2011 - September updates - Caught in the Injustice System

Any reference to CASACIR or its directors, shareholders, owners or operators relate to pre-14 February 2024 when the company was sold. In no way can anything said relate to the company or its new owners, operators, directors, and shareholders after that sale.

28 September 2011

Went to the site again yesterday. Not surprisingly, there was still no change. I still cannot see how the failure to comply can be seen as complying!

As we see (below) from the questions asked of Peter McWhinney – Baw Baw Shire’s manager of statutory planning – and by his response (also below), and by his apparent failure to do anything to require the compliance of those things not complied with, that he seems not the least interested in actually making man X, man Y and CASACIR comply – it is therefore no wonder man X, man Y and CASACIR seem to believe that they don’t have to comply if they don’t want to. It does raise the issue of the known conflicts of interest and if they have any bearing on Peter’s decision on behalf of council to not require compliance.

I do understand though, because if Peter finally required compliance then it would make a mockery of his statement at the tribunal and prove man X’s relevant sworn statements to be false. Conversely, it does make it clear that Peter shows little care about the impacts on neighbours and that the planning scheme does not have to be complied with unless, in this case, it is to the benefit of man X, man Y, CASACIR and/or council.

27 September 2011

Peter McWhinney appears to be under the impression that failure to ensure that the conditions are met is acceptable behaviour. On 7 September 2011 (over a year after the quarry opened, a year since the “use” commenced, 10.5 months after Peter having effectively said that there were no breaches) I made the following comments and asked the following questions:

“As you know I have in the past raised numerous matters of concern about the construction and operation of the quarry at Neerim North Road, Neerim North and Casacir’s compliance with planning permit number PLA0010/07. It still seems to me that there are various obligations on Casacir under the planning permit which it has not met. Please look into these matters. I ask that you ensure that Casacir take appropriate remedial action. Whilst there are some other matters which are more arguable it seems beyond argument that Casacir: (1) has contravened condition 12, by not requiring a reading for the property at 565 Neerim North Road; (2) has contravened condition 16, by not having a data logger installed; (3) has contravened condition 22, by not undertaking plantings on: (a) the northern boundary (not one plant exists or has existed in this location), and (b) the south-eastern corner of the site (not one plant exists or has existed in this location), and (c) the first corner in Pearce Road (not one plant exists or has existed in this location), and (d) the western boundary south of the quarry entrance (not one plant exists or has existed in this location), and (e) the western edge of the dam (not one plant exists or has existed in this location), and (f) the northern edge of the dam (not one plant exists or has existed in this location other than self sown older plants), and (g) the southern edge of the dam (not one plant exists or has existed in this location for the first ~25m), and (h) the western boundary south of Pearce Road (not one plant exists or has existed in this location other than the older trees previously planted), and (i) the southern boundary south of the property with more than one row, and (j) the replacement of plants having died (on the western boundary north of the quarry entrance and south of Pearce Road and north of Pearce Road), and Further many of the plantings remain in regimented rows and are not of the width and length shown on the endorsed Figure 3. You stated to VCAT that Council regarded the plantings in regimented rows as a contravention, and that you had discussed this with Casacir and had achieved a solution, However, to date nothing has happened. Please advise when we can expect to see compliance by non regimented row plantings. (4) has contravened condition 31, by not sealing the section of the road; (5) has contravened condition 32, by not upgrading and sealing the entrance and ensuring it is wide enough that the trucks do not have to enter from the wrong side of the road. I would appreciate you letting me know within 21 days whether you agree with each of the above concerns and if not why not.

If you agree that these matters require attention by Casacir to ensure compliance with the permit please inform me and advise me what date you intend to require compliance by Casacir.”

Peter’s response (dated 19 September 2011) to those comments and questions was: “Council is monitoring the quarry site and will continue to investigate any issues that arise in relation to compliance with the Planning Permit and work with the quarry operators towards resolving such.” He refused to address the failures and did not enforce compliance (including the “unregimenting” of some plantings that Peter said at the tribunal almost a year ago that would have to be “unregimented“), regardless of the impacts on neighbours.

