Chris Jewell, hydrologist. The World Heritage Area of Wollemi National Park is the neighbour having it's water strangled, along with other cowered neighbours of the sandminer. No wonder various groups including big conservative National Parks Association have bought into the issue here:

From: Andrew Cox NPA
To: ecology action australia
Cc: Zoe Palmer ; Keith Muir ; Alan Catford (PMC)
Sent: Thursday, March 05, 2009 6:58 PM
Subject: Concern over Tinda Creek Sand Mine

Dear Tom,

National Parks Association is a community-based conservation groups establish in 1957 and seeks to protect our natural areas.

We support your efforts and the efforts of Neville Diamond to prevent the continued operations of the sandmine at Tinda Park adjacent to the World Heritage listed Wollemi National Park.

For over a decade now, concerns have been raised about the suitability of the site and the likely impacts on the national park and its catchments. Their apparent illegal operations confirm our fears about the mine.

We are opposed to the continuation of the mine due to its detrimental impact on the water table and the runoff from discharges from the site into Wollemi National Park.

Please note that I will be on leave from Monday 9 March for five weeks. After that time, please contact Zoe Palmer, who will be acting in my position.

Kind regards

Andrew Cox,
Executive Officer
National Parks Association of NSW
PO Box 337, Newtown NSW 2042; Tel: 02 9299 0000; Fax: 02 9290 2525
Email: execofficer@
Website: www.npansw.org.au

'protecting nature through community action'

Here is the letter to DECC's legal man Gordon Plath:

From: ecology action australia
To: gordon.plath@environment.nsw.gov.au
Cc: Keith Muir ; bmcs@ ; Andrew Cox NPA ; Peter Cooper ; Kirsty Ruddock ; sgriffiths@ppf
Sent: Monday, March 02, 2009 7:08 PM
Subject: update on legal appeal re Birdon Tinda Ck sandmine
Dear Mr Plath/Gordon, managing solicitor DECC NSW,
CC Stephen Griffiths Pike Pike & Fenwick for Hawkesbury City Council
Birdon Contracting Pty Ltd (Tom Bruce managing director) v Hawkesbury City Council 16-18 March 2009 in the LEC, re Tinda Creek sand mine impacting Blue Mountains World Heritage Area
I write as agent for Neville Diamond as per the LEC Act 1979.
As suggested late last year in the email attached below dated 10 November 2008 the Hawkesbury Council did vote 12 to 0 against approving the s.96 variation for the Birdon Contracting P/L sandmine on the grounds of lapsed consent and therefore out of jurisdiction to extend the life of the mine in this way.
My pro bono client Neville Diamond suggests the consent had already lapsed for similar reasons on the previous occasion of a 2004 s.96 variation approved by a previous manifestation of the council. Now council newly constituted following the election of Sept 2008, and since 2004 now with a new
- general manager
- director of planning and
- mayor
have agreed with my client's legal argument of lapsed consent.
The HCC refusal decision has been appealed by Birdon/Tom Bruce as sandminer and goes to the LEC on March 16-18, 2009.
Though not strictly on the issues of the case re lapsed consent decision, there are two broader public interest issues for DECC's, and perhaps court's, consideration and indeed raised by us in verbal submissions before the council vote, namely safety and water supply to the World Heritage Area:
1. The fine silt tailings are a public liability quick-sand death trap and contrary to the staging plans approved by council way back in 1996 where the silt fines were meant to be 14 to 20 metres below the pond surface in the lake final landform. The developer prefered not to pay for crown consent license for depth 15.24m to 20 metres and dumped silt fines closer to the surface.
These silt fines are now situated from 1m to 5 below the surface water down to 14 metres depth according to the developers own verbal admissions to council in 2004 and 2008. This depth will be easily accessed by children, adults or wildlife with no safety fences anywhere in the final approved lake landform.
We estimate the silt fines cover an area of 400m by 200m (80,000 m2). The tonnage of silt fines we estimate at 376,000 tonnes (based on a 65:35 sand exported to silt fines ratio, with 700K tonnes sold since 1996 consent).
No doubt the council are aware any expansion of the sandmine hole/'lake' final landform makes the situation ever more dangerous (as well as compound damage to water flow in the Tinda Ck World Heritage area). This safety problem is not going away for people or wildlife.

