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.
17 February 2012
If you are looking at what a proposed quarry near you may look like, there is a possibility that it may bear the same identifying factors as this one. This is the continuing situation at man X, man Y and CASACIR’s Neerim North quarry:
In spite of the demand for plantings on the northern boundary (one of such various locations), there are none planted in spite of man X having sworn that they were planted there – but this failure to have them planted is a breach. Otherwise we have to take man X’s sworn testimony that the plants have been eaten by the feral animals, but the ferals are therefore not controlled and the plants not replanted – making it two breaches and not one.
The south-west bund was very belatedly created and topsoil is buried under overburden in stead of being stockpiled, which is another breach of conditions. There is no real attempt at “drainage” – drainage runs off the bund, into the area with grass removed, and it then either soaks through and goes onto the road and then down into Kookaburra Creek or it exits through a cut in the bank, which flows onto the road and into Kookaburra Creek – no-wonder man X, man Y and CASACIR call Kookaburra Creek a drainage line instead of a watercourse. It was a clean clear watercourse before man X, man Y and CASACIR arrived on the scene – it is still a watercourse, but one which has been polluted by man X, man Y and CASACIR’s activities.
There was an excavator on top of the belatedly south-west bund, but the excavator does not have broadband reversing beeper – strange, because it is a requirement.
Man X, man Y and CASACIR fail to keep the trucks clean, thereby allowing soil and stone to be brought onto, and dropped on, the road.
The truck drivers fail to keep on the correct side of double lines (including going around blind bends and over hills.
11 February 2012
I have just been going through the testimony of man X (admitted in documents filed wth the Supreme Court to have been approved and authorised by man Y and CASACIR). It is easy to forget what has been sworn to, for example:
On the last day of the enforcement hearing, a new document was produced by Graeme Peake, the barrister acting for man X, man Y and CASACIR. In spite of the fact that this new document had been prepared at least a week or so prior to the hearing’s commencement, it’s very existence was deliberately kept secret, and it was not produced at all before man X was actually in the witness box in spite of that being the very last day of the hearing. Thus we were denied natural justice because this was a document: *about which we had had absolutely no notice, *that we had not seen, *that we had not been told about, *the contents of which we not had any opportunity to consider previous to this vey belated production.
In spite of the Order to produce all documents relied upon at least 10 business days prior to the hearing (in line with the tribunal practice note), Byard, however, allowed CASACIR and man X to produce this document with absolutely no notice, and considered that “…it’s unfair that it should be excluded… I think that it’s fair to hear it unless there’s a good reason, otherwise…” – and this was in spite of having just said “…if there’s something mentioned that’s sought to be led in examination in chief that’s not in the witness statement of the affidavit, this suggests that it’s a denial of natural justice” [the quotes are excerpts from the transcript]. One set of rules for man X, man Y and CASACIR and a totally different set for me. Hmmm.
The persons quoted in the document were not asked to provide affidavits and were not asked to testify as to the truth as to what man X swore that they said or did. The document was not part of any of man X’s affidavits, it (along with other information not provided by him) contained significant amounts of hearsay and, although the claims were (presumably) verifiable, they were not verified (diaries not produced, etc) – ensuring that the claims were added to the long list of further unsubstantiated claims. Isn’t it strange that my photos and FOI results were not considered by Byard to be as credible as the amount of hearsay and unsubstantiated claims of man X, man Y and CASACIR. Hmmm. For some reason, Byard bent over backwards to allow man X, man Y and CASACIR as much leeway as possible – again, one has to ask why. One also has ask why man X, man Y and CASACIR felt that they could just produce a new document without having produced it for discovery and get away with it – perhaps they knew they could. Hmmm.
Stockpiling topsoil and overburden from transcript
It was acknowledged by man X, under oath, that “The approved Stage 1 … designates an area to the west of the quarry and the Stage 1 quarry hole towards Neerim North Road as temporary excess overburden storage” and that “it’s stored for the purpose of rehabilitation”, that, whilst it is “a valuable commodity” the “overburden is put back in to shape the quarry to its final design”, and “then the topsoil is put back on top of that” – so one has to wonder why they felt that they should be able to sell (and have admitted to having sold) soil and overburden, since it was acknowledged under oath as being required for rehabilitation, is noted in the work plan as there not being enough of it, and I note that they did not inform the tribunal that they had intentions of selling a considerable amount of it when seeking a permit. Further, instead of stockpiling the remaining topsoil, a lot has been used for the creation of the south-west and northern bunds, and both topsoil and overburden have been compacted on the east side where it is not permitted and in spite of having been told by both DPI and council to remove it!
The transcript is fascinating reading and gives a whole wealth of information.
