Any reference to CASACIR or its directors, shareholders, owners or operators relates 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.
The Water Act 1989is very explicit that, because Kookaburra Creek flowed through our property, we had the right to that natural flow for stock and domestic use, without a need for a permit:
“8. Continuation of private rights to water
(1) A person has the right to take water, free of charge, for that person’s domestic and stock use from a waterway or bore to which that person has access—…
(b) because that person occupies the land on which the water flows or occurs; or…
(3) A person has the right to use—
(a) water taken by that person from a waterway or bore under a right conferred by subsection (1); or
(b) while it is within the waterway or bore, water which that person has the right to take under subsection (1).
(4) A person has the right to use—
(a) water taken or received by that person in accordance with a licence or other authority issued to that person under this Act or any corresponding previous enactment”
Man X, man Y and CASACIR had already illegally and in an unauthorised manner diverted the natural flow of Kookaburra Creek once – without permit, licence, authorisation, or permission to do so (and in the face of our strong and repeated objections).
Flow illegally piped
The flow, having been illegally piped is then sent underground instead of being returned to its previous bed and banks
Note the proximity of the weir where monitoring was supposed to take place is so close to the road traversed by vehicles and machinery
Even when the road was completed, and a scone road headed of from adjacent to the weir, they were too close and monitoring was conducted after this. The polluted and contaminate water was used as the baseline (see the disgusting colour)
And then, during the legal action we took out against them, they said that they would restore the flow within the time limits we gave them and they signed a binding Terms of Settlement Agreement at the tribunal to provide their guarantee to do so. However, they then failed to do so for many more months – until we were in the process of taking further legal action against them by having our claim against them re-instated – then, and then only, did they restore the flow. However, they committed fraud by signing the Agreement. How did they commit fraud? They only signed the Agreement in order to get out of the legal hearing the next day, and because they knew that they were never going to comply with it in the long-term – making them having signed the Terms a fraud.
Man X, man Y and CASACIR had stated their full intention to permanently remove the spring and its natural flow which feeds Kookaburra Creek, to permanently remove its upper catchment, to quarry through the aquifers which feed it, and to permanently remove the upper reaches of Kookaburra Creek and thereby permanently removing the natural flow from the bed and banks of Kookaburra Creek and our property. Man X, man Y and CASACIR then stated their intention to supposedly “replace” the spring flow with the discharge of quarry wastewater and drainage from a polluted and contaminated settling dam, through a polluted and contaminated dirty dam and what is shown as a narrow, shallow, open drain “swale”, but which they erroneously called a “wetland“! According to EPA documentation man X, man Y and CASACIR had to have our authorisation to send their discharge through our property – however, they have never sought our authorisation and they knew they would not be able to obtain it. Further, even if the authorities circumvented this requirement, there was absolutely no guarantee that the discharge would: be provided, be of suitable quality for cattle, be of sufficient quantity to keep our cattle watered, or be of almost continuous supply (we could not have a dam because of the steepness of the land).
Man X, man Y and CASACIR, against a lot of proof to the contrary, insisted that Kookaburra Creek was a “drainage line”. Presumably this was to allow them to continue to discharge their drainage into it and, as previously stated, to further discharge both drainage and wastewater into it. Permit conditions state: “30 Prior to the commencement of Stage 2 provision must be made for replacement flows into the gully to the south and to the northeast of the Work Authority area to the satisfaction of the responsible authority”, “41 The operator must ensure that any excess flows of water diverted from the site to an existing drainage line under Palmer Road do not detrimentally impact upon the drainage line by causing erosion or any other damage”, “58 The quality of any water discharged from the site (including but not limited to the flows to the gully to the south of the land) must be tested and maintained to the satisfaction of the responsible authority, Southern Rural Water and West Gippsland Catchment Management Authority. The testing must include the following: … iv. prepare a contour drain section and level design based upon peak flow estimates at various locations along the drain”, and “27 Prior to Stage 2 works commencing and based on the results of the flow and water quality monitoring program, a spring water management plan to the satisfaction of the West Gippsland Catchment Management Authority is required. The plan will need to ensure that no adverse impacts to downstream waterway health result from the activities including impacts once quarrying operations have ceased”. The work plan (approved by DPI and endorsed by council, and which was the basis