We see options for a return to a safe sand mine operation as follows:

(a) In the short term exclusion fencing of the unsafe ponds;
(b) longer term
(i) The silt fines in this incorrect location would cost $millions to relocate safely to the DA approved greater depth, and there is no Crown consent from 15.24 to 20m depth anyway. This was the original plan for final land form with lake. The high cost relates to the highly viscous quality of the silt fines - hard to lift, hard to carry, hard to dump. There is next to no chance of this option being implemented; or
(ii) Capping the silt fines with at least 2 metres of surface compacted solid fill as has happened successfully with sandminers PF Formations at Maroota lot 198, and similarly Dixons at lot 196.
Unlike Maroota mining sites that are ridge lines where silt fines eventually dry out over years here at Tinda Ck the whole quarry is sited in wetland. If, and only if, a 2 metre cap albeit under water has efficacy starting from dry surface sloping to say 3 metres under water, we estimate 400m x 200m x 2m depth making 160,000 m3 of clean fill needed to quarrantine the dangerous fines for anyone swimming or entering the lake final landform. This would have to come from existing cleared adjacent private land of the developer.
The cost of this would be $500K to $1M plus at current prices for truck, loader, dozer, dredge barge, labour prices. This approach delivers a safe final landform of a lake as intended.
(iii) capping and filling in total the hole(s) with silt fines up to dry ground level final landform - which also benefits the re-establishment of the flow in Tinda Creek by removing a major source of evaporation of concern to the DECC: Kieran Horkan, Unit Head Sydney Industry letter to G Hall of HCC dated 17 Sept 2007 -
"10. As part of a remediation action plan to minimise evapotranspiration from open water DECC recommends that open water areas be reduced as much as possible".
We estimate this option would require 400,000 m3 plus of clean land fill from existing cleared adjacent private land owned by the same developer on lot 2. (Calculated as an area of 200m x 400m of silt fines from 1 to 5 m depth from surface water and another 2 metres to orginal dry ground level; That is 200m x 400m x 5m (average) depth = 400,000 m3.)
The cost of this mitigation would be $1-2M plus - in effect a penalty for breach of the 1996 DA staging - to relocate fill from adjacent cleared private land (and otherwise unprocessed) using dozer, loader, trucks, dozer again, roller and landscaping. This provides a safe lake final landform as intended.
(iv) A best case scenario for re-establishing flow in Tinda Ck to the World Heritage Area: We estimate 700,000 tonnes of clean fill to cap all holes from existing land cleared land owned by the developer.
The cost would be $2-3M.
2. Peak environment groups The Wilderness Society, NSW National Parks Association, Blue Mountains Conservation Society, Colong Foundation for Wilderness and local neighbours have all written and expressed alarm at the strangulation of water into Tinda Creek catchment in the Wollemi section of the Blue Mountains World Heritage Area due to the sandmining.
Council's expert whose report we have dated May 2007, who we also trust and rely on, namely hydrologist Chris Jewell has advised that if the developer expands according to his s.96 variation he will impact Tinda Ck water flow into the world heritage area by up to 57% [bold added]:
"Although an assessment of the site water balance indicates that it is unlikely that, to date, the quarry has had a significant impact on the water balance of Tinda Creek, as the operation proceeds, evaporative losses from the ponds will increase and the reduction in outflow from the upper catchment to Tinda Creek will become significant. If the site is closed with a water-table window lake remaining, then a long-term reduction of the order of 37 percent of the original outflow from the catchment upstream of the quarry is possible. Losses will be higher if the final landform includes a lake extending across the entire 22ha site." ................

?If the final landform involved a lake occupying the entire 22-ha operational site, as now proposed, then the reduction in outflow of Tinda Creek would be 204 ML/year, or 53 per cent.?

Chris Jewell in correspondence dated 13 October 2008 to us maintains the final landform in the s.96 variation is at least 17 ha based on Birdon/Umwelt?s own final landform diagram, which is up from 11 ha in the EIS/approved plans.