25 September 2011

This is a quote from the Casacir.com.au web site: “Neerim North Quarry located on Neerim North Road, Neerim North was closed in 1991. CASACIR purchased the land in 2003 and re-opened the site in early 2009. The quarry contains blue coloured basalt rock.” However, in what sadly appears to be somewhat typical, there are a number of inaccuracies:

(1) CASACIR did not purchase the land in 2003: (a) man X told a group of us in mid 2005 that he (a director of CASACIR) and man Y (also a director of CASACIR and the director of the Stabilime Group) had been “in discussions” with Gordon Lockett (“Gawdy”, the farmer who bought the land from CSR in 2003 and who grossly “misled” people by saying that he would not be selling the land and that it would never be a quarry again!) (b) man X told the group in mid 2005 that they had yet to sign an agreement with Gawdy but that would be done soon. (c) The transfer of land is dated 2 May 2006. So, either man X provided “inaccurate” information to the group of people he met with, and to Land Titles Office and others, or he has put inaccurate information on his web site and does not check for accuracy. (2) CASACIR says that it “re-opened the site”. There was no quarry there to “re-open” because the land had been fully rehabilitated and had been used for farming purposes for many years. (3) CASACIR acknowledges that they opened the quarry in “early 2009” in spite of denying under sworn testimony at the tribunal that (a) they had not commenced “use” until 13 November 2009 (hardly “early 2009”) and, (b) the construction works did not start before 16 August 2009 (still hardly “early 2009”). This admission in the web site further proves many failures to meet the conditions required to be implemented prior to works or construction commencing. This further admits that they commenced prior to receiving the permit and work authority to do so – or they, yet again, provided inaccurate information on their website!

Further, on a side note, their own photos (on their web site and in their documents) show that there was no water spray set up to keep control the dust and that dust is often not controlled in spite of claims to the contrary!

23 September 2011

An Order was received this afternoon (dated 16 September 2011 – dated one week earlier than delivered). My comments are listed in square brackets below. The Order says:

“1 This application for an order for costs arises from an application by [the applicant] for an enforcement order, which was heard over 5 days, 22 – 26 November 2010, by myself sitting with Ian Potts, a member of this tribunal. Our written determination in relation to the case is dated 7 February 2011.” [It appears that that Order was written by Russell rather than Russell and Ian: the heading quotes the Order as having been written by “RBRD” and does not include Ian (“IP”). Further, the terminology used and the point of view exhibited appear to be Russell’s since they follow the same line as his previous Orders, as does the outcome]

“2 The application for an enforcement order was refused and no enforcement order was made. Costs in relation to the case were reserved.” [This refusal to provide enforcement Orders was in spite of: (1) me providing over 200+ pages of proofs on behalf of the applicant, (2) failures to comply acknowledged by Byard and by man X and CASACIR, (3) next to no proofs by man X, man Y and CASACIR, and (4) a failure by the VCAT members to attend the site to ascertain who was being truthful and who was deceiving the tribunal by some inaccurate sworn testimony]

“3 An application has been made for an order for costs and dates have been set for a hearing of such an application. Such a hearing was fixed for 3 August 2011. However, the hearing was adjourned. I understand that this adjournment was at the request of Country Endeavours Pty Ltd and perhaps associated parties. It was granted on the basis of their barrister not being available on the appointed date.” [Both myself (on behalf of the applicant) and CASACIR (one of the respondents, with man X and man Y being the other two) requested an adjournment of the hearing set for 3 August 2011, but for some reason the onus for this adjournment was only been put against the applicant. Further, since the “associated parties” are not applicants, they actually have nothing to do with either the enforcement hearing or the costs hearing].