9 February 2012
No surprises on site again today: (1) they started machinery before they are allowed to (breach); (2) they had trucks arriving before they are allowed to (breach); (3) they still haven’t planted the plants in various locations (breach) – or else the feral pests are so prolific that they eat the replacement plants the instant they go in the ground and leave absolutely no indication that there has been any planting (but in that case there are two breaches in that the ferals are not controlled and the plants are not then replaced again); (4) topsoil is still being used for bunding and is not stockpiled – even a section that I thought they had put aside for stockpile has now been used for bunding (breach)! (5) the storage of soil on the eat side is still there in spite of the fact that both DPI and council have told man X, man Y and CASACIR to move it (breach); (6) the Neerim North Road is not maintained, even though man X, man Y and CASACIR said that they would pay for significant sections to be dug up and replaced (breach); (7) the new section of the Neerim North Road still does not comply and nothing has been done to remedy it (not surprising) (breach); (8) the site is even more un-secure than previously (breach); (9) ….. All these (and many other) breaches, yet man X, man Y and CASACIR all object to me saying that they interpret things how they want to – how ironical!!
In addition, the filthy dam absolutely stinks and has hydrocarbons in it – while this is not an actual breach, it shows the lack of care for both the environment and their impact upon it. It also shows that, although they proposed to use that dam for the so-called “replacement” flow (in reality their discharge of filthy quarry wastewater and drainage) from that dam to Kookaburra Creek, they don’t really care what “quality” comes out of it – nothing has been done in any regard to improve the state of the dam or to stop its ongoing pollution.
8 February 2012
Peter McWhinney (council) told the tribunal that the only condition that council was concerned about was the regimented planting in breach of conditions 22 & 23 – i.e. he was not concerned about the dust not being controlled, noise over the limit, feral pests not controlled, plants not planted in a number of locations, plants not re-planted in a number of locations, no permit for the septic system, site not secure or properly identified, road not sealed after having very belatedly constructed), …. He made his verbal submission in relation to the enforcement application on the Monday 22 November 2010, and man X followed with his sworn verbal testimony on Friday 26 November 2010 (false testimony which has been admitted to be approved by both man Y and CASACIR).
In the Order dated 7 February 2011 in relation to the enforcement hearing, the member Byard noted (40 & 41): “Prior to the hearing the responsible authority had expressed itself as being satisfied. Early in the hearing, Mr McWhinney, the council planning officer who appeared for the responsible authority, was asked as to whether it remained satisfied. He replied that, disregarding trivialities, there is only one minor matter about to which the responsible authority is not yet satisfied. That matter is the requirements under condition 22 of the permit. Condition 22 concerns landscaping and, amongst other things, requires that the planting of trees as part of the landscaping should not be in “regimented lines”. Some such planting has been in such lines. However, the responsible authority is satisfied with an arrangement whereby this is being or will be put right by the planting of additional trees, not in lines, so as to break up the impression of regimentation. It is satisfied that this matter is being rectified and that there is currently no occasion for an enforcement order in respect of it.” The members ignored the fact that man X effectively called Peter a liar during that sworn testimony when examined by his barrister Graeme Peake and cross-examined by my barrister, Dr Robert Sadler:
Peake: Now, Condition 12 [sic] of your permit requires the landscaping on the site to be undertaken to the satisfaction of the responsible authority. Mr McWhinney, when he was with us on Monday, expressed that the responsible authority had not been satisfied with some of the landscaping because it had been planted in regimented lines, which was one of the things that the condition prescribes. Has any action been taken to deal with that issue?
Man X: That issue applied to the treed area that was put in just prior to summer last year above the resident south of Pearce Road.
Peake: So we’re talking about the lane between her house and Pearce Road, yes?
Man X: Yes. That was put in in… planted in regimented rows, except for the front row which was a different species and was planted a lot thicker. Most of those had been eaten by the wildlife and they had been replanted. We have also gone back and planted intermittently amongst those to try and reduce the regimented rows since. …
Sadler: …You agree that there is vegetation planted in regimented rows on the south side of Pearce Road.
Man X: In the first planting, yes.
Sadler: Right, do you agree that when this proceeding was commenced a year ago that the vegetation was planted in regimented rows on the south side of Pearce Road?
Man X: “When the planting was done on the south side of Pearce road it was done in regimented rows.
Sadler: Yes, and you say you had a conversation with Mr McWhinney about that?
Man X: Yes … Mr McWhinney and myself have been all over the site and examined all the trees …and he has been happy with all of it.
Sadler: Except for the planting on the south side of Pearce Road, is that right?
Man X: When we originally planted Pearce Road before last summer, into last summer, we planted in regimented rows which has since been altered.