The water loss is therefore likely to be greater than 37% and closer to 53% which is unacceptable. You will also be aware generally of CSIRO report of July 2008 of downward trend rainfall for NSW in the climate change paradigm, which Commissioner Moore relied on late 2008 to apply the precautionary principle in a judgement adverse to Coca Cola Amatil at their Peats Ridge water bottling plant. (We provided that evidence to the Commissioner).
There is a third issue regarding issues of veracity of the sandminer - including deceptive references to the wrong approved plans by their consultant Umwelt - which the court may possibly address as part of the lapsed consent argument. We submit clause 283 of the EP&A Act 2000 Regulation regarding misleading and deceptive conduct may be involved.
In conclusion we invite DECC to play a role as a friend of the court and/or provide expert advice as needed on finding a way forward in this mess that has become the Tinda Creek sandmine impacting a World Heritage Area in a lower rainfall reality.
Yours truly, Tom McLoughlin, legal agent for Neville Diamond.
Attachment: Original written submission to HCC found here, our additions in red typeface:
----- Original Message -----
From: ecology action australia
To: gordon.plath@environment.nsw.gov.au
Cc: terrigal@ ; castlehill@ ; LOP
Sent: Monday, November 10, 2008 7:41 AM
Subject: fyi as mentioned sandmine issue Wollemi Fw: Final part 6 re Tinda Ck Blue Mtns World Heritage before council Tues 11 Nov 2008

Attn Gordon Plath [managing] solicitor/DECC legal branch
My information is that the majority of Hawkesbury City Councillors on the Liberal controlled council will be voting against the expansion of the sandmine tomorrow evening 11 Nov 2008 but you never really know.
Notice CC list - big press, HCC councillors all factions, Peter Garrett's man Ben Pratt, ngo groups, Ian Cohen MP office, council expert Chris Jewell, nsw env minister, local govt minister. And above to the related ministries in the state opposition. No more secrets for this cowboy sandmine unlike the last 20 years of menaces and violence.
Here's hoping the council do the right thing and follow their senior officer's recommendation to refuse the expanded development impacting the Blue Mtns World Heritage area.
Yours truly
Tom McLoughlin, court agent for Neville Diamond.
----- Original Message -----
From: ecology action australia
To: bart.bassett ; barry.calvert; council@hawkesbury ; kevin.conolly@; christine.paine@; bob.porter@; paul.rasmussen@ ; rex.stubbs ; leigh.williams@
Cc: Jackie ; ben.prattEAFed ; chrisJewell ; Ben Cubby SMH ; Kirsty Ruddock EDO ; Keith Muir Colong ; Peter Cooper TWS ; Andrew Cox NPA ; BMCS ; cate faehrmann NSWNCC ; r.chapple@bmwhi.org.au ; Scott Hickie ; bmwhi@bmwhi.org.au ; bmcs@bluemountains.org.au ; stateline ; ian.cohenMPGreen; dp.office@tebbutt; perry.minister ; bensonsDailyTelegraph

Sent: Saturday, November 08, 2008 7:54 AM
Subject: Final part 6 re Tinda Ck Blue Mtns World Heritage before council Tues 11 Nov 2008

The sandmine using between 37% and 53% of Tinda Ck water into the Wollemi World Heritage Area - as climate change bears down on us all - is going before Hawkesbury City Council again this Tuesday 11th Nov 2008. The chief planning officer's report recommends refusal and to issue a notice to cease operation.

Last and final part 6 of this series of evidence about the issue is here:

Previous items in this serial are here:
Tuesday, 28 October 2008 Diamond Diary Part 4: Attacking the messenger, not the vandalism Mood: don't ask, Topic: legal

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

Thursday, 23 October 2008 Diamond Diary Part 2: How I went bankrupt 'doing litigation for Dixon Sands' Mood: accident prone Topic: legal
Wednesday, 22 October 2008 Diamond Diary Part 1: Amazing career of environmental litigation Mood: on fire Topic: legal
Tuesday, 21 October 2008 World heritage vandal gets technical win in Land & Environment Court ...for now Mood: accident prone 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

----- Original Message -----

From: Tara Cameron President Blue Mtns Conservation Society

To: Tom McLoughlin

Sent: Sunday, October 12, 2008 12:11 PM

Subject: Tinda Creek

Dear Tom,

The Blue Mountains Conservation Society has over 1000 members and is extremely interested in developments impacting upon the Greater Blue Mountains World Heritage Area. Hence we are concerned about the Tinda Creek Sandmine in respect to its impact on the Wollemi National Park. We are particularly concerned about the tailing ponds and their capacity to reduce the amount of water to Tinda Creek. Water quality is also a problem that we would focus upon.

The Society will be discussing this issue at our next Management Committee Meeting.

Yours sincerely,

Tara Cameron


Picture: 1996 thankyou card to this writer in 1996 from Leslie Walker objector and former neighbour of the sandminers,whose sheep were mysteriously shot dead and has now left the district.

Posted by editor at 9:06 AM EADT
Updated: Friday, 6 March 2009 10:41 AM EADT

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