“4 The hearing was adjourned to 10 am on Wednesday 21 September 2011. It was thought, perhaps mistakenly, that this date was suitable for the parties. Casacir Pty Ltd, and perhaps associated parties, now ask for a further adjournment on the basis that their barrister is not available on 21 September 2011.” [There are a number of points here: (1) Perhaps the failure to list CASACIR in regard to the first adjournment was so that it appears that there was one adjournment at my request, and one at the request of man X, man Y and CASACIR (possibly an attempt to look even-handed). (2) Because man X, man Y and CASACIR requested adjournments two times (and both were granted), man X, man Y and CASACIRobviously had two adjournments, not one. (3) In order to facilitate the Tribunal’s decision for a new date, on 26 May (when requesting the adjournment of the hearing set for 3 August 2011) I, on behalf of the applicant, submitted a list of dates for which Dr Robert Sadler (our barrister) would not be available (list copied to man X, man Y and CASACIR). (4) On 20 July 2011, I provided an updated list of available dates again the list was copied to man X, nay Y and CASACIR). (5) At no stage did man X, man Y or CASACIR submit any such list. (6) Further, CASACIR’s “associated parties” (man X and man Y) were respondents and did, in fact have everything to do with the hearing – but they did not request an adjournment, so the 21 September 2011 hearing should have proceeded].

“5 It is a waste of the time and resources of the tribunal to have a succession of adjournments of this sort. I now propose to adjourn this matter to an administrative mention on 6 October 2011. The parties are not required appear on that date.” [There are a number of points here: (1) If man X, man Y and/or CASACIR had produced a list of dates at any time before this then the tribunal would not have been placed in this position! (2) On 11 August 2011, I received notification from the tribunal that man X, man Y and CASACIR (without any form of communication with the applicant or related parties) had requested a further adjournment of the hearing set for 21 September 2011; and on that same day I objected to the further adjournment. (3) After finally receiving the proper notification, on 25 August 2011 I submitted further objections to the adjournment. My objections were based on the very fact that they had not provided a list of dates and had 2 alternative barristers they could have used. I find it sadly typical that it was not noted that we had twice provided a list of dates and did not cause this problem. (4) With the way that Byard referred to me in the Order dated 7 February 2011, I have felt and continued to feel very denigrated by him. (5) It is extremely interesting to note that the date for this hearing was set knowing that, should there be a need for attendance, our barrister, Dr Robert Sadler, would not be available. (6) It is also noted that Byard did not refer to the fact that I had behaved in a responsible manner by twice providing the lists of dates].

“6 The idea of the administrative mention is that any parties who wish to appear in relation to this costs application should agree with any other parties who also wish to agree upon several dates (preferably at least 4 or 5) that are convenient to all who wish to appear, and that the tribunal should be informed, in writing, by the date of the administrative mention of what those dates are. The idea is that the tribunal will then set the matter down for hearing on one of those dates, providing that one of them is convenient to the tribunal.” [Having received an advice from the tribunal on 15 September 2011 that the hearing was adjourned (with date of a new hearing to be advised), on 19 September 2011, I submitted a further updated list of dates for which Dr Sadler would not be available – although this was also not noted (this makes three times the tribunal and man X, man Y and CASACIR were advised of dates by me!)]

“7 As the representatives of Casacir Pty Ltd have initiated this latest adjournment, its solicitors should take the initiative in working out a suitable date with the other parties interested. This must include [the applicant] and parties associated with that company. I am not sure, at this stage, whether the responsible authority wishes to participate in this hearing, but the solicitors for Casacir Pty Ltd need to ascertain that, and include the responsible authority in the establishment of a convenient date if it wishes to be heard. It is unlikely that the other parties will wish to be heard, but that can be ascertained and they can be included if relevant.” [Again the emphasis appears to be on CASACIR having only requested one adjournment not the two they actually requested!]