Sadler: Right, when is “since”?
Man X: We had tree planters back again in this year and replanted all the other um tree guards and roadside where we had to and buffers.
Sadler: South side of Pearce Road are we talking about?
Man X: The south side of Pearce Road and other trees planted within it to try and break up the regimented rows.
Sadler: When did that occur?
Man X: When the tree planters were back. Probably in um autumn.
Sadler: Mr McWhinney sat here on Monday and said that he didn’t agree that and he said that he hadn’t been satisfied about the planting in regimented rows. Did you understand him to be talking about the south side of Pearce Road?
Man X: That is the only place where the regimented rows are.
Sadler: I put it to you … that you haven’t replanted any of the regimented rows on the south side of Pearce Road. Do you agree or disagree with that?
Man X: Say it again?
Sadler: I am saying to you that you haven’t either personally or arranged through contractors to replant in other than regimented rows in the plants on the south side of Pearce Road.
Man X: I say that you’re wrong.
In addition to that, man X, man Y and CASACIR provided information to the Supreme Court which states unequivocally that “[Man X]did not give evidence in relation to plantings on the Casacir quarry land which proved that he had committed perjury at VCAT”, thereby reinforcing his claim against Peter, in spite of the fact that Peter was correct.
Further, in spite of the many times Peter noted their failures in file notes and such, man X, man Y and CASACIR told the Supreme Court that “CASACIR does not have a history of non compliance with planning …permit conditions”. In spite he was called a liar, and in spite of the fact that man X, man Y and CASACIR were providing claims to the court known by Peter to be fraudulent, Peter adamantly supported man X, man Y and CASACIR, and continues to overlook ongoing breaches.
In relation to yesterday’s contribution: interestingly, I received the endorsed plans from Peter today. This is fascinating timing since the plans are stamped 23 January 2012 (i.e. endorsed 15 days ago – so why the delay – did it have something to do with my comment yesterday?)
7 February 2012
I received some FOI results recently that show that the various authorities admitted that: the water monitoring is not as previously required; that the planting was not as required and was sworn to; that plants that had to be replaced were still not replaced in a number of areas; that the un-regimenting still had not been done (even though it was sworn that it had been done early 2010); that the road had not been surfaced (although that has now, very belatedly, been done after a year of not being sealed in further breaches of their permit): that the septic tank had not been officially converted to a holding tank (and that there was no permit for it – just as I have maintained for well over a year); that feral pests are not controlled; that there is a large mound of soil stockpiled near the dirty dam and that it did not appear on the approved plans and had to be removed (but hasn’t been), …. It’s strange, man X, man Y and CASACIR took great offence to me saying that they interpret things how they want to, e.g. that they don’t have to comply with conditions unless they want to – but how else can it be stated if conditions say one thing and things are not complied with (even when the authorities have (on very rare occasions) pointed out that they have to be remedied, but are not). If it is not interpreting them how they want to, then what is it called (other than “failing to comply”)?
Some of the FOI material are the plans for the new office block weighbridge, workshop (etc) that had to be provided as part of condition 1 [emphasis mine] “Before the use/development starts, the approved work plan and work plan conditions approved by the responsible authority which will form part of this permit must include the following amendments to the endorsed work plan and/or the draft work plan conditions submittedwith the application…ii. the location and scale of buildings and fixed plant and equipment, elevations of all buildings and a schedule of construction materials, external finishes and colours and protection signage”. However, in sadly typical fashion (there is a lot of material that had to be provided but had not been), this information was not provided when it had to be but part was only recently provided and, in spite of the 2008 tribunal and the planning scheme saying it would require a further permit, it was not applied for, was not advertised and the requirements were simply overlooked – again. One really has to ask why council are so all fired keen to overlook not only the multitude of failures of man X, man Y and CASACIR but those of its own representatives, such as (but not limited to) Peter McWhinney. It is funny that Peter told me that he would provide me with copies of the plans as soon as they were endorsed. So, either Peter lied to me or man X, man Y and CASACIR commenced the works to build those buildings and other infrastructure without the permission and authorisation to do so (which would certainly not be a first)!
The more that things are overlooked the more the “conspiracy theory” gains credibility. One has to ask what council are gaining out of all this (other than the discovered, but undeclared “conflict of interest”) – and what are the other authorities gaining out of it all – because they have all gone to extraordinary lengths to protect their mates, man X, man Y and CASACIR.