of both the work authority and the planning permit) stated: “6.6.2…Regular monitoring of the weir during Stage 1 will quantify when quarrying activities change the flow regime from the spring. CASACIR will, by supplementing and replacing the spring flows with clean water from the surface dam, ensure that the flow regime below the weir is similar to the flow regime before quarrying commenced”, “6.6.4 A requirement of the Town Planning Permit is to construct a “wetlands treatment area”. The sole purpose of the wetlands is to treat make up water pumped from the quarry to [Kookaburra Creek] south of the extraction area. The wetlands will be operational when the spring is intersected some time during Stage 2. To achieve this end it is proposed that the wetlands will be constructed part way through Stage 1 to allow vegetation to establish”, and figure 5 described the proposed Wetland as a “Typical wetlands channel construction 360m in length, water flow through system to treat an average flow of 9000l per day up to a maximum of maximum [sic] 35,000l per day, with a Collector at the end to feed a pipe under the road then poly pipe to carry discharge to southern [Kookaburra Creek], having side batters 1V:3H, ~4m wide open channel & 250mm deep channel ~3m wide at base, with planted reeds and sedges. Stabilsiing boards and Weir to link upper and lower channels”. The planning report stated: “3.12.1 Water from the primary settling dam may be pumped into the [existing dirty surface storage dam located in the south east corner of stage 1] for … distribution to immediate neighbours(s)”, “3.12.2 [The] weir is being monitored on a weekly basis to determine the flow regime of the spring within the proposed extraction area. This will continue during Stage 1 operations and will quantify if and when these operations change the flow regime from the spring. The proponent will ensure the flow regime below the weir remains similar to the flow regime prior to quarry operations commencing. This will be achieved by replacing any flows lost with … water from the existing surface water dam” and “4.10… if there is any reduction of water flows from the existing spring feeding [Kookaburra Creek] to the south, these can be replenished…”.
The hydrogeological assessment (belatedly approved by SRW and WGCMA, and was required under permit conditions 53 & 54) stated: “5 Any loss in spring flow …”, “6.3 The spring to the west of the old quarry will be excavated in Stage 2. This will result in, a loss of groundwater inflow to [Kookaburra Creek] immediately to the south of Pearce Road and in the south-west corner of the property. Water within the existing settling dam at 420 m AHD may be pumped to the existing [filthy] water dam in the south-east corner of the proposed Work Authority area to make up losses of spring water into [Kookaburra Creek]”, and “6.4 The … make up water … into [Kookaburra Creek] below Pearce Road … to replenish [Kookaburra Creek]…”.
It all sounded good to the authorities (but not to us), but there were so many discrepancies that it was ridiculous. For example, it was the proposed discharge of wastewater and drainage, it was from a filthy dam, the “wetland” was really a narrow, shallow open drain “swale” with no mechanism for cleaning it out, the only flow measurements taken before the quarry commenced were taken during drought and not during normal flow times (allowing them to provide us with a little as they can if they are short of water, and there was no “quality” taken until works had been taking place in the quarry for over 4 months and the polluted and contaminated measurements were used as the baseline!
The Water Act 1989, Vicmap 8122-3-3, WGCMA, council, Minister for Water, Geographical Names, DSE documents, WGCMA documents, etc all said that Kookaburra Creek was, and is, a “waterway”, However, man X, man Y and CASACIR, assuming superior knowledge, disputed this (in their Points of Defence in relation to our water claim against them [we were the “claimants” and they were the “respondents”]): “4 The respondent denies that the claimants’ and and the respondent’s land is traversed by a waterway. There is no waterway as defined under the Water Act 1989 that traverses the Claimants’ land”. In addition, Byard of the tribunal, for some reason, took man X, man Y and CASACIR’s side in referring to Kookaburra Creek as a drainage line in spite of legislation and the authorities stating that it is a waterway (hmmm).
In spite of the Water Act 1989, DSE documents, SRW documents and WGCMA documents all clearly stating that we had the legal right to the natural flow of Kookaburra Creek for stock and domestic use, man X, man Y and CASACIR disputed this (in their Points of Defence in relation to our water claim against them [again, we were the “claimants” and they were the “respondents”]): “7 The respondent denies the allegations in paragraph 7 [claim/allegation by us: “7. Pursuant to s.8 Water Act 1989 the Claimants are entitled to take and use water from the Kookaburra Creek for stock and domestic purposes”].
None of the authorities presented anything that would make us think that they were going to enforce section 8 of the Water Act – quite the reverse, when asked, they either said nothing or just said it will be enforced (with no details). However, past performance is the indicator of future behaviour.
If this can happen to us it can happen to you – if big business wants your water and the authorities choose them over you then your water rights are absolutely not safe, in spite of legislation saying it is.