“8 The ascertaining of several dates suitable to all parties who wish to participate becomes the responsibility of the solicitors for Casacir Pty Ltd.” [And man X, man Y and CASACIR take their responsibilities so seriously that they still did not comply with a number of the permit and work authority conditions and ignored parts of previous orders!]

“9 All parties need to appreciate that this costs application needs to be dealt with, unless it is withdrawn, and further adjournments are unlikely to be granted at all, and if granted it will only be granted for very good reason. They should also note that unavailability of legal representatives cannot be expected to be accepted as a sufficiently good reason for further adjournments. If, after the matter is again set down for hearing for a date that the parties wishing to participate have indicated is acceptable, a representative subsequently becomes unavailable, the party concerned must expect that it will need to engage other representation so that the matter can proceed at the appointed time on the appointed date.” [A few things: (1) As stated previously, it was not me dragging my heels, but man X, man Y and CASACIR! (2) I had objected to the further adjournment! (3) Even though Byard said “…unavailability of legal representatives cannot be expected to be accepted as a sufficiently good reason for further adjournments”, he allowed man X, man Y and CASACIR to adjourn the hearing an additional time for just that reason! (4) I provided lists of dates and man X, man Y and CASACIR didnot. (5) It would have been very nice if Byard gave credit where credit is due and blame where blame is due for a change, but appears, based on history and what was yet to come, apparently out of character]

22 September 2011

Some may say that I am reading things in where there is nothing to read, but the tribunal stated (based on the inaccurate accusations of man X, man Y and CASACIR) that I have interpreted things as I want to interpret them. I have been accused, for example, of saying that I have interpreted:

conditions 9 & 10 to read that the limitations of condition 9 have to be met with regard to “construction” activities. If you actually read condition 10, it says [emphasis mine]: “During construction activities the noise limit for the purpose of condition 9 is 55db(A)…” – that clearly ties “construction” noise levels back to the restrictions in condition 9, because if it doesn’t then it does not make sense, so is hardly an “interpretation”!
condition 14 as having to comply with the dust management plan and having to retain all dust within the site. The dust management plan states that a lot of things have to be done to keep the dust levels down (which is the stated “objective”) and the way it would be known if the objective was met would be no dust, so is hardly an “interpretation”!
condition 32 has to be met by the proper width to allow the trucks to enter from the correct side of the road – which is the requirement of the condition, so is hardly an “interpretation”!
condition 34 as CASACIR having to repair the road – they do have to pay for all the repairs and yet man X felt free to state that he, man Y and CASACIR were willing to only “contribute” $5,000-00 for the first year and to have council rate-payers pay the rest (especially for the major works required by the destruction of the road by the quarry trucks) , so is hardly an “interpretation”!

From my observations of what they have and haven’t done, I contend, however, that it is man X, man Y and CASACIR that seem to have interpreted things how they want to interpret them (and Byard of the tribunal has chosen to support them). Some examples of such “interpretations” from experience appear to be that:

although the definition of “use” (according to the permit) was “the process of extracting, drilling, moving, processing (including but not limited to rock crushing and breaking) and transporting rock”, man X, man Y and CASACIR determined that this was not so and that: (1) the extracting of rock was not “use” unless they said it was; (2) the drilling of rock was not “use” unless they said it was; (3) the movement of rock was not “use” unless they said it was; (4) the processing of rock was not “use” unless they said it was; (5) the crushing of rock was not “use” unless they said it was; (6) the breaking of rock was not “use” unless they said it was; and (7) the transporting of rock was not “use” unless they said it was;
they didn’t have to meet the required width of the quarry entrance if they didn’t want to, and that the failure to do so resulting in trucks on the wrong side of the road appears to not be an issue because they didn’t seem to mind the drivers being over double or single unbroken lines in other locations, and that the Code didn’t really have to be met if they didn’t want enforce it;
their multiple undertakings to only use the designated silenced drill, regardless of whether it was for use or construction, means that if they didn’t want to they didn’t have to;
they could work on a public holiday by trying to use work place agreements to justify a deliberate breach of conditions;
if they didn’t want to have a septic tank permit or holding tank permit they didn’t need a septic tank permit or holding tank permit, regardless of what the Environment Protection Act 1970, the current Septic Tank Code of Practice 2003 and/or council required;
they didn’t actually need to have noise assessments done at 565 Neerim North Road regardless of the requirement to do so, if they didn’t want to have such an assessment done;
the dust gauges did not have to be installed until man X, man Y and CASACIR wanted them to be, and certainly no background dust measurements were to be taken to provide accurate data about the impacts;
the water monitoring was so unimportant to them that it was not commenced until they were ready to do so (and certainly not until well after the impacts had commenced), and certainly no background water quality measurements were to be taken to provide accurate data about the impacts. Further, a monitoring bore that was known to be “ineffective” and virtually unreadable was not a problem, because then any impacts could be further concealed;
they didn’t need to comply with the Dust Management Plan unless they wanted to, or were made to (they finally had a 110 Notice on them because they continued to fail to comply and DPI became aware that I had named and shamed the DPI officers on the website for repeatedly and continuingly failing to take action prior to that);
“before use commences”, “prior to the use commencing”, “prior to works commencing” (or other wording to that or similar effect), for the main really meant that man X, man Y and CASACIR could do what they had to do if and when (and if) they wanted to it;
the required provision of plans and specifications did not actually mean that they had to produce any such plans and/or specifications unless they wanted to do so, and they didn’t want to provide many of them because they are not provided when required;
if they didn’t want to construct a section of road they are required to construct, they didn’t have to until they were ready to do so, and that if they don’t want to repair it they don’t have to, and if they wanted to leave it unsealed for pushing on to a year (or so) then they considered that that was their prerogative;
if they didn’t want to plant a plant where they don’t want to, in spite of swearing that they had already done so, they wouldn’t do so and that was okay with them;
if they made an agreement, including at the tribunal, it did not mean that it actually had to be fulfilled if they don’t want to fulfill it (unless they are made to);
they didn’t actually have to have the required 2 community meetings a year if they don’t want to, and that the information provided at those meetings did not have to actually be accurate, factual and truthful if they would rather provide, or allow to be provided, inaccurate, fictional and/or deceptive information that made it sound as if they had actually done what they were supposed to do;
they could provide provably inaccurate sworn information to the tribunal (which deceived the tribunal) if they wanted to;
just because they made undertakings, didn’t mean that they have to meet those undertakings unless they want to – which it meant that they didn’t in many instances;
apart from the planning permit and the work authority, they did not have to apply for permits and licences until they wanted to apply for them or were made to do so, if at all;
they had the right to take water from a neighbouring property because they wanted to do so in spite of having no such no legal right to do so and against the express known wishes of that neighbour;
they could send drainage through a neighbouring property because they wanted to do so in spite of no legal right to do so and against the express known wishes of that neighbour;
and, and, and.

17 September 2011

Today there is, again (or I should say: still), no change. In spite of sworn testimony to the contrary, there are still no plants in certain locations (e.g. northern boundary, around the dirty dam south of Pearce Road on the Neerim North boundary (outside the site)…), the road is still not sealed or maintained, there are weeds growing profusely, there are many places where you have to have x-ray eye-sight to see the next post from the one “next” to it, the site is still not secure (in fact it is even more un-secured than it was when we went to the tribunal for enforcement orders!!), and, and, and (I am getting so tired of writing all the failures down).

Apart from finally issuing the new dust 110 Notice (after two years of allowing significant and frequent dust to issue off-site and outside the buffer), if council and/or DPI have enforced any of the conditions about which I complained then it is certainly not obvious. I wonder what they consider to be a breach since the failure to comply with clear failure to comply with the conditions, the failure to comply with clear failure to comply with the work authority, the failure to comply with clear failure to comply with the work plan (and its figures and appendices), and the failure to comply with legislation appears to not be classed as breaches.