Russell Byard stated “In this case, the Authority had Casacir’s application which defined the extent of the works for which a licence was being sought… As it happens, it also had the opportunity to inspect such works already constructed and in operation. However, even without that advantage, …”! Byard is demonstrating by his statement that he considers it preferable (i.e. an “advantage”) to have works completed before even submitting an application to allow those works, thereby arguing that the authority can then easily ensure consistency between work already done and the approval belatedly sought! This position exhibits blatant disregard for the legislative necessity of seeking permission before works commence! It is unbelievable! No wonder we have suffered so under his hands and why he saw nothing wrong with breaches and especially the many ongoing breaches – he appears to have treated compliance with the law as being completely arbitrary.
To put Byard’s attitude into perspective, out of the 90 paragraphs of reasons contained in the enforcement application Order, 25 paragraphs are spent effectively bagging, ridiculing and belittling me – that is effectively 28% of the reasons spent on finding fault with me when he was supposed to have been addressing the breaches!
In his orders, Byard noted that “[Andrew Walker (our barrister at that hearing)] also said that he had noted my remarks in relation to the possible relevance of an enforcement application under s 114 of the PE Act. As to that, I mentioned that I had referred to enforcement proceedings as possibly being the appropriate approach if there really were problems in relation to contraventions of conditions” – i.e. it was Byard’s own repeated suggestion that we remove the failures to comply and commence an enforcement application, even though it is one of the cancellation criteria. It was as a result of this repeated “instruction” that we instigated the enforcement application for enforcement of conditions. A further consequence of following his advice was that, with a number of the breaches very belatedly removed, the major oomph was taken out of the cancellation application, and having it subsequently fail, he then termed it as having been brought vexatiously and awarded costs brought against us – at least in part for having followed his advice!
During his testimony, taken under oath, man X used and/or tried to use hearsay a number of times and Byard did not comment on it; or ask him to stop, or ask him to call in the people that he was quoting, or do anything but allow it. In fact, when man X was challenged by Sadler over the use of hearsay in relation to the quoting of Peter McWhinney (council), Byard said “But I want to know what the answer is” – yet the photos and FOI results I provided were not of sufficient interest for him to have actually read or looked at them, and he showed that he would rather listen to hearsay and unsubstantiated claims than fact, and apparently considered such rubbish to be far more credible than proven facts.
We had mistakenly believed that the enforcement hearing was to discover whether or not there were breaches and whether those breaches required enforcement orders. As stated, I had provided some 200 pages of photos, documents and FOI results in support of our claim that there were a significant number of such breaches, while man X, man Y and CASACIR provided virtually nothing (I think one photo of the D9C drill, to show that it was on site on at least one occasion). It was quickly revealed that the authorities were not going to be required to address either the proofs provided or claims made (in fact, Anne, having requested to be a party then wasted precious time detailing why she should not be a party, and refused to answer questions). And it quickly became a rubbish me time – not only without any intervention from Byard, but with his actually assistance. In fact, Byard looked reasonably bored until Peake was attempting to attack me and my character, then Byard leant forward and was very interested and said he would take note of the allegations, which he certainly did. He exhibited no interest in finding out what breaches there were – in spite of that being the supposed sole reason for the hearing, and he certainly did not seek to discover the truth!
One of the other areas of bias exhibited was when Byard allowed man X to use an address in his affidavits that:
- was not his home address,
- was not a location at which he had ever lived,
- was not the registered office of the company,
- was not the address of the quarry in question, and
- was the office address for a completely different quarry,
without comment, without being rubbished and without being discredited for his failure to be accurate. In contrast to that rubbish, the address I used in my affidavit:
- was the registered address for the applicant,
- was the address of the property that is adjacent to the Neerim North quarry,
- was the address that is detrimentally affected by the Neerim North quarry and
- was the address at which we lived from time to time (and in fact was our only dwelling for about 9 months (from October 2002 to June 2003), and was our primary residence until the end of 2006 when we moved away from living there permanently because of the severity of the impacts and because I had to start the fight to protect our amenity, water and property rights)
but about which Byard said “…[they] live at Narre Warren although she says they sometimes stay at the Neerim North property. Its address is 140 Pearce Road, Neerim North. [She] in fact gave that as her address in the affidavit filed in this proceeding that she swore on 16 September 2010, although she readily concedes she does not reside there full time and that it is not her regular residential address”. He implied that I was lying ([emphasis mine] “although she says they sometimes stay at the Neerim North”). If he was going to even pretend to be fair minded why did he not rubbish man X for having far less reason to use the address he did?
I would be most interested to know the psychological or psychiatrical qualifications Byard has to make the diagnoses he has made – there is absolutely no doubt that he needs to update his skills because he is very, very mistaken in his interpretations of my thoughts, feelings, actions, motives and the like.
There is so very much more that I can say on the site, and probably will at some stage – I have it all ready to put out there. I like the old saying that I contend is very relevant: “The truth only hurts those who won’t admit it”.