16 September 2011

Well, well. Just received notification from the tribunal that they have granted man X, man Y and CASACIR a further adjournment, so who knows when the hearing will be now. Perhaps the delays are because they are uncertain of winning (as they should be)! If they were certain of winning, if their facts and case were clear cut, they could have, and surely would have, used one of the other two barristers in order to deal with the matter swiftly.

So, even though man X, man Y and CASACIR did not follow proper procedure in the request of an adjournment (until slapped over the wrist by the tribunal), and even though they have 3 barristers that they could have called on, and even though they did not provide a list of dates to the tribunal (and we did – twice), and even though they are still in significant breach of conditions – they have been granted a further adjournment. Hmmmm.

15 September 2011

Man X, man Y and CASACIR, and council, want us to pay costs for an application that was brought about because: (1) man X, man Y and CASACIR did not do everything they were supposed to do, undertook to do and swore had been done; (2) man X, man Y and CASACIR did things they were not to do, and undertook not to do and swore that they had not done; and (3) council and DPI did not enforce the conditions, the planning scheme or legislation; and (4) the tribunal, while admitting that there were breaches, decided not to provide enforcement orders (and (for example), as previously said, although the tribunal determined that dust exiting the site just a number of days earlier than my affidavit was “anecdotal”, DPI (once they knew about this website) then put a 110 Notice against man X, man Y and CASACIR for the excessive dust emissions – hardly “anecdotal!!).

Man X, man Y and CASACIR and council sought to put blame elsewhere – they wanted us to pay for their mistakes and errors. The failures were theirs’ not ours. If we get costs brought against us because man X, man Y and CASACIR failed to comply with a significant number of conditions, and Peter McWhinney and Anne Bignell failed to enforce the conditions and other legal requirements, and, although there were acknowledged breaches (with those breaches continuing as at 7 September 2011 (almost 10 months after they were sworn to have been remedied)) then that would be grossly unfair, but sadly typical.

Only 5 days to go ‘til the cost hearing now. In all fairness, and using quotes from other orders, the tribunal cannot put costs against us unless the tribunal is going to go against its own words. Keep posted because I will have much more to say, including a number of quotes from other orders.

I have also been advised that man X, man Y and CASACIR may use this website against me at the hearing. I do hope they raise it, I really do.

7 September 2011

Well, well, out to the site and nothing has changed. No plantings where there were no plantings, including where it was sworn that there were; no sealing (10 months now) on the section of Neerim North Road that man X, man Y and CASACIR were required to construct and seal, the remainder of the road is still not maintained; you still can’t see a number of posts from the next; the site is still not secure; and, and, and. The noise was not as loud today and there was not much dust for a change (but I was told that they knew I was there and that would explain it).

You have to wonder why man X, man Y and CASACIR feel so free to not comply with the conditions. Personally, I wonder why they seem to feel secure that the authorities are not going to tell that some things sworn to were not as sworn, and don’t seem prepared to enforce conditions, the planning scheme and legislation.

4 September 2011

I don’t know about anyone else, but it seems very strange to me that someone who tells the truth (which I did) is denigrated, ridiculed and not believed (in spite of having provided over 200 pages of proof (mostly photos and FOI results), and yet someone who provides false testimony and evidence in sworn affidavits and testimony and yet has provided no or little proof (how hard would it have been to take photos of the plantings he swore were done, just for example) – and yet he is lauded and believed by the authorities who have chosen to not go to the site to see the truth for themselves.

I find it also “interesting” that the same one who provided the “inaccurate” information, and one of the authorities who failed to find out the facts for themselves (council), both expect us to pay their costs because we were concerned enough about our wellbeing and the protection of our property and rights that neither man X, man Y and CASACIR or the authorities were concerned enough about.

17 days to go to the hearing. It will be very interesting to see what the members do, and whether fairness will reign or whether there will be a continued perception of bias.